Final National Pollutant Discharge Elimination System (NPDES) Small Vessel General Permit for Discharges Incidental to the Normal Operation of Vessels Less Than 79 Feet, 53702-53707 [2014-21408]
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Federal Register / Vol. 79, No. 175 / Wednesday, September 10, 2014 / Notices
Business Information (CBI) or other
information whose disclosure is
restricted by statute.
FOR FURTHER INFORMATION CONTACT: Jack
Faulk, Water Permits Division, Office of
Water (4203M), Environmental
Protection Agency, 1200 Pennsylvania
Ave. NW., Washington, DC 20460;
telephone number: 202–564–0768;
email address: faulk.jack@epa.gov.
SUPPLEMENTARY INFORMATION:
Supporting documents which explain
in detail the information that the EPA
will be collecting are available in the
public docket for this ICR. The docket
can be viewed online at
www.regulations.gov or in person at the
EPA Docket Center, WJC West, Room
3334, 1301 Constitution Ave. NW.,
Washington, DC. The telephone number
for the Docket Center is 202–566–1744.
For additional information about EPA’s
public docket, visit https://www.epa.gov/
dockets.
Pursuant to section 3506(c)(2)(A) of
the Paperwork Reduction Act (44 U.S.C.
3501 et seq.), EPA is soliciting
comments and information to enable it
to: (i) Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the Agency, including
whether the information will have
practical utility; (ii) evaluate the
accuracy of the Agency’s estimate of the
burden of the proposed collection of
information, including the validity of
the methodology and assumptions used;
(iii) enhance the quality, utility, and
clarity of the information to be
collected; and (iv) minimize the burden
of the collection of information on those
who are to respond, including through
the use of appropriate automated
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses. EPA will consider the
comments received and amend the ICR
as appropriate. The final ICR package
will then be submitted to OMB for
review and approval. At that time, EPA
will issue another Federal Register
notice to announce the submission of
the ICR to OMB and the opportunity to
submit additional comments to OMB.
Abstract: In December 2003, a longstanding exclusion of discharges
incidental to the normal operation of
vessels from the NPDES program
became the subject of a lawsuit in the
U.S. District Court for the Northern
District of California (Northwest Envtl.
Advocates et al. v. United States EPA,
2005 U.S. Dist. LEXIS 5373 (N.D. Cal.
2005). The District Court issued a final
order in September 2006 providing that
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the blanket exemption for discharges
incidental to the normal operation of a
vessel, contained in 40 CFR § 122.3(a),
shall be vacated as of September 30,
2008. On July 23, 2008, the U.S. Ninth
Circuit Court of Appeals upheld the
District Court’s decision. This meant
that, effective December 19, 2008,
except for those vessels exempted from
NPDES permitting by congressional
legislation, discharges incidental to the
normal operation of vessels that were
excluded from NPDES permitting by 40
CFR § 122.3(a) were subject to the Clean
Water Act (CWA) section 301
prohibition against discharging, unless
authorized by an NPDES permit.
In late July 2008, Congress enacted
two pieces of legislation to exempt
discharges incidental to the normal
operation of certain types of vessels
from the need to obtain an NPDES
permit.
The first of these, entitled the Clean
Boating Act of 2008, amends the CWA
to provide that discharges incidental to
the normal operation of recreational
vessels are not subject to NPDES
permitting, and instead, creates a new
regulatory regime to be implemented by
EPA and the U.S. Coast Guard under the
new 312(o) of the CWA. S. 2766, Pub.
L. 110–188 (July 29, 2008).
The second piece of legislation
provided for a temporary moratorium on
NPDES permitting for discharges, except
for ballast water, subject to the 40 CFR
§ 122.3(a) exclusion from (1)
commercial fishing vessels (as defined
in 46 U.S.C. § 2101 and regardless of
size) and (2) from those other nonrecreational vessels less than 79 feet in
length. S. 3298, Pub. L/10–299 (July 31,
2008). The statute’s NPDES permitting
moratorium ran for a two-year period
beginning on its July 31, 2008
enactment date, during which time EPA
was to study the relevant discharges and
submit a report to Congress. EPA
finalized this Report to Congress,
entitled ‘‘Study of Discharges Incidental
to Normal Operation of Commercial
Fishing Vessels and Other NonRecreational Vessels Less Than 79 Feet’’
in August 2010 (EPA, 2010), a copy of
which is available on EPA’s Web site at
https://www.epa.gov/npdes/vessels. The
moratorium was subsequently extended
to December 18, 2013 by P.L. 111–215
and further extended to December 18,
2014 by the Coast Guard and Maritime
Transportation Act of 2012 (H.R. 2838)
signed on December 20, 2012 (Pub. L.
112–213).
On December 8, 2011, EPA published
the draft permit in the Federal Register
and the Agency published the final
Small Vessel General Permit (sVGP) also
in today’s Federal Register to ensure
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that NPDES permit coverage is available
for those vessels currently excluded
from permitting by that moratorium.
This ICR calculates the burden and
costs associated with the NPDES
program, identifies the types of
activities regulated under the NPDES
program, and describes the roles and
responsibilities of the Agency associated
with the sVGP.
Form numbers: None.
Respondents/affected entities: Entities
potentially affected by this action are
owners/operators of commercial fishing
vessels and non-recreational, nonmilitary vessels less than 79 feet in
length that are operating as a means of
transportation with incidental
discharges to waters of the United
States.
Respondent’s obligation to respond:
required for owners/operators needing
to obtain or retain the benefit of permit
coverage under the sVGP.
Estimated number of respondents:
137,739 (total).
Frequency of response: Once,
annually as needed, quarterly.
Total estimated burden: 138,597
hours (per year). Burden is defined at 5
CFR 1320.03(b).
Total estimated cost: $5,064,298 (per
year), includes $0 annualized capital or
operation & maintenance costs.
Changes in estimates: This is a new
information collection.
Dated: August 29, 2014.
Sheila E. Frace,
Acting Director, Office of Wastewater
Management.
[FR Doc. 2014–21402 Filed 9–9–14; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OW–2011–0150; FRL–9916–36–
OW]
Final National Pollutant Discharge
Elimination System (NPDES) Small
Vessel General Permit for Discharges
Incidental to the Normal Operation of
Vessels Less Than 79 Feet
Environmental Protection
Agency.
ACTION: Notice of final permit issuance.
AGENCY:
Environmental Protection
Agency (EPA) Regions 1, 2, 3, 4, 5, 6, 7,
8, 9, and 10 are finalizing the NPDES
Small Vessel General Permit (sVGP) to
authorize discharges incidental to the
normal operation of non-military and
non-recreational vessels less than 79
feet in length. EPA is finalizing the
sVGP, which has an effective date of
SUMMARY:
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December 19, 2014, to authorize
discharges from vessels less than 79 feet
in length, because the law imposing a
moratorium against NPDES permitting
of these discharges expires on December
18, 2014. That law generally provides
that no NPDES permits shall be required
for discharges (except discharges of
ballast water) incidental to the normal
operation of vessels less than 79 feet
and all commercial fishing vessels.
EPA provided notice of the
availability of the draft permit and
accompanying fact sheet for public
comment in the Federal Register on
December 8, 2011.
DATES: This permit is effective on
December 19, 2014.
In accordance with 40 CFR part 23,
this permit shall be considered issued
for the purpose of judicial review on the
day 2 weeks after Federal Register
publication. Under section 509(b) of the
Clean Water Act, judicial review of this
general permit can be had by filing a
petition for review in the United States
Court of Appeals within 120 days after
the permit is considered issued for
purposes of judicial review. Under
section 509(b)(2) of the Clean Water Act,
the requirements in this permit may not
be challenged later in civil or criminal
proceedings to enforce these
requirements. In addition, this permit
may not be challenged in other agency
proceedings. This permit also provides
additional dates for compliance with the
terms of the permit.
FOR FURTHER INFORMATION CONTACT: For
further information on the sVGP,
contact Jack Faulk at (202) 564–0768 or
Ryan Albert at (202) 564–0763, or at
EPA Headquarters, Office of Water,
Office of Wastewater Management, Mail
Code 4203M, 1200 Pennsylvania Ave,
NW., Washington DC 20460; or email at
vgp@epa.gov.
SUPPLEMENTARY INFORMATION: This
supplementary information is organized
as follows:
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Table of Contents
I. General Information
A. Does this action apply to me?
B. How can I get copies of these documents
and other related information?
C. Public Outreach: Public Hearings and
Public Meetings, Web Casts
D. Who are the EPA regional contacts for
this permit?
