Draft Vessel General Permits to Impose Numeric Limits for Ballast Water, Extend Regulation to Small VesselsBy Meline MacCurdy
EPA is currently considering comments on two draft permits for vessel discharges under the Clean Water Act (CWA) that would, for the first time, set numeric effluent limits for ballast water discharges from large commercial vessels and cover incidental discharges from small vessels. The draft Vessel General Permit (VGP), governing discharges from vessels greater than 79 feet long, would replace the existing permit when it expires at the end of December 2013. The most significant change in the draft VGP is the inclusion of numeric effluent limits to control the release of invasive species in ballast water, a change made in response to a settlement agreement reached with Michigan and environmental groups. See EPA to Add Numeric Limits to Ballast Water Discharge Rules Under Settlement with Environmental Groups. The draft Small Vessel General Permit (sVGP) would regulate incidental discharges from vessels under 79 feet long. Small vessels have been exempt from most permit requirements due to a Congressional moratorium, but that moratorium is set to expire in December 2013. EPA intends to release the final permits in November 2012 to allow stakeholders and regulated entities time to review and understand the new permit requirements.
Under the CWA, a National Pollutant Discharge Elimination System (NPDES) permit is required for discharges of any “pollutant” from a “point source,” including a “vessel or floating craft,” into navigable waters of the United States. The term “pollutant” includes “biological materials.” EPA initially excluded “incidental discharges” from vessels from the permitting requirements of the NPDES program, but, as discussed below, developed the current VGP in 2008 under court order.
The term “incidental discharges” encompasses a range of wastewater discharges from vessels during normal operations. For example, “graywater” is water than has been slightly used, such as water from laundry or bathing and “bilge water” is water that collects on the inside of a vessel and is pumped out. Also included in the definition is “ballast water,” which has been the focus of the dispute regarding incidental vessel discharges for some time. Ballast water is water that a vessel takes in and/or releases to compensate for changes in the vessel’s weight as cargo is loaded or unloaded, or as fuel and supplies are consumed. As a vessel travels, it can inadvertently bring on board aquatic organisms in ballast water from one port, then release those same organisms at another port, where they are not native and can cause environmental harm. The zebra mussel is probably the most publicized example of an invasive species whose inadvertent introduction to U.S. waters has caused unintended harm. In the Pacific Northwest, fish and wildlife agencies are particularly concerned about the introduction of invasive aquatic species such as smooth cordgrass, Oyster drill, European green crabs, non-native tunicates, and zebra mussels, all passengers in ballast water.
Environmental petitioners and, eventually, intervening states challenged the regulation exempting incidental vessel discharges nearly thirty years after the regulation took effect. The Northern District of California vacated EPA’s exemption for incidental discharges in decisions issued in 2005 and 2006, holding that the exemption exceeded EPA’s authority under the CWA and that a permit is necessary for all vessel discharges that had been exempted by EPA’s regulation. In 2008, the Ninth Circuit affirmed the district court’s decision. In light of the significant impact of the decision on the national shipping industry and regulatory agencies, the court granted EPA a stay of its decision vacating the regulation until February 6, 2009 to allow EPA time to implement a permit for vessel discharges.
EPA responded by developing the current VGP, which it issued in December 2008. Beginning February 6, 2009, all non-exempt vessels operating as a means of transportation that discharge ballast water or other incidental discharges into waters of the United States were required to seek coverage under the VGP. Due in part to legislative action in response to the Ninth Circuit’s decision, the VGP covers all incidental discharges from non-recreational vessels greater than 79 feet in length, except commercial fishing vessels, and ballast water discharges from all non-recreational vessels (except vessels of the armed forces). The VGP establishes non-numeric effluent limits and a range of best management practices (BMPs) for twenty-six types of incidental discharges. The permit also incorporates U.S. Coast Guard requirements for ballast water management and exchange, sets specific requirements for ballast water exchanges for certain vessels, and sets training, documentation, and reporting requirements for vessels equipped with ballast water tanks.
The Draft VGP
EPA’s draft VGP will replace the existing VGP when it expires at the end of 2013. The permit covers large vessels operating in a capacity as a means of transportation, such as commercial fishing vessels (which are currently exempt from permit requirements due to Congressional action), cruise ships, ferries, barges, mobile offshore drilling units, oil tankers or petroleum tankers, bulk carriers, cargo ships, container ships, other cargo freighters, refrigerant ships, research vessels, and emergency response vessels.
