Ostensibly, the ballast water management issue has not moved on. The convention still has not been ratified, and there are no United States Coast Guard (USCG)-approved systems.
But a closer inspection of the issues at this year’s Intertanko Tanker Summit, led by the organisation’s senior environmental manager, Tim Wilkins (who focused on IMO), and director of regulatory affairs, Joe Angelo (who focused on developments in the United States), revealed there has in fact been considerable movement. As Mr Wilkins put it: “You could go on holiday in August and find the convention has been fully ratified when you return in September!”
With St Lucia ratifying the convention at the end of May, and Peru ratifying at the time of writing, 51 countries, representing 34.85 per cent of global tonnage, have now signed up. When that figure hits 35 per cent, the convention will enter into force. “There is a list of countries that have indicated that they are in the process of ratifying, with Finland, representing 0.14 per cent of global tonnage, understood to be getting pretty close,” said Mr Wilkins. Should Finland sign up, 34.99 per cent of the world’s fleet would fall under the ambit of the convention.
Normally, when an IMO convention is in the ratification process, the percentage of the global fleet signed up to it is calculated annually. “In ballast water’s case, they are doing it monthly,” added Mr Wilkins. Given two of the convention’s signatories are Liberia and the Marshall Islands, a surge of new tonnage into one or both of these administrations would bring the convention into force overnight.
Mr Wilkins highlighted progress Intertanko has made in getting the convention’s type-approval guidelines “reviewed, changed and made more robust” and more closely aligned with the US type-approval process. He detailed the protection in place for early adopters of ballast water management systems. The implementation schedule has been standardised and is no longer linked to size or ballast water capacity.
Significant challenges remain, especially around the type-approval process. “Based on a gap analysis with the US type-approval process, we went in with a submission to the IMO identifying six areas where we thought that the IMO type-approval process should be tightened up. Following feedback from IMO member states, we emerged with 36 points!”
Another abiding concern relates to the technology. Members with systems installed were reporting that they did not work in practice. “We are carrying out a through engineering review of ballast water management systems, component-by-component, and will detail both the problems and potential solutions. The findings will be incorporated in an updated version of Intertanko’s Guidance on the Selection and Installation of Ballast Water Management Systems for Tankers.
Rounding out with a review of the MEPC 69, Mr Wilkins said that Intertanko and ICS came together and submitted a paper based on a Liberian Registry submission that made the case for a delay in the implementation schedule. Liberia raised concerns around the yard capacity likely to be available in 2018/2019 to install between 4,000 and 7,000 ships should the convention enter into force this year. Liberia said it had research that showed that if a vessel did two sequential ballast water exchanges, its ballast would meet the D2 discharge standard. Intertanko’s technical and environmental committees saw value in the proposal, but IMO did not take the same view. Liberia could choose to resubmit or amend its proposal in time for the next MEPC meeting in October.
Joe Angelo updated the gathering on developments in the United States under three categories: the United States Coast Guard (USCG), the EPA and VGP, and California.
He identified the two biggest USCG issues for members as “getting an extension on implementation and waiting for the Coast Guard to approve ballast water systems.” Here Intertanko and the environmental committee have done two major things to help members. They have developed a decision tree (available on the Intertanko website) that clarifies what an owner must do (according to when the vessel was built) when going to the United States. “The USCG was invited to review the tree. They did not comment, which is their way of saying it’s OK,” Mr Angelo said. Secondly, a model extension request letter has been devised. “To my knowledge every request that has been submitted using this method has been accepted,” he added.
To bring clarity to deadline extensions, Intertanko made three requests of the USCG. First, Intertanko asked for a blanket extension from the USCG until it approved systems. Second, Intertanko requested that instead of rolling the extension over to 1 January of the following year, the date would be made that of the vessel’s next scheduled drydocking. Third, once a system has been approved anti-trust, consumer protection and monopoly issues could arise. Supply and demand would also be a concern for the market.
