[Federal Register Volume 70, Number 45 (Wednesday, March 9, 2005)]
[Rules and Regulations]
[Pages 11560-11563]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4467]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 122
[OW-2002-0068; FRL-7882-2]
RIN 2040-AE71
Extension of National Pollutant Discharge Elimination System
(NPDES) Permit Deadline for Storm Water Discharges for Oil and Gas
Activity That Disturbs One to Five Acres
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Today's action postpones until June 12, 2006, the requirement
to obtain National Pollutant Discharge Elimination System (NPDES) storm
water permit coverage for oil and gas construction activity that
disturbs one to five acres of land. This is the second postponement
promulgated by EPA for these activities. This postponement will allow
the Agency additional time to complete its analysis of the issues
raised by stakeholders about storm water runoff from construction
activities at oil and gas sites and of practices and methods for
controlling these storm water discharges to mitigate impacts on water
quality, as appropriate. Within six months of today's action, EPA
intends to publish a notice of proposed rulemaking in the Federal
Register for addressing these discharges and to invite public comments.
DATES: This final rule is effective on March 9, 2005.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. OW-2002-0068. All documents in the docket are listed in the EDOCKET
index at http://www.epa.gov/edocket. Although listed in the index, some
information is not publicly available, i.e., confidential business
information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, is not
placed on the Internet and will be publicly available only in hard copy
form. Publicly available docket materials are available either
electronically in EDOCKET or in hard copy at the Docket, EPA/DC, EPA
West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the Water
Docket is (202) 566-2426.
FOR FURTHER INFORMATION CONTACT: Jeff Smith, Office of Wastewater
Management, Office of Water, Environmental Protection Agency (4203M),
1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number:
(202) 564-0652; fax number: (202) 564-6431; e-mail address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Affected Entities
Entities potentially affected by this action include operators of
construction activities disturbing at least one acre, but less than
five acres of land at oil and gas sites, North American Industrial
Classification System (NAICS) codes and titles: 211--Oil and Gas
Extraction, 213111--Drilling Oil and Gas Wells, and 213112--Support
Activities for Oil and Gas Operations.
This description is not intended to be exhaustive, but rather
provides a guide for readers regarding entities likely to be affected
by this action. This description identifies the types of entities that
EPA is now aware could potentially be affected by this action. Other
types of entities not identified could also be affected. To determine
whether your facility or company is affected by this action, you should
carefully examine the applicability criteria in 40 CFR 122.26(b)(15)
and (e)(8). If you have questions regarding the applicability of this
action to a particular entity, consult the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
[[Page 11561]]
B. When Does This Rule Take Effect?
Because this rule provides temporary relief from permitting
requirements for certain dischargers, this rule is not subject to the
general requirement for a thirty-day waiting period after publication
before a final rule takes effect. By providing such relief, this rule
``relieves a restriction'' on these dischargers. 5 U.S.C. 553(d)(1).
Moreover, pursuant to 5 U.S.C. 553(d)(3), EPA has good cause to make
this rule effective immediately upon publication. The March 10, 2005,
deadline this action extends is less than thirty days after the
publication of this rule. Making this action effective as soon as it is
published will help reduce any confusion by those affected by the rule
regarding the necessity for obtaining permit coverage. Therefore, a
thirty-day waiting period is unnecessary and would be contrary to the
public interest.
II. Background
On January 18, 2005 (70 FR 2832), EPA proposed a fifteen month
postponement of the permit requirement for oil and gas construction
activity disturbing one to five acres, from March 10, 2005, to June 12,
2006, to allow time for EPA to complete its analysis of the economic
impacts and the legal and procedural implications of the options that
the Agency is considering regarding the regulation of storm water
discharges from oil and gas-related construction sites, and to evaluate
the practices and methods operators employ to control storm water
discharges from the sites affected by this rule. In that proposal, EPA
explained the background of the NPDES construction permit requirements,
and why EPA believes it is appropriate to provide an additional fifteen
month postponement of permit requirements for construction of oil and
gas exploration and production facilities disturbing one to five acres.
When describing construction activity that disturbs ``one to five
acres'' or in discussing ``small'' construction activity in this
preamble, EPA is referring to activities covered by 40 CFR
122.26(b)(15).
III. Response to Comments
EPA received a modest number of comments on its proposal to provide
an additional fifteen month postponement of permit requirements for
discharges from oil and gas-related construction activity disturbing
one to five acres. EPA's responses to all of these comments may be
found in the Response to Comment document that is part of the docket
for this final rule.
IV. Today's Action
In today's action, EPA is extending until June 12, 2006, the
deadline for obtaining NPDES storm water permits for oil and gas
construction activity that disturbs at least one acre, but less than
five acres of land and sites disturbing less than one acre that are a
part of a larger common plan of development or sale that disturbs
between one and five acres. The text finalized at Sec. 122.26(e)(8)
does not create any duty to apply for an NPDES permit that did not
already exist as a result of EPA's Phase II regulations. Rather, this
amendment merely extends the permitting deadline for a certain class of
dischargers.
