[Federal Register Volume 75, Number 132 (Monday, July 12, 2010)]
[Notices]
[Pages 39683-39691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-16909]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OW-2010-0126; FRL-9174-2]
Clean Water Act Section 312(b): Notice Seeking Stakeholder Input
on Petition and Other Request To Revise the Performance Standards for
Marine Sanitation Devices
AGENCY: Environmental Protection Agency.
ACTION: Notice of petition and other request for rulemaking; request
for comments.
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SUMMARY: This action notifies the public that the Environmental
Protection Agency (EPA or ``the Agency'') has received a petition for
rulemaking from Friends of the Earth (FOE) and another separate request
for rulemaking under section 312 of the Clean Water Act (CWA). In
general these rulemaking-related requests ask EPA to revise its
regulations establishing performance standards for vessel sewage
treatment devices under the CWA. The rulemaking petition from FOE also
requests that EPA establish monitoring, recordkeeping and reporting
requirements under the CWA to ensure compliance with the performance
standards. EPA has not made a decision on whether to grant or deny the
rulemaking requests, nor is the Agency proposing any changes to the
performance standards or other provisions of its regulations at this
time. Rather, the purpose of today's Notice is simply to make the
public aware of the issues raised in the requests for rulemaking and to
obtain the public's input, in the form of comment and relevant
information, to help EPA determine appropriate action in response to
each of these requests. In particular, EPA seeks input regarding: The
universe of vessels operating on navigable waters that use sewage
treatment devices; technical information on the performance,
effectiveness and costs of vessel sewage treatment devices, including
performance testing data; suggestions on what, if any, changes to the
performance standards might be appropriate; and information on
monitoring, recordkeeping and reporting approaches for vessel sewage
discharges.
DATES: Comments must be received on or before November 9, 2010.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2010-0126, by one of the following methods:
1. http://www.regulations.gov: Follow the online instructions for
submitting comments.
2. E-mail: [email protected], Attention Docket ID No. EPA-HQ-OW-
2010-0126,
3. U.S. Mail: Water Docket, U.S. Environmental Protection Agency,
Mailcode: 2822-1T, 1200 Pennsylvania Ave., NW., Washington, DC 20460,
Attention: Docket ID No. EPA-HQ-OW-2010-0126. Please include a total of
two copies in addition to the original.
4. Hand Delivery or Courier Service: Water Docket, EPA Docket
Center, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington,
DC 20004, Attention: Docket ID No. EPA-HQ-OW-2010-0126. Such deliveries
are only accepted during the Docket's normal hours of operation, and
special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2010-
0126. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA
[[Page 39684]]
Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For
additional instructions on submitting comments, go to Unit I.B and Unit
VI of the SUPPLEMENTARY INFORMATION section of this document.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Water Docket. The
Office of Water (OW) Water Docket Center is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The Water Docket
telephone number is (202) 566-2426, and the Docket's address is Water
Docket, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington,
DC 20004. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding legal holidays. The telephone number
for the Public Reading Room is (202) 566-1744.
FOR FURTHER INFORMATION CONTACT: Kathryn Benz, U.S. Environmental
Protection Agency Headquarters, Office of Water, Office of Wetlands,
Oceans, and Watersheds, Mailcode: 4504T, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone number: (202) 564-1223; e-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
Today's Notice does not contain, modify or establish any regulatory
requirements, nor does it discuss any specific regulatory options. This
Notice simply: (1) Notifies the public that EPA has received a petition
for rulemaking and another separate request for rulemaking
(collectively, ``rulemaking requests'') asking the Agency to revise the
performance standards for marine sanitation devices (MSDs) (devices
that treat vessel sewage) under section 312(b)(1) of the CWA and
provides a summary of those requests, and (2) seeks comment, technical
input, and factual information on issues associated with the requests.
Today's Notice will be of interest to the general public, State
agencies, other Federal agencies, manufacturers of MSDs, independent
laboratories, and owners or operators of commercial and recreational
vessels with toilets installed onboard that operate on U.S. navigable
waters. This listing is not intended to be exhaustive, but rather
provides a guide for readers to identify which entities might be
interested in this Notice. Other types of entities not listed here
might also be interested in this Notice.
B. What should I consider as I prepare my comments for EPA?
1. Submitting Confidential Business Information (CBI)
Do not submit CBI to EPA through http://www.regulations.gov or e-
mail. For CBI information on a disk or CD-ROM that you mail to EPA,
mark the outside of the disk or CD-ROM as CBI and then identify
electronically within the disk or CD-ROM the specific information that
is claimed as CBI. In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket. Information marked as CBI will not be
disclosed except in accordance with procedures set forth in 40 CFR Part
2. Additional information on submitting CBI for purposes of this Notice
is included in Unit VI of the SUPPLEMENTARY INFORMATION section of this
document.
2. Tips for Preparing Your Comments
When submitting comments, please:
Identify this Notice by docket number and other
identifying information (subject heading, Federal Register date, and
page number).
Follow directions. The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives;
and provide reasons for your suggested alternatives.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns and
suggest alternatives.
Explain your views as clearly as possible.
Make sure to submit your comments and any supporting
information/data by the comment period deadline identified in this
Notice.
C. How can I get copies of this document and other related information?
1. Docket. EPA has established an official public docket for this
Notice under Docket ID. No. EPA-HQ-OW-2010-0126. The official public
docket consists of the documents specifically referenced in this
Notice, any public comments received, and other information related to
this Notice. Although a part of the official docket, the public docket
does not include CBI or other information whose disclosure is
restricted by statute. The official public docket is the collection of
materials that is available for public viewing at the Water Docket, EPA
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20004.
This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The Docket telephone number
is (202) 566-2426. A reasonable fee will be charged for copies.
