US court rejects challenge to EPA ballast permit
By JOHN FLESHER
AP Environmental Writer
TRAVERSE CITY, Mich. (AP) — A federal appeals court has refused to prohibit states from being tougher than the federal government on ships that discharge ballast water, a leading culprit in the spread of invasive species such as zebra and quagga mussels in U.S. coastal waterways and the Great Lakes.
The ruling by the U.S. District Court in Washington, D.C., escalates a battle between the shipping industry, regulators and environmentalists over dumping ballast water and other substances from vessels. Legislation pending in Congress would strip funding for any Environmental Protection Agency programs from states whose rules exceed those on the federal level.
Cargo ships often carry millions of gallons of water and sediments in ballast tanks to help keep vessels upright in rough seas. The soupy mixtures teem with fish, bacteria and other organisms released as freight is taken on in port. Many of the foreign species spread rapidly, starve out native competitors and upset the ecological balance.
Invaders such as zebra mussels cause billions of dollars each year in economic losses.
The EPA issued a permit regulating ship discharges in 2008. It incorporates at least 100 provisions tacked on by more than a dozen states with their own policies — some more stringent than the EPA’s.
Groups representing shipping companies and ports asked the federal appeals court to strip the state-specific rules from the permit, saying they were creating a regulatory hodgepodge. But in its ruling Friday, the court said the federal Clean Water Act allows states to protect their waters.
“EPA is pleased that the court upheld the agency’s common-sense step to protect water quality in communities across the country,” agency spokesman Brendan Gilfillan said Monday.
Thom Cmar, attorney for the Natural Resources Defense Council, described the ruling as “a states’ rights decision.”
“We agree the ideal situation would be a strong national standard for ballast water to prevent introduction of invasive species,” Cmar said. “But the federal government hasn’t created that standard, so the states had to act.”
The American Waterways Operators, a trade group representing owners and operators of tugboats, towboats and barges, said Congress should amend the Clean Water Act to require a uniform nationwide policy.
“A tow moving from Pittsburgh to New Orleans travels through the waters of 11 states,” said Jennifer Carpenter, the group’s senior vice president. “The court decision implies that even if those 11 states impose conflicting, overlapping or infeasible conditions applicable while the tow is in their waters, and even if EPA knows that those conditions are unworkable, the agency has no authority … to reject or modify the state conditions.”
The U.S. Coast Guard has promised to release long-awaited ballast discharge rules this year. The EPA is updating its permit under a settlement with environmental groups that claimed in a lawsuit it was too weak. The 2008 permit required shippers to exchange their ballast water at sea or rinse the tanks with salt water before entering U.S. territory. The new version will limit the number of live organisms in ballast water, a step that will require shippers to install sterilization equipment.
This month, the U.S. House amended a spending bill to deny EPA funds to any state that goes beyond the federal ballast standards. Rep. Steven LaTourette, an Ohio Republican who proposed the measure, said the patchwork of state and federal rules was damaging companies that haul coal, limestone, grain and other commodities on the Great Lakes.
“This cargo drives our region’s electric power, steel, automotive manufacturing and construction industries,” LaTourette said. “These misguided state regulations are threatening to bring these industries and our treaties with Canada to their knees.”
The industry is particularly unhappy about New York standards that set live-organism limits 100 times tougher for existing ships than those in an early draft of the Coast Guard rules. For newly built ships, New York’s standards would be 1,000 times stronger. State officials have postponed the requirement’s effective date to 2013, giving shippers more time to comply.
LaTourette also singled out Michigan, which requires vessels that discharge ballast water in its ports to use one of several approved sterilization methods. The industry says it’s working on those technologies but need more time to perfect them and retrofit its ships.
Patricia Birkholz, a former Republican state senator who now directs Michigan’s Office of the Great Lakes, said the states imposed their own rules because federal agencies and the industry dragged their feet for years.
“To punish states for doing what we think and know is the right thing is not the way to go,” said Birkholz, who sponsored Michigan’s ballast water legislation.
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