The Industry The Industry Perspective on Perspective on Ballast Water Ballast Water ManagementManagementASTM Seminar on Environmental ASTM Seminar on Environmental

Requirements for Efficient Maritime Requirements for Efficient Maritime Operations and Effective Environmental Operations and Effective Environmental

StewardshipStewardship

Kathy MetcalfKathy Metcalf

December 9, 2009December 9, 2009

Ballast Water ManagementBallast Water Management

Balance of Powers gone wrong!Balance of Powers gone wrong! Legislative, judicial and executive branchLegislative, judicial and executive branch BW Legislation?BW Legislation? Court case – NW Environmental Advocates Court case – NW Environmental Advocates

vs. EPA (Industry intervened)vs. EPA (Industry intervened) EPA and USCG regulatory programsEPA and USCG regulatory programs State programsState programs

INDUSTRY BASED INDUSTRY BASED ASSUMPTIONSASSUMPTIONS

Need for internationally accepted mandatory Need for internationally accepted mandatory BW management programBW management program

Consistency between international and Consistency between international and domestic programsdomestic programs

Solutions must provide real benefit to the Solutions must provide real benefit to the environmentenvironment

We are experts in vessel operations, not We are experts in vessel operations, not marine/invasion biologymarine/invasion biology

INDUSTRY POSITIONSINDUSTRY POSITIONS

Mandatory national BW management Mandatory national BW management programprogram

Exchange as technology benchmark but no Exchange as technology benchmark but no longer appropriate focus for future control longer appropriate focus for future control strategiesstrategies

Promote ID and testing of new technologiesPromote ID and testing of new technologies Oppose dual regulatory structures e.g. CWA Oppose dual regulatory structures e.g. CWA

NPDES NPDES and and ballast water statuteballast water statute

LAY OF THE LEGAL LAY OF THE LEGAL LANDSCAPELANDSCAPE

Finalized IMO ConventionFinalized IMO Convention Development of IMO GuidelinesDevelopment of IMO Guidelines US Legislative Initiatives (Fed/State)US Legislative Initiatives (Fed/State) Regulatory Initiatives (Fed/State/Local)Regulatory Initiatives (Fed/State/Local) Multitude of technology developers all Multitude of technology developers all

assuring their “silver bullet”assuring their “silver bullet”

IMO CONVENTION VS. US IMO CONVENTION VS. US LEGISLATIONLEGISLATION

IMO entry into force????IMO entry into force???? Multiple US legislative efforts Multiple US legislative efforts US legislation enactment expected ???US legislation enactment expected ??? Industry position to maximize alignment of Industry position to maximize alignment of

national and IMO requirementsnational and IMO requirements 100% alignment unlikely (performance std.)100% alignment unlikely (performance std.)

DEVIL IS IN THE DETAILS (IMO DEVIL IS IN THE DETAILS (IMO Guidelines)Guidelines)

Sediment and BW Reception FacilitiesSediment and BW Reception Facilities SamplingSampling Equivalent Compliance for pleasure/SAR vesselsEquivalent Compliance for pleasure/SAR vessels BW Management PlansBW Management Plans BW ExchangeBW Exchange Additional measures and risk assessment protocolsAdditional measures and risk assessment protocols Approval of ballast water management systemsApproval of ballast water management systems Procedures for approval of “active” substancesProcedures for approval of “active” substances Prototype BW treatment technologiesPrototype BW treatment technologies

DEVIL IS IN THE DETAILS (US DEVIL IS IN THE DETAILS (US Legislative and Regulatory)Legislative and Regulatory)

General legislation with details left to General legislation with details left to regulatory programs or…regulatory programs or…

Specific legislation with less detail left to Specific legislation with less detail left to regulatory programs?regulatory programs?

IMO requirements reflected in total…in IMO requirements reflected in total…in part…or not at all?part…or not at all?

