[Federal Register Volume 74, Number 249 (Wednesday, December 30, 2009)]
[Pages 69088-69090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30852]

[[Page 69088]]




Notice of Draft National Pollutant Discharge Elimination System 
(NPDES) General Permit for the Eastern Portion of Outer Continental 
Shelf (OCS) of the Gulf of Mexico (GEG460000); Availability of 
Preliminary Finding of No Significant Impact (FNSI) and Environmental 

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Proposed Reissuance of NPDES General Permit, Notice 
to States of Mississippi, Alabama and Florida for Consistency Review 
with approved Coastal Management Programs.


SUMMARY: The Regional Administrator of EPA Region 4 (the ``Region'') is 
today proposing to reissue the National Pollutant Discharge Elimination 
System (NPDES) general permit for the Outer Continental Shelf (OCS) of 
the Gulf of Mexico (General Permit No. GMG460000) for discharges in the 
Offshore Subcategory of the Oil and Gas Extraction Point Source 
Category (40 Code of Federal Regulations (CFR) Part 435, subpart A). 
The existing permit, issued by EPA Region 4 and published at 69 FR 
76740 on December 22, 2004, 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 
of the outer boundary of the territorial seas. Today's draft NPDES 
permit covers existing and new source facilities with operations 
located on Federal leases occurring in water depths seaward of 200 
meters, occurring offshore the coasts of Alabama and Florida. The 
western boundary of the coverage area is demarcated by Mobile and 
Visoca Knoll lease blocks located seaward of the outer boundary of the 
territorial seas from the coasts of Mississippi and Alabama. Individual 
permits will be issued for operating facilities on lease blocks 
traversed by and shoreward of the 200 meter water depth.

DATES: Comments on this proposed action must be received by January 29, 

ADDRESSES: Comments should be sent the Water Protection Division, U.S. 
EPA- Region 4, Municipal and Industrial NPDES Section, Sam Nunn Atlanta 
Federal Center, 61 Forsyth Street, SW., Atlanta, GA 30303-8960, 
Attention: Ms. Karrie-Jo Robinson-Shell.

FOR FURTHER INFORMATION CONTACT: Ms. Karrie-Jo Robinson-Shell, Offshore 
Oil and Gas Contact, at telephone (404) 562-9308 or at the following 
address: Water Protection Division, Municipal and Industrial NPDES 
Section, U.S. EPA, Region 4, Sam Nunn Atlanta Federal Center, 61 
Forsyth Street, SW., Atlanta, GA 30303-8960.

SUPPLEMENTARY INFORMATION: As proposed, this draft NPDES general permit 
includes, best conventional pollutant control technology (BCT), and 
best available technology economically achievable (BAT) limitations for 
existing sources and new source performance standards (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). The draft permit 
also includes the following changes to the expiring permit: (1) 
Requirements were included to permittees to comply with cooling water 
intake structure regulations per 40 CFR Part 125-subpart N 
(Requirements Applicable to Cooling Water Intake Structures for New 
Offshore Oil and Gas Extraction Facilities Under Section 316(b) of the 
Clean Water Act); (2) Best Management Practices (BMP) Plan requirements 
were changed to incorporate measures to address discharges of debris 
from blasting and painting activities; (3) Modified ISO Test Method 
11734, Protocol For The Determination of Degradation of Non-Aqueous 
Base Fluids in a Marine Closed Bottle Biodegradation Test System, was 
included in order to clarify testing procedures; (4) rounding 
procedures were included to clarify reporting requirements for ratio 
values used to report compliance with the sediment toxicity and 
biodegradation tests; and (5) the requirement to perform a Seabed 
Survey was deleted since the industry completed this study during the 
term of the existing permit. Other minor changes in wording were made 
to clarify EPA's intent regarding the permit's requirements.
    Under 40 CFR Part 6, EPA Region 4 is also making available a 
Preliminary Finding of No Significant Impact (FNSI) and an 
Environmental Assessment (EA) for review during the 30 day public 
comment period for this general permit. The EA addresses potential 
impacts from proposed changes to the general permit and it considers 
recent technical studies.

