[Federal Register Volume 72, Number 119 (Thursday, June 21, 2007)]
[Notices]
[Pages 34241-34249]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-12022]


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ENVIRONMENTAL PROTECTION AGENCY

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


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

AGENCY: Environmental Protection Agency (EPA).

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

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

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

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2007-0483, by one of the following methods:
     www.regulations.gov. Follow the on-line instructions for 
submitting comments.
     E-mail: ow-docket@epa.gov. Attention Docket ID No. OW-
2007-0483.
     Mail: Water Docket Environmental Protection Agency, 
Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, 
Attention Docket ID No. OW-2007-0483. Please include a total of two 
copies in addition to the original.
     Hand Delivery: EPA Docket Center, EPA West, Room 3334, 
1301 Constitution Avenue, NW., Washington, DC, Attention Docket ID No. 
OW-2007-0483. Such deliveries are only accepted during the Docket's 
normal hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2007-
0483. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through www.regulations.gov 
or e-mail. The www.regulations.gov Web site is an ``anonymous access'' 
system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through 
www.regulations.gov your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses. For additional information about EPA's public docket visit the 
EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. 
For additional instructions on submitting comments, go to Unit I.B of 
the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Water Docket, EPA/DC, EPA 
West,

[[Page 34242]]

Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Water 
Docket is (202) 566-2426.

FOR FURTHER INFORMATION CONTACT: John Lishman, Water Permits Division, 
Office of Wastewater Management (4203M), Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone 
number: (202) 566-1364; fax number: (202) 564-6431; e-mail address: 
lishman.john@epa.gov; or Ruby Cooper, Water Permits Division, Office of 
Wastewater Management (4203M), Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 
564-0757; fax number: (202) 564-6431; e-mail address: 
cooper.ruby@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

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

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

    1. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or e-mail. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information on a disk 
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM 
as CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the notice by docket number and other identifying 
information (subject heading, Federal Register date, and page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives; 
and provide reasons for your suggested alternatives.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns and 
suggest alternatives.
     Explain your views as clearly as possible.
     Make sure to submit your comments by the comment period 
deadline identified.

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

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

    Section 301(a) of the CWA provides that ``the discharge of any 
pollutant by any person shall be unlawful'' unless the discharge is in 
compliance with certain other sections of the Act. 33 U.S.C. 1311(a). 
The CWA defines ``discharge of a pollutant'' as ``(A) any addition of 
any pollutant to navigable waters from any point source, (B) any 
addition of any pollutant to the waters of the contiguous zone or the 
ocean from any point source other than a vessel or other floating 
craft.'' 33 U.S.C. 1362(12). A ``point source'' is a ``discernible, 
confined and discrete conveyance'' and includes a ``vessel or other 
floating craft.'' 33 U.S.C. 1362(14).
    The term ``pollutant'' includes, among other things, ``sewage, 
garbage * * * biological materials * * * and industrial, municipal, and 
agricultural waste discharged into water.'' \1\ One way a person may 
discharge a pollutant without violating the section 301 prohibition is 
to obtain a section 402 NPDES permit. 33 U.S.C. 1342. Under section 
402(a), EPA may ``issue a permit for the discharge of any pollutant, or 
combination of pollutants, notwithstanding section 1311(a)'' upon 
certain conditions required by the Act.
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    \1\ As will be further discussed in Unit II C of the 
SUPPLEMENTARY INFORMATION section of this document, the Act's 
definition of ``pollutant'' specifically excludes ``sewage from 
vessels or a discharge incidental to the normal operation of a 
vessel of the Armed Forces.'' 33 U.S.C. 1362(6).
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    Less than one year after the CWA was enacted, EPA promulgated a 
regulation that excluded discharges incidental to the normal operation 
of vessels from

[[Page 34243]]

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

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

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

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

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


[[Page 34244]]


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

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

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

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

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

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

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

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

[[Page 34245]]

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

III. Request for Public Input and Comment

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

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

[[Page 34246]]

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

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

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

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

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

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

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

[[Page 34247]]

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

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

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

V. Appendix: Background on NPDES Permitting Program

A. What are the basic kinds of NPDES permits?

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

B. Who is responsible for issuing NPDES permits?

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

[[Page 34248]]

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

C. How are NPDES permit limits established?

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

[[Page 34249]]

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

    Dated: June 14, 2007.
Benjamin H. Grumbles,
Assistant Administrator for Water.
[FR Doc. E7-12022 Filed 6-20-07; 8:45 am]
BILLING CODE 6560-50-P