On September 14, 1998, the Environmental Protection Agency (EPA) approved TNRCC's application to assume administration of the National Pollutant Discharge Elimination System (NPDES). NPDES is the wastewater discharge permitting program required by the federal Clean Water Act. Congress intended the NPDES program to be assumed by the states, and over 40 state programs have been approved by EPA since NPDES was created in 1972. Until now, however, NPDES had been administered in Texas by EPA. Texas has had its own wastewater permitting program under the Texas Water Code since even before NPDES was enacted, and the state has long sought this authorization in order to combine the two programs and end the cumbersome double permitting requirement that has existed for many years as a result of the existence of two basically parallel permit systems. As authorized, the TNRCC's combined program will be known as the Texas Pollutant Discharge Elimination System (TPDES).
Under TPDES, Texas will administer its own permit program, under state law, for discharges into navigable waters of the United States. After a period of transition, municipal and industrial dischargers who have historically been required to have permits from both the TNRCC and EPA will have only one combined permit. This will mean only one set of permit conditions, one inspection and enforcement authority and one permit application and approval process. EPA approved the state program because it complies with all federal requirements for NPDES, and in order to keep this approval, the state must keep its program current by following the legally required federal standards and adopting those that Congress or EPA promulgate in the future. EPA will oversee TNRCC administration of the program and can initiate its own enforcement action or take over the issuance of a pending permit if it finds that TNRCC is not fulfilling federal legal requirements in a particular case.
TPDES became effective immediately for most Texas wastewater dischargers, but some aspects of the program and some permits will actually transfer from EPA at later dates.
- Program elements and permits immediately assumed by TNRCC:
- all EPA-issued NPDES permits issued to individual facilities for industrial and municipal wastewater discharges, with the exception of those for discharges under the jurisdiction of the Railroad Commission of Texas, those pending applications for which EPA has already issued a draft permit and EPA's individual stormwater permits issued to large and medium sized municipalities with separate stormwater sewer systems (MS4s).
- oversight of municipal pretreatment programs operated by publicly owned treatment works.
- all CAFOs and Petroleum Bulk Storage facilities with currently active Notices of Intent (NOIs) under the expired EPA CAFO and PBST general permits.
- all sewage sludge use, disposal and processing permits.
- Permit programs that EPA will continue to administer for some period and that will be implemented later by TNRCC:
- EPA's general construction and multi sector industrial stormwater permits, which will be assumed when reissued by TNRCC before or when they expire, in the years 2003 and 2000, respectively.
- CAFOs and Petroleum Bulk Storage facilities that have pending, but unapproved, NOIs on file with EPA under expired general permits.
- Individual cities' Municipal MS4 permits discussed above. TNRCC will assume and renew these as they expire; the first ones will expire in September, 2000.
Other features of the TPDES program that begin with program assumption include:
- A notice and comment system of public participation in permitting actions, separate from the contested case hearing process, under which all citizens have the opportunity to comment on any draft permit and to appeal to a state district court if they are dissatisfied with the TNRCC's decision.
- Revised procedures under which administrative law judges may permit affected members of the public to intervene in contested enforcement hearings.
There will be both immediate and long term challenges in implementation of TPDES, including:
- Processing the current backlog of some 2000+ permit and amendment applications pending at EPA.
- Drafting new TPDES permits for applications TNRCC received before authorization.
- Assuming the stormwater permitting program, beginning in 2000, including processing permit or other authorization applications for over 3000 facilities authorized by the federal general stormwater permit and some 4300 authorized by the multi sector general permit, and administering Phase II of the municipal stormwater permitting program, under which several hundred small municipalities and other entities will need permits for the first time beginning in 2001.
- Immediately administering the existing Region 6 CAFO general permit and providing TPDES authorization for new facilities and for existing facilities when their EPA-issued authorization expires.
- Assimilating the EPA's files and records, indexing them and making them available to regional inspection staff and to the public .
Margaret Hoffman received her J.D. Degree from St. Mary's University School of Law in 1975, where she was editor in chief of the St. Mary's Law Journal. After a judicial clerkship, she joined Wood, Boykin & Wolter in Corpus Christi, where she practiced commercial litigation and bankruptcy for 17 years.
In 1993, she left the firm to pursue an LL.M. in energy and environmental law at the University of Houston Law Center, which she earned in December of that year. Formerly Senior Attorney for Water Quality and Water Rights at the TNRCC, Ms. Hoffman is currently Director of the Environmental Law Division.