I. Procedures for Reaching a Final Permit Decision

    Pursuant to 40 CFR 124.13, any person who believes any condition of 
the permit is inappropriate must raise all reasonably ascertainable 
issues and submit all reasonably available arguments in full, 
supporting their position, by the close of the comment period. All 
comments on the draft NPDES general permit, the preliminary FNSI and 
the EA received within the 30-day comment period will be considered in 
the formulation of final determination regarding the National 
Environmental Pollution Act (NEPA) review and the permit reissuance. 
After consideration of all written comments and the requirements and 
policies in the CWA and appropriate regulations, the EPA Regional 
Administrator will make a determination regarding the EA/FNSI and 
permit reissuance. If the determination results in a permit that is 
substantially unchanged from the draft permit announced by this notice, 
the Regional Administrator will so notify all persons submitting 
written comments. If the determination results in a permit that is 
substantially changed, the Regional Administrator will issue a public 
notice indicating the revised determination.
    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. Paul Schwartz, Associate Regional Counsel Office of 
Environmental Accountability, at (404) 562-9576.

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 upon receipt of 
notification of coverage with an assignment of an NPDES general permit 
number from the EPA-Region 4, Director of the Water Protection 
Division. EPA will act on the Notice of Intent (NOI) within a 
reasonable period of time.

[[Page 69089]]

III. Exclusion of Non-Operational Leases

    This permit does not apply to non-operational leases, i.e., those 
on which 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 leases, and the general permit will not cover such leases. 
Non-operational leases 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 leases until and unless the lessee has obtained coverage 
under the new general permit or an individual permit. EPA will not 
accept an NOI or individual permit application for non-operational or 
new acquired leases until such time as an Exploration Plan Document or 
the Development Operations Coordination Document has been prepared and 
submitted to Minerals Management Service.

IV. State Water Quality Certification

    Because State waters are not included in the area covered by the 
OCS general permit, its effluent limitations and monitoring 
requirements are not subject to State water quality certification under 
CWA Section 401. However, the States of Alabama, Florida and 
Mississippi have been provided a copy of this draft general permit, 
Preliminary FNSI and EA to review and submit comments. Copies of these 
documents have also been provided to EPA Headquarters for their review.

V. State Consistency Determination

    This Notice will also serve as Region 4's requirement under the 
Coastal Zone Management Act (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 is 
being sent to each affected State, along with a letter of this FR 
notice, which provides the EPA Web site where electronic copies can be 
obtained of the draft NPDES general permit, permit fact sheet, 
preliminary Ocean Discharge Criteria Evaluation, a Preliminary FNSI, 
and EA. Other relevant information for their review is available upon 
request from each State. Comments regarding State Consistency are 
invited in writing within 30 days of this notice to the Water 
Protection Division, U.S. EPA-Region 4, Municipal and Industrial NPDES 
Permits Section, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, 
SW., Atlanta, GA 30303-8960, Attention: Ms. Karrie-Jo Robinson-Shell.

VI. Public Comment Period and Public Hearings

    The public comment period for the draft NPDES permit, preliminary 
FNSI and EA will begin on the date of publication of this notice and 
end 30 calendar days later.

VII. Administrative Record

    The draft NPDES general permit, permit fact sheet, Preliminary 
FNSI, EA and other relevant documents are on file and may be inspected 
any time between 8:15 a.m. and 4:30 p.m., Monday through Friday at the 
address shown below. Copies of the draft NPDES general permit, permit 
fact sheet, Preliminary FNSI, EA and other relevant documents may be 
obtained by writing the U.S. EPA-Region 4, Water Protection Division, 
Municipal and Industrial NPDES Section, Sam Nunn Atlanta Federal 
Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960, Attention: 
Ms. Karrie-Jo Robinson-Shell, or by calling (404) 562-9308. A hard copy 
of the Preliminary FNSI and EA may be obtained by calling Traci Buskey 
at (404) 562-8284. Alternatively, copies of the draft NPDES general 
permit, permit fact sheet, Preliminary FNSI and EA may be downloaded at 

VIII. 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 
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.

IX. 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 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 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 

X. 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'' to refer to regulations. (See, 
e.g., UMRA Section 401, ``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 RFA. That section of the RFA defines ``rule'' as 
``any rule for which the agency publishes a notice of proposed rule 
making pursuant to Section 553(b) of the APA, or any other law.''

[[Page 69090]]

    As discussed in the RFA section of this notice, NPDES general 
permits are not ``rules'' by definition 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. 
Therefore, NPDES general permits are not ``rules'' for RFA or UMRA 

XI. 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 (GMG460000) 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.

    Dated: December 11, 2009.
James D. Giattina,
Director, Water Protection Division.
[FR Doc. E9-30852 Filed 12-29-09; 8:45 am]