Oregon Department of Environmental Quality

January xx, 2017

Oregon Environmental Quality Commission Meeting

Rulemaking Action Item NO. XX

Ballast Water Management 2016

This file contains the following documents:

•  EQC Staff Report

•  Draft rules – redline/strikethrough

•  Draft rules – no markup

•  Supporting documents

DEQ recommendation to the EQC

DEQ recommends that the Environmental Quality Commission adopt the proposed rules in Attachment A as part of Chapter 340 of the Oregon Administrative Rules.

•  

Overview

Short summary 

Ballast Water Rules

DEQ proposes the Oregon Environmental Quality Commission (EQC) approve the proposed ballast water management rule amendments. These amendments would further enhance DEQ’s ability to prevent the transport and introduction of aquatic invasive species (AIS) from commercial shipping activities to state waters, thereby protecting Oregon from potentially harmful economic and environmental impacts. The proposed rule amendments are in response to recent changes in federal regulations and aim to ensure adequate AIS prevention strategies for Oregon ports.

The proposed rules establish greater protection for Oregon water resources and aquatic ecosystems in two ways. First, the rules close a management gap associated with residual ballast water and sediments in empty ballast tanks that represents a risk for introducing aquatic invasive species when vessel operators must ballast and subsequently de-ballast from empty ballast tanks while in state waters. Second, the rules address concerns that recent federal regulatory changes will replace a strategy that has proven to be highly protective for low-salinity ports (like those in Oregon) with reliance upon first generation shipboard treatment technologies that under some circumstances could be less protective of Oregon ports. Specifically, the rule would retain ballast water exchange requirements for a subset of vessel arrivals that represent a high-risk for introducing AIS to Oregon.

Under current state rules, vessel operators are no longer required to conduct ballast water exchange practices following implementation of federal discharge standards that generally require use of new shipboard treatment technology. The proposed rules would retain ballast water exchange requirements, in addition to meeting federal treatment requirements, for high-risk voyages that had sourced ballast from low-salinity environments. The EPA established a policy to retain ballast water exchange (a.k.a. ‘exchange plus treatment’) under the National Vessel General Permit as a strategy to protect freshwater ports from further damages by AIS, but only required this management model for voyages entering the Great Lakes. Retaining ballast exchange for high-risk voyages would serve as an important interim strategy to protect Oregon’s low-salinity ports during a significant transition that depends upon the reliability of new technologies that have lacked rigorous testing. As proposed, the rule would be repealed after eight years unless DEQ and the EQC determine that technology reliability and efficacy of federal shipboard treatment policies remain inadequate. In the event that these rules are adopted by Oregon, it is anticipated that Washington Department of Fish and Wildlife will seek to adopt comparable rules for vessels operating in the Columbia River.

The proposed rules do not involve fees, additional equipment requirements or significant administrative efforts in order to comply. Therefore, under normal operating circumstances, these rules will not have any significant negative economic impacts, either direct or indirect.

DEQ Noise Regulations

This rulemaking includes a second element. As an administrative action intended to improve the clarity of its rules, DEQ has included rulemaking on a second topic in this rulemaking. This action involves DEQ’s noise control regulations, found at OAR 340 division 35.

In 1991 the Oregon Legislature withdrew all funding for implementing and administering DEQ’s noise regulations. (See OAR 340-035-0110.) DEQ therefore ended its noise control program, although the noise control regulations remain in effect. In response to budget reductions, DEQ no longer conducts a noise control program or enforces the noise control regulations. DEQ has no funding or program to respond to noise complaints, to provide advice about noise issues or to interpret the noise regulations. Local governments may choose to enforce the noise regulations.

The changes DEQ is proposing for the noise regulations are purely administrative to make it easier for the public to access information about these rules. These changes do not indicate any change in DEQ policy or practice concerning the noise regulations. DEQ still does not have a noise control program or have funding or the ability to enforce, apply or interpret the noise regulations, or to investigate noise issues or complaints.

The noise control regulations refer to a number of tables and external documents. Currently, those documents are not published with the official version of the rules on the Oregon Secretary of State web page. Instead, DEQ maintains those documents on its own web site.

In this rulemaking DEQ is asking the EQC to approve amendments to the noise regulations that only incorporate directly into the rules the tables and documents the rules already refer to. This will make it easier for users of these rules to find the information they need to interpret and apply the rules. It will also relieve DEQ from the cost and responsibility of maintaining these documents on its web site.

This rule change does not change any content or wording of the noise control regulations. There is no change in the meaning, effect, or application of these rules. There is also no negative fiscal impact to any person or entity from this rule change.

DEQ will therefore ask the EQC to approve these proposed amendments to the division 35 noise control regulations.

Brief history

Oregon first established ballast water management regulations in 2001 to prohibit commercial vessels from discharging ballast to state waters unless the discharge meets specified management criteria. The primary ballast management practice available to mariners has been mid-ocean ballast water exchange. This strategy replaces ballast originally sourced from distant coastal and nearshore port environments (representing a high-risk for transporting AIS) with lower-risk water sourced from the open ocean. Ballast exchange reduces the risk of transporting non-indigenous species from other freshwater ports to Oregon’s freshwater ports in two important ways: by significantly reducing the number of near-shore organisms in discharged ballast (propagule pressure) and by causing high mortality to any remaining freshwater or brackish organisms in the tanks via osmotic shock. In addition to other management options, such as retaining ballast while in port or using a municipal water supply, using a U.S. Coast Guard (USCG) approved shipboard ballast water treatment system is also identified as an acceptable management method. However, until recently, technology was still in development and the USCG had not established numerical standards or technology certification criteria to guide implementation of treatment–based strategies. In recent years Oregon has been closely monitoring the development of ballast discharge standards at state, federal and international levels to determine whether state-specific discharge standards are necessary, or whether the adoption of federal standards is adequately protective of Oregon waters.

