[Senate Report 113-304]
[From the U.S. Government Publishing Office]
Calendar No. 620
113th Congress } { REPORT
SENATE
2d Session } { 113-304
______________________________________________________________________
VESSEL INCIDENTAL DISCHARGE ACT
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 2094
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
December 10, 2014.--Ordered to be printed
______
U.S. GOVERNMENT PRINTING OFFICE
49-010 WASHINGTON : 2014
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred thirteenth congress
second session
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
BARBARA BOXER, California JOHN THUNE, South Dakota
BILL NELSON, Florida ROGER F. WICKER, Mississippi
MARIA CANTWELL, Washington ROY BLUNT, Missouri
MARK PRYOR, Arkansas MARCO RUBIO, Florida
CLAIRE McCASKILL, Missouri KELLY AYOTTE, New Hampshire
AMY KLOBUCHAR , Minnesota DEAN HELLER, Nevada
MARK BEGICH, Alaska DANIEL COATS, Indiana
RICHARD BLUMENTHAL, Connecticut TIM SCOTT, South Carolina
BRIAN SCHATZ, Hawaii TED CRUZ, Texas
ED MARKEY, Massachusetts DEB FISCHER, Nebraska
CORY BOOKER, New Jersey RON JOHNSON, Wisconsin
JOHN WALSH, Montana
Ellen Doneski, Staff Director
John Williams, General Counsel
David Schwietert, Republican Staff Director
Nick Rossi, Republican Deputy Staff Director
Rebecca Seidel, Republican General Counsel
Calendar No. 620
113th Congress } { Report
SENATE
2d Session } { 113-304
======================================================================
VESSEL INCIDENTAL DISCHARGE ACT
_______
December 10, 2014.--Ordered to be printed
_______
Mr. Rockefeller, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
[To accompany S. 2094]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 2094) to provide for the
establishment of nationally uniform and environmentally sound
standards governing discharges incidental to the normal
operation of a vessel, having considered the same, reports
favorably thereon with an amendment (in the nature of a
substitute) and recommends that the bill (as amended) do pass.
Purpose of the Bill
The purpose of S. 2094, the Vessel Incidental Discharge
Act, is to provide for the establishment of nationally uniform
and environmentally sound standards for the regulation of
ballast water discharges and other discharges that are
incidental to the normal operation of vessels.
Background and Needs
Ballast water discharged from vessels has been, and
continues to be, of serious concern as one of several vectors
for the introduction into ecosystems of aquatic invasive
species. One of the best known examples of introduction of an
aquatic invasive species via ballast water is that of the zebra
mussel (Dreissena polymorpha). The zebra mussel is indigenous
to freshwater lakes and rivers in Eastern Europe and Western
Asia, but was discovered in North America in Lake St. Clair,
which connects Lake Huron and Lake Erie, in 1988. It is
generally accepted by the scientific community that the species
arrived there in ballast water discharged by vessels coming
from European ports. Since arriving in North America, the zebra
mussel has spread throughout and beyond the Great Lakes. The
introduction of this nonindigenous filter-feeder has
drastically altered ecosystems in the Great Lakes and
elsewhere.
Although the problem of, and solution to, introduction of
invasive species through ballast water are clear, the laws and
regulations that govern ballast water management and the
management of other discharges incidental to the normal
operation of vessels could hardly be more confusing. Currently
these incidental discharges are regulated by a patchwork of
Federal and State laws and regulations. In 1973, when the
Environmental Protection Agency (EPA) first implemented the
National Pollutant Discharge Elimination System (NPDES)
pursuant to section 402 of the Clean Water Act, it excluded
discharges incidental to the normal operation of a vessel from
the permitting requirement for the discharge of pollutants by
point sources under NPDES.\1\ At the time, the EPA reasoned
that the exclusion was warranted because ``this type of
discharge generally causes little pollution and exclusion of
vessel wastes from the permit requirements will reduce
administrative costs drastically.''\2\ This exemption remained
in place until 2005, when the 9th Circuit Court of Appeals
upheld a Federal district court ruling that the EPA's 32-year-
old regulatory exclusion of vessel discharges from NPDES was
ultra vires to the Clean Water Act.\3\
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\1\National Pollutant Discharge Elimination System, 38 Fed. Reg.
13528 (May 22, 1973) (to be codified at 40 C.F.R. pt. 125).
\2\ Id.
\3\Northwest Envtl. Advocates et al. v. U.S. Envtl. Prot. Agency,
537 F.3d 1006 (9th Cir. 2008).
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Separately, during the three decades in which the NPDES
vessel exclusion was in place, Congress responded to growing
concerns about zebra mussels and other aquatic invasive species
in the United States by enacting the Nonindigenous Aquatic
Nuisance Prevention and Control Act of 1990\4\ (NANPCA), and
amendments thereto by the National Invasive Species Act\5\
(NISA) in 1996. NANPCA/NISA requires the Coast Guard, in
coordination with the EPA and other relevant Federal agencies,
to establish and administer a ballast water management program
to prevent introduction and dispersal of nonindigenous species
into the waters of the United States.
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\4\Nonindigenous Aquatic Nuisance Prevention and Control Act of
1990, Pub. L. No. 101--646, 104 Stat. 4761 (1990).
\5\National Invasive Species Act, Pub. L. No. 104--332, 110 Stat.
