Final National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges Incidental to the Normal Operation of a Vessel, 21938-21945 [2013-08662]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 78, Number 71 (Friday, April 12, 2013)]
[Notices]
[Pages 21938-21945]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-08662]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2011-0141; FRL-9733-7]


Final National Pollutant Discharge Elimination System (NPDES) 
General Permit for Discharges Incidental to the Normal Operation of a 
Vessel

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final permit issuance.

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SUMMARY: EPA Regions 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 are finalizing 
the NPDES Vessel General Permit (VGP) to authorize discharges 
incidental to the normal operation of non-military and non-recreational 
vessels greater than or equal to 79 feet in length. This VGP, which has 
an effective date of December 19, 2013, will replace the current VGP, 
which was issued in December 2008 and expires on December 19, 2013. EPA 
provided notice of the availability of the draft permit and 
accompanying fact sheet for public comment in the Federal Register on 
December 8, 2011. At that time, EPA also provided notice of

[[Page 21939]]

availability of the draft small Vessel General Permit, on which the 
Agency has not yet taken final action.

DATES: This permit is effective on December 19, 2013.
    In accordance with 40 CFR part 23, this permit shall be considered 
issued for the purpose of judicial review on the day 2 weeks after 
Federal Register publication. Under section 509(b) of the Clean Water 
Act, judicial review of this general permit can be had by filing a 
petition for review in the United States Court of Appeals within 120 
days after the permit is considered issued for purposes of judicial 
review. Under section 509(b)(2) of the Clean Water Act, the 
requirements in this permit may not be challenged later in civil or 
criminal proceedings to enforce these requirements. In addition, this 
permit may not be challenged in other agency proceedings. Deadlines for 
submittal of notices of intent are provided in Part 1.5 of the VGP. 
This permit also provides additional dates for compliance with the 
terms of this permit.

FOR FURTHER INFORMATION CONTACT: For further information on the VGP, 
contact Ryan Albert at 202-564-0763 or Juhi Saxena at 202-564-0719, or 
at EPA Headquarters, Office of Water, Office of Wastewater Management, 
Mail Code 4203M, 1200 Pennsylvania Ave. NW., Washington DC 20460; or 
email at vgp@epa.gov.

SUPPLEMENTARY INFORMATION: This supplementary information is organized 
as follows:

Table of Contents

I. General Information
    A. Does this action apply to me?
    B. How can I get copies of this document and other related 
information?
    C. Public Outreach: Public Hearings and Public Meetings, 
Webcasts
    D. Who are the EPA regional contacts for the permit?
II. Background of Permit
    A. Statutory and Regulatory History
    B. The 2008 VGP
    C. National Research Council and Science Advisory Board Ballast 
Water Studies
III. Scope and Applicability of the 2013 VGP
    A. CWA Section 401 Certification and Coastal Zone Management Act
    B. Geographic Coverage of VGP
    C. Categories of Vessels Covered Under VGP
    D. Summary of the VGP and Significant Changes from the Proposed 
VGP
IV. Analysis of Economic Impacts of VGP
V. Executive Orders 12866 and 13563

I. General Information

A. Does this action apply to me?

    This action applies to vessels operating in a capacity as a means 
of transportation that have discharges incidental to their normal 
operation into waters subject to this permit, except recreational 
vessels as defined in Clean Water Act section 502(25) and vessels of 
the Armed Forces as defined in Clean Water Act section 312(a)(14). For 
a discussion of applicability of this permit to fishing vessels greater 
than 79 feet in length and to ballast water discharges regardless of 
length, see section II.A below. Affected vessels are henceforth 
referred to as non-military, non-recreational vessels. Unless otherwise 
excluded from coverage by Part 6 of the VGP, the waters subject to this 
permit are waters of the U.S. as defined in 40 CFR 122.2. That 
provision defines ``waters of the U.S.'' as certain inland waters and 
the territorial sea, which extends three miles from the baseline. More 
specifically, CWA section 502(8) defines ``territorial seas'' as ``the 
belt of the seas measured from the line of the ordinary low water along 
that portion of the coast which is in direct contact with the open sea 
and the line marking the seaward limit of inland waters, and extending 
seaward a distance of three miles.'' Note that the Clean Water Act 
(CWA) does not require NPDES permits for vessels or other floating 
craft operating as a means of transportation beyond the territorial 
seas, i.e., in the contiguous zone or ocean as defined by the CWA 
sections 502(9), (10). See CWA section 502(12) and 40 CFR 122.2 
(definition of ``discharge of a pollutant''). This permit, therefore, 
does not apply in such waters.
    Non-military, non-recreational vessels greater than 79 feet in 
length operating in a capacity as a means of transportation that need 
NPDES coverage for their incidental discharges will generally be 
covered under the VGP.

