[Federal Register Volume 71, Number 249 (Thursday, December 28, 2006)]
[Pages 78204-78206]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-22154]




Proposed NPDES General Permit for Discharges From the Oil and Gas 
Extraction Point Source Category to Coastal Waters in Texas (TXG330000)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Proposed NPDES General Permit Reissuance.


SUMMARY: EPA Region 6 today proposes to issue a National Pollutant 
Discharge Elimination System (NPDES) general permit regulating 
discharges from oil and gas wells in the Coastal Subcategory in Texas 
and regulating produced water discharges from wells in the Stripper and 
Offshore Subcategories which discharge into coastal waters of Texas.
    As proposed, the permit prohibits the discharge of drilling fluid, 
drill cuttings, produced sand and well treatment, completion and 
workover fluids. Produced water discharges are prohibited, except from 
wells in the Stripper Subcategory located east of the 98th meridian 
whose produced water comes from the Carrizo/Wilcox, Reklaw or Bartosh 
formations in Texas. Discharge of dewatering effluent is proposed to be 
prohibited, except from reserve pits which have not received drilling 
fluids and/or drill cuttings since January 15, 1997. The discharge of 
deck drainage, formation test fluids, sanitary waste, domestic waste 
and miscellaneous discharges is proposed to be authorized. We are 
proposing to reissue the existing NPDES General Permit for Discharges 
from the Oil and Gas Extraction Category to Coastal Waters of Texas 
with only one change, the addition of annual monitoring for dissolved 
solids from Stripper Subcategory produced water.

DATES: Comments must be received by February 26, 2007.

ADDRESS: Comments should be sent to: Ms. Diane Smith, 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].

Environmental Protection Agency (6WQ-CA), 1445 Ross Avenue, Dallas, 
Texas 75202-2733. Telephone: (214) 665-2145.
    A copy of the proposed permit, the fact sheet more fully explaining 
the proposal, and a copy of the Agency's Supplemental Environmental 
Assessment prepared pursuant to the National Environmental Policy Act 
may be obtained from Ms. Smith. 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 coastal waters of Texas, e.g., oil and gas extraction 
platforms, but other types of facilities may also be subject to the 
permit. As proposed, the permit would also authorize some produced 
water discharges from Stripper Subcategory wells to coastal waters. 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 
    The permit contains limitations conforming to EPA's Oil and Gas 
extraction, Coastal and Stripper Subcategory Effluent Limitations 
Guidelines at 40 CFR part 435 as well as requirements assuring that 
regulated discharges will comply with Texas State Water Quality 
Standards. Specific

[[Page 78205]]

information on the derivation of those limitations and conditions is 
contained in the fact sheet.

