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Rule2024-22013

Vessel Incidental Discharge National Standards of Performance

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Published

October 9, 2024

Effective

November 8, 2024

Issuing agencies

Environmental Protection Agency

Abstract

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.

Full Text

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<title>Federal Register, Volume 89 Issue 196 (Wednesday, October 9, 2024)</title>
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[Federal Register Volume 89, Number 196 (Wednesday, October 9, 2024)]
[Rules and Regulations]
[Pages 82074-82158]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-22013]

[[Page 82073]]

Vol. 89

Wednesday,

No. 196

October 9, 2024

Part III

Environmental Protection Agency

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40 CFR Part 139

Vessel Incidental Discharge National Standards of Performance; Final
Rule

Federal Register / Vol. 89 , No. 196 / Wednesday, October 9, 2024 /
Rules and Regulations

[[Page 82074]]

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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.

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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
<a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>.

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: <a href="/cdn-cgi/l/email-protection#d4b2b5a1b8bffabeb5b7bf94b1a4b5fab3bba2"><span class="__cf_email__" data-cfemail="aacccbdfc6c184c0cbc9c1eacfdacb84cdc5dc">[email&#160;protected]</span></a>.

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

[[Page 82075]]

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.
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\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.
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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.

[[Page 82076]]

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

[[Page 82077]]

``[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 <a href="https://www.congress.gov/115/crpt/srpt89/CRPT-115srpt89-ERRATA.pdf">https://www.congress.gov/115/crpt/srpt89/CRPT-115srpt89-ERRATA.pdf</a>. 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.''
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\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).
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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

[[Page 82078]]

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.

[[Page 82079]]

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

[[Page 82080]]

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 ([micro]g)/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.

[[Page 82081]]

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 <a href="https://www.epa.gov/vessels-marinas-and-ports/vessel-incidental-discharge-act-vida-engagement-opportunities">https://www.epa.gov/vessels-marinas-and-ports/vessel-incidental-discharge-act-vida-engagement-opportunities</a>.
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 <a href="https://www.epa.gov/vessels-marinas-and-ports/vessel-incidental-discharge-act-vida-stakeholder-engagement-opportunities">https://www.epa.gov/vessels-marinas-and-ports/vessel-incidental-discharge-act-vida-stakeholder-engagement-opportunities</a>.

B. Consultation and Coordination With States

1. Federalism Consultation and Governors Consultation
As noted in the proposed rule, EPA concluded that this action has

[[Page 82082]]

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

[[Page 82083]]

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

[[Page 82084]]

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

[[Page 82085]]

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

[[Page 82086]]

(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

[[Page 82087]]

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,

[[Page 82088]]

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,

[[Page 82089]]

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

[[Page 82090]]

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

[[Page 82091]]

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.

[[Page 82092]]

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.

[[Page 82093]]

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

[[Page 82094]]

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[deg] 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

[[Page 82095]]

