[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
[[Page 25127]]
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
