United States: Only 45 Days Left—Have You Commented On EPA’s Draft Vessel General Permit?

Last Updated: January 10 2012
Article by Jeanne Grasso and Jonathan K. Waldron

New Development

On December 8, 2011, the Environmental Protection Agency ("EPA") published two draft Vessel General Permits ("VGPs") that would authorize discharges incidental to the normal operation of commercial vessels—one to replace the existing VGP currently in force ("2008 VGP") and one that would apply to small vessels ("SVGP"), which are currently exempt from the 2008 VGP.  The draft 2013 VGP, which applies to commercial vessels greater than or equal to 79 feet in length, would replace the 2008 VGP when it expires in December 2013.  The draft SVGP, which applies to commercial vessels less than 79 feet in length, would provide such vessels with the Clean Water Act ("CWA") permit coverage they will be required to possess by December 2013 when the legislative exemption currently in place for small vessels expires.

Comments on the draft VGPs, Fact Sheets, and Economic Analyses are due by February 21, 2012.  EPA intends to issue the final VGPs in November 2012, a full year before the final permits are expected to go into effect to allow vessel owners and operators time to prepare for new permit requirements.   The Federal Register Notice, draft VGPs, Fact Sheets, and Economic Analyses can be accessed here.

Background

In 2006, after years of litigation, a federal court ordered EPA to discontinue exempting vessels from the CWA's National Pollutant Discharge Elimination System ("NPDES") permitting program, which regulates discharges of pollutants into U.S. navigable waters (generally within 3 miles from shore), for discharges incidental to the normal operations of a vessel.  As a result, EPA developed the VGP program, in effect since February 2009, which covers 26 types of discharges incidental to normal vessel operations.  Further litigation over the 2008 VGP ended in a settlement that required EPA to: (i) include more stringent numeric effluent limits to control the release of non-indigenous invasive species in ballast water discharges; (ii) publish a draft VGP by November 30, 2011 and  issue the final VGP by November 30, 2012 so that the industry has enough time to become familiar with the new VGP requirements; and (iii) allow states six months after the publication of the new VGP to accept, accept with conditions, or deny/waive certification under Section 401 of the CWA.

The 2008 VGP applies to commercial vessels, U.S.-flag or foreign-flag, at least 79 feet in length.  Commercial fishing vessels are exempt from the VGP requirements unless they discharge ballast water.  In addition, the 2008 VGP incorporates the Coast Guard's mandatory ballast water management and exchange standards, adds additional ballast water management practices, and provides effluent limits for other types of discharges. Vessel owners/operators are required to maintain various training, inspection, monitoring, record keeping, and reporting protocols and to implement corrective actions upon identification of each deficiency.  In addition, numerous states added conditions to the current VGP, often more stringent than the VGP requirements, in their 401 certifications.  Knowledge of the state-specific requirements is essential in order to ensure compliance, because vessel owners and operators are required to comply with the state's certification conditions when operating in that state's waters. 

Under the CWA, general permits like the VGPs are issued for a 5-year period after which time EPA generally issues revised permits based on updated information and requirements.  The 2008 VGP expires on December 19, 2013.

For more information regarding the 2008 VGP, please see our previous advisories and articles at: Coast Guard Formally Agrees to Assist EPA in the Detection and Reporting of Deficiencies under EPA's Vessel General Permit Program; EPA's Vessel General Permit—Are You In Compliance?; and How to Avoid the Vessel General Permit Minefield.

The Draft 2013 VGP

The draft 2013 VGP covers the same 26 discharges as the current 2008 VGP.  In addition, the 2013 VGP includes new requirements for fishing vessels, which were previously exempted by Public Law 111-215.  In order to comply with the upcoming 2013 VGP, the 26 incidental discharges must be managed and operators must employ Best Management Practices ("BMPs") to minimize pollutants getting  into U.S. waters.  EPA's Science Advisory Board study and the National Research Council National Academy of Sciences study will be used to establish the new ballast water discharge standard addressing invasive species limits in the 2013 VGP.  

EPA is proposing a staggered schedule for implementation of the ballast water numeric limitation, requiring compliance by the first drydocking after January 1, 2014 or January 1, 2016, depending on vessel ballast capacity.  Vessels constructed after January 1, 2012 and subject to the numeric limitation will be required to meet the limits upon the effective date of the 2013 VGP.  EPA established the limits consistent with the U.S. Coast Guard proposed Phase I standards and the International Maritime Organization standards.  The numeric limitation will not apply to some vessels built before January 1, 2009, such as unmanned, unpowered barges and existing bulk carriers that operate exclusively in the Great Lakes upstream of the Welland Canal (commonly referred to as "Lakers").  These vessels will need to meet the VGP requirements, however, if they were built after January 1, 2009.   The 2013 VGP will impose several BMPs for vessels until they are required to meet the available, practicable, and economically achievable numeric standard ballast water limits. 

The 2013 VGP will also impose more strict technology-based limits in the form of BMPs for discharges related to oil-to-sea interfaces.  Accordingly, the 2013 VGP addresses the reduction of oil and other pollutants that enter U.S. waters by including conditions for mechanical systems that could leak lubricants into the water and exhaust gas scrubber washwater.  While EPA is seeking comments on all parts of the 2013 VGP, the EPA Notice states that EPA is specifically seeking comments as to whether the 2013 VGP should include more stringent numeric limits for bilge water discharges in order to reduce the amount of oil, and possibly other pollutants, discharged into U.S. waters.  In addition, EPA is requesting comments related to the administrative changes in the draft VGP and is calling for suggestions for other efficiency improvements.

Like the 2008 VGP, the 2013 VGP will require routine inspections, monitoring, reporting, and recordkeeping.  In addition, the 2013 VGP will require certain larger vessels to monitor ballast water, graywater, and exhaust gas scrubber effluent if discharged into U.S. waters.  Other inspection requirements previously included in the 2008 VGP remain in the 2013 VGP.  The 2013 VGP would clarify that electronic recordkeeping is allowed under the VGP.  EPA also will consolidate and streamline the one-time report and annual compliance report into one annual report.

The Draft SVGP

The SVGP would be the first CWA permit to address discharges incidental to the normal operation of commercial vessels less than 79 feet in length.  Currently, such vessels are legislatively exempted, unless they discharge ballast water, until December 18, 2013.  The SVGP would go into effect at the expiration of the legislative moratorium.  The SVGP specifies BMPs for a number of discharge management categories, including fuel management, engine and oil control, solid and liquid maintenance, graywater management, fish hold effluent management, and ballast water management.

Conclusion and Recommendations

Owners and operators of vessels and other stakeholders should review the draft VGPs and provide comments by February 21, 2012.  Owners/operators should also consider attending EPA's public meetings in Washington D.C. on January 11, 2012 and in Chicago on January 23, 2012.  In addition, EPA has scheduled a webcast on January 19, 2012 from 1:00 pm – 3:00 pm (EST)  to address questions posed by interested parties and to provide additional information on the draft VGPs.  Interested parties can register for the webcast on EPA's website here.  

When commenting, interested parties should pay particular attention to those provisions called out in the draft VGPs, most of which are enumerated in the "Proposed 2013 VGP Fact Sheet", which accompanies the draft VGP.   If a party identifies a new BMP or a previously unidentified BMP, such person should submit a comment to EPA to consider when finalizing the 2013 VGP.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Jeanne Grasso
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