Navigating the uncertainties in the US Ballast Water Programs and Policies

Gary Croot, President IMESA & Ret. USCG Chief, Environmental Standards Division presentation during the 2015 GREEN4SEA Forum

It is absolutely imperative that you understand that the IMO resolution, that delayed the implementation of the Convention, doesn’t apply at all to the Coast Guard regulations or to the EPA VGP implementation schedule. These two are completely independent of one another.  One of the most important differences, that it will become clearer later, is that the Coast Guard adopted a living vs dead numeric standard for biological efficacy. The convention chose to use viable vs non-viable. Now, as a ship-owner you are probably thinking, I don’t care about that, and you probably don’t except when it comes time to actually purchase a system and determine if it will meet Coast Guard requirements for Type Approval.

Additionally, we know that Coast Guard uses Dry Dock Dates vs Survey Dates (those dates aren’t always the same). Below it follows Coast Guard implementation schedule. It’s the same as the VGP implementation schedule and as you can see vessels that have 1500-5000 m³ ballast water capacity, are already required to be in compliance with the discharge standard.

How can they do that? They can choose one of the 5 below methods:

• Use a USCG TA BWMS or AMS
• Discharge to a shore based treatment facility
• Use Potable water meeting U.S. or Canadian drinking water regulations
• Request/receive U. S. COAST GUARD Extension Letter
• Retain all ballast water on board.

The 99% of the vessels are going to either install a BWM system to comply with the discharge standard or they are going to request a Coast Guard extension letter that allows them to continue BWE until there are adequate numbers of BWMs that have been US type approved. The other significant difference between the convention and the Coast Guard regulation is the entire type approval process. The Coast Guard type approval process is very similar to G8. In fact G8 was based on a very early preliminary addition of the Coast Guard environmental technology verification protocol, which is contained in the regulations. One of the problems with G8 is that they are guidelines. So, different administrations have interpreted them differently. Some have taken very strict interpretation while others have adopted a more lax interpretation.

With the Coast Guard ETV protocol there is very little latitude in how systems can be tested and type approved. The ETV process has a much greater emphasis on scientific and statistical levels of confidence. It has a much heavier reliance on quality assurance and quality control procedures, and the test facility has to be completely independent of the BWMS vendor. That’s not always the case under G8. The process is anticipated to take about 18 to 36 months from the time the vendor initially decides to go through this type approval process until he receives his type approval letter. It could be shorter and in some instances it could be longer, depending upon maturity of the particular company. As we know that causes a problem to those vessels that are already required to comply with the regulations. So, a vessel can do one of two things. Solutions:

• Extension of compliance date iaw 33 CFR 151.2036 – Vessel owner must demonstrate that no BWMSs are available suitable for the vessel

• Installation of Alternate Management System (AMS)

More particularly, the vessel can request an extension (at this point, Coast Guard has approved 100% of the extension requests that have been submitted). According to the Coast Guard, on Friday they had about 400 of them. Some clients are very concerned about the ships that are going to need to comply early 2016. According to again to the Coast Guard, they are working on those now and they will probably have those done in next 2-4 weeks. So, if you are in that group of ship-owners who have to comply early in 2016 and you requested an extension, you should hopefully be receiving that the next 2-4weeks.

The other thing about the extension request is that if you have an extension that went to 2016 or to 2017, nothing prevents you from requesting another extension. It’s not a one and done kind of thing. If the Coast Guard determines in 2016 that there are not enough type approved BWMSs and you need to comply with the BWDS, then you can request another extension of the Coast Guard. As more US type approved BWMSs become available, the Coast Guard requirements for extension letters will become more stringent. As a ship-owner you’ve got to demonstrate why you can’t install one of these systems that is type approved.

The other option is to install an Alternate Management System (AMS). AMS are not type approval from the Coast Guard. There is a lot of confusion regarding that there are two different things. AMS is not a precursor to US type approval. So there are a lot of rumours that if these systems receive AMS it’s going to get US type approval. That’s not always the case.

