Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
[
Comment
responses
are
presented
as
follows.
Comments
are
grouped
into
topics,
with
the
topic
bolded
at
the
top
of
the
group
of
comments.
Following,
each
comment
(
or
comment
summary)
is
identified
by
a
comment
tracking
number
and
then
the
narrative
(
or
narrative
summary)
of
the
comment.
EPA's
response
is
provided
after
that.
Finally,
a
list
of
each
of
the
associated
document
numbers
from
EPA's
Water
Docket
is
provided
in
the
format
I­
E1­###.]

Comment
Topic
Index
Page
Clarifications
­
Final
Stabilization
.....................................................................................................................................................
1
Clarifications
­
Applicability
..............................................................................................................................................................
2
Clarifications
­
General
...................................................................................................................................................................
4
Administrative
Procedure
Act
.........................................................................................................................................................
7
State
Implementation
.....................................................................................................................................................................
8
Environmental
Impacts
­
Focus
on
Metropolitan
Areas
....................................................................................................................
9
Environmental
Impacts
­
Lack
of
Benefits
Data
for
Phase
II
...........................................................................................................
10
Environmental
Impacts
­
Lack
of
Data
on
Need
for
Regulation
of
Oil
and
Gas
Sites
.......................................................................
11
Environmental
Impacts
­
Oil
and
Gas
Sites
Contribute
Sediment
to
Streams
..................................................................................
12
Environmental
Impacts
­
Attainment
of
Water
Quality
Standards
....................................................................................................
14
Postponement
Should
Include
Sites
Over
5
Acres
.........................................................................................................................
16
Postponement
Should
Include
Additional
Groups
(
pipelines,
gathering
lines,
etc.)
...........................................................................
18
Burden
­
Economic
Analysis
on
Effects
of
Phase
II
Rule
................................................................................................................
21
Burden
­
Permit
Unnecessary
(
cause
financial
harm/
burden)
.........................................................................................................
23
Burden
­
Impact
on
Domestic
Energy
Development
.......................................................................................................................
26
Burden
­
General
..........................................................................................................................................................................
27
Difference
­
No
Permit
Needed
Because
Oil
and
Gas
is
Different
Than
Other
Construction
............................................................
32
Difference
­
Permit
Needed
Because
Oil
and
Gas
is
No
Different
Than
Other
Construction
............................................................
33
Difference
­
Common
Plan
of
Development
Not
Appropriate
for
Oil
and
Gas
..................................................................................
35
Difference
­
Use
of
NOI/
NOTs
.......................................................................................................................................................
37
Difference
­
General
......................................................................................................................................................................
38
No
Proper
Evaluation
of
Energy­
Related
Production
Activities
(
EO
13211)
.....................................................................................
39
Development
of
Storm
Water
Requirements
for
Oil
and
Gas
..........................................................................................................
40
Regulations­
Clean
Water
Act
Interpretation
Correct
.......................................................................................................................
42
Regulations­
Clean
Water
Act
Interpretation
Incorrect
.....................................................................................................................
43
Regulations­
Clean
Water
Act
Exemption
Inconsistent
with
Statutory
Requirements
........................................................................
47
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
1
Topic:
Clarifications
­
Final
Stabilization
Comment
Summary
69
The
proposed
definition
of
'
land
disturbance'
or
'
under
construction'
does
not
define
when
'
disturbance'
or
'
construction'
ends,
and
seems
to
assume
that
this
will
be
when
'
final
stabilization'
has
occurred.
Oil
and
gas
sites
are
not
'
finally
stabilized',
as
EPA
defines
that
term,
and
the
possible
requirement
that
'
disturbance'
or
'
construction'
does
not
end
until
'
final
stabilization'
occurs
therefore
fails
to
encompass
normal
prudent
operating
practices
accepted
in
industry.
EPA
Response:
This
comment
relates
to
the
proposed
Construction
General
Permit
not
the
proposed
oil
and
gas
extension
rule,
and
will
be
addressed
in
the
responses
to
the
proposed
Construction
General
Permit
comments.
I­
E1­
028
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
2
Topic:
Clarifications
­
Applicability
Comment
Summary
47
We
request
that
EPA
clarify
in
its
final
rule
that
'
transmission,'
for
purposes
of
the
permit
deadline
delay,
includes
interstate
and
intrastate
'
pipelines'
that
transport
oil
and
gas.
We
seek
clarification
that
construction
activities
on
all
transmission
(
i.
e.,
pipeline)
activities
are
included
in
the
two­
year
delay
and
be
a
part
of
EPA's
evaluation
for
Phase
II
implementation.
This
interpretation
would
be
consistent
with
the
Department
of
Transportation's
use
of
the
term
'
transmission
facilities'
within
their
jurisdiction,
as
evidenced
in
49
C.
F.
R.
§
§
192
and
195.
The
remote,
disperse
and
sporadic
nature
of
small
pipeline
construction
projects
is
similar
to
oil
and
gas
activities
clearly
covered
under
the
delay
rule.
Our
discussions
with
the
EPA
staff
indicate
that
'
pipeline'
construction
would
be
included
in
the
postponement.
The
language
utilized
by
EPA
in
the
Federal
Register
notice
is
somewhat
unclear
on
the
extent
of
'
transmission'
operations.
EPA
Response:
EPA
agrees
with
the
commenters
assertion
that
the
term
"
transmission"
as
used
in
the
rule
should
include
interstate
and
intrastate
pipelines
that
transport
oil
and
gas.
The
Agency
acknowledges
that
while
it
is
not
codifying
definitions
of
certain
applicable
terms
codified
by
the
U.
S.
Department
of
Transportation
(
DOT),
EPA
does
believe
that
its
interpretation
of
the
term
"
transmission"
or
"
transmission
pipelines"
is
consistent
with
those
of
DOT.
I­
E1­
022
I­
E1­
027
I­
E1­
037
I­
E1­
040
I­
E1­
041
I­
E1­
043
I­
E1­
047
I­
E1­
057
I­
E1­
062
I­
E1­
064
Comment
Summary
48
We
believe
that
the
provision
of
the
Clean
Water
Act
adopted
in
1987
 
Section
402(
l)(
2)
 
excludes
uncontaminated
stormwater
from
oil
and
natural
gas
exploration
and
production
facilities
from
the
NPDES
permitting
process.
And,
since
the
municipal
and
industrial
storm
water
discharges
subsection
 
Section
402(
p)
 
is
directed
toward
permitting
of
storm
water
discharges,
it
does
not
override
this
exclusion.
During
the
two­
year
assessment
period
this
question
needs
to
be
fully
reexamined.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
026
I­
E1­
030
Comment
Summary
49
We
request
that
EPA
clarify
the
language
that
EPA
has
proposed
for
Section
122.26(
e)(
8)
to
make
clear
that
persons
constructing
oil
and
gas
facilities
are
not
required
to
apply
for
a
storm
water
permit
until
March
10,
2005.
Without
this
clarifying
change,
the
extension
that
the
proposed
rule
provides
will
have
little
if
any
impact
and
the
oil
and
gas
industry
will
be
required
to
comply
with
general
permit
requirements
and
file
thousands
of
NOIs
and
SWPPPs
unnecessarily.
EPA
Response:
EPA
believes
the
regulatory
language
as
proposed
is
sufficiently
clear.
Operators
of
small
construction
projects
described
in
the
new
§
122.26(
e)(
8)
will
not
need
permit
authorization
until
March
10,
2005.
I­
E1­
057
Comment
Summary
51
Under
the
Supplementary
Information
in
the
proposal,
examples
of
regulated
entities
include
'
construction
site
operators
associated
with
oil
and
gas
construction
projects.'
Questar
believes
that
this
statement
logically
covers
natural
gas
distribution
activities,
but
the
proposed
regulatory
language
excludes
only
'
small
construction
activity
as
oil
and
gas
exploration,
production,
processing
and
treatment
operations
or
transmission
facilities'
as
part
of
the
postponement.
If
the
omission
of
natural
gas
distribution
sites
was
an
oversight,
Questar
urges
the
Agency
to
include
them
in
the
final
document.
EPA
Response:
EPA
disagrees
with
the
commenters
assertion
that
natural
gas
distribution
sites
should
be
included
in
the
two
year
postponement.
The
preamble
distinguishes
between
transmission
facilities
(
that
are
included
in
the
postponement)
and
distribution
facilities
(
that
are
not
included).
I­
E1­
049
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
3
Comment
Summary
52
Prior
to
publication
of
notice
of
the
proposed
Fact
Sheet
and
CGP
and
the
proposed
deferral,
EPA
had
not,
in
any
rule
or
guidance
published
in
the
Federal
Register,
clearly
articulated
its
interpretation
that
construction
activities
at
oil
and
gas
operations
are
not
exempt
under
section
402(
1)(
2)
of
the
CWA.
It
had,
however,
stated
this
interpretation
in
an
internal
memorandum
in
1992
as
well
as
in
a
letter
to
an
oil
and
gas
industry
group
in
2001.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
028
Comment
Summary
53
EPA
should
note
that
it
does
not
need
to
resolve
the
statutory
interpretation
question
in
order
to
clarify
the
scope
of
its
proposed
two­
year
deadline
extension.
These
are
two
separate
questions:
(
1)
what
does
EPA
intend
to
include
in
the
two­
year
Phase
II
storm
water
permit
postponement;
and
(
2)
what
does
EPA
believe
Congress
intended
to
exempt
from
storm
water
regulation?
The
agency
should
clarify
now
that
natural
gas
distribution
projects
qualify
for
the
two­
year
postponement,
so
that
it
will
have
the
time
to
evaluate
the
second
question
­­
whether
such
projects
should
be
exempt.
EPA
can
take
action
on
the
first
question
to
postpone
the
deadline
for
distribution
based
on
sound
policy
grounds
and
on
the
ground
that
application
of
the
existing
Phase
II
rule
to
natural
gas
distribution
projects
is
not
supported
by
the
existing
rulemaking
record.
It
can
take
additional
time
to
resolve
the
second
question.
EPA
Response:
See
responses
from
Comment
Summaries
18
and
51.
I­
E1­
043
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
4
Topic:
Clarifications
­
General
Comment
Summary
54
As
the
transmission
segment
of
the
oil
and
gas
industry
implements
DOT
required
Pipeline
Integrity
Management
and
the
requirements
of
the
new
Pipeline
Safety
Act,
pipeline
associated
disturbances
are
likely
to
increase.
EPA
must
consider
these
additional
potential
sites
during
its
evaluation
of
impacts
of
Phase
II
rules.
EPA
Response:
During
its
analyses,
EPA
will
look
at
impacts
to
all
entities
affected
by
the
rule.
I­
E1­
067
Comment
Summary
55
We
also
request
EPA
to
clarify,
in
the
final
rule,
that
maintenance
to
existing
facilities
are
currently
considered
integral
to
industrial
activities
and
are
therefore
not
construction
activities.
As
industrial
activities
associated
with
the
oil
and
gas
industry,
they
are
excluded
from
the
NPDES
Storm
Water
permitting
requirements,
per
33
U.
S.
C.
§
1342(
l)(
2).
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
062
Comment
Summary
56
Kinder
Morgan
requests
clarification
regarding
whether
or
not
EPA
considered
a
different
standard
for
revegetation
or
for
closure
in
arid
or
semi­
arid
environments.
The
practicality
of
maintaining
compliance
in
semi­
arid
and
arid
environments
until
70%
revegetation
(
for
complete
stabilization)
is
a
serious
issue.
In
these
regions,
revegetation
cannot
occur
without
either
natural
precipitation
or
supplemental
watering.
It
frequently
is
not
practical
to
water
even
small
disturbances
because
of
remote
locations
or
water
supply
limitations.
For
example,
water
may
not
be
locally
available
and
trucking
in
water
is
expensive
and
can
cause
additional
damage,
including
damage
to
existing
vegetation.
With
limited
rainfall,
the
reestablishment
of
vegetation
is
difficult
to
achieve.
EPA
Response:
This
comment
relates
to
the
proposed
Construction
General
Permit
not
the
proposed
oil
and
gas
extension
rule,
and
will
be
addressed
in
the
responses
to
the
proposed
Construction
General
Permit
comments.
I­
E1­
067
Comment
Summary
57
Examples
of
terms
that
should
be
consistent
in
both
the
CGP
and
the
Fact
Sheet
are:°
Common
plan
of
development
(
site
over
¼
mile
apart
considered
as
separate
projects)
 
page
6°
Final
stabilization
(
semi­
permanent
erosion
control
practices
combined
with
seeds
is
final
stabilization)
 
page
46°
Construction
(
not
including
earth
disturbing
activities
that
are
part
of
day­
to­
day
operation)
 
page
42°
Post
construction
use
(
earth
disturbance
for
maintenance
and
day­
to­
day
operations
does
not
require
a
CGP)
 
page
46
EPA
Response:
This
comment
relates
to
the
proposed
Construction
General
Permit
not
the
proposed
oil
and
gas
extension
rule,
and
will
be
addressed
in
the
responses
to
the
proposed
Construction
General
Permit
comments.
I­
E1­
047
Comment
Summary
58
For
activities
that
do
not
meet
EPA's
narrow
definition
of
'
non
contiguous'
(
i.
e.,
are
less
than
one
quarter
mile
apart)
it
is
not
clear
whether
an
oil
and
gas
operator
is
supposed
to
total
all
of
the
'
land
disturbed',
regardless
of
whether
its
disturbed
'
at
the
same
time',
or
whether
the
operator
is
required
total
all
of
the
land
that
will
be
disturbed
over
the
entire
'
common
plan'
at
any
time.
EPA
Response:
See
the
"
common
plan"
section
of
the
preamble
to
this
rule.
I­
E1­
028
Comment
Summary
59
The
potential
for
delay,
loss
of
leases,
and
loss
of
reserves
created
by
leasing
problems
caused
by
the
definition
of
'
operator'
under
the
permit
have
not
been
considered.
EPA
should
clarify
that
surface
owners,
mineral
owners,
royalty
owners,
working
interest
owners,
oil
and
gas
lessees,
and
JOA
non­
operators
are
not
'
operators'
for
the
purposes
of
the
CGP.
Generally,
if
permit
coverage
is
required
at
all,
it
will
by
required
only
of
the
lease
or
JOA
operator
or
the
drilling
contractor
(
sometimes
hired
on
a
'
turnkey'
basis),
or
some
combination
of
these
two
entities
depending
on
the
specifics
of
the
contractual
relationship
between
them.
If
EPA
fails
to
clarify
the
'
operator'
role
for
oil
and
gas
operations
in
a
reasonable
way,
leasing
activities­
already
difficult­
will
be
further
complicated
by
misunderstandings
and
disputes
over
who
may
or
may
not
be
responsible
for
CGP
compliance.
EPA
Response:
EPA
will
continue
to
use
the
definition
of
operator
from
the
previous
Construction
General
Permit
of
2/
17/
98
for
the
time
being.
See
63
Federal
Register,
p.
7859.
EPA
may
revisit
this
issue
when
it
issues
the
new
CGP.
I­
E1­
028
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
5
Comment
Summary
60
Among
the
issues
that
must
be
considered
with
respect
to
oil
and
gas
activities
are:
1)
Does
EPA
have
the
legal
authority
under
section
402(
1)
to
exclude
clearing,
grading
and
excavating
at
oil
and
gas
activities
from
the
scope
of
the
oil
and
gas
exemption
or
to
limit
the
scope
of
the
exemption
for
clearing,
grading,
and
excavating
activities?
2)
If
EPA
has
the
authority
to
limit
the
scope
of
the
exemption
under
section
402(
1)(
2),
is
an
acreage
threshold
on
'
land
disturbed'
the
appropriate
limitation
to
place
on
the
scope
of
the
oil
and
gas
exemption?
3)
If
limitations
other
than
acreage
threshold(
s))
are
to
be
imposed
on
the
scope
of
the
oil
and
gas
exemption,
how
will
those
criteria
be
established
and
what
are
the
legal
and
scientific
justifications
for
them?
4)
If
an
acreage
threshold
based
on
'
land
disturbed'
or
'
area
under
construction
at
the
same
time'
is
to
be
imposed,
what
is
the
appropriate
size
of
the
threshold
(
s)
for
various
oil
and
gas
activities
and/
or
locations
and
what
is
the
scientific
basis
for
these
threshold(
s))?
5)
When
does
'
land
disturbance'
or
'
area
under
construction
at
the
same
time'
begin
and
end?
6)
What
clearing,
grading
and
excavating
activities
at
oil
and
gas
sites
should
be
included
or
excluded
from
the
acreage
threshold?
7)
If
an
acreage
threshold
is
to
b
measured
against
'
common
plan',
how
is
that
term
to
be
defined
for
non­
contiguous
oil
and
gas
activities?
8)
If
an
acreage
threshold
is
to
be
measured
against
a
'
common
plan',
how
is
that
term
to
be
defined
for
contingent
future
oil
and
gas
activities?
9)
What
are
the
economic
impacts
of
the
limitations,
if
any,
to
be
placed
on
the
scope
of
the
section
402(
1)(
2)
exemption
for
oil
and
gas
exploration,
production,
processing,
and
treatment
operations
and
transmission
facilities.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
18
and
the
"
common
plan"
section
of
the
preamble
to
the
Phase
II
Rule.
I­
E1­
028
Comment
Summary
61
We
would
suggest
that
EPA
codify
the
proposed
deferral
by
(
1)
revising
the
definition
of
'
storm
water
discharge
associated
with
small
construction
activity'
in
40
CFR
122.26(
b)(
15),
and
(
2)
revising
the
permit
approval
deadline
in
40
CFR
122.26(
e)(
8)
as
follows:
Section
40
CFR
122.26(
b)(
15):
(
i)
except
as
provided
in
subparagraph
(
ii),
construction
activities
including
clearing,
grading,
and
excavating
that
result
in
land
disturbance
of
equal
to
or
greater
than
one
acre
and
less
that
five
acres.
***.
(
A)
***
(
B)***
(
ii)
In
the
case
of
construction
activities
conducted
as
oil
and
gas
exploration,
production,
processing,
and
treatment
operations
or
transmission
facilities,
storm
water
discharge
associated
with
small
construction
activities
shall
only
include
those
activities,
as
defined
in
subparagraph
(
i),
that
occur
after
March
10,
2005.
(
iii)
Any
other
construction
activity
designated
by
the
Director
***.
Section
40
CFR
122.26(
e)(
8):
(
e)
application
deadlines.***
(
8)
For
any
storm
water
discharge
associated
with
small
construction
activity
identified
in
paragraph
(
b)(
15)(
i)
of
this
section,
see
122.2
(
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.
EPA
Response:
EPA
will
consider
changes
to
other
subsections
of
40
CFR
122.26
during
the
extension
provided
by
this
rule.
This
rule,
as
finalized,
meets
EPA's
goals
for
the
time
being.
I­
E1­
057
Comment
Summary
62
Clarifying
that
dispersed
projects
that
could
have
been
interpreted
as
"
common
plan
of
development"
should
be
considered
separate
projects
would
allow
projects
with
low
water
quality
impact
concerns
to
be
treated
in
a
less
burdensome
fashion.
EPA
Response:
Refer
to
the
"
common
plan"
section
of
the
preamble
to
the
Phase
II
Rule.
I­
E1­
047
Comment
Summary
63
In
addition,
clarifying
that
industrial
earth
disturbance
activities
(
e.
g.,
maintenance,
site
remediation,
and
demolition)
that
are
not
connected
with
the
construction
of
a
structure
do
not
need
a
CGP
will
reduce
unintended
burden
to
projects
that
cause
minimal
erosion/
sediment
concern.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
047
Comment
Summary
64
EPA
should
also
clarify
in
the
permit
that
replacement
of
existing
structures
with
the
same
structure
is
considered
a
maintenance
activity
if
no
new
land
is
disturbed
(
e.
g.,
replacement
of
a
six
inch
pipeline
with
a
similar
pipeline
in
the
original
construction
right­
of­
way)
EPA
Response:
This
action
does
not
otherwise
extend
or
reduce
the
scope
of
activities
requiring
NPDES
permit
coverage.
EPA
may
clarify
this
issue
when
it
finalizes
the
CGP.
I­
E1­
047
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
6
Comment
Summary
176
Instructing
all
state
and
federal
agencies
that
drill
site
and
lease
road
preparation
is
not
to
be
considered
'
construction,'
but
is
an
integral
part
of
the
exploration
and
production
phase
of
the
industry
is
also
needed.
EPA
Response:
See
response
to
Comment
Summary
18.
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
070
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
7
Topic:
Administrative
Procedure
Act
Comment
Summary
122
EPA
cannot
create
an
exemption
from
a
generally
applicable
regulatory
requirement,
such
as
requiring
permits
for
construction
activities
that
exceed
one
acre
in
size,
without
supporting
evidence.
To
do
so
would
be
arbitrary
and
capricious
and
violate
the
Administrative
Procedure
Act.
5
U.
S.
C.
§
706.
In
this
case,
EPA
lacks
such
evidence,
so
the
request
for
an
exemption
must
be
denied.
EPA
Response:
EPA
is
not
creating,
through
today's
action,
a
regulatory
exemption.
Rather,
EPA
is
merely
postponing
for
two
years
the
deadline
for
permit
coverage
for
a
segment
of
those
activities
described
in
40
CFR
§
122.26(
b)(
15).
One
of
the
principal
reasons
EPA
proposed
to
take
this
action
was
because
the
Agency
based
its
initial
decision
to
regulate
discharges
associated
with
small
construction
activity
on
information
that
pertained
to
residential,
commercial
and
other
types
of
industrial
construction.
However,
the
Agency
had
relatively
little
information
on
small
construction
activity
associated
with
the
oil
and
gas
industry
at
the
time
EPA
promulgated
the
March
10,
2003,
deadline
encompassing
small
construction
activity.
Accordingly,
EPA
had
assumed
that
relatively
few
small
construction
projects
associated
with
oil
and
gas
exploration,
production,
processing
and
treatment
operations
or
transmission
facilities
would
be
affected
by
that
rule.
Since
then,
EPA
came
to
understand
that
tens
of
thousands
of
sites
might
be
affected
by
this
rule
each
year.
Given
the
potential
magnitude
of
this
regulatory
impact,
EPA
thought
it
prudent
to
take
some
additional
time
to
evaluate
this
impact,
appropriate
BMPs
for
this
class
of
activities
and
the
scope
of
33
U.
S.
C.
§
1342(
l)(
2)."
I­
E1­
053
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
8
Topic:
State
Implementation
Comment
Summary
126
Second,
EPA
intent
with
regard
to
the
postponement
of
the
CGP
needs
to
be
clearly
communicated
both
to
all
the
EPA
regions
and
to
the
states
with
NPDES
authority
so
that
the
regulatory
process
is
both
certain
and
consistent.
Having
a
state
with
NPDES
authority
operating
differently
from
EPA
during
this
two
year
period
would
be
completely
counter
productive.
EPA
Response:
EPA
has
authorized
45
states
and
one
territory
to
administer
the
NPDES
program
in
lieu
of
EPA.
EPA
considers
publication
of
a
final
rule
in
the
Federal
Register
to
be
a
significant
step
in
communicating
the
postponement
of
permit
requirements
for
small
oil
and
gas
related
construction
activities
but
EPA
also
expects
to
conduct
other
types
of
outreach
activities
to
disseminate
this
information.
The
commenter
should
realize
that
states
have
the
authority
to
enact
state
laws
that
are
more
stringent
than
regulations
promulgated
by
EPA.
As
such,
certain
states
may
opt
to
require
permit
coverage
for
certain
activities
that
EPA
has
otherwise
postponed
applicable
Federal
requirements.
I­
E1­
026
I­
E1­
030
I­
E1­
048
Comment
Summary
127
AGA
requests
EPA
to
include
in
the
preamble
to
the
final
rule
a
clear
statement
that
strongly
encourages
states
to
postpone
the
application
of
their
own
storm
water
regulations
to
oil
and
natural
gas
activities
until
April
2005.
We
are
concerned
that
EPAs
action
may
be
rendered
moot
because
states
with
delegated
NPDES
authority
are
moving
forward
rapidly
to
adopt
construction
storm
water
permitting
regulations
in
2003,
based
on
the
Phase
II
rule
that
EPA
now
indicates
may
not
be
appropriate
for
oil
and
natural
gas
projects.
EPA
Response:
See
responses
for
Comment
Summaries
126
and
128.
I­
E1­
043
Comment
Summary
128
We
ask
EPA
to
encourage
states
to
follow
EPAs
ultimate
decision
regarding
whether
to
exempt
such
activities
from
storm
water
permit
regulations.
EPA
Response:
States
are
only
required
to
be
as
stringent
as
EPA.
It
is
their
decision
as
to
whether
to
provide
a
two­
year
postponement
for
small
oil
and
gas
construction,
as
EPA
is
doing.
EPA
believes
most
States
intend
to
follow
EPA
on
this
issue.
I­
E1­
043
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
9
Topic:
Environmental
Impacts
­
Focus
on
Metropolitan
Areas
Comment
Summary
121
The
Alliance
believes
that
EPA
should
take
into
consideration
that
most
oil
and
gas
drilling
operations
are
conducted
in
rural
areas,
outside
city
limits,
and
the
storm
water
regulations
require
facilities
discharging
storm
water
associated
with
'
industrial
activity'
to
apply
for
an
NPDES
permit.
 
Oil
and
gas
drilling
is
seldom
done
in
largely
populated
areas.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
023
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
10
Topic:
Environmental
Impacts
­
Lack
of
Benefits
Data
for
Phase
II
Comment
Summary
177
The
new
rules
will
have
little
to
no
affect
in
so
far
as
protecting
streams
from
erosion
or
minor
pollution.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
070
Comment
Summary
188
It
would
be
additional
regulations
that
in
my
opinion
would
be
a
burden
to
the
industry
with
very
little
or
no
real
impact
on
the
environments
in
question.
No
Industry
needs
to
spend
unwarranted
money
on
additional
regulations
that
will
not
help
the
environment
because
if
you
consider
only
just
the
additional
paper
resources
that
will
be
needed
for
these
plans
then
the
balance
of
leaving
the
regulations
as
they
have
been
FAR
outweighs
any
in
this
industry
and
puts
additional
needs
on
others
like
logging
and
the
paper
industry
EPA
Response:
See
response
to
Comment
Summary
6.
EPA
is
postponing
the
permit
deadline
for
certain
oil
and
gas
related
construction
activities
to
determine
the
appropriate
level
of
control
for
storm
water
discharges
from
these
activities.
At
that
time,
the
Agency
expects
to
determine
what
regulations,
or
other
controls
(
if
any),
are
necessary
to
adequately
protect
the
environment.
I­
E2­
001
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
11
Topic:
Environmental
Impacts
­
Lack
of
Data
on
Need
for
Regulation
of
Oil
and
Gas
Sites
Comment
Summary
106
The
requirements
for
Storm
Water
Pollution
Prevention
Plans
(
SWPPP)
add
new
requirements
that
provide
no
associated
environmental
benefits.
If
the
landowner
was
not
practicing
adequate
erosional
control
practices
on
their
land
prior
to
the
construction
of
the
temporary
drill
site,
attempting
to
manage
a
1
acre
site
in
the
middle
of
a
cultivated
field
or
pasture
consisting
of
anywhere
from
20
to
160
acres
would
be
fruitless.
Because
of
the
remoteness
of
oil
and
gas
exploration
activity,
the
storm
water
­
sediment
loads
would
be
impossible
to
detect
above
the
baseline
resulting
from
sediment
loads
from
the
surrounding
exempt
agricultural
activity.
This
is
the
reason
why
oil
and
gas
exploration
and
production
activity
was
originally
exempted
in
the
original
NPDES
rules.
The
reasons
for
the
exemption
haven't
changed.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
050
Comment
Summary
107
In
the
case
of
oil
and
natural
gas
exploration
and
production
facilities,
we
do
not
believe
that
EPA
made
a
reasonable
assessment
of
either
the
risk
or
the
burden.
Nowhere
in
the
information
that
we
reviewed
regarding
the
development
of
the
Phase
I
or
II
regulations
is
there
an
indication
of
significant
environmental
risks
associated
with
oil
and
natural
gas
exploration
and
production
facility
construction.
During
this
two­
year
period,
I
strongly
urge
EPA
to
consider
the
full
scope
of
the
exemption
in
Section
402(
1)(
2)
of
the
Clean
Water
Act;
to
determine
whether
or
not
there
are
notable
water
quality
impacts
from
oil
and
gas
construction
activities
of
all
sizes
and
the
extent
of
any
such
impacts.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
022
I­
E1­
026
I­
E1­
030
I­
E1­
035
I­
E1­
039
I­
E1­
048
I­
E1­
070
Comment
Summary
108
We
are
unaware
of
any
negative
environmental
impact
from
storm
water
associated
with
oil
and
gas
activity.
We
feel
certain
that
if
the
current
level
of
drilling
activity
presented
storm
water
runoff
problems
during
construction,
they
would
be
well
documented
and
extremely
well
covered
by
the
mainstream
media!
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
026
I­
E1­
030
I­
E1­
065
Comment
Summary
109
There
is
a
lack
of
data
that
identifies
the
contribution
the
rules
will
have
to
the
improvement
to
human
health
and
the
environment.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
035
Comment
Summary
110
Imposing
such
permit
requirements
on
construction
activities
of
oil
and
gas
exploration,
drilling
and
production
activities
offers
no
environmental
protection
beyond
that
already
provided
under
current
regulations
at
the
state
level.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
051
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
12
Topic:
Environmental
Impacts
­
Oil
and
Gas
Sites
Contribute
Sediment
to
Streams
Comment
Summary
112
If
you
would
see
the
amount
of
sediment
washing
into
high
quality
trout
streams
from
their
well
pads
and
roads,
you
would
not
propose
exempting
the
industry
from
meeting
storm
water
management
requirements
for
two
more
years.
Instead,
you
would
be
requiring
immediate
implementation
of
the
most
stringent
storm
water
management
possible.
They
are
literally
thousands
of
wells
on
the
ANF,
and
nearly
all
of
them
contribute
sediment
to
the
high
quality
trout
streams
that
are
found
on
the
ANF.
I
have
electrofished
some
of
these
streams
and
in
some,
sediment
has
obliterated
the
gravel/
rubble
substrate.
EPA
Response:
See
response
for
Comment
Summary
65.
EPA
acknowledges
that
erosion
and
sedimentation
from
oil
and
gas
construction
activities
may
cause
water
quality
impacts.
EPA
intends
to
spend
the
next
2
years
fully
exploring
all
facets
of
this
issue.
I­
E1­
055
Comment
Summary
113
Previous
studies
by
EPA
and
others
have
found
small
construction
activities
are
significantly
degrading
and
must
be
controlled
to
protect
our
watersheds.
EPA
Response:
See
response
for
Comment
Summary
112.
I­
E1­
054
Comment
Summary
114
Please
do
your
job
and
do
not
allow
oil
and
gas
interests
to
pollute
our
streams.
Uphold
the
Clean
Water
Act.
EPA
Response:
See
response
for
Comment
Summary
65.
I­
E1­
004
Comment
Summary
115
Exempting
the
oil
and
gas
industry
from
permitting
requirements
for
discharge
of
uncontaminated
sediment
may
contribute
significantly
to
nonpoint
source
pollution.
Sedimentation
­
or
nonpoint
source
pollution
­
is
one
of
our
biggest
water
pollution
problems
and
exempting
an
entire
industry
from
the
law
would
only
exacerbate
this
problem.
EPA
Response:
See
response
for
Comment
Summary
112.
I­
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002
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E1­
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054
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Comment
Summary
117
Past
coal
mining
activities
have
significantly
degraded
thousands
of
miles
of
streams,
wetlands,
creeks
and
a
major
river,
the
Susquehanna.
Too
much
has
already
been
lost.
To
increase
the
losses
by
exempting
one
major
industry
is
unconscionable.
EPA
Response:
See
response
for
Comment
Summary
112.
I­
E1­
025
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
13
Comment
Summary
118
The
permit
requirement
is
necessary
because
Oil
and
Gas
well
drilling
is
a
point
source
pollution.
The
industry
has
not
learned
how
to
manage
site
construction,
road
construction,
or
pipeline
construction
without
causing
accelerated
soil
erosion
and
sedimentation.
The
Industry
cares
only
about
the
bottom
line.
Best
management
practices
are
not
utilized
because
industry
is
not
required
to
utilize
them.
The
result
is
accelerated
soil
erosion
and
sedimentation.
EPA
Response:
See
response
for
Comment
Summary
65.
I­
E1­
001
Comment
Summary
119
The
oil
and
gas
industry
has
been
responsible
for
an
enormous
amount
of
ground
and
surface
water
pollution.
EPA
Response:
See
response
for
Comment
Summary
112.
I­
E1­
010
Comment
Summary
174
It
is
also
well
documented
that
oil
and
gas
construction
activities,
which
do
not
utilize
appropriate
storm
water
management
practices,
can
have
detrimental
impacts
to
water
quality.
Although
many
oil
and
gas
construction
operations/
projects
may
be
of
short
duration,
they
have
a
high
potential
to
emit
various
harmful
pollutants.
These
include,
but
are
not
limited
to
sediment,
debris,
petroleum
hydrocarbons,
drilling
compounds,
and
other
construction
related
materials 
EPA
Response:
EPA
acknowledges
the
commenters
assertion
regarding
potential
detrimental
impacts
to
water
quality
from
oil
and
gas
construction
activities.
The
Agency
plans
to
evaluate
these
and
other
claims
to
determine
the
appropriate
level
of
control
for
these
sources.
As
described
elsewhere,
EPA
received
information
subsequent
to
promulgation
of
the
Phase
II
rule
indicating
that
a
much
larger
number
of
these
sites
would
be
covered
by
the
Phase
II
regulations
than
had
been
envisioned
by
EPA.
As
such,
EPA
is
postponing
the
permit
deadline
for
two
years
for
the
activities
described
in
the
new
40
CFR
122.26(
e)(
8)
to
provide
the
Agency
with
ample
time
to
evaluate
the
industry
in
more
detail.
I­
E2­
004
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
14
Topic:
Environmental
Impacts
­
Attainment
of
Water
Quality
Standards
Comment
Summary
98
There
would
be
no
benefit
to
the
environment
as
a
result
of
the
implementation
of
the
NPDES
permit
requirements
because
the
construction
standards
and
procedures
currently
in
effect
would
not
change.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
068
Comment
Summary
99
It
has
already
been
identified,
in
past
rule
makings
and
pursuant
to
section
1342(
p)(
6)
of
the
Clean
Water
Act,
that
small
construction
activities
(
those
that
disturb
1­
5
acres)
significantly
contribute
to
water
quality
degradation.
As
such,
the
CWA
dictates
that
EPA
must
'
establish
expeditious
deadlines'
for
implementing
a
regulatory
program
for
these
discharges.
EPA
Response:
See
response
for
Comment
Summary
65.
At
this
time,
EPA
believes
that
two
years
is
a
reasonable
amount
of
time
to
evaluate
impacts
by
the
activities
covered
by
40
CFR
122.26(
e)(
8),
the
impact
of
regulation
on
those
activities,
and
the
scope
of
CWA
§
402(
l)(
2).
I­
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002
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005
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006
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007
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009
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012
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I­
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018
I­
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019
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020
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021
I­
E1­
025
I­
E1­
037
Comment
Summary
100
EPA
should
not
even
be
proposing
this
rule,
as
it
is
clearly
contrary
to
your
duty
to
protect
the
Nation's
water
quality.
EPA
Response:
See
response
for
Comment
Summary
65.
I­
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002
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003
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018
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021
I­
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025
Comment
Summary
101
Due
to
the
extremely
disruptive
nature
of
oil
and
gas
development
and
the
track
record
of
these
developers
to
control
accelerated
erosion
and
sediment
pollution,
a
special
exemption
from
the
NPDES
Permit
Requirements
should
not
be
enacted.
EPA
Response:
See
response
for
Comment
Summary
65.
I­
E1­
016
I­
E1­
017
I­
E1­
025
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
15
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
16
Comment
Summary
102
During
this
two­
year
period,
I
strongly
urge
EPA
to
consider
the
full
scope
of
the
exemption
in
Section
402(
1)(
2)
of
the
Clean
Water
Act:
to
study
the
best
management
practices
commonly
used
by
the
oil
and
gas
industry
to
minimize
impacts
from
oil
and
gas
sites;
to
develop
a
more
appropriate
model
for
oil
and
gas
activities,
as
well
as
water
quality
impacts.
EPA
Response:
EPA
concurs
with
this
comment,
and
fully
intends
to
spend
the
next
two
years
fully
exploring
all
facets
of
this
issue.
I­
E1­
039
Comment
Summary
103
The
Environmental
Protection
Agency
was
founded
to
protect
the
environment.
At
one
time
it
did.
Now
it
is
an
agency
that
has
lost
its
way.
It
doesn't
care
about
environmental
protection,
but
it
carries
favor
from
the
Oil
and
Gas
Industry
because
there's
one
Oil
and
Gas
proponent
in
the
White
House.
This
is
not
environmental
protection;
this
is
a
scandal.
 
