Category: Ballast Water/Emissions

EPA Signs Final Vessel Incidental Discharge National Standards of Performance Rule

Jeanne M. Grasso and Holli B. Packer ●

On September 20, 2024, the Environmental Protection Agency (“EPA”) signed a highly anticipated final rule establishing national standards for incidental discharges from vessels into waters of the United States, albeit nearly four years after its statutory deadline. However, existing requirements included in the 2013 Vessel General Permit (“VGP”) will remain in place until these new EPA and forthcoming U.S. Coast Guard regulations under Clean Water Act section 312(p) are final, effective, and enforceable. The U.S. Coast Guard has two years to issue its final rule implementing EPA’s standards.

Continue reading “EPA Signs Final Vessel Incidental Discharge National Standards of Performance Rule”

USCG Considers Organism Viability Testing Methods to Achieve Type Approval of Ballast Water Management Systems

Jeanne M. Grasso and Holli B. Packer  ●

On August 21, 2024, the U.S. Coast Guard (“USCG”) outlined its intent to prepare the “Viability Testing Method Consideration for Acceptance Programmatic Environmental Impact Statement (“PEIS”)” in the Federal Register (89 Fed. Reg. 67646), which will be used to evaluate, and potentially adopt, organism viability testing methods to demonstrate that ballast water discharges meet required performance standards. Comments were due on or before October 7, 2024.

Continue reading “USCG Considers Organism Viability Testing Methods to Achieve Type Approval of Ballast Water Management Systems”

USCG Requests Information on Ballast Water Management Procedures Under the Vessel General Permit and USCG Regulations

Jeanne M. Grasso, Dana S. Merkel, and Holli B. Packer ●


The U.S. Coast Guard (“USCG”) published a Request for Information (“Request”) on June 7 in the Federal Register (89 Fed. Reg. 48515) seeking information on the monitoring, recordkeeping, and reporting procedures under the U.S. Environmental Protection Agency’s (“EPA”) Vessel General Permit (“VGP”) and the USCG’s ballast water management requirements. With the USCG’s inquiry focused on the resources devoted per vessel to compliance requirements, the USCG plans to use the information provided to “evaluate new and updated solutions that inform data-driven policymaking, reduce the reporting and record-keeping burden on industry, and confirm environmental compliance.” While not stated explicitly, the Request is clearly a precursor to the USCG’s development of a proposed rule pursuant to the Vessel Incidental Discharge Act (“VIDA”). Comments are due by July 22, 2024.

Interested parties are encouraged to review the Request carefully and provide their insights, either individually or through trade associations, prior to the July 22, 2024, deadline as this Request is a critical precursor to implementation of VIDA.

Background

2013 Vessel General Permit. The VGP was issued under the Clean Water Act’s (“CWA”) National Pollutant Discharge Elimination System program and provides permit coverage nationwide for discharges incidental to the normal operation of commercial vessels more than 79 feet in length. EPA issued the first version of the VGP in 2008 and then another, more stringent, version in 2013. The VGP set effluent limits and mandated Best Management Practices to control certain types of incidental discharges. It also required vessels to conduct routine and annual inspections and imposed numerous recordkeeping obligations, as well as monitoring and reporting requirements.

USCG Ballast Water Management. The USCG published a final rule addressing ballast water management, which became effective in June 2012. These regulations, codified in 33 C.F.R. Part 151, mandate ballast water management requirements, including type-approved ballast water management systems. They further outline required Best Management Practices and monitoring, recordkeeping, and reporting requirements.

Vessel Incidental Discharge Act. In December 2018, VIDA was signed into law and intended to replace the VGP to bring uniformity, consistency, and certainty to the regulation of incidental discharges from U.S. and foreign-flag vessels. VIDA amended the CWA and will substantially alter how EPA and the USCG regulate vessel discharges. VIDA required EPA to finalize uniform performance standards for each type of incidental discharge by December 2020, a deadline that the EPA has missed by more than three years, and requires the USCG to implement EPA’s final standards within two years thereafter.

Please click here for the full client alert.

Finally—A Path Forward for Implementation of the Vessel Incidental Discharge Act

Jeanne M. Grasso and Dana S. Merkel

Background

In December 2018, the Vessel Incidental Discharge Act (“VIDA”) was signed into law and intended to replace the Environmental Protection Agency’s (“EPA”) 2013 Vessel General Permit (which has been in place for nearly ten years) to bring uniformity, consistency, and certainty to the regulation of incidental discharges from U.S. and foreign-flag vessels. VIDA amended the Clean Water Act and will substantially alter how EPA and the United States Coast Guard (“USCG”) regulate vessel discharges. VIDA required EPA to finalize uniform performance standards for each type of incidental discharge by December 2020, a deadline that the EPA has missed by nearly three years, and requires the USCG to implement EPA’s final standards within two years thereafter.

