Latest briefing on USCG and EPA extension issue - Ballast Water Discharge

The USCG's Ballast Water Discharge Standard Regulation which came into effect on 21st June 2012, required vessels to install Coast Guard "type-approved" ballast water management systems pursuant to the implementation schedule below. According to the schedule, a vessel with a ballast water capacity of between 1500 - 5000 m3 must implement an approved ballast water management method by her first scheduled drydocking after 1st January 2014.

Table 151.2035(b)—Implementation Schedule for Approved Ballast Water Management Methods

 Vessel's ballast water capacityDate constructedVessel's compliance date

However, as no Coast Guard type approved system is as yet available, the USCG on 25th September 2013 issued a letter containing provisions for the Coast Guard to grant an application for an extension to the above implementation schedule. There is therefore no obligation for a vessel to install an interim ballast water management system. Instead a vessel owner or operator may submit an application to the USCG for an extension.

The extension request must be filed no later than 12 months before the vessel's applicable implementation date (unless the vessel's first scheduled drydocking date is sooner) and provide documentation that despite all efforts to meet the ballast water discharge standard requirements, compliance by the date stipulated in the implementation schedule is not possible.It is open to a vessel owner, prior to the vessel's US implementation date, to fit an alternative management system (AMS). This is usually a system that has received type approval in another State which the USCG is asked to review and designate as an AMS system.

If such a system is fitted, the vessel will be granted the right to use the system for five years. There is however no guarantee that the system will eventually receive US type approval and the vessel owner therefore purchases and installs an AMS system at his own risk.

The Environmental Protection Agency (EPA) however does not automatically recognise an extension granted by the USCG. This means that a vessel could still be in non-compliance with the VGP even if an extension has been obtained from the USCG. Under pressure from the industry and the USCG, the EPA issued the following two letters at the end of last year; (i) a joint EPA/USCG letter dated 24th December 2013, and (ii) an Enforcement Response Policy dated 27th December 2013.

In the joint EPA/ USCG letter, the EPA sets out to reassure the industry that it will adopt a unified approach with the USCG to address the industry's ballast water management issues, and that it is working with the USCG to ensure the earliest availability of USCG type approved technology.

In its Enforcement Response Policy, the EPA clarifies how it will consider the grant of an extension by the USCG. The EPA states that those situations when:

1. a vessel has applied for and received an extension from the USCG (as above),
2. the vessel is not in compliance with its ballast water numeric discharge limit under the 2013 VGP; and
3. the vessel is otherwise in compliance with all other provisions of the 2013 VGP, including the submission of a valid Notice of Intent,

the EPA will consider a violation of the 2013 VGP ballast water numeric discharge limit a low enforcement priority. The industry including the Chamber of Shipping of America find the EPA's Enforcement Response Policy above most unsatisfactory for reasons which include the following:

1. The EPA has not said that it will not enforce the 2013 VGP provisions against a vessel which has obtained a time extension from the USCG. Such a vessel remains technically non-compliant with the provisions of the VGP. Such non-compliance may have insurance, commercial and contractual implications for the vessel.
2. The policy is merely guidance to the EPA's own enforcement personnel on when to consider a violation of the 2013 VGP ballast water numeric discharge limit a low enforcement priority.
3. The policy is stated not to apply to "grossly excessive ballast water discharges" or "those that may present an imminent and substantial endangerment". The EPA has not however defined what is meant by "grossly excessive ballast water discharges" and "those that present an imminent and substantial endangerment".
4. The policy does not become effective until the vessel is already non-compliant with the VGP ballast water discharge requirements. The vessel owner will therefore have to place himself at the mercy of the EPA.
5. The policy is not effective if the vessel is non-compliant with any other provisions of the 2013 VGP. Without additional clarification from the EPA, this would appear to include any and all other provisions, whether related to ballast water discharges or not.
6. Any non-compliance with 2013 VGP will have to be reported to the EPA in the vessel's VGP Annual Report. This record of non-compliance may expose shipowners to citizen suits even if the EPA itself takes no action.
7. The EPA has furthermore reserved the right to change this policy at any time, presumably without prior notice.

The uncertain state of affairs above remains very unsatisfactory for vessel owners and operators. The industry is currently considering several options to force or bring about an alignment of the EPA's position with the USCG's position.

The Club has previously published two legal briefings on Water Ballast Management and have more related items on our International Environmental Compliance Resource Page.