described in VIII.B.1.xiii. Additional Considerations in Federally-
Protected Waters.
    Further, consistent with a USCG Marine Safety Information Bulletin
(Ballast Water Best Management Practices to Reduce the Likelihood of
Transporting Pathogens That May Spread Stony Coral Tissue Loss Disease;
Marine Safety Information Bulletin, OES-MSIB Number: 07-19, September
6, 2019), ballast water discharges should be conducted as far from
coral reefs as possible, regardless of whether the reef is inside or
outside of 12 NM from shore (USCG, 2019a).
    EPA is seeking input for the development of the final rule
regarding: (1) How best to define areas with coral reefs, and (2)
public availability of navigational charts that can be used for
identifying areas with coral reefs.
G. Develop a Ballast Water Management Plan
    Like the previous requirements of the VGP and the USCG regulations,
the proposed rule would require that any vessel with one or more
ballast tanks develop and follow a vessel-specific ballast water
management plan (BWMP) to minimize the potential for the introduction
and spread of ANS. Such a BWMP should employ a holistic strategy that
considers the operational profile of the vessel and the appropriate
ballast water management practices and systems. Details of such a plan
will be detailed in the corresponding implementation regulation to be
promulgated by the Secretary as specified in section 139.1(e) of the
proposed rule.
H. Best Management Practices Not Continued From Existing Requirements
    The proposed rule would not include one BMP that is currently
included as a measure in both the VGP and USCG regulations at 33 CFR
part 151 subparts C and D. These practices were adopted from the
voluntary ``Code of Best Practices for Ballast Water Management'' of
the Shipping Federation of Canada dated September 28, 2000, for vessels
operating in the Great Lakes and St. Lawrence Seaway and codified in
the VGP and USCG regulations (Shipping Federal of Canada, 2000).
    EPA proposes not to continue the requirement that vessel operators
must minimize or avoid uptake of ballast water in the following areas
and situations:
     Areas known to have infestations or populations of harmful
organisms and pathogens (e.g., toxic algal blooms);
     Areas near sewage outfalls;
     Areas near dredging operations;
     Areas where tidal flushing is known to be poor or times
when a tidal stream is known to be turbid;
     In darkness, when bottom-dwelling organisms may rise in
the water column
     Where propellers may stir up the sediment; and
     Areas with pods of whales, convergence zones, and
boundaries of major currents.
    The proposed deletion is based on the finding that such measures
are not practical to implement. These conditions are usually beyond the
control of the vessel operator during the uptake and discharge of
ballast water and thus it is not an available measure or practice to
minimize or avoid uptake of ballast water in those areas and
situations. 33 U.S.C. 1314(b)(2)(B). In lieu of these measures, the
VIDA and the proposed rule contain several provisions that can help
address some of the situations identified above. For example, in cases
of a known outbreak of harmful algal blooms or viral hemorrhagic
septicemia, a state can submit a petition to EPA or the USCG requesting
EPA to issue an emergency order as provided for in CWA Section
312(p)(7)(A)(i). The emergency order provision in the VIDA acknowledges
that when a water quality or invasive species issue is identified in a
geographic area, EPA will identify appropriate BMPs to address that
concern and impose specific requirements on the universe of vessels
(and potentially others) as necessary. 33 U.S.C. 1322(p)(4)(E)(i).
v. Numeric Ballast Water Discharge Standard
    Pursuant to CWA Section 312(p)(4)(B)(iii), the proposed rule would
continue, as a numeric discharge standard, the numeric discharge
limitations previously contained in the VGP, to include:
     For organisms greater than or equal to 50 micrometers in
minimum dimension: Discharge must include less than 10 living organisms
per cubic meter of ballast water.
     For organisms less than 50 micrometers and greater than or
equal to 10 micrometers: Discharge must include less than 10 living
organisms per milliliter (mL) of ballast water.
     Indicator microorganisms must not exceed:
    [cir] Toxicogenic Vibrio cholerae (serotypes O1 and O139): A
concentration of less than 1 colony forming unit (cfu) per 100 mL.
    [cir] Escherichia coli: A concentration of less than 250 cfu per
100 mL.
    [cir] Intestinal enterococci: A concentration of less than 100 cfu
per 100 mL.
    The proposed rule would define ``living'' using the CWA Section
312(p)(6)(D) clarification that the terms `live' and `living' shall not
include an organism that has been rendered nonviable; or preclude the
consideration of any method of measuring the concentration of organisms
in ballast water that are capable of reproduction. However, it is
important to recognize that as of the time of the proposed rule, the
USCG has not identified any testing protocols, based on best available
science, that are available for use to quantify nonviable organisms in
ballast water. As such, compliance with the proposed discharge standard
requires the use of test methods as detailed in the 2010 EPA Generic
Protocol for the Verification of Ballast Water Treatment Technology
that do not consider non-viable organisms as part of the test protocol.
Should the USCG identify one or more testing protocols that enumerate
nonviable organisms, such methods would be acceptable for demonstrating
compliance with the proposed numeric

ballast water discharge standard (U.S. EPA, 2010).
    In addition, the proposed rule would continue the numeric discharge
limitations as a numeric standard for four biocide parameters contained
in the VGP, namely:
     For any BWMS using chlorine dioxide, the chlorine dioxide
must not exceed 200 [micro]g/L;
     For any BWMS using chlorine or ozone, the total residual
oxidizers must not exceed 100 [micro]g/L; and
     For any BWMS using peracetic acid, the peracetic acid must
not exceed 500 [micro]g/L and the hydrogen peroxide must not exceed
1,000 [micro]g/L.
    The standard for both the organisms and biocide parameters
represents instantaneous maximum values not to be exceeded.
    The proposed rule would continue the requirement contained in the
VGP and USCG regulations at 33 CFR part 151 that, prior to the
compliance date for the vessel to meet the discharge standard, ballast
water exchange must be conducted as required in section 139.10(e) of
the proposed rule, or the applicable regional requirements in sections
139.10(f) and 139.10(g) of the proposed rule, for any vessel subject to
the ballast water discharge standard. As directed in the VIDA, the USCG
will include requirements regarding compliance dates in its proposed
regulation. 33 U.S.C. 1322(p)(5)(A)(iv).
A. BAT Rationale for Standard Pursuant to VIDA
1. Types of Ballast Water Management Systems Determined To Represent
BAT
    The treatment technologies used for ballast water management
representing BAT typically have three processes: Physical separation,
disinfection, and neutralization. For physical separation, filtration
is used most often as a pre-treatment by removing large organisms and
particles (down to about 40-50 [micro]m) from ballast water. Filtration
improves the efficiency of subsequent disinfection processes by
lowering the amount of chemicals or ultraviolet (UV) light needed.
Filtration is also important for chemical disinfection because
chemicals are relatively ineffective against organisms buried in
sediment, especially invertebrates in resting stages (U.S. EPA, 2011a).
    Disinfection is the effect of a chemical (e.g., an oxidant) or
physical action (e.g., UV irradiation, heat, shear force, etc) that
kills organisms or renders them no longer able to reproduce. The types
of disinfection processes of a BWMS broadly includes UV radiation,
electrochlorination, chemical addition, ozonation, heat and
deoxygenation. Disinfection using UV radiation is currently the most
common disinfection technology used in BWMS and is typically combined
with filtration during ballasting. The UV light is emitted from a
mercury arc lamp, and the rays transfer electromagnetic energy through
the organism's cell membrane to chemically alter DNA in its nucleus
which kills the organism or terminates its ability to reproduce. A UV-
based BWMS often includes a second round of UV treatment when
deballasting.
    Electrochlorination (or electrolysis) systems are the second most
common type of disinfection system used to treat ballast water.
Electrochlorination creates hypochlorous acid, the active substance, by
running an electric current through saltwater. The two primary
requirements for treatment are a minimum salinity in the ambient water
for the reaction to occur and a power source with direct current to run
the electrolyzer. Two design options for electrochlorination systems
are used in BWMS: In-line and side-stream treatment. Both systems
undergo the same chemical reaction in an electrolyzer but vary in the
concentrations of active substance created and in the volume of water
dosed. Chemical addition (e.g., liquid sodium hypochlorite), ozonation,
and deoxygenation are other types of ballast water disinfection
technologies that have been developed and type-approved; although, use
of these systems is far less common than UV and electrochlorination
systems.
    Neutralization is the addition of a neutralizing agent that reacts
with excess disinfection chemicals to eliminate their toxicity at
discharge. Neutralization is an important step in chemical ballast
water treatment to avoid excess chemicals, residual oxidizers, and
disinfection by-products from entering and impairing the water at the
point of discharge. As required in the 2013 VGP, the proposed rule
includes a numeric standard for residual biocides which can be met
through neutralization of treated ballast water.
2. Justification for the Numeric Ballast Water Discharge Standard
i. Type-Approval of Ballast Water Management Systems is a Well-
Established and Demonstrated Process for Selection of Technologies
    As a preliminary matter, EPA notes that the establishment of a
ballast water discharge standard for vessels (both domestic and
international) using technology based criteria pursuant to the CWA
poses challenges that are not present for stationary facilities for
which EPA routinely establishes national discharge effluent limitations
guidelines and standards based on BAT under the effluent limitation
guidelines program. Importantly, it is impractical to conduct routine
monitoring and analysis of the discharged ballast water from vessels to
assess the ability of an installed BWMS onboard a ship to meet the
numerical discharge standard for biological parameters. Rather, the
biological efficacy of any BWMS is best demonstrated through a series
of land-based and shipboard trials performed specific to each BWMS.
Such a system, when selected, installed, and operated consistent with
the manufacturer's specifications, as tested in those land-based and
shipboard trials, and ``type-approved'' by an Administration (i.e., the
federal agency responsible for approvals) is then expected to meet the
discharge standard for biological parameters in the proposed rule.
    The BWMS type-approval process was first developed as part of the
IMO International Convention for the Control and Management of Ships'
Ballast Water and Sediments (i.e., the BWM Convention), an
international treaty developed with a goal of establishing an
international standard for the management of ballast water (IMO, 2004).
The BWM Convention was adopted in 2004 after more than 14 years of
complex negotiations between IMO member states and entered into force
in 2017, 12 months after ratification of the BWM Convention by a
minimum of 30 member states, representing at least 35 percent of world
merchant shipping tonnage. Regulation D-2 of that BWM Convention
established the ballast water discharge performance standard as
follows:
     Organisms greater than or equal to 50 micrometers in
minimum dimension--less than 10 viable organisms per cubic meter;
     Organisms less than 50 micrometers in minimum dimension
and greater than or equal to 10 micrometers in minimum dimension--less
than 10 viable organisms per milliliter;
     Indicator microbes:
    [cir] Toxicogenic Vibrio cholerae (O1 and O139): Less than 1 colony
forming unit (cfu) per 100 milliliters or less than 1 cfu per gram (wet
weight) zooplankton samples;
    [cir] Escherichia coli: Less than 250 cfu per 100 milliliters; and
    [cir] Intestinal enterococci: Less than 100 cfu per 100
milliliters.
    Regulation D-3 requires that any BWMS used to meet the standard be
approved in accordance with specific IMO procedures, which had
initially