Remember
the
Environmental
Protection
Agency
exists
to
protect
the
environment.
EPA
Response:
The
U.
S.
Environmental
Protection
Agency
strives
to
implement
programs
based
on
legislation
enacted
by
the
U.
S.
Congress,
and
according
to
congressional
intent
where
such
intent
has
been
expressed.
There
are
often
different
interpretations
of
statutory
language.
This
may
be
one
of
those
situations.
EPA
intends
to
spend
the
next
2
years
carefully
evaluating
all
aspects
of
this
decision,
and
hopes
to
make
a
decision
that
is
fair,
reasonable
and
protective
of
the
environment.
I­
E1­
001
Comment
Summary
104
We
already
prepare
and
implement
Erosion
and
Sedimentation
Plans
for
the
drilling
of
our
wells.
We
adhere
by
our
plans
because
it
is
in
our
best
interest
to
keep
our
rig
road
and
well
locations
as
dry
as
possible
during
wet
weather
to
minimize
costs
associated
with
operating
heavy
equipment
in
muddy
conditions.
It
only
takes
three
or
four
days
to
drill
a
well
and,
weather
permitting,
our
roads
and
locations
are
recontoured
close
to
the
original
topography,
then
re­
seeded,
within
several
months,
or
as
soon
as
the
appropriate
equipment
can
be
scheduled
to
do
so.
For
all
these
reasons,
I
can't
imagine
that
an
additional
permitting
burden
will
provide
any
incremental
environmental
benefit.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
031
Comment
Summary
105
Our
wells
are
shallow,
not
deeper
than
4,000
feet,
and
generally
take
about
4
days
to
drill
and
an
additional
week
is
required
to
complete
and
recover
the
well
site
to
original
contour.
This
is
a
relatively
short
period
of
time
for
a
fairly
small
footprint
of
a
well
site
generally
less
than
one
acre
in
size
to
be
exposed
to
potential
storm
water
influx.
Should
such
occur,
our
drilling
plans
include
procedure
to
mitigate
the
impact
of
such
flows.
Most
of
the
wells
are
in
rural
areas
and
not
infrequently
in
areas
previously
strip
mined.
The
impact
of
the
environment
is
minimal
but
it
does
provide
landowners
with
another
source
of
income
as
well
as
a
source
of
natural
gas
for
household
use.
Our
activity
is
regulated
and
monitored
by
the
PA
Dept.
of
Environmental
Protection
including
a
soil
and
erosion
plan
submitted
prior
to
each
moving.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.

Comment
Summary
173
Many
of
the
30,000
sites
mentioned
in
the
proposed
rule
may
be
located
in
remote
areas
that
are
in,
or
close
proximity
to,
sensitive
natural
resources,
such
as
pristine
water
bodies
and
wetlands.
If
excluded
from
Phase
II,
these
remote
sites
would
have
no
other
management
measures
in
place
(
such
as
those
that
might
occur
in
more
urbanized
areas) 
EPA
Response:
EPA
acknowledges
the
commenters
statement
that
some
of
the
sites
included
in
the
two
year
postponement
may
not
have
management
measures
in
place
to
control
storm
water
discharges.
While
this
may
be
true,
this
is
also
consistent
with
conditions
that
existed
prior
to
the
Phase
II
rule.
While
the
Phase
II
rule
attempted
to
identify
these
issues,
the
Agency
admits
that
small
oil
and
gas
related
construction
activity
was
to
some
extent
overlooked
when
estimating
the
impacts
of
this
rule.
EPA
anticipates
that
any
necessary
changes
to
the
requirements
for
small
oil
and
gas
related
construction
activities
may
address
the
concerns
raised
by
the
commenter
and
be
consistent
with
Congress'
intent
for
excluding
certain
oil
and
gas
related
activities.
I­
E2­
004
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
17
Topic:
Postponement
Should
Include
Sites
Over
5
Acres
Comment
Summary
148
We
urge
the
EPA
to
review
the
applicability
of
the
Phase
I
rule,
governing
the
permitting
of
storm
water
discharges
from
oil
and
gas
construction
sites
disturbing
greater
than
five
acres.
If
EPA
determines
that
the
scope
and
effect
of
the
exemption
of
33
U.
S.
C.
§
1342(
l)(
2)
is
to
exclude
construction
activities
at
sites
disturbing
one
to
five
acres,
the
same
exemption
would
apply
to
construction
sites
disturbing
more
than
five
acres.
We
feel
that
construction
activities
at
oil
and
gas
sites
are
covered
by
the
storm
water
permitting
exemption
are
extended
to
oil
and
gas
operations
found
in
40
CFR
122.26
(
c)(
iii)
and
USC
402(
l)(
2),
regardless
of
size.
EPA
Response:
See
responses
to
Comment
Summaries
18.
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E1­
062
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064
Comment
Summary
149
We
also
believe
that
no
legal
or
practical
rationale
exists
for
excluding
from
the
deferral
oil
and
gas
construction
activity
that
disturbs
more
than
five
acres
of
land;
this
activity
is
integral
to
oil
and
gas
production.
NPDES
storm
water
permitting
for
all
oil
and
gas
construction
activity
should
be
deferred
pending
the
proposed
review
of
best
practices
and
reevaluation
of
the
scope
and
effect
of
the
oil
and
gas
activity
storm
water
permitting
exemption,
40
CFR
122.26
(
c)
(
iii)
and
USC
402(
l)(
2).
...
We
recommend
that
EPA
modify
40
CFR
§
122.26
as
necessary
to
clearly
incorporate
a
two­
year
deferral
of
all
oil
and
gas
activity
storm
water
construction
permitting.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
040
Comment
Summary
150
The
postponement
should
also
apply
to
the
enforcement
of
applicable
Phase
I
construction
activity
until
the
U.
S.
EPA
has
reevaluated
the
scope
of
33
U.
S.
C.
1342
(
1)(
2)
and
other
storm
water
provisions
of
the
Clean
Water
Act.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
050
Comment
Summary
151
EPA
should
also
postpone
the
permit
authorization
deadline
for
oil
and
gas
construction
activities
greater
than
five
acres
until
the
reevaluation
of
the
scope
and
effect
of
the
exemption
is
completed.
Neither
regulators
nor
operators
should
be
placed
in
the
uncertain
position
of
facing
a
greater
regulatory
burden
largely
based
on
the
calculation
of
the
size
of
a
facility
while
the
entire
regulatory
structure
is
being
reassessed.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
030
I­
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035
I­
E1­
037
I­
E1­
047
I­
E1­
048
Comment
Summary
152
TIPRO
urges
EPA
to
expand
the
deferral
to
include
oil
and
gas
activities
that
disturb
more
than
five
acres
of
land
area
because
(
A)
The
oil
and
gas
exemption
under
section
402(
1)(
2)
is
not
limited
by
land
area
disturbed
and
(
B)
The
legal
and
scientific
issues
for
more
than
five
acre
oil
and
gas
activities
are
intertwined
with
the
issues
for
less
than
five
acre
oil
and
gas
activities,
such
that
these
issues
cannot
rationally
be
considered
separately.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
18.
I­
E1­
028
Comment
Summary
153
By
not
including
oil
and
gas
construction
activities
over
five
acres
in
the
two­
year
delay,
EPA
has
effectively
imposed
a
fiveacre
threshold
for
the
oil
and
gas
exemption
under
CWA
section
402(
1)(
2).
An
acreage
threshold
for
the
availability
of
the
oil
and
gas
exemption
is
neither
legally
nor
scientifically
justifiable 
This
delay
is
necessary
to
review
and
resolve
all
the
legal
and
technical
issues
relating
to
regulating
contaminated
storm
water
discharges
from
oil
and
gas
construction
activities.
EPA
Response:
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
18
See
responses
to
Comment
Summaries
6
and
18.
I­
E1­
027
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
19
Comment
Summary
154
In
enacting
Section
402(
1)(
2)
of
the
Clean
Water
Act,
Congress
made
no
mention
of
tract
size,
much
less
a
distinction
between
tracts
of
less
than
five
acres
and
those
of
greater
than
five
acres.
Furthermore,
because
construction
of
the
roads
and
drill
sites
are
an
inherent
part
of
oil
and
gas
activities,
Congress
clearly
intended
to
include
such
construction
activities
in
the
exemption
from
storm
water
regulation
under
the
Clean
Water
Act.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
18.
I­
E1­
039
Comment
Summary
155
We
do
not
believe
that
the
1992
Natural
Resources
Defense
Council
v.
Environmental
Protection
Agency
(
NRDC
v
EPA)
case
compels
the
current
EPA
treatment
of
oil
and
natural
gas
exploration
and
production
facilities.
While
the
court
required
EPA
to
reconsider
its
action
on
construction
activities,
it
did
not
require
that
all
construction
activities
below
five
acres
be
regulated.
Rather,
it
required
EPA
to
justify
its
actions
whatever
they
may
be.
We
would
suggest
that
even
if
EPA
determined
that
some
construction
activities
needed
to
be
permitted
from
one
to
five
acres,
it
was
not
compelled
to
require
all
construction
activities
to
be
permitted.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
026
I­
E1­
030
I­
E1­
048
Comment
Summary
156
EPA's
deferral
should
include
sites
that
are
regulated
under
Phase
I
because
they
disturb
five
or
more
acres
and
sites
that
are
part
of
common
plan
of
development
that
does
so,
in
order
to
allow
an
opportunity
to
consider
the
definition
of
`
common
plan'
during
the
deferral.
EPA
Response:
See
response
to
Comment
Summary
6.
See
also
the
"
common
plan"
discussion
in
the
preamble
to
this
rule.
I­
E1­
026
I­
E1­
041
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
20
Topic:
Postponement
Should
Include
Additional
Groups
(
pipelines,
gathering
lines,
etc.)

Comment
Summary
129
We
are
in
accord
with
IOGA­
PA,
that
provisions
of
the
Clear
Water
Act
of
1987
§
402
(
1)(
2)
excludes
uncontaminated
storm
water
from
oil
and
natural
gas
production
facilities
from
the
NPDES
permitting.
EPA
Response:
See
response
for
Comment
Summary
18.
I­
E1­
068
Comment
Summary
130
We
continue
to
believe
that
construction
of
roads,
equipment
pads
and
gathering
lines
are
an
integral
part
of
exploration
and
production
activity
and
as
such,
they
should
be
considered
'
included'
in
the
exemption
from
storm
water
permitting
extended
to
oil
and
gas
operations
found
in
40
CFR
122.26
(
c)
(
iii).
EPA
Response:
See
response
for
Comment
Summary
18.
I­
E1­
064
Comment
Summary
131
As
the
transmission
segment
of
the
oil
and
gas
industry
implements
Department
of
Transportation
required
Integrity
Management
and
the
requirements
of
the
new
Pipeline
Safety
Act,
pipeline
associated
disturbances
are
likely
to
increase.
ATINGP
urges
EPA
to
consider
these
additional
potential
sites
during
its
evaluation
of
impacts
of
the
Phase
II
rules
on
the
oil
and
gas
industry
during
the
next
two
years.
EPA
Response:
EPA
acknowledges
the
commenters
concern
that
the
requirements
of
the
new
Pipeline
Safety
Act
may
increase
the
actual
number
of
ground
disturbances
related
to
the
transmission
of
oil
and
gas.
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
062
Comment
Summary
132
In
the
preamble
to
the
Phase
I
rules,
EPA
uses
SIC
Code
13
to
define
the
oil
and
gas
operations
that
are
subject
to
the
storm
water
permitting
exemption
under
Section
402(
l)(
2).
55
Fed.
Reg.
47990,
48031
(
Nov.
16,
1990).
The
descriptions
of
the
activities
covered
by
SIC
Code
13
include
construction
activities
associated
with
oil
and
gas
operations,
such
as
excavating,
grading,
building,
erecting,
and
repairing.
Therefore,
by
EPA's
own
definition
of
oil
and
gas
operations,
oil
and
gas
construction
activities
should
be
exempt
from
NPDES
permitting
requirements.
EPA
Response:
See
response
for
Comment
Summary
18.
I­
E1­
061
Comment
Summary
133
We
propose
that
EPA
include
the
drilling
of
stratigraphic,
geothermal,
and
solution
mining
wells
in
the
two
year
postponement.
These
wells
disturb
the
same
amount
of
land,
use
the
same
drilling
rigs
as
oil
and
gas
wells
and
would
also
be
subject
to
the
increased
compliance
costs
associated
with
Phase
II
implementation.
EPA
Response:
EPA
disagrees
with
the
commenters
assertion
that
the
drilling
of
stratigraphic,
geothermal,
and
solution
mining
wells
are
also
worthy
of
an
extension.
In
the
past
year,
EPA
has
dealt
with
oil
and
gas
representatives
regarding
the
potential
impacts
of
the
small
construction
requirements
on
their
segment
of
the
industry.
EPA
has
not
received
any
such
information
indicating
that
the
aforementioned
mining
activities
carry
similar
economic
concerns
or
that
the
Economic
Analysis
performed
as
part
of
the
Phase
II
Rule
development
may
have
inadequately
addressed
those
industrial
activities.
I­
E1­
060
Comment
Summary
134
We
ask
that
EPA
expand
the
proposed
rule's
energy
related
extension
to
the
underground
electric
transmission
and
distribution
construction
projects.
These
construction
projects
involve
the
same
construction
techniques
as
those
used
for
oil
and
gas,
often
use
the
same
trench
as
the
gas
facilities,
and
pose
very
low
potential
for
adverse
impacts
to
surface
waters.
EPA
Response:
EPA
disagrees
with
the
commenters
assertion
that
the
electric
transmission
and
distribution
projects
should
receive
the
same
extension
as
oil
and
gas
related
projects.
In
the
past
year,
EPA
has
dealt
with
oil
and
gas
representatives
regarding
the
potential
impacts
of
the
small
construction
requirements
on
their
segment
of
the
industry.
EPA
has
not
received
any
such
information
indicating
that
electricity
transmission
and
distribution
have
similar
economic
concerns
or
that
the
Economic
Analysis
performed
as
part
of
the
Phase
II
Rule
development
may
have
inadequately
addressed
the
electric
transmission
and
distribution
industry.
I­
E1­
057
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
21
Comment
Summary
136
We
believe
that
EPA
lacks
legislative
authority
to
require
storm
water
discharge
permits
for
construction
activities
associated
with
oil
and
gas
exploration,
drilling
and
production.
We
believe
that
the
provision
of
the
Clean
Water
Act
adopted
in
1987
 
Section
402(
l)(
2)
 
excludes
uncontaminated
storm
water
from
oil
and
natural
as
exploration
and
production
facilities
from
the
NPDES
permitting
process.
It
is
inconceivable
that
Congress
intended
to
separate
construction
activity
of
well
sites
and
facilities
from
E&
P
operations.
During
the
two­
year
assessment
period,
EPA
must
carefully
examine
this
issue.
EPA
Response:
See
response
for
Comment
Summary
18.
I­
E1­
051
Comment
Summary
137
It
makes
little
sense,
in
terms
of
energy
policy,
to
postpone
the
rule
for
exploration
and
production
functions,
natural
gas
processing
and
the
transportation
functions
without
postponing
application
of
the
rule
to
the
delivery
of
natural
gas
to
the
actual
customer.
In
terms
of
the
number
of
sites
affected,
many
distribution
system
projects
will
fall
in
the
one
to
five
acre
category.
Nationwide,
the
number
of
distribution
sites
could
approach
the
30,000
sites
estimated
for
the
rest
of
the
industry.
EPA
Response:
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.
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,
are
not
included
in
the
terms
described
in
today's
rule
as
potentially
eligible
for
the
two
year
postponement.
I­
E1­
049
Comment
Summary
138
EPA
excludes
SIC
Code
1321
for
gas
plants
and
SIC
codes
46
and
49
associated
with
pipelines
that
are
also
not
under
the
authority
of
the
OK
DEQ.
These
SIC
codes
should
be
added.
EPA
Response:
EPA
did
not
propose
to
take
any
action
with
respect
to
this
regulatory
provision,
and
sought
no
comment
on
it.
This
comment
is
not
relevant
to
today's
action.
I­
E1­
047
Comment
Summary
139
Clearing
grading
and
excavating
activities
associated
with
the
preparation
of
pads,
roads,
pits,
and
facilities
are
an
inherent
part
of
oil
and
gas
operations.
If
clearing,
grading,
and
excavating
activities
at
oil
and
gas
operations
are
not
exempt
from
regulation
under
section
402(
1)(
2),
then
no
oil
and
gas
operations
would
ever
be
entirely
exempt
from
storm
water
regulation
under
section
402(
1)(
2),
and
the
exemption
would
be
rendered
superfluous
or
insignificant.
EPA
Response:
See
response
for
Comment
Summary
18.
I­
E1­
028
Comment
Summary
140
EPA
should
suspend
its
1992
and
2001
guidance
stating
that
clearing,
grading,
and
excavating
activities
at
oil
and
gas
sites
are
not
exempt
under
section
402(
1)(
2),
pending
consideration
during
the
deferral
period
of
the
scope
and
effect
of
section
402(
1)(
2).
EPA
Response:
See
response
for
Comment
Summary
18.
I­
E1­
028
Comment
Summary
141
Marathon
believes
that
land
clearing,
grading
and
excavating
associated
with
the
preparation
of
roads,
pads,
pits,
gathering
lines,
flowlines
and
other
exploration,
production,
processing,
or
treatment
operations
and
transmission
facilities
are
an
integral
part
of
oil
and
gas
operations.
As
such,
uncontaminated
storm
water
discharges
from
land
clearing,
grading
and
excavating
associated
with
oil
and
gas
operations
are
exempt
from
the
NPDES
storm
water
regulation
under
the
Clean
Water
Act
(
CWA)
section
402(
1)(
2).
Marathon
believes
this
exemption
applies
to
all
oil
and
gas
land­
disturbing
activities,
regardless
of
the
acreage
involved
(
either
greater
than
five
acres,
or
between
one
to
five
acres).
EPA
Response:
See
response
for
Comment
Summary
18.
I­
E1­
027
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
22
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
23
Comment
Summary
142
We
believe
that
' 
production,
processing,
or
treatment
operations,
or
transmission '
includes
flowlines,
gathering
lines
and
small
transmission
lines,
and
should
be
included
in
the
proposed
action.
These
types
of
lines
are
an
integral
part
of
the
production,
processing,
treatment,
and
transmission
process.
We
request
EPA
clarify
that
these
types
of
lines
are
included
in
the
proposed
action
to
delay
the
permit
deadline
for
small
construction
activities.
EPA
Response:
See
response
to
Comment
Summary
137.
I­
E1­
022
Comment
Summary
143
In
the
event
EPA
proceeds
with
the
proposed
deferral
of
small
oil
and
gas
construction
activity
only,
we
recommend
that
EPA
revise
the
definition
of
"
storm
water
discharge
associated
with
small
construction
activity"
in
22.26(
b)(
15),
as
follows:
(
i)
Except
as
provided
in
subparagraph
(
ii),
construction
activities
including
clearing,
grading,
and
excavating
that
result
in
land
disturbance
of
equal
to
or
greater
than
one
acre
and
less
than
five
acres.
*
*
*(
A)
*
*
*
(
B)
*
*
*(
ii)
In
the
case
of
construction
activities
conducted
at
oil
and
gas
and
related
facilities,
small
construction
activities
shall
only
include
those
activities,
as
defined
in
subparagraph
(
i),
that
occur
after
March
10,
2005.
(
iii)
Any
other
construction
activity
designated
by
the
Director
*
EPA
Response:
EPA
disagrees
with
the
commenters
recommendation
to
modify
122.26(
b)(
15).
However,
EPA
is
postponing
the
permit
authorization
date,
as
detailed
in
122.26(
e)(
8),
until
March
2005.
As
such,
the
final
rule
includes
a
revision
to
122.26(
e)(
8).
See
response
to
Comment
Summary
61.
I­
E1­
040
Comment
Summary
144
Further,
API
believes
that
`
processing,
treatment
and
transmission'
includes
gathering
lines
and
flowlines
that
transport
crude
oil
and
natural
gas
between
the
wellhead
and
processing
plants.
EPA
should
more
clearly
define
that
crude
and
natural
gas
transmission
lines,
as
well
as
refined
petroleum
product
and
chemical
delivery
lines
from
refineries
and
chemical
plants
are
included
in
this
exemption.
Therefore,
EPA
should
clarify
that
construction
activities
on
all
transmission
(
i.
e.
pipeline)
activities
are
also
included
in
the
two­
year
delay
and
associated
study.
EPA
Response:
See
response
to
Comment
Summary
137.
I­
E1­
041
Comment
Summary
145
We
believe
EPA
intended
to
extend
the
permit
deadline
for
natural
gas
distribution,
but
simply
failed
to
say
so
explicitly.
However,
if
EPA
intended
to
exclude
distribution,
AGA
urges
EPA
to
reconsider.
It
would
make
no
sense
to
omit
local
natural
gas
distribution.
EPA
clearly
needs
to
gather
and
evaluate
additional
information
about
all
types
of
natural
gas
transportation
systems
­­
including
local
distribution
as
well
as
pipelines.
EPA
Response:
See
response
to
Comment
Summary
137.
I­
E1­
043
Comment
Summary
146
There
is
no
definition
of
`
transmission'
in
the
Clean
Water
Act,
and
we
have
found
no
legislative
history
explaining
what
Congress
meant
by
the
term
`
transmission'
in
section
402(
1)(
2).
Accordingly,
EPA
has
discretion
to
interpret
the
meaning
of
this
ambiguous
statutory
term.
See
Chevron
v.
NRDC,
467
U.
S.
837,
843
(
1984);
Barnhart
v.
Walfon,
535
US.
212,
21
7
(
2002)
(
a
reasonable
agency
interpretation
of
an
ambiguous
statutory
term
is
entitled
to
Chevron
deference).
A
logical
and
reasonable
interpretation
is
that
the
word
`
transmission'
in
this
context
includes
natural
gas
pipeline
and
distribution
lines
that
transmit
or
transport
natural
gas.
We
see
no
logical,
legal
or
policy
reason
to
exempt
linear
pipeline
projects
from
storm
water
regulation,
but
not
their
smaller
cousins,
the
linear
distribution
line
projects.
EPA
Response:
See
response
to
Comment
Summary
137.
I­
E1­
043
Comment
Summary
147
The
realization
that
the
construction
of
flow
lies,
gathering
lines,
crude
oil
lines,
natural
gas
lines,
and
waterlines
are
all
a
part
of
the
everyday
normal
oil
and
gas
exploration
and
production
operations
and
that
they
are
vital
to
and
necessary
in
order
to
further
develop,
produce,
sell
and
transport
these
resources
and
products.
EPA
Response:
EPA
agrees
with
the
commenters
interpretation
that
flow
lines,
gathering
lines,
crude
oil
lines,
natural
gas
lines,
and
water
lines
are
all
part
of
everyday
normal
oil
and
gas
exploration
and
production
operations
and
as
such
are
included
in
the
2
year
postponement.
I­
E1­
035
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
24
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
25
Topic:
Burden
­
Economic
Analysis
on
Effects
of
Phase
II
Rule
Comment
Summary
2
Under
Executive
Order
12866,
(
58
FR51735,
Oct.
4,
1993),
EPA
must
determine
whether
the
regulatory
action
is
"
significant"
and,
therefore,
subject
to
OMB
review
if
the
annual
effect
on
the
economy
is
$
100
million
or
more.
The
annual
cost
to
the
oil
and
gas
industry
will
easily
exceed
$
100
million
and
will
likely
be
several
times
greater,
which
is
not
in
accordance
with
Executive
Order
12866.
EPA
Response:
EPA
disagrees
with
the
commenters
assertion
that
this
rule
will
easily
exceed
$
100
million
and
thus,
is
not
in
accordance
with
Executive
Order
12866.
This
rule,
promulgated
herein,
is
solely
postponing
the
permit
deadline
for
small
oil
and
gas
construction
activities.
If,
two
years
from
now,
EPA
determines
that
certain
additional
storm
water
controls
are
necessary
for
small
oil
and
gas
related
construction
activities,
and
those
activities
have
an
annual
effect
on
the
economy
of
$
100
million
or
more,
EPA
plans
to
provide
for
OMB
review.
I­
E1­
023
I­
E1­
035
I­
E1­
057
Comment
Summary
3
EPA
incorrectly
stated
that
only
a
few
oil
and
gas
drilling
sites
actually
disturb
more
than
one
acre
of
land.
Virtually
all
sites
are
larger
than
one
acre,
but
smaller
than
five
acres.
Therefore,
all
future
drilling
locations
would
be
subject
to
the
storm
water
regulations.
In
the
EPA
cost
analysis
of
the
Phase
II
program,
it
estimated
that
the
number
of
construction
starts
would
be
approximately
130,000
units.
But,
none
of
these
units
were
oil
and
gas
facilities.
Oil
and
gas
facilities
alone
would
increase
the
number
of
units
by
25
percent
with
a
third
of
that
total
coming
from
the
two
states
of
Texas
and
Oklahoma
where
EPA
Region
6
must
handle
the
administrative
burdens.
The
ultimate
effect
of
this
could
be
staggering.
EPA
Response:
EPA
acknowledges
that
a
far
greater
number
of
small
oil
and
gas
related
construction
activities
will
be
impacted
by
the
Phase
II
rule
than
had
been
estimated
during
the
rulemaking
process.
Specifically
to
address
this
concern,
EPA
has
postponed
the
permit
deadline
for
these
facilities
for
two
years
to
allow
EPA
to
better
analyze
storm
water
control
from
this
sector.
I­
E1­
023
I­
E1­
026
I­
E1­
030
Comment
Summary
4
We
think
it
is
an
appropriate
action
to
postpone
the
permit
deadline
to
further
evaluate
and
resolve
the
various
issues
including
the
lack
of
an
economic
impact
analysis
of
the
Phase
II
rules
on
oil
and
gas
industry,
the
impact
on
the
national
economy,
and
small
businesses.
Consideration
of
any
additional
regulation
must
be
based
on
studies
designed
to
determine
whether
or
not
such
regulation
is
warranted
from
a
technical,
practical,
and
economic
basis.
EPA
Response:
EPA
acknowledges
the
commenters
statement
and
is
postponing
the
permit
deadline
for
those
small
construction
activities
associated
with
oil
and
gas
activities
described
in
the
new
40
CFR
122.26(
e)(
8).
I­
E1­
022
I­
E1­
035
I­
E1­
039
Comment
Summary
5
EPA
assumed
that
the
Phase
II
rule
would
affect
few
if
any
oil
and
gas
facilities,
and
therefore
EPA
did
not
include
oil
and
gas
exploration
sites
in
the
Economic
Analysis
of
the
Phase
II
rule.
The
notice
states
that
EPA
recently
learned
from
the
Department
of
Energy
that
there
are
30,000
oil
and
gas
starts
per
year,
most
of
which
affect
more
than
one
acre.
AGA
would
like
to
draw
EPAs
attention
to
a
similar
lack
of
information
about
natural
gas
pipeline
and
distribution
projects
in
the
Phase
II
Economic
Analysis.
EPA
may
have
also
assumed
that
few
of
these
projects
would
be
affected,
but
in
fact
we
estimate
that
our
190
members
will
have
a
total
of
about
20,000­
30,000
small
pipeline
and
distribution
projects
per
year
that
will
affect
between
one
and
five
acres.
EPA
Response:
As
part
of
the
Phase
II
rulemaking,
the
Agency
evaluated
many
facets
of
construction
and
construction­
related
activity
associated
with
residential
and
commercial
building,
including
utility
line
construction.
Small
construction
associated
with
natural
gas
distribution
lines
was
evaluated
during
Phase
II
rulemaking,
with
costs
of
such
included
in
the
Phase
II
Economic
Analysis.
I­
E1­
043
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
26
Comment
Summary
27
In
2000,
a
total
of
31,732
exploratory
and
production
wells
were
drilled
 
over
10,000
in
Texas
and
Oklahoma.
To
meet
future
natural
gas
demand,
the
National
Petroleum
Council
estimates
that
the
number
of
natural
gas
wells
alone
needs
to
increase
to
approximately
48,000
wells
annually.
EPA
Response:
EPA
acknowledges
the
commenters
estimation
of
the
number
of
wells
drilled
in
2000
and
future
wells.
EPA
will
evaluate
data
such
as
that
provided
by
the
commenter
when
evaluating
the
impact
of
the
permitting
requirements
on
small
oil
and
gas
related
construction
activities.
I­
E1­
026
I­
E1­
030
I­
E1­
048
Comment
Summary
71
EPA
has
stated
in
the
Proposed
Rule
that
it
had
assumed
earlier
in
the
Phase
II
development
process
that
few,
if
any,
oil
and
gas
sites
would
be
affected
by
the
Phase
II
rules.
According
to
the
West
Virginia
Department
of
Environmental
Protection's
Annual
Report
for
FY
2001­
2002,
the
annual
average
of
new
oil
and
gas
wells
that
have
been
drilled
in
West
Virginia
during
the
past
three
years
is
885.
IOGA­
WV
believes
that
most,
if
not
all,
of
the
new
drilling
sites
in
West
Virginia
will
exceed
the
threshold
level
of
one
acre,
especially
once
the
area
used
to
construct
an
access
road
is
considered.
As
a
result,
the
Phase
II
regulations
will
impact
a
significant
number
of
oil
and
gas
sites
in
this
state.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
061
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
27
Topic:
Burden
­
Permit
Unnecessary
(
cause
financial
harm/
burden)

