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[Federal Register Volume 74, Number 63 (Friday, April 3, 2009)]
[Notices]
[Pages 15267-15269]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6840]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8785-2]

Notice of Availability of Proposed Modification of National 
Pollutant Discharge Elimination System (NPDES) General Permit for 
Offshore Oil and Gas Exploration, Development and Production Operations 
Off Southern California

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Availability of Proposed NPDES General Permit 
Modification.

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SUMMARY: EPA Region 9 is proposing certain modifications of its general 
NPDES permit (permit No. CAG280000) for discharges from offshore oil 
and gas exploration, development and production facilities located in 
Federal waters off the coast of Southern California. The permit, which 
was issued on September 22, 2004 (69 FR 56761), required a one-year 
monitoring study for discharges of produced water, cooling water and 
fire control system test water to evaluate whether these discharges 
would have reasonable potential to cause or contribute to exceedances 
of marine water quality criteria. For produced water, the permit 
required monitoring for 26 pollutants which may be present in the 
discharges. For cooling water and fire control system test water, 
monitoring was required for total residual chlorine which may be used 
for anti-fouling.
    The monitoring study has now been completed and Region 9 is 
proposing to modify the permit to include additional effluent 
limitations and monitoring requirements for those discharges for which 
the monitoring study showed a reasonable potential to cause or 
contribute to exceedances of marine water quality criteria.
    For produced water discharges, Region 9 is also proposing to modify 
the water quality criterion for undissociated sulfide in the permit 
based on the results of a new study submitted by the permittees 
concerning the toxicity of this material to marine organisms. The 
proposed effluent limitations for undissociated sulfide in the modified 
general permit would be based on the modified water quality criterion.

DATES: Comments on the proposed permit modifications must be received 
or postmarked no later than May 4, 2009.

ADDRESSES: Public comments on the proposed permit modifications may be 
submitted by U.S. Mail to: Environmental Protection Agency, Region 9, 
Attn: Lisa Honor, NPDES Permits Office (WTR-5), 75 Hawthorne Street, 
San Francisco, California 94105-3901, or by e-mail to: 
[email protected].

FOR FURTHER INFORMATION CONTACT: Eugene Bromley, EPA Region 9, NPDES 
Permits Office (WTR-5), 75 Hawthorne Street, San Francisco, California 
94105-3901, or telephone (415) 972-3510. A copy of the proposed permit 
modifications and fact sheet will be provided upon request and is also 
available on Region 9's Web site at http://www.epa.gov/region09/water/. 
Additional information concerning the general permit overall is 
available in the fact sheet accompanying the final issuance of the 
general permit on September 22, 2004. The 2004 general permit and fact 
sheet are available on Region 9's Web site at http://www.epa.gov/region09/water/.
    Administrative Record: The proposed permit modifications and other 
related documents in the administrative record are on file and may be 
inspected any time between 8:30 a.m. and 4 p.m., Monday through Friday, 
excluding legal holidays, at the following address: U.S. EPA Region 9, 
NPDES Permits Office (WTR-5), 75 Hawthorne Street, San Francisco, CA 
94105-3901.

SUPPLEMENTARY INFORMATION:
    A. Reasonable Potential Monitoring Study. Among other factors, the 
Ocean Discharge Criteria regulations (40 CFR part 125, subpart M) 
require a consideration of marine water quality criteria for discharges 
to the ocean permitted under the NPDES permit program. In considering 
these criteria, particularly in determining permit conditions that 
would be needed to support a determination the resulting discharges 
will not cause unreasonable degradation of the marine environment, the 
permit included a study requirement using the statistical procedures 
EPA uses in determining the need for water quality-based effluent 
limits for point source discharges to waters of the United States, 
including the territorial seas. The study, captioned the ``reasonable 
potential monitoring study,'' was required in order to determine 
whether the ocean discharges regulated under the permit would cause, or 
have the reasonable potential to cause, or contribute to non-attainment 
of marine water quality criteria at the boundary of the mixing zone, 
which is the location identified in the Ocean Discharge Criteria 
regulations at 40 CFR 125.123(d)(1).
    General permit No. CAG28000 included the study requirement because 
at the time of the issuance insufficient data were available to 
evaluate the reasonable potential for discharges of produced water, 
cooling water and fire control system test water to cause or contribute 
to exceedances of the marine water quality criteria for pollutants 
Region 9 had identified as potentially present in the discharges. The 
permit's study requirements were derived from the statistical 
procedures explained in EPA's Technical Support Document for Water 
Quality-Based Toxics Control (TSD) (EPA/505/2-90-001). EPA explained in 
the permit if a discharge demonstrated the reasonable potential to 
cause non-attainment of a marine water quality criterion at the 
boundary of a mixing zone, the permit could be reopened and modified to 
include additional effluent limitations and monitoring requirements to 
ensure compliance with the water quality criteria. Today Region 9 is 
proposing to reopen and modify the general permit to include such 
additional limitations and requirements, thus enabling its 
determination the authorized discharges will not cause unreasonable 
degradation of the marine environment.
    For produced water, the permit required monitoring monthly during 
the first year of the permit for 26 pollutants of concern Region 9 had 
identified as potentially present in the discharges. For cooling water 
and fire control system test water, monitoring was also required 
monthly during the first year for total residual chlorine which is used 
at some platforms as an anti-fouling agent. Monitoring results were due 
by

