Vessel Incidental Discharge National Standards of Performance
Federal RegisterOct 26, 2020
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 139
[EPA-HQ-OW-2019-0482; FRL-10015-54-OW]
RIN 2040-AF92
Vessel Incidental Discharge National Standards of Performance
AGENCY:
Environmental Protection Agency (EPA).
ACTION:
Proposed rule.
SUMMARY:
The U.S. Environmental Protection Agency (EPA) is publishing for public comment a proposed rule under the Vessel Incidental Discharge Act that would establish national standards of performance for marine pollution control devices for discharges incidental to the normal operation of primarily non-military and non-recreational vessels 79 feet in length and above into the waters of the United States or the waters of the contiguous zone. The proposed national standards of performance were developed in coordination with the U.S. Coast Guard (USCG) and in consultation with interested Governors. The proposed standards, once finalized and implemented through corresponding USCG regulations addressing implementation, compliance, and enforcement, would reduce the discharge of pollutants from vessels and streamline the current patchwork of federal, state, and local vessel discharge requirements. Additionally, EPA is proposing procedures for states to follow if they choose to petition EPA to issue an emergency order, to review any standard of performance, regulation, or policy, to request additional requirements with respect to discharges in the Great Lakes, or to apply to EPA to prohibit one or more types of vessel discharges proposed for regulation in this rulemaking into specified waters to provide greater environmental protection.
DATES:
Comments must be received on or before November 25, 2020. Under the Paperwork Reduction Act (PRA), comments on the information collection provisions are best assured of consideration if the Office of Management and Budget (OMB) receives a copy of your comments on or before November 25, 2020.
ADDRESSES:
Submit your comments to the public docket for this proposed rule, identified by Docket No. EPA-HQ-OW-2019-0482, at
https://www.regulations.gov
. Follow the online instructions for submitting comments. All submissions received must include the Docket ID No. for this rulemaking. Comments received may be posted without change to
https://www.regulations.gov
, including any personal information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the “General Information” heading of the
SUPPLEMENTARY INFORMATION
section of this document. Out of an abundance of caution for members of the public and our staff, the EPA Docket Center and Reading Room are closed to the public, with limited exceptions, to reduce the risk of transmitting COVID-19. Our Docket Center staff will continue to provide remote customer service via email, phone, and webform. We encourage the public to submit comments via
https://www.regulations.gov
or email, as there may be a delay in processing mail and faxes. Hand deliveries and couriers may be received by scheduled appointment only. For further information on EPA Docket Center services and the current status, please visit us online at
https://www.epa.gov/dockets
.
FOR FURTHER INFORMATION CONTACT:
Jack Faulk at (202) 564-0768;
faulk.jack@epa.gov
or Katherine Weiler at (202) 566-1280;
weiler.katherine@epa.gov
of the Oceans and Coastal Management Branch (4504T), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460.
SUPPLEMENTARY INFORMATION:
This supplementary information is organized as follows:
I. Public Participation
A. How should I submit written comments?
II. Legal Authority
III. Executive Summary
IV. Background
A. Clean Water Act
B. Additional U.S. and International Authorities
C. Environmental Impacts of Discharges for Which Technology-Based Standards Would Be Established by This Rule
V. Scope of the Regulatory Action
A. Waters
B. Vessels
C. Incidental Discharges
D. Emergency and Safety Concerns
E. Effective Date
VI. Stakeholder Engagement
A. Informational Webinars and Public Listening Session
B. Post-Proposal Public Meetings
C. Consultation and Coordination With States
VII. Definitions
VIII. Development of National Discharge Standards of Performance
A. Discharges Incidental to the Normal Operation of a Vessel—General Standards
1. General Operation and Maintenance
2. Biofouling Management
3. Oil Management
4. Training and Education
B. Discharges Incidental to the Normal Operation of a Vessel—Specific Standards
1. Ballast Tanks
2. Bilges
3. Boilers
4. Cathodic Protection
5. Chain Lockers
6. Decks
7. Desalination and Purification Systems
8. Elevator Pits
9. Exhaust Gas Emission Control Systems
10. Fire Protection Equipment
11. Gas Turbines
12. Graywater Systems
13. Hulls and Associated Niche Areas
14. Inert Gas Systems
15. Motor Gasoline and Compensating Systems
16. Non-Oily Machinery
17. Pools and Spas
18. Refrigeration and Air Conditioning
19. Seawater Piping
20. Sonar Domes
C. Discharges Incidental to the Normal Operation of a Vessel—Federally-Protected Waters Requirements
D. Discharges Incidental to the Normal Operation of a Vessel—Previous VGP Discharges No Longer Requiring Control
IX. Procedures for States To Request Changes to Standards, Regulations, or Policy Promulgated by the Administrator
A. Petition by a Governor for the Administrator To Establish an Emergency Order or Review a Standard, Regulation, or Policy
B. Petition by a Governor for the Administrator To Establish Enhanced Great Lakes System Requirements
C. Application by a State for the Administrator To Establish a State No-Discharge Zone
X. Implementation, Compliance, and Enforcement
XI. Regulatory Impact Analysis
XII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs
C. Paperwork Reduction Act
D. Regulatory Flexibility Act
E. Unfunded Mandates Reform Act
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
H. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks
I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use
J. National Technology Transfer and Advancement Act
K. Executive Order 12898: Federal Actions To Address Environmental Justice in
Minority Populations and Low-Income Populations
XIII. References
I. Public Participation
A. How should I submit written comments?
EPA solicits comment on the proposed rule during the public comment period. Submit your comments, identified by Docket ID No. EPA-HQ-OW-2019-0482, at
https://www.regulations.gov
. Once submitted, comments cannot be edited or removed from the docket. EPA may publish any comment received to its public docket. Do not submit to EPA's docket at
https://www.regulations.gov
any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. To facilitate the processing of comments, commenters are encouraged to organize their comments in a manner that corresponds to the outline of this proposal; clearly explain why they agree or disagree with the proposed language; suggest alternative language; and include any technical or economic data to support their comment. For comments to be considered during the development of the final rule, comments must be received before the end of the comment period.
EPA will generally not consider comments or comment contents located outside of the primary submission (
i.e.,
on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit
https://www.epa.gov/dockets/commenting-epa-dockets
.
EPA is temporarily suspending its Docket Center and Reading Room for public visitors, with limited exceptions, to reduce the risk of transmitting COVID-19. Our Docket Center staff will continue to provide remote customer service via email, phone, and webform. We encourage the public to submit comments via
https://www.regulations.gov
as there may be a delay in processing mail and faxes. Hand deliveries or couriers will be received by scheduled appointment only. For further information and updates on EPA Docket Center services, please visit us online at
https://www.epa.gov/dockets
.
EPA continues to carefully and continuously monitor information from the Centers for Disease Control and Prevention (CDC), local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID-19.
II. Legal Authority
EPA proposes this rule under the authority of Clean Water Act Sections 301, 304, 307, 308, 312, and 501 as amended by the Vessel Incidental Discharge Act. 33 U.S.C. 1311, 1314, 1317, 1322, and 1361.
III. Executive Summary
Discharges incidental to the normal operation of a vessel, also referred to as “incidental discharges” or “discharges” in this rulemaking, can have adverse impacts on aquatic ecosystems and other potential impacts such as to human health through contamination of food from aquaculture/shellfish harvesting areas because the discharges may contain pollutants such as aquatic nuisance species (ANS), nutrients, bacteria or pathogens (
e.g., Escherichia coli
and fecal coliform), oil and grease, metals, as well as other toxic, nonconventional, and conventional pollutants (
e.g.,
organic matter, bicarbonate, and suspended solids). These pollutants can have wide-ranging environmental consequences that vary in degree depending on the type and number of vessels operating in a waterbody and the nature and extent of the discharge.
The Clean Water Act (CWA), the Nonindigenous Aquatic Nuisance Prevention and Control Act (NANPCA), the Act to Prevent Pollution from Ships (APPS), and several other federal, state, local, and international authorities have established over time various requirements for both domestic and international vessels. To clarify and streamline existing requirements, in December of 2018, the President signed into law the Vessel Incidental Discharge Act (VIDA). 33 U.S.C. 1322(p). The VIDA established a new CWA Section 312(p) titled “Uniform National Standards for Discharges Incidental to Normal Operation of Vessels.” The VIDA consolidates and restructures the existing regulatory framework for non-military (vessels of the Armed Forces) and non-recreational vessels; clarifies current and future regulatory coverage for different types of vessels; and, requires EPA and the USCG to establish national standards of performance for marine pollution control devices and corresponding implementing regulations, respectively, to prevent or reduce the discharge of pollutants from vessels.
More specifically, the new CWA Section 312(p) directs the Administrator of EPA (Administrator) to develop national standards of performance in consultation with interested Governors and with the concurrence of the Secretary of the department in which the USCG is operating (Secretary) by December 2020. With limited exceptions, the VIDA requires that the standards be at least as stringent as EPA's 2013 National Pollutant Discharge Elimination System (NPDES) Vessel General Permit (VGP) requirements established under CWA Section 402.
See
33 U.S.C. 1322(p)(4)(B)(iii) (EPA standards);
id.
(5)(A)(ii) (USCG requirements). The VIDA also requires that the standards be technology-based using a similar approach to that outlined by the CWA for setting, among other things, effluent limitation guidelines. Additionally, the VIDA requires the USCG to develop corresponding implementation, compliance, and enforcement regulations within two years after EPA publishes the national standards of performance. The USCG implementing regulations may also include requirements governing the design, construction, testing, approval, installation, and use of devices to achieve EPA national standards of performance. Importantly, requirements of EPA's VGP and the USCG's requirements under Section 110 of NANPCA remain in place until these new EPA and USCG regulations under CWA Section 312(p) are final, effective, and enforceable. In addition, the VIDA repealed the 2014 EPA NPDES Small Vessel General Permit (sVGP) and established that neither EPA nor the states shall require an NPDES permit for any discharge incidental to the normal operation of a vessel, other than ballast water, from a small vessel or fishing vessel, effective immediately upon enactment of the VIDA.
The proposed rule would establish both general and specific discharge standards of performance for approximately 82,000 international and domestic non-military, non-recreational vessels operating in the waters of the United States or the waters of the contiguous zone. The types of vessels intended to be covered under the proposed rule include, but are not limited to, public vessels of the United States, fishing vessels (for ballast water only), passenger vessels such as cruise ships and ferries, barges, tugs and tows, offshore supply vessels, mobile offshore drilling units, tankers, bulk carriers, cargo ships, container ships, and
research vessels. While most provisions are intended to apply to a wide range of vessels, the VIDA specified that fishing vessels would only be subject to ballast water provisions. 33 U.S.C. 1322(p)(2)(B)(i)(III).
The general discharge standards of performance are designed to apply to all vessels and incidental discharges covered by the rule, as appropriate, and are organized into three categories: (1) General Operation and Maintenance, (2) Biofouling Management, and (3) Oil Management. The general discharge standards of performance are preventative in nature and require best management practices (BMPs) to minimize the introduction of pollutants into the discharges, as well as the volume of discharges.
The specific discharge standards of performance would establish requirements for 20 separate discharges incidental to the normal operation of a vessel from the following pieces of equipment and systems: Ballast tanks, bilges, boilers, cathodic protection, chain lockers, decks, desalination and purification systems, elevator pits, exhaust gas emission control systems, fire protection equipment, gas turbines, graywater systems, hulls and associated niche areas, inert gas systems, motor gasoline and compensating systems, non-oily machinery, pools and spas, refrigeration and air conditioning, seawater piping, and sonar domes. These discharge-specific requirements are based on best available technology economically achievable, best conventional pollutant control technology, and best practicable technology currently available, including the use of BMPs, to prevent or reduce the discharge of pollutants into the waters of the United States or the waters of the contiguous zone.
Pursuant to the VIDA, the proposed discharge standards of performance are proposed to be at least as stringent as the VGP, with some exceptions discussed below. However, the proposed standards do not incorporate the VGP requirements verbatim. EPA is proposing changes to the VGP requirements to transition the permit requirements into national technology-based standards of performance, improve clarity, enhance enforceability and implementation, or incorporate new information and technology. In some cases, this resulted in EPA consolidating or renaming the VGP requirements to comport with the VIDA. As proposed, the similarities and differences between the requirements in the proposed discharge standards of performance and the requirements in the VGP can be sorted into three distinct groups. The first group consists of 13 proposed discharge standards that are substantially the same as the requirements of the VGP: Boilers, cathodic protection, chain lockers, decks, elevator pits, fire protection equipment, gas turbines, inert gas systems, motor gasoline and compensating systems, non-oily machinery, pools and spas, refrigeration and air conditioning, and sonar domes. These 13 proposed discharge standards encompass the intent and stringency of the VGP but include other changes in response to the VIDA (
e.g.,
extent of regulated waters, consistency across discharge standards, enforceability and legal precision, as well as minor clarifications). The second group consists of two proposed discharge standards that are consistent but slightly modified from the VGP to expand controls or provide greater language clarifications: Bilges and desalination and purification systems. The third group consists of five proposed discharge standards which contain the greatest modifications from the VGP: Ballast tanks, exhaust gas emission control systems, graywater, hulls and associated niche areas, and seawater piping. In addition, EPA is proposing to modify slightly the requirements as they apply in federally-protected waters for five discharges: Chain lockers, decks, hulls and associated niche areas, pools and spas, and seawater piping. These modifications are being proposed to address specific VIDA requirements as well as incorporate new information that has become available since the issuance of the VGP.
CWA Section 312(p) also directs EPA to establish additional discharge requirements for vessels operating in certain bodies of water, to include: The “Great Lakes,” the “Pacific Region,” and waters subject to Federal protection, in whole or in part, for conservation purposes (“federally-protected waters”). The proposed rule would establish place-based requirements to further prevent or reduce the discharge of pollutants into these waterbodies that may contain unique ecosystems, support distinctive species of aquatic flora and fauna, contend with more sensitive water quality issues, or otherwise require greater protection.
Finally, as required under CWA Section 312(p), EPA is proposing specific procedural requirements for states seeking to petition EPA to establish different discharge standards, issue emergency orders, or establish no-discharge zones.
This proposed rule, once finalized, will fulfill EPA's requirements under CWA Section 312(p) to establish technology-based national standards of performance for discharges incidental to the normal operation of primarily non-military, non-recreational vessels 79 feet in length and above. EPA solicits public comments on this proposal and the associated regulatory impact analysis, which can be found in the rulemaking docket.
IV. Background
A. Clean Water Act
EPA's regulatory regime under the CWA to address vessel discharges has changed over the years due to EPA regulations, court decisions, and new legislation. The first sentence of the Federal Water Pollution Control Act Amendments of 1972, commonly known as the CWA,
1
states, “[t]he objective of [the Act] is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. 1251(a). Section 301(a) of the CWA provides that “the discharge of any pollutant by any person shall be unlawful” unless the discharge is in compliance with certain other sections of the Act. 33 U.S.C. 1311(a). Among its provisions, the CWA authorizes EPA and other federal agencies to address the discharge of pollutants from vessels. As such, EPA established regulations to address vessel discharges authorized under CWA Section 311 (addressing oil), Section 312 (addressing sewage and discharges incidental to the normal operation of a vessel of the Armed Forces), and Section 402 (pursuant to which EPA established the NPDES VGP).
1
The FWPCA is commonly referred to as the CWA following the 1977 amendments to the FWPCA. Public Law 95-217, 91 Stat. 1566 (1977). For ease of reference, the agencies will generally refer to the FWPCA in this notice as the CWA or the Act.
From 1972 to 2005, EPA vessel regulations were primarily limited to addressing the discharge of oil and sewage under CWA Sections 311 and 312, respectively. In December of 2003, a long-standing exclusion of discharges incidental to the normal operation of vessels from the CWA Section 402 NPDES permitting program became the subject of a lawsuit in the U.S. District Court for the Northern District of California (
Nw. Envtl. Advocates
v.
