Shipping industry warns of dire consequences if ballast discharge laws are not uniform, attainable.
By Chris Dupin
Shipping industry advocates are raising the alarm about state regulation of ballast water discharge, saying proposed standards in New York and California are unattainable using available technology.
Rep. Steven C. LaTourette, R-Ohio, said he has been an advocate for preventing the spread of invasive species through ballast water since sponsoring the National Invasive Species Act of 1996. But he said if New York legislation is allowed to stand it would “bring waterborne commerce in the Great Lakes to a screeching halt.”
That opinion is shared by Collister Johnson Jr., administer of the Saint Lawrence Seaway Development Corp., who said if the New York laws implements a standard according to its current timeline, “it would shut down the seaway. We have told them that, the Canadian government has told them that.”
Both support the shipping industry’s call for uniform national standards for regulating ballast water that mirror those agreed to in 2004 by the International Maritime Organization in the International Convention for the Control and Management of Ships’ Ballast Water and Sediments.
The industry’s concern about state rules was the subject of a joint hearing of the House Subcommittee on Coast Guard and Maritime Transportation and the Subcommittee on Water Resources and Environment on July 14.
Rep. Frank LoBiondo, R-N.J., who chaired the hearing, said overlapping federal regulations of the Coast Guard and Environmental Protection Agency and those of individual states are “confusing, contradictory and unsustainable.”
The IMO convention has not yet come into force, nor has it been ratified by Congress. But in testimony at the July 14 hearing, Vice Adm. Brian Salerno, the Coast Guard’s deputy commandant for operations, said his agency is in the final stages of preparing a ballast water discharge regulation.
Salerno said it would follow a two-phase approach:
• The first phase would establish a standard similar to that adopted by the IMO, “consistent with the level of technology currently available,” he said. That would be a “significant improvement over the current practice of mid-ocean exchange.”
• The second phase would be based on the most stringent quantitative discharge limits proposed in state regulations, he said.
The Coast Guard developed its regulations under the authority of the National Invasive Species Act, and Salerno said it worked closely with the EPA, which has a similar mandate under the Clean Water Act to regulate ballast water discharge. Under the Clean Water Act, however, states can create their own, more rigorous standards.
For more than 30 years, an EPA regulation exempted incidental vessel discharges from the permitting and certification requirements of the Clean Water Act, but in 2008, the 9th Circuit affirmed a district court decision vacating the regulation. EPA developed what is called the vessel general permit, which will be used to regulate an estimated 61,000 domestic vessels and 8,000 foreign-flag ships that operate in the United States.
An attempt by shipping groups such as the Lake Carriers Association to challenge the EPA’s decision to incorporate conditions submitted by individual states was turned down in a decision by the U.S. Court of Appeals for the District of Columbia Circuit on July 22.
. Shipping executives say New York State rules, due to come into effect in August 2013, would be 100 times more stringent than the IMO standards for older ships and 1,000 times more stringent for new ships.
The New York rules would affect ships operating in a vast swath of the nation. Vessels would have to comply with them if they are just passing through New York waters on a voyage through the Great Lakes, say from Duluth to Buffalo, or through the St. Lawrence Seaway between Montreal or anywhere on the Great Lakes. The same would be true if they were moving through New York waters on their way to the container ports in New Jersey, or moving gasoline product through Long Island Sound to Connecticut or Rhode Island.
California has new tough regulations already in effect for smaller, newly built ships, and rules will be phased in to include new ships carrying larger amounts of ballast and existing ships in coming years. But the law has yet to affect many ships because it is not clear whether any brand new ships have had to discharge ballast water while in California.
That points up an important difference between the New York and California laws. The New York law would require any ship that is capable of discharging ballast water to have equipment to treat water to the standards outlined in its law, regardless whether they actually discharge water while in New York.
Johnson said the systems would have to be installed on about 240 international ships that call at Great Lakes ports and about 75 Canadian domestic ships.
Glen Nekvasil, vice president of the Lake Carriers Association, said the law would also apply to U.S.-flag lakers carrying cargo to ports such as Buffalo.
The Port of New York and New Jersey was visited last year by more than 4,800 ships of more than 300 tons requiring a pilot, said Ed Kelly, president of the Maritime Association of New York and New Jersey. While some of those calls were by liner ships calling several times a year at the port, the New York rules could affect large numbers of ships that may call the port only once or twice in their entire lifetime.
