Final National Pollutant Discharge Elimination System General Permit for Discharges Incidental to the Normal Operation of a Vessel

The VGP applies to owners and operators of non-recreational vessels that are 79 feet and greater in length. Currently, charter boats are not defined as recreational vessels in the clean water act.

 This action applies to vessels operating in a capacity as a means of transportation that have discharges incidental to their normal operation into waters subject to this permit, except recreational vessels as defined in Clean Water Act section 502(25). For a discussion of applicability of this permit to fishing vessels greater than 79 feet in length and to ballast water discharges regardless of length see section II.A below 

 

EPA Regions 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 are finalizing the NPDES Vessel General Permit (VGP) to authorize discharges incidental to the normal operation of non-military and non-recreational vessels greater than or equal to 79 feet in length. This VGP, which has an effective date of December 19, 2013, will replace the current VGP, which was issued in December 2008 and expires on December 19, 2013. EPA provided notice of the availability of the draft permit and accompanying fact sheet for public comment in the Federal Register on December 8, 2011. At that time, EPA also provided notice of availability of the draft small Vessel General Permit, on which the Agency has not yet taken final action.

 

 

This permit is effective on December 19, 2013.

In accordance with 40 CFR part 23, this permit shall be considered issued for the purpose of judicial review on the day 2 weeks after Federal Register publication. Under section 509(b) of the Clean Water Act, judicial review of this general permit can be had by filing a petition for review in the United States Court of Appeals within 120 days after the permit is considered issued for purposes of judicial review. Under section 509(b)(2) of the Clean Water Act, the requirements in this permit may not be challenged later in civil or criminal proceedings to enforce these requirements. In addition, this permit may not be challenged in other agency proceedings. Deadlines for submittal of notices of intent are provided in Part 1.5 of the VGP. This permit also provides additional dates for compliance with the terms of this permit.

FOR FURTHER INFORMATION CONTACT: For further information on the VGP, contact Ryan Albert at 202-564-0763 or Juhi Saxena at 202-564-0719, or at EPA Headquarters, Office of Water, Office of Wastewater Management, Mail Code 4203M, 1200 Pennsylvania Ave. NW., Washington DC 20460; or email at This email address is being protected from spambots. You need JavaScript enabled to view it..

SUPPLEMENTARY INFORMATION: This supplementary information is organized as follows:

Table of Contents

I. General Information

    A. Does this action apply to me?

    B. How can I get copies of this document and other related 

information?

    C. Public Outreach: Public Hearings and Public Meetings, 

Webcasts

    D. Who are the EPA regional contacts for the permit?

II. Background of Permit

    A. Statutory and Regulatory History

    B. The 2008 VGP

    C. National Research Council and Science Advisory Board Ballast 

Water Studies

III. Scope and Applicability of the 2013 VGP

    A. CWA Section 401 Certification and Coastal Zone Management Act

    B. Geographic Coverage of VGP

    C. Categories of Vessels Covered Under VGP

    D. Summary of the VGP and Significant Changes from the Proposed 

VGP

IV. Analysis of Economic Impacts of VGP

V. Executive Orders 12866 and 13563

 

I. General Information

 

A. Does this action apply to me?

 

    This action applies to vessels operating in a capacity as a means 

of transportation that have discharges incidental to their normal 

operation into waters subject to this permit, except recreational 

vessels as defined in Clean Water Act section 502(25) and vessels of 

the Armed Forces as defined in Clean Water Act section 312(a)(14). For 

a discussion of applicability of this permit to fishing vessels greater 

than 79 feet in length and to ballast water discharges regardless of 

length, see section II.A below. Affected vessels are henceforth 

referred to as non-military, non-recreational vessels. Unless otherwise 

excluded from coverage by Part 6 of the VGP, the waters subject to this 

permit are waters of the U.S. as defined in 40 CFR 122.2. That 

provision defines ``waters of the U.S.'' as certain inland waters and 

the territorial sea, which extends three miles from the baseline. More 

specifically, CWA section 502(8) defines ``territorial seas'' as ``the 

belt of the seas measured from the line of the ordinary low water along 

that portion of the coast which is in direct contact with the open sea 

and the line marking the seaward limit of inland waters, and extending 

seaward a distance of three miles.'' Note that the Clean Water Act 

(CWA) does not require NPDES permits for vessels or other floating 

craft operating as a means of transportation beyond the territorial 

seas, i.e., in the contiguous zone or ocean as defined by the CWA 

sections 502(9), (10). See CWA section 502(12) and 40 CFR 122.2 

(definition of ``discharge of a pollutant''). This permit, therefore, 

does not apply in such waters.

    Non-military, non-recreational vessels greater than 79 feet in 

length operating in a capacity as a means of transportation that need 

NPDES coverage for their incidental discharges will generally be 

covered under the VGP.

 

B. How can I get copies of this document and other related information?

 

    1. Docket. EPA has established an official public docket for this 

action: Docket ID No. EPA-HQ-OW-2011-0141. The official public docket 

is the collection of materials for the final permit. It is available 

for public viewing at the Water Docket in the EPA Docket Center, (EPA/

DC) EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC 

20460. Although all documents in the docket are listed in an index, 

some information is not publicly available, i.e., Confidential Business 

Information (CBI) or other information whose disclosure is restricted 

by statute. Publicly available docket materials are available 

electronically through http://www.regulations.gov and in hard copy at 

the EPA Docket Center Public Reading Room, open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding legal holidays. The telephone 

number for the Public Reading Room is (202) 566-1744 and the telephone 

number for the Water Docket is (202) 566-2426. Please note that EPA is 

in the process of uploading materials in to the docket and expects to 

be finished with that process by two weeks from the date of publication 

of this document in the Federal Register.

