9332 Federal Register / Vol. 86, No. 28 / Friday, February 12, 2021 / Notices 

and interventions in lieu of paper using 

the ‘‘eFile’’ link at http://www.ferc.gov. 

Persons unable to file electronically may 

mail similar pleadings to the Federal 

Energy Regulatory Commission, 888 

First Street NE, Washington, DC 20426. 

Hand delivered submissions in 

docketed proceedings should be 

delivered to Health and Human 

Services, 12225 Wilkins Avenue, 

Rockville, Maryland 20852. 

Comment Date: 5:00 p.m. Eastern 

Time on Tuesday, February 23rd, 2021. 

Dated: February 8, 2021. 

Nathaniel J. Davis, Sr., 

Deputy Secretary. 

[FR Doc. 2021–02898 Filed 2–11–21; 8:45 am] 

BILLING CODE 6717–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–R06–OW–2020–0608; FRL–10019–98– 

Region 6] 

Approval of the Application by the 

State of Texas for Partial National 

Pollutant Discharge Elimination 

System (NPDES) Program 

Authorization for Oil and Gas 

Discharges 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice. 

SUMMARY: On January 15, 2021, the 

Regional Administrator for the United 

States Environmental Protection Agency 

(EPA), Region 6 approved the request of 

the State of Texas’ for Partial National 

Pollutant Discharge Elimination System 

(NPDES) program authorization for 

discharges from produced water, 

hydrostatic test water and gas plant 

effluent, hereafter referred to as oil and 

gas discharges, within the State of 

Texas. On October 12, 2020, the 

Governor of Texas submitted the 

application for NPDES oil and gas 

authorization, seeking approval for the 

Texas Commission on Environmental 

Quality (TCEQ) to implement a Major 

Category Partial NPDES Program as 

provided for under the Clean Water Act 

(CWA or ‘‘the Act’’). Today, the EPA is 

providing public notice of the approval 

of the State’s submittal of the 

application for NPDES oil and gas 

authorization. 

DATES: Pursuant to 40 CFR part 

123.61(c), the Partial NPDES Program of 

the State of Texas was approved and 

became effective January 15, 2021. 

To View and/or Obtain Copies of 

Documents. A copy of the application 

and related documents may be viewed 

or downloaded, at no cost, from the EPA 

website at https://www.epa.gov/npdespermts. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Kilty Baskin, EPA Region 6 Office, 

NPDES/Wetland Review Section (R6 

WD–PN), 214–665–7500, baskin.kilty@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

A. General Information 

1. Does this action apply to me? 

Entities potentially affected by this 

action include the regulated oil and gas 

community and citizens within the 

State of Texas. As of January 15, 2021, 

authority to implement the NPDES 

permitting, compliance monitoring and 

enforcement program for oil and gas 

activities in Texas transferred from the 

EPA to the TCEQ. The TCEQ’s authority 

applies on land within the State of 

Texas and extends 3.0 statute miles (1 

statute mile equals 5,280 feet) offshore 

into the Gulf of Mexico. The EPA retains 

jurisdiction for discharges more than 3 

statute miles offshore in the Gulf of 

Mexico. Thus, CWA oil and gas 

exploration and production related 

discharges in these waters remain 

subject to the EPA’s Outer Continental 

Shelf of the Gulf of Mexico General 

Permit (GMG290000). In addition, spills 

or releases of hydrocarbons subject to 

the Oil Pollution Act are not subject to 

the NPDES program. The EPA’s 

authority to address releases of 

hydrocarbons to waters of the United 

States under the Oil Pollution Act is not 

subject to the NPDES program and 

therefore cannot be delegated to states. 

The TCEQ will continue to refer 

incidents to EPA as the regulatory 

authority for the Oil Pollution Act. The 

TCEQ NPDES program does not apply 

in areas of Indian country as defined in 

18 U.S.C. 1151. The EPA retains 

jurisdiction over discharges in these 

areas. If you have any questions 

regarding the applicability of this action 

to a particular entity, please contact Ms. 

Kilty Baskin at 214–665–7500, 

baskin.kilty@epa.gov. 

