[Senate Report 104-113]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 146
104th Congress                                                   Report
                                 SENATE

 1st Session                                                    104-113
_______________________________________________________________________


 
 UNIFORM NATIONAL DISCHARGE STANDARDS FOR ARMED FORCES VESSELS ACT OF 
                                  1995

                                _______


    July 13 (legislative day, July 10), 1995.--Ordered to be printed

_______________________________________________________________________


    Mr. Chafee, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 1033]

                                     
    The Committee on Environment and Public Works reports an 
original bill (S. 1033) to amend the Federal Water Pollution 
Control Act to establish uniform national discharge standards 
for the control of water pollution from vessels of the Armed 
Forces, and for other purposes, having considered the same, 
reports favorably thereon and recommends that the bill do pass.

                           General Statement

    The proposed legislation results from an initiative begun 
by the Navy in 1990. The Navy wishes to clarify the regulatory 
status of certain non-sewage discharges from Navy vessels. 
Vessels are point sources of pollution under the Clean Water 
Act. Any discharge of pollutants from a point source, including 
a vessel, into the waters of the United States is prohibited 
unless specifically permitted under section 402 or 404 of the 
Act. Notwithstanding this prohibition, discharges from vessels 
have generally not been subject to the permit requirements. 
Discharges of sewage are regulated under section 312 through 
standards for installation and use of marine sanitation 
devices. These requirements to employ a particular treatment 
technology have been imposed in lieu of permit requirements for 
sewage discharges. Most other non-sewage discharges from 
vessels, including graywater, bilge water and discharges from 
machinery, are exempt from permit requirements under 
regulations issued by the Environmental Protection Agency 
(EPA).
    Although EPA regulations generally exempt non-sewage 
discharges from vessels from the permit requirements of the 
Act, some coastal states have imposed regulations or inspection 
programs that may have application to these types of 
discharges. A series of events in the waters of several coastal 
states prompted concern at the Navy as to state authorities to 
regulate these discharges.
    The Navy has been working to resolve these questions by 
establishing Federal standards for non-sewage discharges from 
vessels of the Armed Forces. These efforts have included 
consultations with the states and other Federal agencies and a 
dialog with a broad section of the interested public.
    On June 8, 1995, the Navy transmitted to the Vice President 
and the Speaker of the House a proposed bill that, if enacted, 
would direct the Secretary of Defense and the Administrator of 
the EPA to develop standards and regulations applicable to non-
sewage discharges from vessels of the Armed Forces.

                       Summary of the Legislation

    The proposed bill amends section 312 of the Federal Water 
Pollution Control Act to direct the Secretary of Defense and 
the Administrator of the EPA to develop standards and 
regulations to address the environmental effects of non-sewage 
discharges from vessels of the Armed Forces. These discharges 
are currently exempt from control under the Federal Water 
Pollution Control Act based on regulations issued by EPA. 
Sewage discharges from these vessels are already regulated 
under section 312. The legislative authority for the new 
requirements parallels the structure of section 312 as it is 
now written.
    The Department of Defense (DOD) and EPA are to act jointly 
to identify the non-sewage discharges that are to be subject to 
control. These discharges may include graywater (sink and 
shower water), bilge water (from the hold of the vessel), 
boiler blow down waste streams, wastewater from vessel cleaning 
operations, discharges from other mechanical and maintenance 
operations and releases of hazardous substances from hull 
coatings. The discharges are termed ``discharges incidental to 
the normal operation of a vessel'' by the proposed legislation. 
The National Oceanic and Atmospheric Administration (NOAA) and 
the interested coastal states are to be consulted prior to a 
final determination of the discharges to be addressed.
    In a second step, EPA and DOD are to jointly identify the 
technologies and practices that are to be used to control 
discharges of concern. DOD and EPA are to consider a series of 
factors in making this determination including the 
environmental effects of the discharge, the operational 
constraints of the vessel design and mission and cost. The 
required technologies and practices are termed ``marine 
pollution control devices'' by the proposed legislation. As 
with the identification of discharges to be regulated, EPA and 
DOD are to consult with the states and other Federal agencies 
in making the determination.
    In a third step, the Secretary of Defense issues 
regulations requiring the installation and operation of 
particular equipment and practices on vessels. These 
requirements may vary by vessel type and age.
    Once standards and regulations have been imposed on 
discharges by DOD and EPA, State laws and regulations that 
would apply to the same discharges are preempted. States are, 
however, authorized to establish ``no discharge zones'' that 
would prohibit all discharges of a particular type. Vessels of 
the Armed Forces would be required to comply with these 
prohibitions provided that they apply to all vessels, including 
commercial vessels, and that there are adequate facilities to 
remove the wastes that may not be discharged. This authority 
for States to establish no discharge zones is similar to 
authority available to the States under current law with 
respect to sewage discharges.
    The standards and regulations issued by DOD and EPA are to 
be enforced by the U.S. Coast Guard, as are the other 
provisions of section 312. Violations may be subject to 
administrative penalties of up to $5,000 per violation. The 
Coast Guard may request assistance from the states in carrying 
out enforcement functions.
    The bill also amends section 502(6) of the Clean Water Act 
to exclude from the definition of pollutant the non-sewage 
discharges that are subject to the new provisions of section 
312. The effect of this amendment is to remove the statutory 
requirement for a permit for these point source discharges to 
the waters of the United States.

