# Presentation: 032606

## BALLAST WATER MANAGEMENT

- Invasive Species Workshop
- Transportation Research Board
- January 9, 2005

## CHAMBER OF SHIPPING OF AMERICA

- Industry trade association
- Representing vessel owners operating both US and foreign flag vessels
- Trading in international and coastwise trades
- Long history with this issue with US delegation to IMO, input to legislative and regulatory processes

## BASIC FUNDAMENTALS

- Shipping is international
- Regulation of shipping should be international
- Predictability of requirements
- Elimination of regulation induced competitive disadvantages
- Potential tension among international, legislative and regulatory requirements
- Timing is everything!!!!

## INDUSTRY BASED ASSUMPTIONS

- Need for internationally accepted mandatory BW management program
- Consistency between international and domestic programs
- Solutions must provide real benefit to the environment
- We are experts in vessel operations, not marine/invasion biology
- Be careful what questions you try and answer!

## INDUSTRY POSITIONS

- Mandatory national BW management program
- Exchange as technology benchmark but no longer appropriate focus for future control strategies
- Promote ID and testing of new technologies

## LAY OF THE LEGAL LANDSCAPE

- Finalized IMO Convention
- Development of IMO Guidelines
- US Legislative Initiatives (Fed/State)
- Regulatory Initiatives (Fed/State/Local)
- Multitude of technology developers all assuring their “silver bullet”

## IMO CONVENTION VS. US LEGISLATION

- IMO entry into force????
- Multiple US legislative efforts
- US legislation enactment expected in 2005
- Industry position to maximize alignment of national and IMO requirements
- 100% alignment unlikely (performance std.)

## DEVIL IS IN THE DETAILS (IMO Guideline Development)

- Sediment and BW Reception Facilities
- Sampling
- Equivalent Compliance for pleasure/SAR vessels
- BW Management Plans
- BW Exchange
- Additional measures and risk assessment protocols
- Approval of ballast water management systems
- Procedures for approval of “active” substances
- Prototype BW treatment technologies

## DEVIL IS IN THE DETAILS (US Legislative and Regulatory)

- General legislation with details left to regulatory programs or...
- Specific legislation with less detail left to regulatory programs?
- IMO requirements reflected in total...in part...or not at all?
- Intentional or inadvertent loopholes with partial adoption of IMO requirements

## PERFORMANCE BASED STANDARD

- Mandatory requirements “do able” by all vessels regardless of location, vessel type or weather/sea conditions
- New technology verified by standardized test protocols (EPA Environmental Technology Verification project)
- Timed phase-in differentiating between new and existing ships

## ALTERNATIVE BW MANAGEMENT TECHNOLOGY PROGRAM

- Must be transparent process
- Specified process for proposal submittal, evaluation and approval
- Specified format and content
- Use of technology verification protocols
- “Temporary” approval for testing program with final review and approval for successful test programs

## FEDERAL PREEMPTION OF STATE REQUIREMENTS

- NISA 96 recognizes need for national and international consistency
- Equally applicable to federal and state programs
- Must have strong legal and policy justification to gain Congressional support
- Current evidence of “patchwork quilt” in varying state and national requirements

## DEVELOPING TECHNOLOGIES

- Filtration
- Other physical separation
- UV/IR or other electromagnetic spectra application
- Thermal
- Chemical biocides
- Ozone
- But.....need performance standard to assess

## TECHNOLOGY DEVELOPMENT CONSIDERATIONS

- Maximum operational flow rate (vessel)
- Maximum operational flow rate (application and/or residence time)
- Adaptability to shipboard environment
- Footprint
- Installation and maintenance feasibility
- Back-up capability and redundancy
- Sampling and monitoring needs

## CHALLENGES

- Standardized test protocols
- Finalized IMO guidelines and domestic requirements
- Ramp-up from lab to pilot to shipboard
- Conversion of existing performance data (% removal to concentration based format)
- Sufficient funding (public and private)
- ACKNOWLEDGEMENT THAT THERE IS NO SILVER BULLET!

## PRESENTER’S CONTACT INFORMATION

- Kathy Metcalf
- Director, Maritime Affairs
- Chamber of Shipping of America
- 1730 M Street, NW – Suite 407
- Washington, DC  20036
- 202.7752.4399 (office)
- 202.659.3795 (fax)
- Kmetcalf@knowships.org

## ADDENDUMBallast Water Management:Proposed US LegislationVs.IMO Treaty Text 

- Kathy Metcalf
- Chamber of Shipping of America
- October 24, 2004

## Analytical Assumptions

- IMO Convention text from Diplomatic Conference
- IMO Entry into force estimated in 2006/2007??
- Proposed legislative text from S 525
- Enactment of US legislation estimated in 2005
- Both subject to change in adoption process
- Analysis does not address amendment/change processes or areas in which discretion is likely to be provided in national implementation

## Applicability

- IMO Art. 3
- Vessels engaged in or certified for international trade
- Excludes vessels operating exclusively in one party’s jurisdiction or another party where prior authorization is given
- Excludes “sovereign” vessels e.g. military, naval auxiliary

