Land, Sea, and Air:Major Environmental Changes Underwayfor the Maritime Industry and the Nation’s Waterways

Susan Geiger, Partner

K&L Gates Maritime Group

September 24, 2009

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Land

New Regulatory and Enforcement World

EPA Vessel General Permits

Air emission regulations

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Sea

Major new restrictions on vessel discharges

And more to come

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Air

Air emission restrictions are just beginning

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Land, Sea, and Air

Why Now?

What Now?

What Next?

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Why Now?

Laws to protect our waterways are more than 100 years old

Refuse Act of 1899

Increased global awareness

Climate change Clean and green

Reductions in other sources leaves vessel emissions as a large and growing percentage

Improvements in technologies

Not the best record

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What Now?

Vessel General Permit

Just the skeleton of what is to come

Ballast water

Others

Incorporates “best management practices” as an interim measure

Further EPA “guidance” expected

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What Now?

VGP

Why is this a major change?

Report and make public Inspection and entry Sample and monitor Sign and certify

New enforcement tools

New enforcement personnel

New types of enforcement

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What Now?

VGP Enforcement

Corrective action reporting Treasure trove for citizen suits?

24,000 vessels subject to the permit

If only 1% have a violative condition each year, that equals 240 enforcement actions

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Judicial Appeals Relating to the VGP in Federal and State CourtsForum Summary of Argument Status

D.C. Circuit: Lake Carriers, et al. v. EPA, No. 09-1010

VGP is arbitrary and capricious Stayed by order of court until 10/15/09; parties are discussing potential settlement

Minnesota Court of Appeals: Nat. Wildlife Fed. V. Minn. Pollution Control Agency, No. A08-2196

Minnesota had insufficient time to properly certify the VGP

Fully briefed, awaiting court decision

Michigan Circuit Ct. Ingham Cty.: Nat. Wildlife Fed. v. Chester, No. 08-1652

Decision to exempt Lakers from ballast water condition was not arbitrary or capricious

Industry brief filed June 29, 2009

New York Supreme Court/App. Div.: Port of Oswego Authority v. Grannis, No. 10296-08

Did not submit our own briefs; petitioners arguments were based on federal 401 requirements and state law

NY Supreme Court (trial court) upheld 401 certification 5/21/2009. Appeal pending.

Illinois Circ. Ct. Sangamon County: Lake Carriers Assoc. v. Scott, No. 09-MR-140

Two conditions in Illinois certification did not comply with federal regulations because they did not cite state law basis for condition

Amended complaint pending

Pennsylvania Environmental Hearing Bd: Lake Carriers Assoc. v. Pennsylvania DEP, No. 2009-003-L

Ballast water provisions of certification violate federal and state law

Stayed by order of court until October 15, 2009.

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What Now?

Ballast water regulations

Proposed by Coast Guard, not EPA

EPA can add its own requirements

Moving from best management practices to numerical standards

Applied to domestic as well as international trading

$1 billion cost

Small companies bear the most significant cost

Comments due November 27, 2009

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What Now?

Air emission restrictions for Category 3 engines

Adoption of Annex VI

Submission of US/Canada ECA proposal to IMO

Draft regulations would apply ECA limits to internal as well as coastal areas

Unintended consequences?

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2011-2016 Many Environmental Changes for the Maritime Industry2011 NOx IMO Tier III for new engines

2012 SOx

Ballast Water

10,000 ppm sulfur fuel standard

Phase I for new engines and technology review for Phase II

2014 Ballast Water Phase I for fist drydocking after January 1st for existing vessel with 1,500-5,000 M3 ballast water tanks

2015 SOx 1,000 ppm sulfur fuel standard

2016 NOx

Ballast Water

Ballast Water

IMO Tier III for new engines

Phase I for first drydocking after January 1st for existing vessel with 1,500-5,000 M3 ballast water tanks

Phase II for new vessels and first drydocking after January 1st for existing unless Phase I technology is less than 5 years old

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What’s Next?

Climate Change

Possible new CO2 air emission restrictions

Bunker tax to provide funding used as an incentive to less developed countries?

Maritime spatial planning

Zoning for the oceans?

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What’s Next?

Marine debris

Upcoming focus

Sewage discharges

Petition filed for EPA to develop stricter regulation of Type II MSD

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What’s Next?

New environmental claims?

Propeller wash disturbing PCB-contaminated sediments by an engine testing facility can support operator liability under Superfund

Criminal violations of Non-Indigenous Aquatic uses and Prevention Control Act brought against the captain and chief officer of a vessel for ballast tank violations

Consolidations and modal shifting?

Many more changes to come

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Any Questions?