```

[Federal Register: July 12, 2010 (Volume 75, Number 132)]
[Notices]               
[Page 39683-39691]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12jy10-41]                         

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2010-0126; FRL-9174-2]

 
Clean Water Act Section 312(b): Notice Seeking Stakeholder Input 
on Petition and Other Request To Revise the Performance Standards for 
Marine Sanitation Devices

AGENCY: Environmental Protection Agency.

ACTION: Notice of petition and other request for rulemaking; request 
for comments.

-----------------------------------------------------------------------

SUMMARY: This action notifies the public that the Environmental 
Protection Agency (EPA or ``the Agency'') has received a petition for 
rulemaking from Friends of the Earth (FOE) and another separate request 
for rulemaking under section 312 of the Clean Water Act (CWA). In 
general these rulemaking-related requests ask EPA to revise its 
regulations establishing performance standards for vessel sewage 
treatment devices under the CWA. The rulemaking petition from FOE also 
requests that EPA establish monitoring, recordkeeping and reporting 
requirements under the CWA to ensure compliance with the performance 
standards. EPA has not made a decision on whether to grant or deny the 
rulemaking requests, nor is the Agency proposing any changes to the 
performance standards or other provisions of its regulations at this 
time. Rather, the purpose of today's Notice is simply to make the 
public aware of the issues raised in the requests for rulemaking and to 
obtain the public's input, in the form of comment and relevant 
information, to help EPA determine appropriate action in response to 
each of these requests. In particular, EPA seeks input regarding: The 
universe of vessels operating on navigable waters that use sewage 
treatment devices; technical information on the performance, 
effectiveness and costs of vessel sewage treatment devices, including 
performance testing data; suggestions on what, if any, changes to the 
performance standards might be appropriate; and information on 
monitoring, recordkeeping and reporting approaches for vessel sewage 
discharges.

DATES: Comments must be received on or before November 9, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2010-0126, by one of the following methods:
    1. http://www.regulations.gov: Follow the online instructions for 
submitting comments.
    2. E-mail: ow-docket@epa.gov, Attention Docket ID No. EPA-HQ-OW-
2010-0126,
    3. U.S. Mail: Water Docket, U.S. Environmental Protection Agency, 
Mailcode: 2822-1T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, 
Attention: Docket ID No. EPA-HQ-OW-2010-0126. Please include a total of 
two copies in addition to the original.
    4. Hand Delivery or Courier Service: Water Docket, EPA Docket 
Center, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, 
DC 20004, Attention: Docket ID No. EPA-HQ-OW-2010-0126. Such deliveries 
are only accepted during the Docket's normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2010-
0126. EPA's policy is that all comments received 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 information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA

[[Page 39684]]

Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For 
additional instructions on submitting comments, go to Unit I.B and Unit 
VI of the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Water Docket. The 
Office of Water (OW) Water Docket Center is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The Water Docket 
telephone number is (202) 566-2426, and the Docket's address is Water 
Docket, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, 
DC 20004. The Public Reading Room is 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.

FOR FURTHER INFORMATION CONTACT: Kathryn Benz, U.S. Environmental 
Protection Agency Headquarters, Office of Water, Office of Wetlands, 
Oceans, and Watersheds, Mailcode: 4504T, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460; telephone number: (202) 564-1223; e-mail: 
msdstandards-hq@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this action apply to me?

    Today's Notice does not contain, modify or establish any regulatory 
requirements, nor does it discuss any specific regulatory options. This 
Notice simply: (1) Notifies the public that EPA has received a petition 
for rulemaking and another separate request for rulemaking 
(collectively, ``rulemaking requests'') asking the Agency to revise the 
performance standards for marine sanitation devices (MSDs) (devices 
that treat vessel sewage) under section 312(b)(1) of the CWA and 
provides a summary of those requests, and (2) seeks comment, technical 
input, and factual information on issues associated with the requests.
    Today's Notice will be of interest to the general public, State 
agencies, other Federal agencies, manufacturers of MSDs, independent 
laboratories, and owners or operators of commercial and recreational 
vessels with toilets installed onboard that operate on U.S. navigable 
waters. This listing is not intended to be exhaustive, but rather 
provides a guide for readers to identify which entities might be 
interested in this Notice. Other types of entities not listed here 
might also be interested in this Notice.

B. What should I consider as I prepare my comments for EPA?

1. Submitting Confidential Business Information (CBI)
    Do not submit CBI to EPA through http://www.regulations.gov or e-
mail. For CBI information on a disk or CD-ROM that you mail to EPA, 
mark the outside of the disk or CD-ROM as CBI and then identify 
electronically within the disk or CD-ROM the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. Information marked as CBI will not be 
disclosed except in accordance with procedures set forth in 40 CFR Part 
2. Additional information on submitting CBI for purposes of this Notice 
is included in Unit VI of the SUPPLEMENTARY INFORMATION section of this 
document.
2. Tips for Preparing Your Comments
    When submitting comments, please:
     Identify this Notice by docket number and other 
identifying information (subject heading, Federal Register date, and 
page number).
     Follow directions. The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives; 
and provide reasons for your suggested alternatives.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns and 
suggest alternatives.
     Explain your views as clearly as possible.
     Make sure to submit your comments and any supporting 
information/data by the comment period deadline identified in this 
Notice.

