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US proposes new ballast water laws

Rajesh Joshi, New York - Wednesday 30 April 2008

BALLAST water thresholds allowed under US law could be ratcheted up to a level 100 times more stringent than International Maritime Organization standards after 2011, under a new US initiative currently taking shape. 

Some experts speculate that the US law, if passed, might result in the IMO convention itself becoming irrelevant, as it is yet to be ratified by the US and has not secured the required support among other nations to enforce it internationally. 

The fact that new technology might make it possible to achieve US-mandated stricter organism levels at an identical cost makes this scenario likelier, experts said. 

Nevertheless, the US developments are being welcomed as they would bring the US in line with current IMO standards, as well as pre-empt and override state-level regulations. California and Michigan are among jurisdictions that have introduced regional regulations. 

The Coast Guard Authorisation Act, adopted by the US House of Representatives last week, contains a section on ballast water. In a separate twist, the US Environmental Protection Agency has announced an alternative ballast water management initiative, which has the support of the Bush administration. 

The House Bill mandates the installation of water treatment equipment consistent with the IMO standard during a ship’s first dry-docking after December 31, 2008. Equipment that meets the stricter US standard, understood to be 100 times stricter, would have to be installed during the first drydocking after December 31, 2011 but no later than December 31, 2013. 

The EPA announcement stems from a 2006 decision by a California federal court which mandated an EPA-administered permit regime that would govern all discharges from ships, including ballast water, effective September 30 this year. Shipping industry advocates have criticised this requirement as cumbersome and unproductive. An EPA appeal is pending. 

The alternative administration proposal being pushed by the EPA would legislatively overrule the 2006 federal court decision concerning permits and be as consistent as possible with the IMO convention, Holland & Knight senior counsel Dennis Bryant said in his daily newsletter. 

The Bush administration is understood to have issued a veto threat directed at security-related provisions in the House Bill, and urged lawmakers to substitute the ballast water section with its own alternate version. 

The alternative proposal visualises IMO standards on ballast water being phased in four years after enactment, and the 100 times stricter threshold becoming mandatory four years later. The language provides room for postponement of the implementation dates if appropriate technology is not deemed to be available. 

However, several manufacturers of treatment equipment say the technology is already available. Joel Mandelman, general counsel of Nutech O3, which manufactures treatment equipment, told Lloyd’s List that his firm hopes to secure IMO approval for its product at the MEPC meeting in October. 

Mr Mandelman said it would be possible to achieve the 100-times-cleaner threshold at no additional cost to equipment that meets the lower IMO standard. 

“On this backdrop, if the US law were to pass, other nations might have second thoughts about even signing the IMO convention,” he said. 

Other experts caution against assuming too much about new technology until it is proven. 

Jonathan Benner, of law firm Troutman Sanders, said: “One has to hope that claims of widely available and affordable on-board technologies prove accurate. The worst thing Congress can do is mandate that an industry be tied to specific future performance standards without absolute certainty that competitive options are available to meet those standards.” 

Passage of the US ballast water law now remains at the mercy of Congress in an election year. Mr Mandelman rates the chances of this law’s passage this year as brighter than at any time during the last decade, because the House version had not even been passed before this year, despite repeated drafts and attempts to do so. 

However, another source said a final ballast water statute “has a long way to go” given the skirmishing over the threatened veto as well as the fact that the House Coast Guard Bill might run into a sticky “conference” process when it is reconciled with the Senate version.