E9-3045. Final National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges Incidental to the Normal Operation of a Vessel for Alaska and Hawaii

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of final Vessel General Permit issuance for Alaska and Hawaii.

SUMMARY:

EPA previously announced the finalization of the NPDES general permit for discharges incidental to the normal operation of vessels, also referred to as the Vessel General Permit (VGP), in the Federal Register on December 29, 2008 (73 FR 79493). EPA did not finalize the VGP for the states of Hawaii and Alaska, because as of permit signature, EPA had not received a certification pursuant to section 401 of the Clean Water Act (CWA) from Hawaii or a final response on the national consistency determination required by section 307(c)(1) of the Coastal Zone Management Act (CZMA) from Alaska. EPA has since received the required section 401 certification and CZMA response and has amended the permit to reflect them. Today's action provides notice of the final permit issuance for the states of Hawaii and Alaska.

The VGP was issued in response to a District Court ruling that vacates, as of February 6, 2009, a long-standing EPA regulation that excludes discharges incidental to the normal operation of a vessel from the need to obtain an NPDES permit. As of February 6, 2009, discharges incidental to the normal operation of a vessel that had formerly been exempted from NPDES permitting by the regulation will be subject to the prohibition in CWA section 301(a) against the discharge of pollutants without a permit.

EPA solicited information and data on discharges incidental to normal vessel operations to assist in developing two NPDES general permits in a Federal Register Notice published June 21, 2007 (72 FR 32421). The majority of information and data in response to that notice came from seven different groups: individual citizens, commercial fishing representatives, commercial shipping groups, environmental or outdoor recreation groups, the oil and gas industry, recreational boating-related businesses, and state governments. EPA considered all the information and data received along with other publicly available information in developing two proposed vessel permits.

EPA published the two proposed permits and accompanying fact sheets for public comment on June 17, 2008 (73 FR 34296). As proposed, the VGP would have covered all commercial and non-recreational vessels and those recreational vessels longer or equal to 79 feet, and the proposed Recreational General Permit (RGP) would have covered recreational vessels less than 79 feet in length. However, after the permits were proposed, Congress enacted two new laws that impact the universe of vessels covered under today's permit. On July 29, 2008, Senate bill S. 2766 (“the Clean Boating Act of 2008”) was signed into law (Pub. L. 110-288). This law provides that recreational vessels shall not be subject to the requirement to obtain an NPDES permit to authorize discharges incidental to their normal operation. As a result of this legislation, EPA is not finalizing the proposed RGP and has also modified the VGP, which included those recreational vessels over 79 feet, to eliminate that coverage. On July 31, 2008, Senate bill S. 3298 was signed into law (Pub. L. 110-299). This law generally imposes a two-year moratorium during which time neither EPA nor states can require NPDES permits for discharges (except ballast water discharges) incidental to the normal operation of vessels of less than 79 feet and commercial fishing vessels of any length. EPA is not taking final action on the proposed permit as it would apply to these vessels and has revised the final VGP to reflect the new law.

DATES:

Today's action is effective on February 6, 2009. This effective date is necessary to provide affected vessels the necessary permit coverage under the Clean Water Act in light of the February 6, 2009 vacatur of the 40 CFR 122.3(a) NPDES permitting exemption.^[1] Under the Agency's authority in 40 CFR Part 23, this permit (as applied to Alaska and Hawaii) shall be considered issued for the purpose of judicial review on February 6, 2009.^[2] Under section 509(b) of the Clean Water Act, judicial review of this general permit can be had by filing a petition for review in the United States Court of Appeals within 120 days after the permit is considered issued for purposes of judicial review. Under section 509(b)(2) of the Clean Water Act, the requirements in this permit may not be challenged later in civil or criminal proceedings to enforce these requirements. In addition, this permit may not be challenged in other agency proceedings. Deadlines for submittal of notices of intent are provided in part 1.5 of the VGP. This permit also provides additional dates for compliance with the terms of this permit.

FOR FURTHER INFORMATION CONTACT:

For further information on this final vessel NPDES general permit, contact Ryan Albert at EPA Headquarters, Office of Water, Office of Wastewater Management, Mail Code 4203M, 1200 Pennsylvania Ave., NW., Washington, DC 20460; or at tel. [phone]; or Juhi Saxena at EPA Headquarters, Office of Water, Office of Wastewater Management, Mail Code 4203M, 1200 Pennsylvania Ave., NW., Washington, DC 20460; or at tel. [phone]; or e-mail: [e-mail].

