[Federal Register Volume 69, Number 7 (Monday, January 12, 2004)]
[Notices]
[Pages 1743-1746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-376]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-7608-2]
Notice of Draft National Pollutant Discharge Elimination System
(NPDES) General Permit for the Eastern Portion of Outer Continental
Shelf (OCS) of the Gulf of Mexico (GMG280000)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Proposed Reissuance of NPDES General Permit, Notice
to States of Mississippi, Alabama and Florida for Consistency Review
with approved Coastal Management Programs.
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SUMMARY: The Regional Administrator of EPA Region 4 (the ``Region'') is
today proposing to reissue the National Pollutant Discharge Elimination
System (NPDES) general permit for the Outer Continental Shelf (OCS) of
the Gulf of Mexico (General Permit No. GMG28A000) for discharges in the
Offshore Subcategory of the Oil and Gas Extraction Point Source
Category (40 Code of Federal Regulations (CFR) part 435, subpart A).
DATES: Comments on this proposed action must be received by March 12,
2004.
ADDRESSES: Persons wishing to comment upon or object to any aspects of
this permit reissuance are invited to
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submit same in writing within sixty (60) days of this notice to the
Water Management Division, U.S. EPA--Region 4, Sam Nunn Atlanta Federal
Center, 61 Forsyth Street, SW., Atlanta, GA 30303-8960, Attention: Ms.
Karrie-Jo Robinson-Shell. Public hearings will be scheduled and held in
Ocean Springs, MS, Gulf Shores, AL and Pensacola, FL, in March 2004;
see section VI. Public notices announcing these hearings will be
published in local newspapers at least 30 days prior to the date of the
first hearing. Persons wishing to receive advance notification of these
hearings directly are asked to submit that request to Ms. Ann Brown at
the address above or via e-mail at: [email protected].
FOR FURTHER INFORMATION CONTACT: Ms. Karrie-Jo Robinson-Shell, Offshore
Oil and Gas Contact, at telephone (404) 562-9308 or at the following
address: Water Management Division, NPDES and Biosolids Permits
Section, U.S. EPA, Region 4, Sam Nunn Atlanta Federal Center, 61
Forsyth Street, SW., Atlanta, GA 30303-8960.
SUPPLEMENTARY INFORMATION: The existing permit, issued by EPA Region 4
and published at 63 FR 55718 on October 16, 1998, and revised on March
14, 2001 at 63 FR 14988, authorizes discharges from exploration,
development, and production facilities located in and discharging, to
all Federal waters of the eastern portion of the Gulf of Mexico seaward
of the outer boundary of the territorial seas. Today's draft NPDES
permit covers existing and new source facilities in the Eastern
Planning Area with operations located on Federal leases occurring in
water depths seaward of 200 meters, occurring offshore the coasts of
Alabama and Florida. The western boundary of the coverage area is
demarcated by Mobile and Visoca Knoll lease blocks located seaward of
the outer boundary of the territorial seas from the coasts of
Mississippi and Alabama in the Central Planning Area (CPA).
In order to obtain coverage under the reissued general permit, all
permittees covered under the previous NPDES general permit must have
submitted a timely and complete notice of intent (NOI) no later than
October 31, 2003 (the expiration date of the previous NPDES general
permit). All facility owners of newly acquired leases, on which a
discharge will take place before the effective date of the reissued
general permit (operating facilities) in the water depths seaward of
200 meters, must file a written NOI to be covered by the new general
permit for existing and new sources no later than 14 days prior to
discharge. Non-operational leases, i.e., those on which no discharges
have taken place in the two (2) years prior to the effective date of
the reissued general permit, are only eligible for coverage under the
reissued general permit once the Exploration Plan Document or the
Development Operational Coordination Document are submitted to EPA.
Otherwise, their coverage under the previous general permit will
terminate on the effective date of the reissued general permit. No NOIs
will be accepted on non-operational or newly acquired leases until such
time as an exploration plan or development production plan has been
prepared for submission to Minerals Management Service (MMS). The NOI
must contain the information set forth in 40 CFR 122.28(b)(2)(ii) and
part A.4 of the NPDES permit.
