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. EPA REGION tO OFFICE! OF WA":': RAND WATERSHEDS STATE OF WASHINGTON 

### DEPARTMENT OF ECOLOGY PO Box 47600 • Olympia, WA 98504-7600 • 360-407-6000 711 for Washington Relay Service • Persons with a speech disability can call 877-833-6341 August 28 , 2012

Mr. Michael Bussell, Director Office ofWater and Watersheds US EPA Region 10 1200 Sixth Avenue, Suite 900 Seattle, WA 98101


### RE: Request for final certification ofthe National Pollutant Discharge Elimination System Vessel and Small Vessel General Permits for discharges incidental to the normal operation to waters ofthe U.S. in the state ofWashington
Dear Mr. Bussell:
On December 15,2011, the United States Environmental Protection Agency (EPA) requested the Washington State Department ofEcology (Ecology) either grant or deny certification under 40 CFR 

### § 124.55, or waive its right to certify EPA ' s 

### draft Vessel General Permit (VGP) , and EPA's 

### draft Small Vessel General Permit (sVGP) for Discharges Incidental to the Normal Operation ofvessels to waters ofthe United States located within the state ofWashington.


### AUTHORITIES:
In exercising authority under 33 U.S.C. § 1341 , RCW 90.48.120, and RCW 90.48.260, Ecology has examined this application pursuant to the following: 1. Conformance with applicable water quality-based, technology-based, and toxic or pretreatment effluent limitations as provided under 33 U.S.C. §1311, 1312, 1313, 1316, and 1317 (FWPCA § 301 , 302, 303, 306, and 307); 2. Conformance with the state water quality standards contained in Chapter 173-201A WAC and authorized by 33 U

.S

.C. 

### §1313 and by Chapter 90.48 RCW, and with other applicable state laws; and 3. Conformance with the provision ofusing all known, available, and reasonable methods to prevent and control pollution of state waters as required by RCW 90.48.010. Ecology objects to EPA' s request to certify draft permits that have not been revised to reflect responses made to public comments. Despite our objections, we are conditionally certifying the 

### draftVGPs.

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•'I..**i..~ ,:··** **e- 'tllld~~stan~** **that' fA**  intends to incorporate state-specific conditions into the VGPs via the certification process. EPA has requested Ecology certify the VGP under Section 401(a)(l) ofthe federal Clean Water Act. However, state certifying agencies , including Ecology, must follow state-specific procedures for developing these conditions; and once they are developed, states will be responsible for defending any legal challenges to those conditions. We are faced with the awkward and unreasonable demand from EPA that we base our certification on the draft VGP. Contrary to the requirements outlined in the federal Clean Water Act, we have been asked to certify the draft VGP rather than the proposed final VGP. By requiring certification ofthe draft permit, Ecology is not provided the opportunity to review and evaluate any changes to the draft VGP that EPA makes as a result ofpublic comment. This places the state in the impossible position ofnot knowing exactly what the State is certifying

. The suggestion that states include all relevant conditions in their certification is not reasonable since it means effectively writing a VGP in our state-certification. EPA issued the draft VGPs inNovember 2011 and plans to issue the final permits in November 2012. However, the new permits will not go into effect until the existing permits expire in December 2013. This provides ample time for EPA to make the necessary permit revisions , as a result ofpublic comment, and provide the final draft permits to the states to certify. In addition, we would like to highlight the need to develop effective hullcleaning practices for the control ofinvasive species. Despite our objections, as you have requested, Ecology is conditionally certifying the November 30, 2011 draft VGP

. Ecology's certification conditions for both permits are identical and enclosed with this letter. As stated, Ecology is certifying the terms and conditions contained in the draft VGPs. IfEPA issues a final VGP that contains any changes from the draft VGP, Ecology is denying state-certification ofthe final VGP pending Ecology review ofthe final permit. Ecology' s final certification conditions may be appealed by following the procedures described on the last page ofthat document.
Ifyou have any questions or would like to discuss these matters further, please contact Bill Moore at bill.moore461 @ ecy.wa.gov, or (360) 407-6460; or Randall Marshall at