For EPA Region 9, contact Eugene Bromley at USEPA REGION 9, 75 Hawthorne Street, Mail Code: WTR-5, San Francisco, CA 94105; or at tel.: [phone]; or e-mail at [e-mail].

For EPA Region 10, contact Cindi Godsey at USEPA Region 10—Alaska Operations Office, Federal Building Room 537, 222 West 7th Avenue, #19 Mail Code: AOO/A, Anchorage, AK 99513-7588; or at tel.: [phone]; or e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Final Permit Apply to Me?

The VGP applies to all vessels operating in a capacity as a means of transportation, except recreational vessels as defined in CWA section 502(25), Public Law 110-288, that have discharges incidental to their normal operations into waters subject to this permit. With respect to (1) commercial fishing vessels of any size as defined in 46 U.S.C. 2101 and (2) those non-recreational vessels that are less than 79 feet in length, the coverage under this permit is limited to ballast water discharges only. Unless otherwise excluded from coverage by Part 6 of the permit, waters subject to this permit, means waters of the U.S. as defined in 40 CFR 122.2.

B. How Can I Get Copies of These Documents and Other Related Information?

1. Docket. EPA has established an official public docket for this action under Docket ID No. EPA-HQ-OW-2008-0055. The official public docket is the collection of materials, including the administrative record, for the final permit, required by 40 CFR 124.18. It is available for public viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. Although all documents in the docket are listed in an index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Publicly available docket materials are available electronically through http://www.regulations.gov and in hard copy at the EPA Docket Center Public Reading Room, open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is [phone] and the telephone number for the Water Docket is [phone]. In addition, the comments and information that EPA received in response to its June 21, 2007, Federal Register notice can be found in the public docket at http://www.regulations.gov by searching Docket ID No. EPA-HQ-OW-2007-0483.

2. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the “Federal Register” listings at http://www.epa.gov/​fedrgstr/​.

An electronic version of the public docket is available through the Federal Docket Management System (FDMS) found at http://www.regulations.gov. You may use the FDMS to view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once at the Web site, enter the appropriate Docket ID No. in the “Search” box to view the docket.

Certain types of information will not be placed in the EPA dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Section I.A.1.

3. Response to Public Comments. EPA received 173 comments on the proposed VGP from the shipping industry (108), States (28), Environmental Groups and the public (37). EPA has responded to all comments received and has included these responses in a separate document in the public docket for this permit. See the document titled Proposed VGP: EPA's Response to Public Comments.

III. Scope and Applicability of the 2008 VGP

A. CWA Section 401 Certification

EPA may not issue a permit authorizing discharges into the waters of a State until that State has granted certification under CWA section 401 or has waived its right to certify (or been deemed to have waived). 33 U.S.C. 1341(a)(1); 40 CFR 124.53(a). For this permit, a State was deemed to have waived its right to certify if it did not exercise that right within 60 days from the date the State was notified of the draft permit, unless EPA granted that State more time to certify based on “unusual circumstances.” 40 CFR 124.53(c)(3). If a State believed that any permit condition(s) more stringent than those contained in the draft permit were necessary to meet the applicable requirements of either the CWA or State law, the State had an opportunity to include those condition(s) in its certification. 40 CFR 124.53(e)(1). Hawaii provided such conditions in its certification, and EPA has added them to Part 6 of the VGP pursuant to CWA section 401(d). 33 U.S.C. 1341(d).

B. Coastal Zone Management Act Consistency Determination

The Coastal Zone Management Act (CZMA) and its implementing regulations (15 CFR Part 930) require that any Federal agency activity or federally licensed or permitted activity occurring within the coastal zone (or outside the coastal zone by affecting the coastal zone) of a state with an approved coastal zone management program (CZMP) be consistent with the enforceable policies of that approved program to the maximum extent practicable. Agency general permits that do not involve case-by-case or individualized determinations by the Agency are federal activities for the purposes of CZMA section 307(c)(1). Following proposal of the draft VGP, EPA provided the relevant state coastal zone management agencies with its national consistency determination regarding the enforceable policies in approved state CZMPs for the coastal zones including state waters where the VGP would authorize discharges. 15 CFR 930.31(d). For the VGP, EPA developed a national consistency determination pursuant to the CZMA regulations at 15 CFR 930.36(e).