C. How can I get copies of this document and other related information?

    1. Docket. EPA has established an official public docket for this 
Notice under Docket ID. No. EPA-HQ-OW-2010-0126. The official public 
docket consists of the documents specifically referenced in this 
Notice, any public comments received, and other information related to 
this Notice. Although a part of the official docket, the public docket 
does not include CBI or other information whose disclosure is 
restricted by statute. The official public docket is the collection of 
materials that is available for public viewing at the Water Docket, EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20004. 
This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The Docket telephone number 
is (202) 566-2426. A reasonable fee will be charged for copies.
    2. Electronic Access. An electronic version of the public docket, 
including this Federal Register document, is available through EPA's 
electronic public docket and comment system. You may access the public 
docket at http://www.regulations.gov to view public comments, to 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. For additional information about EPA's public docket, 
visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. Although not all docket materials may be available 
electronically, you may still access any of the publically available 
docket materials through the Docket Facility identified in Unit I.C(1).

II. Regulation of Sewage Discharges From Vessels Under the Clean Water 
Act

A. Relationship Between Clean Water Act Sections 312 and 402

    The Clean Water Act (CWA) is the centerpiece of Federal legislation 
addressing the discharge of pollutants into waters of the United 
States. Section 301(a) of the CWA provides that ``the discharge of any 
pollutant by any person shall be unlawful'' unless the discharge is in 
compliance with certain other sections of the Act. 33 U.S.C. 1311(a). 
The CWA defines ``discharge of a pollutant'' as ``(A) any addition of 
any pollutant to navigable waters from any point source, (B) any 
addition of any pollutant to the waters of the contiguous zone or the 
ocean from any point source other than a vessel or other floating

[[Page 39685]]

craft.'' 33 U.S.C. 1362(12). A ``point source'' is a ``discernible, 
confined and discrete conveyance'' and includes a ``vessel or other 
floating craft.'' 33 U.S.C. 1362(14). One way a person may discharge a 
pollutant without violating the section 301 prohibition is to obtain a 
National Pollutant Discharge Elimination System (NPDES) permit under 
section 402. 33 U.S.C. 1342.
    While EPA has issued an NPDES Vessel General Permit (VGP) for 
discharges incidental to the normal operation of certain vessels, 
vessel sewage discharges within the meaning of CWA section 312 are not 
subject to NPDES permitting and are thus excluded from coverage under 
the VGP. This is because, while sewage is defined as a ``pollutant'' 
under the CWA, sewage from vessels within the meaning of section 312, 
which includes graywater in the case of commercial vessels operating on 
the Great Lakes, is exempt from this statutory definition. 33 U.S.C. 
1322(a)(6); 33 U.S.C. 1362(6). As a result, vessel owners/operators are 
not required to obtain NPDES permits before discharging this waste.\1\ 
Rather, Congress enacted a separate non-permitting scheme--CWA section 
312--to regulate the discharge of sewage from vessels.
---------------------------------------------------------------------------

    \1\ Note, however, that commercial vessels greater than 79 feet 
in length which are not operating on the Great Lakes need to obtain 
coverage under EPA's recently issued VGP if the vessel discharges 
graywater combined with sewage in one effluent stream. Under the 
VGP, discharges of graywater that contain sewage are eligible for 
coverage under the permit (except for those discharges from 
commercial vessels in the Great Lakes) and must meet the discharge 
limitation requirements in Parts 2 and 5 (if applicable), as well as 
any applicable CWA section 312 requirements for sewage.
---------------------------------------------------------------------------

B. CWA Section 312

    CWA sections 312(a)-(m) provide the framework under which EPA and 
the U.S. Coast Guard regulate sewage discharges from vessels. 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 MSD 
certified by the Coast Guard to meet applicable performance standards. 
33 U.S.C. 1322(h). The CWA defines a ``marine sanitation device'' as 
``any equipment for installation on board a vessel which is designed to 
receive, retain, treat, or discharge sewage, and any process to treat 
such sewage.'' 33 U.S.C. 1322(a)(5). ``Sewage'' is ``human body wastes 
and the wastes from toilets and other receptacles intended to receive 
or retain body wastes'' and includes graywater discharges from 
commercial vessels (as defined at 33 U.S.C. 1322(a)(10)) operating on 
the Great Lakes. 33 U.S.C. 1322(a)(6). Discharges of graywater from 
non-commercial vessels on the Great Lakes, and from all vessels 
operating outside of the Great Lakes, are not regulated under CWA 
section 312.
    The provisions of section 312 are implemented jointly by EPA and 
the Coast Guard. EPA sets performance standards for MSDs and is 
involved 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 standards. 33 U.S.C. 1322(b) and (g).
    Unlike the section 402 NPDES program, States have a limited role in 
implementing the section 312 vessel sewage program. Except in the case 
of houseboats (as defined at CWA section 312(f)(1)(B)), States may not 
adopt or enforce any statute or regulation of the State or a political 
subdivision with respect to the design, manufacture, installation, or 
use of any MSDs. States may, in certain circumstances, request that EPA 
establish NDZs for vessel sewage or, after required findings are made 
by EPA, establish such zones themselves. See generally 33 U.S.C. 
