Pollution Control Agency

Transcription

1 Minnesota Pollution Control Agency August 17, lafayette Road North I St. Paul. Minnesota I I TTY I Opportunity Employer TO: INTERESTEDPARTIES RE: Federal Clean Water Act Section 401 Water Quality Certification of u.s. Environmental Protection Agency Vessel and Small Vessel General Permit Enclosed for your information is a copy of the Minnesota Pollution Control Agency (MPCA) Citizens' Board (Board) Item documents for the proposed Decision to approve the staff recommendation and submit to the U.S. Environmental Protection Agency (EPA) the 401 Water Quality Certification of the EPA Vessel General Permit, where the key issue is ballast water discharge and its role in the aquatic invasive species problem and a copy of the Board Agenda. The Board packet includes: Proposed Findings of Fact, Conclusions of Law, and Order for the 401 Water Quality Certification; Comment letters received on 401 Water Quality Certification; and Responses to written comments received for this project. State Register Public Notice; Final Proposed 401 Certification of the EPA 2013 Vessel General Permit and Small Vessel General Permit There were sixteen comment letters received regarding the project. In an effort to save postage and resources, these comment letters and the above permit documents may be reviewed at the following locations: the MPCA offices in St. Paul and Duluth, and Duluth Public Library at S20 West Superior Street, Duluth, Minnesota SS802. Requests for copies of these comment letters and Board documents may be made by contacting the St. Paul office at 6S1-7S The decision to approve the staff recommendation and submit to the EPA the 401 Water Quality Certification of the US Environmental Protection Agency Vessel General Permit Board Packet may also be viewed on our MPCA Web site at The Board Item will be presented at the MPCA Board Meeting. Please refer to the enclosed Board Agenda for specific location, dates, and times. We encourage your attendance at the Board Meeting. If you have any questions regarding the enclosed Board Item or the specifics of the meeting, feel free to contact Kate Frantz of our staff at 6S1-7S Sincerely, ~ Division Director Industrial Division KF:rm Enclosures

2 MINNESOTA POLLUTION CONTROL AGENCY Industrial Division Water QuoJity Permits Board Item Cover Sheet MEETING DATE: August 28, 2012 DATE MAILED: August 17,2012 Presenter(s): Kate Frantz Phone Number: Supervisor: JeffUdd ~ Phone Number: Dave Richfield ~ Phone Number: Manager: Jeff Phone Number: Division Director: Jeff Smith ~ Phone Number: Ass!. Co.: (if issue applies to water or air issue) Rebecca Flood Phone Number: Deputy Commissioner: Michelle Beeman Pbone Number: Attorney: Ann Cohen Pbone Number: TITLE OF BOARD ITEM: Request for Approval of the Federal Clean Water Act Section 401 Water Quality Certification of the U.S. Environmental Protection Agency Vessel and Small Vessel General Permits WCATION: TYPE OF ACTION: Cityffownship 401 Water Quality Certification SI. Louis County RECOMMENDED ACTION: Approve Submittal of 401 Water Quality Certification for U.S. Environmental Protection Agency Vessel General Permit (and Small Vessel General Permit) ISSUE STATEMENT: The Minnesota Pollution Control Agency (MPCA) staff requests approval of the Federal Clean Water Act Section 401 Water Quality Certification (401 Certification) of the U.S. Environmental Protection Agency (EPA) Vessel and small Vessel General Permit and submission to the EPA. The draft 401 Certification was published in the State Register on May 7, This Certification certifies that with the conditions described in the letter,.the EPA Vessel General Permit will meet Minnesota's water quality standards. The MPCA staff recommendation is based on the review of the EPA Vessel General Permit and supporting documents, coordination and communication with other Great Lakes States and federal agencies, comments and responses from industry groups, environmental groups and citizens. The MPCA staff recommends that the MPCA Citizens' Board (Board) adopt the individual Findings of Fact, Conclusions of Law, and Order authorizing submission of the 401 Certification to the EPA. Printed on recycled paper containing al/easl 30% fibers from paper recycled by consumers. Telephone Device/or Deaf(fDD): / ; Loca/65J This material can be made available in other formats, including Braille, large type or audio tape, upon request.

3 ATTACHMENTS: I. Findings of Fact Appendix A: Comment Letters Appendix B: Response to Comments 2. State Register Public Notice 3. Final Proposed 401 Certification of the EPA 2013 Vessel General Permit and Small Vessel General Permit Printed on recycled paper containing at least 30% fibers from paper recycled by consumers. Telephone Device/or Dea/(TDD): ; Local This material can be made available in other formats, including Braille, large type or audio tape, upon request.

4 MINNESOTA POLLUTION CONTROL AGENCY Industrial Division Water Section U.S. Environmental Protection Agency Vessel and Small Vessel General Permits Request for Approval of Findings of Fact, Conclusions of Law, and Order and Authorization to Submit the Federal Clean Water Act Section 401 Water Quality Certification for the U.S. Environmental Protection Agency Vessel and Small Vessel General Permits August 28, 2012 ISSUE STATEMENT Request for approval of the Federal Clean Water Act Section 401 Water Quality Certification of the U.S. Environmental Protection Agency Vessel and Small Vessel General Permits I. BACKGROUND: A. Ballast Water and Aquatic Invasive Species The Great Lakes water transportation industry is vitally important to Minnesota s economy. However, ballast water discharges to Lake Superior and associated harbors from oceangoing (Salties) and Great Lakes-only (Lakers) vessels may contain aquatic invasive species (AIS) that could survive in their new location, upsetting the local aquatic ecosystem. AIS compete with native species for food and habitat, alter aquatic ecosystems, and cause significant economic impact. Since the opening of the St. Lawrence Seaway in 1959, discharges of ballast water from commercial vessels has been identified as the leading source of recorded introductions of aquatic invasive organisms into the Great Lakes (National Academy of Sciences Special Report 291, 2008). It is well established that ballast water from ocean-going vessels can carry within their tanks, and potentially introduce, species from foreign ports. Vessels that are restricted to the Great Lakes system are not immune. Due to the large volume of ballast water that Laker vessels transport around the Great Lakes annually, the United States and Canadian Laker fleets play a role in spreading and dispersing species already introduced and established in the

5 Great Lakes (Cangelosi and Mays, 2006). Therefore, an unmitigated discharge of ballast water from any of these vessels represents a risk to the Lake Superior ecosystem and Minnesota s inland waters. Ballast water is typically ambient water taken onboard to assist with vessel draft, buoyancy, and stability. Large vessels (e.g., container ships, bulk carriers, other cargo vessels, tankers, and passenger vessels) normally have dedicated ballast water tanks. The discharge rate and chemical and biological nature of the ballast water varies by vessel type, ballast tank capacity, deballasting equipment, and the source of the ballast water. In 2005, more ballast water was discharged to Minnesota Lake Superior harbors than any other Great Lakes port. The Duluth-Superior harbor received 5.4 billion gallons of ballast water and the Two Harbors port received 1.9 billion gallons. The port receiving the next highest volume of ballast water discharge, Calcite, Michigan, received 0.88 billion gallons (Study by Fisheries and Oceans Canada and provided in a June 18, 2008, presentation by Chris Wiley of Transport Canada * ). In 2007, approximately 6 billion gallons of ballast water was discharged in the Duluth/Superior port. The Duluth Seaway Port Authority estimates that approximately 5 percent of the ballast water discharged to Lake Superior is from oceangoing vessels whereas 95 percent comes from Lakers. As a source of domestic drinking water, aquatic habitat, industrial cooling water, manufacturing process water, and recreational and commercial fishing, Lake Superior and Minnesota s inland waters are vulnerable to impacts by invasive organisms. Once these invasive species are established in Lake Superior or associated ports, they can potentially move into Minnesota s inland lakes and rivers and have significant impacts on water resources throughout the State. In cooperation with the Minnesota Department of Natural Resources (DNR), the MPCA staff has focused its efforts on appropriate regulation of ballast water discharges to minimize the threat of AIS into the Minnesota waters of Lake Superior. * It should be noted that these numbers only include the vessels that were in the study, so the actual volumes discharged may be considerably higher

6 B. Ballast Water Regulatory Activity and Court Actions 1. State Level The MPCA began working on a ballast water program in early 2007 with the goal of issuing a permit by October 1, The MPCA initially intended to issue its ballast water permit as a joint National Pollutant Discharge Elimination System (NPDES)/State Disposal System (SDS) Permit. However, the U.S. Environmental Protection Agency (EPA) informed the MPCA that the MPCA was not delegated the authority to issue NPDES permits for ballast water discharges and that only the EPA has the authority to issue NPDES permits for ballast water discharges. The MPCA therefore determined that the appropriate tool to regulate ballast water activities is the State Disposal System (SDS) Permit. The MPCA is authorized to administer the SDS Permit Program under Minn. Stat. ch. 115, including the State Water Pollution Control Act. The Minnesota Center for Environmental Advocacy (MCEA) filed a lawsuit in August 2007, after the MPCA was already in the process of developing a ballast water permit. MCEA s lawsuit sought to require the MPCA to issue its permit by March In April 2008, a Ramsey County Court decision affirmed the MPCA s original schedule. In addition, State legislation enacted in 2008 and effective July 1, 2008, specifies requirements related to ballast water record books and Ballast Water Management Plans (BWMPs). It also requires the MPCA to approve the BWMPs. The MPCA issued the SDS Ballast Water Discharge General Permit in September of The SDS general permit included numeric ballast water discharge standards based on a final but not yet ratified regulation of the International Maritime Organization (IMO). Following issuance of the SDS general permit, the National Wildlife Federation (NWF) filed a lawsuit claiming the IMO standard is too weak and not protective of the environment. NWF has advocated for discharge standards more stringent than the IMO discharge standards. Again, the MPCA successfully defended the SDS general permit. While the discharge of the fewest possible number of organisms is desirable, it is the MPCA s position that with the current data available, there is no clear - 3 -

7 basis for calculating more stringent numeric discharge standards and no clear path to achieve more stringent standards. 2. Other Great Lakes States The MPCA has spent considerable effort coordinating with other Great Lakes states. Ballast water regulatory approaches for other Great Lakes states range from state permits (including Michigan and Wisconsin) to 401 certifications. Since the release of their latest draft Vessel General Permits, the EPA has lead an effort to promote communication and coordination among the states to assure the most consistent 401 certifications possible. Some inconsistencies between various state 401 certifications will exist. The most significant concerns are associated with numeric ballast discharge standards and the schedule for implementation of treatment technologies. Since these requirements were part of the SDS permit issuance in 2008, the MPCA staff anticipates possible resolution to the significant inconsistencies during reissuance of the SDS permit in Federal Regulations The MPCA s goals include the development of federal ballast water regulations that protect Minnesota waters, and minimize the need for state regulatory activities. Following is a summary of federal regulatory activities: a. EPA Vessel General Permit The EPA issued its Vessel General Permit (VGP) in December 2008, and at that time did not require the installation of ballast water treatment systems. Minnesota s November Certification of the VGP requires all vessels transiting to Minnesota waters to acquire and comply with the Minnesota Ballast Water Discharge General Permit (MNG300000). Under Administrator Lisa Jackson, reissuance of the VGP became a priority for the EPA. The EPA draft 2013 Vessel General Permit (2013 VGP) was available for public comment from November 30, 2011, until February 21, The MPCA and DNR submitted joint comments to the EPA regarding the draft permit. In addition, the - 4 -

8 EPA requested that the states submit 401 Water Quality Certifications, as applicable by June 30, This date was subsequently extended to October 1, b. U.S. Coast Guard The U.S. Coast Guard has developed and recently published a Final Rule that addresses AIS in ballast water. The effort to develop the Final Rule took several years and public notice of the final regulations occurred in early The Final Rule shares many commonalities with the EPA s 2013 VGP, and it is anticipated that any inconsistencies between the regulations will be resolved through the Obama Administration s Office of Management and Budget review. c. U.S. Legislation Legislation that would require the installation of ballast water treatment systems, as well as legislation that would limit the states abilities to regulate ballast water discharges, has been introduced to the U.S. Congress multiple times, but to date has not been passed. C. 401 Certification Process Under Section 401 of the Clean Water Act, prior to a federal permit being issued for activities that could impact waters of the United States, affected states must first provide a 401 Certification determination to ensure that activity would be in compliance with state water quality standards. In Minnesota, the MPCA administers the 401 Certification Program. Within the 401 Certification process, the options for the MPCA are to grant the 401 Certification, grant it with conditions, deny the 401 certification, or waive it. Granting a 401 Certification with or without conditions indicates that the permit, in this case the 2013 VGP, will not violate any applicable state water quality standards. Denying a 401 Certification indicates that the permit will violate state water quality standards and therefore cannot be issued in the state. Waiving a 401 Certification means that the state has remained silent on the permit, and therefore the permit can go into effect in the state

9 Minn. R subp.1 requires a 401 Certification to be available for public notice for a minimum of ten days. In addition, according to Minn. R subp. 1, a 401 Certification must include the name and address of the certificate holder, in this case the EPA, a statement that the agency has examined the section 401 certification application and any other information furnished by the applicant and bases its certification upon an evaluation of this information that is relevant to water quality considerations, a statement that there is reasonable assurance that the activity will be conducted in a manner that will not violate applicable water quality standards, and the terms and conditions required to ensure that the 401 Certification will be consistent with water quality standards. D. Stakeholder Involvement The MPCA staff has been working and communicating closely with stakeholders interested in the 401 Certification. These stakeholders have included representatives of shipping companies, trade associations, conservation organizations, Canadian government representatives, environmental groups, citizens, natural resource experts, Great Lakes state agencies, Minnesota Department of Natural Resources, the National Park Service, EPA, and consultants. The MPCA invited stakeholders to attend a Public Meeting at the May 22, 2012, MPCA Citizen s Board Meeting regarding the 401 Certification. Several stakeholders made comments to the MPCA Citizen s Board at the May meeting and have also provided comments as part of the public notice period. E. Public Notice The MPCA drafted the 401 Certification and placed it on public notice from May 7, 2012, to May 28, During the 21-day comment period, the MPCA received a total of 16 comment letters including dozens of attachments and supporting documents. The letters came from industries or associated industry associations, environmental organizations, and government agencies. Copies of the comments are included as Appendix A to this Board Item

10 II. DISCUSSION: A. The 401 Certification conditions The proposed final 401 Certification has been drafted based on the review of the EPA Vessel General Permit, the associated factsheets and supporting documents, and careful review of comments. The 401 Certification includes the following conditions: 1. Compliance With Minnesota SDS Permit The SDS general permit requires the vessel owner or operator to implement Best Management Practices (BMPs) for the management of ballast water as required by the Ballast Water and Sediment Management Plan. The permit also establishes ballast water discharge limits to be achieved by January 1, 2012, for new vessels and January 1, 2016, for existing vessels. These biological performance standards are based on Section D-2 of the IMO International Convention for the Control and Management of Ships Ballast Water and Sediments (Convention), which have been generally accepted throughout the international shipping community, and have been included in the EPA s draft 2013 VGP and the US Coast Guard Final Rule. The Minnesota SDS permit schedule for discharge limit implementation is not entirely consistent with other regulations. The MPCA anticipates this will be a discussion point when the SDS permit is reviewed for reissuance at its expiration in Another area of interest is establishment of numeric discharge limits for Lakers. Currently the EPA draft 2013 VGP and the US Coast Guard Final Rule do not include numeric discharge limits for many Lakers. The MPCA anticipates this will also be a discussion point in 2013 when the permit expires and is reviewed for reissuance. 2. Numeric Water Quality Based Effluent Limitations (WQBEL) Determination for Ballast Water Discharges A numeric WQBEL, limiting the number of organisms that can be released to the environment was reviewed by the MPCA staff as part of this 401 Certification process. Michigan has developed a - 7 -

11 proposal based on a series of conservative assumptions, which taken together, sets a numeric WQBEL to a level of roughly 100-times more stringent than IMO standards, which they believe to be protective. Minnesota, including experts at both the MPCA and the DNR, have reviewed the proposal carefully and have determined it is not technically supportable due to lack of data. Our determination is consistent with the conclusions of a study released last year by scientists assembled under the National Academies National Research Council. This 401 Certification determination is similar to the determination that MPCA staff made as part of the SDS general permit. Minnesota supports further data collection and development of a numeric WQBEL, specifically the generation of monitoring data, the improvement of testing and quality control technologies to lead to more reliable data, and better technologies. In September 2012, the EPA is convening a workgroup of scientists that is developing a plan for the data collection needed to calculate a numeric WQBEL. 3. Requirement to continue conducting exchange and flushing for voyages originating beyond the Exclusive Economic Zone (EEZ) Minnesota s 401 Certification will include a requirement that all vessels that operate outside the EEZ and more than 200 nautical miles from any shore, and enter Minnesota waters via the St. Lawrence Seaway shall perform open-ocean ballast water exchange (BWE) or saltwater flushing before entering the Great Lakes St. Lawrence Seaway system. In the absence of onboard treatment technology, BWE has proven an effective means of reducing the risk of new invasive species introductions. Requiring BWE after onboard treatment technology has been installed has been suggested to provide reduction of organisms beyond the IMO D-2 standard, though evidence is unclear at this point since onboard treatment technology has not been widely utilized. The finalized US Coast Guard Rule requires oceangoing vessels without onboard treatment technology to use BWE, though it does not require the continuation of BWE after treatment technology has been installed. Minnesota finds that the - 8 -

12 continuation of BWE, including the combination of treatment with BWE, is needed to comply with the Minnesota State statutes and rules. 4. Emergency Control of Ballast Water Discharge Minnesota finds that the emergency control of ballast water discharges that are determined to be high risk as set forth in this requirement, are needed to prevent impairment of waters for their designated uses and are thus needed to comply with the Minnesota State statutes and rules. In accordance with 40 CFR (e)(2), this condition cannot be made less stringent and still comply with State water quality standards. Such ballast water discharges that have been determined to be high risk, in the absence of onboard treatment technologies, need to be controlled to prevent the introduction of an unlisted nonnative aquatic plant or wild animal species, which is prohibited without notice to the Commission of the DNR, as defined in Minn. Stat. 84D.06. This requirement adds no new requirement or deadline for ballast water treatment, but instead offers additional opportunities to manage ballast water discharge via methods in the interim prior to the installation of onboard treatment technologies. 5. Coverage of Lakers that operate exclusively in the Great Lakes The Lake Carriers have developed voluntary best management practices to reduce the risk of new invasive species introductions. The BMPs are immediately implementable and have been included in many ballast water sediment management plans submitted under the SDS general permit. The BMPs reduce risk of invasion, and are immediately feasible and implementable, so the MPCA believes it is appropriate to include them in the 401 Certification. 6. Monitoring Requirements Minnesota s 401 Certification states that vessels that are required by the 2013 VGP to install treatment technology must monitor ballast water discharges at least once annually for the IMO - 9 -

13 biological parameters, which will provide data regarding whether the installed treatment technologies are working to adequately meet the IMO standards. Since vessels operating exclusively in the Great Lakes are not required by the 2013 VGP or the US Coast Guard Final Rule to install ballast water treatments systems at this time, Minnesota s 401 Certification requires these vessels to have the capacity to collect organism samples from ballast water discharges. Monitoring of total composition and enumeration of all organisms greater than or equal to 10 micrometers in size will be required a minimum of once annually. Alternatively, vessels may propose and complete a ballast discharge biological study approved by the MPCA. The study must include actual discharge data representing designated vessels that may discharge native and non-native organisms into Minnesota waters. The purposes of the study must include an evaluation of the risk that ballast discharges pose to Minnesota waters. Either alternative may be completed by vessels operating exclusively in the Great Lakes. 7. Biocide Usage Because residual biocide discharges are regulated by the SDS general permit, discharge limitations for residual oxidants, and procedures for obtaining authorization to use other chemical additives are incorporated by reference to the permit. Vessels which are covered by the EPA 2013 VGP must still obtain any permits required by the state of Minnesota for vessel discharges and comply with all requirements in the applicable permit at the time of compliance review. 8. Other State Regulations This requirement clarifies that obtaining coverage under the 2013 VGP does not release any person from the duty to comply with state laws, statutes and rules. All vessels must comply with the requirements of Minn. Stat and any other applicable state law, statute or rule

14 B. Revisions of the 401 Certification Based on comments received during the public notice period, the MPCA has proposed numerous edits and revisions to clarify the applicability and intent of each requirement. In addition, three amendments are proposed as follows: 1. Elimination of ballast water exchange requirement for vessels operating within the EEZ. The proposed elimination of this requirement is due to significant applicability and logistical challenges. Comments and concerns include confusion generated by the use of the term EEZ, feasibility concerns (particularly with the Canadian domestic fleet), potential negative environmental impact, and inconsistencies with other states regulations. Further coordination and collaboration with other regulators is needed before a feasible proposal can be recommended. 2. Modification of monitoring requirements for vessels not required to achieve compliance with numeric ballast discharge limits. The 401 Certification requires annual monitoring of organisms discharged by vessels operating exclusively in the Great Lakes and exempted from ballast treatment requirements. An option was added for vessels owners to complete a biological study, in lieu of the annual monitoring, to evaluate the threat posed to Minnesota waters by ballast water discharges from these vessels. 3. Addition of requirement to comply with all state regulations. This requirement clarifies that obtaining coverage under the 2013 VGP does not release any person from the duty to comply with state laws, statutes and rules. All vessels must comply with the requirements of Minn. Stat and any other applicable state law, statute or rule. This requirement was added in response to several comments urging the MPCA to terminate the state s ballast water permit. The requirement ensures adequate mechanisms are established to enforce state regulations if the permit is terminated. The addition of this requirement should not be

15 interpreted as a decision to terminate the state ballast permit. Rather, it allows for the discussion to occur during the permit reissuance process expected in C. Submittal of 401 Certification to USEPA The MPCA staff believes that the 401 Certification meets the requirements of Minn. R The requirements included in the 401 Certification will achieve greater environmental protection from regulated entities. The SDS Permit, for which compliance is required for all vessels under the 2013 VGP, is in compliance with all applicable State pollution control statutes and rules. The conditions of the 401 Certification will not pose a danger to human health or the environment. No environmental review pursuant to Minn. Stat. ch. 116D is required prior to submittal of the 401 Certification. The MPCA drafted the 401 Certification in coordination with other stakeholders. The draft 401 Certification was placed on public notice in May 2012 with opportunity for public comment as required pursuant to Minn. R Copies of all comments received in response to the public notice are contained in Appendix A to this Board Item; the MPCA staff s Responses to Comments are contained in Appendix B. After the comment period, additional revisions were made to the 401 Certification based on comments received. A copy of the proposed 401 Certification containing the changes made from the draft 401 Certification that was placed on public notice May 2012 is found in Attachment 3 to this Board Item. The MPCA staff believes that the permit revisions, the response to public comments (Appendix B), and the Findings of Fact, Conclusions of Law, and Order (Attachment 1) adequately address all the comments received on the draft Permit. III. CONCLUSIONS: After thorough consideration and discussion of the issues raised during the public notice period, the MPCA staff finds that all the issues have been adequately addressed according to applicable requirements in Minn. R. chs and Regarding the submittal of the 401 Certification to the

16 EPA, adequate and timely public notice of the proposed 401 Certification was given in accordance with Minn. R The requirements of Minn. R for final determination on the submittal of a 401 Certification have been met. Therefore, the MPCA staff believes that the Board should authorize submittal of the 401 Water Quality Certification of the draft 2013 EPA Vessel General Permit to the EPA. IV. RECOMMENDATIONS: The MPCA staff recommends that the Board adopt the following suggested staff resolution. SUGGESTED STAFF RESOLUTION BE IT RESOLVED, that the Minnesota Pollution Control Agency (MPCA) hereby authorizes the submittal to EPA the granting of the 401 Certification of the draft 2013 EPA Vessel General Permit with conditions. BE IT FURTHER RESOLVED, that the MPCA hereby approves and adopts the attached Findings of Fact, Conclusions of Law, and Order, and the August 28, 2012,,MPCA Citizens Board Item in support of its authorization to submit to EPA the granting of the 401 Certification of the draft 2013 EPA Vessel General Permit with conditions. BE IT FURTHER RESOLVED, that the Commissioner is hereby authorized to execute the attached Findings of Fact, Conclusions of Law, and Order, and the attached 401 Water Quality Certification with conditions of the EPA draft 2013 Vessel and small Vessel General Permit on behalf of the MPCA

17 ATTACHMENT 1 STATE OF MINNESOTA MINNESOTA POLLUTION CONTROL AGENCY IN THE MATTER OF THE DECISION ON THE APPROVAL FOR SUBMITTAL OF A 401 WATER QUALITY CERTIFICATION TO THE US ENVIRONMENTAL PROTECTION AGENCY FOR THE DRAFT 2013 VESSEL GENERAL PERMIT AND THE DRAFT 2013 SMALL VESSEL GENERAL PERMIT FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER The above entitled matter came before the Minnesota Pollution Control Agency (MPCA) Citizens Board at a regular meeting held in St. Paul, Minnesota on August 28, Based on the MPCA staff review, comments and information received during the comment period, and other information in the record of the MPCA, the MPCA hereby makes the following Findings of Fact, Conclusions of Law, and Order: FINDINGS OF FACT This matter involves the proposed Clean Water Act Section 401 Water Quality Certification (401 Certification) of the federal draft 2013 Vessel General Permit and small Vessel General Permit (2013 VGP) for the discharge to Minnesota waters of wastewater incidental to the normal operation of vessels. The MPCA must decide under applicable statutes and rules whether to certify, certify with conditions, waive or deny the 401 Certification. JURISDICTION 1. The MPCA is authorized and required to administer and enforce all laws relating to the pollution of any waters of the State. Minn. Stat , subd. 1(a). 2. The MPCA is authorized under Section 401 of the Clean Water Act (33 USC 1251 et seq.), Minn. Stat. chs. 115 and 116, and Minn. R through , to examine the 2013 VGP to determine whether it can certify, in accordance with Minn. R , that the 2013 VGP will achieve compliance with all applicable state and federal pollution control statutes and rules administered by the agency, and that all applicable requirements of Minnesota Statutes, chapter 116D, and the rules adopted under Minnesota Statutes, chapter 116D, have been fulfilled. BACKGROUND 3. Ballast water discharges to Minnesota waters from vessels may contain aquatic invasive species (AIS) that could survive in their new location, upsetting the local aquatic ecosystem. 4. Aquatic invasive species compete with native species for food and habitat, alter aquatic ecosystems, and cause significant economic impact. TDD (for hearing and speech impaired only): (651) Printed on recycled paper containing at least 30% fibers from paper recycled by consumers

18 401 Water Quality Certification Findings of Fact On the EPA draft 2013 Vessel General Permit Conclusions of Law St. Louis County, Minnesota And Order 5. Aquatic invasive species are not found uniformly in the Great Lakes. Of the more than 125 nonnative aquatic species established in the Great Lakes, only about 1/3 are found in Lake Superior. 6. Discharges of ballast water from commercial vessels have been identified as the primary source of recorded introductions of aquatic invasive organisms into the Great Lakes since the St. Lawrence Seaway was opened in More ballast water is discharged into the Port of Duluth/Superior than any other Great Lakes port. On average, ships discharge millions of gallons of ballast water every day to Minnesota waters during the shipping season. 8. The Duluth Seaway Port Authority estimates that approximately 5 percent of the ballast water discharged to Lake Superior is from oceangoing vessels (Salties) and approximately 95 percent comes from Great Lakes only vessels (Lakers). 9. Ballast water from oceangoing vessels can introduce aquatic invasive species from foreign ports into waters where the ballast tanks are discharged. 10. Until ballast water treatment technology is in place on vessels discharging ballast water, the MPCA recognizes that ballast water management techniques, such as ballast water exchange and salt water flushing, are appropriate interim steps for preventing the introduction of AIS from oceangoing vessels. Most ballast experts believe that ballast water (treatment) technology will ultimately provide the best protection for the Great Lakes and all of the nation s waters. 11. Due to the large volume of ballast water that Lakers transport around the Great Lakes annually, the U.S. and Canadian Laker fleets also play a role in spreading and dispersing species already introduced and established in the Great Lakes. Lakers can take on ballast water with AIS in one of the Great Lakes and discharge those AIS into Lake Superior via ballast water. 12. Therefore, the untreated discharge of ballast water from both Salties and Lakers represents a risk to the Minnesota waters. 13. To address the threat of the introduction of AIS into Minnesota State waters of Lake Superior and Minnesota s inland waters through ballast water discharges, the MPCA issued State Disposal System (SDS) General Permit No. MNG in September The SDS permit includes numeric discharge limits for ballast discharges. 14. In December 2008, the U.S. Environmental Protection Agency (EPA) issued, under the National Pollutant Discharge Elimination System (NPDES) Permit Program, the 2008 Vessel General Permit (2008 VGP). 15. The 2008 VGP regulates discharges incidental to the normal operation of vessels operating in a capacity as a means of transportation. The 2008 VGP includes general effluent limits applicable to all discharges, including ballast water. The general effluent limits in the 2008 VGP are applicable to 26 specific discharge streams. The 2008 VGP does not include numeric discharge limits for AIS in ballast discharges. 2

19 401 Water Quality Certification Findings of Fact On the EPA draft 2013 Vessel General Permit Conclusions of Law St. Louis County, Minnesota And Order 16. Through Public Law and Public Law , US Congress exempted most commercial fishing vessels and vessels less than 79 feet from the NPDES permit requirement until December 18, The EPA has developed a Small Vessel General Permit (svgp) for these vessels. 17. In part to address the lack of numeric discharge limits for ballast discharges in the 2008 VGP, EPA began work to reissue the NPDES vessel discharge permit well prior to its expiration date. 18. EPA issued both the 2013 VGP and svgp for public comment from November 30, 2011, until February 21, The MPCA and Minnesota Department of Natural Resources (DNR) submitted joint comments to the EPA regarding the draft permit. The EPA requested that the states submit 401 Water Quality Certifications, as applicable by June 30, This date was recently extended to October 1, Prior to a federal permit being issued for activities that could impact waters of the United States, affected states must first provide a 401 Certification determination to ensure that activity would be in compliance with state water quality standards. In Minnesota, the MPCA administers the 401 Certification Program. Minn. R subp.1 requires a 401 Certification to be available for public notice for a minimum of ten days, include the name and address of the certificate holder and a statement that the agency has examined the section 401 certification application and any other information and certifies that there is reasonable assurance that the terms and conditions required to ensure that the 401 Certification will be consistent with water quality standards. 20. The MPCA finds that the proposed 2013 svgp and proposed reissued VGP, when implemented under the proposed conditional 401 Certification, will reasonably assure compliance with water quality standards, provided that substantial changes are not made to the permits as a result of public comments. 401 CERTIFICATION APPLICABILITY AND CONDITIONS 21. The 401 Certification applies to vessels covered by the vessel general permits, including all discharges incidental to the normal operation of commercial and non commercial vessels greater than or equal to 79 feet in length (2013 VGP), as well as those vessels covered by the NPDES Small Vessel General Permit (2013 svgp). 22. The 401 Certification Conditions include the following: A. Compliance with Minnesota SDS permit for ballast water; B. No additional requirements for a Numeric Water Quality Based Effluent Limitation (WQBEL) Determination for Ballast Water Discharges at this time, though Minnesota remains interested in the development of data via ongoing monitoring, which could be used to inform the process of establishing a water quality standard in the future; 1 The MPCA has questioned whether it is appropriate for states to certify a permit that does not contain final terms and conditions. As a result, the MPCA must reserve the right to amend its 401 Certification to address any terms and conditions that are changed by EPA when the final permits are promulgated. 3

20 401 Water Quality Certification Findings of Fact On the EPA draft 2013 Vessel General Permit Conclusions of Law St. Louis County, Minnesota And Order C. Exchange and flushing for voyages originating beyond the Exclusive Economic Zone (EEZ); D. Emergency Control of Ballast Water discharge; E. Monitoring and use of Best Management Practices (BMP) for Vessels that operate exclusively in the Great Lakes; F. Monitoring Requirements both for vessels installation treatment technology, as well as for vessels that are not required to install treatment technology; G. Control of Biocide usage; H. Compliance with any other applicable state regulations, specifically Minn. Stat The MPCA is not requiring a WQBEL Determination for Ballast Water Discharges at this time due to lack of data sufficient to support such a WQBEL, although Minnesota remains interested in the development of data via ongoing monitoring which could be used to inform the process of establishing a water quality standard in the future. The proposed conditions include the requirement for monitoring that will assist in development of a WQBEL in the future. NONDEGRADATION 23. The MPCA completed the nondegradation review consistent with all applicable Minnesota Rules including Minn. R (Nondegradation for Outstanding Resource Value Waters) and Minn. R (Lake Superior Basin Water Standards Nondegradation.) The Permits prevent the introduction and spread of AIS in Minnesota waters of Lake Superior and do not expand the authority to discharge. Nondegradation review is required for new and expanding discharges as defined in Minn. R New discharges to Lake Superior are those that were not in existence on November 5, 1984, the date on which Lake Superior was designated as an outstanding resource value water. Because ballast water discharge is an ongoing activity that existed before November 5, 1984, that is being limited by the proposed permits, the MPCA finds that ballast water discharges are not properly viewed as new or expanded. To the extent that new types of AIS that may be present in ballast water are viewed as a new discharge, the MPCA concludes there are no prudent and feasible alternatives to ballast water discharge at this time. See response to Comment 8 1 for more discussion regarding this topic. PUBLIC NOTICE/PUBLIC COMMENT 24. In accordance with the requirements of Minn. R and Minn. R , subp. 4, the MPCA prepared a draft 401 Certification of the draft 2013 VGP and svgp and gave the public an opportunity to comment on the draft 401 Certification. The draft 401 Certification was on public notice May 7 to May 28, The MPCA received 16 written comment correspondences during the comment period. Copies of the comments are provided in Appendix A. 26. Several comments were received in the following areas: 1) concerns that State regulation will be inconsistent throughout the Great Lakes region and that federal regulation is the preferred approach; 2) whether Laker vessels should be excluded from the ballast water treatment requirements referenced in the 401 Certification (see SDS Permit); 3) concerns that some ballast water exchange and flush requirements are confusing or not feasible; 4) concerns that the 4

