[Federal Register Volume 71, Number 4 (Friday, January 6, 2006)]
[Proposed Rules]
[Pages 894-901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-36]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 122
[OW-2002-0068; FRL-8019-6]
RIN 2040-AE81
Amendments to the National Pollutant Discharge Elimination System
(NPDES) Regulations for Storm Water Discharges Associated With Oil and
Gas Exploration, Production, Processing, or Treatment Operations, or
Transmission Facilities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: Today EPA proposes action to codify in the Agency's
regulations changes to the Federal Water Pollution Control Act
resulting from the Energy Policy Act of 2005. This proposed action
would modify National Pollutant Discharge Elimination System
regulations to provide that certain storm water discharges from field
activities, including construction, associated with oil and gas
exploration, production, processing, or treatment operations, or
transmission facilities would be exempt from National Pollutant
Discharge Elimination System permit requirements. This action also
encourages voluntary application of best management practices for oil
and gas field activities and operations to minimize the discharge of
pollutants in storm water runoff and protect water quality.
DATES: Comments must be received on or before February 21, 2006.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2002-0068 by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
E-mail: [email protected]
Mail: Water Docket, Environmental Protection Agency,
Mailcode: 4101T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
Please include a total of three copies.
Hand Delivery: EPA Docket Center, EPA West, Room B102,
1301 Constitution Ave., NW., Washington, DC 20004. Such deliveries are
only accepted during the Docket's normal hours of operation, and
special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2002-
0068. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or e-mail.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket, visit the EPA Docket Center
homepage at www.epa.gov/epahome/dockets.htm. For additional
instructions on submitting comments, go to Unit I.C of the
SUPPLEMENTARY INFORMATION section of the document.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly
[[Page 895]]
available only in hard copy. Publicly available docket materials are
available either electronically in www.regulations.gov or in hard copy
at the Water Docket, EPA/DC, EPA West, Room B102, 1301 Constitution
Ave., NW., Washington, DC 20004. This Docket Facility is open from 8:00
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The
Docket telephone number is (202) 566-2426. 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.
FOR FURTHER INFORMATION CONTACT: Jeff Smith, Office of Wastewater
Management, Office of Water, Environmental Protection Agency, 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. Does This Action Apply to Me?
Entities potentially affected by this action include operators of
oil and gas exploration, production, processing and treatment, and
transmission facilities and associated construction activities at oil
and gas sites that generally are defined in the following North
American Industrial Classification System (NAICS) codes and titles:
211--Oil and Gas Extraction, 213111--Drilling Oil and Gas Wells,
213112--Support Activities for Oil and Gas Operations, 48611--Pipeline
Transportation of Crude Oil and 48621--Pipeline Transportation of
Natural Gas.
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 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(a)(2),
(b)(14)(x), (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.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
www.regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI). In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible.
Make sure to submit your comments by the comment period
deadline identified.
II. Background Information
A. NPDES Program
In 1972, Congress amended the Federal Water Pollution Control Act
(more commonly referred to as the Clean Water Act or CWA) to prohibit
the discharge of any pollutant to waters of the United States from a
point source except in compliance with specified provisions of the CWA,
including section 402. The principal means by which one may lawfully
discharge pollutants into waters of the United States is by obtaining
authorization in a NPDES permit issued under CWA section 402. Initial
efforts to improve water quality under the NPDES program focused
primarily on reducing pollutants in industrial process wastewater and
municipal sewage.
As pollution control measures for industrial process wastewater and
municipal sewage were implemented and refined, it became increasingly
evident that more diffuse sources of water pollution were also
significant causes of water quality impairment. Specifically, storm
water runoff draining large surface areas, such as agricultural and
urban land, was found to be a major cause of water quality impairment,
including the non-attainment of designated beneficial uses. As a
result, in 1987, Congress added Section 402(p) of the CWA, which
directs EPA to develop a two-phased approach to regulate storm water
discharges under the NPDES program.
The first phase of the national program for controlling storm
water, commonly referred to as ``Phase I,'' was promulgated on November
16, 1990 (55 FR 47990). Phase I requires NPDES permits for storm water
discharges from a large number of priority sources, including municipal
separate storm sewer systems (MS4s) generally serving populations of
100,000 or more and industrial activity. EPA defined the term ``storm
water discharge associated with industrial activity'' in a manner that
covered a wide variety of facilities, including construction activities
that disturb at least five acres of land (40 CFR 122.26(b)(14)(x)).
