Marine Sanitation Devices (MSDs): Proposed Regulation To Establish a No Discharge Zone (NDZ) for California State Marine Waters, 53914-53925 [2010-21950]
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53914
Calibration
12.0
Calculations and Data Analysis
12.1
Nomenclature
ACE = Analyzer calibration error, percent of
calibration span.
BWO = Fraction of volume of water vapor in
the gas stream.
CD = Calibration drift, percent.
CDir = Measured concentration of a
calibration gas (low, mid, or high) when
introduced in direct calibration mode,
ppmv.
CH2S = Concentration of the system
performance check gas, ppmv H2S.
CS = Measured concentration of the system
performance gas when introduced in
system calibration mode, ppmv H2S.
CV = Manufacturer certified concentration of
a calibration gas (low, mid, or high),
ppmv SO2.
CSO2 = Sample SO2 concentration, ppmv.
CTRS = Total reduced sulfur concentration
corrected for system performance and
adjusted to dry conditions, ppmv.
SP = System performance, percent.
12.2 Analyzer Calibration Error. Use
Equation 16C–1 to calculate the analyzer
calibration error for the low-, mid-, and highlevel calibration gases.
ACE =
CDir − Cv
× 100
Cv
Eq. 16C-1
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12.3 System Performance. Use Equation
16C–2 to calculate the system performance.
SP =
CS − CH2S
× 100
CH2S
Eq. 16C- 2
12.5 TRS Concentration as SO2. For each
sample or test run, calculate the arithmetic
average of SO2 concentration values (e.g., 1minute averages). Then calculate the sample
TRS concentration using Equation 16C–4.
15:15 Sep 01, 2010
CTRS
13.0
Eq. 16C-4
Method Performance
13.1 Analyzer Calibration Error. At each
calibration gas level (low, mid, and high), the
calibration error must either not exceed 5.0
percent of the calibration gas concentration
or |Cs¥Cv| must be ≤ 0.5 ppmv.
13.2 System Performance. The system
performance check result must be within 20
percent of the system performance gas
concentration. Alternatively, the results are
acceptable if |Cs¥Cdir| is ≤ 0.5 ppmv .
13.3 Calibration Drift. The calibration
drift at the end of any run or series of runs
within a 24-hour period must not differ by
more than 3 percent from the original ACE
at that level or |ACEi¥ACEn| must not exceed
0.5 ppmv.
13.4 Interference Check. For the analyzer,
the total interference response (i.e., the sum
of the interference responses of all tested
gaseous components) must not be greater
than 2.50 percent of the calibration span. The
results are also acceptable if the sum of the
responses does not exceed 0.5 ppmv for a
calibration span of 5 to 10 ppmv, or 0.2 ppmv
for a calibration span < 5 ppmv.
14.0
Pollution Prevention [Reserved]
15.0
Waste Management [Reserved]
16.0
References
1. The references are the same as in Section
16.0 of Method 16, Section 17.0 of Method
16A, and Section 17.0 of Method 6C.
2. National Council of the Paper Industry
for Air and Stream Improvement, Inc., A
Study of TRS Measurement Methods.
Technical Bulletin No. 434. New York, NY.
May 1984. 12p.
3. Margeson, J.H., J.E. Knoll, and M.R.
Midgett. A Manual Method for TRS
Determination. Draft available from the
authors. Source Branch, Quality Assurance
Division, U.S. Environmental Protection
Agency, Research Triangle Park, NC 27711.
17.0 Tables, Diagrams, Flowcharts, and
Validation Data [Reserved]
[FR Doc. 2010–21954 Filed 9–1–10; 8:45 am]
BILLING CODE 6560–50–P
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40 CFR Part 140
[EPA–R09–OW–2010–0438; FRL–9196–3]
RIN 2009–AA04
CSO2
=
1− SP − BWO
12.4 Calibration Drift. Use Equation 16C–
3 to calculate the calibration drift at a single
concentration level after a run or series of
runs (not to exceed a 24-hr period) from
initial calibration. Compare the calibration
gas response to the original response
obtained for the gas in the initial analyzer
calibration test (ACEi).
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ENVIRONMENTAL PROTECTION
AGENCY
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Marine Sanitation Devices (MSDs):
Proposed Regulation To Establish a
No Discharge Zone (NDZ) for California
State Marine Waters
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to establish
a No Discharge Zone (NDZ) for sewage
discharges from: Large passenger
vessels; and oceangoing vessels of 300
gross tons or more (referred to
throughout this proposed rule as ‘‘Large
oceangoing vessels’’) with two days or
more sewage holding capacity to
California State marine waters pursuant
to Section 312(f)(4)(A) of the Clean
Water Act (CWA), 33 U.S.C.
1322(f)(4)(A). This action is being taken
in response to an April 5, 2006
application from the California State
Water Resources Control Board (State)
requesting establishment of this NDZ.
Under Section 312(f)(4)(A), if EPA
determines upon application by a State
that the protection and enhancement of
the quality of specified waters within
such State requires such a prohibition,
then EPA shall by regulation completely
prohibit the discharge of any sewage
(whether treated or not) from a vessel
into such waters. California State
marine waters would be defined as the
territorial sea measured from the
baseline, as determined in accordance
with the Convention on the Territorial
Sea and the Contiguous Zone, and
extending seaward a distance of three
miles, and would also include all
enclosed bays and estuaries subject to
tidal influences from the Oregon border
to the Mexican border. (Federal Clean
Water Act Section 502(8)). State marine
waters also extend three miles from
State islands, including the Farallones
and the Northern and Southern Channel
Islands. A map of California State
marine waters can be obtained or
viewed at the EPA’s Web site at
https://www.epa.gov/region9/water/nodischarge/overview.html, or by calling
(415) 972–3476. It should be noted that
effective March 2009, the National
Oceanic and Atmospheric
Administration (NOAA) established
prohibitions on the discharge of sewage
from large vessels in waters within the
boundaries of the four National Marine
SUMMARY:
E:\FR\FM\02SEP1.SGM
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EP02SE10.011</MATH>
Analytical Procedure
Because sample collection and analysis are
performed together (see Section 8.0),
additional discussion of the analytical
procedure is not necessary.
Eq. 16C-3
EP02SE10.010</MATH>
11.0
CD = ACEi − ACEn
EP02SE10.009</MATH>
10.1 Calibrate the system using the gases
described in Section 7.3. The initial 3-point
calibration error test as described in Section
8.1.2 is required and must meet the
specifications in Section 13 before you start
the test. We recommend you conduct an
initial system performance test described in
Section 8.1.4 as well before the test to
validate the sampling components and
procedures before sampling. After the test
commences, a system performance check is
required after each run. You must include a
copy of the manufacturer’s certification of the
calibration gases used in the testing as part
of the test report. This certification must
include the 13 documentation requirements
in the EPA Traceability Protocol for Assay
and Certification of Gaseous Calibration
Standards, September 1997, as amended
August 25, 1999.
EP02SE10.008</MATH>
10.0
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Federal Register / Vol. 75, No. 170 / Thursday, September 2, 2010 / Proposed Rules
Sanctuaries along the California coast
(73 FR 70487).
DATES: Comments must be submitted to
EPA on or before November 1, 2010.
ADDRESSES: Submit comments,
identified by docket number EPA–R09–
OW–2010–0438, by one of the following
methods: 1. Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
on-line instructions. 2. E-mail:
ota.allan@epa.gov. 3. Mail or deliver:
Allan Ota (WTR–8), U.S. Environmental
Protection Agency Region IX, 75
Hawthorne Street, San Francisco, CA
94105–3901.
Instructions: All comments 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
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Information that
you consider CBI or otherwise protected
should be clearly identified as such and
should not be submitted through
https://www.regulations.gov or e-mail.
https://www.regulations.gov is an
‘‘anonymous access’’ system, and EPA
will not know your identity or contact
information unless you provide it in the
body of your comment. If you send email directly to EPA, your e-mail
address will be automatically captured
and included as part of the public
comment. 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.
Docket: The index to the docket for
this action is available electronically at
https://www.regulations.gov and in hard
copy at EPA Region IX, 75 Hawthorne
Street, San Francisco, California. While
all documents in the docket are listed in
the index, some information may be
publicly available only at the hard copy
location (e.g., copyrighted material), and
some may not be publicly available in
either location (e.g., CBI). To inspect the
hard copy materials, please schedule an
appointment during normal business
hours with the contact listed in the FOR
FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT:
Allan Ota, Wetlands Office, Water
Division, EPA Region 9, 75 Hawthorne
Street (WTR–8), San Francisco, CA
94105, (ota.allan@epa.gov).
SUPPLEMENTARY INFORMATION:
I. Background of Clean Water Act
Section 312
Clean Water Act Section 312, 33
U.S.C. 1322, (hereafter referred to as
‘‘Section 312’’), regulates the discharge
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of sewage from vessels into the
navigable waters. Pollutants most
frequently associated with sewage
discharges include solids, nutrients,
pathogens, petroleum products, heavy
metals, pesticides, pharmaceuticals, and
other potentially harmful compounds.1
Sewage discharges contaminate
shellfish beds, pollute drinking water
supplies, harm fish and other aquatic
wildlife, and cause damage to coral
reefs.
Direct contact with these pollutants
can have serious human health effects,
with children, the elderly, and
individuals with compromised immune
systems being most susceptible. While
data specifically associating disease
outbreaks with sewage discharges from
vessels are not available, data
summarizing disease outbreaks and
beach closures due to waterborne
pathogens are available. During 2005–
2006, the most recent period for which
data are available, waterborne disease
outbreaks associated with pathogen
exposures in recreational water were
reported by 31 States and territories
through the Centers for Disease
Control’s Waterborne Disease and
Outbreak Surveillance System.2 During
this period, 4,412 people were reported
ill, resulting in 116 hospitalizations and
five deaths. Thirty of these outbreaks
were reported in California.3 These data
include exposures to pathogens at
beaches and other natural swimming
locations, but pathogen sources were
not specifically identified.
When pathogen levels exceed water
quality standards, States and territories
may issue swimming advisories or close
beaches to swimming. EPA’s Beach
Monitoring and Notification program
reports that of the 3,740 coastal beaches
monitored in 2008, 1,210 (32 percent)
had at least one swimming closure or
advisory and coastal beaches were
under swimming closures or advisories
about 5 percent of the time, similar to
the previous two years. For 2007, the
last year for which data was available,
138 of the 424 monitored beaches in
California had at least one water quality
advisory due to water quality standard
exceedances.4 According to the State’s
California Beach Water Quality
Information Page in 2005, the last year
reported, there were 104 beach closure
1 Page
33 of the April 5, 2006 State Application/
et al., 2008, Surveillance for Waterborne
Disease and Outbreaks Associated with
Recreational Water Use and Other Aquatic FacilityAssociated Health Events—United States, 2005–
2006. Centers for Disease Control, Surveillance
Summaries, 57(SS09), September 12, 2008.
3 Yoder, et al., 2008.
4 EPA, 2009, National Summary: 2008 Swimming
Season Update. EPA 823–F–09–005, May 2009.
2 Yoder,
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53915
events for a total of 486 beach days
because monitoring indicated elevated
bacteria levels.5
Shellfish beds are also vulnerable to
coastal pollutants resulting in closures
when water quality standards are
exceeded. In 2001, the last
comprehensive national study of water
quality data at shellfish beds revealed
that 40 percent were unsuitable for
harvesting.6 Pathogens from a variety of
sources, including urban and
agricultural runoff, vessel discharges,
sewage treatment plants and septic
systems can contribute to shellfish bed
contamination, closure, and illness in
human shellfish consumers.7
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 marine sanitation device
(MSD), certified by the Coast Guard to
meet applicable performance standards.
33 U.S.C. 1322(h). The provisions of
section 312 are implemented jointly by
EPA and the Coast Guard. EPA sets
performance standards for MSDs and is
involved in varying degrees 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
performance standards. 33 U.S.C.
1322(b) and (g); see also 33 CFR part
159. The Coast Guard’s responsibility
includes certifying MSDs for installation
on U.S. flagged vessels. There are three
types of MSDs:
• 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
more than 1000 fecal coliform count per
100 mL, with no visible floating solids.
• 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
5 State Water Resources Control Board, California
Beach Water Quality Information page: https://
www.swrcb.ca.gov/water_issues/programs/beaches/
beach_water_quality/.
6 EPA, 2001. National Coastal Condition Report.
United States Environmental Protection Agency.
Office of Research and Development and Office of
Water, Washington, DC EPA–620/R–01/005.
7 EPA National Estuary Program: https://
www.epa.gov/nep/challenges.html.
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Federal Register / Vol. 75, No. 170 / Thursday, September 2, 2010 / Proposed Rules
length. The performance standard
applied to Type II MSDs is to produce
an effluent with no more than 200 fecal
coliform 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. [33 U.S.C. 1322 (b and h), 40
CFR 140.3; 33 CFR part 159].
CWA section 312 generally preempts
State regulation of the discharge of
sewage from vessels: ‘‘no State or
political subdivision thereof shall adopt
or enforce any statute or regulation of
such State or political subdivision with
respect to the design, manufacture, or
installation or use of any [MSD] on any
vessel subject to the provision of [CWA
section 312].’’ CWA § 312(f)(1)(A), 33
U.S.C. 1322(f)(1)(A). Under Section
312(f), however, States may, in certain
circumstances, request that EPA
establish no discharge zones (‘‘NDZs’’)
for vessel sewage or, after required
findings are made by EPA, establish
such zones themselves.
There are three types of NDZ
designations. First, under section
312(f)(3) States may designate portions
or all of their waters as NDZs if the State
determines that the protection and
enhancement of the quality of the
waters require greater environmental
protection than provided by current
Federal standards. However, no such
prohibition applies to discharges until
EPA determines that adequate facilities
for the safe and sanitary removal and
treatment of sewage from all vessels are
reasonably available for the waters in
the NDZ. Second, a State may apply
under section 312(f)(4)(A) for EPA’s
determination that the protection and
enhancement of the quality of specified
waters within such State requires a
prohibition. In contrast to section
312(f)(3) NDZ designations, section
312(f)(4) does not require EPA to
determine that adequate pump out
facilities are reasonably available for all
vessels. Upon this determination, EPA
shall by regulation completely prohibit
the discharge from a vessel of any
sewage (whether treated or not) into
such waters. Lastly, a State may apply
under section 312(f)(4)(B) for EPA to
establish, by regulation, a drinking
water intake zone which prohibits the
discharge of sewage into that zone. [33
U.S.C. 1322(f), 40 CFR 140.4] California
applied to EPA to establish the
proposed NDZ under CWA section
312(f)(4)(A).
