[Federal Register Volume 79, Number 119 (Friday, June 20, 2014)]
[Notices]
[Pages 35347-35351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-14489]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9912-58-Region 2]
New York State Prohibition of Discharges of Vessel Sewage; Final
Affirmative Determination
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Determination.
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SUMMARY: Notice is hereby given that, pursuant to Clean Water Act
Section 312(f)(3), the State of New York has determined that the
protection and enhancement of the quality of the New York State (NYS or
the State) area of Lake Erie requires greater environmental protection,
and has petitioned the United States Environmental Protection Agency,
Region 2, for a determination that adequate facilities for the safe and
sanitary removal and treatment of sewage from all vessels are
reasonably available for those waters, so that the State may completely
prohibit the discharge from all vessels of any sewage, whether treated
or not, into such waters.
NYS has proposed to establish a ``Vessel Waste No Discharge Zone''
for the NYS area of Lake Erie stretching from the Pennsylvania-New York
State boundary to include the upper Niagara River to Niagara Falls. The
proposed No Discharge Zone encompasses approximately 593 square miles
and 84 linear shoreline miles, including the navigable portions of the
Upper Niagara River and numerous other tributaries and harbors,
embayments of the Lake including Barcelona Harbor, Dunkirk Harbor and
Buffalo Outer Harbor, and other formally designated habitats and
waterways of local, state, and national significance.
On December 6, 2012, the EPA completed a review of NYS's petition
and issued a tentative affirmative determination in the Federal
Register that adequate facilities for the safe and sanitary removal and
treatment of sewage from all vessels for such waters are reasonably
available. During the 30-day public comment period, the EPA received
significant comments regarding the availability of adequate pumpouts
for commercial vessels. Specifically, two commenters submitted that the
December 6, 2012 notice did not contain adequate information about the
availability of pumpout facilities for large commercial vessels.
Subsequently, the EPA and New York State collected additional
information to demonstrate the reasonable availability of pumpout
services for commercial vessels that use the New York area of Lake
Erie.
EPA Response to Public Comments on the September 27, 2013 Tentative
Affirmative Determination
On September 27, 2013, EPA published notice of its tentative
affirmative determination (``TAD'') that adequate facilities for the
safe and sanitary removal and treatment of sewage from all vessels are
reasonably available within the New York State waters of Lake Erie, and
its approval of New York's proposal to ban the discharge of treated and
untreated sewage from vessels into those waters under Clean Water Act
(``CWA'') Sec. 312(f)(3). (78 FR 59681) Public comments were solicited
for 30 days and the comment period ended on October 28, 2013.
EPA received a total of eight comments via letter and email. Six of
the commenters support EPA's tentative affirmative determination and
two commenters oppose it. All of the relevant comments received have
been considered, as discussed below, and EPA hereby issues a final
affirmative determination that adequate facilities for the safe and
sanitary removal and treatment of sewage from all vessels are
reasonably available within the New York State waters of Lake Erie.
Comment 1: Several commenters, including boaters, residents, Non-
Governmental Organizations (NGOs) and community advocates, expressed
strong support for the establishment of a vessel waste no discharge
zone (``NDZ'') for the New York waters of Lake Erie. Some commenters
pointed out that this action will reduce pathogens and chemicals,
improve water quality and further protect drinking water and restore
the Lake.
Response: The petition was submitted under CWA Sec. 312(f)(3),
which allows New York to establish a vessel sewage no discharge zone if
the state determines that the protection and enhancement of the quality
of some or all of the waters within the state require greater
environmental protection and if EPA determines that adequate facilities
for the safe and sanitary removal and treatment of sewage from all
vessels are reasonably available within those waters. Therefore, while
these comments are consistent with New York's determination of need,
that determination is beyond the scope of EPA's review.
Comment 2: Two commenters stated that New York's petition did not
include the additional information about available commercial pumpout
trucks that was included in the republication.
Response: In a letter to EPA dated September 6, 2013, prior to the
[[Page 35348]]
republication, DEC supplemented its petition with the commercial
pumpout information, and that information was subject to public review
and comment in the pending TAD.
Comment 3: Two commenters stated that the petition did not include
the information required to be submitted by New York State under 40 CFR
140.4(a).
