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[Federal Register: September 2, 2010 (Volume 75, Number 170)]
[Proposed Rules]               
[Page 53914-53925]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02se10-26]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 140

[EPA-R09-OW-2010-0438; FRL-9196-3]
RIN 2009-AA04

 
Marine Sanitation Devices (MSDs): Proposed Regulation To 
Establish a No Discharge Zone (NDZ) for California State Marine Waters

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to establish a No Discharge Zone (NDZ) for 
sewage discharges from: Large passenger vessels; and oceangoing vessels 
of 300 gross tons or more (referred to throughout this proposed rule as 
``Large oceangoing vessels'') with two days or more sewage holding 
capacity to California State marine waters pursuant to Section 
312(f)(4)(A) of the Clean Water Act (CWA), 33 U.S.C. 1322(f)(4)(A). 
This action is being taken in response to an April 5, 2006 application 
from the California State Water Resources Control Board (State) 
requesting establishment of this NDZ. Under Section 312(f)(4)(A), if 
EPA determines upon application by a State that the protection and 
enhancement of the quality of specified waters within such State 
requires such a prohibition, then EPA shall by regulation completely 
prohibit the discharge of any sewage (whether treated or not) from a 
vessel into such waters. California State marine waters would be 
defined as the territorial sea measured from the baseline, as 
determined in accordance with the Convention on the Territorial Sea and 
the Contiguous Zone, and extending seaward a distance of three miles, 
and would also include all enclosed bays and estuaries subject to tidal 
influences from the Oregon border to the Mexican border. (Federal Clean 
Water Act Section 502(8)). State marine waters also extend three miles 
from State islands, including the Farallones and the Northern and 
Southern Channel Islands. A map of California State marine waters can 
be obtained or viewed at the EPA's Web site at http://www.epa.gov/region9/water/no-discharge/overview.html, or by calling (415) 972-3476. 
It should be noted that effective March 2009, the National Oceanic and 
Atmospheric Administration (NOAA) established prohibitions on the 
discharge of sewage from large vessels in waters within the boundaries 
of the four National Marine

[[Page 53915]]

Sanctuaries along the California coast (73 FR 70487).

DATES: Comments must be submitted to EPA on or before November 1, 2010.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OW-
2010-0438, by one of the following methods: 1. Federal eRulemaking 
Portal: http://www.regulations.gov. Follow the on-line instructions. 2. 
E-mail: ota.allan@epa.gov. 3. Mail or deliver: Allan Ota (WTR-8), U.S. 
Environmental Protection Agency Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105-3901.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at http://www.regulations.gov, including any personal information provided, 
unless the comment includes Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. 
Information that you consider CBI or otherwise protected should be 
clearly identified as such and should not be submitted through http://www.regulations.gov or e-mail. http://www.regulations.gov is an 
``anonymous access'' system, and EPA will not know your identity or 
contact information unless you provide it in the body of your comment. 
If you send e-mail directly to EPA, your e-mail address will be 
automatically captured and included as part of the public comment. 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.
    Docket: The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available in either location 
(e.g., CBI). To inspect the hard copy materials, please schedule an 
appointment during normal business hours with the contact listed in the 
FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Allan Ota, Wetlands Office, Water 
Division, EPA Region 9, 75 Hawthorne Street (WTR-8), San Francisco, CA 
94105, (ota.allan@epa.gov).

SUPPLEMENTARY INFORMATION:

I. Background of Clean Water Act Section 312

    Clean Water Act Section 312, 33 U.S.C. 1322, (hereafter referred to 
as ``Section 312''), regulates the discharge of sewage from vessels 
into the navigable waters. Pollutants most frequently associated with 
sewage discharges include solids, nutrients, pathogens, petroleum 
products, heavy metals, pesticides, pharmaceuticals, and other 
potentially harmful compounds.\1\ Sewage discharges contaminate 
shellfish beds, pollute drinking water supplies, harm fish and other 
aquatic wildlife, and cause damage to coral reefs.
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    \1\ Page 33 of the April 5, 2006 State Application/
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    Direct contact with these pollutants can have serious human health 
effects, with children, the elderly, and individuals with compromised 
immune systems being most susceptible. While data specifically 
associating disease outbreaks with sewage discharges from vessels are 
not available, data summarizing disease outbreaks and beach closures 
due to waterborne pathogens are available. During 2005-2006, the most 
recent period for which data are available, waterborne disease 
outbreaks associated with pathogen exposures in recreational water were 
reported by 31 States and territories through the Centers for Disease 
Control's Waterborne Disease and Outbreak Surveillance System.\2\ 
During this period, 4,412 people were reported ill, resulting in 116 
hospitalizations and five deaths. Thirty of these outbreaks were 
reported in California.\3\ These data include exposures to pathogens at 
beaches and other natural swimming locations, but pathogen sources were 
not specifically identified.
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    \2\ Yoder, et al., 2008, Surveillance for Waterborne Disease and 
Outbreaks Associated with Recreational Water Use and Other Aquatic 
Facility-Associated Health Events--United States, 2005-2006. Centers 
for Disease Control, Surveillance Summaries, 57(SS09), September 12, 
2008.
    \3\ Yoder, et al., 2008.
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    When pathogen levels exceed water quality standards, States and 
territories may issue swimming advisories or close beaches to swimming. 
EPA's Beach Monitoring and Notification program reports that of the 
3,740 coastal beaches monitored in 2008, 1,210 (32 percent) had at 
least one swimming closure or advisory and coastal beaches were under 
swimming closures or advisories about 5 percent of the time, similar to 
the previous two years. For 2007, the last year for which data was 
available, 138 of the 424 monitored beaches in California had at least 
one water quality advisory due to water quality standard 
exceedances.\4\ According to the State's California Beach Water Quality 
Information Page in 2005, the last year reported, there were 104 beach 
closure events for a total of 486 beach days because monitoring 
indicated elevated bacteria levels.\5\
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    \4\ EPA, 2009, National Summary: 2008 Swimming Season Update. 
EPA 823-F-09-005, May 2009.
    \5\ State Water Resources Control Board, California Beach Water 
Quality Information page: http://www.swrcb.ca.gov/water_issues/programs/beaches/beach_water_quality/.
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    Shellfish beds are also vulnerable to coastal pollutants resulting 
in closures when water quality standards are exceeded. In 2001, the 
last comprehensive national study of water quality data at shellfish 
beds revealed that 40 percent were unsuitable for harvesting.\6\ 
Pathogens from a variety of sources, including urban and agricultural 
runoff, vessel discharges, sewage treatment plants and septic systems 
can contribute to shellfish bed contamination, closure, and illness in 
human shellfish consumers.\7\
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    \6\ EPA, 2001. National Coastal Condition Report. United States 
Environmental Protection Agency. Office of Research and Development 
and Office of Water, Washington, DC EPA-620/R-01/005.
    \7\ EPA National Estuary Program: http://www.epa.gov/nep/challenges.html.
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    Section 312(h) prohibits vessels equipped with installed toilet 
facilities from operating on the navigable waters (which include the 
three mile territorial seas), unless the vessel is equipped with an 
operable marine sanitation device (MSD), certified by the Coast Guard 
to meet applicable performance standards. 33 U.S.C. 1322(h). The 
provisions of section 312 are implemented jointly by EPA and the Coast 
Guard. EPA sets performance standards for MSDs and is involved in 
varying degrees in the establishment of no discharge zones (NDZs) for 
vessel sewage. 33 U.S.C. 1322(b) and (f). The Coast Guard is 
responsible for developing regulations governing the design, 
construction, certification, installation and operation of MSDs, 
consistent with EPA's performance standards. 33 U.S.C. 1322(b) and (g); 
see also 33 CFR part 159. The Coast Guard's responsibility includes 
certifying MSDs for installation on U.S. flagged vessels. There are 
three types of MSDs:
     Type I MSDs are flow-through treatment devices that 
commonly use maceration and disinfection for the treatment of sewage. 
Type I devices may be installed only on vessels less than or equal to 
65 feet in length. The performance standard applied to Type I MSDs is 
to produce an effluent with no more than 1000 fecal coliform count per 
100 mL, with no visible floating solids.
     Type II MSDs are also flow-through treatment devices, 
which may employ biological treatment and disinfection, although some 
Type II MSDs use maceration and disinfection. Type II MSDs may be 
installed on vessels of any