U.S. Envtl. Prot. Agency,
No. C-03-05760-SI, 2005 WL 756614). The lawsuit arose from EPA's September 2003 denial of a January 1999 rulemaking petition submitted to EPA by parties concerned about the effects of ballast water discharges. Prior to the lawsuit, EPA, through a 1973 regulation, had excluded discharges incidental to the normal
operation of vessels from the CWA Section 402 permitting program. See 38 FR 13528, May 22, 1973. The petition asked the Agency to repeal its regulation at 40 CFR 122.3(a) that excludes certain discharges incidental to the normal operation of vessels from the requirement to obtain an NPDES permit. The petition asserted that vessels are “point sources” requiring NPDES permits for discharges to U.S. waters; that EPA lacks authority to exclude point source discharges from vessels from the NPDES program; that ballast water must be regulated under the NPDES program because it contains invasive plant and animal species as well as other materials of concern (
e.g.,
oil, chipped paint, sediment, and toxins in ballast water sediment); and that enactment of CWA Section 312(n) (Uniform National Discharge Standards, also known as the UNDS program) in 1996 demonstrated Congress' rejection of the exclusion.
In March 2005, the court determined the exclusion exceeded the Agency's authority under the CWA and subsequently in 2006 declared that “[t]he blanket exemption for discharges incidental to the normal operation of a vessel, contained in 40 CFR 122.3(a), shall be vacated as of September 30, 2008.”
Nw. Envtl. Advocates
v.
U.S. Envtl. Prot. Agency,
C 03-05760 SI, 2006 WL 2669042, at *15 (N.D. Cal. Sept. 18, 2006),
aff'd
537 F.3d 1006 (9th Cir. 2008). Shortly thereafter, Congress enacted two pieces of legislation to exempt discharges incidental to the normal operation of certain types of vessels from the need to obtain a permit. The first of these, entitled the Clean Boating Act of 2008 (Pub. L. 110-288, July 28, 2008), amended the CWA to provide that discharges incidental to the normal operation of recreational vessels are not subject to NPDES permitting, and created a new regulatory regime to be implemented by EPA and the USCG under a new CWA Section 312(o). The second piece of legislation provided for a temporary moratorium on NPDES permitting for discharges, excluding ballast water, subject to the 40 CFR 122.3(a) exclusion from (1) commercial fishing vessels (as defined in 46 U.S.C. 2101 and regardless of size) and (2) those other non-recreational vessels less than 79 feet in length. S. 3298, Public Law 110-299 (July 31, 2008).
In response to the court decision and the legislation, EPA issued the first VGP in December 2008 for discharges incidental to the normal operation of non-recreational, non-military vessels 79 feet in length and above. See 73 FR 79473, December 29, 2008. Additionally, in September 2014, EPA issued the sVGP for discharges from non-recreational, non-military vessels less than 79 feet. See 79 FR 53702, September 10, 2014. Upon expiration of the 2008 permit, EPA issued the second VGP in 2013. See 78 FR 21938, April 12, 2013.
After the EPA issuance of the VGP under the CWA and the USCG promulgation of regulations under the NANPCA, the vessel community expressed concerns regarding the lack of uniformity, duplication, and confusion associated with the vessel regulatory regime. See Errata to S. Rep. No. 115-89 (2019) [hereinafter VIDA Senate Report], at 3-5 (discussing these and similar concerns), available at
https://www.congress.gov/115/crpt/srpt89/CRPT-115srpt89-ERRATA.pdf
. In response, members of Congress introduced various pieces of legislation to modify and clarify the regulation and management of ballast water and other incidental vessel discharges. In December 2018, President Trump signed into law the Frank LoBiondo Coast Guard Authorization Act of 2018, which included the VIDA. Public Law 115-282, tit. IX (2018) (codified primarily at 33 U.S.C. 1322(p)). The VIDA restructures the way EPA and the USCG regulate incidental vessel discharges from non-military, non-recreational vessels and amended CWA Section 312 to include a new Subsection (p) titled “Uniform National Standards for Discharges Incidental to Normal Operation of Vessels.” CWA Section 312(p), among other things, repeals EPA's 2014 sVGP effectively immediately and requires EPA and the USCG to develop new regulations to replace the existing EPA VGP and USCG vessel discharge requirements. The VIDA also specifies that, effectively immediately upon enactment of the VIDA, neither EPA nor NPDES-authorize states may require, or in any way modify, a permit under the NPDES program for any discharge incidental to the normal operation of a vessel from a small vessel (less than 79 feet in length) or fishing vessel (of any size).
Specifically, CWA Section 312(p)(4) directs the Administrator, with concurrence of the Secretary and in consultation with interested Governors, to promulgate national standards of performance for marine pollution control devices for each type of discharge incidental to the normal operation of non-recreational and non-military vessels.
2
CWA Section 312(p)(5) also directs the Secretary to develop corresponding implementing regulations to govern the implementation, compliance, and enforcement of the national standards of performance. Additionally, CWA Section 312(p) generally preempts states from establishing more stringent discharge standards once the USCG implementing regulations required under Section 312(p)(5)(A)-(C) are final, effective, and enforceable. However, the VIDA includes several exceptions to this expressed preemption (33 U.S.C. 1322(p)(9)(A)(ii)-(v); VIDA Senate Report at 15 (discussing these exceptions)), a savings clause (33 U.S.C. 1322(p)(9)(A)(vi)), and provisions for states working directly with EPA or the USCG to seek and obtain additional requirements, including the establishment of no-discharge zones for one or more incidental discharges (33 U.S.C. 1322(p)(10)(D)). Although not part of CWA Section 312(p), the VIDA also establishes several programs to address invasive species, including the establishment of the “Great Lakes and Lake Champlain Invasive Species Program” research and development program and the “Coastal Aquatic Invasive Species Mitigation Grant Program.”
2
CWA Section 312(b) provides authority for EPA to establish federal standards of performance for sewage from vessels within the meaning of “sewage” as defined in section 312(a)(6). Thus, the discharge of sewage from vessels, is not included in this CWA section 312(p) rulemaking, except when commingled with other discharges incidental to the normal operation of a vessel, as authorized in CWA section 312(p)(2)(A)(ii). EPA and the USCG regulate sewage from vessels under CWA section 312(b) as codified in 40 CFR part 140 (marine sanitation device standard) and 33 CFR part 159 subparts A-D (requirements for the design, construction, certification, installation, and operation of marine sanitation devices).
B. Additional U.S. and International Authorities
During the development of the proposed rule, EPA reviewed other U.S. laws and international authorities that address discharges incidental to the normal operation of a vessel. The requirements established under these authorities are currently being met and implemented and therefore are technologically and economically practicable and achievable. As appropriate, EPA considered these requirements while developing this proposed rule.
As expressly provided in the VIDA, this proposed rule would not affect the requirements for vessels established under any other provision of Federal law. 33 U.S.C. 1322(p)(9)(B). EPA provides a short summary of these U.S. authorities as well as some international authorities below.
International Convention for the Prevention of Pollution From Ships, the Act To Prevent Pollution From Ships, and Implementing Regulations
The International Convention for the Prevention of Pollution from Ships (MARPOL 73/78) is an international treaty that regulates certain discharges from vessels. MARPOL Annexes regulate different types of vessel pollution; the United States is a party to Annexes I, II, III, V, and VI. MARPOL is primarily implemented in the United States by APPS, 33 U.S.C. 1901
et seq.
The USCG is the lead agency for APPS implementation and issued implementing regulations primarily found at 33 CFR part 151. Those requirements already apply to many of the vessels covered by the proposed rule.
APPS regulates the discharge of oil and oily mixtures, noxious liquid substances, and garbage, including food wastes and plastic. With respect to oil and oily mixtures, the USCG regulations at 33 CFR 151.10 prohibit “any discharge of oil or oily mixtures into the sea from a ship” except when certain conditions are met, including a discharge oil content of less than 15 parts per million (ppm) and that the ship operates oily water separating equipment, a bilge monitor, a bilge alarm, or a combination thereof.
Substances regulated as noxious liquid substances under APPS are divided into four categories based on their potential to harm marine resources and human health. Under 46 CFR 153.1128, discharges of noxious liquid substances residues at sea may only take place at least 12 nautical miles (NM) from the nearest land. Given this requirement, the proposed rule would also prohibit the discharge of noxious liquid substances within 12 NM from the nearest land.
MARPOL Annex III addresses harmful substances in packaged form and is implemented in the United States by the Hazardous Materials Transportation Authorization Act of 1994, as amended (49 U.S.C. 5901
et seq.
), and regulations appearing at 46 CFR part 148 and 49 CFR part 176. The regulatory provisions establish labeling, packaging, and stowage requirements for such materials to help avoid their accidental loss or spillage during transport. The proposed rule does not regulate loss or spillage of transported materials; however, the proposed rule would establish BMPs to help reduce or prevent the loss of materials and debris overboard.
Oil Pollution Act (33 U.S.C. 2701 et seq.)
The Oil Pollution Act of 1990 and the associated USCG implementing regulations at 33 CFR parts 155 and 157 also address oil and oily mixture discharges from vessels. These regulations establish and reinforce the 15 ppm discharge standard under APPS for oil and oily mixtures for seagoing ships and require most vessels to have an oily water separator. Oceangoing vessels of less than 400 gross tonnage as measured under the Convention Measurement System of the International Convention on Tonnage Measurement of Ships (GT ITC) (400 gross register tonnage (GRT) if GT ITC is not assigned) must either have an approved oily water separator or retain oily water mixtures on board for disposal to an approved reception facility onshore. Oceangoing vessels of 400 GT ITC (400 GRT if GT ITC is not assigned) and above, but less than 10,000 GT ITC (10,000 GRT if GT ITC is not assigned), except vessels that carry ballast water in their fuel oil tanks, must be fitted with “approved 15 parts per million (ppm) oily-water separating equipment for the processing of oily mixtures from bilges or fuel oil tank ballast.” 33 CFR 155.360(a)(1). Oceangoing ships of 10,000 gross tonnage and above and oceangoing ships of 400 gross tonnage and above that carry ballast water in their fuel oil tanks, must be fitted with approved 15 ppm oily water separating equipment for the processing of oily mixtures from bilges or fuel oil tank ballast, a bilge alarm, and a means for automatically stopping any discharge of oily mixture when the oil content in the effluent exceeds 15 ppm. 33 CFR 155.370. 33 CFR part 155 also references oil containment and cleanup equipment and procedures for preventing and reacting to oil spills and discharges. The proposed rule references or incorporates the existing requirements for fuel and oil established under the Oil Pollution Act and APPS and prohibits the discharge of oil greater than 15 ppm.
Clean Water Act Section 311 (33 U.S.C. 1321)
CWA Section 311, Oil and Hazardous Substances Liability Act, states that it is a policy of the United States that there should be no discharges of oil or hazardous substances into the waters of the United States, adjoining shorelines, and certain specified areas, except where permitted under Federal regulations (
e.g.,
the NPDES program). As such, the Act prohibits the discharge of oil or hazardous substances into these areas in such quantities as may be harmful. Further, the Act states that the President shall, by regulation, determine those quantities of oil and any hazardous substances that may be harmful if discharged. EPA defines the discharge of oil in such quantities as may be harmful as those that violate applicable water quality standards or “cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines or cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoin shorelines.” 40 CFR 110.3. Sheen is clarified to mean “an iridescent appearance on the surface of the water.” 40 CFR 110.1. The proposed rule would prohibit the discharge of oil, including oily mixtures, in such quantities as may be harmful.
Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136
et seq.
).
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) regulates the distribution, sale, and use of pesticides. One of the primary components of FIFRA requires the registration and labeling of all pesticides sold or distributed in the United States, ensuring that, if pesticides are used in accordance with the specifications on the label, they will not cause unreasonable adverse effects on humans or the environment. The proposed rule would reiterate from the VGP that any registered pesticide must be used in accordance with its FIFRA label for all activities that result in a discharge into the waters of the United States or the waters of the contiguous zone. The proposed rule does not negate the requirements under FIFRA and its implementing regulations to use registered pesticides consistent with the product's labeling. In fact, the discharge of pesticides used in violation of certain FIFRA requirements could also be a violation of these standards and therefore a violation of the CWA (
e.g.,
exceeding hull coating application rates).
National Marine Sanctuaries Act (16 U.S.C. 1431
et seq.
and Implementing Regulations Found at 15 CFR Part 922 and 50 CFR Part 404)
The National Marine Sanctuaries Act (NMSA) authorizes the designation and management of National Marine Sanctuaries to protect marine resources with conservation, education, historical, scientific, and other special qualities. Under NMSA, additional restrictions and requirements may be imposed on vessel operators who boat in and around National Marine Sanctuaries. Consistent with the VGP, the proposed rule would
establish additional restrictions and requirements for certain discharges for vessels that operate in and around National Marine Sanctuaries as these areas are included in the definition of federally-protected waters in the proposed rule as designated in Appendix A of Part 139. Pursuant to CWA Sections 312(9)(B) and (E), discharge requirements established by regulations promulgated by the Secretary of Commerce under the National Marine Sanctuaries Act would continue to apply to waters under the control of the Secretary of Commerce (
e.g.,
National Marine Sanctuaries) in addition to the standards and requirements established in this proposed rule.
C. Environmental Impacts of Discharges for Which Technology-Based Discharge Standards Would Be Established by This Rule
Discharges incidental to the normal operation of vessels can have significant adverse impacts on aquatic ecosystems and other potential impacts such as to human health through contamination of food from aquaculture/shellfish harvesting areas through the addition of pollutants (
e.g.,
metals, nutrients, bacteria, viruses, ANS). The adverse environmental impacts vary considerably based on the type and number of vessels, the size and location of the port or marina, and the condition of the receiving waters. These adverse impacts are more likely to occur when there are significant numbers of vessels operating in receiving waters with limited circulation or if the receiving waters are already impaired. As a result of this variation, protecting U.S. waters from vessel-related activities poses unique challenges for local, state, and federal governments. Targeted reduction of certain discharges or constituents of concern can significantly benefit receiving waters.
The information below provides an overview of the environmental impacts associated with the pollutants addressed in this proposed rule: ANS, nutrients, pathogens (including
Escherichia coli
and fecal coliform), oil and grease, metals, toxic and nonconventional pollutants with toxic effects, and other nonconventional and conventional pollutants.
Aquatic Nuisance Species (ANS)
ANS are a persistent problem in U.S. coastal and inland waters. ANS can include invasive plants, animals, and pathogens. The VIDA specifically includes ANS in the category of nonconventional pollutants to be regulated through the application of best available technology and best practicable technology. 33 U.S.C. 1322(p)(4)(B)(i).
ANS may be incidentally discharged or released from a vessel's operations through a variety of vessel systems and equipment, including but not limited to ballast water, sediment from ballast tanks, vessel hulls and appendages, seawater piping, chain lockers, and anchor chains. ANS pose severe threats to aquatic ecosystems, including outcompeting native species, damaging habitat, changing food webs, and altering the chemical and physical aquatic environment. Furthermore, ANS can have profound and wide-ranging socioeconomic impacts, such as damage to recreational and commercial fisheries, infrastructure, and water-based recreation and tourism. Once established, it is extremely challenging and costly to remove ANS and remediate the impacts. It has become even more critical to control discharges of ANS from vessel systems and equipment with the increase in ship traffic due to globalization and increased trade.
Nutrients
Nutrients, including nitrogen, phosphorus, and other micro-nutrients, are constituents of incidental discharges from vessels. Though often associated with discharges from sewage treatment facilities and other sources such as runoff from agricultural and urban stormwater sources, nutrients are also discharged from vessel sources such as runoff from deck cleaning, graywater, and bilgewater.
