1
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
122
[
OW­
2002­
0068;
FRL­
XXXX­
X]

RIN
2040­
AE71
Amendments
to
the
National
Pollutant
Discharge
Elimination
System
(
NPDES)

Regulations
for
Storm
Water
Discharges
Associated
with
Oil
and
Gas
Exploration,

Production,
Processing,
or
Treatment
Operations,
or
Transmission
Facilities.

AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Notice
of
Proposed
Rulemaking.

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

SUMMARY:
Today
EPA
proposes
action
to
codify
in
the
Agency's
regulations
changes
to
the
Federal
Water
Pollution
Control
Act
resulting
from
the
Energy
Policy
Act
of
2005.

This
proposed
action
would
modify
National
Pollutant
Discharge
Elimination
System
regulations
to
provide
that
certain
storm
water
discharges
from
field
activities,
including
construction,
associated
with
oil
and
gas
exploration,
production,
processing,
or
treatment
operations,
or
transmission
facilities
would
be
exempt
from
National
Pollutant
Discharge
Elimination
System
permit
requirements.
This
action
also
encourages
voluntary
application
of
best
management
practices
for
oil
and
gas
field
activities
and
operations
to
minimize
the
discharge
of
pollutants
in
storm
water
runoff
and
protect
water
quality.

DATES:
Comments
must
be
received
on
or
before
[
Insert
date
45
days
after
publication
date
in
the
Federal
Register].
2
ADDRESSES:
Submit
your
comments,
identified
by
Docket
ID
No.
EPA­
HQ­
OW­

2002­
0068
by
one
of
the
following
methods:

 
www.
regulations.
gov:
Follow
the
on­
line
instructions
for
submitting
comments.

 
E­
mail:
ow­
docket@
epa.
gov
 
Mail:
Water
Docket,
Environmental
Protection
Agency,
Mailcode:
4101T,
1200
Pennsylvania
Ave.,
NW,
Washington,
DC
20460.
Please
include
a
total
of
three
copies.

 
Hand
Delivery:
EPA
Docket
Center,
EPA
West,
Room
B102,
1301
Constitution
Ave.,
NW.,
Washington,
DC
20004.
Such
deliveries
are
only
accepted
during
the
Docket's
normal
hours
of
operation,
and
special
arrangements
should
be
made
for
deliveries
of
boxed
information.

Instructions:
Direct
your
comments
to
Docket
ID
No.
EPA­
HQ­
OW­
2002­
0068.
EPA's
policy
is
that
all
comments
received
will
be
included
in
the
public
docket
without
change
and
may
be
made
available
online
at
www.
regulations.
gov,
including
any
personal
information
provided,
unless
the
comment
includes
information
claimed
to
be
Confidential
Business
Information
(
CBI)
or
other
information
whose
disclosure
is
restricted
by
statute.
Do
not
submit
information
that
you
consider
to
be
CBI
or
otherwise
protected
through
www.
regulations.
gov
or
e­
mail.
The
www.
regulations.
gov
website
is
an
"
anonymous
access"
system,
which
means
EPA
will
not
know
your
identity
or
contact
information
unless
you
provide
it
in
the
body
of
your
comment.
If
you
send
an
e­
mail
comment
directly
to
EPA
without
going
through
www.
regulations.
gov
your
e­
mail
address
will
be
automatically
captured
and
included
as
part
of
the
comment
that
is
placed
3
in
the
public
docket
and
made
available
on
the
Internet.
If
you
submit
an
electronic
comment,
EPA
recommends
that
you
include
your
name
and
other
contact
information
in
the
body
of
your
comment
and
with
any
disk
or
CD­
ROM
you
submit.
If
EPA
cannot
read
your
comment
due
to
technical
difficulties
and
cannot
contact
you
for
clarification,

EPA
may
not
be
able
to
consider
your
comment.
Electronic
files
should
avoid
the
use
of
special
characters,
any
form
of
encryption,
and
be
free
of
any
defects
or
viruses.
For
additional
information
about
EPA's
public
docket
visit
the
EPA
Docket
Center
homepage
at
www.
epa.
gov/
epahome/
dockets.
htm.
For
additional
instructions
on
submitting
comments,
go
to
Unit
I.
C
of
the
SUPPLEMENTARY
INFORMATION
section
of
the
document.

Docket:
All
documents
in
the
docket
are
listed
in
the
www.
regulations.
gov
index.

Although
listed
in
the
index,
some
information
is
not
publicly
available,
e.
g.,
CBI
or
other
information
whose
disclosure
is
restricted
by
statute.
Certain
other
material,
such
as
copyrighted
material,
will
be
publicly
available
only
in
hard
copy.
Publicly
available
docket
materials
are
available
either
electronically
in
www.
regulations.
gov
or
in
hard
copy
at
the
Water
Docket,
EPA/
DC,
EPA
West,
Room
B102,
1301
Constitution
Ave.,

NW,
Washington,
DC
20004.
This
Docket
Facility
is
open
from
8:
00
am
to
4:
30
pm,

Monday
through
Friday,
excluding
legal
holidays.
The
Docket
telephone
number
is
(
202)
566­
2426.
The
Public
Reading
Room
is
open
from
8:
30
a.
m.
to
4:
30
p.
m.,
Monday
through
Friday,
excluding
legal
holidays.
The
telephone
number
for
the
Public
Reading
Room
is
(
202)
566­
1744.
4
FOR
FURTHER
INFORMATION
CONTACT:
Jeff
Smith,
Office
of
Wastewater
Management,
Office
of
Water,
Environmental
Protection
Agency
(
4203M)

Environmental
Protection
Agency,
1200
Pennsylvania
Ave.,
NW.,
Washington,
DC
20460;
telephone
number:
(
202)
564­
0652;
fax
number:
(
202)
564­
6431;
e­
mail
address:

smith.
jeff@
epa.
gov.

SUPPLEMENTARY
INFORMATION:

I.
General
Information
A.
Does
this
Action
Apply
to
Me?

Entities
potentially
affected
by
this
action
include
operators
of
oil
and
gas
exploration,
production,
processing
and
treatment,
and
transmission
facilities
and
associated
construction
activities
at
oil
and
gas
sites
that
generally
are
defined
in
the
following
North
American
Industrial
Classification
System
(
NAICS)
codes
and
titles:

211
­
Oil
and
Gas
Extraction,
213111
­
Drilling
Oil
and
Gas
Wells,
213112
­
Support
Activities
for
Oil
and
Gas
Operations,
48611
­
Pipeline
Transportation
of
Crude
Oil
and
48621
­
Pipeline
Transportation
of
Natural
Gas.

