EPA General Permit for Ballast Water Discharges Goes Into Effect

Beginning February 6, 2009, as many as 61,000 domestically flagged commercial vessels and 8,000 foreign flagged vessels, including cruise ships, will have to comply with EPA’s new Vessel General Permit (“VGP”) in order to discharge ballast water into waters of the United States. EPA has historically exempted ballast water discharges, and other discharges incidental to the normal operation of vessels (“incidental discharges”) from Clean Water Act NPDES permit requirements. Covered vessels will need to comply with a range of Best Management Practices (“BMPs”), reporting and other requirements.

Background

Incidental discharges from vessels include ballast water, gray water (slightly used water, such as laundry or bathwater), bilge water, deck runoff, and black water (sewage). Among these discharges, regulators are most concerned about ballast water, which is water that is taken in or released by cargo vessels to compensate for changes in a ship’s weight as cargo is loaded or unloaded, or as fuel and supplies are consumed. When a vessel takes in ballast water, it also takes in aquatic organisms that may then be carried from one port to another along the vessel’s route. When ballast water is released, non-native or invasive species may be introduced into new environments where they can cause environmental harm. The zebra mussel is probably the most publicized example of an invasive species whose inadvertent introduction to U.S. waters caused adverse economic and ecological consequences.

On March 30, 2005, the U.S. District Court for the Northern District of California ruled that EPA’s regulatory exemption (40 C.F.R. § 122.3(a)) of incidental discharges exceeded the agency’s statutory authority.[1] The district court subsequently vacated EPA’s exemption at 40 C.F.R. § 122.3(a) as of September 18, 2006. On July 23, 2008, the U.S. Court of Appeals for the Ninth Circuit upheld the district court’s decision. In answer to the court’s order, EPA developed two draft general permits to regulate incidental discharges from vessels: the Recreational Vessel General Permit and the Vessel General Permit.[2] EPA issued the final Vessel General Permit (“VGP”) on December 18, 2008.[3] The district court later extended the date of vacatur until February 6, 2009.

Following issuance of the draft permits, Congress signed two relevant bills into law. In the Clean Boating Act of 2008 (S.2766), Congress exempted recreational vessels from NPDES permitting requirements. As a result of this law, passed in July 2008, EPA did not finalize the Recreational Vessel General Permit and operators of recreational vessels need not obtain an NPDES permit for ballast water or other discharges incidental to their normal operation. On July 31, 2008, Congress enacted a second law, P.L. No. 110-299 (S. 3298), which precludes EPA and states from requiring an NPDES permit for incidental discharges from vessels less than 79 feet in length, and for commercial fishing vessels of any length, during a two year period beginning on the date of law’s enactment. The two-year moratorium established by this law, however, does not apply to ballast water discharges (among other discharges).

The VGP

Effective February 6, 2009, all vessels operating as a means of transportation that discharge ballast water or other incidental discharges into waters of the United States require coverage under the VGP,[4] except for (1) recreational vessels, as defined in CWA § 502(25); and (2) vessels of the armed forces, as defined in 40 C.F.R. § 1700.3. In addition, as required by P.L. No. 110-299, commercial fishing vessels and non-recreational vessels that are less than 79 feet in length are not subject to this permit, with the exception of ballast water discharges. Vessels that are covered under the new permit include commercial fishing vessels (only for ballast water), cruise ships, research vessels, ferries, oil tankers or petroleum tankers, barges, bulk carriers, cargo ships, container ships, other cargo freighters, mobile offshore drilling units, refrigerant ships, government vessels not part of the armed forces, emergency response vessels, and any other vessels operating in a capacity of transportation.[5]

The new permit requires vessel owners and operators to comply with a range of BMPs, reporting, and other requirements, for a number of incidental discharge types. Twenty-six types of incidental discharges are covered by the permit. These discharges include ballast water; gray water; deck runoff (including rainwater) and above water line hull cleaning; bilge water/oily water separator effluent; anti-fouling leachate from anti-fouling coatings/hull coating leachate; aqueous film forming foam; boiler/economizer blowdown; and cathodic protection; among others. For each waste stream, the permit establishes non-numeric effluent limits and BMPs to control the discharge of waste streams and what they contain. Certain other discharges are not covered by the VGP, including sewage, used or spent oil, garbage or trash, photo processing effluent, effluent from dry cleaning operations, and discharges of medical waste.