    2. Electronic Access. You may access this Federal Register document 

electronically at www.federalregister.gov. An electronic version of the 

public docket is available through the Federal Docket Management System 

(FDMS) found at http://www.regulations.gov. You may use the FDMS to 

view public comments, access the index listing of the contents of the 

official public docket, and to access those documents in the public 

docket that are available electronically. Once at the Web site, enter 

the appropriate Docket ID No. in the ``Search'' box to view the docket.

    Certain types of information will not be placed in the EPA dockets. 

Information claimed as CBI and other information whose disclosure is 

restricted by statute, which is not included in the official public 

docket, will not be available for public viewing in EPA's electronic 

public docket. EPA policy is that copyrighted material will not be 

placed in EPA's electronic public docket but will be available only in 

printed, paper form in the official public docket. Although not all 

docket materials may be available electronically, you may still access 

any of the publicly available docket materials through the docket 

facility identified in this section.

    3. Response to public comments. EPA received 5,486 comments on the 

proposed VGP from the shipping industry, States, Tribes, environmental 

groups, foreign governments and the public. EPA has responded to all 

comments received and has included these responses in a separate 

document in the public docket for this permit. See the document titled 

Proposed VGP: EPA's Response to Public Comments.

 

C. Public Outreach: Public Hearings and Public Meetings, Webcasts

Because EPA anticipated a significant degree of public interest in 

the draft VGP, EPA held a public hearing on Wednesday January 11, 2012 

to receive public comment and answer questions concerning the draft 

permit. The hearing was held at EPA East Room 1153, 1201 Constitution 

Ave. NW., Washington DC 20460. In addition, EPA held a public meeting 

on Monday January 23, 2012, at the Ralph H. Metcalfe Federal Building, Room 331, 77 West Jackson 

Blvd., Chicago IL 60604. The purpose of those meetings was to present 

the proposed requirements of the draft VGP and the basis for those 

requirements, as well as to answer questions concerning the draft 

permit. The public meetings and public hearing were attended by a wide 

variety of stakeholders including representatives from industry, 

government agencies, and environmental organizations. In addition, EPA 

held a webcast on January 19, 2012 and two Question and Answer sessions 

on January 31 and February 7, 2012 to provide information on the 

proposed permit and to answer questions from interested parties that 

were unable to attend the public meetings or hearing.

 

D. Who are the EPA regional contacts for this permit?

 

    For EPA Region 1, contact John Nagle at US EPA, Region 1, New 

England/Office of Ecosystem Protection, 5 Post Office Square, Suite 

100, Mail Code: OEP 06-1, Boston, MA 02109-3912; or at tel.: (617) 918-

1054; or email at This email address is being protected from spambots. You need JavaScript enabled to view it..

    For EPA Region 2, contact Sieglinde Pylypchuk at US EPA, Region 2, 

290 Broadway, 24th Floor, New York, NY 10007-1866; or at tel.: (212) 

637-4133; or email at This email address is being protected from spambots. You need JavaScript enabled to view it.. For Puerto Rico, 

contact Sergio Bosques at tel.: (787) 977-5838; or email at 

This email address is being protected from spambots. You need JavaScript enabled to view it..

    For EPA Region 3, contact Mark Smith at US EPA, Region 3, 1650 Arch 

St., Mail Code: 3WP41, Philadelphia, PA 19103-2029, or at tel.: (215) 

814-3105; or email at This email address is being protected from spambots. You need JavaScript enabled to view it..

    For EPA Region 4, contact Marshall Hyatt at US EPA, Region 4 Water 

Protection Division, Atlanta Federal Center, 61 Forsyth St. SW., 

Atlanta, GA 30303-3104; or at tel.: (404) 562-9304; or email at 

This email address is being protected from spambots. You need JavaScript enabled to view it.

    For EPA Region 5, contact Sean Ramach at US EPA, Region 5, 77 W 

Jackson Blvd., Mail Code: WN16J, Chicago, IL 60604-3507; or at tel.: 

(312) 886-5284; or email at This email address is being protected from spambots. You need JavaScript enabled to view it..

    For EPA Region 6, contact Jenelle Hill at U.S. EPA, Region 6, 1445 

Ross Ave., Suite 1200, Dallas, TX 75202-2733; or at tel.: (214) 665-

9737; or email at This email address is being protected from spambots. You need JavaScript enabled to view it..

    For EPA Region 7, contact Alex Owutaka at U.S. EPA Region 7, 11201 

Renner Boulevard, Lenexa, Kansas 66219; or at tel.: (913) 551-7584; or 

email at This email address is being protected from spambots. You need JavaScript enabled to view it..

    For EPA Region 8, contact Lisa Luebke at US EPA, Region 8, 1595 

Wynkoop St., Mail Code: 8P-W-WW, Denver, CO 80202-1129; or at tel.: 

(303) 312-6256; or email at This email address is being protected from spambots. You need JavaScript enabled to view it..