This
description
is
not
intended
to
be
exhaustive,
but
rather
provides
a
guide
for
readers
regarding
entities
likely
to
be
affected
by
this
action.
This
description
identifies
the
types
of
entities
that
EPA
is
aware
could
potentially
be
affected
by
this
action.
Other
types
of
entities
not
identified
could
also
be
affected.
To
determine
whether
your
facility
or
company
is
affected
by
this
action,
you
should
carefully
examine
the
applicability
criteria
in
40
CFR
122.26
(
a)(
2),
(
b)(
14)(
x),
(
b)(
15)
and
(
e)(
8).
If
you
have
questions
5
regarding
the
applicability
of
this
action
to
a
particular
entity,
consult
the
person
listed
in
the
preceding
A
FOR
FURTHER
INFORMATION
CONTACT
@

section.

B.
What
Should
I
Consider
as
I
Prepare
My
Comments
for
EPA?

1.
Submitting
CBI.
Do
not
submit
this
information
to
EPA
through
www.
regulations.
gov
or
e­
mail.
Clearly
mark
the
part
or
all
of
the
information
that
you
claim
to
be
CBI.
For
CBI
information
in
a
disk
or
CD
ROM
that
you
mail
to
EPA,
mark
the
outside
of
the
disk
or
CD
ROM
as
CBI
and
then
identify
electronically
within
the
disk
or
CD
ROM
the
specific
information
that
is
claimed
as
CBI).
In
addition
to
one
complete
version
of
the
comment
that
includes
information
claimed
as
CBI,
a
copy
of
the
comment
that
does
not
contain
the
information
claimed
as
CBI
must
be
submitted
for
inclusion
in
the
public
docket.
Information
so
marked
will
not
be
disclosed
except
in
accordance
with
procedures
set
forth
in
40
CFR
Part
2.

2.
Tips
for
Preparing
Your
Comments.
When
submitting
comments,
remember
to:

°
Identify
the
rulemaking
by
docket
number
and
other
identifying
information
(
subject
heading,
Federal
Register
date
and
page
number).

°
Follow
directions
­
The
agency
may
ask
you
to
respond
to
specific
questions
or
organize
comments
by
referencing
a
Code
of
Federal
Regulations
(
CFR)
part
or
section
number.

°
Explain
why
you
agree
or
disagree;
suggest
alternatives
and
substitute
language
for
your
requested
changes.

°
Describe
any
assumptions
and
provide
any
technical
information
and/
or
data
that
you
used.

°
If
you
estimate
potential
costs
or
burdens,
explain
how
you
arrived
at
your
6
estimate
in
sufficient
detail
to
allow
for
it
to
be
reproduced.

°
Provide
specific
examples
to
illustrate
your
concerns,
and
suggest
alternatives.

°
Explain
your
views
as
clearly
as
possible.

°
Make
sure
to
submit
your
comments
by
the
comment
period
deadline
identified.

II.
Background
Information
A.
NPDES
Program
In
1972,
Congress
amended
the
Federal
Water
Pollution
Control
Act
(
more
commonly
referred
to
as
the
Clean
Water
Act
or
CWA)
to
prohibit
the
discharge
of
any
pollutant
to
waters
of
the
United
States
from
a
point
source
except
in
compliance
with
specified
provisions
of
the
CWA,
including
section
402.
The
principal
means
by
which
one
may
lawfully
discharge
pollutants
into
waters
of
the
United
States
is
by
obtaining
authorization
in
an
NPDES
permit
issued
under
CWA
section
402.
Initial
efforts
to
improve
water
quality
under
the
NPDES
program
focused
primarily
on
reducing
pollutants
in
industrial
process
wastewater
and
municipal
sewage.

As
pollution
control
measures
for
industrial
process
wastewater
and
municipal
sewage
were
implemented
and
refined,
it
became
increasingly
evident
that
more
diffuse
sources
of
water
pollution
were
also
significant
causes
of
water
quality
impairment.

Specifically,
storm
water
runoff
draining
large
surface
areas,
such
as
agricultural
and
urban
land,
was
found
to
be
a
major
cause
of
water
quality
impairment,
including
the
non­
attainment
of
designated
beneficial
uses.
As
a
result,
in
1987,
Congress
added
7
Section
402(
p)
of
the
CWA,
which
directs
EPA
to
develop
a
two­
phased
approach
to
regulate
storm
water
discharges
under
the
NPDES
program.

The
first
phase
of
the
national
program
for
controlling
storm
water,
commonly
referred
to
as
A
Phase
I,@
was
promulgated
on
November
16,
1990
(
55
FR
47990).
Phase
I
requires
NPDES
permits
for
storm
water
discharge
from
a
large
number
of
priority
sources,
including
municipal
separate
storm
sewer
systems
(
MS4s)
generally
serving
populations
of
100,000
or
more
and
industrial
activity.
EPA
defined
the
term
A
storm
water
discharge
associated
with
industrial
activity
@

in
a
manner
that
covered
a
wide
variety
of
facilities,
including
construction
activities
that
disturb
at
least
five
acres
of
land
(
40
CFR
122.26(
b)(
14)(
x)).

The
second
phase
of
the
storm
water
program,
A
Phase
II,@
was
promulgated
on
December
8,
1999
(
64
FR
68722).
Phase
II
expanded
the
existing
program
to
include
discharges
of
storm
water
from
smaller
municipalities
in
urbanized
areas
and
from
construction
sites
that
disturb
between
one
and
five
acres
of
land.
(
40
CFR
122.26(
b)(
15)(
i)).
Discharges
from
these
sources
have
generally
needed
permit
authorization
since
March
10,
2003
(
40
CFR
122.26(
e)(
8)).
Phase
II
allows
certain
sources
to
be
excluded
from
the
national
program
based
on
a
demonstrable
lack
of
impact
on
water
quality.
The
Phase
II
rule
also
allows
for
other
sources
not
automatically
regulated
on
a
national
basis
to
be
designated
for
inclusion
based
on
increased
likelihood
for
localized
adverse
impact
on
water
quality.

B.
NPDES
Program
Provisions
Specific
to
Oil
and
Gas
Activities
The
1987
amendments
to
the
CWA
also
added
language
at
Section
402(
l)(
2)
that
exempts
from
NPDES
permitting
requirements
certain
storm
water
discharges
from
oil
8
and
gas
exploration,
production,
processing,
or
treatment
operations
or
transmission
facilities.
That
provision
states
that
A
[
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
runoff
from
mining
operations
or
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.@

On
January
4,
1989,
EPA
promulgated
a
rule
[
National
Pollutant
Discharge
Elimination
System
Permit
Regulations]
that,
among
other
actions,
codified
the
CWA
section
402(
l)(
2)
exemption
at
what
was
then
40
CFR
122.26(
a)(
3).
(
See
54
FR
246).

The
preamble
to
that
rule
explained
that
the
legislative
history
of
CWA
section
402(
l)(
2)

suggests
that,
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
CWA
or
section
102
of
CERCLA.

