Written Testimony
to the
Senate Subcommittee on Fisheries, Wildlife
and Water
Submitted to the Record of the
June 17, 2003 Hearing on
The National Aquatic Invasive Species Act of
2003
Submitted by:
Kathy J. Metcalf
Director, Maritime Affairs
Chamber of Shipping of America
1730 M Street, NW
Suite 407
Washington, DC 20036
The Chamber of Shipping of America (CSA) appreciates the opportunity to
provide written testimony to the Senate Subcommittee on Fisheries, Wildlife,
and Water to the record of the subcommittee’s June 17, 2003 hearing on the
National Aquatic Invasive Species Act of 2003 (S. 525). Our testimony focuses on potential
strategies relative to marine vessels entering US waters from outside the
exclusive economic zone (EEZ).
CSA
represents 23 U.S. based companies that own, operate or charter oceangoing
tankers, container ships, and other merchant vessels engaged in both the
domestic and international trades and represents other entities that maintain a
commercial interest in the operation of such oceangoing vessels.
CSA
has been involved in the issue of aquatic invasive species for over a decade at
the international, national and sub-national (local and regional) levels. We have served as an industry advisor to the
US delegation to the International Maritime Organization’s (IMO) Marine
Environment Protection Committee working closely with the US Coast Guard,
Environmental Protection Agency and other federal agencies in the development
of the US position at the IMO. We have
also worked with our international maritime trade association colleagues in
identifying practical and environmentally beneficial solutions to the
continuing problem of aquatic invasive species transportation in the ballast
water of marine vessels.
CSA strongly supports the implementation of a
mandatory national ballast water management program and believes that S. 525 is
an excellent framework within which to design such a system with due regard to
environmental protection, technological feasibility and the realities of the
marine transportation industry. We do
have some concerns with specific aspects of the bill and would be pleased to
discuss these in detail with you at your convenience. However, the majority of these specific details fall within the
purview of several broad categories which we discuss in further detail
below. In addition to these
discussions, we close our comments with responses to particular issues raised
at the June 17, 2003 hearing. We hope
you find this information valuable and informative as we all move forward
together in meeting this environmental challenge.
CSA has identified four key issues associated with
the creation and implementation of a mandatory national ballast water
management program in the United States.
The four key issues explained below are seen as the most critical
elements to a practical and environmentally protective national ballast water
management program which minimizes the disruption to the free flow of maritime
commerce.
For over a decade, the challenges associated with the
transport of aquatic nuisance species in ballast water have been
recognized. During this time, a number
of technology developers have approached various segments of the industry with
the ultimate goal of installing these technologies aboard vessels for “real
world” testing. As a result of the
significant financial investment required for transition from concept to
laboratory to pilot plant to full shipboard installation (conservatively
estimated at US $1,000,000 minimum), stakeholders in these discussions have
asked the obvious question as to whether a particular technology could be
expected to meet future legal requirements.
In the absence of any performance standards, industry and technology
experts have acknowledged the impossibility of answering this threshold
question, which if answerable in the affirmative could justify the expenditure
of the significant financial resources necessary to take a particular
technology from concept to shipboard installation.
Furthermore, in the absence of any standardized test
protocols, technology developers and some ship owners have borne the cost of
laboratory and prototype testing which have produced promising results but
which, unfortunately, are not comparable from one technology to another. Standardized test protocols which outline
scientifically acceptable test methods are necessary to provide the necessary
comparability among various tested technologies. These standard test protocols are currently the subject of a
joint public/private effort organized by EPA under its environmental technology
verification program and in which CSA participates.
While we do not claim any scientific expertise in
establishing the quantitative aspects of a biological standard (which must
necessarily balance achievability with environmental protection), we do propose
that any established standard, whether experimental, interim or final, should
be achievable based on existing or reasonably expected technology and capable
of being installed and operated on new and existing vessels with a minimum of
disruption to ship operations. The
current bill proposes 95% kill, inactivation and/or removal interim standard. We believe that a standard based on size of
organism is far preferable to a format which establishes a particular
percentage for the following reasons. A
size based standard would meet the necessary criteria of biological
meaningfulness, scientific soundness and enforceability. To fully comprehend the necessity of
establishing a standard meeting these criteria requires a review of the
problems created if such criteria were not met, as would be the case with the
95% kill, inactivation and/or removal standard proposed.
First, the 95% number was chosen as a surrogate
equivalency for the 95% volumetric efficiency associated with ballast
water exchange. We do not believe that
a direct correlation between biological and volumetric efficiency is
justifiable, particularly when one notes that various studies attempting to
quantify the biological effectiveness of ballast water exchange have ranged
from 29 – 99%, with variations attributable to the wide range in biological
components of the loaded ballast water, methods of exchange (empty/refill,
dilution) and the criteria organisms which were measured in the loaded and then
exchanged ballast water. Second, a
standard based on percent reduction does not adequately take into account the
risk introduced into the receiving water body. Ballast water loaded from a water body rich in native organisms
and then treated to a 95% kill, inactivation and/or removal criteria, presents
a far different risk to a receiving ecosystem than ballast water loaded in a
relatively “benign” water body. Third,
enforcement and compliance programs utilizing a percent reduction, presuppose
that a sample of water taken at the load port would then later be analyzed at
the discharge port to enable the determination that a particular percentage of
organisms were in fact killed, inactivated or removed. The reliability of such a measurement is
problematic as the biological composition of the sample during transit will
naturally change as certain organisms may die off during transit, while others
may thrive, based on the environment in the sample container.
