Operators Now Subject to EPA, Coast Guard, and States
On December 18, 2017, a moratorium on Clean Water Act (CWA) permitting requirements for discharges incidental to the normal operation of commercial vessels under 79 feet long expired. (The moratorium did not apply to discharges of ballast water.) This would seem to mean that these vessels—numbering up to 60,000, according to the EPA—must now comply with the Agency’s 2014 small vessel general permit (sVGP). But for vessel owners, this is not as cut-and-dried an obligation as it may seem. In fact, issuing the moratorium has been a regular occurrence in Congress, which has done so three times since 2008. Also, there is now a federal bill that would make the temporary moratorium a permanent exclusion from permitting. Where does this leave owners and operators of small commercial vessels? Must they now comply with the sVGP or be found in violation? Does the EPA have any serious intention of enforcing a rule that members of Congress, including Democrats, find unnecessary to protect water quality?
At present, there are no clear indications from the government about how expiration of the moratorium affects regulatory obligations. The lack of clarity and the consequent compliance complexity are endemic to the regulatory programs affecting vessel owners in the United States. There are multiple federal and state laws and regulations as well as a convention developed by the International Maritime Organization (IMO) that are intended to reduce pollution from commercial vessels of all sizes. Shipping and related industries have long complained that the federal regulations—one set issued by the EPA under the CWA and another issued by the U.S. Coast Guard under the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA) as amended by the National Invasive Species Act of 1996 (NISA)—are unnecessarily costly because they are duplicative, particularly in one critical area: control of aquatic invasive species (AISs) contained in ballast water. Furthermore, states are entitled to attach conditions to EPA general permits, applicable to vessels in the waters of those states. This creates another layer of regulation and more complexity and expense.
Congress is currently endeavoring to simplify the federal and state obligations for vessel owners by passing a single, freestanding statute, the Vessel Incidental Discharge Act ((VIDA); S. 168 and H.R. 1154). Under the VIDA, discharges incidental to the normal operation of vessels would no longer be regulated under the CWA. Additionally, the NANPCA/NISA would be amended to explicitly state that ballast water and discharges incidental to the normal operation of a commercial vessel will be regulated under the VIDA.
The issue of ballast water, the need for unifying federal legislation affecting vessel discharges, and a reconsideration of state authority were all discussed in a recent report by the Congressional Research Service (CRS). The report, Vessel Incidental Discharge Legislation in the 115th Congress: Background and Issues, was written by Laura Gatz, a CRS analyst in environmental policy. Based on that report, we here summarize several of the main statutory and regulatory challenges and how the VIDA would address them.
Coast Guard Rules
Vessels that travel to foreign ports take on ballast water to stabilize the ship after unloading cargo. The ballast water must then be eliminated so that new cargo can be loaded. AISs contained in ballast water have caused the loss of species indigenous to U.S. waters. According to the EPA, AISs are the second greatest threat to biological diversity, ranking just below habitat loss.
Initially, the NANPCA focused on preventing the introduction of AISs into the Great Lakes by managing vessel ballast water discharges. The 1996 NISA created a national ballast water management program. All ships entering U.S. waters after operating outside the exclusive economic zone (EEZ) must conduct midocean ballast exchange, retain their ballast water on board, or use alternative measures approved by the Coast Guard. These national ballast water management practices became mandatory in 2004.
In March 2012, the Coast Guard issued a final rule establishing numeric standards limiting living organisms in ballast water discharged into U.S. waters. Vessel owners and operators can select from four compliance options.
- Eliminate ballast water discharge.
- Discharge to an onshore facility or to another vessel for treatment.
- Use ballast water drawn only from a U.S. public water system in compliance with federal drinking water regulations,
- Install a ballast water management system (BWMS) approved by the Coast Guard (called type approved).
In the rule, the Coast Guard noted that implementing the approval process would take at least 3 years. Accordingly, the rule provided an interim compliance option—use of an alternate management system (AMS). An AMS is a BWMS that has been approved by a foreign administration pursuant to standards developed by the IMO, which the Coast Guard has determined is at least as effective as ballast water exchange. Under the rule, AMSs are allowed for up to 5 years after a vessel’s compliance date.
EPA Authority and Rules
Under the CWA, point sources must hold a permit authorizing the discharge of pollutants into U.S. waters. The EPA first exercised this authority over vessels in 2008 when the Agency issued its vessel general permit (VGP) for vessels longer than 79 feet. The permit addressed 26 wastestreams, including ballast water, resulting from the normal operation of vessels. The ballast water requirements aligned with the Coast Guard’s rules—primarily ballast water exchange outside the EEZ. The VGP was renewed in 2013 with compliance options for meeting the numeric discharge similar to those in the 2012 Coast Guard rule, with several differences:
- The Coast Guard rule applies to about 3,050 vessels with ballast tanks while the VGP applies to approximately 72,000 vessels.
