EPA Ordered to Review Ballast Water Rules | Courthouse News Service
Thursday, November 30, 2023
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EPA Ordered to Review Ballast Water Rules

MANHATTAN (CN) - The Environmental Protection Agency failed to properly regulate how ships that sail the Great Lakes discharge ballast water, a practice that is the principal cause of spreading invasive species.

To regulate their weight during shipping, a characteristic that changes with the loading or unloading of cargo, vessels take on or discharge up millions of gallons of ballast water in their journey.

During the process, however, ships sometimes pick up sea life and then deposit those organisms in different locations. Some estimates suggest that more than 10,000 marine species are transplanted every day during loading and discharge of ballast water, and that the practice causes more than $130 billion a year in economic damage.

Pointing to the destruction wreaked by transplanted invasive species, like zebra mussels brought to the Great Lakes region in the early 1980s, environmental groups have long pushed for tighter regulation.

They balked when the Environmental Protection Agency issued a general permit in 2013 regulating the loading an ddischarge ballast water.

Though the rules limit the discharge of organisms by their size and requires shippers to sample test ballast water for pathogens like E. coli and enterococci, the Natural Resources Defense Council and three other environmental groups complained about the agency's failure to institute limits for viruses or algae and other single-celled organisms known as protists.

There is also no requirement for ships built before 2009 to adhere to the new regulations.

U.S. and Canadian shipping associations intervened on behalf of the EPA as the environmentalists pushed the Second Circuit for review.

A three-judge panel found Monday that the EPA wrote its 2013 ballast-water rule arbitrarily, shooting down arguments by the agency and shipping associations about the cost of more regulation.

While treating the water onshore may indeed be too costly, the court said cost should not have been the only factor that the EPA considered.

"Onshore treatment has many costs, including the cost of retrofitting vessels for onshore facilities ... and the cost of shipping delays created by the time it takes to discharge ballast onshore," Judge Denny Chin wrote for the court. "Costs, alone, however, cannot determine [the best technology available.]"

In shooting down cost concerns regarding the 2009 cut-off for regulation, Chin said ships built prior to that date were "similarly situated" to those built after and should have been regulated the same.

The Second Circuit remanded the rule back to the EPA for a rewrite. The 2013 rule remains in place until a new one is written.

"Invasive species have imposed huge economic costs on this country," Rebecca Riley, senior attorney with the NRDC said in an interview. "In the Great Lakes region we are really well aware of how devastating [invasive species] can be ... to the ecosystem."

The Lake Carriers' Association, which had joined with the EPA in opposing the environmentalists' petition, has stated that cargo ships are a net environmental benefit because they reduce fuel emissions compared with trucking. The association has also suggested that state law may preempt EPA regulation regarding ballast discharge.

LCA President James Weakley did not immediately respond to requests for comment.

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