VSRA News

OSHA QuickTakes - February 2009

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VSRA Addresses Navy Funding Shortfall

In early January, VSRA ship repairers began to experience changes in ship repair jobs that were deternined to result from a lack of adequate funding.  In one instance, a CNO availability work package was "de-scoped" by 35% and what had been scheduled maintenance wasdeferred to a later date.  Working closely with MARMC and Fleet Forces Command, VSRA was able to discover that there was a funding shortfall for FY09 of about $417 million in surface ship maintenance for the Navy.  The Hampton Roads portion of that shorfall was estimated to be about $135 million. 

With the new administration in the midst of preparing their Stimulation Bill, the VSRA Board formed a Stimulus Package Working Group to explore ways to influence provisions of the bill to help the Navy fill the shortfall.  With the President's stated goal of creating or preserving 3.5 million jobs, it was deemed appropriate to notify our elected officials in Washington of the shortfall and how it could affect industry jobs if not corrected.  The industry was surprised when on February 3rd, Commander Naval Surface Forces, Atlantic issued a directive to MARMC and SERMC to "immediately cease any definitization or award of any contract for any remaining FY09 CNO avails unless otherwise directed." 

On February 5th, a Funding White Paper was prepared and sent to our Hampton Roads delegation in Washington.  Upon receipt, Senator Webb's office immediately took the lead in asking for a briefing from the Navy on their funding as it related to surface ship maintenance.  That briefing request resulted in the Navy ordering a complete review of surface ship funding for the Navy.   That review is ongoing, as we understand from the navy.

When the Stimulus Bill was passed by Congress and sent to the President for signature with no provisions for surface ship maintenance funding, the decision was made to prepare and distribute a Funding Press Release to local newspapers.

It should be emphasized that the actions of the Virginia Ship Repair Association have been taken with full transparency with the Navy.  Our industry is a partner and integral part of the Navy surface ship maintenance industrial base.  Our goal is to help secure the funding to maintain our Navy's national defense assets for our National security.  To enable us to maintain the required industrial base fo accomplish this mission, we must retain our highly skilled workforce.

Navy Budget Woes Threaten Local Shipyard Jobs

Comments on EPA's Vessel General Permit (VGP)

The following summary was compiled by the Shipbuilders Council of America.  This is an excellent overview of the VGP provisions.

Starting on February 6, 2009, vessels operating in a capacity as a means of transportation, with certain exceptions, are prohibited from discharging any pollutant into waters of the United States unless authorized to do so in accordance with this new general permit or by an individual permit. 

SCA’s Comments and Summary of EPA Responses - How will this affect you?
In comments submitted to EPA in August, SCA sought clarifications regarding VGP applicability to floating drydocks, vessels undergoing drydock repairs, and new construction. 

--Discharges from vessels during the drydock period are not covered by the new VGP. Issues of who must obtain permits for such discharges are therefore also outside the scope of the VGP.

--Discharges resulting from construction activities are not covered by the VGP as they are incidental to vessel construction, not vessel operation.

--Regarding floating drydocks…
·       With respect to ballast water or other incidental, non-industrial, discharges from a floating drydock that is moving between locations, such discharges are within the scope of the VGP as they would be incidental to the normal operation of a vessel operating in a capacity as a means of transportation.

1       With respect to periods when the drydock is transitioning between its status as a means of transportation and becoming, in effect, a ship maintenance and repair facility, such as when discharging ballast water to accept into, or deliver vessels from, the drydock, the VGP would similarly cover its incidental, non-industrial, discharges.

2       Once immobile and operating in an industrial capacity as a ship maintenance or repair facility, the drydock ceases to operate in a capacity as a means of transportation and thus its discharges are not covered by the VGP. NOTE: that similar logic would apply to other types of vessels that transition between transportation and non transportation modes of operation (for example, mobile drilling units or construction barges which cease moving to carry out their industrial, non-transportation functions).

See EPA’s 'Response to Comments' document on public docket and SCA's full comment at www.shipbuilders.org.

Other Applicability and Exemptions
Commercial fishing vessels of any size and non-recreational vessels less than 79 feet in length are exempt from coverage under the VGP. This was due to legislative action late in the 110^th Congress.

