I 113th CONGRESS 2d Session H. R. 5609 IN THE HOUSE OF REPRESENTATIVES September 18, 2014 Mr. Hunter (for himself, Mr. Cummings , Mr. LoBiondo , Mr. Richmond , Mr. Jones , Mr. Luetkemeyer , Mr. Cooper , Mr. Jolly , Ms. Herrera Beutler , Mr. Young of Alaska , and Mr. Enyart ) introduced the following bill; which was referred to the Committee on Transportation and Infrastructure A BILL To provide for the establishment of nationally uniform and environmentally sound standards governing discharges incidental to the normal operation of a vessel.

1. Short title; table of contents (a) Short title This Act may be cited as the Vessel Incidental Discharge Act . (b) Table of contents The table of contents of this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Definitions. Sec. 3. Regulation and enforcement. Sec. 4. Uniform national standards and requirements for the regulation of discharges incidental to the normal operation of a vessel. Sec. 5. Treatment technology certification. Sec. 6. Exemptions. Sec. 7. Alternative compliance program. Sec. 8. Judicial review. Sec. 9. Effect on State authority. Sec. 10. Application with other statutes. 2. Definitions In this Act: (1) Administrator The term Administrator means the Administrator of the Environmental Protection Agency. (2) Aquatic nuisance species The term aquatic nuisance species means a nonindigenous species (including a pathogen) that threatens the diversity or abundance of native species or the ecological stability of navigable waters or commercial, agricultural, aquacultural, or recreational activities dependent on such waters. (3) Ballast water (A) In general The term ballast water means any water, including any sediment suspended in such water, taken aboard a vessel— (i) to control trim, list, draught, stability, or stresses of the vessel; or (ii) during the cleaning, maintenance, or other operation of a ballast water treatment technology of the vessel. (B) Exclusions The term ballast water does not include any pollutant that is added to water described in subparagraph (A) that is not directly related to the operation of a properly functioning ballast water treatment technology under this Act. (4) Ballast water performance standard The term ballast water performance standard means the numerical ballast water discharge standard set forth in section 151.2030 of title 33, Code of Federal Regulations or section 151.1511 of title 33, Code of Federal Regulations, as applicable, or a revised numerical ballast water performance standard established under subsection (a)(1)(B), (b), or (c) of section 4 of this Act. (5) Ballast water treatment technology or treatment technology The term ballast water treatment technology or treatment technology means any mechanical, physical, chemical, or biological process used, alone or in combination, to remove, render harmless, or avoid the uptake or discharge of aquatic nuisance species within ballast water. (6) Biocide The term biocide means a substance or organism, including a virus or fungus, that is introduced into or produced by a ballast water treatment technology to reduce or eliminate aquatic nuisance species as part of the process used to comply with a ballast water performance standard under this Act. (7) Discharge incidental to the normal operation of a vessel (A) In general The term discharge incidental to the normal operation of a vessel means— (i) a discharge into navigable waters from a vessel of— (I) (aa) ballast water, graywater, bilge water, cooling water, oil water separator effluent, anti-fouling hull coating leachate, boiler or economizer blowdown, byproducts from cathodic protection, controllable pitch propeller and thruster hydraulic fluid, distillation and reverse osmosis brine, elevator pit effluent, firemain system effluent, freshwater layup effluent, gas turbine wash water, motor gasoline and compensating effluent, refrigeration and air condensate effluent, seawater pumping biofouling prevention substances, boat engine wet exhaust, sonar dome effluent, exhaust gas scrubber washwater, or stern tube packing gland effluent; or (bb) any other pollutant associated with the operation of a marine propulsion system, shipboard maneuvering system, habitability system, or installed major equipment, or from a protective, preservative, or absorptive application to the hull of a vessel; (II) weather deck runoff, deck wash, aqueous film forming foam effluent, chain locker effluent, non-oily machinery wastewater, underwater ship husbandry effluent, welldeck effluent, or fish hold and fish hold cleaning effluent; or (III) any effluent from a properly functioning marine engine; or (ii) a discharge of a pollutant into navigable waters in connection with the testing, maintenance, or repair of a system, equipment, or engine described in subclause (I)(bb) or (III) of clause (i) whenever the vessel is waterborne. (B) Exclusions The term discharge incidental to the normal operation of a vessel does not include— (i) a discharge into navigable waters from a vessel of— (I) rubbish, trash, garbage, incinerator ash, or other such material discharged overboard; (II) oil or a hazardous substance as those terms are defined in section 311 of the Federal Water Pollution Control Act ( 33 U.S.C. 1321 ); (III) sewage as defined in section 312(a)(6) of the Federal Water Pollution Control Act (33 U.S.C. 1322(a)(6)); or (IV) graywater referred to in section 312(a)(6) of the Federal Water Pollution Control Act (33 U.S.C. 1322(a)(6)); (ii) an emission of an air pollutant resulting from the operation onboard a vessel of a vessel propulsion system, motor driven equipment, or incinerator; or (iii) a discharge into navigable waters from a vessel when the vessel is operating in a capacity other than as a means of transportation on water. (8) Geographically limited area The term geographically limited area means an area— (A) with a physical limitation, including limitation by physical size and limitation by authorized route, that prevents a vessel from operating outside the area, as determined by the Secretary; or (B) that is ecologically homogeneous, as determined by the Secretary, in consultation with the heads of other Federal departments or agencies as the Secretary considers appropriate. (9) Manufacturer The term manufacturer means a person engaged in the manufacture, assemblage, or importation of ballast water treatment technology. (10) Secretary The term Secretary means the Secretary of the department in which the Coast Guard is operating. (11) Vessel The term vessel means every description of watercraft or other artificial contrivance used, or practically or otherwise capable of being used, as a means of transportation on water. 3. Regulation and enforcement (a) In general The Secretary, in consultation with the Administrator, shall establish and implement enforceable uniform national standards and requirements for the regulation of discharges incidental to the normal operation of a vessel. The standards and requirements shall— (1) be based upon the best available technology economically achievable; and (2) supersede any permitting requirement or prohibition on discharges incidental to the normal operation of a vessel under any other provision of law. (b) Administration and enforcement The Secretary shall administer and enforce the uniform national standards and requirements under this Act. Each State may enforce the uniform national standards and requirements under this Act. 4. Uniform national standards and requirements for the regulation of discharges incidental to the normal operation of a vessel (a) Requirements (1) Ballast water management requirements (A) In general Notwithstanding any other provision of law, the requirements set forth in the final rule, Standards for Living Organisms in Ships’ Ballast Water Discharged in U.S. Waters (77 Fed. Reg. 17254 (March 23, 2012), as corrected at 77 Fed. Reg. 33969 (June 8, 2012)), shall be the management requirements for a ballast water discharge incidental to the normal operation of a vessel until the Secretary revises the ballast water performance standard under subsection (b) or adopts a more stringent State standard under subparagraph (B) of this paragraph. (B) Adoption of more stringent State standard If the Secretary makes a determination in favor of a State petition under section 9, the Secretary shall adopt the more stringent ballast water performance standard specified in the statute or regulation that is the subject of that State petition in lieu of the ballast water performance standard in the final rule described under subparagraph (A). (2) Initial management requirements for discharges other than ballast water Not later than 2 years after the date of enactment of this Act, the Secretary, in consultation with the Administrator, shall issue a final rule establishing best management practices for discharges incidental to the normal operation of a vessel other than ballast water. (b) Revised ballast water performance standard; 8-Year review (1) In general Subject to the feasibility review under paragraph (2), not later than January 1, 2022, the Secretary, in consultation with the Administrator, shall issue a final rule revising the ballast water performance standard under subsection (a)(1) so that a ballast water discharge incidental to the normal operation of a vessel will contain— (A) less than 1 living organism per 10 cubic meters that is 50 or more micrometers in minimum dimension; (B) less than 1 living organism per 10 milliliters that is less than 50 micrometers in minimum dimension and more than 10 micrometers in minimum dimension; (C) concentrations of indicator microbes that are less than— (i) 1 colony-forming unit of toxicogenic Vibrio cholera (serotypes O1 and O139) per 100 milliliters or less than 1 colony-forming unit of that microbe per gram of wet weight of zoological samples; (ii) 126 colony-forming units of escherichia coli per 100 milliliters; and (iii) 33 colony-forming units of intestinal enterococci per 100 milliliters; and (D) concentrations of such additional indicator microbes and of viruses as may be specified in regulations issued by the Secretary in consultation with the Administrator and such other Federal agencies as the Secretary and the Administrator consider appropriate. (2) Feasibility review (A) In general Not less than 2 years before January 1, 2022, the Secretary, in consultation with the Administrator, shall complete a review to determine the feasibility of achieving the revised ballast water performance standard under paragraph (1). (B) Criteria for review of ballast water performance standard In conducting a review under subparagraph (A), the Secretary