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Gard News 194, May/July 2009

US Vessel General Permit – The case of the reluctant regulator

 

The US Environmental Protection Agency (finally) implements the Vessel General Permit for discharges incidental to the normal operation of vessels.

 

Introduction
Anyone who doubts that the doctrine of “separation of powers” is alive and well in the United States has only to take note of the five-year showdown between the US Environmental Protection Agency (EPA) and the California federal courts over discharges incidental to the normal operation of vessels.

Since December 2003, the EPA has been embroiled in litigation initiated by environmentalists whose objective was to require EPA to regulate these discharges by permit. The California federal district and appeals courts ruled that the EPA had exceeded its authority when it excluded such discharges from the National Pollutant Discharge Elimination System (NPDES) permitting system. This meant that the EPA had to devise, issue and implement a permit system for a wide variety of vessel discharges which would affect, according to current EPA estimates, approximately 61,000 US-flagged vessels and 8,000 foreign-flagged vessels. Clearly, individual permits were not feasible. Instead, the EPA developed a Vessel General Permit (VGP) that would apply to all affected vessels whose owners filed a Notice of Intent. Unable to meet the first court-imposed deadline of 30th September 2008, the EPA sought and was granted a reprieve which extended the deadline until 19th December 2008. In any event, the implementation date for the VGP was again extended until 6th February 2009.1

Legislative history
We begin with Section 301(a) of the Clean Water Act (CWA), passed by the US Congress  in 1972, which prohibits the discharge of any “pollutant” unless authorised by an NPDES permit. The CWA’s definition of “pollutant” specifically excludes sewage from vessels and discharges incidental to the normal operation of a vessel of the Armed Forces. Shortly after the enactment of the CWA, the EPA issued a regulation that exempted from NPDES permitting “any discharge of sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes, or any other discharge incidental to the normal operation of a vessel”. It was this exclusion that the courts in California struck down as being beyond the authority of the EPA, notwithstanding that Congress had considered and apparently accepted the regulation for some 30 years.

In the fact sheet that it issued as a guide to the VGP, the EPA emphasises that it fought efforts to require incidental discharges to be permitted not because it dismissed the significance of aquatic invasive species, or other environmental hazards resulting from these discharges, but rather because, in its view, permitting was not the best or most efficient way of addressing the problem. The EPA notes that Congress has already enacted legislation that directed the US Coast Guard, rather than the EPA, to address and come up with a regulatory programme for the discharge of ballast water and other discharges, and that nothing in the CWA prevented individual states from coming up with regulations to control ballast water discharges under state law.

Not surprisingly, many of the requirements for ballast water discharges under the VGP are taken straight from the US Coast Guard requirements for management of ballast water.2

 

Who, what, when, where, how: VGP basics


Vessels Subject to the VGP

All vessels operating as a means of transportation (except recreational and vessels of the US Armed Forces). As noted earlier, the EPA estimates that there will be approximately 61,000 US-flagged vessels and 8,000 foreign-flagged vessels that will need coverage under the VGP. For commercial fishing and non-recreational vessels less than 79 feet long, permit coverage is limited to ballast water discharges. VGP refers throughout to “Owners” and “Operators” but it is not clear whether “Operators” might include entities other than “Owners” (e.g., charterers and vessel managers).3

 

 

 

Discharges regulated
Discharges incidental to the normal operation of the vessel.4 The EPA has indicated that it will concentrate on: deck washdown/runoff, bilge water, ballast water, anti-foulant hull coatings, oil to sea interfaces and gray-water. Any discharge which results from a failure to properly maintain the vessel and its equipment, even if the type of discharge otherwise covered, is not eligible for this permit coverage.  It should also be noted that other types of discharge which might be thought to be incidental to the normal operation of a vessel, such as garbage, rubbish and trash, are not covered under the VGP.5 Sewage from vessels is not a “pollutant” within the meaning of the CWA and is therefore not regulated by the VGP, but under Section 312 of the CWA.  For commercial vessels operating on the Great Lakes, gray-water is included in the definition of sewage. Therefore, gray-water discharges from vessels operating on the Great Lakes are also not covered by the VGP. Depending on how the vessel is designed, gray-water and sewage may be combined into one effluent stream. If so, then the vessels (with exception of those on the Great Lakes) must meet the discharge requirements of this permit as well as any applicable to sewage.