    For EPA Region 9, contact Eugene Bromley at US EPA, Region 9, 75 

Hawthorne St., San Francisco, CA 94105-3901; or at tel.: (415) 972-

3510; or email at This email address is being protected from spambots. You need JavaScript enabled to view it..

    For EPA Region 10, contact Cindi Godsey at US EPA, Region 10, 222 W 

7th Ave., Box 19, Anchorage, AK 99513; or at tel.: (907) 271-6561; or 

email at This email address is being protected from spambots. You need JavaScript enabled to view it..

 

II. Background of Permit

 

A. Statutory and Regulatory History

 

    The Clean Water Act (CWA) section 301(a) provides that ``the 

discharge of any pollutant by any person shall be unlawful'' unless the 

discharge is in compliance with certain other sections of the Act. 33 

U.S.C. 1311(a). The CWA defines ``discharge of a pollutant'' as ``(A) 

any addition of any pollutant to navigable waters from any point 

source, (B) any addition of any pollutant to the waters of the 

contiguous zone or the ocean from any point source other than a vessel 

or other floating craft.'' 33 U.S.C. 1362(12). A ``point source'' is a 

``discernible, confined and discrete conveyance'' and includes a 

``vessel or other floating craft.'' 33 U.S.C. 1362(14).

    The term ``pollutant'' includes, among other things, ``garbage * * 

* chemical wastes * * * and industrial, municipal, and agricultural 

waste discharged into water.'' The Act's definition of ``pollutant'' 

specifically excludes ``sewage from vessels or a discharge incidental 

to the normal operation of a vessel of the Armed Forces'' within the 

meaning of CWA section 312. 33 U.S.C. 1362(6).

    One way a person may discharge a pollutant without violating the 

CWA section 301 prohibition is by obtaining authorization to discharge 

(referred to herein as ``coverage'') under a CWA section 402 National 

Pollutant Discharge Elimination System (NPDES) permit (33 U.S.C. 1342). 

Under CWA section 402(a), EPA may ``issue a permit for the discharge of 

any pollutant, or combination of pollutants, notwithstanding section 

1311(a)'' upon certain conditions required by the Act.

    EPA issued the original VGP in response to a District Court ruling 

which vacated a longstanding regulatory exemption for discharges 

incidental to the normal operation of vessels at 40 CFR 122.3(a). 

Northwest Envtl. Advocates et al. v. United States EPA, 2006 U.S. Dist. 

LEXIS 69476 (N.D. Cal. 2006). EPA developed the VGP to regulate 

incidental discharges from vessels operating in a capacity as a means 

of transportation. That permit was issued on December 18, 2008, with an 

effective date of December 19, 2008. 73 FR79,473 (Dec. 29, 2008). 

Subsequently, the U.S. District Court for the Northern District of 

California issued an order providing that ``the exemption for 

discharges incidental to the normal operation of a vessel, contained in 

40 CFR 122.3(a), is vacated as of February 6, 2009.'' Northwest 

Environmental Advocates et al. v. United States EPA, No. C 03-05760-SI 

(December 17, 2008). Therefore, the date when the regulated community 

was required to comply with the VGP was February 6, 2009.

    On July 31, 2008 Congress enacted Public Law 110-299, which 

generally prohibited NPDES permitting for discharges incidental to the 

normal operation of commercial fishing vessels (regardless of size) and 

those other non-recreational vessels less than 79 feet in length for 

two years from enactment. This moratorium was subsequently extended to 

December 18, 2013, by Public Law 111-215. On December 20, 2012, 

President Obama signed the Coast Guard and Maritime Transportation Act 

of 2012, which extends the expiration date of the moratorium from 

December 18, 2013 to December 18, 2014. Sec.  703 of Public Law 112-

213. That moratorium does not include ballast water discharges. 

Therefore, commercial fishing vessels that are greater than 79 feet and 

do not have ballast water discharges will, barring further legislative 

action, not be required to seek coverage under the VGP until the 

moratorium expires on December 18, 2014. That moratorium also does not 

apply to other incidental discharges, which on a case-by-case basis, 

EPA or the State, as appropriate, determines contribute to a violation 

of water quality standards or pose an unacceptable risk to human health 

or the environment.

    The original legislation called for EPA to study the relevant 

discharges and submit a report to Congress. EPA finalized this Report 

to Congress, entitled ``Study of Discharges Incidental to Normal 

Operation of Commercial Fishing Vessels and Other Non-Recreational 

Vessels Less Than 79 Feet'' in August 2010, and it can be viewed at: 

http://cfpub.epa.gov/npdes/vessels/background.cfm.

 

B. The 2008 VGP

 

    The 2008 VGP addresses 26 potential vessel discharge streams by 

establishing effluent limits, including Best Management Practices 

(BMPs), to control the discharges of waste streams and constituents 

found in those waste

 

[[Page 21941]]

 

streams. For these discharges, the permit establishes effluent limits 

pertaining to the constituents found in the effluent and BMPs designed 

to decrease the amount of constituents entering the waste stream. A 

vessel might not produce all of these discharges, but a vessel owner or 

operator is responsible for meeting the applicable effluent limits and 

complying with all the effluent limits for every listed discharge that 

the vessel produces.

