US — An alternative approach to ballast water

Malcolm Latarche
Malcolm Latarche

14 February 2018


The issue of ballast water treatment to stem the spread of invasive species is as much an issue in the US as it is elsewhere in the world so some may consider it a little ironic that the US has not ratified the IMO Ballast Water Convention.

However, the US has been extremely active in regulating ballast water discharge both on a Federal and state level and is currently the only nation requiring a ballast water treatment system to be fitted to ships calling at its ports.

Legislation and guidelines in the shape of the Non-indigenous Aquatic Nuisance Prevention and Control Act of 1990 and the National Invasive Species Act of 1996 have been in place in the US for more than two decades. In addition, individual states have at various times enacted, or have been preparing to enact, local regulations that would have made trading to the US an operational nightmare with different rules applying at ports all around the US coast.

Against this background, the US has developed a set of federal rules that apply to US-flagged vessels and foreign vessels operating in US waters. There has been much debate over the development of these rules not least because under the initial proposals relatively benign discharge standards similar to those in the IMO convention would have been replaced in 2016 with a much harsher standard that would have been completely out of reach with current technology. The delay in implementing the federal law galvanised some states — notably California and New York — to press forward in formulating local laws.

In late 2011, the US legislature accepted arguments from industry that a single federal regulation on ballast water was preferable to a jigsaw of state regulations and approved The Commercial Vessel Discharge Reform Act. This act amended earlier laws and prohibited the Environmental Protection Agency from approving local state regulations.

The USCG was tasked with amending earlier proposed federal requirements to take account of both environmental concerns and the current state of technology. The USCG’s final rule was published on March 23, 2012 in the Federal Register, and became effective 90 days after publication, on June 21, 2012. The delay in agreeing federal regulation meant that, just as with the IMO plans, the initial deadlines for many vessels had passed and would need to be rescheduled. It was also accepted that independent scientific advice arrived at after evaluating most of the systems commercially available declared the initial more stringent phase two standards as impossible under current technological limitations. Consequently these have
been indefinitely postponed but will be kept under review and could be reintroduced or amended at some future date.

Options for enforcers

Unlike the IMO convention where enforcement will be down to individual port and flag states, in the US there is a single authority to enforce the ballast treatment requirements. The USCG set out a range of enforcement tools available to those monitoring compliance which allows them to deal with minor first time infringers all the way through to serious and persistent offenders. These include:

  • Verbal Education
  • Letters of Warning
  • Notice of Violation
  • Administrative Civil Penalty (up to $35,000 per day; each day of violation constitutes a separate violation)
  • COTP orders
  • Suspension and Revocation
  • Criminal Proceedings

While a certain amount of leniency might be given in the early days, the US’ record on imposing heavy penalties on transgressors of oil pollution regulations should serve as a warning to shipowners for the future. In February 2017, the first reported case of USCG action against a shipowner in connection with ballast water was reported.

Apparently the accused vessel discharged ballast water without the use of a USCG-approved ballast water management system or other approved means in violation of the National Invasive Species Act and may be subjected to a maximum penalty of US$ 38,175. The case was not concluded when this guide went to press.

First steps to treatment

In 2004 as the IMO Convention was adopted and while the debate over discharge standards was getting underway, the USCG established the STEP (Shipboard Technology Evaluation Program) as a way of encouraging manufacturers to develop ballast water treatment systems.

As well as providing an alternative for ships that did not want to carry out ballast water exchange required by the existing US regulations, ballast water treatment systems needed to prove that they could reach whatever standards were eventually agreed upon. To join STEP, treatment system developers were required to firstly provide the USCG with details about their experimental systems and then to prove their effectiveness under operational conditions which meant that installation on board of a vessel was needed.

To encourage shipowners to provide the testing platforms for systems, vessels that were accepted into STEP in the period when discharge standards were being determined would be considered as being compliant with any future regulations for the life of the system or the life of the vessel which ever was shorter. Once discharge standards were decided, vessels joining the program would be granted equivalency status for a period of 10 years.

