11325
Federal
Register
/
Vol.
68,
No.
46
/
Monday,
March
10,
2003
/
Rules
and
Regulations
for
the
State
of
Wyoming
and
are
applicable
to
the
following
proposed
major
stationary
sources
or
major
modifications:
*
*
*
*
*

Subpart
AAA
 
[
Amended]

35.
Section
52.2676
is
amended
by
revising
paragraph
(
b)
to
read
as
follows.

§
52.2676
Significant
deterioration
of
air
quality.

*
*
*
*
*
(
b)
Regulations
for
preventing
significant
deterioration
of
air
quality.
The
provisions
of
§
52.21(
a)(
2)
and
(
b)
through
(
bb)
are
hereby
incorporated
and
made
a
part
of
the
applicable
State
plan
for
the
State
of
Guam.

Subpart
BBB
 
[
Amended]

36.
Section
52.2729
is
amended
by
revising
paragraph
(
b)
to
read
as
follows.

§
52.2729
Significant
deterioration
of
air
quality.

*
*
*
*
*
(
b)
Regulations
for
preventing
significant
deterioration
of
air
quality.
The
provisions
of
§
52.21(
a)(
2)
and
(
b)
through
(
bb)
are
hereby
incorporated
and
made
a
part
of
the
applicable
State
plan
for
the
State
of
Puerto
Rico.

Subpart
CCC
 
[
Amended]

37.
Section
52.2779
is
amended
by
revising
paragraph
(
b)
to
read
as
follows.

§
52.2779
Significant
deterioration
of
air
quality.

*
*
*
*
*
(
b)
Regulations
for
preventing
significant
deterioration
of
air
quality.
The
provisions
of
§
52.21(
a)(
2)
and
(
b)
through
(
bb)
are
hereby
incorporated
and
made
a
part
of
the
applicable
State
plan
for
the
Virgin
Islands.
Subpart
DDD
 
[
Amended]

38.
Section
52.2827
is
amended
by
revising
paragraph
(
b)
to
read
as
follows.

§
52.2827
Significant
deterioration
of
air
quality.

*
*
*
*
*
(
b)
Regulations
for
preventing
significant
deterioration
of
air
quality.
The
provisions
of
§
52.21(
a)(
2)
and
(
b)
through
(
bb)
are
hereby
incorporated
and
made
a
part
of
the
applicable
State
plan
for
American
Samoa.

[
FR
Doc.
03
 
5470
Filed
3
 
7
 
03;
8:
45
am]

BILLING
CODE
6560
 
50
 
P
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
122
[
FRL
 
7464
 
2]

RIN
2040
 
AC82
Modification
of
National
Pollutant
Discharge
Elimination
System
(
NPDES)
Permit
Deadline
for
Storm
Water
Discharges
for
Oil
and
Gas
Construction
Activity
That
Disturbs
One
to
Five
Acres
of
Land
AGENCY:
Environmental
Protection
Agency
(
EPA).
ACTION:
Final
rule.

SUMMARY:
Today's
action
postpones
until
March
10,
2005,
the
requirement
to
obtain
National
Pollutant
Discharge
Elimination
System
(
NPDES)
storm
water
permit
for
oil
and
gas
construction
activity
that
disturbs
one
to
five
acres
of
land.
On
December
8,
1999
(
64
FR
68722),
the
U.
S.
Environmental
Protection
Agency
(
EPA)
published
a
final
rule
expanding
the
then­
existing
NPDES
permitting
program
to
require
permit
coverage
by
March
10,
2003
for,
among
other
things,
construction
sites
that
disturb
one
to
five
acres.
As
part
of
that
rulemaking,
EPA
assumed
that
few,
if
any,
oil
and
gas
exploration,
production,
processing,
or
treatment
operations
or
transmission
facilities
would
be
affected
by
the
rule.
Since
rule
promulgation,
EPA
has
become
aware
that
close
to
30,000
oil
and
gas
sites
per
year
may
be
affected
by
the
December
8,
1999,
storm
water
regulations.
The
two­
year
postponement
of
the
deadline
from
March
10,
2003,
to
March
10,
2005,
will
allow
time
for
EPA
to
analyze
and
better
evaluate:
the
impact
of
the
permit
requirements
on
the
oil
and
gas
industry;
the
appropriate
best
management
practices
for
preventing
contamination
of
storm
water
runoff
resulting
from
construction
associated
with
oil
and
gas
exploration,
production,
processing,
or
treatment
operations
or
transmission
facilities;
and
the
scope
and
effect
of
33
U.
S.
C.
1342
(
l)(
2)
and
other
storm
water
provisions
of
the
Clean
Water
Act.
DATES:
This
final
regulation
is
effective
on
March
10,
2003.
For
the
purposes
of
judicial
review,
this
final
rule
is
promulgated
as
of
March
10,
2003
as
provided
in
40
CFR
23.2.
ADDRESSES:
The
administrative
record
is
available
for
inspection
and
copying
at
the
Water
Docket,
located
at
the
EPA
Docket
Center
in
the
basement
of
the
EPA
West
Building,
Room
B
 
102,
at
1301
Constitution
Ave.,
NW.,
Washington,
DC.

FOR
FURTHER
INFORMATION
CONTACT:
Wendy
Bell,
Office
of
Wastewater
Management,
Office
of
Water,
Environmental
Protection
Agency,
at
(
202)
564
 
0746
or
e­
mail:
bell.
wendy@
epa.
gov.

SUPPLEMENTARY
INFORMATION:

I.
General
Information
A.
Regulated
Entities.

Entities
Potentially
Regulated
by
This
Action
Include:

Category
Examples
of
regulated
entities
Industry
.............
Oil
and
gas
producers
constructing
drilling
sites
disturbing
one
to
five
acres
of
land;
construction
site
operators
associated
with
oil
and
gas
construction
projects
disturbing
one
to
five
acres
of
land;
and
operators
of
transmission
facilities
as
defined
herein.