The
1990
NPDES
Phase
I
storm
water
regulations
also
codified
the
CWA
section
402(
l)(
2)
exemption,
this
time
moving
the
regulatory
exemption
to
40
CFR
122.26(
a)(
2)

for
uncontaminated
storm
water
discharges
from
oil
and
gas
activities
while
also
imposing
permit
requirements
for
storm
water
discharges
associated
with
industrial
9
activities,
including
construction
sites
disturbing
at
least
five
acres
(
40
CFR
122.26(
b)(
14)(
x)).
The
Phase
I
Rule
re­
codification
of
the
CWA
section
402(
l)(
2)

provision
also
revised
the
regulatory
language
to
specify
that
the
"
Director
may
not
require
a
permit"
rather
than
the
section
402(
l)(
2)
language
that
specifies
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
these
discharges.
This
change
helped
clarify
that
States
may
not
require
permits
for
these
discharges
under
the
NPDES
program.

The
rule
also
codified
at
122.26(
c)(
1)(
iii)
the
conditions
which
would
be
considered
indicative
of
contamination
by
contact
with
overburden,
raw
material,

intermediate
products,
finished
product,
byproduct,
or
waste
products
located
on
the
site
and
would
thus
necessitate
an
NPDES
storm
water
permit
application
by
oil
and
gas
exploration,
production,
processing
or
treatment
operations
or
transmission
facilities.

Section
122.26(
c)(
1)(
iii)
provides
as
follows:

(
iii)
The
operator
of
an
existing
or
new
discharge
composed
entirely
of
storm
water
from
an
oil
or
gas
exploration,
production,
processing,
or
treatment
operation,
or
transmission
facility
is
not
required
to
submit
a
permit
application
in
accordance
with
paragraph
(
c)(
1)(
i)
of
this
section,
unless
the
facility:

(
A)
Has
had
a
discharge
of
storm
water
resulting
in
the
discharge
of
a
reportable
quantity
for
which
notification
is
or
was
required
pursuant
to
40
CFR
117.21
or
40
CFR
302.6
at
anytime
since
November
16,
1987;
or
10
(
B)
Has
had
a
discharge
of
storm
water
resulting
in
the
discharge
of
a
reportable
quantity
for
which
notification
is
or
was
required
pursuant
to
40
CFR
110.6
at
any
time
since
November
16,
1987;
or
(
C)
Contributes
to
a
violation
of
a
water
quality
standard.

EPA
based
this
interpretation
of
contamination
on
the
legislative
history
of
section
402(
l)(
2),
which
directed
EPA
to
consider
whether
reportable
quantities
(
RQs)
of
oil
or
grease
or
hazardous
substances
under
either
the
CWA
or
CERCLA
had
been
exceeded
in
determining
whether
storm
water
from
oil
and
gas
operations
had
been
contaminated
by
contact
with
overburden,
raw
material,
intermediate
products,
finished
products,

byproduct,
or
waste
products.

Shortly
after
issuance
of
EPA's
first
general
permit
specific
to
storm
water
discharges
associated
with
construction
activity
(
Final
NPDES
General
Permits
for
Storm
Water
Discharges
From
Construction
Sites,
September
9,
1992,
57
FR
41176),

EPA
Region
8
raised
a
question
to
EPA
Headquarters
about
the
applicability
of
the
permit
requirements
for
oil
and
gas­
related
construction
activities.
On
December
10,

1992,
EPA
Headquarters
sent
a
memorandum
to
EPA
Region
8
stating
that
all
construction
activities
that
disturb
five
or
more
acres
must
apply
for
a
permit,
including
those
construction
activities
associated
with
oil
and
gas
activities.

This
memorandum
was
challenged
by
a
collection
of
trade
associations
who
asserted
that
the
memorandum
was
unlawful
and
requested
that
the
court
set
it
aside
as
inconsistent
with
the
CWA.
The
United
States
Court
of
Appeals
for
the
Fourth
Circuit
dismissed
this
challenge
on
the
grounds
that
the
internal
EPA
memorandum
itself
did
not
11
constitute
an
action
reviewable
by
the
courts.
Appalachian
Energy
Group
v.
EPA,
33
F.
3d.
319,
322
(
4th
Cir.
1994).

As
noted
previously,
EPA
promulgated
the
final
Phase
II
Storm
Water
Rule
on
December
8,
1999
with
a
requirement
that
storm
water
discharges
from
small
construction
activities
(
those
disturbing
between
one
and
five
acres)
obtain
NPDES
permit
coverage
beginning
on
March
10,
2003.
Based
on
public
comments
on
the
January
9,
1998
proposed
Phase
II
rule,
EPA
had
considered
including
oil
and
gas
exploration
sites
in
its
economic
analysis
for
the
rulemaking,
but
further
analysis
suggested
that
few,
if
any,
of
these
sites
would
actually
disturb
more
than
one
acre
of
land.
Economic
Analysis
of
the
Final
Phase
II
Storm
Water
Rule,
October
1999
(
see
p
4­

2).
Accordingly,
EPA
decided
that
separate
analysis
of
this
sector
was
unnecessary.

After
promulgating
the
final
Phase
II
Rule,
EPA
became
aware
that
close
to
30,000
oil
and
gas
sites
annually
may,
in
fact,
be
affected.
EPA
now
believes
that
the
majority
of
such
sites
may
exceed
one
acre
when
the
acreage
attributed
to
lease
roads,
pipeline
rightof
ways
and
other
infrastructure
facilities
is
apportioned
to
each
site.

In
light
of
this
new
information,
on
March
10,
2003,
EPA
published
a
rule
(
the
"
deferral
rule")
that
postponed
until
March
10,
2005,
the
permit
authorization
deadline
for
NPDES
storm
water
permits
for
oil
and
gas
construction
activity
that
disturbs
one
to
five
acres
of
land.
This
extension
allowed
EPA
to
analyze
and
better
evaluate
(
1)
the
impact
of
the
permit
requirements
on
the
oil
and
gas
industry,
(
2)
the
appropriate
best
management
practices
(
BMPs)
for
preventing
contamination
of
storm
water
runoff
resulting
from
construction
associated
with
oil
and
gas
exploration,
production,

processing,
or
treatment
operations
or
transmission
facilities,
and
(
3)
the
scope
and
effect
12
of
section
402(
l)(
2)
and
other
storm
water
provisions
of
the
Clean
Water
Act.
68
FR
11325.

Between
2003
and
2005,
EPA
gathered
information
on
size,
location
and
other
site
characteristics
to
better
evaluate
compliance
costs
associated
with
the
control
of
storm
water
runoff
from
oil
and
gas
construction
activities.
EPA
met
with
various
stakeholders
and
visited
a
number
of
oil
and
gas
sites
with
construction­
related
activities,

to
discuss
and
review
existing
BMPs
for
preventing
contamination
of
storm
water
runoff
resulting
from
construction
associated
with
these
oil
and
gas
activities.
Additionally,

EPA
gathered
economic
data
for
the
industry
and
initiated
an
economic
impact
analysis
of
the
existing
Phase
II
regulations
specific
to
the
oil
and
gas
industry.
EPA's
preliminary
analysis
indicated
that
there
could
be
significant
and
potentially
costly
administrative
delays
in
the
permitting
process
for
oil
and
gas
construction
sites
that
were
not
considered
in
the
original
economic
analysis
for
the
1999
Phase
II
rulemaking.
As
a
result,
on
March
9,
2005,
EPA
further
postponed
the
date
for
NPDES
regulation
for
an
additional
15
months
until
June
12,
2006,
to
provide
additional
time
for
the
Agency
to
complete
its
evaluation
of
the
economic
and
legal
issues
that
were
raised
and
to
assess
appropriate
procedures
and
methods
for
controlling
storm
water
discharges
from
these
sources
to
mitigate
impacts
on
water
quality.