During the next fifteen months, EPA intends to (1) complete the
economic impact analysis; (2) complete the evaluation of the legal and
procedural implications associated with several options that the Agency
is considering with regard to regulation of storm water discharges from
oil and gas-related construction sites; and (3) continue to evaluate
practices and methods operators may employ to control storm water
discharges from the sites affected by this rule. One of the issues EPA
will be examining during this period is how best to resolve questions
posed by outside parties regarding section 402(l)(2) of the Clean Water
Act, which exempts certain storm water discharges from oil and gas
exploration, production, processing, or treatment operations or
transmission facilities from NPDES permit requirements. EPA intends to
convene at least one public meeting with stakeholders for the purpose
of exchanging information on current industry practices and the
effectiveness of those practices in protecting water quality and
obtaining input on the appropriate approach for addressing construction
storm water discharges from this industry. EPA will publish a separate
notice in the Federal Register with information about this public
meeting. Finally, EPA expects to propose and take some subsequent final
action based on the Agency's conclusions following these activities
prior to June 12, 2006.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, (58 FR 51735 (October 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:
(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.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
It merely postpones implementation of an existing rule deadline.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information; processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
generally requires an agency to prepare a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements under the Administrative
[[Page 11562]]
Procedure Act 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.
For purposes of assessing the impacts of today's final rule on
small entities, small entity is defined as: (1) A small business based
on Small Business Administration size standards; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. Today's
action merely postpones the permit authorization deadline for oil and
gas construction activity that disturb one to five acres. Because EPA
is postponing a deadline for numerous small entities to comply with
NPDES permit requirements, this final action will not impose any burden
on any small entity.
D. 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. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that this rule does not contain a Federal
mandate 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. This rule does not impose any costs. It merely
postpones the permit authorization deadline for oil and gas
construction activity that disturb one to five acres. Thus, today's
final rule is not subject to the requirements of sections 202 and 205
of the UMRA. For the same reason, EPA has determined that this rule
contains no regulatory requirements that might significantly or
uniquely affect small governments. Thus, today's final rule is not
subject to the requirements of section 203 of UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This rule does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the National Government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. It merely postpones the permit
authorization deadline for oil and gas construction activity that
disturb one to five acres. Thus, Executive Order 13132 does not apply
to this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled, ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.''
This rule does not have tribal implications. It will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175. It
merely postpones the permit authorization deadline for oil and gas
construction activity that disturb one to five acres. Thus, Executive
Order 13175 does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. This
regulation is not subject to Executive Order 13045 because it is not
economically significant as defined under Executive Order 12866.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866. The only
effect of this rule is to (1) delay the permit authorization
requirement for affected small oil and gas operations by an additional
fifteen months and (2) allow
[[Page 11563]]
EPA time necessary to develop a further proposal to address storm water
discharges from such activities.
I. National Technology Transfer And Advancement Act
As noted in the proposed rule, section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law
104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use
voluntary consensus standards in its regulatory activities unless to do
so would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standard bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
This rulemaking does not involve technical standards. Therefore,
EPA did not consider the use of any voluntary consensus standards.
However, EPA is exploring the availability and potential use of
voluntary consensus standards developed consistent with the NTTAA and
the requirements of the CWA as a means of addressing storm water runoff
from oil and gas construction activities as part of a future
rulemaking.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective March 9, 2005.
K. Petitions for Judicial Review
Under section 509(b)(1) of the Clean Water Act, judicial review of
this action may only be had by filing a petition for review in the
United States Court of Appeals within 120 days after March 9, 2005.
List of Subjects in 40 CFR Part 122
Administrative practice and procedure, Confidential business
information, Environmental protection, Hazardous substances, Reporting
and recordkeeping requirements, Water pollution control.
Dated: March 3, 2005.
Stephen L. Johnson,
Acting Administrator.
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For the reasons set forth in the preamble, chapter I of title 40 of the
Code of Federal Regulations is amended as follows:
PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
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1. The authority citation for part 122 continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
Subpart B--[Amended]
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2. Revise Sec. 122.26(e)(8) to read as follows:
Sec. 122.26 Storm water discharges (applicable to State NPDES
programs, see Sec. 123.25).
* * * * *
(e) * * *
(8) For any storm water discharge associated with small
construction activity identified in paragraph (b)(15)(i) of this
section, see Sec. 122.21(c)(1). Discharges from these sources, other
than discharges associated with small construction activity at oil and
gas exploration, production, processing, and treatment operations or
transmission facilities, require permit authorization by March 10,
2003, unless designated for coverage before then. Discharges associated
with small construction activity at such oil and gas sites require
permit authorization by June 12, 2006.
* * * * *
[FR Doc. 05-4467 Filed 3-8-05; 8:45 am]
BILLING CODE 6560-50-P