The Looming sVGP Deadline

Photo: Alexander Maksimenko

By Steve Candito

The sVGP and recent ballast water treatment system
approvals create another headache for small vessel owners. Steve
Candito provides a primer.

The long delayed Small Vessel General Permit (sVGP) legislation
is scheduled to come into force on December 18, 2017. Despite
some confusion and inconsistencies on this issue generally, there
is currently no serious effort to delay the sVGP requirement.
Thus, vessel owners should be preparing now for compliance.
Although the deadline is still months away, the complacency that
permeates the Vessel General Permit (VGP) issue, the related
ballast water management requirements and the proposed Vessel
Incidental Discharge Act (VIDA) can easily distract vessel owners
from taking timely action.

Those owners that remain vigilant will be able to comply with
non-ballast water sVGP requirements without significant
difficulty, but those owners that do not act judiciously and rely
on the passage of VIDA to alleviate this "headache" may find
themselves scrambling to avoid vessel delays and potentially
fines and other penalties.

The Long Reach of EPA

The Environmental Protection Agency (EPA) first issued the VGP
requirement back in 2008 and subsequently reissued it in 2013.
The VGP provides for National Pollutant Discharge Elimination
System (NPDES) permit coverage for incidental discharges into
waters of the US from commercial (non-military and
non-recreational) vessels greater than 79 feet in length and for
ballast water from commercial vessels of all sizes. The EPA
estimates that approximately 61,000 domestically flagged
commercial vessels and approximately 8,000 foreign flagged
vessels require VGP coverage for such incidental discharges.

For commercial vessels of 79 feet or less, the EPA's sVGP program
applies. The EPA issued the sVGP regulations on September 10,
2014. The initial sVGP program was to be effective for five years
between December 19, 2014 and December 18, 2019. Similar to VGP,
the sVGP program authorizes discharges incidental to the normal
operation of commercial vessels less than 79 feet, including
commercial fishing vessels. However, the Howard Coble Coast Guard
and Maritime Transportation Act of 2014 (Senate bill S.2444, P.L.
113-281), which was enacted after issuance of the 2014 sVGP
requirement, included an exemption for all incidental discharges
from these "small" vessels, with the exception of ballast water,
from having to obtain a Clean Water Act (CWA) sVGP until December
18, 2017.

The 2014 Maritime Transportation Act also exempted commercial
fishing vessels of all sizes from having to obtain NPDES permits
for those incidental discharges, except ballast water, until
December 18, 2017. As a result, until December 18, 2017, sVGP
requirements only apply to discharges of ballast water from
commercial vessels less than 79 feet, including all commercial
fishing vessels. Given this long delay, and similar delays with
the additional Ballast Water Treatment (BWT) requirements, many
vessel owners deferred taking action on sVGP compliance. Now,
with US Coast Guard (USCG) approval of three different BWT
systems and uncertainty with the proposed VIDA solution, delaying
compliance with the sVGP's December 18, 2017 deadline is no
longer an option.

Apples & Oranges

It is important to note that the VGP and sVGP requirements are
very different. The EPA recognizes that small commercial vessels
are substantially different in how they operate than their larger
counterparts, and as such, the sVGP is much shorter and simpler
than the VGP. The sVGP specifies best management practices for
several broad discharge management categories including fuel
management, engine and oil control, solid and liquid waste
maintenance, graywater management, fish hold effluent management,
and ballast water management.

Vessel discharges eligible for coverage under the sVGP are not
subject to specific numeric limits, but still must be minimized
or eliminated to the extent achievable using control measures
including Best Management Practices (BMP) that are
technologically available and economically practical and
achievable in light of best marine practice. Generally,
constituents must not be added to any discharge that is not
incidental to the normal operations of a vessel. The term
"minimize" is defined by EPA to mean reduce and/or eliminate to
the extent achievable using control measures including best
management practices that are technologically available and
economically practicable and achievable in light of best marine
practice. Thus, unlike the ballast water regulations, where until
recently there were no technologically approved systems, the sVGP
does not require owners to use technology that is not readily
available or economically practical.

Unlike the VGP, and of significant benefit to small vessel
owners, the sVGP does not contain Notice of Intent (NOI) or
Annual Report requirements, but quarterly inspections are
required to be conducted and recorded on the Permit Authorization
and Record of Inspection (PARI) Form. More specifically, there is
no exemption for inland workboats and the new SubChapter M
regulations do not directly impact the VGP or sVGP requirements.
Accordingly, if inland work boats, towing vessels, ferries, etc.
are over 79', they should be complying with VGP now and if they
are under 79' will have to comply with sVGP requirements as of
December 18, 2017.