In October 2020, EPA published a proposed rule titled Vessel Incidental Discharge National Standards of Performance to implement VIDA, but the proposal languished with the change from the Trump Administration to the Biden Administration. In January 2023, more than two years later, EPA announced its plans to issue a Supplemental Notice of Proposed Rulemaking in the Fall of 2023. EPA indicated that the Supplemental Notice was intended to clarify its proposed rule, share ballast water data compiled by the USCG, and propose additional regulatory options.

Continue reading “Finally—A Path Forward for Implementation of the Vessel Incidental Discharge Act”

Mainbrace Live: U.S. Maritime Regulatory Update

Blank Rome’s internationally recognized Maritime & International Trade practice group presents a new series of informative webinars covering hot topics in the shipping industry and key insights into 2021 and beyond. Sessions will cover:

    • Sanctions and international trade
    • Offshore wind developments
    • Shipping litigation
    • Maritime regulation
    • Ship finance
    • And more!

For the fourth webinar in our Mainbrace Live series, Blank Rome LLP attorneys Jeanne M. Grasso, Dana S. Merkel, and Stefanos N. Roulakis presented “U.S. Maritime Regulatory Update” on Tuesday, June 22, 2021.

Jeanne, Dana, and Stefanos discussed:

    • The conundrum in ballast water management: VIDA, VGP, and the IMO
    • Ongoing industry challenges as COVID-19 continues
    • Emerging greenhouse gas regulation and shipping

MODERATOR

    • Jeanne M. Grasso, Partner and Co-Chair, Maritime & International Trade Practice Group

PRESENTERS

    • Dana S. Merkel, Associate, Maritime Practice Group
    • Stefanos N. Roulakis, Associate, Maritime Practice Group

To watch a recording of this webinar, please go to the webinar on-demand registration page here.

EPA’s Long-Anticipated VIDA Proposed Rule Now Available

Jeanne M. Grasso and Dana S. Merkel

NEW DEVELOPMENT

The U.S. Environmental Protection Agency (“EPA”) made available its long-anticipated standards for discharges incidental to the normal operation of vessels pursuant to the Vessel Incidental Discharge Act (“VIDA”) on October 6, 2020. Signed into law on December 4, 2018 as part of the Frank LoBiondo Coast Guard Authorization Act of 2018, VIDA established a new framework for the regulation of discharges incidental to the normal operation of vessels in an attempt to bring consistency and certainty to the regulation of discharges from U.S.- and foreign-flag vessels.

The first step in implementing VIDA requires EPA to develop federal performance standards for “marine pollution control devices,” which includes any equipment or management practice (or combination thereof) to manage incidental discharges from vessels. After some delays, EPA posted its notice of proposed rulemaking on October 6, available here, to set standards for 20 types of vessel discharges incidental to normal operations. The program implemented under VIDA will replace EPA’s Vessel General Permit and certain U.S. Coast Guard (“USCG”) regulations for ballast water a few years from now, after the USCG finalizes regulations to implement EPA’s standards, including compliance, monitoring, inspections, and enforcement.

BACKGROUND

VIDA was the culmination of years of discussion, debate, and litigation concerning discharges incidental to the normal operation of vessels. Although back in the 1970s EPA initially exempted these discharges from the Clean Water Act’s National Pollutant Discharge Elimination System (“NPDES”) permitting program due to the burden of permitting every vessel entering U.S. waters, a federal court ruled in 2006 that EPA must issue permits for vessel discharges. In response, EPA developed the 2008 Vessel General Permit (“VGP”). The 2008 VGP was eventually replaced by the 2013 VGP, which contained some more stringent requirements, such as numeric limits on ballast water discharges, a requirement to use environmentally acceptable lubricants, and new monitoring requirements for ballast water, bilge water, and graywater.

Please click here for the full client alert.

Navigating the Maritime Regulatory Response to the COVID-19 Pandemic

Jeanne M. Grasso, Jonathan K. Waldron, Dana S. Merkel, and Stefanos N. Roulakis

Maritime stakeholders should examine key guidance documents that have been published by U.S. government agencies in response to the coronavirus pandemic. Some of these guidance documents create new opportunities for stakeholders, while others may impact operations in U.S. waters. Regardless of effect, businesses involved in maritime commerce should be aware of these updates and plan accordingly. For example, companies who depend on non-U.S. citizen crews for operations in U.S. waters should be adequately prepared to equip crew with support letters during visa interviews and transit to the United States. And, vessel owners and operators with upcoming ballast water compliance dates should examine whether installation is feasible in this climate and seek extensions to their compliance date if it is not.

EW DEVELOPMENTS

The COVID-19 pandemic and the logistical and operational challenges it has caused have raised a host of questions within the maritime industry. A number of government agencies have sought to clarify expectations and even ease some requirements for the industry. Some of these changes, such as changes to the approach to extending the compliance date for installation of ballast water management systems, were directly intended to benefit the maritime industry. Other updates, such as the U.S. entry restrictions instituted via a Presidential Proclamation, did not target the maritime industry, but the impact was felt by companies that rely on the ability to have crewmembers travel through the United States. Below is a summary of some key guidance documents that are affecting the maritime industry during this pandemic.

