THE OPERATIONAL
FOOTPRINT OF
SHIPPING
Operations Committee
Maritime Exchange for the
Delaware River and Bay
January 15, 2009
US COMMISSION ON
OCEAN POLICY
“…THE DOMINANT PARDIGM FOR
GOVERNING THE OCEANS WAS THE
PRINCIPLE OF FREEDOM OF THE
SEAS, BASED ON THE PREMISE THAT
THE OCEANS WERE INFINITE AND
MARINE RESOURCES
INEXHAUSTIBLE…”
(US COMMISSION ON OCEAN POLICY, DRAFT FINAL REPORT, PG. 358)
Fundamentals of Marine
Transportation
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Shipping is international… so should be
the regulation of shipping.
Consistency and predictability of
requirements is critical.
Global increase in marine transportation
will be significant.
Need for coordinated global initiatives to
address maritime safety and protection of
the marine environment.
Potential tensions among international and
domestic requirements.
DO THE NEEDS OF THE
MARINE TRANSPORATION
SYSTEM AND MARINE
ENVIRONMENT REPRESENT
AN IRRESOLVABLE
CONFLICT?
ABSOLUTLY NOT!!!
NATURE DOES NOTHING IN
VAIN.
Aristotle
WHY NOT?
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Shipping is global….so must be marine
environment and resources management
even as applied to coastwise and offshore
operations
Both requires a systems approach
Cultural shift from casualty focus to
normal vessel operations
Not conflicting processes but may
represent competing users
Both require expansion beyond man-made
boundary lines e.g. EEZ
YOU CAN’T BUILD A
REPUTATION ON WHAT YOU
ARE GOING TO DO.
Henry Ford
Where to begin?
URGENT NEED FOR US RATIFICATION AND
IMPLEMENTATION OF PENDING TREATIES
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UN Convention on the Law of the Sea
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MARPOL Annex VI – Air Emissions (original 1997) –
ratified October 2008
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MARPOL Annex VI – Air Emissions (2008
amendments)
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Ballast Water Convention
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Anti-fouling Convention
Cooperative Endeavors
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Regular industry input to decision makers
Formal and informal settings
Share successes and failures
Federal Advisory Committees (USCG, NOAA,
EPA)
National Academy of Sciences (Marine Board)
and other independent groups
Input to legislative and regulatory projects
(preferably before they are initiated!)
Integrity, transparency and credibility are crucial
Substantive Operational
Issues (The Big Five!)
Air emissions
 Ballast water management and hull
fouling
 Waste management (minimization)
 Discharges incident to the normal
operation of vessels
 Shipping Impacts on living marine
resources
 Seafarer recruitment and retention
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Other Issues
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Maintain level playing field
General environmental statutes are
not a “one size fits all” especially as
regards the maritime industry
Jurisdictional limits on sovereignty
necessitate international instruments
that are legally binding and global in
scope (environmental management
extends to high seas)
Capt. John Henry Bates
Air Emissions – The
Fundamental Conflict
Shipping is international and so should be
control of air emissions (IMO)
 Air emissions are local/regional
 Air quality is usually defined in national
and sub-national terms and therefore
emissions control strategies are best
designed at national and regional levels
 HOUSTON….WE HAVE A PROBLEM
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Air Emissions Control Strategies
MARPOL Annex VI (original)
 MARPOL Annex VI (amendments)
 EU Marine Fuel Sulfur Directive
 US Clean Air Act and implementing
regulations
 Subnational – all states but especially
California
 Regional – Port of LA/Long Beach
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Policy Considerations #1
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All entities currently regulating or trying to
regulate air emissions from ships have
legitimate legal jurisdiction to do so to
SOME degree
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All entities have ethical responsibilities to
constituents to assure a safe and healthy
environment for their citizens
Policy Considerations #2
Vast percentage of international trade is
carried in the global (non US flag) fleet
 Citizens want clean air AND cheap goods
 “Cookie cutter” approaches to ship
emission controls will not provide the best
balance of environmental benefit and the
facilitation of trade
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Unknowns
Predicted growth rate of world fleet
 Actual emissions from ships
 Cost of fuel under more stringent
emissions reductions programs (globally
and regionally)
 Emissions abatement technology
development (SCR, EGS, others?)
