On October 9, 2024, the Environmental Protection Agency (“EPA”) published the final rule, Vessel Incidental Discharge National Standards of Performance (“VID-NSP”), establishing national performance standards under the Vessel Incidental Discharge Act (“VIDA”). See 89 Fed. Reg. 82074 (Oct. 9, 2024) (see our previous blog post detailing some of the rule’s history and substance, which the final rule substantially implements). Once made effective and enforceable through corresponding United States Coast Guard (“USCG”) regulations addressing implementation, compliance, and enforcement, the VID-NSP rule will control the discharge of pollutants into waters of the United States and waters of the contiguous zone from non-recreational, non-Armed Forces vessels 79 feet in length and above, as well as ballast water only from fishing vessels of any size and non-recreational, non-Armed Forces vessels less than 79 feet in length. Additionally, the VID-NSP rule, once effective and enforceable, will repeal certain existing vessel discharge requirements, including those set forth in the 2013 Vessel General Permit (“VGP”).
The VID-NSP rule establishes both general and specific discharge standards of performance. The general discharge standards apply to all covered vessels and incidental discharges and require best management practices (“BMPs”) to minimize the introduction of pollutants from discharges. The general discharge standards are organized into three categories: General Operation and Maintenance, Biofouling Management, and Oil Management. The specific discharge standards establish requirements for incidental discharges from 20 distinct vessel pieces of equipment and systems.
Overall, the VID-NSP rule’s discharge standards are generally at least as stringent as the VGP, but the rule does not incorporate the VGP requirements verbatim. Rather, the rule changes some of the VGP requirements “to transition the permit requirements into regulations that reflect national-technology-based standards of performance, to improve clarity, enhance enforceability and implementation, and incorporate new information and technology.” The similarities and differences between the VID-NSP rule’s requirements and the VGP requirements can be sorted into three distinct groups.
- First Group: 13 discharge standards that are substantially the same as the requirements of the VGP: 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.
- Second Group: Two discharge standards that are consistent but slightly modified from the VGP to moderately increase stringency or provide language clarifications: bilges and desalination and purification systems.
- Third Group: Five discharge standards that contain the most significant modifications from the VGP: ballast tanks, exhaust gas emission control systems, graywater systems, hulls and associated niche areas, and seawater piping.
The VID-NSP rule also incorporates the heavily contested “New Laker” requirements, which were first proposed in the supplemental notice of proposed rulemaking. In particular, the VID-NSP rule requires New Lakers, or vessels built after January 1, 2009, that are 3,000 GT and above and operate exclusively on the Great Lakes, to install, maintain, and operate USCG-approved ballast water management systems. Previously, New Lakers were subcategorized and completely exempted from the VGP’s numeric standard but required to implement certain BMPs.
The USCG has two years from EPA’s publication of the VID-NSP rule to develop corresponding regulations regarding the implementation, compliance, and enforcement of the final standards of performance. Thus, vessels remain subject to existing discharge requirements included in the VGP, as well as any other applicable federal, state, or local authorities, until the USCG regulations are final, effective, and enforceable.
In the meantime, it would be prudent for owners and operators of vessels subject to the new standards to examine their compliance status with the changes and plan for the transition once the USCG implements the standards through its own regulations.
For further questions regarding this topic, contact Liskow attorneys Greg Johnson, Clare Bienvenu, Emily von Qualen, Nicolette Kraska and Colin North and visit our Environmental Regulatory practice page.
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