2. Electronic Access. An electronic version of the public docket,
including this Federal Register document, is available through EPA's
electronic public docket and comment system. You may access the public
docket at http://www.regulations.gov to view public comments, to access
the index listing of the contents of the official public docket, and to
access those documents in the public docket that are available
electronically. For additional information about EPA's public docket,
visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. Although not all docket materials may be available
electronically, you may still access any of the publically available
docket materials through the Docket Facility identified in Unit I.C(1).
II. Regulation of Sewage Discharges From Vessels Under the Clean Water
Act
A. Relationship Between Clean Water Act Sections 312 and 402
The Clean Water Act (CWA) is the centerpiece of Federal legislation
addressing the discharge of pollutants into waters of the United
States. Section 301(a) of the CWA provides that ``the discharge of any
pollutant by any person shall be unlawful'' unless the discharge is in
compliance with certain other sections of the Act. 33 U.S.C. 1311(a).
The CWA defines ``discharge of a pollutant'' as ``(A) any addition of
any pollutant to navigable waters from any point source, (B) any
addition of any pollutant to the waters of the contiguous zone or the
ocean from any point source other than a vessel or other floating
[[Page 39685]]
craft.'' 33 U.S.C. 1362(12). A ``point source'' is a ``discernible,
confined and discrete conveyance'' and includes a ``vessel or other
floating craft.'' 33 U.S.C. 1362(14). One way a person may discharge a
pollutant without violating the section 301 prohibition is to obtain a
National Pollutant Discharge Elimination System (NPDES) permit under
section 402. 33 U.S.C. 1342.
While EPA has issued an NPDES Vessel General Permit (VGP) for
discharges incidental to the normal operation of certain vessels,
vessel sewage discharges within the meaning of CWA section 312 are not
subject to NPDES permitting and are thus excluded from coverage under
the VGP. This is because, while sewage is defined as a ``pollutant''
under the CWA, sewage from vessels within the meaning of section 312,
which includes graywater in the case of commercial vessels operating on
the Great Lakes, is exempt from this statutory definition. 33 U.S.C.
1322(a)(6); 33 U.S.C. 1362(6). As a result, vessel owners/operators are
not required to obtain NPDES permits before discharging this waste.\1\
Rather, Congress enacted a separate non-permitting scheme--CWA section
312--to regulate the discharge of sewage from vessels.
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\1\ Note, however, that commercial vessels greater than 79 feet
in length which are not operating on the Great Lakes need to obtain
coverage under EPA's recently issued VGP if the vessel discharges
graywater combined with sewage in one effluent stream. Under the
VGP, discharges of graywater that contain sewage are eligible for
coverage under the permit (except for those discharges from
commercial vessels in the Great Lakes) and must meet the discharge
limitation requirements in Parts 2 and 5 (if applicable), as well as
any applicable CWA section 312 requirements for sewage.
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B. CWA Section 312
CWA sections 312(a)-(m) provide the framework under which EPA and
the U.S. Coast Guard regulate sewage discharges from vessels. Section
312(h) prohibits vessels equipped with installed toilet facilities from
operating on the navigable waters (which include the three mile
territorial seas), unless the vessel is equipped with an operable MSD
certified by the Coast Guard to meet applicable performance standards.
33 U.S.C. 1322(h). The CWA defines a ``marine sanitation device'' as
``any equipment for installation on board a vessel which is designed to
receive, retain, treat, or discharge sewage, and any process to treat
such sewage.'' 33 U.S.C. 1322(a)(5). ``Sewage'' is ``human body wastes
and the wastes from toilets and other receptacles intended to receive
or retain body wastes'' and includes graywater discharges from
commercial vessels (as defined at 33 U.S.C. 1322(a)(10)) operating on
the Great Lakes. 33 U.S.C. 1322(a)(6). Discharges of graywater from
non-commercial vessels on the Great Lakes, and from all vessels
operating outside of the Great Lakes, are not regulated under CWA
section 312.
The provisions of section 312 are implemented jointly by EPA and
the Coast Guard. EPA sets performance standards for MSDs and is
involved in the establishment of no discharge zones (NDZs) for vessel
sewage. 33 U.S.C. 1322(b) and (f). The Coast Guard is responsible for
developing regulations governing the design, construction,
certification, installation and operation of MSDs, consistent with
EPA's standards. 33 U.S.C. 1322(b) and (g).
Unlike the section 402 NPDES program, States have a limited role in
implementing the section 312 vessel sewage program. Except in the case
of houseboats (as defined at CWA section 312(f)(1)(B)), States may not
adopt or enforce any statute or regulation of the State or a political
subdivision with respect to the design, manufacture, installation, or
use of any MSDs. States may, in certain circumstances, request that EPA
establish NDZs for vessel sewage or, after required findings are made
by EPA, establish such zones themselves. See generally 33 U.S.C.
1322(f); see also Unit II.A.3 of the SUPPLEMENTARY INFORMATION section
of this document.
The CWA also vests the Coast Guard and States with authority to
enforce the provisions of section 312 and its implementing regulations.
33 U.S.C. 1322(k). Persons who tamper with an installed certified MSD,
or who operate vessels subject to section 312 without operable MSDs,
are subject to civil penalties of up to $5,000 and $2,000,
respectively, for each violation; manufacturers who sell a non-
certified MSD, or who sell a vessel subject to section 312 that is not
equipped with a certified MSD, are subject to civil penalties of up to
$5,000 for each violation. See 33 U.S.C. 1322(j).
1. No Discharge Zones
Section 312 authorizes the establishment of NDZs, areas in which
both treated and untreated sewage discharges from vessels are
prohibited. See 33 U.S.C. 1322(f). States may establish an NDZ for some
or all of their waters if EPA determines that ``adequate facilities for
the safe and sanitary removal and treatment of the sewage from all
vessels are reasonably available.'' 33 U.S.C. 1322(f)(3). States may
also request that EPA establish NDZs by rulemaking (1) if EPA
determines that the protection and enhancement of the quality of the
waters warrants such a prohibition, or (2) to prohibit the discharge of
vessel sewage into a drinking water intake zone. 33 U.S.C.