Response: The commenters did not specify what information was
allegedly missing from New York's petition, and EPA has determined that
New York's petition supports a finding that adequate facilities for the
safe and sanitary removal and treatment of sewage from commercial
vessels are reasonably available. Specifically, the petition contains
information demonstrating that four pumpout truck companies are
available to serve the ports of Buffalo and Lackawanna, with a total of
ten trucks and a total pumpout capacity of 33,500 gallons.
Comment 4: Two commenters stated that the public record is
inadequate because it does not include any communications with, or
information provided by, the vendors to support EPA's determination and
because several questions suggested by the commenters were not asked of
the vendors.
Response: EPA is not required to publish all of its, or the
state's, fact-finding communications, as long as the data relied upon
by EPA is published and subject to public scrutiny and comment. The
Federal Register notice for the pending TAD contained all of the data
and criteria upon which EPA based its tentative determination,
including two criteria (hose fittings, flexibility and length, and head
pump pressure) that were suggested by the same two commenters and
incorporated by EPA and DEC in their evaluation of the adequacy of the
commercial pumpout companies. Other questions suggested by the two
commenters were deemed by EPA and DEC to be irrelevant to EPA's
determination, and therefore were not explored. For example, the
commenters asked that the petition include references, insurance
coverage, port access agreements, spill procedures, employee training
information, and testing and labeling of hoses, none of which is
required by the law or is otherwise necessary for EPA's determination.
Comment 5: Two commenters stated that three of the four commercial
pumpout companies ``declined to service [their] vessels outright (two
in writing, one orally),'' and submitted a copy of a fax from Macken
Services, Inc., an email from Ball Toilet and Septic Service and an
email from Western New York Septic Tank Cleaning Service purporting to
demonstrate those declinations.
Response: The purported declinations are responses to a different
and more elaborate survey that the commenters sent to the companies,
which contains several questions that are irrelevant to EPA's finding
of adequacy. Therefore, a refusal to answer that survey is not
equivalent to a refusal to provide the pumpout services that the
companies specifically told EPA and DEC that they could provide.
Additionally, the purported response from Macken Services, Inc, is
actually consistent with EPA's findings, even if it doesn't answer all
of the commenter's additional questions to their satisfaction. Further,
the responses from Ball Toilet and Septic Service and Western New York
Septic Tank Cleaning Services are not specific about which questions
they are responding to, and therefore, do not rebut the answers that
the companies provided for New York's petition. Finally, there is no
evidence of the purported oral declination. While it might be presumed
that the commenters are referring to Meyer Septic Service (because the
comments do not include any purported written declination from Meyer),
there is no evidence or description of that alleged oral declination.
Comment 6: Two commenters stated that Ball Toilet and Septic
Service does not meet the minimum criteria because it has no spill
control plan or sewage pumping training, and because it only has three
trucks, with holding tanks that are too small for vessels that hold
4,000-111,000 gallons, require 3 hours advance notice, and cannot
guarantee their availability.
Response: A spill control plan is not required for EPA to determine
that the pumpout services are reasonably available. Regarding the
holding capacity of the pumpout trucks, during the previous public
comment period, one of these commenters submitted evidence to EPA that
their members' vessels typically discharge sewage while holding less
than 3,000 gallons, and, among the four companies that are available to
provide pumpout truck services, there are a total of eight trucks with
tanks equal to or greater than 3,500 gallons. Therefore, the pumpout
truck companies have sufficient capacity to meet the needs of the
commenters' vessels. Moreover, one commenter states that its members'
vessels call on the Port of Buffalo 80 times per year (every 4-5 days),
and another commenter states that its members' vessels each transit
through the New York portion of Lake Erie approximately 30 times per
year (also see Comment 10, below). These numbers are consistent with
the numbers contained in the petition, and with EPA's determination
that the four pumpout truck companies are capable of serving the waste
disposal needs of the commenters' members' vessels.
Comment 7: One commenter stated that New York's petition should be
denied because EPA Region 5 denied a petition from Ohio, in 2004, to
designate the Ohio section of Lake Erie a no discharge zone.
Response: Ohio's petition submitted 10 years ago has no bearing on
the instant determination because EPA must evaluate each petition on
its own facts and merits in determining whether adequate facilities for
the safe and sanitary removal and treatment of sewage from all vessels
are reasonably available.
