[Federal Register Volume 61, Number 201 (Wednesday, October 16, 1996)]
[Proposed Rules]
[Pages 54014-54017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-26193]
[[Page 54013]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 140
Marine Sanitation Device Standard--Establishment of Drinking Water
Intake No Discharge Zone(s) Under Section 312(f)(4) (A) and (B) of the
Clean Water Act; Proposed Rule
Federal Register / Vol. 61, No. 201 / Wednesday, October 16, 1996 /
Proposed Rules
[[Page 54014]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 140
[FRL-5615-9]
Marine Sanitation Device Standard--Establishment of Drinking
Water Intake No Discharge Zone(s) Under Section 312(f)(4) (A) and (B)
of the Clean Water Act
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Clean Water Act (CWA) authorizes the Administrator of the
Environmental Protection Agency (EPA) to establish drinking water
intake no discharge zones upon application by a State. Within these
zones, the discharge of sewage from a vessel, whether treated or
untreated, is prohibited. This provision was added to the statute in
1977, after EPA had promulgated regulations on application requirements
for other types of no discharge zones. EPA has not promulgated
regulations specific to application requirements for drinking water
intake no discharge zones under the CWA. Applicants for drinking water
intake zones, therefore, have followed application requirements which
are not tailored to drinking water intakes, and provided more
information than needed for these no discharge zones. EPA is proposing
today to promulgate application requirements specific to drinking water
intake no discharge zones. The effect of today's proposal would be to
more specifically tailor the type of information required in an
application for a drinking water intake no discharge zone and reduce
the amount of information required.
DATES: Comments must be received on or before December 16, 1996. All
comments must be postmarked or delivered by hand to the address below
by this date.
ADDRESSES: Comments should be addressed to Drinking Water Intake Zones
Comment Clerk, Water Docket MC-4101; Environmental Protection Agency,
401 M St. S.W., Washington, D.C. 20460. The official record for this
rulemaking is available for viewing at EPA's Water Docket, Rm. M2616,
Waterside Mall, 401 M Street, S.W., Washington, D.C. 20460. For access
to the docket materials, call (202) 260-3027 between 9 a.m. and 3:30
p.m., Monday through Friday, excluding legal holidays for an
appointment. EPA public information regulation (40 CFR Part 2) provides
that a reasonable fee may be charged for copying.
EPA will also accept comments electronically, but these comments
must be submitted also in paper version. Comments should be addressed
to the following Internet address: ow-docket@epamail.epa.gov.
FOR FURTHER INFORMATION CONTACT: Deborah Lebow, Oceans and Coastal
Protection Division, United States Environmental Protection Agency,
4504F, 401 M St. S.W., Washington, D.C. 20460, (202) 260-8448.
SUPPLEMENTARY INFORMATION: EPA is today proposing to clarify the
application requirements for designating drinking water intake no
discharge zones under section 312 of the CWA. This rule only applies to
States requesting approval of drinking water intake no discharge zones
and has no direct effect on any regulated entity. These requirements
are being proposed pursuant to section 312(f)(4)(B) of the CWA (33
U.S.C. 1322(f)(4)(B)), which provides that ``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.'' The effect of this
proposal would be to set out application requirements specific to
drinking water intake no discharge zones, which would reduce the amount
of information States have submitted to EPA under existing 40 CFR
140.4(b) to establish these no discharge zones.
The public is invited to participate in this rulemaking by
submitting written views, data or arguments on any aspect of the
proposed rule or on any additional requirements the public feels should
be included. Comments should include the name and address of the person
commenting, identify this proposed rule by name (Establishment of
Drinking Water Intake No Discharge Zone(s)), cite the specific section
of the proposed rule to which each comment applies, and give the
reasons for the comment. Commenters are requested to submit any
references cited in their comments. Commenters are also requested to
submit 2 copies of their written comments and enclosures. Commenters
who want receipt of their comments acknowledged should include a self-
addressed, stamped envelope. No facsimiles (faxes) will be accepted.
