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

Comment Summary 2 Under Executive Order 12866, ( 58 FR51735, Oct. 4, 1993), EPA must determine whether the regulatory action is " significant" and, therefore, subject to OMB review if the annual effect on the economy is $ 100 million or more. The annual cost to the oil and gas industry will easily exceed $ 100 million and will likely be several times greater, which is not in accordance with Executive Order 12866. EPA Response: EPA disagrees with the commenters assertion that this rule will easily exceed $ 100 million and thus, is not in accordance with Executive Order 12866. This rule, promulgated herein, is solely postponing the permit deadline for small oil and gas construction activities. If, two years from now, EPA determines that certain additional storm water controls are necessary for small oil and gas related construction activities, and those activities have an annual effect on the economy of $ 100 million or more, EPA plans to provide for OMB review. I E1 023 I E1 035 I E1 057 Comment Summary 3 EPA incorrectly stated that only a few oil and gas drilling sites actually disturb more than one acre of land. Virtually all sites are larger than one acre, but smaller than five acres. Therefore, all future drilling locations would be subject to the storm water regulations. In the EPA cost analysis of the Phase II program, it estimated that the number of construction starts would be approximately 130,000 units. But, none of these units were oil and gas facilities. Oil and gas facilities alone would increase the number of units by 25 percent with a third of that total coming from the two states of Texas and Oklahoma where EPA Region 6 must handle the administrative burdens. The ultimate effect of this could be staggering. EPA Response: EPA acknowledges that a far greater number of small oil and gas related construction activities will be impacted by the Phase II rule than had been estimated during the rulemaking process. Specifically to address this concern, EPA has postponed the permit deadline for these facilities for two years to allow EPA to better analyze storm water control from this sector. I E1 023 I E1 026 I E1 030 Comment Summary 4 We think it is an appropriate action to postpone the permit deadline to further evaluate and resolve the various issues including the lack of an economic impact analysis of the Phase II rules on oil and gas industry, the impact on the national economy, and small businesses. Consideration of any additional regulation must be based on studies designed to determine whether or not such regulation is warranted from a technical, practical, and economic basis. EPA Response: EPA acknowledges the commenters statement and is postponing the permit deadline for those small construction activities associated with oil and gas activities described in the new 40 CFR 122.26( e)( 8). I E1 022 I E1 035 I E1 039 Comment Summary 5 EPA assumed that the Phase II rule would affect few if any oil and gas facilities, and therefore EPA did not include oil and gas exploration sites in the Economic Analysis of the Phase II rule. The notice states that EPA recently learned from the Department of Energy that there are 30,000 oil and gas starts per year, most of which affect more than one acre. AGA would like to draw EPAs attention to a similar lack of information about natural gas pipeline and distribution projects in the Phase II Economic Analysis. EPA may have also assumed that few of these projects would be affected, but in fact we estimate that our 190 members will have a total of about 20,000 30,000 small pipeline and distribution projects per year that will affect between one and five acres. EPA Response: As part of the Phase II rulemaking, the Agency evaluated many facets of construction and construction related activity associated with residential and commercial building, including utility line construction. Small construction associated with natural gas distribution lines was evaluated during Phase II rulemaking, with costs of such included in the Phase II Economic Analysis. I E1 043 Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 2 March 2003 Page 2 Comment Summary 6 If the oil and gas industry was subject to the NPDES permitting process the cost of drilling oil and natural gas wells would increase markedly. EPA Response: EPA recognizes the concerns expressed by those in the construction and oil and gas industries that NPDES permitting requirements may impose burdens on them. To the extent that these concerns are related to construction that will disturb at least five acres of total land area, or will disturb less than five acres but is part of a common plan of development that will ultimately disturb five acres or more, this action has no impact on any requirements that might impose burdens. EPA did not propose to take any action with respect to such " large" construction activity, and did not seek comment on any such action. EPA declines to respond to comments relating to such activity. To the extent that these concerns are related to small construction activity as described in 40 CFR § 122.26( b)( 15), this action merely postpones the deadline for permit coverage for certain operators. This action does not create any additional burdens. The potential impact of compliance with the CGP on activities described in the new 40 CFR § 122.26( e)( 8) will be the subject of analysis to be conducted during the two year stay of the Phase II rule's applicability. The Agency will not make conclusions regarding impacts until such analysis has been performed. In addition, to further ease any potential burdens on oil and gas operators, EPA intends to identify appropriate best management practices specific to oil and gas exploration, production, processing or treatment operations, or transmission facilities during the 2 year permitting stay. I E1 038 I E1 066 I E1 068 I E1 070 I E2 001 Comment Summary 7 In its decision to propose a delay, it is obvious that EPA misjudged the impact and burden of imposing Phase II requirements resulting in unnecessary costs and delays. EPA Response: See response to Comment Summary 6. I E1 026 I E1 030 Comment Summary 8 My company is not in a position to deal with the extra costs and burdens associated with additional storm water permitting associated with drilling my wells. EPA Response: See response to Comment Summary 6. The Agency notes that economic impacts on small businesses are always a factor on whether its rules are promulgated, and will likewise be for this rule. I E1 031 Comment Summary 9 The impact of imposing such permit requirements will serve only to delay drilling and drive up energy costs, and exacerbate an already tenuous domestic energy supply situation. EPA Response: See response to Comment Summary 6. EPA notes the objective of the NPDES permitting program is to protect and improve water quality in waters of the US. There are many economic and health benefits associated with clean water and that all stakeholders must share the burden of protecting our nation's surface waters. I E1 051 Comment Summary 10 Under the new Phase II rules, eighty to eighty five percent of the wells drilled in New York would require a storm water discharge permit. None of the oil and gas wells drilled annually in New York disturb five acres or more but the vast majority of new wells in our state would exceed the one acre threshold. EPA Response: EPA acknowledges many oil and gas exploration sites will be between one and five acres. I E1 060 Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 3 March 2003 Page 3 Comment Summary 11 Few, if any, of the operators have staff qualified to develop storm water pollution prevention plans. Any work associated with the development of these plans would have to be contracted out to consultants. The costs to complete this work are new expenses, which have not previously incurred. Consulting costs for T& E inspections: $ 500 per well; Hiring contractor to conduct maintenance and inspections until 70% revegetation: $ 450/ day, and assuming one inspection every two weeks, not including inspections after major rain events: $ 11,700 per well per year. EPA Response: See response to Comment Summary 6. Prevention of erosion and sediment is a skill that should be familiar to any construction operator. EPA notes that the construction operator, not the oil and gas well drilling / extraction activity operator, is the logical choice for being the permittee, just as the builder of a chemical factory is the operator ( for permitting purposes) during the construction phase, not the operator of the plant once manufacturing begins. I E1 023 I E1 044 I E1 060 Comment Summary 12 The requirements for Storm Water Pollution Prevention Plans ( SWPPP) add many new requirements that significantly increase the paper and cost burden of compliance without associated environmental benefit. These requirements have also introduced delays into a time sensitive process. Some of these requirements are: defining a licensed engineer as an example of ' qualified personnel' for Best Management Practices ( BMP) inspections infers a level of expertise that is unnecessary for this permit. EPA Response: See response to Comment Summary 6. The proposed permit defines qualified personnel as " a person knowledgeable in the principles and practice of erosion