[Federal Register Volume 74, Number 63 (Friday, April 3, 2009)]
[Notices]
[Pages 15267-15269]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6840]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[FRL-8785-2]
Notice of Availability of Proposed Modification of 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).
ACTION: Notice of Availability of Proposed NPDES General Permit
Modification.
-----------------------------------------------------------------------
SUMMARY: EPA Region 9 is proposing certain modifications of its 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 permit, which
was issued on September 22, 2004 (69 FR 56761), required a one-year
monitoring study for discharges of produced water, cooling water and
fire control system test water to evaluate whether these discharges
would have reasonable potential to cause or contribute to exceedances
of marine water quality criteria. For produced water, the permit
required monitoring for 26 pollutants which may be present in the
discharges. For cooling water and fire control system test water,
monitoring was required for total residual chlorine which may be used
for anti-fouling.
The monitoring study has now been completed and Region 9 is
proposing to modify the permit to include additional effluent
limitations and monitoring requirements for those discharges for which
the monitoring study showed a reasonable potential to cause or
contribute to exceedances of marine water quality criteria.
For produced water discharges, Region 9 is also proposing to modify
the water quality criterion for undissociated sulfide in the permit
based on the results of a new study submitted by the permittees
concerning the toxicity of this material to marine organisms. The
proposed effluent limitations for undissociated sulfide in the modified
general permit would be based on the modified water quality criterion.
DATES: Comments on the proposed permit modifications must be received
or postmarked no later than May 4, 2009.
ADDRESSES: Public comments on the proposed permit modifications may be
submitted by U.S. Mail to: Environmental Protection Agency, Region 9,
Attn: Lisa Honor, NPDES Permits Office (WTR-5), 75 Hawthorne Street,
San Francisco, California 94105-3901, or by e-mail to:
[email protected].
FOR FURTHER INFORMATION CONTACT: Eugene Bromley, EPA Region 9, NPDES
Permits Office (WTR-5), 75 Hawthorne Street, San Francisco, California
94105-3901, or telephone (415) 972-3510. A copy of the proposed permit
modifications and fact sheet will be provided upon request and is also
available on Region 9's Web site at http://www.epa.gov/region09/water/.
Additional information concerning the general permit overall is
available in the fact sheet accompanying the final issuance of the
general permit on September 22, 2004. The 2004 general permit and fact
sheet are available on Region 9's Web site at http://www.epa.gov/region09/water/.
Administrative Record: The proposed permit modifications 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,
NPDES Permits Office (WTR-5), 75 Hawthorne Street, San Francisco, CA
94105-3901.
SUPPLEMENTARY INFORMATION:
A. Reasonable Potential Monitoring Study. Among other factors, the
Ocean Discharge Criteria regulations (40 CFR part 125, subpart M)
require a consideration of marine water quality criteria for discharges
to the ocean permitted under the NPDES permit program. In considering
these criteria, particularly in determining permit conditions that
would be needed to support a determination the resulting discharges
will not cause unreasonable degradation of the marine environment, the
permit included a study requirement using the statistical procedures
EPA uses in determining the need for water quality-based effluent
limits for point source discharges to waters of the United States,
including the territorial seas. The study, captioned the ``reasonable
potential monitoring study,'' was required in order to determine
whether the ocean discharges regulated under the permit would cause, or
have the reasonable potential to cause, or contribute to non-attainment
of marine water quality criteria at the boundary of the mixing zone,
which is the location identified in the Ocean Discharge Criteria
regulations at 40 CFR 125.123(d)(1).
General permit No. CAG28000 included the study requirement because
at the time of the issuance insufficient data were available to
evaluate the reasonable potential for discharges of produced water,
cooling water and fire control system test water to cause or contribute
to exceedances of the marine water quality criteria for pollutants
Region 9 had identified as potentially present in the discharges. The
permit's study requirements were derived from the statistical
procedures explained in EPA's Technical Support Document for Water
Quality-Based Toxics Control (TSD) (EPA/505/2-90-001). EPA explained in
the permit if a discharge demonstrated the reasonable potential to
cause non-attainment of a marine water quality criterion at the
boundary of a mixing zone, the permit could be reopened and modified to
include additional effluent limitations and monitoring requirements to
ensure compliance with the water quality criteria. Today Region 9 is
proposing to reopen and modify the general permit to include such
additional limitations and requirements, thus enabling its
determination the authorized discharges will not cause unreasonable
degradation of the marine environment.
