Vessel Incidental Discharge Act Archives

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.

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.

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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