 Cost/benefit equation
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Ultimate Goal
Net environmental benefit at all levels
 No cross media transfers
 Global availability of fuels meeting
requirements at all jurisdictional levels
 Continuing advances in shipboard
emission reduction technologies
 Adaptability and flexibility to address
regional issues without adverse impact on
international trade
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Annex VI Amendments - SOx
GLOBAL
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4.5% cap now
3.5% cap by 1/1/12
0.5% cap by 1/1/20
Subject to fuel oil
availability review
Max extension to
1/1/25
ECAs
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1.0% by 3/1/10
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.1% by 1/1/15
Annex VI Amendments - NOx
NEW ENGINES*
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Tier I – current
Tier II = 20%
reduction by 2012
Tier III = 80%
reduction by 2016
(only in ECAs)
* Refers to Category 3
engines only
EXISTING ENGINES
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No controls currently
Tier I would apply
subject to emission
upgrade system
certification by flag
state
US Activities
EPA Cat 2 rulemaking (final rule issued)
 EPA Cat 3 rulemaking (final rule by Dec
2009)
 Federal legislation – S 1499/HR 2458,
Marine Vessel Emissions Act of 2007
(pending, expect reintro next year)
 State action – CARB (2nd iteration)
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IN A NUTSHELL – US
ACTIONS
EPA using best efforts to accomplish goals
at IMO
 If unsuccessful, implementation via federal
legislation and rulemaking
 Wild card – California
 Likely legal challenges
 Consideration of SECA/ECA along all
three coasts
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Ballast Water Management
 Balance of Powers gone wrong!
 Legislative, judicial and executive
branch
 BW Legislation – S 1578, HR 2830
 Court case – NW Environmental
Advocates vs. EPA (Industry
intervened)
 EPA and USCG regulatory programs
BASIC FUNDAMENTALS
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Shipping is international
Regulation of shipping should be international
Predictability of requirements
Elimination of regulation induced competitive
disadvantages
 Potential tension among international, legislative
and regulatory requirements
 Timing is everything!!!!
INDUSTRY BASED
ASSUMPTIONS
 Need for internationally accepted mandatory BW
management program
 Consistency between international and domestic
programs
 Solutions must provide real benefit to the
environment
 We are experts in vessel operations, not
marine/invasion biology
 Be careful what questions you try and answer!
INDUSTRY POSITIONS
 Mandatory national BW management
program
 Exchange as technology benchmark but no
longer appropriate focus for future control
strategies
 Promote ID and testing of new technologies
 Oppose dual regulatory structures e.g. CWA
NPDES and ballast water statute
LAY OF THE LEGAL
LANDSCAPE
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Finalized IMO Convention
Development of IMO Guidelines
US Legislative Initiatives (Fed/State)
Regulatory Initiatives (Fed/State/Local)
Multitude of technology developers all
assuring their “silver bullet”
IMO CONVENTION VS. US
LEGISLATION
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IMO entry into force????
Multiple US legislative efforts
US legislation enactment expected ???
Industry position to maximize alignment of
national and IMO requirements
 100% alignment unlikely (performance std.)
DEVIL IS IN THE DETAILS (IMO
Guidelines)
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Sediment and BW Reception Facilities
Sampling
Equivalent Compliance for pleasure/SAR vessels
BW Management Plans
BW Exchange
Additional measures and risk assessment
protocols
 Approval of ballast water management systems
 Procedures for approval of “active” substances
 Prototype BW treatment technologies
DEVIL IS IN THE DETAILS (US
Legislative and Regulatory)
 General legislation with details left to
regulatory programs or…
 Specific legislation with less detail left to
regulatory programs?
 IMO requirements reflected in total…in
part…or not at all?
