[Federal Register Volume 72, Number 109 (Thursday, June 7, 2007)]
[Pages 31575-31578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11035]




Notice of Final NPDES General Permit; Final NPDES General Permit 
for New and Existing Sources and New Dischargers in the Offshore 
Subcategory of the Oil and Gas Extraction Category for the Western 
Portion of the Outer Continental Shelf of the Gulf of Mexico 

SUMMARY: EPA Region 6 today issues a final National Pollutant Discharge 
Elimination System (NPDES) general permit for the Western Portion of 
the Outer Continental Shelf of the Gulf of Mexico (No. GMG290000). The 
general permit authorizes discharges from new sources, existing 
sources, and new dischargers in the Offshore Subcategory of the Oil and 
Gas Extraction Point Source Category (40 CFR Part 435, Subpart A). The 
reissued permit will become effective October 1, 2007. The existing 
permit published in the Federal Register, at 69 FR 60150 on October 7, 
2004, authorizes discharges from exploration, development, and 
production facilities located in and discharging to Federal waters of 
the Gulf of Mexico seaward of the outer boundary of the territorial 
seas offshore of Louisiana and Texas. Today's action reissues the 
current permit which will expire on November 7, 2007.
    A copy of the Region's responses to comments and the final permit 
may be obtained from the EPA Region 6 internet site: http://www.epa.gov/earth1r6/6wq/6wq.htm.

Ross Avenue, Dallas, Texas 75202, Telephone: (214) 665-2145, or via e-
mail to the following address: [email protected].

SUPPLEMENTARY INFORMATION: Regulated entities. EPA intends to use the 
reissued permit to regulate oil and gas extraction facilities located 
in the Outer Continental Shelf of the Western Gulf of Mexico, e.g., 
offshore oil and gas extraction platforms, but other types of 
facilities 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.
    Oil Spill Requirements. Section 311 of the Clean Water Act, (CWA or 
the Act),

