Uniform National Discharge Standards (UNDS): Rulemaking Process

In 1996, Congress passed legislation amending the Clean Water Act to control discharges that are incidental to the normal operation of vessels of the Armed Forces. The legislation tasked the EPA and the Department of Defense (DOD) to establish national standards. The EPA and the DOD have agreed to establish performance standards in batches. This is referred to as batch rulemaking.

• How are the EPA and the Department of Defense (DOD) identifying and evaluating discharges?
• What discharges require marine pollution control devices (MPCDs)?

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How are the EPA and the Department of Defense (DOD) identifying and evaluating discharges?

Phase	Description	Rule Type	Status
Phase I	Identify and Characterize Discharges	Joint EPA/DOD Rule	Final Rule published on May 10, 1999
Phase II	Establish MPCD Performance Standards	Joint EPA/DOD Rule	Batch One Final Rule published on January 11, 2017 Batch Two Final Rule published on July 17, 2020 Batch Three - future rulemaking
Phase III	Develop Implementing Instructions	DOD Only Rule	Batch One Notice of Availability published on July 3, 2019 Batch Two Notice of Availability published on January 10, 2023 Batch Three Notice of Availability must be issued one year after corresponding Phase II final rule

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Phase I

On May 10, 1999, the EPA and the DOD published the Phase I final rule in the Federal Register (64 FR 25126 (PDF)(13 pp, 216 K); 40 CFR Part 1700 (PDF)(7 pp, 196 K, About PDF)). The Phase I rule identified all discharges incidental to the normal operation of vessels of the Armed Forces, and characterized each discharge to determine if it required control. The determination was made based on the potential of the discharge to have an environmental impact. The rule determined the types of vessel discharges that require control by a marine pollution control device (MPCD) and those that do not require control. The EPA and the DOD identified 39 discharges, 25 of which would require control by an MPCD.

The rule also established the mechanism by which states can petition the EPA to review whether or not a discharge should require control, and the processes the EPA and the states must follow to establish no-discharge zones.

What discharges require Marine Pollution Control Devices (MPCDs)?
 

The rationale for the determinations of requiring control is documented in the Technical Development Document (TDD) for Phase I UNDS.

• Phase I Rule and Technical Development Document (TDD) of Uniform National Discharge Standards (UNDS)

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Phase II

In Phase II, the EPA and the DOD, in consultation with the U.S. Coast Guard, are developing standards for each discharge that was determined to require control in Phase I. The EPA and the DOD have agreed to establish performance standards in batches, rather than promulgating standards for all 25 discharges at one time.

The batch rulemaking approach allows the EPA and the DOD to conduct technical analyses and develop discharge standards in three batches. A major advantage of this approach is that it speeds up the implementation of performance standards, thus more quickly realizing the goals of UNDS. On February 3, 2014, the EPA and the DOD published proposed discharge performance standards for the eleven discharges in Batch One. On January 11, 2017, the EPA and the DOD published the Phase II Batch One Final Rule in the Federal Register at 82 FR 3173 (PDF)(13 pp, 263 K, About PDF). The proposed discharge performance standards for eleven additional discharges in Batch Two were published in the Federal Register on October 7, 2016 at 81 FR 69753 (PDF) (20 pp, 518 K, About PDF). 

The EPA and the DOD must consider the following seven statutory factors in determining whether it is reasonable and practicable to require the use of an MPCD:

• Nature of the discharge
• Environmental effects of the discharge
• Practicability of using the MPCD
• Effect of an MPCD on the operation of a vessel
• Applicable United States law
• Applicable international standards
• Costs of MPCD installation and use

Current Status

• Conducted federal and tribal consultations in March 2013
• Published Notice of Proposed Rulemaking (PDF)(19 pp, 295 K, About PDF)  in February 2014
• Developed Coastal Zone Management Act (CZMA) National Consistency Determination in July 2016
• Published final rule entitled "Uniform National Discharge Standards for Vessels of the Armed Forces-Phase II Batch One" (PDF) (13 pp, 263 K, About PDF) in January 2017. Subsequently published Batch One: Delay of Effective Date (PDF) (8 pp, 167 K, About PDF)

• Conducted federal and tribal consultations in March 2016
• Published Notice of Proposed Rulemaking (PDF)(20 pp, 518 K, About PDF)  in October 2016
• Developed Coastal Zone Management Act (CZMA) National Consistency Determination in November 2018
• Published final rule entitled "Uniform National Discharge Standards for Vessels of the Armed Forces-Phase II Batch Two" (PDF)(14 pp, 307 K, About PDF) in July 2020.

• Future rulemaking

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Phase III

In Phase III, the DOD, in consultation with the EPA and the U.S. Coast Guard, will establish regulations governing the design, construction, installation and use of MPCDs onboard vessels of the Armed Forces. These regulations must meet the performance standards promulgated in Phase II. The Phase II performance standards do not become effective, nor does the preemption of state regulation of Armed Forces vessel discharges become effective, until Phase III standards have been promulgated.

Current Status

• Published Notice of Availability (PDF) (310 K) in July 2019

• Published Notice of Availability (PDF) (201 K) in January 2023

• Future Department of Defense Notice of Availability pending completion of Phase II