In 2009, the Oregon Legislature clarified authority for the EQC to adopt by rule standards and procedures to minimize the risk of introducing AIS from ballast discharged to state waters (HB 2714). Moreover, the Legislature created the Shipping Transport of Aquatic Invasive Species Task Force (STAIS). STAIS represents a range of stakeholders and makes recommendations to the state on matters related to ballast water management for commercial vessels transiting Oregon waters.

Based on developments at the international and federal level, STAIS recommended in 2010 that Oregon wait for final determination of federal ballast water discharge standards before deciding whether state specific discharge standards are necessary. At that time, federal authorities were considering whether to adopt standards for the numerical limits on living organisms in discharged ballast comparable to those California established in 2007 or the considerably less protective standards established by the International Maritime Organization’s (IMO) 2004 Ballast Water Management Convention.

The 2012 USCG final rule on ballast water management established numeric standards for discharging living organisms in ballast discharge by adopting the less protective standards established by the IMO. The United States Environmental Protection Agency (EPA) also adopted the less protective IMO standards within the 2013 NPDES Vessel General Permit, however, the U.S. 2^nd Circuit Court of Appeals ruled in October 2015 that the EPA’s reliance on the IMO/USCG standard was arbitrary and capricious.

Of particular interest to Oregon, the EPA noted in issuing the 2013 Vessel General Permit that relying upon first generation shipboard treatment systems certified to meet the IMO/USCG standard may not represent an improvement over ballast water exchange for protecting freshwater ports from further aquatic invasive species damages. Rather, for voyages that source ballast from low-salinity environments, replacing ballast water exchange with shipboard treatment systems could increase the chance of transporting and releasing non-indigenous species that represent a high-risk for invasion to freshwater ecosystems.

To achieve an adequate protection level, the EPA proposed retaining ballast exchange requirements, in addition to imposing the new ballast treatment standards, for ocean-going vessels that enter the Great Lakes/St. Lawrence system with low-salinity water in their ballast tanks. Based upon similar concerns, DEQ submitted comments to EPA strongly encouraging the adoption of ‘exchange plus treatment’ for all freshwater harbors in the U.S, and in particular the low-salinity ports in Oregon. Unfortunately, the EPA issued the final permit with ‘exchange plus treatment’ requirements only for vessels operating in the Great Lakes. As a result of the implementation of these federal policies, USCG certified shipboard treatment systems can now be used in place of ballast water exchange to meet ballast water management requirements under OAR 340-143-0050.

In response to the federally mandated changes in ballast water management, the states of Maine, Rhode Island, New York, Minnesota and Michigan established 401 certification conditions to the 2013 EPA Vessel General Permit that require all vessels to retain ballast water exchange in addition to meeting federal discharge standards, regardless of ballast water origin salinity levels. Also, Canadian authorities announced the intention of adopting the IMO D-2 discharge standards, but with a more stringent provision that retains ballast water exchange practices for vessels discharging ballast to low-salinity harbors, including those of the Pacific Coast, such as the Fraser River.

In response to the recent changes, the DEQ has been working with the STAIS task force to evaluate efficacy of the federal discharge standards for protecting Oregon waters. Task force stakeholders sought consensus recommendations based on regional consistency with neighboring states, compatibility with federal regulations, and goals for preventing vessel-mediated AIS introductions to Oregon.

Regulated parties

Ballast Water

The proposed amendments to OAR 340-143 do not change the regulated parties.

Noise Regulations

The noise control regulations apply to a wide range of parties that generate noise. However the proposed amendments do not change the regulated parties or the compliance requirements in any way.

Request for other options

During the public comment period, DEQ requests public comment on whether to consider other options for achieving the rules’ substantive goals while reducing any potential negative economic impact on business resulting from the rules.

REVIEWERS do not edit or modify this section

Management reviewed and edited this section. It was then published with the Public Notice. Do not modify it except to correct typographical errors.

REVIEWERS do not edit or modify this section

Management reviewed and edited this section. It was then published with the Public Notice. Do not modify it except to correct typographical errors.

Management of Empty Ballast Tanks

What need would the proposed rule address?

The need to reduce the invasive species transfer risk associated with residual ballast water and sediments in ‘empty’ ballast tanks that may be used for ballasting and subsequent de-ballasting while in state waters.

How would the proposed rule address the need?

The proposed rule requires vessel operators to conduct a mid-ocean saltwater flush of empty ballast tanks that they want to use for ballasting and subsequent de-ballasting while in port.

How will DEQ know the rule addressed the need?

Mid-ocean saltwater flushing of an empty ballast tank will result in residual water salinity of at least 30 parts per thousand and thereby will significantly reduce the probability for introducing high-risk species to the low-salinity environments of Oregon ports. This minimum salinity criterion can be used for compliance verification purposes.

Retaining Ballast Water Exchange

What need would the proposed rule address?

There are concerns that new management practices established by federal requirements could, under some circumstances, represent a lower efficacy for preventing aquatic invasive species (AIS) transport to low-salinity ports in Oregon than current mid-ocean ballast exchange management practices.

How would the proposed rule address the need?

The rules retain ballast water exchange requirements for a subset of vessel arrivals to Oregon that represent a high risk for transporting AIS.

How will DEQ know the rule addressed the need?

Vessel inspections by DEQ staff, including sampling of ballast tank water for a minimum salinity, provides opportunity to verify compliance with elements of the proposed rule, as well as other ballast management criteria. The ballast water program at DEQ currently has the capacity to inspect approximately 15% of vessel arrivals to Oregon. Inspections are prioritized for vessel arrivals that represent a higher risk for transporting AIS to Oregon waters, such as the vessel arrivals that would be subject to the proposed rule. Compliance verification sampling of vessels subject to the rule, combined with ongoing evaluation of ballast water treatment system efficacy and monitoring for new non-indigenous species in Oregon waters, will inform DEQ’s evaluation of the new rule and a determination of whether it is needed beyond the proposed expiration date in 2025.