21 401 Water Quality Certification Findings of Fact On the EPA draft 2013 Vessel General Permit Conclusions of Law St. Louis County, Minnesota And Order implementation schedule to install ballast water treatment is either too long or too short; and 5) whether the biological performance standards in the Permit are stringent enough to protect Minnesota waters. MPCA CONSIDERATION OF PUBLIC COMMENTS 27. The MPCA reviewed each of the comments and provided a detailed response to each. The responses of the MPCA staff are set out in the Responses to Comments document (Appendix B). 28. All comments are identified and responses are provided in Appendix B to these findings. Some specific comments and the MPCA response to those comments are summarized below. 29. The MPCA concurs with the reasoning of the MPCA staff in its Responses to Comments document (Appendix B) and adopts that reasoning by reference in these findings. SELECTED PUBLIC COMMENTS AND MPCA RESPONSES 30. Comment regarding implementation schedule for ballast treatment systems Regarding the treatment requirement for vessels constructed prior to January 1, 2012, the commenter reiterates that they do not believe there will be available treatment systems which will be effective on Lakers by the January 1, 2016, implementation date. Further, regarding the treatment requirement for vessels constructed after January 1, 2012, the commenter states that, due to the US Coast Guard type approval system, treatment systems will likely not be available to install on vessels until January 2015 at the earliest. The MPCA responds that though the Great Lakes states coordinated 401 Certification development, each state s 401 Certification must include region or state specific priorities. As the receiver of the vast majority of ballast water discharge from Lakers, and the potential for spread of invasive species from the lower lakes to Minnesota Waters, Minnesota remains interested in Lakers being considered as part of the fleet to which numeric ballast discharge limits are applicable to protect our water resources. The 401 Certification requires vessels to acquire and comply with the current SDS Ballast General Permit. The current SDS Ballast General Permit will expire in September The MPCA plans to begin the reissuance process in 2012 and will review all requirements, including availability of treatment technologies for Lakers, during the reissuance of the permit. Vessel owners that plan to build vessels subject to the January 1, 2012, deadline are encouraged to contact the MPCA as soon as possible to discuss these situations on a case by case basis. 31. Comment regarding availability of treatment technology for lakers The commenter states that there is a lack of available ballast water management systems available to Lakers and no treatment technologies are foreseen at this time. The commenter states that other Great Lakes states have also concluded that no treatment technologies are currently available for Lakers, due to the unique characteristics of the Lakers, including high discharge flow rates, short voyages, operation within wide temperature ranges, the potential for corrosion damage from biocides used as treatment, and fresh water considerations. 5

22 401 Water Quality Certification Findings of Fact On the EPA draft 2013 Vessel General Permit Conclusions of Law St. Louis County, Minnesota And Order The MPCA responds that though the Great Lakes states coordinated 401 Certification development, each state s 401 Certification must include region or state specific priorities. As the receiver of the vast majority of ballast water discharge from Lakers, and the potential for spread of invasive species from the lower lakes to Minnesota Waters, Minnesota remains interested in Lakers being considered as part of the fleet to which numeric ballast discharge limits are applicable to protect our water resources. 32. Comment regarding feasibility of ballast water exchange requirements for vessels operating within the EEZ. The commenter states that Condition 3 of the 401 Certification is confusing and may cause challenges for those vessels that originate from certain coastal ports where vessels may have difficulty locating a suitable area to conduct exchange in a timely manner without significant deviation in routing. The commenter requests a reduction in the distance to 25 nautical miles from shore required for these vessels and, preferably, for MPCA to align the 401 Certification with the US Coast Guard Final Rule. The MPCA responds that the MPCA has received several comments regarding the requirement for vessels operating within the Exclusive Economic Zone (EEZ) to conduct ballast water exchange after treatment systems have been installed. After further review, the MPCA has determined that the requirement, as written, may not apply to any vessels. In addition, while discussed among several states, no other Great Lakes state has included such a requirement in a draft 401 certification. The MPCA has therefore removed Requirement number 3 entirely. Requirement number 5 (Emergency Control of Ballast Water Discharge) provides an adequate mechanism to address the environmental concerns associated with this requirement until further analysis and collaboration can occur. 33. Comment regarding the MPCA ability to assure compliance with this 401 Certification and the potential requirement of a nondegradation review the MPCA should certify 2013 VGP only if the MPCA can certify that the discharges it authorizes will comply with Minnesota water quality standards and that MPCA s certification conditions assure that dischargers will comply with Minnesota water quality standards. The MPCA s draft certification that its conditions provide reasonable assurance of compliance with Minnesota water quality standards is insufficient to satisfy the requirements of 401 of the Clean Water Act (CWA). The MPCA responds that in this comment, the commenter asserts that both state and federal law require a state certification that assures compliance with state water quality standards. The MPCA does not disagree. The commenter also asserts, however, that MPCA s certification rule, Minn. R , subp. 1(A) is ineffective to meet the requirement that the state certification assure compliance with state water quality standards, because the rule makes reference to the certification being based on a reasonable assurance that the activity will not violate applicable water quality standards, whereas 33 U.S.C requires that the state certify that the discharge will comply with applicable water quality standards. The MPCA finds that there is no meaningful distinction between the standard articulated in the rule and the standard articulated in the statute. Any action taken by the MPCA must be supported by substantial evidence given the record in the matter. See Minn. Stat (an agency decision that is unsupported by substantial evidence in view of the entire record as submitted may be overturned). As interpreted by the MPCA, if there is substantial evidence supporting an MPCA decision, it must be upheld. Similarly, if there is a reasonable 6

23 401 Water Quality Certification Findings of Fact On the EPA draft 2013 Vessel General Permit Conclusions of Law St. Louis County, Minnesota And Order assurance that the action will result in the given standard being met, the MPCA s action must be upheld. The MPCA also notes that although Congress did modify the first paragraph of 33 U.S.C to remove the reasonable assurance language, the reasonable assurance language remains in the statute in other places. Paragraph 3, for example, notes that a state, after having received notice of changes to a previously certified facility, can notify the federal agency that there is no longer reasonable assurance that there will be compliance.... See 33 U.S.C. 1341(a)(3). Similarly, in Paragraph 4, the statute notes that a state can review the manner in which a facility or activity will be operated (if not governed by a federal operating license or permit) to ensure that conditions are being met. If the certifying state notifies the Administrator that the operation will violate applicable effluent limitations, and the license or permit is suspended, it shall remain suspended until notification is received from the certifying State... that there is reasonable assurance that such facility or activity will not violate the applicable provisions.... See 33 U.S.C. 1341(a)(4). The fact that Congress left the reasonable assurance language intact suggests strongly that Congress did not intend for a different standard to be applied when it modified the statute in a manner that removed the phrase in the initial sentences. As a result, the MPCA finds that its rule (and 40 CFR 121.2) is adequate and that its finding is not legally deficient. In this comment, the commenter also raises the issue of whether the MPCA should have performed a nondegradation review with regard to this certification. The MPCA did a nondegradation review when it issued its first ballast water SDS permit in September At that time, the MPCA concluded that the vast majority of ballast water discharges in Minnesota waters of Lake Superior are neither new nor expanded discharges because the discharges pre date the designation of Lake Superior as an ORVW. The MPCA further concluded that even if ballast waters were considered new or expanded, there is no feasible and prudent alternative to such discharge because ships cannot operate without discharging ballast water and stopping shipping on the Great Lakes would be neither feasible nor prudent. Moreover, the MPCA concluded that by including the most stringent technologically achievable treatment limits, the controls in the permit satisfy the nondegradation rule requirements. The MPCA s decision to issue the 2008 state ballast water permit was challenged by the Minnesota Center for Environmental Advocacy (MCEA). The Minnesota Court of Appeals upheld the MPCA s decision to issue the permit, including its handling of the nondegradation analysis. See In The Matter Of A Request For Issuance Of The SDS General Permit MNG For Ballast Water Discharges From Vessels Transiting Minnesota State Water Of Lake Superior, 769 N.W.2d 312 (Minn. Ct. Ap. 2009) ( Ballast Permit Case ). The commenter now argues that the MPCA should have conducted a nondegradation review in connection with this certification decision. In making this assertion, the commenter essentially renews arguments that were addressed and rejected by the Minnesota Court of Appeals in the Ballast Permit Case. The MPCA finds that nothing significant has changed between the issuance of the 2008 ballast water permit as challenged in the Ballast Permit Case, and today. As a result, the MPCA concludes that a nondegradation analysis, if conducted, would reach the same conclusion as before. For this reason, it was reasonable for the MPCA to rely on its prior conclusions in deciding to issue this conditional certification. 34. Comment regarding implementation of a numeric water quality based effluent limitation MPCA should revise Condition number 2 by adding a WQBEL for AIS that will prevent the introduction or spread of new aquatic nonindigenous species and the establishment or spread of new AIS. The MPCA should revise Conditions number 2 and 6 by adding a requirement that all vessels meet the WQBEL, including oceangoing vessels, vessels operating exclusively within the Great Lakes (lakers), vessels 7

24 401 Water Quality Certification Findings of Fact On the EPA draft 2013 Vessel General Permit Conclusions of Law St. Louis County, Minnesota And Order travelling short distances, vessels that can carry no more than 8 cubic meters of ballast water, and unmanned barges. The MPCA should revise Conditions number 2 and 6 by adding a requirement that all vessels meet the WQBEL on or before the following deadlines: New small vessels (built on or after November 30, 2012): January 1, 2014 New large vessels (built on or after November 30, 2012): January 1, 2015 Existing vessels (built before November 30, 2012): January 1, 2016 The MPCA should revise Condition number 7 by imposing monitoring and reporting requirements that will make compliance with the WQBEL practically enforceable. The MPCA responds that after careful review of the available data and studies completed to further define the threshold at which point the introduction of nonnative species impacts the quality of Waters of the State, MPCA and the DNR staff are unable to conclusively determine a numeric standard which would definitively protect water quality and an unaltered species composition of the ecosystem. This determination is consistent with the National Academies National Research Council 2011 report Assessing the Relationship Between Propagule Pressure and Invasion Risk in Ballast Water. Therefore, a numeric WQBEL in not included in the final 401 certification. 401 CERTIFICATION REVISIONS BASED ON PUBLIC COMMENTS 35. Based on comments received during the public notice period, the MPCA has proposed numerous edits and revisions to clarify the applicability and intent of each requirement. In addition, three amendments are proposed as follows: A. Elimination of ballast water exchange requirement for vessels operating within the EEZ. The proposed elimination of this requirement is due to significant applicability and logistical challenges. Comments and concerns include confusion generated by the use of the term EEZ, feasibility concerns (particularly with the Canadian domestic fleet), potential negative environmental impact, and inconsistencies with other states regulations. Further coordination and collaboration with other regulators is needed before a feasible proposal can be recommended. B. Modification of monitoring requirements for vessels not required to achieve compliance with numeric ballast discharge limits. The 401 Certification requires annual monitoring of organisms discharged by vessels operating exclusively in the Great Lakes and exempted from ballast treatment requirements. An option was added for vessels owners to complete a biological study, in lieu of the annual monitoring, to evaluate the threat posed to Minnesota waters by ballast water discharges from these vessels. C. Addition of requirement to comply with all state regulations. This requirement clarifies that obtaining coverage under the 2013 VGP does not release any person from the duty to comply with state laws, statutes and rules. All vessels must comply with the requirements of Minn. Stat and any other applicable state law, statute or rule. This requirement was added in response to several comments urging the MPCA to terminate the state s ballast water permit. The requirement ensures adequate mechanisms are established to enforce state regulations if the permit is terminated. The addition of this requirement should not be 8

25 401 Water Quality Certification Findings of Fact On the EPA draft 2013 Vessel General Permit Conclusions of Law St. Louis County, Minnesota And Order interpreted as a decision to terminate the state ballast permit. Rather, it allows for the discussion to occur during the permit reissuance process expected in FINAL DETERMINATION ON WHETHER TO ISSUE 401 CERTIFICATION 36. The MPCA's decision to issue the 401 Certification is governed by Minn. R subp. 1, which states: Subpart 1. The agency shall make final determinations with respect to section 401 certifications by taking one of the following actions: A. Issue, reissue, revoke and reissue, or modify a section 401 certification in accordance with part , subpart 1 and upon making a finding that the discharge which is the subject of the section 401 certification will comply with sections 301, 302, 303, 306, and 307 of the Clean Water Act, United States Code, title 33, sections 1311, 1312, 1313, 1316, and B. Deny or revoke a section 401 certification upon making the findings set forth in part , subpart 2 or the findings set forth in subpart 2. C. Waive the agency's authority to issue a section 401 certification in accordance with part Minn. R provides that: Subpart 1. Agency action. Except as provided in subpart 2, the agency shall issue, reissue, revoke and reissue, or modify a permit if the agency determines that the proposed permittee or permittees will, with respect to the facility or activity to be permitted, comply or will undertake a schedule of compliance to achieve compliance with all applicable state and federal pollution control statutes and rules administered by the agency, and conditions of the permit and that all applicable requirements of Minnesota Statutes, chapter 116D, and the rules adopted under Minnesota Statutes, chapter 116D, have been fulfilled. 38. The MPCA finds that the proposed section 401 Certification meets the standard for approval established by Minn. R In particular, the MPCA finds that the activity to be permitted will be conducted in compliance with all applicable state and federal pollution control standards and the terms of the federal discharge permits as proposed and as modified by the conditions in the 401 Certification. No environmental review requirements in Chapter 116D or rules promulgated to implement Chapter 116D attach to this action. 39. The MPCA finds that the discharge which is the subject of the section 401 certification will comply with sections 301, 302, 303, 306, and 307 of the Clean Water Act, United States Code, title 33, sections 1311, 1312, 1313, 1316, and The MPCA finds that the terms of the proposed 401 Certification meet the requirements of for the terms of a 401 Certification established by Minn. R

26 401 Water Quality Certification Findings of Fact On the EPA draft 2013 Vessel General Permit Conclusions of Law St. Louis County, Minnesota And Order 41. These Findings, Conclusions of Law and Order, the MPCA Board Item and its various attachments constitute the report required by Minn. R and adequately fulfill the requirements of that rule. Procedural History 42. Pursuant to Section 401 of the Clean Water Act and under authority of Minn. Stat. chs. 115 and 116, and Minn. R , a 401 Water Quality Certification was prepared by the MPCA staff on the proposed permit. 43. The MPCA notified the public of the public comment period. The draft 401 Water Quality Certification was published in the State Register, on May 7, In addition, the 401 Water Quality Certification was made available for review on the MPCA Web site at notices.html on May 7, The public comment period for the draft 401 Certification began on May 7, 2012, and ended on May 28, During the 21 day comment period, the MPCA received 16 comment letters from government agencies and received 0 comment letters from citizens. 45. The MPCA prepared responses to all comments received during the 21 day public comment period. Comment letters received have been hereby incorporated by reference as Appendix A to these findings. The MPCA responses to comments received are hereby incorporated by reference as Appendix B to these findings. 46. The MPCA finds that ongoing public regulatory authority will address any significant potential environmental effects that were identified as reasonably expected to occur. CONCLUSIONS OF LAW 47. The MPCA has jurisdiction to issue this 401 Certification. 48. Adequate and timely public notice of the proposed 401 Certification was given in accordance with applicable rules and public comments on the draft 401 Certification have been addressed. 49. Areas where the potential for significant environmental effects may have existed have been identified and appropriate mitigation measures have been incorporated into the 401 Certification. The 2013 VGP and svgp, with conditions established in the 401 Certification, are expected to result in compliance with all existing MPCA standards. 50. The MPCA reserves the right to modify requirements of the 2013 VGP, with conditions established in the 401 Certification if substantial changes are made to the 2012 VGP or svgp upon issuance. 51. Any findings that might properly be termed conclusions and any conclusions that might properly be termed findings are hereby adopted as such. 10

27 401 Water Quality Certification Findings of Fact On the EPA draft 2013 Vessel General Permit Conclusions of Law St. Louis County, Minnesota And Order ORDER Based on the foregoing Findings of Fact and Conclusions of Law, it is ordered: The Minnesota Pollution Control Agency approves the 401 Water Quality Certification for the EPA draft 2013 Vessel General Permit and 2013 Small Vessel General Permit. IT IS SO ORDERED Commissioner John Linc Stine Chair, Citizens Board Minnesota Pollution Control Agency Date 11

28 APPENDIX A Minnesota Pollution Control Agency Draft 2013 EPA Vessel General Permit Minnesota 401 Water Quality Certification LIST OF COMMENT LETTERS RECEIVED 1. Andrew Slade, Minnesota Environmental Partnership. Letter received May 23, James H.I. Weakley, Lake Carrier s Association. Letter received May 24, Daryn McBeth, Minnesota Agri Growth Council. Letter received May 24, Adolf Ojard, Duluth Seaway Port Authority. Letter received May 25, Mike Robertson and Keith Hanson, Minnesota Chamber of Commerce. Letter received May 25, William S. Murphy, Canal Barge Company, Inc. Letter received May 25, Marc F. Stoken, United States Steel Corporation; Jonathan Holmes, Arcelor Mittal Minorca mine Inc.; Terrence R. Mee, Cliffs Natural Resources Inc. Letter received May 25, Neil Kagan, et al., National Wildlife Federation. Letter received May 26, Craig Pagel, Iron Mining Association of Minnesota. Letter received, May 28, Edward J. Kuss, International Association of Machinists and Aerospace Workers. Letter received May 28, Bruce Bowie, Canadian Shipowners Association. Letter received May 28, Steven A. Fisher, American Great Lakes Ports Association. Letter received May 28, Gary Croot, International Maritime Environmental and Safety Associates, Inc. Letter received May 28, Caroline Gravel, Shipping Federation of Canada. Letter received May 28, Jean Aubry Morin, The St. Lawrence Seaway Management Corporation. Letter received May 28, Martin Loken/Denis Lebel, Consulate General of Canada/Minister of Transport. Letter received June 8, 2012.

29 From: To: Subject: Date: Andrew Slade Frantz, Kate (MPCA); Potential correction for VGP2 certification Wednesday, May 23, :06:29 PM Ms. Frantz, I am writing in regards to the draft 401 WQ certification of the Environmental Protection Agency's (EPA) proposed 2013 National Pollutant Discharge Elimination System (NPDES) general permit. This is only a minor point, and is probably the correction of a compositional mistake. Nonetheless, please enter this as an official comment on the Draft. In Condition 6, near the top of page 11, regarding the best location of ballast water exchanges. Point 1 suggests, Conduct a ballast water exchange in the deepest, warmest water prior to entering Lake Superior. I believe the language should read deepest, coldest water. For one thing, deep water in the Great Lakes will almost always be colder. It is, I believe, the cold water that would be most inhabitable to the VHS and therefore would destroy any VHS in the ballast water. Thank you for your receipt of this comment. Andrew Slade - Northeast Program Coordinator Minnesota Environmental Partnership (218) Lake Ave, S. #223, Duluth, MN MEP was rated the #1 high impact environmental nonprofit in Minnesota by local experts. #ProtectMN

30 Via Ms. Kate Frantz SP-5 Industrial Division Minnesota Pollution Control Agency 520 Lafayette Road North St. Paul, MN Dear Ms. Frantz: Lake Carriers Association The Greatest Ships on the Great Lakes JAMES H. I. WEAKLEY, PRESIDENT May 24, 2012 SUBJECT: Draft Section 401 Conditional Water Quality Certification of the U.S. Environmental Protection Agency s Proposed 2013 National Pollutant Discharge Elimination System General Permit for Commercial and Large Recreational Vessels Lake Carriers Association ( LCA ) represents 17 American companies that operate 57 U.S.-flag vessels ( lakers ) on the Great Lakes and carry the raw materials that drive the nation s economy. Those include iron ore and fluxstone for the steel industry, aggregate and cement for the construction industry, coal for power generation, as well as salt, sand and grain. Collectively, our members can transport more than 115 million tons of dry-bulk cargo per year. They employ more than 1,600 men and women, all of whom are U.S. citizens or legally admitted aliens, and provide annual wages and benefits of approximately $125 million. In turn, the cargos our members carry generate and sustain more than 103,000 jobs in the United States and have an economic impact of more than $20 billion. Thank you for the opportunity to review and comment on Minnesota s Draft Section 401 Conditional Water Quality Certification of the EPA s next Vessel General Permit. We believe that working collaboratively we and Minnesota Pollution Control Agency ( MPCA ) can produce a VGP that protects Minnesota s precious Lake Superior waters while allowing Great Lakes freighters to continue to move Minnesota iron ore to steel mills in the United States and Canada. Importance of Great Lakes Shipping to Minnesota Great Lakes shipping plays an important role in Minnesota s economic well-being. A recent study, The Economic Impacts of the Great Lakes-St. Lawrence Seaway System, determined that waterborne commerce generates almost 6,300 jobs in Minnesota. The vast majority of those jobs 4,309 are tied to cargos carried by LCA members. Primary among these cargos is iron ore in the form of taconite pellets. Minnesota s Mesabi Range is the American steel industry s largest source for domestic iron ore. The pelletized taconite is shipped through four Lake Superior ports, three of which are in Minnesota: Duluth, Superior, Two Harbors and Silver Bay. The table on the following page records shipments from these ports in recent years: Center Ridge Rd., Ste. 720 Rocky River, OH Fax: The Association Represe nting Operators of U.S. -Flag Vessels on the Great Lakes AMERICAN STEAMSHIP C OMPANY ANDRIE, INC. ARMSTRONG STEAMSHIP COMPANY BELL STEAMSHIP COMP A NY CENTRAL MARINE LOGIS TICS, INC. GRAND RIVER NAVIGATI ON COMPANY, INC. GREAT LAKES FLEET/KEY LAKES, INC. INLAND LAKES MANAGEM ENT, INC. THE INTERLAKE STEAMS HIP COMPANY LAKES S HIPPING COMPANY LAKE M ICHIGAN CARFER RY SERVICE PERE MARQUETTE SHIPP ING P ORT CITY MARINE SER VICES P ORT CITY STEAMSHIP SERVICES SOO MARINE SUPPLY, INC. UPPER LAKES TOWING C OMPANY, INC. V ANENKEVORT TUG & BARGE INC.

31 Lake Carriers Association May 24, 2012 Minnesota s Draft Sec. 401 Certification of EPA s 2013 NPDES Vessel General Permit Page 2 Shipments of Minnesota Iron Ore on the Great Lakes (net tons) Port Average Duluth, MN 6,085,176 7,711,147 6,717,316 Superior, WI 7,745,539 8,949,320 8,970,633 Two Harbors, MN 14,119,821 16,271,740 12,536,347 Silver Bay, MN 6,788,916 6,017,263 5,316,839 Total 34,739,452 38,949,470 33,541,135 Source: Lake Carriers Association survey of Great Lakes iron ore ports. In each instance, the totals above represent more than 70 percent of U.S. iron ore moving on the Great Lakes. Cargos delivered to Minnesota are also important. In 2007, the last year before the recession, LCA members delivered nearly 3 million tons of limestone, 1.5 million tons of coal, 190,000 tons of cement, and 117,000 tons of salt to Minnesota. Summary of Key Points 1. As proposed by MPCA, it will be impossible for an existing laker to legally operate in Minnesota waters after January 1, Minnesota is proposing the most expansive ballast water discharge requirements on the Great Lakes. Michigan has proposed a more stringent technology based effluent limit that would only apply to oceangoing vessels after 2026; however, oceangoing vessels have already stopped taking on export cargo in Michigan, which eliminates the need for them to discharge ballast water. This is a direct result of previous ballast water regulations adopted by Michigan. With the publication of the U.S. Coast Guard s Final Rule on March 23, 2012, and the draft EPA VGP2, the Federal government has established ballast water regulations that are 1) environmentally protective of the fragile Great Lakes ecosystem; 2) feasible and practicable, thus ensuring widespread compliance; and 3) economically achievable for all segments of the maritime industry. The state of Minnesota and MPCA have long stated their preference for Federal, environmentally protective standards over a patchwork of regional or state regulations. That Federal standard now exists and is enforced by both the Coast Guard and EPA. Therefore, Minnesota should either harmonize its 401 Certification and SDS Permit to reflect the national standards, or withdraw them. 3. There is presently no ballast water management system (BWMS) capable of being installed on our vessels (commonly referred to as lakers) and we do not foresee a BWMS that can accommodate lakers volumes, flowrates, temperature range and other considerations during the term of the next VGP. This position is supported by numerous independent studies initiated by the U.S. Coast Guard and EPA. Both agencies acknowledged this fact and therefore required lakers to continue to employ Best Management Practices to limit the potential that their ballast might spread an exotic introduced by an oceangoing vessel. Additionally, the states of Ohio, Wisconsin, New York, Indiana, Pennsylvania and Michigan (Illinois has not yet published draft VGP2 regulations or made its intentions known) have also concluded that there are no systems capable of treating the high flow rates common to lakers given the physical constraints of our vessel layouts and operating profiles (short voyages, fresh water, wide temperature range ). 4. We strongly concur with MPCA s determination that a Water Quality Based Effluent Limitation (WQBEL) cannot be established at this time. This determination is supported by numerous studies, including the National Research Council of the National Academies of Science report on ballast water which was funded jointly by the EPA and Coast Guard. We support MPCA s

32 Lake Carriers Association May 24, 2012 Minnesota s Draft Sec. 401 Certification of EPA s 2013 NPDES Vessel General Permit Page 3 conclusion that additional research needs to be completed and significantly more data gathered before any scientifically supportable conclusions can be drawn. We urge MPCA to evaluate existing data gathered by ongoing studies by the EPA as outlined in the VGP2 Fact Sheet. Additionally, we recommend MPCA s proposed monitoring requirements be amended to encourage vessel operators and associations to continue conducting more focused scientific studies in lieu of the proposed annual requirement for each ship. Such a targeted data collection would likely yield better, more actionable data. Minnesota Can Achieve Its Goal by Harmonizing Its 401 Certification and SDS Permit With the Coast Guard Discharge Standard and Schedule and the EPA VGP2. At various public meetings, and in formal comments to administrative dockets, Minnesota has stated its preference for the adoption of a strong Federal standard which is environmentally protective for Minnesota s state waters. Lacking such Federal guidance, MPCA initiated the General State Disposal System for ballast water discharges in Since that time, the Coast Guard has published its Final Rule establishing a protective and achievable ballast water discharge standard, an implementation schedule which is reasonable, yet aggressive, and a process for Type Approving Ballast Water Management Systems to ensure they will operate effectively in all environments, including the Great Lakes. The EPA is also proposing Federal standards for ballast water discharge in its VGP2. We applaud MPCA s decision to adopt most of the provisions of the U.S. Federal regulations and International Maritime Organization s Convention as it pertains to an achievable, and protective standard, as well as an implementation schedule which is feasible and practicable for oceangoing vessels. However, minor differences remain which can cause confusion to the maritime industry and which may result in unintended non-compliance by shipowners. One such example is the minor difference in organism size classes between the MPCA s draft certification and both the IMO and Coast Guard federal standards. Another such example is the lack of a definitions section in the permit. There are several terms such as construction date, operate exclusively on the Great Lakes, and within the Exclusive Economic Zone or Canadian equivalent which are open to significant interpretation, which could have major impacts on the implementation of the permit. Therefore, we strongly urge MPCA to simply incorporate by reference the recently published Coast Guard Final Rule regulations including the definitions, standards, applicability and implementation schedule into its 401 Certification. This would ensure that Minnesota s permit requirements reflect the MPCA s and DNR s intention, as stated by Jeff Stollenwerk during the Coast Guard s public meeting in Chicago on October 2, 2009 and in the comments to the Coast Guard docket, to support a Federal regulation that is protective of Minnesota waters. While we understand that the SDS Permit will not expire until late 2013, we urge Minnesota to consider discontinuing the issuance of SDS Permits for ballast water since they are now unnecessary due to existing Federal regulations promulgated by the Coast Guard and the Vessel General Permit. If immediate discontinuation is not an option due to legal reasons, it should be discontinued in Another option would be for the next iteration of the SDS permit to adopt existing regulatory requirements, much as Ohio s 401 Certification has directly adopted either Coast Guard or IMO discharge standards. No Ballast Water Management Systems Presently Available for Installation Onboard Lakers At the Federal level, both agencies which have jurisdiction over ballast water discharges the U.S.

33 Lake Carriers Association May 24, 2012 Minnesota s Draft Sec. 401 Certification of EPA s 2013 NPDES Vessel General Permit Page 4 EPA and the Coast Guard have determined that there are presently no ballast water management systems available which can be installed and operate satisfactorily on lakers. The states of Wisconsin, Ohio, New York, Indiana, Pennsylvania and Michigan have all reached the same conclusion. In fact, except for Minnesota, none of the Great Lakes states has included in their VGP2 draft 401 Certifications, state permits or implementing regulations any requirement for the installation of ballast water management systems onboard lakers. In addition to the obvious difference in risk associated with vessels which are confined to the Great Lakes versus vessels which can bring non-indigenous species into the Great Lakes, there are several factors which make lakers significantly different from oceangoing vessels. First, even our smallest lakers typically have flow rates which are several times higher than their oceangoing counterparts. In the case of our largest, most efficient and environmentally friendly thousand footers, they have flow rates approaching 80,000 gallons per minute. To put this in perspective, Western Lake Superior Sanitary District ( WLSSD ) includes the cities and towns of Duluth, Hermantown, Proctor, Cloquet and three smaller municipalities. On an average day, the WLSSD processes approximately 2.0 million gallons of water per hour at their facility. This is only 60 percent more than the flow rate of a thousand footer. Yet, the WLSSD facility encompasses approximately 15 acres, contains 12 treatment tanks and miles of piping. Imagine the difficulty or impossibility of attempting to squeeze such a system into the confines of a laker. There are simply no BWMS presently in production or being designed which have the capability to treat these extremely high flow rates on existing lakers. Vessel ballast rates must match the rate of cargo operations or structural failure is certain. Equally important, we do not anticipate that systems that can accommodate lakers requirements will exist during the term of VGP2. Second, our ships longest voyages are no more than five or six days and most are three days or less. Some voyages are only several hours. Compare these transit times to an oceangoing ship which may have a voyage of several weeks or even months. Many treatment systems which use biocides to kill organisms require hold times of several days to first kill the organisms, then several more days to degrade sufficiently so as not to be harmful to the environment upon discharge. The extremely short duration of our voyages, coupled with the extreme cold water experienced throughout much of the navigation system would render such treatment systems ineffective and potentially damaging to the environment. Third, all of our vessels have uncoated ballast tanks. Due to the fresh water operating environment, many of our ships have been in safe operation for 75 years or more with very little internal corrosion. Introducing a biocide, particularly one of the many oxidants such as chlorine or ozone, would quickly cause the deterioration of these tanks. The existing condition of the tanks, welding techniques used and structural limitations make coating the tanks ineffective. Many of the systems which might receive Coast Guard type approval are not practicable for use on Great Lakes vessels. For example, many electrolytic chlorination systems are being developed which might be able to treat at flow rates which approach those of our smallest vessels. However, those systems require salt water, hence they are suitable for oceangoing vessels. The use of a brine tank would be highly corrosive to the uncoated ballast tanks. Those electrolytic chlorination systems have very high power requirements which would exceed the power generation and distribution capability of our ships, particularly given the fact that they would need to be operated simultaneously with the selfunloading equipment. Lake Carriers Association agrees with the conclusions drawn by the Science Advisory Board, the U.S. Coast Guard, the EPA and several Great Lakes states that there are no ballast water management systems presently or foreseeable during the term of the VGP2 available that can be

34 Lake Carriers Association May 24, 2012 Minnesota s Draft Sec. 401 Certification of EPA s 2013 NPDES Vessel General Permit Page 5 fitted on board our existing fleet of lakers. We urge MPCA to reconsider its position regarding applicability and adopt the position taken by these other regulatory agencies which also have responsibility for protecting the waters of the Great Lakes. The draft 401 requirements do not provide a viable option for lakers to legally operate in Minnesota after Water Quality Based Effluent Limits (WQBEL) We strongly support MPCA s conclusion that a Water-Quality Based Effluent Limit cannot be determined at this time. This conclusion echoes the determination made by the National Research Council of the National Academies of Science which stated the existing data are not sufficient to characterize a biologically meaningful relationship, much less estimate the associated uncertainty, to be able to identify with confidence the invasion probabilities associated with particular discharge standards. We agree with MPCA that additional data is required before a water quality based standard is developed in the future. We believe that a robust scientific effort must be undertaken before such a WQBEL standard can be developed. It is our understanding that based on the conclusions drawn by the NAS, that the EPA and the Coast Guard have initiated such a study. Other research organizations and institutions are undertaking similar studies, including Canada s Department of Fisheries and Oceans and the Great Lakes Ballast Water Collaborative, of which LCA and several of its members are active. We don t believe that the annual monitoring program proposed by MPCA will yield the kind of data necessary to make a fully informed determination regarding the establishment of a WQBEL. We propose, as an alternative, that shipowners or associations such as LCA, Shipping Federation of Canada and Canadian Shipping Association, be given the option of continuing to work with the scientific community to develop targeted, scientific studies to collect information useful to not only MPCA, but other regulatory and academic bodies. Any such studies would be subject to the approval of the MPCA and could include collaborative efforts among government, academia, the maritime industry and environmental non-government organizations. Coverage of Lakers Confined to Upstream of the Welland Canal The recommended BMPs for inclusion in the ballast management plan and implemented prior to discharge of ballast in Minnesota were developed to be used during an active VHS incident as determined by the Coast Guard and the Great Lakes Fishery Commission s Council of Lake Committees. Since the development of that protocol in 2006, portions of all five Great Lakes have been determined to contain the VHS virus. The Great Lakes fishery appears to have adapted to the presence of VHS virus and there has been no recent fish kill connected to the virus. It would be unwise and unsafe for a vessel operator to use the recommended BMPs on a routine basis; however, it is not unreasonable for them to be incorporated into a vessel s ballast management plan for use, should the Coast Guard and Council of Lake Committees declare an active VHS incident is occurring in an area where vessels are unable to avoid the uptake of ballast. When Treatment Systems Are Available For Lakers As we have stated repeatedly, there are no BWMS that can accommodate lakers operational requirements. Nor do we expect any will be available during the term of VGP2. Both the Coast Guard and EPA have positively stated that when ballast water treatment systems become available for use on lakers, the Federal agencies will draft regulations to require their use.