It is likely that STEP and the US’ unilateral regulatory approach have been instrumental in the high level of system manufacture and development in the US. At least four system manufacturers – Ecochlor, NEI, Hyde and Severn Trent de Nora have taken part in STEP and all have systems commercially available and approved.

A more robust approval process

The process for approving systems under the US rules is basically similar to that of the IMO convention in that systems must undergo both shore-based and onboard testing and any active substances require approval.

The US Environmental Protection Agency’s Environmental Technology Verification (ETV) Program published a final protocol for verification of ballast water treatment systems in September 2010. This protocol was developed in collaboration between EPA and the USCG. Under the protocol, EPA is responsible for determining the shore-based process and the USCG for laying down the on-ship testing procedures. Full details of the testing process are contained in a 156-page text.

A notable difference in the two processes is that the IMO testing is carried out according to guidelines whereas the US method is strictly regulated. This is changing now that the IMO has produced new G8 processes that are intended to become mandatory. When undergoing testing onboard under the US rules no experimentation is permitted and all operation must be done by the crew and not manufacturer’s personnel.

Whereas the IMO convention has more than 60 type-approved systems with the first dating back to 2008, the first US type-approved system was awarded certification in December 2016. As at March 2017, there are three US type-approved systems and one other awaiting a decision. Many more are in the process of testing and several manufacturers are predicting type-approval this year.

Because the US regulation already required some ships to have treatment systems installed the US instituted an Alternative Management System (AMS) process that permits treatment systems approved under the IMO process to be accepted for an initial period of five-years subject to an examination of test results and other documentation and possible further tests. The AMS process addresses some of the concerns over the effectiveness of systems in difficult water conditions and approves them for use in one or more water types based on salinity. The types are: Fresh, brackish or marine with appropriate salinity levels assigned to each category.

Unfortunately for manufacturers of systems that have gained approval under the IMO Convention procedures, the US authorities are not prepared to accept equivalence to the US type approval process. In fact, a presentation by the USCG in late 2014 highlighted the fact that very few IMO-approved systems would meet US standards without alterations to the equipment. In some cases, the alterations and changes needed may make a system uneconomic. There was a particular issue affecting systems making use of UV treatment which is covered in the next chapter under UV.

The presentation revealed that during AMS acceptance reviews the USCG had noted inconsistencies in type approval testing results accepted by Foreign Administrations using the IMO’s G8 Guidelines. These included lack of QA/QC (approx. 70%); use of testing procedures that have not been independently validated (approx. 50%); Scaling done other than recommended in G8 (approx. 80%). These inconsistencies should now be addressed because of the new G8 guidelines adopted in 2016.

An issue facing makers of systems seeking US type-approval is that each model in a range will need to undergo the full range of tests. This can be avoided if two or more identical and independent systems are used where higher ballast capacity is needed but if some components are common or scaled that will create problems.

Similarly, a system tested and approved with one set of components cannot be assumed to be equally effective with alternate components. Current US type-approval procedures require that the entire system be tested in a specific configuration with specific equipment. Land-based testing must be conducted in three different salinities: five test runs, each in fresh, brackish and marine water, with an additional five shipboard tests, for a total of 20 test runs. Additionally, 50 hours of operation and maintenance evaluation are required.

As a result, a BWMS that uses three different types of interchangeable filters would be required to undergo 60 test runs in order for all three filters to be type-approved. Costs and time required for the 60-test series could impede the progress of the type-approval process in this type of scenario.

Even when systems have been US type-approved, future upgrades will not be automatically accepted if the upgraded component is materially different from its predecessor. Under the USCG’s procedures for approving systems, any changes to an approved system must be submitted to it in advance, and may require additional testing or evaluation.

For ships already fitted with a non-US approved system there are two options available under the AMS process. The first involves the ship’s own system being offered for approval and the second requires the manufacturer to apply for blanket approval for all existing and future systems installed by them.