Increased nutrient discharges from anthropogenic sources are a major source of water quality degradation throughout the United States (U.S. Geological Survey, 1999). Generally, nutrient over-enrichment of waterbodies adversely impacts biological diversity, fisheries, and coral reef and seagrass ecosystems (National Research Council, 2000). One of the most notable effects of nutrient over-enrichment is the excess proliferation of plant life and ensuing eutrophication. A eutrophic system has reduced levels of dissolved oxygen, increased turbidity, and changes in the composition of aquatic flora and fauna. Such conditions also fuel harmful algal blooms, which can have significant adverse impacts on human health as well as aquatic life (National Research Council, 2000; Woods Hole Oceanographic Institute, 2007).
Pathogens
Pathogens are another constituent that can be found in discharges from vessels, particularly in graywater and ballast water discharges. Discharges of pathogens into waterbodies can adversely impact local ecosystems, fisheries, and human health. Pathogens found in untreated graywater are similar to, and in some cases may have a higher concentration than, domestic sewage entering land-based wastewater treatment plants (U.S. EPA, 2008). Specific pathogens of concern found in graywater include
Salmonella
spp.,
Escherichia coli,
enteroviruses, hepatitis, and pathogenic protists (National Research Council, 1993). Additional pathogen discharges have also been associated with ballasting operations, including
Escherichia coli,
intestinal enterococci,
Vibrio cholerae, Clostridium perfringens,
Salmonella
spp.,
Cryptosporidium
spp.,
Giardia
spp., and a variety of viruses (Knight et al., 1999; Reynolds et al., 1999; Zo et al., 1999). Pathogens can potentially even be transported in unfilled ballast water tanks (Johengen et al., 2005). Under the VIDA, bacterial and viral pathogens can qualify as “aquatic nuisance species.” 33 U.S.C. 1312(p)(1)(A), (Q), (R) (defining the related terms “aquatic nuisance species,” “nonindigenous species,” and “organism”).
Oil and Grease
Vessels can discharge a variety of oils during normal operations, including lubricating oils, hydraulic oils, and vegetable or organic oils. A significant portion of the lubricants discharged from a vessel during these normal operations directly enters the marine environment. Some types of oil and grease can be highly toxic and carcinogenic, and have been shown to alter the immune system, reproductive abilities, and liver functions of many aquatic organisms (Ober, 2010). Broadly, the toxicity of oil and grease to aquatic life is due to reduced oxygen transport potential and an inability of organisms to metabolize and excrete them once ingested, absorbed, or inhaled.
The magnitude of impact of oils differs depending on the chemical composition, method of exposure, concentration, and environmental conditions (
e.g.,
weather, salinity, temperature). It can therefore be difficult to identify one single parameter responsible for negatively impacting aquatic life. However, studies have shown that compounds with hydrocarbon chains are consistently associated with harmful impacts. Hydrocarbon chains contain strong hydrogen bonds, which do not readily break down in water. Such oils can then accumulate in the tissues of aquatic organisms and cause toxic effects.
Aromatic hydrocarbon compounds, commonly present in fuels, lubricants, and additives, are consistently associated with acute toxicity and harmful effects in aquatic biota (Dupuis and Ucan-Marin, 2015
).
Impacts are observed in both developing and adult organisms, and include reduced growth, enlarged livers, fin erosion, reproduction impairment, and modifications to heartbeat and respiration rates (Dupuis and Ucan-Marin, 2015). Laboratory experiments have shown that fish embryos exposed to hydrocarbons exemplify symptoms collectively referred to as blue sac disease (BSD). Symptoms of BSD range from reduced growth and spinal abnormalities, to hemorrhages and mortality (Dupuis and Ucan-Marin, 2015). Oils can also taint organisms that are consumed by humans, resulting in economic impacts to fisheries and potential human health effects.
In establishing the VGP, EPA considered the research efforts focused on the development of environmentally acceptable lubricants (EALs). Production of EALs focuses on using chemicals with oxygen atoms, which, unlike hydrocarbons, makes them water soluble. The solubility of EALs increases their biodegradability, thereby decreasing their accumulation in aquatic environments. The solubility of EALs also makes it easier for aquatic life to metabolize and excrete these chemicals (U.S. EPA, 2011). Overall, EALs reduce bioaccumulation potential and toxic effects to aquatic life.
Metals
Vessel discharges can contain metal constituents from a variety of on-board sources, including graywater, bilgewater, exhaust gas emission control systems, and firemain systems. While some metals, including copper, nickel, and zinc, are known to be essential to organism function when present at certain levels, many others, including thallium and arsenic, are non-essential and/or are known to have only adverse impacts. Even essential metals may harm organism function in sufficiently elevated concentrations. Some metals may also bioaccumulate in the tissues of aquatic organisms, intensifying toxic effects. Through a process called biomagnification, concentrations of some metals can increase up the food chain, leading to elevated levels in commercially harvested fish species (U.S. EPA, 2007).
Vessel hulls and appendages are frequently coated in metal-based biocides to prevent
biofouling. The most widely-used metal in biocides is copper. While it is an essential nutrient, copper can be both acutely and chronically toxic to fish, aquatic invertebrates, and aquatic plants at higher concentrations. Elevated concentrations of copper can adversely impact survivorship, growth, and reproduction of aquatic organisms (U.S. EPA, 2016). Copper can inhibit photosynthesis in plants and interfere with enzyme function in both plants and animals in concentrations as low as 4 µg/L (U.S. EPA, 2016).
Other Pollutants
Vessel discharges can contain a variety of other toxic, conventional, and nonconventional pollutants. This rule would help to prevent and control the discharge of certain pollutants that have been identified in the various discharges. For example, graywater can contain phthalates phenols, and chlorine (U.S. EPA, 2008). These compounds can cause a variety of adverse impacts on aquatic organisms and human health. Phthalates are known to interfere with reproductive health, liver, and kidney function in both animals and humans. (Sekizawa et al., 2003; DiGangi et al., 2002). Chlorine can cause respiratory problems, hemorrhaging, and acute mortality to aquatic organisms even at relatively low concentrations (U.S. EPA, 2008).
Vessel discharges may also contain certain biocides used in vessel coatings, which can be harmful to aquatic organisms. For example, cybutryne, also commonly known as Irgarol 1051, is a biocide that functions by inhibiting the electron transport mechanism in algae, thus inhibiting growth. Numerous studies indicate that cybutryne is both acutely and chronically toxic to a range of marine organisms, and in certain cases, more harmful than tributyltin (Carbery et al, 2006; Van Wezel and Van Vlaardingen, 2004).
Some vessel discharges are more acidic or basic than the receiving waters, which can have a localized effect on pH (Alaska Department of Environmental Conservation, 2007). For example, exhaust gas emission control systems remove sulfur dioxide in exhaust gas and dissolve it in washwater, where it is then ionized and produces an acidic washwater. Research has shown that even minor changes in ambient pH can have profound effects, such as developmental defects, reduced larval survivorship, and decreased calcification of corals and shellfish (Oyen et al., 1991; Zaniboni-Filho et al., 2009, Marubini and Atkinson, 1999).
V. Scope of the Regulatory Action
A. Waters
The proposed rule would apply to incidental discharges from non-military, non-recreational vessels operating in the waters of the United States or the waters of the contiguous zone. 33 U.S.C. 1322(p)(8)(B). Sections 502(7), 502(8), and 502(9) of the CWA define the terms “navigable waters,” “territorial seas,” and “contiguous zone,” respectively. The term “navigable waters” means the waters of the United States including inland waters and the territorial seas, where the United States includes the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the Trust Territories of the Pacific Islands. The term “territorial seas” means the belt of seas that extends three miles seaward from the line of ordinary low water along the portion of the coast in direct contact with the open sea and the line marking the seaward limit of inland waters. The term “contiguous zone” means the entire zone established or to be established by the United States under Article 24 of the Convention of the Territorial Sea and the Contiguous Zone.
B. Vessels
The proposed rule would apply to discharges incidental to the normal operation of a vessel as set forth in CWA Section 312(p)(2). The proposed rule would not apply to discharges incidental to the normal operation of a vessel of the Armed Forces subject to CWA Section 312(n); a recreational vessel subject to CWA Section 312(o); a small vessel less than 79 feet in length or a fishing vessel, except that the proposed rule would apply to any discharge of ballast water from a small vessel or fishing vessel; or a floating craft that is permanently moored to a pier, including a floating casino, hotel, restaurant, or bar. The types of vessels intended to be covered under the proposed rule include, but are not limited to, public vessels of the United States, commercial fishing vessels (for ballast water only), passenger vessels such as cruise ships and ferries, barges, tugs and tows, offshore supply vessels, mobile offshore drilling units, tankers, bulk carriers, cargo ships, container ships, and research vessels. EPA estimates that the domestic and international vessel population that would be subject to the proposed national standards of performance is approximately 82,000 vessels. The proposed rule also would not apply to
a narrow category of ballast water discharges that Congress believed do not pose a risk of spreading or introducing ANS (VIDA Senate Report, at 10), or to any discharges that result from (or contain material derived from) an activity other than the normal operation of a vessel (33 U.S.C. 1322(p)(2)(B)(iii)). Unless otherwise provided by CWA Section 312(p), any incidental discharges excluded from regulation in the VIDA remain subject to the pre-enactment status quo (
e.g.,
State law, NPDES permitting, etc.). VIDA Senate Report, at 10.
The national standards of performance proposed herein apply equally to new and existing vessels except in such cases where the proposed rule expressly distinguishes between such vessels as authorized by CWA Section 312(p)(4)(C)(ii).
C. Incidental Discharges
EPA proposes to establish general as well as specific national standards of performance for discharges incidental to the normal operation of a vessel described in CWA Section 312(p)(2). The general standards would be applicable to all vessels and incidental discharges subject to the proposed rule to the extent that the requirements are appropriate for each incidental discharge. The specific standards would be applicable to specific incidental discharges from the normal operation of the following types of vessel equipment and systems: Ballast tanks, bilges, boilers, cathodic protection, chain lockers, decks, desalination and purification systems, elevator pits, exhaust gas emission control systems, fire protection equipment, gas turbines, graywater systems, hulls and associated niche areas, inert gas systems, motor gasoline and compensating systems, non-oily machinery, pools and spas, refrigerators and air conditioners, seawater piping, and sonar domes.
D. Emergency and Safety Concerns
The VIDA recognizes that safety of life at sea and other emergency situations not resulting from the negligence or malfeasance of the vessel owner, operator, master, or person in charge may arise, and that the prevention of loss of life or serious injury may require operations that would not otherwise be consistent with these standards. Therefore, it is reasonably likely that no person would be found to be in violation of the proposed rule under the affirmative defense described in CWA Section 312(p)(8)(C). The corresponding USCG implementing regulations would include language to address vessel emergency and safety considerations.
E. Effective Date
The proposed national standards of performance, once finalized, would become effective beginning on the date upon which the regulations promulgated by the Secretary pursuant to CWA Section 312(p)(5) governing the implementation, compliance, and enforcement of the national standards of performance become final, effective, and enforceable. Per CWA Section 312(p)(3)(c), as of that date, the requirements of the VGP and all regulations promulgated by the Secretary pursuant to Section 1101 of the NANPCA (16 U.S.C. 4711) (as in effect on December 3, 2018), including the regulations contained in subparts C and D of part 151 of title 33, Code of Federal Regulations, and 46 CFR 162.060 (as in effect on December 3, 2018), shall be deemed repealed and have no force or effect. Similarly, as of that same date, any CWA Section 401 certification requirement in Part 6 of the 2013 VGP, shall be deemed repealed and have no force or effect.
VI. Stakeholder Engagement
During the development of the proposed rule, EPA and the USCG reached out to other federal agencies, states, tribes, non-governmental organizations, and the maritime industry. Detailed documentation of the stakeholder outreach prior to the proposal is in the public docket for the proposed rulemaking. EPA also intends to hold stakeholder engagement opportunities during the proposed rule public comment period. General summaries of the outreach are included in this section and in section XII. Statutory and Executive Order Reviews.
A. Informational Webinars and Public Listening Session
EPA, in coordination with the USCG, hosted two informational webinars on May 7 and 15, 2019 to enhance public awareness about the VIDA and provide opportunity for engagement. During the webinars, EPA and the USCG provided a general overview of the VIDA, discussed interim and future discharge requirements, described future state and public engagement opportunities, and answered clarifying questions raised by the audience. The webinar recordings and presentation material are available at
https://www.epa.gov/vessels-marinas-and-ports/vessel-incidental-discharge-act-vida-engagement-opportunities
.
Additionally, EPA, in coordination with the USCG, hosted a public, in-person listening session at the U.S. Merchant Marine Academy in New York on May 29-30, 2019. At the listening session, EPA with the support of the USCG, provided an overview of the VIDA, described the interim requirements and the framework for the future regulations, and conducted sessions on key vessel discharges to provide an opportunity for public input. Fifty-two individuals from a variety of stakeholder groups attended and provided input. Public input largely centered on ballast water management systems, including testing methods and monitoring requirements. Stakeholders requested harmonization of domestic regulations with those of the International Maritime Organization (IMO), such as standards for exhaust gas emission control systems. Input was also received on challenges with compliance and reporting under the VGP and the USCG ballast water regulations. The meeting agenda and a summary of the comments received are available in the public docket for this proposed rulemaking.
B. Post-Proposal Public Meetings
During the public comment period for this proposed rule, EPA intends to hold public meetings to provide an opportunity for stakeholders to ask questions about the proposed rule and describe procedures for submitting formal comments on the rule. Details for these public meetings will be made available at
https://www.epa.gov/vessels-marinas-and-ports/vessel-incidental-discharge-act-vida-engagement-opportunities
.
C. Consultation and Coordination With States
1. Federalism Consultation
Pursuant to the terms of Executive Order 13132, on July 9, 2019 in Washington, DC, EPA and the USCG conducted a Federalism consultation briefing to allow states and local officials to have meaningful and timely input into EPA rulemaking for the development of the national standards of performance. Additional information regarding the VIDA Federalism Consultation can be found in section XII. Statutory and Executive Order Reviews.
2. Governors Consultation
CWA Section 312(p)(4)(A)(iii)(II) directs EPA to develop a process for soliciting input from interested Governors to allow interested Governors to inform the development of the national standards of performance, including sharing information relevant to the process. On July 10 and 18, 2019, EPA and the USCG, with the support and assistance of the National
Governors Association, held meetings with Governor representatives to provide an overview of the VIDA, discuss state authorities under the VIDA, and solicit input on a process that would meet both the statutory requirements and state needs. Based on this input, EPA developed its “Governors' input process” for this rulemaking. Thirteen states (Alaska, California, Hawaii, Maryland, Michigan, Minnesota, New York, North Carolina, Ohio, Puerto Rico, Virginia, Washington, and Wisconsin) participated in the process as did representatives from the Western Governors Association, the Pacific States Marine Fisheries Commission, and the All Islands Coral Reef Committee.
EPA developed the VIDA Governors' input process to outline EPA's intended approach to engage with the states and address their expressed interest for multiple enhanced engagement opportunities (possibly regionally-based), additional details regarding the direction of the proposed standards, and ultimately, more involvement in the development of the national standards of performance.
The Governors' input process included three regional, web-based forums for Governors and their representatives to inform EPA on the challenges and concerns associated with existing requirements under the VGP and to discuss potential considerations for key discharges of interest. The three regional, web-based forums were held on September 10 (Western States), September 12, (Great Lakes States) and September 19 (All States), 2019. During each forum subject-matter experts from EPA provided a brief background on the VIDA followed by organized discussions regarding the key discharges identified by the regional representatives prior to the forum. During the organized discussions, interested Governors' representatives commented on the presentation content, shared applicable scientific or technical information, and provided suggested options for EPA to consider during the development of the national standards of performance. In addition to the verbal input provided during the three regional, web-based forums, EPA accepted written comments. Copies of those written comments are included in the public docket for this proposed rule.
