[Federal Register Volume 74, Number 249 (Wednesday, December 30, 2009)]
[Notices]
[Pages 69088-69090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30852]
[[Page 69088]]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9094-7]
Notice of Draft National Pollutant Discharge Elimination System
(NPDES) General Permit for the Eastern Portion of Outer Continental
Shelf (OCS) of the Gulf of Mexico (GEG460000); Availability of
Preliminary Finding of No Significant Impact (FNSI) and Environmental
Assessment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Proposed Reissuance of NPDES General Permit, Notice
to States of Mississippi, Alabama and Florida for Consistency Review
with approved Coastal Management Programs.
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SUMMARY: The Regional Administrator of EPA Region 4 (the ``Region'') is
today proposing to reissue the National Pollutant Discharge Elimination
System (NPDES) general permit for the Outer Continental Shelf (OCS) of
the Gulf of Mexico (General Permit No. GMG460000) for discharges in the
Offshore Subcategory of the Oil and Gas Extraction Point Source
Category (40 Code of Federal Regulations (CFR) Part 435, subpart A).
The existing permit, issued by EPA Region 4 and published at 69 FR
76740 on December 22, 2004, authorizes discharges from exploration,
development, and production facilities located in and discharging, to
all Federal waters of the eastern portion of the Gulf of Mexico seaward
of the outer boundary of the territorial seas. Today's draft NPDES
permit covers existing and new source facilities with operations
located on Federal leases occurring in water depths seaward of 200
meters, occurring offshore the coasts of Alabama and Florida. The
western boundary of the coverage area is demarcated by Mobile and
Visoca Knoll lease blocks located seaward of the outer boundary of the
territorial seas from the coasts of Mississippi and Alabama. Individual
permits will be issued for operating facilities on lease blocks
traversed by and shoreward of the 200 meter water depth.
DATES: Comments on this proposed action must be received by January 29,
2010.
ADDRESSES: Comments should be sent the Water Protection Division, U.S.
EPA- Region 4, Municipal and Industrial NPDES Section, Sam Nunn Atlanta
Federal Center, 61 Forsyth Street, SW., Atlanta, GA 30303-8960,
Attention: Ms. Karrie-Jo Robinson-Shell.
FOR FURTHER INFORMATION CONTACT: Ms. Karrie-Jo Robinson-Shell, Offshore
Oil and Gas Contact, at telephone (404) 562-9308 or at the following
address: Water Protection Division, Municipal and Industrial NPDES
Section, U.S. EPA, Region 4, Sam Nunn Atlanta Federal Center, 61
Forsyth Street, SW., Atlanta, GA 30303-8960.
SUPPLEMENTARY INFORMATION: As proposed, this draft NPDES general permit
includes, best conventional pollutant control technology (BCT), and
best available technology economically achievable (BAT) limitations for
existing sources and new source performance standards (NSPS)
limitations for new sources as promulgated in the effluent guidelines
for the offshore subcategory at 58 FR 12454 and amended at 66 FR 6850
(March 4, 1993 and January 22, 2001, respectively). The draft permit
also includes the following changes to the expiring permit: (1)
Requirements were included to permittees to comply with cooling water
intake structure regulations per 40 CFR Part 125-subpart N
(Requirements Applicable to Cooling Water Intake Structures for New
Offshore Oil and Gas Extraction Facilities Under Section 316(b) of the
Clean Water Act); (2) Best Management Practices (BMP) Plan requirements
were changed to incorporate measures to address discharges of debris
from blasting and painting activities; (3) Modified ISO Test Method
11734, Protocol For The Determination of Degradation of Non-Aqueous
Base Fluids in a Marine Closed Bottle Biodegradation Test System, was
included in order to clarify testing procedures; (4) rounding
procedures were included to clarify reporting requirements for ratio
values used to report compliance with the sediment toxicity and
biodegradation tests; and (5) the requirement to perform a Seabed
Survey was deleted since the industry completed this study during the
term of the existing permit. Other minor changes in wording were made
to clarify EPA's intent regarding the permit's requirements.
