[COMPANY LETTERHEAD]
[DATE]
Mr. Donald Tuxill
Section Chief, Nonpoint Source Management & General Permit Section
Division of Water, Fourth Floor
New York State Department of Environmental Conservation
625 Broadway
Albany, NY 12233-3505
Dear Mr. Tuxill:
[COMPANY NAME] is a [COMPANY TYPE] based in [CITY, STATE], and operates
[TUGBOATS and/or BARGES] in New York waters that are subject to the requirements of
the U.S. Environmental Protection Agency’s (EPA) Vessel General Permit (VGP).
New York’s section 401 certification of the VGP requires vessels transiting state waters to
install ballast water treatment systems. Condition 3 of the certification requires each vessel
constructed on or after January 1, 2013, to be equipped with a ballast water treatment system
that meets a standard roughly 1000 times greater than the International Maritime
Organization’s (IMO) D-2 standard. A provision in Condition 3 allows vessel operators to
apply for an extension to the implementation date for the requirement in certain circumstances.
[COMPANY NAME] requests that New York Department of Conservation grant an extension
from complying with the state’s ballast water treatment requirements described in Condition 3
for all of our vessels constructed on or after January 1, 2013, that may transit New York
waters. [If your vessels transit New York waters and at least one vessel carries, but does not
discharge, ballast water in New York waters, use the following sentence: Please note that this
extension request does not represent an acknowledgement that New York has the authority to
require the installation of ballast water treatment systems on vessels that transit, but do not
discharge in, state waters.]
We cannot achieve compliance with the ballast water treatment requirements by January 1,
2013, because:
1. No existing ballast water treatment technologies have been demonstrated to meet
the standard set by Condition 3.
The scientific consensus is that no existing treatment technologies can achieve
compliance with a ballast water discharge standard 1000 times more stringent than the
IMO D-2 standard.
In 2009, a number of ballast water treatment experts submitted comments to the
docket of the U.S. Coast Guard’s ballast water treatment proposed rulemaking. These
comments indicated that in the experts’ professional opinions, no treatment systems
currently exist that have been confirmed to meet any standard stricter than the IMO
standard. For example, Dr. Mario Tamburri, Director of the Maritime Resource
Mr. Donald Tuxill
[DATE]
Page 2
Center, stated in his comments, “There are no treatment systems that have been proven
to meet any more stringent limits [than the IMO standard].”1
In December 2010, the Wisconsin Department of Natural Resources proposed to
change to its requirement for newly constructed oceangoing vessels discharging ballast
water in Wisconsin waters to be equipped with a ballast water treatment system
meeting a discharge standard 100 times more stringent than the IMO standard
beginning January 1, 2012. Based on the analysis of the Great Lakes Ballast Water
Collaborative, Wisconsin concluded that “treatment technologies are not able to
demonstrate compliance with the Wisconsin standard.”2 Wisconsin’s determination
that no treatment systems proven to meet a standard ten times less stringent than the
Condition 3 requirement would be available by its implementation date reinforces the
nonattainability of the 1000 x IMO standard with current technology.
On July 12, 2011, the EPA Science Advisory Board (SAB), asked by the EPA Office
of Water to evaluate the effectiveness of existing technologies for shipboard treatment
of ballast water, published its findings that “based on available testing data […] no
current [treatment system] can meet a 100x or 1000x [IMO] standard,” and further,
that “it is not reasonable to assume that [treatment systems] are able to reliably meet or
closely approach a “no living organism” standard.”3 The SAB reviewed information
on 51 existing or developmental ballast water treatment systems and concluded that
five categories of systems have been demonstrated to meet the IMO standard.
However, in its letter to the EPA Administrator, the SAB wrote that these systems do
not have the potential to meet more stringent standards:
“Reasonable changes in existing [treatment systems] are likely to result in
incremental improvements, but are not likely to lead to 100 or 1000 times
further reductions in organism concentrations. Because of technological,
logistical, and personnel constraints imposed by shipboard operations, wholly
new systems need to be developed to meet proposed standards that are
100 or 1000 times more stringent than [the IMO standard].”4 [Emphasis
added.]
Due to the scientific consensus that no ballast water treatment systems are currently
available that meet a standard 1000 times more stringent than the IMO standard, and
given the SAB’s conclusion that the development of entirely new shipboard systems is
necessary to meet the 1000 x IMO standard – a process that could take years – we
submit that it is impossible for us to purchase and install systems meeting this standard
on our vessels by January 1, 2013, as required by Condition 3.
1
Docket ID No. USCG-2001-10486.
Wisconsin Department of Natural Resources, Wisconsin Ballast Water Treatment Feasibility
Determination (2010), 3.
3
Meyer, Dr. Judith L., et al., Efficacy of Ballast Water Treatment Systems: A Report by the EPA Science
Advisory Board (2011), 4.
4
Dr. Deborah L. Swackhamer, Chair of the EPA SAB, and Dr. Judith L. Meyer, Chair of the EPA SAB
Ballast Water Advisory Panel, to The Honorable Lisa P. Jackson, EPA Administrator, 12 July 2011, 2.
2
Mr. Donald Tuxill
[DATE]
Page 3
2. No method has yet been developed to reliably test the ability of a treatment
system to meet the standard set by Condition 3.
