[Federal Register Volume 65, Number 140 (Thursday, July 20, 2000)]
[Notices]
[Pages 45063-45066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-17750]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-6734-9]
Notice of Availability of Proposed National Pollutant Discharge
Elimination System (``NPDES'') General Permit for Offshore Oil and Gas
Exploration, Development and Production Operations off Southern
California
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of availability of proposed NPDES General Permit
(Reissuance).
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SUMMARY: The Regional Administrator, EPA, Region 9, is proposing to
issue an NPDES general permit (permit No. CAG280000) for discharges
from oil and gas exploration, development and production operations in
Federal waters offshore of the State of California. This document
announces the availability of the proposed general permit and fact
sheet for public comment. When issued, the proposed permit will
establish effluent limitations, prohibitions, and other conditions on
discharges from facilities in the general permit area. These conditions
are based on the administrative record.
This document also announces the availability of the following
documents
[[Page 45064]]
for public review: (1) Ocean Discharge Criteria Evaluation (``ODCE'')
which evaluates the proposed discharges for compliance with the
requirements of section 403(c) of the Clean Water Act (``CWA''), (2)
two biological assessments (``BAs'') (for two different groups of
species) which evaluate the proposed discharges for compliance with the
requirements of the Endangered Species Act, and (3) an essential fish
habitat (``EFH'') assessment which evaluates the proposed discharges
for compliance with the 1996 amendments to the Magnuson-Stevens Fishery
Conservation and Management Act.
DATES: Comments on the proposed general permit must be received or
postmarked no later than September 5, 2000.
Public Hearing: A public hearing to receive public comment
concerning the proposed general permit will be held at the time and
location provided below:
Date: August 23, 2000.
Time: 2 p.m.
Place: Santa Barbara County Administration Building, 105 E. Anapamu
Street, Santa Barbara, CA 93101
ADDRESSES: Public comments and requests for coverage should be sent to:
Environmental Protection Agency, Region 9, Attn: CWA Standards and
Permits Office, WTR-5, 75 Hawthorne Street, San Francisco, California
94105-3901.
FOR FURTHER INFORMATION CONTACT: Eugene Bromley, EPA, at the address
listed above or telephone (415) 744-1906. Copies of the proposed
general permit and fact sheet will be provided upon request and are
also available at EPA, Region 9's website at http://www.epa.gov/region09/water/.
SUPPLEMENTARY INFORMATION: State Consistency Review: This document will
also serve as Public Notice of the intent of the State of California,
California Coastal Commission (``CCC''), to review this action for
consistency with the approved California Coastal Management Program
(``CCMP''). Persons wishing to comment on the issue of consistency with
the CCMP should submit written comments to the California Coastal
Commission, 45 Fremont Street, Suite 2000, San Francisco, CA 94105-
2219. Comments should be addressed to the attention of California
Coastal Management Program Consistency Review. Comments may be
submitted to the CCC from the date of publication of this notice in the
Federal Register until the CCC has conducted its review of this action
(which will occur as soon as possible after close of the 45-day comment
period announced by this notice, but in no event later than 180 days
after commencement of the CCC's review).
Administrative Record: The proposed NPDES general permit and other
related documents in the administrative record are on file and may be
inspected any time between 8:30 a.m. and 4:00 p.m., Monday through
Friday, excluding legal holidays, at the addresses shown below. U.S.
EPA, Region 9, CWA Standards and Permits Office (WTR-5), 75 Hawthorne
Street, San Francisco, CA 94105-3901.
Summary of Terms and Conditions of Proposed General Permit
A. Facility Coverage. The proposed general permit would apply to
existing development and production platforms, and new exploratory
drilling operations in the Offshore Subcategory of the Oil and Gas
Extraction Point Source Category, located in and discharging to 83
specified lease blocks in Federal waters on the Pacific Outer
Continental Shelf (``OCS''), offshore Southern California. There are
currently 22 existing production platforms on the Pacific OCS. New
source production platforms would not be covered by the proposed permit
and would require individual permits.
All dischargers requesting coverage under the permit would be
required to submit a Notice of Intent (``NOI''). Information to be
provided includes the legal name and address of the owner or operator,
the facility name and location, type of facility and discharges, lease
block, previous permits, and the receiving water. EPA may require any
person authorized by the general permit to apply for and/or obtain an
individual NPDES permit if the terms of the general permit are
determined to not be appropriate for a particular facility.
B. Types of Discharges Authorized. The proposed general permit
would authorize the following discharges (subject to the terms and
conditions of the permit) in all areas of coverage: drilling fluids and
drill cuttings; produced water; well treatment, completion and workover
fluids; deck drainage; domestic and sanitary waste; blowout preventer
fluid; desalination unit discharge; fire control system test water;
non-contact cooling water; ballast and storage displacement water;
bilge water; boiler blowdown; test fluids; diatomaceous earth filter
media; bulk transfer material overflow; uncontaminated freshwater;
water flooding discharges; laboratory wastes; excess cement slurry;
hydrotest water; and hydrogen sulfide gas processing waste water.
