Autumn2012 / Reprinted from LNGINDUSTRY

Non-indigenous species (NIS) are organisms that have been transported by human activities to regions where they did not historically

occur, and have since established reproducing wild populations1. Once established, NIS can have serious human health, economic and environmental impacts in their new environment.

Commercial shipping continues to be an important transport mechanism for NIS in marine, estuarine and freshwater environments,

contributing up to an estimated 80% of invertebrate and algae introductions to North America2,5. Vessels take on, discharge or redistribute ballast water during cargo loading and unloading, as they take on and burn fuel, when they operate in rough seas, or as they travel through coastal waterways. This transfer of ballast water from source to destination ports results in the movement of organisms from one region to the next.

MUDDY WATERS

Maurya B. Falkner, MBF Consulting, USA, outlines the regulatory regime in North America for dealing with ballast water.

LNGINDUSTRY / Reprinted from Autumn2012

For the majority of commercial vessels, ballast water exchange or retention are the primary management method to reduce the transfer of organisms. However, ballast water exchange is generally considered an interim tool because of its variable effectiveness and operational limitations. The effectiveness of ballast water exchange at reducing organisms in tanks ranges from 50% to 99%3, 6,10. For some vessels (many unmanned barges for example), ballast water exchange cannot be conducted without compromising vessel or crew safety.

For these reasons, regulatory agencies and the commercial shipping industry have looked towards the establishment of ballast water performance standards and the development of ballast water management systems (BWMS). For regulators, such systems would provide NIS prevention, even under adverse conditions that would preclude exchange, and could provide a higher level of protection from non-indigenous species in general. For the shipping industry, the use of effective BWMS might allow voyages to proceed along the shortest available routes, without having to conduct exchange. For many vessels, this will mean safer conditions for crews, as well as savings in time and money.

The international community, the US government and a number of US states have recently made great strides towards the development of a standardised approach for the management of discharged ballast water. However, existing guidelines, legislation and standards still vary by jurisdiction. This is especially true for the US, where two federal agencies and several states currently regulate ballast water management. While there are obvious similarities among all these rules and permits, key differences do exist, creating a complicated and confusing regulatory landscape for vessels operating in US waters.

US federal legislation and programmesBallast water discharges in the US are regulated at the federal level by both the US Coast Guard (USCG) and the US Environmental Protection Agency (EPA). Between 1990 and early 2009, ballast water was regulated at the federal level solely by the USCG through rules (Title 33 of the Code of Federal Regulation Part 151) developed under the authority of the non-indigenous Aquatic Nuisance Prevention and Control Act of 1990, as reauthorised and amended by the National Invasive Species Act of 1996. The regulations include requirements for vessels arriving from outside of the US Exclusive Economic Zone to conduct ballast water exchange prior to discharge in US waters.

On 23 March 2012, the USCG finalised regulations that establish federal performance standards for living organisms in ships’ ballast water discharged in US waters. This rule went into effect on 21 June 2012. The USCG established performance standards (Table 1), which are numerically comparable to those established by the International Maritime Organization (IMO) Ballast Water Convention6 and will be implemented upon delivery for new build vessels constructed on or after 1 December 2013. Existing vessels (those constructed before 1 December 2013) must meet the standard as of the first scheduled dry docking after 1 January 2014 or 2016, depending on vessel ballast water capacity.

While the USCG performance standards are ‘numerically’ comparable to the IMO Ballast Water Convention (Table 1), the type approval procedures outlined in the USCG rule are potentially more rigorous than the guidelines recommended by IMO8. This could mean that BWMS with foreign type approval will not fare so well when assessed using the USCG approval process. The USCG type approval process includes requirements for land-based and shipboard evaluation of BWMS performance. The land-based testing requires the use of EPA Environmental Technology Verification (ETV) protocols conducted by USCG approved independent laboratories. The ETV protocols utilise strict challenge conditions, testing protocols, statistical analyses and quality assurance protocols9.

The USCG has identified two routes to achieve type approval of BWMS. One is the utilisation of existing test data submitted during the type approval testing for a foreign administration. To utilise this route, the applicant must submit data with an explanation of how their submission meets or exceeds USCG type approval requirements. The other route is for the applicant to use test data from an independent laboratory approved by the USCG. The USCG anticipates that it may take up to three years before independent laboratories are identified and approved and the first BWMS receives USCG type approval.

