SHIPPING INDUSTRY BALLAST WATER COALITION

Transcription

1 SHIPPING INDUSTRY BALLAST WATER COALITION October 20, 2008 Via to: Mr. Francis Zagorski New York State Department of Environmental Conservation Division of Water, 4th Floor 625 Broadway Albany, New York Re: Clean Water Act Section 401 Certification for Commercial Vessel and Large Recreational Vessel General Permit (App ID /00001) Dear Mr. Zagorski: The Shipping Industry Ballast Water Coalition 1 (Coalition) is writing to provide its views on the New York State Department of Environmental Conservation s (Department) proposed Section 401 Water Quality Certification (Certification) for the Environmental Protection Agency s (EPA) Vessel General Permit for Discharges Incidental to the Normal Operation of Commercial and Large Recreational Vessels (VGP). The Coalition believes that the appropriate way to address the issue of vessel discharges incidental to the operation of ships is through uniform international standards. At a bare minimum, there need to be consistent and uniform national standards for vessels calling at U.S. ports. The Coalition and its members have supported the enactment of federal legislation to establish a single, national standard to govern vessel discharges and prevent a patchwork of overlapping and conflicting federal and state programs affecting vessel discharges. We regret that the Congress has not yet enacted such legislation. We recognize that due to federal court decisions, we -- the industry, the U.S. Environmental Protection Agency (EPA), and the states -- are all facing a situation where this issue is being addressed through the permitting process of the Clean Water Act. This law and its associated regulatory processes are an unsuitable way to address the introduction of invasive species through ballast water. This already challenging situation becomes fundamentally unworkable if multiple states establish different treatment 1 The Shipping Industry Ballast Water Coalition members joining in submission of these comments are the: American Association of Port Authorities, American Waterways Operators, Chamber of Shipping of America, Cruise Lines International Association, INTERTANKO, Lake Carriers Association, and World Shipping Council.

2 standards and review processes. We urge the Department of Environmental Conservation (Department) to reconsider the conditions that it is proposing in its Certification to avoid these consequences. Our more detailed comments follow. 1. Establishment of Unique State Standards is an Unsuitable Regulatory Strategy The Clean Water Act (CWA) was designed to delegate regulatory authority to the States to deal with fixed point source discharges. Establishing individual state standards is an unsuitable regulatory structure to use to regulate ballast water and other operational discharges from mobile vessels engaged in interstate and international commerce. Even the CWA recognizes it is not feasible to allow multiple states to regulate the same discharge. Just as the CWA today allows only one state to regulate a point source discharge, even though that discharge affects multiple states, so too must there be a single set of consistent regulations for vessels that may visit many states. The maritime industry cannot operate with different states setting different standards for discharges or for treatment technologies on ships that move from state to state. Vessels that call in New York also call in Boston, Baltimore, Norfolk and other East Coast ports. Vessels that call at the Port of New York and New Jersey may be stevedored in Port Newark or Port Elizabeth in New Jersey or in New York. Vessels that are in East Coast domestic service today may be moved to West Coast domestic service tomorrow. Great Lakes vessels that deliver cargo to Buffalo load in Michigan, Wisconsin, Ohio, even Canada. Vessels engaged in international commerce call on ports in many states, and they may have their itineraries changed on a regular basis. Vessels that do not today operate in U.S. foreign commerce may be called on to begin such service tomorrow. Vessel operators need to know with certainty what technology needs to be installed on their ships. Ballast water treatment technology is large and very expensive equipment. There is considerable lead time necessary to install the equipment. It cannot be easily changed once it is installed in a ship. Vessels actively engaged in interstate or international commerce spend a small amount of their time in any one state. It is therefore totally impractical to develop a regime under which different states develop different standards for these vessels. We believe that any serious analysis of these issues can reach no other conclusion. At a minimum, the industry needs a nationally consistent ballast water treatment and discharge standard, which is technically feasible, which can be met by installing commercially available technology, and which also meets the requirements of other nations. Such a standard is necessary to end the uncertainty and the lawsuits and promote the application of agreed technology to reduce the risk of invasive species transfer. 2