shall consider whether revising the ballast water performance standard will result in a scientifically demonstrable and substantial reduction in the risk of introduction or establishment of aquatic nuisance species, taking into account— (i) improvements in the scientific understanding of biological and ecological processes that lead to the introduction or establishment of aquatic nuisance species; (ii) improvements in ballast water treatment technology, including— (I) the capability of such treatment technology to achieve a revised ballast water performance standard; (II) the effectiveness and reliability of such treatment technology in the shipboard environment; (III) the compatibility of such treatment technology with the design and operation of a vessel by class, type, and size; (IV) the commercial availability of such treatment technology; and (V) the safety of such treatment technology; (iii) improvements in the capabilities to detect, quantify, and assess the viability of aquatic nuisance species at the concentrations under consideration; (iv) the impact of ballast water treatment technology on water quality; and (v) the costs, cost-effectiveness, and impacts of— (I) a revised ballast water performance standard, including the potential impacts on shipping, trade, and other uses of the aquatic environment; and (II) maintaining the existing ballast water performance standard, including the potential impacts on water-related infrastructure, recreation, propagation of native fish, shellfish, and wildlife, and other uses of navigable waters. (C) Lower revised performance standard (i) In general If the Secretary, in consultation with the Administrator, determines on the basis of the feasibility review and after an opportunity for a public hearing that no ballast water treatment technology can be certified under section 5 to comply with the revised ballast water performance standard under paragraph (1), the Secretary shall require the use of the treatment technology that achieves the performance levels of the best treatment technology available. (ii) Implementation deadline If the Secretary, in consultation with the Administrator, determines that the treatment technology under clause (i) cannot be implemented before the implementation deadline under paragraph (3) with respect to a class of vessels, the Secretary shall extend the implementation deadline for that class of vessels for not more than 36 months. (iii) Compliance If the implementation deadline under paragraph (3) is extended, the Secretary shall recommend action to ensure compliance with the extended implementation deadline under clause (ii). (D) Higher revised performance standard (i) In general If the Secretary, in consultation with the Administrator, determines that ballast water treatment technology exists that exceeds the revised ballast water performance standard under paragraph (1) with respect to a class of vessels, the Secretary shall revise the ballast water performance standard for that class of vessels to incorporate the higher performance standard. (ii) Implementation deadline If the Secretary, in consultation with the Administrator, determines that the treatment technology under clause (i) can be implemented before the implementation deadline under paragraph (3) with respect to a class of vessels, the Secretary shall accelerate the implementation deadline for that class of vessels. If the implementation deadline under paragraph (3) is accelerated, the Secretary shall provide not less than 24 months notice before the accelerated deadline takes effect. (3) Implementation deadline The revised ballast water performance standard under paragraph (1) shall apply to a vessel beginning on the date of the first drydocking of the vessel on or after January 1, 2022, but not later than December 31, 2024. (4) Revised performance standard compliance deadlines (A) In general The Secretary may establish a compliance deadline for compliance by a vessel (or a class, type, or size of vessel) with a revised ballast water performance standard under this subsection. (B) Process for granting extensions In issuing regulations under this subsection, the Secretary shall establish a process for an owner or operator to submit a petition to the Secretary for an extension of a compliance deadline with respect to the vessel of the owner or operator. (C) Period of extensions An extension issued under subparagraph (B) may— (i) apply for a period of not to exceed 18 months from the date of the applicable deadline under subparagraph (A); and (ii) be renewable for an additional period of not to exceed 18 months. (D) Factors In issuing a compliance deadline or reviewing a petition under this paragraph, the Secretary shall consider, with respect to the ability of an owner or operator to meet a compliance deadline, the following factors: (i) Whether the treatment technology to be installed is available in sufficient quantities to meet the compliance deadline. (ii) Whether there is sufficient shipyard or other installation facility capacity. (iii) Whether there is sufficient availability of engineering and design resources. (iv) Vessel characteristics, such as engine room size, layout, or a lack of installed piping. (v) Electric power generating capacity aboard the vessel. (vi) Safety of the vessel and crew. (E) Consideration of