This
table
is
not
intended
to
be
exhaustive,
but
rather
provides
a
guide
for
readers
regarding
entities
likely
to
be
regulated
by
this
action.
This
table
lists
the
types
of
entities
that
EPA
is
now
aware
could
potentially
be
regulated
by
this
action.
Other
types
of
entities
not
listed
in
the
table
could
also
be
regulated.
To
determine
whether
your
facility
or
company
is
regulated
by
this
action,
you
should
carefully
examine
the
applicability
criteria
in
40
CFR
122.26(
b)(
15).
If
you
have
questions
regarding
the
applicability
of
this
action
to
a
particular
entity,
consult
the
person
listed
in
the
preceding
FOR
FURTHER
INFORMATION
CONTACT
section.
B.
How
Can
I
Get
Copies
of
this
Document
and
Other
Related
Information
?

1.
Docket.
EPA
has
established
an
official
public
docket
for
this
action
under
Docket
ID
No.
OW
 
2002
 
0068.
The
official
public
docket
consists
of
the
documents
specifically
referenced
in
this
action,
any
public
comments
received,
and
other
information
related
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Federal
Register
/
Vol.
68,
No.
46
/
Monday,
March
10,
2003
/
Rules
and
Regulations
to
this
action.
Although
a
part
of
the
official
docket,
the
public
docket
does
not
include
Confidential
Business
Information
(
CBI)
or
other
information
whose
disclosure
is
restricted
by
statute.
The
official
public
docket
is
the
collection
of
materials
that
is
available
for
public
viewing
at
the
Water
Docket
in
the
EPA
Docket
Center,
(
EPA/
DC)
EPA
West,
Room
B102,
1301
Constitution
Ave.,
NW.,
Washington,
DC.
The
EPA
Docket
Center
Public
Reading
Room
is
open
from
8:
30
a.
m.
to
4:
30
p.
m.,
Monday
through
Friday,
excluding
legal
holidays.
The
telephone
number
for
the
Public
Reading
Room
is
(
202)
566
 
1744,
and
the
telephone
number
for
the
Water
Docket
is
(
202)
566
 
2426.
2.
Electronic
Access.
You
may
access
this
Federal
Register
document
electronically
through
the
EPA
Internet
under
the
Federal
Register
listings
at
http://
www.
epa.
gov/
fedrgstr/.
An
electronic
version
of
the
public
docket
is
available
through
EPA's
electronic
public
docket
and
comment
system,
EPA
Dockets.
You
may
use
EPA
Dockets
at
http://
www.
epa.
gov/
edocket/
to
view
public
comments,
access
the
index
listing
of
the
contents
of
the
official
public
docket,
and
to
access
those
documents
in
the
public
docket
that
are
available
electronically.
Although
not
all
docket
materials
may
be
available
electronically,
you
may
still
access
any
of
the
publicly
available
docket
materials
through
the
docket
facility
identified
in
Section
I.
B.
1.
Once
in
the
system,
select
``
search,''
then
key
in
the
appropriate
docket
identification
number.

C.
When
Does
This
Rule
Take
Effect?

Because
this
rule
provides
temporary
relief
from
permitting
requirements
for
certain
dischargers,
this
rule
is
not
subject
to
the
general
requirement
for
a
thirty­
day
waiting
period
after
publication
before
a
final
rule
takes
effect.
5
U.
S.
C.
553(
d)(
1).
Moreover,
pursuant
to
5
U.
S.
C.
553(
d)(
3),
EPA
has
good
cause
to
make
this
rule
effective
immediately.
The
March
10,
2003,
deadline
this
action
extends
is
less
than
thirty
days
after
the
publication
of
this
rule.
Making
this
action
effective
as
soon
as
it's
published
will
help
reduce
any
confusion
by
those
affected
by
the
rule
regarding
the
necessity
for
obtaining
permit
coverage.
EPA
is
aware
of
no
reason
why
those
directly
affected
by
this
rule
would
need,
or
want,
a
waiting
period
before
this
action
becomes
effective.
Therefore,
a
thirtyday
waiting
period
is
unnecessary
and
would
be
contrary
to
the
public
interest.
II.
Background
On
December
30,
2002,
EPA
proposed
a
two­
year
postponement
of
the
permit
requirement
for
oil
and
gas
construction
activity
disturbing
one
to
five
acres
from
March
10,
2003,
to
March
10,
2005,
in
order
to
allow
time
for
EPA
to
analyze
and
better
evaluate
(
1)
The
impact
of
the
permit
requirements
on
the
oil
and
gas
industry,
(
2)
the
appropriate
best
management
practices
for
preventing
contamination
of
storm
water
runoff
resulting
from
construction
associated
with
oil
and
gas
exploration,
production,
processing,
or
treatment
operations
or
transmission
facilities,
and
(
3)
the
scope
and
effect
of
33
U.
S.
C.
1342
(
l)(
2)
and
other
storm
water
provisions
of
the
Clean
Water
Act.
In
that
proposal,
EPA
explained
the
background
of
the
NPDES
construction
permit
requirements,
and
why
EPA
believes
it
is
appropriate
to
provide
a
two­
year
postponement
of
permit
requirements
for
construction
of
oil
and
gas
exploration
and
production
facilities
disturbing
one
to
five
acres.
When
describing
construction
activity
that
disturbs
``
one
to
five
acres,''
or
in
discussing
``
small''
construction
activity
in
this
preamble,
EPA
is
referring
to
activities
covered
by
40
CFR
122.26(
b)(
15).