and sediment controls." While a licensed engineer is provided as an example of such, it is not meant to be exclusive of others. I E1 034 I E1 047 I E1 052 Comment Summary 13 The requirement to obtain permit coverage creates the potential for delay in drill rig scheduling, loss of leases, and loss of reserves, the impacts of which have not been considered. If made broadly applicable to oil and gas development through the CGP, these requirements have the potential to be used to delay or defeat exploration and production of oil and gas leases on private lands, thereby causing the leases to be lost, along with recovery of U. S. oil and gas reserves. EPA Response: See response to Comment Summary 6. While today's action does nothing to affect the processes for challenging an NPDES permit, challenges cannot be used arbitrarily to delay or defeat eligible projects from occurring. I E1 026 I E1 028 I E1 070 Comment Summary 14 In addition, surface owners, opposed to oil and gas activities on land where the mineral interest is owned by another person may try to use these requirements to delay or defeat oil and gas projects. EPA Response: See response to Comment Summary 13. I E1 028 Comment Summary 15 There is little gain from these changes and much to lose in the way of added costs and regulatory burden. Most drilling contractors told us that 90% of the wells drilled in 2001 would not be drilled if they had to comply with the massive paperwork requirements mandated under the storm water regulations. In an effort to be conservative, we reduced that to a 70% reduction in drilling for independents and 40% for major oil companies. Of the 38,527 wells drilled in 2001, 25,034 would not be drilled in future years. The impact to the drilling industry would be devastating! We estimate that $ 8,053,100,000 would not be spent on drilling activities that were spent in 2001. EPA Response: See response to Comment Summary 6. I E1 023 I E1 070 Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 4 March 2003 Page 4 Comment Summary 16 Stroud [ oil company] plans to drill 22 wells in 2003. Implementing the requirement for operators to obtain NPDES permits for activities disturbing over one acre would require Stroud to obtain coverage under the general permit for every well it drills, as all drilling locations, including access roads, are greater than one acre in disturbance. Estimated additional costs of complying with the NPDES Phase II requirements are as follows: Erosion control measures for drilling operations: $ 5000 per well. Using the above numbers for a 22 well per year drilling program will cost Stroud $ 17,200 per well, for an additional $ 378,400 annually to comply with the Phase II regulations. EPA Response: See response to Comment Summary 6. I E1 044 Comment Summary 17 There would be a dampening of economic activity vital to state and federal coffers. States that have oil and gas production taxes would feel the decline. The State of Texas   which is projecting a $ 10 billion shortage this year without considering this dramatic drop in drilling and production   would have oil and gas severance taxes decline $ 327,308,708 during the first year. EPA Response: See response to Comment Summary 6. I E1 023 I E1 070 Comment Summary 18 During this two year period, I strongly urge EPA to consider the full scope of the exemption in Section 402( 1)( 2) of the Clean Water Act to develop a more appropriate model for oil and gas activities with respect to economic and legal impacts. EPA Response: EPA intends to evaluate the scope of § 402( l)( 2) over the next 2 years. I E1 039 Comment Summary 19 Shallow oil wells in the Northwest region of the Commonwealth are currently being aggregated into the Phase I over five acre permitting process even though the individual well sites do not even reach the one acre Phase II threshold. Wells in this region have gone from having a permitting process which takes from 30 45 days to becoming a paperwork marathon of regulatory hoops and public hearings lasting from as long as 180 days, and in one case over a full calendar year! EPA Response: See the " common plan" section of the preamble to this rule. Pennsylvania is authorized to administer the NPDES program, thus EPA cannot comment on the permitting process employed there, including the Commonwealth's interpretation of common plan of development or sale. I E1 030 Comment Summary 20 We feel the postponement is necessary due to the realization of the overwhelming number of oil & gas drilling sites ( approximately 30,000) that would be affected on a yearly basis by the Phase II rules. The shear number of permits that EPA estimated during the regulatory development process was significantly understated. EPA Response: See response to Comment Summary 3. I E1 030 I E1 035 Comment Summary 22 The Phase II rules would add an additional time consuming layer of regulation to a developer's attempt to get a well in while the rig or other equipment is available. This additional delay would negatively affect an oil and gas developer's business decisions. EPA Response: See response to Comment Summary 6. I E1 061 Comment Summary 25 The economic impact to the oil and gas industry, especially the small operator, must be considered prior to implementation. Stroud Oil Company makes every effort to conduct all its operations in an environmentally sound manner, and feels that additional restrictions will only lead to additional costs without the incremental benefit to the environment. EPA Response: See response to Comment Summary 6. I E1 044 Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 5 March 2003 Page 5 Comment Summary 26 Expanding the NPDES permitting program to include oil and gas operations impacting one to five acres of land  and in some cases even less than one acre  would, at best, significantly impede, and at worst, have a devastating impact on, oil and gas production in the region. Not only would it delay operations for months, but it would significantly increase the costs for operators, especially for the small operators who do not have the necessary regulatory expertise and who will therefore be required to hire outside consultants. That will, without question, have a significant impact on Ohio's oil and gas industry. EPA Response: See responses to Comment Summaries 6, 9 and 11. I E1 042 Comment Summary 27 In 2000, a total of 31,732 exploratory and production wells were drilled   over 10,000 in Texas and Oklahoma. To meet future natural gas demand, the National Petroleum Council estimates that the number of natural gas wells alone needs to increase to approximately 48,000 wells annually. EPA Response: EPA acknowledges the commenters estimation of the number of wells drilled in 2000 and future wells. EPA will evaluate data such as that provided by the commenter when evaluating the impact of the permitting requirements on small oil and gas related construction activities. I E1 026 I E1 030 I E1 048 Comment Summary 28 If the oil and gas industry was subject to the NPDES permitting process, permitting delays would deter and delay the development of domestic oil and natural gas resources. This delay would be a disincentive to energy production at a time when creating such disincentives would appear to be contrary to national energy policy. It is estimated that in the first year U. S. oil production would decline by 1,169,688 barrels per day and natural gas production would drop by 15,773,600 mcf per day. It is estimated that the effect on U. S. drilling will be $ 8 billion annually and $ 90 billion on lost revenue from domestic oil and gas that would not be produced because of the lack of drilling. The United States economy would lose about $ 25 billion in oil production, which would have to be replaced with foreign oil, and $ 65 billion in natural gas production. We projected that the federal government would lose about $ 7,458,754,000 during the first year just from the revenue not generated from the drop in production of oil and natural gas. EPA Response: See responses to Comment Summaries 6 and 9. I E1 023 I E1 026 I E1 030 I E1 038 I E1 039 I E1 042 I E1 048 I E1 051 I E1 061 I E1 066 I E1 068 I E1 069 I E1 070 Comment Summary 29 An issue to address is the realization of the negative impact on oil & gas operations and its impediment of vital domestic energy development and thus negatively impacting our national security. EPA Response: See responses to Comment Summaries 6 and 9. I E1 035 I E1 070 Comment Summary 30 As time passes, oil and gas production would continue its rapid decline at a more rapid pace. Imports would increase, and the citizens of the United States would have less control of our energy and economic future. EPA Response: See responses to Comment Summaries 6 and 9. I E1 023 Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 6 March 2003 Page 6 Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 7 March 2003 Page 7 Comment Summary 31 In New York State the program proposes to extend the ' regulated MS4 status to every MS4 in the State and to require a public hearing provision for every permit over which the MS4 has jurisdiction. This includes all Phase II permits that would be issued by the State Department of Environmental Conservation ( DEC). Thus a General Permit as envisioned by EPA, which normally would not require a costly and dilatory public hearing