35 Lake Carriers Association May 24, 2012 Minnesota s Draft Sec. 401 Certification of EPA s 2013 NPDES Vessel General Permit Page 6 Once an ANS has taken root, it can and will migrate independent of commercial navigation. Take for example the ruffe. Since 1993, it has been migrating along the southern shore of Lake Superior at a rate of about 25 miles per year. And once the ruffe reaches the St. Marys River, the rest of the Great Lakes lie before them. Another critical factor to consider is that lakers ballast is but one of many means of introducing and spreading ANS. The U.S. Geological Survey has identified 64 and ballast is but one. See Attachment A. Recommended Changes and Edits to Specific VGP Certification Conditions 1.a. Table A Biological Performance Standards for Ballast Water Treatment Technology. The organism size classes differ slightly from the IMO Ballast Water Management Convention, Coast Guard Final Rule and EPA Draft VGP2. This is most likely due to an administrative error in the Coast Guard s Notice of Proposed Rulemaking which was subsequently changed in the Final Rule. To align with the aforementioned standards, the organism class sizes should be: Organisms 50 µm in minimum dimension; Organisms <50µm and 10 µm. Although this difference may seem trivial, from a legal standpoint and a type approval standpoint, consistency with Federal and international standards is critical to ensure consistent enforcement and compliance testing. Additionally, it is likely that the IMO and U.S. Coast Guard will adopt an instantaneous maximum or time-weighted average as the limit type for discharges. This is due to a variety of factors, most notably that it is exceedingly difficult to conduct a ballast water discharge sample during the entire course of the ballast water discharge. Therefore, we recommend MPCA adopt the limit type and sample type which are finally adopted by the U.S. Coast Guard to ensure consistency in enforcement. 1.b. Vessels Constructed prior to January 1, For the reasons detailed previously, we do not believe there are or will be ballast water management systems (BWMS) which will be effective on lakers by the January 1, 2016 implementation date. 1.c. Vessels Constructed after January 1, According to a report completed by International Maritime Environmental and Safety Associates 1, the first U.S. Coast Guard type approved BWMS will not be available until 2 ½ to 3 ½ years from the date on which the Coast Guard finalizes its policy and programs for type approval meaning such systems will not be available until January 2015 at the earliest. Thus, requiring vessels constructed after January 1, 2012 to have BWMS on board prior to commencement of vessel operations in MN waters is an impossibility. 6. Coverage of lakers confined to upstream of the Welland Canal. It is unclear where the delineation line is regarding the term upstream of the Welland Canal. We recommend the downstream end of the Welland Canal (i.e., the Lake Ontario end) be established as the delineation line. The natural flow of water in the Great Lakes system is from the west to the east, so this flush effect allows for moving the delineation without fear of facilitating introduction or spread of ANS. Also, due to its unique design, one of our member s vessels can only drydock at the facility at Port Weller, which is just upstream of the final (northernmost downstream) lock in the Welland Canal. Additionally, the term confined can be open to interpretation. While many of our vessels are capable of transiting through the Welland Canal to Lake Ontario, and are certificated by the U.S. Coast Guard to do so, they normally do not. Therefore, we recommend the term confined be changed to lakers operating exclusively upstream of the northernmost lock in the Welland Canal to avoid confusion. We note, 1 Report to St. Lawrence Seaway Development Corporation Regarding Ballast Water Type Approval Process and Obstacles Associated with Installation of Non-Coast Guard Type Approved Ballast Water Management Systems; Jan 4, 2012; International Maritime Environmental and Safety Associates

36 Lake Carriers Association May 24, 2012 Minnesota s Draft Sec. 401 Certification of EPA s 2013 NPDES Vessel General Permit Page 7 however, that some vessel operators and trade associations have made compelling arguments that Anticosti Island should be the delineation line. General Comments. As mentioned above, the lack of a definitions section can lead to significant confusion and misinterpretation which could, in turn, lead to unintentional non-compliance by the shipping industry. As with the general body of the permit, we urge MPCA to directly adopt the definitions from 33 Code of Federal Regulations Part 151, Subparts C and D which contain the Coast Guard s new and existing ballast water regulations. Conclusion Lake Carriers Association has taken several steps to address the problem of water ballast transport of ANS. In fact, our first effort dates back to 1993 and dealt with trying to contain the ruffe to western Lake Superior. But despite everyone s efforts, the problem persists, worldwide. We hope the ballast water treatment systems that will be installed on oceangoing vessels will permanently end new introductions of ANS to the Great Lakes. We will continue to do our best to minimize the potential that our members ballast might spread an ANS. We cannot, however, comply with MPCA s requirement to meet the IMO Standard by January 1, 2016 now or during the term of VGP2. We will take the steps we can our current Best Management Practices, and perhaps implement other measures, but we cannot meet the requirements MPCA has proposed. We hope come January 1, 2016 we will still be able to be a vital partner with Minnesota s iron mining industry and other enterprises. That is, unfortunately, uncertain at this time. Very Respectfully, James H. I. Weakley President Cc: LCA Board of Directors Bruce Bowie, Canadian Shipowners Association G:\WEAKLEY\0-LETTER\2012\ MN Sec 401 Cert Final.docx

37 Lake Carriers Association May 24, 2012 Minnesota s Draft Sec. 401 Certification of EPA s 2013 NPDES Vessel General Permit Page 8 Appendix A Vectors for Introduction and Spread of Non-Indigenous Species Identified by U.S. Geological Survey Accidental Hitchhiker - Plants Released Packing Material Canal Hitchhiker - Platforms Released - Pet Dispersed Hitchhiker - Scuba Gear Shipping Dispersed - Flood Hitchhiker - Oysters Shipping - Ballast Water Dispersed - Ocean Current Hitchhiker - Stocked Fish Shipping - Hull Fouling Dispersed - Waterfowl Hitchhiker With Tunicates Shipping - Solid Ballast Escaped Captivity Hybridized Stocked Escaped Captivity - Aquaculture Ocean Currents Stocked - Aquaculture Escaped Captivity - Farm Planted Stocked - Aquarium Escaped Captivity - Fur Farm Planted - Erosion Control Stocked - Escaped Escaped Captivity - Pet Planted - Food Stocked - For Biocontrol Escaped Captivity - Pond Planted - Forage Stocked - For Conservation Escaped Captivity - Research Planted - Ornamental Stocked - For Exhibit Escaped Captivity - Zoo Planted - Restoration/Mitigation Stocked - For Food Gulf Stream Drift Planted - Wildlife Habitat Stocked - For Forage Hitchhiker Released Stocked - For Research Hitchhiker - Fishing, Boating Released Aquarium Stocked - For Sport Hitchhiker - Aquaculture Released - Bait Stocked - Illegally Hitchhiker - Aquatic Plants Released - Fish Food Stocked - Misidentified Hitchhiker - Imported Logs Released - Biocontrol Stream Capture Hitchhiker - Imported Plants Released - Food Unknown Hitchhiker - Packing Material Released - Lab Animals Source: U. S. Geological Survey database Great Lakes Aquatic Non-Indigenous Species Information System

38 EXECUTIVE BOARD Chair KRISTIN WEEKS DUNCANSON Duncanson Growers Vice Chair MICHAEL ZUMWINKLE, Director Government Relations Cargill, Inc. Secretary JIM WINTER, VP, North American Agribusiness ECOLAB Kate Frantz SP-5 Industrial Division, MPCA 520 Lafayette Road North St. Paul, MN August 7, 2012 Treasurer STEVEN KRIKAVA, Director Government Relations Land O Lakes, Inc. Immediate Past Chair JOE SWEDBERG, VP Leg Affairs & Marketing Services Hormel Foods Corporation DIRECTORS ALLEN J. ANDERSON JIM BAREKSTEN, Director of Government Affairs CHS Inc. JACK BERNENS, Head, Technology Acceptance Syngenta Seeds, Inc. MARK DAVIS, Chief Executive Officer Davisco Foods International, Inc. PAUL DEBRIYN, President & Chief Executive Officer AgStar Financial Services, ACA RANDAL J. DOYAL, Chief Executive Officer Al-Corn Clean Fuel MEG FREKING, Chief Financial Officer New Fashion Pork TIM GERLACH, Executive Director Minnesota Corn Growers Association ROGER GILLAND Gilland Feedlots Minnesota State Cattlemen s Association MICHAEL HELGESON, Chief Executive Officer Gold n Plump Poultry GENE HUGOSON, Commissioner Minnesota Department of Agriculture ALLEN LEVINE, Ph.D., Dean CFANS, University of Minnesota JERRY LARSON Larson Farms PAT LUNEMANN Twin Eagle Dairy Minnesota Milk Producers Association ADOLPH OJARD, Chief Executive Officer Duluth Seaway Port Authority BILL REILLY, VP Strategic Sourcing & Materials Management Schwan Food Company RE: Draft Clean Water Act Section 401 Conditional Water Quality Certification; EPA proposed VGP2 permit Dear Ms. Frantz, The Minnesota Agri-Growth Council urges the Minnesota Pollution Control Agency to adopt the Environmental Protection Agency s (EPA s) draft 2013 Vessel General National Pollutant Discharge Elimination System Permit without conditions, and not to proceed with the Draft Section 401 Conditional Water Quality Certification that would add unproven layers of state permitting requirements for ballast water treatment. On behalf of the agriculture industry and farm products shipped through the Great Lakes, we have confidence in the EPA s VGP2 permit proposal as employing the best available environmental safeguards for addressing invasive species in ballast water, on the most realistic schedule. Furthermore, to have consistent standards for this permit among all Great Lakes states is a key concern, rather than different standards with associated costs to be enforced by each state. A uniform, appropriately designed safeguard to address invasive species in ballast water is the best approach for shipping through the Great Lakes region, and we feel the VGP2 proposal from EPA best accomplishes this goal, without additional conditions from the Minnesota Pollution Control Agency. Sincerely, Daryn McBeth TOM ROSEN, President Rosen s Diversified, Inc. NICK SINNER, Executive Director Red River Valley Sugarbeet Growers Association MICHAEL SWANSON, Ph.D., Chief Economist Wells Fargo Bank STAFF DARYN MCBETH, President TONY MONDRY, Program Manager KRYSTAL CARON, Communications Director

39 1200 Port Terminal Drive Duluth, Minnesota U.S.A Fax May 25, 2012 SENT VIA Kate Frantz, SP-5 Industrial Division Minnesota Pollution Control Agency 520 Lafayette Road North St. Paul, MN Re: Comments on the MPCA Draft Conditional 401 Certification of the EPA Vessel General Permit (VGP2) Dear Ms. Frantz, The Duluth Seaway Port Authority is commenting on the Draft Conditional MPCA 401 Certification of the EPA Vessel General Permit (VGP2), with additional comments also pertaining directly to the existing Minnesota SDS permit MNG which regulates ships ballast water. Statement of Interest The Duluth Seaway Port Authority is an independent public agency created by the Minnesota Legislature to foster regional maritime commerce. The Authority represents the residents of the harbor community and the state, including the workers and farmers who create products that need access to dependable, efficient and sustainable transportation corridors. The Authority is a leader in resolving the environmental issues posed by shipping and has been a leader in the development of the Great Ships Initiative and the Ballast Water Collaborative since their inception, as well as working with the Corps of Engineers and local stakeholders to develop sustainable handling of dredged materials. Some facts about the Minnesota/Lake Superior harbors: Duluth-Superior harbor is the busiest port in the Great Lakes, the 2 nd busiest bulk port in the U.S. after New Orleans, the 15 th busiest of all U.S. ports based on total tonnage. The port supports 11,510 direct and indirect jobs and provides $1.5 billion in business revenue annually. The Duluth-Superior harbor ranks as #1 in ore shipments in the U.S., #1 in grain shipments on the Great Lakes, and #4 in coal shipments in the U.S. Total MN and WI revenue due to shipping is $2.7 billion, providing 15,000 jobs. All of these economic benefits measure only the impact of shipping, not the economic impact of the industries and agricultural activities that generate the products the ships carry. MN ports of Taconite Harbor, Silver Bay, Two Harbors, and the combined harbor of Duluth- Superior handle an average of 63 million tons each year; about 1/3 of all tonnage handled in the Great Lakes and St. Lawrence Seaway. The Great Lakes-Seaway System is a major international shipping corridor and is a vital alternative to the Mississippi River and Gulf rail infrastructure. It provides competitive alternatives to railroad and barge transportation for Minnesota business. The MPCA must carefully analyze the true costs and calculatable benefits of their regulations. The federal government will not support the cost of designing, analyzing and enforcing State imposed rules.

40 It is incumbent upon the MPCA to apply regulations in a manner that that does not damage the state s economic base, while still ensuring a clean environment. Regulations that cannot provide measurable benefits yet may damage the economic base should not exist. Recommended Action for Minnesota Regarding the VGP2 Section 401 Certification The Duluth Seaway Port Authority recommends that the State of Minnesota GRANT certification of the EPA VGP2. The Authority also recommends that the MPCA immediately reopen the Minnesota SDS permit MNG and make necessary changes that are deemed to be severely detrimental to the Great Lakes shipping industry while not providing measurable additional protection for Minnesota waters. Supporting information The Great Lakes/St. Lawrence Seaway corridor is already the most protected waterway in the world. We need to celebrate the success of the bi-national ballast water exchange/flushing program in place today. Despite fervent searching for new discoveries of AIS on the lakes, not a single ship borne invasive has been discovered since the NOBOB rule was put in place at the beginning of the 2006 shipping season. International and federal standards will further close the door to these invaders. It has been reported by Minnesota Sea Grant that no ballast borne invasives have been discovered on Lake Superior for 8 years. Dr. Sarah Bailey, the foremost ballast water researcher and expert at Environment Canada and Dr. David Reid, Scientist Emeritus of the Great Lakes Environmental Research Laboratory of NOAA have both done extensive research into ballast borne invasives in the lakes, and both agree that the current interim standard of mid-ocean saltwater exchange or flushing in all ballast tanks has been very successful. Adding treatment will effectively close the last narrow pathways by which invasives can be introduced. Not a single ballast treatment device has been type approved by the U.S. Coast Guard specifically for the fresh water of the Great Lakes. This must happen before systems can be installed and certified for use. The National Academy of Sciences has reported to the EPA that this cannot happen in the time frame required by the MN SDS permit MNG The State of Minnesota is one of a reported 32 states and tribes who have imposed or have indicated their intentions to impose their own regulations on the ballast water discharges from ships. These state actions are minimally coordinated, despite the successful information exchanges accomplished through the efforts of the Ballast Water Collaborative. These state regulations will simply add layers of administration and cost to a federal program that is designed to fully address the risk and to change as conditions vary and as technology develops. Minnesota s own additional requirements are now known to not add measurable benefits to a a federal system that is already working and which is currently being dramatically strengthened. The U.S. Coast Guard has indicated that there are about 60,000 ships in the world. About 1/10 of these ships are built to a size that can fit through the locks and channels of the St. Lawrence Seaway. All 60,000 of these ships have certified ballast water treatment equipment on board per IMO regulations. A tiny percentage of these foreign ships actually visit the Seaway System in a given year. Many of these ships visit our waters only on a spot cargo basis. It may be years between visits and many will never visit the Great Lakes/St. Lawrence Seaway. These ships must also adhere to the national standards that are imposed by the federal governments of U.S. and Canada, in addition to the international IMO standards. The U.S. federal standards are promulgated by the Coast Guard and EPA, each of which is charged under federal law to manage and regulate ballast water discharge.

41 There are a number of conditions proposed in the draft 401 certification that are simply unworkable or impose a heavy additional burden to the ship operators: 1. The VGP2 should not be certified contingent upon compliance with the Minnesota SDS permit for ballast water. It is now known that the SDS permit is unenforceable and unattainable and would actually make it illegal for most ships to even enter Minnesota waters after January 1, The permit contains conditions that are not included in Canadian ballast regulation or in the regulations of neighboring states which share the waters of Lake Superior. Additionally, because the permit cannot be scientifically proven to add a measurable level of water quality, it would make more sense to do away with the Minnesota SDS permit MNG than to either keep it or modify it. There are new Canadian and foreign vessels that will start visiting state waters before This is an immediate problem. 2. The WQBEL will be adjusted under the VGP2 as technology and as ongoing and future research into the risk of establishing new communities of invasives indicates. There is no need for Minnesota to duplicate this effort. 3. Ocean ballast exchange is required by the VGP2. This is verified within every single ballast tank on every ship as it enters Montreal. There is no need for Minnesota to duplicate this requirement. The EPA has formed an advisory committee to receive direct input and direction from the states. Minnesota has agreed to participate in this committee. The Duluth Seaway Port Authority supports continuation of this process, which will permit the federal standard to be responsive to the concerns of individual states. The EPA and U.S. Coast Guard participate in the Ballast Water Collaborative, which has had many successes in sharing engineering, regulatory and scientific information on ballast water handling and on ballast borne invasives in the Great Lakes and Seaway. Once a federal ballast water discharge standard is fully adopted, there will no longer be a need for the MN SDS permit MNG It is simply time for the State of Minnesota to recognize that our state s job is done, to certify the federal standard and then to repeal the current state ballast water permit program in its entirety as soon as the federal standards are in place so ship owners can continue to plan cargo movements in our state waters and through the Seaway. Sincerely, Adolph Ojard Executive Director AO/bmc

42

43

44 May 25, 2012 Kate Frantz Industrial Division Minnesota Pollution Control Agency 520 Lafayette Road North St. Paul, MN Re: Draft Section 401 Conditional Water Quality Certification of EPA Vessel General Permit Dear Ms. Frantz, Canal Barge Company, Inc. (CBC) is a family-owned company that has been in business for over 78 years. We operate a fleet of 32 inland towboats and more than 800 barges, including coastal and offshore deck barges. We are proud to be a part of the industry that is the most environmentally friendly mode of freight transportation, and our personal commitment to the environment is illustrated by the dozens of Environmental Achievement Awards that our vessels received last year from the Chamber of Shipping of America. Thank you for the opportunity to provide comments on MPCA s 401 certification of the Environmental Protection Agency s Vessel General Permit (VGP). We share Minnesota s commitment to protect the waters in which we work. However, the VGP is an extremely poor fit for vessels like ours that travel through the waters of multiple states on a regular basis. This is because the 401 certification process allows states to impose multiple, and potentially conflicting, requirements in addition to the VGP s provisions. It is extremely difficult for vessel crews to change the operations of a towing vessel moving across invisible state lines while they are also focused on the safe operation of the vessel. Therefore, we urge MPCA to certify the VGP without any additional conditions. The true solution, though, is for Congress to establish a new, uniform statutory framework for the regulation of vessel discharges. This framework would provide for environmentally protective standards that keep our waters clean while being tailored to the operations of vessels in interstate commerce. Fortunately, last November, the House of Representatives passed a Coast Guard Authorization Bill with a title that would establish such a framework. We urge MPCA to ask Senator Amy Klobuchar and Senator Al Franken to work to advance this bill in the Senate. Again, thank you for the opportunity to comment MPCA s 401 certification of the VGP. Please do not hesitate to let me know if you have any questions.

45 Sincerely, William S. Murphy 2

46 May 25, 2012 Mr. John Linc Stine, Commissioner Minnesota Pollution Control Agency 520 Lafayette Road North St. Paul, MN Re: Minnesota Section 401 Certification for the 2013 Vessel Discharge General Permit Dear Commissioner Stine: We are writing on behalf of our companies with regard to the regulation of ballast water on the Great Lakes. We request your leadership in ensuring that the final version of the state 401 certification incorporates the recently published U. S. Coast Guard Final Rule regulations for Great Lakes vessels (lakers), thereby accepting the Environmental Protection Agency s (EPA) proposed vessel general permit containing national best management practices for lakers. There is no advantage to the State of Minnesota superseding the federal standards with more onerous and unachievable ballast water requirements. The EPA s newly proposed National Pollutant Discharge Elimination System General Permit for Commercial and Large Recreational Vessels (VGP2) regulates the more than 25 categories of discharges from vessels, including ballast water discharges. It also requires compliance with the Coast Guard regulation of ballast water. Importantly, the EPA and Coast Guard will require installation of ballast water treatment equipment on international vessels, the ships that are primarily responsible for the introduction of exotic, non-indigenous species. However, there is presently no ballast water management system available which can be installed and operate on lakers. Therefore, the Coast Guard s recently published final federal regulation determined that additional study was needed before imposing new standards to lakers. Instead, the Coast Guard applied a series of best management practices to Great Lakes vessels, with a promise to reconsider after further study. In response, the states of Ohio, Wisconsin, New York and Michigan have not included in their 401 certifications or their state permits any requirements for the installation of ballast water management systems on lakers. We urge the MPCA to also adopt the position taken by the federal regulatory agencies, which share your responsibility for protecting the waters of the Great Lakes. In 2011 alone, our companies combined shipped approximately 47 million net tons of iron ore pellets from the eight active iron ore mines of Minnesota and Michigan to integrated steel mills. Iron ore, the key ingredient in steel, supports approximately 135,000 jobs at steel mills and another 865,000 in related industries and activities. In addition, the iron ore industry directly supports 5,500 high quality jobs, most of which are in the state of Minnesota. Like so many other industries, our ability to transport cargo competitively is dependent on cost-effective, environmentally sound, and time-sensitive bulk transportation. The economic impact of a unique, onerous, and unachievable standard in Minnesota

47 could regulate lakers out of business, potentially leaving the state s vast deposits of iron ore stranded on the Mesabi Range. The states of the Great Lakes region are heavily reliant on the production of basic materials such as steel. In order to speed up the economic recovery in these states and around the country, vital commodities such as iron ore must be able to move efficiently and cost-effectively from the mines of Minnesota. To that end, we must ensure a viable option for lakers to legally operate in Minnesota. We recognize and appreciate the importance of protecting the Great Lakes from the threat of aquatic invasive species. However, imposing technologically unachievable standards on a state-by-state basis does not constitute a comprehensive solution. We respectfully request your support for ensuring that Minnesota does not take a position contrary to the federal standards by requiring the installation of technically unachievable treatment equipment on lakers. Thank you for your consideration of this request. Please do not hesitate to contact us with questions or requests for additional comment. Sincerely, Marc F. Stoken General Manager, Raw Materials United States Steel Corporation Jonathan Holmes Vice President and Operations Manager ArcelorMittal Minorca Mine Inc. Terrence R. Mee Senior Vice President Global Iron Ore Sales Cliffs Natural Resources Inc. cc: MPCA Citizens Board: Donald Schiefelbein- Vice Chair Brian J. Bensen Daniel D. Foley, M.D. Eric Gustafson Dennis Jensen David P. Newman Chester A. Wilander

48 VIA Alliance for the Great Lakes * Clean Water Action Minnesota * Great Lakes Committee of the Izaak Walton League of America * Minnesota Center for Environmental Advocacy * Minnesota Conservation Federation * Minnesota Division Izaak Walton League of America * Minnesota Trout Unlimited * National Wildlife Federation * Natural Resources Defense Council Ms. Kate Frantz SP-5 Industrial Division Minnesota Pollution Control Agency 520 Lafayette Road North St. Paul, Minnesota kate.frantz@state.mn.us May 26, 2012 Subject: Draft Section 401 Conditional Water Quality Certification of the U.S. Environmental Protection Agency s Proposed 2013 National Pollutant Discharge Elimination System General Permit for Commercial and Large Recreational Vessels Dear Ms. Frantz, The undersigned are writing to comment on the Minnesota Pollution Control Agency s ( MPCA s ) draft Section 401 Water Quality Certification of the U.S. Environmental Protection Agency s ( EPA s ) proposed 2013 National Pollutant Discharge Elimination System General Permit for Commercial and Large Recreational Vessels ( VGP2 ). Neither VGP2 nor MPCA s draft certification are sufficient to assure that vessel ballast water discharges will comply with Minnesota water quality standards, because they will not prevent the introduction or spread of new aquatic non-indigenous species or the establishment or spread of new aquatic invasive species ( AIS ). Accordingly, MPCA must revise the draft certification. Statements of Interest The Alliance for the Great Lakes is the oldest citizens Great Lakes organization in North America, with tens of thousands of members and supporters throughout the Great Lakes basin. Its mission is to conserve and restore the world s largest freshwater resources using policy, education and local efforts, ensuring a healthy Great Lakes and clean water for generations of people and wildlife. Since 1970, the Alliance has advocated for effective measures to prevent 1

49 the introduction and spread of AIS in the Great Lakes basin. We are concerned that the draft certification will result in the introduction or spread of new AIS, which will impact the use and enjoyment of the Great Lakes and Minnesota s waters. Clean Water Action is a one million member organization of diverse people and groups joined together to protect our environment, health, economic well-being and community quality of life. Our goals include clean, safe and affordable water; prevention of health threatening pollution; creation of environmentally safe jobs and businesses; and empowerment of people to make democracy work. Clean Water Action organizes strong grassroots groups and coalitions and campaigns to elect environmental candidates and solve environmental and community problems. Invasive species are crowding out our Great Lakes fish and wildlife. Clean Water Action is working to protect the Great Lakes we love and clean them up for future generations to enjoy. The Great Lakes Committee of the Izaak Walton League of America ( IWLA ) represents IWLA members in states across the Great Lakes Basin. We have been strongly advocating for the need for Ballast Water Standards and permitting to eliminate the threat of AIS in the Great Lakes as well as Emergency Treatment System development for ballast water treatment that fails to comply with existing and future standards or other emergencies that occur. The Minnesota Center for Environmental Advocacy ( MCEA ) is a Minnesota-based non-profit environmental organization whose mission is to use law, science, and research to protect and enhance Minnesota s natural resources, wildlife and the health of its people. One of MCEA s five program areas is wildlife and natural resources. As part of that program, MCEA has a deep interest in issues related to ballast water and preventing the significant threats posed by introducing and spreading AIS to the Minnesota waters of Lake Superior. The Minnesota Conservation Federation ( MCF ) is a nonprofit corporation organized and existing under the laws of the State of Minnesota. MCF has approximately forty organizational members and five hundred individual members. MCF s purpose is to further the conservation of natural and recreational resources in Minnesota. MCF has worked and advocated for the protection of water quality from the introduction and spread of AIS in discharges of ballast water by ships. MCF s members use and derive aesthetic enjoyment from wildlife and natural resources in Minnesota, including wetlands, streams, rivers, and lakes. MCF members therefore have a substantial interest in maintaining and protecting the quality of Minnesota s waters. MCF members are concerned that the draft certification will result in the introduction or spread of new aquatic non-indigenous species or the establishment or spread of new AIS, which will interfere with or eliminate their use and enjoyment of Minnesota s waters. The Minnesota Division Izaak Walton League of America is a collection of seventeen chapters across the state which have strongly advocated for enforcement of our laws to protect our Minnesota waters and for ballast water standards that will eliminate AIS introductions in ballast water. We are seeing the degradation to inland lakes from zebra mussels as well as the economic impacts for residents, businesses and recreational boaters. Minnesota Trout Unlimited is a conservation organization working to protect, restore, and sustain Minnesota s coldwater fisheries and their watersheds, including Lake Superior. Our 2

50 members fish Lake Superior and its numerous tributaries, as well as Minnesota waters statewide, and have a strong interest in protecting them from AIS. We have long been at the forefront of efforts to protect and restore Lake Superior fisheries and North Shore watersheds, including by advocating for adequate regulation of ballast water discharges from all Great Lakes vessels to prevent the introduction and spread of new AIS into Minnesota waters. The National Wildlife Federation ( NWF ) is a national, non-profit organization with approximately one million members nationwide and tens of thousands of members in Minnesota. NWF s mission is to maintain and enhance the quality of the nation s waters. NWF has strongly advocated for effective measures to prevent the introduction and spread of new aquatic nonindigenous species and the establishment and spread of new AIS in the Great Lakes basin. NWF members use Minnesota waters and the Great Lakes for recreational uses and aesthetic enjoyment, including, but not limited to, fishing, boating, and swimming. NWF members therefore have a substantial interest in maintaining and protecting the quality of Minnesota s waters. NWF members are concerned that the draft certification will result in the introduction or spread of new aquatic non-indigenous species or the establishment or spread of new AIS, which will interfere with or eliminate their use and enjoyment of Minnesota s waters. The Natural Resources Defense Council ( NRDC ) is a national not-for-profit membership corporation, incorporated in the State of New York, which has over 350,000 members nationwide. NRDC s mission is to safeguard the Earth: its people, its plants and animals, and the natural systems on which all life depends. NRDC s board and staff of lawyers, scientists, and other environmental specialists have strongly advocated for effective measures to prevent the introduction and establishment of aquatic non-indigenous species in the Great Lakes basin. Members of NRDC use Minnesota waters and the Great Lakes for recreational uses and aesthetic enjoyment, including, but not limited to, fishing, boating, and swimming. Members of NRDC have a substantial interest in maintaining and protecting the quality of Minnesota s waters. Members of NRDC are concerned that the draft certification will result in the invasion or spread of aquatic non-indigenous species, which will interfere with or eliminate their use and enjoyment of Minnesota waters. Statement of Action MPCA Should Take MPCA should revise the draft certification as follows: Certify VGP2 only if MPCA can certify that the discharges it authorizes will comply with Minnesota water quality standards and that MPCA s certification conditions assure that dischargers will comply with Minnesota water quality standards. MPCA s draft certification that its conditions provide reasonable assurance of compliance with Minnesota water quality standards is insufficient to satisfy the requirements of 401 of the Clean Water Act ( CWA ). 1 1 See Draft Letter from David Richfield, MPCA, to Tinka G. Hyde, U.S. EPA (May 7, 2012) ( Draft Certification ), at p. 2, 1 (Ex. 1). 3

51 Revise Condition #2 by adding a numeric water quality-based effluent limitation ( WQBEL ) for AIS that will prevent the introduction or spread of new aquatic nonindigenous species and the establishment or spread of new AIS. Revise Conditions ##2 and 6 by adding a requirement that all vessels meet the WQBEL, including oceangoing vessels, vessels operating exclusively within the Great Lakes ( lakers ), vessels travelling short distances, vessels that can carry no more than 8 cubic meters of ballast water, and unmanned barges. Revise Conditions ##2 and 6 by adding a requirement that all vessels meet the WQBEL on or before the following deadlines: New small 2 vessels (built on or after November 30, 2012): January 1, 2014 New large vessels (built on or after November 30, 2012): January 1, 2015 Existing vessels (built before November 30, 2012): January 1, 2016 Revise Condition #7 by imposing monitoring and reporting requirements that will make compliance with the WQBEL practically enforceable. Reasons for Revising the Draft Certification As we will explain in Parts III and IV of these comments, below, neither VGP2 nor MPCA s draft certification will assure compliance with Minnesota water quality standards. Therefore, unless MPCA revises the draft certification as detailed above, VGP2 will permit the continued discharge of aquatic organisms to Minnesota waters, making the introduction or spread of new aquatic non-indigenous species and the establishment or spread of new AIS infestations inevitable. I. AQUATIC INVASIVE SPECIES IMPAIR OR THREATEN TO IMPAIR MINNESOTA WATER QUALITY STANDARDS AIS are a persistent and unique problem in coastal and inland waters, costing the United States billions of dollars annually. 3 It is estimated that ship-borne AIS cost the Great Lakes Region alone at least $200 million dollars every year. 4 Ballast water released from ocean vessels is the recognized vector for 65% of all invasions recorded in the Great Lakes since the opening of the St. Lawrence Seaway in Although lakers may not be responsible for introducing invasive species to the Great Lakes region, their potential for facilitating the spread of invasive species cannot be ignored. 2 Small vessels are those with a ballast water capacity less than or equal to 5,000 metric tons. Large vessels are those with a ballast water capacity greater than 5,000 metric tons. 3 Nat l Aquatic Nuisance Species Task Force, Aquatic Nuisance Species Impacts, ANS TASK FORCE.GOV, (last visited Jan. 31, 2012) (Ex. 2). 4 U.S. Dep t of Agric., Annual Losses to Great Lakes Region by Ship-borne Invasive Species at least $200 Million, NATIONAL INVASIVE SPECIES INFORMATION CENTER (July 2008), (Ex. 3). 5 Anthony Ricciardi, Patterns of invasion in the Laurentian Great Lakes in relation to changes in vector activity, 12 DIVERSITY AND DISTRIB. 425 (2006) (Ex. 4). 4

52 Domestic ballast water transfers, such as those performed by lakers, may contribute to nonindigenous species introduction and are likely the most important ballast-mediated pathway of secondary spread within the Great Lakes. 6 As MPCA and the Minnesota Department of Natural Resources pointed out in comments on VGP2, There are numerous examples of aquatic invasive species (AIS) that are present in Lake Michigan, Huron and Erie that are not yet established in Lake Superior. For these species, the most likely dispersal mechanism is ballast water. 7 AIS pose several dangers to aquatic ecosystems, including: outcompeting native species, threatening endangered species, damaging habitat, changing food webs, and altering the chemical and physical aquatic environment. Invasive species are thought to have been involved in 70% of this century s extinctions of native aquatic species, and 42% of current endangered species are impacted significantly by invasive species. 8 The Minnesota Department of Natural Resources has designated a long list of water bodies as infested by AIS. 9 The designated water bodies include Lake Superior and the St. Louis River, among many others, and the species causing the designations include the Zebra mussel, Eurasian ruffe, New Zealand mudsnail, round goby, spiny water flea, and white perch, among others. 10 A. Aquatic invasive species have harmed existing and designated uses and violate water quality criteria AIS have severely impaired designated and existing uses of Minnesota waters and violated water quality criteria. Designated uses include the propagation of fish and wildlife, recreation, aesthetic enjoyment, navigation, and the supply of water to the public, agriculture, and industry. 11 Existing uses are those that were in existence before January 1, Zebra Mussel The Zebra mussel is found in several water bodies within Minnesota borders: in parts of Lake Superior, in nineteen other lakes, and in parts of the St. Croix River, Pelican Brook, and the Zumbro River. 13 The invasive species was probably introduced into the Great Lakes through the 6 Michael P. Rup et al., Domestic ballast operations on the Great Lakes: potential importance of Lakers as a vector for introduction and spread of nonindigenous species, 67 CAN. J. FISH. AQUATIC SCI. 256, 258 (2010) [hereinafter Potential Importance of Lakers as a Vector] (Ex. 6). 7 Letter from Rebecca J. Flood, Assistant Commissioner, MPCA, & Mary P. McConnell, Assistant Commissioner, Minnesota Department of Natural Resources, to Ryan Albert, Environmental Scientist, Water Permits Division, U.S. EPA 1 (Feb. 21, 2012). 8 U.S. Envtl. Prot. Agency, Invasive Non-Native Species, (last visited Apr. 2, 2012) (Ex. 7). 9 MDNR, Designation of Infested Waters (Apr. 30, 2012), available at (last visited May 17, 2012) (Ex. 8). 10 Id. 11 Minn. R Minn. R , Subp. 2.D. 13 Susan Balgie et al., Invasive Species Program, MN Dep t of Natural Resources, Invasive Species of Aquatic Plants and Wild Animals in Minnesota: Annual Report (2011), available at 5

53 discharge of ballast water. 14 These mussels can create numerous problems, such as clogging intake pipes for industry or killing native mussels. 15 Large populations of the mussels may also interfere in the aquatic food chain by consuming too much algae and other tiny particles, thereby making these nutrient sources unavailable for other organisms. 16 Invasive mussels have also been reported on boats and residential water intake systems. 17 In addition, the shells can cause cuts and scrapes if they grow large enough on rocks, swim rafts and ladders, and [a]nglers may lose tackle as the shells can cut fishing line. 18 These effects violate narrative criteria associated with several applicable Minnesota water quality classifications. Narrative criteria for Class 2 waters, which include Lake Superior, state that there shall be no significant changes in the species composition and that the propagation of the fish and other biota normally present shall not be prevented or hindered by the discharge of wastes to the waters. 19 Zebra mussels impair species diversity and composition, feeding characteristics, and species abundance and condition of aquatic invertebrates. 20 Native mussels, for example, may be killed directly by zebra mussels or indirectly through competition. In the Superior-Duluth Harbor, [t]he bottom was completely covered with zebra mussels and many of the native mussels were being killed due to zebra mussel infestations. 21 Lake Superior is also designated a Class 5 water body, and accordingly the water quality shall be such as to avoid any interference with navigation or damaging effects on property. 22 These criteria are violated by the fouling of boating equipment and water intake systems by clumps of zebra mussels and the severing of fishing lines. Likewise, injuries from sharp mussel shells violate the applicable Class 2A requirement that water quality be adequate for aquatic recreation Eurasian Ruffe Ruffe is an invasive species of fish that was introduced to Lake Superior from ballast water discharged into the Duluth harbor around 1985, and has since spread to other areas in Lake legislative_report_2010.pdf [hereinafter 2010 Report] (Ex. 9). 14 Zebra Mussels Threaten Inland Waters: An Overview, Minnesota Sea Grant, zebramussels_threaten (last visited Jan. 31, 2012) (Ex. 10) Report Susan Balgie, et al., Invasive Species Program, MN Dep t of Natural Resources, Invasive Species of Aquatic Plants and Wild Animals in Minnesota: Annual Report (2010), available at [hereinafter 2009 Report] (Ex. 11) Report Zebra Mussel (Dreissena polymorpha), MN Dep t of Natural Resources, mn.us/invasives/aquaticanimals/zebramussel/index.html (last visited Jan. 26, 2012) (Ex. 12). 19 Minn. R subp See Minn. R subp. 6(A)-(C). 21 Marie Zhuikov, Major Zebra Mussel Infestation in Harbor Impacts Native Mussels, Boaters, Seiche, Jan. 2001, els_boaters.html (Ex. 13). 22 Minn. R subp Minn. R subp. 2. 6