BWT and VGP Collide

Although SubChapter M does not have direct bearing on the sVGP
requirements, the Coast Guard's recent approval of three
different BWT systems does have a significant impact since all
vessels must comply with the BWT regulations. These BWT approvals
now make compliance with the VGP / sVGP possible for ballast
discharges. Up until now, the EPA has not enforced the BWT
aspects of the VGP/sVGP because there were no approved systems.
Interestingly, this anomaly in the regulations has not been
challenged legally, even though the BWT standard itself was the
focus of a US Second Circuit legal challenge that was decided in
2015. As a result of that legal decision, the EPA was required to
reconsider their use of the USCG standard, which some
environmental groups alleged was insufficient.

That 'reconsideration' process is still ongoing at the EPA, but
most stakeholders don't expect the Coast Guard standard to be
changed. Rather, it is likely the EPA will simply explain their
decision to use the USCG standard including that a more stringent
standard is not practical given current technology. Further, this
tactic will also allow the EPA to align their ongoing review so
it dovetails with the revisit of the Coast Guard standards in
2018.

VIDA in the Wings?

In the meantime, and because of the phase in of the BWT
regulations, there will be several years where vessels must
comply with all aspects of VGP/sVGP other than BWT and the EPA
will likely overlook this BWT non-compliance, something which is
not a very comfortable situation for vessel owners. A potential
solution has been in the works for a long time, but has still not
been passed. The proposed VIDA legislation attempts to unify and
simplify both the regulatory and compliance aspects of vessel
discharges by creating one federal standard for both the Coast
Guard and EPA, while also preempting any similar State
regulations. Currently, those regulatory duties are divided among
many jurisdictions including the States, the Coast Guard and of
course, the EPA.

Predictably, VIDA has wide support among vessel owners, labor
unions, ports and terminals. Unfortunately, even with this
support, it has not made it through Congress yet. Beyond the
operational aspects of VIDA, legal uniformity is one of the basic
tenets of the law generally and specifically admiralty law so
VIDA certainly makes good sense from both a legal and operational
perspective. Moreover, the 2015 Second Circuit decision mentioned
above heightens the need for Congressional action on VIDA.
Although many expect the EPA to simply look to the USCG standard
during their reconsideration process, there is a chance that the
EPA will go in a different direction increasing the likelihood
that new regulations will further exacerbate the misalignment of
federal standards and worsen an already untenable situation.

In light of all the above, small vessel owners can't rely on VIDA
alleviating this "headache" before the December 18, 2017 sVGP
deadline. Thus, they should be taking action now to at least
comply with the sVGP's non-ballast water requirements. Although
there may be some risk of not complying with the sVGP's ballast
water requirements as of December 18, 2017, this risk seems
reasonable, given the USCG's formal BWT waiver process.

sVGP Regulated Discharge Streams

  • Bilgewater / Oily Water Separator Effluent
  • Cathodic Protection
  • Washdown and Runoff
  • Propeller, Rudder, stern tube Oil-to-Sea Interfaces
  • Chain Locker Effluent
  • Anti-fouling hull coatings
  • Motor Gasoline and Compensating Discharge
  • Elevator Pit Effluent
  • Boiler/Economizer Blowdown
  • Refrigeration and Air Condensate Discharge
  • Firemain Systems
  • Gas Turbine Wash Water
  • Exhaust Gas Scrubber Washwater Discharge
  • Freshwater Layup
  • Non-Oily Machinery Wastewater
  • Seawater Cooling Overboard Discharge
  • Welldeck Discharges
  • Underwater Ship Husbandry
  • Seawater Piping Biofouling Prevention
  • Ballast Water
  • Small Boat Engine Wet Exhaust
  • Aqueous Film Forming Foams (AFFF)
  • Graywater
  • Sonar Dome Discharge
  • Distillation or Reverse Osmosis Brine
  • Fish Hold Effluent
  • Graywater Mixed with Sewage

The Author

Steven Candito is Founder, President and CEO of Foresea.
Foresea provides various advisory services including strategic
planning, regulatory compliance and crisis management to the
maritime and environmental communities. Prior to his current
position, Mr. Candito was President and CEO of NRC. Candito is a
graduate of Hofstra University School of Law and the United
States Merchant Marine Academy. He is also a past President of
the Spill Control Association of American (SCAA).

(As published in the February 2017 edition of
Marine News
)

Mar 1, 2017

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