E6-22154. Proposed NPDES General Permit for Discharges From the Oil and Gas Extraction Point Source Category to Coastal Waters in Texas (TXG330000)

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of Proposed NPDES General Permit Reissuance.

SUMMARY:

EPA Region 6 today proposes to issue a National Pollutant Discharge Elimination System (NPDES) general permit regulating discharges from oil and gas wells in the Coastal Subcategory in Texas and regulating produced water discharges from wells in the Stripper and Offshore Subcategories which discharge into coastal waters of Texas.

As proposed, the permit prohibits the discharge of drilling fluid, drill cuttings, produced sand and well treatment, completion and workover fluids. Produced water discharges are prohibited, except from wells in the Stripper Subcategory located east of the 98th meridian whose produced water comes from the Carrizo/Wilcox, Reklaw or Bartosh formations in Texas. Discharge of dewatering effluent is proposed to be prohibited, except from reserve pits which have not received drilling fluids and/or drill cuttings since January 15, 1997. The discharge of deck drainage, formation test fluids, sanitary waste, domestic waste and miscellaneous discharges is proposed to be authorized. We are proposing to reissue the existing NPDES General Permit for Discharges from the Oil and Gas Extraction Category to Coastal Waters of Texas with only one change, the addition of annual monitoring for dissolved solids from Stripper Subcategory produced water.

DATES:

Comments must be received by February 26, 2007.

ADDRESS:

Comments should be sent to: Ms. Diane Smith, Water Quality Protection Division, Region 6, U.S. Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202-2733. Comments may also be submitted via e-mail to the following address: [e-mail].

FOR FURTHER INFORMATION CONTACT:

Ms. Diane Smith, Region 6, U.S. Environmental Protection Agency (6WQ-CA), 1445 Ross Avenue, Dallas, Texas 75202-2733. Telephone: [phone].

A copy of the proposed permit, the fact sheet more fully explaining the proposal, and a copy of the Agency's Supplemental Environmental Assessment prepared pursuant to the National Environmental Policy Act 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 coastal waters of Texas, e.g., oil and gas extraction platforms, but other types of facilities may also be subject to the permit. As proposed, the permit would also authorize some produced water discharges from Stripper Subcategory wells to coastal waters. 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, Coastal and Stripper Subcategory Effluent Limitations Guidelines at 40 CFR part 435 as well as requirements assuring that regulated discharges will comply with Texas State Water Quality Standards. Specific information on the derivation of those limitations and conditions is contained in the fact sheet.

Other Legal Requirements

State Certification. Under section 401(a)(1) of the Clean Water Act, EPA may not issue an NPDES permit until the State in which the discharge will occur grants or waives certification to ensure compliance with appropriate requirements of the Act and State law. EPA will seek certification from the Railroad Commission of Texas prior to issuing a final permit.

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 prepared an environmental assessment in accordance with 40 CFR 6.604 when the current permit was drafted. Based on that environmental assessment document, EPA determined that there would be no significant impact as the result of issuing that permit. When the current permit was issued, a Statement of Findings documenting the completion of EPA's NEPA review process on this permit action was signed by the Regional Administrator.

Since no new limits or changes in permit coverage are proposed, EPA has determined that reissuance of the permit does not rise to the level of a significant impact to the environment. Thus, EPA is not required to prepare another Environmental Assessment for this action.

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 (FWS or the Service) concurred with EPA's finding that the permit was unlikely to adversely affect any threatened or endangered species or their 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 their critical habitat. The Region found that adding New Source coverage to the permit is also unlikely to adversely affect any threatened or endangered species or its critical habitat. EPA received written concurrence from the FWS on May 2, 2001, and from the National Marine Fisheries Service (NMFS) on May 1, 2001, on that determination. Since no significant changes are proposed to the permit, EPA again finds that the reissued permit is unlikely to adversely affect any listed threatened or endangered species or their critical habitat. EPA will obtain concurrence with the determination from NMFS and FWS prior to issuing the final permit.

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 NMFS 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 previously found that issuance of this permit would be unlikely to adversely affect Essential Fish Habitat. EPA received written concurrence from NMFS on that determination. Since there are very few changes proposed to the permit with this reissuance, EPA again finds that its issuance is unlikely to adversely affect Essential Fish Habitat. EPA is seeking concurrence with that decision from NMFS.

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 permit are consistent with the Texas Coastal Management Program goals and policies. EPA previously received a consistency determination from the Texas Coastal Coordination Council on February 13, 2001, and is seeking another consistency determination prior to issuing the final permit.

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.

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 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 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).

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. This permit 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 this permit. EPA Region 6, therefore, concludes that the permit being proposed today 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), Pub. L. 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 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 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 permit issuance also would not uniquely affect small governments because compliance with the permit conditions affects small governments in the same manner as any other entities seeking coverage under the permit.

Dated: December 19, 2006.

William K. Honker,

Acting Director, Water Quality Protection Division, EPA Region 6.