THE OPERATIONAL THE OPERATIONAL FOOTPRINT OF FOOTPRINT OF

SHIPPINGSHIPPING

Operations CommitteeOperations Committee

Maritime Exchange for the Maritime Exchange for the Delaware River and BayDelaware River and Bay

January 15, 2009January 15, 2009

US COMMISSION ON US COMMISSION ON OCEAN POLICYOCEAN POLICY

“…“…THE DOMINANT PARDIGM FOR THE DOMINANT PARDIGM FOR GOVERNING THE OCEANS WAS THE GOVERNING THE OCEANS WAS THE PRINCIPLE OF FREEDOM OF THE SEAS, PRINCIPLE OF FREEDOM OF THE SEAS, BASED ON THE PREMISE THAT THE BASED ON THE PREMISE THAT THE OCEANS WERE INFINITE AND MARINE OCEANS WERE INFINITE AND MARINE RESOURCES INEXHAUSTIBLE…”RESOURCES INEXHAUSTIBLE…”

(US COMMISSION ON OCEAN POLICY, DRAFT FINAL REPORT, PG. 358)(US COMMISSION ON OCEAN POLICY, DRAFT FINAL REPORT, PG. 358)

Fundamentals of Marine Fundamentals of Marine TransportationTransportation

Shipping is international… so should be the Shipping is international… so should be the regulation of shipping.regulation of shipping.

Consistency and predictability of Consistency and predictability of requirements is critical.requirements is critical.

Global increase in marine transportation will Global increase in marine transportation will be significant.be significant.

Need for coordinated global initiatives to Need for coordinated global initiatives to address maritime safety and protection of address maritime safety and protection of the marine environment.the marine environment.

Potential tensions among international and Potential tensions among international and domestic requirements.domestic requirements.

DO THE NEEDS OF THE DO THE NEEDS OF THE MARINE TRANSPORATION MARINE TRANSPORATION

SYSTEM AND MARINE SYSTEM AND MARINE ENVIRONMENT REPRESENT ENVIRONMENT REPRESENT

AN IRRESOLVABLE AN IRRESOLVABLE CONFLICT?CONFLICT?

ABSOLUTLY NOT!!!ABSOLUTLY NOT!!!

NATURE DOES NOTHING IN NATURE DOES NOTHING IN VAIN.VAIN.

AristotleAristotle

WHY NOT?WHY NOT? Shipping is global….so must be marine Shipping is global….so must be marine

environment and resources management environment and resources management even as applied to coastwise and offshore even as applied to coastwise and offshore operationsoperations

Both requires a systems approachBoth requires a systems approach Cultural shift from casualty focus to normal Cultural shift from casualty focus to normal

vessel operationsvessel operations Not conflicting processes but may represent Not conflicting processes but may represent

competing userscompeting users Both require expansion beyond man-made Both require expansion beyond man-made

boundary lines e.g. EEZboundary lines e.g. EEZ

YOU CAN’T BUILD A YOU CAN’T BUILD A REPUTATION ON WHAT YOU REPUTATION ON WHAT YOU

ARE GOING TO DO.ARE GOING TO DO.

Henry FordHenry Ford

Where to begin?Where to begin?URGENTURGENT NEED FOR US RATIFICATION AND NEED FOR US RATIFICATION AND

IMPLEMENTATION OF PENDING TREATIESIMPLEMENTATION OF PENDING TREATIES

UN Convention on the Law of the SeaUN Convention on the Law of the Sea

MARPOL Annex VI – Air Emissions (original 1997) – MARPOL Annex VI – Air Emissions (original 1997) – ratified October 2008ratified October 2008

MARPOL Annex VI – Air Emissions (2008 MARPOL Annex VI – Air Emissions (2008 amendments)amendments)

Ballast Water ConventionBallast Water Convention

Anti-fouling ConventionAnti-fouling Convention

Cooperative EndeavorsCooperative Endeavors

Regular industry input to decision makersRegular industry input to decision makers Formal and informal settingsFormal and informal settings Share successes and failuresShare successes and failures Federal Advisory Committees (USCG, NOAA, Federal Advisory Committees (USCG, NOAA,