While section 312(f)(3) has been used
to prohibit discharges in an entire
State’s waters, today’s NDZ, if finalized,
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would be the first CWA section
312(f)(4)(A) NDZ to cover an entire
State’s waters. It would also be the first
NDZ to only apply to discrete classes of
vessels. Today’s proposed rule would
apply to all California marine waters
and to two specific types of vessels—(1)
passenger vessels of 300 gross tons or
more having berths or overnight
accommodations, and (2) oceangoing
vessels of 300 gross tons or more with
two days or more of sewage holding
capacity. As discussed in Sections V
and VI of the preamble, the proposed
NDZ will not alter existing NDZs in
California, all of which were enacted
pursuant to 312(f)(3). Those NDZs
remain in effect for all vessels. These
NDZs cover a relatively small portion of
California’s marine waters, although as
discussed below, certain discharges of
sewage are also prohibited under NOAA
regulations for marine sanctuaries in
California waters.
II. Enforcement
The U.S. Coast Guard and the States
are authorized to enforce the
requirements of Section 312. 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. 33 U.S.C. 1322(j). For more
information see 33 U.S.C. 1322(j) and
the U.S. Coast Guard’s regulations at 33
CFR part 159.8
III. The State’s Application for This
NDZ
The State of California declared the
importance of protecting and enhancing
coastal water quality when it enacted
legislation in 2003–2004 to limit
pollution from large passenger vessels
Assembly Bill (AB) 121, AB 906, AB
2093, and AB 2672 (available in the
docket for today’s proposal). The new
legislation required a number of actions
to address and reduce sewage and other
pollution discharges from large vessels.
Specifically, AB 2672 required the State
Water Resources Control Board (State
Board) to submit an application to the
EPA seeking Federal prohibition of
discharges of sewage from large
passenger vessels to State waters.9
8 U.S. Coast Guard MSD Requirements: https://
www.uscg.mil/hq/cg5/cg5213/msd.asp.
9 California State Assembly Bill 2672, Section
1(c).
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Similarly, the State enacted the
California Clean Coast Act of 2005
(Senate Bill (SB) 771) to address and
reduce sewage and other pollution
discharges from large oceangoing
vessels with sufficient holding tank
capacity. SB 771 directed the State
Board to submit an application to the
EPA seeking prohibition of sewage
discharges from large oceangoing
vessels with ‘‘sufficient holding tank
capacity’’ to contain sewage while the
vessels are within the marine waters of
the State. In enacting this legislation,
the State found that California’s coastal
waters warrant a higher level of
protection and determined that
protection and enhancement of coastal
water quality requires a reduction in
vessel sewage discharges to the State’s
coastal waters. The legislation also
provided that ‘‘[i]t is not the
Legislature’s intent to establish for the
marine waters of the State a no
discharge zone for sewage from all
vessels, but only for a class of
vessels.’’ 10
The information submitted by the
State in its application for this NDZ
(available in the docket for today’s
proposal) documents the importance of
California’s marine waters, the
sensitivity of all of California’s marine
waters to sewage discharges, and the
need for the proposed NDZ to protect
and enhance those waters.
IV. Who is affected by this rule?
The proposed rule would completely
prohibit the discharge of sewage
(whether treated or not) from all large
passenger vessels, as defined by 46
U.S.C. 2101(22), of 300 gross tons or
more and which have berths or
overnight accommodations, and private,
commercial, government, and military
oceangoing vessels of 300 gross tons or
more. The State’s definition of large
passenger vessels in AB 2672 excluded
all noncommercial, government and
military vessels, treating them as
‘‘oceangoing ships.’’ For this proposed
rule EPA uses the generally applicable
definition of ‘‘passenger vessel’’ from
Title 46 of the US Code, but, like the
State, applies the rule only to passenger
vessels of 300 gross tons or more and
which have berths or overnight
accommodations. A large oceangoing
vessel means a private, commercial,
government, or military vessel of 300
gross tons or more.
Certain Department of Defense (DoD)
vessels and activities may be exempt
from these requirements. Pursuant to
CWA Section 312(d), the Secretary of
10 California
Senate Bill 771, Chapter 588, Section
21.
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Defense promulgated DoD 4715.06–R1
‘‘Regulations on Vessels Owned or
Operated by the Department of Defense’’
(January 2005), which explains the
circumstances under which DoD may
exempt its vessels from the sewage
discharge requirements of Section 312,
including NDZs, because compliance
would excessively and unreasonably
detract from the vessel’s military
characteristics, effectiveness, or safety,
and not be in the interest of national
security. Exempted vessels are
nonetheless required to limit sewage
discharges into U.S. navigable waters,
territorial seas, and NDZs to the
maximum extent practicable without
endangering the health, safety, or
welfare of the crew or other personnel
aboard.
The State legislation limits the
prohibition on discharges of sewage to
large oceangoing vessels with ‘‘sufficient
holding tank capacity.’’ SB 771 defined
‘‘sufficient holding tank capacity’’ to
mean a holding tank of sufficient
capacity to contain sewage while the
oceangoing ship is within the marine
waters of the State.11 For the purposes
of this proposed rule, ‘‘sufficient holding
tank capacity’’ means two days or more
of sewage holding capacity based on the
ability to hold at least two day’s sewage
while in State marine waters. A suitable
holding tank is a tank that was
designed, constructed, and certified by
the ship’s flag administration to hold
sewage. Two days of sewage holding
capacity is consistent with California
State Lands Commission 2006 Vessel
Survey Data, required under SB 771,
that showed oceangoing vessel port calls
averaged two days in duration.12 The
two day duration was established based
on this data and through consultation
with the State. For purposes of this
proposed rule, the two-day holding tank
capacity would be determined by
multiplying the crew capacity of a
vessel by the average sewage generation
rate of 8.4 gallons of sewage per day, per
person.13 Oceangoing vessel capacity is
determined by: (1) A certificate of
inspection issued by the US Coast
Guard for US flagged vessels; or (2) a
MARPOL Annex 4 certificate issued by
the signatory State for foreign flagged
vessels. For either certificate, the
11 California Senate Bill 771, Chapter 588, Section
6 (72401(a)).
12 California State Lands Commission 2006 Vessel
Survey.
13 EPA’s December 29, 2008 Cruise Ship
Discharge Assessment Report found that average
reported sewage generation rates were 8.4 gallons/
day/person.
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maximum number of passengers and
crew is identified for the vessel.
V. EPA’s Determination That the
Protection and Enhancement of the
Quality of California Coastal Waters
Requires This NDZ
Importance of California Waters:
California’s coastal waters contain a
wide variety of unique, nationally
important marine environments that
support rich biological communities
and a wide range of recreational,
commercial, conservation, research,
educational, and aesthetic values.
Coastal areas contain the greatest variety
of habitats in California, including
tidepools, estuaries, embayments,
headlands, sandy beaches, mudflats,
tidal wetlands, eelgrass beds, kelp
forests, and deep ocean floor.
California’s highly varied marine
environments support high levels of
biological diversity and habitat for
several dozen species listed as
endangered, threatened, or of concern
under Federal or State law, including 10
species of marine mammals, 4 species of
anadromous fish, and 9 species of sea
birds. The State has also established
essential habitat along much of the coast
for nearly 100 species of fish.
The unique values associated with
California’s coastal marine environment
have been recognized through the
creation of a network of more than 200
protected areas, reserves, sanctuaries,
and monuments that together afford
special resource protection status to the
vast majority of California coastal
waters. For example, the four Federally
designated National Marine Sanctuaries
(Cordell Bank, Gulf of the Farallones,
Monterey Bay, and Channel Islands) in
California occupy approximately onethird of the coastline and over 9,373
square miles of marine waters (1,726
within State waters) while the California
Coastal National Monument protects
more than 20,000 small islands, reefs,
and pinnacles. The National Park
Service manages 6 park facilities along
the California coast including the
Channel Islands and Redwood National
Parks and Golden Gate National
Recreation Area. Thirteen national
wildlife refuges and 22 marine reserves
have been established along the
California coast, several of which cover
substantial portions of marine
embayments and estuarine areas. Three
National Estuarine Research Reserves
have been designated under the Coastal
Zone Management Act as a partnership
between the National Oceanic and
Atmospheric Administration (NOAA)
and the State, including San Francisco
Bay; Elkhorn Slough; and Tijuana River.
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NOAA, has also established Essential
Fish Habitat for several species along
the entire California coast. The State has
designated more than 80 Marine
Protected Areas, 34 Areas of Special
Biological Significance—Water Quality
Protection Areas, 14 Ecological
Reserves, 17 State and University of
California Reserves, 20 Marine Refuges,
and 14 Underwater Parks and Preserves
intended to preserve and enhance living
marine resources, cultural and historical
resources, and recreational and research
opportunities. The State, pursuant to
CWA 312(f)(3), previously established
ten individual NDZs along the
California coast. These NDZs were
established after EPA made the
necessary finding that adequate pump
out facilities are reasonably available in
the areas of the NDZs.
Following establishment of the four
federally recognized National Marine
Sanctuaries along the California Coast,
NOAA promulgated regulatory revisions
to better address their concerns with
potential impacts from vessel discharges
by prohibiting discharges of treated and
untreated sewage from cruise ships, and
from large vessels with sufficient
holding tank capacity to hold sewage
while within the Sanctuaries.14 NOAA
Stated that both treated and untreated
vessel sewage are more concentrated
than domestic land-based sewage and
may introduce disease causing
microorganisms into the marine
environment and increase nutrients that
can lead to eutrophication and oxygendepleted ‘‘dead zones.’’ As shown in
Table 1, the four National Marine
Sanctuaries combined with the ten
existing NDZs account for over 33
percent of State marine waters (38
percent including proposed expansions
at the Gulf of the Farallones and Cordell
Bank). These protected areas account for
approximately 51 percent of the 1,624
mile California coastline. The proposed
NDZ would apply to all State marine
waters and would increase protections
by prohibiting treated sewage discharges
from the regulated classes of vessels in
the remaining 67 percent of State
marine waters. A map illustrating these
areas can be obtained or viewed at the
EPA’s Web site at ‘‘https://www.epa.gov/
region9/water/no-discharge/
overview.html, ’’ or by calling (415)
972–3476.
14 Department of Commerce, NOAA, Federal
Register/Vol. 73, No. 225 Published November 20,
2008/15 CFR part 922 and Federal Register/Vol. 74,
No. 11/Friday, January 16, 2009/Rules and
Regulations.
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TABLE 1—STATUS OF CALIFORNIA MARINE WATERS AND TREATED SEWAGE PROTECTION
Area of
California
marine waters
(miles 2)
California marine protected area
National Marine Sanctuaries* ..............................................................................................
Existing NDZs*** ..................................................................................................................
Proposed NDZ .....................................................................................................................
Percent of
California
marine waters
**1,726
29
5,222
Sewage
discharges
prohibited
33.05
0.5
100
Yes
Yes
Proposed
*Office of NMS—NOAA, 2009.
**Area of existing NMS off California’s coast and occurring outside State marine waters equals 7,647 square miles.
***EPA Region 9 GIS Center, September 2006.
Waters along the California coastline
(including islands) support equally
important economic, recreational, and
aesthetic values. Many of these values
are heavily dependent upon clean
water. California’s ocean economy is the
largest in the nation and in 2000 alone,
directly provided approximately
408,000 jobs and contributed $42.9
billion to gross State product. Seventyseven percent of the State’s population
lives on or near the coast and annually,
over 150 million visitor-days are spent
at California beaches. California ranks
first in the nation as a travel destination
and its beaches are the leading
destination for tourists. Coastal tourism
and recreation generate more than $10
billion per year in wages and more than
$20 billion per year in gross State
product. In 2000, California’s
commercial marine fishing industry
generated more than $400 million.15
California coastal waters are home to
more than 889 water contact
recreational facilities including 450
public beaches, of which 63 are units of
the State Parks system. As noted above,
over one third (138 out of 424) of
beaches monitored in California in 2007
reported at least one water quality
advisory due to water quality standard
exceedances, and 104 incidents in 2005
resulted in 486 closure days at
California beaches because of elevated
bacteria levels.
The shellfish industry in California is
vulnerable to water quality impacts
from pathogens from a variety of sources
including vessel discharges. For
example, in 2007, the State adopted a
TMDL (total maximum daily load) for
pathogens to protect recreational uses
and shellfish harvesting in Tomales Bay,
north of San Francisco, where leases
exist for nearly half of the State’s
shellfish growers and production of
almost 20 percent of the State’s
oysters.16, 17
Coastal waters are increasingly more
important for potable water supply as
desalination measures are used to meet
demands. There are more than 40
desalination plants in various stages of
planning and operation in California.18
Given that net potable water demand
exceeds supply in many years, it is
anticipated that desalination will
increase as a means to meet California’s
projected population growth.19 CWA
Section 312(f)(4)(B) recognized the
importance of prohibiting vessel sewage
near drinking water intakes by
authorizing States to apply to the EPA
Administrator for establishment of
NDZs at intake zones.
Pollutants Affecting California Marine
Waters: These aquatic resource uses and
values are threatened and impaired by
pollutant discharges to most California
coastal waters from a variety of land and
marine activities. In addition to marine
vessel discharges, other important
pollutant sources include land-based
wastewater treatment plant ocean
outfalls, stormwater discharges, rivers
and streams, thermal discharges from
power plants, dredging and dredged
material disposal operations, wind
transport, and construction activities.
Pollutants causing water quality
impairment include chemicals, metals,
nutrients, pathogens, sediments, and
heat. Table 2 shows the current status of
impaired water body segments along the
California coast. In California coastal
waters, 222 beach and water body
segments have been designated as
impaired under Section 303(d) of the
CWA. Among the 222 segments, 592
pollutant-impairments that have been
identified as exceeding State water
quality standards still require a TMDL
limit. TMDLs for an additional seventynine impairments have already been
approved by EPA.20 Information on
impaired waters in California can be
found at EPA’s National Summary of
Impaired Waters and TMDLs Web site at
‘‘https://www.epa.gov/owow/tmdl/’’, or by
calling (415) 972–3476.
Of the 671 impairments, at least 162
are for pollutants commonly associated
with sewage, including nutrients, fecal
coliform, and pathogens. Pathogens
alone account for approximately 120
miles of impaired coast line in the State.
