[Federal Register Volume 60, Number 239 (Wednesday, December 13, 1995)]
[Rules and Regulations]
[Pages 63941-63945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30406]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 140
[FRL-5345-4]
RIN 2040-AC51
Marine Sanitation Devices; Final Regulation to Establish Drinking
Water Intake Zones in Two Sections of the Hudson River, New York State
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency is establishing two
Drinking Water Intake Zones in 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. Zone 1 is bounded by
the northern confluence of 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.
EFFECTIVE DATES: The final rule will take effect April 11, 1996. In
accordance with 40 CFR 23.2, these amendments to the regulation shall
be considered issued for purposes of judicial review at 1 p.m. eastern
time, two weeks after publication.
ADDRESSES: Patrick M. Durack, Chief, Water Permits and Compliance
Branch (25th Floor), U.S. Environmental Protection Agency Region 2, 290
Broadway, New York, New York, 10007-1866.
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.
Zone 1 is in the Hudson River/Champlain Canal and is bounded by an
east-west line through the most northern confluence of the Mohawk River
which will be designated by the Troy-Waterford Bridge (126th Street
Bridge) 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 Low Point on the
eastern shore in the vicinity of Chelsea, 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 vicinity 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 prohibition in the two drinking
water
[[Page 63942]]
intake zones. The prohibition will take effect one hundred and twenty
(120) days after this notice. 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 Troy-Waterford Bridge (126th Street Bridge) 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. Public Comments and Response to Most Significant Comments
On July 5, 1995, EPA noticed the proposed regulation in the Federal
Register, which regulation would establish drinking water intakes zones
in two sections of the Hudson River. Upon publication of the proposed
regulation, a sixty day public comment period commenced and was closed
on September 5, 1995. During the comment period, two public hearings
were held at the following locations:
1. August 9, 1995 at the offices of the NYSDEC, 21 South Putt
Corners Road, New Paltz, New York from 6:30 p.m. to 8:30 p.m.
2. August 10, 1995 at the Town of Waterford Civic Center, 35 Third
Street, Waterford, New York from 6:30 p.m. to 8:30 p.m.
Written and/or oral statements were received by six individuals.
One individual represented the association of towboat operators.
Another individual represented the shipping operations for a major
petroleum company. Two individuals represented two citizens group
interested in the Hudson River. The comments of each individual are
summarized and responded to below:
Comment 1: One individual asserted that the proposed rule goes
beyond the proscriptions [sic] of the U.S. Coast Guard by effectively
mandating that commercial vessels which operate on the Hudson River
install a Type III marine sanitation device (MSD). She contended
further that while Section 312(f)(4)(B) of the Clean Water Act (CWA)
permits the establishment of a ``no discharge zone'' once a state
submits an application to EPA, the statute does not limit the options
which may be considered nor empower EPA to contravene federal
regulations promulgated by the U.S. Coast Guard which address MSDs
aboard vessels. The individual argued that the proposed rule
``oversteps the bounds of established international and domestic
statutes related to the discharge of sewage.''
Response 1: Section 312 of the CWA requires the Administrator, in
conjunction with the U.S. Coast Guard, to promulgate performance
standards for MSDs and requires the U.S. Coast Guard to promulgate
regulations governing the design, construction, installation and
operation of MSDs. Section 312(f)(4)(B) of the CWA, however, addresses
an issue other than performance standards, design, construction,
installation or operation of MSDs. This subsection of the CWA provides
that ``[u]pon 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 rule, which designates two drinking water intake
zones, is, therefore, not inconsistent with Coast Guard regulation and
is consistent with the CWA. The comment concerning international
agreements and statutes is non-specific and as such cannot be
addressed; moreover, the Hudson River is considered domestic waters.
Comment 2: The individual maintained that by proposing to
``prohibit the discharge of treated sewage, vessels with Type II MSDs
will be rendered non-operational in the winter months and only
operational at other times of the year.''
Response 2: EPA maintains that vessel operators may operate in
compliance with the no discharge requirements by utilizing permanently-
installed Type III systems; using portable Type III systems; or by
discharging treated waste outside the zone. However, EPA acknowledges
that certain circumstances (e.g. winter operation in Zone 2) could
preclude the ``discharge outside the zone'' option for certain vessels.
In these circumstances, vessel owners may find it necessary to use
either permanent or portable Type III systems. In response to the
concern about complying with no discharge requirements during winter
months without retrofitting with a permanent Type III system, EPA is
delaying the effective date of the rule to 120 days after final notice.
This change will allow additional time to retrofit and will allow
operators additional time to plan for the more challenging winter
operational period.