Additionally, EPA held two follow-up calls with representatives from the Great Lakes states on December 18, 2019. During each call, EPA addressed the comments that had been submitted by Great Lakes states, including comments on specific requirements of the VIDA, non-ballast water discharges, and best available technology as it relates to ballast water treatment systems. Representatives from Michigan, New York, Wisconsin, Pennsylvania, Illinois, Minnesota, and Ohio attended the calls.
EPA also held a follow-up call with representatives from the West Coast states on January 15, 2020. During the call, EPA addressed the comments that had been submitted by West Coast states, including comments on outreach and engagement, the best available technology analysis for ballast water treatment systems, and regulation of biofouling and in-water cleaning and capture devices. Representatives from the states of California, Hawaii, Oregon, and Washington, as well as representatives from the Pacific States Marine Fisheries Commission and the Western Governors Association attended the call.
In conjunction with the requirement to engage states in the development of the proposed standards, CWA Section 312(p)(4)(A)(iii)(III) provides for governors to formally object to a proposed national standard of performance. As detailed in CWA Section 312(p)(4)(A)(iii)(III), an interested Governor may submit to the Administrator a written, detailed objection to the proposed national standard of performance, describing the scientific, technical, and operational factors that form the basis of the objection. Before finalizing a national standard of performance for which there has been an objection from one or more interested Governors, the Administrator shall provide a written response to the objection detailing the scientific, technical, or operational factors that form the basis for that standard.
To be considered an objection by the Administrator under CWA Section 312(p)(4)(A)(iii)(III)(aa), an objection letter from the Governor must:
• Be submitted in writing to the Administrator;
• Be signed by the Governor;
• Clearly state the proposed standard that is the subject of the objection;
• Describe the scientific, technical, or operational factors that indicate why the proposed standard does not represent the best practicable control technology currently available (BPT), best conventional pollutant control technology (BCT), and/or best available technology economically achievable (BAT) to address the conventional pollutants, toxic pollutants, and nonconventional pollutants contained in the discharge; and
• Include the scientific, technical, or operational factors that indicate what BPT, BCT, and BAT is available that should be included in the proposed standard to address the conventional pollutants, toxic pollutants, and nonconventional pollutants contained in the discharge.
In addition, to facilitate EPA's due consideration of any objections within a timeframe that would enable EPA to meet its statutory deadline for this rulemaking, EPA requests that any Governor's objection be submitted within 60 days of the published Notice of Proposed Rulemaking.
Pursuant to CWA Section 312(p)(4)(A)(iii)(III)(bb), the Administrator's response would:
• Be provided in writing to each interested Governor prior to publication of the final rule;
• Be signed by the Administrator; and
• Include the scientific, technical, or operational factors that form the basis for the proposed standard.
3. Comments (Federalism Consultation and Governors' Consultation Comments)
During the engagement with states, EPA received pre-proposal comments from states, governors, and governors' representatives. EPA received comments submitted by representatives from Hawaii, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, Puerto Rico, U.S. Virgin Islands, Florida, California, Washington, Oregon, Wisconsin, Michigan, Minnesota, and the Western Governors Association. The pre-proposal comments primarily focused on ballast water, biofouling, and the state engagement process. These comments can be found in the public docket for this proposed rule.
VII. Definitions
The proposed rule includes definitions for several statutory, regulatory, and technical terms. These definitions apply solely for the purposes of the proposed rule and do not affect the definition of any similar terms used in any other context. By including these definitions, EPA has, where possible, relied on existing definitions from other laws, regulations, and the VGP to provide consistency with existing requirements. Many of the proposed definitions are taken either verbatim or with minor clarifying edits from the VIDA, the legislation upon which this proposed rule is based. This includes definitions for: ANS, ballast water, ballast water exchange, ballast water management system, Captain of the Port (COTP) Zone, commercial vessel—as that term is used for vessels operating within the Pacific Region, empty ballast tank, Great Lakes State, internal waters, live or living, marine pollution control device, organism, Pacific Region, port or
place of destination, render nonviable, saltwater flush, Secretary, small vessel or fishing vessel (and the term “fishing vessel” to direct the reader to the definition of “small vessel or fishing vessel”), and VGP.
To provide additional clarity for certain proposed standards, if terms were not defined in the VIDA, the proposed rule includes definitions from other sections of the CWA, USCG regulations, the VGP, and other regulations. Additionally, EPA is proposing to include new definitions for federally-protected waters, fouling rating, marine growth prevention system, mid-ocean, and oil-to-sea interface. Terms not defined in the proposed rule have the meaning defined under the CWA and any applicable regulations.
VIII. Development of National Discharge Standards of Performance
The CWA established a two-step process for implementation of increasingly stringent limitations. The first step, to be accomplished by July 1, 1977, required compliance with standards based on “the application of the best practicable control technology currently available [BPT] as defined by the Administrator. . . .” 33 U.S.C. 1311(b)(1)(A). The second step, to be accomplished by July 1, 1987, required compliance with standards based on application of the “best available technology economically achievable [BAT] for such category or class. . . .” 33 U.S.C. 1311(b)(2)(A). The CWA, as amended in 1977, replaced the BAT standard with a new standard, “best conventional pollutant control technology [BCT],” but only for certain so-called “conventional pollutants” (
i.e.,
total suspended solids, oil and grease, biochemical oxygen demand (BOD
5
), fecal coliform, and pH). 33 U.S.C. 1311(b)(2)(E) (1976 ed., Supp. III). Section 312(p)(4)(B)(i) of the VIDA requires the national standards of performance promulgated for conventional pollutants, toxic pollutants, and nonconventional pollutants (including ANS) be developed using the same statutory framework as applied to the VGP. Specifically, the national standards of performance developed under the VIDA for all categories and classes of vessels must require the application of best practicable control technology currently available (BPT) for conventional, toxic, and nonconventional pollutants; best conventional pollutant control technology (BCT) for conventional pollutants; and best available technology economically achievable (BAT) for toxic and nonconventional pollutants (including ANS), which will result in reasonable progress toward the national goal of eliminating the discharge of all pollutants. 33 U.S.C. 1322(p)(4)(B)(i). The VIDA specifically adopts by reference the existing BPT, BCT, and BAT standards defined elsewhere in the CWA at Sections 301(b) and 304(b). 33 U.S.C. 1322(p)(1)(F), (G), (I). CWA Section 312(p)(4)(B)(ii) also directs EPA to use BMPs to control or abate any discharge incidental to the normal operation of a vessel if numeric discharge standard standards are infeasible or if the BMPs are reasonably necessary to achieve the standards or to carry out the purpose of reducing and eliminating the discharge of pollutants.
In addition, CWA Section 312(p)(4)(B) establishes minimum requirements for the national standards of performance such that, “the combination of any equipment or best management practice . . . shall not be less stringent than” the effluent limits and related requirements established in parts 2.1, 2.2, or 5 of the VGP. 33 U.S.C. 1322(p)(4)(B)(iii). Thus, while the statute directs EPA to set the national standards of performance at the level of BPT/BCT/BAT, depending on the pollutant, it also creates a presumption that those standards would provide protection at least equivalent to the VGP requirements absent one of the exceptions at CWA Section 312(p)(4)(D)(ii)(II) for situations where either new information becomes available that “would have justified the application of a less-stringent standard” or “if the Administrator determines that a material technical mistake or misinterpretation of law occurred when promulgating the existing standard.” Absent one of those exceptions, the statute directs that EPA “shall not revise a standard of performance . . . to be less stringent than an applicable existing requirement.” 33 U.S.C. 312(p)(4)(D)(ii)(I).
EPA endeavored to identify instances where the BPT/BCT/BAT level of control called for new, more stringent options for the national standards of performance; however, where EPA identified no such new information or options, EPA is continuing to rely on the BPT/BCT/BAT analysis that led to the development of the VGP requirements. This approach is consistent with EPA's obligations under CWA Section 312(p)(4) for the following reasons. The effluent limits that EPA adopted in the VGP were already the product of a BPT/BCT/BAT analysis described in the permit fact sheets for both the 2008 and 2013 iterations of the VGP and corresponding supporting materials. The text of CWA Section 312(p)(4)(D)(ii) prohibits EPA from “revis[ing] a standard of performance. . . to be less stringent than an applicable existing requirement.” There is a narrow exception for instances where EPA identifies absent new information or technical or legal error in the VGP analysis. Absent such exception, the VIDA prohibits EPA from identifying a less stringent option as BPT/BCT/BAT. Indeed, by identifying the VGP as the minimum requirements for the national standards of performance and then expressly identifying the circumstances under which EPA could select a different, less stringent standard (
i.e.,
new information or error), the text and legislative history of the VIDA show that Congress intended to preserve the existing VGP requirements as a regulatory floor. VIDA Senate Report, at 12 (“The exceptions to this provision [for new information and technical or legal error] would provide the sole basis for the Administrator to weaken standards of performance compared to the legacy VGP requirements. . . .”). Moreover, Congress did not intend for EPA to depart from the considerations that informed the VGP. To the contrary, although the VIDA is a permit-less regime, Congress defined BPT, BCT, and BAT with “intentional[] cross-reference[s]” to where those terms are used elsewhere in the CWA “to ensure that the Administrator makes identical considerations when setting the standards of performance under CWA Section 312(p) as the Administrator was previously required to do when setting technology-based effluent limits for permits” like in the VGP. VIDA Senate Report, at 11. It is significant that Congress gave EPA only a two-year deadline to develop the national standards of performance for marine pollution control devices for each type of discharge incidental to the normal operation of a vessel that is subject to regulation under the VIDA. The VGP requirements address more than 30 such discharges and given the short timeframe that Congress set forth for this task, EPA did not think it was necessary or appropriate to re-analyze the marine pollution control device standards for which there have not been meaningful changes in technology or practice since EPA last undertook a BPT/BCT/BAT analysis. In contrast to this initial promulgation of standards, Congress established a significantly longer five-year cycle for review and, if appropriate, future revision of the initial standards. 33 U.S.C. 1322(p)(4)(D)(i).
While EPA is, for most of the discharges addressed in this
rulemaking, relying on the BPT/BCT/BAT analysis that was performed to develop the VGP, EPA is not incorporating the VGP requirements verbatim. In many cases, EPA proposes change to translate the VGP discharge requirements into national standards of performance or otherwise improve the clarity to enhance implementation and enforceability. As the proposed changes do not materially differ from the requirements established in the VGP, EPA can reasonably rely on the BPT/BCT/BAT analysis that supported the VGP to develop the new proposed standards under the VIDA.
Where EPA research identified new alternatives or new options for marine pollution control devices, EPA evaluated those options as candidates for new BPT/BCT/BAT requirements. The CWA requires consideration of BPT for conventional, toxic, and nonconventional pollutants. CWA Section 304(a)(4) designates the following as conventional pollutants: Biochemical oxygen demand, total suspended solids, fecal coliform, pH, and any additional pollutants defined by the Administrator as conventional. The Administrator designated oil and grease as an additional conventional pollutant on July 30, 1979. 40 CFR 401.16. Toxic pollutants (
e.g.,
toxic metals such as arsenic, mercury, selenium, and chromium; toxic organic pollutants such as benzene, benzo-a-pyrene, phenol, and napthalene) are those outlined in CWA Section 307(a) and subsequently identified in EPA regulations at 40 CFR 401.15 and 40 CFR part 423 Appendix A. All other pollutants are nonconventional.
In determining BPT, under CWA Sections 301(b)(1)(A) and 304(b)(1)(B), and 40 CFR 125.3(d)(1), EPA evaluates several factors. EPA first considers the cost of application of technology in relation to the effluent reduction benefits. The Agency also considers the age of equipment and facilities, the processes employed, engineering aspects of various types of control technologies, process changes, non-water quality environmental impacts (including energy requirements), and such other factors as the Administrator deems appropriate. If, however, existing performance is uniformly inadequate within an industrial category, EPA may establish limitations based on higher levels of control if the Agency determines that the technology is available in another category or subcategory and can be practically applied to this industrial category.
The 1977 amendments to the CWA required EPA to identify effluent reduction levels for conventional pollutants associated with BCT for discharges from existing industrial point sources. 33 U.S.C. 1311(b)(2)(E); 1314(b)(4)(B); 40 CFR 125.3(d)(2). In addition to considering the other factors specified in CWA Section 304(b)(4)(B) to establish BCT requirements, EPA also considers a two-part “cost-reasonableness” test. EPA explained its methodology for the development of BCT requirements in 1986. See 51 FR 24974, July 9, 1986.
For toxic pollutants and nonconventional pollutants, EPA promulgates discharge standards based on BAT. 33 U.S.C. 1311(b)(2)(A); 1314(b)(2)(B); 40 CFR 125.3(d)(3). In establishing BAT, the technology must be technologically “available” and “economically achievable.” The factors considered in assessing BAT include the cost of achieving BAT effluent reductions, the age of equipment and facilities involved, the process employed, potential process changes, non-water quality environmental impacts, including energy requirements, and other such factors as the Administrator deems appropriate. EPA retains considerable discretion in assigning the weight accorded to these factors.
See Weyerhaeuser Co
v.
Costle,
590 F.2d 1011, 1045 (D.C. Cir. 1978). BAT discharge standards may be based on effluent reductions attainable through changes in a facility's processes and operations. Where existing performance is uniformly inadequate, BAT may reflect a higher level of performance than is currently being achieved within a subcategory based on technology transferred from a different subcategory or category.
Am. Paper Inst.
5 V.
Train,
539 F.2d 328, 353 (D.C. Cir. 1976);
Am. Frozen Food Inst.
V.
Train
, 539 F.2d 107, 132 (D.C. Cir. 1976). BAT may be based upon process changes or internal controls, even when these technologies are not common industry practice.
The proposed rule contains discharge standards that correspond to required levels of technology-based control (BPT, BCT, BAT) for discharges incidental to the normal operation of a vessel, as required by the CWA. As noted above, some discharge standards have been established by examining other existing laws and requirements (
e.g.,
Oil Pollution Act, APPS, and the Clean Hull Act). Where these laws already exist, it was deemed feasible for the operators to implement these practices as part of the proposed standards because these are demonstrated practices that EPA found to be technologically available and economically practicable (BPT) or achievable (BAT). For example, the proposed standards reaffirm requirements of the Clean Hull Act that coating on vessel hulls must not contain TBT or any other organotin compound used as a biocide. In some cases, such as with certain discharges of oils, graywater from passenger vessels, and ballast water, numeric discharge standards are being proposed. In assessing the availability and achievability of the technologies discussed herein, in addition to the rationale for the VGP effluent limits, EPA considered studies and data from both domestic and international sources including studies and data from foreign-flagged vessels as appropriate.
Additionally, EPA is proposing that two of the VGP-named discharges do not require specific discharge requirements beyond the general discharge requirements in Subpart B. EPA acknowledges that discharges from motor gasoline and compensating systems and inert gas systems are indeed discharges incidental to the normal operation of a vessel; however, EPA determined that the requirements outlined in the general discharge standards section in Subpart B of the proposed rule are sufficient and at least as stringent as the VGP.
A. Discharges Incidental to the Normal Operation of a Vessel—General Standards
This section describes the proposed national standards of performance associated with the general discharge requirements proposed in 40 CFR part 139, subpart B. These proposed standards are designed to apply to all vessels and incidental discharges subject to the proposed rule to the extent the requirements are appropriate for each incidental discharge. These proposed standards are proactive and preventative in nature and are designed to minimize the introduction of pollutants into the waters of the United States and the waters of the contiguous zone. These proposed standards are based on EPA's analysis of available and relevant information, including available technical data, existing statutes and regulations, statistical industry information, and research studies included in the public docket for this proposed rule.