III.
Response
to
Comments
EPA
received
numerous
comments
on
both
the
proposal
to
postpone
permit
requirements
for
small
oil
and
gas
construction
and
the
proposed
construction
general
permit
(
CGP).
The
proposed
CGP
is
available
in
the
official
public
docket
referenced
in
the
Notice
of
Availability
for
Comment
for
the
Proposed
CGP
at
67
FR
78116
(
December
20,
2002).
Comments
on
specific
aspects
of
the
CGP
will
be
addressed
in
the
fact
sheet
that
will
accompany
the
final
permit.
EPA's
responses
to
all
the
comments
received
on
the
proposed
rule
are
available
in
the
Response
to
Comment
document
that
is
part
of
the
docket
for
this
final
rule.
EPA's
responses
to
many
of
the
principal
issues
raised
on
the
proposed
rule
are
discussed
below.

Difference
Between
Oil
and
Gas
and
Other
Construction
A
number
of
commenters
opposed
the
two­
year
postponement,
asserting
that
there
is
no
reason
to
treat
construction
at
oil
and
gas
sites
differently
than
other
types
of
construction.
EPA
agrees
that
sediment
from
all
sources
is
a
concern
but
believes
that
the
oil
and
gas
industry
has
raised
significant
questions
about
the
differences
between
the
nature
of
construction
at
oil
and
gas
sites
and
other
types
of
construction.
One
such
difference
is
the
very
short
time
window
in
which
construction
at
oil
and
gas
sites
usually
occurs.
Most
of
the
studies
that
EPA
relied
on
to
show
the
need
for
regulating
small
construction
activity
looked
at
residential
or
commercial
construction.
It
is
important
for
EPA
to
determine
whether
construction
at
oil
and
gas
sites
is
sufficiently
different
from
these
other
types
of
construction
to
warrant
different
regulatory
treatment.
EPA
has
decided
to
postpone
permitting
requirements
for
small
construction
at
oil
and
gas
sites
for
two
years
so
that
there
is
adequate
time
for
all
the
affected
parties
to
provide
information
and
help
us
determine
how
to
best
ensure
that
such
construction
does
not
cause
sediment
and
erosion
problems
and
that
these
sites
are
not
subject
to
inappropriate
requirements.
Also,
as
reflected
in
the
proposal,
EPA
plans
to
use
this
time
to
assess
the
scope
of
33
U.
S.
C.
1342(
l)(
2)
and
other
storm
water
provisions
of
the
Clean
Water
Act
with
regard
to
storm
water
discharges
caused
by
this
industry.

Environmental
Impact
EPA
received
conflicting
comments
on
the
environmental
impact
of
oil
and
gas
activity.
Some
commenters
claimed
that
there
was
no
evidence
of
negative
environmental
impacts
associated
with
oil
and
gas
activities.
Other
commenters
asserted
that
oil
and
gas
projects
frequently
involved
logging,
grading,
and
road
building,
and
that
these
activities
were
conducted
without
erosion
and
sediment
controls
and
were
therefore
the
source
of
large
amounts
of
sediment
deposition.
As
discussed
above,
EPA
believes
the
two­
year
postponement
will
provide
time
to
evaluate
these
opposing
assertions.
Several
commenters
asserted
that
their
State
currently
requires
erosion
and
sediment
(
E&
S)
controls
and
for
oil
and
gas
operators
therefore
an
NPDES
permit
is
unnecessary.
Other
commenters
indicated
that
oil
and
gas
construction
activity
in
their
area
occurred
without
any
E&
S
controls.
EPA
is
aware
that
some
States
have
good
E&
S
programs
in
place,
and
that
other
States
do
not.
During
the
two­
year
postponement,
EPA
will
evaluate
State
E&
S
controls
related
to
oil
and
gas
construction
activity
in
comparison
to
requirements
that
would
be
imposed
through
an
NPDES
permit.

Economic
Impact
A
number
of
commenters
asserted
that
EPA
did
not
perform
an
economic
analysis
on
the
Phase
II
rule's
effect
on
oil
and
gas,
the
national
economy,
and
small
businesses.
EPA
published
an
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10,
2003
/
Rules
and
Regulations
extensive
economic
analysis
that
is
described
in
the
Phase
II
rule.
EPA
did
not
specifically
address
oil
and
gas
because
the
information
we
considered
at
that
time
suggested
that
most
oil
and
gas
sites
would
disturb
less
than
one
acre.
EPA's
decision
to
postpone
the
construction
permit
requirements
for
small
oil
and
gas
sites
is
partially
based
on
the
information
that
we
became
aware
of
since
publication
of
the
Phase
II
rule.
EPA
needs
the
additional
time
to
thoroughly
consider
the
impact
of
the
construction
requirements
on
the
oil
and
gas
industry.
Commenters
also
stated
that
EPA
did
not
do
the
proper
evaluation
of
energyrelated
production
activities
in
accordance
with
Executive
Order
13211.
Executive
Order
13211
was
issued
on
May
22,
2001
which
was
well
after
promulgation
of
the
Phase
II
rule.
However,
in
the
spirit
of
this
Executive
Order,
during
the
two
year
postponement,
EPA
will
analyze
the
question
of
whether
the
imposition
of
storm
water
permitting
requirements
on
construction
of
oil
and
gas
facilities
of
one
to
five
acres
would
result
in
a
significant
energy
impact.

