[Federal Register Volume 63, Number 108 (Friday, June 5, 1998)]
[Notices]
[Pages 30742-30744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15017]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-6108-3]


New Jersey State Prohibition on Marine Discharges of Vessel 
Sewage; Final Affirmative Determination

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: Notification is hereby given that the Regional Administrator, 
Environmental Protection Agency (EPA) Region II has affirmatively 
determined, pursuant to section 312(f) of Public Law 92-500, as amended 
by Public Law 95-217 and Public Law 100-4 (the Clean Water Act), that 
adequate facilities for the safe and sanitary removal and treatment of 
sewage from all vessels are reasonably available for the waters of the 
Shark River, County of Monmouth, State of New Jersey.
    This petition was made by the New Jersey Department of 
Environmental Protection (NJDEP) in cooperation with Monmouth County 
and the Shark River Roundtable. Upon receipt of this affirmative 
determination, NJDEP will completely prohibit the discharge of sewage, 
whether treated or not, from any vessel in the Shark River in 
accordance with section 312(f)(3) of the Clean Water Act and 40 CFR 
140.4(a). Notice of the Receipt of Petition and Tentative Determination 
was published in the Federal Register on March 12, 1998. Comments on 
the tentative determination were accepted during the comment period 
which closed on April 13, 1998. Written statements were received from 
the following:

1. Mr. Lester W. Jargowsky, M.P.H., Public Health Coordinator,

[[Page 30743]]

Monmouth County Board of Health, 3435 Highway 9, Freehold, New Jersey 
07728
2. Ms. Cindy Zipf, Executive Director, Clean Ocean Action, P.O. Box 
505, Highlands, New Jersey 07732
3. Mr. Arthur J. Bretnall, Jr., President, Raritan Engineering, P.O. 
Box 1157, Millville, New Jersey 08332
4. Mr. Philip G. Conner, President, Crockett Brothers Boatyard, Inc., 
P.O. Box 369, Oxford, Maryland 21654

