[Federal Register Volume 73, Number 117 (Tuesday, June 17, 2008)]
[Notices]
[Pages 34296-34304]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-13615]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8580-9; EPA-HQ-OW-2008-0055 and EPA-HQ-OW-2008-0056]


Draft National Pollutant Discharge Elimination System (NPDES) 
General Permits for Discharges Incidental to the Normal Operation of a 
Vessel

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed permit issuance and Notice of Public 
Hearing.

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SUMMARY: EPA Regions 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 are proposing an 
NPDES Vessel General Permit (VGP) to cover discharges incidental to the 
normal operation of commercial vessels and recreational vessels greater 
than or equal to 79 feet in length and an NPDES Recreational General 
Permit (RGP) to cover discharges incidental to the normal operation of 
recreational vessels less than 79 feet in length. This action is in 
response to a District Court ruling that vacates, as of September 30, 
2008, a long-standing EPA regulation that excludes discharges 
incidental to the normal operation of a vessel from the need to obtain 
an NPDES permit. Nw. Envt'l Advocates et al. v. EPA, 2005 WL 756614 
(N.D. Cal.). Although EPA has filed an appeal with the 9th Circuit 
Court of Appeals, as a practical matter, the Agency cannot simply await 
the outcome of that appeal. This is because if the District Court's 
order remains unchanged, as of September 30, 2008, discharges of 
pollutants incidental to the normal operation of a vessel that had 
formerly been exempted from NPDES permitting by the regulation will be 
subject to the prohibition in CWA section 301(a) against the discharge 
of pollutants without a permit.
    EPA solicited information and data on discharges incidental to 
normal vessel operations to assist in developing these proposed NPDES 
permits in a Federal Register Notice published June 21, 2007 (72 FR 
32421). The majority of information and data in response to that notice 
came from seven different groups: Individual citizens, commercial 
fishing representatives, commercial shipping groups, environmental or 
outdoor recreation groups, the oil and gas industry, recreational 
boating-related businesses, and state governments. EPA considered all 
such resulting information and data along with other available 
information in developing the two proposed vessel permits.

DATES: Comments must be submitted on or before August 1, 2008.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2008-0055 for the VGP or Docket ID No. EPA-HQ-OW-2008-0056 for the RGP, 
by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: ow-docket@epa.gov.
     Mail: Original and three copies to: Water Docket, 
Environmental Protection Agency, Mail Code: 2822T, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460.
     Hand Delivery: EPA Docket Center, Public Reading Room, EPA 
Headquarters West Building, Room 3334, 1301 Constitution Ave., NW., 
Washington, DC 20460. 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: A copy of the draft RGP and VGP and their respective 
accompanying fact sheets are available at http://www.epa.gov/npdes/
vessels. Direct your comments to Docket ID No. EPA-HQ-OW-2008-0055 for 
the VGP and Docket ID No. EPA-HQ-OW-2008-0056 for the RGP. EPA's policy 
is that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket. Do not 
submit information that you consider to be CBI or otherwise protected 
through http://

[[Page 34297]]

www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.

FOR FURTHER INFORMATION CONTACT: For further information on the 
proposed commercial vessel NPDES general permit, including on how to 
obtain copies of the draft general permit and fact sheet, contact Ryan 
Albert at EPA Headquarters, Office of Water, Office of Wastewater 
Management, Mail Code 4203M, 1200 Pennsylvania Ave., NW., Washington, 
DC 20460; or at tel. 202-564-0763; or e-mail: 
CommercialVesselPermit@epa.gov. For further information on the proposed 
recreational vessel NPDES general permit, including on how to obtain 
copies of the draft general permit and fact sheet, contact Juhi Saxena 
at EPA Headquarters, Office of Water, Office of Wastewater Management, 
Mail Code 4203M, 1200 Pennsylvania Ave., NW., Washington, DC 20460; or 
at tel. 202-564-0719; or e-mail: RecreationalVesselPermit@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. How Can I Get Copies of These Documents and Other Related 
Information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. EPA-HQ-OW-2008-0055 for the VGP and Docket 
ID No. EPA-HQ-OW-2008-0056 for the RGP. The official public docket is 
the collection of materials, including the administrative record for 
the draft permit required by 40 CFR 124.9, that 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 is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Publicly available docket 
materials are available electronically through http://
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. In addition, the comments and information that EPA 
received in response to its June 21, 2007, Federal Register notice can 
be found in the public docket at http://www.regulations.gov by 
searching Docket ID No. EPA-HQ-OW-2007-0483.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through the 
Federal Docket Management System (FDMS) found at http://
www.regulations.gov. You may use the FDMS to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. 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 section I.A.1.

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

    1. Submitting CBI. Do not submit this information to EPA through 
regulations.gov or e-mail. Clearly mark all of the information that you 
claim to be CBI. For CBI information on computer disks mailed to EPA, 
mark the surface of the disk as CBI. Also identify electronically the 
specific information contained in the disk or that you claim is CBI. In 
addition to one complete version of the specific information claimed as 
CBI, you must submit a copy that does not contain the information 
claimed as CBI for inclusion in the public document. 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 permit 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 section or 
part of the permit
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
     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.

