[Federal Register Volume 69, Number 183 (Wednesday, September 22, 2004)]
[Notices]
[Pages 56761-56764]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21286]
[[Page 56761]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[FRL-7817-2]
Final 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), Region 9.
ACTION: Notice of final permit issuance.
-----------------------------------------------------------------------
SUMMARY: EPA, Region 9 is today issuing a final general NPDES permit
(permit No. CAG280000) for discharges from offshore oil and gas
exploration, development and production facilities located in Federal
waters off the coast of Southern California. The general permit
establishes effluent limitations, prohibitions, and other conditions
for discharges from platforms that engage in such operations within the
geographic coverage area of the general permit. The general permit
applies to 22 existing development and production platforms as well as
to any new exploratory drilling operations located in and discharging
to specified lease blocks on the Pacific Outer Continental Shelf
offshore Southern California.
EPA is issuing this general permit to replace existing permits for
the 22 platforms, some of which have been in place for many years.
Today's general permit will achieve significant environmental benefits
compared to the existing permits. In particular, the permit
incorporates effluent limitation guidelines promulgated by EPA in 1993
for this industry, which have already been implemented for other
offshore oil and gas platforms in the United States. In addition, the
permit provides for a one-year study which will be used by EPA to
determine whether additional limits are necessary in the future to
ensure compliance with water quality standards.
DATES: The permit is being issued pursuant to 40 CFR 124.15 on
September 22, 2004. The effective date of the permit is December 1,
2004, which is the first day of the month that begins at least 45 days
after the date of the Federal Register notice of final permit issuance.
ADDRESSES: The final 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 p.m., Monday through Friday, excluding legal holidays,
at the following address: U.S. EPA, Region 9, CWA Standards and Permits
Office (WTR-5), 75 Hawthorne Street, San Francisco, CA 94105-3901.
FOR FURTHER INFORMATION CONTACT: Eugene Bromley, EPA, Region 9, CWA
Standards and Permits Office (WTR-5), 75 Hawthorne Street, San
Francisco, California 94105-3901, or telephone (415) 972-3510. Copies
of the final general permit, Addendum to Fact Sheet and the Response to
Public Comments will be provided upon request and are also available at
EPA, Region 9's Web site at http://www.epa.gov/region09/water/.
SUPPLEMENTARY INFORMATION:
A. Proposed General Permit
On July 20, 2000, EPA proposed to issue a general permit for
discharges from oil and gas exploration, development, and production
operations in Federal waters offshore of the State of California. The
proposed permit contained effluent limitations based on EPA's 1993
effluent limitation guidelines for the offshore subcategory of the oil
and gas extraction point source category (40 CFR part 435) as well as
other terms and conditions, including a provision that would require
permittees to sample produced water discharges for purposes of a future
determination whether the discharges had the reasonable potential to
cause or contribute to an exceedance of Federal water quality criteria
(adopted under Clean Water Act section 304(a)) applied 100 meters from
the platform's point of discharge. As required by the Coastal Zone
Management Act (CZMA), EPA submitted a certification to the California
Coastal Commission (CCC) that the general permit was consistent with
the California Coastal Management Plan (CMP) approved by the National
Oceanic and Atmospheric Administration (NOAA) in 1978.
After reviewing the proposal and EPA's consistency determination,
the CCC requested that, for purposes of analyzing samples of produced
water discharges to determine reasonable potential to exceed a water
quality standard, dilution be calculated based on Federal water quality
criteria and California Ocean Plan (COP) objectives (both applied at
the boundary of the 100-meter mixing zone). Additionally, the CCC
requested that EPA revise the scope and timing of the study
requirements in the permit for alternative disposal for certain
discharges and include in the fact sheet a description of a commitment
by EPA regarding third party monitoring. On the condition that EPA made
these changes in the final general permit and fact sheet, the CCC
concurred that the permit was consistent with the CMP.
