Vessel Incidental Discharge National Standards of Performance

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 139

EPA-HQ-OW-2019-0482; FRL-7218-01-OW

RIN 2040-AF92

Vessel Incidental Discharge National Standards of Performance

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The U.S. Environmental Protection Agency (EPA) is promulgating a regulation under the Vessel Incidental Discharge Act that establishes Federal standards of performance for marine pollution control devices for discharges incidental to the normal operation of primarily non-Armed Forces and non-recreational vessels 79 feet in length and above into the waters of the United States or the waters of the contiguous zone. The Federal standards of performance were developed in coordination with the U.S. Coast Guard (USCG) and in consultation with interested Governors. The final standards, once made final, effective, and enforceable through corresponding USCG regulations addressing implementation, compliance, and enforcement, will control the discharge of pollutants from vessels described above and repeal certain existing Federal, State, and local vessel discharge requirements, thus streamlining regulation of such vessel incidental discharges. EPA is also promulgating procedures states must follow if they choose to petition EPA to require the use of an emergency best management practice to address aquatic nuisance species (ANS) or water quality concerns (“emergency order”), to review any standard of performance, regulation, or policy, to request additional requirements with respect to discharges in the Great Lakes, or to apply to EPA to prohibit one or more types of vessel discharges regulated by this rule into specified waters to provide greater environmental protection.

DATES:

The effective date of this rule is November 8, 2024. The Federal standards of performance, however, become effective beginning on the date upon which the regulations promulgated by the Secretary pursuant to CWA section 312(p)(5) governing the implementation, compliance, and enforcement of the Federal standards of performance become final, effective, and enforceable. Per CWA section 312(p)(3)(c), as of that date, the requirements of the VGP and all regulations promulgated by the Secretary pursuant to section 1101 of the NANPCA (16 U.S.C. 4711) (as in effect on December 3, 2018), including the regulations contained in subparts C and D of 33 CFR part 151 and 46 CFR 162.060 (as in effect on December 3, 2018), shall be deemed repealed and have no force or effect. Similarly, as of that same date, any CWA section 401 certification requirement in Part 6 of the VGP, shall be deemed repealed and have no force or effect.

ADDRESSES:

EPA established a docket for this action under Docket ID No. EPA-HQ-OW-2019-0482. All documents in the docket are listed on the

https://www.regulations.gov

website. Although listed in the index, some information is not publicly available,

e.g.,

Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through

https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Jack Faulk, Oceans, Wetlands, and Communities Division, Office of Water (4504T), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: (202) 564-0768; email address:

faulk.jack@epa.gov.

SUPPLEMENTARY INFORMATION:

This supplementary information is organized as follows:

I. Executive Summary

II. Legal Authority

III. Background

A. Clean Water Act

B. Additional U.S. and International Authorities

C. Environmental Impacts of Discharges for Which Technology-Based Discharge Standards Are Established by This Rule

1. Aquatic Nuisance Species (ANS)

2. Nutrients

3. Pathogens

4. Oil and Grease

5. Metals

6. Other Pollutants

IV. Scope of the Regulatory Action

A. Waters

B. Vessels

C. Incidental Discharges

D. Emergency and Safety Concerns

E. Effective Date

V. Stakeholder Engagement

A. Informational Webinars and Public Listening Sessions

B. Consultation and Coordination With States

1. Federalism Consultation and Governors Consultation

2. Governor Objections

VI. Public Comments Received and Agency Responses

VII. Definitions

VIII. Final Federal Discharge Standards of Performance

A. Discharges Incidental to the Normal Operation of a Vessel—General Standards

1. General Operation and Maintenance

2. Biofouling Management

3. Oil Management

B. Discharges Incidental to the Normal Operation of a Vessel—Specific Standards

1. Ballast Tanks

2. Bilges

3. Boilers

4. Cathodic Protection

5. Chain Lockers

6. Decks

7. Desalination and Purification Systems

8. Elevator Pits

9. Exhaust Gas Emission Control Systems

10. Fire Protection Equipment

11. Gas Turbines

12. Graywater Systems

13. Hulls and Associated Niche Areas

14. Inert Gas Systems

15. Motor Gasoline and Compensating Systems

16. Non-Oily Machinery

17. Pools and Spas

18. Refrigeration and Air Conditioning

19. Seawater Piping

20. Sonar Domes

C. Discharges Incidental to the Normal Operation of a Vessel—Federally-Protected Waters Requirements

1. Identification of Federally-Protected Waters

2. Discharge-Specific Requirements in Federally-Protected Waters

D. Discharges Incidental to the Normal Operation of a Vessel—Previous VGP Discharges No Longer Requiring Control

IX. Procedures for States To Request Changes to Standards, Regulations, or Policy Promulgated by the Administrator

A. Petition by a Governor for the Administrator To Establish an Emergency Order or Review a Standard, Regulation, or Policy

B. Petition by a Governor for the Administrator To Establish Enhanced Great Lakes System Requirements

C. Application by a State for the Administrator To Establish a State No-Discharge Zone

X. Implementation, Compliance, and Enforcement

XI. Economic Analysis

XII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 14094: Modernizing Regulatory Review

B. Paperwork Reduction Act (PRA)

C. Regulatory Flexibility Act (RFA)

D. Unfunded Mandates Reform Act (UMRA)

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

H. Executive Order 13211: Actions That Concern Regulations That Significantly Affect Energy Supply, Distribution, and Use

I. National Technology Transfer and Advancement Act

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations and Executive Order 14096: Revitalizing Our Nation's Commitment to Environmental Justice for All

K. Congressional Review Act (CRA)

XIII. References

I. Executive Summary

Discharges incidental to the normal operation of a vessel, as defined in 33 U.S.C. 1322(a)(12), are referred to as “incidental discharges” or “discharges” in this publication for convenience. Incidental discharges contain pollutants that can adversely impact aquatic ecosystems and human health. Pollutants that may be found in these discharges include aquatic nuisance species (ANS), nutrients, bacteria or pathogens (

e.g., Escherichia coli

and fecal coliform), oil and grease, metals, as well as other toxic, nonconventional, and conventional pollutants (biochemical oxygen demand (BOD), total suspended solids (TSS), pH, fecal coliform, and oil and grease). These pollutants can have wide-ranging environmental and human health consequences that vary in degree depending on the type and number of vessels operating in a waterbody and the nature and extent of the discharge.

The Federal Water Pollution Control Act Amendments of 1972

1

(commonly known as the Clean Water Act (CWA)), the Nonindigenous Aquatic Nuisance Prevention and Control Act (NANPCA), the Act to Prevent Pollution from Ships (APPS), and several other Federal, State, local, and international authorities have established over time various requirements for both domestic and international vessels. To clarify and streamline existing requirements, in December of 2018, the Vessel Incidental Discharge Act (VIDA) was signed into law. The VIDA established a new CWA section 312(p) titled, “Uniform National Standards for Discharges Incidental to Normal Operation of Vessels.” 33 U.S.C. 1322(p). The VIDA consolidates and restructures the existing regulatory framework applicable to incidental discharges of largely commercial vessels 79 feet in length and above. The VIDA does not apply to incidental discharges from vessels of the Armed Forces, recreational vessels, and floating craft that are permanently moored to a pier. Also, the VIDA does not apply to incidental discharges from small vessels (less than 79 feet in length) or fishing vessels, except for discharges of ballast water. The VIDA requires EPA to establish Federal standards of performance for marine pollution control devices and the USCG to establish corresponding implementing regulations to prevent or reduce the incidental discharge of pollutants from vessels.

1

The Federal Water Pollution Control Act (FWPCA) is commonly referred to as the CWA following the 1977 amendments to the FWPCA. Public Law 95-217, 91 Stat. 1566 (1977). For ease of reference, the agencies will generally refer to the FWPCA in this notice as the CWA or the Act.

More specifically, the new CWA section 312(p)(4)(A)(i) directs the EPA Administrator (“Administrator”) to develop Federal standards of performance, in consultation with interested Governors and with the concurrence of the Secretary of the department in which the USCG is operating (“Secretary”). With limited exceptions, the VIDA requires that the standards be at least as stringent as EPA's 2013 National Pollutant Discharge Elimination System (NPDES) Vessel General Permit (VGP) requirements established under CWA section 402.

See

33 U.S.C. 1322(p)(4)(B)(iii) (EPA standards);

id.

(5)(A)(ii) (USCG requirements). The VIDA also requires that the standards be technology-based using a similar approach outlined by the CWA for setting, among other things, effluent limitations guidelines.

Id.

(p)(4)(B)(i). The VIDA directs the USCG to develop corresponding implementation, compliance, and enforcement regulations within two years after EPA publishes the Federal standards of performance.

Id.

(p)(5). The USCG implementing regulations may also include requirements governing the design, construction, testing, approval, installation, and use of devices to achieve the EPA Federal standards of performance.

Id.

(p)(5)(B).

Existing requirements included in EPA's VGP, as well as the USCG's existing requirements under section 110 of NANPCA, remain in place until the new EPA and USCG regulations under CWA section 312(p) are final, effective, and enforceable.

Id.

(p)(3). In addition, the VIDA repealed the 2014 EPA NPDES Small Vessel General Permit (sVGP) and established that neither EPA nor the states shall require an NPDES permit for any discharge incidental to the normal operation of a vessel, other than ballast water, from a small vessel or fishing vessel, effective immediately upon the VIDA's enactment.

Id.

(p)(9)(C)(i).

The final rule establishes both general and specific discharge standards of performance for approximately 85,000 international and domestic non-Armed Forces, non-recreational vessels operating in the waters of the United States or the waters of the contiguous zone. The types of vessels covered under the final rule include but are not limited to public vessels of the United States, fishing vessels (for ballast water discharges only), passenger vessels such as cruise ships and ferries, barges, tugs and tows, offshore supply vessels, mobile offshore drilling units, tankers, bulk carriers, cargo ships, container ships, and research vessels. While most provisions are intended to apply to a wide range of vessels, the VIDA specified that fishing vessels would only be subject to ballast water provisions.

Id.

(p)(2)(B)(i)(III). The requirements are based on, as applicable, best available technology economically achievable, best conventional pollutant control technology, and best practicable technology currently available, including the use of best management practices (BMPs), to prevent or reduce the discharge of pollutants into the waters of the United States or the waters of the contiguous zone.

Id.

(p)(4)(B)(i) and (ii).

The general discharge standards of performance apply to all vessels and incidental discharges covered by the rule, as appropriate, and are organized into three categories: (1) General Operation and Maintenance, (2) Biofouling Management, and (3) Oil Management. 40 CFR 139.4 through 139.6. The general discharge standards of performance require BMPs to minimize the introduction of pollutants from discharges.

The specific discharge standards of performance establish requirements for discharges incidental to the normal operation of a vessel from the following 20 distinct pieces of equipment and systems: ballast tanks; bilges; boilers; cathodic protection; chain lockers; decks; desalination and purification systems; elevator pits; exhaust gas emission control systems; fire protection equipment; gas turbines; graywater systems; hulls and associated niche areas; inert gas systems; motor gasoline and compensating systems; non-oily machinery; pools and spas; refrigeration and air conditioning; seawater piping; and sonar domes. 40 CFR 139.10 through 139.29.

Pursuant to CWA section 312(p), the final discharge standards of performance are at least as stringent as the VGP, with some exceptions discussed below. 33 U.S.C.

1322(p)(4)(D)(ii). The final standards, however, do not incorporate the VGP requirements verbatim. EPA is promulgating changes to 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/or to incorporate new information and technology. In some cases, this results in EPA consolidating or renaming the VGP requirements to comport with the VIDA. The similarities and differences between the requirements in the final discharge standards of performance and the requirements in the VGP can be sorted into three distinct groups.

The first group consists of 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. These 13 discharge standards encompass the intent and stringency of the VGP but include other changes to conform the requirements to the VIDA (

e.g.,

extent of regulated waters, consistency across discharge standards, enforceability and legal precision, minor clarifications).

The second group consists of 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.

The third group consists of 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. In addition, the final rule modifies slightly the VGP requirements as they apply in federally-protected waters for five discharges: chain lockers, decks, hulls and associated niche areas, pools and spas, and seawater piping. These modifications address specific VIDA requirements as well as reflect new information that has become available since the issuance of the VGP.

CWA section 312(p) also directs EPA to establish additional discharge requirements for vessels operating in certain bodies of water.

See

CWA section 312(p)(10(A) (Great Lakes);

Id.

(p)(10(C) (Pacific Region); and

Id.

(p)(4)(B) (waters subject to Federal protection, in whole or in part, for conservation purposes (“federally-protected waters”)). These requirements further prevent or reduce the discharge of pollutants into these waterbodies that may contain unique ecosystems, support distinctive species of aquatic flora and fauna, contend with more sensitive water quality issues, or otherwise require greater protection.

Finally, as required under CWA section 312(p), the final rule contains specific procedural requirements for states to petition EPA to establish different discharge standards, issue emergency orders, or establish a complete prohibition of one or more discharges into specified State waters (“no-discharge zones”). 40 CFR 139.50 through 139.52.

II. Legal Authority

EPA promulgates this rule under CWA sections 301, 304, 307, 308, 312, and 501 as amended by the Vessel Incidental Discharge Act. 33 U.S.C. 1311, 1314, 1317, 1318, 1322, and 1361. This final rule fulfills EPA's obligation under CWA section 312(p) to establish technology-based Federal standards of performance for discharges incidental to the normal operation of primarily non-Armed Forces, non-recreational vessels 79 feet in length and above. This final rule also fulfills EPA's consent decree obligation to sign (and promptly thereafter transmit to the Office of

Federal Register

) a decision taking final action following notice and comment rulemaking with regard to EPA's October 26, 2020, proposed rule pertaining to Federal standards of performance for marine pollution control devices for discharges incidental to the normal operation of a vessel under CWA section 312(p)(4)(A)(i), 33 U.S.C. 1322(p)(4)(A)(i) (Vessel Incidental Discharge National Standards of Performance, 85 FR 67818-01 (proposed October 26, 2020)). (Consent Decree,

Center for Biological Diversity, et al.

v.

Regan, et al.,

Case No. 3:23-cv-535 (N.D. Cal. Dec. 13, 2023).

Under 33 U.S.C. 1369(b)(4)(A), any interested person may file a petition for review of EPA's final agency action under 33 U.S.C. 1322(p). Any such petition may be filed only in the United States Court of Appeals for the District of Columbia Circuit. 33 U.S.C. 1369(b)(4)(B).

III. Background

A. Clean Water Act

The CWA's regulatory regime to control vessel discharges has changed over time. The first sentence of the CWA states, “[t]he objective of [the Act] is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. 1251(a). 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). Among its provisions, the CWA authorizes EPA and other Federal agencies to address the discharge of pollutants from vessels. As such, EPA established regulations to address vessel discharges authorized under CWA section 311 (addressing oil), section 312 (addressing sewage and discharges incidental to the normal operation of a vessel of the Armed Forces), and section 402 (pursuant to which EPA established the VGP).

From 1972 to 2005, EPA vessel regulations were primarily limited to addressing the discharge of oil and sewage under CWA sections 311 and 312, respectively. In December of 2003, a long-standing exclusion of discharges incidental to the normal operation of vessels from the CWA section 402 NPDES permitting program became the subject of a lawsuit in the U.S. District Court for the Northern District of California (

Nw. Envtl. Advocates

v.

EPA,

No. C-03-05760-SI, 2005 WL 756614). The lawsuit arose from EPA's September 2003 denial of a January 1999 rulemaking petition submitted to EPA by parties concerned about the effects of ballast water discharges. Prior to the lawsuit, EPA, through a 1973 regulation, had excluded discharges incidental to the normal operation of vessels from the CWA section 402 permitting program.