                      Section-by-Section Analysis

Section 1. Short title

    Section 1 provides that the bill, if enacted, may be 
referred to as the ``Uniform National Discharge Standards for 
Armed Forces Vessels Act of 1995''.

Section 2. Purposes

    Section 2 of the bill sets forth the purposes including: 
enhancing the operational flexibility of Armed Forces vessels; 
stimulating the development of new pollution control technology 
for vessels; and advancing the Navy policy to operate 
Environmentally Sound Ships.

Section 3. Uniform National Discharge Standards Development

    Section 3 of the bill amends section 312 of the Federal 
Water Pollution Control Act to require the Secretary of Defense 
and the Administrator of the EPA to promulgate standards and 
regulations with respect to non-sewage discharges from Armed 
Forces vessels. The bill would add a new subsection (n) to 
section 312. The subsection would only address discharges from 
vessels of the Armed Services and vessels operated by the 
Department of Transportation that are equivalent to DOD 
vessels. The subsection only addresses the non-sewage 
discharges from these vessels, because sewage discharges are 
regulated under other provisions of section 312.
    As with other provisions of section 312, the Secretary of 
Defense may exempt certain vessels or classes of vessels from 
compliance with the new subsection (n), if the Secretary 
determines that compliance would not be in the national 
security interests of the United States.
    The standards and regulations to be issued under subsection 
(n) would be developed jointly by DOD and EPA in three steps. 
In the first step, DOD and EPA are to identify the specific 
discharges that should be addressed by pollution control 
regulations. The discharges to be reviewed for possible control 
include graywater, bilge water, cooling water, deck runoff, 
ballast water, wastewaters from various other ship operational 
and maintenance systems, and releases that may occur from hull 
coatings. To determine which discharges are to be controlled 
DOD and EPA are to consider a series of factors including: the 
nature of the discharge; the adverse environmental effects of 
the discharge; the practicability of using pollution control 
equipment or management practices to reduce the environmental 
effects of the discharge; the impact of the equipment or 
practice on the operational capability of the vessel; 
applicable law and international standards; and the economic 
costs of the pollution control technology or practice.
    One of the factors to be considered in determining which 
discharges should be subject to control is ``the practicability 
of using the marine control device''. Although the term 
``practicability'' is used in other provisions of the Federal 
Water Pollution Control Act as a test of the economic 
feasibility of a particular control technology, use of the term 
``practicability'' here has no economic or cost implications. 
As used here, the term ``practicability'' relates only to the 
operational feasibility of the equipment or practice considered 
in the context of the mission of the vessel.
    The Secretary of Defense and the Administrator are to 
promulgate these determinations after notice and opportunity 
for public comment as provided in the Administrative Procedures 
Act (APA). Although the APA does not generally apply directly 
to actions such as this taken with respect to military 
functions, the bill requires DOD and EPA to follow APA 
procedures to assure that there is broad consultation in 
identifying the discharges to be regulated. Determinations made 
by DOD and EPA under subsection (n) will preempt authority of 
the States to regulate these discharges. A determination that a 
discharge should not be regulated will also bar regulation by a 
State. Therefore, a full APA review is an appropriate 
procedural safeguard.
    In addition to the notice and comment procedures, DOD and 
EPA are to consult with the interested States, the Secretary of 
Transportation and the Secretary of Commerce before making 
final determinations on the discharges to be regulated. The 
National Oceanic and Atmospheric Administration has significant 
expertise with respect to the environmental effects of 
pollution in coastal and marine waters. The Department of 
Transportation is included in the consultation process because 
the Coast Guard currently enforces other pollution laws that 
may have adverse environmental effects on marine and coastal 
waters and will be the enforcement authority for these 
provisions.
    Subsection (n)(3) directs the Secretary of Defense and the 
Administrator to promulgate standards applicable to the 
discharges which have been selected for regulation under 
paragraph (2). These standards are to govern the performance of 
the marine pollution control devices (which may be either 
equipment or practices) that will be used to reduce the adverse 
environmental effects of the discharges.
    The factors to be considered in selecting performance 
standards are precisely the same factors as DOD and EPA are to 
consider when selecting discharges for control (nature of 
discharge, environmental effect, cost, etc.). Under amendments 
to section 312(a) the bill establishes a definition for the 
term ``marine pollution control device'. This definition 
provides that the level of control to be achieved by a 
particular device is to be the most effective level of control 
that is consistent with the other factors to be considered 
under paragraph (3).
    The performance standards may vary according to the class, 
type or size of vessel and may distinguish between new and 
existing vessels. They may also provide for a waiver of the 
standards for a particular type or size of vessel. These 
distinctions and waivers are to be based on the same factors 
that are considered in setting the performance standards and 
identifying discharges for regulation.