    To obtain authorization, the owner or operator of a vessel that is 

either 300 or more gross registered tons or has the capacity to hold or 

discharge more than 8 cubic meters (2113 gallons) of ballast water is 

required to submit a Notice of Intent (NOI) to receive permit coverage, 

beginning six months after the permit's issuance date, but no later 

than nine months after the permit's issuance date. Owners or operators 

of vessels that meet the applicable eligibility requirements for permit 

coverage but are not required to submit an NOI, including vessels less 

than 300 gross registered tons with no more than 8 cubic meters of 

ballast water capacity are automatically authorized by the permit to 

discharge according to the permit requirements.

    The 2008 VGP requires owners or operators of vessels to conduct 

routine self-inspections and monitoring of all areas of the vessel that 

the permit addresses. The routine self-inspections are required to be 

documented in the ship's logbook. Analytical monitoring of certain 

discharges is required for certain types of vessels. The VGP also 

requires owners or operators of vessels to conduct comprehensive annual 

vessel inspections, to ensure even the hard-to-reach areas of the 

vessel are inspected for permit compliance. If the vessel is placed in 

dry dock while covered under the permit, a dry dock inspection and 

report is required to be completed. Additional monitoring requirements 

are imposed on owners or operators of certain classes of vessels, based 

on their unique characteristics.

    For additional information on the 2008 VGP, please go to 

www.epa.gov/npdes or see Docket ID. No. EPA-HQ-OW-2008-0055 at 

www.regulations.gov.

 

C. National Research Council and Science Advisory Board Ballast Water 

Studies

 

    As part of its strategy for improving the Agency's understanding of 

ballast water discharges, EPA, in partnership with the United States 

Coast Guard, commissioned two ballast water studies from highly 

respected, independent scientific entities. EPA commissioned these 

studies in order to produce the best possible scientific compendium of 

ballast water information relevant to the development of today's VGP. 

EPA commissioned these studies to help inform the Agency's decisions 

about what effluent limits to set for ballast water discharges.

    The first study was led by the National Research Council (which 

functions under the auspices of the National Academy of Sciences (NAS), 

the National Academy of Engineering, and the Institute of Medicine) and 

addressed how to assess risk to water quality associated with ballast 

water discharges (NAS, 2011). For a copy of the NAS report, please go 

to: http://www.nap.edu/catalog.php?record_id=13184. The second study 

was led by EPA's autonomous Science Advisory Board (SAB) and evaluated 

the status of ballast water treatment technologies. For a copy of the 

SAB report, please see: http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr--activites/BW%20discharge!OpenDocument&TableRow=2.3#2.

 

III. Scope and Applicability of the 2013 VGP

 

A. CWA Section 401 Certification and Coastal Zone Management Act

 

    EPA may not issue a permit authorizing discharges into the waters 

of a State until that State has granted certification under CWA section 

401 or has waived its right to certify (or been deemed to have waived). 

33 U.S.C. 1341(a)(1); 40 CFR 124.53(a). EPA gave each State, Tribe, and 

Territory as applicable over 9 months to certify, well over the 60 day 

regulatory norm for NPDES permits. EPA found that this 401 

certification had unusual circumstances which warranted additional time 

(e.g., the permits regulate discharges of mobile point sources; they 

have broad applicability to the waters of every State and Tribe in the 

country). If a State believed that any permit condition(s) more 

stringent than those contained in the draft permits were necessary to 

meet the applicable requirements of either the CWA or State law, the 

State had an opportunity to include those condition(s) in its 

certification. 40 CFR 124.53(e)(1). A number of States provided such 

conditions in their certifications, and EPA has added them to the VGP 

pursuant to CWA section 401(d). 33 U.S.C. 1341(d).

    Similarly, EPA may not authorize discharges under a general permit 

into waters of a State if the State objects with EPA's National 

Consistency Determination, pursuant to the regulations implementing of 

the Coastal Zone Management Act (``CZMA''), specifically the 

regulations at 15 CFR 930.31(d) and 930.36(e). If the State coastal 

zone management agency objects to the general permit, then the general 

permit is not available for use by potential general permit users in 

that State unless the applicant who wants to use the general permit 

provides the State agency with the applicant's consistency 

determination and the State agency concurs. 15 CFR 930.31(d). NOAA has 

explained that ``a State objection to a consistency determination for 

the issuance of a general permit would alter the form of CZMA 

compliance required, transforming the general permit into a series of 

case by case CZMA decisions and requiring an individual who wants to 

use the general permit to submit an individual consistency 

certification to the State agency in compliance with 15 CFR part 930.'' 

71 FR 788, 793.

 

B. Geographic Coverage of VGP

 

    The permit is applicable to discharges incidental to the normal 

operation of a vessel (identified in Part 1.2 of the VGP and section 

3.5 of the VGP fact sheet) into waters subject to this permit, which 

means ``waters of the U.S.'' as defined in 40 CFR 122.2, except as 

otherwise excluded by Part 6 of the permit. This includes the 

territorial seas, defined in section 502(8) of the CWA, extending to 

three miles from the baseline. Pacific Legal Foundation v. Costle, 586 

F.2d 650, 655-656 (9th Cir. 1978); Natural Resources Defense Council, 

Inc. v. U.S. EPA, 863 F.2d 1420, 1435 (9th Cir. 1988).

    The general permit will cover vessel discharges into the waters of 

the U.S. in all states and territories, regardless of whether a state 

is authorized to implement other aspects of the NPDES permit program 

within its jurisdiction, except as otherwise excluded by Part 6 of the 

VGP. While, pursuant to CWA section 402(c), EPA typically is required 

to suspend permit issuance in authorized states, EPA may issue NPDES 

permits in authorized states for discharges incidental to the normal 

operation of a vessel because section 402(c)(1) of the Clean Water Act 

prohibits EPA from issuing permits in authorized states only for 

``those discharges subject to [the state's authorized] program.'' 

