2003-2008: TCEQ National Comments Relating to Water Issues
Official statements of the TCEQ's position regarding national policies and activities relating to water issues prior to 2010.
DATE SUBMITTED: 12/19/08
SHORT TITLE: Proposed Federal Requirements Under the Underground Injection Control (UIC) Program for Carbon Dioxide (CO2) Geologic Sequestration (GS) Wells
SUBMITTED TO: EPA
OFFICE PREPARING: Office of Permitting and Registration
STAFF CONTACT: Ben Knape
SUMMARY OF COMMENTS:
Appropriate Level of Regulation
The tailoring of the basic regulations appropriate for injection of nonhazardous industrial waste to the unique characteristics of CO2 injection has resulted in proposed CO2-GS requirements that in many respects exceed the stringency of those for injection of hazardous waste. The 30-year history of CO2 injection for enhanced oil recovery in the Permian Basin of West Texas without negative impacts on USDWs suggests that the existing rules for enhanced recovery operations (using Class II injection wells) contain the necessary performance standards for drinking water protection, and accordingly should provide the starting point for CO2-GS requirements upon which any specially tailored requirements should be added. Recognizing mandates under the Safe Drinking Water Act (SDWA) for protection of drinking water, the proposed rules, in their inappropriate stringency, may inhibit implementation of carbon capture and storage technology.
Appropriate Financial Assurance over Long Post-Injection Timeframes
EPA is proposing that the rule only specify a general duty to obtain financial assurance (FA) acceptable to the Director (i.e., EPA regional administrator or state program director) to guarantee performance of post-injection site care, monitoring, corrective action, and closure, and will provide guidance to be developed at a later date on recommended mechanisms. Proposed TCEQ comments include recommendations for greater specificity in FA requirements consistent with the greater cost uncertainties and longer timeframes addressed by EPAs proposed FA requirements for CO2-GS projects versus those required for other classes of underground injection.
Flexibility and Streamlining in Class VI Program Primacy Considerations
According to current Texas law, the proposed new class of injection wells (Class VI) for CO2-GS will be in TCEQ's jurisdiction. However, such jurisdictional lines are subject to change by state legislation. Flexibility and a streamlined approval process will be needed in federal authorization of the new Class VI well program at whichever agency is designated by the state legislature, free from constraints that EPA has traditionally imposed on state agencies program primacy applications.
Resource Needs for Regulation of the Proposed New Class of Wells
The proposed requirements for CO2-GS will need new funding through congressional or state legislative appropriations. The resource needs are most acute with respect to numbers of trained staff, tools for the important iterative process of predictive computational modeling of CO2 fate and transport, and guidance in evaluation and implementation of the various plans specified in the proposed rules which are either unique to CO2-GS projects or necessitate unique considerations under such rules.
Back to topDATE SUBMITTED: 08/18/08
SHORT TITLE: Clean Water Act Section 303(d): Availability of List Decisions
SUBMITTED TO: EPA
OFFICE PREPARING: Office of Compliance and Enforcement
STAFF CONTACT: Laurie Curra
SUMMARY OF COMMENTS:
TCEQ finds that by identifying the entire bay as impaired the EPA is not communicating to the public that elevated levels of bacteria occur only at the urban beach sites and that by assigning the impairment to Category 5a (TMDL will be scheduled), the EPA is communicating that a TMDL is appropriate and imminent, rather than that additional information is required to determine the best way to address the listing (Category 5c). After considering public comment, should EPA take this federal action, TCEQ recommends that EPA geographically define the impairment as restricted to the urban beaches to minimize undue burden for the state and stakeholders. TCEQ would assign the impairment to Category 5c to communicate that additional information is needed to determine the most cost effective way to address the impairment. Until the Commission has considered the advice of a stakeholder workgroup and determined the appropriate use of Beach Watch program data and information, TCEQ urges that the EPA not to take this action.
DATE SUBMITTED: 04/08/08
SHORT TITLE: Revised NPDES Permit Regulations for Concentrated Animal Feeding Operations
SUBMITTED TO: EPA
OFFICE PREPARING: Office of Permitting, Remediation, and Registration
STAFF CONTACT: Charles Maguire
SUMMARY OF COMMENTS:
The general permit process, authorized by the Texas Legislature, is an expedited approach to issue permits to protect state water resources to dischargers of similar waste and type of operations using limited state resources. TCEQ adopted the CAFO general permit in 2004 for Texas Pollutant Discharge Elimination System (TPDES) CAFOs to be consistent with the 2003 changes in federal CAFO regulations. Subsequent to the adoption of the 2004 CAFO General Permit, TCEQ issued over 750 authorizations under the general permit to the majority of the CAFOs in the state.
In its Supplemental Notice of Proposed Rulemaking (SNPRM), EPA proposes three different approaches for Nutrient Management Plan (NMPs) but did not provide rule language that would be adopted to implement these approaches. Without the ability to review specific rule language, the TCEQ cannot adequately consider how CAFO permitting in Texas would ultimately be affected by the proposal. In addition, it is unclear from the proposal whether delegated states would have the authority to choose which approach is the most appropriate method for their regulatory program.
In addition, in the SNPRM, EPA asserts that the permitting authorities have known for several years generally what will be required under the final rule . . . . Therefore, EPA is proposing to give the states only six to eight months to incorporate the changes into their regulatory programs. This SNPRM is the first time EPA has proposed three different approaches to NMPs and has provided no rule language that may be adopted to implement the approach EPA finally elects to adopt. Six to eight months is not sufficient time to address the magnitude of the changes EPA is now proposing. The TCEQ will need to initiate amendments to the Subchapter B CAFO regulations to incorporate changes adopted by the EPA in this action. EPA should allow states a minimum of one year to adopt changes and two years if a statutory change is needed as is currently allowed under the Memorandum of Agreement between EPA and the TCEQ. We urge EPA to reconsider its deadlines in light of the changes it is now proposing.
