Come About! USEPA Changes Course on Commercial Vessel Permitting Requirements
This post was written by Mark Mustian, Jennifer Smokelin and Lou Naugle.
On Dec. 18, 2008, EPA issued a Vessel General Permit (“VGP”) to regulate discharges incidental to the normal operation of vessels operating in a capacity as a means of transportation. See epa.gov. This reverses the long-standing regulatory policy of EPA to specifically exclude discharges incidental to the normal operation of vessels from permitting requirements under the National Pollutant Discharge Elimination System (“NPDES”). See 38 FR 13528, May 22, 1973.
EPA’s about-face was the result of a petition and legal action by a group of parties concerned about the effects of ballast water discharges. The court found that EPA’s exclusion of incidental discharges from vessels exceeded its authority under the Clean Water Act. See, Northwest Environmental Advocates v. U.S. E.P.A, 2005 WL 756614, 61 ERC 1245, 35 Envtl. L. Rep. 20,075 (N.D. Cal. Mar 30, 2005). The ruling in Northwest Environmental vacated the blanket exemption for vessels effective Dec. 19, 2008. After that date, all discharges incidental to the normal operation of vessels operating in a capacity as a means of transportation are prohibited unless authorized under a NPDES permit.
All owners and operators of non-recreational vessels that are 79 feet and greater in length, commercial vessels less than 79 feet, and commercial fishing vessels of any length that discharge ballast water, are required to obtain and comply with the new VGP. The VGP covers 26 separate sources that will be regulated. Compliance with the VGP for a majority of the sources will require implementation of an inspection program and compliance with Best Management Practices (“BMP”). The permit also imposes additional inspection and monitoring programs for certain classes of vessels, numeric discharge limits for graywater from cruise ships, and oily discharges, and imposes whole effluent toxicity (“WET”) testing requirements on ballast water treatment systems that use biocides.