C. How and To Whom Do I Submit Comments?

    The opportunity to raise issues and provide information on these 
general permits is during the public comment period (see 40 CFR 124.13 
for more information). You may submit comments electronically, by mail, 
or through hand delivery/courier. To ensure proper receipt by EPA, 
identify the appropriate docket identification number in the subject 
line on the first page of your comment. To ensure that EPA can read, 
understand, and therefore properly respond to comments, the Agency 
would prefer that commenters cite, where possible, the paragraph(s) or 
section in the fact sheet or permit to which each comment refers. 
Please ensure that your comments are submitted within the specified 
comment period. Comments received after the close of the comment period 
will be marked ``late.'' EPA is not required to consider these late 
comments.
    EPA seeks comment on all aspects of the two proposed general 
permits and the accompanying fact sheets. In

[[Page 34298]]

particular, EPA is soliciting comments on the following specific 
aspects of the VGP (for more detail on each element see the Permit Fact 
Sheet):
     Whether uses of Tetrachloroethylene (TCE) other than dry 
cleaning should be explicitly included or excluded from permit 
coverage. EPA is also interested in comments on the frequency and 
nature of the use of TCE-containing products on vessels. (TCE 
discharges associated with dry-cleaning activities on vessels are not 
proposed to be eligible for coverage because they are not considered to 
be incidental to the normal operation of a vessel.)
     The approach for requiring NOIs for commercial vessels.
     Whether the permit should establish numeric discharge 
limits for discharges incidental to the normal operation of a vessel 
for which the proposed permit would solely impose Best Management 
Practices (BMPs). (The proposed permit establishes numeric discharge 
limits for graywater from Cruise Ships, oily discharges, including oily 
mixtures, and residual biocide limits from vessels utilizing 
experimental ballast water treatment standards; for the remainder of 
the discharges incidental to the normal operation of vessels, the 
proposed permit imposes BMPs, based on EPA's conclusion that numeric 
effluent limitations are not feasible for vessel discharges in this 
permit iteration.) EPA requests that if commenters provide suggested 
numeric limits, that they should also provide any supporting data that 
identifies technologies or BMPs are available to meet these limits, and 
if these limits are more stringent than requirements of this permit, 
provide the costs and non-water quality impacts of setting those 
limits, and any other relevant information that would be helpful in 
setting these limits.
     Whether EPA should limit discharges of bilgewater in 
embayments such as the Chesapeake Bay for large vessels that regularly 
leave waters subject to this permit.
     Whether the requirement of mandatory saltwater flushing 
for all vessels with unpumpable ballast water and residual sediment 
which sail more than 200 nm (nautical mile) from any shore is 
appropriate.
     Whether Ballast Water Exchange requirements similar to 
those proposed for Pacific near shore voyages should be applicable for 
vessels engaged in coastwise trade on the Atlantic or Gulf Coasts that 
will discharge to waters subject to this permit. There are several 
fundamental differences between the Pacific Coasts and the Atlantic and 
Gulf Coasts. EPA does not have credible data or analyses as to whether 
the practice for vessels engaged in Pacific coastwise trade would 
mitigate or increase the risk for the spread of aquatic nuisance 
species (ANS) on the Atlantic or Gulf Coasts. Note that the proposed 
permit would require that all vessels that leave the U.S. Exclusive 
Economic Zone (EEZ), travel more than 200 nm from any shore, and will 
discharge to waters subject to this permit must complete a Ballast 
Water Exchange and all such vessels with unpumpable ballast water and 
residual sediment must conduct Mandatory Saltwater Flushing.
     Whether the questions developed for a one-time report are 
appropriate and whether alternative or supplemental questions should be 
considered. (The proposed permit requires owner/operators to submit a 
one-time report that contains basic information about the vessel after 
the 30th month of permit coverage).
     Whether the proposed operational limits for large cruise 
ships are appropriate and whether the discharge standards proposed for 
within 1 nm of any shore should be extended to 3 nm from any shore, 
regardless of the speed of the vessel. (For large cruise ships, the 
proposed permit would prohibit the discharge of graywater within 1 
nautical mile of shore unless the graywater has been treated to 
treatment standards in part 5.2.1.1.2 of the proposed permit. The 
proposed permit would also require the discharge to either meet the 
effluent limits outlined in this proposed permit under Part 5.2.1.1.2 
or be discharged while the vessel is moving at least 6 knots for 
discharges between 1 nm and 3 nm of shore).
     Whether the proposed prohibition on discharges of 
untreated graywater within 1 nm of shore for large and medium cruise 
ships, and into nutrient-impaired waters such as the Chesapeake Bay and 
Puget Sound for large cruise ships, is appropriate and whether EPA's 
economic analyses are accurate. EPA estimates that most to all large 
and medium cruise ships have sufficient graywater holding capacity to 
avoid discharging graywater within 1 nm of shore and so estimates no 
incremental costs for complying with this requirement. EPA further 
estimates that some vessels will be able to hold graywater so that they 
do not have to discharge that graywater into nutrient impaired waters. 
Those large cruise ships that do not have sufficient holding capacity 
and do not have the ability to treat graywater to secondary standards 
may have to install advanced wastewater treatment systems. EPA further 
estimates that of the total large cruise ship population of 143 
vessels, 30 vessels are certified to operate in Alaskan waters and thus 
are already equipped to treat graywater or hold sufficient quantities 
that they would be able to avoid discharging in nutrient impaired 
waters. EPA separately estimates that approximately 57 vessels have 
advanced wastewater treatment systems (which likely includes most or 
all of the vessels certified to operate in Alaskan waters), some to 
many of which are already equipped to treat graywater (or hold 
sufficient quantities that they would be able to avoid discharging in 
nutrient impaired waters or within 1 nm of shore). This leaves a range 
of 86 to 113 large cruise ships that do not currently treat graywater 
and might have to install treatment to avoid discharging untreated 
greywater in nutrient impaired waters, EPA estimates that 30 of these 
vessels would actually need to install graywater treatment systems to 
allow discharge of graywater in nutrient-impaired waters. EPA believes 
that cruise ship operators could arrange their schedules and 
itineraries such that the remaining 56 to 83 vessels could avoid 
operating in nutrient impaired waters for prolonged periods or avoid 
itineraries that would require them to stay within 1 nm of shore for 
prolonged periods. Based on information previously gathered for Alaskan 
cruise ships, EPA estimates that the annualized cost for installing and 
operating such treatment is $7.09 per passenger/crew berth per season. 
EPA further estimates that the average capacity of large cruise ships 
is 3,211 passengers and crew members. EPA thus estimates an average 
annualized cost of installing graywater treatment of $22,766 per 
vessel, or about $683,000 per year for 30 vessels. (See Section 3.6.1 
on p 70 of the Economic and Benefits Analysis for further details.) EPA 
requests comment on all of these estimates. If commenters disagree with 
any of these estimates, EPA requests any available data that could form 
the basis of revised estimates.
     Whether large ferries should be subject to additional 
graywater treatment standards similar to those proposed for medium and 
large cruise ships.
    EPA is also particularly interested in comments on the following 
aspects of the RGP (for more detail on each element see the Permit Fact 
Sheet):
     The approach to not require NOIs for recreational boats 
and recommendations (and rationale supporting them) where commenters 
favor NOI submittal for recreational boaters.