Below summary from K&L Gates…For addition information see http://cfpub.epa.gov/npdes/home.cfm?program_id=350 (link to VGP, Fact Sheet, and Supporting DOCs) or log into SCA’s members only site at www.shipbuilders.org.
Why is this permit program so different?
This permit program is different from most others that the maritime industry has previously faced because:

• It covers discharges from vessels beyond just ballast water – it includes 25 other incidental discharges never before regulated;
• It is administered and enforced by the EPA, not  the United States Coast Guard, and contains extensive administrative, civil and criminal sanctioning authority that is often used in parallel;
• It gives the EPA significant new powers over the maritime industry including the power to inspect and vessels, impose conditions beyond those in the VGP, require production of information, records and the performance of testing and other evaluations;
• Many, if not all, of the inspection records required under this program, and other materials documenting compliance with it, will be accessible to the public;
• Noncompliance must be reported to the EPA and, in many cases, publicly disclosed, and failure to do so could be a crime;
• The permit includes widely different conditions imposed by states, and that only apply in the waters of particular States;
• Ultimately, this program will be adopted in many States, giving them additional enforcement authority and the ability to adopt different and more restrictive standards;
• It may be enforced by private citizens and advocacy groups under the citizen suit provision, which is one of the most commonly used environmental laws.

What discharges are covered?
In the final VGP, EPA has identified 26 discharges incidental to the normal operation of commercial vessels and recreational vessels greater than 79 feet (24.08 meters) in length that are covered by the VGP:

1. Deck washdown and runoff and above water line hull cleaning
2. Bilge water
3. Ballast water
4. Anti-fouling leachate from anti-fouling hull coatings
5. Aqueous film forming foam
6. Boiler/economizer blowdown
7. Cathodic protection
8. Chain locker effluent
9. Controllable pitch propeller hydraulic fluid and thruster hydraulic fluid and other oil sea interfaces including discharges from paddle wheel propulsion, stern tubes, thruster bearings, stabilizers, rudder bearings, azimuth thrusters, and propulsion pod lubrication
10. Distillation and reverse osmosis brine
11. Elevator pit effluent
12. Firemain systems
13. Freshwater layup
14. Gas turbine wash water
15. Graywater
16. Motor gasoline and compensating discharge
17. Non-oily machinery wastewater
18. Refrigeration and air condensate discharge
19. Seawater cooling overboard discharge 
20. Seawater piping biofouling prevention
21. Small boat engine wet exhaust
22. Sonar dome discharge
23. Underwater ship husbandry
24. Welldeck discharges
25. Graywater mixed with sewage from vessels
26. Exhaust gas scrubber wash water discharge

What discharges are not covered by the VGP?
EPA has identified several discharges that are not covered by the VGP: (1) discharges not subject to the former NPDES permit exclusion, including vessels being operated in a capacity other than as a means of transportation (e.g., energy or mining facilities), (2) sewage from vessels, (3) used or spent oil, (4) rubbish, trash, garbage or other material discarded overboard, (5) photo processing waste, (6) effluent from dry cleaning operations, (7) discharges of medical waste and related materials, (8) discharges of noxious liquid substances, (9) tetrachloroethylene (perchloroethylene) degreasers, and (10) discharges currently or previously covered by another permit.  See Final VGP Fact Sheet at 28-30. Also, the permit materials explain that discharges incidental to the normal operation of a vessel are discharges that occur when a vessel is operated according to good marine practice or that result from the operation of properly and routinely maintained vessel equipment.  EPA has stated that discharges that are not in line with good marine practice are not considered incidental to the normal operation of a vessel and, thus, not covered by the VGP.  See Final VGP Fact Sheet at 22.

How do you get a VGP?
Initial authorization under the VGP is automatic.  That is, as of December 19, 2008, all covered vessels are authorized to discharge pursuant to the VGP.  If your vessel is greater than or equal to 300 gross tons or the vessel has the capacity to hold or discharge more than 8 cubic meters (2113 gallons) of ballast water, you must, in accordance with the deadlines in the table below and beginning on June 19, 2009, submit a “Notice of Intent,” or “NOI,” in order to maintain or obtain coverage under the VGP.

CATEGORY        NOI DEADLINE    DISCHARGE AUTHORIZATION DATE   
Vessels delivered to owner operator on or before September 19, 2009     No later than September 19, 2009        Authorization granted until September 19, 2009.  If EPA receives an NOI on or before September 19, 2009, uninterrupted coverage continues.     
New Owner/Operator of Vessel
– transfer of ownership and/oroperation of a vessel whosedischarge is previously authorized under this permit   By date of transfer of ownership and/or operation

        Date of transfer or date EPA receives NOI, whichever is later
       
New vessels delivered to owneror operator after September 19, 2009      30 days prior to discharge into waters subject to this permit   30 days after complete NOI received by EPA     
Existing vessels delivered toowner or operator after September 19, 2009 that were not previously authorized under this permit   30 days prior to discharge intowaters subject to this permit

        30 days after complete NOI received by EPA
       
 
NOI submissions will be publicly available information along with reports required under the permit, and the agency can use this information to impose additional vessel specific requirements.

