The Latest on the Ballast Water Conundrum

Mainbrace | March 2016 (No. 2)

Jeanne M. Grasso and Dana S. Merkel

The challenges faced by the maritime industry in implementing international and domestic ballast water requirements continue unabated. These challenges may be getting even more challenging in the next year or so.

Internationally, new ratifications to the International Maritime Organization’s (“IMO”) International  Convention for the Control and Management of Ships’ Ballast Water and Sediments (“Convention”) mean the Convention is very close to entering into force. In the United States, which is not party to the Convention, the U.S. Coast Guard (“USCG”) issued a revised policy addressing extensions for the installation of ballast water treatment systems and, shortly thereafter, rejected an “equivalency request” from four ballast water treatment system manufacturers, which would have helped alleviate the need for these extensions, which now number more than 4,000. In addition, the U.S. Second Circuit Court of Appeals ruled that the U.S. Environmental Protection Agency (“EPA”) acted arbitrarily and capriciously in drafting the ballast water provisions of its Vessel General Permit for Discharges Incidental to the Normal Operation of Vessels (“VGP”), thus creating more uncertainty.

The Ballast Water Management Convention—Three New Ratifications and More Forthcoming

The Convention establishes standards and procedures for the management and control of ships’ ballast water and sediments. It requires an approved Ballast Water and Sediment Management Plan, a Ballast Water Record book, and, generally, a type-approved ballast water treatment system.

For the Convention to enter into force, it must be ratified by a minimum of 30 parties representing at least 35 percent of the global fleet. Morocco, Indonesia, and Ghana ratified the Convention in November 2015, bringing the total number of ratifications to 47. However, IMO recently confirmed that, even with these new ratifications, the total tonnage falls just short at 34.56 percent. Significantly, Panama has announced its intention to ratify and other countries may follow suit. Panama, however, is reportedly pushing the IMO to first resolve concerns expressed by shipowners relating to the differences in the type-approval processes between IMO and the United States. Reports indicate that Belgium will also ratify soon, though it is not anticipated that Belgium’s fleet has enough tonnage to push the percentage over 35 percent. If Panama’s concerns can be alleviated, or if other countries ratify, as expected, it is likely that the Convention will enter into force sometime in 2017.

Once the Convention is in force, existing vessels will generally be required to come into compliance by the first IOPP renewal survey. To date, there are 58 treatment systems approved by administrations per the Convention. Unfortunately, these systems will not be adequate for use in the United States, at least for the long-term, as the testing protocol for treatment systems in the United States is currently more stringent than IMO’s protocol.

USCG Regime—Wanted Dead or Alive

The United States is not a party to the Convention and has its own regime for ballast water management. It provides several options for compliance, most of which, however, are not practical for the vast majority of ships. The USCG applies the same standard as IMO, albeit with a more stringent testing protocol known as the Environmental Testing Verification (“ETV”) protocol. None of the 58 IMO type-approved systems are type-approved by the USCG, as yet. In fact, there are currently no USCG type-approved systems. In the simplest terms, the ETV protocol requires organisms to be “dead,” whereas the IMO protocol requires them to be “non-viable.” This difference in approach has made it difficult for manufacturers to get their systems type-approved by the USCG, especially those systems using ultraviolet light-based (“UV”) technologies. That said, the USCG anticipates that some chemical systems may be approved by year’s end.

Because of the practical challenges of “getting to dead” with UV systems, four manufacturers requested that the USCG’s Marine Safety Center approve the “most prob- able number” (“MPN”) method as an equivalent means of demonstrating compliance with the ETV protocol. The MPN method is widely used in other applications in the United States and around the world. However, in December 2015, the USCG preliminarily denied the equivalency requests, stating that the ETV protocol requires measuring the ability of a treatment system to kill organisms, whereas the MPN method measures the viability of an organism to reproduce after treatment, and thus the methods were not equivalent. The manufacturers have appealed the Marine Safety Center’s decision to the USCG Commandant. Reversal of the Marine Safety Center’s preliminary decision could pave the way for USCG type-approvals of UV systems and stave off many problems that will inevitably come to the forefront once the Convention is ratified and implementation commences.

USCG Policy Revisions and Clarifications

In November 2015, the USCG revised its policy and streamlined the process for vessel owners and operators to apply for an extension to their compliance date for installing ballast water treatment systems. These policy changes provide guidance with regards to the meaning of the “first scheduled drydocking” and modify the duration of extended compliance dates. Per USCG regulations, a vessel’s compliance date is the first scheduled drydocking after January 1, 2014, or January 1, 2016, depending on the vessel’s ballast water capacity. The USCG clarified that the “first scheduled drydocking” means the date that the vessel enters the drydock, regard- less of when the vessel exits drydock. The USCG also clarified that an emergency drydocking is not considered the first scheduled drydocking unless this drydocking also includes the required bottom survey to endorse the vessel’s Certificate of Inspection or international statutory certificates. Finally, underwater inspection in lieu of drydocking is not considered the first scheduled drydocking. The USCG also revised the duration of extended compliance dates. In the past, the extensions expired on a specific date with no relation to the vessel’s drydock schedule. For example, a January 1, 2018, expiration date meant that the vessel had to be in compliance by that date, even if not scheduled for drydock before that date. Moving forward, however, extensions will expire on the “next scheduled drydocking” after the vessel’s initial compliance date. This should make it much easier for shipowners to plan and budget for the installation of a ballast water treatment system and evaluate systems for appropriateness once they are type-approved. For those vessels with existing extension letters, there is no need to do anything now; this change will be reflected when the vessel requests a supplemental extension.

EPA Acted Arbitrarily and Capriciously

On October 5, 2015, the Second Circuit Court of Appeals unanimously ruled, in Natural Resources Defense Council  v. EPA, that EPA acted arbitrarily and capriciously in issuing the ballast water provisions included in the current VGP. Most notably, the ruling stated that EPA failed to adequately explain why stricter technology-based effluent standards should not be applied, failed to give fair and thorough consideration to onshore treatment options, and failed to adequately explain why pre-2009 Lakers (i.e., vessels trading exclusively on the Great Lakes) were exempted. The court remanded the matter to EPA to better justify or revise its approach in accordance with the ruling. In the meantime, the current VGP remains in effect. EPA intends to address these issues ruling during the development process for the 2018 VGP, a draft of which is expected during the summer of 2017.

It is possible, though unlikely, that EPA will alter its VGP ballast water provisions and diverge from the standards used by the USCG and IMO. This fear alone creates uncertainty for those striving to comply with both the VGP and USCG ballast water requirements, as well as the IMO’s. Ship owners/operators have struggled to understand and comply with these somewhat disparate and overlapping requirements, including the implications of EPA’s Enforcement Response Policy for EPA’s 2013 Vessel General Permit issued in late 2013.

Conclusion

Ballast water regulation continues to be dynamic and difficult in terms of ensuring compliance. The entry into force of the Ballast Water Convention will pose additional challenges for vessels operating in U.S. waters due to the fact that the United States is not party to the Convention and imposes its own, more stringent, ballast water regime. Thus, owners/operators may need to install ballast water treatment systems to meet Convention requirements, even though such systems may not ultimately receive USCG type-approval. The possible revisions to the ballast water provisions of the VGP also complicate compliance challenges. It is thus important for ship owners and operators to stay abreast of these ongoing developments to adequately plan and budget for ballast water compliance in all areas of operation around the world.