[[Page 34299]]

     Whether the permit should establish numeric discharge 
limits for discharges incidental to the normal operation of a vessel 
for which the proposed permit would solely require BMPs. (The proposed 
permit establishes one numeric effluent limit in the form of a zero 
discharge standard for leaching of tribulyl tin from vessel hulls, a 
second numeric effluent limit for graywater discharges from Cruise 
ships when they discharge in certain waters, and a third for residual 
biocides from experimental ballast water treatment systems. EPA 
requests that if commenters provide suggested numeric limits, that they 
should also provide any supporting data that identifies technologies or 
BMPs available to meet these limits, and if these limits are more 
stringent than requirements of this permit, provide the costs and non-
water quality impacts of setting those limits, and any other relevant 
information that would be helpful in setting these limits.
     Whether any of the BMPs listed under the `Encouraged Best 
Management Practices' Section should be made mandatory under this 
permit or completely removed as an encouraged practice.

D. Public Hearing

    Because EPA anticipates a significant degree of public interest in 
these draft permits, EPA will hold a public hearing Monday, July 21, 
2008, to receive public comment and answer questions concerning the 
proposed permits. The hearing will be held at EPA East Building, Room 
1153, 1201 Constitution Ave., NW., Washington, DC 20004, from 8 a.m. to 
4:30 p.m. EST. Any person may provide written or oral statements and 
data pertaining to the proposed permits at the public hearing. 
Depending on the number of persons who desire to make an oral 
statement, EPA may impose limits on the time allowed for oral 
statements, which may result in the full statement not being heard. 
Therefore, EPA recommends that all those planning to present an oral 
statement also submit a written statement. Any person not making an 
oral statement may also submit a written statement.

E. Public Meetings

    EPA and the U.S. Coast Guard are co-hosting three (3) public 
meetings. The U.S. Coast Guard has vast experience in researching, 
evaluating and regulating ballast water discharges, as well as expert 
knowledge of other discharges related to the normal operation of a 
vessel directly relevant to EPA's proposed vessel permits. The focus of 
each meeting is to present the proposed requirements of the VGP and RGP 
and the basis for those requirements, as well as to answer questions 
concerning the proposed permits. At these meetings, any person may 
provide written or oral statements and data pertaining to the proposed 
permits. The date, time and location of the public meetings are as 
follows:
     Washington, DC: Thursday, June 19, 2008, at the EPA East 
Building, Room 1153, 1301 Constitution Ave., NW., Washington, DC 20004, 
from 8 a.m. to 4:30 p.m.
     Portland, Oregon: Tuesday, June 24, 2008, at the Red Lion 
Hotel-Portland Convention Center, 1021 NE Grand Ave., Portland, OR 
97232, from 8 a.m. to 4:30 p.m. If you require overnight 
accommodations, contact the hotel directly to make reservations at Tel: 
503-235-2100.
     Chicago, Illinois: Thursday, June 26, 2008, at the Avenue 
Hotel, 160 E. Huron Street, Chicago, IL, 60611, from 8 a.m. to 4:30 
p.m. If you require overnight accommodations, contact the hotel 
directly at Tel: 877-AVE-5110.
    EPA encourages interested and potentially affected stakeholders to 
attend one of the scheduled public meetings and provide oral or written 
comments. These meetings are open to the public. Please note that the 
public meeting may close early if all business is finished. Oral or 
written comments received at the public meeting will be entered into 
the Docket. If you are unable to attend, you may submit comments to the 
EPA Water Docket at the address listed under ADDRESSES.