2. What action is the EPA taking? 

The EPA is providing notice of the 

approval of the State of Texas’ request 

for partial NPDES program 

authorization for oil and gas discharges 

within the State. The Governor of Texas 

submitted the application for NPDES oil 

and gas authorization pursuant to 

Section 402(b) of the CWA, seeking 

approval for the TCEQ to implement a 

major category partial NPDES program 

under Section 402(n)(3) of the Act. In 

accordance with CWA Section 402(b), 

33 U.S.C. 1342(b), and NPDES 

regulations at 40 CFR part 123, the EPA 

shall approve a State’s application for 

program approval unless adequate 

authority does not exist as required by 

the CWA. 

3. What is the EPA’s authority for taking 

this action? 

CWA section 402 established the 

NPDES permitting program and gives 

the EPA authority to approve state 

NPDES programs. 33 U.S.C. 1342(b). 

CWA Section 402(n)(3) authorizes the 

EPA to approve a Major Category Partial 

Permit Program covering administration 

of a major category of discharges if ‘‘(A) 

such program represents a complete 

permit program and covers all of the 

discharges under the jurisdiction of a 

department or agency of the State; and 

(B) the Administrator determines that 

the partial program represents a 

significant and identifiable part of the 

State program required by subsection 

(b).’’ 33 U.S.C. 1342(n)(3). 

State Permit Program Approval: 

Section 402 of the CWA, 33 U.S.C. 1342, 

created the NPDES program under 

which the EPA may issue permits 

authorizing the point source discharge 

of pollutants to waters of the United 

States under conditions required by the 

Act. CWA Section 402(b), 33 U.S.C. 

1342(b), provides that the EPA shall 

approve a State’s request to administer 

its own permit program provided the 

State has appropriate legal authority and 

a state program that meets the Act’s 

requirements. The regulatory 

requirements for state program 

submissions and for EPA state program 

approval are set forth in 40 CFR part 123 

(https://www.ecfr.gov/). 

Decision Process: Pursuant to 40 CFR 

123.61(b), the EPA must approve or 

disapprove Texas’ application for 

NPDES oil and gas authorization within 

90 days of receipt of a complete program 

submission, unless this review period is 

extended by mutual agreement between 

the EPA and the State pursuant to 40 

CFR 123.21(d). Under CWA § 402(b) 

and 40 CFR part 123, the State must 

show, among other things that it has the 

authority to issue permits that comply 

with the Act, authority to impose civil 

and criminal penalties for permit 

violations, and authority to ensure that 

the public is given notice and an 

opportunity for a hearing on each 

proposed permit. Once the State’s 

request for program approval is declared 

complete, the CWA and its 

implementing regulations require the 

EPA to provide notice of the State’s 

application and allow a comment period 

of at least 45 days during which the 

public may express their views on the 

proposed State program. The EPA’s 

public notice of the application must 

Federal Register / Vol. 86, No. 28 / Friday, February 12, 2021 / Notices 9333 

also provide notice of a public hearing 

to be held no less than 30 days after 

publication of the notice. See 40 CFR 

part 123.61. After the close of the public 

comment period, the EPA determines 

whether to approve or disapprove the 

State’s application based on the 

requirements of section 402(b) of the 

CWA and 40 CFR part 123. 

Summary of the State’s Application/ 

Proposed Program: By letter dated 

October 9, 2020, and received by the 

EPA on October 12, 2020, the Governor 

of the State of Texas submitted a request 

for NPDES program authorization for oil 

and gas discharges in Texas. The request 

was for approval of a Major Category 

Partial Permit Program under CWA 

section 402(n)(3) covering 

administration of a major category of 

discharges within the State. The State’s 

NPDES oil and gas program would be 

administered by the TCEQ. The TCEQ 

currently implements an approved 

partial NPDES permitting program, the 

Texas Pollutant Discharge Elimination 

System (TPDES) program, for discharges 

to waters of the State in accordance with 

Clean Water Act § 402(n)(3). However, 

when TCEQ was granted authority by 

the EPA in 1998 to administer the 

NPDES program for discharges under its 

jurisdiction, oil and gas discharges were 

regulated by the Railroad Commission 

of Texas (RRC) and thus were not 

included as part of the approved TPDES 

program. As a result, the EPA retained 

permitting authority for oil and gas 

discharges in Texas. In 2019, House Bill 

2771, 86th Texas Legislature, amended 

Texas Water Code § 26.131 to transfer 

jurisdiction of discharges of produced 

water, hydrostatic test water, and gas 

plant effluent into water in the state 

from the RRC to the TCEQ upon NPDES 

program authorization from the EPA for 

such discharges. A copy of Texas Water 

Code § 26.131 was attached as 

Attachment A to the State’s application. 

