Regulatory Complexity and Ballast Water Management

On September 8, Finland became the fifty-second country to sign on to the International Maritime Organization (IMO) International Convention for the Control and Management of Ships’ Ballast Water and Sediments, pushing the Convention over the 35 percent threshold required for ratification and starting the yearlong countdown on its entry into force on September 8, 2017. The approaching deadline heightens concerns among the international shipping community over the uncertain state of ballast water management in the U.S.

Though the U.S. is not a party to the Convention, vessels operating under the flag of a signatory must comply with both Convention regulations as well as applicable port state requirements. In the U.S. this means adhering to two distinct regulatory programs that often are at odds with each other. The United States Coast Guard (USCG) regulates ballast water discharges under authority of the Nonindigenous Aquatic Nuisance Prevention Control Act (NANPCA) and the National Invasive Species Act (NISA), while the Environmental Protection Agency (EPA) regulates the discharge of pollutants, including ballast water, from point sources into waters of the U.S. under authority of the Clean Water Act (CWA).

Compliance with these three sets of rules is problematic, for although the IMO, EPA, and USCG regulations all enforce the same numeric discharge standards, there is substantial variation in the protocols required to meet these standards. In addition to practical compliance complications, ship owners also must confront the substantial financial undertaking posed by the installation of multi-million dollar ballast water management systems (BWMS) which could be rendered obsolete by evolving regulatory programs.

IMO Regulations

At the core of the Convention’s regulations are numerical standards that limit the number of organisms and indicator microbes permitted in ballast water discharges. To ensure that BWMS will meet the discharge criteria and pass the type-approval process, the Marine Environmental Protection Committee (MEPC) of the IMO created the G8 guidelines. Once the Convention enters into force in September 2017 vessels must meet the numerical performance standards by the date of their first International Oil Pollution Prevention (IOPP) survey, essentially creating a maximum compliance window of five year (though ships that participate in approved tests of promising treatment technologies may receive an additional 5-year extension).

Ratification of the Convention has done nothing to reassure ship owners that their IMO compliant BWMS will meet U.S. requirements. Compared to the U.S., which is yet to approve any proposed system, 65 systems have been approved pursuant to the G8 guidelines. Owners also worry whether retrofitting upwards of 70,000 ships with expensive BWMS within the narrow window provided by the Convention is feasible. In response to criticism that their approval criteria is not sufficiently protective of the marine environment, the IMO has agreed to review and revise its G8 guidelines, and it is anticipated that more rigorous criteria will be adopted in October 2016. Ship owners who have installed systems approved under the current guidelines, however, will not be penalized, provided the systems are being operated properly. Whether sufficient shipyard resources exist to install new systems within the compliance window provided for by the Convention has not yet been determined.

U.S. Coast Guard Regulations

Ballast water requirements in the U.S. are generally considered to be more restrictive than their IMO counterparts.  USCG regulations apply to all non-recreational ships, U.S. or foreign, that have ballast water tanks and call at U.S. ports. These ships may comply with the USCG rules by:  eliminating ballast water discharges altogether; using ballast water only from the U.S. public water system; discharging only to onshore treatment facilities; or by using an approved BWMS. The first three of these options do not present economically feasible management practices, and the fourth, use of approved BWMS is not yet feasible.

At a high level, the USCG’s BWMS requirements are similar to the IMO Convention, using the same numerical discharge standards and requiring type approval. Despite targeting the same technical standards, however, the USCG has not yet approved any proposed BWMS. The USCG stands by its rigorous approval protocol, emphasizing that strong regulation forces innovative solutions. Acknowledging the difficulty in demonstrating compliance in the absence of approved equipment, the USCG will grant limited extensions to vessel owners who demonstrate that compliance within the required time is not possible. Most readily, an IMO-approved BWMS installed as an Alternate Management Systems (AMS) prior to a ship’s scheduled compliance date may be used for a five year extension beyond the scheduled compliance date. If after the five year grace period the installed system has not been type-approved, the vessel must install a USCG-approved system or receive a further extension in order to continue operating in U.S. waters.

