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 (GMG280000)

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. GMG28A000) 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).

DATES:

Comments on this proposed action must be received by March 12, 2004.

ADDRESSES:

Persons wishing to comment upon or object to any aspects of this permit reissuance are invited to submit same in writing within sixty (60) days of this notice to the Water Management Division, U.S. EPA—Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, GA 30303-8960, Attention: Ms. Karrie-Jo Robinson-Shell. Public hearings will be scheduled and held in Ocean Springs, MS, Gulf Shores, AL and Pensacola, FL, in March 2004; see section VI. Public notices announcing these hearings will be published in local newspapers at least 30 days prior to the date of the first hearing. Persons wishing to receive advance notification of these hearings directly are asked to submit that request to Ms. Ann Brown at the address above or via e-mail at: brown.anng@epa.gov.

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 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.

SUPPLEMENTARY INFORMATION:

The existing permit, issued by EPA Region 4 and published at 63 FR 55718 on October 16, 1998, and revised on March 14, 2001 at 63 FR 14988, 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 in the Eastern Planning Area 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 in the Central Planning Area (CPA).

In order to obtain coverage under the reissued general permit, all permittees covered under the previous NPDES general permit must have submitted a timely and complete notice of intent (NOI) no later than October 31, 2003 (the expiration date of the previous NPDES general permit). All facility owners of newly acquired leases, on which a discharge will take place before the effective date of the reissued general permit (operating facilities) in the water depths seaward of 200 meters, must file a written NOI to be covered by the new general permit for existing and new sources no later than 14 days prior to discharge. Non-operational leases, i.e., those on which 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 under the reissued general permit once the Exploration Plan Document or the Development Operational Coordination Document are submitted to EPA. Otherwise, their coverage under the previous general permit will terminate on the effective date of the reissued general permit. No NOIs will be accepted on non-operational or newly acquired leases until such time as an exploration plan or development production plan has been prepared for submission to Minerals Management Service (MMS). The NOI must contain the information set forth in 40 CFR 122.28(b)(2)(ii) and part A.4 of the NPDES permit.

In accordance with Oil and Gas Extraction Point Source Category, Offshore Subcategory Effluent 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 is making a draft Supplemental Environmental Impact Statement (SEIS) available for review at least 30 days prior to the end of the public comment period for this general permit. (A separate Federal Register Notice announcing this document is forthcoming.) The draft SEIS addresses 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 2.4.2 of the final Environmental Impact Statement (EIS) (EPA 904/9-98-003), which was prepared for the previous NPDES general permit, the Regional Administrator has determined that the area shoreward of the 200 meter depth includes extensive live bottom and other valuable marine habitats and includes areas of biological concern, which should be subject to more stringent review based on the ocean discharge criteria under section 403 of the Clean Water Act (CWA or the Act) and findings of the draft SEIS. Accordingly, individual permits will be issued for operating facilities on lease blocks traversed by and shoreward of the 200 meter water depth.

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).

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 and the draft SEIS received within the 60-day comment period will be considered in the formulation of final determination regarding the permit reissuance. In addition, public hearings will be held in coastal Mississippi, Alabama and Florida communities where the public may have an interest in the permit issuance action.

After consideration of all written comments, comments taken at the public hearings and the requirements and policies in the CWA and appropriate regulations, the EPA Regional Administrator will make a determination regarding the 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. 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 upon receipt of notification of coverage with an assignment of an NPDES general permit number from the EPA Region 4, Director of the Water Management Division. EPA will act on the NOI within a reasonable period of time.

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 Operational Coordination Document has been prepared and submitted to MMS.

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 to review and submit comments. A copy has also been provided to EPA Region 6 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 draft copies of the draft NPDES general permit, Fact Sheet, preliminary Ocean Discharge Criteria Evaluation, a CWA Section 403(c) determination, and draft SEIS. Other relevant information is available upon request from each State for their review. Comments regarding State Consistency are invited in writing within 60 days of this notice to the Water Management Division, U.S. Environmental Protection Agency, Region 4, 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 will begin on the date of publication of this notice and end 60 days later. Three (3) public hearings have been scheduled on this proposed action. The first hearing is scheduled for Tuesday, March 16, 2004, at 6 p.m in Ocean Springs, Mississippi at the Gulf Coast Research Laboratory, 703 East Beach Drive. The second hearing is scheduled for Wednesday, March 17, 2004, at 6 p.m. in Gulf Shores, Alabama at the Marriott Courtyard Gulf Shores Craft Farms, 3750 Gulf Shores Parkway. The third hearing is scheduled for Thursday, March 18, 2004, at 6 p.m. in Pensacola, Florida at the Booker T. Washington High School, 6000 College Parkway. Comments from persons attending any of the hearings will be received no later than April 2, 2004 (14 days after the last public hearing). Any person wishing to participate in a public hearing who needs special accommodations or any person interested in obtaining directions to these hearing should contact Ms. Ann Brown, at (404) 562-9288 before March 1, 2004.

VII. Administrative Record

The draft NPDES general permit, fact sheet, preliminary Section 403(c) determination, draft SEIS 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, fact sheet, preliminary 403(c) determination, draft SEIS and other relevant documents may be obtained by writing the U.S. EPA, Region 4, 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. In addition, copies of the draft NPDES general permit and fact sheet may be downloaded at http://www.epa.gov/region4/water/permits.

VIII. Executive Order 12866

Under Executive Order 12866 (58 FR 51735 (October 4, 1993)) the Agency must determine whether the regulatory action in “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 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.

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.”

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 purposes.

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 (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.