[Federal Register Volume 70, Number 45 (Wednesday, March 9, 2005)]
[Rules and Regulations]
[Pages 11560-11563]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4467]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 122

[OW-2002-0068; FRL-7882-2]
RIN 2040-AE71


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Today's action postpones until June 12, 2006, the requirement 
to obtain National Pollutant Discharge Elimination System (NPDES) storm 
water permit coverage for oil and gas construction activity that 
disturbs one to five acres of land. This is the second postponement 
promulgated by EPA for these activities. This postponement will allow 
the Agency additional time to complete its analysis of the issues 
raised by stakeholders about storm water runoff from construction 
activities at oil and gas sites and of practices and methods for 
controlling these storm water discharges to mitigate impacts on water 
quality, as appropriate. Within six months of today's action, EPA 
intends to publish a notice of proposed rulemaking in the Federal 
Register for addressing these discharges and to invite public comments.

DATES: This final rule is effective on March 9, 2005.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. OW-2002-0068. All documents in the docket are listed in the EDOCKET 
index at http://www.epa.gov/edocket. Although listed in the index, some 
information is not publicly available, i.e., confidential business 
information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, is not 
placed on the Internet and will be publicly available only in hard copy 
form. Publicly available docket materials are available either 
electronically in EDOCKET or in hard copy at the Docket, EPA/DC, EPA 
West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The 
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.

FOR FURTHER INFORMATION CONTACT: Jeff Smith, Office of Wastewater 
Management, Office of Water, Environmental Protection Agency (4203M), 
1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 
(202) 564-0652; fax number: (202) 564-6431; e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Affected Entities

    Entities potentially affected by this action include operators of 
construction activities disturbing at least one acre, but less than 
five acres of land at oil and gas sites, North American Industrial 
Classification System (NAICS) codes and titles: 211--Oil and Gas 
Extraction, 213111--Drilling Oil and Gas Wells, and 213112--Support 
Activities for Oil and Gas Operations.
    This description is not intended to be exhaustive, but rather 
provides a guide for readers regarding entities likely to be affected 
by this action. This description identifies the types of entities that 
EPA is now aware could potentially be affected by this action. Other 
types of entities not identified could also be affected. To determine 
whether your facility or company is affected by this action, you should 
carefully examine the applicability criteria in 40 CFR 122.26(b)(15) 
and (e)(8). 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.

[[Page 11561]]

B. 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. By providing such relief, this rule 
``relieves a restriction'' on these dischargers. 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 upon publication. The March 10, 2005, 
deadline this action extends is less than thirty days after the 
publication of this rule. Making this action effective as soon as it is 
published will help reduce any confusion by those affected by the rule 
regarding the necessity for obtaining permit coverage. Therefore, a 
thirty-day waiting period is unnecessary and would be contrary to the 
public interest.

II. Background

    On January 18, 2005 (70 FR 2832), EPA proposed a fifteen month 
postponement of the permit requirement for oil and gas construction 
activity disturbing one to five acres, from March 10, 2005, to June 12, 
2006, to allow time for EPA to complete its analysis of the economic 
impacts and the legal and procedural implications of the options that 
the Agency is considering regarding the regulation of storm water 
discharges from oil and gas-related construction sites, and to evaluate 
the practices and methods operators employ to control storm water 
discharges from the sites affected by this rule. In that proposal, EPA 
explained the background of the NPDES construction permit requirements, 
and why EPA believes it is appropriate to provide an additional fifteen 
month 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 a modest number of comments on its proposal to provide 
an additional fifteen month postponement of permit requirements for 
discharges from oil and gas-related construction activity disturbing 
one to five acres. EPA's responses to all of these comments may be 
found in the Response to Comment document that is part of the docket 
for this final rule.

IV. Today's Action

    In today's action, EPA is extending until June 12, 2006, the 
deadline for obtaining NPDES storm water permits for oil and gas 
construction activity that disturbs at least one acre, but less than 
five acres of land and sites disturbing less than one acre that are a 
part of a larger common plan of development or sale that disturbs 
between one and five acres. The text finalized at Sec.  122.26(e)(8) 
does not create any duty to apply for an NPDES permit that did not 
already exist as a result of EPA's Phase II regulations. Rather, this 
amendment merely extends the permitting deadline for a certain class of 
dischargers.
    During the next fifteen months, EPA intends to (1) complete the 
economic impact analysis; (2) complete the evaluation of the legal and 
procedural implications associated with several options that the Agency 
is considering with regard to regulation of storm water discharges from 
oil and gas-related construction sites; and (3) continue to evaluate 
practices and methods operators may employ to control storm water 
discharges from the sites affected by this rule. One of the issues EPA 
will be examining during this period is how best to resolve questions 
posed by outside parties regarding section 402(l)(2) of the Clean Water 
Act, which exempts certain storm water discharges from oil and gas 
exploration, production, processing, or treatment operations or 
transmission facilities from NPDES permit requirements. EPA intends to 
convene at least one public meeting with stakeholders for the purpose 
of exchanging information on current industry practices and the 
effectiveness of those practices in protecting water quality and 
obtaining input on the appropriate approach for addressing construction 
storm water discharges from this industry. EPA will publish a separate 
notice in the Federal Register with information about this public 
meeting. Finally, EPA expects to propose and take some subsequent final 
action based on the Agency's conclusions following these activities 
prior to June 12, 2006.

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.

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

[[Page 11562]]

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 Small Business Administration 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. Today's 
action merely postpones the permit authorization deadline for oil and 
gas construction activity that disturb one to five acres. Because EPA 
is postponing a deadline for numerous small entities to comply with 
NPDES permit requirements, this final action will not impose any burden 
on any small entity.

D. 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. 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 activity 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 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 activity 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.''
    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 activity 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 Executive Order 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 (1) delay the permit authorization 
requirement for affected small oil and gas operations by an additional 
fifteen months and (2) allow

[[Page 11563]]

EPA time necessary to develop a further proposal to address storm water 
discharges from such activities.

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''), Public Law 
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. 
However, EPA is exploring the availability and potential use of 
voluntary consensus standards developed consistent with the NTTAA and 
the requirements of the CWA as a means of addressing storm water runoff 
from oil and gas construction activities as part of a future 
rulemaking.

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 9, 2005.

K. Petitions for Judicial Review

    Under section 509(b)(1) of the Clean Water Act, judicial review of 
this action may only be had by filing a petition for review in the 
United States Court of Appeals within 120 days after March 9, 2005.

List of Subjects in 40 CFR Part 122

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

    Dated: March 3, 2005.
Stephen L. Johnson,
Acting Administrator.

0
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

0
1. The authority citation for part 122 continues to read as follows:

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

Subpart B--[Amended]

0
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) * * *
    (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 June 12, 2006.
* * * * *
[FR Doc. 05-4467 Filed 3-8-05; 8:45 am]
BILLING CODE 6560-50-P