In accordance with Oil and Gas Extraction Point Source Category,
Offshore Subcategory Effluent Guidelines and New Source Performance
Standards (NSPS) published at 58 FR 12454 on March 4, 1993, and amended
at 66 FR 6850 on January 22, 2001, EPA Region 4 is making a draft
Supplemental Environmental Impact Statement (SEIS) available for review
at least 30 days prior to the end of the public comment period for this
general permit. (A separate Federal Register Notice announcing this
document is forthcoming.) The draft SEIS addresses potential impacts
from facilities that may be defined as new sources in the context of a
comprehensive offshore permitting strategy. As set forth in section
2.4.2 of the final Environmental Impact Statement (EIS) (EPA 904/9-98-
003), which was prepared for the previous NPDES general permit, the
Regional Administrator has determined that the area shoreward of the
200 meter depth includes extensive live bottom and other valuable
marine habitats and includes areas of biological concern, which should
be subject to more stringent review based on the ocean discharge
criteria under section 403 of the Clean Water Act (CWA or the Act) and
findings of the draft SEIS. Accordingly, individual permits will be
issued for operating facilities on lease blocks traversed by and
shoreward of the 200 meter water depth.
As proposed, this draft NPDES general permit includes, best
conventional pollutant control technology (BCT), and best available
technology economically achievable (BAT) limitations for existing
sources and new source performance standards (NSPS) limitations for new
sources as promulgated in the effluent guidelines for the offshore
subcategory at 58 FR 12454 and amended at 66 FR 6850 (March 4, 1993 and
January 22, 2001, respectively).
I. Procedures For Reaching a Final Permit Decision
Pursuant to 40 CFR 124.13, any person who believes any condition of
the permit is inappropriate must raise all reasonably ascertainable
issues and submit all reasonably available arguments in full,
supporting their position, by the close of the comment period. All
comments on the draft NPDES general permit and the draft SEIS received
within the 60-day comment period will be considered in the formulation
of final determination regarding the permit reissuance. In addition,
public hearings will be held in coastal Mississippi, Alabama and
Florida communities where the public may have an interest in the permit
issuance action.
After consideration of all written comments, comments taken at the
public hearings and the requirements and policies in the CWA and
appropriate regulations, the EPA Regional Administrator will make a
determination regarding the permit reissuance. If the determination
results in a permit that is substantially unchanged from the draft
permit announced by this notice, the Regional Administrator will so
notify all persons submitting written comments. If the determination
results in a permit that is substantially changed, the Regional
Administrator will issue a public notice indicating the revised
determination.
A formal hearing is available to challenge any NPDES permit issued
according to the regulations at 40 CFR 124.15, except for a general
permit as cited at 40 CFR 124.71. 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 as authorized at 40 CFR 122.28, and then request a
formal hearing on the issuance or denial of an individual permit.
Additional information regarding these procedures is available by
contacting Mr. Kevin Smith, Associate Regional Counsel Office of
Environmental Accountability, at (404) 562-9525.
II. Procedures For Obtaining General Permit Coverage
Notice of Intent requirements for obtaining coverage for operating
facilities are stated in part I, section A.4 of the general permit.
Coverage under
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the reissued general permit is effective upon receipt of notification
of coverage with an assignment of an NPDES general permit number from
the EPA Region 4, Director of the Water Management Division. EPA will
act on the NOI within a reasonable period of time.
III. Exclusion of Non-Operational Leases
This permit does not apply to non-operational leases, i.e., those
on which no discharge has taken place in the two (2) years prior to the
effective date of the reissued general permit. EPA will not accept NOIs
for such leases, and the general permit will not cover such leases.
Non-operational leases will lose coverage under the previous general
permit on the effective date of the reissued general permit. No
subsequent exploration, development or production activities may take
place on these leases until and unless the lessee has obtained coverage
under the new general permit or an individual permit. EPA will not
accept an NOI or individual permit application for non-operational or
new acquired leases until such time as an Exploration Plan Document or
the Development Operational Coordination Document has been prepared and
submitted to MMS.
IV. State Water Quality Certification
Because state waters are not included in the area covered by the
OCS general permit, its effluent limitations and monitoring
requirements are not subject to state water quality certification under
CWA Section 401. However, the states of Alabama, Florida and
Mississippi have been provided a copy of this draft general permit to
review and submit comments. A copy has also been provided to EPA Region
6 for their review.
V. State Consistency Determination
This notice will also serve as Region 4's requirement under the
Coastal Zone Management Act (CZMA) to provide all necessary information
for the States of Mississippi, Alabama and Florida to review this
action for consistency with their approved Coastal Management Programs.
A copy of the consistency determination on the proposed activities is
being sent to each affected State, along with draft copies of the draft
NPDES general permit, Fact Sheet, preliminary Ocean Discharge Criteria
Evaluation, a CWA Section 403(c) determination, and draft SEIS. Other
relevant information is available upon request from each State for
their review. Comments regarding State Consistency are invited in
writing within 60 days of this notice to the Water Management Division,
U.S. Environmental Protection Agency, Region 4, Sam Nunn Atlanta
Federal Center, 61 Forsyth Street, SW., Atlanta, GA 30303-8960,
Attention: Ms. Karrie-Jo Robinson-Shell.
