Judge: EPA Must Control Ballast Discharges By 2008
Dan Egan
Milwaukee Journal Sentinel
09/20/2006
The Great Lakes in the last century was Ohio's Cuyahoga River catching fire in 1969.
The blaze in the Lake Erie tributary spurred an embarrassed nation to pass the 1972 Clean Water Act, which led to sweeping pollution rules that dramatically improved water quality across the country, including the Great Lakes, long a dumping ground for Midwest industry.
This week, something else caught fire: the idea that the bugs, critters and fish spilling into U.S. waterways from overseas freighters are not merely an aquatic nuisance, but a form of biological pollution that must be regulated just like any other noxious substance spewing from a pipe or a smokestack.
A federal district judge in northern California ruled Monday that in 2008, the Environmental Protection Agency must begin regulating contaminated ballast water discharges from freighters under the Clean Water Act, something the agency has refused to do since the 1970s. The case was initially brought by a coalition of West Coast environmental groups that were later joined by six Great Lakes states, including Wisconsin.
Judge Susan Illston acknowledged that her order may have a "dramatic effect" on both the shipping industry and the EPA. Yet the plaintiffs argued that doing nothing could have its own dramatic results, and the judge evidently agreed.
The Great Lakes alone are now home to at least 182 non-native species. A new one is found, on average, every 6.5 months, and scientists blame overseas ships plying the St. Lawrence Seaway for nearly 70 percent of the invaders that have arrived since 1970.
'This is a good decision, for both taxpayers and the environment," said Timothy Hoffman, assistant attorney general for the state of New York. "The court points out that (contaminated ballast water) is one of the most costly forms of pollution going on. The amount of money involved is tremendous."
Just one of those seaway invaders -- the pipe-clogging zebra mussel -- has been blamed for about $2 billion in damage to water-dependent industry and utilities since it was discovered in the Great Lakes in the late 1980s.
The EPA has long resisted getting its hands dirty with the ballast water issue, pointing to its own rule that exempts itself from regulating the shipping industry under the Clean Water Act for discharges that are "incidental to the normal operation of a vessel." Ballast water is used to steady ships in open seas and is often discharged when ships arrive in port to take on a load of cargo.
Illston, however, ruled that regulation, even if it has been in place for more than three decades, is "plainly contrary to the congressional intent" of the Clean Water Act, a law that has the overarching goal "to restore and maintain the chemical, physical and biological integrity of the nation's waters."
'There is no dispute that invasive species have been, and continue to be, introduced into the marine ecosystems of this country through ballast water discharges," Illston wrote in her 21-page ruling. "There is also no dispute over the consequences that their introduction can have on the environment."
She gave the EPA until Sept. 30, 2008, to end its ballast water exemption for the shipping industry, a longer grace period than the plaintiffs had requested, but one they said on Tuesday was reasonable, given the complexity of the issue.
Plaintiffs' attorney Deborah Sivas said she believes the California ruling will be effective nationwide, though she said she expects the EPA to disagree. She also expects the EPA to appeal the ruling.
EPA officials could not be reached for comment.
'Empty' tanks full of life
Existing federal law, administered by the U.S. Coast Guard, now requires overseas ships headed for the Great Lakes to exchange their ballast water in mid-ocean to expel any unwanted organisms, but a loophole exists: Most overseas ships arrive in the Great Lakes loaded with cargo. They carry no ballast water and are therefore not subject to the rules.