On December 10, 2003, EPA submitted a revised proposed general
permit to the CCC, along with a certification by EPA that the revised
proposed permit was consistent with the CMP. For produced water
discharges, EPA proposed a revision to the requirement that each
permittee sample produced water discharges for certain, specified
constituents in order to determine whether the discharges cause, have
the reasonable potential to cause, or contribute to an exceedance above
the applicable water quality criteria. For each constituent, EPA
proposed that the facility include a determination of the minimum
dilution limit required for each discharge location to ensure no
reasonable potential to cause or contribute to an exceedance of the
Federal water quality criteria at a point 100 meters from the
platform's point of discharge or the California Ocean Plan (COP)
criteria (adopted by California under Clean Water Act section 303(c))
at the seaward boundary of California's territorial seas. EPA would
then review the results of each facility's sampling, evaluate the
information for the potential to cause an exceedance of the applicable
water quality criteria, and propose any appropriate new limits for the
general permit pursuant to the procedures in 40 CFR part 124. On March
17, 2004, the CCC objected to EPA's consistency certification. On April
8, 2004, EPA proposed a revised general permit consistent with the
December 10, 2003, certification to the CCC.
The CCC objected to EPA's proposed revision of the reasonable
potential study provision and recommended that, after EPA received and
reviewed the results of the study, the permit should be modified to
require produced water discharges to comply with either the COP
criteria or EPA's CWA section 304(a) criteria, whichever was determined
to be more stringent, at a point of compliance located 100 meters from
each platform's point of discharge. In today's action, EPA is issuing
the general permit with the changes requested by the CCC, for the
reasons described in this notice.
B. Final Permit Provisions
EPA proposed the general permit on July 20, 2000 (65 FR 45063), and
solicited public comment from July 20, 2000, through September 5, 2000.
In addition, EPA held a public hearing on the proposed permit on August
23, 2000. On April 8, 2004, EPA proposed certain modifications to the
July 2000 proposed permit and sought public
[[Page 56762]]
comment on such modifications (69 FR 18570). EPA has included
additional relevant documents in the administrative record for this
permit, including responses to comments received on the July 20, 2000,
proposed permit as well as the revisions proposed in April 2004.
1. Reasonable Potential Study/Point of Compliance
EPA is revising the reasonable potential study provisions proposed
in April 2004. Specifically, today's permit requires each permittee to
sample produced water discharges for certain, specified constituents in
order to determine whether the discharges cause, have the reasonable
potential to cause, or contribute to an exceedance above the more
stringent of the Federal and COP criteria, compared at a point of
compliance 100 meters from each facility's point of discharge. For each
constituent, the minimum dilution must be calculated for each discharge
location to ensure no reasonable potential to cause or contribute to a
water quality standard exceedance and submit the results to EPA.
EPA will then review the results of each facility's sampling and
evaluate the information, and following such review, EPA intends to
propose appropriate modifications to the general permit pursuant to the
procedures in 40 CFR part 124 to establish new effluent limitations
based on the review of the study results.\1\ EPA is including this
reasonable potential study point of compliance provision in the general
permit as a consequence of the CCC's March 17, 2004, objection to EPA's
proposed decision to apply the COP criteria at the seaward boundary of
State waters for purposes of the reasonable potential study dilution
calculation.
---------------------------------------------------------------------------
\1\ Part I.A.4 of the final permit provides that the permit may
be modified at any time if new data would have justified different
permit conditions at the time of issuance. Any permit modification
would be conducted in accordance with 40 CFR 122.62 and 122.63 and
40 CFR part 124.
---------------------------------------------------------------------------
EPA will, at the time of permit modification after completion of
the study, consider new information relevant to the provision in the
final general permit for produced water discharges which requires that
each permittee use a point 100 meters from its platform's point of
discharge to determine whether there is reasonable potential to cause
or contribute to exceedances of either EPA or COP criteria. The final
permit provides that EPA will reopen the permit after completion of the
reasonable potential study and will modify the permit to establish
permit conditions based on the outcome of that study. EPA will provide
the public with notice and an opportunity to comment on any such
modification, as required by 40 CFR 124.5. If, as a result of the
study, or for other reasons, there is new information relevant to the
new limits proposed at that time, EPA will consider such information
and determine whether and how the general permit should be modified.