The permitting process changes described in the proposed revisions to the CAFO rule would require CAFO applicants, under both general and individual permits, to submit an NMP for agency review and approval with an opportunity for public comment and public participation on the terms of the NMP. The proposed revisions, if adopted, would require a modification to the current TCEQ general permit process and more TCEQ staff resources to implement the proposed review, notice, comment, and public participation process for over 750 CAFOs in Texas.
TCEQ needs flexibility to develop a process for determining when subsequent revisions of NMPs will require review, and of those reviewed, what will require public notice. TCEQ encourages EPA to consider providing latitude to delegated states to work within the processes they have already established. Depending on the federal CAFO amendments adopted, the NMPs for all Texas CAFOs may need to be revised annually when the soil test is received and waste/wastewater application rates or cropping patterns change. Due to limited state resources it would be nearly impossible to review these annually. TCEQ's primary concern is that repeated and frequent public notice for all NMPs will unnecessarily tax state resources that could be focused on more pressing environmental concerns.
TCEQ recommends allowing the terms of the NMP to be publicly noticed when the TCEQ proposes revisions to the CAFO general permit. Each individual CAFO should provide site specific information regarding its facility with the Notice of Intent application for coverage under the general permit to comply with the approach specified in the general permit. Substantial changes to a CAFOs NMP would include those changes related to substantial increases in environmental risk instead of simple inputs for rate calculations. For example, the process could focus the public notice requirements on new and significant expansions and on CAFO operations where soil test phosphorus levels exceed the 200 parts per million (ppm) threshold. TCEQ would recommend that EPA consider this process because it focuses on the CAFOs where nutrient management changes need to be made. The required annual reporting provides the agency with a way to monitor the success of the NMPs statewide because of the soil test analysis being reported. If the CAFO is failing to hold soil test phosphorus levels below the 200 ppm threshold, then changes in nutrient management would be required based on the TCEQ approved NUP, and the public could be provided with notice and the opportunity for comment. For other existing CAFOs that have NMPs that are producing satisfactory results relative to environmental indicators, they would be monitored through the annual reporting, which is part of the public record. There would be no need to use agency resources to review and then provide notice for public review and comment on the less substantial changes in those NMPs. TCEQ recommends this option be allowed by the final rule or sufficient flexibility provided to develop a workable approach which allows states the flexibility in defining which substantial changes require notice.
TCEQ accepts the National Resource Conservation Service (NRCS) 590 practice standard to meet CAFO rule requirements. TCEQ needs the latitude to continue to use the NMP content guidelines it has previously developed, specifically the acceptance of the NRCS 590 practice standard as a complete NMP. The Effluent Limitation Guidelines items EPA includes in their NMP template are already included in the Texas CAFO's pollution prevention plan and should not need to be duplicated in the NMP.
DATE SUBMITTED: 01/16/08
SHORT TITLE: EPA and Army Corps of Engineers Guidance Regarding Clean Water Act Jurisdiction After Rapanos
SUBMITTED TO:EPA and Army Corps of Engineers
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Tom Weber
SUMMARY OF COMMENTS:
TCEQ's comments describe Texas Surface Water Quality Standards, recognizing the importance of Texas wetlands in protecting water quality and the many additional functions of wetlands. Much of Texas' streams and associated wetlands are non-navigable and, consequently, according to the draft guidance, the jurisdictional status of wetlands associated with these streams will be determined on a fact-specific (i.e., case-by-case) basis. Finally, wetland functions should be carefully considered in establishing a significant nexus in fact-specific jurisdictional determinations for wetlands with hydrologic connections to non-navigable tributaries to ensure protection of the chemical, physical, and biological integrity of downstream navigable waters.
DATE SUBMITTED: 08/10/07
SHORT TITLE: City of Austin - Proposed Rule Regarding Void and Water Flow Mitigation
SUBMITTED TO: City of Austin
OFFICE PREPARING: Office of Compliance and Enforcement
STAFF CONTACT: Tracy Miller
SUMMARY OF COMMENTS:
The Edwards Aquifer Protection Program (EAPP) is concerned that some technical requirements proposed by the City of Austin (COA) may not provide the minimum standards necessary to protect the Edwards Aquifer. The EAPP has the following three concerns: the use of controlled low strength material encasement rather than concrete encasement of sewer lines; the plugging methods for sensitive features intercepted in the trench floor; and, the thickness of wall sealants. Without additional engineering data to support the COA's proposals for these specific methods, the EAPP will not be able to approve plans submitted with these methods.
The EAPP also has concerns with the COA's proposed Geologist Void Description and Documentation Log Sheet. The COA's proposal directs the geologist to conduct a biological survey for karst invertebrates if life signs are present. The TCEQ does not require a biological survey and the COA's proposed form does not contain all of the administrative information necessary for the Edwards Aquifer tracking database; therefore, the EAPP will not be able to accept the COA's form in lieu of current EAPP application forms.
The EAPP recognizes that the COA's rule proposal provides some feasible options for the EAPP which provide more definitive requirements for protection of sensitive features encountered during construction activities; however, providing written support of their proposal at this time would circumvent the TCEQ process for amending rules. The TCEQ intends to consider portions of the COA's proposed rule language when developing an Edwards Aquifer rule amendment in the future.