See

38 FR 13528, May 22, 1973. The petition asked the Agency to repeal its regulation at 40 CFR 122.3(a) that excludes certain discharges incidental to the normal operation of vessels from the requirement to obtain an NPDES permit. The petition asserted that vessels are “point sources” requiring NPDES permits for discharges to U.S. waters; that EPA lacks authority to exclude point source discharges from vessels from the NPDES program; that ballast water must be regulated under the NPDES program because it contains invasive plant and animal species as well as other materials of concern (

e.g.,

oil, chipped paint, sediment, and toxins in ballast water sediment); and that enactment of CWA section 312(n) (the Uniform National Discharge Standards) in 1996 demonstrated Congress's rejection of the exclusion.

In March 2005, the court determined the exclusion exceeded the Agency's authority under the CWA and subsequently declared in 2006 that

“[t]he blanket exemption for discharges incidental to the normal operation of a vessel, contained in 40 CFR 122.3(a), shall be vacated as of September 30, 2008.”

Nw. Envtl. Advocates

v.

EPA,

C 03-05760 SI, 2006 WL 2669042, at *15 (N.D. Cal. Sept. 18, 2006),

aff'd

537 F.3d 1006 (9th Cir. 2008). Shortly thereafter, Congress enacted two pieces of legislation to exempt discharges incidental to the normal operation of certain types of vessels from the requirement to obtain a permit. The first of these, the Clean Boating Act of 2008 (Pub. L. 110-288, July 28, 2008), amended the CWA to provide that discharges incidental to the normal operation of recreational vessels are not subject to NPDES permitting, and created a new regulatory regime to be implemented by EPA and the USCG under a new CWA section 312(o). The second piece of legislation provided for a temporary moratorium on NPDES permitting for discharges, excluding ballast water, subject to the 40 CFR 122.3(a) exclusion from commercial fishing vessels (as defined in 46 U.S.C. 2101 and regardless of size) and those other non-recreational vessels less than 79 feet in length. S. 3298, Public Law 110-299 (July 31, 2008).

In response to the court decision and the legislation, EPA issued the first VGP in December 2008 for discharges incidental to the normal operation of non-recreational, non-Armed Forces vessels 79 feet in length and above.

See

73 FR 79473, December 29, 2008. Additionally, in September 2014, EPA issued the sVGP for discharges from non-recreational, non-Armed Forces vessels less than 79 feet in length.

See

79 FR 53702, September 10, 2014. Upon expiration of the 2008 permit, EPA issued the second VGP in 2013.

See

78 FR 21938, April 12, 2013.

After the EPA issuance of the VGP under the CWA and the USCG promulgation of regulations under the NANPCA, the vessel community expressed concerns regarding the lack of uniformity, duplication, and confusion associated with the vessel regulatory regime.

See

Errata to S. Rep. No. 115-89 (2019) (“VIDA Senate Report”), at 3-5 (discussing these and similar concerns), available at

https://www.congress.gov/115/crpt/srpt89/CRPT-115srpt89-ERRATA.pdf.

In response, members of Congress introduced various pieces of legislation to modify and clarify the regulation and management of ballast water and other incidental vessel discharges. In December 2018, President Trump signed into law the Frank LoBiondo Coast Guard Authorization Act of 2018, which included the VIDA. Public Law. 115-282, tit. IX (2018) (codified primarily at 33 U.S.C. 1322(p)). The VIDA restructures the way EPA and the USCG regulate incidental vessel discharges from non-Armed Forces, non-recreational vessels and amended CWA section 312 to include a new subsection (p) titled, “Uniform National Standards for Discharges Incidental to Normal Operation of Vessels.” CWA section 312(p), among other things, immediately repealed EPA's 2014 sVGP and requires EPA and the USCG to develop new regulations to replace the existing EPA VGP and USCG vessel discharge requirements.

See generally

33 U.S.C. 1322(p)(9)(C)(i) (repealing sVGP);

id.

(p)(4)(EPA's regulations);

id.

(p)(5) (USCG's regulations). The VIDA also specifies that, effective immediately upon enactment of the VIDA, neither EPA nor NPDES-authorized states may require, or in any way modify, a permit under CWA section 402 (NPDES) for any discharge incidental to the normal operation of a vessel subject to regulation under section 312(p) or from a small vessel (less than 79 feet in length) or fishing vessel (of any size).

Id.

(p)(9)(C)(ii).

Specifically, CWA section 312(p)(4) directs the Administrator, with concurrence of the Secretary

2

and in consultation with interested Governors, to promulgate Federal standards of performance for marine pollution control devices for each type of discharge incidental to the normal operation of non-recreational and non-Armed Forces vessels.

3

CWA section 312(p)(5) also directs the Secretary to develop corresponding implementing regulations to govern the implementation, compliance, and enforcement of the Federal standards of performance. Additionally, CWA section 312(p) generally preempts states from establishing more stringent discharge standards once the USCG implementing regulations required under CWA section 312(p)(5)(A)-(C) are final, effective, and enforceable.

Id.

(p)(9)(A). The VIDA, however, includes several exceptions to this expressed preemption (33 U.S.C. 1322(p)(9)(A)(ii)-(v); VIDA Senate Report, at 15 (discussing these exceptions)) including a savings clause (33 U.S.C. 1322(p)(9)(A)(vi)) and provisions for states working directly with EPA and/or the USCG to pursue additional requirements such as the establishment of no-discharge zones for one or more incidental discharges (33 U.S.C. 1322(p)(10)(D)). The VIDA also establishes several programs to address invasive species, including the establishment of the “Great Lakes and Lake Champlain Invasive Species Program” research and development program and the “Coastal Aquatic Invasive Species Mitigation Grant Program.”

2

Concurrence procedures are governed by 33 U.S.C. 1322(p)(4)(A)(ii). Under those procedures, the Administrator must submit to the Secretary a request for written concurrence with respect to a proposed standard of performance. If the Secretary fails to concur, it does not prevent the Administrator from promulgating standard of performance, but does require the Administrator to respond to the Secretary's written objections.

3

CWA section 312(b) provides authority for EPA to establish Federal standards of performance for sewage from vessels within the meaning of “sewage” as defined in section 312(a)(6). Thus, the discharge of sewage from vessels, is not included in this CWA section 312(p) rulemaking, except when commingled with other discharges incidental to the normal operation of a vessel, as authorized in CWA section 312(p)(2)(A)(ii). EPA and the USCG regulate sewage from vessels under CWA section 312(b) as codified in 40 CFR part 140 (marine sanitation device standard) and 33 CFR part 159 subparts A through D (requirements for the design, construction, certification, installation, and operation of marine sanitation devices).

B. Additional U.S. and International Authorities

During the development of the final rule, EPA reviewed other U.S. laws and international authorities that address discharges incidental to the normal operation of a vessel. Where the requirements established under these authorities are currently being met and implemented, EPA generally considers them to be technologically available and economically achievable as that term is used in the “best available technology economically achievable” control level specified in CWA section 301(b). As appropriate, EPA considered these requirements while developing this final rule.

As expressly provided in the VIDA, this final rule will not affect the requirements for vessels established under any other provision of Federal law. 33 U.S.C. 1322(p)(9)(B). EPA provides a short summary of these U.S. authorities, as well as some international authorities, below.

International Convention for the Prevention of Pollution From Ships, the Act To Prevent Pollution from Ships, and Implementing Regulations

The International Convention for the Prevention of Pollution from Ships (MARPOL 73/78) is an international treaty that regulates certain discharges from vessels. MARPOL Annexes regulate different types of vessel pollution; the United States is a party to Annexes I, II, III, V, and VI that address prevention/control of pollution from oil, noxious liquid substances in bulk, harmful substances carried by sea in packaged form, and garbage, and

prevention of air pollution, respectively. MARPOL is primarily implemented in the United States by APPS, 33 U.S.C. 1901

et seq.

The USCG is the lead agency for APPS implementation and issued implementing regulations primarily found at 33 CFR part 151. Those requirements already apply to many of the vessels covered by the final rule.

APPS regulates the discharge of oil and oily mixtures, noxious liquid substances, and garbage, including food wastes and plastic. With respect to oil and oily mixtures, the USCG regulations at 33 CFR 151.10 prohibit “any discharge of oil or oily mixtures into the sea from a ship” except when certain conditions are met. Exceptions include a discharge oil content of less than 15 parts per million (ppm) and when the ship operates oily water separating equipment, a bilge monitor, a bilge alarm, or a combination thereof.

Substances regulated as noxious liquid substances under APPS are divided into four categories based on their potential to harm marine resources and human health. Under 46 CFR 153.1128, discharges of noxious liquid substances residues at sea may only take place at least 12 nautical miles (NM) from the nearest land, among other requirements. Because discharges at least 12 NM from the nearest land are outside the geographic scope of the VIDA, the final rule does not affect the requirements for vessels established under 46 CFR 153.1128 pursuant to APPS.

MARPOL Annex III addresses harmful substances in packaged form and is implemented in the United States by the Hazardous Materials Transportation Authorization Act of 1994, as amended (49 U.S.C. 5901

et seq.

), and regulations appearing at 46 CFR part 148 and 49 CFR part 176. The regulatory provisions establish labeling, packaging, and stowage requirements for such materials to help avoid accidental loss or spillage during transport. The final rule does not regulate loss or spillage of transported materials; however, the final rule establishes BMPs to help reduce or prevent the loss of materials and debris overboard.

Oil Pollution Act (33 U.S.C. 2701

et seq.

)

The Oil Pollution Act of 1990 and the associated USCG implementing regulations at 33 CFR parts 155 and 157 also address oil and oily mixture discharges from vessels. These USCG regulations establish and reinforce the 15 ppm discharge standard under APPS for oil and oily mixtures for seagoing ships and require most vessels to have an oily water separator. Oceangoing vessels of less than 400 gross tonnage (GT) must either have an approved oily water separator or retain oily water mixtures on board for disposal to an approved reception facility onshore. Oceangoing vessels of 400 GT and above, but less than 10,000 GT, except vessels that carry ballast water in their fuel oil tanks, must be fitted with “approved 15 parts per million (ppm) oily-water separating equipment for the processing of oily mixtures from bilges or fuel oil tank ballast.” 33 CFR 155.360(a)(1). Oceangoing ships of 10,000 gross tonnage and above and oceangoing ships of 400 gross tonnage and above that carry ballast water in their fuel oil tanks, must be fitted with approved 15 ppm oily water separating equipment for the processing of oily mixtures from bilges or fuel oil tank ballast, a bilge alarm, and a means for automatically stopping any discharge of oily mixture when the oil content in the effluent exceeds 15 ppm. 33 CFR 155.370. 33 CFR part 155 also references oil containment and cleanup equipment and procedures for preventing and reacting to oil spills and discharges. The final rule is consistent with the existing requirements for fuel and oil established under the Oil Pollution Act and APPS and does not otherwise affect the requirements for vessels established under these Acts.

Clean Water Act Section 311 (33 U.S.C. 1321)

CWA section 311, the Oil and Hazardous Substances Liability Act, states that it is a policy of the United States that there should be no discharges of oil or hazardous substances into the waters of the United States, adjoining shorelines, and certain specified areas, except where permitted under Federal regulations (

e.g.,

the NPDES program). As such, the Act prohibits the discharge of oil or hazardous substances into these areas in such quantities as may be harmful. Further, the Act states that the President shall, by regulation, determine those quantities of oil and any hazardous substances that may be harmful if discharged. EPA defines the discharge of oil in such quantities as may be harmful as those that violate applicable water quality standards or “cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines or cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines.” 40 CFR 110.3. Sheen is clarified to mean “an iridescent appearance on the surface of the water.” 40 CFR 110.1. The final rule prohibits the discharge of oil, including oily mixtures, in such quantities as may be harmful. 40 CFR 139.56(c).

Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq.).

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) regulates the distribution, sale, and use of pesticides. One of the primary components of FIFRA requires the registration and labeling of all pesticides sold or distributed in the United States, ensuring that, if pesticides are used in accordance with the specifications on the label, they will not cause unreasonable adverse effects on humans or the environment. The final rule reiterates the VGP requirement that any registered pesticide must be used in accordance with its FIFRA label for all activities that result in a discharge into the waters of the United States or the waters of the contiguous zone. 40 CFR 139.4(b)(5)(iii). The final rule does not negate the requirements under FIFRA and its implementing regulations to use registered pesticides consistent with the product's labeling. In fact, the discharge of pesticides used in violation of certain FIFRA requirements incorporated into this rule is also a violation of these standards, and therefore a violation of the CWA (

e.g.,

exceeding hull coating application rates).

National Marine Sanctuaries Act (16 U.S.C. 1431

et seq.

and Implementing Regulations Found at 15 CFR Part 922 and 50 CFR Part 404)

The National Marine Sanctuaries Act (NMSA) authorizes the designation and management of National Marine Sanctuaries to protect marine resources with conservation, education, historical, scientific, and other special qualities. Under NMSA, additional restrictions and requirements may be imposed on vessel operators that operate in and around National Marine Sanctuaries. Consistent with the VGP, the final rule establishes additional restrictions and requirements for certain discharges for vessels that operate in and around National Marine Sanctuaries as these areas are included in the definition of “federally-protected waters” in the final rule and listed in appendix A of part 139. Pursuant to CWA sections 312(p)(9)(B) and (E), discharge requirements established by regulations promulgated by the Secretary of Commerce under the National Marine Sanctuaries Act would continue to apply to waters under the control of the Secretary of Commerce (

e.g.,

National Marine Sanctuaries), in addition to the standards and requirements established in this final rule.

C. Environmental Impacts of Discharges for Which Technology-Based Discharge Standards Are Established by This Rule

While the VIDA requires EPA to establish technology-based standards, which do not consider the effects on receiving water quality (as discussed in greater detail in section VIII.,

Final Federal Discharge Standards of Performance

), EPA is presenting to the public information about the following pollutants found in vessel discharges: ANS, nutrients, pathogens, oil and grease, metals, toxic and nonconventional pollutants with toxic effects, and other nonconventional and conventional pollutants. Information regarding water-quality impacts of these discharges and associated pollutants were not considered in the development of Federal standards of performance representing best available technology economically achievable, as established in this rule. EPA presents this information because the public may be interested in it and it informs the Economic Analysis that characterizes the potential benefits associated with this rule.

Discharges incidental to the normal operation of vessels can have significant adverse impacts on aquatic ecosystems and other potential impacts such as to human health through contamination of food from aquaculture/shellfish harvesting areas through the addition of pollutants. The adverse environmental impacts vary considerably based on the type and number of vessels, the size and location of the port or marina, and the condition of the receiving waters. These adverse impacts are more likely to occur when there are significant numbers of vessels operating in receiving waters with limited circulation or if the receiving waters are already impaired. As a result of this variation, protecting U.S. waters from vessel-related activities poses unique challenges for local, State, and Federal Governments.

1. Aquatic Nuisance Species (ANS)

ANS, which can include invasive plants, animals, and pathogens, are a persistent problem in U.S. coastal and inland waters. The VIDA specifically includes ANS in the category of nonconventional pollutants to be regulated through the application of best available technology and best practicable technology. 33 U.S.C. 1322(p)(4)(B)(i).

ANS may be incidentally discharged or released from a vessel's operations through a variety of vessel systems and equipment, including but not limited to ballast water, sediment from ballast tanks, vessel hulls and appendages, seawater piping, chain lockers, and anchor chains. ANS pose severe threats to aquatic ecosystems, including outcompeting native species, damaging habitat, changing food webs, and altering the chemical and physical aquatic environment. Furthermore, ANS can have profound and wide-ranging socioeconomic impacts, such as damage to recreational and commercial fisheries, infrastructure, and water-based recreation and tourism. Once established, it is extremely challenging and costly to remove ANS and remediate the impacts. It has become even more critical to control discharges of ANS from vessel systems and equipment with the increase in vessel traffic due to globalization and increased trade.

2. Nutrients

Nutrients, including nitrogen, phosphorus, and other micro-nutrients, are constituents of incidental discharges from vessels. Though often associated with discharges from sewage treatment facilities and other sources such as runoff from agricultural and urban stormwater sources, nutrients are also discharged from vessel sources such as runoff from deck cleaning, graywater, and bilgewater.