F. Web Casts

    EPA has scheduled a Web cast to provide information on the proposed 
permits and to answer questions for interested parties that are unable 
to attend the public meetings or hearing. The Web cast will be 
broadcast on July 2, 2008, from 12 p.m. to 1:30 p.m. ET. For 
information on how to register and attend the Web cast, see EPA's Web 
site at http://www.epa.gov/npdes/training approximately 2 weeks prior 
to the date of the scheduled Web cast.

G. Finalizing the Permits

    After the close of the public comment period, EPA will issue final 
permit decisions. These decisions will not be made until after all 
public comments have been considered and appropriate changes made to 
the permits. EPA's response to comments received will be included in 
the docket as part of the final permit decisions. For a discussion of 
the timing of permit finalization, see section III.E of this notice 
below.

H. Who Are the EPA Regional Contacts for This Proposed Permit?

    For EPA Region 1, contact Sara Green at USEPA REGION 1, 1 Congress 
Street Suite 1100, Mail Code: CIP, Boston, MA 02114-2023; or at tel.: 
(617) 918-1574; or e-mail at greene.sara@epa.gov.
    For EPA Region 2, contact James Olander at USEPA REGION 2, 290 
Broadway, New York, NY 10007-1866; or at tel.: (212) 637-3833; or e-
mail at olander.james@epa.gov.
    For EPA Region 3, contact Mark Smith at USEPA REGION 3, 1650 Arch 
Street, Mail Code: 3WP41, Philadelphia, PA 19103-2029; or at tel.: 
(215) 814-3105; or e-mail at smith.mark@epa.gov.
    For EPA Region 4, contact Marshall Hyatt at USEPA REGION 4, 61 
Forsyth Street, SW., Atlanta, GA 30303-8960; or at tel.: (404) 562-
9304; or e-mail at hyatt.marshall@epa.gov.
    For EPA Region 5, contact Sean Ramach at USEPA REGION 5, 77 West 
Jackson Boulevard, Mail Code: WN-16J, Chicago, IL 60604-3507; or at 
tel.: (312) 886-5284; or e-mail at ramach.sean@epa.gov.
    For EPA Region 6, contact J. Scott Wilson at USEPA REGION 6, 1445 
Ross Avenue, Suite 1200, Mail Code: 6WQPP, Dallas, TX 75202-2733; or at 
tel.: (214) 665-7511; or e-mail at wilson.scott@epa.gov.
    For EPA Region 7, contact Alex Owutaka at USEPA REGION 7, 901 North 
Fifth Street, Mail Code: WWPDWIMB, Kansas City, KS 66101; or at tel: 
(913) 551-7584; or e-mail at owutaka.alex@epa.gov.
    For EPA Region 8, contact Sandy Stavnes, at USEPA REGION 8, 1595 
Wynkoop St., Mail Code: 8P-W-WW, Denver, CO 80202-1129; or at tel: 
(303) 312-6117; or e-mail at stavnes.sandra@epa.gov.
    For EPA Region 9, contact Eugene Bromley at USEPA REGION 9, 75 
Hawthorne Street, Mail Code: WTR-5, San Francisco, CA 94105; or at 
tel.: (415) 972-3510; or e-mail at bromley.eugene@epa.gov.
    For EPA Region 10, contact Cindi Godsey at USEPA Region 10--Alaska 
Operations Office, Federal Building Room 537, 222 West 7th Avenue 
19 Mail Code: AOO/A, Anchorage, AK 99513-7588; or at tel.: 
(907) 271-6561; or e-mail at godsey.cindi@epa.gov.

II. Statutory and Regulatory History

A. The Clean Water Act

    Section 301(a) of the Clean Water Act (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

[[Page 34300]]

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'' as defined in 
Clean Water Act section 312. 33 U.S.C. 1362(6). One way a person may 
discharge a pollutant without violating the section 301 prohibition is 
by obtaining a section 402 National Pollutant Discharge Elimination 
System (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.

B. The History of the Exclusion of Vessels From the NPDES Program

    Less than one year after the CWA was enacted, EPA promulgated a 
regulation that excluded discharges incidental to the normal operation 
of vessels from 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 largely in its current form. 44 FR 32854, June 7, 1979. The 
current regulation identifies several types of vessel discharges as 
being subject to NPDES permitting, but specifically excludes discharges 
incidental to the normal operation of a vessel.