4073 (1996).
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Also prior to the overturn of the EPA's regulatory
exclusion of vessels from NPDES, the Coast Guard in 2004, with
the State Department, led the U.S. Delegation to the
International Maritime Organization (IMO) Diplomatic Conference
on Ballast Water Management for Ships, at which the
International Convention for the Control and Management of
Ships' Ballast Water and Sediments\6\ (Convention) was adopted.
The Convention includes provisions for the experimental testing
of prototype ballast water treatment systems on operating
vessels that is largely based on the Coast Guard's own
Shipboard Technology Evaluation Program, implemented in January
2004.\7\ It also contains a provision advanced by the U.S.
Delegation for the sampling of ballast water discharged by
ships as a port state control activity, in order to help port
states ensure foreign-flagged vessels' compliance with the
Convention's treatment and other management requirements.\8\
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\6\International Convention for the Control and Management of
Ships' Ballast Water and Sediments, 2004, available at http://
www.uscg.mil/hq/cg5/cg522/cg5224/docs/BWM-Treaty.pdf.
\7\ Id. Section D, Regulation D-4.
\8\ Id. Article 9.
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Most importantly, the Convention includes a ballast water
treatment standard based on the number of living organisms
contained in discharged ballast water that is the most
stringent standard scientifically proven to be achievable and
detectable today. Specifically, Regulation D-2 requires that
ballast water discharge contain: (1) less than 10 viable
organisms per cubic meter of ballast water that are greater
than or equal to 50 micrometers in minimum dimension; and (2)
less than 10 viable organisms per milliliter of ballast water
that are less than 50 micrometers in minimum dimension and
greater than or equal to 10 micrometers in minimum
dimension.\9\ Regulation D-2 further requires that ballast
water discharge contain only minimal concentrations of certain
human health indicator microbes, as follows: (1) less than one
colony-forming unit (CFU) of toxicogenic Vibrio cholerae
(serotypes O1 and O139) per 100 milliliters of ballast water,
or less than 1 CFU per one gram (wet weight) of zooplankton
samples; (2) less than 250 CFUs of Escherichia coli per 100
milliliters of ballast water; and (3) less than 100 CFUs of
intestinal Enterococci per 100 milliliters of ballast
water.\10\
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\9\ Id. Section D, Regulation D-2.
\10\ Id.
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Today, as a result of these independent developments, both
the Coast Guard and EPA are regulating ballast water under
separate, inconsistent, and sometimes directly conflicting sets
of requirements--the Coast Guard under NANPCA/NISA and the EPA
under the Clean Water Act and NPDES. While both the Coast Guard
and the EPA have adopted the Regulation D-2 standard as their
treatment standard for ballast water, there is considerable
confusion between Federal regulators and among vessel owner/
operators over how to administer, and properly comply with, the
Coast Guard and EPA's separate requirements.
As an example, both the Coast Guard and EPA require a
ballast water management system (BWMS) aboard a vessel covered
by their regulations. On the one hand, the Coast Guard's
regulations generally require that a BWMS be type-approved by
the Coast Guard.\11\ In the case of a manufacturer whose BWMS
has been approved by a foreign regulatory authority pursuant to
Convention standards, that manufacturer may request a Coast
Guard determination that its BWMS qualifies as an Alternate
Management System (AMS). On the other hand, the EPA's Vessel
General Permit (VGP) requires only that a BWMS ``has been shown
to be effective by testing conducted by an independent third
party laboratory, test facility or test organization.''\12\
Although a BWMS approved by the Coast Guard is deemed by the
VGP to comply with its effectiveness requirement, a BWMS may
also be tested and found effective under the VGP by another
``laboratory, test facility, or test organization,'' even
though it hasn't been approved by the Coast Guard. Thus a BWMS
could end up being installed on a vessel in compliance with the
VGP, even though it does not (and may never) comply with Coast
Guard regulations.
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\11\33 C.F.R. Sec. 151.2025(a)(1) (2013).
\12\Vessel General Permit for Discharges Incidental to the Normal
Operation of Vessels (December 19, 2013) (VGP), Section 2.2.3.5.1.1,
available at http://www.epa.gov/npdes/pubs/vgp_permit2013.pdf.
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Furthermore, no BWMS has yet received type-approval from
the Coast Guard because the type-approval process has taken
longer than expected. Coast Guard regulations allow for the
extension of compliance deadlines to accommodate delays in
type-approval, but the EPA's VGP is vague as to how it will or
will not apply when Coast Guard has granted a compliance date
extension.\13\ The VGP took effect for most commercial vessels
on December 19, 2013, while the first BWMS is not expected to
be type-approved by the Coast Guard until 2015 at the earliest.
Are vessel owner/operators expected to install VGP-compliant
BWMS that may or may not later be approved by the Coast Guard?
The EPA's only guidance in this regard is that, in cases where
(1) the vessel has received a compliance date extension from
the Coast Guard; (2) the vessel is not in compliance with the
ballast water numeric discharge limit under the VGP; and (3)
the vessel is otherwise in compliance with the VGP, the EPA
will, subject to additional case-by-case considerations,
``consider such violations of the VGP ballast water numeric
discharge limit a low enforcement priority.''\14\
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\13\ See id. Section 1.9.1 (stating only that ``Regarding
implementation dates of the limits found in Part 2.2.3.5 of the VGP,
EPA advises that where the U.S. Coast Guard has granted or denied an
extension request pursuant to 33 CFR 151.2036, that information will be
considered by EPA, but is not binding on EPA.'').