ANALYSIS

Visas and Entry Restrictions

On March 14, 2020, a Presidential Proclamation entitled “Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus” (available here) was issued, which included a travel ban for several countries. This Proclamation contained an exception for “any alien traveling as a nonimmigrant pursuant to a C‑1, D, or C-1/D nonimmigrant visa as a crewmember or any alien otherwise traveling to the United States as air or sea crew.” However, there have been significant problems for holders of B-1 visas for offshore work, which stems from differing interpretations from U.S. Customs and Border Protection (“CBP”) and the State Department. To date, industry is still experiencing difficulty with some embassies, which apparently are not recognizing that B-1 crew type visas are exempt from the Presidential Proclamation and should be considered mission critical, leading to reluctance on the part of some embassies around the world to issue these visas on an emergency basis. Support letters should be provided to crew seeking appointments and these crew type visas.

Please click here for the full client alert.

MARPOL Annex VI Enforcement—Are You Prepared?

Tips to Enhance Compliance and Reduce Enforcement Risk

Jeanne M. Grasso and Kierstan L. Carlson

The United States has been aggressively enforcing compliance with the International Convention for the Prevention of Pollution from Ships (“MARPOL”) for nearly 30 years. Enforcement actions have been brought against ship owners and operators across the industry, as well as against individual masters, engineers, shoreside personnel, and other corporate officers.

To date, most MARPOL prosecutions have involved violations of MARPOL Annex I through “magic pipe” bypasses of the Oily Water Separator (“OWS”) or improper discharges of sludge, though some have involved Annex V garbage violations and, very recently, Annex VI emissions violations. Few, other than in the early 1990s, have involved illegal discharges in U.S. waters; rather, virtually all cases have been brought for false entries in the ship’s records, including the Oil Record Book (“ORB”) and Garbage Record Book. This is because maintaining inaccurate records while in domestic waters or presenting inaccurate records to the U.S. Coast Guard (“USCG”) during an inspection is a crime and the jurisdictional hook needed for prosecution. Most cases also involve some kind of unlawful “post-incident conduct” that constitutes an independent crime under U.S. law, such as destroying records or lying to USCG inspectors or special agents. Continue reading “MARPOL Annex VI Enforcement—Are You Prepared?”

Ballast Water Management—Latest Developments

Jeanne M. Grasso

Much has changed over the past year regarding compliance with the U.S. Coast Guard’s (“USCG”) ballast water management requirements, and the horizon has gotten a bit clearer. There are now 16 ballast water management systems (“BWMS”) with USCG type-approval and 10 more in the pipeline. As such, many companies have kicked their compliance efforts into high gear, yet ballast water management still remains challenging, largely because the United States is not party to the International Maritime Organization’s (“IMO”) Ballast Water Management Convention and regulates ballast water unilaterally under the National Invasive Species Act and the Clean Water Act. And, a new regime is on the horizon, the Vessel Incidental Discharge Act of 2018, which is discussed further on page 21 of Mainbrace.

Some shipowners have struggled to manage compliance in an efficient and effective way with both IMO and U.S. requirements because the compliance dates and type-approval regimes differ, which sometimes has resulted in the need for compliance date extensions. The USCG’s extension policy has evolved as more type-approved systems become available, and the USCG just recently came out with a new policy via Maritime Commons. This new policy addresses and clarifies what the “next scheduled drydock” means, which triggers the compliance date.

The USCG’s new interpretation sets forth a more practical approach for owners to plan for compliance. In short, it ties the anticipated compliance date to the vessel’s statutory out-of-water survey date under SOLAS rather than triggering a new date as a result of drydock slips, installation of scrubbers, or emergency drydocks, which shortened the time to comply. This new policy is a welcome change that will lead to more certainty as it maintains the vessel’s anticipated compliance date. Also, for those owners who have endeavored to comply, but ran into some challenges getting equipment on time or experienced installation hiccups or emergency drydocks, extensions are still available, but on a much more limited basis than in the past. What is imperative is a good faith, detailed plan to come into compliance, generally within a year.

Finally, to avoid problems in the United States regarding operational issues, it is important to have a contingency plan in place, which is incorporated into each vessel’s ballast water management plan. Initially, an inoperable BWMS should be reported to the USCG Captain of the Port (“COTP”) well in advance of arriving, to allow time to work through the compliance options. In making a decision, the COTP will examine how well you have prepared for operations and what steps you have taken to develop a contingency plan, such as training, maintenance, spares, and efforts to repair. Answers to these questions, as well as the vessel/company’s compliance history, will guide the COTP’s decision in terms of what he/she may allow if a BWMS is inoperable.

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. Continue reading “Surviving the VIDA Loca”