For produced water, the permit required monitoring monthly during
the first year of the permit for 26 pollutants of concern Region 9 had
identified as potentially present in the discharges. For cooling water
and fire control system test water, monitoring was also required
monthly during the first year for total residual chlorine which is used
at some platforms as an anti-fouling agent. Monitoring results were due
by
[[Page 15268]]
March 1, 2006 and were submitted for all platforms in a timely manner.
The permit also required the submittal of an analysis by March 1, 2006,
using statistical procedures in the TSD, of the reasonable potential of
the discharges to cause or contribute to non-attainment of the
previously specified marine water quality criteria. These analyses also
were submitted for all platforms in a timely manner.
The general permit authorizes discharges from 22 offshore
platforms. However, only 15 of the platforms discharge produced water.
Thirteen of the platforms showed reasonable potential to exceed
applicable marine water quality criteria for one or more of the 26
pollutants monitored in produced water; the applicable water quality
criteria used were the more stringent of CWA section 304(a) criteria or
the California Ocean Plan objectives as required by the 2004 final
general permit. One of the platforms (Platform Irene) rarely discharges
produced water and the operator had not collected the minimum number of
samples (which is ten samples) recommended by the TSD to do a
reasonable potential analysis. Moreover, the discharges measured for
this platform were from small scale pilot tests of potential produced
water treatment systems which may not be representative of future
discharges resulting from the treatment system ultimately installed.
Thus, Region 9 is deferring action on this platform until the general
permit is reissued in 2009. Until then, for the majority of the
pollutants addressed by the reasonable potential study, Platform Irene
would continue to be subject to effluent limits in its previous
individual permit, and the platform would continue to conduct
monitoring for all 26 of the pollutants as required by Part II.B.1.b.2
of the general permit.
Seven of the 22 platforms use chlorine in cooling water or fire
control system test water. Six of the seven platforms showed a
reasonable potential to cause non-attainment of the marine water
quality criteria for chlorine.
Proposed effluent limitations and monitoring requirements to
control the pollutants in the above discharges and ensure compliance
with marine water quality criteria are discussed in section C below.
B. Modified Water Quality Criterion for Undissociated Sulfide. The
general permit provides a permittee may request a modified criterion
for a pollutant of concern in produced water discharges based on
additional studies of the toxicity of the pollutant. On April 20, 2006,
several permittees operating under the general permit requested a
modification of the criterion in the permit for undissociated sulfide
(2 [mu]g/l). The permittees requested a modified criterion of 12 [mu]g/
l based on a new study of the toxicity of this material to marine
organisms. Region 9 reviewed the new study and believes a revised
criterion of 5.79 [mu]g/l is justified by the data (rather than 12
[mu]g/l). Region 9 is proposing to modify the water quality criterion
in the permit for undissociated sulfide to 5.79 [mu]g/l. The proposed
effluent limitations for undissociated sulfide discussed below are
based on the revised criterion of 5.79 [mu]g/l for this material.
C. Proposed Effluent Limitations and Monitoring Requirements. Using
the procedures in the TSD, Region 9 calculated effluent limitations for
the pollutants in discharges of produced water, cooling water and fire
control system test water for which reasonable potential was determined
to exist based on the monitoring study. For produced water, these
effluent limitations are found in a new Appendix C which is proposed to
be added to the general permit. For cooling water and fire control
system test water, the effluent limitations are found in a new Appendix
D which would be added to the permit.
Monitoring once per quarter would also be required for the
pollutants with reasonable potential in each of the discharges. The
monitoring results would be reported in the quarterly discharge
monitoring reports. For pollutants with no reasonable potential in
produced water, monitoring once during the remainder of the permit term
would be required as set forth in Part II.B.1.e.3 of the general
permit.