\14\Memorandum from Cynthia Giles, EPA Assistant Administrator, to
Regional Vessel General Permit Enforcement and Program Directors (Dec.
27, 2013), available at http://www2.epa.gov/sites/production/files/
2013-12/documents/vesselgeneralpermit-erp.pdf.
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Another example of the conflict and confusion between the
two regimes is the VGP requirement of ballast water exchange
combined with the use of a BWMS for certain vessels that enter
the Great Lakes after operating outside the U.S. Exclusive
Economic Zone.\15\ This requirement stands in contrast to Coast
Guard and IMO regulations, which do not require this
combination of management methods. These inconsistent
requirements are certain to cause confusion among vessel owner/
operators, and particularly among owner/operators of foreign-
flagged vessels. Some foreign vessel owner/operators have even
suggested that this and other Clean Water Act requirements
seem, to the extent they are inconsistent with IMO
requirements, like thinly veiled non-tariff barriers to trade.
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\15\VGP section 2.2.3.7.
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Challenges abound not only with respect to proper
compliance with, but also proper enforcement of, these
conflicting requirements. Most notable among them is the fact
that the Coast Guard is both required to enforce its own
ballast water management and other vessel operational
requirements, and also relied upon to enforce the EPA's
conflicting vessel operational requirements under the VGP.\16\
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\16\Memorandum of Understanding between the U.S. Environmental
Protection Agency, Office of Enforcement and Compliance Assurance, and
the U.S. Coast Guard, Office of Marine Safety, Security and
Stewardship, for Collaboration on Compliance Assistance, Compliance
Monitoring, and Enforcement of Vessel General Permit Requirements on
Vessels (Feb. 11, 2011), http://www.uscg.mil/hq/cgcvc/cvc1/general/vgp/
CG_EPA_MOU.pdf.
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On top of this duplicative, inconsistent, and confusing
Federal regime, subjecting vessels to NPDES has also opened the
door for States to establish their own varying standards and
requirements for vessel incidental discharges. The States of
California, Michigan, Minnesota, Ohio, Oregon, and Washington
are among those that already have promulgated their own ballast
water management requirements that also apply to commercial
vessels navigating in State waters.
The State of California has enacted a ballast water
treatment standard at the recommendation of the California
State Lands Commission (CSLC) that requires less than 0.01
living organisms measuring between 10 and 50 micrometers per
milliliter of ballast water discharged (1000 times the IMO D-2
standard) and requires zero detectable living organisms greater
than 50 micrometers per milliliter of ballast water
discharged.\17\ However, the State has continued to delay
implementation of its requirement that vessel owner/operators
install BWMS that meet these standards, because no BWMS are
available that meet California's treatment standards. In the
CSLC staff's words:
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\17\Cal. Pub. Res. Code Sec. 71205.3 (West 2014).
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More specifically, shipboard ballast water treatment
systems cannot be considered available to meet the
California performance standards because: 1) no ballast
water treatment system has demonstrated efficacy for
all of the California performance standards based on
the best available data; 2) there are no suitable
methods/technology to analyze ballast water samples to
determine treatment system efficacy for some of the
California performance standards; and 3) a lack of
sampling/compliance protocols precludes the ability of
the Commission to make a conclusive determination about
the availability of shipboard ballast water treatment
systems to meet the California performance
standards.\18\
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\18\California State Lands Commission, 2014 Assessment of the
Efficacy, Availability, and Environmental Impacts of Ballast Water
Treatment Technologies for Use in California Waters 32 (Aug. 2014),
available at http://www.slc.ca.gov/spec_pub/mfd/ballast_water/
Documents/Reports/2014CSLC_BWTechReport_Final-2.pdf.
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The States of Oregon and Washington, meanwhile, have
adopted a number of reporting, record keeping, and inspection
requirements, as well as certain ballast water open sea
exchange measures, but neither State has yet imposed a
treatment standard under State law, as California has done. The
State of Washington's Ballast Water Management statute requires
that the Washington Department of Fish and Wildlife:
shall adopt by rule standards for the discharge of
ballast water into the waters of the state and their
implementation timelines. The standards are intended to
ensure that the discharge of ballast water poses
minimal risk of introducing nonindigenous species. In
developing these standards, the department shall
consider the extent to which the requirement is
technologically and practically feasible. Where
practical and appropriate, the standards must be
compatible with standards set by the United States
Coast Guard, the Federal Clean Water Act, or the
International Maritime Organization.\19\
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\19\Wash. Rev. Code Ann. Sec. 77.120.030 (West 2014) (citation
omitted).
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The State of Oregon's ballast water management statute
contains similar language regarding technological and practical
feasibility.\20\ Oregon's statute also includes a requirement
that its ballast water standards and procedures be, ``To the
extent practicable . . . consistent with relevant rules adopted
by the States of California and Washington,''\21\ but it is
unclear how Oregon, or Washington for that matter, can
reconcile its practicability-based approach to ballast water
treatment with that of California, which has taken a very
different approach.