TABLE 2—CALIFORNIA MARINE IMPAIRED WATER BODY SEGMENTS AND TMDLS*
Total pollutant
impairments
Impairments
associated with
sewage
Approved
TMDL
222
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Impaired water body
segments
671
162
79
*2006 CWA 303(d) list.
Large Passenger Vessel Sewage
Generation and Pollutants: Large
passenger vessels continue to increase
in size and can now accommodate as
many as 6,300 passengers and 2,400
crew members.21 Because these vessels
15 California’s Ocean Economy, Report to the
Resources Agency, State of California, The National
Ocean Economics Program, 2005.
16 West Marin Chamber of Commerce.
17 The Tomales Bay Watershed Stewardship Plan:
A Framework for Action. Tomales Bay Watershed
Council, July 2003. 137 pp.
18 June 2007 Pacific Institute Desalination Report.
19 April 5, 2006 State Application.
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generate large volumes of sewage, the
State has requested that all large
passenger vessels of 300 gross tons or
20 2006
CWA 303(d) List.
Caribbean Press Release—Fast Facts
Oasis of the Seas/Allure of the Seas-https://
www.oasisoftheseas.com/press-materials.php.
21 Royal
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greater, regardless of sewage holding
capacity, be subject to the proposed
rule. As mandated by SB 771, in 2006
the California State Lands Commission
conducted a survey (2006 Vessel
Survey) of large passenger and large
oceangoing vessels calling on California
ports in order to better understand
vessel sewage generation and
discharges.22 Based on the 33 large
passenger vessels reporting, an average
sized passenger vessel holds nearly
2,900 passengers and crew (2,154 and
709 respectively). At a daily per person
sewage generation rate of 8.4 gallons, an
average sized large passenger vessel is
capable of generating as much as 24,360
gallons of sewage per day.23
In 2008, 48 large passenger vessels
made 788 calls to California ports and
spent an average of one day in port per
arrival.24 As illustrated in Table 3, at an
estimated 24,360 gallons per day and an
average stay of one day, these vessels
could potentially generate 19.2 million
gallons of treated sewage annually while
in State marine waters. EPA has no way
of verifying how much treated large
passenger vessel sewage is actually
discharged in State marine waters; this
53919
depends on actual numbers of
passengers and crew and how much
treated sewage is discharged to
treatment facilities on land and/or held
for discharge outside State waters.
However, it is likely that a significant
portion of this estimated 19.2 million
gallons is in fact currently being
discharged in State waters. The intent of
this proposed rule is to prohibit all
sewage generated from large passenger
vessels from entering State marine
waters.
TABLE 3—CALIFORNIA LARGE PASSENGER VESSEL (LPV) DATA FOR 2008
LPVs*
Passengers & crew**
Port calls*
Average port days**
Estimated sewage
generation
(g/day)***
48
2,900
788
1
24,360
Estimated treated
vessel sewage
generated while
in State waters
(g/year)***
19,195,680
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* State’s January 27, 2009 Application Addendum.
** State Lands Commission 2006 Vessel Survey Data.
*** EPA calculations.
Treated sewage discharges from
vessels generally contain higher
concentrations of pollutants than
discharges of treated sewage from landbased wastewater treatment plants and
can cause or contribute to water quality
impairments and impacts to highly
sensitive marine habitats. This can be
attributed to lower dilution rates for
large passenger vessel sewage
discharges, especially in cases where
these vessels employ vacuum flushing
and conveyance to reduce water use.
Based on data collected in 2000 for
the Alaska Cruise Ship Initiative (21
vessels), the average fecal coliform
concentrations in traditional Type II
MSD effluent was 2.04 million MPN
(most probable number)/100 mL.25 As
shown in Table 4, of the 92 samples
collected, 51 exceeded EPA’s
performance standard for Type II
effluent fecal coliform count of 200
MPN/100 ml. Of the 92 samples
collected, 35 exceeded 100,000 MPN/
100 mL and 22 exceeded 1 million
MPN/100 mL. The range of fecal
coliform concentrations ranged between
<2 MPN/100 mL and 24 million MPN/
100 mL. Based on these results, the
average concentration was as much as
20 times greater than un-treated
municipal wastewater (ranges from
10,000 to 100,000 MPN/100 mL) 26 and
over 10,000 times greater than the
Federal MSD fecal coliform standard of
<200 MPN/100 mL.
EPA’s 2008 Cruise Ship Discharge
Assessment Report found that Type II
MSD effluent concentrations of fecal
coliform also could lead to exceedences
of EPA’s 2006 National Recommended
Water Quality Criteria (NRWQC)
established for shellfish harvesting
waters. This bacteria standard States
that median fecal coliform
concentrations should not exceed 14
MPN/100 mL, with not more than 10
percent of samples exceeding 43 MPN/
100 mL. EPA notes that these are
ambient water quality criteria not
discharge standards, and that depending
on the amount of mixing, discharges
exceeding the numeric level of the
criterion at the point of discharge would
not necessarily lead to an exceedence of
the NRWQC. However, given the levels
of fecal coliform in some of the samples
discussed above, sewage discharges
from cruise ships could be causing or
22 California State Lands Commission 2006 Vessel
Survey data was dictated under SB 771.
23 California State Lands Commission 2006 Vessel
Survey reported 33 large passenger vessels making
port calls in California with an average 709 crew
and 2,154 passengers for an average of 2,864 people
on board.
24 Number and frequency of port calls for large
passenger vessels based on the January 27, 2009
State Application Addendum.
25 2000 Alaska Cruise Ship Initiative, reported in
2008 EPA Cruise Ship Discharge Assessment
Report. Two of the 21 vessels sampled were using
reverse osmosis treatment systems.
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contributing to violations of these
NRWQC as well as State water quality
criteria. For example, California has
adopted the NRWQC for fecal coliform
for shellfish in some coastal waters and
for all coastal waters has adopted
criteria for contact recreation not to
exceed 200 MPN/100 mL with not more
than 10 percent of samples exceeding
400 MPN/100 mL.
For suspended solids, values detected
in effluent from Type II MSDs were
substantially higher than levels that
would generally be considered to
comply with narrative NRWQC landbased discharge standards. Data for
residual chlorine concentrations from
Type II MSDs and advanced wastewater
treatment systems (AWTs) also
exceeded levels that would violate
NWRQC standards if found in the
ambient water. Site-specific evaluations
would be needed to determine whether
these vessel discharges would cause,
have the potential to cause, or
contribute to non-attainment of water
quality standards.27
26 2003
Metcalf & Eddy Wastewater Engineering.
Alaska Cruise Ship Initiative, reported in
2008 EPA Cruise Ship Discharge Assessment
Report.
27 2000
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TABLE 4—FECAL COLIFORM CONCENTRATIONS IN LARGE PASSENGER VESSEL EFFLUENT*
Number of samples
Federal type II MSD standard (MPN/100 ml)
Samples >200 MPN/100
ml
Samples >100,000 MPN/
100 ml
Samples >1,000,000 MPN/
100 ml
92
<200
51
35
22
* 2000 Alaska Cruise Ship Initiative, reported in 2008 EPA Cruise Ship Discharge Assessment Report.
Some large passenger vessels,
especially those traveling to Alaska,
have installed AWTs that provide
sewage treatment effectiveness greater
than Type I and II MSDs; however, the
extent to which vessels operating in
California waters operate AWTs is
unknown. In 2006, 23 of 28 large
passenger vessels that operated in
Alaskan waters had AWTs to treat both
sewage and graywater in order to meet
the more stringent discharge
requirements in effect there. Analyses of
sampling results from 2003–2005
indicate that AWTs are very effective in
removing pathogens, oxygen demanding
substances, suspended solids, oil and
grease, and particulate metals.28 AWTs
can remove some of the dissolved
metals, and can remove most volatile
and semi-volatile organics to levels
below detection limits but achieve
moderate nutrient removals and do not
remove all contaminants. According to
EPA study results of a representative
vessel, toxic pollutants such as
ammonia, copper, nickel, selenium, and
zinc were still discharged at
concentrations above their toxicity
criteria.29 Again, site specific
evaluations would be needed to
determine whether these vessel
discharges would cause, have the
potential to cause, or contribute to nonattainment of water quality standards.
This proposed rule would address
anticipated increases in large passenger
vessel sewage discharges as the industry
grows in future years. In 2007, nearly
1.5 million passengers departed from
California ports making the State the
second largest cruise market in the
nation.30 This is significant considering
North America accounted for more than
75 percent of the overall global cruise
market in 2009. According to the Cruise
Lines International Association (CLIA),
14 new passenger vessels were
introduced globally in 2009, 12 will be
introduced in 2010, with a total of 23 on
order between 2010 and 2012.31 Large
passenger vessel traffic is increasing as
average annual growth of the global
cruise industry has continued at almost
eight percent since 1980. At this rate,
the number of cruise ship passengers is
expected to triple to 15 million by 2020,
while the current number of cruise
ships globally is projected to double by
2020,32 which will significantly
increase the number of vessel trips in
California marine waters.
Vessel Sewage Generated from Large
Oceangoing Vessels with two days or
more sewage holding capacity: Table 5
provides data used to determine sewage
discharges from large oceangoing
vessels with two days or more sewage
holding capacity. Based on 2006 Vessel
Survey data, approximately 35 percent
of the 1,384 vessels reporting had two
days or more of sewage holding
capacity.33 This represents the
approximate percentage of large
oceangoing vessels that would likely be
subject to the proposed rule. According
to the State’s application, in 2008, 1,753
large oceangoing vessels made 9,620
port calls to California. Based on the
2006 survey, 35 percent of those port
calls (3,367 port calls) would have been
made by vessels that are subject to the
proposed rule.34, 35 Larger oceangoing
vessels typically carry 15 to 25 crew
members. The average, based on the
2006 Vessel Survey, was 21 crew
members. The average port stay was two
days. At an average rate of 8.4 g/person/
day, an oceangoing vessel with an
average sized crew would generate
approximately 176 gallons of sewage per
day. EPA multiplied the 176 g/day
average sewage generation rate, with the
estimated 3,367 annual port calls, and
the average two-day port visit, to
estimate that large oceangoing vessels
calling on California ports generate
almost 1.2 million gallons of sewage per
year. As with large passenger vessels,
EPA does not have data for determining
how much of this sewage is discharged
in State marine waters, however it is
likely to be a significant portion. Unlike
large passenger vessels, EPA does not
have treated sewage sampling data for
large oceangoing vessels, but lacking
any data that would demonstrate
otherwise, we assume that sewage from
large oceangoing vessels has similar
pollutant concentrations as large
passenger vessels. The intent of the
proposed rule is to prohibit all treated
sewage from large oceangoing vessels
with adequate holding capacity from
being discharged to State marine waters.
TABLE 5—CALIFORNIA OCEANGOING VESSEL (LOV) DATA FOR 2008
Port calls*
1,753
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LOVs*
Port calls by LOVs
with sufficient
holding tank
capacity***
9,620
3,367
Crew**
Average port
days**
Sewage
(g/day)***
Sewage
Generated
while in State
waters
(g/year)***
21
2
176
1,185,184
* State’s January 27, 2009 Application Addendum.
** State Lands Commission 2006 Vessel Survey Data.
28 Sampling results used include EPA sampled
wastewater from cruise ships in 2004 and 2005,
cruise ship compliance monitoring data for AWT
effluent provided by the Alaska Department of
Environmental Conservation and the Coast Guard
for 2003–2005, and self-monitoring data for AWT
effluent submitted by the cruise industry in
response to EPA’s 2004 cruise ship survey.
29 March 2006, EPA Sampling Episode Report
Princess Cruise Lines—Island Princess, Sampling
Episode 6505.
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30 July 8, 2009 letter from Congress to
Administrator Jackson.
31 CLIA Forecasts Continued Growth in Cruise
Industry, January 12, 2010. https://
www.travelpulse.com/Resources/
Editorial.aspx?n=66206.
32 GlobalSecurity.org: https://
www.globalsecurity.org/military/systems/ship/
passenger-cruise.htm.
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33 According to the California State Lands
Commission 2006 Vessel Survey, 35 percent of
vessels had sewage capacity of two days or more.
This was extrapolated to estimate sewage capacity
of vessels calling in 2008 as reported in the State’s
January 27, 2009 Application Addendum.
34 California State Lands Commission 2006 Vessel
Survey.
35 January 27, 2009 State Application Addendum.
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*** EPA calculations.
Oceangoing vessel traffic is projected
to increase significantly in California
marine waters. San Pedro Bay Ports in
Los Angeles and Long Beach comprise
the highest volume port complex in the
nation and project a 44 percent increase
in the volume of container throughput
between 2010 and 2020.36 Vessel
container capacity will increase with
larger ships, but port calls are still
projected to increase from nearly 3,600
in 2007 to as many as 5,600 in 2020.37
The Port of Oakland, the second highest
volume port in the State and fourth in
the nation, hosted nearly 2,000
container ship calls in 2008 and is
forecast to increase cargo throughput
approximately 5 percent each year
between now and 2017.38 This increase
in vessel traffic will result in increased
generation of treated vessel sewage that
could potentially be discharged to State
marine waters.
Vessels Not Covered by the NDZ: As
described in Section IV of this proposed
rule, the State’s application requested
that the discharge prohibitions be
limited to a certain class of vessels.
Vessels not covered by the proposed
rule include oceangoing vessels with
less than two days of sewage holding
capacity, and vessels less than 300 gross
tons. Based on the State’s 2006 Vessel
Survey data and the number of vessels
calling to California ports in 2008,
approximately 65 percent (1,139) of the
oceangoing vessels had less than two
days of holding capacity and would not
be subject to the rule as proposed.39
Multiplying the estimated 176 g/day
average sewage generation rate, with the
estimated 6,253 annual port calls, and
the average two-day port visit, EPA
estimates that large oceangoing vessels
without adequate holding capacity
generate approximately 2.2 million
gallons of sewage per year. The EPA and
the State are aware that smaller vessels,
including recreational and smaller
commercial vessels, also discharge
sewage to the State’s coastal water. In
deciding to request designation of an
NDZ applicable only to larger vessels as
specified above, but applicable to the
entire California coast, the State
legislature determined that prohibiting
discharge from the largest vessels would
provide a relatively efficient approach
36 San Pedro Bay Ports Long-Term Cargo Forecast,
Mercer Management Consulting, 2001.