    DOD and EPA are to consult with other Federal agencies and 
the interested States in establishing performance standards. In 
addition, the standards are to be promulgated only after a 
notice and comment proceeding similar to an informal rulemaking 
under the APA.
    Subsection (n)(4) establishes the final step in the process 
by requiring the Secretary of Defense to issue regulations for 
the installation and use of marine pollution control devices 
(which may be either equipment or practices) on particular 
vessels.
    Subsection (n)(5) imposes deadlines for DOD and EPA to 
jointly promulgate determinations, standards of performance and 
regulations. Initial determinations with respect to the 
discharges to be regulated are due not later than 2 years after 
the date of enactment of the subsection. DOD and EPA are to 
periodically review these determinations (not less often than 
every 5 years) and are to add to the list of discharges subject 
to control, if new information indicates that the discharge 
meets the criteria established by paragraph (2).
    Standards of performance for marine pollution control 
devices applicable to a particular type of discharge are to be 
issued not later than 2 years after the DOD and EPA determine 
that the discharge should be controlled.
    Finally, DOD is to promulgate regulations providing for the 
installation and use of marine pollution control devices on 
particular vessels not later than one year after the date on 
which standards of performance for the devices are issued. The 
regulations are to be effective on the date they are 
promulgated unless the Secretary of Defense establishes some 
other effective date as part of the regulation.
    Subsection (n)(5) authorizes the Governor of any State to 
submit a petition to DOD and EPA proposing that determinations 
under paragraph (2) and standards set under paragraph (3) be 
modified to cover additional discharges or amend the standards 
to provide greater environmental protection. The petitions must 
be based on new information that was not considered by DOD and 
EPA in making the determinations or issuing the standards. DOD 
and EPA must respond to any petition from a State within 2 
years. This gives the Federal agencies adequate time to review 
the science and engineering information to determine whether 
the proposal made in the petition is consistent with the 
considerations set forth in paragraphs (2) and (3).
    Subsection (n)(6) addresses the applicability of other laws 
to discharges incidental to the normal operation of a vessel to 
be regulated under the new subsection (n). State laws 
applicable to these discharges would be preempted under two 
conditions. First, if the Secretary of Defense and the 
Administrator determine that a discharge should not be 
regulated after consideration of the factors listed in 
subsection (n)(2)(B), the States are preempted from regulation 
of that discharge at the time that the determination is 
promulgated. Second, if a discharge is determined to merit 
control and standards and regulations for a marine pollution 
control device applicable to the discharge are issued, the 
States are preempted with respect to regulation of the same 
discharges on the effective date of the DOD regulation 
mandating installation or use of the equipment or practice.
    Subsection (n)(6)(B), on the other hand, explicitly 
provides that subsection (n) shall not affect the applicability 
of any other provision of Federal law, including other 
provisions of the Federal Water Pollution Control Act, to 
discharges incidental to the normal operation of a vessel. To 
the extent that section 311, other sections of the Act or other 
laws apply to these discharges on their own terms, they would, 
with one exception, continue to apply if this bill is enacted. 
The current provisions of the Federal Water Pollution Control 
Act including sections 301 and 402 that potentially subject 
these discharges to permit requirements (absent the exemption 
found at part 122.3 of title 40, Code of Federal Regulations) 
are set aside by amendments made by section 4 of this bill to 
section 502(6) of the Act.
    Notwithstanding the preemption established by the new 
subsection (n)(6), States would be authorized under paragraph 
(7) to establish no discharge zones within which discharges 
incidental to the normal operation of a vessel may be 
prohibited. The no discharge zones established by States must 
be approved by the Administrator upon application by the State. 
The Administrator is to approve or disapprove any application 
submitted by a State within 90 days and is to approve an 
application, if the Administrator determines that protection 
and enhancement of water quality require the prohibition of 
discharges, adequate facilities are available to handle the 
wastes that would otherwise have been discharged, and the 
prohibition does not discriminate against vessels of the Armed 
Forces.
    The bill is not intended to impose a burden on the States 
to provide facilities for the wastes from Armed Forces vessels 
that would otherwise have been discharged. The Administrator 
may not disapprove an application for a no discharge zone, if 
all of the other conditions for approving the application have 
been met and the only deficiency is a lack of facilities to 
handle wastes from Armed Forces vessels.
    Subsection (n)(8) makes the operation of a vessel of the 
Armed Forces in violation of regulations promulgated under 
paragraph (4) an unlawful act. This prohibition applies in the 
navigable waters of the United States and in the contiguous 
zone, which generally extends to 12 nautical miles from the 
baseline. This is consistent with the geographic scope of the 
requirements and prohibitions established under section 311 of 
the Federal Water Pollution Control Act.
    Subsection (n)(9) provides that the prohibitions 
established by paragraph (8) be enforced under the existing 
authorities of section 312.