Noise Tables

What need would the proposed rule address?

The rules are currently difficult for users to read, interpret and apply because the necessary information contained in tables and reference documents is not published in the same location as the rules.

How would the proposed rule address the need?

The amendments move tables and reference documents from a source that is external to the official published version of the rules and incorporates those documents into the official published version of the rules.

How will DEQ know the rule addressed the need?

The external documents will have been incorporated into the official published version of DEQ’s rules.

REVIEWERS do not edit or modify this section

Management reviewed and edited this section. It was then published with the Public Notice. Do not modify it except to correct typographical errors.

Ballast Water Rules

Lead division

Operations Division

Program or activity

Ballast Water Management

Chapter 340 action

Amend

OAR 340-143-0005, 340-143-0010, 340-143-0050

Statutory authority

ORS 468.020, 783.620 – 783.640

Statute implemented

ORS 783.620 – 783.640

Legislation

House Bill 2207 (2015)

Other authority

Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA - Section 1205) (codified as 16 U.S.C. § 4725)

Documents relied on for rulemaking  

Noise Control Regulations

Lead division

Operations Division

Program or activity

Rulemaking

Chapter 340 action

Amend

OAR 340-035-0015, 340-035-0025, 340-035-0030, 340-035-0035, 340-035-0040, 340-035-0045

Statutory Authority

ORS 467

Statutes Implemented

ORS 467, 467.030.

Documents relied on for rulemaking

None.

REVIEWERS do not edit or modify this section

Management reviewed and edited this section. It was then published with the Public Notice. Do not modify it except to correct typographical errors.

This rulemaking does not involve fees.

REVIEWERS do not edit or modify this section

Management reviewed and edited this section. It was then published with the Public Notice. Do not modify it except to correct typographical errors.

Fiscal and Economic Impact

Ballast Water Rules

This rulemaking amends invasive species prevention practices required of commercial vessels greater than 300 gross tons that intend to discharge ballast water while operating in state waters. Large foreign businesses own and operate the vast majority of affected vessels. The proposed rules do not involve a significant cost of compliance for these foreign businesses and are not expected to have any indirect effects on local businesses that depend on maritime commerce. As proposed, the rules affecting management of empty ballast tanks (340-143-0010) are in essence the same as preexisting federal requirements. And the ‘exchange plus treatment’ requirement is specifically tailored to only target high-risk voyages carrying low salinity ballast water – less than 11% of all vessel arrivals according to DEQ estimates.

Noise Table Rules

This rulemaking makes no wording or substantive change to DEQ’s noise regulations and therefore has no fiscal impact on any person or entity.

Statement of Cost of Compliance  

State and federal agencies  

Ballast Water Rules

This rulemaking will not require additional resources for the Department of Environmental Quality, nor other state or federal agencies.

Noise Table Rules

This rulemaking makes no wording or substantive change to DEQ’s noise regulations and therefore has no fiscal impact on any person or entity.

Local governments

Ballast Water Rules

These rules would not impose a negative economic impact on local governments. Rather, these rules are intended to protect the general public by preventing the introduction of aquatic invasive species which have caused devastating economic impacts for public and private sector entities in other regions of the country.

Noise Table Rules

This rulemaking makes no wording or substantive change to DEQ’s noise regulations and therefore has no fiscal impact on any person or entity.

Public

Ballast Water Rules

These rules would not impose a negative economic impact on the general public. Rather, these rules are intended to protect the general public by preventing the introduction of aquatic invasive species, which have caused devastating economic impacts for public and private sector entities in other regions of the country.

Noise Table Rules

This rulemaking makes no wording or substantive change to DEQ’s noise regulations and therefore has no fiscal impact on any person or entity.

Large businesses - businesses with more than 50 employees

Ballast Water Rules

DEQ does not anticipate any significant economic impact for large businesses operating in Oregon as a result of the proposed rules. The proposed rules do not impose fees or require the use or installation of new equipment or management practices for regulated vessels. For those vessel operators that the proposed rule revisions affect, cost of compliance may involve a minor increase in operational costs of shipboard treatment systems if a bypass option is not available for initial uptake of ballast water, prior to conducting mid-ocean ballast exchange.

Noise Table Rules

This rulemaking makes no wording or substantive change to DEQ’s noise regulations and therefore has no fiscal impact on any person or entity.

Small businesses – businesses with 50 or fewer employees

Ballast Water Rules

DEQ does not anticipate any significant economic impact as a result of the proposed rules. DEQ’s state ballast water management regulations establish a minimum vessel size criteria of less than 300 gross tons with ballast tanks and exemptions for commercial fishing vessels so that no small businesses are subject to these rules. Moreover, the proposed rules do not establish fees or require new operational practices to manage ballast water. Therefore, under normal operational conditions, the rules would not impose significant economic impacts, either directly or indirectly, on any small businesses.

Noise Table Rules

This rulemaking makes no wording or substantive change to DEQ’s noise regulations and therefore has no fiscal impact on any person or entity.

How DEQ involved small businesses in developing this rule

Ballast Water Rules

Large companies headquartered outside of Oregon own greater than 95% of the vessels ORS 783.620 through 783.640 regulate. There are a limited number of local businesses that operate regulated vessels, and those that do (ocean going tug and barge operations) have more than 50 employees. To incorporate a broader perspective on potential economic impacts to other non-regulated businesses, DEQ relied on advisory committee members representing the general maritime industry for Oregon ports. This included representatives from the Port of Portland, the Columbia River Steamship Operators Association, Sause Brothers Ocean Towing, and the Western States Petroleum Association.

Noise Table Rules

This rulemaking makes no wording or substantive change to DEQ’s noise regulations and therefore has no fiscal impact on any person or entity.

Documents relied on for fiscal and economic impact

None.

Advisory committee

DEQ appointed an advisory committee.