petitions (i) Determinations The Secretary shall approve or deny a petition for an extension of a compliance deadline submitted by an owner or operator under this paragraph. (ii) Deadline If the Secretary does not approve or deny a petition referred to in clause (i) on or before the last day of the 90-day period beginning on the date of submission of the petition, the petition shall be deemed approved. (c) Future revisions of vessel incidental discharge standards; decennial reviews (1) Revised ballast water performance standards The Secretary, in consultation with the Administrator, shall complete a review, 10 years after the issuance of a final rule under subsection (b) and every 10 years thereafter, to determine whether further revision of the ballast water performance standard would result in a scientifically demonstrable and substantial reduction in the risk of the introduction or establishment of aquatic nuisance species. (2) Revised standards for discharges other than ballast water The Secretary, in consultation with the Administrator, may include in a decennial review under this subsection best management practices for discharges covered by subsection (a)(2). The Secretary shall initiate a rulemaking to revise 1 or more best management practices for such discharges after a decennial review if the Secretary, in consultation with the Administrator, determines that revising 1 or more of such practices would substantially reduce the impacts on navigable waters of discharges incidental to the normal operation of a vessel other than ballast water. (3) Considerations In conducting a review under paragraph (1), the Secretary, the Administrator, and the heads of other appropriate Federal agencies as determined by the Secretary, shall consider the criteria under section 4(b)(2)(B). (4) Revision after decennial review The Secretary shall initiate a rulemaking to revise the current ballast water performance standard after a decennial review if the Secretary, in consultation with the Administrator, determines that revising the current ballast water performance standard would result in a scientifically demonstrable and substantial reduction in the risk of the introduction or establishment of aquatic nuisance species. 5. Treatment technology certification (a) Certification required Beginning 60 days after the date that the requirements for testing protocols are issued under subsection (i), no manufacturer of a ballast water treatment technology shall sell, offer for sale, or introduce or deliver for introduction into interstate commerce, or import into the United States for sale or resale, a ballast water treatment technology for a vessel unless the treatment technology has been certified under this section. (b) Certification process (1) Evaluation Upon application of a manufacturer, the Secretary shall evaluate a ballast water treatment technology with respect to— (A) the effectiveness of the treatment technology in achieving the current ballast water performance standard when installed on a vessel (or a class, type, or size of vessel); (B) the compatibility with vessel design and operations; (C) the effect of the treatment technology on vessel safety; (D) the impact on the environment; (E) the cost effectiveness; and (F) any other criteria the Secretary considers appropriate. (2) Approval If after an evaluation under paragraph (1) the Secretary determines that the treatment technology meets the criteria, the Secretary may certify the treatment technology for use on a vessel (or a class, type, or size of vessel). (3) Suspension and revocation The Secretary shall establish, by regulation, a process to suspend or revoke a certification issued under this section. (c) Certification conditions (1) Imposition of conditions In certifying a ballast water treatment technology under this section, the Secretary, in consultation with the Administrator, may impose any condition on the subsequent installation, use, or maintenance of the treatment technology onboard a vessel as is necessary for— (A) the safety of the vessel, the crew of the vessel, and any passengers aboard the vessel; (B) the protection of the environment; or (C) the effective operation of the treatment technology. (2) Failure to comply The failure of an owner or operator to comply with a condition imposed under paragraph (1) shall be considered a violation of this section. (d) Period for use of installed treatment equipment Notwithstanding anything to the contrary in this Act or any other provision of law, the Secretary shall allow a vessel on which a system is installed and operated to meet a ballast water performance standard under this Act to continue to use that system, notwithstanding any revision of a ballast water performance standard occurring after the system is ordered or installed until the expiration of the service life of the system, as determined by the Secretary, so long as the system— (1) is maintained in proper working condition; and (2) is maintained and used in accordance with the manufacturer’s specifications and any treatment technology certification conditions imposed by the Secretary under this section. (e) Certificates of type approval for the treatment technology (1) Issuance If the Secretary approves a ballast water treatment technology for certification under subsection (b), the Secretary