Ports and Shipping

In what is considered to be a blow to U.S. corn growers, the EPA today sent a letter to the Gen. Wesley Clark chaired trade association “Growth Energy” indicating that the EPA needed more time to complete tests on how an increase by 5% (from 10% ethanol to 15% ethanol) in ethanol content may damage engines and fuel lines.

The good news for Growth Energy, which formally petitioned for the increase, was that the EPA reported that two tests showed that engines in newer cars can handle the higher blend. “The announcement is a strong signal that we are preparing to move to E15,” Growth Energy said in a statement, asserting that the switch would mean 136,000 new jobs.

However, the Renewable Fuels Association saw it as a major blow to the growth of biofuels in the U.S. “The delay threatens to paralyze the continued evolution of America’s ethanol industry,” RFA president Bob Dinneen said. “Moreover, this delay will chill investment in advanced biofuel technologies at a critical time in their development and commercialization.”

As it stands, the U.S. ethanol industry benefits from a tax credit, a tariff on imported ethanol and from the nation’s Renewable Fuel Standard, which will require fuel distributors to blend 15 billion gallons of ethanol with gasoline in coming years. But the industry is fast reaching that point and will exceed 11 billion in 2009.

The E15 blend has been controversial in part because of the damage that ethanol, a corrosive, already has caused in fuel lines and other components of boat engines and some small motors.

The EPA is involved because of air pollution implications and was required under the Clean Air Act to act by today on Growth Energy’s waiver request. The federal agency said that is has been working with the Energy Department to conduct tests “as quickly as possible given the available testing facilities.”

The Environmental Working Group, a Washington-based advocacy organization, praised the EPA’s deliberate process. The group’s Craig Cox said that sound science had trumped “efforts by well-funded and politically well-connected ethanol lobby to short circuit” the testing process.


The California Air Resources Board (CARB) has issued an advisory (Marine Notice 2009-1) regarding implementation of an upcoming  regulation on fuel sulfur and other operational requirements for ocean going vessels. The purpose of the advisory is to notify owners and operators of ocean-going vessels of a new regulation adopted by CARB that requires the use of marine distillate fuels.

The fuel requirements in the proposed regulation are summarized in the table below. These fuel requirements apply to ocean-going vessel main (propulsion) diesel engines, auxiliary diesel engines, and auxiliary boilers when operating within the 24 nautical mile regulatory zone off the California Coastline.

Fuel Requirements for Ocean-going Vessel Main (propulsion) Diesel Engines, Auxiliary Diesel Engines, and Auxiliary Boilers

Fuel Requirements Effective Date Fuel
Phase I July 1, 2009* Marine gas oil (DMA) at or below 1.5% sulfur; or Marine Diesel oil (DMB) at or below 0.5% sulfur
Phase II January 1, 2012 Marine gas oil (DMA) or Marine diesel oil (DMB) at or below 0.1% sulfur

*All initial effective dates have been administratively aligned to begin July 1, 2009

Currently, CARB is giving the regulation its final administrative review.  CARB expects approve the regulation to become legally effective late in June, with compliance with the new requirements by vessels beginning on July 1, 2009. A second advisory (Marine Notice 2009-2) will be issued shortly that will provide additional detail on the regulation.

Marine Notice 2009-1 is available at the following:  http://www.arb.ca.gov/ports/marinevess/documents/marinenote2009_1.pdf

Other information for marine vessel programs is available on CARB’s website:  http://www.arb.ca.gov/marine

The United States took a critical step towards protecting Americans from harmful ship emissions by becoming the first country to ask the International Maritime Organization to create an emissions control area (ECA) around the nation’s coastline, the EPA announced today at a joint news conference with the Coast Guard and New Jersey elected officials.

According to the EPA’s data, the creation of an ECA would save up to 8,300 American and Canadian lives every year by 2020 by imposing stricter standards on oil tankers and other large ships that spew harmful emissions into the air near coastal communities where tens of millions of Americans live, work, play and learn. The United States is proposing a 230-mile buffer zone around the nation’s coastline in order to provide air quality benefits as far inland as Kansas.

“This is an important – and long overdue – step in our efforts to protect the air and water along our shores, and the health of the people in our coastal communities,” said EPA Administrator Lisa P. Jackson.  “We want to ensure the economic strength of our port cities at the same time that we take responsible steps to protect public health and the environment in the United States and across the globe.”

U.S. Senator Barbara Boxer (D-CA), Chairman of the Senate Committee on Environment and Public Works, said, “We have known for a long time that our families that live around ports have a higher rate of respiratory illness, including cancer. EPA’s announcement today is music to my ears because it means the United States is stepping forward to take a strong leadership role on clean air around ports.”