As ORS 183.33 requires, DEQ asked for the committee’s recommendations on:

•  Whether the proposed rules would have a fiscal impact,

•  The extent of the impact, and

•  Whether the proposed rules would have a significant impact on small businesses and complies with ORS 183.540.

The committee reviewed the draft fiscal and economic impact statement and its findings are stated in the approved minutes dated 29 February 2016.

did not provide or request additional data to support or refute DEQ’s finding of no significant direct or indirect economic impacts. The committee determined the proposed rules would not have a significant adverse impact on small businesses in Oregon.

Housing cost

Ballast Water Rules

As ORS 183.534 requires, DEQ evaluated whether the proposed rules would have an effect on the development cost of a 6,000-square-foot parcel and construction of a 1,200-square-foot detached, single-family dwelling on that parcel. DEQ determined the proposed rules would have no effect on the development costs because the rules only affect commercial vessels discharging ballast water that had been sourced from outside state water and the changes to regulations do not impose significant changes in operational costs or investment.

Noise Table Rules

As ORS 183.534 requires, DEQ evaluated whether the proposed rules would have an effect on the development cost of a 6,000-square-foot parcel and construction of a 1,200-square-foot detached, single-family dwelling on that parcel. DEQ determined the proposed rules would have no effect on the development costs because the changes to the noise rules are administrative only and have no substantive effect.

REVIEWERS do not edit or modify this section

Management reviewed and edited this section. It was then published with the Public Notice. Do not modify it except to correct typographical errors.

Ballast Water Rules

Relationship to federal requirements

ORS 183.332, 468A.327 and OAR 340-011-0029 require DEQ to attempt to adopt rules that correspond with existing equivalent federal laws and rules unless there are reasons not to do so.

To address risks associated with empty ballast tanks, the proposed rules (OAR 340-143-0010) adopt management requirements that are substantively equivalent to federal requirements established under section 2.2.3.6.3 of the 2013 EPA NPDES Vessel General Permit. Adopting these requirements under Oregon law would facilitate compliance verification inspections and enforcement by DEQ staff. These are functions that EPA generally does not have current capacity for conducting for vessel arrivals to Oregon waters.

Proposed rules to retain ballast water exchange practices for a subset of high-risk vessel arrivals (340-143-0050) would add requirements additional to those in federal requirements for vessels calling on Oregon waters. Instead of being able to forego ballast water exchange practices once a vessel is equipped with a federally approved shipboard treatment system, vessels undertaking high-risk voyages would be required to carry out ballast exchange, in addition to meeting numeric discharge standards. The rules are substantively equivalent, however, to federal requirements established under section 2.2.3.7 of the 2013 EPA NPDES Vessel General Permit. That provision requires vessels entering the Great Lakes to retain ballast water exchange practices.

What alternatives did DEQ consider if any?

Rather, it simply requires that under some voyage conditions, vessel operators are required to conduct ballast exchange, the same management practice that has been required for the past 15 years, in addition to meeting the new federal discharge standards.

In order to adequately protect Oregon waterways from aquatic invasive species introductions, the proposed rules were modeled after the existing regulations that EPA developed for protecting the Great Lakes. Scientific studies have shown that the ‘exchange plus treatment’ strategy is highly effective at protecting freshwater ports from the economic, ecological and human health threats that can be associated with aquatic invasive species. DEQ, in consultation with stakeholders, determined that the strategy adopted for protecting the Great Lakes,

Noise Regulations

Relationship to federal requirements

The proposed amendments make no substantive changes to the rules and therefore do not conflict with or duplicate federal requirements.

What alternatives did DEQ consider if any?

DEQ did not consider any alternatives because the proposed amendments do not make any substantive changes to the rules.

REVIEWERS do not edit or modify this section

Management reviewed and edited this section. It was then published with the Public Notice. Do not modify it except to correct typographical errors.

Land-use considerations

In adopting new or amended rules, ORS 197.180 and OAR 340-018-0070 require DEQ to determine whether the proposed rules significantly affect land use. If so, DEQ must explain how the proposed rules comply with state wide land-use planning goals and local acknowledged comprehensive plans.

Under OAR 660-030-0005 and OAR 340 division 18, DEQ considers that rules affect land use if:

•  The statewide land use planning goals specifically refer to the rule or program, or

•  The rule or program is reasonably expected to have significant effects on:

◦  Resources, objectives or areas identified in the statewide planning goals, or

◦  Present or future land uses identified in acknowledged comprehensive plans

To determine whether the proposed rules involve programs or actions that affect land use, DEQ reviewed its Statewide Agency Coordination plan, which describes the DEQ programs that DEQ determined significantly affect land use. DEQ considers that its programs specifically relate to the following statewide goals:

Goal  Title

 5    Open Spaces, Scenic and Historic Areas, and Natural Resources

 6    Air, Water and Land Resources Quality

 9    Ocean Resources

11  Public Facilities and Services

 16  Estuarial Resources  

Statewide goals also specifically reference the following DEQ programs:

•  Nonpoint source discharge water quality program – Goal 16

•  Water quality and sewage disposal systems – Goal 16

•  Water quality permits and oil spill regulations – Goal 19

Determination

DEQ determined that these proposed rules do not affect land use under OAR 340-018-0030 or DEQ’s State Agency Coordination Program.

Advisory committee

Background

DEQ convened the Ballast Water Rulemaking 2016 advisory committee. The committee included representatives from local and regional maritime industry entities, advocacy groups, research institutions, and state, regional and federal agencies. The committee met four times between December 2015 and March 2016, and held a fourth meeting in October 2016 during the final open public comment period. The committee’s web page is located at: http://www.oregon.gov/deq/RulesandRegulations/Pages/Advisory/ballast2016.aspx

The committee members were:

Meeting notifications

To notify people about the advisory committee’s activities, DEQ:

•  Sent GovDelivery bulletins, a free e-mail subscription service, to the following lists:

◦  On 10/5/16 and 1/12/16 DEQ sent notice to members of the Shipping Transport of Aquatic Invasive Species Task Force subscribers to describe how to sign up for advisory committee meeting notices, and

◦  People who signed up for the advisory committee bulletin.