process, will become a General Permit for which public hearings must be provided. EPA Response: Today's action has no bearing on how an authorized State administers a general permit. I E1 052 Comment Summary 32 Both LMOGA and LIOGA strongly urge the EPA to act quickly on this issue. The Louisiana Department of Environmental Quality ( LDEQ) has EPA primacy for this activity in Louisiana and adopted their permit on October 4, 2003. The LDEQ permit is effective on March 1,2003. The LDEQ has indicated that it is willing to grant a similar compliance extension for oil and gas facilities in Louisiana once a final EPA action is taken. It is therefore imperative for the EPA proposed extension to have a practical effect in Louisiana that a final EPA action be adopted and communicated to the LDEQ well before March 1,2003 to allow the LDEQ to take similar appropriate action. EPA Response: Acknowledged. I E1 036 Comment Summary 33 Independents have had their staffs cut to the bone. There is no fat left to cut. Staff members are doing the jobs of two or three staff members 20 years ago. Independents do not have specialists that know the ` ins and outs' of acquiring a federal permit, especially when they require endangered species and archeological inspections. They will have to hire a consultant. The Alliance estimates that it could take up to six months to obtain a federal drilling permit if we have to get the U. S. Fish and Wildlife Department to conduct their endangered species survey and hire an archeologist to perform his study. The Fish and Wildlife Department is not adequately staffed to handle the increase in permits, and archeologists will not let non archeologists use their libraries. Many smaller companies will find the new procedures too frustrating and time consuming and just not drill many of the wells they had planned. EPA Response: See responses to Comment Summaries 6 and 182. I E1 023 Comment Summary 34 EPA did not address the potential for redundant, and potentially conflicting, regulation. EPA must evaluate current requirements applicable to transmission/ pipelines under other regulatory programs. Some of these requirements are: Pipelines in wetlands or at river crossings must comply with Corps of Engineer nationwide permits, or obtain an individual permit, which do not allow for pollution of water bodies; pipeline activities subject to Federal Energy Regulatory Commission ( FERC) permitting are required to comply with FERC's ' Upland Erosion Control, Revegetation and Maintenance Plan' and ' Wetland and Water body Construction & Mitigation Procedures.' EPA Response: See responses to Comment Summaries 6 and 182. Obtaining coverage under a CWA § 404 permit issued by the Corps of Engineers is sufficient such that a separate NPDES storm water permit is not required ( unless there is also a discharge from at least one acre of non wetland earth not otherwise addressed by the § 404 permit). I E1 067 Comment Summary 36 Coverage of storm water discharges under the Phase II regulations is unnecessary to assure protection of the environment since site preparation activities at oil and gas sites in West Virginia, and we believe in most other states, are already regulated for this purpose. Control of storm water discharges from oil and gas drilling sites in West Virginia is currently covered by a permit required prior to beginning preparation of a site and is issued by the West Virginia Office of Oil and Gas ( OOG). See W. Va. Code § 22 6 6( a)( quoted above). This process has been effective in the past to assure protection of the environment in a manner that does not unduly burden the business of oil and gas development. ...[ EPA] will find that the appropriate controls necessary to address storm water discharges from oil and gas sites undergoing construction activity in West Virginia are already covered by the permit issued by the OOG. Before a permit is issued allowing a well to be drilled, an Erosion and Sediment Control Plan which meets the requirements of the W. Va. Erosion and Sediment Control Field Manual prepared by the OOG must be submitted to and approved by the OOG. See W. Va. Code § 22 6 6( d). Further, the BMPs identified by the W. Va. Erosion and Sediment Control Field Manual, in contrast to those that may be used in the general construction industry, are specific to oil and gas operations. EPA Response: See responses to Comment Summaries 6 and 182. I E1 061 Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 8 March 2003 Page 8 Comment Summary 39 The earth disturbance features of these projects are already adequately regulated by State agencies where they occur. Unlike the construction industry, which may not be regulated at the State level, all facets of the oil and gas industry are already abundantly regulated by state & federal agencies. To impose another layer of regulation by enacting Phase I and Phase II of the NPDES on activities such as described is not only unnecessary but counter productive to the oil and gas industry and those it serves. EPA Response: See responses to Comment Summaries 6 and 182. I E1 046 I E1 052 Comment Summary 42 Oversight and protections are already in place due to the fact that each and every oil and gas well site in New York is inspected by our staff prior to the issuance of a well drilling permit. Staff review the conditions present at the site, assess erosion and sedimentation control issues and impose special permit conditions which may require the use of best management practices to address site specific concerns. All well sites must be reclaimed using seed and mulch, and in some cases, the planting of trees and shrubs may be required. EPA Response: See responses to Comment Summaries 6, 31 and 182. I E1 060 Comment Summary 43 Drilling and Workover Permits required by the various states also require the use of BMPs for erosion and sediment controls. The proposed requirement to obtain a Storm water Permit for Oil and Gas Construction Activities is only a duplication of permitting and doubling of the permitting fees and permit approval periods. CNR will incur excessive costs due to the additional permit fees imposed by the States and an undetermined cost of waiting for additional State approvals ( 15 to 60 days) of the Storm water Permits. These additional permit fees ( averaging $ 300 for each one to three acre project) are expected to exceed $ 150,000 per year for CNR alone. CNR firmly believes that the additional, duplicative Storm water Permitting for Oil and Gas Construction Activities is unnecessary, not beneficial to the environment and will cost CNR precious resources that it could have used to benefit the Company and the environment. EPA Response: See responses to Comment Summaries 6 and 182. I E1 059 Comment Summary 44 In California alone, there are thousands of small natural gas transportation and distribution construction projects annually. Many of these projects occur in paved areas, with a short construction duration and reduced exposure to disturbed soil and therefore present extremely low potential for adverse impacts to surface waters from their storm water runoff. The Best Management Practices already in use and appropriate for these construction projects effectively protect surface waters. The extension proposed would provide time for EPA to review these practices. EPA Response: See responses to Comment Summaries 6 and 182. I E1 057 Comment Summary 45 There are reclamation standards in Ohio enforced by the Department of Natural Resources, Division of Mineral Resources Management, designed to quickly re seed and re sod impacted areas to prevent erosion and runoff affects. Accordingly, the Association believes that the need to expand the NPDES permitting program to include oil and gas operations, including any claimed, additional benefits that such a program would offer to the environment, must be reviewed and weighed against the costs as required under federal law. EPA Response: See responses to Comment Summaries 6 and 182. I E1 042 Comment Summary 46 When calculating the economic impact of proposed federal programs, we do not believe EPA has taken into account how these programs will fit into delegated State programs and the costs thereby entailed. In Pennsylvania, for instance, what EPA envisioned as a low economic impact Storm Water Management General Permit, became, during Phase I, a required individual Permit on many of the Commonwealth's watersheds. Acquiring these Individual Permits has been very time consuming and expensive due to the public hearing and appeal process attached to the Individual Permit Application process. PGE can offer documentation that these permit applications often take up to eight ( 8) months to get approval often for a few wells which individually will involve 1/ 3rd to ½ acre disturbance with 20 or more acres of undisturbed area between them. EPA Response: See response to Comment Summary 6. Authorized States implement the NPDES program as they see fit. There is no Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 9 March 2003 Page 9 Federal mandate to use individual permits. They are usually employed when the Permitting Authority believes a general permit is not protective enough of water quality. I E1 052 Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 10 March 2003 Page 10 Comment Summary 47 We request that EPA clarify in its final