37 Container Vessel Forecast for San Pedro Bay
Ports, Mercator Transport Group, 2000.
38 Port of Oakland Website: https://
www.portofoakland.com.
39 California State Lands Commission 2006 Vessel
Survey.
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to reducing the vessel sewage waste
stream along the entire coast because
these vessels generate a significant
amount of sewage compared to smaller
vessels. Vessels equipped with installed
toilets are currently prohibited from
discharging untreated sewage in any
navigable waters within 3 miles from
shore. Based on State estimates for 2006,
approximately 80 percent of the 841,000
recreational vessels in California did not
have Type I (flow through treatment
device for vessels 65 feet or less) or
Type II MSDs and therefore would be
prohibited from discharging sewage to
State marine waters.40 The remaining 20
percent (168,200) can discharge treated
sewage from their MSDs to State waters.
Applying the State’s data for small
vessel usage, two persons per vessel, an
average of one full ‘‘recreation day’’ (four
6-hour trips per year), and an 8.4 gallons
of sewage per person per day, the total
amount of treated sewage potentially
discharged from recreational vessels to
State marine waters in one year could
amount to approximately 2.8 million
gallons, if all discharges were within
State waters.41
In addition to current MSD
requirements, the ten NDZs previously
approved along the California coast
address small vessel pollution in high
density recreational boating areas.42
Instead of seeking an NDZ applicable to
all vessels, the State legislation enacted
companion provisions designed to
improve sewage pump out capacity and
utilization rates for vessel pump out
facilities by recreational and small
commercial vessels as alternative
approaches to reducing sewage
discharges from smaller vessels.
VI. Effect on Current Vessel Sewage
Controls
Today’s proposed rule does not alter
existing vessel sewage discharge
prohibitions in California waters. All
existing NDZs in California remain in
effect for all vessels operating in those
waters.
The proposed rule complements the
discharge prohibitions recently passed
by NOAA for all four of California’s
NMSs. Those discharge prohibitions
were adopted pursuant to California’s
application to NOAA and became
effective March 9, 2009 for the Gulf of
the Farallones, Monterey Bay, and
Cordell Bank National Marine
40 January
27, 2009 State Application Addendum.
27, 2009 State Application Addendum.
42 USEPA No Discharge Zones for Vessel Sewage:
https://www.epa.gov/region09/water/no-discharge/
index.html.
41 January
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Sanctuaries (74 FR 12088 (Mar. 23,
2009)) and March 19, 2009 for the
Channel Islands National Marine
Sanctuary (74 FR 12087 (Mar. 23,
2009)). The new Sanctuary management
plans prohibit ‘‘discharges/deposits of
treated and untreated sewage from
vessels 300 gross registered tons or
more, except oceangoing ships without
sufficient holding tank capacity to hold
sewage and graywater, respectively,
while within the Sanctuary. Large
passenger vessels are not provided an
exception and, therefore, are prohibited
from discharging/depositing treated or
untreated sewage and graywater in the
Sanctuary.’’ See Gulf of the Farallones
National Marine Sanctuary Regulations;
Monterey Bay National Marine
Sanctuary Regulations; and Cordell
Bank National Marine Sanctuary
Regulations; Final Rule, 73 FR 70488
(Nov. 20, 2008) and Channel Islands
National Marine Sanctuary Regulations;
Final Rule, 74 FR 3216 (Jan. 16, 2009).
Like the Sanctuary prohibitions, today’s
proposed rule would not require
oceangoing vessels without sufficient
holding tank capacity, as defined, to
hold treated vessel sewage while within
State marine waters.
The four California National Marine
Sanctuaries cover over 33 percent of all
California marine waters (nearly 38
percent with proposed Cordell bank and
Gulf of the Farallones expansions). This
proposal would cover all California
waters. The discharge prohibitions in
California’s National Marine Sanctuaries
cover a total of 1,726 square miles of
ocean (and would be expanded by
almost 232 square miles with the
proposed expansions) in addition to
nearly 30 square miles of existing NDZs.
In total, sewage discharges are currently
prohibited within 1,755 square miles of
the 5,222 square miles of California
marine waters. Today’s prohibition
would apply to the entire 5,222 square
miles.
Other Existing Vessel Pollutant
Controls: Following several confirmed
sewage discharge violations, the Cruise
Lines International Association (CLIA),
representing the 25 major cruise lines
serving North America, adopted
voluntary industry standards to address
cruise industry waste management.
Under the CLIA 2006 ‘‘Cruise Industry
Waste Management Practices and
Procedures’’, Association members have
agreed to comply with requirements to
process all sewage through an MSD
certified in accordance with U.S. or
international regulations prior to
discharge. For ships that do not have
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AWTs traveling regularly on itineraries
beyond territorial coastal waters, (CLIA)
standards provide that discharge will
take place only when the ship is more
than four miles from shore and when
the ship is traveling at a speed of not
less than six knots (for vessels operating
under sail, or a combination of sail and
motor propulsion, the speed shall not be
less than four knots). For vessels whose
itineraries are fully within U.S.
territorial waters, CLIA standards
provide that discharge shall comply
fully with U.S. and individual State
legislation and regulations.
To EPA’s knowledge, CLIA voluntary
measures are not monitored or reported
and the degree of compliance with these
voluntary measures is unknown. The
State of California states that existing
MSD requirements and voluntary
discharge limitations are not fully
effective.43 While the number of vessels
actually discharging partially or
untreated sewage in State marine waters
can only be estimated, the Government
Accountability Office 2000 report to
Congress 44 and the State confirm
discharges of untreated sewage from
large passenger vessels and other
oceangoing vessels in State marine
waters.
A majority of large oceangoing 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
principal international instrument
regulating discharges of sewage from
vessels is Annex IV to MARPOL. While
the United States is not a Party to
MARPOL Annex IV, and thus is not
bound by its provisions, a vessel flying
the flag of a country who is a Party to
Annex IV remains subject to the
Annex’s requirements (as implemented
and enforced by the flag State) no matter
where the vessel sails, including when
the vessel is operating in U.S. waters.
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). The
Annex contains, among other
requirements, limits on the discharge of
sewage into the sea, and provisions for
the survey and certification of a vessel’s
sewage treatment device. 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 miles (nm) 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 nm 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; or
The vessel is using a type-approved
sewage treatment plant (STP) that has
been certified to meet the applicable
International Maritime Organization’s
recommendations and regulations, the
test results are laid down in the ship’s
International Sewage Pollution
Prevention Certificate, and the effluent
does not produce visible floating solids
or cause discoloration of the
surrounding water.
VII. Conclusion
EPA has reviewed the State’s
application for the establishment of an
NDZ, and other information
summarized above, and has determined
that an NDZ is required to protect and
enhance the quality of these waters. As
shown in Table 6, by prohibiting large
passenger vessels and large oceangoing
vessels with two days or more of sewage
holding tank capacity from discharging
sewage in State marine waters, a
significant pollutant waste stream of up
to 20.4 million gallons of treated sewage
per year would be prohibited from
waters that support a variety of unique,
nationally important and biologically
significant environments that contribute
to California’s recreational, economic,
and aesthetic values. As a result,
improved water quality would likely
benefit human health by reducing
pollutant exposure from recreation and
provide benefits to wildlife and their
habitats, commercial fisheries and shell
bed operations, and water intakes for
desalination plants.
TABLE 6—CALIFORNIA VESSEL SEWAGE CONTRIBUTIONS AND NDZ PROHIBITIONS
Treated vessel
sewage
generation
in State waters
(gallons/year)
Sewage Source
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Large Passenger Vessels ...............................................................................................................
Large Oceangoing Vessels (with two days or more sewage holding capacity) ............................
Combined Large Passenger and Large Oceangoing Vessels .......................................................
Not addressed by this rule
Large Oceangoing Vessels without holding capacity ..............................................................
Recreational Vessels ...............................................................................................................
Combined Large Oceangoing Vessels without holding capacity and Recreational Vessels 45.
Treated vessel
sewage prohibited by
this proposed
NDZ
(gallons/year)
19.2 million ..........................
1.2 million ............................
20.4 million ..........................
19.2 million.
1.2 million.
20.4 million.
2.2 million ............................
2.8 million ............................
5 million ...............................
No Change.
No Change.
No Change.
45 The proposed rule would not apply to non-recreational oceangoing vessels less than 300 gross tons in size. Insufficient data were available
to estimate sewage generation from these smaller oceangoing vessels. Based on a review of available data describing the sizes of oceangoing
vessels operating in US ports, it appears very few oceangoing vessels are less than 300 gross tons in size (see, e.g., Commercial Marine Activity for Deep Sea Ports in the United States, EPA420–R–99–020, September, 1999). Therefore, we do not expect that sewage discharges from
oceangoing vessels less than 300 gross tons are significant in comparison with other types of oceangoing vessels.
Section 312(f)(4)(A) states ‘‘If the EPA
Administrator determines upon
43 April
5, 2006 State Application.
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application by a State that the
protection and enhancement of the
quality of specified waters within such
State requires such a prohibition, he
44 Marine Pollution, Progress Made to Reduce
Marine Pollution by Cruise Ships but Important
Issues Remain, GAO 2000.
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Federal Register / Vol. 75, No. 170 / Thursday, September 2, 2010 / Proposed Rules
shall, by regulation completely prohibit
the discharge from a vessel of any
sewage (whether treated or not) into
such waters.’’ This authority has been
delegated to EPA Regional
Administrators. On April 5, 2006, the
California State Water Resources
Control Board, pursuant to State
statutory mandates, requested that EPA
Region 9 establish an NDZ for all State
waters along the California coast that
applies to large passenger vessels of 300
gross tons or more, and oceangoing
vessels of 300 gross tons or more that
have two days or more of sewage
holding capacity. For the reasons
discussed above, the EPA Region 9
Administrator finds that the protection
and enhancement of the quality of
California’s marine waters requires the
requested NDZ.
VIII. Public Comment
EPA invites public comment on all
aspects of the proposed rule and will
accept all comments for the next 60
days. Particular parts of the rule may
benefit from attention and comment
from reviewers with expertise and
knowledge and opinions on the
following subjects: EPA’s conclusion
that the protection and enhancement of
California State marine waters require
the requested prohibition on sewage
discharges; EPA’s prohibition of sewage
discharges from specific classes of
vessels; EPA’s use of a two-day sewage
holding capacity, and the generation
rate of 8.4 gallons per day per person,
as the basis for applying the proposed
rule to large oceangoing vessels; the
definitions used in the proposed rule,
including the definition of ‘‘large
oceangoing vessel’’ to include private,
commercial, government or military
vessels of 300 gross tons or more; EPA’s
economic analysis for vessel retrofit and
operational costs; and whether vessels
subject to the proposed rule are owned
by companies that are ‘‘small entities’’
under the Regulatory Flexibility Act.
IX. Statutory and Executive Order
Reviews
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A. Executive Order 12866: Regulatory
Planning and Review
Under Executive Order 12866 (58 FR
51735, Oct. 4, 1993), this action is a
‘‘significant regulatory action.’’
Accordingly, EPA submitted this action
to the Office of Management and Budget
(OMB) for review under EO 12866 and
any changes made in response to OMB
recommendations have been
documented in the docket for this
action.
In addition, EPA prepared an
analysis, summarized in Table 7, of the
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potential costs associated with this
action to determine whether the rule
would have an annual effect on the
economy of $100 million or more, or
adversely affect in a material way the
economy or a sector of the economy.
Vessels that are equipped with MSDs
and that navigate throughout California
State Waters are already subject to the
EPA MSD Standard at 40 CFR part 140
and the U.S. Coast Guard MSD Standard
at 33 CFR part 159. These standards
prohibit the overboard discharge of
untreated vessel sewage in State waters
and require that vessels with installed
toilets be equipped with U.S. Coast
Guard certified MSDs which either
retain sewage or treat sewage to the
applicable standards. There are three
types of MSDs, but only Type II and
Type III MSDs apply to vessels affected
by this rule.
Vessels subject to this rule include
large passenger vessels of 300 gross tons
or more and oceangoing vessels of 300
gross tons or more with two days or
more sewage holding capacity.
According to the State’s 2006 Vessel
Survey data, approximately 35 percent
of oceangoing vessels that made port
calls in California had holding capacity
for at least two days and, therefore,
would be subject to the proposed rule.
Based on an average two-day port call,
EPA does not anticipate oceangoing
vessels subject to the proposed rule
would be required to employ
operational or structural changes, such
as making special trips beyond State
marine waters to discharge, or
increasing their holding capacity. If
vessels subject to the proposed rule
were to stay in State marine waters for
a period of time beyond their sewage
holding capacity operators may choose
to make additional trips to discharge
beyond State waters, and/or vessel
owners may decide to retrofit their
current holding tank capacities in order
to comply with the rule.
Although the proposed rule would
not require vessel owners to retrofit any
oceangoing vessels, EPA evaluated the
potential costs of retrofitting holding
tanks to increase capacity. Based on an
industry estimate obtained by the EPA,
the cost of holding tank retrofits could
be approximately $100,000 each but
would vary from vessel to vessel.46 EPA
was unable to estimate an annual cost
of retrofits for oceangoing vessels
subject to the proposed rule. Data was
not available for determining how many
oceangoing vessel owners with vessels
46 Estimate from third party industry group,
11/3/2009.
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53923
subject to the proposed rule might
choose to implement retrofits.
According to responses to EPA’s 2004
cruise ship survey, large passenger
vessels operating in Alaska had an
average of 62 hours of sewage holding
capacity greatly exceeding average port
stays of one day 47 However, according
to the State’s 2006 Vessel Survey 40
percent of the large passenger vessels
had less than one day holding capacity.
As a result, some large passenger vessels
may need to install sewage holding
capacity retrofits to avoid discharging
sewage in State marine waters. Based on
2008 vessel calls, if 40 percent, or 48,
large passenger vessels chose to retrofit
their vessels at a cost of $200,000 per
vessel, the resulting cost would be
approximately $3.8 million.
As an alternative to expanding
holding capacity, vessels that would be
regulated by the proposed rule may
choose to comply by traveling outside of
State marine waters to discharge
sewage. For large passenger vessels,
EPA estimates the cost of each trip
would be approximately $2,000. This
estimate assumes the use of 800 gallons
of diesel fuel at $2.50 per gallon to
travel beyond 3 miles, discharge, and
return to port at a cruising speed of 25
knots.48 Based on the 2008 data, if all
788 port calls required extra trips to
discharge sewage outside State marine
waters, the total fuel cost would be
approximately $1.6 million per year.
