[Federal Register Volume 64, Number 89 (Monday, May 10, 1999)]
[Rules and Regulations]
[Pages 25126-25138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11164]



[[Page 25125]]

_______________________________________________________________________

Part III





Environmental Protection Agency





40 CFR Part 9 and Chapter VII



_______________________________________________________________________





Department of Defense





40 CFR Chapter VII



Uniform National Discharge Standards for Vessels of the Armed Forces; 
Final Rule

  Federal Register / Vol. 64, No. 89 / Monday, May 10, 1999 / Rules and 
Regulations  

[[Page 25126]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 9 and Chapter VII

DEPARTMENT OF DEFENSE

40 CFR Chapter VII

[FRL-6335-5]
RIN 2040-AC96


Uniform National Discharge Standards for Vessels of the Armed 
Forces

AGENCY: Environmental Protection Agency (EPA) and Department of Defense 
(DOD).

ACTION: Final rule.

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

SUMMARY: This rule applies to discharges incidental to the normal 
operation of Armed Forces vessels and determines which of these 
discharges the Armed Forces will be required to control by using a 
marine pollution control device (MPCD), and which discharges will not 
require controls.
    Today's rule also establishes the mechanism by which States can 
petition EPA and DOD to review whether or not a discharge should 
require control by a MPCD or to review a Federal performance standard 
for a MPCD; and the processes EPA and States must follow to establish 
no-discharge zones (where any release of a specified discharge is 
prohibited).
    This rule completes the first phase of a three-phase process to set 
uniform national discharge standards (UNDS) for Armed Forces vessels. 
This Phase I rule determines the types of vessel discharges that 
require control by MPCDs and which do not, based on consideration of 
the anticipated environmental effects of the discharge and other 
factors listed in the Clean Water Act. Future rulemakings will 
promulgate the MPCD performance standards for those types of discharges 
requiring MPCDs (Phase II), and specify the requirements for the 
design, construction, installation, and use of MPCDs (Phase III).
    Uniform national discharge standards will result in enhanced 
environmental protection because standards will be established for 
certain discharges that currently are not regulated comprehensively. 
These standards will also advance the ability of the Armed Forces to 
better design and build environmentally sound vessels, to train crews 
to operate vessels in a manner that is protective of the environment, 
and to maintain operational flexibility both domestically and 
internationally. In addition, these standards are expected to stimulate 
the development of innovative vessel pollution control technology.

DATES: The regulation shall become effective June 9, 1999.

ADDRESSES: The complete public record for this rulemaking, including 
responses to comments received during the rulemaking, can be found 
under docket number W-97-21. The record is available for review at the 
Office of Water Docket, Room EB-57, 401 M Street SW., Washington, D.C. 
20460 from 9:00 a.m. to 4:00 p.m., Monday through Friday, excluding 
legal holidays. For access to docket materials, please call (202) 260-
3027 to schedule an appointment.

FOR FURTHER INFORMATION CONTACT: Mr. Gregory Stapleton (U.S. EPA) at 
(202) 260-0141, or Mr. David Kopack (U.S. Navy) at (703) 602-3594 ext. 
243.

SUPPLEMENTARY INFORMATION:

Regulated Entities

    This rule applies to discharges incidental to the normal operation 
of Armed Forces vessels in State waters and the contiguous zone, 
establishes procedures by which States can petition EPA and DOD to 
review whether a discharge should be controlled or to review a 
performance standard, and establishes procedures for creating no-
discharge zones in State waters. Regulated categories and entities 
include:

------------------------------------------------------------------------
                Category                  Examples of regulated entities
------------------------------------------------------------------------
Federal Government.....................  Vessels of the Armed Forces,
                                          including the Navy, Military
                                          Sealift Command, Marine Corps,
                                          Army, Air Force, and Coast
                                          Guard.
------------------------------------------------------------------------

    The preceding table is not intended to be exhaustive, but rather 
provides a guide for readers regarding entities likely to be regulated 
by this action. This table lists the types of entities that EPA and DOD 
are now aware could potentially be regulated by this action. Other 
types of entities not listed in the table could also be regulated. To 
determine whether a particular category of vessel, discharge from a 
vessel, or governmental entity is regulated by this action, carefully 
examine the applicability criteria at 40 CFR 1700.1 in the regulatory 
text following this preamble. For answers to questions regarding the 
applicability of this action to a particular entity, consult one of the 
persons listed in the preceding FOR FURTHER INFORMATION CONTACT 
section.

Exclusions

    This rule does not apply to commercial vessels; private vessels; 
vessels owned or operated by State, local, or tribal governments; 
vessels under the jurisdiction of the Army Corps of Engineers; vessels, 
other than those of the Coast Guard, under the jurisdiction of the 
Department of Transportation or other federal agencies; vessels 
preserved as memorials and museums; time- and voyage-chartered vessels; 
vessels under construction; vessels in drydock; and amphibious 
vehicles.

Supporting Documentation

    The technical basis for this rule is detailed in the ``Technical 
Development Document for Phase I Uniform National Discharge Standards 
for Vessels of the Armed Forces'' (EPA-821-R-99-001), hereafter 
referred to as the Technical Development Document. This background 
document is available through EPA's Internet Home Page at http://
www.epa.gov/OST/guide, or through the UNDS Internet Home Page at http:/
/206.5.146.100/n45/doc/unds/unds.html. This document is also available 
from the National Service Center for Environmental Publications, 11029 
Kenwood Road, Cincinnati, OH 45242; telephone: 1-800-490-9198; 
Internet: http://www.epa.gov/ncepi.

Overview

    This preamble describes the legal authority, background, technical 
basis, and other aspects of the final regulation. The definitions, 
acronyms, and abbreviations used in this notice are defined in Appendix 
A to the preamble. The regulatory text for this rule (40 CFR Part 1700) 
follows the preamble.

Organization of This Document

I. Summary of This Rulemaking
    A. Pollution Control Requirements for Vessel Discharges
    B. Effect on State and Local Laws and Regulations
II. Legal Authority and Background
    A. Clean Water Act Statutory Requirements
    B. Summary of Public Outreach and Consultation With States, 
Tribes, and Federal Agencies
III. Description of Armed Forces Vessels
IV. Developments Since Proposal
    A. Peer Review
    B. Public Comments
V. Related Acts of Congress and Executive Orders
    A. Executive Order 12866
    B. Unfunded Mandates Reform Act
    C. Executive Order 12875: Enhancing the Intergovernmental 
Partnership
    D. Executive Order 13084: Consultation and Coordination With 
Indian Tribal Governments
    E. Regulatory Flexibility Act, as Amended by the Small Business 
Regulatory Enforcement Fairness Act
    F. Paperwork Reduction Act
    G. Executive Order 13045
    H. Endangered Species Act

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    I. National Technology Transfer and Advancement Act
    J. Congressional Review Act
Appendix to the Preamble--Abbreviations, Acronyms, and Other Terms 
Used in This Document

I. Summary of This Rulemaking

A. Pollution Control Requirements for Vessel Discharges

    Today's rule creates a new 40 CFR part 1700 establishing uniform 
national discharge standards that apply to discharges, other than 
sewage, incidental to the normal operation of vessels of the Armed 
Forces. Incidental discharges include effluent from the normal 
operation of vessel systems or hull protective coatings, but do not 
include such things as emergency discharges, air emissions, or 
discharges of trash. These regulations apply to 39 types of vessel 
discharges and determine which of those discharges require control 
through the use of marine pollution control devices (MPCDs). A MPCD is 
any equipment or management practice installed or used onboard a vessel 
to control a discharge. Today's rule also identifies discharges that 
are excluded from any requirement for a MPCD because of their low 
potential for causing adverse impacts on the marine environment. The 
preamble for the proposed rule and the Technical Development Document 
describe these discharges in detail. See 63 FR at 45309-45325 (August 
25, 1998).
    In today's rule, EPA and DOD are requiring the 25 discharges listed 
in Table 1 to be controlled by MPCDs. These discharges are defined at 
40 CFR 1700.4 in the regulatory text following the preamble, and are 
described in detail in the preamble for the proposed rule (63 FR at 
45309-45318). The preamble for the proposed rule and the Technical 
Development Document also discuss whether and to what extent the 
discharges have the potential to cause adverse impacts on the marine 
environment, the availability of MPCDs to mitigate adverse impacts, and 
the rationale for requiring the use of MPCDs.