Common
Plan
Commenters
asked
that
EPA
clarify
how
the
``
common
plan
of
development''
applies
at
oil
and
gas
sites,
so
they
would
know
the
extent
of
applicability
of
the
two­
year
permit
postponement.
Where
construction
activity
is
part
of
a
larger
common
plan
of
development
or
sale
that
will
disturb
five
acres
or
more,
the
two
year
postponement
provided
for
in
this
final
rule
does
not
apply.
The
primary
concern
raised
by
commenters
was
that
when
a
field
is
first
developed,
the
producer
does
not
know
when,
where,
and
how
many
wells
will
be
drilled.
EPA
acknowledged
this
broader
issue
of
what
constitutes
a
``
common
plan''
in
the
``
Frequently
Asked
Questions''
section
of
the
proposed
fact
sheet
for
the
proposed
CGP.
EPA
stated
that
``
If
you
have
a
long
range
master
plan
of
development
where
some
portions
of
the
master
plan
are
a
conceptual
rather
than
a
specific
plan
of
future
development
and
the
future
construction
activities
would,
if
they
occur
at
all,
happen
over
an
extended
time
period,
you
may
consider
the
`
conceptional'
phases
of
development
to
be
separate
`
common
plans'
provided
the
`
conceptual
phase'
has
not
been
funded
and
periods
of
construction
for
the
physically
interconnected
phases
will
not
overlap.''
Fact
Sheet
for
the
Issuance
of
a
NPDES
Permit.
(
This
proposed
fact
sheet
is
available
in
the
official
public
docket
referenced
in
the
Notice
of
Availability
for
Comment
for
the
proposed
CGP
at
67
FR
78116
(
Dec.
20,
2002).)
The
proposed
fact
sheet
goes
on
to
describe
a
possible
example
in
the
context
of
the
oil
and
gas
industry.
EPA
plans
to
further
clarify
this
issue
when
it
takes
final
action
on
the
proposed
CGP.

Exemption
Many
commenters
reiterated
their
belief
that
Congress
intended
CWA
402(
l)(
2)
to
exempt
all
types
of
activities,
including
construction,
associated
with
oil
and
gas
exploration,
production,
processing,
treatment,
or
transmission.
EPA
recognizes
that
this
issue
is,
and
has
been,
of
concern
to
many
in
the
oil
and
gas
industry.
See,
Appalachian
Energy
Group,
et
al.
v.
EPA,
33
F.
3d
319
(
4th
Cir.
1994).
Today's
action
is
limited
to
postponing
permit
requirements
for
certain
oil
and
gas
construction
activities
and,
in
this
limited
context,
should
not
conflict
with
these
commenters'
position.
Again,
as
reflected
in
the
proposal,
EPA
plans
to
use
the
two­
year
extension
to
assess
the
scope
of
33
U.
S.
C.
1342(
l)(
2)
with
regard
to
storm
water
discharges
caused
by
this
industry.
Differences
between
construction
disturbing
five
or
more
acres
(``
large''
construction.
See
40
CFR
122.26(
b)(
14)(
x).)
and
construction
disturbing
one
to
five
acres
(``
small''
construction.
See
40
CFR
122.26(
b)(
15).)
Several
commenters
believe
that
the
two­
year
postponement
should
apply
to
large
construction
as
well
as
smaller
sites.
Large
construction
has
been
regulated
as
an
industrial
activity
under
CWA
section
402(
p)(
2)
since
the
promulgation
of
the
Phase
I
storm
water
rule.
EPA
did
not
propose
to
take
any
action
with
respect
to
large
construction
activity
and
did
not
seek
comment
on
this
issue.
The
Agency
declines
to
respond
to
these
comments,
as
they
are
outside
the
scope
of
the
action
proposed.

Transmission
facilities
EPA
received
many
questions
about
our
definition
of
``
transmission
facilities.''
EPA
has
looked
at
the
information
submitted
by
the
oil
and
gas
industry
to
help
understand
what
types
of
pipelines
should
be
considered
``
transmission
facilities.''
For
the
purposes
of
today's
action,
the
term
``
oil
and
gas
exploration,
production,
processing,
and
treatment
operations
or
transmission
facilities''
includes
gathering
lines,
flowlines,
feeder
lines,
and
transmission
lines.
The
construction
of
water
lines,
electrical
utilities
lines,
etc.
as
part
of
the
oil
and
gas
exploration,
production,
processing,
treatment,
and
transmission
of
oil
and
gas
are
also
included.
Transmission
lines
are
typically
major
pipelines
(
e.
g.,
interstate
and
intrastate
pipelines)
that
transport
crude
oil
and
natural
gas
over
long
distances
and
are
large­
diameter
pipes
operating
at
relatively
high
pressure.
Many
of
these
pipelines
traverse
long
distances
and
disturb
over
five
acres
(
and
as
such,
are
covered
by
EPA's
permitting
requirements
for
large
construction
activity).
Pipelines
that
transport
refined
petroleum
product
and
chemicals
from
refineries
and
chemical
plants
are
not
included
in
the
terms
described
in
today's
rule
as
potentially
eligible
for
the
two
year
postponement.
One
commenter
requested
that
EPA
clarify
in
its
final
rule
that
its
definition
of
transmission
be
consistent
with
terms
used
by
the
U.
S.
Department
of
Transportation
(
DOT)
at
49
CFR
part
192
(
Transportation
of
Natural
and
Other
Gas
by
Pipeline:
Minimum
Federal
Safety
Standards).
Commenters
also
asked
about
other
types
of
pipelines
(
i.
e.,
distribution
lines).
Distribution
lines
are
those
pipelines
that
deliver
natural
gas
to
homes,
businesses,
etc.
and
operate
at
relatively
low
pressures.
EPA
does
not
consider
distribution
lines
to
be
transmission
lines,
and
as
such,
these
lines
are
not
included
in
the
terms
described
in
today's
rule
as
potentially
eligible
for
the
two
year
postponement.
While
EPA
is
not
codifying
DOT
definitions,
the
Agency
does
consider
the
DOT's
definitions
to
be
consistent
with
EPA's
interpretation
of
``
transmission''
in
this
rulemaking.