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\20\ See Or. Rev. Stat. Ann. Sec. 783.635 (West 2014) (providing,
in part, that ``[t]he Environmental Quality Commission may adopt by
rule standards and procedures that the commission considers necessary
to carry out the provisions of ORS 783.625 to 783.640. The standards
and procedures must minimize the risk of introducing aquatic invasive
species into the waters of this state and must be based on the
availability of treatment technology. Rules adopted under this
subsection include, but are not limited to: Standards for the discharge
of ballast water into the waters of this state and appropriate
timelines for the implementation of the standards. In adopting the
standards, the commission shall consider the extent to which treatment
technology is feasible, practicable and commercially available, or
expected to be available, by the proposed implementation timelines.''
(emphasis added)).
\21\ Id.
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In all, 25 States have certified the VGP subject to
additional, individual State requirements. The potential
compliance challenges posed by this situation are staggering.
As an example, a commercial vessel owner/operator transiting
the full length of the Mississippi River is required to comply
not only with applicable Coast Guard requirements under NANPCA/
NISA and the EPA's VGP requirements, but also with varying
additional VGP permit requirements imposed by the States of
Minnesota, Wisconsin, Iowa, Illinois, Missouri, and Arkansas.
This complicated, inefficient, and confusing patchwork of
Federal and State requirements will only continue to grow,
confusing vessel owner/operators seeking in good faith to
comply, confounding law enforcement authorities, unnecessarily
impeding maritime commerce, and, most importantly, diminishing
the overall effectiveness of U.S. efforts to prevent the
introduction of aquatic invasive species. Strong, uniform
national standards are necessary to effectively defend against
invasive species brought to the U.S. in ballast water
discharges.
The Vessel Incidental Discharge Act would require the
Secretary of the department in which the Coast Guard is
operating, in consultation with the Administrator of the EPA,
to establish and implement enforceable, uniform, national
standards and requirements for the regulation of ballast water
discharges and other discharges incidental to the normal
operation of vessels. The new standards and requirements would
be required to be based upon the best available technology
economically achievable, and would generally supersede the
current jumble of Federal and State incidental discharge
requirements. Enforcement responsibilities with respect to
these uniform standards and requirements would be vested in the
Secretary and the States.
Summary of Provisions
S. 2094 would require the Secretary of the department in
which the Coast Guard is operating, in consultation with the
Administrator of the EPA, to establish and implement uniform
national standards for the regulation of ballast water
discharges and other discharges incidental to the normal
operation of vessels. The new standards would be based upon the
best available technology economically achievable, and would
generally supersede the current jumble of Federal and State
incidental discharge requirements. The initial ballast water
treatment standard under S. 2094 would be the IMO D-2
Standard--the most stringent treatment standard scientifically
proven to be achievable and detectable today. In 2022, a
revised standard would take effect that is 100 times more
stringent than the initial standard, unless the Secretary and
Administrator determine the revised standard is not yet
feasible, in which case the most stringent standard that is
feasible would be adopted. If a standard more stringent than
100 times the initial standard is determined to be feasible,
that standard would become the revised standard. Thereafter,
decennial feasibility reviews would be required to determine
whether further revisions of the ballast water standard would
result in a scientifically demonstrable and substantial
reduction in the risk of the introduction of aquatic nuisance
species. These decennial reviews could also look at other
vessel discharges for which standards are established under the
Act, to determine if revising those standards would
substantially reduce their impacts on navigable waters.
Enforcement responsibilities would be vested in the Secretary.
States also would be authorized to enforce the standards and
requirements established under the Act.
Legislative History
S. 2094, the Vessel Incidental Discharge Act, was
introduced by Senators Begich, Rubio, Ayotte, Blunt, Boozman,
Casey, Cochran, Collins, Hirono, Landrieu, McCaskill, Markey,
Murkowski, Nelson, Pryor, Rockefeller, Schatz, Thune, Toomey,
Vitter, Warren, and Wicker on March 6, 2014, and referred to
the Committee on Commerce, Science, and Transportation. On July
23, 2014, the Committee met in open Executive Session and, by a
voice vote, ordered S. 2094 reported with three technical
amendments offered by Senator Wicker.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
S. 2094--Vessel Incidental Discharge Act
S. 2094 would amend the environmental standards for some
water that is discharged from ships and permanently exempt
certain smaller vessels from those standards. Under current
law, the United States Coast Guard (USCG) and the Environmental
Protection Agency (EPA) set and enforce those standards.
S. 2094 would change the procedures for how the United
States regulates water discharged from certain vessels. The
legislation would increase the administrative responsibilities
of USCG to implement certain laws that govern water discharged
from ships and require that USCG complete those
responsibilities in consultation with EPA. Under current law,
most of those responsibilities are administered by EPA under
the Clean Water Act.
Under the bill, EPA would no longer issue water discharge
permits to vessels. However, based on information from EPA, CBO
estimates that any cost savings to the agency would be
negligible because it would still have other responsibilities
under the Clean Water Act. Based on information from the USCG,
CBO estimates that the Coast Guard would gradually add 15 staff
members over the next couple of years at a cost of $5 million
over the 2015-2019 period, assuming appropriation of the
necessary amounts. Those additional staff would conduct
enforcement actions and review any proposals from states for
more stringent water discharge standards.