     Table 1.--Discharges Requiring Marine Pollution Control Devices
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
Aqueous Film-Forming Foam.
Catapult Water Brake Tank and Post-Launch Retraction Exhaust.
Chain Locker Effluent.
Clean Ballast.
Compensated Fuel Ballast.
Controllable Pitch Propeller Hydraulic Fluid.
Deck Runoff.
Dirty Ballast.
Distillation and Reverse Osmosis Brine.
Elevator Pit Effluent.
Firemain Systems.
Gas Turbine Water Wash.
Graywater.
Hull Coating Leachate.
Motor Gasoline Compensating Discharge.
Non-Oily Machinery Wastewater.
Photographic Laboratory Drains.
Seawater Cooling Overboard Discharge.
Seawater Piping Biofouling Prevention.
Small Boat Engine Wet Exhaust.
Sonar Dome Discharge.
Submarine Bilgewater.
Surface Vessel Bilgewater/Oil-Water Separator Discharge.
Underwater Ship Husbandry.
Welldeck Discharges.
------------------------------------------------------------------------

    This rule imposes no controls on the 14 types of discharges listed 
in Table 2. These 14 discharges are defined at 40 CFR 1700.5 in the 
regulatory text following this preamble. Based on the information in 
the record, these discharges exhibit a low potential for causing 
adverse impacts on the marine environment. Therefore, EPA and DOD have 
determined that it is not reasonable and practicable to require the use 
of MPCDs to mitigate adverse impacts on the marine environment. The 
preamble for the proposed rule (63 FR at 45318-45325) and the Technical 
Development Document describe each of these discharges and the reasons 
why MPCDs are not required.

               Table 2.--Discharges Exempted From Controls
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
Boiler Blowdown.
Catapult Wet Accumulator Discharge.
Cathodic Protection.
Freshwater Lay-up.
Mine Countermeasures Equipment Lubrication.
Portable Damage Control Drain Pump Discharge.
Portable Damage Control Drain Pump Wet Exhaust.
Refrigeration/Air Conditioning Condensate.
Rudder Bearing Lubrication.
Steam Condensate.
Stern Tube Seals and Underwater Bearing Lubrication.
Submarine Acoustic Countermeasures Launcher Discharge.

[[Page 25128]]

 
Submarine Emergency Diesel Engine Wet Exhaust.
Submarine Outboard Equipment Grease and External Hydraulics.
------------------------------------------------------------------------

    In developing this rule, EPA and DOD considered the seven factors 
listed at CWA 312(n)(2)(B) to determine whether a discharge requires 
control by a MPCD:
     The nature of the discharge;
     The environmental effects of the discharge;
     The practicability of using the MPCD;
     The effect that installing or using the MPCD would have on 
the operation or the operational capability of the vessel;
     Applicable U.S. law;
     Applicable international standards; and
     The economic costs of installing and using the MPCD.
    In making the determinations, EPA and DOD assessed each discharge 
for its potential to cause adverse impacts on the marine environment 
due to the chemical constituents present in the discharge (including 
bioaccumulative chemicals of concern), thermal pollution, or by 
introducing nonindigenous aquatic species. EPA and DOD conducted an 
extensive data gathering effort to characterize the nature of these 
discharges. This effort included surveys and consultations involving 
DOD and Coast Guard personnel with expertise in vessel operations and 
shipboard systems or equipment generating the discharges. The survey 
and consultation results were supplemented with sampling, where 
necessary. Details of these efforts are summarized in the preamble to 
the proposed rule and in the Technical Development Document. See 63 FR 
at 45305-45306.
    A detailed description of the assessment methodology is presented 
in the preamble for the proposed rule (63 FR at 45306-45307) and the 
Technical Development Document. The preamble for the proposed rule and 
the Technical Development Document also describe the results of the 
assessment and conclusions about the potential for each discharge to 
cause adverse impacts on the marine environment.
    For each discharge that was determined to have the potential to 
adversely impact the marine environment, EPA and DOD conducted an 
initial evaluation of the practicability, operational impact, and 
economic cost of using a MPCD to control each discharge. The results of 
the MPCD assessments are presented in the Technical Development 
Document.
    EPA and DOD first determined whether a control technology or 
management practice is currently in place to control the discharge for 
environmental protection on any vessel type. The use of existing 
controls on a vessel was considered sufficient demonstration that at 
least one reasonable and practicable control is available for at least 
one vessel type.
    For discharges without any existing pollution controls, EPA and DOD 
analyzed potential pollution control options to determine whether it is 
reasonable and practicable to require the use of MPCDs. For every 
discharge that was found to have a potential to cause adverse 
environmental effects, EPA and DOD identified at least one potential 
MPCD option that could mitigate the environmental impacts of the 
discharge from at least one class of Armed Forces vessel. Because of 
this, EPA and DOD determined for these discharges that it is reasonable 
and practicable to require a MPCD for at least one vessel type.
    This Phase I UNDS rule does not address whether existing control 
technologies or management practices are adequate to mitigate potential 
adverse impacts. Because of the diversity of vessel types and designs, 
these controls are usually not uniformly applied to all vessels 
generating the discharge. In addition, these existing controls do not 
necessarily represent the only control options available. In a future 
rulemaking (UNDS Phase II), EPA and DOD will perform a more detailed 
assessment of the MPCD control options available for each class of 
vessels and develop MPCD performance standards for the discharges 
requiring control. The Phase II rule may distinguish among vessel types 
and sizes, between new and existing vessels, and may determine that 
MPCD standards are not necessary or appropriate for a particular type 
or age of vessel. See CWA section 312(n)(3)(B) and (C).
    Under Executive Order 13089 (63 FR 32701, June 16, 1998), all 
Federal agencies whose actions may affect U.S. coral reef ecosystems 
shall identify these actions, and use their programs and authorities to 
protect and enhance the conditions of such ecosystems. This Phase I 
rule is only a preliminary step that simply identifies the discharges 
that will require control and the discharges that will not require 
control. This rule only makes a final decision for those 14 discharges 
that will not require controls. These 14 discharges were excluded from 
control because they exhibit a low potential for causing adverse 
impacts on the marine environment. Therefore, EPA and DOD have 
determined that this is not an action that will affect coral reef 
ecosystems. EPA and DOD will examine the effects of regulated UNDS 
discharges on coral reefs during Phase II of the UNDS rulemaking, which 
will establish performance standards for the 25 discharges identified 
in Phase I as requiring control.
    Under Executive Order 13112 (64 FR 6183, Feb 8, 1999), each Federal 
agency whose actions may affect the status of invasive species shall, 
to the extent practicable and permitted by law, identify such actions, 
and, subject to the availability of appropriations, use relevant 
programs and authorities to, among other things, prevent, detect, 
control, and monitor the introduction of invasive species. As discussed 
above, during Phase I of the UNDS process, we evaluated all discharges 
for the potential to introduce invasive species. Any discharges that 
were identified as having the potential for introducing invasive 
species are required by this rule to be controlled by an MPCD. During 
Phase II, we will consider the control of invasive species when setting 
standards for these discharges.

B. Effect on State and Local Laws and Regulations

    Today's rule affects State and local laws and regulations in 
several ways. Under CWA section 312(n)(6), States and their political 
subdivisions are prohibited from adopting or enforcing any State or 
local statute or regulation with respect to the discharges exempted 
from control (listed in Table 2) once this rule is in effect, other 
than to establish no-discharge zones for these discharges. States and 
their political subdivisions will be similarly prohibited from adopting 
or enforcing any statutes or regulations affecting the discharges 
requiring marine pollution control devices (listed in Table 1) once 
regulations governing MPCDs for those discharges are in effect.
    Second, this rule establishes the procedural mechanisms by which a 
State may petition EPA and DOD to review whether a discharge should be 
controlled by a MPCD. Finally, this rule codifies the process for 
establishing no-discharge zones (where any release of a

[[Page 25129]]

specified discharge is prohibited) where necessary to protect and 
enhance the quality of some or all of the waters within a State. These 
procedures, contained in 40 CFR 1700.6 through 1700.13, are discussed 
in the preamble for the proposed rule (63 FR at 45326-45328).

