Court Extends Compliance Deadline Following Issuance of Final Vessel General Permit

The Environmental Protection Agency (“EPA”) issued its final Vessel General Permit (“VGP”) for discharges incidental to the normal operation of commercial vessels (except fishing vessels, unless they discharge ballast water) on December 18, 2008.  On December 19, the U.S. District Court for the Northern District of California approved a joint motion to delay the effective date of the VGP.  The date for compliance is now set for February 6, 2009.  The link to the EPA website containing the Vessel General Permit and other supporting documents is: http://cfpub.epa.gov/npdes/home.cfm?program_id=350.  EPA estimates that about 61,000 U.S.-flag vessels and 8,000 foreign-flag vessels will be subject to these permitting requirements.

The Final VGP

The final VGP reduces the number of covered discharges from 28 to 26.  This was accomplished by combining three discharge categories into a one category (i.e. controllable pitch propellers, stern tubes, and rudder bearings).  Most of the other substantive changes address discharge requirements related to graywater, tetrachloroethlyne degreasers, tributyltin, and testing requirements related to ballast water. 

The final VGP delays the requirements for inspections, training, recordkeeping and reporting until February 19, 2009.  (The year 2008 is listed in the permit, but we assume that is a typo.)  

With regard to state certification as required by the Clean Water Act, EPA indicates that all jurisdictions except Alaska and Hawaii have granted, denied, or waived jurisdiction.  Thus, the final VGP does not provide for coverage in the waters of those two states at this time.  The final VGP also contains 43 pages of additional state and tribal permit requirements pursuant to certifications for 28 states and Indian tribes.  These state-specific requirements will need to be examined closely because some impose significant new and different, and more stringent, regulatory requirements.  For example, California: (1) requires that all vessel discharges in its waters comply with the numeric effluent limitations contained in its statewide and regional water quality control plans, and (2) mandates that effluent monitoring be performed on all waste stream discharges to determine waste stream quantity and quality.

The Court Order

In short, the District Court approved a motion jointly filed by EPA and the Shipping Industry Ballast Water Coalition, with no objection from the Northwest Environmental Advocates, to extend the time before it “vacates” EPA’s longstanding vessel exemption from the requirement to have a permit for incidental discharges under the Clean Water Act until February 6, 2009. 

Conclusions and Recommendations

This last minute action gives the commercial vessel industry time to digest the final VGP in order to establish and implement operational and recordkeeping procedures to comply with its requirements, including the new, different, and more stringent state-specific requirements.  Even though the compliance date is now February 6, 2009, the industry will have an extra two weeks (until February 19, 2009) to implement discharge inspections, training, and recordkeeping requirements.