[Federal Register Volume 71, Number 245 (Thursday, December 21, 2006)]
[Notices]
[Pages 76667-76669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-21890]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8259-3]


Proposed Reissuance of the NPDES General Permit for the Western 
Portion of the Outer Continental Shelf of the Gulf of Mexico 
(GMG290000)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Proposed NPDES General Permit Reissuance.

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SUMMARY: The Regional Administrator of Region 6 today proposes to 
reissue the National Pollutant Discharge Elimination System (NPDES) 
general permit for the Western Portion of the Outer Continental Shelf 
of the Gulf of Mexico (No. GMG290000) for discharges from existing and 
new dischargers and New Sources in the Offshore Subcategory of the Oil 
and Gas Extraction Point Source Category as authorized by section 402 
of the Clean Water Act. The permit, previously reissued on October 7, 
2004, and published in the Federal Register at 69 FR 60150, authorizes 
discharges from exploration, development, production, and transmission 
facilities located in and discharging to Federal waters of the Gulf of 
Mexico seaward of the outer boundary of the territorial seas off 
Louisiana and Texas. Discharges of produced water to Federal waters 
from facilities located in the territorial seas are also authorized 
when all conditions of the permit are met. The following changes to the 
expiring permit are proposed to be made as a part of the permit 
reissuance. Requirements to comply with new cooling water intake 
structure regulations are included. Sub-lethal effects are required to 
be measured for whole effluent toxicity testing. New test methods are 
allowed for monitoring cadmium and mercury in stock barite. 
Clarifications have been added to the permit requirements for: Types of 
activities covered; pit cleaning and other wash water; end of well 
monitoring; sediment toxicity test averaging; the drilling fluids 
discharge rate limitation; discharges associated with dual gradient 
drilling; toxicity testing for miscellaneous discharges; and 
calculation of the produced water critical dilution for toxicity 
testing. Other minor changes in wording are also proposed to clarify 
EPA's intent regarding the permit's requirements.

DATES: Comments must be received by February 20, 2007.

ADDRESSES: Comments should be sent to: Ms. Diane Smith, Water Quality 
Protection Division, U.S. Environmental Protection Agency, 1445 Ross 
Avenue, Dallas, Texas 75202-2733.
    Comments may also be submitted via e-mail to the following address: 
[email protected].

FOR FURTHER INFORMATION CONTACT: Ms. Diane Smith, Region 6, U.S. 
Environmental Protection Agency (6WQ-CA), 1445 Ross Avenue, Dallas, 
Texas 75202-2733. Telephone: (214) 665-2145.
    A copy of the proposed permit, and the fact sheet more fully 
explaining the proposal may be obtained from Ms. Smith. The Agency's 
current administrative record on the proposal is available for 
examination at the Region's Dallas offices during normal working hours 
after providing Ms. Smith 24 hours advance notice. Additionally, a copy 
of the proposed permit, fact sheet, and this Federal Register Notice 
may be obtained on the Internet at: http://www.epa.gov/earth1r6/6wq/6wq.htm.

SUPPLEMENTARY INFORMATION:
    Regulated entities. EPA intends to use the proposed reissued permit 
to regulate oil and gas extraction facilities located in the Outer 
Continental Shelf of the Western Gulf of Mexico, e.g., offshore oil and 
gas extraction platforms, but other types of facilities may also be 
subject to the permit. To determine whether your facility, company, 
business, organization, etc., may be affected by today's action, you 
should carefully examine the applicability criteria in Part I, Section 
A.1 of the draft permit. Questions on the permit's application to 
specific facilities may also be directed to Ms. Smith at the telephone 
number or address listed above.
    The permit contains limitations conforming to EPA's Oil and Gas 
extraction, Offshore Subcategory Effluent Limitations Guidelines at 40 
CFR Part 435 and additional requirements assuring that regulated 
discharges will cause no unreasonable degradation of the marine 
environment, as required by section 403(c) of the Clean Water Act. 
Specific information on the derivation of those limitations and 
conditions is contained in the fact sheet.

Other Legal Requirements

    Oil Spill Requirements. Section 311 of the CWA, (the Act), 
prohibits the discharge of oil and hazardous materials in harmful 
quantities. Discharges that are in compliance with NPDES permits are 
excluded from the provisions of Section 311. However, the permit does 
not preclude the institution of legal action or relieve permittees from 
any responsibilities, liabilities, or penalties for other, unauthorized 
discharges of oil and hazardous materials which are covered by Section 
311 of the Act.
    Endangered Species Act. As explained at 69 FR 39478 (June 30, 
2004), EPA previously found that re-issuance of the General Permit for 
the Outer Continental Shelf of the Western Gulf of Mexico would not 
adversely affect any listed threatened or endangered species or 
designated critical habitat. EPA requested written concurrence on that 
determination from the National Marine Fisheries Service (NMFS). In a 
letter dated July 12, 2004, NMFS provided such concurrence on the 
proposed NPDES General Permit for the Western Portion of the Outer 
Continental Shelf of the Gulf of Mexico. No changes are proposed which 
would decrease the level of protection the permit affords threatened or 
endangered species. The main changes include new intake structure 
requirements and more stringent whole effluent toxicity limits based on 
sub-lethal effects. Since those changes increase the level of 
protection EPA again finds that issuance of the permit will not 
adversely affect any listed threatened or endangered species or their 
critical habitat. Concurrence with this determination will be obtained 
from NMFS before the final permit is issued.
    Ocean Discharge Criteria Evaluation. For discharges into waters of 
the territorial sea, contiguous zone, or oceans CWA section 403 
requires EPA to consider guidelines for determining potential 
degradation of the marine environment in issuance of NPDES permits. 
These Ocean Discharge Criteria