    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 
(D.C. Cir. 1977)), following its promulgation, the regulatory text 
relevant to discharges incidental to the normal operation of vessels 
went unchallenged, and has been in effect ever since.

C. The Legal Challenge

    In December 2003, the long-standing 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. 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. The petition 
asked 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 the 1999 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 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 (e.g., seafood processing facilities 
or oil exploration operations at sea) and of discharges overboard of 
materials such as trash, but not of discharges incidental to the normal 
operation of a vessel (e.g., ballast water) subject to the 40 CFR 
122.3(a) exclusion. EPA further explained that Congress had expressly 
considered and accepted the Agency's regulation in the years since its 
promulgation, and that Congress chose to regulate discharges incidental 
to the normal operation of vessels through programs other than CWA 
section 402 permitting. Thus, it was EPA's understanding that Congress 
had acquiesced to EPA's long-standing interpretation of how the CWA 
applied to vessels. Denial of the petition did not reflect EPA's 
dismissal of the significant impacts of aquatic invasive species, but 
rather the understanding that other 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.
    In the denial of the petition, EPA noted 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, Congress enacted new statutes 
which 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 (i.e., 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.). 
Furthermore, Congress made no effort to legislatively repeal EPA's 
interpretation of the NPDES program or to expressly mandate that 
discharges incidental to the normal operation of vessels be addressed 
through the NPDES permitting program. EPA reasoned that this 
Congressional action and inaction in light of Congress' 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, pursuant to CWA section 510.

[[Page 34301]]

    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. Nw. Envt'l Advocates et al. v. EPA, 2005 WL 
756614 (N.D. Cal.). The complaint was brought pursuant to the 
Administrative Procedure Act (APA), 5 U.S.C. 701 et seq., 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.

D. District Court Decision

    In March 2005, the Court determined that the exclusion exceeded the 
Agency's authority under the CWA. Specifically, in March 2005 the Court 
granted summary judgment to the plaintiffs:

    ``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 * * * ''.

    After this ruling, the Court granted motions to intervene on behalf 
of the Plaintiffs by the States of Illinois, New York, Michigan, 
Minnesota, Pennsylvania, and Wisconsin, and on behalf of the 
Government-Defendant by the Shipping Industry Ballast Water Coalition.
    Following submission of briefs and oral argument by the parties and 
interveners on the issue of a proper remedy, the Court 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.''

    This means that, effective September 30, 2008 (and assuming the 
order is not overturned or altered on appeal), discharges incidental to 
the normal operation of vessels currently excluded from NPDES 
permitting by that regulation, will become subject to CWA section 301's 
prohibition against discharging, 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.
    Because the Government respectfully disagrees with the District 
Court's decision, on November 16, 2006, EPA filed an appeal in the U.S. 
Court of Appeals for the Ninth Circuit. Oral argument was held on 
August 14, 2007, and a decision is pending. Additional material related 
to the lawsuit is contained in the docket accompanying these proposed 
permits and fact sheets.
    If the 9th Circuit reverses or otherwise modifies the District 
Court's decision on appeal, this proposed permit or any final permit 
may be terminated, reopened, or modified, as appropriate.

III. Scope and Applicability of the 2008 VGP and RGP

A. Geographic Coverage of VGP and RGP

    The proposed VGP and RGP apply to discharges incidental to the 
normal operation of a vessel identified as being eligible for coverage 
in the proposed permits, into waters subject to the permits. These 
waters are ``waters of the United States'' as defined in 40 CFR 122.2 
(extending to the reach of the 3-mile territorial seas as defined in 
section 502(8) of the CWA). The draft general permits would cover 
vessel discharges in the waters of the U.S. in all states and 
territories, regardless of whether a state is otherwise authorized to 
implement the NPDES permit program within its jurisdiction. For more 
information on this approach, see the fact sheets accompanying the 
draft permits.

B. Categories of Vessels Covered Under VGP and RGP

    The draft vessel general permit (VGP) applies to owners and 
operators of commercial vessels and recreational vessels that are 
greater than 79 feet (24.08 meters) in length. The recreational vessel 
permit (RGP) applies to all recreational vessels and un-inspected 
passenger vessels that are less than 79 feet in length, measured from 
bow to stern, excluding any attachments or extensions. Recreational 
vessels are vessels manufactured or operated primarily for pleasure or 
leased, rented, or chartered to another for the latter's pleasure (46 
United State Code (U.S.C.) 2101(25)). Recreational vessels include, but 
are not limited to, motorboats, sailboats, recreational fishing boats, 
personal watercraft, rowboats, canoes, and kayaks. Vessel owner/
operators must only comply with the provisions of the permit that are 
applicable to them. For instance, non-motorized vessels do not need to 
do any BMPs for fuel control, or the discharge of oil, including oily 
mixtures. This permit (RGP) also applies to un-inspected passenger 
vessels that are less than 79 feet in length, measured from bow to 
stern, excluding any attachments or extensions, whose operation is 
substantially similar to that of a recreational vessel of less than 79 
feet in length. For purposes of this permit, these vessels include 
sailboats for-hire, charter-fishing vessels engaging in hook-and-line 
fishing, and personal watercraft for hire. For purposes of the RGP, 
vessels that are not considered ``un-inspected passenger vessels'' and 
are not covered by this permit include, but are not limited to, 
commercial fishing vessels, commercial ferries, tug boats, freighters, 
water taxis, and small cruise ships. These vessels are covered by the 
VGP.