II. Statutory and Regulatory History
III. Scope and Applicability of the 2014 sVGP
A. CWA Section 401 Certification and
Coastal Zone Management Act
B. Geographic Coverage of sVGP
C. Categories of Vessels Covered Under the
sVGP
D. Summary of the sVGP
E. Summary of Significant Changes from
the Proposed sVGP
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IV. Analysis of Economic Impacts of sVGP
A. Costs of the sVGP
B. Benefits of the sVGP
V. Executive Orders 12866 and 13563
I. General Information
A. Does this action apply to me?
This action applies to vessels less
than 79 feet in length operating in a
capacity as a means of transportation
that have discharges incidental to their
normal operation into waters subject to
this permit, except recreational vessels
as defined in Clean Water Act (CWA)
section 502(25) and vessels of the
Armed Forces as defined in CWA
section 312(a)(14). Affected vessels are
henceforth referred to as non-military,
non-recreational vessels. Unless
otherwise excluded from coverage by
Part 5 of the sVGP, the waters subject to
this permit are waters of the U.S. as
defined in 40 CFR 122.2. That provision
defines ‘‘waters of the U.S.’’ as certain
inland waters and the territorial sea,
which extends three miles from the
baseline. More specifically, CWA
section 502(8) defines ‘‘territorial seas’’
as ‘‘the belt of the seas measured from
the line of the ordinary low water along
that portion of the coast which is in
direct contact with the open sea and the
line marking the seaward limit of inland
waters, and extending seaward a
distance of three miles.’’ Note that the
Clean Water Act does not require
NPDES permits for vessels or other
floating craft operating as a means of
transportation beyond the territorial
seas, i.e., in the contiguous zone or
ocean as defined by the CWA sections
502(9), (10). See CWA section 502(12)
and 40 CFR 122.2 (definition of
‘‘discharge of a pollutant’’). This permit,
therefore, does not apply in such waters.
Non-military, non-recreational vessels
greater than 79 feet in length operating
in a capacity as a means of
transportation that need NPDES
coverage for their incidental discharges
will generally be covered under the VGP
(78 FR 21938, April 12, 2013). Similarly
situated vessels less than 79 feet in
length may be covered under the VGP,
or may instead opt for coverage under
the sVGP. Commercial fishing vessels
greater than 79 feet in length are not
eligible for coverage under the sVGP but
can be covered under the VGP should
they need to do so (e.g., after expiration
of the moratorium from permit
requirements for these vessels).
B. How can I get copies of these
documents and other related
information?
1. Docket. EPA has established an
official public docket for this action:
Docket ID No. EPA–HQ–OW–2011–
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53703
0150. The official public docket is the
collection of materials, including the
administrative record required by 40
CFR 124.18, for the final permit. It is
available for public viewing at the Water
Docket in the EPA Docket Center, (EPA/
DC) EPA West, Room 3334, 1301
Constitution Ave. NW., Washington, DC
20460. Although all documents in the
docket are listed in an index, some
information may not be publicly
available, i.e., Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Publicly available docket materials are
available electronically through https://
www.regulations.gov and in hard copy
at the EPA Docket Center Public
Reading Room, open from 8:30 a.m. to
4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone
number for the Public Reading Room is
(202) 566–1744 and the telephone
number for the Water Docket is (202)
566–2426.
2. Electronic Access. You may access
this Federal Register document
electronically at https://
www.federalregister.gov.
An electronic version of the public
docket is available through the Federal
Docket Management System (FDMS)
found at https://www.regulations.gov.
You may use the FDMS to view public
comments, access the index listing of
the contents of the official public
docket, and access those documents in
the public docket that are available
electronically. Once at the Web site,
enter the appropriate Docket ID No. in
the ‘‘Search’’ box to view the docket.
Certain types of information will not
be placed in the EPA dockets.
Information claimed as CBI and other
information whose disclosure is
restricted by statute, which is not
included in the official public docket,
will not be available for public viewing
in EPA’s electronic public docket. EPA
policy is that copyrighted material will
not be placed in EPA’s electronic public
docket but will be available only in
printed, paper form in the official public
docket. Although not all docket
materials may be available
electronically, you may still access any
of the publicly available docket
materials through the docket facility
identified in this section.
C. Public Outreach: Public Hearings and
Public Meetings, Web Casts
Because EPA anticipated a significant
degree of public interest in the draft
sVGP and the draft VGP, EPA held a
public hearing on Wednesday January
11, 2012, to receive public comment and
answer questions concerning the draft
permits. The hearing was held at EPA
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East Room 1153, 1201 Constitution Ave.
NW., Washington DC 20460. In
addition, EPA held a public meeting on
Monday January 23, 2012, at the Ralph
H. Metcalfe Federal Building, Room
331, 77 West Jackson Blvd., Chicago, IL
60604. The purpose of those meetings
was to present the proposed
requirements of these two draft general
permits and the basis for those
requirements, as well as to answer
questions concerning the draft permits.
The public meetings and public hearing
were attended by a wide variety of
stakeholders including representatives
from industry, government agencies,
and environmental organizations. In
addition, EPA held a webcast on
January 19, 2012, and two online
Question and Answer sessions on
January 31 and February 7, 2012, to
provide information on the proposed
permits and to answer questions from
interested parties that were unable to
attend the public meetings or hearing.
D. Who are the EPA regional contacts
for this permit?
For EPA Region 1, contact John Nagle
at tel.: (617) 918–1054; or email at
nagle.john@epa.gov; or at US EPA,
Region 1, New England/Office of
Ecosystem Protection, 5 Post Office
Square, Suite 100, Mail Code: OEP 06–
1, Boston, MA 02109–3912.
For EPA Region 2 in New York and
New Jersey, contact Patricia Pechko at
tel.: (212) 637–3796; or email at
pechko.patricia@epa.gov; or at US EPA,
Region 2, 290 Broadway, 24th Floor,
New York, NY 10007–1866 or for EPA
Region 2 in Puerto Rico and the Virgin
Islands, contact Sergio Bosques at tel.:
(787) 977–5838; or email at
bosques.sergio@epa.gov; or at US EPA
Region 2, Caribbean Environmental
Protection Division, City View Plaza II—
Suite 7000, 48 Rd. 165 Km 1.2,
Guaynabo, Puerto Rico 00968–8069.
For EPA Region 3, contact Mark
Smith at tel.: (215) 814–3105; or email
at smith.mark@epa.gov; or at US EPA,
Region 3, 1650 Arch St., Mail Code:
3WP41, Philadelphia, PA 19103–2029.
For EPA Region 4, contact Karrie-Jo
Robinson at tel.: (404) 562–9308; or
email at robinson.karrie-jo@epa.gov; or
Kip Tyler at 404–562–9294 or email at
tyler.kip@epa.gov; or at US EPA, Region
4/Water Permits Division, Atlanta
Federal Center, 61 Forsyth St. SW.,
Atlanta, GA 30303–3104.
For EPA Region 5, contact Sean
Ramach at tel.: (312) 886–5284; or email
at ramach.sean@epa.gov; or US EPA,
Region 5, 77 W Jackson Blvd., Mail
Code: WN16J, Chicago, IL 60604–3507.
For EPA Region 6, contact Jenelle Hill
at tel.: (214) 665–9737; or email at
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hill.jenelle@epa.gov; or at US EPA,
Region 6, 1445 Ross Ave., Suite 1200,
Dallas, TX 75202–2733.
For EPA Region 7, contact Alex
Owutaka at tel.: (913) 551–7584; or
email at owutaka.alex@epa.gov; or at US
EPA, Region 7, 11201 Renner
Boulevard, Lenexa, Kansas 66219.
For EPA Region 8, contact Lisa
Luebke at tel.: (303) 312–6256; or email
at luebke.lisa@epa.gov; or at US EPA,
Region 8, 1595 Wynkoop St., Mail Code:
8P–W–WW, Denver, CO 80202.
For EPA Region 9, contact Eugene
Bromley at tel.: (415) 972–3510; or email
at bromley.eugene@epa.gov; or at US
EPA, Region 9, 75 Hawthorne St., San
Francisco, CA 94105–3901.
For EPA Region 10, contact Cindi
Godsey at tel.: (206) 553–1676; or email
at godsey.cindi@epa.gov; or at US EPA,
Region 10, 1200 6th Avenue, Suite 900,
Seattle, WA 98101.