Section 4. Conforming Amendments

    Section 4 makes several changes in section 312 and other 
provisions of the Federal Water Pollution Control Act. The 
definition of the term ``person'' in section 312(a)(8) is 
amended to include a reference to the agencies of the United 
States. This amendment ensures that all of the provisions of 
section 312, including regulations for marine sanitation 
devices to treat sewage before discharge, apply to all Federal 
agencies, including the Armed Forces.
    Three definitions are added to section 312(a). The term 
``discharge incidental to the operation of a vessel'' is 
defined to denote those discharges (other than sewage, solid 
waste discharged overboard or air emissions) that are 
potentially subject to control under the new subsection (n). 
These discharges include graywater, bilge water, cooling water, 
runoff from the deck, ballast water, other wastewaters from 
vessel operations and maintenance, and releases from hull 
coatings.
    The amendment to section 312 made by this bill is intended 
to address discharges that are currently subject to the Federal 
Water Pollution Control Act as vessels are point sources of 
discharge, but have been exempt from permit requirements under 
section 402 of the Act because of provisions of the regulation 
published at part 122.3 of title 40, Code of Federal 
Regulations. Discharges that are not exempt from permit 
requirements under section 402 as the result of this regulation 
would not be discharges incidental to the normal operation of a 
vessel and would continue to remain subject to permit and other 
requirements as point source discharges under the Federal Water 
Pollution Control Act. This may include discharges associated 
with maintenance when a vessel is in port and not engaged in 
transportation.
    The second definition added to section 312 is for the term 
``marine pollution control device''. These devices include 
equipment installed and used or practices used on vessels of 
the Armed Forces to reduce the adverse environmental impacts of 
discharges. Standards of performance for these devices are to 
be set under the new subsection (n)(3) of section 312. 
Equipment or a practice only qualifies as a marine pollution 
control device under this definition, if the device is the most 
effective equipment or practice to reduce the adverse 
environmental impacts of the discharge, consistent with the 
considerations set forth in paragraph (3)(B). These 
considerations include the cost, practicability and effect of 
the operation of the device on the mission of the vessels for 
which it is required.
    This is not a requirement for best available control 
technology as mandated for other discharges under the Federal 
Water Pollution Control Act, because installation and use of 
the best available technology may not be consistent with the 
mission and operational characteristics of an Armed Forces 
vessel. Taking into account the considerations referenced by 
the new section 312(n)(3)(B), DOD and EPA are to set 
performance standards for marine pollution control devices 
ensuring that the pollution reductions effectuated by the 
standards are the greatest reductions that can be achieved by 
the most effective technology consistent with those 
considerations.
    Section 312(a) is also amended to define the term ``vessel 
of the Armed Forces'' to include vessels owned and operated by 
the Department of Defense and vessels owned or operated by the 
Department of Transportation that are operated in a manner that 
is equivalent to the operation of a DOD vessel.
    Section 312(j) of the Federal Water Pollution Control Act 
is amended to establish a clear enforcement policy with respect 
to the new requirements of section 312(n). The prohibitions 
established in subsection (n)(8) would be enforced by the Coast 
Guard with a maximum administrative penalty for a violation of 
$5000.
    Section 502(6) of the Federal Water Pollution Control Act 
is also amended to exclude discharges incidental to the normal 
operation of a vessel of the Armed Forces from the meaning of 
the term ``pollutant''. This modification is necessary to 
provide that these discharges are regulated under section 312 
and not pursuant to section 301 and 402. The exclusion 
parallels the treatment of sewage discharges regulated under 
section 312 of current law.

