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.

 

Technology Performance Standards/Standardized Test Protocols

 

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.

                    

Experimental Shipboard Testing Program

 

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.

 

Grandfathering Provisions

 

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). 

 

International/National/Sub-national Consistency

 

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.

 

Recommendations

 

·                 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.

 

CSA Responses to Issues Raised During the Hearing

 

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.