Superfund; response and remedial actions, proposed settlements, etc.: Discharges incidental to the normal operation of vessels; permits development, 34241-34249 [E7-12022]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register: June 21, 2007 (Volume 72, Number 119)]
[Notices]
[Page 34241-34249]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jn07-35]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2007-0483; FRL-8329-7]


Development of Clean Water Act National Pollutant Discharge
Elimination System Permits for Discharges Incidental to the Normal
Operation of Vessels

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of intent; request for comments and information.

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SUMMARY: This notice provides the public with early notification that
EPA is in the process of developing National Pollutant Discharge
Elimination System (NPDES) permits under the Clean Water Act (CWA) for
the discharge of pollutants incidental to the normal operation of
vessels and is seeking comment and relevant information from the public
on this matter. Beginning development of NPDES permitting is necessary
in light of a lawsuit in the U.S. District Court for the Northern
District of California in which the Court found that an EPA regulation,
which excludes certain discharges incidental to the normal operation of
vessels from NPDES permitting, exceeded the Agency's statutory
authority. The Court issued a final order in September 2006 that will
vacate (revoke) the regulatory exclusion for discharges incidental to
the normal operation of vessels effective September 30, 2008. As of
that date, those discharges incidental to the normal operation of
vessels previously excluded from NPDES permitting by the regulation
will become prohibited unless the discharge is covered under an NPDES
permit. The decision potentially implicates all vessels, both
commercial and recreational, that have discharges incidental to their
normal operation (e.g., deck runoff, graywater, etc). Although the
Government is appealing this decision to the U.S. Court of Appeals for
the Ninth Circuit, we believe it is prudent to initiate responsive
action now rather than await the outcome of that appeal. Accordingly,
today's notice is being issued to make the public aware of this matter
and obtain their input, in the form of public comment or relevant
information, to further help the Agency in the timely development of an
NPDES permitting framework, which has not existed to date for
discharges incidental to the normal operation of vessels.

DATES: Comments must be received on or before August 6, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2007-0483, by one of the following methods:
     https://www.regulations.gov. Follow the on-line instructions for

submitting comments.
     E-mail: ow-docket@epa.gov. Attention Docket ID No. OW-
2007-0483.
     Mail: Water Docket Environmental Protection Agency,
Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460,
Attention Docket ID No. OW-2007-0483. Please include a total of two
copies in addition to the original.
     Hand Delivery: EPA Docket Center, EPA West, Room 3334,
1301 Constitution Avenue, NW., Washington, DC, Attention Docket ID No.
OW-2007-0483. 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-2007-
0483. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
https://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 https://www.regulations.gov

or e-mail. The https://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
https://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 Docket Center homepage at https://www.epa.gov/epahome/dockets.htm.

For additional instructions on submitting comments, go to Unit I.B of
the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the
https://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 https://www.regulations.gov or in hard copy at the Water Docket, EPA/DC, EPA

West,

[[Page 34242]]

Room 3334, 1301 Constitution Ave., NW., Washington, DC. 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, and the telephone number for the Water
Docket is (202) 566-2426.

FOR FURTHER INFORMATION CONTACT: John Lishman, Water Permits Division,
Office of Wastewater Management (4203M), Environmental Protection
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone
number: (202) 566-1364; fax number: (202) 564-6431; e-mail address: 
lishman.john@epa.gov; or Ruby Cooper, Water Permits Division, Office of

Wastewater Management (4203M), Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202)
564-0757; fax number: (202) 564-6431; e-mail address: 
cooper.ruby@epa.gov.


SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

    Today's notice does not contain or establish any regulatory
requirements. Rather, it (1) provides the public with early notice of
EPA's intent to begin development of NPDES permits under section 402 of
the CWA for discharges incidental to the normal operation of vessels;
(2) explains the U.S. District Court for the Northern District of
California's decision (Northwest Environmental Advocates et al. v. EPA,
No. CV 03-05760 SI.) that determined such discharges are subject to
NPDES permit requirements and describes the status of that litigation;
and (3) requests comment and technical input on matters associated with
the development of such permits.
    Today's notice will be of interest to the general public, state
permitting agencies, other Federal agencies, and owners or operators of
commercial or recreational vessels that may have discharges incidental
to their normal operation. Information available to us from the U.S.
Coast Guard (USCG) indicates that in 2005, vessels equipped with
ballast water tanks alone accounted for 8,400 ships, the majority of
which are foreign-flagged. However, because the Court's decision is not
necessarily limited to vessels with ballast water tanks, the universe
of potentially affected vessels also could include over 13 million
recreational boats, 81,000 commercial fishing vessels, and 53,000
freight and tank barges operating in U.S. waters. These are examples of
some of the types of vessels operating in U.S. waters, and are not
intended to be an exhaustive list.
    There also is a potentially wide variety of discharges incidental
to the normal operation of vessels. For example, under the authority of
CWA section 312(n), EPA identified 39 discharges incidental to the
normal operation of vessels of the Armed Forces. 40 CFR 1700.4 and
1700.5. Besides ballast water, many of these discharges from military
vessels would also be generated as part of the normal operation of non-
military vessels; for example, deck runoff and graywater. Although
promulgated for purposes of implementing CWA section 312(n), and not
the CWA section 402 NPDES program, to the extent those discharges would
also be generated by non-military vessels, they would be of interest as
the Agency determines what types of discharges incidental to the normal
operation of non-military vessels might be implicated by the Court's
decision. Further information on the sources and constituents of
discharges identified for purposes of CWA section 312(n) can be found
in the Technical Development Document for the Phase I Uniform National
Discharge Standards for Vessels of the Armed Forces (EPA 821-R-99-001),
which is available in the docket for today's notice.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through
https://www.regulations.gov or e-mail. Clearly mark the part or all of

the information that you claim to be CBI. 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.
    2. Tips for Preparing Your Comments. When submitting comments,
remember to:
     Identify the 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 by the comment period
deadline identified.