Comment
Summary
31
In
New
York
State
the
program
proposes
to
extend
the
'
regulated
MS4
status
to
every
MS4
in
the
State
and
to
require
a
public
hearing
provision
for
every
permit
over
which
the
MS4
has
jurisdiction.
This
includes
all
Phase
II
permits
that
would
be
issued
by
the
State
Department
of
Environmental
Conservation
(
DEC).
Thus
a
General
Permit
as
envisioned
by
EPA,
which
normally
would
not
require
a
costly
and
dilatory
public
hearing
process,
will
become
a
General
Permit
for
which
public
hearings
must
be
provided.
EPA
Response:
Today's
action
has
no
bearing
on
how
an
authorized
State
administers
a
general
permit.
I­
E1­
052
Comment
Summary
32
Both
LMOGA
and
LIOGA
strongly
urge
the
EPA
to
act
quickly
on
this
issue.
The
Louisiana
Department
of
Environmental
Quality
(
LDEQ)
has
EPA
primacy
for
this
activity
in
Louisiana
and
adopted
their
permit
on
October
4,
2003.
The
LDEQ
permit
is
effective
on
March
1,2003.
The
LDEQ
has
indicated
that
it
is
willing
to
grant
a
similar
compliance
extension
for
oil
and
gas
facilities
in
Louisiana
once
a
final
EPA
action
is
taken.
It
is
therefore
imperative
for
the
EPA
proposed
extension
to
have
a
practical
effect
in
Louisiana
that
a
final
EPA
action
be
adopted
and
communicated
to
the
LDEQ
well
before
March
1,2003
to
allow
the
LDEQ
to
take
similar
appropriate
action.
EPA
Response:
Acknowledged.
I­
E1­
036
Comment
Summary
33
Independents
have
had
their
staffs
cut
to
the
bone.
There
is
no
fat
left
to
cut.
Staff
members
are
doing
the
jobs
of
two
or
three
staff
members
20
years
ago.
Independents
do
not
have
specialists
that
know
the
`
ins
and
outs'
of
acquiring
a
federal
permit,
especially
when
they
require
endangered
species
and
archeological
inspections.
They
will
have
to
hire
a
consultant.
The
Alliance
estimates
that
it
could
take
up
to
six
months
to
obtain
a
federal
drilling
permit
if
we
have
to
get
the
U.
S.
Fish
and
Wildlife
Department
to
conduct
their
endangered
species
survey
and
hire
an
archeologist
to
perform
his
study.
The
Fish
and
Wildlife
Department
is
not
adequately
staffed
to
handle
the
increase
in
permits,
and
archeologists
will
not
let
non­
archeologists
use
their
libraries.
Many
smaller
companies
will
find
the
new
procedures
too
frustrating
and
time
consuming
and
just
not
drill
many
of
the
wells
they
had
planned.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
182.
I­
E1­
023
Comment
Summary
34
EPA
did
not
address
the
potential
for
redundant,
and
potentially
conflicting,
regulation.
EPA
must
evaluate
current
requirements
applicable
to
transmission/
pipelines
under
other
regulatory
programs.
Some
of
these
requirements
are:
Pipelines
in
wetlands
or
at
river
crossings
must
comply
with
Corps
of
Engineer
nationwide
permits,
or
obtain
an
individual
permit,
which
do
not
allow
for
pollution
of
water
bodies;
pipeline
activities
subject
to
Federal
Energy
Regulatory
Commission
(
FERC)
permitting
are
required
to
comply
with
FERC's
'
Upland
Erosion
Control,
Revegetation
and
Maintenance
Plan'
and
'
Wetland
and
Water
body
Construction
&
Mitigation
Procedures.'
EPA
Response:
See
responses
to
Comment
Summaries
6
and
182.
Obtaining
coverage
under
a
CWA
§
404
permit
issued
by
the
Corps
of
Engineers
is
sufficient
such
that
a
separate
NPDES
storm
water
permit
is
not
required
(
unless
there
is
also
a
discharge
from
at
least
one
acre
of
non­
wetland
earth
not
otherwise
addressed
by
the
§
404
permit).
I­
E1­
067
Comment
Summary
36
Coverage
of
storm
water
discharges
under
the
Phase
II
regulations
is
unnecessary
to
assure
protection
of
the
environment
since
site
preparation
activities
at
oil
and
gas
sites
in
West
Virginia,
and
we
believe
in
most
other
states,
are
already
regulated
for
this
purpose.
Control
of
storm
water
discharges
from
oil
and
gas
drilling
sites
in
West
Virginia
is
currently
covered
by
a
permit
required
prior
to
beginning
preparation
of
a
site
and
is
issued
by
the
West
Virginia
Office
of
Oil
and
Gas
(
OOG).
See
W.
Va.
Code
§
22­
6­
6(
a)(
quoted
above).
This
process
has
been
effective
in
the
past
to
assure
protection
of
the
environment
in
a
manner
that
does
not
unduly
burden
the
business
of
oil
and
gas
development.
...[
EPA]
will
find
that
the
appropriate
controls
necessary
to
address
storm
water
discharges
from
oil
and
gas
sites
undergoing
construction
activity
in
West
Virginia
are
already
covered
by
the
permit
issued
by
the
OOG.
Before
a
permit
is
issued
allowing
a
well
to
be
drilled,
an
Erosion
and
Sediment
Control
Plan
which
meets
the
requirements
of
the
W.
Va.
Erosion
and
Sediment
Control
Field
Manual
prepared
by
the
OOG
must
be
submitted
to
and
approved
by
the
OOG.
See
W.
Va.
Code
§
22­
6­
6(
d).
Further,
the
BMPs
identified
by
the
W.
Va.
Erosion
and
Sediment
Control
Field
Manual,
in
contrast
to
those
that
may
be
used
in
the
general
construction
industry,
are
specific
to
oil
and
gas
operations.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
182.
I­
E1­
061
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
28
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
29
Comment
Summary
39
The
earth
disturbance
features
of
these
projects
are
already
adequately
regulated
by
State
agencies
where
they
occur.
Unlike
the
construction
industry,
which
may
not
be
regulated
at
the
State
level,
all
facets
of
the
oil
and
gas
industry
are
already
abundantly
regulated
by
state
&
federal
agencies.
To
impose
another
layer
of
regulation
by
enacting
Phase
I
and
Phase
II
of
the
NPDES
on
activities
such
as
described
is
not
only
unnecessary
but
counter
productive
to
the
oil
and
gas
industry
and
those
it
serves.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
182.
I­
E1­
046
I­
E1­
052
Comment
Summary
42
Oversight
and
protections
are
already
in
place
due
to
the
fact
that
each
and
every
oil
and
gas
well
site
in
New
York
is
inspected
by
our
staff
prior
to
the
issuance
of
a
well
drilling
permit.
Staff
review
the
conditions
present
at
the
site,
assess
erosion
and
sedimentation
control
issues
and
impose
special
permit
conditions
which
may
require
the
use
of
best
management
practices
to
address
site
specific
concerns.
All
well
sites
must
be
reclaimed
using
seed
and
mulch,
and
in
some
cases,
the
planting
of
trees
and
shrubs
may
be
required.
EPA
Response:
See
responses
to
Comment
Summaries
6,
31
and
182.
I­
E1­
060
Comment
Summary
43
Drilling
and
Workover
Permits
required
by
the
various
states
also
require
the
use
of
BMPs
for
erosion
and
sediment
controls.
The
proposed
requirement
to
obtain
a
Storm
water
Permit
for
Oil
and
Gas
Construction
Activities
is
only
a
duplication
of
permitting
and
doubling
of
the
permitting
fees
and
permit
approval
periods.
CNR
will
incur
excessive
costs
due
to
the
additional
permit
fees
imposed
by
the
States
and
an
undetermined
cost
of
waiting
for
additional
State
approvals
(
15
to
60
days)
of
the
Storm
water
Permits.
These
additional
permit
fees
(
averaging
$
300
for
each
one
to
three
acre
project)
are
expected
to
exceed
$
150,000
per
year
for
CNR
alone.
CNR
firmly
believes
that
the
additional,
duplicative
Storm
water
Permitting
for
Oil
and
Gas
Construction
Activities
is
unnecessary,
not
beneficial
to
the
environment
and
will
cost
CNR
precious
resources
that
it
could
have
used
to
benefit
the
Company
and
the
environment.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
182.
I­
E1­
059
Comment
Summary
44
In
California
alone,
there
are
thousands
of
small
natural
gas
transportation
and
distribution
construction
projects
annually.
Many
of
these
projects
occur
in
paved
areas,
with
a
short
construction
duration
and
reduced
exposure
to
disturbed
soil
and
therefore
present
extremely
low
potential
for
adverse
impacts
to
surface
waters
from
their
storm
water
runoff.
The
Best
Management
Practices
already
in
use
and
appropriate
for
these
construction
projects
effectively
protect
surface
waters.
The
extension
proposed
would
provide
time
for
EPA
to
review
these
practices.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
182.
I­
E1­
057
Comment
Summary
45
There
are
reclamation
standards
in
Ohio
enforced
by
the
Department
of
Natural
Resources,
Division
of
Mineral
Resources
Management,
designed
to
quickly
re­
seed
and
re­
sod
impacted
areas
to
prevent
erosion
and
runoff
affects.
Accordingly,
the
Association
believes
that
the
need
to
expand
the
NPDES
permitting
program
to
include
oil
and
gas
operations,
including
any
claimed,
additional
benefits
that
such
a
program
would
offer
to
the
environment,
must
be
reviewed
and
weighed
against
the
costs
as
required
under
federal
law.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
182.
I­
E1­
042
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
30
Comment
Summary
46
When
calculating
the
economic
impact
of
proposed
federal
programs,
we
do
not
believe
EPA
has
taken
into
account
how
these
programs
will
fit
into
delegated­
State
programs
and
the
costs
thereby
entailed.
In
Pennsylvania,
for
instance,
what
EPA
envisioned
as
a
low­
economic
impact
Storm
Water
Management
General
Permit,
became,
during
Phase
I,
a
required
individual
Permit
on
many
of
the
Commonwealth's
watersheds.
Acquiring
these
Individual
Permits
has
been
very
time­
consuming
and
expensive
due
to
the
public
hearing
and
appeal
process
attached
to
the
Individual
Permit
Application
process.
PGE
can
offer
documentation
that
these
permit
applications
often
take
up
to
eight
(
8)
months
to
get
approval
often
for
a
few
wells
which
individually
will
involve
1/
3rd
to
½
acre
disturbance
with
20
or
more
acres
of
undisturbed
area
between
them.
EPA
Response:
See
response
to
Comment
Summary
6.
Authorized
States
implement
the
NPDES
program
as
they
see
fit.
There
is
no
Federal
mandate
to
use
individual
permits.
They
are
usually
employed
when
the
Permitting
Authority
believes
a
general
permit
is
not
protective
enough
of
water
quality.
I­
E1­
052
Comment
Summary
70
Indeed
the
oil
and
gas
industry
is
subject
to
the
following
regulatory
programs
regardless
of
the
applicability
of
the
NPDES
storm
water
program:
*
Construction
of
pipelines
in
wetlands
or
at
river
crossings
must
comply
with
Corps
of
Engineer
nationwide
permits,
or
obtain
an
individual
permit,
which
protect
waterbodies
from
pollution;
and
*
For
those
pipeline
activities
subject
to
FERC
permitting,
FERC
requires
compliance
with
its
'
Upland
Erosion
Control,
Revegetation
and
Maintenance
Plan'
and
'
Wetland
and
Waterbody
Construction
&
Mitigation
Procedures.
ATINGP
urges
the
EPA
during
this
two­
year
period
of
review
to
evaluate
these
and
any
other
regulatory
programs
applicable
to
transmission
and
pipeline
activities
in
order
to
avoid
redundant
regulation.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
062
Comment
Summary
72
It
has
been
ABARTA's
experience
that
the
Best
Management
Practices
demanded
by
Pennsylvania's
Erosion
and
Sedimentation
Control
requirements
meet
or
exceed
current
Federal
regulations.
EPA
Response:
Authorized
State
NPDES
programs
can
be
more
stringent
than
EPA's.
See
responses
to
Comment
Summaries
6,
31
and
182.
I­
E1­
034
Comment
Summary
171
[
A]
Policy
Clarification
Memorandum
issued
from
the
U.
S.
Department
of
Commerce,
NOAA,
and
USEPA
discusses
an
overlap
of
the
Coastal
Nonpoint
Source
Programs
with
phases
I
and
II
of
the
SW
regulations.
This
memorandum
identifies
ten
management
measures
specified
in
the
NPS
program
guidance
that
overlap
with
NPDES
SW
requirements.
Among
these
ten
are
two
that
directly
relate
to
the
construction
of
oil
and
gas
operations.
They
are
(
1)
Construction
Site
Erosion
and
Sediment
Control,
and
(
2)
Construction
Site
Sediment
Control
Due
to
this
overlap,
the
NPS
source
program
has
not
addressed
these
activities
with
the
understanding
that
they
would
be
adequately
addressed
under
the
NPDES
SW
program.
In
its
policy
Clarification
Memorandum,
NOAA
and
USEPA
state
that
because
of
the
overlap
coastal
NPS
source
programs
are
no
longer
required
to
include
construction
site
erosion
and
sediment
control
management
or
construction
site
chemical
control.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E2­
004
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
31
Topic:
Burden
­
Impact
on
Domestic
Energy
Development
Comment
Summary
28
If
the
oil
and
gas
industry
was
subject
to
the
NPDES
permitting
process,
permitting
delays
would
deter
and
delay
the
development
of
domestic
oil
and
natural
gas
resources.
This
delay
would
be
a
disincentive
to
energy
production
at
a
time
when
creating
such
disincentives
would
appear
to
be
contrary
to
national
energy
policy.
It
is
estimated
that
in
the
first
year
U.
S.
oil
production
would
decline
by
1,169,688
barrels
per
day
and
natural
gas
production
would
drop
by
15,773,600
mcf
per
day.
It
is
estimated
that
the
effect
on
U.
S.
drilling
will
be
$
8
billion
annually
and
$
90
billion
on
lost
revenue
from
domestic
oil
and
gas
that
would
not
be
produced
because
of
the
lack
of
drilling.
The
United
States
economy
would
lose
about
$
25
billion
in
oil
production,
which
would
have
to
be
replaced
with
foreign
oil,
and
$
65
billion
in
natural
gas
production.
We
projected
that
the
federal
government
would
lose
about
$
7,458,754,000
during
the
first
year
just
from
the
revenue
not
generated
from
the
drop
in
production
of
oil
and
natural
gas.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
9.
I­
E1­
023
I­
E1­
026
I­
E1­
030
I­
E1­
038
I­
E1­
039
I­
E1­
042
I­
E1­
048
I­
E1­
051
I­
E1­
061
I­
E1­
066
I­
E1­
068
I­
E1­
069
I­
E1­
070
Comment
Summary
29
An
issue
to
address
is
the
realization
of
the
negative
impact
on
oil
&
gas
operations
and
its
impediment
of
vital
domestic
energy
development
and
thus
negatively
impacting
our
national
security.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
9.
I­
E1­
035
I­
E1­
070
Comment
Summary
30
As
time
passes,
oil
and
gas
production
would
continue
its
rapid
decline
at
a
more
rapid
pace.
Imports
would
increase,
and
the
citizens
of
the
United
States
would
have
less
control
of
our
energy
and
economic
future.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
9.
I­
E1­
023
Comment
Summary
175
Keeping
all
of
the
exploration
and
production
exemptions
in
place
is
a
must
unless
this
Administration
is
willing
to
tell
this
industry,
and
the
American
public
we
do
not
need
additional
oil
and
gas
from
domestic
sources.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
070
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
32
Topic:
Burden
­
General
Comment
Summary
6
If
the
oil
and
gas
industry
was
subject
to
the
NPDES
permitting
process
the
cost
of
drilling
oil
and
natural
gas
wells
would
increase
markedly.
EPA
Response:
EPA
recognizes
the
concerns
expressed
by
those
in
the
construction
and
oil
and
gas
industries
that
NPDES
permitting
requirements
may
impose
burdens
on
them.
To
the
extent
that
these
concerns
are
related
to
construction
that
will
disturb
at
least
five
acres
of
total
land
area,
or
will
disturb
less
than
five
acres
but
is
part
of
a
common
plan
of
development
that
will
ultimately
disturb
five
acres
or
more,
this
action
has
no
impact
on
any
requirements
that
might
impose
burdens.
EPA
did
not
propose
to
take
any
action
with
respect
to
such
"
large"
construction
activity,
and
did
not
seek
comment
on
any
such
action.
EPA
declines
to
respond
to
comments
relating
to
such
activity.
To
the
extent
that
these
concerns
are
related
to
small
construction
activity
as
described
in
40
CFR
§
122.26(
b)(
15),
this
action
merely
postpones
the
deadline
for
permit
coverage
for
certain
operators.
This
action
does
not
create
any
additional
burdens.
The
potential
impact
of
compliance
with
the
CGP
on
activities
described
in
the
new
40
CFR
§
122.26(
e)(
8)
will
be
the
subject
of
analysis
to
be
conducted
during
the
two
year
stay
of
the
Phase
II
rule's
applicability.
The
Agency
will
not
make
conclusions
regarding
impacts
until
such
analysis
has
been
performed.
In
addition,
to
further
ease
any
potential
burdens
on
oil
and
gas
operators,
EPA
intends
to
identify
appropriate
best
management
practices
specific
to
oil
and
gas
exploration,
production,
processing
or
treatment
operations,
or
transmission
facilities
during
the
2
year
permitting
stay.
I­
E1­
038
I­
E1­
066
I­
E1­
068
I­
E1­
070
I­
E2­
001
Comment
Summary
7
In
its
decision
to
propose
a
delay,
it
is
obvious
that
EPA
misjudged
the
impact
and
burden
of
imposing
Phase
II
requirements
resulting
in
unnecessary
costs
and
delays.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
026
I­
E1­
030
Comment
Summary
8
My
company
is
not
in
a
position
to
deal
with
the
extra
costs
and
burdens
associated
with
additional
storm
water
permitting
associated
with
drilling
my
wells.
EPA
Response:
See
response
to
Comment
Summary
6.
The
Agency
notes
that
economic
impacts
on
small
businesses
are
always
a
factor
on
whether
its
rules
are
promulgated,
and
will
likewise
be
for
this
rule.
I­
E1­
031
Comment
Summary
9
The
impact
of
imposing
such
permit
requirements
will
serve
only
to
delay
drilling
and
drive
up
energy
costs,
and
exacerbate
an
already
tenuous
domestic
energy
supply
situation.
EPA
Response:
See
response
to
Comment
Summary
6.
EPA
notes
the
objective
of
the
NPDES
permitting
program
is
to
protect
and
improve
water
quality
in
waters
of
the
US.
There
are
many
economic
and
health
benefits
associated
with
clean
water
and
that
all
stakeholders
must
share
the
burden
of
protecting
our
nation's
surface
waters.
I­
E1­
051
Comment
Summary
10
Under
the
new
Phase
II
rules,
eighty
to
eighty
five
percent
of
the
wells
drilled
in
New
York
would
require
a
storm
water
discharge
permit.
None
of
the
oil
and
gas
wells
drilled
annually
in
New
York
disturb
five
acres
or
more
but
the
vast
majority
of
new
wells
in
our
state
would
exceed
the
one
acre
threshold.
EPA
Response:
EPA
acknowledges
many
oil
and
gas
exploration
sites
will
be
between
one
and
five
acres.
I­
E1­
060
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
33
Comment
Summary
11
Few,
if
any,
of
the
operators
have
staff
qualified
to
develop
storm
water
pollution
prevention
plans.
Any
work
associated
with
the
development
of
these
plans
would
have
to
be
contracted
out
to
consultants.
The
costs
to
complete
this
work
are
new
expenses,
which
have
not
previously
incurred.
Consulting
costs
for
T&
E
inspections:
$
500
per
well;
Hiring
contractor
to
conduct
maintenance
and
inspections
until
70%
revegetation:
$
450/
day,
and
assuming
one
inspection
every
two
weeks,
not
including
inspections
after
major
rain
events:
$
11,700
per
well
per
year.
EPA
Response:
See
response
to
Comment
Summary
6.
Prevention
of
erosion
and
sediment
is
a
skill
that
should
be
familiar
to
any
construction
operator.
EPA
notes
that
the
construction
operator,
not
the
oil
and
gas
well
drilling
/
extraction
activity
operator,
is
the
logical
choice
for
being
the
permittee,
just
as
the
builder
of
a
chemical
factory
is
the
operator
(
for
permitting
purposes)
during
the
construction
phase,
not
the
operator
of
the
plant
once
manufacturing
begins.
I­
E1­
023
I­
E1­
044
I­
E1­
060
Comment
Summary
12
The
requirements
for
Storm
Water
Pollution
Prevention
Plans
(
SWPPP)
add
many
new
requirements
that
significantly
increase
the
paper
and
cost
burden
of
compliance
without
associated
environmental
benefit.
These
requirements
have
also
introduced
delays
into
a
time
sensitive
process.
Some
of
these
requirements
are:
defining
a
licensed
engineer
as
an
example
of
'
qualified
personnel'
for
Best
Management
Practices
(
BMP)
inspections
infers
a
level
of
expertise
that
is
unnecessary
for
this
permit.
EPA
Response:
See
response
to
Comment
Summary
6.
The
proposed
permit
defines
qualified
personnel
as
"
a
person
knowledgeable
in
the
principles
and
practice
of
erosion
and
sediment
controls."
While
a
licensed
engineer
is
provided
as
an
example
of
such,
it
is
not
meant
to
be
exclusive
of
others.
I­
E1­
034
I­
E1­
047
I­
E1­
052
Comment
Summary
13
The
requirement
to
obtain
permit
coverage
creates
the
potential
for
delay
in
drill
rig
scheduling,
loss
of
leases,
and
loss
of
reserves,
the
impacts
of
which
have
not
been
considered.
If
made
broadly
applicable
to
oil
and
gas
development
through
the
CGP,
these
requirements
have
the
potential
to
be
used
to
delay
or
defeat
exploration
and
production
of
oil
and
gas
leases
on
private
lands,
thereby
causing
the
leases
to
be
lost,
along
with
recovery
of
U.
S.
oil
and
gas
reserves.
EPA
Response:
See
response
to
Comment
Summary
6.
While
today's
action
does
nothing
to
affect
the
processes
for
challenging
an
NPDES
permit,
challenges
cannot
be
used
arbitrarily
to
delay
or
defeat
eligible
projects
from
occurring.
I­
E1­
026
I­
E1­
028
I­
E1­
070
Comment
Summary
14
In
addition,
surface
owners,
opposed
to
oil
and
gas
activities
on
land
where
the
mineral
interest
is
owned
by
another
person
may
try
to
use
these
requirements
to
delay
or
defeat
oil
and
gas
projects.
EPA
Response:
See
response
to
Comment
Summary
13.
I­
E1­
028
Comment
Summary
15
There
is
little
gain
from
these
changes
and
much
to
lose
in
the
way
of
added
costs
and
regulatory
burden.
Most
drilling
contractors
told
us
that
90%
of
the
wells
drilled
in
2001
would
not
be
drilled
if
they
had
to
comply
with
the
massive
paperwork
requirements
mandated
under
the
storm
water
regulations.
In
an
effort
to
be
conservative,
we
reduced
that
to
a
70%
reduction
in
drilling
for
independents
and
40%
for
major
oil
companies.
Of
the
38,527
wells
drilled
in
2001,
25,034
would
not
be
drilled
in
future
years.
The
impact
to
the
drilling
industry
would
be
devastating!
We
estimate
that
$
8,053,100,000
would
not
be
spent
on
drilling
activities
that
were
spent
in
2001.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
023
I­
E1­
070
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
34
Comment
Summary
16
Stroud
[
oil
company]
plans
to
drill
22
wells
in
2003.
Implementing
the
requirement
for
operators
to
obtain
NPDES
permits
for
activities
disturbing
over
one
acre
would
require
Stroud
to
obtain
coverage
under
the
general
permit
for
every
well
it
drills,
as
all
drilling
locations,
including
access
roads,
are
greater
than
one
acre
in
disturbance.
Estimated
additional
costs
of
complying
with
the
NPDES
Phase
II
requirements
are
as
follows:
Erosion
control
measures
for
drilling
operations:
$
5000
per
well.
Using
the
above
numbers
for
a
22
well
per
year
drilling
program
will
cost
Stroud
$
17,200
per
well,
for
an
additional
$
378,400
annually
to
comply
with
the
Phase
II
regulations.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
044
Comment
Summary
17
There
would
be
a
dampening
of
economic
activity
vital
to
state
and
federal
coffers.
States
that
have
oil
and
gas
production
taxes
would
feel
the
decline.
The
State
of
Texas
 
which
is
projecting
a
$
10
billion
shortage
this
year
without
considering
this
dramatic
drop
in
drilling
and
production
 
would
have
oil
and
gas
severance
taxes
decline
$
327,308,708
during
the
first
year.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
023
I­
E1­
070
Comment
Summary
18
During
this
two­
year
period,
I
strongly
urge
EPA
to
consider
the
full
scope
of
the
exemption
in
Section
402(
1)(
2)
of
the
Clean
Water
Act
to
develop
a
more
appropriate
model
for
oil
and
gas
activities
with
respect
to
economic
and
legal
impacts.
EPA
Response:
EPA
intends
to
evaluate
the
scope
of
§
402(
l)(
2)
over
the
next
2
years.
I­
E1­
039
Comment
Summary
19
Shallow
oil
wells
in
the
Northwest
region
of
the
Commonwealth
are
currently
being
aggregated
into
the
Phase
I
over
five
acre
permitting
process
even
though
the
individual
well
sites
do
not
even
reach
the
one
acre
Phase
II
threshold.
Wells
in
this
region
have
gone
from
having
a
permitting
process
which
takes
from
30­
45
days
to
becoming
a
paperwork
marathon
of
regulatory
hoops
and
public
hearings
lasting
from
as
long
as
180
days,
and
in
one
case
over
a
full
calendar
year!
EPA
Response:
See
the
"
common
plan"
section
of
the
preamble
to
this
rule.
Pennsylvania
is
authorized
to
administer
the
NPDES
program,
thus
EPA
cannot
comment
on
the
permitting
process
employed
there,
including
the
Commonwealth's
interpretation
of
common
plan
of
development
or
sale.
I­
E1­
030
Comment
Summary
20
We
feel
the
postponement
is
necessary
due
to
the
realization
of
the
overwhelming
number
of
oil
&
gas
drilling
sites
(
approximately
30,000)
that
would
be
affected
on
a
yearly
basis
by
the
Phase
II
rules.
The
shear
number
of
permits
that
EPA
estimated
during
the
regulatory
development
process
was
significantly
understated.
EPA
Response:
See
response
to
Comment
Summary
3.
I­
E1­
030
I­
E1­
035
Comment
Summary
22
The
Phase
II
rules
would
add
an
additional
time­
consuming
layer
of
regulation
to
a
developer's
attempt
to
get
a
well
in
while
the
rig
or
other
equipment
is
available.
This
additional
delay
would
negatively
affect
an
oil
and
gas
developer's
business
decisions.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
061
Comment
Summary
25
The
economic
impact
to
the
oil
and
gas
industry,
especially
the
small
operator,
must
be
considered
prior
to
implementation.
Stroud
Oil
Company
makes
every
effort
to
conduct
all
its
operations
in
an
environmentally
sound
manner,
and
feels
that
additional
restrictions
will
only
lead
to
additional
costs
without
the
incremental
benefit
to
the
environment.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
044
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
35
Comment
Summary
26
Expanding
the
NPDES
permitting
program
to
include
oil
and
gas
operations
impacting
one
to
five
acres
of
land
­
and
in
some
cases
even
less
than
one
acre
­
would,
at
best,
significantly
impede,
and
at
worst,
have
a
devastating
impact
on,
oil
and
gas
production
in
the
region.
Not
only
would
it
delay
operations
for
months,
but
it
would
significantly
increase
the
costs
for
operators,
especially
for
the
small
operators
who
do
not
have
the
necessary
regulatory
expertise
and
who
will
therefore
be
required
to
hire
outside
consultants.
That
will,
without
question,
have
a
significant
impact
on
Ohio's
oil
and
gas
industry.
EPA
Response:
See
responses
to
Comment
Summaries
6,
9
and
11.
I­
E1­
042
Comment
Summary
180
No
state
has
the
manpower
or
budget
flexibility
to
efficiently
and
economically
implement
and
enforce
the
proposed
changes.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
070
Comment
Summary
181
This
[
uncertainty
and
fear
of
litigation]
has
a
negative
revenue
impact
on
not
only
operators,
but
also
service
providers,
county
and
state
governments,
and
the
teacher's
retirement
fund.
This
will
probably
result
in
economic
losses
to
many
communities
and
states,
plus
a
drastic
increase
in
unemployment.
EPA
Response:
See
response
to
Comment
Summary
13.
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
070
Comment
Summary
182
As
we
understand,
the
proposed
changes,
at
least
four,
and
quite
possibly
more,
state
agencies
will
be
drawn
into
the
permitting
process.
These
agencies
are
already
short
of
staff
and
budgets
are
very
tight.
There
will
be
no
new
hires
to
assume
the
increased
load 
The
Scenic
River
Commission
will
need
to
insure
that
no
proposed
site
will
affect
a
scenic
river
within
the
state.
They
have
one
person
on
staff
to
do
this.
The
Oklahoma
Archeology
Survey
has
two
field
people,
but
we
will
be
required
to
use
an
outside
archeologist
for
any
survey
and
they
are
few
and
far
between.
Presently,
these
outside
archeologists
are
running
90
days
or
more
behind
schedule.
This
change
in
the
regulations
will
extend
their
lead­
time
to
well
over
six
months
or
more
behind
schedule.
The
Oklahoma
Historical
Society
has
but
two
people.
The
Fish
and
Wildlife
staff
is
limited
also 
The
investigators
will
not
be
able
to
do
timely
work
and
drilling
activities
could
be
delayed
for
at
least
a
year
or
more
as
they
try
to
play
catch­
up.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
070
Comment
Summary
183
The
potential
for
lawsuits
initiated
by
disgruntled
working
interest
owners,
mineral
owners,
lease
owners
and
others
is
frightening
to
any
operator
who
owns
production
or
plans
to
drill
a
prospect.
The
uncertainty
and
the
fear
of
litigation
will
keep
potential
investors
out
of
an
already
risky
market,
a
market
heavily
dependent
on
outside
monies
to
keep
it
alive.
EPA
Response:
See
response
to
Comment
Summary
13.
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
070
Comment
Summary
184
At
the
present
time
it
takes
around
90
days
to
obtain
an
NPDES
permit
for
a
project
that
is
within
the
confines
of
a
community
not
too
far
from
the
state
capital.
How
long
is
it
going
to
take
to
get
someone
half
way
across
the
state,
especially
if
they
mist
deal
with
hundreds
of
additional
applications
to
what
they
already
have?
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
070
Comment
Summary
185
Proposed
oil
and
gas
pipelines,
sorely
needed
to
get
oil
and
gas
to
market,
will
also
be
affected,
especially
short
lines
from
wellheads
to
delivery
points.
All
of
this
extra
regulatory
burden
for
locations,
short
pipelines
and
small
roads
in
areas
that
usually
pass
across
grasslands
or
cultivated
fields
will
dramatically
hamper
our
ability
to
get
them
installed
and
operating.
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
36
EPA
Response:
EPA
acknowledges
that
some
pipelines,
such
as
short
lines
from
wellheads
to
delivery
points,
are
included
in
the
two
year
postponement
to
the
extent
they
fall
within
the
scope
of
activities
described
in
the
new
40
CFR
122.26(
e)(
8).
Details
of
EPA's
interpretation
of
the
term
"
transmission
facilities"
is
provided
elsewhere.
I­
E1­
070
Comment
Summary
186
The
requirements
for
Storm
Water
Pollution
Prevention
Plans
(
SWPPP)
add
many
new
requirements
that
significantly
increase
the
paper
burden
of
compliance
without
associated
environmental
benefit.
Some
of
these
requirements
are:
°
Defining
a
licensed
engineer
as
an
example
of
'
qualified
personnel'
for
Best
Management
Practices
(
BMP)
inspections
infers
a
level
of
expertise
that
is
unnecessary
for
this
permit.°
Requiring
that
weather
conditions
since
the
last
BMP
inspection
be
documented
is
difficult
for
unmanned
remote
facilities
and
of
minimal
benefit.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
070
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
37
Topic:
Difference
­
No
Permit
Needed
Because
Oil
and
Gas
is
Different
Than
Other
Construction
Comment
Summary
91
Unlike
construction
activity
for
housing
developments
or
commercial
ventures,
land
ownership
and
management
does
not
change
hands
in
the
process
of
the
exploring
for
oil
and
gas.
Oil
and
gas
production
operations
involve
the
leasing
of
surface
rights,
construction
occurs
within
a
matter
of
weeks,
and
timing
is
critical
because
it
involves
obtaining
a
drilling
rig
that
must
be
carefully
scheduled
and
is
paid
for
based
on
the
number
of
days
it
is
in
use.
Disruption
in
this
process
can
place
entire
projects
and
substantial
capital
at
risk.
These
consequences
are
at
issue
in
the
Phase
II
regulations.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
022
I­
E1­
026
I­
E1­
027
I­
E1­
030
I­
E1­
048
I­
E1­
050
I­
E1­
051
Comment
Summary
92
EPA's
scientific
model
is
based
wholly
on
conventional
residential
and
commercial
construction
and
development
projects.
This
model
does
not
support
a
need
to
impose
a
permit
requirement
or
additional
controls
on
oil
and
gas
grading,
clearing,
and
excavating
activities
beyond
those
already
used
at
oil
and
gas
sites.
These
activities
are
different
from
conventional
construction
activities,
with
minimal
environmental
impacts,
in
that
the
scope
and
extent
of
oil
and
gas
activities
are
non
contiguous,
contingent
on
geological
and
market
factors,
often
located
in
remote
places,
and
characterized
as
a
matter
of
technical
necessity
and
industry
practice
by
temporary,
non­
permeable,
low
impact
development
practices.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
028
Comment
Summary
93
The
reduced
impact
of
small
construction
sites
should
be
accompanied
by
reduced
burden
on
the
permittee.°
Sites
that
begin
and
end
construction
(
i.
e.,
temporary
stabilization)
within
a
30­
day
period
should
be
exempt
from
all
requirements
of
the
CGP.°
Submittal
of
a
NOI
for
small
sites
is
burdensome
and
unnecessary
and
should
be
covered
by
Permit­
by­
Rule.
EPA
acknowledged
that
NOIs
might
not
be
appropriate
for
small
sites
in
the
Phase
II
rule
(
64
FR
68777,
December
8,
1999).°
Inspection
of
BMP
should
be
at
a
decreased
frequency
for
small
sites
(
i.
e.,
every
two
weeks
during
active
construction
activities
and
every
two
months
after
temporary
stabilization).
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
See
response
to
Comment
Summary
6.
I­
E1­
047
Comment
Summary
94
Natural
gas
pipeline
and
local
gas
utility
projects
have
only
minimal,
temporary
impacts
on
storm
water
discharges.
Natural
gas
pipelines
and
distribution
lines
can
extend
over
many
miles.
However,
these
projects
are
typically
of
short
duration.
They
also
have
limited
impacts
because
only
small
portions
of
trench
are
open
at
any
one
time.
The
projects
are
narrow,
linear,
and
are
typically
less
than
25
feet
wide.
Gas
service
line
projects
are
as
narrow
as
18
inches,
and
natural
gas
utilities
follow
best
management
practices
(
BMPs)
to
minimize
sedimentation
and
erosion.
Many
of
the
projects
are
constructed
in
urban
areas
in
existing
streets,
curbs
and
sidewalks.
This
limits
the
soil
disturbance
areas
to
the
trench
and
excavations
and
any
on­
site
soil
stockpiles,
as
the
paved
and
cemented
areas
being
worked
on
do
not
erode.
In
many
cases,
the
soil
removed
from
trenches
and
excavations
is
not
stockpiled
on­
site,
but
removed
from
the
construction
site
either
immediately
or
within
a
day.
Most
importantly,
unlike
most
commercial
development
projects,
natural
gas
pipeline
and
utility
line
projects
do
not
cause
any
long
term
changes
in
storm
water
runoff
because
these
projects
cause
only
minimal
(
if
any)
change
to
original
grade
or
contours,
and
they
do
not
change
the
amount
of
impervious
surfaces.
AGA
believes
that
many
of
the
provisions
proposed
in
the
Phase
II
storm
water
regulations
do
not
consider
the
unique
characteristics
of
linear
gas
utility
construction
projects.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
043
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
38
Topic:
Difference
­
Permit
Needed
Because
Oil
and
Gas
is
No
Different
Than
Other
Construction
Comment
Summary
65
There
is
no
scientific
reason
to
exempt
the
oil
and
gas
industry
from
permitting
requirements
for
discharge
of
sediment
to
the
nation's
waterways.
The
oil
and
gas
industry
should
be
held
to
the
same
standard
as
all
other
industries
and
live
with
the
statutory
requirements
that
the
rest
of
the
construction
industry
will
be
living
with.
EPA
Response:
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.
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E1­
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E1­
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E1­
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E1­
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Comment
Summary
67
EPA
should
not
be
proposing
this
rule,
as
it
is
clearly
contrary
to
your
duty
to
protect
the
quality
of
the
nation's
waters.
EPA
Response:
See
response
to
Comment
Summary
65.
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E1­
010
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E1­
015
Comment
Summary
68
EPA
does
not
assert
that
storm
water
discharges
from
oil
and
gas
construction
are
any
less
polluted
than
discharges
from
other
construction
activities.
Nor
does
EPA
assert
that
oil
and
gas
operations
have
any
better
controls
in
place
for
storm
water
pollution
than
other
construction
activities.
EPA
Response:
EPA
will
evaluate
this
class
of
discharges
during
the
extension
granted
by
this
rule.
I­
E1­
053
Comment
Summary
172
Based
on
a
technical
review
by
the
SWRCB
staff,
there
is
no
reason
to
believe
that
the
cost
for
implementing
SW
construction
BMPs
for
oil
and
gas
construction
operations 
is
any
greater
than
those
incurred
by
other
entities
subject
to
Phase
II
storm
water
regulations.
EPA
Response:
EPA
acknowledges
the
commenters
assertion
that
there
is
no
reason
to
believe
that
the
cost
for
implementing
storm
water
construction
BMPs
for
oil
and
gas
construction
operations
are
no
greater
than
costs
incurred
by
other
entities
subject
to
Phase
II.
EPA
intends,
however,
to
consider
the
economic
impact
of
the
regulations
on
the
oil
and
gas
industry
and
determine
if
the
level
of
control
dictated
for
other
small
construction
activity
is
appropriate
for
small
oil
and
gas
related
construction
activities.
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E2­
004
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
39
Comment
Summary
187
Comparing
a
one
acre
oil
and
gas
site
to
a
one
acre
housing
subdivision
or
shopping
center
is
like
comparing
apples
to
oranges.
While
both
activities
may
disturb
one
acre
of
land
the
oil
and
gas
site
does
not
impose
a
permanent
impermeable
foot
print
by
creating
paved
roads
or
thousands
of
square
feet
of
roofed
building
which
concentrate
surface
run
off.
The
oil
and
gas
site
on
the
other
hand
results
in
a
temporary
disturbed
site
that
is
returned
to
the
natural
contour
and
revegetated
with
no
net
loss
of
permeable
area.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E2­
002
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
40
Topic:
Difference
­
Common
Plan
of
Development
Not
Appropriate
for
Oil
and
Gas
Comment
Summary
83
The
concept
of
'
common
plan
of
development
or
sale',
as
outlined
in
the
proposed
CGP,
is
vague
and
does
not
lend
itself
to
a
workable
purpose
so
far
as
the
oil
and
gas
industry
is
concerned.
In
principle,
the
idea
seems
to
be
to
prevent
a
large
project
from
being
segmented
in
such
a
way
to
avoid
permitting.
It
may
be
a
valid
concept
for
a
subdivision
or
large
shopping
center
that
is
being
built
over
a
longer
period
of
time
but
is
clearly
designed
to
cover
an
area
larger
than
its
initial
phase.
The
oil
and
gas
exploration
and
development
plans
are
created
with
a
different
approach.
When
an
oil
and
gas
producer
begins
to
develop
a
'
field',
it
is
unknown
as
to
when,
where
and
how
many
wells
are
to
be
eventually
drilled.
Development
of
an
oil
and
gas
field
cannot
be
planned
in
advance.
Oil
and
gas
development
is
not
an
easily
predictable
process.
The
oil
and
gas
operator
does
not
know
with
certainty
the
extent
of
development
he
will
undertake
in
a
particular
area.
The
common
plan
of
development
or
sale
concept,
if
it
is
to
be
applied
to
oil
and
gas
operations,
should
only
apply
to
that
number
of
wells,
all
under
development
at
the
same
time,
for
which
final
stabilization
has
not
been
achieved.
EPA
Response:
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.
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Comment
Summary
84
While
'
future
contingent'
activities
can
be
excluded
from
a
'
common
plan',
the
definition
of
'
future
contingency'
is
based
on
an
ambiguous
reference
to
'
funded'
activities.
This
reference
would
appear
[
to]
require
most
future
activities
to
be
included
in
the
'
common
plan',
thereby
excluding
most
development
and
in­
fill
drilling
programs
from
coverage
under
a
'
common
plan'.
EPA
Response:
See
response
to
Comment
Summary
83.
I­
E1­
028
Comment
Summary
85
In
the
proposed
Fact
Sheet
accompanying
the
proposed
CGP,
EPA
attempts
to
explain
the
phrase
"
common
plan"
using
the
oil
and
gas
industry
as
an
example.
EPA's
explanation
poses
numerous
problems
for
the
oil
and
gas
industry.
For
example,
in
determining
whether
two
non­
contiguous
construction
activities
are
considered
a
part
of
a
common
plan
of
development,
EPA
introduced
a
1/
4
mile
distance
criteria.
Two
well
pads
which
are
at
least
1/
4
mile
apart
are
to
be
considered
two
separate
construction
activities
if
any
interconnecting
road,
pipeline
or
utility
is
not
under
construction
at
the
same
time.
First,
many
wells
are
developed
on
tracks
of
20
to
160
acres
(
or
1/
32
sq.
mi.
to
1/
4
sq.
mi.).
When
multiple
wells
are
drilled
to
the
same
reservoir,
they
are
usually
drilled
less
than
1/
4
miles
from
each
other.
Second,
interconnecting
access
roads
and
pipelines
are
often
built
along
with
well
pads.
If
"
under
construction
at
the
same
time"
means
"
not
finally
stabilized"
as
defined
in
the
proposed
CGP,
this
limitation
would
be
a
significant
problem.
Due
to
the
distance
and
"
interconnecting"
limitations,
many
non­
contiguous
oil
and
gas
construction
activities
would
have
to
be
considered
as
under
a
common
plan
of
development,
triggering
the
permit
requirement.
EPA
Response:
See
response
to
Comment
Summary
83.
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E1­
027
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E1­
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Comment
Summary
86
The
issue
of
the
treatment
of
"
common
plan
of
development"
as
it
applies
to
E&
P
facilities
must
be
considered
in
the
context
of
the
postponed
application
of
the
CGP
to
oil
and
gas
facilities.
Crafted
as
the
rest
of
the
CGP
was
 