This is likely a conservative estimate
considering there are volunteer vessel
speed reduction programs in place and
under development along the California
coast that provide incentives to vessel
operators to reduce speeds within 20
nautical miles of the coast to reduce air
pollutant emissions.49 Lower speeds
could reduce fuel consumption costs by
as much as 30 percent.50
Vessels calling at ports within the San
Francisco Bay, and Suisun Bay further
inland, would have to travel beyond 3
miles to discharge beyond the NDZ
limit. At most, a small percentage of
oceangoing vessels calling at the Shell
47 2008 EPA Cruise Ship Discharge Assessment
Report.
48 Cunard Queen Elizabeth 2 Technical
Information estimated fuel consumption rate of 49.5
feet per gallon: https://www.cunard.com/uploads/
QE2_Tech.pdf.
49 Ports of Los Angeles and Long Beach Vessel
Speed Reduction Program: https://
www.portoflosangeles.org/environment/ogv.asp.
Port of San Diego Voluntary Vessel Speed
Reduction Program Showing Signs of Success:
https://www.portofsandiego.org/environment/1728voluntary-vessel-speed-reduction-program-showingsigns-of-success.html.
50 New York Times, February 16, 2010, Slow Trip
Across Sea Aids Profit and Environment: https://
www.nytimes.com/2010/02/17/business/energyenvironment/17speed.html.
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Federal Register / Vol. 75, No. 170 / Thursday, September 2, 2010 / Proposed Rules
Oil Terminal of Martinez and Port of
Benicia would need to travel
approximately 45 miles each way to go
beyond the 3 mile NDZ limit and back.
Vessels calling at the Ports of Oakland
and Richmond would travel
approximately 18 miles each way and
for the Port of San Francisco, 9 miles
each way. Greater travel distances to
discharge beyond the NDZ limit could
incur increased costs for this small
percentage of vessels.
EPA was unable to estimate an annual
cost of special trips for oceangoing
vessels to discharge beyond State
marine waters. Data was not available
for determining how many oceangoing
vessel owners with vessels subject to the
proposed rule might choose to
implement these operational changes.
TABLE 7—POTENTIAL INDUSTRY COSTS FROM THE PROPOSED RULE
Expansion of holding tank**
Large Oceangoing Vessels (with two days or more sewage holding capacity)* ..........
Large Passenger Vessels ..............................................................................................
$100,000/vessel ......................................
$3.8 million .............................................
Discharging
outside of
State marine
waters ***
$2,000/trip.
$1.6 million.
* Oceangoing
vessels subject to proposed rule that would make operational or structural changes could not be determined.
cost estimate.
cost estimates.
** One-time
*** Annual
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B. Paperwork Reduction Act
This action does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. Burden is
defined at 5 CFR 1320.3(b). Since
today’s rule would not establish or
modify any information and record
keeping requirements, it is not subject to
the requirements of the Paperwork
Reduction Act.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements under the
Administrative Procedure Act or any
other statute unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small
organizations, and small governmental
jurisdictions.
For purposes of assessing the impacts
of today’s rule on small entities, small
entity is defined as: (1) A small business
as defined by the Small Business
Administration’s (SBA) regulations at 13
CFR 121.201; (2) a small governmental
jurisdiction that is a government of a
city, county, town, school district or
special district with a population of less
than 50,000; and (3) a small
organization that is any not-for-profit
enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impacts of this proposed regulation/rule
on small entities, EPA certifies that this
action will not have a significant
economic impact on a substantial
number of small entities. The small
entities subject to the requirements of
this proposed rule fall under Deep Sea
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Freight Transportation (NAICS Code
483111) and Deep Sea Passenger
Transportation (NAICS 483112)
classifications.51 The US Small Business
Administration size standard for these
businesses is 500 or fewer employees.
To determine the size of companies that
own large passenger and large
oceangoing vessels that call at California
ports, the EPA reviewed owner profiles
for all large passenger vessels and
several oceangoing vessels that
responded to the 2006 vessel survey.
Based on this review, it was determined
that no large passenger and oceangoing
vessels that call at California ports are
owned by companies that employ 500 or
fewer people.
We continue to be interested in the
potential impacts of the proposed rule
on small entities and welcome
comments on issues related to such
impacts.
D. Unfunded Mandates Reform Act
This rule does not contain a Federal
mandate that may result in expenditures
of $100 million or more for State, local,
and tribal governments, in the aggregate,
or the private sector in any one year, as
demonstrated above in section A,
Executive Order 12866: Regulatory
Planning and Review.
Because the rule contains no
regulatory requirements that might
significantly or uniquely affect small
governments, it is also not subject to the
requirements of section 203 of the Act.
Small governments are subject to the
same requirements as other entities
whose duties result from this rule and
they have the same ability as other
entities to retain and pump out treated
51 U.S. Small Business Administration Table of
Small Business Size Standards, North American
Industry Classification System (NAICS)), https://
www.sba.gov/size).
PO 00000
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Sfmt 4702
sewage or discharge outside of the
designated zones.
E. Executive Order 13132: Federalism
This action does not have Federalism
implications. It will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. Section 312(f) of
the CWA generally preempts State
regulation of sewage discharges in State
waters. An NDZ allows the State to seek
protection of its State waters that it
would otherwise be preempted from
providing on its own. The State of
California is requesting that EPA take
action to designate all State waters as an
NDZ under CWA § 312(f)(4)(A).
Therefore, Executive Order 13132 does
not apply to this action.
In the spirit of Executive Order 13132,
and consistent with EPA policy to
promote communications between EPA
and State and local governments, EPA
specifically solicits comment on this
proposed action from State and local
officials.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have any known
tribal implications, as specified in
Executive Order 13175 (65 FR 67249,
Nov. 9, 2000). The only expected impact
on tribal rights or responsibilities is the
improvement of ocean water quality.
EPA has notified all California tribes
with coastal reservations of this
proposed action. EPA will consider any
comments on this proposed action from
tribal officials.
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Federal Register / Vol. 75, No. 170 / Thursday, September 2, 2010 / Proposed Rules
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks & Safety Risks
The order applies to economically
significant rules under E.O. 12866 that
concern an environmental health or
safety risk that EPA has reason to
believe may disproportionately affect
children. This action is not subject to
EO 13045 (62 FR 19885, April 23, 1997)
because it is not economically
significant as defined in EO 12866.
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not a ‘‘significant energy
action’’ as defined in Executive Order
13211 (66 FR 28355, May 22, 2001),
because it is not likely to have a
significant adverse effect on the supply,
distribution, or use of energy.
wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104–
113, 12(d) (15 U.S.C. 272 note) directs
EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards (e.g.,
materials specifications, test methods,
sampling procedures, and business
practices) that are developed or adopted
by voluntary consensus standards
bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations
when the Agency decides not to use
available and applicable voluntary
consensus standards.
This proposed rulemaking does not
involve technical standards. Therefore,
EPA is not considering the use of any
voluntary consensus standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629
(Feb. 16, 1994)) establishes Federal
executive policy on environmental
justice. Its main provision directs
Federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this
proposed rule will not have
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disproportionately high and adverse
human health or environmental effects
on minority or low-income populations
because it increases the level of
environmental protection for all affected
populations without having any
disproportionately high and adverse
human health or environmental effects
on any population, including any
minority or low-income population. The
proposed rule would further regulate
and reduce pollutants from sewage in
California marine waters thus reducing
the risk of exposure to all populations,
including those covered under this
Executive order.
Lists of Subjects in 40 CFR Part 140
Environmental protection, Sewage
disposal, Vessels.
Dated: August 25, 2010.
Jared Blumenfeld,
Regional Administrator, Region IX.
In consideration of the foregoing, EPA
is proposed to be amend part 140,
chapter 1 of title 40 of the Code of
Federal Regulations as follows:
BILLING CODE 6560–50–P
1. The authority citation for part 140
continues to read as follows:
Authority: 33 U.S.C. 1322.
2. Section 140.4 is amended by
adding paragraph (b)(2)to read as
follows:
Complete prohibition.
*
*
*
*
*
(b) * * *
(2)(i) For the marine waters, of the
State of California, including the
territorial sea measured from the
baseline as determined in accordance
with the Convention on the Territorial
Sea and the Contiguous Zone and
extending seaward a distance of three
miles, and also including all enclosed
bays and estuaries subject to tidal
influences from the Oregon border
(41.999325 North Latitude, 124.212110
West Longitude, decimal degrees, NAD
1983) to the Mexican border (32.471231
North Latitude, 117.137814 West
Longitude, decimal degrees, NAD 1983),
the discharge of sewage (whether treated
or not) from large passenger vessels and
from large oceangoing vessels that have
two days or more holding capacity is
completely prohibited pursuant to CWA
section 312(f)(4)(A). A map illustrating
these waters can be obtained from EPA
or viewed at https://www.epa.gov/
region9/water/no-discharge/
overview.html.
(ii) For purposes of paragraph (b)(2) of
this section:
PO 00000
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Fmt 4702
Sfmt 4702
(A) A ‘‘large passenger vessel’’ means
a passenger vessel, as defined in section
2101(22) of title 46, United States Code,
of 300 gross tons or more, that has
berths or overnight accommodations for
passengers.
(B) A ‘‘large oceangoing vessel’’ means
a private, commercial, government, or
military vessel of 300 gross tons or
more.
(C) Two days of holding capacity is
the ability to hold in a holding tank of
suitable design, construction and
purpose, as determined by the vessel’s
flag Administration, at least two days of
sewage per the vessel’s crew capacity at
a generation rate of 8.4 gallons per day
per person.
(D) Oceangoing vessel crew capacity
is determined by: a certificate of
inspection issued by the US Coast
Guard for US flagged vessels; or a
MARPOL Annex 4 certificate issued by
the signatory State for foreign flagged
vessels. For either certificate, the
maximum number of passengers and
crew is identified for the vessel.
*
*
*
*
*
[FR Doc. 2010–21950 Filed 9–1–10; 8:45 am]
PART 140—[AMENDED]
§ 140.4
53925
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 223
[Docket No. 0808071080–91228–01]
RIN 0648–AW93
Sea Turtle Conservation; Shrimp and
Summer Flounder Trawling
Requirements
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
NMFS proposes to revise the
turtle excluder device (TED)
requirements to allow the use of new
materials and modifications to existing
approved TED designs. Specifically,
proposed allowable modifications
include the use of flat bar, rectangular
pipe, and oval pipe as construction
materials in currently-approved TED
grids; an increase in maximum mesh
size on escape flaps from 15⁄8 to 2 inches
(4.1 to 5.1 cm); the inclusion of the
Boone Big Boy TED for use in the
shrimp fishery; the use of three large
TED and Boone Wedge Cut escape
openings; and the use of the Chauvin
SUMMARY:
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]]>Agencies
[Federal Register Volume 75, Number 170 (Thursday, September 2, 2010)]
[Proposed Rules]
[Pages 53914-53925]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-21950]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 140
[EPA-R09-OW-2010-0438; FRL-9196-3]
RIN 2009-AA04
Marine Sanitation Devices (MSDs): Proposed Regulation To
Establish a No Discharge Zone (NDZ) for California State Marine Waters
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to establish a No Discharge Zone (NDZ) for
sewage discharges from: Large passenger vessels; and oceangoing vessels
of 300 gross tons or more (referred to throughout this proposed rule as
``Large oceangoing vessels'') with two days or more sewage holding
capacity to California State marine waters pursuant to Section
312(f)(4)(A) of the Clean Water Act (CWA), 33 U.S.C. 1322(f)(4)(A).
This action is being taken in response to an April 5, 2006 application
from the California State Water Resources Control Board (State)
requesting establishment of this NDZ. Under Section 312(f)(4)(A), if
EPA determines upon application by a State that the protection and
enhancement of the quality of specified waters within such State
requires such a prohibition, then EPA shall by regulation completely
prohibit the discharge of any sewage (whether treated or not) from a
vessel into such waters. California State marine waters would be
defined as the territorial sea measured from the baseline, as
determined in accordance with the Convention on the Territorial Sea and
the Contiguous Zone, and extending seaward a distance of three miles,
and would also include all enclosed bays and estuaries subject to tidal
influences from the Oregon border to the Mexican border. (Federal Clean
Water Act Section 502(8)). State marine waters also extend three miles
from State islands, including the Farallones and the Northern and
Southern Channel Islands. A map of California State marine waters can
be obtained or viewed at the EPA's Web site at https://www.epa.gov/region9/water/no-discharge/overview.html, or by calling (415) 972-3476.
It should be noted that effective March 2009, the National Oceanic and
Atmospheric Administration (NOAA) established prohibitions on the
discharge of sewage from large vessels in waters within the boundaries
of the four National Marine
[[Page 53915]]
Sanctuaries along the California coast (73 FR 70487).
DATES: Comments must be submitted to EPA on or before November 1, 2010.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OW-
2010-0438, by one of the following methods: 1. Federal eRulemaking
Portal: https://www.regulations.gov. Follow the on-line instructions. 2.
E-mail: ota.allan@epa.gov. 3. Mail or deliver: Allan Ota (WTR-8), U.S.
Environmental Protection Agency Region IX, 75 Hawthorne Street, San
Francisco, CA 94105-3901.
Instructions: All comments 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 Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute.
Information that you consider CBI or otherwise protected should be
clearly identified as such and should not be submitted through https://www.regulations.gov or e-mail. https://www.regulations.gov is an
``anonymous access'' system, and EPA will not know your identity or
contact information unless you provide it in the body of your comment.
If you send e-mail directly to EPA, your e-mail address will be
automatically captured and included as part of the public comment. 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.
Docket: The index to the docket for this action is available
electronically at https://www.regulations.gov and in hard copy at EPA
Region IX, 75 Hawthorne Street, San Francisco, California. While all
documents in the docket are listed in the index, some information may
be publicly available only at the hard copy location (e.g., copyrighted
material), and some may not be publicly available in either location
(e.g., CBI). To inspect the hard copy materials, please schedule an
appointment during normal business hours with the contact listed in the
FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Allan Ota, Wetlands Office, Water
Division, EPA Region 9, 75 Hawthorne Street (WTR-8), San Francisco, CA
94105, (ota.allan@epa.gov).