Under the CZMA process, several States provided conditions to the VGP, based on specific enforceable coastal policies of the State, which allowed the State to concur with EPA's consistency determination. According to the regulations, EPA incorporated these conditions to the maximum extent practicable. If a State coastal zone management agency's conditions are not incorporated into the general permit or if the State coastal zone management agency objects to the general permit, then the general permit is not available for use by potential general permit users in that State unless the applicant who wants to use the general permit provides the State agency with the applicant's consistency determination and the State agency concurs. 15 CFR 930.31(d). NOAA has explained that “a State objection to a consistency determination for the issuance of a general permit would alter the form of CZMA compliance required, transforming the general permit into a series of case-by-case CZMA decisions and requiring an individual who wants to use the general permit to submit an individual consistency certification to the State agency in compliance with 15 CFR part 930.” 71 FR 788, 793. In States that have not provided conditions for incorporation into the permit to allow the State to concur, as well as States that have not objected to the permit, EPA's CZMA compliance requirements derive from CZMA section 307(c)(1). Id.

Subsequent to the publication of the VGP on December 29, 2009, but within the timeframes contemplated under the federal CZMA regulations (based on information requests from the State coastal zone management agency to EPA), the Alaska Division of Coastal and Ocean Management concurred with EPA's national consistency determination on January 13, 2009, and therefore, potential permittees in Alaska's waters may now seek coverage under the VGP.

C. Geographic Coverage of VGP

The VGP applies to discharges incidental to the normal operation of a vessel identified as being eligible for coverage in the final permit, into waters subject to the permit. These waters are “waters of the United States” as defined in 40 CFR 122.2 (extending to the reach of the 3-mile territorial sea as defined in section 502(8) of the CWA). The final permit covers vessel discharges in the waters of the U.S. in all States, Territories and Indian Country Land, regardless of whether a “state” is otherwise authorized to implement the NPDES permit program within its jurisdiction. For more information on this approach, see the fact sheet accompanying the final permit.

D. Categories of Vessels Covered Under VGP

The final vessel general permit (VGP) applies to owners and operators of non-recreational vessels that are 79 feet (24.08 meters) and greater in length, as well as to owners and operators of commercial vessels of less than 79 feet and commercial fishing vessels of any length which discharge ballast water.

The final VGP does not apply to recreational vessels of any size, commercial fishing vessels of any size which do not discharge ballast water, and non-recreational vessels of less than 79 feet which do not discharge ballast water. For non-recreational vessels of less than 79 feet in length and commercial fishing vessels that discharge ballast water, the only effluent limit these vessels are subject to are the VGP standards that apply to ballast water discharges.

IV. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

The legal question of whether a general permit (as opposed to an individual permit) qualifies as a “rule” or as an “adjudication” under the Administrative Procedure Act (APA) has been the subject of periodic litigation. In a recent case, the court held that the CWA Section 404 nationwide general permit before the court did qualify as a “rule” and therefore that the issuance of the general permit needed to comply with the applicable legal requirements for the issuance of a “rule.” National Ass'n of Home Builders v. U.S. Army Corps of Engineers, 417 F.3d 1272, 1284-85 (DC Cir. 2005) (Army Corps general permits under Section 404 of the Clean Water Act are rules under the APA and the Regulatory Flexibility Act; “Each NWP [nationwide permit] easily fits within the APA's definition ‘rule.’ * * * As such, each NWP constitutes a rule * * *”).