C. Effluent Limitations. The proposed general permit includes
effluent limitations based on Best Conventional Pollutant Control
Technology (``BCT'') for the control of conventional pollutants, Best
Available Treatment Economically Achievable (``BAT'') for the control
of toxic and nonconventional pollutants and (3) additional effluent
limitations based on section 403(c) (ocean discharge requirements) of
the CWA. BAT and BCT effluent limitations guidelines were promulgated
by EPA on March 4, 1993 (58 FR 12454) for the Offshore Subcategory of
the Oil and Gas Extraction Point Source Category. These BAT/BCT
effluent limitations have been included in the proposed permit, along
with certain additional effluent limitations based on section 403(c) of
the CWA. In addition, monitoring requirements have been included to
ensure compliance with the effluent limitations.
EPA currently lacks sufficient information to establish appropriate
final effluent limitations for certain pollutants (primarily heavy
metals and toxic organics) in produced water discharges. For these
pollutants, the proposed permit would require monitoring to evaluate
whether the discharges have a reasonable potential to cause or
contribute to exceedances of marine water quality criteria. Based on
the results of the monitoring (which would be available approximately
2\1/2\ years into the term of the permit), the permit may be reopened
to include additional effluent limitations.
In view of the variety of pollutants in produced water, the
proposed permit also requires chronic whole effluent toxicity (``WET'')
monitoring to measure the aggregate toxic effects of the pollutants. If
toxicity is detected, accelerated testing would be required by the
permit, and if the toxicity persists, a Toxicity Reduction Evaluation
(``TRE'') would be required along with a Toxicity Identification
Evaluation (``TIE'') to identify the specific chemical(s) causing the
toxicity.
D. Ocean Discharge Criteria Evaluation (ODCE). Section 403 of the
CWA requires that an NPDES permit for a discharge into marine waters
located seaward of the inner boundary of the territorial seas be issued
in accordance with guidelines for determining the potential degradation
of the marine environment. Guidelines for evaluating proposed
discharges are found at 40 CFR part 125, subpart M (Ocean Discharge
Criteria regulations).
An ODCE has been prepared entitled ``Ocean Discharge Criteria
Evaluation South and Central California for NPDES
[[Page 45065]]
Permit No. CAG280000'' dated January 2000, which evaluates the
discharges which would be authorized by the proposed general permit.
After review of the ODCE, and other available data and studies in the
administrative record for the permit, EPA has tentatively concluded
that the proposed discharges would not cause unreasonable degradation
of the marine environment. However, this conclusion will be re-
evaluated based on comments received on the proposed permit.
E. Endangered Species Act. The area covered by the proposed permit
potentially includes species under the jurisdiction of both the U.S.
Fish and Wildlife Service (``USFWS'') and the National Marine Fisheries
Service (``NMFS''). As such, EPA prepared separate BAs to assess the
potential impacts of the permit reissuance on listed species under the
jurisdiction of the USFWS and NMFS. Both BAs concluded that there would
be no effect on listed species. EPA is providing copies of the draft
permit and fact sheet along with the appropriate BA to the Long Beach
office of the NMFS and the Ventura Field Office of the USFWS for review
and comment on EPA's conclusions concerning the effects of the proposed
discharges on listed species.
F. Coastal Zone Management Act. The Coastal Zone Management Act
(``CZMA'') provides that a Federal license or permit for activities
affecting the coastal zone of a state may not be granted until a state
with an approved Coastal Management Plan (``CMP'') concurs with a
certification that the activities authorized by the permit are
consistent with the CZP (CZMA section 307(c)(3)(A)). In California, the
CZMA authority is the CCC. In this case, EPA will be preparing and
submitting to the CCC the required certification. Since the necessary
consistency concurrence has not been obtained, the proposed permit
provides that the permit will not become effective until the required
concurrence of the CCC is obtained.
G. Magnuson-Stevens Fishery Conservation and Management Act. In
accordance with the requirements of the 1996 amendments to the
Magnuson-Stevens Fishery Conservation and Management Act, EPA prepared
an assessment of the effects of the proposed discharges on EFH in the
area covered by the permit. The assessment concludes that while there
may be effects on EFH from certain discharges near an outfall, these
effects should be minor overall given the small area which may be
affected relative to the size of the EFH off the Pacific Coast, and the
mitigation provided by the various effluent limitations which are
proposed for the permit. EPA has provided a copy of the assessment to
NMFS to initiate a consultation. Upon completion of the consultation,
NMFS will provide conservation recommendations to EPA based on its
review of the EFH assessment. Although NMFS's recommendations are non-
binding on Federal agencies, the final permit may nevertheless include
additional or modified requirements based on NMFS's review.
H. Permit Effective Date and Appeal Procedures. To ensure smooth
transition and allow current operators time to apply and prepare for
the new requirements, the effective date of the general permit is
proposed as the first day of the month that begins at least 45 days
after the CCC concurs with the certification provided by EPA that the
discharges authorized by the permit are consistent with the approved
California CMP.
