[Federal Register Volume 68, Number 221 (Monday, November 17, 2003)]
[Notices]
[Pages 64895-64898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-28421]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7585-9]


Proposed Reissuance of the NPDES General Permit for the 
Territorial Seas of Texas (TXG260000)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed NPDES general permit reissuance.

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SUMMARY: The Regional Administrator of EPA Region 6 today proposes to 
issue the National Pollutant Discharge Elimination System (NPDES) 
general permit for the Territorial Seas of Texas (No. TXG260000) for 
discharges from existing and new dischargers and New Sources in the 
Offshore Subcategory of the Oil and Gas Extraction Point Source 
Category as authorized by section 402 of the Clean Water Act. The 
permit will supercede the previous general permit (TX0085651) issued on 
September 15, 1983 and published in the Federal Register at 48 FR 
41494. That permit authorized discharges from exploration, development, 
and production facilities located in and discharging to the territorial 
seas off Texas. Through this reissuance, EPA proposes to include 
current technology and water quality based effluent limitations 
consistent with National Effluent Limitations Guidelines, Federal Ocean 
Discharge Criteria, and State Water Quality Standards.

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DATES: Comments must be received by January 16, 2004.

ADDRESSES: Comments should be sent to: Director, 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: [email protected].

FOR FURTHER INFORMATION CONTACT: Ms. Diane Smith, Region 6, U.S. 
Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202-
2733. Telephone: (214) 665-7191.
    A complete draft permit and/or a fact sheet more fully explaining 
the proposal may be obtained from Ms. Smith. In addition, 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 
territorial seas off Texas. These generally include oil and gas 
platforms, but other types of facilities such as drill ships may also 
be subject to the permit. 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.
    Permit Summary. The permit contains limitations conforming to EPA's 
Oil and Gas extraction, Offshore Subcategory Effluent Limitations 
Guidelines at 40 CFR part 435 and additional requirements assuring that 
regulated discharges will cause no unreasonable degradation of the 
marine environment, as required by section 403(c) of the Clean Water 
Act. Limitations and conditions are also included to ensure compliance 
with State Water Quality Standards. Specific information on the 
derivation of those limitations and conditions is contained in the fact 
sheet.
    Specifically, the draft permit proposes to prohibit the discharge 
of drilling fluids, drill cuttings and produced sand. Produced water 
discharges are limited for oil and grease, 48-hour acute toxicity, and 
24-hour acute end-of-pipe toxicity. In addition to limits on oil and 
grease, the proposed permit includes a prohibition of the discharge of 
priority pollutants except in trace amounts in well treatment, 
completion, and workover fluids. A limit of ``No Free Oil'' is proposed 
for miscellaneous discharges, such as non-contact cooling water and 
ballast water, and on deck drainage discharges. Discharges of seawater 
and freshwater which have been used to pressure test existing pipelines 
and piping, to which treatment chemicals have been added, are also 
proposed to be authorized. Those seawater and freshwater discharges are 
proposed to be subject to limitations on free oil, concentration of 
treatment chemicals, and acute toxicity.

Other Legal Requirements

    Oil Spill Requirements. Section 311 of the CWA, ``the Act'', 
prohibits the discharge of oil and hazardous materials in harmful 
quantities. Discharges that are in compliance with NPDES permits are 
excluded from the provisions of section 311. However, the permit does 
not preclude the institution of legal action or relieve permittees from 
any responsibilities, liabilities, or penalties for other, unauthorized 
discharges of oil and hazardous materials which are covered by section 
311 of the Act.
    Endangered Species Act. The Environmental Protection Agency has 
evaluated the potential effects of issuance of this permit modification 
upon listed threatened or endangered species. Based on that evaluation, 
EPA has determined that authorization of the new discharges is not 
likely to adversely affect any listed threatened or endangered species. 
The proposal contains extensive controls to minimize the quantity and 
toxicity of discharged pollutants. While including limits which will 
minimize the discharge of toxic pollutants such as polynuclear aromatic 
hydrocarbons and prohibiting the discharge of drilling fluid and drill 
cuttings, the proposal additionally limits the toxicity of discharged 
produced water and chemically treated seawater and freshwater. The 
proposed authorization of the new discharge of chemically treated sea 
water or fresh water which has been used to hydrostatically test 
existing piping and existing pipelines includes controls on the amount 
of treatment chemical used and toxicity of the discharge and prohibits 
the discharge of free oil. Requirements proposed for both these new 
discharges are consistent with Ocean Discharge Criteria (40 CFR part 
125, subpart M) and ensure that sensitive marine species are protected.
    Based on the available information and analysis of the discharges 
described in the Fact Sheet for this proposed modification EPA Region 6 
has determined that authorization of the proposed discharges is not 
likely to adversely affect listed threatened or endangered species. EPA 
is seeking written concurrence from the National Marine Fisheries 
Service (NMFS) and the U.S. Fish and Wildlife Service on this 
determination.
    Ocean Discharge Criteria Evaluation. For discharges into waters of 
the territorial sea, contiguous zone, or oceans CWA section 403 
requires EPA to consider guidelines for determining potential 
degradation of the marine environment in issuance of NPDES permits. 
These Ocean Discharge Criteria (40 CFR part 125, subpart M) are 
intended to ``prevent unreasonable degradation of the marine 
environment and to authorize imposition of effluent limitations, 
including a prohibition of discharge, if necessary, to ensure this 
goal'' (45 FR 65942, October 3, 1980). Since this proposed permit will 
contain significantly more stringent limits than the previous permit, 
which are intended to protect water quality and reduce the discharge of 
toxic pollutants to the marine environment, the Region finds that 
discharges proposed to be authorized by the general permit reissuance 
will not cause unreasonable degradation of the marine environment.
    Coastal Zone Management Act. EPA has determined that the activities 
which are proposed to be authorized by this permit are consistent with 
the local and state Coastal Zone Management Plans. The proposed permit 
and consistency determination will be submitted to the State of Texas 
for interagency review at the time of public notice.
    Marine Protection, Research, and Sanctuaries Act. The Marine 
Protection, Research and Sanctuaries Act (MPRSA) of 1972 regulates the 
dumping of all types of materials into ocean waters and establishes a 
permit program for ocean dumping. In addition the MPRSA establishes the 
Marine Sanctuaries Program, implemented by the National Oceanographic 
and Atmospheric Administration (NOAA), which requires NOAA to designate 
ocean waters as marine sanctuaries for the purpose of preserving or 
restoring their conservation, recreational, ecological or aesthetic 
values. Pursuant to the Marine Protection and Sanctuaries Act, the NOAA 
has not designated any marine sanctuaries within the area covered under 
the permit.
    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