EPA)EPA) National Academy of Sciences (Marine Board) and National Academy of Sciences (Marine Board) and

other independent groupsother independent groups Input to legislative and regulatory projects Input to legislative and regulatory projects

(preferably before they are initiated!)(preferably before they are initiated!) Integrity, transparency and credibility are crucialIntegrity, transparency and credibility are crucial

Substantive Operational Substantive Operational Issues (The Big Five!)Issues (The Big Five!)

Air emissionsAir emissions Ballast water management and hull Ballast water management and hull

foulingfouling Waste management (minimization)Waste management (minimization) Discharges incident to the normal Discharges incident to the normal

operation of vesselsoperation of vessels Shipping Impacts on living marine Shipping Impacts on living marine

resourcesresources Seafarer recruitment and retentionSeafarer recruitment and retention

Other IssuesOther Issues

Maintain level playing field Maintain level playing field General environmental statutes are General environmental statutes are

not a “one size fits all” especially as not a “one size fits all” especially as regards the maritime industryregards the maritime industry

Jurisdictional limits on sovereignty Jurisdictional limits on sovereignty necessitate international instruments necessitate international instruments that are legally binding and global in that are legally binding and global in scope (environmental management scope (environmental management extends to high seas)extends to high seas)

Capt. John Henry Bates

Air Emissions – The Air Emissions – The Fundamental ConflictFundamental Conflict

Shipping is international and so should be Shipping is international and so should be control of air emissions (IMO)control of air emissions (IMO)

Air emissions are local/regionalAir emissions are local/regionalAir quality is usually defined in national Air quality is usually defined in national

and sub-national terms and therefore and sub-national terms and therefore emissions control strategies are best emissions control strategies are best designed at national and regional levelsdesigned at national and regional levels

HOUSTON….WE HAVE A PROBLEMHOUSTON….WE HAVE A PROBLEM

Air Emissions Control StrategiesAir Emissions Control Strategies

MARPOL Annex VI (original)MARPOL Annex VI (original)MARPOL Annex VI (amendments)MARPOL Annex VI (amendments)EU Marine Fuel Sulfur DirectiveEU Marine Fuel Sulfur DirectiveUS Clean Air Act and implementing US Clean Air Act and implementing

regulationsregulationsSubnational – all states but especially Subnational – all states but especially

CaliforniaCaliforniaRegional – Port of LA/Long BeachRegional – Port of LA/Long Beach

Policy Considerations #1Policy Considerations #1

All entities currently regulating or trying to All entities currently regulating or trying to regulate air emissions from ships have regulate air emissions from ships have legitimate legal jurisdiction to do so to legitimate legal jurisdiction to do so to SOME degreeSOME degree

All entities have ethical responsibilities to All entities have ethical responsibilities to constituents to assure a safe and healthy constituents to assure a safe and healthy environment for their citizensenvironment for their citizens

Policy Considerations #2Policy Considerations #2

Vast percentage of international trade is Vast percentage of international trade is carried in the global (non US flag) fleetcarried in the global (non US flag) fleet

Citizens want clean air AND cheap goodsCitizens want clean air AND cheap goods ““Cookie cutter” approaches to ship Cookie cutter” approaches to ship

emission controls will not provide the best emission controls will not provide the best balance of environmental benefit and the balance of environmental benefit and the facilitation of tradefacilitation of trade

UnknownsUnknowns

Predicted growth rate of world fleetPredicted growth rate of world fleetActual emissions from shipsActual emissions from shipsCost of fuel under more stringent Cost of fuel under more stringent

emissions reductions programs (globally emissions reductions programs (globally and regionally)and regionally)

Emissions abatement technology Emissions abatement technology development (SCR, EGS, others?)development (SCR, EGS, others?)