In accordance with 40 CFR part 

123.21, the State’s application included 

the following 5 elements: (1) A letter 

from the Governor requesting program 

approval; (2) A complete program 

description, as required by 40 CFR part 

123.22, describing how the State intends 

to carry out its responsibilities under 

the Act and its implementing 

regulations; (3) An Attorney General’s 

statement as required by 40 CFR part 

123.23; (4) A Memorandum of 

Agreement (MOA) with the Regional 

Administrator as required by 40 CFR 

part 123.24; and (5) Copies of all 

applicable State statutes and 

regulations, including those governing 

State administrative procedures. 

A complete program description was 

included as Attachment E to the State’s 

submission. The program description 

was divided into four (4) chapters: 

• Overview of the TCEQ, as required 

by 40 CFR 123.22(a) and (b); 

• Oil and Gas Permitting Program 

Description, as required by 40 CFR 

123.22(c), (d) and (g); 

• Oil and Gas Enforcement Program 

Description, as required by 40 CFR 

123.22(d), (e) and (g); and 

• Program Costs and Funding 

Description, as required by 40 CFR 

123.22(b)(1)–(3). 

A Statement of Legal Authority, 

signed by the Texas Attorney General, 

was included as Attachment C to the 

State’s submission. The Statement of 

Legal Authority outlines the TCEQ’s 

legal authority to regulate the discharge 

of produced water, hydrostatic test 

water, and gas plant effluent into water 

in the state resulting from oil and gas 

activities upon NPDES program 

authorization from the EPA. The 

Statement of Legal authority notes that 

when House Bill 2771 became effective, 

the term ‘‘produced water’’ was not 

defined in State rules or statutes. For the 

purposes of the TCEQ’s implementation 

of amended Tex. Water Code § 26.131, 

the TCEQ defined the term ‘‘produced 

water’’ in 30 Tex. Admin. Code 

§ 305.541(b) as ‘‘all wastewater 

associated with oil and gas exploration, 

development, and production activities, 

except hydrostatic test water and gas 

plant effluent, that is discharged into 

water in the state, including waste 

streams regulated by 40 CFR part 435.’’ 

Through the Statement of Legal 

Authority, the Texas Attorney General 

certified that amended Tex. Water Code 

§ 26.131, in conjunction with the 

definition of produced water in 30 Tex. 

Admin. Code § 305.541(b) and the 

TCEQ’s existing authority to issue 

permits for the discharge of pollutants 

into water in the state in Tex. Water 

Code § 26.121, provides the TCEQ with 

authority to issue TPDES permits for the 

discharge of all oil and gas wastewater 

into water in the State in Texas. 

The MOA between the TCEQ and the 

EPA concerning the TPDES program 

and a MOA Addendum to address oil 

and gas discharges was included as 

Attachment D to the State’s submission. 

The MOA Addendum recognizes that 

one of the most important goals for 

transferring NPDES program authority 

to Texas for oil and gas discharge 

permitting, compliance monitoring and 

enforcement is to promote and facilitate 

the expeditious transformation of 

federal NPDES and state permits into 

one TPDES permit. The MOA 

Addendum describes in detail the 

permitting, compliance monitoring and 

enforcement authority that will transfer 

to the TCEQ on the date of program 

authorization. Upon authorization, 

jurisdiction for EPA issued oil and gas 

permits and primary enforcement 

authority for oil and gas discharges 

within the State will be transferred to 

the TCEQ, with certain limited 

exceptions. The MOA Addendum 

describes in detail those exceptions, i.e., 

permits and enforcement actions for 

which the EPA will initially retain 

jurisdiction, such as permits for which 

appeals are pending or enforcement 

actions that are currently ongoing. The 

MOA Addendum also details the 

actions that will trigger transfer of 

jurisdiction for those permits and 

enforcement actions to TCEQ, for 

example resolution of the permit appeal 

or resolution of the ongoing 

enforcement action. 