To address the potential problem created by the installation of foreign approved BWMS prior to the compliance dates in the USCG rule; the USCG has included a provision in the rule to allow for the temporary acceptance of BWMS approved by foreign administrations in accordance with the requirements of the IMO BWM convention. It is important to note that this provision is not type approval, but a bridging strategy to address the potential requirement and the associated compliance dates. USCG AMS acceptances issued to BWMS manufacturers will allow vessels with such installed systems to use that system in lieu

of BWE prior to the vessels’ compliance date for meeting the new BWM requirements, and to continue to use such installed systems in lieu of meeting the discharge standard for up to five years after the vessels’ compliance date. The USCG issued its policy for submission and review of AMS applications on 21 June 2012. It is anticipated that manufacturers will seek formal type approval

Table 1. Ballast water performance standards

Organism size class (units)

IMO USCG US EPA California

>50 µm (/m3) 10 10 10 ND

10 - 50 µm (/ml) 10 10 10 0.01

<10 µm (/100 ml)

250 E. Coli

100 l. enterococci

1 V. cholera

250 E. Coli

100 l. enterococci

1 V. cholera

250 E. Coli

100 l. enterococci

1 V. cholera

<126 E. Coli

<33 l. enterococci

<1 V. cholera

<103 bacteria / 100 ml

<104 viruses / 100 ml

Autumn2012 / Reprinted from LNGINDUSTRY

for BWMS that are accepted as AMS, and some BWMS initially installed and used as AMS will transition to type approval systems.

Finally, the USCG rule includes regular compliance monitoring of BWMS. Compliance assessments will occur during regular vessel inspections, such as port state control inspections for foreign flagged vessels and domestic vessel inspections. The USCG intends to follow its existing compliance monitoring approach, which includes inspection of documents, assessment of crew training and BWMS condition. Ballast water sample collection and analysis will occur if warranted.

Early in 2009, the EPA also began regulating ballast water after a court decision required ballast water and other discharges incidental to the normal operation of vessels to be regulated under the Clean Water Act. Twenty six discharges incidental to the normal operation of vessels are regulated, including ballast water and hull husbandry discharges, and the Clean Water Act expires on 18 December 2013.

On 30 November 2011, the EPA released the draft 2013 vessel general permit (VGP) with an effective date of 19 December 2013. This draft requires vessels to meet performance standards for the discharge of ballast water equivalent to the standards adopted by the USCG (Table 1). The implementation schedule for the permit is similar to that established by the USCG. Vessels constructed on or after 1 January 2012, must meet the standards upon delivery of the vessel (and implementation of the permit, which takes place on 19 December 2013). Existing vessels constructed before 1 January 2012 must meet the standards as of the first scheduled dry dock after 1 January 2014 or 2016, depending on the vessel’s ballast water capacity.

Vessels may comply with the VGP performance standards through the use of ballast water treatment technologies, potable water, the onshore treatment of ballast, or retention of all ballast on board. The 2013 VGP is a four year permit, with an important reopener provision based on technological advances. Since some technologies have already been shown to exceed the USCG standards, stricter standards are on the horizon.

The draft 2013 VGP does not require vessels to use type approved BWMS; rather vessels must meet the discharge standard set forth in the permit. However, it does require vessels to conduct self-monitoring of select bacteria species, as well as self-monitoring of sensors and control equipment, and self-monitoring for residual biocides. The frequency of self-monitoring will be based on the quality of data available for a specific BWMS. USCG type approval is considered ‘high quality’ data; therefore systems without USCG type approval will be required to conduct more frequent BWMS self-monitoring.

The USCG and the EPA signed a Memorandum of Understanding (MOU) to better coordinate efforts to implement and enforce the proposed 2013 VGP requirements. Under the MOU, the two agencies will share information, expertise and provide technical assistance on implementing and enforcing the VGP. Additionally, the USCG will assist with verifying compliance of the VGP for domestic and foreign vessels.

US state legislation and programmesThe National Invasive Species Act and the Clean Water Act allow states to implement standards more stringent than federal standards. As a result, the regulatory landscape has become increasingly complicated and confusing for vessels transiting between various jurisdictions. States have taken two approaches to the implementation of ballast water management and specifically performance standards. Some have specific authority granted by state law to establish performance standards. Others have added specific conditions establishing performance standards to the VGP through the Clean Water Act, Section 401 certification process.