Creation of a performance standard based on size of
organism killed, removed or inactivated eliminates these problems. Removal based on organism size can be
directly related to risk reduction in the discharged ballast water. Additionally, compliance is more easily
verified since the ballast water would only need be analyzed for organism size
rather than the potentially wide range of organism types and their
concentrations found in ecosystems worldwide.
The key to successful implementation of a national
(and international for that matter) ballast water management program that
transitions from the use of ballast water exchange to ballast water treatment
systems requires a program which provides incentives for participants to go
beyond the status quo (currently exchange) and results in the installation of a
number of “in test” technologies aboard ship.
Laboratory and shore side prototypes can only go so far. It is these shipboard installations operated
in the sometime severe marine environment on a variety of ship types and with
ballast water loaded in a wide range of ports worldwide that will provide us
with the data necessary to establish what is practically achievable and what is
not. Furthermore, such test programs
will provide valuable data to invasion biologists relative to what types of
organisms from specific geographical regions present the greatest threat to US
waters. A robust incentivized
experimental shipboard testing program with appropriate agency oversight and
reporting requirements is absolutely critical to a successful ballast water
management program.
Most international and US regulations pertaining to
shipboard equipment include grandfathering provisions which provide that
compliance with a standard in place at the time the vessel is constructed (or
undergoes major modification) establishes compliance for that equipment for the
life of the vessel. Such provisions need
to be considered within the context of ballast water treatment systems which
carry significant initial costs and present challenges to retrofitting new
equipment on an already existing vessel.
At the very minimum, compliance life of the treatment system should be
linked to expected return on an investment of this significance and the
(in)ability of an existing vessel to install a new system on an existing
vessel. Grandfathering provisions will
also play a critical role in accelerating the move from ballast water exchange
to treatment, where the outlay for treatment system installation far exceeds
the operating expenses of maintaining the status quo (ballast water
exchange).
In the ideal world, requirements established by the
International Maritime Organization (IMO), the US, states and local/regional
jurisdictions would mirror one another.
Compliance with one would constitute compliance with the others and
provide assurance that vessels, most of which are engaged in international
trade, would not be subject to different sets of requirements in each port of
call. Current direction at the IMO
suggests that the international standards may not be viewed as sufficiently
stringent for US waters, although the US delegation to IMO is working very hard
at achieving that level of stringency in treaty text which is expected to be
finalized at a Diplomatic Conference in early 2004. Recognizing the limited ability any one country has to influence
the final outcome in international treaty negotiations, we turn to the ability
to at least create this consistency within US waters, noting the large number
of vessels which call in multiple US ports.
Language preempting state programs would be the ideal solution to this
dilemma. However, recognizing the
political baggage which accompanies such preemption text, states, at a minimum,
should be urged to the maximum extent practical, to adopt the national program
as their respective state programs.
Based on discussions with representatives of a number of states’ environmental
agencies, it is expected that states’ would gladly “buy in” to a sufficiently
strong national program which did not place them in the precarious position of
choosing environmental protection at the expense of port competitiveness.
·
Establishment of an
achievable and environmentally protective ballast water treatment performance
standard utilizing organism size as the criteria for compliance.
·
Establishment of a
standardized testing protocol for developing technologies which will enable
comparability among test results for various technologies.
·
Development of an
incentivized experimental shipboard testing program to maximize the number of
technology types being tested on a wide variety of ship types and over a wide
geographic range.
·
Develop appropriate
grandfathering provisions for treatment systems taking into account the
significant investment required for installation and operation of such systems
and (in) ability to retrofit new systems aboard existing vessels.
·
Maximize consistency
among international, national and sub-national requirements.
ISSUE: A number of Members expressed concern about
enacting a strong federal program within the context of traditional states’
rights in control and protection of their waters.
RESPONSE: CSA recognizes and supports the notion of
states’ rights over control of their marine environment. However, CSA also recognizes the
international nature of marine transportation and the transfer of aquatic
invasive species which necessarily demands a strong international and national
template for controls on which the states may rely. CSA recommends that federal preemption language be included in
the bill limited only to those programs addressing prevention – namely, Title
I, Section 101 which addresses prevention of ANS introductions into US waters
by vessels. The remaining sections of
the legislation addressing research, early detection, rapid response, control
and outreach would not be subject to federal preemption and would be
implemented through coordinated federal/state/private partnerships.
