June 16, 2009 (New York, NY) In 1977 the Congress enacted the Clean Water Act and for over 30 years the EPA regulations excluded vessels from the system of permits required under the National Pollution Discharge Elimination System (NPDES). Lawsuits by environmental interests challenged this exclusion and as of December 19, 2008 this exemption has been eliminated. All vessels with discharges of pollutants incidental to their normal operation within the U.S. three-mile territorial sea or inland waters need permit coverage under the Vessel General Permit.
The types of discharges are not limited to ballast water but incorporate approximately 28 discharge types. These discharge types include deck washdown and runoff, bilge water, antifouling hull coating leachate, aqueous film-forming foam, boiler blowdown, cathodic protection, chain locker effluent, fire main systems and various other graywater and effluents.
The permit is required for all vessels with the exception of recreational vessels. Fishing vessels and commercial vessels less than 79 feet in length have been granted a two-year moratorium (until July 10, 2010). Please note that the moratorium does not remove all Clean Water Act liability from the recreational, fishing and small commercial vessels.
The permit automatically applies to vessels now, but the permittee must also file a Notice of Intent if the vessel is greater than 300 gross tons or has a ballast water capacity of at least 8 cubic meters (2113 gallons). The EPA has activated its electronic Notice of Intent web site on which vessel operators may begin to file the NOI. The site can be found at http://cfpub.epa.gov/npdes/vessels/enoi.cfm. All subject vessels are required to file their Notice of Intent no later than September 19, 2009.
Individual states and Native American Tribes can establish additional water quality standards and it is important to note that standards may vary from state to state. Exceeding an effluent limit is a permit violation and the violation will require the permittee to take corrective action. For minor changes the corrective action must be taken within two weeks. Major changes requiring new parts are required within three months and major renovations are required before re-launching from the next dry-docking.
There are requirements for routine vessel inspections, broader annual vessel inspections, record keeping and reporting.
The law allows for civil, administrative and criminal fines and penalties. In addition, other criminal enforcement is allowed.
WQIS has now reviewed the matter and concluded that insurance coverage can play a significant role in protecting vessel operators from portions of this new liability.
The new WQIS Vessel General Permit Policy 2009 provides:
1. Indemnity for certain civil, administrative and criminal penalties that may be assessed for violation of the Vessel General Permit for insured vessels;
2. Reimbursement for certain corrective action required under the permit; and
3. Investigation and defense of insured liabilities. In general the policy excludes:
1. Corrective actions covered by any other insurance policy.
2. Corrective actions arising from wear, tear and gradual deterioration.
3. Knowing violations and false statements.
4. Failure to file a Notice of Intent.
5. Aquatic Invasive Species.
6. Failure to establish self-monitoring, inspection, record keeping or reporting systems.
7. Failure to comply with education and training requirements for maintenance, monitoring and reporting. The policy will provide a limit for each violation and will be subject to an annual aggregate limit.
This policy will be a standalone policy and it will be a requirement of WQIS that the vessels be insured by WQIS under the WQIS Policy Form 2007 prior to binding the Vessel General Permit Policy 2009 unless specifically negotiated by the broker and agreed to by WQIS. Please contact your underwriter for details.
WQIS is the largest U.S.-based underwriter of pollution liability insurance for marine vessels. With over 38 years in the industry, no one has more marine pollution insurance and spill response expertise, or offers more innovative coverage to the marine community. WQIS is dedicated to providing the broadest coverage and creating the most responsive organization to serve the needs of their clients.