D. Requirements Related to the Coastal Zone Management Act. The
Coastal Zone Management Act (CZMA) requires Federal activities and
projects affecting the coastal zone of a state, including Federally
permitted activities, must be consistent with an approved state Coastal
Management Plan (CMP) (CZMA Sections 307(c)(1) through (3)). California
has a CMP which was approved in 1978; the CZMA authority is the
California Coastal Commission (CCC).
In accordance with revised regulations implementing the CZMA (71 FR
788, January 5, 2006), the issuance of a general NPDES permit by EPA is
considered a ``Federal agency activity'' covered by CZMA Section
307(c)(1), and CZMA regulations at 15 CFR Subpart C. The regulations at
15 CFR 930.31(e) further clarify the modification of a general permit
which could affect any coastal use or resource is also subject to a
consistency review under Subpart C.
Region 9 believes the proposed permit modification could affect
coastal uses or resources of the State of California. Region 9 also
believes the proposed permit modification would be consistent with the
CMP. Region 9 recently submitted a consistency certification to the CCC
for the proposed permit modification.
In accordance with 15 CFR 930.31(d), if the CCC concurs with the
permit modification, the modification could become effective for all
platforms without additional review of individual platforms by the CCC.
However, if the CCC objects to the permit modification, the
modification would not become effective for a given platform until an
individual consistency certification had been submitted by the
permittee and concurred upon by the CCC, or the Secretary of Commerce
had overridden a CCC objection. The effective date for the proposed
permit modification makes allowance for these regulatory requirements.
E. Permit Modification Appeal Procedures. Within 120 days following
notice of EPA's final decision for the general permit modification
under 40 CFR 124.15, any interested person may appeal the permit
decision 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 as modified on May 15, 2000, 65 FR
30886).
F. Compliance with the Regulatory Flexibility Act for General
Permits. 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 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.
The legal question of whether a general permit (including a general
permit modification), as opposed to an individual permit qualifies as a
``rule'' or as an ``adjudication'' under the Administrative Procedure
Act (APA) has been the subject of periodic
[[Page 15269]]
litigation. In a recent case, the court held that the CWA Section 404
Nationwide general permit before the court did qualify as a ``rule''
and therefore that the issuance of the general permit needed to comply
with the applicable legal requirements for the issuance of a ``rule.''
National Ass'n of Home Builders v. US Army Corps of Engineers, 417 F.3d
1272, 1284-85 (DC Cir.2005) (Army Corps general permits under Section
404 of the Clean Water Act are rules under the APA and the Regulatory
Flexibility Act; ``Each NWP [nationwide permit] easily fits within the
APA's definition of a `rule.' * * * As such, each NWP constitutes a
rule * * *'').
As EPA stated in 1998, ``the Agency recognizes that the question of
the applicability of the APA, and thus the RFA, to the issuance of a
general permit is a difficult one, given the fact that a large number
of dischargers may choose to use the general permit.'' 63 FR 36489,
36497 (July 6, 1998). At that time, EPA ``reviewed its previous NPDES
general permitting actions and related statements in the Federal
Register or elsewhere,'' and stated that ``[t]his review suggests that
the Agency has generally treated NPDES general permits effectively as
rules, though at times it has given contrary indications as to whether
these actions are rules or permits.'' Id. at 36496. Based on EPA's
further legal analysis of the issue, the Agency ``concluded, as set
forth in the proposal, that NPDES general permits are permits [i.e.,
adjudications] under the APA and thus not subject to APA rulemaking
requirements or the RFA.'' Id. Accordingly, the Agency stated that
``the APA's rulemaking requirements are inapplicable to issuance of
such permits,'' and thus ``NPDES permitting is not subject to the
requirement to publish a general notice of proposed rulemaking under
the APA or any other law * * * [and] it is not subject to the RFA.''
Id. at 36497.