Increased nutrient discharges from anthropogenic sources are a major source of water quality degradation throughout the United States (U.S. Geological Survey, 1999). Generally, nutrient over-enrichment of waterbodies adversely impacts biological diversity, fisheries, and coral reef and seagrass ecosystems (National Research Council, 2000). One of the most notable effects of nutrient over-enrichment is the excess proliferation of plant life and ensuing eutrophication. A eutrophic system has reduced levels of dissolved oxygen and increased turbidity which can lead to changes in the composition of aquatic flora and fauna. Such conditions also fuel harmful algal blooms, which can have significant adverse impacts on human health as well as aquatic life (National Research Council, 2000; Woods Hole Oceanographic Institute, 2007).

3. Pathogens

Pathogens-those bacteria, viruses, and other microorganisms that can cause disease—can be found in discharges from vessels, particularly in graywater and ballast water discharges. Discharges of pathogens into waterbodies can adversely impact local ecosystems, fisheries, and human health. Pathogens found in untreated graywater are similar to, and in some cases may have a higher concentration than, domestic sewage entering land-based wastewater treatment plants (U.S. EPA, 2008; 2011d). Specific pathogens of concern found in graywater include

Salmonella

spp.,

Escherichia coli,

enteroviruses, hepatitis, and pathogenic protists (National Research Council, 1993). Additional pathogen discharges have also been associated with ballasting operations, including

Escherichia coli,

intestinal enterococci,

Vibrio cholerae, Clostridium perfringens, Salmonella

spp.,

Cryptosporidium

spp.,

Giardia

spp., and a variety of viruses (Knight et al., 1999; Reynolds et al., 1999; Zo et al., 1999). Pathogens can potentially be transported in unfilled ballast water tanks (Johengen et al., 2005). Under the VIDA, bacterial and viral pathogens can qualify as “aquatic nuisance species.” 33 U.S.C. 1312(p)(1)(A), (Q), (R) (defining the related terms “aquatic nuisance species,” “nonindigenous species,” and “organism”).

4. Oil and Grease

Vessels can discharge a variety of oils during normal operations, including lubricating oils, hydraulic oils, and vegetable or organic oils. A significant portion of the lubricants discharged from a vessel during these normal operations directly enters the aquatic environment. Some types of oil and grease can be highly toxic and carcinogenic, and have been shown to alter the immune system, reproductive abilities, and liver functions of many aquatic organisms (Ober, 2010). Broadly, the toxicity of oil and grease to aquatic life is due to reduced oxygen transport potential and an inability of organisms to metabolize and excrete oil and grease once ingested, absorbed, or inhaled.

The magnitude of impact of oils differs depending on the chemical composition, method of exposure, concentration, and environmental conditions (

e.g.,

weather, salinity, temperature). It can therefore be difficult to identify one single parameter responsible for negatively impacting aquatic life.

Aromatic hydrocarbon compounds, commonly present in fuels, lubricants, and additives, are consistently associated with acute toxicity and harmful effects in aquatic biota (Dupuis and Ucan-Marin, 2015). Impacts are observed in both developing and adult organisms, and include reduced growth, enlarged livers, fin erosion, reproduction impairment, and modifications to heartbeat and respiration rates (Dupuis and Ucan-Marin, 2015). Laboratory experiments have shown that fish embryos exposed to hydrocarbons exemplify symptoms collectively referred to as blue sac

disease. Symptoms of the disease range from reduced growth and spinal abnormalities, to hemorrhages and mortality (Dupuis and Ucan-Marin, 2015). Oils can also taint organisms that are consumed by humans, resulting in economic impacts to fisheries and potential human health effects.

In establishing the final rule, EPA considered the availability of environmentally acceptable lubricants (EALs). Production of EALs focuses on using chemicals with oxygen atoms which increases their water solubility and biodegradability, thereby decreasing their accumulation in the aquatic environment. The solubility of EALs also makes it easier for aquatic life to metabolize and excrete these chemicals (U.S. EPA, 2011). Overall, EALs reduce the bioaccumulation potential and toxic effects to aquatic life.

5. Metals

Vessel discharges can contain metal constituents from a variety of onboard sources, including graywater, bilgewater, exhaust gas emission control systems, and firemain systems. While some metals, including copper, nickel, and zinc, are known to be essential to organism function when present at certain levels, many others, including mercury, lead, thallium, and arsenic, are non-essential and/or are known to have only adverse impacts. Even essential metals may harm organism function in sufficiently elevated concentrations. Some metals may also bioaccumulate in the tissues of aquatic organisms, intensifying toxic effects. Through a process called biomagnification, concentrations of some metals can increase up the food chain, leading to elevated levels in commercially harvested fish species (U.S. EPA, 2007). Exposure to metals through fish consumption or other exposure pathways may have adverse human health effects (U.S. EPA, 2007). For example, exposure to elevated levels of methylmercury is associated with developmental and neurological effects, while exposure to lead is known to cause a range of health effects, from behavioral problems and learning disabilities to seizures and death (U.S. EPA, 2024 and 2024a). Additionally, ingestion of arsenic may lead to increased risk of cancer in the skin, liver, bladder, and lungs, as well as nausea, vomiting, abnormal heart rhythm, and damage to blood vessels (Agency for Toxic Substances and Disease Registry, 2007).

Vessel hulls and appendages are frequently coated in metal-based biocides to prevent biofouling. The most widely-used metal in biocides is copper. While it is an essential nutrient, copper can be both acutely and chronically toxic to fish, aquatic invertebrates, and aquatic plants at higher concentrations. Elevated concentrations of copper can adversely impact survivorship, growth, and reproduction of aquatic organisms (U.S. EPA, 2016). Copper can inhibit photosynthesis in plants and interfere with enzyme function in both plants and animals in concentrations as low as 4 micrograms (µg)/L (U.S. EPA, 2016).

6. Other Pollutants

Vessel discharges can contain a variety of other toxic, conventional, and nonconventional pollutants. This rule is intended to prevent and control the discharge of certain pollutants that have been identified in the various discharges. For example, graywater can contain phthalates phenols, and chlorine (U.S. EPA, 2008). These compounds can cause a variety of adverse impacts on aquatic organisms and human health. Phthalates are known to interfere with reproductive health, liver, and kidney function in both animals and humans. (Sekizawa et al., 2003; DiGangi et al., 2002). Chlorine can cause respiratory problems, hemorrhaging, and acute mortality to aquatic organisms, even at relatively low concentrations (U.S. EPA, 2008).

Vessel discharges may also contain certain biocides used in vessel coatings, which can be harmful to aquatic organisms. For example, cybutryne, also commonly known as Irgarol 1051, is a biocide that functions by inhibiting the electron transport mechanism in algae, thus inhibiting growth. Numerous studies indicate that cybutryne is both acutely and chronically toxic to a range of marine organisms, and in certain cases, more harmful than tributyltin (Carbery et al, 2006; Van Wezel and Van Vlaardingen, 2004).

Some vessel discharges are more acidic or basic than the receiving waters, which can have a localized effect on pH (Alaska Department of Environmental Conservation, 2007). For example, exhaust gas emission control systems remove sulfur dioxide in exhaust gas and dissolve it in washwater, where it is then ionized and produces an acidic washwater. Research has shown that even minor changes in ambient pH can have profound effects, such as developmental defects, reduced larval survivorship, and decreased calcification of corals and shellfish (Oyen et al., 1991; Zaniboni-Filho et al., 2009, Marubini and Atkinson, 1999).

IV. Scope of the Regulatory Action

A. Waters

The final rule applies to discharges into the waters of the United States or the waters of the contiguous zone. 33 U.S.C. 1322(p)(8)(B). Sections 502(7), 502(8), and 502(9) of the CWA define the terms “navigable waters,” “territorial seas,” and “contiguous zone,” respectively. 33 U.S.C. 1362(7)-(9). The term “navigable waters” means the waters of the United States including inland waters and the territorial seas, where the United States includes the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the Trust Territories of the Pacific Islands.

Id.

(7). The term “territorial seas” means the belt of seas that extends three miles seaward from the line of ordinary low water along the portion of the coast in direct contact with the open sea and the line marking the seaward limit of inland waters.

Id.

(8). For simplicity, EPA uses the term “shore” to refer to the line of ordinary low water referenced in the foregoing definition for “territorial seas.” The term “contiguous zone” means the entire zone established or to be established by the United States under Article 24 of the Convention of the Territorial Sea and the Contiguous Zone, which extends 12 NM under Article 24 of the Convention of the Territorial Sea and the Contiguous Zone.

Id.

(9).

B. Vessels

The final rule applies to discharges incidental to the normal operation of any non-Armed Forces, non-recreational vessels as set forth in CWA section 312(p)(2). The final rule does not apply to discharges incidental to the normal operation of a vessel of the Armed Forces subject to CWA section 312(n); a recreational vessel subject to CWA section 312(o); a small vessel less than 79 feet in length or a fishing vessel, except that the rule applies to any discharge of ballast water from a small vessel less than 79 feet or fishing vessel; or a floating craft that is permanently moored to a pier, including a floating casino, hotel, restaurant, or bar. 33 U.S.C. 1322(p)(2)(B)(i). The types of vessels covered under the final rule include but are not limited to public vessels of the United States, commercial fishing vessels (for ballast water only), passenger vessels (

e.g.,

cruise ships and ferries), barges, tugs and tows, offshore supply vessels, mobile offshore drilling units, tankers, bulk carriers, cargo ships, container ships, and research vessels.

The domestic and international vessel population that is subject to the Federal standards of performance includes approximately 82,000 vessels. The final rule also does not apply to a narrow category of specified ballast water discharges that Congress believed do not pose a risk of spreading or introducing ANS (33 U.S.C. 1322(p)(2)(B)(ii); VIDA Senate Report, at 10), or to any discharges that result from (or contain material derived from) an activity other than the normal operation of a vessel (33 U.S.C. 1322(p)(2)(B)(iii)). Unless otherwise provided by CWA section 312(p), any incidental discharges excluded from regulation in the VIDA remain subject to the pre-enactment status quo (

e.g.,

State law, NPDES permitting, etc.). VIDA Senate Report, at 10.

The Federal standards of performance herein apply equally to new and existing vessels except in such cases where the final rule expressly distinguishes between such vessels, as authorized by CWA section 312(p)(4)(C)(ii).

C. Incidental Discharges

The final rule establishes general and specific Federal standards of performance for discharges incidental to the normal operation of a vessel described in CWA section 312(p)(2). The general standards apply to all vessels and all incidental discharges subject to regulation under CWA section 312(p). The specific standards apply to specific discharges incidental to the normal operation of the following types of vessel equipment and systems: ballast tanks, bilges, boilers, cathodic protection, chain lockers, decks, desalination and purification systems, elevator pits, exhaust gas emission control systems, fire protection equipment, gas turbines, graywater systems, hulls and associated niche areas, inert gas systems, motor gasoline and compensating systems, non-oily machinery, pools and spas, refrigerators and air conditioners, seawater piping, and sonar domes.

D. Emergency and Safety Concerns

The VIDA recognizes that safety of life at sea and other emergency situations not resulting from the negligence or malfeasance of the vessel owner, operator, master, or person in charge may arise, and that the prevention of loss of life or serious injury may require operations that would not otherwise be consistent with these standards. Therefore, no person would be found to be in violation of the final rule if they qualify for the affirmative defense described in CWA section 312(p)(8)(C).

E. Effective Date

The effective date of this rule is 30 days after publication in the

Federal Register

; however, the Federal standards of performance become effective beginning on the date upon which the regulations promulgated by the Secretary pursuant to CWA section 312(p)(5) governing the implementation, compliance, and enforcement of the Federal standards of performance become final, effective, and enforceable. Per CWA section 312(p)(3)(c), as of that date, the requirements of the VGP and all regulations promulgated by the Secretary pursuant to Section 1101 of the NANPCA (16 U.S.C. 4711) (as in effect on December 3, 2018), including the regulations contained in subparts C and D of 33 CFR part 151 and 46 CFR 162.060 (as in effect on December 3, 2018), shall be deemed repealed and have no force or effect. Similarly, as of that same date, any CWA section 401 certification requirement in Part 6 of the VGP, shall be deemed repealed and have no force or effect.

V. Stakeholder Engagement

During the development of the rule, EPA and the USCG engaged other Federal agencies, States, Tribes, non-governmental organizations, the general public, and the maritime industry. On October 26, 2020, EPA published a Notice of Proposed Rulemaking (“proposed rule,” 85 FR 67818) in the

Federal Register

for public comment. Following publication of the proposed rule, EPA re-engaged with the states through the VIDA's Governors consultation process to discuss topics for which the states expressed an interest in further collaboration and conducted post-proposal outreach to States, Tribes, and interested stakeholders from environmental organizations and the regulated community to obtain additional clarification regarding their concerns with the proposed rule. Subsequently, on October 18, 2023, EPA published in the

Federal Register

a Supplemental Notice of Proposed Rulemaking (“supplemental notice,” 88 FR 71788) for public comment that presented ballast water management system (BWMS) type-approval data that EPA received from the USCG since the proposed rule. The supplemental notice also included additional regulatory options that EPA was considering for discharges from ballast tanks, hulls and associated niche areas, and graywater systems. General summaries of the outreach are included in this section and in section XII.,

Statutory and Executive Order Reviews.

Detailed documentation is also available in the docket.

A. Informational Webinars and Public Listening Sessions

EPA, in coordination with the USCG, hosted two informational webinars on May 7 and 15, 2019 to enhance public awareness about the VIDA and provide opportunity for engagement. During the webinars, EPA and the USCG provided a general overview of the VIDA, discussed interim and future discharge requirements, described future State and public engagement opportunities, and answered clarifying questions raised by the audience. The webinar recordings and presentation material are available at

https://www.epa.gov/vessels-marinas-and-ports/vessel-incidental-discharge-act-vida-engagement-opportunities.

Additionally, EPA, in coordination with the USCG, hosted a public, in-person listening session at the U.S. Merchant Marine Academy in New York on May 29-30, 2019. At the listening session, EPA, with the support of the USCG, provided an overview of the VIDA, described the interim requirements and the framework for the future regulations, and conducted sessions on key vessel discharges to provide an opportunity for public input. Fifty-two individuals from a variety of stakeholder groups attended and provided input. Public input largely centered on BWMSs, including testing methods and monitoring requirements. Stakeholders requested harmonization of domestic regulations with those of the International Maritime Organization (IMO), such as standards for exhaust gas emission control systems. Input was also received on challenges with compliance and reporting under the VGP and the USCG ballast water regulations. The meeting agenda and a summary of the comments received are available in the docket.

During the public comment period for both the proposed rule and supplemental notice, EPA held public meetings to describe procedures for submitting comments on the rule and provide an opportunity for stakeholders to ask clarifying questions. Details and materials from these public meetings are available at

https://www.epa.gov/vessels-marinas-and-ports/vessel-incidental-discharge-act-vida-stakeholder-engagement-opportunities.

B. Consultation and Coordination With States

1. Federalism Consultation and Governors Consultation

As noted in the proposed rule, EPA concluded that this action has

federalism implications pursuant to the terms of Executive Order 13132. As such, EPA consulted with State and local officials early in the development of this rule. On July 9, 2019, in Washington, DC, EPA and the USCG conducted a Federalism consultation briefing to allow states and local officials to have meaningful and timely input into EPA's rulemaking for the development of the Federal standards of performance. Additional information regarding the VIDA Federalism Consultation can be found in section XII.

Statutory and Executive Order Reviews.

In addition, CWA section 312(p)(4)(A)(iii)(II) directs EPA to develop a process for soliciting input from interested Governors to inform the development of the Federal standards of performance, including sharing information relevant to the process. On July 10 and 18, 2019, EPA and the USCG, with the support and assistance of the National Governors Association, held meetings with Governors' representatives to provide an overview of the VIDA, discuss State authorities under the VIDA, and solicit input on a process that would meet both the statutory requirements and State needs. Based on this input, EPA developed a process to obtain Governors' input on the rulemaking. Thirteen states (Alaska, California, Hawaii, Maryland, Michigan, Minnesota, New York, North Carolina, Ohio, Puerto Rico, Virginia, Washington, and Wisconsin) participated in the process, as did representatives from the Western Governors Association, the Pacific States Marine Fisheries Commission, and the All Islands Coral Reef Committee.