been adopted as guidelines (Guidelines for Approval of Ballast Water
Management Systems, or more commonly referred to as ``G8'' for being
the eighth in a series of BWM Convention guidelines) but subsequently
adopted into the BWM Convention as mandatory (IMO, 2008; IMO, 2016).
The approval process includes detailed requirements for BWMS vendors to
submit BWMS for both land-based and shipboard testing by independent
third-party test facilities to demonstrate that the BWMS can meet the
D-2 standard following technical specifications detailed in the Code
for Approval of Ballast Water Management Systems (BWMS Code, Resolution
MEPC.300(72; 13 April 2018, effective October 13, 2019) (IMO, 2018a).
Upon a successful demonstration that a BWMS can meet the D-2 standard,
such a system is approved (``type-approved'') for use onboard a ship.
Adoption of the BWM Convention in 2004 prompted development of ballast
water management systems (BWMS) that could demonstrate compliance with
the D-2 standard. In this approach, unlike how EPA develops effluent
limitations guidelines and standards based on demonstrated treatment
system effectiveness, the BWM Convention establishes a standard, then
vendors develop systems to be demonstrated and approved as meeting that
standard. As of October 2019, the IMO recognizes 80 BWMS approved by
one or more administrations as capable of meeting the D-2 standard
(IMO, 2019).
    While the United States is not party to the BWM Convention, the
USCG developed domestic regulations with the intent to harmonize as
closely as possible with the adopted BWM Convention, and established a
discharge standard to be met using a BWMS that has been demonstrated as
capable of meeting that standard through a USCG type-approval process.
Criteria for the USCG type-approval are detailed in regulations at 46
CFR 162.060, Ballast Water Management Systems and address BWMS design,
installation, operation, and testing to ensure any type-approved system
meets both performance and safety standards. The USCG type-approval
testing requirements were widely accepted as having been more complex
and rigorous than those of the IMO (although this is not necessarily
still the case since adoption of the BWMS Code). The USCG regulations
provide for temporary use of foreign type-approved BWMS in the United
States for up to five years after the vessel is required to comply with
the ballast water discharge standard.
    Type-approval is a critical step in verifying that a BWMS, when
tested under standardized and relatively challenging conditions, is
capable of consistently meeting the discharge standard. In the USCG
type-approval testing process to determine biological efficacy, careful
analyses are employed to (1) assure the source water for testing meets
a threshold concentration of organisms to meaningfully challenge the
BWMS, and (2) to quantify (ideally, sparse) concentrations of living
organisms in treated and untreated (i.e., control) discharge water. As
part of its type-approval procedure, the USCG regulations require BWMS
land-based testing to be conducted pursuant to the ETV Protocol (i.e.,
the 2010 Generic Protocol for the Verification of Ballast Water
Treatment Technology, developed under the now defunct EPA Environmental
Technology Verification Program) that outlined the experimental design,
sampling and analysis protocols, test, and reporting requirements (U.S.
EPA, 2010).
    The USCG type-approval process contrasts with the typical approach
when EPA develops a numeric discharge effluent limitations guideline or
standard under the effluent limitation guidelines program. There, EPA
does not also specify the technology that must be used; rather, EPA
identifies one or more technologies that have been demonstrated as
being capable of meeting the discharge standard and the discharger
selects one of those technologies. EPA typically establishes numeric
effluent discharge limits based on a daily maximum and long-term (i.e.,
monthly) average to reflect pollution control that reflects BAT,
including accounting for variability at well-operated systems.
Compliance with such effluent limits is demonstrated through routine
self-monitoring by the discharger. Because of the challenges with
collecting and testing representative samples of ballast water at the
time of discharge, regulating discharged ballast water sourced from
around the world has required a different approach. Namely, EPA adopted
the USCG and IMO approach over the last decade by not only setting the
numeric discharge limitations, but also specifying the technologies
deemed to meet the limitations through the type-approval process.
Currently, for vessels operating in waters of the United States and
contiguous zones, compliance with the key biological parameters (i.e.,
organisms in the 10-50 microns and greater than 50 microns ranges) is
achieved largely through demonstrating that any installed BWMS is
operated and maintained consistent with the criteria under which that
system received USCG type-approval, acknowledging that discharges are
required to meet the discharge standard as well.
    The proposed ballast water discharge standard reflects EPA's BAT
analysis that any USCG type-approved BWMS kill, render harmless, or
remove living organisms from ballast water. These approved technologies
have been demonstrated to achieve the existing requirements, and
therefore are technologically available; for the reasons set out in the
2013 VGP Fact Sheet, they are also economically achievable and have no
unacceptable non-water quality environmental impacts. The USCG type-
approved its first BWMS in 2016 and to date, more than two dozen
systems have received USCG type-approval (USCG, 2019).
ii. International Nature of Vessel Operations Dictates Consideration of
IMO Discharge Standard
    When developing the VGP, EPA established the numeric ballast water
effluent limits equivalent to the standard in the USCG regulations (33
CFR 151.1511 and 151.2030) and generally consistent with the BWM
Convention. In establishing those effluent limits, EPA demonstrated it
was critical to consider that BWM Convention. As described above, the
United States is not a party to the BWM Convention; however, both the
USCG (serving as the lead for the U.S. delegation) and EPA were
actively involved in the standard setting discussions that led to the
BWM Convention numeric discharge standard which entered into force in
September 2017. Worldwide, it is estimated that approximately 34,000-
70,000 commercial vessels are required to meet a ballast water
discharge standard (IMO, 2016a; King and Hagan, 2013). Vessels from IMO
member countries that have signed onto the BWM Convention are required
to comply with both the BWM Convention and U.S. ballast water
regulations when operating in U.S. waters. Similarly, U.S.-flagged
vessels must meet the BWM Convention requirements when operating in any
countries that are a signatory of that BWM Convention (e.g., a U.S.-
flagged vessel will be required to comply with Canadian regulations
developed pursuant to the BWM Convention when in Canadian waters).
    Based on the most recent five years of VGP annual reports submitted
to EPA, over 75 percent of vessels discharging ballast water spent 25
percent or less of

their time (and nearly 60 percent of those vessels that discharged
ballast water spent less than 10 percent of their time) operating in
waters of the United States or waters of the contiguous zone (U.S. EPA,
2020). As of October 31, 2019, 81 IMO member countries representing
more than 80 percent of the world merchant fleet by tonnage have
ratified the BWM Convention, thus requiring vessels either flying the
flag of those countries or operating in those countries to comply with
that BWM Convention (IMO, 2020). Thus, vessels comprising 80 percent of
the world merchant fleet by tonnage are obligated to comply with the
BWM Convention anywhere they operate in the world, including while
operating in the United States. The movement of vessels through
international waters, the need to comply with any international
pollution control standard, and the great variability in source water
quality among all the ports where vessels operate presents process and
engineering challenges that are unique to the vessel community. This is
particularly true of BWMS where the physical scale of such systems
relative to the vessels themselves often makes it impossible to
accommodate redundant systems or potentially even two different systems
to be used depending on where the vessel may be ballasting. These
practical challenges relate to the technical availability of such
requirements where the relationship between U.S. and other
international requirements may limit the ability of the vessel to
select and install technologies capable of complying with multiple sets
of requirements where that vessel is intending to voyage. With that in
mind, it is important that EPA considers the implications for the
entire universe of vessels that may operate in waters of the U.S. and
waters of the contiguous zone. So, while the U.S. requirements do not
have to be identical to the BWM Convention, it is important that, to
the extent possible, U.S. requirements do not conflict with
international obligations for the vessels of flag states that have
signed onto that BWM Convention.
    In 2015, in Nat. Res. Def. Council, et al. v. U.S. Envtl. Prot.
Agency, et al., 808 F.3d 556 (2d Cir. 2015), the United States Court of
Appeals for the Second Circuit found, among other things, that EPA
acted arbitrarily and capriciously in the 2013 VGP because EPA failed
to address why it did not select technologies that could have resulted
in a more stringent limitation than the technologies underlying the IMO
Standard. The court stated that there are shipboard technologies
capable of surpassing the international standard and that EPA failed to
demonstrate why limits based on these technologies were not considered.
The information cited by the court is the 2011 Science Advisory Board
(SAB) report that showed that nine BWMS representing five types of
systems had data generated during their IMO type-approval testing
demonstrating that these systems can meet a standard between the IMO/
USCG standard and 10 times the standard for one or more organism sizes
(U.S. EPA, 2011b).
    Establishing a discharge standard necessarily based on the most
stringent of type-approved systems, as implied by the court's decision,
is not required where mitigated by one of the factors relevant to BAT
under CWA Section 304(b), therefore EPA does not believe the Second
Circuit's decision must dictate the outcome of the agency's analysis.
As discussed above, the BAT factors, particularly with respect to
process considerations and engineering challenges, weigh in favor of
maintaining the proposed ballast water standard at a level of
consistency with the IMO standard. This is not to say that U.S.
requirements must or should always be identical with the international
standard. However, particularly for ballast water discharges, which are
frequently significant in scale and expensive to control and which are
intrinsic to the long-distance movement of vessels through
international waters, EPA places value on being consistent with
international obligations, when reasonably possible, in establishing
BAT. Here, it is neither reasonable nor appropriate for the universe of
vessels that would be regulated under the proposed ballast water
discharge standard to not consider the international obligations for
those vessels. The current world economic and trade system is
predicated on timely and efficient maritime transportation, a
significant proportion of which operates globally where trade takes it.
Many of the vessels that are subject to the U.S. discharge standard
spend most of their time outside of waters of the United States and
waters of the contiguous zone, are operating under international
ballast water obligations, which for the most part is the IMO standard
established in the BWM Convention.
    The record for this proposed rulemaking demonstrates that the
proposed standard reflects BAT in that the current technology, USCG
type-approved BWMS, are technologically available, safe, effective,
reliable, and commercially available for shipboard installation. Also,
the record indicates that their use is economically achievable. These
technologies have been shown (i.e., through shipboard type approval
testing) to substantially reduce the concentration of living organisms
in ballast water discharges (and achieve the IMO and USCG/EPA discharge
standards) compared to mid-ocean exchange or discharges of unexchanged
ballast water.
iii. Proposed Standard Accounts for Multiple Sources of Variability
    The proposed standard successfully accounts for various sources of
variability inherent in addressing ANS in ballast water, including:
     Vessel size, operational profile (e.g., voyage lengths,
volumes of ballast water, ballast water flow rates, etc.) and class and
flag state;
     Ballast water management system (BWMS) performance in
diverse environments; and
     Discharge monitoring (i.e., sampling and analysis).
    This variability in addressing ANS dictates that different BWMS
options are needed to account for differences in vessels such as
different voyage patterns (in marine, brackish, or fresh waters),
ballasting rates, architectural characteristics of the vessel such as
space constraints or the need to locate the BWMS in a hazardous
location onboard the vessel, and BWMS vendor support availability at
locations around the world where that vessel intends to voyage. That
is, a BWMS that is technically and operationally appropriate for one
vessel may not be so appropriate for a different vessel, or even a
similar vessel with a different operating profile. EPA analysis for the
proposed rule is based on a similar determination that a wide range of
available systems is necessary to accommodate technical and operational
differences of varying vessel types, sizes, operating profiles, classes
and flag states. The existing discharge standard has promoted through
the type-approval process a range of types of BWMS disinfection
technologies (including UV, electrochlorination, chemical addition,
ozonation, and deoxygenation) that operate under a wide range of
conditions allowing vessel operators to select a system that is most
appropriate for that vessel, considering factors such as:
     The vessel's ballast tank(s), pump(s), and piping
configuration;
     Temperature, salinity, and turbidity range of uptake water
in areas where the vessel voyages;
     Duration of voyages and segments of each voyage that can
affect the

