[Federal Register Volume 69, Number 245 (Wednesday, December 22, 2004)]
[Notices]
[Pages 76740-76743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27987]



[[Page 76740]]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7851-2]


Final National Pollutant Discharge Elimination System (NPDES) 
General Permit for the Offshore Subcategory of the Oil and Gas 
Extraction Point Source Category for Operations Located in the Eastern 
Portion of Outer Continental Shelf (OCS) of the Gulf of Mexico 
(GMG460000) and Record of Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Issuance of NPDES General Permit.

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SUMMARY: On December 9, 2004, the Regional Administrator of EPA Region 
4 (the ``Region'') reissued the National Pollutant Discharge 
Elimination System (NPDES) general permit for operators located in the 
Outer Continental Shelf (OCS) of the eastern portion of the Gulf of 
Mexico, General Permit No. GMG460000, (formerly NPDES Permit no. 
GMG280000) for discharges in the Offshore Subcategory of the Oil and 
Gas Extraction Point Source Category cited at 40 Code of Federal 
Regulations (CFR) Part 435, subpart A, which includes guidelines for 
the discharges of non-aqueous drilling fluids (i.e., synthetic-based 
drilling fluids) promulgated on January 22, 2001. This permit, which 
shall become effective on January 1, 2005, and will expire on December 
31, 2009, authorizes discharges from exploration, development, and 
production facilities located in, and discharging to, all Federal 
waters of the eastern portion of the Gulf of Mexico seaward 200 meter 
contour depth outer boundary of the territorial seas offshore Florida 
and Alabama in the Eastern Planning Area and facilities in Mobile and 
Visoca Knoll lease blocks located seaward of the outer boundary of the 
territorial seas offshore Alabama and Mississippi in the Central 
Planning Area. Individual NPDES permits will be issued for operating 
facilities on lease blocks traversed by and shoreward of the 200 meter 
depth in the Eastern Planning area. The previous Region 4 general 
permit for Offshore Oil and Gas activities was published at 63 Federal 
Register (FR) 55718 on October 16, 1998, revised on March 14, 2001, at 
63 FR 14988, and expired on October 31, 2003.
    The proposed NPDES general permit was published at 69 FR 1743 on 
January 12, 2004. Three public hearings pertaining to the proposed 
permit, draft Supplemental Environmental Impact Statement (SEIS), and 
draft Ocean Discharge Criteria Evaluation (ODCE) document [i.e., Clean 
Water Act (CWA) Section 403 Determination] were held in the Gulf Coast 
area during March 16-18, 2004, and the public comment period for these 
documents ended on April 20, 2004.
    This notice constitutes the Agency's Record of Decision in 
accordance with the Council on Environmental Quality regulations at 40 
CFR 1505.2 and EPA regulations at 40 CFR 6.606. Draft and Final SEISs 
were issued February 13, 2004 and August 27, 2004, respectively, that 
considered three permitting options available to EPA. Alternative A was 
the issuance of a general permit to include limits and permit 
conditions addressing the use of non-aqueous-based drilling fluids 
[which include synthetic-based drilling fluids (SBFs)] for existing and 
new sources in areas in general permitting coverage area. Alternative B 
was the issuance of a general permit that is unchanged from the 
previous general permit (1998), which did not include permit limits 
and/or conditions pertaining to the use of SBFs, and Alternative C was 
no issuance of any general permit. The SEIS process updated information 
contained in the Final EIS associated with the previous NPDES general 
permit for Offshore Oil and Gas activities in Region 4.
    The final SEIS (EPA 904-9-04-004, dated July 2004) addressed the 
potential impacts to the environment from the use of SBFs, 
supplementing the final EIS completed in 1998. Alternative A, EPA's 
preferred alternative, has been found to be adequately protective of 
the offshore marine environment. In the process of reaching this 
finding, the SEIS considered available mitigation for avoiding and 
minimizing the adverse impacts to federal OCS waters and the coastal 
waters of the adjoining states. The proposed general permit contains 
numerous protective specifications which have been evaluated in the 
SEIS. The effluent discharge limitations, the SBF toxicity and 
biodegradation rate testing requirements, and the permit conditions 
requiring seabed surveys and agency coordination, are all deemed 
necessary mitigation to ensure the protection of the environment.
    The general permit is also protective of state coastal waters. To 
comply with the federal consistency provisions of the Coastal Zone 
Management Act (CZMA), the permit includes a condition whereby an 
applicant for permit coverage must provide evidence that the proposed 
oil and gas extraction project has received the applicable state 
determination of consistency prior to EPA granting coverage.
    EPA also considered in the SEIS the various applicable laws and 
regulations administered by EPA or other agencies which provide 
additional direct or indirect environmental mitigation. The Minerals 
Management Service (MMS) has the broadest regulatory mandate for OCS 
oil and gas extraction activities. The environmental mitigation 
provided by the general permit, as issued, will strengthen the 
mitigation administered by MMS and other federal environmental 
agencies.
    The public review of the SEIS and proposed general permit did not 
reveal any additional significant adverse impacts not addressed in the 
SEIS. While the present knowledge of the fate and effects of SBF is 
considered adequate for regulatory purposes, understanding of the long 
term impacts of the use of SBF will come from ongoing study. Should 
new, pertinent technical information become available from these 
studies, that data would be fully evaluated by EPA relative to the 
present limitations and conditions of the general permit. To accomplish 
this, a re-opener condition'' is included in the permit.
    General permit coverage for all permittees under the previous 
general permit (NPDES Permit No. GMG280000) will cease 30 days from the 
effective date of this permit. In order to obtain coverage under the 
reissued general permit, all permittees with existing general coverages 
must submit to EPA a new Notice of Intent (NOI) no later than 30 days 
after the effective date. All facility owners of newly acquired leases, 
on which a discharge will take place before the expiration date of the 
reissued general permit (operating facilities) within the area covered 
by the general permit, must file a written NOI for existing and for new 
sources prior to discharge. Non-operational facilities, i.e., those on 
which no production and no discharges have taken place in the two (2) 
years prior to the effective date of the reissued general permit, are 
only eligible for coverage once a new MMS-approved Exploration Plan 
(EP), Development Production Plan (DPP) or Development Operational 
Coordination Document (DOCD) (or proof that MMS previously approved an 
EP, DPP or DOCD) is submitted to EPA. Otherwise, coverage under the 
previous general permit will terminate on the effective date of the 
reissued general permit. For all applicants, the NOI must contain the 
information set forth in 40 CFR 122.28(b)(2)(ii) and Part I.A.4 of the 
reissued NPDES general permit.
    In accordance with Oil and Gas Extraction Point Source Category, 
Offshore Subcategory Effluent