Copies of all applicable State statutes 

and regulations, as well as the TCEQ 

Operating Policies and Procedures, were 

included as Attachment F to the State’s 

submission. Please note that the TCEQ 

adopted by reference the EPA’s Oil and 

Gas Effluent Limitation Guidelines (40 

CFR part 435). 

On November 5, 2020, the TCEQ 

submitted revised language to 

Attachment E—Chapter 3 Enforcement 

Program Description for clarification 

purposes. The revised language did not 

affect substantive changes to the State’s 

program submission and was not a 

material change under 40 CFR part 

123.12(c). The revised language clarified 

that the TCEQ’s existing spill response 

program has been evaluated and 

determined to be adequate for the 

inclusion of wastewater spills from oil 

and gas operations subject to the NPDES 

program. Upon the EPA’s approval of 

the State’s request for NPDES authority 

for oil and gas discharges, primary 

enforcement authority for such spills 

and releases will transfer to the TCEQ. 

Spills or releases of hydrocarbons 

subject to the Oil Pollution Act are not 

subject to the NPDES program. The 

EPA’s authority to address releases of 

hydrocarbons to waters of the United 

States under the Oil Pollution Act 

cannot be delegated to states and the 

TCEQ will continue to refer incidents to 

the EPA as the regulatory authority for 

the Oil Pollution Act. 

The EPA determined that the State’s 

October 12, 2020 program submission 

constituted a complete package under 

40 CFR part 123.21, and a letter of 

completeness was sent to the State on 

November 12, 2020. Pursuant to 40 CFR 

part 123.21, within 90 days of the EPA’s 

receipt of the State’s complete program 

submission, or by January 11, 2021, the 

EPA was required to approve or 

disapprove the program based on the 

9334 Federal Register / Vol. 86, No. 28 / Friday, February 12, 2021 / Notices 

requirements of CWA § 402(b) and 40 

CFR part 123 and taking into 

consideration all comments received. 

However, pursuant to 40 CFR part 

123.21(d), the EPA and the State agreed 

via email dated January 5, 2021, to 

extend the 90-day statutory review 

period deadline from January 11, 2021 

to January 19, 2021 to allow the EPA 

additional time to consider and respond 

to all public comments. 

Public notice of the application: On 

November 27, 2020, the EPA published 

notice of the State’s application for 

NPDES program authorization for oil 

and gas discharges within the State and 

opened a 45-day comment period as 

required by 40 CFR part 123.61(a), 

which ended on January 11, 2021 (85 FR 

76076). 

Public notice of the State’s 

application was also published in the 

following newspapers: 

Dallas Morning News 

Houston Chronicles 

El Paso Herald 

El Paso Time 

Austin Times 

Public Participation Process: The EPA 

held a public meeting and public 

hearing regarding the State’s application 

virtually via Adobe Connect on January 

5, 2021. The EPA deviated from its 

typical hearing approach because of the 

President’s national emergency 

declaration due to the COVID–19 

pandemic. Because of the current Center 

for Disease Control and Prevention 

recommendations, as well as state and 

local orders for social distancing to limit 

the spread of COVID–19, the EPA could 

not hold in-person public meetings/ 

public hearings. The public meeting 

included an overview of federal and 

state NPDES program requirements, the 

state program approval and submittal 

process (in accordance with 40 CFR part 

123), and the general elements of Texas’ 

proposed program for administration of 

the NPDES program for oil and gas 

discharges (including the roles and 

responsibilities of the EPA and the 

TCEQ). The public hearing provided 

interested parties the opportunity to 

provide oral testimony for the official 

record. There were 52 attendees at the 

public meeting and 35 attendees at the 

public hearing. Two individuals 

presented oral testimony at the public 

hearing and 156 written comments were 

received by EPA prior to the close of the 

comment period. 

Summary of Comments Received: In 

addition to the oral testimony at the 

public hearing, the EPA received 156 

comments on the State of Texas’ request 

for NPDES program authorization for oil 

and gas discharges. Comments were 

received from the following entities: 

The Texas Alliance of Energy Producers 

Environmental Defense Fund 

The Sierra Club, Lone Star Chapter 

Bay Coastal Watch Association 

Audubon Texas 

Pioneer Natural Resources, USA, Inc. 

