Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Notices 33655

Dated: June 15, 1998.

Donald G. Barnes,

Staff Director, Science Advisory Board.

[FR Doc. 98–16407 Filed 6–18–98; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

[OPP–00544; FRL–5798–9]

State FIFRA Issues Research and

Evaluation Group (SFIREG); Open

Meeting

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Notice.

SUMMARY: The State FIFRA Issues

Research and Evaluation Group

(SFIREG) will hold a 2–day meeting,

June 29 and 30, 1998. This notice

announces the location and times for

the meeting and sets forth the tentative

agenda topics. The meetings are open to

the public.

DATES: The SFIREG will meet on

Monday, June 29, 1998, from 8:30 a.m.

to 5 p.m. and Tuesday, June 30, 1998,

from 8:30 a.m. to 12 noon.

ADDRESSES: The meeting will be held at:

The Ronald Reagan National Airport

Doubletree Hotel, 300 Army Navy Drive,

Arlington-Crystal City, VA.

FOR FURTHER INFORMATION CONTACT: By

mail: Elaine Y. Lyon, Field and External

Affairs Division, Office of Pesticide

Programs (7506C), Environmental

Protection Agency, 401 M St., SW.,

Washington, DC 20460. Office location

and telephone number: 1921 Jefferson

Davis Highway, Arlington-Crystal City,

VA, CM–II, (703) 305–5306, (703) 308–

1850 (fax); e-mail:

lyon.elaine@epamail.epa.gov.

SUPPLEMENTARY INFORMATION: The

tentative agenda of the State FIFRA

Issues Research and Evaluation Group

includes the following:

1. Outcome of the Second Annual

Antimicrobial National Workshop.

2. Consumer Information Sheets for

Treated Wood.

3. Pesticide Use/Usage Data.

4. Pesticide Residue Data.

5. Update on Biotechnology.

6. OPP Updates on the following:

Quality Assurance Project Plan (QAPP)

Food Quality Protection Act

(i) Section 18 Rule

(ii) Tolerance Reassessment Advisory

Committee

(iii) Impact on 24c

Worker Protection Standard

Certification and Training Advisory

Group

International Activities - (NAFTA)

Bee Labeling

Chlorine Gas RED

PR Notice for Pesticide Products Used in

Greenhouses

Label Language - mandatory vs. advisory

7. Update on the Office of

Enforcement and Compliance Assurance

activities.

8. Regional and Committee Reports -

Presentation of Issue Papers.

9. Other topics as appropriate.

List of Subjects

Environmental protection.

Dated: June 15, 1998.

Jay Ellenberger,

Director, Field and External Affairs Division,

Office of Pesticide Programs.

[FR Doc. 98–16573 Filed 6–18–98; 8:45 am]

BILLING CODE 6560–50–F

ENVIRONMENTAL PROTECTION

AGENCY

[FRL–6108–9]

Settlement Under Section 122(h) of the

Comprehensive Environmental

Response, Compensation and Liability

Act (CERCLA); In the Matter of

Spiegelberg Superfund Site, Green

Oak Township, MI

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Settlement of CERCLA section

107 Cost Recovery Matter.

SUMMARY: EPA is proposing to settle a

cost recovery claim with a potentially

responsible party (PRP) with regard to

past costs at the Spiegelberg site (the

Site) in Green Oak Township, Michigan.

EPA is authorized under section 122(h)

of the CERCLA to enter into this

administrative settlement.

Response costs totaling $200,873.35

were incurred by EPA, between

December 30, 1993 and September 30,

1997, in connection with the remedial

action at the Site. On September 25,

1997 and October 22, 1997, EPA sent

the PRP demands for reimbursement of

the EPA’s past costs. The Settling Party

has agreed to pay $194,000 to settle

EPA’s claim for reimbursement of

response costs related to the Site. The

U.S. Department of Justice has approved

this settlement, consistent with section

122(h)(1) of CERCLA.

The EPA is proposing to approve this

administrative settlement because it

reimburses EPA, in part, for costs

incurred during its response activities at

this Site.

DATES: Comments on this administrative

settlement must be received by no later

than July 20, 1998.

ADDRESSES: Written comments relating

to this settlement, Docket Number V–

W–98–C–461, should be sent to Cynthia

N. Kawakami, Associate Regional

Counsel, U.S. Environmental Protection

Agency, Region 5, Mail Code: C–14J, 77

West Jackson Boulevard, Chicago,

Illinois 60604–3590.

FOR FURTHER INFORMATION CONTACT:

Copies of the Agreement and the

Administrative Record for this Site are

available at U.S. Environmental

Protection Agency, Region 5, Superfund

Division, Emergency Response Branch,

77 West Jackson Boulevard, Chicago,

Illinois 60604–3590. It is strongly

recommended that you telephone Ms.

Denise Williams at (312) 886–9481

before visiting the Region 5 Office.

Authority: The Comprehensive

Environmental Response, Compensation, and

Liability Act of 1980, as amended, 42 U.S.C.

9601 et seq.

Dated: May 22, 1998.

William E. Muno,

Director, Superfund Division.

[FR Doc. 98–16405 Filed 6–18–98; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

[FRL–6111–6]

State Program Requirements;

Application To Administer the National

Pollutant Discharge Elimination

System (NPDES) Program; Texas

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Application for approval of

Texas Pollutant Discharge Elimination

System.

SUMMARY: The State of Texas has

submitted a request for approval of the

Texas Pollutant Discharge Elimination

System (TPDES) program pursuant to

section 402(b) of the Clean Water Act

(CWA or ‘‘the Act’’). With this request,

the Texas Natural Resource

Conservation Commission (TNRCC)

seeks approval to administer a major

category partial permit program for all

discharges of pollutants into waters of

the United States under its jurisdiction.

Today, EPA Region 6 is providing

public notice of Texas’ request for

TPDES program approval and of both a

public hearing and public comment

period on the State’s program approval

submission. EPA will either approve or

disapprove the State’s request after

considering all comments it receives.

ADDRESSES FOR VIEWING/OBTAINING

COPIES OF DOCUMENTS: Copies of Texas’

TPDES program approval submission
33656 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Notices

(referred to throughout this notice as

Texas’ ‘‘application’’) and all other

documents in the official record (Docket

No. 6WQ–98–1) are available for

inspection from 9 am to 4 pm, Monday

through Friday, excluding legal

holidays, at EPA Region 6, 12th Floor

Library, 1445 Ross Ave., Dallas, Texas

75202.

A copy of Texas’ TPDES application

is also available for inspection from 8

am to 5 pm, Monday through Friday,

excluding State holidays, at Record

Services, Room 1301, Building F,

TNRCC, 12100 Park 35 Circle, Austin,

Texas 78753. You may contact Records

Services at (512) 239–0966.

Chapters 1–8 of Texas’ TPDES

application are available for review, but

not copying, at the following TNRCC

Regional Offices:

Region 1 (Amarillo): 3918 Canyon Dr.,

Amarillo, TX 79109–4996, (806) 353-

9251, FAX (806) 358–9545

Region 2 (Lubbock): 4630 50th St., Suite

600, Lubbock, TX 79414–3509, (806)

796–7092, FAX (806) 796–7107

Region 3 (Abilene): 209 S. Danville,

Suite B200, Abilene, TX 79605–1451,

(915) 698–9674, FAX (915) 692–5869

Region 4 (Arlington): 1101 E. Arkansas

Ln., Arlington, TX 76010–6499, (817)

469–6750, FAX (817) 795–2519

Region 5 (Tyler): 2916 Teague Dr., Tyler,

TX 75701–3756, (903) 535–5100, FAX

(903) 595–1562

Region 6 (El Paso): 7500 Viscount Blvd.,

Suite 147, El Paso, TX 79925–5633,

(915) 778–9634, FAX (915) 778–4576

Region 7 (Midland): 3300 North A St.,

Bldg. 4, Suite 107, Midland, TX

79705–5421, (915) 570–1359, FAX

(915) 570–4795

Region 8 (San Angelo): 301 W.