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prohibits the discharge of oil and hazardous materials in harmful 
quantities. Discharges that are authorized by 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 (ESA). As explained at 69 FR 39478 (June 30, 
2004), EPA found that reissuance of the General Permit for the Outer 
Continental Shelf of the Western Gulf of Mexico (OCS general permit) 
was not likely to adversely affect any listed threatened or endangered 
species or designated critical habitat. EPA requested written 
concurrence on that determination from the National Marine Fisheries 
Service (NMFS). In a letter dated July 12, 2004, NMFS provided such 
concurrence on the current OCS general permit. NMFS also previously 
concurred with that determination when the permit was reissued in 1991 
and 1998 and when it was modified in 1993 and 2001. When proposing this 
reissued permit, EPA found that no changes were proposed that would 
decrease the level of protection the permit affords threatened or 
endangered species. The main changes included new intake structure 
requirements and more stringent whole effluent toxicity limits based on 
sub-lethal effects. Since those changes increase the level of 
protection, EPA again found that reissuance of the permit was not 
likely to adversely affect any listed threatened or endangered species 
or their critical habitat. Concurrence with this determination was 
requested from NMFS on December 21, 2006. NMFS has not yet concurred in 
that determination.
    To prevent further delay in this permit action, EPA is reissuing 
the general permit at this time in accordance with Section 7(d) of the 
Endangered Species Act. To avoid an irreversible or irretrievable 
commitment of resources, the reissued permit includes a re-opener 
clause that will enable the Agency to modify the permit should further 
consultation reveal a need to formulate or implement reasonable and 
prudent alternative measures.
    Ocean Discharge Criteria Evaluation. For discharges into waters of 
the territorial sea, contiguous zone, or oceans, CWA section 403(c) 
requires EPA to consider guidelines for determining potential 
degradation of the marine environment when issuing 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). EPA Region 6 has previously determined that discharges in 
compliance with the OCS general permit will not cause unreasonable 
degradation of the marine environment. EPA has also recently completed 
a study of the effects of produced water discharges on hypoxia in the 
northern Gulf of Mexico and found that these discharges do not have a 
significant impact. (See Predicted Impacts from Offshore Produced Water 
Discharges on Hypoxia in the Gulf of Mexico, Limno-Tech, Inc., 2006). 
Since this reissued permit contains limitations that will protect water 
quality and in general reduce the discharge of toxic pollutants to the 
marine environment, the Region finds that discharges authorized by the 
reissued general permit will not cause unreasonable degradation of the 
marine environment.
    Coastal Zone Management Act. When the previous permit was issued, 
EPA determined that the activities that were authorized were consistent 
with the local and state Coastal Zone Management Plans. Those 
determinations were submitted to the appropriate State agencies for 
certification. Certification was received from the Coastal Management 
Division of the Louisiana Department of Natural Resources in a letter 
dated July 12, 2004 and from the Railroad Commission of Texas by a 
letter dated August 20, 2004. EPA has again determined that activities 
proposed to be authorized by this reissued permit are consistent with 
the local and state Coastal Zone Management Plans. The proposed permit 
and consistency determination was submitted to the State of Louisiana 
and the State of Texas for interagency review at the time of public 
notice. Concurrence was received from the both Louisiana Department of 
Natural Resources and Railroad Commission of Texas. Both letters of 
concurrence were dated February 23, 2007.
    Marine Protection, Research, and Sanctuaries Act. The Marine 
Protection, Research and Sanctuaries Act (MPRSA) of 1972 regulates the 
transportation for dumping of materials into ocean waters and 
establishes permit programs for ocean dumping. The NPDES permit EPA 
reissues today does not authorize dumping under MPRSA.
    In addition the MPRSA establishes the Marine Sanctuaries Program, 
implemented by the National Oceanographic and Atmospheric 
Administration (NOAA), which requires NOAA to designate certain 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, NOAA has 
designated the Flower Garden Banks, an area within the coverage of the 
OCS general permit, a marine sanctuary. The OCS general permit 
prohibits discharges in areas of biological concern, including marine 
sanctuaries. The permit authorizes discharges incidental to oil and gas 
production from a facility which predates designation of the Flower 
Garden Banks National Marine Sanctuary as a marine sanctuary. EPA has 
previously worked extensively with NOAA to ensure that authorized 
discharges are consistent with regulations governing the National 
Marine Sanctuary.
    State Water Quality Standards and State Certification. The permit 
does not authorize discharges to State waters; therefore, the state 
water quality certification provisions of CWA section 401 do not apply 
to this proposed action.
    Executive Order 12866. Under Executive Order 12866 (58 FR 51735 
(October 4, 1993)) EPA 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 
    Paperwork Reduction Act. The information collection required by 
this permit has been approved by the Office

