TECHNICAL
BALLAST & WASTEWATER MANAGEMENT
How to Avoid the Vessel General Permit Minefield
By Jonathan K. Waldron
At the last minute, the commercial vessel industry was granted a final reprieve from having to immediately comply with a final Vessel General Permit (VGP). Specifically, on December 19, 2008, the U.S. District Court for the Northern District of California approved a joint motion to delay the effective date of the VGP. The date for compliance is now set for February 6, 2009. Meanwhile, the Environmental Protection Agency (EPA) issued its final Vessel General Permit (VGP) for "discharges incidental to the normal operation of commercial vessels" on the day before the court took action. The link to the EPA website containing the VGP and other supporting documents is: http://cfpub.epa.gov/npdes/home.cfm?p rogram_id=350. The following is provided to assist you in navigating this complex minefield. In 1972, the Clean Water Act (CWA) established the National Pollutant Discharge Elimination System (NPDES) permitting program, which governs discharges of pollutants into U.S. navigable waters. Since implementing the NPDES requirements, EPA has exempted discharges "incidental to the normal operation of a vessel" from permitting requirements. Various environmental groups sued EPA claiming that the vessel exemption was illegal under the CWA. In September 2006, the U.S. District Court for the Northern District of California sided with the environmental groups and ordered EPA to vacate this longstanding regulatory exemption. As a consequence, EPA was required to develop a permitting program for incidental discharges. The District Court gave EPA until September 30, which was last extended until December 19, 2008 before this most recent extension, to issue new regulations governing such discharges. EPA estimates that about 61,000 U.S.-flag and 8,000 foreign-flag vessels will be subject to these permitting requirements.
Vessels Covered and Geographic Scope
of 79 ft. or greater in length are subject to the permit. Due to legislation enacted in 2008, other vessels which would have otherwise been included, are no longer within the scope of the VGP as follows: (1) A two year moratorium was granted to all commercial fishing vessels and commercial vessels less than 79 ft. in length, except for ballast water discharges (a report to Congress on these vessels is due in two years and ballast water discharges are covered by the VGP); and (2) all recreational vessels are exempt from this VGP and will be subject to a separate regulatory regime to be established by EPA and the Coast Guard.
Discharges Covered and Obtaining Coverage under the VGP
the date that EPA receives the NOI. Vessels delivered after September 19, 2009 will receive permit coverage 30 days after EPA receives the NOI.
Inspections, Corrective Actions, Recordkeeping, Reporting, and Training
enforcement strategy. One thing that is clear is that it does not have adequate resources. We understand that EPA is reaching out to the Coast Guard but the Coast Guard has been reticent to assist.
State Discharge Requirements
Under the final VGP, discharges incidental to the normal operation of a vessel into the navigable waters of the United States (i.e. within three nautical miles of the shoreline) are subject to the permit. In short, all commercial vessels
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The final VGP covers 26 discharges from vessels by utilizing effluent limits established and specific Best Management Practices (BMPs) to control specified discharges, including deck runoff, bilge water, ballast water, chain locker effluent, all oil sea interfaces that could result in lubrication discharges such as stern tubes, fire main systems, gray water, well deck, and exhaust gas scrubber wash water. In addition, the following eight specific types of vessels will have additional requirements designed to address discharges due to features unique to those vessels: medium and large cruise ships, large ferries, barges, oil or petroleum tankers, research vessels, emergency vessels, and vessels employing experimental ballast water treatment systems. Failure to obtain coverage under the VGP will mean that discharges incidental to the normal operation of a vessel are prohibited within three nautical miles of the shoreline. Commercial vessels less than 300 gross tons with no more than eight cubic meters of ballast water will automatically be covered and authorized to discharge according to the VGP requirements. In order for the owners and operators of larger vessels to obtain VGP permit coverage, a Notice of Intent ("NOI") must be submitted for coverage. The NOI must be submitted between June 19 and September 19, 2009. Prior to these NOI submission dates, however, this class of vessels will be deemed automatically authorized to discharge under the VGP. For vessels delivered up to September 19, 2009, the vessel will receive permit coverage on
This is one of the scariest parts of this new regime. The marine industry has no experience with general permits. Fortunately, the final VGP delays the requirements for inspections, training, recordkeeping, and reporting until February 19, 2009. This means industry will have an additional two weeks following the date of compliance set by the court to figure out how to establish its company program in this regard. The final VGP sets forth a routine inspection schedule program requiring a company to establish per voyage or weekly, quarterly, and annual inspections, which must be logged in the ship's log or other recordkeeping mechanisms. Analytical lab reports are required in some cases. Reports of noncompliance are required at least once a year and a one-time permit report is required between 30 and 36 months after obtaining permit coverage. If a discharge could endanger health or the environment, an oral report is required within 24 hours followed by a written report in five days. There are training requirements depending on the class of vessel. Penalties and Enforcement If "violations" to effluent limits are found, or there is any other action not in compliance with the VGP, a corrective action assessment must be conducted, the vessel must be returned to compliance within certain deadlines, and findings documented. The NOI and all additional reports submitted to EPA require certification that the information is true and accurate and that the person making the certification is aware that there are significant penalties for submitting false information. The failure to comply with the permit constitutes a violation of the VGP and CWA, and the failure to remedy "violations" within a specified time constitutes an additional violation. Penalties under the VGP subject a person to a $10,000 fine or imprisonment for two years or both for first violations and double this amount for subsequent violations. There are even more severe penalties under the CWA. It is unclear at this time how EPA will enforce this new regime as it is still developing its
Under the CWA, EPA must obtain what is called CWA Section 401 certifications. Specifically, each state and Indian Tribes that will be impacted by vessels discharging in its waters is given an opportunity to insert additional requirements into the permit to ensure consistency with its state water quality requirements. Under the CWA, additional effluent limitations, and other requirements, become a condition of the VGP. In accordance with the VGP, all jurisdictions except Alaska and Hawaii have granted, denied, or waived jurisdiction. Thus, the final VGP does not provide for coverage in the waters of those two states at this time. Pursuant to this section 401 certification process, the final VGP contains 43 pages of additional state and tribal permit requirements for 28 states and Indian tribes. These state-specific requirements will need to be examined closely because each of these state or tribal requirements will require a vessel owner or operator to comply with these requirements when operating in these waters. For example, California, among other things: (1) requires that all vessel discharges in its waters comply with the numeric effluent limitations contained in its statewide and regional water quality control plans; (2) mandates that effluent monitoring be performed on all waste stream discharges to determine waste stream quantity and quality; and (3) requires the volume of each discharge to be measured or estimated, and certain constituents monitored.
Recommendations
The following are some key recommendations to consider now that the industry will have at least some time to review the final VGP and implement its company compliance policy to meet the deadlines established above. � Applicability of Permit Requirements Seaward of Navigable Waters: Clearly, the VGP discharge requirements are limited to discharges within three nautical miles of the coastline. But it is unclear when an owner or operator must conduct inspections, take
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