Beauregard Ave., Suite 202, San

Angelo, TX 76903–6326, (915) 655–

9479, FAX (915) 658–5431

Region 9 (Waco): 6801 Sanger Ave.,

Suite 2500, Waco, TX 76710–7807,

(254) 751–0335, FAX (254) 772–9241

Region 10 (Beaumont): 3870 Eastex

Fwy., Suite 110, Beaumont, TX

77703–1892, (409) 898–3838, FAX

(409) 892–2119

Region 11 (Austin): 1921 Cedar Bend,

Suite 150, Austin, TX 78758–5336,

(512) 339–2929, FAX (512) 339–3795

Region 12 (Houston): 5425 Polk Ave.,

Suite H, Houston, TX 77023–1486,

(713) 767–3500, FAX (713) 767–3520

Region 13 (San Antonio): 140 Heimer

Rd., Suite 360, San Antonio, TX

78232–5042, (210) 490–3096, FAX

(210) 545–4329

Region 14 (Corpus Christi): 6300 Ocean

Dr., Suite 1200, Corpus Christi, TX

78412–5503, (512) 980–3100, FAX

(512) 980–3101

Region 15 (Harlingen): 134 E. Van

Buren, Suite 301, Harlingen, TX

78550–6807, (956) 425–6010, FAX

(956) 412–5059

Copies of the entire State TPDES

application are available in paper

format. Copies of most documents are

also available in electronic format.

Part or all of the State’s application

(which comprises approximately 4106

pages) may be copied at the TNRCC

office in Austin, or EPA’s office in

Dallas, at a minimal cost per page. A

paper copy of the entire application may

be obtained from the TNRCC office in

Austin for a $510.00 fee. The cost of the

principal documents, i.e the Attorney

General’s Statement, Memorandum of

Agreement, Program Description, water

quality Continuing Planning Process

(Continuing Planning Process +

Implementation Procedures) and the

Enforcement Management System

(Enforcement Guidelines + Compliance

Procedures Manual) all without their

other associated appendices is $152.00.

Copies of the following portions of the

TPDES application are available in both

paper and electronic format:

Chapter 1—Memorandum of Agreement

Between TNRCC and EPA

Chapter 2—Overview of the TNRCC

Chapter 3—Permitting Program

Description

Chapter 4—Pretreatment Program

Description

Chapter 5—Sewage Sludge Program

Description

Chapter 6—Enforcement Program

Description

Chapter 7—Program Cost and Funding

Description

Chapter 8—Attorney General’s

Statement of Legal Authority

Table 1 TPDES Estimated Program

Costs (Existing Employees)

Table 2 TPDES Estimated Program

Costs (New Employees)

Appendix 2–A Facilities Permitted by

the TNRCC Having Oil & Gas Related

Activities

Appendix 3–C TNRCC Continuing

Planning Process

Appendix 3–D Implementation of the

TNRCC Standards Via Permitting

Appendix 3–E TNRCC Playa Policy

Appendix 3–I Standard Permit

Provisions

Appendix 3–J Sewage Sludge Provisions

Appendix 6–A Enforcement Guidelines

Appendix 6–B Water Quality Inspection

Procedures

Appendix 6–C Water Quality

Inspection/Audit Forms

Appendix 6–D Water Quality Inspection

Letters

Appendix 6–G Compliance Procedures

Manual

The following portions of the TPDES

application are only available in paper

format:

Figure 2–1 TNRCC Organization

Figure 2–2 Organization of Office of

Chief Clerk

Figure 2–3 Organization of Legal

Division

Figure 2–4 Organization of Field

Operations Division

Figure 2–5 Organization of

Enforcement Division

Figure 2–6 Organization of Water

Quality Division

Figure 3–1 Wastewater Permitting

Process Flow Chart

Figure 5–1 Sewage Sludge Application

Registration Procedure

Figure 5–2 Sewage Sludge Application

Permitting Procedure

Table 3 Organizational Structure and

Resources for the TPDES Program

Appendix 3–A Industrial and

Municipal Wastewater Permit

Application Forms

Appendix 3–B Miscellaneous Permit

Application Forms

Appendix 3–F Designation of Major

and Minor Discharges

Appendix 3–G Temporary and

Emergency Order Application Forms/

Shell Documents

Appendix 3–H Implementation of the

Basin Permitting Rule

Appendix 3–K CAFO Permit

Application Form

Appendix 5–A Sewage Sludge Permit

and Beneficial Land Use Registration

Applications

Appendix 5–B Sewage Sludge Annual

Reporting Form

Appendix 5–C SSI: Beneficial Land

Use Registrants and Sludge Only

Permittees

Appendix 5–D SSI: POTWs and Other

Treatment Works Treating Sewage

Sludge in Texas

Appendix 6–E Complaints Handling

Appendix 6–F Noncompliance Reports

Appendix 7–A Position Descriptions

for TPDES Functions

Appendix 7–B State Job Classifications

for all TPDES Positions

Texas Rules (30 TAC)

Memorandums of Understanding

Texas Statutes

Copies of the documents available in

electronic format are accessible on the

Internet at the EPA Region 6 web page

http://www.epa.gov/region6/6wq/npdes/

publicnotice.htm and the TNRCC web

page http://www.tnrcc.state.tx.us.

Every effort has been made to include

each document relevant to EPA’s

decision on this matter in the official

record for Docket No. 6WQ–98–1.

However, because the documents

associated with Texas’ request for
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Notices 33657

1Major category partial permit program approval

is provided for under section 402(n)(3) of the CWA.

Pursuant to that section, EPA may approve a partial

permit program covering a major category of

discharges if the program represents a complete

permit program and covers all of the discharges

under the jurisdiction of the agency seeking

approval, and if EPA determines the program

represents a significant and identifiable part of the

State program required by section 402(b) of the Act.

As discussed below under ‘‘Scope of the Partial

Program,’’ TNRCC seeks permitting authority for all

facilities that have discharges within its

jurisdiction. However, TNRCC does not have

jurisdiction over all discharges within the State of

Texas. A small portion of the State’s discharges fall

under the jurisdiction of the Texas Railroad

Commission.

TPDES program approval are

voluminous and have come from many

sources, EPA invites input from the

public on any document that the public

feels should have been included in the

official record, but has not been.

DATES FOR THE PUBLIC COMMENT PERIOD

AND PUBLIC HEARING: The public

comment period on the State’s request

for approval to administer the proposed

TPDES program will be from the date of

publication until August 3, 1998.

Comments must be received or postmarked by no later than midnight on

August 3, 1998.

Both an informal public meeting and

a public hearing will be held in Austin,

Texas on July 27, 1998. The public

meeting will include a presentation on

the TPDES program approval request, a

brief update on the status of the ongoing

Endangered Species Act § 7

consultation, and a question and answer

session. Written, but not oral, comments

for the official record will be accepted

at the public meeting. The public

hearing will be conducted in accordance

with 40 CFR 124.12, and will provide

interested parties with the opportunity

to provide written and/or oral

comments for the official record. The

public meeting will begin at 1:00 pm.

The public hearing will begin at 7:00

pm. Both the public meeting and the

public hearing will be held at the

Holiday Inn-South, 3401 South IH 35,

Austin, Texas 78741 (IH–35 and

Woodward Dr.).

All public comments should reference

Docket No. 6WQ–98–1 and may be in

either paper or electronic format. If

submitting comments in paper format,

please submit the original and three

copies of your comments and enclosures

(including references). To ensure that

EPA can read, understand and therefore

properly respond to comments, the

Agency would prefer that comments be

typed or legibly written and that

commentors cite the paragraph(s) or

sections in the notice or supporting

documents to which each comment

refers. Commentors who want EPA to

acknowledge receipt of their comments

should enclose a self-addressed stamped

envelope.

Send all paper copy comments to: Ms.

Wilma Turner (6WQ–O), Water Quality

Protection Division, EPA Region 6, 1445

Ross Avenue, Dallas, Texas 75202.

Comments may also be submitted

electronically to the following e-mail

address: ‘‘tpdescomment@epa.gov’’.

Electronic comments must be

submitted as an ASCII file or in

WordPerfect 6.0 format, avoiding the

use of special characters and forms of

encryption. Electronic comments should

be identified by the docket number

6WQ–98–1. EPA requests that electronic

comments also include the commentor’s

postal mailing address. No Confidential

Business Information (CBI) should be

submitted through e-mail. Comments

and data will also be accepted on disks

in WordPerfect 6.0 format or ASCII file

format. For those without regular access

to an e-mail system, electronic

comments on this notice may be filed

online at many Federal Depository

Libraries.

A copy of each comment should be

submitted to: Mr. Thomas W. Weber,

Water Quality Division, Texas Natural

Resource Conservation Commission,

P.O. Box 13087, Austin, Texas 78711–

3087.

FOR FURTHER INFORMATION CONTACT: Ms.

Wilma Turner at the EPA address listed

above or by calling (214) 665–7516, FAX

(214) 665–6490, e-mail:

tpdescomment@epa.gov or Mr. Tom

Weber at the TNRCC address listed

above or by calling (512) 239–4576, Fax:

(512) 239–4420).

SUPPLEMENTARY INFORMATION: Section

402 of the CWA created the NPDES

program under which EPA may issue

permits for the point source discharge of

pollutants to waters of the United States

under conditions required by the Act.