ISSUE: A number of witnesses expressed concern over
the proposed 95% kill, inactivation or removal format for the performance
standard.
RESPONSE: We agree with the expressed concerns. As indicated above, the performance standard
must be biologically meaningful, scientifically sound and enforceable (readily
measurable). A standard based on size
of organism meets this criteria, while one based on percent kill, inactivation
or removal does not. In addition, we
believe the standard should also be technologically achievable and practical
taking into account the harsh marine environment in which ballast water treatment
systems must operate.
ISSUE: A number of Members and witnesses discussed
the relative importance of the various aspects of a national program which must
necessarily include prevention, early detection, response, control, eradication
and outreach.
RESPONSE: We believe that prevention of invasions is
the lodestone of a successful program.
While appropriate focus should be placed on early detection, response,
eradication and outreach, primary focus should be placed on keeping the
invaders out of our waters in the first place.
History is the unfortunate witness as to the practical impossibility of
eradicating an already invasive species once entrenched in an ecosystem in all
but a very few cases where the geographic range of the invasion has been
limited either through natural phenomenon or early human intervention. It is also important to note that the need
for attention to program components other than prevention is necessary due to
the fact that the development of technologies addressing the various vectors of
ANS transmission is in its infancy and, while expected to improve substantially
over time, is not capable of reducing the risk of invasions to zero.
ISSUE: Several witnesses noted that the proposed
legislation is unclear in some portions as to which, if any, federal agency is
the “lead” agency on a particular issue.
RESPONSE: We agree that
responsibilities of federal agencies should be clearly and consistently
identified. We also recognize the
complexity of dealing with the aquatic invasive species problem and the need
for all agencies with expertise in a given area to be involved in the decision
making which leads to regulations implementing the provisions of the bill. It is our understanding that an existing
interagency review process is well equipped to vet proposed regulations among
the interested agencies prior to promulgation.
With this system in place, the responsibilities and roles assigned to
the various agencies under the bill should be clear, consistent with agencies’
known expertise and provide for a single agency to take the lead on a given
initiative. For example, the bill as
proposed would require the Coast Guard to establish the interim standard with
the concurrence of the EPA and in consultation with the ANS Task Force. However, the bill then proposes that the
final standard be established by the EPA with the concurrence of the Coast
Guard and in consultation with the ANS Task Force. Such inconsistency is difficult to fathom since all three of
these entities (and quite likely other agencies) should be involved in the
development of standards (whether they be interim or final). CSA believes that a single agency be
recognized as the lead agency for standards development and we assert that
agency should be the US Coast Guard, but only after due consultation with all
federal agencies with expertise in this area.
ISSUE: Two witnesses addressed the issue of interim
and final standards in their written testimony and specifically, questioned
whether both an interim and final standard is needed (versus establishment of a
final standard only).
RESPONSE: CSA recognizes the inherent difficulties
placed before federal agencies in transitioning from an interim standard to a
final standard, particularly with regard to what benefits should accrue to a
proactive shipowner who has early on in the process, invested heavily in an
experimental shipboard system which proves to exceed the effectiveness of
ballast water exchange but fails to meet the final standard. On the other hand, vendors and shipowners
absolutely require now some quantitative criteria, a target if you will, which
if met, qualifies their equipment and the shipboard installation for favorable
compliance treatment under the experimental shipboard testing program and
beyond the final standard implementation date, in order to provide adequate
incentives for early action. Without
such incentives, vendors can not justify bench and shore scale testing programs
and vessel owners can not justify the significant outlay to move the technology
to full shipboard installation and testing, a critical step in the development
of promising and increasingly more effective technologies. With such incentives, entities with
proactive programs will be appropriately rewarded while those who remain in the
wings waiting for others to incur the shipboard testing costs will be required
to meet the final standard by the legislatively mandated implementation
date. This issue has been the subject
of much discussion in both international and national fora and CSA believes
that the issue is one more related to semantics than substance, at least from
the industry’s perspective. If the
concept of an interim standard is problematic for the enforcement of the
ballast water management program, then CSA suggests inclusion of a performance
standard within the body of the experimental shipboard testing program. Such inclusion, while not mandatory for
participation in the shipboard testing program, would provide that vessels
which do not meet this standard during the course of the testing, would be subject
to final standard requirements at the implementation date. Technologies that do meet this (interim or
experimental) performance standard prior to or during the course of the
experimental shipboard testing program would be afforded the benefits of a compliance
designation beyond the final standard implementation date and for an
appropriate term to be determined.
Based upon the expected life of large marine vessel systems, CSA
proposes that a 20 year life is an appropriate starting point. Providing such an incentive is well
justified in light of the need to get a number of promising technologies
installed and under test aboard vessels as such tests will not only permit a
determination of the capabilities of existing technology but will also begin to
provide the much needed data relating to biological profiles of ballast water
loaded at locations around the world.
We thank you for the opportunity to provide these
comments and would be pleased to address any questions or discuss any other
related issues in which you have an interest.