•  Added advisory committee announcements to DEQ’s calendar of public meetings at DEQ Calendar.

•  On 1/13/16, 2/17/16, and DEQ provided news release statements announcing advisory committee meeting details

•  On 1/13/16 and 2/17/16 DEQ provided notice of meetings and links to committee information through postings on Facebook and Twitter.

Committee discussions

In addition to the recommendations described under the Statement of Fiscal and Economic Impact section above, the committee devoted a significant proportion of its time to discussing the ballast exchange plus treatment proposal. The advisory committee, as well its precursor the 2014 Task Force on Shipping Transport of Aquatic Invasive Species) played an instrumental role in identifying a solution that is practicable within the broad framework of global shipping but also locally tailored to address targeted threats to local resources. Specifically, the committee guided the determination to adopt an ‘exchange plus treatment’ model based off of the EPA Vessel General Permit for the Great Lakes, rather than more stringent models that have been adopted or proposed in other jurisdictions. Generally, committee members representing maritime industry interests believed that the ‘exchange plus treatment’ strategy proposed here only needs to be required of voyages representing a high-risk for introducing AIS to Oregon waters which is approximately 10.7% of arrivals and does not need to be applied to all vessel operators discharging ballast. Some other jurisdictions have adopted this strategy.

Although regional consistency is an important guiding objective for most advisory committee members, the committee was recognized that the predominance of low-salinity ports in Oregon compared to neighboring states provides greater incentive for Oregon to take the initiative to first establish a model regulatory solution for these circumstances. Both Washington, for the Columbia River, and California, for the Sacramento River, have suggested that they will be looking to adopt rules that are substantively comparable to what has been developed for this rulemaking effort.

Moreover, the committee’s participation was important in developing detailed exemptions that will make the regulations more adaptable to rapidly evolving shipboard treatment technologies.

In order to facilitate further discussion and full transparency with all stakeholders, DEQ convened a fourth meeting on 10 October during the final open public comment period. This meeting provided an opportunity for DEQ to identify revisions to the proposed rules that were being considered based on comments received during earlier public comment periods, and for all stakeholders to identify their support or concerns. In particular, the advisory committee was able to further discuss individual members positions on the BWE+BWT proposal and specific elements related to defining criteria, exemptions, sunset date, and regional coordination with neighboring states. In addition, DEQ was able to present results from a re-analysis of anticipated vessel arrivals that would be affected by the proposed rule (at the request of industry representatives during the second public comment period), using updated and more robust data sets that had recently become available. These results showed that an estimated 8.8% of vessels arrivals to Oregon may be subject to the BWE+BWT requirement: less than the 10.7% estimated in earlier analyses. It is also important to note that the modeled data used for the updated analysis is highly conservative in estimating which San Francisco Bay ports may have low-salinity conditions where uptake of ballast may be subject to the proposed rule. As a result, the percentage of vessels affected is likely to be less than 8.8%.

Meeting minutes and recordings are available by request from DEQ or from the advisory committee webpage at: http://www.oregon.gov/deq/RulesandRegulations/Pages/Advisory/ballast2016.aspx

EQC prior involvement

DEQ shared general information with EQC about this rulemaking proposal in the monthly Director’s Report for the August 2016 EQC meeting in Boardman, Oregon.

DEQ did not present additional information specific to this proposed rule revision.

Public Notice

DEQ provided notice of the Notice of Proposed Rulemaking with Public Hearing by:

•  Filing with Secretary of State for publication in the May 1, 2016 Oregon Bulletin

•  Posting notice on the rulemaking web page: Ballast Water 2016 Rulemaking Web Page

•  Emailing 7566 interested parties on the Agency Rulemaking, DEQ Public Notices and Ballast Water Management mailing lists through GovDelivery

•  Issuing a press release

•  Emailing the following key legislators:

◦  Sen Edwards (as Chair of Environment and Natural Resources Committee)

◦  Rep Witt (as Chair of Agriculture and Natural Resources Committee)

◦  Sen Roblan (as 2014/15 legislative liaison to STAIS task force)

◦  Rep McKeown (as 2014/15 legislative liaison to STAIS task force)

In addition, notice of subsequent re-opening of public comment periods in June and September were provided by:

•  Posting notice on the rulemaking web page: Ballast Water 2016 Rulemaking Web Page

•  Emailing 7566 interested parties on the Agency Rulemaking, DEQ Public Notices and Ballast Water Management mailing lists through GovDelivery

•  Issuing a press release

Request for other options

During the public comment period, DEQ requested public comment on whether to consider other options for achieving the rules’ substantive goals while reducing the rules’ negative economic impact on business. This document includes a summary of comments and DEQ responses.

Public hearings

DEQ held public hearing. DEQ received no public comments at the hearing. Later sections of this document include a summary of the 49 comments received during the open public comment period, DEQ’s responses, and a list of the commenters. Original comments are on file with DEQ.

Presiding Officers’ Record

Hearing 1

Presiding Officer: Rian vanden Hooff

The presiding officer convened the hearing, summarized procedures for the hearing, and explained that DEQ was recording the hearing. The presiding officer asked people who wanted to present verbal comments to sign the registration list, or if attending by phone, to indicate their intent to present comments. The presiding officer advised all attending parties interested in receiving future information about the rulemaking to sign up for GovDelivery email notices.

As Oregon Administrative Rule 137-001-0030 requires, the presiding officer summarized the content of the rulemaking notice.

DEQ added all names and affiliations of hearing participants who presented testimony to the commenter section of this staff report. The commenter list includes a cross reference to the hearing number. DEQ added all written and oral comments presented at each hearing to the summary of comments and agency responses section of this staff report.