Enacting S. 2094 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
S. 2094 contains intergovernmental mandates as defined in
the Unfunded Mandates Reform Act (UMRA). The bill would preempt
state and local laws relating to water discharges from vessels
by establishing a national uniform standard and set of best
management practices. CBO estimates that this preemption would
not impose costs on state and local governments. Although it
would limit the applications of state and local regulations,
the bill would impose no duty on state or local governments
that would result in additional spending or a loss of revenues.
The bill also would impose a private-sector mandate, as
defined in UMRA, on manufacturers and importers of certain
water treatment technology. Those entities would be prohibited
from selling such technology unless it has been certified by
the USCG or certified by a foreign entity and deemed to meet
equivalent levels of performance and safety. The cost of the
mandate would be the cost of obtaining certification and any
net loss of income from forgone sales. Under current law,
manufacturers of water treatment technology already need to
obtain USCG certification because owners of vessels that use
such technology are required to install USCG-certified
technology by a certain date. If the certification process
under the bill is very similar to the certification process
conducted under current law, the incremental cost of complying
with the mandate would be small. However, the incremental cost
of the mandate could be higher. On balance, CBO expects the
cost of the private-sector mandate would probably be less than
the annual threshold established in UMRA ($152 million in 2014,
adjusted annually for inflation).
The CBO staff contacts for this estimate are Sarah Puro
(for federal costs), Jon Sperl (for the state and local
impact), and Amy Petz (for the private-sector impact). The
estimate was approved by Theresa Gullo, Deputy Assistant for
Budget Analysis.
Regulatory Impact
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
number of persons covered
S. 2094 as reported does not create any new programs or
impose any new regulatory requirements, and therefore will not
subject any individuals or businesses to new regulations. It
would streamline regulatory compliance for the owners and
operators of approximately 70,000 vessels. It would permanently
exempt approximately 120,000 vessels from incidental vessel
discharge rules and thus reduce the regulatory burden on the
owners and operators of those vessels.
economic impact
Enactment of this legislation is not expected to have any
significant adverse impacts on the Nation's economy.
privacy
The bill will not impact the personal privacy of
individuals.
paperwork
By replacing myriad Federal and State vessel incidental
discharge requirements with a single set of national
requirements, S. 2094 will likely reduce paperwork requirements
for individuals and businesses.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides that no
provisions contained in the bill, as reported, meet the
definition of congressionally directed spending items under the
rule.
Section-by-Section Analysis
Section 1. Short title; table of contents.
This section would provide that this Act may be cited as
the ``Vessel Incidental Discharge Act''.
Section 2. Findings; purpose.
This section would set forth findings of Congress and state
that the purpose of this Act is to provide for the
establishment of nationally uniform and environmentally sound
standards for discharges incidental to the normal operation of
a vessel in the navigable waters of the United States.
Section 3. Definitions.
This section would define the terms ``Administrator,''
``aquatic nuisance species,'' ``ballast water,'' ``ballast
water performance standard,'' ``ballast water treatment
technology'' or ``treatment technology,'' ``biocide,''
``discharge incidental to the normal operation of a vessel,''
``geographically limited area,'' ``manufacturer,''
``Secretary,'' and ``vessel.''
Section 4. Regulation and enforcement.
This section would require the Secretary of the department
in which the Coast Guard is operating, in consultation with the
Administrator of the EPA, to establish and implement
enforceable uniform national standards for the regulation of
discharges incidental to the normal operation of a vessel.
These standards would be required to be based upon the best
available technology economically achievable, and generally
would supersede any other permitting requirement or prohibition
on discharges incidental to the normal operation of a vessel to
which the Act would apply, under any other provision of law.
The Secretary would be required to enforce the standards and
requirements under the Act, and each State would be authorized
to enforce the standards and requirements under the Act.
Section 5. Uniform national standards and requirements for the
regulation of discharges incidental to the normal operation of
a vessel.
This section would provide for the establishment and future
review and revision of rules regulating discharges incidental
to the normal operation of a vessel.
Subsection (a) would provide that the requirements set
forth in the final rule, Standards for Living Organisms in
Ship's Ballast Water in U.S. Waters (77 Fed. Reg. 17254 (March
23, 2012), as corrected at 77 Fed. Reg. 33969 (June 8, 2012)),
shall be the management requirements for a ballast water
discharge incidental to the normal operation of a vessel until
the Secretary revises the ballast water performance standard
under subsection (b) or adopts a more stringent State standard.
It would require the Secretary to adopt a more stringent State
ballast water performance standard if the Secretary makes a
determination in favor of a State petition under section 10 of
the Act. It would also require the Secretary, in consultation
with the Administrator, to issue a final rule governing
discharges incidental to the normal operation of a vessel other
than ballast water not later than two years after the date of
enactment of this Act.
Subsection (b)(1) would require the Secretary, in
consultation with the Administrator, to issue a final rule not
later than January 1, 2022, revising the ballast water
performance standard under subsection (a) so that a ballast
water discharge incidental to the normal operation of a vessel
will contain: less than one organism that is living or has not
been rendered harmless per 10 cubic meters that is 50 or more
micrometers in minimum dimension; less than one organism that
is living or has not been rendered harmless per 10 milliliters
that is less than 50 micrometers in minimum dimension and more
than 10 micrometers in minimum dimension; concentrations of
indicator microbes that are less than one colony-forming unit
of toxicogenic Vibrio cholera (serotypes O1 and O139) per 100
milliliters or less than one colony-forming unit of that
microbe per gram of wet weight of zoological samples, less than
126 colony forming units of Escherichia coli per 100
milliliters, and less than 33 colony-forming units of
intestinal Enterococci per 100 milliliters; and concentrations
of such additional indicator microbes and of viruses as may be
specified in regulations issued by the Secretary, in
consultation with the Administrator and such other Federal
agencies as the Secretary and the Administrator deem
appropriate.