 

 


VGP Waters

US territorial sea (up to three nautical miles from shore) and certain inland waters (but note that certain provisions of the regulations refer  to activities that occur or are covered beyond the three nautical miles limit).


Important dates and deadlines

Vessels are automatically covered under the VGP as of its effective date (6th February 2009). Coverage will not extend beyond 19th September 2009 unless the owner/operator (of a vessel of 300 GT or more or which has the capacity to hold or discharge more than 8 cubic metres, or 2,113 gallons, of ballast water) submits a Notice of Intent (NOI) to receive permit coverage between19th June 2009 and 19th September 2009. (Smaller vessels are not required to submit an NOI, but these vessels still must comply with the conditions of the VGP.) Coverage will be effective on the date the NOI is received since the EPA will not be able to review the tens of thousands of NOIs individually. The first date that NOIs will be processed will be 19th June 2009. If the NOI is not submitted by 19th September 2009, then vessel will have to wait for 30 days to be covered.



Notice of Intent

An NOI must be submitted for each vessel (at this time, it is not possible to submit a single fleet-wide NOI).6 When ownership or operation of a vessel already covered under the VGP is transferred, a new NOI must be submitted to the EPA by the transfer date to avoid a “gap” in coverage (since the permit becomes effective on the date the transfer takes place or the date the EPA receives the NOI, whichever takes place later). For new vessels that are delivered after 19th September 2009, the NOI must be submitted 30 days before the vessel discharges into waters subject to the permit. Again, this is to avoid a gap in coverage. Any person signing the NOI (and any reports required by the VGP, including monitoring data) must submit a certification that includes a statement not previously required in EPA-issued NPDES general permits: “I have no personal knowledge that the information submitted is other than true, accurate and complete”.

The final VGP also reflects the somewhat untidy mix of state and federal co-authority under the CWA and requires compliance with state water quality standards that apply in the territorial seas.7

Standards for limitations on discharges
The EPA concluded that it was not feasible to use numeric limitations for most discharges regulated by the VGP and decided instead to employ non-numeric standards. These standards are  referred to as “best management practices”, or BMPs, which may or may not require use of technology-based standards known as BPTs (best practicable control technology currently available), BCTs (best conventional pollutant control technology) and BATs (best available technology).

The use of these standards reflects an appreciation by the EPA that regulations designed to minimise environmental harm from vessel discharges should be practical and achievable, drawing on existing technology and sound ship practices. For example, in requiring vessels to use coamings or drip pans underneath machinery as a way to keep oil from entering the bilge and being discharged to surrounding waters or creating hazardous conditions on the deck of the vessel, the EPA states that the majority of vessels already follow this practice. Therefore, this requirement is imposed as a BPT as well as a BMP. In requiring that vessels comply with additional ballast water management requirements, including mandatory saltwater flushing of empty ballast water tanks, the EPA states that many US-bound vessels already perform saltwater flushing (BMP and BPT) and that saltwater flushing also represents the  BAT (because reliable technology for removing residual organisms is not yet available).

The EPA also recognises that some technologies that can be used to reduce the environmental impact of incidental discharges, including ballast water treatment technologies, are still very much a work in progress: they are not yet sufficiently developed and/or have not been shown to be a better alternative to currently available techniques such as ballast water exchange or saltwater flushing of ballast tanks.8  However, the VGP contains a “re-opener” clause that allows the EPA to modify the permit if it determines that certain technologies have reached the stage where they can be designated as BATs.

General effluent limits
These are designed to apply to all vessels subject to the VGP for all covered discharge types:
(i) Storage of materials – vessels must minimise release of contaminants via cargo or on-board materials by containerising or tarping materials; limiting their exposure to wind, rain or spray; and preventing water that is draining from storage areas from coming into contact with any oil materials.
(ii) Toxic and hazardous materials – vessels must store, label and secure toxic and hazardous materials in suitable, sealed containers.
(iii) Fuel spills/overflows – vessels must implement precautions to prevent spills and, if a spill occurs, to contain any fuel released (e.g., by use of booms). There are special provisions in the VGP that apply to tankers.9 Scuppers must be blocked during cargo operations to prevent oil from contaminating discharges authorised by the VGP. A visual sheen test must be conducted after cargo loading, cargo unloading and deck washing.
(iv) Compliance with all statutes and regulations applicable to vessel discharges.10

The table below shows effluent limits for specific discharge categories.