 Intentional or inadvertent loopholes with
partial adoption of IMO requirements
PERFORMANCE BASED
STANDARD
 Mandatory requirements “do able” by all
vessels regardless of location, vessel type
or weather/sea conditions
 New technology verified by standardized
test protocols
 Timed phase-in differentiating between new
and existing ships
ALTERNATIVE BW
MANAGEMENT TECHNOLOGY
PROGRAM
 Must be transparent process
 Specified process for proposal
submittal, evaluation and approval
 Specified format and content
 Use of technology verification protocols
 “Temporary” approval for testing
program with final review and approval
for successful test programs
FEDERAL PREEMPTION OF
STATE REQUIREMENTS
 NISA 96 recognizes need for national and
international consistency
 Equally applicable to federal and state
programs
 Must have strong legal and policy
justification to gain Congressional support
 Current evidence of “patchwork quilt” in
varying state and national requirements
NEED FOR EXCLUSION FROM
CLEAN WATER ACT PROVISIONS
 Text to make national legislation the
EXCLUSIVE statute for managing ballast
water
 Otherwise, provisions of CWA permitting
program (NPDES) would apply as well
DEVELOPING TECHNOLOGIES
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Filtration
Other physical separation
UV/IR or other electromagnetic spectra application
Thermal
Chemical biocides
Ozone
But…..need performance standard to assess
TECHNOLOGY DEVELOPMENT
CONSIDERATIONS
 Maximum operational flow rate (vessel)
 Maximum operational flow rate
(application and/or residence time)
 Adaptability to shipboard environment
 Footprint
 Installation and maintenance feasibility
 Back-up capability and redundancy
 Sampling and monitoring needs
CHALLENGES
 Standardized test protocols
 Finalized IMO guidelines and domestic
requirements
 Ramp-up from lab to pilot to shipboard
 Conversion of existing performance data (%
removal to concentration based format)
 Sufficient funding (public and private)
 ACKNOWLEDGEMENT THAT THERE IS NO
SILVER BULLET!
PENDING LEGISLATION
(FEDERAL)
 None as yet in new Congress
 Expect re-introductions of ballast water
legislation in House and Senate?
 Senate players – Levin, Inouye, Boxer
 House players - Oberstar
STATE ACTIONS
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California (zero discharge by 2020)
Washington, Oregon, Michigan
Other Great Lakes states in process
Expect others……..
Provides perfect example of why a national
program is necessary e.g. varied
requirements
 Wide variety of state requirements in
NPDES Vessel General Permit
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Clean Water Act (CWA) Permit Basics
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Vessel General Permit and Exclusions
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Court Decision(s)
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Implications
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Questions & Issues to Consider
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“Discharge of a pollutant” generally prohibited
without a permit [CWA § 301(a)]
National Pollutant Discharge Elimination System
(NPDES) Permits [CWA § 402]
◦ Individual permits
◦ General permits
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State authorization
◦ 46 States and authorized territories
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Effluent limits [CWA § 301(b)]
◦ Technology based [CWA § 304(b)]
 Effluent guidelines (BAT)
 Best professional judgment (BPJ)
◦ Water quality based [CWA § 303]
 Permit needs to achieve State water quality standards
 For purposes of the CWA, State waters are internal waters
and the 3 mile territorial sea
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Processing (General Permits)
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Proposed draft permit
Public comment (Ended August 1, 2008)
Issue final permit
Vessel files notice to be covered under general permit
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STATUTORY exclusions: Stated in the CWA itself
and thus unaffected by lawsuit:
◦ Vessels operating as a means of transportation beyond
3 mile limit [CWA § 502(12)(B)]
◦ Sewage from vessels or discharges incidental to the
normal operation of vessels of the Armed Forces,
within the meaning of § 312 [CWA § 502(6)(A)]
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REGULATORY exclusion (vacated by court case)
[40 CFR 122.3(a)]
EPA excluded certain discharges incidental to the
normal operation of vessels from the obligation
to obtain an NPDES permit
◦ Issued in May 1973
◦ Never previously challenged
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Rulemaking petition