rule that ' transmission,' for purposes of the permit deadline delay, includes interstate and intrastate ' pipelines' that transport oil and gas. We seek clarification that construction activities on all transmission ( i. e., pipeline) activities are included in the two year delay and be a part of EPA's evaluation for Phase II implementation. This interpretation would be consistent with the Department of Transportation's use of the term ' transmission facilities' within their jurisdiction, as evidenced in 49 C. F. R. § § 192 and 195. The remote, disperse and sporadic nature of small pipeline construction projects is similar to oil and gas activities clearly covered under the delay rule. Our discussions with the EPA staff indicate that ' pipeline' construction would be included in the postponement. The language utilized by EPA in the Federal Register notice is somewhat unclear on the extent of ' transmission' operations. EPA Response: EPA agrees with the commenters assertion that the term " transmission" as used in the rule should include interstate and intrastate pipelines that transport oil and gas. The Agency acknowledges that while it is not codifying definitions of certain applicable terms codified by the U. S. Department of Transportation ( DOT), EPA does believe that its interpretation of the term " transmission" or " transmission pipelines" is consistent with those of DOT. I E1 022 I E1 027 I E1 037 I E1 040 I E1 041 I E1 043 I E1 047 I E1 057 I E1 062 I E1 064 Comment Summary 48 We believe that the provision of the Clean Water Act adopted in 1987   Section 402( l)( 2)   excludes uncontaminated stormwater from oil and natural gas exploration and production facilities from the NPDES permitting process. And, since the municipal and industrial storm water discharges subsection   Section 402( p)   is directed toward permitting of storm water discharges, it does not override this exclusion. During the two year assessment period this question needs to be fully reexamined. EPA Response: See response to Comment Summary 18. I E1 026 I E1 030 Comment Summary 49 We request that EPA clarify the language that EPA has proposed for Section 122.26( e)( 8) to make clear that persons constructing oil and gas facilities are not required to apply for a storm water permit until March 10, 2005. Without this clarifying change, the extension that the proposed rule provides will have little if any impact and the oil and gas industry will be required to comply with general permit requirements and file thousands of NOIs and SWPPPs unnecessarily. EPA Response: EPA believes the regulatory language as proposed is sufficiently clear. Operators of small construction projects described in the new § 122.26( e)( 8) will not need permit authorization until March 10, 2005. I E1 057 Comment Summary 51 Under the Supplementary Information in the proposal, examples of regulated entities include ' construction site operators associated with oil and gas construction projects.' Questar believes that this statement logically covers natural gas distribution activities, but the proposed regulatory language excludes only ' small construction activity as oil and gas exploration, production, processing and treatment operations or transmission facilities' as part of the postponement. If the omission of natural gas distribution sites was an oversight, Questar urges the Agency to include them in the final document. EPA Response: EPA disagrees with the commenters assertion that natural gas distribution sites should be included in the two year postponement. The preamble distinguishes between transmission facilities ( that are included in the postponement) and distribution facilities ( that are not included). I E1 049 Comment Summary 52 Prior to publication of notice of the proposed Fact Sheet and CGP and the proposed deferral, EPA had not, in any rule or guidance published in the Federal Register, clearly articulated its interpretation that construction activities at oil and gas operations are not exempt under section 402( 1)( 2) of the CWA. It had, however, stated this interpretation in an internal memorandum in 1992 as well as in a letter to an oil and gas industry group in 2001. EPA Response: Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 11 March 2003 Page 11 See response to Comment Summary 18. I E1 028 Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 12 March 2003 Page 12 Comment Summary 53 EPA should note that it does not need to resolve the statutory interpretation question in order to clarify the scope of its proposed two year deadline extension. These are two separate questions: ( 1) what does EPA intend to include in the two year Phase II storm water permit postponement; and ( 2) what does EPA believe Congress intended to exempt from storm water regulation? The agency should clarify now that natural gas distribution projects qualify for the two year postponement, so that it will have the time to evaluate the second question  whether such projects should be exempt. EPA can take action on the first question to postpone the deadline for distribution based on sound policy grounds and on the ground that application of the existing Phase II rule to natural gas distribution projects is not supported by the existing rulemaking record. It can take additional time to resolve the second question. EPA Response: See responses from Comment Summaries 18 and 51. I E1 043 Comment Summary 54 As the transmission segment of the oil and gas industry implements DOT required Pipeline Integrity Management and the requirements of the new Pipeline Safety Act, pipeline associated disturbances are likely to increase. EPA must consider these additional potential sites during its evaluation of impacts of Phase II rules. EPA Response: During its analyses, EPA will look at impacts to all entities affected by the rule. I E1 067 Comment Summary 55 We also request EPA to clarify, in the final rule, that maintenance to existing facilities are currently considered integral to industrial activities and are therefore not construction activities. As industrial activities associated with the oil and gas industry, they are excluded from the NPDES Storm Water permitting requirements, per 33 U. S. C. § 1342( l)( 2). EPA Response: See response to Comment Summary 18. I E1 062 Comment Summary 56 Kinder Morgan requests clarification regarding whether or not EPA considered a different standard for revegetation or for closure in arid or semi arid environments. The practicality of maintaining compliance in semi arid and arid environments until 70% revegetation ( for complete stabilization) is a serious issue. In these regions, revegetation cannot occur without either natural precipitation or supplemental watering. It frequently is not practical to water even small disturbances because of remote locations or water supply limitations. For example, water may not be locally available and trucking in water is expensive and can cause additional damage, including damage to existing vegetation. With limited rainfall, the reestablishment of vegetation is difficult to achieve. EPA Response: This comment relates to the proposed Construction General Permit not the proposed oil and gas extension rule, and will be addressed in the responses to the proposed Construction General Permit comments. I E1 067 Comment Summary 57 Examples of terms that should be consistent in both the CGP and the Fact Sheet are:° Common plan of development ( site over ¼ mile apart considered as separate projects)   page 6° Final stabilization ( semi permanent erosion control practices combined with seeds is final stabilization)   page 46° Construction ( not including earth disturbing activities that are part of day to day operation)   page 42° Post construction use ( earth disturbance for maintenance and day to day operations does not require a CGP)   page 46 EPA Response: This comment relates to the proposed Construction General Permit not the proposed oil and gas extension rule, and will be addressed in the responses to the proposed Construction General Permit comments. I E1 047 Comment Summary 58 For activities that do not meet EPA's narrow definition of ' non contiguous' ( i. e., are less than one quarter mile apart) it is not clear whether an oil and gas operator is supposed to total all of the ' land disturbed', regardless of whether its disturbed ' at the same time', or whether the operator is required total all of the land that will be disturbed over the entire ' common plan' at any time. EPA Response: See the " common plan" section of the preamble to this rule. I E1 028 Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 13 March 2003 Page 13 Comment Summary 59 The potential for delay, loss of leases, and loss of reserves created by leasing problems caused by the definition of ' operator' under the permit have not been considered. EPA should clarify that surface owners, mineral owners, royalty owners, working interest owners, oil and gas lessees, and JOA non operators are not ' operators' for the purposes of the CGP. Generally, if permit coverage is required at all, it will by required only of the lease or JOA operator or the drilling contractor ( sometimes hired on a ' turnkey' basis), or some combination of these two entities depending on the specifics of the contractual relationship between them. If EPA fails to clarify the ' operator' role for oil and gas operations in a reasonable way, leasing activities already difficult will be further complicated by misunderstandings and disputes over who may or may not be responsible for CGP compliance. EPA Response: EPA will continue to use the definition of operator from the previous Construction General Permit of 2/ 17/ 98 for the time being. See 63 Federal Register, p. 7859. EPA may revisit this issue when it issues the new CGP. I E1 028 Comment Summary 60 Among the issues that must be considered with respect to oil and gas activities are: 1) Does EPA have the legal authority under section 402( 1) to exclude clearing, grading and excavating at oil and gas activities from the scope of the oil and gas exemption or to limit the scope of the exemption for clearing, grading, and excavating activities? 