DATE SUBMITTED: 08/09/07
SHORT TITLE: Texas Water Development Board Economically Distressed Areas Program - SB3, Sec. 6.01
SUBMITTED TO: Texas Water Development Board (TWDB)
OFFICE PREPARING: Executive Office / Intergovernmental Relations Division
STAFF CONTACT: Steve Niemeyer
SUMMARY OF COMMENTS:
The Texas Water Development Board's (TWDB) proposed rules do not specify when the request for consultation might be forwarded to TCEQ, causing the agency review to be hurried and incomplete. As written, TWDB could wait until late in the 30 day period to consult with TCEQ. Six TCEQ divisions (Environmental Law, Water Quality, Water Supply, Border Affairs, Field Operations, and Enforcement), may potentially be involved in evaluating data to determine if there should be an objection to the request to continue temporary funding. TWDB should specify in the proposed rule that they will provide the request as quickly as possible, ensuring TCEQ staff adequate time to review the data, provide an answer to TWDB, and allow TWDB time to respond to the political subdivision within the 30 day period.
DATE SUBMITTED: 03/05/07
SHORT TITLE: NPDES Permit Fee Incentive for Clean Water Act Section 106 Grants
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Office of Permitting, Remediation, and Registration
STAFF CONTACT: Kimberly Wilson
SUMMARY OF COMMENTS:
TCEQ opposes the proposed rule due to the restriction in state discretion in allocating CWA Section 106 grants for state water quality programs and objects to proposed rule's interference in how state legislatures conduct business. Additional incentives for the effective management of state water quality programs, as proposed in the rulemaking, are unnecessary, as performance is already monitored by EPA’s Program Activity Measures.
DATE SUBMITTED: 12/12/06
SHORT TITLE: Nominations of Drinking Water Contaminants for the Contaminant Candidate List (CCL)
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Office of Permitting, Remediation, and Registration
STAFF CONTACT: Alicia Diehl
SUMMARY OF COMMENTS:
TCEQ recommends that two potential contaminants be included on the CCL - viruses in ground water and nitrite/nitrate in chloraminated water.
Viruses have been detected in ground water in several studies, but no nationwide study of wells has been completed. Viruses can cause a wide range of diseases.
Nitrate and nitrite can be formed in systems that use chloramines for disinfection. Nitrate and nitrate may cause methemoglobinemia in infants. Although a regulatory standard exists for measurements taken at an entry point to a distribution system, no recent nationwide study on occurrence has evaluated the extent of nitrate and nitrite occurrence within distribution systems.
In addition, TCEQ encourages EPA to continue to seek new ways to reduce the cost of this research monitoring on systems. Specifically, in developing sites for CCL contaminant monitoring under any unregulated contaminant monitoring, we recommend that EPA allow representative wells or sources to be sampled, rather than every source at a selected system.
DATE SUBMITTED: 12/08/06
SHORT TITLE: EPA Draft Listing Waters Impaired by Atmospheric Mercury
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Tom Weber
SUMMARY OF COMMENTS:
The TCEQ is supportive of the approach outlined in the draft Guidance document, which appears to be a compromise to listing the water body in 4b.
This approach acknowledges the complexity in developing TMDLs for waters impaired primarily by atmospheric mercury.
For waters included in the 5m subcategory, EPA recognizes that the schedule of TMDLs in 13 years is not appropriate, and that States would defer mercury TMDL development beyond this recommended time frame. The TCEQ is supportive of this approach which will allow states to show progress in restoring waters, while also recognizing that it will take much longer to address mercury-impaired waters.
The document also provides guidance on the “Recommended Elements of a Comprehensive State Mercury Reduction Program” (Attachment A), that a state would need in place to support the 5m listing. TCEQ should comment that atmospheric source reductions for power generating facilities beyond CAMR may not be necessary for a 5m listing. Additionally, the requirements for 5m should be limited to source reduction strategies that are linked to impairments.
EPA should undertake air monitoring to evaluate the results of CAMR nationally, not for a given state. Also, EPA should make specific funds available to state monitoring programs for support of the strategy’s implementation.
In one of the footnotes, it is stated that "This policy does not replace existing established laws or regulations governing listing of impaired waters or development of TMDLs under Section 303(d)." The TCEQ comments that the policy could potentially open states/federal government up to litigation over the fact that mercury impairments would languish in category 5.
DATE SUBMITTED: 11/07/06
SHORT TITLE: EPA Draft Underground Injection Control Program Guidance
SUBMITTED TO: Ground Water Protection Council
OFFICE PREPARING: Office of Permitting, Remediation, and Registration
STAFF CONTACT: Ben Knape
SUMMARY OF COMMENTS:
Except for its advocacy of a permit process, EPA's draft guidance is, in effect, an endorsement of TCEQ's lead taken in requiring more detailed and protective technical reviews and approval conditions for CO2 injection wells. Going a significant step beyond the authorization-by-rule process provided in federal regulation, the Texas UIC rules require written approval of submitted inventory information before construction and operation of any rule-authorized well. Also, the Texas rules require both permitted and rule-authorized injection wells to comply with any technical specifications necessary to safeguard against pollution of underground sources of drinking water (USDW). These two rule sections enable TCEQ to require a Class V experimental technology well to be subject to a level of technical review and approval conditions which will address the technical and public interest considerations identified in the guidance.
From TCEQ rules, therefore, the responsibility exists to impose and enforce any necessary protective requirements on a Class V rule-authorized well through specified conditions provided with the required approval letter. Any failure to comply with such conditions would be grounds for enforcement including withdrawal of the wells approval and rule authorization. In such event, federal regulations and state rules authorize the Director to require the well to apply for and obtain a permit or to undergo closure.
The above described approach has been successfully used by TCEQ in technical review, approval, and subsequent regulation of the Frio Brine Pilot Project for test injection of CO2 in Liberty County, Texas. In this case, TCEQ encouraged, and the operator (the Texas Bureau of Economic Geology) conducted, an extensive outreach program for public education during the project proposal phase. The outreach activities included meetings with local government (city and county) and the local chamber of commerce, publication in the Houston Chronicle of an article describing the proposed project, information flyers (fact sheets) provided to project-area residents and other interested persons, and a public meeting. The meeting was well attended by citizens from the Liberty County area and was covered by local news media.
