Four years after the original date, in the fall of 2024, the US Environmental Protection Agency has stated that new federal discharge regulations for vessels will be issued. To guarantee compliance with the extended Vessel General Permit system, the agency appears to have stepped up its inspection and enforcement activities in the meantime. It also issues a warning that non-compliance may result in severe penalties, and fines.
Timeline for regulations
In December 2018, the Vessel General Permit (VGP) system was set to be replaced by the Vessel Incidental Discharge Act (VIDA), which aims to simplify the disparate federal, state, and local regulations that affect commercial vessels. VIDA granted the US Coast Guard (USCG) an additional two years to produce rules and best management practices to carry out and enforce the new national discharge limits for vessel after the Environmental Protection Agency (EPA) had been given two years to prepare them.
Additionally, VIDA stipulates that the permit cannot be changed while the 2013 VGP’s requirements are in effect and that they will remain in effect until the USCG and EPA issue their final regulations, regardless of how long that takes.
A definitive rule on new discharge standards has not yet been promulgated, despite the EPA issuing a notice of proposed rulemaking in October 2020. This indicates that a comprehensive replacement plan for the VGP is still some distance off. A recent announcement on the EPA website implies that a final rule on the discharge standards may be released in the autumn of 2024. Therefore, the current 2013 VGP system will continue to be in effect until 2026 if the USCG takes the entire two years to finalize the corresponding enforcement guidelines.
Is the EPA stepping up its efforts to enforce the VGP?
It is not an indication of laxity or lack of commitment on the part of the EPA that new federal discharge rules are being implemented slowly in the US. Conversely, it appears that the agency has stepped up its enforcement and inspection activities to make sure that the enlarged VGP plan is being followed, and it has issued a warning that non-compliance may result in heavy fines.
The EPA recently informed a USCG member that three of its vessels had not complied with the VGP scheme’s inspection and reporting criteria. According to the EPA, to keep their permits, the specified vessels needed to file their yearly reports, document non-compliances, and take corrective action. Although the outcome for our member in this specific case is yet unknown, we are aware that substantial financial penalties have recently been imposed for comparable VGP scheme infractions.
For example, the EPA declared in November 2021 that it had fined two commercial ships a total of USD 81,474 for violating the VGP inspection, monitoring, and reporting requirements. Between 2016 and 2019, a container ship was fined USD 66,474 for neglecting to do regular visual inspections and turn in annual reports on time. Similar fines of USD 15,000 were assessed to a bulk carrier for neglecting to carry out the necessary biological monitoring of samples collected during the discharge, as well as monthly functionality monitoring and annual calibration of the ballast water treatment system before discharging ballast water into VGP waters.
According to the EPA, vessels that violate their discharge permits can have a major negative environmental impact on US waterways. They also state that since self-inspection and reporting are essential to VGP compliance, these kinds of violations are viewed as a threat to the program and are handled with extreme caution.
Essential processes for VGP compliance
Ship’s P&I insurance does not cover fines for breaking rules such as the VGP program. We do, however, use this chance to alert ship operators to what appears to be a change in the way the EPA is enforcing the VGP requirements: more frequent and thorough investigations, as well as heavier fines for non-compliance.
It is consequently recommended that vessel operators who trade with the United States assess and address any vulnerabilities in their VGP compliance systems. Unlike the typical port state control regimes, where an inspector visits the ship to verify regulatory compliance, the VGP scheme requires ship operators and masters to self-assess and self-report.
It is crucial that workers can easily follow the procedures that must be provided onboard for carrying out the mandatory routine and yearly inspections, as well as for finishing the necessary monitoring and sampling.
Procedures for onboarding must also emphasize how crucial it is to record instances of non-compliance and the corrective measures that are implemented. Ship operators will essentially double their non-compliance status if they fail to disclose a non-compliance.
There is the original instance of non-compliance with the regulations, and there is also the non-reporting of that non-compliance.
Remember that by February 28 of the subsequent year, annual reports, including monitoring data, for a particular calendar year must be filed to the EPA.
Commercial vessel discharge standards in the US – connecting the dots
The basic structure for regulating discharges of pollutants into US waters is set out in the Clean Water Act (CWA) of 1972. The CWA makes it unlawful to discharge any pollutant from a point source into US waters unless a permit is obtained. The definition of point sources also includes vessels and other floating crafts from which pollutants are or may be discharged.
The different discharges are controlled under the EPA National Pollutant Discharge Elimination System (NPDES) permit program. NPDES permits contain limits on what you can discharge, monitoring and reporting requirements, and other provisions to ensure that the discharge does not harm water quality or people’s health.
The Vessel General Permit (VGP) has since 2008 provided NPDES permit coverage nationwide for discharges incidental to the normal operation of commercial vessels more than 79 feet in length. The current version of the permit, the 2013 VGP, was originally set to expire in 2018 – but then came VIDA.
The Vessel Incidental Discharge Act (VIDA) amends the CWA and restructures how the EPA and the USCG regulate incidental discharges from commercial vessels into US waters. Specifically, VIDA gives the EPA responsibility for establishing standards for the discharge of pollutants from vessels and the USCG responsibility for prescribing, administering, and enforcing the standards.
While this has become a lengthy formal regulatory process that may not be completed until 2026, the following interim requirements continue to apply until the regulations are finalized:
- For large commercial vessels (≥ 79 feet in length), except fishing vessels: The existing vessel discharge requirements established through the 2013 VGP and the USCG ballast water regulations, and any applicable state and local government requirements.
- For small vessels (<79 feet in length) and fishing vessels of any size: The existing discharge requirements for ballast water are only established through the 2013 VGP and the USCG ballast water regulations, and any applicable state and local government requirements.
Required actions
Ship Managers with vessels covered under the 2013 VGP are required to submit the annual report by February 29th, 2024 (for activities conducted from January 1st, 2023 till December 31st, 2023).