54 Superior and to other Great Lakes. 24 The species is aggressive and can harm ecosystems and native commercial and sport fish populations by competing for food and habitat. 25 Populations of yellow perch, emerald shiners, and other forage fish caught in survey trawls have declined significantly as numbers of ruffe have increased in the St. Louis River. 26 Trawl samples show that [b]y 1992, ruffe had become the most numerous fish in [the St. Louis River]. 27 Therefore, in at least the St. Louis River (categorized as Classes 2B, 3B, 3C, 4A, 4B, 5, and 6), the ruffe is responsible for significant changes in the species composition and harm to the food web that supports commercial and sport fisheries. 28 These effects are prohibited by general Class 2 narrative standards. 29 They are also prohibited by narrative criteria specific to Class 2B New Zealand Mudsnail This invasive species was brought to the Great Lakes in ballast water, and is currently found in and around Duluth Harbor and in the St. Louis River estuary. 31 New Zealand mudsnails outcompete species that are important forage for native trout and other fishes and provide little nutrition to fish that eat them. 32 They have adapted so well in Western rivers that they have pushed out almost all of the native insects, snails, and other invertebrates that are important food for fish. 33 The mudsnails can take over so quickly because they breed asexually essentially cloning themselves. Small populations can quickly explode. 34 Class 2A narrative standards state that the quality of the waters shall be such to permit the propagation and maintenance of a healthy community of cold water sport or commercial fish 24 Eurasian Ruffe (Gymnocephalus cernuus), MN Sea Grant, (last visited Jan. 26, 2012) (Ex. 14). 25 Id. 26 Ruffe (Gymnocephalus cernuus), MN Dep t of Natural Resources, aquaticanimals/ruffe/index.html (last visited Feb. 2, 2011) (emphasis added) (Ex. 15). 27 Superior Pursuit: Facts about the Greatest Great Lake, MN Sea Grant, (last visited Jan. 26, 2012) (Ex. 16). 28 Minn. R , Minn. R subp. 3 ( the normal fishery and lower aquatic biota upon which it is dependent and the use thereof shall not be seriously impaired or endangered [and] the species composition shall not be altered materially ). 30 Minn. R subp. 4 ( The quality of Class 2B surface waters shall be such as to permit the propagation and maintenance of a healthy community of cool or warm water sport or commercial fish and associated aquatic life, and their habitats. ). 31 New Zealand Mudsnail (Potamopyrgus antipodarum), MN Dep t of Natural Resources, invasives/aquaticanimals/nz_mudsnail/index.html (last visited Jan. 26, 2012) (Ex. 17); MN Collection Information for the New Zealand Mudsnail, U.S. Geological Survey, queries/collectioninfo.aspx?speciesid=1008&state=mn (last visited Jan. 26, 2012) (Ex. 18). 32 New Zealand Mudsnail (Potamopyrgus antipodarum), MN Dep t of Natural Resources, invasives/aquaticanimals/nz_mudsnail/index.html (last visited Jan. 26, 2012) (Ex. 19). 33 New Zealand Mudsnails Found in Duluth-Superior Harbor, The Seiche, Jun. 2006, (last visited May 25, 2012) (Ex. 20). 34 Tiny Snail, Big Trouble, US EPA, (last updated Feb. 10, 2011) (Ex. 21). 7

55 and associated aquatic life, and their habitats. 35 disrupts the food chain for trout and other fish. The mudsnail violates this standard because it 4. Round Goby The round goby, which entered the Great Lakes through the discharge of ballast water, is another disruptive invasive species found in Minnesota waters. 36 This aggressive [and] pugnacious species can displace native fish, eat their eggs and young, take over optimal habitat, spawn multiple times a season, and survive in poor quality water. 37 Since it was discovered in 1995, the round goby s population has steadily increased and spread within the [Duluth-Superior] Harbor. 38 The round goby has documented negative impacts on mottled sculpin reproduction and suspected impacts on other native bottom dwelling fish, such as darters and sturgeon. 39 This violates the narrative criteria applicable to Lake Superior, whose species composition shall not be altered materially, and whose normal fishery shall not be seriously impaired or endangered Spiny Waterflea The spiny waterflea was also introduced to the Great Lakes through ballast water. The invasive species is now found across the Great Lakes, as well as in some inland water bodies in Minnesota. 41 The spiny waterflea disrupts aquatic ecosystems by consuming large quantities of zooplankton and can greatly reduce the amount of zooplankton available for native fish to eat, to the point of eliminating types of native zooplankton from water bodies. 42 The spiny waterflea can also interfere with fishing. Spiny waterfleas collect in masses on fishing lines and downrigger cables. These masses can clog the first eyelet of rods, damage a reel's drag system, and prevent fish from being landed. 43 Such incidents violate both Class 2A criteria, which requires Lake Superior to be suitable for aquatic recreation of all kinds, including bathing, for which the waters may be usable, and Class 5 criteria, which require that the quality of Lake Superior is such as to avoid any damaging effects on property Minn. R subp Round goby (Neogobius melanostomus), MN Dep t of Natural Resources, aquaticanimals/roundgoby/index.html (last visited Jan. 26, 2012) (Ex. 22). 37 Round Gobies Invade North America, Minnesota Sea Grant, (last visited Jan. 27, 2012); Round Goby (Apollonia Melanostomus), Minnesota Sea Grant, (last visited Jan. 27, 2012) (Ex. 24). 38 Susan Balgie, et al., Invasive Species Program, MN Dep t of Natural Resources, Invasive Species of Aquatic Plants and Wild Animals in Minnesota: Annual Report (2006), available at umn.edu/courses/nresexotics3002/handouts/invasivespeciesprogannualreport06.pdf (last visited May 25, 2012) (Ex. 25). 39 Id. 40 Minn. R subp Report 118; Spiny water flea (Bythotrephes longimanus), MN Dep t of Natural Resources, (last visited Jan. 28, 2012) (Ex. 26) Report 118; Spiny water flea (Bythotrephes longimanus), MN Dep t of Natural Resources. 43 Spiny and Fishhook Waterflea, Minnesota Sea Grant, (last visited Jan. 29, 2012) (Ex. 27). 44 Minn. R Subp. 2; Minn. R Subp. 2. 8

56 6. White Perch White perch may have been introduced to Duluth Harbor through the discharge of ballast water. 45 White perch are competitors of native fish species and have the potential to cause declines of fish populations because they eat the eggs of walleye and other fish species. 46 This indicates that narrative criteria applicable to Lake Superior (maintenance of species composition and native fisheries) have been violated. B. New invasive species could also harm existing and designated uses and violate water quality criteria EPA estimates that approximately 58 non-indigenous species currently pose high or medium risk for becoming established in the Great Lakes and for causing ecological harm. 47 One species likely to invade the Great Lakes through ballast water discharges is the golden mussel. The golden mussel shares some of the physical characteristics of the zebra mussel, but could potentially invade a broader range of habitats and therefore cause even more damage to Minnesota s ecosystem. 48 Like the zebra mussel, the golden mussel clogs the intakes, pipes and filters of water treatment facilities, industrial plants, and power stations; 49 it also starves native bivalves. 50 Similarly, the monkey goby, a member of the goby fish family, has the potential to be introduced into the region through ballast water discharges and, like the round goby, could out-compete native fish species for food and habitat. 51 Another potential invader is the killer shrimp, which preys on native shrimp and young fish. 52 It has already invaded and spread throughout Western Europe, causing significant ecological disruption. 53 II. BOTH STATE AND FEDERAL LAW REQUIRE A STATE CERTIFICATION THAT ASSURES COMPLIANCE WITH STATE WATER QUALITY STANDARDS A. Federal Law In 401, the CWA gives states an express role in approving or barring discharges into their navigable waters, and in setting out the conditions under which such discharges may occur. 54 Pursuant to 401(a)(1), applicants for a federal permit for an activity that may result 45 Morone Americana, USGS, (last updated Nov. 22, 2011) (Ex. 28). 46 White Perch (Morone americana), MN Dep t of Natural Resources, (last visited Feb. 2, 2012) (Ex. 29). 47 U.S. Envtl. Prot. Agency, Office of Research and Development, Natl. Center for Envtl. Assessment, EPA-600-R F, Predicting Future Introductions of Nonindigenous Species to the Great Lakes, at 1 (Nov. 2008), available at (last visited May 25, 2012) (Ex. 30). 48 See NWF Golden Mussel Fact Sheet (Ex. 31). 49 Id. 50 Id. 51 See NWF Monkey Goby Fact Sheet (Ex. 32). 52 See NWF Killer Shrimp Fact Sheet (Ex. 33). 53 Id. 54 Lake Carriers Ass n v. EPA, 652 F.3d 1, 3 (D.C. Cir. 2011); accord Keating v. FERC, 927 F.2d 616, 622 (D.C. Cir. 1991) ( Through this [ 401 certification] requirement, Congress intended that the states would retain the power to block, for environmental reasons, local water projects that might otherwise win federal approval. ); U.S. v. Marathon Dev. Corp., 867 F.2d 96, (1st Cir. 1989). 9

57 in a discharge into state waters must provide the federal permitting agency with a certification from the state that the discharge will comply with applicable effluent limitations, state water quality standards, and standards of performance. 55 Section 401(d) also requires the certification to set forth limitations and monitoring requirements necessary to assure that dischargers will comply with state water quality standards. 56 In PUD No. 1 of Jefferson County v. Washington Dept. of Ecology ( PUD No. 1 ), the Supreme Court held Although 303 [, which concerns water quality standards,] is not specifically listed in 401(d), the statute allows States to impose limitations to ensure compliance with 301 of the Act, and Section 301 in turn incorporates 303 by reference. 57 To assure that dischargers will comply with a water quality standard, a certification must include conditions sufficient to assure compliance with all three components of the standard: designated uses, water quality criteria (numeric or narrative), and the antidegradation (in Minnesota, the nondegradation ) policy. 58 In PUD No. 1, the Court upheld a condition in the State of Washington s certification establishing minimum flow requirements to assure that designated uses would be protected and that any discharges would comply with the state s antidegradation policy. 59 To protect a designated use, effluent limitations must assure that the use will be maintained. This follows from the CWA s mandate that WQS shall... serve the purposes of this Act, 60 which are to restore and maintain the chemical, physical, and biological integrity of the Nation s waters. 61 An impairment of a designated use would run contrary to the mandate of maintaining the integrity of the water. Consequently, a violation of a WQS occurs where a designated use continues to a diminished extent. The purposes of the Act would not be served by deeming a designated use protected, even as its usefulness degrades, by turning a blind eye to the degradation of a designated use until it is completely eliminated U.S.C. 1341(a)(1), which provides in pertinent part as follows: Any applicant for a Federal license or permit to conduct any activity... which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate... that any such discharge will comply with the applicable provisions of sections 1311, 1312, 1313, 1316, and 1317 of this title U.S.C. 1341(d), which provides in pertinent part as follows: Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with any applicable effluent limitations and other limitations, under section 1311 or 1312 of this title, standard of performance under section 1316 of this title, or prohibition, effluent standard, or pretreatment standard under section 1317 of this title, and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section. 57 PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700, (1994). 58 Id. at , 719. See also 40 C.F.R (identifies the elements that states must include in water quality standards, including designated uses, water quality criteria, and an antidegradation policy); U.S. ENVTL. PROT. AGENCY, EPA-823-B , WATER QUALITY STANDARDS HANDBOOK 1.2 (Jul. 3, 2007), (last visited May 25, 2012) (Ex. 34). [Hereinafter EPA WQS HANDBOOK.] 59 PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. at 715, U.S.C. 1313(c)(2)(A) U.S.C. 1251(a) (emphasis added). 10

58 The antidegradation policy requires the maintenance and protection of existing uses and the water quality necessary to protect existing uses. 62 In Minnesota, Existing means in existence before January 1, No activity is allowable under the anti-degradation policy which would partially or completely eliminate any existing use. 64 Also, to assure compliance, limitations and monitoring requirements must be enforceable as a practical matter. This follows from the meaning given to similar language in CWA 402, which requires NPDES permits to assure compliance with water quality standards. 65 EPA has recognized that this means [e]ach permit must be written clearly and unambiguously so that compliance can be tracked effectively and the permit can be enforced if violations occur. 66 In the same vein, EPA instructed that [m]onitoring is performed to determine compliance with effluent limitations established in NPDES permits [and] establish a basis for enforcement actions EPA s guidance echoes Congress s intent that the CWA establish clear requirements that provide precise benchmarks for performance and a basis for enforcement under the citizen suit provision. 68 That provision empowers citizens to sue for violations both of NPDES permits and certifications. 69 Thus, the Act, its legislative history, and EPA regulations and guidance all create a practical enforceability requirement for effluent limitations and monitoring requirements imposed pursuant to 401 just as they do for such limitations and requirements imposed pursuant to 402. The critical role of enforcement in effectuating the purposes of the Clean Water Act is reflected in Congress s enactment and successive amendments of the law. 70 Beginning with the 1972 amendments, Congress strengthened the enforcement authority of the 62 See 40 C.F.R (a)(1); Wis. Admin. Code NR (1) ( [N]o new or increased effluent [shall] interfere[] with or become[] injurious to any assigned uses made of or presently possible in... [state] waters. ). 63 Minn. R , Subp. 2.D. But see 40 C.F.R (e). 64 See EPA WQS HANDBOOK 4.4, - section4. Thus, a state must protect existing uses (including existing uses which are also designated uses) against degradation, not just elimination. See PUD No. 1, 511 U.S. at U.S.C. 1342(a)(2) ( The Administrator shall prescribe conditions for such permits to assure compliance with the requirements of paragraph (1) of this subsection, which include CWA 301). Section 301 in turn incorporates by reference 303, which concerns water quality standards. PUD No. 1, 511 U.S. at EPA s regulations reinforce the necessity that NPDES permits assure compliance with water quality standards. For instance, one regulation requires permitting authorities to ensure that water quality-based effluent limitations ( WQBELs ) are developed to achieve a level of water quality that complies with all applicable water quality standards. 40 C.F.R (d)(1)(vii)(A). Another prohibits the issuance of an NPDES permit when imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected states. 40 C F.R 122.4(d) (emphasis added). Affected states necessarily include the water quality standards of the state issuing the permit. 66 U.S. Environmental Protection Agency, NPDES Permit Writers Manual, 11.5 at (EPA-833-K , 2010) [hereinafter NPDES PERMIT WRITERS MANUAL ]. 67 Id at S. Rep. No , at 81 (1971) ( The citizen suit provision [Section 505] is consistent with principles underlying... the Act, [which are] the development of clear and identifiable requirements. Such requirements should provide manageable and precise benchmarks for performance. ) U.S.C. 1365(a)(1)(A) (authorizing citizen suits for violations of an effluent standard or limitation ) & (f) (defining the term effluent standard or limitation to mean a certification under section 1341 ); Stillwater of Crown Point Homeowner's Ass'n, Inc. v. Kovich, No. 2:09 CV 157 PRC, 2011 WL , at *12 (N.D. In., Oct. 11, 2011). 70 See Black Warrior Riverkeeper, Inc. v. Cherokee Mining, LLC, 548 F.3d 986, (11th Cir. 2008). 11

59 federal government and enabled private citizens to bring an action in federal court against anyone violating effluent limitations. 71 B. State Law As we will now explain, MPCA has an obligation under state law to respond to a request for certification and base its decision on whether VGP2 will prevent AIS. The state legislature has granted MPCA the power and duty to establish standards to prevent water pollution, including effluent limitations stringent enough to meet water quality standards. 72 MPCA may only issue a certification upon a determination that a discharge and discharger will comply with all applicable federal and state statutes and rules. 73 MPCA has explained this standard as follows: A Section 401 water quality certification may be granted if the applicant demonstrates that an activity, such as discharge of dredged or fill materials, will not violate Minnesota's water quality standards or result in adverse long-term or short-term impacts on water quality. Such impacts can be direct or cumulative with other indirect impacts. 74 Under Minnesota rules, then, and consistent with PUD No. 1, compliance includes compliance with the water quality standards Minnesota adopted pursuant to 303 of the Clean Water Act. 75 MPCA must include in any 401 certification those conditions necessary to assure compliance with water quality standards. Certifications must contain the same conditions required under the rules applicable to NPDES permits. 76 Under those rules, a national pollutant discharge elimination system permit issued by the agency must contain conditions necessary for the permittee to achieve compliance with all Minnesota or federal statutes or rules. 77 Therefore, MPCA was obligated to include conditions in its certification necessary to achieve compliance with state water quality standards. 1. Minnesota s reasonable assurance standard does not comport with the federal will comply standard for certification Minnesota s rules are contrary both to 401 and its own rule at , Subp. 1(A). To wit, the rules authorize MPCA to issue a certification based upon [a] statement that there is 71 Id. at Minn. Stat , Subd. 1(e)(8). 73 Minn. R , Subp. 1(A) (requiring a certification determination to be made in accordance with Minn. R , Subp. 1). 74 Clean Water Act Section 401 Water Quality Certifications, MPCA, water-permits-and-rules/water-permits-and-forms/clean-water-act-section-401-water-quality-certifications.html (last visited Feb. 20, 2012) (emphasis added) (Ex. 35). 75 See PUD No. 1, 511 U.S. at A section 401 certification shall contain the special conditions described in part , subparts 2 to 9, which conditions shall be established in the same manner as special conditions are established under part for national pollutant discharge elimination system permits. Minn. R , Subp Minn. R , Subp. 1 (emphasis added). 12

60 reasonable assurance that the activity will be conducted in a manner that will not violate applicable water quality standards. 78 This standard may have been modeled on a vestigial EPA regulation, now codified at 40 C.F.R (a)(3), which sets out the same reasonable assurance standard. 79 EPA s regulation is a holdover from the 1970 version of the Federal Water Pollution Control Act, specifically 21(b), the predecessor of 401. Section 21(b) only required reasonable assurance. 80 EPA never conformed its regulation to the amended language included in Thus, EPA s regulation and MPCA s rule is not an interpretation of 401(a)(1) or (d). This explains the clear inconsistency between the rule and the plain language of 401, which deprives the rule of any force or effect. The standard for certification is unqualified compliance with water quality standards, just as 401(a)(1) and (d) say it is; the standard is not reasonable assurance of compliance. EPA s outdated regulation does not override Congress s decision to change the legal standard to the stricter will comply requirement. The law is well-settled that a regulation that is inconsistent with the underlying statute is null and void. 82 Therefore, it was inappropriate for MPCA to base its certification on the reasonable assurance standard. It could only certify the VGP if it was certain that discharges will comply with water quality standards. 2. Every discharge has the potential to result in the introduction or spread of a new AIS, triggering the nondegradation component of Minnesota s water quality standards Each ballast water discharge to a water body in Minnesota could potentially result in the introduction or spread of a new AIS. The establishment of new AIS would violate the state s nondegradation policy for outstanding resource value waters, such as Lake Superior. 83 That policy prohibits any new or expanded discharge of any sewage, industrial waste, or other waste unless there is not a prudent and feasible alternative to the discharge. 84 Expanded discharge means a discharge that changes in volume, quality, location, or any other manner after the effective date the outstanding resource 78 Minn. R , Subp. 1(C). 79 See 40 C.F.R (a)(3) ( A certification made by a certifying agency shall include... [a] statement that there is reasonable assurance that the activity will be conducted in a manner which will not violate applicable water quality standards. ) Stat. 91, 108 (1970) C.F.R (a)(3) was originally 40 C.F.R (a)(3), and the text of the regulation did not undergo any change when it was re-designated. Compare 40 C.F.R (a)(3) with 36 Fed. Reg. 22,369, 22,488 (1971) (setting forth 40 C.F.R (a)(3)). Nor did EPA purport any of the incarnations of the regulation to be an interpretation of 401. See 44 Fed. Reg. 32,854, 32,856 (1979) ; 37 Fed. Reg. 21,441 (1972). To the contrary, upon re-designating the regulation for the final time, EPA expressly noted, The existing State certification regulations predate the Federal Water Pollution Control Act Amendments of 1972 and have never been updated. 44 Fed. Reg. at 32,856). 82 U.S. v. Larionoff, 431 U.S. 864, 873 (1977); Dixon v. United States, 381 U.S. 68, 74 (1965); Manhattan Gen. Equip. Co. v. Comm'r of Internal Revenue, 297 U.S. 129, 134 (1936). 83 Minn. R , Subp. 2(A). 84 Id. at , Subp

61 value water was designated such that an increased loading of one or more pollutants results. In determining whether an increased loading of one or more pollutants would result from the proposed change in the discharge, the agency shall compare the loading that would result from the proposed discharge with the loading allowed by the agency as of the effective date of outstanding resource value water designation. 85 The burden of showing that there is not a prudent and feasible alternative is on the permit applicant. 86 Even if no prudent or feasible alternative exists, the discharge must be restrict[ed] to the extent necessary to preserve the existing high quality, or to preserve the wilderness, scientific, recreational, or other special characteristics that make the water an outstanding resource value water. 87 The presence of a new AIS would constitute a change in quality. 88 However, because MPCA allowed the unlimited discharge of organisms when Lake Superior was designated as an outstanding resource value water, the Minnesota Court of Appeals has determined that the discharge of a new AIS would not cause the increased loading of a pollutant. 89 In making this finding, the court was mistaken. New non-indigenous species cannot be lumped together with non-indigenous species that were discharged in years past to form a monolith labeled AIS, any more than mercury, lead, and copper can be lumped together as metals. By definition, each species is unique. Thus, each time a vessel discharges a new individual non-indigenous species, it discharges a new effluent, just as a factory that once discharged mercury discharges a new effluent when it discharges lead or copper. Moreover, new AIS are likely to have different impacts on existing uses, just as current individual AIS have different impacts. For instance, the zebra mussel depletes the food supply for other aquatic life; reduces the effectiveness of predatory fish; fosters plant growth that interferes with boaters, anglers, and swimmers; promote the growth of blue-green algae, and clogs water intake and distribution pipes. The round goby, on the other hand, outcompetes native fish species. For these reasons, MPCA should have conducted a nondegradation review. Even MPCA has recognized that a nondegradation review is required for ballast water discharges by new ships operating in Lake Superior. 90 Nonetheless, MPCA appears not to have conducted any nondegradation review on the ground that certification conditions will reduce the likelihood of 85 Minn. R Subp. 2(C) (emphases added). 86 See Minnesota Ctr. for Envtl. Advocacy v. Comm'r of Minnesota Pollution Control Agency, 696 N.W.2d 95, 102 (Minn. Ct. App. 2005) ( The burden of demonstrating that there is no prudent and feasible alternative is on the permit applicant. ). 87 Minn. R , Subp. 6. See also Minnesota Ctr. for Envtl. Advocacy v. Comm'r of Minnesota Pollution Control Agency, 696 N.W.2d 95, 107 (Minn. Ct. App. 2005) (The MPCA s own policies require an exercise of that authority to maintain the high water quality of a valuable water resource. ). 88 See In re Request for Issuance of SDS Gen. Permit MNG300000, 769 N.W.2d 312, 319 (Minn. Ct. App. 2009). 89 Id. at In re Request for Issuance of SDS Gen. Permit MNG300000, 769 N.W.2d at

62 introducing or spreading new AIS. 91 As explained below, however, simply reducing the likelihood is not sufficient to protect Minnesota water quality standards. Consequently, MPCA may not certify VGP2 unless it first conducts the nondegradation review required by the rules. III. THE EPA PERMIT DOES NOT ASSURE THAT BALLAST WATER DISCHARGES WILL COMPLY WITH MINNESOTA WATER QUALITY STANDARDS 92 The CWA requires NPDES permits to assure compliance with water quality standards. 93 EPA s regulations reinforce the necessity that NPDES permits assure compliance with water quality standards. One regulation in particular requires permitting authorities to ensure that water quality-based effluent limitations ( WQBELs ) are developed to achieve a level of water quality that complies with all applicable water quality standards. 94 A. The permit s technology-based effluent limitations do not assure compliance, because they will not prevent invasions of aquatic invasive species Based on a flawed assessment of the best available technology economically achievable, which is required by CWA 301(b)(2)(A), 95 EPA established the International Maritime Organization s ( IMO ) proposed D-2 standards as VGP2 s technology-based effluent limitations ( TBELs ) for oceangoing vessels. 96 These TBELs set concentrations of organisms allowed in ballast water discharges, but they will only reduce, not eliminate, the threat of new introductions and new AIS. Invasive species are not like conventional pollutants. Even a small number of organisms may establish a population that grows exponentially and seriously harms the ecosystem. 97 There is no known safe concentration greater than zero at which introduced species will pose no threat to water quality standards. 98 In addition, many complex factors besides concentration affect 91 See Draft Certification at pp. 7, The full comments of NWF and NRDC on the draft VGP2 are in Exhibit 36 and incorporated here by this reference U.S.C. 1342(a)(2) (EPA shall prescribe conditions for... [NPDES] permits to assure compliance with the requirements of CWA 402(a)(1).) (emphasis added). One of the requirements of 402(a)(1) is that permitted discharges must comply with CWA 301. Section 301, in turn, requires WQBELs C.F.R (d)(1)(vii)(A). Another regulation prohibits the issuance of an NPDES permit when imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected states. 40 C F.R 122.4(d) (emphasis added). Affected states necessarily include the water quality standards of the state issuing the permit U.S.C. 1311(b)(2)(A). 96 Draft VGP See Natl. Academy of Sciences, Committee on Assessing Numeric Limits for Living Organisms in Ballast Water, Assessing the Relationship between Propagule Pressure and Invasion Risk in Ballast Water 57 (2011) (Ex. 37) [hereinafter NAS REPORT]: The importance of [initial habitat compatibility and propagule retention] underscore the relative role of inoculum density: very low inocula that match these two scenarios... could lead to highly successful invasions. Thus, one female crab with stored sperm introduced into a lagoon with highly restricted tidal exchange could produce an initial and even dense first-generation population of crabs that could then interbreed, and eventually exit the site that had acted as an innoculator. 98 Id. at 1: 15

63 whether an introduced species can establish itself. 99 Thus, any method that attempts to predict invasion outcomes based upon only one factor in the multi-dimensional world of the invasion process is likely to suffer from a high level of uncertainty. 100 The IMO standards, therefore, will not protect water quality standards. Nor will requiring oceangoing vessels to perform ballast water exchange or saltwater flushing in addition to meeting the IMO standards. 101 EPA pointed to no evidence that this will effectively eliminate the risk of further harmful species invasions and thus ensure that state water quality standards are fully and meaningfully protected. Rather, the best that EPA could claim for this approach is that it would add another measure of protection against invasive species. 102 While that finding provides a strong rationale for this requirement being adopted as a TBEL, the mere fact that such a requirement represents another step in the right direction does not mean that this provision is sufficient to assure compliance with water quality standards. With respect to lakers, VGP2 requires such vessels to assess sediment accumulations and remove sediment if necessary (without specifying when removal is necessary); minimize ballast water taken dockside; and once a year assure that sea chest screens are fully intact. 103 EPA made no claim that these management practices would prevent AIS. Rather, EPA merely said that maintaining sea chest screens will reduce the threat of dispersing AIS within the Great Lakes. 104 Both oceangoing vessels and lakers must comply with another set of management practices. 105 These practices are designed not to prevent AIS, but only to reduce the number of With regard to [evaluating the risk of successful establishment of new aquatic nonindigenous species associated with a variety of ballast water discharge limits that have been used or suggested by the international community and/or domestic regulatory agencies]... the available methods for determining a numeric discharge standard for ballast water are limited by a profound lack of data and information to develop and validate models of the risk release relationship. Therefore, it was not possible with any certainty to determine the risk of nonindigenous species establishment under existing discharge limits. See Cal. State Lands Comm n, Report on Performance Standards for Ballast Water Discharges in California Waters at 19 (2006), available at ( The [uncertain] dose-response curve does include a single known point: zero exposure to [AIS] would present no invasion risk. Based on this logic, the only potential standard that is unarguably biologically protective would be zero viable organism discharge. ) (Ex. 38). 99 NAS REPORT at 4 ( while inoculum density is a key component, it is but one of scores of variables that can and do influence invasion outcome ); 47 ( These factors include the identity (taxonomic composition), sources, and history of the propagules, and their abundance (total number of organisms), quality, and frequency of delivery. Further influencing the outcome of propagule release is a host of factors that include both species traits and the recipient region s environmental traits. ). 100 Id. at Draft VGP (Ex. 39). 102 Draft Fact Sheet at 126 (Ex. 40). 103 Draft VGP Draft Fact Sheet at Draft VGP

64 living organisms taken up in, and later discharged in, ballast water or to ensure that such discharges do not occur in known sensitive areas. 106 B. The permit s water quality-based effluent limitation does not assure compliance, because it is not really a water quality-based effluent limitation and it is not practically enforceable Even EPA admitted that ballast water discharges meeting VGP2 TBELs have a reasonable potential to cause or contribute to an exceedance of water quality standards. 107 Therefore, pursuant to CWA 301(b)(1)(C), 33 U.S.C. 1311(b)(1)(C), and EPA s regulation at 40 C.F.R (d)(1), which require effluent limitations sufficiently stringent to meet water quality standards, EPA included in VGP2 a limitation applicable to all vessels, which the agency described as a water quality-based effluent limitation. Because a reproducing population of nonindigenous organisms can be established by the introduction of a few individuals, any WQBEL must achieve complete prevention. 108 Further, EPA is not allowed to consider economic or technological feasibility when deciding which WQBELs are necessary to protect water quality standards under the CWA. 109 VGP2 s purported WQBEL, however, is merely a general requirement that discharge[s] must be controlled as necessary to meet applicable water quality standards in the receiving waterbody or another waterbody impacted by... discharges. 110 Significantly, EPA did not find that the WQBEL will assure compliance with water quality standards, as it is required to do. 111 Instead, claiming without justification that a numeric WQBEL is infeasible, 112 EPA merely stated that it expects the WQBEL to be as stringent as necessary to achieve water quality standards. 113 EPA offered no reasoned analysis whatsoever in support of its expectation that the WQBEL will protect designated or existing uses. In fact, the WQBEL is nothing more than a restatement of the CWA s requirement that water quality standards must be met, which the operator of a vessel could not possibly determine when the discharge occurs and which neither EPA nor anyone else could possibly enforce, either when the discharge occurs or afterwards. 106 Draft Fact Sheet at Id. at See Anthony Ricciardi & Hugh J. MacIsaac, Evaluating the Effectiveness of Ballast Water Exchange Policy in the Great Lakes, 18 ECOLOGICAL APPLICATIONS 1321, 1322 (2008) (Ex. 41). 109 See 33 U.S.C. 1311(b)(1)(C); 40 C.F.R (d)(1); see also Defenders of Wildlife v. Browner, 191 F.3d 1159, 1163 (9th Cir. 1999) (noting that, under CWA, permitting authority is under specific obligation to require that level of effluent control which is needed to implement existing water quality standards without regard to the limits of practicability ) (emphasis added) (internal citations omitted); In re Moscow, 10 E.A.D. 135, NPDES Appeal 00-10, 2001 WL , at *24 (E.A.B. July 27, 2001) ( [S]ection 301(b)(1)(C) of the CWA requires unequivocal compliance with applicable water quality standards, and does not recognize an exception for cost or technological infeasibility. ). 110 Draft VGP U.S.C. 1342(a)(2) (EPA shall prescribe conditions to assure compliance with water quality standards). 112 Draft VGP Fact Sheet at Draft VGP Fact Sheet at

65 When a vessel discharges ballast water, neither the operator nor anyone else could possibly know whether the discharge contains any new non-indigenous species. Even if the operator had the capability to thoroughly examine the vessel s ballast water to determine whether it contains any new non-indigenous species, the operator could not possibly predict at the time of discharge whether any such species will establish a reproducing population that would violate water quality standards. The identification of invasive species might take years, as it did, for example, in the case of the zebra mussel. 114 Years later, neither EPA nor anyone else could trace the invasive species to a particular vessel, let alone to a particular discharge. The WQBEL is thus contrary to EPA s own guidance for writing NPDES permits, which states as follows: Each permit must be written clearly and unambiguously so that compliance can be tracked effectively and the permit can be enforced if violations occur. 115 C. The permit improperly exempts certain vessels Without any legal justification, VGP2 exempts vessels travelling short distances. For example, the permit exempts vessels that [o]perate exclusively in one Coast Guard Captain of the Port (COTP) Zone or that do not travel more than 10 nm and cross no physical barriers or obstructions. 116 This exemption is overly broad. The Sault Ste. Marie COTP Zone, for example, includes all of Lake Superior and part of northern Lakes Michigan and Huron. 117 Vessels traveling within a COTP may spread invasive species to previously uninfested areas. In addition, VGP2 does not apply to vessels with a capacity of less than 8 cubic meters of ballast water. 118 A vessel may introduce or spread invasive organisms regardless of whether it can carry more or less than eight cubic meters of ballast water. Similarly, a categorical exemption for unmanned barges 119 is inappropriate. D. The permit s monitoring and reporting requirements are insufficient because they are not practically enforceable The monitoring and reporting requirements included in VGP2 are insufficient because they will not assure compliance with water quality standards under the CWA. 120 Even MPCA 114 Jeffrey A. Crooks, Lag times and exotic species: the ecology and management of biological invasions in slowmotion, 12 ECOSCIENCE 316, 317 (Table I) (2005) (Ex. 42). 115 U.S. Environmental Protection Agency, NPDES Permit Writers Manual, (EPA-833-K , 2010) [hereinafter NPDES Permit Writers Manual ]. 116 U.S. EPA, Proposed 2013 Vessel General Permit 36 (2011) C.F.R (a). 118 U.S. EPA, Draft Fact Sheet 120 (2011). 119 Id. at See, e.g., NPDES PERMIT WRITERS MANUAL at ( Monitoring is performed to determine compliance with effluent limitations established in NPDES permits... [and] establish a basis for enforcement actions. ). 18