1322(f)(4)(A)-(B). Additional information on NDZs can be found by
visiting the following EPA Web site: http://www.epa.gov/owow/oceans/regulatory/vessel_sewage/vsdnozone.html.
2. EPA Performance Standards (40 CFR Part 140)
Section 312(b)(1) of the CWA provides that ``after giving
appropriate consideration to the economic costs involved, and within
the limits of available technology, [EPA] shall promulgate Federal
standards of performance for marine sanitation devices * * * which
shall be designed to prevent the discharge of untreated or inadequately
treated sewage into or upon the navigable waters * * *''. 33 U.S.C.
1322(b)(1). Further, the standards must be consistent with maritime
safety and marine and navigation laws and regulations. Id. Following
this mandate, EPA finalized the performance standards for MSDs on
January 29, 1976. The regulations promulgated at 40 CFR 140.3
distinguish between (1) MSDs discharging in freshwaters whose inlets or
outlets prevent ingress or egress by vessel traffic subject to the
regulations, or in rivers that are not capable of navigation by
interstate vessel traffic subject to the regulations, and (2) MSDs
discharging in all other water bodies.
In freshwaters not subject to ingress or egress by vessel traffic
or in rivers that are not capable of interstate vessel traffic, no
discharge of sewage is allowed. To meet this requirement, all vessels
with installed toilets operating in these water bodies must be equipped
with a device that prevents the discharge of treated or untreated
sewage (i.e., a holding tank), or the operator must secure the
treatment device so as to prevent the discharge of sewage. See 40 CFR
140.3(a)(1).
EPA set separate performance standards for MSDs discharging in all
other water bodies. On or before January 30, 1980, if the MSD had a
discharge, it was required to produce an effluent with no visible
floating solids and a fecal coliform bacterial count not greater than
1,000 per 100 milliliters (mL). See 40 CFR 140.3(a)(2). After January
30, 1980, EPA generally required MSDs which have a discharge to produce
an effluent with a fecal coliform bacterial count not greater than 200
per 100 mL, and no more than 150 milligrams (mg) total suspended solids
per liter. See 40 CFR 140.3(d). See also 40 CFR 140.3(b) (describing
applicability of performance
[[Page 39686]]
standards to vessels owned and operated by the U.S. Department of
Defense), and 40 CFR.140.3(e) and (f) (describing applicability of
performance standards to certain vessels).
3. Coast Guard's Regulation of MSDs (33 CFR Part 159)
Under the CWA, the Coast Guard is responsible for promulgating
regulations governing the design, construction, installation, and
operation of MSDs based on EPA's performance standards. 33 U.S.C.
1322(b) and (g). This responsibility includes certification of MSDs.
There are currently three types of MSDs: \2\
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\2\ Section 312 allows the Coast Guard, after consultation with
EPA, to ``distinguish among classes, type, and sizes of vessels as
well as between new and existing vessels, and may waive
applicability of standards and regulations as necessary or
appropriate for such classes, types and sizes of vessels.'' 33
U.S.C. 1322(c)(2). Pursuant to this authority, the Coast Guard
established three different categories of MSDs with different
applications of EPA's performance standards. See generally 33 CFR
159.53.
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Type I MSDs are flow-through treatment devices that
commonly use maceration and disinfection for the treatment of sewage.
Type I devices may be installed only on vessels less than or equal to
65 feet in length. The performance standard applied to Type I MSDs is
to produce an effluent with no visible floating solids and a fecal
coliform bacterial count not greater than 1,000 per 100 mL.
Type II MSDs are also flow-through treatment devices,
which may employ biological treatment and disinfection, although some
Type II MSDs use maceration and disinfection. Type II MSDs may be
installed on vessels of any length. The performance standard applied to
Type II MSDs is to produce an effluent with a fecal coliform bacterial
count not greater than 200 per 100 mL, and no more than 150 mg total
suspended solids per liter.
Type III MSDs are holding tanks, where sewage is stored
until it can be disposed of shore-side or at sea (beyond three miles
from shore). Type III MSDs may be installed on vessels of any length.
The Coast Guard may certify a product line of MSDs for vessel
installation and use if the production-quality model MSD complies with
Coast Guard's design and testing criteria (33 CFR part 159), as
confirmed by testing conducted at a Coast Guard-accepted independent
laboratory. After Coast Guard review and certification, each MSD model
is designated a certification number and issued a Certificate of
Approval, typically valid for five years. MSDs manufactured during the
certification period are deemed to have met the relevant performance
standards and certification requirements and may be installed on
vessels. During vessel inspections, the Coast Guard may examine an MSD
to ensure that it is operable. 33 U.S.C. 1322(h)(4).
The Coast Guard's regulations at 33 CFR part 159 apply to MSDs
offered for sale or resale, or imported into the United States for sale
or resale, and to vessels that have toilets and MSDs installed onboard
and operate in the navigable waters. In addition to CWA section 312,
and as further described in Unit V in the SUPPLEMENTARY INFORMATION
section of this document, sewage discharges from certain vessels may
also be subject to regulation under other statutes or international
treaties including the Departments of Labor, Health and Human Services,
and Education, and Related Agencies Appropriations Act, 2001, also
known as ``Title XIV'' (applies to certain cruise ships operating in
Alaska), and/or Annex IV to the ``International Convention for the
Prevention of Pollution from Ships, 1973, as modified by the Protocol
of 1978 relating thereto'' (``MARPOL'') (applies if the vessel's flag
State is a party to Annex IV).
