The Nickel Report

On January 15, 2021, the Texas Commission on Environmental Quality (“TCEQ”) received approval to implement the National Pollutant Discharge Elimination System (“NPDES”) program for oil and gas discharges. [1]  Generally, as a result of this approval, applicants for NPDES permits for produced water, hydrostatic test water, and gas plant effluent will only require a single TCEQ authorization rather than authorizations from both the Railroad Commission of Texas (“RRC”) and the U.S. Environmental Protection Agency (EPA) as previously had been required. [2]

EPA received wide-ranging public comments regarding TCEQ’s request for NPDES program authorization for these discharges. [3]  A number of commenters requested an extension of the public comment period to allow EPA additional time to consider public comment. [4]  Noting that the comments did not raise substantial new issues related to the application for partial NPDES program authorization, EPA concluded that it had sufficient time to consider the public comment and make a final determination without an extension.  Opponents to program authorization raised concerns regarding the lack of current understanding relating to the composition of produced water and the need for updated effluent limitation guidelines for produced water discharges.  In response, EPA noted that the scope of EPA’s action was limited to determining whether the application met the minimum requirements for approval under Section 402(b) of the Clean Water Act and that the adequacy of existing effluent limitation guidelines and water quality standards was outside the scope of the application for NPDES program authorization. [5] Supporters of program authorization noted that no changes to existing effluent limitation guidelines or water quality standards were being made as part of program approval and requested prompt EPA action further noting that TCEQ has administered the NPDES non-oil and gas wastewater discharge since 1998 and is well-positioned to assume NPDES program authorization for oil and gas wastewater discharges.

Details for implementation of the newly approved NPDES program are set forth in an Addendum to a Memorandum of Agreement previously entered into by TCEQ and EPA Region 6 as part of TCEQ’s NPDES program authorization for non-oil and gas wastewater discharges

in 1998 (“MOA Addendum”). [6]  TCEQ has now taken steps to implement the new approved program.  On January 20, 2021, TCEQ announced that it is ready to review and process permit applications from oil and gas facilities that will treat and discharge wastewater effluent as required by federal and state regulations. [7]  Additional information regarding TCEQ’s implementation of the new approved program including permitting guidance has also now been posted on TCEQ’s website. [8]

[1] See Letter from Ken McQueen, Regional Administrator, EPA Region 6 to Governor Greg Abbott (January 15, 2021) available here.

[2] For further background, see TCEQ’s Request for NPDES Program Authorization for Oil and Gas Discharges Under Review available here.

[3] See EPA’s Response to Comments available here.

[4] As noted in EPA’s Response to Comments, both the 2019 legislation directing TCEQ to seek authorization for the oil and gas wastewater discharge program and the proposed program itself were the subject of an extensive stakeholder process at the state level.  In addition, TCEQ and EPA worked closely together before and after the program application was filed with EPA.  However, EPA and the State of Texas did separately agree to extend the statutory deadline for approval or disapproval of its request for NPDES authorization from January 11, 2021, to January 19, 2021.

[5] EPA separately considered the relevant effluent limitation guidelines for oil and gas wastewater as part of its review of oil and gas wastewater management practices under the Clean Water Act, but concluded its review without taking action with respect to these guidelines.  See Summary of Input on Oil and Gas Wastewater Management Practices under the Clean Water Act available here.

[6] See MOA Addendum available here, which provides, among other things, that EPA will initially retain jurisdiction for NPDES permits for oil and gas wastewater discharges for which appeals are pending or enforcement actions are ongoing.

[7] See TCEQ announcement available here.

[8] See TCEQ website here.