1322(f); see also Unit II.A.3 of the SUPPLEMENTARY INFORMATION section 
of this document.
    The CWA also vests the Coast Guard and States with authority to 
enforce the provisions of section 312 and its implementing regulations. 
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. See 33 U.S.C. 1322(j).
1. No Discharge Zones
    Section 312 authorizes the establishment of NDZs, areas in which 
both treated and untreated sewage discharges from vessels are 
prohibited. See 33 U.S.C. 1322(f). States may establish an NDZ for some 
or all of their waters if EPA determines that ``adequate facilities for 
the safe and sanitary removal and treatment of the sewage from all 
vessels are reasonably available.'' 33 U.S.C. 1322(f)(3). States may 
also request that EPA establish NDZs by rulemaking (1) if EPA 
determines that the protection and enhancement of the quality of the 
waters warrants such a prohibition, or (2) to prohibit the discharge of 
vessel sewage into a drinking water intake zone. 33 U.S.C. 
1322(f)(4)(A)-(B). Additional information on NDZs can be found by 
visiting the following EPA Web site: http://www.epa.gov/owow/oceans/regulatory/vessel_sewage/vsdnozone.html.
2. EPA Performance Standards (40 CFR Part 140)
    Section 312(b)(1) of the CWA provides that ``after giving 
appropriate consideration to the economic costs involved, and within 
the limits of available technology, [EPA] shall promulgate Federal 
standards of performance for marine sanitation devices * * * which 
shall be designed to prevent the discharge of untreated or inadequately 
treated sewage into or upon the navigable waters * * *''. 33 U.S.C. 
1322(b)(1). Further, the standards must be consistent with maritime 
safety and marine and navigation laws and regulations. Id. Following 
this mandate, EPA finalized the performance standards for MSDs on 
January 29, 1976. The regulations promulgated at 40 CFR 140.3 
distinguish between (1) MSDs discharging in freshwaters whose inlets or 
outlets prevent ingress or egress by vessel traffic subject to the 
regulations, or in rivers that are not capable of navigation by 
interstate vessel traffic subject to the regulations, and (2) MSDs 
discharging in all other water bodies.
    In freshwaters not subject to ingress or egress by vessel traffic 
or in rivers that are not capable of interstate vessel traffic, no 
discharge of sewage is allowed. To meet this requirement, all vessels 
with installed toilets operating in these water bodies must be equipped 
with a device that prevents the discharge of treated or untreated 
sewage (i.e., a holding tank), or the operator must secure the 
treatment device so as to prevent the discharge of sewage. See 40 CFR 
140.3(a)(1).
    EPA set separate performance standards for MSDs discharging in all 
other water bodies. On or before January 30, 1980, if the MSD had a 
discharge, it was required to produce an effluent with no visible 
floating solids and a fecal coliform bacterial count not greater than 
1,000 per 100 milliliters (mL). See 40 CFR 140.3(a)(2). After January 
30, 1980, EPA generally required MSDs which have a discharge to produce 
an effluent with a fecal coliform bacterial count not greater than 200 
per 100 mL, and no more than 150 milligrams (mg) total suspended solids 
per liter. See 40 CFR 140.3(d). See also 40 CFR 140.3(b) (describing 
applicability of performance

[[Page 39686]]

standards to vessels owned and operated by the U.S. Department of 
Defense), and 40 CFR.140.3(e) and (f) (describing applicability of 
performance standards to certain vessels).
3. Coast Guard's Regulation of MSDs (33 CFR Part 159)
    Under the CWA, the Coast Guard is responsible for promulgating 
regulations governing the design, construction, installation, and 
operation of MSDs based on EPA's performance standards. 33 U.S.C. 
1322(b) and (g). This responsibility includes certification of MSDs. 
There are currently three types of MSDs: \2\
---------------------------------------------------------------------------

    \2\ Section 312 allows the Coast Guard, after consultation with 
EPA, to ``distinguish among classes, type, and sizes of vessels as 
well as between new and existing vessels, and may waive 
applicability of standards and regulations as necessary or 
appropriate for such classes, types and sizes of vessels.'' 33 
U.S.C. 1322(c)(2). Pursuant to this authority, the Coast Guard 
established three different categories of MSDs with different 
applications of EPA's performance standards. See generally 33 CFR 
159.53.
---------------------------------------------------------------------------

     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 visible floating solids and a fecal 
coliform bacterial count not greater than 1,000 per 100 mL.
     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 length. The performance standard applied to 
Type II MSDs is to produce an effluent with a fecal coliform bacterial 
count not greater than 200 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.
    The Coast Guard may certify a product line of MSDs for vessel 
installation and use if the production-quality model MSD complies with 
Coast Guard's design and testing criteria (33 CFR part 159), as 
confirmed by testing conducted at a Coast Guard-accepted independent 
laboratory. After Coast Guard review and certification, each MSD model 
is designated a certification number and issued a Certificate of 
Approval, typically valid for five years. MSDs manufactured during the 
certification period are deemed to have met the relevant performance 
standards and certification requirements and may be installed on 
vessels. During vessel inspections, the Coast Guard may examine an MSD 
to ensure that it is operable. 33 U.S.C. 1322(h)(4).