B. How can I get copies of this document and other related information?

    1. Docket. EPA has established an official public docket for this 
action: Docket ID No. EPA-HQ-OW-2011-0141. The official public docket 
is the collection of materials for the final permit. It is available 
for public viewing at the Water Docket in the EPA Docket Center, (EPA/
DC) EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC 
20460. Although all documents in the docket are listed in an index, 
some information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Publicly available docket materials are available 
electronically through https://www.regulations.gov and in hard copy at 
the EPA Docket Center Public Reading Room, open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the Public Reading Room is (202) 566-1744 and the telephone 
number for the Water Docket is (202) 566-2426. Please note that EPA is 
in the process of uploading materials in to the docket and expects to 
be finished with that process by two weeks from the date of publication 
of this document in the Federal Register.
    2. Electronic Access. You may access this Federal Register document 
electronically at www.federalregister.gov. An electronic version of the 
public docket is available through the Federal Docket Management System 
(FDMS) found at https://www.regulations.gov. You may use the FDMS to 
view public comments, access the index listing of the contents of the 
official public docket, and to access those documents in the public 
docket that are available electronically. Once at the Web site, enter 
the appropriate Docket ID No. in the ``Search'' box to view the docket.
    Certain types of information will not be placed in the EPA dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. Although not all 
docket materials may be available electronically, you may still access 
any of the publicly available docket materials through the docket 
facility identified in this section.
    3. Response to public comments. EPA received 5,486 comments on the 
proposed VGP from the shipping industry, States, Tribes, environmental 
groups, foreign governments and the public. EPA has responded to all 
comments received and has included these responses in a separate 
document in the public docket for this permit. See the document titled 
Proposed VGP: EPA's Response to Public Comments.

C. Public Outreach: Public Hearings and Public Meetings, Webcasts

    Because EPA anticipated a significant degree of public interest in 
the draft VGP, EPA held a public hearing on Wednesday January 11, 2012 
to receive public comment and answer questions concerning the draft 
permit. The hearing was held at EPA East Room 1153, 1201 Constitution 
Ave. NW., Washington DC 20460. In addition, EPA held a public meeting 
on Monday January 23, 2012, at

[[Page 21940]]

the Ralph H. Metcalfe Federal Building, Room 331, 77 West Jackson 
Blvd., Chicago IL 60604. The purpose of those meetings was to present 
the proposed requirements of the draft VGP and the basis for those 
requirements, as well as to answer questions concerning the draft 
permit. The public meetings and public hearing were attended by a wide 
variety of stakeholders including representatives from industry, 
government agencies, and environmental organizations. In addition, EPA 
held a webcast on January 19, 2012 and two Question and Answer sessions 
on January 31 and February 7, 2012 to provide information on the 
proposed permit and to answer questions from interested parties that 
were unable to attend the public meetings or hearing.

D. Who are the EPA regional contacts for this permit?

    For EPA Region 1, contact John Nagle at US EPA, Region 1, New 
England/Office of Ecosystem Protection, 5 Post Office Square, Suite 
100, Mail Code: OEP 06-1, Boston, MA 02109-3912; or at tel.: (617) 918-
1054; or email at nagle.john@epa.gov.
    For EPA Region 2, contact Sieglinde Pylypchuk at US EPA, Region 2, 
290 Broadway, 24th Floor, New York, NY 10007-1866; or at tel.: (212) 
637-4133; or email at pylypchuk.sieglinde@epa.gov. For Puerto Rico, 
contact Sergio Bosques at tel.: (787) 977-5838; or email at 
bosques.sergio@epa.gov.
    For EPA Region 3, contact Mark Smith at US EPA, Region 3, 1650 Arch 
St., Mail Code: 3WP41, Philadelphia, PA 19103-2029, or at tel.: (215) 
814-3105; or email at smith.mark@epa.gov.
    For EPA Region 4, contact Marshall Hyatt at US EPA, Region 4 Water 
Protection Division, Atlanta Federal Center, 61 Forsyth St. SW., 
Atlanta, GA 30303-3104; or at tel.: (404) 562-9304; or email at 
hyatt.marshall@epa.gov
    For EPA Region 5, contact Sean Ramach at US EPA, Region 5, 77 W 
Jackson Blvd., Mail Code: WN16J, Chicago, IL 60604-3507; or at tel.: 
(312) 886-5284; or email at ramach.sean@epa.gov.
    For EPA Region 6, contact Jenelle Hill at U.S. EPA, Region 6, 1445 
Ross Ave., Suite 1200, Dallas, TX 75202-2733; or at tel.: (214) 665-
9737; or email at hill.jenelle@epa.gov.
    For EPA Region 7, contact Alex Owutaka at U.S. EPA Region 7, 11201 
Renner Boulevard, Lenexa, Kansas 66219; or at tel.: (913) 551-7584; or 
email at owutaka.alex@epa.gov.
    For EPA Region 8, contact Lisa Luebke at US EPA, Region 8, 1595 
Wynkoop St., Mail Code: 8P-W-WW, Denver, CO 80202-1129; or at tel.: 
(303) 312-6256; or email at luebke.lisa@epa.gov.
    For EPA Region 9, contact Eugene Bromley at US EPA, Region 9, 75 
Hawthorne St., San Francisco, CA 94105-3901; or at tel.: (415) 972-
3510; or email at bromley.eugene@epa.gov.
    For EPA Region 10, contact Cindi Godsey at US EPA, Region 10, 222 W 
7th Ave., Box 19, Anchorage, AK 99513; or at tel.: (907) 271-6561; or 
email at godsey.cindi@epa.gov.