Section 5. Cooperation in Standards Development

    Section 5 of the bill is a free-standing provision that 
authorizes DOD and EPA to share resources to accomplish the 
purposes of this Act. There is concern that the EPA does not 
have the resources to gather the scientific and engineering 
information to make sound determinations and set standards 
under this Act in an expeditious manner. This provision would 
allow DOD to share information and resources with EPA to ensure 
that the deadlines established for action under this bill are 
met.

                           Regulatory Impact

    Section 11(b) of rule XXVI of the Standing Rules of the 
Senate require the Committee to evaluate the regulatory impact 
of the reported bill.
    The bill provides that the Secretary of Defense and the 
Administrator of EPA shall develop standards and regulations to 
address the environmental effects of non-sewage discharges from 
vessels of the Armed Forces. The bill will have no regulatory 
impact on the private sector.

                          Cost of Legislation

    Section 403 of the Congressional Budget and Impoundment Act 
requires that a statement of cost of the reported bill, 
prepared by the Congressional Budget Office, be included in the 
report. That statement has been requested. However, it is the 
opinion of the Committee that in order to expedite the business 
of the Senate, it is necessary to file this report without the 
statement.

                        Changes in Existing Law

    In compliance with section 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill 
as reported are shown as follows: Existing law proposed to be 
omitted is enclosed in black brackets, new matter is printed in 
italic, existing law in which no change is proposed is shown in 
roman:
                      TITLE 33, UNITED STATES CODE