The second phase of the storm water program, ``Phase II,'' was
promulgated on December 8, 1999 (64 FR 68722). Phase II expanded the
existing program to include discharges of storm water from smaller
municipalities in urbanized areas and from construction sites that
disturb between one and five acres of land. (40 CFR 122.26(b)(15)(i)).
Discharges from these sources have generally needed permit
authorization since March 10, 2003 (40 CFR 122.26(e)(8)). Phase II
allows certain sources to be excluded from the national program based
on a demonstrable lack of impact on water quality. The Phase II rule
also allows for other sources not automatically regulated on a national
basis to be designated for inclusion based on increased likelihood for
localized adverse impact on water quality.
B. NPDES Program Provisions Specific to Oil and Gas Activities
The 1987 amendments to the CWA also added language at section
402(l)(2) that exempts from NPDES permitting requirements certain storm
water discharges from oil and gas exploration, production, processing,
or treatment operations or transmission facilities. That provision
states that ``[t]he Administrator shall not require a permit
[[Page 896]]
under this section, nor shall the Administrator directly or indirectly
require any State to require a permit, for discharges of storm water
runoff from mining operations or oil and gas exploration, production,
processing, or treatment operations or transmission facilities,
composed entirely of flows which are from conveyances or systems of
conveyances (including but not limited to pipes, conduits, ditches, and
channels) used for collecting and conveying precipitation runoff and
which are not contaminated by contact with, or do not come into contact
with, any overburden, raw material, intermediate products, finished
product, byproduct, or waste products located on the site of such
operations.''
On January 4, 1989, EPA promulgated a rule [National Pollutant
Discharge Elimination System Permit Regulations] that, among other
actions, codified the CWA section 402(l)(2) exemption at what was then
40 CFR 122.26(a)(3). (See 54 FR 246). The preamble to that rule
explained that the legislative history of CWA section 402(l)(2)
suggests that, with respect to oil or grease or hazardous substances,
the determination of whether storm water is contaminated by contact
with such materials, as established by the Administrator, shall take
into consideration whether these materials are present in such storm
water runoff in excess of reportable quantities under section 311 of
the CWA or section 102 of CERCLA.
The 1990 NPDES Phase I storm water regulations also codified the
CWA section 402(l)(2) exemption, this time moving the regulatory
exemption to 40 CFR 122.26(a)(2) for uncontaminated storm water
discharges from oil and gas activities while also imposing permit
requirements for storm water discharges associated with industrial
activities, including construction sites disturbing at least five acres
(40 CFR 122.26(b)(14)(x)). The Phase I rule re-codification of the CWA
section 402(l)(2) provision also revised the regulatory language to
specify that the ``Director may not require a permit'' rather than the
section 402(l)(2) language that specifies that the ``Administrator
shall not require a permit under this section, nor shall the
Administrator directly or indirectly require any State to require a
permit'' for these discharges. This change helped clarify that States
may not require permits for these discharges under the NPDES program.
The rule also codified at Sec. 122.26(c)(1)(iii) the conditions
which would be considered indicative of contamination by contact with
overburden, raw material, intermediate products, finished product,
byproduct, or waste products located on the site and would thus
necessitate an NPDES storm water permit application by oil and gas
exploration, production, processing or treatment operations or
transmission facilities. Section 122.26(c)(1)(iii) provides as follows:
(iii) The operator of an existing or new discharge composed
entirely of storm water from an oil or gas exploration, production,
processing, or treatment operation, or transmission facility is not
required to submit a permit application in accordance with paragraph
(c)(1)(i) of this section, unless the facility:
(A) Has had a discharge of storm water resulting in the
discharge of a reportable quantity for which notification is or was
required pursuant to 40 CFR 117.21 or 40 CFR 302.6 at anytime since
November 16, 1987; or
(B) Has had a discharge of storm water resulting in the
discharge of a reportable quantity for which notification is or was
required pursuant to 40 CFR 110.6 at any time since November 16,
1987; or
(C) Contributes to a violation of a water quality standard.
EPA based this interpretation of contamination on the legislative
history of section 402(l)(2), which directed EPA to consider whether
reportable quantities (RQs) of oil or grease or hazardous substances
under either the CWA or CERCLA had been exceeded in determining whether
storm water from oil and gas operations had been contaminated by
contact with overburden, raw material, intermediate products, finished
products, byproduct, or waste products.