II. Legal Authority and Background

A. Clean Water Act Statutory Requirements

    This regulation is promulgated under the authority of section 312 
and 502 of the Clean Water Act (33 U.S.C. 1322 and 1362). The Assistant 
Secretary of the Navy has been delegated the authority and 
responsibility of the Secretary of Defense to develop Uniform National 
Discharge Standards pursuant to section 312 of the Clean Water Act, 
including authority to sign this final action.

B. Summary of Public Outreach and Consultation With States, Tribes, and 
Federal Agencies

    In developing this rule, EPA and DOD consulted with other 
interested Federal agencies, States, and environmental organizations. 
Other Federal agencies that have been involved in UNDS development 
include the Coast Guard (for the Department of Transportation), the 
Department of State, and the National Oceanic and Atmospheric 
Administration (for the Department of Commerce). The Coast Guard has 
been involved in all aspects of UNDS development. The other agencies 
have participated with the DOD, EPA, and the Coast Guard in the UNDS 
Executive Steering Committee, which is responsible for UNDS policy 
development and is composed of senior-level managers. Separately, the 
DOD and EPA have held discussions with the U.S. Fish and Wildlife 
Service and the National Marine Fisheries Service on UNDS matters.
    Two mechanisms have been used to consult with States. First, a 
representative from the Environmental Council of the States (ECOS) is a 
member of the Executive Steering Committee. ECOS is the national 
association of State and territorial environmental commissioners and 
has been established, in part, to provide State positions on 
environmental issues to EPA. Second, representatives from the Navy (as 
the lead for the DOD), EPA, and the Coast Guard met with each State 
expressing an interest in the UNDS development. Information on 
participation of States in the consultation meetings and the subjects 
discussed is presented in the Technical Development Document and 
supporting documents in the public record for this rule. See ``Uniform 
National Discharge Standards (UNDS) State Consultation Meetings (Round 
#1) Compendium of Minutes'' and ``Uniform National Discharge Standards 
(UNDS) Consultation Meetings (Round #2) Compendium of Minutes.''
    The Navy and EPA publish a newsletter that contains feature 
articles on UNDS-related subjects (e.g., nonindigenous species, Navy 
research and development programs), provides answers to frequently 
asked questions, and provides an update on recent progress and upcoming 
events. The newsletter is mailed to State and environmental group 
representatives, Armed Forces and EPA contacts, and interested members 
of the general public. The Navy also maintains an UNDS web site on the 
Internet (http://206.5.146.100/n45/doc/unds/unds.html) that provides 
UNDS legislative information, a summary of the technical and management 
approach to rule development, and a description of the benefits 
expected to result from the development of UNDS.
    In August 1998, EPA and DOD also sent an informational letter and 
fact sheet on UNDS to members of EPA's Tribal Operations Committee and 
38 intertribal organizations. The Tribal Operations Committee is 
comprised of 19 Tribal leaders or their Environmental Program Managers 
(referred to as the ``Tribal Caucus'') and EPA's Senior Leadership 
Team, including the Administrator, the Deputy Administrator and EPA's 
Assistant Administrators and Regional Administrators.

III. Description of Armed Forces Vessels

    Section 312(a)(14) of the CWA, as amended by the National Defense 
Authorization Act of 1996, defines a vessel of the Armed Forces as 
``(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 [owned or operated by the DOD].'' Section 
312 of the CWA defines new vessel and existing vessel as every 
description of watercraft or other artificial contrivance used, or 
capable of being used, as a means of transportation on the navigable 
waters of the United States. See CWA sections 312(a)(1) and 312(a)(2). 
Also see 40 CFR 140.1(d).
    The scope of the UNDS legislation addresses incidental discharges 
from over 7,000 vessels (i.e., ships, submarines, and small boats and 
craft) of differing designs and mission requirements. The Armed Forces 
that operate vessels subject to UNDS include the Navy, Military Sealift 
Command, Army, Marine Corps, Air Force, and Coast Guard. Table 3 
summarizes the number of vessels operated by each of these branches of 
the Armed Forces as of August 1997. Armed Forces vessels and their 
operating locations are discussed in more detail in the Technical 
Development Document and in the preamble to the proposed rule. See 63 
FR at 45302-45304.
    This rule applies only to Armed Forces vessels. This rule does not 
apply to commercial vessels; privately owned vessels; vessels owned or 
operated by State, local, or tribal governments; vessels under the 
jurisdiction of the Army Corps of Engineers; vessels, other than those 
of the Coast Guard, under the jurisdiction of the Department of 
Transportation; vessels owned or operated by other Federal agencies 
that are not part of the Armed Forces; vessels preserved as memorials 
and museums; time- and voyage-chartered vessels; vessels under 
construction; vessels in drydock; and amphibious vehicles. For 
additional discussion regarding the types of vessels that are beyond 
the scope of this rule, see the Technical Development Document.

         Table 3.--Number of Armed Forces Vessels (August 1997)
------------------------------------------------------------------------
                                                               Number of
                    Branch of armed forces                      vessels
------------------------------------------------------------------------
Navy.........................................................      4,760
Military Sealift Command.....................................         57
Army.........................................................        334
Marine Corps.................................................        538
Air Force....................................................         36
Coast Guard..................................................      1,445
                                                              ----------
    Total:...................................................      7,170
------------------------------------------------------------------------

IV. Developments Since Proposal

A. Peer Review

    A technical report was prepared for each of the discharges covered 
by this rule. These Nature of Discharge (NOD) reports include a 
discussion of how the discharge is generated, discharge volumes and 
frequencies, where the discharge occurs, chemical constituents present 
in the discharge, and relevant regulatory information. The NOD reports 
also present an assessment of the potential for a discharge to cause an 
adverse impact on the marine environment. NOD reports for each 
discharge are included as an appendix

[[Page 25130]]

to the Technical Development Document.
    NOD reports for five discharges were selected for peer review. Peer 
reviewers were asked whether the data and process information presented 
in the NOD reports are sufficient to characterize the discharges; 
whether the analyses are appropriate for the discharges; and whether 
the conclusions regarding the discharges' potential for causing adverse 
environmental impacts are supported by the information presented in the 
NOD reports.
    Comments submitted by the peer reviewers are compiled in the ``Peer 
Review Comments Document for Nature of Discharge Reports,'' which is in 
the rulemaking record. Specific responses to peer review comments and 
how those comments were addressed in developing the final rule are 
provided in the document titled ``Uniform National Discharge Standards 
for Vessels of the Armed Forces Phase I Response to Peer Review 
Comments.'' Except as discussed below, the changes resulting from peer 
review were largely editorial.
    Upon reviewing the comments, EPA and DOD reassessed the steam 
condensate discharge by comparing the constituent concentrations to 
chronic, rather than acute, water quality criteria because the 
discharge can be either intermittent or continuous. The constituents 
exceeding the chronic criteria are the same as those exceeding the 
acute water quality criteria. As discussed in the preamble to the 
proposed rule, EPA and DOD determined that because of the low mass 
loadings released in the discharge (a fleetwide total of 49 lbs/year 
copper and 28 lbs/year nickel; the mass discharged in any given port is 
only a fraction of that total), the steam condensate discharge has a 
low potential to cause an adverse impact on the marine environment. 
Comparing the steam condensate discharge to chronic water quality 
criteria does not change this conclusion.
    Several comments addressed the thermal analysis of the steam 
condensate discharge. The potential for adverse thermal impacts from 
the steam condensate discharge is discussed below in section IV.B.2 of 
the preamble.