SUPPLEMENTARY INFORMATION:
I. Background of Clean Water Act Section 312
Clean Water Act Section 312, 33 U.S.C. 1322, (hereafter referred to
as ``Section 312''), regulates the discharge of sewage from vessels
into the navigable waters. Pollutants most frequently associated with
sewage discharges include solids, nutrients, pathogens, petroleum
products, heavy metals, pesticides, pharmaceuticals, and other
potentially harmful compounds.\1\ Sewage discharges contaminate
shellfish beds, pollute drinking water supplies, harm fish and other
aquatic wildlife, and cause damage to coral reefs.
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\1\ Page 33 of the April 5, 2006 State Application/
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Direct contact with these pollutants can have serious human health
effects, with children, the elderly, and individuals with compromised
immune systems being most susceptible. While data specifically
associating disease outbreaks with sewage discharges from vessels are
not available, data summarizing disease outbreaks and beach closures
due to waterborne pathogens are available. During 2005-2006, the most
recent period for which data are available, waterborne disease
outbreaks associated with pathogen exposures in recreational water were
reported by 31 States and territories through the Centers for Disease
Control's Waterborne Disease and Outbreak Surveillance System.\2\
During this period, 4,412 people were reported ill, resulting in 116
hospitalizations and five deaths. Thirty of these outbreaks were
reported in California.\3\ These data include exposures to pathogens at
beaches and other natural swimming locations, but pathogen sources were
not specifically identified.
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\2\ Yoder, et al., 2008, Surveillance for Waterborne Disease and
Outbreaks Associated with Recreational Water Use and Other Aquatic
Facility-Associated Health Events--United States, 2005-2006. Centers
for Disease Control, Surveillance Summaries, 57(SS09), September 12,
2008.
\3\ Yoder, et al., 2008.
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When pathogen levels exceed water quality standards, States and
territories may issue swimming advisories or close beaches to swimming.
EPA's Beach Monitoring and Notification program reports that of the
3,740 coastal beaches monitored in 2008, 1,210 (32 percent) had at
least one swimming closure or advisory and coastal beaches were under
swimming closures or advisories about 5 percent of the time, similar to
the previous two years. For 2007, the last year for which data was
available, 138 of the 424 monitored beaches in California had at least
one water quality advisory due to water quality standard
exceedances.\4\ According to the State's California Beach Water Quality
Information Page in 2005, the last year reported, there were 104 beach
closure events for a total of 486 beach days because monitoring
indicated elevated bacteria levels.\5\
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\4\ EPA, 2009, National Summary: 2008 Swimming Season Update.
EPA 823-F-09-005, May 2009.
\5\ State Water Resources Control Board, California Beach Water
Quality Information page: https://www.swrcb.ca.gov/water_issues/programs/beaches/beach_water_quality/.
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Shellfish beds are also vulnerable to coastal pollutants resulting
in closures when water quality standards are exceeded. In 2001, the
last comprehensive national study of water quality data at shellfish
beds revealed that 40 percent were unsuitable for harvesting.\6\
Pathogens from a variety of sources, including urban and agricultural
runoff, vessel discharges, sewage treatment plants and septic systems
can contribute to shellfish bed contamination, closure, and illness in
human shellfish consumers.\7\
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\6\ EPA, 2001. National Coastal Condition Report. United States
Environmental Protection Agency. Office of Research and Development
and Office of Water, Washington, DC EPA-620/R-01/005.
\7\ EPA National Estuary Program: https://www.epa.gov/nep/challenges.html.
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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 marine sanitation device (MSD), certified by the Coast Guard
to meet applicable performance standards. 33 U.S.C. 1322(h). The
provisions of section 312 are implemented jointly by EPA and the Coast
Guard. EPA sets performance standards for MSDs and is involved in
varying degrees 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 performance standards. 33 U.S.C. 1322(b) and (g);
see also 33 CFR part 159. The Coast Guard's responsibility includes
certifying MSDs for installation on U.S. flagged vessels. There are
three types of MSDs:
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 more than 1000 fecal coliform count per
100 mL, with no visible floating solids.
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
[[Page 53916]]
length. The performance standard applied to Type II MSDs is to produce
an effluent with no more than 200 fecal coliform 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.
[33 U.S.C. 1322 (b and h), 40 CFR 140.3; 33 CFR part 159].
CWA section 312 generally preempts State regulation of the
discharge of sewage from vessels: ``no State or political subdivision
thereof shall adopt or enforce any statute or regulation of such State
or political subdivision with respect to the design, manufacture, or
installation or use of any [MSD] on any vessel subject to the provision
of [CWA section 312].'' CWA Sec. 312(f)(1)(A), 33 U.S.C.
1322(f)(1)(A). Under Section 312(f), however, States may, in certain
circumstances, request that EPA establish no discharge zones (``NDZs'')
for vessel sewage or, after required findings are made by EPA,
establish such zones themselves.
There are three types of NDZ designations. First, under section
312(f)(3) States may designate portions or all of their waters as NDZs
if the State determines that the protection and enhancement of the
quality of the waters require greater environmental protection than
provided by current Federal standards. However, no such prohibition
applies to discharges until EPA determines that adequate facilities for
the safe and sanitary removal and treatment of sewage from all vessels
are reasonably available for the waters in the NDZ. Second, a State may
apply under section 312(f)(4)(A) for EPA's determination that the
protection and enhancement of the quality of specified waters within
such State requires a prohibition. In contrast to section 312(f)(3) NDZ
designations, section 312(f)(4) does not require EPA to determine that
adequate pump out facilities are reasonably available for all vessels.
Upon this determination, EPA shall by regulation completely prohibit
the discharge from a vessel of any sewage (whether treated or not) into
such waters. Lastly, a State may apply under section 312(f)(4)(B) for
EPA to establish, by regulation, a drinking water intake zone which
prohibits the discharge of sewage into that zone. [33 U.S.C. 1322(f),
40 CFR 140.4] California applied to EPA to establish the proposed NDZ
under CWA section 312(f)(4)(A).
While section 312(f)(3) has been used to prohibit discharges in an
entire State's waters, today's NDZ, if finalized, would be the first
CWA section 312(f)(4)(A) NDZ to cover an entire State's waters. It
would also be the first NDZ to only apply to discrete classes of
vessels. Today's proposed rule would apply to all California marine
waters and to two specific types of vessels--(1) passenger vessels of
300 gross tons or more having berths or overnight accommodations, and
(2) oceangoing vessels of 300 gross tons or more with two days or more
of sewage holding capacity. As discussed in Sections V and VI of the
preamble, the proposed NDZ will not alter existing NDZs in California,
all of which were enacted pursuant to 312(f)(3). Those NDZs remain in
effect for all vessels. These NDZs cover a relatively small portion of
California's marine waters, although as discussed below, certain
discharges of sewage are also prohibited under NOAA regulations for
marine sanctuaries in California waters.
II. Enforcement
The U.S. Coast Guard and the States are authorized to enforce the
requirements of Section 312. 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. 33 U.S.C. 1322(j). For
more information see 33 U.S.C. 1322(j) and the U.S. Coast Guard's
regulations at 33 CFR part 159.\8\
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\8\ U.S. Coast Guard MSD Requirements: https://www.uscg.mil/hq/cg5/cg5213/msd.asp.
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III. The State's Application for This NDZ
The State of California declared the importance of protecting and
enhancing coastal water quality when it enacted legislation in 2003-
2004 to limit pollution from large passenger vessels Assembly Bill (AB)
121, AB 906, AB 2093, and AB 2672 (available in the docket for today's
proposal). The new legislation required a number of actions to address
and reduce sewage and other pollution discharges from large vessels.
Specifically, AB 2672 required the State Water Resources Control Board
(State Board) to submit an application to the EPA seeking Federal
prohibition of discharges of sewage from large passenger vessels to
State waters.\9\ Similarly, the State enacted the California Clean
Coast Act of 2005 (Senate Bill (SB) 771) to address and reduce sewage
and other pollution discharges from large oceangoing vessels with
sufficient holding tank capacity. SB 771 directed the State Board to
submit an application to the EPA seeking prohibition of sewage
discharges from large oceangoing vessels with ``sufficient holding tank
capacity'' to contain sewage while the vessels are within the marine
waters of the State. In enacting this legislation, the State found that
California's coastal waters warrant a higher level of protection and
determined that protection and enhancement of coastal water quality
requires a reduction in vessel sewage discharges to the State's coastal
waters. The legislation also provided that ``[i]t is not the
Legislature's intent to establish for the marine waters of the State a
no discharge zone for sewage from all vessels, but only for a class of
vessels.'' \10\
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\9\ California State Assembly Bill 2672, Section 1(c).
\10\ California Senate Bill 771, Chapter 588, Section 21.
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The information submitted by the State in its application for this
NDZ (available in the docket for today's proposal) documents the
importance of California's marine waters, the sensitivity of all of
California's marine waters to sewage discharges, and the need for the
proposed NDZ to protect and enhance those waters.
IV. Who is affected by this rule?
The proposed rule would completely prohibit the discharge of sewage
(whether treated or not) from all large passenger vessels, as defined
by 46 U.S.C. 2101(22), of 300 gross tons or more and which have berths
or overnight accommodations, and private, commercial, government, and
military oceangoing vessels of 300 gross tons or more. The State's
definition of large passenger vessels in AB 2672 excluded all
noncommercial, government and military vessels, treating them as
``oceangoing ships.'' For this proposed rule EPA uses the generally
applicable definition of ``passenger vessel'' from Title 46 of the US
Code, but, like the State, applies the rule only to passenger vessels
of 300 gross tons or more and which have berths or overnight
accommodations. A large oceangoing vessel means a private, commercial,
government, or military vessel of 300 gross tons or more.
Certain Department of Defense (DoD) vessels and activities may be
exempt from these requirements. Pursuant to CWA Section 312(d), the
Secretary of
[[Page 53917]]
Defense promulgated DoD 4715.06-R1 ``Regulations on Vessels Owned or
Operated by the Department of Defense'' (January 2005), which explains
the circumstances under which DoD may exempt its vessels from the
sewage discharge requirements of Section 312, including NDZs, because
compliance would excessively and unreasonably detract from the vessel's
military characteristics, effectiveness, or safety, and not be in the
interest of national security. Exempted vessels are nonetheless
required to limit sewage discharges into U.S. navigable waters,
territorial seas, and NDZs to the maximum extent practicable without
endangering the health, safety, or welfare of the crew or other
personnel aboard.
The State legislation limits the prohibition on discharges of
sewage to large oceangoing vessels with ``sufficient holding tank
capacity.'' SB 771 defined ``sufficient holding tank capacity'' to mean
a holding tank of sufficient capacity to contain sewage while the
oceangoing ship is within the marine waters of the State.\11\ For the
purposes of this proposed rule, ``sufficient holding tank capacity''
means two days or more of sewage holding capacity based on the ability
to hold at least two day's sewage while in State marine waters. A
suitable holding tank is a tank that was designed, constructed, and
certified by the ship's flag administration to hold sewage. Two days of
sewage holding capacity is consistent with California State Lands
Commission 2006 Vessel Survey Data, required under SB 771, that showed
oceangoing vessel port calls averaged two days in duration.\12\ The two
day duration was established based on this data and through
consultation with the State. For purposes of this proposed rule, the
two-day holding tank capacity would be determined by multiplying the
crew capacity of a vessel by the average sewage generation rate of 8.4
gallons of sewage per day, per person.\13\ Oceangoing vessel capacity
is determined by: (1) A certificate of inspection issued by the US
Coast Guard for US flagged vessels; or (2) a MARPOL Annex 4 certificate
issued by the signatory State for foreign flagged vessels. For either
certificate, the maximum number of passengers and crew is identified
for the vessel.
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\11\ California Senate Bill 771, Chapter 588, Section 6
(72401(a)).
\12\ California State Lands Commission 2006 Vessel Survey.
\13\ EPA's December 29, 2008 Cruise Ship Discharge Assessment
Report found that average reported sewage generation rates were 8.4
gallons/day/person.
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V. EPA's Determination That the Protection and Enhancement of the
Quality of California Coastal Waters Requires This NDZ
Importance of California Waters: California's coastal waters
contain a wide variety of unique, nationally important marine
environments that support rich biological communities and a wide range
of recreational, commercial, conservation, research, educational, and
aesthetic values. Coastal areas contain the greatest variety of
habitats in California, including tidepools, estuaries, embayments,
headlands, sandy beaches, mudflats, tidal wetlands, eelgrass beds, kelp
forests, and deep ocean floor. California's highly varied marine
environments support high levels of biological diversity and habitat
for several dozen species listed as endangered, threatened, or of
concern under Federal or State law, including 10 species of marine
mammals, 4 species of anadromous fish, and 9 species of sea birds. The
State has also established essential habitat along much of the coast
for nearly 100 species of fish.
The unique values associated with California's coastal marine
environment have been recognized through the creation of a network of
more than 200 protected areas, reserves, sanctuaries, and monuments
that together afford special resource protection status to the vast
majority of California coastal waters. For example, the four Federally
designated National Marine Sanctuaries (Cordell Bank, Gulf of the
Farallones, Monterey Bay, and Channel Islands) in California occupy
approximately one-third of the coastline and over 9,373 square miles of
marine waters (1,726 within State waters) while the California Coastal
National Monument protects more than 20,000 small islands, reefs, and
pinnacles. The National Park Service manages 6 park facilities along
the California coast including the Channel Islands and Redwood National
Parks and Golden Gate National Recreation Area. Thirteen national
wildlife refuges and 22 marine reserves have been established along the
California coast, several of which cover substantial portions of marine
embayments and estuarine areas. Three National Estuarine Research
Reserves have been designated under the Coastal Zone Management Act as
a partnership between the National Oceanic and Atmospheric
Administration (NOAA) and the State, including San Francisco Bay;
Elkhorn Slough; and Tijuana River. NOAA, has also established Essential
Fish Habitat for several species along the entire California coast. The
State has designated more than 80 Marine Protected Areas, 34 Areas of
Special Biological Significance--Water Quality Protection Areas, 14
Ecological Reserves, 17 State and University of California Reserves, 20
Marine Refuges, and 14 Underwater Parks and Preserves intended to
preserve and enhance living marine resources, cultural and historical
resources, and recreational and research opportunities. The State,
pursuant to CWA 312(f)(3), previously established ten individual NDZs
along the California coast. These NDZs were established after EPA made
the necessary finding that adequate pump out facilities are reasonably
available in the areas of the NDZs.