necessary holding time for certain systems;
     Ballast water capacity and required uptake and discharge
pumping rates;
     Treatment system weight and space considerations,
including accessibility and acceptability for use in hazardous spaces;
     Availability of service, support, replacement parts,
supplies, etc. in areas where the vessel voyages;
     Compatibility of treatment with vessel construction (e.g.,
corrosivity concerns);
     Power demand and energy consumption to pump ballast and
operate treatment system; and
     Safety concerns (e.g., explosivity risks, particularly on
oil and chemical carriers).
    Certain systems may be more advantageous for certain types of
vessels. For example, the choice of many shipowners may be limited to
UV systems as compared to chemical-based systems for those vessels that
operate in ports around the world that ban or impose very low discharge
limits on certain hazardous chemicals (i.e., treatment chemicals) used
by certain BWMS. In addition, it may be difficult or impossible for a
vessel operator to obtain specific chemicals for certain BWMS in
certain ports around the world. Similarly, a vessel owner may choose a
chemical-based system because they do not have the electrical
generation capacity (or room to add such capacity) onboard to support a
UV system. Shipowners' decisions may also be based on the ease of
operational and maintenance requirements. As such, it is critical that
a range of BWMS be available to the global shipping industry to reduce
ANS discharge under a variety of operational and environmental
conditions.
    Variability is inherent to all well-operated treatment systems.
When EPA establishes BAT, it must consider the variability at a well-
operated treatment system to ensure that the standard is
technologically available. EPA's approach to providing for some
variability for well-operated systems in establishing BAT limits in
effluent limitations guidelines rulemakings has been upheld by the
courts several times. See for example, Nat'l Wildlife Fed'n v. U.S.
Envtl. Prot. Agency, 286 F.3d 554, 572 (D.C. Cir. 2002), which upheld
EPA's decision to set the monthly average at the 95th percentile by
stating that EPA has considerable discretion in determining a technical
approach that will ensure that the effluent limitations reasonably
account for the expected variability in plant operations while still
maintaining an effective level of control. See also Chemical Mfrs.
Ass'n v. EPA, 870 F.2d 177, 229 (5th Cir. 1989), where it is upheld
that the purpose of these variability factors is to account for routine
fluctuations that occur in plant operation, not to allow poor
performance. As is typically the case in the effluent guidelines
program, operators design pollution control systems to achieve results
below the discharge standard on a long-term basis to account for normal
variability at well-operated systems.
    The goal of the USCG type-approval process is to demonstrate that a
BWMS can treat ballast water such that organism concentrations in
discharged water are sufficiently low to meet the discharge standard
(e.g., less than 10 organisms per cubic meter of ballast water as an
instantaneous maximum) for a given number of consecutive valid tests.
The individual test results are reflective of the conditions of the
water quality at the land-based and ship-based testing facility at the
time. The type-approval process acknowledges that there will be
variability in how systems are tested but establishes an instantaneous
maximum value to verify BWMS performance using a set of challenging,
but not rare, water quality conditions representative of the natural
environment. Comparing type-approval data for different systems would
only be appropriate if all other variables were held constant or under
complete control during the test. However, that is not the case. For
example, as required in the USCG type-approval process, shipboard
testing occurs on systems for a period of six months in the locations
where that vessel voyages during that time period, regardless of where
else that vessel has voyaged or plans to voyage in the future. As such,
the test results illustrate that BWMS manufacturers are having systems
tested in a variety of environmental conditions and locations around
the world, all with the goal of demonstrating that the BWMS can
consistently meet, not necessarily exceed, the IMO discharge standard.
Demonstrating a system can achieve this discharge standard regardless
of the environmental factors is the standard by which the USCG
evaluates these systems. [46 CFR 162.060-10(f)(2)]. To do otherwise is
to unfairly favor systems that may have had more favorable test
conditions.
    Multiple sources of variability exist in type-approval sampling and
analysis that also affects the results of type-approval testing. For
example, stratification in ballast tanks, variability between tanks,
flow rates, and contamination in uptake and discharge pipes are just a
few of the considerations that may impact type-approval testing. It is
also a challenge to capture and count appropriately sized organisms and
to collect samples such that the sample collection process does not
physically damage or kill these organisms (which should be counted as
dead or nonviable only if such happens as a result of the BWMS, not
because of poor sample collection and handling practices). Currently,
the ETV Protocol is an EPA and USCG accepted method to evaluate the
performance characteristics of commercial-ready BWMS regarding factors
such as biological treatment performance, predictability/reliability,
cost, environmental acceptability, and safety. Based on the ETV
Protocol, the determination of the concentration of living organisms in
treated water is done through manual microscope counts by trained
microscopists.
    The sources of uncertainty are systematic error, which is the loss
of organisms during sampling and processing, which can be substantial,
and random error, which is the difference in organism counts among
analysts and among replicate subsamples, as well as variability across
measurements of sample volumes. Counting organisms within a size class
under a microscope is also challenging. For one, it is difficult to
evaluate and count dormant or immotile organisms. Also, organisms can
have a wide variety of shapes making it difficult to assign to a size
class. For example, phytoplankton (organisms in the 10-50 micron size
class) may be combined in chains or radially and may be either
symmetrical or asymmetrical. Also, sizing generally is to be based on
the minimum diameter of width of the cell except for things such as
spikes, hair, or appendages. The Second Circuit recognized and upheld
an EPA rule that considers the margin of error inherent in measuring
aquatic organisms to allow for a standard that is not equivalent to
also represent the same level of control. See for example, Riverkeeper,
Inc. v. U.S. Envtl. Prot. Agency, 358 F.3d 174, 188-89 (2d Cir. 2004)
upholding EPA's Track II requirements allowing for ``substantially
similar'' reductions in impingement and entrainment at new facility
cooling water intake structures as not a less stringent standard but
the same standard accounting for the measurement margin of error when
measuring in the natural environment.
    In the case of ballast water, the operators experience even greater
variability than would exist at a shoreside facility subject to a
typical effluent guideline because, rather than the numeric discharge
standard being a

long-term or monthly average, that standard is based on an
instantaneous maximum standard, never to be exceeded, which is the unit
of time selected for compliance monitoring because of the challenges
associated with monitoring, despite varying turbidity, salinity,
temperatures and other environmental factors. Vessel owners may have to
modify vessel operations to ensure ballast water treatment requirements
do not exceed the limitations of the BWMS. BWMS manufacturers must
account for these two conflicting challenges--continuous compliance and
inherent variability--in their system design and operation. Vendors
accomplish this by (1) designing their systems to achieve long-term
average discharge concentrations that are lower than the numeric
discharge standard, and (2) adequately controlling for variation in
BWMS performance. Designing a system to meet an instantaneous maximum
requires even a higher level of control than that necessary to meet a
daily maximum. Designing and operating BWMS to consistently achieve
levels close to the numeric discharge standard is poor practice because
even relatively slight variability would result in a high rate of non-
compliance with the instantaneous maximum numeric discharge standard
(and would not pass the USCG type-approval testing process). This
partially explains why some of the test results described by the Second
Circuit Court decision on the VGP were lower than the current standard.
Nat. Res. Def. Council v. U.S. Envtl. Prot. Agency, 808 F.3d 566, 570
n.11 (2d Cir. 2015). EPA recognizes that variability in performance
around the long-term average occurs during normal operations, and that
at times even well-operated BWMS will discharge at a level that is
higher than the long-term average performance.
iv. Proposed Standard Provides a High Level of Pollutant Reduction
    The record demonstrates that the proposed standard reflects BAT in
that the current technology, USCG type-approved BWMS, are
technologically available, safe, effective, reliable, and commercially
available for shipboard installation. Also, the record indicates that
their use is economically achievable. These technologies have shown to
substantially reduce the concentration of living organisms in ballast
water discharges as necessary to meet the discharge standard, beyond
the reduction achieved through mid-ocean exchange or unexchanged
ballast water.
    Specifically, the current standard of 10 organisms per the
specified volume of ballast water for the two organism size classes
reflects BAT and the current technology basis, use of a USCG type-
approved BWMS, effectively removes ANS from ballast water. The Golden
Bear Research Center at the California State University Maritime
Academy, a university-government-industry partnership that provides
shipboard testing of commercial ballast water treatment technologies,
recently found BWMS that meet the proposed standard to be highly
efficient, achieving several log reductions in pollutant loadings. In
2018, the Center compiled over 100 side-by-side comparisons of the
concentrations of ``living'' organisms pumped into their test facility
during both land-based and shipboard tests in relation to the final
discharge concentration of living organisms after ballast treatment.
The order of magnitude of reduction of organisms ranged from 1,000 to
over 1,000,000 times; more than half of the comparisons fell in the
range 100,000 to 1,000,000 times, or, using the terminology of food and
drinking water management, a 5-log to 6-log reduction in targeted
organisms (in the log10 scale). In fact, the actual reduction is likely
larger because the data were conservatively calculated using fixed
minimum detection levels in treated water even when no live organisms
were observed at all. This evaluation demonstrates that type-approved
BWMS that are designed to meet the proposed standard are highly
efficient, achieving several log reductions in pollutant loadings. This
level of organism reduction approaches and even exceeds the stringency
required in drinking water testing and food management practices
(Golden Bear, 2018).
3. Available Information Does Not Justify a More Stringent Discharge
Standard
i. Data Quality of IMO BWMS Type-Approval Data Are Inadequate for BAT
Evaluation
    EPA carefully considered the IMO BWMS test data in the 2011 SAB
report that the Second Circuit Court referenced in its decision on the
VGP as evidence of BWMS capability, but finds they lack the necessary
quality for EPA to develop a revised, more stringent standard for two
reasons. Nat. Res. Def. Council v. U.S. Envtl. Prot. Agency, 808 F.3d
566, 570 (2d Cir. 2015). First, the data packages used in the SAB
report were from ballast water management system vendors for their IMO
type-approval packages developed under the original Guidelines for
Approval of Ballast Water Management Systems (G8) adopted in 2005 and
revised in 2008 (IMO, 2008). The SAB panel, in response to Charge
Question 1, concluded that the BWMS tested under the IMO ``will likely
meet USCG Phase I standards.'' In fact, after the SAB report, the USCG
found that not to be the case. Further, every vendor with a BWMS
requesting USCG type-approval has had to undergo a new round of testing
to demonstrate system performance to the satisfaction of the USCG. The
IMO has since updated, and codified, new type approval test
requirements (IMO, 2018a) that entered into effect in 2019 and address
many of the quality issues that limited the reliability of the IMO
type-approval data for evaluating BWMS performance.
    Second, although the SAB panel determined that nine BWMS
representing five BWMS categories had reliable data, they did not fully
assess data quality. Instead, the SAB panel made a critical assumption
that all protocols and methods were followed exactly as described,
regardless of the presence or absence of Quality Assurance/Quality
Control (QA/QC) procedures and documentation. Therefore, any use of the
findings of the SAB panel must consider this lack of quality
assessment. While the USCG does accept IMO data packages for its
Alternate Management System (AMS) program, importantly, the
requirements for the USCG BWMS type-approval testing require a
different type of testing and a higher level of QA/QC than that
required by the IMO until the recent entry into effect of the BWMS
Code.
    As part of the analysis for the proposed rule, EPA conducted an
independent review of BWMS performance and data quality. EPA developed
a rating system to provide an objective method for determining whether
available performance data are of acceptable quality for development of
the proposed standard. EPA found that most of the IMO data packages
lacked information on test-specific Quality Management Plans, Quality
Assurance Project Plans, and individual test results. Average data
results were frequently submitted without specific sample dates or
reporting of the individual results. While the quality of data improved
over time, many reports did not contain adequate information on field
replicate samples used for QA/QC measures or actual BWMS flow rates at
the time of samples. Also, and importantly, the IMO G8 guidelines
required five successful land-based tests as part of the type-approval
process regardless of how many tests were conducted to achieve those
five successful tests. Thus, for example, a