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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).
    Since this permit reissuance will not significantly change the 
reporting and application requirements from those of the previous 
Western Gulf of Mexico Outer Continental Shelf (OCS) general permit 
(GMG290000), 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 discharge monitoring reports. 
It is estimated that the time required to prepare the request for 
coverage and discharge monitoring reports for the reissued permit will 
be the same and will not be affected by this action.
    However, the alternative to obtaining authorization to discharge 
under this general permit is to obtain an individual permit. The 
application and reporting burden of obtaining authorization to 
discharge under the general permit is expected to be significantly less 
than that 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 
reissuance 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 reissuance of this permit 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), 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 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 permit reissuance will 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.
    EPA also believes that the permit will 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 also will 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. In connection with its oil and 
gas leasing programs under the Outer Continental Shelf Lands Act, the 
Minerals Management Service of the Department of Interior (MMS) has 
prepared and published draft and final environmental impact statements 
(EIS) on potential impacts of oil and gas operations in the Central and 
Western Gulf of Mexico for the 2007--2012 period. MMS published a 
Notice of Availability of the Final EIS (FEIS) at 72 FR 18667 (April 
13, 2007). EPA was a cooperating agency on MMS's EIS and now relies on 
it in reissuing this permit. This final permit decision is thus also a 
Record of Decision completing National Environmental Policy Act (NEPA) 
review on reissuance of the OCS General Permit. It should be noted, 
however, that EPA's decision to reissue the permit precludes no 
potential MMS decision on its proposed lease sales.
    Because EPA authority to include mitigation conditions in NPDES 
permits on the basis of NEPA review is limited by the Clean Water Act, 
the EIS was primarily useful in consideration of the two types of 
potential alternatives available to EPA. First, had the EIS revealed 
unacceptable environmental impacts would occur as a result of oil and 
gas operations in the western gulf, EPA might have denied the permit, 
effectively prohibiting future discharges from those operations. Such a 
permit denial would substantially disrupt continued oil and gas 
production on the OCS adjacent to the states of Louisiana and Texas. 
Without authorization to discharge pollutants, some OCS oil and gas 
operations would cease with corresponding effects on the Nation's oil 
and gas supply. Some operators, however, might develop means to 
transport pollutants they currently discharge offshore to onshore 
disposal facilities. Construction and operation of associated 
transportation facilities, e.g., new pipelines to deliver produced 
water to onshore injection wells, would likely adversely affect the 
environment in coastal Texas and Louisiana. Additional onshore disposal 
capacity and attendant environmental consequences might also result 
from such a permit denial. In EPA's view, however, the FEIS reveals no 
unmitigated environmental impacts that outweigh the benefits of permit 
reissuance and continued offshore oil and gas production at current or 
increased levels. EPA has thus chosen to reissue the general permit 
with effluent limitations and requirements that minimize water quality 
related impacts to the marine environment.
    Second, had the FEIS revealed unacceptable water quality impacts 
from offshore oil and gas operation discharges, EPA could have included 
more stringent effluent limitations in the permit than would otherwise 
have been necessary for compliance with CWA. The discharges to be 
regulated under the reissued permit and their effects are described in 
Section (Operational Wastes Discharged Offshore) of the FEIS. 
Most water quality impacts from OCS discharges have been thoroughly 
examined in past NEPA reviews and it is not thus surprising that the 
latest MMS EIS reveals no clear need for more stringent