Cost/benefit equationCost/benefit equation

Ultimate GoalUltimate Goal

Net environmental benefit at all levelsNet environmental benefit at all levels No cross media transfersNo cross media transfers Global availability of fuels meeting Global availability of fuels meeting

requirements at all jurisdictional levelsrequirements at all jurisdictional levels Continuing advances in shipboard emission Continuing advances in shipboard emission

reduction technologiesreduction technologies Adaptability and flexibility to address Adaptability and flexibility to address

regional issues without adverse impact on regional issues without adverse impact on international tradeinternational trade

Annex VI Amendments - SOxAnnex VI Amendments - SOx

GLOBALGLOBAL

4.5% cap now4.5% cap now 3.5% cap by 1/1/123.5% cap by 1/1/12 0.5% cap by 1/1/200.5% cap by 1/1/20 Subject to fuel oil Subject to fuel oil

availability reviewavailability review Max extension to Max extension to

1/1/251/1/25

ECAsECAs

1.0% by 3/1/101.0% by 3/1/10

.1% by 1/1/15.1% by 1/1/15

Annex VI Amendments - NOxAnnex VI Amendments - NOx

NEW ENGINES*NEW ENGINES*

Tier I – currentTier I – current Tier II = 20% reduction Tier II = 20% reduction

by 2012by 2012 Tier III = 80% reduction Tier III = 80% reduction

by 2016 (only in ECAs)by 2016 (only in ECAs)

* Refers to Category 3 * Refers to Category 3 engines onlyengines only

EXISTING ENGINESEXISTING ENGINES

No controls currentlyNo controls currently Tier I would apply Tier I would apply

subject to emission subject to emission upgrade system upgrade system certification by flag certification by flag statestate

US ActivitiesUS Activities

EPA Cat 2 rulemaking (final rule issued)EPA Cat 2 rulemaking (final rule issued)EPA Cat 3 rulemaking (final rule by Dec EPA Cat 3 rulemaking (final rule by Dec

2009)2009)Federal legislation – S 1499/HR 2458, Federal legislation – S 1499/HR 2458,

Marine Vessel Emissions Act of 2007 Marine Vessel Emissions Act of 2007 (pending, expect reintro next year)(pending, expect reintro next year)

State action – CARB (2State action – CARB (2ndnd iteration) iteration)

IN A NUTSHELL – US IN A NUTSHELL – US ACTIONSACTIONS

EPA using best efforts to accomplish goals EPA using best efforts to accomplish goals at IMOat IMO

If unsuccessful, implementation via federal If unsuccessful, implementation via federal legislation and rulemakinglegislation and rulemaking

Wild card – CaliforniaWild card – CaliforniaLikely legal challengesLikely legal challengesConsideration of SECA/ECA along all Consideration of SECA/ECA along all

three coaststhree coasts

Ballast Water ManagementBallast Water Management

Balance of Powers gone wrong!Balance of Powers gone wrong! Legislative, judicial and executive branchLegislative, judicial and executive branch BW Legislation – S 1578, HR 2830BW Legislation – S 1578, HR 2830 Court case – NW Environmental Court case – NW Environmental

Advocates vs. EPA (Industry intervened)Advocates vs. EPA (Industry intervened) EPA and USCG regulatory programsEPA and USCG regulatory programs

BASIC FUNDAMENTALSBASIC FUNDAMENTALS

Shipping is internationalShipping is international Regulation of shipping should be internationalRegulation of shipping should be international Predictability of requirementsPredictability of requirements Elimination of regulation induced competitive Elimination of regulation induced competitive

disadvantagesdisadvantages Potential tension among international, legislative Potential tension among international, legislative

and regulatory requirements and regulatory requirements Timing is everything!!!!Timing is everything!!!!

INDUSTRY BASED INDUSTRY BASED ASSUMPTIONSASSUMPTIONS

Need for internationally accepted mandatory BW Need for internationally accepted mandatory BW management programmanagement program

Consistency between international and domestic Consistency between international and domestic programsprograms

Solutions must provide real benefit to the Solutions must provide real benefit to the environmentenvironment

We are experts in vessel operations, not We are experts in vessel operations, not marine/invasion biologymarine/invasion biology

Be careful what questions you try and answer!Be careful what questions you try and answer!