shall issue a certificate of type approval for the treatment technology to the manufacturer in such form and manner as the Secretary determines appropriate. (2) Certification conditions A certificate of type approval issued under paragraph (1) shall specify each condition imposed by the Secretary under subsection (c). (3) Owners and operators A manufacturer that receives a certificate of type approval for the treatment technology under this subsection shall provide a copy of the certificate to each owner and operator of a vessel on which the treatment technology is installed. (f) Inspections An owner or operator who receives a copy of a certificate under subsection (e)(3) shall retain a copy of the certificate onboard the vessel and make the copy of the certificate available for inspection at all times while the owner or operator is utilizing the treatment technology. (g) Biocides The Secretary may not approve a ballast water treatment technology under subsection (b) if— (1) it uses a biocide or generates a biocide that is a pesticide, as defined in section 2 of the Federal Insecticide, Fungicide, and Rodenticide Act ( 7 U.S.C. 136 ), unless the biocide is registered under that Act or the Secretary, in consultation with the Administrator, has approved the use of the biocide in such treatment technology; or (2) it uses or generates a biocide the discharge of which causes or contributes to a violation of a water quality standard under section 303 of the Federal Water Pollution Control Act ( 33 U.S.C. 1313 ). (h) Prohibition (1) In general Except as provided in paragraph (2), the use of a ballast water treatment technology by an owner or operator of a vessel shall not satisfy the requirements of this Act unless it has been approved by the Secretary under subsection (b). (2) Exceptions (A) Coast guard shipboard technology evaluation program An owner or operator may use a ballast water treatment technology that has not been certified by the Secretary to comply with the requirements of this section if the technology is being evaluated under the Coast Guard Shipboard Technology Evaluation Program. (B) Ballast water treatment technologies certified by foreign entities An owner or operator may use a ballast water treatment technology that has not been certified by the Secretary to comply with the requirements of this section if the technology has been certified by a foreign entity and the certification demonstrates performance and safety of the treatment technology equivalent to the requirements of this section, as determined by the Secretary. (i) Testing protocols Not later than 180 days after the date of enactment of this Act, the Administrator, in consultation with the Secretary, shall issue requirements for land-based and shipboard testing protocols or criteria for— (1) certifying the performance of each ballast water treatment technology under this section; and (2) certifying laboratories to evaluate such treatment technologies. 6. Exemptions (a) In general No permit shall be required or prohibition enforced under any other provision of law for, nor shall any standards regarding a discharge incidental to the normal operation of a vessel under this Act apply to— (1) a discharge incidental to the normal operation of a vessel if the vessel is less than 79 feet in length and engaged in commercial service (as defined in section 2101(5) of title 46, United States Code); (2) a discharge incidental to the normal operation of a vessel if the vessel is a fishing vessel, including a fish processing vessel and a fish tender vessel (as defined in section 2101 of title 46, United States Code); (3) a discharge incidental to the normal operation of a vessel if the vessel is a recreational vessel (as defined in section 2101(25) of title 46, United States Code); (4) the placement, release, or discharge of equipment, devices, or other material from a vessel for the sole purpose of conducting research on the aquatic environment or its natural resources in accordance with generally recognized scientific methods, principles, or techniques; (5) any discharge into navigable waters from a vessel authorized by an on-scene coordinator in accordance with part 300 of title 40, Code of Federal Regulations, or part 153 of title 33, Code of Federal Regulations; (6) any discharge into navigable waters from a vessel that is necessary to secure the safety of the vessel or human life, or to suppress a fire onboard the vessel or at a shoreside facility; or (7) a vessel of the armed forces of a foreign nation when engaged in noncommercial service. (b) Ballast water discharges No permit shall be required or prohibition enforced under any other provision of law for, nor shall any ballast water performance standards under this Act apply to— (1) a ballast water discharge incidental to the normal operation of a vessel determined by the Secretary to— (A) operate exclusively within a geographically limited area; (B) take up and discharge ballast water exclusively within 1 Captain of the Port Zone established by the Coast Guard unless the Secretary determines such discharge poses a substantial risk of introduction or establishment of an aquatic nuisance species; (C) operate pursuant to a geographic restriction issued as a condition under section 3309 of title 46, United States Code, or an equivalent restriction