Public comment period(s)

DEQ accepted public comments on the proposed rulemaking during three comment periods: between 15 April and 25 May; 20 June and 08 July; and 07 September and 24 October. A summary of the 49 comments received, DEQ’s responses, and a list of the commenters is available in the following sections. Original comments are on file with DEQ.

Summary of comments and DEQ responses

Sixteen commenters provided 48 individual comments during the open public comment periods. The comments have been organized into 11 categories, with cross references to commenter numbers (identified in a table in the next section). DEQ’s response follows the summary. Original comments are on file with DEQ.

1.  Comment 1  General response to DEQ’s substantive goal of preventing the transfer of non-indigenous species to Oregon by retaining ballast water exchange management requirements, in addition to the use of ballast water treatment systems required under new federal ballast water discharge standards (under 340-143-0050(2)).

DEQ received comments in this category from all 16 commenters identified in the Commenters table below.

Commenters #1,2,3,5,6,7,8,9,10,11,12,13, and 14 support the rationale and justification to maintaining mid-ocean ballast water exchange practices by vessels discharging ballast to low-salinity ports in Oregon, in addition to use of shipboard ballast water treatment systems required to meet new federal ballast discharge standards. Multiple commenters noted the economic and ecological threats posed to Oregon and regional watersheds by aquatic invasive species, and concerns that new federal discharge standards have not been shown to be an adequately protective strategy for freshwater ports such as those that are common to Oregon.

Commenters #4, 15, and 16 argue that BWE+BWT is unwarranted at this time and have questioned whether sufficient proof exists to demonstrate that it will have appreciable benefits. These commenters are concerned that the proposed rule would establish an inconsistent regulatory framework that could discriminate against Oregon’s maritime industry. Due to concerns over consistency with other west coast ports or with BWE+BWT policies already established in the Great Lakes and East Coast regions, the commenters would prefer that DEQ postpone rulemaking efforts until after finalization of the next EPA Vessel General Permit in December 2018.

Response:  DEQ agrees with the majority of commenters that retaining exchange requirements for high-risk ballast discharge transfer to Oregon is a practical strategy for achieving invasive species prevention levels that are necessary beyond what is currently available if the state were to rely on the new federal policies, alone. …and as such recommends that the EQC adopt rules in response to federal policy changes that could represent a step backwards in invasive species prevention strategies under some circumstances…and pose and increased threat state waters from invasive species.

DEQ disagrees with the suggestion that BWE+BWT is unwarranted for protecting Oregon waters at this time.

2.  Comment 2  Determination for which vessel ballast tanks or voyages are affected by the BWE+BWT proposal under 340-143-0050(2) based on salinity of ballast water uptake at source location.

DEQ received seven comments in this category from commenters #1, 2, 4, 9, 13, 15, and 16 identified in the Commenters table below.

Commenters #1, 2, 9, and 13 suggest that DEQ should revise the proposed rule to be more protective of Oregon waters by requiring BWE+BWT for all ballast discharge to state waters, regardless of source water salinity conditions. This alternative model for BWE+BWT implementation has been adopted by various states under their 401 certification conditions to the 2013 EPA Vessel General Permit (MA, MI, MN, NY, RI, and WI), and these commenters suggest a comparable strategy should be adopted by Oregon. Moreover, commenters suggest that this model simplifies enforcement and vessel operator implementation by eliminating potential confusion over salinity conditions at source and discharge locations.

Commenters #4, 15 and 16 suggest that if DEQ is unwilling to delay implementation of BWE+BWT that it should be done in a manner that only applies to vessels that have taken on ballast with salinity less than 18 parts per thousand and is therefore consistent with BWE+BWT regulations established by EPA under the 2013 Vessel General Permit for vessels voyaging into the Great Lakes.

Response:  DEQ declines to apply exchange – in addition to treatment – requirements for all ballast discharged to Oregon waters and has retained the proposed criteria which is the prefered alternative of commenters #4, 15, and 16.

3.  Comment 3  Determination for which vessel ballast tanks or voyages are affected by the BWE+BWT proposal under 340-143-0050(2) based on location where ballast water discharge occurs within Oregon waters.

DEQ received comments in this category from commenters #1, 2, 3, 4, 7, 9, 13, 15, and 16 identified in the Commenters table below.

Commenters #4, 15, and 16 requested that if DEQ is unwilling to delay rulemaking that the final rule provide greater specificity for locations where vessel operators discharging ballast to Oregon waters may be subject to the exchange – in addition to treatment - requirement. Specifically, they would prefer that waters of the state be more narrowly constrained to freshwater and low-salinity locations that are specified in rule by specific ports and river mile markers.

Commenter #1,2,9 and 13 generally indicate a preference for applying BWE+BWT requirements to all ballast discharge to Oregon, regardless of receiving port salinity conditions. Comments from these entities and others during the advisory committee discussions suggested that if greater specificity of rule language is necessary than it should be based on salinity conditions at the time and location of discharge, not on river mile markers, because fixed locations experience wide ranging salinity variability due to tides and seasonality of river discharge.

Response:   DEQ revised proposed rule ……..Per comments received under category #1 and the general tenor of advisory committee discussions, the rationale for retaining ballast exchange management practices – in addition to meeting new treatment standards– is deemed to be a strategy particularly suited for protecting low-salinity ports.

There is not practicaly difference in the affect of the proposed rule compared to the additional specificity requested by commenters 4, 15, and 16 because essentially all commercial vessel ballast discharge activity in Oregon occurs to low-salinity environments of the Columbia River and Coos Bay. Based on vessel operational practices and ballast discharge management data reported to the state, DEQ does not expect that any fewer (or more) vessels would be affected by the exchange – in addition to treatment – portion of the rule regardless of whether it applies to all state waters or whether the rule specifies geographical areas within the state where low-salinity conditions exist.