A significant factor in the nonexistence of ballast water treatment systems that can be
demonstrated to meet a more stringent standard than IMO’s is the lack of available or
accepted sampling protocols to verify ballast water efficacy.
A group of six ballast water treatment system manufacturers submitted comments to
the Coast Guard’s ballast water treatment rulemaking docket stating, “No current
technologies have been verifiably tested to a higher standard [than the IMO standard],
no test protocols are available, and no facilities are currently capable of conducting
this testing.”5
As stated above, the Wisconsin Department of Natural Resources engaged the Great
Lakes Ballast Water Collaborative to act as a technical advisory committee to assist in
its review of available technology. The Collaborative’s report on its July 20, 2010
meeting, which was focused on issues of ballast water testing processes and
technology verification procedures, describes the group’s conclusion that sampling
protocols do not exist to validate the achievement of standards more stringent than
IMO’s:
“Test facility experts […] were unanimous in stating that there are no
accepted testing protocols presently available to deliver acceptable statistical
confidence at the level of a 100 x IMO standard. […] The scientific experts
stated that testing to a more stringent standard [than IMO’s] would be very
difficult and is not presently possible, as no appropriate and experimentally
verified protocols for this currently exist.”6
In its report, the EPA SAB also addressed the inability of existing methods to
statistically verify the achievement of standards stricter than the IMO standard,
writing:
“[v]erification of standards that set very low organism limits […] may require
water samples that are too large to be logistically feasible. However, when
small samples are used, the probability is low of detecting an organism even
when the actual organism concentration is relatively high. […] [C]urrent,
available methods (and associated detection limits) prevent testing of
[treatment systems] to any standard more stringent than D-2 […] and
make it impracticable for verifying a standard 1000 x more stringent.”7
[Emphasis added.]
5
Docket ID No. USCG-2001-10486.
Sharon Moen, Report from the Great Lakes Ballast Water Collaborative Meeting: Duluth, July 20-21,
2010, 44.
7
Meyer, Dr. Judith L. et al., 3.
6
Mr. Donald Tuxill
[DATE]
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Vessel owners should not be required to install ballast water treatment systems to meet
a standard that cannot be practically measured or statistically verified with current
sampling protocols.
3. The United States government has not developed a process for approving ballast
water treatment systems.
In its proposed ballast water treatment rulemaking, the Coast Guard stated its intent to
“establish an approval program […] to ensure these systems meet required safety and
performance standards.”8 Since that time, EPA’s Environmental Technology
Verification (ETV) Program’s Generic Ballast Water Treatment Technology
Verification Protocol has been completed; however, the program does not certify
technologies and the protocol examines only system performance in land-based
facilities. Until an approval or certification process has been established that ensures
ballast water treatment systems are both safe and effective for use on all the vessels
that must install them, New York should not require their use.
Moreover, if and when systems meeting the New York standard are developed and approved,
it will also be necessary to ensure that those systems can be safely and practicably installed on
vessels with the unique structural and operating characteristics of [TUGBOATS and/or
BARGES]. [COMPANY NAME] is unaware of any ballast water treatment systems in
existence that have been approved, installed or even tested on vessels, such as ours, which
[CHOOSE REASONS THAT APPLY TO YOUR VESSELS]:
 Are of very limited size and have virtually no space in the engineroom to safely
accommodate ballast water treatment systems.
 Have ballast water flow rates that are so low as to make it virtually impossible for the
ballast water to pump through the system to be treated.
 Do not have installed ballast water piping; the ballast tanks are actually void spaces
emptied shoreside with hoses or portable pumps.
 Are tank barges that carry hazardous liquids and have specific regulatory safety
requirements regarding the installation of equipment on deck.
 [ADD OTHER VESSEL-SPECIFIC INFORMATION IF NECESSARY.]
[COMPANY] is unaware of any reliable prediction of when ballast water treatment systems
meeting the New York standard and able to be installed on [TUGBOATS and/or BARGES]
will become commercially available. Furthermore, if and when such systems are
commercially available, sufficient lead time will be necessary to enable their installation on
vessels in an orderly manner. We see no practicable way for this to occur before the
expiration of the current VGP on December 18, 2013.
We believe that these circumstances satisfy the criteria for an implementation date extension
listed in Condition 3, which are that:
8
74 Federal Register 44640.
Mr. Donald Tuxill
[DATE]
Page 5
“(1) [T]here is a shortage in supply of the technology necessary to meet the limits set
forth in this certification or other factor related to the availability and installation of
technology beyond the vessel owner/operator’s control, that delays the technology
being available and installed in time to comply with this standard; (2) the
unavailability of supply is the only reason the January 1, 2013 date cannot be met;
and (3) the vessel has exhausted all other options to comply with this standard.” 9
[COMPANY NAME] therefore requests an exemption for the duration of the current VGP
from the ballast water treatment system requirements in Condition 3 of New York’s section
401 certification for all of our vessels constructed on or after January 1, 2013, that may
transit New York waters.
Thank you for considering this extension request. Please do not hesitate to contact me if you
have any questions.
Sincerely,
[NAME]
9
United States Environmental Protection Agency National Pollutant Discharge Elimination System Vessel
General Permit for Discharges Incidental to the Normal Operation of Vessels, 88.