Mid-terms could affect EPA’s overdue VGP

Paul Gunton
Paul Gunton
ShipInsight

05 November 2018


Last month’s announcement by the US Environmental Protection Agency (EPA) that it was extending the expiry date of its Vessel General Permit (VGP) beyond its 18 December expiry date came as no surprise to me.

One reason for that – as you’ll see below – is because I believe that Tuesday’s US mid-term elections could have a bearing on when and whether the next VGP will come into effect.

The VGP covers discharges incidental to normal vessel operations in US waters and the current scheme – the second – came into effect on 19 December 2013 for a period of five years. I have been following its progress for the past three of those years and none of the dates for when its replacement will be published that I have seen reported elsewhere or have been given to me by the EPA have come to anything. As a result, I have little faith that the EPA will meet its latest vague “target timeframe of permit proposal in spring 2019.”

My colleague Malcolm Latarche wrote about this delay on 3 October. His report said that the “EPA leadership has also advised that a policy letter will be issued in the very near future.” Was that a reference to the advice that Malcolm mentioned in a news piece on 12 October or is there something else yet to come? I have emailed the EPA to find out.

I’ll first explore how vague it is. What does ‘spring’ mean? In the northern hemisphere, that covers the three months between 21 March and 21 June. And that is just to deliver a ‘proposal’. Will that amount to a ‘draft’ that is intended to be one step away from the final text or just a rough outline of what the EPA has in mind?

I hope it will be a proper draft that can be followed by a period of public consultation to wrap up the process. During a webinar in 2016, the EPA said that this consultation will be open for 60-75 days so – depending on when in ‘spring’ the proposal or draft is published and on the length of the consultation – it will be sometime between 20 May and 4 September before the consultation ends and the EPA can begin to review its draft against that feedback.

I don’t know how long it will take after that to bring the final version into force but I would guess that we are looking at early June 2019 at the earliest, perhaps as late as the end of September. That’s what I mean by ‘vague’.

I have been following this because of its implications for ballast water management, but it has much wider relevance than that, and I have exchanged emails from time to time with Jack Faulk, team leader of the EPA’s Water Permits Division.

He has always responded to my queries as fully as he can. For example, in April – long before I joined ShipInsight – I asked him about that 2016 webinar, which included a prediction that EPA planned to publish a draft VGP by autumn 2017 but that it might slip to late 2017. “Those estimates … did not come true,” he said frankly and warned that a draft would not be ready before July. He was right there.

As for the comment period, he told me his team had been informally canvassing comments from the industry so, with luck, when it is published it might not need the full 60-75 days of consultation before its final revisions.

A project manager in any commercial enterprise who was as unsure about vital deadlines on a five-year project as the EPA seems to be would soon be out of a job. But Jack is not out of a job, so the timetable is clearly not under his control.

So why has there been this extraordinary delay? There is an excellent article by US law firm Blank Rome on the JD Supra legal website that provides some background on the origins of the VGP and speculates on that point.

It might be because the Trump administration has not prioritised environmental issues, it suggests, or it might be because the Vessel Incidental Discharge Act (VIDA) is waiting in the wings. “If VIDA is in fact enacted, it could affect the new VGP, though the new VGP would stay in effect until VIDA was implemented,” it explains.

Its argument seems to be that the EPA would be reluctant to devote time and money to a project that might have to be re-worked soon after it came into effect because of VIDA. And VIDA may be enacted “at some point after the midterm elections,” it suggests, which take place on Tuesday (6 November).

I am not going to discuss VIDA’s pros and cons – that can be a topic for another day – but I have a theory that the EPA has not yet started serious work on the next VGP. First, because if VIDA is enacted, it would make sense to extend the current VGP until VIDA’s implications can be taken into account. That gives little incentive to work on it until those become clear.

Second, because the EPA’s long-term direction is not known. Since the resignation of its administrator Scott Pruitt in July, his deputy, Andrew Wheeler, has been acting administrator and has said he is not interested in leading the agency permanently.

In the meantime, he “shares Mr Pruitt’s zeal to undo environmental regulations,” according to The New York Times, and, assuming that whoever President Trump appoints to follow him is equally anti-environment, I believe there will be implications for the VGP and other shipping environmental topics whether VIDA comes into force or not.

When EPA will get a new administrator, I don’t know – any more than the EPA knows when it will finalise the next VGP.