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Guidelines and New Source Performance Standards (NSPS) published at 58 
FR 12454 on March 4, 1993, and amended at 66 FR 6850 on January 22, 
2001, EPA Region 4 made a draft SEIS available concurrently with the 
draft general permit for review during the public comment period that 
addressed potential impacts from facilities that may be defined as new 
sources in the context of a comprehensive offshore permitting strategy. 
As set forth in Section 4.1 of the final SEIS (EPA 904/9-04-004), the 
Regional Administrator has determined that the discharges authorized 
under the reissued general permit would not pose environmental harm 
within the general permit coverage area.
    The final NPDES general permit includes, best conventional 
pollutant control technology (BCT), and best available technology 
economically achievable (BAT) limitations for existing sources and NSPS 
limitations for new sources as promulgated in the effluent guidelines 
for the offshore subcategory at 58 FR 12454 and amended at 66 FR 6850 
(March 4, 1993 and January 22, 2001, respectively). Other permit 
conditions are included based on the Best Professional Judgement of the 
permit writer.

DATES: The NPDES General Permit shall become effective on January 1, 
2005, and shall expire at midnight on December 1, 2009. The final 
permit, the amendment to the fact sheet (which includes responses to 
comments on the proposed general permit), an electronic version of the 
EPA-Region 4 approved, optional Discharge Monitoring Report, and the 
final ODCE document can be downloaded from the following Internet Web 
site: http://www.epa.gov/region4/water/permits/.
    For Administrative Record and Further Information: Contact Ms. 
Karrie-Jo Robinson-Shell, Environmental Engineer by phone at (404) 562-
9308, by e-mail at [email protected], or at the following mail 
address: Water Management Division, NPDES and Biosolids Permits 
Section, U.S. EPA-Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth 
Street, SW., Atlanta, GA 30303-8960, Attention: Ms. Karrie-Jo Robinson-
Shell.

SUPPLEMENTARY INFORMATION:

I. Procedures for Reaching a Final Permit Decision

    EPA prepared draft and final SEISs that evaluated the potential 
impacts of the proposed Federal license (issuance of the general 
permit) within the context of a comprehensive NPDES permitting strategy 
for the Region 4 jurisdictional area of the Gulf of Mexico. The process 
was conducted in accordance with the regulations implementing the 
National Environmental Policy Act (NEPA). The findings of the final 
SEIS, the ODCE (i.e., CWA Section 403(c) Evaluation) and public 
comments were used in reaching the decision to reissue the final NPDES 
general permit with the limitations and conditions, therein. Important 
interagency coordination occurred between the EPA, MMS, The National 
Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service 
(USFWS). A significant amount of information and assistance was 
obtained from MMS. Since EPA will be conducting individual permitting 
outside the general permit coverage area of new source development/
production projects, it intends to coordinate its efforts with MMS on 
the environmental reviews required of each agency by National 
Environmental Policy Act (NEPA).
    EPA has considered all written comments submitted on the proposed 
general permit, draft SEIS, draft ODCE document, as well as all 
comments received during the three public hearings. A summary of the 
comments on the proposed permit with EPA responses to these comments, 
the final general permit, the fact sheet, amendment to the fact sheet, 
and final ODCE document can be downloaded from the following Internet 
Web site: http://www.epa.gov/region4/water/permits/. Copies of these 
documents, which are made available to the public, state agencies and 
local governments as part of Region 4's administrative record, can also 
be obtained by contacting: Ms. Karrie-Jo Robinson-Shell, as directed 
above.
    A formal hearing is available to challenge any NPDES permit issued 
according to the regulations at 40 CFR 124.15 except for a general 
permit as cited at 40 CFR 124.71. 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 as authorized at 40 CFR 122.28, and then request a 
formal hearing on the issuance or denial of an individual permit. 
Additional information regarding these procedures is available by 
contacting Mr. Kevin Smith, Associate Regional Counsel, Office of 
Environmental Accountability, at (404) 562-9525.

II. Procedures For Obtaining General Permit Coverage

    Notice of Intent requirements for obtaining coverage for operating 
facilities are stated in Part I Section A.4 of the general permit. 
Coverage under the reissued general permit is effective as of the 
postmarked date of all NOIs deemed by EPA to be complete. EPA will 
notify applicants within 21 days of the postmarked date of the NOI 
letter to assign an NPDES general permit number or to identify any 
deficiencies with the NOI.

III. Exclusion of Non-Operational Leases

    This permit does not apply to non-operational leases, i.e., those 
on which no production and no discharge has taken place in the two (2) 
years prior to the effective date of the reissued general permit. EPA 
will not accept NOIs for such facilities, and the general permit will 
not cover such leases. Non-operational facilities will lose coverage 
under the previous general permit on the effective date of the reissued 
general permit. No subsequent exploration, development or production 
activities may take place on these facilities until and unless the 
permittee has obtained coverage under the new general permit or an 
individual permit. EPA will not process an NOI or individual permit 
application for non-operational until such time that documentation is 
submitted to EPA that MMS previously approved an EP, DPP or DOCD or a 
new EP, DPP or DOCD.

IV. State Water Quality Certification

    Because state waters are not included in the area covered by the 
general permit, its effluent limitations and monitoring requirements 
are not subject to state water quality certification under CWA Section 
401.

V. State Consistency Determination

    Region 4 is required under CZMA to provide all necessary 
information for the States of Mississippi, Alabama and Florida to 
review this action for consistency with their approved Coastal 
Management Programs. A copy of the consistency determination on the 
proposed activities was sent to each affected State, along with copies 
of the proposed NPDES general permit, fact sheet, draft ODCE, and draft 
SEIS. Each state concurred with EPA's finding of consistency.

VI. Administrative Record

    All relevant documents pertaining to this permit issuance are on 
file and may be inspected any time between 8:15 a.m. and 4:30 p.m., 
Monday through Friday

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at: Water Management Division, NPDES and Biosolids Permits Section, 
U.S. EPA-Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, 
SW., Atlanta, GA 30303-8960, Attention: Ms. Karrie-Jo Robinson-Shell. 
Copies may also be obtained by written request to this same address. 
Electronic copies of the final NPDES general permit, the fact sheet, 
amendment to the fact sheet (which includes EPA's response to 
comments), and final ODCE may be downloaded at http://www.epa.gov/region4/water/permits.

VII. 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 review by the Office of Management and Budget 
(OMB) 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.

VIII. 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 
Procedures Act (APA) or any other statue, 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 rule making 
requirements, including the requirement for a general notice of 
proposed rule making, under APA Section 533 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.'' APA Section 551(4) defines rule as 
``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 or requirements of 
an agency * * * '' APA Section 551(6) defines orders as ``a final 
disposition * * * of an agency in a matter other than rule making but 
including licensing.'' APA Section 551(8) defines ``license'' to 
``include * * * an agency permit * * * '' 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. APA 
Section 551(5) defines ``rule making'' as ``the agency process for 
formulating, amending, or repealing a rule.'' By its terms, Section 553 
applies only to rules and not to orders, exempting by definition 
permits.

IX. Unfunded Mandates Reform Act

    Section 201 of the Unfunded Mandates Reform Act (UMRA), 2 U.S.C. 
1501, et seq, 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 201 
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 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 reissuance 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 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 also would 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 permit. 
Additionally, EPA does not expect small governments to operate 
facilities authorized to discharge by this permit.