II. Background on Litigation and Regulation of Vessel Discharges Under
CWA

A. What are some of the principal statutory and regulatory provisions
relevant to NPDES permitting and discharges incidental to the normal
operation of vessels?

    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
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).
    The term ``pollutant'' includes, among other things, ``sewage,
garbage * * * biological materials * * * and industrial, municipal, and
agricultural waste discharged into water.'' \1\ One way a person may
discharge a pollutant without violating the section 301 prohibition is
to obtain a section 402 NPDES permit. 33 U.S.C. 1342. Under section
402(a), EPA may ``issue a permit for the discharge of any pollutant, or
combination of pollutants, notwithstanding section 1311(a)'' upon
certain conditions required by the Act.
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    \1\ As will be further discussed in Unit II C of the
SUPPLEMENTARY INFORMATION section of this document, the Act's
definition of ``pollutant'' specifically excludes ``sewage from
vessels or a discharge incidental to the normal operation of a
vessel of the Armed Forces.'' 33 U.S.C. 1362(6).
---------------------------------------------------------------------------

    Less than one year after the CWA was enacted, EPA promulgated a
regulation that excluded discharges incidental to the normal operation
of vessels from

[[Page 34243]]

NPDES permitting. 38 FR 13528, May 22, 1973. After Congress re-
authorized and amended the CWA in 1977, EPA invited another round of
public comment on the regulation. 43 FR 37078, August 21, 1978. In
1979, EPA promulgated the final revision that established the
regulation in its current form. 44 FR 32854, June 7, 1979. That
regulation identifies several types of vessel discharges as being
subject to NPDES permitting, but specifically excludes discharges
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incidental to the normal operation of a vessel as follows:

    The following discharges do not require NPDES permits:
    (a) Any discharge of sewage from vessels, effluent from properly
functioning marine engines, laundry, shower, and galley sink wastes,
or any other discharge incidental to the normal operation of a
vessel. This exclusion does not apply to rubbish, trash, garbage, or
other such materials discharged overboard; nor to other discharges
when the vessel is operating in a capacity other than as a means of
transportation such as when used as an energy or mining facility, a
storage facility or a seafood processing facility, or when secured
to a storage facility or a seafood processing facility, or when
secured to the bed of the ocean, contiguous zone or waters of the
United States for the purpose of mineral or oil exploration or
development. 40 CFR 122.3(a).

    Although other subsections of 40 CFR 122.3 and its predecessor were
the subject of legal challenges (See, NRDC v. Costle, 568 F.2d 1369 (DC
Cir. 1977)), the regulatory text relevant to discharges incidental to
the normal operation of vessels went unchallenged following its
promulgation, and has been in effect ever since.
    However, in December 2003, that long-standing EPA regulation became
the subject of a lawsuit in the U.S. District Court for the Northern
District of California. In March 2005 the Court determined that the
exclusion exceeded the agency's authority under the CWA. The Court
subsequently issued a final order in that case in September 2006 that
will vacate (revoke) the regulatory exclusion in 40 CFR 122.3(a) as of
September 30, 2008. As a result, effective September 30, 2008 (and
assuming the order is not overturned or altered on appeal), discharges
incidental to the normal operation of vessels that are currently
excluded from NPDES permitting by that regulation will become subject
to CWA section 301's prohibition against discharge, unless covered
under an NPDES permit. The CWA authorizes civil and criminal
enforcement for violations of that prohibition and also allows for
citizen suits against violators.

