04-7977. Notice of Availability of Proposed 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 (Reissuance).

SUMMARY:

EPA Region 9 is reopening the public comment period for 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 original public comment period for the permit ran from July 20, 2000 to September 5, 2000 and included a public hearing on August 23, 2000. EPA is now requesting public comment concerning proposed modifications to the July 2000 proposed permit which are primarily the result of a review of the permit by the California Coastal Commission (CCC). The proposed modifications are discussed in more detail below. EPA is not reopening the entire permit for public comment at this time; public comment is only being requested regarding the specific modifications discussed below.

DATES:

Comments on the proposed general permit must be received or postmarked no later than May 15, 2004.

ADDRESSES:

Public comments on the proposed permit should be sent to: Environmental Protection Agency, Region 9, Attn: Lisa Honor, CWA Standards and Permits Office (WTR-5), 75 Hawthorne Street, San Francisco, California 94105-3901.

FOR FURTHER INFORMATION CONTACT:

Eugene Bromley, EPA, Region 9, CWA Standards and Permits Office (WTR-5), 75 Hawthorne Street, San Francisco, California 94105-3901, or telephone [phone]. Copies of the proposed general permit and the July 2000 fact sheet and its 2004 addendum will be provided upon request and are also available at EPA, Region 9's Web site at http://www.epa.gov/​region09/​water/​.

Administrative Record: The proposed general permit 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, CWA Standards and Permits Office (WTR-5), 75 Hawthorne Street, San Francisco, CA 94105-3901.

SUPPLEMENTARY INFORMATION:

A. Proposed Permit Modifications and Recertification under the CZMA. On December 20, 2000, EPA submitted a certification under the Coastal Zone Management Act (CZMA) to the CCC that the general permit was consistent with the approved California Coastal Management Plan (CMP). The permit and the consistency certification were considered by the CCC at a meeting held on January 9, 2001. At the January 9, 2001 meeting, EPA agreed to revise the permit/fact sheet in response to concerns raised by the CCC. The modifications were: (1) for produced water discharges, inclusion in the permit of effluent standards based on the more stringent of EPA water quality criteria or California Ocean Plan objectives (both applied at the boundary of the 100-meter mixing zone); (2) revision of the scope and timing of the study requirements in the permit for alternative disposal for certain discharges; and (3) revision of the fact sheet to include a description of a commitment by EPA regarding third party monitoring. With these changes, the CCC concurred that the permit was consistent with the CMP. However, after reconsidering the issue pertaining to produced water, EPA is now proposing to revise the permit to apply Ocean Plan objectives at the seaward boundary of the territorial seas of the State of California for the purpose of calculating effluent limitations. Since this change constitutes a modification of the permit conditions on which the CCC relied when it concurred with EPA's consistency certification in January 2001, EPA submitted the modified permit to the CCC for another CZMA consistency review. EPA recertified the modified permit to the CCC on December 10, 2003 pursuant to section 307(c)(1) of the CZMA, whereas in December 2000, EPA certified the permit pursuant to section 307(c)(3) of the CZMA. The recertification included a proposed permit, fact sheet, Ocean Discharge Criteria Evaluation (ODCE) prepared under section 403(c) of the CWA and various other documents in support of the recertification.

On March 17, 2004, the CCC objected to EPA's consistency certification of December 10, 2003 for the permit. In accordance with 15 CFR 930.31(d), EPA may still issue the permit, but the permit cannot become effective for a given discharger until the CCC concurs with an individual consistency certification submitted by the discharger, or the Secretary of Commerce overrides a CCC objection in accordance with 15 CFR part 930, subpart H. The effective date in today's proposed permit makes allowance for these regulatory requirements.

In addition, EPA is proposing to accelerate the schedule for produced water sampling for determining reasonable potential to exceed applicable water quality criteria. The revised permit would require a total of 12 samples taken during the first year of the permit rather than 10 samples taken during the first 2 1/2 years, as was required by the proposed permit for which EPA published a Notice of Availability on July 20, 2000 (65 FR 45063). The revised permit also includes revised maximum discharge volumes for Platforms Harvest, Hermosa and Hidalgo, based on updated information from the operator. Furthermore, the revised permit uses EPA's revised CWA 304(a) water quality criteria found in “National Recommended Water Quality Criteria: 2002 (EPA-822-R-02-047) and 68 FR 75507 (December 31, 2003) for calculating effluent limitations based on dilution achieved at the 100-meter mixing zone. The revised permit also includes a number of minor editorial changes, clarifications and other revisions based on comments which have been received since the July 20, 2000 Notice of Availability was published. These revisions are explained in the Addendum to the Fact Sheet.

EPA is not reopening the entire permit for public comment at this time; public comment is only being requested regarding the proposed modifications noted above. The proposed modifications are discussed in more detail in the Addendum to the Fact Sheet.

The proposed general permit establishes effluent limitations, prohibitions, and other terms and conditions for discharges from facilities operating in the general permit area. The terms and conditions are based on the administrative record. Summary information concerning the terms and conditions of the general permit were provided in EPA's July 20, 2000 notice of proposed permit (65 FR 45063). Additional information is available in the Addendum to the Fact Sheet.

B. Permit Appeal Procedures. Within 120 days following notice of EPA's final decision for the general permit under 40 CFR 124.15, any interested person may appeal the permit 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).

C. 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.

D. 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 Procedure 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 rulemaking requirements, under APA section 553 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.” Its definition of “rule” encompasses “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 requirements of an agency * * *” APA section 551(4). Its definition of “order” is residual: “a final disposition * * * of an agency in a matter other than rule making but including licensing” APA section 551(6). The APA defines “license” to “include * * * an agency permit * * *” APA section 551(8). 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. The APA defines “rule making” as “the agency process for formulating, amending, or repealing a rule” APA section 551(5). By its terms, then, section 553 applies only to “rules” and not also to “orders,” which include permits.

E. 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” 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)”). 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 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)[we only need parentheses around APA], or any other law * * *.”

As discussed in the RFA section of this notice, NPDES general permits are not “rules” 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.” Thus, NPDES general permits are not “rules” for RFA or UMRA purposes.

F. Paperwork Reduction Act. The information collection required by this permit has been approved by 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).

Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

Dated: March 31, 2004.

Alexis Strauss,

Director, Water Division, Region 9.