IV.
Today's
Action
In
today's
action,
EPA
is
postponing
until
March
10,
2005,
the
permit
authorization
deadline
for
National
Pollutant
Discharge
Elimination
System
(
NPDES)
storm
water
permits
for
oil
and
gas
construction
activity
that
disturbs
one
to
five
acres
of
land
and
sites
disturbing
less
than
one
acre
that
are
part
of
a
larger
common
plan
of
development
or
sale
that
disturbs
one
to
five
acres.
Since
January
2002,
EPA
has
become
aware
that
close
to
30,000
oil
and
gas
sites
may
be
affected
by
the
Phase
II
storm
water
regulations.
In
the
spirit
of
Executive
Order
13211,
which
directs
EPA
to
consider
the
impact
of
its
actions
on
energy­
related
production
activities,
the
Agency
believes
it
is
important
to
review
this
new
information
in
light
of
the
Phase
II
rule
to
determine
the
impact
on
the
oil
and
gas
industry.
During
the
two­
year
postponement
of
this
deadline,
EPA
plans
to
gather
information
about
the
area
of
land
disturbed
during
construction
of
oil
and
gas
exploration
and
production
facilities.

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Rules
and
Regulations
In
evaluating
the
impact
of
this
action,
the
Agency
will
work
with
States,
industry,
and
other
entities
to
gather
and
evaluate
data
on
the
development
and
use
of
appropriate
best
management
practices
for
the
oil
and
gas
industry.
As
part
of
today's
action,
EPA
is
seeking
additional
information
on
size,
location
and
other
site
characteristics
to
better
evaluate
compliance
costs,
as
well
as
technical
and
cost
data
to
evaluate
best
management
practices
appropriate
to
controlling
storm
water
runoff
from
oil
and
gas
starts.
EPA
will
also
evaluate
the
applicability
of
the
exemption
at
33
U.
S.
C.
1342(
l)(
2)
to
construction
activity
at
oil
and
gas
exploration,
production,
processing,
or
treatment
operations
or
transmission
facilities.
EPA
will
use
the
additional
data
and
analyses
produced
during
the
two­
year
period
to
determine
the
appropriate
NPDES
requirements,
if
any,
for
small
construction
of
oil
and
gas
exploration
and
production
facilities.

V.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
Under
Executive
Order
12866,
(
58
FR
51735
(
October
4,
1993))
the
Agency
must
determine
whether
the
regulatory
action
is
``
significant''
and
therefore
subject
to
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.
It
has
been
determined
that
this
rule
is
not
a
``
significant
regulatory
action''
under
the
terms
of
Executive
Order
12866
and
is
therefore
not
subject
to
OMB
review.

B.
Paperwork
Reduction
Act
This
action
does
not
impose
an
information
collection
burden
under
the
provisions
of
the
Paperwork
Reduction
Act,
44
U.
S.
C.
3501
et
seq.
It
merely
postpones
implementation
of
an
existing
rule
deadline.
Burden
means
the
total
time,
effort,
or
financial
resources
expended
by
persons
to
generate,
maintain,
retain,
or
disclose
or
provide
information
to
or
for
a
Federal
agency.
This
includes
the
time
needed
to
review
instructions;
develop,
acquire,
install,
and
utilize
technology
and
systems
for
the
purposes
of
collecting,
validating,
and
verifying
information;
processing
and
maintaining
information,
and
disclosing
and
providing
information;
adjust
the
existing
ways
to
comply
with
any
previously
applicable
instructions
and
requirements;
train
personnel
to
be
able
to
respond
to
a
collection
of
information;
search
data
sources;
complete
and
review
the
collection
of
information;
and
transmit
or
otherwise
disclose
the
information.
An
Agency
may
not
conduct
or
sponsor,
and
a
person
is
not
required
to
respond
to
a
collection
of
information
unless
it
displays
a
currently
valid
OMB
control
number.
The
OMB
control
numbers
for
EPA's
regulations
are
listed
in
40
CFR
Part
9
and
48
CFR
Chapter
15.

C.
Regulatory
Flexibility
Act
The
Regulatory
Flexibility
Act
(
RFA),
5
U.
S.
C.
601
et
seq.,
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.
For
purposes
of
assessing
the
impacts
of
today's
final
rule
on
small
entities,
small
entity
is
defined
as:
(
1)
A
small
business
based
on
SBA
size
standards;
(
2)
a
small
governmental
jurisdiction
that
is
a
government
of
a
city,
county,
town,
school
district
or
special
district
with
a
population
of
less
than
50,000;
and
(
3)
a
small
organization
that
is
any
not­
for­
profit
enterprise
which
is
independently
owned
and
operated
and
is
not
dominant
in
its
field.
After
considering
the
economic
impacts
of
today's
final
rule
on
small
entities,
I
certify
that
this
action
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
It
merely
postpones
the
permit
authorization
deadline
for
oil
and
gas
construction
activities
that
disturb
one
to
five
acres.
D.
Unfunded
Mandates
Reform
Act
Title
II
of
the
Unfunded
Mandates
Reform
Act
of
1995
(
UMRA),
Pub.
L.
104
 