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:
<bullet> Organisms greater than or equal to 50 micrometers in
minimum dimension: discharge must include less than 10 living organisms
per cubic meter of ballast water.
<bullet> Organisms less than 50 micrometers and greater than or
equal to 10 micrometers: discharge must include less than 10 living
organisms per milliliter (mL) of ballast water.
<bullet> Indicator microorganisms must not exceed:
[cir] Toxicogenic Vibrio cholerae (serotypes O1 and O139): a
concentration of less than 1 colony-forming unit (cfu) per 100 mL.
[cir] Escherichia coli: a concentration of less than 250 cfu, or
Most Probable Number (MPN), per 100 mL.
[cir] Intestinal enterococci: a concentration of less than 100 cfu,
or MPN, per 100 mL.
The final rule defines ``living'' using the CWA section
312(p)(6)(D) clarification that the terms ``live'' and ``living'' shall
not include an organism that has been rendered nonviable or preclude
the consideration of any method of measuring the concentration of
organisms in ballast water that are capable of reproduction. 40 CFR
139.2. However, it is important to recognize that, to date, the USCG
has not identified any testing protocols, based on best available
science, that are available for use to quantify organisms in ballast
water that are capable of reproduction. As such, demonstrating
compliance with the discharge standard would require the use of test
methods, as detailed in the 2010 EPA Generic Protocol for the
Verification of Ballast Water Treatment Technology, that do not
consider non-viable organisms as part of the test protocol (U.S. EPA,
2010). In the future, should the USCG identify one or more testing
protocols that enumerate organisms in ballast water capable of
reproduction, such methods would be acceptable for demonstrating
compliance with the numeric ballast water discharge standard.
The final rule reflects units of both MPN/mL and cfu/mL for
Escherichia coli and intestinal enterococci in 40 CFR 139.10(d), and
(g)(2) for the Pacific Region, based on input from commenters who
pointed out that newer microbiological test methods have MPN outputs
and that, while the test methods differ, the number of bacteria in the
tested sample are comparable to the numeric discharge standard.
In addition, the final rule at 40 CFR 139.10(d)(2) continues the
discharge limitations as a numeric standard for four biocide parameters
contained in the VGP, namely:
<bullet> For any BWMS using chlorine dioxide, the chlorine dioxide
must not exceed 200 [mu]g/L;
<bullet> For any BWMS using chlorine or ozone, the total residual
oxidizers must not exceed 100 [mu]g/L; and
<bullet> For any BWMS using peracetic acid, the peracetic acid must
not exceed 500 [mu]g/L and the hydrogen peroxide must not exceed 1,000
[mu]g/L.
The standard for both the organisms and biocide parameters
represents instantaneous maximum values not to be exceeded.
The final rule continues the requirement contained in the VGP and
USCG regulations (33 CFR part 151) that, prior to the compliance date
for the vessel to meet the discharge standard,

[[Page 82096]]

