Proposed Reissuance of the NPDES General Permit for the Western Portion of the Outer Continental Shelf of the Gulf of Mexico (GMG290000)

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of Proposed NPDES General Permit Reissuance.

SUMMARY:

The Regional Administrator of Region 6 today proposes to reissue the National Pollutant Discharge Elimination System (NPDES) general permit for the Western Portion of the Outer Continental Shelf of the Gulf of Mexico (No. GMG290000) for discharges from existing and new dischargers and New Sources in the Offshore Subcategory of the Oil and Gas Extraction Point Source Category as authorized by section 402 of the Clean Water Act. The permit, previously reissued on April 19, 1999, published in the Federal Register at 64 FR 19156, 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 off Louisiana and Texas. Discharges of produced water to Federal waters from facilities located in the territorial seas are also authorized when all conditions of the permit are met. The following changes to the expiring permit are proposed to be made as a part of the permit reissuance: The time frame is specified for collection of a produced water sample after a sheen is observed. The discharge prohibitions at National Marine Sanctuaries are clarified in an attempt to better reflect National Oceanic and Atmospheric Administration regulations. The variability factor for use in determining compliance with the permit's limits for sediment toxicity and biodegradation is removed. The requirement to submit fourteen day advanced notification of intent to be covered by the permit is removed. The final discharge monitoring report will be required to be submitted along with the a notice of termination. New test methods are allowed for monitoring cadmium and mercury in stock barite. Several minor miscellaneous discharges are added to better represent deep water technologies. Other changes to the permit's miscellaneous discharge requirements are proposed to clarify that toxicity testing is not required for non-toxic dyes. Other minor changes in wording are also proposed to resolve confusion of EPA's intent regarding the permit's requirements. EPA is proposing that the permit be reissued for three years. During the three year permit term, EPA and Minerals Management Service (MMS) propose to conduct a study to collect additional information to support the evaluation of potential produced water discharge impacts in the hypoxic zone in the northern Gulf of Mexico. Our intent is to ensure that we have the information necessary to determine whether or not anticipated future increases in produced water discharges may result in unreasonable degradation of the marine environment. EPA and Minerals Management Service (MMS) will work in partnership to determine the appropriate next steps based on this study.

DATES:

Comments must be received by July 30, 2004.

ADDRESSES:

Comments should be sent to: Regional Administrator, Region 6, U.S. Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202-2733

Comments may also be submitted via EMAIL to the following address: smith.diane@epa.gov.

FOR FURTHER INFORMATION CONTACT:

Ms. Diane Smith, Region 6, U.S. Environmental Protection Agency (6WQ-CA), 1445 Ross Avenue, Dallas, Texas 75202-2733. Telephone: (214) 665-2145.

A copy of the proposed permit and the fact sheet more fully explaining the proposal 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 and fact sheet, and this Federal Register Notice may be obtained on the Internet at: http://www.epa.gov/earth1r6/6wq/6wq.htm.

Administrative Compliance Order (ACO) for NPDES OCS Permit Transition for Dischargers in the Western Portion of the Gulf of Mexico

Persons who own or operate offshore platforms in Federal waters of the Western Portion of the Gulf of Mexico (defined as seaward of the outer boundary of the territorial seas off Louisiana and Texas) and have unauthorized discharges of pollutants to waters of the U.S. may not obtain new permit coverage under the 1998 National Pollutant Discharge Elimination System (NPDES) Outer Continental Shelf (OCS) general permit (NPDES No. GMG290000) since it expired on November 3, 2003. However, these persons may request coverage under a Clean Water Act ACO that orders them to comply with the 1998 general permit until issuance of the replacement permit. The ACO, its fact sheet (which includes other options), and the application form for coverage under the ACO are available on the Internet at http://www.epa.gov/region6/6en/w/offshore/1998-permit-ao-extension-jun-2004.htm.

If you do not have access the Internet, you may contact EPA Region 6's Enforcement Offshore Coordinator, Mr. Taylor Sharpe, by telephone at (214) 665-7112, or by mail at: EPA Region 6, Attn: Mr. Taylor Sharpe (6EN-WT), P.O. Box 50625, Dallas, TX 75250.

SUPPLEMENTARY INFORMATION:

Regulated entities. EPA intends to use the proposed 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.

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.

Other Legal Requirements

Oil Spill Requirements. Section 311 of the CWA, (the Act), prohibits the discharge of oil and hazardous materials in harmful quantities. Discharges that are in compliance with 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.

Ocean Discharge Criteria Evaluation. For discharges into waters of the territorial sea, contiguous zone, or oceans CWA section 403 requires EPA to consider guidelines for determining potential degradation of the marine environment in issuance of 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 Western Gulf of Mexico Outer Continental Shelf general permit (GMG290000) will not cause unreasonable degradation of the marine environment. Since this proposed permit contains limitations which will protect water quality and in general reduce the discharge of toxic pollutants to the marine environment, the Region finds that discharges proposed to be authorized by the reissued general permit will not cause unreasonable degradation of the marine environment. EPA and Minerals Management Service (MMS) propose to conduct a study to collect additional information to support the evaluation of the potential BOD contribution from produced water discharges in the hypoxic zone in the northern Gulf of Mexico. Our intent is to ensure that we have the information necessary to determine whether or not anticipated future increases in produced water discharges may result in unreasonable degradation of the marine environment.

Coastal Zone Management Act. EPA has determined that the activities which are proposed to be authorized by this permit reissuance are consistent with the local and state Coastal Zone Management Plans. The proposed permit and consistency determination will be submitted to the State of Louisiana and the State of Texas for interagency review at the time of public notice.

Marine Protection, Research, and Sanctuaries Act. The Marine Protection, Research and Sanctuaries Act (MPRSA) of 1972 regulates the dumping of all types of materials into ocean waters and establishes a permit program for ocean dumping. 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. Changes to the permit proposed today will authorize several historic 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 worked extensively with NOAA to ensure that the changes are consistent with regulations governing the National Marine Sanctuary. NOAA's concurrence with the changes will be obtained prior to issuance of the final permit.

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. The Office of Management and Budget (OMB) has exempted this action from the review requirements of Executive Order 12291 pursuant to Section 8(b) of that order. Guidance on Executive Order 12866 contain the same exemptions on OMB review as existed under Executive Order 12291. In fact, however, EPA prepared a regulatory impact analysis in connection with its promulgation of guidelines on which a number of the permit's provisions are based and submitted it to OMB for review. See 58 FR 12494.

Paperwork Reduction Act. The information collection required by this permit has been approved by the Office 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 which are required under 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 issuance 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 proposed permit reissuance would 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.

The Agency also believes that the permit 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, as proposed, also would 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. The Agency is preparing an Environmental Assessment that will be made available to the public before the Agency takes final action.