INDUSTRY POSITIONSINDUSTRY POSITIONS

Mandatory national BW management Mandatory national BW management programprogram

Exchange as technology benchmark but no Exchange as technology benchmark but no longer appropriate focus for future control longer appropriate focus for future control strategiesstrategies

Promote ID and testing of new technologiesPromote ID and testing of new technologies Oppose dual regulatory structures e.g. CWA Oppose dual regulatory structures e.g. CWA

NPDES NPDES and and ballast water statuteballast water statute

LAY OF THE LEGAL LAY OF THE LEGAL LANDSCAPELANDSCAPE

Finalized IMO ConventionFinalized IMO Convention Development of IMO GuidelinesDevelopment of IMO Guidelines US Legislative Initiatives (Fed/State)US Legislative Initiatives (Fed/State) Regulatory Initiatives (Fed/State/Local)Regulatory Initiatives (Fed/State/Local) Multitude of technology developers all Multitude of technology developers all

assuring their “silver bullet”assuring their “silver bullet”

IMO CONVENTION VS. US IMO CONVENTION VS. US LEGISLATIONLEGISLATION

IMO entry into force????IMO entry into force???? Multiple US legislative efforts Multiple US legislative efforts US legislation enactment expected ???US legislation enactment expected ??? Industry position to maximize alignment of Industry position to maximize alignment of

national and IMO requirementsnational and IMO requirements 100% alignment unlikely (performance std.)100% alignment unlikely (performance std.)

DEVIL IS IN THE DETAILS (IMO DEVIL IS IN THE DETAILS (IMO Guidelines)Guidelines)

Sediment and BW Reception FacilitiesSediment and BW Reception Facilities SamplingSampling Equivalent Compliance for pleasure/SAR vesselsEquivalent Compliance for pleasure/SAR vessels BW Management PlansBW Management Plans BW ExchangeBW Exchange Additional measures and risk assessment protocolsAdditional measures and risk assessment protocols Approval of ballast water management systemsApproval of ballast water management systems Procedures for approval of “active” substancesProcedures for approval of “active” substances Prototype BW treatment technologiesPrototype BW treatment technologies

DEVIL IS IN THE DETAILS (US DEVIL IS IN THE DETAILS (US Legislative and Regulatory)Legislative and Regulatory)

General legislation with details left to General legislation with details left to regulatory programs or…regulatory programs or…

Specific legislation with less detail left to Specific legislation with less detail left to regulatory programs?regulatory programs?

IMO requirements reflected in total…in IMO requirements reflected in total…in part…or not at all?part…or not at all?

Intentional or inadvertent loopholes with Intentional or inadvertent loopholes with partial adoption of IMO requirementspartial adoption of IMO requirements

PERFORMANCE BASED PERFORMANCE BASED STANDARDSTANDARD

Mandatory requirements “do able” by all Mandatory requirements “do able” by all vessels regardless of location, vessel type vessels regardless of location, vessel type or weather/sea conditionsor weather/sea conditions

New technology verified by standardized New technology verified by standardized test protocolstest protocols

Timed phase-in differentiating between new Timed phase-in differentiating between new and existing shipsand existing ships

ALTERNATIVE BW ALTERNATIVE BW MANAGEMENT TECHNOLOGY MANAGEMENT TECHNOLOGY

PROGRAMPROGRAM

Must be transparent processMust be transparent process Specified process for proposal Specified process for proposal

submittal, evaluation and approvalsubmittal, evaluation and approval Specified format and contentSpecified format and content Use of technology verification protocolsUse of technology verification protocols ““Temporary” approval for testing Temporary” approval for testing

program with final review and approval program with final review and approval for successful test programsfor successful test programs

