Proposed Small Vessel General Permit (sVGP) Fact Sheet



## United S tates Environmental Protection Agency



# National Pollutant Discharge Elimination System (NPDES) Small Vessel General Permit ( sVGP) f

or Discharges Incidental to the Normal Operation of Vessels L ess than 79 Feet Fact Sheet

Agency: Environmental Protection Agency (EPA) Action: Notice of NPDES General PermitProposed Small Vessel General Permit (sVGP) Fact Sheet

i TABLE OF CONTENTS

1. GENERAL INFORMATION

............................................................................................................ 1

1.1 D OES THIS A CTION A PPLY TO M E ?

....................................................................................................... 1 1.2 P UBLIC C OMMENT

................................................................................................ ................................ . 1 1.2.1 Submitting Comments

........................................................................................................................... 1 1.2.2 What Should I Consider as I Prepare My Comments for EPA?

............................................................ 2 1.2.3 Tips for Preparing Your Comments

....................................................................................................... 2 1.2. 4 How and to Whom Do I Submit Comments?

........................................................................................ 3 1.3 P UBLIC H EARING , MEETINGS , AND WEBCAST I NFORMATION

................................................................ . 3 1.3.1 Public Hearing

................................................................................................ ....................................... 3 1.3.2 Public Meetings

................................................................................................ ..................................... 3 1.3.3 Webcast

................................................................................................ ................................................. 4 1.4 F URTHER I NFORMATION

........................................................................................................................ 4

2. BACKGROUND

................................................................................................ ................................ . 4

2.1 T HE C LEAN W ATER A CT

....................................................................................................................... 4 2.2 L EGAL C HALLENGE TO THE E XCLUSION OF V ESSELS

............................................................................ 5 2.3 C ONGRESSIONAL L EGISLATION

............................................................................................................. 5 2.4 G ENERAL P ERMITS

................................................................................................ ................................ 6 2.5 E CONOMIC I MPACTS

.............................................................................................................................. 7

3. PERMIT OVERVIEW

....................................................................................................................... 8

3.1 S TRUCTURE OF THE P ERMIT

.................................................................................................................. 8 3.2 T HE V ESSEL U NIVERSE A FFECTED BY THIS P ERMIT

.............................................................................. 9 3.2.1 Commercial Fishing Vessels

................................................................................................................ 11 3.2.2 Other Non

- recreational Vessels

........................................................................................................... 11 3.2.3 Ve ssel Size

................................................................................................ ........................................... 12 3.3 E LIGIBILITY

................................................................................................ ......................................... 12 3.4 W ATERS C OVERED /G EOGRAPHIC S COPE

............................................................................................. 13 3.5 O BTAINING C OVERAGE U NDER T HIS P ERMIT

...................................................................................... 13 3.5.1 No Requirement to Submit a Notice of Intent (NOI)

........................................................................... 14 3.5.2 Terminating Coverage

......................................................................................................................... 15 3. 6 V ESSEL D ISCHARGES E LIGIBLE FOR C OVERAGE

................................................................................. 15 3.7 V ESSEL D ISCHARGES NOT E LIGIBLE FOR C OVERAGE

.......................................................................... 15 3.7.1 Discharges not Subject to Former NPDES Permit Exclusion including Vessels Being Operated in a Capacity other than as a Means of Transportation

.............................................................................. 16 3.7.2 Sewage from Vessels

........................................................................................................................... 17 3.7.3 Used or Spent Oil

................................................................................................ ................................ . 17 3.7. 4 Garbage or Trash

................................................................................................ ................................ . 17 3.7.5 Tetrachloroethylene (Perchloroethylene) Degreasers and Other Products

.......................................... 17 3.7.6 Discharges Currently or Previously Covered by Another NPDES Permit

.......................................... 18 3.8 C ONSTITUENTS C ONTROLLED BY THIS P ERMIT

................................................................................... 18 3.8.1 Aquatic Nuisance Species

.................................................................................................................... 18 3.8.2 Nutrients

................................................................................................ .............................................. 19 3.8.3 Pathogens

................................................................................................ ............................................. 20 3.8.4 Oil and Grease

................................................................................................ ..................................... 21 3.8.5 Metals

................................................................................................ .................................................. 22 3.8.6 Toxic and Non

- Conventional Pollutants with Toxic Effects

............................................................... 23 3.8.7 Other Non

- Conventional and Conventional Pollutants (Except Fecal Coliform)

................................ 23

4. THE SVGP EFFLUENT LI MITS AND RELATED REQ UIREMENTS

................................... 24

4.1 G ENERAL R EQUIREMENTS

................................................................................................................... 25 4.2 F UEL M ANAGEMENT

........................................................................................................................... 25Proposed Small Vessel General Permit (sVGP) Fact Sheet

ii 4.3 E NGINE AND O IL C ONTROL

................................................................................................................. 26 4.4 S OLID AND L IQUID W ASTE M ANAGEMENT

......................................................................................... 27 4.5 D ECK W ASHDOWN AND R UNOFF AND A BOVE THE W ATER L INE H ULL C LEANING

............................. 27 4.6 V ESSEL H ULL M AINTENANCE

............................................................................................................. 28 4.7 G RAYWATER

................................................................................................ ....................................... 29 4.8 F ISH H OLD E FFLUENT

......................................................................................................................... 30 4.9 B ALLAST W ATER

................................................................................................ ................................ 31 4.10 S EAWATER C OOLING O VERBOARD D ISCHARGE (I NCLUDING N ON -C ONTACT E NGINE C OOLING W ATER ; H YDRAULIC S YSTEM C OOLING W ATER , R EFRIGERATION C OOLING W ATER )

........................................... 32 4.11 C OMPLIANCE WITH OTHER STATUTES AND R EGULATIONS

.................................................................. 32 4.11.1 Clean Water Act Section 311 (33 U.S.C. 1321)

.................................................................................. 33 4.11.2 National Marine Sanctuaries Act (16 U.S.C. Section 1431 et seq. and implementing regulations found at 15 CFR Part 922 and 50 CFR Part 404 [NMSA])

.......................................................................... 33 4.11.3 USDA Federal Noxious Weed Act, 7 CFR Part 361

........................................................................... 34 4.11.4 Act to Prevent Pollution From Ships (APPS), 33 U.S.C. 1901

............................................................ 34 4.11.5 The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. 136 et seq.)

................. 35 4.11.6 Oil Pollution Control Act (33 U.S.C . 2701 et seq.)

............................................................................. 35 4.12 EPA E STABLISHMENT OF T ECHNOLOGY -B ASED E FFLUENT L IMITS IN THE S VGP

.............................. 35 4.12.1 Background

................................................................................................ .......................................... 35 4.12.2 The Clean Water Act Requires EPA to Develop Effluent Limitations that Represent the Following: 36 4.12.2.1 Best Practicable Control Technology Currently Available (BPT)

.................................................................... 36 4.12.2.2 Best Conventional Pollutant Control Technology (BCT)

.................................................................. 36 4.12.2.3 Best Available Technology Economically Achievable (BAT)

............................................................ 36 4.12.3 Numeric Limitations are Infeasible

...................................................................................................... 37 4.12.4 Technology

- Based Effluent Limits

...................................................................................................... 38 4.12.4.1 Types of Technology

- Based Effluent Limits

....................................................................................... 38 4.12.4.2 Inclusion of Non

- Numeric Technology

- Based Limits in NPDES Permits

.......................................... 38 4.12.4.3 EPA’s Decision to Include Non

- Numeric Technology

- Based Effluent Limits in This Permit and Rationale for Why the Limits Represent the Appropriate (BPT, BCT, or BAT) Level of Control

.... 39 4.12.4.3.1 Non

- Numeric Technology

- Based Effluent Limits in This Permit

.................................................... 39 4.12.4.3.2 Requirements are Technologically Available and Meet the BPT and BAT Economic Tests Set Forth in the CWA

................................................................................................ ......................................... 40

5. MONITORING AND RECOR DKEEPING

................................................................................... 41

5.1 R ECORDKEEPING

................................................................................................ ................................ . 41 5.2 R OUTINE Q UARTERLY V ISUAL I NSPECTION

........................................................................................ 41

6. ADDITIONAL REQUIREME NTS

................................................................................................ . 42

6.1 C ONTINUATION OF THE P ERMIT

........................................................................................................... 42 6.2 A LTERNATIVE P ERMITS

....................................................................................................................... 42 6.2.1 EPA Requiring Coverage under an Alternative Permit

....................................................................... 42 6.2.2 Permittee Requesting Coverage under an Alternative Permit

.............................................................. 42 6.3 P ERMIT C OMPLIANCE

.......................................................................................................................... 43 6.4 O THER P ERMIT C ONDITIONS (P ARTS 4.4

- 4.10 OF THE S VGP)

............................................................. 43 6.5 W ATER Q UALITY -B ASED E FFLUENT L IMITATIONS

............................................................................. 43 6.6 O THER L EGAL R EQUIREMENTS

........................................................................................................... 46 6.6.1 Ocean Discharge Criteria

..................................................................................................................... 46 6.6.2 Coastal Zone Management Act (CZMA)

............................................................................................. 48 6.6.3 Endangered Species Consultation

........................................................................................................ 48 6.6.4 Tribal Consultation

.............................................................................................................................. 48 6.6.5 Essential Fish Habitat Consultations

................................................................................................... 49

7. STATE OR TRIBAL REQU IREMENTS RESULTING F ROM 401 CERTIFICATIO N

........ 49

8. DEFINITIONS

................................................................................................ .................................. 49

9. REFERENCES

................................................................................................ ................................ . 49Proposed Small Vessel General Permit (sVGP) Fact Sheet

1 1. GENERAL INFORMATION

EPA has generally worded this fact sheet as if the proposed permit was final, using phrasing such as “the Permit requires XXX” rather than “the Permit, if finalized, would require XXX” or “the draft permit would require XXX,” because we believe this presentation would best allow commenters to see how the fact sheet would appear in final form. However, EPA will consider all public comments on the proposed permit and fact sheet and will make appropriate changes in response to such comments.

1.1 D OES THIS A CTION A PPLY TO M E ?

This permit is applicable to discharges incidental to the normal operation of vessels identified in Part 1.4 from non- recreational vessels less than 79 feet (24.08 meters) into waters subject to this permit. Recreational vessels a s defined in section 502(25) of the Clean Water Act and vessels of the Armed Forces as defined in Section 312 (a)(14) of the Clean Water Act are not subject to this permit.

1.2 P UBLIC C OMMENT

EPA is soliciting comment on the draft S mall V essel G eneral P ermit (sVGP) . Comments on any provision of the permit, or comments on the draft fact sheet discussion, are welcome. The comment period is open for 75 days from publication of the Notice in the Federal Register announcing this permit. EPA’s policy is that all co mments received will be included in the public docket without change and may be made available online at www.regulations.gov

.

1.2.1 Submitting Comments

Comments may be submitted to EPA in the following ways:

• EPA Docke ts . Use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments . Go directly to www.regulations.gov and follow the online instructions for submitting comments. Once in the system, select “search” and then Docket ID No. EPA- HQ

- OW -2011-0150. The system is an “anonymous access” system, which means EPA will not know your identity, email address, or other co ntact information unless you provide it in the body of your
comment.

• Email. Comments may be sent by electronic mail (email) to ow-docket@epa.gov

, Attention: Docket ID No. EPA

- HQ

- OW -2011-0150. In contrast to EPA's el ectronic public docket, EPA's email system is not an “anonymous access” system. If you send an email comment directly to the Docket without going through EPA's electronic public docket, EPA's email system automatically captures your email address. Email ad dresses that are automatically captured by EPA's email system are included as part of the comment that is placed in the official public docket and are made available in EPA's electronic public docket.

• Disk or CD-ROM. You may submit comments on a disk or CD- ROM that you mail to the mailing address identified below. These electronic submissions will be accepted inProposed Small Vessel General Permit (sVGP) Fact Sheet

2 Microsoft Word or ASCII file format. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Avoid the use of special characters and any form of encryption.

• By Mail. Send the original and three copies of your comments to: Water Docket, Environmental Protection Agency, Mailcode: 4101T, 1200 Pennsylvania Ave., NW, Washington, DC, 20460, Attention: Docket ID No. EPA

- HQ

- OW -2011-0150.

• By Hand Delivery or Courier. Deliver your comments to: Public Reading Room, Room B102, EPA West Building, 1301 Constitution Avenue NW, Washington, DC 20004, Attention Docket ID No. EPA

- HQ

- OW -2011-0150 . Such deliveries are only accepted during the Docket's normal hours of operation, as identified in s ection 1.2.4 below. Special arrangements should be made for deliveries of boxed information.

1.2.2 What Should I Consider a s I Prepare My Comments for EPA?

Submitting Confidential Business Information (CBI). Do not submit this information to EPA through www.regulations.gov or email. Clearly mark all the information that you claim to be CBI. For CBI information on a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD- ROM as CBI and then electroni cally identify within the disk or CD

- ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CB I must be submitted for inclusion in the public docket. CBI so marked will not be disclosed , except in accordance with procedures set forth in 40 CFR Part 2.

1.2.3 Tips for Preparing Your Comments

Please follow these guidelines as you prepare your comments so that EPA can better address them in a timely manner.

• Identify the agency action by docket number and other identifying information (subject heading, Federal Register date, and page number).

• Explain why you agree or disagree with any proposed provisions; suggest alternatives and substitute language for your requested changes. You may wish to examine the draft NPDES Vessel General Permit (VGP) for discharges incidental to the normal operation of commercial vessels , also proposed today, for further information about issues associated with permitting vessel discharges.

• Describe any assumptions and provide any technical information and/or data that you used.

• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

• Provide specific examples to illustrate your concerns, and suggest alternatives.

• Explain your views as clearly as possible.

• Make sure to submit your comments by the comment period deadline. EPA is notProposed Small Vessel General Permit (sVGP) Fact Sheet

3 obligated to ac cept or consider late comments.

1.2.4 How and to Whom Do I Submit Comments?

The opportunity to raise issues and provide information on this general permit is during the public comment period (see 40 CFR 124.13 for more information). You may submit comments el ectronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. To ensure that EPA can read, understand, and therefore, properly respond to comments, the Agency would prefer that commenters cite, where possible, the paragraph(s) or section in the fact sheet or permit to which each comment refers. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late
comments.

For additional information about EPA’s public docket, visit the EPA Docket Center home page at http://www.epa.gov/epahome/dockets.htm . Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Water Docket in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave., NW, Washington, DC. A reasonable fee may be charged for copying. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Water Docket is (202) 566-1744.

1.3 P UBLIC H EARING , MEETINGS , AND WEBCAST I NFORMATION

1.3.1 Public Hearing

Because EPA anticipates a significant degree of public interest in the sVGP, EPA will hold a public hearing on Wednesday January 11, 2012 to receive public comment and answer questions concerning the draft sVGP (and draft VGP), and will present the proposed requirements of the draft VGP and the draft sVGP and the basis for those requirements. The heari ng will be held at EPA East Room 1153, 1201 Constitution Ave NW, Washington DC 20460 , from 9:00 a.m. to 5:00 p.m. (EST) or until all comments have been heard. Any person may provide written or oral statements and data pertaining to the draft permits at th e public hearing. Depending on the number of people who desire to make an oral statement, EPA may impose limits on the time allowed for oral statements, which may result in the full statement not being heard. Therefore, EPA recommends that all those planning to present oral statements also submit written statement s . Any person not making an oral statement may also submit a written statement. Please note that the public hearing may close early if all business is finished.

1.3.2 P ublic Meetings

The focus of t he public meeting is to present the proposed requirements of the sVGP (and VGP) and the basis for those requirements, as well as to answer questions concerning the draft permits. At this meeting , any person may provide written or oral statements and data pertaining to the draft permits. The date, time , and location of the public meet ing is as follows:

• Monday January 23, 2012, 10 a.m. to 5 p.m. CST or until all comments have been heard

,Proposed Small Vessel General Permit (sVGP) Fact Sheet

4 Ralph H. Metcalfe Federal Building, Room 331, 77 West Jackson Blvd, Chicago IL 60604.
Depend ing on public interest, EPA may host at least one additional public meeting. Please see EPA’s w ebpage at www.epa.gov/npdes/vessels , which will announce any additional public meetings . EPA will announce the public meeting on its w ebpage at least four weeks before it is scheduled to occur.

EPA encourages interested and potentially affected stakeholders to attend one of the scheduled public meetings or hearings and provide oral or wri tten comments. These meetings are open to the public. Please note that the public meeting may end early if all business is finished. Oral or written comments received at the public meeting will be entered into the Docket. If you are unable to attend, y ou may submit comments to the EPA Water Docket at th e address listed under Section 1.2.1 of this fact sheet.

1.3.3 Webcast

EPA is scheduling a webcast to provide information on the draft permits and to answer questions for interested parties that are unable to attend the public meetings or public hearing. For information on the time, how to register, and how to attend the webcast, see EPA’s w ebsite
at http://www.epa.gov/npdes/vessels . EPA plans to schedule this webcast in the latter half of January and will announce it on its w ebpage at least four weeks before it is scheduled to occur

.

1.4 F URTHER I NFORMATION

For further information on the sVGP, please send an email to svgp@epa.gov or contact Robin Danesi at (202) 564-1846 or Ryan Albert at (202) 564-0763.

2. BACKGROUND

2.1 T HE C LEAN W ATER A CT

Section 301(a) of the Clean Water Act (CWA) provi des 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). The CWA defines “discharge of a pollutant” as “(A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or ocean from any point source other than a vessel or other floating craft.” 33 U.S.C. 1362(12). A “point source” is a “discernible, confined

an d discrete conveyance” and includes a “vessel or other floating craft.” 33 U.S.C. 1362(14).