II. Background of Permit

A. Statutory and Regulatory History

    The Clean Water Act (CWA) section 301(a) provides that ``the 
discharge of any pollutant by any person shall be unlawful'' unless the 
discharge is in compliance with certain other sections of the Act. 33 
U.S.C. 1311(a). The CWA defines ``discharge of a pollutant'' as ``(A) 
any addition of any pollutant to navigable waters from any point 
source, (B) any addition of any pollutant to the waters of the 
contiguous zone or the ocean from any point source other than a vessel 
or other floating craft.'' 33 U.S.C. 1362(12). A ``point source'' is a 
``discernible, confined and discrete conveyance'' and includes a 
``vessel or other floating craft.'' 33 U.S.C. 1362(14).
    The term ``pollutant'' includes, among other things, ``garbage * * 
* chemical wastes * * * and industrial, municipal, and agricultural 
waste discharged into water.'' The Act's definition of ``pollutant'' 
specifically excludes ``sewage from vessels or a discharge incidental 
to the normal operation of a vessel of the Armed Forces'' within the 
meaning of CWA section 312. 33 U.S.C. 1362(6).
    One way a person may discharge a pollutant without violating the 
CWA section 301 prohibition is by obtaining authorization to discharge 
(referred to herein as ``coverage'') under a CWA section 402 National 
Pollutant Discharge Elimination System (NPDES) permit (33 U.S.C. 1342). 
Under CWA section 402(a), EPA may ``issue a permit for the discharge of 
any pollutant, or combination of pollutants, notwithstanding section 
1311(a)'' upon certain conditions required by the Act.
    EPA issued the original VGP in response to a District Court ruling 
which vacated a longstanding regulatory exemption for discharges 
incidental to the normal operation of vessels at 40 CFR 122.3(a). 
Northwest Envtl. Advocates et al. v. United States EPA, 2006 U.S. Dist. 
LEXIS 69476 (N.D. Cal. 2006). EPA developed the VGP to regulate 
incidental discharges from vessels operating in a capacity as a means 
of transportation. That permit was issued on December 18, 2008, with an 
effective date of December 19, 2008. 73 FR79,473 (Dec. 29, 2008). 
Subsequently, the U.S. District Court for the Northern District of 
California issued an order providing that ``the exemption for 
discharges incidental to the normal operation of a vessel, contained in 
40 CFR 122.3(a), is vacated as of February 6, 2009.'' Northwest 
Environmental Advocates et al. v. United States EPA, No. C 03-05760-SI 
(December 17, 2008). Therefore, the date when the regulated community 
was required to comply with the VGP was February 6, 2009.
    On July 31, 2008 Congress enacted Public Law 110-299, which 
generally prohibited NPDES permitting for discharges incidental to the 
normal operation of commercial fishing vessels (regardless of size) and 
those other non-recreational vessels less than 79 feet in length for 
two years from enactment. This moratorium was subsequently extended to 
December 18, 2013, by Public Law 111-215. On December 20, 2012, 
President Obama signed the Coast Guard and Maritime Transportation Act 
of 2012, which extends the expiration date of the moratorium from 
December 18, 2013 to December 18, 2014. Sec.  703 of Public Law 112-
213. That moratorium does not include ballast water discharges. 
Therefore, commercial fishing vessels that are greater than 79 feet and 
do not have ballast water discharges will, barring further legislative 
action, not be required to seek coverage under the VGP until the 
moratorium expires on December 18, 2014. That moratorium also does not 
apply to other incidental discharges, which on a case-by-case basis, 
EPA or the State, as appropriate, determines contribute to a violation 
of water quality standards or pose an unacceptable risk to human health 
or the environment.
    The original legislation called for EPA to study the relevant 
discharges and submit a report to Congress. EPA finalized this Report 
to Congress, entitled ``Study of Discharges Incidental to Normal 
Operation of Commercial Fishing Vessels and Other Non-Recreational 
Vessels Less Than 79 Feet'' in August 2010, and it can be viewed at: 
https://cfpub.epa.gov/npdes/vessels/background.cfm.

B. The 2008 VGP

    The 2008 VGP addresses 26 potential vessel discharge streams by 
establishing effluent limits, including Best Management Practices 
(BMPs), to control the discharges of waste streams and constituents 
found in those waste

[[Page 21941]]

streams. For these discharges, the permit establishes effluent limits 
pertaining to the constituents found in the effluent and BMPs designed 
to decrease the amount of constituents entering the waste stream. A 
vessel might not produce all of these discharges, but a vessel owner or 
operator is responsible for meeting the applicable effluent limits and 
complying with all the effluent limits for every listed discharge that 
the vessel produces.
    To obtain authorization, the owner or operator of a vessel that is 
either 300 or more gross registered tons or has the capacity to hold or 
discharge more than 8 cubic meters (2113 gallons) of ballast water is 
required to submit a Notice of Intent (NOI) to receive permit coverage, 
beginning six months after the permit's issuance date, but no later 
than nine months after the permit's issuance date. Owners or operators 
of vessels that meet the applicable eligibility requirements for permit 
coverage but are not required to submit an NOI, including vessels less 
than 300 gross registered tons with no more than 8 cubic meters of 
ballast water capacity are automatically authorized by the permit to 
discharge according to the permit requirements.
    The 2008 VGP requires owners or operators of vessels to conduct 
routine self-inspections and monitoring of all areas of the vessel that 
the permit addresses. The routine self-inspections are required to be 
documented in the ship's logbook. Analytical monitoring of certain 
discharges is required for certain types of vessels. The VGP also 
requires owners or operators of vessels to conduct comprehensive annual 
vessel inspections, to ensure even the hard-to-reach areas of the 
vessel are inspected for permit compliance. If the vessel is placed in 
dry dock while covered under the permit, a dry dock inspection and 
report is required to be completed. Additional monitoring requirements 
are imposed on owners or operators of certain classes of vessels, based 
on their unique characteristics.
    For additional information on the 2008 VGP, please go to 
www.epa.gov/npdes or see Docket ID. No. EPA-HQ-OW-2008-0055 at 
www.regulations.gov.