 

Effluent limits for selected11 specific discharge categories

Deck washdown and runoff
BMPs include: (a) containing potential contaminants to keep them from entering the waste stream; (b) properly maintaining deck and bulkhead areas to prevent excess corrosion, leaks and metal discharges; (c) using environmentally-safe products for cleaning deck areas. Deck runoff does not have to be collected and tested before discharge except during/after fuelling operations, when spills occur or when required by the vessel’s classification society.

 

Bilge water
Vessels large enough to require discharge of bilge water should be using oily-water separators. Smaller vessels must perform a visual sheen test prior to and at time of discharge of bilge water. If bilge water is untreated with an oily-water separator or it is not clear that a sheen test will be met, the bilge water must be kept on board for on-shore disposal.   Additional BMP: vessels that are more than 400 GT and regularly (at least once a month) leave waters subject to the VGP must not discharge treated bilge water within one nautical mile of shore (if technologically feasible).

Ballast water
Existing Coast Guard requirements:
Included in the VGP are most of the existing US Coast Guard regulations for management of ballast water.12  These require vessels coming into US waters with ballast water taken on within 200 nautical miles of any shore to do one of the following:  (1) conduct mid-ocean ballast water exchange prior to entering US waters; (2) retain ballast water on board while in US waters or (3) use a Coast Guard-approved alternative  method (currently none). However, the master of vessel is not prohibited from discharging unmanaged ballast (in areas other than Great Lakes and Hudson River) if the master determines that following these ballast management procedures would be unsafe for the vessel. Furthermore, there is no requirement to deviate from or delay the voyage to conduct the ballast water exchange.


The Coast Guard also requires that ships avoid or minimise ballast water uptake in areas with high potential to contain harmful organisms, that vessels only discharge the minimal amount necessary in coastal and internal waters, and that they regularly clean ballast water tanks to remove sediment. The VGP also incorporates the Coast Guard’s mandatory ballast water reporting and record-keeping requirements as well as the requirement that each vessel have a vessel-specific ballast water management plan which requires the master (or another appropriate individual) to carry out the ballast water management plan.

Saltwater flushing of empty ballast tanks is required for vessels entering the Great Lakes.

Additional practices required by the VGP:
(1) Mandatory ballast water exchanges for vessels engaged in Pacific “near-shore” voyages13 if they travel more than 50 miles from shore and will discharge ballast into waters subject to the VGP; (2) Mandatory saltwater flushing for all vessels with unpumpable ballast water and residual sediment that travel more than 200 nautical miles from shore (50 nautical miles from shore for vessels engaged in Pacific near-shore voyages) and will discharge ballast to waters subject to the VGP.

 


Anti-fouling hull coatings
– Zero discharge standard for tributyltin (TBT) or any other organotin anti-fouling compound historically applied to vessel hulls.  Vessels with existing TBT coatings must either seek an individual permit or overcoat existing coating.

– BMPs:  (1) apply coatings according to instructions on the coating’s FIFRA label;  (2) minimise use of coatings that are more toxic than may be needed having regard to the vessel’s profile (e.g., operating speed, dry-docking requirements, waters that it will travel in); (3) “match” the coating’s strength to the vessel’s dry-dock cycles.


Oil to sea interfaces14

– vessels must apply lubricants and maintain all seals so that discharges do not result in a visible sheen;
– wire ropes or cables must be wiped down to remove excess lubricant after periodic lubrications;
– lubricants should be “environmentally preferable”, e.g., utilising vegetable oil, synthetic ester, or polyaklylene glycol as bases.

 


Gray-water

– BMPs: (1) minimise production and discharge of gray-water in port; (2) large vessels that regularly leave waters subject to the permit and have capacity to store gray-water should discharge when the vessel is under way and more than one nautical mile from shore; (3) soaps and detergents that will be discharged as gray-water should be non-toxic and phosphate-free and, where possible, biodegradable; (4) no general requirement to treat gray-water, but vessels which have sufficient gray-water storage capacity and do not currently treat their gray-water to the standards listed in the permit, must utilise on-shore treatment when available and economically practicable.
– Special gray-water treatment requirements for cruise ships15 (the technology required to meet these limits is already in use and required for large cruise ships operating in Alaskan waters which discharge within territorial seas).

