01-1829. Notice of Proposed NPDES General Permit for Discharges From the Coastal Subcategory of the Oil and Gas Extraction Point Source Category in Texas (TXG330000)

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of draft NPDES general permit.

SUMMARY:

EPA Region 6 is proposing to reissue General NPDES Permit No. TXG330000 regulating discharges from oil and gas wells in the Coastal Subcategory of the Oil and Gas Extraction Point Source Category in Texas. Most of the requirements in this proposed permit are the same as in the previous permit having an effective date of October 21, 1993 and expiration date of October 21, 1998. The main differences between the previous permit and this proposed permit are: discharges from New Sources are authorized by this permit, there are changes in the requirements for treated waste water from drilling fluids/cuttings and dewatering effluent, and changes in the requirements for well treatment, completion and workover fluids. These permit requirement changes are the result of incorporating additional or more stringent requirements contained in effluent limitations guidelines for the Coastal Subcategory contained in 40 CFR part 435, subpart D.

Additionally, EPA Region 6 is proposing to reissue NPDES General Permit TXG290000, regulating produced water and produced sand discharges to coastal water in Texas, and combine that permit with NPDES General Permit TXG330000. Permit No. TXG330000 previously regulated all discharges from wells in the Coastal Subcategory of the Oil and Gas Extraction Point Source Category, except for produced water and produced sand. Combining these two permits will, thereby, allow regulation of all discharges from Coastal Subcategory wells in one permit. General Permit TXG290000 also regulated the discharge of produced water from wells in the Stripper and Offshore Subcategories which discharged into coastal waters of Texas. Regulation of that produced water will also be incorporated into General Permit TXG330000.

DATES:

Comments on this proposed permit must be submitted by March 23, 2001.

ADDRESSES:

Comments on this proposed permit should be sent to the Regional Administrator, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733.

FOR FURTHER INFORMATION CONTACT:

Ms. Diane Smith, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone [phone]. Copies of the complete fact sheet and proposed permit may be obtained from Ms. Smith. The fact sheet and proposed permit can also be found on the Internet at http://www.epa.gov/​earth1r6/​6wq/​6wq.htm. In addition, the 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 advanced notice.

SUPPLEMENTARY INFORMATION:

Regulated categories and entities include:

Category	Examples of regulated entities
Industry	Operators of oil and gas wells in the Coastal Subcategory of the Oil and Gas Extraction Point Source Category.

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your (facility, company, business, organization, etc.) is regulated by this action, you should carefully examine the applicability criteria in part I, section A.1 of this permit. 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.

Section 301(a) of the Clean Water Act (CWA or the Act), 33 U.S.C. 1311(a), makes it unlawful to discharge pollutants to waters of the United States in the absence of authorizing permits. CWA section 402, 33 U.S.C. 1342, authorizes EPA to issue National Discharge Elimination System (NPDES) permits allowing discharges on condition they will meet certain requirements, including CWA sections 301, 304, and 401 (33 U.S.C. 1331, 1314 and 1341). Those statutory provisions require that NPDES permits include effluent limitations requiring that authorized discharges: (1) Meet standards reflecting levels of technological capability, (2) comply with EPA-approved state water quality standards and (3) comply with other state requirements adopted under authority retained by states under CWA 510, 33 U.S.C. 1370.

Two types of technology-based effluent limitations must be included in the permit proposed here. With regard to conventional pollutants, i.e., pH, BOD, oil and grease, TSS and fecal coliform, CWA section 301(b)(1)(E) requires effluent limitations based on “best conventional pollution control technology” (BCT). With regard to nonconventional and toxic pollutants, CWA section 301(b)(2)(A), (C), and (D) require effluent limitations based on “best available pollution control technology economically achievable” (BAT), a standard which generally represents the best performing existing technology in an industrial category or subcategory. BAT and BCT effluent limitations may never be less stringent than corresponding effluent limitations based on best practicable control technology (BPT), a standard applicable to similar discharges prior to March 31, 1989 under CWA 301(b)(1)(A).

National guidelines establishing BCT, BAT and New Source Performance Standards have been promulgated for discharges from facilities in the Coastal Subcategory of the Oil and Gas Extraction Point Source Category. The final rule for these guidelines was published in the Federal Register at 61 FR 66086 on December 16, 1996. These guidelines can also be found at 40 CFR part 435, subpart D. The current proposal is to reissue NPDES General Permit TXG330000 which was issued in the Federal Register at 58 FR 49126 with an effective date of October 21, 1993, and an expiration date of October 21, 1998. Additionally, NPDES General Permit TXG290000, regulating produced water and produced sand discharges to coastal waters in Texas, will be reissued and combined with NPDES General Permit TXG330000. General Permit TXG290000 had an effective date of February 8, 1995 and an expiration date of February 7, 2000. Since these expired permits were issued before the BCT and BAT guidelines were promulgated, BCT and BAT requirements were based on best professional judgement. The current proposed permit incorporates the BCT, BAT and New Source Performance Standards from 40 CFR part 435, subpart D.