The permit incorporates U.S. Coast Guard requirements for ballast water management and exchange, as set forth at 33 C.F.R. Part 151, Subparts C and D. In addition to regulatory requirements, vessels which declare “No Ballast on Board” (NOBOB) entering the Great Lakes after operating beyond the U.S. EEZ must also conduct mandatory saltwater flushing, as required by Coast Guard policy. In addition to the Coast Guard BMPs, the VGP requires vessels engaged in Pacific nearshore voyages that will discharge ballast water into jurisdictional waters to conduct ballast water exchanges at 50 nm from shore before arrival.[6] Vessels must also use onshore treatment of ballast water tanks “if compatible onshore treatment for ballast water is practicable and achievable.”[7] Finally, all owner/operators of vessels equipped with ballast water tanks must comply with a number of training, documentation and reporting requirements.

The permit also includes specific technology based requirements for eight types of vessels, including large cruise ships, medium cruise ships, large ferries, barges, oil and petroleum tankers, research vessels, and emergency vessels, to address features unique to these vessels. For example, under the permit, large cruise ships must meet secondary treatment standards for gray water if discharging gray water within 1 nautical mile from shore.

Twenty-eight states, Tribes, and Territories have added specific requirements to the permit through the CWA 401 certification process. The 401 certification requirements vary from state to state, and, in some cases, require vessels to install ballast water treatment technology to meet biological performance standards by dates certain. Permittees will need to be familiar with the conditions applicable to the waters in which they will be operating to ensure compliance with the permit.

Filing and Reporting

No earlier than June 19, 2009, owners and operators of vessels greater than or equal to 300 gross tons and which have the capacity to hold or discharge more than 2113 gallons of ballast water must submit a Notice of Intent (NOI) to receive permit coverage. The NOI states that the vessel operator will comply with the permit. Vessels that are subject to the VGP but with less capacity are not required to submit an NOI. Such vessels are automatically covered under the permit, and are authorized by the VGP to discharge in accordance with the permit requirements. After issuance of the VGP, a permittee may apply to EPA for an individual permit instead of receiving coverage under the general permit. Under certain circumstances,[8] EPA may also require a discharger apply for and obtain an individual permit in lieu of general permit coverage.

In order to remain covered by the VGP, vessels will need to comply with numerous inspection, monitoring, reporting and recordkeeping requirements. Vessel owners/operators must conduct and document routine self-inspection to track compliance with the permit, and must conduct a comprehensive vessel inspection every 12 months. All vessels must keep detailed written records to document voyage information, violations of any effluent limits, deficiencies and problems identified during routine inspections, analytical results from required monitoring, training records, and specific information related to ballast water, and other information. Vessel owners/operators must also submit a one-time report 30-36 months after obtaining permit coverage.

Enforcement

Any noncompliance with the requirements of the VGP constitutes a violation of the CWA. Vessel owners and operators that do not comply with permit conditions may be subject to potential enforcement by EPA. In addition, citizens may seek to hold owners and operators liable under the citizen suit provision of § 505 of the CWA for permit violations.

Conclusion

Environmental groups have filed petitions for review in the Ninth Circuit challenging the VGP. Opening briefs are due in February and March. While those cases are pending, vessel owners and operators will need to ensure that they have procedure in place to comply with the VGP, in addition to existing applicable state, federal and international laws.

For more information, please contact any member of Marten Law Group’s Water Quality or Permitting and Environmental Review practice groups.