[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: [email protected].

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