A
collection
of
trade
associations
petitioned
the
United
States
Court
of
Appeals
for
the
Fifth
Circuit
for
review
of
the
March
10,
2003
deferral
rule.
The
petitioners
asserted
that
the
deferral
rule
represents
the
Agency
=

s
first
acknowledgment
that
the
NPDES
regulations
apply
to
construction
activities
associated
with
oil
and
gas
activities,

but
that
such
regulations
are
inconsistent
with
CWA
section
402(
l)(
2).
On
June
16,
2005,
13
the
Fifth
Circuit
dismissed
the
petition
on
the
grounds
that
the
issue
is
not
ripe
for
review.

Specifically,
the
Court
acknowledged
EPA's
ongoing
analysis
of
this
issue
and
indicated
that
"
any
interpretation
[
of
CWA
section
402(
l)(
2)]
we
would
provide
would
necessarily
prematurely
cut
off
EPA's
interpretive
process."
Texas
Independent
Producers
and
Royalty
Owners
Ass'n,
et
al.
v.
EPA,
413
F.
3d
479,
483
(
5th
Cir.
2005).

III.
Description
of
Proposed
NPDES
Program
Modifications
A.
Objectives
EPA
Seeks
to
Achieve
in
Today's
Proposal
The
primary
purpose
of
today's
proposed
rule
is
to
propose
modifications
to
the
NPDES
regulations
in
40
CFR
Part
122
based
on
changes
to
the
Clean
Water
Act
(
CWA)

resulting
from
the
Energy
Policy
Act
of
2005
language
(
See
Pub.
L.
109­
58,
119
Stat.

694
(
codified
as
amended
at
33
U.
S.
C.
§
1362
(
2005))).
A
second
purpose
is
to
encourage
voluntary
application
of
best
management
practices
(
BMPs)
for
oil
and
gas
field
activities
and
operations,
including
construction,
to
provide
additional
protection
of
water
quality
from
potential
storm
water
discharges.

On
August
8,
2005,
the
President
signed
into
law
the
Energy
Policy
Act
of
2005.

Section
323
of
the
Energy
Policy
Act
of
2005
added
a
new
paragraph
(
24)
to
section
502
of
the
CWA
to
define
the
term
"
oil
and
gas
exploration,
production,
processing,
or
treatment,
or
transmission
facilities"
to
mean
"
all
field
activities
or
operations
associated
with
exploration,
production,
processing,
or
treatment
operations,
or
transmission
facilities,
including
activities
necessary
to
prepare
a
site
for
drilling
and
for
the
movement
and
placement
of
drilling
equipment,
whether
or
not
such
field
activities
or
operations
may
be
considered
to
be
construction
activities."
This
term
is
used
in
CWA
section
14
402(
l)(
2)
of
the
CWA
to
identify
oil
and
gas
activities
for
which
EPA
shall
not
require
NPDES
permit
coverage
for
certain
storm
water
discharges.
The
effect
of
this
statutory
change
is
to
make
construction
activities
at
oil
and
gas
sites
eligible
for
the
exemption
established
by
CWA
section
402(
l)(
2).
EPA
interprets
this
extension
of
the
statutory
exemption
to
include
construction
of
drilling
sites,
drilling
waste
management
pits,
and
access
roads
as
well
as
construction
of
the
transportation
and
treatment
infrastructure
such
as
pipelines,
natural
gas
treatment
plants,
natural
gas
pipeline
compressor
stations
and
crude
oil
pumping
stations.

The
action
is
being
published
in
the
Federal
Register
as
a
proposed
rule
to
provide
the
public
and
interested
stakeholders
with
the
opportunity
to
comment
on
this
rulemaking.

B.
Today's
Regulatory
Approach
1.
Requirements
for
Regulated
Entities
under
Today's
Proposal
Today
=

s
action
proposes
to
codify
changes
to
section
502,
subpart
(
24)
("
Oil
and
Gas
Exploration
and
Production
Defined")
of
the
Clean
Water
Act
(
CWA)
into
EPA
regulations
in
40
CFR
Part
122
("
EPA­
Administered
Permit
Programs:
The
National
Pollutant
Discharge
Elimination
System
[
NPDES]").
Specifically,
the
language
in
the
Energy
Policy
Act
of
2005,
signed
by
the
President
on
August
8,
2005,
states
that
section
502
of
the
CWA
would
be
amended
by
adding
the
following
subparagraph
at
the
end
of
the
current
section:
"(
24)
OIL
AND
GAS
EXPLORATION
AND
PRODUCTION.
 

The
term
`
oil
and
gas
exploration,
production,
processing,
or
treatment
operations
or
transmission
facilities'
means
all
field
activities
or
operations
associated
with
exploration,
production,
processing,
or
treatment
operations,
or
transmission
facilities,
15
including
activities
necessary
to
prepare
a
site
for
drilling
and
for
the
movement
and
placement
of
drilling
equipment,
whether
or
not
such
field
activities
or
operations
may
be
considered
to
be
construction
activities."

In
extending
this
statutory
extension
at
CWA
section
402(
l)(
2)
to
oil
and
gas
construction
activities,
Congress
did
not
differentiate
among
operations
on
the
basis
of
the
size
of
the
disturbed
acreage.
Accordingly,
there
is
no
distinction
in
today's
proposal
as
to
whether
the
amount
of
disturbed
acreage
is
less
than
1
acre,
between
1
and
5
acres,

or
greater
than
5
acres.
Hence,
discharges
from
"
large"
construction
activity
(
disturbing
at
least
5
acres)
at
oil
and
gas
facilities
would
be
eligible
for
the
exemption
from
NPDES
permitting
requirements
under
today's
proposal
to
the
same
extent
as
discharges
from
small
construction
activity
at
such
facilities.

In
addition
to
the
construction
of
drilling
sites,
drilling
waste
management
pits,

and
access
roads,
EPA
also
interprets
the
specific
phrase
in
the
statutory
language
"
all
field
activities
or
operations"
[
emphasis
added]
as
being
applicable
to
construction
of
infield
treatment
plants
and
the
transportation
infrastructure
(
e.
g.,
crude
oil
and
natural
gas
pipelines,
natural
gas
treatment
plants
and
both
natural
gas
pipeline
compressor
and
crude
oil
pump
stations)
necessary
for
the
operation
of
most
producing
oil
and
gas
fields.
Such
construction
activities
would
thus
be
eligible
for
the
CWA
section
402(
l)(
2)
exemption
from
NPDES
permitting
requirements.