Comment 8: Two commenters stated that New York's petition does not
establish the need for greater environmental protection because their
members' discharges conform to Coast Guard standards for marine
sanitation devices (``MSDs'') and Canadian effluent limitations for
commercial vessels, respectively, and therefore pose no threat to human
health or the marine environment.
Response: Section 312(f) of the CWA specifically contemplates the
imposition of a ban on the discharge of treated or untreated sewage,
notwithstanding any other requirements to control or limit pollutants
in those discharges. Furthermore, EPA's determination in the instant
matter is limited to evaluating the adequacy of pumpout facilities, and
does not include a review of the adequacy of New York's Certification
of Need or the water quality impacts of any particular pollutant or
source.
Comment 9: One commenter stated that the establishment of a NDZ is
an inadequate solution to water pollution in Lake Erie and also argues
that its members' vessels should be exempt from the ban because the
petition does not demonstrate that they are a significant source of
water pollution.
Response: Section 312(f) of the CWA does not require that the NDZ
be a total solution to all water pollution problems in the proposed
NDZ, or that the state demonstrate that any particular vessels are a
significant source of pollution.
Comment 10: One commenter stated that EPA understates the vessel
traffic in the proposed NDZ, and that the number is closer to 3,000
transits per year for its 100 member vessels.
Response: This number of vessels contradicts the commenter's claim,
in the same comment letter, that it has 80
[[Page 35349]]
member vessels. In any event, as noted above, even assuming 3,000
transits for 100 vessels, each vessel would make, on average, 30
transits per year. Furthermore, not every vessel will need to discharge
every time it transits through the Lake Erie NDZ.
Comment 11: Two commenters stated that EPA has failed to answer the
state's petition within the 90 days required under the regulations, and
therefore lacks authority to make the determination.
Response: EPA extended the public comment period and its
consideration of this petition, including issuing a second TAD with
additional information, in response to the same commenters' request for
an extension of time to comment on the first TAD and the same
commenters' request, which EPA granted, for a meeting in order to share
their concerns about the petition. Therefore, those commenters have not
been harmed by EPA's extended consideration of the petition and have no
valid objection to the extended timeline for which they advocated and
from which they benefitted.
Comment 12: One commenter stated that the petition should have been
reviewed under CWA Sec. 312(f)(4)(B), as a request to only ban vessel
sewage discharges in specified drinking water intake zones.
Response: The petition was submitted under CWA Sec. 312(f)(3).
While New York notes in the petition that much of the proposed zone
could be designated as an NDZ under CWA Sec. 312(f)(4)(B), which
allows for the establishment of NDZs in drinking water intake zones,
the petition goes on to state that, in order to designate the entire
New York State section of Lake Erie as an NDZ, the state was submitting
the information required for a CWA Sec. 312(f)(3) petition, namely a
Certification of Need, and a demonstration of the adequacy of pumpout
facilities. Significantly, the petition contains no information about
the location or extent of drinking water intake zones, nor does it
contain any request to create NDZs in drinking water intake zones.
FOR FURTHER INFORMATION CONTACT: Moses Chang, (212) 637-3867, email
address: [email protected].
The EPA Region 2 NDZ Web site is: http://www.epa.gov/region02/water/ndz/index.html. A copy of the State's NDZ petition can be found
there.
SUPPLEMENTARY INFORMATION: Notice is hereby given that the State of New
York has petitioned the United States Environmental Protection Agency,
Region 2, (EPA) pursuant to section 312(f)(3) of Public Law 92-500 as
amended by Public Law 95-217 and Public Law 100-4, that adequate
facilities for the safe and sanitary removal and treatment of sewage
from all vessels are reasonably available for the NYS area of Lake
Erie.
New York State's Certification of Need
The New York State Department of Environmental Conservation (DEC)
developed its petition in collaboration with the New York State
Department of State (DOS) and the New York State Environmental
Facilities Corporation (EFC) in order to establish a vessel waste No
Discharge Zone (NDZ) on the open waters, tributaries, harbors and
embayments of the New York State area of Lake Erie, and has submitted a
Certification of the Need for Greater Protection and Enhancement of
Lake Erie waters. Below is a summary of the basis for New York's
certification.