Under this program, large ships such as oil tankers and cargo ships that operate in ECAs will face stricter emissions standards designed to reduce the threat they pose to human health and the environment. These standards will cut sulfur in fuel by 98 percent, particulate matter emissions by 85 percent, and nitrogen oxide emissions by 80 percent from the current global requirements.

To achieve these reductions, ships must use fuel with no more than 1,000 parts per million sulfur beginning in 2015, and new ships must used advanced emission control technologies beginning in 2016.

Air pollution from ships is expected to grow rapidly as controls on other mobile sources take effect and port traffic increases. Ocean-going vessels, which are primarily foreign owned and operated, dock at more than 100 U.S. ports, more than 40 of which are in metropolitan areas that fail to meet federal air quality standards.

EPA led the U.S. effort to develop the proposal in coordination with federal partners such as the Coast Guard, State Department and the National Oceanic and Atmospheric Administration. Canada joined the U.S. as a co-proposer on the ECA proposal, advancing a strategy for a coordinated geographic emissions control program.

The proposal, submitted to the IMO on Friday, March 27, is one part of a comprehensive EPA program to address harmful emissions from ocean going vessels under the National Clean Diesel Campaign and the Clean Ports Program. Other elements include adoption of a Clean Air Act rulemaking process, which EPA plans to finalize this year.

The IMO, a United Nations agency, will begin reviewing the proposal in July. Approval of the proposal could occur as soon as next year.

For the Post analyzing the EPA’s Press Conference, follow this link:  https://transportenvllaw.wordpress.com/2009/03/31/epa-proposes-to-create-an-emission-control-area-along-the-us-coastlines-to-cut-harmful/

EPA issued the following press release this morning:

EPA Administrator Lisa P. Jackson will hold a joint news conference on Monday with federal and state officials to announce a new proposal to address harmful emissions from ships that travel near communities where tens of millions of Americans live, work, play and learn.

Administrator Jackson will be joined by Coast Guard Rear Admiral Sally Brice-O’Hara, New Jersey Governor Jon Corzine, Senator Frank Lautenberg and Congressmen Donald Payne and Albio Sires on Monday at Port Newark in New Jersey.

Emissions from ocean-going ships can contaminate the air in nearby communities. These ships dock at more than 100 U.S. ports and more than 40 of those ports are in metropolitan areas that do not meet federal air quality standards.

Who: EPA Administrator Lisa Jackson, Coast Guard Rear Admiral Sally Brice-O’Hara, New Jersey Governor Jon Corzine, Senator Frank Lautenberg and Congressman Donald Payne, Congressman Albio Sires

What: Press conference to announce proposal to slash harmful ship emissions

When: Monday, March 30, 2009 at 12:00 p.m.

Where: Berth 50 at Port Newark.

Rain Location: New York Shipping Association Training Center, 1210 Corbin Street, Elizabeth.

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A Federal judge in Corpus Christi, Texas, on March 17, 2009, fined General Maritime Management $1 million and sentenced it to serve five years of probation. In addition, the company must rehire the whistleblowers if they reapply for employment, submit monthly reports, under oath, regarding conpliance, and allow a court appointed official to perform three audits of each vessel and three audits of its shore side office during the probation period.

The criminal convictions were related to events occurring on board the Genmar Defiance during a voyage to Corpus Christi in November, 2007.  On November 24, 2007, engine room crew members were directed by the tanker’s First Engineer, Cavadas, to assist in hooing up a flexible hose between the ship’s bilge pump and the overboard discharge valve bypassing the vessel’s pollution prevention equipment – its oil-water separator – and allowed crewmembers to pump the contents of the bilge tank directly into the Straits of Florida and the Gulf of Mexico.

Two days later, one of the crew members working in the ship’s engine room was ordered by First Engineer Cavadas and Chief Engineer Rodrigues to assist in connecting a hose from the vessel’s fresh water supply to the oil content meter on the ship’s of oil-water separator. The connection allowed the engineers to “trick” the oil content meter and prevent it from shutting a valve that would re-circulate oily water to the bilge tank where it would be treated through the oil-water separator before being discharged overboard.  By tricking the oil content meter, the oily water was permitted to be discharged directly overboard in violation of international law.  Two engine room crewmen secretly photographed the illegal connection and provided the photographs to the Coast Guard during a boarding of the vessel on November 26, 2007, while the Genmar Defiance was docked at the Valero refinery.