Following establishment of the four federally recognized National
Marine Sanctuaries along the California Coast, NOAA promulgated
regulatory revisions to better address their concerns with potential
impacts from vessel discharges by prohibiting discharges of treated and
untreated sewage from cruise ships, and from large vessels with
sufficient holding tank capacity to hold sewage while within the
Sanctuaries.\14\ NOAA Stated that both treated and untreated vessel
sewage are more concentrated than domestic land-based sewage and may
introduce disease causing microorganisms into the marine environment
and increase nutrients that can lead to eutrophication and oxygen-
depleted ``dead zones.'' As shown in Table 1, the four National Marine
Sanctuaries combined with the ten existing NDZs account for over 33
percent of State marine waters (38 percent including proposed
expansions at the Gulf of the Farallones and Cordell Bank). These
protected areas account for approximately 51 percent of the 1,624 mile
California coastline. The proposed NDZ would apply to all State marine
waters and would increase protections by prohibiting treated sewage
discharges from the regulated classes of vessels in the remaining 67
percent of State marine waters. A map illustrating these areas can be
obtained or viewed at the EPA's Web site at ``https://www.epa.gov/region9/water/no-discharge/overview.html, '' or by calling (415) 972-
3476.
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\14\ Department of Commerce, NOAA, Federal Register/Vol. 73, No.
225 Published November 20, 2008/15 CFR part 922 and Federal
Register/Vol. 74, No. 11/Friday, January 16, 2009/Rules and
Regulations.
[[Page 53918]]
Table 1--Status of California Marine Waters and Treated Sewage Protection
----------------------------------------------------------------------------------------------------------------
Area of
California Percent of Sewage
California marine protected area marine waters California discharges
(miles \2\) marine waters prohibited
----------------------------------------------------------------------------------------------------------------
National Marine Sanctuaries*................................ **1,726 33.05 Yes
Existing NDZs***............................................ 29 0.5 Yes
Proposed NDZ................................................ 5,222 100 Proposed
----------------------------------------------------------------------------------------------------------------
*Office of NMS--NOAA, 2009.
**Area of existing NMS off California's coast and occurring outside State marine waters equals 7,647 square
miles.
***EPA Region 9 GIS Center, September 2006.
Waters along the California coastline (including islands) support
equally important economic, recreational, and aesthetic values. Many of
these values are heavily dependent upon clean water. California's ocean
economy is the largest in the nation and in 2000 alone, directly
provided approximately 408,000 jobs and contributed $42.9 billion to
gross State product. Seventy-seven percent of the State's population
lives on or near the coast and annually, over 150 million visitor-days
are spent at California beaches. California ranks first in the nation
as a travel destination and its beaches are the leading destination for
tourists. Coastal tourism and recreation generate more than $10 billion
per year in wages and more than $20 billion per year in gross State
product. In 2000, California's commercial marine fishing industry
generated more than $400 million.\15\
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\15\ California's Ocean Economy, Report to the Resources Agency,
State of California, The National Ocean Economics Program, 2005.
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California coastal waters are home to more than 889 water contact
recreational facilities including 450 public beaches, of which 63 are
units of the State Parks system. As noted above, over one third (138
out of 424) of beaches monitored in California in 2007 reported at
least one water quality advisory due to water quality standard
exceedances, and 104 incidents in 2005 resulted in 486 closure days at
California beaches because of elevated bacteria levels.
The shellfish industry in California is vulnerable to water quality
impacts from pathogens from a variety of sources including vessel
discharges. For example, in 2007, the State adopted a TMDL (total
maximum daily load) for pathogens to protect recreational uses and
shellfish harvesting in Tomales Bay, north of San Francisco, where
leases exist for nearly half of the State's shellfish growers and
production of almost 20 percent of the State's oysters.\16,\ \17\
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\16\ West Marin Chamber of Commerce.
\17\ The Tomales Bay Watershed Stewardship Plan: A Framework for
Action. Tomales Bay Watershed Council, July 2003. 137 pp.
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Coastal waters are increasingly more important for potable water
supply as desalination measures are used to meet demands. There are
more than 40 desalination plants in various stages of planning and
operation in California.\18\ Given that net potable water demand
exceeds supply in many years, it is anticipated that desalination will
increase as a means to meet California's projected population
growth.\19\ CWA Section 312(f)(4)(B) recognized the importance of
prohibiting vessel sewage near drinking water intakes by authorizing
States to apply to the EPA Administrator for establishment of NDZs at
intake zones.
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\18\ June 2007 Pacific Institute Desalination Report.
\19\ April 5, 2006 State Application.
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Pollutants Affecting California Marine Waters: These aquatic
resource uses and values are threatened and impaired by pollutant
discharges to most California coastal waters from a variety of land and
marine activities. In addition to marine vessel discharges, other
important pollutant sources include land-based wastewater treatment
plant ocean outfalls, stormwater discharges, rivers and streams,
thermal discharges from power plants, dredging and dredged material
disposal operations, wind transport, and construction activities.
Pollutants causing water quality impairment include chemicals, metals,
nutrients, pathogens, sediments, and heat. Table 2 shows the current
status of impaired water body segments along the California coast. In
California coastal waters, 222 beach and water body segments have been
designated as impaired under Section 303(d) of the CWA. Among the 222
segments, 592 pollutant-impairments that have been identified as
exceeding State water quality standards still require a TMDL limit.
TMDLs for an additional seventy-nine impairments have already been
approved by EPA.\20\ Information on impaired waters in California can
be found at EPA's National Summary of Impaired Waters and TMDLs Web
site at ``https://www.epa.gov/owow/tmdl/'', or by calling (415) 972-
3476.
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\20\ 2006 CWA 303(d) List.
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Of the 671 impairments, at least 162 are for pollutants commonly
associated with sewage, including nutrients, fecal coliform, and
pathogens. Pathogens alone account for approximately 120 miles of
impaired coast line in the State.
Table 2--California Marine Impaired Water Body Segments and TMDLs*
------------------------------------------------------------------------
Impairments
Impaired water Total pollutant associated with Approved TMDL
body segments impairments sewage
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222 671 162 79
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*2006 CWA 303(d) list.
Large Passenger Vessel Sewage Generation and Pollutants: Large
passenger vessels continue to increase in size and can now accommodate
as many as 6,300 passengers and 2,400 crew members.\21\ Because these
vessels generate large volumes of sewage, the State has requested that
all large passenger vessels of 300 gross tons or
[[Page 53919]]
greater, regardless of sewage holding capacity, be subject to the
proposed rule. As mandated by SB 771, in 2006 the California State
Lands Commission conducted a survey (2006 Vessel Survey) of large
passenger and large oceangoing vessels calling on California ports in
order to better understand vessel sewage generation and discharges.\22\
Based on the 33 large passenger vessels reporting, an average sized
passenger vessel holds nearly 2,900 passengers and crew (2,154 and 709
respectively). At a daily per person sewage generation rate of 8.4
gallons, an average sized large passenger vessel is capable of
generating as much as 24,360 gallons of sewage per day.\23\
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\21\ Royal Caribbean Press Release--Fast Facts Oasis of the
Seas/Allure of the Seas-https://www.oasisoftheseas.com/press-materials.php.
\22\ California State Lands Commission 2006 Vessel Survey data
was dictated under SB 771.
\23\ California State Lands Commission 2006 Vessel Survey
reported 33 large passenger vessels making port calls in California
with an average 709 crew and 2,154 passengers for an average of
2,864 people on board.
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In 2008, 48 large passenger vessels made 788 calls to California
ports and spent an average of one day in port per arrival.\24\ As
illustrated in Table 3, at an estimated 24,360 gallons per day and an
average stay of one day, these vessels could potentially generate 19.2
million gallons of treated sewage annually while in State marine
waters. EPA has no way of verifying how much treated large passenger
vessel sewage is actually discharged in State marine waters; this
depends on actual numbers of passengers and crew and how much treated
sewage is discharged to treatment facilities on land and/or held for
discharge outside State waters. However, it is likely that a
significant portion of this estimated 19.2 million gallons is in fact
currently being discharged in State waters. The intent of this proposed
rule is to prohibit all sewage generated from large passenger vessels
from entering State marine waters.
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\24\ Number and frequency of port calls for large passenger
vessels based on the January 27, 2009 State Application Addendum.
Table 3--California Large Passenger Vessel (LPV) Data for 2008
----------------------------------------------------------------------------------------------------------------
Estimated treated
Estimated sewage vessel sewage
LPVs* Passengers & Port calls* Average port generation (g/ generated while
crew** days** day)*** in State waters
(g/year)***
----------------------------------------------------------------------------------------------------------------
48 2,900 788 1 24,360 19,195,680
----------------------------------------------------------------------------------------------------------------
* State's January 27, 2009 Application Addendum.
** State Lands Commission 2006 Vessel Survey Data.
*** EPA calculations.
Treated sewage discharges from vessels generally contain higher
concentrations of pollutants than discharges of treated sewage from
land-based wastewater treatment plants and can cause or contribute to
water quality impairments and impacts to highly sensitive marine
habitats. This can be attributed to lower dilution rates for large
passenger vessel sewage discharges, especially in cases where these
vessels employ vacuum flushing and conveyance to reduce water use.
Based on data collected in 2000 for the Alaska Cruise Ship
Initiative (21 vessels), the average fecal coliform concentrations in
traditional Type II MSD effluent was 2.04 million MPN (most probable
number)/100 mL.\25\ As shown in Table 4, of the 92 samples collected,
51 exceeded EPA's performance standard for Type II effluent fecal
coliform count of 200 MPN/100 ml. Of the 92 samples collected, 35
exceeded 100,000 MPN/100 mL and 22 exceeded 1 million MPN/100 mL. The
range of fecal coliform concentrations ranged between <2 MPN/100 mL and
24 million MPN/100 mL. Based on these results, the average
concentration was as much as 20 times greater than un-treated municipal
wastewater (ranges from 10,000 to 100,000 MPN/100 mL) \26\ and over
10,000 times greater than the Federal MSD fecal coliform standard of
<200 MPN/100 mL.
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\25\ 2000 Alaska Cruise Ship Initiative, reported in 2008 EPA
Cruise Ship Discharge Assessment Report. Two of the 21 vessels
sampled were using reverse osmosis treatment systems.
\26\ 2003 Metcalf & Eddy Wastewater Engineering.
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EPA's 2008 Cruise Ship Discharge Assessment Report found that Type
II MSD effluent concentrations of fecal coliform also could lead to
exceedences of EPA's 2006 National Recommended Water Quality Criteria
(NRWQC) established for shellfish harvesting waters. This bacteria
standard States that median fecal coliform concentrations should not
exceed 14 MPN/100 mL, with not more than 10 percent of samples
exceeding 43 MPN/100 mL. EPA notes that these are ambient water quality
criteria not discharge standards, and that depending on the amount of
mixing, discharges exceeding the numeric level of the criterion at the
point of discharge would not necessarily lead to an exceedence of the
NRWQC. However, given the levels of fecal coliform in some of the
samples discussed above, sewage discharges from cruise ships could be
causing or contributing to violations of these NRWQC as well as State
water quality criteria. For example, California has adopted the NRWQC
for fecal coliform for shellfish in some coastal waters and for all
coastal waters has adopted criteria for contact recreation not to
exceed 200 MPN/100 mL with not more than 10 percent of samples
exceeding 400 MPN/100 mL.
For suspended solids, values detected in effluent from Type II MSDs
were substantially higher than levels that would generally be
considered to comply with narrative NRWQC land-based discharge
standards. Data for residual chlorine concentrations from Type II MSDs
and advanced wastewater treatment systems (AWTs) also exceeded levels
that would violate NWRQC standards if found in the ambient water. Site-
specific evaluations would be needed to determine whether these vessel
discharges would cause, have the potential to cause, or contribute to
non-attainment of water quality standards.\27\
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\27\ 2000 Alaska Cruise Ship Initiative, reported in 2008 EPA
Cruise Ship Discharge Assessment Report.
[[Page 53920]]
Table 4--Fecal Coliform Concentrations in Large Passenger Vessel
Effluent*
------------------------------------------------------------------------
Federal type
Number of II MSD Samples >200 Samples Samples
samples standard (MPN/ MPN/100 ml >100,000 MPN/ >1,000,000
100 ml) 100 ml MPN/100 ml
------------------------------------------------------------------------
92 <200 51 35 22
------------------------------------------------------------------------
* 2000 Alaska Cruise Ship Initiative, reported in 2008 EPA Cruise Ship
Discharge Assessment Report.
Some large passenger vessels, especially those traveling to Alaska,
have installed AWTs that provide sewage treatment effectiveness greater
than Type I and II MSDs; however, the extent to which vessels operating
in California waters operate AWTs is unknown. In 2006, 23 of 28 large
passenger vessels that operated in Alaskan waters had AWTs to treat
both sewage and graywater in order to meet the more stringent discharge
requirements in effect there. Analyses of sampling results from 2003-
2005 indicate that AWTs are very effective in removing pathogens,
oxygen demanding substances, suspended solids, oil and grease, and
particulate metals.\28\ AWTs can remove some of the dissolved metals,
and can remove most volatile and semi-volatile organics to levels below
detection limits but achieve moderate nutrient removals and do not
remove all contaminants. According to EPA study results of a
representative vessel, toxic pollutants such as ammonia, copper,
nickel, selenium, and zinc were still discharged at concentrations
above their toxicity criteria.\29\ Again, site specific evaluations
would be needed to determine whether these vessel discharges would
cause, have the potential to cause, or contribute to non-attainment of
water quality standards.
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\28\ Sampling results used include EPA sampled wastewater from
cruise ships in 2004 and 2005, cruise ship compliance monitoring
data for AWT effluent provided by the Alaska Department of
Environmental Conservation and the Coast Guard for 2003-2005, and
self-monitoring data for AWT effluent submitted by the cruise
industry in response to EPA's 2004 cruise ship survey.
\29\ March 2006, EPA Sampling Episode Report Princess Cruise
Lines--Island Princess, Sampling Episode 6505.
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This proposed rule would address anticipated increases in large
passenger vessel sewage discharges as the industry grows in future
years. In 2007, nearly 1.5 million passengers departed from California
ports making the State the second largest cruise market in the
nation.\30\ This is significant considering North America accounted for
more than 75 percent of the overall global cruise market in 2009.