    The comments are summarized and responded to below:
    Two individuals expressed their support of the Shark River 
determination. Another individual stated that many organizations and 
individuals have worked hard to ensure that there are an adequate and 
convenient supply of sewerage pumpout facilities in the subject coastal 
watershed. He further commented that his organization will continue to 
educate and motivate boaters to adhere to the designation.
    EPA acknowledges the support. EPA also agrees that education is a 
key component of the compliance and enforcement effort.
    One individual stated that there is evidence that there is a need 
for better management of marine sewage. He commented that shellfish 
beds in the river continue to be closed to harvesting due to elevated 
fecal coliform counts. Through the establishment of a NDA, the local 
Board of Health will have a new management tool for vessel sewage which 
can reduce the fecal coliform loading and which may assist in the 
reopening of the shellfish beds for harvest. No revision to the 
determination is warranted based on this comment.
    Another individual stated that there is no credible reason to 
disallow the continued use of the Type I and Type II Marine Sanitation 
Devices (MSDs). He further stated that according to the National 
Shellfish Register the five principal sources of pollution are upstream 
sources, wildlife, individual waste management systems, septic tanks 
and waste treatment plants.
    In response, EPA notes that the National Shellfish Register stated 
in the Overview of Results that the top five pollution sources reported 
as contributing to harvest limitations were urban runoff, upstream 
sources, wildlife, individual wastewater treatment systems and 
wastewater treatment systems. The above commenter's listing of the top 
five pollution sources omitted urban runoff and listed septic tanks in 
addition to individual wastewater treatment systems.
    In addition, the Overview of Results in the National Shellfish 
Register regarding pollution sources cites an apparent trend. Compared 
to the 1990 Register, there is a significant decrease in the acreage 
that is harvest-limited due to contributions from industry, wastewater 
treatment plants and direct discharges. There is an increase in the 
acreage limited by boating and marinas (when added together to reflect 
the way the data were collected in the 1990 Register), urban runoff and 
agricultural runoff.
    In further response to the above comments, EPA notes that NJDEP's 
application includes a certification that the protection and 
enhancement of the Shark River requires greater environmental 
protection than the applicable federal standard. NJDEP presented data 
which indicate that fecal coliforms exceed the bathing beach and 
shellfish special restricted classification criteria. In 1994, NJDEP 
classified the shellfish waters of the Shark River impaired and only 
partially supported shellfish harvesting. Runoff from extensive 
residential and commercial development, marina and boating activity, 
and agriculture have been implicated as sources of bacterial loading. 
EPA has accepted NJDEP's certification and EPA concludes that no 
revision to the determination is warranted.
    One individual criticized the method used to calculate the number 
of pumpouts for the vessel population. He stated that no allowance was 
made for vessels of length 26 feet and under with toilets. He commented 
that the assumption used in NJDEP's application that only 50% of the 
boats between 26 feet and 40 feet length were equipped with toilets was 
low based on his experience. He also stated that the assumed peak 
occupancy rate of 45% was low. During the busiest part of the boating 
season, the percentage of boats in use would be much higher. Due to 
these assumptions, he stated the application underestimated the need 
for pumpouts.
    The vessel populations were based on the vessels docked at marinas 
and yacht clubs, vessels docked at non-marina facilities and transient 
vessels. The number of pumpouts needed in the Shark River NDA were 
calculated using two different methodologies. Both are based on the 
probability of a vessel being equipped with a holding tank, not a 
toilet, and an acceptable boat to pumpout ratio. The first method is 
based on the New Jersey Clean Vessel Act Steering Committee's 
recommendation that one pumpout be provided for every 200 to 300 
vessels. The second method was developed by the U.S. Department of 
Interior Fish and Wildlife Service. The percent of vessels with holding 
tanks is based on surveys conducted by the Fish and Wildlife Service 
and available data for vessels using the Shark River. EPA finds the 
estimates to be based on accepted methodologies and the best 
information available. No revision to the determination is needed.
    One individual stated that there was no need for the establishment 
of an NDA in the Shark River. He indicated that enforcement of the 
current regulation, 40 CFR 140.3, which prohibits discharge of 
untreated sewage is the ``key element to the issue.'' He further stated 
that the prohibition of the discharge of untreated sewage from vessels 
has never been adequately enforced. In response, EPA notes that the New 
Jersey Attorney General's Office and the New Jersey Marine Police have 
issued numerous citations when the discharge of raw sewage has been 
observed. One violator was criminally prosecuted and received 5 years 
probation, a $30,000 fine and 200 hours of community service. New 
Jersey has enforced current regulations, but as certified in the 
application, greater environmental protection is needed. No revision to 
the determination is warranted.
    Another individual stated that the only effect the establishment of 
a NDA will have would be to outlaw the use of Type I and Type II MSDs.
    The intent of the Shark River NDA is not to outlaw any type of 
MSDs, but to prohibit the discharge of sewage, whether treated or 
untreated, from a vessel until the vessel has left the Shark River. 
Once a vessel has exited the Inlet and is in the Atlantic Ocean, the 
discharge from a Type I or Type II MSD is allowed. Discharge of 
untreated sewage is prohibited from a vessel at all times while 
operating in U.S. waters. No revision to the determination is 
warranted.
    Another individual stated that the intent of Congress when it 
passed the Federal Water Pollution Control Act of 1976 (referred to as 
the current MSD law) was to assure uniformity as vessels engaged in 
interstate commerce. He further stated that granting exceptions 
compromises the existing uniformity.
    The federal MSD standards were set to provide a uniform standard 
for all vessels, regardless of area operation, in regards to protecting 
waters of the U.S. Congress also recognized that States, when further 
environmental protection was warranted, should be allowed to

[[Page 30744]]