3 It is unfortunate that the U.S. Congress has been unable to enact legislation that would establish a single solution that works for the entire United States, and it is unfortunate that EPA is left with no other option than to proceed with a CWA general permitting process. It is not necessary as part of this CWA permitting process, however, for the various States to make this confusing situation even worse by mandating their own ship equipment technology standards that go beyond those already contained in the VGP. We urge New York to defer to the federal government on the issue of establishing national ballast water treatment technology standards and not establish ballast water treatment technology standards as an element of its Certification. Only EPA and the U.S. Coast Guard can ensure that there is a consistent national technology standard, a predictable regulatory environment, and effective action on this issue. 2. New York Lacks the Legal Authority to Impose the Proposed Conditions a. The Department has conceded that it lacks the legal authority to regulate ballast water from international shipping. In its November 10, 1993, Nonindigenous Aquatic Species Comprehensive Management Plan (Plan), the Department stated that: Of primary importance is federal assistance in limiting introductions through transoceanic shipping ballast water. New York State government lacks the ability, resources, and authority to require ballast water exchange before a vessel enters U.S., or New York waters. The Great Lakes Water Quality Agreement of 1978 between the United States and Canada states that enforcing efforts to limit the introduction of nonindigenous aquatic species through transoceanic shipping was a responsibility of both nations [sic] Coast Guards... The federal government must pass legislation to prevent introductions from occurring through ballast water. (Plan at 19, emphasis added.) We agree both with New York s assessment that it lacks the legal authority to regulate ballast water from international shipping and that federal legislation is necessary. The Coalition also agrees with the Department s August 6, 2007, comments in response to EPA s Advance Notice of Proposed Rulemaking in this matter, in which the Department urged uniformity in control mechanisms across the country: EPA should structure its rulemaking in a way that encourages uniformity of controls across states. EPA should give states the option either to administer the vessel discharge program using EPA-developed general permits as a model, or to have EPA do it. This will promote uniformity of controls and give states and permittees flexibility in meeting federal requirements. As soon as reasonably possible, EPA should develop effluent limitation guidelines for harmful pollutant discharges, to further promote uniformity of pollution controls as technology develops. 3

4 b. The New York legislature has made it clear that the Department does not yet have the authority it seeks to apply here. That New York does not currently have legal authority to regulate ballast water discharges is demonstrated by the fact that the New York legislature has multiple bills pending before it that would purport 2 to grant that authority to the Department. Those bills include numbers A01355 (and companion S07113), A10099, A10212, and A Each of these bills would provide some authority for the Department to take the certification action that it proposes to take here, but none of those bills has yet been enacted into law. The Department therefore proposes to exercise authority that it has not, as yet, been delegated by the legislature. Because the Department is a creature of statute, it may exercise only those powers that the legislature has seen fit to bestow upon it. Given the specificity of both the proposed conditions and the pending legislation, there can be no doubt that there is no existing legal basis for what the Department has proposed in the way of conditions. In addition to the fact that multiple bills are pending that would seek to provide the Department with the legal authority that it now lacks, at least two of those bills (companions S07113 and A01355) acknowledge that there is a limit to the extent to which the state may act in this area: The legislature, however, recognizes the international ramifications and the rapidly changing dimensions of this issue, as well as the difficulty that any one state has in either legally [or] practically managing this issue. Again, the Coalition agrees with the legislative expression of the need for caution by states taking unilateral action. Against this backdrop of the Department s longstanding recognition of a lack of state legal authority to regulate ballast water, the fact that the legislature is considering but has not yet passed laws that would purport to give such authority to the Department, and the legislature s admonitions about the scope of its own powers, we turn next to the legal justification that the Department offers in support of its proposed conditions. c. The cited regulation is inadequate to support the proposed conditions. The proposed conditions rely solely on 6 NYCRR Specifically, the Department appears to rely on the language regarding toxic and other deleterious substances, for which the regulation expresses a discharge standard of none in amounts that will... impair the waters for their best usages. The Department s reliance on this exceedingly vague standard fails for several reasons. First, and most obvious, given that the legislature plainly believes that the Department does not currently possess the legal authority to regulate ballast water 2 As discussed further below, there are issues of federal preemption that would arise if such laws were enacted. It is not necessary to reach those issues, here, however, because the statutory authority does not in fact exist. 4