The term “pollutant” includes, among other things, “garbage...chemical wastes...and industrial, municipal, and agricultural waste discharged into water.” The Act’s definition of “pollutant” specifically excludes “sewage from vessels or a discharge incidental to the normal operation of a vessel of the Armed Forces” within the meaning of CWA 312.33 U.S.C. 1362(b).

One way a person may discharge a pollutant without violating the section 301 prohibition is by obtaining authorization to discharge (referred to herein as “coverage”) under a section 402 National Pollutant Discharge Elimination System (NPDES) permit (33 U.S.C. 1342). UnderProposed Small Vessel General Permit (sVGP) Fact Sheet

5 section 402(a), EPA may “issue a permit for the discharge of any pollutant, or combination of pollutants, not withstanding section 1311(a)” upon certain conditions required by the Act.

2.2 L EGAL C HALLENGE TO THE E XCLUSION OF V ESSELS

In December 2003, a long-standing exclusion of discharges incidental to the normal operation of vessels from the NPDES program became the subject of a lawsuit in the U.S. District Court for the Northern District of California. On March 30, 2005, the U.S. District Court for t he Northern District of California determined that the exclusion exceeded the Agency’s authority under the CWA. Following the submission of briefs and oral arguments by parties and intervenors on the issue of a proper remedy, the District Court issu ed a f inal order in September 2006 providing that:

The 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. Northwest Envtl. Advocates et al. v. United States EP A , 2006 U.S. Dist. LEXIS 69476 (N.D. Cal. 2006)

EPA appealed the District Court’s decision to the Ninth Circuit , and on July 23, 2008, the Court upheld the decision. Northwest Envtl. Advocates v. EPA

, 537 F.3d 1006 (9th Cir. 2008). T his mean t that, effect ive December 19, 2008, except for those vessels exempted from NPDES permitting by congressional legislation, discharges incidental to the normal operation of vessels that were excluded from NPDES permitting by 40 CFR 122.3(a) were subject to CWA section 301’s prohibition against discharging, unless authorized by an NPDES permit. The CWA authorizes civil and criminal enforcement for violations of that prohibition and also allows for citizen suits against violators.

2.3 C ONGRESSIONAL L EGISLATION

In late July 2008, Congress enacted two pieces of legislation to exempt discharges incidental to the normal operation of certain types of vessels from the need to obtain an NPDES permit.

The first of these, entitled the Clean Boating Act of 2008, amends the CWA to provid e that discharges incidental to the normal operation of recreational vessels are not subject to NPDES permitting, and instead, creates a new regulatory regime to be implemented by EPA and the U.S. Coast Guard under the new 312(o) of the CWA. S. 2766, Pub. L. 110-188 (July 29, 2008). As defined in § 3 of that law, recreational vessels subject to its NPDES exclusion are any vessel that is manufactured or used primarily for pleasure or leased, rented, or chartered to a person for the pleasure of that person, but do not include a vessel that is subject to Coast Guard inspection and that is engaged in commercial use or carries paying passengers. As a result of this legislation, discharges incidental to the normal operation of recreational vessels ar e not subject to NPDES permitting. EPA is currently developing regulations as directed under the Clean Boating Act for recreational vessels. For more information on this action, please see: http://water.epa.gov/lawsregs/lawsguidance/cwa/vessel/CBA/about.cfm

. The second piece of legislation provides for a temporary moratorium on NPDES permitting for discharges subject to the 40 CFR 122.3(a) exclusion from (1) commercial fish ingProposed Small Vessel General Permit (sVGP) Fact Sheet

6vessels (as defined in 46 U.S.C. § 2101 and regardless of size) and (2) from those other nonrecreational vessels less than 79 feet in length. S. 3298, Pub. L. 110-299 (July 31, 2008). The statute’s NPDES permitting moratorium ran for a two

- year period beginning on its July 31, 2008 enactment date, during which time EPA was to study the relevant discharges and submit a report to Congress. EPA finalized this Report to Congress, entitled “Study of Discharges Incidental to Normal Operation of Commercial Fi shing Vessels and Other Non- Recreational Vessels Less Than 79 Feet” in August 2010 (EPA, 2010) 1 . The moratorium was subsequently extended to December 18, 2013 by P.L. 111-215. In addition, the statute’s NPDES permitting moratorium does not extend to ballast water discharges. That moratorium also does not extend to other discharges, which on a case

- by

- case basis, EPA or the state, as appropriate, determine contribute to a violation of water quality standards or pose an unacceptable risk to human health or t he environment.

In order to ensure that permit coverage is available to vessels by the expiration of the moratorium, EPA is proposing today’s sVGP.

2.4 G ENERAL P ERMITS

An NPDES permit authorizes the discharge of a specified amount of a pollutant or pollutants into receiving water under certain conditions. The two basic types of NPDES permits are individual and general permits. Typically, dischargers seeking coverage under a general permit are required to submit a notice of intent (NOI) to be covered by the pe rmit. However, EPA is not requiring vessel owner/operators to submit NOIs to be covered by the sVGP. See S ection 3.5 of this fact sheet for additional discussion regarding EPA’s application of the NPDES NOI regulations to this permi t.

An individual permit is a permit specifically tailored for an individual discharger. Upon receiving the appropriate application(s), the permitting authority generally develops a perm it for public comment for that particular discharger based on the information contained in the permit application (e.g., type of activity, nature of discharge, receiving water quality). Following consideration of public comments, a final permit may then be issued to the discharger for a specific time period (not to exceed five years), with a provision for reapplying for further permit coverage prior to the expiration date.

A general permit is also subject to public comment and is developed and issued by a permitting authority (in this case, EPA). A general permit covers multiple facilities within a specific category for a specific period of time (not to exceed five years), after which the permit expires. Like individual permits, general permits may be reiss ued. Under 40 CFR 122.28, general permits may be written to cover categories of point sources having common elements, such as facilities that involve the same or substantially similar types of operations, that discharge the same types of wastes, or that are more appropriately regulated by a general permit. Given the vast number of vessels requiring NPDES permit coverage and the discharges common to these vessels, EPA believes that it makes administrative sense to issue the general permit, rather than issuin g individual permits to each vessel. Courts have approved of the use of general permits.

1 EPA’s 2010 Vessels Report to Congress cited here is discussed later in this fact sheet and available in its entirety
at: www.epa.gov/npdes/vessels

.Proposed Small Vessel General Permit (sVGP) Fact Sheet

7 See for example Natural Res. Def. Council v. Costle , 568 F.2d 1369 (D.C. Cir. 1977); EDC v. US EPA , 344 F.3d 832, 853 (9 th Cir. 2003). The general permit approach allows EPA to allocate resources in a more efficient manner and to provide more timely coverage. As with any permit, the CWA requires the general permit to contain technology- based effluent limits, as well as any

mor e stringent limits when necessary to meet applicable state water quality standards. State water quality standards apply in the territorial seas, defined in section 502(8) of the CWA as extending three miles from the baseline. Pacific Legal Foundation v. Co stle , 586 F.2d 650, 655- 656 (9 th Cir. 1978); Natural Resources Defense Council, Inc. v. U.S. EPA , 863 F.2d 1420, 1435 (9 th Cir. 1988). In addition, discharges to the territorial seas are required to meet requirements to comply with section 403(c) of the CWA Ocean Discharge Criteria (40 CFR Part 125 Subpart M). As discussed in Section 6.2 of this fact sheet, the owner/operator of a vessel, after being covered by the permit, may request to be excluded from such coverage by applying for an individual permit. In addition, EPA may subsequently require a vessel to obtain an individual permit instead of receiving coverage under the general permit.

2.5 E CONOMIC I MPACTS

EPA esti mates that between 115,000 and 138,000 vessels are potentially affected by the sVGP requirements. The establishments that own and operate vessels that will be subject to the sVGP are primarily associated with the fishing and water transportation industries , and with the oil and gas sector within the mining industry. To estimate the effect of sVGP requirements on an industry as a whole, EPA’s analysis takes into account previous conditions and determines how the industry would act in the future in the absenc e of p ermit requirements. The baseline for this analysis is full industry compliance with existing federal and state regulations and with current industry practices or standards that exceed current regulations to the extent that they can be empirically obs erved. EPA estimated potential compliance costs to vessels associated with each of the practices and discharge categories identified in the sVGP, and with the inspection and recordkeeping requirements. Overall, EPA finds that sVGP requirements could resul t in total annual incremental costs for domestic vessels ranging between $7.0 million and $12.1 million (2010$) in the aggregate. This includes the paperwork burden costs and the sum of all practices for applicable discharge categories. Per vessel incremental compliance costs average between $17 and $98 per year, depending on the number of applicable discharge categories and baseline practices.

To evaluate economic impacts of sVGP requirements on the affected industries, EPA performed a firm

- level analysis . The firm

- level analysis examines the impact of any incremental cost per vessel to comply with the sVGP requirements on model firms that represent the financial conditions of “typical” businesses in each of the examined industry sectors. Since nearly all firms in the affected industries are small, the firm

- level analysis focuses on assessment of impacts on small businesses. Further, given the distribution of revenue among firms in the affected industry sectors

, which suggests a relatively greater potential for impacts to small firms in the commercial fishing industry, EPA looked more specifically at this industry when assessing the significance of impacts. To evaluate the potential impact of the sVGP on small entities, EPA used a cost

- to

- revenue test to eva luate the potential severity of economic impact on vessels and facilities owned by small entities. The test calculates annualized pre

- tax compliance cost as a percentage of total revenues and uses a threshold of 1 and 3 percent to identify facilities that would be significantly impacted as a result of this p ermit. Based on this firm

- level analysis, EPAProposed Small Vessel General Permit (sVGP) Fact Sheet

8 concludes that the sVGP will not, if issued have a significant economic impact on a substantial number of small entities based on information showing that few firms have revenue below those where the compliance costs would exceed the 1 percent cost

- to -revenue threshold under high-end cost assumptions.

3. PERMIT OVERVIEW

Today’s permit is proposed pursuant to EPA’s authority to issue permits under CWA section 402 . Clean Water Act section 402 and its implementing regulations contain standards that govern EPA’s imposition of NPDES permit conditions. See for example , 40 CFR Part 122 (“EPA Administered Permit Programs: The National Pollutant Discharge Elimination Syst em”).

3.1 S TRUCTURE OF THE P ERMIT

This general permit addresses all vessels less than 79 feet in length, except recreational and military vessels, operating in a capacity as a means of transportation, that have discharges incidental to their normal operation.

EPA has developed this permit to accommodate the variety of vessel types less than 79 feet in length that will need to obtain permit coverage. Owner/operators of vessels covered under this permit may not be familiar with NPDES requirements and general or individual permits, so EPA has focused on developing a permit tailored to this particular universe of vessels. Part 1 of the permit provides a basic overview of the permit and how to obtain coverage. Part 2 of the permit contains the effluent limits and related requirements. This section has been organized into management areas rather than discharge

- by

- discharge requirements like EPA’s VGP. It contains general discharge requirements for all vessel discharges, followed by specific requirements for seven other management areas

, including fuel management ; engine and oil controls; solid and liquid waste management ; deck washdown and runoff and above water line hull cleaning; vessel hull maintenance; graywater ; and fish hold effluent. There is also a requirement to comply with specific other regulations applicable to vessel discharges . This organization allows EPA to develop permit terms and conditions that are more sui table for the vessels whose discharges are covered by this permit. Part 3 of the permit contains the monitoring and recordkeeping requirements. Part 4 contains additional requirements, such as how to obtain an alternate permit, specifics about complying with the permit, and additional permit conditions. States, t erritories and certain tribes have the authority to require additional requirements under section 401 of the CWA. These additional requirements will be included in Part 5 of the final permit. Th e final two sections of the permit contain definitions in Part 6 and contacts in Part 7.

Appendix A of this permit is the proposed Permit Authorization and Record of Inspection Form that will be required to be completed and maintained onboard each vesse l.Proposed Small Vessel General Permit (sVGP) Fact Sheet

9 3.2 T HE V ESSEL U NIVERSE A FFECTED BY THIS P ERMIT

EPA estimates that there are between 118,000 and 140,000 vessels in the United States subject to the permitting moratorium established by P.L. 110 -299. 2 Approximately 115,000
to 138,000 of these vessels are less than 79 feet. Roughly one- half of these vessels are commercial fishing vessels involved in such activities as fish catching (e.g., longliner, shrimper, trawler), fish processing

, 3 fishing tenders, and charter fishing. The other half is distributed among a variety of vessel classes, including passenger vessels (e.g., water taxis, tour boats, harbor cruise ships, dive boats), utility vessels (e.g., tug/tow boats, research vessels, offshore supply boats), and freight barges. The a pp roximately 2 ,000 large commercial fishing vessels included in the permitting moratorium that are greater than 79 feet are not eligible for coverage under the sVGP ; instead they are eligible for coverage under EPA’s VGP

. As discussed above, t he vessel universe eligible for coverage under this permit is limited to commercial fishing vessels and other non- recreational vessels 79 feet or less. According to the U.S. Coast Guard’s Marine Information for Safety and Law Enforcement (MISLE) database, nearly 80 percent (722,522 vessels) of the 918,469 operational domestic vessels recorded in MISLE are recreational vessels, which are not subject to NPDES permitting requirements. Approximately 7.6 percent of these vessels are identified as commercial fis hing vessels. The remainder of the MISLE universe of vessels less than 79 feet is composed of other types of nonrecreational vessels such as freight and tank barges and ships, passenger vessels, and utility vessels (10.5 percent collectively ) , and vessels of unspecified service (3 percent).

Table 1 characterizes the vessel population in terms of length greater than or equal to and less than 79 feet. Figure 1 presents the MISLE population of operational, domestic vessels less than 79 feet for all vessel service categories, excluding recreational vessels. The remainder of this section gives additional detail about vessels eligible for coverage under the sVGP. For additional discussion about these vessels, please see EPA’s 2010 Vessels Repor t to Congress (E PA, 2010).

Table 1: Population of Operational, Domestic MISLE Vessels by Vessel Length

Recreational Commercial Fishing Other Non

Recreational Unspecified Greater than or Equal to 79 ft 2,256 2,231 2 54,142 1,991 Less than 79 ft 676,915 54,176 32,799 15,011 Zero or Null 1 43,351 13,537 9,696 12,364 Total 722,522 69,944 96,637 29,366 Source: U. S. Coast Guard, MISLE database, 2009

1 MISLE indicates a length of zero or the vessel length field is blank.

2 A separate estimate provided by U.S. Coast Guard personnel suggests that commercial fishing vessels 79 feet or greater number approximately 1,800 to 1,900 vessels.

2 This range accounts for the exclusion and inclusion, respectively, of other non

- recreational vessels for which U.S. Coast Guard’s Marine Information for Safety and Law Enforcement (MISLE) database does not record the length or for which the recorded length is zero.

3 Seafood processing vessel discharges are an industrial activity; therefore, seafood processing activities are not eligible for coverage under this permit. EPA or state NPDES permitting authorities (as appropriate) issue separate NPDES permits for seafood processing vessels when they are engaged in this industrial activity.Proposed Small Vessel General Permit (sVGP) Fact Sheet

10 Figure 1. Estimated Number of Non

- Recreational Vessels Potentially Less than 79 Feet Recorded in MISLE, by Vessel Service (Type)

Note: The figure is based on operational, U.S.

- flagged commercial fishing vessels (regardless of length) and other non

recreational vessels less than 79 feet in length

. All information is compiled and presented in EPA’s 2010 Report to Congress on the study of discharges incidental to the normal operation of commercial fishing vessels and other non

- recreational vessels less than 79 feet.

Commercial fishing vessels also i nclude fish processing vessels and fishing vessels . Passenger vessels include passenger (inspected ), passenger (uninspected), passenger barge (inspected), passenger barge (uninspected), and passenger ships . Public vessel, unclassified includes military and other public service vessels. EPA notes that military vessels are specifically excluded from NPDES permitting . Utility vessels include towing vessels (i.e., tugs), school ships, research vessels/ships, mobile offshore drilling units, offshore vessels, off shore supply vessels, oil recovery vessels, and industrial vessels. Some vessel service categories did not fall into one of the listed categories. Therefore, based on the other classification fields (class, type, subtype), E PA determined an appropriate service category. Source: U. S. Coast Guard, MISLE database, 2009 4,288 49 287 67 15,012
8,876 56,407

18,660

579

- 10,000 20,000 30,000 40,000 50,000 60,000 70,000 80,000CommercialFishing VesselFreight BargeFreight ShipPassengerVesselPublic Vessel,UnclassifiedTank BargeTank ShipUtility VesselUnspecified

Vessel ServiceNumber of Vessels

Other non-recreational **69,944**

**8,016**
**768 20,953** 

**622 923**  **179 11,034**  **27,375 140,000**  - Total number of vessels, including vessels of unspecified length **118,000** - Number of vessels with specified length less than 79 feet Vessels with unspecified length

Vessels less than 79 feet in lengthProposed Small Vessel General Permit (sVGP) Fact Sheet

11 3.2.1 Commercial Fishing Vessels

Approximately 68 ,000 commercial fishing vessels represent the largest category of vessels covered by the permit. According to the vessel service categories used by the U.S. Coast Guard in MISLE, “commercial fishing vessels” are vessels involved in such activities as fish catching (e.g., longliner, shrimper, trawler), fish processing, and charter fishing.

For purposes of the MISLE database, t he U.S. Coast Guard generally describes commercial fishing vessels as including fishing vessels, fish tender vessels, and fish processing vessels as follows

• Fish processing vessel 4 means a vessel that commercially prepares fish or fish products other than by gutting, decapitating, gilling, skinning, shucking, icing, freezing, or brine chilling.

