25126 Federal Register / Vol. 64, No. 89 / Monday, May 10, 1999 /Rules and Regulations

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 nodischarge 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
Federal Register / Vol. 64, No. 89 / Monday, May 10, 1999 /Rules and Regulations 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.
25128 Federal Register / Vol. 64, No. 89 / Monday, May 10, 1999 /Rules and Regulations

TABLE 2.—DISCHARGES EXEMPTED FROM CONTROLS—Continued

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 nodischarge zones (where any release of a
Federal Register / Vol. 64, No. 89 / Monday, May 10, 1999 /Rules and Regulations 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 seniorlevel 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)

Branch of armed forces Number

of 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
25130 Federal Register / Vol. 64, No. 89 / Monday, May 10, 1999 /Rules and Regulations

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°F rather than the

original 212°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 bottomdwelling 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.
Federal Register / Vol. 64, No. 89 / Monday, May 10, 1999 /Rules and Regulations 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 § 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 costeffective 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 nodischarge 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
25132 Federal Register / Vol. 64, No. 89 / Monday, May 10, 1999 /Rules and Regulations

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 nodischarge 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 Nodischarge 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
Federal Register / Vol. 64, No. 89 / Monday, May 10, 1999 /Rules and Regulations 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
25134 Federal Register / Vol. 64, No. 89 / Monday, May 10, 1999 /Rules and Regulations

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 § .9.1 the table is amended by

adding a new heading with an entry in

numerical order to read as follows:

§ .9.1 OMB approvals under the Paperwork

Reduction Act.

* * * * *

40 CFR citation OMB control

No.

40 CFR citation OMB control

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

§ 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.

§ 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

§ 1700.4. Discharges not requiring

control are identified in § 1700.5.

Federal standards of performance for

each required Marine Pollution Control

Device are listed in § 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

§§ 1700.4 and 1700.5 according to the

timing provisions in § 1700.6, except to

establish a no-discharge zone by State

prohibition in accordance with § 1700.9,

or to apply for a no-discharge zone by

EPA prohibition in accordance with

§ 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 §§ 1700.11 through

1700.13.

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

§ 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 & PostLaunch 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/OilWater 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.

§ 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
25136 Federal Register / Vol. 64, No. 89 / Monday, May 10, 1999 /Rules and Regulations

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

§ 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 § 1700.9), or

apply for a no-discharge zone by EPA

prohibition (as provided in § 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 § 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 § 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 § 1700.9), or

apply for a no-discharge zone by EPA

prohibition (as provided in § 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 § 1700.4 or

§ 1700.5, or review a Federal standard of

performance for a Marine Pollution

Control Device.

No-Discharge Zones

§ 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 § 1700.9, or by

EPA prohibition, upon application of a

State, using the procedures in § 1700.10.

§ 1700.8 Discharges for which nodischarge zones can be established.

(a) A no-discharge zone may be

established by State prohibition for any

discharge listed in § 1700.4 or § 1700.5

following the procedures in § 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 § 1700.6.

(b) A no-discharge zone may be

established by EPA prohibition for any

discharge listed in § 1700.4 or § 1700.5

following the procedures in § 1700.10.

§ 1700.9 No-discharge zones by State

prohibition.

(a) A State seeking to establish a nodischarge zone by State prohibition

must send to the Administrator the

following information:

(1) The discharge from § 1700.4 or

§ 1700.5 to be prohibited within the nodischarge 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.
Federal Register / Vol. 64, No. 89 / Monday, May 10, 1999 /Rules and Regulations 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.

§ 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 § 1700.4 or

§ 1700.5 to be prohibited within the nodischarge 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 nodischarge 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 nodischarge 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

§ 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 § 1700.4 or

§ 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.

§ 1700.12 Petition requirements.

A petition for review of a

determination or standard must include:

(a) The discharge from § 1700.4 or

§ 1700.5 for which a change in

determination is requested, or the

performance standard from § 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
25138 Federal Register / Vol. 64, No. 89 / Monday, May 10, 1999 /Rules and Regulations

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.

§ 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

§ 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