For electronic comments, commenters should include their complete name,
full address, and E-mail address. Electronic comments must be submitted
as an ASCII file avoiding the use of special characters and any form of
encryption. Electronic comments will be transferred into a paper
version for the official record. EPA is experimenting with electronic
commenting, therefore commenters must submit both electronic comments
and duplicate paper comments. All comments post-marked or hand-
delivered by the expiration date of the comment period will be
considered before any action is taken on this proposed rule.
Organization of This Document
I. Background
II. Detailed Discussion of the Proposed Rule
III. Compliance with Other Laws and Executive Orders
A. Regulatory Flexibility Act
B. Paperwork Reduction Act
C. Executive Order 12866
D. The Unfunded Mandates Reform Act and Executive Order 12875
IV. Proposed Rule
I. Background
Section 312 of the CWA, entitled ``Marine sanitation devices,''
regulates the discharge of vessel sewage. The primary purpose of
section 312 is to prevent the discharge of untreated or inadequately
treated sewage from vessels into waters of the United States. This
provision is designed to help achieve the goal of the CWA which is to
restore and maintain the chemical, physical, and biological integrity
of the nation's waters.
Under sections 312(f)(3) and 312(f)(4) (A) and (B) of the CWA,
States may apply to EPA for the designation of certain waterbodies as
no discharge zones. Originally, section 312 contained only two
provisions addressing no discharge zones: sections 312(f)(3) and
312(f)(4)(A). Under section 312(f)(3), if a State determines that some
or all of the waters within that State require additional environmental
protection, the State may apply to the Administrator for approval of a
State designation of a no discharge zone. Approval of such application
depends, among other things, upon a finding by the Administrator that
adequate and reasonably available pump-out facilities exist for the
area to be designated a no discharge zone. The regulations at 40 CFR
140.4(a) specify the application requirements that must be met for
approval of a section 312(f)(3) no discharge zone. We are proposing to
add an introductory heading to clarify this linkage to CWA section
312(f)(3), but those regulations are not otherwise affected by today's
proposal. Currently, EPA has approved thirty such no discharge zones.
Under section 312(f)(4)(A), upon application by a State the Admini-
strator may determine that the protection and enhancement of the
[[Page 54015]]
quality of specified waters (e.g., pristine water bodies) requires a
complete prohibition of the discharge of sewage from vessels. This
determination is different from a section 312(f)(3) approval of a State
designation, in that the Administrator is not also required to
determine that adequate facilities for the safe and sanitary removal
and treatment of sewage from vessels are reasonably available. The
regulations at 40 CFR 140.4(b) set forth the criteria upon which the
Administrator will evaluate such a State application, and provide that
they apply to applications under section 312(f)(4) of the Act.
(Currently, EPA has designated one no discharge area for this second
type of no discharge zone, which is identified in 40 CFR
140.4(b)(1)(i).)
In 1977, Congress amended section 312 to add a new section
312(f)(4)(B). Under section 312(f)(4)(B), States may apply to EPA for a
complete prohibition of the discharge of sewage from vessels into a
body of water designated as a drinking water intake no discharge zone.
The statute requires that designation of a drinking water intake no
discharge zone may only be accomplished by regulation. For this type of
no discharge zone, the Administrator is not required to determine that
adequate facilities for the safe and sanitary removal and treatment of
sewage from vessels are reasonably available, nor is it required to
determine whether the protection and enhancement of the water quality
requires such a prohibition. Prior to this proposed regulation, EPA has
designated one drinking water intake no discharge zone under section
312(f)(4)(B), which is currently codified at 40 CFR 140.4(b)(1)(ii).
No regulations directly and specifically responsive to section
312(f)(4)(B) have been promulgated. Consequently, the regulations in 40
CFR 140.4(b) have been used, as they purport to apply to any no
discharge zone established under section 312(f)(4). The result of not
having regulations specifically dealing with section 312(f)(4)(B) is
that applicants may compile extraneous materials for a section
312(f)(4)(B) drinking water intake no discharge zone, and do not
provide other information that the Administrator needs to make a
section 312(f)(4)(B) decision. Today's proposed regulations clarify
that Sec. 140.4(b) only applies to designations for no discharge areas
under section 312(f)(4)(A) and adds a new proposed Sec. 140.4(c) to
specifically cover application requirements for the designation of
drinking water intake no discharge zones under section 312(f)(4)(B).