system that passed five land-based tests but also failed five tests
would be considered to have a successful land-based test for type-
approval. The IMO did recently revise the G8 guidelines to address this
issue. Now, as codified in the BWMS Code, five successful consecutive
land-based tests demonstrating compliance with the discharge standard
are necessary for type-approval.
    For these reasons, EPA found that foreign type-approval data, such
as that used by the SAB in its analysis, is inadequate to assess
whether any IMO-approved BWMS can meet the proposed discharge standard
and it follows that such a testing regime would not be of sufficient
scientific rigor to be appropriate for use in a BAT analysis. In
contrast, EPA found that performance data developed consistent with the
USCG type-approval procedures and requirements provided at 46 CFR
162.060 would be of sufficient quality for use in evaluating whether a
particular BWMS meets the proposed standard.
ii. Type-Approval Data Do Not Support a More Stringent Standard
    To date, more than thirty BWMS have received USCG type-approval.
The USCG treats all type-approval submissions as proprietary
information; however, EPA was provided anonymous data for 9
manufacturers (11 different BWMS) from the Ballast Water Equipment
Manufacturers Association (BEMA). EPA analyzed the data and determined
the data submission requirements of the USCG type-approval regulations
at 46 CFR 162.060 provides data of sufficient quality for EPA to
evaluate system effectiveness for a BAT determination (Ballast Water
Equipment Manufacturers Association, 2020).
    EPA considers that receipt and review of additional type-approval
packages would not support a more stringent standard because these test
results are within the same order of magnitude as the current standard
and fall within the margin of error expected due to the great
variability associated with the characteristics of ballast water and
challenges associated with monitoring, analyzing, and enumerating
organisms in the different size classes. As noted above, in addressing
EPA's effluent limitation guidelines for cooling water intake systems,
the Second Circuit Court of Appeals explained that it is reasonable for
a performance standard to reflect the margin of error that is inherent
when measuring organisms in a natural environment. See Riverkeeper,
Inc. v. U.S. E.P.A., 358 F.3d 174, 188-89 (2d Cir. 2004). The type
approval data must be considered with that margin of error in mind. For
example, type approval data provided by BEMA for the 11 different BWMS
show the discharge concentrations of organisms greater than 50 microns
range from less than 1 to as high as 9.5 organisms per cubic meter, and
for organisms between 10 and 50 microns, discharges range from less
than 1 to 9.7 organisms per milliliter (mL).
    In VIII.B.1.vi.A.3.i., Data Quality of IMO BWMS Type-Approval Data
are Inadequate for BAT Evaluation, EPA explains the basis for its
determination that the IMO data are not of adequate quality to base a
standard. However, to demonstrate the impact of the variability of
ballast water characteristics, EPA evaluated the court's citation to
three UV/filtration systems (Hyde Marine Guardian, Optimarin, and Alfa
Laval/Alfa Wall Pure Ballast). Nat. Res. Def. Council v. U.S. Envtl.
Prot. Agency, 808 F.3d 566, 570 n.11 (2d Cir. 2015). The court stated
EPA failed to consider the SAB data that showed these systems can meet
a standard between the current standard and 10 times the standard.
Implicit in the court's statements are that these three systems are
1.4, 3.7, 4.5, or even 7.7 times as effective as the current standard
based on the average discharge standard achieved by each BWMS. However,
that effectiveness is mischaracterized. In fact, as demonstrated in the
USCG type-approval data, simply because one type of BWMS had a lower
average discharge concentration than a second type of system did not
mean that first system had a higher treatment efficiency. Importantly,
the test results demonstrate that in some instances, BWMS achieved a
lower discharge standard than a second system during type-approval
testing but that first system had fewer organisms to treat in the
intake water than that second system. The BEMA data, as highlighted by
the examples provided above, demonstrate that performance varies even
within a single BWMS and achieving a low average discharge
concentration or high log reduction in one setting does not necessarily
mean this system is demonstrated to be a more effective system in all
situations. In any case, the effectiveness of any USCG type-approved
BMWS should not be downplayed. As demonstrated in the data provided by
BEMA, every one of the 11 systems achieved a treatment efficiency of at
least 99 percent, for both size classes and in both land-based and
shipboard testing meaning that any difference in treatment efficiency
between these systems is something less than one percent.
    The test results identified by the court indicating greater removal
of organisms are not an indication that these systems can achieve a
more stringent standard in all conditions. Rather, the test results
provide a variety of situations where BWMS manufacturers are testing
their systems in a variety of environmental conditions and locations
around the world, all with the goal of obtaining USCG type approval by
demonstrating that the BWMS can consistently meet, not necessarily
exceed, the IMO discharge standard. [46 CFR 162.060-10(f)(2)].
    To further demonstrate the true performance of a BWMS and to
highlight the change in treatment effectiveness associated with meeting
a more stringent discharge standard, EPA evaluated data provided
directly to EPA by the BWMS manufacturer, Alfa Laval, that had been
included as part of its type-approval package submitted to the USCG in
September 2016 for its PureBallast 3 filtration + UV BWMS, which
received USCG type-approval in December 2016. The results of EPA
analysis are presented in Table 1. Using the court's rationale, the
Alpha Laval PureBallast 3 system type-approved by the USCG demonstrates
3.7 times more effective treatment for large organisms (i.e., average
discharge concentration of 2.7) and 4.6 times more effective treatment
for medium organisms (i.e., average discharge concentration of 2.18
organisms). EPA calculated the actual treatment efficiency the Alfa
Laval system achieved as well as the efficiency the system would have
to achieve to meet the proposed discharge standard, a standard 10 times
(10x) more stringent, and a standard 100 times (100x) more stringent.
As shown in Table 1, the Alfa Laval system reduced large organisms (>50
microns in size) by 99.98 percent whereas a treatment efficiency of
99.92 percent was needed to meet the proposed discharge standard (i.e.,
the Alfa Laval system was 0.06 percent more effective). For medium
organisms (10-50 microns in size), the Alfa Laval system was 0.29
percent more efficient (Alfa Laval, 2017).
    Achieving a numeric discharge standard 10x and 100x more stringent
than the proposed standard would represent an insignificant improvement
in treatment system effectiveness for both large and medium organisms.
For achieving a standard 10x more stringent, the difference is that
between 99.92 and 99.99 percent efficiency for large organisms and
97.82 and 99.78 percent for medium organisms. For achieving a

standard 100x more stringent, the difference is that between 99.92 and
99.999 percent efficiency for large organisms and 97.82 and 99.98
percent for medium organisms. These differences in performance are
small and within the margin of error due to the variability in ballast
water uptake and testing and does not reflect substantial improvement
in ANS removal that would warrant a revised standard inconsistent with
the international standard.

                    Table 1--Treatment Efficiency of the Alfa Laval PureBallast 3 USCG Type-Approved Ballast Water Management System
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Organisms (/m\3\)                                                Removal efficiency (%) necessary to achieve
            Size class             --------------------------------  Stringency compared      Removal    -----------------------------------------------
                                        Uptake         Discharge         to standard      efficiency (%)     <10/m\3\         <1/m\3\        <0.1/m\3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
>=50 microns......................          13,026             2.7  3.7 times...........           99.98           99.92           99.99          99.999
10-50 microns.....................             459            2.18  4.6 times...........           99.53           97.82           99.78           99.98
--------------------------------------------------------------------------------------------------------------------------------------------------------

iii. Ballast Water Test Methods Do Not Allow for Establishing a
Discharge Standard 100 Times or 1,000 Times More Stringent or a ``No
Detectable Organisms'' Standard
    Consideration of a standard that is less than 1 organism per volume
of ballast water for the two organism size classes (i.e., a standard 10
times more stringent than proposed), including any standard that would
be more than 10, 100, or 1,000 times more stringent, is currently not
possible because there are no performance data available at these
organism concentrations (U.S. EPA, 2011b).
    As has been considered in the past by both EPA and the USCG, EPA
evaluated whether a discharge standard 100x or 1,000x more stringent
than the proposed standard is appropriate. As noted by the SAB,
``methods (and associated detection limits) prevent testing of BWTS to
any standard more stringent than the IMO D-2 standard and make it
impracticable for verifying a standard 100x or 1,000x more stringent.''
Further, the SAB concluded that no current BWMS can meet a standard
beyond 10x more stringent than the current standard (e.g., 100x or
1,000x) as even showing one organism using the current test methods
clearly exceeds that more stringent standard. As shown in the review of
publicly available USCG type approval data provided by BEMA and
evaluated by EPA, at least one living organism was identified in each
BWMS type-approval test. Thus, new or improved test methods are still
needed to support a statistical determination that technologies are
available to meet a standard 100 or 1,000 times more stringent than the
IMO discharge standard. Further, EPA has determined, consistent with
findings of the SAB, that it is unreasonable to assume that a test
result showing zero living organisms using currently available test
methods demonstrates complete sterilization if for no other reason than
a sample taken represents a very small portion of the overall discharge
and the collection of that sample may have missed the few live
organisms present in the discharge. And, collecting larger volumes of
ballast water becomes impractical. For example, the SAB estimated that
anywhere from 120-600 cubic meters of ballast would have to be
collected to meet a standard 10x more stringent (U.S. EPA, 2011b).
    EPA evaluated the available USCG type-approval data and found that
these data do not show that performance better than the proposed
discharge standard is achievable in all vessel types and situations. It
is important to consider that a USCG BWMS type-approval certification
is based on its system components at the time of certification and no
changes or optimizations to the technology can be made by the vessel
operator. For example, the vessel operator cannot change the filter or
chemical concentration to improve the system's performance without the
BWMS manufacturer notifying the USCG, in accordance with 46 CFR
162.060-16.
iv. Monitoring Limitations Do Not Support a More Stringent Standard
    If a more stringent standard were to be established, it would
require confidence in the ability to monitor at that lower
concentration to demonstrate both treatment effectiveness of available
technology and compliance with the discharge standard. However,
monitoring low concentrations of living organisms in ballast water (or
direct organism monitoring), by mass or any other measure, at lower
levels than necessary for demonstrating compliance with the existing
numeric discharge standard is impractical because of challenges with
collecting and analyzing ballast water to detect and quantify organisms
at those levels. In lieu of direct organism monitoring, in the VGP, EPA
developed a three-component self-monitoring program as a reliable
indicator of whether BWMS are effectively controlling the discharge of
living organisms: (1) Biological monitoring to indirectly assess the
effectiveness of reducing living organisms in the discharge, (2)
functionality monitoring of the system to assure it is operating as
designed, and (3) residual biocide/derivative monitoring for those
systems using active substances. Presently, there are no means to
routinely sample and analyze in real-time ballast water for compliance
with the discharge standard for the two largest size classes of
organisms, and while various tools are under development, there is no
widely-accepted methodology to formally evaluate and choose tools for
use in regulatory enforcement applications (Drake et al., 2014).
    There is no basis either in science or the CWA's BAT factors to
assume a BWMS can achieve a higher level of treatment than is supported
by reliable data. Therefore, regulators have had to rely on indirect
indicators of compliance to ensure that any BWMS continues to perform
as demonstrated during land- and ship-based type-approval testing.
``Functionality monitoring,'' as required by the VGP, is an indirect
indicator of compliance entailing the use of a variety of meters,
electronic sensors and analyzers that measure and transmit to control
systems operational data such as flow rate, pressure drops across
filters, disinfectant concentrations and energy intensity. If these
indirect measurements fall within the BWMS design operating ranges,
then it is reasonable to assume the BWMS is reducing living organisms
as required since the USCG type-approved the BWMS as being able to
achieve the living organism discharge standards when operating within
the design specifications. The lack of sampling and analysis methods
available to monitor ballast water discharges for the two largest
organism size classes at lower concentrations than the current

discharge standard with any statistical significance justifies EPA
proposing a discharge standard identical to the current standard.
    Demonstration of a higher level of treatment effectiveness
reasonably would require testing of a different parameter for which
there is the ability to monitor, which is likely some measure of
organisms other than the two organism sizes classes (and bacteria) upon
which the current standard is based. This would require a new type-
approval process, which would result in significant delays in testing,
``approving,'' and manufacturing an adequate supply of systems
available for installation aboard the global shipping fleet.
Conversely, this would require a comprehensive evaluation and selection
of more appropriate parameters than the two organism size classes,
undertaking a comprehensive monitoring program to sample and analyze
ballast water for those new parameters to evaluate BAT for those
parameters. Without such an evaluation, EPA does not have the necessary
data to justify treatment system effectiveness associated with the
required level of pollutant control.
4. Conclusion
    In summary, EPA and the USCG are committed to protecting U.S.
waters from invasive species and support a strong national and
international solution that does not disrupt the continuous flow of
maritime commerce that drives the U.S. and global economies. The
proposed rule would implement the VIDA requirement for ballast water to
establish the standard according to BAT by continuing the current EPA
and USCG standard given that the standard and the USCG type-approval
process is effective and promotes the development of highly efficient
technology to control ANS in ballast water. In the last three years,
the USCG has type-approved more than thirty ballast water management
systems (BWMS) for vessels that would meet the proposed discharge
standard, with at least half as many more under review. These systems
have provided a variety of treatment options for a breadth of national
and international vessels. The current standard continues to be
appropriate to significantly reduce invasive species transport given
the complexity of the universe of vessels that would be subject to the
proposed rule and the great variation of vessel processes and
engineering constraints of ballast water management. The current
standard is driving development of type-approved BWMS that are highly
efficient. Establishing a more stringent standard at this time would
not result in a meaningful improvement in system performance or
discharge reduction.
    The challenge in ballast water management that will reduce ANS
discharges is not adopting a lower or more stringent standard, but
instead focusing on the vessel installation of available and highly
efficient BWMS; proper operation and maintenance of those systems to
achieve the treatment efficacy demonstrated as part of the USCG type-
approval testing; and the evolution of vessel ballasting practices to
minimize volumes of ballast water requiring management. Only very
recently has EPA begun to see broad compliance of the vessel community
with installation, operation, and maintenance of the range of the USCG
type-approved BWMS. To date, about one-third of vessels operating
pursuant to the requirements of the VGP have installed BWMS (U.S. EPA,
2019). In 2017, the American Bureau of Shipping (ABS) conducted a
global survey of 27 shipowners with 220 vessels including bulk
carriers, tankers, containerships and gas carriers. In 2018, ABS
repeated the survey with more than double the participants of 60
shipowners and operators worldwide covering 483 BWMS installations for
seven different BWMS treatment technologies. In 2018, ABS found that 35
percent of BWMS installations were reported as operating regularly, and
the remaining systems were either inoperable or considered problematic.
Surprisingly, the survey findings show that the number of problematic
BWMS in operation increased from 29 percent in 2017 to 59 percent in
2018. It appears that many vessel operators are trying to get their
BWMS fully functional and into operation before the USCG or IMO
compliance deadlines (ABS, 2019) and in starting up and operating
installed systems, often for the first time after a period of nonuse
since installation, are finding unexpected problems. No particular
system is identified as being more or less likely to meet the discharge
standard.
    Opportunities for advancement in ballast water treatment and
technology may require EPA to assist the vessel community in tackling
installation and operational challenges with the existing BWMS and
future type-approved systems and best management practices. Significant
limitations remain in ANS monitoring such that setting a different
numeric discharge standard for ANS is unlikely to result in meaningful
technological advancement. The VIDA provides EPA and the USCG with this
opportunity to streamline the ballast water regulations which should
aid with the operation of demonstrated, but not yet fully optimized,
systems and with future systems as they continue to come online.
B. Ballast Water Reception Facilities
    The VIDA expressly excludes from the discharge standards ``ballast
water from a vessel . . . that only discharges water into a reception
facility.'' 33 U.S.C. 1322(p)(2)(B)(ii)(V). As such, CWA Section 312(p)
does not authorize EPA to regulate the transfer of ballast water from
ships to a reception facility as part of the proposed rulemaking.
Nonetheless, for the purposes of this proposed rule and to acknowledge
the 2015 Second Circuit Court decision on the VGP, EPA reviewed and
considered whether zero discharge or a more stringent discharge
standard based on the use of a reception facility may be BAT for
ballast water discharged from regulated vessels. Nat. Res. Def. Council
v. U.S. Envtl. Prot. Agency., 808 F.3d 566, 572-75 (2d Cir. 2015). For
the purposes of this proposed rule, unless otherwise noted, when EPA
refers to ``onshore'' or a ``reception facility,'' it refers to both
the transfer of ballast water to either an onshore reception facility
or another vessel for the purpose of storing or treating that ballast
water.
    The Second Circuit Court decision stated that EPA failed to give
fair and thorough consideration to reception facilities in setting the
discharge standards in the VGP. The Second Circuit stated that a
technology is ``available'' in the following instance: ``(1) the
transfer technology must be available within the first industry: (2)
the transfer technology must be transferable to the second industry;
and (3) it must be reasonably predicable that the technology, if used
in the second industry, will be capable of removing the increment
required by the effluent standards.'' Nat. Res. Def. Council, 808 F.3d
at 572-73. The Second Circuit stated that in establishing BAT,
consideration should be given to whether a particular technology that
is being used in another industry could form that technology basis for
BAT. As part of the proposed rule, EPA evaluated several technologies
to identify whether any such technology is transferable from another
industrial sector but has not found any such technologies that would
provide a greater level of control for ballast water from vessels. This
is largely because of the unique nature of ballast water and its use
aboard ships--which are not stationary, and, many of which spend a very
small portion of their time in the United States.
    In developing this proposed rule, EPA considered whether discharges
of ballast water to a reception facility could result