The CZMA prohibits Federal agencies from granting a license or
permit that is subject to the CZMA consistency certification
requirement until the State has concurred with the certification. CZMA
section 307(c)(3). Even though EPA continues to believe the permit
proposed in April 2004 was fully consistent with the enforceable
policies of the CMP, as described in our comments on the CCC Staff
Report of March 2004, the CCC's objection to EPA's consistency
certification effectively prevented EPA from issuing the permit under
CZMA section 307(c)(3). Further, for the reasons described below, EPA
is concerned that issuing the permit under CZMA section 307(c)(1) with
a delayed effective date, as proposed in April 2004, could result in
considerable delay in implementing the new permit. Moreover, issuing
the permit under CZMA section 307(c)(3) is consistent with EPA's long-
standing practice and the NOAA regulations.\2\ As described in more
detail below, EPA is including the requirement requested by the CCC in
order to issue the permit now, make it effective on December 1, 2004,
and thus ensure that the environmental benefits of the new permit are
achieved as soon as possible.
---------------------------------------------------------------------------
\2\ The regulations governing Federal consistency review under
the CZMA provide that general permit programs proposed by Federal
agencies are subject to the regulations governing review of Federal
agency activities, unless a Federal agency chooses to subject its
general permit program to review under the regulations governing
license or permit activities. See 15 CFR 930.31(d).
---------------------------------------------------------------------------
EPA is including this provision in the permit in order to implement
the more stringent permit limits as soon as possible. However, EPA
continues to believe that the permit proposed in April 2004 would be
consistent with the California CMP. EPA recognizes that the Federal
consistency provisions of the CZMA apply to licenses for activities
outside State waters, such as those addressed by today's General
Permit, if it is reasonably foreseeable that such activities will
affect the uses or resources of the State's coastal zone. However, EPA
disagrees that the CZMA authorizes California to require that the
discharges at issue in this General Permit comply with the COP criteria
at the point of discharge in Federal waters. Moreover, EPA continues to
believe that the permit proposed in April 2004 would be fully
protective of California's coastal resources. As described in more
detail in EPA's December 2003 consistency certification, EPA concluded
that the proposed discharges would not cause unreasonable degradation
of the marine environment, including its biological resources, or other
adverse effects in California's coastal zone. See ``Demonstration of
Consistency of the Revised Draft General Permit with the California
CMP,'' Enclosure D (enclosure with letter from Alexis Strauss, Water
Division Director, EPA Region 9, to Peter Douglas, Executive Director,
California Coastal Commission) Dec. 10, 2003.
EPA notes that the Agency cannot at this time predict whether any
particular permittee's discharges will be found to have reasonable
potential to cause or contribute to an exceedance of the applicable
water quality criterion, nor can it predict the specific nature of any
potential future permit modifications based on the results of the
reasonable potential analysis described in today's permit, including
whether the COP criteria or the Federal criteria will apply for any
particular constituent. EPA will provide public notice of and seek
public comment on any proposed permit modification, including permit
limitations based on the Federal water quality criteria or COP
criteria. 40 CFR 124.5 and 124.6.
2. Effective Date
Today's general permit will be effective on December 1, 2004, which
is the first day of the month that begins at least 45 days after the
date of the Federal Register notice of final permit issuance. Because
of the significant and important environmental benefits that will be
achieved by the general permit, EPA has determined that it is critical
to make the permit effective as soon as possible and therefore is not
finalizing the delayed effective date proposed on April 8, 2004.
Instead, EPA is issuing the permit with an effective date of December
1, 2004.
In April 2004, EPA proposed to treat the permit as a Federal agency
activity under CZMA Section 307(c)(1) and to modify the proposed
effective date to allow the Agency to issue the permit but delay its
effectiveness for a given facility until the facility sought and
obtained from the CCC concurrence with the facility's certification
that its discharges pursuant to the permit would be consistent with the
CMP. As described above, the CCC objected to the permit as
[[Page 56763]]
proposed at that time. Thus, pursuant to regulations implementing the
CZMA, the permit would not have become effective for a particular
discharger until after a considerable delay. Under the proposed
approach, each facility would first prepare an individual certification
that its discharges under the general permit would be consistent with
the CMP. Each facility would then seek concurrence with its
certification from the CCC. The CCC would consider each certification
and, under the requirements of the State law governing the CCC's
procedures, would hold a public hearing on each certification. See
California Public Resources Code sections 30315 and 30320. After
considering comments received, the CCC would decide whether to concur
with or object to each certification. If the CCC objected to a
facility's certification, the facility could appeal the objection to
the Secretary of Commerce. See 15 CFR part 930, subpart H. In that
event, the Secretary of Commerce would hear and decide the appeal under
the procedures described at 15 CFR 930.125-930.130. The entire process
described above, including a potential appeal to the Secretary of
Commerce, could take as long as two to three years. In the meantime,
the terms and conditions of the existing permits would continue in
effect and the environmental benefits of the new permit conditions
would be further postponed.