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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 Texas Water 
Quality Standards and the corresponding implementation guidance. The 
Region has solicited certification from the Texas Railroad Commission.
    Executive Order 12866. The Office of Management and Budget (OMB) 
has exempted this action from the review requirements of Executive 
Order 12291 pursuant to section 8(b) of that order. Guidance on 
Executive Order 12866 contain the same exemptions on OMB review as 
existed under Executive Order 12291. In fact, however, EPA prepared a 
regulatory impact analysis in connection with its promulgation of 
guidelines on which a number of the permit's provisions are based and 
submitted it to OMB for review. See 58 FR 12494.
    Paperwork Reduction Act. The information collection required by 
this permit has been approved by the 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).
    This reissued permit will not significantly change the reporting 
and application requirements from those under the previous general 
permit, which authorized discharges to the territorial seas off Texas. 
Since this permit is very similar in reporting and application 
requirements and in discharges which are required to be monitored as 
the Western Gulf of Mexico Outer Continental Shelf (OCS) general permit 
(GMG290000), the paperwork burdens are expected to be nearly identical. 
When it issued the OCS general permit, EPA estimated it would take an 
affected facility three hours to prepare the request for coverage and 
38 hours per year to prepare discharge monitoring reports. It is 
estimated that the time required to prepare the request for coverage 
and discharge monitoring reports for this permit will be the same.
    However, the alternative to obtaining authorization to discharge 
under this general permit is under an individual permit. The 
application and reporting burden of obtaining authorization to 
discharge under the general permit is expected to be significantly less 
than under an individual permit.
    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 indicated below, the permit 
modification proposed today is not a ``rule'' subject to the Regulatory 
Flexibility Act . EPA prepared a regulatory flexibility analysis, 
however, on the promulgation of the Offshore Subcategory guidelines on 
which many of the permit's effluent limitations are based. That 
analysis shows that issuance of this permit modification 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), 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 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 permit modification would 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.
    The Agency also believes that the permit 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, as proposed, 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. Additionally, EPA does not expect 
small governments to operate facilities authorized to discharge by this 
permit.
    National Environmental Policy Act. Issuance of an NPDES general 
permit for oil and gas extraction in the territorial seas of Texas is a 
major federal action significantly affecting the quality of the human 
environment. Thus, EPA has prepared a Draft EIS to evaluate the 
potential environmental consequences of its Federal (general permit) 
action, pursuant to its responsibilities under the National 
Environmental Policy Act of 1969 (NEPA).
    EPA issued a Notice of Intent (NOI) on February 12, 1993, to 
prepare an Environmental Impact Statement (EIS) on new source NPDES 
General Permits for the Offshore Subcategory of the Oil & Gas 
Extraction Category proposed for the territorial seas of both Texas and 
Louisiana. Scoping issues were considered through the NOI and other 
informal procedures, including interagency meetings conducted in July, 
1993. The Draft EIS was issued in January 1994, for review and comment 
from interested agencies, officials, groups and individuals. EPA's 
public hearing to receive comments on the Draft EIS was held on March 
16, 1994. The Final EIS issued in June 1996, however, covered only 
EPA's proposed general permit action for Louisiana, recognizing that a 
separate Final EIS would be prepared prior to its decision on the NPDES 
general permit for the territorial seas of Texas.
    EPA intends to rely on its original Draft EIS (which is available 
for review at the EPA Region 6 Office) in this continued NEPA review 
process for the current proposal to issue the oil and gas NPDES general 
permit for the territorial seas of Texas. In addition EPA will

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undertake consultations with the Advisory Council on Historic 
Preservation, National Marine Fisheries Service, the U.S. Fish and 
Wildlife Service, the Texas General Land Office, and the Texas Railroad 
Commission. EPA invites comment on the Draft EIS, particularly on 
whether there are significant new circumstances or information relevant 
to environmental concerns that bear on the proposed action or its 
impacts. EPA will review all comments made on the Draft EIS and draft 
NPDES general permit, and, unless EPA learns of significant new 
circumstances or information relevant to environmental concerns and 
bearing on the proposed action or its impacts, EPA will issue the Final 
EIS for the territorial seas of Texas, followed by a Record of Decision 
and final NPDES general permit.

Miguel I. Flores,
Director, Water Quality Protection Division, EPA Region 6.
[FR Doc. 03-28421 Filed 11-14-03; 8:45 am]
BILLING CODE 6560-50-P