 

 

Inspections
The VGP requires that vessels engage in documented periodic self-inspections to ensure compliance with the permit. These inspections are broken down as follows:
(i) Routine inspections: must be conducted at least once each week or once per voyage, whichever is more frequent. The VGP allows routine visual inspections to be done as part of an ISM safety management system. The routine inspection must include bilge water even if the vessel has an oily water separator. Quarterly visual sampling is required for effluent streams that can not be seen (e.g., discharges below waterline). Visual inspections must be noted in the official log or other record-keeping document.
(ii) Annual inspections: required for areas more difficult to inspect (e.g., the hull). Does not require vessel to be placed in dry-dock. Owners may use portions from annual inspections conducted by the Coast Guard or classification society to meet some annual inspections requirements. Must be recorded in the official log or other record-keeping document.
(iii) Dry-docking inspections: reports must confirm that the chain locker, hull and cathodic protection have been inspected and cleaned; that anti-fouling hull coating has been maintained and applied as per permit’s requirements; and that pollution control equipment has been maintained and is functioning.

Record-keeping
Owners need only keep one brief record of each inspection. The record must include when and how the inspection was performed and any relevant information discovered. No specific forms must be used or filed and only one copy of the inspection record must be made. Inspection records must be kept on the vessel. In addition, owners must preserve maintenance records of specific equipment that causes discharges permitted under the permit. The VGP maintains existing Coast Guard record-keeping requirements for vessels with ballast tanks (i.e., information relating to ballast water capacity, uptakes, exchanges and discharges). In addition, records must now be maintained for expanded ballast water exchange and saltwater flushing as required under the VGP.

Reporting
(i) Any non-compliance with the permit must be reported at least once each year to the regional office(s) (listed in Part 13 of the Permit) for the waters where the non-compliance occurred. If there are multiple occurrences, the report must go to the regional office where the greatest number of occurrences took place or where the vessel spent the most time (if the same number of occurrences took place in more than one area).
(ii) Cruise operators have additional reporting requirements regarding gray-water treatment systems.  Vessels with ballast water treatment systems that use biocides must report on the monitoring of those systems.
(iii) Annual report: a one-time report after the 30th month of permit coverage can be made in lieu of an annual report. The report must include the names and addresses of the owners and or operators of the vessel, the name of the vessel, the flag and size of the vessel, and whether or not the monitoring (inspections) conditions of the permit have been met.

Corrective measures
Violations of the VGP, whether discovered through self-inspection or otherwise, must be noted as part of the vessel’s records or reported to the EPA. If a problem is  uncovered, the record must identify why it has occurred and steps that will be taken to ensure that the problem is corrected and will not recur.  The VGP provides time frames within which the problem must be corrected, depending on the type of violation involved (see below). It is important to note that the time granted to correct non-compliance with the VGP is not a “grace period”: failure to take corrective action within the designated time will itself be considered a separate violation of the VGP.
(i) Minor adjustment – e.g., practices for storing material or equipment that can cause contamination during rain or high wave event. Correction time: as soon as possible but no more than two weeks after discovery of problem. However, if the vessel will leave waters subject to the VGP within two weeks of discovery, then corrective action can be taken at any time prior to re-entering those waters (i.e., even if more than two weeks).
(ii) Major adjustment – e.g., drips or spills from leaky infrastructure or operations that can be corrected or repaired without vessel being dry-docked; fixing leaking pipe connections or seals that result in oil or other contaminants reaching discharges.  Corrective action must be taken within three months of discovery or (if vessel will leave waters within the three months) prior to re-entering US waters, whichever is later.
(iii) Major renovation – something that can only be done in dry-dock – e.g., re-plumbing waste lines, re-routing drains, over-coating or removing TBT on vessels that used this type of anti-fouling coating. Must be done during next available or scheduled opportunity for dry-docking.