Within 120 days following notice of EPA's final decision for the
general permit under 40 CFR 124.15, any interested person may appeal
the permit in the Federal Court of Appeals in accordance with section
509(b)(1) of the CWA. Persons affected by a general permit may not
challenge the conditions of a general permit as a right in further
Agency proceedings. They may instead either challenge the general
permit in court, or apply for an individual permit as specified at 40
CFR 122.21 (and authorized at 40 CFR 122.28), and then petition the
Environmental Appeals Board to review any condition of the individual
permit (40 CFR 124.19 as modified on May 15, 2000, 65 FR 30886).
I. Paperwork Reduction Act. The information collection required by
this permit has been approved by Office of Management and Budget
(``OMB'') under the provisions of the Paperwork Reduction Act, 44
U.S.C. 3501 et seq., in submission made for the NPDES permit program
and assigned OMB control numbers 2040-0086 (NPDES permit application)
and 2040-0004 (discharge monitoring reports).
J. Economic Impact (Executive Order 12866). Under Executive Order
12866 (58 FR 51735 (Oct. 4, 1993)), the Agency must determine whether
the regulatory action is ``significant'' and therefore subject to OMB
review and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may have an annual effect on the economy of $100 million or
more or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities; create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency; materially alter the
budgetary impact of entitlements, grants, user fees, or loan programs
or the rights and obligations of recipients thereof; or raise novel
legal or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the Executive Order.
EPA has determined that this proposed general permit is not a
``significant regulatory action'' under the terms of Executive Order
12866.
K. Unfunded Mandates Reform Act. Section 201 of the Unfunded
Mandates Reform Act (``UMRA''), Public Law 104-4, generally requires
Federal agencies to assess the effects of their ``regulatory actions''
on State, local, and tribal governments and the private sector. UMRA
uses the term ``regulatory actions'' to refer to regulations. (See,
e.g., UMRA section 201, ``Each agency shall * * * assess the effects of
Federal regulatory actions * * * (other than to the extent that such
regulations incorporate requirements specifically set forth in law)'').
UMRA section 102 defines ``regulation'' by reference to section 658 of
Title 2 of the U.S. Code, which in turn defines ``regulation'' and
``rule'' by reference to section 601(2) of the Regulatory Flexibility
Act (``RFA''). That section of the RFA defines ``rule'' as ``any rule
for which the agency publishes a notice of proposed rulemaking pursuant
to section 553(b) of [the Administrative Procedure Act (``APA'')], or
any other law. * * *''
As discussed in the RFA section of this document, NPDES general
permits are not ``rules'' under the APA and thus not subject to the APA
requirement to publish a notice of proposed rulemaking. NPDES general
permits are not subject to such a requirement under the CWA. While EPA
publishes a notice to solicit public comment on draft general permits,
it does so pursuant to the CWA section 402(a) requirement to provide
``an opportunity for a hearing.'' Thus, NPDES general permits are not
``rules'' for RFA or UMRA purposes.
EPA has determined that the proposed general permit does not
contain a Federal requirement that may result in expenditures of $100
million or more for State, local and tribal governments, in the
aggregate, or the private sector in any one year.
EPA also believes that the proposed general permit will not
significantly nor uniquely affect small governments. For UMRA purposes,
``small governments''
[[Page 45066]]
is defined by reference to the definition of ``small governmental
jurisdiction'' under the RFA. (See UMRA section 102(1), referencing 2
U.S.C. 658, which references section 601(5) of the RFA.) ``Small
governmental jurisdiction'' means governments of cities, counties,
towns, etc., with a population of less than 50,000, unless the agency
establishes an alternative definition.
The proposed general permit also will not uniquely affect small
governments because compliance with the permit conditions affects small
governments in the same manner as any other entities seeking coverage
under the proposed general permit.
L. Regulatory Flexibility Act. Under the Regulatory Flexibility
Act, 5 U.S.C. 601 et seq., EPA is required to prepare a Regulatory
Flexibility Analysis to assess the impact of rules on small entities.
Under 5 U.S.C. 605(b), no Regulatory Flexibility Analysis is required
where the head of the Agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
EPA takes the position that NPDES general permits are not subject
to rulemaking requirements under APA section 553 or any other law. The
requirements of APA section 553 apply only to the issuance of
``rules,'' which the APA defines in a manner that excludes permits. See
APA section 551(4), (6) and (8). The CWA also does not require
publication of a general notice of proposed rulemaking for general
permits. EPA publishes draft general NPDES permits for public comment
in the Federal Register in order to meet the applicable CWA procedural
requirement to provide ``an opportunity for a hearing.'' CWA section
402(a), 33 U.S.C. 1342(a).
M. Signature. Accordingly, I hereby find consistent with the
provisions of the RFA, that this proposed general permit will not have
a significant impact on a substantial number of small entities.
Authority: CWA, 33 U.S.C. 1251 et seq.
Dated: July 5, 2000.
Alexis Strauss,
Acting Regional Administrator, Region 9.
[FR Doc. 00-17750 Filed 7-19-00; 8:45 am]
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