Permit Includes New Numeric Effluent Limitations Applicable to Vessels With Ballast Water Tanks

On March 28, 2013, the Environmental Protection Agency (EPA) issued the final National Pollutant Discharge Elimination System (NPDES) Vessel General Permit (VGP). The 2013 VGP, issued under the Clean Water Act (CWA), replaces the 2008 VGP and regulates discharges incidental to the normal operation of commercial vessels greater than or equal to 79 feet in length.1 The 2013 VGP will be effective on December 19, 2013, when the current 2008 VGP expires.2 The 2013 VGP includes, for the first time, numeric effluent limitations applicable to vessels with ballast water tanks, placing a stringent limit on the number of living organisms per cubic meter of ballast water that a vessel can discharge and retain coverage under the CWA permit.  

EPA issued the 2008 VGP as an NPDES permit in response to a court decision overturning EPA’s prior exemption for discharges incidental to normal vessel operations. Northwest Envtl. Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008). Shipping and other industry groups have expressed concern over difficulties involved in regulating mobile sources, such as vessels that regularly cross the waters of many states, under the NPDES permit program. These industries have expressed frustration that conditions imposed by the CWA Section 401 state certification process, and the overlap of VGP conditions with U.S. Coast Guard requirements, can result in a confusing, impractical and costly patchwork of vessel regulation. According to the House Transportation and Infrastructure Committee’s oversight plan for the 113th Congress, the committee is planning to continue to review and address concerns with the regulation of vessel discharges under the VGP.

Implications for Industry Sectors Involved in Marine Shipping

The 2013 VGP continues to regulate 26 specific discharge categories addressed by the 2008 VGP. The VGP establishes numeric ballast water discharge limits for living organisms in the ballast water of large commercial vessels, replacing the nonnumeric 2008 VGP limits with more stringent standards. Notably, the 2013 VGP generally aligns with numeric standards set by ballast water management regulations issued by the U.S. Coast Guard in 2012 and with international standards. EPA has expressed the numeric effluent limit for ballast water discharges as numbers of living organisms per cubic meter of ballast water. As with the 2008 VGP, vessels enrolled in, and meeting the requirements of the U.S. Coast Guard’s Shipboard Technology Evaluation Program (STEP) will be deemed to be in compliance with the numeric limitations.

EPA has established a staggered schedule for implementation of the numeric limits, requiring existing vessels with a ballast capacity of 1,500 to 5,000 cubic meters to comply by their first dry-docking after January 1, 2014, and vessels that were constructed before January 1, 2012, with a ballast capacity either less than 1,500 cubic meters or greater than 5,000 cubic meters, to comply by January 1, 2016. EPA estimates that most retrofits will be completed by 2018. Vessels constructed after December 1, 2013, that are subject to the numeric limits, would be required to comply with the ballast water discharge standards immediately upon entering into service. Under the 2013 VGP, these ballast water limits may be met through one of four ways: use of a treatment device prior to discharge, transfer of the ship’s ballast water to a third party for onshore treatment at an NPDES-permitted facility, use of treated municipal/potable water for ballast, or through a decision not to discharge the ballast water at all.

In addition, the final 2013 VGP includes numeric limits for exhaust gas scrubber effluent that are consistent with International Maritime Organization guidelines. The 2013 VGP imposes more stringent technology-based effluent limits in the form of best management practices for discharges of oil to sea interfaces (e.g., stern tubs, thrusters, hydraulic pitch propellers, wire rope lubrication) and increases the mandate for use of “environmentally acceptable lubricants” (EALs) in U.S. waters (e.g., vegetable oils, synthetic esters and polyalkylene glycols). The 2013 VGP also contains monitoring requirements for certain larger vessels for ballast water, bilgewater, graywater and/or exhaust gas scrubber effluent that discharge into waters subject to the permit.

The final permit also includes new requirements on copper and selenium discharges and releases of invasive species in order to ensure compliance with the Endangered Species Act (ESA). Due to a concern regarding the high sensitivity of aquatic species to copper, raised by the National Marine Fisheries Service (NMFS) in its ESA consultation with EPA, the VGP requires that “vessel owners/operators shall consider using anti-fouling coatings that rely on a rapidly biodegradable biocide or other alternative rather than copper-based coatings.” And if vessels opt to continue to use copper-based anti-fouling coatings, the permit requires that they must document how they reached that decision.

Additionally, in the event that the permitting moratorium for commercial fishing vessels is not extended past December 18, 2014, the 2013 VGP will be available, for the first time, to authorize discharge of fish hold effluent and establish appropriate best management practices for this discharge type after that date. Finally, EPA made several administrative changes to the VGP in an attempt to improve efficiency, including clarifying that electronic recordkeeping is permitted, eliminating duplicative reporting, and allowing for consolidated reporting for certain vessels.