April 16, 2008
Previously published on March 2008
New Development
Sen. Ted Stevens (R-AK) and Rep. Don Young (R-AK) introduced companion bills (S. 2645 and H.R. 5594) early this year, entitled the “Vessel Discharge Evaluation and Review Act,” that would suspend any permit requirement under any existing law for a “discharge incidental to the normal operation of a vessel” upon enactment of the legislation. Moreover, the proposed legislation would require the Coast Guard to conduct a study to evaluate and review vessel discharges other than ballast water, and to require, based on that study, the Coast Guard to promulgate a final rule to establish a program for uniform national discharge standards in lieu of any permit program.
Background
In 1972, the Clean Water Act (CWA) established the National Pollutant Discharge Elimination System (NPDES), which regulates all discharges of pollutants into U.S. navigable waters. Since implementing the NPDES requirements more than 30 years ago, the Environmental Protection Agency (EPA) has exempted all 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 Clean Water Act. In September 2006, the U.S. District Court for the Northern District of California sided with the environmental groups and ordered the EPA to vacate this longstanding regulatory exemption including 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. On November 16, 2006, the United States filed a notice of appeal on behalf of EPA with the 9th Circuit Court of Appeals appealing the District Court’s decision. The appeal is currently pending.
Despite the appeal, EPA thought it prudent to initiate the rulemaking rather than await the outcome of the appeal because of the short timeframe it has in which to issue new rules. Accordingly, 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. Comments were due August 6, 2007.
Effects of the Proposed Stevens and Young Legislation
If enacted, the Stevens and Young legislation would significantly change the current regime related to vessel discharges as follows:
- NPDES Permit Program Suspended: Incidental discharges from vessels would no longer be subject to the NPDES permitting program under the CWA.
- Discharge Regulation Jurisdiction Given to Coast Guard: The Coast Guard would be given jurisdiction, in lieu of EPA, to establish a program to regulate vessel discharges.
- Uniform National Discharge Standard Development: The Coast Guard would be required to establish enforceable uniform national discharge standards, in lieu of any permit program.
- New Program Modeled on Program for Vessels of the Armed Forces: The new program would be modeled in whole or in part on the existing regulatory program for vessels of the Armed Forces based upon the best available technology which consists of the following three phase process: (1) identifying the types of vessel discharges requiring control, (2) setting standards for performance for control devices or management practices, and (3) specifying the design, construction, installation, and use of control devices or practices to meet those standards.
- State Regulation Preempted: The new national discharge standards would preempt any state or local regulations with respect to incidental vessel discharges. Nonetheless, states may apply for an exemption to impose stricter protections under certain circumstances. Additionally, states may petition the Coast Guard to revisit the regulations if new scientific and technical information becomes available. However, states would be authorized to enforce the new federal discharge standards.
- Exemptions: The legislation would not apply to, nor would any uniform national standards be developed for, certain discharges or vessels, including (1) vessels of the Armed Forces, (2) sewage discharges, (3) discharges not currently subject to the 40 C.F.R. 122.3 incidental discharge standard, (4) vessels less than 79 feet in length, (5) ballast water discharges, (6) small fishing vessels, (7) recreational vessels, (8) discharges resulting from research on the aquatic environment, (9) discharges from vessels authorized by an On-Scene Coordinator in a pollution response effort, (10) discharges necessary to secure vessel or human safety or to fight fires, and (11) any discharges from foreign countries’ military vessels.
- Study: Prior to the promulgation of any rulemaking to implement these new requirements, the Coast Guard would be required to produce a report within two years characterizing the extent of incidental vessel discharges, their threat to public health and the environment, and recommendations for mitigation.
Conclusions and Recommendations
If enacted, the Stevens and Young bills would render the District Court ruling moot by removing from EPA the authority to regulate incidental commercial and recreational vessel discharges under the NPDES program and giving separate authority to the Coast Guard to establish a new uniform national discharge standard in lieu of any permit program.
Although it is difficult to predict at this stage if the proposed legislation has much chance of success, vessel owners and operators and other interested parties should not only closely monitor this legislation in conjunction with the EPA rulemaking and appeal, but should also seriously consider whether it is in their interest to lend support to this proposal to set up a new regime under Coast Guard oversight and jurisdiction in lieu of any permit program subject to EPA oversight and jurisdiction.
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