66 and the Minnesota Department of Natural Resources expressed concern that VGP2 s monitoring requirements are insufficient to assure compliance with water quality standards. 121 First, VGP2 only requires vessels to monitor ballast water functionality and compliance with the numeric limitations on two biological indicator organisms, rather than compliance with the numeric limitations on organisms in ballast water discharge. 122 EPA claims that the monitoring requirements are inapplicable to numeric limitations, due to the practical constraints on monitoring living organisms in ballast water discharge. 123 EPA bases its determination on 40 C.F.R (i)(1)(i), which states that, to assure compliance with permit limitations, each NPDES permit s shall include... when applicable... requirements to monitor... [t]he mass (or other measurement stated in the permit) for each pollutant limited in the permit. EPA s interpretation of when applicable to mean that monitoring is not required when there are practical constraints to monitoring is both unreasonable and inconsistent with the purpose of monitoring, which is to require that NPDES permits assure compliance with effluent limitations. 124 In particular, this interpretation renders any numeric limitations on organisms meaningless, because they will not be enforced under VGP2. Similarly, EPA s failure to require operators to report the results of monitoring more than once a year is insufficient to assure compliance. 125 This lax standard is especially unreasonable in light of the fact that operators are already required to monitor system functionality at least once per month, 126 and [m]any ballast water treatment system manufacturers require that the BWTS monitoring and recordkeeping are operated continuously to assure the system is functioning as designed. 127 Requiring operators to report the results of monitoring at least once per month therefore does not impose an unreasonable burden in light of the consequences of noncompliance. Further, such a requirement would allow regulatory bodies or citizens to take timely action against operators who fail to comply with permit requirements. IV. MPCA S CERTIFICATION DOES NOT ASSURE COMPLIANCE WITH WATER QUALITY STANDARDS. MPCA s certification violates federal and state law, both because MPCA s standard for certification is inconsistent with the federal standard in 401, and because the certification will not assure that discharges authorized by VGP2 will comply with Minnesota water quality standards. To assure ballast water discharges will comply with state water quality standards, MPCA should have developed and included WQBELs in its certification of VGP Letter from Rebecca J. Flood, Assistant Commissioner, MPCA, & Mary P. McConnell, Assistant Commissioner, Minnesota Department of Natural Resources, to Ryan Albert, Environmental Scientist, Water Permits Division, U.S. EPA 2 (Feb. 21, 2012). 122 See Draft VGP , Draft VGP Fact Sheet at 83 n.18 ( [L]iving organism monitoring of vessel ballast water discharges, by mass or any other measure, is not required in this permit due to practical constraints on the ability to collect and analyze the volumes of ballast water necessary to directly detect and quantify such organisms at the levels of concern. Such requirements, therefore, are not applicable to this situation and are not included in today s permit. ). 124 See 33 U.S.C. 1342(a)(2). 125 See Draft VGP Draft VGP Draft VGP Fact Sheet at

67 A. The certification only requires vessels to meet the unprotective IMO D-2 standards in EPA s permit Condition #1 of the certification imposes biological performance standards, which are identical to the VGP s IMO D-2 standards. 128 As discussed previously, these standards are insufficient to prevent AIS. B. The certification s failure to require vessels to meet a WQBEL violates federal and state law In Condition #2 of the certification, MPCA states that it will not require compliance with a WQBEL because the agency is unable to conclusively determine a numeric standard which would definitively protect water quality and an unaltered species composition of the ecosystem. 129 Nothing in the Clean Water Act or Minnesota s water pollution control laws or rules relieve MPCA of the obligation to require compliance with a WQBEL for that reason. As explained above, MPCA is obligated to include conditions in its certification necessary to achieve compliance with state water quality standards, conditions imposing WQBELs most especially. 130 If, indeed, MPCA is unable to establish a WQBEL that will assure compliance with Minnesota water quality standards, the agency may not certify VGP2. C. The certification s requirements that oceangoing vessels perform ballast water exchange or saltwater flushing will not prevent AIS Conditions ##3 and 4 require oceangoing vessels to perform open-ocean ballast water exchange or saltwater flushing before discharging ballast water. 131 Although this may improve the performance of ballast water treatment systems in Minnesota waters, no evidence establishes that combining ballast water treatment with ballast water exchange or saltwater flushing will effectively eliminate the risk of further harmful species invasions and thus ensure that state water quality standards are fully and meaningfully protected. All EPA could claim for this approach in VGP2 is that it would add another measure of protection against invasive species. 132 Thus, contrary to MPCA s assertion, these conditions are not an interim WQBEL. 133 D. The certification s emergency provisions for high-risk ballast water discharges will not prevent AIS Condition #5 allows MPCA to prohibit discharge, require a discharge to occur in a particular area, or require emergency treatment of any high risk ballast water proposed to be discharged in Minnesota waters. 134 Although MPCA s goal to manage high-risk discharges is 128 Compare Draft Certification pp. 2-3 with Draft VGP Actually, the certification is less protective than the VGP, because it does not set a biological treatment performance standard for Toxicogenic Vibrio cholera. 129 Draft Certification p See also Minn. R , Subp. 8 (requiring MPCA to establish WQBELs where necessary to maintain water quality standards). 131 Draft Certification at pp Draft Fact Sheet at Draft Certification at pp. 7, Id. at pp. 9 (Condition #5(a)). 20

68 commendable, nothing in this condition establishes how the agency would become aware of proposals to carry out such discharges. In addition, Condition #5 does not even purport to assure compliance with Minnesota water quality standards, except to the extent that the agency exercises discretion, without any apparent provision for public review, to prohibit the discharge altogether. It allows MPCA to authorize the use of BWTS identified as promising technology by EPA, the U.S. Coast Guard, neighboring states, or a U.S. ballast water testing facility. 135 But it does not describe what level of protection such BWTS will provide to water quality standards. As a result, Condition #5 does not assure compliance with Minnesota water quality standards. E. The certification s best management practices for lakers will not prevent AIS Condition #6, which requires lakers to follow certain best management practices and recommends that they follow others, is salutary to the extent it reduces the number of organisms discharged with ballast water. However, as explained above, simply reducing the number is no guarantee that aquatic non-indigenous and invasive species new to the area of discharge will not establish themselves there as AIS. F. The certification failed to require the necessary monitoring The certification does not require monitoring of compliance with the conditions in the Minnesota SDS permit for ballast water discharges, incorporated by reference in Condition # In particular, the SDS permit prohibits discharges of ballast water that violate water quality standards. 137 This prohibition is no more practically enforceable than VGP2 s purported WQBEL. Moreover, MPCA did not establish any requirement to monitor compliance with the prohibition. In the absence of such a monitoring requirement, neither MPCA nor citizens can track compliance with the prohibition or enforce violations of the prohibition pursuant to CWA 505. Because Condition #1 is not practically enforceable, it is defective. In addition, the certification s Condition #7 does not cure the deficiencies in VGP2 s monitoring requirements, described above. Even if Condition #7 s monitoring requirements were adequate to assure compliance with the IMO D-2 standards, those standards are insufficient to prevent AIS. Further, the monitoring required of vessels not required to meet the IMO D-2 standards is only to identify the potential spread of AIS already in the Great Lakes, 138 not to stop their spread. MPCA must require vessel operators to monitor all classes of organisms in ballast water discharge not just those organisms the EPA identified as feasible given practical constraints in order to assure compliance with the IMO D-2 standards and any numeric WQBELs added by MPCA. In addition, Minnesota should require operators to report the results of their monitoring more than once a year. Requiring operators to report the results of monitoring at least once per 135 Id. at pp. 10 (Condition #5(e)). 136 Id. at p MPCA, State Disposal System Permit MNG300000, Ballast Water Discharge General Permit (Sep. 24, 2008) p. 2 (Part 1.2.b.). 138 Draft Certification at pp

69 month does not impose an unreasonable burden in light of the consequences of noncompliance. Minnesota should also require operators to report any discharge or uptake incident contrary to the terms of the VGP2 within twenty-four hours of the incident. This will allow the state to take immediate actions when water quality is threatened by discharges that violate the terms of the VGP2. Conclusion As we have shown, neither VGP2 nor MPCA s draft certification assures compliance with the designated and existing uses of Minnesota waters. Since compliance with Minnesota water quality standards cannot be assured, MPCA should revise the draft certification as we have urged. Sincerely, Thank you for the opportunity to submit these comments. Gary Botzek Executive Director Minnesota Conservation Federation Joel Brammeier President & CEO Alliance for the Great Lakes Thomas Cmar Midwest Program Attorney Natural Resources Defense Council Jill Crafton Chair Great Lakes Committee of Izaak Walton League of America Larry Dolphin President Minnesota Division Izaak Walton League of America Neil Kagan Senior Counsel National Wildlife Federation John P. Lenczewski Executive Director Minnesota Trout Unlimited 22

70 Scott Strand Executive Director Minnesota Center for Environmental Advocacy Deanna White State Director Clean Water Action Minnesota 23

71 May 27, 2012 Mr. John Linc Stine, Commissioner Minnesota Pollution Control Agency 520 Lafayette Road North St. Paul, MN Re: Minnesota Section 401 Certification for the 2013 Vessel Discharge General Permit Dear Commissioner Stine and PCA Citizens Board, I am writing on behalf of the Iron Mining Association of Minnesota in regard to the regulation of ballast water on the Great Lakes. The Iron Mining Association is made up of the iron ore mines of Minnesota and 175 companies and their employees who count on supplying products and services to the mines for their livelihood. The iron mining companies and supporting companies are responsible for 10,000 jobs, $100 million annually in taxes and royalties making up 34% of the region s gross regional product according to a University of Minnesota Duluth Labovitz School of Economics study. The leadership of you and the PCA Citizen s Board is needed to ensure the state accepts the Environmental Protection Agency s (EPA) proposed vessel general permit containing national best management practices for Lakers as designed by U. S. Coast Guard Final Rule regulations for Great Lakes vessels. More stringent rules would be detrimental to the economy while not adding significant environmental benefits. It is not just the iron ore mines that would be adversely affected the people who work for more than 175 companies who supply products and services to the mines would also be adversely affected. The people who live and make their livelihoods here in NE Minnesota enjoy and want to protect the environment they live in. However, there is no advantage to the State of Minnesota superseding the federal standards with more onerous and unachievable ballast water requirements. This is in light of adjoining Great Lake States not adopting more stringent rules and no technology available for Lakers. We urge the MPCA to adopt the position taken by the federal regulatory agencies, which share your responsibility for protecting the waters of the Great Lakes. Thank you for your consideration of this request. Please do not hesitate to contact me if you have additional questions. Respectfully, Craig Pagel Iron Mining Association of Minnesota 324 West Superior Street Suite 502 Duluth, Minnesota Phone (218)

72 INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS Office of the General Vice President Eastern Territory Executive Plaza III 135 Merchant Street, Suite 265 Cincinnati, OH TEL (513) FAX (513) Kate Frantz Pollution Control Specialist Industrial Division 520 Lafayette Road North St. Paul, MN Dear Ms. Frantz: I am writing you on behalf of the Eastern Territory International Association of Machinists and Aerospace Workers (IAMAW) and Seaway Task Force Coalition (STFC). The IAMAW represents many thousands of working families who are directly and indirectly affected by the shipping and shipbuilding industries throughout the Great Lakes region of the U.S. and Canada. The STFC is an IAMAW initiative to promote economic and job growth through the preservation and expansion of the US and Canadian Shipbuilding, Shipping and related industries, by optimizing the use of the Great Lakes shipping routes, and to secure funding and political support. According to the October 2011 Martin Associates Report the economic impact from Great Lakes Shipping Industry realized by the state of Minnesota was: Economic Contribution Total Employment Personal Income Local Purchases Total Taxes Paid $ 1.3 Billion 6,300 Jobs $ 440 Million $ 114 Million $ 126 Million We also agree and support the position of Lake Carriers Association on the 401 Certification regulations on Ballast Water Discharge in the attached file and urge that: Minnesota harmonize its 401 certification and SDS permits with the IMO and Coast Guard discharge standard and schedule and the EPA VGP2 In addition to the economic impact, the following points further support our position: 1. There are no Ballast Water Management Systems presently available for installation onboard Lakers and another critical factor to consider is that Lakers ballast is but one of many means of introducing and spreading ANS. The U.S. Geological Survey has identified 64 invasive species in the Great Lakes, and ballast is but one. 2. At the federal level, both agencies which have jurisdiction over ballast water discharges the U.S. EPA and the Coast Guard have determined that there are presently no ballast water management systems available which can be installed and operate satisfactorily on Lakers. The states of Wisconsin, Ohio, New York and Michigan have all reached the same conclusion. In fact, none of the Great Lakes states have included in their draft 401 Certifications or their state permits or regulations any requirement for the installation of ballast water management systems on board Lakers.

73 3. With the publication of the Coast Guard Final Rule and the draft EPA VGP2, the federal government has established ballast water regulations which are: environmentally protective of the fragile Great Lakes ecosystem; are feasible and practicable thus ensuring widespread compliance; and are economically achievable for all segments of the maritime industry. The state of Minnesota and the MPCA has long stated their preference for federal, environmentally protective standards over a patchwork of regional or state regulations. Therefore, Minnesota should either harmonize its 401 Certification and SDS Permit to reflect the national standards, or withdraw them. 4. There is presently no ballast water management systems (BWMS) which are capable of being installed Great Lakes vessels (commonly referred to as Lakers). This position is not just the opinion of the Canadian and Laker industries, but is supported by numerous independent studies initiated by the U.S. Coast Guard and EPA. Both agencies acknowledged this fact and exempted Lakers from their Final Rule and Draft VGP2 respectively. Additionally, the states of Ohio, Wisconsin, New York and Michigan have all concluded that there are no systems capable of treating the high volumes and flow rates common to Lakers given the physical constraints of our vessel layouts and operating profiles. 5. We strongly concur with MPCA s determination that a Water Quality Based Effluent Limitation (WQBEL) cannot be established at this time. This determination is supported by numerous studies, including the National Research Council of the National Academies of Science report on ballast water which was funded jointly by the EPA and Coast Guard 6. At various public meetings, and in formal comments to administrative dockets, Minnesota has stated its preference for the adoption of a strong federal standard which is environmentally protective for Minnesota s state waters. Lacking such federal guidance, MPCA initiated the General State Disposal System for ballast water discharges in Since that time, the Coast Guard has published its Final Rule establishing a protective and achievable ballast water discharge standard, an implementation schedule which is reasonable, yet aggressive, and a process for Type Approving Ballast Water Management Systems to ensure they will operate effectively in all environments, including the Great Lakes. 7. Currently, there are no BWMS that can accommodate Lakers operational requirements. Nor do we expect any will be available during the term of VGP2. Both the Coast Guard and EPA have positively stated that when ballast water treatment systems become available for use on Lakers, the Federal agencies will draft regulations to require their use. We respectfully request your support to ensure that Minnesota adopts the federal standards concurrent with the IMO and Coast Guard discharge standard and schedule and the EPA VGP2. Sincerely, Edward J. Kuss Eastern Territory Seaway Task Force Coalition Coordinator IAMAW ekuss@iamaw.org cc: GVP Lynn D. Tucker Jr. COS Brian Bryant

74

75

76 May 28, 2012 Kate Frantz SP- 5 Industrial Division Minnesota Pollution Control Agency 520 Lafayette Road North St. Paul, Minnesota (via to: kate.frantz@state.mn.us) Dear Ms. Frantz: The American Great Lakes Ports Association represents the public port authorities on the U.S. side of the Great Lakes. Each of our member port agencies is a division of state or local government, or an independent agency created by state statute. As a group, and individually, Great Lakes ports work to foster maritime commerce in our region and economic development in their communities. We appreciate this opportunity to comment on the Minnesota Pollution Control Agency's (MPCA) Draft Conditional Section 401 Certification for the U.S. Environmental Protection Agency's Vessel General Permit (VGP). Once finalized, this permit will replace the current VGP, which expires on December 19, While neither the EPA nor the MPCA seek to regulate ports and marine terminals, the VGP and MPCA's Section 401 Certification do impact the vessel operators who serve our communities. These transportation companies engage in the movement of freight and play a critical role in the economies of Great Lakes cities, states, and the region as a whole. In 2010, our organization partnered with a number of other stakeholders to produce the first comprehensive economic impact analysis of the entire bi- national Great Lakes - Seaway navigation system. The study concluded that Great Lakes navigation supports more than 227,000 jobs in the United States and Canada, generating $33.5 billion in business revenue, and contributing $4.5 billion in federal, state/provincial and local taxes. The report further demonstrated that Great Lakes maritime commerce specifically supports 6200 jobs in Minnesota. We have attached a copy of the full study and ask that it be included in the file as supporting material establishing a record of the economic contribution of the Great Lakes maritime industry to Minnesota th Street NW Suite 700 Washington, DC Tel: Fax:

77 It is important for MPCA to understand that its regulatory actions have far reaching regional impact. Unlike coastal shipping, the Great Lakes navigation system is a network of interconnected ports, each dependent on the other. At the heart of this network is the Port of Duluth/Superior, the busiest port on the Great Lakes. Among other things, MPCA's decisions will impact electricity generation in Detroit, steel production in Cleveland and oil sands development in Alberta. In light of this regional impact, our organization has a strong interest in MPCA's actions. Ballast Water While the VGP covers more than two- dozen different vessel discharges, MPCA's Draft Conditional Section 401 Certification focuses on ballast water management. Ballast water discharges have been identified as one of the primary vectors by which non- native species have been introduced into the Great Lakes. Absent natural predators, these organisms can reproduce quickly, displacing native fish and plant life. The shipping industry acknowledges the role it plays in moving organisms around the globe and is committed to taking steps to minimize and eventually eliminate the problem. Our organization supported enactment of the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990, and the National Invasive Species Act of Together these laws require ocean- going vessel operators to exchange their ballast water at sea prior to entering U.S. ports. We also supported efforts by the St. Lawrence Seaway Development Corporation, the St. Lawrence Seaway Management Corporation, the U.S. Coast Guard and Transport Canada to require all ocean- going vessels entering the St. Lawrence Seaway to conduct saltwater flushing of ballast tanks regardless of whether they contain ballast water. Ballast exchange and saltwater flushing are management practices that have been shown to reduce the number of viable organisms in ships' ballast tanks. Implemented in 2006, these requirements represent the most stringent ballast water management regime in the world. Today, every ship entering the Seaway from overseas is stopped, boarded and inspected to ensure compliance. While these management practices are important interim measures for the Great Lakes- Seaway system, we believe the best long- term solution is installation of ballast water treatment systems onboard ocean- going ships. In 2004, the International Maritime Organization (IMO), developed a global agreement requiring all ship owners to install environmental technology to clean or treat ballast water to a specific water quality standard to prevent the movement of species. The IMO is the maritime arm of the United Nations and coordinates international shipping policy. Our organization supports these international requirements. State Regulation of Ballast Water For more than 20 years, stakeholders have pleaded for strong federal leadership on the ballast water problem. Such leadership has been elusive. In its absence, state governments have stepped into the vacuum. Regrettably, their actions have further confused the regulatory landscape. The resulting chaos has delayed deployment of ballast 2

78 water treatment systems, delayed environmental protection and created an uncertain business climate in the maritime sector. We do not believe it makes sense for individual states to regulate interstate and international commerce - a role specifically reserved for the federal government by the U.S. Constitution. Since 2008 a state- by- state patchwork of inconsistent and conflicting ballast rules has evolved and is hurting the economy. At the same time, state ballast water discharge rules do nothing to protect the environment. Aquatic invasive species are just that - invasive. They respect no political boundary and migrate freely from state- to- state. Minnesota, nor any other state, is in a position to unilaterally protect the Great Lakes ecosystem by regulating ballast water discharges. Only the federal government can effectively serve this role. For this reason, we were pleased when the U.S. Coast Guard issued the first national ballast water treatment regulations last March. These rules will require vessel owners to install equipment on ships to clean and treat ballast water prior to discharge. The EPA has proposed similar rules to take effect in While federal leadership had been missing, that is no longer the case. Two federal agencies have now put forth robust regulatory programs and have the infrastructure to support and enforce those programs. In this context, we were dismayed to learn that MPCA wished to continue its own regulatory program for ballast water discharges. In light of the new federal regulations, this would have been a reasonable time for the State of Minnesota to defer to federal regulators by withdrawing state rules. Specific Recommendations MPCA grants its Section 401 certification based on a number of conditions. We would like to comment on several of those conditions. Condition 1: Compliance with Minnesota SDS permit for ballast water The condition requires compliance with the State of Minnesota's existing State Disposal System (SDS) Permit for ballast water discharges. While the SDS permit is not under review at this time, by making its requirements a condition of certification, we believe the MPCA must consider public comments on the underlying SDS permit. The SDS permit requirements are problematic and we believe most vessel operators will be unable to comply with them. Specifically, the following issues are of concern: Regulation of Lakers The SDS permit seeks to apply ballast water treatment requirements to vessels that trade exclusively within the Great Lakes. Known as "Lakers," these vessels present no risk of introducing aquatic invasive species into the Great Lakes. Because of their size and short voyages, these vessels have been designed to load and unload cargo quickly. Since ballast compensates for cargo weight, the 3

79 ballasting systems of these ships are unique, featuring multiple pumping systems and high flow rates. Retrofitting such vessels will present unworkable engineering and cost issues as a single vessel may require numerous ballast water treatment systems. In light of the minor (if any) risk presented by Laker vessels, and the high cost of compliance, we ask that MPCA reexamine the wisdom of including Laker vessels in the SDS permit requirements. Implementation Timeline for Existing Vessels The SDS permit also establishes an unrealistic timeline for compliance. In summary, existing vessels must be retrofit with ballast water treatment systems by January 1, 2016; new vessels must install systems immediately. While the timeline is consistent with the IMO convention, that timeline is no longer realistic. It is important to note that the IMO convention was finalized in At that time the deadlines for action were well into the future and appeared reasonable. This is no longer the case. There are certain realities that vessel operators will confront as they work to install ballast water treatment equipment on new and existing vessels. Most equipment vendors will likely seek so- called "type approval" from the U.S. Coast Guard. The Coast Guard type approval process will not only evaluate environmental efficacy, but will also determine if the equipment is safe and reliable for operation on ships. Indeed, it is our view that vessel operators will be reluctant to purchase and install ballast water treatment equipment that has not received U.S. Coast Guard approval. The Coast Guard is only now establishing a type approval program for ballast water treatment systems. Once established, it will take additional time for vendors to move products through the evaluation process. Experts have estimated that the type approval process for ballast water treatment systems will require months. Once type approved, the vendor will then have to mass produce the approved product and deploy a global installation and service capability. Finally, vessel operators will have to wait for shipyard availability for installation to take place. Based on these "timeline realities" vessel operators will have difficulty meeting the January 1, 2016 deadline for retrofit of existing ships. Implementation Timeline for New Vessels It will simply be impossible for new vessels to comply with Minnesota rules. Because no vendor currently sells a Coast Guard approved ballast water treatment system, MPCA is effectively forcing vessel operators to purchase systems for new ships that are of uncertain legitimacy from the perspective of the U.S. government. While a number of systems have been approved by 4

80 foreign administrations, the Coast Guard has made clear that it will not accept foreign approved systems unless the manufacturer later seeks and is granted type approval by the Coast Guard. This scenario places unreasonable risk on the vessel operator, who is effectively being forced by MPCA to purchase equipment (at considerable expense) prior to knowing whether that equipment will ultimately be acceptable to the U.S. government. To avoid this risk, vessel operators will be motivated to deploy new vessels in other markets. Ironically, MPCA's SDS permit will discourage vessel operators from bringing new vessels into Minnesota ports. New ships are typically more efficient, consume less fuel and emit fewer pollutants. These are the very ships that public policy should encourage. For this reason, we urge MPCA to reconsider its compliance deadline for new vessels and adjust it to better conform to a realistic timeline. In light of the issues raised above, we urge MPCA to reopen the SDS permit for modification as soon as possible and not wait until 2013, as is currently planned. Condition 4: Exchange and flushing for voyages originating beyond the EEZ We support MPCA's proposal to continue ballast water exchange as a management practice (for vessels that operate outside the EEZ) in conjunction with the installation of ballast water management systems. While there is no current research quantifying the benefits of ballast exchange plus treatment, the two approaches combined may lead to a discharge water quality that exceeds the IMO standard. A number of Great Lakes states are understandably pushing for the most protective standard possible. Ballast water exchange plus treatment may offer an approach that moves another step toward that goal. Thank you for considering our views. Sincerely, Steven A. Fisher Executive Director 5

81 International Maritime Environmental And Safety Associates, Inc. Via Ms. Kate Frantz SP-5 Industrial Division Minnesota Pollution Control Agency 520 Lafayette Road North St. Paul, MN SUBJECT Comments on MPCA s Draft Section 401 Conditional Water Quality Certification of the U.S. EPA s Proposed 2013 Vessel General Permit Dear Ms. Frantz: Thank you for the opportunity to comment on MPCA s Draft Section 401 Certification of the U.S. EPA s proposed 2013 Vessel General Permit (hereinafter referred to as VGP2). I recently retired from the U.S. Coast Guard where I was the Chief of the Environmental Standards Division at Coast Guard Headquarters. In that position, I was responsible for the development of the Coast Guard s Final Rule on Ballast Water Discharges which was published earlier this spring. I also assisted the EPA s Office of Water on the development of the first Vessel General Permit and the VGP2. In July, 2010 I initiated the Coast Guard s Laker feasibility study to determine if there were ballast water management systems available which were feasible for use on Lakers, boarding numerous vessels in the port of Duluth to evaluate the constraints associated with this class of vessels. During my tenure as Chief of the Environmental Standards Division, I was also the Alternate Head of Delegation to the International Maritime Organization s (IMO) Marine Environmental Protection Committee (MEPC) and participated on the Ballast Water Working Group (BWWG) at MEPC as well as the IMO Bulk Liquids and Gasses BWWG. I was one of the founding members of the Great Lakes Ballast Water Collaborative and am still an active participant on the GLBWC Executive Steering Committee. Prior to my tour at CG Headquarters, I was Commanding Officer of the Coast Guard Marine Safety Office in Duluth, MN where I also held the position of Captain of the Port and Officer in Charge Marine Inspection. When in Duluth, I attended the initial Ballast Water SDS permit public meetings. Finally, I have also spent a tour as the Supervisor of the Coast Guard Marine Safety Detachment in Massena, NY, commonly referred to as the Gateway to the Great Lakes where I conducted hundreds of Ballast Water Exams, ensuring vessels had conducted adequate ballast water exchanges prior to entering the Great Lakes. I was a marine safety officer for my entire 24 year career in the Coast Guard where I conducted literally hundreds of vessel inspections, responded to 3 major oil spills as well as thousands of minor spills, and conducted or supervised numerous vessel casualty investigations. I am presently a private consultant for several ballast water management system manufacturers, marine equipment developers and shipowners who are investigating various BWMS for installation on board their ships. IMESA, Inc. 9 Sandy Brook Drive, Durham, NH

82 International Maritime Comments on MPCA s Draft 401 Environmental And Safety Certification of the VGP2 Associates, Inc. 28 May 2012 I attended the MPCA Citizen s Board meeting on May 22, 2012 and provided some brief comments during that meeting, but wanted to expand on some of those recommendations, as well as provide some comments on the submission to the Citizens Board by the Clean Water Action Alliance. SUMMARY OF MAIN POINTS 1. MPCA should harmonize its 401 Certification with the newly published Coast Guard Final Rule for Ballast Water Discharges. The Coast Guard Final Rule and the EPA VGP2 have established an internationally recognized discharge standard that will drastically reduce the risk of AIS invasions into the waters of the United States and Great Lakes and is 1)environmentally protective; 2) feasible and practicable, thus ensuring widespread compliance; and 3) economically achievable, recognizing the unique aspects of different niche markets and trades. Direct adoption of these two regimes will ensure consistency in application and enforcement and encourage maritime industry compliance. 2. Due, in part, to a lack of definitions, the ballast water exchange (BWE) and salt water flushing requirements (Requirements 3 and 4) are confusing and don t appear to meet MPCA s intention of continuing the practice of using ballast water exchange to reduce the risk of invasions. As it is presently worded, vessels arriving into Minnesota waters from U.S. and Canadian east coast ports would not be required to conduct exchange, but vessels arriving into Minnesota waters from St. Lawrence Seaway ports might be required to conduct an oceanic exchange. Administrative and language changes to those requirements would capture the higher risk vessel voyages (such as those originating in east coast fresh water ports), while eliminating vessel voyages which present little to no risk. 3. There are presently no ballast water management systems (BWMS) capable of effective operation on the class of vessels commonly referred to as Lakers. Additionally, no BWMS will be developed during the period of VGP2 which will be type approved and will be capable of effective operation on Lakers. This conclusion is shared by the U.S. Coast Guard, the U.S. EPA and the states of Ohio, Wisconsin, New York and Michigan. To date, none of the Great Lakes states that have released their draft 401 certifications have required Lakers to install BWMS. Therefore, until there are BWMS capable of effective operation on Lakers, Minnesota should harmonize its 401 Certification with the other Great Lakes states and Federal agencies and not require BWMS to be installed on Lakers. 4. The proposed monitoring requirements particularly for those vessels not equipped with ballast water management systems are too restrictive and may not produce data capable of informing future MPCA and/or MDNR regulatory decisions nor identifying the spread of AIS. Vessel owners and shipping associations should be given the option of participating in focused, scientific experiments and studies approved by MPCA which would provide more useful data to the agency. IMESA, Inc. 9 Sandy Brook Drive, Durham, NH Page 2 of 15

83 International Maritime Comments on MPCA s Draft 401 Environmental And Safety Certification of the VGP2 Associates, Inc. 28 May HARMONIZATION WITH FEDERAL BALLAST WATER REGIMES On March 23, 2012, the U.S. Coast Guard published its Final Rule for Ballast Water Discharges and on December 8, 2011, the U.S. Environmental Protection Agency published its Draft VGP2, containing ballast water discharge and management requirements. While there are minor differences between the standards established by the two agencies due to their underlying statutory authorities, the agencies agreed on a ballast water discharge standard and timeline which will drastically reduce the risk of AIS invasions into the Great Lakes and Minnesota s waters. Representatives from the state of Minnesota and MPCA in both oral and written statements in a variety of fora have long stated their preference for an environmentally protective federal standard in lieu of a patchwork of state or regional requirements which are often inconsistent at best and conflicting at worst. With the publication of the Coast Guard s Final Rule which establishes a ballast water discharge standard that is both protective and achievable, and a timetable that is aggressive but practicable for ocean-going vessels, there is no need for states to establish supplemental requirements. As a former federal regulator responsible for the development of federal ballast water regulations, I sympathized with states who wanted the federal government to establish federal standards quickly to help stem the tide of AIS invasions. Lacking federal regulations, Minnesota appropriately initiated the General State Disposal System permitting process for ballast water discharges in As senior Coast Guard officer in Minnesota at that time, I attended several of the MPCA s public meetings and applaud the deliberate, inclusive, and thoughtful process undertaken by MPCA. In fact, the requirements adopted by MPCA in the 2008 SDS permit are very similar to the Coast Guard s Final Rule and the EPA s Draft VGP2. However, it is these seemingly minor differences that can cause significant confusion on the part of the regulated maritime industry, sometimes resulting in unintended non-compliance by ship owners and masters who must try to consolidate and comply with multiple international, federal, regional and state requirements. In my comments on the specific requirements contained in the Conditional 401 Certification, I have identified some of those conflicts and tried to provide solutions. However, in my view, the best (i.e., least confusing and complicated, while still ensuring environmental protectiveness and maximizing compliance) solution is the direct adoption of the Coast Guard s Final Rule as well as the additional existing ballast water regulations contained in 33 Code of Federal Regulations Part 151, Subparts C and D. While it may be beyond the scope of this public comment opportunity, I urge the MPCA to consider withdrawing the SDS Permits for ballast water discharges prior to its expiration in 2013 and not re-issue the permit. Since the stated purpose of the SDS Permit for ballast water discharges to fill the gap in federal regulations and permits for ballast water no longer exists with the publication of the Coast Guard Final Rule and the EPA VGP2, the SDS Permit is redundant and serves no purpose. IMESA, Inc. 9 Sandy Brook Drive, Durham, NH Page 3 of 15

84 International Maritime Comments on MPCA s Draft 401 Environmental And Safety Certification of the VGP2 Associates, Inc. 28 May BALLAST WATER EXCHANGE / SALT WATER FLUSHING REQUIREMENTS Requirement 3. BWE/Salt Water Flushing for voyages originating within the EEZ. It is my understanding that the purpose of Requirement 3 is to require vessels whose voyages originate from U.S. and Canadian east coast ports to conduct near shore ballast water exchange or salt water flushing prior to entering the Great Lakes. However, as this requirement is presently worded applying to vessels whose voyage originates from within the EEZ vessels departing from U.S. or Canadian east coast ports are not required to conduct any ballast water management. Under U.S. Law, the Exclusive Economic Zone of the U.S. is defined as all waters from the baseline out 200 nautical miles. The baseline is a line drawn along the seaward-most coast of a country. A straight line is drawn from point to point across the entrances to harbors, bays, coves and sounds and forms the border between internal waters of a country and its territorial sea. Therefore, all ports are within the internal waters. Since voyages originate within ports, there would be no voyages which originate within the EEZ. I have included language in the section which addresses specific 401 Certificate Requirements which I think will capture MPCA s intent to require near shore BWE or flushing for vessels whose voyages originate in U.S. or Canadian east coast ports. Requirement 4. BWE/Salt Water Flushing for voyages originating beyond the EEZ. Although there have been two studies which indicate the combination of ballast water exchange plus ballast water treatment may reduce the risk of introduction of high risk organisms into the Great Lakes, these studies have not involved actual field experiments, and rely exclusively on one landbased experiment and theoretical postulation. Furthermore, I do not agree that a numeric discharge standard equivalent can be assigned to a process that relies on the combination of a range of percent reduction with a bona fide numeric standard. Nonetheless, it makes intuitive sense that for the fresh water Great Lakes environment, the combination of BWE + BWT may result in a reduction in risk over treatment alone. Therefore, I understand the position of MPCA, in taking a precautionary approach to protecting the fragile ecosystem of the Great Lakes, just as the EPA did in Section of the Draft VGP2. However, the studies referenced above and in the Summary of the Basis section of Requirement 4 (footnotes 7-11) all address the potential increase in risk reduction for ballast water which originates in fresh or brackish water. There is no research to date that demonstrates that a higher degree of environmental protectiveness is achieved by exchange plus treatment when the originating water has a salinity greater than or equal to 18 parts per thousand (or PSU). This is the position that was adopted by the EPA in section of the Draft VGP2, as well as the government of Canada in BLG 15/5/7. Additionally, requiring BWE + BWT will require the ballast water treatment system to be run twice as often since the BWM Convention does not make any allowances or exceptions for mid-ocean IMESA, Inc. 9 Sandy Brook Drive, Durham, NH Page 4 of 15