In clarifying the regulations pursuant to section 312(f)(4)(B), EPA
has sought to comply with Congressional intent expressed in the
legislative history for this section. The 1977 CWA Conference Report,
referring to section 312(f)(4)(B), stated ``[t]he conferees intend that
the Administrator [of the Environmental Protection Agency] define the
area to which the prohibition applies in his promulgation of such a
prohibition.'' See Clean Water Act of 1977, Conference Report (to
accompany H.R. 3199), H. Rep. No. 830, 95th Congress, 1st sess. (1977).
The Report went on to say ``[i]n implementing section 312(f)(4)(B), the
Administrator is cautioned to use discretion in establishing drinking
water intake zones. This new paragraph is intended to protect drinking
water and not to result in far reaching discharge prohibitions
unnecessary to protect drinking water.'' Id. The proposed regulations
are designed primarily to ensure that the size of the requested no
discharge zone is neither too large nor too small to protect drinking
water intake zones from vessel sewage.
II. Detailed Discussion of the Proposed Rule
Today's proposal would add new Sec. 140.4(c) to specifically
address application requirements for drinking water intake no discharge
zones under CWA section 312(f)(4)(B). In addition, the existing no
discharge zone designated under CWA secion 312 (f)(4)(B), now set out
in 40 CFR 140.4(b)(1)(ii), would be relocated into new
Sec. 140.4(c)(4)(i).
EPA is proposing today in 40 CFR 140.4(c) that in its application
to the Administrator for establishment of a drinking water intake no
discharge zone, a State should (1) identify and describe exactly and in
detail the location of the drinking water supply intake(s) and the
community served by the intake(s), including average and maximum
expected amounts of inflow; (2) specify and describe exactly and in
detail, the waters, or portions thereof, for which a complete
prohibition is desired, and where appropriate, average, maximum and low
flows; (3) include a map, preferably a USGS topographic quadrant map,
clearly marking by latitude and longitude the waters or portions
thereof to be designated a drinking water intake no discharge zone; and
(4) include a statement of basis justifying the size of the requested
drinking water intake no discharge zone, for example, identifying areas
of intensive boating activities.
The requirement that a State specify and describe exactly and in
detail the location of the drinking water supply intake(s) and the
community served by the intake(s) is intended to verify the existence
of a drinking water supply intake and to ensure that the location of
such intake corresponds to the area to be designated a drinking water
intake no discharge zone. Under this requirement, a State should
specify and describe the location of the intake in relation to the
location of the requested zone. The size of the community served by the
intake is also relevant to determining the size of the zone. For
example, the larger the drinking water needs of the community being
served, the stronger might be the justification for requesting a large
drinking water intake no discharge zone. This requirement can be met by
specifying the average and maximum expected amounts of inflow.
The requirement to specify and describe exactly and in detail, the
waters for which a complete prohibition is desired is intended to
assist the Administrator with the task of identifying and defining the
requested drinking water intake no discharge zone. The description
should include the geographic location of such body of water and other
pertinent details, and where appropriate, average, maximum and low
flows. Average, maximum and low flows will be relevant for rivers, but
not for certain lakes.
The requirement that a State submit a map is also intended to
assist the Administrator in documenting the location of the body of
water and the size of the drinking water intake no discharge zone.
Preferably, the map should be a USGS topographical quadrant map since
these will provide the greatest clarity. The desired drinking water
intake no discharge zone should be clearly indicated on such map by
latitude and longitude.
