EPA to Cruise Ships, Cargo Ships, Barges, Tankers, Tugs and Tows: Take Notice

As detailed through previous Holland & Knight alerts and blogs detailing the Notice of Proposed Rule Making and Consent Decree that postponed completion of the Vessel Incident Discharge (VID) final rule until fall 2024, the U.S. Environmental Protection Agency (EPA) has now issued a final rule (VID Rule) that establishes federal standards for marine pollution control devices for discharges incidental to the normal operation of non-armed forces and nonrecreational vessels 79 feet in length and above. The effective date of the final rule is Nov. 8, 2024, but the standards of performance must be set by the EPA Secretary under Section 312(p)(5) of the Clean Water Act (CWA) before they are enforceable.

Scope and Applicability

The VID Rule applies to incidental discharges from vessels 79 feet in length and above, excluding vessels of the armed forces, recreational vessels and floating craft permanently moored to a pier. Small vessels (less than 79 feet) and fishing vessels are exempt, except for ballast water discharges. Affected vessels may include commercial fishing vessels (for ballast water only), passenger vessels (e.g., cruise ships and ferries), barges, tugs and tows, offshore supply vessels, mobile offshore drilling units, tankers, bulk carriers, cargo ships, container ships and research vessels.

Regulated Pollutants

The VID Rule targets pollutants such as aquatic nuisance species (ANS), which may outcompete native species, damage habitats and alter the chemical and physical aquatic environment, nutrients that may cause eutrophication, bacteria or pathogens (e.g., Escherichia coli and fecal coliform), oil and grease – including lubricating oils, hydraulic oils, and vegetable or organic oils, metals – as well as other toxic, nonconventional and conventional pollutants.

These pollutants may be discharged in and from a variety of vessels systems, equipment and activities, including:

• ballast water
• sediment from ballast tanks
• vessel hulls and appendages
• seawater piping
• chain lockers
• anchor chains
• runoff from deck cleaning, graywater and bilgewater
• exhaust gas emission control systems and fire-main systems
• vessel coatings

Standards of Performance

The new standards are outlined under CWA Section 312(p), titled "Uniform National Standards for Discharges Incidental to Normal Operation of Vessels" (33 U.S.C. 1322(p)). The standards are technology-based, similar to those set by the Clean Water Act (CWA).

Effective Date and Transition

The VID Rule will take effect 30 days after its publication in the Federal Register. However, the federal standards of performance will become effective only once the regulations set by the EPA Secretary under CWA Section 312(p)(5) are finalized and enforceable. At that point, the existing Vessel General Permit (VGP) requirements will be repealed. However, the U.S. Coast Guard (USCG) has two years from the EPA's publication of the VID Rule to develop corresponding regulations regarding the implementation, compliance and enforcement of the final standards of performance. Therefore, vessels are still subject to existing discharge requirements for the time being.

Implementation and Enforcement

The EPA sets the discharge standards, while the USCG will enforce them through inspections and monitoring. The VID Rule will be made effective and enforceable through USCG regulations that address how to implement and comply with the rule.

The USCG's implementation regulations may include requirements governing the design, construction, testing, approval, installation and use of devices to achieve the EPA standards of performance. The VID Rule does not involve technical standards, but rather the USCG will provide these.

Vessels will be subject to regular inspections to ensure compliance with the VID Rule, with penalties for noncompliance including fines and other enforcement actions. Inspections may involve checking discharge records, sampling discharges and verifying the use of required technologies. The severity of the penalties will depend on the nature and extent of the violations.

Additionally, if states desire to protect certain waters from discharges, they must provide detailed information about the proposed waters and affected vessel population that would be unable to discharge in those waters. Each state would need to identify facilities at which safe and sanitary removal of discharge incidental to the normal operation of the vessel could take place, including the location and operational capabilities of each facility. This information will be used in determining compliance and enforcing the VID Rule.

Discharge Standards and the Onus on the Maritime Industry

The VID Rule provides general and specific discharge standards that will cover approximately 85,000 international and domestic vessels. The general standards include General Operation and Maintenance, Biofouling Management and Oil Management, among others.

General Standards

General Operation and Maintenance standards will require vessel operators to minimize discharges through proper storage, transfer of materials and reduced production of discharge to the extent achievable using "technologically available and economically practicable measures," which need to be documented in shipboard logs and plans. Discharges must take place while underway and as far from shore as possible.

The Biofouling Management requirements obligate vessel operators to develop and follow a biofouling management plan, including specific cleaning protocols for hulls and niche area. In-water cleaning of biofouling is restricted. The VID Rule mandates annual inspections and drydock reports to ensure biofouling organisms are managed effectively.

Oil Management requirements, or requirements for the discharge of spent oil no longer used by the vessel, include requiring vessel operators to implement control and response measures to prevent, minimize and contain spills during fueling, maintenance and other operations. The VID Rule mandates use of environmentally acceptable lubricants (EALs) for oil-to-sea interfaces unless technically infeasible. The intent is to minimize lubricant discharges and ensure compliance with applicable regulations to prevent oil pollution.

Specific Standards

The VID Rule provides for specific standards to target 20 distinct pieces of equipment and systems. Specific equipment and systems regulated include ballast tanks, bilges, boilers, cathodic protection, chain lockers, decks, desalination systems, elevator pits, exhaust gas emission control systems, fire protection equipment, gas turbines, graywater systems, hulls, inert gas systems, motor gasoline systems, non-oily machinery, pools and spas, refrigeration and air conditioning, seawater piping and sonar domes.

VID Rule Comparison to Vessel General Permit (VGP) Requirements Under the CWA

The final discharge standards of performance are at least as stringent as the VGP, with some exceptions. The VID Rule separates the similarities and differences between the requirements in the final discharge standards of performances and requirements in the VGP into three groups.

First Group. The 13 discharge standards (e.g., boilers, decks, sonar domes) align closely with the VGP¹ but include adjustments for requirements of the Vessel Incidental Discharge Act (VIDA), such as regulated waters' extent, consistency, enforceability and legal precision.

Second Group. Two standards (bilges, desalination systems) are slightly modified from the VGP to increase stringency or clarify language with respect to bilges and desalination and purification systems.

Third Group. Five standards (ballast tanks, exhaust gas systems, graywater systems, hulls, seawater piping) have significant changes from the VGP. These modifications focus on ballast tanks, exhaust gas emission control systems, graywater systems, hulls and associated niche areas, and seawater piping. Additionally, VGP requirements for federally protected waters are slightly modified for five discharges (chain lockers, decks, hulls, pools, seawater piping) to meet VIDA requirements and new information.

There will also be additional discharge requirements for vessels operating in the Great Lakes, Pacific Region and federally protected waters.

Conclusion

Vessel owners and operators should prepare to comply with these new standards and ensure their operations meet the required performance criteria. Particular attention should be paid to the USCG's news regarding the standards. However, given that the focus is going to be on ballast tanks, exhaust gas emission control systems, graywater systems, hulls and associated niche areas, and seawater piping, vessel owners and operators should look to how they can ensure their operation of this equipment and these systems are using the best technology available to avoid discharges of the pollutants regulated by the VID Rule.

For more information or questions, please contact the authors.

Notes

¹ Specifically, they are substantially the same with respect to boilers, cathodic protection, chain lockers, decks, elevator pits, fire protection equipment, gas turbines, inert gas systems, motor gasoline and compensating systems, non-oily machinery, pools and spas, refrigeration and air conditioning, and sonar domes.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.