What must be done to comply with the permit?
Each vessel’s compliance with the VGP can only be determined on a case-by-case basis. Generally, EPA has set standards for how each of the 26 incidental discharge streams must be managed.  In some cases the pollutant must be removed from the discharge before it leaves the vessel.  In other cases, the discharge has to be completely or substantially prevented.  Adherence to those standards will constitute compliance with the VGP.

Most of the standards in the VGP that must be met are called “Best Management Practices” or “BMPs.”   The BMPs are schedules of activities, prohibitions of practices, maintenance procedures, and other management practices that are designed to prevent or reduce the pollution of “waters of the United States.”   However, numeric effluent limits have been established in the VGP for graywater and pool and spa discharges from cruise ships, oily discharges, including oily mixtures, and residual biocide limits from vessels using experimental ballast water treatment systems.  The permit also requires that discharges must be controlled as necessary to meet applicable water quality standards and that additional controls must be employed where necessary to, for example: (1) be consistent with applicable waste load applications in waters with approved or established Total Maximum Daily Loads; or (2) comply with a State’s or Tribe’s antidegradation policies. 

Some of the BMPs are drafted in non-mandatory language.   For example, the BMPs for deck washdown provide that “cleaners and detergents should not be caustic or only minimally caustic and should be biodegradable.” (Emphasis added.)  The permit states that provisions stating that “EPA recommends” certain actions or that the permittee “should” take certain actions constitute recommendations by the agency.  It is unclear whether failure to follow EPA’s “recommendations” would be looked on unfavorably by the agency in an enforcement context. 

How is compliance with the permit confirmed?
The VGP contains extensive inspection, monitoring, reporting, and recordkeeping obligations (VGP, Part 4) that require each vessel to document its own compliance or noncompliance and to undertake corrective action (VGP, Part 3) when noncompliance is discovered.  Some of these requirements include:

• Routine visual self-inspections;
• Documentation of inspections in logbooks;
• Analytical monitoring and sampling;
• An annual comprehensive inspection;
• If the vessel is dry docked, a dry dock report;
• Records of violations of effluent limits, findings from inspections, and certain maintenance activities; 
• Specialized records for certain discharges;
• An annual noncompliance report; and
• A one-time report and assessment due 30-36 months after issuance of the permit. 

These requirements sometimes differ by vessel type.
What if compliance problems are found?
The VGP requires “corrective action” – action that must be taken to correct problems identified during an inspection or otherwise discovered. (VGP, Part 3.)  The proposed permit sets out several “triggers” for corrective action, such as when BMPs are not actually reducing discharges that contain pollutants.  Once the need for corrective action is triggered, a written corrective action assessment must be prepared.  The proposed permit sets deadlines for taking corrective action.  Any report of corrective action could result in the imposition of administrative, civil, or criminal penalties, as explained below.

What role do States play?
Section 401 of the CWA gives States the opportunity to certify that the VGP will not degrade their waters.   According to EPA, if they decline to certify, the VGP is not effective in their waters. Vessels operating in such States will have to either cease all incidental discharges or leave the State’s waters, since their incidental discharges will be unpermitted, or be exposed to suits not only by the government, but by environmental groups as well.  Many States that have certified the VGP have added conditions that must be met.  It is important that any vessel operator know whether the State waters in which they are operating have conditions attached to their approval of the VGP that must be met.  State certification conditions can be found in Part 6 of the VGP. 

In the near term, States will probably not be enforcing the VGP on behalf of EPA.  Instead, they might develop their own VGP program under applicable state law.  States do have some authority to impose stricter standards than those contained in the VGP.  Ultimately, many States will seek approval from EPA to operate their own program under the CWA. 33 U.S.C. § 1342(b).  These are commonly called “approved state programs.”

MARMC Commanding Officer Addresses VSRA

Norfolk, Virgiia.  January 20, 2009

Following on the heals of President Barack Obama's inaugral address, Captain Scott Mattingly, Commanding Officer of the Mid Atlantic Regional Maintenance Center, addressed members of the Virginia Ship Repair Association at their January luncheon meeting.  The meeting was held at the Norfolk Waterside Sheraton

Captain Mattingly's MARMC Presentation focused on the changes that are being implemented in Navy surface maintenance organizations that are a result of the most recent Base Realignment and Closure (BRAC) decisions.  The details can be found in his presentation.  Of particular note is the transfer of MARMC's line authority from  Commander, Regional Maintenance Centers (RDML Orzalli) to the Commanding Officer, Norfolk Naval Shipyard in Portsmouth.  This change places MARMC in the NAVSEA chain of command, rather than Fleet Forces Command.