B. Public Comments

    Only two letters providing comments on the proposed rule were 
received--both from States. The most significant of these comments 
addressed:
     The types of MPCDs that should be considered in setting 
performance standards or the constituents the MPCDs should be designed 
to remove;
     The methodology used in Phase I to assess the potential 
for discharges to cause adverse impacts on the marine environment;
     The relationship of UNDS to the establishment of total 
maximum daily loads (TMDLs) for waterbodies and the imposition of 
wasteload allocations; and
     The exclusion of National Defense Reserve Fleet vessels 
from UNDS requirements.
    A detailed discussion of EPA and DOD's responses to the comments on 
the proposed rule is provided in ``Response to Public Comments on 
Proposed Uniform National Discharge Standards, Phase I,'' which is in 
the rulemaking record. An overview of the more significant comments is 
presented below.
1. MPCD Design
    The comments regarding MPCDs generally raised issues that will be 
addressed during the development of the Phase II rule and are beyond 
the scope of this Phase I rule. For example, the comments suggested 
that pierside MPCDs should be considered during the development of UNDS 
and identified certain constituents that MPCDs should be designed to 
remove (i.e., pathogens in graywater, and non-indigenous aquatic 
species in dirty ballast water and compensated fuel ballast water). In 
UNDS Phase II, EPA and DOD will perform a more detailed assessment of 
the MPCD control options available for each class of vessels and 
promulgate MPCD performance standards for the discharges requiring 
control.
2. Environmental Assessment Methodology
    With respect to the comments about the environmental assessment 
methodology used for this rule, EPA and DOD believe that the analyses 
performed for this rule are consistent with the requirements of CWA 
section 312(n) and are sufficient for the purpose of determining which 
discharges should require the use of a MPCD to mitigate adverse impacts 
on the marine environment, and to determine for which discharges it is 
not reasonable and practicable to require the use of a MPCD to mitigate 
adverse impacts on the marine environment.
    In response to public and peer review comments regarding the 
hydrodynamic model used to evaluate the thermal effects from steam 
condensate discharges, EPA and DOD reanalyzed the discharge plume 
characteristics. First, EPA and DOD reassessed the thermal effects 
model used at proposal to confirm that accurate values had been used 
for input parameters such as current velocity and air temperature. This 
review identified several instances where overly conservative values 
had been used at proposal (e.g., information in the record shows that a 
more accurate discharge temperature for modeling thermal effects is 
180 deg.F rather than the original 212 deg.F), resulting in overstating 
the thermal effects. EPA and DOD corrected these values in its modeling 
for the final rule, as discussed in detail in the comment response 
documents for public and peer review comments, and in the Technical 
Development Document.
    EPA and DOD also used a more sophisticated model capable of 
predicting the plume size and temperature, taking into account factors 
(e.g., tidal effects and turbulent mixing in the water body) that are 
not adequately taken into account by the model used at proposal. This 
hydrodynamic and transport model, CH3D, predicts the thermal plume from 
an aircraft carrier will extend no more than 80 meters from the 
discharge pipe along the length of the vessel (not extending beyond the 
end of the ship) and 30 meters away from the vessel.
    The thermal plume from other ships typically docked in Bremerton, 
Washington was also reassessed using these corrected values. The model 
results indicate that these ships will not generate a thermal plume 
exceeding Washington State thermal criteria, and that aircraft carriers 
are the only vessels that may exceed criteria.
    Both the original and more sophisticated models continue to 
overestimate the size of the thermal plume because they do not account 
adequately for either the mixing that initially occurs as the discharge 
enters the receiving water or the loss of heat to the atmosphere. 
However, EPA and DOD note that for an aircraft carrier, the predicted 
plume would cover only about 5% of the width and 2% of the length (less 
than 0.1% of the total surface area) of the inlet where the ships are 
docked. Such a localized plume would have a low potential for 
interfering with the passage of aquatic organisms in the water body and 
would have a limited impact on the organisms that reside near the water 
surface. In addition, because the discharge is freshwater (no salinity) 
and warmer than the receiving water, the plume floats along the surface 
of the water and has no significant impact on bottom-dwelling 
organisms. Therefore, the steam condensate discharge has a low 
potential to cause adverse impacts on the marine environment and the 
discharge does not require control by a MPCD.

[[Page 25131]]

3. TMDL/Wasteload Allocations
    One commenter asserted that, where Armed Forces vessels are 
identified as sources contributing to violations of water quality 
standards, States should be allowed to impose a wasteload allocation to 
Armed Forces vessels even if it causes the vessels to install pollution 
control devices not identified by uniform national discharge standards. 
EPA and DOD disagree with the commenter's assertion. Even though Armed 
Forces vessels may discharge chemical substances for which TMDLs are 
being written, section 312(n)(6) of the CWA preempts States from 
regulating these discharges once the UNDS regulations are effective, 
including issuing a wasteload allocation (WLA) for these discharges. A 
State, however, may avail itself of the provisions in CWA section 
312(n)(7) to establish a no-discharge zone, either through State 
prohibition or EPA prohibition (see 40 CFR 1700.7-1700.10).
    It is also noted that the UNDS legislation amended the CWA to 
exclude from the definition of ``pollutant'' a ``discharge incidental 
to the normal operation of a vessel of the Armed Forces'' within the 
meaning of section 312 of the CWA. CWA Sec. 502(6). Because CWA section 
303(d)(1)(C) provides that States establish TMDLs for ``pollutants'' 
which the Administrator identifies under section 402(a)(2) as suitable 
for such calculation, and because Armed Forces vessel discharges are 
not ``pollutants'' as that term is defined in the CWA, EPA and DOD 
interpret the CWA to mean that TMDLs may not be written for discharges 
incidental to the normal operation of a vessel of the Armed Forces.
4. National Defense Reserve Fleet (NDRF) Vessels
    In its comments, one State questioned the reason for excluding NDRF 
vessels from the requirements of UNDS. Under CWA section 312(a)(14), a 
vessel owned or operated by the Department of Transportation is not 
defined as a ``vessel of the Armed Forces''--and thus is not subject to 
uniform national discharge standards--unless it has been designated by 
the Secretary of Transportation as being ``a vessel equivalent to a 
vessel [owned or operated by the Department of Defense].'' NDRF vessels 
are owned or operated by the Department of Transportation, and they 
have not been designated by the Secretary of Transportation as being 
equivalent to vessels owned or operated by DOD. Consequently, NDRF 
vessels are not vessels of the Armed Forces, as defined by the statute, 
and they are not subject to uniform national discharge standards.

V. Related Acts of Congress and Executive Orders

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, Oct. 4, 1993), EPA and 
DOD must determine whether the regulatory action is ``significant'' and 
therefore subject to OMB review and the requirements of the Executive 
Order. The Order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may: (1) have an annual effect on 
the economy of $100 million or more or adversely affect in a material 
way the economy, a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
tribal governments or communities; (2) create a serious inconsistency 
or otherwise interfere with an action taken or planned by another 
agency; (3) materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or (4) raise novel legal or policy issues arising 
out of legal mandates, the President's priorities, or the principles 
set forth in the Executive Order.
    It has been determined that this Phase I rule is not a 
``significant regulatory action'' under the terms of Executive Order 
12866 and is therefore not subject to OMB review.

B. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under Section 202 of UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, Section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of Section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
Section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Today's rule contains no Federal mandates 
(under the regulatory provisions of Title II of the UMRA) for State, 
local, or tribal governments or the private sector. The rule imposes no 
enforceable duty on any State, local, or tribal governments or the 
private sector. Thus today's rule is not subject to the requirements of 
Sections 202 and 205 of the UMRA.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under Section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with regulatory requirements. EPA has 
determined that this rule contains no regulatory requirements that 
might significantly or uniquely affect small governments. This rule 
does not significantly or uniquely affect small governments because the 
preemption that occurs after promulgation of this rule applies to both 
large governments (States) as well as their political subdivisions 
(which would include small governments). Further, the preemption 
originates from the CWA rather than this rule. Finally, the no-
discharge zone procedures in the rule would apply only to States, not 
their political subdivisions. Thus, this rule is not subject to the 
requirements of Section 203 of the UMRA. Nevertheless, as described 
elsewhere in this preamble and in the record for the rule, DOD and EPA 
sought meaningful and timely input from States and localities on this 
rule.

C. Executive Order 12875: Enhancing the Intergovernmental Partnership

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a State, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to the Office 
of Management and Budget a

[[Page 25132]]

description of the extent of EPA's prior consultation with 
representatives of affected State, local and tribal governments, the 
nature of their concerns, any written communications from the 
governments, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 12875 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of State, local and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create a mandate on State, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. The rule applies to vessels of the Armed Forces. Accordingly, 
the requirements of section 1(a) of Executive Order 12875 do not apply 
to this rule.

D. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. As previously discussed, this 
rule does not impose any mandates on tribal governments. Further, as 
discussed elsewhere in this preamble and the record to the rule, EPA 
and DOD do not anticipate any significant or unique effects to 
communities of Indian tribal governments. Accordingly, the requirements 
of section 3(b) of Executive Order 13084 do not apply to this rule.

