Four environmental agencies petitioned the Second Circuit Court of Appeals for review of the Vessel General Permit (“VGP”) issued by the Environmental Protection Agency (“EPA”) in 2013 under Section 509(b)(1) of the Clean Water Act (“CWA”), which regulates the discharge of ballast water from ships (and is the primary cause of the spread of invasive species to different bodies of water). On October 5, 2015, the Second Circuit Court of Appeals issued an opinion in Natural Resources Defense Council, et al. v. United States Environmental Protection Agency, holding that the EPA acted arbitrarily and capriciously in issuing the permit and remanded back to the EPA for further proceedings.
The sixty-five (65) page decision goes into great detail regarding the historic context for why such a VGP is necessary, the purposes of the CWA, and the technical components of the statute for preventing pollutants and measuring compliance with the act, specifically water quality standards. The EPA issued the 2013 VGP allowing vessels to discharge ballast water subject to certain limitations on the living organisms in the discharge. The Court found that the EPA acted arbitrarily and capriciously with respect to certain standards imposed in the VGP as follows:
1. The decision to set the Technology Based Effluent Limits based on the IMO standard, instead of following the CWA’s mandate to set the standards based on the Best Available Technology economically achievable and failing to explain why it adhered to the IMO standard when technologies exist which exceed those minimum requirements;
2. The EPA’s failure to consider onshore treatment facilities for ballast water discharge simply because none were in existence; even though such systems could be technologically available. The Court noted that the EPA’s own Scientific Advisory Board Report noted that onshore treatment would have a number of advantages over shipboard treatment given the limited space on ships, overburdened crews, vibrations, weight allowances, limited power, ship instability, and greater corrosion rates;
3. The decision to exempt pre-2009 Lakers Vessels from Technology Based Effluent Limits, without providing sufficient explanation for such exclusion;
4. The decision to permit narrative standards for Water Quality Based Effluent Limits because it is insufficient to give a shipowner guidance as to what is expected. The Court held that just because writing such standards would be difficult, the permit writers cannot just “throw up their hands” and refuse to issue more specific guidelines;
5. Finally, that the EPA acted arbitrarily and capriciously in failing to establish monitoring and reporting requirements for Water Quality Based Effluent Limits, as the requirements were only for providing information on expected date, location, volume and salinity, none of which provides sufficient information on the ballast water “quality.”
The Court has remanded back to the EPA for further handling, studies, and revised VGP consistent with the Court’s ruling. The Court has allowed the VGP to remain in place pending issuance of a new VGP consistent with its holdings.
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