[Federal Register Volume 68, Number 46 (Monday, March 10, 2003)]
[Rules and Regulations]
[Pages 11325-11330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-5708]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 122

[FRL-7464-2]
RIN 2040-AC82


Modification of National Pollutant Discharge Elimination System 
(NPDES) Permit Deadline for Storm Water Discharges for Oil and Gas 
Construction Activity That Disturbs One to Five Acres of Land

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Today's action postpones until March 10, 2005, the requirement 
to obtain National Pollutant Discharge Elimination System (NPDES) storm 
water permit for oil and gas construction activity that disturbs one to 
five acres of land. On December 8, 1999 (64 FR 68722), the U.S. 
Environmental Protection Agency (EPA) published a final rule expanding 
the then-existing NPDES permitting program to require permit coverage 
by March 10, 2003 for, among other things, construction sites that 
disturb one to five acres. As part of that rulemaking, EPA assumed that 
few, if any, oil and gas exploration, production, processing, or 
treatment operations or transmission facilities would be affected by 
the rule. Since rule promulgation, EPA has become aware that close to 
30,000 oil and gas sites per year may be affected by the December 8, 
1999, storm water regulations.
    The two-year postponement of the deadline from March 10, 2003, to 
March 10, 2005, will allow time for EPA to analyze and better evaluate: 
the impact of the permit requirements on the oil and gas industry; the 
appropriate best management practices for preventing contamination of 
storm water runoff resulting from construction associated with oil and 
gas exploration, production, processing, or treatment operations or 
transmission facilities; and the scope and effect of 33 U.S.C. 1342 
(l)(2) and other storm water provisions of the Clean Water Act.

DATES: This final regulation is effective on March 10, 2003. For the 
purposes of judicial review, this final rule is promulgated as of March 
10, 2003 as provided in 40 CFR 23.2.

ADDRESSES: The administrative record is available for inspection and 
copying at the Water Docket, located at the EPA Docket Center in the 
basement of the EPA West Building, Room B-102, at 1301 Constitution 
Ave., NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Wendy Bell, Office of Wastewater 
Management, Office of Water, Environmental Protection Agency, at (202) 
564-0746 or e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Regulated Entities.

    Entities Potentially Regulated by This Action Include:

------------------------------------------------------------------------
         Category                  Examples of regulated entities
------------------------------------------------------------------------
Industry.................  Oil and gas producers constructing drilling
                            sites disturbing one to five acres of land;
                            construction site operators associated with
                            oil and gas construction projects disturbing
                            one to five acres of land; and operators of
                            transmission facilities as defined herein.
------------------------------------------------------------------------

    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 or company is regulated by this action, you should 
carefully examine the applicability criteria in 40 CFR 122.26(b)(15). 
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.

B. How Can I Get Copies of this Document and Other Related Information 
?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. OW-2002-0068. The official public docket 
consists of the documents specifically referenced in this action, any 
public comments received, and other information related

[[Page 11326]]

to this action. Although a part of the official docket, the public 
docket does not include Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. The 
official public docket is the collection of materials that is available 
for public viewing at the Water Docket in the EPA Docket Center, (EPA/
DC) EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. 
The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 
4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the Water Docket is (202) 566-2426.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the Federal Register 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to view public comments, 
access the index listing of the contents of the official public docket, 
and to access those documents in the public docket that are available 
electronically. Although not all docket materials may be available 
electronically, you may still access any of the publicly available 
docket materials through the docket facility identified in Section 
I.B.1. Once in the system, select ``search,'' then key in the 
appropriate docket identification number.

C. When Does This Rule Take Effect?

    Because this rule provides temporary relief from permitting 
requirements for certain dischargers, this rule is not subject to the 
general requirement for a thirty-day waiting period after publication 
before a final rule takes effect. 5 U.S.C. 553(d)(1). Moreover, 
pursuant to 5 U.S.C. 553(d)(3), EPA has good cause to make this rule 
effective immediately. The March 10, 2003, deadline this action extends 
is less than thirty days after the publication of this rule. Making 
this action effective as soon as it's published will help reduce any 
confusion by those affected by the rule regarding the necessity for 
obtaining permit coverage. EPA is aware of no reason why those directly 
affected by this rule would need, or want, a waiting period before this 
action becomes effective. Therefore, a thirty-day waiting period is 
unnecessary and would be contrary to the public interest.

