[Federal Register Volume 69, Number 245 (Wednesday, December 22, 2004)]
[Notices]
[Pages 76740-76743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27987]
[[Page 76740]]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-7851-2]
Final National Pollutant Discharge Elimination System (NPDES)
General Permit for the Offshore Subcategory of the Oil and Gas
Extraction Point Source Category for Operations Located in the Eastern
Portion of Outer Continental Shelf (OCS) of the Gulf of Mexico
(GMG460000) and Record of Decision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final Issuance of NPDES General Permit.
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SUMMARY: On December 9, 2004, the Regional Administrator of EPA Region
4 (the ``Region'') reissued the National Pollutant Discharge
Elimination System (NPDES) general permit for operators located in the
Outer Continental Shelf (OCS) of the eastern portion of the Gulf of
Mexico, General Permit No. GMG460000, (formerly NPDES Permit no.
GMG280000) for discharges in the Offshore Subcategory of the Oil and
Gas Extraction Point Source Category cited at 40 Code of Federal
Regulations (CFR) Part 435, subpart A, which includes guidelines for
the discharges of non-aqueous drilling fluids (i.e., synthetic-based
drilling fluids) promulgated on January 22, 2001. This permit, which
shall become effective on January 1, 2005, and will expire on December
31, 2009, 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 200 meter
contour depth outer boundary of the territorial seas offshore Florida
and Alabama in the Eastern Planning Area and facilities in Mobile and
Visoca Knoll lease blocks located seaward of the outer boundary of the
territorial seas offshore Alabama and Mississippi in the Central
Planning Area. Individual NPDES permits will be issued for operating
facilities on lease blocks traversed by and shoreward of the 200 meter
depth in the Eastern Planning area. The previous Region 4 general
permit for Offshore Oil and Gas activities was published at 63 Federal
Register (FR) 55718 on October 16, 1998, revised on March 14, 2001, at
63 FR 14988, and expired on October 31, 2003.
The proposed NPDES general permit was published at 69 FR 1743 on
January 12, 2004. Three public hearings pertaining to the proposed
permit, draft Supplemental Environmental Impact Statement (SEIS), and
draft Ocean Discharge Criteria Evaluation (ODCE) document [i.e., Clean
Water Act (CWA) Section 403 Determination] were held in the Gulf Coast
area during March 16-18, 2004, and the public comment period for these
documents ended on April 20, 2004.
This notice constitutes the Agency's Record of Decision in
accordance with the Council on Environmental Quality regulations at 40
CFR 1505.2 and EPA regulations at 40 CFR 6.606. Draft and Final SEISs
were issued February 13, 2004 and August 27, 2004, respectively, that
considered three permitting options available to EPA. Alternative A was
the issuance of a general permit to include limits and permit
conditions addressing the use of non-aqueous-based drilling fluids
[which include synthetic-based drilling fluids (SBFs)] for existing and
new sources in areas in general permitting coverage area. Alternative B
was the issuance of a general permit that is unchanged from the
previous general permit (1998), which did not include permit limits
and/or conditions pertaining to the use of SBFs, and Alternative C was
no issuance of any general permit. The SEIS process updated information
contained in the Final EIS associated with the previous NPDES general
permit for Offshore Oil and Gas activities in Region 4.
The final SEIS (EPA 904-9-04-004, dated July 2004) addressed the
potential impacts to the environment from the use of SBFs,
supplementing the final EIS completed in 1998. Alternative A, EPA's
preferred alternative, has been found to be adequately protective of
the offshore marine environment. In the process of reaching this
finding, the SEIS considered available mitigation for avoiding and
minimizing the adverse impacts to federal OCS waters and the coastal
waters of the adjoining states. The proposed general permit contains
numerous protective specifications which have been evaluated in the
SEIS. The effluent discharge limitations, the SBF toxicity and
biodegradation rate testing requirements, and the permit conditions
requiring seabed surveys and agency coordination, are all deemed
necessary mitigation to ensure the protection of the environment.