85 International Maritime Comments on MPCA s Draft 401 Environmental And Safety Certification of the VGP2 Associates, Inc. 28 May 2012 exchange. Thus for a vessel transiting from Europe to the Great Lakes which uses a typical UV ballast water treatment system, the vessel would be required to: filter and UV treat on uptake in a European port; UV treat during BWE discharge; filter and UV treat during BWE uptake; and UV treat during deballasting. UV treatment systems require significant power to operate, and, when combined with increased pumping requirements would result in increased greenhouse gas, SOx and NOx emissions. To my knowledge, no one has quantified these additional environmental impacts, as well as the impacts from additional disinfection by-product and residual disinfection discharges associated with systems which use biocides. Therefore, since there is no evidence to demonstrate that BWE + BWT is effective in reducing risk of invasion for ballast water with a salinity of 18 ppt or greater, and the negative environmental impact of conducting additional treatment and exchange has not been quantified, I recommend MPCA delete this requirement from your 401 Certification and adopt the EPA s requirement for BWE + BWT only in those cases where the originating ballast water salinity is 18 ppt or less. 3. BALLAST WATER MANAGEMENT SYSTEMS FOR LAKERS There are presently no Ballast Water Management Systems available which can be installed on Lakers which will meet their unique demands. Due to their trade, Lakers must discharge cargo quickly and, therefore, must take on ballast equally quickly to avoid creating hazardous stability problems on the vessel, as well as stressing the structure of the ship. The opposite is true during cargo loading where the vessel must be able to deballast quickly as the vessel is loaded. Typical flow rates on a mid-sized Laker are in the 25,000 to 40,000 gallons per minute range, while thousand footers flow rates approach 80,000 gpm. On some of the thousand footers, there is no common ballast piping system or manifold each ballast tank has its own ballast pump and seachest for loading and discharging ballast. As a result, some of these vessels have up to 18 independent ballasting systems. Additionally, due to their operation in fresh water, Lakers do not coat (or paint) their ballast tanks. Conversely, ocean-going ships which take on salt water for ballast must coat their tanks to inhibit corrosion. All of the BWMS which are capable of treating at flow rates which approach the flow rates of the smallest Lakers use biocides to kill organisms. Most of these biocides are highly corrosive oxidizers which, if injected into the uncoated ballast tank of a Laker, would quickly cause catastrophic corrosion in the tanks. Many of the BWMS presently approved by foreign administration require up to a week holding time to allow the residual biocides to kill all organisms in the water and sediments, then to allow the residual biocides and disinfection by-products to degrade sufficiently to meet international chemical discharge requirements. These BWMS are impractical for Lakers since most of their voyages are only 2 ½ to 3 days with the longest voyages being only 5 of 6 days. In some cases voyages may be only a matter of hours. IMESA, Inc. 9 Sandy Brook Drive, Durham, NH Page 5 of 15

86 International Maritime Comments on MPCA s Draft 401 Environmental And Safety Certification of the VGP2 Associates, Inc. 28 May 2012 Due to these factors (and others), the two federal regulatory agencies with responsibility for oversight for ballast water discharges the U.S. Coast Guard and the EPA both concluded that there are no BWMS capable of operating satisfactorily on Lakers. The EPA s independent Science Advisory Board reached the same conclusion, as did the Great Lakes states of New York, Ohio, Michigan and Wisconsin. In fact, no Great Lakes states which have submitted their 401 Certification as of this date have required Lakers to meet the ballast water discharge standard or install a BWMS. Therefore, I recommend MPCA remove the requirement for Lakers to install and operate BWMS on board their vessels and to meet the ballast water discharge standard. 4. MONITORING REQUIREMENTS Monitoring requirements for vessels required to meet IMO D-2 ballast water discharge standards. I strongly agree with the need to conduct ballast water discharge monitoring for enforcement and compliance, particularly given that BWMS are relatively new technology and no long term verification protocols are presently in place. The IMO ballast water working groups are attempting to tackle this formidable problem as well. With the exception of the California protocol, the other protocols mentioned are designed for Type Approval testing and are probably more cumbersome than is necessary for annual survey monitoring. The Coast Guard is also in the process of developing enforcement and compliance monitoring, but that has yet to be finalized. Therefore, I recommend that the language in the requirement be less restrictive in terms of the exact type of required monitoring and allowing the option of other testing protocols which may be developed by the U.S., Canada, other port states, other oversight agencies, such as classification societies, academia or the vessel owners. Monitoring requirements for vessels not required to meet IMO D-2 ballast water discharge standards. I agree with MPCA s conclusion that additional data must be gathered before a WQBEL can be established. This conclusion echoes that of the National Academies of Sciences report which concluded that there was not enough data to develop a WQBEL. I also understand MPCA s desire to better understand the role Lakers and salties play in the translocation of AIS within and between the Great Lakes. However, I don t believe the monitoring protocols as proposed will generate the type of data necessary to draw scientifically based conclusions about either WQBEL s or the translocation of species. For example, given that the monitoring is required annually, a vessel may choose to conduct the sampling at the end of the navigation season when very few if any organisms are likely to be present due to the extremely cold water temperatures. The same is true at the beginning of the season. The data generated by these sampling events would not be very informative or useful. Therefore, I recommend vessel owners and associations be given the option of continuing to work with the scientific community to develop robust scientific studies which will better inform not only the MPCA, but the Great Lakes regulatory and scientific community as a whole. Such a study could be conducted in conjunction with the efforts by the Great Lakes Ballast IMESA, Inc. 9 Sandy Brook Drive, Durham, NH Page 6 of 15

87 International Maritime Comments on MPCA s Draft 401 Environmental And Safety Certification of the VGP2 Associates, Inc. 28 May 2012 Water Collaborative; U.S. and Canadian federal, provincial and state agencies; academia; and environmental non-governmental agencies. DETAILED RECOMMENDATIONS FOR SPECIFIC VGP 401 CERTIFICATION REQUIREMENTS 1.a. Table A Biological Performance Standards for Ballast Water Treatment Technology. The organism size classes differ slightly from the IMO Ballast Water Management Convention, Coast Guard Final Rule and EPA Draft VGP2. This is most likely due to an administrative error in the Coast Guard s Notice of Proposed Rulemaking which was subsequently changed in the Final Rule. To align with the aforementioned standards, the organism class sizes should be: Organisms 50 µm in minimum dimension; Organisms <50µm and 10 µm. Although this difference may seem trivial, from a legal standpoint and a type approval standpoint, consistency with federal and international standards is critical to ensure consistent enforcement and compliance testing. Additionally, it is likely that the IMO and U.S. Coast Guard will adopt an instantaneous maximum or time-weighted average as the limit type for discharges. This is due to a variety of factors, most notably that it is exceedingly difficult to conduct a ballast water discharge sample during the entire course of the ballast water discharge. Therefore, I recommend MPCA adopt the limit type and sample type which are finally adopted by the U.S. Coast Guard to ensure consistency in enforcement and prevent redundant testing at great cost to the maritime industry. 1.b. Vessels Constructed prior to January 1, For the reasons detailed previously, I do not believe there are or will be ballast water management systems (BWMS) which will be effective on lakers by the January 1, 2016 implementation date. 1.c. Vessels Constructed after January 1, According to a report completed by International Maritime Environmental and Safety Associates 1, the first U.S. Coast Guard type approved BWMS will not be available until 2 ½ to 3 ½ years from the date on which the Coast Guard finalizes its policy and programs for type approval meaning such systems will not be available until January 2015 at the earliest. Thus, requiring vessels constructed after January 1, 2012 to have BWMS on board prior to commencement of vessel operations in MN waters is an impossibility. 2. Numeric WQBEL Determination. I strongly agree with MPCA s determination that a WQBEL cannot be determined at this time due to a lack of data. This was the same conclusion that was arrived at by the National Research Council of the National Academies of Science which stated that the existing data are not sufficient to characterize a biologically meaningful relationship, much less estimate the associated uncertainty, to be able to identify with confidence the invasion probabilities associated with particular discharge standards. Despite claims by others to the 1 Report to St. Lawrence Seaway Development Corporation Regarding Ballast Water Type Approval Process and Obstacles Associated with Installation of Non-Coast Guard Type Approved Ballast Water Management Systems; Jan 4, 2012; International Maritime Environmental and Safety Associates IMESA, Inc. 9 Sandy Brook Drive, Durham, NH Page 7 of 15

88 International Maritime Comments on MPCA s Draft 401 Environmental And Safety Certification of the VGP2 Associates, Inc. 28 May 2012 contrary, there is no scientific evidence to support the establishment of any water quality based effluent limit at this time. 3. Requirement to conduct Ballast Water Exchange / Flush for voyages originating within the EEZ. As detailed above, the existing language does not appear to capture the intent of MPCA to require vessels whose voyages originate from U.S. or Canadian east coast ports to conduct a near shore exchange. Conversely, if the language is interpreted to apply to all vessels whose voyages originate from the outermost boundary of the EEZ shoreward, vessels transiting from Montreal (or other St. Lawrence Seaway / River ports) to Lake Superior would be required to exit the St. Lawrence River, conduct an exchange / flush in the Gulf of St. Lawrence, then return through the Seaway. This would add several days to the vessel s voyage resulting in needless additional greenhouse gas, SOx and NOx emissions with little or no reduction of risk of AIS introduction. Therefore, I recommend the following text for Requirement 3: Requirement The operator of any vessel covered under the VGP2 whose voyage originates from a Canadian or U.S. east coast port and which cannot practicably conduct ballast water exchange or salt water flushing in accordance with Requirement 4 of this Certification and which enters Minnesota waters shall not discharge ballast unless the following conditions are met: the vessel has conducted a ballast water exchange or flushing at least 50 nautical miles from any shore, and in water at least 200 meters in depth, resulting in a salinity level of at least 30 parts per thousand (ppt). This requirement is imposed regardless of whether the vessel is equipped with a ballast water treatment system in accordance with Section of the draft VGP2. This requirement does not apply to: a. d. remain the same Add: e. Vessels whose voyages originate in the St. Lawrence Seaway and River and the Gulf of St. Lawrence extending to the baseline of the Canadian territorial sea between the outermost point of land on Cape Breton 2 and the outermost point of land on Newfoundland 2. This proposed amendatory language would preserve the intent of MPCA to require near-shore ballast water exchange or salt-water flushing for all vessels whose voyages originate in U.S. or Canadian east coast ports. It would also ensure that those vessels whose voyages originate in the St. 2 Recommend contacting Canada Department of Fisheries and Oceans for exact location of territorial sea baseline in Cabot Strait. IMESA, Inc. 9 Sandy Brook Drive, Durham, NH Page 8 of 15

89 International Maritime Comments on MPCA s Draft 401 Environmental And Safety Certification of the VGP2 Associates, Inc. 28 May 2012 Lawrence River or Gulf of St. Lawrence and which do not pose a risk to the waters of Minnesota would not be required to extend their voyages by many days and, in all likelihood, result in a net negative impact on the environment. 4. Requirement to conduct Ballast Water Exchange / Flush for voyages originating outside the EEZ. As detailed above, if MPCA has determined, using the precautionary approach, that BWE + BWT is appropriate based on the literature cited in the Summary of the Basis, I recommend adoption of the parameters in the VGP2, Section In other words, require BWE + BWT only for those vessels whose ballast water originated from a port with a salinity of <18 PSU. 5. Emergency Control of Ballast Water discharge. It appears that this section applies only to oceangoing vessels, but it doesn t expressly state this. For example, it is not possible for most lakers to safely conduct ballast water exchange. However, paragraph 5.b. designates vessels with design limitations that prevent ballast water exchanges as high risk meaning all lakers would be high risk. I don t believe this is the intent of the requirement. Additionally, paragraph 5.c. discusses identification of alternative locations for discharge of the high risk ballast water which again, would not be applicable or appropriate for lakers. In paragraph 5.e, ballast water management systems which have already been type approved by the Coast Guard should also be included in addition to BWMS which are identified as promising technology. 6. Coverage of Lakers confined to upstream of the Welland Canal. There does not appear to be any scientific basis for the proposed designation of the Welland Canal as the delineation point for determining the geographic boundary of the Great Lakes. There are similar barriers to organism migration (i.e., the combination of locks and waterfalls) in the St. Lawrence River which would reduce the risk of intra-lake migration. Therefore, I recommend the development of a definitions section which incorporates, at a minimum, the definition of Great Lakes in 33 CFR Since this definition was adopted by the Coast Guard to better define applicability for entry conditions into the Great Lakes, a more appropriate definition would probably extend out to the entrance to the St. Lawrence River at or near Anticosti Island. Additionally, the term confined can be open to interpretation. While many lakers are capable of transiting through the Welland Canal to Lake Ontario, and are certificated by the U.S. Coast Guard or Transport Canada to do so, they normally do not. Therefore, I recommend the term confined be changed to lakers operating exclusively in the Great Lakes to avoid confusion. Additionally, whether it is included in this document or a MPCA policy, allowances must be made for new lakers which are built overseas, but are intended for use exclusively in the Great Lakes. 7. Monitoring Requirements. As detailed above, while I applaud the MPCA s determination to require monitoring, I believe the requirements are too rigid, do not allow for flexibility in gathering data, and may not generate the data upon which MPCA can make informed decisions for later rulemakings or permits. Additionally, it appears that the requirement is broken into 7.a. and 7.b. to IMESA, Inc. 9 Sandy Brook Drive, Durham, NH Page 9 of 15

90 International Maritime Comments on MPCA s Draft 401 Environmental And Safety Certification of the VGP2 Associates, Inc. 28 May 2012 capture vessels which have installed BWMS and those which don t. However, the requirement is written such that the applicability is for vessels which are required to meet the IMO D-2 standard and those which are not required to meet the IMO D-2 standard. It is unclear which timetable is applicable here (i.e., the timetable in the BWM Convention or MPCA 401 Certification). Additionally, 7.b. requires vessels not required to meet the D-2 Standard (for whatever reason, either non-applicability or timeframe) to install sampling equipment, however, for non-lakers, no actual sampling or monitoring is required. Therefore, I recommend Requirement 7 be broken down into three sections: 7.a. applies to vessels which have installed BWMS in accordance with MPCA, IMO BWM Convention or U.S. Coast Guard requirements, including experimental (STEP) BWMS; 7.b. applies to oceangoing vessels which do not have installed BWMS; and 7.c. applies to lakers. General Comments. As mentioned above, the lack of a definitions section can lead to significant confusion and misinterpretation which could, in turn, lead to unintentional non-compliance by the shipping industry. As with the general body of the permit, I urge MPCA to directly adopt 33 Code of Federal Regulations Part 151, Subparts C and D which contain the Coast Guard s new and existing ballast water regulations. CLARIFICATION OF POINTS MADE DURING CITIZENS BOARD PUBLIC MEETING As I stated during oral comments at the Board meeting, it is important to understand that any ballast water discharge numeric standard does not represent a percentage or log reduction in organisms or organism concentrations. For example, various studies have demonstrated that the organism concentration (organisms per cubic meter) can exceed 50,000 in untreated ballast water. Even a 99.9% reduction in organisms would still result in an exceedance of the IMO D-2 standard. However, in many cases, the organism concentration is less than 1,000 organisms/m 3 in which case a 99% reduction would meet the IMO D-2 standard. By establishing a numeric standard, the organism concentration in the source water becomes moot since, regardless of the source water, the discharged water must meet the numeric standard. Additionally, I believe there was some confusion regarding a comparison between the Minnesota Draft 401 Certification and the Michigan Draft 401 Certification. There are significant differences between the two. First, Michigan s Certification does not apply to Lakers, only oceangoing vessels. Second, the Michigan Certification adopts a far more stringent standard (100 times more stringent than IMO D-2), but does not require compliance until Additionally, in previous permits, Michigan has required use of particular treatment technologies which are not inclusive and limits shipowners options for no valid reason. IMESA, Inc. 9 Sandy Brook Drive, Durham, NH Page 10 of 15

91 International Maritime Comments on MPCA s Draft 401 Environmental And Safety Certification of the VGP2 Associates, Inc. 28 May 2012 CLARIFICATION OF COMMENTS SUBMITTED BY THE CLEAN WATER ACTION ALLIANCE I believe there are several points in the document submitted by the Clean Water Action Alliance which are outdated or require clarification. The following paragraphs address some of those issues. More ballast water is discharged into Minnesota Lake Superior harbors than any other Great Lakes ports. While this statement is not in dispute, the paragraphs which follow that statement attempt to establish a direct correlation between volumes of water discharged and risk of invasion. As numerous studies have demonstrated, volume of water discharged is only one of many factors to consider when determining risk of invasion. In the National Academies of Sciences report, they identify several factors which contribute to the variance in probability of establishment of a selfsustaining population: The factors encompassed by ε (sources of variation) are discussed here to underscore the importance of both event-specific (the moment of the release of a given inoculum from a single ship) and site specific conditions when discussing invasion risk. Figure 3-1 summarizes these sources of variation. The figure commences at the release of discharge of ballast water. At this stage, critical variables include (1) inoculum abundance, density and frequency, (2) the identity, diversity, source and history of the inoculating propagules, and (3) propagule quality. Post discharge processes then strongly influence the fate of the released propagules. These variable include both species traits and environmental traits, covering a very broad range of biological and ecological phenomena. These sources of variation are shown if Figure 3-1. This overview is not a comprehensive list of all factors (my emphasis added) that can influence invasion success, but is intended to illustrate significant sources of variation that are likely to influence the relationship between propagule supply and invasion outcome. In their admittedly non-comprehensive list of factors affecting the likelihood of establishment of a self-sustaining population, NAS identified 10 broad factors, only one of which related to the volume of discharge. Similarly, in his paper, Henry Lee, et al, also identifies numerous factors which will affect the likelihood of establishment of a self-sustaining population. Therefore, although, volume of discharged ballast water is one of many factors to consider when evaluating risk of introduction and establishment, for the waters of Lake Superior, it is likely not the most important factor. As stated previously, although more ballast water is discharged into Lake Superior than any other Great Lake, Lake Superior is the least invaded of the Great Lakes, leading one to believe that volume of discharged water is likely to be one of the least important factors when attempting to determine the risk of invasion. IMESA, Inc. 9 Sandy Brook Drive, Durham, NH Page 11 of 15

92 International Maritime Comments on MPCA s Draft 401 Environmental And Safety Certification of the VGP2 Associates, Inc. 28 May 2012 Given the rate of introduction there is no reason to expect that these costs will not continue to rise as more AIS are introduced and spread throughout the region. In fact, there are documented cases where the exact opposite is true. Following the introduction and spread of zebra mussels into the Great Lakes, affected industries spent vast sums of money not only treating water intakes for zebra mussels, but also developing technologies to combat the mussels and minimize their costs. This has, in fact, occurred. Many facilities with water intakes throughout the Great Lakes are spending far less on zebra mussel mitigation now, then when the mussels were first introduced. The example given for VHS is a poor one inasmuch as it has been confirmed that ballast water was not the likely vector for introduction of VHS into the Great Lakes. Additionally, after the initial fervor and panic regarding the introduction of VHS into the Great Lakes, most are realizing the threat to native fisheries was significantly overblown as populations naturally developed resistances to the virus. While no one, least of all me as an avid sport fisherman, is in favor of the needless introduction of potentially harmful organisms and viruses, the predicted catastrophic results from VHS have (fortunately) never come to fruition This section of the permit should also require a bi-annual review of technologies and require a report that includes recommendations to changes to permit standards based on this review. In principle, I agree with this recommendation. However, a comprehensive review of new ballast water treatment systems would take at least one year to 18 months and likely cost approximately $4-5 million based on my experience in evaluating similar studies while in the Coast Guard. Since the Coast Guard is already required to conduct such a study as part of its Final Rule, this requirement seems redundant and a waste of money. The $4-5 million could be used in other, more helpful studies such as the risk evaluation recommended by the National Academy of Sciences report which is already underway by the EPA. Given that this comment has been submitted to MPCA, it appears that the CWAA is implying MPCA should undertake such a study if EPA does not. Again, this appears to be wasteful and the money and resources could be used in a more helpful and useful way to help reduce the risk of invasions from all of the more than 60 vectors for introduction identified by the U.S. Geological Survey Change Minimize or avoid uptake of ballast water... to Avoid uptake of ballast water... In many cases, it is impossible for a vessel master to safely operate his or her vessel without taking on ballast while at the pier. Neither the VGP2 nor MPCA s 401 Certification should include language that might dissuade a vessel master from safely ballasting or deballasting his or her vessel. The Great Lakes Ballast Water Collaborative has discussed evaluating the existing Best Management Practices to determine their efficacy in preventing the introduction and spread of AIS. Therefore, any additional requirements prior to the conclusion of that study would be premature Tank sediment has been well documented to contain an abundance of AIS and is a substance that generally reduces the efficacy of ballast water treatment. I agree with the first part of this statement, but strongly disagree with the second half of the statement. There is absolutely no evidence to support the conclusion that tank sediments reduce the efficacy of ballast IMESA, Inc. 9 Sandy Brook Drive, Durham, NH Page 12 of 15

93 International Maritime Comments on MPCA s Draft 401 Environmental And Safety Certification of the VGP2 Associates, Inc. 28 May 2012 water treatment. In fact, this statement shows a complete lack of understanding of the ballast water discharge standard. The ballast water discharge standard is a numeric standard with which vessels must comply, regardless of source water organism concentration, amount of tank sediment, or any other factor. Recognizing that organism regrowth or exposure to sediments may affect the initial ballast water treatment, most BWMS generate enough residual biocide to ensure effectiveness throughout the duration of a ship s voyage and/or treat on discharge as well as uptake. Irrespective of how these systems work, all must meet the ballast water discharge numeric standard given the sheer volume of ballast water discharges its (Lake Superior) harbors receive. They do not establish a practicable standard consistent with available technologies and they do not establish a standard high enough to perform the role which standards historically play, namely, that of driving the development of improved technologies. As stated previously, volume of ballast water discharge is one of many factors to be considered when evaluating risk of introduction or spread of AIS and it is likely not the most important factor for Lake Superior. Under NISA/NANPCA, the Coast Guard is required to establish a standard which is practicable. During the several year rulemaking process, and after conducting significant research at a cost of tens of millions of dollars, the Coast Guard determined that the only practicable standard is the IMO D-2. The CWAA provides no data to support their conclusion that a standard more stringent than IMO D-2 is practicable. In fact, the second half of their statement belies the practicability requirement. After working closely with members past and present of the EPA s Office of Water, I have concluded that there are no examples where unreasonably stringent standards have driven the development of new technologies. I have asked numerous representatives from federal and state agencies, as well as non-governmental organizations to provide one example of where an exceedingly stringent standard has resulted in the development of a breakthrough technology and none can provide an example. Most people in the ballast water management field believe that achieving a discharge standard 100 times more stringent than IMO D-2 will require the development of a completely new technology, significantly different than existing technologies. Alternatively, it will require the use of biocides in concentrations which far exceed acceptable levels for discharge into the fragile environment of the Great Lakes. Unfortunately, technology driving statements such as the one above indicate a complete lack of understanding of the ballast water management system industry and its research and development. Many people believe that BWMS manufacturers and researchers have targeted the IMO D-2 standard for their systems. In fact, BWMS manufacturers and researchers are not targeting 10 organisms/m 3, rather, they are attempting to kill all organisms. However, the best systems developed to date have only been able to achieve the IMO D-2 Standard. BWMS developers will continue to strive to make their systems more energy efficient, less harmful to the environment, safer, and most importantly more lethal to organisms. This will be driven by the shipping market which seeks all of these criteria when evaluating BWMS. IMESA, Inc. 9 Sandy Brook Drive, Durham, NH Page 13 of 15

94 International Maritime Comments on MPCA s Draft 401 Environmental And Safety Certification of the VGP2 Associates, Inc. 28 May In February 2011, the New York State Department of Environmental Conservation found that the performance of one treatment system, made by Ecochlor, was at or near the confidence level needed to demonstrate compliance with New York s Clean Water Act Section 401 water quality based requirements. Since that date, New York state has determined that there are, in fact, no BWMS which meet their more stringent standard. In their draft 401 Certification released on May 16, 2012, New York state withdrew its more stringent standard, essentially agreeing that the 10X and 100X more stringent standards were not achievable or practicable and that no BWMS could meet that standard. Furthermore, despite heavy pressure and lobbying from the State of New York, both the EPA s Science Advisory Board and the Great Lakes Ballast Water Collaborative disagreed with New York s earlier claims and concluded that the IMO D-2 Standard is the most stringent standard that is practicable and achievable Bench testing of NaOH treatment and other technologies to meet standards more stringent than the IMO standard is showing great promise. I applaud American Steamship Company and their work with U.S. Geological Survey and Great Ships Initiative for undertaking experiments to develop an emergency treatment process for combating introduction and spread of AIS. However, characterizing this work as technologies to meet standards more stringent than the IMO and showing great promise completely belie the intention of these studies. It specifically has not been tested to meet a more stringent standard. Moreover, the testing involves an emergency treatment process and specifically not a ballast water management system. The two are entirely different and should not be confused Requirement for an emergency back-up system in the event installed technology fails. When drafting the regulations for ballast water discharge, the Coast Guard evaluated alternatives to consider when the installed treatment system failed or did not produce ballast water which met the standard. Options for the vessel master are available, including the use of skidmounted systems as mentioned by CWAA, shoreside treatment, discharge to a treatment barge, etc. In any event, once a vessel is required to meet the BWDS, that vessel may not discharge ballast into the navigable waters of the U.S. which is non-compliant. There are already emergency skidmounted systems which have been used in unique circumstances and which operate quite effectively. Therefore, requiring a backup system is unnecessary, causes needless additional expense and would serve no purpose Schedule for when Ballast Water Treatment Becomes BAT. There has been significant discussion at the IMO regarding the appropriateness of the timeline. Many believe that unless the IMO BWM Convention is ratified by the requisite number of flag states meeting the tonnage requirement within the next several months, the compliance schedule will be impossible to meet. It is estimated that worldwide more than 60,000 vessels will be required to install BWMS. In some cases, vessels will have to install multiple systems due to high flow rates and unique ballast water system layouts. At present, there is simply not the manufacturing capability to meet this demand on a more aggressive timeline. While not all BWMS require drydocking for installation, some will. Moreover, the workforce, engineering and design manpower, and equipment which will IMESA, Inc. 9 Sandy Brook Drive, Durham, NH Page 14 of 15

95 International Maritime Comments on MPCA s Draft 401 Environmental And Safety Certification of the VGP2 Associates, Inc. 28 May 2012 be used to install the BWMS almost all reside with shipyards. Thus, although the vessel may not be required to be drydocked, the controlling factor will be shipyard personnel and expertise availability. General Establishment of a Great Lakes regional or state-specific standard. While the Great Lakes maritime industry is critical to the welfare and economy of all of the Great Lakes states and their inhabitants, it is important to remember that vessels operating in or visiting the Great Lakes represent a minute percentage of the global shipping population. Most sources estimate that between 60,000 and 75,000 vessels will have to install BWMS in the coming years, totaling between 75,000 and 100,000 total systems. Conversely, the total number of vessels operating in the Great Lakes lakers and salties does not exceed 500 individual vessels annually and in some years may not exceed 300 individual vessels. This comprises less than ½ of one percent of the total number of vessels globally. The idea that a BWMS developer would spend the necessary research and development capital to capture 0.5% of the global market is simply not reasonable. CONCLUSION I share MPCA s desire to protect the waters of Lake Superior from invasive species. However, I believe the most effective way to accomplish this end is to harmonize the 401 Certification and the SDS Permit for ballast water with existing Coast Guard regulations and the proposed VGP2. By establishing certainty for vessel owners in terms of a consolidated standard with a timeline that is universally accepted, shipowners are more likely to install Coast Guard approved equipment sooner, rather than later. Additionally, by adopting or incorporating by reference the existing federal requirements, MPCA will ensure that its 401 Certification will not conflict with federal requirements thus minimizing the chance of unintentional non-compliance by the regulated industry. Finally, I thank the MPCA staff for providing the opportunity for public comment through both written and oral communication to MPCA staff and the Citizens Board. MPCA staff have consistently reached out to all stakeholders and provided opportunities for input and interaction. In particular, Jeff Stollenwerk has been instrumental in the Great Lakes Ballast Water Collaborative as a leader among the Great Lakes states representative in developing reasonable, practicable solutions to reducing the risk of introduction and spread of aquatic invasive species. Please feel free to contact me for clarification on any of the issues I have addressed in these comments or any other issues germane to this topic. Sincerely, Gary Croot President International Maritime and Environmental Safety Associates 9 Sandy Brook Lane Durham, NH IMESA, Inc. 9 Sandy Brook Drive, Durham, NH Page 15 of 15

96 May 28, 2012 Kate Frantz SP 5, Industrial Division Minnesota Pollution Control Agency 520 Lafayette Road North St. Paul, Minnesota Re: Notice of Availability and Request for Comments on Draft Section 401 Conditional Water Quality Certification of the U.S. Environmental Protection Agency s Proposed 2013 National Pollutant Discharge Elimination System General Permit for Commercial Vessels Dear Ms. Frantz: The Shipping Federation of Canada, incorporated by an Act of Parliament in 1903, is the representative of the owners, operators and agents of ocean ships trading at Canadian ports, including those in the St. Lawrence and Great Lakes regions. We welcome this opportunity to comment on the above noted certification of the U.S. s Environmental Protection Agency s (EPA) proposed 2013 Vessel General Permit for commercial vessels (VGP). This process is of keen interest to our members, the majority of whom transit from overseas to ports in eastern Canada and / or to U.S. ports located in the Great Lakes. We would like to begin by expressing our appreciation for the opportunity to discuss the proposed 401 certification during the Citizen s Board Meeting held by the Minnesota Pollution Control Agency (MPCA) on May 22nd. We strongly believe that sharing and exchanging information is the best means of developing provisions that will ensure the protection of Lake Superior s waters while providing the THE SHIPPING FEDERATION OF CANADA 300 St. Sacrement, suite 326 Montreal QC H2Y 1X4 Tel : (514) / Fax : (514)

97 regulatory certainty that is essential for the international shipping community. This being said, we have the following specific comments on the proposed certification that we would like to offer to the Agency for consideration. 1. Ballast Water Treatment Standard and Installation Schedule First, we welcome the MPCA s adoption of the International Maritime Organization ballast water treatment standard as set out in the International Convention for the Control and Management of Ship s Ballast Water and Sediments. The adoption of this standard by the MPCA, the EPA and the U.S. Coast Guard (USCG) provides much needed certainty to both the regulated community and to technology developers, and will go a long way towards ensuring progress in the development of new ballast water treatment systems. We would now encourage the Agency to go one step further and harmonize its implementation timeline with that of the IMO, EPA and USCG. For comparative purposes, we have provided the current implementation schedule (which includes the IMO, the USCG, the EPA and the MPCA) in Table 1 below: Table 1. Implementation Schedule for Ballast Water Treatment Technologies for Vessels with a Ballast Water Capacity Greater than 5000m 3 Application IMO Convention* USCG EPA MPCA New Vessels Existing Vessels Vessels constructed on or after January 1, 2012: on delivery 1 st scheduled intermediate or renewal survey after anniversary date in 2016 Vessels constructed on or after December 1 1, 2013: on delivery 1 st scheduled drydocking after January 1, 2016 Vessels constructed on or after January 1, 2012: on delivery 1 st scheduled drydocking after January 1, 2016 Vessels constructed on or after January 1, 2012: on delivery January 1, 2016 * The IMO Convention has currently been ratified by 33 countries, which account for 26,46% of the world s tonnage. In order to come into force, the convention must be ratified by at least 30 countries accounting for 35% of the world s tonnage. We would respectfully suggest that Minnesota adopt the same interpretation of a new vessel as offered by the USCG. Given that January 1, 2012 has passed and no treatment system has been tested under the ETV Protocol, the December 1 st, 2013 date provides a more realistic requirement for shipowners to install technologies tested in freshwater according to the ETV Protocol. As well, the current January 1, THE SHIPPING FEDERATION OF CANADA 300 St. Sacrement, suite 326 Montreal QC H2Y 1X4 Tel : (514) / Fax : (514)

98 2012 date creates a logistical nightmare for shipowners who are currently building ships, as they need to install technologies that have not been approved in the U.S., and which may eventually be denied approval if the domestic protocols introduce new requirements. a. Alternate Installation Timeline An alternative to the above is based on a proposal that was submitted to the state of Wisconsin since its 401 certification designates January 1, 2014 as the date by which ballast water treatment systems must be installed on existing vessels. In recognition of the fact that Wisconsin may be interested in introducing standards that are somewhat more stringent than those at the federal level, our industry has developed the following proposal, which we believe will create a standard that is potentially more stringent than federal requirements, but is more likely to be achievable and will permit oceangoing vessels to continue calling Wisconsin ports: For oceangoing vessels constructed prior to December 1, 2013, treatment systems shall be installed on the vessel's first scheduled dry docking date after January 1, 2014 and after the United States Coast Guard and the Environmental Protection Agency have approved at least five (5) commercially available treatment systems for operation in the waters of the Great Lakes or the date prescribed in the United States Coast Guard's Final Rule titled "Standards for Living Organisms in Ships' Ballast Water Discharged in U.S. Waters" or the date prescribed in the Environmental Protection Agency's applicable Vessel General Permit, whichever of these three dates is the earliest (s. 5.2, WPDES Permit No. WI ). For oceangoing vessels constructed on or after December 1, 2013, treatment systems shall be installed on the vessel's delivery as prescribed in the United States Coast Guard's Final Rule titled "Standards for Living Organisms in Ships' Ballast Water Discharged in U.S. Waters", as same may be amended, or the date prescribed in the Environmental Protection Agency's applicable Vessel General Permit (s. 5.2, WPDES Permit No. WI ). This proposed alternative language allows for standards that can potentially be achieved earlier in the Great Lakes than what is required either by USCG s Final Rule or the proposed Vessel General Permit, if ballast water treatment systems become certified for freshwater use and are commercially available. Moreover, the proposed alternative wording ensures that the interpretation of a new ship versus an existing ship is consistent with federal rules, which makes perfect sense given that there is no reason from a water quality perspective for a state to use a different terminology to define a new ship than that used by the federal government. THE SHIPPING FEDERATION OF CANADA 300 St. Sacrement, suite 326 Montreal QC H2Y 1X4 Tel : (514) / Fax : (514)

99 2. Numeric Water Quality Based Effluent Limitation (WQBEL) Determination for Ballast Water Discharges Although we support the MPCA s conclusions regarding the above mentioned numeric standard, we have some concerns with the language used in the Summary of the Basis, and with the following statement in particular: MPCA encourages vessel owners to pursue the most efficient treatment systems possible to avoid the potential need to upgrade systems in the future when a numeric standard may be adopted. The Federation and its members have had numerous exchanges with the MPCA in recent years, with a view to clearly explaining that the installation of a ballast water treatment system is far from a simple process. The suggestion that such systems may need to be upgraded once a numeric standard has been adopted significantly diminishes the regulatory certainty necessary that shipowners and operators require if they are to make the necessary investments in ballast water treatment systems. 3. Requirement to Conduct Ballast Water Exchange / Flush for Voyages Originating Beyond the EEZ Given that international shipping is, by its very nature, a cross border activity, it is important to avoid approaches that differ from the international legal regime adopted under the aegis of the International Maritime Organization (IMO). Although IMO Conventions allow signatory countries to establish higher national standards, going too far beyond these standards makes it difficult, if not altogether impossible, to maintain a coherent and feasible international regime. With this in mind, we would like to offer the following comments on section 4 of the proposed certification. We accept the additional requirement that ships transiting into the Great Lakes, including the waters of Minnesota, undertake ballast water exchange / saltwater flushing in addition to ballast water treatment. However, given the far reaching and all encompassing implications of such a requirement, we would have expected that it would be accompanied by a comprehensive scientific rationale. We are aware that current research (as per document BLG 15/5/7), as well as tests conducted at the Great Ships Initiative (GSI), indicate that ballast water exchange and saltwater flushing, combined with treatment, could result in a ten fold reduction in risk 1, since all freshwater taxa taken on board the vessel would be replaced by saltwater taxa, which cannot survive in the Great Lakes. However, there is currently no published information regarding the results of the land based tests undertaken at GSI, nor have any ship board tests been conducted. As well, we would respectfully suggest that an assessment be undertaken of how this requirement would impact the shipboard crews who will be responsible for 1 This should not be confused as a 10-times reduction in propagule pressure or 10-times IMO. THE SHIPPING FEDERATION OF CANADA 300 St. Sacrement, suite 326 Montreal QC H2Y 1X4 Tel : (514) / Fax : (514)

