United States: The Evolving Ballast Water Conundrum

Last Updated: March 21 2014
Article by Jonathan K. Waldron, Jeanne M. Grasso and Patricia M. O'Neill

The U.S. Environmental Protection Agency ("EPA") recently issued long-awaited guidance regarding the coordination and interplay between the compliance date extensions the U.S. Coast Guard is issuing for ballast water management discharge standards and the EPA's approach to the same under the new Vessel General Permit for Discharges Incidental to the Normal Operation of Vessels ("2013 VGP"). Despite the Coast Guard's authority—and willingness—to grant extensions to its implementation schedule, the EPA confirmed that the implementation date for the 2013 VGP ballast water management standards would not be extended to match those granted by the Coast Guard. While the Coast Guard and EPA maintain a purportedly collaborative approach to addressing ballast water management challenges, the EPA's recent policy represents a split between the co‑regulators' respective enforcement approaches. As such, the EPA's divergence with the Coast Guard's policy means that even with a Coast Guard extension, vessel owners/ operators will not be in compliance with the 2013 VGP, unless they either install a Coast Guard-authorized Alternative Management System ("AMS"), which may need to be replaced in five years, or they do not discharge ballast water in a U.S. port, thus creating an untenable conundrum for those desiring to be in compliance.

By way of background, on June 21, 2012, the Coast Guard's Ballast Water Discharge Standard Final Rule went into effect, creating new compliance requirements for U.S.-flag and foreign-flag vessels equipped with ballast tanks operating in U.S. waters. In order to discharge ballast water into U.S. waters, vessels are required to use an approved ballast water management method in accordance with a phased-in schedule based on their ballast water capacity. Vessels have five options to comply, none of which are likely practical at this time: (1) installing a Coast Guard type-approved ballast water management system ("BWMS"); (2) installing an AMS; (3) using water from the U.S. public water system; (4) using shoreside reception facilities; or (5) not discharging ballast water in U.S. ports. Alternatively, vessel owners and operators may request from the Coast Guard an extension to the implementation schedule under certain conditions as there are no Coast Guard type-approved BWMSs—and no guaranty that the AMSs on the Coast Guard's authorized list will ultimately be type-approved.

The other part of the ballast water compliance equation is the EPA's 2013 VGP, effective December 19, 2013, which has its own ballast water discharge standards that are similar, but not identical, to the Coast Guard's standards. In response to industry requests for the EPA to delay its implementation schedule as did the Coast Guard, the EPA issued an "Enforcement Response Policy for EPA's 2013 Vessel General Permit" on December 27, 2013. Unlike the Coast Guard, the EPA refused to extend the implementation date for the 2013 VGP ballast water management requirements to match the extensions granted by the Coast Guard, but rather took a "low enforcement priority approach," leaving vessel owners/ operators in a compliance conundrum. Thus, despite being in compliance with the Coast Guard requirements, vessel owners/ operators would not be in compliance with the 2013 VGP.

To qualify for the EPA's "low enforcement priority policy," vessel owners/ operators must have received an extension from the Coast Guard and must be in compliance with all provisions of the 2013 VGP. In exercising its enforcement discretion, the EPA has stated that it will consider, among other factors, that there is no Coast Guard type-approved technology available. The EPA further explained that although the Coast Guard's decision to grant an extension of the implementing regulatory schedule for the required technology on a particular vessel will be considered by the EPA in enforcement decisions, it is not binding.

Regarding EPA enforcement, where a vessel has received an extension from the Coast Guard and is in compliance with all other provisions of the 2013 VGP except the ballast water discharge limits, the EPA may "take into account" the circumstances under which the Coast Guard issued the extension. In these circumstances, the EPA will "consider such violations of the 2013 VGP ballast water numeric discharge limit a low enforcement priority." The enforcement policy, however, does not apply if there are other VGP non-compliances (without further elaboration) or to situations of "grossly excessive ballast water discharges or those that may present an imminent and substantial endangerment, criminal violations..." "Grossly excessive ballast water discharges" and "imminent and substantial endangerment" clauses are not defined in the policy letter and present even more ambiguity as to what circumstances would lead the EPA to enforce violations of the 2013 VGP.

The EPA's approach here, and failure to act consistent with the Coast Guard, leaves vessel owners/operators with a few options, none of which are desirable: (1) install a Coast Guard authorized AMS, which may need to be replaced in five years if it does not get Coast Guard type-approval in the interim; (2) apply for an individual National Pollutant Discharge Elimination System ("NPDES") permit for each vessel as an alternative to the 2013 VGP, which could take months and be extremely costly while the EPA sorts out how it will handle such applications as EPA regions typically issue individual permits for land-based facilities for coverage in that particular region; or (3) enter into a consent decree following a violation of the 2013 VGP, which would set forth requirements for compliance going forward, but subjecting the vessel owner/operator to possible administrative, civil, or even criminal sanctions.

In summary, the EPA enforcement policy creates a conundrum for vessel owners/operators seeking a viable compliance option. Despite being granted an extension from the Coast Guard, a vessel owner/ operator still finds itself in violation of the EPA's 2013 VGP, and is therefore subject to potential enforcement by the EPA and possible citizen suits. Non-compliance could also have significant negative commercial implications if considered in charterer vetting inspections and vessel evaluations. Noncompliance could also lead to possible violations of existing charter party provisions or other commercial agreements that do not allow knowing or intentional regulatory or other violations. And, finally, non-compliance could pose issues with respect to insurance coverage and disclosures for publicly traded companies. While the EPA claims that VGP violations will be a low priority, the bottom line is that low or non-enforcement does not equal compliance—a conundrum indeed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Jeanne M. Grasso
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.