The general permit is also protective of state coastal waters. To
comply with the federal consistency provisions of the Coastal Zone
Management Act (CZMA), the permit includes a condition whereby an
applicant for permit coverage must provide evidence that the proposed
oil and gas extraction project has received the applicable state
determination of consistency prior to EPA granting coverage.
EPA also considered in the SEIS the various applicable laws and
regulations administered by EPA or other agencies which provide
additional direct or indirect environmental mitigation. The Minerals
Management Service (MMS) has the broadest regulatory mandate for OCS
oil and gas extraction activities. The environmental mitigation
provided by the general permit, as issued, will strengthen the
mitigation administered by MMS and other federal environmental
agencies.
The public review of the SEIS and proposed general permit did not
reveal any additional significant adverse impacts not addressed in the
SEIS. While the present knowledge of the fate and effects of SBF is
considered adequate for regulatory purposes, understanding of the long
term impacts of the use of SBF will come from ongoing study. Should
new, pertinent technical information become available from these
studies, that data would be fully evaluated by EPA relative to the
present limitations and conditions of the general permit. To accomplish
this, a re-opener condition'' is included in the permit.
General permit coverage for all permittees under the previous
general permit (NPDES Permit No. GMG280000) will cease 30 days from the
effective date of this permit. In order to obtain coverage under the
reissued general permit, all permittees with existing general coverages
must submit to EPA a new Notice of Intent (NOI) no later than 30 days
after the effective date. All facility owners of newly acquired leases,
on which a discharge will take place before the expiration date of the
reissued general permit (operating facilities) within the area covered
by the general permit, must file a written NOI for existing and for new
sources prior to discharge. Non-operational facilities, i.e., those on
which no production and 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 once a new MMS-approved Exploration Plan
(EP), Development Production Plan (DPP) or Development Operational
Coordination Document (DOCD) (or proof that MMS previously approved an
EP, DPP or DOCD) is submitted to EPA. Otherwise, coverage under the
previous general permit will terminate on the effective date of the
reissued general permit. For all applicants, the NOI must contain the
information set forth in 40 CFR 122.28(b)(2)(ii) and Part I.A.4 of the
reissued NPDES general permit.
In accordance with Oil and Gas Extraction Point Source Category,
Offshore Subcategory Effluent
[[Page 76741]]
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 made a draft SEIS available concurrently with the
draft general permit for review during the public comment period that
addressed 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 4.1 of the final SEIS (EPA 904/9-04-004), the
Regional Administrator has determined that the discharges authorized
under the reissued general permit would not pose environmental harm
within the general permit coverage area.
The final NPDES general permit includes, best conventional
pollutant control technology (BCT), and best available technology
economically achievable (BAT) limitations for existing sources and 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). Other permit
conditions are included based on the Best Professional Judgement of the
permit writer.
DATES: The NPDES General Permit shall become effective on January 1,
2005, and shall expire at midnight on December 1, 2009. The final
permit, the amendment to the fact sheet (which includes responses to
comments on the proposed general permit), an electronic version of the
EPA-Region 4 approved, optional Discharge Monitoring Report, and the
final ODCE document can be downloaded from the following Internet Web
site: http://www.epa.gov/region4/water/permits/.
For Administrative Record and Further Information: Contact Ms.
Karrie-Jo Robinson-Shell, Environmental Engineer by phone at (404) 562-
9308, by e-mail at [email protected], or at the following mail
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, Attention: Ms. Karrie-Jo Robinson-
Shell.
SUPPLEMENTARY INFORMATION:
I. Procedures for Reaching a Final Permit Decision
EPA prepared draft and final SEISs that evaluated the potential
impacts of the proposed Federal license (issuance of the general
permit) within the context of a comprehensive NPDES permitting strategy
for the Region 4 jurisdictional area of the Gulf of Mexico. The process
was conducted in accordance with the regulations implementing the
National Environmental Policy Act (NEPA). The findings of the final
SEIS, the ODCE (i.e., CWA Section 403(c) Evaluation) and public
comments were used in reaching the decision to reissue the final NPDES
general permit with the limitations and conditions, therein. Important
interagency coordination occurred between the EPA, MMS, The National
Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service
(USFWS). A significant amount of information and assistance was
obtained from MMS. Since EPA will be conducting individual permitting
outside the general permit coverage area of new source development/
production projects, it intends to coordinate its efforts with MMS on
the environmental reviews required of each agency by National
Environmental Policy Act (NEPA).