in zero discharge or a more stringent standard for ballast water
discharges than what currently exists. EPA investigated ballast water
discharges to a reception facility to better understand the
technological availability, economic achievability and the non-water
quality environmental impacts associated with limits based on its use
and explored the alternative forms of reception facilities--including
fixed treatment facilities (reception facilities or wastewater
treatment plants) and mobile, shore-based, or near-shore-based ballast
water treatment deployed on trucks, barges or boats--and feasibility
factors of the use of these facilities such as vessel and port
characteristics, economic feasibility, and treatment cost estimates.
    Despite considering the potential advantages identified in recent
years for the use of ballast water reception facilities (e.g., fewer
onshore facilities than shipboard systems would be needed; fewer
physical restrictions and time limitations could lead to effective
treatment technologies), the analysis identified many challenges of
implementing a national and international network of reception
facilities. By far the most significant challenge is ensuring the
availability of reception facilities at all ports of call, because if
even one anticipated port location for a vessel does not have an
available reception facility, that vessel would need an alternative
approach, likely requiring installation of a shipboard treatment
system, deferring the discharge of ballast water, or declining to call
at that port. A search of the National Ballast Information
Clearinghouse found that between the effective date of the 2013 VGP
(i.e., December 19, 2013) and the end of 2017, vessels with ballast
water operated in approximately 700 U.S. ports and discharged ballast
water in over 400 of those ports, with individual discharges as large
as 20 million gallons (75,000 MT) and daily combined discharges of more
than 25 million gallons (100,000 MT) in a day in a single port
(National Ballast Information Clearinghouse, 2020). To meet the ballast
water discharge management needs for these vessels would require some
type of reception facility at each of those 400 ports (as well as
potentially at some of those other 300 ports where vessels operate with
ballast water onboard and may at some point have the need to discharge
ballast); otherwise, any vessel needing to discharge ballast water at
any of these ports would need a BWMS. For example, numerous ports that
were initially expecting to accept liquified natural gas, during which
ships would offset the reduced cargo weight by taking on ballast water,
are now instead planning to export that liquified natural gas, with a
consequent need for ships to discharge ballast water while loading
cargo. This analysis does not consider the universe of vessels that
also operate in other countries and a similar expectation that without
reception facility availability, these vessels would still need to
install, operate, and maintain a BWMS. The massive scale of the new
physical infrastructure that would be needed to accommodate the
systematic deployment and application of shoreside ballast water
reception facilities is another process and engineering challenge that
weighs against the selection of a zero-discharge standard based on
discharge to a reception facility as BAT for ballast water. 33 U.S.C.
1314(b)(2)(B).
    Another critical challenge is retrofitting vessels with the
appropriate ballast water systems (including pipes and pumps) required
to move ballast water up from tanks and off the ship at a rate fast
enough that the vessel can perform normal cargo operations without
significant and costly delays. To date, no U.S. or international ship-
to-shore connection standard exists for non-oily ballast water
discharges. As such, vessels are not fitted with, nor would an
appropriate reception facility have, a standard size, configuration,
strength, etc. on which to base a design to ensure vessels would be
able to connect and discharge ballast water to such a facility. In a
similar situation, the IMO established connection requirements under
Regulation 13 of Annex I to MARPOL for oil mixtures, which have been
codified in USCG regulations at 33 CFR 155.430, and for which, a
similar set of requirements would be needed for non-oily ballast water
discharges. Without such an international standard for ballast water
connections, implementation of such a requirement would be impractical.
Additionally, the configurations of many ports are such that a vessel
may berth at any number of locations within the port, necessitating
that such reception connection equipment is available at each of these
berths and capable of being transferred from that point to the
reception facility. As an example of the challenge associated with such
a configuration, the Port of Duluth is a single port with 60 docks
spanning 49 miles of coastline (Lake Carriers' Association, 2016a).
    Also, reception facilities may not provide a complete solution to
ballast water treatment. For example, some vessels may need to
discharge part of their ballast water before arriving in port so they
can conduct cargo operations as soon as possible following arrival at
the dock; some vessels need to discharge ballast water to reduce draft
before arriving at berth; and lightering vessels may need to discharge
ballast as they load cargo at designated anchorages or lightering
zones. In each of these instances, some type of reception facility
would be required, further complicating the necessary infrastructure to
handle discharges from such disparate locations.
    The only instance of a ballast water reception facility being used
in the United States is in Alaska, specifically to remove oil from
ballast water discharges from single hull tanker vessels. Use of
facilities such as this, with modifications made specifically to remove
living organisms (e.g., filtration with second stage disinfection)
might be available for vessels sailing dedicated routes. However, many
commercial vessels do not stick to a single voyage pattern (even those
usually on dedicated routes) in all instances, which would necessitate
either finding a reception facility in the new port(s), rapidly
installing a shipboard BWMS, or likely being unable to discharge their
untreated ballast water in compliance with the VIDA requirements (which
may in effect prevent this vessel from voyaging to that port). Since
these changes in voyage patterns are often made on very short notice
(often on less than two weeks' notice), it would not be technologically
available to install a BWMS on these vessels quickly enough for that
new voyage.
    EPA evaluated several studies of reception facilities in the United
States, including ports in the Great Lakes, Baltimore, MD, California,
and internationally, including ports in the Caspian Sea, Netherlands,
Brazil, and Croatia. California has led the effort nationally to
explore the possibility of reception facilities. In 2013, the
California State Lands Commission funded a study to assess ballast
water reception facility approaches in California. The report from that
study (Glosten Associates, 2018), is currently the most comprehensive
review of reception facility options in California. The authors
concluded that a network of treatment barges would be the best
reception facility approach when compared to land-based treatment to
enable vessels to meet California's interim Performance Standards.
According to the Study, such an approach would not come without impacts
or costs. A barge-based network could lead to increased air emissions

and congestion at California's ports. In the case of the South Coast
Air Basin, these ballast water reception facilities could increase
overall harbor craft air emissions from 2.5 to 5 percent. The 30-year
lifecycle cost of building and operating a network of treatment barges
is estimated at $1.45 billion. Marine vessel operators will bear an
additional $2.17 billion in costs to retrofit vessels to support
transfer of ballast to barges. The authors estimated that it will take
a minimum of nine years to implement such a treatment network once the
funding is secured. Possible next steps identified by the authors
include pilot-scale testing of the ballast water treatment methods and
scale-up to a treatment barge to assess system performance over various
rates of ballast water transfer. As detailed in the final report: ``The
first six years will be occupied with the study of ballast water
discharges, building and pilot testing of treatment barge prototype(s),
development of transfer station standards, communication of
requirements to marine vessels, development of the PPPs [public private
partnerships], and contracting for the design/build of the treatment
barges. Years 7, 8, and 9 will be occupied with phasing in the
treatment barge network. Importantly, Year 1 starts only after budgets
and plans have been put into place.'' Thus, in the best case, once
funding is available, implementation of a barge-based ballast water
management approach in California is still nine years away, if that the
pilot project demonstrates such an approach is viable. And importantly,
as noted in that report, as of today, no such onshore or barge-based
reception facilities currently are in operation in the United States
(King and Hagan, 2013; Hilliard and Kazansky, 2006; Hilliard and
Matheickal, 2010; Brown and Caldwell, 2007; Brown and Caldwell and Bay
Engineering, 2008; COWI A/S, 2012; Damen, 2017; Glosten Associates,
2018; Hull & Associates, 2017; Maglic et al., 2015; Pereira and
Brinati, 2012; U.S. EPA, 2011b; USCG, 2013).
    Another complication of a reception facility approach is that
vessel operators in most cases are not the entities that would build
and operate such facilities. As such, these reception facilities would
likely only be created where an organization, such as a port authority
or terminal operator, identifies a financial opportunity from
constructing and operating such a facility. It would be highly
speculative that any organization would choose to do so. The scale and
cost of operating reception facilities at the hundreds of ports
nationwide that handle ballast water from tens of thousands of vessels
would require billions of dollars and weighs against finding such
technology to be available or economically achievable. It also ignores
the thousand plus ports worldwide directly or indirectly linked to many
of these same vessels that reasonably would want to be able to
discharge ballast to a reception facility at any port visited rather
than having to also install and operate a BWMS in those areas where a
reception facility is not available. As cited in the Second Circuit
decision, Nat. Res. Def. Council v. U.S. Envtl. Prot. Agency., 808 F.3d
566 (2d Cir. 2015), the SAB scientists pointed out that: ``[S]hipboard
treatment and onshore treatment represent distinct approaches to
ballast water management that would each require different large
investments in infrastructure . . . . Thus we are almost certain to be
stuck for a very long time with whichever approach is used as the BAT
in setting discharge standards in 2013. It is thus of the utmost
urgency that a fair and thorough comparison of the two approaches be
made at this time.'' Whether the opinion of the SAB is accurate, it is
likely that selecting the reception facility approach would require
vessels to also install onboard systems for those times when the vessel
may need to discharge ballast water in a port that may not have a
functioning reception facility. A further complication here is not just
in having to install an onboard system for use only some of the time,
it is that if the onboard system is not used consistently and sits idle
for a significant portion of the time, it is unlikely to work
effectively and is more likely to experience mechanical problems due to
periods of nonuse. Conversely, a vessel with an onboard system could
operate worldwide without having to rely on others for ballast water
management. While use of a reception facility assumes a higher level of
treatment than can be achieved onboard a vessel, the specific
evaluation performed at each of these hypothetical reception facilities
may not actually result in significant discharge reductions.
    Based on the record before it, EPA has determined that reception
facilities are not technologically available or economically achievable
at this time. While EPA understands that the use of reception
facilities, if available, may be a valid and effective component of
ballast water management in certain situations, the challenges in
creating such a comprehensive infrastructure nation-wide (and world-
wide) make reception facilities simply not technologically available as
defined in the CWA. It also appears to have unacceptable non-water
quality environmental impacts in some areas. It is logistically more
complex than shipboard treatment for the shipping industry to implement
and requires vessel as well as port modifications to be accommodated.
It is unlikely that ballast water reception facilities could become a
national ``one size fits all'' option for ballast water management,
principally because it cannot accommodate widely varying trade routes
without the availability of reception facilities in most ports. Port-
specific conditions may also preclude any technically available and/or
economically achievable reception facility alternatives. Integration
with port and vessel operations would require careful planning, design,
and operation. If in the future reception facilities become available
and economically achievable and have acceptable non-water quality
environmental impacts in certain locations for certain specialized
sectors of the commercial vessel industry EPA would revisit the
standards, but, for now, such an option has not been demonstrated to
reflect BAT.
C. Vessels Operating Exclusively on the Great Lakes
    After careful consideration of all the relevant factors, EPA
proposes to subcategorize and not require any vessel operating
exclusively on the Great Lakes, regardless of when they were built, to
meet the numeric discharge standard and instead to continue to require
that these vessels implement best management practices. As required by
the VIDA, EPA assessed the best available technology that is
economically achievable and determined that the challenges analyzed in
the VGP remain true today. This proposed exemption is based on a set of
unique circumstances that make ballast water management especially
challenging for these vessels. The challenges include issues related to
the operational profile and design of these vessels and issues related
to the unique nature of the waters of the Great Lakes. A fuller
discussion of EPA's analysis appears below.
1. Ballast Water Management of Vessels Operating Exclusively on the
Laurentian Great Lakes
    The VGP exempted vessels that operate exclusively on the Laurentian
Great Lakes, commonly referred to as ``Lakers,'' and built before 2009
from meeting the numeric discharge standard. As defined by the VGP,
this

