The Industry Perspective on Ballast Water Management

1. The Industry Perspective on Ballast Water Management ASTM Seminar on Environmental Requirements for Efficient Maritime Operations and Effective Environmental Stewardship Kathy Metcalf December 9, 2009

2. Ballast Water Management • Balance of Powers gone wrong! • Legislative, judicial and executive branch • BW Legislation? • Court case – NW Environmental Advocates vs. EPA (Industry intervened) • EPA and USCG regulatory programs • State programs

3. INDUSTRY BASED ASSUMPTIONS • Need for internationally accepted mandatory BW management program • Consistency between international and domestic programs • Solutions must provide real benefit to the environment • We are experts in vessel operations, not marine/invasion biology

4. INDUSTRY POSITIONS • Mandatory national BW management program • Exchange as technology benchmark but no longer appropriate focus for future control strategies • Promote ID and testing of new technologies • Oppose dual regulatory structures e.g. CWA NPDES and ballast water statute

5. LAY OF THE LEGAL LANDSCAPE • Finalized IMO Convention • Development of IMO Guidelines • US Legislative Initiatives (Fed/State) • Regulatory Initiatives (Fed/State/Local) • Multitude of technology developers all assuring their “silver bullet”

6. IMO CONVENTION VS. US LEGISLATION • IMO entry into force???? • Multiple US legislative efforts • US legislation enactment expected ??? • Industry position to maximize alignment of national and IMO requirements • 100% alignment unlikely (performance std.)

7. DEVIL IS IN THE DETAILS (IMO Guidelines) • Sediment and BW Reception Facilities • Sampling • Equivalent Compliance for pleasure/SAR vessels • BW Management Plans • BW Exchange • Additional measures and risk assessment protocols • Approval of ballast water management systems • Procedures for approval of “active” substances • Prototype BW treatment technologies

8. DEVIL IS IN THE DETAILS (US Legislative and Regulatory) • General legislation with details left to regulatory programs or… • Specific legislation with less detail left to regulatory programs? • IMO requirements reflected in total…in part…or not at all? • Intentional or inadvertent loopholes with partial adoption of IMO requirements

9. PERFORMANCE BASED STANDARD • Mandatory requirements “do able” by all vessels regardless of location, vessel type or weather/sea conditions • New technology verified by standardized test protocols • Timed phase-in differentiating between new and existing ships

10. ALTERNATIVE BW MANAGEMENT TECHNOLOGY PROGRAM • Must be transparent process • Specified process for proposal submittal, evaluation and approval • Specified format and content • Use of technology verification protocols • “Temporary” approval for testing program with final review and approval for successful test programs

11. FEDERAL PREEMPTION OF STATE REQUIREMENTS • NISA 96 recognizes need for national and international consistency • Equally applicable to federal and state programs • Must have strong legal and policy justification to gain Congressional support • Current evidence of “patchwork quilt” in varying state and national requirements (NPDES Vessel General Permit – Ch. 6)

12. NEED FOR EXCLUSION FROM CLEAN WATER ACT PROVISIONS • Text to make national legislation the EXCLUSIVE statute for managing ballast water • Otherwise, provisions of CWA permitting program (NPDES) would apply as well

13. TECHNOLOGY DEVELOPMENT CONSIDERATIONS • Maximum operational flow rate (vessel) • Maximum operational flow rate (application and/or residence time) • Adaptability to shipboard environment • Footprint • Installation and maintenance feasibility • Back-up capability and redundancy • Sampling and monitoring needs

14. CHALLENGES • Standardized test protocols • Finalized IMO guidelines and domestic requirements • Ramp-up from lab to pilot to shipboard • Conversion of existing performance data (% removal to concentration based format) • Sufficient funding (public and private) • ACKNOWLEDGEMENT THAT THERE IS NO SILVER BULLET!

15. PENDING LEGISLATION (FEDERAL) • None as yet in new Congress • Expect re-introductions of ballast water legislation in House and Senate? • Senate players – Levin, Inouye, Boxer • House players – Oberstar, Ehlers, LoBiondo

16. STATE ACTIONS • California (zero discharge by 2020) • Provides perfect example of why a national program is necessary e.g. varied requirements • Wide variety of state requirements in NPDES Vessel General Permit (Ch. 6) • Expect more in next round of VGP review

17. COURT DECISIONFor more info visithttp://www.epa.gov/owow/invasive_species/ballast_water.html • Rulemaking petition • Dec. 2003: Lawsuit filed by Northwest Environmental Advocates and others challenging petition denial • Litigation & outcome in U.S. District Court • March 2005: Ruling that the regulation (40 CFR 122.3(a)) excluding discharges incidental to the normal operation of a vessel from NPDES permitting exceeded the Agency’s authority under the CWA • Sept 2006: Final order vacating (revoking) the regulatory exclusion as of September 30, 2008, and potentially affects all incidental discharges of vessels • July 2008: 9th Circuit upholds lower court decision • August/December 2008: US District Court grants extension of application to Feb 6, 2009 • Current status – case filed in DC Circuit Court of Appeals

18. IMPLICATIONS • All vessels with discharges of pollutants over 79’ subject to permit on 2/6/2009 (60,000+) • Congressional exemption for recreational boaters and fishing vessels • Coverage automatic on February 6, 2009; vessels allowed 6-9 months to file NOI • Not just limited to ballast water discharges but includes other operational discharges • But does NOT affect exemptions specifically contained in CWA itself (see earlier slide)

19. QUESTIONS [Cont] • How to address State WQ standards that vary reach-by-reach or State to State? • How to integrate with any applicable international or domestic requirements under statutes besides CWA? (e.g., Coastal Zone Management Act which requires State certification as to consistency with coastal zone management plans)

20. EPA Approach to Discharge Management • Incorporate current legal requirements • Create Best Management Practices (BMPs) reflecting current practices • Some “add ons” with biggest impacts on vessels not going outside 3 nm and those that do but remain inside for extended period (anchorage, repairs, etc.)

21. Problems yet to be resolved • Use of ambiguous terms (minimize, where practical, to the extent possible) • Insufficient science and fleet data to justify discharge restrictions (no environmental impacts analysis) • Lack of temporal and spatial distribution data • State 401 certification process and varying state requirements

22. CONTACT INFORMATION Kathy Metcalf Director, Maritime Affairs Chamber of Shipping of America 1730 M Street, NW Suite 407 Washington, DC 20036 Kmetcalf@knowships.org