III. Summary of Rulemaking Requests
EPA received the following petition for rulemaking and other
separate request for rulemaking asking the Agency to revise its
regulations establishing performance standards under section 312(b) of
the CWA:
A. Friends of the Earth Petition
On April 28, 2009, pursuant to the Administrative Procedure Act,
Friends of the Earth (FOE) petitioned EPA to initiate rulemaking to
revise the regulations containing the CWA section 312(b) performance
standards for Type II MSDs. FOE also requests that EPA establish
``strong'' monitoring, recordkeeping and reporting requirements
pursuant to CWA section 312 to ensure compliance with the performance
standards.
B. Other Request for Rulemaking
EPA received separate letters forwarded by Representative C.W. Bill
Young (Florida, 10th District) and Senator Bill Nelson (Florida), dated
December 10, 2008, and April 9, 2009, respectively, on behalf of their
constituent, Charles B. Husick. In general, Mr. Husick requests that
EPA: (1) Establish new performance standards for Type I MSDs (installed
on vessels less than or equal to 65 feet in length); and (2) revise the
existing regulations at 40 CFR Part 140 to allow certain vessels
equipped with MSDs that meet the revised performance standards to
discharge in tidal waters, including areas designated as NDZs, except
those water bodies where it could be demonstrated that discharges of
effluent meeting the proposed performance standards would cause
``measurable harm to the aquatic environment.''
C. Documents Cited in Rulemaking Requests
Both FOE and Mr. Husick assert that the CWA section 312(b)
performance standards are outdated, and that available technology can
meet more stringent standards than the current requirements for MSDs.
To support these contentions, Mr. Husick cites a draft report (now
final) detailing performance evaluation tests performed by EPA on two
Type I MSD models (EPA final report, ``Performance Evaluation of Type I
Marine Sanitation Devices'' (2010), available at: http://www.epa.gov/ORD/NRMRL/pubs/600r10008/600r10008.pdf; also available in the docket
for this Notice), and FOE primarily cites data contained in EPA's
``Cruise Ship Discharge Assessment Report'' (2008) that assessed waste
streams from cruise ships operating in Alaska, and analyzed the
environmental management, including treatment, of those waste streams
(available at: http://www.epa.gov/owow/oceans/cruise_ships/cruise_ship_disch_assess_report.html; also available in the docket for this
Notice).
D. Status of the Rulemaking Requests
On May 14, 2009, EPA sent a response to FOE acknowledging receipt
of the petition. EPA also provided responses to Representative Young
and Mr. Husick on March 12, 2009, and June 10, 2009, respectively. In
the letters to Mr. Husick and Representative Young, EPA noted that the
Agency would consider Mr. Husick's opinions and requests about
performance standards for Type I MSDs. In response to Mr. Husick's
request that EPA revise the regulations at 40 CFR part 140 to allow
certain vessels equipped with devices that meet revised performance
standards to discharge in tidal waters, including areas designated as
NDZs, EPA's letter noted that the CWA does not currently provide EPA
with the authority to allow this request with respect to NDZs. In
particular, EPA's letter noted that CWA section 312(f)(3) provides that
a ``State may completely prohibit the discharge from all vessels of any
sewage, whether treated or not * * *''. FOE's petition, the letters
forwarded by Representative Young and Senator Nelson to the
[[Page 39687]]
Agency on behalf of Mr. Husick, and EPA's initial responses to these
requests are available in the docket for this Notice.
IV. Request for Public Input and Comment
There are a number of complex issues that EPA, in consultation with
the Coast Guard, would need to consider should EPA decide to initiate
rulemaking. These issues include, for example, how to minimize, as
appropriate, any potential inconsistencies between domestic or
international laws that regulate discharges of vessel sewage and any
revisions to the CWA section 312 program. Based on these complexities,
EPA is seeking public input as it determines how best to respond to the
rulemaking requests.
We welcome public input on all technical and programmatic issues
that the public believes warrant our consideration in determining how
to respond to the rulemaking requests, and what, if any, changes to the
performance standards for MSDs are appropriate. In particular, we are
interested in obtaining information and data on vessel sewage treatment
devices that have undergone rigorous, verifiable and repeatable testing
or evaluation. Furthermore, we are interested in any analytical data
obtained from treated sewage samples taken at the point of discharge
from treatment devices installed onboard vessels. The Agency is already
coordinating with the Coast Guard to collect such existing information.
Today's Notice is intended to ensure we obtain early public input and
all relevant and currently available information to inform any future
Agency decisions.
As previously noted, in addition to regulation under CWA section
312, sewage discharges from certain vessels may also be subject to
regulation under a variety of other statutes or international treaties,
including Title XIV and/or MARPOL Annex IV. It is important to consider
these regimes when providing data and responding to the categories and
questions posed below. For additional information on Title XIV and
MARPOL Annex IV, please refer to Unit V in the SUPPLEMENTARY
INFORMATION section of this document.
While we welcome information and comments on all issues related to
the rulemaking requests and potential revisions to the performance
standards for MSDs, we especially would appreciate input, in the form
of public comment, relevant information or data, on topics outlined in
the following categories:
CATEGORY 1--What existing public or private data sources are
available for use in identifying, categorizing, and describing:
A. The numbers, types, and service of foreign-flagged and domestic
vessels currently operating in U.S. navigable waters that have toilets
installed onboard?
B. Of the domestic-flagged vessels described in response to inquiry
(1.A) above, how many have one (or more) of the following sewage
treatment devices installed onboard:
Type I MSD?
Type II MSD?
Type III MSD?