Shortly after issuance of EPA's first general permit specific to
storm water discharges associated with construction activity (Final
NPDES General Permits for Storm Water Discharges From Construction
Sites, September 9, 1992, 57 FR 41176), EPA Region 8 raised a question
to EPA Headquarters about the applicability of the permit requirements
for oil and gas-related construction activities. On December 10, 1992,
EPA Headquarters sent a memorandum to EPA Region 8 stating that all
construction activities that disturb five or more acres must apply for
a permit, including those construction activities associated with oil
and gas activities.
This memorandum was legally challenged by a collection of trade
associations who asserted that the memorandum was unlawful and
requested that the court set it aside as inconsistent with the CWA. The
United States Court of Appeals for the Fourth Circuit dismissed this
challenge on the grounds that the internal EPA memorandum itself did
not constitute an action reviewable by the courts. Appalachian Energy
Group v. EPA, 33 F.3d. 319, 322 (4th Cir. 1994).
As noted previously, EPA promulgated the final Phase II storm water
rule on December 8, 1999 with a requirement that storm water discharges
from small construction activities (those disturbing between one and
five acres) obtain NPDES permit coverage beginning on March 10, 2003.
Based on public comments on the January 9, 1998, proposed Phase II
rule, EPA had considered including oil and gas exploration sites in its
economic analysis for the rulemaking, but further analysis suggested
that few, if any, of these sites would actually disturb more than one
acre of land. Economic Analysis of the Final Phase II Storm Water Rule,
October 1999 (see p 4-2). Accordingly, EPA decided that separate
analysis of this sector was unnecessary. After promulgating the final
Phase II rule, EPA became aware that close to 30,000 oil and gas sites
annually may, in fact, be affected. EPA now believes that the majority
of such sites may exceed one acre when the acreage attributed to lease
roads, pipeline right-of-ways and other infrastructure facilities is
apportioned to each site.
In light of this new information, on March 10, 2003, EPA published
a rule (the ``deferral rule'') that postponed until March 10, 2005, the
permit authorization deadline for NPDES storm water permits for oil and
gas construction activity that disturbs one to five acres of land. This
extension allowed EPA to analyze and better evaluate (1) the impact of
the permit requirements on the oil and gas industry, (2) the
appropriate best management practices (BMPs) for preventing
contamination of storm water runoff resulting from construction
associated with oil and gas exploration, production, processing, or
treatment operations or transmission facilities, and (3) the scope and
effect of section 402(l)(2) and other storm water provisions of the
Clean Water Act. 68 FR 11325.
Between 2003 and 2005, EPA gathered information on size, location
and other site characteristics to better evaluate compliance costs
associated with the control of storm water runoff from oil and gas
construction activities. EPA met with various stakeholders and visited
a number of oil and gas sites with construction-related activities, to
discuss and review existing BMPs for preventing contamination of storm
water runoff resulting from construction associated with these oil and
gas activities. Additionally, EPA gathered economic data for the
industry and
[[Page 897]]
initiated an economic impact analysis of the existing Phase II
regulations specific to the oil and gas industry. EPA's preliminary
analysis indicated that there could be significant and potentially
costly administrative delays in the permitting process for oil and gas
construction sites that were not considered in the original economic
analysis for the 1999 Phase II rulemaking. As a result, on March 9,
2005, EPA further postponed the date for NPDES regulation for an
additional 15 months until June 12, 2006, to provide additional time
for the Agency to complete its evaluation of the economic and legal
issues that were raised and to assess appropriate procedures and
methods for controlling storm water discharges from these sources to
mitigate impacts on water quality.
A collection of trade associations petitioned the United States
Court of Appeals for the Fifth Circuit for review of the March 10, 2003
deferral rule. The petitioners asserted that the deferral rule
represents the Agency's first acknowledgment that the NPDES regulations
apply to construction activities associated with oil and gas
activities, but that such regulations are inconsistent with CWA section
402(l)(2). On June 16, 2005, the Fifth Circuit dismissed the petition
on the grounds that the issue is not ripe for review. Specifically, the
Court acknowledged EPA's ongoing analysis of this issue and indicated
that ``any interpretation [of CWA section 402(l)(2)] we would provide
would necessarily prematurely cut off EPA's interpretive process.''