Changes From the Expiring Permit

Although the 40 CFR part 435, subpart D, requirements are mostly the same as those in the expiring permits which were derived using best professional judgement, requirements for several waste streams are more stringent. The proposed permit, therefore, incorporates those more stringent guidelines limits. Specifically, the discharge of well treatment, completion and workover fluids is now prohibited. In addition, the discharge of dewatering effluent from reserve pits which received drilling fluids and/or drill cuttings after January 15, 1997, is prohibited. Since the guidelines do not address reserve pits which did not receive drilling fluids and/or drill cuttings after January 15, 1997, the limits in the previous permit apply, with one exception. In the previous permit, the No Free Oil limit was to be measured by a visual sheen test with the option of using the static sheen test. Since the guidelines require the use of the static sheen test for all No Free Oil limits except for deck drainage, the No Free Oil requirement for the reserve pit dewatering effluent discharges and the formation test fluid discharges has been changed to use of the static sheen test only. The proposed permit also authorizes discharges from new source facilities, whereas, the expiring permit does not.

Summary of Proposed Permit Limitations

A. Drilling fluids—No Discharge.

B. Drill cuttings—No Discharge.

C. Produced water—No Discharge.

Exception: Facilities in the Stripper Subcategory located east of the 98th meridian whose produced water comes from the Carrizo/Wilcox, Reklaw or Bartosh formations in Texas and whose produced water does not exceed 3000 mg/l Total Dissolved Solids shall meet the following limits: 25 mg/l monthly average and 35 mg/l daily maximum for oil and grease.

D. Produced sand—No discharge.

E. Dewatering effluent—No Discharge.

Exception: Dewatering effluent from reserve pits which have not received drilling fluids and/or drill cuttings since January 15, 1997, shall meet the following limits:

Free oil—No Discharge as determined by the static sheen test

Oil and grease—15 mg/l daily maximum

TSS—50 mg/l daily maximum

TDS—3000 mg/l daily maximum, except for discharges to tidally influenced watercourses if the TDS of the treated reserve pit effluent does not exceed the TDS concentration of the receiving water at the point of discharge at the time of discharge.

COD—200 mg/l daily maximum

pH-6.0-9.0 Std. Units

Chlorides—500 mg/l daily maximum (discharges to inland areas) and 1000 mg/l daily maximum (discharges to tidally influenced water courses). Chloride concentration may exceed 1000 mg/l in tidally influenced watercourses (downstream of the upper limit of saltwater intrusion) if the chloride concentration of the treated reserve pit effluent does not exceed the chloride concentration of the receiving water at the point of discharge at the time of discharge.

Hazardous metals—The discharge must not contain concentrations of the substances classified as “hazardous metals” in excess of the levels allowed by TAC 319.21)

F. Deck drainage—No discharge of free oil as determined by the presence of a film or sheen upon or a discoloration of the surface of the receiving water (visual sheen).

G. Formation test fluids—No Discharge except to bays and estuaries where no chloride standards have been established.

Where discharges are allowed:

Free oil—No Discharge as determined by the static sheen test.

pH-6.0-9.0 Std. Units

H. Well treatment, completion and workover fluids—No Discharge.

I. Sanitary waste—

No floating solids

BOD5-45 mg/l daily maximum

TSS-45 mg/l daily maximum

Fecal coliform—200/100 ml daily maximum

J. Domestic waste—No Discharge of floating solids or garbage or foam.

K. Miscellaneous discharges: Desalinization unit discharge; blowout preventer fluid;uncontaminated ballast and bilge water; mud, cuttings and cement at the sea floor; boiler blowdown; excess cement slurry; diatomaceous earth filter media; uncontaminated water—Discharge of free oil is prohibited as determined by a visual sheen on the surface of the receiving water. Discharge is authorized only at times when visual sheen observation is possible. Discharge may occur at any time if the operator uses the static sheen method for detecting free oil.

Other Legal Requirements

A. State Certification

Under section 401(a)(1) of the Act, EPA may not issue an NPDES permit until the State in which the discharge will originate grants or waives certification to ensure compliance with appropriate requirements of the Act and State law. Section 301(b)(1)(C) of the Act requires that NPDES permits contain conditions that ensure compliance with applicable state water quality standards or limitations. The proposed permit contains limitations intended to ensure compliance with state water quality standards and has been determined by EPA Region 6 to be consistent with the Texas water quality standards and the corresponding implementation plan. The Region has solicited certification from the Railroad Commission of Texas.