This
proposed
regulation
would
implement
Congress'
intention,
in
the
Energy
Policy
Act
of
2005,
to
exclude
virtually
all
oil
and
gas
construction
activities
from
regulation
under
the
NPDES
storm
water
program.
However,
consistent
with
the
language
of
CWA
section
402(
l)(
2),
the
proposed
regulatory
changes
would
not
exclude
16
oil
and
gas
construction
activities
from
regulation
under
the
NPDES
storm
water
program
when
such
field
activities
or
operations
discharge
storm
water
that
has
been
contaminated
by
contact
with
" 
any
overburden,
raw
material,
intermediate
products,
finished
product,
byproduct
or
waste
products
located
on
the
site
of
such
operations."
[
CWA
section
402(
l)(
2)].

The
legislative
history
of
CWA
section
402(
l)(
2)
provided
guidance
to
EPA
in
interpreting
the
phrase
"
contaminated
by
contact
with."
It
provides
as
follows:

"
The
substitute
[
final
version
of
the
bill]
provides
that
permits
are
not
required
where
stormwater
runoff
is
diverted
around
mining
operations
or
oil
and
gas
operations
and
does
not
come
in
contact
with
overburden,
raw
material,
product,
or
process
waste.
In
addition,
where
stormwater
runoff
is
not
contaminated
by
contact
with
such
materials,
as
determined
by
the
Administrator,
permits
are
also
not
required.
With
respect
to
oil
or
grease
or
hazardous
substances,
the
determination
of
whether
stormwater
is
`
contaminated
by
contact
with'
such
materials,
as
established
by
the
Administrator,
shall
take
into
consideration
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."

Based
on
this
language,
EPA
codified
its
interpretation
of
"
contaminated
by
contact
with"
at
122.26(
c)(
1)(
iii).
It
provides
that
oil
and
gas
operations
are
exempt
except
where
17
their
discharges
contribute
reportable
quantities
of
oil
or
grease
or
hazardous
substances
to
waters
of
the
United
States
or
contribute
to
a
violation
of
a
water
quality
standard.

However,
a
plain
reading
of
CWA
section
402(
l)(
2)
suggests
that
sites
where
runoff
is
not
contaminated
by
contact
with
raw
material,
intermediate
products,
finished
product,
byproduct
or
waste
products
located
at
the
site
are
not
required
to
obtain
NPDES
permits,
even
in
situations
where
the
runoff
might
be
contributing
to
a
violation
of
water
quality
standards.
At
the
time
that
EPA
promulgated
122.26(
c)(
1)(
iii),
EPA
believed
it
reasonable
to
presume
that
causing
or
contributing
to
a
violation
of
water
quality
standards
was
an
indication
of
contamination
as
envisioned
in
the
statute.
However,
now
that
Congress
has
explicitly
extended
the
exemption
to
construction
activities
associated
with
oil
and
gas
operations,
EPA
believes
this
presumption
may
no
longer
be
valid
in
some
instances.
For
example,
sediment
in
runoff
related
to
the
clearing
of
ground
or
construction
of
an
access
road
could
cause
or
contribute
to
a
water
quality
standard
violation
even
where
the
runoff
does
not
come
into
contact
with
raw
material,

intermediate
products,
finished
product,
byproduct
or
waste
products
located
at
the
site.

For
this
reason,
EPA
is
proposing
to
clarify
in
122.26(
a)(
2)(
ii)
that
a
water
quality
standard
violation
for
sediment
alone
does
not
trigger
a
permitting
requirement.
Because
most
substances
for
which
an
RQ
has
been
established
are
the
types
of
materials
(
eg,
oil,

grease,
toxic
or
hazardous
chemicals)
that
would
likely
not
be
present
in
storm
water
discharge
from
an
oil
or
gas
site
other
than
through
contact
with
exposed
raw
material,

intermediate
products,
finished
product,
byproduct
or
waste
products,
EPA
would
generally
consider
an
exceedance
of
an
RQ
as
indicative
of
contamination.
This
would
be
true
whether
such
contact
occurred
during
or
after
construction.
Sediment,
in
contrast,
18
could
easily
be
present
in
the
discharge
even
without
such
contact,
and
thus
in
and
of
itself
would
not
lead
to
a
determination
of
contamination
through
contact.
Sediment
could
serve
as
a
vehicle
for
discharges
of
oil
or
grease
or
hazardous
substances
(
e.
g.,

heavy
metals)
and
if
an
RQ
is
exceeded
or
a
water
quality
standard
violated
for
such
a
pollutant,
such
contamination
could
trigger
permitting
requirements.
EPA
believes
that
this
interpretation
is
fully
consistent
with
Congress'
intent
in
enacting
the
2005
amendments
to
CWA
section
402(
l)(
2),
which
specifically
included
within
the
scope
of
that
exemption
construction
activities
associated
with
oil
and
gas
sites.

Finally,
EPA
proposes
to
reorganize
regulatory
language
in
122.26(
a)(
2)
to
create
two
new
paragraphs:
(
i)
and
(
ii).
EPA
believes
this
change
is
consistent
with
the
existing
regulatory
framework
provided
in
122.26(
c)(
1)(
iii)
and
(
iv)
to
separate
mining
and
oil
and
gas
requirements.
Proposed
paragraph
(
i)
merely
recodifies
existing
requirements
at
122.26(
c)(
1)(
iv)
for
storm
water
discharges
from
mining
operations
that
come
into
contact
with,
any
overburden,
raw
material,
intermediate
products,
finished
products,

byproduct,
or
waste
products
located
on
the
site
of
such
operations."
Proposed
paragraph
(
ii)
clarifies
permit
requirements
for
storm
water
discharges
from
oil
and
gas
sites
consistent
with
the
discussion
provided
above.
In
addition,
EPA
is
proposing
to
add
a
note
to
the
regulations
encouraging
operators
of
oil
and
gas
field
activities
or
operations
to
implement
and
maintain
Best
Management
Practices
(
BMPs)
to
minimize
the
discharge
of
pollutants,
to
include
sediment,
in
storm
water
both
during
and
after
construction
activities
to
help
protect
surface
water
quality
during
storm
events.

Additional
discussion
of
the
importance
of
these
activities
is
provided
in
Section
III.
B.
3.
19
Today's
proposed
rulemaking
would
apply
to
all
States,
Federal
lands
and
Indian
Country
regardless
of
whether
EPA
is
the
NPDES
permitting
authority.
Discharges
that
would
be
exempted
from
NPDES
permit
requirements
in
today's
proposal
would
be
exempted
from
such
NPDES
requirements
regardless
of
whether
EPA
or
a
State
is
the
permitting
authority.
EPA
wishes
to
clarify,
however,
that
today's
proposal
is
not
intended
to
interfere
with
the
States'
ability
to
regulate
any
discharges
through
a
State's
non­
NPDES
program.
However,
if
a
State
were
to
require
a
permit
for
discharges
exempt
from
the
Clean
Water
Act
NPDES
program
requirements,
the
State's
permit
requirement
would
not
be
considered
part
of
the
State's
EPA­
approved
NPDES
program.