The Great Lakes are the largest group of freshwater lakes on Earth,
containing 95% of the fresh surface water in the United States and
acting as the largest single reservoir on Earth. The glacial history
and the influence of the Lakes themselves create unique conditions that
support a wealth of biological diversity, including over 200 globally
rare plants and animals and more than 40 species that are found nowhere
else in the world.
Lake Erie is the smallest and shallowest of the Great Lakes, with
depths that range from an approximate average of 24 feet in the western
basin, to 82 feet in the deeper eastern basin. Because of its
shallowness, it warms quickly in the spring and summer and cools
quickly in the fall. As a result, Lake Erie is the most biologically
productive of the Great Lakes.
The Lake Erie watershed is also home to approximately one-third of
the total human population of the Great Lakes basin--11.6 million
people (10 million in the U.S. and 1.6 million in Canada), including 17
metropolitan areas with more than 50,000 residents. The majority, 11
million people, receive their drinking water from the Lake. Of all the
Great Lakes, Lake Erie is exposed to the greatest stress from
urbanization, industrialization and agriculture. Because the Lake Erie
basin supports the largest population, it also surpasses all the other
Great Lakes in the amount of effluent discharged from sewage treatment
plants.
There are 18 designated Significant Coastal Fish and Wildlife
Habitats in the two counties that comprise New York's Lake Erie
shoreline including: Cattaraugus Creek, Dunkirk Harbor, Buckhorn Island
Wetlands and Grand Island Tributaries. These habitats are essential to
the survival of a large portion of lake fish or wildlife population and
support populations of species which are of special concern and which
have significant commercial, recreational, and educational value.
The New York State shoreline and waters of Lake Erie also host a
variety of swimming, boating and recreational activities. These
recreational activities act as a source of revenue to the regional
economy by bringing people to the shoreline, where they patronize local
businesses.
Virtually all of Lake Erie is classified by New York State as Class
A waters. This classification means that the best uses of these waters
are for drinking, culinary or food processing purposes, recreation and
fishing, and that the waters shall be suitable for fish, shellfish, and
wildlife propagation and survival. Also, when the water in the Lake is
used as a source of drinking water, it must comply with the New York
State Department of Health's (DOH) drinking water safety standards.
There are currently six New York municipal and community water
supplies, including Buffalo and Erie County, that draw water from Lake
Erie to serve approximately 275,000 people.
In summary, as one of the nation's premier water bodies, Lake Erie
supports several important uses, including drinking water supplies,
valuable habitats, commercial shipping, recreational boating and other
recreational activities, and serves as an economic engine for the
region. The protection and enhancement of the open waters, tributaries,
harbors and embayments of the New York State area of Lake Erie require
greater protection than is afforded by applicable federal standards. An
NDZ designation covering the NYS waters of the Lake represents one
component of a comprehensive approach to water quality management,
which also includes initiatives to control point and non-point source
pollution, including pollution associated with municipal discharges,
combined sewer overflows, and storm water runoff.
Adequacy and Availability of Sewage Pumpout Facilities
Adequate pumpout facilities for recreational vessels are defined,
under the Clean Vessel Act, as one pumpout station for every 300-600
boats. See Clean Vessel Act: Pumpout Station and Dump Station Technical
Guidelines (Federal Register, Vol. 59, No. 47, March 10, 1994). Two
major sources of information were consulted to develop a reasonable
estimate of recreational vessel population. The first was DOS's
[[Page 35350]]
Clean Vessel Act Plan (``Statewide Plan''), released in 1996. Using
data from the Statewide Plan, the estimated number of recreational
vessels in each of the counties bordering Lake Erie is 2,029. The
second source for the State's estimate of the recreational vessel
population is boater registrations, obtained through the New York State
Office of Parks, Recreation and Historic Preservation's 2010 Boating
Report (OPRHP Report) for the counties of Erie and Chautauqua (all of
which have shoreline on Lake Erie). The data in the OPRHP Report yields
an estimate of 2,204 vessels with marine sanitation devices (MSDs) in
the respective counties, which are assumed to operate in Lake Erie.