for
subdivision
and
shopping
center­
like
facilities
 
its
application
to
oil
and
gas
facilities
creates
enormous
uncertainty.
EPA's
deferral
should
include
sites
that
are
regulated
under
Phase
I
that
are
part
of
common
plan
of
development
that
disturbs
greater
than
five
acres.
EPA
Response:
See
response
to
Comment
Summary
83.
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026
I­
E1­
030
I­
E1­
048
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
41
Comment
Summary
87
If
sites
of
five
and
greater
acres
or
sites
that
are
part
of
a
common
plan
of
development
that
disturbs
five
acres
were
not
included
in
the
postponement,
the
postponement
would
become
a
false
promise.
While
reassessments
of
the
application
of
the
permit
process
to
oil
and
gas
facilities
were
being
undertaken,
some,
if
not
all,
EPA
regions
could
be
applying
the
convoluted
common
plan
of
development
analysis
to
the
same
operations
that
were
not
being
regulated
due
to
the
postponement
and
thereby
regulating
them.
EPA
Response:
See
response
to
Comment
Summary
83.
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E1­
026
I­
E1­
030
Comment
Summary
88
The
construction
area
measurement
methodology
utilized
to
determine
if
a
storm
water
discharge
permit
is
required
is
severely
flawed.
Using
the
current
measurement
method,
multiple
one­
half
acre
wellsites
located
several
thousand
feet
apart
are
considered
a
single
project
if
they
are
connected
by
a
road
or
pipeline.
In
reality,
each
well
in
an
oil
and
gas
field
is
a
separate
project,
widely
separated
from
other
wells.
The
total
disturbed
area
in
an
oil
and
gas
field
may
be
only
2­
3%
of
the
field
area,
with
large
undisturbed
areas
between
each
well.
Access
roads
between
wells
are
frequently
stabilized
immediately
with
application
of
stone.
Pipelines
are
normally
reclaimed,
mulched
and
seeded
within
a
few
days
or
weeks
of
initial
surface
disturbance.
Because
of
their
long,
ribbon­
like
nature,
well
access
roads
and
pipelines,
even
though
they
may
exceed
total
area
thresholds,
do
not
pose
the
same
storm
water
run­
off
threat
as
a
consolidated
project
of
similar
total
area.
EPA
Response:
See
response
to
Comment
Summary
83.
I­
E1­
051
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
42
Topic:
Difference
­
Use
of
NOI/
NOTs
Comment
Summary
95
GPA
also
supports
removing
the
requirement
to
submit
a
NOI
for
construction
sites
48
hours
prior
to
start
of
construction 
the
requirement
to
submit
NOIs
by
March
10,
2003
does
not
allow
industry
sufficient
time
to
gather
data,
complete
ESA
reviews,
complete
Historic
Preservation
reviews,
and
ensure
that
all
appropriate
personnel
are
trained
and
familiar
with
the
new
conditions
in
the
Phase
II
permit.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
047
Comment
Summary
96
Many
requirements
in
the
proposed
CGP,
such
as
completion
and
submittal
of
the
NOI
and
NOT,
reviews
of
endangered
species
and
historic
sites
preservation,
will
cause
significant
delay
in
an
oil
and
gas
project.
The
project
schedule
may
allow
time
for
a
cursory
review
of
endangered
species
habitats
and
historic
sites
preservation
to
ensure
compliance
with
the
respective
Federal
laws;
however,
the
delay
resulting
from
the
detailed
review
and
documentation
as
prescribed
in
the
proposed
CGP
and
its
addenda
will
jeopardize
the
success
of
the
project.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
027
Comment
Summary
97
EPA's
construction
storm
water
program
and
the
CGP
track
the
same
process,
requiring
a
Notice
of
Intent
(
NOI)
and
a
Notice
of
Termination
(
NOT).
The
planning
phase
of
such
a
project
takes
many
months
even
years,
allowing
time
for
detailed
planning
and
review
for
such
items
as
endangered
species
and
historic
sites
preservation.
An
oil
and
gas
construction
project,
on
the
other
hand,
is
typically
on
a
very
tight
schedule
and
moves
very
quickly
from
planning
to
construction
because
both
the
access
to
mineral
rights
and
the
availability
of
drilling
rigs
are
on
schedules.
Failure
to
meet
the
schedule
often
results
in
the
loss
of
opportunity
to
drill
which
could
lead
to
forfeiting
hundreds
of
thousands
of
dollars
invested
in
the
project.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
027
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
43
Topic:
Difference
­
General
Comment
Summary
89
If
additional
regulation
is
warranted,
EPA
must
use
models
and
definitions
that
are
appropriate
and
specific
to
activities
associated
with
oil
and
gas
operations.
In
defining
various
terms
and
developing
the
various
requirements,
EPA
has
used
a
model
based
on
residential
and
commercial
construction
projects,
which
does
not
account
for
factors
that
control
location,
spacing,
planning
and
timing
of
oil
and
gas
exploration
and
production
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
039
Comment
Summary
90
Because
the
Agency
believed
that
oil
and
gas
facilities
were
not
affected
by
Phase
I
or
II,
the
Phase
I
and
II
regulations
and
proposed
CGP
are
structured
to
address
construction
of
building
facilities
 
houses
and
commercial
buildings
not
well­
sites
and
facilities.
There
is
a
lack
of
understanding
of
the
differences
between
everyday
oil
and
gas
industry
activities
and
typical
residential
and
commercia1activities.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
I­
E1­
026
I­
E1­
030
I­
E1­
035
I­
E1­
048
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
44
Topic:
No
Proper
Evaluation
of
Energy­
Related
Production
Activities
(
EO
13211)

Comment
Summary
123
It
is
an
appropriate
action
to
postpone
the
permit
deadline
to
further
evaluate
and
resolve
the
various
issues.
Executive
Order
13211
directs
EPA
to
consider
the
impact
of
its
actions
on
energy­
related
production
activities.
Since
underground
natural
gas
transmission
and
distribution
pipeline
construction
projects
construction
projects
are
an
integral
part
of
natural
gas
energy
­
related
production,
EPA,
under
Executive
Order
13211
needs
to
consider
the
impacts
the
Phase
II
final
rule
would
have
on
such
projects.
This
includes
the
cost
of
compliance
for
storm
water
pollution
prevention
plans
and
inspection
requirements
for
sites,
which
involve
small,
discrete,
remote,
and
simple
sites.
EPA
Response:
See
response
to
Comment
Summary
6.
In
the
spirit
of
EO
13211,
EPA
is
evaluating
the
impacts
of
the
Phase
II
rule
on
those
facilities
for
which
the
postponement
applies
(
i.
e.,
oil
and
gas
exploration,
production,
processing,
and
treatment
operations
or
transmission
facilities),
but
is
not
expanding
the
scope
of
the
postponement
to
additional
sites.
I­
E1­
022
I­
E1­
028
I­
E1­
035
I­
E1­
057
I­
E1­
063
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
45
Topic:
Development
of
Storm
Water
Requirements
for
Oil
and
Gas
Comment
Summary
73
Under
the
terms
of
the
Clean
Water
Act,
any
'
contaminated'
runoff
from
an
otherwise
exempted
oil
and
gas
site
is
not
exempt
from
NPDES
permitting
requirements.
EPA
continues
to
retain
the
ability
to
address
such
storm
water
discharges
through
permitting
or
other
requirements.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
061
Comment
Summary
74
EPA
proposes
to
begin
gathering
information
to
justify
the
proposed
exemption
for
oil
and
gas
construction
now,
but
the
March
2003
compliance
deadline
is
one
about
which
the
oil
and
gas
industry
and
EPA
have
known
since
at
least
Dec
8,
1999,
when
the
phase
II
regulations
were
finalized.
The
oil
and
gas
industry
has
already
had
three
years
in
which
to
supply
information
to
EPA
showing
its
construction
activities
were
less
polluting
than
other
construction
activities
of
between
1
and
5
acres.
For
whatever
reason,
it
has
failed
to
do
so.
EPA
Response:
EPA
disagrees
with
the
commenters
premise
that
the
oil
and
gas
industry
is
obtaining
a
two
year
extension
because
its
construction
activity
is
less
polluting
than
other
construction
activities.
The
industry
has
provided
information
over
the
course
of
the
last
year
indicating
that
close
to
30,000
oil
and
gas
sites
will
be
affected
by
the
Phase
II
storm
water
rule,
a
number
that
far
exceeds
EPA's
rulemaking
estimate
that
"
few,
if
any
such
sites
actually
disturb
more
than
one
acre
of
land."
Economic
Analysis
of
the
Final
Phase
II
Storm
Water
Rule,
footnote
#
2
on
p.
4­
2,
October
1999,
EPA
833­
R­
99­
002.
EPA
is
providing
a
two
year
extension
to
evaluate
data
on
the
development
and
use
of
appropriate
best
management
practices
for
the
industry
as
well
as
to
evaluate
the
impact
of
its
actions
on
energy­
related
production
activities.
I­
E1­
053
Comment
Summary
76
The
idea
that
the
oil
and
gas
exemption
is
broader
and
less
stringent
than
the
mining
exemption
has
been
upheld
by
the
courts
in
Natural
Resources
Defense
Council
v.
U.
S.
EPA.
In
NRDC,
plaintiffs
objected
to
the
distinction
between
the
mining
industry
and
the
oil
and
gas
industry
in
EPA's
regulations,
and
alleged
that
the
oil
and
gas
industry
should
be
held
to
the
same
stricter
standard
as
the
mining
industry.
The
court
found,
however,
'
no
support
in
the
statute
or
legislative
history
for
NRDC's
claim
that,
with
respect
to
 
substances'
discharged
from
oil
and
gas
operations,
'
levels
above
background
must
be
considered
contamination.'
966
F.
2d
1296
(
9th
Cir.
1992).
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
028
Comment
Summary
77
See
response
to
Comment
Summary
6.
If
EPA
creates
a
storm
water
program
and
a
CGP
for
the
oil
and
gas
industry
in
spite
of
the
CWA
exemption,
Marathon
urges
EPA
to
tailor
the
program
and
the
CGP
to
the
unique
nature
of
the
industry.
Specifically,
the
program
and
the
CGP
should
include
a
workable
definition
of
"
common
plan",
and
should
not
require
the
NOI
and
NOT,
and
the
review
of
endangered
species
and
historic
sites
preservation
as
outlined
in
the
proposed
CGP.
EPA
Response:
EPA
plans
to
evaluate
the
industry
to
determine
its
"
uniqueness"
with
respect
to
storm
water
control
and
require
controls
as
appropriate
based
on
that
evaluation.
EPA's
definition
of
"
common
plan"
is
discussed
in
the
preamble
to
this
rule.
EPA
has
received
anecdotal
information
indicating
that
its
current
approach
for
the
review
of
endangered
species
and
historic
site
preservation
has
negative
economic
impacts
on
the
oil
and
gas
sector
and
plans
to
work
with
the
appropriate
organizations
to
evaluate
possible
alternative
approaches.
I­
E1­
027
Comment
Summary
78
Special
additional
regulations
need
to
be
attached
to
oil
and
gas
construction
activities
in
order
to
minimize
the
amount
of
stream
degradation
presently
being
allowed
to
happen
by
this
industry.
EPA
Response:
EPA
has
not
evaluated
data
that
is
consistent
with
the
commenter's
implication
that
oil
and
gas
construction
activities
degrade
streams
more
so
than
other
types
of
construction
activities.
Among
other
things,
EPA
plans
to
spend
the
next
two
years
evaluating
the
impacts
of
the
oil
and
gas
construction
activities
on
the
environment
and
possible
BMPs
to
address
such
impacts.
I­
E1­
016
I­
E1­
017
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
46
Comment
Summary
79
EPA
cannot
study
the
full
scope
of
the
exemption
without
looking
at
all
oil
and
gas
activities,
including
the
construction
activities
that
are
an
inherent
part
of
oil
and
gas
operations
and
regardless
of
acreage
to
be
disturbed
by
such
activities.
EPA
Response:
EPA
plans
to
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
for
all
site
sizes.
I­
E1­
039
Comment
Summary
80
EPA
should
conduct
a
thorough
reassessment
of
its
storm
water
construction
permitting
for
oil
and
natural
gas
exploration
and
production
facilities.
EPA's
proposed
suspension
of
the
Phase
II
storm
water
construction
regulation
as
it
applies
to
oil
and
gas
exploration
and
production
facilities
initiates
an
opportunity
to
consider
alternative
approaches
that
would
be
consistent
with
the
environmental
impacts
of
construction
of
these
facilities
while
minimizing
the
regulatory
burden.
This
provides
an
opportunity
to
review
Best
Management
Practices
within
the
industry,
and
as
required
by
many
states.
EPA
Response:
See
response
to
Comment
Summary
4.
EPA
is
planning
to
consider
alternative
regulatory
approaches
that
would
still
achieve
environmental
benefit.
I­
E1­
026
I­
E1­
030
Comment
Summary
81
There
is
no
reason
to
postpone
permitting
for
2
years
when
most
contractors
involved
have
experience
with
sites
over
5
acres
and
therefore
should
already
have
a
storm
water
management
plan
in
hand
that
could
be
routinely
implemented.
If
there
really
was
a
desire
by
EPA
to
'
better
evaluate...
the
appropriate
BMPs
for
preventing
contamination...'
the
rule
would
be
not
be
postponed,
but
rather
would
be
imposed
as
interim
minimum
with
increased
requirements
forthcoming.
EPA
Response:
See
response
to
Comment
65.
EPA
disagrees
with
the
commenters
approach
suggesting
that
EPA
evaluate
small
oil
and
gas
regulatory
requirements
while
still
applying
the
regulatory
requirements.
The
commenter
argues
that
interim
measures
could
be
put
in
effect
with
additional
measures
added
based
on
the
results
of
subsequent
EPA
review.
The
oil
and
gas
industry
asserts
that
the
existing
"
minimum"
requirements
would
in
fact
have
a
significant
economic
impact
on
the
industry
and
believe
something
less
than
the
current
regulatory
approach
is
appropriate.
To
perform
that
analysis,
EPA
believes
postponement
of
the
existing
requirements
for
the
oil
and
gas
industry
is
appropriate.
I­
E1­
045
Comment
Summary
82
We
believe
that
not
only
should
a
delay
in
implementation
occur,
but
that
the
oil
and
gas
­
exemption
­
included
in
the
original
legislation
supporting
the
Phase
II
regulations
should
be
recognized
by
EPA.
The
proposed
delay
would
then
become
a
permanent
exemption.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
052
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
47
Topic:
Regulations­
Clean
Water
Act
Interpretation
Correct
Comment
Summary
124
EPA's
long
standing
interpretation
of
the
Clean
Water
Act
is
correct
and
the
current
regulations
appropriately
distinguish
between
construction
activities
and
oil
and
gas
exploration
and
production
operations.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
002
I­
E1­
003
I­
E1­
005
I­
E1­
006
I­
E1­
007
I­
E1­
008
I­
E1­
009
I­
E1­
012
I­
E1­
013
I­
E1­
014
I­
E1­
015
I­
E1­
018
I­
E1­
019
I­
E1­
020
I­
E1­
021
I­
E1­
025
I­
E1­
056
I­
E1­
058
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
48
Topic:
Regulations­
Clean
Water
Act
Interpretation
Incorrect
Comment
Summary
157
No
distinction
is
made
in
the
language
of
the
statute
between
the
development/
construction
phase
of
the
site
nor
the
operation
phase
of
these
oil
and
gas
sites.
Congress
was
quite
clear
and
unequivocal
in
its
exemption:
'[
t]
he
Administrator
shall
not
require
a
permit
under
this
section,
nor
shall
the
Administrator
directly
or
indirectly
require
any
State
to
require
a
permit
for
discharges
of
storm
water
from
*
oil
and
gas
exploration,
production,
processing,
or
treatment
operations
or
transmission
facilities*.'
33
U.
S.
C.
§
1342(
l)(
2)
(
Emphasis
added).
Accordingly,
ATINGP
urges
the
EPA
to
re­
examine
its
interpretation
of
this
exemption
during
this
two­
year
period
of
postponement.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
038
I­
E1­
062
I­
E1­
065
I­
E1­
066
Comment
Summary
158
EPA
has
applied
the
Phase
II
regulations
to
site
preparation
activities
at
oil
and
gas
sites
even
though
the
1987
amendments
to
the
Clean
Water
Act,
33
U.
S.
C.
§
§
1251
et
seq.,
exempt
oil
and
gas
exploration
and
production
from
the
storm
water
permitting
rules.
This
application
is
contrary
to
both
the
intent
and
the
letter
of
the
law 
As
is
clear
in
the
 
language,
storm
water
runoff
from
all
aspects
of
oil
and
gas
operations
is
to
be
exempt
from
permitting
requirements
unless
the
runoff
comes
in
contact
with
one
of
the
materials
listed.
It
is
submitted
that
absent
some
unusual
event
or
accident,
runoff
during
site
preparation
activities
would
not
come
in
contact
with
any
"
raw
material,
intermediate
products,
finished
product,
byproduct
or
waste
product"
located
on
the
site.
As
to
coming
in
contact
with
"
overburden,"
the
legislative
history
of
the
1987
amendments
makes
it
clear
that
this
term
was
to
apply
only
to
mining
operations
and
not
to
oil
and
gas
sites.
The
Senate
version
of
the
proposed
bill
exempted
storm
water
discharges
only
from
oil
and
gas
operations
provided
such
discharges
were
not
'
contaminated
with
process
wastes,
toxic
pollutants,
hazardous
substances,
or
oil
and
grease.'
See
S.
1128,
99th
Cong.
§
401
(
1985).
The
House
version
added
discharges
from
mining
operations
that
'
do
not
come
in
contact
with
any
overburden
raw
material,
or
product
located
on
the'
mining
site
to
the
exemption.
See
H.
R.
8,
99th
Cong.
§
401
(
1985).
It
was
the
Conference
Substitute
bill
that
combined
the
Senate
and
House
versions,
creating
the
current
language.
See
H.
R.
Conf.
Rep.
No.
100­
4,
99th
Cong.,
2d
Sess.,
at
H10576
(
Oct.
15,
1986);
Water
Quality
Act
of
1987,
Pub.
L.
No.
100­
4,
§
401,
101
Stat.
7,
65­
66
(
Feb.
4,
1987).
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
061
Comment
Summary
159
We
strongly
believe
that
EPA
is
incorrect
in
its
interpretation
that
the
construction
of
roads,
equipment
pads,
gathering
lines,
compressor
stations,
etc.
is
not
included
in
the
scope
and
effect
of
the
exemptions
of
33
U.
S.
C.
1342
(
l)(
2)
and
other
storm
water
provisions
of
the
Clean
Water
Act
(
CWA).
Section
402(
1)
of
the
Clean
Water
Act
exempts
mining
and
oil
and
gas
operations
from
the
requirement
to
obtain
a
permit
under
the
storm­
water
permitting
program
for
uncontaminated
discharges.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
023
I­
E1­
026
I­
E1­
030
I­
E1­
038
I­
E1­
041
I­
E1­
047
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
49
Comment
Summary
160
Section
402(
p)
of
the
CWA,
enacted
in
1987,
requires
permits
for
storm
water
discharge
from
industrial
activity.
Section
402(
1)(
2)
of
the
CWA,
which
was
enacted
at
the
same
time
as
section
402(
p),
exempts
oil
and
gas
activities
from
storm
water
regulation 
Congress
did
not
define
the
term
'
industrial
activity'
when
it
enacted
the
statute
in
1987.
The
idea
that
'
industrial
activity'
includes
'
construction
activity'
at
all
is
wholly
EPA's
creation,
as
is
the
idea
that
clearing,
grading,
and
excavating
activities
as
oil
and
gas
sites
are
'
construction
activities'
distinct
from
'
oil
and
gas
activities'.
The
language
of
the
statute,
legislative
history,
and
common
usage,
however,
all
show
that
land
disturbing
activities
ordinarily
associated
with
oil
and
gas
activities
are
exempt
under
section
402(
1)(
2).
It
was
congress'
intent
to
exempt
all
discharges
of
uncontaminated
storm
water
associated
with
oil
and
gas
exploration,
production,
processing,
treatment,
and
transmission,
including
clearing,
grading
and
excavating
activities
ordinarily
associated
with
oil
and
gas
activities.
This
interpretation
is
consistent
with
common
usage
of
the
phrase
'
oil
and
gas
operations.'
Oil
and
gas
operations
begin
with
the
commencement
of
'
drilling
operations.'
Such
operations
include
site
work
in
preparation
for
the
drilling
of
a
well.
When
congress
enacts
laws
it
is
presumed
to
be
aware
of
all
pertinent
judgments
rendered
by
the
courts.
When
a
statute
uses
words
that
have
meaning
under
common
law,
those
words
are
presumed
to
have
their
common
meaning,
unless
the
context
implies
to
the
contrary.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
028
Comment
Summary
161
The
legislative
history
shows
that
Congress
intended
the
oil
and
gas
exemption
to
be
broader
than
the
mining
exemption.
Specifically,
Congress
intended
the
term
'
overburden'
to
apply
only
to
geological
materials
exposed
by
the
mining
industry
and
intended
a
stricter
standard
of
'
contamination'
to
apply
to
discharges
from
mining
activities.
The
reference
to
the
term
'
overburden'
in
section
402(
1)(
2)
does
not
apply
to
oil
and
gas
operations
and
does
not
exclude
storm
water
discharges
from
clearing,
grading,
and
excavating
activities
at
oil
and
gas
operations
from
coverage
by
the
exemption,
regardless
of
whether
it
might
be
argued
that
it
might
exclude
such
discharges
under
the
stricter
standard
for
mining
sites.
The
legislative
history
of
section
402(
1)(
2)
makes
clear
that
the
term
'
overburden'
in
the
statute
was
derived
from
the
addition
of
mining
operations'
to
the
exemption,
and
was
intended
to
apply
to
exposure
of
subsurface
materials
exposed
during
mining
operations 
EPA
has
in
the
past
correctly
recognized
that
the
term
'
overburden'
in
the
statute
is
intended
to
be
specific
to
the
mining
industry.
EPA
regulations
define
overburden
as
'
any
material
of
any
nature,
consolidated
or
unconsolidated,
that
overlies
a
mineral
deposit,
excluding
topsoil
or
similar
naturally
occurring
surface
materials
that
are
not
disturbed
by
mining
operations'.
40
C.
F.
R.
122.26(
b)(
10)
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
028
Comment
Summary
162
With
respect
to
mining
operations...
Congress
pointed
EPA
to
more
stringent
background
levels
as
a
threshold,
as
shown
by
the
italicized
language
in
the
following
passage
from
the
conference
report:
'
Permits
are
not
required
where
storm
water
runoff
is
diverted
around
mining
operations
or
oil
and
gas
operations
and
does
not
come
in
contact
with
overburden,
raw
material,
product,
or
process
wastes.
In
addition,
where
storm
water
runoff
is
not
contaminated
by
contact
with
such
materials,
as
determined
by
the
administrator,
permits
are
not
required.
With
respect
to
oil
or
grease
or
hazardous
substances,
the
determination
of
whether
storm
water
is
'
contaminated
by
contact
with'
such
materials,
as
established
by
the
administrator,
shall
take
into
consideration
whether
these
materials
are
present
in
such
storm
water
runoff
in
excess
of
reportable
quantities
under
section
311
of
the
Clean
Water
Act
or
section
102
of
the
Comprehensive
Environmental
Response,
Compensation,
and
Liability
Act
of
1980
or
in
the
case
of
mining
operations,
above
natural
background
levels'.
H.
R.
Conf.
Rep
No.
100­
4,
99th
Cong.,
2d
Sess,
at
H10574.
The
italicized
language
shows
that
congress
intended
reportable
quantities
to
be
considered
as
the
threshold
for
contamination
at
oil
and
gas
sites,
whereas
background
would
be
the
threshold
at
mining
sites.
EPA
dropped
the
use
of
background
levels
for
determining
whether
a
mining
operation
was
exempt
under
section
402(
1)(
2)
due
to
technical
difficulties
in
establishing
background.
Instead,
EPA
requires
a
permit
for
mining
operations
whenever
`
storm
water
runoff
from
mining
operations
come
into
contact
with
any
overburden,
raw
material,
intermediate
products,
finished
products,
byproducts
or
waste
products
located
at
the
site
of
such
operations.'
In
contrast,
EPA
requires
an
oil
and
gas
site
to
obtain
a
permit
only
if
there
has
been
a
reportable
quantity
release
of
oil
or
hazardous
substance
or
discharges
from
the
site
contribute
to
a
violation
of
a
water
quality
standard.
The
courts
have
agreed
that
Congress
intended
a
stricter
standard
for
mining
sites
than
for
oil
and
gas
sites
and
have
upheld
the
difference
between
the
two
types
of
operations
in
EPA's
rules.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
028
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
50
Comment
Summary
163
In
the
1995
preamble
to
the
MSGP,
EPA
recognized
that
'
drilling
operations
require
construction
of
access
roads,
drill
pads,
mid
pits,
and
possibly
work
camps
or
temporary
trailers,'
and
surface
impoundments,
as
well
as
site
closures.
The
1995
MSGP
identified
the
pollutant
source
for
such
oil
and
gas
activities
to
be
'
soil/
dirt,
leaking
equipment
and
vehicles,'
with
the
pollutants
of
concern
being
'
TSS,
TDS,
oil
and
grease.'
The
discharges
required
to
obtain
coverage
under
Sector
I
are
specifically
identified
by
EPA
to
include
only
sites
that
had
a
reportable
quantity
release,
as
follows:
'
As
stated
above
and
at
40
C.
F.
R.
122.26(
b)(
14)(
iii),
only
those
oil
and
gas
facilities
that
discharge
'
contaminated;
storm
water
are
required
to
submit
permit
applications
under
the
November
16,
1990
storm
water
rule.
For
oil
and
as
facilities,
contamination
means
there
has
been
a
release
of
a
Reportable
Quantity
(
RQ)
of
oil
or
hazardous
substances
in
storm
water
since
November
16,
1987
(
hereinafter
referred
to
as
an
'
RQ
release')
Only
those
facilities
that
have
had
an
RQ
release
are
required
to
submit
a
storm
water
permit
application.'
An
oil
and
gas
operator
reading
this
guidance
would
conclude
that
clearing,
grading
and
excavating
activities
associated
with
oil
and
gas
activities
would
be
exempt
from
the
permit
requirement
and
would
not
require
coverage
unless
a
RQ
release
had
occurred
at
the
site
during
clearing,
grading
and
excavating
activities.
EPA
Response:
EPA
did
not
propose
any
action
with
respect
to
this
regulatory
provision,
and
is
today
taking
no
action
interpreting
such
provision.
I­
E1­
028
Comment
Summary
164
Section
402(
1)(
2)
 
excludes
uncontaminated
storm
water
from
oil
and
natural
gas
exploration
and
production
facilities
from
the
NPDES
permitting
process.
And,
since
the
municipal
and
industrial
storm
water
discharges
subsection
 
Section
402(
p)
 
is
directed
toward
permitting
of
storm
water
discharges,
it
does
not
override
this
exclusion.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
048
Comment
Summary
165
The
Association
believes,
first,
that
the
proposed
postponement
is
needed
to
avoid
unnecessary
and
counterproductive
litigation
over
U.
S.
EPA's
authority
to
regulate
oil
and
gas
activities
as
contemplated.
When
Congress
amended
the
Clean
Water
Act
in
1987
to
authorize
US.
EPA
to
regulate
storm
water
discharges,
it
specifically
exempted
from
the
permitting
requirements
uncontaminated
storm
water
runoff
from
oil
and
gas
facilities.
Congress
stated:
'
The
Administrator
shall
not
require
a
permit
under
this
section,
nor
shall
the
Administrator
directly
or
indirectly
require
any
State
to
require
a
permit,
for
discharges
of
storm
water
runoff
from
mining
operations
or
oil
and
gas
exploration,
production,
processing,
or
treatment
operations...
which
are
not
contaminated
by
contact
with,
or
do
not
come
into
contact
with,
any
overburden,
raw
material,
intermediate
products,
finished
product,
byproduct,
or
waste
products
located
on
the
site
of
such
operations.
[
33
U.
S.
C.
5
1342(
1)(
2).]'
Construction
activities
are
a
necessary
and
intrinsic
component
of
oil
and
natural
gas
exploration,
production,
processing
and
treatment
operations,
and
thus
are
expressly
exempt
from
U.
S.
EPA's
permitting
authority.
This
is
perhaps
best
illustrated
for
those
who
are
not
familiar
with
the
industry
by
oil
and
gas
exploration
operations,
which,
because
of
the
nature
of
this
particular
natural
resource,
consist
in
major
part
of
drilling
and
related
construction
operations.
Drilling,
in
fact,
is
the
only
way
to
test
for
the
actual
presence
of
these
resources.
It
is
therefore
beyond
belief
that
Congress
intended
to
exempt
oil
and
gas
operations
but
not
the
construction
activities
inherent
to
and
which
make
up
those
operations.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
042
Comment
Summary
167
The
need
for
resolution
of
the
Clean
Water
Act,
(
33
USCA
Section
1342
(
1)(
2),
which
specifically
states
that
a
permit
shall
not
be
required
for
uncontaminated
discharges
of
storm
water
runoff
from
oil
&
gas
exploration,
production,
processing,
or
treatment
operations.
It
is
our
strong
opinion
that
Congress
intended
to
exclude
all
oil
and
gas
exploration
and
production
activities,
including
construction
activities,
from
the
storm
water
requirements.
Construction
activities
to
drilling
and
production
sites
are
an
inherent
and
necessary
part
of
the
exploration,
production
and
development
of
the
nations
oil
and
natural
gas
resources.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
035
Comment
Summary
168
To
attempt
to
separate
construction
activity
of
well
sites
and
facilities
from
E&
P
operations
is
no
less
than
an
effort
to
circumvent
the
intent
of
the
United
States
Congress
to
expand
EPA's
jurisdiction
beyond
the
Congressional
authorization.
EPA
Response:
EPA
disagrees
with
the
suggestion
that,
through
today's
action,
it
is
attempting
to
"
circumvent
the
intent"
of
Congress.
I­
E1­
030
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
51
Comment
Summary
170
The
Clean
Water
Act
(
CWA)
Section
402(
1)(
2)
provides
that:
'
The
Administrator
shall
not
require
a
permit
under
this
section,
nor
shall
the
administrator
directly
or
indirectly
require
any
State
to
require
a
permit,
for
discharges
of
storm
water
runoff
from
...
oil
and
gas
exploration,
production,
processing,
or
treatment
operations
or
transmission
facilities
composed
entirely
of
flows
which
are
from
conveyances
or
systems
of
conveyances
(
including
but
not
limited
to
pipes,
conduits,
ditches,
and
channels)
used
for
collecting
and
conveying
precipitation
runoff
and
which
are
not
contaminated
by
contact
with,
or
do
not
come
into
contact
with,
any
overburden,
raw
material,
intermediate
products,
finished
product,
byproduct,
or
waste
products
located
on
the
site
of
such
operations.'
COP
believes
that
the
construction
of
roads,
equipment
pads,
gathering
lines,
flowlines
and
transmission
lines
(
i.
e.,
pipelines),
associated
with
oil
and
gas
exploration,
production,
processing,
transmission,
or
treatment
operations,
including
pipelines
for
delivery
of
refined
products
and
chemicals,
is
included
in
the
scope
and
effect
of
33
U.
S.
C.
5
1342(
1)(
2).
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
037
Comment
Summary
179
Under
the
current
rules,
federal
agencies
are
interpreting
the
regulations
in
such
a
manner
as
to
circumvent
the
intent
of
the
law
by
calling
the
building
of
drilling
sites
and
lease
roads
'
construction',
thus
not
affected
by
oil
and
gas
exemption.
Doing
this
threatens
every
drilling
contractor
and
operator
in
the
United
States.
Some
companies
are
already
fighting
court
battles
to
protect
their
interpretation
of
the
law.
Proposed
changes
will
pull
in
every
drill
site
in
the
nation
regardless
of
the
outcome
of
these
court
challenges.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
070
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Topically
March
2003
Page
52
Topic:
Regulations­
Clean
Water
Act
Exemption
Inconsistent
with
Statutory
Requirements
Comment
Summary
125
Cutting
the
oil
and
gas
industry
a
two­
year
break
from
the
requirements
that
the
rest
of
the
construction
industry
must
live
with
is
contrary
to
this
statutory
requirement
and
is
contrary
to
EPA's
duties
to
protect
water
quality.
EPA
Response:
See
response
for
Comment
Summary
65.
EPA
disagrees
that
this
action
is
contrary
to
the
CWA
and
contrary
to
EPA's
duties
to
protect
water
quality.
EPA
is,
in
fact,
extending
the
compliance
deadline
for
oil
and
gas
activities
to
better
evaluate
the
types
of
controls
in
place
to
control
storm
water
runoff
and
the
economic
impact
to
the
sector
associated
with
those
controls.
I­
E1­
013
I­
E1­
025
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
1
March
2003
Page
1
[
Comment
responses
are
presented
as
follows.
Comments
are
in
numerical
order.
Following,
each
comment
(
or
comment
summary)
is
identified
by
a
comment
tracking
number
and
then
the
narrative
(
or
narrative
summary)
of
the
comment.
EPA's
response
is
provided
after
that.
Finally,
a
list
of
each
of
the
associated
document
numbers
from
EPA's
Water
Docket
is
provided
in
the
format
I­
E1­###.]