Texas Independent Producers and Royalty Owners Ass'n, et al. v. EPA,
413 F.3d 479, 483 (5th Cir. 2005).
III. Description of Proposed NPDES Program Modifications
A. Objectives EPA Seeks To Achieve in Today's Proposal
The primary purpose of today's proposed rule is to propose
modifications to the NPDES regulations in 40 CFR part 122 based on
changes to the Clean Water Act (CWA) resulting from the Energy Policy
Act of 2005 language (See Pub. L. 109-58, 119 Stat. 694 (codified as
amended at 33 U.S.C. 1362 (2005))). A second purpose is to encourage
voluntary application of best management practices (BMPs) for oil and
gas field activities and operations, including construction, to provide
additional protection of water quality from potential storm water
discharges.
On August 8, 2005, the President signed into law the Energy Policy
Act of 2005. Section 323 of the Energy Policy Act of 2005 added a new
paragraph (24) to section 502 of the CWA to define the term ``oil and
gas exploration, production, processing, or treatment, or transmission
facilities'' to mean ``all field activities or operations associated
with exploration, production, processing, or treatment operations, or
transmission facilities, including activities necessary to prepare a
site for drilling and for the movement and placement of drilling
equipment, whether or not such field activities or operations may be
considered to be construction activities.'' This term is used in CWA
section 402(l)(2) of the CWA to identify oil and gas activities for
which EPA shall not require NPDES permit coverage for certain storm
water discharges. The effect of this statutory change is to make
construction activities at oil and gas sites eligible for the exemption
established by CWA section 402(l)(2). EPA interprets this extension of
the statutory exemption to include construction of drilling sites,
drilling waste management pits, and access roads as well as
construction of the transportation and treatment infrastructure such as
pipelines, natural gas treatment plants, natural gas pipeline
compressor stations and crude oil pumping stations.
The action is being published in the Federal Register as a proposed
rule to provide the public and interested stakeholders with the
opportunity to comment on this rulemaking.
B. Today's Regulatory Approach
1. Requirements for Regulated Entities Under Today's Proposal
Today's action proposes to codify changes to section 502, subpart
(24) (``Oil and Gas Exploration and Production Defined'') of the Clean
Water Act (CWA) into EPA regulations in 40 CFR part 122 (``EPA-
Administered Permit Programs: The National Pollutant Discharge
Elimination System [NPDES]''). Specifically, the language in the Energy
Policy Act of 2005, signed by the President on August 8, 2005, states
that section 502 of the CWA is amended by adding the following
subparagraph at the end of the current section: ``(24) OIL AND GAS
EXPLORATION AND PRODUCTION.--The term `oil and gas exploration,
production, processing, or treatment operations or transmission
facilities' means all field activities or operations associated with
exploration, production, processing, or treatment operations, or
transmission facilities, including activities necessary to prepare a
site for drilling and for the movement and placement of drilling
equipment, whether or not such field activities or operations may be
considered to be construction activities.''
In extending this statutory exemption at CWA section 402(l)(2) to
oil and gas construction activities, Congress did not differentiate
among operations on the basis of the size of the disturbed acreage.
Accordingly, there is no distinction in today's proposal as to whether
the amount of disturbed acreage is less than 1 acre, between 1 and 5
acres, or greater than 5 acres. Hence, discharges from ``large''
construction activity (disturbing at least 5 acres) at oil and gas
facilities would be eligible for the exemption from NPDES permitting
requirements under today's proposal to the same extent as discharges
from small construction activity at such facilities.
In addition to the construction of drilling sites, drilling waste
management pits, and access roads, EPA also interprets the specific
phrase in the statutory language ``all field activities or operations''
[emphasis added] as being applicable to construction of in-field
treatment plants and the transportation infrastructure (e.g., crude oil
and natural gas pipelines, natural gas treatment plants and both
natural gas pipeline compressor and crude oil pump stations) necessary
for the operation of most producing oil and gas fields. Such
construction activities would thus be eligible for the CWA section
402(l)(2) exemption from NPDES permitting requirements.
This proposed regulation would implement Congress' intention, in
the Energy Policy Act of 2005, to exclude virtually all oil and gas
construction activities from regulation under the NPDES storm water
program. However, consistent with the language of CWA section
402(l)(2), the proposed regulatory changes would not exclude oil and
gas construction activities from regulation under the NPDES storm water
program when such field activities or operations discharge storm water
that has been contaminated by contact with ``* * * any overburden, raw
material, intermediate products, finished product, byproduct or waste
products located on the site of such operations.'' [CWA section
402(l)(2)].
