How About One Rule for Ballast Water Instead of Many, Shippers Ask

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By Amena H. Saiyid

Tugboat and barge operators don’t want to answer to two bosses.

They want one boss and one set of rules to follow. Specifically, they want the U.S. Coast Guard—not the Environmental Protection Agency—to regulate ships’ discharges of ballast water and other waste such as deck runoff, grease and dirty water from showers and sinks.

Cargo ships, cruise liners and large tankers use ballast water for balance and stability, but it also can be a source of nuisance or exotic aquatic plants or animals brought in from other ports. Federal and state rules are intended to minimize the harm that invasive species carried in ballast water can have on the ecosystems into which they are released.

Shipowners and operators say they are tired of trying to anticipate what on-board treatment systems will be required to comply with the myriad regulations states have imposed on top of federal requirements.

That is why their national advocacy group, the American Waterways Operators, has thrown its support behind the Commercial Vessel Incidental Discharge Act (S.168/H.R. 1154) in Congress. These measures authorize the Coast Guard to set national ballast water standards based on its 2012 regulations (RIN:1625-AA32) under the National Invasive Species Act, rather than the Clean Water Act. The bill would relegate the EPA to an advisory role on setting limits for all incidental discharges.

“What we support is consolidation of federal regulations—the EPA and the Coast Guard—and regulations from 25 states by a single federal agency that is the Coast Guard,” Craig Montesano, the group’s vice president for legislative affairs, told Bloomberg BNA March 13.

Under the bills, the Coast Guard regulations would supersede existing ballast water discharge limits set by the EPA under the National Pollutant Discharge Elimination System permitting program for vessels that are at least 79 feet long, and more stringent standards that some states like California, Washington and Oregon have sought from the agency. The bills also would completely exempt recreational and fishing vessels that are less than 79 feet in length.

Affect 58,000 Vessels

The bill would affect an estimated 58,000 vessels, including commercial fishing boats, cruise ships, ferries, barges, mobile offshore drilling units, oil tankers, cargo ships, container ships, research vessels and emergency response vessels.

The support of the waterways operators for the congressional measures has pitted them against the attorneys general of nine states—New York, California, Illinois, Maine, Massachusetts, Michigan, Oregon, Rhode Island, Vermont, Washington—who say this measure preempts state authority, and takes away the permitting authority delegated to them by EPA under the Clean Water Act.

The measure is an attempt to “dismantle” state and federal pollution laws and “vests primary responsibility for controlling vessel pollution with the U.S. Coast Guard, an agency mainly focused on homeland security that has little water pollution expertise ,” the attorneys general wrote in a Feb. 15 letter to Senate Majority Leader Mitch McConnell (R-Ky.) and Minority Leader Charles Schumer (D-N.Y.).

Montesano agrees that the bill would do away with state regulations, a move that his group wholeheartedly supports.

“We want the ‘guess work’ involved in installing ballast water treatment system taken out based on where the vessel is headed,” Montesano said, making a push for certainty and uniformity in regulations.

However, environmental groups, notably the Natural Resources Defense Council, oppose the bill.

Rebecca Riley, the council’s senior attorney, predicted the House and Senate measures won’t go anywhere just as they haven’t previously progressed when members have tried to attach them to unrelated bills. The last such attempt took place after November elections, when there was an attempt to attach an identical bill to the National Defense Intelligence Authorization Act to “which it had no relevance,” Riley said.

Compliance a ‘Moving Target’

The EPA’s 2013 vessel general NPDES permit not only set effluent limits for 26 incidental discharges, but also numeric ballast water limits for the first time in ships, tankers, cruise liners and tugboats that are longer than 79 feet. The permit also required that vessels built after Dec. 1, 2009, meet the 2012 Coast Guard regulations that mirror the International Maritime Organization’s standard for ballast water. The Coast Guard also is required to certify the commercially available technologies for use aboard these vessels.

Montesano pointed to the overlap, saying “vessel operators are currently laboring under a duplicative regulatory system that can be fixed by Commercial Vessel Incidental Discharge Act’s consolidation of multiple regulations under the U.S. Coast Guard.”

“Compliance is a moving target” for waterways operators, he said.

The Clean Water Act allows states to add conditions to the discharge permit to protect their waters from invasive species on top of the federal requirements. These conditions are a prerequisite for states to certify that the discharge permit won’t violate state water quality standards.

According to the waterways operators, a tugboat traveling from a port in Anacortes, Wash., to a port in California, will encounter the EPA regulation with its effluent limits on ballast water and other discharges; state-specific conditions mandated by Washington, Oregon and California; the Coast Guard’s ballast water management requirements and finally the state laws that require submission of compliance reports.

“We want the state regulations preempted,” Montesano emphasized.

Further complicating compliance with the varying regulations is the fact that the Coast Guard this past December certified a single technology for treating ballast water to meet its standards.

The Environmental Council of States hasn’t taken a position on the current ballast water legislation, John Stine, the council’s president and commissioner of Minnesota Pollution Control Agency, told Bloomberg BNA March 13.

Concerns With Bill

He said the environmental council shares “serious concerns” with the attorneys general about preempting state authority under the Clean Water Act to treat ballast water and other incidental discharges, such as toxic metals and greywater from the sinks and showers.

NRDC opposes the bill because it freezes the current protections in place, Riley said.

The Clean Water Act is written to protect waters by improving standards based on the availability of improved technology. This bill strips away EPA’s Clean Water Act authority, she said.

Moreover, the bill preempts states authority by not allowing them to ever impose more stringent standards than the underlying federal protections, Riley said. “This is unusual.”

The Great Lakes Commission, an interstate agency charged with promoting a coordinated vision for the development, use and conservation of the lakes, plans to introduce a resolution on ballast water at its semi-annual meeting, which runs March 14-16 in Washington, D.C.

The draft resolution, which is expected to sail through the commission March 14 without much change, would urge the governments of Canada and the United States to pursue compatible federal ballast water treatment standards and enforcement mechanisms.

No New Invasive Species in Great Lakes

The resolution recognized that the EPA’s current 2013 vessel general permit allows commercial ships entering the Great Lakes via the Saint Lawrence Seaway to use saltwater flushing, while the Coast Guard only allows it until a technology to treat ballast water becomes commercially available.

The Great Lakes Commission wants consistency in application of ballast water, said Stine, who as a member of the group is in town for the meeting.

“If there is to be any change to the existing authorities then it should make sure that it is compliant with the Clean Water Act as well,” Stine said, adding the states making up the commission want the EPA to play an equal role because the agency has more experience in handling discharges than the Coast Guard.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

The text of Commercial Vessel Incidental Discharge Legislation (S.168/H.R. 1154) is available at https://www.congress.gov/115/bills/s168/BILLS-115s168is.pdf

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