Although the proposed rule would require BWE+BWT for ballast discharge of any ballast that had been sourced outside the region from low-salinity conditions… According to information provided to DEQ by industry representatives, discharge of ballast to Oregon waters from regulated commercial vessels occurs to low-salinity environments (i.e. < 18 parts per thousand) under almost all circumstances.

4.  Comment 4  Suggested changes to the proposed rule that are technical or editorial in nature aimed at greater clarity of the final rule.

DEQ received comments in this category from commenters #6, and 10 identified in the Commenters table below.

Commenter #6 provided word choice and sentence structure suggestions including….

Commenter #10 provided word choice and sentence structure suggestions including: using ‘must’ rather than ‘shall’; using ‘before’ rather than ‘prior to’

Response:  DEQ changed the proposed rule according to most of the suggested revisions after determining that none of the suggestions would have substantive impact on the effect of the rule. In particular, DEQ wanted to accommodate requested changes by commenter #6, where appropriate, in order to further facilitate coordination of consistent regulations between states managing shared waters of the Columbia River.

5.  Comment 5  Recommends providing greater specificity under OAR 340-143-0050(2)(c) for exemptions to the exchange portion of the rule.

DEQ received comments in this category from commenters #4, 7, and 16 identified in the Commenters table below.

Commenter #4 and 16 suggest that if DEQ is unwilling to delay implementation of OAR 340-143-0050(2) that DEQ should further clarify language to ensure that exemption allowances are provided for circumstances where exchange is incompatible with proper use of treatment systems due to vessel design or system configuration. In these cases, vessel operators should be exempt from the exchange portion of the rules management requirements.

Commenter #7 suggested that DEQ revise exemption language to ensure that exchange not be required under some voyage circumstances where exchange, in addition to treatment, could result in the inadvertent discharge of toxic biocides to Oregon waters.

Response:  DEQ has revised the proposed rule in order to address the concerns raised by all commenters in this comment category. Rather than relying solely on existing safety exemption criteria already established under OAR 340-143-0040(2), DEQ has provided additional exemption specificity. DEQ agrees that there may be some circumstances under which ballast treatment system design specifications or piping configurations are not compatible with conducting exchange prior to treatment. DEQ also recognizes that there may be some treatment systems that require biocide deactivation times that are longer than would be feasible for normal vessel operations under a short voyage to an Oregon port. In order to prevent this rule from causing economic impacts due to delayed operations – or from causing inadvertent discharge of active biocides to waters of the state – DEQ agrees with commenter #7 that additional exemption criteria are warranted. Similar to current options for vessel operators to request safety exemptions from ballast management requirements, requests for exemptions under circumstances specific to 340-143-0040(2)(c) will need to be submitted to DEQ for review and approval prior to discharge.

6.  Comment 6  Recommendations regarding the appropriate timeline for repealing the BWE+BWT rule proposed under OAR 340-143-0050(2) and suggestions that the rule be repealed earlier based on potential actions or inactions by other jurisdictions (EPA, California, or Washington State).

DEQ received comments in this category from commenters #4, 15, and 16 identified in the Commenters table below.

Commenter #4 noted that if DEQ is unwilling to delay implementation of OAR 340-143-0050(2) that DEQ should repeal the rule in accordance with the EPA re-issuing a new Vessel General Permit in December 2018.

In response to advisory committee discussions during subsequent re-opened comment periods where DEQ noted inadequate rationale to justify a repeal date in less than two years (but a willingness to shorten the sunset date to be in alignment with the 2023 VGP re-issuance), commenters #16 supports revising the repeal date effective December 2023. However, commenters #15 and 16 also recommended further contingencies that would repeal the rule earlier if the EPA 2018 VGP failed to continue BWE+BWT requirements for vessels operating in the Great Lakes, or if California and Washington State fail to implement comparable policies before December 2018.

Response:  DEQ has revised the repeal date for the proposed rule. In response to commenters #4, 15, and 16 request that the repeal data be aligned with 5-year timelines for re-issuance of the EPA Vessel General Permit, DEQ has agreed to decrease the time period for which exchange plus treatment may be required: repealing the rule in December 2023 rather than January 2025.

Establishing rules that are contingent upon activities in other jurisdictions is problematic for implementation, may cause considerable confusion, and not advised according to Department of Justice review. DEQ will be closely monitoring developments of the 2018 EPA Vessel General Permit and throughout the west coast region. If new evidence or developments suggest that BWE+BWT is no longer practicable or Oregon maritime industry interests are at significant risk as a result of the proposed rules, DEQ may pursue rulemaking efforts towards an earlier repeal date. Alternatively, if DEQ fails to respond to such hypothetical circumstances, other parties may petition EQC for a rule change. As such, DEQ does not agree with the need for additional repeal date criteria and has not provided additional revisions to be contingent upon the actions of EPA, California and Washington State.

7.  Comment 7  Support for saltwater flushing requirements of ‘empty’ ballast tanks that will be used for ballasting and subsequent de-ballasting while in state waters.

DEQ received six comments in this category from commenters #3, 5, 6, 7, 12, and 13 identified in the Commenters table below.

All six commenters indicate support for the proposed rule.

Response:  DEQ agrees with and appreciates the comments in support of this proposed rule.

8.  Comment 8  Expressing concerns that the absence of rules in Washington State identical to those proposed under OAR 340-143-0050(2) could result in competitive disadvantage circumstances for Oregon maritime industry port facilities.

DEQ received two comments in this category from commenters #4 and 15 identified in the Commenters table below.