The State provided sufficient information about fifteen pumpout
facilities that are publicly available for use by recreational and
small commercial vessels in the New York State area of Lake Erie, and
which either discharge to a holding tank, to a municipal wastewater
treatment plant or to an on-site septic system. All fifteen were
created through funding provided by the Clean Vessel Act (CVA) Grant
Program, and are thus required to be open to the public. Nine
additional marinas are located along Lake Erie in New York State,
including five at which CVA funding could support the development of
future pumpout facilities for recreational and small commercial
vessels. However, only the fifteen CVA-funded facilities were
considered in determining the adequacy and availability of pumpout
facilities for those vessels. Those facilities are summarized in Table
1, below. Using those fifteen facilities, and the most conservative
estimate of small vessel usage of the NYS area of the Lake, the ratio
of pumpout facilities to recreational vessels is 15:2,204, or 1:147.
This ratio falls well within the range recommended in the Clean Vessel
Act guidance, and therefore demonstrates that adequate pumpout
facilities for the safe and sanitary removal and treatment of sewage
for recreational and small commercial vessels are reasonably available
for the New York State area of Lake Erie.
Lake Erie is also used by large commercial vessels. The commercial
vessel population was estimated using data from the National Ballast
Information Clearinghouse, which records ballast water discharge
reports for ships arriving, among other places, at the commercial ports
in Buffalo and Lackawanna. In 2010, ballast manifests showed 62 vessels
arriving at the Port of Buffalo and one arriving at the Gateway
Metroport, in Lackawanna. The majority (58) of these vessels were
bulkers, with two passenger ship arrivals and one more listed as
``other.'' The single arrival in Lackawanna was also a bulker. Two
commenters representing commercial vessel operators submitted comments
stating that more than 62 large commercial vessels use the New York
State area of Lake Erie. One commenter estimated that the number was
closer to 80, while the other commenter estimated that the number was
``over a hundred.''
Although there is no fixed commercial vessel pumpout facility at
either the Port of Buffalo or the Port of Lackawanna, information
submitted in the petition, and by companies that provide mobile pumpout
services, demonstrates that at least four companies are available and
qualified to provide pumpout services to large commercial vessels at
either port. In addition to commenting on the number of commercial
vessels using the NYS area of Lake Erie, the two commenters submitted
criteria they believe are necessary for determining whether a pumpout
truck is able to service their vessels. Those criteria were taken into
consideration, and were partially incorporated into the list of final
criteria the EPA used to determine the reasonable availability of those
services. In addition, one commenter confirmed that, while large
commercial vessels can hold multiple thousands of gallons of
wastewater, it is more likely that when these vessels discharge sewage,
their holding tanks contain less than 4,000 gallons of wastewater.
Based on all of this information, the EPA had determined that four
mobile pumpout companies, with approximately ten pumpout trucks (listed
in Table 2, below), are able to provide pumpout services to large
commercial vessels at the ports of Buffalo and Lackawanna. Assuming,
conservatively, that 100 large commercial vessels use the NYS area of
Lake Erie and given that at least four companies with as many as ten
pumpout trucks are able to provide pumpout services to these vessels at
both New York ports, the ratio of pumpout facilities to commercial
vessels is at least 4:100, or 1:25. While the Clean Vessel Act guidance
applies, by its terms, only to recreational vessels, the ratio it
recommends is instructive for purposes of determining the reasonable
availability of pumpout services for large commercial vessels as well.
In light of the relatively low ratio of pumpout companies to large
commercial vessels (and the even lower ratio of pumpout trucks to large
commercial vessels), adequate pumpout facilities for the safe and
sanitary removal of sewage for large commercial vessels are reasonably
available for the New York State area of Lake Erie.
Table 1--List of Sewage Pumpout Stations in the Lake Erie NDZ Serving Recreational and Small Commercial Vessels
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Water
Number Name Location Contact Days and hours of depth Fee
information operation (feet)
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1............ City of Dunkirk- Dunkirk Harbor.... 716-366-9882 April 1-November 6'-7' $5.00
Municipal Dock. 15, 6 a.m.-6 p.m..
2............ Niagara Frontier Buffalo Harbor and 716-855-7230 May 15-October 15, 6'-8' 0.00
Trans. Authority-- Buffalo River. 7:00 a.m.-10:30
Small Boat Harbor. p.m..