ballast water exchange must be conducted as required in 40 CFR
139.10(e), or the applicable regional requirements in 40 CFR 139.10(f)
and (g), for any vessel subject to the ballast water discharge
standard. The USCG is required to include compliance dates in its
implementing regulations established under CWA section
312(p)(5)(A)(iv).
For the reasons described in the following section, BAT for ballast
water management remains the use of a USCG type-approved BWMS as
required long-term under the USCG ballast water regulations and VGP.
Accordingly, that is the technology on which EPA has based the numeric
ballast water discharge standard.
i. BAT Rationale for Standard Pursuant to the VIDA
(1) BAT for Control of Ballast Water Discharges Is the Use of a USCG
Type-Approved BWMS
(a) EPA Conducted a Comprehensive Survey of Technologies for Purposes
of Identifying BAT
EPA based its analysis of prospective BAT model technologies
largely on data generated through the USCG BWMS type-approval process.
In response to concerns expressed by commenters that EPA failed to
review sufficient data for the proposed rule, EPA requested and
obtained directly from the USCG a large set of land-based and shipboard
USCG BWMS type-approval data for the 37 BWMSs that had been type-
approved as of the date of the proposed rule (October 2020) and similar
data for 16 amendments to those systems. In total, EPA analyzed 1,820
treatment discharge results from 49 BWMS type-approval data sets. The
complete set of USCG BWMS type-approval data provided to EPA by the
USCG and the Agency's comprehensive Ballast Water BAT Data Analysis of
these data, including a sensitivity analysis, are included in the
docket (U.S. EPA, 2023), and are updated for the final rule (U.S. EPA,
2024). As of April 30, 2024, the USCG has type-approved 54 BWMSs. Some
commenters suggested that EPA should analyze more recent data. However,
EPA is unaware of any significant improvements in ballast water
technology, monitoring, or testing. As such, allowing more time for the
USCG to compile and share additional data with EPA on additional
systems that have been type-approved since the proposed rule would not
have meaningfully altered the results of the analysis. Additionally, it
takes significant time for USCG to compile and share data with EPA. For
example, EPA received USCG data 16 months after the initial formal
request to USCG for the compiled type-approval data. Thus, given the
time it takes USCG to compile and share data with EPA, EPA selected an
appropriate cutoff point for the collection of data to enable timely
analysis to proceed.
EPA did not analyze IMO type-approval data for its BAT analysis
here, and EPA's rationale for excluding IMO type-approval data from its
analysis is described in both the proposed rule and supplemental notice
(85 FR 67818, October 26, 2020, section VIII.B.1.v.A.3.i. and 88 FR
71788, October 18, 2023, section III.A.1).
(b) USCG Type-Approved BWMSs Are Technologically Available and
Economically Achievable
Based on its review of available information, for this final rule,
EPA selected all currently available USCG type-approved BWMSs as BAT
for control of ballast water discharges. EPA's final rule includes a
numeric ballast water discharge standard based on that technology. This
outcome is consistent with the requirements in the VGP, which also
identifies USCG type-approved BWMS as BAT and has the same numeric
standards as the final rule.
EPA has determined that the standard for ballast water discharges
in the final rule is technologically available and economically
achievable. This determination is based in part on the fact that EPA
assessed the same type-approval process and similar technologies under
the VGP and determined that USCG type-approved BWMS were
technologically available and economically achievable for that permit.
As discussed in more depth below, EPA assessed additional data
regarding USCG type-approved systems and, based both on its prior
analysis and new data and analysis, continues to find the suite of USCG
type-approved BWMSs to be BAT. Additionally, vessels in the United
States have been required to meet the same numeric standard reflecting
USCG type-approved BWMSs as BAT under the 2013 VGP, which further
supports EPA's determination that such systems are technologically
available and economically achievable.
The fact that these systems are approved through the USCG's type-
approval process also supports their availability for use on the full
universe of vessels regulated by the VIDA. USCG regulations include
BWMS type-approval requirements that consider design, installation,
operation, and testing to ensure any type-approved system meets both
performance and safety standards. 46 CFR 162.060. The type-approval
process also supports the availability of these systems despite the
challenges vessels present that are not present for stationary
facilities for which EPA routinely establishes national discharge
effluent limitations guidelines and standards based on BAT. For
example, the USCG type-approval process separately requires that the
BWMS be practicable onboard a vessel (e.g., able to operate despite
roll, pitch, and vibration considerations), compatible with other
onboard systems, durable, and be supported by credible and sustainable
system manufacturers, suppliers, and servicers. Additionally, to be
installed on any U.S.-flagged vessel, the USCG must verify the system
meets certain installation and engineering requirements specified in 46
CFR subchapters F and J.
(c) USCG Type-Approved BWMSs Have Acceptable Non-Water Quality
Environmental Impacts
EPA also considered non-water quality environmental impacts of its
ballast water standards as part of its BAT analysis. EPA previously
determined for the VGP that its numeric ballast water standards had
acceptable non-water quality environmental impacts, and the Agency is
not aware of any new information since the VGP that would cause EPA to
reach a different determination for this final rule. In particular,
based on its experience implementing this requirement for vessels since
the 2008 VGP, EPA has not found this requirement to have unacceptable
non-water quality environmental impacts. Specifically, EPA has
considered the impacts of its standards related to increased energy
usage for operating treatment equipment and associated greenhouse gases
from an incremental increase in fuel consumption. Any such impacts are
far exceeded by the effluent reduction benefits of treatment.
Additionally, EPA's standard allows vessel operators to select from a
broad range of type-approved systems to best meet their vessel's needs,
including where appropriate to reduce energy requirements. For these
reasons, EPA's ballast water numeric standard will not have
unacceptable non-water quality environmental impacts.
(d) Harmonization With an International Standard Further Supports EPA's
Selection of USCG Type-Approved BWMSs as BAT
In identifying a model BAT technology for this rule, EPA determined
it was appropriate to consider whether its numeric standard