In conclusion, TCEQ shares EPA's commitment to transparency of the regulatory process and unimpeded information flow. In this interest, TCEQ's UIC Program strongly supports the beneficial process of public participation in any formal rulemaking initiatives or permit processes required by regulations or by Director discretion. In response to the guidance calling for actions beyond the requirements of federal regulations, TCEQ supports the more streamlined process of Class V well approval with public information outreach, in preference to the permit process recommended in the guidance, which is not mandatory for Class V wells.
DATE SUBMITTED: 09/18/06
SHORT TITLE: National Primary Drinking Water Regulations for Lead and Copper
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Office of Permitting, Remediation, and Registration
STAFF CONTACT: Don Thompson
SUMMARY OF COMMENTS:
EPA requests comment on seven specific rule elements and input on four areas for potential future rulemaking.
- Minimum Number of Samples (III.A.): EPA retains the five-sample minimum, but also solicits comment on an alternative which would let non-transient non-community water systems (NTNCWS) with fewer than five taps collect one sample tap. TCEQ supports the proposed alternative.
- Compliance and Monitoring Clarifications (III.B.): EPA clarifies compliance and monitoring periods. The proposal is consistent with current TCEQ implementation strategies, but also comments that states should have flexibility with schedules for new systems and systems on triennial monitoring.
- Reduced Monitoring Criteria (III.C.): EPA requests comment on disallowing reduced monitoring for systems with Lead Action Level exceedances even if their water quality parameters are within range. TCEQ supports the proposal; it is consistent with current TCEQ protocols.
- Notification and Approval of Treatment or Source Changes (III.D.): EPA proposes that state approval be required for sources or treatment changes, and also requests comment on an alternative with state notification but not approval. They also request comment on timing. TCEQ comments that source and treatment changes should not require state approval, noting that existing state approval processes should be adequate, and further comments that major, capital changes should be handled differently than operational changes.
- Notifying Customers of Tap-sampling Lead Results (III.E.): EPA will now require that systems send lead sample results to customers whose homes are sampled, and requests comment on the contents and timing of the notice. Generally, TCEQ comments that public notification requirements for lead should be more consistent with EPA’s Public Notice Rule, and requests additional guidance on the impact this may have on property values of the sampled houses.
- Public Education Requirements (III.F.): EPA’s proposal modifies the mandatory notice and Consumer Confidence Report (CCR) language, delivery methods, and timing. Generally, TCEQ comments that public notification requirements for lead should be more consistent with EPA’s Public Notice Rule, that notices should include information for consumers explaining that the most likely vector for children getting exposed to lead is through contaminated dirt or old paint, and that notices should not overstate the urgency.
- Lead Service Line Replacement Changes (III.G.): EPA clarifies the rule to require water systems to start up lead service line replacement programs that were suspended when sampling showed that the pipes were adequately scaled if an exceedance of lead is found in tap samples. TCEQ supports this clarification and notes that this is consistent with current implementation.
- Other Issues: Plumbing Component Replacement (III.H.1): EPA is requesting comment as to whether plumbing replacement should be specifically defined as a corrosion control technique. TCEQ generally comments that this should be a matter for state flexibility rather than being included explicitly in rule language.
- Other Issues: Point of Use Treatment (III.H.2): EPA is requesting comment as to whether use of POU (or point of entry) devices should be specifically defined as a corrosion control technique. TCEQ generally comments that this should be a matter for state flexibility rather than being included explicitly in Federal rule language. EPA should consider POU and POE treatment as part of a comprehensive distribution rule.
- Other Issues: Site Selection in Areas Home Treatment Units (III.H.3): EPA amends the LCR to clarify how to pick sample sites when all homes have treatment units. TCEQ comments that this is consistent with existing EPA guidance and state implementation strategies.
- Other Issues: Water Quality Parameter Monitoring (III.H.4): The Agency requests comment on requiring systems to synchronize required water quality parameter sampling with lead and copper tap sampling. TCEQ comments that this is consistent with guidance and current implementation strategies.
In addition, TCEQ proposes to comment that all of these revisions should be considered in the context of the overall, comprehensive Distribution Rule that EPA is currently discussing, instead of being adopted as a one-issue rule.
DATE SUBMITTED: 08/29/06
SHORT TITLE: National Pollutant Discharge Elimination System (NPDES) Permit Regulation and Effluent Limitation Guidelines for Concentrated Animal Feeding Operations
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Office of Permitting, Remediation, and Registration
STAFF CONTACT: Charles Maguire
SUMMARY OF COMMENTS:
The general permit process, authorized by the Texas legislature, is an expedited approach to issue permits to protect State water resources to dischargers of similar waste and type of operations using limited state resources. TCEQ adopted the CAFO general permit in 2004 for TPDES CAFOs to be consistent with the 2003 changes in federal CAFO regulations. Subsequent to the adoption of the 2004 CAFO General Permit, TCEQ issued over 600 general permits to the majority of the CAFOs in the state. Depending on the federal CAFO amendments adopted, the nutrient management plans (NMPs) for all Texas CAFOs may need to be revised annually when the soil test is received and waste/wastewater application rates or cropping patterns change.
The permitting process changes described in the proposed revisions to the CAFO rule would require CAFO applicants, under both general and individual permits, to submit a NMP for agency review and approval with an opportunity for public comment and public hearing on the NMP. The proposed revisions, if adopted, would require a modification to the current TCEQ general permit process and more TCEQ staff resources to implement the proposed notice, comment, and public hearing process for over 600 CAFOs in Texas.
TCEQ needs flexibility to develop a process for determining when subsequent revisions of NMPs will require review, and of those reviewed, what will require public notice. TCEQ is in favor of public review and comment on the NMPs, but would encourage EPA to consider providing latitude to states with delegation to work within the processes they have already established. TCEQ’s primary concern is that repeated and frequent public notice for all NMPs will unnecessarily tax state resources that could be focused on more pressing environmental concerns.
