[Federal Register Volume 74, Number 28 (Thursday, February 12, 2009)]
[Pages 7042-7046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-3045]



[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 


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.

    \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: 
[email protected].
    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 [email protected].
    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 [email protected].


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 

    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\

    \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.

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]