C. Of the foreign-flagged vessels described in response to inquiry
(1.A) above, how many have one (or more) of the following sewage
treatment devices installed onboard: \3\
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\3\ The CWA defines a ``marine sanitation device'' as ``any
equipment for installation on board a vessel which is designed to
receive, retain, treat, or discharge sewage, and any process to
treat such sewage.'' 33 U.S.C. 1322(a)(5). Under this definition,
Sewage Treatment Plants, Sewage Comminuting and Disinfecting
Systems, or Sewage Holding Tanks are all types of MSDs. However,
these terms have distinct applications under the CWA and MARPOL
Annex IV regimes. Therefore, vessel sewage treatment devices are
referred to as MSDs for purposes of the CWA, and in the context of
MARPOL Annex IV, vessel sewage treatment devices are referred to as
Sewage Treatment Plants, Sewage Comminuting and Disinfecting Systems
or Sewage Holding Tanks.
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Type II MSD (or) Sewage Comminuting and Disinfecting
System?
Type III MSD (or) Sewage Holding Tank?
Sewage Treatment Plant (STP)?
D. Of those foreign-flagged vessels with STPs described in response
to inquiry (1.C) above, how many have devices that are:
Certified to meet the MARPOL Annex IV effluent standards
and performance tests adopted in Resolution MEPC.2(VI)?
Certified to meet the MARPOL Annex IV effluent standards
and performance tests adopted in Resolution MEPC.159(55)?
Desirable input under this category would include either citations
to databases or documents where such information is available, or the
submission of actual information on vessel numbers and categories with
citations to the source data. If submitting actual information or data
on vessel numbers or categories, please also include information that
describes the vessels. Examples of useful information include: Whether
the vessel is domestic or foreign-flagged; whether the vessel is used
in recreational, public or commercial service; if the vessel is used in
commercial service, the nature of the service; the size (i.e., length
and tonnage) of the vessel, the number of persons the vessel is
certified to carry, and the rated capacity of the vessel's sewage
treatment device. This information would be useful to the Agency in
identifying and categorizing the universe of vessels affected by any
potential revisions to the performance standards. Information or
suggestions on how to obtain this information for foreign-flagged
vessels would be especially useful.
CATEGORY 2--What existing product information or performance data
is available for:
A. MSDs certified to meet the performance standards and testing
requirements described at 33 CFR Part 159? (Please Note: EPA is seeking
input on information that is not currently contained in the Coast
Guard's certification files.)
B. STPs that have been tested and received Certificates of Type
Approval certifying that the device meets the MARPOL Annex IV effluent
standards and performance tests in either Resolution MEPC.2(VI) or
Resolution MEPC.159(55)?
Citations to databases or documents where available, or the
submission of actual product information, product literature (e.g.,
operating manual or guidance), and performance data for the device,
together with supporting citations to the underlying data, would be
helpful. Table 1 lists specific information of interest.
[[Page 39688]]
Table 1
------------------------------------------------------------------------
Performance data (Please note: EPA
General product information is interested in analytical data in
their entirety, if possible)
------------------------------------------------------------------------
Manufacturer name and Certification testing
contact information (address, date(s).
phone/fax number, e-mail address, Testing location:
Web site address). laboratory or on vessel.
Model name/number. Testing methodology/
Type I, II or III (MSD testing protocol used, including
only). the analyte test methods used
(e.g., a given EPA or ISO test
method).
Date when Certificate of Information regarding the
Type Approval was issued (and copy volume of process water added per
of Certificate, if available). unit volume of raw influent.
Certifying country/body. Influent and effluent
total suspended solids (TSS)
concentrations.
Rated capacity. Influent and effluent
thermotolerant coliform
concentrations.
Pretreatment method (if Influent and effluent e.
any). coli concentrations.
Treatment method (if any). Influent and effluent
enterococci concentrations.
Disinfection method (if Influent and effluent
any). biological oxygen demand over five
System designed to treat days (BOD5).
graywater only, sewage only, or Influent and effluent
combined graywater and sewage; chemical oxygen demand (COD).
source of graywater (if Where available, influent
applicable). and effluent nutrient
Vacuum or gravity feed. concentrations (e.g., total
Flushwater: Fresh, salt, phosphorus, orthophosphate, total
or both. nitrogen, total Kjeldahl nitrogen,
Ability for the system to ammonia nitrogen,
treat nutrients (e.g., nitrogen, Nitrate+Nitrite).
phosphorous, etc.) (if any) or Effluent pH.
other pollutants for which limits Effluent total residual
do not exist under the existing chlorine/total residual oxidant.
CWA 312 standards.
Number of samples
collected in any given test run or
sampling period.
Number of zero or non-
detected values (include MDL and
MRL) in any given test run or
sampling period.
Laboratory name and
contact information (address,
phone/fax number, e-mail address).
Data on potential
differences in the equipment's
ability to treat a combined
graywater and sewage influent
versus a sewage-only influent (if
applicable).
------------------------------------------------------------------------
EPA is also interested in any information about the installation
requirements, limitations, and costs associated with the sewage
treatment devices. Examples of useful information include:
The costs of the devices (including initial capital costs,
installation costs, and operation and maintenance costs), the extent to
which these costs vary based on the type or class of vessel, and the
number of vessels on which the device has been installed.
The difficulty or ease of installing these devices on
either new or existing vessels (including whether installation requires
dry docking, and if so, for how long, and how much space is required
onboard a vessel for these devices to operate).
Any limitations on the use of a device with regard to
vessel length, tonnage, type of service, treatment volume or flow
rates, power requirements, influent salinity, crew training needs or
safety concerns, and the expected lifespan of the device once
installed.
This information would be useful to the Agency in determining
whether there are available vessel sewage treatment devices that can
achieve more stringent standards than the existing CWA section 312(b)
performance standards, and what limitations in technology might exist.
This information would also be useful to the Agency should it decide to
consider the need for regulation of other pollutants (e.g., nutrients,
metals) contained in vessel sewage waste streams, and the degree to
which available devices are able to treat these additional pollutants.
