The following summary was compiled by the Shipbuilders Council of America. This is an excellent overview of the VGP provisions.
Starting on February 6, 2009, vessels operating in a capacity as a means of transportation, with certain exceptions, are prohibited from discharging any pollutant into waters of the United States unless authorized to do so in accordance with this new general permit or by an individual permit.
SCA’s Comments and Summary of EPA Responses - How will this affect you?
In comments submitted to EPA in August, SCA sought clarifications regarding VGP applicability to floating drydocks, vessels undergoing drydock repairs, and new construction.
--Discharges from vessels during the drydock period are not covered by the new VGP. Issues of who must obtain permits for such discharges are therefore also outside the scope of the VGP.
--Discharges resulting from construction activities are not covered by the VGP as they are incidental to vessel construction, not vessel operation.
--Regarding floating drydocks…
· With respect to ballast water or other incidental, non-industrial, discharges from a floating drydock that is moving between locations, such discharges are within the scope of the VGP as they would be incidental to the normal operation of a vessel operating in a capacity as a means of transportation.
1 With respect to periods when the drydock is transitioning between its status as a means of transportation and becoming, in effect, a ship maintenance and repair facility, such as when discharging ballast water to accept into, or deliver vessels from, the drydock, the VGP would similarly cover its incidental, non-industrial, discharges.
2 Once immobile and operating in an industrial capacity as a ship maintenance or repair facility, the drydock ceases to operate in a capacity as a means of transportation and thus its discharges are not covered by the VGP. NOTE: that similar logic would apply to other types of vessels that transition between transportation and non transportation modes of operation (for example, mobile drilling units or construction barges which cease moving to carry out their industrial, non-transportation functions).
See EPA’s 'Response to Comments' document on public docket and SCA's full comment at www.shipbuilders.org.
Other Applicability and Exemptions
Commercial fishing vessels of any size and non-recreational vessels less than 79 feet in length are exempt from coverage under the VGP. This was due to legislative action late in the 110th Congress.
Below summary from K&L Gates…For addition information see http://cfpub.epa.gov/npdes/home.cfm?program_id=350 (link to VGP, Fact Sheet, and Supporting DOCs) or log into SCA’s members only site at www.shipbuilders.org.
Why is this permit program so different?
This permit program is different from most others that the maritime industry has previously faced because:
- It covers discharges from vessels beyond just ballast water – it includes 25 other incidental discharges never before regulated;
- It is administered and enforced by the EPA, not the United States Coast Guard, and contains extensive administrative, civil and criminal sanctioning authority that is often used in parallel;
- It gives the EPA significant new powers over the maritime industry including the power to inspect and vessels, impose conditions beyond those in the VGP, require production of information, records and the performance of testing and other evaluations;
- Many, if not all, of the inspection records required under this program, and other materials documenting compliance with it, will be accessible to the public;
- Noncompliance must be reported to the EPA and, in many cases, publicly disclosed, and failure to do so could be a crime;
- The permit includes widely different conditions imposed by states, and that only apply in the waters of particular States;
- Ultimately, this program will be adopted in many States, giving them additional enforcement authority and the ability to adopt different and more restrictive standards;
- It may be enforced by private citizens and advocacy groups under the citizen suit provision, which is one of the most commonly used environmental laws.
What discharges are covered?
In the final VGP, EPA has identified 26 discharges incidental to the normal operation of commercial vessels and recreational vessels greater than 79 feet (24.08 meters) in length that are covered by the VGP:
- Deck washdown and runoff and above water line hull cleaning
- Bilge water
- Ballast water
- Anti-fouling leachate from anti-fouling hull coatings
- Aqueous film forming foam
- Boiler/economizer blowdown
- Cathodic protection
- Chain locker effluent
- Controllable pitch propeller hydraulic fluid and thruster hydraulic fluid and other oil sea interfaces including discharges from paddle wheel propulsion, stern tubes, thruster bearings, stabilizers, rudder bearings, azimuth thrusters, and propulsion pod lubrication
- Distillation and reverse osmosis brine
- Elevator pit effluent
- Firemain systems
- Freshwater layup
- Gas turbine wash water
- Graywater
- Motor gasoline and compensating discharge
- Non-oily machinery wastewater
- Refrigeration and air condensate discharge
- Seawater cooling overboard discharge
- Seawater piping biofouling prevention
- Small boat engine wet exhaust
- Sonar dome discharge
- Underwater ship husbandry
- Welldeck discharges
- Graywater mixed with sewage from vessels
- Exhaust gas scrubber wash water discharge
What discharges are not covered by the VGP?
EPA has identified several discharges that are not covered by the VGP: (1) discharges not subject to the former NPDES permit exclusion, including vessels being operated in a capacity other than as a means of transportation (e.g., energy or mining facilities), (2) sewage from vessels, (3) used or spent oil, (4) rubbish, trash, garbage or other material discarded overboard, (5) photo processing waste, (6) effluent from dry cleaning operations, (7) discharges of medical waste and related materials, (8) discharges of noxious liquid substances, (9) tetrachloroethylene (perchloroethylene) degreasers, and (10) discharges currently or previously covered by another permit. See Final VGP Fact Sheet at 28-30. Also, the permit materials explain that discharges incidental to the normal operation of a vessel are discharges that occur when a vessel is operated according to good marine practice or that result from the operation of properly and routinely maintained vessel equipment. EPA has stated that discharges that are not in line with good marine practice are not considered incidental to the normal operation of a vessel and, thus, not covered by the VGP. See Final VGP Fact Sheet at 22.