E. Regulatory Flexibility Act, as Amended by the Small Business 
Regulatory Enforcement Fairness Act

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA), EPA and DOD generally are required to prepare a regulatory 
flexibility analysis describing the impact of the regulatory action on 
small entities as part of rulemaking. However, under section 605(b) of 
the RFA, if the Administrator of EPA and the Secretary of Defense 
certify that the rule will not have a significant economic impact on a 
substantial number of small entities, EPA and DOD are not required to 
prepare that analysis. The RFA recognizes three kinds of small 
entities, and defines them as follows: (1) Small governmental 
jurisdictions: any government of a district with a population of less 
than 50,000; (2) Small business: any business which is independently 
owned and operated and not dominant in its field, as defined by the 
Small Business Administration regulations under the Small Business Act; 
and (3) Small organization: any not for profit enterprise that is 
independently owned and operated and not dominant in its field. This 
Phase I rule addresses discharges from vessels of the Armed Forces and 
imposes information collection requirements on States that wish to 
establish no-discharge zones or petition the Secretary of Defense and 
the Administrator to review a determination regarding the need for a 
marine pollution control device or a standard issued under Phase II of 
the rule. Small entities are not affected by this rule. Pursuant to 
section 605(b) of the RFA, the Administrator and the Secretary certify 
that this Phase I rule will not have a significant economic impact on a 
substantial number of small entities.

F. Paperwork Reduction Act

    The Office of Management and Budget (OMB) has approved the 
information collection requirements contained in this rule under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., as 
an amendment to the collection assigned OMB control number 2040-0187. 
There were no OMB or public comments on this information collection 
request.
    There are three information collections associated with this rule, 
each of which is required by statute in order for a State to obtain a 
benefit. Each information collection is discussed separately below 
(including authority and projected annual hour and cost burdens). The 
total projected annual hour burden for all three information 
collections is 958 hours; the projected annual cost burden is $31,871.
    In order for a State to establish a No-discharge Zone (NDZ) by 
State prohibition, EPA must make the following determinations: (i) that 
adequate facilities for the safe and sanitary removal of the discharge 
are reasonably available for the waters to which the prohibition would 
apply; and (ii) that 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 (see CWA section 312(n)(7)(A), 33 U.S.C. 
1322(n)(7)(A)). The State must provide EPA enough information to be 
able to make those determinations. The specific information being 
requested is listed in 40 CFR 1700.9(a). The information requested from 
the State will be used by EPA to make the determinations it is required 
to make by law in order for a State prohibition to be effective.
    The projected annual hour burden for requests by a State to EPA to 
make the determinations required for the State to establish a NDZ by 
State prohibition is 717 hours (with an average of 179.25 burden hours 
per response and an estimated 4 respondents per year). The projected 
annual cost burden is $23,815 (with an average of $23,215 for labor, $0 
for capital and start-up costs, $600 for operation and maintenance, and 
$0 for the purchase of services).
    In order for EPA to establish a NDZ by EPA prohibition (upon 
application of a State), EPA must make the following determinations: 
(i) that the protection and enhancement of the quality of the specified 
waters require a prohibition of the discharge; (ii) that adequate 
facilities for the safe and sanitary removal of the discharge are 
reasonably available for the waters to which the prohibition would 
apply; and (iii) that 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 (see CWA section 312(n)(7)(B), 33 U.S.C. 
1322(n)(7)(B)). The State must provide EPA enough information to be 
able to make those determinations. The specific information being 
requested is listed in 40 CFR 1700.10(a). The information requested 
from the State will be used by EPA to make the determinations it is

[[Page 25133]]

required to make by law in order to establish a NDZ.
    The projected annual hour burden for applications by a State to EPA 
to establish a NDZ by EPA prohibition is 194.25 hours (with an average 
of 194.25 burden hours per response and an estimated 1 respondent per 
year). The projected annual cost burden is $6,478 (with an average of 
$6,328 for labor, $0 for capital and start-up costs, $150 for operation 
and maintenance, and $0 for the purchase of services).
    The Governor of any State may request EPA and the Secretary of 
Defense to review (i) a determination of whether an UNDS discharge 
requires a control, or (ii) a standard of performance for a control on 
an UNDS discharge, by submitting a petition which discusses significant 
new scientific and technical information that could reasonably result 
in a change to the determination or standard (see CWA section 
312(n)(5)(D), 33 U.S.C. 1322(n)(5)(D)). The State must provide EPA this 
information and a discussion of how the information is relevant to one 
or more of the seven factors which EPA and the Secretary of Defense are 
required to consider in making these determinations and standards (see 
CWA section 312(n)(2)(B), 33 U.S.C. 1322(n)(2)(B)). These requirements 
are listed in 40 CFR 1700.12. The information requested from the State 
will be used by EPA and the Secretary of Defense in order to review any 
determinations and standards promulgated under UNDS.
    The projected annual hour burden for petitions from a State to EPA 
and DOD to review a determination or standard is 46.25 hours (with an 
average of 46.25 burden hours per response and an estimated 1 
respondent per year). The projected annual cost burden is $1,578 (with 
an average of $1,428 for labor, $0 for capital and start-up costs, $150 
for operation and maintenance, and $0 for the purchase of services).
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15. EPA is 
amending the table in 40 CFR part 9 of currently approved ICR control 
numbers issued by OMB for various regulations to list the information 
requirements contained in this final rule.

G. Executive Order 13045

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    EPA interprets E.O. 13045 as applying only to those regulatory 
actions that are based on health or safety risks, such that the 
analysis required under section 5-501 of the Order has the potential to 
influence the regulation. This rule is not subject to E.O. 13045 
because it is not economically significant under E.O. 12866 and it does 
not establish an environmental standard intended to mitigate health or 
safety risks.

H. Endangered Species Act

    EPA and DOD have discussed the applicability of the Endangered 
Species Act (ESA) to the three phases of the Uniform National Discharge 
Standards rulemaking with the U.S. Fish and Wildlife Service and 
National Marine Fisheries Service. As Phase I is a preliminary step, 
simply identifying the discharges that will require control and the 
discharges that will not require control, the U.S. Fish and Wildlife 
Service and the National Marine Fisheries Service have agreed that the 
consultation requirements of section 7 of the ESA do not apply to this 
rule. If EPA and DOD determine that Phase II may affect listed species, 
EPA and DOD will initiate consultation during Phase II of the UNDS 
rulemaking, which will establish performance standards for the 
discharges identified in Phase I as requiring control.

I. National Technology Transfer and Advancement Act

    Under section 12(d) of the National Technology Transfer and 
Advancement Act (NTTAA), EPA and DOD are required to use voluntary 
consensus standards in their regulatory activities unless to do so 
would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, business practices, 
etc.) that are developed or adopted by voluntary consensus standards 
bodies. Where available and potentially applicable voluntary consensus 
standards are not used by EPA or DOD, the Act requires the Agency and 
Department to provide Congress, through the Office of Management and 
Budget, an explanation of the reasons for not using such standards.
    EPA and DOD find that this rule does not address any technical 
standards subject to the NTTAA. It simply addresses which discharges 
would or would not require a MPCD.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective June 9, 1999.

Appendix to the Preamble--Abbreviations, Acronyms, and Other Terms 
Used in This Document

Administrator--The Administrator of the U.S. Environmental Protection 
Agency
CFR--U.S. Code of Federal Regulations
Clean Water Act--The Federal Water Pollution Control Act Amendments of 
1972 (33 U.S.C. 1251 et seq.)
CWA--Clean Water Act
DOD--U.S. Department of Defense

[[Page 25134]]

EPA--U.S. Environmental Protection Agency
MPCD--Marine pollution control device
NDRF--National Defense Reserve Fleet
No-discharge zone--An area of water into which one or more specified 
discharges is prohibited, as established under procedures set forth in 
40 CFR 1700.7 to 1700.10
UNDS--Uniform national discharge standards

List of Subjects

40 CFR Part 9

    Environmental protection, Reporting and recordkeeping requirements.

40 CFR Part 1700

    Environmental protection, Armed Forces, Vessels, Coastal zone, 
Reporting and recordkeeping requirements, Water pollution control.

    Dated: April 27, 1999.
Carol M. Browner,
Administrator, Environmental Protection Agency.