[[Page 82097]]

was harmonious with international standards and promoted international
comity. In particular, for ballast water discharges, the current world
economic and trade system is predicated on timely and efficient
maritime transportation, a significant proportion of which operates
globally where trade takes it. The final numeric ballast water
discharge standard acknowledges, as described in the preamble to the
proposed rule, that a majority of the vessels discharging ballast water
in waters of the United States spend the majority of their time
operating outside of waters of the United States (U.S. EPA, 2020) and
that these vessels for the most part are obligated to comply with the
IMO International Convention for the Control and Management of Ships'
Ballast Water and Sediments (the BWM Convention)--an international
treaty developed with a goal of establishing an international standard
for the management of ballast water (IMO, 2004)--anywhere they operate
in the world, including while operating in the United States. This is
not to say that U.S. requirements must or should always be identical
with the international standard; however, it is appropriate, in EPA's
view, to consider whether U.S. requirements are harmonious with
international obligations for the vessels of flag states that have
signed onto that BWM Convention.
Indeed, the BWMS type-approval process was first developed as part
of the IMO BWM Convention. The BWM Convention was adopted in 2004 after
more than 14 years of complex negotiations between IMO member states
and entered into force in 2017. The United States is not a party to the
BWM Convention; however, both the USCG (serving as the lead for the
U.S. delegation) and EPA were actively involved in the standard setting
discussions that led to the BWM Convention numeric discharge standard
that entered into force in September 2017. The USCG developed domestic
type-approval regulations with the intent to harmonize as closely as
possible with the adopted BWM Convention.
While EPA received comments arguing that it should identify BAT
based on the performance of a subset of the perceived most stringent of
type-approved systems, pollutant discharge reductions are not the sole
factor relevant to BAT under CWA section 304(b). As discussed in more
detail in the proposed rule (85 FR 67818, October 26, 2020, section
VIII.B.1.v.A.2.ii.), the BAT consideration factors in CWA section
304(b), particularly with respect to the ``process employed'' and
``engineering aspects of the application of various types of control
techniques,'' weigh in favor of establishing the ballast water standard
at a level of consistency with the IMO standard. Furthermore, section
304(b)(2)(B) authorizes EPA to consider ``such other factors as the
Administrator deems appropriate'' and EPA has broad discretion in
considering those factors and the weight attributed to such factors.
See Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1028, 1045 (D.C. Cir.
1978); Texas Oil & Gas Ass'n v. EPA, 161 F.3d 923, 928 (5th Cir. 1998).
Here, EPA considers consistency with the international standard to be
an appropriate factor that weighs in favor of the BAT selected in this
final rule because it promotes international trade and comity.
(e) USCG Type-Approved BWMSs Make Reasonable Further Progress Toward
the National Goal of Eliminating the Discharge of All Pollutants
EPA's ballast water standard based on USCG type-approved systems as
BAT also makes reasonable further progress toward the national goal of
eliminating the discharge of all pollutants. See CWA section
304(b)(2)(B). As detailed in the preamble for the proposed rule, these
systems have been shown to substantially reduce the concentration of
living organisms in ballast water discharges and beyond the reduction
achieved through midocean exchange or unexchanged ballast water.
Specifically, as illustrated in table 1 of the proposed rule, pollutant
discharge reduction attributable to type-approved BWMS performance is
extremely high, with properly operated and maintained systems achieving
treatment efficiencies of more than 99 percent. Furthermore, EPA notes
that vessel ballasting practices to minimize volumes of ballast water
requiring management will likely continue to evolve into the future,
further driving reductions of pollutant discharges.
Opportunities for advancement in ballast water treatment and
technology may involve EPA and/or the USCG assisting the vessel
community in addressing installation and operational challenges with
the existing BWMSs and future type-approved systems and BMPs. The VIDA
provides EPA and the USCG with this opportunity to enhance the ballast
water regulations, which should aid with the operation of demonstrated,
but not yet fully optimized, systems and with future systems as they
continue to be developed and deployed.
(2) EPA Rejects Other Technologies as BAT for Controlling Discharges of
Ballast Water
Some commenters suggested that EPA should identify a single-best
performing BWMS or a subset of better-performing BWMSs and impose that
perceived level of performance on the entirety of the universe of
potentially affected entities. EPA disagrees that the available
information indicates that a higher-performing system or subset of
systems can be identified as BAT from the data in the record.
Additionally, even if higher performing systems could be identified,
the record does not demonstrate that a small subset of systems capable
of meeting a more stringent standard would be available to all vessels
that would be required to meet a standard based on those systems, given
the tremendous variability among vessels.
Based on its analysis of USCG type-approval data described in the
supplemental notice, EPA disagrees with commenters that the record
allows for identification of a subset of so-called best-performing
BWMSs. EPA's analysis specifically addressed commenters' suggestion and
evaluated whether statistical differences in the treatment
effectiveness of BWMSs could help identify systems that perform
significantly better in terms of pollutant discharge reductions, such
that they could reflect BAT. To do so, EPA compared treatment discharge
concentrations of the BWMSs within six groups defined by the two common
organism size class and three salinity categories. Statistical tests
conducted and summarized in the Agency's comprehensive Ballast Water
BAT Data Analysis (U.S. EPA, 2024) showed significant differences among
systems within each group but did not point to any clear stratification
of ``best'' or ``worst'' system groupings. Further complicating this
analysis, the effectiveness of systems varied by organism size and/or
salinity, such that systems had different relative comparisons
depending on the group within which they were evaluated. For example,
one system may have produced lower concentrations in one organism size
class but not in the other size class, making an overall determination
of that system's treatment effectiveness compared to other systems
uncertain.
The results of this statistical analysis did not point to any clear
identification of a subset of BWMSs that stood out as representing BAT.
Test results for both the baseline and sensitivity analyses were within
the same order of