TCEQ would like to work with the process previously developed. That process could focus the public notice requirements on new and significant expansions and on CAFO operations where soil test phosphorus levels exceed the 200 parts per million (ppm) threshold. For those CAFOs, TCEQ’s rules require a Nutrient Utilization Plan (NUP) to be developed and submitted to the agency for approval. TCEQ would recommend that EPA consider this model because it focuses on the CAFOs where nutrient management changes need to be made. The required annual reporting provides the agency with a way to monitor the success of the NMPs statewide because of the soil test analysis being reported. If the CAFO is failing to hold soil test phosphorus levels below the 200 ppm threshold, then changes in nutrient management would be required based on the TCEQ approved NUP, and the public could be provided with notice and the opportunity for comment. For other existing CAFOs that have NMPs that are producing satisfactory results relative to environmental indicators, they would be monitored through the annual reporting, which is part of the public record. There would be no need to use agency resources to review and then provide notice for public review and comment on the changes in those NMPs.
The contents of the NMP being proposed by EPA extend beyond what is required by TCEQ. TCEQ accepts the NRCS 590 practice standard to meet CAFO rule requirements for a NMP without the addition of the Effluent Limitation Guidelines (ELG) proposed by EPA. EPA contends that the 2nd Circuit opinion upheld their ELG requirements. The 2nd Circuit opinion did not address the requirements of an NMP, but only the issue related to public comment on the NMPs. EPA is going beyond the implementation of the 2nd Circuit decision in requiring the ELG elements as part of the NMP. TCEQ needs the latitude to continue to use the NMP content guidelines it has previously developed, specifically the acceptance of the NRCS 590 practice standard as a complete NMP. The ELG items EPA includes in their NMP template are already included in the CAFO's pollution prevention plan and should not need to be duplicated in the NMP.
In addition to TCEQ concerns with the NMP requirements in the proposed rule changes, the agency is also concerned about the technical permitting review of new source swine, poultry, and veal permit applications. The proposed review may require TCEQ staff to undergo special training on the Natural Resource Conservation Service (NRCS) SPAW & AWM software to evaluate the no discharge performance standard methodology proposed under the revised rule. Neither AWM nor SPAW software is widely utilized in Texas, which will further impede the development and issuance of permits for new operations wanting to locate in Texas, and existing operations that wish to make changes to their operations.
Another area of concern is that the enforcement program at TCEQ will assume an added workload associated with TCEQ staff entering additional information into the EPA /PCS database to establish compliance with the non-standardized NMP information being proposed as a component of the required annual report.
Finally, TCEQ will need to initiate amendments to the Subchapter B CAFO regulations to incorporate changes adopted by EPA in this action. After the adoption of the federal regulations, new TPDES CAFOs and TPDES CAFOs currently covered under the general permit will not be able to amend their authorizations until federal changes are incorporated into the state regulations. These proposed revisions to the federal CAFO rule should consider the extensive allocation of TCEQ staff resources that would be needed for permitting and enforcement of CAFOs in Texas.
DATE SUBMITTED: 08/07/06
SHORT TITLE: National Pollutant Discharge Elimination System (NPDES) Water Transfers
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Office of Permitting, Remediation, and Registration
STAFF CONTACT: Todd Chenoweth
SUMMARY OF COMMENTS:
The TCEQ supports the proposed rule as drafted. Texas is a state of such climatic diversity that areas with a vast amount of streamflow do not necessarily have large populations. The TCEQ has a longstanding practice of utilizing water transfers to meet the needs of water-impoverished areas. Approximately 65 of the 150-plus permitted water transfers in Texas were permitted before the passage of the Clean Water Act of 1972. Under sections 101(g) and 510 of the Clean Water Act, permitting decisions regarding these water transfers should be left to the states. State law compels the TCEQ to consider and, where necessary, mitigate effects on water quality and the environment when permitting water transfers. Therefore, the TCEQ concludes that there is no need for federal regulation of water transfers.
DATE SUBMITTED: 07/07/06
SHORT TITLE: Compensatory Mitigation for Losses of Aquatic Resources
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Office of Permitting, Remediation, and Registration
STAFF CONTACT: Mark Fisher
SUMMARY OF COMMENTS:
The general nature of the comments is to support the revisions. TCEQ uses a watershed approach and supports the proposal not explicitly defining the term. The proposal is consistent with TCEQ procedures to address functions and values, and to define consistent information requirements as part of the application process. The proposal recognizes the regional differences of aquatic resources functions and therefore the importance of partnerships with the TCEQ to protect those functions.
DATE SUBMITTED: 05/01/06
SHORT TITLE: Small Drinking Water Systems Variances
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Office of Permitting, Remediation, and Registration
STAFF CONTACT: Anthony Bennett
SUMMARY OF COMMENTS:
TCEQ recommends a two-part approach of using both incremental costs as well as total drinking water costs within each size category and that 0.75% be used as the national level percentage.
TCEQ supports: using the 10th percentile in each size category; using the median household income as an appropriate factor of affordability; and, setting health protection levels for non-carcinogens and carcinogens.
TCEQ does not support an evaluation of affordability at the county level or any other non-national level and the listing of small system variance technology that does not fall below the affordability threshold.
DATE SUBMITTED: 04/19/06
SHORT TITLE: Coastal Impact Assistance Program (CIAP) Guidance to the States
SUBMITTED TO: Texas General Land Office
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Frank Fuller and Bruce Moulton
SUMMARY OF COMMENTS:
The comments are premised on the fact that MMS Draft Guidance is so vague it does little more than restate the legislation. Therefore, TCEQ does not know what voluntary environmental improvement efforts can be undertaken. TCEQ makes suggestions based on this premise.