Under 40 CFR Part 6, EPA Region 4 is also making available a
Preliminary Finding of No Significant Impact (FNSI) and an
Environmental Assessment (EA) for review during the 30 day public
comment period for this general permit. The EA addresses potential
impacts from proposed changes to the general permit and it considers
recent technical studies.
I. Procedures for Reaching a Final Permit Decision
Pursuant to 40 CFR 124.13, any person who believes any condition of
the permit is inappropriate must raise all reasonably ascertainable
issues and submit all reasonably available arguments in full,
supporting their position, by the close of the comment period. All
comments on the draft NPDES general permit, the preliminary FNSI and
the EA received within the 30-day comment period will be considered in
the formulation of final determination regarding the National
Environmental Pollution Act (NEPA) review and the permit reissuance.
After consideration of all written comments and the requirements and
policies in the CWA and appropriate regulations, the EPA Regional
Administrator will make a determination regarding the EA/FNSI and
permit reissuance. If the determination results in a permit that is
substantially unchanged from the draft permit announced by this notice,
the Regional Administrator will so notify all persons submitting
written comments. If the determination results in a permit that is
substantially changed, the Regional Administrator will issue a public
notice indicating the revised determination.
A formal hearing is available to challenge any NPDES permit issued
according to the regulations at 40 CFR 124.15, except for a general
permit as cited at 40 CFR 124.71. 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 as authorized at 40 CFR 122.28, and then request a
formal hearing on the issuance or denial of an individual permit.
Additional information regarding these procedures is available by
contacting Mr. Paul Schwartz, Associate Regional Counsel Office of
Environmental Accountability, at (404) 562-9576.
II. Procedures for Obtaining General Permit Coverage
Notice of Intent requirements for obtaining coverage for operating
facilities are stated in Part I Section A.4 of the general permit.
Coverage under the reissued general permit is effective upon receipt of
notification of coverage with an assignment of an NPDES general permit
number from the EPA-Region 4, Director of the Water Protection
Division. EPA will act on the Notice of Intent (NOI) within a
reasonable period of time.
[[Page 69089]]
III. Exclusion of Non-Operational Leases
This permit does not apply to non-operational leases, i.e., those
on which no discharge has taken place in the two (2) years prior to the
effective date of the reissued general permit. EPA will not accept NOIs
for such leases, and the general permit will not cover such leases.
Non-operational leases will lose coverage under the previous general
permit on the effective date of the reissued general permit. No
subsequent exploration, development or production activities may take
place on these leases until and unless the lessee has obtained coverage
under the new general permit or an individual permit. EPA will not
accept an NOI or individual permit application for non-operational or
new acquired leases until such time as an Exploration Plan Document or
the Development Operations Coordination Document has been prepared and
submitted to Minerals Management Service.
IV. State Water Quality Certification
Because State waters are not included in the area covered by the
OCS general permit, its effluent limitations and monitoring
requirements are not subject to State water quality certification under
CWA Section 401. However, the States of Alabama, Florida and
Mississippi have been provided a copy of this draft general permit,
Preliminary FNSI and EA to review and submit comments. Copies of these
documents have also been provided to EPA Headquarters for their review.
V. State Consistency Determination
This Notice will also serve as Region 4's requirement under the
Coastal Zone Management Act (CZMA) to provide all necessary information
for the States of Mississippi, Alabama and Florida to review this
action for consistency with their approved Coastal Management Programs.
A copy of the consistency determination on the proposed activities is
being sent to each affected State, along with a letter of this FR
notice, which provides the EPA Web site where electronic copies can be
obtained of the draft NPDES general permit, permit fact sheet,
preliminary Ocean Discharge Criteria Evaluation, a Preliminary FNSI,
and EA. Other relevant information for their review is available upon
request from each State. Comments regarding State Consistency are
invited in writing within 30 days of this notice to the Water
Protection Division, U.S. EPA-Region 4, Municipal and Industrial NPDES
Permits Section, Sam Nunn Atlanta Federal Center, 61 Forsyth Street,
SW., Atlanta, GA 30303-8960, Attention: Ms. Karrie-Jo Robinson-Shell.
VI. Public Comment Period and Public Hearings
The public comment period for the draft NPDES permit, preliminary
FNSI and EA will begin on the date of publication of this notice and
end 30 calendar days later.