B. How did the lawsuit come about and what did it involve?

    The lawsuit arose from a January 13, 1999, rulemaking petition
submitted to EPA by a number of parties concerned about the effects of
ballast water discharges asking the Agency to repeal its regulation at
40 CFR 122.3(a) that excludes certain discharges incidental to the
normal operation of vessels from the requirement to obtain an NPDES
permit. The petition asserted that vessels are ``point sources''
requiring NPDES permits for discharges to U.S. waters; that EPA lacks
authority to exclude point source discharges from vessels from the
NPDES program; that ballast water must be regulated under the NPDES
program because it contains invasive plant and animal species as well
as other materials of concern (e.g., oil, chipped paint, sediment and
toxins in ballast water sediment) and that enactment of CWA section
312(n) (Uniform National Discharge Standards, also known as the
``UNDS'' program) demonstrated Congress' rejection of the exclusion.
    In response to that petition, EPA first prepared a detailed report
for public comment, Aquatic Nuisance Species in Ballast Water
Discharges: Issues and Options (September 10, 2001). See, 66 FR 49381,
September 27, 2001. After considering the comments received, EPA
declined to reopen the exclusion for additional rulemaking and denied
the petition on September 2, 2003. EPA explained that ever since
enactment of the CWA, EPA has consistently interpreted the Act to
provide for NPDES regulation of discharges from industrial operations
that incidentally occur onboard vessels (such as seafood processing
facilities or oil exploration operations at sea) and of discharges
overboard of materials such as garbage, but not of discharges
incidental to the normal operation of a vessel (such as ballast water).
EPA further explained that Congress had expressly considered and
accepted the Agency's regulation in the years since EPA first
promulgated it, and that Congress chose to regulate these discharges
incidental to the normal operation of vessels through other statutes.
Thus, it was EPA's understanding that Congress had acquiesced to EPA's
long-standing interpretation of how to implement the CWA's ``vessel or
other floating craft'' provisions. Denial of the petition did not
reflect a dismissal of the significant impacts of aquatic invasive
species, but rather that other specific programs had been enacted to
specifically address the issue and that the CWA does not currently
provide an appropriate framework for addressing ballast water and other
discharges incidental to the normal operation of non-military vessels.
    EPA pointed out that when Congress specifically focused on the
problem of aquatic nuisance species in ballast water, it did not look
to or endorse the NPDES program as the means to address the problem.
Instead, as discussed in Units IV A and B of the SUPPLEMENTARY
INFORMATION section of this document, Congress enacted new statutes in
which it directed and authorized the Coast Guard, rather than EPA, to
establish a regulatory program for discharges incidental to the normal
operation of vessels, including ballast water. Nonindigenous Aquatic
Nuisance Prevention and Control Act as amended, 16 U.S.C. 4701 et seq.;
Act to Prevent Pollution from Ships, 33 U.S.C. 1901 et seq.
Additionally, Congress demonstrated awareness of and made no effort to
repeal legislatively EPA's interpretation or to expressly mandate that
discharges incidental to the normal operation of vessels be addressed
through the NPDES permitting program. EPA reasoned that such
Congressional action and inaction in the face of Congressional
awareness of the regulatory exclusion confirmed that Congress accepted
EPA's interpretation and chose the Coast Guard as the lead agency under
other statutes.
    In addition, EPA found significant practical and policy reasons not
to re-open the longstanding CWA regulatory exclusion, reasoning that
there are a number of ongoing activities within the Federal government
related to control of invasive species in ballast water, many of which
are likely to be more effective and efficient than use of NPDES permits
under the CWA. EPA also noted that nothing in the CWA prevents states
from independently regulating ballast water discharges under State law,
should they choose to do so. See, CWA section 510.
    After EPA's September 2003 denial of the petition, a number of
groups filed a complaint in the U.S. District Court for the Northern
District of California. Northwest Environmental Advocates et al. v.
EPA, No. CV 03-05760 SI. The complaint was brought pursuant to the
Administrative Procedure Act, 5 U.S.C. 701 et seq. (the ``APA''), and
set out two Causes of Action. First, the complaint challenged EPA's
promulgation of 40 CFR 122.3(a), an action the Agency took in 1973. The
Second Cause of Action challenged EPA's September 2003 denial of their
petition to repeal the Sec.  122.3(a) exclusion.
    In March 2005, the Court granted summary judgment to the
plaintiffs: .


[[Page 34244]]


    The Court DECLARES that EPA's exclusion from NPDES permit
requirements for discharges incidental to the normal operation of a
vessel at 40 CFR 122.3(a) is in excess of the agency's authority
under the Clean Water Act; and ORDERS the EPA to repeal the
regulation.

    After this ruling, the Court granted motions to intervene by the
States of Illinois, New York, Michigan, Minnesota, Pennsylvania, and
Wisconsin (on the side of the plaintiffs) and by the Shipping Industry
Ballast Water Coalition (on the side of the Government).
    Following submission of briefs and oral argument by the original
parties and the intervenors, the Court then issued a final order in
September 2006 providing that:

    The blanket exemption for discharges incidental to the normal
operation of a vessel, contained in 40 CFR 122.3(a), shall be
vacated as of September 30, 2008.

    Because the Government respectfully disagrees with the District
Court's decision, on November 16, 2006, we filed an appeal in the U.S.
Court of Appeals for the Ninth Circuit. Oral argument is expected in
mid-August of 2007.
    Additional material related to the rulemaking petition and the
lawsuit are contained in the docket for this notice.

C. Are there NPDES exemptions relevant to vessel discharges unaffected
by the Court's ruling?

    Although the Court's final order will vacate the NPDES permit
exclusions established by 40 CFR 122.3(a) effective September 30, 2008,
the vacatur would not affect vessel discharges that are specifically
exempt from NPDES permitting under the CWA itself. For example, the CWA
provides in section 502(12)(B) that discharges from vessels (i.e.,
discharges other than those when the vessel is operating in a capacity
other than as a means of transportation) do not constitute the
``discharge of a pollutant'' when such discharges occur beyond the
limit of the three-mile territorial sea.
    Another example of exclusions created by the Act itself can be
found in section 502(6)(A), which excludes from the Act's definition of
``pollutant'' sewage from vessels (including graywater in the case of
commercial vessels operating on the Great Lakes) and discharges
incidental to the normal operation of a vessel of the Armed Forces
within the meaning of the CWA Sec.  312. As a result of this statutory
exclusion from the definition of ``pollutant,'' both of these
discharges would not be subject to CWA section 301's prohibition
against discharge without an NPDES permit. Such discharges instead are
subject to other regulatory schemes, as briefly described below,
specifically tailored by Congress to address those vessel discharges
and that do not use a permitting program for implementation.
    CWA sections 312(a)-(m) regulate sewage from vessels (including
graywater from those commercial vessels operating on the Great Lakes),
utilizing a non-permitting scheme in which EPA sets standards of
performance for marine sanitation devices and is responsible for
approval of State requests for no discharge zones for vessel sewage.
The Coast Guard is responsible for testing and certification of marine
sanitation devices, regulations governing their installation, and
enforcement.
    CWA section 312(n), a provision added to the CWA by the National
Defense Authorization Act for Fiscal Year 1996 (Pub. L. 104-106, sec.
325(b) to (c)(2)) regulates discharges incidental to the normal
operation of a vessel of the Armed Forces. (Vessels of the Armed Forces
which are subject to section 312(n) are defined in 40 CFR 1700.3, which
excludes some vessels operated by the Department of Defense, such as
vessels operated by the Army Corps of Engineers.) That program employs
a three-phase process to establish and implement discharge standards
for certain discharges from Armed Forces vessels. EPA and the
Department of Defense (DOD) first jointly determined the types of
vessel discharges requiring control (as well as those which do not).
EPA promulgated the regulations making such determinations and
identifying those Armed Forces vessel discharges requiring control, and
those which do not, in May 1999 at 40 CFR part 1700. For those
discharges determined to require control, future joint EPA/DOD
rulemakings (Phase 2) will then set standards of performance for
control devices or management practices. Following that, DOD will issue
regulations (Phase 3) specifying the design, construction,
installation, and use of control devices or practices to meet those
standards. In addition, EPA is responsible for approval of state-
requested no discharge zones for discharges incidental to the normal
operation of a vessel under CWA section 312(n)(7).