Please note that for category 2, EPA is most interested in data,
information or public comment on devices that have received
certification from a competent authority (e.g., either a Certificate of
Approval issued by the Coast Guard or a Certificate of Type Approval
issued by a certifying body pursuant to MARPOL Annex IV), or have
undergone equally rigorous independent testing or evaluation.
CATEGORY 3--Are you aware of any existing information about other
countries' domestic laws that establish standards or discharge
limitations for vessel sewage?
Citations to the relevant laws or submission of the actual text
describing the standards or discharge limitations would be useful.
Other examples of helpful information under this category include:
Descriptions of the types of vessels (e.g., commercial, recreational
and/or public vessels) and the discharges covered by the domestic
regulatory regime; the geographic scope of such regimes; the specific
nature of the regulatory standards or limitations; and the technical
basis for such standards or limitations. This information would be
useful as the Agency considers whether, and, if so, how to revise the
MSD performance standards and what technical and/or operational
limitations might exist based on other countries' efforts to regulate
vessel sewage discharges. Please note that for this inquiry EPA is
primarily interested in other countries' domestic standards or
discharge limitations for vessels operating in their waters or flying
their flag, and that we already have information on relevant
international treaty requirements (e.g., the MARPOL Annex IV effluent
standards; see Unit V of the SUPPLEMENTARY INFORMATION section of this
document for a summary description of MARPOL Annex IV).
CATEGORY 4--Given existing international and Federal limitations
and controls regulating discharges of sewage from vessels, and in light
of the numerous CWA section 312 State-established NDZs, should EPA
consider revisions to the performance standards for MSDs, and what
should be the basis for such a decision?
Readers are again invited to refer to illustrative examples of
relevant statutes and treaties that are briefly summarized in Unit V of
the SUPPLEMENTARY INFORMATION section of this document. Helpful
comments under this category would address what revisions to the
[[Page 39689]]
performance standards might be necessary and for which type(s) of MSD
(e.g., Type I versus Type II, or both), and what are the impacts, both
positive and negative, of revising the current CWA section 312
performance standards. This information would be useful to the Agency
as it considers relative priorities for possible rulemaking, and in the
event that EPA grants either rulemaking request, this information would
also be helpful as the Agency determines how to best minimize
inconsistencies with other applicable regulatory regimes.
CATEGORY 5--What existing information is available on the current
practices, protocols or regulatory approaches to testing, monitoring
and/or reporting sewage discharges from vessels, and what, if any, are
the practical limitations or burdens associated with these practices?
Desirable input under this category would include information on if
and how sewage effluent is currently monitored or tested and how data
are reported to regulatory bodies, either voluntarily or to meet
regulatory requirements. Desirable information also includes the
specific parameters monitored or tested, costs associated with the
testing, monitoring and recordkeeping practices, the cost of any vessel
retrofitting to allow for the testing and monitoring, the frequency of
testing and/or monitoring, and information on the use/availability of
sewage alarm monitors. Helpful information also includes what other
measures are being used to verify performance and to assess whether the
sewage treatment device is properly operating or functioning once
installed onboard. This information would be useful to the Agency as it
determines how it might respond to FOE's request for a monitoring and
recordkeeping program under CWA section 312.
V. Selected Examples of Other Regulatory Schemes Addressing Sewage
Discharges From Vessels
A. The International Convention for the Prevention of Pollution From
Ships
Because of the international nature of maritime commerce, many of
the customs, practices, rules, and regulations associated with vessel
operations are addressed through international agreements and
conventions. A majority of ocean-going vessels operating in U.S. waters
are registered in foreign countries and subject to the ``International
Convention for the Prevention of Pollution from Ships, 1973, as
modified by the Protocol of 1978 relating thereto'' (``MARPOL'').
The Annexes to MARPOL address a range of operational discharges
from vessels. The United States is a party to Annexes I (Oil), II
(Noxious Liquid Substances), III (Harmful Substances in Packaged Form),
V (Garbage), and VI (Air Emissions), but not Annex IV (Sewage). Thus,
the United States is not bound by the provisions of Annex IV. However,
in addition to being subject to the vessel sewage provisions of CWA
section 312 while in the U.S. three mile territorial sea or inland
waters, vessels flying the flag of countries that are parties to MARPOL
Annex IV remain subject to the Annex's requirements no matter where
these vessels sail. Maritime authorities of Annex IV parties (the
``flag State'' or ``Administration'') are responsible for ensuring that
the vessels registered under their flag are in compliance with
applicable Annexes and the corresponding guidelines and regulations.
1. MARPOL Annex IV
The principal international instrument regulating discharges of
sewage from vessels is Annex IV to MARPOL. Annex IV initially entered
into force in September 2003, was thereafter revised, and the revisions
entered into force internationally in August 2005. See resolution
MEPC.115(51); available in the docket for this Notice. Annex IV applies
to subject vessels engaged in international voyages of 400 gross
tonnage and above, and to subject vessels of less than 400 gross
tonnage which are certified to carry more than 15 persons (passengers
and crew). Annex IV is effectuated by regulations (binding on
signatories to the Annex) and associated guidelines that contain, among
other requirements, limits on the discharge of sewage into the sea, a
provision for reception facilities at ports and terminals to receive
sewage, and requirements for the survey and certification of a vessel's
sewage treatment device. Vessels that comply with Annex IV requirements
are issued an International Sewage Pollution Prevention Certificate
(ISPPC) by their Administration or Recognized Organization (RO).
Vessels subject to Annex IV are required to undergo periodic
surveys to ensure compliance with the Annex IV requirements; surveys
are to be conducted every five years by the Administration or RO. Among
other things, a vessel undergoing a survey must demonstrate that it is
equipped with either (1) An STP type-approved by the Administration,
taking into account the operational requirements based on standards and
test methods developed by the International Maritime Organization
(IMO)'s Marine Environment Protection Committee (MEPC), (2) an approved
sewage comminuting and disinfecting system, or (3) an approved sewage
holding tank.