• Fish tender vessel means a vessel that commercially supplies, stores, refrigerates, or transports fish, fish products, or materials directly related to fishing or the preparation of fish to and from a fishing, fish processing, or fish tender vessel or a fish processing facility.

• Fishing vessel means a vessel that commercially engages in the catching, taking, or harvesting of fish or an activity that can reasonably be expected to result in the catching, taking, or harvesting of fish.
While there is some overlap in service use for commercial fishing vessels and other vessel categories, such as passenger vessels (e.g., charter fishing), EPA assumed that the categorization used in MISLE generally follows the U.S. Coast Guard definition of commercial fishing vessels (EPA, 2010).

3.2.2 Other Non

- recreational Vessels

Excluding the approximately 27,000 “unspecified” vessels shown in Figure 1 , “passenger vessels” have the second highest number of vessels potentially less than 79 feet, with approximately 21,000 vessels. These vessels are further divided into subtypes according to the types of activities in which they are involved (e.g., diving vessels, charter fishing vessels, ferry, harbor cruise vessels, sailing vessels). The service c ategory labeled “public vessel, unclassified” accounts for nearly 700 vessels (e.g., lighthouse tender vessels, hospital ships, law enforcement vessels, ice breakers). The “utility vessels” category covers the remaining types of vessels, including tug/tow boats, school ships, research vessels/ships, mobile offshore drilling units, offshore vessels, offshore supply vessels, oil recovery vessels, and industrial vessels. More than 11,000 vessels are classified as utility vessels in MISLE. 5 Freight barges (8,01 6 vessels), freight ships (768 vessels), tank barges (622 vessels), and tank ships (179 vessels) account for the remaining non- recreational vessels covered under this permit.

4 Please see footnote number 3 discussing the applicability of the sVGP versus other NPDES permits to fish processing vessels.

5 Some ve ssel service categories did not fall into one of the listed categories. EPA determined an appropriate service category based on information provided in other vessel classification fields (class, type, subtype).Proposed Small Vessel General Permit (sVGP) Fact Sheet

12 3.2.3 Vessel Size

Vessels can be characterized by size according to two metrics: lengt h and gross ton nage

. The two metrics are related to each other (gross tonnage is a function of the ship’s enclosed spaces as measured to the outside of the hull framing). In general, most non- recreational vessels in MISLE have a length ranging between 26 a nd 50 feet, which translates into a tonnage generally below 50 gross tons. The 79-foot length threshold for other non- recreational vessels (the criterion for applicability of P.L. 110-299 moratorium) corresponds roughly to a tonnage of 150 gross tons.

App roximately half of vessels for which MISLE contains a length entry fall within the 26 - to 50-foot-length category, with an average vessel length of 41 feet. Tank ships are the only vessel service category with a large percentage of vessels longer than 300 feet. For almost all vessel service categories, vessels less than 79 feet represent the majority of vessels within the overall population.

Most freight barges reported in MISLE are about 200 feet in length, and relatively few (10 percent) are under 79 feet in length. Hence, most freight barges are not subject to the moratorium in P.L. 110-299 and are currently eligible for coverage under the VGP. In contrast, the majority of utility vessels (e.g., towing vessels), passenger vessels, and commercial fishing v essels overall are less than 79 feet in length. The majority of commercial fishing vessels are relatively small compared to other non- recreational vessels such as barges or utility vessels, with 56 percent of commercial fishing vessels in the 26 - to 50- foo t range. The length of other non- recreational vessels varies among the subcategories, with as many as 64 percent of passenger vessels in the 26- to 50-foot range, compared to less than 3 percent of freight barges within that same range.

Overall, nearly 77 percent of all vessels in MISLE are less than 50 gross tons, while the remaining vessels generally fall within the 50 - to 300 -gross- tons range. Note that some vessel service categories appear underrepresented because the gross tons field is blank or is li sted as zero in MISLE for approximately 56,000 vessels.

3.3 E LIGIBILITY

The sVGP is applicable to discharges incidental to the normal operation of non- military,

non- recreational vessels less than 79 feet. The discharges eligible for coverage under this permi t are those covered by the exclusion in 40 CFR 122.3(a) prior to any vacatur of that exclusion (see discussion above in Section 2.2 of this fact sh eet ). Discharges incidental to normal operation include deck runoff from routine deck cleaning, ballast water (from vessels with less than 8 cubic meters of ballast water capacity), bilgewater from properly functioning oily water separators, and
gray water . Some potential discharges are not incidental to the normal operation of a vessel. For example, any discharge that results from a failure to properly maintain the vessel and equipment, even if the discharge is of a type that is otherwise authorized by th e permit, is not eligible for permit coverage. Discharges that are neither covered by this permit nor exempt from section 402 of the CWA must be authorized under a separate individual or general NPDES permit.

If owners/operators choose to do so , vessels less than 79 feet may obtain coverage under EPA’s VGP instead of obtaining coverage under the sVGP. Coverage of vessels less than 79Proposed Small Vessel General Permit (sVGP) Fact Sheet

13 feet under the VGP in lieu of the sVGP is likely an option that would not be exercised by most vessel owner s/ope rators; however, EPA believes that this flexibility might maximize efficiency and consistency for certain companies that own and operate vessels. For instance, EPA can envision certain owners /operators electing to cover smaller vessels under the VGP inste ad of the sVGP for administrative reasons (e.g., they manage a fleet that includes vessels both smaller and larger than 79 feet and they would like to operate under one permitting framework).

As discussed in S ection 4 of this f act sheet, the requirements of this permit are organized by management group rather than by each discharge stream. These proposed categories contain the effluent limits and required best management practices necessary to be followed to maintain compliance with this permit. Permittees should follow all of the effluent limits and best management practices that are applicable to their vessel.

3.4 W ATERS C OVERED /G EOGRAPHIC S COPE

Thi s permit applies to non-recreational, non- military vessels less than 79 feet in length, as identified in Part 1.1 of this permit, that discharge into waters subject to this permit. These waters are “waters of the United States ,” as defined in 40 CFR 122.2 (extending to the reach of the 3 -mile territorial seas as defined in section 502(8) of the CWA).

Th is general permit will cover vessel discharges in the waters of the United States in all states and territories, regardless of whether a state is authorized to implement other aspects of the NPDES permit program within its jurisdiction. While, pursuant to CWA section 402(c), EPA typically is required to suspend permit issuance in auth orized states, EPA may issue NPDES permits in authorized states for discharges incidental to the normal operation of a vessel, because 402(c)(1) of the Clean Water Act prohibits EPA from issuing permits in authorized states only for “those discharges subje ct to [the state’s authorized] program.” Discharges excluded under 40 CFR 122.3 are not “subject to” authorized state programs. The vessel discharges that will be covered by the proposed permit are discharges that, until expiration of the permit moratori um,

are excluded from NPDES permitting programs under 40 CFR 122.3. Therefore

, the discharges at issue are not considered a part of any currently authorized state NPDES program. See 40 CFR 123.1(i)(2) (where state programs have a greater scope of coverage than “required” under the federal program, that additional coverage is not part of the authorized program) and 40 CFR 123.1(g)(1) (authorized state programs are not required to prohibit point source discharges exempted under 40 CFR122.3).

3.5 O BTAINING C OVE RAGE U NDER T HIS P ERMIT

Part 1.3 of the permit explains that all vessels eligible for coverage under this permit will receive coverage at the time and date of the expiration of the moratorium

― December 18, 2013. For th e reasons discussed below, the permit does not require vessel owner s /operators to file a notice of intent to obtain coverage under this permit.

If an owner/operator of a vessel wishes EPA to consider alternative permit requirements for the vessel other than sVGP or VGP, he or she must apply to EPA for a substitute permit applicable to his or her vessel as required by Part 4.2 of the permit (Alternative Permits).Proposed Small Vessel General Permit (sVGP) Fact Sheet

14 As a requirement of this permit , vessel owner/operators must complete the sVGP Permit Authorization and Record of Inspection (PARI) Form contained in Appendix A of the permit. The PARI form must be signed and maintained onboard the vessel for the entire permit term. Additionally, the permittee must conduct quarterly visual self -inspections and certify that he or she has done so by sig ning the form each year.

A certification statement is included in the sVGP Permit Authorization and Record of Inspection Form that is required under this permit. This form and certification must be printed, signed , and kept on the vessel while under permit coverage. The form can be found in the sVGP.

3.5.1 No Requirement to Submit a Notice of Intent (NOI)

Under 40 CFR § 122.28 (b)(2)(v), some dischargers may, at the discretion of the Director, “be authorized to discharge under a general permit without submitting a notice of intent where the Director finds that a notice of intent requirement would be inappropriate.” In making such a determination, the Director must consider: the type of discharge; the expected nature of t he discharge; the potential for toxic and conventional pollutants in the discharges; the expected volume of the discharges; other means of identifying discharges covered by the permit; and the estimated number of discharges to be covered by the permit. Based on consideration of these regulatory factors, EPA is exercising its discretion and not requiring operators of vessels covered under this permit to submit NOIs. The reasons for this approach are explained below:

EPA estimates that there are between 118, 000-140,000 vessels that may be covered by the permit. The size of the permitted universe means that this permit will cover one of the highest numbers of dischargers among any of the general NPDES permits issued by either EPA or any

s tate. To require all t hese vessels to submit an NOI would be an extremely large administrative burden. In general, the use of NOIs for most point sources provides permitting authorities with useful information to assist in oversight and enforcement of permittees, such as the sp ecific location of the facility and its discharge. However, because vessels are mobile point sources that do not operate from a fixed location and may discharge to multiple receiving waters, the usefulness of requiring the entire universe of point sources covered by this general permit to submit NOIs is questionable.

In order to determine whether vessels eligible for coverage under the sVGP should be required to submit NOIs, EPA looked at the universe of vessels that would be covered by this permit and found that , based on the types of discharges from these vessels, the variety of discharges containing conventional and toxic pollutants, and the volume and nature of those discharges

, vessels subject to this permit should not be required to submit NOIs . The volume of the discharges incidental to the normal operation of the vessel is expected to vary proportionately to the size of the vessel. EPA expects that smaller vessels will have a smaller range of discharge types than the larger vessels , which must submit NOIs under the VGP . Some of the typical discharges eligible for coverage under the permit are nearly ubiquitous for most vessels, including deck runoff, bilge water, and leachate from anti-foulant hull coatings. However, larger commercial vessels have a greater range of discharges that will be of greater volume. Thus, the limited range of discharge types from smaller vessels and the reduced likelihood for the introduction of significant quantities of toxic and conventional pollutants make requiring an NOI for these vessels to be of little value at this time. In addition, EPA has access to other sources ofProposed Small Vessel General Permit (sVGP) Fact Sheet

15 data available for identifying discharges from vessels covered by the permit, including state registration information and the MISLE database , discussed above in Section 3.2 of this f act

s heet. From these sources, EPA can obtain information from which we can deduce the nature of ship and boat discha rges from these smaller vessels.

Based on the analysis outlined above, EPA has determined that it would be inappropriate to require vessels eligible for coverage under the sVGP to provide information about their discharges through submission of an NOI. However, these owners/operators would still be subject to all applicable requirements contained within the permit , including signing the sVGP Permit Authorization and Inspection Form and maintaining that form onboard at all times. EPA has imposed the PARI F orm requirement (under 40 CFR 122.43) because it is an efficient way for the owner/operator to certify that they have read and agreed to comply with the terms of the permit, and to demonstrate basic understanding of the permit’s terms and conditions. In addition, the form will provide EPA (or its authorized representative) with a standardized foundation for conducting inspections.

3.5.2 Terminating Coverage

Vessel permit coverage is automatically terminated if: (1) a new owner or operator has assumed responsib ility for the vessel; (2) operation of the vessel has permanently ceased in waters subject to this permit and there are no longer vessel discharges; or (3) permit coverage has been obtained under an individual or alternative general permit for all discharg es requiring NPDES permit coverage.

3.6 V ESSEL D ISCHARGES E LIGIBLE FOR C OVERAGE

Part 1.4 of the permit discusses that all discharges incidental to the normal operation of a vessel, when that vessel is operating in capacity as a means of transportation, are eligible for coverage under this permit. These discharges may include bilgewater, deck washdown and runoff, and graywater. To make compliance easier for small boat owners and operators, in this permit , requirements are organized by management group rather than specific to each discharge stream. This organizational structure should be easier to follow for the types of vessels covered under this permit.

3.7 V ESSEL D ISCHARGES NOT E LIGIBLE FOR C OVERAGE

Discharges that are not incidental to the normal operation of a vessel are not covered under this general permit. Any discharge that results from a practice that is not consistent with good marine practice is not considered incidental to the normal operation of the vessel. This includes the addition of pollutants or constituents of concern to discharge streams; disposing of prohibited materials , such as oil, overboard; and discharg ing material resulting from improper maintenance of the vessel, motor, or onboard machinery. For example, intentionally adding used moto r oil to the bilge or graywater will result in a discharge that is not incidental to the normal operation of a vessel. If two covered discharge streams are combined into one, the resulting commingled discharge stream must meet the requirements applicable to both streams.Proposed Small Vessel General Permit (sVGP) Fact Sheet

16 EPA has identified several discharge types that would not be authorized by this permit because, among other things, the discharge is not within the scope of the current 40 CFR 122.3(a) exclusion or not within the scope of EPA’s NPDES permitting authority.

3.7.1 Discharges not Subject to Former NPDES Permit Exclusion including Vessels Being Operated in a Capacity other than as a Means of Transportation

This permit covers discharges subject to the vacatur of the NPDES permit exclusion set out in 40 CFR 122.3(a) 6 and the moratorium on NPDES permitting enacted by Congress in P.L.110- 299 and extended under P.L. 111-215. Any discharge that was not subject to that exclusion as of December 18, 2008 would not be authorized under the permit. December 18, 2013 is the day the moratorium expires and these vessel discharges require coverage.

For example, the permit does not apply when the vessel is operating in a capacity other than as a means of transportation. Vessels that are not being operated in the capacity of a means of transportation include vessels being used as energy or mining facilities, storage facilities, or seafood processing facilities, or vessels that are secured to a storage facility or a seafood processing facility, or when secured to the bed of the ocean, contiguous zone, or water of the United States for the purpose of mineral or oil exploration or development. Similarly, vessels, when in drydock, also do not operate in a capacity as a means of transportation. Vessels that operate in a capacity other than as a means of transportation generally have not been excluded from NPDES permitting under 40 CFR Part 122.3(a).

“Floating” craft that are permanently moored to their piers, such as “floating” casinos, hotels, restaurants, bars, etc. are not covered by the current vessel exclusion and thus would not be covered by the vessel permit. These structures are outside the scope of the 40 CFR Part 122.3(a) exclusion because they operate "in a capacity other than as a means of transportation." The y are best characterized as casinos, hotels, restaurants, bars, etc. that happen to be located on water instead of land, much like, for example, the water

- based storage facilities mentioned in 122.3(a) as being outside the scope of the exclusion.

With res pect to vessels under construction, when the vessel is engaged in sea trials that result in operational discharges, because testing is a critical part of vessel operation, such discharges would be incidental to the normal operation of a vessel, and thus eligible for coverage under this sVGP. However, any discharges resulting from construction activities are not covered by the sVGP , as they are incidental to vessel construction, not vessel operation. With respect to vessels engaged in dredging operations, th e resulting discharges of dredged or fill material generated by their dredging activity is covered by a CWA § 404 permit or Marine Protection, Research, and Sanctuaries Act ( MPRSA ) ocean dumping permit, and such discharges are

6 40 CFR 122.3(a) states that the following d ischarges do not require NPDES permits: (a) Any discharge of sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes, or any other discharge incidental to the normal operation of a vessel. This exclusion does not apply to rubbish, trash, garbage, or other such materials discharged overboard, nor to other discharges when the vessel is operating in a capacity other than as a means of transportation, such as when used as an energy or mining facility, a storag e facility or seafood processing facility, or when secured to a storage facility or a seafood processing facility, or when secured to the bed of the ocean, contiguous zone, or waters of the United States for the purpose of mineral or oil exploration or dev elopment.Proposed Small Vessel General Permit (sVGP) Fact Sheet

17 excluded from CWA § 402 permitting. The incidental discharges (e.g., graywater, bilgewater) coming from the dredging vessels themselves are eligible for coverage under this permit (because they move as they dredge and thus, are still operating as a means of transportation), but the in dustrial

- like activity from these vessels is by statute not subject to the requirement for a § 402 permit, and they are covered by a CWA § 404 permit or MRPSA ocean dumping permit.

Furthermore, the discharges of noxious liquid substance (NLS) residues subject to 46 CFR 153.1102 are not eligible for coverage under the permit. Under 46 CFR 153.1102, discharges of NLS residues are either prohibited or, if allowable, may only take place at sea at least 12 nautical miles from the nearest shore. In light of this, the permit does not authorize such discharges within waters subject to the permit (i.e., inland waters and the waters of the 3- mile territorial sea). The relevant Coast Guard definition of the term "noxious liquid substance" (see 46 CFR 151) is set out in the definition section of the permit.

3.7.2 Sewage from Vessels

The definition of “pollutant” in the Clean Water Act 502(6)(A) specifically excludes “sewage from vessels ,” so such discharges are not subject to NPDES permitting. 7 See CWA section 301.

3.7.3 Used or Spent Oil

The discharge of used or spent oil no longer being used for its intended purpose is not eligible for coverage under the permit. This also prohibits the discharge of used or spent oil by adding it to a discharge stream that is otherwise eligib le for coverage under the permit.

Discharges of small amounts of oil incidental to the normal operation of a vessel are permissible

, provided that all appropriate effluent limits are met, including that oil is not discharged in quantities that are harmful, pursuant to 40 CFR Part 110.3. See the discussion of limitations for specific waste streams in Section 4 of this fact sheet below.