[[Page 15268]]

March 1, 2006 and were submitted for all platforms in a timely manner. 
The permit also required the submittal of an analysis by March 1, 2006, 
using statistical procedures in the TSD, of the reasonable potential of 
the discharges to cause or contribute to non-attainment of the 
previously specified marine water quality criteria. These analyses also 
were submitted for all platforms in a timely manner.
    The general permit authorizes discharges from 22 offshore 
platforms. However, only 15 of the platforms discharge produced water. 
Thirteen of the platforms showed reasonable potential to exceed 
applicable marine water quality criteria for one or more of the 26 
pollutants monitored in produced water; the applicable water quality 
criteria used were the more stringent of CWA section 304(a) criteria or 
the California Ocean Plan objectives as required by the 2004 final 
general permit. One of the platforms (Platform Irene) rarely discharges 
produced water and the operator had not collected the minimum number of 
samples (which is ten samples) recommended by the TSD to do a 
reasonable potential analysis. Moreover, the discharges measured for 
this platform were from small scale pilot tests of potential produced 
water treatment systems which may not be representative of future 
discharges resulting from the treatment system ultimately installed. 
Thus, Region 9 is deferring action on this platform until the general 
permit is reissued in 2009. Until then, for the majority of the 
pollutants addressed by the reasonable potential study, Platform Irene 
would continue to be subject to effluent limits in its previous 
individual permit, and the platform would continue to conduct 
monitoring for all 26 of the pollutants as required by Part II.B.1.b.2 
of the general permit.
    Seven of the 22 platforms use chlorine in cooling water or fire 
control system test water. Six of the seven platforms showed a 
reasonable potential to cause non-attainment of the marine water 
quality criteria for chlorine.
    Proposed effluent limitations and monitoring requirements to 
control the pollutants in the above discharges and ensure compliance 
with marine water quality criteria are discussed in section C below.
    B. Modified Water Quality Criterion for Undissociated Sulfide. The 
general permit provides a permittee may request a modified criterion 
for a pollutant of concern in produced water discharges based on 
additional studies of the toxicity of the pollutant. On April 20, 2006, 
several permittees operating under the general permit requested a 
modification of the criterion in the permit for undissociated sulfide 
(2 [mu]g/l). The permittees requested a modified criterion of 12 [mu]g/
l based on a new study of the toxicity of this material to marine 
organisms. Region 9 reviewed the new study and believes a revised 
criterion of 5.79 [mu]g/l is justified by the data (rather than 12 
[mu]g/l). Region 9 is proposing to modify the water quality criterion 
in the permit for undissociated sulfide to 5.79 [mu]g/l. The proposed 
effluent limitations for undissociated sulfide discussed below are 
based on the revised criterion of 5.79 [mu]g/l for this material.
    C. Proposed Effluent Limitations and Monitoring Requirements. Using 
the procedures in the TSD, Region 9 calculated effluent limitations for 
the pollutants in discharges of produced water, cooling water and fire 
control system test water for which reasonable potential was determined 
to exist based on the monitoring study. For produced water, these 
effluent limitations are found in a new Appendix C which is proposed to 
be added to the general permit. For cooling water and fire control 
system test water, the effluent limitations are found in a new Appendix 
D which would be added to the permit.
    Monitoring once per quarter would also be required for the 
pollutants with reasonable potential in each of the discharges. The 
monitoring results would be reported in the quarterly discharge 
monitoring reports. For pollutants with no reasonable potential in 
produced water, monitoring once during the remainder of the permit term 
would be required as set forth in Part II.B.1.e.3 of the general 
permit.
    D. Requirements Related to the Coastal Zone Management Act. The 
Coastal Zone Management Act (CZMA) requires Federal activities and 
projects affecting the coastal zone of a state, including Federally 
permitted activities, must be consistent with an approved state Coastal 
Management Plan (CMP) (CZMA Sections 307(c)(1) through (3)). California 
has a CMP which was approved in 1978; the CZMA authority is the 
California Coastal Commission (CCC).
    In accordance with revised regulations implementing the CZMA (71 FR 
788, January 5, 2006), the issuance of a general NPDES permit by EPA is 
considered a ``Federal agency activity'' covered by CZMA Section 
307(c)(1), and CZMA regulations at 15 CFR Subpart C. The regulations at 
15 CFR 930.31(e) further clarify the modification of a general permit 
which could affect any coastal use or resource is also subject to a 
consistency review under Subpart C.
    Region 9 believes the proposed permit modification could affect 
coastal uses or resources of the State of California. Region 9 also 
believes the proposed permit modification would be consistent with the 
CMP. Region 9 recently submitted a consistency certification to the CCC 
for the proposed permit modification.
    In accordance with 15 CFR 930.31(d), if the CCC concurs with the 
permit modification, the modification could become effective for all 
platforms without additional review of individual platforms by the CCC. 
However, if the CCC objects to the permit modification, the 
modification would not become effective for a given platform until an 
individual consistency certification had been submitted by the 
permittee and concurred upon by the CCC, or the Secretary of Commerce 
had overridden a CCC objection. The effective date for the proposed 
permit modification makes allowance for these regulatory requirements.
    E. Permit Modification Appeal Procedures. Within 120 days following 
notice of EPA's final decision for the general permit modification 
under 40 CFR 124.15, any interested person may appeal the permit 
decision in the Federal Court of Appeals in accordance with Section 
509(b)(1) of the Clean Water Act (CWA). 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 (and authorized at 40 CFR 122.28), and then petition 
the Environmental Appeals Board to review any condition of the 
individual permit (40 CFR 124.19 as modified on May 15, 2000, 65 FR 
30886).
    F. Compliance with the Regulatory Flexibility Act for General 
Permits. The Regulatory Flexibility Act (RFA) generally requires an 
agency to prepare a regulatory flexibility analysis of any rule subject 
to notice and comment rulemaking requirements under the Administrative 
Procedure Act 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.
    The legal question of whether a general permit (including a general 
permit modification), as opposed to an individual permit qualifies as a 
``rule'' or as an ``adjudication'' under the Administrative Procedure 
Act (APA) has been the subject of periodic

