NOTICE OF NEW EPA RULES REGARDING DISCHARGES INCIDENTAL TO NORMAL VESSEL OPERATION
Yesterday, the EPA announced new rules on incidental vessel discharge that have an impact on all vessels in US waters. The Federal Register notice of the rulemaking and the proposed permit document are posted at the end of this entry.

There is a public comment period until 1 August 2008. ASTA, the Ship Operations and Safety Committee, and individual members have been following this issue, and registering our concerns in Congressional hearings and with the EPA. ASTA is now working on a coordinated strategy for comment, and will keep you informed as to our recommendations.
In the meantime, please review the following summary, prepared by ASTA Board Member Susan Geiger. It provides extremely helpful background and concise discussion of possible ramifications and impacts.

Why Now?
EPA is under a court imposed deadline for developing a permit program for vessel discharges. Under the Clean Water Act (CWA) any discharge of a pollutant (which is broadly defined to include things such as sand, rocks and heat as well as oil and other toxic materials) from a point source (defined in the statute to include vessels) within U.S. waters requires an EPA permit.
For 35 years, discharges incidental to normal vessel operations (other than sewage and trash) have been exempted from that requirement by EPA regulations. That exemption was challenged by environmental groups. A California District Court agreed with the environmentalists that the exemption was not authorized by the CWA and the exemption is to be vacated on September 30, 2008 unless the appeals court overturns the judge’s decision. Without a permit in place at that time, vessel operators could be subject to citizen suits relating to improper discharges, if a citizen group decided to challenge particular vessel discharges.

Two Categories of Permits Are Proposed
The proposed National Pollutant Discharge Elimination System (NPDES) permits are being issued for two categories of vessel operators:
1. Commercial vessels and all others over 79 feet in length.
2. Recreational boats and any others including uninspected passenger vessels under 79 feet.
The permits cover any vessel discharging into U.S. waters (out to the 3 mile limit) no matter the flag of the vessel and no matter how many times or for what length of time the vessel is in U.S. waters. If the vessel is discharging, it is covered. What this means for foreign flag vessels, especially those that do not come to the U.S. often is still subject to clarification, but 90,000 U.S.-flag vessels and 7,000 foreign flag vessels are expected to be affected.

Initial Coverage Is Automatic
Because any discharge into U.S. waters after September 30, 2008 must be covered by a permit if the exemption for vessel discharges is vacated, initial coverage is proposed to be automatic. The initial permit would be issued by EPA and not by the States, even if a State currently administers the CWA program within its borders. State programs do not include such permits at this point (because of the exemption) so States do not have authorization to issues such permits. However, the last section of the permit is reserved for stricter state, local or tribal standards to be added to the permit and EPA will be issuing guidance for States that want to begin administering these permits.

For Larger Vessel, a Specific Application Is Required
Existing vessels and those delivered by June 30, 2009 that are over 300 GRT or that carry 8 cubic meters or more of ballast water must submit to EPA within 6 to 9 months after September 30, 2008, a Notice of Intent (NOI) for review by EPA. An NOI would normally be submitted before the issuance of a permit, but because of the circumstances of this permit issuance, it will be done as the second step for these larger vessels.
The NOI (section 10.2 of the permit) provides EPA with information on the vessel’s discharges and some operational information. Based on EPA review of this information, EPA could require a vessel to obtain an individual permit for a vessel, rather than to rely on the general permit covering all vessels in the category.
NOI information will be in a public data base along with reports required under the permit (see below).

Most Discharges Are Covered by Best Management Practices
Most of the 28 discharges covered are governed by Best Management Practices which are very general in nature: covered vessels must maintain topside surfaces to “minimize the discharge of rust…” Other sections include “should” and “recommend” language which is not mandatory.
Other requirements are based on common practice (clear debris from deck before washing) or required by other laws (oil discharges must be consistent with OPA). Still others are simply noted as permitted (such as distillation and reverse osmosis brine).
Some restrictions are based on whether a vessel leaves the territorial sea more than once a month. Treated bilge water, for example, from vessels over 400 GRT that leave the territorial sea at least once a month cannot be discharged within I NM from shore or within federally protected waters. If treated bilge water is discharged within U.S waters, the discharge must be while underway (speeds great than 6 knots).
Some restrictions are new. Crude oil tankers are currently exempt under the National Invasive Species Act from ballast water management requirements while in the coastwise trade. They will now be subject to the permit requirements for ballast water.
There is a zero discharge standard for TBT hull paints and limitations on waste streams from biocides used in ballast water management, but not many other numerical standards (at least at this point).

“Proper” Maintenance of the Vessel and Its Equipment
While not determining what constitutes “proper” maintenance of a vessel and its equipment, EPA notes that “any discharge that results from a failure to properly maintain the vessel and equipment, even if the discharge is of a type that is otherwise covered by the proposed permit, is not eligible for permit coverage.” Absent a separate permit to cover such a discharge, it would be a violation of the permit.

Inspection, Recordkeeping, and Reporting
Routine visual inspections of all areas addressed by the permit are required. These inspections must be logged, with the date, time, location, and person conducting the inspection. Recordkeeping requirements are specified (see p. 33-34) in the permit.
Quarterly sampling of discharge streams that are not readily visual is required, but the sample needs only be visually assessed, not sent for lab analysis (unless required by separate provision of the permit).
An annual comprehensive inspection is required and if the vessel is dry docked, a dry dock report is required. If Coast Guard or a class society inspects the vessel, that report can be used.
An annual self-reporting report must be filed with EPA. This report must note if there have been any violations of the permit requirements and what corrective action was taken to address any violation. If a violation affects public health or the environment, a report within 24 hours is required.
A one-time report and assessment will be required 30-36 months after issuance of the permit. EPA will use this information in the development of its requirements for renewal of the permit.

Separate Requirements for Certain Vessel Types
Additional requirements are included for certain vessel types, such as cruise ships, barges, and tankers. Tankers, for example, are permitted to discharge inert gas systems effluent, but are subject to additional crew training requirements.

Stricter Requirements Can Be Added at Any Time
Permits can be reopened at any time to add restrictions as deemed necessary. In addition, the proposed permit allows for tighter restrictions for nutrient-deprived bodies of water such as Chesapeake Bay and Puget Sound. The permit also notes that, because of Total Maximum Daily Load restrictions on a body of water, particular vessels or classes of vessels may be further restricted in their discharges.

Enforcement and Penalties
While best management practices are easier for initial compliance, the use of this standard (rather than a numerical limitation on the effluent) does set up a situation where EPA is allowed 20/20 hindsight on what is best management practice and how it was implemented. EPA can also inspect operations subject to an NPDES permit which will result in a new enforcement agency for vessels.
The CWA provides a fine of not more than $10,000 or imprisonment for up to two years for any person convicted of falsifying a “device or method” required to be maintained under a permit. A false statement, representation, or certification in any record or other document required to be maintained is punished by a fine of not more than $10,000 per violation of imprisonment by not more than 6 months per violation or both. False statements can also be subject to the more severe criminal penalties under 18 U.S.C. 1001.

EPA Hearings and Webinar
EPA is conducting a public hearing on July 21, and three public meetings on the rulemaking (June 19 in DC, June 24 in Portland, OR, and June 26 in Chicago). There is also an EPA webcast on July 2nd from noon to 1:30 Eastern. To register for the webcast go to: http://www.epa.gov/npdes/training

Click here for the PROPOSED PERMIT

Federal Register-General Permits for Discharges Incidental to the Normal Operation of a Vessel

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