4,
establishes
requirements
for
Federal
agencies
to
assess
the
effects
of
their
regulatory
actions
on
State,
local,
and
tribal
governments
and
the
private
sector.
Under
section
202
of
the
UMRA,
EPA
generally
must
prepare
a
written
statement,
including
a
cost­
benefit
analysis,
for
proposed
and
final
rules
with
``
Federal
mandates''
that
may
result
in
expenditures
to
State,
local,
and
tribal
governments,
in
the
aggregate,
or
to
the
private
sector,
of
$
100
million
or
more
in
any
one
year.
Before
promulgating
an
EPA
rule
for
which
a
written
statement
is
needed,
section
205
of
the
UMRA
generally
requires
EPA
to
identify
and
consider
a
reasonable
number
of
regulatory
alternatives
and
adopt
the
least
costly,
most
costeffective
or
least
burdensome
alternative
that
achieves
the
objectives
of
the
rule.
The
provisions
of
section
205
do
not
apply
when
they
are
inconsistent
with
applicable
law.
Moreover,
section
205
allows
EPA
to
adopt
an
alternative
other
than
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
if
the
Administrator
publishes
with
the
final
rule
an
explanation
why
that
alternative
was
not
adopted.
Before
EPA
establishes
any
regulatory
requirements
that
may
significantly
or
uniquely
affect
small
governments,
including
tribal
governments,
it
must
have
developed
under
section
203
of
the
UMRA
a
small
government
agency
plan.
The
plan
must
provide
for
notifying
potentially
affected
small
governments,
enabling
officials
of
affected
small
governments
to
have
meaningful
and
timely
input
in
the
development
of
EPA
regulatory
proposals
with
significant
Federal
intergovernmental
mandates,
and
informing,
educating,
and
advising
small
governments
on
compliance
with
the
regulatory
requirements.
EPA
has
determined
that
this
rule
does
not
contain
a
Federal
mandate
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.
This
rule
does
not
impose
any
costs.
It
merely
postpones
the
permit
authorization
deadline
for
oil
and
gas
construction
activities
that
disturb
one
to
five
acres.
Thus,
today's
final
rule
is
not
subject
to
the
requirements
of
sections
202
and
205
of
the
UMRA.
For
the
same
reason,
EPA
has
determined
that
this
rule
contains
no
regulatory
requirements
that
might
significantly
or
uniquely
affect
small
governments.
Thus,
today's
final
rule
is
not
subject
to
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the
requirements
of
section
203
of
UMRA.

E.
Executive
Order
13132:
Federalism
Executive
Order
13132,
entitled
``
Federalism''
(
64
FR
43255,
August
10,
1999),
requires
EPA
to
develop
an
accountable
process
to
ensure
``
meaningful
and
timely
input
by
State
and
local
officials
in
the
development
of
regulatory
policies
that
have
federalism
implications.''
``
Policies
that
have
federalism
implications''
is
defined
in
the
Executive
Order
to
include
regulations
that
have
``
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government.''
This
rule
does
not
have
federalism
implications.
It
will
not
have
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government,
as
specified
in
Executive
Order
13132.
It
merely
postpones
the
permit
authorization
deadline
for
oil
and
gas
construction
activities
that
disturb
one
to
five
acres.
Thus,
Executive
Order
13132
does
not
apply
to
this
rule.

F.
Executive
Order
13175:
Consultation
and
Coordination
With
Indian
Tribal
Governments
Executive
Order
13175,
entitled,
``
Consultation
and
Coordination
with
Indian
Tribal
Governments''
(
65
FR
67249,
November
9,
2000),
requires
EPA
to
develop
an
accountable
process
to
ensure
``
meaningful
and
timely
input
by
tribal
officials
in
the
development
of
regulatory
policies
that
have
tribal
implications.''
``
Policies
that
have
tribal
implications''
is
defined
in
the
Executive
Order
to
include
regulations
that
have
``
substantial
direct
effects
on
one
or
more
Indian
tribes,
on
the
relationship
between
the
Federal
government
and
Indian
tribes,
or
on
the
distribution
of
power
and
responsibilities
between
the
Federal
government
and
Indian
tribes.''
This
rule
does
not
have
Tribal
implications.
It
will
not
have
substantial
direct
effects
on
Tribal
governments,
on
the
relationship
between
the
Federal
government
and
Indian
tribes,
or
on
the
distribution
of
power
and
responsibilities
between
the
Federal
government
and
Indian
tribes,
as
specified
in
Executive
Order
13175.
It
merely
postpones
the
permit
authorization
deadline
for
oil
and
gas
construction
activities
that
disturb
one
to
five
acres.
Thus,
Executive
Order
13175
does
not
apply
to
this
rule.

G.
Executive
Order
13045:
Protection
of
Children
From
Environmental
Health
and
Safety
Risks
Executive
Order
13045:
``
Protection
of
Children
from
Environmental
Health
Risks
and
Safety
Risks''
(
62
FR
19885,
April
23,
1997)
applies
to
any
rule
that:
(
1)
Is
determined
to
be
``
economically
significant''
as
defined
under
Executive
Order
12866,
and
(
2)
concerns
an
environmental
health
or
safety
risk
that
EPA
has
reason
to
believe
may
have
a
disproportionate
effect
on
children.
If
the
regulatory
action
meets
both
criteria,
the
Agency
must
evaluate
the
environmental
health
or
safety
effects
of
the
planned
rule
on
children,
and
explain
why
the
planned
regulation
is
preferable
to
other
potentially
effective
and
reasonably
feasible
alternatives
considered
by
the
Agency.
This
regulation
is
not
subject
to
Executive
Order
13045
because
it
is
not
economically
significant
as
defined
under
E.
O.
12866.

H.
Executive
Order
13211:
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use
This
rule
is
not
subject
to
Executive
Order
13211,
``
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use''
(
66
FR
28355
(
May
22,
2001))
because
it
is
not
a
significant
regulatory
action
under
Executive
Order
12866.
The
only
effect
of
this
rule
is
to
delay
the
permit
authorization
requirement
for
affected
small
oil
and
gas
operations
by
two
years.
As
noted
above,
EPA
will
use
the
two­
year
delay
to
analyze
the
broader
question
of
whether
the
imposition
of
storm
water
permitting
requirements
on
construction
of
oil
and
gas
facilities
disturbing
one
to
five
acres
would
result
in
a
significant
energy
impact,
and
will
factor
the
results
of
this
analysis
into
its
final
determination
regarding
appropriate
requirements
for
such
facilities.