To obtain Governors' input, EPA hosted three regional, web-based forums for Governors and their representatives to inform EPA early in the development of the proposed rule on the challenges and concerns associated with existing requirements under the VGP and to discuss potential considerations for key discharges of interest. The forums were held in 2019 on September 10 for West Coast states, September 12 for Great Lakes states, and September 19 for all states. During each forum, subject-matter experts from EPA provided a brief background on the VIDA followed by organized discussions regarding the key discharges identified by the regional representatives prior to the forum. During the organized discussions, interested Governors' representatives commented on the presentation content, shared applicable scientific or technical information, and provided suggestions for EPA to consider during the development of the Federal standards of performance. In addition to the verbal input provided during the forums, EPA accepted written comments. Copies of those written comments are included in the docket.

On December 18, 2019, EPA held two follow-up calls with representatives from the Great Lakes states. During each call, EPA addressed the comments that had been submitted by the Great Lakes states, including comments on specific requirements of the VIDA, non-ballast water discharges, and best available technology as it relates to BWMSs. Representatives from Illinois, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin attended the calls.

EPA also held a follow-up call with representatives from the West Coast states on January 15, 2020. During the call, EPA addressed the comments that had been submitted by West Coast states, including comments on outreach and engagement, the best available technology analysis for BWMSs, and regulation of biofouling and in-water cleaning and capture devices. Representatives from California, Hawaii, Oregon, and Washington, as well as representatives from the Pacific States Marine Fisheries Commission and the Western Governors Association, attended the call.

After the public comment period concluded for the proposed rule, EPA met with State representatives to discuss topics of interest between June and October 2021 to inform the supplemental notice.

During the engagement with states, EPA received pre-proposal comments, as well as post-proposal comments on the proposed rule and supplemental notice, from states, Governors, and Governors' representatives. Comments were received from representatives from Alabama, Alaska, American Samoa, California, the Commonwealth of the Northern Mariana Islands, Connecticut, Delaware, Florida, Guam, Hawaii, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Puerto Rico, Rhode Island, U.S. Virgin Islands, Virginia, Washington, Wisconsin, and the Western Governors Association. Comments on the proposed rule primarily focused on ballast water, biofouling, and the State engagement process, while comments on the supplemental notice focused on EPA's analysis of newly obtained ballast water data and the additional regulatory options presented for ballast tanks, hulls and associated niche areas, and graywater systems. These comments can be found in the docket.

2. Governor Objections

In conjunction with the requirement to engage states in the development of the proposed standards, CWA section 312(p)(4)(A)(iii)(III) provides an avenue for Governors to formally object to a proposed Federal standard of performance. An interested Governor may submit to the Administrator a written, detailed objection to the proposed Federal standard of performance, describing the scientific, technical, and operational factors that form the basis of the objection. Before finalizing a Federal standard of performance for which there has been an objection from one or more interested Governors, the CWA requires the Administrator to provide a written response to the objection detailing the scientific, technical, or operational factors that form the basis for that standard.

EPA received five objection letters from the Governors of California, Hawaii, Michigan, Minnesota, and Washington. One or more of these states objected to aspects of the proposed Federal standard of performance for ballast tanks, biofouling management, chain lockers, decks, exhaust gas emission control systems, fire protection equipment, graywater systems, hulls and associated niche areas, and procedures for states to request changes to standards, regulations, or policy promulgated by the Administrator. In the objection letters, Governors also raised concerns outside of the scope of specific Federal standards of performance, such as the timing and substance of State consultation and purported inconsistency with State water quality standards. EPA addressed specific comments and concerns raised by these five states in the relevant topical sections of the Comment Response Document available in the docket. Consistent with the CWA, the Administrator responded to these Governors in writing prior to the publication of this final rule.

VI. Public Comments Received and Agency Responses

EPA received 28,701 comments on the proposed rule and 45,820 comments on the supplemental notice for a total of 74,521 comments received. Of these, 292 comments were unique, while the remaining comments were received from participants in mass mailer campaigns. The majority of comments addressed proposed requirements for specific discharges, though comments also contained feedback on general

topics of concern, such as stakeholder engagement. EPA fully considered comments and, where appropriate, made changes to the final rule to reflect comments received. The sections below describe those changes to the final rule and a comprehensive Comment Response Document is available in the docket.

VII. Definitions

The final rule includes definitions for several statutory, regulatory, and technical terms. 40 CFR 139.2. These definitions apply solely for the purposes of this final rule and do not affect the definitions of any similar terms used in any other context. Where possible, EPA relied on existing definitions from other laws, regulations, and the VGP to provide consistency with existing requirements. Many of the definitions are taken either verbatim or with minor clarifying edits from the VIDA, the legislation which this final rule implements. This includes definitions for: aquatic nuisance species (ANS), ballast water, ballast water exchange, ballast water management system (BWMS), Captain of the Port (COTP) Zone, commercial vessel—as that term is used for vessels operating within the Pacific Region, empty ballast tank, Great Lakes State, internal waters, live or living, marine pollution control device, organism, Pacific Region, port or place of destination, render nonviable, saltwater flush, Secretary, small vessel or fishing vessel (and the term “fishing vessel” to direct the reader to the definition of “small vessel or fishing vessel”), and VGP.

EPA included definitions from other sections of the CWA, USCG regulations, the VGP, and other regulations, as well as new definitions specific to this final rule. EPA modified some of the definitions in the proposed rule based on public comments. Terms not defined in the final rule have the meaning defined under the CWA and applicable regulations.

Definitions for the following terms were added to provide clarity and ensure that the associated regulations are understood by the regulated community: active discharge of biofouling, anti-fouling coating, anti-fouling system, ferry, fire protection equipment, in-water cleaning with capture (IWCC), in-water cleaning without capture, macrofouling, marine inspector, microfouling, new ferry, passenger vessel, passive discharge of biofouling, and seawater piping system (

See

also the comment response sections for 40 CFR 139.21,

Graywater systems,

40 CFR 139.22,

Hulls and associated niche areas,

40 CFR 139.28,

Seawater piping,

and 40 CFR 139.19,

Fire protection equipment

). In response to public comments, the final rule slightly revises the definitions of “macrofouling” and “microfouling” from the definitions presented in the supplemental notice to provide additional clarity and consistency. It also dispenses with the use of the Navy Fouling Rating scale in favor of the terms macrofouling and microfouling (

See

also the comment response for 40 CFR 139.28,

Seawater piping).

Several definitions were modified from the proposed rule. The definition for “Marine Growth Prevention System (MGPS)” now references the added definition for “seawater piping system,” while EPA modified the definition for “niche areas” to add clarity and remove language that would be confusing within the context of the VIDA (

See

also the comment response section for 40 CFR 139.22,

Hulls and associated niche areas

). In response to concerns raised by commenters, the definition for “organism” was modified to replace the word “means” with “includes,” consistent with the CWA definition. Definitions for “oil-to-sea interface,” “EAL,” and “reception facility” were modified slightly to provide additional clarity for the regulated community (

See

also the comment response section for 40 CFR 139.6,

Oil management

). “Captain of the Port Zone” now includes references to other United States Code for additional clarity and consistency (

See

also the comment response for Subpart A—Scope). The definition for “midocean” was modified slightly to maintain consistency within the final rule (

See

also the comment response section for 40 CFR 139.10,

Ballast tanks

). Finally, EPA removed the definition for “scheduled drydocking” as that term is not used in the final rule.

VIII. Final Federal Discharge Standards of Performance

In adopting CWA section 312(p)(4)(B)(i), Congress directed EPA to promulgate Federal standards of performance for conventional pollutants, toxic pollutants, and nonconventional pollutants (including ANS). The VIDA cross-references existing statutory standards in the CWA at sections 301 and 304 of the CWA (as well as EPA's implementing regulations at 40 CFR 125.3), which indicates that Congress intended for EPA to base the VIDA standards of performance on the same statutory considerations as those applicable when setting technology-based effluent limits for permits under CWA section 402.

4

The provisions cited in the VIDA (CWA sections 301(b) and 304, 33 U.S.C. 1311(b) and 1314), are the basis for EPA's development of effluent limitations guidelines, which are national performance-based requirements established by regulation for categories of point sources based on degree of control that can be achieved using various levels of pollution control technology, as specified in the CWA. Thus, many of the same legal standards and considerations that apply to the development of technology-based effluent limitation guidelines also apply to the development of the VIDA's Federal standards of performance.

4

The VIDA does not reference CWA section 306 for new source standards, meaning that the CWA “best available demonstrated control technology” standard does not apply to new sources regulated by the VIDA.

The CWA and its legislative history of CWA sections 301(b) and 304(b) (33 U.S.C. 1311(b) and 1314(b)), describe the need to press toward higher levels of control through research and development of new processes, modifications, replacement of obsolete plants and processes, and other improvements in technology, taking into account the cost of controls to “require elimination of pollutant discharges . . . if the Administrator finds, on the basis of information available to him, . . . that such elimination is technologically and economically achievable for a category or class of point sources as determined in accordance with regulations issued by the Administrator . . .”. 33 U.S.C. 1311(b)(2)(A). The legislative history and case law also support that EPA does not consider water quality impacts on individual water bodies as technology-based standards are developed (Statement of Senator Muskie, October 4, 1972, reprinted in

A Legislative History of the Water Pollution Control Act Amendments of 1972,

at 170. (U.S. Senate, Committee on Public Works, Serial No. 93-1, January 1973);

Southwestern Elec. Power Co.

v.

EPA,

920 F.3d at 1005, “The Administrator must require industry, regardless of a discharge's effect on water quality, to employ defined levels of technology to meet effluent limitations.” (citations and internal quotations omitted).

The CWA establishes a two-step process for implementation of increasingly stringent technology-based effluent limitations. The first step requires compliance with standards based on“the application ofthe best practicable control technology currently available [BPT] as defined by the Administrator . . .” 33 U.S.C. 1311(b)(1)(A). The second step requires

compliance with standards based on application of the “best available technology economically achievable [BAT] for such category or class . . .” 33 U.S.C. 1311(b)(2)(A). The CWA, as amended in 1977, replaced the BAT standard with a new standard, “best conventional pollutant control technology [BCT],” but only for certain “conventional pollutants” (

i.e.,

BOD, TSS, oil and grease, fecal coliform, and pH).

See

33 U.S.C. 1311(b)(2)(E) and 1314(a)(4) and 40 CFR 401.16.

The CWA requires consideration of BPT for conventional, toxic, and nonconventional pollutants. CWA section 304(a)(4) designates the following as conventional pollutants: BOD, TSS, fecal coliform, and pH, and any additional pollutants defined by the Administrator as conventional. The Administrator designated oil and grease as an additional conventional pollutant on July 30, 1979. 40 CFR 401.16. Toxic pollutants (

e.g.,

toxic metals such as arsenic, mercury, selenium, and chromium; toxic organic pollutants such as benzene, benzo-a-pyrene, phenol, and naphthalene) are those outlined in CWA section 307(a) and subsequently identified in EPA regulations at 40 CFR 401.15 and 40 CFR part 423 appendix A. All other pollutants are nonconventional, including aquatic nuisance species. (33 U.S.C. 1322(p)(4)(B)(i)(III)).

In determining BPT, under CWA sections 301(b)(1)(A) and 304(b)(1)(B), and 40 CFR 125.3(d)(1), EPA evaluates several factors. EPA first considers the cost of application of currently available technology in relation to the effluent reduction benefits. Traditionally, as is consistent with the statute, its legislative history, and caselaw, EPA defines “currently available” based on the average of the best performance of facilities within the industry, grouped to reflect various ages, sizes, processes, or other common characteristics (

Chem. Mfrs. Assn.

v.

EPA,

870 F.2d 177, 207-208 (5th Cir. 1989)). The Agency also considers the age of equipment and facilities, the processes employed, engineering aspects of various types of control techniques, process changes, non-water quality environmental impacts (including energy requirements), and such other factors as the Administrator deems appropriate. If, however, existing performance is uniformly inadequate within an industrial category, EPA may establish limitations based on higher levels of control if the Agency determines that the technology is available in another category or subcategory and can be practically applied to this industrial category.

The 1977 amendments to the CWA required EPA to identify effluent reduction levels for conventional pollutants associated with BCT for discharges from existing industrial point sources. 33 U.S.C. 1311(b)(2)(E); 1314(b)(4)(B); 40 CFR 125.3(d)(2). In addition to considering the other factors specified in CWA section 304(b)(4)(B) to establish BCT requirements, EPA also considers a two-part “cost-reasonableness” test. EPA explained its methodology for the development of BCT requirements in 1986.

See

51 FR 24974, July 9, 1986.

For toxic pollutants and nonconventional pollutants, EPA promulgates discharge standards based on BAT. 33 U.S.C. 1311(b)(2)(A) and 1314(b)(2)(B); 40 CFR 125.3(d)(3). In establishing BAT, the technology must be technologically “available” and “economically achievable.” The factors considered in assessing BAT include the cost of achieving BAT effluent reductions, the age of equipment and facilities involved, the process employed, potential process changes, non-water quality environmental impacts, including energy requirements, and other such factors as the Administrator deems appropriate. EPA retains considerable discretion in assigning the weight accorded to these factors.

See Weyerhaeuser Co

v.

Costle,

590 F.2d 1011, 1045 (D.C. Cir. 1978). EPA usually determines economic achievability on the basis of costs of compliance with BAT limitations on overall industry and subcategory financial conditions. BAT discharge standards may be based on effluent reductions attainable through changes in a facility's processes and operations. BAT reflects the highest performance in the industry and may reflect a higher level of performance than is currently being achieved based on technology transferred from a different subcategory or category.

Southwestern Elec. Power Co.

v.

EPA,

920 F.3d at 1006;

Am. Paper Inst.

v.

Train,

543 F.2d 328, 353 (D.C. Cir. 1976);

Am. Frozen Food Inst.

v.

Train,

539 F.2d 107, 132 (D.C. Cir. 1976). BAT may be based upon process changes or internal controls, even when these technologies are not common industry practice.

See American Frozen Foods,

539 F.2d 107, 132, 140 (D.C. Cir. 1976).

CWA section 312(p)(4)(B)(ii) is also modelled off of established CWA concepts and directs EPA to use BMPs in certain circumstances.

See, e.g.,

VIDA Senate Report at 11 (“As with the technology standards themselves, this best management practice language is modeled off a similar regulatory provision for NPDES permits to ensure that the Administrator applies the same relevant considerations under section 312(p).”). Specifically, CWA section 312(p)(4)(B)(ii) requires employing BMPs to control or abate any discharge incidental to the normal operation of a vessel if: (1) numeric discharge standard standards are infeasible; or (2) or if the BMPs are reasonably necessary to achieve the standards or to carry out the purpose of reducing and eliminating the discharge of pollutants.

Where EPA did not impose a numeric standard,

5

EPA determined that they were infeasible. For these discharges, the particular challenges posed by setting standards for moving vessels at sea made numeric standards impracticable. For example, many of the specific discharge streams (

e.g.

chain lockers) would be impossible to monitor using available technology without putting the safety of crew members at risk. The physical nature of other discharge streams (

e.g.

deck runoff), which differs significantly from the normal contexts for which EPA normally imposes CWA numerical discharge standards, also makes setting a numeric standard impracticable. EPA also did not receive comments indicating that it was practicable to impose numeric standards for any specific discharges for which it required BMPs in the final rule. EPA received several comments supporting EPA's use of BMPs.

5

General operation and maintenance (section139.4), biofouling management (section 139.5), oil management (section 139.6), boilers (section 139.12), cathodic protection (section 139.13), chain lockers (section 139.14), decks (section 139.15), desalination and purification systems (section 139.16), elevator pits (section 139.17), fire protection equipment (section 139.19), gas turbines (section 139.20), hull and associated niche areas (section 139.22), inert gas systems (section 139.23), motor gasoline and compensating systems (section 139.24), non-oily machinery (section 139.25), refrigeration and air conditioning (section 139.27), seawater piping (section 139.28), sonar domes (section 139.29).

