[Federal Register Volume 74, Number 28 (Thursday, February 12, 2009)]
[Notices]
[Pages 7042-7046]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-3045]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-8772-4; EPA-HQ-OW-2008-0055]
Final National Pollutant Discharge Elimination System (NPDES)
General Permit for Discharges Incidental to the Normal Operation of a
Vessel for Alaska and Hawaii
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of final Vessel General Permit issuance for Alaska and
Hawaii.
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SUMMARY: EPA previously announced the finalization of the NPDES general
permit for discharges incidental to the normal operation of vessels,
also referred to as the Vessel General Permit (VGP), in the Federal
Register on December 29, 2008 (73 FR 79493). EPA did not finalize the
VGP for the states of Hawaii and Alaska, because as of permit
signature, EPA had not received a certification pursuant to section 401
of the Clean Water Act (CWA) from Hawaii or a final response on the
national consistency determination required by section 307(c)(1) of the
Coastal Zone Management Act (CZMA) from Alaska. EPA has since received
the required section 401 certification and CZMA response and has
amended the permit to reflect them. Today's action provides notice of
the final permit issuance for the states of Hawaii and Alaska.
The VGP was issued in response to a District Court ruling that
vacates, as of February 6, 2009, a long-standing EPA regulation that
excludes discharges incidental to the normal operation of a vessel from
the need to obtain an NPDES permit. As of February 6, 2009, discharges
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 two NPDES general
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
the information and data received along with other publicly available
information in developing two proposed vessel permits.
EPA published the two proposed permits and accompanying fact sheets
for public comment on June 17, 2008 (73 FR 34296). As proposed, the VGP
would have covered all commercial and non-recreational vessels and
those recreational vessels longer or equal to 79 feet, and the proposed
Recreational General Permit (RGP) would have covered recreational
vessels less than 79 feet in length. However, after the permits were
proposed, Congress enacted two new laws that impact the universe of
vessels covered under today's permit. On July 29, 2008, Senate bill S.
2766 (``the Clean Boating Act of 2008'') was signed into law (Pub. L.
110-288). This law provides that recreational vessels shall not be
subject to the requirement to obtain an NPDES permit to authorize
discharges incidental to their normal operation. As a result of this
legislation, EPA is not finalizing the proposed RGP and has also
modified the VGP, which included those recreational vessels over 79
feet, to eliminate that coverage. On July 31, 2008, Senate bill S. 3298
was signed into law (Pub. L. 110-299). This law generally imposes a
two-year moratorium during which time neither EPA nor states can
require NPDES permits for discharges (except ballast water discharges)
incidental to the normal operation of vessels of less than 79 feet and
commercial fishing vessels of any length. EPA is not taking final
action on the proposed permit as it would apply to these vessels and
has revised the final VGP to reflect the new law.
DATES: Today's action is effective on February 6, 2009. This effective
date is necessary to provide affected vessels the necessary permit
coverage under the Clean Water Act in light of the February 6, 2009
vacatur of the 40 CFR 122.3(a) NPDES permitting exemption.\1\ Under the
Agency's authority in 40 CFR Part 23, this permit (as applied to Alaska
and Hawaii) shall be considered issued for the purpose of judicial
review on February 6, 2009.\2\ Under section 509(b)
[[Page 7043]]
of the Clean Water Act, judicial review of this general permit can be
had by filing a petition for review in the United States Court of
Appeals within 120 days after the permit is considered issued for
purposes of judicial review. Under section 509(b)(2) of the Clean Water
Act, the requirements in this permit may not be challenged later in
civil or criminal proceedings to enforce these requirements. In
addition, this permit may not be challenged in other agency
proceedings. Deadlines for submittal of notices of intent are provided
in part 1.5 of the VGP. This permit also provides additional dates for
compliance with the terms of this permit.
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\1\ The U.S. District Court for the Northern District of
California has twice, at the request of parties to the litigation,
delayed the date of vacatur of the 40 CFR 122.3(a) exclusion for
discharges incidental to the normal operation of a vessel. See
Northwest Environmental Advocates et al. v. United States EPA, 2008
U.S. Dist. LEXIS 66738 (N.D. Cal. August 31, 2008) (extending the
date to December 19, 2008) and Northwest Environmental Advocates et
al. v. United States EPA, No. C 03-05760-SI (December 17, 2008)
(extending the date to February 6, 2009).
\2\ Under 40 CFR 23.2, actions such as today's would by default
be considered issued for purposes of judicial review two weeks after
publication in the Federal Register. However, in other contexts,
affected parties have expressed concern that deferring judicial
review of Agency permits beyond the point at which regulated
entities are obligated to comply with them may compromise judicial
review rights. EPA is therefore exercising its discretion under 40
CFR 23.2 to deem today's permit ``issued for purposes of judicial
review'' on the same date it becomes effective.