C. Summary of VGP Terms and Requirements

    The proposed VGP addresses 28 potential vessel discharge streams by 
establishing effluent limits, including Best Management Practices 
(BMPs) to control the discharge of the waste streams and constituents 
found in those waste streams. The discharge streams eligible for 
coverage under this proposed permit are: ballast water, deck washdown 
and runoff, bilge water, anti-fouling leachate from anti-fouling hull 
coatings, aqueous film forming foam (AFFF), boiler/economizer blowdown, 
cathodic protection, chain locker effluent, controllable pitch 
propeller hydraulic fluid, distillation and reverse osmosis brine, 
elevator pit effluent, firemain systems, freshwater layup, gas turbine 
water wash, graywater, motor gasoline and compensating discharge, non-
oily machinery wastewater, refrigeration and air condensate discharge, 
rudder bearing lubrication discharge, seawater cooling overboard 
discharge, seawater piping biofouling prevention, small boat engine wet 
exhaust, stern tube oily discharge, sonar dome discharge, underwater 
ship husbandry, welldeck discharges, graywater mixed with sewage from 
vessels, and exhaust gas scrubber wash water discharge.
    For each discharge type, the permit establishes effluent limits 
pertaining to the constituents found in the effluent and BMPs designed 
to decrease the amount of constituents entering the waste stream. A 
vessel might not produce all of these discharges, but a vessel owner or 
operator is responsible for meeting the applicable effluent limits and 
complying with all the effluent limits for every listed discharge that 
the vessel produces.
Discharge Authorization Timeframe
    To obtain authorization, the owner or operator of a vessel that is 
either 300 or more gross registered tons or has the capacity to hold or 
discharge more than 8 cubic meters (2113 gallons) of ballast water is 
required to submit a Notice of Intent (NOI) to receive permit coverage, 
beginning six months after the permit's issuance date, but no later 
than nine

[[Page 34302]]

months after the permit's issuance date. For vessels that were 
delivered to the owner or operator no later than 9 months after the 
permit's issuance date, the vessel will receive permit coverage on the 
date that EPA receives the complete NOI. Vessels that are delivered 
after that date will receive permit coverage 30 days after EPA receives 
the complete NOI.
    Vessels that meet the applicable eligibility requirements for 
permit coverage but are not required to submit an NOI, including 
vessels less than 300 gross registered tons with no more than 8 cubic 
meters of ballast water capacity and recreational vessels subject to 
the RGP, will be automatically authorized by the proposed permits to 
discharge according to the permit requirements.
Monitoring and Reporting
    The VGP requires routine self-inspection and monitoring of all 
areas of the vessel that the permit addresses. The routine self-
inspection must be documented in the ship's logbook. Analytical 
monitoring is required for certain types of vessels. The VGP also 
requires comprehensive annual vessel inspections, to ensure even the 
hard-to-reach areas of the vessel are inspected for permit compliance. 
If the vessel is placed in dry dock while covered under this permit, a 
dry dock inspection and report must be completed. Additional monitoring 
requirements are imposed on certain classes of vessels, based on unique 
characteristics not shared by other vessels covered under the VGP.
Vessel Type-Specific Requirements
    The permit imposes additional requirements for 8 specific types of 
vessels which have unique characteristics resulting in discharges not 
shared by other types of vessels. These vessel types are medium cruise 
ships, large cruise ships, large ferries, barges, oil or petroleum 
tankers, research vessels, rescue boats, and vessels employing 
experimental ballast water treatment systems. The permit requirements 
are designed to address the discharges from features unique to those 
vessels, such as parking decks on ferries and overnight accommodations 
for passengers on cruise ships.

D. Summary of RGP Permit Terms and Requirements

    The RGP addresses a smaller range of discharges than the VGP, 
because recreational vessels produce different types of discharges that 
are fewer in number and variety than the discharges from commercial and 
large recreational vessels covered under the VGP. Discharges most 
likely to occur from recreational vessels include anti-fouling hull 
leachate, deck washdown and runoff, graywater, engine cooling water, 
and bilge water. Constituents found in these discharge streams include 
aquatic nuisance species (ANS), oil and oily mixtures, nutrients, 
metals and toxins, and pathogens. The RGP is a much simpler permit than 
the VGP and primarily includes BMPs designed to minimize the amount of 
any discharge produced as well as reduce the likelihood the discharge 
will enter a waterbody. In addition to required BMPs, the permit 
includes a section of encouraged BMPs. These are recommended practices 
which can further reduce pollution from vessel discharges.
    The RGP does not require the vessel owner or operator to submit an 
NOI to receive permit coverage. As long as the vessel owner or operator 
has met the eligibility requirements found in the permit and discharges 
in accordance with the applicable terms of the permit, the eligible 
discharges are authorized.