5 discharges a position with which the Department had apparently until now agreed since 1993 this vague regulation, whatever its proper application in another context, cannot be applied to this discharge. Second, the Department makes no attempt to explain how the words of the regulation toxic and other deleterious substances apply to this situation. No definition of those terms is offered, and the Department instead jumps from the language of its regulation to the Clean Water Act definition of pollutant. See proposed Certification at 1-2. That the CWA defines pollutant to include biological material (as does 6 NYCRR 700.1(a)(46)), says nothing about the meaning of the phrase toxic and other deleterious substances as it might apply here. This failure to explain how the sole regulation relied upon applies to the activity at issue renders the proposed conditions facially contrary to law. Third, the geographically undifferentiated application of a single set of discharge standards, for which no scientific basis is offered, is arbitrary and capricious. As the Department admonished the EPA in the context of creating a numerical standard for ballast water discharges: Such a standard must be based on sound scientific evidence that the allowable concentration of viable life forms is sufficiently low to prevent ANS from being introduced and established in U.S. waters via ballast water discharges. Department EPA ANPRM Comments at 18 (August 6, 2007). Rather than offer any independent scientific justification for how it arrived at the discharge standards that it proposes in conditions 2 and 3, the Department candidly admits that it lifted those standards from International Maritime Organization (IMO) and California standards, respectively. Such a wholesale and unexamined borrowing of standards set through processes that had no relation to protection of New York s waters cannot logically, scientifically, or legally be the basis of conditions that, under the CWA, are required to be specifically tailored to water quality concerns expressed by the certifying state regarding its own waters. d. The proposed conditions are preempted by multiple federal laws and regulations, including the EPA s nationwide permit for which the Certification is offered. i. The proposed conditions are expressly preempted by the Plant Protection Act. The Plant Protection Act, 7 U.S.C. 7756(a), expressly preempts state regulation of vessels in international commerce for the purpose of preventing the introduction or dissemination of a plant pest or noxious weed. That statute therefore raises the question of whether the Department may validly request conditions under Section 401 5

6 with respect to discharges of invasive species from vessels that participate in international trades. 3 The Plant Protection Act stipulates that [n]o State or political subdivision of a State may regulate in foreign commerce any article, means of conveyance, plant, biological control organism, plant pest, noxious weed, or plant product in order (1) to control a plant pest or noxious weed; (2) to eradicate a plant pest or noxious weed; or (3) [to] prevent the introduction or dissemination of a biological control organism, plant pest 4, or noxious weed 5. It is widely recognized in the scientific community that numerous invasive species consume significant concentrations of phytoplankton. Phytoplankton are microscopic plants, and since their consumption would be defined as damage, the introduced species consuming them is a plant pest under the statute. A well-known example of a plant pest of this type is the zebra mussel, which is one of the examples offered as a justification for the proposed conditions. Similarly, it is well documented in the scientific literature that various species (e.g., australis and lythrum salicaria (purple loosestrife)) have been introduced via ballast water that would be considered noxious weeds under the Act. Taking into account these definitions and the scientific literature, it appears that a significant portion of injurious invasives found in ballast water and ballast sediment consists of organisms that are directly or indirectly harmful to plants ( plant pests ) and/or plants that are harmful to the environment and natural resources of the United States ( noxious weeds ). Indeed, the Department emphasizes the impact of the invasives that it discusses on plants: Such invasive species have competed with, preyed upon and otherwise altered the Great Lakes environment, resulting in population declines and compromised species viability of the region s native plants, fish and wildlife. Proposed Certification at 7 (emphasis added). Because ships are a means of conveyance for plant pests and noxious weeds, 7 U.S.C. 7756(a) effectively 3 The statute also sharply restricts the authority of states to regulate means of conveyance in interstate commerce, although there is a mechanism under which the Secretary of Agriculture can permit state regulations in exceptional circumstances. See 7 U.S.C. 7756(b). 4 Plant pest is defined at 7 U.S.C. 7702(14) as any living stage of any of the following that can directly or indirectly injure, cause damage to, or cause disease in any plant or plant product: a) protozoan, b) a non human plant, c) a parasitic plant, d) a bacterium, e) a fungus, f) a virus or viroid, g) an infectious agent or pathogen, or h) any article similar to or allied with any of the articles specified in the preceding subparagraphs. 5 The term noxious weed means any plant or plant product that can directly or indirectly injure or cause damage to crops (including nursery stock or plant products), livestock, poultry, or other interests of agriculture, irrigation, navigation, the natural resources of the United States, the public health, or the environment. 7 U.S.C. 7702(10)(emphasis added). 6