How do you get a VGP?
Initial authorization under the VGP is automatic. That is, as of December 19, 2008, all covered vessels are authorized to discharge pursuant to the VGP. If your vessel is greater than or equal to 300 gross tons or the vessel has the capacity to hold or discharge more than 8 cubic meters (2113 gallons) of ballast water, you must, in accordance with the deadlines in the table below and beginning on June 19, 2009, submit a “Notice of Intent,” or “NOI,” in order to maintain or obtain coverage under the VGP.
CATEGORY NOI DEADLINE DISCHARGE AUTHORIZATION DATE
Vessels delivered to owner operator on or before September 19, 2009 No later than September 19, 2009 Authorization granted until September 19, 2009. If EPA receives an NOI on or before September 19, 2009, uninterrupted coverage continues.
New Owner/Operator of Vessel
– transfer of ownership and/oroperation of a vessel whosedischarge is previously authorized under this permit By date of transfer of ownership and/or operation
Date of transfer or date EPA receives NOI, whichever is later
New vessels delivered to owneror operator after September 19, 2009 30 days prior to discharge into waters subject to this permit 30 days after complete NOI received by EPA
Existing vessels delivered toowner or operator after September 19, 2009 that were not previously authorized under this permit 30 days prior to discharge intowaters subject to this permit
30 days after complete NOI received by EPA
NOI submissions will be publicly available information along with reports required under the permit, and the agency can use this information to impose additional vessel specific requirements.
What must be done to comply with the permit?
Each vessel’s compliance with the VGP can only be determined on a case-by-case basis. Generally, EPA has set standards for how each of the 26 incidental discharge streams must be managed. In some cases the pollutant must be removed from the discharge before it leaves the vessel. In other cases, the discharge has to be completely or substantially prevented. Adherence to those standards will constitute compliance with the VGP.
Most of the standards in the VGP that must be met are called “Best Management Practices” or “BMPs.” The BMPs are schedules of activities, prohibitions of practices, maintenance procedures, and other management practices that are designed to prevent or reduce the pollution of “waters of the United States.” However, numeric effluent limits have been established in the VGP for graywater and pool and spa discharges from cruise ships, oily discharges, including oily mixtures, and residual biocide limits from vessels using experimental ballast water treatment systems. The permit also requires that discharges must be controlled as necessary to meet applicable water quality standards and that additional controls must be employed where necessary to, for example: (1) be consistent with applicable waste load applications in waters with approved or established Total Maximum Daily Loads; or (2) comply with a State’s or Tribe’s antidegradation policies.
Some of the BMPs are drafted in non-mandatory language. For example, the BMPs for deck washdown provide that “cleaners and detergents should not be caustic or only minimally caustic and should be biodegradable.” (Emphasis added.) The permit states that provisions stating that “EPA recommends” certain actions or that the permittee “should” take certain actions constitute recommendations by the agency. It is unclear whether failure to follow EPA’s “recommendations” would be looked on unfavorably by the agency in an enforcement context.
How is compliance with the permit confirmed?
The VGP contains extensive inspection, monitoring, reporting, and recordkeeping obligations (VGP, Part 4) that require each vessel to document its own compliance or noncompliance and to undertake corrective action (VGP, Part 3) when noncompliance is discovered. Some of these requirements include:
- Routine visual self-inspections;
- Documentation of inspections in logbooks;
- Analytical monitoring and sampling;
- An annual comprehensive inspection;
- If the vessel is dry docked, a dry dock report;
- Records of violations of effluent limits, findings from inspections, and certain maintenance activities;
- Specialized records for certain discharges;
- An annual noncompliance report; and
- A one-time report and assessment due 30-36 months after issuance of the permit.
These requirements sometimes differ by vessel type.
What if compliance problems are found?
The VGP requires “corrective action” – action that must be taken to correct problems identified during an inspection or otherwise discovered. (VGP, Part 3.) The proposed permit sets out several “triggers” for corrective action, such as when BMPs are not actually reducing discharges that contain pollutants. Once the need for corrective action is triggered, a written corrective action assessment must be prepared. The proposed permit sets deadlines for taking corrective action. Any report of corrective action could result in the imposition of administrative, civil, or criminal penalties, as explained below.
What role do States play?
Section 401 of the CWA gives States the opportunity to certify that the VGP will not degrade their waters. According to EPA, if they decline to certify, the VGP is not effective in their waters. Vessels operating in such States will have to either cease all incidental discharges or leave the State’s waters, since their incidental discharges will be unpermitted, or be exposed to suits not only by the government, but by environmental groups as well. Many States that have certified the VGP have added conditions that must be met. It is important that any vessel operator know whether the State waters in which they are operating have conditions attached to their approval of the VGP that must be met. State certification conditions can be found in Part 6 of the VGP.
In the near term, States will probably not be enforcing the VGP on behalf of EPA. Instead, they might develop their own VGP program under applicable state law. States do have some authority to impose stricter standards than those contained in the VGP. Ultimately, many States will seek approval from EPA to operate their own program under the CWA. 33 U.S.C. § 1342(b). These are commonly called “approved state programs.”