[Federal Register Volume 60, Number 128 (Wednesday, July 5, 1995)]
[Proposed Rules]
[Pages 34940-34943]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16418]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 140
[FRL-5254-2]
RIN 2040-AC51
Marine Sanitation Devices; Proposed Regulation to Establish
Drinking Water Intake Zones in Two Sections of the Hudson River, New
York State
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency is proposing to establish
two Drinking Water Intake Zones in two portions of the Hudson River, in
response to an application received by the New York State Department of
Environmental Conservation (NYSDEC). Establishment of a Drinking Water
Intake Zone serves to completely prohibit the discharge of vessel
sewage, treated or untreated, to waters contained in that zone.
Proposed Zone 1 is bounded by the Mohawk River on the south and Lock 2
on the north. It is approximately 8 miles long. Zone 2 is bounded on
the south by the Village of Roseton on the western shore and bounded on
the north by the southern end of Houghtaling Island. Zone 2 is
approximately 60 miles long.
DATES: Comments on this proposed rule must be submitted to EPA on or
before September 5, 1995. Public Hearings regarding this proposed rule
will be held in New Paltz, New York on August 9, 1995 and in Waterford,
New York on August 10, 1995. Comments may be submitted orally or in
writing at either of these Public Hearings.
ADDRESSES: Written comments or requests for information may also be
submitted to Patrick M. Durack, Chief, Water Permits and Compliance
Branch (25th Floor), U.S. Environmental
[[Page 34941]]
Protection Agency Region 2, 290 Broadway, New York, New York, 10007-
1866.
Public Hearings are scheduled at the following locations:
1. On August 9, 1995 at the offices of the New York State
Department of Environmental Conservation at 21 South Putt Corners Road,
New Paltz, NY from 6:30 p.m. to 8:30 p.m.
2. On August 10, 1995 at the Town of Waterford Civic Center, 35
Third Street, Waterford, NY from 6:30 p.m. to 8:30 p.m.
FOR FURTHER INFORMATION CONTACT: Philip Sweeney, 212-637-3765.
SUPPLEMENTARY INFORMATION:
I. Background
In July 1992 the New York State Department of Environmental
Conservation (NYSDEC) submitted an application for two reaches of the
Hudson River to be designated by EPA as Drinking Water Intake Zones.
Section 312(f)(4)(B) of Public Law 92-500, as amended by Public Law 95-
217 and Public Law 100-4, (the ``Clean Water Act''), states, ``Upon
application by a State, the Administrator shall, by regulation,
establish a drinking water intake zone in any waters within such State
and prohibit the discharge of sewage from vessels within that zone.''
Region II requested that authority for taking action in response to
this application be delegated from the Administrator to the Regional
Administrator. That authority was delegated on November 16, 1992.
Proposed Zone 1 is in the Hudson River/Champlain Canal and is
bounded by the Mohawk River on the south and Lock 2 on the north. It is
approximately 8 miles long. This zone is classified in the Official
Compilation of Codes, Rules and Regulations of the State of New York (6
NYCRR) Part 941.6, Item Number 1, as one Class A segment. This
classification was assigned in February 1967. Class A is the standard
given to waters of New York for the protection of a source of water
supply for drinking, culinary, or food processing purposes. There is
one drinking water intake located in Zone 1, authorized for 2.0 million
gallons per day, which serves the Town and Village of Waterford,
Saratoga County, New York. This portion of the Hudson River adjoins
Saratoga County on the west and Rensselaer County on the east.
Zone 2 is also in the Hudson River and is bounded on the south by
the Village of Roseton on the western shore and on the north by the
southern end of Houghtaling Island. This zone is classified in 6 NYCRR
as two segments, both Class A. The northern segment, which stretches
from the southern end of Houghtaling Island (at light #72) to the
southern end of Esopus Island (at light #28), was classified as Class B
in 1966 and reclassified by the State of New York as Class A in 1969.
The southern segment of Zone 2 stretches from the southern end of
Esopus Island (at light #28) to the line formed by Roseton on the west
shore and Low Point on the east shore in the general area of Chelsea,
New York. This southern segment of Zone 2 was classified on October 15,
1966 as Class A. There are six authorized drinking water intakes in
Zone 2. They are listed below:
------------------------------------------------------------------------
Authorized
taking in
Community served million
gallons
per day
------------------------------------------------------------------------
Rhinebeck Village and Hamlet of Rhinecliff.................. 1.0
Hyde Park Fire and Water District, Town of Hyde Park........ 6.0
City and Town of Poughkeepsie............................... 16.0
New York City, Chelsea Emergency Pump Station............... 100.0
Port Ewan Water District, Town of Esopus.................... 1.0
Highland Water District..................................... 3.0
------------------------------------------------------------------------
Authority to enforce the prohibition of vessel sewage discharges
lies with the U.S. Coast Guard, which may by agreement utilize
enforcement officers of the U.S. Environmental Protection Agency, other
Federal agencies, or States, in accordance with Sec. 312(k) of the
Clean Water Act. Both the Federal and New York State governments will
take a role in implementation and enforcement of the proposed
prohibition in the two drinking water intake zones. The prohibition
will take effect sixty (60) days after notice of the final regulation.
