Surviving the VIDA Loca

Jeanne M. Grasso

On December 4, 2018, the Frank LoBiondo Coast Guard Authorization Act of 2018 (the “Act”) was signed into law. Title IX of the Act is the Vessel Incidental Discharge Act of 2018 (“VIDA”). VIDA establishes a new framework for the regulation of discharges incidental to the normal operation of vessels, adding a new Section 312(p) to the Clean Water Act, Uniform National Standards for Discharges Incidental to Normal Operation of Vessels. VIDA is the culmination of years of discussion and debate within Congress and the maritime industry to bring consistency and certainty to the regulation of discharges from U.S. and foreign-flag vessels. How and whether this consistency and certainty will occur will be seen in the next several years.

Background

VIDA was born primarily out of a lawsuit relating to the U.S. Environmental Protection Agency’s (“EPA”) exemption of vessels from the Clean Water Act’s National Pollutant Discharge Elimination System (“NPDES”) permitting program. By its terms, the NPDES permitting program, which regulates discharges of pollutants from point sources into the navigable waters of the United States (generally within three miles from shore), applies to discharges incidental to the normal operations of a vessel because a vessel is a point source when in navigable waters.

The EPA exempted vessels from the permitting program in 1973 because of the burden permitting thousands of vessels would have created. However, in 2006, a federal court determined that the EPA had exceeded its authority in exempting vessels from the permitting program and ordered the EPA to issue permits for discharges incidental to the normal operation of vessels. As a result, the EPA developed the 2008 Vessel General Permit (“VGP”), which went into effect in February 2009. The 2008 VGP was replaced by the 2013 VGP, which contained some more stringent requirements, including numeric limits on ballast water discharges, a requirement to use environmentally acceptable lubricants, and new monitoring requirements for ballast water, bilge water, and graywater.

The 2013 VGP was set to expire in December 2018, but the EPA extended it indefinitely following VIDA’s enactment rather than issuing a new 2018 VGP. As such, the 2013 VGP will remain in effect until VIDA is fully implemented.

EPA and USCG Obligations under VIDA

VIDA requires the EPA to develop federal performance standards for “marine pollution control devices”1 to manage incidental discharges from vessels. These federal performance standards must be developed in consultation with the U.S. Coast Guard (“USCG”) and the states, published for review and comment, and finalized within two years (i.e., by December 2020).

The USCG and EPA are already working together to implement VIDA. The EPA is expected to publish its draft standards in January 2020, likely with a 60-day comment period. Once these standards are finalized, the USCG must develop regulations implementing the standards, including compliance, monitoring, inspections, and enforcement, within two years. Therefore, the current regulatory regime for the regulation of incidental discharges—including ballast water—will remain the status quo for at least four more years. (That said, the regulatory process is often replete with delays and challenges, so four years may be rather optimistic!)

In developing standards under VIDA, the EPA may not revise a performance standard to be less stringent than an existing requirement in either the VGP or USCG regulations unless information becomes available that was not reasonably available when the initial standard of performance was issued and that information would have justified a less stringent standard. The same is true for the USCG’s regulations for monitoring and enforcing compliance, and governing the design, construction, testing, approval, installation, and use of marine pollution control devices.

Other VIDA Provisions Important to the Maritime Industry

Setting uniform federal discharges standards for incidental vessel discharges and publishing new regulations for compliance and enforcement is at the heart of VIDA, but there are several other key provisions in VIDA of which the maritime industry should be aware:

    • Regulations under VIDA Will Preempt State and Local Law
      • While state and local laws are generally preempted, some existing state law provisions, such as in Alaska, California, and the Great Lakes, have been incorporated into VIDA.
      • States may petition the USCG to establish stricter standards if the state can establish that more stringent regulation would reduce adverse effects of discharges and be economically achievable and operationally practicable.
      • States also may petition to establish no discharge zones where certain types of discharges would not be allowed. Such petitions are subject to EPA and USCG approval.
    • VIDA Repealed the Small Vessel General Permit
      • This repeal created a permanent exemption for small vessels (< 79 feet) and fishing vessels (except for ballast water).
    • States Will Have Inspection and Enforcement Authority over Federal Standards
      • States may even charge a fee for such inspections.
    • VIDA Requires the USCG to Publish a Draft Policy Letter by June 2019
      • The policy letter must describe type-approval testing methods and protocols for ballast water management systems that render non-viable (versus dead) the organisms in ballast water.
      • The USCG also must consider testing methods that use the most probable number (“MPN”) statistical analysis to determine the concentration of organisms capable of reproduction.
      • There will be a 60-day comment period following publication of the draft letter.
      • The USCG must publish a final policy letter by December 4, 2019. Depending on the outcome, this could open the door for the acceptance of additional ballast water management systems that could not previously meet USCG’s type-approval requirements.
    • VIDA Extended the Jurisdiction for Regulating Incidental Discharges to 12 Nautical Miles
      • This marks a major change from the VGP, which only applied out to three nautical miles. applied out to three nautical miles.

Outlook

The EPA is likely to use the 2013 VGP as the starting point for setting performance standards under VIDA. Because the 2018 VGP was substantially drafted (but never published), the EPA should already have a solid head start. In fact, many in the industry expect the EPA’s proposal to be similar to the current VGP.2

Finally, the EPA’s new standards will still need to address the federal court ruling in 2015 that the EPA acted arbitrarily and capriciously in drafting the ballast water discharge provisions of its 2013 VGP.3 In that case, the court found that the EPA failed to adequately explain why stricter technology-based effluent standards should not be applied, failed to give fair and thorough consideration to onshore treatment options, and failed to adequately explain why pre-2009 Lakers were exempted. The EPA was expected to address the court’s ruling and reconsider the VGP ballast water provisions in the 2018 VGP, but because the 2018 VGP has been shelved, the court’s findings must be implemented into the new standards and regulations under VIDA.

Conclusion

VIDA establishes a new framework for regulating discharges incidental to the normal operation of vessels and is one of the most sweeping changes in maritime environmental law in years. Many parts of VIDA are positive for the industry, yet others are concerning. Just how concerning will become clear during the implementation phase. In other words, “time will tell.”

In the meantime, the maritime industry must remain engaged, participate in the expected public meetings, and actively review and comment on the proposals as they come out. Doing so will help ensure that VIDA provides the consistency and certainty necessary for an efficient and profitable maritime industry.


1 “Marine pollution control device” is defined as any equipment or best management practice (or a combination of the two) for installation or use onboard a vessel that is designed to treat, control, or otherwise manage a discharge incidental to the normal operation of a vessel, which is determined by the EPA and USCG to be the most effective equipment or management practice to reduce the environmental impacts of the discharge.

2 As a refresher, under the VGP, ship owners/operators are required to meet technology-based effluent limits (material storage, toxic and hazardous materials, fuel spills/overflows) and effluent limits related to 27 specific categories of discharges, such as such as deck runoff, bilge water, ballast water, chain locker effluent, oil-to-sea interfaces, fire main systems, graywater, and exhaust gas scrubber wash water, among others.

3 See Second Circuit: EPA Acted “Arbitrarily and Capriciously” regarding Ballast Water in the VGP, Blank Rome Maritime Advisory (October 2015, No. 9).