B. National Environmental Policy Act

EPA's regulations at 40 CFR part 6, subpart F, which implement the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C 4331, et seq., provide the procedures for carrying out the NEPA environmental review process for the issuance of new source NPDES permits. The purpose of this review process is to determine if any significant environmental impacts are anticipated by issuance of NPDES permits authorizing discharges from new sources. In order to make this determination, EPA has prepared an environmental assessment in accordance with 40 CFR 6.604. Based on this environmental assessment document, EPA has determined that there will be no significant impact as the result of issuing today's proposed permit adding coverage of discharges from new sources. EPA is, therefore, proposing to issue a Finding of No Significant Impact in accordance with 40 CFR part 6 procedures concerning adding new source coverage to this general permit.

C. Endangered Species Act

When EPA issued the previous Permit TXG330000, effective October 21, 1993, covering existing sources, but not New Sources, the United States Fish and Wildlife Service concurred with EPA's finding that the permit was unlikely to adversely affect any threatened or endangered species or its critical habitat. When EPA issued Permit TXG290000, effective February 8, 1995, the Service also concurred with EPA's finding that the permit was unlikely to adversely affect any threatened or endangered species or its critical habitat. As discussed previously in this Fact Sheet, the proposed permit requirements are the same as, and in some instances more stringent than, those in the previous permit. Furthermore, the proposed limits are sufficiently stringent to assure state water quality standards will be met. The effluent limitations established in these permits ensure protection of aquatic life and maintenance of the receiving water as an aquatic habitat. The Region, therefore, finds that adding New Source coverage to the permit is also unlikely to adversely affect any threatened or endangered species or its critical habitat. EPA is seeking written concurrence from the United States Fish and Wildlife Service and the National Marine Fisheries Service on this determination.

D. Magnuson-Stevens Fishery Conservation and Management Act

The 1996 amendments to the Magnuson-Stevens Fishery Conservation and Management Act set forth a new mandate to identify and protect important marine and anadromous fisheries habitats. The purpose of addressing habitat in this act is to further the goal of maintaining sustainable fisheries. Guidance and procedures for implementing these amendments are contained in National Marine Fisheries Service regulations (50 CFR 600.805-600.930). These regulations specify that any Federal agency that authorizes or proposes to authorize an activity which would adversely affect an Essential Fish Habitat is subject to the consultation provisions of the Manguson-Stevens Act. The Texas Coastal Subcategory areas covered by this general permit include Essential Fish Habitat designated under the Magnuson-Stevens Act.

Based on the prohibitions and limitations and other requirements contained in this proposed general permit, as well as the Essential Fish Habitat Assessment prepared for this permit reissuance, the Region finds that adoption of the proposed permit is unlikely to adversely affect Essential Fish Habitat. EPA is seeking written concurrence from the National Marine Fisheries Service on this determination.

E. Coastal Zone Management Act

The Coastal Zone Management Act and its implementing regulations (15 CFR part 930) require that any Federally licensed or permitted activity affecting the coastal zone of a state with an approved Coastal Zone management Program be consistent with that Program. EPA has concluded, based on the conditions, limitations and prohibitions of this permit that the discharges associated with this proposed permit are consistent with the Texas Coastal Management Program goals and policies. EPA has requested a consistency determination from the Texas Coastal Coordination Council.

F. Historic Preservation Act

Facilities which adversely affect properties listed or eligible for listing in the National Register of Historical Places are not authorized to discharge under this permit.

G. Economic Impact (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 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.

H. 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 (discharge monitoring reports).

I. 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 discussed below, the permit being proposed to be reissued is not a “rule” subject to the Regulatory Flexibility Act. EPA prepared a regulatory flexibility analysis, however, on the promulgation of the Coastal Subcategory guidelines on which many of the permit's effluent limitations are based. That analysis shows that compliance with the permit requirements will not result in a significant impact on dischargers, including small businesses, covered by these permits. EPA Region 6 therefore concludes that the permits proposed today will not have a significant impact on a substantial number of small entities.

J. Unfunded Mandates Reform Act

Section 201 of the Unfunded Mandates Reform Act (UMRA), Public Law 104-4, 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 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 Clean Water Act (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 thinks it is unlikely that this proposed permit issuance would contain a Federal requirement that might 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 proposed permit issuance 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 proposed permit issuance 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.

Dated: January 8, 2001.

Sam Becker,

Acting Director, Water Quality Protection Division, Region 6.