7 preempts regulation by the states of the introduction of such pests and noxious weeds via ballast water and other vessel discharges. Because the preemption is categorical and express, the Department has the burden of identifying the invasive species targeted by the proposed conditions and demonstrating that those species (and their associated discharge standards) fall outside of the preempted sphere. Failure to do so will result in a waiver of the right to offer conditions regarding ballast water. ii. The proposed conditions are also preempted because it would be impossible to comply with both the EPA general permit and multiple state standards, and because the proposed conditions would fundamentally undermine the federal objective of a workable national standard. Notwithstanding the fact that Clean Water Act section 401 calls for state certification, including conditions where necessary and supported by law, the Supreme Court has repeatedly decline[d] to give broad effect to savings clauses where doing so would upset the careful regulatory scheme established by federal law. Geier v. American Honda Motor Co., Inc., 529 U.S. 861, 870, citing United States v. Locke, 529 U.S. 89 (brackets and internal quotation in original). Specifically, in Geier the Supreme Court held that ordinary conflict preemption principles apply even in the face of federal statutory savings clauses for state laws where it is impossible to comply with both state and federal law or multiple state standards would undermine the federal purpose. Both factors are present here. Although one could argue that it is not impossible to comply with both the federal standard and the proposed state standard, the reality is otherwise. The simple fact is that, if New York can impose a numeric standard that is different from the federal permit requirements, then each of the certifying states may impose its own standard. There is no reason to believe that that each of those standards could be met by the installation of a single ballast water treatment system, but it is obvious that it is not possible to install multiple systems to address multiple state standards. Moreover, if the federal requirement moves to a numerical standard (as it is expected to do when the Coast Guard completes its work on that project in the near future), there is a good chance that that standard will be different than at least some of the state standards. As is discussed in greater detail elsewhere in these comments, it is physically impossible for vessels in international or Great Lakes trade, calling multiple states on a single voyage, to deal with a multitude of standards. Thus, the first of the two independent grounds for conflict preemption practical impossibility is met here. The second ground for conflict preemption, fundamental interference with the federal purpose, is also met here. Although the CWA generally contemplates a federal/ state partnership, it remains a federal statute. Here, the application of the NPDES program to discharges that Congress never contemplated covering has created a situation in which the only way that the dictates of the Clean Water Act can be met while maintaining the reasonably uninterrupted flow of our nation s water-borne commerce is for there to be a single federal standard. That, of course, was recognized by the Department in its August 2007 comments on the EPA s ANPRM. Those comments are 7

8 quoted above, and their call for nationwide uniformity is especially relevant in this conflict preemption analysis. Where the state itself has recognized that the federally mandated program cannot work unless the state stands aside, then the law requires that the state do so. 3. The Proposed Conditions in the Proposed Certification For Ballast Water Treatment Technology Are Unworkable and Impractical There are two critical elements involved in establishing a specific biological standard for ballast water treatment technology. First, governments must decide and agree what is biologically achievable and acceptable. Second, that standard must be broadly adopted so that a vessel, which will spend limited time in any one jurisdiction and will visit multiple jurisdictions, can meet the needs of the nation s commerce with the installation of one ballast water treatment technology. There are also a number of problems with the ballast water discharge standard proposed in the State s certification. First, the proposed standard ignores the fact that the U.S. government, which is principally responsible for the rules governing interstate and foreign commerce, has not yet decided on the most appropriate, feasible treatment standard that should be applied to vessels calling in U.S. ports. If the Congress fails to do this, we expect EPA, in cooperation with the Coast Guard, to do this in a future amendment to the general permit, but it has not yet done so. This is appropriately a federal decision for the many reasons outlined in the preceding section. Second, the proposed Certification would require a performance standard for ballast water treatment, based on concentrations of species in water, which is 100 times stricter than the standard adopted by the IMO Convention. For vessels built in 2013 and later, the proposed Certification would require a performance standard that is 1,000 times stricter than the IMO standard. The problem is that very few technologies commercially available today have been approved to meet the IMO standard, let alone approved technology for a standard 100 times or 1,000 times more stringent. Any treatment standard requires technology that is technically achievable and commercially available in the time frame proposed, which is not the case with the proposed Certification. Even if the intent of the standard is to try to force technology development, the timeframe for implementing the standard, to be successful, must allow sufficient time for engineering solutions to be scaled-up to meet a standard that proposes orders of magnitude in change. This challenge is further heightened by the massive volumes of ballast water that a given technology must be able to handle. Tankers and bulk carriers utilize massive quantities of ballast water and any treatment system must be able to handle the volume and flow rates associated with these heavily ballasted vessels. This challenge in converting technologies that can handle modest volumes and flow rates to handle ballast water volumes that necessitate the treatment of thousands of metric tons of water in a relatively short time is one of the principal technical challenges facing those companies involved in the development of ballast water technologies. If we are to be successful in achieving stringent standards, such as those desired by the Department, it is 8