Comment
Summary
2
Under
Executive
Order
12866,
(
58
FR51735,
Oct.
4,
1993),
EPA
must
determine
whether
the
regulatory
action
is
"
significant"
and,
therefore,
subject
to
OMB
review
if
the
annual
effect
on
the
economy
is
$
100
million
or
more.
The
annual
cost
to
the
oil
and
gas
industry
will
easily
exceed
$
100
million
and
will
likely
be
several
times
greater,
which
is
not
in
accordance
with
Executive
Order
12866.
EPA
Response:
EPA
disagrees
with
the
commenters
assertion
that
this
rule
will
easily
exceed
$
100
million
and
thus,
is
not
in
accordance
with
Executive
Order
12866.
This
rule,
promulgated
herein,
is
solely
postponing
the
permit
deadline
for
small
oil
and
gas
construction
activities.
If,
two
years
from
now,
EPA
determines
that
certain
additional
storm
water
controls
are
necessary
for
small
oil
and
gas
related
construction
activities,
and
those
activities
have
an
annual
effect
on
the
economy
of
$
100
million
or
more,
EPA
plans
to
provide
for
OMB
review.
I­
E1­
023
I­
E1­
035
I­
E1­
057
Comment
Summary
3
EPA
incorrectly
stated
that
only
a
few
oil
and
gas
drilling
sites
actually
disturb
more
than
one
acre
of
land.
Virtually
all
sites
are
larger
than
one
acre,
but
smaller
than
five
acres.
Therefore,
all
future
drilling
locations
would
be
subject
to
the
storm
water
regulations.
In
the
EPA
cost
analysis
of
the
Phase
II
program,
it
estimated
that
the
number
of
construction
starts
would
be
approximately
130,000
units.
But,
none
of
these
units
were
oil
and
gas
facilities.
Oil
and
gas
facilities
alone
would
increase
the
number
of
units
by
25
percent
with
a
third
of
that
total
coming
from
the
two
states
of
Texas
and
Oklahoma
where
EPA
Region
6
must
handle
the
administrative
burdens.
The
ultimate
effect
of
this
could
be
staggering.
EPA
Response:
EPA
acknowledges
that
a
far
greater
number
of
small
oil
and
gas
related
construction
activities
will
be
impacted
by
the
Phase
II
rule
than
had
been
estimated
during
the
rulemaking
process.
Specifically
to
address
this
concern,
EPA
has
postponed
the
permit
deadline
for
these
facilities
for
two
years
to
allow
EPA
to
better
analyze
storm
water
control
from
this
sector.
I­
E1­
023
I­
E1­
026
I­
E1­
030
Comment
Summary
4
We
think
it
is
an
appropriate
action
to
postpone
the
permit
deadline
to
further
evaluate
and
resolve
the
various
issues
including
the
lack
of
an
economic
impact
analysis
of
the
Phase
II
rules
on
oil
and
gas
industry,
the
impact
on
the
national
economy,
and
small
businesses.
Consideration
of
any
additional
regulation
must
be
based
on
studies
designed
to
determine
whether
or
not
such
regulation
is
warranted
from
a
technical,
practical,
and
economic
basis.
EPA
Response:
EPA
acknowledges
the
commenters
statement
and
is
postponing
the
permit
deadline
for
those
small
construction
activities
associated
with
oil
and
gas
activities
described
in
the
new
40
CFR
122.26(
e)(
8).
I­
E1­
022
I­
E1­
035
I­
E1­
039
Comment
Summary
5
EPA
assumed
that
the
Phase
II
rule
would
affect
few
if
any
oil
and
gas
facilities,
and
therefore
EPA
did
not
include
oil
and
gas
exploration
sites
in
the
Economic
Analysis
of
the
Phase
II
rule.
The
notice
states
that
EPA
recently
learned
from
the
Department
of
Energy
that
there
are
30,000
oil
and
gas
starts
per
year,
most
of
which
affect
more
than
one
acre.
AGA
would
like
to
draw
EPAs
attention
to
a
similar
lack
of
information
about
natural
gas
pipeline
and
distribution
projects
in
the
Phase
II
Economic
Analysis.
EPA
may
have
also
assumed
that
few
of
these
projects
would
be
affected,
but
in
fact
we
estimate
that
our
190
members
will
have
a
total
of
about
20,000­
30,000
small
pipeline
and
distribution
projects
per
year
that
will
affect
between
one
and
five
acres.
EPA
Response:
As
part
of
the
Phase
II
rulemaking,
the
Agency
evaluated
many
facets
of
construction
and
construction­
related
activity
associated
with
residential
and
commercial
building,
including
utility
line
construction.
Small
construction
associated
with
natural
gas
distribution
lines
was
evaluated
during
Phase
II
rulemaking,
with
costs
of
such
included
in
the
Phase
II
Economic
Analysis.
I­
E1­
043
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
2
March
2003
Page
2
Comment
Summary
6
If
the
oil
and
gas
industry
was
subject
to
the
NPDES
permitting
process
the
cost
of
drilling
oil
and
natural
gas
wells
would
increase
markedly.
EPA
Response:
EPA
recognizes
the
concerns
expressed
by
those
in
the
construction
and
oil
and
gas
industries
that
NPDES
permitting
requirements
may
impose
burdens
on
them.
To
the
extent
that
these
concerns
are
related
to
construction
that
will
disturb
at
least
five
acres
of
total
land
area,
or
will
disturb
less
than
five
acres
but
is
part
of
a
common
plan
of
development
that
will
ultimately
disturb
five
acres
or
more,
this
action
has
no
impact
on
any
requirements
that
might
impose
burdens.
EPA
did
not
propose
to
take
any
action
with
respect
to
such
"
large"
construction
activity,
and
did
not
seek
comment
on
any
such
action.
EPA
declines
to
respond
to
comments
relating
to
such
activity.
To
the
extent
that
these
concerns
are
related
to
small
construction
activity
as
described
in
40
CFR
§
122.26(
b)(
15),
this
action
merely
postpones
the
deadline
for
permit
coverage
for
certain
operators.
This
action
does
not
create
any
additional
burdens.
The
potential
impact
of
compliance
with
the
CGP
on
activities
described
in
the
new
40
CFR
§
122.26(
e)(
8)
will
be
the
subject
of
analysis
to
be
conducted
during
the
two
year
stay
of
the
Phase
II
rule's
applicability.
The
Agency
will
not
make
conclusions
regarding
impacts
until
such
analysis
has
been
performed.
In
addition,
to
further
ease
any
potential
burdens
on
oil
and
gas
operators,
EPA
intends
to
identify
appropriate
best
management
practices
specific
to
oil
and
gas
exploration,
production,
processing
or
treatment
operations,
or
transmission
facilities
during
the
2
year
permitting
stay.
I­
E1­
038
I­
E1­
066
I­
E1­
068
I­
E1­
070
I­
E2­
001
Comment
Summary
7
In
its
decision
to
propose
a
delay,
it
is
obvious
that
EPA
misjudged
the
impact
and
burden
of
imposing
Phase
II
requirements
resulting
in
unnecessary
costs
and
delays.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
026
I­
E1­
030
Comment
Summary
8
My
company
is
not
in
a
position
to
deal
with
the
extra
costs
and
burdens
associated
with
additional
storm
water
permitting
associated
with
drilling
my
wells.
EPA
Response:
See
response
to
Comment
Summary
6.
The
Agency
notes
that
economic
impacts
on
small
businesses
are
always
a
factor
on
whether
its
rules
are
promulgated,
and
will
likewise
be
for
this
rule.
I­
E1­
031
Comment
Summary
9
The
impact
of
imposing
such
permit
requirements
will
serve
only
to
delay
drilling
and
drive
up
energy
costs,
and
exacerbate
an
already
tenuous
domestic
energy
supply
situation.
EPA
Response:
See
response
to
Comment
Summary
6.
EPA
notes
the
objective
of
the
NPDES
permitting
program
is
to
protect
and
improve
water
quality
in
waters
of
the
US.
There
are
many
economic
and
health
benefits
associated
with
clean
water
and
that
all
stakeholders
must
share
the
burden
of
protecting
our
nation's
surface
waters.
I­
E1­
051
Comment
Summary
10
Under
the
new
Phase
II
rules,
eighty
to
eighty
five
percent
of
the
wells
drilled
in
New
York
would
require
a
storm
water
discharge
permit.
None
of
the
oil
and
gas
wells
drilled
annually
in
New
York
disturb
five
acres
or
more
but
the
vast
majority
of
new
wells
in
our
state
would
exceed
the
one
acre
threshold.
EPA
Response:
EPA
acknowledges
many
oil
and
gas
exploration
sites
will
be
between
one
and
five
acres.
I­
E1­
060
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
3
March
2003
Page
3
Comment
Summary
11
Few,
if
any,
of
the
operators
have
staff
qualified
to
develop
storm
water
pollution
prevention
plans.
Any
work
associated
with
the
development
of
these
plans
would
have
to
be
contracted
out
to
consultants.
The
costs
to
complete
this
work
are
new
expenses,
which
have
not
previously
incurred.
Consulting
costs
for
T&
E
inspections:
$
500
per
well;
Hiring
contractor
to
conduct
maintenance
and
inspections
until
70%
revegetation:
$
450/
day,
and
assuming
one
inspection
every
two
weeks,
not
including
inspections
after
major
rain
events:
$
11,700
per
well
per
year.
EPA
Response:
See
response
to
Comment
Summary
6.
Prevention
of
erosion
and
sediment
is
a
skill
that
should
be
familiar
to
any
construction
operator.
EPA
notes
that
the
construction
operator,
not
the
oil
and
gas
well
drilling
/
extraction
activity
operator,
is
the
logical
choice
for
being
the
permittee,
just
as
the
builder
of
a
chemical
factory
is
the
operator
(
for
permitting
purposes)
during
the
construction
phase,
not
the
operator
of
the
plant
once
manufacturing
begins.
I­
E1­
023
I­
E1­
044
I­
E1­
060
Comment
Summary
12
The
requirements
for
Storm
Water
Pollution
Prevention
Plans
(
SWPPP)
add
many
new
requirements
that
significantly
increase
the
paper
and
cost
burden
of
compliance
without
associated
environmental
benefit.
These
requirements
have
also
introduced
delays
into
a
time
sensitive
process.
Some
of
these
requirements
are:
defining
a
licensed
engineer
as
an
example
of
'
qualified
personnel'
for
Best
Management
Practices
(
BMP)
inspections
infers
a
level
of
expertise
that
is
unnecessary
for
this
permit.
EPA
Response:
See
response
to
Comment
Summary
6.
The
proposed
permit
defines
qualified
personnel
as
"
a
person
knowledgeable
in
the
principles
and
practice
of
erosion
and
sediment
controls."
While
a
licensed
engineer
is
provided
as
an
example
of
such,
it
is
not
meant
to
be
exclusive
of
others.
I­
E1­
034
I­
E1­
047
I­
E1­
052
Comment
Summary
13
The
requirement
to
obtain
permit
coverage
creates
the
potential
for
delay
in
drill
rig
scheduling,
loss
of
leases,
and
loss
of
reserves,
the
impacts
of
which
have
not
been
considered.
If
made
broadly
applicable
to
oil
and
gas
development
through
the
CGP,
these
requirements
have
the
potential
to
be
used
to
delay
or
defeat
exploration
and
production
of
oil
and
gas
leases
on
private
lands,
thereby
causing
the
leases
to
be
lost,
along
with
recovery
of
U.
S.
oil
and
gas
reserves.
EPA
Response:
See
response
to
Comment
Summary
6.
While
today's
action
does
nothing
to
affect
the
processes
for
challenging
an
NPDES
permit,
challenges
cannot
be
used
arbitrarily
to
delay
or
defeat
eligible
projects
from
occurring.
I­
E1­
026
I­
E1­
028
I­
E1­
070
Comment
Summary
14
In
addition,
surface
owners,
opposed
to
oil
and
gas
activities
on
land
where
the
mineral
interest
is
owned
by
another
person
may
try
to
use
these
requirements
to
delay
or
defeat
oil
and
gas
projects.
EPA
Response:
See
response
to
Comment
Summary
13.
I­
E1­
028
Comment
Summary
15
There
is
little
gain
from
these
changes
and
much
to
lose
in
the
way
of
added
costs
and
regulatory
burden.
Most
drilling
contractors
told
us
that
90%
of
the
wells
drilled
in
2001
would
not
be
drilled
if
they
had
to
comply
with
the
massive
paperwork
requirements
mandated
under
the
storm
water
regulations.
In
an
effort
to
be
conservative,
we
reduced
that
to
a
70%
reduction
in
drilling
for
independents
and
40%
for
major
oil
companies.
Of
the
38,527
wells
drilled
in
2001,
25,034
would
not
be
drilled
in
future
years.
The
impact
to
the
drilling
industry
would
be
devastating!
We
estimate
that
$
8,053,100,000
would
not
be
spent
on
drilling
activities
that
were
spent
in
2001.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
023
I­
E1­
070
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
4
March
2003
Page
4
Comment
Summary
16
Stroud
[
oil
company]
plans
to
drill
22
wells
in
2003.
Implementing
the
requirement
for
operators
to
obtain
NPDES
permits
for
activities
disturbing
over
one
acre
would
require
Stroud
to
obtain
coverage
under
the
general
permit
for
every
well
it
drills,
as
all
drilling
locations,
including
access
roads,
are
greater
than
one
acre
in
disturbance.
Estimated
additional
costs
of
complying
with
the
NPDES
Phase
II
requirements
are
as
follows:
Erosion
control
measures
for
drilling
operations:
$
5000
per
well.
Using
the
above
numbers
for
a
22
well
per
year
drilling
program
will
cost
Stroud
$
17,200
per
well,
for
an
additional
$
378,400
annually
to
comply
with
the
Phase
II
regulations.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
044
Comment
Summary
17
There
would
be
a
dampening
of
economic
activity
vital
to
state
and
federal
coffers.
States
that
have
oil
and
gas
production
taxes
would
feel
the
decline.
The
State
of
Texas
 
which
is
projecting
a
$
10
billion
shortage
this
year
without
considering
this
dramatic
drop
in
drilling
and
production
 
would
have
oil
and
gas
severance
taxes
decline
$
327,308,708
during
the
first
year.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
023
I­
E1­
070
Comment
Summary
18
During
this
two­
year
period,
I
strongly
urge
EPA
to
consider
the
full
scope
of
the
exemption
in
Section
402(
1)(
2)
of
the
Clean
Water
Act
to
develop
a
more
appropriate
model
for
oil
and
gas
activities
with
respect
to
economic
and
legal
impacts.
EPA
Response:
EPA
intends
to
evaluate
the
scope
of
§
402(
l)(
2)
over
the
next
2
years.
I­
E1­
039
Comment
Summary
19
Shallow
oil
wells
in
the
Northwest
region
of
the
Commonwealth
are
currently
being
aggregated
into
the
Phase
I
over
five
acre
permitting
process
even
though
the
individual
well
sites
do
not
even
reach
the
one
acre
Phase
II
threshold.
Wells
in
this
region
have
gone
from
having
a
permitting
process
which
takes
from
30­
45
days
to
becoming
a
paperwork
marathon
of
regulatory
hoops
and
public
hearings
lasting
from
as
long
as
180
days,
and
in
one
case
over
a
full
calendar
year!
EPA
Response:
See
the
"
common
plan"
section
of
the
preamble
to
this
rule.
Pennsylvania
is
authorized
to
administer
the
NPDES
program,
thus
EPA
cannot
comment
on
the
permitting
process
employed
there,
including
the
Commonwealth's
interpretation
of
common
plan
of
development
or
sale.
I­
E1­
030
Comment
Summary
20
We
feel
the
postponement
is
necessary
due
to
the
realization
of
the
overwhelming
number
of
oil
&
gas
drilling
sites
(
approximately
30,000)
that
would
be
affected
on
a
yearly
basis
by
the
Phase
II
rules.
The
shear
number
of
permits
that
EPA
estimated
during
the
regulatory
development
process
was
significantly
understated.
EPA
Response:
See
response
to
Comment
Summary
3.
I­
E1­
030
I­
E1­
035
Comment
Summary
22
The
Phase
II
rules
would
add
an
additional
time­
consuming
layer
of
regulation
to
a
developer's
attempt
to
get
a
well
in
while
the
rig
or
other
equipment
is
available.
This
additional
delay
would
negatively
affect
an
oil
and
gas
developer's
business
decisions.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
061
Comment
Summary
25
The
economic
impact
to
the
oil
and
gas
industry,
especially
the
small
operator,
must
be
considered
prior
to
implementation.
Stroud
Oil
Company
makes
every
effort
to
conduct
all
its
operations
in
an
environmentally
sound
manner,
and
feels
that
additional
restrictions
will
only
lead
to
additional
costs
without
the
incremental
benefit
to
the
environment.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
044
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
5
March
2003
Page
5
Comment
Summary
26
Expanding
the
NPDES
permitting
program
to
include
oil
and
gas
operations
impacting
one
to
five
acres
of
land
­
and
in
some
cases
even
less
than
one
acre
­
would,
at
best,
significantly
impede,
and
at
worst,
have
a
devastating
impact
on,
oil
and
gas
production
in
the
region.
Not
only
would
it
delay
operations
for
months,
but
it
would
significantly
increase
the
costs
for
operators,
especially
for
the
small
operators
who
do
not
have
the
necessary
regulatory
expertise
and
who
will
therefore
be
required
to
hire
outside
consultants.
That
will,
without
question,
have
a
significant
impact
on
Ohio's
oil
and
gas
industry.
EPA
Response:
See
responses
to
Comment
Summaries
6,
9
and
11.
I­
E1­
042
Comment
Summary
27
In
2000,
a
total
of
31,732
exploratory
and
production
wells
were
drilled
 
over
10,000
in
Texas
and
Oklahoma.
To
meet
future
natural
gas
demand,
the
National
Petroleum
Council
estimates
that
the
number
of
natural
gas
wells
alone
needs
to
increase
to
approximately
48,000
wells
annually.
EPA
Response:
EPA
acknowledges
the
commenters
estimation
of
the
number
of
wells
drilled
in
2000
and
future
wells.
EPA
will
evaluate
data
such
as
that
provided
by
the
commenter
when
evaluating
the
impact
of
the
permitting
requirements
on
small
oil
and
gas
related
construction
activities.
I­
E1­
026
I­
E1­
030
I­
E1­
048
Comment
Summary
28
If
the
oil
and
gas
industry
was
subject
to
the
NPDES
permitting
process,
permitting
delays
would
deter
and
delay
the
development
of
domestic
oil
and
natural
gas
resources.
This
delay
would
be
a
disincentive
to
energy
production
at
a
time
when
creating
such
disincentives
would
appear
to
be
contrary
to
national
energy
policy.
It
is
estimated
that
in
the
first
year
U.
S.
oil
production
would
decline
by
1,169,688
barrels
per
day
and
natural
gas
production
would
drop
by
15,773,600
mcf
per
day.
It
is
estimated
that
the
effect
on
U.
S.
drilling
will
be
$
8
billion
annually
and
$
90
billion
on
lost
revenue
from
domestic
oil
and
gas
that
would
not
be
produced
because
of
the
lack
of
drilling.
The
United
States
economy
would
lose
about
$
25
billion
in
oil
production,
which
would
have
to
be
replaced
with
foreign
oil,
and
$
65
billion
in
natural
gas
production.
We
projected
that
the
federal
government
would
lose
about
$
7,458,754,000
during
the
first
year
just
from
the
revenue
not
generated
from
the
drop
in
production
of
oil
and
natural
gas.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
9.
I­
E1­
023
I­
E1­
026
I­
E1­
030
I­
E1­
038
I­
E1­
039
I­
E1­
042
I­
E1­
048
I­
E1­
051
I­
E1­
061
I­
E1­
066
I­
E1­
068
I­
E1­
069
I­
E1­
070
Comment
Summary
29
An
issue
to
address
is
the
realization
of
the
negative
impact
on
oil
&
gas
operations
and
its
impediment
of
vital
domestic
energy
development
and
thus
negatively
impacting
our
national
security.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
9.
I­
E1­
035
I­
E1­
070
Comment
Summary
30
As
time
passes,
oil
and
gas
production
would
continue
its
rapid
decline
at
a
more
rapid
pace.
Imports
would
increase,
and
the
citizens
of
the
United
States
would
have
less
control
of
our
energy
and
economic
future.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
9.
I­
E1­
023
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
6
March
2003
Page
6
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
7
March
2003
Page
7
Comment
Summary
31
In
New
York
State
the
program
proposes
to
extend
the
'
regulated
MS4
status
to
every
MS4
in
the
State
and
to
require
a
public
hearing
provision
for
every
permit
over
which
the
MS4
has
jurisdiction.
This
includes
all
Phase
II
permits
that
would
be
issued
by
the
State
Department
of
Environmental
Conservation
(
DEC).
Thus
a
General
Permit
as
envisioned
by
EPA,
which
normally
would
not
require
a
costly
and
dilatory
public
hearing
process,
will
become
a
General
Permit
for
which
public
hearings
must
be
provided.
EPA
Response:
Today's
action
has
no
bearing
on
how
an
authorized
State
administers
a
general
permit.
I­
E1­
052
Comment
Summary
32
Both
LMOGA
and
LIOGA
strongly
urge
the
EPA
to
act
quickly
on
this
issue.
The
Louisiana
Department
of
Environmental
Quality
(
LDEQ)
has
EPA
primacy
for
this
activity
in
Louisiana
and
adopted
their
permit
on
October
4,
2003.
The
LDEQ
permit
is
effective
on
March
1,2003.
The
LDEQ
has
indicated
that
it
is
willing
to
grant
a
similar
compliance
extension
for
oil
and
gas
facilities
in
Louisiana
once
a
final
EPA
action
is
taken.
It
is
therefore
imperative
for
the
EPA
proposed
extension
to
have
a
practical
effect
in
Louisiana
that
a
final
EPA
action
be
adopted
and
communicated
to
the
LDEQ
well
before
March
1,2003
to
allow
the
LDEQ
to
take
similar
appropriate
action.
EPA
Response:
Acknowledged.
I­
E1­
036
Comment
Summary
33
Independents
have
had
their
staffs
cut
to
the
bone.
There
is
no
fat
left
to
cut.
Staff
members
are
doing
the
jobs
of
two
or
three
staff
members
20
years
ago.
Independents
do
not
have
specialists
that
know
the
`
ins
and
outs'
of
acquiring
a
federal
permit,
especially
when
they
require
endangered
species
and
archeological
inspections.
They
will
have
to
hire
a
consultant.
The
Alliance
estimates
that
it
could
take
up
to
six
months
to
obtain
a
federal
drilling
permit
if
we
have
to
get
the
U.
S.
Fish
and
Wildlife
Department
to
conduct
their
endangered
species
survey
and
hire
an
archeologist
to
perform
his
study.
The
Fish
and
Wildlife
Department
is
not
adequately
staffed
to
handle
the
increase
in
permits,
and
archeologists
will
not
let
non­
archeologists
use
their
libraries.
Many
smaller
companies
will
find
the
new
procedures
too
frustrating
and
time
consuming
and
just
not
drill
many
of
the
wells
they
had
planned.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
182.
I­
E1­
023
Comment
Summary
34
EPA
did
not
address
the
potential
for
redundant,
and
potentially
conflicting,
regulation.
EPA
must
evaluate
current
requirements
applicable
to
transmission/
pipelines
under
other
regulatory
programs.
Some
of
these
requirements
are:
Pipelines
in
wetlands
or
at
river
crossings
must
comply
with
Corps
of
Engineer
nationwide
permits,
or
obtain
an
individual
permit,
which
do
not
allow
for
pollution
of
water
bodies;
pipeline
activities
subject
to
Federal
Energy
Regulatory
Commission
(
FERC)
permitting
are
required
to
comply
with
FERC's
'
Upland
Erosion
Control,
Revegetation
and
Maintenance
Plan'
and
'
Wetland
and
Water
body
Construction
&
Mitigation
Procedures.'
EPA
Response:
See
responses
to
Comment
Summaries
6
and
182.
Obtaining
coverage
under
a
CWA
§
404
permit
issued
by
the
Corps
of
Engineers
is
sufficient
such
that
a
separate
NPDES
storm
water
permit
is
not
required
(
unless
there
is
also
a
discharge
from
at
least
one
acre
of
non­
wetland
earth
not
otherwise
addressed
by
the
§
404
permit).
I­
E1­
067
Comment
Summary
36
Coverage
of
storm
water
discharges
under
the
Phase
II
regulations
is
unnecessary
to
assure
protection
of
the
environment
since
site
preparation
activities
at
oil
and
gas
sites
in
West
Virginia,
and
we
believe
in
most
other
states,
are
already
regulated
for
this
purpose.
Control
of
storm
water
discharges
from
oil
and
gas
drilling
sites
in
West
Virginia
is
currently
covered
by
a
permit
required
prior
to
beginning
preparation
of
a
site
and
is
issued
by
the
West
Virginia
Office
of
Oil
and
Gas
(
OOG).
See
W.
Va.
Code
§
22­
6­
6(
a)(
quoted
above).
This
process
has
been
effective
in
the
past
to
assure
protection
of
the
environment
in
a
manner
that
does
not
unduly
burden
the
business
of
oil
and
gas
development.
...[
EPA]
will
find
that
the
appropriate
controls
necessary
to
address
storm
water
discharges
from
oil
and
gas
sites
undergoing
construction
activity
in
West
Virginia
are
already
covered
by
the
permit
issued
by
the
OOG.
Before
a
permit
is
issued
allowing
a
well
to
be
drilled,
an
Erosion
and
Sediment
Control
Plan
which
meets
the
requirements
of
the
W.
Va.
Erosion
and
Sediment
Control
Field
Manual
prepared
by
the
OOG
must
be
submitted
to
and
approved
by
the
OOG.
See
W.
Va.
Code
§
22­
6­
6(
d).
Further,
the
BMPs
identified
by
the
W.
Va.
Erosion
and
Sediment
Control
Field
Manual,
in
contrast
to
those
that
may
be
used
in
the
general
construction
industry,
are
specific
to
oil
and
gas
operations.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
182.
I­
E1­
061
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
8
March
2003
Page
8
Comment
Summary
39
The
earth
disturbance
features
of
these
projects
are
already
adequately
regulated
by
State
agencies
where
they
occur.
Unlike
the
construction
industry,
which
may
not
be
regulated
at
the
State
level,
all
facets
of
the
oil
and
gas
industry
are
already
abundantly
regulated
by
state
&
federal
agencies.
To
impose
another
layer
of
regulation
by
enacting
Phase
I
and
Phase
II
of
the
NPDES
on
activities
such
as
described
is
not
only
unnecessary
but
counter
productive
to
the
oil
and
gas
industry
and
those
it
serves.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
182.
I­
E1­
046
I­
E1­
052
Comment
Summary
42
Oversight
and
protections
are
already
in
place
due
to
the
fact
that
each
and
every
oil
and
gas
well
site
in
New
York
is
inspected
by
our
staff
prior
to
the
issuance
of
a
well
drilling
permit.
Staff
review
the
conditions
present
at
the
site,
assess
erosion
and
sedimentation
control
issues
and
impose
special
permit
conditions
which
may
require
the
use
of
best
management
practices
to
address
site
specific
concerns.
All
well
sites
must
be
reclaimed
using
seed
and
mulch,
and
in
some
cases,
the
planting
of
trees
and
shrubs
may
be
required.
EPA
Response:
See
responses
to
Comment
Summaries
6,
31
and
182.
I­
E1­
060
Comment
Summary
43
Drilling
and
Workover
Permits
required
by
the
various
states
also
require
the
use
of
BMPs
for
erosion
and
sediment
controls.
The
proposed
requirement
to
obtain
a
Storm
water
Permit
for
Oil
and
Gas
Construction
Activities
is
only
a
duplication
of
permitting
and
doubling
of
the
permitting
fees
and
permit
approval
periods.
CNR
will
incur
excessive
costs
due
to
the
additional
permit
fees
imposed
by
the
States
and
an
undetermined
cost
of
waiting
for
additional
State
approvals
(
15
to
60
days)
of
the
Storm
water
Permits.
These
additional
permit
fees
(
averaging
$
300
for
each
one
to
three
acre
project)
are
expected
to
exceed
$
150,000
per
year
for
CNR
alone.
CNR
firmly
believes
that
the
additional,
duplicative
Storm
water
Permitting
for
Oil
and
Gas
Construction
Activities
is
unnecessary,
not
beneficial
to
the
environment
and
will
cost
CNR
precious
resources
that
it
could
have
used
to
benefit
the
Company
and
the
environment.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
182.
I­
E1­
059
Comment
Summary
44
In
California
alone,
there
are
thousands
of
small
natural
gas
transportation
and
distribution
construction
projects
annually.
Many
of
these
projects
occur
in
paved
areas,
with
a
short
construction
duration
and
reduced
exposure
to
disturbed
soil
and
therefore
present
extremely
low
potential
for
adverse
impacts
to
surface
waters
from
their
storm
water
runoff.
The
Best
Management
Practices
already
in
use
and
appropriate
for
these
construction
projects
effectively
protect
surface
waters.
The
extension
proposed
would
provide
time
for
EPA
to
review
these
practices.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
182.
I­
E1­
057
Comment
Summary
45
There
are
reclamation
standards
in
Ohio
enforced
by
the
Department
of
Natural
Resources,
Division
of
Mineral
Resources
Management,
designed
to
quickly
re­
seed
and
re­
sod
impacted
areas
to
prevent
erosion
and
runoff
affects.
Accordingly,
the
Association
believes
that
the
need
to
expand
the
NPDES
permitting
program
to
include
oil
and
gas
operations,
including
any
claimed,
additional
benefits
that
such
a
program
would
offer
to
the
environment,
must
be
reviewed
and
weighed
against
the
costs
as
required
under
federal
law.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
182.
I­
E1­
042
Comment
Summary
46
When
calculating
the
economic
impact
of
proposed
federal
programs,
we
do
not
believe
EPA
has
taken
into
account
how
these
programs
will
fit
into
delegated­
State
programs
and
the
costs
thereby
entailed.
In
Pennsylvania,
for
instance,
what
EPA
envisioned
as
a
low­
economic
impact
Storm
Water
Management
General
Permit,
became,
during
Phase
I,
a
required
individual
Permit
on
many
of
the
Commonwealth's
watersheds.
Acquiring
these
Individual
Permits
has
been
very
time­
consuming
and
expensive
due
to
the
public
hearing
and
appeal
process
attached
to
the
Individual
Permit
Application
process.
PGE
can
offer
documentation
that
these
permit
applications
often
take
up
to
eight
(
8)
months
to
get
approval
often
for
a
few
wells
which
individually
will
involve
1/
3rd
to
½
acre
disturbance
with
20
or
more
acres
of
undisturbed
area
between
them.
EPA
Response:
See
response
to
Comment
Summary
6.
Authorized
States
implement
the
NPDES
program
as
they
see
fit.
There
is
no
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
9
March
2003
Page
9
Federal
mandate
to
use
individual
permits.
They
are
usually
employed
when
the
Permitting
Authority
believes
a
general
permit
is
not
protective
enough
of
water
quality.
I­
E1­
052
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
10
March
2003
Page
10
Comment
Summary
47
We
request
that
EPA
clarify
in
its
final
rule
that
'
transmission,'
for
purposes
of
the
permit
deadline
delay,
includes
interstate
and
intrastate
'
pipelines'
that
transport
oil
and
gas.
We
seek
clarification
that
construction
activities
on
all
transmission
(
i.
e.,
pipeline)
activities
are
included
in
the
two­
year
delay
and
be
a
part
of
EPA's
evaluation
for
Phase
II
implementation.
This
interpretation
would
be
consistent
with
the
Department
of
Transportation's
use
of
the
term
'
transmission
facilities'
within
their
jurisdiction,
as
evidenced
in
49
C.
F.
R.
§
§
192
and
195.
The
remote,
disperse
and
sporadic
nature
of
small
pipeline
construction
projects
is
similar
to
oil
and
gas
activities
clearly
covered
under
the
delay
rule.
Our
discussions
with
the
EPA
staff
indicate
that
'
pipeline'
construction
would
be
included
in
the
postponement.
The
language
utilized
by
EPA
in
the
Federal
Register
notice
is
somewhat
unclear
on
the
extent
of
'
transmission'
operations.
EPA
Response:
EPA
agrees
with
the
commenters
assertion
that
the
term
"
transmission"
as
used
in
the
rule
should
include
interstate
and
intrastate
pipelines
that
transport
oil
and
gas.
The
Agency
acknowledges
that
while
it
is
not
codifying
definitions
of
certain
applicable
terms
codified
by
the
U.
S.
Department
of
Transportation
(
DOT),
EPA
does
believe
that
its
interpretation
of
the
term
"
transmission"
or
"
transmission
pipelines"
is
consistent
with
those
of
DOT.
I­
E1­
022
I­
E1­
027
I­
E1­
037
I­
E1­
040
I­
E1­
041
I­
E1­
043
I­
E1­
047
I­
E1­
057
I­
E1­
062
I­
E1­
064
Comment
Summary
48
We
believe
that
the
provision
of
the
Clean
Water
Act
adopted
in
1987
 
Section
402(
l)(
2)
 
excludes
uncontaminated
stormwater
from
oil
and
natural
gas
exploration
and
production
facilities
from
the
NPDES
permitting
process.
And,
since
the
municipal
and
industrial
storm
water
discharges
subsection
 