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effluent limitations than the reissued permit imposes. The FEIS does, 
however, provide new information on one potential water quality impact, 
i.e., the effect of OCS produced water discharges to the hypoxic zone 
in the Gulf. An EPA mandated study, summarized in Section of 
the FEIS, indicates that produced water discharges may very slightly 
contribute to the hypoxia, but that any such contribution is 
insignificant, particularly in comparison to the volume of nutrients 
contributed by the Mississippi and Atchafalaya Rivers. EPA thus finds 
no hypoxia related reason to include nutrient limitations on produced 
water discharges to the hypoxic zone. Water quality impacts from 
discharges complying with the reissued permit will be minimal.
    One comment on the FEIS was of arguable relevance to EPA's proposed 
permit limitations. In a letter dated May 14, 2007, the Louisiana 
Department of Natural Resources (LDNR) suggested the FEIS should have 
quantified the incremental amount of drilling wastes (i.e., drilling 
fluids, drill cuttings, and produced sand) that must be disposed of 
onshore as a result of proposed MMS leasing actions. According to LDNR, 
the FEIS' conclusion that existing and proposed landfills provide 
adequate capacity for disposal of that waste is unsupported and that 
the FEIS thus fails to ``consider the cost of accommodating the waste 
to coastal communities and the ability of these communities to absorb 
that cost.''
    EPA's permit limitations are, of course, a reason there is a need 
for onshore disposal of some offshore waste streams; the reissued 
permit and its predecessors have prohibited discharges of produced 
sand, oil-based drilling fluids, drilling fluids that cannot be 
discharged consistent with toxicity limitations, and cuttings derived 
from such drilling fluids. To a large extent, offshore operators have 
responded to those limitations by developing and using less toxic 
drilling fluids that may be discharged in compliance with the permits, 
but there continues to be a need for onshore disposal of drilling and 
production wastes generated offshore. Those wastes are generally not 
disposed of in municipal landfills, however, but at commercial 
facilities specializing in oil and gas waste, the largest of which is 
operated by U.S. Liquids in Bourg, Louisiana. Disposal capacity at 
those commercial facilities has historically increased to meet demands 
created by EPA's OCS permits and the Agency is unaware of any reason 
such market driven capacity increases would not continue to occur. If, 
however, sufficient capacity became unavailable, offshore oil and gas 
operators would presumably respond by foregoing operations requiring 
onshore disposal.
    Although most direct costs associated with onshore disposal of 
offshore waste are privately borne (and passed on to consumers), 
indirect costs and the environmental impacts of the disposal may affect 
local communities. Such costs and impacts could be more effectively 
addressed through State regulation and local land use controls than by 
EPA's permit action. As pointed out above, denial of the permit might 
in some cases result in greater onshore costs and impacts and amending 
the draft permit to authorize pollutant discharges prohibited under 
prior permits and EPA effluent limitation guidelines is not a feasible 
alternative, given legal constraints imposed by the Clean Water Act.
    The reissued permit includes several more stringent limitations 
than its predecessors. To avoid unreasonable degradation of the marine 
environment and for consistency with the Region's implementation 
strategy for whole effluent toxicity, the reissued permit contains more 
stringent produced water toxicity limitations based on sublethal 
effects. To ensure compliance with recently adopted technology-based 
guidelines, it likewise imposes new requirements on new offshore 
facilities that intake more than 2 million gallons per day of which at 
least 25% is used for cooling purposes. Information in the FEIS is 
consistent with imposition of those new requirements and they will 
reduce potentially adverse impacts to the marine environment.
    Magnuson-Stevens Fisheries Conservation and Management Act. The 
Magnuson-Stevens Fisheries Conservation and Management Act requires 
that federal agencies proposing to authorize actions that may adversely 
affect essential fish habitat (EFH) consult with NMFS. The entire Gulf 
of Mexico has been designated EFH. EPA adopted the 2002 EFH analysis 
MMS prepared in connection with 2003-2007 Oil and Gas Lease Sales in 
the Central and Western Planning Areas of the Gulf of Mexico and found 
that reissuance of the permit would not adversely affect EFH. NMFS 
concurred with that determination by letter dated January 10, 2007. 
Subsequent analysis in MMS' 2007 FEIS reconfirms those views, 
concluding in section, that ``activities such as pipeline 
trenching and OCS discharge of drilling muds and produced water would 
cause negligible impacts and would not deleteriously affect fish 
resources or EFH.''
    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. 
Specific information on the derivation of those limitations and 
conditions is contained in the fact sheet.
    Pursuant to section 402 of the Clean Water Act (CWA), 33 U.S.C. 
1342, EPA proposed and solicited comments on NPDES general permit 
GMG290000 at 71 FR 76667 (December 21, 2006). Notice of the proposed 
permit modification was also published in the New Orleans Times 
Picayune and Houston Chronicle on December 22, 2006. The comment period 
closed on February 20, 2007.
    EPA received comments from the Offshore Operators Committee (OOC), 
Gulf Restoration Network, MacDermid Offshore Solutions, the Department 
of Energy (DOE), Christy Mile, and Gilbert Cheramie.
    EPA Region 6 has considered all comments received. In response to 
those comments the following changes were included in the final permit. 
Requirements to comply with new cooling water intake structure 
regulations were changed to allow expansion of the industry-wide study 
to include entrainment monitoring. Operators are only required to 
submit cooling water intake structure design information once per 
facility. Notification requirements have been added for operators of 
mobile offshore drilling units required to comply with cooling water 
intake structure conditions. An end-of-well sample is no longer 
required for sediment toxicity testing when using non-aqueous based 
drilling fluids. The toxicity testing frequency for sub-sea fluids has 
been decreased from once per batch to once per year. Toxicity testing 
is no longer required for miscellaneous discharges treated using 
hypochlorite. Minor corrections were made in the produced water whole 
effluent toxicity testing requirements. Other minor changes in wording 
were made to clarify EPA's intent regarding the permit's requirements.

    Dated: May 31, 2007.
Miguel I. Flores,
Director, Water Quality Protection Division, Region 6.
[FR Doc. E7-11035 Filed 6-6-07; 8:45 am]