This regulation will be issued after consideration of all public
comments received as a result of this notice. At the time of final
rulemaking, EPA will publish a notice on the implementation plan for
this prohibition. A major focus of the implementation plan for this
prohibition will be public education, specifically boater education.
For the purposes of boater understanding and compliance, it is
worthwhile to note landmarks which approximate the boundaries of the
drinking water intake zones, which are in view of the Hudson River
boater. For Zone 1, the Mohawk River and Lock #2 are visible landmarks.
For Zone 2, the northern border is at the southern end of Houghtaling
Island. The Newburgh-Beacon Bridge, which is south of the southern zone
border, is an obvious landmark for the southern end of Zone 2. All of
Zone 2 lies between Houghtaling Island and the Newburgh-Beacon Bridge,
and these landmarks are therefore useful markers for boaters.
II. Compliance with Other Acts and Orders
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is significant and
therefore subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact or entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 6501
et seq., whenever an agency is developing regulations, it must prepare
and make available for public comment the impact of the regulations on
small entities (i.e., small businesses, small organizations, and small
governmental jurisdictions). A regulatory flexibility analysis is not
required if the head of the agency certifies that the rule will not
have significant economic effect on a substantial number of small
entities. EPA policy dictates that an Initial Regulatory Flexibility
Analysis (IRFA) be prepared if the proposed action will have any effect
on any small entity. An abbreviated IRFA can be prepared depending on
the severity of the economic impact and the relevant statute's
allowance of alternatives.
The Agency has prepared an IRFA for this proposed rule. In summary,
the
[[Page 34942]]
IRFA describes that a prohibition of vessel sewage discharge in these
two zones will apply to any commercial or recreational vessel with on-
board toilet facilities that navigates the Hudson River in the
described areas. Only commercial vessels are considered small entities
with respect to the Regulatory Flexibility Act. All vessels are already
subject to the EPA Marine Sanitation Device Standards at 40 CFR Part
140 and the U.S. Coast Guard Marine Sanitation Device Standards at 33
CFR Part 159. These standards prohibit the overboard discharge of
vessel sewage in any freshwater lakes, freshwater reservoirs, or other
freshwater impoundments whose inlet or outlet is such as to prevent the
ingress or egress by vessel traffic subject to this regulation, or in
rivers not capable of being navigated, (40 CFR 140.3). In other waters,
including the Hudson River, vessels with on-board toilets shall have
U.S. Coast Guard certified marine sanitation devices which either
retain sewage or treat sewage to the applicable standards. There are
three types of marine sanitation devices certified by the U.S. Coast
Guard. Type I and Type II devices are both flow-through devices that
treat sewage through maceration and disinfection. Type III devices are
holding tanks. Vessel sewage is held in tanks until it can be properly
disposed of at a pump-out facility, or it may be discharged untreated
outside of U.S. territorial waters. Most Type III devices are equipped
with a discharge option, in the form of a Y-valve, which allows the
boater to discharge the sewage directly overboard, which is legal only
outside of U.S. territorial waters. Since the Hudson River is a U.S.
territorial water, the discharge of untreated vessel sewage is
prohibited under the existing regulations. Today's proposal, therefore,
will not change the legal requirements for boats with Type III devices.
Consequently, the only small entities affected by this proposed rule
will be commercial boats with on-board toilets with a Type I or II
marine sanitation device which use these approximately 68 miles of the
Hudson River. The proposal will affect these vessels by requiring
retention and pump-out of their treated sewage, or discharge outside of
the designated zones. This proposal requires no reporting or
recordkeeping activity on the part of small entities. Because of the
nominal cost associated with purchase of portable Type III devices and
use of pump-out facilities, and the option to discharge sewage treated
in accordance with Federal standards outside of the zones, this
proposed rule imposes no significant economic impact on a substantial
number of small entities.
As mentioned above, NYSDEC submitted the application for these
proposed Drinking Water Intake Zones under Section 312(f)(4)(B) of the
Clean Water Act--the section that sets national standards for
discharges of vessel sewage and prohibits the states or political
subdivision thereof from adopting or enforcing any other regulation or
standard for vessel sewage discharges. There are several exceptions to
this prohibition. Section 312(f)(4)(B) is one of these exceptions. This
section was added to the Clean Water Act in 1977 in order to provide
the states with an opportunity to have a more stringent standard (i.e.,
a prohibition) for drinking water intake areas. The Act states, ``Upon
application by a State, the Administrator shall, by regulation,
establish a drinking water intake zone in any waters within such State
and prohibit the discharge of sewage from vessels within that zone.''