In the draft comment letter, TCEQ: cites several agency programs that would benefit from the act, including the estuary programs and the TMDLs; requests that voluntary infrastructure BMPs for NPS abatement and other voluntary infrastructure projects associated with implementation of TMDLs and watershed implementation plans be exempted from a 23 percent cap on infrastructure; suggests that projects not be funded that are for mitigation and other activities required by an existing permit or regulatory action (this is consistent with other federal coastal/wetland programs); recommends that CIAP funding is unique and should be spent on projects that are only “above and beyond” normal maintenance activities; suggests that project funding be limited to coastal counties and have a direct nexus with the coastal environment; and, requests that MMS strengthen a state appeals process that is alluded to in the guidance because of the vagueness and lack of clarity in the guidance document.
DATE SUBMITTED: 10/07/05
SHORT TITLE: U.S. Fish and Wildlife Service's Proposal to Reintroduce the Silvery Minnow into the Big Bend Area of the Rio Grande
SUBMITTED TO: U. S. Fish and Wildlife Service (FWS)
OFFICE PREPARING: Office of Permitting, Remediation, and Registration
STAFF CONTACT: Herman Settemeyer
SUMMARY OF COMMENTS:
Comments would pertain to the potential impacts for water rights administered by the TCEQ watermaster program and potential impacts on private property. If the Rio Grande silvery minnow is reintroduced there is concern that under certain flow conditions, water right holders may not be able to divert water or private property owners may not be able to utilize their lands if flows and habitat are required for the minnow without interaction with the FWS. TCEQ comments would pertain to ensuring that water right holders and private property owners would be able to divert water and utilize their property without limitations from the FWS. The FWS has indicated that there should be no impact on water right holders, however it is recommended that comments be provided to ensure that this is the case.
DATE SUBMITTED: 07/22/05
SHORT TITLE: Application for a Presidential Permit for Pipeline Facilities to be Constructed, Operated and Maintained on the Border of the United States
SUBMITTED TO: U. S. Department of State
OFFICE PREPARING: Intergovernmental Relations Division
STAFF CONTACT: Steve Niemeyer
SUMMARY OF COMMENTS:
The letter provides general comments about the draft environmental assessment for the Valero Burgos Pipeline Project in Hidalgo County, Texas and requests an extension of time to comment on the draft EA. The draft EA lists several waterbodies, including the Rio Grande and various canals, which the pipeline must cross under. While the canals are listed, they are listed by name only with no location information. While the EA does indicate that horizontal directional drilling will be used, the draft EA does not contain any maps showing the pipeline route. As a result, we do not know where the pipelines will be located or which canals supplying water for public water supply or agricultural use could potentially be affected, should a pipeline spill or breakage occur. Further, the State Department does not know when Appendix for the EA, which was prepared by a consultant and is supposed to contain the project maps and charts, will be available. In addition, the Federal Register notice states the pipeline will deliver one million gallons/month of naphtha to the Valero terminals in Edinburg, while the EA states it will be one million gallons/day. Although TCEQ does not have regulatory jurisdiction on this project as it is currently proposed, based on the available information, the agency has an interest in the project based on the possibility that spills could occur and pipelines could break during or after construction. Should this occur, public water supplies and agricultural uses could be adversely impacted. For reasons of inconsistency and lack of information, the comment period should be extended until the Appendix containing the relevant maps is provided. We cannot comment adequately without the requested information.
DATE SUBMITTED: 03/30/05
SHORT TITLE: Draft National Whole Effluent Toxicity (WET) Implementation Guidance
SUBMITTED TO: U. S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Water Quality Division
STAFF CONTACT: Jim Davenport
SUMMARY OF COMMENTS:
The TCEQ recommends that the EPA not consider this guidance a rule and require immediate implementation; for the continued need of flexibility to define implementation procedures for WET through established EPA-state coordinated processes; and that permittees be allowed to continue to perform toxicity reduction evaluations before requiring WET permit limits.
DATE SUBMITTED: 03/29/05
SHORT TITLE: National Pollutant Discharge Elimination System--Proposed Regulations To Establish Requirements for Cooling Water Intake Structures at Phase III Facilities; Proposed Rule
SUBMITTED TO: U. S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Water Quality Division
STAFF CONTACT: Curtis Seaton
SUMMARY OF COMMENTS:
Seven facilities in Texas (The Dow Chemical Company, Freeport; ALCOA World Alumina LLC, Point Comfort; Sterling Chemicals Inc., Texas City; Oxy Vinyls LP, Deer Park; MeadWestvaco Texas LP, Evadale Mill; ALCOA Inc., Rockdale; Lone Star Steel) are subject to these regulations, depending upon the option implemented in the final rule (Option A, B, or C). TCEQ is concerned about administrative costs associated with implementing Phase III. These costs are in addition to those associated with implementing Phase II. TCEQ recommends that the EPA establish separate performance standards, monitoring, and site-specific demonstrations for industrial cooling water impoundments and strongly supports the use of restoration as a compliance option.
DATE SUBMITTED: 03/28/05
SHORT TITLE: USFWS Notice of Availability of the Draft Barton Springs Salamander Recovery Plan; Notice of Initiation of a 5-Year Status Review for the Barton Springs Salamander
SUBMITTED TO: The United States Fish and Wildlife Service (USFWS)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Mary Ambrose
SUMMARY OF COMMENTS:
The letter provides, as attachments, information related to the evolution of the TCEQ’s Edwards Aquifer Protection Program since the original listing of the salamander as endangered. This will include the USFWS February 14, 2005 concurrence on not take if developers use the TCEQ’s Optional Water Quality Measures. The letter suggests that this joint water quality initiative be added to the list of large scale protection measures mentioned in the recovery plan. The letter points out that many of the conclusions about various threats have not been revisited since the listing of the species and that the effect of the new regulations should be evaluated by USFWS as part of the implementation of the recovery plan and as part of their evaluation of the status of the Barton Springs salamander. Due to the large volume of the attachments, they are not included in the sign off package. There is a summary at the end of the letter of the contents of each attachment. Please contact Mary Ambrose (x4813) if you would like to see the any of the information.