C. National Research Council and Science Advisory Board Ballast Water 
Studies

    As part of its strategy for improving the Agency's understanding of 
ballast water discharges, EPA, in partnership with the United States 
Coast Guard, commissioned two ballast water studies from highly 
respected, independent scientific entities. EPA commissioned these 
studies in order to produce the best possible scientific compendium of 
ballast water information relevant to the development of today's VGP. 
EPA commissioned these studies to help inform the Agency's decisions 
about what effluent limits to set for ballast water discharges.
    The first study was led by the National Research Council (which 
functions under the auspices of the National Academy of Sciences (NAS), 
the National Academy of Engineering, and the Institute of Medicine) and 
addressed how to assess risk to water quality associated with ballast 
water discharges (NAS, 2011). For a copy of the NAS report, please go 
to: https://www.nap.edu/catalog.php?record_id=13184. The second study 
was led by EPA's autonomous Science Advisory Board (SAB) and evaluated 
the status of ballast water treatment technologies. For a copy of the 
SAB report, please see: https://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr--activites/BW%20discharge!OpenDocument&TableRow=2.3#2.

III. Scope and Applicability of the 2013 VGP

A. CWA Section 401 Certification and Coastal Zone Management Act

    EPA may not issue a permit authorizing discharges into the waters 
of a State until that State has granted certification under CWA section 
401 or has waived its right to certify (or been deemed to have waived). 
33 U.S.C. 1341(a)(1); 40 CFR 124.53(a). EPA gave each State, Tribe, and 
Territory as applicable over 9 months to certify, well over the 60 day 
regulatory norm for NPDES permits. EPA found that this 401 
certification had unusual circumstances which warranted additional time 
(e.g., the permits regulate discharges of mobile point sources; they 
have broad applicability to the waters of every State and Tribe in the 
country). If a State believed that any permit condition(s) more 
stringent than those contained in the draft permits were necessary to 
meet the applicable requirements of either the CWA or State law, the 
State had an opportunity to include those condition(s) in its 
certification. 40 CFR 124.53(e)(1). A number of States provided such 
conditions in their certifications, and EPA has added them to the VGP 
pursuant to CWA section 401(d). 33 U.S.C. 1341(d).
    Similarly, EPA may not authorize discharges under a general permit 
into waters of a State if the State objects with EPA's National 
Consistency Determination, pursuant to the regulations implementing of 
the Coastal Zone Management Act (``CZMA''), specifically the 
regulations at 15 CFR 930.31(d) and 930.36(e). If the State coastal 
zone management agency objects to the general permit, then the general 
permit is not available for use by potential general permit users in 
that State unless the applicant who wants to use the general permit 
provides the State agency with the applicant's consistency 
determination and the State agency concurs. 15 CFR 930.31(d). NOAA has 
explained that ``a State objection to a consistency determination for 
the issuance of a general permit would alter the form of CZMA 
compliance required, transforming the general permit into a series of 
case by case CZMA decisions and requiring an individual who wants to 
use the general permit to submit an individual consistency 
certification to the State agency in compliance with 15 CFR part 930.'' 
71 FR 788, 793.

B. Geographic Coverage of VGP

    The permit is applicable to discharges incidental to the normal 
operation of a vessel (identified in Part 1.2 of the VGP and section 
3.5 of the VGP fact sheet) into waters subject to this permit, which 
means ``waters of the U.S.'' as defined in 40 CFR 122.2, except as 
otherwise excluded by Part 6 of the permit. This includes the 
territorial seas, defined in section 502(8) of the CWA, extending to 
three miles from the baseline. Pacific Legal Foundation v. Costle, 586 
F.2d 650, 655-656 (9th Cir. 1978); Natural Resources Defense Council, 
Inc. v. U.S. EPA, 863 F.2d 1420, 1435 (9th Cir. 1988).
    The general permit will cover vessel discharges into the waters of 
the U.S. in all states and territories, regardless of whether a state 
is authorized to implement other aspects of the NPDES permit program 
within its jurisdiction, except as otherwise excluded by Part 6 of the 
VGP. While, pursuant to CWA section 402(c), EPA typically is required 
to suspend permit issuance in authorized states, EPA may issue NPDES 
permits in authorized states for discharges incidental to the normal 
operation of a vessel because section 402(c)(1) of the Clean Water Act 
prohibits EPA from issuing permits in authorized states only for 
``those discharges subject to [the state's authorized] program.'' 
Discharges formerly excluded under 40 CFR 122.3 are not ``subject to'' 
authorized state programs. The vessel discharges that will be covered 
by the permit are discharges formerly excluded from NPDES permitting 
programs under 40 CFR 122.3. (See discussion of the vacatur of this 
exclusion above.) Therefore the discharges at issue are not

[[Page 21942]]

considered a part of any currently authorized state NPDES program. See 
40 CFR 123.1(i)(2) (where state programs have a greater scope of 
coverage than ``required'' under the federal program, that additional 
coverage is not part of the authorized program) and 40 CFR 123.1(g)(1) 
(authorized state programs are not required to prohibit point source 
discharges exempted under 40 CFR122.3).

C. Categories of Vessels Covered Under VGP

    The VGP applies to owners and operators of non-recreational vessels 
that are 79 feet (24.08 meters) and greater in length. The types of 
vessels covered under the VGP include cruise ships, ferries, barges, 
mobile offshore drilling units, oil tankers or petroleum tankers, bulk 
carriers, cargo ships, container ships, other cargo freighters, 
refrigerant ships, research vessels, emergency response vessels, 
including firefighting and police vessels, and any other vessels 
operating in a capacity as a means of transportation. Vessels of the 
Armed Forces of the United States are not eligible for coverage by this 
permit. The discharges eligible for coverage under this permit are 
those covered by the former exclusion in 40 CFR 122.3(a) prior to its 
vacatur.

