Assessing court's ruling on VGP ballast water requirements

OCTOBER 20, 2015 — Shipowners, and ballast water management system manufacturers, have been thrown into confusion by an October 5, 2015, unanimous ruling by the U.S. Court of Appeals for the Second Circuit that the EPA acted arbitrarily and capriciously in drafting the ballast water discharge provisions of its 2013 Vessel General Permit (VGP).

An "action item" alert from law firm Blank Rome sheds some light onto the significance of this decision.

Blank Rome notes that the Second Circuit Court of Appeals remanded the issue to the EPA to redraft the ballast water sections of the VGP.

The firm says that "the differences between the VGP ballast water provisions, International Maritime Organization ("IMO") Ballast Water Management Convention, and U.S. Coast Guard's ballast water regulations have posed a number of compliance challenges thus far, which may be further exacerbated by possible new VGP requirements. While substantive changes to the VGP ballast provisions, if any, are likely years away, shipowners and operators should be aware, closely monitor, and be prepared to comment on a new draft VGP in the future."

"Most notably," says Blank Rome, "the court stated that the EPA failed to adequately explain why stricter technology-based effluent standards should not be applied, failed to give fair and thorough consideration to onshore treatment options, and failed to adequately explain why pre-2009 Lakers were exempted. The court instructed the EPA to reconsider the VGP ballast water provisions in accordance with its ruling. In the meantime, the 2013 VGP will remain in effect."

"The possibility that the EPA may alter its VGP ballast water provisions does, however, create uncertainty for those striving to comply with both the VGP and U.S. Coast Guard ballast water requirements," notes Blank Rome. "The U.S. Coast Guard's ballast water regulations, like the current VGP ballast water requirements, for the most part mirror the IMO Ballast Water Management Convention, though there are some differences. Ship owners and operators have struggled to understand and comply with these overlapping requirements. Any changes to the EPA's ballast water requirements will require extensive discussion with the U.S. Coast Guard to ensure any new VGP ballast water requirements can co-exist with the U.S. Coast Guard and IMO regimes.

"The ruling does not impact the U.S. Coast Guard's ballast water management system type approval process. That said, should the EPA create stricter technology-based effluent limitations (TBELs) than the U.S. Coast Guard and IMO standards, it will be even more challenging for vessels to comply with both the U.S. Coast Guard and EPA standards because the systems approved by the U.S. Coast Guard and required to be installed may or may not meet the stricter VGP TBELs. It is also unclear how the EPA would enforce stricter TBELs as the Coast Guard generally conducts the vessel inspections and passes information on possible violations to the EPA."

Read the full text of the Blank Rome action item HERE

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