1. General Operation and Maintenance
The first category of proposed national standards of performance would establish requirements associated with the general operation and maintenance vessel practices that are designed to eliminate or reduce the discharge of pollutants. EPA considers these proposed requirements to be consistent with the VGP requirements
and provides a consolidation of requirements from many subparts within Part 2 of the VGP. The first requirement proposes that all discharges covered under this rulemaking be minimized. For purposes of this proposed rule and consistent with the technology-based requirements of the CWA, EPA is proposing to clarify the term “minimize” to mean to reduce or eliminate to the extent achievable using any control measure that is technologically available and economically practicable and achievable and supported by demonstrated BMPs such that compliance can be documented in shipboard logs and plans as determined by the Secretary (that is, the Secretary of the department in which the USCG is operating). The “minimize” requirement is included pursuant to the CWA Section 312(p)(2)(H) definition of BMP within the technology-based BPT/BCT/BAT analysis. Minimizing discharges provides a reasonable approach by which EPA, the regulated community, and the public can determine and evaluate appropriate control measures for vessels to control all specific discharges identified in 40 CFR part 139, subpart B of this proposed rulemaking. To minimize discharges, operators should consider the use of reception facilities, storage onboard the vessel, or reduced production of pollutants to be discharged. For some vessel discharges, such as for graywater, minimization of pollutants in those discharges can be achieved without using highly engineered, complex treatment systems. Other vessel discharges, such as ballast water, may require more complex behavioral practices such as saltwater flushing or ballast water exchange.
The proposed general operation and management standard would also include provisions from the VGP (Parts 2.2.2 and 5.3.1.2) that are intended to minimize the discharges from vessels to nearshore waters by requiring, to the extent practicable, that vessels discharge while underway and as far from shore as practical.
The proposed general operation and management standard also would include requirements that limit the types and quantities of materials discharged. For one, EPA is clarifying that the addition of any materials to an incidental discharge, other than for treatment of the discharge, that is not incidental to the normal operation of the vessel, is prohibited as is using dilution to meet any effluent discharge standards. EPA is also proposing a requirement specifying that only the amount of a material (
e.g.,
disinfectant, cleaner, biocide, coating, sacrificial anode) necessary to perform its intended function is authorized to be used if its residue could be discharged and that any such materials used do not contain biocides or toxic or hazardous materials banned for use in the United States. Also, EPA is proposing to prohibit the discharge of any material used that will be subsequently discharged that contains any materials banned for use in the United States. For any pesticide products (
e.g.,
biocides, anti-microbials) subject to FIFRA registration, vessel operators must follow the FIFRA label for all activities that result in a discharge into the waters of the United States or the waters of the contiguous zone.
The presence or use of toxic or hazardous materials may be necessary for the operation of vessels. For purposes of the proposed rule, the term “Toxic or Hazardous Materials” means any toxic pollutant identified in 40 CFR 401.15 or any hazardous material as defined in 49 CFR 171.8. EPA is proposing requirements for how toxic or hazardous materials are managed to minimize the potential for discharge of these materials. Toxic or hazardous material containers must be appropriately sealed, labeled, and secured, and located in an area of the vessel that minimizes exposure to ocean spray and precipitation consistent with vessel design. Materials that may not be considered toxic in small concentrations could pose an environmental threat if significant amounts are washed overboard, particularly in shallow or impaired waters. Wastes should be managed in accordance with any applicable local, state, and federal regulations, which are outside of the scope of this proposed rule. For example, the Resource Conservation and Recovery Act (RCRA) governs the generation, transportation, storage, and disposal of solid and hazardous wastes.
Therefore, the proposed rule would require that all vessel operators practice good environmental stewardship by minimizing any exposure of cargo or other onboard materials that may be inadvertently discharged by containerizing or covering materials with a tarp, and generally limiting any exposure of these materials to wind, rain, or spray. The proposed rule acknowledges that these requirements would apply unless the vessel operator reasonably determines this would interfere with essential vessel operations or safety of the vessel or doing so would violate any applicable regulations that establish specifications for safe transportation, handling, carriage, and storage of toxic or hazardous materials. Also, to avoid discharges and prevent emergency or other dangerous situations, the proposed standard would require that containers holding toxic or hazardous materials not be overfilled and incompatible materials not be mixed in containers.
Like the requirements related to toxic and hazardous materials, the proposed standard would also require control measures to prevent or minimize the overboard discharge of cargo, on-deck debris, garbage, and residue and would prohibit the jettisoning of cargo or toxic or hazardous materials. EPA proposal would also require vessel operators to clean out cargo residues (
i.e.,
broom clean or equivalent) from any cargo compartment or tank prior to discharging washwater from such areas overboard. EPA is proposing that these material management measures be followed to minimize the discharge of pollutants.
The proposed rule would also require vessel operators to maintain their topside surface (
i.e.,
outer surfaces above the waterline) in a manner that minimizes the discharge of rust (and other corrosion by-products), cleaning compounds, paint chips, non-skid material fragments, and other materials associated with exterior topside surface preservation. Additionally, this EPA standard proposes that coating techniques selected for any topside surfaces must minimize the residual paint and coating entering the water and that the discharge of any unused paints and coatings is prohibited.
The last proposed general operation and maintenance requirement specifies that any equipment that is expected to release, drip, leak, or spill oil or oily mixtures, fuel, or other toxic or hazardous materials that may be discharged or drained or pumped to the bilge, must be maintained regularly to minimize the discharge of pollutants. As with other requirements in the proposed general operation and maintenance standard, EPA considers this requirement to be consistent with the bilgewater requirements in Part 2.2.2 of the VGP.
2. Biofouling Management
Vessel biofouling is the accumulation of aquatic organisms such as plants, animals, and micro-organisms on vessel equipment or systems submerged or exposed to the aquatic environment. Biofouling can be broadly separated into microfouling, which consists of microscopic organisms including bacteria and diatoms, and macrofouling, which consists of large, distinct multicellular organisms visible to the
human eye, such as barnacles, tubeworms, or fronds of algae. Studies suggest that biofouling on vessel equipment and systems is one of the main vectors for the introduction and spread of ANS (Drake and Lodge, 2007; Gollasch, 2002; Hewitt and Campbell, 2010; Hewitt et al., 2009). Biofouling also produces drag on a vessel hull and protruding niche areas, requiring greater fuel consumption and increased greenhouse gas emissions. It can additionally result in hull corrosion and blockage of internal piping, such as the engine cooling and firemain systems, thereby degrading the integrity of the vessel structure and impeding safe operation.
EPA understands the statutory definition of “discharge incidental to the normal operation of a vessel” (incidental discharge) at 33 U.S.C.1322(a)(12) to include any discharge of biofouling organisms from vessel equipment and systems. Consistent with the VGP discharges of biofouling organisms from vessel equipment and systems while the vessel is immersed or exposed to the aquatic environment are incidental to the normal operation of a vessel. Such discharges during normal operation of the vessel include, but are not limited to, those from maintenance and cleaning activities of hulls, niche areas, and associated coatings. EPA included management requirements to minimize the discharge of biofouling organisms from vessel equipment and systems in both the VGP and the discharge regulations for the vessels of the Armed Forces. 33 U.S.C. 1322(n)). The VGP in Parts 2.2.23 and 4.1.3, respectively, required that vessel operators minimize the transport of attached living organisms and conduct annual inspections of the vessel hull, including niche areas, for fouling organisms. Part 4.1.4 of the VGP also required vessel operators to prepare drydock inspection reports noting that the vessel hull and niche areas had been inspected for attached living organisms and those organisms had been removed or neutralized and make these reports available to EPA or an authorized representative of EPA upon request. With one of the legislative purposes of the VIDA being to establish uniform national incidental discharge regulations that are as stringent as the VGP, except in those circumstances specified by the VIDA in CWA Section 312(p)(4)(D)(ii)(II), EPA is proposing to include requirements for the discharge of biofouling organisms from vessel equipment and systems in this rulemaking.
The proposed rule would require each vessel to develop and follow a biofouling management plan with a goal to prevent macrofouling, thereby minimizing the potential for the introduction and spread of ANS. A biofouling management plan that would be consistent with the VGP and fulfill the purpose of the proposed rule is one that provides a holistic strategy that considers the operational profile of the vessel, identifies the appropriate antifouling systems, and details the biofouling management practices for specific areas of the vessel. The details of the plan will be established by the Secretary, although the plan elements must prioritize procedures and strategies to prevent macrofouling.
While the VGP does not explicitly require a biofouling management plan, it requires the majority of the components of the proposed biofouling management plan individually, such as the consideration of vessel class, operations, and biocide release rates and components in the selection of antifouling systems, an annual inspection of the vessel hull and niche areas for assessment of biofouling organisms and condition of anti-fouling paint, a drydock inspection report noting that the vessel hull and niche areas have been inspected for biofouling organisms and those organisms have been removed or neutralized, reporting of cleaning schedules and methods, and appropriate disposal of wastes generated during cleaning operations. Additionally, according to the Clean Hull Act of 2009, every vessel engaging in one or more international voyages is required to carry an antifouling system certificate that contains the details of the antifouling system. Moreover, under the National Invasive Species Act, the USCG requires the individual in charge of any vessel equipped with ballast water tanks that operates in the waters of the United States to maintain a ballast water management plan that has been developed specifically for the vessel and that will allow those responsible for the plan's implementation to understand and follow the vessel's ballast water management strategy and comply with the requirements. The ballast water management plan must also include detailed biofouling maintenance and sediment removal procedures (33 CFR 151.2050(g)(3)). According to guidance issued by the USCG on these regulations, such procedures constitute a “Biofouling Management and Sediment Plan.” Under this guidance, the USCG advised that IMO Resolution Marine Environment Protection Committee (MEPC) 207(62) provides a basis for developing and implementing a vessel-specific biofouling management plan.
Developing individual biofouling management plans for vessels is important because vessels can vary widely in operational profile and, therefore, in the extent and type of biofouling. EPA recognizes, however, that vessels with similar operational profiles, such as vessels that cross the same waterbodies, travel at similar speeds, and share the same design, may also employ the same management measures, such as selecting the same types of antifouling systems, and applying the same inspection and cleaning schedules. EPA anticipates that fleet owners may develop a biofouling management plan template that can be readily adapted into a vessel-specific biofouling management plan.
3. Oil Management
The proposed rule aims to minimize discharges of oil, including oily mixtures. The proposed standard would require vessel operators to use control and response measures to minimize and contain spills and overflows during fueling, maintenance, and other vessel operations. Also, the proposed standard specifies that the discharge of used or spent oil no longer being used for its intended purpose would be prohibited, including any used or spent oil that may be added to an incidental discharge that is otherwise authorized to be discharged. Discharges of small amounts of oil, including oily mixtures, incidental to the normal operation of a vessel are permissible provided such discharges comply with the otherwise applicable existing legal requirements. For example, consistent with the CWA and as implemented by the 2013 VGP, this standard would prohibit the discharge of oil in such quantities as may be harmful, as defined in 40 CFR 110.3.
Section 139.3 of the proposed rule specifies that, except as expressly provided, nothing in this part would affect the applicability of any other provision of Federal law as specified in several statutory and regulatory citations. Two of those citations are to CWA Section 311 and to APPS. Those two laws address discharges of oil. Under CWA Section 311, any oil, including oily mixtures, other than those exempted in 40 CFR 110.5, may not be discharged in such quantities as “may be harmful,” which is defined to include those discharges that violate applicable water quality standards or “cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines or cause a sludge
or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines.” Discharges that are not included in the description of “may be harmful” include discharges of oil from a properly functioning vessel engine (including an engine on a public vessel) and any discharges of such oil accumulated in the bilges of a vessel discharged in compliance with 33 CFR part 151, subpart A; other discharges of oil permitted under MARPOL 73/78, Annex I, as provided in 33 CFR part 151, subpart A; and any discharge of oil explicitly permitted by the Administrator in connection with research, demonstration projects, or studies relating to the prevention, control, or abatement of oil pollution. Regarding the APPS (33 U.S.C. 1901
et seq.
), the United States enacted it to implement the obligations under MARPOL 73/78. The USCG is the lead agency for APPS implementation and issued implementing regulations primarily found at 33 CFR part 151. Those APPS requirements already apply to many of the vessels that would be covered by the proposed rule. Among other things, APPS regulates the discharge of oil and oily mixtures. Generally, these requirements prohibit “any discharge of oil or oily mixtures into the sea from a ship” except when certain conditions are met, including a discharge oil content of less than 15 ppm and that the ship operates oily-water separating equipment, an oil content monitor, a bilge alarm, or a combination thereof.
Additionally, the proposed rule would require measures during fueling, maintenance and other vessel operations to control and respond to spills and overflows, such as may occur from human error or improper equipment use. These proposed requirements reinforce existing requirements that require taking immediate and appropriate corrective actions if an oil spill is observed as a result of vessel operations. This includes maintaining appropriate spill containment and cleanup materials onboard and using such immediately in the event of any spill.
The proposed rule also includes requirements for oil-to-sea interfaces. Specifically, the proposed standard would require use of EALs for such oil-to-sea interfaces unless technically infeasible and sets out a series of mandatory BMPs for minimizing lubricant discharges during maintenance.
Oil-to-sea interfaces are seals or surfaces on ship-board equipment where the design is such that small quantities of oil can escape into the surrounding sea during normal vessel operations. For example, below-water seals frequently use lubricating oil mechanisms that maintain higher pressure than the surrounding sea to ensure that no seawater enters the system and compromises the unit's performance. During normal operation, small quantities of lubricant oil in those interfaces are released into surrounding waters. Above-deck equipment can also have oil-to-sea interfaces when portions of the machinery extend overboard, thereby allowing lubricant oil to be released directly into surrounding waters. Constituents of conventional hydraulic and lubricating oils vary by manufacturer, but may include copper, tin, aluminum, nickel, and lead. In addition, traditional mineral oils have a small biodegradation rate, a high potential for bioaccumulation and a measurable toxicity towards marine organisms. In the case of a controllable pitch propellers (CPP), up to 20 ounces of such oils could be released for every CPP blade that is replaced, with blade replacement occurring at drydock intervals or when the blade is damaged. When the blade replacement includes removal of the blade port cover (generally occurring infrequently, less than once per month), up to five gallons of oil could be discharged into surrounding waters unless the service is performed in drydock.
Additionally, many ocean-going ships operate with oil-lubricated stern tubes and use lubricating oils in much of the other machinery both on-deck and underwater. Oil leakage from stern tubes, once considered a part of normal “operational consumption” of oil, has become an issue of global concern and is now treated as oil pollution. A 2001 study commissioned by the European Commission DG Joint Research Centre concluded that routine unauthorized operational discharges of oil from ships into the Mediterranean Sea created more pollution than accidental spills (Pavlakis et al., 2001). Similarly, an analysis of data on oil consumption sourced from a lubricant supplier indicated that daily stern tube lubricant consumption rates for different vessels could range up to 20 liters per day (Etkin, 2010). This analysis estimated that operational discharges (including stern tube leakage) from vessels add between 36.9 million liters and 61 million liters of lubricating oil into marine port waters annually.
Vessels use lubricants in a wide variety of ship-board applications. Examples of lubricated equipment with oil-to-sea interfaces include:
•
Stern tube:
A stern tube is the casing or hole through the hull of the vessel that enables the propeller shaft to connect the vessel's engine to the propeller on the exterior of the vessel. Stern tubes contain seals designed to keep the stern tube lubricant from exiting the equipment array and being discharged to waters at the exterior of the vessel's hull.