2) If EPA has the authority to limit the scope of the exemption under section 402( 1)( 2), is an acreage threshold on ' land disturbed' the appropriate limitation to place on the scope of the oil and gas exemption? 3) If limitations other than acreage threshold( s)) are to be imposed on the scope of the oil and gas exemption, how will those criteria be established and what are the legal and scientific justifications for them? 4) If an acreage threshold based on ' land disturbed' or ' area under construction at the same time' is to be imposed, what is the appropriate size of the threshold ( s) for various oil and gas activities and/ or locations and what is the scientific basis for these threshold( s))? 5) When does ' land disturbance' or ' area under construction at the same time' begin and end? 6) What clearing, grading and excavating activities at oil and gas sites should be included or excluded from the acreage threshold? 7) If an acreage threshold is to b measured against ' common plan', how is that term to be defined for non contiguous oil and gas activities? 8) If an acreage threshold is to be measured against a ' common plan', how is that term to be defined for contingent future oil and gas activities? 9) What are the economic impacts of the limitations, if any, to be placed on the scope of the section 402( 1)( 2) exemption for oil and gas exploration, production, processing, and treatment operations and transmission facilities. EPA Response: See responses to Comment Summaries 6 and 18 and the " common plan" section of the preamble to the Phase II Rule. I E1 028 Comment Summary 61 We would suggest that EPA codify the proposed deferral by ( 1) revising the definition of ' storm water discharge associated with small construction activity' in 40 CFR 122.26( b)( 15), and ( 2) revising the permit approval deadline in 40 CFR 122.26( e)( 8) as follows: Section 40 CFR 122.26( b)( 15): ( i) except as provided in subparagraph ( ii), construction activities including clearing, grading, and excavating that result in land disturbance of equal to or greater than one acre and less that five acres. ***. ( A) *** ( B)*** ( ii) In the case of construction activities conducted as oil and gas exploration, production, processing, and treatment operations or transmission facilities, storm water discharge associated with small construction activities shall only include those activities, as defined in subparagraph ( i), that occur after March 10, 2005. ( iii) Any other construction activity designated by the Director ***. Section 40 CFR 122.26( e)( 8): ( e) application deadlines.*** ( 8) For any storm water discharge associated with small construction activity identified in paragraph ( b)( 15)( i) of this section, see 122.2 ( c)( 1). Discharges from these sources, other than discharges associated with small construction activity at oil and gas exploration, production, processing, and treatment operations or transmission facilities, require permit authorization by March 10,2003, unless designated for coverage before then. EPA Response: EPA will consider changes to other subsections of 40 CFR 122.26 during the extension provided by this rule. This rule, as finalized, meets EPA's goals for the time being. I E1 057 Comment Summary 62 Clarifying that dispersed projects that could have been interpreted as " common plan of development" should be considered separate projects would allow projects with low water quality impact concerns to be treated in a less burdensome fashion. EPA Response: Refer to the " common plan" section of the preamble to the Phase II Rule. I E1 047 Comment Summary 63 In addition, clarifying that industrial earth disturbance activities ( e. g., maintenance, site remediation, and demolition) that are not connected with the construction of a structure do not need a CGP will reduce unintended burden to projects that cause minimal erosion/ sediment concern. EPA Response: See response to Comment Summary 18. I E1 047 Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 14 March 2003 Page 14 Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 15 March 2003 Page 15 Comment Summary 64 EPA should also clarify in the permit that replacement of existing structures with the same structure is considered a maintenance activity if no new land is disturbed ( e. g., replacement of a six inch pipeline with a similar pipeline in the original construction right of way) EPA Response: This action does not otherwise extend or reduce the scope of activities requiring NPDES permit coverage. EPA may clarify this issue when it finalizes the CGP. I E1 047 Comment Summary 65 There is no scientific reason to exempt the oil and gas industry from permitting requirements for discharge of sediment to the nation's waterways. The oil and gas industry should be held to the same standard as all other industries and live with the statutory requirements that the rest of the construction industry will be living with. EPA Response: EPA agrees that sediment from all sources is a concern but believes that the oil and gas industry has raised significant questions about the differences between the nature of construction at oil and gas sites and other types of construction. One such difference is the very short time window in which construction at oil and gas sites usually occurs. Most of the studies that EPA relied on to show the need for regulating small construction activity looked at residential or commercial construction. It is important for EPA to determine whether construction at oil and gas sites is sufficiently different from these other types of construction to warrant different regulatory treatment. I E1 001 I E1 002 I E1 003 I E1 005 I E1 006 I E1 007 I E1 008 I E1 009 I E1 011 I E1 012 I E1 014 I E1 015 I E1 018 I E1 019 I E1 020 I E1 021 I E1 025 I E1 045 I E1 054 I E1 055 I E1 056 Comment Summary 67 EPA should not be proposing this rule, as it is clearly contrary to your duty to protect the quality of the nation's waters. EPA Response: See response to Comment Summary 65. I E1 010 I E1 015 Comment Summary 68 EPA does not assert that storm water discharges from oil and gas construction are any less polluted than discharges from other construction activities. Nor does EPA assert that oil and gas operations have any better controls in place for storm water pollution than other construction activities. EPA Response: EPA will evaluate this class of discharges during the extension granted by this rule. I E1 053 Comment Summary 69 The proposed definition of ' land disturbance' or ' under construction' does not define when ' disturbance' or ' construction' ends, and seems to assume that this will be when ' final stabilization' has occurred. Oil and gas sites are not ' finally stabilized', as EPA defines that term, and the possible requirement that ' disturbance' or ' construction' does not end until ' final stabilization' occurs therefore fails to encompass normal prudent operating practices accepted in industry. EPA Response: Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 16 March 2003 Page 16 This comment relates to the proposed Construction General Permit not the proposed oil and gas extension rule, and will be addressed in the responses to the proposed Construction General Permit comments. I E1 028 Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 17 March 2003 Page 17 Comment Summary 70 Indeed the oil and gas industry is subject to the following regulatory programs regardless of the applicability of the NPDES storm water program: * Construction of pipelines in wetlands or at river crossings must comply with Corps of Engineer nationwide permits, or obtain an individual permit, which protect waterbodies from pollution; and * For those pipeline activities subject to FERC permitting, FERC requires compliance with its ' Upland Erosion Control, Revegetation and Maintenance Plan' and ' Wetland and Waterbody Construction & Mitigation Procedures. ATINGP urges the EPA during this two year period of review to evaluate these and any other regulatory programs applicable to transmission and pipeline activities in order to avoid redundant regulation. EPA Response: See response to Comment Summary 6. I E1 062 Comment Summary 71 EPA has stated in the Proposed Rule that it had assumed earlier in the Phase II development process that few, if any, oil and gas sites would be affected by the Phase II rules. According to the West Virginia Department of Environmental Protection's Annual Report for FY 2001 2002, the annual average of new oil and gas wells that have been drilled in West