[Federal Register Volume 76, Number 242 (Friday, December 16, 2011)]
[Notices]
[Pages 78253-78256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32276]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[FRL-9508-1]


New York State Prohibition of Discharges of Vessel Sewage; Final 
Affirmative Determination

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Determination.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that, pursuant to Clean Water Act, 
Section 312(f)(3) (33 U.S.C. 1322(f)(3)), the State of New York has 
determined that the protection and enhancement of the quality of the 
New York State portions of Lake Ontario requires greater environmental 
protection and has petitioned the United States Environmental 
Protection Agency (EPA), Region 2, for a determination that adequate 
facilities for the safe and sanitary removal and treatment of sewage 
from all vessels are reasonably available for those waters, so that the 
State may completely prohibit the discharge from all vessels of any 
sewage, whether treated or not, into such waters.
    The New York State Department of Environmental Conservation 
(NYSDEC) has proposed to establish a Vessel Waste No Discharge Zone 
(NDZ) for the New York State portion of Lake Ontario (``Lake'') 
including the waters of the Lake within the New York State boundary, 
stretching from the Niagara River (including the Niagara River up to 
Niagara Falls) in the west, to Tibbetts Point at the Lake's outlet to 
the Saint Lawrence River in the east. The proposed No Discharge Zone 
encompasses approximately 3,675 square miles and 326 linear shoreline 
miles, including the navigable portions of the Lower Genesee, Oswego, 
and Black Rivers; numerous other tributaries, harbors, and embayments 
of the Lake including Irondequoit Bay, Sodus Bay, North/South Ponds, 
Henderson Bay, Black River Bay and Chautmont Bay; and an abundance of 
formally designated habitats and waterways of local, state, and 
national significance. NYSDEC certified the need for greater protection 
of the water quality. 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 Lake Ontario.
    EPA published a tentative affirmative determination on October 5, 
2011 in the Federal Register. Public comments were solicited for 30 
days and the comment period ended on November 4, 2011. EPA received a 
total of eight (8) comments via letter and email. The comment tally was 
seven (6) in favor of, and two (2) questioning or opposing the No 
Discharge Zone designation. All the relevant comments received have 
been considered in the final affirmative determination. This Federal 
Register document addresses comments submitted in response to the 
October 5, 2011 (Volume 76 No. 193) Federal Register document.

Response to Comments

    1. Comment: Several commenters, including boaters, paddlers and 
community advocates, expressed strong support for EPA's action to 
establish a vessel waste no discharge zone for Lake Ontario. Some 
commenters pointed out that this action will reduce pathogens and 
chemicals, improve water quality and further protect and restore the 
Lake.
    EPA Response: EPA is in full agreement that designating Lake 
Ontario is an important step to further protect this valuable natural 
resource, water quality, wetlands and habitats throughout the U.S. 
portions of Lake Ontario.
    2. Comment: One commenter stated that discharges from boats are a 
relatively small source of pollution compared to the pollution caused 
by farm runoff into the Lake.
    EPA Response: These comments go beyond the scope of EPA's authority 
in this action. EPA's authority here is limited to determining whether 
adequate pumpout facilities exist. Establishing a no discharge zone for 
vessel sewage will have a positive effect on water quality in the Lake.
    3. Comment: One commenter expressed concerns about the conditions 
and availability of the pumpout facilities at Sodus Point in Lake 
Ontario.
    EPA Response: The criterion established by the Clean Vessel Act 
regarding the adequate number of pumpouts per vessel population is one 
pumpout per 300 to 600 vessels. NYSDEC has submitted pumpout 
information (including location, phone numbers, latitude/longitude, VHF 
channel, dates and hours of operation, fees, and capacity) outlining 
how areas of the Lake meet or exceed this criterion; therefore, EPA has 
determined that there are adequate pumpout facilities. EPA recognizes 
the importance of adequate pumpouts to service the boating activity 
within a given waterbody. New York State is responsible for ensuring 
that all of the facilities are accessible and operational. There are 
six pumpouts (Pultneyville Yacht Club, Sodus Bay Yacht Club, Krenzer 
Marine, Inc., Arney's Marina,

[[Page 78254]]