II. Statutory and Regulatory History
The Clean Water Act (CWA) section
301(a) provides that ‘‘the discharge of
any pollutant by any person shall be
unlawful’’ unless the discharge is in
compliance with certain other sections
of the Act. 33 U.S.C. 1311(a). The CWA
defines ‘‘discharge of a pollutant’’ as
‘‘(A) any addition of any pollutant to
navigable waters from any point source,
(B) any addition of any pollutant to the
waters of the contiguous zone or the
ocean from any point source other than
a vessel or other floating craft.’’ 33
U.S.C. 1362(12). A ‘‘point source’’ is a
‘‘discernible, confined and discrete
conveyance’’ and includes a ‘‘vessel or
other floating craft.’’ 33 U.S.C. 1362(14).
The term ‘‘pollutant’’ includes, among
other things, ‘‘garbage . . . chemical
wastes . . . and industrial, municipal,
and agricultural waste discharged into
water.’’ The Act’s definition of
‘‘pollutant’’ specifically excludes
‘‘sewage from vessels or a discharge
incidental to the normal operation of a
vessel of the Armed Forces’’ within the
meaning of CWA section 312. 33 U.S.C.
1362(6).
One way a person may discharge a
pollutant without violating the CWA
section 301 prohibition is by obtaining
authorization to discharge (referred to
herein as ‘‘coverage’’) under a CWA
section 402 National Pollutant
Discharge Elimination System (NPDES)
permit (33 U.S.C. section 1342). Under
CWA section 402(a), EPA may ‘‘issue a
permit for the discharge of any
pollutant, or combination of pollutants,
notwithstanding section 1311(a)’’ upon
certain conditions required by the Act.
Historically, EPA had not required
NPDES permits for discharges
incidental to the normal operation of a
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vessel; however, on July 23, 2008, the
United States Ninth Circuit Court of
Appeals upheld a lower court decision
that the Agency’s approach to exclude
these discharges from permitting
exceeded the Agency’s authority to do
so under the Clean Water Act.
Northwest Envtl. Advocates et al. v.
United States EPA, 2006 U.S. Dist.
LEXIS 69476 (N.D. Cal. 2006). This
decision prompted EPA and Congress to
take several actions. For larger vessels
(i.e., greater than 79 feet in length), EPA
issued the Vessel General Permit (VGP)
in late 2008 to provide a mechanism for
these vessels to comply with CWA
permitting obligations. For smaller
vessels and commercial fishing vessels,
Congress enacted Public Law (Pub. L.)
110–299 to provide a two-year
permitting moratorium to allow time for
EPA to study discharges from these
vessels and provide a Report to
Congress (‘‘Study of Discharges
Incidental to Normal Operation of
Commercial Fishing Vessels and Other
Non-Recreational Vessels Less Than 79
Feet,’’ August 2010). Congress has
subsequently extended the permitting
moratorium for smaller vessels and
commercial fishing vessels through
December 18, 2014. (Pub. L. 111–215
and Pub. L. 112–213).
The Small Vessel General Permit
(sVGP), as finalized, is a mechanism for
EPA to provide coverage for discharges
incidental to the normal operation of
non-military and non-recreational
vessels less than 79 feet in length once
the discharge moratorium ends on
December 18, 2014. All discharges
incidental to the normal operation of a
vessel less than 79 feet, when that vessel
is operating in capacity as a means of
transportation, are eligible for coverage
under this permit.
EPA is issuing this permit in advance
of the date permit coverage is required
to give small vessel owners and
operators time to read and prepare for
these new permit requirements.
III. Scope and Applicability of the 2014
sVGP
A. CWA Section 401 Certification and
Coastal Zone Management Act
EPA may not issue a permit
authorizing discharges into the waters of
a state until that state has granted
certification under CWA section 401 or
has waived its right to certify (or been
deemed to have waived). 33 U.S.C.
1341(a)(1); 40 CFR 124.53(a). EPA gave
each state, tribe, and territory as
applicable over nine months to certify,
well over the 60 day regulatory norm for
NPDES permits. EPA found that this 401
certification had unusual circumstances
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which warranted additional time (e.g.,
the permits regulate discharges of
mobile point sources; they have broad
applicability to the waters of every state
and tribe in the country). If a state
believed that any permit condition(s)
more stringent than those contained in
the draft permit were necessary to meet
the applicable requirements of either the
CWA or state law, the state had an
opportunity to include those
condition(s) in its certification. 40 CFR
124.53(e)(1). Twenty-three states and
one Indian tribe provided such
conditions in their certifications, and
EPA has added them to the sVGP
pursuant to CWA section 401(d). 33
U.S.C. 1341(d).
Similarly, EPA may not authorize
discharges under a general permit into
waters of a State if the State objects with
EPA’s National Consistency
Determination, pursuant to the
regulations implementing of the Coastal
Zone Management Act (‘‘CZMA’’),
specifically the regulations at 15 CFR
930.31(d) and 930.36(e). If the State
coastal zone management agency objects
to the general permit, then the general
permit is not available for use by
potential general permit users in that
State unless the applicant who wants to
use the general permit provides the
State agency with the applicant’s
consistency determination and the State
agency concurs. 15 CFR 930.31(d). The
National Oceanic and Atmospheric
Administration (NOAA) has explained
that ‘‘a State objection to a consistency
determination for the issuance of a
general permit would alter the form of
CZMA compliance required,
transforming the general permit into a
series of case by case CZMA decisions
and requiring an individual who wants
to use the general permit to submit an
individual consistency certification to
the State agency in compliance with 15
CFR part 930.’’ 71 FR 788, 793. No state
objected to EPA’s national consistency
determination.
B. Geographic Coverage of sVGP
The sVGP is applicable to discharges
incidental to the normal operation of a
vessel (identified in Part 1.4 of the sVGP
and section 3.6 of the sVGP fact sheet)
into waters subject to these permits,
which means ‘‘waters of the U.S.’’ as
defined in 40 CFR 122.2, except as
otherwise excluded by Part 5 of the
permit. This includes the territorial
seas, defined in section 502(8) of the
CWA, extending to three miles from the
baseline. Pacific Legal Foundation v.
Costle, 586 F.2d 650, 655–656 (9th Cir.
1978); Natural Resources Defense
Council, Inc. v. U.S. EPA, 863 F.2d
1420, 1435 (9th Cir. 1988).
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The general permit will cover vessel
discharges into the waters of the U.S. in
all states and territories, regardless of
whether a state is authorized to
implement other aspects of the NPDES
permit program within its jurisdiction,
except as otherwise excluded by Part 5
of the sVGP. While, pursuant to CWA
section 402(c), EPA typically is required
to suspend permit issuance in
authorized states, EPA may issue
NPDES permits in authorized states for
discharges incidental to the normal
operation of a vessel because 402(c)(1)
of the Clean Water Act prohibits EPA
from issuing permits in authorized
states only for ‘‘those discharges subject
to [the state’s authorized] program.’’
Discharges formerly excluded under 40
CFR 122.3 are not ‘‘subject to’’
authorized state programs. The vessel
discharges that will be covered by the
permit are discharges formerly excluded
from NPDES permitting programs under
40 CFR 122.3. (See discussion of the
vacatur of this exclusion above.)
Therefore the discharges at issue are not
considered a part of any currently
authorized state NPDES program. See 40
CFR 123.1(i)(2) (where state programs
have a greater scope of coverage than
‘‘required’’ under the federal program,
that additional coverage is not part of
the authorized program) and 40 CFR
123.1(g)(1) (authorized state programs
are not required to prohibit point source
discharges exempted under 40
CFR122.3).
C. Categories of Vessels Covered Under
the sVGP
The sVGP applies to discharges
incidental to the normal operation of
non-military, non-recreational vessels
less than 79 feet (unless a vessel elects
for coverage under the VGP instead).
The discharges eligible for coverage
under this permit are those covered by
the former exclusion in 40 CFR 122.3(a)
prior to its vacatur.
D. Summary of the sVGP
EPA is today finalizing the sVGP for
vessels less than 79 feet. EPA is
finalizing the sVGP to provide coverage
for vessels less than 79 feet in length
because the Public Law (Pub. L.) 110–
299 NPDES permitting moratorium
(subsequently extended by Pub. L. 111–
215 and Pub. L. 112–213) expires on
December 18, 2014. EPA recognizes that
small commercial vessels are different
in operation than larger commercial
vessels, generally have fewer discharge
types, and that owner/operators of
smaller vessels have particularized
expertise and different resources
available to manage their vessels than
owner/operators of larger vessels.
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53705
Hence, the sVGP is structured
differently for this class of permittees.