I.
National
Technology
Transfer
And
Advancement
Act
As
noted
in
the
proposed
rule,
section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
of
1995
(``
NTTAA''),
Pub
L.
No.
104
 
113,
section
12(
d)
(
15
U.
S.
C.
272
note)
directs
EPA
to
use
voluntary
consensus
standards
in
its
regulatory
activities
unless
to
do
so
would
be
inconsistent
with
applicable
law
or
otherwise
impractical.
Voluntary
consensus
standards
are
technical
standards
(
e.
g.,
materials
specifications,
test
methods,
sampling
procedures,
and
business
practices)
that
are
developed
or
adopted
by
voluntary
consensus
standard
bodies.
The
NTTAA
directs
EPA
to
provide
Congress,
through
OMB,
explanations
when
the
Agency
decides
not
to
use
available
and
applicable
voluntary
consensus
standards.
This
rulemaking
does
not
involve
technical
standards.
Therefore,
EPA
did
not
consider
the
use
of
any
voluntary
consensus
standards.

J.
Congressional
Review
Act
The
Congressional
Review
Act,
5
U.
S.
C.
801
et
seq.,
as
added
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996,
generally
provides
that
before
a
rule
may
take
effect,
the
agency
promulgating
the
rule
must
submit
a
rule
report,
which
includes
a
copy
of
the
rule,
to
each
House
of
the
Congress
and
to
the
Comptroller
General
of
the
United
States.
EPA
will
submit
a
report
containing
this
rule
and
other
required
information
to
the
U.
S.
Senate,
the
U.
S.
House
of
Representatives,
and
the
Comptroller
General
of
the
United
States
prior
to
publication
of
the
rule
in
the
Federal
Register.
A
major
rule
cannot
take
effect
until
60
days
after
it
is
published
in
the
Federal
Register.
This
action
is
not
a
``
major
rule''
as
defined
by
5
U.
S.
C.
804(
2).
This
rule
will
be
effective
March
10,
2003.

List
of
Subjects
in
40
CFR
Part
122
Environmental
protection,
Administrative
practice
and
procedure,
Confidential
business
information,
Hazardous
substances,
Reporting
and
recordkeeping
requirements,
Water
pollution
control.

Dated:
March
5,
2003.
Christine
Todd
Whitman,
Administrator.

For
the
reasons
set
forth
in
the
preamble,
chapter
I
of
title
40
of
the
Code
of
Federal
Regulations
is
amended
as
follows:

PART
122
 
EPA
ADMINISTERED
PERMIT
PROGRAMS:
THE
NATIONAL
POLLUTANT
DISCHARGE
ELIMINATION
SYSTEM
1.
The
authority
citation
for
part
122
continues
to
read
as
follows:

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

2.
Revise
§
122.26(
e)(
8)
to
read
as
follows:

§
122.26
Storm
water
discharges
(
applicable
to
State
NPDES
programs,
see
§
123.25).

*
*
*
*
*
(
e)
*
*
*

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Federal
Register
/
Vol.
68,
No.
46
/
Monday,
March
10,
2003
/
Rules
and
Regulations
(
8)
For
any
storm
water
discharge
associated
with
small
construction
activity
identified
in
paragraph
(
b)(
15)(
i)
of
this
section,
see
§
122.21(
c)(
1).
Discharges
from
these
sources,
other
than
discharges
associated
with
small
construction
activity
at
oil
and
gas
exploration,
production,
processing,
and
treatment
operations
or
transmission
facilities,
require
permit
authorization
by
March
10,
2003,
unless
designated
for
coverage
before
then.
Discharges
associated
with
small
construction
activity
at
such
oil
and
gas
sites
require
permit
authorization
by
March
10,
2005.
*
*
*
*
*
[
FR
Doc.
03
 
5708
Filed
3
 
7
 
03;
8:
45
am]

BILLING
CODE
6560
 
50
 
P
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
180
[
OPP
 
2002
 
0348;
FRL
 
7292
 
6]

Aluminum
tris
(
O­
ethylphosphonate);
Pesticide
Tolerance
AGENCY:
Environmental
Protection
Agency
(
EPA).
ACTION:
Final
rule.

SUMMARY:
This
regulation
establishes
a
tolerance
for
residues
of
the
fungicide
aluminum
tris
(
O­
ethylphosphonate)
(
fosetyl­
Al)
in
or
on
onion,
green.
The
Interregional
Research
Project
#
4
(
IR­
4),
Center
for
Minor
Crop
Management,
Rutgers,
The
State
University
of
New
Jersey,
681
U.
S.
Highway
#
1
South,
North
Brunswick,
NJ
08902
 
3390
requested
this
tolerance
under
the
Federal
Food,
Drug,
and
Cosmetic
Act
(
FFDCA),
as
amended
by
the
Food
Quality
Protection
Act
of
1996
(
FQPA).
DATES:
This
regulation
is
effective
March
10,
2003.
Objections
and
requests
for
hearings,
identified
by
docket
ID
number
OPP
 
2002
 
0348,
must
be
received
on
or
before
May
9,
2003.
ADDRESSES:
Written
objections
and
hearing
requests
may
be
submitted
electronically,
by
mail,
or
through
hand
delivery/
courier.
Follow
the
detailed
instructions
as
provided
in
Unit
VI.
of
the
SUPPLEMENTARY
INFORMATION.

FOR
FURTHER
INFORMATION
CONTACT:
Sidney
Jackson,
Registration
Division
(
7505C),
Office
of
Pesticide
Programs,
Environmental
Protection
Agency,
1200
Pennsylvania
Ave.,
NW.,
Washington,
DC
20460
 
0001;
telephone
number:
(
703)
305
 
7610;
e­
mail
address:
jackson.
sidney@
epa.
gov.