EPA interprets this statement to limit its discretion in establishing
drinking water intake zones once a state has submitted an application.
The statute in this case precludes the Agency from considering other
regulatory options, thus limiting EPA's flexibility in implementing
this portion of the Act.
C. Paperwork Reduction Act
The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is intended to
minimize the reporting and recordkeeping burden on the regulated
community, as well as minimize the cost of Federal information
collection and dissemination. In general, the Act requires that
information requests and recordkeeping requirements affecting 10 or
more non-Federal respondents be approved by the Office of Management
and Budget. Since today's rule would not establish or modify any
information and recordkeeping requirements, it is not subject to the
requirements of the Paperwork Reduction Act.
D. Unfunded Mandates Reform Act of 1995
Under Section 202 of the Unfunded Mandates Reform Act of 1995 (the
Act), P.L. 104-4, which was signed into law on March 22, 1995, EPA
generally must prepare a written statement for rules with Federal
mandates that may result in estimated costs to State, local, and tribal
governments in the aggregate, or to the private sector, of $100 million
or more in any one year. When such a statement is required for EPA
rules, under Section 205 of the Act EPA must identify and consider
alternatives, including the least costly, most cost-effective or least
burdensome alternative that achieves the objectives of the rule. EPA
must select that alternative, unless the Administrator explains in the
final rule why it was not selected or it is inconsistent with law.
Before EPA establishes regulatory requirements that may significantly
or uniquely affect small governments, including tribal governments, it
must develop under Section 203 of the Act a small government agency
plan. The plan must provide for notifying potentially affected small
governments, giving them meaningful and timely input in the development
of EPA regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising them on compliance
with the regulatory requirements.
EPA has determined that this rule does not include a Federal
mandate that may result in estimated annualized costs of $100 million
or more to either State, local, and tribal governments in the
aggregate, or to the private sector. All vessels that are equipped with
marine sanitation devices and that navigate the Hudson River are
already subject to the EPA Marine Sanitation Device Standards at 40 CFR
Part 140 and the U.S. Coast Guard Marine Sanitation Device Standards at
33 CFR Part 159. These standards prohibit the overboard discharge of
untreated vessel sewage in the Hudson River and require that vessels
with on-board toilets shall have U.S. Coast Guard certified marine
sanitation devices which either retain sewage or treat sewage to the
applicable standards. There are three types of marine sanitation
devices certified by the U.S. Coast Guard. Only those vessels that have
either one of the two types of certified flow-through devices will be
affected by this proposed rule. Those vessels affected by this rule
will either retain and pump out treated sewage or discharge outside of
the designated zones. Any costs associated with those activities will
be minimal and it is therefore estimated that the annualized costs to
State, local and tribal governments in the aggregate, or to the private
sector, will not be or exceed $100 million. Thus, today's rule is not
subject to the requirements of Section 202 and 205 of the Act. Because
the rule contains no regulatory requirements that might significantly
or uniquely affect small governments, it also is not subject to the
requirements of Section 203 of the Act. Small governments are subject
to the same requirements as other entities whose duties result from
this rule and they have the same ability as other entities to retain
and pump out treated
[[Page 34943]]
sewage or discharge outside of the designated zones.
List of Subjects in 40 CFR Part 140
Environmental protection; Sewage disposal, Vessels.
Dated: June 21, 1995.
William J. Muszynski,
Acting Regional Administrator.
For the reasons set out in the preamble, 40 CFR part 140 is
proposed to be amended as follows:
PART 140--[AMENDED]
1. The authority citation for part 140 continues to read as
follows:
Authority: Sec. 312, as added Oct. 18, 1972, Pub. L. 92-500,
sec. 2, 86 Stat. 871. Interpret or apply sec. 312(b)(1), 33 U.S.C.
1322(b)(1).
2. In Sec. 140.4 paragraph (b)(1) is amended by designating the
undesignated text after the colon as paragraph (b)(1)(i) and by adding
paragraph (b)(1)(ii) to read as follows:
Sec. 140.4 Complete prohibition.
* * * * *
(b)***
(1)***
(ii) Two portions of the Hudson River in New York State, the first
of which is bounded by the Mohawk River on the south and Lock 2 on the
north, as described in item 1 of 6 New York Code of Rules and
Regulations (NYCRR) Part 941.6, and the second of which is bounded on
the north by the southern end of Houghtaling Island and on the south by
a line between the Village of Roseton on the western shore and Low
Point on the eastern shore, as described in Items 2 and 3 of 6 NYCRR
Part 858.4.
[FR Doc. 95-16418 Filed 7-3-95; 8:45 am]
BILLING CODE 6560-50-P