Inc., Anchor Resort and Marina, and Bayside Marina) available in the 
vicinity of Sodus Bay in Wayne County. Therefore, in the event that a 
particular facility is not accessible or operational, the public should 
contact NYSDEC.
    4. Comment: One commenter stated that the pumpout facilities that 
serve recreational vessels may not be reasonably available to 
commercial tugboat, towboats and barges that service the area because 
some of those commercial vessels are too large to dock where the 
recreational vessel pumpout facilities are located. The commenter also 
indicated that in order to comply with the NDZ requirements, a tugboat 
or towboat must disable federally compliant marine sanitation devices 
and install holding tanks for effluent. Such retrofitting is 
complicated due to the extremely limited space aboard a towing vessel 
and the necessity to ensure that the additional weight does not 
negatively impact the stability of the vessel.
    EPA Response: EPA understands that some commercial vessels may not 
be able to use pumpouts designed for recreational vessels, and found 
that ``honey dipper'' pumpout trucks are readily available for hire and 
are able to reach commercial vessels on the commercial docks on the 
Lake. In order to achieve the storage capacity needed to hold sewage on 
board, a Type II Marine Sanitation Device (MSD) can be converted to a 
Type III MSD, commonly called a holding tank, which can be equipped 
with the valve, usually called a Y-valve, needed to discharge to a 
pumpout truck.
    5. One commenter suggested that EPA provide a suitable lag time 
between when an NDZ is established and when compliance is required to 
improve compliance and ease the heavy financial burden on commercial 
vessel owners. According to this commenter, the current model of 
instant implementation without a phase-in period does not allow vessel 
owners to make the necessary changes in a planned and cost-effective 
fashion.
    EPA Response: EPA's authority here is limited to determining 
whether adequate pumpout facilities exist, it cannot base its 
determination on the cost of compliance and, once EPA issues a final 
affirmative determination, it is up to the petitioning state, in this 
case, New York, to determine how to implement and enforce the NDZ.

FOR FURTHER INFORMATION CONTACT: Moses Chang, (212) 637-3867, email 
address: [email protected]. The EPA Region 2 NDZ Web site is: http://www.epa.gov/region02/water/ndz/index.html. A copy of the State's NDZ 
petition can be found there.

SUPPLEMENTARY INFORMATION: Notice is hereby given that the State of New 
York (NYS or State) has petitioned the United States Environmental 
Protection Agency, Region 2, pursuant to section 312(f)(3) of Public 
Law 92-500 as amended by Public Law 95-217 and Public Law 100-4, that 
adequate facilities for the safe and sanitary removal and treatment of 
sewage from all vessels are reasonably available for the NYS portion of 
Lake Ontario. Adequate pumpout facilities are defined as one pumpout 
station for every 300 to 600 boats pursuant to the Clean Vessel Act: 
Pumpout Station and Dump Station Technical Guidelines (Federal 
Register, Vol. 59, No. 47, March 10, 1994).
    As one of the nation's premier waterbodies, the open waters, 
harbors, embayments, creeks and wetlands of Lake Ontario support a 
remarkable diversity of uses--fish spawning areas, breeding grounds, 
valuable habitats, commercial and recreational boating, and a profusion 
of recreational resources. The Lake serves as an economic engine for 
the region and a place of great natural beauty, heavily used and 
enjoyed by the citizens of the many lakeshore communities and 
throughout the Lake Ontario Watershed, which encompasses about one-
