EPA to Add Numeric Limits to Ballast Water Discharge Rules Under Settlement with Environmental Groups

EPA will begin writing numeric limits into NPDES permits for ballast water from commercial vessels by November 2012, under the terms of a recent settlement resolving a legal challenge to the agency’s Vessel General Permit (VGP). EPA agreed to make the change to its ballast water regulations to settle a lawsuit brought by environmental groups and the State of Michigan who claimed that EPA’s existing regulations – which do not require water quality testing – are not adequate to ensure that invasive species are not being carried between water bodies.

Background

Ballast water is water that is taken in or released by cargo vessels to compensate for changes in a ship’s weight as cargo is loaded or unloaded, or as fuel and supplies are consumed. When a vessel takes in ballast water, it also takes in aquatic organisms that may then be carried from one port to another along the vessel’s route. When ballast water is released, non-native or invasive species may be introduced into new environments where they can cause environmental harm. The zebra mussel is probably the most publicized example of an invasive species whose inadvertent introduction to U.S. waters caused unintended harmful consequences. In the Pacific Northwest, fish and wildlife agencies are also concerned about the introduction of invasive aquatic species such as smooth cordgrass, Oyster drill, European green crabs, non-native tunicates, and zebra mussels, all passengers in ballast water.

EPA developed the VGP in order to comply with a court order, and published its final permit on December 18, 2008.[1] The permit program went into effect three months later, in February 2009. It applies to all vessels which discharge ballast water or other incidental discharges into waters of the United States, except for (1) recreational vessels,[2] and (2) vessels of the armed forces.[3] Vessels that are covered under the permit include commercial fishing vessels (only for ballast water), cruise ships, research vessels, ferries, oil tankers or petroleum tankers, barges, bulk carriers, cargo ships, container ships, other cargo freighters, mobile offshore drilling units, refrigerant ships, government vessels not part of the armed forces, emergency response vessels, and any other vessels operating in a capacity of transportation.[4] For more details regarding the history of the VGP, see A. Moir, Battle of the Bilge: EPA Issues Draft NPDES Permits for Incidental Boat Discharges, Marten Law – Environmental News (July 16, 2008) and EPA General Permit for Ballast Water Discharge Goes Into Effect, Marten Law – Environmental News (February 27, 2009).

Upcoming Changes to the VGP

The VGP that is currently in effect regulates ballast water, among other incidental discharges, by establishing non-numeric effluent limits and best management practices (BMPs) to control discharges. It incorporates U.S. Coast Guard requirements for ballast water management and exchange, including mandatory saltwater flushing for vessels entering the Great Lakes after operating beyond the U.S. Exclusive Economic Zone (EEZ). In addition to the Coast Guard BMPs, the VGP requires vessels engaged in Pacific nearshore voyages that will discharge ballast water into jurisdictional waters to conduct ballast water exchanges at 50 nm from shore before arrival. Vessels must also use onshore treatment of ballast water tanks “if compatible onshore treatment for ballast water is practicable and achievable.”[5] Finally, all owner/operators of vessels equipped with ballast water tanks must comply with a number of training, documentation and reporting requirements.

In 2009, the State of Michigan and several environmental groups filed a petition for review of the VGP.[6] The groups argued that the VGP does not use a technology- or water quality-based approach as required by the Clean Water Act.[7]

On March 8, 2011, Michigan, the environmental groups, and EPA reached a settlement whereby EPA agreed to include in the next Draft VGP numeric concentration-based effluent limits for discharges of ballast water expressed as organisms per unit of ballast water volume.[8] To accomplish this, EPA has commissioned two studies from the National Academy of Sciences and EPA’s Science Advisory Board to report on, respectively 1) approaches for deriving ecologically protective numeric concentrations of organisms in ballast water discharges, and 2) the performance and availability of ballast water treatment technologies.[9] Within the settlement agreement, EPA references California’s numeric concentration-based effluent limits for ballast water discharges as a possible consideration for inclusion in the next Draft VGP.[10] To bolster effluent limits, EPA will include in the Draft VGP monitoring requirements for onboard ballast water treatment systems, specifying parameters such as treatment unit flow and pressure, active substance concentration, and indicator organisms.

The settlement agreement also requires EPA to change the Clean Water Act section 401 certification process for the VGP, which allows states to provide different, more stringent requirements for discharges into state’s waters.[11] EPA is to provide states and tribes at least 6 months after publication of the next Draft VGP to grant, grant with condition, deny, or waive certification under section 401. During that time, EPA must arrange for at least one conference call or meeting between the states on a regional level (e.g. Great Lakes, Atlantic, Pacific and Gulf) to discuss appropriate interstate coordination on the section 401 certifications.

Finally, the settlement agreement calls for EPA to propose the next draft VGP by November 30, 2011 and issue the final VGP by November 30, 2012, a full year before the current permit is scheduled to expire.

Conclusion

Vessel owners and operators that are already in compliance with the 2008 VGP should prepare to comply with more stringent, numeric-based effluent standards for ballast water such as those used by California. They should also become familiar with new technologies for ballast water treatment in the event that EPA incorporates these requirements in the next VGP. Finally, vessels should be prepared for changes that the new VGP will infuse into the already complex Clean Water Act Section 401 certification process.

For more information on water quality regulation, including ballast water and other discharges, please contact any member of Marten Law’s Water Quality practice group.