3.7.4 Garbage or Trash

Rubbish, trash, garbage, or other materials discharged overboard are not eligible for coverage under the permit because such materials are not subject to the 40 CFR 122.3(a) exclusion.

3.7.5 Tetrachloroethylene ( P erchloroethylene) D egreasers and O ther P roducts

Any degreasers or other products containing tetrachloroethylene ( TCE ) are not authorized for discharge into waters subject to this permit. TCE is a highly toxic substance that is a probable human carcinogen and is known to negatively affect human health and the environment.

7 40 CFR 122.2 defines “sewage from vessels” as follows: “Sewage from vessels means human body wastes and the wastes from toilets and other receptacles intended to receive or retain body wastes that are discharged from vessels and regulated under section 312 of CWA, except that with respect to commercial vessels on the Great Lakes this term includes graywater. For the purposes of this definition, ‘graywater’ means galley, bath and shower water.”Proposed Small Vessel General Permit (sVGP) Fact Sheet

18 For the 2008 VGP, EPA compared the costs of products containing TCE to products not containing TCE and found that alternative products are available, and their use is economically practicable and achievable. See the 2008 VGP economic analysis in the docket for today’s permit (A bt, 2008). EPA believes the same conclusion is applicable to today’s proposed permit.

3.7.6 Discharges Currently or Previously Covered by A nother NPDES Permit

Any vessel discharge that is currently or has previously been covered by either an individual NPDES permit or another general NPDES permit is not eligible for coverage under the permit, unless those discharges are covered by the 2008 VGP, EPA specifically allows coverage under Part 4.2 of the permit , or unless EPA provides written authorization for coverage to be obtained for such discharges under this permit. The sVGP is not intended to supplant or replace any current or previous NPDES permit.

3.8 C ONSTITUENTS C ONTROLLED BY THIS P ERMIT

In today’ s permit, EPA is establishing effluent limitations to control a variety of materials, which, for the purposes of this fact sheet, have been classified into seven major groups: aquatic nuisance species (ANS); nutrients; pathogens (including E. coli & fecal coliform) ; oil and grease; metals ; toxic and non-conventional pollutants with toxic effects ; and other non -conventional and conventional pollutants. EPA is establishing effluent limitations to control these materials because such materials are, depending on the particular vessel, constituents in the industrial waste, chemical waste , and/or garbage “pollutant” discharge resulting from the activities of these vessels . The discharge from vessels addressed in today’s permit falls within these broad pollutant

ca tegories.

Short summaries of each of the constituent types regulated in today’s permit follow.

3.8.1 Aquatic Nuisance Species

Aquatic Nuisance Species (ANS), also known as invasive species, are a persistent problem in U.S. coastal and inland waters. ANS may be introduced through a variety of vectors, including vessel hull maintenance and fish hold effluent. Though no reliable and comprehensive estimates of total ANS introductions nationwide exist, case studies of several major bodies of water across the country, as summarized in Table 2, provide a sense of the extent of the problem.Proposed Small Vessel General Permit (sVGP) Fact Sheet

19 Table 2 : Estimates of Invasive Species in Severa l Major Water Systems

Region Estimated Rate of

Invasion 1 Estimated Total Invasions to Date
Great Lakes Once every 28 weeks 2 182 2 Mississippi River System Unknown 100 3 San Francisco Bay Once every 14 weeks 4 234 4

Lower Columbia River Basin Once every 22 weeks 5 81 5

Gulf of Mexico Unknown 704 6

1 Ruiz and Reid (2007) suggest that these figures may not reliably represent the true rate of introduction, as they are based on discovery data, which may not always track with the underlying rate of introduction.
2 Ricciardi 2006.
3 USCG 2009.
4 Cohen and Carlton 1998.

5 Sytsma et al. 2004.
6 Battelle 2000.

ANS pose several dangers to aquatic ecosystems, including outcompeting native species, threatening endangered species, damaging habitat, changing food webs, and altering the chemical and physical aquatic environment. Furthermore, ANS have been documented to damage recreational and commercial fisheries, infrastructure, and water

- based recreation and tourism.

One of the most well-known examples of ANS is the Zebra Mussel. Zebra Mussels are native to Eurasia, near the Black and Caspian Seas, and were first discovered in U.S. waters in 1988. Populations of Zebra Mussels were established in the Great Lakes and are now found throughout most of the e astern United States and in some western states. Zebra Mussels are filter feeders and can remove algae from the water column that other native species depend on as a food source; therefore, Zebra Mussels outcompete native (and sometimes endangered) mollusks and other filter feeders. Zebra Mussels also damage p ublic infrastructure and have been estimated to cause tens to hundreds of millions of dollars in losses per year to the Great Lakes alone.

3.8.2 Nutrients

Nutrients, including nitrogen, phosphorus, and numerous micronutrients, are constituents of vessel dischar ges

. Though traditionally associated with discharges from sewage treatment facilities and runoff from agricultural and urban stormwater sources, nutrients resulting from vessels are also thought to be discharged from deck runoff, vessel graywater, and vess el bilgewater, among other sources. Increased nutrient discharges from human sources are a major source of water quality degradation throughout the United States (USGS, 1999).

Nutrients are associated with a variety of negative environmental impacts, the m ost notable of which is eutrophication, which can lead to reduced levels of dissolved oxygen due to increased oxygen demand (sometimes to the extremes of hypoxia), reduced levels of light penetration and increased turbidity, and changes in the composition of aquatic flora and fauna, and helps to fuel harmful algal blooms (HABs), which can have devastating impacts on bothProposed Small Vessel General Permit (sVGP) Fact Sheet

20 aquatic life and human health (National Research Council , 2000; WHOI , 2007). The National Research Council (2000) found that:

• Nutrient over- enrichment of coastal ecosystems generally triggers ecological changes that decrease the biological diversity of bays and estuaries.

• While moderate nitrogen enrichment of some coastal waters may increase fish production, over- enrichment generally degrade s the marine food web that supports commercially valuable fish.

• The marked increase in nutrient pollution of coastal waters has been accompanied by an increase in harmful algal blooms, and in at least some cases, pollution has triggered these blooms.

• High nutrient levels and the changes they cause in water quality and the makeup of the algal community are detrimental to the health of coral reefs and the diversity of animal life supported by seagrass and kelp communities.

• Nitrogen is the chief culprit in eu trophication and other impacts of nutrient overenrichment in temperate coastal waters, while phosphorus is most problematic in eutrophication of freshwater lakes.

• Human conversion of atmospheric nitrogen into biologically useable forms, principally synthe tic inorganic fertilizers, now matches the natural rate of biological nitrogen fixation from all the land surfaces of the earth.
EPA’s study of discharges incidental to normal operation of commercial fishing vessels and other non- recreational vessels less than 79 feet found that nutrient levels were elevated in some samples for some discharges from these vessels (EPA, 2010). The sVGP is designed to reduce nutrient loadings into waters subject to this permit. For instance, by requiring the use of phosphate-free soaps, keeping food waste out of discharges, and potentially reducing the discharge of graywater, the permit will result in the reduction of external nutrient loading to aquatic ecosystems. Phosphate- free soaps are commonly available at retailers n ationwide. The discharge of food waste into waters covered by this permit is currently prohibited by the Act to Prevent Pollution from Ships (APPS), 33 U.S.C.1901 et seq. This permit requires that food waste be prevented from entering any waste stream. M inimizing graywater can easily be accomplished by reducing shower or sink use when traversing select waters. Though easily accomplished, these requirements could result in significant environmental improvement for waters that have too much phosphorus or i n waters where there are large numbers of boaters.

3.8.3 Pathogens

Pathogens are another important constituent of discharges from vessels, particularly in graywater and potentially from ballast water discharges. Though fecal coliform is considered a conventional pollutant, it is discussed here because it shares characteri stics with many other pathogens potentially discharged from vessels.

EPA’s study of discharges incidental to normal operation of commercial fishing vessels and other non-recreational vessels less than 79 feet found elevated concentrations of pathogenProposed Small Vessel General Permit (sVGP) Fact Sheet

21 indic ators ( E. coli , enterococci, and fecal coliforms ) in some samples of bilgewater and deck washdown (fishing vessels only), fish hold effluent, and graywater discharges. These three types of bacteria are all found in animal digestive tracts. Epidemiological studies suggest a link between high concentrations of E. coli and enterococci in ambient waters and incidents of gastrointestinal illnesses associated with swimming. Accordingly, they are used as indicators of the possible presence of intestinal pathogens. The highest concentrations by far of all three pathogen indicators were found in graywater for all three bacteria. The estimated discharge volume of graywater from study vessels (i.e., vessels that are subject to the permit) , however, is relatively small. Fish hold effluent contained the second highest concentrations of these pathogen indicators and may pose a potential level of risk considering the relatively high volume of this discharge and possible discharge by multiple vessels in the same location. However, EPA noted that most of the pathogen concentrations in fish hold effluent were well below or similar to ambient water concentrations, and the study was inconclusive as to whether fish hold effluent results in additional contribution of pathogen indicators.

Elevated levels of these pathogens have increasingly resulted in beach closures in recent years, primarily from on -shore sources such as urban stormwater runoff and sewage overflows, which in turn has reduced the recreational value of impacted beaches. Additional pathogens have been associated with ballast water discharges, including E. coli

, enterococci
, Vibrio cholerae

, Clostridium perfingens

, Salmonella spp. Cryptosporidium spp., and Giardia spp., as well as a variety of viruses (Knight et al. , 1999; Reynolds et al., 1999; Zo et al., 1999).

Though it is difficult to determine the contribution of vessel discharges to infections by the se organisms

, it is likely that they are not a primary source

. Epidemiologists have attempted to quantify the proportion of total infections that are waterborne. For example, waterborne infection may account for as many as 60 % of Giardia infections and 75 % of pathogenic E. coli infections (National Research Council 1993). Graywater discharges may be a significant source of pathogenic microorganisms within some regulated waters, and reducing graywater discharges may provide some human health benefits.

3.8.4 O il and Grease

Oil and grease are an other known component of vessel discharges with potentially harmful impacts to humans and to aquatic life. Vessels discharge oil in every day operation, including lubricating oils, hydraulic oils, and vegetable or organic oils. These discharges may contain enough oil to do ecological damage in co nfined areas or where vessels are concentrated, or where there are accidental spills or discharges of “oil in quantities that may be harmful 8 ” Oils are highly toxic and carcinogenic and can also taint organisms that are consumed by humans, which is a potential source of adverse health impacts. Such a discharge could decrease natural oxygen transfer, resulting in depressed dissolved oxygen concentrations. Also, oils might contain heavy metals and semivolatile organic compounds, which can bioaccumulate in fish, birds, marine mammals, and ultimately humans. Bilgewater, fish hold effluent (fish oils), and graywater (galley wastewater) are the vessel discharges most likely to contain oil and grease.

8 “Oil in quantities that may be harmful” is a term of art which means any discharge of oil having the effects identified in 40 CFR 110.3.Proposed Small Vessel General Permit (sVGP) Fact Sheet

22 The permit requirements apply to discharges of oil, fuel, othe r petrochemicals and oily mixtures and attempt to further minimize oil discharges in U.S. waters. The effluent limits under fuel management, engine and oil control, and the general requirements should all minimize the discharge of oil and oily materials b y specifying techniques and behaviors that, when followed, will reduce the discharge of these materials. For example, knowing the capacity of fuel tanks will reduce the chance of vessel owners or operators accidentally overfilling their vessel fuel tank, contaminating discharges from the vessel and potentially harming the aquatic environment. When fueling in the water, using oil absorbent materials or other appropriate devices to catch drops from vent overflows and fuel tanks will perform the same function. The discharge of used or spent oil no longer being used for its intended purpose is not eligible for coverage under this permit. The permit also prohibits the discharge of used or spent oil by adding it to a discharge stream that is otherwise eligible for coverage under the permit.

3.8.5 Metals

Metals are a diverse group of pollutants, many of which are toxic to aquatic life and humans. While some metals, including copper, nickel, and zinc, are known to be essential to organism function, many others, including thallium and arsenic, are nonessential and known to have only adverse impacts. Even essential metals can do serious damage to organism function in sufficiently elevated concentrations. Adverse impacts can include impaired organ function, impaired reproduction, birth defects, and at extreme concentrations, acute mortality. For example, Katranitsasa et al. (2003) noted that copper released from copper anti-fouling paints are toxic to non-targeted aquatic organisms. Additionally, through a process known as bioaccumulation, metals may not be fully eliminated from blood and tissues by natural processes and may accumulate in predator organisms further up the food chain, including commercially harvested fish species ( EPA , 2007e).

The toxic potential of a metal d epends on its bioavailability in a given aquatic environment. A metal’s bioavailability is determined by the characteristics of the surrounding environment (e.g., temperature, pH, salinity, TOC) and the species of the affected organism. The environmental conditions determine a metal’s tendency to either adsorb suspended organic matter and clay minerals or to precipitate out of solution and settle to the sediments. Benthic organisms can bioaccumulate metals by consuming metal -enriched sediments and suspended particles or by uptaking ambient water containing the dissolved form of the metal.

EPA’s study of discharges incidental to normal operation of commercial fishing vessels and other non-recreational vessels less than 79 feet found dissolved copper detected in vessel discharges at concentrations that consistently posed the greatest potential risk for local impacts and for contributing to exceedances of water quality standards in larger water bodies (EPA, 2010). Dissolved copper was detected at the highest concentrations in the deck washdown, graywater, fish hold, and bilgewater discharges from most vessel classes, particularly utility vessels (e.g., towboats, supply boats). Copper is released (leached) from anti-fouling hull coatings used on certain vessels to prevent buildup of organisms such as barnacles and algae. Copper can also be released via underwater hull cleaning, hull coating removal operations, and paint application. Although copper anti -fouling discharges were not measured, previous studies have sh own it can be a major contributor to copper concentrations in harbors, especially marinas with large vessel populations (California Regional Water Quality Control Board, 2005;Proposed Small Vessel General Permit (sVGP) Fact Sheet

23 Singhasemanon et al., 2009). Other metals of concern found in discharges from ve ssels subject to the moratorium include total arsenic, particularly in bilgewater, and total aluminum in virtually all sampled discharges.

3.8.6 Toxic and Non-Conventional Pollutants with Toxic Effects

The term “toxic and non-conventional pollutants with toxic effects,” as it applies to constituents of vessel discharges, encompasses a variety of chemical compounds known to have a broad array of adverse impacts on aquatic species and human health. For example, EPA’s study of discharges incidental to normal operation of commercial fishing vessels and other nonrecreational vessels less than 79 feet found t he semivolatile organic compound bis(2- ethylhexyl) phthalate in elevated concentrations in some samples of bilgewater, stern tube packing gland, deck washdown, f iremain, and inboard engine and engine generator discharges (EPA, 2010). The highest concentration for bis(2- ethylhexyl) phthalate was found in a bilgewater discharge sample. This compound is a plasticizer that is added to an ever- increasing variety of pla stics to provide flexibility and is the most common phthalate in the environment. 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).

Benzene was the only volatile organic compound found with any frequency at concentrations above water quality standards. Benzene is a known carcinogen that is a common constituent of fuel. Benzene can also be formed as a product of incomplete combustion of fuel. Elevated concentrations of benzene were detected in a bilgewater sample and in samples from both outboard engine and generator engine discharges.

Long - or short -chain nonylphenol and octylphenol ethoxylates (two distinct subsets of alkylphenol ethoxylates) wer e detected in some samples of bilgewater, stern tube/packing gland, deck washdown, and graywater discharges, and total nonylphenol was detected in one sample from bilgewater. Nonylphenols (a term used generally here to identify a specific group of alkylphenols of potential human and environmental concern which also includes the octylphenols) are manmade organic compounds that are used in a wide variety of applications, such as the manufacturing of detergents, because of their surfactant properties. Nonylphenols are synthetic estrogens, which means they can mimic the natural vertebrate hormone estrogen and evoke an estrogen -like response. An example of such a response is the disruption of male sexual development, causing female characteristics to emerge

.

3.8.7 Other Non -Conventional and Conventional Pollutants (Except Fecal Coliform)

The category “other non-conventional and conventional pollutants, ” as applied to vessel discharges

, also consists of multiple pollutants with disparate impacts. Discharges of graywa ter, bilgewater, fish hold effluent, and other vessel waste streams or effluent can include pollutants that affect pH, add heat, and/or increase turbidity or discharge suspended sediment.

Some vessel discharges are more acidic or basic than the receiving waters, which can have a localized effect on pH (ADEC , 2007). Though no research has been done linking vessel pollution specifically to pH impacts on aquatic ecosystems, extensive literature on the impacts ofProposed Small Vessel General Permit (sVGP) Fact Sheet

24 pH changes in the contexts of aquaculture and acid rain does exist. For nearly all fish populations, pH more acidic than 5 or more basic than 10 will cause rapid mortality. In addition, many individual species are sensitive to more moderate changes in pH (Wurts and Durborrow, 1992).

Some vessel discharges may also affect temperature locally (Battelle , 2007). Thermal impacts of vessel discharges are generally much smaller than those from better known sources

, such as dams, power plant cooling water, and runoff. However, even small temperature changes

can impact some sensitive organisms’ growth, reproduction, and even survival, which implies that some vessel discharges may have localized adverse impacts on aquatic organisms (Abbaspour et al., 2005; Cairns , 1972; Govorushko, 2007).

Some vessel discharges, su ch as those from bilgewater, can contain suspended sediments and have elevated turbidity. Loadings of sediment from vessel discharges are likely much smaller than from other sources such as construction, urban stormwater, and agriculture. The most signific ant sources of sediment from vessel discharges likely come from areas in the vessel where water is held, allowing sediment to settle out of suspension and accumulate over time. Sediment can then be resuspended before discharg e.