Additionally, EPA determined for certain discharges where it was practicable to impose numerical discharge standards that additional BMPs for these specific discharges are reasonably necessary to carry out the purpose and intent of CWA section 312(p).

6

For example, while EPA set numeric discharge standards for ballast tanks at 40 CFR 139.10(d), the Agency also required best management practices at 40 CFR 139.10(c) that are important for reducing discharges of ANS and thus are reasonably necessary to achieve the numeric discharge standards for ballast

tanks. BMPs consist of specific and implementable practices that will drive the reduction of pollutant discharges from vessels. BMPs rely on existing available technologies and will lead to reductions in pollutant discharges even given the highly variable nature of incidental discharges from vessels and practical difficulties in monitoring those discharges. Additionally, requiring the BMPs for those same specific discharges that were subject to BMPs under the VGP is consistent with the VIDA's requirement that existing VGP requirements serve as a regulatory baseline.

6

Ballast tanks (section 139.10), bilges (139.11), exhaust gas emission control systems (section 139.18), graywater systems (section 139.21), pools and spas (section 139.26).

CWA section 312(p)(4)(B) also establishes minimum requirements for the Federal standards of performance such that, “the combination of any equipment or best management practice . . . shall not be less stringent than” the effluent limits and related requirements established in Parts 2.1, 2.2, or 5 of the VGP. 33 U.S.C. 1322(p)(4)(B)(iii). Thus, while the CWA directs EPA to set the Federal standards of performance at the level of BPT/BCT/BAT, depending on the pollutant, it also creates a presumption that those standards would provide protection at least equivalent to the VGP requirements. There are exceptions at CWA section 312(p)(4)(D)(ii)(II) for situations where either new information becomes available that “would have justified the application of a less-stringent standard” or “if the Administrator determines that a material technical mistake or misinterpretation of law occurred when promulgating the existing standard.” Absent one of those exceptions, the statute directs that EPA “shall not revise a standard of performance . . . to be less stringent than an applicable existing requirement.” 33 U.S.C. 312(p)(4)(D)(ii)(I).

EPA endeavored to identify instances where the BPT/BCT/BAT level of control called for new, more stringent regulation than under the VGP for the VIDA Federal standards of performance. Where EPA research identified new alternatives or new options for marine pollution control devices, EPA evaluated those options as candidates for new BPT/BCT/BAT requirements. Where EPA identified no such new information or options, EPA continues to rely on the BPT/BCT/BAT analysis that led to the development of the VGP requirements. Additionally, EPA has considered in its BPT/BCT/BAT analysis that VGP requirements are currently in effect and are being achieved by regulated parties. This approach is consistent with EPA's obligations under CWA section 312(p)(4) because the effluent limits that EPA adopted in the VGP were already the product of a BPT/BCT/BAT analysis described in the permit fact sheets for both the 2008 and 2013 iterations of the VGP and corresponding supporting materials. CWA section 312(p)(4)(D)(ii) prohibits EPA from “revis[ing] a standard of performance . . . to be less stringent than an applicable existing requirement” except for the narrow exception identified in the previous paragraph. Absent such exception, the VIDA prohibits EPA from identifying a less stringent option as BPT/BCT/BAT. Indeed, by identifying the VGP as the minimum requirements for the Federal standards of performance and then expressly identifying the circumstances under which EPA could select a different, less stringent standard (

i.e.,

new information or error), the text and legislative history of the VIDA show that Congress intended to preserve, in most instances, the existing VGP requirements as a regulatory floor. VIDA Senate Report, at 12 (“The exceptions to this provision [for new information and technical or legal error] would provide the sole basis for the Administrator to weaken standards of performance compared to the legacy VGP requirements . . . .”). Moreover, Congress did not intend for EPA to depart from the considerations that informed the VGP's technology-based effluent limits. To the contrary, although the VIDA created a rule-based framework, rather than a permitting framework, Congress defined BPT, BCT, and BAT with “intentional[ ] cross-reference[s]” to terms used elsewhere in the CWA “to ensure that the Administrator makes identical considerations when setting the standards of performance under CWA section 312(p) as the Administrator was previously required to do when setting technology-based effluent limits for permits” as was done in the VGP. VIDA Senate Report, at 11.

While EPA is, for most of the discharges addressed in this rulemaking, relying on the BPT/BCT/BAT analysis that was performed to develop the VGP and the fact that certain discharge requirements are already currently in effect under the VGP, EPA did not incorporate the VGP requirements verbatim. In many cases, EPA translated the VGP discharge requirements into Federal standards of performance or otherwise improved the clarity to enhance implementation and enforceability. As such changes do not materially differ from the requirements established in the VGP, EPA reasonably relied on the BPT/BCT/BAT analysis that supported the VGP to develop the final Federal standards of performance.

In some instances, EPA updated language from the proposed rule to the final rule from “including” to “including but not limited to” to make absolutely clear that a list may be representative but not exhaustive and/or to ensure that language is not overly narrow or restrictive so as to preclude the use of new technologies or BMPs in the future that otherwise comply with the applicable requirements. As an example, 40 CFR 139.13(a) was updated to clarify that a vessel's cathodic corrosion protection device includes, but is not necessarily limited to, sacrificial anodes and impressed current cathodic protection systems.

See

40 CFR 139.13(a) (“The requirements in paragraph (b) of this section apply to discharges resulting from a vessel's cathodic corrosion control protection device, including

but not limited to

sacrificial anodes and impressed current cathodic protection systems.”) (emphasis added). The final rule also uses the more commonly recognized abbreviation “GT,” rather than “GT ITC” as used in the proposed rule, to mean the same thing. This modification is intended to align the language with existing regulations and the IMO.

Additionally, EPA determined that two of the VGP-named discharges do not require specific discharge requirements beyond the general discharge requirements detailed in subpart B and special area requirements in subpart D. Discharges from motor gasoline and compensating systems and inert gas systems are discharges incidental to the normal operation of a vessel. However, EPA determined that the requirements outlined in the general discharge standards in subpart B for both discharges, and the special area requirements in subpart D for motor gasoline and compensating systems, constitute BAT and are at least as stringent as the VGP.

Many of the comments EPA received asserted that the proposed rule would not adequately protect water quality in a particular region or jurisdiction. Notwithstanding that the VIDA requires EPA's Federal standards of performance to carry forward certain VGP requirements, the VGP requirements and the VIDA Federal standards of performance are subject to different legal frameworks for considering water quality impacts. The VGP was an NPDES permit under which discharges had to meet both technology-based levels of control (

See

CWA sections 301(b) and 304(b), 33 U.S.C. 1311(b) and 1314(b)) and any more stringent controls as necessary to protect water quality

(

See

CWA section 301(b)(1)(C); 33 U.S.C. 1311(b)(1)(C)), as well as any requirements of a State certification under CWA section 401 (33 U.S.C. 1341). The VIDA, by contrast, directs EPA to establish the Federal standards of performance solely on a technology basis. This is evident from the VIDA's text, which references the CWA provisions governing technology-based rules and does not reference the CWA provisions calling for more stringent limitations to protect water quality or State certifications under CWA section 401. Additionally, the VIDA's text makes clear that EPA and authorized states may not issue NPDES permits to VIDA-regulated discharges, further indicating that NPDES permitting elements such as water quality-based effluent limitations and certifications under section 401 do not apply.

See

33 U.S.C. 1322(p)(9)(C)(ii).

The VGP, like all CWA section 402 permits, needed to account for the potential impact of discharges on the quality of the receiving waters. The VGP did so in two ways, and neither are applicable to the VIDA Federal standards of performance. First, the CWA section 402 and NPDES regulations at 40 CFR 122.44(d) require permits to include more stringent water quality based effluent limits (WQBELs) when technology-based effluent limits (TBELs) are not sufficient to meet applicable water quality standards. The VGP included WQBELs at Part 2.3. Second, CWA section 401(d) allows States and Tribes to condition permits on “any effluent limitations and other limitations, and monitoring requirements” necessary to assure compliance with water quality requirements, including State water quality standards. Pursuant to this authority, the VGP included a number of specific requirements for individual states or Indian Country lands at Part 6. While the VIDA directed EPA to preserve certain VGP requirements (specifically, those at Parts 2.1, 2.2, and 5) in the Federal standards of performance, it did not preserve the WQBELs at Part 2.3 or the specific individual states' and Indian Country Lands' requirements at Part 6.

In contrast to permits issued under CWA section 402, technology-based effluent limitations developed under CWA sections 301(b) and 304(b) do not account for the quality of the receiving waters, including any water quality standards that may apply.

See Southwestern Elec. Power Co.

v.

EPA,

920 F.3d 999, 1005 (5th Cir. 2019) (“The Act requires ELGs [developed under CWA section 304(b)] to be based on technological feasibility rather than on water quality”) (citing

E.I. du Pont de Nemours & Co.

v.

Train,

430 U.S. 112, 130-31 (1977));

See also Weyerhaeuser Co.

v.

Costle,

590 F.2d 1011, 1042 (D.C. Cir. 1978) (discussing Congress's decision in adopting the CWA to base national standards on technology rather than receiving water quality). Therefore, Congress intended EPA to establish the requirements of this regulation based on the performance of technologies without regard to effects on receiving water quality, after a consideration of the factors specified in CWA section 304(b), 33 U.S.C. 1314(b).

Rather than incorporate water quality-based considerations into the Federal standards of performance, Congress instead chose to have EPA, the USCG, and states address location-specific water quality impacts through different approaches. For example, CWA section 312(p)(4)(E) authorizes EPA, in concurrence with the USCG and in consultation with states, to “require, by order, the use of an emergency best management practice for any region or category of vessels” where such an order “is necessary to reduce the reasonably foreseeable risk of introduction or establishment of an aquatic nuisance species” or “will mitigate the adverse effects of a discharge that contributes to a violation of a water quality [standard].” Elsewhere in the statute, CWA section 312(p)(10)(D) creates a process to create geographically bound no-discharge zones to “protect and enhance the quality of the specified waters.”

The final rule contains discharge standards that correspond to required levels of technology-based control (BPT, BCT, BAT) for discharges incidental to the normal operation of a vessel, as required by the CWA. In assessing the availability and achievability of the technologies discussed herein, in addition to the rationale for the VGP effluent limits, EPA considered studies and data from both domestic and international sources including studies and data from foreign-flagged vessels, as appropriate. As noted above, some discharge standards considered other existing laws and requirements (

e.g.,

Oil Pollution Act, APPS, and the Clean Hull Act). Where these laws already exist, EPA includes appropriate practices pursuant to these laws as part of the final standards to the extent these are demonstrated practices that EPA finds to be the best practicable control technology currently available (BPT) and best available technology economically achievable (BAT). For example, the final standards reaffirm requirements of the Clean Hull Act that coating on vessel hulls must not contain tributyltin or any other organotin compound used as a biocide.

A. Discharges Incidental to the Normal Operation of a Vessel—General Standards

This section describes the Federal standards of performance associated with the general discharge requirements in 40 CFR part 139, subpart B. These standards are designed to apply to all vessels and incidental discharges subject to the final rule to the extent the requirements are appropriate for each incidental discharge. These standards are proactive and preventative in nature and are designed to minimize the introduction of pollutants into the waters of the United States and the waters of the contiguous zone. The standards are based on EPA's analysis of available and relevant information, including available technical data, existing statutes and regulations, statistical industry information, and research studies included in the docket.

1. General Operation and Maintenance

The first category of Federal standards of performance are requirements associated with general operation and maintenance practices that are designed to eliminate or reduce the discharge of pollutants from vessels. 40 CFR 139.4. Unless otherwise noted, changes from the proposed rule are based on public comments EPA received on the proposed rule. The general operation and maintenance standards contain an overarching requirement that all discharges subject to this rule must be minimized. In a change from the proposed rule intended to provide greater clarity, the final rule specifies that a vessel operator must minimize discharges through management practices including, but not limited to, storage onboard the vessel, proper storage or transfer of materials, or reduced production of discharge. 40 CFR 139.4(b)(1). These requirements are “best management practices” (BMPs) under the CWA; which are defined under CWA section 312(p)(1)(H) as a schedule of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of the waters of the United States or the waters of the contiguous zone. Further, the term “best management practice” includes any treatment requirement, operating procedure, or practice to control vessel runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage. According to the VIDA, the Administrator shall require the use of best management practices to control or abate any discharge if numeric

standards of performance are infeasible; or the best management practices are reasonably necessary to achieve the standards of performance; or to carry out the purpose and intent of this subsection. EPA determined that these BMPs are necessary because it is infeasible to identify a single numeric standard where: (1) operation and maintenance requirements usually are not expressed numerically; and (2) even if they could be expressed numerically, there is not a numeric operation and maintenance standard that would be appropriate to apply to the multitude vessels, discharge streams, and pollutants subject to the VIDA.

Id.

(p)(4)(B)(ii). The final rule defines the term “minimize” to mean “to reduce or eliminate to the extent achievable using any control measure that is technologically available and economically practicable and achievable and supported by demonstrated BMPs such that compliance can be documented in shipboard logs and plans,” which will be determined by the Secretary. Minimizing discharges provides a reasonable approach for vessels to reduce all the incidental discharges subject to this rule, including for discharges not subject to specific discharge standards. Minimization of some discharges, such as graywater, may be achieved through simple practices like reduced production, while other discharges, such as ballast water, may require more complex practices, such as saltwater flush or ballast water exchange. To further carry out the purpose and intent of the VIDA, the final rule at 40 CFR 139.4(b)(2) requires vessels to discharge while underway and as far from shore, as practicable.

Id.

(p)(4)(B)(ii).

The final general operation and management standards also limit the types and quantities of materials that a regulated vessel may discharge. 40 CFR 139.4(b)(3) prohibits the addition of any materials to a discharge, other than for treatment of the discharge, that is not incidental to the normal operation of the vessel. 40 CFR 139.4(b)(4) prohibits using dilution to meet any effluent discharge standards. While EPA recognizes some vessel systems use water permissibly under the rule, for example to generate chlorine for disinfection, such a practice may not be used as a means of dilution for purposes of meeting the discharge standard. 40 CFR 139.4(b)(5) specifies requirements for any materials used onboard that may subsequently be discharged (

e.g.,

disinfectants, cleaners, biocides, coatings, sacrificial anodes). The final rule specifies that materials used onboard that may subsequently be discharged must be used only in the amount necessary to perform its intended function, and also, in response to public comment, that materials must be used according to manufacturer specifications. 40 CFR 139.4(b)(5)(i). The final rule also prohibits the discharge of any material used onboard that will be subsequently discharged that contains any materials banned for use in the United States. 40 CFR 139.4(b)(5)(ii). For any pesticide products (

e.g.,

biocides, anti-microbials) subject to FIFRA registration, vessel operators must follow the FIFRA label for all activities that result in a discharge into the waters of the United States or the waters of the contiguous zone. 40 CFR 139.4(b)(5)(iii).

To prevent materials and associated pollutants from being washed overboard, the rule requires that vessel operators minimize any exposure of cargo or other onboard materials that may be inadvertently discharged by containerizing or covering materials. 40 CFR 139.4(b)(6). Several commenters requested clarification about the effect of this regulation on hopper barge operations and expressed concern about potential safety impacts. In a change from the proposed rule, the final rule at 40 CFR 139.4(b)(6) exempts hopper barges without a fixed cover or in circumstances when a vessel operator reasonably determines compliance with this requirement would interfere with essential vessel operations, negatively impact safety of the vessel, risk loss of life at sea, or violate any applicable regulations that establish specifications for safe transportation, handling, carriage, and storage of toxic or hazardous materials.