DATE SUBMITTED: 03/15/05
SHORT TITLE: USDA-NRCS Environmental Quality Incentive Program (EQIP)
SUBMITTED TO: The United States Department of Agriculture-Natural Resources Conservation Service (USDA-NRCS)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Clyde Bohmfalk
SUMMARY OF COMMENTS:
Support for existing priorities with a suggestion for including water conservation/water quantity as a national priority or allowing the State Conservationist the flexibility to administer the state program such that other priorities can be considered.
DATE SUBMITTED: 08/13/04
SHORT TITLE: Nomination of Mr. Tony Bennett for Consideration to Serve a Three-year Term as a Member on the National Drinking Water Advisory Council
SUBMITTED TO: Environmental Protection Agency (EPA)
OFFICE PREPARING: Water Supply Division
STAFF CONTACT: Buck Henderson
SUMMARY OF COMMENTS:
Texas should nominate a candidate for membership on this Council to represent the state regulatory program and ensure that Texas interests are represented. It is imperative that the state regulatory programs have a clear voice in the issues addressed by the Council A thorough and comprehensive review of Council actions and recommendations is necessary to ensure that the need for safe drinking water supplies is balanced against the ability of the regulated community to comply and the ability of regulatory agencies to provide assistance and oversight. Tony Bennett, R.S. is being nominated by TCEQ for one of the open positions on the Council.
DATE SUBMITTED: 06/07/04
SHORT TITLE: Guidelines Establishing Test Procedures for the Analysis of Pollutants Under the Clean Water Act; National Primary Drinking Water Regulations; and National Secondary Drinking Water Regulations; Analysis and Sampling Procedures
SUBMITTED TO: Environmental Protection Agency (EPA)
OFFICE PREPARING: Policy and Regulations
STAFF CONTACT: Clyde Bohmfalk
SUMMARY OF COMMENTS:
Support recommended changes, especially those withdrawing older EPA and technically deficient methods, adding new methods, promoting use of common methods for analyzing drinking water and wastewater samples, and promoting performance-based method flexibility for the Clean Water Act. Support clarifications regarding requirements for preserving and storing samples, use of capillary columns for methods involving gas chromatography, and use of multi-analyte methods related to the Clean Water Act. Recommends correction of apparent typographical errors. Recommends approval of EPA Method 327.0 for routine daily monitoring for chlorite at the entrance to distribution systems. Supports the guidance document for alternate test procedures to determine microbiological constituents in drinking water with one recommended change and one correction.
DATE SUBMITTED: 05/28/04
SHORT TITLE: The Drinking Water Contaminant Candidate List CCL2: Notice
SUBMITTED TO: Environmental Protection Agency (EPA)
OFFICE PREPARING: Water Supply
STAFF CONTACT: Buck Henderson
SUMMARY OF COMMENTS:
TCEQ supports the EPA for all efforts to incorporate sound science, occurrence information and health risk-based priority setting into the regulatory development process. TCEQ recommends that when EPA uses surrogate data for a contaminant that they focus not only on the release of a contaminant, but also on existing data showing the impact of that release. Depending on the contaminant, a release may have no real impact on water that is used as a drinking water source. TCEQ recommends that EPA not automatically carry over contaminants from previous CCL lists. We recommend that all occurrence and health risk data be considered when making the determination of whether to carry over a contaminant from the previous CCL. With respect to the microbiological contaminant candidates listed under Table III-2-Draft Drinking Water CCL2, the reference to "other freshwater algae", although carried over from CCL1, appears to be too general to be useful. We would encourage EPA to target specific constituents of concern (ie-specific algae or their metabolites that have a known or predicted adverse impact on drinking water) for future CCL lists, not broad groups. Those algae that are benign should not be considered contaminants. In response to the virulence factor activity relationship (VFAR) described by NRC, we question whether this approach, while promising, has current practical value for the CCL2. As an alternate solution to determining the impact of microbial contaminants, we recommend that the EPA consider practical methods for improving the correct, timely identification of actual waterborne illness for future microbial contaminants.
DATE SUBMITTED: 05/28/04
SHORT TITLE: USFWS Notice of Availability of the Draft Karst Survey Guidance and Scientific Permit Requirements for Conducting Presence/Absence Surveys for Endangered Karst Invertebrates in Central Texas
SUBMITTED TO: U.S. Fish and Wildlife Service (USFW)
OFFICE PREPARING: Policy and Regulations
STAFF CONTACT: Mary Ambrose
SUMMARY OF COMMENTS:
The TCEQ's document was not designed to identify endangered species habitat (which is beyond the jurisdiction of the TCEQ), it was designed to facilitate compliance with our Edwards Aquifer Protection Program to protect water quality by providing guidance on how to identify sensitive karst features where a potential for hydraulic interconnectedness between the surface and the aquifer exists and where rapid infiltration of water to the subsurface may occur. While the karst features identified using this guidance may be of aid in identifying endangered species, that was not its intended purpose. The TCEQ may change our document at anytime to meet our regulatory needs and we will not maintain or distribute older versions of forms or guidance once it has been updated. The information regarding how to obtain the TCEQ's guidance and forms contained in the draft document needs to be more specific and indicate the regional office as the point of contact to answer questions on the Edwards Aquifer Program. The USFWS document is inaccurate in it's discussion of how an individual can determine when a TCEQ approved water pollution abatement plan (WPAP) is needed to conduct certain activities as part of the presence/absence surveys. Currently, the USFWS document inaccurately indicates that blasting does not need a WPAP, but the use of a backhoe does. Our rules state that clearing, excavation, or any other activities that alter or disturb the topographic, geologic, or existing recharge characteristics of a site would be considered a regulated activity under the TCEQ Edwards Aquifer Program.