[[Page 76668]]

(40 CFR part 125, Subpart M) are intended to ``prevent unreasonable 
degradation of the marine environment and to authorize imposition of 
effluent limitations, including a prohibition of discharge, if 
necessary, to ensure this goal'' (45 FR 65942, October 3, 1980). EPA 
Region 6 has previously determined that discharges in compliance with 
the Western Gulf of Mexico Outer Continental Shelf general permit 
(GMG290000) will not cause unreasonable degradation of the marine 
environment. Since this proposed permit contains limitations which will 
protect water quality and in general reduce the discharge of toxic 
pollutants to the marine environment, the Region finds that discharges 
proposed to be authorized by the reissued general permit will not cause 
unreasonable degradation of the marine environment.
    Coastal Zone Management Act. When the current permit was issued, 
EPA determined that the activities which were authorized were 
consistent with the local and state Coastal Zone Management Plans. 
Those determinations were submitted to the appropriate State agencies 
for certification. Certification was received from the Coastal 
Management Division of the Louisiana Department of Natural Resources in 
a letter dated July 12, 2004 and from the Railroad Commission of Texas 
by a letter dated August 20, 2004. EPA has again determined that 
activities proposed to be authorized by this reissued permit are 
consistent with the local and state Coastal Zone Management Plans. The 
proposed permit and consistency determination will be submitted to the 
State of Louisiana and the State of Texas for interagency review at the 
time of public notice.
    Marine Protection, Research, and Sanctuaries Act. The Marine 
Protection, Research and Sanctuaries Act (MPRSA) of 1972 regulates the 
dumping of all types of materials into ocean waters and establishes a 
permit program for ocean dumping. In addition the MPRSA establishes the 
Marine Sanctuaries Program, implemented by the National Oceanographic 
and Atmospheric Administration (NOAA), which requires NOAA to designate 
certain ocean waters as marine sanctuaries for the purpose of 
preserving or restoring their conservation, recreational, ecological or 
aesthetic values. Pursuant to the Marine Protection and Sanctuaries 
Act, NOAA has designated the Flower Garden Banks, an area within the 
coverage of the OCS general permit, a marine sanctuary. The OCS general 
permit prohibits discharges in areas of biological concern, including 
marine sanctuaries. The current permit authorizes historic discharges 
incidental to oil and gas production from a facility which predates 
designation of the Flower Garden Banks National Marine Sanctuary as a 
marine sanctuary. EPA has previously worked extensively with NOAA to 
ensure that authorized discharges are consistent with regulations 
governing the National Marine Sanctuary. NOAA concurred on the permit 
conditions when the current permit was issued.
    State Water Quality Standards and State Certification. The permit 
does not authorize discharges to State Waters; therefore, the state 
water quality certification provisions of CWA section 401 do not apply 
to this proposed action.
    Executive Order 12866. Under Executive Order 12866 (58 FR 51735 
(October 4, 1993)) EPA 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 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; create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency; materially 
alter the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or raise 
novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order. EPA has determined that this general permit is not a 
``significant regulatory action'' under the terms of Executive Order 
12866 and is therefore not subject to formal OMB review prior to 
proposal.
    Paperwork Reduction Act. The information collection required by 
this permit has been approved by the Office of Management and Budget 
(OMB) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq., in submission made for the NPDES permit program and 
assigned OMB control numbers 2040-0086 (NPDES permit application) and 
2040-0004 (discharge monitoring reports).
    Since this permit reissuance will not significantly change the 
reporting and application requirements which are required under the 
previous Western Gulf of Mexico Outer Continental Shelf (OCS) general 
permit (GMG290000), the paperwork burdens are expected to be nearly 
identical. When it issued the previous OCS general permit, EPA 
estimated it would take an affected facility three hours to prepare the 
request for coverage and 38 hours per year to prepare discharge 
monitoring reports. It is estimated that the time required to prepare 
the request for coverage and discharge monitoring reports for the 
reissued permit will be the same and will not be affected by this 
action.
    However, the alternative to obtaining authorization to discharge 
under this general permit is to obtain an individual permit. The 
application and reporting burden of obtaining authorization to 
discharge under the general permit is expected to be significantly less 
than that under an individual permit.
    Regulatory Flexibility Act. The Regulatory Flexibility Act, 5 
U.S.C. 601 et seq., requires that EPA prepare a regulatory flexibility 
analysis for regulations that have a significant impact on a 
substantial number of small entities. As indicated below, the permit 
reissuance proposed today is not a ``rule'' subject to the Regulatory 
Flexibility Act. EPA prepared a regulatory flexibility analysis, 
however, on the promulgation of the Offshore Subcategory guidelines on 
which many of the permit's effluent limitations are based. That 
analysis shows that issuance of this permit will not have a significant 
impact on a substantial number of small entities.
    Unfunded Mandates Reform Act. Section 201 of the Unfunded Mandates 
Reform Act (UMRA), 2 U.S.C. 1501, et seq., generally requires Federal 
agencies to assess the effects of their ``regulatory actions'' on 
State, local, and tribal governments and the private sector. UMRA uses 
the term ``regulatory actions'' to refer to regulations. (See, e.g., 
UMRA section 201, ``Each agency shall * * * assess the effects of 
Federal regulatory actions * * * (other than to the extent that such 
regulations incorporate requirements specifically set forth in law)'' 
(emphasis added)). UMRA section 102 defines ``regulation'' by reference 
to section 658 of Title 2 of the U.S. Code, which in turn defines 
``regulation'' and ``rule'' by reference to section 601(2) of the 
Regulatory Flexibility Act (RFA). That section of the RFA defines 
``rule'' as ``any rule for which the agency publishes a notice of 
proposed rulemaking pursuant to section 553(b) of [the Administrative 
Procedure Act (APA)], or any other law * * *''.
    NPDES general permits are not ``rules'' under the APA and thus not