D. What kinds of dischargers does the current NPDES permitting program
address?

    The main focus of the NPDES permit program has been on the
permitting of stationary municipal and non-municipal (e.g., industrial)
dischargers. As of June 30, 2006, the scope and coverage of the NPDES
program consisted of approximately 549,900 facilities, entities, and
point sources.
    With regard to municipal point sources, publicly owned treatment
works (POTWs) receive primarily domestic sewage from residential and
commercial customers. POTWs will also typically receive and treat
wastewater from industrial facilities (indirect dischargers) connected
to the POTW sewerage system. The types of pollutants treated by a POTW,
therefore, will always include conventional pollutants (BOD5, total
suspended solids (TSS), pH, oil and grease, fecal coliform), and will
include nonconventional and toxic pollutants depending on the unique
characteristics of the commercial and industrial sources discharging to
the POTW.
    Non-municipal sources, which include industrial and commercial
facilities, are unique with respect to the products and processes
present at the facility. Unlike municipal sources, the types of raw
materials, production processes, treatment technologies utilized, and
pollutants discharged at industrial facilities vary widely and are
dependent on the type of industry and specific facility
characteristics. The operations, however, are generally carried out
within a more clearly defined plant area; thus, collection system
considerations are generally much less complex than for POTWs.
Industrial facilities may have discharges of storm water that may be
contaminated through contact with manufacturing activities, or raw
material and product storage. Industrial facilities may also have non-
process wastewater discharges such as non-contact cooling water.
    For more information on how the NPDES program works, see Unit V
(Appendix) of the SUPPLEMENTARY INFORMATION section of this document.
    As the above summary indicates, the main sources traditionally
permitted under the NPDES program, with few exceptions, have two basic
elements in common: (1) They involve fixed, non-mobile, discharge
points that do not frequently transit between receiving waters and (2)
necessary treatment equipment and/or best management practices are
situated, powered, operated, and maintained as part of a larger overall
municipal or industrial facility or operation. Unlike the sources
typically permitted under the NPDES program, vessels engaged in the
transportation of goods or passengers are highly mobile sources which
routinely transit between particular

[[Page 34245]]

waterbodies, States, or countries. As further described in Unit IV of
the SUPPLEMENTARY INFORMATION section of this document, discharges
incidental to the normal operation of vessels also can be subject to
regulation under a variety of other statutes or international treaties.
Additionally, vessels have unique operational constraints related to
space and safety. For example, water that washes onboard during storms
or rough seas must generally be able to be quickly and efficiently
removed in order to protect the lives of crew and passengers and
prevent the risk of sinking (and associated environmental harm).
Commercial vessels are subject to highly technical and class-specific
technical standards in relation to their design, construction and
maintenance. See e.g., International Convention for the Safety of Life
at Sea (``SOLAS'') Chapter II-1, Regulation 3-1; see also, 33 CFR part
183 (non-commercial boats). Any pollution control equipment installed
on a vessel needs to be capable of reliable and safe operation when
exposed to the rigors of the marine and aquatic environment, and will
be operated and maintained while at sea by the ship's ordinary crew.
Because the Agency has little practical experience in permitting
vessels, we are seeking early public input from the public to assist us
in the development of such an NPDES permitting program.