3............ RCR Yachts Skyway Buffalo Harbor and 716-856-6314 April 1-November 12' 5.00
Marina. Buffalo River. 30, 8:30 a.m.-
5:30 p.m..
4............ City of Buffalo-- Buffalo Harbor and 716-851-5389 May 1-October 15, 10' 6.50
Erie Basin Marina. Buffalo River. 7:00 a.m.-7:00
p.m..
5............ Rich Marine Sales, Buffalo Harbor and 716-873-4060 May 1-November 1, 6' 5.00
Inc.. Buffalo River. 9:00 a.m.-5:00
p.m..
6............ Harbour Place Buffalo Harbor and 716-876-5944 April 15-October 12' 5.00
Marine Sales. Inc. Buffalo River. 31, 24 Hours.
7............ NYSOPRHP--Beaver Grand Island...... 716-278-1775 May 15-October 15, 10' 5.00
Island State Park 24 Hours.
Transient Marina.
[[Page 35351]]
8............ Blue Water Marine.. Grand Island...... 716-773-7884 May 1-November 1, 5' 0.00
9:00 a.m.-7:00
p.m..
9............ Mid River Marina Tonawanda Creek... 716-875-7447 April 1-September 5' 5.00
Inc. 30, 9:00 a.m.-
6:00 p.m..
10........... Collins Marine Inc. Tonawanda Creek... 716-875-6000 April 1-November 6' 5.00
1, 24 Hours.
11........... The Shores/Placid Tonawanda Creek... 716-625-8235 April 15-October 12' 5.00
Harbor Marine-- 15, 9:00 a.m.-
Tonawanda Marine 9:00 p.m..
Develop Corp.
12........... Niagara River Yacht Tonawanda Creek... 716-693-2882 May 1-November 1, NA 3.00
Club. Dusk-Dawn.
13........... Smith Boys of North Tonawanda Creek... 716-695-3472 April-November, 24 8' 0.00
Tonawanda--Upgrade. Hours.
14........... East Pier Marine, Tonawanda Creek... 716-693-6604 May 1-November 15, 5' 5.00
Inc. 9:00 a.m.-8:00
p.m..
15........... NYSOPRHP--Big Six Grand Island...... 716-278-1775 May 1-November 1, 10' 5.00
Mile Creek State 24 Hours.
Marina.
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Table 2--List of Sewage Pumpout Services Capable of Serving Large Commercial Vessels in the Proposed, Lake Erie NDZ
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Fee/
Number of sewage Head pump Truck serve cost
Number Name of company Location & contact hauler pumpout Days and hours of Hose fittings & pressure to the port per
information trucks/holding operation length (feet) reach 46.5 area 1,000
capacity ft gal
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1............ Macken Services, 22 Simme Road, 3 sewage trucks--2 Mon-Fri 7:00 a.m.- Flexible 100 ft... Yes........ Yes........ $230
Inc. Lancaster, NY 4,000 gal and 1-- 5:00 p.m.; or by
14086, Tel--716 2,500 gal. appointment.
683 0704.
2............ Meyer Septic 7130 Olean Road, 3 sewage trucks-- Mon-Fri 8:00 a.m.- Flexible up to 175 Yes........ Yes........ 255
Service. South Wales, NY 3,500 gal each. 2:00 p.m.; or by ft.
14139, Tel--716 appointment.
652 0553.
3............ Western New York 3045 Daniels Road, 2 sewage truck-- Mon-Fri 7:00 a.m.- Flexible up to 200 Yes........ Yes........ 350
Septic Tank Wilson, NY 14172, 4,000 gal each. 5:00 p.m.; or by ft.
Cleaning Service. Tel--716 751 9611. appointment.
4............ Ball Toilet & 3725 Jeffrey Blvd., 2 sewage truck-- Mon-Fri 6:00 a.m.- Flexible up to 200 Yes........ Yes........ 230
Septic Service. Blasdell, NY 1,000 gal and 4:30 p.m.; or by ft.
14219, Tel--716 5,000 gal. appointment.
823 3606.
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Based on the information above, the EPA hereby makes a final
affirmative determination that adequate facilities for the safe and
sanitary removal and treatment of sewage from all vessels are available
for the waters of the New York State area of Lake Erie.
Dated: June 4, 2014.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2014-14489 Filed 6-19-14; 8:45 am]
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