- The Coast Guard rule exempts crude oil tankers engaged in coastwise trade. The CWA and the VGP do not exempt such vessels.
- The Coast Guard Rule focuses on ballast water discharges; the 2013 VGP authorizes discharges of ballast water and 26 other wastestreams incidental to the normal operation of vessels.
- Both adopt ballast water discharge standards similar to those in the IMO convention, but they include different monitoring, recordkeeping, and reporting requirements.
- Both the Coast Guard and the EPA have enforcement authority, but only the CWA authorizes citizen suits alleging permit violations. Neither the NISA nor the CWA preempt states from regulating vessel discharges.
The States
Twenty-five states certified the 2013 VGP with additional permit conditions covering 1 or more of the 27 effluent streams, including ballast water. Such supplementary conditions include specific numeric discharge standards more stringent than those in the 2013 VGP or the 2012 Coast Guard rule. The commercial shipping industry and environmental groups have challenged several separate state permits, on differing grounds, but courts have generally sided with the states.
Issues
- The maritime industry has favored a single set of vessel discharge requirements, especially for ballast water discharges, overseen by the Coast Guard. Industry also opposes the conditions states attach to EPA general permits, arguing that the result is a patchwork of inconsistent and unnecessarily costly requirements. In its 2012 Rule, the Coast Guard said the NISA provides the states jurisdiction over fish and wildlife, and, therefore, the Coast Guard cannot legally preempt state action to regulate discharges of ballast water.
- Both the 2012 Coast Guard Rule and the 2013 VGP established ballast water numeric standards derived from the IMO convention. For nonconventional pollutants, such as AISs, the EPA must promulgate effluent limitations based on the best available technology (BAT) economically achievable. Following issuance of the 2013 VGP, environmental groups persuaded the U.S. Court of Appeals for the 2nd Circuit that the EPA failed to justify its decision not to set permit limits that exceeded the IMO standards because, the court said, the technology is available. The court remanded the permit to the Agency with instructions to redraft the ballast water provisions. The court also allowed the VGP to remain in effect in the meantime. The EPA has yet to respond to the court’s ruling; the 2013 VGP is set to expire in December 2018.
- In 2016, the Coast Guard found that onboard technologies to achieve significant improvements in ballast water treatment could not be practicably implemented and that no data demonstrated that the BWMS could meet discharge standards more stringent than the existing standards.
- The Coast Guard’s regulations require that nonexempt vessels equipped with ballast tanks and operating in U.S. waters must comply with the numeric ballast water discharge standards through one of the four options listed above. Under the 2013 VGP, vessels utilizing a BWMS to comply with numeric limits must use a system that has been shown to be effective after testing by an independent third party. The permit explicitly states that a Coast Guard type-approved BWMS and/or AMS will be deemed to meet the shown-to-be-effective provision.
- Although new and existing vessels subject to the 2012 Coast Guard rule and the 2013 VGP were to be in compliance with the numeric ballast water discharge standards by January 2016, the Coast Guard did not type approve any BWMS until December 2016. To date, the Coast Guard has type approved six systems. During the interim, vessel owners/operators that used an AMS were in compliance with both sets of requirements. However, an AMS may only be used for 5 years after a vessel’s compliance date, with no certainty they will be approved by the Coast Guard for long-term compliance. The Coast Guard may grant extensions to vessels that can document that compliance with one of the options is not possible. The EPA does not have such authority. However, an EPA policy states that if vessels were otherwise in compliance with the 2013 VGP and had applied for and received an extension from the Coast Guard, enforcement with the ballast water discharge standard due to unavailability of type-approved systems would be a low priority.
- BWMS manufacturers have argued that the testing protocol the Coast Guard uses in determining whether a particular BWMS is effective in meeting the ballast water discharge standards (and should therefore be type approved) is too restrictive. The Coast Guard requires the BWMS to be tested based on the ability of the system to kill organisms (a live/dead standard). Some assert that the Coast Guard should also allow systems to be tested based on the ability of the system to render the organisms incapable of reproducing (a viable/nonviable standard).
- Some in the shipping industry argue that vessels operating in the Great Lakes (Lakers) are confined to a geographically limited area, do not introduce AISs, and should not need to treat their ballast water. Others contend that Lakers spread AISs from one area in the Great Lakes to other areas more widely and quickly than would occur through normal migration.
Statutory Solution
The VIDA would specify the Coast Guard’s 2012 numeric ballast water standards as the single federal ballast water management standard, displacing existing state standards or permits and EPA’s ballast water requirements. The Coast Guard, in consultation with the EPA, would be directed to conduct a review in 2022 and then every 10 years to determine whether to revise the standard. States would be allowed to petition for stricter ballast water and incidental discharge standards. If the Coast Guard, in consultation with the EPA, revised the standard, it would become a national requirement. The legislation would also direct the Coast Guard, in consultation with the EPA, to issue a rule to establish best management practices for vessel discharges other than ballast water.