Overview of US Regulation
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 rule required new vessels constructed on after 1 December 2013 to be fitted with a USCG type-approved ballast water treatment system on delivery and for existing vessels to be required to fit a system after the first drydocking after 1 January 2014 (vessels with ballast capacity 1,500-5,000m3) or first drydocking after 1 January 2016 for all other vessels.
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.
The Alternative Management System
Because the US regulation already required some ships to have treatment systems installed before any system had been given USCG type-approval, 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 addressed 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 were 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.
Most of the manufacturers of IMO type-approved systems applied for and were granted AMS status.Regulatory Developments
The different approaches to type-approval in the US and IMO processes has meant that there are far fewer systems approved by the US. Norwegian maker Optimarin was the first US-approved system gaining that status in December 2016 and by September 2020 this number had increased to 36.
It needs to be recognised that there are anomalies between the type approval dates that could prove difficult for some ships. Some previously IMO type-approved systems will not meet IMO requirements after October 2020 but will still meet USCG type-approvals. Also some of the systems type-approved to the IMO 2018 Code standards may not yet have achieved USCG type-approval (some may not even have applied as yet). An owner intended to fit a system to a vessel that trades both to US and internationally needs to take care in choosing a system.
While the IMO system of type-approval was in disarray and subject to much criticism, the US regime was held up as a better and more robust process, despite it not having any type-approved systems for a considerable period. The Alternate Management System (AMS) programme which permitted certain recognised and IMO approved systems to be operated in US waters for five years beyond their compliance dates until US approved systems became available, was a pragmatic solution to the problem.
In March 2017, the USCG issued its Marine Safety Information Bulletin MSIB 003/17 which laid out the future extensions permitted for vessels to fit approved systems. Under the new rules, vessels not fitted with an AMS and having a compliance date up to and including 31 December 2018 were permitted extensions of just 18 months if one of the approved systems is considered suitable.
If it is determined that no approved system is suitable, the shipowner must provide a strategy and date for compliance and an extension of up to 30 months may be allowed.
For vessels having a compliance date between 1 January 2019 and 31 December 2020, requests for extensions will be considered 18 months prior to the vessel’s compliance date but the USCG has warned that changes in the market or availability of US type-approved systems may impact the requests.
For ships with compliance dates of 1 January 2021 or later, the USCG has said it does not anticipate granting any extensions.
The situation in the US is a little confusing because some individual states retain the right to enact their own requirements with regard to ballast water. California is notorious as one of those states and it has enacted laws imposing discharge standards that are stricter than the US Federal rules. Because of a lack of available technology, the implementation dates have been delayed until 2020.US Type-approval process
US Type-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 was initially carried out according to guidelines whereas the US method is strictly regulated. 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.
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.2018 USCG Authorization Act and its effects
2018 USCG Authorization Act and its effects
The differences in the US and IMO type-approval processes were nowhere more marked than in the test methods used to determine the viability of organisms subjected to UV radiation. Much of this difference was due to the words used in the different regulations. Under IMO rules organisms surviving treatment were considered ‘viable’ whereas US rules used the word ‘living’.
Those responsible for testing had argued that an organism subjected to UV radiation might be ‘living’ but would not be ‘viable’ because it would have lost the ability to reproduce. Because of this, the results of testing methods used by many systems that had been given IMO type-approval were not acceptable to the US Coast Guard.
In mid-November 2018, the USCG Authorization Act was passed by the Senate with the Vessel Incidental Discharge Act (VIDA). The VIDA Bill included legislative language that amended the USCG regulations to allow for the use of reproductive methods for the testing and approval of ballast water management systems. The amendments explicitly expand the definition of ‘living’ to ensure that organisms that cannot reproduce (non-viable) are not considered to be living. Basically, organisms that cannot reproduce are as good as dead for the purposes of the regulation.
After receiving the signature of US President Donald Trump in early December 2018 the act effectively became the new law. It re-authorises USCG programmes and will almost certainly lead to changes in US ballast water management regulations and the US Vessel General Permit, which covers discharges of ballast water as well as other operational discharges from vessels.
A new VGP had been due to be put into effect in December 2018, replacing one that had been in force since 2013, but has been delayed by the Environmental Protection Agency (EPA) and there is a possibility that no new version will ever be released. The 2013 VGP will remain in force until a decision is made.
The new Vessel Incidental Discharge Act (VIDA), which forms part of the new USCG rules, gives the EPA responsibility for establishing standards for the discharge of pollutants from vessels and the USCG responsibility for prescribing, administering, and enforcing the standards. EPA has a two-year period to promulgate the new regulations after which the USCG has a 60- day window in which to review and concur with it. The new act does require that new rules cannot be any less stringent than current VGP or US ballast water regulations but it prevents individual states from enacting more stringent requirements without approval from the EPA.
The Act also authorised $50M a year for a new programme under the EPA for monitoring and responding to outbreaks of invasive species in the Great Lakes and to help develop ballast-control technologies for vessels in the lakes. An unrelated provision of the act will see the creation of a research centre in the Great Lakes to study the impact of oil spills in fresh water.Enforcement options
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 authorities which allows them to deal with minor first time infringers all the way through to serious and persistent offenders.
- 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.