Under subsection (b)(2), issuance of a final rule under
subsection (b)(1) would be subject to a feasibility review.
This review would be required to be completed by the Secretary,
in consultation with the Administrator, not less than two years
before January 1, 2022, for the purpose of determining the
feasibility of achieving the required, revised ballast water
performance standard under this subsection. In conducting the
feasibility review, the Secretary would be required to consider
whether revising the ballast water performance standard will
result in a scientifically demonstrable and substantial
reduction in the risk of introduction or establishment of
aquatic nuisance species, taking into account the following
criteria:
improvements in the scientific understanding
of biological and ecological processes that lead to the
introduction or establishment of aquatic nuisance
species;
improvements in ballast water treatment
technology, including: the capability of such treatment
technology to achieve a revised ballast water
performance standard; the effectiveness and reliability
of such treatment technology in the shipboard
environment; the compatibility of such treatment
technology with the design and operation of a vessel by
class, type, and size; the commercial availability of
such treatment technology; and the safety of such
treatment technology;
improvements in the capabilities to detect,
quantify, and assess the viability of aquatic nuisance
species at the concentrations under consideration;
the impact of ballast water treatment
technology on water quality; and
the costs, cost-effectiveness, and impacts
of: a revised ballast water performance standard on
shipping, trade, and other uses of the aquatic
environment; and of maintaining the existing ballast
water performance standard, including the potential
impacts on water-related infrastructure, recreation,
propagation of native fish, shellfish, and wildlife,
and other uses of navigable waters.
If the Secretary, in consultation with the Administrator,
determined on the basis of the feasibility review and after an
opportunity for a public hearing that no ballast water
treatment technology can be certified under section 6 to comply
with the revised ballast water performance standard under
paragraph (1), then the Secretary would be directed to require
the use of the treatment technology that achieves the
performance levels of the best performing treatment technology
available. If the Secretary, in consultation with the
Administrator, determined that requirements for the best
performing treatment technology available under clause (i)
cannot be implemented before the implementation deadline
provided in subsection (b)(3) with respect to a class of
vessels, then the Secretary would be required to extend the
implementation deadline for that class of vessels for not more
than 36 months. If an implementation deadline were extended,
the Secretary would be required to recommend action to ensure
compliance with the extended implementation deadline under
clause (ii).
If the Secretary, in consultation with the Administrator,
determined that ballast water treatment technology existed that
exceeded the revised ballast water performance standard
prescribed in subsection (b)(1) with respect to a class of
vessels, then the Secretary would be required to revise the
ballast water performance standard for that class of vessels to
incorporate that higher performance standard. If the Secretary,
in consultation with the Administrator, determined that ballast
water treatment technology could be implemented before the
implementation deadline under subsection (b)(3) with respect to
a class of vessels, then the Secretary would be required to
accelerate the implementation deadline for that class of
vessels. If an implementation deadline were accelerated, the
Secretary would be required to provide not less than 24 months'
notice before the deadline took effect.
Under subsection (b)(3), the revised ballast water
performance standard required by this subsection would apply to
a vessel beginning on the date of the first drydocking of the
vessel on or after January 1, 2022, but not later than December
31, 2024.
Subsection (b)(4) allows for the Secretary to establish a
compliance deadline for compliance by a vessel (or a class,
type, or size of vessel) with a revised ballast water
performance standard under this subsection. In issuing
regulations under this subsection, the Secretary would be
required to establish a process for an owner or operator to
submit a petition to the Secretary for an extension of a
compliance deadline with respect to the vessel of the owner or
operator. An extension may be applied for a period not to
exceed 18 months from the date of the applicable deadline and
would be renewable for an additional period not to exceed 18
months. In issuing a compliance deadline or reviewing a
petition for extension of a deadline the Secretary would be
required to consider, with respect to the ability of the owner
or operator to meet a compliance deadline, the following
factors:
whether the treatment technology to be
installed is available in sufficient quantities to meet
the deadline;
whether there is sufficient shipyard or
other installation facility capacity;
whether there is sufficient availability of
engineering and design resources;
vessel characteristics, such as engine room
size, layout, or a lack of installed piping;
electric power generating capacity aboard
the vessel; and
safety of the vessel and crew.
The Secretary would be required to approve or deny a
petition for an extension of a compliance deadline submitted by
an owner or operator. If the Secretary did not approve or deny
a petition referred to in clause (i) on or before the last day
of the 90-day period beginning on the date of the petition, the
petition would be deemed approved.
Subsection (c) of this section would require the Secretary,
in consultation with the Administrator, to complete a review
ten years after the issuance of a revised final rule under
subsection (b) and every ten years thereafter to determine
whether further revision of the ballast water performance
standard would result in a scientifically demonstrable and
substantial reduction in the risk of the introduction or
establishment of aquatic nuisance species.