Forward-thinking owners may install a promising AMS with the hope that it will receive USCG type-approval, but since not one of the 65 existing AMS has achieved this distinction, such an approach carries risk. In particular, the USCG has rejected most proposed ultraviolet (UV) systems that simply sterilize, rather than kill, organisms. Under the IMO testing methodology, on the other hand, sterilized organisms are considered unviable and thus UV systems are considered compliant. The USCG believes that the only reliable method for evaluating ultimate system effectiveness is a straightforward consideration of organism mortality, not the reproductive viability that most UV systems are geared toward. Despite the high bar set by the USCG, several companies have announced that their BWMS, including one UV system, have completed all the required tests, and that USCG approval is imminent.

EPA Clean Water Act Regulation

Despite the fact that the USCG traditionally has been the agency to regulate shipping in the U.S., the EPA has jurisdictional authority to regulate ballast water, as well as 26 other incidental discharges, through the Vessel General Permit (VGP) issued under the CWA. While the current VGP sets the same ballast water discharge limits as the IMO Convention and the USCG rule, a federal court found those limits to be arbitrary and capricious following a challenge by environmental groups. As a result, current VGP requirements remain in place but the next version of the permit, to be issued in 2018, likely will contain more rigorous permit requirements.

The EPA’s ballast water requirements differ from the USCG rules in several ways: the EPA is not authorized to grant extensions for vessels to come into compliance, so all ships are required to operate in accordance with the current VGP; compliance with EPA standards can be attained by any means rather than through a type approval process; and delegated states are authorized to set their own water quality standards provided they are at least as stringent as the federal standards. Fourteen states used their delegated authority to certify the 2013 VGP with additional conditions concerning ballast water, and several states, such as New York and California, specified numeric standards that are far more stringent than those in the VGP: 100 times stricter in New York, and 1000 times more stringent in California. While these requirements have been temporarily suspended until they are deemed technologically achievable, the specter of a “most rigid” bar being set by an important port state, such as NY or CA, is cause for concern.

Coordination of Enforcement Authorities

Industry groups have clamored for a single, uniform approach to ballast water regulation in the U.S., but there is no simple path to harmonizing competing regulatory programs. The current regulations differ in the number of vessels covered, the number of pollutants regulated, and how they are enforced.  In addition, the question of agency primacy is contentious. Commercial shipping interests would push for the USCG, in part because of the agency’s general familiarity with the industry, and also because their authorizing statute does not provide for citizen suits. Environmental groups argue for the EPA, for whom protection of the environment is its sole mission. In addition, despite the outcome of the ballast water issue, the EPA will retain regulatory authority over the 26 other vessel discharges addressed in the VGP.

The agencies have recognized their overlapping jurisdiction and have made some effort to coordinate , as evidenced by their February 2011 Memorandum of Understanding (MOU) regarding VGP enforcement and a 2013 internal EPA memo addressing the agency’s stance on ships that are not in compliance with EPA requirements but that have received extensions from the USCG.

An Eye towards the Future

In response to potential restrictions on international commerce created by this regulatory morass, and in an effort to streamline U.S. ballast water management requirements, the Vessel Incidental Discharge Act (VID Act) was introduced to the Senate in February 2015. The VID Act would consolidate the authority to regulate ballast water with the USCG, superseding the ability of the EPA or individual states to enforce other discharge prohibitions or permit requirements. The USCG’s 2012 standards would remain the baseline, but more stringent standards would be required by January 2022 unless deemed unattainable.  After languishing for a year, the VID Act was resurrected and included in the House version of the National Defense Authorization Act for Fiscal Year 2017 (NDAA). Industry leaders were successful in a push to include ballast water reform in the Senate version of the bill as well. Currently the House and Senate are resolving the difference between their bills, and it is likely that the VID Act will be included when the final bill is presented to the President to be signed into law.

Conclusion

Absent regulatory harmonization, vessels operating in the U.S. may soon face three separate, overlapping, and at times contradictory sets of rules governing their ballast water management practices. In addition, discharge standards in the years ahead will only become more stringent. Recognizing the potential for a regulatory quagmire, however, each key regulatory authority has taken steps towards a more unified regime, and the recent countdown on implementation of the IMO Convention has added a sense of urgency. Time will tell if the next year will bring clarity and uniformity, but at least there is growing momentum in that direction.

Peter Knight is a partner with Robinson & Cole’s Environmental and Utilities practice group.  He has represented vessel interests in connection with regulatory compliance, government investigations, oil spill response and remediation, and related litigation. Tavo True-Alcalá is an Environmental and Energy Analyst with Robinson & Cole.  For more information, contact Peter Knight at +1 860-275-8387.