"EPA Blows the Man Down"
Stanley A. Millan
January 7, 2009

The U.S. Environmental Protection Agency (“EPA”) has primary authority to implement and enforce the Clean Water Act. Pursuant to this authority, the EPA implemented a broad policy exempting vessel discharges of pollutants at 40 C.F.R. §122.3(a), as follows:

The following discharges do not require NPDES permits:

a. Any discharge of sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink waste, or any other discharge incidental to the normal operation of a vessel.

This provision exempted most discharges incidental to the normal operation of vessels as a means of transportation since 1973. However, in Northwest Environmental Advocates v. U.S. EPA, 2005 WL 756614 (N.D. Cal., March 30, 2005), affirmed by the Ninth Circuit at 537 F.3d 1006 (9th Cir. July 23, 2008), the Court ruled that the above exclusion of incidental discharges from vessels exceeded the EPA’s authority under the Clean Water Act. The Court stayed but vacated the regulatory exclusion of incidental discharges from vessels, effective December 19, 2008. After that date, all discharges incidental to the normal operation of vessels operating as a means of transportation were prohibited unless authorized by a Clean Water Act National Pollutant Discharge Elimination System (“NPDES”) permit. This requirement is still being phased in, in the very near future.

All owners and operators of non-recreational vessels that are 79 feet in length and greater, and commercial vessels of any length that discharge ballast water, are now required to obtain a NPDES permit.

The final NPDES general permit for discharges incidental to normal operation of vessels was issued at 73 Fed. Reg. 79473 (December 29, 2008). It sets an effective date for application for the NPDES permit of February 6, 2009, pursuant to recent court order. Therefore, the regulated community needs to begin compliance with the NPDES permit on February 6, 2009.

Meanwhile, on July 29, 2008, the Clean Boating Act of 2008 was signed into law (public law number 110-288). The law provides that recreational vessels will not be subject to the requirement to obtain the NPDES permit to authorize discharges incidental to their normal operation. It directs the EPA to evaluate recreational vessel discharges, develop management practices for appropriate discharges, and promulgate performance standards for those management practices. It also directs the Coast Guard to promulgate regulations for the use of management practices developed by the EPA and requires recreational boater compliance with such practices. As a result, the EPA will not finalize a proposed recreational vessel general permit that it had previously proposed in 2008.

Additionally, Senate Bill 3298 was passed into law on July 31, 2008. This law imposes a two-year moratorium during which time neither the EPA nor states can require NPDES permits for discharges incidental to the normal operation of vessels of less than 79 feet and commercial fishing vessels of any length; however, the moratorium does not apply to ballast water. That is why the vessel general permit has been revised to reflect the new law and does not cover vessels less than 79 feet or other commercial vessels unless they have ballast water discharges. The EPA estimates that approximately 61,000 domestically-flagged commercial vessels and 8,000 foreign-flagged vessels may be affected by the vessel general permit.

The vessel general permit becomes effective to a vessel in two different ways: by submission of a Notice of Intent or automatically.

The Vessels Electronic Notice of Intent will not be available until late spring of 2009. The EPA says vessels owners/operators are required to submit a Notice of Intent by June 19, 2009.

Vessels of 300 gross tons or more that have the ability to hold or discharge more than 8 cubic meters (2,113 gallons) of ballast water must submit a Notice of Intent in order to receive permit coverage. Other vessels are automatically covered.

An EPA table provides the following deadlines for submission of Notices of Intent:

  • For vessels delivered to owner or operator on or before September 19, 2009, the Notice of Intent deadline is no later than September 19, 2009;
  • For transfer of ownership and/or operation of vessels whose discharges are previously authorized under the vessel general permit, by date of transfer of ownership and/or operation;
  • For new vessels delivered to owner and/or operator after September 19, 2009, 30 days prior to the discharge of pollutants into waters subject to the permit; and
  • For existing vessels delivered to the owner and/or operator after September 19, 2009, that were not previously authorized under the vessel general permit, 30 days prior to discharge into waters subject to the permit.