FOR FURTHER INFORMATION CONTACT: For further information on this final
vessel NPDES general permit, 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 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:
CommercialVesselPermit@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.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Final Permit Apply to Me?
The VGP applies to all vessels operating in a capacity as a means
of transportation, except recreational vessels as defined in CWA
section 502(25), Public Law 110-288, that have discharges incidental to
their normal operations into waters subject to this permit. With
respect to (1) commercial fishing vessels of any size as defined in 46
U.S.C. 2101 and (2) those non-recreational vessels that are less than
79 feet in length, the coverage under this permit is limited to ballast
water discharges only. Unless otherwise excluded from coverage by Part
6 of the permit, waters subject to this permit, means waters of the
U.S. as defined in 40 CFR 122.2.
B. How Can I Get Copies of These Documents and Other Related
Information?
1. Docket. EPA has established an official public docket for this
action under Docket ID No. EPA-HQ-OW-2008-0055. The official public
docket is the collection of materials, including the administrative
record, for the final permit, required by 40 CFR 124.18. It is
available for public viewing at the Water Docket in the EPA Docket
Center, (EPA/DC) EPA West, Room 3334, 1301 Constitution Ave., NW.,
Washington, DC 20460. Although all documents in the docket are listed
in an index, some information 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 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.
3. Response to Public Comments. EPA received 173 comments on the
proposed VGP from the shipping industry (108), States (28),
Environmental Groups and the public (37). EPA has responded to all
comments received and has included these responses in a separate
document in the public docket for this permit. See the document titled
Proposed VGP: EPA's Response to Public Comments.
III. Scope and Applicability of the 2008 VGP
A. CWA Section 401 Certification
EPA may not issue a permit authorizing discharges into the waters
of a State until that State has granted certification under CWA section
401 or has waived its right to certify (or been deemed to have waived).
33 U.S.C. 1341(a)(1); 40 CFR 124.53(a). For this permit, a State was
deemed to have waived its right to certify if it did not exercise that
right within 60 days from the date the State was notified of the draft
permit, unless EPA granted that State more time to certify based on
``unusual circumstances.'' 40 CFR 124.53(c)(3). If a State believed
that any permit condition(s) more stringent than those contained in the
draft permit were necessary to meet the applicable requirements of
either the CWA or State law, the State had an opportunity to include
those condition(s) in its certification. 40 CFR 124.53(e)(1). Hawaii
provided such conditions in its certification, and EPA has added them
to Part 6 of the VGP pursuant to CWA section 401(d). 33 U.S.C. 1341(d).
B. Coastal Zone Management Act Consistency Determination
The Coastal Zone Management Act (CZMA) and its implementing
regulations (15 CFR Part 930) require that any Federal agency activity
or federally licensed or permitted activity occurring within the
coastal zone (or outside the coastal zone by affecting the coastal
zone) of a state with an approved coastal zone management program
(CZMP) be consistent with the enforceable policies of that approved
program to the maximum extent practicable. Agency general permits that
do not involve case-by-case or
[[Page 7044]]
individualized determinations by the Agency are federal activities for
the purposes of CZMA section 307(c)(1). Following proposal of the draft
VGP, EPA provided the relevant state coastal zone management agencies
with its national consistency determination regarding the enforceable
policies in approved state CZMPs for the coastal zones including state
waters where the VGP would authorize discharges. 15 CFR 930.31(d). For
the VGP, EPA developed a national consistency determination pursuant to
the CZMA regulations at 15 CFR 930.36(e).
Under the CZMA process, several States provided conditions to the
VGP, based on specific enforceable coastal policies of the State, which
allowed the State to concur with EPA's consistency determination.
According to the regulations, EPA incorporated these conditions to the
maximum extent practicable. If a State coastal zone management agency's
conditions are not incorporated into the general permit or if the State
coastal zone management agency objects to the general permit, then the
general permit is not available for use by potential general permit
users in that State unless the applicant who wants to use the general
permit provides the State agency with the applicant's consistency
determination and the State agency concurs. 15 CFR 930.31(d). NOAA has
explained that ``a State objection to a consistency determination for
the issuance of a general permit would alter the form of CZMA
compliance required, transforming the general permit into a series of
case-by-case CZMA decisions and requiring an individual who wants to
use the general permit to submit an individual consistency
certification to the State agency in compliance with 15 CFR part 930.''
71 FR 788, 793. In States that have not provided conditions for
incorporation into the permit to allow the State to concur, as well as
States that have not objected to the permit, EPA's CZMA compliance
requirements derive from CZMA section 307(c)(1). Id.
Subsequent to the publication of the VGP on December 29, 2009, but
within the timeframes contemplated under the federal CZMA regulations
(based on information requests from the State coastal zone management
agency to EPA), the Alaska Division of Coastal and Ocean Management
concurred with EPA's national consistency determination on January 13,
2009, and therefore, potential permittees in Alaska's waters may now
seek coverage under the VGP.