FEDERAL PREEMPTION OF FEDERAL PREEMPTION OF STATE REQUIREMENTSSTATE REQUIREMENTS

NISA 96 recognizes need for national and NISA 96 recognizes need for national and international consistencyinternational consistency

Equally applicable to federal and state Equally applicable to federal and state programsprograms

Must have strong legal and policy Must have strong legal and policy justification to gain Congressional supportjustification to gain Congressional support

Current evidence of “patchwork quilt” in Current evidence of “patchwork quilt” in varying state and national requirementsvarying state and national requirements

NEED FOR EXCLUSION FROM NEED FOR EXCLUSION FROM CLEAN WATER ACT PROVISIONSCLEAN WATER ACT PROVISIONS

Text to make national legislation the Text to make national legislation the EXCLUSIVE statute for managing ballast EXCLUSIVE statute for managing ballast waterwater

Otherwise, provisions of CWA permitting Otherwise, provisions of CWA permitting program (NPDES) would apply as wellprogram (NPDES) would apply as well

DEVELOPING TECHNOLOGIESDEVELOPING TECHNOLOGIES

FiltrationFiltration Other physical separationOther physical separation UV/IR or other electromagnetic spectra applicationUV/IR or other electromagnetic spectra application ThermalThermal Chemical biocidesChemical biocides OzoneOzone But…..need performance standard to assessBut…..need performance standard to assess

TECHNOLOGY DEVELOPMENT TECHNOLOGY DEVELOPMENT CONSIDERATIONSCONSIDERATIONS

Maximum operational flow rate (vessel)Maximum operational flow rate (vessel) Maximum operational flow rate Maximum operational flow rate

(application and/or residence time)(application and/or residence time) Adaptability to shipboard environmentAdaptability to shipboard environment FootprintFootprint Installation and maintenance feasibilityInstallation and maintenance feasibility Back-up capability and redundancyBack-up capability and redundancy Sampling and monitoring needsSampling and monitoring needs

CHALLENGESCHALLENGES

Standardized test protocolsStandardized test protocols Finalized IMO guidelines and domestic Finalized IMO guidelines and domestic

requirementsrequirements Ramp-up from lab to pilot to shipboardRamp-up from lab to pilot to shipboard Conversion of existing performance data (% Conversion of existing performance data (%

removal to concentration based format)removal to concentration based format) Sufficient funding (public and private)Sufficient funding (public and private) ACKNOWLEDGEMENT THAT THERE IS NO ACKNOWLEDGEMENT THAT THERE IS NO

SILVER BULLET!SILVER BULLET!

PENDING LEGISLATION PENDING LEGISLATION (FEDERAL)(FEDERAL)

None as yet in new CongressNone as yet in new Congress Expect re-introductions of ballast water Expect re-introductions of ballast water

legislation in House and Senate?legislation in House and Senate? Senate players – Levin, Inouye, BoxerSenate players – Levin, Inouye, Boxer House players - OberstarHouse players - Oberstar

STATE ACTIONSSTATE ACTIONS

California (zero discharge by 2020)California (zero discharge by 2020) Washington, Oregon, MichiganWashington, Oregon, Michigan Other Great Lakes states in processOther Great Lakes states in process Expect others……..Expect others…….. Provides perfect example of why a national Provides perfect example of why a national

program is necessary e.g. varied requirementsprogram is necessary e.g. varied requirements Wide variety of state requirements in NPDES Wide variety of state requirements in NPDES

Vessel General PermitVessel General Permit

Clean Water Act (CWA) Permit Basics

Vessel General Permit and Exclusions

Court Decision(s)

Implications

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

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 Processing (General Permits)

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

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 46

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◦ Proposed VGP issued June 17, 2008 (comment period

ended August 1, 2008) EPA Request for Comments

◦ 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. 49

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

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

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)

Lack of temporal and spatial distribution data

State 401 certification process and varying state requirements

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Kathy MetcalfDirector, Maritime AffairsChamber of Shipping of America1730 M Street, NWSuite 407Washington, DC 20036Kmetcalf@knowships.org

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