9 critical that sufficient lead time is available to create an environment where the necessary technology challenges and scaling issues can be overcome. Third, any technology standard to address this issue must include a feasibility review process that is authorized to delay the effective date of implementation or modify the treatment standard if there is not proven, commercially available technology to meet the standard. Also, in addition to a feasibility review, there needs to be an approval process. Even the few technologies that have been reported to meet the IMO discharge standard have not yet been approved by the United States government. The industry needs to know the specific technology has been approved for use in the United States, something that is also not contemplated by the Certification. The proposed Certification fails to do this, thus creating the probability that it is mandating something that cannot be done. Fourth, the implementation deadlines in the proposed Certification are unrealistic. The January 1, 2012 deadline does not take into account the typical five-year dry-docking schedule for most vessels. The installation of ballast water treatment technology on large ocean going vessels may need to be performed when the vessel is scheduled for drydocking. Furthermore, implementation dates must be a direct function of the stringency of the standard proposed. If the standard is technology forcing (and the standards proposed by the Department clearly are), then the implementation timeframe must be established consistent with the time necessary to allow the various candidate technologies to overcome the inherent challenges involved in meeting stringent standards. Indeed, U.S. regulatory standards have allowed greater lead time for testing and commercialization of the relevant technologies, even in those cases where the technology is currently known. The regulatory body has thoroughly evaluated the necessary development steps to bring a given technology into commercial production and distribution. This is particularly important because the technology must be reliable and effective in meeting the discharge standards stipulated. It will serve no one s interest, nor reduce the risk of the introduction of invasive species, if unrefined technologies are introduced prematurely and the systems fail to meet the biological standards they were intended to serve. Fifth, there must be a grandfather provision allowing the use of previously installed, approved technology. This is necessary to avoid the fundamental unfairness of requiring a vessel to replace expensive, approved equipment when treatment standards change, as is contemplated by New York when the VGP re-opens in five years. A treatment system is a very substantial expense. Lloyd s Register has estimated the mean capital cost of installing a treatment system to be approximately $800,000 for a larger volume system. Using the approximately 3,300 containerships in operation by members of the World Shipping Council as an example, the investment in treatment systems could be over two and a half billion dollars for the liner industry segment of the maritime industry alone. The cost for the largest U.S.-Flag vessels working the Great Lakes has been estimated to be as much as $18 million per ship. If the treatment standards are adjusted, previously-approved and installed technology should be able to be used for the life of the equipment. 9