Please note that the blank slide in the presentation was filled with a video piece about Naval Surface Forces, which could not be loaded on our website.

Voinovich feels heat on big labor priority

Voinovich voted against allowing a debate on the Employee Free Choice Act last year, and has vowed to do the same when Democrats bring it up in the 111th Congress, perhaps as early as January.

But the Ohio centrist has also emerged as one of the most vulnerable Republicans up for reelection in 2010 and will campaign in a state where union muscle helped to guide Barack Obama to the White House this year and a liberal Democrat over an incumbent GOP senator in 2006.

Sensing a potential swing vote, labor organizers and business groups from the Rust Belt have begun targeting Voinovich with hopes of persuading him one way or the other.

The bill, also known as card-check, passed the House last year but failed to get enough votes for a debate in the Senate. Come January, when Democrats hold at least 57 seats in the upper chamber, Voinovich’s vote could be the difference between labor’s top priority becoming law or withering away.

“If the senator is comfortable with the economy we have now, he should vote the same way he did last year,” said Tim Burga, chief of staff for the Ohio AFL-CIO, which has 1.4 million members. “If he wants a change, then he should reconsider.”

Voinovich has signaled that he won’t budge.
“It’s undemocratic,” Voinovich says of the legislation that would bar employers from insisting on a secret-ballot election if a majority of workers sign cards saying they would like to join a union. “I’ve belonged to unions. I’m probably one of the few people who understand how this works.”

Card-check is likely to be a harbinger for organized labor’s influence on a number of centrist candidates from both parties who are seeking reelection next cycle.

Already, Sen. Arlen Specter, a Pennsylvania Republican who supported moving toward a debate last year, has signaled he will seek some sort of compromise.

Democrats intend to use the card-check legislation as a means to reach middle-class voters in a slumping economy. Democratic Sen. Sherrod Brown, Voinovich’s Ohio colleague who toppled Sen. Mike DeWine (R) in 2006 with considerable help from unions, intends to make that point when the bill comes up for debate.

“The more people that belong to labor unions, the more people there are in the middle class in this country,” Brown said. “That’s been proven by statistics for 50 years.”

The pressure on Voinovich comes as the lawmaker failed to persuade his Republican colleagues to back an auto industry bailout this month that was critical to his home state and also as his electoral support seems to be softening.

After winning his 1998 and 2004 elections with comfortable margins — 56 and 64 percent, respectively — a recent poll shows he is more vulnerable in 2010 if he runs for reelection. A Quinnipiac University survey of 1,468 registered voters, conducted Dec. 4-8, found just 36 percent of respondents supported Voinovich against an unnamed Democrat. The generic Democratic candidate won 35 percent in the poll, with the remaining 29 percent of voters undecided. The poll had a margin of error of plus or minus 2.6 percent.

Voinovich, who worked closely with unions when he was the mayor of Cleveland in the 1980s, shrugs off the pressure, saying his mind is “absolutely” made up.

“To just have a situation where somebody can go out there and get X number of cards and then say, ‘By the way, we’ve got 50-plus-one, now you’re unionized’ — it’s undemocratic,” he said.

Those statements are reassuring to Ohio’s business leaders, who say they are winning the battle for Voinovich’s vote despite the pressure he faces.

“I have not heard any wavering from his office and his position,” said Tony Fiore, director of labor and human resources policy for the Ohio Chamber of Commerce. “And it is important for all of those folks who have been on the right side of this to continue their strong opposition.”

The U.S. Chamber of Commerce is applying pressure at the national level. Chamber Vice President Randel Johnson calls the bill “the top labor issue of the last 50 years” and said if Democrats get the 60 votes needed to proceed to a debate, the bill is all but certain to become law.

Senate Minority Leader Mitch McConnell (R-Ky.) not only said that Republicans would unite against the legislation, but predicted Democrats may peel away from the bill.

“You are likely to have very significant unity among Republicans,” McConnell said. “Also, you’re assuming that Democrats are going to walk in lockstep. I would predict there are going to be a lot of differences among Democrats in both the House and the Senate.”

FINAL RULE - OSHA PPE Clarification