Subsection (c) also would permit the Secretary, in
consultation with the Administrator, to include in these
decennial reviews standards for discharges other than ballast
water which are covered by this section. The Secretary would be
required to initiate a rulemaking to revise one or more best
management practices for such discharges after a decennial
review if the Secretary, in consultation with the
Administrator, determined that revising one or more of such
practices would substantially reduce the impacts on navigable
waters of discharges incidental to the normal operation of a
vessel other than ballast water. In reviewing a ballast water
performance standard under this subsection, the Secretary, the
Administrator, and the heads of other appropriate Federal
agencies as determined by the Secretary, would be required to
consider the same review criteria required in the feasibility
review under subsection (b)(2).
The Secretary would be required to initiate a rulemaking to
revise the ballast water performance standard after a decennial
review if the Secretary, in consultation with the
Administrator, determined that revising the performance
standard would result in a scientifically demonstrable and
substantial reduction in the risk of the introduction or
establishment of aquatic nuisance species.
Section 6. Treatment technology certification.
This section would establish the requirements and process
for the certification of ballast water treatment technology.
Subsection (a) would provide that, beginning one year after
the date that the requirements for testing protocols are issued
under subsection (i) of this section, no manufacturer of a
ballast water treatment technology shall sell, offer for sale,
or introduce or deliver for introduction into interstate
commerce, or import into the United States for sale or resale,
a ballast water treatment technology for a vessel unless the
treatment technology has been certified under this section.
Subsection (b) would provide that, upon application of a
manufacturer, the Secretary shall evaluate a ballast water
treatment technology with respect to its effectiveness in
achieving the current ballast water performance standard when
installed on a vessel (or a class, type, or size of vessel);
its compatibility with vessel design and operations; its effect
on vessel safety; its impact on the environment; its cost-
effectiveness; and any other criteria the Secretary considers
appropriate. If, after such evaluation, the Secretary
determined that the treatment technology meets the criteria,
then the Secretary would be authorized to certify the treatment
technology for use on a vessel (or a class, type, or size of
vessel). This subsection would also require the Secretary to
establish, by regulation, a process to suspend or revoke a
certification that has been issued.
Subsection (c) would provide that, in certifying a ballast
water treatment technology under this section, the Secretary,
in consultation with the Administrator, would be authorized to
impose any condition on the subsequent installation, use, or
maintenance of the technology onboard a vessel as is necessary
for: the safety of the vessel, the crew of the vessel, and any
passengers aboard the vessel; the protection of the
environment; or the effective operation of the technology.
Failure of a vessel owner or operator to comply with such a
condition would be considered a violation of this section.
Subsection (d) would require the Secretary to allow a
vessel on which a system is installed and operated to meet a
ballast water performance standard under this Act to continue
to use that system, notwithstanding any revision of a ballast
water performance standard occurring after the system is
installed, until the expiration of the service life of the
system as determined by the Secretary, so long as the system is
maintained in proper working condition and maintained and used
in accordance with the manufacturer's specifications and any
certification conditions imposed by the Secretary under this
section.
Subsection (e) would require that, if the Secretary
approves a ballast water treatment technology for certification
under subsection (b), the Secretary issue a certificate of
type-approval for the treatment technology to the manufacturer
in such form and manner as the Secretary determines
appropriate. A certificate of type-approval would be required
to specify each condition imposed by the Secretary under
subsection (c). A manufacturer that received a certificate of
type-approval for the treatment technology would be required to
provide a copy of the certificate to each owner and operator of
a vessel on which the technology is installed.
Subsection (f) would require that an owner or operator who
receives a copy of a certificate of type-approval retain a copy
of the certificate onboard the vessel and make it available for
inspection at all times while the owner or operator is
utilizing the treatment technology.
Subsection (g) would bar the Secretary from approving a
ballast water treatment technology if the technology: (1) uses
a biocide or generates a biocide that is a pesticide under the
Federal Insecticide, Fungicide, and Rodenticide Act, unless the
biocide is registered under that Act or the Secretary, in
consultation with Administrator, has approved the use of the
biocide in such treatment technology; or (2) uses or generates
a biocide, the discharge of which causes or contributes to a
violation of a water quality standard under section 303 of the
Federal Water Pollution Control Act.
Subsection (h) would provide generally that the use of a
ballast water treatment technology by an owner or operator of a
vessel shall not satisfy the requirements of this Act unless it
has been approved by the Secretary under subsection (b). An
owner or operator would, however, be permitted to use a ballast
water treatment technology that has not been certified to
comply with the requirements of this section if the technology
is being evaluated under the Coast Guard Shipboard Technology
Evaluation Program, or the technology has been certified by a
foreign entity and the certification demonstrates performance
and safety of the treatment technology equivalent to the
requirements of this section, as determined by the Secretary.
Subsection (i) would require the Administrator, in
consultation with the Secretary, to issue requirements not
later than 180 days after the date of enactment of this Act for
land-based and shipboard testing protocols or criteria for
certifying the performance of each ballast water treatment
technology under this section and certifying laboratories to
evaluate such treatment technologies.
Section 7. Exemptions.