                    NAVIGATION AND NAVIGABLE WATERS

          * * * * * * *

           CHAPTER 26--WATER POLLUTION PREVENTION AND CONTROL

          * * * * * * *

Sec. 1322. Marine sanitation devices

    (a) Definitions.--For the purpose of this section, the 
term--
          (1) * * *
          (8) ``person'' means an individual, partnership, 
        firm, corporation, [or] association, or agency of the 
        United States, but does not include an individual on 
        board a public vessel;
          * * * * * * *
          (11) ``graywater'' means galley, bath, and shower 
        water[.];
          (12) ``discharge incidental to the normal operation 
        of a vessel''--
                  (A) means a discharge, including--
                          (i) graywater, bilge water, cooling 
                        water, weather deck runoff, ballast 
                        water, oil water separator effluent, 
                        and any other pollutant discharge from 
                        the operation of a marine propulsion 
                        system, shipboard maneuvering system, 
                        crew habitability system, or installed 
                        major equipment, such as an aircraft 
                        carrier elevator or a catapult, or from 
                        a protective, preservative, or 
                        absorptive application to the hull of 
                        the vessel; and
                          (ii) a discharge in connection with 
                        the testing, maintenance, and repair of 
                        a system described in clause (i) 
                        whenever the vessel is engaged in 
                        transportation; and
                  (B) does not include--
                          (i) a discharge of rubbish, trash, 
                        garbage, or other such material 
                        discharged overboard; or
                          (ii) an air emission resulting from 
                        the operation of a vessel propulsion 
                        system, motor driven equipment, or 
                        incinerator;
          (13) ``marine pollution control device'' means any 
        equipment or management practice, for installation or 
        use on board a vessel of the Armed Forces, that is--
                  (A) designed to receive, retain, treat, 
                control, or discharge a discharge incidental to 
                the normal operation of a vessel; and
                  (B) determined by the Administrator and the 
                Secretary of Defense to be the most effective 
                equipment or management practice to reduce the 
                environmental impacts of the discharge 
                consistent with the considerations set forth in 
                subsection (n)(2)(B); and
          (14) ``vessel of the Armed Forces'' means--
                  (A) any vessel owned or operated by the 
                Department of Defense, other than a time or 
                voyage chartered vessel; and
                  (B) any vessel owned or operated by the 
                Department of Transportation that is designated 
                by the Secretary of the department in which the 
                Coast Guard is operating as a vessel equivalent 
                to a vessel described in subparagraph (A).
          * * * * * * *
    (j) Penalties.--Any person who violates subsection (g)(1), 
[of this section] or clause (1) or (2) of subsection (h) [of 
this section shall], or subsection (n)(8) shall be liable to a 
civil penalty of not more than $5,000 for each violation. Any 
person who violates clause (4) of subsection (h) of this 
section or any regulation issued pursuant to this section shall 
be liable to a civil penalty of not more than $2,000 for each 
violation. Each violation shall be a separate offense. The 
Secretary of the department in which the Coast Guard is 
operating may assess and compromise any such penalty. No 
penalty shall be assessed until the person charged shall have 
been given notice and an opportunity for a hearing on such 
charge. In determining the amount of the penalty, or the amount 
agreed upon in compromise, the gravity of the violation, and 
the demonstrated good faith of the person charged in attempting 
to achieve rapid compliance, after notification of a violation, 
shall be considered by said Secretary.
          * * * * * * *
    (n) Uniform National Discharge Standards for Vessels of the 
Armed Forces.--
          (1) Applicability.--This subsection shall apply to 
        vessels of the Armed Forces and discharges, other than 
        sewage, incidental to the normal operation of a vessel 
        of the Armed Forces, unless the Secretary of Defense 
        finds that compliance with this subsection would not be 
        in the national security interests of the United 
        States.
          (2) Determination of discharges required to be 
        controlled by marine pollution control devices.--
                  (A) In general.--The Administrator and the 
                Secretary of Defense, after consultation with 
                the Secretary of the department in which the 
                Coast Guard is operating, the Secretary of 
                Commerce, and interested States, shall jointly 
                determine the discharges incidental to the 
                normal operation of a vessel of the Armed 
                Forces for which it is reasonable and 
                practicable to require use of a marine 
                pollution control device to mitigate adverse 
                impacts on the marine environment. 
                Notwithstanding subsection (a)(1) of section 
                553 of title 5, United States Code, the 
                Administrator and the Secretary of Defense 
                shall promulgate the determinations in 
                accordance with the section.
                  (B) Considerations.--In making a 
                determination under subparagraph (A), the 
                Administrator and the Secretary of Defense 
                shall take into consideration--
                          (i) the nature of the discharge;
                          (ii) the environmental effects of the 
                        discharge;
                          (iii) the practicability of using the 
                        marine pollution control device;
                          (iv) the effect that installation or 
                        use of the marine pollution control 
                        device would have on the operation or 
                        operational capability of the vessel;
                          (v) applicable United States law;
                          (vi) applicable international 
                        standards; and
                          (vii) the economic costs of the 
                        installation and use of the marine 
                        pollution control device.
          (3) Performance standards for marine pollution 
        control devices.--
                  (A) In general.--For each discharge for which 
                a marine pollution control device is determined 
                to be required under paragraph (2), the 
                Administrator and the Secretary of Defense, in 
                consultation with the Secretary of the 
                department in which the Coast Guard is 
