Attorney and Parnter at Perales, Allmon, & Ice, P.C.

In this issue’s Q&A, Texas+Water Editor-in-Chief, Dr. Todd Votteler, interviews Eric Allmon, J.D. Allmon has degrees in civil engineering and liberal arts and received his J.D. in 2001 from the University of Texas at Austin. He served in the Office of Public Interest Counsel at the Texas Commission on Environmental Quality (TCEQ) from 2001 to 2005. In 2005 he joined the law firm now known as Perales, Allmon, & Ice, P.C.

Currently, Allmon represents 22 environmental groups that recently filed a petition with the U.S. Environmental Protection Agency (EPA) to revoke the authority that EPA previously delegated to TCEQ to issue permits to control water pollution in Texas. The TCEQ program in question is known as the Texas Pollutant Discharge Elimination System (TPDES). EPA delegated their authority to TCEQ to regulate water pollution under the federal Clean Water Act of 1972. The 22 petitioners represented by Allmon claim that TCEQ has made it too easy for industries to contaminate waterways across Texas.

What motivated the 22 petitioners to come together to petition EPA to revoke the authority that was delegated to TCEQ in 1998 to issue permits to control water pollution?

Many of the petitioners for years now have participated in the permitting process advocating that Texas follow federal law to fully protect the state’s waterways. But TCEQ has steadfastly refused to do so. Senate Bill 709, passed by the Texas Legislature in 2015, made several changes to the permitting process that petitioners and EPA expressed concern about at the time.

Implementation of that bill has now progressed to a point where it is clear that these provisions violate the federal minimum requirements for the TPDES program. Therefore petitioners feel like the time has come to ensure EPA is aware of the systematic deficiencies in the Texas program so that EPA can require that Texas correct these deficiencies

What are the petitioners asking EPA to do under the petition?

Petitioners are asking that EPA first work with Texas to implement the necessary regulatory and statutory corrective actions identified in the petition. For one, TCEQ currently declares in every case that the requested permit is insignificant. On that basis, TCEQ refuses to implement federal law requiring that an applicant to demonstrate that the proposed discharge is necessary with no feasible alternatives. This approach has resulted in the needless contamination of waterways throughout the state. We ask EPA to force Texas to simply acknowledge reality and engage in the required analysis to determine whether requested permits are necessary, including an analysis of alternative options.

Second, when a permit is formally opposed, Texas places a burden on the public to demonstrate that a permit is unsafe. We ask that EPA force TCEQ to follow federal requirements and require that an applicant prove that a proposed permit meets all applicable requirements.

Additionally, Texas law allows TCEQ to essentially pick and choose who would be allowed to challenge a permitting decision in court. This prevents a genuine system of checks and balances. Federal law requires robust opportunities for judicial review, so petitioners ask that EPA require Texas to pass a statute ensuring that all persons particularly impacted by a permitting decision will have a right to seek judicial review of that decision.  

If Texas refuses to make those changes, then we ask that EPA initiate the process of withdrawing delegation of the program, which would include a thorough examination of the Texas program and a hearing held by EPA to examine the deficiencies petitioners have identified in the Texas program. If Texas continues to refuse to correct its program after those opportunities to do so, then petitioners ask that EPA withdraw Texas’ delegated authority to administer the National Pollutant Discharge Elimination System (NPDES) program. At that point, EPA would directly administer the program as it did prior to 1998.

How many states have been delegated this same authority by EPA to administer the NPDES program in their states under the Clean Water Act? Has EPA ever revoked the authority to administer the NPDES program once it has been delegated to a state?

There are 47 states that have been delegated authority to administer the NPDES program within their state. To my knowledge, EPA has not previously withdrawn a state’s authority to administer the NPDES program after authority has been delegated. But as I’ve noted, our petition seeks corrective action first and withdrawal only if corrective action is not taken. There is ample precedent for corrective action by a state in response to such a petition.

For example, in 2015, a coalition of environmental groups in Wisconsin filed a similar petition asking that EPA withdraw Wisconsin’s delegated NPDES authority unless corrective action was taken to address 75 deficiencies that EPA had previously identified in the Wisconsin program. In response, Wisconsin has made many changes to both its regulations and statutes implementing the NPDES program, in order to avoid the withdrawal of delegated authority. Even in Texas, the state previously made changes to its underground injection control program in response to a petition to withdraw Texas’ delegated authority to administer that federal program.

In one analogous situation, the state of Virginia had placed statutory limits on judicial standing to challenge certain permits issued under authority delegated by EPA under the Clean Air Act. In that case, EPA did withdraw Virginia’s delegated authority to administer the relevant program until Virginia passed statutory changes that addressed the issue. Once the Virginia General Assembly made the required changes, Virginia was able to regain delegated authority over that federal program. Likewise, EPA at one point disapproved Pennsylvania’s water quality standards for reasons similar to those identified in our petition. EPA then took over the issuance of the relevant water quality standards until Pennsylvania corrected the similar deficiencies in its anti-degradation policy.

In all of these cases, the states ultimately made changes in response to the identification of deficiencies in the administration of the federal program rather than permanently lose delegated authority. We hope and expect that Texas will similarly choose to bring the state program into compliance by correcting the identified deficiencies rather than lose its delegated authority to administer the NPDES program.

Previously, have any of the petitioners asked TCEQ to change the way the TPDES program is being administered?

In numerous particular cases, several of the petitioners have asked TCEQ to administer its program in compliance with federal law, such as in the wastewater permitting actions identified in the petition.

What is the process you believe that EPA is required to undertake now that it has received the petition?

As a first step, we believe EPA is required to take a hard look at the issues raised in the petition, and we are confident EPA will do so. In fact, on October 12, EPA said that it would initiate an informal investigation into the allegations in order to determine if cause exists to initiate formal withdrawal proceedings. Within the informal process, we believe EPA should engage both the state of Texas and the petitioners to work to find ways to correct the identified deficiencies without withdrawing the program authority. If that is not accomplished, then EPA should hold a hearing on the petition to determine whether to grant or deny the petition. If Texas has still not corrected its program after that hearing, we feel that EPA should grant the petition and thereby withdraw Texas’ delegated authority to administer the program

If EPA does not provide the relief that is requested in the petition, what will the petitioners do next?

First, given the changes that have been made in response to similar petitions, we are hopeful that the changes requested will ultimately be made. But if EPA denies the petition, then petitioners will consider their options, including the pursuit of litigation to require that EPA withdraw Texas’ delegated authority to administer the NPDES program unless the identified deficiencies are corrected. The law is clear that the Texas program is deficient on the issues we have raised.