E. Timing of Permit Finalization

    As discussed above, if the Northern District of California's order 
remains unchanged, the exclusion from NPDES permitting for discharges 
incidental to the normal operation of a vessel will be vacated as of 
September 30, 2008, which is approximately three and a half months from 
today's notice seeking public comment on the draft permits. Even for 
non-controversial and straightforward permits, it normally takes the 
Agency significantly more time than that to complete all of the tasks 
required to finalize a draft general permit, such as considering and 
responding to public comment, completing Coastal Zone Management Act 
consistency determinations, and completing the Clean Water Act section 
401 certification process. Although EPA expects significant public 
interest and comment on today's proposed permits, EPA will make every 
effort to finalize today's permits by the date of vacatur.

IV. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    The legal question of whether a general permit (as opposed to an 
individual permit) qualifies as a ``rule'' or as an ``adjudication'' 
under the Administrative Procedure Act (APA) has been the subject of 
periodic litigation. In a recent case, the court held that the CWA 
Section 404 Nationwide general permit before the court did qualify as a 
``rule'' and therefore that the issuance of the general permit needed 
to comply with the applicable legal requirements for the issuance of a 
``rule.'' National Ass'n of Home Builders v. U.S. Army Corps of 
Engineers, 417 F.3d 1272, 1284-85 (DC Cir.2005) (Army Corps general 
permits under section 404 of the Clean Water Act are rules under the 
APA and the Regulatory Flexibility Act; ``Each NWP [nationwide permit] 
easily fits within the APA's definition `rule.'. . . As such, each NWP 
constitutes a rule . . .'').
    As EPA stated in 1998, ``the Agency recognizes that the question of 
the applicability of the APA, and thus the RFA, to the issuance of a 
general permit is a difficult one, given the fact that a large number 
of dischargers may choose to use the general permit.'' 63 FR 36489, 
36497 (July 6, 1998). At that time, EPA ``reviewed its previous NPDES 
general permitting actions and related statements in the Federal 
Register or elsewhere,'' and stated that ``[t]his review suggests that 
the Agency has generally treated NPDES general permits effectively as 
rules, though at times it has given contrary indications as to whether 
these actions are rules or permits.'' Id. at 36496. Based on EPA's 
further legal analysis of the issue, the Agency ``concluded, as set 
forth in the proposal, that NPDES general permits are permits [i.e., 
adjudications] under the APA and thus not subject to APA rulemaking 
requirements or the RFA.'' Id. Accordingly, the Agency stated that 
``the APA's rulemaking requirements are inapplicable to issuance of 
such permits,'' and thus ``NPDES permitting is not subject to the 
requirement to publish a general notice of proposed rulemaking under 
the APA or any other law * * * [and] it is not subject to the RFA.'' 
Id. at 36497.
    However, the Agency went on to explain that, even though EPA had 
concluded that it was not legally required to do so, the Agency would 
voluntarily perform the RFA's small-entity impact analysis. Id. EPA 
explained the strong public interest in the Agency following the RFA's 
requirements on a voluntary basis: ``[The notice and comment] process 
also provides an opportunity for EPA to consider the potential impact 
of general permit terms on small entities and how

[[Page 34303]]

to craft the permit to avoid any undue burden on small entities.'' Id. 
Accordingly, with respect to the NPDES permit that EPA was addressing 
in that Federal Register notice, EPA stated that ``the Agency has 
considered and addressed the potential impact of the general permit on 
small entities in a manner that would meet the requirements of the RFA 
if it applied.'' Id.
    Subsequent to EPA's conclusion in 1998 that general permits are 
adjudications, rather than rules, as noted above, the DC Circuit 
recently held that nationwide general permits under section 404 are 
``rules'' rather than ``adjudications.'' Thus, this legal question 
remains ``a difficult one'' (supra). However, EPA continues to believe 
that there is a strong public policy interest in EPA applying the RFA's 
framework and requirements to the Agency's evaluation and consideration 
of the nature and extent of any economic impacts that a CWA general 
permit could have on small entities (e.g., small businesses). In this 
regard, EPA believes that the Agency's evaluation of the potential 
economic impact that a general permit would have on small entities, 
consistent with the RFA framework discussed below, is relevant to, and 
an essential component of, the Agency's assessment of whether a CWA 
general permit would place requirements on dischargers that are 
appropriate and reasonable. Furthermore, EPA believes that the RFA's 
framework and requirements provide the Agency with the best approach 
for the Agency's evaluation of the economic impact of general permits 
on small entities. While using the RFA framework to inform its 
assessment of whether permit requirements are appropriate and 
reasonable, EPA will also continue to ensure that all permits satisfy 
the requirements of the Clean Water Act.
    Accordingly, EPA has committed that the Agency will operate in 
accordance with the RFA's framework and requirements during the 
Agency's issuance of CWA general permits (in other words, the Agency 
commits that it will apply the RFA in its issuance of general permits 
as if those permits do qualify as ``rules'' that are subject to the 
RFA). In satisfaction of this commitment, during the course of this VGP 
and RGP proceeding, the Agency conducted the analysis and made the 
appropriate determinations that are called for by the RFA. In addition, 
and in satisfaction of the Agency's commitment, EPA will apply the 
RFA's framework and requirements in any future issuance of other NPDES 
general permits. EPA anticipates that for most general permits the 
Agency will be able to conclude that there is not a significant 
economic impact on a substantial number of small entities. In such 
cases, the requirements of the RFA framework are fulfilled by including 
a statement to this effect in the permit fact sheet, along with a 
statement providing the factual basis for the conclusion. A 
quantitative analysis of impacts would only be required for permits 
that may affect a substantial number of small entities, consistent with 
EPA guidance regarding RFA certification\1\.
---------------------------------------------------------------------------