Texas Independent Producers and 

Royalty Owners Association 

The American Exploration and 

Production Council (AXPC) 

Citizens of the local communities 

EPA received 156 written comments. 

Of those 156 comments, approximately 

130 were very similar in nature, 

expressing concern with the State’s 

request to implement the NPDES oil and 

gas program in the State and requesting 

an extension of the 45-day public 

comment period. Commenters in 

opposition to EPA’s approval of the 

State program expressed various 

concerns, including TCEQ’s ties to the 

oil and gas industry, the lack of current 

understanding as to the composition of 

produced waters, and the need for 

updated effluent limitations guidelines 

related to oil and gas discharges. At 

least one commenter acknowledged that 

the State’s program likely met the 

minimum requirements for 

authorization under the CWA and 40 

CFR part 123, but expressed concern 

that the EPA retain sufficient oversight 

over permit review and issuance to 

ensure compliance with the CWA. 

The EPA received 6 comments in 

support of the State’s request for 

program authorization. These 

commenters asserted, among other 

things, that TCEQ has extensive 

experience with writing NPDES permits 

for a wide range of discharges, that the 

requirement to incorporate applicable 

effluent limitations guidelines into 

discharge permits will not change with 

the transfer of NPDES permitting 

authority from EPA to TCEQ, and that 

TCEQ is the agency most knowledgeable 

with regard to the quality of State water 

bodies and the permit requirements 

needed to protect those water bodies. 

All comments received by the EPA 

were considered by the agency in 

making its final decision to approve 

Texas’ request for program 

authorization. Copies of all comments 

received and EPA’s written responses to 

those comments are available at https:// 

www.epa.gov/npdes-permits. 

Additional information about the 

State’s request for partial NPDES 

program authorization, including a copy 

of the State’s application and supporting 

documents, is available at 

www.regulations.gov, Docket No. EPA– 

R06–2020–0608, or at EPA’s Region 6 

web page https://www.epa.gov/npdespermits. Documents from the public 

meeting and a transcript of the public 

hearing are available at the web page. 

On December 17, 2020, the EPA held 

a virtual tribal consultation conference 

to notify affected Tribes of the 

opportunity for formal and informal 

consultation, as well as the availability 

of EPA staff for informal discussions 

through-out the public participation 

process. The federally-recognized Texas 

Tribes that were represented included: 

The Alabama-Coushatta Tribes of Texas 

and the Kickapoo Traditional Tribe of 

Texas. The Ysleta del Sur Pueblo was 

not in attendance. The EPA did not 

receive any comments from the Tribes 

during the 45-day public comment 

period on the State of Texas’s request 

for NPDES program authorization for oil 

and gas discharges within the State or 

a request to initiate formal consultation. 

Therefore, the EPA concluded that a 

formal tribal consultation was not 

required. 

Authority: This action is taken under 

the authority of section 402(b) of the 

Clean Water Act as amended, 33 U.S.C. 

1342(b). Pursuant to 40 CFR 123.61(c), 

I hereby provide public notice of the 

EPA’s final action approving the State of 

Texas’ request for NPDES program 

authorization for discharges of produced 

water, hydrostatic test water, and gas 

plant effluent, otherwise known as oil 

and gas discharges, within the State. 

Dated: February 5, 2021. 

David Gray, 

Acting Regional Administrator, Region 6. 

[FR Doc. 2021–02895 Filed 2–11–21; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–R10–OAR–2020–0563; FRL–10016– 

50–Region 10] 

Final Eligibility Determination for the 

Kalispel Tribe To Be Treated in the 

Same Manner as a State Under 

Provisions of the Clean Air Act 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice. 

SUMMARY: This notice announces that on 

December 1, 2020, the Environmental 

Protection Agency (EPA) Region 10 

Regional Administrator determined that 

the Kalispel Tribe meets the eligibility 

requirements of the Clean Air Act (CAA) 

to be treated in the same manner as a 

state (TAS) for non-regulatory purposes 

under certain CAA provisions. None of 

the provisions for which the Kalispel