[[Page 53916]]

length. The performance standard applied to Type II MSDs is to produce 
an effluent with no more than 200 fecal coliform per 100 mL, and no 
more than 150 mg total suspended solids per liter.
     Type III MSDs are holding tanks, where sewage is stored 
until it can be disposed of shore-side or at sea (beyond three miles 
from shore). Type III MSDs may be installed on vessels of any length. 
[33 U.S.C. 1322 (b and h), 40 CFR 140.3; 33 CFR part 159].
    CWA section 312 generally preempts State regulation of the 
discharge of sewage from vessels: ``no State or political subdivision 
thereof shall adopt or enforce any statute or regulation of such State 
or political subdivision with respect to the design, manufacture, or 
installation or use of any [MSD] on any vessel subject to the provision 
of [CWA section 312].'' CWA Sec.  312(f)(1)(A), 33 U.S.C. 
1322(f)(1)(A). Under Section 312(f), however, States may, in certain 
circumstances, request that EPA establish no discharge zones (``NDZs'') 
for vessel sewage or, after required findings are made by EPA, 
establish such zones themselves.
    There are three types of NDZ designations. First, under section 
312(f)(3) States may designate portions or all of their waters as NDZs 
if the State determines that the protection and enhancement of the 
quality of the waters require greater environmental protection than 
provided by current Federal standards. However, no such prohibition 
applies to discharges until EPA determines that adequate facilities for 
the safe and sanitary removal and treatment of sewage from all vessels 
are reasonably available for the waters in the NDZ. Second, a State may 
apply under section 312(f)(4)(A) for EPA's determination that the 
protection and enhancement of the quality of specified waters within 
such State requires a prohibition. In contrast to section 312(f)(3) NDZ 
designations, section 312(f)(4) does not require EPA to determine that 
adequate pump out facilities are reasonably available for all vessels. 
Upon this determination, EPA shall by regulation completely prohibit 
the discharge from a vessel of any sewage (whether treated or not) into 
such waters. Lastly, a State may apply under section 312(f)(4)(B) for 
EPA to establish, by regulation, a drinking water intake zone which 
prohibits the discharge of sewage into that zone. [33 U.S.C. 1322(f), 
40 CFR 140.4] California applied to EPA to establish the proposed NDZ 
under CWA section 312(f)(4)(A).
    While section 312(f)(3) has been used to prohibit discharges in an 
entire State's waters, today's NDZ, if finalized, would be the first 
CWA section 312(f)(4)(A) NDZ to cover an entire State's waters. It 
would also be the first NDZ to only apply to discrete classes of 
vessels. Today's proposed rule would apply to all California marine 
waters and to two specific types of vessels--(1) passenger vessels of 
300 gross tons or more having berths or overnight accommodations, and 
(2) oceangoing vessels of 300 gross tons or more with two days or more 
of sewage holding capacity. As discussed in Sections V and VI of the 
preamble, the proposed NDZ will not alter existing NDZs in California, 
all of which were enacted pursuant to 312(f)(3). Those NDZs remain in 
effect for all vessels. These NDZs cover a relatively small portion of 
California's marine waters, although as discussed below, certain 
discharges of sewage are also prohibited under NOAA regulations for 
marine sanctuaries in California waters.

II. Enforcement

    The U.S. Coast Guard and the States are authorized to enforce the 
requirements of Section 312. 33 U.S.C. 1322(k). Persons who tamper with 
an installed certified MSD, or who operate vessels subject to section 
312 without operable MSDs, are subject to civil penalties of up to 
$5,000 and $2,000, respectively, for each violation; manufacturers who 
sell a non-certified MSD, or who sell a vessel subject to section 312 
that is not equipped with a certified MSD, are subject to civil 
penalties of up to $5,000 for each violation. 33 U.S.C. 1322(j). For 
more information see 33 U.S.C. 1322(j) and the U.S. Coast Guard's 
regulations at 33 CFR part 159.\8\
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    \8\ U.S. Coast Guard MSD Requirements: http://www.uscg.mil/hq/cg5/cg5213/msd.asp.
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III. The State's Application for This NDZ

    The State of California declared the importance of protecting and 
enhancing coastal water quality when it enacted legislation in 2003-
2004 to limit pollution from large passenger vessels Assembly Bill (AB) 
121, AB 906, AB 2093, and AB 2672 (available in the docket for today's 
proposal). The new legislation required a number of actions to address 
and reduce sewage and other pollution discharges from large vessels. 
Specifically, AB 2672 required the State Water Resources Control Board 
(State Board) to submit an application to the EPA seeking Federal 
prohibition of discharges of sewage from large passenger vessels to 
State waters.\9\ Similarly, the State enacted the California Clean 
Coast Act of 2005 (Senate Bill (SB) 771) to address and reduce sewage 
and other pollution discharges from large oceangoing vessels with 
sufficient holding tank capacity. SB 771 directed the State Board to 
submit an application to the EPA seeking prohibition of sewage 
discharges from large oceangoing vessels with ``sufficient holding tank 
capacity'' to contain sewage while the vessels are within the marine 
waters of the State. In enacting this legislation, the State found that 
California's coastal waters warrant a higher level of protection and 
determined that protection and enhancement of coastal water quality 
requires a reduction in vessel sewage discharges to the State's coastal 
waters. The legislation also provided that ``[i]t is not the 
Legislature's intent to establish for the marine waters of the State a 
no discharge zone for sewage from all vessels, but only for a class of 
vessels.'' \10\
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    \9\ California State Assembly Bill 2672, Section 1(c).
    \10\ California Senate Bill 771, Chapter 588, Section 21.
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    The information submitted by the State in its application for this 
NDZ (available in the docket for today's proposal) documents the 
importance of California's marine waters, the sensitivity of all of 
California's marine waters to sewage discharges, and the need for the 
proposed NDZ to protect and enhance those waters.

IV. Who is affected by this rule?

    The proposed rule would completely prohibit the discharge of sewage 
(whether treated or not) from all large passenger vessels, as defined 
by 46 U.S.C. 2101(22), of 300 gross tons or more and which have berths 
or overnight accommodations, and private, commercial, government, and 
military oceangoing vessels of 300 gross tons or more. The State's 
definition of large passenger vessels in AB 2672 excluded all 
noncommercial, government and military vessels, treating them as 
``oceangoing ships.'' For this proposed rule EPA uses the generally 
applicable definition of ``passenger vessel'' from Title 46 of the US 
Code, but, like the State, applies the rule only to passenger vessels 
of 300 gross tons or more and which have berths or overnight 
accommodations. A large oceangoing vessel means a private, commercial, 
government, or military vessel of 300 gross tons or more.
    Certain Department of Defense (DoD) vessels and activities may be 
exempt from these requirements. Pursuant to CWA Section 312(d), the 
Secretary of

[[Page 53917]]