The sVGP will not require the vessel
owner or operator to submit a Notice of
Intent (NOI) to receive permit coverage.
However, as with vessels not required to
submit an NOI under the 2013 VGP,
sVGP permittees are required to
complete and keep a Permit
Authorization and Record of Inspection
(PARI) form onboard their vessel at all
times (either in paper form or
electronically). EPA also notes that
vessel owner/operators of vessels less
than 79 feet may choose whether they
wish to seek coverage under the sVGP
or the VGP. The PARI form, different
forms for the sVGP and VGP, will
document under which permit the
owner/operator has sought coverage.
The discharges covered in the sVGP are
categorized into several broad categories
listed in the permit and include:
common-sense requirements for general
discharges, fuel management, engine
and oil control, solid and liquid waste
management, deck washdown and
runoff and above water line hull
cleaning, vessel hull maintenance,
graywater, fish hold effluent, ballast
water, and overboard cooling water
discharges. The sVGP includes nonnumeric effluent limits in the form of
Best Management Practices (BMPs),
which were developed for these
discharges because EPA has determined
that it is infeasible to calculate numeric
effluent limits at this time. The BMPs
are designed to minimize the amount of
any discharge produced as well as
reduce the likelihood the discharge
would enter a waterbody. EPA
determined that for most small vessel
discharges, minimization of pollutants
in discharges can be achieved without
using highly engineered, complex
treatment systems. The sVGP also
requires the owner/operator to inspect
the vessel quarterly and take any
corrective action, as necessary, and
certify to such on the PARI form each
year.
E. Summary of Significant Changes
From the Proposed sVGP
EPA received comments from more
than 70 commenters and based on those
comments, the Agency made a number
of revisions to the proposed permit as
reflected in today’s action. Significant
changes from the proposed permit are
summarized below and discussed in
more detail in the permit fact sheet and
in the response to comments document
available in the docket (Docket ID No.
EPA–HQ–OW–2011–0150 accessible at
https://www.regulations.gov):
1. Removed the requirement that only
vessels with less than 8 cubic meters of
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ballast water are eligible for sVGP
coverage.
2. Added a provision that, when
feasible and safe, operators must use
ballast water pumps instead of gravity
draining to empty these tanks.
3. Defined what it means for an
environmentally acceptable lubricant
(EAL) to be ‘‘technically infeasible’’ for
a vessel to use as the term is used in the
permit describing when EALs may not
be required and added the Swedish
Standard SS 155434, Convention for the
Protection of the Marine Environment of
the North-East Atlantic (OSPAR)
requirements, and EPA’s Design for the
Environment (DfE) to the list of
acceptable labeling programs for EALs.
4. Clarified the prohibition against
discharging unused bait overboard is
specific to unused ‘‘live’’ bait from a
different water body.
5. Added a condition that
accumulated bilgewater must be
removed, to the extent practicable, prior
to transporting a vessel from one
waterbody to another over land.
6. Added a prohibition against using
any other organotin compound (beyond
an absolute prohibition of tributyl tin)
as a hull coating except in certain
instances.
7. Clarified vessel hull cleaning
should not be done within 90 days of
painting, unless the vessel’s hull is
‘‘substantially fouled’’ and that cleaning
of hulls does not necessarily have to
done using ‘‘only soft sponges.’’
8. Clarified that discharges from
continuous ‘‘once-through’’ ambient
water used for keeping the catch alive
during transit is not subject to the
permit requirements for discharging to
shore-based facilities.
9. Clarified that ‘‘periodic’’
inspections of the engine and of the hull
are to be done at least quarterly.
10. Clarified that any problems
identified during the quarterly visual
inspection or when inspecting fuel and
hydraulic systems for damage or leaks
must be corrected as soon as possible.
11. Added a condition that a quarterly
inspection is not required on vessels
that are not in the water for that quarter
but this must be documented on the
PARI form for that quarter.
12. Added definitions for several
terms used in the permit, including
‘‘ballast tank,’’ ‘‘ballast water,’’ ‘‘ballast
water capacity,’’ ‘‘fish hold,’’
‘‘minimally-toxic,’’ ‘‘minimally-toxic
soaps, cleaners, and detergents,’’
‘‘minimize,’’ ‘‘not bioaccumulative,’’
‘‘seafood processing,’’ and ‘‘sewage from
vessels.’’
13. Added State and Tribal-specific
requirements for 21 states and one tribe,
pursuant to CWA § 401, to the permit.
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19:04 Sep 09, 2014
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IV. Analysis of Economic Impacts of
sVGP
A. Costs of the sVGP
EPA estimates that between 115,000
and 138,000 vessels are potentially
affected by the sVGP requirements. The
establishments that own and operate
vessels that will be subject to the sVGP
are primarily associated with the fishing
and water transportation industries, and
with the oil and gas sector within the
mining industry. To estimate the effect
of sVGP requirements on an industry as
a whole, EPA’s analysis takes into
account previous conditions and
determines how the industry would act
in the future in the absence of permit
requirements. The baseline for this
analysis is full industry compliance
with existing federal and state
regulations and with current industry
practices or standards that exceed
current regulations to the extent that
they can be empirically observed. EPA
estimated potential compliance costs to
vessels associated with each of the
practices and discharge categories
identified in the sVGP, and with the
inspection and recordkeeping
requirements. Overall, EPA finds that
sVGP requirements could result in total
annual incremental costs for domestic
vessels ranging between $7.1 million
and $16.9 million (2010$) in the
aggregate. This includes the paperwork
burden costs and the incremental costs
of all practices for applicable discharge
categories. Per vessel incremental
compliance costs average between $17
and $133 per year, depending on the
number of applicable discharge
categories and baseline practices.
To evaluate economic impacts of
sVGP requirements on the affected
industries, EPA performed a firm-level
analysis. The firm-level analysis
examines the impact of incremental
costs per vessel to comply with the
sVGP requirements on model firms that
represent the financial conditions of
‘‘typical’’ businesses in each of the
examined industry sectors. Since nearly
all firms in the affected industries are
small, the firm-level analysis focuses on
assessment of impacts on small
businesses. Further, given the
distribution of revenue among firms in
the affected industry sectors, which
suggests a relatively greater potential for
impacts to small firms in the
commercial fishing industry, EPA
looked more specifically at this industry
when assessing the significance of
impacts. To evaluate the potential
impact of the sVGP on small entities,
EPA used a cost-to-revenue test to
evaluate the potential severity of
economic impact on vessels and
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facilities owned by small entities. The
test calculates annualized pre-tax
compliance cost as a percentage of total
revenues and uses a threshold of 1 and
3 percent to identify facilities that
would be significantly impacted as a
result of this permit. Because the impact
of sVGP compliance is likely to be most
significant for firms at the lower end of
the firm size spectrum, the analysis
focused on firms in the smallest revenue
category in each industry. The results of
this test provide estimated compliance
cost thresholds that range between $331
and $680 per year (1%) and between
$994 and $2,040 per year (3%),
depending on the industry. The
estimated sVGP compliance costs ($17
to $133 per year) are well below these
thresholds. Based on this firm-level
analysis using the average
characteristics of firms in the lowest
revenue category, EPA concludes that
the sVGP will not have a significant
economic impact on a substantial
number of small entities based on
information showing that firms would
have lower compliance costs than
would exceed the 1 percent cost-torevenue threshold under high-end cost
assumptions.
B. Benefits of the sVGP
Although EPA was unable to evaluate
the expected benefits of the permit in
dollar terms due to data limitations, the
Agency collected and considered
relevant information to enable
qualitative consideration of ecological
benefits and to assess the importance of
the ecological gains from the revisions.
EPA expects that reductions in vessel
discharges will benefit society in two
broad categories: (1) Enhanced water
quality from reduced pollutant
discharges and (2) reduced risk of
invasive species introduction.
Because many of the nation’s busiest
ports are considered to be impaired by
a variety of pollutants found in vessel
discharges, reducing pollutant loadings
from these discharges is expected to
have benefits associated with the
reduction of concentrations of nutrients,
metals, oil, grease, and toxics in waters
with high levels of vessel traffic.
V. Executive Orders 12866 and 13563
Under Executive Order 12866 (58 FR
51735 (October 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 Executive
Orders 12866 and 13563 (76 FR 3821)
and any changes made in response to
OMB recommendations have been
documented in the docket for this
action.
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Federal Register / Vol. 79, No. 175 / Wednesday, September 10, 2014 / Notices
Authority: Clean Water Act, 33 U.S.C. 1251
et seq.
Dated: August 21, 2014.
