00-17750. 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:

The Regional Administrator, EPA, Region 9, is proposing to issue an NPDES general permit (permit No. CAG280000) for discharges from oil and gas exploration, development and production operations in Federal waters offshore of the State of California. This document announces the availability of the proposed general permit and fact sheet for public comment. When issued, the proposed permit will establish effluent limitations, prohibitions, and other conditions on discharges from facilities in the general permit area. These conditions are based on the administrative record.

This document also announces the availability of the following documents for public review: (1) Ocean Discharge Criteria Evaluation (“ODCE”) which evaluates the proposed discharges for compliance with the requirements of section 403(c) of the Clean Water Act (“CWA”), (2) two biological assessments (“BAs”) (for two different groups of species) which evaluate the proposed discharges for compliance with the requirements of the Endangered Species Act, and (3) an essential fish habitat (“EFH”) assessment which evaluates the proposed discharges for compliance with the 1996 amendments to the Magnuson-Stevens Fishery Conservation and Management Act.

DATES:

Comments on the proposed general permit must be received or postmarked no later than September 5, 2000.

Public Hearing: A public hearing to receive public comment concerning the proposed general permit will be held at the time and location provided below:

Date: August 23, 2000.

Time: 2 p.m.

Place: Santa Barbara County Administration Building, 105 E. Anapamu Street, Santa Barbara, CA 93101

ADDRESSES:

Public comments and requests for coverage should be sent to: Environmental Protection Agency, Region 9, Attn: CWA Standards and Permits Office, WTR-5, 75 Hawthorne Street, San Francisco, California 94105-3901.

FOR FURTHER INFORMATION CONTACT:

Eugene Bromley, EPA, at the address listed above or telephone [phone]. Copies of the proposed general permit and fact sheet will be provided upon request and are also available at EPA, Region 9's website at http://www.epa.gov/​region09/​water/​.

SUPPLEMENTARY INFORMATION:

State Consistency Review: This document will also serve as Public Notice of the intent of the State of California, California Coastal Commission (“CCC”), to review this action for consistency with the approved California Coastal Management Program (“CCMP”). Persons wishing to comment on the issue of consistency with the CCMP should submit written comments to the California Coastal Commission, 45 Fremont Street, Suite 2000, San Francisco, CA 94105-2219. Comments should be addressed to the attention of California Coastal Management Program Consistency Review. Comments may be submitted to the CCC from the date of publication of this notice in the Federal Register until the CCC has conducted its review of this action (which will occur as soon as possible after close of the 45-day comment period announced by this notice, but in no event later than 180 days after commencement of the CCC's review).

Administrative Record: The proposed NPDES 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 4:00 p.m., Monday through Friday, excluding legal holidays, at the addresses shown below. U.S. EPA, Region 9, CWA Standards and Permits Office (WTR-5), 75 Hawthorne Street, San Francisco, CA 94105-3901.

Summary of Terms and Conditions of Proposed General Permit

A. Facility Coverage. The proposed general permit would apply to existing development and production platforms, and new exploratory drilling operations in the Offshore Subcategory of the Oil and Gas Extraction Point Source Category, located in and discharging to 83 specified lease blocks in Federal waters on the Pacific Outer Continental Shelf (“OCS”), offshore Southern California. There are currently 22 existing production platforms on the Pacific OCS. New source production platforms would not be covered by the proposed permit and would require individual permits.

All dischargers requesting coverage under the permit would be required to submit a Notice of Intent (“NOI”). Information to be provided includes the legal name and address of the owner or operator, the facility name and location, type of facility and discharges, lease block, previous permits, and the receiving water. EPA may require any person authorized by the general permit to apply for and/or obtain an individual NPDES permit if the terms of the general permit are determined to not be appropriate for a particular facility.

B. Types of Discharges Authorized. The proposed general permit would authorize the following discharges (subject to the terms and conditions of the permit) in all areas of coverage: drilling fluids and drill cuttings; produced water; well treatment, completion and workover fluids; deck drainage; domestic and sanitary waste; blowout preventer fluid; desalination unit discharge; fire control system test water; non-contact cooling water; ballast and storage displacement water; bilge water; boiler blowdown; test fluids; diatomaceous earth filter media; bulk transfer material overflow; uncontaminated freshwater; water flooding discharges; laboratory wastes; excess cement slurry; hydrotest water; and hydrogen sulfide gas processing waste water.

C. Effluent Limitations. The proposed general permit includes effluent limitations based on Best Conventional Pollutant Control Technology (“BCT”) for the control of conventional pollutants, Best Available Treatment Economically Achievable (“BAT”) for the control of toxic and nonconventional pollutants and (3) additional effluent limitations based on section 403(c) (ocean discharge requirements) of the CWA. BAT and BCT effluent limitations guidelines were promulgated by EPA on March 4, 1993 (58 FR 12454) for the Offshore Subcategory of the Oil and Gas Extraction Point Source Category. These BAT/BCT effluent limitations have been included in the proposed permit, along with certain additional effluent limitations based on section 403(c) of the CWA. In addition, monitoring requirements have been included to ensure compliance with the effluent limitations.

EPA currently lacks sufficient information to establish appropriate final effluent limitations for certain pollutants (primarily heavy metals and toxic organics) in produced water discharges. For these pollutants, the proposed permit would require monitoring to evaluate whether the discharges have a reasonable potential to cause or contribute to exceedances of marine water quality criteria. Based on the results of the monitoring (which would be available approximately 21/2 years into the term of the permit), the permit may be reopened to include additional effluent limitations.