EPA has considered all written comments submitted on the proposed
general permit, draft SEIS, draft ODCE document, as well as all
comments received during the three public hearings. A summary of the
comments on the proposed permit with EPA responses to these comments,
the final general permit, the fact sheet, amendment to the fact sheet,
and final ODCE document can be downloaded from the following Internet
Web site: http://www.epa.gov/region4/water/permits/. Copies of these
documents, which are made available to the public, state agencies and
local governments as part of Region 4's administrative record, can also
be obtained by contacting: Ms. Karrie-Jo Robinson-Shell, as directed
above.
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 the reissued general permit is effective as of the
postmarked date of all NOIs deemed by EPA to be complete. EPA will
notify applicants within 21 days of the postmarked date of the NOI
letter to assign an NPDES general permit number or to identify any
deficiencies with the NOI.
III. Exclusion of Non-Operational Leases
This permit does not apply to non-operational leases, i.e., those
on which no production and 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 facilities, and the general permit will
not cover such leases. Non-operational facilities 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 facilities until and unless the
permittee has obtained coverage under the new general permit or an
individual permit. EPA will not process an NOI or individual permit
application for non-operational until such time that documentation is
submitted to EPA that MMS previously approved an EP, DPP or DOCD or a
new EP, DPP or DOCD.
IV. State Water Quality Certification
Because state waters are not included in the area covered by the
general permit, its effluent limitations and monitoring requirements
are not subject to state water quality certification under CWA Section
401.
V. State Consistency Determination
Region 4 is required under 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 was sent to each affected State, along with copies
of the proposed NPDES general permit, fact sheet, draft ODCE, and draft
SEIS. Each state concurred with EPA's finding of consistency.
VI. Administrative Record
All relevant documents pertaining to this permit issuance are on
file and may be inspected any time between 8:15 a.m. and 4:30 p.m.,
Monday through Friday
[[Page 76742]]
at: 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, Attention: Ms. Karrie-Jo Robinson-Shell.
Copies may also be obtained by written request to this same address.
Electronic copies of the final NPDES general permit, the fact sheet,
amendment to the fact sheet (which includes EPA's response to
comments), and final ODCE may be downloaded at http://www.epa.gov/region4/water/permits.
VII. Executive Order 12866
Under Executive Order 12866 [58 FR 51735 (October 4, 1993)], the
Agency must determine whether the regulatory action is ``significant,''
and therefore subject to review by the Office of Management and Budget
(OMB) 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.
VIII. 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 and not to orders, exempting by definition
permits.
IX. Unfunded Mandates Reform Act
Section 201 of the Unfunded Mandates Reform Act (UMRA), 2 U.S.C.
1501, et seq, 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)'' (emphasis added)). UMRA section 201
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 *
* * ''
NPDES general permits are not ``rules'' under APA and thus not
subject to the APA requirement to publish a notice of proposed
rulemaking. 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.''
Thus, NPDES general permits are not ``rules'' for RFA or UMRA purposes.
EPA has determined that the proposed permit reissuance would 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.
The Agency also believes that the permit would not significantly,
nor uniquely, affect ``small governments''. For UMRA purposes, ``small
governments'' is defined by reference to the definition of ``small
governmental jurisdiction'' under 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 permit also would 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 permit.
Additionally, EPA does not expect small governments to operate
facilities authorized to discharge by this permit.
X. 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 (NPDES Permit
No. 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.
XI. Other Legal Requirements
Oil Spill Requirements
Section 311 of the Clean Water Act prohibits the discharge of oil
and hazardous materials in harmful quantities. Routine discharges that
are in compliance with NPDES permits are excluded from the provisions
of section 311. However, the permits do not
[[Page 76743]]
preclude the institution of legal action or relieve permittees from any
responsibilities, liabilities, or penalties for other, unauthorized
discharges of oil and hazardous materials that are covered by section
311 of the Act.