The most significant change in the draft VGP is the inclusion of numeric effluent limits for ballast water expressed as the maximum concentration of living organisms in ballast water, as opposed to the current non-numeric requirements. EPA based the numeric effluent limits in the draft VGP on independent studies by the EPA Science Advisory Board and National Research Council National Academy of Sciences. EPA states that the numeric effluent limits are expected to substantially reduce the risk of introduction and establishment of invasive species in U.S. waters.
The numeric effluent limits in the draft VGP would not apply to all vessels, and the draft permit includes a staggered implementation schedule for when certain existing vessels must achieve the numeric effluent limits for ballast water: by the first drydocking after January 1, 2014 or January 1, 2016, depending on the vessel size. Vessels that have deferred deadlines for meeting the numeric standards would be required to meet BMPs, which would be substantially similar to current requirements. New vessels constructed after January 1, 2012 that are subject to the numeric effluent limits would be required to meet the limits upon entering U.S. waters when the permit takes effect. Vessels that are subject to the numeric effluent limits for ballast water would be required to meet these limits in four ways: (1) discharge ballast water that meets the applicable numeric limits in the draft VGP; (2) transfer the ship’s ballast water to a third party treatment at an NPDES permitted facility; (3) use treated municipal/potable water as ballast water; or (4) not discharge ballast water. Like the 2008 permit, vessels that are enrolled in and meet the requirements for the Coast Guard’s Shipboard Technology Evaluation Program would be deemed in compliance with the numeric limitations.
The second substantial change in the draft VGP is several revisions to non-ballast water discharges. For example, the draft VGP would impose more stringent technology-based effluent limits in the form of BMPs for discharges of oil-to-sea interfaces, where new vessels would be required to use “environmentally acceptable lubricants” in their oil-to-sea interfaces. Additionally, the draft VGP would allow discharges of fish hold effluent and impose BMPs for these discharges. Finally, the draft VGP includes monitoring requirements for some larger vessels for graywater, exhaust gas scrubber effluent, and ballast water.
The draft VGP also includes several administrative improvements, such as a clarification that electronic recordkeeping is appropriate, streamlined reporting requirements into one annual report (as opposed to an annual report and a one-time report), and the opportunity for a combined annual report for unmanned, unpowered barges, subject to specified criteria.
In addition to the new requirements in the draft VGP, vessel owners and operators will be required to meet tribal and state-specific requirements under the CWA’s § 401 certification process. In a July 2011 decision, the D.C. Circuit upheld these requirements in EPA’s current VGP over challenges from industry. See Vessels Required to Meet State as Well as Federal Permit Conditions for Incidental Wastewater Discharges. Because the CWA § 401 process allows tribes and states to impose their own requirements for vessels operating within their waters, vessels operating in multiple jurisdictions could face potentially conflicting conditions specific to each jurisdiction that they travel through.
The draft VGP includes a tiered requirement for obtaining coverage based on the size of the vessel and the amount of ballast water carried. Vessels that are smaller than 300 gross tons and do not have the capacity to carry more than eight cubic meters of ballast water would not need to submit notices of intent (NOIs) to receive permit coverage. However, these entities would be required to complete a Permit Authorization and Record of Inspection form, maintain it on the vessel, and comply with the permit terms. EPA’s approach is based on the likelihood that approximately 72,000 vessels will be covered by the permit, but requiring NOIs from all of these vessels would place an unnecessary administrative burden on EPA and the regulated community.
The Draft Small VGP
The draft sVGP would be the first to address discharges incidental to normal operations of commercial vessels under 79 feet long. Recognizing the differences between small and large commercial vessels, such as the fact that small commercial vessels generally have fewer discharge types and different resources to manage their vessels than larger commercial vessels, EPA designed the sVGP to be more streamlined than the VGP. For example, the sVGP groups discharges into broad categories divided into general requirements, fuel management, engine and oil control, solid and liquid waste management, deck washdown and runoff and above water line hull cleaning, vessel hull maintenance, graywater management, fish hold effluent management, and ballast water management. The draft permit includes effluent limits for these discharges in the form of BMPs – not numeric standards – designed to minimize the discharges, in addition to suggested BMPs. Additionally, the draft sVGP would not require owners or operators to submit NOIs to obtain permit coverage, but would require owner/operators to maintain a Permit Authorization and Record of Inspection on board the vessels and comply with permit terms.
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