See
40
CFR
123.1(
i)(
2).

2.
Timeframe
for
Final
Rule
EPA
intends
to
issue
a
final
rulemaking
in
advance
of
the
June
12,
2006
deadline
by
which
oil
and
gas
construction
sites
that
disturb
one
to
five
acres
of
land
are
currently
scheduled
to
obtain
NPDES
permits
for
their
discharges.
If
finalized
as
proposed,
EPA's
final
rulemaking
would
effectively
exempt
all
field
activities
or
operations
associated
with
oil
and
gas
exploration,
production,
processing
or
treatment
and
transmission
construction
activities
from
regulation
under
the
NPDES
storm
water
permitting
program,
except
in
accordance
with
122.26(
a)(
2)(
ii)
and
(
c)(
1)(
iii).

3.
Best
Management
Practices
(
BMPs)

In
accordance
with
CWA
section
402(
l)(
2),
today's
proposed
rule
does
not
require
[
emphasis
added]
that
operators
select,
install,
and
maintain
Best
Management
Practices
(
BMPs)
to
minimize
discharges
of
pollutants
(
including
sediment)
in
storm
water;

however,
the
Agency
is
adding
a
note
within
the
regulatory
text
encouraging
[
emphasis
20
added]
operators
of
oil
and
gas
field
activities
or
operations
to
institute
these
practices
both
during
and
after
construction
activities
whenever
practicable.

Installation
of
effective
BMPs
would
provide
additional
measures
to
help
protect
surface
water
during
storm
events.
Appropriate
controls
would
be
those
suitable
to
the
site
conditions,
both
during
and
after
the
period
of
construction,
and
consistent
with
generally
accepted
engineering
design
criteria
and
manufacturer
specifications.
Selection
of
BMPs
could
also
be
affected
by
seasonal
or
climate
conditions.

Most
storm
water
controls
for
construction
activities
can
be
grouped
into
three
classes:
(
a)
erosion
and
sediment
controls;
(
b)
storm
water
management
measures;
and
(
c)

good
housekeeping
practices.
Erosion
and
sediment
controls
address
pollutants
(
e.
g.,

sediment)
in
storm
water
generated
from
the
site
during
active
construction­
related
work.

Storm
water
management
measures
result
in
reductions
of
pollutants
in
storm
water
discharged
from
the
site
after
the
construction
has
been
completed.
Good
housekeeping
measures
are
those
practices
employed
to
manage
materials
on
the
site
and
control
litter.

While
not
explicitly
required
by
regulation,
some
good
housekeeping
practices
may
be
necessary
to
ensure
that
runoff
satisfies
the
conditions
in
122.26(
a)(
2)(
ii)
and
(
c)(
1)(
iii)

for
eligibility
for
the
permitting
exemption.

Effective
soil
erosion
and
sedimentation
control
typically
is
accomplished
through
the
use
of
a
suite
of
BMPs.
Operators
should
design
control
measures
that
collectively
address
the
multiple
needs
of
holding
soil
in
place,
diverting
storm
water
around
active
areas
with
bare
soil,
slowing
water
down
as
it
crosses
the
site,
and
providing
settling
areas
for
soil
that
has
become
mobilized.
21
The
value
of
EPA's
recommended
oil
and
gas
construction
site
BMPs
has
already
been
recognized
by
many
oil
and
gas
site
operators.
Under
the
sponsorship
of
the
Independent
Petroleum
Association
of
America,
the
oil
and
gas
industry
developed
guidance
entitled
"
Guidance
Document:
Reasonable
and
Prudent
Practices
for
Stabilization
(
RAPPS)
of
Oil
and
Gas
Construction
Sites,"
Horizon
Environmental
Services,
Inc.,
April
2004,
that
describes
the
application
of
appropriate
BMPs
based
on
general
geographical
location
and
the
distance,
slope,
and
amount
of
vegetative
cover
between
the
construction
activity
and
the
nearest
water
body.
This
document
is
a
relatively
simple,
common
sense
approach
to
mitigating
environmental
consequences
arising
from
a
variety
of
oil
and
gas
construction
activities.
The
document
has
been
widely
publicized
and
a
large
number
of
independent
oil
and
gas
operating
companies
have
informed
EPA
that
they
have
adopted
the
practices
outlined
in
the
document
in
their
day­
to­
day
field
construction
activities.

4.
Other
Federal,
State,
Tribal,
and/
or
Local
Controls
EPA
expects
that
operators
will
comply
with
applicable
Federal,
State,
Tribal,

and/
or
local
controls
on
oil
and
gas
construction
activities.
For
example,
today's
action
does
not
affect
existing
requirements
established
under
section
404
of
the
CWA
for
discharges
of
dredge
and
fill
materials
to
waters
of
the
United
States,
including
requirements
as
they
apply
to
wetlands.
Similarly,
the
proposed
rule
does
not
affect
decisions
made
at
the
local
level
on
the
need
for
enhanced
protection
of
local
water
resources.
As
such,
this
proposed
rulemaking
would
not
curtail
the
ability
of
an
appropriate
environmental
management
agency
(
e.
g.,
State,
Tribal
or
local
government)

from
imposing
specific
discharge
conditions
on
an
oil
and
gas
operator
that
would
22
otherwise
be
exempted
under
today's
proposed
rule
so
long
as
these
requirements
are
imposed
pursuant
to
authority
other
than
an
EPA­
approved
NPDES
program.
For
example,
a
State
or
tribe
could
choose,
under
its
own
authorities,
to
set
limits
or
require
that
an
operator
meet
certain
discharge
conditions
in
sensitive
watersheds.

IV.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
Under
Executive
Order
12866,
(
58
FR
51735
(
October
4,
1993))
the
Agency
must
determine
whether
the
regulatory
action
is
A
significant
@

and
therefore
subject
to
OMB
review
and
the
requirements
of
the
Executive
Order.
The
Order
defines
A
significant
regulatory
action
@

as
one
that
is
likely
to
result
in
a
rule
that
may:

(
1)
have
an
annual
effect
on
the
economy
of
$
100
million
or
more
or
adversely
affect
in
a
material
way
the
economy,
a
sector
of
the
economy,
productivity,
competition,

jobs,
the
environment,
public
health
or
safety,
or
State,
local,
or
tribal
governments
or
communities;

(
2)
create
a
serious
inconsistency
or
otherwise
interfere
with
an
action
taken
or
planned
by
another
agency;

(
3)
alter
materially
the
budgetary
impact
of
entitlements,
grants,
user
fees,
or
loan
programs
or
the
rights
and
obligations
of
recipients
thereof;
or
(
4)
raise
novel
legal
or
policy
issues
arising
out
of
legal
mandates,
the
President
=

s
priorities,
or
the
principles
set
forth
in
the
Executive
Order.

