On October 18, 2023, the EPA published a Supplemental Notice of Proposed Rulemaking (“SNPR”) regarding incidental discharges from vessels, proposing national performance standards under the Vessel Incidental Discharge Act (“VIDA”). The VIDA, enacted in December 2018, will standardize incidental discharge permits and regulations, replacing the 2013 Vessel General Permit (“VGP”) that commercial vessels are currently required to follow. The SNPR presents new data on ballast water management systems and solicits public comments on the standards and definitions applicable to ballast tanks, hulls and associated niche areas, and graywater systems. The SNPR responds to comments to the EPA’s proposed VIDA standards in its initial Notice of Proposed Rulemaking from three years ago, bringing VIDA one step closer to full implementation.

The VIDA tasks the EPA with developing national standards of performance for discharges incidental to the normal operation of primarily commercial vessels that are over seventy-nine feet in length. It also requires the U.S. Coast Guard (“USCG”) to develop corresponding regulations to enforce compliance with the EPA’s standards. On October 26, 2020, the EPA proposed a set of discharge standards for twenty different types of incidental discharges from vessel equipment and systems. These standards aim to minimize the discharge of pollutants such as aquatic nuisance species, bacteria or pathogens, and oil and grease into the waters of the United States and the contiguous zone.

Although the deadline for doing so was December 4, 2020, these standards have not yet been finalized or implemented. When the deadline passed, environmental groups sued the EPA alleging that the EPA’s delay violated the Clean Water Act. In September 2023, the parties entered into a Consent Decree that requires the EPA to take final action by September 23, 2024. The USCG will then have two years to develop and finalize corresponding regulations. The EPA is currently soliciting comments on the SNPR’s proposals concerning ballast tanks, hulls and associated niche areas, and graywater systems, as follows:

Ballast Tanks: Most of the SNPR is devoted to ballast water and its associated standards and plans for vessels and their equipment. The proposed standards are similar to the current VGP requirements with certain notable differences.

• The SNPR first solicits comments on the EPA’s decision not to propose stricter ballast water discharge standards than those promulgated by the International Maritime Organization and the USCG. The SNPR presents new data gathered by the USCG and the EPA’s analysis of that data, concluding that a “no detectable organisms” standard is unworkable. The SNPR also concludes that under the EPA’s analysis, a stricter ballast water discharge standard would not be the “Best Available Technology Economically Achievable,” or “BAT.”
• Next, the SNPR proposes requiring vessel operators to identify best management practices, or “BMPs,” as part of their ballast water management plans. While the EPA’s 2020 proposed regulations had removed this requirement, it is already a requirement in the VGP and the USCG regulations. The SNPR explains that the “EPA does not expect that this option would result in a change to the compliance costs estimated in the Regulatory Impact Analysis accompanying the proposed rule.”
• The SNPR also proposes new equipment standards for “Lakers,” which are vessels that operate exclusively on the Great Lakes. The VGP requires Lakers built after January 1, 2009, or “New Lakers,” to meet its numeric ballast water discharge standard. In the EPA’s 2020 proposed regulations, Lakers are subcategorized and completely exempted from the VGP’s numeric standard but required to implement certain BMPs. In response to comments received, the SNPR proposes that all Lakers be subject to an equipment standard rather than a numeric discharge standard. The SNPR clarifies the definition of “New Laker” and proposes that New Lakers install and operate USCG-approved ballast water management systems.

Hulls and Associated Niche Areas: The SNPR proposes a more standardized approach to biofouling, which it describes as “the accumulation of aquatic organisms such as microorganisms, plants, and animals on surfaces and structures in or exposed to the aquatic environment.” The EPA predicts that the SNPR’s proposed options will not significantly change existing compliance costs. Currently, the VGP addresses some seawater piping biofouling chemicals, and it includes certain state-specific biofouling requirements.

• The SNPR defines new terms related to biofouling, including “passive discharge of biofouling,” “active discharge of biofouling,” “anti-fouling coating,” “anti-fouling system,” “microfouling,” and “macrofouling,” and eliminates vague terms such as “frequent,” “gentle,” “minimal,” “local in origin,” and “plume or cloud of paint.”
• In particular, the SNPR distinguishes between the “passive” and “active” discharge of biofouling, stating that “[p]assive discharge of biofouling means the discharge of biofouling from a vessel (for example, sloughing) during a period in which the vessel is not undergoing active cleaning activities.” The VGP draws no distinction between the two, so the SNPR seeks to clarify that passive discharge is also within VIDA’s ambit.
• The 2020 proposed regulations did not detail the differences between in-water cleaning without capture and in-water cleaning with capture. Based on feedback the EPA received, the SNPR proposes: “(a) prohibiting any discharge from in-water cleaning of macrofouling without capture; and (b) establishing discharge requirements for in-water cleaning of microfouling of vessel hulls and associated niche areas.”
• The SNPR also proposes different procedures for managing hulls and associated niche areas to minimize macrofouling, which is “biofouling caused by the attachment and subsequent growth of visible plants and animals on structures and vessels immersed in or exposed to water.”

Graywater Systems: In the 2020 proposed regulations, the EPA suggested that all vessels over 400 GT be subject to the VGP’s graywater numeric discharge standard. In response to comments received, the SNPR proposes exempting vessels that have a maximum overnight capacity of fewer than fifteen persons because these vessels generate less graywater. Graywater is defined as “water drained or collected from showers, baths, sinks, and laundry facilities.”

• The proposed standards largely mirror the current discharge limits in the USCG regulations and the VGP. However, the VIDA standards will be more consistent than the individual state requirements found in the VGP for certain discharges.

Comments on the SNPR are due by December 18, 2023. The full text of the SNPR can be found here: https://www.govinfo.gov/content/pkg/FR-2023-10-18/pdf/2023-22879.pdf.

If you have further questions regarding this topic, contact Liskow attorneys Nicolette Kraska, Emily von Qualen, or Clare Bienvenu.

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