Comment 3: The two alternatives offered to vessel owners with Type
II MSDs is to either install a Type III MSD or discharge treated sewage
outside the no discharge zones. An individual argued that the off-
loading of sewage at a pump-out station located in the no discharge
zone is not a viable option for some vessel operators given the
physical dimensions, geographic location and depth of water at many of
the pump-out facilities on the Hudson River.
Response 3: Many vessel owners currently operating on the Hudson
River use Type III MSDs and are off-loading sewage. The fact that these
vessels commonly off-load sewage demonstrates that this is a viable
alternative for many other vessel operators, as well. While
applications made pursuant to section 312(f)(3) of the CWA must show
that adequate facilities for the safe and sanitary removal and
treatment of sewage are reasonably available, this is not a criterion
for applications or determinations made pursuant to section
312(f)(4)(B) of the CWA.
Comment 4: One individual declared that the proposed regulation
will have a detrimental operational and economic impact on commercial
vessels which have a Type II marine sanitation device on-board. She
criticized that the proposed rule characterizes the costs associated
with the purchase of Type III marine sanitation devices as ``nominal''
and explained that the actual cost associated with the purchase and
installation of a holding tank aboard a tugboat can be tens of
thousands of dollars depending upon the configuration of the vessel.
She concluded that the installation and utilization of a Type III MSD
is not a viable alternative for many tug/barge units transporting
petroleum products on the Hudson River.
Response 4: Retrofitting is not the only option available and some
vessel owners will choose not to retrofit, but will use portable
toilets or discharge outside the zones instead. EPA, however,
recognizes that some vessels will retrofit with a Type III MSD to
comply with the regulation and that there will be a cost associated
with retrofitting. EPAs original cost estimates were based on
equipment costs and did not include installation costs. The individual
points out that cost estimates should include installation of the
equipment as well as the purchase price of the equipment. During the
public hearing on August 9, 1995, an individual stated that the cost to
retrofit would be between $10,000 and $75,000 and impact 100 tugboats
and 40 to 75 barges (a total of 140 to 175 vessels). Employing the
numbers
[[Page 63943]]
provided by the industry representative, the most expensive estimates
would result in costs of approximately $13 million to the industry.
This dollar amount is well below the $100 million annual cost ceiling
imposed by Congress in the Unfunded Mandates Reform Act of 1995, which
amount can be used as a guide in determining what is, in the view of
Congress, a substantial cost.
Comment 5: One person commented that the second alternative
outlined in the proposed rulemaking is for vessels with a Type II MSD
to simply treat and discharge the sewage outside the no discharge zone.
She stated that the fact that EPA and DEC are suggesting that vessels
discharge outside the proposed sixty-eight mile no discharge zone is
disingenuous.
Response 5: Vessels which discharge treated sewage outside of the
drinking water intakes zones are in compliance with the regulation.
This rule, promulgated to protect specific drinking water intakes,
regulates discharges inside the delineated zones as a means of
protecting these intakes and does not attempt to control the discharge
or prohibit the discharge of treated sewage outside the zones.
Comment 6: One individual speculated that the entire Hudson River
would soon be designated as a no discharge zone. She made this
speculation because based on her information and belief, the southern
segment of Zone 2, from Esopus Island to Chelsea, New York also has
drinking water intake valves with the cumulative capacity of 127
millions gallons per day.
Response 6: To date, no other applications have been made by NYSDEC
or discussed with EPA. EPA will act on the facts before it and will not
act on mere speculation.
With regard to the Chelsea water intake, that intake is included in
Zone 2, which 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). 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
vicinity of Chelsea, New York.
Comment 7: An individual questioned the beneficial results of
designated no discharge zones if the Hudson River continues to be
contaminated by combined sewer outfalls and storm water run-off.
Response 7: The prohibition of the discharge of vessel sewage from
MSDs is not the only NYSDEC program to protect the drinking water
sources of several communities and to improve the water quality in the
Hudson River. There are programs in place to reduce and better manage
the discharge of storm water and non-point pollution. Combined sewer
overflows are regulated through the NYSDEC State Pollutant Discharge
Elimination System permitting program. This final rule is in addition
to programs already in place and will serve to enhance the Hudson River
water quality.
Comment 8: Another individual representing a shipping operations
for a major petroleum company provided a letter that reiterated the
comments submitted by the association representing the tow boat
industry. See comments and responses 1 through 7.
Comment 9: An individual entered an oral statement into the record
at the public hearing held on August 10, 1995. This individual
expressed his support of the regulation. He also stated that EPA should
consider regulations which parallel the Lake Champlain regulations
which require that all vessels with a marine toilet on-board must be
equipped with a holding tank.