As EPA stated in 1998, “the Agency recognizes that the question of the applicability of the APA, and thus the RFA, to the issuance of a general permit is a difficult one, given the fact that a large number of dischargers may choose to use the general permit.” 63 FR 36489, 36497 (July 6, 1998). At that time, EPA “reviewed its previous NPDES general permitting actions and related statements in the Federal Register or elsewhere,” and stated that “[t]his review suggests that the Agency has generally treated NPDES general permits effectively as rules, though at times it has given contrary indications as to whether these actions are rules or permits.” Id. at 36496. Based on EPA's further legal analysis of the issue, the Agency “concluded, as set forth in the proposal, that NPDES general permits are permits [i.e., adjudications] under the APA and thus not subject to APA rulemaking requirements or the RFA.” Id. Accordingly, the Agency stated that “the APA's rulemaking requirements are inapplicable to issuance of such permits,” and thus “NPDES permitting is not subject to the requirement to publish a general notice of proposed rulemaking under the APA or any other law * * * [and] it is not subject to the RFA.” Id. at 36497.

However, the Agency went on to explain that, even though EPA had concluded that it was not legally required to do so, the Agency would voluntarily perform the RFA's small-entity impact analysis. Id. EPA explained the strong public interest in the Agency following the RFA's requirements on a voluntary basis: “[The notice and comment] process also provides an opportunity for EPA to consider the potential impact of general permit terms on small entities and how to craft the permit to avoid any undue burden on small entities.” Id. Accordingly, with respect to the NPDES permit that EPA was addressing in that Federal Register notice, EPA stated that “the Agency has considered and addressed the potential impact of the general permit on small entities in a manner that would meet the requirements of the RFA if it applied.” Id.

Subsequent to EPA's conclusion in 1998 that general permits are adjudications, rather than rules, as noted above, the DC Circuit recently held that nationwide general permits under section 404 are “rules” rather than “adjudications.” Thus, this legal question remains “a difficult one” (supra). However, EPA continues to believe that there is a strong public policy interest in EPA applying the RFA's framework and requirements to the Agency's evaluation and consideration of the nature and extent of any economic impacts that a CWA general permit could have on small entities (e.g., small businesses). In this regard, EPA believes that the Agency's evaluation of the potential economic impact that a general permit would have on small entities, consistent with the RFA framework discussed below, is relevant to, and an essential component of, the Agency's assessment of whether a CWA general permit would place requirements on dischargers that are appropriate and reasonable. Furthermore, EPA believes that the RFA's framework and requirements provide the Agency with the best approach for the Agency's evaluation of the economic impact of general permits on small entities. While using the RFA framework to inform its assessment of whether permit requirements are appropriate and reasonable, EPA will also continue to ensure that all permits satisfy the requirements of the Clean Water Act.

Accordingly, EPA has committed that the Agency will operate in accordance with the RFA's framework and requirements during the Agency's issuance of CWA general permits (in other words, the Agency commits that it will apply the RFA in its issuance of general permits as if those permits do qualify as “rules” that are subject to the RFA). In satisfaction of this commitment, during the course of this VGP proceeding, the Agency conducted the analysis and made the appropriate determinations that are called for by the RFA. In addition, and in satisfaction of the Agency's commitment, EPA will apply the RFA's framework and requirements in any future issuance of other NPDES general permits. EPA anticipates that for most general permits the Agency will be able to conclude that there is not a significant economic impact on a substantial number of small entities. In such cases, the requirements of the RFA framework are fulfilled by including a statement to this effect in the permit fact sheet, along with a statement providing the factual basis for the conclusion. A quantitative analysis of impacts would only be required for permits that may affect a substantial number of small entities, consistent with EPA guidance regarding RFA certification.^[3]

V. Analysis of Economic Impacts of VGP

EPA determined that, in consideration of the discussion in Section IV above, the issuance of the VGP may have the potential to affect a substantial number of small entities. Therefore, in order to determine what, if any, economic impact this permit may have on small businesses, EPA conducted an economic assessment of the VGP and the RGP. This economic analysis is included in the records for these permits. Based on this assessment, EPA concludes that despite a minimal economic impact on all entities, including small businesses, this permit is not likely to have a significant economic impact on a substantial number of small entities.