Discharges formerly excluded under 40 CFR 122.3 are not ``subject to'' 

authorized state programs. The vessel discharges that will be covered 

by the permit are discharges formerly excluded from NPDES permitting 

programs under 40 CFR 122.3. (See discussion of the vacatur of this 

exclusion above.) Therefore the discharges at issue are not

considered a part of any currently authorized state NPDES program. See 

40 CFR 123.1(i)(2) (where state programs have a greater scope of 

coverage than ``required'' under the federal program, that additional 

coverage is not part of the authorized program) and 40 CFR 123.1(g)(1) 

(authorized state programs are not required to prohibit point source 

discharges exempted under 40 CFR122.3).

 

C. Categories of Vessels Covered Under VGP

 

    The VGP applies to owners and operators of non-recreational vessels 

that are 79 feet (24.08 meters) and greater in length. The types of 

vessels covered under the VGP include cruise ships, ferries, barges, 

mobile offshore drilling units, oil tankers or petroleum tankers, bulk 

carriers, cargo ships, container ships, other cargo freighters, 

refrigerant ships, research vessels, emergency response vessels, 

including firefighting and police vessels, and any other vessels 

operating in a capacity as a means of transportation. Vessels of the 

Armed Forces of the United States are not eligible for coverage by this 

permit. The discharges eligible for coverage under this permit are 

those covered by the former exclusion in 40 CFR 122.3(a) prior to its 

vacatur.

 

D. Summary of VGP and Significant Changes from the Proposed VGP

 

1. Ballast Water

    Today's final permit contains numeric technology-based effluent 

limitations that are applicable to vessels with ballast water tanks and 

over time will largely replace the non-numeric effluent limitations 

(BMPs) for ballast water in the 2008 VGP. These limitations will 

achieve significant reductions in the number of living organisms 

discharged via ballast water into waters subject to this permit. 

Ballast water discharges are widely recognized as one of the primary 

sources (or vectors) for the spread of aquatic invasive species, also 

known as aquatic nuisance species (ANS). When species in ballast tanks 

are transported between waterbodies and discharged, they have potential 

for establishing new, non-indigenous populations that can cause severe 

economic and ecological impacts. EPA has expressed the numeric effluent 

limit for ballast water discharges as numbers of living organisms per 

cubic meter of ballast water (i.e. as a maximum acceptable 

concentration) because reducing the concentration of living organisms 

will reduce inoculum densities of potential invasive species discharged 

in a vessel's ballast water, i.e., thereby reducing the risk posed by 

the discharge. Today's permit also contains maximum discharge 

limitations for certain biocides and residuals to limit the impact of 

these pollutants to waters subject to this permit. The final permit 

also allows most vessels which meet the treatment requirements to no 

longer perform ballast water exchange. Under the VGP, vessel owner/

operators subject to the concentration-based numeric discharge 

limitations are able to meet these limits in one of four ways: treat 

ballast water to meet the applicable numeric limits of the VGP prior to 

discharge; transfer the ship's ballast water to a third party for 

treatment at an NPDES permitted facility; use treated municipal/potable 

water as ballast water; or not discharge ballast water. As in the 2008 

VGP, vessels enrolled in, and meeting the requirements of the U.S. 

Coast Guard's Shipboard Technology Evaluation Program (STEP) would be 

deemed to be in compliance with the numeric limitations.

    As in the 2008 VGP, EPA has included certain mandatory practices 

for all vessels. These requirements are consistent with EPA's Science 

Advisory Board's recommendations to reduce risks at multiple points in 

the ballast's operations (See EPA SAB 2011, available at http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr--activites/

6FFF1BFB6F4E09FD852578CB006E0149/$File/EPA-SAB-11-009-unsigned.pdf). 

Some of the mandatory practices for all vessels equipped with ballast 

water tanks that operate in waters of the U.S are to: avoid the 

discharge of ballast water into waters subject to this permit that are 

within or that may directly affect marine sanctuaries, marine 

preserves, marine parks, shellfish beds, or coral reefs; minimize or 

avoid uptake of ballast water in the listed areas and situations; clean 

ballast tanks regularly to remove sediments in mid-ocean or under 

controlled arrangements in port, or at drydock; when feasible and safe, 

vessels must use ballast water pumps instead of gravity draining to 

empty your ballast water tanks (to remove larger living organisms); and 

minimize the discharge of ballast water essential for vessel operations 

while in the waters subject to this permit. EPA estimated the cost and 

burden of the ballast water requirements in its economic analysis for 

the permit.

    EPA has determined that Best Available Technology Economically 

Achievable (BAT) over time will be a function of a vessel's 

construction date, size, and class. The VGP imposes several best 

management practices (BMPs) for vessels until they are required to meet 

the numeric ballast water limits that EPA has found to be available, 

practicable and economically achievable. These interim requirements are 

substantially similar to those in the 2008 VGP. One of the interim 

management measures is that all vessels which operate outside of the 

Exclusive Economic Zone (EEZ) that are equipped to carry ballast water 

and enter the Great Lakes via the Saint Lawrence Seaway System must 

conduct ballast water exchange or saltwater flushing (as applicable) of 

ballast water tanks 200 nautical miles from any shore before entering 

either the U.S. or Canadian waters of the Seaway System.