- randall.marshall4-61 @ecy.wa.gov, or (360) 407- 6445. Sincerely,

y Susewind P.E. , P.G. Water Quality Program Manager Enclosure
cc: Bill Moore Randall Marshall By Certified Mail 7010 0780 0002 3523 6095- RETURN RECEIPT REQUESTEDWASHINGTON STATE 401 CERTIFICATION CONDITIONS 

### for the Vessel General Permits The Washington State Department ofEcology (Ecology) certifies that the activity as proposed and conditioned will be conducted in a manner that will meet the applicable water quality standards and other appropriate requirements of state law. In view ofthe foregoing and in accordance with 33 U.S.C

. § 1341 , RCW 90.48.120, RCW 90.48.260, Chapter 173-200 WAC, and Chapter 173-201 A WAC, water quality certification is granted to EPA for the draft 

### Vessel General Permit (VGP) and the draft 

### Small Vessel General Permit (sVGP) as reviewed and conditioned by the state ofWashington

. Until the final permit has been reviewed and approved by the state, water quality certification does not extend to the final VGP and sVGP ifthey have been changed in any way from the draft permits. Certification ofthis proposal does not authorize the Applicant to exceed applicable state water quality standards (Chapter 173-201A WAC) , ground water standards (Chapter 173-200 WAC) or sediment quality standards (Chapter 173-204 WAC). Furthermore, nothing in this certification shall absolve the Applicant from liability for contamination and any subsequent cleanup of surface waters, ground waters, or sediments occurring as a result ofvessel operations. A. Conditions Related to Washington State Geography 1. The conditions and requirements ofthe Vessel General Permit (VGP) and the Small Vessel General Permit (sVGP) shall extend to all surface waters ofthe state. (Authority- Article XXIV ofthe Washington State Constitution and 43 USC§ 1312.) 2

. Many ofthe instructions in the VGP and the sVGP involve using onshore disposal if available. Proper interpretation ofthese instructions requires knowledge on pumpout facility locations. Ecology's VGP/sVGP webpage contains links to information showing where pumpout facilities are available and providing guidance on other vessel-related environmental issues.
B. Conditions Related to State Law 1. Except for firefighting foam discharged during an emergency, maintenance, or training, discharges to state waters are prohibited which would cause a sheen, film, sludge, foam, turbidity, color, or odor. (authority RCW 90.48.020, RCW 90.48.080, and WAC 173-201A-260(2)(b)) 2. Based upon experience in Washington State with vessel discharges violating RCW 90.48.080 and requirements that the Department ofEcology has routinely imposed since before issuance ofthe original VGP or sVGP, the discharge offish hold effluent while at a dock, pier, or mooring is prohibited. · 3. The release to state waters ofa harmful animal or plant species meets the state' s definition ofpollution in RCW 90.48.020 and would be a violation ofRCW 90.48

.080, WAC 173-201A-260(2)(a), and the sVGP. sVGP Part 2.6(f) requires vessel operators to periodically inspect and clean vessel hulls ifnecessary to prevent the spread or dispersal ofinvasive species. sVGP Part 2.6(g) requires vessel operators to minimize the transport ofvisible living organisms from one water body

Washington State 401 Certification Conditions for the Vessel General Permits P ageJ lto another. sVGP Part 3.2 requires quarterly inspection ofthe visible portions of the hull. Regular cleaning ofhulls and niche areas is the only routinely available nontoxic method for minimizing transport ofattached living organisms.
The release ofnonnative aquatic animal species from in-water cleaning of vessel hulls, niche areas, and running gear without approval from the Washington Department ofFish and Wildlife (WDFW) is forbidden by RCW 77.15.253

. The state VGP/sVGP webpage described in Condition F. contains contact information and instructions for seeking WDFW approval. Allowing biofouling to accumulate and mature without hull cleaning can also be interpreted as an illegal release. Operators ofvessels with hulls which have not been cleaned for months or that are involved in extended unmanned periods or other layups should conduct a hull inspection. A hull inspection under these circumstances is especially needed before leaving on a voyage to Washington State waters or a voyage between COTP zones within the state. In accordance with paragraphs 2.6(f) and 2.6(g) ofthe sVGP, vessel operators must periodically conduct hull inspections and perform hull cleaning ifneeded. 