III. Request for Public Input and Comment

A. What kind of vessel permitting issues is the Agency seeking public
comment on?

    We welcome public comment and input on all technical and
programmatic issues which the public believes warrant our consideration
in developing an NPDES permitting program appropriate to discharges
incidental to the normal operation of vessels. We are primarily
interested in obtaining existing information on discharges incidental
to the normal operation of a vessel. This is because, unless
invalidated by the Ninth Circuit Court of Appeals, the Northern
District of California's order will vacate the current regulatory
exclusion at 40 CFR 122.3(a) as of September 30, 2008. Such a time
constraint renders impractical creation of substantial new information
or extensive new analyses in time to be useful to EPA's efforts to have
appropriate permits in place by that date. The Agency is already
coordinating with its Federal partners and has initiated work to
collect such existing information. Today's notice is intended to ensure
we obtain early public input as well.
    While we welcome information and comments on all matters related to
NPDES permitting of discharges incidental to the normal operation of
vessels, we would especially appreciate public input on the following
matters.
    (1) What existing public and private data sources are available for
use in identifying, categorizing, and describing the numbers and
various types of commercial and recreational vessels currently
operating in waters of the U.S. and that may have discharges incidental
to their normal operation? Desirable information 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 together with supporting citations to the
underlying source. This information would be useful to the Agency in
identifying and categorizing the universe of vessels it may need to
address in establishing an NPDES vessel permitting program.
    (2) What is the best way to inform vessel owners of the need to
obtain NPDES permit coverage and what existing public and private data
sources are available that will assist in identifying vessel owners and
operators? Desirable information under this category would include
suggestions on how to best ensure vessel owners are made aware of the
upcoming need to obtain NPDES permits for discharges incidental to the
normal operation of their vessels. In addition, citations to databases
or registries from which the ownership or operational responsibility
(and related addresses and points of contact) can be obtained as to
vessels operating in U.S. waters would also be helpful. This
information would be useful to the Agency in identifying and contacting
those who would potentially need to obtain NPDES permit(s). Information
or suggestions on how to obtain this information for foreign flagged or
owned vessels would be especially useful.
    (3) What existing public and private data sources are available
that identify the types of normal operations onboard commercial and
recreational vessels that give rise to discharges and the
characteristics of such discharges? Desirable information under this
category would include information on the operations or equipment
giving rise to discharges incidental to the normal operation of
vessels, any operational constraints (e.g., safety concerns) relevant
to such discharges, and information on the volumes, discharge rates,
and constituents of such discharges. This information would be useful
to the Agency in identifying and characterizing the types of
wastestreams and pollutants that may be subject to NPDES permitting.
    (4) What existing information is available as to potential
environmental impacts of discharges incidental to the normal operation
of vessels? Desirable information under this category would include
information on the nature, significance, and duration of effects that
might result from any particular discharge incidental to the normal
operation of a vessel, and how such effects are/are not controlled by
existing regulatory controls, standards, guidance, or vessel
operational practices. Where possible, this should include information
as to whether particular categories or types of vessels would be
associated with the particular discharge being described. This
information would be useful to the Agency in setting priorities as to
which discharges incidental to the normal operation of a vessel might
be a priority for NPDES permitting as well as being useful in
identifying such discharges or vessel types that might be of little or
no environmental concern (e.g., de minimis discharges).
    (5) What international, federal, and state limitations or controls
already exist on discharges incidental to the normal operation of
vessels? Some illustrative examples of relevant statutes and treaties
are briefly summarized in Unit IV of the SUPPLEMENTARY INFORMATION
section of this document, and additional details or information on
these and other relevant regulatory regimes would be welcome. Desirable
information under this category also would include descriptions of the
types of vessels and/or discharges covered, the geographic scope of
such limitations, and the specific nature of these limitations.
Suggestions as to how to best integrate any such applicable
international or domestic requirements with NPDES permitting
considerations would also be desirable. This information would be
useful to the Agency as it determines how best to minimize duplication
or inconsistencies with other applicable regulatory regimes.
    (6) What existing information is available on the types of
pollution control equipment or best management practices currently used
(or in active development), and what, if any, are the practical
limitations on their use? Desirable information under this category
would include descriptions of the equipment or management practices,
the types of incidental discharges they are designed to control, costs,

[[Page 34246]]

performance of the equipment or management practices, methods of
operation and any limitations on their use with regard to vessel size,
treatment volume or flow rates, power requirements, crew training
needs, or safety concerns. We are interested in obtaining such
information not only with regard to currently available equipment or
management practices, but also for state-of-the-art equipment or
practices, including those that are still in the prototype or
developmental stage. In considering this question, readers are invited
to refer to the discussion of NPDES technology-based effluent
limitations presented in Unit V.C.1 (Appendix) of the SUPPLEMENTARY
INFORMATION section of this document. This information would be useful
to the Agency as it determines what technology-based limitations might
be appropriate for inclusion in NPDES permits.
    (7) What existing information is available as to commercial and
recreational vessel traffic patterns? Desirable information under this
category would include descriptions of the nature of voyages (e.g.,
domestic versus international), volume of vessel traffic by port or
waterways, and distributions of commercial or recreational vessels by
State and/or harbors. This information would be useful to the Agency in
order to identify the most significant ports or waterbodies for
purposes of considering receiving water characteristics and
determination of what water quality-based limitations might be
appropriate for inclusion in NPDES permits. This information also would
be useful as the Agency considers how best to take in to account the
varying water quality standards that would apply from State-to-State or
potentially between waterbodies within a given State.

IV. Selected Examples of Other Regulatory Schemes Addressing Discharges
Incidental to the Normal Operation of Vessels

A. What is the International Convention for the Prevention of Pollution
from Ships?

    The United States is a party to the 1973 ``International Convention
for the Prevention of Pollution from Ships,'' as supplemented by a 1978
Protocol. (``MARPOL 73/78''). MARPOL 73/78 addresses a range of
operational discharges from vessels, as set out in its six Annexes. The
U.S. is a party to Annexes I, II, III, and V of MARPOL 73/78 and is
signatory to, but has not yet ratified, Annex VI (air emissions from
ships). The U.S. is not a signatory to Annex IV, which primarily
addresses sewage from vessels (sewage from vessels is instead regulated
in the U.S. under CWA section 312, as described in Unit II.C of the
SUPPLEMENTARY INFORMATION section of this document). Annexes I, II, and
V of MARPOL 73/78 are implemented in the United Sates by the Act to
Prevent Pollution from Ships (``APPS''), 33 U.S.C. 1901 et seq. APPS
assigns the Coast Guard, not EPA, primary responsibility to prescribe
and enforce regulations implementing those Annexes of MARPOL 73/78. 33
U.S.C. 1903. The United States is also a party to Annex III of MARPOL
73/78, which is implemented in the United States under authority of the
Hazardous Materials Transportation Authorization Act of 1994, as
amended. 49 U.S.C. 5901 et seq. That Annex also is implemented by
regulations issued by the Secretary of Transportation.
    The following table summarizes the subject matter of the MARPOL 73/
78 Annexes to which the U.S is a party and identifies the principal
implementing regulations.

------------------------------------------------------------------------
                                                           Principal
       MARPOL 73/78 annex           Subject matter       implementing
                                                          regulations
------------------------------------------------------------------------
I...............................  Oil...............  33 CFR parts 151,
                                                       155, 156, 157.
II..............................  Noxious Liquid      33 CFR part 151.
                                   Substances (NLS).
III.............................  Harmful substances  46 CFR part 148
                                   in packaged form.  49 CFR part 176
V...............................  Garbage...........  33 CFR part 151.
------------------------------------------------------------------------

B. What is the Nonindigenous Aquatic Nuisance Prevention and Control
Act of 1990, as amended by the National Invasive Species Act of 1996,
16 U.S.C. 4701 et seq.?

