February 9, 2005 The Honorable Stephen L. Johnson
Acting Administrator
U.S. Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460 Dear Administrator Johnson: We are writing to you regarding the Environmental Protection Agency's (EPA's) proposed rule entitled, "Extension of National Pollutant Discharge Elimination System (NPDES) Permit Deadline for Storm Water Discharges for Oil and Gas Construction Activity That Disturbs One to Five Acres", which was published in the Federal Register on January 18, 2005 (70 FR 2832) (EPA Water Docket, ID # OW-2002-0068; FRL-7862-1). This NPDES permit deadline extension was originally proposed on December 30, 2002 (67 FR 78116) to give the oil and gas industry a two-year extension of the March 10, 2003 deadline for compliance with the regulations entitled, "A National Pollution Discharge Elimination System-Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges," and commonly referred to as the "storm water phase II regulations." On February 20, 2003, we wrote to you opposing this initial two-year waiver from storm water permitting for the oil and gas industry. Today we are again urging you to reconsider your proposal to exempt the oil and gas industry from phase II storm water permitting. According to the proposed rule, the EPA is proposing this additional fifteen month extension, until June 12, 2006, in order to complete its economic impact analysis, evaluate legal and procedural implications related to phase II permitting at oil and gas construction sites, and investigate procedures for controlling storm water discharges to mitigate impacts on water quality. The proposed rule provides that, during the past two years, EPA collected economic and technical data for the oil and gas industry related to storm water permitting requirements. The rule further provides that EPA is more confident that the U.S. Department of Energy's estimate of 30,000 oil and gas starts per year represents a reasonable estimate of the additional sites that should have been considered when EPA promulgated the phase II rule in 1999 (64 FR 68722). We understand that the Agency evaluation, thus far, is focused on the oil and gas industry's compliance costs with the rule. However, no evidence or data has been provided to support this waiver from regulation. The proposal provides that EPA's analysis to date recognizes the "administrative delays" in the permitting process that were not considered in the original economic analysis for the phase II regulation. The EPA Fact Sheet accompanying the rule notes that the Agency's preliminary analysis indicates that indirect costs of storm water permitting associated with permit delays and lost revenue are significantly greater than direct costs associated with developing storm water pollution prevention plans and implementing best management practices. Additionally, EPA concludes that these indirect costs result from operators having to engage in protracted discussions on Endangered Species Act issues with the Fish and Wildlife Service (FWS) and the National Marine and Fisheries Service (NMFS) or on historic properties with state agencies who implement the National Historic Preservation Act. We have obtained information that indicates EPA=s preliminary analysis does not quantify the environmental benefits that will result if a greater number of these sites are covered by the phase II storm water regulation. The preamble to the phase II storm water final rule states: Over a short period of time, storm water runoff from construction site activity can contribute more pollutants, including sediment, to a receiving stream than had been deposited over several decades...Storm water runoff from construction sites can include pollutants, other than sediment, such as phosphorous and nitrogen, pesticides, petroleum derivatives, construction chemicals, and solid wastes that may be mobilized when land surfaces are disturbed...Expected benefits [of the rule as a whole] include reduced scouring and erosion of streambeds, improved aesthetic quality of waters, reduced eutrophication of aquatic systems, benefit to wildlife and endangered and threatened species, tourism benefits, biodiversity benefits and reduced costs for siting reservoirs...(See 68 FR 68758, 68722 (December 8, 1999)). EPA's analysis of issues related to this proposal should include the environmental benefits of phase II permitting on oil and gas construction activities. We are seriously concerned that EPA is foregoing the expected environmental benefits of this rule by continuing to exempt the oil and gas industry from the phase II storm water permitting requirements. The proposal provides that, in response to comments from stakeholders, EPA is evaluating the Clean Water Act (CWA) Section 402(1)(2) criteria which exempts certain storm water discharges from oil and gas activities to occur without a NPDES permit. In our February 20, 2003 letter we expressed our concerns about exempting the oil and gas industry based on this criteria from the phase II requirements and also the current phase I program which has been in place since 1990. To exempt these discharges from permitting, more than twelve years after they were first required to be permitted, would seriously disrupt the level playing field for water quality regulation and undermine the intent of the law. We would like your responses to the following questions. 1. What data is EPA relying on to show that granting this extension will not adversely affect human health and the environment? 2. What is EPA's basis for concluding that the Department of Energy=s estimate of oil and gas starts is reasonable? Does EPA know the number of oil and gas construction sites affected by the phase II storm water rule? 3. Why is there a need for an additional fifteen months for the Agency to complete its economic impact analysis and evaluation of legal, procedural, and compliance issues related to the rule? 4. What has prevented EPA from completing its evaluation of the rule's impact on the oil and gas industry during the two-year extension period; and what will prevent another extension to the deadline in the future? 5. How is EPA quantifying the indirect costs from Aadministrative delays@ in the permitting process related to consultation with state agencies on historical properties and with the FWS and NMFS on Endangered Species Act issues? 6. Please specify the industrial sectors that have to obtain storm water permits under phases I and II of the storm water program. Please provide data summarizing each sectors' compliance with these requirements. EPA has no justification for continuing to extend the compliance date for one industrial sector when over 5,000 communities and every construction project between one and five acres in every other sector of the economy has had to comply with this regulation on time, since March 10, 2003. Section 402(l) of the CWA does not support exempting construction activities at oil and gas sites from storm water permitting. Continued delay in compliance with the phase II storm water requirements by the oil and gas industry will negatively affect water quality. Sincerely, Senators: Jim Jeffords, John Kerry, Paul Sarbanes, Barbara Boxer, Frank Lautenberg, Dianne Feinstein, Charles Schumer, Ron Wyden and Russ Feingold