Designated uses

, such as na vigation, drinking water, recreation, and agriculture, are impaired by excess suspended sediments (E PA , 2003). When sediments diminish water quality to support aquatic life, other human uses of the same water bodies, such as recreational or commercial fishing

, may also be diminished

. Furthermore, there is evidence that aquatic life uses are one of the most sensitive endpoints to alterations in sediment loading. Direct effects on invertebrates and fish are complex, ranging from behavioral to physiological to toxicological impacts . Suspended sediments have been documented to have a negative effect on the survival of fish, freshwater mussels, and other benthic organisms. In a frequently cited review paper prepared by Newcombe and Jensen (1996), sublethal effect s (e.g.

, increased respiration rate) were observed in eggs and larvae of salmonids and nonsalmonids, as well as in adult estuarine and freshwater nonsalmonids, when exposed to TSS concentrations as low as 55 mg/L for one hour. Mussels compensate for increased levels of suspended sediment by increasing filtration rates, increasing the proportion of filtered material that is rejected, and increasing the selection efficiency for organ ic matter . Excess sediment smothers benthic organisms, and the surface layer of the benthos can be heavily impacted and altered. Increased turbidity associated with suspended sediments can reduce primary productivity of algae as well as growth and reproduction of submerged vegetation (Jha, 2003). In addition, once in the system, resuspension and deposition can “recycle” sediments so that they exert water column and benthic effects repeatedly over time and in multiple locations.

4. THE S VGP EFFLUENT LIMITS AND RELATED REQUIREMENTS

The CWA requires that all point source discharges must meet technology- based effluent limitations representing the applicable levels of technology -based control. Water quality- based effluent limitations (WQBELs) are required

, as necessary , where the technology

- based limitations are not sufficient to meet applicable water quality standards (WQS). See P.U.D. No. 1 of Jefferson County et al v. Washington Dept of Ecology , 511 U.S. 700, 704 (1994). Water quality- based requirements are discussed in greater depth in Section 6.5 of this fact sheet . BothProposed Small Vessel General Permit (sVGP) Fact Sheet

25 technology-based and water quality- based effluent limitations are implemented through NPDES permi ts containing such limitations issued to point sources. CWA sections 301(a) and (b). See Section 6.7 of this fact sheet for discussion about water quality- based effluent limits.

Today’s permit contains both technology- based effluent limits and water qual ity

- based effluent limits. The rationale behind specific requirements contained with this permit are explained in greater detail below. Please see Section 4.12 o f this fact sheet for additional explanation of how technology-b ased e ffluent l imits are derived and the factors EPA used in deriving them.

4.1 G ENERAL R EQUIREMENTS

Part 2.1 of the permit sets forth requirements for all discharges to which they are applicable

. For example, the sVGP requires that all cleaners must be non

- toxic , biodegradable and phosphate free. These products are widely available and comparable in cost to products that contain phosphorus, are not biodegradable, and exhibit toxicity (EPA, 2011a ). Product substitution of a more environmentally friendly cleaner will result in improving the quality of the vessel discharges with little to no cost to the vessel owner/operator. A second example of a general requirement requires that vessel owner/ope rators minimize the discharge of any antifreeze into waters subject to the permit and prohibits the discharge of antifreeze with toxic or known carcinogenic additives. Some antifreezes and their additives, including ethylene glycol and methanol, are known to negatively impact human health and potentially impact the natural environment. This requirement is designed to eliminate the discharge of known toxic compounds, while reducing the discharge of other antifreeze compounds, which, in addition to the anti freeze itself (e.g., propylene glycol), might contain other pollutants in elevated concentrations such as metals or BOD 5 (see EPA, 2010 for further discussion).

4.2 F UEL M ANAGEMENT

Fueling operations are conducted on a routine basis on vessels. Fuel tanks are vented to allow gasses to escape during tank filling, to allow air to be drawn into the tank as fuel is being consumed, and to allow for the natural expansion or contraction of fuel with changes in temperature. Some vessels have fuel/air separators inst alled on fuel tank vent lines that prevent fuel from escaping through the vents. Fuel can be discharged directly to surface water or to the bilge from accidental spill s during tank filling due to vessel movement, overfilling and backsplash . E xcess fuel can also drain from transfer hoses following vessel fueling. Fuel tanks can discharge fuel through tank vents due to fuel expansion, especially if they are full and are not equipped with fuel/air separators on vent lines. Two

- stroke engines require a small am ount of oil be added to the fuel prior to combustion to provide lubrication. Spills of gasoline and diesel fuel during fueling can cause an oil slick or sheen to form on surface waters, contaminating the ambient water with volatile and semivolatile organic compounds.

The required best management practices for fuel management in Part 2.2 of the permit are designed to minimize the amount of fuel released to receiving waters by requiring preventive maintenance that minimize s the occurrence of leaks and spills and by preventing any spills and leaks from entering receiving waters

. Specifically, f illing portable fuel tanks on shore, away from water, will eliminate discharges from these activities. Regular inspection and promptProposed Small Vessel General Permit (sVGP) Fact Sheet

26 m aintenance and repair of fuel and hydraulic systems will reduce or eliminate incidences of spills and leaks. Capturing any spills and leaks that do occur during fueling is a simple and inexpensive way to prevent their release to receiving waters.

The sVGP also includes a requirement for any new motorized vessels (constructed on or after December 19, 2013) to have a functioning fuel- air separator or a fuel tank vent to prevent a fuel spill. EPA has included this requirement for new vessels because the Agency found it economically practicable and achievable for these vessels. Please see the sVGP economic analysis for discussion of costs for installation of fuel tank vents or fuel- ai r sepa rators.

4.3 E NGINE AND O IL C ONTROL

Routine maintenance of engines and generators includes periodic inspection of the engine for leaks or other damage; repair and replacement of engine parts; changing the oil in the engine, generators, and gear boxes; lubricating bearings on the steering components; and flushing the cooling systems. It also includes inspection and maintenance of bilge pumps, oily water separators, and any areas of segregated bilge on board a vessel.

As engines and generators are generally contained within a below

- deck engine compartment, leaked and s pilled oil from this equipment and machinery typically lands in the vessel bilge. Bilgewater is the water and any comingled wastes , such as oils, that accumulate in the bilge. Sources of bilgewater are typically leaks and condensates from interior machiner y, engine cooling and hydraulic systems, and the stern tube system. Depending on vessel configuration, bilgewater may also include drainage from the decks above, such as deck runoff and deck washdown and equipment cleaning wastewater. Some vessels have wat ertight bulkheads (compartments) that separate the engine area from other areas of the bilge. In this way, motor oil, along with hydraulic line leaks, fuel spills, and engine cooling system leaks, are contained within the engine compartment, which prevents bilgewater in other compartments from becoming contaminated with engine wastes

. Some vessels also segregate ambient water that drips from the stern tube packing gland or stuffing box from the engine area of the bilge. The constituents in the bilgewater di scharge include oil and grease, and volatile and semivolatile organic compounds, as well as metals from engine wear.

The water that collects in the bilge must be pumped out periodically. Some vessels have fixed bilge pumps that automatically discharge bilgewater as it accumulates; these vessels might discharge bilgewater at any time and in any location. Some vessels may transfer bilgewater to an oily waste holding tank, where it is stored for shore disposal or treated in an oily water separator to remove oil before being discharged overboard. Some vessels also have an oil content meter installed downstream of the oily water separator to monitor bilgewater oil content prior to discharge. Larger v essels with oil content meters have the capability to return bi lgewater not meeting a preset oil concentration to the oily water separator for reprocessing until the set point is met. Oil collected from the oily water separations is held in a waste oil tank until transferred to shore facilities for disposal.

Some ext ernal surfaces on vessels are lubricated and submerged in, partially submerged in, or directly exposed to water. The lubricants on these machinery and equipment come into contact with water by design and can contaminate ambient water. Examples include ster n tube seals andProposed Small Vessel General Permit (sVGP) Fact Sheet

27 bearings ; a wire cable that has been lubricated with grease (if that cable is expected to come into contact with water) ; and two- stroke engines , which require a small amount of oil be added to the fuel prior to combustion to provide lubric ation

. Lubricants used include oil, grease, heavy petroleum compounds, and solvents.

The required best management practices for engine and oil content in Part 2.3 of the permit are designed to minimize the amount spills, leaks, or overflows of oil and other engine fluids released to receiving waters using practices that are simple and inexpensive to implement

. Specifically, preventive maintenance of engines, machinery, and their fueling systems will reduce or eliminate the incidences of spills and leaks into the bilge or directly into receiving
waters . Capturing and containing for shore disposal any leaks or spills that do occur using oil absorbent materials, oily water separators, or other means will prevent their release into bilgewater discharges. Suspending discharge if a visible sheen is observed until the problem is corrected, and the prohibition of dispersants, detergents, emulsifiers, chemicals, or other substances to remove the appearance of a visible sheen, will reduce or eliminate the discharge of uncontrolled or partially controlled discharges. Finally, s ubstituting environmentally acceptable lubricants will lessen the environmental impact of any lubricants that are released. These products are widely available and affordable (see EPA 2011a fo r more discussion).

4.4 S OLID AND L IQUID W ASTE M AN A GEMENT

Solid and liquid wastes such as trash or garbage; fishing waste ; loose items on the deck; and toxic materials such as used antifreeze, paint, and out-of- date flares can enter receiving waters by intentional disposal or by accidental disposal due to vessel movement, wind, or rain. Such wastes may contain oil and grease, petroleum hydrocarbons, surfactants, detergents

, glycols, solvents, and general debris. The required best management practices for solid and liquid waste management in Part 2.4 of the permit, including the requirement that waste be physically secured or otherwise prevented from e ntering receiving waters, will eliminate the release of these materials by preventing their entry into any permitted wastestream

. These requirements are common

- sense approaches to preventing these wastes from entering any waste stream and are consistent wi th the existing prohibitions for many of these wastes being discharged into waters of the United States and

, as demonstrated by the economic analysis conducted for this permit, are practicable and economically achievable

.

4.5 D ECK W ASHDOWN AND R UNOFF AND A BOVE THE W ATER L INE H ULL C LEANING

Deck and above the water line hull cleaning are conducted on a routine basis on vessels. Typically, decks and superstructures are cleaned by wetting the surface with ambient or potable water, cleaning and scrubbing the surfac e with a brush or sponge and a cleaning solution, and rinsing the surface with water. Potable water is generally supplied by a shore-side garden hose, or ambient water can be supplied by the vessel firemain system, if so equipped. A restrictor or a high -pressure hose system can also be used to pressure- wash the decks; these systems generally use less water and require less physical scrubbing but are more abrasive to the surfaces being cleaned. Spot cleaning may be performed by applying a cleaning solution using a spray bottle and wiping away dirt and solution using a sponge and water. Cleaning wastewater typically discharges through scuppers (located along the perimeter of the deck) directly to the water body.Proposed Small Vessel General Permit (sVGP) Fact Sheet

28 Vessels that are actively used and well maintained may be cleaned daily. In contrast, vessels that are used infrequently or are not well maintained may only be cleaned on rare instances.

Deck runoff may consist of precipitation or surface water that sprays or washes over the decks and flows to the scuppers where it is discharged overboard. Accordingly, deck runoff discharges can contain anything dropped, spilled, dripped, or scattered onto the deck surface as a result of vessel maintenance or commercial use.

Deck washdown and deck runoff have the potential to contain a variety of pollutants, including oil and grease, petroleum hydrocarbons, surfactants, soaps and detergents, glycols, solvents, and metals. Some or all of these pollutants could be introduced to the deck from shipboard activities, storage of material on the deck, maintenance activities, and the decking material itself. The amount of contaminants and debris in deck washdown and runoff is related to the quality of housekeeping practices.

The required best management practices for deck washdown, deck runoff and above the water line hull cleaning in Part 2.5 of the permit are designed to minimize the amounts of soaps and cleaners, garbage, debris, spills, residue, and paint chips released to receiving waters. Requiring the collection and shore disposal of paint chips and residues prior to cleaning, maintenance, and paint application and reapplication will reduce or eliminate the discharge of these materials during deck washdown, deck runoff, and above the water line hull cleaning. Substituting non-toxic, biodegradable, and phosphate- free soaps and cleaners is an available and economically achievable way to lessen the environmental impact of deck washdown and above the water line hull cleaning wastewater discharges.

4.6 V ESSEL H ULL M AINTENANCE

Vessel hull maintenance is when the underwater portions of the vessel hull are repaired, inspected, cleaned, or otherwise maintained. Vessel hull maintenance is usually performed in response to marine biofouling of the underwater hull and hull appendages of boats and ships, including propellers, rudders, through-hull fittings, and corrosion control equipment. While some hull maintenance activities, including inspection, cleaning , and application of anti -fouling coatings (AFCs)

, take place out of the water ( in dry dock, slipway, or haul- out facilities) , others are carried out while the vessel is afloat. These include underwater hull cleaning and propeller polishing to control biofouling. Vessel hull maintenance also includes marine growth protection systems (MGPSs) , which control biofouling in sea chests and seawater circulation systems. Vessel hulls are often coated with anti -fouling compounds to prohibit the attachment and growth of aquatic life. Coatings are formulated for different conditions and purposes and many contain biocides. Those that contain biocides are toxic to aquatic life. A variety of different ingredients may be used in these compounds; the most commonly used is copper. While vessel hull maintenance of anti -fouling co a ting is necessary to prevent the spread or dispersal of potentially invasive species, it unavoidably results in a release of toxic biocides from anti -fouling coatings.

The required best management practices for vessel hull maintenance in Part 2.6 of the permit are designed to reduce or eliminate discharges from anti -fouling coatings and to prevent the spread or dispersal or potentially invasive species. In addition, there is a zero

- discharge standard for T ributyltin (T BT ) in order to eliminate th at specific discharge

. EPA expects thatProposed Small Vessel General Permit (sVGP) Fact Sheet

29 few, if any, vessels have exposed TBT coatings on their hulls

. EPA believes that a zero discharge standard for all organotin compounds, including TBT, is technologically available based on the availability of other antifoulant coating options (e.g., copper and silicon) and feasible and economically achievable because few, if any, vessels still utilize TBT as an antifoulant.

Prohibition of performing vessel hull maintenance within the first 90 days of application of antifoulant paint that r eleases biocides will minimize the discharge of biocides during the period of time when biocide releases are most concentrated. EPA also encourages vessel owners/operators to avoid using copper

- based anti -fouling systems or to clean and maintain anti

fouling systems in a way that prevents releases to receiving waters ( for example

, by performing maintenance activities away from water ). Other practices, such as frequent gentle cleaning of anti -fouling coating

, will minimize the release of biocides during vess el hull maintenance and will reduce the need for stronger cleaners or more rigorous cleaning. Requiring routine inspection and cleaning of vessel hulls will also minimize the spread or dispersal of potentially invasive species . As demonstrated in the Econ omic Analysis for this permit, these practices are practicable and economically achievable.

4.7 G RAYWATER

Graywater is water from showers, baths, sinks, and laundry facilities. The primary sources of graywater on vessels are sinks. Larger vessels may have additional graywater sources

, such as clothes washers, dishwashing machines, water fountains, showers, and tubs. The largest vessels may have wastewater from additional sources, such as floor drains, ice machines, food garbage grinders, interior deck drains, hot tubs, and pools. Graywater discharges may contain soaps and detergents; oil and grease from foods and personal products; food waste solids; nutrients from food wastes and detergents; hair; bleach and other cleaners and disinfectants; pathogens; and a variety of additional personal care products such as hand moisturizer, deodorant, perfume, and cosmetics. Soaps and detergents can cause foam. Detergents can also form precipitates with minerals, creating scale and scum. Phosphates in detergents add to the nutrient loading of the graywater discharge s.

T he required best management practices for graywater in Part 2.7 of the permit are designed to reduce the amount of graywater generated, reduce the amount of graywater discharged into sensitive water bodies, and lessen the environmental impacts of any graywater that is discharged. Requiring the storage of graywater by vessels that have storage capacity will eliminate the discharge of graywater in waters subject to this permit, or will allow for graywater disch arge only when the vessel is underway to reduce the environmental impact of graywater discharges . Minimizing graywater discharges into areas of heavy vessel traffic, sensitive water bodies, and confined waters will reduce the amount of graywater discharged into these particular areas of concern. Using biodegradable, phosphate-free, and nontoxic cleaning products and prohibiting the addition of cooking oils to graywater systems will further lessen the environmental impacts of graywater discharges

. As discuss ed in the Economic Analysis conducted for this permit, use of these products does not result in an increase in costs for vessel owners/operators. Furthermore, these products are readily available in numerous retail outlets, including outlets specifically tailored to meet the needs of small vessel owner s /operators.Proposed Small Vessel General Permit (sVGP) Fact Sheet

30 4.8 F ISH H OLD E FFLUENT

Commercial fishing vessels use different methods to keep seafood fresh after it is caught. Most seafood is either dead when brought onboard or is killed shortly thereafter, before being stored in a refrigerated seawater holding tank, with the exception of certain shellfish (e.g., crab, lobster), which must be kept alive. The two most common methods of cooling seawater are by mechanical refrigeration or by adding ice. Mechanical refrigeration is common on tenders, purse seiners, and trawlers, while chipped and slurry ice tanks are more common on trollers, longliners, gillnetters, and some trawlers.

