On June 17, 2008, the U.S. Environmental Protection Agency ("EPA") issued a Notice of proposed permit issuance for two general permits to cover discharges incidental to the normal operation of commercial and recreational vessels under the Clean Water Act ("CWA"). The proposed permits would affect as many as 91,000 commercial vessels and 13 million recreational vessels that have been exempt from National Pollutant Discharge Elimination System ("NPDES") permit requirements for the last 35 years. EPA is accepting comments on the proposal until August 1, 2008, and will also hold a series of public meetings and a public hearing to explain the contents of the proposed permits and answer questions. A copy of the proposal, which includes the specific topics that EPA is soliciting comments on, can be found at: http://edocket.access.gpo.gov/2008/pdf/E8-13615.pdf
Background
In 1972, the CWA established the NPDES permitting program, which governs discharges of pollutants into U.S. navigable waters. Since implementing the NPDES requirements nearly 35 years ago, EPA has exempted discharges "incidental to the normal operation of a vessel" from these permitting requirements.
Various environmental groups sued EPA claiming that the vessel exemption was illegal under the CWA. In September 2006, the U.S. District Court for the Northern District of California sided with the environmental groups and ordered EPA to vacate this longstanding regulatory exemption, which included discharges of ballast water, gray water, bilge water, and deck runoff, among others. As a consequence, EPA is required to develop a permitting program for incidental discharges. The District Court gave EPA until September 30, 2008 to issue new regulations governing such discharges. EPA appealed the decision and the appeal is pending.
Despite the appeal, EPA initiated a rulemaking. On June 21, 2007, EPA issued a notice requesting information related to developing a framework for a permitting program governing pollutant discharges incidental to the normal operation of commercial and recreational vessels. Following review of those comments, EPA has now issued this Notice.
Proposed NPDES Permit Requirements
General Permits and Vessels Covered
EPA is proposing to issue a Vessel General Permit ("VGP") for commercial and recreational vessels greater than or equal to 79 feet in length and a Recreational General Permit ("RGP") for recreational vessels less than 79 feet in length.
Geographic Coverage
The general permits would cover vessel discharges in waters of the United States (i.e., out to three miles), including waters in all states and territories, regardless of whether a state is otherwise authorized to implement the NPDES permit program within its jurisdiction.
Vessel General Permit Requirements
The VGP addresses 28 potential vessel discharges by utilizing preexisting effluent limits established by the Coast Guard and specific Best Management Practices ("BMPs") to control the discharge of waste streams. For each discharge type, the VGP will implement effluent limits designed to decrease the amount of constituents entering the waste stream. While the proposal contains a complete listing of discharges that would be covered, some of the main ones include: ballast water, washdown and deck runoff, chain locker effluent, gas turbine water wash, graywater, fire main systems, and bilge water. Certain discharges covered under other regimes will not be covered under the VGP, including, but not limited to, sewage, garbage, photo processing effluent, effluent from dry cleaning operations, and discharges of medical waste.
Vessels that are either 300 or more gross tons or have the capacity to hold or discharge more than eight cubic meters of ballast water will be subject to additional requirements. To obtain VGP permit coverage, the vessel owner/operator would be required to submit a Notice of Intent ("NOI") to be covered. The NOI must be submitted between six and nine months after the VGP's issuance date. Prior to NOI submission, however, qualifying vessels will be deemed automatically authorized to discharge under the VGP. Under no circumstances, however, will this automatic authorization extend beyond nine months. For vessels delivered up to nine months after the VGP's issuance date, the vessel will receive permit coverage on the date that EPA receives the NOI. Vessels delivered after that date will receive permit coverage 30 days after EPA receives the NOI. Vessels less than 300 gross tons with no more than eight cubic meters of ballast water will not be required to submit an NOI and will be automatically authorized to discharge according to the VGP requirements.
The proposed VGP also sets forth various monitoring, inspection, and reporting procedures. Vessels will be required to conduct and log routine self-inspections and monitoring of all areas of the vessel that the permit encompasses. The VGP will also require vessels to conduct an annual comprehensive inspection designed to ensure that hard-to-reach areas of the vessel are also inspected for permit compliance. Vessels in dry dock will be subjected to a dry dock inspection and reports. In addition, the following eight specific types of vessels will have additional requirements designed to address discharges from features unique to those vessels: medium and large cruise ships, large ferries, barges, oil or petroleum tankers, research vessels, rescue boats, and vessels employing experimental ballast water treatment systems.
Recreational Vessel Permit Requirements
The RGP addresses a smaller range of discharges than the VGP, since recreational vessels produce different types of discharges that are generally fewer in number and variety than larger vessels covered by the VGP. The RGP is a simpler permit, which primarily includes BMPs designed to minimize the amount of any discharge produced, as well as reduce the likelihood the discharge will enter a body of water. Furthermore, the RGP will be automatic and will not require an NOI to receive permit coverage.
Timing
Unless the 9th Circuit rules in EPA's favor on the appeal, the NPDES exclusion for discharges incidental to normal operations will be vacated on September 30, 2008. EPA notes in this Notice that it normally takes EPA significantly more time to complete a general permit of such complexity, but states it will make every effort to finalize these permits by September 30. EPA's failure to issue general permits prior to that date would inject substantial uncertainty into this matter and create immense compliance uncertainties.
Compliance
Vessel owners and operators must be cognizant of the fact that, once the NPDES permits are issued, EPA will be the agency charged with making the determination of whether a permit condition has been violated. Violations of a permit could result in an administrative or civil penalty, and a knowing or negligent violation could constitute a criminal offense under the CWA. Potential violations could include not only effluent limit exceedances, but also a failure to maintain the required records and conduct the required inspections and monitoring. In particular, under the CWA, knowingly falsifying, tampering with, or rendering inaccurate any monitoring device or method required to be maintained under the general permit can constitute a separate criminal offense.
Recommendations and Conclusions
The implications of these proposed permits are huge. Vessel owners/ operators should carefully review the various types of discharges that are proposed to be covered under the general permit and EPA's questions on specific issues, and provide comments. In addition, vessel owners and operators should review EPA's Permit Fact Sheet, which provides more details on the various aspects of the proposed permits. http://cfpub.epa.gov/npdes/home.cfm?program_id=350
Action must be taken quickly be - cause the underlying permit documentation is voluminous and comments must be received by August 1, 2008.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