### C. Notification Condition The following incidents must be reported as soon as possible but no more than 24 hours after first becoming aware oftheir occurrence to the Washington State Department ofHealth (WDOH) at 360-236-3330 or 360-789-8962 (after hours). Information provided should include the discharge location (latitude and longitude), discharge volume, discharge type, date and time, and duration ofdischarge. WDOH need not be notified of any incident not occurring in state waters. (Authority- RCW 69.30.130.)

• A discharge ofgraywater in violation of sVGP Part 2.7.

• Any vessel discharge containing sewage ifthe discharge exceeds the bacterial or suspended solids standards in 40 CFR 

### § 140.3(d).

• Any upset in a disinfection system. 

### D. State Inspection Authority 1. In accordance with RCW 90.48.090, Department ofEcology inspectors shall have access to the ship at reasonable times and locations for the purpose of sampling discharges covered by the sVGP, interviewing crew members, and inspecting log books and other relevant records. 2. In accordance with WAC 220-150-033, WDFW inspectors shall have access at any time to any vessel carrying or capable ofcarrying ballast water in order to provide technical assistance, assess compliance, and enforce the requirements of Chapter 220- 150 WAC.

Washington State 401 Certification Conditions for the Vessel General Permits Page 

## 12E. Reopener The Water Quality Certification may be revoked ifinformation becomes available that the sVGP is not protective of state water quality

. Certification conditions may be withdrawn, added, or modified ifnecessary to protect water quality or improve implementation and enforcement. The Department ofEcology will provide public notice ofany proposed changes to the certification or conditions

. F. State VGP/sVGP Webpage In order to assist the public and shipping industry with sVGP requirements and related information, the Department ofEcology maintains a VGP/sVGP webpage at: http://www

.ecy.wa. gov /programs/wq/permi

### tsNGP/index.html. The webpage describes the legal history ofthe vessel permits and provides links to important state and federal documents. The webpage has guidance for graywater discharges , oily water separator discharges , and in-water load line painting. Hull cleaning guidance will be developed and added. Information will be added on no discharge zones when they are granted. Guidance on pumpout facilities will be included. G. Timing Requirements: This Certification/Consistency Determination shall remain in effect until December 18, 2017 or until the State invokes Condition E. to withdraw or modify this Certification. :YOUR RIGHT TO APPEAL You have a right to appeal this Certification/Consistency Determination to the Pollution Control Hearings Board (PCHB) within 30 days ofthe date ofreceipt ofthis Certification/Consistency Determination. The appeal process is governed by Chapter 43.21B RCW and Chapter 371-08 WAC. "Date ofreceipt" is defined in RCW 43.21B.001(2)

. To appeal you must do all ofthe following within 30 days ofthe date ofreceipt ofthis Certification/Consistency Determination:
• File your appeal and a copy ofthis Certification/Consistency Determination with the PCHB (see addresses below)

. Filing means actual receipt by the PCHB during regular business hours.

• Serve a copy ofyour appeal and this Certification/Consistency Determination on Ecology in paper form- by mail or in person. (See addresses below.) Email is not accepted.
You must also comply with other applicable requirements in Chapter 43.21B RCW and Chapter 371-08 WAC.

Washington State 401 Certification Conditions for the Vessel General Permits P age 

## 13ADDRESS AND LOCATION INFORMATION
Street Addresses Mailing Addresses Department ofEcology Department ofEcology Attn: Appeals Processing Desk Attn: Appeals Processing Desk 300 Desmond Drive SE PO Box 47608 Lacey, WA 98503 Olympia, WA 98504-7608
Pollution Control Hearings Board Pollution Control Hearings Board 1111 Israel RD SW, Suite 301 Tumwater, W A 98501

DATED this 28 1 h day ofAugust, 2012**11** usewind, P.E. , P.G

. W er Quahty Program Manager Washington State Department ofEcology PO Box 40903 Olympia, WA 98504-0903

Washington State 401 Certification Conditions for the Vessel General Permits Page 

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