D. Summary of VGP and Significant Changes from the Proposed VGP

1. Ballast Water
    Today's final permit contains numeric technology-based effluent 
limitations that are applicable to vessels with ballast water tanks and 
over time will largely replace the non-numeric effluent limitations 
(BMPs) for ballast water in the 2008 VGP. These limitations will 
achieve significant reductions in the number of living organisms 
discharged via ballast water into waters subject to this permit. 
Ballast water discharges are widely recognized as one of the primary 
sources (or vectors) for the spread of aquatic invasive species, also 
known as aquatic nuisance species (ANS). When species in ballast tanks 
are transported between waterbodies and discharged, they have potential 
for establishing new, non-indigenous populations that can cause severe 
economic and ecological impacts. EPA has expressed the numeric effluent 
limit for ballast water discharges as numbers of living organisms per 
cubic meter of ballast water (i.e. as a maximum acceptable 
concentration) because reducing the concentration of living organisms 
will reduce inoculum densities of potential invasive species discharged 
in a vessel's ballast water, i.e., thereby reducing the risk posed by 
the discharge. Today's permit also contains maximum discharge 
limitations for certain biocides and residuals to limit the impact of 
these pollutants to waters subject to this permit. The final permit 
also allows most vessels which meet the treatment requirements to no 
longer perform ballast water exchange. Under the VGP, vessel owner/
operators subject to the concentration-based numeric discharge 
limitations are able to meet these limits in one of four ways: treat 
ballast water to meet the applicable numeric limits of the VGP prior to 
discharge; transfer the ship's ballast water to a third party for 
treatment at an NPDES permitted facility; use treated municipal/potable 
water as ballast water; or not discharge ballast water. As in the 2008 
VGP, vessels enrolled in, and meeting the requirements of the U.S. 
Coast Guard's Shipboard Technology Evaluation Program (STEP) would be 
deemed to be in compliance with the numeric limitations.
    As in the 2008 VGP, EPA has included certain mandatory practices 
for all vessels. These requirements are consistent with EPA's Science 
Advisory Board's recommendations to reduce risks at multiple points in 
the ballast's operations (See EPA SAB 2011, available at https://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr--activites/
6FFF1BFB6F4E09FD852578CB006E0149/$File/EPA-SAB-11-009-unsigned.pdf). 
Some of the mandatory practices for all vessels equipped with ballast 
water tanks that operate in waters of the U.S are to: avoid the 
discharge of ballast water into waters subject to this permit that are 
within or that may directly affect marine sanctuaries, marine 
preserves, marine parks, shellfish beds, or coral reefs; minimize or 
avoid uptake of ballast water in the listed areas and situations; clean 
ballast tanks regularly to remove sediments in mid-ocean or under 
controlled arrangements in port, or at drydock; when feasible and safe, 
vessels must use ballast water pumps instead of gravity draining to 
empty your ballast water tanks (to remove larger living organisms); and 
minimize the discharge of ballast water essential for vessel operations 
while in the waters subject to this permit. EPA estimated the cost and 
burden of the ballast water requirements in its economic analysis for 
the permit.
    EPA has determined that Best Available Technology Economically 
Achievable (BAT) over time will be a function of a vessel's 
construction date, size, and class. The VGP imposes several best 
management practices (BMPs) for vessels until they are required to meet 
the numeric ballast water limits that EPA has found to be available, 
practicable and economically achievable. These interim requirements are 
substantially similar to those in the 2008 VGP. One of the interim 
management measures is that all vessels which operate outside of the 
Exclusive Economic Zone (EEZ) that are equipped to carry ballast water 
and enter the Great Lakes via the Saint Lawrence Seaway System must 
conduct ballast water exchange or saltwater flushing (as applicable) of 
ballast water tanks 200 nautical miles from any shore before entering 
either the U.S. or Canadian waters of the Seaway System.
    For certain existing vessels, EPA proposed a staggered 
implementation schedule to require the vessel to meet the numeric 
effluent limitations by the first drydocking after January 1, 2014 or 
January 1, 2016 depending on vessel size, which may extend beyond the 
permit term for certain vessels. EPA has finalized this schedule. 
However, EPA has adjusted the date in the final VGP defining ``new 
build'' vessels--which are vessels that are subject to numeric limits 
immediately upon the effective date of today's permit--from those 
vessels that are newly constructed after January 1, 2012 to those that 
are newly constructed after December 1, 2013. EPA notes that this time 
schedule is consistent with the timelines set forth in the U.S. Coast 
Guard's March 2012 final ballast water discharge standard rulemaking.
    In today's permit, the numeric concentration-based treatment limits 
for ballast water discharges do not apply to some vessels, such as 
inland and certain seagoing vessels less than 1600 gross registered 
tons; vessels operating exclusively within a limited area on short 
voyages; unmanned, unpowered barges; and vessels built before January 
1, 2009 that operate exclusively in the Laurentian Great Lakes 
(referred to as ``Lakers''). The draft VGP would have required any 
vessel (not otherwise exempt) with greater than 8 cubic meters of 
ballast water capacity to meet the numeric ballast effluent limitations 
for ballast water. In response to comments questioning the availability 
of systems for these vessels, EPA reconsidered the issue and concluded 
that though technologies are promising for future development, numeric 
ballast water treatment limits for inland and seagoing vessels less 
than 1600 gross registered tons do not represent BAT at this time or 
over the life of the permit. Among other things, most ballast water 
treatment systems have been designed for larger vessels and/or vessels 
which only uptake or discharge ballast water on either end of longer 
voyages.