In view of the variety of pollutants in produced water, the proposed permit also requires chronic whole effluent toxicity (“WET”) monitoring to measure the aggregate toxic effects of the pollutants. If toxicity is detected, accelerated testing would be required by the permit, and if the toxicity persists, a Toxicity Reduction Evaluation (“TRE”) would be required along with a Toxicity Identification Evaluation (“TIE”) to identify the specific chemical(s) causing the toxicity.

D. Ocean Discharge Criteria Evaluation (ODCE). Section 403 of the CWA requires that an NPDES permit for a discharge into marine waters located seaward of the inner boundary of the territorial seas be issued in accordance with guidelines for determining the potential degradation of the marine environment. Guidelines for evaluating proposed discharges are found at 40 CFR part 125, subpart M (Ocean Discharge Criteria regulations).

An ODCE has been prepared entitled “Ocean Discharge Criteria Evaluation South and Central California for NPDES Permit No. CAG280000” dated January 2000, which evaluates the discharges which would be authorized by the proposed general permit. After review of the ODCE, and other available data and studies in the administrative record for the permit, EPA has tentatively concluded that the proposed discharges would not cause unreasonable degradation of the marine environment. However, this conclusion will be re-evaluated based on comments received on the proposed permit.

E. Endangered Species Act. The area covered by the proposed permit potentially includes species under the jurisdiction of both the U.S. Fish and Wildlife Service (“USFWS”) and the National Marine Fisheries Service (“NMFS”). As such, EPA prepared separate BAs to assess the potential impacts of the permit reissuance on listed species under the jurisdiction of the USFWS and NMFS. Both BAs concluded that there would be no effect on listed species. EPA is providing copies of the draft permit and fact sheet along with the appropriate BA to the Long Beach office of the NMFS and the Ventura Field Office of the USFWS for review and comment on EPA's conclusions concerning the effects of the proposed discharges on listed species.

F. Coastal Zone Management Act. The Coastal Zone Management Act (“CZMA”) provides that a Federal license or permit for activities affecting the coastal zone of a state may not be granted until a state with an approved Coastal Management Plan (“CMP”) concurs with a certification that the activities authorized by the permit are consistent with the CZP (CZMA section 307(c)(3)(A)). In California, the CZMA authority is the CCC. In this case, EPA will be preparing and submitting to the CCC the required certification. Since the necessary consistency concurrence has not been obtained, the proposed permit provides that the permit will not become effective until the required concurrence of the CCC is obtained.

G. Magnuson-Stevens Fishery Conservation and Management Act. In accordance with the requirements of the 1996 amendments to the Magnuson-Stevens Fishery Conservation and Management Act, EPA prepared an assessment of the effects of the proposed discharges on EFH in the area covered by the permit. The assessment concludes that while there may be effects on EFH from certain discharges near an outfall, these effects should be minor overall given the small area which may be affected relative to the size of the EFH off the Pacific Coast, and the mitigation provided by the various effluent limitations which are proposed for the permit. EPA has provided a copy of the assessment to NMFS to initiate a consultation. Upon completion of the consultation, NMFS will provide conservation recommendations to EPA based on its review of the EFH assessment. Although NMFS's recommendations are non-binding on Federal agencies, the final permit may nevertheless include additional or modified requirements based on NMFS's review.

H. Permit Effective Date and Appeal Procedures. To ensure smooth transition and allow current operators time to apply and prepare for the new requirements, the effective date of the general permit is proposed as the first day of the month that begins at least 45 days after the CCC concurs with the certification provided by EPA that the discharges authorized by the permit are consistent with the approved California CMP.

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 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).

I. 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).

J. Economic Impact (Executive Order 12866). Under Executive Order 12866 (58 FR 51735 (Oct. 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 proposed general permit is not a “significant regulatory action” under the terms of Executive Order 12866.

K. 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)”). 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. * * *”

As discussed in the RFA section of this document, 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 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.

EPA has determined that the proposed general permit does not contain a Federal requirement that may 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.

EPA also believes that the proposed general permit will 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 general permit also will 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 proposed general permit.

L. Regulatory Flexibility Act. Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., EPA is required to prepare a Regulatory Flexibility Analysis to assess the impact of rules on small entities. Under 5 U.S.C. 605(b), no Regulatory Flexibility Analysis is required where the head of the Agency certifies that the rule will not have a significant economic impact on a substantial number of small entities.

EPA takes the position that NPDES general permits are not subject to rulemaking requirements under APA section 553 or any other law. The requirements of APA section 553 apply only to the issuance of “rules,” which the APA defines in a manner that excludes permits. See APA section 551(4), (6) and (8). The CWA also does not require publication of a general notice of proposed rulemaking for general permits. EPA publishes draft general NPDES permits for public comment in the Federal Register in order to meet the applicable CWA procedural requirement to provide “an opportunity for a hearing.” CWA section 402(a), 33 U.S.C. 1342(a).

M. Signature. Accordingly, I hereby find consistent with the provisions of the RFA, that this proposed general permit will not have a significant impact on a substantial number of small entities.

Authority: CWA, 33 U.S.C. 1251 et seq.

Dated: July 5, 2000.

Alexis Strauss,

Acting Regional Administrator, Region 9.