[[Page 15269]]

litigation. In a recent case, the court held that the CWA Section 404 
Nationwide general permit before the court did qualify as a ``rule'' 
and therefore that the issuance of the general permit needed to comply 
with the applicable legal requirements for the issuance of a ``rule.'' 
National Ass'n of Home Builders v. US Army Corps of Engineers, 417 F.3d 
1272, 1284-85 (DC Cir.2005) (Army Corps general permits under Section 
404 of the Clean Water Act are rules under the APA and the Regulatory 
Flexibility Act; ``Each NWP [nationwide permit] easily fits within the 
APA's definition of a `rule.' * * * As such, each NWP constitutes a 
rule * * *'').
    As EPA stated in 1998, ``the Agency recognizes that the question of 
the applicability of the APA, and thus the RFA, to the issuance of a 
general permit is a difficult one, given the fact that a large number 
of dischargers may choose to use the general permit.'' 63 FR 36489, 
36497 (July 6, 1998). At that time, EPA ``reviewed its previous NPDES 
general permitting actions and related statements in the Federal 
Register or elsewhere,'' and stated that ``[t]his review suggests that 
the Agency has generally treated NPDES general permits effectively as 
rules, though at times it has given contrary indications as to whether 
these actions are rules or permits.'' Id. at 36496. Based on EPA's 
further legal analysis of the issue, the Agency ``concluded, as set 
forth in the proposal, that NPDES general permits are permits [i.e., 
adjudications] under the APA and thus not subject to APA rulemaking 
requirements or the RFA.'' Id. Accordingly, the Agency stated that 
``the APA's rulemaking requirements are inapplicable to issuance of 
such permits,'' and thus ``NPDES permitting is not subject to the 
requirement to publish a general notice of proposed rulemaking under 
the APA or any other law * * * [and] it is not subject to the RFA.'' 
Id. at 36497.
    However, the Agency went on to explain that, even though EPA had 
concluded that it was not legally required to do so, the Agency would 
voluntarily perform the RFA's small-entity impact analysis. Id. EPA 
explained the strong public interest in the Agency following the RFA's 
requirements on a voluntary basis: ``[The notice and comment] process 
also provides an opportunity for EPA to consider the potential impact 
of general permit terms on small entities and how to craft the permit 
to avoid any undue burden on small entities.'' Id. Accordingly, with 
respect to the NPDES permit that EPA was addressing in that Federal 
Register notice, EPA stated that ``the Agency has considered and 
addressed the potential impact of the general permit on small entities 
in a manner that would meet the requirements of the RFA if it 
applied.'' Id.
    Subsequent to EPA's conclusion in 1998 that general permits are 
adjudications, rather than rules, as noted above, the DC Circuit 
recently held that Nationwide general permits under section 404 are 
``rules'' rather than ``adjudications.'' Thus, this legal question 
remains ``a difficult one'' (supra). However, EPA continues to believe 
that there is a strong public policy interest in EPA applying the RFA's 
framework and requirements to the Agency's evaluation and consideration 
of the nature and extent of any economic impacts that a CWA general 
permit could have on small entities (e.g., small businesses). In this 
regard, EPA believes that the Agency's evaluation of the potential 
economic impact that a general permit would have on small entities, 
consistent with the RFA framework discussed below, is relevant to, and 