includes vessels that operate upstream of the waters of the St.
Lawrence River west of a rhumb line drawn from Cap de Rosiers to West
Point, Anticosti Island, and west of a line along 63 W longitude from
Anticosti Island to the north shore of the St. Lawrence River. EPA
selected January 1, 2009 as the cutoff date because the IMO originally
established this date to require treatment for certain new build
vessels. At the time, EPA anticipated that vessels designed to enter
the market beginning in 2009 would be prepared to meet the VGP
requirements. Since that time, EPA has evaluated the few U.S. and
Canadian Lakers that had been built since 2009 and concluded that they
were also unable to meet the VGP discharge requirements. Consistent
with that conclusion, the USCG regulations do not require non-seagoing
vessels, including all Lakers, to meet the numeric discharge standard.
    The proposed rule expands the VGP exemption to any vessel operating
exclusively on the Great Lakes, regardless of build date, because these
vessels share the same challenges in operating BWMS under the
environmental conditions of the Great Lakes. The exemption applies to
vessels on the Great Lakes that are 3,000 GT ITC (1,600 (GRT) if GT ITC
is not assigned) and above, as smaller vessels are exempt under
139.10(d)(2)(i) of the proposed rule as described in VIII.B.1.vii.A.
Vessels Less Than or Equal to 3,000 GT ITC (1,600 GT GRT if GT ITC is
not assigned) and That Do Not Operate Outside the EEZ. For the purposes
of the proposed rule and referred to as ``Great Lakes vessels'' in this
section, the universe of vessels operating exclusively on the Great
Lakes includes two main types of vessels. First, it includes Lakers, as
defined in the VGP, as bulk carriers and other similar vessel types
(e.g., tank barges) operating exclusively on the Laurentian Great
Lakes. Second, it includes any other large vessel, according to the
size threshold, that is 3,000 GT ITC (1,600 GRT if GT ITC is not
assigned) and above, that voyages exclusively on the Great Lakes, such
as ferries. Discussion in this section using the term ``Great Lakes
vessels'' does not include seagoing vessels that operate beyond the
boundary identified in the VGP and continued for the proposed rule,
that being vessels that operate downstream of the waters of the St.
Lawrence River west of a rhumb line drawn from Cap de Rosiers to West
Point, Anticosti Island, and west of a line along 63 W longitude from
Anticosti Island to the north shore of the St. Lawrence River.
    There are approximately 150 U.S.- and Canadian-flagged Lakers, with
approximately 20 of these (mostly Canadian) constructed in 2009 or
later (Marinelog, 2016; Lake Carriers' Association, 2016). The U.S.
Lakers generally are larger than Canadian Lakers, with many of these
vessels being too large to transit through the Welland Canal and the
locks on the St. Lawrence Seaway, thus confining their operations to
the four upper Great Lakes. Of the approximately 60 U.S.-flagged Lakers
operating on the Great Lakes, only about half are small enough to fit
through the Welland Canal; although, from 2015 through 2017, U.S.
Lakers operated only 28 voyages east of the Welland Canal (Lake
Carriers' Association, 2018). Common U.S. Laker routes are ore cargo
runs from Lake Superior to U.S. mills in Indiana, Michigan, and Ohio.
In contrast, 81 of the 84 Canadian Lakers are small enough to pass
through the Welland Canal and locks on the St. Lawrence Seaway (Lake
Carriers' Association, 2016). The U.S.-flagged Lakers that are small
enough to transit the locks on the St. Lawrence Seaway are not designed
to operate in brackish water or saltwater and therefore do not venture
east of Quebec City on the St. Lawrence Seaway. Most Canadian Lakers,
on the other hand, commonly operate in brackish water or saltwater and
their hulls and ballast tanks have corrosion protection that allow them
to transit through the locks on the St. Lawrence Seaway to Canadian
coastal ports and for some of these vessels, even to overseas ports.
However, U.S. and Canadian vessels that operate exclusively on the
Great Lakes share several similar constraints with selection of BWMS
because of the short voyages, low salinity, very cold water, high
dissolved organic carbon content, and low UV transmittance associated
with operation solely within the Great Lakes. Similar vessel design
issues are present for both the existing U.S. and Canadian fleets with
respect to vessel design and operation.
    The Second Circuit Court decision held that EPA acted arbitrarily
and capriciously when it exempted Lakers built before 2009 (``pre-2009
Lakers'') from the numeric technology-based effluent limitations of the
VGP. Nat. Res. Def. Council v. U.S. Envtl. Prot. Agency., 808 F.3d 566
(2d Cir. 2015). The court stated that EPA's decision to exempt Lakers
was based on a flawed record that failed to consider the possibility of
reception facilities, and that the lack of supply of updated shipboard
systems was not a legitimate reason to exempt pre-2009 Lakers as the
purpose of a BAT standard is to force technology to keep pace with
need. Id. at 576. The court cited an EPA SAB Report as support for its
decision that EPA was arbitrary and capricious because the Report did
not declare such treatment impossible. Instead, the SAB concluded ``[a]
variety of environmental (e.g., temperature and salinity), operational
(e.g., ballasting flow rates and holding times), and vessel design
(e.g., ballast volume and unmanned barges) parameters'' should be
considered in determining the treatment standard. Id. at 577. The court
further concluded that EPA failed to conduct an appropriate and
factually-supported cost-analysis which might have shown that the cost
of subjecting pre-2009 Lakers to the 2013 VGP was not unreasonably
high, or, alternatively, that use of reception facilities was
economically achievable. Id.
    To address all of the above issues, EPA assessed the availability
of ballast water treatment technology by evaluating the operational and
technical considerations for installation and operation of a USCG type-
approved BWMS on Great Lakes vessels and alternative approaches that
could be used to develop a specific discharge standard for Great Lakes
vessels. Specifically, EPA assessed:
     The compatibility of type-approved BWMS to meet the
current discharge standard under the environmental conditions of the
Great Lakes;
     the operational and technical challenges of the
installation of type-approved BWMS given the unique structure of Great
Lakes vessels;
     the potential use of current type-approved BWMS on Great
Lakes vessels to meet an alternative standard; and
     the availability of other treatment technologies for Great
Lakes vessels.
    Overall, it was found that ballast water treatment technologies are
not available for Great Lakes vessels at this time because of the
uniqueness of these vessels and the Great Lakes ecosystem. EPA
evaluated the technical reasons why current type-approved BWMS are not
compatible with the environmental conditions of the Great Lakes for
each category of treatment system. The environmental conditions
evaluated include the water's unique ``freshness,'' as opposed to
salinity, the temperature of the water, and the turbidity of the ports.
The operational and technical conditions evaluated include the length
of voyages and its effect on the BWMS holding times required to achieve
the discharge standard and the absence of coated ballast tanks in the
fleet. Table 2 summarizes information on the critical limitations that
each major disinfection

method currently faces for use on Great Lakes vessels.

       Table 2--Limitations of BWMS Disinfection Types for Commercial Vessels Operating on the Great Lakes
----------------------------------------------------------------------------------------------------------------
              BWMS disinfection method                          Limitations for use on the Great Lakes
----------------------------------------------------------------------------------------------------------------
UV..................................................  Areas of the Great Lakes, notably in certain river ports,
                                                       have high turbidity and high dissolved organic carbon
                                                       content such as from tannins and humic acid, which
                                                       inhibits effective UV treatment. In addition, most USCG
                                                       type-approved UV BWMS require holding times of 72 hours,
                                                       however common trade routes within the Great Lakes take
                                                       less than 72 hours with some as little as 2 hours. For
                                                       this reason, vessels would be required to delay cargo
                                                       loading and discharge ballast water until the holding
                                                       time is achieved. Several UV BWMS have since been type-
                                                       approved with holding times as little as 2.5 hours,
                                                       highlighting the advance of technology in beginning to
                                                       overcome some of the operational limitations described.
Electrochlorination.................................  Current USCG type-approved BWMS require a supply of
                                                       saltwater for generating chlorine. Vessels limited to
                                                       freshwater environments would need to prepare and bunker
                                                       a synthetic seawater solution, which would limit cargo
                                                       capacity. Also, chlorine in uncoated ballast tanks
                                                       increases corrosion rates to unacceptable levels for the
                                                       structural integrity of the vessel. Therefore, this
                                                       technology is not technically available.
Chemical Addition...................................  Current USCG type-approved BWMS allow for the addition of
                                                       chemicals. However, none of the U.S. Laker fleet that
                                                       operates exclusively on the Great Lakes have coated
                                                       ballast tanks. This results in an increase in corrosion
                                                       rates if corrosive chemicals, particularly oxidants, are
                                                       used, making this technology technologically unavailable
                                                       and economically unachievable because the vessel would be
                                                       taken out of service.
Ozonation...........................................  Current USCG type-approved BWMS allow for the addition of
                                                       ozone. However, none of the U.S. Laker fleet that
                                                       operates exclusively on the Great Lakes have coated
                                                       ballast tanks. This results in an increase in corrosion
                                                       rates, making this technology technologically unavailable
                                                       and economically unachievable because the vessel would be
                                                       taken out of service.
Deoxygenation.......................................  Current USCG-type-approved BWMS require hold times if
                                                       using a deoxygenation system. Common trade routes for
                                                       commercial vessels within the Great Lakes move ballast
                                                       water from lower ports such as Gary, Burns Harbor,
                                                       Cleveland and Toledo Transit times for these routes are
                                                       less than 72 hours (USACE, 2017). To comply with the
                                                       numeric discharge standard, vessels would need to delay
                                                       cargo loading and discharge of Great Lakes ballast water
                                                       until the holding time is achieved if using a
                                                       deoxygenation system that requires hold times greater
                                                       than transit times. Additionally, deoxygenation can
                                                       result in increased corrosion due to anaerobic
                                                       conditions, and the lack of coated ballast tanks makes
                                                       this technology unavailable.
----------------------------------------------------------------------------------------------------------------
Ref: (Keister and Balog, 1992; Tuthill et al., 1998; Lake Carriers' Association, 2017; American Bureau of
  Shipping, 2015; U.S. Army Corps of Engineers, 2017).