    For certain existing vessels, EPA proposed a staggered 

implementation schedule to require the vessel to meet the numeric 

effluent limitations by the first drydocking after January 1, 2014 or 

January 1, 2016 depending on vessel size, which may extend beyond the 

permit term for certain vessels. EPA has finalized this schedule. 

However, EPA has adjusted the date in the final VGP defining ``new 

build'' vessels--which are vessels that are subject to numeric limits 

immediately upon the effective date of today's permit--from those 

vessels that are newly constructed after January 1, 2012 to those that 

are newly constructed after December 1, 2013. EPA notes that this time 

schedule is consistent with the timelines set forth in the U.S. Coast 

Guard's March 2012 final ballast water discharge standard rulemaking.

    In today's permit, the numeric concentration-based treatment limits 

for ballast water discharges do not apply to some vessels, such as 

inland and certain seagoing vessels less than 1600 gross registered 

tons; vessels operating exclusively within a limited area on short 

voyages; unmanned, unpowered barges; and vessels built before January 

1, 2009 that operate exclusively in the Laurentian Great Lakes 

(referred to as ``Lakers''). The draft VGP would have required any 

vessel (not otherwise exempt) with greater than 8 cubic meters of 

ballast water capacity to meet the numeric ballast effluent limitations 

for ballast water. In response to comments questioning the availability 

of systems for these vessels, EPA reconsidered the issue and concluded 

that though technologies are promising for future development, numeric 

ballast water treatment limits for inland and seagoing vessels less 

than 1600 gross registered tons do not represent BAT at this time or 

over the life of the permit. Among other things, most ballast water 

treatment systems have been designed for larger vessels and/or vessels 

which only uptake or discharge ballast water on either end of longer 

voyages.

     With respect to Lakers that are not subject to the numeric limits 

found in Part 2.2.3.5 of the VGP, EPA has expanded the definition of 

Lakers to include vessels that operate exclusively in the Laurentian 

Great Lakes (i.e., existing vessels that operate upstream of the waters 

of the St. Lawrence River west of a rhumb line drawn from Cap de 

Rosiers to West Point, Anticosti Island, and west of a line along 63 W. 

longitude from Anticosti Island to the north shore of the St. Lawrence 

River). After considering public comment, EPA has determined that 

effluent limits based on ballast water treatment do not reflect BAT for 

existing vessels operating exclusively in the Laurentian Great Lakes at 

this time. Today's VGP includes three management measures specific to 

Lakers which EPA believes reflect BAT, and represent common sense 

approaches to managing ballast water discharges for vessels when they 

have not installed ballast water treatment systems.

    Additionally, as proposed, the final VGP requires vessels entering 

the Great Lakes utilizing a ballast water treatment system to conduct 

ballast water exchange or saltwater flushing (as applicable) in 

addition to meeting the numeric limits for ballast water once they 

apply: (1) The vessel operates outside the Exclusive Economic Zone 

(EEZ) and more than 200 nm from any shore and then enters the Great 

Lakes, and (2) the vessel has taken on ballast water that has a 

salinity of less than 18 ppt from a coastal, estuarine, or freshwater 

ecosystem within the previous month. If a vessel meeting the 

description in (1) has not taken on ballast water with a salinity of 

less than 18 ppt in the previous month, the master of the vessel would 

be required to certify to this effect as part of the ballast water 

recordkeeping requirements before entering the Great Lakes. EPA 

believes that such a requirement significantly reduces the risk of new 

invasions from vessels entering the Great Lakes, but the Agency, for 

reasons pertaining to the efficacy of the requirement in other aquatic 

environments, has not extended it to other U.S. waters. Please see 

section 4.4.3.9 of the VGP Fact Sheet for discussion.

2. Non-Ballast Water

    Compared to the 2008 VGP, today's VGP imposes more prescriptive 

technology-based effluent limits in the form of Best Management 

Practices for discharges of oil to sea interfaces. The VGP requires 

that all powered vessels must use ``environmentally acceptable 

lubricants'' in their oil-to-sea interfaces unless it is technically 

infeasible to do so. Based on public comment received on the proposal, 

EPA clarified that, by using the reference to ``technically 

infeasible,'' EPA intends to refer to situations when: no EAL products 

are approved for use in a given application that meet manufacturer 

specifications for that equipment; users of products that are pre-

lubricated (e.g., wire ropes) have no available alternatives 

manufactured with EALs; products meeting a manufacturers specifications 

are not available within any port in which the vessel calls; or changes 

to use an EAL must wait until the vessel's next drydocking. EPA expects 

that it will be technically feasible for a significant portion of 

vessel operators to use EALs, particularly for newly built vessels, 

during this permit term. These requirements will reduce the toxicity of 

thousands of gallons or more of oil leaked into U.S. waters every year.

    In addition, EPA clarified that, even though the final permit 

requires that wire ropes or cables and other equipment must be 

thoroughly wiped down to remove excess lubricant before being placed 

into service and after periodic lubrication, wipe downs to remove 

excess lubricant are not required if doing so is deemed unsafe by the 

Master of the vessel.