Defense promulgated DoD 4715.06-R1 ``Regulations on Vessels Owned or 
Operated by the Department of Defense'' (January 2005), which explains 
the circumstances under which DoD may exempt its vessels from the 
sewage discharge requirements of Section 312, including NDZs, because 
compliance would excessively and unreasonably detract from the vessel's 
military characteristics, effectiveness, or safety, and not be in the 
interest of national security. Exempted vessels are nonetheless 
required to limit sewage discharges into U.S. navigable waters, 
territorial seas, and NDZs to the maximum extent practicable without 
endangering the health, safety, or welfare of the crew or other 
personnel aboard.
    The State legislation limits the prohibition on discharges of 
sewage to large oceangoing vessels with ``sufficient holding tank 
capacity.'' SB 771 defined ``sufficient holding tank capacity'' to mean 
a holding tank of sufficient capacity to contain sewage while the 
oceangoing ship is within the marine waters of the State.\11\ For the 
purposes of this proposed rule, ``sufficient holding tank capacity'' 
means two days or more of sewage holding capacity based on the ability 
to hold at least two day's sewage while in State marine waters. A 
suitable holding tank is a tank that was designed, constructed, and 
certified by the ship's flag administration to hold sewage. Two days of 
sewage holding capacity is consistent with California State Lands 
Commission 2006 Vessel Survey Data, required under SB 771, that showed 
oceangoing vessel port calls averaged two days in duration.\12\ The two 
day duration was established based on this data and through 
consultation with the State. For purposes of this proposed rule, the 
two-day holding tank capacity would be determined by multiplying the 
crew capacity of a vessel by the average sewage generation rate of 8.4 
gallons of sewage per day, per person.\13\ Oceangoing vessel capacity 
is determined by: (1) A certificate of inspection issued by the US 
Coast Guard for US flagged vessels; or (2) a MARPOL Annex 4 certificate 
issued by the signatory State for foreign flagged vessels. For either 
certificate, the maximum number of passengers and crew is identified 
for the vessel.
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    \11\ California Senate Bill 771, Chapter 588, Section 6 
(72401(a)).
    \12\ California State Lands Commission 2006 Vessel Survey.
    \13\ EPA's December 29, 2008 Cruise Ship Discharge Assessment 
Report found that average reported sewage generation rates were 8.4 
gallons/day/person.
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V. EPA's Determination That the Protection and Enhancement of the 
Quality of California Coastal Waters Requires This NDZ

    Importance of California Waters: California's coastal waters 
contain a wide variety of unique, nationally important marine 
environments that support rich biological communities and a wide range 
of recreational, commercial, conservation, research, educational, and 
aesthetic values. Coastal areas contain the greatest variety of 
habitats in California, including tidepools, estuaries, embayments, 
headlands, sandy beaches, mudflats, tidal wetlands, eelgrass beds, kelp 
forests, and deep ocean floor. California's highly varied marine 
environments support high levels of biological diversity and habitat 
for several dozen species listed as endangered, threatened, or of 
concern under Federal or State law, including 10 species of marine 
mammals, 4 species of anadromous fish, and 9 species of sea birds. The 
State has also established essential habitat along much of the coast 
for nearly 100 species of fish.
    The unique values associated with California's coastal marine 
environment have been recognized through the creation of a network of 
more than 200 protected areas, reserves, sanctuaries, and monuments 
that together afford special resource protection status to the vast 
majority of California coastal waters. For example, the four Federally 
designated National Marine Sanctuaries (Cordell Bank, Gulf of the 
Farallones, Monterey Bay, and Channel Islands) in California occupy 
approximately one-third of the coastline and over 9,373 square miles of 
marine waters (1,726 within State waters) while the California Coastal 
National Monument protects more than 20,000 small islands, reefs, and 
pinnacles. The National Park Service manages 6 park facilities along 
the California coast including the Channel Islands and Redwood National 
Parks and Golden Gate National Recreation Area. Thirteen national 
wildlife refuges and 22 marine reserves have been established along the 
California coast, several of which cover substantial portions of marine 
embayments and estuarine areas. Three National Estuarine Research 
Reserves have been designated under the Coastal Zone Management Act as 
a partnership between the National Oceanic and Atmospheric 
Administration (NOAA) and the State, including San Francisco Bay; 
Elkhorn Slough; and Tijuana River. NOAA, has also established Essential 
Fish Habitat for several species along the entire California coast. The 
State has designated more than 80 Marine Protected Areas, 34 Areas of 
Special Biological Significance--Water Quality Protection Areas, 14 
Ecological Reserves, 17 State and University of California Reserves, 20 
Marine Refuges, and 14 Underwater Parks and Preserves intended to 
preserve and enhance living marine resources, cultural and historical 
resources, and recreational and research opportunities. The State, 
pursuant to CWA 312(f)(3), previously established ten individual NDZs 
along the California coast. These NDZs were established after EPA made 
the necessary finding that adequate pump out facilities are reasonably 
available in the areas of the NDZs.
    Following establishment of the four federally recognized National 
Marine Sanctuaries along the California Coast, NOAA promulgated 
regulatory revisions to better address their concerns with potential 
impacts from vessel discharges by prohibiting discharges of treated and 
untreated sewage from cruise ships, and from large vessels with 
sufficient holding tank capacity to hold sewage while within the 
Sanctuaries.\14\ NOAA Stated that both treated and untreated vessel 
sewage are more concentrated than domestic land-based sewage and may 
introduce disease causing microorganisms into the marine environment 
and increase nutrients that can lead to eutrophication and oxygen-
depleted ``dead zones.'' As shown in Table 1, the four National Marine 
Sanctuaries combined with the ten existing NDZs account for over 33 
percent of State marine waters (38 percent including proposed 
expansions at the Gulf of the Farallones and Cordell Bank). These 
protected areas account for approximately 51 percent of the 1,624 mile 
California coastline. The proposed NDZ would apply to all State marine 
waters and would increase protections by prohibiting treated sewage 
discharges from the regulated classes of vessels in the remaining 67 
percent of State marine waters. A map illustrating these areas can be 
obtained or viewed at the EPA's Web site at ``http://www.epa.gov/region9/water/no-discharge/overview.html, '' or by calling (415) 972-
3476.
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    \14\ Department of Commerce, NOAA, Federal Register/Vol. 73, No. 
225 Published November 20, 2008/15 CFR part 922 and Federal 
Register/Vol. 74, No. 11/Friday, January 16, 2009/Rules and 
Regulations.

[[Page 53918]]

                    Table 1--Status of California Marine Waters and Treated Sewage Protection
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                                                                  Area of
                                                                 California       Percent of          Sewage
              California marine protected area                 marine waters      California        discharges
                                                                (miles \2\)      marine waters      prohibited
----------------------------------------------------------------------------------------------------------------
National Marine Sanctuaries*................................          **1,726             33.05              Yes
Existing NDZs***............................................               29              0.5               Yes
Proposed NDZ................................................            5,222            100            Proposed
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*Office of NMS--NOAA, 2009.
**Area of existing NMS off California's coast and occurring outside State marine waters equals 7,647 square
  miles.
***EPA Region 9 GIS Center, September 2006.