    The Coast Guard's regulations at 33 CFR part 159 apply to MSDs 
offered for sale or resale, or imported into the United States for sale 
or resale, and to vessels that have toilets and MSDs installed onboard 
and operate in the navigable waters. In addition to CWA section 312, 
and as further described in Unit V in the SUPPLEMENTARY INFORMATION 
section of this document, sewage discharges from certain vessels may 
also be subject to regulation under other statutes or international 
treaties including the Departments of Labor, Health and Human Services, 
and Education, and Related Agencies Appropriations Act, 2001, also 
known as ``Title XIV'' (applies to certain cruise ships operating in 
Alaska), and/or Annex IV to the ``International Convention for the 
Prevention of Pollution from Ships, 1973, as modified by the Protocol 
of 1978 relating thereto'' (``MARPOL'') (applies if the vessel's flag 
State is a party to Annex IV).

III. Summary of Rulemaking Requests

    EPA received the following petition for rulemaking and other 
separate request for rulemaking asking the Agency to revise its 
regulations establishing performance standards under section 312(b) of 
the CWA:

A. Friends of the Earth Petition

    On April 28, 2009, pursuant to the Administrative Procedure Act, 
Friends of the Earth (FOE) petitioned EPA to initiate rulemaking to 
revise the regulations containing the CWA section 312(b) performance 
standards for Type II MSDs. FOE also requests that EPA establish 
``strong'' monitoring, recordkeeping and reporting requirements 
pursuant to CWA section 312 to ensure compliance with the performance 
standards.

B. Other Request for Rulemaking

    EPA received separate letters forwarded by Representative C.W. Bill 
Young (Florida, 10th District) and Senator Bill Nelson (Florida), dated 
December 10, 2008, and April 9, 2009, respectively, on behalf of their 
constituent, Charles B. Husick. In general, Mr. Husick requests that 
EPA: (1) Establish new performance standards for Type I MSDs (installed 
on vessels less than or equal to 65 feet in length); and (2) revise the 
existing regulations at 40 CFR Part 140 to allow certain vessels 
equipped with MSDs that meet the revised performance standards to 
discharge in tidal waters, including areas designated as NDZs, except 
those water bodies where it could be demonstrated that discharges of 
effluent meeting the proposed performance standards would cause 
``measurable harm to the aquatic environment.''

C. Documents Cited in Rulemaking Requests

    Both FOE and Mr. Husick assert that the CWA section 312(b) 
performance standards are outdated, and that available technology can 
meet more stringent standards than the current requirements for MSDs. 
To support these contentions, Mr. Husick cites a draft report (now 
final) detailing performance evaluation tests performed by EPA on two 
Type I MSD models (EPA final report, ``Performance Evaluation of Type I 
Marine Sanitation Devices'' (2010), available at: http://www.epa.gov/ORD/NRMRL/pubs/600r10008/600r10008.pdf; also available in the docket 
for this Notice), and FOE primarily cites data contained in EPA's 
``Cruise Ship Discharge Assessment Report'' (2008) that assessed waste 
streams from cruise ships operating in Alaska, and analyzed the 
environmental management, including treatment, of those waste streams 
(available at:  http://www.epa.gov/owow/oceans/cruise_ships/cruise_ship_disch_assess_report.html; also available in the docket for this 
Notice).

D. Status of the Rulemaking Requests

    On May 14, 2009, EPA sent a response to FOE acknowledging receipt 
of the petition. EPA also provided responses to Representative Young 
and Mr. Husick on March 12, 2009, and June 10, 2009, respectively. In 
the letters to Mr. Husick and Representative Young, EPA noted that the 
Agency would consider Mr. Husick's opinions and requests about 
performance standards for Type I MSDs. In response to Mr. Husick's 
request that EPA revise the regulations at 40 CFR part 140 to allow 
certain vessels equipped with devices that meet revised performance 
standards to discharge in tidal waters, including areas designated as 
NDZs, EPA's letter noted that the CWA does not currently provide EPA 
with the authority to allow this request with respect to NDZs. In 
particular, EPA's letter noted that CWA section 312(f)(3) provides that 
a ``State may completely prohibit the discharge from all vessels of any 
sewage, whether treated or not * * *''. FOE's petition, the letters 
forwarded by Representative Young and Senator Nelson to the

[[Page 39687]]

Agency on behalf of Mr. Husick, and EPA's initial responses to these 
requests are available in the docket for this Notice.

IV. Request for Public Input and Comment

    There are a number of complex issues that EPA, in consultation with 
the Coast Guard, would need to consider should EPA decide to initiate 
rulemaking. These issues include, for example, how to minimize, as 
appropriate, any potential inconsistencies between domestic or 
international laws that regulate discharges of vessel sewage and any 
revisions to the CWA section 312 program. Based on these complexities, 
EPA is seeking public input as it determines how best to respond to the 
rulemaking requests.
    We welcome public input on all technical and programmatic issues 
that the public believes warrant our consideration in determining how 
to respond to the rulemaking requests, and what, if any, changes to the 
performance standards for MSDs are appropriate. In particular, we are 
interested in obtaining information and data on vessel sewage treatment 
devices that have undergone rigorous, verifiable and repeatable testing 
or evaluation. Furthermore, we are interested in any analytical data 
obtained from treated sewage samples taken at the point of discharge 
from treatment devices installed onboard vessels. The Agency is already 
coordinating with the Coast Guard to collect such existing information. 