[[Page 82098]]

magnitude as the standard in the proposed rule and fall within the
margin of error expected due to the variability associated with the
characteristics of ballast water and challenges associated with
monitoring, analyzing, and enumerating organisms in the different size
classes. Based on the data analysis of the USCG type-approval data, EPA
did not identify any single system or subset of systems that might be
identified as BAT based on their superior performance in terms of
pollutant discharge reductions.
EPA also disagrees with the suggestion to base BAT on a small
subset of systems because that suggestion does not account for the
substantial variability among vessels. This variability dictates the
need for a range of different BWMS options to adequately address
organism reduction in ballast water discharges. That is, a BWMS that is
technically and operationally appropriate for one vessel or set of
conditions may not be available for a different vessel, or even a
similar vessel with a different operating profile. EPA's BAT
determination carries forward the existing regulatory approach,
promoting the type-approval process using a range of types of BWMS
disinfection technologies that operate under a wide range of
conditions, thereby allowing vessel operators to select a system that
is most appropriate for their vessel. The final rule provides the
necessary flexibility for the vessel owner/operator to select a system
that has been demonstrated through the existing USCG type-approval
process as both capable of achieving the final numeric discharge
standard and as suitable for their particular vessel.
(3) EPA's Numeric Ballast Water Discharge Standard Is Supported by the
Data in the Record
EPA's numeric ballast water discharge standard is supported by the
data in the record for several reasons. First, EPA's experience with
the VGP has demonstrated that the numeric standard is achievable for
vessels subject to regulation under this rule. Based on its BAT
analysis for the VGP and its subsequent administration of the VGP, EPA
has direct knowledge that the numeric standard can be attained.
Second, EPA's standard is based on USCG type-approved systems,
which are designed and demonstrated to allow vessels to consistently
achieve the numeric discharge standard. The goal of the USCG type-
approval process is to demonstrate that a BWMS can treat ballast water
such that organism concentrations in discharged water are sufficiently
low to meet the discharge standard (e.g., less than 10 organisms per
cubic meter of ballast water as an instantaneous maximum) for a given
number of consecutive valid tests. Type-approval is a critical step in
verifying that a BWMS, when tested under standardized and relatively
challenging conditions, is capable of consistently meeting a discharge
standard. In the USCG type-approval testing process to determine
biological efficacy, careful analyses are employed to: (1) assure the
source water for testing meets a threshold concentration of organisms
to meaningfully challenge the BWMS; and (2) to quantify (ideally,
sparse) concentrations of living organisms in treated discharge water.
As part of its type-approval procedure, the USCG regulations require
BWMS land-based testing to be conducted pursuant to the ETV Protocol
(i.e., the 2010 Generic Protocol for the Verification of Ballast Water
Treatment Technology, developed under the now defunct EPA Environmental
Technology Verification Program) that outlines the experimental design,
sampling and analysis protocols, test, and reporting requirements (U.S.
EPA, 2010). This rigorous process ensures that systems are consistently
able to meet EPA's standard.
Third, EPA's numeric standard appropriately accounts for various
sources of variability inherent in addressing organisms (including ANS)
in ballast water, including:
<bullet> Vessel size and architectural characteristics, including
but not limited to design of ballast tank(s), pump(s), and piping
configuration;
<bullet> Vessel operational profile (e.g., voyage lengths, volumes
of ballast water, ballast water flow rates, etc.);
<bullet> Vessel class and flag State;
<bullet> Temperature, salinity, and turbidity range of uptake water
in areas where the vessel voyages;
<bullet> Duration of voyages and segments of each voyage that can
affect the necessary holding time for certain systems;
<bullet> Ballast water capacity and required uptake and discharge
pumping rates;
<bullet> Treatment system weight and space considerations,
including but not limited to accessibility and acceptability for use in
hazardous spaces;
<bullet> Availability of service, support, replacement parts,
supplies, etc. in areas where the vessel voyages;
<bullet> Compatibility of treatment with vessel construction (e.g.,
corrosivity concerns);
<bullet> Power demand and energy consumption to pump ballast and
operate treatment system; and
<bullet> Safety concerns (e.g., explosivity risks, particularly on
oil and chemical carriers).
As EPA has historically done with respect to developing effluent
limitations guidelines, EPA is not specifying a single technology that
must be used, but rather it is identifying one or more technologies
that have been demonstrated as being capable of meeting the discharge
standard. The discharger is free to select a technology most suitable
for its operations and compliance (to be determined by USCG) is able to
be demonstrated through routine self-monitoring. The USCG type-approved
its first BWMS in 2016 and, to date, more than fifty systems have been
approved through that process (USCG, 2024). The wide range of systems
demonstrated to meet EPA's numeric standard thus accounts for the
variability in vessel characteristics, operations, and conditions.
(4) EPA Rejects an Alternative Numeric Standard Based on Several
Factors
Commenters suggested that EPA adopt different or lower numeric
standards for ballast water, arguing that EPA's data indicates that a
limit of less than 10 organisms per volume of ballast water as an
instantaneous maximum is not supported by available data as the most
stringent limit that could be set based on USCG type-approved BWMSs.
Specifically, commenters urged that EPA's results indicated that a
numeric standard could be set at 6.01 or 6.66 organisms/volume for
large and medium organisms size classes, respectively, or even at lower
levels based on the results of single systems or subsets of systems.
EPA has carefully considered this issue but disagrees with commenters
for several reasons.
(a) Observed Numeric Differences in Test Results Are Not Scientifically
Significant in Light of Existing Variability
EPA disagrees that the USCG test results that EPA reviewed as part
of this rulemaking indicate that additional pollutant control may be
achieved through the application of a more stringent discharge standard
such as one around 6 organisms. Whether the standard is set at
approximately 6 or 10 organisms, both results are within the margin of
error expected given variability in type-approval sampling and
analysis. For example, stratification in ballast tanks, variability
between tanks, flow rates, and contamination in uptake and discharge
pipes are just a few of the considerations that may impact type-
approval testing. It is also a challenge to capture and count