Beginning in 2005, several states (for example, Michigan, Minnesota and Wisconsin) passed legislation requiring discharges of ballast water to meet performance standards ranging from those in the IMO BW Convention, to the California discharge standard (Table 1). Type approval of BWMS is not required, but vessel discharges must meet the state standard. Implementation dates vary, with California requiring certain new built vessels to meet the discharge standard by 2010 and all others by 2016. Most of these legislatively mandated management programmes include reporting, inspections and penalties for non-compliance.

Other states have established ballast water management programmes through the VGP. Section 401 of the Clean Water Act requires that states approve federal permits and allows states to add conditions above and beyond those present in the federal permit. Several states (for example Illinois, Indiana, New York, Ohio and Pennsylvania) included the establishment of performance standards in their 401 certification for the draft 2013 VGP. These standards range from the USCG standard plus exchange, to a standard roughly equivalent to 100 times that of the USCG standard, to California’s discharge standard. Several states have also included additional annual ballast water monitoring and reporting requirements for vessels operating in their waters.

Considerations for the maritime industryTo date, there are 63 BWMS, as opposed to 28 in 2007. The number of systems that have received type approval based on the IMO Guidelines has gone from one in 2007 to 22 in 20124. Many vessel owners are considering the installation of BWMS, but determining how to proceed with BWMS selection can be fraught with anxiety. Vessels operating in US waters face a tangle of rules and permits from both federal and state entities and therefore should consider the following:

l The USCG standards are very similar to the IMO numeric standard. While the standards are numerically comparable, the USCG type approval process is significantly more detailed, rigorous and prescriptive than the IMO guidelines. BWMS with foreign type approval may not be granted USCG type approval.

l USCG standards should be considered the floor. USCG is required to assess stricter standards. The 2013 VGP contains a reopener clause allowing the permit to be

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re-opened and modified during the term of the permit if, among other things, treatment technology has improved such that these improved technologies would justify significantly more stringent discharge standards. BWMS have already been identified that exceed the USCG standard by at least 10 times.

l While type approval is required by the USCG, it is not sufficient. Ballast water discharges must meet the USCG standard.

l Regular compliance monitoring of BWMS will occur. Therefore, comprehensive customer support and crew training is essential.

l It is important to know a vessel’s requirements over its lifetime. The cost to retrofit a BWMS is considerably more than installation during original construction. One should consider all possible operational scenarios. If there is any chance the vessel will operate in US waters, seek out BWMS that exceed IMO standards.

l Verify all claims made by BWMS vendors; not all foreign type approvals are equal.

l Request all data, and remember that USCG type approval will likely not occur until 2015. For expert guidance, regularly consult with the USCG, EPA and states.

References1. Carlton, J.T., “Introduced species in U.S. coastal waters: environmental

impacts and management priorities”, Pew Oceans Commission, Arlington, Virginia, 2001, p. 28.

2. Cohen, A.N. and J.T. Carlton,”Accelerating invasion rate in a highly invaded estuary”, Science, 279:555-558,1998.

3. Cohen, A.N., “Ships’ ballast water and the introduction of exotic organisms into the San Francisco Estuary: Current status of the problem and options for management”, San Francisco Estuary Institute,1998.

4. CSLC (California State Lands Commission), 2012 Assessment of the Efficacy, Availability and Environmental Impacts of Ballast Water Treatment Systems for Use in California Waters.

5. Fofonoff, P.W., G.M. Ruiz, B. Steves, and J.T. Carlton, “In ships or on ships? Mechanisms of transfer and invasion for nonnative species to the coasts of North America”, in: Ruiz, G.M. and J.T. Carlton (eds.) Invasive Species: Vectors and Management Strategies, Island Press, Washington D.C., 2003, pp. 152 – 182.

6. IMO (International Maritime Organization), Ballast Water Management Convention International Convention for the Control and Management of Ships’ Ballast Water and Sediments, International Maritime Organization, London, 2005, p. 138.

7. MacIsaac, H.J., T.C. Robbins, and M.A. Lewis, “Modeling ships’ ballast water as invasion threats to the Great Lakes”, Canadian Journal of Fisheries and Aquatic Sciences, 59:1245-1256, 2002.

8. MEPC, 2008a, Report of the fifth meeting of the GESAMP-Ballast Water Working Group (GESMP-BWWG), Note by the Secretariat, 57/2/10, 25 January 2008.

9. NSF International, Generic Protocol for the Verification of Ballast Water Treatment Technology, EPA/600/R-10/146, Washington D.C., 2010.

10. USCG, Report to Congress on the voluntary national guidelines for ballast water management, Washington D.C., 2001.