On September 20, 2024, the Environmental Protection Agency (“EPA”) signed a highly anticipated final rule establishing national standards for incidental discharges from vessels into waters of the United States, albeit nearly four years after its statutory deadline. However, existing requirements included in the 2013 Vessel General Permit (“VGP”) will remain in place until these new EPA and forthcoming U.S. Coast Guard regulations under Clean Water Act section 312(p) are final, effective, and enforceable. The U.S. Coast Guard has two years to issue its final rule implementing EPA’s standards.

Background

In December 2018, the Vessel Incidental Discharge Act (“VIDA”) was signed into law to replace the 2013 Vessel General Permit (“VGP”) and bring uniformity to the regulation of incidental discharges from vessels. VIDA established Clean Water Act section 312(p), Uniform National Standards for Discharges Incidental to Normal Operations of Vessels, which directed the EPA to develop federal standards of incidental discharges from vessels, including performance for marine pollution control devices.

On October 26, 2020, the EPA proposed a set of discharge standards for 20 different types of incidental vessel discharges. Comments for those standards closed on November 25, 2020. EPA missed the December 4, 2020, deadline to finalize it but subsequently published a Supplemental Notice of Proposed Rulemaking (“SNPR”) on October 18, 2023, that addressed three limited areas—ballast water, hulls and associated niche areas, and graywater. Because the EPA did not timely finalize the rule, environmental groups sued alleging that EPA’s delay violated the Clean Water Act. In September 2023, the parties entered into a Consent Decree that required EPA to take final action by September 23, 2024. The signing of this rule occurred three days before the deadline detailed in the Consent Decree.

The New Standards

The similarities and differences between the requirements in the new discharge standards of performance and the requirements in the VGP can be sorted into three distinct groups.

• Substantially the Same. The thirteen discharge standards that are substantially the same as the VGP requirements include standards for: 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. These standards encompass the intent and stringency of the VGP but include other changes to conform to the requirements of VIDA (e.g., extent of regulated waters, increased consistency, minor clarifications, enforceability, and legal protections).

   

• Lightly Modified. The two discharge standards that are modified from the VGP to moderately increase stringency or provide language clarifications include the standards for bilges and desalination and purification systems.

   

• Most Significant Modifications.The five discharge standards that contain the most significant modifications from the VGP include: ballast tanks, exhaust gas emission control systems, graywater systems, hulls and associated niche areas, and seawater piping. The final rule also modifies VGP requirements for chain lockers, decks, hulls and associated niche areas, pools and spas, and seawater piping as they apply to federally protected waters.

The new rule establishes requirements for vessels operating in certain bodies of water with a goal of preventing or reducing discharge pollutants into waterbodies that contain unique ecosystems. It also contains specific procedural requirements for states to petition EPA to establish different discharge standards, issue emergency orders, or establish complete prohibition of one or more discharges into specified state waters.

Conclusion

The final rule will be published in the Federal Register, but the pre-publication version, signed by the EPA Administrator Michael S. Regan, is located on EPA’s website at pre-publication-vida-final-rule.pdf. Once the rule is published, the U.S. Coast Guard will have two years to develop corresponding implementation, compliance, and enforcement regulations for those standards, including any requirements governing the design, construction, testing, approval, installation, and use of devices necessary to achieve the EPA standards.