Jeanne M. Grasso and Dana S. Merkel ●
The U.S. Environmental Protection Agency (“EPA”) published a Supplemental Notice of Proposed Rulemaking (“SNPR”) on October 18, 2023, modifying its initial proposed rule from three years ago on performance standards for vessel incidental discharges. 2023-22879.pdf (govinfo.gov) The SNPR addressed only three limited areas—ballast water, hulls and associated niche areas, and graywater—and did not make any sweeping changes to the October 26, 2020, proposal. 2020-22385.pdf (govinfo.gov) This action lays the groundwork for the finalization of EPA’s final standards for the incidental discharges from vessels—finally.
Background
In December 2018, the Vessel Incidental Discharge Act (“VIDA”) was signed into law. VIDA amended the Clean Water Act (“CWA”) and was intended to replace the EPA’s 2013 Vessel General Permit (“VGP”), which has now been in place for more than 10 years. The goal was to bring uniformity, consistency, and certainty to the regulation of incidental discharges from U.S. and foreign-flag vessels. VIDA required EPA to finalize uniform performance standards for each type of incidental discharge by December 2020 (a deadline missed by more than three years), and requires the United States Coast Guard (“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. EPA’s delay in finalizing its performance standards prompted the Center for Biological Diversity and Friends of the Earth to file a lawsuit in February 2023 to force EPA to finalize its performance standards. Center for Biological Diversity, et al., v. Regan, et al., No. 3:23-cv-535 (N.D. Cal. 2023). The premise of the environmental groups’ complaint was that EPA’s inaction harmed aquatic ecosystems, with the principal allegations focused on ballast water discharges. The parties thereafter negotiated a Consent Decree that requires EPA to finalize its performance standards by September 23, 2024.
Continue reading “EPA Issues Supplemental Notice of Proposed Ruling to Implement the Vessel Incidental Discharge Act—Finally!”