Pursuant
to
the
terms
of
Executive
Order
12866,
EPA
has
determined
that
this
is
a
"
significant
regulatory
action"
within
the
meaning
of
the
Executive
Order.
EPA
has
23
submitted
this
action
to
OMB
for
review.
Changes
made
in
response
to
OMB
suggestions
or
recommendations
will
be
documented
in
the
public
record.

B.
Paperwork
Reduction
Act
This
proposed
rule
would
not
impose
an
information
collection
burden
under
the
provisions
of
the
Paperwork
Reduction
Act,
44
U.
S.
C.
3501,
et
seq.,
as
this
rulemaking
is
deregulatory
and
imposes
no
new
requirements.

Burden
means
the
total
time,
effort,
or
financial
resources
expended
by
persons
to
generate,
maintain,
retain,
or
disclose
or
provide
information
to
or
for
a
Federal
agency.

This
includes
the
time
needed
to
review
instructions;
develop,
acquire,
install,
and
utilize
technology
and
systems
for
the
purposes
of
collecting,
validating,
and
verifying
information;
processing
and
maintaining
information,
and
disclosing
and
providing
information;
adjust
the
existing
ways
to
comply
with
any
previously
applicable
instructions
and
requirements;
train
personnel
to
be
able
to
respond
to
a
collection
of
information;
search
data
sources;
complete
and
review
the
collection
of
information;
and
transmit
or
otherwise
disclose
the
information.

An
Agency
may
not
conduct
or
sponsor,
and
a
person
is
not
required
to
respond
to
a
collection
of
information
unless
it
displays
a
currently
valid
OMB
control
number.
The
OMB
control
numbers
for
EPA
=

s
regulations
are
listed
in
40
CFR
Part
9.

C.
Regulatory
Flexibility
Act
The
Regulatory
Flexibility
Act
(
RFA),
5
U.
S.
C.
601
et
seq.,
generally
requires
an
agency
to
prepare
a
regulatory
flexibility
analysis
of
any
rule
subject
to
notice
and
comment
rulemaking
requirements
under
the
Administrative
Procedure
Act
or
any
other
statute
unless
the
agency
certifies
that
the
rule
will
not
have
a
significant
economic
24
impact
on
a
substantial
number
of
small
entities.
Small
entities
include
small
businesses,

small
organizations,
and
small
governmental
jurisdictions.
For
purposes
of
assessing
the
impacts
of
today
=

s
final
rule
on
small
entities,
small
entity
is
defined
as:
(
1)
a
small
business
based
on
Small
Business
Administration
size
standards;
(
2)
a
small
governmental
jurisdiction
that
is
a
government
of
a
city,
county,
town,
school
district
or
special
district
with
a
population
of
less
than
50,000;
and
(
3)
a
small
organization
that
is
any
not­
for­
profit
enterprise
which
is
independently
owned
and
operated
and
is
not
dominant
in
its
field.

After
considering
the
economic
impacts
of
today's
proposed
rule
on
small
entities,
I
certify
that
this
action
would
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
In
determining
whether
a
rule
would
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities,
the
impact
of
concern
is
any
significant
adverse
economic
impact
on
small
entities,
since
the
primary
purpose
of
the
regulatory
flexibility
analyses
is
to
identify
and
address
regulatory
alternatives
"
which
minimize
any
significant
economic
impact
of
the
rule
on
small
entities."
5
USC
603
and
604.
Thus,
an
agency
may
certify
that
a
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities
if
the
rule
relieves
regulatory
burden,
or
otherwise
has
a
positive
economic
effect
on
all
of
the
small
entities
subject
to
the
rule.
Today
=

s
proposed
rule,
by
expanding
the
universe
of
oil
and
gas
operations
eligible
for
the
NPDES
permit
exemption
created
by
CWA
section
402(
l)(
2),

would
relieve
the
regulatory
burden
for
certain
discharges
associated
with
construction
activity
at
exploration,
production,
processing,
or
treatment
operations,
or
transmission
25
facilities
to
obtain
an
NPDES
storm
water
permit.
We
have
therefore
concluded
that
today's
proposed
rule
would
relieve
a
regulatory
burden
for
all
affected
small
entities.

D.
Unfunded
Mandates
Reform
Act
Title
II
of
the
Unfunded
Mandates
Reform
Act
of
1995
(
UMRA),
Pub.
L.
104­
4,

establishes
requirements
for
Federal
agencies
to
assess
the
effects
of
their
regulatory
actions
on
State,
local,
and
tribal
governments
and
the
private
sector.
Under
section
202
of
the
UMRA,
EPA
generally
must
prepare
a
written
statement,
including
a
cost­
benefit
analysis,
for
proposed
and
final
rules
with
"
Federal
mandates"
that
may
result
in
expenditures
to
State,
local,
and
tribal
governments,
in
the
aggregate,
or
to
the
private
sector,
of
$
100
million
or
more
in
any
one
year.
Before
promulgating
an
EPA
rule
for
which
a
written
statement
is
needed,
section
205
of
the
UMRA
generally
requires
EPA
to
identify
and
consider
a
reasonable
number
of
regulatory
alternatives
and
adopt
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
that
achieves
the
objectives
of
the
rule.
The
provisions
of
section
205
do
not
apply
when
they
are
inconsistent
with
applicable
law.
Moreover,
section
205
allows
EPA
to
adopt
an
alternative
other
than
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
if
the
Administrator
publishes
with
the
final
rule
an
explanation
why
that
alternative
was
not
adopted.

Before
EPA
establishes
any
regulatory
requirements
that
may
significantly
or
uniquely
affect
small
governments,
including
tribal
governments,
it
must
have
developed
under
section
203
of
the
UMRA
a
small
government
agency
plan.
The
plan
must
provide
for
notifying
potentially
affected
small
governments,
enabling
officials
of
affected
small
governments
to
have
meaningful
and
timely
input
in
the
development
of
EPA
regulatory
proposals
with
significant
Federal
intergovernmental
mandates,
and
informing,
26
educating,
and
advising
small
governments
on
compliance
with
the
regulatory
requirements.

Today's
proposed
rule
contains
no
Federal
mandates
(
under
the
regulatory
provisions
of
Title
II
of
the
UMRA)
for
State,
local,
or
tribal
governments
or
the
private
sector.
The
proposed
rule
imposed
no
enforceable
duty
on
any
State,
local
or
tribal
governments
or
the
private
sector.
Thus,
today
=

s
proposed
rule
is
not
subject
to
the
requirements
of
sections
202
and
205
of
the
UMRA.

E.
Executive
Order
13132:
Federalism
Executive
Order
13132,
entitled
A
Federalism
@

(
64
FR
43255,
August
10,
1999),

requires
EPA
to
develop
an
accountable
process
to
ensure
A
meaningful
and
timely
input
by
State
and
local
officials
in
the
development
of
regulatory
policies
that
have
federalism
implications.@
The
phrase
A
Policies
that
have
federalism
implications
@

is
defined
in
the
Executive
Order
to
include
regulations
that
have
A
substantial
direct
effects
on
the
States,

on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government.@

This
proposed
rule
does
not
have
federalism
implications.
It
would
not
have
substantial,
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government,
as
specified
in
Executive
Order
13132.
Thus,
Executive
Order
13132
does
not
apply
to
this
rule.