The California law, in contrast, exempts ships if they do not discharge ballast water. Nicole Dobroski, a staff environmental scientist at the California State Lands Commission, said more than 80 percent of ships do not discharge ballast water when in California. So a ship can avoid violating the California rule if it just avoids discharging ballast water when in state waters.
That would not be an option for many of the bulk ships that call on the Great Lakes, Johnson said. These ships require ballast for stability while handling cargo.
LoBiondo contended the ability of states, under the Clean Water Act, to create their own rules for regulating discharges from ships may function well for fixed factories, but does not work for vessels engaged in international commerce. He said 29 states or Indian territories have created their own standards.
“What we are looking at is New York State dictating to the whole industry what they have to meet and that is an impossible standard. And if they then fail to meet that standard, they face a daily fine of over $32,000 per day,” he said. “This is absurd and ridiculous and cannot be allowed to stand.”
In addition, Steve Fisher, president of the American Great Lakes Ports Association, said shipping companies could be subject to citizen lawsuits that might be filed by environmental groups under the Clean Water Act.
John Berge, a vice president at the Pacific Merchant Shipping Association, said his group has no problem with California requiring ships discharging ballast water to have advanced treatment systems. But he said no equipment exists to meet standards outlined by the law, which, for example, requires “no detectable living organisms” greater than 50 micrometers in diameter, with separate standards for smaller organisms, bacteria and viruses.
In fact, he said PMSA does not believe there is a way to measure in a scientifically rigorous fashion if equipment is meeting those standards.
That contention was supported at the July 14 hearing when Deborah Swackhamer, chair of an EPA science advisory board, told Congress she and her colleagues reviewed data on 51 existing ballast water management systems provided by the EPA. Detailed data for 15 systems was provided and only nine had what she said was reliable data.
She said her panel found five treatment types used by the manufacturers could meet the Phase 1-IMO standard proposed by the Coast Guard.
But the board concluded “none of the existing ballast water management systems can meet a standard that is 100 or 1,000 times more stringent than the phase one standard,” Swackhamer said.
“Significant difficulties are encountered in adapting standard water treatment technologies to shipboard operation,” she said.
The board “concluded that reasonable changes in existing systems are likely to result in incremental improvement, but are not likely to lead to 100 or 1,000 times further reduction in organism concentration. It is likely that entirely new systems will need to be developed,” she said.
“Here you had a panel of expert government scientists conclude this, yet in almost a surreal situation you have staff at the New York Department of Environmental Conservation so dug in and so focused on defending the decision they made last year that they aren’t even willing to accept this non-biased conclusion from the U.S. EPA that the regulations the New York State has put forward are not achievable,” Fisher said. “We are just dumbfounded that New York State stands by its position.”
“We just completely disagree” that the technology does not exist, said James M. Tierney, assistant commissioner for water resources in the New York State Department of Environmental Conservation.
He said a system that uses filters and chlorine dioxide for treating ballast water, manufactured by a Massachusetts-based Ecochlor, would meet the state’s requirements, and it is already being used on a couple of ships.
Matson has been using and testing an Ecochlor system under a Coast Guard program on a bulk carrier it operates. The Moko Pahu
carries sugar between Hawaii and California and moves grain and other commodities on overseas charters.
Lisa Swanson, director of environmental affairs at Matson, said the system has worked well, though the company has not been able to do all the testing it would like to because the ship is used sporadically.
“If you put that on your ship you are compliant with New York’s requirements. It is existing technology,” Tierney said, adding there are other technologies available.
But Fraser noted New York State is not the sole regulator of shipping. While a ballast water system can be tested on a ship, regular commercial use would require approval by the Coast Guard, a classification society and a ship owner’s insurer.
The Coast Guard has yet to establish an approval program for ballast water systems, and it will be interested not only in whether it’s an effective disinfective, but also whether it can be used safely, he said.
It’s one thing for a system to be used at a sewage treatment plant, another in the North Atlantic during a storm. Swanson said her company once tested a system that used ultraviolet light to disinfect ballast water, but found it had a problem with light bulbs in the equipment breaking.
