Ship pumping ballast water.
Photograph Attribution: US Coast Guard, Public domain, via Wikimedia Commons
COASTAL ZONE MANAGEMENT ACT NATIONAL CONSISTENCY DETERMINATION FOR THE EPA VESSEL INCIDENTAL DISCHARGE ACT PROPOSED NATIONAL STANDARDS OF PERFORMANCE
COMMENT AND RESPONSE DOCUMENT
JANUARY 5, 2021
Pennsylvania Department of Environmental Protection Coastal Resources Management Program
INTRODUCTION
The Pennsylvania Department of Environmental Protection (DEP or the Department) published notice in the Pennsylvania Bulletin on December 19, 2020 (50 Pa.B. 7248) of a federal consistency review for the United States Environmental Protection Agency’s (EPA’s) proposed rule entitled, “Vessel Incidental Discharge National Standards of Performance”. 85 Fed. Reg. 67818; October 26, 2020. A 15-day comment period was provided, and interested parties were directed to submit comments to DEP’s eComment system. The comment period ended on January 4, 2021. DEP received comments and questions from one commenter during the comment period. The purpose of this document is to present DEP’s responses to the comments received.
LIST OF COMMENTERS
1. Nelly Montanez
Environmental Reviewer, Inc.
1792 Rogers Avenue
San Jose, CA 95112
This email address is being protected from spambots. You need JavaScript enabled to view it.
COMMENTS AND RESPONSES
1. Comment:
Please make sure the relevant documents for review are uploaded to the Pennsylvania Department of Environmental Protection (DEP) eComment webpage to foster community involvement. In this case, the links to the proposed rule and to the Pennsylvania Coastal Resources Management Program (CRMP), were not provided. We recommend that the pertinent information should be readily available with the comment period public notice. (1)
Response:
DEP appreciates and shares the commenter’s interest in public participation. The documents referenced by the commenter were publicly accessible. DEP’s eComment website included a link to the EPA Commercial Vessel Discharge Standards webpage, which contains links to the relevant documents, including the relevant federal statute and EPA’s proposed rulemaking published in the Federal Register. DEP’s notice in the Pennsylvania Bulletin also included the Federal Register citation for EPA’s proposed rulemaking and reference to the Coastal Zone Management Act and National Oceanic and Atmospheric Administration (NOAA) regulations. Links and references to the materials submitted to DEP by EPA in the national consistency determination were not provided because they are not available online. However, DEP provided the contact details in the Pennsylvania Bulletin notice for the DEP representative from whom these materials could be obtained.
2. Comment:
EPA’s proposed rule, supporting documentation, and the Pennsylvania CRM documents are both several hundred pages long and create a challenge to review and submit public comments for in such a limited time period. In order to foster community involvement, please extend the Public Comment period for an additional 30 or more days to allow me and the general public more time to conduct a thorough review and provide feedback of the documents. (1)
Response:
DEP appreciates the concern regarding limited timeframes for public review and participation. Under 15 CFR § 930.42(b) “…A public comment period shall be provided by the State sufficient to give the public an opportunity to develop and provide comments on whether the project is consistent with management program enforceable policies and still allow the State agency to issue its concurrence or objection within the 60 day State response period.” During the development of the Pennsylvania Coastal Resources Management Program (CRMP), and subsequent NOAA approval, it was determined that 15 days is the optimum pubic participation period to allow for the development of substantive comments, while also allowing CRMP time to consider those comments in federal consistency reviews and to develop responses before the expiration of the 60- day review period; please see the CRMP guidance document (394-0300-001, page 102) for further details. DEP also notes that federal agencies conduct their own independent public participation processes on proposed actions, and that public participation during the federal process is open to all aspects of the proposed action, not limited only to state enforceable policy reviews under the Coastal Zone Management Act (CZMA) 15 CFR Part 930 federal consistency regulations.