    In 1990, Congress enacted the Nonindigenous Aquatic Nuisance
Prevention and Control Act (``NANPCA'') to focus federal efforts on
non-indigenous, aquatic nuisance species, including measures to address
their potential introduction via ships' ballast water discharges.
NANPCA's purposes include prevention of the introduction and dispersal
of nonindigenous species into U.S. waters through ballast water
management and other requirements and the development and
implementation of environmentally sound control methods to prevent,
monitor and control unintentional introductions of nonindigenous
species from pathways other than ballast water exchange. 16 U.S.C.
4701(b)(1) and (4). NANPCA authorizes the Coast Guard to develop
regulations for a mandatory ballast water management (BWM) program for
the Great Lakes and the Hudson River, and USCG regulations implementing
that directive appear in 33 CFR part 151, subpart C.
    Those regulations require that vessels carrying ballast water, and
that enter the Great Lakes or the Hudson River north of the George
Washington Bridge after operating in waters beyond the U.S. Exclusive
Economic Zone (EEZ), manage their ballast water by one of three
methods: (1) Conduct mid-ocean ballast water exchange; (2) retain their
ballast water on board; or (3) use a Coast Guard-approved alternative
treatment method. 33 CFR 151.1510(a). The Coast Guard also has issued
voluntary guidelines to address the potential introduction of invasive
species by vessels entering the Great Lakes that have declared ``no
ballast on board'' (NOBOB). 70 FR 51831, August 31, 2005.
    Congress re-authorized and amended NANPCA with the National
Invasive Species Act of 1996 (NISA), in which Congress directed the
Coast Guard to issue voluntary guidelines to prevent the introduction
and spread of non-indigenous species in all other waters of the United
States by ballast water operations and other operations of vessels
equipped with ballast water tanks. NISA further provided that if the
Coast Guard determined that the rate of effective compliance was
inadequate or could not be determined, it would issue regulations
converting the voluntary program into mandatory, enforceable
requirements. The Coast Guard made such a determination in June 2002,
and issued final regulations requiring mandatory ballast water
management practices for all vessels equipped with ballast water tanks
bound for ports or places within the U.S. or entering U.S. waters. 33
CFR 151, subpart D (69 FR 44952, July 28, 2004). Those regulations do
not change the previously described

[[Page 34247]]

mandatory ballast water management requirements under part 151 subpart
D applicable to vessels entering the Great Lakes.
    Subject to certain specified voyage or safety constraints (33 CFR
151.2037), under these subpart D national regulations, vessels with
ballast water entering U.S. ports or waters after operating beyond the
EEZ must manage their ballast water by mid-ocean exchange, use of a
Coast Guard-approved treatment alternative, or retain their ballast on
board. 33 CFR 151.2035(b). In addition, those regulations require
vessels that operate in U.S. waters and which are equipped with ballast
water tanks to undertake other mandatory practices with regard to their
ballast water and other potential vessel-related pathways for invasive
species introductions, regardless of whether they have operated beyond
the EEZ. 33 CFR 151.2035(a).
    Additional information on NANPCA/NISA and their implementation can
be found by visiting this USCG Web site: https://www.uscg.mil/hq/g-m/mso/estandards.htm
.


C. What is the February 2004 International Convention for the Control
and Management of Ships' Ballast Water and Sediment?

    Although not yet in force, in February 2004 a treaty (``The
International Convention for the Control and Management of Ships'
Ballast Water and Sediments'') intended to prevent the introduction and
spread of harmful aquatic organisms carried by ships' ballast water and
sediments was adopted at an international diplomatic conference held at
the International Maritime Organization (IMO). The IMO is the United
Nations agency responsible for the safety and security of shipping and
the prevention of marine pollution from ships. The United States,
through a delegation led by the USCG and with active EPA participation,
substantially contributed to the development; basic structure, and
drafting of that Convention. The Convention will enter into force 12
months after ratification by 30 States, representing 35 per cent of
world merchant shipping tonnage (Article 18). As of May 1, 2007, eight
countries representing 3.21% of the world tonnage have become
contracting parties to the Convention.
    In essence, the Convention applies to ships (other than warships)
designed or constructed to carry ballast water and which engage in
international voyages (Article 3). Ships subject to the Convention will
be required to implement a Ballast Water and Sediment Management Plan
and carry out ballast water management according to the Convention
(Regulations A-2 and B-1). One of the hallmarks of the Convention is
the gradual replacement of ballast water management based on ballast
water exchange with an approach that instead mandates ballast water
discharges comply with a performance standard limiting the
concentrations of organisms that may be discharged (Regulations B-3, B-
4, and D-2). In the case of certain recreational or search and rescue
craft that carry ballast water, the Convention allows for the use of
equivalent compliance measures as determined by guidelines developed
under the Convention (Regulation A-5). The Convention also recognizes
the right of port States to establish more stringent measures to
control the introduction of harmful aquatic organisms and pathogens via
ships' ballast water or sediments (Regulation C-1).
    In order to allow time for the development and commercial
availability of the ballast water treatment equipment necessary for
compliance with the Convention's ballast water discharge standard,
Regulation B-3 phases in the applicability of that standard over a
timeframe of 2009-2016, depending upon a combination of the ship's
construction date and its ballast water capacity. In addition, under
Regulation D-5 of the Convention, reviews are undertaken to determine
whether appropriate technologies are available to timely achieve the
discharge standard, with the next such review scheduled to take place
at the 56th meeting of the IMO's Marine Environment Protection
Committee in July 2007. To date, no ballast water treatment systems
have received final approval for use under Regulation D-3 of the
Convention. Additional information on the Convention can be found on-
line at: https://www.imo.org/home.asp.