10 Sixth, New York s permit should recognize that vessels that trade exclusively on the Great Lakes do not and cannot introduce non-indigenous species and exempt them from the ballast water treatment system requirements. While it is true that these vessels do represent a vector for possible spread of exotics introduced by ocean-going vessels, there are many other vectors such as recreational boating and sport fishing. More importantly, the Great Lakes are interconnected. A non-indigenous species that establishes itself in Lake Huron, for example, can easily migrate to New York s water without any assist from commercial navigation or recreational boating. The permit must confine itself to stopping future introductions. Those exotics that have established themselves in New York waters will move about, with only climate and predators dictating where they stop. 4. There Should Be No Deviation Required for Coastal Voyages The draft Certification proposes that a vessel, whose voyage originates from within the EEZ with ballast on board, shall conduct ballast water exchange at least 50 miles from shore in water at least 200 meters deep before entering New York waters. Vessels transiting short distances, such as between New York and New Jersey or between New York and Philadelphia or Baltimore, would run afoul of this coastal voyage provision as they do not transit more than 50 miles from shore. The proposed Certification ignores the deviation clause found in Regulation B-4(3) of the IMO Convention and in section of the VGP. Such a provision would present significant problems for many vessels in coastwise transit. While the focus here is on methods designed to reduce the risk of the introduction of invasive species, it is important to avoid measures that will exacerbate other important environmental objectives. Significant deviations in routing, add to the inventory of numerous air emissions from ships including NOx, SOx, particulate matter, and CO2. The consequent emissions, fuel expended, carbon costs, and time lost in rerouting needs to be weighed against the relative risks associated with these coastal voyages. 5. The Certification Must Allow for Discharge of Bilge Water and Graywater The proposed Certification prohibits discharge of graywater within New York waters. A problem arises in that not every vessel has capacity to hold its graywater. The proposed Certification should therefore be amended so it applies only to oceangoing ships with sufficient holding tank capacity to contain graywater while the ship is within New York waters. Such a system has been in place for three years in the waters of the State of California, whose recommendations and regulatory approaches were cited multiple times as the basis for many of New York s draft Certification provisions. California s Clean Coast Act (S.B. 771) defined sufficient holding tank capacity as a holding tank of sufficient capacity to contain [sewage and] graywater while the oceangoing ship is within the marine waters of the state. California allows that if a vessel has no holding tank, insufficient capacity, or no discharge facility is available in the port, it may discharge graywater without violating the Act. 10

11 The proposed Certificate also prohibits discharge of bilge water within New York waters. This is counter to the EPA s VGP, which allows discharge of bilge water that has been processed through a Coast Guard-approved Oily Water Separator. These systems meet or exceed the EPA s standard of 15 ppm. Also, bilges are not pumped completely dry, another means of preventing any floating oil from being pumped overboard. The EPA has no scientific evidence that these treated discharges have any adverse environmental impacts. The volumes pumped from the bilges are not significant and the concentrations of any oily substance are minute given the 15 ppm standard. Properlymanaged discharges should be allowed within New York s waters. 6. Recommendation and Conclusion If ballast water treatment technology is to be required of vessels serving America s commerce, the United States must develop a consistent, uniform standard for ships calling at U.S. ports, that has realistic time frames for approved equipment installation, and that has a realistic treatment technology feasibility review process. As EPA, the states, and the industry wrestle with the complications arising from Congress inability to address this issue before adjourning this year, we believe it is important that New York and other states not make a bad and confusing situation worse. The proposed unilateral New York treatment standards are not achievable, fail to provide a reasonable feasibility review or implementation schedule, and would contribute to a regulatory landscape that is fundamentally unworkable for sources that operate across multiple states and around the world. State specific ballast water standards will create commercial chaos that will over time lead to a situation where all parties recognize that uniform standards are critical to successfully addressing this problem in an effective manner. 11

12 We fully respect the desire of New York to see the implementation of a comprehensive and environmentally effective ballast water discharge program. However, until such a uniform national treatment standard can be adopted, we recommend that the State not proceed with the standards set forth in the proposed Certification, but work with EPA and the Coast Guard to establish a uniform national set of standards. It will be more effective for the citizens of New York State, the United States as a whole, and all stakeholders, if the states work with EPA, the Coast Guard, and the Congress to define an appropriate international and federal standard that addresses this important problem. Sincerely, AMERICAN ASSOCIATION OF PORT AUTHORITIES AMERICAN WATERWAYS OPERATORS CHAMBER OF SHIPPING OF AMERICA CRUISE LINES INTERNATIONAL ASSOCIATION INTERTANKO LAKE CARRIERS ASSOCIATION WORLD SHIPPING COUNCIL cc: New York Shipping Association Maritime Association of the Port of New York and New Jersey New York Container Terminal Port Authority of New York and New Jersey American Great Lakes Ports Association 12