[[Page 82099]]

appropriately sized organisms and to collect samples such that the
sample collection process does not physically damage or kill these
organisms (which should be counted as dead or nonviable only if such
happens as a result of the BWMS, not because of poor sample collection
and handling practices). Any perceived difference in system performance
could easily be due to the variability in ballast water uptake and
testing, and not necessarily indicative of improvement in treatment
effectiveness that would warrant a revised standard. Indeed, the Second
Circuit has recognized and upheld in the context of measuring aquatic
organisms that discharge standards that are not identical may
nonetheless represent the same level of control. Riverkeeper, Inc. v.
EPA, 358 F.3d 174, 188-89 (2d Cir. 2004) (upholding EPA's Track II
requirements allowing for ``substantially similar'' reductions in
impingement and entrainment at new facility cooling water intake
structures as not a less stringent standard but the same standard
accounting for the measurement margin of error when measuring in the
natural environment).
Even a standard 10 to 100 times more stringent than EPA's would be
insignificant and within the margin of error in terms of the expected
level of pollution control. For example, as EPA explained in its
proposed rule, achieving a standard 10 times more stringent than the
standard in the final rule would result in a difference of between
99.92 and 99.99 percent treatment efficiency for large organisms and
97.82 and 99.78 percent treatment efficiency for medium organisms. From
the perspective of the effectiveness of the technology (and given the
limitations in sampling and monitoring), the differences between 99.92
and 99.99 percent effective are scientifically insignificant.
(b) Alternative Numeric Standards Would Not Account for Variability
A more stringent numeric standard would also fail to account for
the variability inherent in ballast water management. Variability is
inherent to all treatment systems, including well-operated treatment
systems. When EPA establishes BAT, it must consider the variability of
a well-operated treatment system to ensure that technology is available
to achieve the discharge standard. EPA's approach to providing for some
variability for well-operated systems in establishing BAT limits in
effluent limitations guidelines rulemakings has been upheld. For
example, in Nat'l Wildlife Fed'n v. EPA, 286 F.3d 554, 572 (D.C. Cir.
2002), the D.C. Circuit upheld EPA's decision to set the monthly
average at the 95th percentile by stating that EPA has considerable
discretion in determining a technical approach that will ensure that
the effluent limitations reasonably account for the expected
variability in plant operations while still maintaining an effective
level of control. See also Chemical Mfrs. Ass'n v. EPA, 870 F.2d 177,
229 (5th Cir. 1989) (explaining that the purpose of these variability
factors is to account for routine fluctuations that occur in plant
operation, not to allow poor performance). As is typically the case in
the effluent guidelines program, operators design pollution control
systems to achieve results below the discharge standard on a long-term
basis to account for normal variability of well-operated systems.
Setting the numeric standard at the lowest measured levels or long-term
average levels, as some commenters suggested, does not allow for this
normal variability in system performance.
In the case of ballast water, the operators experience an even
greater challenge meeting the numeric discharge standard than would
exist at a shoreside facility subject to a typical effluent guideline.
Instead of the numeric discharge standard being a long-term or monthly