However, the Agency went on to explain that, even though EPA had
concluded that it was not legally required to do so, the Agency would
voluntarily perform the RFA's small-entity impact analysis. Id. EPA
explained the strong public interest in the Agency following the RFA's
requirements on a voluntary basis: ``[The notice and comment] process
also provides an opportunity for EPA to consider the potential impact
of general permit terms on small entities and how to craft the permit
to avoid any undue burden on small entities.'' Id. Accordingly, with
respect to the NPDES permit that EPA was addressing in that Federal
Register notice, EPA stated that ``the Agency has considered and
addressed the potential impact of the general permit on small entities
in a manner that would meet the requirements of the RFA if it
applied.'' Id.
Subsequent to EPA's conclusion in 1998 that general permits are
adjudications, rather than rules, as noted above, the DC Circuit
recently held that Nationwide general permits under section 404 are
``rules'' rather than ``adjudications.'' Thus, this legal question
remains ``a difficult one'' (supra). However, EPA continues to believe
that there is a strong public policy interest in EPA applying the RFA's
framework and requirements to the Agency's evaluation and consideration
of the nature and extent of any economic impacts that a CWA general
permit could have on small entities (e.g., small businesses). In this
regard, EPA believes that the Agency's evaluation of the potential
economic impact that a general permit would have on small entities,
consistent with the RFA framework discussed below, is relevant to, and
an essential component of, the Agency's assessment of whether a CWA
general permit would place requirements on dischargers that are
appropriate and reasonable. Furthermore, EPA believes that the RFA's
framework and requirements provide the Agency with the best approach
for the Agency's evaluation of the economic impact of general permits
on small entities. While using the RFA framework to inform its
assessment of whether permit requirements are appropriate and
reasonable, EPA will also continue to ensure that all permits satisfy
the requirements of the Clean Water Act.
Accordingly, EPA has committed that the Agency will operate in
accordance with the RFA's framework and requirements during the
Agency's issuance of CWA general permits (in other words, the Agency
commits that it will apply the RFA in its issuance of general permits
as if those permits do qualify as ``rules'' that are subject to the
RFA). In satisfaction of this commitment, during the course of this
general offshore oil and gas exploration, development and production
operations permit proceeding, the Agency conducted the analysis and
made the appropriate determinations that are called for by the RFA. In
addition, and in satisfaction of the Agency's commitment, EPA will
apply the RFA's framework and requirements in any future issuance of
other NPDES general permits. EPA anticipates that for most general
permits the Agency will be able to conclude that there is not a
significant economic impact on a substantial number of small entities.
In such cases, the requirements of the RFA framework are fulfilled by
including a statement to this effect in the permit fact sheet, along
with a statement providing the factual basis for the conclusion. A
quantitative analysis of impacts would only be required for permits
that may affect a substantial number of small entities, consistent with
EPA guidance regarding RFA certification.\1\
---------------------------------------------------------------------------
\1\ EPA's current guidance, entitled Final Guidance for EPA
Rulewriters: Regulatory Flexibility Act as Amended by the Small
Business Regulatory Enforcement and Fairness Act, was issued in
November 2006 and is available on EPA's Web site: http://www.epa.gov/sbrefa/documents/rfafinalguidance06.pdf. After
considering the Guidance and the purpose of CWA general permits, EPA
concludes that general permits affecting less than 100 small
entities do not have a significant economic impact on a substantial
number of small entities.
---------------------------------------------------------------------------
G. Analysis of Economic Impacts of the General Permit for Offshore
Oil and Gas Exploration, Development and Production Operations off
Southern California. EPA determined, in consideration of the discussion
in Section F above, the issuance of the general permit for offshore oil
and gas exploration, development and production operations off Southern
California would not have a significant economic impact on a
substantial number of small entities. There are only 22 offshore
platforms which could be affected by the proposed general permit
modification. EPA concludes since this general permit affects less than
100 small entities, EPA believes it does not have a significant
economic impact on a substantial number of small entities. Accordingly,
EPA concludes a quantitative analysis of impacts is not required for
this permit.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: March 12, 2009.
Alexis Strauss,
Director, Water Division, Region 9.
[FR Doc. E9-6840 Filed 4-2-09; 8:45 am]
BILLING CODE 6560-50-P