More than a year and a half ago, Holland & Knight wrote about how the U.S. Environmental Protection Agency (EPA) promised new Vessel Incidental Discharge National Standards of Performance following adoption of the Vessel Incidental Discharge Act of 2018 (VIDA). Conscientious mariners would have looked to how the new marine pollution control devices and regulations and heightened enforcement would impact their operations. However, to date, the proposed rule has not been finalized. Notably, EPA's proposed rule was first published in the Federal Register on Oct. 26, 2020, comments closed on Nov. 25, 2020, and a rule has yet to be finalized. On Jan. 19, 2023, EPA announced an intent to publish a Supplemental Notice to the proposed rule in fall 2023 in order to provide clarification on it and sign the final rule in fall 2024.

Environmental organizations, including the Center for Biological Diversity and Friends of the Earth, took immediate action, bringing a Complaint for Declaratory Judgement and Injunctive Relief (Complaint) in the U.S. District Court for the Northern District of California on Feb. 6, 2023 (Civil Case No. 3:23-cv00535-DMR). The Complaint alleges that the Clean Water Act, as amended by VIDA, required EPA to establish standards for ballast water and other incidental discharges by Dec. 4, 2020. Having failed to establish these standards, the Complaint alleges that EPA failed to perform a statutory duty in violation of the Clean Water Act. The relief sought is a declaration that the failure to finalize the federal performance standards for vessel discharges is a violation of the Clean Water Act and that EPA must promulgate final federal performance standards for vessel incidental discharges within 60 days after the court's entry of judgment.

The efforts of these organizations to push EPA into action and finally publish the long-awaited regulations have met with recent success. On Sept. 8, 2023, EPA posted a Proposed Consent Decree (Decree) between the parties, which, if accepted, would obligate EPA to take final action by Sept. 23, 2024. Additionally, the Decree would require EPA to 1) provide the plaintiffs a copy of the final action within five business days of signature and 2) 90 days after the date of the Decree's entry by the court, and every 90 days thereafter until the final action is taken, EPA would be required to file with the court on its progress on the rulemaking.

Though the Decree makes allowances for delay such as force majeure and situations that would permit extension or delay, it is a promising sign that EPA will be held accountable for its obligations to promulgate marine pollution standards that are now years overdue. Interested stakeholders have until Oct. 10, 2023, to comment on the Decree.