Including the ballast water and other discharge requirements, the draft economic impact analysis indicates that the best management practices in this permit would cost between $6.7 million and $16.7 million annually. Including paperwork requirements, the permit is estimated to cost between $7.7 and $21.9 million annually for domestic vessels. Including estimates of ballast water costs for foreign vessels, the permit is expected to cost between $8.9 and $23.0 million annually. Depending upon sector (vessel type), median costs per firm range from $1 to $795 in the low-end assumptions and from $5 to $1,967 in the high-end assumptions (excluding median values from commercial fishing vessels which are expected to be $0). Costs for the 95th percentile range from $7 for the Deep Sea Coastal and Great Lakes Passenger Vessels to $20,355 for marine cargo handling under low-end cost estimates and from $88 to $35,190 for the same vessel classes for high-end cost estimates (see table 7.1 of the economic assessment cost estimates across vessel classes). EPA applied a cost-to-revenue test which calculates annualized pre-tax compliance cost as a percentage of total revenues and used a threshold of 1 and 3 percent to identify entities that would be significantly impacted as a result of this Permit. The total number of entities expected to exceed a 1% cost ratio ranges from 213 under low cost assumptions to 308 under high cost assumptions. Of this universe, the total number of entities expected to exceed a 3% cost ratio ranges from 55 under low cost assumptions to 73 under high cost assumptions. The total universe that would be affected by this permit includes approximately 61,000 domestic flagged vessels and 8,000 foreign flagged vessels. Accordingly, EPA concludes that this permit is unlikely to result in a significant economic impact on any businesses and in particular, small businesses. The economic analysis is available in the record for the VGP.

V1. Paperwork Reduction Act

The information collection requirements in this permit have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. as part of the NPDES Consolidated ICR. On September 28, 2008 EPA published the first public notice of this ICR under the OMB number 2040-0004 and on December 17, 2008, EPA published the final public notice for a 30 day comment period. The information collection requirements for this permit are not enforceable until OMB approves the ICR.

This information must be collected in order to appropriately administer and enforce the terms and conditions of the Vessel General Permit. This information collection is mandatory as authorized by Clean Water Act Section 308 and all information collected will be treated as Confidential Business Information (CBI).

The information collection burden for the paperwork collection requirements of this permit is estimated to be 135,693 hours per year, which represents a burden of 0.64 hours per response per year, multiplied by a total of 210,759 responses per year from 65,625 respondents (note: to ensure that an adequate number of burden hours are requested, the number of respondents is slightly higher than the estimated 61,000 domestically flagged vessels identified in the economic analysis that would be affected by this permit). The frequency of responses varies, but includes every five years, annual, quarterly, and occasionally/as needed, depending on the specific reporting requirements. No reporting and recordkeeping costs beyond labor costs are estimated for this permit.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR Part 9. When this ICR is approved by OMB, the Agency will publish a technical amendment to 40 CFR Part 9 in the Federal Register to display the OMB control number for the approved information collection requirements contained in this final permit.

Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

Dated: February 2, 2009.

Alexis Strauss,

Director, Water Division, EPA Region 9.

Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

Dated: February 2, 2009.

Michael A. Bussell,

Director, Office of Water and Watersheds, EPA Region 10.

Footnotes

1.  The U.S. District Court for the Northern District of California has twice, at the request of parties to the litigation, delayed the date of vacatur of the 40 CFR 122.3(a) exclusion for discharges incidental to the normal operation of a vessel. See Northwest Environmental Advocates et al. v. United States EPA, 2008 U.S. Dist. LEXIS 66738 (N.D. Cal. August 31, 2008) (extending the date to December 19, 2008) and Northwest Environmental Advocates et al. v. United States EPA, No. C 03-05760-SI (December 17, 2008) (extending the date to February 6, 2009).

2.  Under 40 CFR 23.2, actions such as today's would by default be considered issued for purposes of judicial review two weeks after publication in the Federal Register. However, in other contexts, affected parties have expressed concern that deferring judicial review of Agency permits beyond the point at which regulated entities are obligated to comply with them may compromise judicial review rights. EPA is therefore exercising its discretion under 40 CFR 23.2 to deem today's permit “issued for purposes of judicial review” on the same date it becomes effective.

3.  EPA's current guidance, entitled Final Guidance for EPA Rulewriters: Regulatory Flexibility Act as Amended by the Small Business Regulatory Enforcement and Fairness Act, was issued in November 2006 and is available on EPA's Web site: http://www.epa.gov/​sbrefa/​documents/​rfafinalguidance06.pdf. After considering the Guidance and the purpose of CWA general permits, EPA concludes that general permits affecting less than 100 small entities do not have a significant economic impact on a substantial number of small entities.