BALLAST WATER MANAGEMENT

Published: 13 April 2017

The introduction of invasive species into a new eco-system can have serious consequences and it is well documented that invasive species can flourish in a new environment. The invasive species often competes with local organisms and can cause serious damage to commercial structures. In some cases, the arrival of an invasive species can be harmful to human health. This is not a new issue for the maritime industry, although the growth in the world fleet over recent years has made the problem worse. The global community’s response is the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (BWM Convention). The United States has produced its own legal regime. An overview of the main points of both the BWM Convention and the US regime is set out below.

OVERVIEW OF THE BWM CONVENTION’S REQUIREMENTS

The BWM Convention was adopted at the IMO in February 2004. It seeks to establish an international consensus on ballast water management standards by bringing into force international regulations to reduce the risks posed by the transfer of organisms in ballast water and sediments.

The IMO website has a useful summary of the requirements of the BWM Convention and pursuant to the BWM Convention, the IMO published numerous guidelines which provide detailed requirements for implementation.

Some of the main points to consider are as follows:

(a) Entry into force of the BWM Convention:

The BWM Convention will enter into force on 8 September 2017. It will apply to all ships in international traffic.

(b) Ballast Water Management Plan:

Ships are required to manage their ballast water and sediments to certain standards, according to a ship-specific ballast water management plan approved by the flag state.

In addition, ships must have a ballast water record book to record when ballast water is taken on board, circulated or treated for ballast water management purposes, or discharged into the sea. It should also record when ballast water is discharged to a reception facility and any accidental or other exceptional discharges of ballast water.

(c) Standards of Ballast Water Management:

The BWM Convention provides for two different standards in relation to ballast water management, which are phased in over time. As an interim solution, ships have been able to exchange ballast water mid-ocean. However, eventually most ships will need to install an on-board ballast water treatment system.

Regulation D-1 Ballast Water Exchange Standard:

This applies to ballast water exchange in deep water, normally more than 200 nautical miles from the nearest land in water at least 200 metres in depth, which should be carried out taking into account the detail contained in the relevant IMO Guidelines (see above link for further details). Compliance with this standard will be acceptable prior to the date by which a ship must comply with the Ballast Water Performance Standard, as set out below.

Regulation D-2 Ballast Water Performance Standard:

This applies to discharge of ballast water using a type-approved ballast water management system on board the ship, which should ensure that any ballast water discharged must meet strict technical standards. The implementation schedule for compliance with the D-2 standard is discussed in more detail in Britannia’s circular dated 19 July 2017. The table below shows the relevant deadlines, in relation to either the date a ship’s keel is laid or the date of the relevant IOPP renewal. (Shipowners will be familiar with the IOPP renewal process, which is conducted at least once every five years for each ship pursuant to MARPOL Annex 1.)

Type of Ship

Keel laid/IOPP renewal date

Deadline for fitting BWM system

New Ships

Keel laid on or after 8 September 2017

On delivery

Existing Ships

IOPP certificate renewed between 8 September 2014 and 7 September 2017

IOPP certificate renewed between 8 September 2017 and 7 September 2019

OPP renewed on or after 8 September 2019

By next IOPP renewal after 8 September 2017

By subsequent IOPP renewal survey

By next IOPP renewal survey on or after 8 September 2019

(d) Fitting a Ballast Water Management System:

The specific ballast water management requirements for individual ships are contained in Regulation B-3 of the BWM Convention and will depend on the size of the ship, the date of her construction and her ballast water capacity.
When fitting a ballast water management system, the BWM Convention requires that it must be approved by the ship’s flag state administration, taking into account the relevant version of the IMO’s Guidelines for approval of ballast water management systems (the “G-8 Guidelines” – see above link for further details).

There have been several versions of the G-8 Guidelines issued in 2005, 2008 and most recently in October 2016. The 2016 G-8 Guidelines set out which of the previous G-8 Guidelines may apply when considering whether a BWM system has type approval. This will depend on the date on which the BWM system is to be fitted.

(e) Surveys and Certification

All ships over 400 gt are subject to surveys and certification under the BWM Convention. Ships below 400 gt will be subject to national survey and certification regimes.

The survey and certification scheme under the BWM Convention is similar to those of other IMO conventions. On completion of an initial survey, an international ballast water management certificate will be issued for a ship whose flag state has ratified the BWM Convention.

For ships whose flag administration has not ratified the BWM Convention, a certificate or statement of compliance can be issued. Once a certificate or statement is issued, compliance will be subject to the flag state’s survey programme and inspection by port state control.

