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

www.envreview.org     

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