[[Page 21943]]

    With respect to Lakers that are not subject to the numeric limits 
found in Part 2.2.3.5 of the VGP, EPA has expanded the definition of 
Lakers to include vessels that operate exclusively in the Laurentian 
Great Lakes (i.e., existing vessels that operate upstream of the waters 
of the St. Lawrence River west of a rhumb line drawn from Cap de 
Rosiers to West Point, Anticosti Island, and west of a line along 63 W. 
longitude from Anticosti Island to the north shore of the St. Lawrence 
River). After considering public comment, EPA has determined that 
effluent limits based on ballast water treatment do not reflect BAT for 
existing vessels operating exclusively in the Laurentian Great Lakes at 
this time. Today's VGP includes three management measures specific to 
Lakers which EPA believes reflect BAT, and represent common sense 
approaches to managing ballast water discharges for vessels when they 
have not installed ballast water treatment systems.
    Additionally, as proposed, the final VGP requires vessels entering 
the Great Lakes utilizing a ballast water treatment system to conduct 
ballast water exchange or saltwater flushing (as applicable) in 
addition to meeting the numeric limits for ballast water once they 
apply: (1) The vessel operates outside the Exclusive Economic Zone 
(EEZ) and more than 200 nm from any shore and then enters the Great 
Lakes, and (2) the vessel has taken on ballast water that has a 
salinity of less than 18 ppt from a coastal, estuarine, or freshwater 
ecosystem within the previous month. If a vessel meeting the 
description in (1) has not taken on ballast water with a salinity of 
less than 18 ppt in the previous month, the master of the vessel would 
be required to certify to this effect as part of the ballast water 
recordkeeping requirements before entering the Great Lakes. EPA 
believes that such a requirement significantly reduces the risk of new 
invasions from vessels entering the Great Lakes, but the Agency, for 
reasons pertaining to the efficacy of the requirement in other aquatic 
environments, has not extended it to other U.S. waters. Please see 
section 4.4.3.9 of the VGP Fact Sheet for discussion.
2. Non-Ballast Water
    Compared to the 2008 VGP, today's VGP imposes more prescriptive 
technology-based effluent limits in the form of Best Management 
Practices for discharges of oil to sea interfaces. The VGP requires 
that all powered vessels must use ``environmentally acceptable 
lubricants'' in their oil-to-sea interfaces unless it is technically 
infeasible to do so. Based on public comment received on the proposal, 
EPA clarified that, by using the reference to ``technically 
infeasible,'' EPA intends to refer to situations when: no EAL products 
are approved for use in a given application that meet manufacturer 
specifications for that equipment; users of products that are pre-
lubricated (e.g., wire ropes) have no available alternatives 
manufactured with EALs; products meeting a manufacturers specifications 
are not available within any port in which the vessel calls; or changes 
to use an EAL must wait until the vessel's next drydocking. EPA expects 
that it will be technically feasible for a significant portion of 
vessel operators to use EALs, particularly for newly built vessels, 
during this permit term. These requirements will reduce the toxicity of 
thousands of gallons or more of oil leaked into U.S. waters every year.
    In addition, EPA clarified that, even though the final permit 
requires that wire ropes or cables and other equipment must be 
thoroughly wiped down to remove excess lubricant before being placed 
into service and after periodic lubrication, wipe downs to remove 
excess lubricant are not required if doing so is deemed unsafe by the 
Master of the vessel.
    Additionally, in the event that the permitting moratorium for 
commercial fishing vessels is not extended past December 18, 2014, 
today's permit will be available to authorize the discharge of fish 
hold effluent and will establish appropriate Best Management Practices 
for this discharge type after that date. Among other things, the 
proposed VGP contained a provision prohibiting the discard of unused 
bait overboard. In response to comments, the final VGP limits the scope 
this prohibition and clarifies that it applies only to unused live 
bait. Moreover, the prohibition does not apply to the unused live bait 
that is discharged into the same waterbody or watershed from which it 
was caught. The adjusted prohibition render it easy to implement and 
consistent with typical management practices regarding the use of live 
bait, while at the same time significantly reducing the risk of new 
invasive species (including fish pathogens) introductions attributable 
to the release of unused bait.
    EPA has also included numeric limits for exhaust gas scrubber 
effluent that are generally consistent with those established by 
International Maritime Organization guidelines for this discharge type. 
Today's permit includes a revised discharge standard from washwater 
from the exhaust gas scrubber treatment system for pH. EPA believes the 
revised limit is both technically feasible and will ensure the 
discharge does not pose an unacceptable risk to receiving water. The 
proposed pH limit of no less than 6.5 was modified to better align with 
the IMO guidelines, and therefore, the final VGP requires that the 
discharge washwater must have a pH of no less than 6.0 measured at the 
ship's overboard discharge. See discussion in section 4.4.26 of the VGP 
Fact Sheet for additional discussion.
    The VGP contains monitoring requirements for certain larger vessels 
for ballast water, bilgewater, graywater, and/or exhaust gas scrubber 
effluent if they discharge into waters subject to the permit. EPA has 
included these monitoring requirements to assure treatment systems are 
performing as required (when applicable) and to generate additional 
information for EPA's future analyses. Based on public comments 
received on the proposed VGP, EPA has adjusted the frequency of 
monitoring for some or all parameters for each discharge type and/or 
applicability thresholds for vessels which must conduct monitoring. 
These revisions in the final VGP have generally resulted in a reduced 
burden for the regulated industry relative to the proposed VGP. EPA 
estimated the cost and burden of these requirements in its economic 
analysis for the permit. EPA had taken comment on more stringent 5 ppm 
bilgewater oil and grease discharge limits for new build vessels in the 
VGP; based upon further analysis, EPA decided to retain the 15 ppm 
limit in the final permit but plans to work with our international 
partners at the IMO to explore the issue further.
    The final VGP requires new build vessels greater than 400 gross 
tons which discharge bilgewater into waters subject to this permit to 
annually collect a sample of the bilgewater effluent for analysis of 
oil using specified methods to demonstrate treatment equipment 
maintenance and compliance with this permit and record the reading on 
the oil content meter. If the vessel has a type-approved oil discharge 
monitoring system including an overboard discharge control unit that 
prevents bilgewater discharges above 5 ppm and has two consecutive 
years' worth of analytical monitoring results that are below 5 ppm for 
oil and grease during the permit term, a vessel may cease conducting 
the annual analytical bilgewater monitoring for the rest of the permit 
term.
3. Administrative Improvements
    EPA has made several efficiency improvements, including clarifying 
that