    Dated: April 7, 1999.
Robert B. Pirie, Jr.,
Assistant Secretary of the Navy (Installations and Environment).

    For the reasons set forth in the preamble, EPA amends 40 CFR 
Chapter I and EPA and DOD establish 40 CFR chapter VII of the Code of 
Federal Regulations consisting of part 1700 as follows:

CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY

PART 9--[AMENDED]

    1. The authority citation for part 9 continues to read as follows:

    Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003, 
2005, 2006. 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 
U.S.C. 1251 et seq.,1311, 1313d, 1314, 1318, 1321, 1326, 1330, 1342, 
1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-
1975 Comp. P.973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g-1, 
300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 300j-3, 
300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 9601-
9657, 11023, 11048.

40 CFR CHAPTER VII--ENVIRONMENTAL PROTECTION AGENCY AND DEPARTMENT OF 
DEFENSE

    2. In Sec. .9.1 the table is amended by adding a new heading with 
an entry in numerical order to read as follows:


Sec. .9.1  OMB approvals under the Paperwork Reduction Act.

* * * * *

------------------------------------------------------------------------
                                                             OMB control
                      40 CFR citation                            No.
------------------------------------------------------------------------
 
       *        *        *          *          *        *        *
------------------------------------------------------------------------
   Uniform National Discharge Standards for Vessels of the Armed Forces
------------------------------------------------------------------------
1700.9-1700.12.............................................    2040-0187
 
       *        *        *          *          *        *        *
------------------------------------------------------------------------

    3. Chapter VII consisting of Part 1700 is established to read 
follows:

CHAPTER VII--ENVIRONMENTAL PROTECTION AGENCY AND DEPARTMENT OF DEFENSE; 
UNIFORM NATIONAL DISCHARGE STANDARDS FOR VESSELS OF THE ARMED FORCES

PART 1700--UNIFORM NATIONAL DISCHARGE STANDARDS FOR VESSELS OF THE 
ARMED FORCES

Subpart A--Scope

Sec.
1700.1  Applicability.
1700.2  Effect.
1700.3  Definitions.

Subpart B--Discharge Determinations

1700.4  Discharges requiring control.
1700.5  Discharges not requiring control.

Subpart C--Effect on States

1700.6  Effect on State and local statutes and regulations.

No-Discharge Zones

1700.7  No-discharge zones.
1700.8  Discharges for which no-discharge zones can be established.
1700.9  No-discharge zones by State prohibition.
1700.10  No-discharge zones by EPA prohibition.

State Petition for Review

1700.11  State petition for review of determinations or standards.
1700.12  Petition requirements.
1700.13  Petition decisions.

Subpart D--Marine Pollution Control Device (MPCD) Performance Standards

1700.14  Marine Pollution Control Device (MPCD) Performance 
Standards. [reserved]

    Authority: 33 U.S.C. 1322, 1361.

Subpart A--Scope


Sec. 1700.1  Applicability.

    (a) This part applies to the owners and operators of Armed Forces 
vessels, except where the Secretary of Defense finds that compliance 
with this part is not in the interest of the national security of the 
United States. This part does not apply to vessels while they are under 
construction, vessels in drydock, amphibious vehicles, or vessels under 
the jurisdiction of the Department of Transportation other than those 
of the Coast Guard.
    (b) This part also applies to States and political subdivisions of 
States.


Sec. 1700.2  Effect.

    (a) This part identifies those discharges, other than sewage, 
incidental to the normal operation of Armed Forces vessels that require 
control within the navigable waters of the United States and the waters 
of the contiguous zone, and those discharges that do not require 
control. Discharges requiring control are identified in Sec. 1700.4. 
Discharges not requiring control are identified in Sec. 1700.5. Federal 
standards of performance for each required Marine Pollution Control 
Device are listed in Sec. 1700.14. This part is not applicable beyond 
the contiguous zone.
    (b) This part prohibits States and their political subdivisions 
from adopting or enforcing State or local statutes or regulations 
controlling the discharges from Armed Forces vessels listed in 
Secs. 1700.4 and 1700.5 according to the timing provisions in 
Sec. 1700.6, except to establish a no-discharge zone by State 
prohibition in accordance with Sec. 1700.9, or to apply for a no-
discharge zone by EPA prohibition in accordance with Sec. 1700.10. This 
part also provides a mechanism for States to petition the Administrator 
and the Secretary to review a determination of whether a discharge 
requires control, or to review a Federal standard of performance for a 
Marine Pollution Control Device, in accordance with Secs. 1700.11 
through 1700.13.


Sec. 1700.3  Definitions.

    Administrator means the Administrator of the United States 
Environmental Protection Agency or that person's authorized 
representative.
    Armed Forces vessel means a vessel owned or operated by the United 
States Department of Defense or the United States Coast Guard, other 
than vessels that are time or voyage chartered by the Armed Forces, 
vessels of the U.S. Army Corps of Engineers, or vessels that are 
memorials or museums.
    Discharge incidental to the normal operation of a vessel means a 
discharge, including, but not limited to: graywater, bilgewater, 
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,

[[Page 25135]]

preservative, or absorptive application to the hull of a vessel; and a 
discharge in connection with the testing, maintenance, and repair of 
any of the aforementioned systems whenever the vessel is waterborne, 
including pierside. A discharge incidental to normal operation does not 
include:
    (1) Sewage;
    (2) A discharge of rubbish, trash, or garbage;
    (3) A discharge of air emissions resulting from the operation of a 
vessel propulsion system, motor driven equipment, or incinerator;
    (4) A discharge that requires a National Pollutant Discharge 
Elimination System (NPDES) permit under the Clean Water Act; or
    (5) A discharge containing source, special nuclear, or byproduct 
materials regulated by the Atomic Energy Act.
    Environmental Protection Agency, abbreviated EPA, means the United 
States Environmental Protection Agency.
    Marine Pollution Control Device, abbreviated MPCD, means any 
equipment or management practice installed or used on an Armed Forces 
vessel that is designed to receive, retain, treat, control, or 
discharge a discharge incidental to the normal operation of a vessel, 
and that is determined by the Administrator and Secretary to be the 
most effective equipment or management practice to reduce the 
environmental impacts of the discharge consistent with the 
considerations in Clean Water Act section 312(n)(2)(B).
    No-discharge zone means an area of specified waters established 
pursuant to this regulation into which one or more specified discharges 
incidental to the normal operation of Armed Forces vessels, whether 
treated or untreated, are prohibited.
    Secretary means the Secretary of the United States Department of 
Defense or that person's authorized representative.
    United States includes the States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, 
the Canal Zone, and the Trust Territory of the Pacific Islands.
    Vessel includes every description of watercraft or other artificial 
contrivance used, or capable of being used, as a means of 
transportation on navigable waters of the United States or waters of 
the contiguous zone, but does not include amphibious vehicles.

Subpart B--Discharge Determinations


Sec. 1700.4  Discharges requiring control.