Virginia during the past three years is 885. IOGA WV believes that most, if not all, of the new drilling sites in West Virginia will exceed the threshold level of one acre, especially once the area used to construct an access road is considered. As a result, the Phase II regulations will impact a significant number of oil and gas sites in this state. EPA Response: See response to Comment Summary 6. I E1 061 Comment Summary 72 It has been ABARTA's experience that the Best Management Practices demanded by Pennsylvania's Erosion and Sedimentation Control requirements meet or exceed current Federal regulations. EPA Response: Authorized State NPDES programs can be more stringent than EPA's. See responses to Comment Summaries 6, 31 and 182. I E1 034 Comment Summary 73 Under the terms of the Clean Water Act, any ' contaminated' runoff from an otherwise exempted oil and gas site is not exempt from NPDES permitting requirements. EPA continues to retain the ability to address such storm water discharges through permitting or other requirements. EPA Response: See response to Comment Summary 18. I E1 061 Comment Summary 74 EPA proposes to begin gathering information to justify the proposed exemption for oil and gas construction now, but the March 2003 compliance deadline is one about which the oil and gas industry and EPA have known since at least Dec 8, 1999, when the phase II regulations were finalized. The oil and gas industry has already had three years in which to supply information to EPA showing its construction activities were less polluting than other construction activities of between 1 and 5 acres. For whatever reason, it has failed to do so. EPA Response: EPA disagrees with the commenters premise that the oil and gas industry is obtaining a two year extension because its construction activity is less polluting than other construction activities. The industry has provided information over the course of the last year indicating that close to 30,000 oil and gas sites will be affected by the Phase II storm water rule, a number that far exceeds EPA's rulemaking estimate that " few, if any such sites actually disturb more than one acre of land." Economic Analysis of the Final Phase II Storm Water Rule, footnote # 2 on p. 4 2, October 1999, EPA 833 R 99 002. EPA is providing a two year extension to evaluate data on the development and use of appropriate best management practices for the industry as well as to evaluate the impact of its actions on energy related production activities. I E1 053 Comment Summary 76 The idea that the oil and gas exemption is broader and less stringent than the mining exemption has been upheld by the courts in Natural Resources Defense Council v. U. S. EPA. In NRDC, plaintiffs objected to the distinction between the mining industry and the oil and gas industry in EPA's regulations, and alleged that the oil and gas industry should be held to the same stricter standard as the mining industry. The court found, however, ' no support in the statute or legislative history for NRDC's claim that, with respect to   substances' discharged from oil and gas operations, ' levels above background must be considered contamination.' 966 F. 2d 1296 ( 9th Cir. 1992). EPA Response: See response to Comment Summary 18. Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 18 March 2003 Page 18 I E1 028 Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 19 March 2003 Page 19 Comment Summary 77 See response to Comment Summary 6. If EPA creates a storm water program and a CGP for the oil and gas industry in spite of the CWA exemption, Marathon urges EPA to tailor the program and the CGP to the unique nature of the industry. Specifically, the program and the CGP should include a workable definition of " common plan", and should not require the NOI and NOT, and the review of endangered species and historic sites preservation as outlined in the proposed CGP. EPA Response: EPA plans to evaluate the industry to determine its " uniqueness" with respect to storm water control and require controls as appropriate based on that evaluation. EPA's definition of " common plan" is discussed in the preamble to this rule. EPA has received anecdotal information indicating that its current approach for the review of endangered species and historic site preservation has negative economic impacts on the oil and gas sector and plans to work with the appropriate organizations to evaluate possible alternative approaches. I E1 027 Comment Summary 78 Special additional regulations need to be attached to oil and gas construction activities in order to minimize the amount of stream degradation presently being allowed to happen by this industry. EPA Response: EPA has not evaluated data that is consistent with the commenter's implication that oil and gas construction activities degrade streams more so than other types of construction activities. Among other things, EPA plans to spend the next two years evaluating the impacts of the oil and gas construction activities on the environment and possible BMPs to address such impacts. I E1 016 I E1 017 Comment Summary 79 EPA cannot study the full scope of the exemption without looking at all oil and gas activities, including the construction activities that are an inherent part of oil and gas operations and regardless of acreage to be disturbed by such activities. EPA Response: EPA plans to evaluate the applicability of the exemption at 33 U. S. C. 1342( l)( 2) to construction activity at oil and gas exploration, production, processing, or treatment operations or transmission facilities for all site sizes. I E1 039 Comment Summary 80 EPA should conduct a thorough reassessment of its storm water construction permitting for oil and natural gas exploration and production facilities. EPA's proposed suspension of the Phase II storm water construction regulation as it applies to oil and gas exploration and production facilities initiates an opportunity to consider alternative approaches that would be consistent with the environmental impacts of construction of these facilities while minimizing the regulatory burden. This provides an opportunity to review Best Management Practices within the industry, and as required by many states. EPA Response: See response to Comment Summary 4. EPA is planning to consider alternative regulatory approaches that would still achieve environmental benefit. I E1 026 I E1 030 Comment Summary 81 There is no reason to postpone permitting for 2 years when most contractors involved have experience with sites over 5 acres and therefore should already have a storm water management plan in hand that could be routinely implemented. If there really was a desire by EPA to ' better evaluate... the appropriate BMPs for preventing contamination...' the rule would be not be postponed, but rather would be imposed as interim minimum with increased requirements forthcoming. EPA Response: See response to Comment 65. EPA disagrees with the commenters approach suggesting that EPA evaluate small oil and gas regulatory requirements while still applying the regulatory requirements. The commenter argues that interim measures could be put in effect with additional measures added based on the results of subsequent EPA review. The oil and gas industry asserts that the existing " minimum" requirements would in fact have a significant economic impact on the industry and believe something less than the current regulatory approach is appropriate. To perform that analysis, EPA believes postponement of the existing requirements for the oil and gas industry is appropriate. I E1 045 Comment Summary 82 We believe that not only should a delay in implementation occur, but that the oil and gas  exemption  included in the original legislation supporting the Phase II regulations should be recognized by EPA. The proposed delay would then become a permanent exemption. EPA Response: See response to Comment Summary 18. Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 20 March 2003 Page 20 I E1 052 Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 21 March 2003 Page 21 Comment Summary 83 The concept of ' common plan of development or sale', as outlined in the proposed CGP, is vague and does not lend itself to a workable purpose so far as the oil and gas industry is concerned. In principle, the idea seems to be to prevent a large project from being segmented in such a way to avoid permitting. It may be a valid concept for a subdivision or large shopping center that is being built over a longer period of time but is clearly designed to cover an area larger than its initial phase. The oil and gas exploration and development plans are created with a different approach. When an oil and gas producer begins to develop a ' field', it is unknown as to when, where and how many wells are to be eventually drilled. Development of an oil and gas field cannot be planned in advance. Oil and gas development is not an easily predictable process. The oil and gas operator does not know with certainty the extent of development he will undertake in a particular area. The common plan of development or sale concept, if it is to be applied to oil and gas operations, should only apply to that number of wells, all under development at the same time, for which final stabilization has not been achieved. EPA Response: EPA acknowledged this broader issue of what