[Insert Company Letterhead with contact information]
[Insert Date]
Mr. Donald Tuxill
Section Chief, Nonpoint Source Management and General Permit Section
New York State Department of Environmental Conservation
Division of Water, 4th Floor
625 Broadway
Albany, New York12233-3505
Subject : Extension Request for Condition 3of New York’s Certification of the Vessel General Permit (VGP) for Discharges Incidental to the Normal Operation of Vessels.
I am writing on behalf of [Company Name] of which I am [Title of Person Signing the Request]to request that the implementation date for Condition 3 of the New York Certification captioned above be extended until the date of expiration of the current VGP, i.e.December 19, 2013. The request is made for all of our vessels constructed on or after January 1, 2013that may operate in New York waters and file a Notice of Intent (NOI) under the VGP.
You will find below a summary of background information upon which we have based this request, as well as the required justifications for being granted an extension of time (as per the three criteria listed in Condition 3).
Background
Vessel ballast water requirements are addressed by the Environmental Protection Agency (EPA)’s Vessel General Permit for Discharges Incidental to the Normal Operation of Vessels (VGP), which became effective on December 19, 2008. New York State has introduced additional permit conditions with standards that are far more stringent than that those (referred to as “IMO D2 Standard) specified in the International Convention for the Control and management of Ship’s Ballast Water and Sediments adopted by the International Maritime Organization (IMO) in 2004. More specifically,under Condition 2 of the New York certification, existing vessels operating in the State’s waters must comply with a discharge standard that is 100 times more stringent than IMO D2 Standard. Although this standard was originally scheduled to come into effect on January 1, 2012, the unavailability of the technology necessary to meet such a standard led the New York Department of Environmental Conservation (DEC) to extend the said deadline to August 1, 2013.
Meanwhile, Condition 3 of the New York Certification, which applies to all vessels constructed on or after January 1, 2013 operating in the State’s waters, requires the installation of ballast water treatment systems that can achieve a discharge standard that is 1000 times more stringent than IMO D2 Standard. Condition 3 also stipulates that the January 1, 2013 implementation date may be extended, provided that any request in this respect states and demonstrates that:
“(1) there is a shortage in supply of the technology necessary to meet the limits set forth in this certification or other factor related to the availability and installation of technology beyond the vessel owner/operator’s control, that delays the technology being available and installed in time to comply with this standard;
(2) the unavailability of supply is the only reason the January 1, 2013 date cannot be met; and
(3) the vessel has exhausted all other options to comply with the standard.”
It should be noted that although the original date for requesting an extension of the Condition 3 implementation date was June 30, 2011, the New York DEC subsequently moved this back to September 30, 2011, in order to provide interested parties with sufficient time to analyze a number of highly relevant scientific studies that were published this summer. The first of these studies, which was conducted by the EPA’s Science Advisory Board (SAB), evaluated the status of current and upcoming ballast water treatment technologies; while the second study, which was carried out by the National Academy of Sciences (NAS) National Research Council (NRC), addressed numeric standards for ballast water discharges. Both studies were jointly commissioned by the USCG and the EPAwith the expectation that the conclusions and recommendations arising therefrom would help finalize the USCG’s ruling[1] and contribute to the development of the next edition of the EPA’s VGP.
The outcomes of the two reports also have a direct bearing on the three justifications for extending the January 1, 2013 implementation date of Condition 3 of the New York Certification, which are discussed in more detail hereunder:
1)There is a shortage in supply of the technology necessary to meet the Condition 3 discharge requirements.
The obstacle to compliance with Condition 3 is not so much a “shortage” in the supply of the necessary technology to meet a 1000 times IMO discharge standard, but the total unavailability of such technology both now and for the foreseeable future.
This is clearly reflected in the SAB’s final report[2], which confirmsoverwhelming scientific consensus[3] that: (1) there is currently no technology available that has been demonstrated to meet the Condition 3 discharge standards and (2) such technology will not be available in the near future.
The SABpanel based this conclusion on its assessment of 51 existing or developmental ballast water management systems, which found that:
- None of the existing treatment technologiescan meet a standard that is 100 or 1000 times more stringent than the USCG Phase I/IMO D2 Standard:“it is clear that while five types of BWMS are able to reach IMO D-2/Phase 1, none of the systems evaluated by the Panel performed at 100 times or 1000 times the Phase 1 standard”.(See SAB Report, p.4).
- Wholly new systems need to be developed to meet standards that are 100 or 1000 times more stringent than Phase 1: “Reaching the Phase 2 standard, or even 100x IMO D-2/ Phase1, would require wholly new treatment systems. (…)These new approaches likely will achieve higher performance, but will require time to develop and test in order to determine their practicality and cost.” (See SAB Report, p.5).
