On April 12, 2013, the Environmental Protection Agency (“EPA”) published its formal Notice of Final Permit Issuance in the Federal Register announcing that the Vessel General Permit (“VGP”) currently in force (“2008 VGP”), which regulates discharges incidental to the normal operation of commercial vessels, will be replaced by a Phase II VGP Regime (“2013 VGP”) effective on December 19, 2013. The 2013 VGP will regulate discharges from commercial vessels greater than or equal to 79 feet in length, excluding military and recreational vessels (and commercial fishing vessels that do not have ballast water discharges until 2014 due to a Congressional extension of a previously enacted moratorium). The 2013 VGP, Fact Sheet, and Economic Analysis can be found at the following link: http:// cfpub.epa.gov/npdes/vessels/vgpermit.cfm. The following is an analysis of the key changes in the new Phase II VGP Regime.

Background

In 2006, after years of litigation, a federal court ordered the 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, the 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 the EPA to: (1) include more stringent numeric effluent limits to control the release of non-indigenous invasive species in ballast water discharges; (2) publish a draft VGP by November 30, 2011 and issue the final VGP by November 30, 2012, which was later extended until March 15, 2013 so that the industry had enough time to become familiar with the new VGP requirements; and (3) 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.

Currently, the EPA estimates that approximately 50,000 vessels have submitted a Notice of Intent (“NOI”) to be regulated under the 2008 VGP. In addition, the EPA estimates that the 2013 VGP will apply to approximately 70,000 existing VGP vessels plus another 2,200 commercial fishing vessels greater than 79 feet in 2014 unless the moratorium is once again extended. For more information regarding the 2008 VGP, please see our previous advisories and articles at: http://www.blankrome.com/index.cf m?contentID=14&itemID=50&viewType=3&viewFlag=3.

The Phase II VGP Regime

The 2013 VGP covers the same 26 incidental discharges as the current 2008 VGP. The 2013 VGP will apply to commercial fishing vessels starting on December 18, 2014. 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. The following is a summary of some of the key changes.

Ballast Water

Numeric Technology-Based Effluent Limitations: The 2008 VGP requirements for ballast water were minimal, largely requiring what current Coast Guard requirements require— primarily the use of ballast water exchange. The 2013 VGP implements numeric technology-based effluent limitations, which over time will replace the current non-numeric-based best management practice requirements. The purpose of these limitations is to reduce the number of living organisms discharged via ballast water into waters regulated by the 2013 VGP. There are four possible options to meet these limits as follows:

  • treat the ballast water to achieve the numeric limits;
  • transfer the ballast water to a third-party for treatment;
  • use municipal or potable water for ballast; and 
  • do not discharge ballast water.

Implementation Dates: For existing vessels, the implementation of the ballast water numeric limitations requires compliance by the first drydocking after January 1, 2014 or January 1, 2016, depending on vessel ballast capacity. With regard to new vessels, the EPA has changed the definition of “new vessel” from the proposed rule in the 2013 VGP by adjusting the date of the vessel’s construction from January 1, 2012 to December 1, 2013. This means that new vessels constructed after December 1, 2013 will be required to meet the limits upon the effective date of the 2013 VGP. This date is consistent with the new ballast water requirements for new vessels under the Coast Guard’s ballast water requirements.

Exceptions for Lakers and Inland and Seagoing Vessels: The effluent limits do not apply to some vessels, such as inland and certain seagoing vessels less than 1,600 gross tons; vessels operating exclusively within a limited area on short voyages; unmanned, unpowered barges; and vessels built before January 1, 2009 that operate exclusively in the Laurentian Great Lakes (referred to as ‘‘Lakers’’). The draft VGP would have required most vessels with greater than eight cubic meters of ballast water capacity to meet the numeric ballast effluent limitations for ballast water. The EPA concluded that though technologies are promising for future development, numeric ballast water treatment limits for these vessels do not represent Best Available Technology (“BAT”) at this time or over the life of the permit, because, among other things, most ballast water treatment systems have been designed for larger vessels and/or vessels that only uptake or discharge ballast water.

With respect to Lakers, the EPA has expanded the scope of the term to include vessels that operate exclusively in all of the Great Lakes. However, the EPA established three management measures specific to Lakers that it believes reflect BAT, as well as represents common sense approaches to managing ballast water discharges for vessels when they have not installed ballast water treatment systems. Additionally, as proposed, the 2013 VGP requires vessels entering the Great Lakes utilizing a ballast water treatment system to conduct ballast water exchange or saltwater flushing (as applicable) in addition to meeting the numeric limits for ballast water in certain circumstances.

More Stringent Best Management Practices

The 2013 VGP also imposes more strict technology-based limits in the form of BMPs for discharges related to oil-to-sea interfaces. In cases where BMP is technically impossible, the 2013 VGP has revised applicable requirements. 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. The EPA proposed in the draft 2013 VGP that exhaust gas scrubber washwater discharges must have a pH limit no less than 6.5. This was changed to a pH of no less than 6.0 measured at the ship’s overboard discharge.

The proposed VGP also included a provision prohibiting the discard of unused bait overboard. In the 2013 VGP, it is now clarified that this does not include unused live bait that is discharged into the same waterbody or watershed from which it was caught.

Monitoring and Recordkeeping

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, bilgewater, and exhaust gas scrubber effluent if discharged into U.S. waters. However, the 2013 VGP has reduced the frequency of monitoring for some or all parameters for every discharge type and/or applicability thresholds for vessels that must conduct monitoring. Additionally, the proposed 5ppm bilgewater oil and grease discharge limits for new build vessels has been changed back to the original 15ppm. New build vessels greater than 400 gross tons discharging bilgewater into waters subject to the VGP are now also required to annually conduct a sample of the bilgewater and record the reading on the oil content meter. Other inspection requirements previously included in the 2008 VGP remain in the 2013 VGP.

The 2013 VGP also provides for administrative improvements. It clarifies that electronic recordkeeping is allowed, and streamlines the one-time report and annual compliance report into one annual report if they meet certain criteria. In addition to these requirements, a permit may not be issued until the owners and operators of the vessel have met state-specific conditions according to the CWA section 401, or the state has waived its right to certify.

Submittal of NOI

For smaller vessels less than 300 tons that do not have the capacity to hold or discharge more than eight cubic meters of ballast water, no NOI will be required. However, permittees not required to submit a NOI are required to complete and keep a Permit Authorization and Record of Inspection (“PARI”) form onboard their vessel at all times. The 2013 VGP contains the PARI form requirement because the Agency believes it is an efficient way for the owner/operator to certify that they have read and agreed to comply with the terms of the permit, and demonstrate basic understanding of the permit’s terms and conditions. In addition, the form will provide regulators with a standardized foundation for conducting inspections.

Challenges to the 2013 VGP

Judicial review of the 2013 VGP can be sought by a party under the CWA by the filing of a petition for review in the United States Court of Appeals within 120 days after the permit is considered issued for purposes of judicial review. As of the writing of this article, the Northwest Environmental Advocates, Center for Biological Diversity, and the National Wildlife Federation have filed suits challenging the implementation of the 2013 VGP. Stay tuned for further developments.

Conclusion

Regardless of the continuing legal challenges, it is inevitable that some form of the 2013 VGP will be implemented on December 19, 2013 or shortly thereafter. It behooves owners and operators to become fully versed on the revised requirements and to ensure that company managers and vessel crews are adequately trained to comply with Phase II of the VGP.