2. Compatibility of BWMS To Meet the Discharge Standard Under Great
Lakes Environmental Conditions
    The environmental conditions of Great Lakes waters present unique
challenges for use of any of the more than 20 USCG type-approved BWMS
on Great Lakes vessels. At this time, none of these systems can meet
the proposed numeric discharge standard given these conditions. Cold
ambient water temperatures on the Great Lakes during the earlier and
later portions of the shipping season are below the testing parameters
of USCG BWMS type-approval testing and, therefore, BWMS have not been
demonstrated to work sufficiently under such conditions to meet the
numeric discharge standard. For example, winter icing conditions of the
exceptionally fresh waters of the Great Lakes impact the ability to
operate a BWMS, such as from ice-plugged BWMS filters. Because of
winter ice on the Lakes, the navigation season is not usually year-
round. The Soo Locks and Welland Canal close from mid-January to late
March, when most vessels are laid up for maintenance. However, cold
temperature and icing conditions can persist into the Spring. Water
temperatures in the Great Lakes during the shipping season can be as
low as 0 [deg]C. Lake Erie is below 5 [deg]C for five months a year,
lakes Michigan and Huron for almost half the year, and on Lake Superior
5 [deg]C might not be reached until June and be back below by November.
Because of the pressure drop across filters, freezing can occur at
temperatures above 0 [deg]C. Several USCG BWMS are not approved for
operation at a water temperature of less than 5 [deg]C (Monroy et al.,
2017; USCG, 2013).
    In addition to cold temperatures, the fresh water of the Great
Lakes contains extremely low salinity. USCG type-approval testing for
freshwater allows a salinity as low as 0.9 practical salinity units
(psu), but Great Lakes water, especially Lake Superior, has a much
lower salinity of approximately 0.063 ppt. Several USCG type-approved
BWMS require a higher salinity than is found in the Great Lakes. For
example, electrochlorination systems were designed to use marine water
to provide a chloride source to generate chlorine. The freshwater of
the Great Lakes does not provide such a source of saline water,
requiring a Laker using such a system to bunker saltwater in an unused
holding tank or ballast tank and then use this saltwater to generate
chlorine for disinfection while ballasting/deballasting within the
Great Lakes. EPA analysis demonstrates that this technology is not
practicable and is presently unavailable.
    Turbidity, excessive levels of tannins, and filamentous bacteria in
some areas of the Great Lakes can inhibit the ability of USCG type-
approved BWMS to meet the numeric discharge standard. Several river
ports in the Great Lakes contain highly turbid water where ballast
water uptake occurs. Typical levels of total suspended solids (TSS)
found in U.S. Great Lakes port waters range from 400 mg/L in the Rouge
River in Detroit, MI, to 1,000 mg/L in the Cuyahoga River in Cleveland,
OH. These levels are much higher than those required for USCG type-
approval testing. Similarly, areas of the Great Lakes contain excessive
levels of tannins that present a challenge to remove with conventional
BWMS filters. Turbidity and excessive levels of tannins in some Great
Lakes harbors may significantly reduce filter efficiency and UV light
transmittance, creating a situation where both USCG and IMO type-
approved filtration and UV BWMS cannot achieve the numeric discharge
standard. While these circumstances can also occur in coastal ports, it
is expected that many seagoing vessels could use operational practices
not available to vessels operating on the

Great Lakes, such as exchange of turbid harbor water for less turbid
offshore water, which could be treated effectively by the BWMS. In
addition, the Great Lakes contains significant quantities of
filamentous bacteria that have been shown to cause significant clogging
problems with BWMS filters.
    Other ballast water treatment technologies are under development,
such as membrane filtration, magnetic separation with filtration, and
pasteurization. However, no such systems to-date have been demonstrated
as effective ballast water treatment to the satisfaction of the USCG
for type-approval. Even if these technologies did gain USCG type-
approval, there are challenges in applying their use on the Great
Lakes. For example, a pasteurization system is designed for large long-
haul vessels and requires multiple voyage days to reach pasteurization
temperatures and as such would be limited in its use on the Great Lakes
because of the many short voyages for vessels in the Great Lakes. As
for filtration and magnetic separation with filtration, freshwater
organisms must respond to flocculating agents like that of marine
organisms to be effectively removed by these technologies.
Unfortunately, to date, this ability has not been shown to exist
(ClearBallast, 2012; Bawat, 2016; Voutchkov, 2013).
3. Technical Challenges of the Use of USCG Type-Approved BWMS on Great
Lakes Vessels
    There are numerous, costly technical challenges to implementing
BWMS on Great Lakes vessels. If USCG type-approved systems were
installed on Great Lakes vessels to meet the discharge standard, some
environmental benefit would be provided from the installation and
operation of these type-approved systems; however, disproportionate
costs would be incurred by this vessel community due to these technical
challenges and the discharge standard would not be met given the known
environmental challenges. For example, for some U.S. Lakers,
particularly those bulk carriers that are more than 50 years old that
have been uniquely constructed and converted over the decades, the cost
of achieving the standard would be similar to or maybe even exceed the
cost of vessel replacement. EPA evaluated the technical considerations
relevant to the installation and operation of BWMS on Great Lakes
vessels including vessel size, ballasting volumes and flow rates,
ballast pump and piping configurations, space considerations,
electrical requirements and corrosion issues. It is important to point
out there are significant differences in the construction, size,
propulsion configurations, electrical systems and capabilities, cargo
off-loading equipment, ballast water movement, and other design aspects
between individual vessels. These differences require a vessel-specific
analysis to determine the technological availability and optimal method
for installing and operating a BWMS. In order to consider these
differences, EPA grouped the U.S. Lakers into subcategories based on
their characteristics (Table 3).

                                                                          Table 3--Subcategories of U.S. Laker Vessels
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                      Number of U.S.                                                                                Ballast volume      Ballast pumping
             Subcategory                Lakers \a\          Build dates                 Length           Number ballast tanks    Number ballast pumps          (gallons)            rate (GPM)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Large Capacity Lakers...............              14  1972-1981..............  858-1,000-ft...........  14-22.................  4-36..................     9,414,132-16,406,561    20,000-79,800
Converted bulkers to self-unloading               18  1906-1959, converted     437-806 ft.............  11-22.................  2-4 pumps/Engine Room      1,411,655-12,283,281    14,000-64,800
 ships, includes barges.                               1958-2014.                                                                (E.R).
Newer build--manifold ballast system              17  1942 (1991)-2012.......  519-770................  13-21.................  2 pumps/E.R...........      2,121,000-7,851,433    17,400-40,000
Purpose built barge.................               6  1941 (1998)-2009.......  310-460................  6 including FP-17.....  1-4 pump..............        638,274-2,045,053     1,000-10,000
                                     -----------------------------------------------------------------------------------------------------------------------------------------------------------
    Total...........................              57  .......................  .......................  ......................  ......................  .......................  ...............
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Lake Carriers' Association, 2016. Total number of vessels carrying ballast water, including articulated tug-barges. Does not include tugboats since these vessels do not typically discharge
  ballast water. Does not include barges A-410 or 397 because they do not carry ballast water.

    The capacity of the commercially available, type-approved BWMS
selected for a Great Lakes vessel must be compatible with the ballast
needs of the vessels, particularly the ballasting rate of the ballast
pumps. Particularly for Lakers, high ballasting capacities and flow
rates limit the options for selection of some commercially available
BWMS. The maximum capacity of commercially available filtration and UV
BWMS is 6,000 m\3\/hr. U.S. Lakers have ballasting capacities as high
as 18,000 m\3\/hr and therefore multiple filtration and UV BWMS would
be required to accommodate these rates. In the analysis, EPA considered
installation of multiple BWMS on a vessel as a means to meet the
discharge standard. For example, the large capacity vessels may have a
ballast water system configuration that includes individual sea chests,
ballast pumps and ballast piping for each individual ballast tank. It
can have one or two individual ballast pumps and piping per ballast
tank. Four of the U.S.-flagged 1,000-foot Lakers have 18 separate
ballast pumps and piping, and one 1,000-foot Laker (i.e., Stewart J.
Cort) has 36 deep well ballast pumps. The M/V Indiana Harbor uses four
main ballast pumps (two port and two starboard) to pump a total of
11,810 m\3\/hr of ballast water. For this Laker, two BWMS would have to
be installed (one port and one starboard), each with a capacity to
treat at least 6,000 m\3\/hr. The M/V Paul R. Tregurtha that has a
total ballasting capacity of 18,120 m\3\/hr and uses 18 separate
ballast pumps and tanks, 18 individual BWMS would be needed, each with
a capacity to treat at least 1,100 m\3\/hr or the entire ship would
need to be re-piped at significant cost and downtime.
    Great Lakes vessels are designed to maximize cargo capacity and,
therefore, have little to no space available in the engine room or
around the self-unloading equipment for a BWMS. Space could be created
from existing ballast tanks or cargo holds, although this directly
impacts the vessel's cargo hauling capacity and therefore economic
viability. Again, EPA analysis included the cost and lost revenue
implications of lost cargo space or hauling capacity. Converting
ballast tanks to accommodate a BWMS may likely also impact vessel
stability and requires a detailed vessel-specific analysis by a marine
engineer, naval architect, or similar expert to assess viability of
such installation and operation.
    Electrical capacity on Great Lakes vessels has been sized to
accommodate the loading and unloading equipment

that is operational while the vessel is in port. Self-unloading
equipment would have to be operated at the same time as the BWMS and,
as currently designed, many of these vessels lack electrical capacity
for high electrical demand BWMS such as filtration and UV disinfection.
Thus, additional electrical generators would be required for operation
of the BWMS.
    The U.S. Laker fleet has another significant issue with respect to
selection of a BWMS: Currently all vessels have uncoated steel ballast
tanks. In this manner, U.S. Lakers differ from the Canadian Laker fleet
and the oceangoing vessels. This design works for the fleet because the
waters of the Great Lakes is so fresh that corrosion is not a concern
as these vessels do not operate in brackish or ocean saline waters,
where such coating is necessary. Any BWMS that generates chlorine for
disinfection by electrochlorination or that doses corrosive treatment
chemicals into the ballast water is commercially available in the
capacities needed for Lakers and have a lower electrical demand.
However, these systems would significantly increase the corrosion rates
in the uncoated ballast tanks of existing U.S. Lakers. Coating ballast
tanks on existing U.S. Lakers can be done; however, the costs to do so
are prohibitively high, and the vessel would require dry-docking for at
least a year, a significant lost revenue period, to clean, grind, weld
and coat the inside of ballast tanks.
    With regards to operational considerations, many inter-lake voyages
are shorter than 72 hours (and even as short as 2 hours) and, in these
cases, would not provide the required residence time for BWMS
technologies that require extended holding times to be effective such
as chemical addition, deoxygenation, or UV for many of the USCG type-
approved UV-based BWMS U.S. Army Corps of Engineers, 2017). Increasing
voyage times by slow steaming to meet minimum hold times for certain
BWMS may be possible, but the impact to vessel operations would need to
be accounted for in assessing the cost of operation of such systems,
including impacts to shippers. In fact, the entire supply chain would
be impacted by extra voyage times.
4. Testing of BWMS on the Great Lakes
    Testing of various BWMS and their components using ambient Great
Lakes water has been conducted at the Great Ships Initiative (GSI) \3\
Land-Based Research, Development, Testing and Evaluation Facility
located in Duluth-Superior Harbor on Lake Superior. GSI provides
freshwater ballast treatment evaluation at three scales--bench, land-
based, and on-board ship. GSI, because of its location, uses freshwater
from the Great Lakes to evaluate performance of BWMS at removing Great
Lakes organisms within the size ranges required in the VGP and USCG
discharge standard (using the ETV Protocol) and the IMO protocols for
approval of ballast water management systems.
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    \3\ The Great Ships Initiative, which commented in 2005, is an
industry led collaborative effort to address problems of ship-
mediated invasive species in the Great Lakes Saint Lawrence Seaway
System.
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    During August through October 2009, the GSI conducted land-based
type-approval testing in accordance with IMO G8 guidelines on the
Siemens SiCURE\TM\ BWMS (Great Ships Initiative, 2010). The Siemens
SiCURE\TM\ BWMS is based on filtration and side-stream
electrochlorination of seawater to produce hypochlorite, which is then
injected into the incoming ballast water. The results showed that the
BWMS functioned properly and was effective at reducing live organism in
the regulated size classes at levels below the IMO ballast water
performance standard (i.e., Regulation D-2 of the BWM Convention) after
the five-day holding time in the fresh water ambient conditions of
Duluth-Superior Harbor that had been augmented to achieve IMO challenge
conditions. Target bacteria Escherichia coli and intestinal enterococci
were also discharged at levels below the numeric discharge standard
after the 5-day holding time. However, as mentioned previously,
electrochlorination requires a bunker of synthetic seawater solution
for generating chlorine and can corrode the uncoated tanks of U.S.
Lakers.
    During September and October 2014, GSI conducted land-based testing
of three prototype versions of the chlorine addition-based JFE
BallastAce[supreg] BWMS to evaluate not only the biological and
chemical performance against the USCG ballast water discharge standard,
but also the total residual oxidant (TRO) of the chemical system (Great
Ships Initiative, 2015). Only the JFE BallastAce BWMS operated using
the TG BallastCleaner[supreg] at the higher target TRO concentration of
approximately 20 mg/L was able to achieve the USCG discharge standard
for living organisms although these concentrations did result in
elevated levels of disinfection by-products. This system type can also
corrode the uncoated tanks of U.S. Lakers.
    Using filtration and UV BWMS can avoid the corrosion concerns.
However, testing of the filtration and UV Alfa Laval
PureBallast[supreg] Version 3 BWMS in Duluth-Superior Harbor in 2010
using ambient Great Lakes water failed to achieve the USCG and IMO
numeric discharge standards in the two regulated size classes, even
though intake organism densities in the Great Lakes harbor water were
well below IMO and EPA's ETV Protocol challenge conditions. GSI
concluded that the system failed to achieve the USCG numeric discharge
standard due to the filters' ineffectiveness at removing filamentous
algal forms in Duluth-Superior Harbor water. In addition, very low
ambient UV transmittance of Duluth-Superior Harbor water (naturally
caused by tannins) at the time of testing likely inhibited the
effectiveness of the UV disinfection unit (Great Ships Initiative,
2011).
5. Consideration of a Type-Approved BWMS Equipment Requirement
    EPA also considered an option in which Great Lakes vessels would be
required to install, operate, and maintain a USCG type-approved BWMS
but not have to meet a discharge standard. This option assumes that the
structural challenges of installing, operating and maintaining a USCG
type-approved BWMS, particularly for Lakers, could be overcome and
would be available and economically achievable. Specifically,
consideration was given to an equipment carriage requirement in which a
Great Lakes vessel would be required to install, operate and maintain
(i.e., carry) a USCG type-approved BWMS, but would not be required to
meet a numeric discharge standard acknowledging the unique Great Lakes
environmental conditions and vessel voyage patterns. The advantage to
this approach is that, although treatment may not be able to
consistently meet the discharge standard due to the Great Lakes
conditions, some reduction in the discharge of ANS would likely occur.
    EPA is not proposing this approach because such a requirement to
install a current BWMS without addressing the incompatibility with the
environment conditions of the Great Lakes or the technical equipment
considerations does not reflect BAT. There is significant uncertainty
as to the operational functionality of BWMS in the Great Lakes,
particularly when operating conditions extend outside the design
parameters of any available treatment systems. For example, given that
U.S. Lakers have uncoated ballast tanks, it is expected that many
vessel

