THE OPERATIONAL FOOTPRINT OF SHIPPING

1
THE OPERATIONAL FOOTPRINT OF SHIPPING

• Operations Committee
• Maritime Exchange for the Delaware River and Bay
• January 15, 2009

2
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)

3
Fundamentals of Marine Transportation

• 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.

4
DO THE NEEDS OF THE MARINE TRANSPORATION SYSTEM
AND MARINE ENVIRONMENT REPRESENT AN IRRESOLVABLE
CONFLICT?ABSOLUTLY NOT!!!
5
NATURE DOES NOTHING IN VAIN.

• Aristotle

6
WHY NOT?

• 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

7
YOU CANT BUILD A REPUTATION ON WHAT YOU ARE
GOING TO DO.

• Henry Ford

8
Where to begin?

• URGENT NEED FOR US RATIFICATION AND
  IMPLEMENTATION OF PENDING TREATIES
• UN Convention on the Law of the Sea
• MARPOL Annex VI Air Emissions (original 1997)
  ratified October 2008
• MARPOL Annex VI Air Emissions (2008
  amendments)
• Ballast Water Convention
• Anti-fouling Convention

9
Cooperative Endeavors

• 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

10
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

11
Other Issues

• 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)

12
IGNORANCE OF ENVIRONMENTAL ISSUES IS SIMPLY BAD
BUSINESS. DISREGARD OF THEM IS EVEN WORSE.

• Capt. John Henry Bates

13
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

14
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

15
Policy Considerations 1

• All entities currently regulating or trying to
  regulate air emissions from ships have legitimate
  legal jurisdiction to do so to SOME degree
• All entities have ethical responsibilities to
  constituents to assure a safe and healthy
  environment for their citizens

16
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

17
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

18
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

19
Annex VI Amendments - SOx

• GLOBAL
• 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
• 1.0 by 3/1/10
• .1 by 1/1/15

20
Annex VI Amendments - NOx

• NEW ENGINES
• 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
• No controls currently
• Tier I would apply subject to emission upgrade
  system certification by flag state

21
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)

22
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

23
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

24
BASIC FUNDAMENTALS

• 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!!!!

25
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!

26
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

27
LAY OF THE LEGAL LANDSCAPE

• 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

28
IMO CONVENTION VS. US LEGISLATION

• 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.)

29
DEVIL IS IN THE DETAILS (IMO Guidelines)

• 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

30
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 totalin partor
  not at all?
• Intentional or inadvertent loopholes with partial
  adoption of IMO requirements

31
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

32
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

33
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

34
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

35
DEVELOPING TECHNOLOGIES

• Filtration
• Other physical separation
• UV/IR or other electromagnetic spectra
  application
• Thermal
• Chemical biocides
• Ozone
• But..need performance standard to assess

36
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

37
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!

38
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

39
STATE ACTIONS

• 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

40
Clean Water Act Permitting andOperational
Discharges from Vessels
41
CRITICAL ISSUES

• Clean Water Act (CWA) Permit Basics
• Vessel General Permit and Exclusions
• Court Decision(s)
• Implications
• Questions Issues to Consider

42
CWA PERMIT BASICS For more info visit
http//cfpub.epa.gov/npdes/

• 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
• State authorization
• 46 States and authorized territories

43
CWA PERMIT BASICS Cont

• 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
• Processing (General Permits)
• Proposed draft permit
• Public comment (Ended August 1, 2008)
• Issue final permit
• Vessel files notice to be covered under general
  permit

44
PERMIT EXCLUSIONS

• 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)

45
PERMIT EXCLUSIONS Cont

• 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

46
COURT DECISIONFor more info visit
http//www.epa.gov/owow/invasive_species/ballast_w
ater.html

• 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
• 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 Agencys 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

47
IMPLICATIONS

• 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)

48
CURRENT ACTIVITIES

• EPA Vessel Vacatur Taskforce
• Proposed VGP issued June 17, 2008 (comment period
  ended August 1, 2008)
• EPA Request for Comments
• Implications of Courts 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

49
QUESTIONS CONSIDERED IN PROPOSED VGP

• 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.

50
QUESTIONS Cont

• 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)

51
Covered Discharges

• Deck Washdown and Runoff
• Bilgewater
• Ballast Water
• Anti-fouling Hull Coatings
• AFFF
• Boiler/Economizer Blowdown
• Cathodic Protection

• Chain Locker Effluent
• Controllable Pitch Propeller Hydraulics
• Elevator Pit Effluent
• Firemain System
• Graywater
• Non-Oily Machinery Wastewater
• Reefer and Air Condensate Discharge

52
Covered Discharges (contd)

• Rudder Bearing Lube Discharge
• Seawater Cooling Overboard
• Seawater Piping Biofouling Prevention
• Small Boat Engine Wet Exhaust
• Stern Tube Oily Discharge

• Underwater Ship Husbandry
• Graywater Sewage
• Exhaust Gas Scrubber Washwater
• Materials (including Hazmat) storage

53
EPA Approach to Discharge Management

• 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.)

54
Problems yet to be resolved

• Use of ambiguous terms (minimize, where
  practical, to the extent possible)
• Insufficient science and fleet data to justify
  discharge restrictions (no environmental impacts
  analysis)
• Lack of temporal and spatial distribution data
• State 401 certification process and varying state
  requirements

55
CONTACT INFORMATION

• Kathy Metcalf
• Director, Maritime Affairs
• Chamber of Shipping of America
• 1730 M Street, NW
• Suite 407
• Washington, DC 20036
• Kmetcalf_at_knowships.org