Mariners Get Ready: Vessel Incident Discharge Act Changes May Increase Obligations
According to the Spring 2021 Unified Agenda, the U.S. Environmental Protection Agency (EPA) expects to promulgate its new Vessel Incidental Discharge National Standards of Performance any time now (originally expected by the end of 2021). By way of background, in December 2018, the Vessel Incident Discharge Act (VIDA) was signed into law via subsection (p) to Section 312 of the Clean Water Act (CWA). Under the CWA, the EPA and U.S. Coast Guard (USCG) regulate incidental discharges from vessels, including commercial vessels. Incidental discharges, which include ballast water, are any releases that occur when a vessel is in the normal course of its operations. Ballast water discharges can negatively impact the environment by inserting invasive species into the aquatic environment. The purpose of the law is to address the ecological effects of vessel discharges. Prior to VIDA, vessels were required to follow the 2013 Vessel General Permit (VGP) requirements. Currently, vessels are expected to self-monitor, inspect and report their incidental discharges. However, vessels can acquire discharge exemptions and may not have or yet be required to install treatment systems. That all may be changing.
On Oct. 26, 2020, the EPA published a Notice of Proposed Rulemaking, which, if adopted, would establish national standards of performance for incidental discharges of non-military and non-recreational vessels, 79 feet in length and longer, in the waters of the United States. The aim of these standards is to reduce discharge of pollutants and invasive species in the aquatic environment. The proposed standard modifies the VGP requirements by including discharges from bilges and desalination and purification systems as well as changing the standards of discharges from ballast tanks, exhaust gas emission control systems, graywater systems, hulls and associated niche areas, and seawater piping. For example, vessels would now be subject to mandatory water exchange and flushing requirements.
The procedural requirements of vessels under the proposed rule would change as well. The proposed rule, if enacted, would establish no-discharge zones, change the discharge standards in the Great Lakes and other water bodies, and issue emergency orders. A number of public hearings were held as part of the EPA's stakeholder process, and the EPA published an informational summary. Links to the recorded public hearings are available on the EPA's website.
While the proposed rule is not final, the rule portends and showcases the joint position of the EPA and USCG that vessel discharges are being taken more seriously, regulation and enforcement are going to increase, and commercial vessels will need to pay close attention to how the new VIDA rule will impact their operations.
For instance, as recently as Nov. 15, 2021, the EPA reportedly fined two commercial vessels – the container ship MSC Aurora and the Western Durban bulk carrier – for violations of their VGPs following on-site visual inspections. The MSC Aurora had not conducted inspections for 11 trips nor submitted annual reports to the EPA on time for several years. Consequently, the Mediterranean Shipping Company was ordered to pay $66,474. Similarly, due to a failure to perform monthly functionality monitoring, an annual calibration of the ballast water treatment system prior to its discharge into the Port of New Orleans and a post discharge biological monitoring, the Western Durban must pay penalties of $15,000.
Whether these EPA and USCG enforcement actions are a sign of what is to come once the proposed rule is adopted remains to be seen, but it certainly provides a "heads-up" to commercial vessel owners and operators that standards are changing and will likely be stricter, and the enforcement of them will be a priority, promising hefty finds for failure to comply.