In addition to the survey requirements, Annex IV contains
prohibitions on the discharge of sewage. In particular, Annex IV
prohibits the discharge of sewage into the sea except when:
The vessel is discharging comminuted and disinfected
sewage from an approved system at a distance of more than three
nautical miles from the nearest land; or
The vessel is discharging sewage which is not comminuted
or disinfected (i.e., untreated sewage), at a distance of more than 12
nautical miles from the nearest land, provided that sewage that has
been stored in holding tanks, or sewage originating from spaces
containing living animals, is not discharged instantaneously but at a
moderate rate when the ship is en route and proceeding at a speed of at
least four knots (See resolution MEPC.157(55) providing the
recommendations on standards for the rate of discharge of untreated
sewage; available in the docket for this Notice); or
The vessel is using a type-approved STP that has been
certified by the Administration to meet the applicable IMO
recommendations and regulations, the test results are laid down in the
ship's ISPPC, and the effluent does not produce visible floating solids
or cause discoloration of the surrounding water.
2. Revised Annex IV Effluent Standards and Performance Tests for STPs
As previously noted, with respect to STPs, the MARPOL Annex IV
regulations require vessel owners/operators to demonstrate that the
vessel is equipped with a type-approved STP that meets the operational
requirements based on standards and test methods developed by the MEPC.
These MARPOL requirements for certification of an STP are functionally
similar to the Coast Guard's certification process for MSDs: The STP
undergoes a series of performance tests to demonstrate that the device
produces an effluent meeting the prescribed standards outlined in the
MARPOL Annex IV guidelines. Once this demonstration has been made, the
Administration will issue a Certificate of Type Approval for that STP
model.
On December 3, 1976, the IMO adopted effluent standards and
guidelines for performance tests for STPs, and invited signatory
governments to establish testing programs in accordance with the
standards and guidelines. See resolution
[[Page 39690]]
MEPC.2(VI); available in the docket for this Notice. On October 13,
2006, the MEPC adopted revised effluent standards and performance tests
for STPs. See resolution MEPC.159(55); available in the docket for this
Notice. According to the latest resolution adopted by the MEPC, the
revised effluent standards and performance tests reflect ``current
trends for the protection of the marine environment and developments in
the design and effectiveness of commercially available sewage treatment
plants * * *''. Id. The revised standards and testing requirements
apply to STPs installed onboard ships on or after January 1, 2010.
Ships with STPs installed prior to that date may continue to use
equipment certified to the previous standards. See resolution
MEPC.2(VI) for previous standards.
A comparison of the previous (MEPC.2(VI)) and revised
(MEPC.159(55)) MARPOL Annex IV effluent standards for STPs to the
current CWA performance standards for Type II MSDs is presented in the
following table (Table 2).
Table 2
----------------------------------------------------------------------------------------------------------------
MARPOL 73/78 ANNEX IV STANDARDS FOR STPs CWA PERFORMANCE
ANALYTE -------------------------------------------------- STANDARDS FOR TYPE II
MEPC.2(VI) MEPC.159(55) MSDs
----------------------------------------------------------------------------------------------------------------
Coliform............................. Geometric mean <= 250 Geometric mean <= 100 <= 200 per 100 mL
per 100 mL (fecal per 100 mL. (fecal coliform).
coliform; most (thermotolerant
probable number). coliform).
Total Suspended Solids (TSS) (mg/L).. Geometric mean <= 50... Geometric mean......... <= 150.
<= 35..................
pH................................... ....................... 6-8.5. .......................
BOD5 (mg/L).......................... Geometric mean <= 50... Geometric mean. .......................
<= 25..................
COD (mg/L)........................... ....................... <= 125. .......................
Residual Chlorine (mg/L)............. As low as practicable.. < .5. .......................
----------------------------------------------------------------------------------------------------------------
3. Coast Guard Policy With Respect to MARPOL Annex IV and the Revised
Effluent Standards
Although the United States is not a party to MARPOL Annex IV, a
U.S.-flagged vessel engaged in international voyages may still be
required to comply with its provisions if the vessel operates in the
waters of a port State that is a party to Annex IV. The Coast Guard has
developed guidance and policies in order to address the potential for
adverse port State control actions against U.S.-flagged vessels
operating overseas. (This guidance also accords reciprocity to foreign-
flagged vessels subject to Annex IV while operating in waters subject
to the United States' jurisdiction.) See Navigation and Vessel
Inspection Circular (NVIC) No. 1-09 (June 23, 2009); available in this
docket.
Because the United States is not a party to MARPOL Annex IV, the
Coast Guard cannot issue an ISPPC to domestically-flagged vessels, and
instead issues a Statement of Voluntary Compliance (SOVC). U.S.-flagged
vessels engaged in international voyages with sewage treatment devices
that comply with Annex IV standards may be eligible to receive a SOVC.
This certificate, issued by the Coast Guard or an Authorized
Classification Society, demonstrates voluntary compliance with the
revised Annex IV standards and testing requirements. While U.S.-flagged
vessels are not required to obtain an SOVC, these vessels must still be
able to demonstrate compliance with Annex IV while engaged in
international voyages, or risk being detained overseas when operating
in waters subject to the jurisdiction of parties to Annex IV.
The Coast Guard's policy outlined in NVIC No. 1-09 also notes that
Coast Guard-certified Type II MSDs that are installed on or after
January 1, 2010, and are unable to meet the revised Annex IV standards
for STPs may still qualify as sewage comminuting and disinfecting
devices under Annex IV, provided that the vessel is equipped with a
satisfactorily sized storage tank. However, this may mean that some
U.S.-flagged vessels utilizing Type II MSDs will be unable to discharge
treated sewage effluent within three nautical miles of land where the
port State is a signatory to MARPOL Annex IV.