Deborah A. Szaro,
Deputy Regional Administrator, EPA Region
1.
Dated: August 21, 2014.
Joan Leary Matthews,
Director, Clean Water Division, EPA Region
2.
Dated: August 21, 2014.
Jose C. Font,
Director, Caribbean Environmental Protection
Division, EPA Region 2.
Dated: August 21, 2014.
Jon M. Capacasa,
Director, Water Protection Division, EPA
Region 3.
Dated: August 21, 2014.
Gail D. Mitchell,
Deputy Director, Water Protection Division,
EPA Region 4.
Dated: August 21, 2014.
Timothy C. Henry,
Deputy Director, Water Division, EPA Region
5.
Dated: August 21, 2014.
James R. Brown,
Acting Deputy Director, Water Quality
Protection Division, EPA Region 6.
Dated: August 21, 2014.
Karen Flournoy,
Director, Water, Wetlands, and Pesticides
Division, EPA Region 7.
Dated: August 21, 2014.
Darcy O’Connor,
Acting Assistant Regional Administrator,
Office of Partnerships and Regulatory
Assistance, EPA Region 8.
Dated: August 21, 2014.
Nancy Woo,
Associate Director, Water Division, EPA
Region 9.
Dated: August 21, 2014.
Daniel Opalski,
Director, Office of Water and Watersheds,
EPA Region 10.
I. General Information
A. Does this action apply to me?
[FR Doc. 2014–21408 Filed 9–9–14; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OPP–2014–0301; FRL–9915–79]
tkelley on DSK3SPTVN1PROD with NOTICES
Availability of Stipulated Injunction in
Northwest Center for Alternatives to
Pesticides v. EPA litigation
Environmental Protection
Agency (EPA).
ACTION: Notice.
AGENCY:
This notice announces to the
public the availability of an Order
(stipulated injunction) issued by the
SUMMARY:
VerDate Mar<15>2010
19:04 Sep 09, 2014
Jkt 232001
U.S. District Court for the Western
District of Washington that, among other
things, would reinstitute streamside nospray buffer zones to protect endangered
or threatened Pacific salmon and
steelhead in California, Oregon, and
Washington. The stipulated injunction,
issued on August 15, 2014, settles
litigation brought against EPA by the
Northwest Center for Alternatives to
Pesticides (NCAP) and others. These
buffers were originally established by
the same court in prior litigation
brought against EPA by the Washington
Toxics Coalition (WTC) and others. Like
the original buffer zones, the limitations
in this stipulated injunction are part of
a court order but are not to be
enforceable as labeling requirements
under the Federal Insecticide, Fungicide
and Rodenticide Act (FIFRA). The nospray buffer zones will apply to the
pesticides carbaryl, chlorpyrifos,
diazinon, malathion, and methomyl.
These buffers will remain in place until
EPA implements any necessary
protections for Pacific salmon and
steelhead based on reinitiated
consultations with the National Marine
Fisheries Service (NMFS). EPA is
reevaluating these pesticides in
connection with its current FIFRA
registration review process and the
stipulated injunction reinstitutes the
buffers in the interim.
FOR FURTHER INFORMATION CONTACT:
Anita Pease, Environmental Fate and
Effects Division (7507P), Office of
Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania
Ave. NW., Washington, DC 20460–0001;
telephone number: (703) 305–7695;
email address: pease.anita@epa.gov.
SUPPLEMENTARY INFORMATION:
You may be potentially affected by
this action if you develop, manufacture,
formulate, sell, and/or apply pesticide
products, and if you are interested in
the potential impacts of pesticide use on
listed species. The following list of
North American Industrial
Classification System (NAICS) codes is
not intended to be exhaustive, but rather
provides a guide to help readers
determine whether this document
applies to them. Potentially affected
entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code
112).
• Food manufacturing (NAICS code
311).
• Pesticide manufacturing (NAICS
code 32532).
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53707
• Other stakeholders who have an
interested in potential impacts of
pesticides on listed species.
However, this action is directed to the
public in general, and may be of
particular interest to the parties in the
NCAP v. EPA litigation, environmental
organizations, professional and
recreational fishing interests, other
public interest groups, state regulatory
partners, other interested federal
agencies, pesticide registrants and
pesticide users. Since other entities may
also be interested, the Agency has not
attempted to describe all the specific
entities that may be affected by this
action. If you have any questions
regarding the applicability of this action
to a particular entity, consult the person
listed under FOR FURTHER INFORMATION
CONTACT.
C. How can I get copies of this
document and other related
information?
A copy of the stipulated injunction is
available in the docket under docket
identification (ID) number EPA–HQ–
OPP–2014–0301.
II. Background
A. What action is the Agency taking?
EPA is announcing the availability of
a stipulated injunction issued on August
15, 2014, by the U.S. District Court for
the Western District of Washington that,
among other things, reinstitutes
streamside no-spray buffer zones to
protect endangered and threatened
Pacific salmon and steelhead in
California, Oregon, and Washington.
The stipulated injunction settles
litigation brought against EPA by NCAP
and others. Like the original buffer
zones, the limitations in this injunction
are part of a court order but are not
enforceable as labeling requirements
under FIFRA. To view the interactive
map displaying the areas where the
buffer zones apply, go to www.epa.gov/
espp/litstatus/wtc/uselimitation.htm.
The interactive map is expected to be
updated no later than September 30,
2014 to include the current list of
chemicals subject to the restrictions,
enhanced spatial resolution, and the
most recent geospatial data depicting
stream reaches where the buffer zones
apply. The no-spray buffer zones apply
to the pesticides carbaryl, chlorpyrifos,
diazinon, malathion, and methomyl.
These buffer zones will remain in place
until EPA implements any necessary
protections for Pacific salmon and
steelhead based on reinitiated
consultations with NMFS. EPA is
reevaluating these pesticides in
connection with its current FIFRA
E:\FR\FM\10SEN1.SGM
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Agencies
[Federal Register Volume 79, Number 175 (Wednesday, September 10, 2014)]
[Notices]
[Pages 53702-53707]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-21408]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OW-2011-0150; FRL-9916-36-OW]
Final National Pollutant Discharge Elimination System (NPDES)
Small Vessel General Permit for Discharges Incidental to the Normal
Operation of Vessels Less Than 79 Feet
AGENCY: Environmental Protection Agency.
ACTION: Notice of final permit issuance.
-----------------------------------------------------------------------
SUMMARY: Environmental Protection Agency (EPA) Regions 1, 2, 3, 4, 5,
6, 7, 8, 9, and 10 are finalizing the NPDES Small Vessel General Permit
(sVGP) to authorize discharges incidental to the normal operation of
non-military and non-recreational vessels less than 79 feet in length.
EPA is finalizing the sVGP, which has an effective date of
[[Page 53703]]
December 19, 2014, to authorize discharges from vessels less than 79
feet in length, because the law imposing a moratorium against NPDES
permitting of these discharges expires on December 18, 2014. That law
generally provides that no NPDES permits shall be required for
discharges (except discharges of ballast water) incidental to the
normal operation of vessels less than 79 feet and all commercial
fishing vessels.
EPA provided notice of the availability of the draft permit and
accompanying fact sheet for public comment in the Federal Register on
December 8, 2011.
DATES: This permit is effective on December 19, 2014.
In accordance with 40 CFR part 23, this permit shall be considered
issued for the purpose of judicial review on the day 2 weeks after
Federal Register publication. Under section 509(b) of the Clean Water
Act, judicial review of this general permit can be had by filing a
petition for review in the United States Court of Appeals within 120
days after the permit is considered issued for purposes of judicial
review. Under section 509(b)(2) of the Clean Water Act, the
requirements in this permit may not be challenged later in civil or
criminal proceedings to enforce these requirements. In addition, this
permit may not be challenged in other agency proceedings. This permit
also provides additional dates for compliance with the terms of the
permit.
FOR FURTHER INFORMATION CONTACT: For further information on the sVGP,
contact Jack Faulk at (202) 564-0768 or Ryan Albert at (202) 564-0763,
or at EPA Headquarters, Office of Water, Office of Wastewater
Management, Mail Code 4203M, 1200 Pennsylvania Ave, NW., Washington DC
20460; or email at vgp@epa.gov.
SUPPLEMENTARY INFORMATION: This supplementary information is organized
as follows:
Table of Contents
I. General Information
A. Does this action apply to me?
B. How can I get copies of these documents and other related
information?