average as it is for most land-based facilities, the VIDA standard is
based on an instantaneous maximum standard, never to be exceeded. EPA
reasonably selected an instantaneous maximum as the unit of time for
compliance monitoring because of the challenges associated with
monitoring, acknowledging that variations in turbidity, salinity,
temperature and other environmental factors can significantly affect a
vessel operator's ability to meet the discharge standard at all times.
BWMS manufacturers must account for these two conflicting challenges--
continuous compliance and inherent variability--in their system design
and operation. BWMS vendors accomplish this by: (1) designing their
systems to achieve long-term average discharge concentrations that are
lower than the numeric discharge standard; and (2) adequately
controlling for variation in BWMS performance such that the system can
meet the numeric discharge standard even in the most challenging
conditions. Designing and operating BWMSs to consistently achieve
levels close to the numeric discharge standard is poor practice because
even relatively slight variability would result in a high rate of non-
compliance with the instantaneous maximum numeric discharge standard
(and would not, for example, pass the USCG type-approval testing
process). This partially explains why some of the test results
described by the Second Circuit Court decision on the VGP were lower
than the current standard. Nat. Res. Def. Council v. EPA, 808 F.3d 566,
570 n.11 (2d Cir. 2015). EPA recognizes that variability in performance
around the long-term average occurs during normal operations and that,
at times, even well-operated BWMSs are certain to discharge at levels
that are higher than the long-term average performance. EPA considered
the need to consistently meet an instantaneous maximum standard given
system variability in setting its numeric standard, but the standards
suggested by commenters fail to do so.
(c) Alternative Numeric Standards Would Present Monitoring Challenges
As described in the proposed rule (85 FR 67818, October 26, 2020,
section VIII.B.1.v.A.3.iv.), there are monitoring challenges associated
with collecting and analyzing ballast water to detect and quantify
organisms at levels lower than the final numeric standard in this rule.
These challenges gave EPA low confidence in the ability of a vessel to
demonstrate compliance with a lower numeric discharge standard. Even
monitoring to assess compliance with the final discharge standard
presents challenges. For example, in the 2013 VGP, the three-component
self-monitoring program excluded monitoring for the two largest
organism size classes because of the difficulties/costs associated with
directly self-monitoring living organisms in ballast water discharges.
Rather, the 2013 VGP established a self-monitoring program that serves
as an indicator of system performance while operating as the system was
designed (and type-approved).
The proposed rule described the practical and statistical
challenges associated with performing the tests that would be necessary
to show that a well-operated BWMS is able to reliably meet a more
stringent or ``no detectable organisms'' standard and after
consideration of relevant comments, EPA also did not adopt a ``no
detectable organisms'' standard in the final rule. There are no
performance data available at concentrations of less than one organism
per volume of ballast water for the two largest organism size classes.
The Agency noted that test methods (and associated method detection
limits) prevent demonstrating that any BWMS can achieve a standard more
stringent than the 2013 VGP numeric discharge limit. EPA highlighted
that, consistent with findings of EPA's Science Advisory