The requirement that a State applicant justify the size of the
requested zone is intended to ensure a rational relationship between
the size of the requested zone and the need to protect drinking water
for the designated community. For example, a drinking water intake
located in the proximity of an intensive boating area may require a
larger no discharge area to protect the integrity of the drinking
water. This requirement is designed to guard against far reaching
prohibitions that are unnecessary to protect drinking water, while at
the same time ensuring that prohibitions would affect a large enough
area to effectively protect the drinking water supply.
[[Page 54016]]
III. Compliance with Other Laws and Executive Orders
A. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
EPA must prepare a Regulatory Flexibility Analysis for regulations
having a significant impact on a substantial number of small entities.
The RFA recognizes three kinds of small entities, and defines them as
follows: (1) Small governmental jurisdictions: any government of a
district with a population of less than 50,000. (2) Small business: any
business which is independently owned and operated and not dominant in
its field, as defined by the Small Business Administration regulations
under the Small Business Act. (3) Small organization: any not for
profit enterprise that is independently owned and operated and not
dominant in its field.
As discussed in Section III.D. of this preamble on the Unfunded
Mandates Reform Act, today's proposed rule does not impose economic
burdens. Accordingly, the Administrator certifies that today's proposed
rule would not have a significant impact on a substantial number of
small entities, and that a Regulatory Flexibility Analysis therefore is
unnecessary.
B. Paperwork Reduction Act
The information collection requirements in this proposed rule 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. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No. 1791.01) and a copy may be obtained from Sandy Farmer, OPPE
Regulatory Information Division; U.S. Environmental Protection Agency
(2137); 401 M St., SW., Washington, D.C. 20460 or by calling (202) 260-
2740.
This information is required from States who wish to designate a
drinking water intake no discharge zone under CWA Section 312(f)(4)(B)
and it allows the EPA Administrator to evaluate State applications for
designating no discharge zones. This information is necessary to ensure
that the discharge area is neither too large nor too small to protect
drinking water intake zones from vessel sewage and it is not of a
confidential nature.
Applications for drinking water intake no discharge zones have an
estimated reporting burden averaging 70 hours per response and an
estimated annual record keeping burden of one hour per respondent at
approximately $1,472 per response. Burden means the total time, effort,
or financial resources expended by persons to generate, maintain,
retain, or disclose or provide information to or for a Federal agency.
This includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
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 are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
Comments are requested on the Agency's need for this information,
the accuracy of the provided burden estimates, and any suggested
methods for minimizing respondent burden, including through the use of
automated collection techniques. Send comments on the ICR to the
Director, OPPE Regulatory Information Division; U.S. Environmental
Protection Agency (2137); 401 M St., SW., Washington, D.C. 20460; and
to the Office of Information and Regulatory Affairs, Office of
Management and Budget, 725 17th St., NW, Washington, DC 20503, marked
``Attention: Desk Officer for EPA.'' Include the ICR number in any
correspondence. Since OMB is required to make a decision concerning the
ICR between 30 and 60 days after October 16, 1996, a comment to OMB is
best assured of having its full effect if OMB receives it by November
15, 1996. The final rule will respond to any OMB or public comments on
the information collection requirements contained in this proposal.
C. 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 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 of
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 proposed rule is not a
``significant regulatory action'' under the terms of Executive Order
12866 and is therefore not subject to OMB review.
D. The Unfunded Mandates Reform Act, and Executive Order 12875
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with
[[Page 54017]]
the regulatory requirements. EPA has determined that today's proposed
regulation does not impose any enforceable duties upon the private
sector. Therefore, this proposed rulemaking is not a ``private sector
mandate.''
Further, EPA has determined that today's action does not include, a
Federal mandate that may result in estimated costs of $100 million or
more to either State, local, or tribal governments in the aggregate, or
to the private sector. This proposed rulemaking should reduce the
reporting and recordkeeping burden on applicants. Thus, this proposed
rule is not subject to the requirements of sections 202 and 205 of the
UMRA. It is codifying in 40 CFR 140.4(c) that which already exists in
the statute and is self-implementing. Therefore, this action should
have no regulatory requirements that might significantly or uniquely
affect small governments. Executive Order 12875 requires that, to the
extent feasible and permitted by law, no Federal agency shall
promulgate any regulation that is not required by statute and that
creates a mandate upon a State, local, or tribal government, unless
funds necessary to pay the direct costs incurred by the State, local or
tribal government in complying with the mandate are provided by the
Federal government. EPA has determined that the requirements of
Executive Order 12875 do not apply to today's proposed rulemaking,
since no mandate is created by this action.