C. Public Outreach: Public Hearings and Public Meetings, Web
Casts
D. Who are the EPA regional contacts for this permit?
II. Statutory and Regulatory History
III. Scope and Applicability of the 2014 sVGP
A. CWA Section 401 Certification and Coastal Zone Management Act
B. Geographic Coverage of sVGP
C. Categories of Vessels Covered Under the sVGP
D. Summary of the sVGP
E. Summary of Significant Changes from the Proposed sVGP
IV. Analysis of Economic Impacts of sVGP
A. Costs of the sVGP
B. Benefits of the sVGP
V. Executive Orders 12866 and 13563
I. General Information
A. Does this action apply to me?
This action applies to vessels less than 79 feet in length
operating in a capacity as a means of transportation that have
discharges incidental to their normal operation into waters subject to
this permit, except recreational vessels as defined in Clean Water Act
(CWA) section 502(25) and vessels of the Armed Forces as defined in CWA
section 312(a)(14). Affected vessels are henceforth referred to as non-
military, non-recreational vessels. Unless otherwise excluded from
coverage by Part 5 of the sVGP, the waters subject to this permit are
waters of the U.S. as defined in 40 CFR 122.2. That provision defines
``waters of the U.S.'' as certain inland waters and the territorial
sea, which extends three miles from the baseline. More specifically,
CWA section 502(8) defines ``territorial seas'' as ``the belt of the
seas measured from the line of the ordinary low water along that
portion of the coast which is in direct contact with the open sea and
the line marking the seaward limit of inland waters, and extending
seaward a distance of three miles.'' Note that the Clean Water Act does
not require NPDES permits for vessels or other floating craft operating
as a means of transportation beyond the territorial seas, i.e., in the
contiguous zone or ocean as defined by the CWA sections 502(9), (10).
See CWA section 502(12) and 40 CFR 122.2 (definition of ``discharge of
a pollutant''). This permit, therefore, does not apply in such waters.
Non-military, non-recreational vessels greater than 79 feet in
length operating in a capacity as a means of transportation that need
NPDES coverage for their incidental discharges will generally be
covered under the VGP (78 FR 21938, April 12, 2013). Similarly situated
vessels less than 79 feet in length may be covered under the VGP, or
may instead opt for coverage under the sVGP. Commercial fishing vessels
greater than 79 feet in length are not eligible for coverage under the
sVGP but can be covered under the VGP should they need to do so (e.g.,
after expiration of the moratorium from permit requirements for these
vessels).
B. How can I get copies of these documents and other related
information?
1. Docket. EPA has established an official public docket for this
action: Docket ID No. EPA-HQ-OW-2011-0150. The official public docket
is the collection of materials, including the administrative record
required by 40 CFR 124.18, for the final permit. It is available for
public viewing at the Water Docket in the EPA Docket Center, (EPA/DC)
EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC 20460.
Although all documents in the docket are listed in an index, some
information may not be publicly available, i.e., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Publicly available docket materials are available
electronically through https://www.regulations.gov and in hard copy at
the EPA Docket Center Public Reading Room, open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is (202) 566-1744 and the telephone
number for the Water Docket is (202) 566-2426.
2. Electronic Access. You may access this Federal Register document
electronically at https://www.federalregister.gov.
An electronic version of the public docket is available through the
Federal Docket Management System (FDMS) found at https://www.regulations.gov. You may use the FDMS to view public comments,
access the index listing of the contents of the official public docket,
and access those documents in the public docket that are available
electronically. Once at the Web site, enter the appropriate Docket ID
No. in the ``Search'' box to view the docket.
Certain types of information will not be placed in the EPA dockets.
Information claimed as CBI and other information whose disclosure is
restricted by statute, which is not included in the official public
docket, will not be available for public viewing in EPA's electronic
public docket. EPA policy is that copyrighted material will not be
placed in EPA's electronic public docket but will be available only in
printed, paper form in the official public docket. Although not all
docket materials may be available electronically, you may still access
any of the publicly available docket materials through the docket
facility identified in this section.
C. Public Outreach: Public Hearings and Public Meetings, Web Casts
Because EPA anticipated a significant degree of public interest in
the draft sVGP and the draft VGP, EPA held a public hearing on
Wednesday January 11, 2012, to receive public comment and answer
questions concerning the draft permits. The hearing was held at EPA
[[Page 53704]]
East Room 1153, 1201 Constitution Ave. NW., Washington DC 20460. In
addition, EPA held a public meeting on Monday January 23, 2012, at the
Ralph H. Metcalfe Federal Building, Room 331, 77 West Jackson Blvd.,
Chicago, IL 60604. The purpose of those meetings was to present the
proposed requirements of these two draft general permits and the basis
for those requirements, as well as to answer questions concerning the
draft permits. The public meetings and public hearing were attended by
a wide variety of stakeholders including representatives from industry,
government agencies, and environmental organizations. In addition, EPA
held a webcast on January 19, 2012, and two online Question and Answer
sessions on January 31 and February 7, 2012, to provide information on
the proposed permits and to answer questions from interested parties
that were unable to attend the public meetings or hearing.
D. Who are the EPA regional contacts for this permit?
For EPA Region 1, contact John Nagle at tel.: (617) 918-1054; or
email at nagle.john@epa.gov; or at US EPA, Region 1, New England/Office
of Ecosystem Protection, 5 Post Office Square, Suite 100, Mail Code:
OEP 06-1, Boston, MA 02109-3912.
For EPA Region 2 in New York and New Jersey, contact Patricia
Pechko at tel.: (212) 637-3796; or email at pechko.patricia@epa.gov; or
at US EPA, Region 2, 290 Broadway, 24th Floor, New York, NY 10007-1866
or for EPA Region 2 in Puerto Rico and the Virgin Islands, contact
Sergio Bosques at tel.: (787) 977-5838; or email at
bosques.sergio@epa.gov; or at US EPA Region 2, Caribbean Environmental
Protection Division, City View Plaza II--Suite 7000, 48 Rd. 165 Km 1.2,
Guaynabo, Puerto Rico 00968-8069.
For EPA Region 3, contact Mark Smith at tel.: (215) 814-3105; or
email at smith.mark@epa.gov; or at US EPA, Region 3, 1650 Arch St.,
Mail Code: 3WP41, Philadelphia, PA 19103-2029.
For EPA Region 4, contact Karrie-Jo Robinson at tel.: (404) 562-
9308; or email at robinson.karrie-jo@epa.gov; or Kip Tyler at 404-562-
9294 or email at tyler.kip@epa.gov; or at US EPA, Region 4/Water
Permits Division, Atlanta Federal Center, 61 Forsyth St. SW., Atlanta,
GA 30303-3104.
For EPA Region 5, contact Sean Ramach at tel.: (312) 886-5284; or
email at ramach.sean@epa.gov; or US EPA, Region 5, 77 W Jackson Blvd.,
Mail Code: WN16J, Chicago, IL 60604-3507.
For EPA Region 6, contact Jenelle Hill at tel.: (214) 665-9737; or
email at hill.jenelle@epa.gov; or at US EPA, Region 6, 1445 Ross Ave.,
Suite 1200, Dallas, TX 75202-2733.
For EPA Region 7, contact Alex Owutaka at tel.: (913) 551-7584; or
email at owutaka.alex@epa.gov; or at US EPA, Region 7, 11201 Renner
Boulevard, Lenexa, Kansas 66219.
For EPA Region 8, contact Lisa Luebke at tel.: (303) 312-6256; or
email at luebke.lisa@epa.gov; or at US EPA, Region 8, 1595 Wynkoop St.,
Mail Code: 8P-W-WW, Denver, CO 80202.
For EPA Region 9, contact Eugene Bromley at tel.: (415) 972-3510;
or email at bromley.eugene@epa.gov; or at US EPA, Region 9, 75
Hawthorne St., San Francisco, CA 94105-3901.
For EPA Region 10, contact Cindi Godsey at tel.: (206) 553-1676; or
email at godsey.cindi@epa.gov; or at US EPA, Region 10, 1200 6th
Avenue, Suite 900, Seattle, WA 98101.
II. Statutory and Regulatory History
The Clean Water Act (CWA) section 301(a) provides that ``the
discharge of any pollutant by any person shall be unlawful'' unless the
discharge is in compliance with certain other sections of the Act. 33
U.S.C. 1311(a). The CWA defines ``discharge of a pollutant'' as ``(A)
any addition of any pollutant to navigable waters from any point
source, (B) any addition of any pollutant to the waters of the
contiguous zone or the ocean from any point source other than a vessel
or other floating craft.'' 33 U.S.C. 1362(12). A ``point source'' is a
``discernible, confined and discrete conveyance'' and includes a
``vessel or other floating craft.'' 33 U.S.C. 1362(14).