The USCG agreed that once it had approved a system or systems, it would grant all vessels an extension up to their first scheduled drydocking to have a compliant ballast water management system installed. Existing extension letters will not be re-issued. Rather the person or shipowner that has that extension letter will have to re-submit an application and then receive a supplemental extension. The USCG was clear that the supplemental extension would not be granted automatically, as prevailing regulations require that extensions are granted based on the information available at the time of the application.
In contrast, the anti-trust /monopoly issues were not seen as a USCG matter. Intertanko took the matter to the consumer protection desk at the US Naval Trade Commission, but it did not progress as the issues raised were seen as ‘hypothetical.’
In the absence of any USCG-approved systems, the industry at large is left trying to second-guess which system to install. Presently, 34 manufacturers have gone to the Coast Guard with a letter of intent saying they intend to get Coast Guard approval. There are 58 Alternative Management Systems (AMS) that the USCG will accept as interim solutions until they approve a system. This means that there are 24 AMS systems that are not currently in the running for USCG approval. “I strongly recommend that you go to the USCG website and familiarise yourself with the 34 systems that are applying for USCG approval,” said Mr Angelo. “If you have invested in a system outside this list – and intend to ballast water exchange in US waters – you may have a problem,” he said.
Five independent laboratories around the world are capable of testing systems and 20 are understood to be going through this process at this time. Once a laboratory has completed its tests, a manufacturer will assess the results and determine whether it is ready to submit a formal request to USCG to approve its system. So far two manufacturers have completed testing and are poised to apply to the USCG for type approval. Mr Angelo said that the USCG would not commit to a timeframe for approving a system once it received an actual request, but expected that there would be approved systems by the end of this year.
Almost half of the systems approved under IMO use ultra-violet technology. Four of these manufactures have submitted their test results to the USCG, but did not gain approval. The manufacturers requested that the USCG apply an equivalency standard that would allow their systems to be recognised as AMS. This was denied. The manufacturers have appealed this decision. Back in March the expectation was that a decision would be reached around May or June. In the interim, the manufacturers submitted a further 1,000 pages of data for USCG review. A final decision on the appeal will now follow “as soon practicably possible,” Mr Angelo said. He scotched rumours circulating at the end of May that the USCG had already decided to grant the appeal.
Somewhat clearer are the outcomes of a USCG practicality review into the IMO discharge standards. The USCG could not identify any systems that meet more stringent standards than what it currently has in its regulations, which are also in the IMO standard. This means ballast water manufacturers are not going to have to change their systems to meet a new standard.
Mr Angelo shed light on an October 2015 Federal Appeals Court decision in New York that ordered the US government “to rewrite its rules regulating the discharge of ballast water by ships.”
A Reuters report at the time said the Court heard arguments from four environmental groups and said the US Environmental Protection Agency (EPA) acted “arbitrarily and capriciously” when it decided in 2013 to follow an international standard governing the discharge of harmful organisms, though technology was available to adopt a higher standard. Circuit Judge Denny Chin said the EPA, using its authority under the Clean Water Act, should have considered onshore facilities to treat ballast water rather than focus on pollution controls aboard ships, where a lack of space might limit their effectiveness.
The EPA said in its submission that it “proceeded methodically and reasonably” toward its conclusions, rather than focus on methods “destined not to play a role at the present time in redressing aquatic nuisance species in ballast water.” The US Department of Justice, which argued the EPA’s case, is reviewing the decision, its spokesman told Reuters.
Mr Angelo said that a leading view in Washington was that while the environmental groups had produced science showing isolated cases where a ballast water system, in one facet of its operation, could have met a higher standard, they had not demonstrated that a ballast water system – in all its facets of operation – was not meeting the highest possible standards. The expectation is that the EPA will now wait until the Vessel General Permit scheme is renewed in 2018 before making its next move.
Concluding, Mr Angelo urged the industry to try and see the present regulatory position in a positive light. “Every day that goes by without the ballast water treaty being ratified is another day that the USCG gets to approve another system, which brings us closer to minimising this dilemma!”
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