On large ships, systems may cost more than $1 million to purchase and install.
Johnson said he does not believe such systems will be approved for four or five years.
Tierney defended the right of states to regulate ballast water, noting invasive species have devastated New York waters. He said zebra mussels today make up half the biomass of the Hudson River.
Thom Cmar, an attorney with the National Resource Defense Council, said “no one can say with confidence that the IMO standard is good enough to stop spread of invasive species.
“The reason that New York and California are calling for more stringent standards is that they have had independent scientific reviews that have told them that their more stringent standards are necessary to prevent the introduction of new invasive species and all of the costs economic and ecological that are associated with that,” he said.
“Whether those standards can be complied with existing technology, I think it depends on what you mean by existing technology. We’re not talking about rocket science here, we are talking about swimming pool science, essentially,” he said. “These are commonly used waste water treatment technologies.”
The challenge, he said is to take existing technology and make sure it works well on vessels.
“Industry has had 20 year or more to do that, this is not a new thing. And the main thing that we have seen in seeing this debate play out over time, is that unless there is a strong mandate to meet standards in place then, there will be no incentive for the industry to make the appropriate investments,” Cmar said. “The technologies will be developed to whatever the standard is in place.”
Reuben P. Keller, a lecturer in ecology at the University of Chicago, said by the time most invasive species are discovered, they are present in larger numbers, are well established, and may have arrived years or decades earlier.
He said while ballast tanks were undoubtedly an efficient means of spreading aquatic species, how many organisms are needed for a population to establish themselves was unknown.
“Do the IMO standards or 10 times or 100 times or 1,000 times IMO standards reduce the rate of invasion to some level that is negligible or acceptable? I don’t think anybody has the answer to that,” he said.
But he agreed “if the IMO standards are ever ratified, it’s a huge step forward.”
At the same time, “New York and California are right to be getting absolutely frustrated,” he said. “We’ve known — the shipping industry, scientists, politicians, and to some degree even the public — that ships move ballast water invaders around, and they have known this for decades … I can understand the frustration of states who are saying in the absence of any higher authority we have to do what we can.”
Keller noted an isolated body of water such as the Great Lakes could be particularly vulnerable to an invasive species that arrives and, because it is unchallenged by natural predators, spreads and disrupts an entire ecosystem.
For example, the zebra mussel and another bivalve, the quagga mussel, have spread like wildfire in the lakes. The filter feeders “short circuit” the food chain, sucking up small organisms that would normally feed other animals.
Another invasive species in the Great Lakes is the spiny water flea, a zooplankton that floats around in the water and eats other plankton. Zooplankton are usually eaten by small fish, but the problem with the spiny water flea is that it has a spiky tail that is unpalatable to many fish.
Biocontrols are sometimes found for invasives, for example, salmon were introduced into the Great Lakes in the 1960s to control surging numbers of smaller fish called alewives that had gotten into the lakes through the Welland Canal. However, they don’t always work.
For example, there was hope when another invasive species, the round goby, was found in the lakes, they would eat the small zebra mussels. But the little round gobys only feed on juvenile mussels and a single zebra mussel can produce up to 100,000 offspring annually. So the zebra mussel continues to spread, invading new waters, such as the Mississippi and Colorado rivers.
In September, LoBiondo introduced H.R. 2840, which would impose the Coast Guard-IMO standard and not allow states to set their own under the Clean Water Act. The standard would be reviewed for strengthening every 10 years or upon petition from the states, but ships would be able to continue to use their old systems.
In the meantime, LaTourette sponsored an amendment that was added in committee to the fiscal year 2012 Department of Interior appropriations bill that would deny funding for the EPA to states adjacent to the Great Lakes if they impose a ballast water requirements that are more stringent than those of the Coast Guard or are adopted by the IMO.
At the hearing James Carlton, a Williams College professor who chaired a National Research Council Committee on Numeric Limits for Living Organisms in Ballast Water (“we won’t try to say that three times fast,” joked LoBiondo), said, “there is evidence that significantly reducing the number of released organisms reduces invasion probability.”
That led Fisher to caution against “making percent the enemy of good.”
If the industry “delays things trying to get to perfect, we are not getting to good, and that is delaying things as far as trying to protect the environment,” he said.