If the federal government follows through with rulemaking, in the next several years, approximately 6,000 vessels in the U.S. military will be required to control polluted discharges to waters of the United States and 12-mile-wide zones stretching seaward from the U.S. coastlines.  The regulations are being rolled out in a three-phase process jointly administered by the EPA and the Department of Defense (EPA/DoD). 

Right now, the regulations would require the control of 25 types of discharges incidental to the normal operation of a vessel.  In the latest action, the EPA/DoD proposed performance standards for 11 of those discharges.  Standards for the remaining 14 discharges will be proposed at a future date, say the EPA/DoD. 

According to the EPA/DoD, the proposed Uniform National Discharge Standards for Vessels of the Armed Forces (UNDS)—Phase II are derived from effluent limits in EPA’s 2011 vessel general permit (VGP) for discharges incidental to the normal operation of nonmilitary and nonrecreational vessels.  The EPA/DoD state that the VGP limits are based on both the technology available to treat the pollutants and limits that would be protective of the designated uses of the receiving waters. 

Under the UNDS program, military vessels ranging from small boats with lengths of less than 20 feet to aircraft carriers over 1,000 feet long will operate marine pollution control devices (MPCDs) specific to each type of discharge.  “MPCD” is a Clean Water Act (CWA) term that may refer to pollution control equipment or to management practices designed to receive, retain, treat, control, and release discharges.   As noted below in the descriptions of discharge types, an MPCD may involve retaining a covered effluent for disposal onshore, discharging wastewater only as the vessel is moving, or substituting environmentally preferable materials used in vessel operations.

The EPA/DoD also state that they have determined that the vessels of the armed forces are generally already implementing the proposed operating conditions and practices for all 11 of the discharges.  “Therefore, it is anticipated that any incremental increase in performance costs, practicability, and operational impacts will be marginal for these discharges,” say the EPA/DoD. 

The CWA requires the EPA/DoD to promulgate UNDS for certain discharges incidental to the normal operation of a vessel of the armed forces unless the Secretary of Defense finds that compliance with the UNDS would not be in the national security interests of the United States.  Under the approach developed by the EPA/DoD, the UNDS are composed of the phases described here.

Phase I 

The first phase of the rulemaking concluded in May 1999 when the EPA/DoD issued a regulation listing the following 25 discharges “for which it is reasonable and practicable to require control with an MPCD to mitigate potential adverse impacts on the marine environment.” 

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; fire main 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; and well deck discharges.

The rule also identified the following 14 discharges as not requiring control with an MPCD:

Boiler blowdown; catapult wet accumulator discharge; cathodic protection; freshwater layup; 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; submarine emergency diesel engine wet exhaust; and submarine outboard equipment grease and external hydraulics.

As of the June 9, 1999, rule, neither states nor localities may adopt or enforce any state or local statutes or regulations affecting the 14 excluded discharges except to establish no-discharge zones.  However, the CWA authorizes governors to petition the EPA/DoD to reevaluate a prior determination that an MPCD is either required or not required for a particular discharge if there is significant new information not considered previously that could reasonably result in a change to the determination. 

Phase II

Under this phase, the EPA/DoD develop federal performance standards for each of the 25 discharges.  In doing so, the EPA/DoD must consider seven factors—nature of the discharge; environmental effects of the discharge; practicability of using the MPCD; effect the installation or use of the MPCD would have on the operation of the vessel; applicable U.S. law; applicable international standards; and economic costs of installing and using the MPCD.

The CWA further provides that the EPA/DoD may establish discharge standards that distinguish among classes, types, and sizes of vessels; distinguish between new and existing vessels; and provide for a waiver of applicability of standards as necessary or appropriate to a particular class, type, age, or size of vessel.

As noted, the EPA/DoD made use of the VGP to develop the MPCD performance standards for vessels of the armed forces.  This approach maximized the scientific and technical knowledge the EPA acquired in developing the VGP.

Phase III

Phase III of the UNDS requires that within 1 year of finalization of the Phase II standards, the DoD promulgate regulations governing the design, construction, installation, and use of MPCDs necessary to meet the discharge performance standards.

Following the effective date of the Phase III regulations, it will be unlawful for vessels of the armed forces to operate within waters subject to the UNDS if the vessels are not equipped with MPCDs meeting the final Phase II standards.  It will also be unlawful for a regulated vessel to release a regulated UNDS discharge into an UNDS no-discharge zone.  Violators of these requirements will be liable to a civil penalty of up to $5,000 for each violation.  Both states and the secretary of the federal department in which the U.S. Coast Guard is operating are empowered to enforce these provisions.  