VII. Administrative Record
The draft NPDES general permit, permit fact sheet, Preliminary
FNSI, EA and other relevant documents are on file and may be inspected
any time between 8:15 a.m. and 4:30 p.m., Monday through Friday at the
address shown below. Copies of the draft NPDES general permit, permit
fact sheet, Preliminary FNSI, EA and other relevant documents may be
obtained by writing the U.S. EPA-Region 4, Water Protection Division,
Municipal and Industrial NPDES Section, Sam Nunn Atlanta Federal
Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960, Attention:
Ms. Karrie-Jo Robinson-Shell, or by calling (404) 562-9308. A hard copy
of the Preliminary FNSI and EA may be obtained by calling Traci Buskey
at (404) 562-8284. Alternatively, copies of the draft NPDES general
permit, permit fact sheet, Preliminary FNSI and EA may be downloaded at
http://www.epa.gov/region4/water/permits.
VIII. Executive Order 12866
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may: (1) Have an annual effect on the economy of $100 million
or more or adversely affect in a material way the economy, a sector of
the economy, productivity, competition, jobs, the environment, public
health, or safety, or State, local, or Tribal governments or
communities; (2) create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order. OMB has exempted review of NPDES general permits under the terms
of Executive Order 12866.
IX. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rule making requirements under the Administrative
Procedures Act (APA) or any other statute, unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small organizations, and small governmental jurisdictions.
Issuance of an NPDES general permit is not subject to rule making
requirements, including the requirement for a general notice of
proposed rule making, under APA Section 533 or any other law, and is
thus not subject to the RFA requirements.
The APA defines two broad, mutually exclusive categories of agency
action--``rules'' and ``orders.'' APA Section 551(4) defines rule as
``an agency statement of general or particular applicability and future
effect designed to implement, interpret or prescribe law or policy or
describing the organization, procedure, or practice or requirements of
an agency . . .'' APA Section 551(6) defines orders as ``a final
disposition . . . of an agency in a matter other than rule making but
including licensing.'' APA Section 551(8) defines ``license'' to
``include . . . an agency permit . . .'' The APA thus categorizes a
permit as an order, which by the APA's definition is not a rule.
Section 553 of the APA establishes ``rule making'' requirements. APA
Section 551(5) defines ``rule making'' as ``the agency process for
formulating, amending, or repealing a rule.'' By its terms, Section 553
applies only to rules and not to orders, exempting by definition
permits.
X. 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'' to refer to regulations. (See,
e.g., UMRA Section 401, ``Each agency shall . . . assess the effects of
Federal regulatory actions . . . (other than to the extent that such
regulations incorporate requirements specifically set forth in law).'')
UMRA Section 102 defines ``regulation'' by reference to 2 U.S.C. 658
which in turn defines ``regulation'' and ``rule'' by reference to
Section 601(2) of the RFA. That section of the RFA defines ``rule'' as
``any rule for which the agency publishes a notice of proposed rule
making pursuant to Section 553(b) of the APA, or any other law.''
[[Page 69090]]
As discussed in the RFA section of this notice, NPDES general
permits are not ``rules'' by definition under the APA and thus not
subject to the APA requirement to publish a notice of proposed rule
making. NPDES general permits are also not subject to such a
requirement under the CWA. While EPA publishes a notice to solicit
public comment on draft general permits, it does so pursuant to the CWA
Section 402(a) requirement to provide an opportunity for a hearing.
Therefore, NPDES general permits are not ``rules'' for RFA or UMRA
purposes.
XI. Paperwork Reduction Act
The information collection required by this permit has been
approved by 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 [(NPDES Discharge Monitoring Reports (DMRs)].
Since this permit is very similar in reporting and application
requirements and in discharges which are required to be monitored as
the previous Eastern Gulf of Mexico OCS general permit (GMG460000) 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 DMRs. It is estimated that the time
required to prepare the request for coverage and DMRs for the reissued
permit will be approximately the same.
Dated: December 11, 2009.
James D. Giattina,
Director, Water Protection Division.
[FR Doc. E9-30852 Filed 12-29-09; 8:45 am]
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