II. Background

    On December 30, 2002, EPA proposed a two-year postponement of the 
permit requirement for oil and gas construction activity disturbing one 
to five acres from March 10, 2003, to March 10, 2005, in order to allow 
time for EPA to analyze and better evaluate (1) The impact of the 
permit requirements on the oil and gas industry, (2) the appropriate 
best management practices for preventing contamination of storm water 
runoff resulting from construction associated with oil and gas 
exploration, production, processing, or treatment operations or 
transmission facilities, and (3) the scope and effect of 33 U.S.C. 1342 
(l)(2) and other storm water provisions of the Clean Water Act. In that 
proposal, EPA explained the background of the NPDES construction permit 
requirements, and why EPA believes it is appropriate to provide a two-
year postponement of permit requirements for construction of oil and 
gas exploration and production facilities disturbing one to five acres. 
When describing construction activity that disturbs ``one to five 
acres,'' or in discussing ``small'' construction activity in this 
preamble, EPA is referring to activities covered by 40 CFR 
122.26(b)(15).

III. Response to Comments

    EPA received numerous comments on both the proposal to postpone 
permit requirements for small oil and gas construction and the proposed 
construction general permit (CGP). The proposed CGP is available in the 
official public docket referenced in the Notice of Availability for 
Comment for the Proposed CGP at 67 FR 78116 (December 20, 2002). 
Comments on specific aspects of the CGP will be addressed in the fact 
sheet that will accompany the final permit. EPA's responses to all the 
comments received on the proposed rule are available in the Response to 
Comment document that is part of the docket for this final rule. EPA's 
responses to many of the principal issues raised on the proposed rule 
are discussed below.

Difference Between Oil and Gas and Other Construction

    A number of commenters opposed the two-year postponement, asserting 
that there is no reason to treat construction at oil and gas sites 
differently than other types of construction. EPA agrees that sediment 
from all sources is a concern but believes that the oil and gas 
industry has raised significant questions about the differences between 
the nature of construction at oil and gas sites and other types of 
construction. One such difference is the very short time window in 
which construction at oil and gas sites usually occurs. Most of the 
studies that EPA relied on to show the need for regulating small 
construction activity looked at residential or commercial construction. 
It is important for EPA to determine whether construction at oil and 
gas sites is sufficiently different from these other types of 
construction to warrant different regulatory treatment. EPA has decided 
to postpone permitting requirements for small construction at oil and 
gas sites for two years so that there is adequate time for all the 
affected parties to provide information and help us determine how to 
best ensure that such construction does not cause sediment and erosion 
problems and that these sites are not subject to inappropriate 
requirements. Also, as reflected in the proposal, EPA plans to use this 
time to assess the scope of 33 U.S.C. 1342(l)(2) and other storm water 
provisions of the Clean Water Act with regard to storm water discharges 
caused by this industry.

Environmental Impact

    EPA received conflicting comments on the environmental impact of 
oil and gas activity. Some commenters claimed that there was no 
evidence of negative environmental impacts associated with oil and gas 
activities. Other commenters asserted that oil and gas projects 
frequently involved logging, grading, and road building, and that these 
activities were conducted without erosion and sediment controls and 
were therefore the source of large amounts of sediment deposition. As 
discussed above, EPA believes the two-year postponement will provide 
time to evaluate these opposing assertions.
    Several commenters asserted that their State currently requires 
erosion and sediment (E&S) controls and for oil and gas operators 
therefore an NPDES permit is unnecessary. Other commenters indicated 
that oil and gas construction activity in their area occurred without 
any E&S controls. EPA is aware that some States have good E&S programs 
in place, and that other States do not. During the two-year 
postponement, EPA will evaluate State E&S controls related to oil and 
gas construction activity in comparison to requirements that would be 
imposed through an NPDES permit.

Economic Impact

    A number of commenters asserted that EPA did not perform an 
economic analysis on the Phase II rule's effect on oil and gas, the 
national economy, and small businesses. EPA published an

[[Page 11327]]

extensive economic analysis that is described in the Phase II rule. EPA 
did not specifically address oil and gas because the information we 
considered at that time suggested that most oil and gas sites would 
disturb less than one acre. EPA's decision to postpone the construction 
permit requirements for small oil and gas sites is partially based on 
the information that we became aware of since publication of the Phase 
II rule. EPA needs the additional time to thoroughly consider the 
impact of the construction requirements on the oil and gas industry.
    Commenters also stated that EPA did not do the proper evaluation of 
energy-related production activities in accordance with Executive Order 
13211. Executive Order 13211 was issued on May 22, 2001 which was well 
after promulgation of the Phase II rule. However, in the spirit of this 
Executive Order, during the two year postponement, EPA will analyze the 
question of whether the imposition of storm water permitting 
requirements on construction of oil and gas facilities of one to five 
acres would result in a significant energy impact.