Today's Notice is intended to ensure we obtain early public input and 
all relevant and currently available information to inform any future 
Agency decisions.
    As previously noted, in addition to regulation under CWA section 
312, sewage discharges from certain vessels may also be subject to 
regulation under a variety of other statutes or international treaties, 
including Title XIV and/or MARPOL Annex IV. It is important to consider 
these regimes when providing data and responding to the categories and 
questions posed below. For additional information on Title XIV and 
MARPOL Annex IV, please refer to Unit V in the SUPPLEMENTARY 
INFORMATION section of this document.
    While we welcome information and comments on all issues related to 
the rulemaking requests and potential revisions to the performance 
standards for MSDs, we especially would appreciate input, in the form 
of public comment, relevant information or data, on topics outlined in 
the following categories:
    CATEGORY 1--What existing public or private data sources are 
available for use in identifying, categorizing, and describing:
    A. The numbers, types, and service of foreign-flagged and domestic 
vessels currently operating in U.S. navigable waters that have toilets 
installed onboard?
    B. Of the domestic-flagged vessels described in response to inquiry 
(1.A) above, how many have one (or more) of the following sewage 
treatment devices installed onboard:
     Type I MSD?
     Type II MSD?
     Type III MSD?
    C. Of the foreign-flagged vessels described in response to inquiry 
(1.A) above, how many have one (or more) of the following sewage 
treatment devices installed onboard: \3\
---------------------------------------------------------------------------

    \3\ The CWA defines a ``marine sanitation device'' as ``any 
equipment for installation on board a vessel which is designed to 
receive, retain, treat, or discharge sewage, and any process to 
treat such sewage.'' 33 U.S.C. 1322(a)(5). Under this definition, 
Sewage Treatment Plants, Sewage Comminuting and Disinfecting 
Systems, or Sewage Holding Tanks are all types of MSDs. However, 
these terms have distinct applications under the CWA and MARPOL 
Annex IV regimes. Therefore, vessel sewage treatment devices are 
referred to as MSDs for purposes of the CWA, and in the context of 
MARPOL Annex IV, vessel sewage treatment devices are referred to as 
Sewage Treatment Plants, Sewage Comminuting and Disinfecting Systems 
or Sewage Holding Tanks.
---------------------------------------------------------------------------

     Type II MSD (or) Sewage Comminuting and Disinfecting 
System?
     Type III MSD (or) Sewage Holding Tank?
     Sewage Treatment Plant (STP)?
    D. Of those foreign-flagged vessels with STPs described in response 
to inquiry (1.C) above, how many have devices that are:
     Certified to meet the MARPOL Annex IV effluent standards 
and performance tests adopted in Resolution MEPC.2(VI)?
     Certified to meet the MARPOL Annex IV effluent standards 
and performance tests adopted in Resolution MEPC.159(55)?
    Desirable input under this category would include either citations 
to databases or documents where such information is available, or the 
submission of actual information on vessel numbers and categories with 
citations to the source data. If submitting actual information or data 
on vessel numbers or categories, please also include information that 
describes the vessels. Examples of useful information include: Whether 
the vessel is domestic or foreign-flagged; whether the vessel is used 
in recreational, public or commercial service; if the vessel is used in 
commercial service, the nature of the service; the size (i.e., length 
and tonnage) of the vessel, the number of persons the vessel is 
certified to carry, and the rated capacity of the vessel's sewage 
treatment device. This information would be useful to the Agency in 
identifying and categorizing the universe of vessels affected by any 
potential revisions to the performance standards. Information or 
suggestions on how to obtain this information for foreign-flagged 
vessels would be especially useful.
    CATEGORY 2--What existing product information or performance data 
is available for:
    A. MSDs certified to meet the performance standards and testing 
requirements described at 33 CFR Part 159? (Please Note: EPA is seeking 
input on information that is not currently contained in the Coast 
Guard's certification files.)
    B. STPs that have been tested and received Certificates of Type 
Approval certifying that the device meets the MARPOL Annex IV effluent 
standards and performance tests in either Resolution MEPC.2(VI) or 
Resolution MEPC.159(55)?
    Citations to databases or documents where available, or the 
submission of actual product information, product literature (e.g., 
operating manual or guidance), and performance data for the device, 
together with supporting citations to the underlying data, would be 
helpful. Table 1 lists specific information of interest.

[[Page 39688]]

                                 Table 1
------------------------------------------------------------------------
                                     Performance data  (Please note: EPA
    General product information      is interested in analytical data in
                                         their entirety, if possible)
------------------------------------------------------------------------
 Manufacturer name and        Certification testing
 contact information (address,        date(s).
 phone/fax number, e-mail address,    Testing location:
 Web site address).                   laboratory or on vessel.
 Model name/number.           Testing methodology/
 Type I, II or III (MSD       testing protocol used, including
 only).                               the analyte test methods used
                                      (e.g., a given EPA or ISO test
                                      method).
 Date when Certificate of     Information regarding the
 Type Approval was issued (and copy   volume of process water added per
 of Certificate, if available).       unit volume of raw influent.
 Certifying country/body.     Influent and effluent
                                      total suspended solids (TSS)
                                      concentrations.
 Rated capacity.              Influent and effluent
                                      thermotolerant coliform
                                      concentrations.