[[Page 76669]]

subject to the APA requirement to publish a notice of proposed 
rulemaking. NPDES general permits are also not subject to such a 
requirement under the CWA. While EPA publishes a notice to solicit 
public comment on draft general permits, it does so pursuant to the CWA 
section 402(a) requirement to provide ``an opportunity for a hearing.'' 
Thus, NPDES general permits are not ``rules'' for RFA or UMRA purposes.
    EPA has determined that the proposed permit reissuance would not 
contain a Federal requirement that may result in expenditures of $100 
million or more for State, local and tribal governments, in the 
aggregate, or the private sector in any one year.
    The Agency also believes that the permit would not significantly 
nor uniquely affect small governments. For UMRA purposes, ``small 
governments'' is defined by reference to the definition of ``small 
governmental jurisdiction'' under the RFA. (See UMRA section 102(1), 
referencing 2 U.S.C. 658, which references section 601(5) of the RFA.) 
``Small governmental jurisdiction'' means governments of cities, 
counties, towns, etc., with a population of less than 50,000, unless 
the agency establishes an alternative definition.
    The permit, as proposed, also would not uniquely affect small 
governments because compliance with the proposed permit conditions 
affects small governments in the same manner as any other entities 
seeking coverage under the permit. Additionally, EPA does not expect 
small governments to operate facilities authorized to discharge by this 
permit.
    National Environmental Policy Act. The Minerals Management Service 
(MMS) examined the environmental consequences of oil and gas 
exploration activities in a 2002 EIS on Gulf of Mexico OCS Oil and Gas 
Lease Sales: 2003-2007, Central Planning Area Sales 185, 190, 194, 198, 
and 201 and Western Planning Area Sales 187, 192, 196, and 200. When 
the current permit was issued, EPA has adopted that EIS and prepared a 
Supplemental Environmental Assessment (SEA) to allow for additional 
consideration and evaluation of potential impacts on the hypoxic zone 
in the Gulf of Mexico. EPA also determined that the 2004 reissuance of 
the NPDES general permit for New and Existing Sources in the Western 
Portion of the Outer Continental Shelf of the Gulf of Mexico would 
result in no significant impacts other than those considered in the MMS 
EIS. MMS is currently developing the 2007-2012 Multisale EIS for the 
Central and Western Planning Areas of the Gulf of Mexico. EPA Region 6 
is a cooperating agency on that EIS and has signed a Memorandum of 
Understanding (MOU) with MMS. EPA intends to use that EIS to fulfill 
the National Environmental Policy Act obligations for this permit 
issuance.
    Magnuson-Stevens Fisheries Conservation and Management Act. The 
Magnuson-Stevens Fisheries Conservation and Management Act requires 
federal agencies proposing to authorize actions that may adversely 
affect essential fish habitat to consult with NMFS. The entire Gulf of 
Mexico has been designated Essential Fish Habitat. EPA has adopted the 
essential fish habitat analysis in the 2002 MMS EIS referenced above 
and finds that issuance of the proposed permit will not adversely 
affect essential fish habitat.

    Dated: December 12, 2006.
Miguel I. Flores,
Director, Water Quality Protection Division, Region 6.
[FR Doc. E6-21890 Filed 12-20-06; 8:45 am]
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