Common Plan

    Commenters asked that EPA clarify how the ``common plan of 
development'' applies at oil and gas sites, so they would know the 
extent of applicability of the two-year permit postponement. Where 
construction activity is part of a larger common plan of development or 
sale that will disturb five acres or more, the two year postponement 
provided for in this final rule does not apply. The primary concern 
raised by commenters was that when a field is first developed, the 
producer does not know when, where, and how many wells will be drilled.
    EPA acknowledged this broader issue of what constitutes a ``common 
plan'' in the ``Frequently Asked Questions'' section of the proposed 
fact sheet for the proposed CGP. EPA stated that ``If you have a long 
range master plan of development where some portions of the master plan 
are a conceptual rather than a specific plan of future development and 
the future construction activities would, if they occur at all, happen 
over an extended time period, you may consider the `conceptional' 
phases of development to be separate `common plans' provided the 
`conceptual phase' has not been funded and periods of construction for 
the physically interconnected phases will not overlap.'' Fact Sheet for 
the Issuance of a NPDES Permit. (This proposed fact sheet is available 
in the official public docket referenced in the Notice of Availability 
for Comment for the proposed CGP at 67 FR 78116 (Dec. 20, 2002).) The 
proposed fact sheet goes on to describe a possible example in the 
context of the oil and gas industry. EPA plans to further clarify this 
issue when it takes final action on the proposed CGP.

Exemption

    Many commenters reiterated their belief that Congress intended CWA 
402(l)(2) to exempt all types of activities, including construction, 
associated with oil and gas exploration, production, processing, 
treatment, or transmission. EPA recognizes that this issue is, and has 
been, of concern to many in the oil and gas industry. See, Appalachian 
Energy Group, et al. v. EPA, 33 F.3d 319 (4th Cir. 1994). Today's 
action is limited to postponing permit requirements for certain oil and 
gas construction activities and, in this limited context, should not 
conflict with these commenters' position. Again, as reflected in the 
proposal, EPA plans to use the two-year extension to assess the scope 
of 33 U.S.C. 1342(l)(2) with regard to storm water discharges caused by 
this industry.
    Differences between construction disturbing five or more acres 
(``large'' construction. See 40 CFR 122.26(b)(14)(x).) and construction 
disturbing one to five acres (``small'' construction. See 40 CFR 
122.26(b)(15).)
    Several commenters believe that the two-year postponement should 
apply to large construction as well as smaller sites. Large 
construction has been regulated as an industrial activity under CWA 
section 402(p)(2) since the promulgation of the Phase I storm water 
rule. EPA did not propose to take any action with respect to large 
construction activity and did not seek comment on this issue. The 
Agency declines to respond to these comments, as they are outside the 
scope of the action proposed.

Transmission facilities

    EPA received many questions about our definition of ``transmission 
facilities.'' EPA has looked at the information submitted by the oil 
and gas industry to help understand what types of pipelines should be 
considered ``transmission facilities.'' For the purposes of today's 
action, the term ``oil and gas exploration, production, processing, and 
treatment operations or transmission facilities'' includes gathering 
lines, flowlines, feeder lines, and transmission lines. The 
construction of water lines, electrical utilities lines, etc. as part 
of the oil and gas exploration, production, processing, treatment, and 
transmission of oil and gas are also included. Transmission lines are 
typically major pipelines (e.g., interstate and intrastate pipelines) 
that transport crude oil and natural gas over long distances and are 
large-diameter pipes operating at relatively high pressure. Many of 
these pipelines traverse long distances and disturb over five acres 
(and as such, are covered by EPA's permitting requirements for large 
construction activity). Pipelines that transport refined petroleum 
product and chemicals from refineries and chemical plants are not 
included in the terms described in today's rule as potentially eligible 
for the two year postponement.
    One commenter requested that EPA clarify in its final rule that its 
definition of transmission be consistent with terms used by the U.S. 
Department of Transportation (DOT) at 49 CFR part 192 (Transportation 
of Natural and Other Gas by Pipeline: Minimum Federal Safety 
Standards). Commenters also asked about other types of pipelines (i.e., 
distribution lines). Distribution lines are those pipelines that 
deliver natural gas to homes, businesses, etc. and operate at 
relatively low pressures. EPA does not consider distribution lines to 
be transmission lines, and as such, these lines are not included in the 
terms described in today's rule as potentially eligible for the two 
year postponement. While EPA is not codifying DOT definitions, the 
Agency does consider the DOT's definitions to be consistent with EPA's 
interpretation of ``transmission'' in this rulemaking.

IV. Today's Action

    In today's action, EPA is postponing until March 10, 2005, the 
permit authorization deadline for National Pollutant Discharge 
Elimination System (NPDES) storm water permits for oil and gas 
construction activity that disturbs one to five acres of land and sites 
disturbing less than one acre that are part of a larger common plan of 
development or sale that disturbs one to five acres. Since January 
2002, EPA has become aware that close to 30,000 oil and gas sites may 
be affected by the Phase II storm water regulations. In the spirit of 
Executive Order 13211, which directs EPA to consider the impact of its 
actions on energy-related production activities, the Agency believes it 
is important to review this new information in light of the Phase II 
rule to determine the impact on the oil and gas industry. During the 
two-year postponement of this deadline, EPA plans to gather information 
about the area of land disturbed during construction of oil and gas 
exploration and production facilities.

