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 E1 002 I E1 003 I E1 005 I E1 006 I E1 007 I E1 008 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 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 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 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 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. 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: 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. 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 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  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. 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  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. 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 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)