 Pretreatment method (if      Influent and effluent e.
 any).                                coli concentrations.
 Treatment method (if any).   Influent and effluent
                                      enterococci concentrations.
 Disinfection method (if      Influent and effluent
 any).                                biological oxygen demand over five
 System designed to treat     days (BOD5).
 graywater only, sewage only, or      Influent and effluent
 combined graywater and sewage;       chemical oxygen demand (COD).
 source of graywater (if              Where available, influent
 applicable).                         and effluent nutrient
 Vacuum or gravity feed.      concentrations (e.g., total
 Flushwater: Fresh, salt,     phosphorus, orthophosphate, total
 or both.                             nitrogen, total Kjeldahl nitrogen,
 Ability for the system to    ammonia nitrogen,
 treat nutrients (e.g., nitrogen,     Nitrate+Nitrite).
 phosphorous, etc.) (if any) or       Effluent pH.
 other pollutants for which limits    Effluent total residual
 do not exist under the existing      chlorine/total residual oxidant.
 CWA 312 standards.
                                      Number of samples
                                      collected in any given test run or
                                      sampling period.
                                      Number of zero or non-
                                      detected values (include MDL and
                                      MRL) in any given test run or
                                      sampling period.
                                      Laboratory name and
                                      contact information (address,
                                      phone/fax number, e-mail address).
                                      Data on potential
                                      differences in the equipment's
                                      ability to treat a combined
                                      graywater and sewage influent
                                      versus a sewage-only influent (if
                                      applicable).
------------------------------------------------------------------------

    EPA is also interested in any information about the installation 
requirements, limitations, and costs associated with the sewage 
treatment devices. Examples of useful information include:
     The costs of the devices (including initial capital costs, 
installation costs, and operation and maintenance costs), the extent to 
which these costs vary based on the type or class of vessel, and the 
number of vessels on which the device has been installed.
     The difficulty or ease of installing these devices on 
either new or existing vessels (including whether installation requires 
dry docking, and if so, for how long, and how much space is required 
onboard a vessel for these devices to operate).
     Any limitations on the use of a device with regard to 
vessel length, tonnage, type of service, treatment volume or flow 
rates, power requirements, influent salinity, crew training needs or 
safety concerns, and the expected lifespan of the device once 
installed.
    This information would be useful to the Agency in determining 
whether there are available vessel sewage treatment devices that can 
achieve more stringent standards than the existing CWA section 312(b) 
performance standards, and what limitations in technology might exist. 
This information would also be useful to the Agency should it decide to 
consider the need for regulation of other pollutants (e.g., nutrients, 
metals) contained in vessel sewage waste streams, and the degree to 
which available devices are able to treat these additional pollutants.
    Please note that for category 2, EPA is most interested in data, 
information or public comment on devices that have received 
certification from a competent authority (e.g., either a Certificate of 
Approval issued by the Coast Guard or a Certificate of Type Approval 
issued by a certifying body pursuant to MARPOL Annex IV), or have 
undergone equally rigorous independent testing or evaluation.
    CATEGORY 3--Are you aware of any existing information about other 
countries' domestic laws that establish standards or discharge 
limitations for vessel sewage?
    Citations to the relevant laws or submission of the actual text 
describing the standards or discharge limitations would be useful. 
Other examples of helpful information under this category include: 
Descriptions of the types of vessels (e.g., commercial, recreational 
and/or public vessels) and the discharges covered by the domestic 
regulatory regime; the geographic scope of such regimes; the specific 
nature of the regulatory standards or limitations; and the technical 
basis for such standards or limitations. This information would be 
useful as the Agency considers whether, and, if so, how to revise the 
MSD performance standards and what technical and/or operational 
limitations might exist based on other countries' efforts to regulate 
vessel sewage discharges. Please note that for this inquiry EPA is 
primarily interested in other countries' domestic standards or 
discharge limitations for vessels operating in their waters or flying 
their flag, and that we already have information on relevant 
international treaty requirements (e.g., the MARPOL Annex IV effluent 
standards; see Unit V of the SUPPLEMENTARY INFORMATION section of this 
document for a summary description of MARPOL Annex IV).
    CATEGORY 4--Given existing international and Federal limitations 
and controls regulating discharges of sewage from vessels, and in light 
of the numerous CWA section 312 State-established NDZs, should EPA 
consider revisions to the performance standards for MSDs, and what 
should be the basis for such a decision?
    Readers are again invited to refer to illustrative examples of 
relevant statutes and treaties that are briefly summarized in Unit V of 
the SUPPLEMENTARY INFORMATION section of this document. Helpful 
comments under this category would address what revisions to the

[[Page 39689]]

performance standards might be necessary and for which type(s) of MSD 
(e.g., Type I versus Type II, or both), and what are the impacts, both 
positive and negative, of revising the current CWA section 312 
performance standards. This information would be useful to the Agency 
as it considers relative priorities for possible rulemaking, and in the 
event that EPA grants either rulemaking request, this information would 
also be helpful as the Agency determines how to best minimize 
inconsistencies with other applicable regulatory regimes.
    CATEGORY 5--What existing information is available on the current 
practices, protocols or regulatory approaches to testing, monitoring 
and/or reporting sewage discharges from vessels, and what, if any, are 
the practical limitations or burdens associated with these practices?