    \1\ EPA's current guidance, entitled Final Guidance for EPA 
Rulewriters: Regulatory Flexibility Act as Amended by the Small 
Business Regulatory Enforcement and Fairness Act, was issued in 
November 2006 and is available on EPA's Web site: http://
www.epa.gov/sbrefa/documents/rfafinalguidance06.pdf. After 
considering the Guidance and the purpose of CWA general permits, EPA 
concludes that general permits affecting less than 100 small 
entities do not have a significant economic impact on a substantial 
number of small entities.
---------------------------------------------------------------------------

V. Analysis of Economic Impacts of VGP and RGP

    EPA determined that, in consideration of the discussion in Section 
IV above, the issuance of the VGP and RGP may have the potential to 
affect a substantial number of small entities. Therefore, in order to 
determine what, if any, economic impact these permits may have on small 
businesses, EPA conducted an economic assessment of these general 
permits. This economic analysis is included in the records for these 
permits. Based on this assessment, EPA concludes that despite a minimal 
economic impact on all entities, including small businesses, these 
permits are not likely to have a significant economic impact on a 
substantial number of small entities. For the RGP, the total annual 
estimated compliance cost per permittee ranges from $8.79 to $25.99 per 
year for motorboats, $5.39 to $22.59 for sailboats, and $0.29 to $2.39 
per year for non-motorized small craft. Nationally, the draft economic 
impact analysis indicates that the RGP has an expected cost of $88.2 
million annually.
    Including the ballast water and other discharge requirements, the 
draft economic impact analysis indicates that the best management 
practices in the VGP would cost between $5.6 million and $19.1 million 
annually. Including paperwork requirements, the permit is estimated to 
cost between $7.1 and $25.0 million annually. Dependent upon sector, 
median costs per firm range from $4 to $795 in the low end assumptions 
and from $53 to $1,598 in the high end assumptions. EPA applied a cost-
to-revenue test which calculates annualized pre-tax compliance cost as 
a percentage of total revenues and used a threshold of 1 and 3 percent 
to identify entities that would be significantly impacted as a result 
of this Permit. The total number of entities expected to exceed a 1% 
cost ratio ranges from 285 under low cost assumptions to 389 under high 
cost assumptions. Of this universe, the total number of entities 
expected to exceed a 3% cost ratio ranges from 71 under low cost 
assumptions to 76 under high cost assumptions. The total domestic 
flagged vessel universe that would be affected by this permit includes 
approximately 91,000 vessels. Accordingly, EPA concludes that this 
permit is unlikely to result in a significant economic impact on any 
businesses and in particular, small businesses. The economic analyses 
are available in the record for these permits.

    Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

    Dated: June 9, 2008.
Ira Leighton,
Acting Regional Administrator, EPA, Region 1.

    Dated: June 10, 2008.
Kevin Bricke,
Acting Director, Division of Environmental Planning and Protection, 
EPA, Region 2.

    Dated: June 10, 2008.
Carl-Axel P. Soderberg,
Division Director, Caribbean Environmental Protection Division, EPA, 
Region 2.

    Dated: June 9, 2008.
Jon M. Capacasa,
Director, Water Protection Division, EPA Region 3.

    Dated: June 9, 2008.
Jim Giattina,
Director, Water Management Division, EPA, Region 4.

    Dated: June 10, 2008.
Tinka G. Hyde,
Acting Director, Water Division, EPA, Region 5.

    Dated: June 10, 2008.
William Honker,
Acting Director, Water Quality Protection Division, EPA, Region 6.

    Dated: June 9, 2008.
William A. Spratlin,
Director, Water, Wetlands and Pesticides Division, EPA, Region 7.


[[Page 34304]]


    Dated: June 10, 2008.
Stephen S. Tuber,
Assistant Regional Administrator, Office of Partnerships and Regulatory 
Assistance, EPA, Region 8.

    Dated: June 10, 2008.
Alexis Strauss,
Director, Water Divsion, EPA, Region 9.

    Dated: June 11, 2008.
Michael Lidgard,
Acting Director, Office of Water and Watersheds, EPA, Region 10.
 [FR Doc. E8-13615 Filed 6-16-08; 8:45 am]
BILLING CODE 6560-50-P