owners would opt for UV-based BWMS to meet such an equipment standard.
As shown in the GSI testing of the filtration and UV Alfa Laval
PureBallast[supreg] Version 3 BWMS in Duluth-Superior Harbor in 2010
using ambient Great Lakes water, the system failed to achieve the USCG
and IMO numeric discharge standards in the two regulated size classes
due to the filters' ineffectiveness at removing filamentous algal forms
and very low ambient UV transmittance of Duluth-Superior Harbor water
(naturally caused by tannins) which likely inhibited the effectiveness
of the UV disinfection unit (Great Ships Initiative, 2011). All of the
other USCG type-approved BWMS systems were evaluated for a carriage
requirement and it was found that these other systems face operational
challenges similar to the UV system. Clogged filters in turbid ports
and under icing conditions could significantly impact vessel
operations, even halt operations, if the BWMS ceased working.
    In addition, EPA determined that such an equipment requirement does
not meet the ``economically achievable'' portion of the BAT requirement
for this proposed rule. An equipment standard may require a costly
installation and maintenance of a system only to be faced with an
imperative for the vessel owner to modify the system to be able to
operate the vessel as necessary or even to replace the system with
newer technology in the near future. Vessels that operate exclusively
in the Great Lakes have a significant lifespan as compared to seagoing
vessels due to the freshwater conditions of the Great Lakes.
Installation of a BWMS on a Laker, for example, would be based on the
life of the BWMS, not the life of the vessel. However, retrofitting a
Laker for BWMS is a significantly costly endeavor, particularly for
U.S. owned vessels, which as Jones Act vessels, are required to be
built in U.S. shipyards or pay a 50 percent U.S. tax for repairs done
in a foreign shipyard. For this reason, if a Laker vessel was
reconfigured to fit a current USCG type-approved system, retrofitting
that same vessel for a newer BWMS that may require a different
configuration may be cost prohibitive and impede the deployment of more
effective technologies in the future.
    There are insufficient data at this time to establish an
alternative equipment standard for Great Lakes vessels that is
technically available and economically achievable. EPA has determined
that implementing a carriage standard may be short-sighted and costly
to the vessel community with an unknown level of effectiveness to
reduce ANS discharges in the Great Lakes. Additional research is needed
before EPA could identify a standard that reasonably satisfies the
statutory BAT requirements consistent with Section 903(g)(2)(B)(viii)
of the VIDA which establishes a program for EPA, in collaboration with
other federal agencies, to research and develop BWMS for use by vessels
operating on the Great Lakes.
6. The Availability of Alternative Approaches for Great Lakes Vessels
    EPA assessed whether technologies are available other than USCG
type-approved BWMS or other BMPs that could be used for Great Lakes
vessels. The IMO has approved more than 60 commercially available BWMS.
However, as discussed earlier, the IMO type-approval process does not
meet EPA and USCG QA/QC criteria and as such, vendors must obtain USCG
type-approval for any BWMS to be used in the U.S. beyond the five-year
bridge to compliance during which time an IMO type-approved and USCG
recognized alternate management system (AMS) may be used. EPA also
evaluated the potential for technology transfer from other industries.
However, adapting land-based technology for use onboard a vessel
entails different criteria and challenges, such as acceptable shipboard
materials, safety, hazardous spaces, and vessel stability
considerations. For these reasons, no similar technologies have been
identified for evaluation against this vessel-based standard, which
accounts for vessel design, stability, and safety at sea.
    Information on technologies and practices other than type-approved
systems is limited but EPA did evaluate alternative options for Great
Lakes vessels. The three alternatives considered include (1) use of
filtration only, (2) open lake exchange of highly turbid water taken up
in river ports, and (3) exempting the use of a ballast water treatment
system for certain voyages when the operational parameters of an
installed BWMS cannot be met.
i. Filtration
    Some research has explored the potential of using filtration-only
to treat ballast water; rather than the more common filtration coupled
with disinfection. The Great Ships Initiative (GSI) evaluated the
performance of eight commercially available filter systems which
covered a range of technologies and nominal pore sizes using ambient
Duluth-Superior Harbor water and amended intake water to achieve a
minimum concentration of 24 mg/L total suspended solids (TSS). Analysis
of the GSI filter system performance data shows that regardless of
filter pore size, no system can achieve the IMO or USCG numeric
discharge standards. According to GSI, the soft-bodied microzooplankton
which make up most zooplankton in Duluth-Superior Harbor that straddle
the 50[micro]m size range were the most difficult to remove by
filtration. Macrozooplankton, which are the least numerous in Duluth-
Superior Harbor, were the easiest to remove by filtration (Great Ships
Initiative, 2014).
    GSI's findings are consistent with other researchers who studied
the performance of BWMS filtration systems in the Great Lakes. In 2012,
Briski et al. (2014) collected before and after filtration samples from
a 40 [micro]m BWMS filtration unit installed on the M/V Richelieu, a
729-foot bulk carrier that typically operates in the Great Lakes and
the Atlantic coast of North America. The three shipboard trials
conducted dock side in Quebec City, Quebec and Sarnia, Ontario, and at
anchor in Thunder Bay, Ontario, found filtration significantly reduced
abundance of copepods and cladocerans, but not of juvenile dreissenid
veligers and rotifers. Briski et al. concluded that filtration alters
the relative abundance of zooplankton, but filtration alone does not
reduce introduction risk of any taxonomic group due to the small
juvenile stages and dormant eggs which can be passed through BWMS
filters (Briski et al., 2014).
    EPA determined that filtration alone is not sufficient to meet the
numeric discharge standard and there is neither sufficient data at this
time to establish an alternative standard for Great Lakes vessels using
filtration that would reduce ANS discharge at a known effectiveness
level nor information on the practical installation and operation,
including cost, of such a filtration alternative.
ii. Open Lake Exchange
    As detailed in the sections above, using a UV-based BWMS eliminates
the corrosion concerns associated with use of other types of BWMS that
rely on oxidizing chemical addition; however, Great Lakes harbors with
high sediment loads and excessive levels of tannins, particularly in
river ports, significantly reduce UV light transmittance and prevent
UV-based BWMS from providing treatment necessary to achieve the
discharge standard. EPA considered a practice in which a vessel leaving
a turbid port could conduct an exchange after leaving the port (e.g.,
mid-lake) to flush the turbid water, then use a type-approved BWMS to
treat the mid-lake water and any residual ballast

water and sediments. However, EPA determined that there is insufficient
data to support the effectiveness of such an alternative practice in
reducing ANS discharges in the Great Lakes. In addition, more
information is needed to ensure any unintended consequences are avoided
that could result from transferring river sediment to an open-lake
environment. Importantly, it is also not clear that Lakers, which are
not built to seagoing standards, would be able to safely conduct open-
lake exchange due to concerns regarding vessel stability and increased
stress during the ballast exchange process.
iii. Voyage-Specific Exemptions
    EPA also considered the option of requiring Great Lakes vessels to
meet the numeric discharge standard using a type-approved BWMS, but to
allow the vessel to not have to use the system during certain voyages
when the vessel is operating outside the design range of the system.
For example, the short voyage times of many Lakers inhibit the use of
UV disinfection, deoxygenation, or chemical treatment of many BWMS
which require a specific holding time (e.g., 72-hour hold time after
treatment). An exemption could be given in advance for specific voyages
that do not allow sufficient hold time as specified for the BWMS. Short
voyages, particularly intra-lake routes, likely pose less of a risk of
ballast water spread of ANS, therefore the use of BWMS could be
prioritized for inter-lake voyages. In addition, incentives could be
explored that encourage vessel owners to modify their voyage pattern to
accommodate sufficient holding time for inter-lake voyages.
    The same principle could be applied for voyages during cold months
when icing condition occur, or the ambient water temperatures fall
below the parameters of the BWMS and impede its operation. An exemption
could be given in advance for voyages when these temperatures occur
during the shipping season. In addition, there may be less biological
activity during the colder months of the year and ANS spread could pose
less of a risk. This exemption would allow the operation of a BWMS to
be prioritized during increased temperatures when risk increases.
    In principle, these exemptions are practical approaches that could
be beneficial to allow the prioritization of the operation of BWMS when
there is a possibility of more ANS discharges, such as during inter-
lake voyages or higher temperatures. However, insufficient data exist
to support the imposition of an alternative standard for Great Lakes
vessels in the proposed rule and also, it is not clear how such an
inconsistent management regime would be evaluated for compliance with
the standards and enforcement purposes. Additional research is needed
to determine the feasibility of such alternatives and the effective
reduction of ANS from these practices. For example, one consideration
to address is if the BWMS is only operating during certain voyages, the
untreated ballast water and sediments in the tank may reduce the BWMS
effectiveness during times when the system is required to be operated.
In addition, implementation of these exemptions is contingent on the
fact that the structural challenges can be overcome to install and
operate a BWMS on Lakers as already described. If these structural
challenges can be overcome, these exemptions could play a critical role
in advancing the use of BWMS on the Great Lakes vessels during times of
prioritized risk.
    EPA determined that these three alternatives are not sufficient to
meet the numeric discharge standard and there is insufficient data at
this time to establish an alternative standard or requirement for Great
Lakes vessels that would reduce ANS discharges at a known effectiveness
level. Additional research is needed to explore these options. Congress
clearly acknowledged that there are not currently practicable ballast
water management solutions for Lakers and established the Great Lakes
and Lake Champlain Invasive Species Program under the VIDA for EPA to
develop such solutions.
7. Conclusion
    To date, no technologies or management practices beyond those
identified previously in the VGP and USCG regulations have been
demonstrated to be available and implementable solutions to address
ballast water discharges from the universe of vessels that operate
exclusively on the Great Lakes. In November 2016, the Great Ships
Initiative (GSI) published a briefing paper highlighting the problem
and need for pure freshwater testing in the Great Lakes stating that
USCG and IMO require, as a part of their testing protocols, ``challenge
conditions for organism sizes and densities that are not a good fit for
native (Great Lakes) assemblages'' (Great Ships Initiative, 2016).
While more research is conducted as authorized by the VIDA, EPA is
proposing in this rule to continue to exempt Lakers as well as other
vessels that operate exclusively in the Great Lakes from the numeric
discharge standard.
    EPA believes it is important that new technologies and practices be
identified that reduce the discharge of non-indigenous species
specifically from Great Lakes vessels and meet the BAT standard. To
support the goal of identifying those technologies, EPA is considering
whether to require owners/operators of Great Lakes vessels to perform a
self-assessment either individually or in partnership with other vessel