Other Legal Requirements

    State Certification. Under section 401(a)(1) of the Clean Water 
Act, EPA may not issue an NPDES permit until the State in which the 
discharge will occur grants or waives certification to ensure 
compliance with appropriate requirements of the Act and State law. EPA 
will seek certification from the Railroad Commission of Texas prior to 
issuing a final permit.
    National Environmental Policy Act. EPA's regulations at 40 CFR part 
6, Subpart F, which implement the National Environmental Policy Act of 
1969 (NEPA), 42 U.S.C., 4331, et seq., provide the procedures for 
carrying out the NEPA environmental review process for the issuance of 
new source NPDES permits. The purpose of this review process is to 
determine if any significant environmental impacts are anticipated by 
issuance of NPDES permits authorizing discharges from new sources. In 
order to make this determination, EPA prepared an environmental 
assessment in accordance with 40 CFR 6.604 when the current permit was 
drafted. Based on that environmental assessment document, EPA 
determined that there would be no significant impact as the result of 
issuing that permit. When the current permit was issued, a Statement of 
Findings documenting the completion of EPA's NEPA review process on 
this permit action was signed by the Regional Administrator.
    Since no new limits or changes in permit coverage are proposed, EPA 
has determined that reissuance of the permit does not rise to the level 
of a significant impact to the environment. Thus, EPA is not required 
to prepare another Environmental Assessment for this action.
    Endangered Species Act. When EPA issued the previous Permit 
TXG330000, effective October 21, 1993, covering existing sources, but 
not New Sources, the United States Fish and Wildlife Service (FWS or 
the Service) concurred with EPA's finding that the permit was unlikely 
to adversely affect any threatened or endangered species or their 
critical habitat. When EPA issued Permit TXG290000, effective February 
8, 1995, the Service also concurred with EPA's finding that the permit 
was unlikely to adversely affect any threatened or endangered species 
or their critical habitat. The Region found that adding New Source 
coverage to the permit is also unlikely to adversely affect any 
threatened or endangered species or its critical habitat. EPA received 
written concurrence from the FWS on May 2, 2001, and from the National 
Marine Fisheries Service (NMFS) on May 1, 2001, on that determination. 
Since no significant changes are proposed to the permit, EPA again 
finds that the reissued permit is unlikely to adversely affect any 
listed threatened or endangered species or their critical habitat. EPA 
will obtain concurrence with the determination from NMFS and FWS prior 
to issuing the final permit.
    Magnuson-Stevens Fishery Conservation and Management Act. The 1996 
amendments to the Magnuson-Stevens Fishery Conservation and Management 
Act set forth a new mandate to identify and protect important marine 
and anadromous fisheries habitats. The purpose of addressing habitat in 
this act is to further the goal of maintaining sustainable fisheries. 
Guidance and procedures for implementing these amendments are contained 
in NMFS regulations (50 CFR 600.805-600.930). These regulations specify 
that any Federal agency that authorizes or proposes to authorize an 
activity which would adversely affect an Essential Fish Habitat is 
subject to the consultation provisions of the Manguson-Stevens Act. The 
Texas Coastal Subcategory areas covered by this general permit include 
Essential Fish Habitat designated under the Magnuson-Stevens Act.
    Based on the prohibitions and limitations and other requirements 
contained in this proposed general permit, as well as the Essential 
Fish Habitat Assessment prepared for this permit reissuance, the Region 
previously found that issuance of this permit would be unlikely to 
adversely affect Essential Fish Habitat. EPA received written 
concurrence from NMFS on that determination. Since there are very few 
changes proposed to the permit with this reissuance, EPA again finds 
that its issuance is unlikely to adversely affect Essential Fish 
Habitat. EPA is seeking concurrence with that decision from NMFS.
    Coastal Zone Management Act. The Coastal Zone Management Act and 
its implementing regulations (15 CFR part 930) require that any 
Federally licensed or permitted activity affecting the coastal zone of 
a state with an approved Coastal Zone management Program be consistent 
with that Program. EPA has concluded, based on the conditions, 
limitations and prohibitions of this permit that the discharges 
associated with this permit are consistent with the Texas Coastal 
Management Program goals and policies. EPA previously received a 
consistency determination from the Texas Coastal Coordination Council 
on February 13, 2001, and is seeking another consistency determination 
prior to issuing the final permit.
    Historic Preservation Act. Facilities which adversely affect 
properties listed or eligible for listing in the National Register of 
Historical Places are not authorized to discharge under this permit.
    Economic Impact (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 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; create a 
serious inconsistency or otherwise interfere with an action taken or 
planned by another agency; materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order. EPA has determined 
that this general permit is not a ``significant regulatory action'' 
under the terms of Executive Order 12866 and is therefore not subject 
to formal OMB review prior to proposal.
    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 (discharge monitoring 
    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. This permit is not a ``rule'' 
subject to the Regulatory Flexibility Act. EPA prepared a regulatory 
flexibility analysis, however, on the promulgation of the Coastal 
Subcategory guidelines on which many of the permit's effluent

[[Page 78206]]

limitations are based. That analysis shows that compliance with the 
permit requirements will not result in a significant impact on 
dischargers, including small businesses, covered by this permit. EPA 
Region 6, therefore, concludes that the permit being proposed today 
will not have a significant impact on a substantial number of small 
    Unfunded Mandates Reform Act. Section 201 of the Unfunded Mandates 
Reform Act (UMRA), Pub. L. 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 Clean Water Act (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 thinks it is unlikely that this permit issuance would contain a 
Federal requirement that might 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 issuance 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 issuance 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.

    Dated: December 19, 2006.
William K. Honker,
Acting Director, Water Quality Protection Division, EPA Region 6.
[FR Doc. E6-22154 Filed 12-27-06; 8:45 am]