V. Appendix: Background on NPDES Permitting Program

A. What are the basic kinds of NPDES permits?

    An NPDES permit authorizes the discharge of a specified amount of a
pollutant or pollutants into a receiving water under certain
conditions. The two basic types of NPDES permits that can be issued are
individual and general permits. Typically, dischargers seeking coverage
under a general permit are required to submit a notice of intent to be
covered by the permit. See, 40 CFR 122.28(b)(2).
    An individual permit is a permit specifically tailored for an
individual discharger. Upon submitting the appropriate application(s),
the permitting authority develops a draft permit for public comment for
that particular discharger based on the information contained in the
permit application (e.g., type of activity, nature of discharge,
receiving water quality). Following consideration of public comments, a
final permit may then be issued to the discharger for a specific time
period (not to exceed 5 years) with a requirement to reapply prior to
the expiration date.
    A general permit also is subject to public comment and is developed
and issued by a permitting authority to cover multiple facilities
within a specific category for a specific period of time (not to exceed
5 years), after which they must be re-issued. Under 40 CFR 122.28,
general permits may be written to cover categories of point sources
having common elements, such as facilities that involve the same or
substantially similar types of operations, that discharge the same
types of wastes, or that are more appropriately regulated by a general
permit.
    The use of general permits allows the permitting authority to
allocate resources in a more efficient manner and to provide more
timely permit coverage. For example, a large number of facilities that
have certain elements in common may be covered under a general permit
without expending the time and resources necessary to issue an
individual permit to each of these facilities. Because of the
potentially massive number of vessels, the variety in their waste
streams, and the short timeframe under which they could become subject
to NPDES permitting under the Court's September 2006 order, use of
general permit(s) would appear to be an attractive possibility.
However, as described in Unit V.C.1 (Appendix) of the SUPPLEMENTARY
INFORMATION section of this document, general permits still need to
contain technology-based effluent limits, as well as any more stringent
limits when necessary to meet State water quality standards or the CWA
section 403 ocean discharge guidelines.

B. Who is responsible for issuing NPDES permits?

    EPA is authorized under section 402(a)(1) of the CWA to issue NPDES
permits. Under section 402(b) EPA may approve States, Territories, or
Tribes to implement all or parts of the national NPDES permit program.
States, Territories, or Tribes applying for such approval may seek the
authority to

[[Page 34248]]

implement the base program (i.e., issue NPDES permits for industrial
and municipal sources), and may seek approval to implement other parts
of the national program. If the State entity seeking authorization does
not have authority to operate parts of the NPDES program, EPA will
implement the other program activities. Currently, 45 states, and the
U.S. Virgin Islands, are authorized to administer the base NPDES
program.
    In general, once a State, Territory, or Tribe is authorized to
issue NPDES permits, EPA is prohibited from issuing permits as to those
discharges subject to the authorized state program, in which case
State-issued NPDES permits would be needed for such discharges within
those States' waters. CWA section 402(c). Under the NPDES program,
State permitting authorities may charge fees for permit processing.
Under CWA section 402(d), EPA generally must be provided with an
opportunity to review draft permits prepared by the State, Territory,
or Tribe and may formally object to the permit or elements of it that
conflict with CWA requirements. If the permitting agency does not
address EPA's objection points, EPA assumes the authority to issue the
permit directly. Once a State issues a permit, it is enforceable by the
authorized State, Territorial, and Federal agencies (including EPA)
with legal authority to implement and enforce the permit, and by
private citizens (in Federal court).

C. How are NPDES permit limits established?

    When developing effluent limits for a NPDES permit, a permit writer
must consider limits based on both the technology available to treat
the pollutants (i.e., technology-based effluent limits), and limits
that are protective of the designated uses of the receiving water
(water quality-based effluent limits). Development of NPDES permits
involves complex legal, factual, and technical issues, and the
following general overview of some of the relevant considerations is
provided for the convenience of readers who may be unfamiliar with
NPDES permitting. Additional information can be found on-line at https://cfpub.epa.gov/npdes/
, and readers interested in more information on