According to the Cruise Lines International Association (CLIA), 14 new
passenger vessels were introduced globally in 2009, 12 will be
introduced in 2010, with a total of 23 on order between 2010 and
2012.\31\ Large passenger vessel traffic is increasing as average
annual growth of the global cruise industry has continued at almost
eight percent since 1980. At this rate, the number of cruise ship
passengers is expected to triple to 15 million by 2020, while the
current number of cruise ships globally is projected to double by
2020,\32\ which will significantly increase the number of vessel trips
in California marine waters.
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\30\ July 8, 2009 letter from Congress to Administrator Jackson.
\31\ CLIA Forecasts Continued Growth in Cruise Industry, January
12, 2010. https://www.travelpulse.com/Resources/Editorial.aspx?n=66206.
\32\ GlobalSecurity.org: https://www.globalsecurity.org/military/systems/ship/passenger-cruise.htm.
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Vessel Sewage Generated from Large Oceangoing Vessels with two days
or more sewage holding capacity: Table 5 provides data used to
determine sewage discharges from large oceangoing vessels with two days
or more sewage holding capacity. Based on 2006 Vessel Survey data,
approximately 35 percent of the 1,384 vessels reporting had two days or
more of sewage holding capacity.\33\ This represents the approximate
percentage of large oceangoing vessels that would likely be subject to
the proposed rule. According to the State's application, in 2008, 1,753
large oceangoing vessels made 9,620 port calls to California. Based on
the 2006 survey, 35 percent of those port calls (3,367 port calls)
would have been made by vessels that are subject to the proposed
rule.34, 35 Larger oceangoing vessels typically carry 15 to
25 crew members. The average, based on the 2006 Vessel Survey, was 21
crew members. The average port stay was two days. At an average rate of
8.4 g/person/day, an oceangoing vessel with an average sized crew would
generate approximately 176 gallons of sewage per day. EPA multiplied
the 176 g/day average sewage generation rate, with the estimated 3,367
annual port calls, and the average two-day port visit, to estimate that
large oceangoing vessels calling on California ports generate almost
1.2 million gallons of sewage per year. As with large passenger
vessels, EPA does not have data for determining how much of this sewage
is discharged in State marine waters, however it is likely to be a
significant portion. Unlike large passenger vessels, EPA does not have
treated sewage sampling data for large oceangoing vessels, but lacking
any data that would demonstrate otherwise, we assume that sewage from
large oceangoing vessels has similar pollutant concentrations as large
passenger vessels. The intent of the proposed rule is to prohibit all
treated sewage from large oceangoing vessels with adequate holding
capacity from being discharged to State marine waters.
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\33\ According to the California State Lands Commission 2006
Vessel Survey, 35 percent of vessels had sewage capacity of two days
or more. This was extrapolated to estimate sewage capacity of
vessels calling in 2008 as reported in the State's January 27, 2009
Application Addendum.
\34\ California State Lands Commission 2006 Vessel Survey.
\35\ January 27, 2009 State Application Addendum.
Table 5--California Oceangoing Vessel (LOV) Data for 2008
----------------------------------------------------------------------------------------------------------------
Port calls by Sewage
LOVs with Generated
LOVs* Port calls* sufficient Crew** Average port Sewage (g/ while in State
holding tank days** day)*** waters (g/
capacity*** year)***
----------------------------------------------------------------------------------------------------------------
1,753 9,620 3,367 21 2 176 1,185,184
----------------------------------------------------------------------------------------------------------------
* State's January 27, 2009 Application Addendum.
** State Lands Commission 2006 Vessel Survey Data.
[[Page 53921]]
*** EPA calculations.
Oceangoing vessel traffic is projected to increase significantly in
California marine waters. San Pedro Bay Ports in Los Angeles and Long
Beach comprise the highest volume port complex in the nation and
project a 44 percent increase in the volume of container throughput
between 2010 and 2020.\36\ Vessel container capacity will increase with
larger ships, but port calls are still projected to increase from
nearly 3,600 in 2007 to as many as 5,600 in 2020.\37\ The Port of
Oakland, the second highest volume port in the State and fourth in the
nation, hosted nearly 2,000 container ship calls in 2008 and is
forecast to increase cargo throughput approximately 5 percent each year
between now and 2017.\38\ This increase in vessel traffic will result
in increased generation of treated vessel sewage that could potentially
be discharged to State marine waters.
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\36\ San Pedro Bay Ports Long-Term Cargo Forecast, Mercer
Management Consulting, 2001.
\37\ Container Vessel Forecast for San Pedro Bay Ports, Mercator
Transport Group, 2000.
\38\ Port of Oakland Website: https://www.portofoakland.com.
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Vessels Not Covered by the NDZ: As described in Section IV of this
proposed rule, the State's application requested that the discharge
prohibitions be limited to a certain class of vessels. Vessels not
covered by the proposed rule include oceangoing vessels with less than
two days of sewage holding capacity, and vessels less than 300 gross
tons. Based on the State's 2006 Vessel Survey data and the number of
vessels calling to California ports in 2008, approximately 65 percent
(1,139) of the oceangoing vessels had less than two days of holding
capacity and would not be subject to the rule as proposed.\39\
Multiplying the estimated 176 g/day average sewage generation rate,
with the estimated 6,253 annual port calls, and the average two-day
port visit, EPA estimates that large oceangoing vessels without
adequate holding capacity generate approximately 2.2 million gallons of
sewage per year. The EPA and the State are aware that smaller vessels,
including recreational and smaller commercial vessels, also discharge
sewage to the State's coastal water. In deciding to request designation
of an NDZ applicable only to larger vessels as specified above, but
applicable to the entire California coast, the State legislature
determined that prohibiting discharge from the largest vessels would
provide a relatively efficient approach to reducing the vessel sewage
waste stream along the entire coast because these vessels generate a
significant amount of sewage compared to smaller vessels. Vessels
equipped with installed toilets are currently prohibited from
discharging untreated sewage in any navigable waters within 3 miles
from shore. Based on State estimates for 2006, approximately 80 percent
of the 841,000 recreational vessels in California did not have Type I
(flow through treatment device for vessels 65 feet or less) or Type II
MSDs and therefore would be prohibited from discharging sewage to State
marine waters.\40\ The remaining 20 percent (168,200) can discharge
treated sewage from their MSDs to State waters. Applying the State's
data for small vessel usage, two persons per vessel, an average of one
full ``recreation day'' (four 6-hour trips per year), and an 8.4
gallons of sewage per person per day, the total amount of treated
sewage potentially discharged from recreational vessels to State marine
waters in one year could amount to approximately 2.8 million gallons,
if all discharges were within State waters.\41\
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\39\ California State Lands Commission 2006 Vessel Survey.
\40\ January 27, 2009 State Application Addendum.
\41\ January 27, 2009 State Application Addendum.
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In addition to current MSD requirements, the ten NDZs previously
approved along the California coast address small vessel pollution in
high density recreational boating areas.\42\ Instead of seeking an NDZ
applicable to all vessels, the State legislation enacted companion
provisions designed to improve sewage pump out capacity and utilization
rates for vessel pump out facilities by recreational and small
commercial vessels as alternative approaches to reducing sewage
discharges from smaller vessels.
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\42\ USEPA No Discharge Zones for Vessel Sewage: https://www.epa.gov/region09/water/no-discharge/.
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VI. Effect on Current Vessel Sewage Controls
Today's proposed rule does not alter existing vessel sewage
discharge prohibitions in California waters. All existing NDZs in
California remain in effect for all vessels operating in those waters.
The proposed rule complements the discharge prohibitions recently
passed by NOAA for all four of California's NMSs. Those discharge
prohibitions were adopted pursuant to California's application to NOAA
and became effective March 9, 2009 for the Gulf of the Farallones,
Monterey Bay, and Cordell Bank National Marine Sanctuaries (74 FR 12088
(Mar. 23, 2009)) and March 19, 2009 for the Channel Islands National
Marine Sanctuary (74 FR 12087 (Mar. 23, 2009)). The new Sanctuary
management plans prohibit ``discharges/deposits of treated and
untreated sewage from vessels 300 gross registered tons or more, except
oceangoing ships without sufficient holding tank capacity to hold
sewage and graywater, respectively, while within the Sanctuary. Large
passenger vessels are not provided an exception and, therefore, are
prohibited from discharging/depositing treated or untreated sewage and
graywater in the Sanctuary.'' See Gulf of the Farallones National
Marine Sanctuary Regulations; Monterey Bay National Marine Sanctuary
Regulations; and Cordell Bank National Marine Sanctuary Regulations;
Final Rule, 73 FR 70488 (Nov. 20, 2008) and Channel Islands National
Marine Sanctuary Regulations; Final Rule, 74 FR 3216 (Jan. 16, 2009).
Like the Sanctuary prohibitions, today's proposed rule would not
require oceangoing vessels without sufficient holding tank capacity, as
defined, to hold treated vessel sewage while within State marine
waters.
The four California National Marine Sanctuaries cover over 33
percent of all California marine waters (nearly 38 percent with
proposed Cordell bank and Gulf of the Farallones expansions). This
proposal would cover all California waters. The discharge prohibitions
in California's National Marine Sanctuaries cover a total of 1,726
square miles of ocean (and would be expanded by almost 232 square miles
with the proposed expansions) in addition to nearly 30 square miles of
existing NDZs. In total, sewage discharges are currently prohibited
within 1,755 square miles of the 5,222 square miles of California
marine waters. Today's prohibition would apply to the entire 5,222
square miles.
Other Existing Vessel Pollutant Controls: Following several
confirmed sewage discharge violations, the Cruise Lines International
Association (CLIA), representing the 25 major cruise lines serving
North America, adopted voluntary industry standards to address cruise
industry waste management. Under the CLIA 2006 ``Cruise Industry Waste
Management Practices and Procedures'', Association members have agreed
to comply with requirements to process all sewage through an MSD
certified in accordance with U.S. or international regulations prior to
discharge. For ships that do not have
[[Page 53922]]
AWTs traveling regularly on itineraries beyond territorial coastal
waters, (CLIA) standards provide that discharge will take place only
when the ship is more than four miles from shore and when the ship is
traveling at a speed of not less than six knots (for vessels operating
under sail, or a combination of sail and motor propulsion, the speed
shall not be less than four knots). For vessels whose itineraries are
fully within U.S. territorial waters, CLIA standards provide that
discharge shall comply fully with U.S. and individual State legislation
and regulations.
To EPA's knowledge, CLIA voluntary measures are not monitored or
reported and the degree of compliance with these voluntary measures is
unknown. The State of California states that existing MSD requirements
and voluntary discharge limitations are not fully effective.\43\ While
the number of vessels actually discharging partially or untreated
sewage in State marine waters can only be estimated, the Government
Accountability Office 2000 report to Congress \44\ and the State
confirm discharges of untreated sewage from large passenger vessels and
other oceangoing vessels in State marine waters.
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\43\ April 5, 2006 State Application.
\44\ Marine Pollution, Progress Made to Reduce Marine Pollution
by Cruise Ships but Important Issues Remain, GAO 2000.
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A majority of large oceangoing 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 principal
international instrument regulating discharges of sewage from vessels
is Annex IV to MARPOL. While the United States is not a Party to MARPOL
Annex IV, and thus is not bound by its provisions, a vessel flying the
flag of a country who is a Party to Annex IV remains subject to the
Annex's requirements (as implemented and enforced by the flag State) no
matter where the vessel sails, including when the vessel is operating
in U.S. waters.
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). The Annex contains, among other
requirements, limits on the discharge of sewage into the sea, and
provisions for the survey and certification of a vessel's sewage
treatment device. 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 miles (nm) 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 nm
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;
or
The vessel is using a type-approved sewage treatment plant (STP)
that has been certified to meet the applicable International Maritime
Organization's recommendations and regulations, the test results are
laid down in the ship's International Sewage Pollution Prevention
Certificate, and the effluent does not produce visible floating solids
or cause discoloration of the surrounding water.
VII. Conclusion
EPA has reviewed the State's application for the establishment of
an NDZ, and other information summarized above, and has determined that
an NDZ is required to protect and enhance the quality of these waters.
As shown in Table 6, by prohibiting large passenger vessels and large
oceangoing vessels with two days or more of sewage holding tank
capacity from discharging sewage in State marine waters, a significant
pollutant waste stream of up to 20.4 million gallons of treated sewage
per year would be prohibited from waters that support a variety of
unique, nationally important and biologically significant environments
that contribute to California's recreational, economic, and aesthetic
values. As a result, improved water quality would likely benefit human
health by reducing pollutant exposure from recreation and provide
benefits to wildlife and their habitats, commercial fisheries and shell
bed operations, and water intakes for desalination plants.
Table 6--California Vessel Sewage Contributions and NDZ Prohibitions
----------------------------------------------------------------------------------------------------------------
Treated vessel sewage Treated vessel sewage
Sewage Source generation in State prohibited by this proposed
waters (gallons/year) NDZ (gallons/year)
----------------------------------------------------------------------------------------------------------------
Large Passenger Vessels............................ 19.2 million.............. 19.2 million.
Large Oceangoing Vessels (with two days or more 1.2 million............... 1.2 million.
sewage holding capacity).
Combined Large Passenger and Large Oceangoing 20.4 million.............. 20.4 million.
Vessels.
Not addressed by this rule
Large Oceangoing Vessels without holding 2.2 million............... No Change.
capacity.
Recreational Vessels........................... 2.8 million............... No Change.
Combined Large Oceangoing Vessels without 5 million................. No Change.
holding capacity and Recreational Vessels \45\.
----------------------------------------------------------------------------------------------------------------
\45\ The proposed rule would not apply to non-recreational oceangoing vessels less than 300 gross tons in size.
Insufficient data were available to estimate sewage generation from these smaller oceangoing vessels. Based on
a review of available data describing the sizes of oceangoing vessels operating in US ports, it appears very
few oceangoing vessels are less than 300 gross tons in size (see, e.g., Commercial Marine Activity for Deep
Sea Ports in the United States, EPA420-R-99-020, September, 1999). Therefore, we do not expect that sewage
discharges from oceangoing vessels less than 300 gross tons are significant in comparison with other types of
oceangoing vessels.
Section 312(f)(4)(A) states ``If the EPA Administrator determines
upon application by a State that the protection and enhancement of the
quality of specified waters within such State requires such a
prohibition, he
[[Page 53923]]
shall, by regulation completely prohibit the discharge from a vessel of
any sewage (whether treated or not) into such waters.'' This authority
has been delegated to EPA Regional Administrators. On April 5, 2006,
the California State Water Resources Control Board, pursuant to State
statutory mandates, req