Section
402(
p)
 
is
directed
toward
permitting
of
storm
water
discharges,
it
does
not
override
this
exclusion.
During
the
two­
year
assessment
period
this
question
needs
to
be
fully
reexamined.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
026
I­
E1­
030
Comment
Summary
49
We
request
that
EPA
clarify
the
language
that
EPA
has
proposed
for
Section
122.26(
e)(
8)
to
make
clear
that
persons
constructing
oil
and
gas
facilities
are
not
required
to
apply
for
a
storm
water
permit
until
March
10,
2005.
Without
this
clarifying
change,
the
extension
that
the
proposed
rule
provides
will
have
little
if
any
impact
and
the
oil
and
gas
industry
will
be
required
to
comply
with
general
permit
requirements
and
file
thousands
of
NOIs
and
SWPPPs
unnecessarily.
EPA
Response:
EPA
believes
the
regulatory
language
as
proposed
is
sufficiently
clear.
Operators
of
small
construction
projects
described
in
the
new
§
122.26(
e)(
8)
will
not
need
permit
authorization
until
March
10,
2005.
I­
E1­
057
Comment
Summary
51
Under
the
Supplementary
Information
in
the
proposal,
examples
of
regulated
entities
include
'
construction
site
operators
associated
with
oil
and
gas
construction
projects.'
Questar
believes
that
this
statement
logically
covers
natural
gas
distribution
activities,
but
the
proposed
regulatory
language
excludes
only
'
small
construction
activity
as
oil
and
gas
exploration,
production,
processing
and
treatment
operations
or
transmission
facilities'
as
part
of
the
postponement.
If
the
omission
of
natural
gas
distribution
sites
was
an
oversight,
Questar
urges
the
Agency
to
include
them
in
the
final
document.
EPA
Response:
EPA
disagrees
with
the
commenters
assertion
that
natural
gas
distribution
sites
should
be
included
in
the
two
year
postponement.
The
preamble
distinguishes
between
transmission
facilities
(
that
are
included
in
the
postponement)
and
distribution
facilities
(
that
are
not
included).
I­
E1­
049
Comment
Summary
52
Prior
to
publication
of
notice
of
the
proposed
Fact
Sheet
and
CGP
and
the
proposed
deferral,
EPA
had
not,
in
any
rule
or
guidance
published
in
the
Federal
Register,
clearly
articulated
its
interpretation
that
construction
activities
at
oil
and
gas
operations
are
not
exempt
under
section
402(
1)(
2)
of
the
CWA.
It
had,
however,
stated
this
interpretation
in
an
internal
memorandum
in
1992
as
well
as
in
a
letter
to
an
oil
and
gas
industry
group
in
2001.
EPA
Response:
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
11
March
2003
Page
11
See
response
to
Comment
Summary
18.
I­
E1­
028
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
12
March
2003
Page
12
Comment
Summary
53
EPA
should
note
that
it
does
not
need
to
resolve
the
statutory
interpretation
question
in
order
to
clarify
the
scope
of
its
proposed
two­
year
deadline
extension.
These
are
two
separate
questions:
(
1)
what
does
EPA
intend
to
include
in
the
two­
year
Phase
II
storm
water
permit
postponement;
and
(
2)
what
does
EPA
believe
Congress
intended
to
exempt
from
storm
water
regulation?
The
agency
should
clarify
now
that
natural
gas
distribution
projects
qualify
for
the
two­
year
postponement,
so
that
it
will
have
the
time
to
evaluate
the
second
question
­­
whether
such
projects
should
be
exempt.
EPA
can
take
action
on
the
first
question
to
postpone
the
deadline
for
distribution
based
on
sound
policy
grounds
and
on
the
ground
that
application
of
the
existing
Phase
II
rule
to
natural
gas
distribution
projects
is
not
supported
by
the
existing
rulemaking
record.
It
can
take
additional
time
to
resolve
the
second
question.
EPA
Response:
See
responses
from
Comment
Summaries
18
and
51.
I­
E1­
043
Comment
Summary
54
As
the
transmission
segment
of
the
oil
and
gas
industry
implements
DOT
required
Pipeline
Integrity
Management
and
the
requirements
of
the
new
Pipeline
Safety
Act,
pipeline
associated
disturbances
are
likely
to
increase.
EPA
must
consider
these
additional
potential
sites
during
its
evaluation
of
impacts
of
Phase
II
rules.
EPA
Response:
During
its
analyses,
EPA
will
look
at
impacts
to
all
entities
affected
by
the
rule.
I­
E1­
067
Comment
Summary
55
We
also
request
EPA
to
clarify,
in
the
final
rule,
that
maintenance
to
existing
facilities
are
currently
considered
integral
to
industrial
activities
and
are
therefore
not
construction
activities.
As
industrial
activities
associated
with
the
oil
and
gas
industry,
they
are
excluded
from
the
NPDES
Storm
Water
permitting
requirements,
per
33
U.
S.
C.
§
1342(
l)(
2).
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
062
Comment
Summary
56
Kinder
Morgan
requests
clarification
regarding
whether
or
not
EPA
considered
a
different
standard
for
revegetation
or
for
closure
in
arid
or
semi­
arid
environments.
The
practicality
of
maintaining
compliance
in
semi­
arid
and
arid
environments
until
70%
revegetation
(
for
complete
stabilization)
is
a
serious
issue.
In
these
regions,
revegetation
cannot
occur
without
either
natural
precipitation
or
supplemental
watering.
It
frequently
is
not
practical
to
water
even
small
disturbances
because
of
remote
locations
or
water
supply
limitations.
For
example,
water
may
not
be
locally
available
and
trucking
in
water
is
expensive
and
can
cause
additional
damage,
including
damage
to
existing
vegetation.
With
limited
rainfall,
the
reestablishment
of
vegetation
is
difficult
to
achieve.
EPA
Response:
This
comment
relates
to
the
proposed
Construction
General
Permit
not
the
proposed
oil
and
gas
extension
rule,
and
will
be
addressed
in
the
responses
to
the
proposed
Construction
General
Permit
comments.
I­
E1­
067
Comment
Summary
57
Examples
of
terms
that
should
be
consistent
in
both
the
CGP
and
the
Fact
Sheet
are:°
Common
plan
of
development
(
site
over
¼
mile
apart
considered
as
separate
projects)
 
page
6°
Final
stabilization
(
semi­
permanent
erosion
control
practices
combined
with
seeds
is
final
stabilization)
 
page
46°
Construction
(
not
including
earth
disturbing
activities
that
are
part
of
day­
to­
day
operation)
 
page
42°
Post
construction
use
(
earth
disturbance
for
maintenance
and
day­
to­
day
operations
does
not
require
a
CGP)
 
page
46
EPA
Response:
This
comment
relates
to
the
proposed
Construction
General
Permit
not
the
proposed
oil
and
gas
extension
rule,
and
will
be
addressed
in
the
responses
to
the
proposed
Construction
General
Permit
comments.
I­
E1­
047
Comment
Summary
58
For
activities
that
do
not
meet
EPA's
narrow
definition
of
'
non
contiguous'
(
i.
e.,
are
less
than
one
quarter
mile
apart)
it
is
not
clear
whether
an
oil
and
gas
operator
is
supposed
to
total
all
of
the
'
land
disturbed',
regardless
of
whether
its
disturbed
'
at
the
same
time',
or
whether
the
operator
is
required
total
all
of
the
land
that
will
be
disturbed
over
the
entire
'
common
plan'
at
any
time.
EPA
Response:
See
the
"
common
plan"
section
of
the
preamble
to
this
rule.
I­
E1­
028
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
13
March
2003
Page
13
Comment
Summary
59
The
potential
for
delay,
loss
of
leases,
and
loss
of
reserves
created
by
leasing
problems
caused
by
the
definition
of
'
operator'
under
the
permit
have
not
been
considered.
EPA
should
clarify
that
surface
owners,
mineral
owners,
royalty
owners,
working
interest
owners,
oil
and
gas
lessees,
and
JOA
non­
operators
are
not
'
operators'
for
the
purposes
of
the
CGP.
Generally,
if
permit
coverage
is
required
at
all,
it
will
by
required
only
of
the
lease
or
JOA
operator
or
the
drilling
contractor
(
sometimes
hired
on
a
'
turnkey'
basis),
or
some
combination
of
these
two
entities
depending
on
the
specifics
of
the
contractual
relationship
between
them.
If
EPA
fails
to
clarify
the
'
operator'
role
for
oil
and
gas
operations
in
a
reasonable
way,
leasing
activities­
already
difficult­
will
be
further
complicated
by
misunderstandings
and
disputes
over
who
may
or
may
not
be
responsible
for
CGP
compliance.
EPA
Response:
EPA
will
continue
to
use
the
definition
of
operator
from
the
previous
Construction
General
Permit
of
2/
17/
98
for
the
time
being.
See
63
Federal
Register,
p.
7859.
EPA
may
revisit
this
issue
when
it
issues
the
new
CGP.
I­
E1­
028
Comment
Summary
60
Among
the
issues
that
must
be
considered
with
respect
to
oil
and
gas
activities
are:
1)
Does
EPA
have
the
legal
authority
under
section
402(
1)
to
exclude
clearing,
grading
and
excavating
at
oil
and
gas
activities
from
the
scope
of
the
oil
and
gas
exemption
or
to
limit
the
scope
of
the
exemption
for
clearing,
grading,
and
excavating
activities?
2)
If
EPA
has
the
authority
to
limit
the
scope
of
the
exemption
under
section
402(
1)(
2),
is
an
acreage
threshold
on
'
land
disturbed'
the
appropriate
limitation
to
place
on
the
scope
of
the
oil
and
gas
exemption?
3)
If
limitations
other
than
acreage
threshold(
s))
are
to
be
imposed
on
the
scope
of
the
oil
and
gas
exemption,
how
will
those
criteria
be
established
and
what
are
the
legal
and
scientific
justifications
for
them?
4)
If
an
acreage
threshold
based
on
'
land
disturbed'
or
'
area
under
construction
at
the
same
time'
is
to
be
imposed,
what
is
the
appropriate
size
of
the
threshold
(
s)
for
various
oil
and
gas
activities
and/
or
locations
and
what
is
the
scientific
basis
for
these
threshold(
s))?
5)
When
does
'
land
disturbance'
or
'
area
under
construction
at
the
same
time'
begin
and
end?
6)
What
clearing,
grading
and
excavating
activities
at
oil
and
gas
sites
should
be
included
or
excluded
from
the
acreage
threshold?
7)
If
an
acreage
threshold
is
to
b
measured
against
'
common
plan',
how
is
that
term
to
be
defined
for
non­
contiguous
oil
and
gas
activities?
8)
If
an
acreage
threshold
is
to
be
measured
against
a
'
common
plan',
how
is
that
term
to
be
defined
for
contingent
future
oil
and
gas
activities?
9)
What
are
the
economic
impacts
of
the
limitations,
if
any,
to
be
placed
on
the
scope
of
the
section
402(
1)(
2)
exemption
for
oil
and
gas
exploration,
production,
processing,
and
treatment
operations
and
transmission
facilities.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
18
and
the
"
common
plan"
section
of
the
preamble
to
the
Phase
II
Rule.
I­
E1­
028
Comment
Summary
61
We
would
suggest
that
EPA
codify
the
proposed
deferral
by
(
1)
revising
the
definition
of
'
storm
water
discharge
associated
with
small
construction
activity'
in
40
CFR
122.26(
b)(
15),
and
(
2)
revising
the
permit
approval
deadline
in
40
CFR
122.26(
e)(
8)
as
follows:
Section
40
CFR
122.26(
b)(
15):
(
i)
except
as
provided
in
subparagraph
(
ii),
construction
activities
including
clearing,
grading,
and
excavating
that
result
in
land
disturbance
of
equal
to
or
greater
than
one
acre
and
less
that
five
acres.
***.
(
A)
***
(
B)***
(
ii)
In
the
case
of
construction
activities
conducted
as
oil
and
gas
exploration,
production,
processing,
and
treatment
operations
or
transmission
facilities,
storm
water
discharge
associated
with
small
construction
activities
shall
only
include
those
activities,
as
defined
in
subparagraph
(
i),
that
occur
after
March
10,
2005.
(
iii)
Any
other
construction
activity
designated
by
the
Director
***.
Section
40
CFR
122.26(
e)(
8):
(
e)
application
deadlines.***
(
8)
For
any
storm
water
discharge
associated
with
small
construction
activity
identified
in
paragraph
(
b)(
15)(
i)
of
this
section,
see
122.2
(
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.
EPA
Response:
EPA
will
consider
changes
to
other
subsections
of
40
CFR
122.26
during
the
extension
provided
by
this
rule.
This
rule,
as
finalized,
meets
EPA's
goals
for
the
time
being.
I­
E1­
057
Comment
Summary
62
Clarifying
that
dispersed
projects
that
could
have
been
interpreted
as
"
common
plan
of
development"
should
be
considered
separate
projects
would
allow
projects
with
low
water
quality
impact
concerns
to
be
treated
in
a
less
burdensome
fashion.
EPA
Response:
Refer
to
the
"
common
plan"
section
of
the
preamble
to
the
Phase
II
Rule.
I­
E1­
047
Comment
Summary
63
In
addition,
clarifying
that
industrial
earth
disturbance
activities
(
e.
g.,
maintenance,
site
remediation,
and
demolition)
that
are
not
connected
with
the
construction
of
a
structure
do
not
need
a
CGP
will
reduce
unintended
burden
to
projects
that
cause
minimal
erosion/
sediment
concern.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
047
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
14
March
2003
Page
14
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
15
March
2003
Page
15
Comment
Summary
64
EPA
should
also
clarify
in
the
permit
that
replacement
of
existing
structures
with
the
same
structure
is
considered
a
maintenance
activity
if
no
new
land
is
disturbed
(
e.
g.,
replacement
of
a
six
inch
pipeline
with
a
similar
pipeline
in
the
original
construction
right­
of­
way)
EPA
Response:
This
action
does
not
otherwise
extend
or
reduce
the
scope
of
activities
requiring
NPDES
permit
coverage.
EPA
may
clarify
this
issue
when
it
finalizes
the
CGP.
I­
E1­
047
Comment
Summary
65
There
is
no
scientific
reason
to
exempt
the
oil
and
gas
industry
from
permitting
requirements
for
discharge
of
sediment
to
the
nation's
waterways.
The
oil
and
gas
industry
should
be
held
to
the
same
standard
as
all
other
industries
and
live
with
the
statutory
requirements
that
the
rest
of
the
construction
industry
will
be
living
with.
EPA
Response:
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.
I­
E1­
001
I­
E1­
002
I­
E1­
003
I­
E1­
005
I­
E1­
006
I­
E1­
007
I­
E1­
008
I­
E1­
009
I­
E1­
011
I­
E1­
012
I­
E1­
014
I­
E1­
015
I­
E1­
018
I­
E1­
019
I­
E1­
020
I­
E1­
021
I­
E1­
025
I­
E1­
045
I­
E1­
054
I­
E1­
055
I­
E1­
056
Comment
Summary
67
EPA
should
not
be
proposing
this
rule,
as
it
is
clearly
contrary
to
your
duty
to
protect
the
quality
of
the
nation's
waters.
EPA
Response:
See
response
to
Comment
Summary
65.
I­
E1­
010
I­
E1­
015
Comment
Summary
68
EPA
does
not
assert
that
storm
water
discharges
from
oil
and
gas
construction
are
any
less
polluted
than
discharges
from
other
construction
activities.
Nor
does
EPA
assert
that
oil
and
gas
operations
have
any
better
controls
in
place
for
storm
water
pollution
than
other
construction
activities.
EPA
Response:
EPA
will
evaluate
this
class
of
discharges
during
the
extension
granted
by
this
rule.
I­
E1­
053
Comment
Summary
69
The
proposed
definition
of
'
land
disturbance'
or
'
under
construction'
does
not
define
when
'
disturbance'
or
'
construction'
ends,
and
seems
to
assume
that
this
will
be
when
'
final
stabilization'
has
occurred.
Oil
and
gas
sites
are
not
'
finally
stabilized',
as
EPA
defines
that
term,
and
the
possible
requirement
that
'
disturbance'
or
'
construction'
does
not
end
until
'
final
stabilization'
occurs
therefore
fails
to
encompass
normal
prudent
operating
practices
accepted
in
industry.
EPA
Response:
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
16
March
2003
Page
16
This
comment
relates
to
the
proposed
Construction
General
Permit
not
the
proposed
oil
and
gas
extension
rule,
and
will
be
addressed
in
the
responses
to
the
proposed
Construction
General
Permit
comments.
I­
E1­
028
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
17
March
2003
Page
17
Comment
Summary
70
Indeed
the
oil
and
gas
industry
is
subject
to
the
following
regulatory
programs
regardless
of
the
applicability
of
the
NPDES
storm
water
program:
*
Construction
of
pipelines
in
wetlands
or
at
river
crossings
must
comply
with
Corps
of
Engineer
nationwide
permits,
or
obtain
an
individual
permit,
which
protect
waterbodies
from
pollution;
and
*
For
those
pipeline
activities
subject
to
FERC
permitting,
FERC
requires
compliance
with
its
'
Upland
Erosion
Control,
Revegetation
and
Maintenance
Plan'
and
'
Wetland
and
Waterbody
Construction
&
Mitigation
Procedures.
ATINGP
urges
the
EPA
during
this
two­
year
period
of
review
to
evaluate
these
and
any
other
regulatory
programs
applicable
to
transmission
and
pipeline
activities
in
order
to
avoid
redundant
regulation.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
062
Comment
Summary
71
EPA
has
stated
in
the
Proposed
Rule
that
it
had
assumed
earlier
in
the
Phase
II
development
process
that
few,
if
any,
oil
and
gas
sites
would
be
affected
by
the
Phase
II
rules.
According
to
the
West
Virginia
Department
of
Environmental
Protection's
Annual
Report
for
FY
2001­
2002,
the
annual
average
of
new
oil
and
gas
wells
that
have
been
drilled
in
West
Virginia
during
the
past
three
years
is
885.
IOGA­
WV
believes
that
most,
if
not
all,
of
the
new
drilling
sites
in
West
Virginia
will
exceed
the
threshold
level
of
one
acre,
especially
once
the
area
used
to
construct
an
access
road
is
considered.
As
a
result,
the
Phase
II
regulations
will
impact
a
significant
number
of
oil
and
gas
sites
in
this
state.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
061
Comment
Summary
72
It
has
been
ABARTA's
experience
that
the
Best
Management
Practices
demanded
by
Pennsylvania's
Erosion
and
Sedimentation
Control
requirements
meet
or
exceed
current
Federal
regulations.
EPA
Response:
Authorized
State
NPDES
programs
can
be
more
stringent
than
EPA's.
See
responses
to
Comment
Summaries
6,
31
and
182.
I­
E1­
034
Comment
Summary
73
Under
the
terms
of
the
Clean
Water
Act,
any
'
contaminated'
runoff
from
an
otherwise
exempted
oil
and
gas
site
is
not
exempt
from
NPDES
permitting
requirements.
EPA
continues
to
retain
the
ability
to
address
such
storm
water
discharges
through
permitting
or
other
requirements.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
061
Comment
Summary
74
EPA
proposes
to
begin
gathering
information
to
justify
the
proposed
exemption
for
oil
and
gas
construction
now,
but
the
March
2003
compliance
deadline
is
one
about
which
the
oil
and
gas
industry
and
EPA
have
known
since
at
least
Dec
8,
1999,
when
the
phase
II
regulations
were
finalized.
The
oil
and
gas
industry
has
already
had
three
years
in
which
to
supply
information
to
EPA
showing
its
construction
activities
were
less
polluting
than
other
construction
activities
of
between
1
and
5
acres.
For
whatever
reason,
it
has
failed
to
do
so.
EPA
Response:
EPA
disagrees
with
the
commenters
premise
that
the
oil
and
gas
industry
is
obtaining
a
two
year
extension
because
its
construction
activity
is
less
polluting
than
other
construction
activities.
The
industry
has
provided
information
over
the
course
of
the
last
year
indicating
that
close
to
30,000
oil
and
gas
sites
will
be
affected
by
the
Phase
II
storm
water
rule,
a
number
that
far
exceeds
EPA's
rulemaking
estimate
that
"
few,
if
any
such
sites
actually
disturb
more
than
one
acre
of
land."
Economic
Analysis
of
the
Final
Phase
II
Storm
Water
Rule,
footnote
#
2
on
p.
4­
2,
October
1999,
EPA
833­
R­
99­
002.
EPA
is
providing
a
two
year
extension
to
evaluate
data
on
the
development
and
use
of
appropriate
best
management
practices
for
the
industry
as
well
as
to
evaluate
the
impact
of
its
actions
on
energy­
related
production
activities.
I­
E1­
053
Comment
Summary
76
The
idea
that
the
oil
and
gas
exemption
is
broader
and
less
stringent
than
the
mining
exemption
has
been
upheld
by
the
courts
in
Natural
Resources
Defense
Council
v.
U.
S.
EPA.
In
NRDC,
plaintiffs
objected
to
the
distinction
between
the
mining
industry
and
the
oil
and
gas
industry
in
EPA's
regulations,
and
alleged
that
the
oil
and
gas
industry
should
be
held
to
the
same
stricter
standard
as
the
mining
industry.
The
court
found,
however,
'
no
support
in
the
statute
or
legislative
history
for
NRDC's
claim
that,
with
respect
to
 
substances'
discharged
from
oil
and
gas
operations,
'
levels
above
background
must
be
considered
contamination.'
966
F.
2d
1296
(
9th
Cir.
1992).
EPA
Response:
See
response
to
Comment
Summary
18.
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
18
March
2003
Page
18
I­
E1­
028
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
19
March
2003
Page
19
Comment
Summary
77
See
response
to
Comment
Summary
6.
If
EPA
creates
a
storm
water
program
and
a
CGP
for
the
oil
and
gas
industry
in
spite
of
the
CWA
exemption,
Marathon
urges
EPA
to
tailor
the
program
and
the
CGP
to
the
unique
nature
of
the
industry.
Specifically,
the
program
and
the
CGP
should
include
a
workable
definition
of
"
common
plan",
and
should
not
require
the
NOI
and
NOT,
and
the
review
of
endangered
species
and
historic
sites
preservation
as
outlined
in
the
proposed
CGP.
EPA
Response:
EPA
plans
to
evaluate
the
industry
to
determine
its
"
uniqueness"
with
respect
to
storm
water
control
and
require
controls
as
appropriate
based
on
that
evaluation.
EPA's
definition
of
"
common
plan"
is
discussed
in
the
preamble
to
this
rule.
EPA
has
received
anecdotal
information
indicating
that
its
current
approach
for
the
review
of
endangered
species
and
historic
site
preservation
has
negative
economic
impacts
on
the
oil
and
gas
sector
and
plans
to
work
with
the
appropriate
organizations
to
evaluate
possible
alternative
approaches.
I­
E1­
027
Comment
Summary
78
Special
additional
regulations
need
to
be
attached
to
oil
and
gas
construction
activities
in
order
to
minimize
the
amount
of
stream
degradation
presently
being
allowed
to
happen
by
this
industry.
EPA
Response:
EPA
has
not
evaluated
data
that
is
consistent
with
the
commenter's
implication
that
oil
and
gas
construction
activities
degrade
streams
more
so
than
other
types
of
construction
activities.
Among
other
things,
EPA
plans
to
spend
the
next
two
years
evaluating
the
impacts
of
the
oil
and
gas
construction
activities
on
the
environment
and
possible
BMPs
to
address
such
impacts.
I­
E1­
016
I­
E1­
017
Comment
Summary
79
EPA
cannot
study
the
full
scope
of
the
exemption
without
looking
at
all
oil
and
gas
activities,
including
the
construction
activities
that
are
an
inherent
part
of
oil
and
gas
operations
and
regardless
of
acreage
to
be
disturbed
by
such
activities.
EPA
Response:
EPA
plans
to
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
for
all
site
sizes.
I­
E1­
039
Comment
Summary
80
EPA
should
conduct
a
thorough
reassessment
of
its
storm
water
construction
permitting
for
oil
and
natural
gas
exploration
and
production
facilities.
EPA's
proposed
suspension
of
the
Phase
II
storm
water
construction
regulation
as
it
applies
to
oil
and
gas
exploration
and
production
facilities
initiates
an
opportunity
to
consider
alternative
approaches
that
would
be
consistent
with
the
environmental
impacts
of
construction
of
these
facilities
while
minimizing
the
regulatory
burden.
This
provides
an
opportunity
to
review
Best
Management
Practices
within
the
industry,
and
as
required
by
many
states.
EPA
Response:
See
response
to
Comment
Summary
4.
EPA
is
planning
to
consider
alternative
regulatory
approaches
that
would
still
achieve
environmental
benefit.
I­
E1­
026
I­
E1­
030
Comment
Summary
81
There
is
no
reason
to
postpone
permitting
for
2
years
when
most
contractors
involved
have
experience
with
sites
over
5
acres
and
therefore
should
already
have
a
storm
water
management
plan
in
hand
that
could
be
routinely
implemented.
If
there
really
was
a
desire
by
EPA
to
'
better
evaluate...
the
appropriate
BMPs
for
preventing
contamination...'
the
rule
would
be
not
be
postponed,
but
rather
would
be
imposed
as
interim
minimum
with
increased
requirements
forthcoming.
EPA
Response:
See
response
to
Comment
65.
EPA
disagrees
with
the
commenters
approach
suggesting
that
EPA
evaluate
small
oil
and
gas
regulatory
requirements
while
still
applying
the
regulatory
requirements.
The
commenter
argues
that
interim
measures
could
be
put
in
effect
with
additional
measures
added
based
on
the
results
of
subsequent
EPA
review.
The
oil
and
gas
industry
asserts
that
the
existing
"
minimum"
requirements
would
in
fact
have
a
significant
economic
impact
on
the
industry
and
believe
something
less
than
the
current
regulatory
approach
is
appropriate.
To
perform
that
analysis,
EPA
believes
postponement
of
the
existing
requirements
for
the
oil
and
gas
industry
is
appropriate.
I­
E1­
045
Comment
Summary
82
We
believe
that
not
only
should
a
delay
in
implementation
occur,
but
that
the
oil
and
gas
­
exemption
­
included
in
the
original
legislation
supporting
the
Phase
II
regulations
should
be
recognized
by
EPA.
The
proposed
delay
would
then
become
a
permanent
exemption.
EPA
Response:
See
response
to
Comment
Summary
18.
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
20
March
2003
Page
20
I­
E1­
052
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
21
March
2003
Page
21
Comment
Summary
83
The
concept
of
'
common
plan
of
development
or
sale',
as
outlined
in
the
proposed
CGP,
is
vague
and
does
not
lend
itself
to
a
workable
purpose
so
far
as
the
oil
and
gas
industry
is
concerned.
In
principle,
the
idea
seems
to
be
to
prevent
a
large
project
from
being
segmented
in
such
a
way
to
avoid
permitting.
It
may
be
a
valid
concept
for
a
subdivision
or
large
shopping
center
that
is
being
built
over
a
longer
period
of
time
but
is
clearly
designed
to
cover
an
area
larger
than
its
initial
phase.
The
oil
and
gas
exploration
and
development
plans
are
created
with
a
different
approach.
When
an
oil
and
gas
producer
begins
to
develop
a
'
field',
it
is
unknown
as
to
when,
where
and
how
many
wells
are
to
be
eventually
drilled.
Development
of
an
oil
and
gas
field
cannot
be
planned
in
advance.
Oil
and
gas
development
is
not
an
easily
predictable
process.
The
oil
and
gas
operator
does
not
know
with
certainty
the
extent
of
development
he
will
undertake
in
a
particular
area.
The
common
plan
of
development
or
sale
concept,
if
it
is
to
be
applied
to
oil
and
gas
operations,
should
only
apply
to
that
number
of
wells,
all
under
development
at
the
same
time,
for
which
final
stabilization
has
not
been
achieved.
EPA
Response:
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.
I­
E1­
027
I­
E1­
051
I­
E1­
052
Comment
Summary
84
While
'
future
contingent'
activities
can
be
excluded
from
a
'
common
plan',
the
definition
of
'
future
contingency'
is
based
on
an
ambiguous
reference
to
'
funded'
activities.
This
reference
would
appear
[
to]
require
most
future
activities
to
be
included
in
the
'
common
plan',
thereby
excluding
most
development
and
in­
fill
drilling
programs
from
coverage
under
a
'
common
plan'.
EPA
Response:
See
response
to
Comment
Summary
83.
I­
E1­
028
Comment
Summary
85
In
the
proposed
Fact
Sheet
accompanying
the
proposed
CGP,
EPA
attempts
to
explain
the
phrase
"
common
plan"
using
the
oil
and
gas
industry
as
an
example.
EPA's
explanation
poses
numerous
problems
for
the
oil
and
gas
industry.
For
example,
in
determining
whether
two
non­
contiguous
construction
activities
are
considered
a
part
of
a
common
plan
of
development,
EPA
introduced
a
1/
4
mile
distance
criteria.
Two
well
pads
which
are
at
least
1/
4
mile
apart
are
to
be
considered
two
separate
construction
activities
if
any
interconnecting
road,
pipeline
or
utility
is
not
under
construction
at
the
same
time.
First,
many
wells
are
developed
on
tracks
of
20
to
160
acres
(
or
1/
32
sq.
mi.
to
1/
4
sq.
mi.).
When
multiple
wells
are
drilled
to
the
same
reservoir,
they
are
usually
drilled
less
than
1/
4
miles
from
each
other.
Second,
interconnecting
access
roads
and
pipelines
are
often
built
along
with
well
pads.
If
"
under
construction
at
the
same
time"
means
"
not
finally
stabilized"
as
defined
in
the
proposed
CGP,
this
limitation
would
be
a
significant
problem.
Due
to
the
distance
and
"
interconnecting"
limitations,
many
non­
contiguous
oil
and
gas
construction
activities
would
have
to
be
considered
as
under
a
common
plan
of
development,
triggering
the
permit
requirement.
EPA
Response:
See
response
to
Comment
Summary
83.
I­
E1­
027
I­
E1­
028
Comment
Summary
86
The
issue
of
the
treatment
of
"
common
plan
of
development"
as
it
applies
to
E&
P
facilities
must
be
considered
in
the
context
of
the
postponed
application
of
the
CGP
to
oil
and
gas
facilities.
Crafted
as
the
rest
of
the
CGP
was
 
for
subdivision
and
shopping
center­
like
facilities
 
its
application
to
oil
and
gas
facilities
creates
enormous
uncertainty.
EPA's
deferral
should
include
sites
that
are
regulated
under
Phase
I
that
are
part
of
common
plan
of
development
that
disturbs
greater
than
five
acres.
EPA
Response:
See
response
to
Comment
Summary
83.
I­
E1­
026
I­
E1­
030
I­
E1­
048
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
22
March
2003
Page
22
Comment
Summary
87
If
sites
of
five
and
greater
acres
or
sites
that
are
part
of
a
common
plan
of
development
that
disturbs
five
acres
were
not
included
in
the
postponement,
the
postponement
would
become
a
false
promise.
While
reassessments
of
the
application
of
the
permit
process
to
oil
and
gas
facilities
were
being
undertaken,
some,
if
not
all,
EPA
regions
could
be
applying
the
convoluted
common
plan
of
development
analysis
to
the
same
operations
that
were
not
being
regulated
due
to
the
postponement
and
thereby
regulating
them.
EPA
Response:
See
response
to
Comment
Summary
83.
I­
E1­
026
I­
E1­
030
Comment
Summary
88
The
construction
area
measurement
methodology
utilized
to
determine
if
a
storm
water
discharge
permit
is
required
is
severely
flawed.
Using
the
current
measurement
method,
multiple
one­
half
acre
wellsites
located
several
thousand
feet
apart
are
considered
a
single
project
if
they
are
connected
by
a
road
or
pipeline.
In
reality,
each
well
in
an
oil
and
gas
field
is
a
separate
project,
widely
separated
from
other
wells.
The
total
disturbed
area
in
an
oil
and
gas
field
may
be
only
2­
3%
of
the
field
area,
with
large
undisturbed
areas
between
each
well.
Access
roads
between
wells
are
frequently
stabilized
immediately
with
application
of
stone.
Pipelines
are
normally
reclaimed,
mulched
and
seeded
within
a
few
days
or
weeks
of
initial
surface
disturbance.
Because
of
their
long,
ribbon­
like
nature,
well
access
roads
and
pipelines,
even
though
they
may
exceed
total
area
thresholds,
do
not
pose
the
same
storm
water
run­
off
threat
as
a
consolidated
project
of
similar
total
area.
EPA
Response:
See
response
to
Comment
Summary
83.
I­
E1­
051
Comment
Summary
89
If
additional
regulation
is
warranted,
EPA
must
use
models
and
definitions
that
are
appropriate
and
specific
to
activities
associated
with
oil
and
gas
operations.
In
defining
various
terms
and
developing
the
various
requirements,
EPA
has
used
a
model
based
on
residential
and
commercial
construction
projects,
which
does
not
account
for
factors
that
control
location,
spacing,
planning
and
timing
of
oil
and
gas
exploration
and
production
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
039
Comment
Summary
90
Because
the
Agency
believed
that
oil
and
gas
facilities
were
not
affected
by
Phase
I
or
II,
the
Phase
I
and
II
regulations
and
proposed
CGP
are
structured
to
address
construction
of
building
facilities
 