                operating, the Secretary of State, the 
                Secretary of Commerce, other interested Federal 
                agencies, and interested States, shall jointly 
                promulgate Federal standards of performance for 
                each marine pollution control device required 
                with respect to the discharge. Notwithstanding 
                subsection (a)(1) of section 553 of title 5, 
                United States Code, the Administrator and the 
                Secretary of Defense shall promulgate the 
                standards in accordance with the section.
                  (B) Considerations.--In promulgating 
                standards under this paragraph, the 
                Administrator and the Secretary of Defense 
                shall take into consideration the matters set 
                forth in paragraph (2)(B).
                  (C) Classes, types, and sizes of vessels.--
                The standards promulgated under this paragraph 
                may--
                          (i) distinguish among classes, types, 
                        and sizes of vessels;
                          (ii) distinguish between new and 
                        existing vessels; and
                          (iii) provide for a waiver of the 
                        applicability of the standards as 
                        necessary or appropriate to a 
                        particular class, type, or size of 
                        vessel.
          (4) Regulations for use of marine pollution control 
        devices.--The Secretary of Defense, after consultation 
        with the Administrator and the Secretary of the 
        department in which the Coast Guard is operating, shall 
        promulgate such regulations governing the design, 
        construction, installation, and use of marine pollution 
        control devices on board vessels of the Armed Forces as 
        are necessary to achieve the standards promulgated 
        under paragraph (3).
          (5) Deadlines; effective date.--
                  (A) Determinations.--The Administrator and 
                the Secretary of Defense shall--
                          (i) make the initial determinations 
                        under paragraph (2) not later than 2 
                        years after the date of enactment of 
                        this subsection; and
                          (ii) every 5 years--
                                  (I) review the 
                                determinations; and
                                  (II) if necessary, revise the 
                                determinations based on 
                                significant new information.
                  (B) Standards.--The Administrator and the 
                Secretary of Defense shall--
                          (i) promulgate standards of 
                        performance for a marine pollution 
                        control device under paragraph (3) not 
                        later than 2 years after the date of a 
                        determination under paragraph (2) that 
                        the marine pollution control device is 
                        required; and
                          (ii) every 5 years--
                                  (I) review the standards; and
                                  (II) if necessary, revise the 
                                standards, consistent with 
                                paragraph (3)(B) and based on 
                                significant new information.
                  (C) Regulations.--The Secretary of Defense 
                shall promulgate regulations with respect to a 
                marine pollution control device under paragraph 
                (4) as soon as practicable after the 
                Administrator and the Secretary of Defense 
                promulgate standards with respect to the device 
                under paragraph (3), but not later than 1 year 
                after the Administrator and the Secretary of 
                Defense promulgate the standards. The 
                regulations promulgated by the Secretary of 
                Defense under paragraph (4) shall become 
                effective upon promulgation unless another 
                effective date is specified in the regulations.
                  (D) Petition for review.--The Governor of any 
                State may submit a petition requesting that the 
                Secretary of Defense and the Administrator 
                review a determination under paragraph (2) or a 
                standard under paragraph (3), if there is 
                significant new information, not considered 
                previously, that could reasonably result in a 
                change to the particular determination or 
                standard after consideration of the matters set 
                forth in paragraph (2)(B). The petition shall 
                be accompanied by the scientific and technical 
                information on which the petition is based. The 
                Administrator and the Secretary of Defense 
                shall grant or deny the petition not later than 
                2 years after the date of receipt of the 
                petition.
          (6) Effect on other laws.--
                  (A) Prohibition on regulation by states or 
                political subdivisions of states.--Beginning on 
                the effective date of--
                          (i) a determination under paragraph 
                        (2) that it is not reasonable and 
                        practicable to require use of a marine 
                        pollution control device regarding a 
                        particular discharge incidental to the 
                        normal operation of a vessel of the 
                        Armed Forces; or
                          (ii) regulations promulgated by the 
                        Secretary of Defense under paragraph 
                        (4);
                except as provided in paragraph (7), neither a 
                State nor a political subdivision of a State 
                may adopt or enforce any statute or regulation 
                of the State or political subdivision with 
                respect to the discharge or the design, 
                construction, installation, or use of any 
                marine pollution control device required to 
                control the discharge.
                  (B) Federal laws.--This subsection shall not 
                affect the application of any other provision 
                of Federal law, including this Act, to 
                discharges incidental to the normal operation 
                of a vessel.
          (7) Establishment of state no-discharge zones.--
                  (A) State prohibition.--
                          (i) In general.--After the effective 
                        date of--
                                  (I) a determination under 
                                paragraph (2) that it is not 
                                reasonable and practicable to 
                                require use of a marine 
                                pollution control device 
                                regarding a particular 
                                discharge incidental to the 
                                normal operation of a vessel of 