100 its implementation, as there may be some conflict with the requirements of the Convention on Standards of Training, Certification and Watchkeeping. 4. Emergency Control of Ballast Water Discharge We believe there is a need for additional detail regarding the definition of high risk ballast water. As oceangoing vessels must perform ballast water exchange and / or saltwater flushing before entering the Seaway system, we are unsure whether this provision was developed exclusively for transits between Great Lakes ports or whether it also includes transits to / from overseas ports. We would caution against the application of this measure for ships coming into Minnesota ports from overseas, since it is already mandatory to perform ballast water exchange / saltwater flushing, and noncompliance measures are enforced before entry into the Great Lakes. Because of the possible regulatory duplication, we recommend clarifications as to what vessels this could apply to. 5. Monitoring Requirements Given the high costs associated with the installation of a ballast water treatment system, it is in the best interests of everyone in charge of the vessel to maintain that system in accordance with the manufacturer s specifications and instructions. Therefore, we would suggest that rather than adding new requirements, that the test results sent to the EPA (as per the provisions of the VGP) also be made available to Minnesota. 6. Final Comments We hope to continue working with the Minnesota Pollution Control Agency on the finalization of its 401 certification, with a view to ensuing that such certification protects the waters of Lake Superior while also recognizing the realities of the international shipping industry. As we saw with the first VGP in 2008, the state certification process can result in a patchwork of regulatory requirement that is disastrous for the Great Lakes area. If the MPCA believes that the provisions of the VGP and associated 401 certifications provide sufficient protection to the waters of the Great Lakes, we would respectfully suggest that it reconsider the utility of also maintaining the Minnesota Ballast Water Discharge General Permit as a requirement to transit Minnesota waters. Although this would obviously streamline administrative and operational requirements for international shipowners and operators, it would, more importantly, demonstrate that protection of Great Lakes waters can be achieved with the regulatory instruments available under the Clean Water Act. THE SHIPPING FEDERATION OF CANADA 300 St. Sacrement, suite 326 Montreal QC H2Y 1X4 Tel : (514) / Fax : (514)

101 ******* Before closing, we would also take this opportunity to reiterate our willingness to collaborate with the Minnesota Pollution Control Agency in its efforts to develop the next version of the Vessel General Permit. Towards that end, we would be pleased to provide any additional clarification or information you may require, and remain available to provide input in the future. Respectfully submitted, Caroline Gravel Director, Environmental Affairs Shipping Federation of Canada The Shipping Federation of Canada (The Federation), incorporated by an Act of Parliament in 1903, acts as the pre eminent voice of shipowners, operators and agents involved in Canada s world trade. Its overall objective is to work towards a safe, competitive and environmentally sustainable marine transportation system. THE SHIPPING FEDERATION OF CANADA 300 St. Sacrement, suite 326 Montreal QC H2Y 1X4 Tel : (514) / Fax : (514)

102 May 28, 2012 Kate Frantz SP-5, Industrial Division Minnesota Pollution Control Agency 520 Lafayette Road North St. Paul, Minnesota Re: Comments by The St. Lawrence Seaway Management Corporation on Minnesota Draft Section 401 Conditional Water Quality Certification of the U.S. Environmental Protection Agency s Proposed 2013 National Pollutant Discharge Elimination System General Permit Dear Ms. Frantz, Please find comments on the matter above stated from the St. Lawrence Seaway Management Corporation (SLSMC) for which we welcome the opportunity to comment on this draft section 401 conditional water quality certification of the U.S. s Environmental Protection Agency (EPA) proposed 2013 National Pollutant Discharge Elimination System General Permit for commercial vessels (VGP). This process is of great interest to SLSMC and its users; the owners, operators and agents of Domestics and Ocean ships trading on the Great Lakes and St. Lawrence Seaway System (GLSLSS).. The SLSMC is a not-for-profit corporation responsible for the safe and efficient movement of marine traffic through the Canadian Seaway facilities, which consists of 13 of the 15 locks between Montreal and Lake Erie. The Corporation plays a pivotal role in ensuring that the waterway remains a safe and well-managed system, which it shares with its American counterpart, the Saint Lawrence Seaway Development Corporation. We would like to express our appreciation to the Minnesota Pollution Control Agency (MPCA) for the opportunity to invites comments on the proposed 401 certification and be assure SLSMC support the state s efforts to protect its water, a unique natural resource, that benefit close to 100 million people in 8 states and 2 provinces of this bi-national system. The sustainable solutions endeavors is based on a shared belief that environmentally viable marine operations can be achieved best practices, progressive stakeholder s engagement and innovation in regulations. That being said, we do have comments on the proposed certification that we would like to offer to the Agency for consideration. We welcome the Page 1 o f 4

103 MPCA s adoption of the International Maritime Organization (IMO) ballast water treatment standard as included in the International Convention for the Control and Management of Ship s Ballast Water and Sediments. This adoption provides the foundation of much needed certainty for all stakeholders and ensures progress toward essential harmonization of the regulations. Eight conditions were highlighted in the Draft of which the following item are of concerns to us. 1. Condition 1 - Compliance with Minnesota SDS Permit for Ballast Water The most concerning issues regarding the Conditions 1 from the Draft 401 Certificate is in regard of the implementation schedule for new vessels cannot be complied with due to practical constraints due to inexistent technological solutions. In the advent the technology becoming available in the short term, its certification and implementation cannot be achieved in the time frame provided by the proposed schedule. We would encourage Minnesota to further able its requirements in aligning them with the US Coast Guard (USCG) and proposed implementation of the installation of ballast water management system (BWMS) for new vessels first dry-dock following January 2014 and existing vessels to first dry-dock following January We also urge MPCA to include a proviso in its 401 Certification that requires BWMS to g: Validated at fresh water testing facility according to the US EPAETV Protocol Commercial available USCG type-approval for use in the unique water conditions of the Great Lakes (specifically Lake Superior) Viable for installation in specific vessels type Availability of dry-dock facilities after the designated dates (new or existing vessels) 2. Condition 6 - Cover of Lakers confined to upstream of the Welland Canal Although a large proportion of the Domestics fleets (US and Canadian) operate exclusively in the Great Lakes above Port Colborne Ontario, very few are confined to operate above the Welland Canal. This conditions as proposed, have very limited applicability and the creating a differentiation that as no strong scientific supported analysis. The ballast water management practices of the fleets are considered to be very effective whether operating above or below the Welland Canal. A vessels type/classes instead of a geographical consideration would have a greater effective manner to deal with the challenge posed to installing BWMS in vessels designed to operate in the GLSLSS. 3. Condition 3- Oceanic Ballast Water Exchange/Flushing for voyages Originating within the Exclusive Economic Zone (EEZ) Page 2 o f 4

104 This condition poses significant challenge, especially for vessels that voyages are from a coastal port from eastern Canada and would require to BW exchange in doing so with an extended deviation to routing to gain the limits of the Zone, long time and costly. For vessels in this situation, a reduction in the distance from shore to a 25 nautical miles distance would alleviate the significance imposed constraints. We urge the MPCA to consider this in the development of this condition. 4. Condition 4 - Ballast Water Exchange/Flushing for voyages Originating beyond the EEZ We would like to extend the position expressed by a stakeholder of the GLSLSS, The Shipping Federation of Canada ; Given that international shipping is a cross border activity by its very nature, it is important to avoid approaches that differ from the international legal regime adopted under the aegis of the IMO. Although IMO Conventions allow signatory countries to establish higher national standards, going too far beyond these standards makes it difficult, if not altogether impossible, to maintain a coherent and feasible international regime. With that in mind, we would like to offer the following comments on section 4. We will not object to the additional requirement of undertaking ballast water exchange / saltwater flushing in addition to ballast water treatment for oceangoing ships transiting into the Great Lakes, including the waters of Minnesota. However, considering the allencompassing implications of this section, we would have expected to see a sound scientific rationale for the required provisions to have been included in Minnesota s 401 certification. We are aware that research is on-going as per document BLG 15/5/7 and tests have been conducted at the Great Ships Initiative (GSI), with results supporting the assumption that a 10 times risk reduction could be achieved (not to be confused as a 10-times reduction in propagule pressure or 10-times IMO), since all freshwater taxa taken on-board the vessel would be replaced by saltwater taxa, for which suitable habitat conditions for survival cannot be found in the Great Lakes. However, at this time there is no published information regarding the results of the landbased tests undertaken at GSI, nor has any ship-board tests been conducted. As well, we would respectfully suggest that an assessment be conducted which would include information on implications for the crews on-board the ships which will need to implement this section s provisions, as these may conflict with the Convention on Standards of Training, Certification and Watch keeping requirements. Working with the MPCA in a continued manner to finalize the 401 certification is a greatly appreciated by all at the SLSMC. This collective effort with all stakeholders ensure that protection of the waters of Page 3 o f 4

105 the Lakes Superior and the ability to support the reality of system that contributes to the bi-national economy and the environmental well keeping of the GLSLSS. Please let me thank you again for the opportunity to comment on the Draft certification, and be assure of our willingness to collaborate with the Minnesota Pollution Control Agency in its efforts to develop the next generation of Vessel General Permit for the benefit of all stakeholders. We would be please to provide further information and clarifications you may require, and remain available in the future at your convenience. Respectfully submitted Jean Aubry-Morin Vice President, Corporate Sustainability Vice Président, Développement durable The St. Lawrence Seaway Management Corporation Corporation de Gestion de la Voie Maritime du Saint-Laurent 202 rue Pitt street, Cornwall, Ontario, Canada K6J 3P7 Tel.: x3249 Cell.: The Great Lakes-St. Lawrence Seaway marine shipping industry supports 227,000 jobs in the U.S. and Canada, generates $34 billion in business revenue, and moves 164 million metric tons of cargo annually on the system. Page 4 o f 4

106 Consulate General of Canada Consulat general du Canada./ By. ", 701 Fourth Avenue South, Suite 900 Minneapolis, MN June 8, 2012 Kate Frantz, SP.5 Industrial Division Minnesota Pollution Control Agency 520 Lafayette Road North St. Paul, Minnesota 55 I55-4 I94 FAX: kate.fi.antz@state.mn.us Dear Ms. Frantz: Attached please find the Government of Canada's submitted public comments relating to drall certification of the Environmental Protection Agency's next Vessel General Permit under section 401 of the Clean Water Act.. The Government of Canada is interested in the Minnesota Pollution Control Agency's DRAFT 40 I Certification of the proposed Vessel General Pemlit 2; appreciates the opportunity to provide comments; and wishes this letter from The Hon. Denis Lebel, Minister of Transport. be considered as part of the state's public notice period. Thank you for your consideration. Cc: The Honorable Mark Dayton The Honorable Yvonne Prettner Solon Commissioner John Linc Stine, Minnesota Pollution Control Agency Commissioner Tom Landwehr, Minnesota Department of Natural Resources " Canada

107 Ministre des Transports, de I'lnfrastructure et des Collectivites et ministre de I'Agence de developpement economique du Canada pour les regions du Quebec Minister of Transport, Infrastructure and Communities and Minister of the Economic Development Agency of Canada for the Regions of Quebec Kate Franz SP-5 Industrial Division Minnesota Pollution Control Agency 520 Lafayette Road North St. Paul, Minnesota United States of America Ottawa. Canada K 1A ONS ::fu~ Dear Ms. Franz, On behalf of the Government of Canada, I am pleased to submit this letter in response to the Minnesota Pollution Control Agency's call for public comments relating to draft certification of the Environmental Protection Agency's next Vessel General Permit under section 401 of the Clean Water Act. The purpose of these comments is to provide context for the state certification process by explaining Canada's approach to ballast water regulation, and the importance Canada places on compatibility in ballast water requirements. The Government of Canada shares Minnesota's desire to reduce the risk of aquatic species invasions from ships' ballast water, particularly on the Great Lakes and St. Lawrence Seaway system. This bi-national trade route supports a vibrant economy on both sides of the border, serving as a critical transportation corridor for commodities such as iron ore, coal, minerals and grain. For both these reasons, Canada values its continuing dialogue with United States (U.S.) regulators, through such forums as the Ballast Water Collaborative, towards compatible science-based requirements on the Great Lakes that are actionable, practicable and protective. Canada is proud of the long history of strong and compatible environmental protections our two countries have established for our navigable boundary waters. Today, one hundred percent of vessels entering the St. Lawrence Seaway from outside Canada's exclusive economic zone are inspected under a bi-national program before they enter the Great Lakes. This enforcement action ensures one hundred percent compliance, as ships must either have met the regulatory requirements or take corrective action to meet them. No new non-native species attributed to ships' ballast water has been reported on the Great Lakes since OJ.Q386 ( l Canada

108 -2- In continuing to strengthen its regulations, Canada has recognized that shipping is a global business and that the world fleet carries North America's trade. Accordingly, the most effective protection for our shared waters will be achieved when countries around the world promptly implement compatible rules. To facilitate this, Canada has ratified the International Convention for the Control and Management of Ships' Ballast Water and Sediments, 2004 of the International Maritime Organization (IMO), which is poised to ensure the timely installation of ballast water treatment systems by approximately ships from around the world. Canada is currently working to implement the requirements of the convention in its regulations under the Canada Shipping Act, In addition, Canada has proposed continuance of ballast water exchange even after treatment systems are installed and Canada is exploring appropriate requirements for domestic ships at the Ballast Water Collaborative. Compatibility in requirements is even more important amongst ballast water regulators on the Great Lakes St. Lawrence Seaway system, as non-native species do not recognize the political boundaries of our 11 overlapping jurisdictions. Regional economic benefits of compatibility are also substantial, as the system supports over 225,000 jobs and almost $35 billion in business revenue in Canada and the U.S. Minnesota's share of this has been estimated at over 6200 jobs and about $1.3 billion'. Thus, not only are compatible requirements protective of our shared environment, they are also supportive of our common economic and trade goals. Canada is hopeful that Minnesota will align its certification requirements with those of the IMO towards an internationally compatible, science-based approach that is actionable, practicable, and provides safety for ships, crews and the environment while supporting efficient marine transportation and trade across federal and state borders on the Great Lakes. Sincerely, Denis Lebel, P.C., M.P. c.c.: The Honorable Ray LaHood Secretary of Transportation The Honorable Janet Napolitano Secretary of Homeland Security. Martin Associates, The economic impacts of the Great Lakes-St. Lawrence Seaway system, 2011.

109 APPENDIX B Minnesota Pollution Control Agency Draft 2013 EPA Vessel General Permit Minnesota Draft 401 Water Quality Certification RESPONSE TO COMMENTS ON THE 401 WATER QUALITY CERTIFICATION 1. Comments by Andrew Slade, Minnesota Environmental Partnership. Letter received May 23, Comment 1 1: The commenter identifies that within Condition 6, Point 1 states, Conduct a ballast water exchange in the deepest, warmest water prior to entering Lake Superior. The commenter believes the language should read deepest, coldest water, since deep water in the Great Lakes are generally colder than shallow water. In addition, the commenter states that cold water that would be most inhabitable to the VHS and therefore may have been the reason for the reference to warmest water. Response: Comment noted. The best management practice requirements have been edited to clarify applicability of requirements to address all invasive species. The recommendations specifically addressing VHS have been deleted due to the questionable feasibility and benefits. It is also noted that recommendations can be made at any time. It is not necessary to include recommendations in a 401 certification. 2. Comments by James H.I. Weakley, Lake Carrier s Association. Letter received May 24, Comment 2 1: The commenter emphasizes the economic impact that the mining industry currently has on the region as well as the state of Minnesota, and the impact of shipping on the mining industry, specifically the ports of Duluth, Superior, Two Harbors and Silver Bay. Response: Comment noted. Comment 2 2: The commenter states that the 401 Certification, as written, would make it impossible for existing Lakers to operate legally in Minnesota waters after January 1, Response: The 401 Certification requires vessels to acquire and comply with the current State Disposal System (SDS) Ballast General Permit. The current SDS Ballast General Permit will expire in September The Minnesota Pollution Control Agency (MPCA) plans to begin the reissuance process in 2012 and will review all requirements, including applicability and schedule for compliance with discharge standards, during the reissuance of the permit. This work is expected to be completed well before the January 1, 2016, date cited in the comment. Comment 2 3: The commenter expresses that the EPA 2013 VGP and the US Coast Guard Final Rule adequately protect the Great Lakes from aquatic invasive species, are feasible and practical, thus ensuring compliance, and economically achievable for the industry. In light of the widespread preference for a federal standard, the commenter requests that Minnesota either grant the 401

110 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification Certification with no conditions and modify the SDS Permit to be consistent with the 2013 VGP and the US Coast Guard Final Rule, or rescind them. Response: The MPCA agrees with the commenter that the U.S. Environmental Protection Agency (EPA) 2013 Vessel General Permit (VGP) and the US Coast Guard Final Rule are more protective than previous federal actions, are feasible and practical and economically achievable. However, a 401 Certification can only be granted with no conditions if the Permit fully complies with all Minnesota water quality standards. Also, since the EPA 2013 VGP has not yet been finalized, rescinding the SDS permit would not fully comply with Minnesota water quality standards. Comment 2 4: The commenter states that there is a lack of available ballast water management systems available to Lakers and no treatment technologies are foreseen at this time. The commenter states that other Great Lakes states have also concluded that no treatment technologies are currently available for Lakers, due to the unique characteristics of the Lakers, including high discharge flow rates, short voyages, operation within wide temperature ranges, the potential for corrosion damage from biocides used as treatment, and fresh water considerations. Response: Though the Great Lakes states coordinated 401 Certification development, each state s 401 Certification must include region or state specific priorities. As the receiver of the vast majority of ballast water discharge from Lakers, and the potential for spread of invasive species from the lower lakes to Minnesota Waters, Minnesota remains interested in Lakers being considered as part of the fleet to which numeric ballast discharge limits are applicable to protect our water resources. Comment 2 5: The commenter states that they are in support of MPCA s conclusions regarding the determination of a WQBEL for ballast water discharges at this time. However, the commenter recommends Minnesota s proposed monitoring requirements be amended to focus more on scientific studies for data gathering instead of the proposed annual monitoring requirement for each ship. Response: The 2013 VGP proposes best management practices and no numeric discharge limits for confined lakers. The 2013 VGP further notes that additional requirements may be imposed if water quality impacts are observed. However, the 2013 VGP fails to define how ballast discharges will be observed for the purposes of determining water quality impacts. In the interest of directly addressing the environmental concern, the MPCA staff proposed annual monitoring of organisms in ballast water discharges to determine the potential threat to Minnesota waters. Commenters raised logistical concerns regarding the timing and analysis required by the draft 401 Certification. The requirement has been modified to require either the annual sampling of ballast water discharges or a study proposed and completed by vessel owner(s). This flexibility allows for vessel owners to develop and propose studies, which may be completed individually or as partnerships with other vessels. This requirement begins 24 months following the VGP reissuance. Comment 2 6: The commenter states concern regarding minor differences between the federal regulations and IMO standards and Minnesota s SDS permit and 401 Certification, including a minor difference in organism size classes and a lack of definitions section in the SDS permit. The 2

111 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification commenter recommends that MPCA incorporate by reference the entire US Coast Guard Final Rule into the 401 Certification. Response: The inconsistencies noted occur in the SDS Ballast General Permit. The current SDS Ballast General Permit will expire in September The MPCA plans to begin the reissuance process in 2012 and will review all requirements, including consistency with similar regulations, during the reissuance of the permit. Comment 2 7: The commenter suggests Minnesota discontinue issuing SDS Permits under the SDS Ballast Water Discharge General Permit and eliminate the SDS Permit in As an alternative, the commenter suggests the next iteration of the SDS permit could be a direct adoption of the US Coast Guard or IMO discharge standards. Response: Since the EPA 2013 VGP has not yet been finalized, rescinding the SDS permit would not fully comply with Minnesota water quality standards. The next iteration of the SDS permit will be reviewed in 2013, prior to its expiration. The recommendations in this comment will be considered at that time. Comment 2 8: The commenter expresses concern that systems which may receive US Coast Guard type approval would not be practicable for use on Lakers due to the use of salt water which would be highly corrosive to Lakers uncoated ballast tanks as well as the high power demand which would be unavailable on Lakers. Response: The 401 Certification requires vessels to acquire and comply with the current SDS Ballast General Permit. The current SDS Ballast General Permit will expire in September The MPCA plans to begin the reissuance process in 2012 and will review all requirements, including availability of treatment technologies for Lakers, during the reissuance of the permit. Comment 2 9: The commenter states that the recommended BMPs within Minnesota s 401 Certification were developed for use during an active VHS incident and would be not be appropriate to implement on a routine basis. However, the commenter states it is reasonable for these recommended BMPs to be incorporated into a vessel s ballast management plan, should a similar active VHS incident occur where vessels must take on ballast. Response: Comment noted. See response to Comment 1 1. Comment 2 10: The commenter notes that while ballast water from Lakers can influence the spread of aquatic invasive species, the US Geological Survey has identified 63 other factors, included as an Attachment to the comments. Response: Comment noted. Comment 2 11: The commenter identifies slight differences between the IMO Standards, the Coast Guard Final Rule and the EPA draft 2013 VGP. The commenter recommends the Minnesota 401 Certification and SDS permit adopt the limit and sample types that are adopted by the US Coast Guard rule to ensure consistency. 3

112 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification Response: See response to Comment 2 6. Comment 2 12: Regarding the treatment requirement for vessels constructed prior to January 1, 2012, the commenter reiterates that they do not believe there will be available treatment systems which will be effective on Lakers by the January 1, 2016 implementation date. Further, regarding the treatment requirement for vessels constructed after January 1, 2012, the commenter states that, due to the US Coast Guard type approval system, treatment systems will likely not be available to install on vessels until January 2015 at the earliest. Response: See responses to Comments 2 4 and 2 8. Vessel owners that plan to build vessels subject to the January 1, 2012, deadline are encouraged to contact the MPCA as soon as possible to discuss these situations on a case by case basis. Comment 2 13: The commenter requests clarification regarding the line of demarcation for the Welland Canal, and recommends that the delineation should be at the downstream end of the Welland Canal. In addition, the commenter requests clarification regarding the term confined, as the commenter states that many vessels are capable of transiting through the Welland Canal but normally do not. Based on this, the commenter suggests the term confined to be changed to Lakers operating exclusively upstream of the northernmost lock in the Welland Canal. Response: The MPCA staff share the commenter s concerns. Since the Welland Canal concept originates from the 2013 VGP, MPCA staff feel it appropriate for the EPA to provide any specific demarcation clarifications to avoid possible inconsistent requirements among various 401 Certifications. Comment 2 14: The commenter reiterates the concern regarding a lack of definitions section in the Minnesota 401 Certification or SDS permit, and recommends that the MPCA adopt definitions from 33 Code of Federal Regulations Part 151, Subparts C and D, which contain the US Coast Guard s new and existing ballast water regulations. Response: See response to Comment 2 6. Comment 2 15: The commenter included comments submitted to EPA regarding the draft EPA 2013 VGP for reference to Minnesota s 401 Certification. Response: The MPCA appreciates the additional information. 3. Comments by Daryn McBeth, Minnesota Agri Growth Council. Letter received May 24, Comment 3 1: The commenter requests that the MPCA grant a 401 Water Quality Certification without conditions and not proceed with a 401 Water Quality Certification which includes additional ballast water treatment requirements. Response: A 401 Certification can only be granted with no conditions if the Permit fully complies with all Minnesota water quality standards. Also, since the EPA 2013 VGP has not yet been finalized, 4

113 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification rescinding the SDS permit at this time would not fully comply with Minnesota water quality standards. Comment 3 2: The commenter supports the EPA draft 2013 VGP permit as written for requiring and implementing best available treatment technologies and states the importance of consistent standards throughout the Great Lakes region. Response: Comment noted. 4. Comments by Adolf Ojard, Duluth Seaway Port Authority. Letter received May 25, Comment 4 1: The commenter provides background information supporting the economic benefits of the shipping industry and states that regulations must not damage the state s economic base while ensuring a clean environment. The commenter states that regulation which does not provide measurable benefits but may damage the area economy should not exist. Response: Comment noted. Comment 4 2: The commenter recommends that MPCA grant the 401 Certification of the 2013 VGP without conditions. Response: A 401 Certification can only be granted with no conditions if the Permit fully complies with all Minnesota water quality standards. The MPCA staff have determined that additional conditions are necessary with state water quality standards. Comment 4 3: The commenter requests that the Minnesota SDS Permit MNG Ballast Water Discharge General Permit should be reopened and modified to eliminate requirements that the commenter has stated are severely detrimental to the Great Lakes shipping industry. Response: The next iteration of the SDS permit will be reviewed in 2013, prior to its expiration. Comments regarding the next iteration of the SDS permit may be submitted and reviewed at that time. Comment 4 4: The commenter states that the Great Lakes/St. Lawrence Seaway is quite protected from invasive species, and the ballast water exchange/flush program has been very successful in the elimination of new species introductions to the Great Lakes. As the science and policy moves forward on this issue the state and federal agencies will likely continue to work more closely to share information and develop more consistent requirements. Response: While the MPCA agrees that the ballast water exchange/flush program has been very successful in recent years for reducing aquatic invasive species, the MPCA is consistent with other Great Lakes states and federal agencies in its approach requiring further treatment technology to be installed on vessels to meet the International Maritime Organization ballast discharge limitations. 5

114 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification Comment 4 5: The commenter states that the US Coast Guard has not type approved any treatment system specifically for use in freshwater systems of the Great Lakes. The commenter further references the National Academy of Sciences report to EPA that this type approval process cannot happen within the timeframe the commenter identifies to be required in Minnesota s SDS permit MNG Response: The MPCA agrees with the commenter that the US Coast Guard type approval system will likely influence the timeline for available technologies to be installed on freshwater vessels. The next iteration of the SDS permit will be reviewed in 2013, prior to its expiration or the deadline for installation of treatment technology. Comments regarding the next iteration of the SDS permit may be submitted and reviewed at that time. Comment 4 6: The commenter states that there are 32 states and tribes which have or plan to implement regulation beyond the EPA 2013 VGP requirements. The commenter expresses concern with the potential added cost and administrative requirements which may not have measurable additional effects as compared to the federal requirements. Response: Comment noted. Comment 4 7: The commenter states that of the total 60,000 ships in the world, only 10% are built to a size which can fit through the locks and channels of the St. Lawrence Seaway. The commenter further states that these ships visit the Seaway System infrequently, often less than once per year. The commenter also notes that the ships have ballast water treatment equipment on board per IMO regulations, in addition to meeting national US and Canadian standards. Response: Comment noted. Comment 4 8: The commenter requests that Minnesota s draft 401 Certification not include the requirement of compliance with the Minnesota SDS Ballast Water Discharge General Permit (MNG300000), as the commenter states that the SDS permit is unenforceable, unattainable, and would make it illegal for most ships to enter Minnesota waters after January 1, The commenter again requests the elimination of the SDS Ballast Water Discharge General Permit, rather than reissue or modify it. Response: A 401 Certification can be granted with conditions which ensure the Permit fully complies with all Minnesota water quality standards. Since the SDS permit was written consistent with Minnesota requirements, not including the SDS Ballast Water Discharge General Permit within the 401 Water Quality Certification would not ensure compliance with Minnesota water quality standards. The next iteration of the SDS permit will be reviewed in 2013, prior to its expiration. Comments regarding the next iteration of the SDS permit may be submitted and reviewed at that time. Comment 4 9: The commenter requests Minnesota accept any future WQBEL as determined by federal agencies and do no additional work on determining a WQBEL for aquatic invasive species. 6

115 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification Response: The federal Clean Water Act requires the MPCA certify whether any proposed Water Quality Based Effluent Limit (WQBEL) is protective of applicable Minnesota water quality standards. Comment 4 10: The commenter requests that Minnesota not specifically include ocean ballast water exchange within the 401 Certification, since the commenter believes this requirement is adequately included in the 2013 VGP. Response: Since 2013 VGP has not been final issued and the US Coast Guard final rule does not include continued ballast water exchange requirements after treatment is installed, it is appropriate for this requirement to remain. 5. Comments by Mike Robertson and Keith Hanson, Minnesota Chamber of Commerce. Letter received May 25, Comment 5 1: The commenters recommend that, due to the lack of available ballast water management systems available to Lakers, the requirement that Lakers install ballast water treatment systems by January 2016 should be removed. The commenter states that other Great Lakes states have not specifically required ballast water treatment technology to be installed on Lakers, and that Minnesota s requirement will result in an inability to comply for Lakers. The commenter states that the Minnesota s industries will no longer have shipping available as a mode of transportation of cargo. Response: Though the Great Lakes states have developed their respective 401 Certifications in concert with one another, each state s 401 Certification must include region or state specific priorities. As the receiver of the vast majority of ballast water discharge from Lakers, Minnesota remains interested in Lakers being considered as part of the fleet to which treatment requirements are applicable. Since the SDS permit was written consistent with Minnesota requirements, not including the SDS Ballast Water Discharge General Permit within the 401 Water Quality Certification would not ensure compliance with Minnesota water quality standards. The next iteration of the SDS permit will be reviewed in 2013, prior to its expiration. Comments regarding the next iteration of the SDS permit may be submitted and reviewed at that time. Comment 5 2: The commenters request that the MPCA follow the US Coast Guard and EPA in their stance that should a viable treatment technology for Lakers become available prior to the expiration of the 2013 VGP, that installation of this technology will become required for Lakers. Response: See responses to Comments 2 4 and 2 8. Comment 5 3: The commenters state that the economic impacts of Minnesota s requirement for Lakers are significant and could isolate products such as iron ore from additional development. Response: Comment noted. Comment 5 4: The commenters express concern with the potential variation in regulation between Great Lakes states and the EPA and requests that MPCA collaborate with other Great Lakes states and federal agencies regarding the establishment of WQBELs and other common concerns. 7

116 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification Response: See responses to Comment 5 1 and 4 4. Comment 5 5: The commenters request that should the requirement of treatment technology being installed on all vessels by January 2016 not be removed, that an analysis of the net environmental benefit be conducted to support this requirement. Response: See responses to Comments 2 4 and 2 8. Comments regarding the next iteration of the SDS permit may be submitted at that time. Comment 5 6: The commenters ask why an SDS permit was utilized to regulate ballast water discharges, and states that for ballast water discharges the commenter believes Minnesota s approach should be consistent with the federal permitting program. Response: An SDS permit was utilized in this case in the absence of adequate federal regulations to protect waters of the state from ballast water discharges. The MPCA s SDS permit and 401 Certification are largely consistent with the federal permitting program, as well as the US Coast Guard Final Rule, with the exception of those requirements included in the 401 Certification. Comment 5 7: The commenter states that the 401 Certification refers to Lake Superior as a demonstration zone for the zero discharge concept by the Lake Superior BiNational Program. The commenter notes that the zero discharge for this program refers to the bio accumulative chemicals of concern, which the commenter states are not a concern in ballast water discharges. Response: Comment noted. 6. Comments by William S. Murphy, Canal Barge Company, Inc. Letter received May 25, Comment 6 1: The commenter expresses concern with the 401 Certification process due to the potential for variable and conflicting state requirements in addition to the 2013 VGP conditions. The commenter states the difficulty for vessel crews to modify operations of a towing vessel regularly moving across invisible state lines. The commenter requests the MPCA grant the 401 Certification with no additional conditions. Response: The MPCA has worked with the Great Lakes states to develop the 401 Certifications to be as consistent as possible. Since the SDS permit was written consistent with Minnesota requirements, not including the SDS Ballast Water Discharge General Permit within the 401 Water Quality Certification would not ensure compliance with Minnesota water quality standards. A 401 Certification can only be granted with no conditions if the Permit fully complies with all Minnesota water quality standards. Comment 6 2: The commenter states that the best solution would be a national standard which would provide a uniform framework for the regulation of vessel discharges. The commenter believes the Coast Guard Authorization Bill, passed by the US House of Representatives in November 2011 would achieve the national standard and requests that MPCA encourage State Senators Klobuchar and Franken to support this bill in the Senate. 8

117 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification Response: Comment noted. 7. Comments by Marc F. Stoken, United States Steel Corporation; Jonathan Holmes, Arcelor Mittal Minorca mine Inc.; Terrence R. Mee, Cliffs Natural Resources Inc. Letter received May 25, Comment 7 1: The commenter requests that the MPCA grant the 401 Certification with no conditions. The commenter expresses that the EPA 2013 VGP and the US Coast Guard Final Rule adequately protect the Great Lakes from aquatic invasive species, and appropriately focus on the oceangoing vessels. The commenter states that the best management practices applicable to Lakers, as included in the 2013 VGP, are appropriately protective against aquatic invasive species. Response: The MPCA has worked with the Great Lakes states to develop the 401 Certifications to be as consistent as possible. Since the SDS permit was written consistent with Minnesota requirements, not including the SDS Ballast Water Discharge General Permit within the 401 Water Quality Certification would not ensure compliance with Minnesota water quality standards. Comment 7 2: The commenter states that other Great Lakes states have not included in their 401 Certifications any requirements for ballast water treatment systems on Lakers. The commenter requests that the MPCA 401 Certification be consistent with federal requirements regarding Lakers. Response: See responses to Comments 2 4 and 2 8. Comment 7 3: The commenter emphasizes the economic impact that the mining industry currently has on the region as well as the state of Minnesota, and the impact of shipping on the mining industry. The commenter expresses concern that the economic impacts of Minnesota s requirement for Lakers are significant could restrict the mining industry s further development in Minnesota, which the commenter states could have economic impacts throughout the Great Lakes region. Response: Comment noted. 8. Comments by Neil Kagan, et al., National Wildlife Federation. Letter received May 26, Comment 8 1: MPCA should certify 2013 VGP only if MPCA can certify that the discharges it authorizes will comply with Minnesota water quality standards and that MPCA s certification conditions assure that dischargers will comply with Minnesota water quality standards. MPCA s draft certification that its conditions provide reasonable assurance of compliance with Minnesota water quality standards is insufficient to satisfy the requirements of 401 of the Clean Water Act ( CWA ). Response: In this comment, NWF et al. asserts that both state and federal law require a state certification that assures compliance with state water quality standards. The MPCA does not disagree. NWF et al. also asserts, however, that MPCA s certification rule, Minn. R , subp. 1(A) is ineffective to meet the requirement that the state certification assure compliance with state water quality standards, because the rule makes reference to the certification being based on a reasonable 9

