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EPA Issues Much-Anticipated Final Rule Establishing National Standards of Performance for Vessel Incidental Discharges

By Greg L. Johnson, Clare M. Bienvenu, Emily von Qualen, Nicolette Kraska & Colin North on October 15, 2024
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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.

Disclaimer: This Blog/Web Site is made available by the law firm of Liskow & Lewis, APLC (“Liskow & Lewis”) and the individual Liskow & Lewis lawyers posting to this site for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice as to an identified problem or issue. By using this blog site you understand and acknowledge that there is no attorney-client relationship formed between you and Liskow & Lewis and/or the individual Liskow & Lewis lawyers posting to this site by virtue of your using this site. The Blog/Web Site should not be used as a substitute for legal advice from a licensed professional attorney in your state regarding a particular matter.

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Photo of Greg L. Johnson Greg L. Johnson

Greg Johnson is an experienced business lawyer with a long record of helping Louisiana companies with the environmental aspects of complex, large-impact transactions, litigation, and regulatory compliance issues throughout the surrounding Gulf Coast region.  A significant focus of Greg’s practice is representing domestic…

Greg Johnson is an experienced business lawyer with a long record of helping Louisiana companies with the environmental aspects of complex, large-impact transactions, litigation, and regulatory compliance issues throughout the surrounding Gulf Coast region.  A significant focus of Greg’s practice is representing domestic and international corporations with environmental permitting for major, high-profile industrial facility projects – such as a proposed, $20 billion gas-to-liquid facility – and with the resolution of often-controversial, high-exposure, oil and gas or energy-related disputes, such as claims in the aftermath of the Deepwater Horizon oil spill.

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Photo of Clare M. Bienvenu Clare M. Bienvenu

Clare Bienvenu is an environmental regulatory and litigation lawyer who has practiced in both Louisiana and California, working with clients across the United States. Clare counsels clients regarding complex environmental regulatory, enforcement, and permitting issues spanning the range of federal and state environmental…

Clare Bienvenu is an environmental regulatory and litigation lawyer who has practiced in both Louisiana and California, working with clients across the United States. Clare counsels clients regarding complex environmental regulatory, enforcement, and permitting issues spanning the range of federal and state environmental laws. Clare additionally facilitates the permitting and regulatory aspects of developing new facilities on behalf of energy, petrochemical, and industrial clients. Her substantive environmental experience includes air permitting, hazardous waste regulation, land remediation, land use regulation, coastal regulation, carbon sequestration projects, and renewable energy projects.

Clare has played a key role in various administrative matters, proceedings, and enforcement actions. She has participated in consent decree negotiations and the termination of consent decrees with the Environmental Protection Agency and the Department of Justice, as well as settlement negotiations with the Louisiana Department of Environmental Quality and the California Air Resources Board. Clare has also represented clients in permitting matters involving the U.S. Army Corps of Engineers and the Louisiana Department of Natural Resources, Office of Coastal Management. She also advises on environmental justice considerations in the context of agency permitting.

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Photo of Emily von Qualen Emily von Qualen

Emily is an environmental litigator practicing in the firm’s New Orleans office.

Prior to joining the firm, Emily practiced complex business law in the litigation group at Skadden, Arps, Slate, Meagher & Flom LLP in Houston.  Immediately after law school, she clerked in…

Emily is an environmental litigator practicing in the firm’s New Orleans office.

Prior to joining the firm, Emily practiced complex business law in the litigation group at Skadden, Arps, Slate, Meagher & Flom LLP in Houston.  Immediately after law school, she clerked in the Western District of Louisiana with Judge Minaldi.

Emily received her Juris Doctor from Tulane University Law School in 2016, graduating first in her class.  During law school, she also served as a judicial extern to the Honorable James L. Dennis of the United States Court of Appeals for the Fifth Circuit and the Honorable James Brady of the United States District Court, Middle District of Louisiana.

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Photo of Nicolette Kraska Nicolette Kraska

Nicolette is an associate in the firm’s Maritime, Oilfield, and Insurance practice group based in New Orleans. Her practice covers litigation, contract drafting, and commercial disputes. Nicolette also maintains an active pro bono practice.

Prior to joining the firm, Nicolette served as a

…

Nicolette is an associate in the firm’s Maritime, Oilfield, and Insurance practice group based in New Orleans. Her practice covers litigation, contract drafting, and commercial disputes. Nicolette also maintains an active pro bono practice.

Prior to joining the firm, Nicolette served as a law clerk to the Honorable Eldon E. Fallon of the U.S. District Court for the Eastern District of Louisiana and the Honorable Jacques L. Wiener of the U.S. Court of Appeals for the Fifth Circuit. Before law school, Nicolette was an economic and damages consultant for Kroll, LLC (formerly Duff & Phelps), providing expert witness services to high-profile clients involved in intellectual property litigation and licensing.

Nicolette received her Juris Doctor from Tulane University School of Law, where she earned the Admiralty and Maritime Law Certificate. Nicolette served as the Senior Articles Editor of the Tulane Law Review, President of the Tulane Maritime Law Society, and Student Attorney in the Civil Rights and Federal Practice Clinic and the Tulane University Legal Assistance Program.

Nicolette hails from the Midwest and grew up boating on Barkley and Kentucky Lakes and the Mississippi and Illinois Rivers. Nicolette earned her boating license at a young age and helped her family crew maintain small and large powerboats. In recent years, Nicolette has spent time on powerboats around Florida’s Gulf Coast.

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Photo of Colin North Colin North

Colin North is an associate in the firm’s Environmental Regulatory practice group. He received his Juris Doctor and Graduate Diploma in Comparative Law, magna cum laude, from the Paul M. Hebert Law Center, Louisiana State University in 2023. During law school, he…

Colin North is an associate in the firm’s Environmental Regulatory practice group. He received his Juris Doctor and Graduate Diploma in Comparative Law, magna cum laude, from the Paul M. Hebert Law Center, Louisiana State University in 2023. During law school, he was a member of the Board of Advocates and participated in the Robert Lee Tullis Moot Court Competition.

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  • Posted in:
    Environmental and Climate
  • Blog:
    The Energy Law Blog
  • Organization:
    Liskow & Lewis
  • Article: View Original Source

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