Intentional or inadvertent loopholes with Intentional or inadvertent loopholes with partial adoption of IMO requirementspartial adoption of IMO requirements

PERFORMANCE BASED PERFORMANCE BASED STANDARDSTANDARD

Mandatory requirements “do able” by all Mandatory requirements “do able” by all vessels regardless of location, vessel type vessels regardless of location, vessel type or weather/sea conditionsor weather/sea conditions

New technology verified by standardized New technology verified by standardized test protocolstest protocols

Timed phase-in differentiating between new Timed phase-in differentiating between new and existing shipsand existing ships

ALTERNATIVE BW ALTERNATIVE BW MANAGEMENT TECHNOLOGY MANAGEMENT TECHNOLOGY

PROGRAMPROGRAM

Must be transparent processMust be transparent process Specified process for proposal Specified process for proposal

submittal, evaluation and approvalsubmittal, evaluation and approval Specified format and contentSpecified format and content Use of technology verification protocolsUse of technology verification protocols ““Temporary” approval for testing Temporary” approval for testing

program with final review and approval program with final review and approval for successful test programsfor successful test programs

FEDERAL PREEMPTION OF FEDERAL PREEMPTION OF STATE REQUIREMENTSSTATE REQUIREMENTS

NISA 96 recognizes need for national and NISA 96 recognizes need for national and international consistencyinternational consistency

Equally applicable to federal and state Equally applicable to federal and state programsprograms

Must have strong legal and policy Must have strong legal and policy justification to gain Congressional supportjustification to gain Congressional support

Current evidence of “patchwork quilt” in Current evidence of “patchwork quilt” in varying state and national requirements varying state and national requirements (NPDES Vessel General Permit – Ch. 6)(NPDES Vessel General Permit – Ch. 6)

NEED FOR EXCLUSION FROM NEED FOR EXCLUSION FROM CLEAN WATER ACT PROVISIONSCLEAN WATER ACT PROVISIONS

Text to make national legislation the Text to make national legislation the EXCLUSIVE statute for managing ballast EXCLUSIVE statute for managing ballast waterwater

Otherwise, provisions of CWA permitting Otherwise, provisions of CWA permitting program (NPDES) would apply as wellprogram (NPDES) would apply as well

TECHNOLOGY DEVELOPMENT TECHNOLOGY DEVELOPMENT CONSIDERATIONSCONSIDERATIONS

Maximum operational flow rate (vessel)Maximum operational flow rate (vessel) Maximum operational flow rate Maximum operational flow rate

(application and/or residence time)(application and/or residence time) Adaptability to shipboard environmentAdaptability to shipboard environment FootprintFootprint Installation and maintenance feasibilityInstallation and maintenance feasibility Back-up capability and redundancyBack-up capability and redundancy Sampling and monitoring needsSampling and monitoring needs

CHALLENGESCHALLENGES

Standardized test protocolsStandardized test protocols Finalized IMO guidelines and domestic Finalized IMO guidelines and domestic

requirementsrequirements Ramp-up from lab to pilot to shipboardRamp-up from lab to pilot to shipboard Conversion of existing performance data (% Conversion of existing performance data (%

removal to concentration based format)removal to concentration based format) Sufficient funding (public and private)Sufficient funding (public and private) ACKNOWLEDGEMENT THAT THERE IS NO ACKNOWLEDGEMENT THAT THERE IS NO

SILVER BULLET!SILVER BULLET!

PENDING LEGISLATION PENDING LEGISLATION (FEDERAL)(FEDERAL)

None as yet in new CongressNone as yet in new Congress Expect re-introductions of ballast water Expect re-introductions of ballast water

legislation in House and Senate?legislation in House and Senate? Senate players – Levin, Inouye, BoxerSenate players – Levin, Inouye, Boxer House players – Oberstar, Ehlers, House players – Oberstar, Ehlers,

LoBiondoLoBiondo

STATE ACTIONSSTATE ACTIONS

California (zero discharge by 2020)California (zero discharge by 2020) Provides perfect example of why a national Provides perfect example of why a national

program is necessary e.g. varied program is necessary e.g. varied requirementsrequirements

Wide variety of state requirements in Wide variety of state requirements in NPDES Vessel General Permit (Ch. 6)NPDES Vessel General Permit (Ch. 6)

Expect more in next round of VGP reviewExpect more in next round of VGP review

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

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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)

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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)

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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.)

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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

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Kathy MetcalfDirector, Maritime AffairsChamber of Shipping of America1730 M Street, NWSuite 407Washington, DC 20036Kmetcalf@knowships.org

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