The presence or use of toxic or hazardous materials may be necessary for the operation of vessels. For purposes of the final rule, the term “toxic or hazardous materials” is defined at 40 CFR 139.2 to mean any toxic pollutant identified in 40 CFR 401.15 or any hazardous material as defined in 49 CFR 171.8. To minimize and prevent discharges of toxic or hazardous materials, the final rule requires toxic or hazardous material containers to be appropriately sealed, labeled, and secured, and located in an area of the vessel that minimizes exposure to ocean spray and precipitation consistent with vessel design, unless the master determines this would interfere with essential vessel operations or safety of the vessel or crew, or would violate any applicable regulations that establish specifications for safe transportation, handling, carriage, and storage of toxic or hazardous materials. 40 CFR 139.4(b)(7)(i). Also, to avoid discharges and prevent emergency or other dangerous situations, the final rule requires that containers holding toxic or hazardous materials not be overfilled and incompatible materials not be mixed. 40 CFR 139.4(b)(7)(ii). In response to confusion from a commenter, the final rule includes additional language not included in the proposed rule to clarify that incompatible materials are substances which, if mixed, will create hazards greater than that posed by the individual substances (

See

the comment response section for 40 CFR 139.4,

General operation and maintenance

).

Id.

Wastes should be managed in accordance with any applicable local, State, and Federal regulations, which are outside of the scope of this final rule. For example, the Resource Conservation and Recovery Act (RCRA) governs the generation, transportation, storage, and disposal of solid and hazardous wastes.

Like the requirements related to toxic and hazardous materials, the final standard at 40 CFR 139.4(b)(8) prohibits the discharge or disposal of containers holding toxic or hazardous materials. 40 CFR 139.4(b)(9) requires that vessel operators clean out compartments, including tanks, cargo, or other spaces, to meet the definition of “broom clean” or equivalent prior to washing such areas. Further, the final rule at 40 CFR 139.4(b)(10) requires vessel operators to maintain their topside surface (

i.e.,

exposed decks, hulls above waterline, tank, cargo, and related appurtenances) to minimize the discharge of cleaning compounds, paint chips, non-skid material fragments, and other materials associated with exterior topside surface preservation. 40 CFR 139.4(b)(11) requires that painting and coating techniques on topside surfaces minimize the discharge of paints, coatings, surface preparation materials, and similar substances, and 40 CFR 139.4(b)(12) prohibits the discharge of any unused paints and coatings.

The final general operation and maintenance requirement consolidates requirements from multiple sections of the VGP and specifies that any equipment that may release, drip, leak, or spill oil or oily mixtures, fuel, or other toxic or hazardous materials, including to the bilge, must be maintained regularly to minimize or eliminate the discharges. 40 CFR 139.4(b)(13).

2. Biofouling Management

Vessel biofouling is the accumulation of aquatic organisms such as plants,

animals, and microorganisms on vessel equipment or systems immersed in or exposed to the aquatic environment. Biofouling discharges include but are not limited to those from maintenance and cleaning activities of hulls, niche areas, and associated coatings. Biofouling can include pathogens, as well as microscopic fouling (“microfouling”) and macroscopic fouling (“macrofouling”). Microfouling is biofouling caused by bacteria, fungi, microalgae, protozoans, and other microscopic organisms that creates a biofilm, also called a slime layer. Microfouling is a precursor to macrofouling. Macrofouling is biofouling caused by the attachment and subsequent growth of visible plants and animals. Macrofouling includes large, distinct, multicellular individual or colonial organisms visible to the human eye, such as barnacles, tubeworms, mussels, fronds/filaments of algae, bryozoans, sea squirts, and other large attached, encrusting, or mobile organisms.

Biofouling on vessel equipment and systems is one of the main vectors for the introduction and spread of aquatic nuisance species (ANS) (Gollasch, 2002; Drake and Lodge, 2007; Hewitt et al., 2009; Hewitt and Campbell, 2010). Biofouling organisms are discharged from vessel surfaces both passively through sloughing and actively through in-water cleaning activities (

See

40 CFR 139.2, definitions of “passive discharge of biofouling” and “active discharge of biofouling”). Biofouling produces drag on a vessel hull and protruding niche areas, leading to greater fuel consumption and increased greenhouse gas emissions. It can also result in hull corrosion and blockage of internal seawater piping, such as the engine cooling and firemain systems, thereby degrading the integrity of the vessel structure and impeding safe operation.

In the proposed rule, EPA included requirements to reduce the discharge of biofouling organisms from vessel equipment and systems, notably from hulls and associated niche areas, by requiring vessel operators to develop and follow a biofouling management plan and follow specific in-water equipment and system cleaning protocols. Additionally, EPA proposed to prohibit in-water cleaning of biofouling on hulls and associated niche areas that exceed a U.S. Navy fouling rating (FR) of FR-20, except when the fouling is local in origin and cleaning does not result in the substantial removal of a biocidal anti-fouling coating, as indicated by a plume or cloud of paint; or, when an in-water cleaning and capture (IWCC) system is used that is designed and operated to capture coatings and biofouling organisms, filter biofouling organisms from the effluent, and minimize the release of biocides. EPA recommended, but did not propose to require, the use of IWCC systems for removal of local macrofouling.

Based on comments received during the public comment period for the proposed rule and subsequent meetings with interested States, Tribes, and other stakeholders held between August and November 2021, EPA published a supplemental notice that discussed additional regulatory options for discharges from hulls and associated niche areas. The supplemental notice discussed five key issues raised during the public comment period for the proposed rule regarding the general applicability of the hull and associated niche area requirements and cleaning of this equipment as proposed in 40 CFR 139.22(a) and (d). All comments were considered in preparation of the final rule.

EPA in the VGP considered discharges of biofouling organisms to be incidental when such discharges originate from vessel equipment and systems while the vessel is immersed in or exposed to the aquatic environment. Both the VGP and the discharge regulations promulgated pursuant to CWA section 312(n) for incidental discharges from vessels of the Armed Forces included management requirements to minimize the discharge of biofouling organisms from vessel equipment and systems. The VGP in Parts 2.2.23 and 4.1.3 required that vessel operators (1) minimize the transport of attached living organisms; and (2) conduct annual inspections of the vessel hull (including niche areas) for fouling organisms, respectively. Part 4.1.4 of the VGP also required vessel operators to prepare drydock inspection reports to demonstrate that the vessel hull and other surface and niche areas had been inspected for attached living organisms and that those organisms had been removed or neutralized. These reports were to be made available to EPA or an authorized representative of EPA upon request. Except in those circumstances specified in CWA section 312(p)(4)(D)(ii)(II), EPA's discharge regulations must be as stringent as those in the VGP. The final rule includes these requirements for the discharge of biofouling organisms from vessel equipment and systems.

Among the comments EPA considered were ones suggesting that biofouling should not be regulated as a discharge incidental to the normal operation of a vessel under the VIDA. However, EPA continues to interpret the statutory definition of “discharge incidental to the normal operation of a vessel” (“incidental discharge”) at CWA section 312(a)(12) to include discharges of biofouling organisms from vessel equipment and systems. As described in the proposed rule and supplemental notice, biofouling discharges are an ordinary accompanying circumstance of vessel operation and transit and thus fit the plain meaning of “discharge incidental to the normal operation of a vessel.” (85 FR 67818, October 26, 2020, section VIII.A.2 and 88 FR 71788, October 18, 2023, section IV.C.1). Additionally, the definition of “discharge incidental to the normal operation of a vessel” explicitly uses the word “including,” indicating that although “biofouling” is not specifically mentioned in the definition, the definition's list of discharges is illustrative and not exhaustive. 33 U.S.C. 1322(a)(12). Other enumerated terms within the definition also reasonably encompass biofouling. For example, “any other pollutant discharge from the operation of a marine propulsion system, shipboard maneuvering system, crew habitability system, or installed major equipment. . .” encompasses biofouling discharge from a vessel hull because the shipboard maneuvering systems cannot “operate” without the hull.

Id.

Additionally, “a discharge in connection with the . . . maintenance[ ] and repair” of any “protective, preservative, or absorptive application to the hull” could include biofouling discharge.

Id.

Finally, the statutory history and regulatory history support EPA's interpretation, particularly because the VGP regulated the same types of biofouling discharges as the final rule.

The final rule requires each vessel to develop a biofouling management plan to minimize the discharge of biofouling organisms, thereby minimizing the potential for the introduction and spread of ANS. 40 CFR 139.5(b). The requirement to develop a biofouling management plan is intended to provide a holistic strategy that considers the operational profile of the vessel, identifies the appropriate anti-fouling systems, and details the biofouling management practices for specific areas of the vessel. The details of the plan would fall under the USCG's implementing regulations established under CWA section 312(p)(5), although the plan elements must prioritize procedures and strategies to prevent macrofouling.

While the VGP did not explicitly require a biofouling management plan,

it required the majority of the components that EPA expects will comprise a biofouling management plan individually, such as: (1) the consideration of vessel class, operations, and biocide release rates and components in the selection of anti-fouling systems; (2) an annual inspection of the vessel hull and niche areas for assessment of biofouling organisms and condition of anti-fouling paint; (3) a drydock inspection report noting that the vessel hull and niche areas have been inspected for biofouling organisms and those organisms have been removed or neutralized; (4) reporting of cleaning schedules and methods; and (5) appropriate disposal of wastes generated during cleaning operations. Additionally, per the Clean Hull Act of 2009, every vessel engaging in one or more international voyages is required to carry an anti-fouling system certificate that contains the details of the anti-fouling system (

See

33 U.S.C. 3821). Moreover, under regulations promulgated under the authority of the National Invasive Species Act, the USCG has required the individual in charge of any vessel equipped with ballast water tanks that operates in the waters of the United States to maintain a ballast water management plan that has been developed specifically for the vessel and that will allow those responsible for the plan's implementation to understand the vessel's ballast water management strategy and comply with the requirements. 33 CFR 151.2050. That ballast water management plan is to include detailed biofouling maintenance and sediment removal procedures (33 CFR 151.2050(g)(3)). Consistent with guidance issued by the USCG on those regulations, these procedures were to be incorporated into the ballast water management plan or included as separate Biofouling Management and Sediment Management Plans and referenced in the ballast water management plan (USCG, 2014). Under this guidance, the USCG advised that IMO Resolution Marine Environment Protection Committee (MEPC) 207(62) provides effective guidance for developing and implementing a vessel-specific biofouling management plan.

Developing vessel-specific biofouling management plans is important because vessels can vary widely in operational profile and, therefore, in the extent and type of biofouling. However, the final rule recognizes that vessels with similar operational profiles, such as vessels that cross the same waterbodies, travel at similar speeds, and share the same design, may also employ the same management measures, such as selecting the same types of anti-fouling systems and applying the same inspection and cleaning schedules. It is anticipated that fleet owners may develop a biofouling management plan template that can be readily adapted into a vessel-specific biofouling management plan. To address comments received on the proposed rule, the final rule clarifies that a biofouling management plan must be developed to minimize the discharge of biofouling organisms, prioritize procedures and strategies to prevent macrofouling (thereby minimizing the potential for the introduction and spread of ANS), and describe the vessel-specific anti-fouling systems and biofouling management practices necessary to comply with requirements in 40 CFR 139.5. The USCG, through its regulations developed under CWA section 312(p)(5), has the authority to specify the details of the plan, including how vessel operators are to implement and follow that plan. The final rule also references 40 CFR 139.13 (cathodic protection), 139.14 (chain lockers), 139.22 (hulls and associated niche areas), 139.28 (seawater piping), and 139.29 (sonar domes) for additional biofouling management requirements.

3. Oil Management

The final rule aims to minimize discharges of oil, including oily mixtures, and requires vessel operators to use control and response measures to prevent, minimize, and contain spills and overflows during fueling, maintenance, and other vessel operations. 40 CFR 139.6(d). This reinforces existing requirements found at 33 CFR part 155 that require taking immediate and appropriate corrective actions if an oil spill is observed because of vessel operations, including maintaining appropriate spill containment and cleanup materials onboard and immediately using such materials in the event of any spill.

Also, the final rule specifies that the discharge of used or spent oil no longer being used for its intended purpose is prohibited. 40 CFR 139.6(b). This includes any used or spent oil that may be added to an incidental discharge that is otherwise authorized to be discharged. Overall, this section authorizes discharges of small amounts of oil, including oily mixtures, incidental to the normal operation of a vessel provided such discharges comply with the otherwise applicable existing legal requirements. For example, consistent with the CWA, this standard prohibits the discharge of oil in such quantities as may be harmful, as defined in 40 CFR 110.3.

See

40 CFR 139.6(c) (prohibiting discharges in quantities that may be harmful) and 139.2 (defining “Discharge of oil in such quantities as may be harmful” by reference to 40 CFR 110.3 and 110.5).

The final rule at 40 CFR 139.3 specifies that, except as expressly provided, nothing in this part affects the applicability of any other provision of Federal law as specified in several statutory and regulatory citations. 40 CFR 139.3 includes citations for CWA section 311 and the Act to Prevent Pollution from Ships (APPS) (33 U.S.C. 1901

et seq.

), both of which address discharges of oil. Under CWA section 311, any oil, including oily mixtures, other than those exempted in 40 CFR 110.5, may not be discharged in such quantities as “may be harmful,” which is defined to include those discharges that violate applicable water quality standards or “cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines or cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines.” Discharges that are not included in the description of “may be harmful” include discharges of oil from a properly functioning vessel engine (including an engine on a public vessel) and any discharges of such oil accumulated in the bilges of a vessel discharged in compliance with 33 CFR part 151 subpart A; other discharges of oil permitted under MARPOL 73/78, Annex I, as provided in 33 CFR part 151 subpart A; and any discharge of oil explicitly permitted by the Administrator in connection with research, demonstration projects, or studies relating to the prevention, control, or abatement of oil pollution. The United States enacted the APPS to implement the nation's obligations under MARPOL 73/78. As the lead agency for APPS implementation, the USCG issued implementing regulations primarily found at 33 CFR part 151. Those APPS requirements already apply to many of the vessels that are covered by this rule. Among other things, the APPS regulates the discharge of oil and oily mixtures. Generally, these requirements prohibit “any discharge of oil or oily mixtures into the sea from a ship” except when certain conditions are met, including a discharge with an oil content of less than 15 ppm and that the ship operates oily-water separating equipment, an oil content monitor, a bilge alarm, or a combination thereof.

The final rule also includes requirements for oil-to-sea interfaces. Specifically, the final rule requires the use of environmentally acceptable lubricants (EALs) for oil-to-sea

interfaces unless technically infeasible. 40 CFR 139.6(e). The final standard for general operation and maintenance at 40 CFR 139.4 also identifies a series of mandatory BMPs for minimizing lubricant discharges during maintenance.

Oil-to-sea interfaces are defined as seals or surfaces on shipboard equipment where the design is such that small quantities of oil can escape into the surrounding waters during normal vessel operations.

See

40 CFR 139.2. For example, below-water seals frequently use lubricating oil mechanisms that maintain higher pressure than the surrounding sea to ensure that no seawater enters the system and compromises the unit's performance. Above-deck equipment with portions of the machinery extended overboard, or equipment mounted to the exterior hull of the vessel, may also have oil-to-sea interfaces. During normal operation, small quantities of lubricant oil in these interfaces are discharged directly into surrounding waters. Constituents of conventional hydraulic and lubricating oils vary by manufacturer, but may include copper, tin, aluminum, nickel, and lead. In addition, traditional mineral oils have a low biodegradation rate, a high potential for bioaccumulation, and a measurable toxicity towards marine organisms.

Vessels use lubricants in a wide variety of shipboard applications. Examples of lubricated equipment with oil-to-sea interfaces include:

•

Stern tube:

A stern tube is the casing or hole through the hull of the vessel that enables the propeller shaft to connect the vessel's engine to the propeller on the exterior of the vessel. Stern tubes contain seals designed to keep the stern tube lubricant from exiting the equipment array and being discharged to waters at the exterior of the vessel's hull.

•

Controllable pitch propeller:

Variably pitched propeller blades are for changing the speed or direction of a vessel and supplementing the main propulsion system. Controllable pitch propellers also contain seals that prevent the lubricant from exiting the equipment array.