Endangered Species Act
The Endangered Species Act (ESA) imposes important requirements
upon, federal agencies regarding endangered species of fish, wildlife,
or plants that have been designated as critical. Its implementing
regulations (50 CFR Part 402) require the Regional Administrator to
ensure, in consultation with the Secretaries of Interior and Commerce,
that any action authorized, funded or carried out by EPA is not likely
to jeopardize the continued existence of any endangered or threatened
species or adversely affect its critical habitat [40 CFR 122.49(c)].
Implementing regulations for the ESA establish a process by which
agencies consult with one another to ensure that issues and concerns of
both the NMFS and the USFWS collectively are addressed. The NMFS and
USFWS have responded to EPA's initiation of the coordination process
under the regulations set forth by section 7 of the Endangered Species
Act. The species identified by NMFS and USFWS as threatened or
endangered species within the permit coverage area have been assessed
for potential effects from the activities covered by the proposed
permit in a biological assessment incorporated in the draft SEIS. This
biological assessment was submitted to the NMFS and USFWS along with
the proposed permit for consistency review and concurrence on the
Region's finding of no adverse effect. This coordination is appended to
the final EIS. Concurrence from the USFWS and the NMFS was received on
October 10, 2004, and November 16, 2004, respectively. Both agencies
stated that EPA's proposed action to reissue the general permit is not
likely to affect resources protected under the ESA.
The NMFS, in association with the Gulf of Mexico Fishery Management
Council, administers the Essential Fish Habitat (EFH) requirements
established by the Magnuson-Stevens Fishery Conservation and Management
Act. Federal agencies are required to consult with NMFS on any activity
that may adversely effect fisheries. EFH coordination with NMFS
occurred in conjunction with the SEIS which contains the EFH assessment
information. EPA requested comments from NMFS on the EFH assessment and
finding of minimal effects. The NMFS offered comments which included
recommendations for minimizing potential adverse impacts of the
discharges. Comments were fully considered and responded to by EPA in
the FSEIS.
Ocean Discharge Criteria Evaluation
For discharges into waters located seaward of the inner boundary of
the territorial seas, the CWA Section 403 requires that NPDES permits
consider guidelines for determining the potential degradation of the
marine environment. The guidelines, or Ocean Discharge Criteria (40 CFR
Part 125, subpart M), are intended to ``prevent unreasonable
degradation of the marine environment and to authorize imposition of
effluent limitations, including a prohibition of discharge, if
necessary, to ensure this goal'' (45 FR 65942, October 3, 1980).
A final ODCE determination of no unreasonable degradation has been
made by Region 4 based comments and information submitted during the
public comment period for the proposed general permit. The potential
effects of discharges under the proposed permit limitations and
conditions are assessed in this document available from Region 4. The
ODCE states that, based on the available information, the permit
limitations are sufficient to determine that no unreasonable
degradation should result from the permitted discharges.
Marine Protection, Research, and Sanctuaries Act
No marine sanctuaries as designated by the Marine Protection,
Research, and Sanctuaries Act exist in the area to which the OCS permit
applies.
Regulatory Flexibility Act
After review of the facts presented above, I hereby certify,
pursuant to the provisions of 5 U.S.C. 605(b), that these proposed
general permits will not have a significant impact on a substantial
number of small entities. This certification is based on the fact that
the vast majority of the parties regulated by this permit have greater
than 500 employees and are not classified as small businesses under the
Small Business Administration regulations established at 49 FR 5024 et
seq. (February 9, 1984). For those operators having fewer than 500
employees, this permit issuance will not have significant economic
impact. These facilities are classified as Major Group 13--Oil and Gas
Extraction SIC Crude Petroleum and Natural Gas.
James D. Giattina,
Director, Water Management Division.
[FR Doc. 04-27987 Filed 12-21-04; 8:45 am]
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