    Waters along the California coastline (including islands) support 
equally important economic, recreational, and aesthetic values. Many of 
these values are heavily dependent upon clean water. California's ocean 
economy is the largest in the nation and in 2000 alone, directly 
provided approximately 408,000 jobs and contributed $42.9 billion to 
gross State product. Seventy-seven percent of the State's population 
lives on or near the coast and annually, over 150 million visitor-days 
are spent at California beaches. California ranks first in the nation 
as a travel destination and its beaches are the leading destination for 
tourists. Coastal tourism and recreation generate more than $10 billion 
per year in wages and more than $20 billion per year in gross State 
product. In 2000, California's commercial marine fishing industry 
generated more than $400 million.\15\
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    \15\ California's Ocean Economy, Report to the Resources Agency, 
State of California, The National Ocean Economics Program, 2005.
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    California coastal waters are home to more than 889 water contact 
recreational facilities including 450 public beaches, of which 63 are 
units of the State Parks system. As noted above, over one third (138 
out of 424) of beaches monitored in California in 2007 reported at 
least one water quality advisory due to water quality standard 
exceedances, and 104 incidents in 2005 resulted in 486 closure days at 
California beaches because of elevated bacteria levels.
    The shellfish industry in California is vulnerable to water quality 
impacts from pathogens from a variety of sources including vessel 
discharges. For example, in 2007, the State adopted a TMDL (total 
maximum daily load) for pathogens to protect recreational uses and 
shellfish harvesting in Tomales Bay, north of San Francisco, where 
leases exist for nearly half of the State's shellfish growers and 
production of almost 20 percent of the State's oysters.\16,\ \17\
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    \16\ West Marin Chamber of Commerce.
    \17\ The Tomales Bay Watershed Stewardship Plan: A Framework for 
Action. Tomales Bay Watershed Council, July 2003. 137 pp.
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    Coastal waters are increasingly more important for potable water 
supply as desalination measures are used to meet demands. There are 
more than 40 desalination plants in various stages of planning and 
operation in California.\18\ Given that net potable water demand 
exceeds supply in many years, it is anticipated that desalination will 
increase as a means to meet California's projected population 
growth.\19\ CWA Section 312(f)(4)(B) recognized the importance of 
prohibiting vessel sewage near drinking water intakes by authorizing 
States to apply to the EPA Administrator for establishment of NDZs at 
intake zones.
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    \18\ June 2007 Pacific Institute Desalination Report.
    \19\ April 5, 2006 State Application.
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    Pollutants Affecting California Marine Waters: These aquatic 
resource uses and values are threatened and impaired by pollutant 
discharges to most California coastal waters from a variety of land and 
marine activities. In addition to marine vessel discharges, other 
important pollutant sources include land-based wastewater treatment 
plant ocean outfalls, stormwater discharges, rivers and streams, 
thermal discharges from power plants, dredging and dredged material 
disposal operations, wind transport, and construction activities. 
Pollutants causing water quality impairment include chemicals, metals, 
nutrients, pathogens, sediments, and heat. Table 2 shows the current 
status of impaired water body segments along the California coast. In 
California coastal waters, 222 beach and water body segments have been 
designated as impaired under Section 303(d) of the CWA. Among the 222 
segments, 592 pollutant-impairments that have been identified as 
exceeding State water quality standards still require a TMDL limit. 
TMDLs for an additional seventy-nine impairments have already been 
approved by EPA.\20\ Information on impaired waters in California can 
be found at EPA's National Summary of Impaired Waters and TMDLs Web 
site at ``http://www.epa.gov/owow/tmdl/'', or by calling (415) 972-
3476.
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    \20\ 2006 CWA 303(d) List.
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    Of the 671 impairments, at least 162 are for pollutants commonly 
associated with sewage, including nutrients, fecal coliform, and 
pathogens. Pathogens alone account for approximately 120 miles of 
impaired coast line in the State.

   Table 2--California Marine Impaired Water Body Segments and TMDLs*
------------------------------------------------------------------------
                                         Impairments
  Impaired water    Total pollutant    associated with   Approved  TMDL
  body  segments      impairments          sewage
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            222                671                162                79
------------------------------------------------------------------------
*2006 CWA 303(d) list.

    Large Passenger Vessel Sewage Generation and Pollutants: Large 
passenger vessels continue to increase in size and can now accommodate 
as many as 6,300 passengers and 2,400 crew members.\21\ Because these 
vessels generate large volumes of sewage, the State has requested that 
all large passenger vessels of 300 gross tons or

[[Page 53919]]

greater, regardless of sewage holding capacity, be subject to the 
proposed rule. As mandated by SB 771, in 2006 the California State 
Lands Commission conducted a survey (2006 Vessel Survey) of large 
passenger and large oceangoing vessels calling on California ports in 
order to better understand vessel sewage generation and discharges.\22\ 
Based on the 33 large passenger vessels reporting, an average sized 
passenger vessel holds nearly 2,900 passengers and crew (2,154 and 709 
respectively). At a daily per person sewage generation rate of 8.4 
gallons, an average sized large passenger vessel is capable of 
generating as much as 24,360 gallons of sewage per day.\23\
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    \21\ Royal Caribbean Press Release--Fast Facts Oasis of the 
Seas/Allure of the Seas-http://www.oasisoftheseas.com/press-materials.php.
    \22\ California State Lands Commission 2006 Vessel Survey data 
was dictated under SB 771.
    \23\ California State Lands Commission 2006 Vessel Survey 
reported 33 large passenger vessels making port calls in California 
with an average 709 crew and 2,154 passengers for an average of 
2,864 people on board.
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    In 2008, 48 large passenger vessels made 788 calls to California 
ports and spent an average of one day in port per arrival.\24\ As 
illustrated in Table 3, at an estimated 24,360 gallons per day and an 
average stay of one day, these vessels could potentially generate 19.2 
million gallons of treated sewage annually while in State marine 
waters. EPA has no way of verifying how much treated large passenger 
vessel sewage is actually discharged in State marine waters; this 
depends on actual numbers of passengers and crew and how much treated 
sewage is discharged to treatment facilities on land and/or held for 
discharge outside State waters. However, it is likely that a 
significant portion of this estimated 19.2 million gallons is in fact 
currently being discharged in State waters. The intent of this proposed 
rule is to prohibit all sewage generated from large passenger vessels 
from entering State marine waters.
---------------------------------------------------------------------------

    \24\ Number and frequency of port calls for large passenger 
vessels based on the January 27, 2009 State Application Addendum.

                         Table 3--California Large Passenger Vessel (LPV) Data for 2008
----------------------------------------------------------------------------------------------------------------
                                                                                               Estimated treated
                                                                             Estimated sewage     vessel sewage
      LPVs*           Passengers &       Port calls*        Average port     generation  (g/    generated while
                         crew**                                days**            day)***        in State waters
                                                                                                  (g/year)***
----------------------------------------------------------------------------------------------------------------
            48              2,900                788                  1             24,360         19,195,680
----------------------------------------------------------------------------------------------------------------
* State's January 27, 2009 Application Addendum.
** State Lands Commission 2006 Vessel Survey Data.
*** EPA calculations.

    Treated sewage discharges from vessels generally contain higher 
concentrations of pollutants than discharges of treated sewage from 
land-based wastewater treatment plants and can cause or contribute to 
water quality impairments and impacts to highly sensitive marine 
habitats. This can be attributed to lower dilution rates for large 
passenger vessel sewage discharges, especially in cases where these 
vessels employ vacuum flushing and conveyance to reduce water use.
    Based on data collected in 2000 for the Alaska Cruise Ship 
Initiative (21 vessels), the average fecal coliform concentrations in 
traditional Type II MSD effluent was 2.04 million MPN (most probable 
number)/100 mL.\25\ As shown in Table 4, of the 92 samples collected, 
51 exceeded EPA's performance standard for Type II effluent fecal 
coliform count of 200 MPN/100 ml. Of the 92 samples collected, 35 
exceeded 100,000 MPN/100 mL and 22 exceeded 1 million MPN/100 mL. The 
range of fecal coliform concentrations ranged between 100 mL and 
24 million MPN/100 mL. Based on these results, the average 
concentration was as much as 20 times greater than un-treated municipal 
wastewater (ranges from 10,000 to 100,000 MPN/100 mL) \26\ and over 
10,000 times greater than the Federal MSD fecal coliform standard of 
100 mL.
---------------------------------------------------------------------------

    \25\ 2000 Alaska Cruise Ship Initiative, reported in 2008 EPA 
Cruise Ship Discharge Assessment Report. Two of the 21 vessels 
sampled were using reverse osmosis treatment systems.
    \26\ 2003 Metcalf & Eddy Wastewater Engineering.
---------------------------------------------------------------------------