•

Rudder bearings:

These bearings allow a vessel's rudder to turn freely; they also use seals with an oil-to-sea interface.

•

Lubricated deck equipment above the water surface line that extends overboard:

Hose handling cranes, hydraulic system provision handling cranes, hydraulic cranes, and hydraulic stern ramps are examples of machinery with the potential for above-water discharges of lubricants. When vessels are underway, this equipment is often not operational, and any lubricant losses are typically captured during deck washdown and treated as part of deck washdown wastewater. However, discharges can occur when portions of the machinery such as booms or jibs, trolleys, cables, hoist gear, or derrick arms are in use and extend over the side of vessel.

• Lubricated equipment, such as accommodation ladders, mounted to the exterior of the vessel hull.

In the case of controllable pitch propellers (CPP), up to 20 ounces of hydraulic and lubricating oils could be released for every CPP blade that is replaced, with blade replacement occurring at drydock intervals or when the blade is damaged. When the blade replacement includes removal of the blade port cover (generally occurring infrequently, less than once per month), up to five gallons of oil could be discharged into surrounding waters unless the service is performed in drydock. Additionally, many oceangoing vessels operate with oil-lubricated stern tubes. Oil leakage from stern tubes, once considered a part of normal “operational consumption” of oil, has become an issue of global concern and is now treated as oil pollution. A 2001 study commissioned by the European Commission DG Joint Research Centre concluded that routine unauthorized operational discharges of oil from ships into the Mediterranean Sea created more pollution than accidental spills (Pavlakis et al., 2001). Similarly, an analysis of data on oil consumption sourced from a lubricant supplier indicated that daily stern tube lubricant consumption rates for different vessels could range up to 20 liters per day (Etkin, 2010). This analysis estimated that operational discharges (including stern tube leakage) from vessels add between 36.9 million liters and 61 million liters of lubricating oil into marine port waters annually.

One commenter requested that EPA restore language from the VGP recommending use of seawater-based systems for stern tube lubrication to eliminate the discharge of oil from these interfaces to the aquatic environment. EPA agrees, and the Agency has added this VGP language back into the text of the final standard.

See

40 CFR 139.6(e) (“Operators of new build vessels should endeavor to use seawater-based systems for stern tube lubrication to eliminate the discharge of oil from these interfaces to the aquatic environment.”)

The final rule at 40 CFR 139.2 defines an EAL as a lubricant or hydraulic fluid, including any oil or grease, that is “biodegradable,” “minimally-toxic,” and “not bioaccumulative.” The addition of “or hydraulic fluid” to the definition clarifies, consistent with VGP implementation, that any hydraulic fluid containing oils or greases and used in equipment with an oil-to-sea interface requires use of an EAL, unless technically infeasible. Based on several comments received regarding oil-to-sea interfaces on deck equipment, EPA reexamined the definition for “oil-to-sea interface” at 40 CFR 139.2 and updated it to clarify that oil-to-sea interfaces are found on equipment subject to immersion as well as equipment above the surface line that extends overboard or is mounted to the exterior of the hull. This modification is in line with EPA's regulation of those portions of vessel deck equipment from which lubricant or hydraulic fluid losses cannot otherwise be managed onboard the vessel.

More than 16 manufacturers have produced EALs for the global shipping community, providing vessel operators with a wide array of choices for optimizing lubricant technical performance. Most major marine equipment manufacturers have approved EALs for use in their machinery, and new equipment, such as air seals, is being introduced and refined commercially to minimize or eliminate the need for EALs. The market for EALs continues to expand around the world, particularly in Europe where the use of such lubricants is promoted through a combination of tax breaks, purchasing subsidies, and national and international labeling programs. Thus, EAL's are widely available to vessels in the marketplace and their use. And while vessels must incur additional costs to purchase EALs, EPA has analyzed those costs in its Economic Analysis and finds them to be economically achievable. The Agency has thus determined that product substitution of EALs for other lubricants in oil-to-sea applications (unless technically infeasible), together with the required BMPs for maintenance, represents BAT for discharges from oil-to-sea interfaces. Use of EALs in lieu of conventional formulations for oil-to-sea interfaces can offer significantly reduced discharges of pollutants of concern (U.S. EPA, 2011).

As part of the BAT analysis for the VGP, EPA considered the processes employed and potential process changes that might be necessary for vessels to use EALs. As EPA explained at the time, EALs are readily available, and their use is economically achievable for applications where it is technologically available (U.S. EPA, 2011). The 40 CFR 139.6(e) requirement carries forward

EPA's VGP approach based on BAT that numeric standards of performance for discharges from oil-to-sea interfaces are infeasible but that EALs are technologically available, economically achievable, and reasonably necessary to carry out the purpose and intent of this subsection. New vessels can select equipment during design and construction that is compatible with EALs. Furthermore, vessel operators can design additional onboard storage capacity for EALs if they choose to use traditional mineral-based oil for engine lubrication (thereby needing two types of oils on-hand). The extra storage capacity needed would be minor. However, EPA considers the use of EALs in some applications to not be technologically practicable or achievable, such as for when there is existing equipment for which no compatible products are currently available. Therefore, the final rule at 40 CFR 139.6(e) retains the caveat from the VGP that EALs must be used in oil-to-sea interfaces except when “technically infeasible.”

The Agency considered several other approaches for regulating oil-to-sea interfaces. For one, the most recent version of the European Ecolabel program has a modified definition of what constitutes an EAL in that it now allows for “small quantities” (

i.e.,

<0.1 percent) of bioaccumulative substances in lubricant formulations. EPA considered revising the definition of “biodegradable” at 40 CFR 139.2 to more closely align the terminology with current European Ecolabel requirements for achieving specific levels of degradation within 10, rather than 28, days. EPA notes that stakeholders involved in the European Ecolabel program felt strongly that this change in the test pass window would significantly reduce the number of lubricant formulations available on the market. To ensure widespread installation and use of EALs by vessels that operate in the waters of the United States or the waters of the contiguous zone, EPA in 40 CFR 139.2 retained the definition of “biodegradable” as used in the VGP.

The final standard for oil-to-sea interfaces includes EAL requirements as part of a general standard for oil management applicable to any specific discharge that may have an oil-to-sea interface rather than a specific discharge standard.

See

40 CFR 139.6(e). Further, the standard covers all oil-to-sea interfaces on vessels rather than specifically identified interfaces.

Id.

EPA notes that certain types of seals used on below-deck equipment, such as air seals, are based on designs that use an air gap or other mechanical features to prevent oils from reaching waters at the exterior of the vessel's hull. If these seals do not allow the lubricant to be released under normal circumstances, they are not considered to be oil-to-sea interfaces.

See

40 CFR 139.2 (an “oil-to-sea interface” has a “

design

[ ] such that oil or oily mixtures can escape directly into surrounding waters”) (emphasis added). Determinations of technical infeasibility regarding the use of an EAL pertain to implementation and therefore would fall under the USCG's implementing regulations established under CWA section 312(p)(5). The scope of this discharge category extends to all types of equipment with direct oil-to-sea interfaces, including any equipment on-deck or mounted to the exterior of the vessel hull.

See

40 CFR 139.2 (definition of “oil-to-sea interface”). While the VGP provided that a lubricant could be classified as an EAL if it was either “biodegradable,” “minimally-toxic,” and “not bioaccumulative” or labeled under a defined list of labeling programs (

e.g.,

the European Union's European Ecolabel and Germany's Blue Angel), the final rule does not include a list of acceptable labeling programs. This is because neither EPA nor the USCG can control future modifications to the criteria by these organizations. EPA expects that all or most of the labeling programs identified in the VGP will meet the EAL criteria in this final rule and subsequent USCG implementing regulations, such that a comparable selection of appropriate lubricants will be available to vessel operators.

B. Discharges Incidental to the Normal Operation of a Vessel—Specific Standards

This section describes the final specific Federal standards of performance for discharges incidental to the normal operation of a regulated vessel. The final Federal standards of performance apply to regulated vessels operating within the waters of the United States or the waters of the contiguous zone. The final rule requires that a discharge comprised of two or more regulated incidental discharges must meet the Federal standards of performance established for each of those commingled discharges.

1. Ballast Tanks

a. Background and Applicability

The final rule incorporates the CWA section 312(p)(1) definition of “ballast water” to mean any water, suspended matter, and other materials taken onboard a vessel to control or maintain trim, draft, stability, or stresses of the vessel, regardless of how any such water or suspended matter is carried; or taken onboard a vessel during the cleaning, maintenance, or other operation of a ballast tank or ballast management system of the vessel. 40 CFR 139.2. This statutory definition is slightly expanded and clarified from the VGP, which included the USCG definition of the term, meaning any water and suspended matter taken on board a vessel to control or maintain, trim, draught, stability, or stresses of the vessel, regardless of how it is carried. VGP appendix A; 33 CFR 151.1504. The term “ballast water” does not include any substance that is added to the water that is directly related to the operation of a properly functioning ballast water management system (BWMS). In response to several commenters, EPA is clarifying here that the definition of “ballast water” does not include discharges of fresh water, sea water, or ice carried onboard a vessel for food safety and product quality purposes and as such are not subject to the ballast water requirements in the final rule. The final rule carries forward the definition of “ballast tank” from the appendix A of the VGP to mean any tank or hold on a vessel used for carrying ballast water, regardless of whether the tank or hold was designed for that purpose. 40 CFR 139.2.

Ballast water discharge volumes and rates vary significantly by vessel type, ballast tank capacity, and type of deballasting equipment for the universe of vessels covered under the rule. Most passenger vessels have ballast capacities of less than 5,000 cubic meters (approximately 1.3 million gallons) of water. Cargo/container ships generally have ballast capacities of five to 20 thousand cubic meters (more than 1.3 to 5.3 million gallons) of water while some bulk carriers and tankers have ballast capacities greater than 40 thousand cubic meters (over 10 million gallons) of water.

Ballast water may contain toxic and nonconventional pollutants such as rust inhibitors, epoxy coating materials, zinc or aluminum (from anodes), iron, nickel, copper, bronze, silver, and other material or sediment from inside the tanks, pipes, or other machinery. Ballast water may also contain organisms that originate from where the water is collected. When ballast water is discharged, these organisms may establish new populations of ANS in the receiving waterbodies. Ballast water discharged from vessels has been, and continues to be, a significant environmental concern because it can introduce and spread ANS that threaten the diversity and abundance of native species; the ecological stability of U.S.

waters; and the commercial, agricultural, aquacultural, and recreational use of those waters.

Prior to passage of the VIDA, ballast water discharges were regulated by multiple Federal and State laws and regulations. The USCG regulated ballast water discharges under the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA), and amendments thereto by the National Invasive Species Act (NISA) of 1996 (33 CFR part 151 subparts C and D). EPA regulated ballast water discharges under the VGP through the NPDES program authorized under CWA section 402. However, the VIDA established that ballast water will now be regulated as an incidental discharge under a new CWA section 312(p). The VIDA set as a presumptive minimum baseline the existing VGP requirements.

Additionally, several states (California, Michigan, Minnesota, Ohio, Oregon, Washington, and Wisconsin) previously used their certification authorities under CWA section 401 or under standalone State authorities to impose additional, State-specific requirements on commercial vessels operating within their State waters. The existing USCG and EPA requirements for ballast water, as well as such additional standalone State standards, will no longer apply once EPA has established national standards and the USCG has promulgated implementing regulations that are final, effective, and enforceable under the VIDA. 33 U.S.C. 1322(p)(9)(A)(i).

The final standards for ballast water reflect BAT considering the specified statutory factors for BAT under CWA section 304(b), as well as the previous requirements established in the VGP and 33 CFR part 151 subparts C and D, and the new requirements established in the VIDA.

b. Exclusions

The final standards for ballast water apply to any vessel equipped with one or more ballast tanks that operates in the waters of the United States or waters of the contiguous zone, except as excluded by statute or regulation. Pursuant to CWA section 312(p)(2)(B)(ii), the final rule excludes ballast water discharges from the following five vessel categories from the CWA section 312(p) ballast water standards: (1) vessels that continuously take on and discharge ballast water in a flow-through system; (2) vessels in the National Defense Reserve Fleet scheduled for disposal; (3) vessels discharging ballast water consisting solely of water taken onboard from a public or commercial source that, at the time the water is taken onboard, meets the Safe Drinking Water Act requirements; (4) vessels carrying all permanent ballast water in sealed tanks; and (5) vessels discharging ballast water into a reception facility. 40 CFR 139.10(b).

i. Vessels That Continuously Take on and Discharge Ballast Water in a Flow-Through System

The final rule excludes discharges of ballast water from a vessel that continuously takes on and discharges ballast water in a flow-through system, if the Administrator determines that the system cannot materially contribute to the spread or introduction of an ANS from ballast water into waters of the United States or the contiguous zone (40 CFR 139.10(b)(1)), acknowledging that such a flow-through system may have additional areas on the hull (

e.g.,

niches) requiring more rigorous biofouling management. EPA is unaware of any such vessels currently in commercial operation, but theoretically a vessel could be designed to have ambient water flow through the hull for vessel stability without retaining any of that water in such a way that it would be transported. Should any such vessel begin commercial operation, EPA expects that it would evaluate the ballasting configuration to determine if the vessel meets the statutory description, in which case it would be excluded from the ballast water discharge standards. In that instance, the Administrator would notify the vessel owner/operator of such a determination. 40 CFR 139.10(b)(1); 33 U.S.C. 1322(p)(2)(B)(ii)(I).

ii. Vessels in the National Defense Reserve Fleet Scheduled for Disposal

The final rule excludes discharges of ballast water from a vessel in the National Defense Reserve Fleet

7

that is scheduled for disposal if the vessel does not have an operable BWMS. 40 CFR 139.10(b)(2); 33 U.S.C. 1322(p)(2)(B)(ii)(II).

7

This includes a fleet of vessels, established by section 11 of the Merchant Ship Sales Act of 1946, reserved for national defense and national emergencies.

iii. Vessels Discharging Ballast Water Consisting Solely of Water Meeting the Safe Drinking Water Act Requirements

The final rule excludes discharges of ballast water from a vessel that consist solely of water taken onboard from a public or commercial source that, at the time the water is taken onboard, meets the applicable requirements of the Safe Drinking Water Act (SDWA) (42 U.S.C. 300f

et seq.

) at 40 CFR parts 141 and 143. 40 CFR 139.10(b)(3); 33 U.S.C. 1322(p)(2)(B)(ii)(III). In plain terms, this means that vessels may use and discharge finished, potable water as ballast, but may not use or discharge untreated water from a public water system that is not necessarily potable.

The exclusion in final rule, unlike the proposed exclusion, does not categorically apply to water taken onboard that meets Health Canada's Guidelines for Canadian Drinking Water Quality because EPA determined that the implementation details of this Congressionally-mandated exclusion, such as identification of potable water sources consistent with SDWA regulations, may be more appropriately left to the USCG as part of its implementation, compliance, and enforcement requirements under CWA section 312(p)(5). EPA does not have information suggesting vessels made use of a comparable allowance present in the VGP for water meeting Health Canada's Guidelines, and the USCG ballast water regulations in 33 CFR part 151 did not provide for a comparable allowance. Thus, prior to the VIDA, this allowance for water meeting Health Canada's Guidelines applied solely to the universe of vessels regulated under the VGP but not USCG regulations (namely, vessels operating on the Great Lakes). However, an industry representative for U.S.-flagged vessels operating on the Great Lakes commented on the proposed rule that it is not operationally or economically feasible for a U.S.-flagged vessel to receive water meeting potable water requirements. Thus, while the intent of EPA's proposed rule was to retain the expanded exclusion from the VGP to include potable water used as ballast that meets Health Canada's Guidelines, the final rule does not include such expansion to more closely align with the statutory language and consistent with information in a comment EPA received demonstrating that the requirement would not be technologically available and economically achievable. EPA acknowledges that vessels discharging ballast water consisting solely of water taken onboard from public or commercial water sources may be deemed to be consistent with applicable requirements of the SDWA and that the USCG may establish procedures for use of such water as a means to comply with the ballast water discharge standard. EPA anticipates that USCG may address this issue as a matter of implementation, compliance, and enforcement in its corresponding rulemaking under the VIDA.

iv. Vessels Carrying All Permanent Ballast Water in Sealed Tanks

The final rule excludes discharges of ballast water from a vessel that carries all permanent ballast water in sealed tanks that are not subject to discharge. 40 CFR 139.10(b)(4). The final rule did not carry through the phrase “except under emergency circumstances” from the proposed rule in recognition that 40 CFR 139.1(b)(3) excludes discharges from VIDA regulation if compliance with this part would compromise the safety of life at sea. This 40 CFR 139.1(b)(3) exclusion would cover discharges of ballast water from a sealed tank in emergency circumstances. As such, clarification about emergency circumstances specific to discharges from sealed tanks is duplicative and unnecessary. This 40 CFR 139.10(b)(4) exclusion is different from the ballast water exchange and saltwater flush exemptions described in section VIII.B.1.h. of this preamble,

Ballast Water Exchange and Saltwater Flush.

