Letter to The Honorable Stephen L. Johnson Administrator U.S. Environmental Protection Agency
The Honorable Stephen L. Johnson
U.S. Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Avenue, NW
W ashington, D~ 20460
Dear Administrator Johnson:
Weare writing regarding the Environmental Protection Agency's (E A's) proposed rule, entitled, "Amendments to the National Pollutant Discharge Elimin tion System (NPDES) Regulations for Stormwater Discharges Associated with Oil d Gas
Exploration, Production, Processing, or Treatment Operations, or Trans ission Facilities," which was published in the Federal Register on January 6,2 06 (71 FR 894) (EPA Water Docket, ill #OW-2002-0068). This proposed rule purport to implement
section 323 of the Energy Policy Act of 2005, which added a new para aph to section 502 of the Clean Water Act to define the term "oil and gas exploration, roduction, processing, or treatment, or transmission facilities." Instead of simply i plementing this change intended by Congress, the proposed rule incorrectly interprets t e 1987 Clean ater Act by excluding sediment contamination as a factor that may ca se a normally exempt activity under oil and gas exploration and production to require stormwater permit. This proposal contradicts the seventeen-year-old NPDES regul tions on this ubject under the guise of Congressional intent where none exists. The ater quality implications of excluding sediment as a permitting factor are significant Sediment clouds water, decreases photosynthetic activity, reduces the viability of quatic plants and animals, and can ultimately destroy animals and their habitat.
We strongly disagree with the Agency taking this action under the ise of Congressional intent. The exemption created under Section 323 of the nergy Policy Act of 2005 represents a significant rollback in Clean Water Act protection. The EP A's
proposed action would not only implement this exemption, but it would take additional, unjustified steps to roll back even further clean water protections in wa that are inconsistent with the plain language of Section 323. Attached are our s ecific comments on the proposed rule (Attachment A).
We would like your responses to the following requests:
The EP A docket for this rulemaking (EP A-HQ-OW -2002-0068) contains correspondence from Ernest Angelo, a petroleum engineer from idland, Texas, to Karl Rove, Senior Advisor to the President, and responses to t .s letter from Karl Rove and Tracy Meehan, Assistant Administrator, Office 0 Water, EP A (Attachment B). Please explain the impact of this corresponden e on the January 6,2006 proposed rulemaking and the EP A's 2003 and 2005 stormwater permitting rules that postponed NPDES permit regulation for oil ~d gas construction activities.
2. The EP A docket for the January 6, 2006 proposed rulemaking al~o contains comments from the Office of Management and Budget (OMB) indicating that OMB originated the idea to eliminate sediment from the definitidn of contamination (Attachment C), which EP A has included in this proposed rule. Please explain why the EP A did not originally include this language in its proposal, what justification OMB provided for inserting these changes to the original EP A rulemaking, and what effect this change would have on human health and the environment.
3. EPA's proposal provides new clarification that a water quality standard violation for sediment alone, under 40 CPR section 122.26(a)(2)(ii), does not trigger a permitting requirement. EP A offers no other justification for this action than its "belief' regarding Congressional intent. As explained in Attachrilent A, there is nothing in the legislative history which suggests that this change regarding sediment had even entered the mind of any member of Congress as it considered the Energy Policy Act of2005, and there is ample legislative history to demonstrate that this proposal is contrary to the express intent of Congress when it enacted section 402(1)(2) of the Clean Water Act in 1987. Please specify your rationale for this new interpretation and explain how it is consistent with the legislative history of the Clean Water Act and the intent of Congress in enacting
the Energy Policy Act of 2005.
4 EP A's proposal implies that a water quality standard violation due to sediment is somehow not as serious as a water quality standard violation due to some other pollutant. Please explain how this action is consistent with section 303(c) of the
Clean Water Act, which establishes the beneficial uses that must be taken into account when establishing water quality standards.
5, We are aware that EPA's own studies show that sediment is one of the leading causes of water pollution across the nation. For example, in 1998 EPA reported, "siltation is the largest cause of impaired water quality in rivers," (National Pollutant Discharge Elimination System -Regulations for Revision of the WaterPollution Control Program Addressing Stonn Water Discharges, 64 Fed. Reg. 68728 (Dec. 8, 1999)). Additionally, EPA identified numerous ways in which sediment interferes with designated and existing uses of the nation's waters in its protocol for developing sediment TMDLs (EP AU .S. EP A Protocol for Developing Sediment TMDLs, Washington, DC 1999, available at www.epa.gov/owow/trndVsediments/pdf/sediment.pdf.) Please explain why the EP A is taking an action regarding sediment in this proposal that is inconsistent with the findings of these studies.
We urge the EP A to drop its proposed modifications to section 122.26 dealing with discharges of sediment from its rulemaking and limit any action the Agency takes to the statutory requirements of the Energy Policy Act of 2005. Thank you for your
consideration and reply.
Jim Jeffords Frank Lautenberg
Barbara Boxer Ron Wyden
John Kerry Russ Feingold