B. Certain Alaska Cruise Ship Operations
Amid growing public concerns about the quantity and quality of
discharges from cruise ships operating in certain areas in Alaska,
Congress enacted an omnibus appropriation on December 21, 2000, that
included new statutory requirements for certain cruise ships
discharging graywater and sewage in Alaska (Departments of Labor,
Health and Human Services, and Education, and Related Agencies
Appropriations Act, 2001, Pub. L. 106-554, 114 Stat. 2763, enacting
into law Title XIV of Division B of H.R. 5666, 114 Stat. 2763A-315, and
codified at 33 U.S.C. 1901 Note (Title XIV)).
Title XIV does not supersede regulation of sewage discharges from
cruise ships under CWA section 312. Rather, Title XIV established
separate discharge standards for sewage and graywater discharges from
those cruise ships authorized to carry 500 or more passengers and
operating in the waters of the Alexander Archipelago, the navigable
waters of the United States within the State of Alaska, and within the
Kachemak Bay National Estuarine Research Reserve. Specifically, Title
XIV requires that such cruise ships discharging within one nautical
mile of shore, or discharging in any Alaskan waters when the vessel is
traveling under six knots, must meet the following standards: for fecal
coliform, the geometric mean of samples taken during any 30-day period
may not exceed 20 fecal coliform per 100 mL, and no more than 10% of
the samples may exceed 40 fecal coliform per 100 mL; for chlorine,
total chlorine residual does not exceed 10.0 micrograms/liter. Title
XIV also requires that the discharged effluent meet secondary treatment
standards for 5-day biochemical oxygen demand, suspended solids, and
pH. See 40 CFR 133.102 (secondary treatment standards). Finally, Title
XIV requires that regulated cruise ships traveling at least six knots
and discharging treated sewage outside of one nautical mile from shore
must meet EPA's CWA section 312 performance standards for Type II MSDs
(an effluent with a fecal coliform bacterial count not greater than 200
per
[[Page 39691]]
100 mL, and no more than 150 mg total suspended solids per liter).\4\
---------------------------------------------------------------------------
\4\ Many of the cruise ships operating in the navigable waters
of the United States are registered under flag Administrations who
are signatories to MARPOL Annex IV. As such, these foreign-flagged
cruise ships subject to Title XIV must meet the requirements of
Annex IV, CWA section 312, and Title XIV.
---------------------------------------------------------------------------
Like the CWA section 312 program, Title XIV is jointly implemented
by EPA and the Coast Guard: Congress provided responsibility for
regulatory discharge standards to EPA and responsibility for
enforcement to the Coast Guard. In particular, Title XIV authorizes EPA
to revise or develop additional standards for sewage and graywater
discharges from cruise ships operating in applicable waters of Alaska,
if appropriate. Alaska is also authorized to petition EPA to establish
NDZs for sewage and graywater discharges from cruise ships regulated
under Title XIV. Title XIV requires the Coast Guard to incorporate an
inspection regime into its commercial vessel examination program that
will verify compliance with the requirements of the statute. Title XIV
also authorizes the Coast Guard to conduct unannounced inspections and
require cruise ship owners/operators to keep logbooks of all sewage and
graywater discharges, and provides for administrative and criminal
penalties for violations of the statute's provisions. The Coast Guard
has promulgated regulations to implement the various provisions of
Title XIV. See 33 CFR 159.301 et seq.
VI. Additional Information on Submitting CBI
You are entitled to assert a business confidentiality claim
covering all or part of the information you submit in response to this
Notice, in accordance with the procedures described in EPA's CBI
regulations, 40 CFR part 2, subpart B. Under 40 CFR 2.201(e), business
confidentiality incorporates the concept of trade secrecy and other
related legal concepts which give (or may give) a business the right to
preserve the confidentiality of business information and to limit its
use or disclosure by others in order that the business may obtain or
retain business advantages it derives from its rights in the
information. EPA will construe your failure to furnish a business
confidentiality claim with your response as a waiver of that claim, and
the information may be made available to the public or authorized
representatives without further Notice to you.
The criteria EPA will use in determining whether material you claim
as business confidential is entitled to confidential treatment are set
forth at 40 CFR 2.208. This regulation provides, among other things,
that you must satisfactorily demonstrate that: (1) The information is
within the scope of business confidentiality as defined at 40 CFR
2.201(e); (2) that you have taken reasonable measures to protect the
confidentiality of the information and that you intend to continue to
do so; (3) the information is not and has not been reasonably
obtainable by legitimate means without your consent; and (4) the
disclosure of the information is likely to cause substantial
competitive harm to your business position. See 40 CFR 2.208 (a)-(d).
Do not submit CBI to EPA through http://www.regulations.gov or e-
mail. Clearly mark the page, paragraph and sentence when identifying
the information that you claim to be CBI. See 40 CFR 2.203(b) for
additional instructions on the method for asserting a business
confidentiality claim. For CBI information on a disk or CD-ROM that you
mail to EPA, mark the outside of the disk or CD-ROM as CBI and then
identify electronically within the disk or CD-ROM the specific
information that is claimed as CBI. In addition to one complete version
of the comment that includes information claimed as CBI, a copy of the
comment that does not contain the information claimed as CBI must be
submitted for inclusion in the public docket. Information so marked
will not be disclosed except in accordance with procedures set forth in
40 CFR part 2. EPA may, without further notice, provide the public or
authorized representative with any information not subject to a CBI
claim.
Dated: July 2, 2010.
Denise Keehner,
Director, Office of Wetlands, Oceans, and Watersheds.
[FR Doc. 2010-16909 Filed 7-9-10; 8:45 am]
BILLING CODE 6560-50-P