Section 402(b) requires EPA to authorize

a State to administer an equivalent state

program, upon the Governor’s request,

provided the State has appropriate legal

authority and a program sufficient to

meet the Act’s requirements.

The regulatory requirements for state

program approval are set forth in 40

CFR part 123. 40 CFR 123.21 lists the

basic elements of an approvable

application. EPA Region 6 considers the

documents submitted by the State of

Texas administratively complete at the

time of this document. EPA will not

make a final decision on TPDES

program approval until after (1)

considering all public comments

provided during the public comment

period or at the public hearing, (2)

completion of the ongoing consultations

with the U.S. Fish and Wildlife Service

and the National Marine Fisheries

Service on effects program approval

may have on endangered or threatened

species and their designated critical

habitat, and (3) completion of ongoing

consultations with the State Historic

Preservation Officer on effects program

approval may have on historic

properties or sites listed or eligible for

listing in the National Register of

Historic Places.

On February 5, 1998, the Governor of

Texas requested NPDES major category

partial permit program approval 1 and

submitted a program description

(including funding, personnel

requirements and organization, and

enforcement procedures), an Attorney

General’s statement, copies of

applicable State statutes and

regulations, and a Memorandum of

Agreement (MOA) to be executed by the

Regional Administrator of EPA Region 6

and the Executive Director of TNRCC.

Supplements to the State application

were received by EPA Region 6 on

February 12, March 16, April 15, and

May 4, 1998. EPA Region 6 determined

that Texas’ February 5, 1998, approval

request, supplemented by this

additional information, constituted a

complete package under 40 CFR 123.21,

and a letter of completeness was sent to

the Chairman of the TNRCC on May 7,

1998.

EPA is required to approve the

submitted program within 90 days of

submission of the complete information

unless it does not meet the requirements

of section 402(b) of the Act and EPA

regulations, or EPA and TNRCC jointly

agree to extend this deadline. (See 40

CFR 123.21(d)). To obtain such

approval, the State must show, among

other things, that it has authority to

issue permits which 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 opportunity for a

hearing on each proposed permit. After

close of the comment period and

completion of the required

consultations with other federal

agencies, the Regional Administrator for

EPA Region 6 will make a decision to

approve or disapprove the TPDES

program for implementation by the

State.

EPA’s final decision to approve or

disapprove the TPDES program will be

based on the requirements of section

402 of the CWA and 40 CFR part 123.

EPA is also required by the Endangered

Species Act (ESA), the National Historic

Preservation Act and the Coastal Zone
33658 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Notices

Management Act, to consult with other

federal agencies before making a final

decision in this matter. For example, the

ESA requires federal agencies to consult

with the U.S. Fish and Wildlife Service

and the National Marine Fisheries

Service on the effects of federal actions

(including NPDES state program

approvals) on endangered species.

Section 7(a)(2) of the ESA places a

statutory requirement (separate and

distinct from CWA § 402(b)) for EPA to

‘‘* * * insure that any action

authorized, funded or carried out * * *

is not likely to jeopardize the continued

existence of any endangered species or

threatened species or result in the

destruction or adverse modification of

habitat * * * determined to be critical

* * * ’’ EPA Region 6 initiated formal

consultation under section 7 of the ESA

on January 29, 1998. EPA’s

responsibilities under ESA, as well as

under the National Historic Preservation

Act and the Coastal Zone Management

Act are discussed in more detail later in

this notice. Under federal law, EPA may

not make a final decision on TPDES

program approval until consultation

under these acts are completed, and it

may be necessary to seek TNRCC’s

agreement on an extension of the 90 day

approval deadline.

If EPA approves the Texas partial

program, the Regional Administrator

will so notify the State and will sign the

proposed MOA. Notice will be

published in the Federal Register and,

as of the date of program approval, EPA

will transfer to the TNRCC NPDES

permitting authority and primary

enforcement responsibility for those

discharges subject to the TPDES

program, with certain exceptions, which

are discussed below under Scope,

Transfer of NPDES Authority, and

Summary of the TPDES Permitting

Program. If EPA’s Regional

Administrator disapproves the TPDES

program, the TNRCC will be notified of

the reasons for disapproval and of any

revisions or modifications to the

program which are necessary to obtain

approval.

Public Hearing Procedures

The following procedures will be

used at the public hearing:

1. The Presiding Officer shall conduct

the hearing in a manner which will

allow all interested persons wishing to

make oral statements an opportunity to

do so; however, the Presiding Officer

may inform attendees of any time limits

during the opening statement of the

hearing.

2. Any person may submit written

statements or documents for the record.

3. The Presiding Officer may, in his

discretion, exclude oral testimony if

such testimony is overly repetitious of

previous testimony or is not relevant to

the decision to approve or require

revision of the submitted State program.

4. The transcript taken at the hearing,

together with copies of all submitted

statements and documents, shall

become a part of the record submitted

to the Regional Administrator.

5. The hearing record shall be left

open until the deadline for receipt of

comments specified at the beginning of

this Notice to allow any person time to

submit additional written statement or

to present views or evidence tending to

rebut testimony presented at the public

hearing.

6. Hearing statements may be oral or

written. Written copies of oral

statements are urged for accuracy of the

record and for use of the Hearing Panel

and other interested persons. Persons

wishing to make oral testimony

supporting their written comments are

encouraged to summarize their points

rather than reading lengthy written

comments verbatim into the record. All

comments received by EPA Region 6 by

the deadline for receipt of comments, or

presented at the public hearing, will be

considered by EPA before taking final

action on the Texas request for NPDES

program approval.

Scope, Transfer of NPDES Authority,

and Summary of the TPDES Permitting

Program

A. Scope of the Partial Program

The proposed TPDES program is a

partial program which conforms to the

requirements of section 402(n)(3) of the

CWA. TNRCC’s application for program

approval applies to all discharges

covered by the authority of that agency.

This includes most discharges of

pollutants subject to the federal NPDES

program (e.g. municipal wastewater and

storm water point source discharges,

pretreatment, most industrial

wastewater and storm water point

source discharges, and point source

discharges from federal facilities),

including the disposal of sewage sludge

(in accordance with section 405 of the

Act and 40 CFR part 503).

The TNRCC has authority to regulate

discharges from industrial facilities

covered by all Standard Industrial

Classification (SIC) codes except for

those facilities classified as 1311, 1321,

1381, 1382, 1389, 4922, and 4925,

which are regulated by the Texas

Railroad Commission. Some activities at

facilities within these SIC codes are

regulated by the TNRCC, and a list of

the ten facilities currently affected is

included in Appendix 2–A of the

TPDES application. EPA will retain

NPDES permitting authority and

primary responsibility for enforcement

over all discharges not under the

jurisdiction of TNRCC and therefore not

subject to the TPDES program,

including those within the jurisdiction

of the Texas Railroad Commission. The

TNRCC has authority to regulate

discharges of storm water associated

with industrial activity and discharges

of storm water from municipal separate

storm sewer systems, except at facilities

regulated by the Texas Railroad

Commission (see above). The TNRCC

has primary responsibility for

implementing a Pretreatment Program

and a Sewage Sludge Program. The

TNRCC has authority to regulate

discharges from publicly owned and

privately owned treatment works and

for discharges from concentrated animal

feeding operations (CAFOs) within the

TNRCC’s jurisdiction.

EPA would retain permitting

authority and primary enforcement

responsibility over discharges from

CAFOs not subject to TNRCC

jurisdiction. Pursuant to state statute,

CAFOs authorized by TNRCC to use,

and that have actually used, a playa lake

that does not feed into any other surface

water in the state as a wastewater

retention facility before July 10, 1991

(the effective date of TNRCC’s adoption

of related revisions to the Texas Surface

Water Quality Standards, 30 TAC

Chapter 307) are not subject to water

quality standards or other requirements

for discharges to waters in the state.

These discharges, however, if to waters

of the United States, are subject to

federal CWA requirements. Because

TNRCC would not have jurisdiction

under the TPDES program to require

compliance with water quality

standards for these discharges, EPA

would retain permitting authority and

primary enforcement responsibility over

discharges into playa lakes that are

waters of the United States by CAFOs

that received authorization to discharge

and commenced operation prior to July

10, 1991, and that are therefore not

subject to TNRCC jurisdiction.

TNRCC does not have, and is not

seeking, the authority to regulate

discharges in Indian Country (as defined

in 18 U.S.C. 1151). EPA will retain

NPDES permitting authority and

primary enforcement responsibility over

Indian Country in Texas.