                                the Armed Forces; or
                                  (II) regulations promulgated 
                                by the Secretary of Defense 
                                under paragraph (4);
                        if a State determines that the 
                        protection and enhancement of the 
                        quality of some or all of the waters 
                        within the State require greater 
                        environmental protection, the State may 
                        prohibit 1 or more discharges 
                        incidental to the normal operation of a 
                        vessel, whether treated or not treated, 
                        into the waters. No prohibition shall 
                        apply until the Administrator makes the 
                        determination described in subparagraph 
                        (B)(ii).
                          (ii) Documentation.--To the extent 
                        that a prohibition under this paragraph 
                        would apply to vessels of the Armed 
                        Forces and not to other types of 
                        vessels, the State shall document the 
                        technical or environmental basis for 
                        the distinction.
                  (B) Prohibition by the administrator.--
                          (i) In general.--Upon application of 
                        a State, the Administrator shall by 
                        regulation prohibit the discharge from 
                        a vessel of 1 or more discharges 
                        incidental to the normal operation of a 
                        vessel, whether treated or not treated, 
                        into the waters covered by the 
                        application if the Administrator 
                        determines that--
                                  (I) the protection and 
                                enhancement of the quality of 
                                the specified waters within the 
                                State require a prohibition of 
                                the discharge into the waters;
                                  (II) adequate facilities for 
                                the safe and sanitary removal 
                                of the discharge incidental to 
                                the normal operation of a 
                                vessel are reasonably available 
                                for the waters to which the 
                                prohibition would apply; and
                                  (III) the prohibition will 
                                not have the effect of 
                                discriminating against a vessel 
                                of the Armed Forces by reason 
                                of the ownership or operation 
                                by the Federal Government, or 
                                the military function, of the 
                                vessel.
                          (ii) Approval or disapproval.--The 
                        Administrator shall approve or 
                        disapprove an application submitted 
                        under clause (i) not later than 90 days 
                        after the date on which the application 
                        is submitted to the Administrator. 
                        Notwithstanding clause (i)(II), the 
                        Administrator shall not disapprove an 
                        application for the sole reason that 
                        there are not adequate facilities to 
                        remove any discharge incidental to the 
                        normal operation of a vessel from 
                        vessels of the Armed Forces.
                  (C) Applicability to foreign flagged 
                vessels.--A prohibition under this paragraph--
                          (i) shall not impose any design, 
                        construction, manning, or equipment 
                        standard on a foreign flagged vessel 
                        engaged in innocent passage unless the 
                        prohibition implements a generally 
                        accepted international rule or 
                        standard; and
                          (ii) that relates to the prevention, 
                        reduction, and control of pollution 
                        shall not apply to a foreign flagged 
                        vessel engaged in transit passage 
                        unless the prohibition implements an 
                        applicable international regulation 
                        regarding the discharge of oil, oily 
                        waste, or any other noxious substance 
                        into the waters.
          (8) Prohibition relating to vessels of the armed 
        forces.--After the effective date of the regulations 
        promulgated by the Secretary of Defense under paragraph 
        (4), it shall be unlawful for any vessel of the Armed 
        Forces subject to the regulations to--
                  (A) operate in the navigable waters of the 
                United States or the waters of the contiguous 
                zone, if the vessel is not equipped with any 
                required marine pollution control device 
                meeting standards established under this 
                subsection; or
                  (B) discharge overboard any discharge 
                incidental to the normal operation of a vessel 
                in waters with respect to which a prohibition 
                on the discharge has been established under 
                paragraph (7).
          (9) Enforcement.--This subsection shall be 
        enforceable, as provided in subsections (j) and (k), 
        against any agency of the United States responsible for 
        vessels of the Armed Forces notwithstanding any 
        immunity asserted by the agency.
          * * * * * * *

Sec. 1362. Definitions.

    Except as otherwise specifically provided, when used in 
this chapter:
          (1) * * *
          (6) The term ``pollutant'' means dredged spoil, solid 
        waste, incinerator residue, sewage, garbage, sewage 
        sludge, munitions, chemical wastes, biological 
        materials, radioactive materials, heat, wrecked or 
        discarded equipment, rock, sand, cellar dirt and 
        industrial, municipal, and agricultural waste 
        discharged into water. This term does not mean (A) 
        ``[sewage from vessel] sewage from vessels or a 
        discharge incidental to the normal operation of a 
        vessel of the Armed Forces '' within the meaning of 
        section 1322 of this title; or (B) water, gas, or other 
        material which is injected into a well to facilitate 
        production of oil or gas, or water derived in 
        association with oil or gas production and disposed of 
        in a well, if the well used either to facilitate 
        production or for disposal purposes is approved by 
        authority of the State in which the well is located, 
        and if such State determines that such injection or 
        disposal will not result in the degradation of ground 
        or surface water resources.
          * * * * * * *