•
Controllable pitch propeller:
Variably-pitched propeller blades are for changing the speed or direction of a vessel and supplementing the main propulsion system. Controllable pitch propellers also contain seals that prevent the lubricant from exiting the equipment array.
•
Rudder bearings:
These bearings allow a vessel's rudder to turn freely; they also use seals with an oil-to-sea interface.
•
On-deck equipment:
Hose handling cranes, hydraulic system prov cranes, hydraulic cranes, and hydraulic stern ramps are examples of machinery with the potential for above-water discharges of lubricants. When vessels are underway, this equipment is often not operational, and any lubricant losses are typically captured during deck washdown and treated as part of deck washdown wastewater. However, discharges can occur when portions of the machinery such as booms or jibs, trolleys, cables, hoist gear, or derrick arms are in use and extend over the side of vessel.
The EAL portion of the proposal provides that the EAL would need to meet three criteria; it must be “biodegradable,” “minimally-toxic,” and “not bioaccumulative” as defined in the proposed rule.
The proposed standard for oil-to-sea interfaces is slightly different from what was required for oil-to-sea interfaces in the VGP. EPA is proposing four changes. First, for clarity, EPA moved the EAL requirements to a general standard for oil management applicable to any specific discharge that may have an oil-to-sea interface rather than a specific discharge standard as was done in Part 2.2.9 of the VGP, and eliminated the specific discharge category, identified in Part 2.2.9 of the VGP as
“Controllable Pitch Propeller (CPP) and Thruster Hydraulic Fluid and other Oil-to-sea Interfaces including Lubrication Discharges from Paddle Wheel Propulsion, Stern Tubes, Thruster Bearings, Stabilizers Rudder Bearings, Azimuth Thrusters, and Propulsion Pod Lubrication and Wire Rope and Mechanical Equipment Subject to Immersion.”
The change demonstrates that the standard covers all oil-to-sea interfaces on vessels rather than just the interfaces listed in the name of that section of the VGP. EPA notes that
certain types of seals used on below-deck equipment such as air seals are based on designs that use an air gap or other mechanical features to prevent oils from reaching waters at the exterior of the vessel's hull. To the extent that these seals do not allow the lubricant to be released under normal circumstances, they are not considered to be oil-to-sea interfaces. Second, the VGP included specific criteria for demonstrating that use of an EAL was “technically infeasible.” Under the VIDA delineation of responsibilities between EPA and the USCG, determinations of technical infeasibility regarding the use of an EAL are most properly treated as a matter of implementation and as such, would be addressed as part of the implementing regulations to be developed by the USCG. Third, EPA made minor revisions to the wording of the standard to clarify that the scope of this discharge category extends to all types of equipment with direct oil-to-sea interfaces, including any on-deck equipment where lubricant losses can occur when portions of the machinery extend over the side of the hull. Fourth, the VGP provided two ways that a lubricant could be classified as an EAL: the EAL must be “biodegradable,” “minimally-toxic,” and “not bioaccumulative” as defined in the VGP; or, the EAL must be labeled under a defined list of labeling programs (
e.g.,
the European Union's European Ecolabel and Germany's Blue Angel). EPA is proposing to remove the list of acceptable labeling programs acknowledging that the requirements of these different labeling programs are established by organizations for which neither EPA nor the USCG have control over any modifications to the criteria these organizations may make to identify acceptable products for labeling. The expectation is that all or most of the labeling programs identified in the VGP meet the EAL criteria in the proposed rule and as such would provide a comparable list of options from which vessel operators could select appropriate lubricants. This provides a clear delineation of expectations for any institution interested in establishing a labeling program if that program demonstrates products that are labeled based on criteria that are at least as stringent as those in the proposed rule for biodegradability, toxicity, and bioaccumulation.
Although certification programs to label lubricants as “environmentally acceptable lubricants” have existed for some time, the VGP was one of the first regulatory programs to require use of EALs. Today, more than sixteen manufacturers produce EALs for the global shipping community, giving vessel operators a wide array of choices for optimizing lubricant technical performance. Most major marine equipment manufacturers have approved EALs for use in their machinery, and new equipment is being introduced commercially such as air seals, composite bearings, electric motors, and synthetic line. The market for EALs continues to expand around the world, particularly in Europe where the use of such lubricants is promoted through a combination of tax breaks, purchasing subsidies, and national and international labeling programs.
In the analysis EPA completed for the VGP, the Agency found that product substitution of EALs for other lubricants in oil-to-sea applications (unless technically infeasible) together with the required BMPs for maintenance represents BAT. As the Agency described when it issued the VGP, use of EALs in lieu of conventional formulations for oil-to-sea interfaces can offer significantly reduced discharges of pollutants of concern (U.S. EPA, 2011).
As part of the BAT analysis for the VGP, EPA considered the processes employed and potential process changes that might be necessary for vessels to use EALs. As EPA explained at the time, EALs are readily available and their use is economically achievable for most applications (U.S. EPA, 2011). New vessels in particular can select equipment during design and construction that is compatible with EALs. Furthermore, vessel operators can design additional onboard storage capacity for EALs if they choose to use traditional mineral-based oil for engine lubrication (thereby needing two types of oils on-hand). The extra storage capacity needed would be minor. EPA, however, continues to believe that the use of EALs in all applications is not practicable or achievable, therefore this proposed rule retains the provision from the VGP oil-to-sea interface requirements that allows for a claim of “technically infeasible.”
The Agency considered several other approaches for regulating oil-to-sea interfaces in the proposed rule. For one, the most recent version of the European Ecolabel program has a modified definition of what constitutes an “environmentally acceptable lubricant” in that it now allows for “small quantities” (
i.e.,
<0.1 percent) of bioaccumulative substances in lubricant formulations. EPA considered revising the definition of “biodegradable” to bring the terminology more in line with current European Ecolabel requirements for a 10-day test pass window rather than a 28-day test pass window for achieving specific levels of degradation. EPA notes that stakeholders involved in the European Ecolabel program felt strongly that this change in the test pass window would significantly reduce the number of lubricant formulations available on the market. To ensure widespread installation and use of EALs by vessels that operate in the waters of the United States or the waters of the contiguous zone, EPA is retaining the definition of biodegradable as used in the VGP.
4. Training and Education
The proposed rule does not include training and education requirements. CWA Section 312(p)(5)(A)(ii)(III) requires the USCG to promulgate training and educational requirements that are not less stringent than those contained in the VGP.
B. Discharges Incidental to the Normal Operation of a Vessel—Specific Standards
This section describes the proposed national standards of performance for discharges incidental to the normal operation of a regulated vessel. The proposed national standards of performance would apply to regulated vessels operating within the waters of the United States or the waters of the contiguous zone. The proposed rule would require that a discharge comprised of two or more regulated incidental discharges must meet the national standards of performance established for each of those commingled discharges.
1. Ballast Tanks
i. Applicability
Ballast water is any water, suspended matter, and other materials taken on-board a vessel to control or maintain trim, draught, stability, or stresses of the vessel, regardless of the means by which any such water or suspended matter is carried; or during the cleaning, maintenance, or other operation of a ballast tank or ballast management system of the vessel. The term “ballast water” does not include any substance that is added to the water that is directly related to the operation of a properly functioning ballast water management system. As defined in the proposed standards, a ballast tank is any tank or hold on a vessel used for carrying ballast water, regardless of whether the tank or hold was designed for that purpose. Fresh water, sea water, or ice carried onboard a vessel for food safety and product quality purposes is not
considered ballast water and, as such, would not be subject to the ballast water requirements in the proposed rule. Ballast water discharge volumes and rates vary significantly by vessel type, ballast tank capacity, and type of deballasting equipment for the universe of vessels covered under the VGP and VIDA. Most passenger vessels have ballast capacities of less than 5,000 cubic meters (approximately 1.3 million gallons) of water. Cargo/container ships generally have ballast capacities of 5 to 20 thousand cubic meters (more than 1.3 to 5.3 million gallons) of water while some bulk carriers and tankers have ballast capacities greater than 40 thousand cubic meters (over 10 million gallons) of water.
Ballast water may contain toxic and nonconventional pollutants such as rust inhibitors, epoxy coating materials, zinc or aluminum (from anodes), iron, nickel, copper, bronze, silver, and other material or sediment from inside the tanks, pipes, or other machinery. More importantly, ballast water may also contain marine and freshwater organisms that originate from where the water is collected. When ballast water is discharged, these organisms may establish new populations of ANS in the receiving waterbodies. Ballast water discharged from vessels has been, and continues to be, a significant environmental concern because it can introduce and spread ANS that threaten the diversity and abundance of native species, threaten the ecological stability of our Nation's waters, and threaten the commercial, agricultural, aquacultural, and recreational use of those waters.
Currently, ballast water discharges are regulated by multiple federal and state laws and regulations. The USCG regulates ballast water discharges under the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA), and amendments thereto by the National Invasive Species Act (NISA) of 1996 (33 CFR part 151 subparts C and D). Starting in 2009, EPA regulated ballast water discharges under the NPDES program authorized under CWA Section 402; however, the VIDA requires that ballast water be regulated as an incidental discharge under CWA Section 312. The VIDA set as a minimum baseline the VGP/NPDES requirements previously developed under CWA Section 402. Additionally, several states (California, Michigan, Minnesota, Ohio, Oregon, Washington, and Wisconsin) previously used their certification authorities under CWA Section 401 or under stand-alone state authorities to impose additional, state-specific requirements that would apply to commercial vessels operating within their state waters. Such additional stand-alone State standards will no longer be permissible under the VIDA once EPA has established national standards and the USCG has promulgated implementing regulations that are final, effective, and enforceable. [33 U.S.C. 1322(p)(9)(A)(i)].
The proposed standards for ballast water reflect BAT and consider the previous requirements established in the 2013 VGP and 33 CFR part 151 subparts C and D, the BAT factors as specified in Section 304(b) of the Clean Water Act, as well as the new requirements established in the VIDA. The analysis described herein is based largely on information gathered and included in the public docket for this proposed rulemaking and includes information on the United States and international requirements surrounding ballast water discharges and the candidate control technologies (both best management practices and treatment technologies).
ii. Exclusions
The proposed standards for ballast water apply to any vessel equipped with one or more ballast tanks that operates in the waters of the United States or waters of the contiguous zone, except as excluded by statute or regulation. Pursuant to the VIDA in CWA Section 312(p)(2)(B)(ii), the proposed rule would exclude the following five discharges from the CWA Section 312(p) ballast water standards.
A. Vessels That Continuously Take on and Discharge Ballast Water in a Flow-Through System
The proposed rule would exclude discharges of ballast water from a vessel that continuously takes on and discharges ballast water in a flow-through system, if the Administrator determines that the system cannot materially contribute to the spread or introduction of an ANS from ballast water into waters of the United States or the contiguous zone, acknowledging that such a flow-through system may have additional areas on the hull (
e.g.,
niches) requiring more rigorous biofouling management. EPA is unaware of any such vessels currently in commercial operation, but theoretically a vessel could be designed to have ambient water flow through the hull for vessel stability without retaining any of that water in such a way that it would be transported. Should any such vessel begin commercial operation, EPA expects that it would evaluate the ballasting configuration to determine if the vessel meets the statutory description, in which case it would be excluded from the ballast water discharge standards. In that instance, the Administrator would notify the vessel owner or operator of such a determination. [33 U.S.C. 1322(p)(2)(B)(ii)(I)]
B. Vessels in the National Defense Reserve Fleet Scheduled for Disposal
The proposed rule would exclude discharges of ballast water from a vessel that is in the National Defense Reserve Fleet that is scheduled for disposal, if the vessel does not have an operable ballast water management system.
C. Vessels Discharging Ballast Water Consisting Solely of Water Meeting the Safe Drinking Water Act Requirements
The existing USCG regulations (33 CFR 151.2025) allow vessels to use, as ballast water, water from a U.S. public water system (PWS), as defined in 40 CFR 141.2, that meets the requirements of the Safe Drinking Water Act (SDWA) at 40 CFR parts 141 and 143. In plain terms, this means finished, potable water as opposed to untreated water that is owned or operated by a PWS but not necessarily potable. Those USCG regulations specify that vessels using water from a PWS as ballast must maintain a record of which PWS they received the water from as well as a receipt, invoice, or other documentation from the PWS indicating that water came from that system. Furthermore, vessels must certify that the ballast tanks have either previously cleaned (including removing all residual sediments) and not subsequently introduced ambient water, or never introduced ambient water to those tanks and supply lines. The existing EPA requirements in the VGP similarly allow vessels to use water, not only from a U.S. public water system, but also from a Canadian drinking water system, as defined in Health Canada's Guidelines for Canadian Drinking Water Quality.
As specified by Congress in the VIDA, the proposed rule would exclude a vessel that discharges ballast water consisting solely of water taken onboard from a public or commercial source that, at the time the water is taken onboard, meets the applicable requirements of the Safe Drinking Water Act (SDWA) (42 U.S.C. 300f
et seq.
) at 40 CFR parts 141 and 143. As provided in the existing VGP, EPA proposes that this exclusion also applies to water taken on board that meets Health Canada's Guidelines for Canadian Drinking Water Quality because EPA has evaluated these Guidelines and found them to be consistent with the applicable requirements of the SDWA. Canada's drinking water treatment processes
require a high degree of disinfection and, in many cases filtration, which would make the likelihood of loading ANS into a vessel's ballast tank highly unlikely. Further, as under existing requirements, EPA proposes that this exclusion applies only if the ballast tanks have either been previously cleaned (including removing all residual sediments) and not subsequently loaded with ambient water; or, if the ambient water has never been introduced to the ballast tanks and supply lines. Note that EPA considered whether use of a potable water generator installed onboard the vessel should be covered under this exclusion; however, pursuant to CWA Section 312(p), this exclusion is only available to ballast water that is taken onboard from a public or commercial source that is compliant with SDWA requirements at the time it is taken aboard the vessel (U.S. EPA, 2015).
D. Vessels Carrying All Permanent Ballast Water in Sealed Tanks
The proposed rule would exclude discharges of ballast water from a vessel that carries all permanent ballast water in sealed tanks that are not subject to discharge. This exclusion is consistent with the previous requirements of the VGP and was specified by Congress under the VIDA.
This exclusion is different from the proposed ballast water exchange and saltwater flushing exemptions (described in VIII.B.1.ix.
Ballast Water Exchange and Saltwater Flushing
) for ballast contained in sealed tanks, which EPA proposes to be for ballast tanks that are not permanently sealed.
E. Vessels Discharging Ballast Water Into a Reception Facility
The proposed rule would exclude discharges of ballast water from a vessel that only discharges ballast water into a reception facility (which could include another vessel for the purpose of storing or treating that ballast water). This exclusion would carry forward the existing VGP requirements and USCG regulation (33 CFR 151.2025) that allow discharges to a reception facility as an eligible ballast water management method. In such instances, once the ballast water is offloaded to a reception facility, that ballast water would be subject to regulation if discharged from that facility. Consistent with the rationale provided in the VGP fact sheet, EPA would continue to expect that all vessel piping and supporting infrastructure up to the last manifold or valve immediately before the reception facility manifold connection, or similar appurtenance, prevent untreated ballast water from being discharged. Any such discharge not meeting this requirement would be expected to meet the discharge standards in the proposed rule.
iii. Exclusion Not Continued From Existing USCG Regulations for Crude Oil Tankers
Crude oil tankers engaged in coastwise trade are excluded from the existing USCG regulation (33 CFR 151.2015(b)), consistent with Section 1101(c)(2)(L) of the National Invasive Species Act of 1996 (16 U.S.C. 4711). However, these same vessels are not excluded from meeting the ballast water requirements in the VGP and are not exempted under the VIDA. Therefore, pursuant to CWA Section 312(p)(4)(B)(iii), which requires this proposed rule to be at least as stringent than specified parts of the VGP, EPA proposes that crude oil tankers engaged in coastwise trade not be excluded from meeting the ballast water requirements set forth in the proposed rule. Such vessels are not inherently unable to perform ballast water exchanges and other ANS management practices that their currently non-exempt counterparts routinely carry out. EPA expects this proposal to impose no additional costs given that the requirements are presently in effect under the VGP.
iv. Ballast Water Best Management Practices (BMPs)
Pursuant to CWA Section 312(p)(4)(B)(ii), EPA is proposing BMPs to control or abate ballast water discharges from all vessels equipped with ballast tanks. Following the requirement of the VIDA that EPA requirements must not be less stringent than the VGP unless a less stringent requirement is justified, EPA proposes to retain many of the BMPs in the VGP as they were designed to reduce the number of living organisms taken up and discharged in ballast water. At present, these BMPs are widely followed and implemented, thus technologically available and economically achievable. They have no unacceptable non-water quality environmental impacts (
e.g.,
energy requirements, air impacts, solid waste impacts, and changes in waters use). They are proposed to be carried forward from both the existing EPA requirements in the VGP and USCG regulations (33 CFR part 151 subpart D). Discussion of BMPs not proposed to be carried forward from the VGP and USCG regulations is included in VIII.B.1.iv.H.