constitutes a " common plan" in the " Frequently Asked Questions" section of the proposed fact sheet for the proposed CGP. EPA stated that " If you have a long range master plan of development where some portions of the master plan are a conceptual rather than a specific plan of future development and the future construction activities would, if they occur at all, happen over an extended time period, you may consider the ` conceptional' phases of development to be separate ` common plans' provided the ` conceptual phase' has not been funded and periods of construction for the physically interconnected phases will not overlap." Fact Sheet for the Issuance of a NPDES Permit. ( This proposed fact sheet is available in the official public docket referenced in the Notice of Availability for Comment for the proposed CGP at 67 FR 78116 ( Dec. 20, 2002).) The proposed fact sheet goes on to describe a possible example in the context of the oil and gas industry. EPA plans to further clarify this issue when it takes final action on the proposed CGP. I E1 027 I E1 051 I E1 052 Comment Summary 84 While ' future contingent' activities can be excluded from a ' common plan', the definition of ' future contingency' is based on an ambiguous reference to ' funded' activities. This reference would appear [ to] require most future activities to be included in the ' common plan', thereby excluding most development and in fill drilling programs from coverage under a ' common plan'. EPA Response: See response to Comment Summary 83. I E1 028 Comment Summary 85 In the proposed Fact Sheet accompanying the proposed CGP, EPA attempts to explain the phrase " common plan" using the oil and gas industry as an example. EPA's explanation poses numerous problems for the oil and gas industry. For example, in determining whether two non contiguous construction activities are considered a part of a common plan of development, EPA introduced a 1/ 4 mile distance criteria. Two well pads which are at least 1/ 4 mile apart are to be considered two separate construction activities if any interconnecting road, pipeline or utility is not under construction at the same time. First, many wells are developed on tracks of 20 to 160 acres ( or 1/ 32 sq. mi. to 1/ 4 sq. mi.). When multiple wells are drilled to the same reservoir, they are usually drilled less than 1/ 4 miles from each other. Second, interconnecting access roads and pipelines are often built along with well pads. If " under construction at the same time" means " not finally stabilized" as defined in the proposed CGP, this limitation would be a significant problem. Due to the distance and " interconnecting" limitations, many non contiguous oil and gas construction activities would have to be considered as under a common plan of development, triggering the permit requirement. EPA Response: See response to Comment Summary 83. I E1 027 I E1 028 Comment Summary 86 The issue of the treatment of " common plan of development" as it applies to E& P facilities must be considered in the context of the postponed application of the CGP to oil and gas facilities. Crafted as the rest of the CGP was   for subdivision and shopping center like facilities   its application to oil and gas facilities creates enormous uncertainty. EPA's deferral should include sites that are regulated under Phase I that are part of common plan of development that disturbs greater than five acres. EPA Response: See response to Comment Summary 83. I E1 026 I E1 030 I E1 048 Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 22 March 2003 Page 22 Comment Summary 87 If sites of five and greater acres or sites that are part of a common plan of development that disturbs five acres were not included in the postponement, the postponement would become a false promise. While reassessments of the application of the permit process to oil and gas facilities were being undertaken, some, if not all, EPA regions could be applying the convoluted common plan of development analysis to the same operations that were not being regulated due to the postponement and thereby regulating them. EPA Response: See response to Comment Summary 83. I E1 026 I E1 030 Comment Summary 88 The construction area measurement methodology utilized to determine if a storm water discharge permit is required is severely flawed. Using the current measurement method, multiple one half acre wellsites located several thousand feet apart are considered a single project if they are connected by a road or pipeline. In reality, each well in an oil and gas field is a separate project, widely separated from other wells. The total disturbed area in an oil and gas field may be only 2 3% of the field area, with large undisturbed areas between each well. Access roads between wells are frequently stabilized immediately with application of stone. Pipelines are normally reclaimed, mulched and seeded within a few days or weeks of initial surface disturbance. Because of their long, ribbon like nature, well access roads and pipelines, even though they may exceed total area thresholds, do not pose the same storm water run off threat as a consolidated project of similar total area. EPA Response: See response to Comment Summary 83. I E1 051 Comment Summary 89 If additional regulation is warranted, EPA must use models and definitions that are appropriate and specific to activities associated with oil and gas operations. In defining various terms and developing the various requirements, EPA has used a model based on residential and commercial construction projects, which does not account for factors that control location, spacing, planning and timing of oil and gas exploration and production EPA Response: EPA appreciates this comment and will consider it when contemplating next steps during the two year extension. This comment is not inconsistent with today's action. I E1 039 Comment Summary 90 Because the Agency believed that oil and gas facilities were not affected by Phase I or II, the Phase I and II regulations and proposed CGP are structured to address construction of building facilities   houses and commercial buildings not well sites and facilities. There is a lack of understanding of the differences between everyday oil and gas industry activities and typical residential and commercia1activities. EPA Response: EPA appreciates this comment and will consider it when contemplating next steps during the two year extension. I E1 026 I E1 030 I E1 035 I E1 048 Comment Summary 91 Unlike construction activity for housing developments or commercial ventures, land ownership and management does not change hands in the process of the exploring for oil and gas. Oil and gas production operations involve the leasing of surface rights, construction occurs within a matter of weeks, and timing is critical because it involves obtaining a drilling rig that must be carefully scheduled and is paid for based on the number of days it is in use. Disruption in this process can place entire projects and substantial capital at risk. These consequences are at issue in the Phase II regulations. EPA Response: See response to Comment Summary 6. I E1 022 I E1 026 I E1 027 I E1 030 I E1 048 I E1 050 I E1 051 Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 23 March 2003 Page 23 Comment Summary 92 EPA's scientific model is based wholly on conventional residential and commercial construction and development projects. This model does not support a need to impose a permit requirement or additional controls on oil and gas grading, clearing, and excavating activities beyond those already used at oil and gas sites. These activities are different from conventional construction activities, with minimal environmental impacts, in that the scope and extent of oil and gas activities are non contiguous, contingent on geological and market factors, often located in remote places, and characterized as a matter of technical necessity and industry practice by temporary, non permeable, low impact development practices. EPA Response: EPA appreciates this comment and will consider it when contemplating next steps during the two year extension. This comment is not inconsistent with today's action. I E1 028 Comment Summary 93 The reduced impact of small construction sites should be accompanied by reduced burden on the permittee.° Sites that begin and end construction ( i. e., temporary stabilization) within a 30 day period should be exempt from all requirements of the CGP.° Submittal of a NOI for small sites is burdensome and unnecessary and should be covered by Permit by Rule. EPA acknowledged that NOIs might not be appropriate for small sites in the Phase II rule ( 64 FR 68777, December 8, 1999).