In addition, upon the effective date of Phase III regulations, neither states nor political subdivisions of states may adopt or enforce a statute or regulation governing discharges identified as requiring control, except to establish no-discharge zones.  However, a state that determines that protection and enhancement of the quality of its waters require greater protection may prohibit one or more discharges incidental to the normal operation of a vessel of the Armed Forces, whether treated or not, into those waters.  Alternatively, a state may request that the EPA prohibit the discharge of one or more discharges, whether treated or not, into specified waters within a state.

Proposed MPCDs

The MPCDs proposed in the recent action and the discharges and pollutants they are intended to address are as follows:

• Aqueous film-forming foam (AFFF) is the primary fire-fighting agent used to extinguish flammable liquid fires. 
• Pollutants: perfluorooctanoic acid, copper, microorganisms. 
• MPCD:  AFFF used during training, testing, or maintenance may not be discharged; AFFF should be collected and stored for onshore disposal or discharged when the vessel is seaward of waters subject to the UNDS.
• Chain locker effluent is the accumulated precipitation and seawater emptied from the compartment storing the vessel’s anchor chain. 
• Pollutants: paint chips, rust, grease, sacrificial zinc anodes, microorganisms. 
• MPCD:  All anchor chains in surface vessels must be thoroughly washed as they are hauled out of the water to remove sediment and organisms.
• Distillation and reverse osmosis brine is the seawater that is a by-product of the processes used to generate freshwater from seawater. 
• Pollutants: dissolved and suspended solids, antiscaling chemicals, metals. 
• MPCD:  No discharge of distillation and reverse osmosis brine overboard within waters subject to the UNDS if it contacts machinery or industrial equipment. 
• Elevator pit effluent is the liquid that accumulates in, and is discharged from, the sumps of elevator wells. 
• Pollutants:  lubricants, cleaning solvents, soot, paint chips, total nitrogen, bis(2-ethylhexyl) phthalate, silver, chromium, copper, lead, zinc, and phenols.
• MPCD:  No direct discharge of elevator pit effluent overboard within waters subject to the UNDS; may be discharged in regulated waters only if it is first commingled with another discharge for the purposes of treatment.
• Gas turbine water wash is water released from washing gas turbine components.
• Pollutants:  oil, grease, solvent-based cleaning products containing naphthalene.
• MPCD:  No direct discharge of gas turbine water wash overboard within waters subject to the UNDS.
• Non-oily machinery wastewater is 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.
• Pollutants:  bis(2-ethylhexyl) phthalate, copper, nickel, silver.
• MPCD:  Direct discharges of non-oily machinery wastewater or discharges of non-oily machinery wastewater commingled with any other discharge for the purposes of treatment before discharge must be free of toxic or bioaccumulative additives.
• Photographic film wastewater resulting from processing of photographic film. 
• Pollutants:  acetic acid, aluminum sulfate, ammonia, boric acid, ethylene glycol, sulfuric acid, sodium acetate, sodium chloride, ammonium bromide, formaldehyde, silver.
• MPCD:  Prohibit discharge of photographic laboratory drain discharges within waters subject to the UNDS.
• Seawater cooling overboard discharge is the discharge of seawater from piping systems that provide noncontact cooling water for vessel systems.
• Pollutants:  Temperature of the discharge could potentially contribute to an exceedance of relevant recommended water quality criteria for thermal mixing zones.
• MPCD:  Discharge should occur only when the vessel is under way to ensure dispersion of adverse thermal impacts.
• Seawater piping biofouling prevention is the discharge of seawater containing additives used to prevent the growth and attachment of biofouling organisms in seawater cooling systems.
• Pollutants:  chlorinated substances.
• MPCD: Minimize the amount of chlorine used to control fouling; remove fouling organisms from seawater piping on a regular basis; prohibit discharge of fouling organisms removed into waters subject to the UNDS.
• Small boat engine wet exhaust is seawater mixed and discharged with small boat propulsion engine exhaust to cool the exhaust and quiet the engine.
• Pollutants:  nitrogen oxides, sulfur dioxide, carbon monoxide, hydrocarbons, benzene, toluene, ethylbenzene, naphthalene.
• MPCD:  Alternative fuels; also four-stroke engines should be considered instead of two-stroke engines generating wet exhaust.
• Well deck discharges are the water that accumulates from seawater flooding of the docking well of support ships that transport, load, and unload amphibious vehicles.
• Pollutant:  oil.
• MPCD:  No well deck discharges containing graywater within waters subject to the UNDS; no washdown of gas turbine engines within 3 nautical miles of the United States to minimize the impact of oil and grease on nearshore waters.

The EPA/DoD are also proposing amendments to authorize certain discharges notwithstanding the proposed performance standards in situations where vessel safety or lives are endangered; to require that more than one discharge stream combined into one discharge stream meet requirements applicable to all discharge streams before discharge; to require recordkeeping; and to require reporting of instances of noncompliance with MPCD performance standards.

The proposed UNDS were published in the February 3, 2014, FR.

William C. Schillaci
BSchillaci@blr.com