B. Transfer of NPDES Authority and

Pending Actions

Upon approval of the TPDES program,

authority for all NPDES permitting

activities, as well as primary
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Notices 33659

responsibility for NPDES enforcement

activities, within the scope of TNRCC’s

jurisdiction, would be transferred to the

State, with some exceptions. These

exceptions would be agreed to by EPA

and the State under the MOA that

would be signed upon program

approval, and are explained below. In

addition to the exceptions listed below,

EPA would retain on a permanent basis

its authority under section 402(d) of the

CWA to object to TPDES permits

proposed by TNRCC, and if the

objections are not resolved, to issue

federal NPDES permits for those

discharges. EPA would also retain on a

permanent basis its authority under

sections 402(I) and 309 of the CWA to

file federal enforcement actions in those

instances in which it determines the

State has not taken timely or

appropriate enforcement action.

1. Permits Already Issued by EPA

40 CFR 123.1(d)(1) provides that EPA

retains jurisdiction over any permit that

it has issued unless the State and EPA

have reached agreement in the MOA for

the State to assume responsibility for

that permit. The proposed MOA

between EPA and the TNRCC provides

that the TNRCC would assume at the

time of program approval permitting

authority and primary enforcement

responsibility over all NPDES permits

issued by EPA prior to program

approval, with the following exceptions:

a. Jurisdiction over those discharges

covered by permits already issued by

EPA, but for which variances or

evidentiary hearings have been

requested prior to TPDES program

approval. Jurisdiction over these

discharges, including primary

enforcement responsibility (except as

provided by paragraph 3 below—

Facilities With Outstanding Compliance

Issues), would be transferred to the State

once the variance or evidentiary hearing

request has been resolved and a final

effective permit has been issued.

b. Jurisdiction over all existing

discharges of storm water associated

with industrial or construction activity

(40 CFR 122.26(b)(14)), including

allowable non-storm water, authorized

to discharge as of the date of program

approval under one of the NPDES storm

water general permits issued by EPA

prior to approval of the TPDES program.

The storm water general permits

affected are: Baseline Construction

storm water general permit (57 FR

41209), NPDES permit numbers

TXR10*###; Baseline Non-construction

storm water general permit (57 FR

41297), NPDES permit numbers

TXR00*###; and Multi-sector storm

water general permit (60 FR 51108),

NPDES permit numbers TXR05*###.

(For an individual facility’s permit

number, the * is a letter and the #’s are

numbers—e.g. TXR00Z999). Jurisdiction

over these storm water discharges,

including primary enforcement

responsibility (except as provided by

paragraph 3 below—Facilities With

Outstanding Compliance Issues), would

be transferred to TNRCC at the earlier of

the time the EPA-issued general permit

expires or TNRCC issues a replacement

TPDES permit, whether general or

individual.

Note: EPA Region 6 is in the process of

modifying the Multi-sector storm water

general permit and this action is expected to

be completed prior to the time a final

decision on TPDES program approval is

made. However, because permit modification

does not trigger the transfer of permit

jurisdiction under this section, the Multisector storm water general permit would

remain under EPA’s jurisdiction until it

expires or is replaced by a TNRCC permit

regardless of whether it is modified prior to

program approval.

In addition, EPA Region 6 is in the

process of reissuing the Baseline

Construction storm water general

permit. This action is also expected to

be completed prior to a final decision on

program approval. If the Baseline

Construction storm water general permit

is reissued prior to program approval,

the permit would temporarily remain

under EPA jurisdiction pursuant to this

section. However, even if the permit is

not reissued prior to program approval,

EPA would temporarily retain

jurisdiction over the permit under

paragraph 2 below (Permits Proposed

for Public Comment but Not Yet Final).

The Baseline construction storm water

general permit was proposed for public

comment by EPA on June 2, 1997, and

has not yet been finalized.

c. Jurisdiction over new discharges of

storm water associated with industrial

or construction activity, including

allowable non-storm water, eligible for

coverage under one of the NPDES storm

water general permits issued by EPA

prior to TPDES approval and listed

above. Facilities eligible for but not

currently covered by one of these

general permits would continue to

apply to EPA for coverage. Jurisdiction

over these storm water discharges,

including primary enforcement

responsibility (except as provided by

paragraph 3 below—Facilities With

Outstanding Compliance Issues), would

be transferred to TNRCC at the earlier of

the time the EPA-issued general permit

expires or TNRCC issues a replacement

TPDES permit, whether general or

individual.

Except as provided in paragraphs 2

and 3 below, EPA would not retain,

even on a temporary basis, jurisdiction

over discharges from individual storm

water permits; storm water outfalls in

waste water permits; and storm water

discharges designated by the State in

accordance with 40 CFR 123.26(g)(1)(I).

The State would have jurisdiction and

permitting authority, including primary

enforcement responsibility, over these

discharges immediately upon TPDES

program approval.

d. Jurisdiction over all discharges

covered by large and medium Municipal

Separate Storm Sewer System (MS4)

permits issued by EPA prior to TPDES

program approval. Jurisdiction over

EPA-issued MS4 permits, including

primary enforcement responsibility

(except as provided by paragraph 3

below—Facilities With Outstanding

Compliance Issues), would be

transferred to TNRCC at the earlier of

the time the EPA-issued permit expires

or TNRCC issues a renewed, amended

or replacement TPDES permit.

2. Permits Proposed for Public Comment

but Not Yet Final

EPA would temporarily retain NPDES

permitting authority, as well as primary

enforcement responsibility (except as

provided by paragraph 3 below—

Facilities With Outstanding Compliance

Issues), over all discharges covered by

general or individual NPDES permits

that have been proposed for public

comment by EPA but have not been

issued as final at the time of program

approval. Although section 402(c)(1) of

the Act establishes a 90 day deadline for

EPA approval or disapproval of a

proposed State program and, if the

program is approved, for the transfer of

permit issuing authority over those

discharges subject to the program from

EPA to the State, this provision was

intended to benefit States seeking

NPDES program approval. As a result,

and in the interest of an orderly and

smooth transition from federal to State

regulation, the time frame for transfer of

permitting authority may be extended

by agreement of EPA and the State. See,

for example, 40 CFR 123.21(d), which

allows a State and EPA to extend by

agreement the period of time allotted for

formal EPA review of a proposed State

program. In order to render

programmatic transition more efficient

and less confusing for permit applicants

and the public, the State of Texas and

EPA have agreed to enter into an MOA

that extends the time frame for transfer

of permit issuing authority over those

permits that EPA has already proposed

for public comment, but which are not

yet final at the time of program
33660 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Notices

approval. Permitting authority and

primary enforcement responsibility

would be transferred to the State as the

permits are finalized.

3. Facilities With Outstanding

Compliance Issues

EPA would temporarily retain

primary NPDES enforcement

responsibility for those facilities which

have any outstanding compliance

issues. EPA would retain jurisdiction of

these facilities until resolution of these

issues is accomplished in cooperation

with the State. Files retained by EPA for

the reasons given above would be

transferred to the State as the actions are

finalized. Facilities would be notified of

this retained jurisdiction and again

when the file is transferred to the State.

Permitting authority over these facilities

would transfer to the State at the time

of program approval.

A list of existing Permittees that

would temporarily remain under EPA

permitting jurisdiction/authority is

included as part of the public record

and available for review. Texas would

continue to provide State-only permits

for those dischargers over which EPA

temporarily retains permitting authority,

and which need State authorization to

discharge.

C. Summary of the Application

Documents

The TPDES program is fully described

in documents the State has submitted in

accordance with 40 CFR 123.21, i.e., a

letter from the Governor requesting

program approval; a Memorandum of

Agreement (MOA) for execution by

TNRCC and EPA; a Program

Description, including an Enforcement

Management System, outlining the

procedures, personnel and protocols

that would be relied on to run the

State’s permitting and enforcement

programs; and a Statement signed by the

Attorney General that describes the legal

authority which the State has to

administer a program equivalent to the

federal NPDES program. The State’s

TPDES application consists of a letter

from the Governor of Texas, enclosing

eight chapters and associated

appendices. The content of those

documents is summarized below.

1. A Letter from the Governor

Texas’ application for program

approval includes a letter dated

February 5, 1998, from Governor George

W. Bush, officially requesting NPDES

program approval.

2. The EPA/TNRCC MOA (Chapter 1)

The requirements for MOAs are found

in 40 CFR 123.24. A Memorandum of

Agreement is a document signed by

each agency, committing them to

specific responsibilities relevant to the

administration and enforcement of the

State’s regulatory program. A MOA

specifies these responsibilities and

provides structure for the State’s

program management and EPA’s

program oversight.

The MOA submitted by the State of

Texas has been signed by Dan Pearson,

Executive Director of the Texas Natural

Resource Conservation Commission.