It is also important to note that any effort to develop the required ballast water treatment systems must be accompanied by an appropriate method of verifying their performance. Indeed, the need to concomitantly develop adequate sampling protocols to test whether ballast water discharges meet the required standards, either during the approval phase or when measuring the compliance of individual ships, has been highlighted in several scientific studies and reaffirmed in the NRC study mentioned above[4]. In this respect, the SAB reporthighlights the lack of standardized testing and verification protocols for discharge concentrations and clearly states that performance standards claimed by manufacturers need to be verified by independent specialists:
To ensure that the performance of ballast water treatment systems is objectively and thoroughly evaluated during verification testing, experienced specialists in an independent testing organization should conduct the tests (as required in the Protocol), rather than the system manufacturers. (See SAB Report, p. 54)
If no tested and approved treatment technology that is capable of meeting the Condition 2 standards is available by January 2012 – and this is the reason why the deadline was extended to August 2013 - it is even more unlikely (if not altogether impossible) that a tested and approved treatment technology that is capable of meeting Condition 3 –which is 10 times more stringent than Condition 2 - can be met by January 2013. This becomes even clearer when one considers that entirelynew treatment systems and harmonized verification protocols still need to be developed for Condition 2 as well as for Condition 3.
2)The unavailability of supply is the only reason the January 1, 2013 date cannot be met.
The unavailability (both now and for the foreseeable future) of the requiredtreatment technology is clearly the only obstacle to compliance with the Condition 3 requirements.A ship constructed in January 2013 (and even afterwards) will not be able to meet the Condition 3 requirementsbecause design plans for new ships must be developed a minimum average of two to three years (depending on the ship’s type) ahead of final delivery. Even ifa tested and approved treatment system meeting the Condition 3 requirements were to be available before January 2013, the necessary delay between the process of designing the ship and its final delivery by the shipyard would make it impossible for such a ship to comply with the Condition 3 requirements.
It is also important to note that the unavailability of approved treatment systems capable of meeting the New York requirements creates a high degree of commercial uncertainty for shipowners and operators. Indeed, as the situation currently stands, neither existing nor new ships will be able to serve ports in New York –- or transit the Saint Lawrence Seaway – as of the Condition 2 and Condition 3 implementation dates. In view of these anticipated negative commercial impacts,the sole reason for which we cannot meet the January 1, 2013 deadline is the unavailability of the required ballast water treatment systems.
3)The vessel has exhausted all other options for complying with the standards.
As mentioned above, vessel owners/operatorshave nomeans tocomply with the Condition 3 discharge standardsbecauseonboard treatment technologycapable of meeting such standardsdoes not exist.
It is worth noting that the SAB panel has assessed a number of alternatives to onboard ballast water treatment technology. Although one such alternative is the use of port reception facilities with ballast water treated on shore, this option would only be available to ships calling at ports equipped with such reception facilities. As for other alternatives, the SAB report concluded that insufficient attentionhas been given to practices and technologies other than onboard ballast water treatments, including managing ballast uptake in order to reduce the presence of invasive species, and mitigating invasion risks through operational adjustments, changes in ship design and other methods. The SAB panel also recommended that a comprehensive analysis be conducted to compare the relative benefits of using shipboard systems versus onshore reception facilities to manage ballast water, with particular attention to the biological effectiveness, logistical and operational challenges, safety considerations, and costs associated with each.
In short, neither onboard treatment technology nor alternative compliance options exist to enable vessel owners/operators to comply with the Condition 3 discharge standards.
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In summary, the unavailability of ballast water treatment systems that are capable of meeting theCondition 3 discharge standards has placed this companyin a situation that is entirely beyond its control,and as a result of which it cannotcomply with New York’s Certification requirements for new ships by the required deadline.
In view of the above,wherebyrespectfully request an extension of the implementation date of Condition 3 of the New York Permit Certification, at leastuntilthe expiration of the current VGP, i.e. 19 December 2013.
Please do not hesitate to contact the undersigned should you require any additional information.
Sincerelyyours,
[Name of Signing Official, title, Company, phone number and email address]
1
[1]In 2009, the U.S. Coast Guard (USCG) introduced a phase-in schedule as part of its effort to revise its ballast water management rules and establish numeric concentration-based limits for ballast water organisms. Under Phase 1 of the proposed schedule, existing and new ships - constructed on or after January 2012 - must comply with a ballast water discharge standard that is based on the same concentration limits as those required by the IMO. This would be followed by Phase 2, under which ships may be subject to a standard equivalent to 1000 times Phase 1’s standard, subject to practicability reviews findings. These reviews are to be undertaken by the USCG to determine whether the performance standard set in Phase 2 could practicably be implemented and if the treatment technology can achieve such standard. Although the final rule has not been yet been published at the time of writing this letter, such publication is expected to take place sometime this fall.
[2] “Efficacy of Ballast Water Treatment Systems: a Report by the EPA Science Advisory Board”. July 12, 2011. A copy of the final report is available on the EPA’s website”:
[3] Wisconsin has recently decided, based in part on analysis prepared by the Great Lakes Ballast Water Collaborative, that a 100X IMO standard could not be met with currently available technology. See Wisconsin Department of Natural Resources, Wisconsin Ballast Water Treatment Feasibility Determination, December 14, 2010, p.3. A copy of the Wisconsin feasibility determination may be obtained at: The Wisconsin determination was based in large part on the expert scientific consensus developed through the Great Lakes Ballast Water Collaborative, in particular the report summarizing the Collaborative’s July 20-21, 2010, meeting in Duluth, Minnesota (“Duluth Report”). Copies of the Great Lakes Ballast Water Collaborative Reports may be obtained at:
[4] Committee on Assessing Numeric Limits for Living Organisms in Ballast Water, National Research Council, Assessing the Relationship Between Propagule Pressure and Invasion Risk in Ballast Water (2011, prepublication copy). The NRC Report may be found at