Land, Sea, and Air:Major Environmental Changes Underwayfor the Maritime Industry and the Nation’s Waterways
Susan Geiger, Partner
K&L Gates Maritime Group
September 24, 2009
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Land
New Regulatory and Enforcement World
EPA Vessel General Permits
Air emission regulations
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Sea
Major new restrictions on vessel discharges
And more to come
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Air
Air emission restrictions are just beginning
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Land, Sea, and Air
Why Now?
What Now?
What Next?
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Why Now?
Laws to protect our waterways are more than 100 years old
Refuse Act of 1899
Increased global awareness
Climate change Clean and green
Reductions in other sources leaves vessel emissions as a large and growing percentage
Improvements in technologies
Not the best record
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What Now?
Vessel General Permit
Just the skeleton of what is to come
Ballast water
Others
Incorporates “best management practices” as an interim measure
Further EPA “guidance” expected
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What Now?
VGP
Why is this a major change?
Report and make public Inspection and entry Sample and monitor Sign and certify
New enforcement tools
New enforcement personnel
New types of enforcement
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What Now?
VGP Enforcement
Corrective action reporting Treasure trove for citizen suits?
24,000 vessels subject to the permit
If only 1% have a violative condition each year, that equals 240 enforcement actions
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Judicial Appeals Relating to the VGP in Federal and State CourtsForum Summary of Argument Status
D.C. Circuit: Lake Carriers, et al. v. EPA, No. 09-1010
VGP is arbitrary and capricious Stayed by order of court until 10/15/09; parties are discussing potential settlement
Minnesota Court of Appeals: Nat. Wildlife Fed. V. Minn. Pollution Control Agency, No. A08-2196
Minnesota had insufficient time to properly certify the VGP
Fully briefed, awaiting court decision
Michigan Circuit Ct. Ingham Cty.: Nat. Wildlife Fed. v. Chester, No. 08-1652
Decision to exempt Lakers from ballast water condition was not arbitrary or capricious
Industry brief filed June 29, 2009
New York Supreme Court/App. Div.: Port of Oswego Authority v. Grannis, No. 10296-08
Did not submit our own briefs; petitioners arguments were based on federal 401 requirements and state law
NY Supreme Court (trial court) upheld 401 certification 5/21/2009. Appeal pending.
Illinois Circ. Ct. Sangamon County: Lake Carriers Assoc. v. Scott, No. 09-MR-140
Two conditions in Illinois certification did not comply with federal regulations because they did not cite state law basis for condition
Amended complaint pending
Pennsylvania Environmental Hearing Bd: Lake Carriers Assoc. v. Pennsylvania DEP, No. 2009-003-L
Ballast water provisions of certification violate federal and state law
Stayed by order of court until October 15, 2009.
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What Now?
Ballast water regulations
Proposed by Coast Guard, not EPA
EPA can add its own requirements
Moving from best management practices to numerical standards
Applied to domestic as well as international trading
$1 billion cost
Small companies bear the most significant cost
Comments due November 27, 2009
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What Now?
Air emission restrictions for Category 3 engines
Adoption of Annex VI
Submission of US/Canada ECA proposal to IMO
Draft regulations would apply ECA limits to internal as well as coastal areas
Unintended consequences?
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2011-2016 Many Environmental Changes for the Maritime Industry2011 NOx IMO Tier III for new engines
2012 SOx
Ballast Water
10,000 ppm sulfur fuel standard
Phase I for new engines and technology review for Phase II
2014 Ballast Water Phase I for fist drydocking after January 1st for existing vessel with 1,500-5,000 M3 ballast water tanks
2015 SOx 1,000 ppm sulfur fuel standard
2016 NOx
Ballast Water
Ballast Water
IMO Tier III for new engines
Phase I for first drydocking after January 1st for existing vessel with 1,500-5,000 M3 ballast water tanks
Phase II for new vessels and first drydocking after January 1st for existing unless Phase I technology is less than 5 years old
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What’s Next?
Climate Change
Possible new CO2 air emission restrictions
Bunker tax to provide funding used as an incentive to less developed countries?
Maritime spatial planning
Zoning for the oceans?
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What’s Next?
Marine debris
Upcoming focus
Sewage discharges
Petition filed for EPA to develop stricter regulation of Type II MSD
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What’s Next?
New environmental claims?
Propeller wash disturbing PCB-contaminated sediments by an engine testing facility can support operator liability under Superfund
Criminal violations of Non-Indigenous Aquatic uses and Prevention Control Act brought against the captain and chief officer of a vessel for ballast tank violations
Consolidations and modal shifting?
Many more changes to come
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Any Questions?
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