33 U.S.C. 1322(p)(2)(B)(ii)(IV).

v. Vessels Discharging Ballast Water Into a Reception Facility

The final rule excludes discharges of ballast water from a vessel that only discharges ballast water into a reception facility (which could include another vessel for the purpose of storing or treating that ballast water). In such instances, once the ballast water is offloaded to a reception facility, that ballast water would be subject to any applicable regulation for discharges from that reception facility. Consistent with the rationale provided in the 2013 VGP Fact Sheet, EPA would continue to expect that all vessel piping and supporting infrastructure up to the last manifold or valve immediately before the reception facility manifold connection, or similar appurtenance, prevents untreated ballast water from being discharged. Any such discharge not meeting this requirement would be expected to meet the ballast water discharge standards in the final rule. 40 CFR 139.10(b)(5); 33 U.S.C. 1322(p)(2)(B)(ii)(V).

c. Exemption From Existing USCG Regulations for Crude Oil Tankers Not Adopted

Crude oil tankers engaged in coastwise trade are exempted from the existing USCG regulation (33 CFR 151.2015(b)), consistent with section 1101(c)(2)(L) of the NISA (16 U.S.C. 4711). However, these same vessels are not exempted from meeting the ballast water requirements in the VGP and are not exempted under the VIDA. Therefore, pursuant to CWA section 312(p)(4)(B)(iii), which requires this rule to be at least as stringent as specified parts of the VGP, the final rule does not exempt crude oil tankers engaged in coastwise trade from meeting the ballast water requirements set forth in the rule. Such vessels are not inherently unable to perform ballast water exchanges and other ANS management practices that their non-exempt counterparts routinely carry out. EPA expects this final rule to impose no additional costs given that the requirements are presently in effect under the VGP.

d. Ballast Water Best Management Practices

Pursuant to CWA section 312(p)(4)(B)(ii), the final rule includes six ballast water BMPs for all vessels with ballast tanks and one additional ballast water BMP specific to Lakers to control or abate the number of organisms taken up and discharged in ballast water. 40 CFR 139.10(c). The final rule retains many of the ballast water BMPs included in the VGP (and present in USCG regulations at 33 CFR part 151 subpart D), in line with the VIDA's requirement that EPA's standards be at least as stringent as the VGP with limited exceptions. At present, the ballast water BMPs in this section are widely implemented and EPA has not identified any unacceptable non-water quality environmental impacts (

e.g.,

energy requirements, air impacts, solid waste impacts, and changes in waters use) related to these practices. These are demonstrated practices that EPA finds to be technologically available and economically achievable.

The final rule does not include one ballast water BMP that was included in both the VGP and USCG regulations at 33 CFR part 151 subparts C and D. The final rule does not require that vessel operators minimize or avoid uptake of ballast water in the following areas and situations: areas known to have infestations or populations of harmful organisms and pathogens (

e.g.,

toxic algal blooms); areas near sewage outfalls; areas near dredging operations; areas where tidal flushing is known to be poor or times when a tidal stream is known to be turbid; in darkness, when bottom-dwelling organisms may rise in the water column; where propellers may stir up the sediment; and areas with pods of whales, convergence zones, and boundaries of major currents.

This change is based on extensive conversations with the USCG and comments received indicating that such requirements are not practical to implement or enforce. During these conversations, new information from implementation of the VGP became available indicating that these conditions are not well-defined and are typically beyond the control of the vessel operator during the uptake and discharge of ballast water. Additionally, it is difficult for enforcement agencies to assess whether a vessel operator took appropriate actions as necessary to comply with these requirements. Therefore, it is not practical to continue to require that vessels minimize or avoid uptake of ballast water in those areas and situations. 33 U.S.C. 1314(b)(2)(B) and 33 U.S.C. 1322(p)(4)(D)(ii)(II)(aa). In lieu of including the uptake measures as individual requirements, EPA expects that appropriate vessel-specific ballast water BMPs will be incorporated into the ballast water management plans (BWMPs) discussed later in this section, as vessels must minimize the introduction and spread of ANS. For example, BWMPs could describe coordinating with local authorities to identify areas and situations of concern and any opportunities to mitigate potential issues. Demonstrating that these important considerations were made by vessel operators would provide for environmental protection but allow vessel operators to tailor measures specific to their vessel operations and routes.

Additionally, the VIDA authorizes a State to petition EPA to issue an emergency order as provided for in CWA section 312(p)(7)(A)(i) and in accordance with the procedures outlined in 40 CFR 139.50 in the event of a known outbreak of harmful algal blooms or other emergency situations. Similarly, the VIDA authorizes EPA to require, by order, the use of an emergency BMP for any region or category of vessels if it is necessary to reduce risk of introduction or establishment of ANS, or if EPA determines that the order will mitigate the adverse effects of a discharge that contributes to a violation of a water quality requirement under CWA section 303. 33 U.S.C. 1322(p)(4)(E)(i). Thus, similar BMPs may be established albeit through an order where EPA and/or the USCG identify specific instances when and where such practices must be implemented.

i. Develop a Ballast Water Management Plan

The final rule requires vessels equipped with ballast tanks to maintain a BWMP that addresses both the uptake and discharge of ballast water. 40 CFR 139.10(c)(1)(i). A vessel's BWMP must

describe the vessel-specific (

i.e.,

considering the unique operational profile of the vessel) ballast water management practices and systems that, ensure compliance with the requirements in this section. Specific details of the BWMP, including how vessel operators are to implement and follow the plan, would fall under the USCG's implementing regulations established under CWA section 312(p)(5).

In general, this carries forward the requirement in part 2.2.3.2 of the VGP requiring a vessel-specific BWMP be developed and maintained. The VGP specifies, that at a minimum, the plan is to outline how the vessel will comply with all the VGP ballast water requirements. Additionally, the requirement to maintain a BWMP is consistent with existing USCG regulations at 33 CFR 151.2050. Through these regulations, promulgated pursuant to the NISA, the USCG has required the individual in charge of any vessel equipped with ballast water tanks that operates in the waters of the United States to maintain a BWMP that has been developed specifically for the vessel and that will allow those responsible for the plan's implementation to understand the vessel's ballast water management strategy and comply with the requirements. The USCG also required BWMPs to include detailed biofouling maintenance and sediment removal procedures (33 CFR 151.2050(g)(3)).

ii. Minimize Use of Gravity To Drain Ballast Tanks in Port

The final rule requires that vessels minimize the use of gravity to drain ballast tanks while in port. 40 CFR 139.10(c)(1)(ii). Instead, ballast tanks should be discharged in port using pumps. This BMP has been shown to increase the mortality rate of living organisms in ballast water during discharge, particularly zooplankton and other larger organisms, as a result of the physical action of the pumps (

e.g.,

cavitation, entrainment, and/or impingement), and thereby reduce the propagule pressure.

iii. Use High Sea Suction

The final rule requires that, when practicable, high sea suction sea chests must be used in port or where clearance to the bottom of the waterbody is less than five meters to the lower edge of the sea chest. 40 CFR 139.10(c)(1)(iii). An example of when the use of high sea suction may not be practicable is when it is necessary to avoid ice, algae, or other biofilm on the water surface. This BMP minimizes the potential for uptake of bottom-dwelling organisms, suspended solids, particulate organic carbon, and turbidity into the ballast tanks.

iv. Avoid Ballast Water Discharge or Uptake in Areas With Coral Reefs

The final rule requires vessel owners/operators to avoid the discharge or uptake of ballast water in areas with coral reefs. 40 CFR 139.10(c)(1)(iv). This BMP is consistent with the VGP requirements; however, the VGP also included similar prohibitions for “marine sanctuaries, marine preserves, marine parks, . . . or other waters” listed in appendix A. The final rule carries forward these prohibitions in a section specific to activities in federally-protected waters, as described in section VIII.C. of this preamble,

Discharges Incidental to the Normal Operation of a Vessel-Federally-Protected Waters Requirements

and in the regulations at 40 CFR 139.40.

Further, consistent with a USCG Marine Safety Information Bulletin (

Ballast Water Best Management Practices to Reduce the Likelihood of Transporting Pathogens That May Spread Stony Coral Tissue Loss Disease

), ballast water discharges should be conducted as far from coral reefs as possible, regardless of whether the reef is inside or outside of 12 NM from shore (USCG, 2019a).

v. Clean Ballast Tanks Periodically and Prohibit Ballast Tank Cleaning Discharges

The final rule requires ballast tanks to be cleaned periodically to remove sediment and biofouling organisms. 40 CFR 139.10(c)(1)(v). Residual sediment left in ballast tanks can negatively affect the ability of a vessel to meet discharge standards, even when a BWMS is properly operated and maintained. Sediments may also allow organisms to survive in ballast tanks for prolonged periods of time in resting stages. Additionally, the final rule prohibits the discharge of sediment from ballast tank cleanings in waters subject to this rule.

vi. Maintain Sea Chest Screens

The final rule requires that sea chest screen(s) be maintained and kept fully intact. 40 CFR 139.10(c)(1)(vi). This BMP is consistent with a VGP requirement for existing bulk carriers operating exclusively in the Laurentian Great Lakes (Lakers), but the final rule expands it to all vessels with ballast tanks. These screens are designed to prevent the largest living organisms, such as fish, as well as bacteria and viruses associated with these organisms, from entering ballast tanks. Adequately maintaining sea chest screens is a simple technology-based practice that is available, economically achievable, and beneficial to all vessels to reduce the transport of organisms.

vii. New Laker Equipment Standard

The final rule establishes, as a BMP, a ballast water “equipment standard” that requires any new Laker to install, operate, and maintain a USCG type-approved BWMS. 40 CFR 139.10(c)(2). EPA's standard for new Lakers aligns with the “technology-forcing” nature of the BAT statutory standard.

See NRDC

v.

EPA,

822 F.2d 104, 123 (D.C. Cir. 1987);

See also Southwestern Elec. Power Co.

v.

EPA,

920 F.3d at 1003 (“By requiring BAT, the Act forces implementation of increasingly stringent pollution control methods.”). This approach is consistent with the option discussed in the supplemental notice. Discussion of EPA's rationale for exempting both new and existing Lakers from the numeric ballast water discharge standard is provided in section VIII.B.1.f.v. of this preamble,

Vessels that Operate Exclusively in the Laurentian Great Lakes.

The final rule defines a “new Laker” as any vessel 3,000 GT and above, and that operates exclusively in the Great Lakes and the St. Lawrence River west of a rhumb line drawn from Cap des Rosiers to Pointe-de-l'Ouest (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, and constructed after the effective date of USCG regulations promulgated pursuant to CWA section 312(p)(5)(A)(i). 40 CFR 139.2. The final definition for, and use of the term, “new Laker” corrects an improper citation in the supplemental notice to the French spelling of “West Point” to correctly read “Pointe-de-l'Ouest” not “Pointe-Sude-Oueste.” The final definition for “seagoing vessel” was also corrected to reference “Pointe-de-l'Ouest.”

As described in section VIII.B.1.e.i.1 of this preamble,

BAT for Control of Ballast Water Discharges is the Use of a USCG Type-Approved BWMS,

the requirement to use a type-approved BWMS is a well-established and demonstrated process for selection of technologies. The final rule requires the use of a USCG type-approved BWMS because this process comprehensively addresses BWMS design, installation, operation, safety, and performance.

Land-based and shipboard testing of ultraviolet (UV) and chemical addition BWMSs in the Great Lakes have demonstrated a substantial reduction in organisms even when the numeric

discharge standard cannot be achieved (GSI, 2011; GSI 2015; Bailey et al., 2023). An equipment standard allows vessels flexibility to operate BWMSs in challenging water conditions through use of operational contingency measures. Additionally, these implementation details can be determined in the USCG regulations. Although contingencies may be necessary in certain locations or at certain times of the year in the Great Lakes, EPA expects that continued operation of a BWMS consistent with an equipment standard over the lifetime of a vessel will still provide reductions in the discharge of organisms. Additionally, new Lakers can be designed and constructed to accommodate a USCG type-approved BWMS and overcome certain operational and technical challenges such as corrosion, flow rate capacity, lack of space and lost cargo capacity, and adequate power.

As described in the supplemental notice in section IV.B.,

Ballast Tanks—Equipment Standard for New Lakers

(88 FR 71788, October 18, 2023), the final rule does not establish an equipment standard for existing Lakers as BAT because technical and operational challenges would create disproportionately high costs to retrofit BWMSs onto existing Lakers.

See

88 FR 71800, October 18, 2023, section IV.B.3.I. Existing Lakers also do not have the engineering flexibility available during the initial design and construction process to incorporate ballast water treatment capabilities.

Also, two provisions in the VIDA, when read together, demonstrate Congress' intent for EPA to undertake additional research to develop effective ballast water management solutions for existing Lakers. First, section 903(g) of the VIDA authorized the EPA Administrator to establish the Great Lakes and Lake Champlain Invasive Species Program within the Great Lakes National Program Office that has as one of its purposes “to develop, achieve type-approval for, and pilot shipboard or land-based ballast water management systems installed on, or available for use by, commercial vessels operating solely within the Great Lakes and Lake Champlain Systems to prevent the spread of aquatic nuisance species populations within the Great Lakes and Lake Champlain Systems.” This program is to be developed in collaboration and consultation with several other Federal agencies. As described therein, “commercial vessels operating solely within the Great Lakes and Lake Champlain Systems” are, as defined by EPA, “Lakers.” Thus, Congress clearly intended for EPA to work towards finding ballast water management solutions for existing Lakers and acknowledged that there were special technological challenges presented by Lakers. Second, section 903(a)(1) of the VIDA, specifically as codified in CWA section 312(p)(6)(C), established a “period of use of installed BWMSs” clause that specifies that a vessel is deemed to be in compliance if the vessel is meeting the ballast water discharge standard that was applicable to the vessel at the time of installation of the existing BWMS, even if EPA subsequently establishes a more stringent discharge standard. Thus, an existing Laker required to install a BWMS to meet the discharge standard would be unlikely to benefit from any improved ballast water management practices developed as part of the ballast water research. EPA's seven-year Great Lakes Ballast Water Research and Development Plan is targeted to address the complexities and improve the operation of BWMSs on existing Lakers. EPA is also required to review and revise as appropriate its VIDA standards of performance every five years. 33 U.S.C. 1322(p)(4)(D)(i). As such, EPA expects the outcome of that research will support future discharge requirements for these vessels with a focus on finding effective technologies for the management of ballast water.

e. Numeric Ballast Water Discharge Standard

EPA is establishing BAT effluent limitations for ballast water based on the technologies required by the VGP and USCG ballast water regulations. The final rule at 40 CFR 139.10(d) continues, as a numeric discharge standard, the numeric limitations for biological parameters from the VGP and USCG ballast water regulations at 33 CFR part 151 subpart D, as follows:

• Organisms greater than or equal to 50 micrometers in minimum dimension: discharge must include less than 10 living organisms

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