The legislative history of CWA section 402(l)(2) provided guidance
to EPA in interpreting the phrase ``contaminated by contact with.'' It
provides as follows:
The substitute [final version of the bill] provides that permits
are not required where stormwater runoff is diverted around mining
operations or oil and gas operations and does not come in contact
with overburden, raw material, product, or process waste. In
addition, where stormwater runoff is not contaminated by contact
with such materials,
[[Page 898]]
as determined by the Administrator, permits are also not required.
With respect to oil or grease or hazardous substances, the
determination of whether stormwater is `contaminated by contact
with' such materials, as established by the Administrator, shall
take into consideration runoff in excess of reportable quantities
under section 311 of the Clean Water Act or section 102 of the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, or in the case of mining operations, above natural
background levels.
Based on this language, EPA codified its interpretation of
``contaminated by contact with'' at Sec. 122.26(c)(1)(iii). It
provides that oil and gas operations are exempt except where their
discharges contribute reportable quantities of oil or grease or
hazardous substances to waters of the United States or contribute to a
violation of a water quality standard.
However, a plain reading of CWA section 402(l)(2) suggests that oil
and gas sites where runoff is not contaminated by contact with raw
material, intermediate products, finished product, byproduct or waste
products located at the site are not required to obtain NPDES permits,
even in situations where the runoff might be contributing to a
violation of water quality standards (the term overburden is applicable
only to mining). At the time that EPA promulgated Sec.
122.26(c)(1)(iii), EPA believed it reasonable to presume that causing
or contributing to a violation of water quality standards was an
indication of contamination as envisioned in the statute. However, now
that Congress has explicitly extended the exemption to construction
activities associated with oil and gas operations, EPA believes this
presumption may no longer be valid in some instances. For example,
sediment in runoff related to the clearing of ground or construction of
an access road could cause or contribute to a water quality standard
violation even where the runoff does not come into contact with raw
material, intermediate products, finished product, byproduct or waste
products located at the site.
For this reason, EPA is proposing to clarify in Sec.
122.26(a)(2)(ii) that a water quality standard violation for sediment
alone does not trigger a permitting requirement. Because most
substances for which an RQ has been established are the types of
materials (e.g., oil, grease, toxic or hazardous chemicals) that would
likely not be present in storm water discharge from an oil or gas site
other than through contact with exposed raw material, intermediate
products, finished product, byproduct or waste products, EPA would
generally consider an exceedance of an RQ as indicative of
contamination. This would be true whether such contact occurred during
or after construction. Sediment, in contrast, could easily be present
in the discharge even without such contact, and thus in and of itself
would not lead to a determination of contamination through contact.
Sediment could serve as a vehicle for discharges of oil or grease or
hazardous substances (e.g., heavy metals) and if an RQ is exceeded or a
water quality standard violated for such a pollutant, such
contamination could trigger permitting requirements. EPA believes that
this interpretation is fully consistent with Congress' intent in
enacting the 2005 Energy Policy Act, which specifically included within
the scope of the section 404(l)(2) exemption construction activities
associated with oil and gas sites.
Finally, EPA proposes to reorganize regulatory language in Sec.
122.26(a)(2) to create two new paragraphs: (i) and (ii). EPA believes
this change is consistent with the existing regulatory framework
provided in Sec. 122.26(c)(1)(iii) and (iv) which separates mining and
oil and gas requirements. Proposed paragraph (i) merely recodifies
existing requirements at Sec. 122.26(c)(1)(iv) for storm water
discharges from mining operations that come into contact with, any
overburden, raw material, intermediate products, finished products,
byproduct, or waste products located on the site of such operations.''
Proposed paragraph (ii) clarifies permit requirements for storm water
discharges from oil and gas sites consistent with the discussion
provided above. In addition, EPA is proposing to add a note to the
regulations encouraging operators of oil and gas field activities or
operations to implement and maintain Best Management Practices (BMPs)
to minimize the discharges of pollutants, including sediment, in storm
water both during and after construction activities to help protect
surface water quality during storm events. Additional discussion of the
importance of these activities is provided in section III.B.3.