houses
and
commercial
buildings
not
well­
sites
and
facilities.
There
is
a
lack
of
understanding
of
the
differences
between
everyday
oil
and
gas
industry
activities
and
typical
residential
and
commercia1activities.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
I­
E1­
026
I­
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030
I­
E1­
035
I­
E1­
048
Comment
Summary
91
Unlike
construction
activity
for
housing
developments
or
commercial
ventures,
land
ownership
and
management
does
not
change
hands
in
the
process
of
the
exploring
for
oil
and
gas.
Oil
and
gas
production
operations
involve
the
leasing
of
surface
rights,
construction
occurs
within
a
matter
of
weeks,
and
timing
is
critical
because
it
involves
obtaining
a
drilling
rig
that
must
be
carefully
scheduled
and
is
paid
for
based
on
the
number
of
days
it
is
in
use.
Disruption
in
this
process
can
place
entire
projects
and
substantial
capital
at
risk.
These
consequences
are
at
issue
in
the
Phase
II
regulations.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
022
I­
E1­
026
I­
E1­
027
I­
E1­
030
I­
E1­
048
I­
E1­
050
I­
E1­
051
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
23
March
2003
Page
23
Comment
Summary
92
EPA's
scientific
model
is
based
wholly
on
conventional
residential
and
commercial
construction
and
development
projects.
This
model
does
not
support
a
need
to
impose
a
permit
requirement
or
additional
controls
on
oil
and
gas
grading,
clearing,
and
excavating
activities
beyond
those
already
used
at
oil
and
gas
sites.
These
activities
are
different
from
conventional
construction
activities,
with
minimal
environmental
impacts,
in
that
the
scope
and
extent
of
oil
and
gas
activities
are
non
contiguous,
contingent
on
geological
and
market
factors,
often
located
in
remote
places,
and
characterized
as
a
matter
of
technical
necessity
and
industry
practice
by
temporary,
non­
permeable,
low
impact
development
practices.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
028
Comment
Summary
93
The
reduced
impact
of
small
construction
sites
should
be
accompanied
by
reduced
burden
on
the
permittee.°
Sites
that
begin
and
end
construction
(
i.
e.,
temporary
stabilization)
within
a
30­
day
period
should
be
exempt
from
all
requirements
of
the
CGP.°
Submittal
of
a
NOI
for
small
sites
is
burdensome
and
unnecessary
and
should
be
covered
by
Permit­
by­
Rule.
EPA
acknowledged
that
NOIs
might
not
be
appropriate
for
small
sites
in
the
Phase
II
rule
(
64
FR
68777,
December
8,
1999).°
Inspection
of
BMP
should
be
at
a
decreased
frequency
for
small
sites
(
i.
e.,
every
two
weeks
during
active
construction
activities
and
every
two
months
after
temporary
stabilization).
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
See
response
to
Comment
Summary
6.
I­
E1­
047
Comment
Summary
94
Natural
gas
pipeline
and
local
gas
utility
projects
have
only
minimal,
temporary
impacts
on
storm
water
discharges.
Natural
gas
pipelines
and
distribution
lines
can
extend
over
many
miles.
However,
these
projects
are
typically
of
short
duration.
They
also
have
limited
impacts
because
only
small
portions
of
trench
are
open
at
any
one
time.
The
projects
are
narrow,
linear,
and
are
typically
less
than
25
feet
wide.
Gas
service
line
projects
are
as
narrow
as
18
inches,
and
natural
gas
utilities
follow
best
management
practices
(
BMPs)
to
minimize
sedimentation
and
erosion.
Many
of
the
projects
are
constructed
in
urban
areas
in
existing
streets,
curbs
and
sidewalks.
This
limits
the
soil
disturbance
areas
to
the
trench
and
excavations
and
any
on­
site
soil
stockpiles,
as
the
paved
and
cemented
areas
being
worked
on
do
not
erode.
In
many
cases,
the
soil
removed
from
trenches
and
excavations
is
not
stockpiled
on­
site,
but
removed
from
the
construction
site
either
immediately
or
within
a
day.
Most
importantly,
unlike
most
commercial
development
projects,
natural
gas
pipeline
and
utility
line
projects
do
not
cause
any
long
term
changes
in
storm
water
runoff
because
these
projects
cause
only
minimal
(
if
any)
change
to
original
grade
or
contours,
and
they
do
not
change
the
amount
of
impervious
surfaces.
AGA
believes
that
many
of
the
provisions
proposed
in
the
Phase
II
storm
water
regulations
do
not
consider
the
unique
characteristics
of
linear
gas
utility
construction
projects.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
043
Comment
Summary
95
GPA
also
supports
removing
the
requirement
to
submit
a
NOI
for
construction
sites
48
hours
prior
to
start
of
construction 
the
requirement
to
submit
NOIs
by
March
10,
2003
does
not
allow
industry
sufficient
time
to
gather
data,
complete
ESA
reviews,
complete
Historic
Preservation
reviews,
and
ensure
that
all
appropriate
personnel
are
trained
and
familiar
with
the
new
conditions
in
the
Phase
II
permit.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
047
Comment
Summary
96
Many
requirements
in
the
proposed
CGP,
such
as
completion
and
submittal
of
the
NOI
and
NOT,
reviews
of
endangered
species
and
historic
sites
preservation,
will
cause
significant
delay
in
an
oil
and
gas
project.
The
project
schedule
may
allow
time
for
a
cursory
review
of
endangered
species
habitats
and
historic
sites
preservation
to
ensure
compliance
with
the
respective
Federal
laws;
however,
the
delay
resulting
from
the
detailed
review
and
documentation
as
prescribed
in
the
proposed
CGP
and
its
addenda
will
jeopardize
the
success
of
the
project.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
027
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
24
March
2003
Page
24
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
25
March
2003
Page
25
Comment
Summary
97
EPA's
construction
storm
water
program
and
the
CGP
track
the
same
process,
requiring
a
Notice
of
Intent
(
NOI)
and
a
Notice
of
Termination
(
NOT).
The
planning
phase
of
such
a
project
takes
many
months
even
years,
allowing
time
for
detailed
planning
and
review
for
such
items
as
endangered
species
and
historic
sites
preservation.
An
oil
and
gas
construction
project,
on
the
other
hand,
is
typically
on
a
very
tight
schedule
and
moves
very
quickly
from
planning
to
construction
because
both
the
access
to
mineral
rights
and
the
availability
of
drilling
rigs
are
on
schedules.
Failure
to
meet
the
schedule
often
results
in
the
loss
of
opportunity
to
drill
which
could
lead
to
forfeiting
hundreds
of
thousands
of
dollars
invested
in
the
project.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
027
Comment
Summary
98
There
would
be
no
benefit
to
the
environment
as
a
result
of
the
implementation
of
the
NPDES
permit
requirements
because
the
construction
standards
and
procedures
currently
in
effect
would
not
change.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
068
Comment
Summary
99
It
has
already
been
identified,
in
past
rule
makings
and
pursuant
to
section
1342(
p)(
6)
of
the
Clean
Water
Act,
that
small
construction
activities
(
those
that
disturb
1­
5
acres)
significantly
contribute
to
water
quality
degradation.
As
such,
the
CWA
dictates
that
EPA
must
'
establish
expeditious
deadlines'
for
implementing
a
regulatory
program
for
these
discharges.
EPA
Response:
See
response
for
Comment
Summary
65.
At
this
time,
EPA
believes
that
two
years
is
a
reasonable
amount
of
time
to
evaluate
impacts
by
the
activities
covered
by
40
CFR
122.26(
e)(
8),
the
impact
of
regulation
on
those
activities,
and
the
scope
of
CWA
§
402(
l)(
2).
I­
E1­
002
I­
E1­
005
I­
E1­
006
I­
E1­
007
I­
E1­
009
I­
E1­
010
I­
E1­
012
I­
E1­
013
I­
E1­
014
I­
E1­
015
I­
E1­
018
I­
E1­
019
I­
E1­
020
I­
E1­
021
I­
E1­
025
I­
E1­
037
Comment
Summary
100
EPA
should
not
even
be
proposing
this
rule,
as
it
is
clearly
contrary
to
your
duty
to
protect
the
Nation's
water
quality.
EPA
Response:
See
response
for
Comment
Summary
65.
I­
E1­
002
I­
E1­
003
I­
E1­
005
I­
E1­
006
I­
E1­
007
I­
E1­
008
I­
E1­
009
I­
E1­
012
I­
E1­
014
I­
E1­
018
I­
E1­
019
I­
E1­
020
I­
E1­
021
I­
E1­
025
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
26
March
2003
Page
26
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
27
March
2003
Page
27
Comment
Summary
101
Due
to
the
extremely
disruptive
nature
of
oil
and
gas
development
and
the
track
record
of
these
developers
to
control
accelerated
erosion
and
sediment
pollution,
a
special
exemption
from
the
NPDES
Permit
Requirements
should
not
be
enacted.
EPA
Response:
See
response
for
Comment
Summary
65.
I­
E1­
016
I­
E1­
017
I­
E1­
025
Comment
Summary
102
During
this
two­
year
period,
I
strongly
urge
EPA
to
consider
the
full
scope
of
the
exemption
in
Section
402(
1)(
2)
of
the
Clean
Water
Act:
to
study
the
best
management
practices
commonly
used
by
the
oil
and
gas
industry
to
minimize
impacts
from
oil
and
gas
sites;
to
develop
a
more
appropriate
model
for
oil
and
gas
activities,
as
well
as
water
quality
impacts.
EPA
Response:
EPA
concurs
with
this
comment,
and
fully
intends
to
spend
the
next
two
years
fully
exploring
all
facets
of
this
issue.
I­
E1­
039
Comment
Summary
103
The
Environmental
Protection
Agency
was
founded
to
protect
the
environment.
At
one
time
it
did.
Now
it
is
an
agency
that
has
lost
its
way.
It
doesn't
care
about
environmental
protection,
but
it
carries
favor
from
the
Oil
and
Gas
Industry
because
there's
one
Oil
and
Gas
proponent
in
the
White
House.
This
is
not
environmental
protection;
this
is
a
scandal.
 
Remember
the
Environmental
Protection
Agency
exists
to
protect
the
environment.
EPA
Response:
The
U.
S.
Environmental
Protection
Agency
strives
to
implement
programs
based
on
legislation
enacted
by
the
U.
S.
Congress,
and
according
to
congressional
intent
where
such
intent
has
been
expressed.
There
are
often
different
interpretations
of
statutory
language.
This
may
be
one
of
those
situations.
EPA
intends
to
spend
the
next
2
years
carefully
evaluating
all
aspects
of
this
decision,
and
hopes
to
make
a
decision
that
is
fair,
reasonable
and
protective
of
the
environment.
I­
E1­
001
Comment
Summary
104
We
already
prepare
and
implement
Erosion
and
Sedimentation
Plans
for
the
drilling
of
our
wells.
We
adhere
by
our
plans
because
it
is
in
our
best
interest
to
keep
our
rig
road
and
well
locations
as
dry
as
possible
during
wet
weather
to
minimize
costs
associated
with
operating
heavy
equipment
in
muddy
conditions.
It
only
takes
three
or
four
days
to
drill
a
well
and,
weather
permitting,
our
roads
and
locations
are
recontoured
close
to
the
original
topography,
then
re­
seeded,
within
several
months,
or
as
soon
as
the
appropriate
equipment
can
be
scheduled
to
do
so.
For
all
these
reasons,
I
can't
imagine
that
an
additional
permitting
burden
will
provide
any
incremental
environmental
benefit.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
031
Comment
Summary
105
Our
wells
are
shallow,
not
deeper
than
4,000
feet,
and
generally
take
about
4
days
to
drill
and
an
additional
week
is
required
to
complete
and
recover
the
well
site
to
original
contour.
This
is
a
relatively
short
period
of
time
for
a
fairly
small
footprint
of
a
well
site
generally
less
than
one
acre
in
size
to
be
exposed
to
potential
storm
water
influx.
Should
such
occur,
our
drilling
plans
include
procedure
to
mitigate
the
impact
of
such
flows.
Most
of
the
wells
are
in
rural
areas
and
not
infrequently
in
areas
previously
strip
mined.
The
impact
of
the
environment
is
minimal
but
it
does
provide
landowners
with
another
source
of
income
as
well
as
a
source
of
natural
gas
for
household
use.
Our
activity
is
regulated
and
monitored
by
the
PA
Dept.
of
Environmental
Protection
including
a
soil
and
erosion
plan
submitted
prior
to
each
moving.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.

Comment
Summary
106
The
requirements
for
Storm
Water
Pollution
Prevention
Plans
(
SWPPP)
add
new
requirements
that
provide
no
associated
environmental
benefits.
If
the
landowner
was
not
practicing
adequate
erosional
control
practices
on
their
land
prior
to
the
construction
of
the
temporary
drill
site,
attempting
to
manage
a
1
acre
site
in
the
middle
of
a
cultivated
field
or
pasture
consisting
of
anywhere
from
20
to
160
acres
would
be
fruitless.
Because
of
the
remoteness
of
oil
and
gas
exploration
activity,
the
storm
water
­
sediment
loads
would
be
impossible
to
detect
above
the
baseline
resulting
from
sediment
loads
from
the
surrounding
exempt
agricultural
activity.
This
is
the
reason
why
oil
and
gas
exploration
and
production
activity
was
originally
exempted
in
the
original
NPDES
rules.
The
reasons
for
the
exemption
haven't
changed.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
28
March
2003
Page
28
comment
is
not
inconsistent
with
today's
action.
I­
E1­
050
Comment
Summary
107
In
the
case
of
oil
and
natural
gas
exploration
and
production
facilities,
we
do
not
believe
that
EPA
made
a
reasonable
assessment
of
either
the
risk
or
the
burden.
Nowhere
in
the
information
that
we
reviewed
regarding
the
development
of
the
Phase
I
or
II
regulations
is
there
an
indication
of
significant
environmental
risks
associated
with
oil
and
natural
gas
exploration
and
production
facility
construction.
During
this
two­
year
period,
I
strongly
urge
EPA
to
consider
the
full
scope
of
the
exemption
in
Section
402(
1)(
2)
of
the
Clean
Water
Act;
to
determine
whether
or
not
there
are
notable
water
quality
impacts
from
oil
and
gas
construction
activities
of
all
sizes
and
the
extent
of
any
such
impacts.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
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022
I­
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026
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030
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035
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039
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048
I­
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070
Comment
Summary
108
We
are
unaware
of
any
negative
environmental
impact
from
storm
water
associated
with
oil
and
gas
activity.
We
feel
certain
that
if
the
current
level
of
drilling
activity
presented
storm
water
runoff
problems
during
construction,
they
would
be
well
documented
and
extremely
well
covered
by
the
mainstream
media!
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
026
I­
E1­
030
I­
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065
Comment
Summary
109
There
is
a
lack
of
data
that
identifies
the
contribution
the
rules
will
have
to
the
improvement
to
human
health
and
the
environment.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
035
Comment
Summary
110
Imposing
such
permit
requirements
on
construction
activities
of
oil
and
gas
exploration,
drilling
and
production
activities
offers
no
environmental
protection
beyond
that
already
provided
under
current
regulations
at
the
state
level.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
051
Comment
Summary
112
If
you
would
see
the
amount
of
sediment
washing
into
high
quality
trout
streams
from
their
well
pads
and
roads,
you
would
not
propose
exempting
the
industry
from
meeting
storm
water
management
requirements
for
two
more
years.
Instead,
you
would
be
requiring
immediate
implementation
of
the
most
stringent
storm
water
management
possible.
They
are
literally
thousands
of
wells
on
the
ANF,
and
nearly
all
of
them
contribute
sediment
to
the
high
quality
trout
streams
that
are
found
on
the
ANF.
I
have
electrofished
some
of
these
streams
and
in
some,
sediment
has
obliterated
the
gravel/
rubble
substrate.
EPA
Response:
See
response
for
Comment
Summary
65.
EPA
acknowledges
that
erosion
and
sedimentation
from
oil
and
gas
construction
activities
may
cause
water
quality
impacts.
EPA
intends
to
spend
the
next
2
years
fully
exploring
all
facets
of
this
issue.
I­
E1­
055
Comment
Summary
113
Previous
studies
by
EPA
and
others
have
found
small
construction
activities
are
significantly
degrading
and
must
be
controlled
to
protect
our
watersheds.
EPA
Response:
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
29
March
2003
Page
29
See
response
for
Comment
Summary
112.
I­
E1­
054
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
30
March
2003
Page
30
Comment
Summary
114
Please
do
your
job
and
do
not
allow
oil
and
gas
interests
to
pollute
our
streams.
Uphold
the
Clean
Water
Act.
EPA
Response:
See
response
for
Comment
Summary
65.
I­
E1­
004
Comment
Summary
115
Exempting
the
oil
and
gas
industry
from
permitting
requirements
for
discharge
of
uncontaminated
sediment
may
contribute
significantly
to
nonpoint
source
pollution.
Sedimentation
­
or
nonpoint
source
pollution
­
is
one
of
our
biggest
water
pollution
problems
and
exempting
an
entire
industry
from
the
law
would
only
exacerbate
this
problem.
EPA
Response:
See
response
for
Comment
Summary
112.
I­
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002
I­
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003
I­
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005
I­
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006
I­
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007
I­
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008
I­
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009
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012
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013
I­
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014
I­
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015
I­
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018
I­
E1­
019
I­
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020
I­
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021
I­
E1­
025
I­
E1­
054
I­
E1­
058
Comment
Summary
117
Past
coal
mining
activities
have
significantly
degraded
thousands
of
miles
of
streams,
wetlands,
creeks
and
a
major
river,
the
Susquehanna.
Too
much
has
already
been
lost.
To
increase
the
losses
by
exempting
one
major
industry
is
unconscionable.
EPA
Response:
See
response
for
Comment
Summary
112.
I­
E1­
025
Comment
Summary
118
The
permit
requirement
is
necessary
because
Oil
and
Gas
well
drilling
is
a
point
source
pollution.
The
industry
has
not
learned
how
to
manage
site
construction,
road
construction,
or
pipeline
construction
without
causing
accelerated
soil
erosion
and
sedimentation.
The
Industry
cares
only
about
the
bottom
line.
Best
management
practices
are
not
utilized
because
industry
is
not
required
to
utilize
them.
The
result
is
accelerated
soil
erosion
and
sedimentation.
EPA
Response:
See
response
for
Comment
Summary
65.
I­
E1­
001
Comment
Summary
119
The
oil
and
gas
industry
has
been
responsible
for
an
enormous
amount
of
ground
and
surface
water
pollution.
EPA
Response:
See
response
for
Comment
Summary
112.
I­
E1­
010
Comment
Summary
121
The
Alliance
believes
that
EPA
should
take
into
consideration
that
most
oil
and
gas
drilling
operations
are
conducted
in
rural
areas,
outside
city
limits,
and
the
storm
water
regulations
require
facilities
discharging
storm
water
associated
with
'
industrial
activity'
to
apply
for
an
NPDES
permit.
 
Oil
and
gas
drilling
is
seldom
done
in
largely
populated
areas.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
023
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
31
March
2003
Page
31
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
32
March
2003
Page
32
Comment
Summary
122
EPA
cannot
create
an
exemption
from
a
generally
applicable
regulatory
requirement,
such
as
requiring
permits
for
construction
activities
that
exceed
one
acre
in
size,
without
supporting
evidence.
To
do
so
would
be
arbitrary
and
capricious
and
violate
the
Administrative
Procedure
Act.
5
U.
S.
C.
§
706.
In
this
case,
EPA
lacks
such
evidence,
so
the
request
for
an
exemption
must
be
denied.
EPA
Response:
EPA
is
not
creating,
through
today's
action,
a
regulatory
exemption.
Rather,
EPA
is
merely
postponing
for
two
years
the
deadline
for
permit
coverage
for
a
segment
of
those
activities
described
in
40
CFR
§
122.26(
b)(
15).
One
of
the
principal
reasons
EPA
proposed
to
take
this
action
was
because
the
Agency
based
its
initial
decision
to
regulate
discharges
associated
with
small
construction
activity
on
information
that
pertained
to
residential,
commercial
and
other
types
of
industrial
construction.
However,
the
Agency
had
relatively
little
information
on
small
construction
activity
associated
with
the
oil
and
gas
industry
at
the
time
EPA
promulgated
the
March
10,
2003,
deadline
encompassing
small
construction
activity.
Accordingly,
EPA
had
assumed
that
relatively
few
small
construction
projects
associated
with
oil
and
gas
exploration,
production,
processing
and
treatment
operations
or
transmission
facilities
would
be
affected
by
that
rule.
Since
then,
EPA
came
to
understand
that
tens
of
thousands
of
sites
might
be
affected
by
this
rule
each
year.
Given
the
potential
magnitude
of
this
regulatory
impact,
EPA
thought
it
prudent
to
take
some
additional
time
to
evaluate
this
impact,
appropriate
BMPs
for
this
class
of
activities
and
the
scope
of
33
U.
S.
C.
§
1342(
l)(
2)."
I­
E1­
053
Comment
Summary
123
It
is
an
appropriate
action
to
postpone
the
permit
deadline
to
further
evaluate
and
resolve
the
various
issues.
Executive
Order
13211
directs
EPA
to
consider
the
impact
of
its
actions
on
energy­
related
production
activities.
Since
underground
natural
gas
transmission
and
distribution
pipeline
construction
projects
construction
projects
are
an
integral
part
of
natural
gas
energy
­
related
production,
EPA,
under
Executive
Order
13211
needs
to
consider
the
impacts
the
Phase
II
final
rule
would
have
on
such
projects.
This
includes
the
cost
of
compliance
for
storm
water
pollution
prevention
plans
and
inspection
requirements
for
sites,
which
involve
small,
discrete,
remote,
and
simple
sites.
EPA
Response:
See
response
to
Comment
Summary
6.
In
the
spirit
of
EO
13211,
EPA
is
evaluating
the
impacts
of
the
Phase
II
rule
on
those
facilities
for
which
the
postponement
applies
(
i.
e.,
oil
and
gas
exploration,
production,
processing,
and
treatment
operations
or
transmission
facilities),
but
is
not
expanding
the
scope
of
the
postponement
to
additional
sites.
I­
E1­
022
I­
E1­
028
I­
E1­
035
I­
E1­
057
I­
E1­
063
Comment
Summary
124
EPA's
long
standing
interpretation
of
the
Clean
Water
Act
is
correct
and
the
current
regulations
appropriately
distinguish
between
construction
activities
and
oil
and
gas
exploration
and
production
operations.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
002
I­
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003
I­
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005
I­
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006
I­
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007
I­
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008
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E1­
009
I­
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012
I­
E1­
013
I­
E1­
014
I­
E1­
015
I­
E1­
018
I­
E1­
019
I­
E1­
020
I­
E1­
021
I­
E1­
025
I­
E1­
056
I­
E1­
058
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
33
March
2003
Page
33
Comment
Summary
125
Cutting
the
oil
and
gas
industry
a
two­
year
break
from
the
requirements
that
the
rest
of
the
construction
industry
must
live
with
is
contrary
to
this
statutory
requirement
and
is
contrary
to
EPA's
duties
to
protect
water
quality.
EPA
Response:
See
response
for
Comment
Summary
65.
EPA
disagrees
that
this
action
is
contrary
to
the
CWA
and
contrary
to
EPA's
duties
to
protect
water
quality.
EPA
is,
in
fact,
extending
the
compliance
deadline
for
oil
and
gas
activities
to
better
evaluate
the
types
of
controls
in
place
to
control
storm
water
runoff
and
the
economic
impact
to
the
sector
associated
with
those
controls.
I­
E1­
013
I­
E1­
025
Comment
Summary
126
Second,
EPA
intent
with
regard
to
the
postponement
of
the
CGP
needs
to
be
clearly
communicated
both
to
all
the
EPA
regions
and
to
the
states
with
NPDES
authority
so
that
the
regulatory
process
is
both
certain
and
consistent.
Having
a
state
with
NPDES
authority
operating
differently
from
EPA
during
this
two
year
period
would
be
completely
counter
productive.
EPA
Response:
EPA
has
authorized
45
states
and
one
territory
to
administer
the
NPDES
program
in
lieu
of
EPA.
EPA
considers
publication
of
a
final
rule
in
the
Federal
Register
to
be
a
significant
step
in
communicating
the
postponement
of
permit
requirements
for
small
oil
and
gas
related
construction
activities
but
EPA
also
expects
to
conduct
other
types
of
outreach
activities
to
disseminate
this
information.
The
commenter
should
realize
that
states
have
the
authority
to
enact
state
laws
that
are
more
stringent
than
regulations
promulgated
by
EPA.
As
such,
certain
states
may
opt
to
require
permit
coverage
for
certain
activities
that
EPA
has
otherwise
postponed
applicable
Federal
requirements.
I­
E1­
026
I­
E1­
030
I­
E1­
048
Comment
Summary
127
AGA
requests
EPA
to
include
in
the
preamble
to
the
final
rule
a
clear
statement
that
strongly
encourages
states
to
postpone
the
application
of
their
own
storm
water
regulations
to
oil
and
natural
gas
activities
until
April
2005.
We
are
concerned
that
EPAs
action
may
be
rendered
moot
because
states
with
delegated
NPDES
authority
are
moving
forward
rapidly
to
adopt
construction
storm
water
permitting
regulations
in
2003,
based
on
the
Phase
II
rule
that
EPA
now
indicates
may
not
be
appropriate
for
oil
and
natural
gas
projects.
EPA
Response:
See
responses
for
Comment
Summaries
126
and
128.
I­
E1­
043
Comment
Summary
128
We
ask
EPA
to
encourage
states
to
follow
EPAs
ultimate
decision
regarding
whether
to
exempt
such
activities
from
storm
water
permit
regulations.
EPA
Response:
States
are
only
required
to
be
as
stringent
as
EPA.
It
is
their
decision
as
to
whether
to
provide
a
two­
year
postponement
for
small
oil
and
gas
construction,
as
EPA
is
doing.
EPA
believes
most
States
intend
to
follow
EPA
on
this
issue.
I­
E1­
043
Comment
Summary
129
We
are
in
accord
with
IOGA­
PA,
that
provisions
of
the
Clear
Water
Act
of
1987
§
402
(
1)(
2)
excludes
uncontaminated
storm
water
from
oil
and
natural
gas
production
facilities
from
the
NPDES
permitting.
EPA
Response:
See
response
for
Comment
Summary
18.
I­
E1­
068
Comment
Summary
130
We
continue
to
believe
that
construction
of
roads,
equipment
pads
and
gathering
lines
are
an
integral
part
of
exploration
and
production
activity
and
as
such,
they
should
be
considered
'
included'
in
the
exemption
from
storm
water
permitting
extended
to
oil
and
gas
operations
found
in
40
CFR
122.26
(
c)
(
iii).
EPA
Response:
See
response
for
Comment
Summary
18.
I­
E1­
064
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
34
March
2003
Page
34
Comment
Summary
131
As
the
transmission
segment
of
the
oil
and
gas
industry
implements
Department
of
Transportation
required
Integrity
Management
and
the
requirements
of
the
new
Pipeline
Safety
Act,
pipeline
associated
disturbances
are
likely
to
increase.
ATINGP
urges
EPA
to
consider
these
additional
potential
sites
during
its
evaluation
of
impacts
of
the
Phase
II
rules
on
the
oil
and
gas
industry
during
the
next
two
years.
EPA
Response:
EPA
acknowledges
the
commenters
concern
that
the
requirements
of
the
new
Pipeline
Safety
Act
may
increase
the
actual
number
of
ground
disturbances
related
to
the
transmission
of
oil
and
gas.
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
062
Comment
Summary
132
In
the
preamble
to
the
Phase
I
rules,
EPA
uses
SIC
Code
13
to
define
the
oil
and
gas
operations
that
are
subject
to
the
storm
water
permitting
exemption
under
Section
402(
l)(
2).
55
Fed.
Reg.
47990,
48031
(
Nov.
16,
1990).
The
descriptions
of
the
activities
covered
by
SIC
Code
13
include
construction
activities
associated
with
oil
and
gas
operations,
such
as
excavating,
grading,
building,
erecting,
and
repairing.
Therefore,
by
EPA's
own
definition
of
oil
and
gas
operations,
oil
and
gas
construction
activities
should
be
exempt
from
NPDES
permitting
requirements.
EPA
Response:
See
response
for
Comment
Summary
18.
I­
E1­
061
Comment
Summary
133
We
propose
that
EPA
include
the
drilling
of
stratigraphic,
geothermal,
and
solution
mining
wells
in
the
two
year
postponement.
These
wells
disturb
the
same
amount
of
land,
use
the
same
drilling
rigs
as
oil
and
gas
wells
and
would
also
be
subject
to
the
increased
compliance
costs
associated
with
Phase
II
implementation.
EPA
Response:
EPA
disagrees
with
the
commenters
assertion
that
the
drilling
of
stratigraphic,
geothermal,
and
solution
mining
wells
are
also
worthy
of
an
extension.
In
the
past
year,
EPA
has
dealt
with
oil
and
gas
representatives
regarding
the
potential
impacts
of
the
small
construction
requirements
on
their
segment
of
the
industry.
EPA
has
not
received
any
such
information
indicating
that
the
aforementioned
mining
activities
carry
similar
economic
concerns
or
that
the
Economic
Analysis
performed
as
part
of
the
Phase
II
Rule
development
may
have
inadequately
addressed
those
industrial
activities.
I­
E1­
060
Comment
Summary
134
We
ask
that
EPA
expand
the
proposed
rule's
energy
related
extension
to
the
underground
electric
transmission
and
distribution
construction
projects.
These
construction
projects
involve
the
same
construction
techniques
as
those
used
for
oil
and
gas,
often
use
the
same
trench
as
the
gas
facilities,
and
pose
very
low
potential
for
adverse
impacts
to
surface
waters.
EPA
Response:
EPA
disagrees
with
the
commenters
assertion
that
the
electric
transmission
and
distribution
projects
should
receive
the
same
extension
as
oil
and
gas
related
projects.
In
the
past
year,
EPA
has
dealt
with
oil
and
gas
representatives
regarding
the
potential
impacts
of
the
small
construction
requirements
on
their
segment
of
the
industry.
EPA
has
not
received
any
such
information
indicating
that
electricity
transmission
and
distribution
have
similar
economic
concerns
or
that
the
Economic
Analysis
performed
as
part
of
the
Phase
II
Rule
development
may
have
inadequately
addressed
the
electric
transmission
and
distribution
industry.
I­
E1­
057
Comment
Summary
136
We
believe
that
EPA
lacks
legislative
authority
to
require
storm
water
discharge
permits
for
construction
activities
associated
with
oil
and
gas
exploration,
drilling
and
production.
We
believe
that
the
provision
of
the
Clean
Water
Act
adopted
in
1987
 
Section
402(
l)(
2)
 