- US §101(a)(4)
- Vessels operating in US waters equipped with ballast tanks
- Excludes vessels operating exclusively in US EEZ from interim standard only
- Excludes vessels operating in enclosed aquatic ecosystems from interim and final standards

## Preemption/Conflict of Laws

- IMO Art. 2 and 16 and Regulation C - 1
- Party may implement more stringent or additional measures consistent with international law
- May not prejudice national rights under customary international law per UNCLOS

- US § 101(m)
-  does not supercede or affect FWPCA requirements
- But note while IMO issues addresses conflict between international/national laws, the domestic issue concerns potential conflicts between an adopted federal program and state/regional/local programs

## Entry Into Force (EIF)

- IMO Art. 18
- EIF starts clock for implementation by signatories
- EIF defined as 12 months after treaty ratified by 30 countries representing at least 35% of the gross tonnage of the world fleet

- Date of enactment starts clock for promulgation of regulations
- Regulations will contain effective dates by which requirements must be met

## Implementation Dates

- IMO Reg. B-3
- Existing ships defined as those built before either 2009
- New ships defined as those built after 2009 (moderating provision for those built between 2009 and 2012)
- Further breakdown based on ballast water capacity of vessel

- US promulgation of regulations (and effective dates) as required in various sections of legislation
- Final standard in effect no later than 1 October 2011
- New ship defined as those constructed after 1 January 2006

## IMO Implementation Dates for Final Standard (cont’d)

- Small and large capacity existing ships -2016
- Medium capacity existing ships – 2014
- Small new ships  - 2009
- Large new ships – 2012 (except those  built between 2009 and 2012 – implementation at 2016)

## Standards (Structure)

- IMO Reg. D-2
- Explicit final standard
- No interim standard
- But implicit in continued acceptability of exchange per IMO Reg. D-1
- Reg. D-1 becomes obsolete when final standard in D-2 takes effect

- US  §101(b)(1) and (2)
- Interim standard
- Final standard no later than 1 October 2011

## Interim Standard Format

- IMO implicit
- BW exchange or alternative meeting final standard in Reg. D-2

- US § 101(b)(1)
- BW exchange or 95% kill/removal/inactivate of vertebrates, invertebrates, phytoplankton and micro algae

## Interim Standard Format (cont’d)

- IMO Reg. B-3 and Reg. D-1
- 200 nautical miles offshore/200 meters depth or 50 nautical miles offshore/200 depth or designated exchange zones
- 95% volumetric efficiency
- 1 MT/refill accepted
- 3 volume flow

- US § 101(b)(1)
- Distance and depth to be specified in US regulation
- 95% volumetric efficiency
- 1 MT/refill accepted
- 3 volume flow through must be proven 95% effective via dye or modeling studies

## Final Standard

- IMO Reg. D-2
- Number of organisms (all types) per unit volume of water above and below a size threshold (see page following for text)
- Includes additional indicator microbe discharge limits

- US § 101(b)(2)
- Best available technology (BAT) economically achievable
- BAT and process to define presumably to be included in regulations

## IMO Final Standard

- “...less than 10 viable organism(s) per cubic meter greater or equal to 50 micrometers in size and less than 10 viable organism(s) per milliliter smaller than 50 micrometers and greater than or equal to 10 μm in size...”
- Specified discharge concentrations provided for indicator microbes (toxicogenic vibrio cholera, e. coli and intestinal enterococci)

## Final Standards Review

- IMO Reg. D-5
- No later than 3 years prior to earliest effective date of final standard (2006 review for 2009 first effective date)
- Periodically “as appropriate” thereafter

- US §101(b)(3)
- BAT to be reviewed and revised (as appropriate) at least every three years

## Experimental Shipboard Testing Program

- IMO Reg. D-4
- Detailed guidelines to be developed by IMO
- 5 year incentive to participating vessels

- US § 101(b)(4)
- Significant potential to kill or remove at least 95% of specified organisms
- Ceases when interim standards are promulgated
- 10 year incentive to participating vessels

## Safety Exemptions

- IMO Reg. B-4(4)
- Only as regards ballast water exchange
- Not a factor as regards treatment systems
- Also note “no diversion or delay” exception in IMO Reg. B-4(3)

- US § 101(k)
- Limited as regards ballast water exchange subject to provisions of approved contingency plan

## Environmental Soundness

- IMO Reg. D-3
- Requires IMO approval for systems using “active substances” (very broad definition – see IMO Reg. A-1(7)
- Guidelines to be developed

- US § 101(b)(7)
- To be determined by EPA

## Scope of Vessel Plan

- IMO Reg. B-1
- “Ballast water management plan”
- Ballast water management plan and program requirement including sediment management

- US § 101(a)(1) and (3)
- “Invasive species management plan”
- IMO requirements plus additional requirements relating to ship operations unrelated to ballast water e.g. hull debris, antifouling hull coating systems