EPA Finalizes New Vessel Discharge Standards to Replace Vessel General Permit

Originally published in the November 2024 issue of Bench & Bar of Minnesota Environmental Law Update, Minnesota State Bar Association.

On October 9, 2024, the U.S. Environmental Protection Agency (EPA) published a final rule under the 2018 Vessel Incidental Discharge Act (VIDA) governing the release of pollution to U.S. waters incident to the operation of ships, including unique requirements applicable to Great Lakers freighters. Vessel Incidental Discharge National Standards of Performance, 89 Fed. Reg. 82074 (Oct. 9, 2024). Common sources of pollution from the normal operation of ships includes deck runoff, bilge water, water from cooling and fire systems, and gray water. An additional key concern is the transport of aquatic invasive species in ballast water, which ships take on (and discharge) in many different locations. These discharges have been subject to a patchwork of federal and state regulations, including the 2013 National Pollutant Discharge Elimination System (NPDES) Vessel General Permit (VGP), US. Coast Guard (USCG) regulations, and the Minnesota Pollution Control Agency (MPCA) 2018 ballast water general permit, among others. Congress passed VIDA to help harmonize and consolidate these disparate requirements. The resulting law, 33 U.S.C. § 1322(p), requires EPA to establish technology-based standards of performance for marine pollution control devices; it also requires the Coast Guard to promulgate regulations to address the incidental discharge of pollutants from vessels. Notably, the VIDA excludes incidental discharges from vessels of the Armed Forces, recreational vessels, vessels less than 79-feet long, vessels moored to a pier, and fishing vessels (except for discharges of ballast water).  EPA estimates its new performance standards will apply to approximately 85,000 international and domestic vessels operating in U.S. waters.

The EPA’s new rule establishes both general and specific vessel discharge standards. The general standards apply to all vessels and include requirements relating to general vessel operation and maintenance, biofouling management, and oil management. See 40 CFR 139.4–139.6. These standards are based on the implementation of best management practices to minimize discharges of pollutants from the covered vessels.

The specific standards set effluent limits and other requirements for discharges associated with specific types of equipment and systems, including but not limited to ballast tanks, bilges, boilers, chain lockers, decks, fire protection equipment, graywater systems, pools and spas, and air refrigeration systems. For example, the rule requires that discharges of water from bilges (i.e., water and residue that accumulates in a lower compartment of a vessel's hull below the waterline): (1) must not contain any flocculants or other additives (subject to limited exceptions) and, (2) for vessels of 400 GT and above, (a) must occur when the vessel is underway and occur at least 1 nautical mile from shore where feasible, and (b) must not have an oil content that exceeds 15 parts per million. See 40 CFR 139.11. Similarly, discharges of ballast water must meet many requirements, including numeric biological parameters designed to minimize invasive species. See 40 CFR 139.10.

Relevant to certain Minnesota vessels, EPA’s rule establishes some unique requirements for “Lakers,” which the rule defines as any vessel 3,000 GT and above that operates exclusively in the Great Lakes and a delineated area of the St. Lawrence River. For example, due to unique properties of Great Lakes water (e.g., low salinity and high suspended solids that can clog filters), EPA has exempted Lakers from all numeric discharge standards for ballast water. However, the rules mandate that newly built Lakers must install and operate a USCG-approved ballast water management system (BWMS), such as ultraviolet treatment or chemical addition. (Existing Lakers are not required to retrofit with a BWMS.)

While the rule promulgating the new vessel performance standards is effective as of November 8, 2024, the performance standards themselves will not be in effect until the USCG promulgates regulations implementing the standards. Under 33 U.S.C. § 1322(p)(5), the USCG must promulgate the regulations within two years of EPA’s issuance of the standards, i.e., by October 2026. In the interim, EPA’s VGP will remain in place—although the VGP and certain related USCG, state and local regulations governing vessel discharges will automatically be repealed once the new EPA standards become effective.