[Federal Register Volume 69, Number 68 (Thursday, April 8, 2004)]
[Notices]
[Pages 18570-18572]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7977]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7644-6]


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).

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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

[[Page 18571]]

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 (415) 972-3510. 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

[[Page 18572]]

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.
[FR Doc. 04-7977 Filed 4-7-04; 8:45 am]
BILLING CODE 6560-50-P