The term ``pollutant'' includes, among other things, ``garbage . .
. chemical wastes . . . and industrial, municipal, and agricultural
waste discharged into water.'' The Act's definition of ``pollutant''
specifically excludes ``sewage from vessels or a discharge incidental
to the normal operation of a vessel of the Armed Forces'' within the
meaning of CWA section 312. 33 U.S.C. 1362(6).
One way a person may discharge a pollutant without violating the
CWA section 301 prohibition is by obtaining authorization to discharge
(referred to herein as ``coverage'') under a CWA section 402 National
Pollutant Discharge Elimination System (NPDES) permit (33 U.S.C.
section 1342). Under CWA section 402(a), EPA may ``issue a permit for
the discharge of any pollutant, or combination of pollutants,
notwithstanding section 1311(a)'' upon certain conditions required by
the Act.
Historically, EPA had not required NPDES permits for discharges
incidental to the normal operation of a vessel; however, on July 23,
2008, the United States Ninth Circuit Court of Appeals upheld a lower
court decision that the Agency's approach to exclude these discharges
from permitting exceeded the Agency's authority to do so under the
Clean Water Act. Northwest Envtl. Advocates et al. v. United States
EPA, 2006 U.S. Dist. LEXIS 69476 (N.D. Cal. 2006). This decision
prompted EPA and Congress to take several actions. For larger vessels
(i.e., greater than 79 feet in length), EPA issued the Vessel General
Permit (VGP) in late 2008 to provide a mechanism for these vessels to
comply with CWA permitting obligations. For smaller vessels and
commercial fishing vessels, Congress enacted Public Law (Pub. L.) 110-
299 to provide a two-year permitting moratorium to allow time for EPA
to study discharges from these vessels and provide a Report to Congress
(``Study of Discharges Incidental to Normal Operation of Commercial
Fishing Vessels and Other Non-Recreational Vessels Less Than 79 Feet,''
August 2010). Congress has subsequently extended the permitting
moratorium for smaller vessels and commercial fishing vessels through
December 18, 2014. (Pub. L. 111-215 and Pub. L. 112-213).
The Small Vessel General Permit (sVGP), as finalized, is a
mechanism for EPA to provide coverage for discharges incidental to the
normal operation of non-military and non-recreational vessels less than
79 feet in length once the discharge moratorium ends on December 18,
2014. All discharges incidental to the normal operation of a vessel
less than 79 feet, when that vessel is operating in capacity as a means
of transportation, are eligible for coverage under this permit.
EPA is issuing this permit in advance of the date permit coverage
is required to give small vessel owners and operators time to read and
prepare for these new permit requirements.
III. Scope and Applicability of the 2014 sVGP
A. CWA Section 401 Certification and Coastal Zone Management Act
EPA may not issue a permit authorizing discharges into the waters
of a state until that state has granted certification under CWA section
401 or has waived its right to certify (or been deemed to have waived).
33 U.S.C. 1341(a)(1); 40 CFR 124.53(a). EPA gave each state, tribe, and
territory as applicable over nine months to certify, well over the 60
day regulatory norm for NPDES permits. EPA found that this 401
certification had unusual circumstances
[[Page 53705]]
which warranted additional time (e.g., the permits regulate discharges
of mobile point sources; they have broad applicability to the waters of
every state and tribe in the country). If a state believed that any
permit condition(s) more stringent than those contained in the draft
permit were necessary to meet the applicable requirements of either the
CWA or state law, the state had an opportunity to include those
condition(s) in its certification. 40 CFR 124.53(e)(1). Twenty-three
states and one Indian tribe provided such conditions in their
certifications, and EPA has added them to the sVGP pursuant to CWA
section 401(d). 33 U.S.C. 1341(d).
Similarly, EPA may not authorize discharges under a general permit
into waters of a State if the State objects with EPA's National
Consistency Determination, pursuant to the regulations implementing of
the Coastal Zone Management Act (``CZMA''), specifically the
regulations at 15 CFR 930.31(d) and 930.36(e). If the State coastal
zone management agency objects to the general permit, then the general
permit is not available for use by potential general permit users in
that State unless the applicant who wants to use the general permit
provides the State agency with the applicant's consistency
determination and the State agency concurs. 15 CFR 930.31(d). The
National Oceanic and Atmospheric Administration (NOAA) has explained
that ``a State objection to a consistency determination for the
issuance of a general permit would alter the form of CZMA compliance
required, transforming the general permit into a series of case by case
CZMA decisions and requiring an individual who wants to use the general
permit to submit an individual consistency certification to the State
agency in compliance with 15 CFR part 930.'' 71 FR 788, 793. No state
objected to EPA's national consistency determination.
B. Geographic Coverage of sVGP
The sVGP is applicable to discharges incidental to the normal
operation of a vessel (identified in Part 1.4 of the sVGP and section
3.6 of the sVGP fact sheet) into waters subject to these permits, which
means ``waters of the U.S.'' as defined in 40 CFR 122.2, except as
otherwise excluded by Part 5 of the permit. This includes the
territorial seas, defined in section 502(8) of the CWA, extending to
three miles from the baseline. Pacific Legal Foundation v. Costle, 586
F.2d 650, 655-656 (9th Cir. 1978); Natural Resources Defense Council,
Inc. v. U.S. EPA, 863 F.2d 1420, 1435 (9th Cir. 1988).
The general permit will cover vessel discharges into the waters of
the U.S. in all states and territories, regardless of whether a state
is authorized to implement other aspects of the NPDES permit program
within its jurisdiction, except as otherwise excluded by Part 5 of the
sVGP. While, pursuant to CWA section 402(c), EPA typically is required
to suspend permit issuance in authorized states, EPA may issue NPDES
permits in authorized states for discharges incidental to the normal
operation of a vessel because 402(c)(1) of the Clean Water Act
prohibits EPA from issuing permits in authorized states only for
``those discharges subject to [the state's authorized] program.''
Discharges formerly excluded under 40 CFR 122.3 are not ``subject to''
authorized state programs. The vessel discharges that will be covered
by the permit are discharges formerly excluded from NPDES permitting
programs under 40 CFR 122.3. (See discussion of the vacatur of this
exclusion above.) Therefore the discharges at issue are not considered
a part of any currently authorized state NPDES program. See 40 CFR
123.1(i)(2) (where state programs have a greater scope of coverage than
``required'' under the federal program, that additional coverage is not
part of the authorized program) and 40 CFR 123.1(g)(1) (authorized
state programs are not required to prohibit point source discharges
exempted under 40 CFR122.3).
C. Categories of Vessels Covered Under the sVGP
The sVGP applies to discharges incidental to the normal operation
of non-military, non-recreational vessels less than 79 feet (unless a
vessel elects for coverage under the VGP instead). The discharges
eligible for coverage under this permit are those covered by the former
exclusion in 40 CFR 122.3(a) prior to its vacatur.
D. Summary of the sVGP
EPA is today finalizing the sVGP for vessels less than 79 feet. EPA
is finalizing the sVGP to provide coverage for vessels less than 79
feet in length because the Public Law (Pub. L.) 110-299 NPDES
permitting moratorium (subsequently extended by Pub. L. 111- 215 and
Pub. L. 112-213) expires on December 18, 2014. EPA recognizes that
small commercial vessels are different in operation than larger
commercial vessels, generally have fewer discharge types, and that
owner/operators of smaller vessels have particularized expertise and
different resources available to manage their vessels than owner/
operators of larger vessels. Hence, the sVGP is structured differently
for this class of permittees. The sVGP will not require the vessel
owner or operator to submit a Notice of Intent (NOI) to receive permit
coverage. However, as with vessels not required to submit an NOI under
the 2013 VGP, sVGP permittees are required to complete and keep a
Permit Authorization and Record of Inspection (PARI) form onboard their
vessel at all times (either in paper form or electronically). EPA also
notes that vessel owner/operators of vessels less than 79 feet may
choose whether they wish to seek coverage under the sVGP or the VGP.