[[Page 11328]]

    In evaluating the impact of this action, the Agency will work with 
States, industry, and other entities to gather and evaluate data on the 
development and use of appropriate best management practices for the 
oil and gas industry. As part of today's action, EPA is seeking 
additional information on size, location and other site characteristics 
to better evaluate compliance costs, as well as technical and cost data 
to evaluate best management practices appropriate to controlling storm 
water runoff from oil and gas starts. EPA will also evaluate the 
applicability of the exemption at 33 U.S.C. 1342(l)(2) to construction 
activity at oil and gas exploration, production, processing, or 
treatment operations or transmission facilities. EPA will use the 
additional data and analyses produced during the two-year period to 
determine the appropriate NPDES requirements, if any, for small 
construction of oil and gas exploration and production facilities.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    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:
    (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.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
It merely postpones implementation of an existing rule deadline.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information; processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
generally requires an agency to prepare a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements under the Administrative Procedure Act 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.
    For purposes of assessing the impacts of today's final rule on 
small entities, small entity is defined as: (1) A small business based 
on SBA size standards; (2) a small governmental jurisdiction that is a 
government of a city, county, town, school district or special district 
with a population of less than 50,000; and (3) a small organization 
that is any not-for-profit enterprise which is independently owned and 
operated and is not dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. It merely 
postpones the permit authorization deadline for oil and gas 
construction activities that disturb one to five acres.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 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. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    EPA has determined that this rule does not contain a Federal 
mandate 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. This rule does not impose any costs. It merely 
postpones the permit authorization deadline for oil and gas 
construction activities that disturb one to five acres. Thus, today's 
final rule is not subject to the requirements of sections 202 and 205 
of the UMRA. For the same reason, EPA has determined that this rule 
contains no regulatory requirements that might significantly or 
uniquely affect small governments. Thus, today's final rule is not 
subject to

[[Page 11329]]

the requirements of section 203 of UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This rule does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. It merely postpones the permit 
authorization deadline for oil and gas construction activities that 
disturb one to five acres. Thus, Executive Order 13132 does not apply 
to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled, ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian tribes.''
    This rule does not have Tribal implications. It will not have 
substantial direct effects on Tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. It 
merely postpones the permit authorization deadline for oil and gas 
construction activities that disturb one to five acres. Thus, Executive 
Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This 
regulation is not subject to Executive Order 13045 because it is not 
economically significant as defined under E.O. 12866.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866. The only 
effect of this rule is to delay the permit authorization requirement 
for affected small oil and gas operations by two years. As noted above, 
EPA will use the two-year delay to analyze the broader question of 
whether the imposition of storm water permitting requirements on 
construction of oil and gas facilities disturbing one to five acres 
would result in a significant energy impact, and will factor the 
results of this analysis into its final determination regarding 
appropriate requirements for such facilities.

I. National Technology Transfer And Advancement Act

    As noted in the proposed rule, section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Pub L. No. 
104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use 
voluntary consensus standards in its regulatory activities unless to do 
so would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) that are developed or adopted by voluntary consensus 
standard bodies. The NTTAA directs EPA to provide Congress, through 
OMB, explanations when the Agency decides not to use available and 
applicable voluntary consensus standards.
    This rulemaking does not involve technical standards. Therefore, 
EPA did not consider the use of any voluntary consensus standards.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register.
    This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). 
This rule will be effective March 10, 2003.

List of Subjects in 40 CFR Part 122

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous substances, Reporting and 
recordkeeping requirements, Water pollution control.

    Dated: March 5, 2003.
Christine Todd Whitman,
Administrator.

    For the reasons set forth in the preamble, chapter I of title 40 of 
the Code of Federal Regulations is amended as follows:

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

    1. The authority citation for part 122 continues to read as 
follows:

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


    2. Revise Sec.  122.26(e)(8) to read as follows:


Sec.  122.26  Storm water discharges (applicable to State NPDES 
programs, see Sec.  123.25).

* * * * *
    (e) * * *

[[Page 11330]]

    (8) For any storm water discharge associated with small 
construction activity identified in paragraph (b)(15)(i) of this 
section, see Sec.  122.21(c)(1). Discharges from these sources, other 
than discharges associated with small construction activity at oil and 
gas exploration, production, processing, and treatment operations or 
transmission facilities, require permit authorization by March 10, 
2003, unless designated for coverage before then. Discharges associated 
with small construction activity at such oil and gas sites require 
permit authorization by March 10, 2005.
* * * * *
[FR Doc. 03-5708 Filed 3-7-03; 8:45 am]
BILLING CODE 6560-50-P