Ballast Water Management—Latest Developments

Jeanne M. Grasso

Much has changed over the past year regarding compliance with the U.S. Coast Guard’s (“USCG”) ballast water management requirements, and the horizon has gotten a bit clearer. There are now 16 ballast water management systems (“BWMS”) with USCG type-approval and 10 more in the pipeline. As such, many companies have kicked their compliance efforts into high gear, yet ballast water management still remains challenging, largely because the United States is not party to the International Maritime Organization’s (“IMO”) Ballast Water Management Convention and regulates ballast water unilaterally under the National Invasive Species Act and the Clean Water Act. And, a new regime is on the horizon, the Vessel Incidental Discharge Act of 2018, which is discussed further on page 21 of Mainbrace.

Some shipowners have struggled to manage compliance in an efficient and effective way with both IMO and U.S. requirements because the compliance dates and type-approval regimes differ, which sometimes has resulted in the need for compliance date extensions. The USCG’s extension policy has evolved as more type-approved systems become available, and the USCG just recently came out with a new policy via Maritime Commons. This new policy addresses and clarifies what the “next scheduled drydock” means, which triggers the compliance date.

The USCG’s new interpretation sets forth a more practical approach for owners to plan for compliance. In short, it ties the anticipated compliance date to the vessel’s statutory out-of-water survey date under SOLAS rather than triggering a new date as a result of drydock slips, installation of scrubbers, or emergency drydocks, which shortened the time to comply. This new policy is a welcome change that will lead to more certainty as it maintains the vessel’s anticipated compliance date. Also, for those owners who have endeavored to comply, but ran into some challenges getting equipment on time or experienced installation hiccups or emergency drydocks, extensions are still available, but on a much more limited basis than in the past. What is imperative is a good faith, detailed plan to come into compliance, generally within a year.

Finally, to avoid problems in the United States regarding operational issues, it is important to have a contingency plan in place, which is incorporated into each vessel’s ballast water management plan. Initially, an inoperable BWMS should be reported to the USCG Captain of the Port (“COTP”) well in advance of arriving, to allow time to work through the compliance options. In making a decision, the COTP will examine how well you have prepared for operations and what steps you have taken to develop a contingency plan, such as training, maintenance, spares, and efforts to repair. Answers to these questions, as well as the vessel/company’s compliance history, will guide the COTP’s decision in terms of what he/she may allow if a BWMS is inoperable.

Surviving the VIDA Loca

Jeanne M. Grasso

On December 4, 2018, the Frank LoBiondo Coast Guard Authorization Act of 2018 (the “Act”) was signed into law. Title IX of the Act is the Vessel Incidental Discharge Act of 2018 (“VIDA”). VIDA establishes a new framework for the regulation of discharges incidental to the normal operation of vessels, adding a new Section 312(p) to the Clean Water Act, Uniform National Standards for Discharges Incidental to Normal Operation of Vessels. VIDA is the culmination of years of discussion and debate within Congress and the maritime industry to bring consistency and certainty to the regulation of discharges from U.S. and foreign-flag vessels. How and whether this consistency and certainty will occur will be seen in the next several years.

Background

VIDA was born primarily out of a lawsuit relating to the U.S. Environmental Protection Agency’s (“EPA”) exemption of vessels from the Clean Water Act’s National Pollutant Discharge Elimination System (“NPDES”) permitting program. By its terms, the NPDES permitting program, which regulates discharges of pollutants from point sources into the navigable waters of the United States (generally within three miles from shore), applies to discharges incidental to the normal operations of a vessel because a vessel is a point source when in navigable waters. Continue reading “Surviving the VIDA Loca”

Ballast Water Management: The Conundrum Continues

Mainbrace | March 2018 (No.1)