If an owner opts for the first option, the approval will only apply to the particular vessel on which it is installed and not to a similar or identical system installed on a sister ship. The majority of manufacturers with IMO type-approved systems have applied for blanket approval as this makes their products less risky and more attractive to customers planning to operate in US waters.

The systems that have been approved have been granted AMS status. AMS acceptance by the USCG is a temporary designation given to a ballast water treatment system approved by a foreign administration. Vessel operators may use an AMS to manage their ballast water discharges in lieu of ballast water exchange, while the treatment system undergoes approval testing to USCG standards.

An AMS may be used to meet the US ballast water treatment requirements for up to five years after the ship’s ballast water discharge standard compliance date specified in the final rule. This five-year timeframe allows for the completion of required land-based and shipboard testing.

All new ships built since 1 December 2013 have been required to have a system fitted.
During the period between then and the deadline for existing ships laid down in the table above, all such ships calling at US ports and intending to discharge ballast water must either carry out exchange or treatment, in addition to fouling and sediment management. A third option is to use potable water (from the US public water system) and in such case the ballast tanks need to be cleaned and sediments removed beforehand. In the case of an emergency or malfunction of the treatment system, the USCG may allow the use of ballast water exchange as a contingency.

In March 2017, the USCG issued a new notice on the use of ballast treatment systems and with US type-approved systems becoming available it appears that the end is now insight for the AMS treatment of IMO type-approved systems.

The USCG now advises that if a US type-approved system is not available for a vessel, and compliance with the other approved ballast water management methods is not possible, the vessel owner/operator may apply for an extension of the vessel’s compliance date. Whether a type-approved system is “available” will be based on evidence submitted by the vessel owner/operator with the application for extension.

The length of compliance date extensions, when granted, will be based on the availability of USCG type-approved systems and detailed installation plans. Vessel owners and operators should anticipate that this will not typically align with scheduled dry docking.

Vessels having a compliance date before and including December 31, 2018: These requests will be evaluated as follows:

  1. Extension requests that do not provide a justification as to why compliance with one of the BWM methods in 33 CFR 151.1510 or 151.2025 is not possible by the current compliance date will be denied.
  2. Vessel owners and operators who have identified that a USCG type-approved BWMS is available for a vessel but do not have enough time to install it prior to the vessel’s compliance date must provide a strategy, including a detailed installation plan, for how the vessel would be brought into compliance by installing a USCG type-approved BWMS before the end of the extension. Extensions granted on this basis should be expected not to exceed 18 months.
  3. Vessel owners and operators who have identified that a USCG type-approved BWMS is not available for a vessel must provide a strategy, including a timeline, for how the vessel would be brought into compliance before the end of the extension. Extensions granted on this basis should be expected not to exceed 30 months.

Vessels having a compliance date between January 1, 2019 and December 31, 2020: The USCG will begin considering these requests 18 months prior to the vessel’s compliance date. These requests could be impacted by changes in the market or availability of type-approved systems. Owners and operators are encouraged to submit additional information in support of their extension request.

Vessels having a compliance date of January 1, 2021 or later: USCG does not anticipate granting extensions. Vessel owners and operators should plan to be in compliance on their current compliance date.

Alternative Management System (AMS): Vessels having an AMS installed do not qualify for an extension because the vessel is in compliance with the regulations; the AMS can be used for a period of five years after the vessel’s compliance date. Once USCG type-approved systems are available for a vessel, the vessel will no longer be able to install AMS in lieu of type-approved systems. Therefore, if a vessel is not past its compliance date and installing an AMS is being considered as a compliance method, the vessel owner or operator should evaluate whether a USCG type-approved system is available for the vessel. If it is determined that such a system is not available, an AMS can be installed before the vessel’s compliance date and used for up to five years after the vessel’s compliance date.