    EPA's 2008 Cruise Ship Discharge Assessment Report found that Type 
II MSD effluent concentrations of fecal coliform also could lead to 
exceedences of EPA's 2006 National Recommended Water Quality Criteria 
(NRWQC) established for shellfish harvesting waters. This bacteria 
standard States that median fecal coliform concentrations should not 
exceed 14 MPN/100 mL, with not more than 10 percent of samples 
exceeding 43 MPN/100 mL. EPA notes that these are ambient water quality 
criteria not discharge standards, and that depending on the amount of 
mixing, discharges exceeding the numeric level of the criterion at the 
point of discharge would not necessarily lead to an exceedence of the 
NRWQC. However, given the levels of fecal coliform in some of the 
samples discussed above, sewage discharges from cruise ships could be 
causing or contributing to violations of these NRWQC as well as State 
water quality criteria. For example, California has adopted the NRWQC 
for fecal coliform for shellfish in some coastal waters and for all 
coastal waters has adopted criteria for contact recreation not to 
exceed 200 MPN/100 mL with not more than 10 percent of samples 
exceeding 400 MPN/100 mL.
    For suspended solids, values detected in effluent from Type II MSDs 
were substantially higher than levels that would generally be 
considered to comply with narrative NRWQC land-based discharge 
standards. Data for residual chlorine concentrations from Type II MSDs 
and advanced wastewater treatment systems (AWTs) also exceeded levels 
that would violate NWRQC standards if found in the ambient water. Site-
specific evaluations would be needed to determine whether these vessel 
discharges would cause, have the potential to cause, or contribute to 
non-attainment of water quality standards.\27\
---------------------------------------------------------------------------

    \27\ 2000 Alaska Cruise Ship Initiative, reported in 2008 EPA 
Cruise Ship Discharge Assessment Report.

[[Page 53920]]

    Table 4--Fecal Coliform Concentrations in Large Passenger Vessel
                                Effluent*
------------------------------------------------------------------------
                Federal type
  Number of        II MSD      Samples >200     Samples        Samples
   samples     standard (MPN/   MPN/100 ml   >100,000 MPN/   >1,000,000
                  100 ml)                        100 ml      MPN/100 ml
------------------------------------------------------------------------
          92           http://www.travelpulse.com/Resources/
Editorial.aspx?n=66206.
    \32\ GlobalSecurity.org: http://www.globalsecurity.org/military/systems/ship/passenger-cruise.htm.
---------------------------------------------------------------------------

    Vessel Sewage Generated from Large Oceangoing Vessels with two days 
or more sewage holding capacity: Table 5 provides data used to 
determine sewage discharges from large oceangoing vessels with two days 
or more sewage holding capacity. Based on 2006 Vessel Survey data, 
approximately 35 percent of the 1,384 vessels reporting had two days or 
more of sewage holding capacity.\33\ This represents the approximate 
percentage of large oceangoing vessels that would likely be subject to 
the proposed rule. According to the State's application, in 2008, 1,753 
large oceangoing vessels made 9,620 port calls to California. Based on 
the 2006 survey, 35 percent of those port calls (3,367 port calls) 
would have been made by vessels that are subject to the proposed 
rule.34, 35 Larger oceangoing vessels typically carry 15 to 
25 crew members. The average, based on the 2006 Vessel Survey, was 21 
crew members. The average port stay was two days. At an average rate of 
8.4 g/person/day, an oceangoing vessel with an average sized crew would 
generate approximately 176 gallons of sewage per day. EPA multiplied 
the 176 g/day average sewage generation rate, with the estimated 3,367 
annual port calls, and the average two-day port visit, to estimate that 
large oceangoing vessels calling on California ports generate almost 
1.2 million gallons of sewage per year. As with large passenger 
vessels, EPA does not have data for determining how much of this sewage 
is discharged in State marine waters, however it is likely to be a 
significant portion. Unlike large passenger vessels, EPA does not have 
treated sewage sampling data for large oceangoing vessels, but lacking 
any data that would demonstrate otherwise, we assume that sewage from 
large oceangoing vessels has similar pollutant concentrations as large 
passenger vessels. The intent of the proposed rule is to prohibit all 
treated sewage from large oceangoing vessels with adequate holding 
capacity from being discharged to State marine waters.
---------------------------------------------------------------------------

    \33\ According to the California State Lands Commission 2006 
Vessel Survey, 35 percent of vessels had sewage capacity of two days 
or more. This was extrapolated to estimate sewage capacity of 
vessels calling in 2008 as reported in the State's January 27, 2009 
Application Addendum.
    \34\ California State Lands Commission 2006 Vessel Survey.
    \35\ January 27, 2009 State Application Addendum.

                            Table 5--California Oceangoing Vessel (LOV) Data for 2008
----------------------------------------------------------------------------------------------------------------
                                   Port calls by                                                      Sewage
                                     LOVs with                                                       Generated
     LOVs*         Port calls*      sufficient        Crew**       Average port     Sewage (g/    while in State
                                   holding tank                       days**          day)***       waters  (g/
                                    capacity***                                                      year)***
----------------------------------------------------------------------------------------------------------------
        1,753            9,620           3,367              21               2             176       1,185,184
----------------------------------------------------------------------------------------------------------------
* State's January 27, 2009 Application Addendum.
** State Lands Commission 2006 Vessel Survey Data.

[[Page 53921]]

*** EPA calculations.

    Oceangoing vessel traffic is projected to increase significantly in 
California marine waters. San Pedro Bay Ports in Los Angeles and Long 
Beach comprise the highest volume port complex in the nation and 
project a 44 percent increase in the volume of container throughput 
between 2010 and 2020.\36\ Vessel container capacity will increase with 
larger ships, but port calls are still projected to increase from 
nearly 3,600 in 2007 to as many as 5,600 in 2020.\37\ The Port of 
Oakland, the second highest volume port in the State and fourth in the 
nation, hosted nearly 2,000 container ship calls in 2008 and is 
forecast to increase cargo throughput approximately 5 percent each year 
between now and 2017.\38\ This increase in vessel traffic will result 
in increased generation of treated vessel sewage that could potentially 
be discharged to State marine waters.
---------------------------------------------------------------------------

    \36\ San Pedro Bay Ports Long-Term Cargo Forecast, Mercer 
Management Consulting, 2001.
    \37\ Container Vessel Forecast for San Pedro Bay Ports, Mercator 
Transport Group, 2000.
    \38\ Port of Oakland Website: http://www.portofoakland.com.
---------------------------------------------------------------------------

    Vessels Not Covered by the NDZ: As described in Section IV of this 
proposed rule, the State's application requested that the discharge 
prohibitions be limited to a certain class of vessels. Vessels not 
covered by the proposed rule include oceangoing vessels with less than 
two days of sewage holding capacity, and vessels less than 300 gross 
tons. Based on the State's 2006 Vessel Survey data and the number of 
vessels calling to California ports in 2008, approximately 65 percent 
(1,139) of the oceangoing vessels had less than two days of holding 
capacity and would not be subject to the rule as proposed.\39\ 
Multiplying the estimated 176 g/day average sewage generation rate, 
with the estimated 6,253 annual port calls, and the average two-day 
port visit, EPA estimates that large oceangoing vessels without 
adequate holding capacity generate approximately 2.2 million gallons of 
sewage per year. The EPA and the State are aware that smaller vessels, 
including recreational and smaller commercial vessels, also discharge 
sewage to the State's coastal water. In deciding to request designation 
of an NDZ applicable only to larger vessels as specified above, but 
applicable to the entire California coast, the State legislature 
determined that prohibiting discharge from the largest vessels would 
provide a relatively efficient approach to reducing the vessel sewage 
waste stream along the entire coast because these vessels generate a 
significant amount of sewage compared to smaller vessels. Vessels 
equipped with installed toilets are currently prohibited from 
discharging untreated sewage in any navigable waters within 3 miles 
from shore. Based on State estimates for 2006, approximately 80 percent 
of the 841,000 recreational vessels in California did not have Type I 
(flow through treatment device for vessels 65 feet or less) or Type II 
MSDs and therefore would be prohibited from discharging sewage to State 
marine waters.\40\ The remaining 20 percent (168,200) can discharge 
treated sewage from their MSDs to State waters. Applying the State's 
data for small vessel usage, two persons per vessel, an average of one 
full ``recreation day'' (four 6-hour trips per year), and an 8.4 
gallons of sewage per person per day, the total amount of treated 
sewage potentially discharged from recreational vessels to State marine 
waters in one year could amount to approximately 2.8 million gallons, 
if all discharges were within State waters.\41\
---------------------------------------------------------------------------