issued by the country of registration of the vessel; or (D) continuously take on and discharge ballast water in a flow-through system that does not introduce aquatic nuisance species into navigable waters; (2) a ballast water discharge incidental to the normal operation of a vessel consisting entirely of water suitable for human consumption; or (3) a ballast water discharge incidental to the normal operation of a vessel in an alternative compliance program established pursuant to section 7. (c) Vessels with permanent ballast water No permit shall be required or prohibition enforced under any other provision of law for, nor shall any ballast water performance standard under this Act apply to, a vessel that carries all of its permanent ballast water in sealed tanks that are not subject to discharge. (d) Vessels of the Armed Forces Nothing in this Act shall be construed to apply to the following vessels: (1) A vessel owned or operated by the Department of Defense (other than a time-chartered or voyage-chartered vessel). (2) A vessel of the Coast Guard, as designated by the Secretary of the department in which the Coast Guard is operating. 7. Alternative compliance program (a) In general The Secretary, in consultation with the Administrator, may promulgate regulations establishing 1 or more compliance programs as an alternative to ballast water management regulations issued under section 4 for a vessel that— (1) has a maximum ballast water capacity of less than 8 cubic meters; (2) is less than 3 years from the end of the useful life of the vessel, as determined by the Secretary; or (3) discharges ballast water into a facility for the reception of ballast water that meets standards promulgated by the Administrator, in consultation with the Secretary. (b) Promulgation of facility standards Not later than 1 year after the date of enactment of this Act, the Administrator, in consultation with the Secretary, shall promulgate standards for— (1) the reception of ballast water from a vessel into a reception facility; and (2) the disposal or treatment of the ballast water under paragraph (1). 8. Judicial review (a) In general An interested person may file a petition for review of a final regulation promulgated under this Act in the United States Court of Appeals for the District of Columbia Circuit. (b) Deadline A petition shall be filed not later than 120 days after the date that notice of the promulgation appears in the Federal Register. (c) Exception Notwithstanding subsection (b), a petition that is based solely on grounds that arise after the deadline to file a petition under subsection (b) has passed may be filed not later than 120 days after the date that the grounds first arise. 9. Effect on State authority (a) In general No State or political subdivision thereof may adopt or enforce any statute or regulation of the State or political subdivision with respect to a discharge incidental to the normal operation of a vessel after the date of enactment of this Act. (b) Savings clause Notwithstanding subsection (a), a State or political subdivision thereof may enforce a statute or regulation of the State or political subdivision with respect to ballast water discharges incidental to the normal operation of a vessel that specifies a ballast water performance standard that is more stringent than the ballast water performance standard under section 4(a)(1)(A) and is in effect on the date of enactment of this Act if the Secretary, after consultation with the Administrator and any other Federal department or agency the Secretary considers appropriate, makes a determination that— (1) compliance with any performance standard specified in the statute or regulation can in fact be achieved and detected; (2) the technology and systems necessary to comply with the statute or regulation are commercially available; and (3) the statute or regulation is consistent with obligations under relevant international treaties or agreements to which the United States is a party. (c) Petition process (1) Submission The Governor of a State seeking to enforce a statute or regulation under subsection (b) shall submit a petition requesting the Secretary to review the statute or regulation. (2) Contents; deadline A petition shall— (A) be accompanied by the scientific and technical information on which the petition is based; and (B) be submitted to the Secretary not later than 90 days after the date of enactment of this Act. (3) Determinations The Secretary shall make a determination on a petition under this subsection not later than 90 days after the date that the petition is received. 10. Application with other statutes Notwithstanding any other provision of law, this Act shall be the exclusive statutory authority for regulation by the Federal Government of discharges incidental to the normal operation of a vessel to which this Act applies. Except as provided under section 4(a)(1)(A), any regulation in effect on the date immediately preceding the effective date of this Act relating to any permitting requirement for or prohibition on discharges incidental to the normal operation of a vessel to which this Act applies shall be deemed to be a regulation issued pursuant to the authority of this Act and shall remain in full force and effect unless or until superseded by new regulations issued hereunder.