Best Management Practices Not Continued from Existing Requirements.
The proposed BMPs are described below.
A. Clean Ballast Tanks Regularly
As required under the VGP and USCG regulations, the proposed rule would require ballast tanks to be flushed regularly and cleaned thoroughly at every scheduled drydock to remove sediment and biofouling organisms. Residual sediment left in ballast tanks can negatively affect the ability of a vessel to meet discharge standards, even when a ballast water management system (BWMS) is properly operated and maintained. Such sediments may pose a risk of spreading ANS as organisms can survive in ballast sediment for prolonged periods of time in resting stages.
B. Use High Sea Suction
Consistent with EPA requirements under the VGP, the proposed rule would require that, when practicable and available, high sea suction sea chests must be used when at a port or where clearance to the bottom of the waterbody is less than 5 meters to the lower edge of the sea chest. As an example of when use of high sea suction may not be practicable is to avoid ice or algae, or other biofilm on the water surface. This BMP minimizes the potential for uptake of bottom-dwelling organisms, suspended solids, particulate organic carbon, and turbidity into the ballast tanks.
C. Use Ballast Water Pumps When in a Port
As previously required under the VGP, the proposed rule would require that when practicable, ballast water must be discharged in port using pumps rather than using gravity to drain tanks. This BMP has been shown to increase the mortality rate of living organisms in the ballast water during discharge, particularly zooplankton and other larger organisms, that would otherwise be discharged, given the physical action of the pumps (
e.g.,
cavitation, entrainment, and/or impingement).
D. Maintain Sea Chest Screens
The proposed rule would require that the sea chest screen(s) must be maintained and fully intact. This BMP is consistent with an EPA requirement under the VGP for existing bulk carriers operating exclusively in the Laurentian Great Lakes, also known as “Lakers,” but EPA proposes to expand it to all vessels with ballast tanks. These screens are designed to keep the largest living organisms, such as fish, as well as bacteria and viruses associated with these organisms, out of ballast tanks.
This BMP may reduce the risk of spreading ANS. Adequately maintaining sea chest screens is a simple technology-based practice that is available, economically achievable, and beneficial to all vessels to reduce the threat of ANS dispersal.
E. Prohibit Ballast Tank Cleaning Discharges
As described above, the proposed rule would require ballast tanks to be periodically flushed and cleaned to remove sediment and biofouling organisms; however, the proposed rule also would prohibit the discharge of residual sediment or water from ballast tank cleanings. Rather, these wastes should be disposed of in accordance with any applicable local, state, and federal regulations, which are outside of the scope of this proposed rule.
F. Avoid Ballast Water Discharge or Uptake in Areas With Coral Reefs
The proposed rule would require vessel owners and operators to avoid the discharge or uptake of ballast water in areas with coral reefs. This BMP is consistent with the VGP requirements. The VGP also included similar prohibitions for “marine sanctuaries, marine preserves, marine parks, . . . or other waters” listed in Appendix G. The proposed rule also would prohibit the discharge and uptake of ballast water in those areas but under a separate section of the proposed rule specific to activities in federally-protected waters as described in VIII.B.1.xiii.
Additional Considerations in Federally-Protected Waters.
Further, consistent with a USCG Marine Safety Information Bulletin (
Ballast Water Best Management Practices to Reduce the Likelihood of Transporting Pathogens That May Spread Stony Coral Tissue Loss Disease;
Marine Safety Information Bulletin, OES-MSIB Number: 07-19, September 6, 2019), ballast water discharges should be conducted as far from coral reefs as possible, regardless of whether the reef is inside or outside of 12 NM from shore (USCG, 2019a).
EPA is seeking input for the development of the final rule regarding: (1) How best to define areas with coral reefs, and (2) public availability of navigational charts that can be used for identifying areas with coral reefs.
G. Develop a Ballast Water Management Plan
Like the previous requirements of the VGP and the USCG regulations, the proposed rule would require that any vessel with one or more ballast tanks develop and follow a vessel-specific ballast water management plan (BWMP) to minimize the potential for the introduction and spread of ANS. Such a BWMP should employ a holistic strategy that considers the operational profile of the vessel and the appropriate ballast water management practices and systems. Details of such a plan will be detailed in the corresponding implementation regulation to be promulgated by the Secretary as specified in section 139.1(e) of the proposed rule.
H. Best Management Practices Not Continued From Existing Requirements
The proposed rule would not include one BMP that is currently included as a measure in both the VGP and USCG regulations at 33 CFR part 151 subparts C and D. These practices were adopted from the voluntary “Code of Best Practices for Ballast Water Management” of the Shipping Federation of Canada dated September 28, 2000, for vessels operating in the Great Lakes and St. Lawrence Seaway and codified in the VGP and USCG regulations (Shipping Federal of Canada, 2000).
EPA proposes not to continue the requirement that vessel operators must minimize or avoid uptake of ballast water in the following areas and situations:
• Areas known to have infestations or populations of harmful organisms and pathogens (
e.g.,
toxic algal blooms);
• Areas near sewage outfalls;
• Areas near dredging operations;
• Areas where tidal flushing is known to be poor or times when a tidal stream is known to be turbid;
• In darkness, when bottom-dwelling organisms may rise in the water column
• Where propellers may stir up the sediment; and
• Areas with pods of whales, convergence zones, and boundaries of major currents.
The proposed deletion is based on the finding that such measures are not practical to implement. These conditions are usually beyond the control of the vessel operator during the uptake and discharge of ballast water and thus it is not an available measure or practice to minimize or avoid uptake of ballast water in those areas and situations. 33 U.S.C. 1314(b)(2)(B). In lieu of these measures, the VIDA and the proposed rule contain several provisions that can help address some of the situations identified above. For example, in cases of a known outbreak of harmful algal blooms or viral hemorrhagic septicemia, a state can submit a petition to EPA or the USCG requesting EPA to issue an emergency order as provided for in CWA Section 312(p)(7)(A)(i). The emergency order provision in the VIDA acknowledges that when a water quality or invasive species issue is identified in a geographic area, EPA will identify appropriate BMPs to address that concern and impose specific requirements on the universe of vessels (and potentially others) as necessary. 33 U.S.C. 1322(p)(4)(E)(i).
v. Numeric Ballast Water Discharge Standard
Pursuant to CWA Section 312(p)(4)(B)(iii), the proposed rule would continue, as a numeric discharge standard, the numeric discharge limitations previously contained in the VGP, to include:
• For organisms greater than or equal to 50 micrometers in minimum dimension: Discharge must include less than 10 living organisms per cubic meter of ballast water.
• For organisms less than 50 micrometers and greater than or equal to 10 micrometers: Discharge must include less than 10 living organisms per milliliter (mL) of ballast water.
• Indicator microorganisms must not exceed:
○ Toxicogenic
Vibrio cholerae
(serotypes O1 and O139): A concentration of less than 1 colony forming unit (cfu) per 100 mL.
○
Escherichia coli:
A concentration of less than 250 cfu per 100 mL.
○ Intestinal enterococci: A concentration of less than 100 cfu per 100 mL.
The proposed rule would define “living” using the CWA Section 312(p)(6)(D) clarification that the terms `live' and `living' shall not include an organism that has been rendered nonviable; or preclude the consideration of any method of measuring the concentration of organisms in ballast water that are capable of reproduction. However, it is important to recognize that as of the time of the proposed rule, the USCG has not identified any testing protocols, based on best available science, that are available for use to quantify nonviable organisms in ballast water. As such, compliance with the proposed discharge standard requires the use of test methods as detailed in the 2010 EPA
Generic Protocol for the Verification of Ballast Water Treatment Technology
that do not consider non-viable organisms as part of the test protocol. Should the USCG identify one or more testing protocols that enumerate nonviable organisms, such methods would be acceptable for demonstrating compliance with the proposed numeric
ballast water discharge standard (U.S. EPA, 2010).
In addition, the proposed rule would continue the numeric discharge limitations as a numeric standard for four biocide parameters contained in the VGP, namely:
• For any BWMS using chlorine dioxide, the chlorine dioxide must not exceed 200 µg/L;
• For any BWMS using chlorine or ozone, the total residual oxidizers must not exceed 100 µg/L; and
• For any BWMS using peracetic acid, the peracetic acid must not exceed 500 µg/L and the hydrogen peroxide must not exceed 1,000 µg/L.
The standard for both the organisms and biocide parameters represents instantaneous maximum values not to be exceeded.
The proposed rule would continue the requirement contained in the VGP and USCG regulations at 33 CFR part 151 that, prior to the compliance date for the vessel to meet the discharge standard, ballast water exchange must be conducted as required in section 139.10(e) of the proposed rule, or the applicable regional requirements in sections 139.10(f) and 139.10(g) of the proposed rule, for any vessel subject to the ballast water discharge standard. As directed in the VIDA, the USCG will include requirements regarding compliance dates in its proposed regulation. 33 U.S.C. 1322(p)(5)(A)(iv).
A. BAT Rationale for Standard Pursuant to VIDA
1. Types of Ballast Water Management Systems Determined To Represent BAT
The treatment technologies used for ballast water management representing BAT typically have three processes: Physical separation, disinfection, and neutralization. For physical separation, filtration is used most often as a pre-treatment by removing large organisms and particles (down to about 40-50 µm) from ballast water. Filtration improves the efficiency of subsequent disinfection processes by lowering the amount of chemicals or ultraviolet (UV) light needed. Filtration is also important for chemical disinfection because chemicals are relatively ineffective against organisms buried in sediment, especially invertebrates in resting stages (U.S. EPA, 2011a).
Disinfection is the effect of a chemical (
e.g.,
an oxidant) or physical action (
e.g.,
UV irradiation, heat, shear force, etc) that kills organisms or renders them no longer able to reproduce. The types of disinfection processes of a BWMS broadly includes UV radiation, electrochlorination, chemical addition, ozonation, heat and deoxygenation. Disinfection using UV radiation is currently the most common disinfection technology used in BWMS and is typically combined with filtration during ballasting. The UV light is emitted from a mercury arc lamp, and the rays transfer electromagnetic energy through the organism's cell membrane to chemically alter DNA in its nucleus which kills the organism or terminates its ability to reproduce. A UV-based BWMS often includes a second round of UV treatment when deballasting.
Electrochlorination (or electrolysis) systems are the second most common type of disinfection system used to treat ballast water. Electrochlorination creates hypochlorous acid, the active substance, by running an electric current through saltwater. The two primary requirements for treatment are a minimum salinity in the ambient water for the reaction to occur and a power source with direct current to run the electrolyzer. Two design options for electrochlorination systems are used in BWMS: In-line and side-stream treatment. Both systems undergo the same chemical reaction in an electrolyzer but vary in the concentrations of active substance created and in the volume of water dosed. Chemical addition (
e.g.,
liquid sodium hypochlorite), ozonation, and deoxygenation are other types of ballast water disinfection technologies that have been developed and type-approved; although, use of these systems is far less common than UV and electrochlorination systems.
Neutralization is the addition of a neutralizing agent that reacts with excess disinfection chemicals to eliminate their toxicity at discharge. Neutralization is an important step in chemical ballast water treatment to avoid excess chemicals, residual oxidizers, and disinfection by-products from entering and impairing the water at the point of discharge. As required in the 2013 VGP, the proposed rule includes a numeric standard for residual biocides which can be met through neutralization of treated ballast water.
2. Justification for the Numeric Ballast Water Discharge Standard
i. Type-Approval of Ballast Water Management Systems is a Well-Established and Demonstrated Process for Selection of Technologies
As a preliminary matter, EPA notes that the establishment of a ballast water discharge standard for vessels (both domestic and international) using technology based criteria pursuant to the CWA poses challenges that are not present for stationary facilities for which EPA routinely establishes national discharge effluent limitations guidelines and standards based on BAT under the effluent limitation guidelines program. Importantly, it is impractical to conduct routine monitoring and analysis of the discharged ballast water from vessels to assess the ability of an installed BWMS onboard a ship to meet the numerical discharge standard for biological parameters. Rather, the biological efficacy of any BWMS is best demonstrated through a series of land-based and shipboard trials performed specific to each BWMS. Such a system, when selected, installed, and operated consistent with the manufacturer's specifications, as tested in those land-based and shipboard trials, and “type-approved” by an Administration (
i.e.,
the federal agency responsible for approvals) is then expected to meet the discharge standard for biological parameters in the proposed rule.
The BWMS type-approval process was first developed as part of the IMO International Convention for the Control and Management of Ships' Ballast Water and Sediments (
i.e.,
the BWM Convention), an international treaty developed with a goal of establishing an international standard for the management of ballast water (IMO, 2004). The BWM Convention was adopted in 2004 after more than 14 years of complex negotiations between IMO member states and entered into force in 2017, 12 months after ratification of the BWM Convention by a minimum of 30 member states, representing at least 35 percent of world merchant shipping tonnage. Regulation D-2 of that BWM Convention established the ballast water discharge performance standard as follows:
• Organisms greater than or equal to 50 micrometers in minimum dimension—less than 10 viable organisms per cubic meter;
• Organisms less than 50 micrometers in minimum dimension and greater than or equal to 10 micrometers in minimum dimension—less than 10 viable organisms per milliliter;
• Indicator microbes:
○ Toxicogenic
Vibrio cholerae
(O1 and O139): Less than 1 colony forming unit (cfu) per 100 milliliters or less than 1 cfu per gram (wet weight) zooplankton samples;
○
Escherichia coli:
Less than 250 cfu per 100 milliliters; and
○ Intestinal enterococci: Less than 100 cfu per 100 milliliters.
Regulation D-3 requires that any BWMS used to meet the standard be approved in accordance with specific IMO procedures, which had initially
been adopted as guidelines (Guidelines for Approval of Ballast Water Management Systems, or more commonly referred to as “G8” for being the eighth in a series of BWM Convention guidelines) but subsequently adopted into the BWM Convention as mandatory (IMO, 2008; IMO, 2016). The approval process includes detailed requirements for BWMS vendors to submit BWMS for both land-based and shipboard testing by independent third-party test facilities to demonstrate that the BWMS can meet the D-2 standard following technical specifications detailed in the
Code for Approval of Ballast Water Management Systems (BWMS Code, Resolution MEPC.300(72; 13 April 2018, effective October 13, 2019)
(IMO, 2018a). Upon a successful demonstration that a BWMS can meet the D-2 standard, such a system is approved (“type-approved”) for use onboard a ship. Adoption of the BWM Convention in 2004 prompted development of ballast water management systems (BWMS) that could demonstrate compliance with the D-2 standard. In this approach, unlike how EPA develops effluent limitations guidelines and standards based on demonstrated treatment system effectiveness, the BWM Convention establishes a standard, then vendors develop systems to be demonstrated and approved as meeting that standard. As of October 2019, the IMO recognizes 80 BWMS approved by one or more administrations as capable of meeting the D-2 standard (IMO, 2019).