    For the following discharges incidental to the normal operation of 
Armed Forces vessels, the Administrator and the Secretary have 
determined that it is reasonable and practicable to require use of a 
Marine Pollution Control Device for at least one class of vessel to 
mitigate adverse impacts on the marine environment:
    (a) Aqueous Film-Forming Foam: the firefighting foam and seawater 
mixture discharged during training, testing, or maintenance operations.
    (b) Catapult Water Brake Tank & Post-Launch Retraction Exhaust: the 
oily water skimmed from the water tank used to stop the forward motion 
of an aircraft carrier catapult, and the condensed steam discharged 
when the catapult is retracted.
    (c) Chain Locker Effluent: the accumulated precipitation and 
seawater that is emptied from the compartment used to store the 
vessel's anchor chain.
    (d) Clean Ballast: the seawater taken into, and discharged from, 
dedicated ballast tanks to maintain the stability of the vessel and to 
adjust the buoyancy of submarines.
    (e) Compensated Fuel Ballast: the seawater taken into, and 
discharged from, ballast tanks designed to hold both ballast water and 
fuel to maintain the stability of the vessel.
    (f) Controllable Pitch Propeller Hydraulic Fluid: the hydraulic 
fluid that discharges into the surrounding seawater from propeller 
seals as part of normal operation, and the hydraulic fluid released 
during routine maintenance of the propellers.
    (g) Deck Runoff: the precipitation, washdowns, and seawater falling 
on the weather deck of a vessel and discharged overboard through deck 
openings.
    (h) Dirty Ballast: the seawater taken into, and discharged from, 
empty fuel tanks to maintain the stability of the vessel.
    (i) Distillation and Reverse Osmosis Brine: the concentrated 
seawater (brine) produced as a byproduct of the processes used to 
generate freshwater from seawater.
    (j) Elevator Pit Effluent: the liquid that accumulates in, and is 
discharged from, the sumps of elevator wells on vessels.
    (k) Firemain Systems: the seawater pumped through the firemain 
system for firemain testing, maintenance, and training, and to supply 
water for the operation of certain vessel systems.
    (l) Gas Turbine Water Wash: the water released from washing gas 
turbine components.
    (m) Graywater: galley, bath, and shower water, as well as 
wastewater from lavatory sinks, laundry, interior deck drains, water 
fountains, and shop sinks.
    (n) Hull Coating Leachate: the constituents that leach, dissolve, 
ablate, or erode from the paint on the hull into the surrounding 
seawater.
    (o) Motor Gasoline and Compensating Discharge: the seawater taken 
into, and discharged from, motor gasoline tanks to eliminate free space 
where vapors could accumulate.
    (p) Non-Oily machinery wastewater: the combined wastewater from the 
operation of distilling plants, water chillers, valve packings, water 
piping, low- and high-pressure air compressors, and propulsion engine 
jacket coolers.
    (q) Photographic Laboratory Drains: the laboratory wastewater 
resulting from processing of photographic film.
    (r) Seawater Cooling Overboard Discharge: the discharge of seawater 
from a dedicated system that provides noncontact cooling water for 
other vessel systems.
    (s) Seawater Piping Biofouling Prevention: the discharge of 
seawater containing additives used to prevent the growth and attachment 
of biofouling organisms in dedicated seawater cooling systems on 
selected vessels.
    (t) Small Boat Engine Wet Exhaust: the seawater that is mixed and 
discharged with small boat propulsion engine exhaust to cool the 
exhaust and quiet the engine.
    (u) Sonar Dome Discharge: the leaching of antifoulant materials 
into the surrounding seawater and the release of seawater or freshwater 
retained within the sonar dome.
    (v) Submarine Bilgewater: the wastewater from a variety of sources 
that accumulates in the lowest part of the submarine (i.e., bilge).
    (w) Surface Vessel Bilgewater/Oil-Water Separator Effluent: the 
wastewater from a variety of sources that accumulates in the lowest 
part of the vessel (the bilge), and the effluent produced when the 
wastewater is processed by an oil water separator.
    (x) Underwater Ship Husbandry: the materials discharged during the 
inspection, maintenance, cleaning, and repair of hulls performed while 
the vessel is waterborne.
    (y) Welldeck Discharges: the water that accumulates from seawater 
flooding of the docking well (welldeck) of a vessel used to transport, 
load, and unload amphibious vessels, and from maintenance and 
freshwater washings of the welldeck and equipment and vessels stored in 
the welldeck.


Sec. 1700.5  Discharges not requiring control.

    For the following discharges incidental to the normal operation of 
Armed Forces vessels, the Administrator and the Secretary have

[[Page 25136]]

determined that it is not reasonable or practicable to require use of a 
Marine Pollution Control Device to mitigate adverse impacts on the 
marine environment:
    (a) Boiler Blowdown: the water and steam discharged when a steam 
boiler is blown down, or when a steam safety valve is tested.
    (b) Catapult Wet Accumulator Discharge: the water discharged from a 
catapult wet accumulator, which stores a steam/water mixture for 
launching aircraft from an aircraft carrier.
    (c) Cathodic Protection: the constituents released into surrounding 
water from sacrificial anode or impressed current cathodic hull 
corrosion protection systems.
    (d) Freshwater Lay-up: the potable water that is discharged from 
the seawater cooling system while the vessel is in port, and the 
cooling system is in lay-up mode (a standby mode where seawater in the 
system is replaced with potable water for corrosion protection).
    (e) Mine Countermeasures Equipment Lubrication: the constituents 
released into the surrounding seawater by erosion or dissolution from 
lubricated mine countermeasures equipment when the equipment is 
deployed and towed.
    (f) Portable Damage Control Drain Pump Discharge: the seawater 
pumped through the portable damage control drain pump and discharged 
overboard during testing, maintenance, and training activities.
    (g) Portable Damage Control Drain Pump Wet Exhaust: the seawater 
mixed and discharged with portable damage control drain pump exhaust to 
cool the exhaust and quiet the engine.
    (h) Refrigeration and Air Conditioning Condensate: the drainage of 
condensed moisture from air conditioning units, refrigerators, 
freezers, and refrigerated spaces.
    (i) Rudder Bearing Lubrication: the oil or grease released by the 
erosion or dissolution from lubricated bearings that support the rudder 
and allow it to turn freely.
    (j) Steam Condensate: the condensed steam discharged from a vessel 
in port, where the steam originates from port facilities.
    (k) Stern Tube Seals and Underwater Bearing Lubrication: the 
seawater pumped through stern tube seals and underwater bearings to 
lubricate and cool them during normal operation.
    (l) Submarine Acoustic Countermeasures Launcher Discharge: the 
seawater that is mixed with acoustic countermeasure device propulsion 
gas following a countermeasure launch that is then exchanged with 
surrounding seawater, or partially drained when the launch assembly is 
removed from the submarine for maintenance.
    (m) Submarine Emergency Diesel Engine Wet Exhaust: the seawater 
that is mixed and discharged with submarine emergency diesel engine 
exhaust to cool the exhaust and quiet the engine.
    (n) Submarine Outboard Equipment Grease and External Hydraulics: 
the grease released into the surrounding seawater by erosion or 
dissolution from submarine equipment exposed to seawater.

Subpart C--Effect on States


Sec. 1700.6  Effect on State and local statutes and regulations.

    (a) After the effective date of a final rule determining 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 an Armed Forces vessel, States or political 
subdivisions of States may not adopt or enforce any State or local 
statute or regulation, including issuance or enforcement of permits 
under the National Pollutant Discharge Elimination System, controlling 
that discharge, except that States may establish a no-discharge zone by 
State prohibition (as provided in Sec. 1700.9), or apply for a no-
discharge zone by EPA prohibition (as provided in Sec. 1700.10).
    (b)(1) After the effective date of a final rule determining that it 
is reasonable and practicable to require use of a Marine Pollution 
Control Device regarding a particular discharge incidental to the 
normal operation of an Armed Forces vessel, States may apply for a no-
discharge zone by EPA prohibition (as provided in Sec. 1700.10) for 
that discharge.
    (2) After the effective date of a final rule promulgated by the 
Secretary governing the design, construction, installation, and use of 
a Marine Pollution Control Device for a discharge listed in 
Sec. 1700.4, States or political subdivisions of States may not adopt 
or enforce any State or local statute or regulation, including issuance 
or enforcement of permits under the National Pollutant Discharge 
Elimination System, controlling that discharge except that States may 
establish a no-discharge zone by State prohibition (as provided in 
Sec. 1700.9), or apply for a no-discharge zone by EPA prohibition (as 
provided in Sec. 1700.10).
    (c) The Governor of any State may submit a petition requesting that 
the Administrator and Secretary review a determination of whether a 
Marine Pollution Control Device is required for any discharge listed in 
Sec. 1700.4 or Sec. 1700.5, or review a Federal standard of performance 
for a Marine Pollution Control Device.

No-Discharge Zones


Sec. 1700.7  No-discharge zones.

    For this part, a no-discharge zone is a waterbody, or portion 
thereof, where one or more discharges incidental to the normal 
operation of Armed Forces vessels, whether treated or not, are 
prohibited. A no-discharge zone is established either by State 
prohibition using the procedures in Sec. 1700.9, or by EPA prohibition, 
upon application of a State, using the procedures in Sec. 1700.10.


Sec. 1700.8  Discharges for which no-discharge zones can be 
established.

    (a) A no-discharge zone may be established by State prohibition for 
any discharge listed in Sec. 1700.4 or Sec. 1700.5 following the 
procedures in Sec. 1700.9. A no-discharge zone established by a State 
using these procedures may apply only to those discharges that have 
been preempted from other State or local regulation pursuant to 
Sec. 1700.6.
    (b) A no-discharge zone may be established by EPA prohibition for 
any discharge listed in Sec. 1700.4 or Sec. 1700.5 following the 
procedures in Sec. 1700.10.