quarter of New York State. It is also a source of drinking water for 
760,000 people. NYSDEC developed their petition in collaboration with 
the New York State Department of State (DOS) and the New York State 
Environmental Facilities Corporation (EFC) in order to establish a 
vessel waste No Discharge Zone (NDZ) on the open waters, tributaries, 
harbors and embayments of New York State's portion of Lake Ontario.
    The Clean Vessel Act requires that one pumpout station be available 
for every 300 to 600 boats in order to support an NDZ determination. 
Accordingly, for EPA to determine that adequate facilities for the safe 
and sanitary removal and treatment of sewage from all vessels are 
reasonably available for the New York State portion of Lake Ontario, 
the State must demonstrate that the pumpout-to-vessel ratio meets the 
requirement. In its petition, the State described the recreational and 
commercial vessels that use Lake Ontario, and the pumpout facilities 
that are available for their use.
    Based on recreational boater registrations obtained through the New 
York State Office of Parks, Recreation and Historic Preservation's 2009 
Boating Report for the counties of Niagara, Orleans, Monroe, Wayne, 
Cayuga, Oswego and Jefferson (all of which have shoreline on Lake 
Ontario), a general estimate places the recreational vessel population 
at 10,050.
    There are 28 pumpout facilities funded by the Clean Vessel 
Assistance Program (CVAP) in the relevant areas of the Lake. There are 
also nine other (non-CVAP funded) pumpouts available for recreational 
and small commercial vessels for a total of 37 facilities. These 
facilities either discharge to a holding tank, to a municipal 
wastewater treatment plant or to an on-site septic system. With 37 
pumpouts available for the 10,050 recreational and small commercial 
vessels that use the lake, the pumpout-to-vessel ratio for those 
vessels is 1:272 (37:10,050). Because EPA did not have sufficient 
information for seven of the nine non-CVAP funded pumpout facilities in 
NYSDEC's petition, we also evaluated the vessel to pumpout ratio using 
a more conservative total of 30 pumpout facilities for 10,050 boats 
yielding a 1:335 pumpout per vessel ratio. (Note: These are the 30 
pumpout facilities identified in the table below.) Based on NYS 2009 
boater registrations, the pumpout facility ratios for each individual 
county are as follows: Orleans (1:138), Jefferson (1:193), Niagara 
(1:223), Oswego (1:231), Wayne (1:234), Cayuga (1:252), and Monroe 
(1:449). Therefore, adequate pumpout facilities for the safe and 
sanitary removal and treatment of sewage for recreational vessels are 
reasonably available for the New York portions of the Lake as a whole 
and for each county along the Lake Ontario shore line.
    In addition, Lake Ontario is used by commercial vessels. Commercial 
vessel populations were estimated using data from the National Ballast 
Information Clearinghouse (NBIC), which records ballast water discharge 
reports for arriving ships, and interviews with administrators involved 
with the two main commercial ports on Lake Ontario, Oswego and 
Rochester.
    In the calendar year 2010, ballast manifests showed 73 vessel 
arrivals at the Port of Oswego, 43 of these ships were bulkers carrying 
a wide array of goods, such as petroleum, aluminum and salt. The other 
30 ships consist of passenger ships, tugs and barges. During the 2010 
survey, ballast manifests showed 24 commercial vessels arriving at the 
Port of Rochester, one passenger ship and 23 bulkers. As with the Port 
of Oswego, all other commercial vessels in the Port of Rochester are 
transient. Summing these sources, an upper bound estimate of commercial 
boat traffic in Lake Ontario using New York ports is approximately 150 
vessels a