OVERVIEW OF THE LEGAL REGIMES IN THE UNITED STATES

(a) United States Coast Guard Regulations

The US is not a party to the BWM Convention and the United States Coast Guard (USCG) has issued its own regulations with regard to treatment of ballast water. Those regulations require that all ships planning to discharge ballast water in US waters must carry out adequate ballast water exchange or ballast water treatment as well as control of sediments.

The USCG regulations also contain their own timeline for USCG acceptance of type approved ballast water treatment systems in the future. That timeline is more onerous than the BWM Convention and requires all new ships to be fitted with the equipment on delivery if they were constructed after December 2013. Existing ships with ballast water capacity greater than 5000m3 are required to be compliant after the first scheduled dry docking after 1 January 2016.

Members are advised that as of the start of 2017 there are several USCG type approved ballast systems available on the market. It is envisaged that more type approved systems will become available in the near future.

The USCG regulations impose strict criteria in relation to system capabilities which will require shipowners to work closely together with manufacturers of approved ballast water treatment equipment to ensure the equipment is properly rated for each ship’s size and operational conditions.

Prior to the type approval of the first ballast water management systems, the USCG had been issuing time extensions for compliance to shipowners in respect of their entire fleets. However, the USCG has indicated that future extensions will only be offered on a ship-by-ship basis. It is understood that in order to gain further extensions for compliance dates, applicants must demonstrate that they have fully investigated the feasibility of all type approved systems and that those systems were not available or reasonably compatible with the ship in question.

The USCG also previously accepted a number of IMO approved ballast water treatment systems as “Alternate Management Systems” for five years from the ship’s compliance date. It is expected that any previous approval for an Alternate Management System will remain valid.

On 6 March 2017, the USCG issued a detailed update on the subject of compliance dates and its extension program, including detail regarding Alternate Management Systems.

(b) The Environmental Protection Agency and the Clean Water Act:

In addition to the USCG regulations, the Clean Water Act (CWA) authorises the United States Environmental Protection Agency (EPA) to regulate discharges incidental to the normal operation of commercial ships via the National Pollutant Discharge Elimination System (NPDES). This includes a broad range of discharges including ballast water, bilge water, grey water, deck wash down and run off. This section deals with the ballast water requirements and the introduction of invasive organisms.

Under the CWA, discharges are strictly limited. Any discharge must be in accordance with the terms of the most recent Vessel General Permit (VGP), the current version of which was issued in 2013. There are separate requirements for small ships under the Small Vessel General Permit (sVGP) 2014. The sVGP applies to ships under 79 feet in length and to commercial fishing vessels.

The CWA requires that “best available technology” is used to avoid the introduction of invasive species. In practice, this means the shipowner must submit an application for a Notice of Intent (NOI) before commencing any discharge. The NOI provides that the operator will have a system fitted that will meet the numerical discharge standard after the compliance date. This discharge standard at present is similar to the D-2 standard stipulated in the BWM Convention, although the VGP standard provides for a limit on “living” organisms as opposed to “viable” organisms under BWM.

The CWA provides for strict liability, so if the standard has not been met, there is a risk of enforcement action being taken for the breach. The EPA have recognised that they should co-ordinate their approach with the USCG. On 27 December 2013, the EPA issued a policy memorandum which, in summary, states that, provided all other compliance requirements for VGP and USCG regulations are met, the EPA: “will consider such violations of the 2013 VGP ballast water numeric discharge limit to be low enforcement priority.”

This suggests that there may be no enforcement by the EPA for non-compliance with numeric discharge standards until the ship is required to fit a USCG type approved ballast water management system, provided the ship is otherwise fully compliant with USCG regulations and VGP requirements.

OTHER NATIONAL BALLAST WATER MANAGEMENT REQUIREMENTS:

In addition to the two main regimes discussed above, it is important to consider national requirements, which may apply prior to entry into force of the main regimes or where a flag or port state is not party to the BWM Convention.

Prior to entry into force of the BWM Convention, many states implemented their own regulations for the control and management of ballast water, with each state applying differing criteria on standards. The most popular method of dealing with compliance has been to conduct deep water ballast water transfer in accordance with an approved ballast water management plan.

A document produced by Lloyd’s Register (attached), contains a number of known national, regional and local ballast water management regulations. This illustrates how different states have interpreted compliance requirements for ballast water management.

It is recommended that port state authorities should be consulted before entering their jurisdiction, to ensure compliance with any relevant ballast water management regulations