After considering the time involved in such a process and the
potential delay in implementing the new general permit, EPA concludes
that the approach proposed on April 8, 2004, would delay significant
environmental benefits that will be achieved by the effluent
limitations in today's general permit. In particular, the permit
implements technology-based effluent limitations for conventional, non-
conventional, and toxic pollutants based on EPA's effluent guidelines
promulgated in March 1993, and EPA wants to avoid any further delay in
achieving the environmental benefits of these effluent limitations. See
58 FR 12504 (March 4, 1993). Today's general permit offers substantial
improvements over the present discharge requirements for the 22
platforms because it incorporates the more stringent 1993 EPA effluent
limitations guidelines. For example, the 1993 guidelines reduce
allowable discharges of oil and grease in produced water to 42 mg/l
(daily maximum) and 29 mg/l (monthly average). In comparison the
existing general permit includes a daily maximum limit of 72 mg/l and
no monthly average limit.
The CCC has concurred with EPA's determination that today's general
permit is consistent with the CMP. The CCC Executive Director confirmed
in a letter to EPA dated July 19, 2004, that the January 9, 2001, CCC
concurrence is still valid as long as EPA includes in the permit and
the addendum to the fact sheet all the changes which EPA agreed to in
2001. Today's permit includes those changes. Therefore, permittees need
not seek and obtain the CCC's concurrence with individual consistency
certifications under 15 CFR 930.31(d) before applying for coverage
under the general permit.
3. Other Issues
The April 8, 2004, proposed permit included a number of other
proposed changes from the July 20, 2000, permit. These changes have
been retained with no significant changes in the final permit. As
proposed on April 8, 2004, today's final permit accelerates the
schedule for produced water sampling for determining reasonable
potential to exceed applicable water quality criteria. The final permit
requires a total of 12 samples taken during the first year of the
permit rather than 10 samples taken during the first 2\1/2\ years, as
was required by the proposed permit of July 20, 2000. The final permit
also retains the revised maximum discharge volumes for Platforms
Harvest, Hermosa and Hidalgo (based on updated information from the
operator) which had been proposed on April 8, 2004. Further, the final
permit uses EPA's revised CWA 304(a) water quality criteria found in
``National Recommended Water Quality Criteria: 2002 (EPA-822-R-02-047)
and 68 FR 75507 (December 31, 2003) for purposes of the reasonable
potential study's dilution calculation. The April 8, 2004, proposed
permit also included a number of minor editorial changes,
clarifications and other revisions based on comments which had been
received since the proposal of July 20, 2000. These revisions have been
retained in the final permit.
C. Permit Appeal Procedures
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 Clean Water Act (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).
D. 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 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.
E. 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 rulemaking requirements under the Administrative
Procedure Act (APA) or any other statute 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 rulemaking
requirements, under APA section 553 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.'' Its
definition of ``rule'' encompasses ``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 requirements of an agency * * *'' APA section
551(4). Its definition of ``order'' is residual: ``a final disposition
* * * of an agency in a
[[Page 56764]]
matter other than rule making but including licensing'' APA section
551(6). The APA defines ``license'' to ``include * * * an agency permit
* * *'' APA section 551(8). 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. The APA defines ``rule
making'' as ``the agency process for formulating, amending, or
repealing a rule'' APA section 551(5). By its terms, then, section 553
applies only to ``rules'' and not also to ``orders,'' which include
permits.
F. 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'' 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 2 U.S.C. 658 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)[we only need parentheses around APA], or any other
law * * *.''
As discussed in the RFA section of this notice, NPDES general
permits are not ``rules'' 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.'' Thus, NPDES general permits
are not ``rules'' for RFA or UMRA purposes.
G. 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 submissions
made for the NPDES permit program and assigned OMB control numbers
2040-0086 (NPDES permit application) and 2040-0004 (discharge
monitoring reports).
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: September 15, 2004.
Alexis Strauss,
Director, Water Division, EPA Region 9.
[FR Doc. 04-21286 Filed 9-21-04; 8:45 am]
BILLING CODE 6560-50-P