[[Page 82100]]

Board (SAB), it was unreasonable to assume that a test result showing
zero living organisms using currently available test methods
demonstrates complete sterilization, if for no other reason than a
sample taken represents a very small portion of the overall discharge
and the collection of that sample may miss the few live organisms
present in the discharge. Collecting larger volumes of ballast water to
address this uncertainty is also impractical. For example, the SAB
estimated that anywhere from 120 to 600 cubic meters of ballast water
(similar to the amount of water that would be needed to fill about one
to five standard school buses) would have to be collected to adequately
assess whether the discharge meets a standard 10 times more stringent
(U.S. EPA, 2011).
ii. Ballast Water Reception Facilities
EPA received comments urging that it should base BAT on the use of
ballast water reception facilities. The VIDA expressly excludes from
the discharge standards ``ballast water from a vessel . . . that only
discharges water into a reception facility.'' 33 U.S.C.
1322(p)(2)(B)(ii)(V). As such, CWA section 312(p) does not authorize
EPA to regulate the transfer of ballast water from ships to a reception
facility under the VIDA. Nonetheless, for purposes of the final rule
and consistent with the 2015 Second Circuit Court decision on the VGP,
EPA reviewed and considered whether zero discharge or a more stringent
discharge standard based on the use of a reception facility may be BAT
for ballast water discharged from regulated vessels. Nat. Res. Def.
Council v. EPA, 808 F.3d 566, 572-75 (2d Cir. 2015). Unless otherwise
noted, the terms ``onshore'' and ``reception facility'' refer to both
the transfer of ballast water to either an onshore reception facility
or another vessel for the purpose of storing or treating that ballast
water.
For the reasons detailed in the proposed rule (85 FR 67818, October
26, 2020, section VIII.B.1.v.B.), based on the record before it, EPA
continues to conclude that reception facilities are not technologically
available or economically achievable at this time for the purpose of
establishing a uniform Federal discharge standard. While EPA
understands that the use of reception facilities, if available, may be

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