Subsection (a) would provide that no permit shall be
required or prohibition enforced under any other provision of
law for, nor shall any standards under this Act apply to: (1) a
discharge incidental to the normal operation of a vessel if the
vessel is less than 79 feet in length and engaged in commercial
service (as defined in section 2101(5) of title 46, United
States Code); (2) a discharge incidental to the normal
operation of a vessel if the vessel is a fishing vessel,
including a fish processing vessel and fish tender vessel (as
defined in section 2101 of title 46, United States Code); (3) a
discharge incidental to the normal operation of a vessel if the
vessel is a recreational vessel (as defined in section 2101(25)
of title 46, United States Code); (4) the placement, release,
or discharge of equipment, devices, or other material from a
vessel for the sole purpose of conducting research on the
aquatic environment or its natural resources in accordance with
generally recognized scientific methods, principles, or
techniques; (5) any discharge into navigable waters from a
vessel authorized by an on-scene coordinator in accordance with
part 300 of title 40, Code of Federal Regulations, or part 153
of title 33, Code of Federal Regulations; (6) any discharge
into navigable waters from a vessel that is necessary to secure
the safety of the vessel or human life, or to suppress a fire
onboard the vessel or at a shoreside facility; or (7) a vessel
of the armed forces of a foreign nation when engaged in
noncommercial service.
Subsection (b) would provide that no permit shall be
required or prohibition enforced under any other provision of
law for, nor shall any ballast water performance standards
under this Act apply to: (1) a ballast water discharge
incidental to the normal operation of a vessel determined by
the Secretary to: operate exclusively within a geographically
limited area; operate exclusively within 1 Captain of the Port
Zone established by the Coast Guard unless the Secretary
determines such discharge poses a substantial risk of
introduction or establishment of an aquatic nuisance species;
operate pursuant to a geographic restriction issued as a
condition under section 3309 of title 46, United States Code
(or an equivalent restriction issued by the country of
registration of the vessel); or continuously take on and
discharge ballast water in a flow-through system that does not
introduce aquatic nuisance species into navigable species; (2)
a ballast water discharge incidental to the normal operation of
a vessel consisting entirely of water suitable for human
consumption; or (3) a ballast water discharge incidental to the
normal operation of a vessel in an alternative compliance
program established pursuant to section 8.
Subsection (c) would provide that no permit shall be
required or prohibition enforced under any other provision of
law for, nor shall any ballast water performance standard apply
to, a vessel that carries all of its permanent ballast water in
sealed tanks that are not subject to discharge. Subsection (c)
also would provide that nothing in this Act shall be
interpreted to apply to a vessel of the Armed Forces, as that
term is defined in section 101(a) of title 10, United States
Code.
Section 8. Alternative compliance program.
This section would authorize the Secretary, in consultation
with the Administrator, to promulgate regulations establishing
one or more alternative compliance programs for a vessel having
a maximum ballast water capacity of less than eight cubic
meters and for a vessel that is not less than three years from
the end of its useful life, as determined by the Secretary.
Vessels that discharge ballast water into a facility for the
reception of ballast water that meets standards promulgated by
the Administrator, in consultation of the Secretary, may have
an alternate compliance program. Within one year after the date
of enactment of this Act, the Administrator, in consultation
with the Secretary, would be required to promulgate standards
for the reception of ballast water from a vessel into a
reception facility and the disposal or treatment of the ballast
water.
Section 9. Judicial review.
This section would allow an interested person to file a
petition for review of a final regulation promulgated under
this Act in the United States Court of Appeals for the District
of Columbia Circuit. Such a petition would be required to be
filed not later than 120 days after the date that notice of the
promulgation appears in the Federal Register. In the case of a
petition that is based solely on grounds that arise after the
filing deadline has passed, the petitioner would be permitted
to file not later than 120 days after the date on which the
grounds for the petition first arose.
Section 10. Effect on State authority.
Subsection (a) of this section would provide generally that
no State or political subdivision thereof may adopt or enforce
any statute or regulation of the State or political subdivision
with respect to a discharge incidental to the normal operation
of a vessel after the date of enactment of this Act.
Notwithstanding the general prohibition of subsection (a),
under subsection (b) a State or political subdivision thereof
would be permitted to enforce a statute or regulation of the
State or political subdivision with respect to ballast water
discharges incidental to the normal operation of a vessel that
specifies a ballast water performance standard that is more
stringent than the ballast water performance standard under
section 5(a)(1)(A) and is in effect on the date of enactment of
this Act if the Secretary, after consultation with the
Administrator and any other Federal department or agency the
Secretary considers appropriate, makes a determination that:
compliance with any performance standard specified in the
statute or regulation can in fact be achieved and detected; the
technology and systems necessary to comply with the statute or
regulation are commercially available; and the statute or
regulation is consistent with obligations under relevant
international treaties or agreements to which the United States
is a party.
Under subsection (c), the Governor of a State seeking to
enforce a statute or regulation under subsection (b) would be
required to submit a petition requesting the Secretary to
review the statute or regulation. This petition would be
required to be accompanied by the scientific and technical
information on which it is based, and be submitted to the
Secretary not later than 90 days after the date of enactment of
this Act. The Secretary would be required to make a
determination on any such petition not later than 90 days after
the date on which the petition is received.
Section 11. Application with other statutes.
This section would provide that, notwithstanding any other
provision of law, this Act shall be the exclusive statutory
authority for regulation by the Federal Government of
discharges incidental to the normal operation of a vessel to
which this Act applies.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee states that the
bill as reported would make no change to existing law.
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