EPA and Coast Guard Disagree on Ballast Water Discharge Limits

Legal firm K&L Gates are advising shipping companies that they face a conundrum regarding their obligations in meeting the U.S. ballast water discharge limits that have entered into force this year.

Under the National Invasive Species Act of 1996, the U.S. Coast Guard regulates ballast water discharged from vessels by requiring installation of certain technologies that treat ballast water prior to discharge. The installed technologies must meet Ballast Water Management Discharge Standards according to a phased-in schedule that began on January 1, 2014.  The Coast Guard must approve any technology before it may be placed on a vessel.  

Under the Clean Water Act, the U.S. Environmental Protection Agency (EPA) issued the 2013 Vessel General Permit for Discharges Incidental to the Normal Operation of Vessels effective December 19, 2013, which requires the same vessels to comply with certain numeric ballast water discharge limits through installation of the same technology and on the same schedule as the Coast Guard requires.  

However, because the Coast Guard has not yet approved the technology necessary to meet the standards as was anticipated when the requirements were established, many vessels will not be able to meet the new standards in accordance with the current schedule, given the long lead time associated with testing, approval, production, and installation of that equipment.  

EPA and the Coast Guard, however, have taken different positions on how to address this problem.  The Coast Guard is formally granting legal protection to vessels that cannot install the new technology because it has not yet been approved.  EPA, on the other hand, declined to follow this approach, and although promising to “take this into account,” is providing no assurance that vessel owners/operators will not face serious administrative, civil, or even criminal sanctions for failing to install the equipment in time.