Only the following 26 discharges are covered by the vessel general permit and each has its own best management practice assigned in the permit (examples follow also):

  • Deck run-off and above waterline hull cleaning (e.g., minimization);
  • Bilge water/oily water separator effluent (e.g., no dispersants, minimization, discharges more than three nautical miles from shore, etc.);
  • Ballast water (e.g., compliant with Coast Guard rules at 33 C.F.R. Part 151, no discharge of oil, training, management plans, etc.);
  • Anti-fouling leachate from anti-fouling hull coatings/hull coating leachate (e.g., registration under 40 C.F.R. 152.15, or no toxins, no tributyltin compounds, etc.);
  • Aqueous film-forming foam (e.g., emergencies, minimization, etc.);
  • Boiler/economizer blow-down (e.g., minimization);
  • Cathodic protection (e.g., minimization);
  • Chain locker effluent (e.g., anchor cleaning);
  • Controllable pitch propeller and thruster hydraulic fluid and other oil/sea interfaces (e.g., no discharges, minimization, etc.);
  • Distillation and reverse osmosis brine (e.g., no toxins);
  • Elevator pit effluent (e.g., emergencies);
  • Fire main systems (e.g., emergencies);
  • Fresh water lay-up (e.g., minimize);
  • Gas turbine wash water (e.g., no oil discharged);
  • Gray water (except for commercial vessels operating in the Great Lakes) (e.g., minimize or store, discharge greater than one nautical mile from shore, minimize kitchen oils, food removal, etc.);
  • Motor gasoline and compensating discharge (e.g., no sheen or oil greater than 15 ppm discharged);
  • Non-oily machinery waste water (e.g., no oil discharged);
  • Refrigeration and air condensate discharge (e.g., no toxic contact);
  • Seawater coating overboard discharge (e.g., discharge when vessel is underway);
  • Seawater piping biofouling prevention (e.g., minimization, registration, etc.);
  • Boat engine wet exhaust (e.g., good maintenance, etc.);
  • Sonar dome discharge (e.g., no maintenance discharges);
  • Underwater ship husbandry (e.g., minimization, doing dry dock when possible, etc.);
  • Well deck discharges (e.g., no discharges, except for emergencies; wash downs free from garbage or harmful quantity of oil, etc.);
  • Gray water mixed with sewage from vessels (e.g., meet gray water practices or other specific requirements); and
  • Exhaust gas scrubber wash water discharge (e.g., no oil discharges).

The vessel general permit and its authorization to discharge expires on December 19, 2013. Earlier vessel permit termination requires notification to the EPA.

Discharges not covered by the vessel general permit but which remain prohibited unless individually permitted include discharges from vessels used as an energy or mining facility, a storage facility, a seafood processing facility, or secured to a water bed for energy exploration or development. Other prohibited discharges include: sewage, used oil, garbage or trash, photo processing effluent, dry cleaning effluent, medical waste, noxious liquid residues, and tetrachloroethylene degreasers.

The vessel general permit must be read in detail for its definitions and complete management conditions for various types of discharges outlined above. Discharges into Clean Water Act already impaired waters, which are separately listed state by state, require further restrictions.

The compliance with the vessel general permit for the majority of vessels will require the implementation of an inspection program and a compliance program with the best management practice. Discharge monitoring reports are required, and vessel owner/operators are required to submit a report to the EPA between 30 and 36 months after obtaining permit coverage. This includes reporting non-compliances. Corrective action is required for any non-compliance. Non-compliances with the permit can subject a vessel owner/operator to EPA or state enforcement action. Many states have additional water quality and coastal zone conditions that the EPA had to add to the vessel general permit.

Other conditions of the permit require routine visual inspections of all areas addressed in the permit, including, but not limited to, cargo holds, boiler areas, machinery storage areas, well decks, and other deck areas. At least once per quarter, the owner/operator must sample any discharge streams such as bilge water or gray water that is not readily visibly inspected, such as from an effluent stream’s discharge below the water line. The vessel’s findings must be documented. Additionally, a comprehensive vessel inspection must be conducted by qualified personnel every 12 months. The inspection covers but is not limited to, vessel hull for attached living organisms, ballast water tanks, bilges, pumps and oily water separators, protective seals for lubricants and hydraulic oil leaks, oil and chemical storage areas, cargo areas and waste storage areas, and all visible pollution control measures to ensure they are functioning properly. A detailed recordkeeping of the inspections and compliance is required by the vessel general permit. Vessel log books may be used for this purpose. However, non-compliances must be reported within a 24-hour period after becoming aware of the circumstances.

There are additional specific vessel class-specific requirements, e.g., effluent limits for discharges, monitoring, training, for large cruise ships, medium cruise ships, large ferries, barges (including hopper barges, chemical barges, tank barges, fuel barges, crane barges, and dry bulk cargo barges), tankers, research vessels, emergency vessels (including fireboats and police boats), and vessels employing experimental ballast water treatment systems. For instance, barges must minimize the contact of below deck condensation with oily or toxic materials, use spill rails if required by vessel class, clean-up spills before scuppers are unplugged, clean cargo residue before washing, perform visual sheen tests after pumping water from below deck or washing down decks, and perform corrective action and recordkeeping if a visible sheen is discharged.

Companies should become familiar with how their vessels are classified under the vessel general permit and inventory their regulated discharges so that they can become compliant with the Clean Water Act in the next 30 days.