    Additionally, in the event that the permitting moratorium for 

commercial fishing vessels is not extended past December 18, 2014, 

today's permit will be available to authorize the discharge of fish 

hold effluent and will establish appropriate Best Management Practices 

for this discharge type after that date. Among other things, the 

proposed VGP contained a provision prohibiting the discard of unused 

bait overboard. In response to comments, the final VGP limits the scope 

this prohibition and clarifies that it applies only to unused live 

bait. Moreover, the prohibition does not apply to the unused live bait 

that is discharged into the same waterbody or watershed from which it 

was caught. The adjusted prohibition render it easy to implement and 

consistent with typical management practices regarding the use of live 

bait, while at the same time significantly reducing the risk of new 

invasive species (including fish pathogens) introductions attributable 

to the release of unused bait.

    EPA has also included numeric limits for exhaust gas scrubber 

effluent that are generally consistent with those established by 

International Maritime Organization guidelines for this discharge type. 

Today's permit includes a revised discharge standard from washwater 

from the exhaust gas scrubber treatment system for pH. EPA believes the 

revised limit is both technically feasible and will ensure the 

discharge does not pose an unacceptable risk to receiving water. The 

proposed pH limit of no less than 6.5 was modified to better align with 

the IMO guidelines, and therefore, the final VGP requires that the 

discharge washwater must have a pH of no less than 6.0 measured at the 

ship's overboard discharge. See discussion in section 4.4.26 of the VGP 

Fact Sheet for additional discussion.

    The VGP contains monitoring requirements for certain larger vessels 

for ballast water, bilgewater, graywater, and/or exhaust gas scrubber 

effluent if they discharge into waters subject to the permit. EPA has 

included these monitoring requirements to assure treatment systems are 

performing as required (when applicable) and to generate additional 

information for EPA's future analyses. Based on public comments 

received on the proposed VGP, EPA has adjusted the frequency of 

monitoring for some or all parameters for each discharge type and/or 

applicability thresholds for vessels which must conduct monitoring. 

These revisions in the final VGP have generally resulted in a reduced 

burden for the regulated industry relative to the proposed VGP. EPA 

estimated the cost and burden of these requirements in its economic 

analysis for the permit. EPA had taken comment on more stringent 5 ppm 

bilgewater oil and grease discharge limits for new build vessels in the 

VGP; based upon further analysis, EPA decided to retain the 15 ppm 

limit in the final permit but plans to work with our international 

partners at the IMO to explore the issue further.

    The final VGP requires new build vessels greater than 400 gross 

tons which discharge bilgewater into waters subject to this permit to 

annually collect a sample of the bilgewater effluent for analysis of 

oil using specified methods to demonstrate treatment equipment 

maintenance and compliance with this permit and record the reading on 

the oil content meter. If the vessel has a type-approved oil discharge 

monitoring system including an overboard discharge control unit that 

prevents bilgewater discharges above 5 ppm and has two consecutive 

years' worth of analytical monitoring results that are below 5 ppm for 

oil and grease during the permit term, a vessel may cease conducting 

the annual analytical bilgewater monitoring for the rest of the permit 

term.

3. Administrative Improvements

    EPA has made several efficiency improvements, including clarifying 

that

 

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electronic recordkeeping is allowed under the permit, eliminating 

duplicative reporting, and allowing consolidated reporting for certain 

vessels.

    Under today's final VGP, permittees not required to submit a NOI 

are required to complete and keep a Permit Authorization and Record of 

Inspection (PARI) Form onboard their vessel at all times. The final VGP 

contains the PARI form requirement because the Agency believes it is an 

efficient way for the owner/operator to certify that they have read and 

agreed to comply with the terms of the permit, and demonstrate basic 

understanding of the permit's terms and conditions. In addition, the 

form will provide EPA (or its authorized representative) with a 

standardized foundation for conducting inspections. Under the final 

VGP, EPA has consolidated the one-time report and annual noncompliance 

report into one annual report. As discussed in the fact sheet for 

today's permit, EPA found that the 2008 VGP reporting requirements 

resulted in confusion among some permittees. EPA believes that having a 

single annual report that permittees must file, which can include all 

of the permittee's analytical monitoring results (as applicable) for 

the previous year, will reduce this confusion and result in better 

information for the Agency. Additionally, while the proposed VGP 

allowed operators of unmanned, unpowered barges to complete combined 

annual reports if they meet certain criteria, the final VGP expands the 

ability for certain vessels (unmanned unpowered barges and vessels 

under 300 gross tons) to submit a combined annual report, if they meet 

specified criteria, to maximize efficiency and reduce the burden on a 

significant portion of the regulated universe. Many of these vessels 

are fundamentally similar and have a limited number of discharges. 

Vessels less than 300 gross tons, as a class, tend to produce lower 

volumes of effluent than their larger ocean going counterparts. Hence, 

EPA has broadened the applicability of this provision in order to 

provide an efficient way to gather information by the agency without 

sacrificing data quality.

 

IV. Analysis of Economic Impacts of VGP

 

    EPA performed an economic analysis for the VGP to evaluate the 

incremental costs of requirements in the permit. This analysis is 

available in the docket for today's permit. A summary of the analysis 

follows.

