The Industry Perspective on Ballast Water Management ASTM Seminar on Environmental Requirements for Efficient Maritime Operations and Effective Environmental Stewardship Kathy Metcalf December 9, 2009

Ballast Water Management Balance of Powers gone wrong! Balance of Powers gone wrong! Legislative, judicial and executive branch Legislative, judicial and executive branch BW Legislation? BW Legislation? Court case – NW Environmental Advocates vs. EPA (Industry intervened) Court case – NW Environmental Advocates vs. EPA (Industry intervened) EPA and USCG regulatory programs EPA and USCG regulatory programs State programs State programs

INDUSTRY BASED ASSUMPTIONS Need for internationally accepted mandatory BW management program Need for internationally accepted mandatory BW management program Consistency between international and domestic programs Consistency between international and domestic programs Solutions must provide real benefit to the environment Solutions must provide real benefit to the environment We are experts in vessel operations, not marine/invasion biology We are experts in vessel operations, not marine/invasion biology

INDUSTRY POSITIONS Mandatory national BW management program Mandatory national BW management program Exchange as technology benchmark but no longer appropriate focus for future control strategies Exchange as technology benchmark but no longer appropriate focus for future control strategies Promote ID and testing of new technologies Promote ID and testing of new technologies Oppose dual regulatory structures e.g. CWA NPDES and ballast water statute Oppose dual regulatory structures e.g. CWA NPDES and ballast water statute

LAY OF THE LEGAL LANDSCAPE Finalized IMO Convention Finalized IMO Convention Development of IMO Guidelines Development of IMO Guidelines US Legislative Initiatives (Fed/State) US Legislative Initiatives (Fed/State) Regulatory Initiatives (Fed/State/Local) Regulatory Initiatives (Fed/State/Local) Multitude of technology developers all assuring their silver bullet Multitude of technology developers all assuring their silver bullet

IMO CONVENTION VS. US LEGISLATION IMO entry into force???? IMO entry into force???? Multiple US legislative efforts Multiple US legislative efforts US legislation enactment expected ??? US legislation enactment expected ??? Industry position to maximize alignment of national and IMO requirements Industry position to maximize alignment of national and IMO requirements 100% alignment unlikely (performance std.) 100% alignment unlikely (performance std.)

DEVIL IS IN THE DETAILS (IMO Guidelines) Sediment and BW Reception Facilities Sediment and BW Reception Facilities Sampling Sampling Equivalent Compliance for pleasure/SAR vessels Equivalent Compliance for pleasure/SAR vessels BW Management Plans BW Management Plans BW Exchange BW Exchange Additional measures and risk assessment protocols Additional measures and risk assessment protocols Approval of ballast water management systems Approval of ballast water management systems Procedures for approval of active substances Procedures for approval of active substances Prototype BW treatment technologies Prototype BW treatment technologies

DEVIL IS IN THE DETAILS (US Legislative and Regulatory) General legislation with details left to regulatory programs or… General legislation with details left to regulatory programs or… Specific legislation with less detail left to regulatory programs? Specific legislation with less detail left to regulatory programs? IMO requirements reflected in total…in part…or not at all? IMO requirements reflected in total…in part…or not at all? Intentional or inadvertent loopholes with partial adoption of IMO requirements Intentional or inadvertent loopholes with partial adoption of IMO requirements

PERFORMANCE BASED STANDARD Mandatory requirements do able by all vessels regardless of location, vessel type or weather/sea conditions Mandatory requirements do able by all vessels regardless of location, vessel type or weather/sea conditions New technology verified by standardized test protocols New technology verified by standardized test protocols Timed phase-in differentiating between new and existing ships Timed phase-in differentiating between new and existing ships

ALTERNATIVE BW MANAGEMENT TECHNOLOGY PROGRAM Must be transparent process Must be transparent process Specified process for proposal submittal, evaluation and approval Specified process for proposal submittal, evaluation and approval Specified format and content Specified format and content Use of technology verification protocols Use of technology verification protocols Temporary approval for testing program with final review and approval for successful test programs Temporary approval for testing program with final review and approval for successful test programs

FEDERAL PREEMPTION OF STATE REQUIREMENTS NISA 96 recognizes need for national and international consistency NISA 96 recognizes need for national and international consistency Equally applicable to federal and state programs Equally applicable to federal and state programs Must have strong legal and policy justification to gain Congressional support Must have strong legal and policy justification to gain Congressional support Current evidence of patchwork quilt in varying state and national requirements (NPDES Vessel General Permit – Ch. 6) Current evidence of patchwork quilt in varying state and national requirements (NPDES Vessel General Permit – Ch. 6)