SUPPLEMENTARY
INFORMATION:
I.
General
Information
A.
Does
this
Action
Apply
to
Me?
You
may
be
potentially
affected
by
this
action
if
you
are
an
agricultural
producer,
food
manufacturer,
or
pesticide
manufacturer.
The
North
American
Industrial
Classification
System
(
NAICS)
codes
have
been
provided
to
assist
you
and
others
in
determining
whether
this
action
might
apply
to
certain
entities.
Potentially
affected
entities
may
include,
but
are
not
limited
to:
 
Crop
production
(
NAIC
code
111)
 
Animal
production
(
NAIC
code
112)
 
Food
manufacturing
(
NAIC
code
311)
 
Pesticide
manufacturing
(
NAIC
code
32532)
This
listing
is
not
intended
to
be
exhaustive,
but
rather
provides
a
guide
for
readers
regarding
entities
likely
to
be
affected
by
this
action.
Other
types
of
entities
not
listed
in
this
unit
could
also
be
affected.
To
determine
whether
you
or
your
business
may
be
affected
by
this
action,
you
should
carefully
examine
the
applicability
provisions
in
OPP
 
2002
 
0348.
If
you
have
any
questions
regarding
the
applicability
of
this
action
to
a
particular
entity,
consult
the
person
listed
under
FOR
FURTHER
INFORMATION
CONTACT.

B.
How
Can
I
Get
Copies
of
this
Document
and
Other
Related
Information?

1.
Docket.
EPA
has
established
an
official
public
docket
for
this
action
under
docket
identification
(
ID)
number
OPP
 
2002
 
0348.
The
official
public
docket
consists
of
the
documents
specifically
referenced
in
this
action,
any
public
comments
received,
and
other
information
related
to
this
action.
Although
a
part
of
the
official
docket,
the
public
docket
does
not
include
Confidential
Business
Information
(
CBI)
or
other
information
whose
disclosure
is
restricted
by
statute.
The
official
public
docket
is
the
collection
of
materials
that
is
available
for
public
viewing
at
the
Public
Information
and
Records
Integrity
Branch
(
PIRIB),
Rm.
119,
Crystal
Mall
#
2,
1921
Jefferson
Davis
Hwy.,
Arlington,
VA.
This
docket
facility
is
open
from
8:
30
a.
m.
to
4
p.
m.,
Monday
through
Friday,
excluding
legal
holidays.
The
docket
telephone
number
is
(
703)
305
 
5805.
2.
Electronic
access.
You
may
access
this
Federal
Register
document
electronically
through
the
EPA
Internet
under
the
``
Federal
Register''
listings
at
http://
www.
epa.
gov/
fedrgstr/.
A
frequently
updated
electronic
version
of
40
CFR
part
180
is
available
at
http://
www.
access.
gpo.
gov/
nara/
cfr/
cfrhtml_
00/
Title_
40/
40cfr180_
00.
html,
a
beta
site
currently
under
development.
An
electronic
version
of
the
public
docket
is
available
through
EPA's
electronic
public
docket
and
comment
system,
EPA
Dockets.
You
may
use
EPA
Dockets
at
http://
www.
epa.
gov/
edocket/
to
submit
or
view
public
comments,
access
the
index
listing
of
the
contents
of
the
official
public
docket,
and
to
access
those
documents
in
the
public
docket
that
are
available
electronically.
Although
not
all
docket
materials
may
be
available
electronically,
you
may
still
access
any
of
the
publicly
available
docket
materials
through
the
docket
facility
identified
in
Unit
I.
B.
1.
Once
in
the
system,
select
``
search,''
then
key
in
the
appropriate
docket
ID
number.

II.
Background
and
Statutory
Findings
In
the
Federal
Register
of
January
2,
2003
(
68
FR
103)
(
FRL
 
7282
 
5),
EPA
issued
a
notice
pursuant
to
section
408
of
FFDCA,
21
U.
S.
C.
346a,
as
amended
by
FQPA
(
Public
Law
104
 
170),
announcing
the
filing
of
a
pesticide
petition
(
PP
2E6366)
by
IR­
4,
Center
for
Minor
Crop
Management,
Rutgers,
The
State
University
of
New
Jersey,
681
U.
S.
Highway
#
1
South,
North
Brunswick,
NJ
08902
 
3390.
That
notice
included
a
summary
of
the
petition
prepared
by
Bayer
CropScience,
the
registrant.
The
petition
requested
that
40
CFR
180.415
be
amended
by
establishing
a
tolerance
for
residues
of
the
fungicide
fosetyl­
Al,
aluminum
tris
(
Oethylphosphonate
in
or
on
onion,
green
at
10
parts
per
million
(
ppm).
There
were
no
comments
received
in
response
to
the
notice
of
filing.
Section
408(
b)(
2)(
A)(
i)
of
the
FFDCA
allows
EPA
to
establish
a
tolerance
(
the
legal
limit
for
a
pesticide
chemical
residue
in
or
on
a
food)
only
if
EPA
determines
that
the
tolerance
is
``
safe.''
Section
408(
b)(
2)(
A)(
ii)
of
the
FFDCA
defines
``
safe''
to
mean
that
``
there
is
a
reasonable
certainty
that
no
harm
will
result
from
aggregate
exposure
to
the
pesticide
chemical
residue,
including
all
anticipated
dietary
exposures
and
all
other
exposures
for
which
there
is
reliable
information.''
This
includes
exposure
through
drinking
water
and
in
residential
settings,
but
does
not
include
occupational
exposure.
Section
408(
b)(
2)(
C)
of
the
FFDCA
requires
EPA
to
give
special
consideration
to
exposure
of
infants
and
children
to
the
pesticide
chemical
residue
in
establishing
a
tolerance
and
to
``
ensure
that
there
is
a
reasonable
certainty
that
no
harm
will
result
to
infants
and
children
from
aggregate
exposure
to
the
pesticide
chemical
residue....''

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