The Regional Administrator of U.S. EPA

Region 6 would sign the document only

if the program has been determined

approvable after all comments received

during the comment period (including

comments received at the public

hearing) have been considered. The

MOA submitted by TNRCC includes the

following items:

Section I—General: This section

contains general statements describing

the purpose of the MOA.

Section II—Scope of Authorization:

This section contains the statement of

the scope of the NPDES program

(pretreatment, storm water, sewage

sludge disposal programs) TNRCC

would be administering.

Section III—State and Federal

Responsibilities: Lists the

responsibilities of TNRCC and EPA in

maintaining an effective program. Also

outlines the procedures for transfer of

authority over discharges over which

EPA would be temporarily retaining

authority and gives timing for the

transition.

Section IV—Permit Processing,

Review and Issuance: describes all

agreements on the review and issuance

of TPDES permits. It covers TNRCC’s

responsibilities to issue permits, the

transfer of EPA files to the State, and the

State’s application review and permit

development process. Included are such

things as procedures for permit

modification or reissuance, and EPA’s

review of TPDES drafted individual and

general permits. This section includes

the State’s commitment for responding

to public concerns and providing public

participation in connection with public

hearings, evidentiary hearings, and

administrative and judicial enforcement

actions.

Section V—Compliance Monitoring

and Permit Enforcement: Describes

summary agreements between EPA and

TNRCC regarding EPA oversight of the

TPDES enforcement program. These

include those commitments on TNRCC’s

compliance monitoring, reviews,

pretreatment audits, and inspections.

Section VI—Pretreatment Program:

Describes summary agreements between

EPA and TNRCC regarding EPA

oversight of TPDES’s implementation of

the industrial pretreatment program

regulating industrial users of municipal

wastewater treatment plants.

Section VII—Sludge Management

Program: Describes summary

agreements between EPA and TNRCC

regarding EPA oversight of TPDES’s

regulation of the disposal of biosolids

(sewage sludge) generated by

wastewater treatment systems.

Section VIII—Transmittal of

Information: This section describes how

reports and requests for information

would be handled; and how information

is transferred between the two agencies.

Section IX—TPDES Program Review

by EPA: Explains how EPA would

periodically review the TPDES program

for implementation and continued

consistency with Clean Water Act

requirements.

Section X—Amendments To Be

Approved by EPA: This section

describes procedures to insure that EPA

is given an opportunity to review any

proposed amendment, recision or repeal

of any State statute or regulation that

could affect the continued viability of

the TPDES program.

Section XI—Approval, Effective Date

And Term Of the MOA: Describes how

the MOA can be modified by EPA and

TNRCC. Also establishes a commitment

to review the MOA within five years

and make any necessary changes. The

MOA would become effective on the

date of program approval.

3. Program Description (Chapters 2–7)

A program description submitted by a

State seeking program approval must

meet the minimum requirements of 40

CFR 123.22. It must provide a narrative

description of the scope, structure,

coverage and processes of the State

program; a description of the

organization, staffing and position

descriptions for the lead State agency;

and itemized costs and funding sources

for the program for the first two years

after program approval. It must describe

all applicable State procedures

(including administrative procedures for

the issuance of permits and

administrative or judicial procedures for

their review) and include copies of

forms used in the program. It must

further contain a complete description

of the State’s compliance and

enforcement tracking program. The

program description submitted by

TNRCC includes the following items:

Chapter 2—Overview of the TNRCC:

This chapter gives an overview of the

history, authority, and organization of

the TNRCC.

Chapter 3—Permitting Program

Description: Describes how TNRCC staff
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Notices 33661

would develop effluent limitations; the

permitting process, including

procedures for public participation in

decision making process; and the

process for determining the Total

Maximum Daily Load a surface water

can assimilate and still support its

designated beneficial uses (e.g.,

swimming, fishing, public water supply,

etc.).

The Continuing Planning Process

(CPP) and its associated Implementation

Procedures (IP) used by the TNRCC to

develop and implement water quality

standards and assess the condition of

surface waters of the State are found in

two appendixes to Chapter 3 (Appendix

3–C: ‘‘TNRCC Continuing Planning

Process’’ and Appendix 3–D:

‘‘Implementation of the TNRCC

Standards Via Permitting’’). Portions of

the CPP and IP previously approved by

EPA when TNRCC was not proposed to

be the NPDES permitting authority

would be superseded by agreements

found in the section IV.B. of the

proposed MOA between TNRCC and

EPA. The issues addressed by these

superseding agreements include:

suspension of the use of biological

surveys in the Implementation

Procedures; determining cessation of

lethality in biomonitoring; use of

alternate test species for biomonitoring;

calculation of Dioxin/Furan permit

limits; development of water qualitybased effluent limitations for discharges

into the Rio Grande; ensuring all final

limitations in a TPDES permit would be

consistent with the EPA-approved

Water Quality Management Plan

(including any applicable Total

Maximum Daily Loads); ensuring

variance from water quality standards

would not be used to establish an

effluent limitation for a TPDES permit

until the standards variance has been

reviewed and approved by EPA; and

ensuring appropriate limitations would

be included in general permits to ensure

compliance with water quality

requirements. Texas has committed to

incorporating the MOA agreements into

the CPP and IP during the next update

to the CPP and IP. Taken together, these

three documents constitute the CPP

required under 40 CFR 130.5(c) for the

Administrator’s approval of a state

program.

Chapter 4—Pretreatment Program

Description: This chapter gives the

authority for the TNRCC pretreatment

program; and the components of the

program such as, the establishment of

limits for indirect users, fundamentally

different factors, categorical

determination requests, reporting

requirements, inspections and

enforcement.

Chapter 5—Sewage Sludge Program

Description: This Chapter gives a brief

description of the TNRCC sewage sludge

program, its history, and statutory

framework. It describes sludge permits

and reports required.

Chapter 6—Enforcement Program

Description: This chapter gives the legal

authority for TNRCC enforcement

actions, outlines TNRCC policies related

to compliance and enforcement and

provides a description of State

enforcement actions. It also gives a brief

overview of compliance review

activities for inspections, Discharge

Monitoring Reports and other required

reports to be submitted by the permittee,

and describes the Permits Compliance

System and the types of data tracked by

it.

States seeking approval of their

permitting and enforcement program

under NPDES have the option of

adopting EPA’s enforcement policies,

procedures, and guidance; or providing

in their program package a complete

description of their own enforcement

authority and compliance evaluation

program (40 CFR 123.26 and 123.27).

Texas submitted its own enforcement

management system (EMS) (Appendices

6–A through 6–G). An EMS outlines the

way the State systematically and

efficiently identifies instances of

noncompliance and provides timely and

appropriate enforcement actions to

achieve the final objective of full

compliance by the permittee with the

Clean Water Act. An EPA memo dated

October 2, 1989, titled ‘‘Final Version of

the Revised Enforcement Management

System,’’ describes seven basic

principles that are common to an

effective EMS:

—Maintain a source inventory that is

complete and accurate;

—Handle and assess the flow of

information available in a systematic

and timely basis;

—Accomplish a pre-enforcement

screening by reviewing the flow of

information as soon as possible after

it is received;

—Perform a more formal enforcement

evaluation where appropriate, using

systematic evaluation screening

criteria;

—Institute a formal enforcement action

and follow-up whenever necessary;

—Initiate field investigations based on a

systematic plan; and

—Use internal management controls to

provide adequate enforcement

information to all levels of

organization.

The TNRCC’s Enforcement

Management System (EMS) is a written

outline or guide which discusses the

procedures that would be followed to

ensure that both federal and State

regulatory requirements and goals are

accomplished in a timely and

appropriate manner. For the purpose of

review, EPA considers the TNRCC EMS

to consist of the seven appendices to

Chapter 6.

The inspection and enforcement

functions of the TNRCC reside in the

Field Operations Division, Compliance

Support Division, and Enforcement

Division of the Office of Compliance &

Enforcement. The Field Operations

Division, with 16 regional offices across

the State, is responsible for inspecting

all permitted and unpermitted facilities

which have or are believed to have a

surface water discharge and is primarily

responsible for the investigation and

resolution of all citizen complaints

involving waters of the State. The

Compliance Support Division provides

agency sponsored or administered

training courses and technical

assistance aimed at development of

environmental expertise by agency staff

and those regulated by the TNRCC. The

Enforcement Division, in coordination

with the Field Operations Division, is

responsible for addressing noncompliance with the agency’s

regulations through enforcement

actions.

The TNRCC has not adopted EPA’s

civil penalty policy, but uses their own

policy to assess and collect

administrative penalties. The penalty

policy is discussed in detail in

Appendix VI.

Chapter 7—Program Cost and

Funding: This chapter gives a budget

summary on the projected costs and

funding sources for the TPDES program

for the first two years after program

approval.