Jeanne M. Grasso and Sean T. Pribyl

It has been about 15 months since the U.S. Coast Guard (“USCG”) type-approved the first three ballast water man­agement systems (“BWMSs”) in December 2016; three more BWMSs have been type approved since. Yet, ballast water management remains one of the most challenging and frustrating regulatory issues of the past decade because of inconsistencies in the international and domestic regimes. This is largely because the United States is not party to the International Maritime Organization’s Convention on the Control and Management of Ships’ Ballast Water and Sediments (the “Convention”). Rather, the United States regulates ballast water unilaterally under the National Invasive Species Act, which differs in certain ways from the Convention, especially when it comes to approving equip­ment to meet the standards set forth in the Convention and the USCG’s implementing regulations. As such, ballast water compliance challenges remain far from resolved. In some cases, for example, especially with respect to USCG compli­ance date extensions, the policies continue to evolve on an ad hoc basis, often causing confusion. Continue reading “Ballast Water Management: The Conundrum Continues”

Ballast Water Management: Latest Developments and More Things You Should Know

Mainbrace | March 2017 (No. 2)

Jeanne M. Grasso

As briefly described in my recent January Mainbrace article, ballast water management has been one of the most challenging and oftentimes frustrating regulatory issues of the past decade. The principal reason is that the international regime under the International Maritime Organization’s (“IMO”) Convention on the Control and Management of Ships’ Ballast Water and Sediments (“Convention”), and the U.S. regime under the National Invasive Species Act (“NISA”), are not quite in sync when it comes to approving equipment to meet the standards set forth in the Convention and the U.S. Coast Guard’s (“USCG”) NISA regulations.

Continue reading “Ballast Water Management: Latest Developments and More Things You Should Know”

Your Vessel Just Discharged Oil in the Lone Star State…Have You Notified the Texas General Land Office?

Mainbrace | March 2017 (No. 2)

Jeremy A. Herschaft

When a marine pollution incident occurs in the United States, a vessel owner may find itself communicating with a myriad of federal and state response agencies, depending upon the size of the spill. If such an event occurs in Texas state waters, however, then one of the most important authorities that you will likely deal with is the Texas General Land Office (“TGLO”).

This article provides a brief overview of the TGLO to reinforce why this particular agency will be a critical component to any owner’s “Texas” marine pollution spill response plan. Keep in mind that obligations under Texas state law are in addition to obligations to abide by federal marine casualty and pollution response statutes and regulations.

Continue reading “Your Vessel Just Discharged Oil in the Lone Star State…Have You Notified the Texas General Land Office?”

U.S. District Court Finds U.S. Coast Guard’s National Pollution Funds Center Acted Arbitrarily and Capriciously When Denying Oil Spill Claim

Jonathan K. Waldron, Jeanne M. Grasso, and Sean T. Pribyl

Action Item: In December 2016, the U.S. District Court for the District of Columbia found that the U.S. Coast Guard’s National Pollution Funds Center (“NPFC”) wrongfully denied a reimbursement claim by the Water Quality Insurance Syndicate (“WQIS”) for the costs of cleaning up an oil spill in Cook Inlet, Alaska in January 2009. This opinion provided a powerful finding that a federal agency acted arbitrarily and capriciously in taking final agency action under the Administrative Procedure Act (“APA”). The opinion puts federal agencies on notice that agency determinations must be supported by the factual record. Continue reading “U.S. District Court Finds U.S. Coast Guard’s National Pollution Funds Center Acted Arbitrarily and Capriciously When Denying Oil Spill Claim”

Ballast Water Challenges Continue: Several New Things You Should Know

Mainbrace | January 2017 (No. 1)

Jeanne M. Grasso

On December 2, 2016, the U.S. Coast Guard (“USCG”) reached a watershed moment in the implementation of its ballast water management regulations by announcing the first USCG typeapproved ballast water management system (“BWMS”), a filtration/ultraviolet system manufactured by Optimarin AS, based in Norway. This USCG typeapproval has been more than four years in the making, since the USCG’s Final Rule for Standards for Living Organisms in Ships’ Ballast Water Discharged in U.S. Waters went into effect on June 21, 2012 (“Final Rule”). On December 23, 2016, the USCG type approved two more systems—one ultraviolet system and one electro-chlorination system, manufactured by Alfa Laval Tumba AB in Sweden and OceanSaver AS in Norway, respectively.

Continue reading “Ballast Water Challenges Continue: Several New Things You Should Know”