an essential component of, the Agency's assessment of whether a CWA 
general permit would place requirements on dischargers that are 
appropriate and reasonable. Furthermore, EPA believes that the RFA's 
framework and requirements provide the Agency with the best approach 
for the Agency's evaluation of the economic impact of general permits 
on small entities. While using the RFA framework to inform its 
assessment of whether permit requirements are appropriate and 
reasonable, EPA will also continue to ensure that all permits satisfy 
the requirements of the Clean Water Act.
    Accordingly, EPA has committed that the Agency will operate in 
accordance with the RFA's framework and requirements during the 
Agency's issuance of CWA general permits (in other words, the Agency 
commits that it will apply the RFA in its issuance of general permits 
as if those permits do qualify as ``rules'' that are subject to the 
RFA). In satisfaction of this commitment, during the course of this 
general offshore oil and gas exploration, development and production 
operations permit proceeding, the Agency conducted the analysis and 
made the appropriate determinations that are called for by the RFA. In 
addition, and in satisfaction of the Agency's commitment, EPA will 
apply the RFA's framework and requirements in any future issuance of 
other NPDES general permits. EPA anticipates that for most general 
permits the Agency will be able to conclude that there is not a 
significant economic impact on a substantial number of small entities. 
In such cases, the requirements of the RFA framework are fulfilled by 
including a statement to this effect in the permit fact sheet, along 
with a statement providing the factual basis for the conclusion. A 
quantitative analysis of impacts would only be required for permits 
that may affect a substantial number of small entities, consistent with 
EPA guidance regarding RFA certification.\1\
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    \1\ EPA's current guidance, entitled Final Guidance for EPA 
Rulewriters: Regulatory Flexibility Act as Amended by the Small 
Business Regulatory Enforcement and Fairness Act, was issued in 
November 2006 and is available on EPA's Web site: http://www.epa.gov/sbrefa/documents/rfafinalguidance06.pdf. After 
considering the Guidance and the purpose of CWA general permits, EPA 
concludes that general permits affecting less than 100 small 
entities do not have a significant economic impact on a substantial 
number of small entities.
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    G. Analysis of Economic Impacts of the General Permit for Offshore 
Oil and Gas Exploration, Development and Production Operations off 
Southern California. EPA determined, in consideration of the discussion 
in Section F above, the issuance of the general permit for offshore oil 
and gas exploration, development and production operations off Southern 
California would not have a significant economic impact on a 
substantial number of small entities. There are only 22 offshore 
platforms which could be affected by the proposed general permit 
modification. EPA concludes since this general permit affects less than 
100 small entities, EPA believes it does not have a significant 
economic impact on a substantial number of small entities. Accordingly, 
EPA concludes a quantitative analysis of impacts is not required for 
this permit.

    Authority:  Clean Water Act, 33 U.S.C. 1251 et seq.

    Dated: March 12, 2009.
Alexis Strauss,
Director, Water Division, Region 9.
[FR Doc. E9-6840 Filed 4-2-09; 8:45 am]
BILLING CODE 6560-50-P
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