Federal Register / Vol. 74, No. 63 / Friday, April 3, 2009 / Notices 15267 

stop, and is close to Ronald Reagan 

Washington National Airport (DCA). 

The National Bed Bug Summit 

meeting is open to the public and 

seating is available on a first come basis. 

Persons interested in attending do not 

need to register in advance of the 

meeting and there is no registration fee. 

Lodging and transportation are not 

being provided. No RSVP is required. 

An information package that contains a 

meeting overview, directions, close-by 

hotels, transportation options, etc., is 

available at http://www.epa.gov/ 

pesticides. 

List of Subjects 

Environmental protection, Chemicals, 

Pesticides and pests, Public health. 

Dated: March 30, 2009. 

Daniel J. Rosenblatt, 

Acting Director, Registration Division, Office 

of Pesticide Programs. 

[FR Doc. E9–7661 Filed 4–1–09; 4:15 pm] 

BILLING CODE 6560–50–S 

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. 

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: 

honor.lisa@epa.gov. 

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 


sroberts on PROD1PC70 with NOTICES
15268 Federal Register / Vol. 74, No. 63 / Friday, April 3, 2009 / Notices 

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 μg/ 

l). The permittees requested a modified 

criterion of 12 μg/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 μg/l is justified by the 

data (rather than 12 μg/l). Region 9 is 

proposing to modify the water quality 

criterion in the permit for undissociated 

sulfide to 5.79 μg/l. The proposed 

effluent limitations for undissociated 

sulfide discussed below are based on 

the revised criterion of 5.79 μg/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 


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Federal Register / Vol. 74, No. 63 / Friday, April 3, 2009 / Notices 15269 

1EPA’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. 

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 smallentity 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

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 

FEDERAL COMMUNICATIONS 

COMMISSION 

Notice of Public Information 

Collection(s) Being Reviewed by the 

Federal Communications Commission 

for Extension Under Delegated 

Authority, Comments Requested 

March 30, 2009. 

SUMMARY: The Federal Communications 

Commission, as part of its continuing 

effort to reduce paperwork burden 


sroberts on PROD1PC70 with NOTICES