 

A. Analysis of VGP costs

 

    EPA estimates that approximately 60,000 domestic flag and 12,400 

foreign flag vessels would be covered under the VGP, but only a subset 

of these vessels would incur incremental costs as a result of the 

revised VGP requirements. To estimate the effect of revised permit 

requirements on an industry as a whole, EPA's VGP analysis takes into 

account previous conditions and determines how the industry would act 

in the future in the absence of revised permit requirements. The 

baseline for this analysis is full industry compliance with existing 

federal and state regulations, including the 2008 VGP in the case of 

vessels currently covered by that permit; and current industry 

practices or standards that exceed current regulations to the extent 

that they can be empirically observed. In addition, a number of laws 

and associated regulations (including the National Invasive Species 

Act; the Act to Prevent Pollution from Ships; the Comprehensive 

Environmental Response, Compensation, and Liability Act; the Organotin 

Anti-fouling Paint Control Act; and others) already cover certain 

discharges that would be subject to the new permitting regime. The 

overlap between revised permit requirements and existing regulations 

and practices is discussed at greater length in the economic analysis.

    EPA estimated incremental compliance costs to commercial vessels 

associated with revised permit's practices and discharge categories 

identified and the paperwork burden costs. Incremental costs are 

understood to result from the inclusion of all commercial fishing 

vessels 79 feet or larger under the VGP. As noted above, the moratorium 

on coverage for commercial fishing vessels and vessels less than 79 

feet expires on December 18, 2014. Commercial fishing vessels 79 feet 

or larger will be covered by the VGP, and most non-recreational vessels 

less than 79 feet, including commercial fishing vessels, are expected 

to be covered by the sVGP. Changes in compliance costs also result from 

streamlining selected requirements, which is expected to reduce 

compliance costs for owners of certain vessels. Overall, EPA finds that 

revisions in the VGP requirements could result in aggregate annual 

incremental costs for domestic vessels ranging between $7.2 and $23.0 

million (in 2010$). This includes the paperwork burden costs and the 

sum of all practices for applicable discharge categories for all 

vessels estimated to be covered by the revised VGP. EPA notes that the 

total national cost estimate may be overly conservative (i.e. an 

overestimate of costs attributable to the permit) due to the inclusion 

of costs associated with commercial fishing vessels. The total annual 

compliance costs resulting from the 2013 VGP is reduced by $627,635 to 

$2,296,526 for the first year of permit coverage year as these vessels 

are not required to obtain NPDES coverage until at least December 18, 

2014.

    The average per vessel compliance costs range between $51 and 

$7,004 per vessel. There is considerable uncertainty in the assumptions 

used for several practices and discharge categories and these estimates 

therefore provide illustrative ranges of the costs potentially 

associated with the 2013 VGP rather than incremental costs incurred by 

any given vessel owner. Tank ships have the highest average compliance 

costs; this is driven by potential incremental costs for oil tankers 

exclusively engaged in coastwise trade that may install and operate 

onboard ballast water treatment systems to meet the 2013 VGP 

requirements applicable to ballast water discharges.

    To evaluate economic impacts of revised VGP requirements on the 

water transportation, fishing, and mining industries, EPA performed a 

firm-level analysis. The firm-level analysis examines the impact of any 

incremental cost per vessel to comply with the revised VGP requirements 

on model firms that represent the financial conditions of ``typical'' 

businesses in each of the examined industry sectors. More than ninety 

percent of the firms in the water transportation and fishing 

industries, and in the drilling oil and gas wells segment of the mining 

industry, are small, and EPA believes it is unlikely that firm-level 

impacts would be significant among large firms in this industry. 

Therefore, a firm-level analysis focuses on assessment of impacts on 

small businesses. To evaluate the potential impact of the final VGP on 

small entities, EPA used a cost-to-revenue test to evaluate the 

potential severity of economic impact on vessels and facilities owned 

by small entities. The test calculates annualized pre-tax compliance 

cost as a percentage of total revenues and uses a threshold of 1 and 3 

percent to identify facilities that would be significantly impacted as 

a result of this Permit.

    EPA applied a cost-to-revenue test which calculates annualized pre-

tax compliance cost as a percentage of total revenues and used a 

threshold of 1 and 3% to identify entities that would be significantly 

impacted as a result of this Permit. The total number of entities

 

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expected to exceed a 1% cost-to-revenue threshold ranges from 76 under 

low cost assumptions to 340 under high cost assumptions. Of this 

universe, the total number of entities expected to exceed a 3% cost-to-

revenue threshold ranges from 5 under low cost assumptions to 30 under 

high cost assumptions. This is based out of 5,480 total small firms. 

Accordingly, EPA concludes that the VGP will not have a significant 

economic impact on a substantial number of small entities or other 

businesses.

 

B. Benefits of the VGP

 

    Although EPA was unable to evaluate the expected benefits of the 

permit in dollar terms due to data limitations, the Agency collected 

and considered relevant information to enable qualitative consideration 

of ecological benefits and to assess the importance of the ecological 

gains from the revisions. EPA expects that reductions in vessel 

discharges will benefit society in two broad categories: (1) Enhanced 

water quality from reduced pollutant discharges and (2) reduced risk of 

invasive species introduction and dispersal. With some of the most 

damaging invasive species having cost the U.S. economy upwards of 1 

billion dollars each, the environmental and economic benefits of 

stopping and slowing new invasions introductions and dispersal are 

significant.

    Because many of the nation's busiest ports are considered to be 

impaired by a variety of pollutants found in vessel discharges, 

reducing pollutant loadings from these discharges is expected to have 

benefits associated with the reduction of concentrations of nutrients, 

metals, oil, grease, and toxics in waters with high levels of vessel 

traffic.

 

 

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