118 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification assurance that the activity will not violate applicable water quality standards, whereas 33 U.S.C requires that the state certify that the discharge will comply with applicable water quality standards. The MPCA finds that there is no meaningful distinction between the standard articulated in the rule and the standard articulated in the statute. Any action taken by the MPCA must be supported by substantial evidence given the record in the matter. See Minn. Stat (an agency decision that is unsupported by substantial evidence in view of the entire record as submitted may be overturned). As interpreted by the MPCA, if there is substantial evidence supporting an MPCA decision, it must be upheld. Similarly, if there is a reasonable assurance that the action will result in the given standard being met, the MPCA s action must be upheld. The MPCA also notes that although Congress did modify the first paragraph of 33 U.S.C to remove the reasonable assurance language, the reasonable assurance language remains in the statute in other places. Paragraph 3, for example, notes that a state, after having received notice of changes to a previously certified facility, can notify the federal agency that there is no longer reasonable assurance that there will be compliance.... See 33 U.S.C. 1341(a)(3). Similarly, in Paragraph 4, the statute notes that a state can review the manner in which a facility or activity will be operated (if not governed by a federal operating license or permit) to ensure that conditions are being met. If the certifying state notifies the Administrator that the operation will violate applicable effluent limitations, and the license or permit is suspended, it shall remain suspended until notification is received from the certifying State... that there is reasonable assurance that such facility or activity will not violate the applicable provisions.... See 33 U.S.C. 1341(a)(4). The fact that Congress left the reasonable assurance language intact suggests strongly that Congress did not intend for a different standard to be applied when it modified the statute in a manner that removed the phrase in the initial sentences. As a result, the MPCA finds that its rule (and 40 CFR 121.2) is adequate and that its finding is not legally deficient. In this comment, NWF et al. also raises the issue of whether the MPCA should have performed a nondegradation review with regard to this certification. The MPCA did a nondegradation review when it issued its first ballast water SDS permit in September At that time, the MPCA concluded that the vast majority of ballast water discharges in Minnesota waters of Lake Superior are neither new nor expanded discharges because the discharges pre date the designation of Lake Superior as an ORVW. The MPCA further concluded that even if ballast waters were considered new or expanded, there is no feasible and prudent alternative to such discharge because ships cannot operate without discharging ballast water and stopping shipping on the Great Lakes would be neither feasible nor prudent. Moreover, the MPCA concluded that by including the most stringent technologically achievable treatment limits, the controls in the permit satisfy the nondegradation rule requirements. The MPCA s decision to issue the 2008 state ballast water permit was challenged by the Minnesota Center for Environmental Advocacy (MCEA). The Minnesota Court of Appeals upheld the MPCA s decision to issue the permit, including its handling of the nondegradation analysis. See In The Matter Of A Request For Issuance Of The SDS General Permit MNG For Ballast Water Discharges From Vessels Transiting Minnesota State Water Of Lake Superior, 769 N.W.2d 312 (Minn. Ct. Ap. 2009) ( Ballast Permit Case ). NWF et al now argues that the MPCA should have conducted a nondegradation review in connection with this certification decision. In making this assertion, NWF et al. essentially renews arguments that were addressed and rejected by the Minnesota Court of Appeals in the Ballast Permit Case. The MPCA finds that nothing significant has changed between the issuance of the 2008 ballast water permit as challenged in the Ballast Permit Case, and today. As a result, the MPCA concludes that a 10

119 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification nondegradation analysis, if conducted, would reach the same conclusion as before. For this reason, it was reasonable for the MPCA to rely on its prior conclusions in deciding to issue this conditional certification. Comments 8 2 to 8 5 are combined because of the common theme regarding implementation of a numeric water quality based effluent limitation. Comment 8 2: MPCA should revise Condition #2 by adding a numeric water quality based effluent limitation ( WQBEL ) for AIS that will prevent the introduction or spread of new aquatic nonindigenous species and the establishment or spread of new AIS. Comment 8 3: Revise Conditions #2 and 6 by adding a requirement that all vessels meet the WQBEL, including oceangoing vessels, vessels operating exclusively within the Great Lakes ( lakers ), vessels travelling short distances, vessels that can carry no more than 8 cubic meters of ballast water, and unmanned barges. Comment 8 4: Revise Conditions #2 and 6 by adding a requirement that all vessels meet the WQBEL on or before the following deadlines: New small vessels (built on or after November 30, 2012): January 1, 2014 New large vessels (built on or after November 30, 2012): January 1, 2015 Existing vessels (built before November 30, 2012): January 1, 2016 Comment 8 5: Revise Condition #7 by imposing monitoring and reporting requirements that will make compliance with the WQBEL practically enforceable. Response: After careful review of the available data and studies completed to further define the threshold at which point the introduction of nonnative species impacts the quality of Waters of the State, MPCA and Minnesota Department of Natural Resources (DNR) staff are unable to conclusively determine a numeric standard which would definitively protect water quality and an unaltered species composition of the ecosystem. This determination is consistent with the National Academies National Research Council 2011 report Assessing the Relationship Between Propagule Pressure and Invasion Risk in Ballast Water. Therefore, a numeric WQBEL in not included in the final 401 certification. 9. Comments by Craig Pagel, Iron Mining Association of Minnesota. Letter received, May 28, Comment 9 1: The commenter expresses that the EPA 2013 VGP and the US Coast Guard Final Rule adequately protect the Great Lakes from aquatic invasive species, and appropriately focus on the oceangoing vessels. The commenter states that the best management practices applicable to Lakers, as included in the 2013 VGP, are appropriately protective against aquatic invasive species. Response: The MPCA agrees with the commenter that the EPA 2013 VGP and the US Coast Guard Final Rule are more protective than previous actions, are feasible and practical and economically achievable. However, a 401 Certification can only be granted with no conditions if the Permit fully complies with all Minnesota water quality standards. 11

120 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification Comment 9 2: The commenter expresses concern that though residents of the area want to protect their environment, those that work for the iron mine companies, as well as those products and services dependant on the iron mining industry would be negatively affected by requirements in excess of the federal conditions. Response: Comment noted. Comment 9 3: The commenter states that other Great Lakes states have not included more stringent requirements for ballast water treatment systems on Lakers. The commenter requests that the MPCA 401 Certification be consistent with federal requirements regarding Lakers. Response: Please see response to comment Comments by Edward J. Kuss, International Association of Machinists and Aerospace Workers. Letter received May 28, Comment 10 1: The commenter emphasizes the economic impact the Great Lakes Shipping Industry has on the state of Minnesota and supports the Lake Carrier s Association comment letter, (attached to this comment letter). Response: Comment noted. Comment 10 2: The commenter requests that Minnesota align the 401 Certification and SDS permit with the IMO standards, the US Coast Guard Final Rule and the EPA 2013 VGP. Response: The MPCA agrees with the commenter that the EPA 2013 VGP and the US Coast Guard Final Rule are more protective than previous federal actions, are feasible and practical and economically achievable. However, a 401 Certification can only be granted with no conditions if the Permit fully complies with all Minnesota water quality standards. Comment 10 3: The commenter states there are no available treatment technologies for installation for Lakers. Further, the commenter states that ballast is one of many means of introducing and spreading aquatic invasive species. Response: See responses to Comments 2 4 and 2 8. Comment 10 4: The commenter states that the EPA and the US Coast Guard have determined treatment technologies are currently unavailable for Lakers. The commenter adds that several Great Lakes states have reached the same conclusion. Response: See responses to Comments 2 4 and 2 8. Comment 10 5: The commenter states that due to the publication of the US Coast Guard Final Rule and the EPA 2013 VGP, federal standards have been established and therefore Minnesota should either grant the 401 Certification with no conditions and modify the SDS Ballast Water Discharge 12

121 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification General Permit to become consistent with federal requirements, or waive the 401 Certification and rescind the SDS permit. Response: Please see comment 2 3. Comment 10 6: The commenter states that they are in support of MPCA s conclusions regarding the determination of a WQBEL for ballast water discharges at this time. Response: Comment noted. 11. Comments by Bruce Bowie, Canadian Shipowners Association. Letter received May 28, Comment 11 1: The commenter expresses concern with the implementation schedule as currently written in the 401 Certification for new vessels. The commenter states that the schedule, as written, is not achievable, as treatment systems are not commercially available for operations in Lake Superior. The commenter requests ongoing discussion with MPCA to find a solution to this issue in the short term. Response: The MPCA recognizes the potential problems associated with the treatment technology implementation schedule for new vessels in the SDS Ballast Water General Permit. We will evaluate this requirement during permit reissuance. In the mean time, we encourage vessel owners that may be subject to this requirement to immediately contact MPCA so that we may address new vessels on a case by case basis. Comment 11 2: The commenter suggests Minnesota should follow the treatment implementation schedule found in the US Coast Guard Final Rule. If MPCA is unable to do this, the commenter requests the implementation schedule of treatment technology in Minnesota s 401 Certification be modified to include provisions for technologies being validated at a freshwater testing facility according to EPA Protocol, commercially available, US Coast Guard type approved for use in Lake Superior and viable for installation in specific vessel types. The commenter requests that the condition in the 401 Certification clearly consider and reflect dry docking schedules for vessels. Response: The 401 Certification requires vessels to acquire and comply with the current SDS Ballast General Permit. The current SDS Ballast General Permit will expire in September The MPCA plans to begin the reissuance process in 2012 and will review all requirements, including applicability, technology availability, and schedule for compliance with discharge standards, during the reissuance of the permit. Comment 11 3: The commenter states that they are in support of MPCA s conclusions regarding the determination of a WQBEL for ballast water discharges at this time. Response: Comment noted. Comment 11 4: The commenter states that Condition 3 of the 401 Certification is confusing and may cause challenges for those vessels that originate from certain coastal ports where vessels may have difficulty locating a suitable area to conduct exchange in a timely manner without significant 13

122 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification deviation in routing. The commenter requests a reduction in the distance to 25 nautical miles from shore required for these vessels and, preferably, for MPCA to align the 401 Certification with the US Coast Guard Final Rule. Response: The MPCA has received several comments regarding the requirement for vessels operating within the Exclusive Economic Zone (EEZ) to conduct ballast water exchange after treatment systems have been installed. After further review the MPCA has determined that the requirement, as written, may not apply to any vessels. In addition, while discussed among several states, no other great lakes state has included such a requirement in a draft 401 certification. The MPCA has therefore removed Requirement #3 entirely. Requirement #5 Emergency Control of Ballast Water Discharge provides adequate mechanism to address the environmental concerns associated with this requirement until further analysis and collaboration can occur. Comment 11 5: The commenter expresses concern that the 401 Certification condition regarding Emergency Control of Ballast Water Discharge presents uncertainty to vessel operations. The commenter requests the condition be further developed with other stakeholders over the next year and include this condition as a part of the reissued SDS Ballast Water Discharge General Permit. Response: The MPCA staff have determined that this requirement effectively serves as an interim WQBEL prior to a numeric WQBEL calculation that will be protective of state water quality and until the numeric WQBEL is fully implemented. The MPCA staff will work with vessel owners to, as much as possible, remove uncertainty regarding the implementation of this requirement. Comment 11 6: While the commenter does not oppose the condition regarding BMPs applicable to vessels confined to upstream of the Welland Canal, the commenter questions the appropriateness of using the Welland Canal as a demarcation line. Response: Comment noted. The MPCA staff provided similar comment to the EPA when this provision was included in 2013 VGP. See also response to Comment Comment 11 7: The commenter states the monitoring requirements, as written, may not provide the desired effect and data sought by the MPCA. The commenter supports additional data collection, but believes a more targeted scientific approach is warranted. The commenter suggests the MPCA develop monitoring requirements over the next year, and if appropriate, include these requirements within the reissuance of the SDS Ballast Water Discharge General Permit. Response: See response to Comment Comments by Steven A. Fisher, American Great Lakes Ports Association. Letter received May 28, Comment 12 1: The commenter emphasizes the significant role the transportation companies play in the regional economy and have attached to comments a copy of the report, The Economic Impacts of the Great Lakes St. Lawrence Seaway System, dated October 18, 2011, with a request that the report be included in the file. 14

123 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification Response: Comment noted. The report has been included in the file, as requested. Comment 12 2: The commenter supports the minimization and elimination of the aquatic invasive species problem and supports the IMO standards, as well as ballast water exchange and saltwater flushing. Response: Comment noted. Comment 12 3: The commenter discusses the impetus of state regulatory action regarding ballast water and the consequences of the absence of federal standards. The commenter supports the development of federal regulation to protect the Great Lakes system as a whole, and the commenter supports the US Coast Guard Final Rule as well as the EPA 2013 VGP. In light of this federal action, the commenter suggests the State of Minnesota should remove state rules applicable to ballast water and defer to federal regulations. Response: Comment noted. Comment 12 4: The commenter is concerned with the regulation of Lakers within the SDS Ballast Water Discharge General Permit, as part of Condition 1 of the 401 Certification. The commenter states that due to the unique nature of Laker vessels, the engineering challenges, and the minor risk compared to high cost of compliance for Lakers, that MPCA review the inclusion of Lakers within the SDS Ballast Water Discharge General Permit. Response: Lakers are included in the SDS Ballast Water Discharge General Permit, and since this SDS permit was written to be consistent with Minnesota requirements, not including this permit within the 401 Water Quality Certification would not ensure compliance with Minnesota water quality standards. The next iteration of the SDS permit will be reviewed in 2013, prior to its expiration. Comments regarding the next iteration of the SDS permit may be submitted and reviewed at that time. Comment 12 5: The commenter states that the implementation schedule associated with the IMO treatment technology requirements is no longer reasonable for any vessels. The commenter states that the US Coast Guard type approval process will be sought by equipment vendors, making those technologies with type approvals most utilized. The commenter explains that the type approval process is currently being established by the US Coast Guard, and has been estimated to require months. The commenter states that following this process, production and installation of equipment will require additional time before fleets may be entirely retrofitted. Response: Please see responses to Comments 4 5 and Comment 12 6: The commenter expresses concern that new vessels do not have viable treatment technology options to meet installation requirements due to the absence of any type approved technologies from the US Coast Guard. The commenter states that vessels that cannot meet the requirements of Minnesota s SDS permit will no longer visit Minnesota ports. The commenter requests that the schedule included in the SDS permit be reevaluated and extended. 15

124 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification Response: The 401 Certification, as written, requires vessels to acquire and comply with the current SDS Ballast General Permit. The current SDS Ballast General Permit will expire in September 2013, so the SDS Ballast General Permit requirements will be reevaluated prior to the January 1, 2016, date. Comment 12 7: The commenter requests the MPCA reopen the SDS permit for modification as soon as possible rather than permit expiration in September Response: The MPCA staff plan to begin work on the reissuance of the SDS permit in the next few months which is as soon as possible. Comment 12 8: The commenter states that they support the continued requirement of ballast water exchange following the installation of onboard treatment technology. The commenter believes that, while there is no research quantifying the benefits of ballast water exchange plus treatment, that it may be a viable option that exceeds the IMO standard. Response: Comment noted. 13. Comments by Gary Croot, International Maritime Environmental and Safety Associates, Inc. Letter received May 28, Comment 13 1: The commenter expresses that the MPCA should make its 401 Certification consistent with the US Coast Guard Final Rule. The commenter states that the EPA 2013 VGP and the US Coast Guard Final Rule establish internationally recognized standards which reduces the risk of invasion from aquatic invasive species, are environmentally protective, are feasible and practical, thus ensuring compliance, and are economically achievable for the industry. Response: See response to Comment 2 6. Comment 13 2: The commenter states that the ballast water exchange (BWE) and salt water flushing requirements (Requirements 3 and 4) are confusing. The commenter states that as currently written, vessels arriving to Minnesota waters from US and Canadian east coast ports would not be required to conduct exchange, but vessels arriving into Minnesota waters from St. Lawrence Seaway ports might be required to conduct an oceanic exchange. The commenter requests the provided administrative and language changes to the requirements that would capture the higher risk vessel voyages (such as those originating in east coast fresh water ports), while eliminating vessel voyages which present little to no risk. Response: See response to Comment Comment 13 3: The commenter states that there is a lack of available ballast water management systems available to Lakers due to the unique characteristics of the Lakers, including high discharge flow rates, short voyages, operation within wide temperature ranges, the potential for corrosion damage from biocides used as treatment, and fresh water considerations. No treatment technologies are foreseen at this time. The commenter states that other Great Lakes states have also concluded that no treatment technologies are currently available for Lakers. Therefore, the 16

125 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification commenter requests that the requirements for treatment technology be aligned to the US Coast Guard Final Rule. Response: See response to Comments 2 4 and 2 8. Comment 13 4: The commenter states that the monitoring requirements as proposed are too restrictive, particularly for those vessels not equipped with ballast water management systems, and may not appropriately inform agencies regarding future regulatory decision making. The commenter recommends Minnesota s proposed monitoring requirements be amended to focus more on scientific studies for data gathering instead of the proposed annual monitoring requirement for each ship and that the language be less restrictive regarding the exact type of required monitoring, and instead allowing the option of other testing protocols which may be developed by the US, Canada, other port states, other oversight agencies, such as classification societies, academia or the vessel owners. Specifically, the commenter recommends splitting the monitoring requirements into three sections, as provided, to account for vessels with installed treatment systems, vessels without installed treatment systems, and lakers. Response: See response to Comment 2 5. Comment 13 5: The commenter discusses the impetus of state regulatory action regarding ballast water and the consequences of the absence of federal standards. The commenter supports the development of federal regulation to protect the Great Lakes system as a whole, and the commenter supports the US Coast Guard Final Rule as well as the EPA 2013 VGP. The commenter states concern regarding minor differences between the federal regulations and IMO standards and Minnesota s SDS permit and 401 Certification. The commenter recommends that MPCA incorporate by reference the entire US Coast Guard Final Rule into the 401 Certification. Response: Comment noted. Comment 13 6: In light of the availability of the US Coast Guard Final Rule and EPA 2013 VGP, the commenter suggests Minnesota discontinue issuing SDS Permits under the SDS Ballast Water Discharge General Permit and eliminate the SDS Permit in Response: Comment noted. Comment 13 7: Though the commenter acknowledges the potential benefit from requiring a combination of ballast water exchange and treatment, the commenter expresses concern regarding the lack of studies available to support this conclusion, as well as the additional processes which vessel owners must undertake to comply with this requirement. The commenter expresses concern that this requirement may require significant power to operate, resulting in additional air emissions. The commenter states that if MPCA has determined, using the precautionary approach, that ballast water exchange plus treatment is appropriate based on the literature cited by EPA in the Summary of the Basis, the commenter recommends adoption of the parameters in the 2013 VGP, Section , (i.e. ballast water exchange and treatment is required only for those vessels whose ballast water originated from a port with a salinity of <18 PSU). 17

126 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification Response: It was determined that current US Coast Guard and St. Lawrence Seaway regulation have reduced risk of new invasions and should remain in place until actual scientific data demonstrates that less stringent ballast water exchange requirements are similarly protective. Due to a lack of information, the MPCA staff are unable to support the less stringent ballast water exchange requirements proposed by the EPA in the 2013 VGP. Comment 13 8: The commenter states concern regarding minor differences between the federal regulations and IMO standards and Minnesota s SDS permit and 401 Certification, including a minor difference in organism size classes and a lack of definitions section to avoid confusion and misinterpretation. Additionally, the commenter states it is likely that the IMO and US Coast Guard will adopt an instantaneous maximum or time weighted average as the limit type for discharges, due to a variety of factors, including the difficulty in conducting a ballast water discharge sample during the entire course of the ballast water discharge. The commenter recommends the MPCA adopt a definitions section and the limit type and sample type which are adopted by the US Coast Guard to ensure consistency. Response: See response to Comment 2 6. Comment 13 9: The commenter states that they are in support of MPCA s conclusions regarding the determination of a WQBEL for ballast water discharges at this time. Response: Comment noted. Comment 13 10: Regarding the Emergency Control condition, the commenter is unclear as to which vessels this condition is applicable. The commenter states that it is not possible for most Lakers to safely conduct ballast water exchange, but, paragraph 5.b. appears to identify all Lakers as high risk. In addition, paragraph 5.c. discusses identification of alternative locations for discharge of the high risk ballast water which the commenter states also would not be applicable or appropriate for Lakers. The commenter requests that in paragraph 5.e, ballast water management systems which have already been type approved by the Coast Guard should also be included in addition to treatment technologies which are identified as promising technology. Response: See response to Comment Comment 13 11: The commenter requests the basis for the determination of the line of demarcation for the Lakers as the Welland Canal, and recommends the development of definitions which incorporates the definition of Great Lakes in 33 CFR This would define the Great Lakes as extending to the entrance to the St. Lawrence River at or near Anticosti Island. In addition, the commenter requests clarification regarding the term confined, as the commenter states that many vessels are capable of transiting through the Welland Canal but normally do not. Based on this, the commenter suggests the term confined to be changed to Lakers operating exclusively in the Great Lakes. Response: See response to Comment

127 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification Comment 13 12: The commenter clarifies that the IMO D 2 standard is a numeric standard and not represented by a reduction in organisms, considering a highly concentrated organism concentration could be reduced by percent and not meet the IMO D 2 numeric standard. Response: Comment noted. The percent reduction information is from the 2013 VGP Fact Sheet and used to provide a general perspective of treatment performance required by IMO D 2. Comment 13 13: The commenter clarifies that there are significant differences between the Michigan draft 401 Certification and the Minnesota draft 401 Certification, including Michigan s Certification not applying to Lakers, whereas Minnesota s does, and Michigan s more stringent standard which applies in Response: Many of the differences noted are established in Minnesota s SDS Ballast Water General Permit. We will re evaluate all permit requirements when the permit is reissued in Comment 13 14: Regarding comments submitted by the Clean Water Action Alliance, the commenter clarifies that while it is true that Minnesota Lake Superior harbors do receive the greatest amount of ballast discharge than any other Great Lakes ports, the commenter states that this does not necessarily equate to a specific risk of invasion. Invasion risk relates to a number of factors, detailed in the National Academies of Sciences report. The commenter further states that though Lake Superior receives the most ballast water discharge than any other Great Lake, Lake Superior is the least invaded. Response: Comment noted. Comment 13 15: Regarding comments submitted by the Clean Water Action Alliance related to increasing costs for additional aquatic invasive species, the commenter states that additional invasive species do not necessarily equate with continued additional spending required to combat these invasions. Response: Comment noted. Comment 13 16: Regarding comments submitted by the Clean Water Action Alliance related to a recommendation to conduct a bi annual review of treatment technologies available, the commenter states that this type of review and report would likely cost $4 5 million and months. In addition, since the Coast Guard is required to conduct a similar study as part of its Final Rule, the commenter argues that this recommendation would be redundant. Response: Comment noted. Comment 13 17: Regarding comments submitted by the Clean Water Action Alliance related to taking on ballast water while at pier, the commenter emphasizes that taking on ballast while at pier is necessary to operate a vessel safely and that safe operation of a vessel should be supported by state and federal regulation. Response: Comment noted. 19

128 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification Comment 13 18: Regarding comments submitted by the Clean Water Action Alliance related to tank sediments, the commenter emphasizes that while these sediments do contain invasive species, contrary to the Clean Water Action Alliance comments, the commenter states this sediment does not impede the ballast water treatment. The commenter states that the treatment standard must be complied with regardless of source water organism concentration, tank sediment or any other factor. Response: Comment noted. Comment 13 19: Regarding comments submitted by the Clean Water Action Alliance related to a practicable standard, the commenter states that after a multi year rulemaking process, the Coast Guard determined the only practicable standard is the IMO D 2 standard, as those are the numerical levels which can be achieved by treatment systems, though treatment systems may continue to work toward elimination of all organisms within ballast water. Response: Comment noted. Comment 13 20: Regarding comments submitted by the Clean Water Action Alliance related to New York State s 2011 requirements, the commenter states that as of the May 16, 2012 draft 401 Certification, New York withdrew its more stringent standards, requiring the IMO D 2 standard as the most practicable. Response: Comment noted. Comment 13 21: Regarding comments submitted by the Clean Water Action Alliance related to bench testing of NaOH treatment and other technologies to meet standards more stringent than the IMO standard, the commenter clarifies that these technologies, specifically NaOH treatment, is being developed for emergency treatment and should not be confused with use as an ongoing treatment which could be tested to meet a more stringent standard. Response: Comment noted. Comment 13 22: Regarding comments submitted by the Clean Water Action Alliance related to a requirement for an emergency back up system in case of installed technology failure, the commenter states that since emergency systems have already been in use and operate effectively, requiring additional back up systems would be unnecessary. Response: Comment noted. Comment 13 23: Regarding comments submitted by the Clean Water Action Alliance related to the schedule of implementation of ballast water treatment, the commenter states that depending on when the IMO Ballast Water Management Convention is ratified, more than 60,000 vessels will be required to install ballast water onboard treatment. This will take time, workforce, engineering and design, and equipment to complete. 20

129 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification Response: Comment noted. Comment 13 24: Regarding comments submitted by the Clean Water Action Alliance related to the establishment of a Great Lakes regional or state specific standard, the commenter states that because the number of vessels which operate in the Great Lakes is a small percentage of the global shipping market which must install treatment technologies to meet the IMO standard. The commenter states a precise standard that is Great Lakes or state specific would not be reasonable for which a treatment technology developer to design treatment systems. Response: Comment noted. 14. Comments by Caroline Gravel, Shipping Federation of Canada. Letter received May 28, Comment 14 1: The commenter supports the IMO ballast water treatment standard and MPCA s inclusion of this standard. However, the commenter encourages the MPCA to follow the schedule set out by the IMO, EPA and US Coast Guard instead of the schedule currently included in the SDS Ballast Water Discharge General Permit. In addition, the commenter requests that treatment technology required for new vessels should be applicable to those constructed on or after December 1, 2013, as per the US Coast Guard s schedule. Response: The requirements noted are established by the SDS Ballast General Permit. The current SDS Ballast General Permit will expire in September The MPCA plans to begin the reissuance process in 2012 and will review all requirements, including consistency with similar regulations and schedule for treatment technology implementation during the reissuance of the permit. Comment 14 2: The commenter suggests an alternate implementation schedule. This schedule would require oceangoing vessels constructed prior to December 1, 2013 to install treatment systems on the vessel s first scheduled dry docking date after January 1, 2014, and after the US Coast Guard and EPA have approved at least 5 treatment systems for the Great Lakes, or a date prescribed either by the US Coast Guard s Final Rule or the EPA s VGP, whichever comes first. For oceangoing vessels constructed after December 1, 2013, treatment systems shall be installed either as prescribed in the US Coast Guard s Final Rule or the EPA s VGP, whichever comes first. The commenter states this proposed schedule would define terminology consistently between the state and federal agencies and would maintain greater consistency, while allowing the potential for a more aggressive schedule of treatment installation, based on technological availability. Response: In addition to the response to Comment 14 2, the MPCA staff appreciates proposed language that promotes the installation of treatment technology as soon as possible. Comment 14 3: While the commenter agrees with MPCA regarding the inability to determine a WQBEL at this time, the commenter expresses concern with language from the 401 Certification encouraging vessel owners to pursue the most efficient treatment systems possible to potentially needing to upgrade systems upon the determination of a WQBEL. The commenter states that the suggestion that treatment systems may need to be upgraded upon the determination of a WQBEL reduces the regulatory certainty that the commenter states is necessary for shipowners and operators to have to install treatment systems. 21

130 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification Response: Comment noted. Comment 14 4: The commenter states that they accept the requirement of ballast water exchange and flush in addition to treatment. However, the commenter points out that while current research has pointed to a further reduction in risk for ballast water exchange and treatment as compared to treatment alone, there is no published information regarding the results of land based tests undertaken at the Great Ships Initiative or any ship board tests. The commenter requests an assessment be done of how this requirement may impact shipboard crews, especially in how it may conflict with requirements of the Convention on Standards of Training, Certification and Watch keeping. Response: The requirement for ballast water exchange for vessels operating only within the EEZ has been removed. As for vessels with voyages originating outside the EEZ, the ballast exchange requirement effectively serves as an interim WQBEL prior to a numeric WQBEL calculation that will be protective of state water quality until the numeric WQBEL is fully implemented. This requirement requires operation of a treatment system that meets IMO D 2 requirements in conjunction with ballast water exchange or flushing. This interim WQBEL, justified partly by the known effectiveness of exchange and flushing alone and partly by recent research by Canada s Department of Fisheries and Oceans on the benefits of combining exchange and flushing with treatment. The requirement also allows exceptions if the master of the vessel determines that compliance with this condition would threaten the safety or stability of the vessel, its crew, or its passengers because of adverse weather, equipment failure, or any other relevant condition. Comment 14 5: The commenter requests further definition of high risk ballast water, regarding the Emergency Control condition of the 401 Certification. The commenter is concerned this requirement may be duplicative of the ballast water exchange requirement which already applies to all vessels which transit to and from overseas ports. Response: A high risk ballast water is one that has been collected in an area that has been identified as a source area for nonindigenous species that, in the opinion of the MPCA in consultation with the DNR, poses an enhanced risk for introduction of that species into Minnesota waters. A ballast water can also be determined to be high risk if it was collected by a vessel with design limitations that prevent effective ballast exchanges. Comment 14 6: The commenter requests that monitoring requirements not be added to Minnesota s 401 Certification and instead any test results required by the EPA 2013 VGP be made available to Minnesota. Response: The 2013 VGP does not require biological monitoring for the organisms defined in the IMO ballast discharge limitations. Minnesota s 401 Certification states that vessels that are required by the 2013 VGP to install treatment technology must monitor ballast water discharges at least once annually for the IMO biological parameters, which will provide data regarding whether the installed treatment technologies are working to adequately meet the IMO standards. 22

131 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification Since vessels operating exclusively in the Great Lakes are not required by the 2013 VGP or the US Coast Guard Final Rule to install ballast water treatments systems at this time, Minnesota s 401 Certification requires these vessels to have the capacity to collect organism samples from ballast water discharges. Monitoring of total composition and enumeration of all organisms greater than or equal to 10 micrometers in size will be required a minimum of once annually. Alternatively, vessels may propose and complete a ballast discharge biological study approved by the MPCA. The study must include actual discharge data representing designated vessels that may discharge native and non native organisms into Minnesota waters. The purposes of the study must include an evaluation of the risk that ballast discharges pose to Minnesota waters. Either alternative may be completed by vessels operating exclusively in the Great Lakes. Comment 14 7: The commenter expresses interest in consistency of regulation among the Great Lakes and federal agencies. The commenter further states that if Minnesota believes the 2013 VGP can be certified with the 401 Certification, then Minnesota should also consider the elimination of the SDS Ballast Water Discharge General Permit. Response: Comment noted. Please also see response to Comment Comments by Jean Aubry Morin, The St. Lawrence Seaway Management Corporation. Letter received May 28, Comment 15 1: The commenter supports the adoption of the IMO standards for treatment technology requirements and supports the improvement of certainty for all stakeholders. Response: Comment noted. Comment 15 2: The commenter is concerned with the implementation schedule required for new vessels within the SDS permit, as included in Condition 1 of the 401 Certification. The commenter states vessels cannot comply with the implementation schedule due to the lack of treatment technology available to vessels. Further, the commenter states that should technology become available in the short term, certification and implementation processes would still impede compliance with the schedule as written. The commenter requests that MPCA align implementation schedule requirements with the US Coast Guard s Final Rule. In addition, the commenter requests that Minnesota s 401 Certification include provisions for the implementation schedule, including that treatment technologies are tested at freshwater testing facilities according to EPA Protocol, are commercially available, are US Coast Guard type approved for Lake Superior, are viable for installation for unique vessel types, and that there is availability of drydock facilities after the required dates. Response: Please see response to Comment 2 2. Comment 15 3: While the commenter does not oppose the condition regarding BMPs applicable to vessels confined to upstream of the Welland Canal, the commenter questions the appropriateness of using the Welland Canal as a demarcation line. The commenter recommends determining requirements for vessels according to classification or type, rather than geographical location. 23

132 EPA 2013 Draft Vessel General Permit Minnesota Responses to Comments on the Draft 401 Water Quality Certification Response: See response to Comment Comment 15 4: The commenter states that Condition 3 of the 401 Certification causes challenges for those vessels that originate from certain coastal ports where vessels may have difficulty conducting exchange without significant deviation in routing. The commenter requests a reduction in the distance to 25 nautical miles from shore required for these vessels. Response: See response to Comment Comment 15 5: The commenter incorporates a statement from The Shipping Federation of Canada, which is summarized to state that they accept the requirement of ballast water exchange and flush in addition to treatment. However, the statement points out that while current research has pointed to a further reduction in risk for ballast water exchange and treatment as compared to treatment alone, there is no published information regarding the results of land based tests undertaken at the Great Ships Initiative or any ship board tests. The statement requests an assessment be done of how this requirement may impact shipboard crews, especially in how it may conflict with requirements of the Convention on Standards of Training, Certification and Watch keeping. Response: See response to Comment Comments by Martin Loken/Denis Lebel, Consulate General of Canada/Minister of Transport. Letter received June 8, Comment 16 1: The commenter states a shared interest in reducing the risk of aquatic species invasions to the Great Lakes and is interested in continuing to strengthen regulations by implementing consistent rules. The commenter encourages Minnesota to align certification requirements with the IMO requirements. Response: Comment noted. The IMO requirements have been incorporated into Minnesota s SDS permit, and also the 401 Certification of the 2013 VGP. 24

133

134

135

136 ATTACHMENT 3 PROPOSED FINAL: DATE Ms. Tinka G. Hyde, Director Water Division U.S. Environmental Protection Agency Region 5 77 West Jackson Boulevard (W 15J) Chicago, IL Dear Ms. Hyde: As requested in your letter dated November 16, 2011, the Minnesota Pollution Control Agency (MPCA) has examined the U.S. Environmental Protection Agency's (EPA) proposed 2013 National Pollutant Discharge Elimination System (NPDES) general permit for Commercial and Large Recreational Vessels (2013 VGP) and Small Vessel General Permit (svgp) to determine whether it can certify the permits under Section 401 of the Clean Water Act (CWA). The MPCA bases its certification upon an evaluation of the information provided in the proposed permit, technical fact sheet, other materials contained in Docket ID Nos. EPA HQ OW and EPA HQ OW , and consultation with other Great Lakes States. This letter is submitted by the MPCA under authority of Section 401 of the CWA (33 USC 1251 et seq.), Minn. Stat. chs. 115 and 116, and Minn. R through The State of Minnesota takes its responsibility to protect Lake Superior very seriously. We support the spirit and practice of eliminating pollutant discharges to Lake Superior, including pollutant discharges from vessels. The United Nations, the International Joint Commission (IJC), the Great Lakes states, the U.S. government, Canadian provinces and federal governments agree that Lake Superior s fragility and protection are a global priority. The IJC called on the governments to designate Lake Superior as a demonstration zone for the zero discharge concept in Since answering that call, the states and federal governments have invested millions of dollars and thousands of staff hours to develop policies and practices to protect this Lake. Minnesota was one of the original signatories to the 1991 Lake Superior Binational Program. It was also one of the first states to adopt the Great Lakes Compact, the Great Lakes Initiative and to regulate ballast water discharges. The state has supported its U.S. and Canadian partners in their effort to restore degraded areas and to designate and permanently protect islands, bays, and open water areas of Lake Superior. Our Canadian partners recently designated 3,861 square miles of Lake Superior as Marine Conservation Area. Isle Royale, a national park off Minnesota s coast, has also been designated a United Nation s Biosphere Reserve, adding further credence to the notion that Lake Superior is unique and internationally significant. The MPCA and the Minnesota Department of Natural Resources (DNR) have worked closely in assessing the proposed federal permit. We agree that invasive species are a serious problem for Minnesota and this permit presents an opportunity to address this threat to our waters. While the primary focus of the federal permit is vessels that travel in salt water, the vast majority of ballast water discharged in Minnesota comes from vessels that travel in fresh water. To adequately protect Minnesota waters from ballast water discharged from both fresh and saltwater vessels, the MPCA has included additional regulatory requirements to supplement the proposed federal permit. These requirements will further protect Minnesota waters.