EPA Publishes Proposed Rule Establishing National Standards for Vessel Discharges

On October 26, 2020, EPA published its proposed rule under the Vessel Incidental Discharge Act (“VIDA”) which would establish national standards of performance for discharges incidental to the normal operation of vessels.

Background

EPA regulates vessel discharges pursuant to a Vessel General Permit (“VGP”) that was first issued in 2008 and reissued in 2013.  Vessel owners, however, must comply with different discharge standards under federal, state, and local laws, including the VGP.  In response to industry concerns regarding the lack of uniformity of this regulatory regime, Congress enacted VIDA, which was signed into law on December 4, 2018.  Through VIDA, Congress restructured how vessels discharges would be regulated in the U.S. with the intent of streamlining the patchwork of federal, state, and local discharge requirements.  Under VIDA, the VGP standards remain in effect until EPA and the U.S. Coast Guard (“USCG”) finalize implementing regulations.  EPA’s proposed rule is the first step in this process.

Scope of Regulation

The proposed discharge standards are applicable to nonrecreational and nonmilitary vessels 79 feet in length and above in waters of the U.S. or the Contiguous Zone (24 nautical miles (“nm”) from shore).  The proposed rule applies to all types of vessels, including passenger vessels, ferries, barges, tugs and tows, offshore supply vessels, and mobile offshore drilling units.  The standards do not apply to small vessels less than 79 feet, vessels that are permanently moored such as a floating casino, or fishing and recreational vessels, except that the proposed rule would apply to ballast water discharges from small vessels and fishing vessels.

The general discharge standards are organized into three categories: 1- general operation and maintenance; 2- biofouling management; and 3- oil management.  The proposed regulations establish specific discharge standards for 20 separate vessel discharges.  For 13 of these discharges, the proposed standard remains substantially the same as the VGP.  Standards for bilges and desalination and purification systems are slightly modified, while standards for ballast tanks, exhaust gas emissions control systems, graywater, hulls, and seawater piping have the most meaningful changes from the current VGP standards.

Some of the key changes include:

• The General Operation and Maintenance standard incorporates the VGP’s standalone biofouling standard, which regulates hull coatings and biofouling organisms. It requires vessel owners to develop a biofouling management plan, something not currently required by the VGP.  Fleet owners can develop a plan template that can be adapted into vessel-specific plans when owners have vessels with similar operational profiles, such as crossing the same waterbodies, travel similar speeds, and share same design.
• Proposed graywater discharge standards are more stringent than the VGP, although the numeric limitations remain the same.

-Graywater is defined as galley, bath, and shower water, as well as wastewater from lavatory sinks, laundry, and water fountains. These discharges are prohibited within 3 nm for vessels that travel at least 3 nm from shore and have the storage capacity to hold graywater unless the discharge meets the numeric discharge standards.

-Discharges of graywater are prohibited within 1 nm for vessels that voyage at least 1 nm, but not more than 3 nm, from shore and have the storage capacity to hold graywater, unless the discharge meets the numeric discharge standards.

-All new vessels of 400 gross tons and above, and any new ferry that will carry 250 or more people, must meet numeric discharge standards.

• Ballast water standards, including limits on biological organisms, biocide parameters, and ballast water exchanges, are carried forward from the VGP. The proposed ballast water standards also carry forward regulatory exemptions for certain vessels depending on where or how they operate.  The proposed rule does not carry forward current VGP ballast water limitations for uptake in certain areas, such as known populations of harmful organisms, near sewage outfalls, and in darkness.  EPA found that vessel operators are not well positioned to implement these restrictions.  Instead, EPA proposes that states petition EPA for emergency discharge restrictions when unique conditions are present.
• The proposed rule carries forward the same standards for bilges as in the VGP except that the proposed rule expands the requirement to treat bilgewater prior to discharge while underway to all vessels of 400 gross tons and above, not just those vessels that regularly sail outside territorial sea. The proposed rule does allow bilgewater discharge any distance from shore, however, whereas the VGP prohibits discharges within 1 nm of shore.
• Cathodic protection is incorporated into the General Operation and Maintenance category. The proposed rule does not carry forward the VGP’s current requirement regarding selection of sacrificial anodes based on toxicity because EPA found that the appropriate type of metal may depend on local conditions.
• The proposed rule prohibited discharges from firefighting equipment during testing, training, maintenance, and certification, along with any discharges of fluorinated firefighting foam, except in emergencies or where required by the USCG.
• Proposed standards for Exhaust Gas Emissions Control Systems (EGCS) and Exhaust Gas Recirculation (EGR) are based on the International Maritime Organization’s (“IMO”) guidelines for discharges from these two types of emissions systems, and the standards are intended to harmonize U.S. standards with the IMO. This includes changes to the current pH standard from 6 to 6.5, and changes to the testing regime that would allow for in-water measurements or calculation-based methodology.
• Fish hold effluent and small boat engine wet exhaust would no longer be regulated as discharges incidental to the operation of the vessel.
• EPA proposes to impose heightened procedural requirements for states seeking to implement no discharge zones.

Way Ahead

EPA will consider public comments it received through November 25, 2020 as it develops the final rule.   Once EPA establishes the discharge standards, the USCG will be responsible for issuing implementation, compliance, inspection, and enforcement regulations within two years.  Once established, EPA’s standards and USCG’s implementing regulations will effectively supersede most all existing vessel discharge regulations, thus ushering in a uniform national set of standards that will apply for the foreseeable future.

In the interim, the VGP standards continue to apply, including the requirement that vessel owners submit notices of intent to EPA seeking coverage under the VGP and annual reports.  A cursory glance at EPA’s VGP database evidences that a number of vessel owners which operate in this region are not current in their VGP registrations or annual reports.  This not only represents a regulatory violation, but also deprives EPA of critical data needed to implement well-informed regulations.

Vessel operators and businesses with questions regarding the proposed rule, the VGP, or other vessel compliance matters may contact Joe Romero at jromero@vanblacklaw.com.