• EPA Releases Draft NPDES General Permits for Discharges Incidental to the Normal Operation of a Vessel
  • July 15, 2008
  • Law Firm: Vinson & Elkins LLP - Houston Office
  • On June 17, 2008, the United States Environmental Protection Agency (EPA) proposed the first-ever general permits under the Clean Water Act (CWA) to regulate and authorize discharges incidental to the normal operation of commercial vessels and recreational vessels. Commercial vessels requiring the National Pollutant Discharge Elimination System (NPDES) Vessel General Permit (VGP) include oil tankers, dry bulk carriers, tugs, barges, offshore vessels, and certain large recreational vessels. The Recreational General Permit (RGP) will cover smaller recreational vessels. By EPA’s own calculations, the proposed permits could apply to as many as 91,000 commercial vessels and 13 million recreational vessels.

    Although Congress established the NPDES permitting program under the CWA in 1972, discharges from vessels have been exempt from regulation since that time. EPA proposed these general permits in response to a ruling from a federal district court in Northern California vacating, as of September 30, 2008, EPA’s longstanding exclusion of vessel discharges from the NPDES permit program. Despite its pending appeal of that decision, EPA proposed these permits because of the fast-approaching deadline vacating the exclusion.

    Due to the large number of vessels requiring NPDES permits under the ruling, EPA determined that general permits would be more administratively appropriate than individual permits. Dischargers typically are required to submit a notice of intent (NOI) to be covered by a general permit, but EPA is proposing to waive the NOI requirement for smaller vessels (less than 300 gross registered tons) or those that do not have the capacity to carry more than 8 cubic meters (2113 gallons) of ballast water under the VGP.

    The VGP broadly covers virtually all conceivable discharges from domestic and foreign vessels into all territorial waters of the United States (which extend to the three-mile limit), including ballast water, deck runoff, gray water, and gas turbine water wash, among others. Some discharges that are already subject to regulation, notably sewage, are not covered by this permit and the existing regulations are not affected by the VGP. EPA concluded that numeric effluent limits were not practicable to achieve the levels of control required under the CWA for the large majority of the discharge types. Instead, the VGP requires either specific behaviors or best management practices (BMPs). As an example, for ballast water, EPA requires mandatory ballast water exchange or flushing in certain specified situations. As with any permitting program, the proposed VGP requires regular inspections, the maintenance of written records, and imposes reporting requirements.

    Unless the district court’s ruling is overturned or the date for compliance is extended, the September 30, 2008, deadline must be complied with by EPA. EPA is soliciting and accepting comments on the proposed VGP until August 1, 2008. EPA will hold public meetings around the country and a webcast will be broadcast July 2, 2008, wherein EPA will discuss the permit requirements and answer questions. A public hearing will be held on July 21, 2008, in Washington, DC. All owners and operators of vessels should review the proposed permits, the universe of discharges identified by EPA as regulated under the VGP and other information provided by EPA about this new permitting program and provide comments as necessary. These materials can be accessed at http://www.epa.gov/npdes/vessels.