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EPA Begins Regulation of Maritime Discharges

March 17, 2009

After years of legal wrangling, the U.S. Environmental Protection Agency (“EPA”) has placed into effect new regulations designed to curb the discharge of ballast and other waste waters into the waters of the United States. Affected are both domestic and foreign-flagged vessels, including cruise ships, subject to certain exemptions and moratoria mostly applicable to small, recreational craft and fishing vessels.

Specifically, ship operators will have to comply with the EPA’s Vessel General Permit (“VGP”) in order to discharge into waters of the United States. These permits are issued under the Clean Water Act (33 U.S.C. 1251 et seq.) (“CWA”), and constitute an authorization to discharge under the National Pollutant Discharge Elimination System, a program that has regulated land-based discharges for many years. Historically, the EPA had exempted ballast water discharges, and other discharges incidental to the normal operation of vessels (“incidental discharges”) from these requirements, but a 2008 decision by the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court’s decision that the EPA had exceeded its statutory authority in exempting these discharges from permit requirements.

Applicability and Limitations

The VGP applies to an estimated 70,000 vessels of 300 gross tons or more, or that have the ability to hold or discharge more than 2,113 gallons of ballast water.

The VGP will be used to regulate discharges incidental to the normal operation of vessels operating in a capacity as a means of transportation. The VGP includes general effluent limits applicable to all discharges; general effluent limits applicable to 26 specific discharge streams; narrative water-quality-based effluent limits; inspection, monitoring, recordkeeping, and reporting requirements; and additional secondary-treatment and technology-based requirements applicable to certain vessel types. Individual states may require additional regulations which would apply when a vessel enters the state’s territorial waters.

Geographical Application

The VGP addresses discharges in “waters of the United States,” generally defined as extending to the outer reach of the 3-mile territorial sea, and includes all navigable waters of the Great Lakes subject to the jurisdiction of the United States. Specific geographical standards also apply. For example, vessels engaged in Pacific nearshore voyages that carry ballast water that was taken on in areas less than 50 nautical miles from any shore must carry out an exchange of ballast water in waters more than 50 nautical miles from any shore (U.S. or otherwise), and in waters more than 200 meters deep, prior to discharging ballast water into waters subject to the VGP.

Discharges Regulated

The VGP is primarily directed at ballast water, in an effort to reduce species trans-migration. The 26 different discharge streams regulated also include deck runoff and above-water-line hull cleaning, bilgewater/oily water separator effluent, anti-fouling leachate from anti-fouling hull coatings/hull coating leachate, boiler/economizer blowdown, chain-locker effluent, graywater (graywater from commercial vessels operating in the Great Lakes within the meaning of CWA section 312 is excluded from the requirement to obtain an NPDES permit), seawater cooling overboard discharge, and graywater mixed with sewage from vessels.

Certain other discharges are not covered by the VGP, including sewage, used or spent oil, garbage or trash, photo-processing effluent, effluent from dry-cleaning operations, and discharges of medical waste.

All vessels are required to minimize the discharge of graywater while in port. For those vessels that cannot store graywater, the owner or operator and their crews are to minimize the production of graywater while in port.

Large cruise ships have certain additional requirements, including use of pier-side reception facilities for graywater, if reasonably available, unless the vessel has its own treatment system that meets regulatory standards, or unless the vessel can hold the graywater for discharge while the vessel is underway.

Deadlines

Vessels subject to the permit requirements must submit Notices of Intent (NOIs) beginning on June 19, 2009. Submission of NOIs is to be completed by September 19, 2009.

Other Requirements

Under the VGP, vessels will be required to adopt best management practices for each type of discharge, subject to EPA approval. Vessel owners/operators must conduct and document routine self-inspections to track compliance with the permit, and must conduct a comprehensive vessel inspection every 12 months. All vessels must keep detailed written records to document voyage information, violations of any effluent limits, deficiencies and problems identified during routine inspections, analytical results from required monitoring, training records, and specific information related to ballast water.

All instances of noncompliance with the permit requirements are to be reported to the EPA at least once per year. Vessel operators must report the noncompliance to the regional office responsible for the waters in which the noncompliance occurred. If vessels have multiple occurrences of noncompliance, they must report all noncompliance to the regional office where either: 1) the greatest number of noncompliance events occurred, or 2) if the same number of noncompliance events occurred, to the regional office responsible for waters where the vessel spent the most time. Vessel operators must also report any noncompliance which may endanger health or the environment to the appropriate EPA Regional Office within 24 hours of becoming aware of the circumstances. A one-time report is to be submitted between 30 to 36 months after obtaining permit coverage.

Implementation and Enforcement

Any noncompliance with the requirements of the VGP constitutes a violation of the CWA. Vessel owners and operators that do not comply with permit conditions may be subject to potential enforcement by the EPA. In addition, citizens may seek to hold owners and operators liable under the citizen-suit provision of § 505 of the CWA for permit violations. The Coast Guard will have collateral enforcement power pursuant to regulation codified at 40 CFR 31700.

Legal Challenges to the VGP

At least three legal challenges have been filed in various courts, in response to the EPA’s issuance of the VGP final rule. The Lakes Carriers’ Association, the Natural Resources Defense Council and the Northwest Environmental Associates (including the People for Puget Sound and the Center for Biological Diversity) have all filed challenges to the VGP, although the specific grounds for these filings will not be known until additional documents are filed with the court. Generally, challenges to final actions by the EPA do not suspend or otherwise stay the final requirements of the new regulations. Thus, vessel owners and operators should make plans to comply with the provisions of the VGP.

International Developments

On March 6, 2009, the International Maritime Organization announced the formation of the Global Industry Alliance, an effort designed to develop onboard ballast-water treatment and other technologies to prevent the introduction of invasive marine species.

The Global Industry Alliance joins leading shipping companies and international organizations in an effort to promote ballast water management and marine bio-security initiatives. So far, APL, BP Shipping, Daewoo Shipbuilding and Marine Engineering and Vela Marine International have all pledged their support for the effort.