Clean Water Act Permitting Clean Water Act Permitting andand

Operational Discharges from Operational Discharges from VesselsVessels

An OverviewAn OverviewFebruary 2007February 2007

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CONTENTSCONTENTS

• Clean Water Act (CWA) Permit BasicsClean Water Act (CWA) Permit Basics

• Vessel Permit ExclusionsVessel Permit Exclusions

• Court DecisionCourt Decision

• ImplicationsImplications

• Questions & Issues to ConsiderQuestions & Issues to Consider

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CWA PERMIT BASICSCWA PERMIT BASICS For more info visitFor more info visit

http://cfpub.epa.gov/npdes/about.cfm?program_id=0http://cfpub.epa.gov/npdes/about.cfm?program_id=0

• ““Discharge of a pollutant” generally Discharge of a pollutant” generally prohibited without a permit [CWA prohibited without a permit [CWA § § 301(a)]301(a)]

• National Pollutant Discharge Elimination National Pollutant Discharge Elimination System (NPDES) Permits [CWA § 402]System (NPDES) Permits [CWA § 402]– Individual permitsIndividual permits– General permitsGeneral permits

• State authorizationState authorization

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CWA PERMIT BASICS [Cont]CWA PERMIT BASICS [Cont]

• Effluent limits [CWA Effluent limits [CWA § 301(b)]§ 301(b)]– Technology based [CWA Technology based [CWA § 304(b)]§ 304(b)]

•Effluent guidelinesEffluent guidelines

•Best professional judgment (BPJ)Best professional judgment (BPJ)

– Water quality based [CWA Water quality based [CWA § 303]§ 303]•State certification (if EPA-issued) [CWA § 401]State certification (if EPA-issued) [CWA § 401]

• Processing Processing •Propose draft permitPropose draft permit

•Public commentPublic comment

• Issue final permitIssue final permit

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VESSEL PERMIT VESSEL PERMIT EXCLUSIONSEXCLUSIONS

•REGULATORYREGULATORY exclusion exclusion [40 CFR [40 CFR 122.3(a)]122.3(a)]– At issue in lawsuit & subject of court At issue in lawsuit & subject of court

decisiondecision

• Excludes certain discharges incidental Excludes certain discharges incidental to the normal operation of vessels from to the normal operation of vessels from the obligation to obtain an NPDES the obligation to obtain an NPDES permitpermit

•First issued in May 1973 & largely unchanged First issued in May 1973 & largely unchanged since thensince then

•Never previously challenged Never previously challenged

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PERMIT EXCLUSIONS [Cont]PERMIT EXCLUSIONS [Cont]

•STATUTORYSTATUTORY exclusions exclusions – Stated in the CWA itself and thus unaffected Stated in the CWA itself and thus unaffected

by lawsuit by lawsuit

• Vessels operating beyond 3 mile limit Vessels operating beyond 3 mile limit [CWA [CWA § 502(12)(B)]§ 502(12)(B)]

• Sewage from vessels or discharges Sewage from vessels or discharges incidental to the normal operation of incidental to the normal operation of vessels of the Armed Forces within the vessels of the Armed Forces within the meaning of § 312 [CWA § 502(6)(A)]meaning of § 312 [CWA § 502(6)(A)]

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COURT DECISIONCOURT DECISIONFor more info visitFor more info visit

http://www.epa.gov/owow/invasive_species/ballast_water.htmlhttp://www.epa.gov/owow/invasive_species/ballast_water.html

• Rulemaking petition and denialRulemaking petition and denial– Concerns focused on ballast waterConcerns focused on ballast water

• Litigation & outcome in U.S. District CourtLitigation & outcome in U.S. District Court– March 2005March 2005: Ruling that the : Ruling that the regulation (40 CFR regulation (40 CFR

122.3(a)) excluding discharges incidental to the 122.3(a)) excluding discharges incidental to the normal operation of a vessel from NPDES normal operation of a vessel from NPDES permitting exceeded the Agency’s authority under permitting exceeded the Agency’s authority under the CWAthe CWA

– Sept 2006Sept 2006: Final order vacating (repealing) the : Final order vacating (repealing) the regulation in its entirety as of September 30, 2008 regulation in its entirety as of September 30, 2008

• Current statusCurrent status– Nov 2006Nov 2006: Gov’t files notice of appeal with 9: Gov’t files notice of appeal with 9thth

CircuitCircuit

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IMPLICATIONSIMPLICATIONS• Not just limited to those larger vessels that Not just limited to those larger vessels that

would be equipped with ballast tankswould be equipped with ballast tanks

• Not just limited to ballast water discharges Not just limited to ballast water discharges but includes other operational dischargesbut includes other operational discharges– But does NOT affect exemptions specifically But does NOT affect exemptions specifically

contained in CWA itself (see earlier slide)contained in CWA itself (see earlier slide)

• As of Sept 30, 2008, operational discharges As of Sept 30, 2008, operational discharges that had been excluded from NPDES that had been excluded from NPDES permitting by 40 CFR 122.3(a) become permitting by 40 CFR 122.3(a) become unlawful unless authorized by a permitunlawful unless authorized by a permit

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QUESTIONS TO CONSIDERQUESTIONS TO CONSIDER• How define and categorize the universe of How define and categorize the universe of

vessels?vessels?

• How define and categorize operational How define and categorize operational discharges and feasible control methods?discharges and feasible control methods?

• How determine permit limits using BPJ How determine permit limits using BPJ factors?factors?– Age of equipment and facilities involvedAge of equipment and facilities involved– Process employed;Process employed;– Engineering aspects of various types of control Engineering aspects of various types of control

techniques;techniques;– Process changes;Process changes;– Cost of achieving effluent reduction; andCost of achieving effluent reduction; and– Non-water quality environmental impact (including Non-water quality environmental impact (including

energy requirements)energy requirements)

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Questions [Cont]Questions [Cont]

• How address State WQ standards that vary How address State WQ standards that vary reach-by-reach or State to State?reach-by-reach or State to State?

• How integrate with any applicable How integrate with any applicable international or domestic requirements international or domestic requirements under statutes besides CWA?under statutes besides CWA?

• How issue final permits by court’s How issue final permits by court’s September 30, 2008 vacatur date?September 30, 2008 vacatur date?