Commenters #4 and 15 suggest that proposed rules under 340-143-0050(2) could discriminate against Oregon’s maritime industry unless DEQ postpones rulemaking efforts until it can be assured that neighboring jurisdictions will adopt comparable regulations. They suggest that ocean going vessel operators calling upon the Columbia River may be confused by a regulatory requirement that is established by Oregon but not Washington, or that vessels may opt to load cargo from facilities on the Washington side of the river rather than the Oregon side in order to

Response:  Ballast water programs of west coast states have developed in close coordination over the past 16 years. On multiple occasions, new ballast water management policies were first developed by stakeholder input and close coordination of state regulators and facilitated by regular meetings of the Pacific Ballast Work Group (PBWG). Then, one state adopts the model regulation that can be essentially copied by other jurisdictions for the sake of achieving regional consistency. We have proceeded in a similar manner in this case, but instead of California or Washington being the first to adopt, Oregon is the state with much more at stake with respect to protecting low-salinity port environments. Over 95% of ballast discharged to Oregon waters by commercial vessels occurs to ports with surface salinity values below 18 parts per thousand. In contrast it is less than 50% for Washington State and less than X% for California. Thus, Oregon is more susceptible and focused on new federal policies that could put low-salinity ports at increased risk than its neighboring states.

Neighboring states have been closely engaged with Oregon’s efforts to develop a regulatory solution aimed at protecting low-salinity ports, and have signaled their intent (commenters #3 and #5) to adopt comparable regulations for their low-salinity ports after regulations have been adopted by Oregon. For Washington State, that would mean adopting regulations that establish consistency with these proposed rules for vessels operating on the shared waters of the Columbia River.

In order to ensure adequate awareness amongst vessels that may need to continue conducting BWE – in addition to implementing BWT – if they are calling on the Columbia River, DEQ aims to implement aggressive outreach communications with….. Also, WDFW …..

9.  Comment 9  Recommends that DEQ provide more detailed information to support its estimate of the voyages and estimated vessel arrivals per year to Oregon that may be affected by proposed rule under OAR 340-143-0050(2). Specifically, the assertion that DEQ may be under estimating the number of vessels affected.

DEQ received one comment in this category from commenter #4 identified in the Commenters table below.

Commenter #4 requested a more detailed list of global ports where salinity is below the 18 part per thousand threshold and suggested that the inclusion of ports from upper San Francisco Bay may increase the estimate of voyages affected beyond the 10% per year that had been originally forecasted by DEQ.

Response:  DEQ……conducted a new analysis using more robust data sources….showed decrease in number of vessels per year that would be likely to be affected. These numbers are likely to be more conservative because they included modeled salinity data for global ports that were deemed to underestimate surface salinity values at some ports in California where ballast is occasionally sourced before being discharged to Oregon waters.

10.  Comment 10  Recommends that DEQ remove ballast water discharge prohibition exemptions under OAR 340-143-0010(2)(d) which allow vessels transferring ballast within our ‘common water zone’ (as defined under OAR 340-143-0005(4) to do so without undertaking ballast management practices aimed at reducing the risk of transferring invasive species between ports.

DEQ received one comment in this category from commenter #13 identified in the Commenters table below.

Commenter #13 suggests that ballast water sourced from ports in close geographical proximity to Oregon should not be exempt from risk-reduction management practices. Specifically, they note that the movement of invasive species is not restricted by state boundaries or other arbitrary lines, and that the transfer of unmanaged ballast water from Vancouver B.C or ports in northern California poses a threat for introducing invasive species that are established in those locations but not yet established in Oregon.

Response:  This is an issue outside the scope of the topics discussed by the rulemaking advisory committee or proposed under the Notice of proposed rulemaking and as such DEQ will decline to address it in the final rule.

11.  Comment 6  Recommends that in addition to revising rules regarding implementation of shipboard ballast water treatment systems under OAR 340-143-0050, DEQ should also propose rules addressing the use of onshore or barge-based ballast water treatment systems.

DEQ received one comment in this category from commenter #13 identified in the Commenters table below.

Commenter #13 expressed concerns that the proposed rules do not address the use of onhore or barge based treatment systems. Even though no facilities or operations of this variety have been proposed in Oregon as a practicable means of managing ballast water and preventing the introduction of invasive species, there are active discussions in other countries and the commenter feels that Oregon should anticipate this as a potential option to manage contaminated ballast water in the future.

Response:  DEQ is monitoring developments related to the feasibility and practicability of alternative approaches to achieving sufficiently protective ballast discharge standards, including the potential for shore-based or barge-based treatment strategies. At this time, however, there are no active proposals for this type of activity in Oregon for which DEQ could evaluate as a basis for rule development. Moreover, rules governing these facilities would likely be addressed by under wastewater management facility permitting processes and not under ballast water management regulations governing commercial vessels incidental discharge to waters of the state. Therefore, DEQ has determined that this issue is outside the scope of this rulemaking effort and it is not addressed in the revised rule.

Commenters

Comments received by close of public comment period

The table below lists 16 commenters (representing 918 people or organizations) that provided comments about the proposed rules during public comment periods. Original comments are on file with DEQ.

Notification

The proposed rules would become effective upon filing on approximately DATE mmm, dd, yyyy. DEQ would notify affected parties by:

Describe Notification (PARTIES AND METHOD USED TO PROVIDE NOTICE)

Compliance and enforcement

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Measuring, sampling, monitoring and reporting

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Systems

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Five-year review  ORS 183.405

Requirement  

Oregon law requires DEQ to review new rules within five years after EQC adopts them. The law also exempts some rules from review. DEQ determined whether the rules described in this report are subject to the five-year review. DEQ based its analysis on the law in effect when EQC adopted these rules.

Exemption from five-year rule review

The Administrative Procedures Act exempts all of the proposed rules from the five-year review because the proposed rules would amend or repeal an existing rule. ORS 183.405(4).

DELETE THIS PARAGRAPH IF NO RULES ARE SUBJECT TO FIVE YEAR REVIEW:

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Maggie 5/1/2012

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HOOFF Rian, 2016-11-22T16:08:00Z
Review this in comparison to EQC info item document, Directors Dialogue/emails, etc.