    \39\ California State Lands Commission 2006 Vessel Survey.
    \40\ January 27, 2009 State Application Addendum.
    \41\ January 27, 2009 State Application Addendum.
---------------------------------------------------------------------------

    In addition to current MSD requirements, the ten NDZs previously 
approved along the California coast address small vessel pollution in 
high density recreational boating areas.\42\ Instead of seeking an NDZ 
applicable to all vessels, the State legislation enacted companion 
provisions designed to improve sewage pump out capacity and utilization 
rates for vessel pump out facilities by recreational and small 
commercial vessels as alternative approaches to reducing sewage 
discharges from smaller vessels.
---------------------------------------------------------------------------

    \42\ USEPA No Discharge Zones for Vessel Sewage: HTTP://www.epa.gov/region09/water/no-discharge/index.html.
---------------------------------------------------------------------------

VI. Effect on Current Vessel Sewage Controls

    Today's proposed rule does not alter existing vessel sewage 
discharge prohibitions in California waters. All existing NDZs in 
California remain in effect for all vessels operating in those waters.
    The proposed rule complements the discharge prohibitions recently 
passed by NOAA for all four of California's NMSs. Those discharge 
prohibitions were adopted pursuant to California's application to NOAA 
and became effective March 9, 2009 for the Gulf of the Farallones, 
Monterey Bay, and Cordell Bank National Marine Sanctuaries (74 FR 12088 
(Mar. 23, 2009)) and March 19, 2009 for the Channel Islands National 
Marine Sanctuary (74 FR 12087 (Mar. 23, 2009)). The new Sanctuary 
management plans prohibit ``discharges/deposits of treated and 
untreated sewage from vessels 300 gross registered tons or more, except 
oceangoing ships without sufficient holding tank capacity to hold 
sewage and graywater, respectively, while within the Sanctuary. Large 
passenger vessels are not provided an exception and, therefore, are 
prohibited from discharging/depositing treated or untreated sewage and 
graywater in the Sanctuary.'' See Gulf of the Farallones National 
Marine Sanctuary Regulations; Monterey Bay National Marine Sanctuary 
Regulations; and Cordell Bank National Marine Sanctuary Regulations; 
Final Rule, 73 FR 70488 (Nov. 20, 2008) and Channel Islands National 
Marine Sanctuary Regulations; Final Rule, 74 FR 3216 (Jan. 16, 2009). 
Like the Sanctuary prohibitions, today's proposed rule would not 
require oceangoing vessels without sufficient holding tank capacity, as 
defined, to hold treated vessel sewage while within State marine 
waters.
    The four California National Marine Sanctuaries cover over 33 
percent of all California marine waters (nearly 38 percent with 
proposed Cordell bank and Gulf of the Farallones expansions). This 
proposal would cover all California waters. The discharge prohibitions 
in California's National Marine Sanctuaries cover a total of 1,726 
square miles of ocean (and would be expanded by almost 232 square miles 
with the proposed expansions) in addition to nearly 30 square miles of 
existing NDZs. In total, sewage discharges are currently prohibited 
within 1,755 square miles of the 5,222 square miles of California 
marine waters. Today's prohibition would apply to the entire 5,222 
square miles.
    Other Existing Vessel Pollutant Controls: Following several 
confirmed sewage discharge violations, the Cruise Lines International 
Association (CLIA), representing the 25 major cruise lines serving 
North America, adopted voluntary industry standards to address cruise 
industry waste management. Under the CLIA 2006 ``Cruise Industry Waste 
Management Practices and Procedures'', Association members have agreed 
to comply with requirements to process all sewage through an MSD 
certified in accordance with U.S. or international regulations prior to 
discharge. For ships that do not have

[[Page 53922]]

AWTs traveling regularly on itineraries beyond territorial coastal 
waters, (CLIA) standards provide that discharge will take place only 
when the ship is more than four miles from shore and when the ship is 
traveling at a speed of not less than six knots (for vessels operating 
under sail, or a combination of sail and motor propulsion, the speed 
shall not be less than four knots). For vessels whose itineraries are 
fully within U.S. territorial waters, CLIA standards provide that 
discharge shall comply fully with U.S. and individual State legislation 
and regulations.
    To EPA's knowledge, CLIA voluntary measures are not monitored or 
reported and the degree of compliance with these voluntary measures is 
unknown. The State of California states that existing MSD requirements 
and voluntary discharge limitations are not fully effective.\43\ While 
the number of vessels actually discharging partially or untreated 
sewage in State marine waters can only be estimated, the Government 
Accountability Office 2000 report to Congress \44\ and the State 
confirm discharges of untreated sewage from large passenger vessels and 
other oceangoing vessels in State marine waters.
---------------------------------------------------------------------------

    \43\ April 5, 2006 State Application.
    \44\ Marine Pollution, Progress Made to Reduce Marine Pollution 
by Cruise Ships but Important Issues Remain, GAO 2000.
---------------------------------------------------------------------------

    A majority of large oceangoing vessels operating in U.S. waters are 
registered in foreign countries and subject to the ``International 
Convention for the Prevention of Pollution from Ships, 1973 as modified 
by the Protocol of 1978 relating thereto'' (``MARPOL''). The principal 
international instrument regulating discharges of sewage from vessels 
is Annex IV to MARPOL. While the United States is not a Party to MARPOL 
Annex IV, and thus is not bound by its provisions, a vessel flying the 
flag of a country who is a Party to Annex IV remains subject to the 
Annex's requirements (as implemented and enforced by the flag State) no 
matter where the vessel sails, including when the vessel is operating 
in U.S. waters.
    Annex IV applies to subject vessels engaged in international 
voyages of 400 gross tonnage and above, and to subject vessels of less 
than 400 gross tonnage which are certified to carry more than 15 
persons (passengers and crew). The Annex contains, among other 
requirements, limits on the discharge of sewage into the sea, and 
provisions for the survey and certification of a vessel's sewage 
treatment device. In particular, Annex IV prohibits the discharge of 
sewage into the sea except when:
    The vessel is discharging comminuted and disinfected sewage from an 
approved system at a distance of more than three miles (nm) from the 
nearest land; or
    The vessel is discharging sewage which is not comminuted or 
disinfected (i.e., untreated sewage), at a distance of more than 12 nm 
from the nearest land, provided that sewage that has been stored in 
holding tanks, or sewage originating from spaces containing living 
animals, is not discharged instantaneously but at a moderate rate when 
the ship is en route and proceeding at a speed of at least four knots; 
or
    The vessel is using a type-approved sewage treatment plant (STP) 
that has been certified to meet the applicable International Maritime 
Organization's recommendations and regulations, the test results are 
laid down in the ship's International Sewage Pollution Prevention 
Certificate, and the effluent does not produce visible floating solids 
or cause discoloration of the surrounding water.

VII. Conclusion

    EPA has reviewed the State's application for the establishment of 
an NDZ, and other information summarized above, and has determined that 
an NDZ is required to protect and enhance the quality of these waters. 
As shown in Table 6, by prohibiting large passenger vessels and large 
oceangoing vessels with two days or more of sewage holding tank 
capacity from discharging sewage in State marine waters, a significant 
pollutant waste stream of up to 20.4 million gallons of treated sewage 
per year would be prohibited from waters that support a variety of 
unique, nationally important and biologically significant environments 
that contribute to California's recreational, economic, and aesthetic 
values. As a result, improved water quality would likely benefit human 
health by reducing pollutant exposure from recreation and provide 
benefits to wildlife and their habitats, commercial fisheries and shell 
bed operations, and water intakes for desalination plants.

