Tag: U.S. Coast Guard

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.

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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.

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EPA Issues Supplemental Notice of Proposed Ruling to Implement the Vessel Incidental Discharge Act—Finally!

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.

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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.

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New Developments in MARPOL Annex VI Compliance and Implementation

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

 

The International Maritime Organization (“IMO”), in preparing for the global 0.5 percent fuel oil sulfur limit, recently adopted an amendment to MARPOL Annex VI to support consistent implementation and enforcement of the new requirement. At the same time, the IMO rejected a proposal for an “experience building phase” during the first months of implementation. This put to rest any rumors of a delay in implementation. Meanwhile, the U.S. Coast Guard published procedures by which owners may seek authorization to operate engines that do not meet MARPOL Annex VI NOx Tier III requirements for qualified vessels.

New Developments

The IMO adopted an amendment to support consistent implementation of the forthcoming 0.5 percent limit on sulfur in ships fuel oil on October 26, 2018, during the recent session of its Marine Environment Protection Committee (“MEPC 73”). This amendment, effective on March 1, 2020, prohibits the carriage of non-compliant fuel oil for use on the vessel unless the vessel is outfitted with an exhaust gas cleaning system, often referred to as a scrubber. The amendment does not alter the January 1, 2020 implementation date for the 0.5 percent sulfur limit.

Also related to MARPOL Annex VI, the U.S. Coast Guard published an enforcement Work Instruction formally addressing how the U.S. Coast Guard will enforce the Annex VI nitrogen oxides (“NOx”) Tier III standards within the North American and U.S. Caribbean Sea Emission Control Areas (“ECAs”). See Exercise of Enforcement Discretion with Regard to MARPOL Annex VI Regulation 13.5.1.2; CVC-WI-014(1) (October 17, 2018). Because engines meeting the NOx Tier III standards were largely unavailable after the Tier III standards took effect in 2016, the U.S. Coast Guard is allowing impacted vessels to instead be certified as meeting U.S. Environmental Protection Agency (“EPA”) Clean Air Act Tier 3 requirements pursuant to 40 C.F.R. Part 1042. Once individually recognized by the U.S. Coast Guard, such engines may be used indefinitely, even after NOx Tier III compliant engines become available.

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U.S. Coast Guard Publishes Final Rule That Increases the Marine Casualty Reporting Thresholds

Jeanne M. Grasso, Jonathan K. Waldron, and Sean T. Pribyl

 

 

 

On March 19, 2018, the U.S. Coast Guard published its long-awaited final rule on Marine Casualty Reporting Property Damage Thresholds. In what was widely viewed as a common-sense and non-controversial adjustment, the final rule amends the monetary property damage threshold amounts for reporting a marine casualty and serious marine incidents (“SMI”). These amended thresholds ease the reporting burdens for industry stakeholders and also reduce the administrative burden on the U.S. Coast Guard associated with investigating these incidents.

Marine Casualty Reporting Requirements

Generally, when a marine casualty or accident occurs on navigable waters (within 12 nautical miles), or involving a U.S.-flag vessel wherever it is operating, the owner, operator, master, or person in charge of the vessel involved may have an obligation to immediately report it to the U.S. Coast Guard. Not all marine casualties are reportable, as such reporting is dependent on the type of incident, e.g., grounding, allision, loss of propulsion, injury requiring professional medical treatment, or property damage, and whether the damage meets property damage thresholds. U.S. Coast Guard regulations consider a marine casualty to be reportable when it meets distinct criteria, and has therefore developed regulations that define reporting thresholds and the manner of reporting a marine casualty or an SMI, which also requires drug and alcohol testing. See 46 CFR Subpart 4. Continue reading “U.S. Coast Guard Publishes Final Rule That Increases the Marine Casualty Reporting Thresholds”