Today's proposed rulemaking would apply to all States, Federal
lands and Indian Country regardless of whether EPA is the NPDES
permitting authority. Discharges that would be exempted from NPDES
permit requirements in today's proposal would be exempted from such
NPDES requirements regardless of whether EPA or a State is the
permitting authority. EPA wishes to clarify, however, that today's
proposal is not intended to interfere with the States' ability to
regulate any discharges through a State's non-NPDES program. However,
if a State were to require a permit for discharges exempt from the
Clean Water Act NPDES program requirements, the State's permit
requirement would not be considered part of the State's EPA-approved
NPDES program. See 40 CFR 123.1(i)(2).
EPA requests comment on all aspects of this proposed rule.
2. Timeframe for Final Rule
EPA intends to issue a final rulemaking in advance of the June 12,
2006 deadline by which oil and gas construction sites that disturb one
to five acres of land are currently scheduled to obtain NPDES permits
for their discharges. If finalized as proposed, EPA's final rulemaking
would effectively exempt all field activities or operations associated
with oil and gas exploration, production, processing or treatment and
transmission construction activities from regulation under the NPDES
storm water permitting program, except in accordance with Sec.
122.26(a)(2)(ii) and (c)(1)(iii).
3. Best Management Practices (BMPs)
In accordance with CWA section 402(l)(2), today's proposed rule
does not require that operators select, install, and maintain Best
Management Practices (BMPs) to minimize discharges of pollutants
(including sediment) in storm water; however, the Agency is adding a
note within the regulatory text encouraging operators of oil and gas
field activities or operations to institute these practices both during
and after construction activities whenever practicable.
Installation of effective BMPs would provide additional measures to
help protect surface water during storm events. Appropriate controls
would be those suitable to the site conditions, both during and after
the period of construction, and consistent with generally accepted
engineering design criteria and manufacturer specifications. Selection
of BMPs could also be affected by seasonal or climate conditions.
Most storm water controls for construction activities can be
grouped into three classes: (a) Erosion and sediment controls; (b)
storm water management measures; and (c) good housekeeping practices.
Erosion and sediment controls address pollutants (e.g., sediment) in
storm water generated from the site during active construction-related
work. Storm water management measures result in reductions of
pollutants in storm water discharged from the site after the
construction has been completed. Good housekeeping measures are those
practices employed to manage materials on the site and control litter.
While not explicitly
[[Page 899]]
required by regulation, some good housekeeping practices may be
necessary to ensure that runoff satisfies the conditions in Sec.
122.26(a)(2)(ii) and (c)(1)(iii) for eligibility for the permitting
exemption.
Effective soil erosion and sedimentation control typically is
accomplished through the use of a suite of BMPs. Operators should
design control measures that collectively address the multiple needs of
holding soil in place, diverting storm water around active areas with
bare soil, slowing water down as it crosses the site, and providing
settling areas for soil that has become mobilized.
The value of EPA's recommended oil and gas construction site BMPs
has already been recognized by many oil and gas site operators. Under
the sponsorship of the Independent Petroleum Association of America,
the oil and gas industry developed guidance entitled ``Guidance
Document: Reasonable and Prudent Practices for Stabilization (RAPPS) of
Oil and Gas Construction Sites,'' Horizon Environmental Services, Inc.,
April 2004, that describes the application of appropriate BMPs based on
general geographical location and the distance, slope, and amount of
vegetative cover between the construction activity and the nearest
water body. This document is a relatively simple, common sense approach
to mitigating environmental consequences arising from a variety of oil
and gas construction activities. The document has been widely
publicized and a large number of independent oil and gas operating
companies have informed EPA that they have adopted the practices
outlined in the document in their day-to-day field construction
activities.
4. Other Federal, State, Tribal, and/or Local Controls
EPA expects that operators will comply with applicable Federal,
State, Tribal, and/or local controls on oil and gas construction
activities. For example, today's action does not affect existing
requirements established under section 404 of the CWA for discharges of
dredge and fill materials to waters of the United States, including
requirements as they apply to wetlands. Similarly, the proposed rule
does not affect decisions made at the local level on the need for
enhanced protection of local water resources. As such, this proposed
rulemaking would not curtail the ability of an appropriate
environmental management agency (e.g., State, Tribal or local
government) from imposing specific discharge conditions on an oil and
gas operator that would otherwise be exempted under today's proposed
rule so long as these requirements are imposed pursuant to authority
other than an EPA-approved NPDES program. For example, a State or tribe
could choose, under its own authorities, to set limits or require that
an operator meet certain discharge conditions in sensitive watersheds.