3. Comment:
According to the CRM, for all federal agency activities that may impact the coast, the federal agency must determine consistency with the coastal management program. Does the DEP have cause to believe that the proposed rule will impact Pennsylvania’s coastal area? Additionally, did the EPA submit its consistency determination to the DEP? (1)
Response:
EPA developed and submitted a national consistency determination under 15 CFR § 930.36(e)(1) to all state and territorial coastal programs, within which EPA has declared that the proposed rule has de minimis effects under § 930.33(a)(3)(i) and is consistent to the maximum extent practicable under § 930.32. DEP received EPA’s national consistency determination for the proposed rule on November 4, 2020. DEP has thoroughly reviewed the coastal effects, the relevant NOAA approved enforceable policies of the CRMP, and is objecting to the proposed rulemaking and to EPA’s de minimus declaration. The details of DEP’s objections are described in the Record of Decision (ROD) document for this national consistency determination.
4. Comment:
Commercial fishing vessels and other non-recreational vessels less than 79 feet in length are currently covered under the 2013 Vessel General Permit (VGP) or EPA’s small VGP (sVGP). Per the proposed Vessel Incidental Discharge National Standards of Performance, vessels less than 79 feet in length are exempt. However, the rule applies to any discharge of ballast water. The document failed to present statistics on the effective impact of the proposed rule. We suggest that the State of Pennsylvania provide information on these impacts (e.g., add a table showing how many vessels are currently regulated and provide information as to the number of vessels that will be both impacted and left unregulated by the proposed rule). (1)
Response:
While the 2013 VGP was extended until EPA and the United States Coast Guard (USCG) promulgate final regulations under the Vessel Incidental Discharge Act of 2018 (VIDA), the 2014 sVGP was repealed immediately upon enactment of the VIDA statute and incidental discharges from these small vessels were excluded from the requirements established under VIDA (CWA section 312(p)(9)(C)). Acts of Congress are not federal agency activities under the requirements of 15 CFR Part 930 and thus, are not subject to state CZMA federal consistency reviews. At the time of final publication (September 10, 2014), EPA estimated that approximately 115,000 to 138,000 vessels were potentially affected by the requirements of sVGP (79 Fed. Reg. 53,706); those vessels are now exempt from the rulemaking under VIDA. In the proposed rule, EPA does not provide an accounting or estimate of the number of small vessels operating exclusively on the Great Lakes. EPA estimates that the proposed rule would regulate approximately 82,000 commercial vessels (85 Fed. Reg. 67,819) worldwide. Of those, approximately 150 vessels make up the combined United States and Canadian Laker fleet (85 Fed. Reg. 67,846).
DEP shares the commenter’s concern that EPA did not fully evaluate the impacts of the proposed rule. While EPA discusses at length the general economic impacts on, and technical difficulties faced by, the Great Lakes shipping industry, EPA makes no cost-benefit analysis related to the ongoing and anticipated economic impacts related to the introduction and spread of aquatic invasive species. DEP discusses these related concerns in detail in the ROD (under [3]) in support of CRMP’s federal consistency objection to EPA’s proposed rulemaking.
5. Comment:
The federal rule proposes to not require vessel operators to minimize/avoid uptake of ballast water in certain areas and situations (e.g., toxic algal blooms). The proposed rule would appear to result in a failure to follow BMPs; therefore, the proposed rule should not be adopted. Not requiring this BMP makes the proposed standards less stringent than the existing 2013 VGP (i.e., operators would be able to uptake ballast water in areas known to have infestations or populations of harmful organisms and pathogens). (1)
Response:
DEP agrees that the proposed rule is not consistent with CRMP Policy 3.1 (Support Fish Life), in part, on the basis described by the commenter. DEP also agrees that the proposed rule is less stringent than the 2013 VGP and is therefore not consistent with the requirements of VIDA. DEP describes both of these positions fully in the ROD (under [1] and [4], respectively) supporting CRMP’s federal consistency objection to EPA’s proposed rulemaking.
6. Comment:
Page 67874 - Per Section X, 7th full paragraph, of the Vessel Incidental Discharge National Standards of Performance, “the proposed rule does not include implementation, compliance, or enforcement provisions”. The USCG is set to promulgate the monitoring and enforcement requirements of the proposed standards, conceivably indicating the new role for each state. The final rule should specify what measures the State of Pennsylvania will take to prepare for a smooth transition. Additionally, the final rule should specify what the State of Pennsylvania will be required to do to ensure the coastal waters are protected during any transitional period. (1)
Response:
Under VIDA, the USCG is required to promulgate implementing regulations subsequently to EPA’s final VIDA rulemaking. Under 15 CFR Part 930 Subpart C (relating to consistency for federal agency activities), USCG is required to submit a federal consistency determination to state and territorial coastal programs. DEP will review those implementing regulations in relation to CRMP’s NOAA-approved enforceable policies when USCG submits the federal consistency determination.