                      Table 6--California Vessel Sewage Contributions and NDZ Prohibitions
----------------------------------------------------------------------------------------------------------------
                                                       Treated vessel  sewage         Treated vessel  sewage
                   Sewage Source                        generation  in State       prohibited by  this proposed
                                                       waters  (gallons/year)          NDZ  (gallons/year)
----------------------------------------------------------------------------------------------------------------
Large Passenger Vessels............................  19.2 million..............  19.2 million.
Large Oceangoing Vessels (with two days or more      1.2 million...............  1.2 million.
 sewage holding capacity).
Combined Large Passenger and Large Oceangoing        20.4 million..............  20.4 million.
 Vessels.
Not addressed by this rule
    Large Oceangoing Vessels without holding         2.2 million...............  No Change.
     capacity.
    Recreational Vessels...........................  2.8 million...............  No Change.
    Combined Large Oceangoing Vessels without        5 million.................  No Change.
     holding capacity and Recreational Vessels \45\.
----------------------------------------------------------------------------------------------------------------
\45\ The proposed rule would not apply to non-recreational oceangoing vessels less than 300 gross tons in size.
  Insufficient data were available to estimate sewage generation from these smaller oceangoing vessels. Based on
  a review of available data describing the sizes of oceangoing vessels operating in US ports, it appears very
  few oceangoing vessels are less than 300 gross tons in size (see, e.g., Commercial Marine Activity for Deep
  Sea Ports in the United States, EPA420-R-99-020, September, 1999). Therefore, we do not expect that sewage
  discharges from oceangoing vessels less than 300 gross tons are significant in comparison with other types of
  oceangoing vessels.

    Section 312(f)(4)(A) states ``If the EPA Administrator determines 
upon application by a State that the protection and enhancement of the 
quality of specified waters within such State requires such a 
prohibition, he

[[Page 53923]]

shall, by regulation completely prohibit the discharge from a vessel of 
any sewage (whether treated or not) into such waters.'' This authority 
has been delegated to EPA Regional Administrators. On April 5, 2006, 
the California State Water Resources Control Board, pursuant to State 
statutory mandates, requested that EPA Region 9 establish an NDZ for 
all State waters along the California coast that applies to large 
passenger vessels of 300 gross tons or more, and oceangoing vessels of 
300 gross tons or more that have two days or more of sewage holding 
capacity. For the reasons discussed above, the EPA Region 9 
Administrator finds that the protection and enhancement of the quality 
of California's marine waters requires the requested NDZ.

VIII. Public Comment

    EPA invites public comment on all aspects of the proposed rule and 
will accept all comments for the next 60 days. Particular parts of the 
rule may benefit from attention and comment from reviewers with 
expertise and knowledge and opinions on the following subjects: EPA's 
conclusion that the protection and enhancement of California State 
marine waters require the requested prohibition on sewage discharges; 
EPA's prohibition of sewage discharges from specific classes of 
vessels; EPA's use of a two-day sewage holding capacity, and the 
generation rate of 8.4 gallons per day per person, as the basis for 
applying the proposed rule to large oceangoing vessels; the definitions 
used in the proposed rule, including the definition of ``large 
oceangoing vessel'' to include private, commercial, government or 
military vessels of 300 gross tons or more; EPA's economic analysis for 
vessel retrofit and operational costs; and whether vessels subject to 
the proposed rule are owned by companies that are ``small entities'' 
under the Regulatory Flexibility Act.

IX. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, Oct. 4, 1993), this 
action is a ``significant regulatory action.'' Accordingly, EPA 
submitted this action to the Office of Management and Budget (OMB) for 
review under EO 12866 and any changes made in response to OMB 
recommendations have been documented in the docket for this action.
    In addition, EPA prepared an analysis, summarized in Table 7, of 
the potential costs associated with this action to determine whether 
the rule would have an annual effect on the economy of $100 million or 
more, or adversely affect in a material way the economy or a sector of 
the economy.
    Vessels that are equipped with MSDs and that navigate throughout 
California State Waters are already subject to the EPA MSD Standard at 
40 CFR part 140 and the U.S. Coast Guard MSD Standard at 33 CFR part 
159. These standards prohibit the overboard discharge of untreated 
vessel sewage in State waters and require that vessels with installed 
toilets be equipped with U.S. Coast Guard certified MSDs which either 
retain sewage or treat sewage to the applicable standards. There are 
three types of MSDs, but only Type II and Type III MSDs apply to 
vessels affected by this rule.
    Vessels subject to this rule include large passenger vessels of 300 
gross tons or more and oceangoing vessels of 300 gross tons or more 
with two days or more sewage holding capacity. According to the State's 
2006 Vessel Survey data, approximately 35 percent of oceangoing vessels 
that made port calls in California had holding capacity for at least 
two days and, therefore, would be subject to the proposed rule. Based 
on an average two-day port call, EPA does not anticipate oceangoing 
vessels subject to the proposed rule would be required to employ 
operational or structural changes, such as making special trips beyond 
State marine waters to discharge, or increasing their holding capacity. 
If vessels subject to the proposed rule were to stay in State marine 
waters for a period of time beyond their sewage holding capacity 
operators may choose to make additional trips to discharge beyond State 
waters, and/or vessel owners may decide to retrofit their current 
holding tank capacities in order to comply with the rule.
    Although the proposed rule would not require vessel owners to 
retrofit any oceangoing vessels, EPA evaluated the potential costs of 
retrofitting holding tanks to increase capacity. Based on an industry 
estimate obtained by the EPA, the cost of holding tank retrofits could 
be approximately $100,000 each but would vary from vessel to 
vessel.\46\ EPA was unable to estimate an annual cost of retrofits for 
oceangoing vessels subject to the proposed rule. Data was not available 
for determining how many oceangoing vessel owners with vessels subject 
to the proposed rule might choose to implement retrofits.
---------------------------------------------------------------------------

    \46\ Estimate from third party industry group, 11/3/2009.
---------------------------------------------------------------------------

    According to responses to EPA's 2004 cruise ship survey, large 
passenger vessels operating in Alaska had an average of 62 hours of 
sewage holding capacity greatly exceeding average port stays of one day 
\47\ However, according to the State's 2006 Vessel Survey 40 percent of 
the large passenger vessels had less than one day holding capacity. As 
a result, some large passenger vessels may need to install sewage 
holding capacity retrofits to avoid discharging sewage in State marine 
waters. Based on 2008 vessel calls, if 40 percent, or 48, large 
passenger vessels chose to retrofit their vessels at a cost of $200,000 
per vessel, the resulting cost would be approximately $3.8 million.
---------------------------------------------------------------------------

    \47\ 2008 EPA Cruise Ship Discharge Assessment Report.
---------------------------------------------------------------------------

    As an alternative to expanding holding capacity, vessels that would 
be regulated by the proposed rule may choose to comply by traveling 
outside of State marine waters to discharge sewage. For large passenger 
vessels, EPA estimates the cost of each trip would be approximately 
$2,000. This estimate assumes the use of 800 gallons of diesel fuel at 
$2.50 per gallon to travel beyond 3 miles, discharge, and return to 
port at a cruising speed of 25 knots.\48\ Based on the 2008 data, if 
all 788 port calls required extra trips to discharge sewage outside 
State marine waters, the total fuel cost would be approximately $1.6 
million per year. This is likely a conservative estimate considering 
there are volunteer vessel speed reduction programs in place and under 
development along the California coast that provide incentives to 
vessel operators to reduce speeds within 20 nautical miles of the coast 
to reduce air pollutant emissions.\49\ Lower speeds could reduce fuel 
consumption costs by as much as 30 percent.\50\
---------------------------------------------------------------------------