IV. 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) Alter materially 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.
Pursuant to the terms of Executive Order 12866, EPA has determined
that this is a ``significant regulatory action'' within the meaning of
the Executive Order. EPA has submitted this action to OMB for review.
Changes made in response to OMB suggestions or recommendations will be
documented in the public record.
B. Paperwork Reduction Act
This proposed rule would not impose an information collection
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501, et seq., as this rulemaking is deregulatory and imposes no new
requirements.
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 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 proposed rule on
small entities, I certify that this action would not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule would have a significant economic impact on
a substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves regulatory burden, or otherwise has a positive economic effect
on all of the small entities subject to the rule.
[[Page 900]]
Today's proposed rule, by expanding the universe of oil and gas
operations eligible for the NPDES permit exemption created by CWA
section 402(l)(2), would relieve the regulatory burden for certain
discharges associated with construction activity at exploration,
production, processing, or treatment operations, or transmission
facilities to obtain an NPDES storm water permit. We have therefore
concluded that today's proposed rule would relieve a regulatory burden
for all affected small entities.
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.
Today's proposed rule contains no Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local, or
tribal governments or the private sector. The proposed rule imposed no
enforceable duty on any State, local or tribal governments or the
private sector. Thus, today's proposed rule is not subject to the
requirements of sections 202 and 205 of the 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.''
The phrase ``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 proposed rule does not have federalism implications. It would
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. 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 proposed rule does not
have any Tribal implications as specified in Executive Order 13175. It
would 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.
Thus, Executive Order 13175 does not apply to this rule. EPA
specifically solicits additional comment on this proposed rule from
tribal officials.
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
proposed rule is not subject to the Executive Order because it is not
economically significant as defined under Executive Order 12866, and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This proposed rule is not a ``significant energy action'' as
defined in Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy.
I. National Technology Transfer and Advancement Act
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 proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
List of Subjects in 40 CFR Part 122
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Reporting and
[[Page 901]]
recordkeeping requirements, Water pollution control.
Dated: December 30, 2005.
Stephen L. Johnson,
Administrator.
For the reasons set forth in the preamble, Chapter I of Title 40 of
the Code of Federal Regulations is proposed to be amended as follows:
PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
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]
2. Section 122.26 is amended by revising paragraphs (a)(2) and
(e)(8) to read as follows:
Sec. 122.26 Storm water discharges (applicable to State NPDES
programs, see 122.35).
(a) * * *
(2) The Director may not require a permit for discharges of storm
water runoff from the following:
(i) Mining operations composed entirely of flows which are from
conveyances or systems of conveyances (including but not limited to
pipes, conduits, ditches, and channels) used for collecting and
conveying precipitation runoff and which are not contaminated by
contact with or that have not come into contact with, any overburden,
raw material, intermediate products, finished product, byproduct or
waste products located on the site of such operations, except in
accordance with Sec. 122.26(c)(1)(iv).
(ii) All field activities or operations associated with oil and gas
exploration, production, processing, or treatment operations, or
transmission facilities, including activities necessary to prepare a
site for drilling and for the movement and placement of drilling
equipment, whether or not such field activities or operations may be
considered to be construction activities, except in accordance with
Sec. 122.26(c)(1)(iii). Discharges of sediment from construction
activities associated with oil and gas exploration, production,
processing, or treatment operations, or transmission facilities are not
subject to the provisions of Sec. 122.26(c)(1)(iii)(C).
Note to Sec. 122.26(a)(2)(ii): EPA encourages operators of oil
and gas field activities or operations to implement and maintain
Best Management Practices (BMPs) to minimize discharges of
pollutants, including sediment, in storm water both during and after
construction activities to help ensure protection of surface water
quality during storm events. Appropriate controls would be those
suitable to the site conditions and consistent with generally
accepted engineering design criteria and manufacturer
specifications. Selection of BMPs could also be affected by seasonal
or climate conditions.
* * * * *
(e) * * *
(8) For any storm water discharge associated with small
construction activities identified in paragraph (b)(15)(i) of this
section, see Sec. 122.21(c)(1). Discharges from these sources require
permit authorization by March 10, 2003, unless designated for coverage
before then.
* * * * *
[FR Doc. E6-36 Filed 1-5-06; 8:45 am]
BILLING CODE 6560-50-P