X. Paperwork Reduction Act

    The information collection required by this permit has been 
approved by 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 [(NPDES Discharge Monitoring Reports (DMRs)].
    Since this permit is very similar in reporting and application 
requirements and in discharges which are required to be monitored as 
the previous Eastern Gulf of Mexico OCS general permit (NPDES Permit 
No. GMG280000) the paperwork burdens are expected to be nearly 
identical. When it issued the previous 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 DMRs. It is 
estimated that the time required to prepare the request for coverage 
and DMRs for the reissued permit will be approximately the same.

XI. Other Legal Requirements

Oil Spill Requirements

    Section 311 of the Clean Water Act prohibits the discharge of oil 
and hazardous materials in harmful quantities. Routine discharges that 
are in compliance with NPDES permits are excluded from the provisions 
of section 311. However, the permits do not

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preclude the institution of legal action or relieve permittees from any 
responsibilities, liabilities, or penalties for other, unauthorized 
discharges of oil and hazardous materials that are covered by section 
311 of the Act.

Endangered Species Act

    The Endangered Species Act (ESA) imposes important requirements 
upon, federal agencies regarding endangered species of fish, wildlife, 
or plants that have been designated as critical. Its implementing 
regulations (50 CFR Part 402) require the Regional Administrator to 
ensure, in consultation with the Secretaries of Interior and Commerce, 
that any action authorized, funded or carried out by EPA is not likely 
to jeopardize the continued existence of any endangered or threatened 
species or adversely affect its critical habitat [40 CFR 122.49(c)]. 
Implementing regulations for the ESA establish a process by which 
agencies consult with one another to ensure that issues and concerns of 
both the NMFS and the USFWS collectively are addressed. The NMFS and 
USFWS have responded to EPA's initiation of the coordination process 
under the regulations set forth by section 7 of the Endangered Species 
Act. The species identified by NMFS and USFWS as threatened or 
endangered species within the permit coverage area have been assessed 
for potential effects from the activities covered by the proposed 
permit in a biological assessment incorporated in the draft SEIS. This 
biological assessment was submitted to the NMFS and USFWS along with 
the proposed permit for consistency review and concurrence on the 
Region's finding of no adverse effect. This coordination is appended to 
the final EIS. Concurrence from the USFWS and the NMFS was received on 
October 10, 2004, and November 16, 2004, respectively. Both agencies 
stated that EPA's proposed action to reissue the general permit is not 
likely to affect resources protected under the ESA.
    The NMFS, in association with the Gulf of Mexico Fishery Management 
Council, administers the Essential Fish Habitat (EFH) requirements 
established by the Magnuson-Stevens Fishery Conservation and Management 
Act. Federal agencies are required to consult with NMFS on any activity 
that may adversely effect fisheries. EFH coordination with NMFS 
occurred in conjunction with the SEIS which contains the EFH assessment 
information. EPA requested comments from NMFS on the EFH assessment and 
finding of minimal effects. The NMFS offered comments which included 
recommendations for minimizing potential adverse impacts of the 
discharges. Comments were fully considered and responded to by EPA in 
the FSEIS.

Ocean Discharge Criteria Evaluation

    For discharges into waters located seaward of the inner boundary of 
the territorial seas, the CWA Section 403 requires that NPDES permits 
consider guidelines for determining the potential degradation of the 
marine environment. The guidelines, or 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).
    A final ODCE determination of no unreasonable degradation has been 
made by Region 4 based comments and information submitted during the 
public comment period for the proposed general permit. The potential 
effects of discharges under the proposed permit limitations and 
conditions are assessed in this document available from Region 4. The 
ODCE states that, based on the available information, the permit 
limitations are sufficient to determine that no unreasonable 
degradation should result from the permitted discharges.

Marine Protection, Research, and Sanctuaries Act

    No marine sanctuaries as designated by the Marine Protection, 
Research, and Sanctuaries Act exist in the area to which the OCS permit 
applies.

Regulatory Flexibility Act

    After review of the facts presented above, I hereby certify, 
pursuant to the provisions of 5 U.S.C. 605(b), that these proposed 
general permits will not have a significant impact on a substantial 
number of small entities. This certification is based on the fact that 
the vast majority of the parties regulated by this permit have greater 
than 500 employees and are not classified as small businesses under the 
Small Business Administration regulations established at 49 FR 5024 et 
seq. (February 9, 1984). For those operators having fewer than 500 
employees, this permit issuance will not have significant economic 
impact. These facilities are classified as Major Group 13--Oil and Gas 
Extraction SIC Crude Petroleum and Natural Gas.

James D. Giattina,
Director, Water Management Division.
[FR Doc. 04-27987 Filed 12-21-04; 8:45 am]
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