4. Attorney General’s Statement

(Chapter 8)

An Attorney General’s Statement is

required and described in regulations

found at 40 CFR 123.23. The State

Attorney General must certify that the

State has lawfully adopted statutes and

regulations which provide the State

agency with the legal authority to

administer a permitting program in

compliance with 40 CFR part 123. The

Texas Attorney General’s Statement

describes and cites State legal authority

it believes adequate to administer the

TPDES program; and certifies that the

State has the legal authority to

administer the TPDES program in

accordance with the regulations in 40

CFR part 123. Chapter 8 entitled

‘‘Authority for the Texas National

Pollutant Discharge Elimination System

Program,’’ which was submitted by the
33662 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Notices

2Also included in the record and of interest on

this issue is an exchange of letters between Mr.

Richard Lowerre of Henry, Lowerre, Johnson, Hess,

& Frederick and the TNRCC dated November 19,

1997 (Lowerre to TNRCC Chairman Barry McBee)

and January 6, 1998 (Jim Phillips, Deputy Director

of the Office of Legal Services, TNRCC to Lowerre).

State of Texas on February 5, 1998, and

the supplemental March 16, 1998, letter

from Texas Attorney General Dan

Morales to Acting EPA Region 6

Regional Administrator Jerry Clifford,

taken together, constitute the Attorney

General’s Statement required by section

402(b) of the CWA and 40 CFR 123.23

for purposes of the State’s TPDES

application. All references to the

‘‘Attorney General’s Statement’’ or

‘‘statement of legal authority’’ made in

this document refer to the combination

of these two documents.

Public Comment on the Described

Program

The program submitted by the State of

Texas has been determined by EPA to be

complete in accordance with the

regulations found at 40 CFR part 123.

EPA and TNRCC want the citizens of

Texas to understand the proposed

TPDES program and encourage public

participation in the decision making

process. Therefore, EPA requests that

the public review the program that

TNRCC has submitted and provide any

comments they feel are appropriate.

EPA will consider all comments on the

TPDES program and/or its approval in

its decision.

EPA is specifically seeking public

input on the following aspects of the

proposed TPDES program:

Public Participation

In discussions with the State of Texas

over the last couple of years concerning

the possibility of federal approval of a

Texas NPDES program, EPA expressed

various concerns regarding the

opportunity for public participation in

the State permitting and enforcement

processes. For example, EPA raised

concerns that notice and opportunity for

comment should be provided on

proposed settlements of administrative

enforcement actions; that Texas notices

should notify the public that it may

request a hearing on permit applications

and that a hearing would be granted if

there was a significant degree of public

interest; that Texas should provide for

permissive intervention in

administrative penalty actions; and over

restrictions placed by the State on the

participation of citizens in formal

evidentiary contested case hearings and

the implications of those restrictions on

the ability of citizens to establish

standing to obtain judicial review of

permits. In response to these

discussions, the State of Texas has

implemented various regulatory and

statutory changes to enhance the

opportunity for public participation

under the State program, and the Texas

Attorney General has stated that the law

governing individual standing in Texas

judicial proceedings is substantially

equivalent to current requirements for

standing under federal law. Through

these statutory and regulatory changes

and the Texas Attorney General’s

statement, Texas has worked to address

EPA’s concerns in this area. The results

of the various discussions between EPA

and TNRCC regarding public

participation issues are reflected in an

exchange of letters between TNRCC

Commissioner Barry McBee and Acting

Region 6 Regional Administrator Jerry

Clifford dated June 16, 1997 (McBee to

Clifford), June 19, 1997 (Jerry Clifford to

Barry McBee) and November 25, 1997

(Barry McBee to Jerry Clifford). These

three letters are included as part of the

official record for this matter.2

Texas’ Regulatory Flexibility Under

Texas Water Code 5.123

The Texas Legislature added section

5.123 to the Texas Water Code in 1997

(implementing Senate Bill 1591). This

section gives the TNRCC flexibility to

exempt from State statutory or

regulatory requirements an applicant

proposing an alternative method or

alternative standard to control or abate

pollution. EPA raised questions

concerning the effect of the statute on

TNRCC’s obligations under the TPDES

program. In response, the Texas

Attorney General stated that Texas

Water Code 5.123 does not subtract from

the TNRCC’s authority required as a

condition of program approval under

the CWA or EPA regulations since the

statute does not authorize the TNRCC to

grant an exemption that is inconsistent

with the environmental requirements of

any federally approved program. In a

letter from TNRCC Commissioner Ralph

Marquez to Acting Region 6 Regional

Administrator Jerry Clifford dated

March 16, 1998, Commissioner Marquez

clarified TNRCC’s position that section

5.123 does not authorize TNRCC to

grant permits that vary from applicable

federal requirements. To further clarify

this position, Commissioner Marquez

committed to include the following

language in the proposed MOA between

EPA and the TNRCC:

The regulatory flexibility authority in

Senate Bill 1591 will not be used by TNRCC

to approve an application to vary a federal

requirement or a State requirement which

implements a federal program requirement

under § 402(b) of the Clean Water Act, EPA

regulations implementing that Section, or

this MOA, including but not limited to

inspection, monitoring or information

collection requirements that are required

under § 402(b) of the Clean Water Act, EPA

regulations implementing that Section or this

MOA to carry out implementation of the

approved federal program.

This language is included on page 8 of

the proposed MOA.

Texas’ Defense to Liability for Acts of

God, War, Strike, Riot, or Other

Catastrophe

Section 7.251 of the Texas Water Code

provides that if an event that would

otherwise be a violation of a statute,

rule, order or permit was caused solely

by an act of God, war, strike, riot, or

other catastrophe, the event is not a

violation of that statute, rule, order, or

permit. This statute and its effect on the

TPDES program are discussed in detail

in the Attorney General’s Statement

provided by the State of Texas as part

of its application. However, EPA wishes

to also clarify its understanding of this

statute and its role in the federally

authorized program.

It is important to first note that

section 7.251 of the Texas Water Code

creates a defense to liability not

provided for under the federal CWA.

Should EPA authorize the TPDES

program, EPA would still retain its

authority to bring enforcement actions

for violations of the Act, and this

authority would not be affected by

section 7.251. Both EPA and the courts

have consistently interpreted the CWA

as a strict liability statute. The only

defense to liability recognized under

federal law is the federal upset defense

found at 40 CFR 122.41(n), which is a

very narrow affirmative defense for

violations of technology-based effluent

limitations. Although both Texas Water

Code section 7.251 and 40 CFR

122.41(n) provide for affirmative

defenses that must be pled and proven

by the asserting party, the defenses are

not analogous.

The Attorney General’s Statement

provided by the State of Texas

acknowledges that the defenses are not

analogous. However, in his effort to

clarify the scope of the State statute, the

Attorney General compares section

7.251 to ‘‘a federal defense that CWA

§ 301(a) only applies to any person

causing an unauthorized discharge.’’ It

is EPA’s belief that no such federal

defense exists. EPA has consistently

taken the position, which it believes is

supported by available case law, that

any unauthorized discharge of

pollutants is unlawful regardless of the

cause, and that a facility owner or

operator is responsible for any unlawful
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Notices 33663

discharge occurring at his facility.

Therefore, although Texas Water Code

section 7.251 creates an affirmative

defense to liability for actions brought

by Texas under State law, section 7.251

is not a defense to enforcement actions

brought by EPA pursuant to the federal

CWA.

As interpreted by the Texas Attorney

General, section 7.251 provides an

affirmative defense to unauthorized

discharges under State law only if the

event causing the discharge is

completely outside the control of the

person otherwise responsible for the

discharge and only if the discharge

could not have been avoided by the

exercise of due care, foresight, or proper

planning, maintenance or operation.

Section 7.251 does not shield a party

from liability if that party’s action or

inaction contributed to the violation.

Based on this interpretation, it is EPA’s

understanding that if a facility owner or

operator could have reasonably

anticipated a discharge, and could have

taken steps to prevent it by care and

foresight, proper planning, or

maintenance, then the affirmative

defense is unavailable. For example, if

a heavy rainfall, a strike, or a riot is

reasonably foreseeable, or the facility is

not designed, operated, or maintained

properly, then any discharge resulting

from such an event would not be solely

caused by the event, and the facility

owner or operator would be unable to

claim the defense for such a discharge.