° Inspection of BMP should be at a decreased frequency for small sites ( i. e., every two weeks during active construction activities and every two months after temporary stabilization). EPA Response: EPA appreciates this comment and will consider it when contemplating next steps during the two year extension. This comment is not inconsistent with today's action. See response to Comment Summary 6. I E1 047 Comment Summary 94 Natural gas pipeline and local gas utility projects have only minimal, temporary impacts on storm water discharges. Natural gas pipelines and distribution lines can extend over many miles. However, these projects are typically of short duration. They also have limited impacts because only small portions of trench are open at any one time. The projects are narrow, linear, and are typically less than 25 feet wide. Gas service line projects are as narrow as 18 inches, and natural gas utilities follow best management practices ( BMPs) to minimize sedimentation and erosion. Many of the projects are constructed in urban areas in existing streets, curbs and sidewalks. This limits the soil disturbance areas to the trench and excavations and any on site soil stockpiles, as the paved and cemented areas being worked on do not erode. In many cases, the soil removed from trenches and excavations is not stockpiled on site, but removed from the construction site either immediately or within a day. Most importantly, unlike most commercial development projects, natural gas pipeline and utility line projects do not cause any long term changes in storm water runoff because these projects cause only minimal ( if any) change to original grade or contours, and they do not change the amount of impervious surfaces. AGA believes that many of the provisions proposed in the Phase II storm water regulations do not consider the unique characteristics of linear gas utility construction projects. EPA Response: EPA appreciates this comment and will consider it when contemplating next steps during the two year extension. This comment is not inconsistent with today's action. I E1 043 Comment Summary 95 GPA also supports removing the requirement to submit a NOI for construction sites 48 hours prior to start of construction  the requirement to submit NOIs by March 10, 2003 does not allow industry sufficient time to gather data, complete ESA reviews, complete Historic Preservation reviews, and ensure that all appropriate personnel are trained and familiar with the new conditions in the Phase II permit. EPA Response: EPA appreciates this comment and will consider it when contemplating next steps during the two year extension. This comment is not inconsistent with today's action. I E1 047 Comment Summary 96 Many requirements in the proposed CGP, such as completion and submittal of the NOI and NOT, reviews of endangered species and historic sites preservation, will cause significant delay in an oil and gas project. The project schedule may allow time for a cursory review of endangered species habitats and historic sites preservation to ensure compliance with the respective Federal laws; however, the delay resulting from the detailed review and documentation as prescribed in the proposed CGP and its addenda will jeopardize the success of the project. EPA Response: EPA appreciates this comment and will consider it when contemplating next steps during the two year extension. This comment is not inconsistent with today's action. I E1 027 Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 24 March 2003 Page 24 Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 25 March 2003 Page 25 Comment Summary 97 EPA's construction storm water program and the CGP track the same process, requiring a Notice of Intent ( NOI) and a Notice of Termination ( NOT). The planning phase of such a project takes many months even years, allowing time for detailed planning and review for such items as endangered species and historic sites preservation. An oil and gas construction project, on the other hand, is typically on a very tight schedule and moves very quickly from planning to construction because both the access to mineral rights and the availability of drilling rigs are on schedules. Failure to meet the schedule often results in the loss of opportunity to drill which could lead to forfeiting hundreds of thousands of dollars invested in the project. EPA Response: EPA appreciates this comment and will consider it when contemplating next steps during the two year extension. This comment is not inconsistent with today's action. I E1 027 Comment Summary 98 There would be no benefit to the environment as a result of the implementation of the NPDES permit requirements because the construction standards and procedures currently in effect would not change. EPA Response: EPA appreciates this comment and will consider it when contemplating next steps during the two year extension. This comment is not inconsistent with today's action. I E1 068 Comment Summary 99 It has already been identified, in past rule makings and pursuant to section 1342( p)( 6) of the Clean Water Act, that small construction activities ( those that disturb 1 5 acres) significantly contribute to water quality degradation. As such, the CWA dictates that EPA must ' establish expeditious deadlines' for implementing a regulatory program for these discharges. EPA Response: See response for Comment Summary 65. At this time, EPA believes that two years is a reasonable amount of time to evaluate impacts by the activities covered by 40 CFR 122.26( e)( 8), the impact of regulation on those activities, and the scope of CWA § 402( l)( 2). I E1 002 I E1 005 I E1 006 I E1 007 I E1 009 I E1 010 I E1 012 I E1 013 I E1 014 I E1 015 I E1 018 I E1 019 I E1 020 I E1 021 I E1 025 I E1 037 Comment Summary 100 EPA should not even be proposing this rule, as it is clearly contrary to your duty to protect the Nation's water quality. EPA Response: See response for Comment Summary 65. I E1 002 I E1 003 I E1 005 I E1 006 I E1 007 I E1 008 I E1 009 I E1 012 I E1 014 I E1 018 I E1 019 I E1 020 I E1 021 I E1 025 Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 26 March 2003 Page 26 Comment Response for Storm Water Phase II Extension for Oil and Gas Related Construction Activity  Numerically 27 March 2003 Page 27 Comment Summary 101 Due to the extremely disruptive nature of oil and gas development and the track record of these developers to control accelerated erosion and sediment pollution, a special exemption from the NPDES Permit Requirements should not be enacted. EPA Response: See response for Comment Summary 65. I E1 016 I E1 017 I E1 025 Comment Summary 102 During this two year period, I strongly urge EPA to consider the full scope of the exemption in Section 402( 1)( 2) of the Clean Water Act: to study the best management practices commonly used by the oil and gas industry to minimize impacts from oil and gas sites; to develop a more appropriate model for oil and gas activities, as well as water quality impacts. EPA Response: EPA concurs with this comment, and fully intends to spend the next two years fully exploring all facets of this issue. I E1 039 Comment Summary 103 The Environmental Protection Agency was founded to protect the environment. At one time it did. Now it is an agency that has lost its way. It doesn't care about environmental protection, but it carries favor from the Oil and Gas Industry because there's one Oil and Gas proponent in the White House. This is not environmental protection; this is a scandal.   Remember the Environmental Protection Agency exists to protect the environment. EPA Response: The U. S. Environmental Protection Agency strives to implement programs based on legislation enacted by the U. S. Congress, and according to congressional intent where such intent has been expressed. There are often different interpretations of statutory language. This may be one of those situations. EPA intends to spend the next 2 years carefully evaluating all aspects of this decision, and hopes to make a decision that is fair, reasonable and protective of the environment. I E1 001 Comment Summary 104 We already prepare and implement Erosion and Sedimentation Plans for the drilling of our wells. We adhere by our plans because it is in our best interest to keep our rig road and well locations as dry as possible during wet weather to minimize costs associated with operating heavy equipment in muddy conditions. It only takes three or four days to drill a well and, weather permitting, our roads and locations are recontoured close to the original topography, then re seeded, within several months, or as soon as the appropriate equipment can be scheduled to do so. For all these reasons, I can't imagine that an additional permitting burden will provide any incremental environmental benefit. EPA Response: EPA appreciates this comment and will consider it when contemplating next steps during the two year extension. This comment is not inconsistent with today's action. I E1 031 Comment Summary 105 Our wells are shallow, not deeper than 4,000 feet, and generally take about 4 days to drill and an additional week is required to complete and recover the well site to original contour. This is a relatively short period of time for a fairly small footprint of a well site generally less than one acre in size to be exposed to potential storm water influx. Should such occur, our drilling plans include procedure to mitigate the impact of such flows. Most of the wells are in rural areas and not infrequently in areas previously strip mined. The impact of the environment is minimal but it does provide landowners with another source of income as well as a source of natural gas for household use. Our activity is regulated and monitored by the PA Dept. of Environmental Protection including a soil and erosion plan submitted prior to each moving. EPA Response: EPA appreciates this comment and will consider it when contemplating next steps during the two year extension. This comment is not inconsistent with today's action.