Vessel General Permit

Effective Feb. 6, 2009, all commercial vessels 79 feet or longer that discharge pollutants incidental to their normal operations will become subject to the new Vessel General Permit (``VGP`` or ``permit``) issued by the EPA when they come into the United States three mile territorial sea or inland waters. The VGP was issued on Dec. 18, 2008 in an effort to regulate various types of discharges, including ballast water discharges, from commercial ships operating in U.S. waters. Vessels subject to the new permit are strongly encouraged to begin development of compliance programs that meet the permit’s requirements.

Permit Content and Coverage

Nearly 61,000 domestic commercial vessels and 8,000 foreign flagged vessels will be required to comply with the VGP. The goal of the new permit is to reduce releases of 26 types of discharges from vessels operating in U.S. waters. These include, among others, deck runoff from rain and cleaning, bilge water discharge, ballast water used to stabilize ships, boiler blowdown, boat engine wet exhaust and gray water from showers and laundry wash. The permit incorporates the already mandatory ballast water management and exchange standards of the U.S. Coast Guard and has requirements for eight classes of vessels including cruise ships, research vessels, oil and petroleum tankers and large ferries. For each discharge type, the permit establishes practices and, in some cases, effluent limits, to be adopted depending on the particular conditions that may exist. Recreational vessels, commercial fishing vessels (regardless of length) and discharges from vessels operating other than as a means of transportation are not subject to the permit.

All commercial vessels will initially be covered by the general permit, therefore, it is not necessary to obtain a separate permit for each vessel. Instead, vessels will be covered by the VGP when vessel operators file a Notice of Intent (``NOI``) to receive coverage under the VGP. At that time, vessels will be required to comply with the requirements of the VGP. Vessels are not required to submit an NOI until June 19, 2009. Vessels less than 300 gross tons and that do not have the capacity to hold or discharge more than 8 cubic meters (2,113 gallons) of ballast water are not required to submit an NOI to receive permit coverage.

Background

The VGP brings an end to a 35-year period where commercial vessel operators were exempt from Clean Water discharge requirements. Environmental groups and 12 states sued the EPA to change that policy arguing that many foreign species are carried into U.S. territories in ballast water that is eventually released in domestic ports. In March 2005, a California federal court ruled that the EPA regulation excluding discharges incidental to the normal operation of a vessel from National Pollutant Discharge Elimination System (``NPDES``) permitting requirements exceeded the agency’s authority under the Clean Water Act. The Court issued an order on Sept. 18, 2006 revoking the regulation effective Sept. 30, 2008. The EPA appealed, however, the decision was upheld by the Ninth Circuit. The EPA responded by developing two proposed permits to regulate discharges from vessels.

The permit was scheduled to take effect on Dec. 19, 2008, however, a California federal judge intervened and postponed the effective date until Feb. 6, 2009 allowing states more time to impose additional requirements for vessels operating in their respective waters. Several states are expected to use their authority under the Clean Water Act to implement requirements that exceed those in the federal permit.

Compliance

The EPA will be in charge of determining whether permit conditions have been violated. Any non-compliance with the requirements of the permit constitutes a violation of the Clean Water Act. The Clean Water Act authorizes civil and criminal penalties for violations. Each day a violation continues is a separate violation of the permit. The permit also includes requirements for corrective action, inspection, monitoring, recordkeeping, and reporting.