C. Geographic Coverage of VGP
The VGP applies to discharges incidental to the normal operation of
a vessel identified as being eligible for coverage in the final permit,
into waters subject to the permit. These waters are ``waters of the
United States'' as defined in 40 CFR 122.2 (extending to the reach of
the 3-mile territorial sea as defined in section 502(8) of the CWA).
The final permit covers vessel discharges in the waters of the U.S. in
all States, Territories and Indian Country Land, 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 sheet accompanying the final permit.
D. Categories of Vessels Covered Under VGP
The final vessel general permit (VGP) applies to owners and
operators of non-recreational vessels that are 79 feet (24.08 meters)
and greater in length, as well as to owners and operators of commercial
vessels of less than 79 feet and commercial fishing vessels of any
length which discharge ballast water.
The final VGP does not apply to recreational vessels of any size,
commercial fishing vessels of any size which do not discharge ballast
water, and non-recreational vessels of less than 79 feet which do not
discharge ballast water. For non-recreational vessels of less than 79
feet in length and commercial fishing vessels that discharge ballast
water, the only effluent limit these vessels are subject to are the VGP
standards that apply to ballast water discharges.
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 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
[[Page 7045]]
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
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.\3\
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\3\ 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.
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V. Analysis of Economic Impacts of VGP
EPA determined that, in consideration of the discussion in Section
IV above, the issuance of the VGP may have the potential to affect a
substantial number of small entities. Therefore, in order to determine
what, if any, economic impact this permit may have on small businesses,
EPA conducted an economic assessment of the VGP and the RGP. 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, this permit is not
likely to have a significant economic impact on a substantial number of
small entities.
Including the ballast water and other discharge requirements, the
draft economic impact analysis indicates that the best management
practices in this permit would cost between $6.7 million and $16.7
million annually. Including paperwork requirements, the permit is
estimated to cost between $7.7 and $21.9 million annually for domestic
vessels. Including estimates of ballast water costs for foreign
vessels, the permit is expected to cost between $8.9 and $23.0 million
annually. Depending upon sector (vessel type), median costs per firm
range from $1 to $795 in the low-end assumptions and from $5 to $1,967
in the high-end assumptions (excluding median values from commercial
fishing vessels which are expected to be $0). Costs for the 95th
percentile range from $7 for the Deep Sea Coastal and Great Lakes
Passenger Vessels to $20,355 for marine cargo handling under low-end
cost estimates and from $88 to $35,190 for the same vessel classes for
high-end cost estimates (see table 7.1 of the economic assessment cost
estimates across vessel classes). 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 213 under low cost assumptions to 308 under high cost
assumptions. Of this universe, the total number of entities expected to
exceed a 3% cost ratio ranges from 55 under low cost assumptions to 73
under high cost assumptions. The total universe that would be affected
by this permit includes approximately 61,000 domestic flagged vessels
and 8,000 foreign flagged 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 analysis
is available in the record for the VGP.
V1. Paperwork Reduction Act
The information collection requirements in this permit have been
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. as part of
the NPDES Consolidated ICR. On September 28, 2008 EPA published the
first public notice of this ICR under the OMB number 2040-0004 and on
December 17, 2008, EPA published the final public notice for a 30 day
comment period. The information collection requirements for this permit
are not enforceable until OMB approves the ICR.
This information must be collected in order to appropriately
administer and enforce the terms and conditions of the Vessel General
Permit. This information collection is mandatory as authorized by Clean
Water Act Section 308 and all information collected will be treated as
Confidential Business Information (CBI).
The information collection burden for the paperwork collection
requirements of this permit is estimated to be 135,693 hours per year,
which represents a burden of 0.64 hours per response per year,
multiplied by a total of 210,759 responses per year from 65,625
respondents (note: to ensure that an adequate number of burden hours
are requested, the number of respondents is slightly higher than the
estimated 61,000 domestically flagged vessels identified in the
economic analysis that would be affected by this permit). The frequency
of responses varies, but includes every five years, annual, quarterly,
and occasionally/as needed, depending on the specific reporting
requirements. No reporting and recordkeeping costs beyond labor costs
are estimated for this permit.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information
[[Page 7046]]
unless it displays a currently valid OMB control number. The OMB
control numbers for EPA's regulations in 40 CFR are listed in 40 CFR
Part 9. When this ICR is approved by OMB, the Agency will publish a
technical amendment to 40 CFR Part 9 in the Federal Register to display
the OMB control number for the approved information collection
requirements contained in this final permit.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: February 2, 2009.
Alexis Strauss,
Director, Water Division, EPA Region 9.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: February 2, 2009.
Michael A. Bussell,
Director, Office of Water and Watersheds, EPA Region 10.
[FR Doc. E9-3045 Filed 2-11-09; 8:45 am]
BILLING CODE 6560-50-P