The Attorney General also states that

section 7.251 would not preclude the

imposition of penalties for a violation

that persists after the original force

majeure event ceases to be the sole

cause of a discharge, whether the

persisting violation was a continuing

discharge or a failure to comply with a

rule, order, or permit requirements. EPA

understands this to mean that even if a

discharge at a facility were initially

caused by an act of God, and the facility

owner or operator in no way contributed

to the discharge, either through his

action or inaction, if the facility owner

or operator could have taken steps to

stop the discharge from continuing, but

failed to do so, the facility operator

would be liable for the continuing

discharge.

As discussed in the Attorney

General’s Statement, the main impact of

section 7.251 is to insulate a party from

penalties; the statute’s effect on the

TNRCC’s injunctive authority is

minimal in that it does not affect a

court’s authority to issue an injunction

to enforce any Code requirement or

prohibition, including the requirement

that a party comply with any permit,

rule or order issued by the TNRCC. EPA

understands the Texas Attorney

General’s statement to conclude that the

TNRCC can enjoin by suit in State court

any violation or threat of violation of a

statute, rule or permit under the TPDES

program. Based on this understanding,

TNRCC appears to have injunctive

authority equivalent to EPA’s authority

under federal law despite the existence

of section 7.251.

In regard to the insulation of parties

from penalties under section 7.251, EPA

would rarely seek penalties for

violations of the Act that were

completely beyond the control of a

party, and in regard to which that party

had exercised due care, foresight, proper

planning and maintenance.

Therefore, based on the Texas

Attorney General’s Statement and EPA’s

understanding of TNRCC’s broad

injunctive authority, the statute does not

appear to prevent TNRCC from

demonstrating adequate authority to

meet its obligations under section 402(b)

of the CWA.

Inspections

The federal regulations (40 CFR

123.26(e)(5)) require State NPDES

compliance evaluation programs to have

the procedures and ability for inspecting

the facilities of all major dischargers and

all Class I sludge facilities where

applicable at least annually. In the

proposed MOA between EPA and the

TNRCC, the TNRCC states that it has the

procedures and ability for inspecting the

facilities of all major dischargers and all

Class I sludge facilities where applicable

at least annually, and that it will inspect

100% of the majors and Class I sludge

facilities on an annual basis, or a

universe of majors/minors agreed upon

annually by EPA and the TNRCC. The

agreement to allow TNRCC to substitute

the inspection of a mutually agreedupon universe of majors/minors for

inspection of 100% of the majors and

Class I sludge facilities is based on

EPA’s and TNRCC’s commitment to a

process for targeting inspections

according to the priorities established

by TNRCC to protect the waters of

Texas. Under the terms of the proposed

MOA, the TNRCC will develop an

annual inspection plan that establishes

priorities, lists the major and minor

dischargers to be inspected, and

demonstrates that the plan is

substantially equivalent to the annual

inspection of all major dischargers and

Class I sludge management facilities

where applicable. The TNRCC will have

to inspect majors at some regular

interval while expending resources on

minors equivalent to 100% of the majors

annually. The TNRCC will also have to

demonstrate water quality improvement

as a result of the trade-off. Under the

proposed MOA, if EPA and the TNRCC

are unable to reach agreement on the

universe of majors/minors to be

inspected under the annual inspection

plan by the beginning of the following

fiscal year, TNRCC agrees to inspect

100% of the majors and all Class I

sludge management facilities where

applicable.

Timely and Appropriate Enforcement

Section 402(b) of the Act requires that

a State have adequate authority to abate

violations of the permit or the permit

program. Because the ability to take

timely and appropriate enforcement

action is fundamental to an adequate

enforcement program, EPA’s Oversight

Guidance states that by the time a

facility appears on the second Quarterly

Noncompliance Report, a formal

enforcement action should have been

taken. Chapter 6 of Texas’ application

(Enforcement Program Description)

outlines the time frames for TNRCC

issuance of enforcement actions. The

average time for TNRCC enforcement

action issuance is 255 days. As a result,

in implementing the TPDES program,

TNRCC would not in all cases be able

to meet the timely and appropriate

criteria contained in EPA’s Oversight

Guidance. In cases where TNRCC

cannot meet this criteria, TNRCC has

agreed in the proposed MOA to notify

EPA 45 days prior to a facility appearing

on the Exception List. EPA will then

initiate formal enforcement action in

order to ensure that the violations are

addressed in a timely and appropriate

manner.

Penalty Policy

The TNRCC proposes to use its own

Penalty Policy in administering the

TPDES program, and the TNRCC policy

differs in some respects from the EPA

penalty policy. It is EPA policy that

penalties generally should, at a

minimum, collect the economic benefit

accruing to the violator as a result of

violating the law. EPA’s policy also

states that every effort should be made

to calculate and recover an additional

amount, over and above economic

benefit, to ensure that the violator does

not gain economically by violating the

law. (EPA’s February 1984 ‘‘Policy on

Civil Penalties’’ (#GM–21) as

implemented in EPA’s March 1, 1995

‘‘Interim CWA Settlement Penalty

Policy’’). TNRCC’s policy will not

ensure that economic benefit will be

collected, at a minimum, in all cases,

and TNRCC’s policy allows for

mitigation of penalties to zero in some

instances. Neither the CWA nor 40 CFR

part 123 require a State seeking NPDES
33664 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Notices

3Under Texas’ proposed funding plan, the

TNRCC will charge fees for storm water permittees.

As a result, many industrial facilities, construction

authority to adopt EPA’s penalty policy

verbatim. However, 402(b) of the Act

and 40 CFR 123.27 require that States

have enforcement authority, including

civil and criminal penalties, adequate to

abate violations of a permit or the

permit program. If the TPDES program

were approved, EPA would be required

to over-file in certain instances in order

to ensure consistency with the Federal

penalty policy that no party be allowed

to garner an unfair economic advantage

through avoiding the cost of compliance

with environmental protection

requirements. Any penalties collected

by EPA go to the federal, not the State,

treasury.

Applicability of Water-Quality Based

Limits in the Absence of TechnologyBased Effluent Guidelines

In a brief filed February 12, 1998, in

the U.S. Court of Appeals for the Fifth

Circuit on behalf of the State of Texas

and the Texas Railroad Commission in

Texas Mid-Continental Oil & Gas

Association v. EPA (No. 97–60042 and

Consolidated Cases), the Texas Attorney

General took the position that EPA did

not have the authority to include water

quality-based effluent limitations in an

NPDES permit unless technology-based

effluent guidelines had been developed.

EPA vigorously disagrees with this

position and continues to maintain that

under the CWA, technology-based and

water quality-based effluent limitations

are independently applicable in

determining appropriate effluent

limitations for an NPDES permit.

While confident that the Texas

Attorney General’s position on EPA’s

authority to independently require

compliance with water quality

standards will not be upheld by the

courts, EPA also believes it is not

necessary to wait for a final ruling by

the courts before acting on the TPDES

program proposed by TNRCC. The

Texas Attorney General’s statement

confirms that TNRCC has full authority

under state law to impose effluent

limitations for any discharge as

necessary to insure compliance with

approved water quality standards. In

addition, in a March 16, 1998, letter to

EPA Region 6 Acting Regional

Administrator Jerry Clifford from

TNRCC Commissioner Ralph Marquez,

Commissioner Marquez committed to

add additional language to the MOA to

clarify that in implementing the TPDES

program, TNRCC would use water

quality-based effluent limits in permits

wherever necessary to insure

compliance with water quality

standards. As a result of Commissioner

Marquez’ commitment, the following

language is now included on page 24 of

the proposed MOA:

Water quality based effluent limitations

will be included in TPDES permits for all

discharges to ensure compliance with

approved water quality standards. Water

quality based effluent limitations are part of

the federally approved program and the State

will impose such limitations in TPDES

permits unless technology-based effluent

limitations are more stringent.

Therefore, the proposed TPDES program

would appear to function in a manner

consistent with EPA’s interpretation of

the requirements of the CWA and its

implementing regulations.

TPDES Resource Needs

The CWA and EPA regulations

require States seeking approval of State

NPDES programs to demonstrate

adequate resources, including qualified

personnel and sufficient funding, to

operate the proposed program if

approved. Section 304(I)(2) of the CWA

requires EPA to promulgate guidelines

establishing the minimum procedural

and other elements of State programs,

including among other things, funding,

personnel qualifications, and manpower

requirements. 40 CFR 123.22 requires a

state seeking NPDES approval to

provide as part of its program

submission a description of the staff

who will carry out the proposed State

program and an itemization of the

estimated costs of establishing and

administering the proposed program for

the first two years after approval. As

required by 40 CFR 123.22, the State

included a description of the cost of

establishing and administering the

proposed TPDES program for the first

two years after program approval in

Chapter 7 of its application. However,

information provided to EPA by two

public interest groups, the Texas Center

for Policy Studies (letter to Samuel

Coleman and Steven A. Herman dated

May 7, 1998) and People Organized in

Defense of Earth and her Resources

(letter to Carol Browner and Jerry

Clifford dated April 29, 1998), has

raised questions concerning whether the

available information indicates that the

State, if authorized, will have sufficient

funding to adequately implement the

program. The answers to these questions

will be important to EPA’s final

decision on TPDES program approval.