List of Subjects in 40 CFR Part 140
Environmental protection, Drinking Water Intake Zones, Marine
sanitation device standard; No discharge areas.
Dated: October 3, 1996.
Carol M. Browner,
Administrator.
PART 140--[AMENDED]
For the reasons set forth in the preamble, EPA proposes to amend 40
CFR part 140 as follows:
1. The authority citation for part 140 is revised to read as
follows:
Authority: Sec. 312, as added Oct. 18, 1972, Pub. L. 92-500,
sec. 2, 86 Stat. 871, 33 U.S.C. 1332(b)(1).
Sec. 140.4 [Amended]
2. Section 140.4 is amended:
a. In paragraph (a) introductory text, in the first sentence, by
revising the first word ``A'' to read ``a'' and by adding to the
beginning of the sentence the words ``Prohibition pursuant to CWA
section 312(f)(3):''.
b. In paragraph (b) introductory text, in the first sentence, by
revising the first word ``A'' to read ``a'' and by adding to the
beginning of the sentence the words ``Prohibition pursuant to CWA
section 312(f)(4)(A):'' and by removing from the first sentence the
words ``312(f)(4)'' and adding, in their place, the words
``312(f)(4)(A).''
c. In paragraph (b)(1) by removing the word ``prohibited:'' and
adding, in its place, the words ``prohibited pursuant to CWA section
312(f)(4)(A):'', and by redesignating paragraph (b)(1)(ii) as new
paragraph (c)(4)(i) and reserving paragraph (b)(1)(ii).
d. By adding the following new paragraph (c) to read as follows:
Sec. 140.4 Complete Prohibition.
* * * * *
(c)(1) Prohibition pursuant to CWA section 312(f)(4)(B): A State
may make written application to the Administrator of the Environmental
Protection Agency under section 312(f)(4)(B) of the Act for the
issuance of a regulation establishing a drinking water intake no
discharge zone which completely prohibits discharge from a vessel of
any sewage, whether treated or untreated, into that zone in particular
waters, or portions thereof, within such State. Such application shall:
(i) Identify and describe exactly and in detail the location of the
drinking water supply intake(s) and the community served by the
intake(s), including average and maximum expected amounts of inflow;
(ii) Specify and describe exactly and in detail, the waters, or
portions thereof, for which a complete prohibition is desired, and
where appropriate, average, maximum and low flows in million gallons
per day (MGD) or the metric equivalent;
(iii) Include a map, preferably a USGS topographic quadrant map,
clearly marking by latitude and longitude the waters or portions
thereof to be designated a drinking water intake zone; and
(iv) Include a statement of basis justifying the size of the
requested drinking water intake zone, for example, identifying areas of
intensive boating activities.
(2) If the Administrator finds that a complete prohibition is
appropriate under this paragraph, he or she shall publish notice of
such finding together with a notice of proposed rulemaking, and then
shall proceed in accordance with 5 U.S.C. 553. If the Administrator's
finding is that a complete prohibition covering a more restricted or
more expanded area than that applied for by the State is appropriate,
he or she shall also include a statement of the reasons why the finding
differs in scope from that requested in the State's application.
(3) If the Administrator finds that a complete prohibition is
inappropriate under this paragraph, he or she shall deny the
application and state the reasons for such denial.
(4) For the following waters the discharge from a vessel of any
sewage, whether treated or not, is completely prohibited pursuant to
CWA section 312(f)(4)(B):
(i) * * *
(ii) (Reserved).
[FR Doc. 96-26193 Filed 10-15-96; 8:45 am]
BILLING CODE 6560-50-P