excludes
uncontaminated
storm
water
from
oil
and
natural
as
exploration
and
production
facilities
from
the
NPDES
permitting
process.
It
is
inconceivable
that
Congress
intended
to
separate
construction
activity
of
well
sites
and
facilities
from
E&
P
operations.
During
the
two­
year
assessment
period,
EPA
must
carefully
examine
this
issue.
EPA
Response:
See
response
for
Comment
Summary
18.
I­
E1­
051
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
35
March
2003
Page
35
Comment
Summary
137
It
makes
little
sense,
in
terms
of
energy
policy,
to
postpone
the
rule
for
exploration
and
production
functions,
natural
gas
processing
and
the
transportation
functions
without
postponing
application
of
the
rule
to
the
delivery
of
natural
gas
to
the
actual
customer.
In
terms
of
the
number
of
sites
affected,
many
distribution
system
projects
will
fall
in
the
one
to
five
acre
category.
Nationwide,
the
number
of
distribution
sites
could
approach
the
30,000
sites
estimated
for
the
rest
of
the
industry.
EPA
Response:
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.
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,
are
not
included
in
the
terms
described
in
today's
rule
as
potentially
eligible
for
the
two
year
postponement.
I­
E1­
049
Comment
Summary
138
EPA
excludes
SIC
Code
1321
for
gas
plants
and
SIC
codes
46
and
49
associated
with
pipelines
that
are
also
not
under
the
authority
of
the
OK
DEQ.
These
SIC
codes
should
be
added.
EPA
Response:
EPA
did
not
propose
to
take
any
action
with
respect
to
this
regulatory
provision,
and
sought
no
comment
on
it.
This
comment
is
not
relevant
to
today's
action.
I­
E1­
047
Comment
Summary
139
Clearing
grading
and
excavating
activities
associated
with
the
preparation
of
pads,
roads,
pits,
and
facilities
are
an
inherent
part
of
oil
and
gas
operations.
If
clearing,
grading,
and
excavating
activities
at
oil
and
gas
operations
are
not
exempt
from
regulation
under
section
402(
1)(
2),
then
no
oil
and
gas
operations
would
ever
be
entirely
exempt
from
storm
water
regulation
under
section
402(
1)(
2),
and
the
exemption
would
be
rendered
superfluous
or
insignificant.
EPA
Response:
See
response
for
Comment
Summary
18.
I­
E1­
028
Comment
Summary
140
EPA
should
suspend
its
1992
and
2001
guidance
stating
that
clearing,
grading,
and
excavating
activities
at
oil
and
gas
sites
are
not
exempt
under
section
402(
1)(
2),
pending
consideration
during
the
deferral
period
of
the
scope
and
effect
of
section
402(
1)(
2).
EPA
Response:
See
response
for
Comment
Summary
18.
I­
E1­
028
Comment
Summary
141
Marathon
believes
that
land
clearing,
grading
and
excavating
associated
with
the
preparation
of
roads,
pads,
pits,
gathering
lines,
flowlines
and
other
exploration,
production,
processing,
or
treatment
operations
and
transmission
facilities
are
an
integral
part
of
oil
and
gas
operations.
As
such,
uncontaminated
storm
water
discharges
from
land
clearing,
grading
and
excavating
associated
with
oil
and
gas
operations
are
exempt
from
the
NPDES
storm
water
regulation
under
the
Clean
Water
Act
(
CWA)
section
402(
1)(
2).
Marathon
believes
this
exemption
applies
to
all
oil
and
gas
land­
disturbing
activities,
regardless
of
the
acreage
involved
(
either
greater
than
five
acres,
or
between
one
to
five
acres).
EPA
Response:
See
response
for
Comment
Summary
18.
I­
E1­
027
Comment
Summary
142
We
believe
that
' 
production,
processing,
or
treatment
operations,
or
transmission '
includes
flowlines,
gathering
lines
and
small
transmission
lines,
and
should
be
included
in
the
proposed
action.
These
types
of
lines
are
an
integral
part
of
the
production,
processing,
treatment,
and
transmission
process.
We
request
EPA
clarify
that
these
types
of
lines
are
included
in
the
proposed
action
to
delay
the
permit
deadline
for
small
construction
activities.
EPA
Response:
See
response
to
Comment
Summary
137.
I­
E1­
022
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
36
March
2003
Page
36
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
37
March
2003
Page
37
Comment
Summary
143
In
the
event
EPA
proceeds
with
the
proposed
deferral
of
small
oil
and
gas
construction
activity
only,
we
recommend
that
EPA
revise
the
definition
of
"
storm
water
discharge
associated
with
small
construction
activity"
in
22.26(
b)(
15),
as
follows:
(
i)
Except
as
provided
in
subparagraph
(
ii),
construction
activities
including
clearing,
grading,
and
excavating
that
result
in
land
disturbance
of
equal
to
or
greater
than
one
acre
and
less
than
five
acres.
*
*
*(
A)
*
*
*
(
B)
*
*
*(
ii)
In
the
case
of
construction
activities
conducted
at
oil
and
gas
and
related
facilities,
small
construction
activities
shall
only
include
those
activities,
as
defined
in
subparagraph
(
i),
that
occur
after
March
10,
2005.
(
iii)
Any
other
construction
activity
designated
by
the
Director
*
EPA
Response:
EPA
disagrees
with
the
commenters
recommendation
to
modify
122.26(
b)(
15).
However,
EPA
is
postponing
the
permit
authorization
date,
as
detailed
in
122.26(
e)(
8),
until
March
2005.
As
such,
the
final
rule
includes
a
revision
to
122.26(
e)(
8).
See
response
to
Comment
Summary
61.
I­
E1­
040
Comment
Summary
144
Further,
API
believes
that
`
processing,
treatment
and
transmission'
includes
gathering
lines
and
flowlines
that
transport
crude
oil
and
natural
gas
between
the
wellhead
and
processing
plants.
EPA
should
more
clearly
define
that
crude
and
natural
gas
transmission
lines,
as
well
as
refined
petroleum
product
and
chemical
delivery
lines
from
refineries
and
chemical
plants
are
included
in
this
exemption.
Therefore,
EPA
should
clarify
that
construction
activities
on
all
transmission
(
i.
e.
pipeline)
activities
are
also
included
in
the
two­
year
delay
and
associated
study.
EPA
Response:
See
response
to
Comment
Summary
137.
I­
E1­
041
Comment
Summary
145
We
believe
EPA
intended
to
extend
the
permit
deadline
for
natural
gas
distribution,
but
simply
failed
to
say
so
explicitly.
However,
if
EPA
intended
to
exclude
distribution,
AGA
urges
EPA
to
reconsider.
It
would
make
no
sense
to
omit
local
natural
gas
distribution.
EPA
clearly
needs
to
gather
and
evaluate
additional
information
about
all
types
of
natural
gas
transportation
systems
­­
including
local
distribution
as
well
as
pipelines.
EPA
Response:
See
response
to
Comment
Summary
137.
I­
E1­
043
Comment
Summary
146
There
is
no
definition
of
`
transmission'
in
the
Clean
Water
Act,
and
we
have
found
no
legislative
history
explaining
what
Congress
meant
by
the
term
`
transmission'
in
section
402(
1)(
2).
Accordingly,
EPA
has
discretion
to
interpret
the
meaning
of
this
ambiguous
statutory
term.
See
Chevron
v.
NRDC,
467
U.
S.
837,
843
(
1984);
Barnhart
v.
Walfon,
535
US.
212,
21
7
(
2002)
(
a
reasonable
agency
interpretation
of
an
ambiguous
statutory
term
is
entitled
to
Chevron
deference).
A
logical
and
reasonable
interpretation
is
that
the
word
`
transmission'
in
this
context
includes
natural
gas
pipeline
and
distribution
lines
that
transmit
or
transport
natural
gas.
We
see
no
logical,
legal
or
policy
reason
to
exempt
linear
pipeline
projects
from
storm
water
regulation,
but
not
their
smaller
cousins,
the
linear
distribution
line
projects.
EPA
Response:
See
response
to
Comment
Summary
137.
I­
E1­
043
Comment
Summary
147
The
realization
that
the
construction
of
flow
lies,
gathering
lines,
crude
oil
lines,
natural
gas
lines,
and
waterlines
are
all
a
part
of
the
everyday
normal
oil
and
gas
exploration
and
production
operations
and
that
they
are
vital
to
and
necessary
in
order
to
further
develop,
produce,
sell
and
transport
these
resources
and
products.
EPA
Response:
EPA
agrees
with
the
commenters
interpretation
that
flow
lines,
gathering
lines,
crude
oil
lines,
natural
gas
lines,
and
water
lines
are
all
part
of
everyday
normal
oil
and
gas
exploration
and
production
operations
and
as
such
are
included
in
the
2
year
postponement.
I­
E1­
035
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
38
March
2003
Page
38
Comment
Summary
148
We
urge
the
EPA
to
review
the
applicability
of
the
Phase
I
rule,
governing
the
permitting
of
storm
water
discharges
from
oil
and
gas
construction
sites
disturbing
greater
than
five
acres.
If
EPA
determines
that
the
scope
and
effect
of
the
exemption
of
33
U.
S.
C.
§
1342(
l)(
2)
is
to
exclude
construction
activities
at
sites
disturbing
one
to
five
acres,
the
same
exemption
would
apply
to
construction
sites
disturbing
more
than
five
acres.
We
feel
that
construction
activities
at
oil
and
gas
sites
are
covered
by
the
storm
water
permitting
exemption
are
extended
to
oil
and
gas
operations
found
in
40
CFR
122.26
(
c)(
iii)
and
USC
402(
l)(
2),
regardless
of
size.
EPA
Response:
See
responses
to
Comment
Summaries
18.
I­
E1­
022
I­
E1­
041
I­
E1­
052
I­
E1­
062
I­
E1­
064
Comment
Summary
149
We
also
believe
that
no
legal
or
practical
rationale
exists
for
excluding
from
the
deferral
oil
and
gas
construction
activity
that
disturbs
more
than
five
acres
of
land;
this
activity
is
integral
to
oil
and
gas
production.
NPDES
storm
water
permitting
for
all
oil
and
gas
construction
activity
should
be
deferred
pending
the
proposed
review
of
best
practices
and
reevaluation
of
the
scope
and
effect
of
the
oil
and
gas
activity
storm
water
permitting
exemption,
40
CFR
122.26
(
c)
(
iii)
and
USC
402(
l)(
2).
...
We
recommend
that
EPA
modify
40
CFR
§
122.26
as
necessary
to
clearly
incorporate
a
two­
year
deferral
of
all
oil
and
gas
activity
storm
water
construction
permitting.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
040
Comment
Summary
150
The
postponement
should
also
apply
to
the
enforcement
of
applicable
Phase
I
construction
activity
until
the
U.
S.
EPA
has
reevaluated
the
scope
of
33
U.
S.
C.
1342
(
1)(
2)
and
other
storm
water
provisions
of
the
Clean
Water
Act.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
050
Comment
Summary
151
EPA
should
also
postpone
the
permit
authorization
deadline
for
oil
and
gas
construction
activities
greater
than
five
acres
until
the
reevaluation
of
the
scope
and
effect
of
the
exemption
is
completed.
Neither
regulators
nor
operators
should
be
placed
in
the
uncertain
position
of
facing
a
greater
regulatory
burden
largely
based
on
the
calculation
of
the
size
of
a
facility
while
the
entire
regulatory
structure
is
being
reassessed.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
030
I­
E1­
035
I­
E1­
037
I­
E1­
047
I­
E1­
048
Comment
Summary
152
TIPRO
urges
EPA
to
expand
the
deferral
to
include
oil
and
gas
activities
that
disturb
more
than
five
acres
of
land
area
because
(
A)
The
oil
and
gas
exemption
under
section
402(
1)(
2)
is
not
limited
by
land
area
disturbed
and
(
B)
The
legal
and
scientific
issues
for
more
than
five
acre
oil
and
gas
activities
are
intertwined
with
the
issues
for
less
than
five
acre
oil
and
gas
activities,
such
that
these
issues
cannot
rationally
be
considered
separately.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
18.
I­
E1­
028
Comment
Summary
153
By
not
including
oil
and
gas
construction
activities
over
five
acres
in
the
two­
year
delay,
EPA
has
effectively
imposed
a
fiveacre
threshold
for
the
oil
and
gas
exemption
under
CWA
section
402(
1)(
2).
An
acreage
threshold
for
the
availability
of
the
oil
and
gas
exemption
is
neither
legally
nor
scientifically
justifiable 
This
delay
is
necessary
to
review
and
resolve
all
the
legal
and
technical
issues
relating
to
regulating
contaminated
storm
water
discharges
from
oil
and
gas
construction
activities.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
18.
I­
E1­
027
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
39
March
2003
Page
39
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
40
March
2003
Page
40
Comment
Summary
154
In
enacting
Section
402(
1)(
2)
of
the
Clean
Water
Act,
Congress
made
no
mention
of
tract
size,
much
less
a
distinction
between
tracts
of
less
than
five
acres
and
those
of
greater
than
five
acres.
Furthermore,
because
construction
of
the
roads
and
drill
sites
are
an
inherent
part
of
oil
and
gas
activities,
Congress
clearly
intended
to
include
such
construction
activities
in
the
exemption
from
storm
water
regulation
under
the
Clean
Water
Act.
EPA
Response:
See
responses
to
Comment
Summaries
6
and
18.
I­
E1­
039
Comment
Summary
155
We
do
not
believe
that
the
1992
Natural
Resources
Defense
Council
v.
Environmental
Protection
Agency
(
NRDC
v
EPA)
case
compels
the
current
EPA
treatment
of
oil
and
natural
gas
exploration
and
production
facilities.
While
the
court
required
EPA
to
reconsider
its
action
on
construction
activities,
it
did
not
require
that
all
construction
activities
below
five
acres
be
regulated.
Rather,
it
required
EPA
to
justify
its
actions
whatever
they
may
be.
We
would
suggest
that
even
if
EPA
determined
that
some
construction
activities
needed
to
be
permitted
from
one
to
five
acres,
it
was
not
compelled
to
require
all
construction
activities
to
be
permitted.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
026
I­
E1­
030
I­
E1­
048
Comment
Summary
156
EPA's
deferral
should
include
sites
that
are
regulated
under
Phase
I
because
they
disturb
five
or
more
acres
and
sites
that
are
part
of
common
plan
of
development
that
does
so,
in
order
to
allow
an
opportunity
to
consider
the
definition
of
`
common
plan'
during
the
deferral.
EPA
Response:
See
response
to
Comment
Summary
6.
See
also
the
"
common
plan"
discussion
in
the
preamble
to
this
rule.
I­
E1­
026
I­
E1­
041
Comment
Summary
157
No
distinction
is
made
in
the
language
of
the
statute
between
the
development/
construction
phase
of
the
site
nor
the
operation
phase
of
these
oil
and
gas
sites.
Congress
was
quite
clear
and
unequivocal
in
its
exemption:
'[
t]
he
Administrator
shall
not
require
a
permit
under
this
section,
nor
shall
the
Administrator
directly
or
indirectly
require
any
State
to
require
a
permit
for
discharges
of
storm
water
from
*
oil
and
gas
exploration,
production,
processing,
or
treatment
operations
or
transmission
facilities*.'
33
U.
S.
C.
§
1342(
l)(
2)
(
Emphasis
added).
Accordingly,
ATINGP
urges
the
EPA
to
re­
examine
its
interpretation
of
this
exemption
during
this
two­
year
period
of
postponement.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
038
I­
E1­
062
I­
E1­
065
I­
E1­
066
Comment
Summary
158
EPA
has
applied
the
Phase
II
regulations
to
site
preparation
activities
at
oil
and
gas
sites
even
though
the
1987
amendments
to
the
Clean
Water
Act,
33
U.
S.
C.
§
§
1251
et
seq.,
exempt
oil
and
gas
exploration
and
production
from
the
storm
water
permitting
rules.
This
application
is
contrary
to
both
the
intent
and
the
letter
of
the
law 
As
is
clear
in
the
 
language,
storm
water
runoff
from
all
aspects
of
oil
and
gas
operations
is
to
be
exempt
from
permitting
requirements
unless
the
runoff
comes
in
contact
with
one
of
the
materials
listed.
It
is
submitted
that
absent
some
unusual
event
or
accident,
runoff
during
site
preparation
activities
would
not
come
in
contact
with
any
"
raw
material,
intermediate
products,
finished
product,
byproduct
or
waste
product"
located
on
the
site.
As
to
coming
in
contact
with
"
overburden,"
the
legislative
history
of
the
1987
amendments
makes
it
clear
that
this
term
was
to
apply
only
to
mining
operations
and
not
to
oil
and
gas
sites.
The
Senate
version
of
the
proposed
bill
exempted
storm
water
discharges
only
from
oil
and
gas
operations
provided
such
discharges
were
not
'
contaminated
with
process
wastes,
toxic
pollutants,
hazardous
substances,
or
oil
and
grease.'
See
S.
1128,
99th
Cong.
§
401
(
1985).
The
House
version
added
discharges
from
mining
operations
that
'
do
not
come
in
contact
with
any
overburden
raw
material,
or
product
located
on
the'
mining
site
to
the
exemption.
See
H.
R.
8,
99th
Cong.
§
401
(
1985).
It
was
the
Conference
Substitute
bill
that
combined
the
Senate
and
House
versions,
creating
the
current
language.
See
H.
R.
Conf.
Rep.
No.
100­
4,
99th
Cong.,
2d
Sess.,
at
H10576
(
Oct.
15,
1986);
Water
Quality
Act
of
1987,
Pub.
L.
No.
100­
4,
§
401,
101
Stat.
7,
65­
66
(
Feb.
4,
1987).
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
061
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
41
March
2003
Page
41
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
42
March
2003
Page
42
Comment
Summary
159
We
strongly
believe
that
EPA
is
incorrect
in
its
interpretation
that
the
construction
of
roads,
equipment
pads,
gathering
lines,
compressor
stations,
etc.
is
not
included
in
the
scope
and
effect
of
the
exemptions
of
33
U.
S.
C.
1342
(
l)(
2)
and
other
storm
water
provisions
of
the
Clean
Water
Act
(
CWA).
Section
402(
1)
of
the
Clean
Water
Act
exempts
mining
and
oil
and
gas
operations
from
the
requirement
to
obtain
a
permit
under
the
storm­
water
permitting
program
for
uncontaminated
discharges.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
023
I­
E1­
026
I­
E1­
030
I­
E1­
038
I­
E1­
041
I­
E1­
047
Comment
Summary
160
Section
402(
p)
of
the
CWA,
enacted
in
1987,
requires
permits
for
storm
water
discharge
from
industrial
activity.
Section
402(
1)(
2)
of
the
CWA,
which
was
enacted
at
the
same
time
as
section
402(
p),
exempts
oil
and
gas
activities
from
storm
water
regulation 
Congress
did
not
define
the
term
'
industrial
activity'
when
it
enacted
the
statute
in
1987.
The
idea
that
'
industrial
activity'
includes
'
construction
activity'
at
all
is
wholly
EPA's
creation,
as
is
the
idea
that
clearing,
grading,
and
excavating
activities
as
oil
and
gas
sites
are
'
construction
activities'
distinct
from
'
oil
and
gas
activities'.
The
language
of
the
statute,
legislative
history,
and
common
usage,
however,
all
show
that
land
disturbing
activities
ordinarily
associated
with
oil
and
gas
activities
are
exempt
under
section
402(
1)(
2).
It
was
congress'
intent
to
exempt
all
discharges
of
uncontaminated
storm
water
associated
with
oil
and
gas
exploration,
production,
processing,
treatment,
and
transmission,
including
clearing,
grading
and
excavating
activities
ordinarily
associated
with
oil
and
gas
activities.
This
interpretation
is
consistent
with
common
usage
of
the
phrase
'
oil
and
gas
operations.'
Oil
and
gas
operations
begin
with
the
commencement
of
'
drilling
operations.'
Such
operations
include
site
work
in
preparation
for
the
drilling
of
a
well.
When
congress
enacts
laws
it
is
presumed
to
be
aware
of
all
pertinent
judgments
rendered
by
the
courts.
When
a
statute
uses
words
that
have
meaning
under
common
law,
those
words
are
presumed
to
have
their
common
meaning,
unless
the
context
implies
to
the
contrary.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
028
Comment
Summary
161
The
legislative
history
shows
that
Congress
intended
the
oil
and
gas
exemption
to
be
broader
than
the
mining
exemption.
Specifically,
Congress
intended
the
term
'
overburden'
to
apply
only
to
geological
materials
exposed
by
the
mining
industry
and
intended
a
stricter
standard
of
'
contamination'
to
apply
to
discharges
from
mining
activities.
The
reference
to
the
term
'
overburden'
in
section
402(
1)(
2)
does
not
apply
to
oil
and
gas
operations
and
does
not
exclude
storm
water
discharges
from
clearing,
grading,
and
excavating
activities
at
oil
and
gas
operations
from
coverage
by
the
exemption,
regardless
of
whether
it
might
be
argued
that
it
might
exclude
such
discharges
under
the
stricter
standard
for
mining
sites.
The
legislative
history
of
section
402(
1)(
2)
makes
clear
that
the
term
'
overburden'
in
the
statute
was
derived
from
the
addition
of
mining
operations'
to
the
exemption,
and
was
intended
to
apply
to
exposure
of
subsurface
materials
exposed
during
mining
operations 
EPA
has
in
the
past
correctly
recognized
that
the
term
'
overburden'
in
the
statute
is
intended
to
be
specific
to
the
mining
industry.
EPA
regulations
define
overburden
as
'
any
material
of
any
nature,
consolidated
or
unconsolidated,
that
overlies
a
mineral
deposit,
excluding
topsoil
or
similar
naturally
occurring
surface
materials
that
are
not
disturbed
by
mining
operations'.
40
C.
F.
R.
122.26(
b)(
10)
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
028
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
43
March
2003
Page
43
Comment
Summary
162
With
respect
to
mining
operations...
Congress
pointed
EPA
to
more
stringent
background
levels
as
a
threshold,
as
shown
by
the
italicized
language
in
the
following
passage
from
the
conference
report:
'
Permits
are
not
required
where
storm
water
runoff
is
diverted
around
mining
operations
or
oil
and
gas
operations
and
does
not
come
in
contact
with
overburden,
raw
material,
product,
or
process
wastes.
In
addition,
where
storm
water
runoff
is
not
contaminated
by
contact
with
such
materials,
as
determined
by
the
administrator,
permits
are
not
required.
With
respect
to
oil
or
grease
or
hazardous
substances,
the
determination
of
whether
storm
water
is
'
contaminated
by
contact
with'
such
materials,
as
established
by
the
administrator,
shall
take
into
consideration
whether
these
materials
are
present
in
such
storm
water
runoff
in
excess
of
reportable
quantities
under
section
311
of
the
Clean
Water
Act
or
section
102
of
the
Comprehensive
Environmental
Response,
Compensation,
and
Liability
Act
of
1980
or
in
the
case
of
mining
operations,
above
natural
background
levels'.
H.
R.
Conf.
Rep
No.
100­
4,
99th
Cong.,
2d
Sess,
at
H10574.
The
italicized
language
shows
that
congress
intended
reportable
quantities
to
be
considered
as
the
threshold
for
contamination
at
oil
and
gas
sites,
whereas
background
would
be
the
threshold
at
mining
sites.
EPA
dropped
the
use
of
background
levels
for
determining
whether
a
mining
operation
was
exempt
under
section
402(
1)(
2)
due
to
technical
difficulties
in
establishing
background.
Instead,
EPA
requires
a
permit
for
mining
operations
whenever
`
storm
water
runoff
from
mining
operations
come
into
contact
with
any
overburden,
raw
material,
intermediate
products,
finished
products,
byproducts
or
waste
products
located
at
the
site
of
such
operations.'
In
contrast,
EPA
requires
an
oil
and
gas
site
to
obtain
a
permit
only
if
there
has
been
a
reportable
quantity
release
of
oil
or
hazardous
substance
or
discharges
from
the
site
contribute
to
a
violation
of
a
water
quality
standard.
The
courts
have
agreed
that
Congress
intended
a
stricter
standard
for
mining
sites
than
for
oil
and
gas
sites
and
have
upheld
the
difference
between
the
two
types
of
operations
in
EPA's
rules.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
028
Comment
Summary
163
In
the
1995
preamble
to
the
MSGP,
EPA
recognized
that
'
drilling
operations
require
construction
of
access
roads,
drill
pads,
mid
pits,
and
possibly
work
camps
or
temporary
trailers,'
and
surface
impoundments,
as
well
as
site
closures.
The
1995
MSGP
identified
the
pollutant
source
for
such
oil
and
gas
activities
to
be
'
soil/
dirt,
leaking
equipment
and
vehicles,'
with
the
pollutants
of
concern
being
'
TSS,
TDS,
oil
and
grease.'
The
discharges
required
to
obtain
coverage
under
Sector
I
are
specifically
identified
by
EPA
to
include
only
sites
that
had
a
reportable
quantity
release,
as
follows:
'
As
stated
above
and
at
40
C.
F.
R.
122.26(
b)(
14)(
iii),
only
those
oil
and
gas
facilities
that
discharge
'
contaminated;
storm
water
are
required
to
submit
permit
applications
under
the
November
16,
1990
storm
water
rule.
For
oil
and
as
facilities,
contamination
means
there
has
been
a
release
of
a
Reportable
Quantity
(
RQ)
of
oil
or
hazardous
substances
in
storm
water
since
November
16,
1987
(
hereinafter
referred
to
as
an
'
RQ
release')
Only
those
facilities
that
have
had
an
RQ
release
are
required
to
submit
a
storm
water
permit
application.'
An
oil
and
gas
operator
reading
this
guidance
would
conclude
that
clearing,
grading
and
excavating
activities
associated
with
oil
and
gas
activities
would
be
exempt
from
the
permit
requirement
and
would
not
require
coverage
unless
a
RQ
release
had
occurred
at
the
site
during
clearing,
grading
and
excavating
activities.
EPA
Response:
EPA
did
not
propose
any
action
with
respect
to
this
regulatory
provision,
and
is
today
taking
no
action
interpreting
such
provision.
I­
E1­
028
Comment
Summary
164
Section
402(
1)(
2)
 
excludes
uncontaminated
storm
water
from
oil
and
natural
gas
exploration
and
production
facilities
from
the
NPDES
permitting
process.
And,
since
the
municipal
and
industrial
storm
water
discharges
subsection
 
Section
402(
p)
 
is
directed
toward
permitting
of
storm
water
discharges,
it
does
not
override
this
exclusion.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
048
Comment
Summary
165
The
Association
believes,
first,
that
the
proposed
postponement
is
needed
to
avoid
unnecessary
and
counterproductive
litigation
over
U.
S.
EPA's
authority
to
regulate
oil
and
gas
activities
as
contemplated.
When
Congress
amended
the
Clean
Water
Act
in
1987
to
authorize
US.
EPA
to
regulate
storm
water
discharges,
it
specifically
exempted
from
the
permitting
requirements
uncontaminated
storm
water
runoff
from
oil
and
gas
facilities.
Congress
stated:
'
The
Administrator
shall
not
require
a
permit
under
this
section,
nor
shall
the
Administrator
directly
or
indirectly
require
any
State
to
require
a
permit,
for
discharges
of
storm
water
runoff
from
mining
operations
or
oil
and
gas
exploration,
production,
processing,
or
treatment
operations...
which
are
not
contaminated
by
contact
with,
or
do
not
come
into
contact
with,
any
overburden,
raw
material,
intermediate
products,
finished
product,
byproduct,
or
waste
products
located
on
the
site
of
such
operations.
[
33
U.
S.
C.
5
1342(
1)(
2).]'
Construction
activities
are
a
necessary
and
intrinsic
component
of
oil
and
natural
gas
exploration,
production,
processing
and
treatment
operations,
and
thus
are
expressly
exempt
from
U.
S.
EPA's
permitting
authority.
This
is
perhaps
best
illustrated
for
those
who
are
not
familiar
with
the
industry
by
oil
and
gas
exploration
operations,
which,
because
of
the
nature
of
this
particular
natural
resource,
consist
in
major
part
of
drilling
and
related
construction
operations.
Drilling,
in
fact,
is
the
only
way
to
test
for
the
actual
presence
of
these
resources.
It
is
therefore
beyond
belief
that
Congress
intended
to
exempt
oil
and
gas
operations
but
not
the
construction
activities
inherent
to
and
which
make
up
those
operations.
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
44
March
2003
Page
44
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
042
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
45
March
2003
Page
45
Comment
Summary
167
The
need
for
resolution
of
the
Clean
Water
Act,
(
33
USCA
Section
1342
(
1)(
2),
which
specifically
states
that
a
permit
shall
not
be
required
for
uncontaminated
discharges
of
storm
water
runoff
from
oil
&
gas
exploration,
production,
processing,
or
treatment
operations.
It
is
our
strong
opinion
that
Congress
intended
to
exclude
all
oil
and
gas
exploration
and
production
activities,
including
construction
activities,
from
the
storm
water
requirements.
Construction
activities
to
drilling
and
production
sites
are
an
inherent
and
necessary
part
of
the
exploration,
production
and
development
of
the
nations
oil
and
natural
gas
resources.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
035
Comment
Summary
168
To
attempt
to
separate
construction
activity
of
well
sites
and
facilities
from
E&
P
operations
is
no
less
than
an
effort
to
circumvent
the
intent
of
the
United
States
Congress
to
expand
EPA's
jurisdiction
beyond
the
Congressional
authorization.
EPA
Response:
EPA
disagrees
with
the
suggestion
that,
through
today's
action,
it
is
attempting
to
"
circumvent
the
intent"
of
Congress.
I­
E1­
030
Comment
Summary
170
The
Clean
Water
Act
(
CWA)
Section
402(
1)(
2)
provides
that:
'
The
Administrator
shall
not
require
a
permit
under
this
section,
nor
shall
the
administrator
directly
or
indirectly
require
any
State
to
require
a
permit,
for
discharges
of
storm
water
runoff
from
...
oil
and
gas
exploration,
production,
processing,
or
treatment
operations
or
transmission
facilities
composed
entirely
of
flows
which
are
from
conveyances
or
systems
of
conveyances
(
including
but
not
limited
to
pipes,
conduits,
ditches,
and
channels)
used
for
collecting
and
conveying
precipitation
runoff
and
which
are
not
contaminated
by
contact
with,
or
do
not
come
into
contact
with,
any
overburden,
raw
material,
intermediate
products,
finished
product,
byproduct,
or
waste
products
located
on
the
site
of
such
operations.'
COP
believes
that
the
construction
of
roads,
equipment
pads,
gathering
lines,
flowlines
and
transmission
lines
(
i.
e.,
pipelines),
associated
with
oil
and
gas
exploration,
production,
processing,
transmission,
or
treatment
operations,
including
pipelines
for
delivery
of
refined
products
and
chemicals,
is
included
in
the
scope
and
effect
of
33
U.
S.
C.
5
1342(
1)(
2).
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
037
Comment
Summary
171
[
A]
Policy
Clarification
Memorandum
issued
from
the
U.
S.
Department
of
Commerce,
NOAA,
and
USEPA
discusses
an
overlap
of
the
Coastal
Nonpoint
Source
Programs
with
phases
I
and
II
of
the
SW
regulations.
This
memorandum
identifies
ten
management
measures
specified
in
the
NPS
program
guidance
that
overlap
with
NPDES
SW
requirements.
Among
these
ten
are
two
that
directly
relate
to
the
construction
of
oil
and
gas
operations.
They
are
(
1)
Construction
Site
Erosion
and
Sediment
Control,
and
(
2)
Construction
Site
Sediment
Control
Due
to
this
overlap,
the
NPS
source
program
has
not
addressed
these
activities
with
the
understanding
that
they
would
be
adequately
addressed
under
the
NPDES
SW
program.
In
its
policy
Clarification
Memorandum,
NOAA
and
USEPA
state
that
because
of
the
overlap
coastal
NPS
source
programs
are
no
longer
required
to
include
construction
site
erosion
and
sediment
control
management
or
construction
site
chemical
control.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E2­
004
Comment
Summary
172
Based
on
a
technical
review
by
the
SWRCB
staff,
there
is
no
reason
to
believe
that
the
cost
for
implementing
SW
construction
BMPs
for
oil
and
gas
construction
operations 
is
any
greater
than
those
incurred
by
other
entities
subject
to
Phase
II
storm
water
regulations.
EPA
Response:
EPA
acknowledges
the
commenters
assertion
that
there
is
no
reason
to
believe
that
the
cost
for
implementing
storm
water
construction
BMPs
for
oil
and
gas
construction
operations
are
no
greater
than
costs
incurred
by
other
entities
subject
to
Phase
II.
EPA
intends,
however,
to
consider
the
economic
impact
of
the
regulations
on
the
oil
and
gas
industry
and
determine
if
the
level
of
control
dictated
for
other
small
construction
activity
is
appropriate
for
small
oil
and
gas
related
construction
activities.
I­
E2­
004
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
46
March
2003
Page
46
Comment
Summary
173
Many
of
the
30,000
sites
mentioned
in
the
proposed
rule
may
be
located
in
remote
areas
that
are
in,
or
close
proximity
to,
sensitive
natural
resources,
such
as
pristine
water
bodies
and
wetlands.
If
excluded
from
Phase
II,
these
remote
sites
would
have
no
other
management
measures
in
place
(
such
as
those
that
might
occur
in
more
urbanized
areas) 
EPA
Response:
EPA
acknowledges
the
commenters
statement
that
some
of
the
sites
included
in
the
two
year
postponement
may
not
have
management
measures
in
place
to
control
storm
water
discharges.
While
this
may
be
true,
this
is
also
consistent
with
conditions
that
existed
prior
to
the
Phase
II
rule.
While
the
Phase
II
rule
attempted
to
identify
these
issues,
the
Agency
admits
that
small
oil
and
gas
related
construction
activity
was
to
some
extent
overlooked
when
estimating
the
impacts
of
this
rule.
EPA
anticipates
that
any
necessary
changes
to
the
requirements
for
small
oil
and
gas
related
construction
activities
may
address
the
concerns
raised
by
the
commenter
and
be
consistent
with
Congress'
intent
for
excluding
certain
oil
and
gas
related
activities.
I­
E2­
004
Comment
Summary
174
It
is
also
well
documented
that
oil
and
gas
construction
activities,
which
do
not
utilize
appropriate
storm
water
management
practices,
can
have
detrimental
impacts
to
water
quality.
Although
many
oil
and
gas
construction
operations/
projects
may
be
of
short
duration,
they
have
a
high
potential
to
emit
various
harmful
pollutants.
These
include,
but
are
not
limited
to
sediment,
debris,
petroleum
hydrocarbons,
drilling
compounds,
and
other
construction
related
materials 
EPA
Response:
EPA
acknowledges
the
commenters
assertion
regarding
potential
detrimental
impacts
to
water
quality
from
oil
and
gas
construction
activities.
The
Agency
plans
to
evaluate
these
and
other
claims
to
determine
the
appropriate
level
of
control
for
these
sources.
As
described
elsewhere,
EPA
received
information
subsequent
to
promulgation
of
the
Phase
II
rule
indicating
that
a
much
larger
number
of
these
sites
would
be
covered
by
the
Phase
II
regulations
than
had
been
envisioned
by
EPA.
As
such,
EPA
is
postponing
the
permit
deadline
for
two
years
for
the
activities
described
in
the
new
40
CFR
122.26(
e)(
8)
to
provide
the
Agency
with
ample
time
to
evaluate
the
industry
in
more
detail.
I­
E2­
004
Comment
Summary
175
Keeping
all
of
the
exploration
and
production
exemptions
in
place
is
a
must
unless
this
Administration
is
willing
to
tell
this
industry,
and
the
American
public
we
do
not
need
additional
oil
and
gas
from
domestic
sources.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
070
Comment
Summary
176
Instructing
all
state
and
federal
agencies
that
drill
site
and
lease
road
preparation
is
not
to
be
considered
'
construction,'
but
is
an
integral
part
of
the
exploration
and
production
phase
of
the
industry
is
also
needed.
EPA
Response:
See
response
to
Comment
Summary
18.
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
070
Comment
Summary
177
The
new
rules
will
have
little
to
no
affect
in
so
far
as
protecting
streams
from
erosion
or
minor
pollution.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
070
Comment
Summary
179
Under
the
current
rules,
federal
agencies
are
interpreting
the
regulations
in
such
a
manner
as
to
circumvent
the
intent
of
the
law
by
calling
the
building
of
drilling
sites
and
lease
roads
'
construction',
thus
not
affected
by
oil
and
gas
exemption.
Doing
this
threatens
every
drilling
contractor
and
operator
in
the
United
States.
Some
companies
are
already
fighting
court
battles
to
protect
their
interpretation
of
the
law.
Proposed
changes
will
pull
in
every
drill
site
in
the
nation
regardless
of
the
outcome
of
these
court
challenges.
EPA
Response:
See
response
to
Comment
Summary
18.
I­
E1­
070
Comment
Summary
180
No
state
has
the
manpower
or
budget
flexibility
to
efficiently
and
economically
implement
and
enforce
the
proposed
changes.
EPA
Response:
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
47
March
2003
Page
47
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
070
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
48
March
2003
Page
48
Comment
Summary
181
This
[
uncertainty
and
fear
of
litigation]
has
a
negative
revenue
impact
on
not
only
operators,
but
also
service
providers,
county
and
state
governments,
and
the
teacher's
retirement
fund.
This
will
probably
result
in
economic
losses
to
many
communities
and
states,
plus
a
drastic
increase
in
unemployment.
EPA
Response:
See
response
to
Comment
Summary
13.
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
070
Comment
Summary
182
As
we
understand,
the
proposed
changes,
at
least
four,
and
quite
possibly
more,
state
agencies
will
be
drawn
into
the
permitting
process.
These
agencies
are
already
short
of
staff
and
budgets
are
very
tight.
There
will
be
no
new
hires
to
assume
the
increased
load 
The
Scenic
River
Commission
will
need
to
insure
that
no
proposed
site
will
affect
a
scenic
river
within
the
state.
They
have
one
person
on
staff
to
do
this.
The
Oklahoma
Archeology
Survey
has
two
field
people,
but
we
will
be
required
to
use
an
outside
archeologist
for
any
survey
and
they
are
few
and
far
between.
Presently,
these
outside
archeologists
are
running
90
days
or
more
behind
schedule.
This
change
in
the
regulations
will
extend
their
lead­
time
to
well
over
six
months
or
more
behind
schedule.
The
Oklahoma
Historical
Society
has
but
two
people.
The
Fish
and
Wildlife
staff
is
limited
also 
The
investigators
will
not
be
able
to
do
timely
work
and
drilling
activities
could
be
delayed
for
at
least
a
year
or
more
as
they
try
to
play
catch­
up.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
070
Comment
Summary
183
The
potential
for
lawsuits
initiated
by
disgruntled
working
interest
owners,
mineral
owners,
lease
owners
and
others
is
frightening
to
any
operator
who
owns
production
or
plans
to
drill
a
prospect.
The
uncertainty
and
the
fear
of
litigation
will
keep
potential
investors
out
of
an
already
risky
market,
a
market
heavily
dependent
on
outside
monies
to
keep
it
alive.
EPA
Response:
See
response
to
Comment
Summary
13.
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
070
Comment
Summary
184
At
the
present
time
it
takes
around
90
days
to
obtain
an
NPDES
permit
for
a
project
that
is
within
the
confines
of
a
community
not
too
far
from
the
state
capital.
How
long
is
it
going
to
take
to
get
someone
half
way
across
the
state,
especially
if
they
mist
deal
with
hundreds
of
additional
applications
to
what
they
already
have?
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E1­
070
Comment
Summary
185
Proposed
oil
and
gas
pipelines,
sorely
needed
to
get
oil
and
gas
to
market,
will
also
be
affected,
especially
short
lines
from
wellheads
to
delivery
points.
All
of
this
extra
regulatory
burden
for
locations,
short
pipelines
and
small
roads
in
areas
that
usually
pass
across
grasslands
or
cultivated
fields
will
dramatically
hamper
our
ability
to
get
them
installed
and
operating.
EPA
Response:
EPA
acknowledges
that
some
pipelines,
such
as
short
lines
from
wellheads
to
delivery
points,
are
included
in
the
two
year
postponement
to
the
extent
they
fall
within
the
scope
of
activities
described
in
the
new
40
CFR
122.26(
e)(
8).
Details
of
EPA's
interpretation
of
the
term
"
transmission
facilities"
is
provided
elsewhere.
I­
E1­
070
Comment
Summary
186
The
requirements
for
Storm
Water
Pollution
Prevention
Plans
(
SWPPP)
add
many
new
requirements
that
significantly
increase
the
paper
burden
of
compliance
without
associated
environmental
benefit.
Some
of
these
requirements
are:
°
Defining
a
licensed
engineer
as
an
example
of
'
qualified
personnel'
for
Best
Management
Practices
(
BMP)
inspections
infers
a
level
of
expertise
that
is
unnecessary
for
this
permit.°
Requiring
that
weather
conditions
since
the
last
BMP
inspection
be
documented
is
difficult
for
unmanned
remote
facilities
and
of
minimal
benefit.
EPA
Response:
See
response
to
Comment
Summary
6.
I­
E1­
070
Comment
Response
for
Storm
Water
Phase
II
Extension
for
Oil
and
Gas
Related
Construction
Activity
­
Numerically
49
March
2003
Page
49
Comment
Summary
187
Comparing
a
one
acre
oil
and
gas
site
to
a
one
acre
housing
subdivision
or
shopping
center
is
like
comparing
apples
to
oranges.
While
both
activities
may
disturb
one
acre
of
land
the
oil
and
gas
site
does
not
impose
a
permanent
impermeable
foot
print
by
creating
paved
roads
or
thousands
of
square
feet
of
roofed
building
which
concentrate
surface
run
off.
The
oil
and
gas
site
on
the
other
hand
results
in
a
temporary
disturbed
site
that
is
returned
to
the
natural
contour
and
revegetated
with
no
net
loss
of
permeable
area.
EPA
Response:
EPA
appreciates
this
comment
and
will
consider
it
when
contemplating
next
steps
during
the
two­
year
extension.
This
comment
is
not
inconsistent
with
today's
action.
I­
E2­
002
Comment
Summary
188
It
would
be
additional
regulations
that
in
my
opinion
would
be
a
burden
to
the
industry
with
very
little
or
no
real
impact
on
the
environments
in
question.
No
Industry
needs
to
spend
unwarranted
money
on
additional
regulations
that
will
not
help
the
environment
because
if
you
consider
only
just
the
additional
paper
resources
that
will
be
needed
for
these
plans
then
the
balance
of
leaving
the
regulations
as
they
have
been
FAR
outweighs
any
in
this
industry
and
puts
additional
needs
on
others
like
logging
and
the
paper
industry
EPA
Response:
See
response
to
Comment
Summary
6.
EPA
is
postponing
the
permit
deadline
for
certain
oil
and
gas
related
construction
activities
to
determine
the
appropriate
level
of
control
for
storm
water
discharges
from
these
activities.
At
that
time,
the
Agency
expects
to
determine
what
regulations,
or
other
controls
(
if
any),
are
necessary
to
adequately
protect
the
environment.
I­
E2­
001