The PARI form, different forms for the sVGP and VGP, will document
under which permit the owner/operator has sought coverage. The
discharges covered in the sVGP are categorized into several broad
categories listed in the permit and include: common-sense requirements
for general discharges, fuel management, engine and oil control, solid
and liquid waste management, deck washdown and runoff and above water
line hull cleaning, vessel hull maintenance, graywater, fish hold
effluent, ballast water, and overboard cooling water discharges. The
sVGP includes non-numeric effluent limits in the form of Best
Management Practices (BMPs), which were developed for these discharges
because EPA has determined that it is infeasible to calculate numeric
effluent limits at this time. The BMPs are designed to minimize the
amount of any discharge produced as well as reduce the likelihood the
discharge would enter a waterbody. EPA determined that for most small
vessel discharges, minimization of pollutants in discharges can be
achieved without using highly engineered, complex treatment systems.
The sVGP also requires the owner/operator to inspect the vessel
quarterly and take any corrective action, as necessary, and certify to
such on the PARI form each year.
E. Summary of Significant Changes From the Proposed sVGP
EPA received comments from more than 70 commenters and based on
those comments, the Agency made a number of revisions to the proposed
permit as reflected in today's action. Significant changes from the
proposed permit are summarized below and discussed in more detail in
the permit fact sheet and in the response to comments document
available in the docket (Docket ID No. EPA-HQ-OW-2011-0150 accessible
at https://www.regulations.gov):
1. Removed the requirement that only vessels with less than 8 cubic
meters of
[[Page 53706]]
ballast water are eligible for sVGP coverage.
2. Added a provision that, when feasible and safe, operators must
use ballast water pumps instead of gravity draining to empty these
tanks.
3. Defined what it means for an environmentally acceptable
lubricant (EAL) to be ``technically infeasible'' for a vessel to use as
the term is used in the permit describing when EALs may not be required
and added the Swedish Standard SS 155434, Convention for the Protection
of the Marine Environment of the North-East Atlantic (OSPAR)
requirements, and EPA's Design for the Environment (DfE) to the list of
acceptable labeling programs for EALs.
4. Clarified the prohibition against discharging unused bait
overboard is specific to unused ``live'' bait from a different water
body.
5. Added a condition that accumulated bilgewater must be removed,
to the extent practicable, prior to transporting a vessel from one
waterbody to another over land.
6. Added a prohibition against using any other organotin compound
(beyond an absolute prohibition of tributyl tin) as a hull coating
except in certain instances.
7. Clarified vessel hull cleaning should not be done within 90 days
of painting, unless the vessel's hull is ``substantially fouled'' and
that cleaning of hulls does not necessarily have to done using ``only
soft sponges.''
8. Clarified that discharges from continuous ``once-through''
ambient water used for keeping the catch alive during transit is not
subject to the permit requirements for discharging to shore-based
facilities.
9. Clarified that ``periodic'' inspections of the engine and of the
hull are to be done at least quarterly.
10. Clarified that any problems identified during the quarterly
visual inspection or when inspecting fuel and hydraulic systems for
damage or leaks must be corrected as soon as possible.
11. Added a condition that a quarterly inspection is not required
on vessels that are not in the water for that quarter but this must be
documented on the PARI form for that quarter.
12. Added definitions for several terms used in the permit,
including ``ballast tank,'' ``ballast water,'' ``ballast water
capacity,'' ``fish hold,'' ``minimally-toxic,'' ``minimally-toxic
soaps, cleaners, and detergents,'' ``minimize,'' ``not
bioaccumulative,'' ``seafood processing,'' and ``sewage from vessels.''
13. Added State and Tribal-specific requirements for 21 states and
one tribe, pursuant to CWA Sec. 401, to the permit.
IV. Analysis of Economic Impacts of sVGP
A. Costs of the sVGP
EPA estimates that between 115,000 and 138,000 vessels are
potentially affected by the sVGP requirements. The establishments that
own and operate vessels that will be subject to the sVGP are primarily
associated with the fishing and water transportation industries, and
with the oil and gas sector within the mining industry. To estimate the
effect of sVGP requirements on an industry as a whole, EPA's analysis
takes into account previous conditions and determines how the industry
would act in the future in the absence of permit requirements. The
baseline for this analysis is full industry compliance with existing
federal and state regulations and with current industry practices or
standards that exceed current regulations to the extent that they can
be empirically observed. EPA estimated potential compliance costs to
vessels associated with each of the practices and discharge categories
identified in the sVGP, and with the inspection and recordkeeping
requirements. Overall, EPA finds that sVGP requirements could result in
total annual incremental costs for domestic vessels ranging between
$7.1 million and $16.9 million (2010$) in the aggregate. This includes
the paperwork burden costs and the incremental costs of all practices
for applicable discharge categories. Per vessel incremental compliance
costs average between $17 and $133 per year, depending on the number of
applicable discharge categories and baseline practices.
To evaluate economic impacts of sVGP requirements on the affected
industries, EPA performed a firm-level analysis. The firm-level
analysis examines the impact of incremental costs per vessel to comply
with the sVGP requirements on model firms that represent the financial
conditions of ``typical'' businesses in each of the examined industry
sectors. Since nearly all firms in the affected industries are small,
the firm-level analysis focuses on assessment of impacts on small
businesses. Further, given the distribution of revenue among firms in
the affected industry sectors, which suggests a relatively greater
potential for impacts to small firms in the commercial fishing
industry, EPA looked more specifically at this industry when assessing
the significance of impacts. To evaluate the potential impact of the
sVGP on small entities, EPA used a cost-to-revenue test to evaluate the
potential severity of economic impact on vessels and facilities owned
by small entities. The test calculates annualized pre-tax compliance
cost as a percentage of total revenues and uses a threshold of 1 and 3
percent to identify facilities that would be significantly impacted as
a result of this permit. Because the impact of sVGP compliance is
likely to be most significant for firms at the lower end of the firm
size spectrum, the analysis focused on firms in the smallest revenue
category in each industry. The results of this test provide estimated
compliance cost thresholds that range between $331 and $680 per year
(1%) and between $994 and $2,040 per year (3%), depending on the
industry. The estimated sVGP compliance costs ($17 to $133 per year)
are well below these thresholds. Based on this firm-level analysis
using the average characteristics of firms in the lowest revenue
category, EPA concludes that the sVGP will not have a significant
economic impact on a substantial number of small entities based on
information showing that firms would have lower compliance costs than
would exceed the 1 percent cost-to-revenue threshold under high-end
cost assumptions.
B. Benefits of the sVGP
Although EPA was unable to evaluate the expected benefits of the
permit in dollar terms due to data limitations, the Agency collected
and considered relevant information to enable qualitative consideration
of ecological benefits and to assess the importance of the ecological
gains from the revisions. EPA expects that reductions in vessel
discharges will benefit society in two broad categories: (1) Enhanced
water quality from reduced pollutant discharges and (2) reduced risk of
invasive species introduction.
Because many of the nation's busiest ports are considered to be
impaired by a variety of pollutants found in vessel discharges,
reducing pollutant loadings from these discharges is expected to have
benefits associated with the reduction of concentrations of nutrients,
metals, oil, grease, and toxics in waters with high levels of vessel
traffic.
V. Executive Orders 12866 and 13563
Under Executive Order 12866 (58 FR 51735 (October 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 Executive Orders 12866 and 13563 (76 FR 3821) and any
changes made in response to OMB recommendations have been documented in
the docket for this action.
[[Page 53707]]
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: August 21, 2014.
Deborah A. Szaro,
Deputy Regional Administrator, EPA Region 1.
Dated: August 21, 2014.
Joan Leary Matthews,
Director, Clean Water Division, EPA Region 2.
Dated: August 21, 2014.
Jose C. Font,
Director, Caribbean Environmental Protection Division, EPA Region 2.
Dated: August 21, 2014.
Jon M. Capacasa,
Director, Water Protection Division, EPA Region 3.
Dated: August 21, 2014.
Gail D. Mitchell,
Deputy Director, Water Protection Division, EPA Region 4.
Dated: August 21, 2014.
Timothy C. Henry,
Deputy Director, Water Division, EPA Region 5.
Dated: August 21, 2014.
James R. Brown,
Acting Deputy Director, Water Quality Protection Division, EPA Region
6.
Dated: August 21, 2014.
Karen Flournoy,
Director, Water, Wetlands, and Pesticides Division, EPA Region 7.
Dated: August 21, 2014.
Darcy O'Connor,
Acting Assistant Regional Administrator, Office of Partnerships and
Regulatory Assistance, EPA Region 8.
Dated: August 21, 2014.
Nancy Woo,
Associate Director, Water Division, EPA Region 9.
Dated: August 21, 2014.
Daniel Opalski,
Director, Office of Water and Watersheds, EPA Region 10.
[FR Doc. 2014-21408 Filed 9-9-14; 8:45 am]
BILLING CODE 6560-50-P