While the United States is not party to the BWM Convention, the USCG developed domestic regulations with the intent to harmonize as closely as possible with the adopted BWM Convention, and established a discharge standard to be met using a BWMS that has been demonstrated as capable of meeting that standard through a USCG type-approval process. Criteria for the USCG type-approval are detailed in regulations at 46 CFR 162.060,
Ballast Water Management Systems
and address BWMS design, installation, operation, and testing to ensure any type-approved system meets both performance and safety standards. The USCG type-approval testing requirements were widely accepted as having been more complex and rigorous than those of the IMO (although this is not necessarily still the case since adoption of the BWMS Code). The USCG regulations provide for temporary use of foreign type-approved BWMS in the United States for up to five years after the vessel is required to comply with the ballast water discharge standard.
Type-approval is a critical step in verifying that a BWMS, when tested under standardized and relatively challenging conditions, is capable of consistently meeting the discharge standard. In the USCG type-approval testing process to determine biological efficacy, careful analyses are employed to (1) assure the source water for testing meets a threshold concentration of organisms to meaningfully challenge the BWMS, and (2) to quantify (ideally, sparse) concentrations of living organisms in treated and untreated (
i.e.,
control) discharge water. As part of its type-approval procedure, the USCG regulations require BWMS land-based testing to be conducted pursuant to the ETV Protocol (
i.e.,
the 2010
Generic Protocol for the Verification of Ballast Water Treatment Technology,
developed under the now defunct EPA Environmental Technology Verification Program) that outlined the experimental design, sampling and analysis protocols, test, and reporting requirements (U.S. EPA, 2010).
The USCG type-approval process contrasts with the typical approach when EPA develops a numeric discharge effluent limitations guideline or standard under the effluent limitation guidelines program. There, EPA does not also specify the technology that must be used; rather, EPA identifies one or more technologies that have been demonstrated as being capable of meeting the discharge standard and the discharger selects one of those technologies. EPA typically establishes numeric effluent discharge limits based on a daily maximum and long-term (
i.e.,
monthly) average to reflect pollution control that reflects BAT, including accounting for variability at well-operated systems. Compliance with such effluent limits is demonstrated through routine self-monitoring by the discharger. Because of the challenges with collecting and testing representative samples of ballast water at the time of discharge, regulating discharged ballast water sourced from around the world has required a different approach. Namely, EPA adopted the USCG and IMO approach over the last decade by not only setting the numeric discharge limitations, but also specifying the technologies deemed to meet the limitations through the type-approval process. Currently, for vessels operating in waters of the United States and contiguous zones, compliance with the key biological parameters (
i.e.,
organisms in the 10-50 microns and greater than 50 microns ranges) is achieved largely through demonstrating that any installed BWMS is operated and maintained consistent with the criteria under which that system received USCG type-approval, acknowledging that discharges are required to meet the discharge standard as well.
The proposed ballast water discharge standard reflects EPA's BAT analysis that any USCG type-approved BWMS kill, render harmless, or remove living organisms from ballast water. These approved technologies have been demonstrated to achieve the existing requirements, and therefore are technologically available; for the reasons set out in the 2013 VGP Fact Sheet, they are also economically achievable and have no unacceptable non-water quality environmental impacts. The USCG type-approved its first BWMS in 2016 and to date, more than two dozen systems have received USCG type-approval (USCG, 2019).
ii. International Nature of Vessel Operations Dictates Consideration of IMO Discharge Standard
When developing the VGP, EPA established the numeric ballast water effluent limits equivalent to the standard in the USCG regulations (33 CFR 151.1511 and 151.2030) and generally consistent with the BWM Convention. In establishing those effluent limits, EPA demonstrated it was critical to consider that BWM Convention. As described above, the United States is not a party to the BWM Convention; however, both the USCG (serving as the lead for the U.S. delegation) and EPA were actively involved in the standard setting discussions that led to the BWM Convention numeric discharge standard which entered into force in September 2017. Worldwide, it is estimated that approximately 34,000-70,000 commercial vessels are required to meet a ballast water discharge standard (IMO, 2016a; King and Hagan, 2013). Vessels from IMO member countries that have signed onto the BWM Convention are required to comply with both the BWM Convention and U.S. ballast water regulations when operating in U.S. waters. Similarly, U.S.-flagged vessels must meet the BWM Convention requirements when operating in any countries that are a signatory of that BWM Convention (
e.g.,
a U.S.-flagged vessel will be required to comply with Canadian regulations developed pursuant to the BWM Convention when in Canadian waters).
Based on the most recent five years of VGP annual reports submitted to EPA, over 75 percent of vessels discharging ballast water spent 25 percent or less of
their time (and nearly 60 percent of those vessels that discharged ballast water spent less than 10 percent of their time) operating in waters of the United States or waters of the contiguous zone (U.S. EPA, 2020). As of October 31, 2019, 81 IMO member countries representing more than 80 percent of the world merchant fleet by tonnage have ratified the BWM Convention, thus requiring vessels either flying the flag of those countries or operating in those countries to comply with that BWM Convention (IMO, 2020). Thus, vessels comprising 80 percent of the world merchant fleet by tonnage are obligated to comply with the BWM Convention anywhere they operate in the world, including while operating in the United States. The movement of vessels through international waters, the need to comply with any international pollution control standard, and the great variability in source water quality among all the ports where vessels operate presents process and engineering challenges that are unique to the vessel community. This is particularly true of BWMS where the physical scale of such systems relative to the vessels themselves often makes it impossible to accommodate redundant systems or potentially even two different systems to be used depending on where the vessel may be ballasting. These practical challenges relate to the technical availability of such requirements where the relationship between U.S. and other international requirements may limit the ability of the vessel to select and install technologies capable of complying with multiple sets of requirements where that vessel is intending to voyage. With that in mind, it is important that EPA considers the implications for the entire universe of vessels that may operate in waters of the U.S. and waters of the contiguous zone. So, while the U.S. requirements do not have to be identical to the BWM Convention, it is important that, to the extent possible, U.S. requirements do not conflict with international obligations for the vessels of flag states that have signed onto that BWM Convention.
In 2015, in
Nat. Res. Def. Council, et al.
v.
U.S. Envtl. Prot. Agency, et al.,
808 F.3d 556 (2d Cir. 2015), the United States Court of Appeals for the Second Circuit found, among other things, that EPA acted arbitrarily and capriciously in the 2013 VGP because EPA failed to address why it did not select technologies that could have resulted in a more stringent limitation than the technologies underlying the IMO Standard. The court stated that there are shipboard technologies capable of surpassing the international standard and that EPA failed to demonstrate why limits based on these technologies were not considered. The information cited by the court is the 2011 Science Advisory Board (SAB) report that showed that nine BWMS representing five types of systems had data generated during their IMO type-approval testing demonstrating that these systems can meet a standard between the IMO/USCG standard and 10 times the standard for one or more organism sizes (U.S. EPA, 2011b).
Establishing a discharge standard necessarily based on the most stringent of type-approved systems, as implied by the court's decision, is not required where mitigated by one of the factors relevant to BAT under CWA Section 304(b), therefore EPA does not believe the Second Circuit's decision must dictate the outcome of the agency's analysis. As discussed above, the BAT factors, particularly with respect to process considerations and engineering challenges, weigh in favor of maintaining the proposed ballast water standard at a level of consistency with the IMO standard. This is not to say that U.S. requirements must or should always be identical with the international standard. However, particularly for ballast water discharges, which are frequently significant in scale and expensive to control and which are intrinsic to the long-distance movement of vessels through international waters, EPA places value on being consistent with international obligations, when reasonably possible, in establishing BAT. Here, it is neither reasonable nor appropriate for the universe of vessels that would be regulated under the proposed ballast water discharge standard to not consider the international obligations for those vessels. The current world economic and trade system is predicated on timely and efficient maritime transportation, a significant proportion of which operates globally where trade takes it. Many of the vessels that are subject to the U.S. discharge standard spend most of their time outside of waters of the United States and waters of the contiguous zone, are operating under international ballast water obligations, which for the most part is the IMO standard established in the BWM Convention.
The record for this proposed rulemaking demonstrates that the proposed standard reflects BAT in that the current technology, USCG type-approved BWMS, are technologically available, safe, effective, reliable, and commercially available for shipboard installation. Also, the record indicates that their use is economically achievable. These technologies have been shown (
i.e.,
through shipboard type approval testing) to substantially reduce the concentration of living organisms in ballast water discharges (and achieve the IMO and USCG/EPA discharge standards) compared to mid-ocean exchange or discharges of unexchanged ballast water.
iii. Proposed Standard Accounts for Multiple Sources of Variability
The proposed standard successfully accounts for various sources of variability inherent in addressing ANS in ballast water, including:
• Vessel size, operational profile (
e.g.,
voyage lengths, volumes of ballast water, ballast water flow rates, etc.) and class and flag state;
• Ballast water management system (BWMS) performance in diverse environments; and
• Discharge monitoring (
i.e.,
sampling and analysis).
This variability in addressing ANS dictates that different BWMS options are needed to account for differences in vessels such as different voyage patterns (in marine, brackish, or fresh waters), ballasting rates, architectural characteristics of the vessel such as space constraints or the need to locate the BWMS in a hazardous location onboard the vessel, and BWMS vendor support availability at locations around the world where that vessel intends to voyage. That is, a BWMS that is technically and operationally appropriate for one vessel may not be so appropriate for a different vessel, or even a similar vessel with a different operating profile. EPA analysis for the proposed rule is based on a similar determination that a wide range of available systems is necessary to accommodate technical and operational differences of varying vessel types, sizes, operating profiles, classes and flag states. The existing discharge standard has promoted through the type-approval process a range of types of BWMS disinfection technologies (including UV, electrochlorination, chemical addition, ozonation, and deoxygenation) that operate under a wide range of conditions allowing vessel operators to select a system that is most appropriate for that vessel, considering factors such as:
• The vessel's ballast tank(s), pump(s), and piping configuration;
• Temperature, salinity, and turbidity range of uptake water in areas where the vessel voyages;
• Duration of voyages and segments of each voyage that can affect the
necessary holding time for certain systems;
• Ballast water capacity and required uptake and discharge pumping rates;
• Treatment system weight and space considerations, including accessibility and acceptability for use in hazardous spaces;
• Availability of service, support, replacement parts, supplies, etc. in areas where the vessel voyages;
• Compatibility of treatment with vessel construction (
e.g.,
corrosivity concerns);
• Power demand and energy consumption to pump ballast and operate treatment system; and
• Safety concerns (
e.g.,
explosivity risks, particularly on oil and chemical carriers).
Certain systems may be more advantageous for certain types of vessels. For example, the choice of many shipowners may be limited to UV systems as compared to chemical-based systems for those vessels that operate in ports around the world that ban or impose very low discharge limits on certain hazardous chemicals (
i.e.,
treatment chemicals) used by certain BWMS. In addition, it may be difficult or impossible for a vessel operator to obtain specific chemicals for certain BWMS in certain ports around the world. Similarly, a vessel owner may choose a chemical-based system because they do not have the electrical generation capacity (or room to add such capacity) onboard to support a UV system. Shipowners' decisions may also be based on the ease of operational and maintenance requirements. As such, it is critical that a range of BWMS be available to the global shipping industry to reduce ANS discharge under a variety of operational and environmental conditions.
Variability is inherent to all well-operated treatment systems. When EPA establishes BAT, it must consider the variability at a well-operated treatment system to ensure that the standard is technologically available. EPA's approach to providing for some variability for well-operated systems in establishing BAT limits in effluent limitations guidelines rulemakings has been upheld by the courts several times. See for example,
Nat'l Wildlife Fed'n
v.
U.S. Envtl. Prot. Agency,
286 F.3d 554, 572 (D.C. Cir. 2002), which upheld EPA's decision to set the monthly average at the 95th percentile by stating that EPA has considerable discretion in determining a technical approach that will ensure that the effluent limitations reasonably account for the expected variability in plant operations while still maintaining an effective level of control. See also
Chemical Mfrs. Ass'n
v.
EPA,
870 F.2d 177, 229 (5th Cir. 1989), where it is upheld that the purpose of these variability factors is to account for routine fluctuations that occur in plant operation, not to allow poor performance. As is typically the case in the effluent guidelines program, operators design pollution control systems to achieve results below the discharge standard on a long-term basis to account for normal variability at well-operated systems.
The goal of the USCG type-approval process is to demonstrate that a BWMS can treat ballast water such that organism concentrations in discharged water are sufficiently low to meet the discharge standard (
e.g.,
less than 10 organisms per cubic meter of ballast water as an instantaneous maximum) for a given number of consecutive valid tests. The individual test results are reflective of the conditions of the water quality at the land-based and ship-based testing facility at the time. The type-approval process acknowledges that there will be variability in how systems are tested but establishes an instantaneous maximum value to verify BWMS performance using a set of challenging, but not rare, water quality conditions representative of the natural environment. Comparing type-approval data for different systems would only be appropriate if all other variables were held constant or under complete control during the test. However, that is not the case. For example, as required in the USCG type-approval process, shipboard testing occurs on systems for a period of six months in the locations where that vessel voyages during that time period, regardless of where else that vessel has voyaged or plans to voyage in the future. As such, the test results illustrate that BWMS manufacturers are having systems tested in a variety of environmental conditions and locations around the world, all with the goal of demonstrating that the BWMS can consistently meet, not necessarily exceed, the IMO discharge standard. Demonstrating a system can achieve this discharge standard regardless of the environmental factors is the standard by which the USCG evaluates these systems. [46 CFR 162.060-10(f)(2)]. To do otherwise is to unfairly favor systems that may have had more favorable test conditions.
Multiple sources of variability exist in type-approval sampling and analysis that also affects the results of type-approval testing. For example, stratification in ballast tanks, variability between tanks, flow rates, and contamination in uptake and discharge pipes are just a few of the considerations that may impact type-approval testing. It is also a challenge to capture and count appropriately sized organisms and to collect samples such that the sample collection process does not physically damage or kill these organisms (which should be counted as dead or nonviable only if such happens as a result of the BWMS, not because of poor sample collection and handling practices). Currently, the ETV Protocol is an EPA and USCG accepted method to evaluate the performance characteristics of commercial-ready BWMS regarding factors such as biological treatment performance, predictability/reliability, cost, environmental acceptability, and safety. Based on the ETV Protocol, the determination of the concentration of living organisms in treated water is done through manual microscope counts by trained microscopists.
The sources of uncertainty are systematic error, which is the loss of organisms during sampling and processing, which can be substantial, and random error, which is the difference in organism counts among analysts and among replicate subsamples, as well as variability across measurements of sample volumes. Counting organisms within a size class under a microscope is also challenging. For one, it is difficult to evaluate and count dormant or immotile organisms. Also, organisms can have a wide variety of shapes making it difficult to assign to a size class. For example, phytoplankton (organisms in the 10-50 micron size class) may be combined in chains or radially and may be either symmetrical or asymmetrical. Also, sizing generally is to be based on the minimum diameter of width of the cell except for things such as spikes, hair, or appendages. The Second Circuit recognized and upheld an EPA rule that considers the margin of error inherent in measuring aquatic organisms to allow for a standard that is not equivalent to also represent the same level of control. See for example,
Riverkeeper, Inc.
v.
U.S. Envtl. Prot. Agency,
358 F.3d 174, 188-89 (2d Cir. 2004) upholding EPA's Tra
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