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.