___________________________________________________
Pennsylvania Department of Environmental Protection
Policy Office
400 Market Street
P.O. Box 2063
Harrisburg, PA 17105-2063
Via email at This email address is being protected from spambots. You need JavaScript enabled to view it.
Re: Coastal Zone Management federal consistency: United States Environmental Protection Agency - National Performance Standards for Discharges Incidental to the Normal Operation of a Commercial Vessel, Comments Due 1-4-21
To Whom This May Concern,
Environmental Review, Inc. has reviewed the proposed rule and has the following comments:
1) Please make sure the relevant documents for review are uploaded to the Pennsylvania Department of Environmental Protection (DEP) eComment webpage to foster community involvement. In this case, the links to the proposed rule and to the Pennsylvania Coastal Resources Management Program (CRM), were not provided. We recommend that the pertinent information should be readily available with the comment period public notice.
2) EPA’s proposed rule, supporting documentation, and the Pennsylvania CRM documents are both several hundred pages long and create a challenge to review and submit public comments for in such a limited time period. In order to foster community involvement, please extend the Public Comment period for an additional 30 or more days to allow me and the general public more time to conduct a thorough review and provide feedback of the documents.
3) According to the CRM, for all federal agency activities that may impact the coast, the federal agency must determine consistency with the coastal management program. Does the DEP have cause to believe that the proposed rule will impact Pennsylvania’s coastal area? Additionally, did the EPA submit its consistency determination to the DEP?
4) Commercial fishing vessels and other non-recreational vessels less than 79 feet in length are currently covered under the 2013 Vessel General Permit (VGP) or EPA’s small VGP (sVGP). Per the proposed Vessel Incidental Discharge National Standards of Performance, vessels less than 79 feet in length are exempt. However, the rule applies to any discharge of ballast water. The document failed to present statistics on the effective impact of the proposed rule. We suggest that the State of Pennsylvania provide information on these impacts (e.g., add a table showing how many vessels are currently regulated and provide information as to the number of vessels that will be both impacted and left unregulated by the proposed rule).
5) The federal rule proposes to not require vessel operators to minimize/avoid uptake of ballast water in certain areas and situations (e.g., toxic algal blooms).1 The proposed rule would appear to result in a failure to follow BMPs; therefore, the proposed rule should not be adopted. Not requiring this BMP makes the proposed standards less stringent than the existing 2013 VGP (i.e., operators would be able to uptake ballast water in areas known to have infestations or populations of harmful organisms and pathogens).
6) Page 67874 - Per Section X, 7th full paragraph, of the Vessel Incidental Discharge National Standards of Performance, “the proposed rule does not include implementation, compliance, or enforcement provisions”. The USCG is set to promulgate the monitoring and enforcement requirements of the proposed standards, conceivably indicating the new role for each state. The final rule should specify what measures the State of Pennsylvania will take to prepare for a smooth transition. Additionally, the final rule should specify what the State of Pennsylvania will be required to do to ensure the coastal waters are protected during any transitional period.
When responses to these comments are available, please email them to me at This email address is being protected from spambots. You need JavaScript enabled to view it..
Thank you,
Nelly Montanez (Associate in Illinois)
Environmental Reviewer
Environmental Review, Inc. (501 (c)(3) Nonprofit Public Benefit Corporation)
1792 Rogers Avenue
San Jose, CA 95112
Footnotes
1 Vessel Incidental Discharge National Standards of Performance section VIII. Development of National Discharge Standards of Performance, B. Discharges Incidental to the Normal Operation of a Vessel - Specific Standards, 2. Ballast Tanks, IV. Ballast Water Best Management Practices (BMPS), H. Best Management Practices Not Continued From Existing Requirements