Conclusion
The implementation of the VGP should not cause major dislocation or inconvenience for shipowners involved in US trade. The EPA has provided a great deal of accessible information to allow vessels to be timely registered for permit coverage and to ensure that owners are aware of what is required to comply with the VGP. Moreover, with some exceptions, the VGP is a fairly restrained document, adopting many measures that are already required or used by vessels employing “best management practices”. The main difficulty with the VGP is that it does not provide a “one-stop” system: owners must still be aware of and stay in compliance with varying state requirements and limitations on these types of discharges, and there is nothing to prevent the states from continuing to regulate this area on their own.

Footnotes
1 The final VGP can be accessed at www.epa.gov/npdes/pubs/vessel_vgp_permit.pdf. The EPA has also prepared a lengthy fact sheet which can be accessed at www.epa.gov/npdes/pubs/
vessel_vgp_factsheet.pdf
. On 5th February 2009, the EPA offered a webcast which attracted about 1200 on-line participants during which it presented a PowerPoint presentation which can be accessed at www.epa.gov/npdes/webcasts/presentations/ vessels_webcast_download.pdf.  A useful summary of the main features of the VGP can be found in Gard P&I Member Circular No. 10/2008, which may be accessed at www.gard.no.
2 Interestingly, environmental groups have taken the position that the EPA regulations for ballast water do not go far enough to prevent invasive species pollution and have filed suit in California. Another environmental group, the Natural Resources Defense Council, will be filing a similar suit in federal court in New York.  This new round of what has been extensive litigation in the U.S. courts on this subject, will likely last for several more years to come. (Sources: The Superior Telegram, 16th January 2009; The Associated Press, 13th January 2009).
3 Part 7, Appendix A of the VGP defines “operator” as “a party, including a charterer by demise, who: has operational control over vessel activities, including the ability to modify those activities; or has day-to-day operational control of those activities that are necessary to ensure compliance with the permit or to direct workers to carry out activities required to comply with the permit.”
4 A complete list of the discharges may be found in the Annex to Gard Circular No. 10/2008.
5 Garbage includes bulk dry cargo residues and agricultural cargo residues. Garbage discharges are regulated by the Act to Prevent Pollution from Ships (APPS).
6 The EPA is working on establishing a website link and forms so that NOIs can be submitted electronically.  The EPA has stated that it intends to develop automated templates that will shorten the time needed to register each individual vessel. A sample Notice of Intent can be seen at Appendix E of the VGP.
7 These requirements are set out in Part 6 of the Permit. Most rigorous are California, New York and the states bordering the Great Lakes.
8 In fact, while some of the ballast water treatment technologies may kill organisms in the ballast water, the biocides utilised to do so are themselves sufficiently toxic that they can cause considerable environmental damage if they are discharged. As a result, the VGP imposes special restrictions on any vessel employing a ballast treatment system that utilises biocides.
9 Part 5.5 of the VGP.
10 These include: the Act to Prevent Pollution from Ships (APPS) (regulates discharge of oil and oily mixtures, noxious liquid substances and garbage, including food waste and plastic); the Hazardous Materials Transportation Authorization Act of 1994 (regulates labelling, packaging, and stowage requirements for hazardous materials); the Oil Pollution Control Act of 1990 (OPA 90), the Clean Water Act, S. 311 (the Oil and Hazardous Substances Liability Act) (prohibits discharge of oil or hazardous substances into U.S. waters), the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), and the National Marine Sanctuaries Act.
11 This article discusses those discharge categories identified by the EPA as ones that they will concentrate on. A complete description of effluent limits for all discharges covered by the VGP can be found in the Permit itself as well as the EPA Fact Sheet.
12 33 CFR Part 151, Subparts C and D.
13 Pacific near-shore voyages include vessels engaged in Pacific coastwise trade that cross more than one Captain of the Port Zone and will discharge ballast waters into VGP waters; and vessels that sail from foreign, Atlantic or Gulf of Mexico ports, do not sail further than 200 nm from shore and discharge ballast water into the territorial sea or inland waters of Alaska or of the US west (continental) coast.
14 Controllable pitch propeller and thruster hydraulic fluid; lubrication discharges from paddle wheel propulsion, stern tubes, thruster bearings, stabilisers, rudder bearings, azimuth thrusters and propulsion pod lubrication; and wire rope and mechanical equipment subject to immersion.
15 VGP, Part 5.

 

 

 

Gard News 194, May/July 2009

Any comments to this article can be e-mailed to the Gard News Editor.

Gard News is published quarterly by Gard AS, Arendal, Norway.