F.
Executive
Order
13175:
Consultation
and
Coordination
with
Indian
Tribal
Governments
27
Executive
Order
13175,
entitled,
A
Consultation
and
Coordination
with
Indian
Tribal
Governments
@

(
65
FR
67249,
November
9,
2000),
requires
EPA
to
develop
an
accountable
process
to
ensure
A
meaningful
and
timely
input
by
tribal
officials
in
the
development
of
regulatory
policies
that
have
tribal
implications.@
This
proposed
rule
does
not
have
any
Tribal
implications
as
specified
in
Executive
Order
13175.
It
would
not
have
substantial
direct
effects
on
Tribal
governments,
on
the
relationship
between
the
Federal
government
and
Indian
tribes,
or
on
the
distribution
of
power
and
responsibilities
between
the
Federal
government
and
Indian
tribes,
as
specified
in
Executive
Order
13175.
Thus,
Executive
Order
13175
does
not
apply
to
this
rule.
EPA
specifically
solicits
additional
comment
on
this
proposed
rule
from
tribal
officials.

G.
Executive
Order
13045:
Protection
of
Children
from
Environmental
Health
and
Safety
Risks
Executive
Order
13045,
A
Protection
of
Children
from
Environmental
Health
Risks
and
Safety
Risks
@

(
62
FR
19885,
April
23,
1997),
applies
to
any
rule
that:
(
1)
is
determined
to
be
A
economically
significant
@

as
defined
under
Executive
Order
12866,
and
(
2)
concerns
an
environmental
health
or
safety
risk
that
EPA
has
reason
to
believe
may
have
a
disproportionate
effect
on
children.
If
the
regulatory
action
meets
both
criteria,

the
Agency
must
evaluate
the
environmental
health
or
safety
effects
of
the
planned
rule
on
children,
and
explain
why
the
planned
regulation
is
preferable
to
other
potentially
effective
and
reasonably
feasible
alternatives
considered
by
the
Agency.
This
proposed
rule
is
not
subject
to
the
Executive
Order
because
it
is
not
economically
significant
as
defined
under
Executive
Order
12866,
and
because
the
Agency
does
not
have
reason
to
28
believe
the
environmental
health
or
safety
risks
addressed
by
this
action
present
a
disproportionate
risk
to
children.

H.
Executive
Order
13211:
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use
This
proposed
rule
is
not
a
"
significant
energy
action"
as
defined
in
Executive
Order
13211,
"
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,

Distribution,
or
Use
(
66
FR
28355
(
May
22,
2001))
because
it
is
not
likely
to
have
a
significant
adverse
effect
on
the
supply,
distribution,
or
use
of
energy.

I.
National
Technology
Transfer
and
Advancement
Act
Section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
of
1995
(
A
NTTAA
@),
Pub
L.
No.
104­
113,
section
12(
d)
(
15
U.
S.
C.
272
note)
directs
EPA
to
use
voluntary
consensus
standards
in
its
regulatory
activities
unless
to
do
so
would
be
inconsistent
with
applicable
law
or
otherwise
impractical.
Voluntary
consensus
standards
are
technical
standards
(
e.
g.,
materials
specifications,
test
methods,
sampling
procedures,

and
business
practices)
that
are
developed
or
adopted
by
voluntary
consensus
standard
bodies.
The
NTTAA
directs
EPA
to
provide
Congress,
through
OMB,
explanations
when
the
Agency
decides
not
to
use
available
and
applicable
voluntary
consensus
standards.

This
proposed
rulemaking
does
not
involve
technical
standards.
Therefore,
EPA
is
not
considering
the
use
of
any
voluntary
consensus
standards.

List
of
Subjects
in
40
CFR
Part
122
29
Administrative
practice
and
procedure,
Confidential
business
information,

Environmental
protection,
Hazardous
substances,
Reporting
and
recordkeeping
requirements,
Water
pollution
control.

Dated:

Stephen
L.
Johnson,

Administrator
For
the
reasons
set
forth
in
the
preamble,
Chapter
I
of
Title
40
of
the
Code
of
Federal
Regulations
is
proposed
to
be
amended
as
follows:
30
PART
122
B
EPA
ADMINISTERED
PERMIT
PROGRAMS:
THE
NATIONAL
POLLUTANT
DISCHARGE
ELIMINATION
SYSTEM
1.
The
authority
citation
for
part
122
continues
to
read
as
follows:

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

Subpart
B
­
[
Amended]

2.
Amend
§
122.26
as
follows:

a.
Revise
paragraph
(
a)(
2)
to
add
two
new
subsections
(
i)
and
(
ii),
and
b.
Revised
pargraph
(
e)(
8);

The
additions
and
revisions
read
as
follows:

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

122.35).

(
a)
*
*
*

(
2)
The
Director
may
not
require
a
permit
for
discharges
of
storm
water
runoff
from
the
following:

(
i)
Mining
operations
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
that
have
not
come
into
contact
with,
any
overburden,
raw
material,
intermediate
products,
finished
product,
byproduct
or
waste
products
located
on
the
site
of
such
operations,
except
in
accordance
with
§

122.26(
c)(
1)(
iv).

(
ii)
All
field
activities
or
operations
associated
with
oil
and
gas
exploration,

production,
processing,
or
treatment
operations,
or
transmission
facilities,
including
31
activities
necessary
to
prepare
a
site
for
drilling
and
for
the
movement
and
placement
of
drilling
equipment,
whether
or
not
such
field
activities
or
operations
may
be
considered
to
be
construction
activities,
except
in
accordance
with
§
122.26(
c)(
1)(
iii).
Discharges
of
sediment
from
construction
activities
associated
with
oil
and
gas
exploration,
production,

processing,
or
treatment
operations,
or
transmission
facilities
are
not
subject
to
the
provisions
of
122.26(
c)(
1)(
iii)(
C).

[
NOTE
TO:
122.26(
a)(
2)(
ii):
EPA
encourages
operators
of
oil
and
gas
field
activities
or
operations
to
implement
and
maintain
Best
Management
Practices
(
BMPs)
to
minimize
discharge
of
pollutants,
to
include
sediment,
in
storm
water
both
during
and
after
construction
activities
to
help
ensure
protection
of
surface
water
quality
during
storm
events.
Appropriate
controls
would
be
those
suitable
to
the
site
conditions
and
consistent
with
generally
accepted
engineering
design
criteria
and
manufacturer
specifications.
Selection
of
BMPs
could
also
be
affected
by
seasonal
or
climate
conditions.

*
*
*
*
*

(
e)
*
*
*

(
8)
For
any
storm
water
discharge
associated
with
small
construction
activities
identified
in
paragraph
(
b)(
15)(
i)
of
this
section,
see
§
122.21(
c)(
1).
Discharges
from
these
sources
require
permit
authorization
by
March
10,
2003,
unless
designated
for
coverage
before
then.