VI. Public Comment Period and Public Hearings
The public comment period for the draft NPDES permit will begin on
the date of publication of this notice and end 60 days later. Three (3)
public hearings have been scheduled on this proposed action. The first
hearing is scheduled for Tuesday, March 16, 2004, at 6 p.m in Ocean
Springs, Mississippi at the Gulf Coast Research Laboratory, 703 East
Beach Drive. The second hearing is scheduled for Wednesday, March 17,
2004, at 6 p.m. in Gulf Shores, Alabama at the Marriott Courtyard Gulf
Shores Craft Farms, 3750 Gulf Shores Parkway. The third hearing is
scheduled for Thursday, March 18, 2004, at 6 p.m. in Pensacola, Florida
at the Booker T. Washington High School, 6000 College Parkway. Comments
from persons attending any of the hearings will be received no later
than April 2, 2004 (14 days after the last public hearing). Any person
wishing to participate in a public hearing who needs special
accommodations or any person interested in obtaining directions to
these hearing should contact Ms. Ann Brown, at (404) 562-9288 before
March 1, 2004.
VII. Administrative Record
The draft NPDES general permit, fact sheet, preliminary Section
403(c) determination, draft SEIS and other relevant documents are on
file and may be inspected any time between 8:15 a.m. and 4:30 p.m.,
Monday through Friday at the address shown below. Copies of the draft
NPDES general permit, fact sheet, preliminary 403(c) determination,
draft SEIS and other relevant documents may be obtained by writing the
U.S. EPA, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street,
SW., Atlanta, Georgia 30303-8960, Attention: Ms. Karrie-Jo Robinson-
Shell, or by calling (404) 562-9308. In addition, copies of the draft
NPDES general permit and fact sheet may be downloaded at http://www.epa.gov/region4/water/permits.
VIII. Executive Order 12866
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action in ``significant''
and therefore subject to Office of Management and Budget (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: (1) 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; (2) create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order. OMB has exempted review of NPDES general permits under the terms
of Executive Order 12866.
IX. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rule making requirements under the Administrative
Procedures Act (APA) or any other statue, unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small organizations, and small governmental jurisdictions.
Issuance of an NPDES general permit is not subject to rule making
requirements, including the requirement for a general notice of
proposed rule making, under APA section 533 or any other law, and is
thus not subject to the RFA requirements.
The APA defines two broad, mutually exclusive categories of agency
action--``rules'' and ``orders.'' APA section 551(4) defines rule as
``an agency statement of general or particular applicability and future
effect designed to implement, interpret or prescribe law or policy or
describing the organization, procedure, or practice or requirements of
an agency * * *'' APA section 551(6) defines orders as ``a final
disposition * * * of an agency in a matter other than rule making but
including licensing.'' APA section 551(8) defines ``license'' to
``include * * * an agency permit * * *'' The APA thus categorizes a
permit as an order, which by the APA's definition is not a rule.
Section 553 of the APA establishes ``rule making'' requirements. APA
section 551(5) defines ``rule making'' as ``the agency process for
formulating, amending, or repealing a rule.'' By its terms, section 553
applies only to rules
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and not to orders, exempting by definition permits.
X. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their ``regulatory actions'' to refer to regulations. (See,
e.g., UMRA section 401, ``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 2 U.S.C. 658
which in turn defines ``regulation'' and ``rule'' by reference to
section 601(2) of the RFA. That section of the RFA defines ``rule'' as
``any rule for which the agency publishes a notice of proposed rule
making pursuant to section 553(b) of the APA, or any other law.''
As discussed in the RFA section of this notice, NPDES general
permits are not ``rules'' by definition under the APA and thus not
subject to the APA requirement to publish a notice of proposed rule
making. NPDES general permits are also 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.
Therefore, NPDES general permits are not ``rules'' for RFA or UMRA
purposes.
XI. Paperwork Reduction Act
The information collection required by this permit has been
approved by 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 (NPDES Discharge Monitoring Reports (DMRs)).
Since this permit is very similar in reporting and application
requirements and in discharges which are required to be monitored as
the previous Eastern Gulf of Mexico OCS general permit (GMG280000) the
paperwork burdens are expected to be nearly identical. When it issued
the previous OCS general permit, EPA estimated it would take an
affected facility three hours to prepare the request for coverage and
38 hours per year to prepare DMRs. It is estimated that the time
required to prepare the request for coverage and DMRs for the reissued
permit will be approximately the same.
James S. Kutzman,
Acting Director, Water Management Division.
[FR Doc. 04-376 Filed 1-9-04; 8:45 am]
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