Second Circuit Nixes EPA Water Ballast Regulations

Second Circuit Nixes EPA Water Ballast Regulations

By: Cami Fergus

Edited By: Andrew Lifsey

NRDC v. United States EPA, Nos. 13-1745(L), 13-2393(CON), 13-2757(CON), 2015 U.S. App. LEXIS 17477 (2d Cir. Oct. 5, 2015). Petitioners asserted that the EPA’s issuance of the 2013 Vessel General Permit (hereinafter “2013 VGP”), issued in order to regulate ballast water discharged from ships, was “arbitrary and capricious, and not in accordance with law.” This challenge is pursuant to EPA’s efforts under the Clean Water Act 402(a) (hereinafter CWA). Since ballast water often contains organisms, sediments, and pollutants, expelling ballast water can lead to non-native populations of organisms that can be devastating to ecosystems. This is especially a problem in the Great Lakes, as “Lakers,” or vessels operating exclusively on the lakes, take in 90% of ballast water volumes and only travel short distances allowing organisms to survive in the ballast. In April 2013, EPA issued a vessel permit called the “2013 VGP” to comply with the CWA to regulate the discharge of ballast water.The case supplies background knowledge on the 2013 VGP and the various guidelines that petitioners argue the 2013 VGP does not meet. The EPA issues NPDES permits, or National Pollutant Discharge Elimination System. These permits impose several standards, including Technology-based effluent limits (“TEBLs”) and Water-Quality Based Effluent Limits (“WQBEL’s”). NPDES permits also require a monitoring and reporting of TBELs and WQBELs.TBELs were designed by Congress to permit applicants to adopt technology standards that “achieve the greatest reductions in pollution.” The standard for these is Best Achievable Technology, or BAT. This can mandate an industry that is not currently using available technology to do so if it finds it appropriate. Ballast water is subject to this standard because it can transport invasive species that are a nonconventional pollutant from an existing source.WQBELs “supplement TBELs and are based on the amount and kind of pollutants in the water.” WQBELs set water quality levels, and then give either a narrative or numeric limit on pollutants in the water. If a numeric limit is found too hard to calculate, a narrative limit can be given. Even if only a narrative goal is given, it must come with certain criteria, and the permit can then mandate “best management practices.”After these findings, the 2013 VGP was created. In the 2013 VGP, the EPA chose to set TBELs at the International Marine Standard (“IMO standard”) for 2004, limiting the number of organisms 50 micrometers or larger to fewer than 10 living organisms of ballast water, and limiting discharges of organisms less than 50 micrometers to fewer than 10 living organisms per milliliter of ballast water, as well as limiting discharges of pathogens and pathogen indicators.Petitioners argued that EPA’s issuance of the 2013 VGP was “arbitrary and capricious and not in accordance with law” because : 1) they used the IMO standard; 2) did not consider onshore treatment; 3) failed to include numeric TBELs for viruses and protists; and 4) exempted Lakers built before 2009 from numeric TBELs. Second, the narrative standard is “too imprecise to guarantee compliance with water quality standards.” Third, the monitoring and reporting requirements for TBELs and WBELs are inadequate to guarantee compliance.In summary, the court found that the EPA acted arbitrarily and capricious with respect to 1) EPA’s decision to set the TBELs at the IMO standard; 2) EPA’s failure to consider onshore treatment for ballast water discharge; 3) EPA’s decision to exempt pre-2009 lakes from the TBELs, EPA’s narrative standard for WQBELs, and the monitoring and reporting requirements established by EPA. The court remanded this case for further proceedings.