We write to inform you of an important development in the implementation and enforcement of the Vessel General Permit requirements for certain vessels in U.S. waters. The U.S. Coast Guard (USCG) and the U.S. Environmental Protection Agency (EPA) have published a Memorandum of Understanding (MOU) regarding collaboration between those two agencies on monitoring and enforcing the Vessel General Permit (VGP) requirements.
The Clean Water Act (CWA) prohibits the discharge of any pollutant into the waters of the United States unless otherwise authorized or permitted. The definition of “pollutant” under the CWA is very broad, and encompasses almost all operational vessel discharges. For many years, the EPA exempted such operational discharges from the permitting requirements. Following lengthy litigation brought by environmental groups challenging the EPA’s authority to make such an exemption, the U.S. Court of Appeals for the Ninth Circuit ordered the EPA to enforce the CWA’s provisions to operational vessel discharges. In response to that court ruling, the EPA issued the VGP in December 2008 to “permit” operational discharges from vessels in U.S. waters. The VGP went into effect in February 2009, but has not generally been enforced.
In short, the VGP applies to commercial vessels of 79 feet or greater in length operating in U.S. waters and
- Establishes requirements for management of 26 types of vessel operational discharges;
- Establishes additional discharge requirements for certain vessel types; and
- Establishes inspection, recording, and self-reporting requirements.
Enforcement of the VGP
Ever since the EPA issued the VGP, it has been anticipated that the USCG would enforce the VGP as part of its normal Port State Control inspections. USCG personnel have informally said that no such enforcement was likely until the USCG entered into a formal MOU with the EPA. The recently-issued MOU confirms the expectation that the USCG will incorporate VGP compliance verification into its existing inspection and Port State Control exam protocols and procedures. It remains uncertain as to when the USCG will incorporate VGP verification into its inspections, but vessel owners and operators must be prepared now for such inspections.
What can a vessel operator take away from this news?
1) The VGP requirements will be actively enforced by the USCG;
2) Vessel owners and operators should ensure that their vessels calling in U.S. waters are in compliance with the VGP discharge and record-keeping requirements. This includes filing a Notice of Intent to comply with the VGP for vessels of 300 gross tons or more.
Please do not hesitate to contact us if you have any questions about the topics discussed in this brief, or if we can be of any assistance otherwise.
This information has been prepared by Keesal, Young & Logan for informational purposes only and is not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between you and Keesal, Young & Logan. You should not act upon this information without seeking professional counsel.