[[Page 78255]]

year, less than one every other day. Although there are no fixed 
commercial vessel pumpouts at the Ports of Oswego or Rochester, mobile 
pumpout services are available for hire. The Port of Rochester reported 
that ``honey dipper'' trucks have come in to pumpout commercial vessels 
on occasion while they are docked in the Port. The Port of Rochester 
supplies all commercial vessels with the names of pumpout trucks (as 
well as other services, such as solid waste handlers) at the time they 
receive their permits to dock at the terminal. Therefore, it appears 
that there are adequate pumpout facilities to serve the commercial 
vessels in Lake Ontario.
    Based on the above information which supports that adequate 
facilities for the safe and sanitary removal and treatment of sewage 
from all vessels are reasonably available for Lake Ontario, the State 
may completely prohibit the discharge from all vessels of any sewage, 
whether treated or not, into such waters.
    A list of the pumpout facilities, phone numbers, locations, hours 
of operation, water depth and fees is provided as follows:

                                                 List of Pumpouts in the Lake Ontario NDZ Proposed Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                 Days and hours of    Water depth
     Numbers                Name                 Location             Contact information            operation           (feet)             Fee
--------------------------------------------------------------------------------------------------------------------------------------------------------
1................  Youngstown Yacht Club  Lower Niagara River..                  716-754-8245  Apr-Nov, Mon-Fri, 9         9'-12'  $5.00.
                                                                                                a.m.-5 p.m.
2................  NYSOPRSHP-Wilson-      Tuscarora Bay........                  716-278-1775  24 hours.............           5'  $5.00.
                    Tuscarora SP Marina.
3................  Tuscarora Yacht Club.  Tuscarora Bay........                  716-434-4475  9 a.m.-5 p.m.........           7'  $5.00.
4................  Rochester Yacht Club.  Genesee River/Lake        585-342-5511/585-314-6460  Mon-Sun, 7 a.m.-10              9'  Free Members/$10.00-
                                           Ontario.                                             p.m.                                Guest.
5................  City of Rochester-     Genesee River-Canal                    716-428-7045  Jan-Dec, 24 hours....        4'-6'  0.00.
                    River Street           North to 490 Dam.
                    Waterfront.
6................  County of Monroe-      Irondequoit Bay......                  716-428-5301  Apr-Oct, 7 a.m.-7 p.m           8'  $5.00.
                    Irondequoit Bay NYS
                    Marine.
7................  Four C'S Marina at     Oak Orchard Creek....                  585-682-4224  6 a.m.-7 p.m.........          10'  $5.00.
                    Oak Orchard Creek.
8................  Eagle Creek Marina...  Oak Orchard Creek....                  585-723-5708  8 a.m.-5 p.m.........        8'-9'  $5.00.
9................  Braddock Marina......  Braddock Bay.........                  585-227-1579  10 a.m.-4 p.m........           2'  $8.00.
10...............  Newport Marina, Inc..  Irondequoit Bay......                  585-544-4950  Mar-Dec, 9 a.m.-6 p.m           6'  $10.00.
11...............  Sutter's Marine, Inc.  Irondequoit Bay......                  716-217-8811  Apr-Nov, Mon-Fri,               7'  $5.00.
                                                                                                6:30 a.m.-5:00 p.m.
12...............  Pultneyville Yacht     Pultneyville.........                  315-524-2762  Apr-Sep, 24 hours....           6'  $5.00.
                    Club.
13...............  Sodus Bay Yacht Club.  Pultneyville.........                  315-483-9550  Apr-Sep, 24 hours....           6'  $5.00.
14...............  Krenzer Marine, Inc..  Sodus Bay............                  315-483-8808  Apr-Nov, 8 a.m.-5 p.m        3'-6'  0.00.
15...............  Arney's Marina, Inc..  Sodus Bay............                  315-483-9111  Apr-Oct, 9 a.m.-5 p.m           7'  $5.00.
16...............  Anchor Resort and      Little Sodus Bay.....                  315-947-5331  Apr-Sep, 6 a.m.-6 p.m       8'-10'  $5.00.
                    Marina.
17...............  Bayside Marina.......  Little Sodus Bay.....                  315-947-5773  Apr-Oct, 24 hours....           8'  $5.00.
18...............  Port of Oswego-        (Erie) Oneida Shore                    315-343-4503  Apr-Nov, 7 a.m.-9 p.m          15'  $5.00.
                    International Marina   Park Terminal-Three
                    West.                  Rivers Port Terminal.
19...............  Port of Oswego-East    Three Rivers Point                     315-343-4503  Apr-Nov, 7 a.m.-9 p.m          18'  $5.00.
                    Marina.                Terminal--Lock 8
                                           (Wright's Landing).
20...............  Mexico Bay Co........  Mexico Bay--Little                     315-963-3221  Daylight Hours.......  ...........  0.00.
                                           Salmon River.
21...............  Wigwam Marina........  North Pond...........                  315-387-3001  12 p.m.-4 p.m........           8'  0.00.
22...............  Seber Shores Marina..  North Pond...........                  315-387-5502  May-Nov, 9 a.m.-5 p.m           8'  $5.00.

[[Page 78256]]

 
23...............  Harbor's End, Inc....  Henderson Bay and                      315-938-5425  Apr-Nov, 8 a.m.-4:30          4.5'  $5.00.
                                           Harbor.                                              p.m.
24...............  Henchen Marina.......  Henderson Bay and                      315-938-5313  Apr-Oct, 7 a.m.-8 p.m           8'  $10.00.
                                           Harbor.
25...............  Harbor View Marina,    Henderson Bay and                      315-938-5494  May-Oct, 8 a.m.-5 p.m  ...........  0.00.
                    Inc.                   Harbor.
26...............  Grunerts Marina......  Black River Bay......                  315-646-2003  .....................  ...........  0.00.
27...............  Navy Point Marina....  Black River Bay......                  315-646-3364  May-Nov, 8 a.m.-5 p.m          10'  0.00.
28...............  Madison Barracks.....  Black River Bay......                  315-646-3374  May 15-Oct 15, 8 a.m.-         10'  0.00.
                                                                                                6 p.m.
29...............  Kitto's Marina.......  Chaumont Bay.........                  315-788-2191  Apr-Oct, 8 a.m.-7 p.m           7'  0.00.
30...............  Chaumont Club........  Black River Bay......                  315-649-5018  Apr 15 -Nov, 7 a.m.-5      6.5'-7'  0.00.
                                                                                                p.m.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Based on the information above, EPA hereby makes a final 
affirmative determination that adequate facilities for the safe and 
sanitary removal and treatment of sewage from all vessels are available 
for the waters of the New York State portion of Lake Ontario.

Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2011-32276 Filed 12-15-11; 8:45 am]
BILLING CODE 6560-50-P