    Desirable input under this category would include information on if 
and how sewage effluent is currently monitored or tested and how data 
are reported to regulatory bodies, either voluntarily or to meet 
regulatory requirements. Desirable information also includes the 
specific parameters monitored or tested, costs associated with the 
testing, monitoring and recordkeeping practices, the cost of any vessel 
retrofitting to allow for the testing and monitoring, the frequency of 
testing and/or monitoring, and information on the use/availability of 
sewage alarm monitors. Helpful information also includes what other 
measures are being used to verify performance and to assess whether the 
sewage treatment device is properly operating or functioning once 
installed onboard. This information would be useful to the Agency as it 
determines how it might respond to FOE's request for a monitoring and 
recordkeeping program under CWA section 312.

V. Selected Examples of Other Regulatory Schemes Addressing Sewage 
Discharges From Vessels

A. The International Convention for the Prevention of Pollution From 
Ships

    Because of the international nature of maritime commerce, many of 
the customs, practices, rules, and regulations associated with vessel 
operations are addressed through international agreements and 
conventions. A majority of ocean-going 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 Annexes to MARPOL address a range of operational discharges 
from vessels. The United States is a party to Annexes I (Oil), II 
(Noxious Liquid Substances), III (Harmful Substances in Packaged Form), 
V (Garbage), and VI (Air Emissions), but not Annex IV (Sewage). Thus, 
the United States is not bound by the provisions of Annex IV. However, 
in addition to being subject to the vessel sewage provisions of CWA 
section 312 while in the U.S. three mile territorial sea or inland 
waters, vessels flying the flag of countries that are parties to MARPOL 
Annex IV remain subject to the Annex's requirements no matter where 
these vessels sail. Maritime authorities of Annex IV parties (the 
``flag State'' or ``Administration'') are responsible for ensuring that 
the vessels registered under their flag are in compliance with 
applicable Annexes and the corresponding guidelines and regulations.
1. MARPOL Annex IV
    The principal international instrument regulating discharges of 
sewage from vessels is Annex IV to MARPOL. Annex IV initially entered 
into force in September 2003, was thereafter revised, and the revisions 
entered into force internationally in August 2005. See resolution 
MEPC.115(51); available in the docket for this Notice. 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). Annex IV is effectuated by regulations (binding on 
signatories to the Annex) and associated guidelines that contain, among 
other requirements, limits on the discharge of sewage into the sea, a 
provision for reception facilities at ports and terminals to receive 
sewage, and requirements for the survey and certification of a vessel's 
sewage treatment device. Vessels that comply with Annex IV requirements 
are issued an International Sewage Pollution Prevention Certificate 
(ISPPC) by their Administration or Recognized Organization (RO).
    Vessels subject to Annex IV are required to undergo periodic 
surveys to ensure compliance with the Annex IV requirements; surveys 
are to be conducted every five years by the Administration or RO. Among 
other things, a vessel undergoing a survey must demonstrate that it is 
equipped with either (1) An STP type-approved by the Administration, 
taking into account the operational requirements based on standards and 
test methods developed by the International Maritime Organization 
(IMO)'s Marine Environment Protection Committee (MEPC), (2) an approved 
sewage comminuting and disinfecting system, or (3) an approved sewage 
holding tank.
    In addition to the survey requirements, Annex IV contains 
prohibitions on the discharge of sewage. 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 
nautical miles 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 
nautical miles 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 (See resolution MEPC.157(55) providing the 
recommendations on standards for the rate of discharge of untreated 
sewage; available in the docket for this Notice); or
     The vessel is using a type-approved STP that has been 
certified by the Administration to meet the applicable IMO 
recommendations and regulations, the test results are laid down in the 
ship's ISPPC, and the effluent does not produce visible floating solids 
or cause discoloration of the surrounding water.
2. Revised Annex IV Effluent Standards and Performance Tests for STPs
    As previously noted, with respect to STPs, the MARPOL Annex IV 
regulations require vessel owners/operators to demonstrate that the 
vessel is equipped with a type-approved STP that meets the operational 
requirements based on standards and test methods developed by the MEPC. 
These MARPOL requirements for certification of an STP are functionally 
similar to the Coast Guard's certification process for MSDs: The STP 
undergoes a series of performance tests to demonstrate that the device 
produces an effluent meeting the prescribed standards outlined in the 
MARPOL Annex IV guidelines. Once this demonstration has been made, the 
Administration will issue a Certificate of Type Approval for that STP 
model.
    On December 3, 1976, the IMO adopted effluent standards and 
guidelines for performance tests for STPs, and invited signatory 
governments to establish testing programs in accordance with the 
standards and guidelines. See resolution

[[Page 39690]]

MEPC.2(VI); available in the docket for this Notice. On October 13, 
2006, the MEPC adopted revised effluent standards and performance tests 
for STPs. See resolution MEPC.159(55); available in the docket for this 
Notice. According to the latest resolution adopted by the MEPC, the 
revised effluent standards and performance tests reflect ``current 
trends for the protection of the marine environment and developments in 
the design and effectiveness of commercially available sewage treatment 
plants * * *''. Id. The revised standards and testing requirements 
apply to STPs installed onboard ships on or after January 1, 2010. 