Sec. 1700.9  No-discharge zones by State prohibition.

    (a) A State seeking to establish a no-discharge zone by State 
prohibition must send to the Administrator the following information:
    (1) The discharge from Sec. 1700.4 or Sec. 1700.5 to be prohibited 
within the no-discharge zone.
    (2) A detailed description of the waterbody, or portions thereof, 
to be included in the prohibition. The description must include a map, 
preferably a USGS topographic quadrant map, clearly marking the zone 
boundaries by latitude and longitude.
    (3) A determination that the protection and enhancement of the 
waters described in paragraph (a)(2) of this section require greater 
environmental protection than provided by existing Federal standards.
    (4) A complete description of the facilities reasonably available 
for collecting the discharge including:
    (i) A map showing their location(s) and a written location 
description.
    (ii) A demonstration that the facilities have the capacity and 
capability to provide safe and sanitary removal of the volume of 
discharge being prohibited in terms of both vessel berthing and 
discharge reception.
    (iii) The schedule of operating hours of the facilities.

[[Page 25137]]

    (iv) The draft requirements of the vessel(s) that will be required 
to use the facilities and the available water depth at the facilities.
    (v) Information showing that handling of the discharge at the 
facilities is in conformance with Federal law.
    (5) Information on whether vessels other than those of the Armed 
Forces are subject to the same type of prohibition. If the State is not 
applying the prohibition to all vessels in the area, the State must 
demonstrate the technical or environmental basis for applying the 
prohibition only to Armed Forces vessels. The following information 
must be included in the technical or environmental basis for treating 
Armed Forces vessels differently:
    (i) An analysis showing the relative contributions of the discharge 
from Armed Forces and non-Armed Forces vessels.
    (ii) A description of State efforts to control the discharge from 
non-Armed Forces vessels.
    (b) The information provided under paragraph (a) of this section 
must be sufficient to enable EPA to make the two determinations listed 
below. Prior to making these determinations, EPA will consult with the 
Secretary on the adequacy of the facilities and the operational impact 
of any prohibition on Armed Forces vessels.
    (1) Adequate facilities for the safe and sanitary removal of the 
discharge are reasonably available for the specified waters.
    (2) The prohibition will not have the effect of discriminating 
against vessels of the Armed Forces by reason of the ownership or 
operation by the Federal Government, or the military function, of the 
vessels.
    (c) EPA will notify the State in writing of the result of the 
determinations under paragraph (b) of this section, and will provide a 
written explanation of any negative determinations. A no-discharge zone 
established by State prohibition will not go into effect until EPA 
determines that the conditions of paragraph (b) of this section have 
been met.


Sec. 1700.10  No-discharge zones by EPA prohibition.

    (a) A State requesting EPA to establish a no-discharge zone must 
send to the Administrator an application containing the following 
information:
    (1) The discharge from Sec. 1700.4 or Sec. 1700.5 to be prohibited 
within the no-discharge zone.
    (2) A detailed description of the waterbody, or portions thereof, 
to be included in the prohibition. The description must include a map, 
preferably a USGS topographic quadrant map, clearly marking the zone 
boundaries by latitude and longitude.
    (3) A technical analysis showing why protection and enhancement of 
the waters described in paragraph (a)(2) of this section require a 
prohibition of the discharge. The analysis must provide specific 
information on why the discharge adversely impacts the zone and how 
prohibition will protect the zone. In addition, the analysis should 
characterize any sensitive areas, such as aquatic sanctuaries, fish-
spawning and nursery areas, pristine areas, areas not meeting water 
quality standards, drinking water intakes, and recreational areas.
    (4) A complete description of the facilities reasonably available 
for collecting the discharge including:
    (i) A map showing their location(s) and a written location 
description.
    (ii) A demonstration that the facilities have the capacity and 
capability to provide safe and sanitary removal of the volume of 
discharge being prohibited in terms of both vessel berthing and 
discharge reception.
    (iii) The schedule of operating hours of the facilities.
    (iv) The draft requirements of the vessel(s) that will be required 
to use the facilities and the available water depth at the facilities.
    (v) Information showing that handling of the discharge at the 
facilities is in conformance with Federal law.
    (5) Information on whether vessels other than those of the Armed 
Forces are subject to the same type of prohibition. If the State is not 
applying a prohibition to other vessels in the area, the State must 
demonstrate the technical or environmental basis for applying a 
prohibition only to Armed Forces vessels. The following information 
must be included in the technical or environmental basis for treating 
Armed Forces vessels differently:
    (i) An analysis showing the relative contributions of the discharge 
from Armed Forces and non-Armed Forces vessels.
    (ii) A description of State efforts to control the discharge from 
non-Armed Forces vessels.
    (b) The information provided under paragraph (a) of this section 
must be sufficient to enable EPA to make the three determinations 
listed below. Prior to making these determinations, EPA will consult 
with the Secretary on the adequacy of the facilities and the 
operational impact of the prohibition on Armed Forces vessels.
    (1) The protection and enhancement of the specified waters require 
a prohibition of the discharge.
    (2) Adequate facilities for the safe and sanitary removal of the 
discharge are reasonably available for the specified waters.
    (3) The prohibition will not have the effect of discriminating 
against vessels of the Armed Forces by reason of the ownership or 
operation by the Federal Government, or the military function, or the 
vessels.
    (c) If the three conditions in paragraph (b) of this section are 
met, EPA will by regulation establish the no-discharge zone. If the 
conditions in paragraphs (b) (1) and (3) of this section are met, but 
the condition in paragraph (b)(2) of this section is not met, EPA may 
establish the no-discharge zone if it determines that the significance 
of the waters and the potential impact of the discharge are of 
sufficient magnitude to warrant any resulting constraints on Armed 
Forces vessels.
    (d) EPA will notify the State of its decision on the no-discharge 
zone application in writing. If EPA approves the no-discharge zone 
application, EPA will by regulation establish the no-discharge zone by 
modification to this part. A no-discharge zone established by EPA 
prohibition will not go into effect until the effective date of the 
regulation.

State Petition for Review


Sec. 1700.11  State petition for review of determinations or standards.

    The Governor of any State may submit a petition requesting that the 
Administrator and Secretary review a determination of whether a Marine 
Pollution Control Device is required for any discharge listed in 
Sec. 1700.4 or Sec. 1700.5, or review a Federal standard of performance 
for a Marine Pollution Control Device. A State may submit a petition 
only where there is new, significant information not considered 
previously by the Administrator and Secretary.


Sec. 1700.12  Petition requirements.

    A petition for review of a determination or standard must include:
    (a) The discharge from Sec. 1700.4 or Sec. 1700.5 for which a 
change in determination is requested, or the performance standard from 
Sec. 1700.14 for which review is requested.
    (b) The scientific and technical information on which the petition 
is based.
    (c) A detailed explanation of why the State believes that 
consideration of the new information should result in a change to the 
determination or the standard on a nationwide basis, and an

[[Page 25138]]

explanation of how the new information is relevant to one or more of 
the following factors:
    (1) The nature of the discharge.
    (2) The environmental effects of the discharge.
    (3) The practicability of using a Marine Pollution Control Device.
    (4) The effect that installation or use of the Marine Pollution 
Control Device would have on the operation or operational capability of 
the vessel.
    (5) Applicable United States law.
    (6) Applicable international standards.
    (7) The economic costs of the installation and use of the Marine 
Pollution Control Device.


Sec. 1700.13  Petition decisions.

    The Administrator and the Secretary will evaluate the petition and 
grant or deny the petition no later than two years after the date of 
receipt of the petition. If the Administrator and Secretary grant the 
petition, they will undertake rulemaking to amend this part. If the 
Administrator and Secretary deny the petition, they will provide the 
State with a written explanation of why they denied it.

Subpart D--Marine Pollution Control Device (MPCD) Performance 
Standards


Sec. 1700.14  Marine Pollution Control Device (MPCD) Performance 
Standards. [Reserved.]

[FR Doc. 99-11164 Filed 5-7-99; 8:45 am]
BILLING CODE 6560-50-P