[[Page 21944]]

electronic recordkeeping is allowed under the permit, eliminating 
duplicative reporting, and allowing consolidated reporting for certain 
vessels.
    Under today's final VGP, permittees not required to submit a NOI 
are required to complete and keep a Permit Authorization and Record of 
Inspection (PARI) Form onboard their vessel at all times. The final VGP 
contains the PARI form requirement because the Agency believes it is an 
efficient way for the owner/operator to certify that they have read and 
agreed to comply with the terms of the permit, and demonstrate basic 
understanding of the permit's terms and conditions. In addition, the 
form will provide EPA (or its authorized representative) with a 
standardized foundation for conducting inspections. Under the final 
VGP, EPA has consolidated the one-time report and annual noncompliance 
report into one annual report. As discussed in the fact sheet for 
today's permit, EPA found that the 2008 VGP reporting requirements 
resulted in confusion among some permittees. EPA believes that having a 
single annual report that permittees must file, which can include all 
of the permittee's analytical monitoring results (as applicable) for 
the previous year, will reduce this confusion and result in better 
information for the Agency. Additionally, while the proposed VGP 
allowed operators of unmanned, unpowered barges to complete combined 
annual reports if they meet certain criteria, the final VGP expands the 
ability for certain vessels (unmanned unpowered barges and vessels 
under 300 gross tons) to submit a combined annual report, if they meet 
specified criteria, to maximize efficiency and reduce the burden on a 
significant portion of the regulated universe. Many of these vessels 
are fundamentally similar and have a limited number of discharges. 
Vessels less than 300 gross tons, as a class, tend to produce lower 
volumes of effluent than their larger ocean going counterparts. Hence, 
EPA has broadened the applicability of this provision in order to 
provide an efficient way to gather information by the agency without 
sacrificing data quality.

IV. Analysis of Economic Impacts of VGP

    EPA performed an economic analysis for the VGP to evaluate the 
incremental costs of requirements in the permit. This analysis is 
available in the docket for today's permit. A summary of the analysis 
follows.