For vessels with refrigerated seawater tanks, fish are typically extracted using a vacuum system that removes both the fish and refrigerated seawater simultaneously. Any excess refrigerated seawater that is not required to assist in fish extraction is pumped overboard pierside. Vessels that use chipped or slurry ice generally remove the seafood and then discharge the spent ice overboard pier side. Occasionally, ves sels that store their catch in ice slurry also use vacuum filtration systems (e.g., some shrimping boats in the Gulf of Mexico). These discharges often contain pollutants generated by the catch, such as biological wastes.

Tanks used to keep lobster and crab catch alive pump surrounding water into the tank constantly to maintain the highest water quality possible. The flow rate through these systems results in a nearly continuous discharge of fish hold effluent. Because the majority of the seafood product r emains alive, there is little biological decay or degradation in the tank. Furthermore, because these tanks have reasonably rapid flushing times and a continuous discharge, there is little accumulation of pollutants.

Fish holds are also often cleaned or d isinfected by vessel crews between catches. To rinse the tank, vessel crews use either municipal water from the pier or dock or they pump water from the surrounding ambient water. Cleaning may simply involve rinsing the tanks with this water, or

crews some times add detergents or disinfectants. Crews also often use scrub brushes to clean the walls and floor of the fish hold to maximize the removal of organic material. Fish hold cleaning effluent is a combination of residual fish hold water and ambient or mun icipal water and often contains soaps or detergents.

Fish hold effluent may contain waste fish parts or other materials generated by fish cleaning, unused bait, solids, oils, nutrients, bacteria, and viruses. Fish hold effluent can create scum and foam, produce a visible slick or sheen on surface waters, generate odors, and exert oxygen demand in receiving waters. This discharge also has the potential to introduce ANS into receiving waters.

T he required best management practices for fish hold effluent in Part 2.8 of the sVGP are common practices that are easily implemented by vessel owner/operators and are designed to reduce the amount of fish hold effluent discharged into sensitive water bodies and to lessen the environmental impact fish hold effluent that is discharged. The requirement to physically separate excess fish waste from fish hold effluent prior to discharge will reduce the amount and concentration of the discharge. Requiring the discharge of fish hold effluent to shore facilities, where avai lable , will reduce fish hold effluent discharges at piers. Prohibiting the discard of unused bait, unless the bait was caught in that water body or watershed, will prevent the spreadProposed Small Vessel General Permit (sVGP) Fact Sheet

31 or dispersal of potentially invasive species if the bait are invasive species or are contaminated with invasive pathogens. Minimizing fish hold effluent discharges when in port will reduce the amount of fish hold effluent discharged into these nearshore waters

.

4.9 B ALLAST W ATER

EPA believes that it is not practicable and economically achievable for vessels with less than 8 cubic meters of ballast water capacity that discharge ballast water to install a ballast water treatment system , and therefore, those vessels are more appropriately controlled by the technology- based requirement s in today’s permit.

Vessels with less than 8 cubic meters of ballast water capacity must implement the management practices outlined in Part 2.9 of the sVGP. EPA believes that no existing ballast water treatment systems have been developed for vessels wi th less than 8 cubic meters (2113
ga llons) of ballast water. For vessels with these small volumes of ballast water, EPA has included these best management practices for their ballast water discharges as technology

- based effluent limits because EPA believe s that they are feasible and economically practicable and achievable. These requirements are common sense measures that reduce the risk of vessels transporting potentially harmful pollution and aquatic nuisance species from one water body to another.

These best management practices include avoiding or minimizing ballast water uptake in areas with a high potential to contain harmful organisms and only discharging the minimal amounts of ballast water necessary in coastal and internal waters . When achiev able, vessel operators should not take up any ballast water in any waters with a known outbreak of harmful organisms and/or invasive species such as Pfisteria blooms (or other harmful algal blooms) and viral hemorrhagic septicemia (VHS ) . In these areas, it may be achievable for vessel owners/operators to minimize or avoid the uptake of water. When the uptake of ballast water is required in these waters, the vessel owner/operator must take on ballast in those waters that have the lowest known risk factors for these harmful organisms.

For additional explanation regarding the ballast water provisions proposed today, including best management practices , please see Part 4.4.3 of EPA’s Proposed Vessel General Permit Fact Sheet (EPA, 2011b), available in the docke t for this draft permit.

Today’s proposed p ermit would not authorize the discharge of ballast water from vessels less than 79 feet with a ballast water capacity of 8 or more cubic meters. EPA believes that it is practicable and economically achievable for these vessels that discharge ballast water to install a ballast water treatment system , and ther efore, those vessels are more appropriately controlled by the technology- based requirements in the VGP. EPA has allowed vessels that have 8 or more cubic meters of ballast water capacity, but that do not discharge ballast water, to maintain coverage under today’s permit. EPA incorporated this requirement because vessels may use permanent ballast water or may use other methods to avoid any discharge into waters subject to this permit.

EPA is specifically requesting comment on this approach and whether larger or smaller volumes of ballast water discharge should be regulated under the sVGP. EPA is also requestingProposed Small Vessel General Permit (sVGP) Fact Sheet

32 comment on whether additional best management practices should be required for these small volumes of ballast water from sVGP vessels. Please submit any supporting information, data sources, and rationale with your comments.

4.10 S EAWATER C OOLING O VERBOARD D ISCHARGE (I NCLUDING N ON -C ONTACT E NGINE C OOLING W ATE R ; H YDRAULIC S YSTEM C OOLING W ATER , R EFRIGERATION C OOLING W ATER )

EPA included the seawater cooling overboard provisions at the request of NOAA fisheries. NOAA fisheries identified that the inclusion of these requirements would better protect essential fis h habitat. These provisions in the sVGP are common- sense management approaches that when used, will reduce the discharge of overboard cooling water. The potential constituents of seawater cooling overboard discharge include entrained or dissolved materia ls from the system itself, including copper, iron, aluminum, zinc, nickel, tin, titanium, arsenic, manganese, chromium, lead, and oil and grease. Cooling water also can reach high temperatures, with the thermal difference between seawater intake and discha rge typically ranging from 5°C to 25°C, with maximum temperatures reaching 140°C. EPA has not prohibited the discharge of the heated seawater because it is infeasible with existing vessel design to prohibit their discharge. However, the Agency believes if vessel operators institute the best management practice of reducing discharges to ports or enclosed water bodies, impacts from the heated waters will be reduced. Discharges of seawater can be reduced by using shore

- based power when electrical systems onboard vessels are compatible with the available shore power.

4.11 C OMPLIANCE WITH OTHER STATUTES AND R EGULATIONS

These effluent limits contain the requirement to comply with other applicable statutes and regulations dealing with vessel discharges. Reliance o n other statutes and regulations to develop the permit requirements is a reasonable exercise of BPJ because these statutes and regulations have gone through an extensive process of evaluation and analysis by federal agencies and international organizations that have considerable expertise in vessel management. Furthermore, many of the best management practices considered by EPA were covered by these other authorities. These statutes and regulations are currently being implemented and therefore are technolog ically and economically practicable (BPT) and achievable (BAT) in light of best marine practice. Rather than reiterate the provisions of these statutes and regulations in their entirety for the permit’s general effluent limits, EPA has determined, based on BPJ, that incorporation of these statutes and regulations by reference is reasonable.

EPA has clarified in the permit "general provisions" section (Part 4.12 of the sVGP) that the permit is intended to refer to those provisions as they were in effect on the date of issuance of the final VGP. Although EPA is not required to respond to late commen ts on this draft permit (see Section 1.2.3 above), EPA does intend to consider and respond to any comments submitted to the Agency regarding the incorporation into this permit of requirements imposed after the close of the comment period but before final permit issuance, as long as the commenter submits them to the Agency promptly after the adoption of the requirement and clearly indicates that the comments address the incorporation by reference issue.Proposed Small Vessel General Permit (sVGP) Fact Sheet

33 EPA requests comment on this approach to incorporation by reference of other applicable requirements. EPA's proposed approach deviates from the 2008 VGP approach of incorporating requirements as they were in effect on the date of VGP pro posal; EPA proposes this approach for the sVGP to ensure that the requirements ultimately adopted in the permit are as current as possible. EPA also requests comment on the approach of making the referenced provisions applicable as they are in effect at the time of discharge (i.e., an approach where the permit would automatically incorporate future changes to referenced provisions). EPA seeks comment on the pros and cons of such an approach.

The statutes and regulations that were examined to inform the Agency’s BPJ decision and which are incorporated by reference into the provisions of the permit follow. These summaries are not meant to be lega lly binding or comprehensive reiterations; rather, they are short summaries designed to inform owners/operators of the existence of these authorities. The actual statutes and regulations implementing these authorities are the legally binding conditions of the permit.

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

Clean Water Act section 311 states that it is the United States’ policy that there should be no discharges of oil or hazardous substances into waters of the United States , adjoining shorelines, a nd certain specified areas, except where permitted under f ederal 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 t hat the President shall, by regulation, determine those quantities of oil and any hazardous substances that may be harmful if discharged.

EPA has defined oil quantities that “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 iridescen t appearance on the surface of the water. 40 CFR 110.1.

In the permit, oil, including oily mixtures, may not be discharged in quantities that may be harmful. This goal has proven to be achievable using available treatment technologies such as oil- water sep arators or oil -absorbent materials. For other discharges that can potentially be contaminated by oils, but may not easily be collected and treated, the Agency requires the operator to observe the surface of the receiving water to determine whether a sheen is visible. This would indicate that oils are present at concentrations that may be harmful and discharge
must cease.

Available at: http://www.epa.gov/oem/content/lawsregs/opprover.htm

4.11.2 National Marine Sanctuaries Act (16 U.S.C. Section 1431 et seq. and implementing regulations found at 15 CFR Part 922 and 50 CFR Part 404 [ NMSA ] )

NMSA authorizes the designation and management of National Marine Sanctuaries to protect marine resources with conservation, education, historical, scientific, and other specialProposed Small Vessel General Permit (sVGP) Fact Sheet

34 qualities. Additional restrictions and requirements may be imposed on vessel owners/operators who boat in and around National Marine Sanctuaries. For more information, please see the NOAA National Marine Sanctuaries Program website at http://sanctuaries.noaa.gov/

.

4.11.3 USDA Federal Noxious Weed Act, 7 CFR Part 360

The Federal Noxious Weed Act makes it unlawful to import or move any listed noxious weed. This may impact small vessel owner s/operators who may unknowingly transfer listed noxious weeds on their trailer, propeller, and other related areas. Additional information, as well as the list of noxious weeds, may be found on the USDA website at http://www.aphis.usda.gov/plant_health/plant_pest_info/weeds/index.shtml

.

4.11.4 Act to Prevent Pollution From Ships (APPS), 33 U.S.C. 1901

The International Convention for the Prevention of Pollution from Ships (MARPOL 73/78) is an international treaty that regulates certain discharges from vessels. It is primarily implemented in the United States by the Act to Prevent Pollution from Ships (APPS), 33 U.S.C.1901 et seq. The U.S. Coast Guard is the lead agency for APPS implementation and has issued implementing regulations , primarily found at 33 CFR Part 151. Th ose requirements already apply to many of the vessels covered by the permit. 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, Coast Guard 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, including a discharge oil content of less than 15 parts per million (ppm), and that the ship has in operation oily-water separating equipment, an oil content monitor, a bilge alarm, or a combination thereof. These requirements have been in place for a significant length of time, and the equipment necessary to meet these standards is widely available and already in use on ships subject to these regulations. Note that these requirements generally apply to vessels greater than 150 gross tons or 400 gross tons, depending upon vessel class; therefore, the requirements likely only apply to a few, if any, vessels eligible for coverage under the sVGP.

Substances regulated as “noxious liquid substances” (NLS) under APPS are divided into four categories based on their potential to harm marine resources and human health. See 33 CFR 151.47 and 151.49; 46 CFR Part 153, Table 1. Under 46 CFR 153.1128, discharges of NLS residues at sea may only take place at least 12 nautical miles from the nearest land. In light of this, the permit does not authorize such discharges within waters subject to the permit (i.e., inland waters and the waters of the 3

- mile territorial sea).

Annex III to MARPOL 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. That regulatory scheme establishes labeling, packaging, and stowage requirements for such materials so as to help avoid their accidental loss or spillage during transport. 40 CFR 122.44(p) prov ides that when an NPDES permit is issued to a vessel operating as a means of transportation, the permit is to require compliance with any applicable CoastProposed Small Vessel General Permit (sVGP) Fact Sheet

35 Guard regulations that establish specifications for safe transportation, handling, carriage, and storage of pollutants. The permit incorporates this requirement in Part 2.1.

Available at http://epw.senate.gov/atppfs.pdf

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

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 adverse effects on humans or the environment. It is a requirement of the permit that any registered pesticide must be used in accordance with its FIFRA label. This is included as a binding permit requirement, because FIFRA label requirements are esta blished after research, approved by the EPA Office of Prevention, Pesticides and Toxic Substances, and ensure that the pesticide, when used according to the label, can be used so that it will not cause unreasonable adverse effects on humans or the environment.

4.11.6 Oil Pollution Control Act (33 U.S.C. 2701 et seq.)

Additional requirements also affect vessel discharges

― in particular, the Oil Pollution Act of 1990 and the associated U.S. Coast Guard implementing regulations at 33 CFR Parts 155 and 157. These regulations establish and reinforce the APPS 15 ppm discharge standard for oil and oily mixtures for oceangoing ships and require most vessels to have an oily- water separator. Oceangoing vessels less than 400 gross tons must either have an approved oily- wa ter separator or retain oily-water mixtures onboard for disposal to an approved reception facility onshore.

Oceangoing vessels more than 400 gross tons, except vessels that carry ballast water in their fuel oil tanks, must be fitted with “approved 15 part s per million (ppm) oily

- water separating equipment for the processing of oily mixtures from bilges or fuel oil tank ballast.” 33 CFR 155.360. The maximum oily discharge standard is included as a binding requirement in this permit because it is the most ap propriate standard for oil and oily discharges and maintains current national and international standards. 33 CFR Part 155 was also referenced for oil containment and cleanup equipment and procedures. This section provides information on both equipment and procedures that are required for preventing and reacting to oil spills and discharges.

4.12 EPA E STABLISHMENT OF T ECHNOLOGY -B ASED E FFLUENT L IMITS IN THE S VGP

4.12.1 Background

The CWA requires that all point source discharges must meet technology- based effluent lim itations representing the applicable levels of technology- based control

. Water quality

- based effluent limitations (WQBELs) are required

, as necessary , where the technology

- based limitations are not sufficient to meet applicable water quality standards (WQS ). See P.U.D. No. 1 of Jefferson County et al. v. Washington Dept. of Ecology , 511 U.S. 700, 704 (1994). Water quality- based requirements will be discussed in greater depth in Section 6.5 . Both technology-Proposed Small Vessel General Permit (sVGP) Fact Sheet

36 based and water quality

- based effluent limitations are implemented through NPDES permits containing such limitations issued to point sources. CWA sections 301(a) and (b).

4.12.2 The Clean Water Act Requires EPA to Develop Effluent Limitations that Represent the Following:

4.12.2.1 Best Practicable Control Technology Currently Available (BPT)

The CWA requires BPT effluent limitations for conventional, toxic, and non-conventional pollutants. Section 304(a)(4) designates the following as conventional pollutants: BOD 5 , TSS

, fecal coliform, 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. EPA has identified 65 pollutants and classes of pollutants as toxic pollutants, of which 126 specific substances have been designated priority toxic pollutants. 40CFR 401.15 and 40 CFR Part 423 Appendix A. All other pollutants are considered to be nonconventional.

In specifying BPT, under CWA section 301(b)(1)(A); 304(b)(1)(B); 40 CFR 125.3(d)(1), EPA looks at a number of factors. EPA first considers the total cost of applying the control technology in relation to the effluent reduction benefits. The Agency also considers the age of the equipment and facilities ; the processes employed ; and any required process changes, engineering aspects of the control technologies, non

- water quality environmental impacts (including energy requirements), and such other factors as the EPA Administrator deems appropriate. Traditionally, EPA establishes BPT effluent limitations based on the average of the best performance of facilities within the industry of various ages, sizes, processes, or other common characteristics. Where existing performance is uniformly inadequate, BPT may reflect higher levels of control than currently in place in an industrial category if the Agency determines that the technology can be practically applied.

4.12.2.2 Best Conventional Pollutant Control Technology (BCT)

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. CWA section 301(b)(2)(E); 304(b)(4)(B); 40 CFR 125.3(d)(2). In addition to considering the other factors specified in section 304(b)(4)(B) to establish BCT limitations, EPA also considers a two

- part “cost -reasonableness'' test. EPA explained its methodology for the development of BCT limita tions in 1986. 51 FR 24974 (July 9, 1986).

4.12.2.3 Best Available Technology Economically Achievable (BAT)

For toxic pollutants and non- conventional pollutants, EPA promulgates effluent limitations based on BAT. CWA section 301(b)(2)(A); 304(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 ; nonwater quality environmental impacts, including energy requirements ; and other such factors as the EPA Administrator deems appropriate. The Agency retains considerable discretion in assigning th e weight accorded to these factors. BAT limitations may be based on effluentProposed Small Vessel General Permit (sVGP) Fact Sheet

37 reductions attainable through changes in a facility's processes and operations. Where existing performance is uniformly inadequate, BAT may reflect a higher level of performance t han is currently being achieved within a particular subcategory based on technology transferred from a different subcategory or category. BAT may be based upon process changes or internal controls, even when these technologies are not common industry pract ice.

This permit contains effluent limits that correspond to required levels of technology- based control (BPT, BCT, BAT) for various discharges under the CWA. Some effluent limits have been established by examining other existing laws and requirements. Wh ere these laws already exist, it was deemed feasible for the operators to implement these practices as effluent limits in this permit. Because these are demonstrated practices, EPA has found that they are technologically available and economically practicable (BPT) or achievable (BAT). In some cases, such as with the no (zero) discharge of TBT standard, numeric effluent limits have been established.