To that end, EPA intends to seek

clarification from the TNRCC regarding

certain aspects of the information

provided. Any additional comments by

the public will also be considered by the

Regional Administrator in making his

final decision.

It is also important to note that under

the proposed TPDES program, authority

over storm water general permits

(approximately 20,000 permittees) and

municipal separate storm sewer permits

(approximately 30 permits) already

issued by EPA would not be transferred

to TNRCC until the federal permits

expire or are replaced by a TPDES

permit. Therefore, permitting authority

and primary enforcement responsibility

over a significant portion of the NPDES

universe would not transfer to TNRCC

until after the period covered by the

financial capability information

included in the program approval

request. In addition, the State would be

required to begin administering Phase II

of the NPDES storm water program

(expected to require permitting of

numerous smaller municipalities and

construction sites) starting around 2001.

As a result of these anticipated increases

in TNRCC responsibility in the years

following program approval, resources

needed to run the program would also

increase. If the TPDES program were

approved, TNRCC would be expected to

increase its resources commensurate

with program growth, and if it were

unable to do so, the program would be

subject to withdrawal by EPA under 40

CFR 123.64(b).

Funding Sources Available for the

TPDES Program

Under 40 CFR 123.22(b)(3), the

program description must include an

itemization of the sources and amounts

of funding, including Federal grant

money, expected to be available to

TNRCC for the first two years after

approval to meet the costs of

establishing and administering the

proposed TPDES program. However,

since EPA cannot guarantee the level of

Federal funding Congress will make

available in future years, a State seeking

program approval must be able to run its

program with or without the assistance

of Federal funding.

Chapter 7 of the TPDES application

contains both the expected program

costs and the required breakdown on

funding sources. The funding sources

TNRCC would rely on for the first two

years of the proposed TPDES program

includes federal grants totaling

$7,224,305 per year. Approximately

49% of the proposed TPDES budget

would therefore be dependent on the

continued availability of Federal grants.

The Texas Legislature has already

authorized TNRCC to increase the

maximum annual permit fee to $25,000

and to collect additional fees to recover

the costs of an authorized program.3 If
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 / Notices 33665

development projects and municipal separate storm

sewer systems not currently regulated by the

TNRCC will become subject to the TPDES fee

system as storm water permitting authority transfers

from EPA to the TNRCC.

current levels of available Federal grant

funds decline, TNRCC would need to

further increase fee revenue or seek

additional funds from the Texas

Legislature to fund the TPDES program.

Environmental Justice

EPA encourages States to include

environmental justice provisions in

their environmental programs in

furtherance of environmental justice

policies, and to help ensure compliance

with non-discrimination provisions of

Title 6 of the Civil Rights Act. EPA

wrote to TNRCC in December of 1997,

recommending that the State include an

environmental justice program as part of

its proposed TPDES program. Under the

current regulations for State program

approval, Texas is not required to

submit a description of program

procedures to ensure environmental

justice issues are taken into

consideration in TNRCC’s permitting

and enforcement decisions. In a letter

dated February 6, 1998, TNRCC

indicated it does have an environmental

justice program. However, the State did

not make that program a part of the

TPDES application.

Other Federal Statutes

A. National Historic Preservation Act

Section 106 of the National Historic

Preservation Act requires that all federal

agencies must consult with the State

Historic Preservation Officer and the

Advisory Council on Historic

Preservation on all federal undertakings

which may affect historic properties or

sites listed or eligible for listing in the

National Register of Historic Places.

Regulations outlining the requirements

of a section 106 consultation on a

federal undertaking are found at 36 CFR

part 800. EPA has initiated section 106

consultation on the State’s request for

approval of the TPDES program.

B. Endangered Species Act

Section 7 of the Endangered Species

Act (ESA) requires that all federal

agencies consult on federal actions

which may affect federally listed species

to insure they are unlikely to jeopardize

the continued existence of those species

or adversely modify their critical

habitat. Regulations controlling

consultation under ESA section 7 are

codified at 50 CFR part 402. The

approval of the State permitting

program under section 402 of the Clean

Water Act is a federal action subject to

this requirement, but the State’s

subsequent TPDES permit actions are

not. EPA Region 6 initiated formal

consultation with the U.S. Fish and

Wildlife Service on January 29, 1998.

C. Coastal Zone Management Act

Pursuant to section 307(c)(1)(C) of the

Coastal Zone Management Act, Federal

agencies carrying out an activity which

affects any land or water use or natural

resource within the Coastal Zone of a

state with an approved Coastal Zone

Management Plan must determine

whether that activity is, to the

maximum extent practicable, consistent

with the enforceable requirements of the

Plan and provide its determination to

the State agency responsible for

implementation of the Plan for review.

Texas’ approved Coastal Zone

Management Plan is administered by

the General Land Office and, more

particularly, by its Coastal Coordination

Council. TNRCC permit actions are

themselves subject to consistency

review under 31 TAC § 505(11)(a)(6);

thus approval of TNRCC’s TPDES

program would not affect Texas’ coastal

zone and would be consistent with the

enforceable requirements of Texas’

Coastal Zone Management Plan.

D. Regulatory Flexibility Act

Based on General Counsel Opinion

78–7 (April 18, 1978), EPA has long

considered a determination to approve

or deny a State NPDES program

submission to constitute an adjudication

because an ‘‘approval’’, within the

meaning of the APA, constitutes a

‘‘license,’’ which, in turn, is the product

of an ‘‘adjudication’’. For this reason,

the statutes and Executive Orders that

apply to rulemaking action are not

applicable here. Among these are

provisions of the Regulatory Flexibility

Act (RFA), 5 U.S.C. 601 et seq. Under

the RFA, whenever a Federal agency

proposes or promulgates a rule under

section 553 of the Administrative

Procedure Act (APA), after being

required by that section or any other law

to publish a general notice of proposed

rulemaking, the Agency must prepare a

regulatory flexibility analysis for the

rule, unless the Agency certifies that the

rule will not have a significant

economic impact on a substantial

number of small entities. If the Agency

does not certify the rule, the regulatory

flexibility analysis must describe and

assess the impact of a rule on small

entities affected by the rule.

Even if the NPDES program approval

were a rule subject to the RFA, the

Agency would certify that approval of

the State’s proposed TPDES program

would not have a significant economic

impact on a substantial number of small

entities. EPA’s action to approve an

NPDES program merely recognizes that

the necessary elements of an NPDES

program have already been enacted as a

matter of State law; it would, therefore,

impose no additional obligations upon

those subject to the State’s program.

Accordingly, the Regional

Administrator would certify that this

program, even if a rule, would not have

a significant economic impact on a

substantial number of small entities.

I hereby provide public notice of the

application by the State of Texas for

approval to administer, in accordance

with 40 CFR part 123, the TPDES

program.

Dated: June 11, 1998.

Gregg A. Cooke,

Regional Administrator.

[FR Doc. 98–16249 Filed 6–18–98; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL EMERGENCY

MANAGEMENT AGENCY

[FEMA–1218–DR]

South Dakota; Major Disaster and

Related Determinations

AGENCY: Federal Emergency

Management Agency (FEMA).

ACTION: Notice.

SUMMARY: This is a notice of the

Presidential declaration of a major

disaster for the State of South Dakota

(FEMA–1218–DR), dated June 1, 1998,

and related determinations.

EFFECTIVE DATE: June 1, 1998.

FOR FURTHER INFORMATION CONTACT:

Madge Dale, Response and Recovery

Directorate, Federal Emergency

Management Agency, Washington, DC

20472, (202) 646–3260.

SUPPLEMENTARY INFORMATION: Notice is

hereby given that, in a letter dated June

1, 1998, the President declared a major

disaster under the authority of the

Robert T. Stafford Disaster Relief and

Emergency Assistance Act (42 U.S.C.

5121 et seq.), as follows:

I have determined that the damage in

certain areas of the State of South Dakota,

resulting from flooding, severe storms, and

tornadoes on April 25, 1998, and continuing,

is of sufficient severity and magnitude to

warrant a major disaster declaration under

the Robert T. Stafford Disaster Relief and

Emergency Assistance Act, Pub. L. 93–288, as

amended (‘‘the Stafford Act’’). I, therefore,

declare that such a major disaster exists in

the State of South Dakota.

In order to provide Federal assistance, you

are hereby authorized to allocate from funds

available for these purposes, such amounts as