Ships with STPs installed prior to that date may continue to use 
equipment certified to the previous standards. See resolution 
MEPC.2(VI) for previous standards.
    A comparison of the previous (MEPC.2(VI)) and revised 
(MEPC.159(55)) MARPOL Annex IV effluent standards for STPs to the 
current CWA performance standards for Type II MSDs is presented in the 
following table (Table 2).

                                                     Table 2
----------------------------------------------------------------------------------------------------------------
                                           MARPOL 73/78 ANNEX IV STANDARDS FOR STPs          CWA PERFORMANCE
               ANALYTE                --------------------------------------------------  STANDARDS FOR TYPE II
                                              MEPC.2(VI)              MEPC.159(55)                 MSDs
----------------------------------------------------------------------------------------------------------------
Coliform.............................  Geometric mean L)..  Geometric mean L)..........................  Geometric mean L)...........................  .......................  L).............  As low as practicable..  liter. Title 
XIV also requires that the discharged effluent meet secondary treatment 
standards for 5-day biochemical oxygen demand, suspended solids, and 
pH. See 40 CFR 133.102 (secondary treatment standards). Finally, Title 
XIV requires that regulated cruise ships traveling at least six knots 
and discharging treated sewage outside of one nautical mile from shore 
must meet EPA's CWA section 312 performance standards for Type II MSDs 
(an effluent with a fecal coliform bacterial count not greater than 200 
per

[[Page 39691]]

100 mL, and no more than 150 mg total suspended solids per liter).\4\
---------------------------------------------------------------------------

    \4\ Many of the cruise ships operating in the navigable waters 
of the United States are registered under flag Administrations who 
are signatories to MARPOL Annex IV. As such, these foreign-flagged 
cruise ships subject to Title XIV must meet the requirements of 
Annex IV, CWA section 312, and Title XIV.
---------------------------------------------------------------------------

    Like the CWA section 312 program, Title XIV is jointly implemented 
by EPA and the Coast Guard: Congress provided responsibility for 
regulatory discharge standards to EPA and responsibility for 
enforcement to the Coast Guard. In particular, Title XIV authorizes EPA 
to revise or develop additional standards for sewage and graywater 
discharges from cruise ships operating in applicable waters of Alaska, 
if appropriate. Alaska is also authorized to petition EPA to establish 
NDZs for sewage and graywater discharges from cruise ships regulated 
under Title XIV. Title XIV requires the Coast Guard to incorporate an 
inspection regime into its commercial vessel examination program that 
will verify compliance with the requirements of the statute. Title XIV 
also authorizes the Coast Guard to conduct unannounced inspections and 
require cruise ship owners/operators to keep logbooks of all sewage and 
graywater discharges, and provides for administrative and criminal 
penalties for violations of the statute's provisions. The Coast Guard 
has promulgated regulations to implement the various provisions of 
Title XIV. See 33 CFR 159.301 et seq.

VI. Additional Information on Submitting CBI

    You are entitled to assert a business confidentiality claim 
covering all or part of the information you submit in response to this 
Notice, in accordance with the procedures described in EPA's CBI 
regulations, 40 CFR part 2, subpart B. Under 40 CFR 2.201(e), business 
confidentiality incorporates the concept of trade secrecy and other 
related legal concepts which give (or may give) a business the right to 
preserve the confidentiality of business information and to limit its 
use or disclosure by others in order that the business may obtain or 
retain business advantages it derives from its rights in the 
information. EPA will construe your failure to furnish a business 
confidentiality claim with your response as a waiver of that claim, and 
the information may be made available to the public or authorized 
representatives without further Notice to you.
    The criteria EPA will use in determining whether material you claim 
as business confidential is entitled to confidential treatment are set 
forth at 40 CFR 2.208. This regulation provides, among other things, 
that you must satisfactorily demonstrate that: (1) The information is 
within the scope of business confidentiality as defined at 40 CFR 
2.201(e); (2) that you have taken reasonable measures to protect the 
confidentiality of the information and that you intend to continue to 
do so; (3) the information is not and has not been reasonably 
obtainable by legitimate means without your consent; and (4) the 
disclosure of the information is likely to cause substantial 
competitive harm to your business position. See 40 CFR 2.208 (a)-(d).
    Do not submit CBI to EPA through http://www.regulations.gov or e-
mail. Clearly mark the page, paragraph and sentence when identifying 
the information that you claim to be CBI. See 40 CFR 2.203(b) for 
additional instructions on the method for asserting a business 
confidentiality claim. For CBI information on a disk or CD-ROM that you 
mail to EPA, mark the outside of the disk or CD-ROM as CBI and then 
identify electronically within the disk or CD-ROM the specific 
information that is claimed as CBI. In addition to one complete version 
of the comment that includes information claimed as CBI, a copy of the 
comment that does not contain the information claimed as CBI must be 
submitted for inclusion in the public docket. Information so marked 
will not be disclosed except in accordance with procedures set forth in 
40 CFR part 2. EPA may, without further notice, provide the public or 
authorized representative with any information not subject to a CBI 
claim.

    Dated: July 2, 2010.
Denise Keehner,
Director, Office of Wetlands, Oceans, and Watersheds.
[FR Doc. 2010-16909 Filed 7-9-10; 8:45 am]
BILLING CODE 6560-50-P
```