1. Environmental Compliance Challenges for the Future
North American Marine Environment Protection Association
Environmental Compliance Challenges for the Future
Houston, TX
February 23, 2017
Michael K. Bell #

2. Compliance Challenges
Trump Administration
Ballast Water Management
EPA’s Vessel General Permit
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NAMEPA - Environmental Compliance Challenges for the future

3. Environmental Regulations Under the Trump Administration
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4. Environmental Regulations
Industry closely following to what extent the new Trump administration will impact the maritime industry environmental regulations
Short answer: probably not very much
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NAMEPA - Environmental Compliance Challenges for the future

5. Environmental Regulations
Generally, the Trump administration aims to cut back on environmental regulations
But, we do not anticipate significant changes for the maritime industry since most of environmental regulation of shipping is driven by issues which carry over to administrations unchanged
For example:
International conventions
Agreements
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NAMEPA - Environmental Compliance Challenges for the future

6. Offshore Energy
Obama administration gave strong support to Offshore Wind/Renewable Energy
12 commercial leases (Atlantic OCS)
Unclear if Trump administration will support
Offshore Oil and Gas
Expect Trump administration to be friendlier to offshore oil and gas
May be policy action to assist offshore drilling
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7. Marine Environmental Grants
Congress recently appropriated close to $3 million for grants
Hydrogen Fuel Cells
Batteries
Ballast Water Technology
May not survive President Trump cuts, leaving to Congress to decide if worth funding
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8. Ballast Water Management
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9. IMO Ballast Water Convention
One of most challenging regulatory issues over the past decade
Overarching Authorities:
IMO: Ballast Water Convention
U.S. Coast Guard: Ballast Water Management Program
EPA: Vessel General Permit
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10. IMO Ballast Water Convention
Entry into force September 8, 2017
Uses numerical standards that limit the number of organisms and indicator microbes permitted in ballast water discharges
Type-approval of Ballast Water Management Systems—different protocol that the US Coast Guard
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11. U.S. Coast Guard—Ballast Water Management
Final Rule (March 2012)
Mandatory ballast water management and reporting regulations
Require compliance with treatment standard
Same as IMO’s but a different testing protocol for type-approvals
Applies to vessels operating in U.S. waters with ballast tanks
Compliance with ballast water requirements is a port state control priority
Civil and criminal penalties for non-compliance
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12. U.S. Coast Guard—Five Options for Ballast Water Management Systems (“BWMS”)
Discharge ballast water to an onshore facility or to another vessel for purposes of treatment
Compliance Challenge: None available at this time
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13. U.S. Coast Guard—Five Options for BWMS
Use water from a U.S. public water system
Compliance Challenge: Not generally practical except for limited group of domestic operators
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14. U.S. Coast Guard—Five Options for BWMS
Use an IMO-approved and USCG-authorized Alternate Management System (“AMS”) for up to five years from the vessel’s compliance date
Compliance Challenge: Not generally practical unless assurance they will ultimately be U.S. Coast Guard approved (no assurances…)
Current Regulatory Posture: Vessels with AMS must use them and no extensions unless non-operational
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15. U.S. Coast Guard—Five Options for BWMS
Do not discharge ballast water into U.S. waters (i.e., within 12 miles of the U.S. coast)
Compliance Challenge: Not practical, save for some limited number of vessels, generally passenger vessels
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16. U.S. Coast Guard—Five Options for BWMS
Install/operate a USCG type-approved BWMS
Optimarin - ultraviolet system
Operational Challenge: Requires 72-hour hold time
Alfa Laval - ultraviolet system
OceanSaver - electro-chlorination system
Safety Challenge: Hydrogen by-product must be vented
Current Development: USCG reviewing fourth BWMS
BalClor electrolysis system (Manufacturer: Sunrui)
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17. U.S. Coast Guard BWMS Type-Approval Extension Requests
If no BWMS are appropriate:
USCG may still grant an extension to a vessel’s compliance date (requests must be submitted at least on year in advance)
Owner/operator must document that, despite all efforts, compliance is not possible
Owner/operator must provide justification to the USCG:
an explicit statement of why none of three BWMS are appropriate for each vessel
supported by documentation/analyses
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18. U.S. Coast Guard BWMS Type-Approval Extension Requests
Future Compliance Challenges:
USCG policy is shifting
Becoming more difficult to obtain extensions
Timeliness and thorough documentation critical
USCG currently developing new guidance and policy
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19. Ballast Water Enforcement
Feb. 2, 2017: U.S. Coast Guard (Seattle) initiated ballast water civil penalty proceeding against bulk carrier operator
Vessel alleged to have discharged ballast water without the use of a USCG approved BWMS or other approved means
violation of the National Invasive Species Act
maximum penalty: $38,175
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20. EPA’s Vessel General Permit
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21. EPA’s 2013 Vessel General Permit (“VGP”)
VGP regulates “discharges incidental to the normal operation of commercial vessels” greater than 79 feet in length
Key “incidental discharges”:
Ballast water
Bilge water
Gray water
Deck washdown and runoff
Oil to sea interfaces
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22. EPA’s 2013 Vessel General Permit (“VGP”)
VGP effective from December 19, 2013, to December 18, 2018 (5 years)
Includes numeric limits for ballast water, consistent with IMO and the U.S. Coast Guard
Enforcement (reportedly) on the rise
Notice of Intent requirements
Routine inspections (outside 3 miles)
Documentation critical
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23. VGP Litigation: Possible Future Legal Challenge
On October 5, 2015, U.S. Court of Appeals for the Second Circuit ruled that the EPA acted “arbitrarily and capriciously” in drafting the ballast water discharge provisions of its 2013 VGP
EPA must revise the permit or justify its decision
Changes to the VGP ballast water management requirements mandated by the Second Circuit’s ruling likely will not be seen until the 2018 VGP
Draft 2018 VGP like out for comment by this fall
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24. Significant shift towards federal management of ballast water
Legislative Development: Senate Bill 168 Commercial Vessel Incidental Discharge Act
Introduced on January 17, 2017
Preempts states from regulating incidental ballast water discharges into navigable U.S. waters
Significant shift towards federal management of ballast water
Will remain difficult to enact
Continued strong state interests in opposition
10 Attorneys General have objected
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25. Questions?
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26. Michael K. Bell Blank Rome LLP 717 Texas Avenue Suite Houston, TX Phone:
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NAMEPA - Environmental Compliance Challenges for the future