NEED FOR EXCLUSION FROM CLEAN WATER ACT PROVISIONS Text to make national legislation the EXCLUSIVE statute for managing ballast water Text to make national legislation the EXCLUSIVE statute for managing ballast water Otherwise, provisions of CWA permitting program (NPDES) would apply as well Otherwise, provisions of CWA permitting program (NPDES) would apply as well

TECHNOLOGY DEVELOPMENT CONSIDERATIONS Maximum operational flow rate (vessel) Maximum operational flow rate (vessel) Maximum operational flow rate (application and/or residence time) Maximum operational flow rate (application and/or residence time) Adaptability to shipboard environment Adaptability to shipboard environment Footprint Footprint Installation and maintenance feasibility Installation and maintenance feasibility Back-up capability and redundancy Back-up capability and redundancy Sampling and monitoring needs Sampling and monitoring needs

CHALLENGES Standardized test protocols Standardized test protocols Finalized IMO guidelines and domestic requirements Finalized IMO guidelines and domestic requirements Ramp-up from lab to pilot to shipboard Ramp-up from lab to pilot to shipboard Conversion of existing performance data (% removal to concentration based format) Conversion of existing performance data (% removal to concentration based format) Sufficient funding (public and private) Sufficient funding (public and private) ACKNOWLEDGEMENT THAT THERE IS NO SILVER BULLET! ACKNOWLEDGEMENT THAT THERE IS NO SILVER BULLET!

PENDING LEGISLATION (FEDERAL) None as yet in new Congress None as yet in new Congress Expect re-introductions of ballast water legislation in House and Senate? Expect re-introductions of ballast water legislation in House and Senate? Senate players – Levin, Inouye, Boxer Senate players – Levin, Inouye, Boxer House players – Oberstar, Ehlers, LoBiondo House players – Oberstar, Ehlers, LoBiondo

STATE ACTIONS California (zero discharge by 2020) California (zero discharge by 2020) Provides perfect example of why a national program is necessary e.g. varied requirements Provides perfect example of why a national program is necessary e.g. varied requirements Wide variety of state requirements in NPDES Vessel General Permit (Ch. 6) Wide variety of state requirements in NPDES Vessel General Permit (Ch. 6) Expect more in next round of VGP review Expect more in next round of VGP review

Rulemaking petition Dec. 2003: Lawsuit filed by Northwest Environmental Advocates and others challenging petition denial Litigation & outcome in U.S. District Court March 2005: Ruling that the regulation (40 CFR 122.3(a)) excluding discharges incidental to the normal operation of a vessel from NPDES permitting exceeded the Agency s authority under the CWA Sept 2006: Final order vacating (revoking) the regulatory exclusion as of September 30, 2008, and potentially affects all incidental discharges of vessels July 2008: 9 th Circuit upholds lower court decision August/December 2008: US District Court grants extension of application to Feb 6, 2009 Current status – case filed in DC Circuit Court of Appeals 17

All vessels with discharges of pollutants over 79 subject to permit on 2/6/2009 (60,000+) Congressional exemption for recreational boaters and fishing vessels Coverage automatic on February 6, 2009; vessels allowed 6-9 months to file NOI Not just limited to ballast water discharges but includes other operational discharges But does NOT affect exemptions specifically contained in CWA itself (see earlier slide) 18

How to address State WQ standards that vary reach-by-reach or State to State? How to integrate with any applicable international or domestic requirements under statutes besides CWA? (e.g., Coastal Zone Management Act which requires State certification as to consistency with coastal zone management plans) 19

Incorporate current legal requirements Create Best Management Practices (BMPs) reflecting current practices Some add ons with biggest impacts on vessels not going outside 3 nm and those that do but remain inside for extended period (anchorage, repairs, etc.) 20

Use of ambiguous terms (minimize, where practical, to the extent possible) Insufficient science and fleet data to justify discharge restrictions (no environmental impacts analysis) Lack of temporal and spatial distribution data State 401 certification process and varying state requirements 21

Kathy Metcalf Director, Maritime Affairs Chamber of Shipping of America 1730 M Street, NW Suite 407 Washington, DC