how NPDES permits are developed can refer to the NPDES Permit Writers
Manual (EPA 833-B-96-003), which is available in the docket for today's
notice.
1. Technology-Based Limitations
    The intent of a technology-based effluent limitation is to require
a minimum level of treatment for industrial/municipal point sources
based on currently available treatment technologies while allowing the
discharger to use any available control technique to meet the
limitations. The statutory deadlines specified by CWA section 301(b)
for compliance with the Act's technology-based effluent limitations
have passed (the latest such date was March 31, 1989). Because permit
writers do not have the authority to extend the statutory deadlines in
an NPDES permit, all applicable technology-based requirements are
applied in NPDES permits without the use of a compliance schedule.
    There are two general approaches for developing technology-based
effluent limits for industrial facilities. The first of these involves
using national effluent limitations guidelines (ELGs). The development
of legally defensible effluent guidelines is an extremely complex
process that requires the preparation of detailed engineering, economic
and environmental analyses typically taking many years to accomplish.
Because there are no existing ELGs applicable to discharges incidental
to the normal operation of vessels, and the Court's order would
potentially result in such discharges becoming subject to NPDES
permitting as of September 30, 2008, as a practical matter, ELGs to
establish technology-based permit limits for discharges incidental to
the normal operation of vessels would not be available at that time.
    The second approach, used in the absence of ELGs, employs Best
Professional Judgment (BPJ) to set technology-based limits on a case-
by-case basis. The authority for development of BPJ permit limits is
contained in CWA section 402(a)(1), which authorizes EPA to issue
permits containing ``such conditions as the Administrator determines
are necessary to carry out the provisions of this Act'' prior to taking
the necessary implementing actions, such as the establishment of ELGs.
40 CFR 125.3(c)(2) provides that in setting limitations based on BPJ,
the permit writer must include consideration of the factors listed in
40 CFR 125.3(d), which are the same as those required to be considered
by EPA in the development of ELGs. For example, under the CWA, non-
conventional pollutants (e.g., oil, metals, solvents) are subject to
the ``best available technology'' (BAT) standard, and the factors
contained in 40 CFR 125.3(d)(3) for development of such limits on a BPJ
basis are:
     The age of equipment and facilities involved.
     The process employed.
     The engineering aspects of the application of various
types of control techniques.
     Process changes.
     The cost of achieving such effluent reduction.
     Non-water quality environmental impact, including energy
requirements.
2. Water Quality-Based Effluent Limitations
    In order to protect the quality of the receiving water, permits
also may need to include water quality-based effluent limits (WQBELs)
to ensure compliance with applicable State water quality standards.
Under section 303(c) of the CWA, States are required to develop water
quality standards applicable to all water bodies or segments of water
bodies that lie within the State. Once those standards are developed,
EPA must approve or disapprove them. Water quality standards under the
CWA are composed of three parts:
     Use classifications--The first part of a State's water
quality standard consists of classification of the water bodies within
the State's jurisdiction based on the expected beneficial uses of the
particular waterbody. The CWA describes various uses of waters that are
considered desirable and should be protected. These uses include public
water supply, recreation, and propagation of fish and wildlife. The
States are free to designate more specific uses (e.g., cold water
aquatic life, agricultural), or to designate uses not mentioned in the
CWA, with the exception of waste transport and assimilation, which is
not an acceptable designated use (see 40 CFR 131.10(a)).
     Numeric and/or narrative water quality criteria--The
second part of a State's water quality standard consists of the water
quality criteria deemed necessary to support the designated uses of
each water body. Sections 303(a)-(c) of the CWA require States to adopt
criteria sufficient to protect designated uses for State waters. These
criteria may be numeric or narrative. For certain toxic pollutants, the
CWA requires States to adopt numeric criteria where they are necessary
to protect designated uses. All States have adopted narrative criteria
to supplement numeric criteria for toxicants. Narrative criteria are
statements that describe the desired water quality goal (e.g., ``no
toxics in toxic amounts'') and can be the basis for limiting specific
pollutants for which the State has no numeric criteria, or to limit
discharge toxicity where the toxicity cannot be traced to a specific
pollutant.
     Antidegradation policy--Finally, each State is required to
adopt an

[[Page 34249]]

antidegradation policy and to identify the methods it will use for
implementing that policy. As more specifically discussed in 40 CFR
131.12, antidegradation policies provide three tiers of protection from
degradation of water quality, with maintenance of existing instream
water uses and the level of water quality necessary to protect existing
uses (``Tier 1'') being the absolute floor of water quality for all
waters of the United States.
    Under 40 CFR 122.44(d), all effluents must be characterized by the
permitting authority to determine the need for WQBELs. If, after
technology-based limits are applied, the permit writer projects that a
point source discharger may exceed an applicable criterion, a WQBEL
will be included in the permit. WQBELs are designed to protect the
quality of the specific water body that receives the discharge by
ensuring that the State water quality standards applicable to that
particular water body are met. When determining whether WQBELs are
needed, the permit writer considers, at a minimum: (1) Existing
controls on point and nonpoint sources of pollution; (2) the
variability of the pollutant or pollutant parameter in the effluent;
(3) the sensitivity of the species to toxicity testing; and (4) where
appropriate, the dilution of the effluent in the receiving water (40
CFR 122.44(d)(ii)). EPA-issued NPDES permits are subject to
certification by the State under section 401 of the CWA as to
compliance with State water quality standards and appropriate
requirements of State law, and such permits will incorporate
requirements as specified in the State's 401 certification. 40 CFR
124.53 and 124.55. In addition, EPA-issued permits are subject to
evaluation for consistency with the enforceable policies of approved
state coastal zone management programs under the Coastal Zone
Management Act. See, 16 U.S.C. 1456(c).
3. Other CWA Provisions Relevant to Establishing NPDES Permit Limits
    Section 403(a) of the CWA prohibits the issuance of NPDES permits
for discharges into the waters of the territorial sea, contiguous zone,
or oceans except in compliance with guidelines promulgated under
section 403(c) of the Act. Those guidelines are contained in Agency
regulations at 40 CFR part 125, subpart M, commonly referred to as the
Ocean Discharge Criteria and are used for determining unreasonable
degradation of the marine environment, specifying factors to be
considered in making that determination. In addition to terms and
limitations based on the Act's technology and water quality standards
requirements, NPDES permits that are subject to the Ocean Discharge
Criteria will, if necessary, contain conditions or limitations to avoid
unreasonable degradation of the marine environment.
    Under CWA section 402(g), NPDES permits for the discharge of
pollutants into the navigable waters from a vessel or other floating
craft are subject to any applicable USCG regulations establishing
specifications for safe transportation, handling, carriage, storage,
and stowage of pollutants. NPDES permits that are subject to this
requirement will contain a condition that the discharge shall comply
with any such applicable USCG regulations. 40 CFR 122.44(p).

    Dated: June 14, 2007.
Benjamin H. Grumbles,
Assistant Administrator for Water.
[FR Doc. E7-12022 Filed 6-20-07; 8:45 am]

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