completely prohibit the discharge from all vessels of any sewage, 
whether treated or not, into some or all of the waters within a State 
by applying to EPA for such a prohibition. The State of New Jersey is 
exercising that option provided by Congress through section 312(f)(3) 
of the Clean Water Act. No revision to the determination is warranted 
based on the comment.
    Two people commented that forcing boaters into a position that 
requires holding tanks with no other option is dangerous to the boating 
public. These comments addressed the risk of transmitting disease when 
handling untreated waste. One person further stated that people have 
been overcome and died due to the generation and the escaping of 
hydrogen sulfide gas from a holding tank. He stated that the 
application does not address this. Another person stated that methane 
gas may build up in the holding tanks and explode.
    The establishment of a Shark River NDA does not require vessel 
owners to retrofit their MSDs. The comment regarding the generation of 
hydrogen sulfide gas and escape from a holding tank, is not relevant to 
the adequacy of the application submitted by NJDEP. MSDs are certified 
by the U.S. Coast Guard in regard to safety and performance. Any 
questions regarding the safety of any certified MSD should be brought 
to the attention of the U.S. Coast Guard since it is the certifying 
agency. No revision to the determination is warranted based on the 
comment.
    One individual commented that the establishment of an NDA, in and 
of itself, does not prevent the discharge of raw sewage.
    The discharge of raw sewage is currently prohibited by law. 
Establishment of a NDA prohibits the discharge of sewage, whether 
treated or untreated, from vessels. Compliance with the prohibition is 
dependent on the attitude of the boating population. A major component 
of a compliance program is the education of the regulated community and 
the impacts of noncompliance. No revision to the determination is 
warranted based on the comment.
    One person stated that Type I and Type II MSDs treat the pathogens 
in sewage as effectively, if not better than, municipal sewer plants. 
In comparing Type I and Type II systems to sewage treatment plants, he 
stated that a MSD achieves coliform results that are virtually zero and 
BOD percent reductions of over 70%.
    The treatment plants that handle the sewage from the pumpouts are 
reporting Fecal Coliform counts of less than 10 colonies per 100 ml. 
and achieve BOD percent removal of greater than 90%. Samples of the 
effluent are taken at least twice per week to monitor the discharge. 
Based on these removals, EPA believes the performance of the treatment 
works is better than MSDs. The municipal authorities are required by 
New Jersey Pollutant Discharge Elimination System (NJPDES) permits to 
properly operate and maintain the treatment plant and to report any 
noncompliance with the permit conditions. Also, the treated wastewater 
from the treatment plant is discharged to the Atlantic Ocean, not the 
Shark River. MSDs are certified on a one time basis and after 
installation are rarely, if ever, checked to see if they are operating 
properly. They are never recertified. No revision to the determination 
is warranted based on the comment.
    One individual commented that the federal MSD laws are obsolete and 
that the standards should be modified immediately. While this comment 
is not relevant to the determination or the factual content of the 
application, modification of the regulation cannot be initiated by the 
State or EPA Region II. 40 CFR 140 was recently modified to clarify the 
application requirements to establish NDAs for drinking water intakes 
zones. It is unlikely that this regulation will be evaluated for 
modification in the near future. No revision to the determination is 
warranted.
    The remainder of this Notice summarizes the location of the NDA, 
the available pumpout facilities and related information. The Shark 
River is located in central New Jersey and runs southeasterly through 
Monmouth County for more than 23 miles before emptying into the 
Atlantic Ocean at the Shark Inlet. The Shark River, located in central 
New Jersey, has its headwaters in Tinton Falls and flows into its 
estuary of approximately 810 acres. The estuary is surrounded by the 
towns of Avon-by-the-Sea, the Borough of Belmar, Neptune City, Neptune 
Township and Wall Township. The river empties into the Atlantic Ocean 
via the Shark River Inlet. The Shark River drains a watershed area of 
23 square miles. The NDA will include all navigable waters in the Shark 
River beginning at the Shark River Inlet.
    Information submitted by the State of New Jersey, the Monmouth 
County, and the Shark River Roundtable stated that there are two 
existing pumpout facilities available and two portable toilet dump 
stations to service vessels which use the Shark River. A detailed 
description of the available facilities was published in the Tentative 
Affirmative Determination in the Federal Register on March 12, 1998. 
The location of the facilities are as follows:

1. Belmar Municipal Marine Basin (stationary pumpout and dump station), 
900 Marine Avenue, Belmar, New Jersey
2. Main One Marina (stationary pumpout and a portable toilet dump 
station), 1 Main Street, Avon, New Jersey

    Vessel waste generated from the pump-out facilities in Wall 
Township and the Borough of Belmar is conveyed to the South Monmouth 
Regional Sewage Authority (NJPDES Permit No. NJ0024520). Vessel waste 
generated from the pump-out facilities in Avon, Neptune City and 
Neptune Township is conveyed to the Neptune Township Sewage Authority 
(NJPDES Permit No. NJ0024872). These plants operate under permits 
issued by the New Jersey Department of Environmental Protection.
    According to the State's petition, the maximum daily vessel 
population for the Shark River is approximately 1183 vessels. This 
estimate is based on (1) vessels docked at marinas and yacht clubs (882 
vessels), (2) vessels docked at non-marina facilities (129 vessels) and 
(3) transient vessels (172 vessels). The vessel population based on 
length is 872 vessels less than 26 feet in length, 263 vessels between 
26 feet and 40 feet in length and 48 vessels greater than 40 feet in 
length. Based on number and size of boats, and using various methods to 
estimate the number of holding tanks, it is estimated that 1 to 2 
pumpouts are needed for the Shark River.
    The EPA hereby makes a final affirmative determination that 
adequate facilities for the safe and sanitary removal and treatment of 
sewage from all vessels are reasonably available for the Shark River in 
the County of Monmouth, New Jersey. This final determination on this 
matter will result in a New Jersey State prohibition of any sewage 
discharges from vessels in the Shark River.

    Dated: May 26, 1998.
Jeanne M. Fox,
Regional Administrator.
[FR Doc. 98-15017 Filed 6-4-98; 8:45 am]
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