4.12.3 Numeric Limitations are Infeasible

Because of the nature of the vessel discharges authorized by this per mit, it is infeasible to derive numeric effluent limits to achieve these levels of control for all discharge types until greater information is available. Constituents in properly controlled discharges may vary based upon vessel type, age, size, and activities occurring onboard the vessel. In such situations, the CWA authorizes EPA to include non- numeric effluent limits in NPDES permits. 40 CFR 122.44(k)(3). The sVGP includes such non-numeric effluent limits developed for discharges for which developing n umeric effluent limits are infeasible at this time. Many of these non -numeric effluent limits require permittees to engage in specific behaviors or best management practices.

The non- numeric effluent limits are all intended to minimize or reduce pollutant s or constituents of concern in the vessel discharges authorized by this permit . These effluent limits include, but are not limited to, requirements to use phosphate-free and non- toxic soaps (reduce the discharge of nutrients and toxic constituents in ves sel cleaning discharges) and exercising extra precautions when fueling the vessel (to reduce the discharges of fuel or oil, including oily mixtures, into waters subject to this permit). The limits are expected to be effective in reducing harmful constitue nts in effluent streams reaching receiving waters. The non -numeric effluent limits are discussed in greater detail in Part 2.1 of the permit.

For purposes of this permit, and consistent with the technology- based requirements of the CWA, EPA is clarifying that the term “minimize” means to reduce and/or eliminate to the extent achievable using control measures (including best management practices) that are technologically available and economically practicable and achievable in light of best marine practice. This permit defines the term “minimize” in order to provide a reasonable approach by which EPA, permittees, and the public can determine/evaluate appropriate control mea sures for vessels to control discharges. EPA believes that for most small vessel discharges, minimization of pollutants in those discharges can be achieved without using highly engineered, complex treatment systems. The specific limits included in Part 2 emphasize effective pollution prevention controls, such as requiring phosphorus-free soap and minimizing production of graywater in port.Proposed Small Vessel General Permit (sVGP) Fact Sheet

38 4.12.4 Technology- Based Effluent Limits

EPA has determined that the technology-based numeric and non- numeric effluent limit s in this permit, taken as a whole, constitute the first level of control (BPT for all pollutants) and the second level of control (BAT for toxic and non-conventional pollutants and/or BCT for conventional pollutants) for discharges from vessels. For all o f the discharges in this permit, the technology-based limits are based on best professional judgment, as authorized under CWA section 402(a)(1) and 40 CFR 125.3.

4.12.4.1 Types of Technology- Based Effluent Limits

As stated above, t he CWA establishes two l evels of technology-based controls. The first level of control, “best practicable control technology currently available,” or BPT

, applies to all pollutants. CWA section 304(b)(1)(B); 33 U.S.C. § 1314(b)(1)(B). BPT represents the initial stage of polluta nt discharge reduction, designed to bring all sources in an industrial category up to the level of the average of the best source in that category. See EPA v. National Crushed Stone Ass’n , 449 U.S. 64, 75-76 (1980). In the second level of control, all po int sources are required to meet effluent limitations based on “best conventional pollutant control technology,” or “BCT” CWA section 304(b)(4)(B); 33 U.S.C. § 1314(b)(4)(B) or “best available technology economically achievable,” or “BAT” CWA section 301(b )(2)(A); 33 U.S.C. § 1311(b)(2)(A), depending on the types of pollutants discharged. BCT applies to conventional pollutants, listed at 40 CFR § 401.16 BOD 5 , pH, TSS , fecal coliform, and oil and grease). BAT applies to toxic and non-conventional pollutants. Technology-based limits are to be applied throughout industry without regard to receiving water quality. Appalachian Power Co. v. EPA, 671 F.2d 801 (4th Cir. 1982). The following sections describe these limits in greater detail.

4.12.4.2 Inclusion o f Non

- Numeric Technology

- Based Limits in NPDES Permits

NPDES permits are required to contain technology- based limitations. CWA sections 301(b)(1)(A)(BPT); 301(b)(2)(A)(BAT) ; 301(b)(2)(E) (BCT); 40 CFR 122.44(a)(1). Technology- based limits in the permit r epresent the BPT (for conventional, toxic, and nonconventional pollutants), BCT (for conventional pollutants), and BAT (for toxic and nonconventional pollutants) level of control for the applicable pollutants. Where EPA has not promulgated effluent limi tations guidelines and standards for an industry, or if an operator is discharging a pollutant not covered by the effluent guideline, permit limitations may be based on the best professional judgment (BPJ, sometimes also referred to as best engineering jud gment) of the permit writer. 33 U.S.C. 1342(a)(1); 40 CFR 125.3. See Student Public Interest Group v. Fritzsche, Dodge & Olcott , 759 F.2d 1131, 1134 (3d Cir. 1985); American Petroleum Inst. v. EPA , 787 F.2d 965, 971 (5th Cir. 1986). For th is general per mit, all of the technology

- based limits are based on BPJ decision -making because no ELGs apply.

Most of the BPJ limits in this permit are in the form of non- numeric control measures, commonly referred to as best management practices. Best management practices are considered “effluent limitations” within the meaning of the CWA. See Citizens Coal Council v. EPA , 447 F.3d 879, 895-96 (6th Cir. 2006); Waterkeeper Alliance, Inc. v. EPA , 399 F.3d 486, 502 (2d Cir. 2005) (holding that site

- specific best management practices at issue constitute effluent limitations within the meaning of the CWA); Natural Res. Def. Council, Inc. v. EPA

, 673 F.2dProposed Small Vessel General Permit (sVGP) Fact Sheet

39 400, 403 (D.C. Cir.1982) (“section 502(11) defines ‘effluent limitation’ as ‘ any restriction’ on the amounts of p ollutants discharged, not just a numerical restriction.”).

Through the Agency’s NPDES permit regulations, EPA interpreted the CWA to allow best management practices to take the place of numeric effluent limitations under certain circumstances. 40 CFR §122.44(k), entitled “Establishing limitations, standards, and other permit conditions (applicable to State NPDES programs ...),” provides that permits may include best management practices to control or abate the discharge of pollutants when: (1) “[a]uthorized under section 304(e) of the CWA for the control of toxic pollutants and hazardous substances from ancillary industrial activities”; (2) “[a]uthorized under section 402(p) of the CWA for the control of stormwater discharges”; (3) “[n]umeric effluent limit ations are infeasible”; or (4) “[t]he practices are reasonably necessary to achieve effluent limitations and standards or to carry out the purposes and intent of the CWA .” 40 CFR 122.44(k).

Various courts have held that the CWA does not require the EPA to set numeric limits where such limits are infeasible. See, e.g., Natural Resources Defense Council v. Costle, 568 F.3d at 1380 (“when numerical effluent limitations are infeasible, EPA may issue permits with conditions designed to reduce the level of efflu ent discharges to acceptable levels”; Citizens Coal Council v. EPA , 447 F.3d 879, 895-96 (6th Cir. 2006). The Sixth Circuit cited to Waterkeeper Alliance, Inc. v. EPA , 399 F.3d 486, 502 (2d Cir. 2005), stating “site

- specific best management practices are effluent limitations under the CWA” (agreeing with EPA that the CWA does not require numeric effluent limits “where such limits are infeasible” because “a baseline pollutant loading cannot be calculated.”).

4.12.4.3 EPA’s Decision to Include Non -N umeric Technology

- Based Effluent Limits in This Permit and Rationale for Why the Limits Represent the Appropriate (BPT, BCT, or BAT) Level of Control

4.12.4.3.1 Non

- Numeric Technology- Based Effluent Limits in T his Permit

With the exception of the zero -discharge standard for TBT , numeric effluent limitations are not feasible to calculate for vessel discharges in this permit iteration. EPA may develop numeric effluent limits for certain discharge types for the next permit iteration, if applicable. Vessels vary widely by type and/or class, size, and activity and can discharge a wide variety of waste streams, whose volume will vary dependent upon seas, cargo carried, and age of the vessel. Additionally, vessel operators cannot install equipment onboard their vessels until that equipment has been approved by the Coast Guard and, in some cases, their class societies. Hence, EPA cannot require use of equipment or technologies that would conflict with the requirements of these organizations without fully understanding the implications of such requirements.

These factors create a situation where, at this time, it is generally not feasible for EPA to calculate numeric effluent limitations to effectively regulate vessel discharges, with the exception noted above (EPA is able to calculate a numeric effluent limit for th at discharge category because extensive research has been conducted and effective pollution control technologies are widely or will be widely commercially available ). Non- numeric effluent limits, such as use of phosphate-free, non-toxic, biodegradable soaps and detergents, will reduce theProposed Small Vessel General Permit (sVGP) Fact Sheet

40 discharge of known pollutants into waters subject to this permit. However, when considering factors such as precipitation and the variability of volumes of water used in deck washdowns, the number of individual discharge points that may exist onboard, and the range of quantities of soaps and detergents used, it is not feasible for EPA to calculate end-of- pipe discharge limits. Therefore, in light of these considerations, EPA has determined that it is not feasible for the Agency to calculate numeric, technology- based limits for many of the discharges covered under this permit, and, based on the authority of 40 CFR 122.44(k) (3) , has chosen to adopt nonnumeric effluent limit s.

The BAT/BCT/BPT non

- numeric effluent limits in this permit are expressed as:

• Specific pollution prevention practices for minimizing or eliminating the pollutants or constituents of concern in the discharge.

• Specific behavioral practices for minimizing or eliminating the pollutants or constituents of concern in the discharge.

• Narrative requirements to minimize pollutants or constituents of concern in discharges or the discharges themselves. 9

• Limiting or eliminating discharges at certain times for dischar ge types that can be limited or eliminated for short periods due to technology available onboard the vessel and the vessel design (i.e. , if the vessel can hold the discharge type for limited periods or reduce production of the effluent or use an onshore disposal option ).
In the context of this general permit, EPA has determined these non- numeric effluent limits represent the BPT for all pollutants, BCT for conventional pollutants, and BAT economically achievable for toxic and non-conven tional pollutants.

4.12.4.3.2 Requirements are Technologically Available and M eet the BPT and BAT E conomic T ests S et F orth in the CWA

EPA has found that the requirements of this permit represent the appropriate (BPT, BCT, and BAT) level of control represe nting performance of commercial fishing vessels and other nonrecreational vessels less than 79 feet

, taking into account the various ages of equipment and types of vessels involved; the process employed ; the engineering aspects of various types of control techniques; process changes ; and non -water quality environmental impacts, including energy impacts , of the controls required under this permit. With respect to the non- water quality environmental impacts, including energy impacts, EPA finds that they are negligible. Additionally, EPA finds that the limits in this permit meet the BPT and BAT economic tests

. Because of the type of controls under consideration here minimize toxic, nonconventional, and conventional pollutants, conventional pollutants are co ntrolled by the same practices that control toxic and nonconventional pollutants. Hence, EPA is evaluating effluent limits using a BPT and a BAT standard, but because conventional pollutants will also be adequately controlled by these same effluent limits for which EPA applied the BPT and BAT tests, EPA has determined that it is not necessary to conduct BCT economic tests.

9 These types of effluent limits allow owners/operators to use any control measures appropriate for their vessels to meet those limits.Proposed Small Vessel General Permit (sVGP) Fact Sheet

41 5. MONITORING AND RECORDKEEPING

Pursuant to CWA section 308 and 402(a)(2), 40 § CFR 122.43(a), and other applicable implementing regulations, the following requirements have been included in the permit, as discussed below.

5.1 R ECORDKEEPING

Records are useful tools for both the vessel owner or operator and EPA. They allow an owner or operator to assess their own permit compliance by providing an easy way to reference permit requirements that have been met, as well as a way to identify troublesome areas of the vessel that cause more pollution

- related issues

. They also allow EPA to assess permit compliance

.

Vessel owner s /operators must maintain a signed paper copy of the Permit Authorization and Record of Inspection Form (PARI) onboard the vessel. EPA, or EPA’s authorized representative , may u se this form to determine basic compliance with the permit, including whether the owner/operator has read the terms of the permit and whether the owner/operator has conducted quarterly visual inspections as required by the permit. You must produce this for m for EPA or EPA’s authorized representative upon request (see Part 4.5 of the sVGP).

5.2 R OUTINE Q UARTERLY V ISUAL I NSPECTION

The routine quarterly visual inspection requirements include a detailed, thorough inspection of areas of the vessel that are difficult to inspect on a more regular basis, such as the vessel hull. It also requires that vessel owner/operators conduct an inspection of areas, which if not properly maintained or if damaged, are more likely to result in environmental degradation (e.g., protect ive seals, machinery). However, the routine quarterly visual inspection does not require the vessel be placed out of the water or into a drydock.

T he routine quarterly visual inspection of the vessel highlights problem areas of the vessel that may need additional attention . This allows the Master, owner, or operator to establish and implement additional procedures applicable to problem areas to reduce future problems. To this end, t he routine quarterly visual inspection requires that all pollution control equipment be inspected to ensure it is functioning properly. This requirement provides a reminder and opportunity to complete maintenance activities on onboard equipment. The owner/operator is
respons ible for conducting a thorough inspection and taking corrective actions based on that inspection. If the owner/operator is unsure of the quality of inspections that will be included as part of their routine quarterly visual inspection, EPA strongly recommends they use their own personnel to conduct the full inspection. The owner/operator is ultimately responsible for completion of this requirement.

To aid in determining permit compliance, e ach quarterly visual inspection must be recorded on the PARI F orm. The form must be signed by the person conducting the inspection and must include basic information relating to the inspection and any corrective actions taken as a result of inspection findings.Proposed Small Vessel General Permit (sVGP) Fact Sheet

42 6. ADDITIONAL REQUIREMENTS

6.1 C ONTINUATION OF THE P ERMIT

If the permit is not reissued or replaced prior to its expiration date, existing dischargers will continue to be covered under an administrative continuance, in accordance with section 558(c) of the APA and 40 CFR 122.6. The current permit will remain in effect for discharges that were covered prior to expiration until EPA acts on a permit renewal. If coverage is provided to a permittee prior to the expiration date of the permit, the permittee would automatically be covered by the permit until the earliest of: (1) the authorization for coverage under a reissuance or replacement of the permit; (2) the issuance of a new general permit which covers the vessel discharges or vessel type and provides coverage without requiring to submit a notice of intent to obtain cover age; (3 ) the issuance or denial of an individual permit for t he permittee’s discharges; or (4) the formal permit decision by EPA not to reissue the general permit, at which time EPA will identify a reasonable time period for covered dischargers to seek coverage under an alternative general permit or an individual permit.

EPA has followed this approach in order to extend coverage for these permittees under a permit vehicle until reissuance of the permit or coverage under some other permit. For more informat ion, see 40 CFR 122.6. EPA does not have the authority to provide coverage to “new” vessels seeking coverage under an expired permit (i.e., vessels that were not covered under the permit prior to expiration).

6.2 A LTERNATIVE P ERMITS

6.2.1 EPA Requiring Coverage under an Alternative Permit

Pursuant to 40 CFR 122.28(b)(3), EPA may require a discharger to apply for and obtain an individual permit instead of obtaining coverage under the general permit. These regulations also provide that any interested party may petition EPA to take such an action. The issuance of an individual permit will be in accordance with 40 CFR Part 124 and provide for public comment and appeal of any final permit decision. The circumstances in which such an action would be taken are set forth at 40 CFR 122.28(b)(3).

6.2.2 Permittee Requesting Coverage under an Alternative Permit

After issuance of the permit, the permittee may request to be excluded from such coverage by applying for an individual permit. In such a case, the permittee must submit an individual permit application, in accordance with 40 CFR 122.28(b)(3)(iii), along with a statement of reasons supporting the request, to the applicable EPA regional o ffice listed in Part 7 of this permit. The request may be granted by issuance of an individual permit or authorization of coverage under an alternative general permit if the reasons are adequate to support the request. Under this scenario, if an individual permit is issued, or authorization to discharge under an alternative NPDES permit is g ranted, your authorization to discharge under this permit is automatically terminated under 40 CFR 122.28(b)(3)(iv) on the effective date of the individual permit or the date of authorization of coverage under the alternative general permit.Proposed Small Vessel General Permit (sVGP) Fact Sheet

43 6.3 P ERMIT C OMPLI ANCE

Part 4.3 of the permit is intended to inform the permittee of the potential consequences of failure to comply with the conditions of the permit. Part 4.3 explains that any failure to comply with the conditions of the permit constitutes a violation of the Clean Water Act. In addition, the standard NPDES permit condition for the “duty to comply” (see 40 CFR 122.41(a)) is applicable to all permittees.

6.4 O THER P ERMIT C ONDITIONS (P ARTS 4.4-4.10 OF THE S VGP )

Today’ s sVGP clearly states that no property rights are conveyed to any permittee, among other things. Furthermore, the permit states that if a portion of this permit is invalidated, it does not render the whole sVGP invalid.

This permit also contains savings clauses which state that nothing in the pe rmit shall be construed to preclude the institution of any legal action or relieve the permittee from any responsibilities, liabilities, or penalties established pursuant to any applicable state law or regulation under authority preserved by section 510 of the Clean Water Act or applicable requirements or prohibitions under other provisions of federal law or regulations. In addition, federal regulations require that the standard permit conditions provided at 40 CFR 122.41 be applied to all NPDES permits . As provided by the introductory text of 40 CFR 122.41 and the regulation at 40 CFR 122.43(c), all of the standard permit conditions published in federal regulations at 40 CFR 122.41 are incorporated into the permit by reference. The permit requires permitte es to comply with all applicable standard conditions.