    \48\ Cunard Queen Elizabeth 2 Technical Information estimated 
fuel consumption rate of 49.5 feet per gallon: http://www.cunard.com/uploads/QE2_Tech.pdf.
    \49\ Ports of Los Angeles and Long Beach Vessel Speed Reduction 
Program: http://www.portoflosangeles.org/environment/ogv.asp.
    Port of San Diego Voluntary Vessel Speed Reduction Program 
Showing Signs of Success: http://www.portofsandiego.org/environment/1728-voluntary-vessel-speed-reduction-program-showing-signs-of-success.html.
    \50\ New York Times, February 16, 2010, Slow Trip Across Sea 
Aids Profit and Environment: http://www.nytimes.com/2010/02/17/business/energy-environment/17speed.html.
---------------------------------------------------------------------------

    Vessels calling at ports within the San Francisco Bay, and Suisun 
Bay further inland, would have to travel beyond 3 miles to discharge 
beyond the NDZ limit. At most, a small percentage of oceangoing vessels 
calling at the Shell

[[Page 53924]]

Oil Terminal of Martinez and Port of Benicia would need to travel 
approximately 45 miles each way to go beyond the 3 mile NDZ limit and 
back. Vessels calling at the Ports of Oakland and Richmond would travel 
approximately 18 miles each way and for the Port of San Francisco, 9 
miles each way. Greater travel distances to discharge beyond the NDZ 
limit could incur increased costs for this small percentage of vessels.
    EPA was unable to estimate an annual cost of special trips for 
oceangoing vessels to discharge beyond State marine waters. Data was 
not available for determining how many oceangoing vessel owners with 
vessels subject to the proposed rule might choose to implement these 
operational changes.

        Table 7--Potential Industry Costs From the Proposed Rule
------------------------------------------------------------------------
                                                     Discharging outside
                                    Expansion of       of State marine
                                  holding tank\**\      waters \***\
------------------------------------------------------------------------
Large Oceangoing Vessels (with   $100,000/vessel..  $2,000/trip.
 two days or more sewage
 holding capacity)\*\.
Large Passenger Vessels........  $3.8 million.....  $1.6 million.
------------------------------------------------------------------------
\*\ Oceangoing vessels subject to proposed rule that would make
  operational or structural changes could not be determined.
\**\ One-time cost estimate.
\***\ Annual cost estimates.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b). Since today's rule would not 
establish or modify any information and record keeping requirements, it 
is not subject to the requirements of the Paperwork Reduction Act.

C. 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.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of this proposed regulation/
rule on small entities, EPA certifies that this action will not have a 
significant economic impact on a substantial number of small entities. 
The small entities subject to the requirements of this proposed rule 
fall under Deep Sea Freight Transportation (NAICS Code 483111) and Deep 
Sea Passenger Transportation (NAICS 483112) classifications.\51\ The US 
Small Business Administration size standard for these businesses is 500 
or fewer employees. To determine the size of companies that own large 
passenger and large oceangoing vessels that call at California ports, 
the EPA reviewed owner profiles for all large passenger vessels and 
several oceangoing vessels that responded to the 2006 vessel survey. 
Based on this review, it was determined that no large passenger and 
oceangoing vessels that call at California ports are owned by companies 
that employ 500 or fewer people.
---------------------------------------------------------------------------

    \51\ U.S. Small Business Administration Table of Small Business 
Size Standards, North American Industry Classification System 
(NAICS)), http://www.sba.gov/size).
---------------------------------------------------------------------------

    We continue to be interested in the potential impacts of the 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act

    This rule does not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate, or the private sector in any one year, 
as demonstrated above in section A, Executive Order 12866: Regulatory 
Planning and Review.
    Because the rule contains no regulatory requirements that might 
significantly or uniquely affect small governments, it is also not 
subject to the requirements of section 203 of the Act. Small 
governments are subject to the same requirements as other entities 
whose duties result from this rule and they have the same ability as 
other entities to retain and pump out treated sewage or discharge 
outside of the designated zones.

E. Executive Order 13132: Federalism

    This action does not have Federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. Section 312(f) of the CWA generally 
preempts State regulation of sewage discharges in State waters. An NDZ 
allows the State to seek protection of its State waters that it would 
otherwise be preempted from providing on its own. The State of 
California is requesting that EPA take action to designate all State 
waters as an NDZ under CWA Sec.  312(f)(4)(A). Therefore, Executive 
Order 13132 does not apply to this action.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed action 
from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have any known tribal implications, as 
specified in Executive Order 13175 (65 FR 67249, Nov. 9, 2000). The 
only expected impact on tribal rights or responsibilities is the 
improvement of ocean water quality. EPA has notified all California 
tribes with coastal reservations of this proposed action. EPA will 
consider any comments on this proposed action from tribal officials.

[[Page 53925]]

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks & Safety Risks

    The order applies to economically significant rules under E.O. 
12866 that concern an environmental health or safety risk that EPA has 
reason to believe may disproportionately affect children. This action 
is not subject to EO 13045 (62 FR 19885, April 23, 1997) because it is 
not economically significant as defined in EO 12866.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population. The proposed rule would further regulate and reduce 
pollutants from sewage in California marine waters thus reducing the 
risk of exposure to all populations, including those covered under this 
Executive order.

Lists of Subjects in 40 CFR Part 140

    Environmental protection, Sewage disposal, Vessels.

    Dated: August 25, 2010.
Jared Blumenfeld,
Regional Administrator, Region IX.

    In consideration of the foregoing, EPA is proposed to be amend part 
140, chapter 1 of title 40 of the Code of Federal Regulations as 
follows:

PART 140--[AMENDED]

    1. The authority citation for part 140 continues to read as 
follows:

    Authority:  33 U.S.C. 1322.

    2. Section 140.4 is amended by adding paragraph (b)(2)to read as 
follows:

Sec.  140.4  Complete prohibition.

* * * * *
    (b) * * *
    (2)(i) For the marine waters, of the State of California, including 
the territorial sea measured from the baseline as determined in 
accordance with the Convention on the Territorial Sea and the 
Contiguous Zone and extending seaward a distance of three miles, and 
also including all enclosed bays and estuaries subject to tidal 
influences from the Oregon border (41.999325 North Latitude, 124.212110 
West Longitude, decimal degrees, NAD 1983) to the Mexican border 
(32.471231 North Latitude, 117.137814 West Longitude, decimal degrees, 
NAD 1983), the discharge of sewage (whether treated or not) from large 
passenger vessels and from large oceangoing vessels that have two days 
or more holding capacity is completely prohibited pursuant to CWA 
section 312(f)(4)(A). A map illustrating these waters can be obtained 
from EPA or viewed at http://www.epa.gov/region9/water/no-discharge/overview.html.
    (ii) For purposes of paragraph (b)(2) of this section:
    (A) A ``large passenger vessel'' means a passenger vessel, as 
defined in section 2101(22) of title 46, United States Code, of 300 
gross tons or more, that has berths or overnight accommodations for 
passengers.
    (B) A ``large oceangoing vessel'' means a private, commercial, 
government, or military vessel of 300 gross tons or more.
    (C) Two days of holding capacity is the ability to hold in a 
holding tank of suitable design, construction and purpose, as 
determined by the vessel's flag Administration, at least two days of 
sewage per the vessel's crew capacity at a generation rate of 8.4 
gallons per day per person.
    (D) Oceangoing vessel crew capacity is determined by: a certificate 
of inspection issued by the US Coast Guard for US flagged vessels; or a 
MARPOL Annex 4 certificate issued by the signatory State for foreign 
flagged vessels. For either certificate, the maximum number of 
passengers and crew is identified for the vessel.
* * * * *
[FR Doc. 2010-21950 Filed 9-1-10; 8:45 am]
BILLING CODE 6560-50-P
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