DATE SUBMITTED: 03/17/04
SHORT TITLE: Use of Composted Material for Erosion and Sediment Control
SUBMITTED TO: Texas Department of Transportation (TXDOT)
OFFICE PREPARING: Policy and Regulations
STAFF CONTACT: Clyde Bohmfalk
SUMMARY OF COMMENTS:
The letter provides clarification that compost use should be consistent with TXDOT specifications and that use of compost is restricted in the Edwards Aquifer region. It also includes references to several web sites and guidance documents for further information.
DATE SUBMITTED: 01/20/04
SHORT TITLE: Stage 2 Disinfection Byproducts Rule
SUBMITTED TO: Environmental Protection Agency (EPA)
OFFICE PREPARING: Water Supply
STAFF CONTACT: Tony Bennett
SUMMARY OF COMMENTS:
Comments on this EPA proposed Rule Package cover these subjects: Early implementation of the initial distribution system evaluation; Health risks of disinfection byproducts (haloacetic acids and trihalomethanes); Occurrence of disinfection byproducts within distribution systems; Compliance at public water systems that purchase and re-distribute treated water (consecutive systems); Population-based monitoring requirements for disinfection byproducts; and Significant excursions in the concentration of disinfection byproducts.
DATE SUBMITTED: 01/09/04
SHORT TITLE: Long Term 2 Enhanced Surface Water Treatment Rule
SUBMITTED TO: Environmental Protection Agency (EPA)
OFFICE PREPARING: Water Supply
STAFF CONTACT: Tony Bennett
SUMMARY OF COMMENTS:
Comments on this EPA proposed Rule Package cover these subjects: Early implementation of the rule; Raw water monitoring for cryptosporidium and e. coli; Bin classification based on raw water sampling results; Seasonal monitoring; Reclaimed water monitoring; Treatment credits for various treatment techniques and pretreatment practices; Inconsistency with existing EPA backed treatment goals.
DATE SUBMITTED: 07/18/03
SHORT TITLE: Region 6 Draft Strategic Plan
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Strategic Assessment
STAFF CONTACT: Tom Weber
SUMMARY OF COMMENTS:
The TCEQ comments note that the proposed Region 6 Strategic Plan is new, and is still under development. The TCEQ notes that the proposed plan appears to be largely a narrative description of existing programs under the new planning headings at this point, with several sections of the plan still to be developed, most significantly those that deal with partnership agreements and regional accountability. The TCEQ comments also note that Goal 2, Clean and Safe Water, differs considerably from the rest of the draft plan in that it is still much more EPA command and control oriented than the other sections of the plan, which appear to support more partnership based approaches with the states. The TCEQ comments are generally supportive of new planning goals for homeland security.
DATE SUBMITTED: 07/15/03
SHORT TITLE: Proposed Regulations to Establish Cooling Water Intake Structures at Phase II Existing Facilities; Notice of Data Availability
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Policy and Regulations
STAFF CONTACT: Dan Burke
SUMMARY OF COMMENTS:
TCEQ is aware of the need to mitigate the effects of entrainment and impingement of aquatic organisms in cooling water intake structures, but the agency is also concerned about implementation costs for state agencies responsible for the requirements under the National Pollutant Discharge Elimination System. The agency supports options that allow industries to either choose appropriate specific technologies or present site specific data and studies to determine the best protective approach for the site. This approach could significantly reduce compliance and administrative costs and still protect sensitive aquatic ecosystems.
DATE SUBMITTED: 05/07/03
SHORT TITLE: Texas Coastal Nonpoint Source Pollution Control Program
SUBMITTED TO: National Oceanic and Atmospheric Administration
OFFICE PREPARING: Strategic Assessment
STAFF CONTACT: Tom Weber
SUMMARY OF COMMENTS:
TCEQ will not further expand Phase 2 TPDES storm water permit coverage to all coastal cities; TCEQ and Authorized Agents that implement our OSSF program will be unable to initiate a comprehensive inspection program; Nitrogen limited waters in the coastal area will not likely be detected within two years and upgrades or replacement of OSSFs in those areas cannot occur in this time frame; Local government assistance and outreach efforts that the agency offered in 2002 may no longer be a effective means to promote implementation of NPS controls, given the economic downturn; and Clarifications are provided relating to permit implementation tools TCEQ uses.
DATE SUBMITTED: 04/16/03
SHORT TITLE: Advance Notice of Proposed Rulemaking - "Waters of the U.S."
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Environmental Law
STAFF CONTACT: Stephanie Bergeron
SUMMARY OF COMMENTS:
The proposed comments (1) describe the importance of Texas' tributary system; (2) discusses the role of the state's water quality standards in protecting wetlands and other waters functions and values; and (3) recommend the EPA and Corps continue with the existing regulations except where the Migratory Bird Act was the sole basis for the regulation in response to the SWANCC decision. Included as background is the Notice and responses (some in draft form) to the ANPRM from ECOS, ASWIPCA, and the Galveston Bay Council.
DATE SUBMITTED: 01/27/03
SHORT TITLE: Proposed Comments on EPA Federal Register Notice related to Withdrawal of Revisions to the Water Quality Planning and Management Regulation and Revisions to the National Pollutant Discharge Elimination System Program in Support of Revisions to the Water Quality Planning and Management Regulation
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Policy and Regulations
STAFF CONTACT: Clyde Bohmfalk
SUMMARY OF COMMENTS:
Supports withdrawal of July 2000 regulation. Encourages EPA to continue efforts to revise the existing regulation with input from state environmental agencies. Commitment of state of Texas to develop and implement TMDLs. Offers to continue to work with EPA