Engine room operations on-board large ocean-going vessels such as the Genmar Defiance generate large amounts of waste oil.  International and U.S. law prohibit the discharge of waste oil above 15 parts per million oil to water, which can be achieved by the proper operation of an oil-water separator.  The law also requires that all of the oil transferred onto, off of, or between tanks within a ship be recorded in the Oil Record book so all the oil on a ship can be accounted for when the ship is inspected by the U.S. Coast Guard and other port state control authorities around the world.

In the end, General Maritime was convicted of making false statements to the U.S. Coast Guard and failing to maintain an accurate Oil Record Book designed to prevent pollution of the world’s oceans as required by United States and international law.

On March 11, 2009, the EPA issued a Notice Regarding National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges Incidental to the Normal Operation of a Vessel. This Notice affects the VGP for the States of New Jersey, Illinois and California.

EPA previously announced the final NPDES general permit for discharges incidental to the normal operation of vessels, also referred to as the Vessel General Permit (VGP) on December 29, 2008. The permit became effective December 19, 2008.  Today’s notice of availability provides notice of EPA’s deletion of specific State section 401 certification conditions from Part 6 of the VGP for the States of New jersey, Illinois, and California.

Through the certification process under the Clean Water Act, States were given the opportunity to add conditions to the permit they believe are necessary to ensure that the permit complies with the Clean Water Act and other appropriate requirements of State law, including State water quality standards.  Since the effective date of the VGP, New Jersey, Illinois and California all modified their certification for the VGP, deleting certification conditions:

  • New Jersey deleted certification conditions 1 and 2;
  • Illinois deleted certification condition 9;
  • California deleted certification conditions 1, 2, 5, 7, 8, 9, 10, 13, 14, 15, and 7.1 and 7.2 from certification condition 16 and Attachments 4, 5, and 6 from certification 17.

Since pursuant to Clean Water Act regulations (40 CFR 124.55(b)) the EPA may, at the request of a permittee, modify the VGP based on a modified certification received after final agency action on the permit “only to the extent necessary to delete any conditions based on a condition in a certification invalidated by a court of competent jurisdiction or by an appropriate State board or agency, EPA has removed these deleted certification conditions from the VGP.

EPA’s letters notifying the requesting permittees that their requests to delete the permit conditions were granted, can be found in the docket for the VGP (Docket ID no. EPA-HQ-OW-2008-0055)

A copy of the VGP reflecting those deletions can found on the EPA’s website:  http://www.epa.gov/npdes/vessels.

The EPA’s new “Vessel General Permit” goes into effect February 6, 2009, requiring “all vessels operating as a means of transportation that discharge ballast water and other incidental discharges into waters of the United States”  to comply with a range of Best Management Practices (BMPs), reporting, and other requirements.

Historically, EPA has exempted ballast water discharges, and other discharges incidental to the normal operation of vessels from Clean Water Act NPDES permit requirements.  However, because of a court’s ruling that EPA’s exemption of incidental discharges exceeded EPA’s statutory authority under the Clean Water Act, the EPA developed two draft general permits to regulate incidental dischagres from vessels:  the Vessel General Permit and the Recreational Vessel General Permit.  See also, the Ninth Circuit’s upholding the lower court’s decision.  Because Congress exempted recreational vessels from NPDES permitting, the EPA finalized the Vessel General Permit on December 18, 2008.  73 Fed.Reg. 79473 (Dec. 29, 2008). Although the Federal Register notices states that the General Permit goes into effect on December 18, 2008, the Northern District of California extended its vacatur until February 6, 2009.

A General Permit is a NPDES permit that is issued to cover a certain class of dischargers or discharges, as opposed to an individual permit which cover a single discharger.  Since the Clean Water Act requires a NPDES permit for all discharges into the waters of the United States, this General Permit will make legal for incidental discharges to occur, so long as they follow the BMPs outlined in the General Permit.

Only vessels greater than or equal to 300 gross tons and which have the capacity to hold or discharge more than 2113 gallons of ballast must submit a Notice of Intent to receive permit coverage.  These Notices of Intent are required to be filed no earlier thn June 19, 2009.  All other vessels subject to the General Permit are not required to submit a Notice of Intent, but they are still required to follow the BMPs in the General Permit, including the inspection, monitoring, reporting and recordkeeping requirements.

As final matter, the same environmental groups that initially got the exemption overturned, have filed petitions for review in the Ninth Circuit seeking the vacatur of the General Permit.  However, until such time as the Court rules, vessel owners will be required to comply with the General Permit.

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