The other important thing to remember is that many of these AMS were type approved 3 or 4 years ago in a system-let’s call a model A-. It was type approved with a particular filter and particular PLC etc. and since that time, the BWMS has been developed and modified.  They may use a different filter, they may use a different PLC, different materials etc. and that lets say is type C-model C. And the BWTS vendor only intends on type approving model C. If you bought model A and install it as an AMS, then once your 5 years run out, you are stuck. For that reason I encourage everyone to make arrangements with their ballast water vendor. To ensure that the model they bought is the same as the model the Coast Guard is type approved. If not, then a procedure is worked out, so you are not left with the system. AMS is not for everybody. For example in the best case scenario you can conceivably use an AMS through 2026. It’s unlikely but it’s a possibility but it’s not for everyone.

UV Treatment System kills some organisms but not all. And so the Coast Guard has to develop a process that is similar to ETV process that has the same degree of scientific and statistical veracity when they are type approving these UV treatment systems. UV treatment systems as you will hear have been used in the water treatment industry for decades. They are reliable. They have many advantages but until he Coast Guard is able to determine what that type approval procedure is they won’t be able to type approve any UV treatment systems

Moving ahead to VGP. The VGP issued by EPAis not like anything you are familiar with. It’s a permitting process that was designed 40 years ago for stationary land side facilities. When the EPA tried to convert that to ships, it had lots of problems.  There are some good news about VGP that are very similar to the Coast Guard regulations and the convention, but there are also some pretty significant differences. Most importantly the VGP relies almost totally on self-reporting, self-monitoring and self-inspections.  So, you, as the ship-owner, are required to conduct very frequently self-inspections. You are required to have a procedure for doing it. You are required to log all of those inspections and then submit an annual report to the EPA.

According to the EPA, only 84% of ship-owners, out of 55,000 ships that are covered under the VGP, have submitted their annual report. EPA is not sure what they are going to do in terms of enforcement. They are still developing their enforcement procedures. But you can expect in the coming years that the EPA is going to be more strict, regarding the enforcement of submission of the annual reports. Another significant difference between the Coast Guard regulations and the VGP is that there is no mechanism in the Clean Water Act or the VGP for issuing extensions. So, on one hand you have one US Government Organization, the Coast Guard, saying we will issue an extension because we understand there are no type approved systems, and on the other hand, you have the EPA, saying we have the same implementation schedule and you have to comply with it and there are no exceptions.

The EPA has said that they will adopt low priority enforcement. But it’s unclear exactly what does it mean. Your options, moving ahead for the Coast Guard, are:

• Install an AMS or
• Request an extension letter.

For the EPA the options are (essentially install an AMS):

• Request an Alternative Individual Permit, which is a very time consuming process, or
• Request a Consent Agreement or
• Lawsuit the EPA (that’s a common practice in the US but in practice ship-owners are not used to

There are some things coming down the pike with the Coast Guard. The Coast Guard is required to review the discharge standards in January 2016. As far as I know, they have not started that process yet. They are also anticipating having a UV System Protocol for testing in the next 6-12 months, possibly sooner.

Finally, as far as the EPA, they need to develop a policy for the non-compliance. They don’t know what that policy is going to be and they haven’t been able to communicate that to the shipping industry. Keep in mind that the VGP is renewed every 5 years. They will start that process probably in 2016. I strongly encourage you to get involved in that process, either as individual ship-owners, as associations or with your Flag Administration. Because, by its very nature, the VGP tends to get stricter in each new iteration. And you can be guaranteed that environmental groups, that are lobbying very hard, for some of these Standards to be more stringent, will be sending lots of letters with lots of comments to the EPA and the Coast Guard. So I strongly recommend to your associations, to provide input to the US Government when it comes to their new regulations and changes.

Above article is an edited version of Gary Croot’s presentation during the 2015 GREEN4SEA Forum

You may view his presentation video by clicking here

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About Gary Croot

President IMESA & Ret. USCG Chief, Environmental Standards Division

As founder and President of IMESA, Mr. Croot has over 25 years of experience in the fields of marine safety, environmental protection, and international regulatory compliance and enforcement. He retired from the U.S. Coast Guard in 2011 as Chief of the Environmental Standards Division where he developed a wide variety of environmental regulations including ballast water management, control of marine debris, and dry cargo residue. He also administered the Coast Guard’s innovative Shipboard Technology Evaluation Program (STEP) which has facilitated the development and installation of effective ballast water treatment technologies. Gary led and participated in numerous Congressional briefings focusing on the intricacies of ballast water regulation and legislation and served on joint panels with representatives of the EPA’s Office of Water.

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