2010-16909. 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: [e-mail], 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 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 [phone], 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 [phone].

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: [phone]; e-mail: [e-mail].

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 [phone]. 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 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.

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 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]

• 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 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]

• 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.

Table 1

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

ANALYTE	MARPOL 73/78 ANNEX IV STANDARDS FOR STPs		CWA PERFORMANCE STANDARDS FOR TYPE II MSDs
	MEPC.2(VI)	MEPC.159(55)
Coliform	Geometric mean ≤ 250 per 100 mL (fecal coliform; most probable number)	Geometric mean ≤ 100 per 100 mL (thermotolerant coliform)	≤ 200 per 100 mL (fecal coliform).
Total Suspended Solids (TSS) (mg/L)	Geometric mean ≤ 50	Geometric mean ≤ 35.	≤ 150.
pH		6-8.5.
BOD5 (mg/L)	Geometric mean ≤ 50	Geometric mean. ≤ 25
COD (mg/L)		≤ 125.
Residual Chlorine (mg/L)	As low as practicable	< .5.

3. Coast Guard Policy With Respect to MARPOL Annex IV and the Revised Effluent Standards

Although the United States is not a party to MARPOL Annex IV, a U.S.-flagged vessel engaged in international voyages may still be required to comply with its provisions if the vessel operates in the waters of a port State that is a party to Annex IV. The Coast Guard has developed guidance and policies in order to address the potential for adverse port State control actions against U.S.-flagged vessels operating overseas. (This guidance also accords reciprocity to foreign-flagged vessels subject to Annex IV while operating in waters subject to the United States' jurisdiction.) See Navigation and Vessel Inspection Circular (NVIC) No. 1-09 (June 23, 2009); available in this docket.

Because the United States is not a party to MARPOL Annex IV, the Coast Guard cannot issue an ISPPC to domestically-flagged vessels, and instead issues a Statement of Voluntary Compliance (SOVC). U.S.-flagged vessels engaged in international voyages with sewage treatment devices that comply with Annex IV standards may be eligible to receive a SOVC. This certificate, issued by the Coast Guard or an Authorized Classification Society, demonstrates voluntary compliance with the revised Annex IV standards and testing requirements. While U.S.-flagged vessels are not required to obtain an SOVC, these vessels must still be able to demonstrate compliance with Annex IV while engaged in international voyages, or risk being detained overseas when operating in waters subject to the jurisdiction of parties to Annex IV.

The Coast Guard's policy outlined in NVIC No. 1-09 also notes that Coast Guard-certified Type II MSDs that are installed on or after January 1, 2010, and are unable to meet the revised Annex IV standards for STPs may still qualify as sewage comminuting and disinfecting devices under Annex IV, provided that the vessel is equipped with a satisfactorily sized storage tank. However, this may mean that some U.S.-flagged vessels utilizing Type II MSDs will be unable to discharge treated sewage effluent within three nautical miles of land where the port State is a signatory to MARPOL Annex IV.

B. Certain Alaska Cruise Ship Operations

Amid growing public concerns about the quantity and quality of discharges from cruise ships operating in certain areas in Alaska, Congress enacted an omnibus appropriation on December 21, 2000, that included new statutory requirements for certain cruise ships discharging graywater and sewage in Alaska (Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 2001, Pub. L. 106-554, 114 Stat. 2763, enacting into law Title XIV of Division B of H.R. 5666, 114 Stat. 2763A-315, and codified at 33 U.S.C. 1901 Note (Title XIV)).

Title XIV does not supersede regulation of sewage discharges from cruise ships under CWA section 312. Rather, Title XIV established separate discharge standards for sewage and graywater discharges from those cruise ships authorized to carry 500 or more passengers and operating in the waters of the Alexander Archipelago, the navigable waters of the United States within the State of Alaska, and within the Kachemak Bay National Estuarine Research Reserve. Specifically, Title XIV requires that such cruise ships discharging within one nautical mile of shore, or discharging in any Alaskan waters when the vessel is traveling under six knots, must meet the following standards: for fecal coliform, the geometric mean of samples taken during any 30-day period may not exceed 20 fecal coliform per 100 mL, and no more than 10% of the samples may exceed 40 fecal coliform per 100 mL; for chlorine, total chlorine residual does not exceed 10.0 micrograms/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 100 mL, and no more than 150 mg total suspended solids per liter).^[4]

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.

Footnotes

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.

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.

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.

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.