◦ Jan 1999: Petition from Northwest Environmental Advocates, Center for
Marine Conservation, Great Lakes United
 Petition concerns focused on ballast water
◦ Sept 2003: EPA denied petition based on Congressional acquiescence and
Coast Guard authority under NISA
◦ Dec. 2003: Lawsuit filed by Northwest Environmental Advocates and
others challenging petition denial
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Litigation & outcome in U.S. District Court
◦ March 2005: Ruling that the regulation (40 CFR 122.3(a)) excluding
discharges incidental to the normal operation of a vessel from NPDES
permitting exceeded the Agency’s authority under the CWA
◦ Sept 2006: Final order vacating (revoking) the regulatory exclusion as of
September 30, 2008, and potentially affects all incidental discharges of
vessels
Current status
◦ August 2007: Appellate oral arguments with 9th Circuit
◦ July 2008: 9th Circuit upholds lower court decision
◦ August 2008: US District Court grants extension to December 19, 2008
◦ December 2008: US District Court grants extension to Feb 6, 2009
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All vessels with discharges of pollutants over 79’
will need permit coverage by 2/6/2009
(60,000+)
Congressional exemption for recreational
boaters and fishing vessels
Coverage automatic on February 6, 2009;
vessels allowed 6-9 months to file NOI
Not just limited to ballast water discharges but
includes other operational discharges
◦ But does NOT affect exemptions specifically
contained in CWA itself (see earlier slide)
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EPA Vessel Vacatur Taskforce
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EPA Request for Comments
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◦ Proposed VGP issued June 17, 2008 (comment period
ended August 1, 2008)
◦ Implications of Court’s decision, vessel discharge
inventory, best management practices and/or
regulatory requirements already in place
General permit published December 19, 2008
Compliance extension granted by CA District Court
to February 6, 2009
Continued coordination with USCG and EPA
Enactment of Federal legislation with CWA
exclusion text (moots court case) still possible
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How to define and categorize the universe of
vessels?
How to inform affected universe that they need
to obtain permit coverage?
How to define and categorize operational
discharges and control technologies/BMPs?
How to determine technology requirements using
BPJ factors? Availability and feasibility as criteria.
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How to address State WQ standards that vary
reach-by-reach or State to State?
How to integrate with any applicable
international or domestic requirements under
statutes besides CWA? (e.g., Coastal Zone
Management Act which requires State
certification as to consistency with coastal zone
management plans)
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Deck Washdown and
Runoff
Bilgewater
Ballast Water
Anti-fouling Hull
Coatings
AFFF
Boiler/Economizer
Blowdown
Cathodic Protection
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Chain Locker Effluent
Controllable Pitch
Propeller Hydraulics
Elevator Pit Effluent
Firemain System
Graywater
Non-Oily Machinery
Wastewater
Reefer and Air
Condensate
Discharge
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Rudder Bearing
Lube Discharge
Seawater Cooling
Overboard
Seawater Piping
Biofouling
Prevention
Small Boat Engine
Wet Exhaust
Stern Tube Oily
Discharge
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Underwater Ship
Husbandry
Graywater +
Sewage
Exhaust Gas
Scrubber
Washwater
Materials (including
Hazmat) storage
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Incorporate current legal requirements
Create Best Management Practices (BMPs)
reflecting current practices
Some “add ons” with biggest impacts on
vessels not going outside 3 nm and those
that do but remain inside for extended period
(anchorage, repairs, etc.)
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Use of ambiguous terms (minimize, where
practical, to the extent possible)
Insufficient science and fleet data to justify
discharge restrictions (no environmental impacts
analysis)
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Lack of temporal and spatial distribution data
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State 401 certification process and varying state
requirements
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Kathy Metcalf
Director, Maritime Affairs
Chamber of Shipping of America
1730 M Street, NW
Suite 407
Washington, DC 20036
Kmetcalf@knowships.org
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