6.5 W ATER Q UALITY -B ASED E FFLUENT L IMITATIONS

The sVGP includes water quality-based effluent limits (WQBELs) to control discharges as stringently as necessary to meet applicable water quality standards

. The provisions of Part 4.11 of the permit constitute the WQBELs for this permit, and supplement the permit’s technolog ybased effluent limits in Part 2. Where the implementation of the technology- based requirements in this permit is not sufficient to meet the applicable receiving water’s water quality standards, the permittee may be subject to further WQBELs

. Prior to or after permit issuance and authorization to discharge, EPA may require additional WQBELs on a site- specific basis, or require the permittee to obtain coverage under an individual permit, if information in the NOI, required reports, or from other sources indicates that, after meeting the technology- based limits in Part 2 and the WQBELs in Part 4.11 , the facility is caus ing or contributing to an excursion above water quality standards 10

.

Part 4.11 includes the permit limits that are as stringent as necessary to achieve water quality standards, consistent with CWA section 301(b)(1)(C) and 122.44(d)(1). EPA generally expects that vessels that achieve the permit’s technology

- based limits through the careful implementation of effective pollution control measures and best management practices are likely

10 In using the phrase “excursio n above,” the permit tracks the language in 40 CFR 122.44(d)(1). There are some instances, however, where pollutants would cause nonattainment of the applicable criterion by lowering the water quality below the criterion, as with dissolved oxygen. In such situations, such lowering would be considered an “excursion above” within the meaning of the proposed permit condition.Proposed Small Vessel General Permit (sVGP) Fact Sheet

44 to already be controlling their vessel discharges to a degree that would mak e additional water quality-based controls unnecessary. However, to ensure that this is the case, the permit contains additional conditions, which, in combination with the BAT/BPT/BCT limits in this permit, EPA expects to be as stringent as necessary to achieve water quality standards . EPA notes that the WQBELs included in this permit are non-numeric. EPA relies on a narrative expression of the need to control discharges as necessary to meet applicable water quality standards, and to employ additional contro ls where necessary to be consistent with applicable waste load allocations ( WLAs ) in an approved or established TMDL or to comply with a s tate or t ribe’s antidegradation policies. This is a reasonable approach for this permit because EPA has determined tha t it is infeasible to calculate numeric water quality

- based effluent limits for vessels at this time . EPA reached this determination primarily based on the mobile nature of vessels used in a capacity of transportation . With thousands of water bodies across the country, and the potential for any vessel to discharge into almost any water, it is infeasible for EPA to calculate numeric limits for each vessel for each water body at this time . Furthermore, as explained in Section 4.12 of this fact sheet, establishing numeric water quality

- based limits poses many of the same challenges that EPA faced in setting technology

- based discharge limits

. As mentioned, this permit requires that each permittee must control its discharge as necessary to meet applicable water quality standards

. EPA generally expects that compliance with the other conditions in this permit (e.g., the technology- based limits, corrective actions, etc.) wi ll result in discharges that are controlled as necessary to meet applicable water quality standards. If the permittee becomes aware, or EPA determines, that the discharge causes or contributes to a standards exceedance, corrective actions and EPA notificat ion are required

. In addition, at any time EPA may impose additional, more stringent WQBELs on a site

- specific basis, or require an individual permit, if information suggests that the discharge is not controlled as necessary to meet applicable water quality standards

. The language in Part 4.11 affirms the permittee’s requirement to control its discharges as stringently as necessary to meet applicable water quality standards. EPA reserves the authority to require more stringent requirements where necessary to meet applicable standards, or, alternatively, to require the permittee to apply for an individual permit.

The purpose of Part 4.11.1 of the sVGP is to include a definition for “impaired waters” so that the scope of the requirements in 4.11.1 can be more readily understood by permittees. Part 4.11.1 defines “impaired waters” as those which have been identified by a state or EPA pursuant
to s ection 303(d) of the Clean Water Act as not meeting applicable s tate water quality standards

. This may include both waters with approved or established TMDLs, and those for which a TMDL has not yet been approved or established. The permit contains additional provisions for vessels discharging pollutants that have the reasonable potential to cause or contribute to an imp airment of those specified waters.

Part 4.11.1 reiterates that if a vessel discharges to an impaired water without an EPA

approved or established TMDL, EPA can provide the permittee with additional requirements with which to comply. EPA can also impose ad ditional requirements on discharges that are not directly discharged to an impaired water if they cause or contribute to an exceedance in another water body affected by the discharge.Proposed Small Vessel General Permit (sVGP) Fact Sheet

45 Part 4.11.1 outlines the process for imposing additional requirements on permittees when they discharge into waters that have a WLA assigned to vessels

. During the term of the permit, EPA may inform the owner/operator if such a WLA has been established that applies to their vessel discharges . In addition to requiring permitte es to comply with the conditions of the WLA, EPA will also assess whether any more stringent requirements are necessary to comply with the WLA, whether compliance with the permit’s existing requirements is sufficient to comply with the WLA, or whether the owner/operator must apply for individual permit coverage ( see part 1.8.1).

EPA believes that the permit’s provisions are consistent with EPA’s antidegradation policy. EPA does not believe that a vessel covered under this permit should be considered a new or increased point source discharge that would fore seeably lower water quality under EPA's antidegradation regulation, located at 40 CFR 131.12, the typical trigger for antidegradation review ( see EPA Water Quality Standards Handbook, p. 4-10, available a t: http://www.epa.gov/waterscience/standards/handbook/ ); see also EPA’s Response to Comments for Oregon Water Quality Standards 2004 approval, page 31). Generally speaking, the vessels

co vered under this permit and their discharges existed before EPA’s issuance of the sVGP. Such existing discharges do not constitute “new or increased point source discharges” that would for eseeably lower water quality within the meaning of 40 CFR § 131.12, and thus do not trigger antidegradation review. As stated in EPA’s Water Quality Standards Handbook, antidegradation review requirements “are triggered by any action that would result in the lowering of water quality in a high-quality water. Such activities as new discharges or expansion of existing facilities would presumably lower water quality and would not be permissible unless the s tate conducts a review consistent with” the State’s antidegradation requirements. EPA Water Quality Standards Handbook, p. 4- 7, available at: http://www.epa.gov/waterscience/standards/handbook/

. EPA’s issuance of the sVGP and vessels’ applications for coverage under the VGP will not for e seeably result in the lowering of water quality because those vessels and their discharges existed before the permit was issued and coverage was granted. If anything, EPA’s issuance of the s VGP will improve water quality as vessels carry out the permit’s technology

- based requirements. Further, as stated by EPA in its July 7, 1998 Advance Notice of Proposed Rulemaking, antidegradation “specifies the framework to be used in making decisions regarding changes in water quality.” See 63 Fed. Reg. 36779-80. Again, in the context of the s VGP

, there are no expected “changes in water quality

, ” at least no negative changes. Finally, as stated in EPA’s Response to Comments for Oregon Water Quality Standards 2004 approval, antidegradation “would require the permit authority and applicant to undergo an antidegradation review if the discharge woul d lower water quality as compared to the prior discharge.” Again, vessels covered under the s VGP will not typically “lower water quality as compared to the prior discharge” since the very same vessels that are being permitted under the s VGP constituted th e prior unregulated discharges that existed before issuance of the permit. The s VGP merely authorizes point source discharges that previously existed but were unregulated by EPA’s NPDES regulations. Such existing discharges are not what EPA’s antidegradation regulation intends to cover, as evidenced by the statements cited above. As a result, EPA does not consider vessels covered by this permit to be new or increased point source discharges that would for eseeably lower water quality for antidegradation purposes, and thus antidegradation review is not triggered.Proposed Small Vessel General Permit (sVGP) Fact Sheet

46 6.6 O THER L EGAL R EQUIREMENTS

6.6.1 Ocean Discharge Criteria

The Ocean Discharge Criteria (40 CFR Part 125, Subpart M) establish regulations for issuance of NPDES permits for discharges into the territorial seas, the contiguous zone, and the ocean as these terms are defined in the CWA. The permit would cover commercial fishing vessels and non- recreational vessels less than 79 feet operating as a means of transportation when within the territorial seas. It thus is subject to the Ocean Discharge Criteria regulation with respect to discharges incidental to the normal operation of such vessels into the territorial seas. For purposes of this evaluation, the territorial seas means the belt of the seas measured from the line of ordinary low water along that portion of the coast that is in direct contact with the open sea and the line marking the seaward limit of inland waters, and extending seaward a distance of three miles (33 U.S.C. 1362(8)).

Under 40 CFR 125.123(a), if EPA, on the basis of available information determines prior to permit issuance that the discharges authorized will not cause unreasonable degradation of the marine environment, EPA may issue an NPDES permit, which may be conditioned as necessary to assure that the discharge will not cause unreasonable degradation. The regulations (40 CFR 125.121(e)) define unreasonable degradation of the marine environment as meaning:

• Significant adverse changes in ecosystem diversity, productivity , and stability of the biological community within the area of discharge and surrounding biological communities,

• Threat to human health through direct exposure to pollutants or through consumption of exposed aquatic organisms, or

• Loss of aesthetic, recreational, scientific or economic values that is unreasonable in relation to the benefit derived from the discharge.
The Ocean Discharge Criteria require that EPA consider a number of factors in the determination of the degree of degradation to the marine environment. These factors include the amount and nature of the pollutants, the potential transport of the pollutants, the character and uses of the receiving water and its biological communities, the existence of special aquatic sites (including parks, refuges, etc.), any applicable requirements of an approved Coastal Zone Management plan, and potential impacts on water quality, ecological health and human health and any other factors the Administrator deems appropriate. 40 CFR 125.122(a). In addition, the Ocean Discharge Cr iteria establish a presumption that discharges in compliance with state water quality standards will not cause unreasonable degradation with respect to the pollutants subject to those standards. 40 CFR 125.122(b). After consideration of the Ocean Discharge Criteria, EPA has determined that the discharges authorized by the NPDES permit into the territorial seas in accordance with permit requirements will not cause unreasonable degradation of the receiving
waters.

The discharges that would be authorized by the permit are limited to those discharges incidental to the normal operation of commercial fishing vessels and vessel s less than 79 feet

, and will be of limited volumes. Additionally, smaller vessels tend to have fewer discharge typesProposed Small Vessel General Permit (sVGP) Fact Sheet

47 than l arger vessels. For example, many small vessels have limited, if any, sources of graywater on board their vessels. In addition, because many vessels in the territorial seas are likely to be underway as part of their voyage, any discharges incidental to their normal operation would be expected to receive significant dilution due to movement of the vessel and mixing by vessel propellers, followed by further dispersal and transport beyond the area of the vessel’s operation.

In developing the permit, the Agency has taken into consideration that discharges incidental to the normal operation of vessels are subject to the permit and have the potential to be contaminated with oil or other potentially persistent or bioaccumulative pollutants. The permit therefore c ontains a number of best management practices intended to avoid or reduce the potential for such contamination . In addition, the permit requires compliance with all federal environmental laws that establish controls on oily or hazardous discharges, includi ng among others, CWA section 311 (33 U.S.C. 1321), the Act to Prevent Pollution from Ships (33 U.S.C. 190-1915), the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq. ), and the Oil Pollution Control Act (33 U.S.C. 2701-2761). EPA be lieves that these controls will prevent unreasonable degradation of the marine environment.

The Agency also has taken into account the biological communities and receiving waters that would be exposed to the discharges incidental to the normal operation o f vessels that will be authorized by the permit. This consideration has necessarily been complicated by the fact that vessels have the potential to traverse vast distances in the territorial sea while discharging. The Agency has taken an approach of identi fying potentially sensitive areas in which vessels may operate and providing for additional controls when discharges occur in such areas. In addition to requiring compliance with other applicable federal laws, the permit includes other conditions to impose additional controls and requirements on covered discharges in sensitive receiving waters (Part 4.11.1 of the permit). The Agency will also undertake consultation with respect to Essential Fish Habitat in accordance with 50 CFR Part 600 and endangered spec ies and their critical habitat in accordance with Section 7 of the Endangered Species Act, and will also request consistency review for the permit in accordance with section 307(c) of the Coastal Zone Management Act. Any final permit may include additional terms and conditions as are considered necessary following completion of such consultations and review.

Finally, this permit applies to discharges to the outer limit of the three mile territorial sea. State water quality standards also apply within these waters and the permit thus contains effluent limi tations as necessary to meet those applicable water quality standards (Part 4.11). In addition, because the permit would be issued by EPA, it is subject to s tate certification as to compliance with such standards under section 401 of the CWA Water Act, and EPA will be initiating that certification process with the s tates in the near future. Under 40 CFR 125.122(b), EPA presumes that discharges in compliance with state water quality standards will not to cause unreasonable degradation of the marine environment with respect to specific pollutants or conditions specified in such standards.

In light of the foregoing, EPA has determined that issuance of the permit will not cause:

• Significant adverse changes in ecosystem diversity, productivity , and stability o f the biological community within the area of discharge and surrounding biological communities,Proposed Small Vessel General Permit (sVGP) Fact Sheet

48 • Threat to human health through direct exposure to pollutants or through consumption of exposed aquatic organisms, or

• Loss of aesthetic, recreational, scientific or economic values that is unreasonable in relation to the benefit derived from the discharge.
Accordingly, in accordance with 40 CFR 125.123(a), the Agency has determined that issuance of the permit with the controls included will not cause unreasonable degradation of the marine environment.

6.6.2 Coastal Zone Management Act (CZMA)

The Coastal Zone Management Act (CZMA) and its implementing regulations (15 CFR Part 930) require that any f ederal licensed activity directly affecting the coastal zone of a state with an approved Coastal Zone Management Program (CZMP) be consistent with the enforceable policies of that approved program to the maximum extent practicable. Agency general permits that do not involve case- by -case or individualized determinations by the Agency are federal activities for the purposes of CZMA section 307(c)(1). For the final s VGP , EPA will make a national consistency determination regarding the enforceable policies in each approved state CZM program for the coastal zones including state waters where the s VGP would authorize discharges. 15 CFR 930.31(d).

6.6.3 Endangered Species Consultation

Section 7(a)(2) of the Endangered Species Act (ESA) requires each federal agency, in consultation with and with the assistance of the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), collectively “the Services,” to ensure that the actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of any endangered or threatened species (referre d to as “listed species”) or result in the destruction or adverse modification of their designated critical habitats.

The Services have published regulations implementing ESA section 7 at 50 CFR Part 402. The regulations provide that a f ederal agency (suc h as EPA) must consult with FWS, NMFS, or both if the agency determines that an activity authorized, funded, or carried out by the agency may affect listed species or critical habitat. The kinds of effects that trigger the consultation obligation could include, among other things, beneficial, detrimental, direct, and indirect effects. EPA plans to commence consultation with the Services in the near term.

6.6.4 Tribal Consultation

Consistent with Executive Order 13175, EPA is engaged in consultation and collaboration with tribal officials in the development of the sVGP. As part of these consultations, EPA has provided overviews of the NPDES vessel program to the National Tribal Council, and provided additional information and sought feedback from tribal represent atives. EPA will consider any potential concerns of t ribes with respect to how this permit might affect Indian Country or other
t ribal i nterests.Proposed Small Vessel General Permit (sVGP) Fact Sheet

49 6.6.5 Essential Fish Habitat Consultations

The Magnuson-Stevens Fishery Conservation and Management Act, as amended by the Sustainable Fisheries Act of 1996 (Public Law 104-267), established procedures to identify, conserve, and enhance essential fish habitat (EFH); that is, essential habitat for s pecies regulated under a federal fisheries management plan (FMP). The A ct requires federal agencies to consult with National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NOAA NMFS) on all actions, or proposed actions, authorized, funded, or undertaken by the agency that might adversely affect EFH . Upon review, EPA has determined that issuance of this final permit will have no adverse effect on EFH because the sVGP will impose, for the first time, CWA effluent limitations on d ischarges incidental to the normal operation of the vessel universe subject to this permit

.

7. STATE OR TRIBAL REQUIREMENTS RESULTING F ROM 401 CERTIFICATION

Part 5 of t he final s VGP identifies provisions provided to EPA by s tates and t ribes in their CWA § 40 1 certifications t hat the s tates and t ribes deem necessary to assure compliance with applicable provisions of the CWA and any other appropriate requirements of s tate and t ribal law. See 33 U.S.C. 1341(d); 40 CFR § 124.53(e)(1). Pursuant to CWA § 401(d), EP A will attach those s tate and tribal provisions to the final sVGP; those that constitute effluent or other limitations or monitoring requirements are enforceable conditions of the federal permit. American Rivers, Inc. v. FERC , 129 F.3d 99, 107 (2nd Cir. 1997). These conditions are subject to review in s tate and t ribal administrative and judicial tribunals with appropriate jurisdiction. 40 CFR § 124.55(e); American Rivers, Inc. v. FERC , 129 F.3d 99, 102 (2nd Cir. 1997); Roosevelt Campobello Int’l Park Comm’n v. EPA , 684 F.2d 1041, 1056 (1st Cir. 1982). The sVGP will also include conditions provided by states as part of their concurrence with this permit for CZMA purposes if applicable (see Section 6.6.2 of this fact sheet).

8. DEFINITIONS

Part 6 of the permit provides permit-specific definitions of statutory, regulatory, and other terms important for understanding this permit and its requirements. Any terms that are not listed in this definitions section have the meaning given to the terms by 40 CFR Section 122.2 (the definitions section of the NPDES regulations). To develop these definitions, EPA has, where possible, relied on existing definitions in other laws and regulations applicable to this universe of permittees in order to provide consistency with those laws and provide permittees with a familiar framework. For those definitions that were developed based on another source, the citation to that law or regulation is included in brackets after the definition. EPA seeks comment on the definitions section as a whole, and the specific definitions contained therein.

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