A. Analysis of VGP costs

    EPA estimates that approximately 60,000 domestic flag and 12,400 
foreign flag vessels would be covered under the VGP, but only a subset 
of these vessels would incur incremental costs as a result of the 
revised VGP requirements. To estimate the effect of revised permit 
requirements on an industry as a whole, EPA's VGP analysis takes into 
account previous conditions and determines how the industry would act 
in the future in the absence of revised permit requirements. The 
baseline for this analysis is full industry compliance with existing 
federal and state regulations, including the 2008 VGP in the case of 
vessels currently covered by that permit; and current industry 
practices or standards that exceed current regulations to the extent 
that they can be empirically observed. In addition, a number of laws 
and associated regulations (including the National Invasive Species 
Act; the Act to Prevent Pollution from Ships; the Comprehensive 
Environmental Response, Compensation, and Liability Act; the Organotin 
Anti-fouling Paint Control Act; and others) already cover certain 
discharges that would be subject to the new permitting regime. The 
overlap between revised permit requirements and existing regulations 
and practices is discussed at greater length in the economic analysis.
    EPA estimated incremental compliance costs to commercial vessels 
associated with revised permit's practices and discharge categories 
identified and the paperwork burden costs. Incremental costs are 
understood to result from the inclusion of all commercial fishing 
vessels 79 feet or larger under the VGP. As noted above, the moratorium 
on coverage for commercial fishing vessels and vessels less than 79 
feet expires on December 18, 2014. Commercial fishing vessels 79 feet 
or larger will be covered by the VGP, and most non-recreational vessels 
less than 79 feet, including commercial fishing vessels, are expected 
to be covered by the sVGP. Changes in compliance costs also result from 
streamlining selected requirements, which is expected to reduce 
compliance costs for owners of certain vessels. Overall, EPA finds that 
revisions in the VGP requirements could result in aggregate annual 
incremental costs for domestic vessels ranging between $7.2 and $23.0 
million (in 2010$). This includes the paperwork burden costs and the 
sum of all practices for applicable discharge categories for all 
vessels estimated to be covered by the revised VGP. EPA notes that the 
total national cost estimate may be overly conservative (i.e. an 
overestimate of costs attributable to the permit) due to the inclusion 
of costs associated with commercial fishing vessels. The total annual 
compliance costs resulting from the 2013 VGP is reduced by $627,635 to 
$2,296,526 for the first year of permit coverage year as these vessels 
are not required to obtain NPDES coverage until at least December 18, 
2014.
    The average per vessel compliance costs range between $51 and 
$7,004 per vessel. There is considerable uncertainty in the assumptions 
used for several practices and discharge categories and these estimates 
therefore provide illustrative ranges of the costs potentially 
associated with the 2013 VGP rather than incremental costs incurred by 
any given vessel owner. Tank ships have the highest average compliance 
costs; this is driven by potential incremental costs for oil tankers 
exclusively engaged in coastwise trade that may install and operate 
onboard ballast water treatment systems to meet the 2013 VGP 
requirements applicable to ballast water discharges.
    To evaluate economic impacts of revised VGP requirements on the 
water transportation, fishing, and mining industries, EPA performed a 
firm-level analysis. The firm-level analysis examines the impact of any 
incremental cost per vessel to comply with the revised VGP requirements 
on model firms that represent the financial conditions of ``typical'' 
businesses in each of the examined industry sectors. More than ninety 
percent of the firms in the water transportation and fishing 
industries, and in the drilling oil and gas wells segment of the mining 
industry, are small, and EPA believes it is unlikely that firm-level 
impacts would be significant among large firms in this industry. 
Therefore, a firm-level analysis focuses on assessment of impacts on 
small businesses. To evaluate the potential impact of the final VGP on 
small entities, EPA used a cost-to-revenue test to evaluate the 
potential severity of economic impact on vessels and facilities owned 
by small entities. The test calculates annualized pre-tax compliance 
cost as a percentage of total revenues and uses a threshold of 1 and 3 
percent to identify facilities that would be significantly impacted as 
a result of this Permit.
    EPA applied a cost-to-revenue test which calculates annualized pre-
tax compliance cost as a percentage of total revenues and used a 
threshold of 1 and 3% to identify entities that would be significantly 
impacted as a result of this Permit. The total number of entities

[[Page 21945]]

expected to exceed a 1% cost-to-revenue threshold ranges from 76 under 
low cost assumptions to 340 under high cost assumptions. Of this 
universe, the total number of entities expected to exceed a 3% cost-to-
revenue threshold ranges from 5 under low cost assumptions to 30 under 
high cost assumptions. This is based out of 5,480 total small firms. 
Accordingly, EPA concludes that the VGP will not have a significant 
economic impact on a substantial number of small entities or other 
businesses.

B. Benefits of the VGP

    Although EPA was unable to evaluate the expected benefits of the 
permit in dollar terms due to data limitations, the Agency collected 
and considered relevant information to enable qualitative consideration 
of ecological benefits and to assess the importance of the ecological 
gains from the revisions. EPA expects that reductions in vessel 
discharges will benefit society in two broad categories: (1) Enhanced 
water quality from reduced pollutant discharges and (2) reduced risk of 
invasive species introduction and dispersal. With some of the most 
damaging invasive species having cost the U.S. economy upwards of 1 
billion dollars each, the environmental and economic benefits of 
stopping and slowing new invasions introductions and dispersal are 
significant.
    Because many of the nation's busiest ports are considered to be 
impaired by a variety of pollutants found in vessel discharges, 
reducing pollutant loadings from these discharges is expected to have 
benefits associated with the reduction of concentrations of nutrients, 
metals, oil, grease, and toxics in waters with high levels of vessel 
traffic.

V. Executive Orders 12866 and 13563

    Under Executive Order (EO) 12866 (58 FR 51735 (October 4, 1993)) 
EPA has determined this action is a ``significant regulatory action.'' 
Accordingly, EPA submitted this action to the Office of Management and 
Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 
3821) and any changes made in response to OMB recommendations have been 
documented in the docket for this action.

    Authority:  Clean Water Act, 33 U.S.C. 1251 et seq.

    Dated: March 28, 2013.
Ira W. Leighton,
Deputy Regional Administrator, EPA Region 1.
    Dated: March 28, 2013.
Ramon Torres,
Acting Director, Caribbean Environmental Protection Division, EPA 
Region 2.
    Dated: March 28, 2013.
Joan Leary Matthews,
Division Director, Clean Water Division, EPA Region 2.
    Dated: March 28, 2013.
Jon M. Capacasa,
Director, Water Protection Division, EPA Region 3.
    Dated: March 28, 2013.
James D. Giattina,
Director, Water Protection Division, EPA Region 4.
    Dated: March 28, 2013.
Tinka G. Hyde,
Director, Water Division, EPA Region 5.
    Dated: March 28, 2013.
William K. Honker,
Director, Water Quality Protection Division, EPA Region 6.
    Dated: March 28, 2013.
Karen Flournoy,
Director, Wetlands and Pesticides Division, EPA Region 7.
    Dated: March 28, 2013.
Derrith R. Watchman-Moore,
Assistant Regional Administrator, Office of Partnerships and Regulatory 
Assistance, EPA Region 8.
    Dated: March 28, 2013.
John Kemmerer,
Acting Director, Water Division, EPA Region 9.
    Dated: March 28, 2013.
Daniel D. Opalski,
Director, Office of Water and Watersheds, EPA Region 10.
[FR Doc. 2013-08662 Filed 4-11-13; 8:45 am]
BILLING CODE 6560-50-P