Existing compliance date extensions are valid until the date specified in the letter and may be transferred to a new owner/operator for the remainder of its term. Upon the letter’s expiration, a vessel must implement one of the approved ballast water management methods specified in 33 CFR 151.1510 or 151.2025.

Extension requests: Vessel owners and operators are reminded to submit a request for an extension 12-16 months before the vessel’s compliance date. Requests that are submitted less than 12 months prior to the vessel’s compliance date are in jeopardy of being denied. The USCG requires this time to review the application, request additional information from the applicant, and make a determination whether to grant or deny the request. If the extension request is denied, this allows the vessel owner or operator enough time to prepare for and install a system, or assess compliance options using another approved ballast water management method prior to the vessel’s compliance date.

The USCG regulations also contain some additional requirements to the ship’s operation independent of the need to install a treatment system.
These requirements are summarised below:

  • Clean ballast tanks regularly to remove sediments.
  • Rinse anchors and chains when the anchor is retrieved.
  • Remove fouling from the hull, piping and tanks on a regular basis.
  • Maintain a BWM Plan that includes the above in addition to ballast water management (no requirement that the BWM Plan must be approved).
  • Maintain records of ballast and fouling management.
  • Submit a report form 24 hours before calling at a US port.

The issue of testing systems by PSC Inspectors has not created the same problems that have beset the IMO Convention. This may be because the approving body for systems and PSC inspections are one and the same under the US rules.

Under the USCG rules, a ship that has been tested and where the samples do not reach the required discharge standard will not be prosecuted on that occasion so long as the shipowner can prove that the system was operated at all times in accordance with the rules and the system makers’ instructions.

Obviously under such circumstances, the owner will be expected to investigate in conjunction with the manufacturer the reasons why the system did not operate correctly. Some caution needs to be exercised with the USCG’s position because its co-authority the EPA has announced that their interpretation was only that an infringement could be treated as a low priority enforcement case. This might mean that immunity from prosecution could not be guaranteed.

EPA under fire

Although the USCG is tasked with enforcing US ballast water regulations it has been the Environmental Protection Agency that makes the rules in the first instance.

The current US regulations have been criticised by environmental organisations because they are closely aligned with the IMO standards which the critics see as not ambitious enough and the critics allege that insufficient thought was given to alternatives to the ballast systems on the market.

A challenge was made to the EPA when it set out the 2013 Vessel General Permit (VGP) that covers the permissible levels of pollution and discharges ships can make under normal operating conditions. This permit includes ballast water as well as black and grey water, oils and more. That was settled in favour of the EPA but in October 2015 a federal appeals court in New York unanimously reversed the decision.

The court said EPA acted arbitrarily and capriciously in setting the rules for the VGP and determined that EPA must completely re-do the regulatory process from the beginning, this time formulating a new VGP taking into account factors including:

  1. EPA’s previous decision to set the TBELs (Technology-based Effluent limitations) at the IMO (International Maritime Organization) Standard;
  2. EPA’s failure to consider onshore treatment for ballast water discharges;
  3. EPA’s decision to exempt pre–2009 Lakers from the TBELS in the 2013 VGP permit;
  4. EPA’s narrative standard for WQBELs (Water Quality-based Effluent Limitations) and
  5. The monitoring and reporting requirements established by EPA for WQBELs.

The current rules remain in place until the VGP rules are re-written although the EPA could also appeal to the Supreme Court of the US to reverse the decision. Industry observers believe that the decision has further confused an already tangled situation regarding global ballast regulation.
While the current rules are being rethought, another initiative could also upset the US situation. A bill introduced recently in the US senate by senator Marco Rubio would see ballast water taken out of the Clean Water Act entirely and all matters relating to ballast to be under the remit of the USCG ending involvement of EPA. Whether the bill will eventually be passed remains to be seen but its existence is another confusing factor to be taken into account.

As well as the new bill passing through the US law making process, the role of EPA may also be changing as the new US President has plans to change the agency’s role in environmental issues.