Response 9: EPA acknowledges this support for the proposal. With
regard to mandating installation of holding tanks, EPA does not have
the authority to prescribe the method of compliance with the rule. EPA
expects to address operational procedures in the implementation plan
which is to be developed following promulgation.
Comment 10: This individual also named four Class A water segments
(a 30-mile stretch in the Mohawk River, the Seneca River, Cayuga Lake
and Seneca Lake) as classified by NYSDEC which are navigable and not
among the waters which are no discharge zones. These are waters which
he feels need to be designated as no discharge zones. He recognized
that EPA could not act on this suggestion unless NYSDEC applied for
such designation.
Response 10: No response needed.
Comment 11: Another individual commented during the public hearing
on August 10, 1995 that he wondered what part of the Mohawk River
served as the southern boundary of Zone 1. He recommended that the
Green Island-Troy dam be designated as the landmark for the southern
boundary. He also stated his support for the regulation.
Response 11: EPA concurs that the description in the proposed rule
is ambiguous and needs clarification. The final rule will clarify that
the southern border of Zone 1 is the northernmost confluence of the
Mohawk River with the Hudson River; the Troy-Waterford Bridge (126th
Street Bridge) will serve as the line delineating the southern boundary
of Zone 1. The confluence is not a landmark which is readily apparent
to a vessel operator on the water. The Troy-Waterford Bridge (126th
Street Bridge) will serve as a landmark which is easily recognized by
an operator on the water. EPA considers this clarification to be a
minor modification which results in the boundary line being moved
approximately 3-4 city blocks to the north of the original boundary.
Upon reevaluation of all the boundary delineations, EPA discovered that
the description of the southern boundary to Zone 2 may not be easily
understood by the public. The final regulation will add the phrase ``in
the vicinity of Chelsea.''
Comment 12: A citizens group through its representative stated its
support for the regulation in a letter dated August 25, 1995.
Response 12: EPA acknowledges this support for this proposal.
Comment 13: Another representative of a citizens group provided a
comment on September 27, 1995, after the public comment period closed.
The comment stated support for the proposed rule.
Response 13: No response required.
III. 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. 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 action will have any effect on any
small entity. An
[[Page 63944]]
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 final rule. In summary,
the 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 rule, therefore,
will not change the legal requirements for boats with Type III devices.
Consequently, the only small entities affected by this 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 rule will affect these vessels by requiring retention and
pump-out of their sewage, or discharge outside of the designated zones.
This rule requires no reporting or record keeping activity on the part
of small entities. Because of the cost associated with purchase of
portable Type III devices and use of pump-out facilities, and the
option to discharge sewage in accordance with Federal standards outside
of the zones, this final rule imposes no significant economic impact on
a substantial number of small entities.
As mentioned above, NYSDEC submitted the application for these
Drinking Water Intake Zones under Section 312(f) 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 wishes to
correct its interpretation of CWA section 312(f)(4)(B), as stated in
the preamble of the proposed rule at 60 FR 34942. EPA interprets CWA
Section 312(f)(4)(B) to give EPA discretion upon application by a state
to establish a drinking water intake zone, both with respect to the
timing of EPA action on such an application and the substance of such
action. There is no mandatory duty for EPA to act upon such an
application, as the CWA specifies no date certain for such action.
Further, EPA interprets the requirement for states to apply to EPA for
the flexibility to promulgate a drinking water intake zone different
from that applied for, if EPA believes that a different zone is
warranted.
C. Paperwork Reduction Act
The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is intended to
minimize the reporting and record keeping 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 record keeping 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 record keeping 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 rule. Those vessels affected by this rule will either
retain and pump out treated sewage or discharge outside of the
designated zones. It is therefore estimated that the annualized costs
to State, local and
[[Page 63945]]
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 sewage or discharge outside of the designated
zones.
List of Subjects in 40 CFR Part 140
Environmental protection, Sewage disposal, Vessels.
Dated: December 5, 1995.
Jeanne M. Fox,
Regional Administrator.
For the reasons set out in the preamble, 40 CFR Part 140 is 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
is bounded by an east-west line through the most northern confluence of
the Mohawk River which will be designated by the Troy-Waterford Bridge
(126th Street Bridge) on the south and Lock 2 on the north, 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 in the
vicinity of Chelsea, as described in Items 2 and 3 of 6 NYCRR Part
858.4.
[FR Doc. 95-30406 Filed 12-12-95; 8:45 am]
BILLING CODE 6560-50-P
