WSR 08-15-179

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed July 23, 2008, 11:56 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 07-15-034.

Title of Rule and Other Identifying Information: WAC 220-77-090 Ballast water management and control -- Reporting and sampling requirements, and 220-77-095 Interim ballast water standard approval process.

Hearing Location(s): Icicle Village Resort, 505 Highway 2, Leavenworth, WA 98826, on November 7-8, 2008, at 8:45 a.m.

Date of Intended Adoption: December 12-13, 2008.

Submit Written Comments to: Rules Coordinator, 600 Capitol Way North, Olympia, WA 98501-1091, e-mail preuslmp@dfw.wa.gov, phone (360) 902-2930, fax (360) 902-2155, by October 31, 2008.

Assistance for Persons with Disabilities: Contact Susan Yeager by October 31, 2008, TTY (360) 902-2207 or (360) 902-2267.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose is to implement E2SSB 5923 (chapter 350, Laws of 2007), "aquatic invasive species," which revised and added new ballast water management statutes under chapter 77.120 RCW.

Specific impacts on WAC 220-77-090 include: Subsection (1), clarify which vessels are affected and who they must submit reports to; subsection (2), implement the department form letter for waiver that must be signed; subsection (4), delete expired requirement to file interim report for exchange management; replace with new subsection on how/when to claim safety exemption; subsection (5), add a new subsection on department review of safety exemption claims, including determining if a compliance plan or alternative strategy are required, and imposing a minimum $500 administrative filing fee; and subsection (6), add a new subsection providing the process for assessing civil penalties up to a new maximum of $27,500.

Specific impacts on WAC 220-77-095 include: Subsection (2), add language to clarify intent; subsection (3), add a new subsection by splitting former subsection (2) to delete the treatment technology evaluation process; replace requirements for approval; subsection (3)(b), add a new paragraph identifying the department of ecology's role in approvals; subsection (3)(e), revise the language to simplify determination options; and subsection (3)(i)(iv) [(3)(g)(iv)], add a new paragraph for a savings clause.

Statutory Authority for Adoption: RCW 77.120.030, 77.120.040, 77.120.070, 77.12.047.

Statute Being Implemented: RCW 77.120.030, 77.120.040, 77.120.070, 77.12.047.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Washington department of fish and wildlife, governmental.

Name of Agency Personnel Responsible for Drafting: Allen Pleus, 1111 Washington Street, Olympia, (360) 902-2724; Implementation: Lew Atkins, 1111 Washington Street, Olympia, (360) 902-2651; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, (360) 902-2373.

A small business economic impact statement has been prepared under chapter 19.85 RCW.

Small Business Economic Impact Statement

1. Description of the Reporting, Record-keeping, and Other Compliance Requirements of the Proposed Rule: No new reporting or record keeping is required. One previously required report deleted (previous WAC 220-77-090(4) Interim report for implementing 2007 ballast water exchange program). Ballast water reporting form (BWRF), request for BWRF waiver, and interim treatment technology approval process are carry-overs from previous requirement.

New compliance plan and alternative strategy documents MAY be required at department discretion for minor number of vessels claiming safety exemptions. Out of an average four thousand vessel visits per year, only three per year claiming a safety exemption and only two of those are due to vessel design limitations or equipment failure that would/may require the vessel operator submit a compliance plan or alternative strategy document.

2. Kinds of Professional Services That a Small Business is Likely to Need in Order to Comply with Such Requirements: Compliance plans MAY benefit from contracting with a marine engineer to rectify equipment limitation or failure issues in those circumstances.

3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: New fees for filing safety exemption. The department must assess a minimum $500 fee on vessels claiming a safety exemption as with expected frequency as noted in #1 above, and as required by RCW 77.120.030 (4)(a).

No new costs for equipment, supplies, or labor expected.

4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? No new impacts to sales or revenue expected. Current statute laws require that vessels arriving from out of state exchange ballast water at least fifty nautical miles from nearest shore. This may increase voyage time affecting fuel costs and overall schedules.

5. Cost of Compliance for the 10% of Businesses That are the Largest Businesses Required to Comply with the Proposed Rules Using One or More of the Following as a Basis for Comparing Costs:

a. Cost per employee: None.

b. Cost per hour of labor: None.

c. Cost per one hundred dollars of sales: None.

$500 fee for safety exemptions is small cost based on frequency of anticipated application and as compared to overall shipping business expenses.

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for Not Doing So: The department developed proposed rules in consultation with its ballast water work group consisting of state and federal agencies, tribal governments, affected industries, environmental organizations, academia, and technical interests.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: The department will continue to consult with the ballast water work group to minimize small business impacts.

8. A List of Industries That Will Be Required to Comply with the Rule: Shipping industry - vessels equal to or over three hundred gross tons.

A copy of the statement may be obtained by contacting Lori Preuss, Rules Coordinator, 600 Capitol Way North, Olympia, WA 98501-1091, phone (360) 902-2930, fax (360) 902-2155, e-mail preuslmp@dfw.wa.gov.

A cost-benefit analysis is not required under RCW 34.05.328. These proposals do not affect hydraulics.

July 23, 2008

Loreva M. Preuss

Rules Coordinator

OTS-9874.6


AMENDATORY SECTION(Amending Order 06-35, filed 3/2/06, effective 4/2/06)

WAC 220-77-090   Ballast water management and control -- Reporting and sampling requirements.   (1) Vessels ((which)) that are subject to chapter 77.120 RCW ((and which intend to discharge ballast water into Washington state waters)) must report ballast water management information to the department at least twenty-four hours prior to entering Washington waters, by filing a ballast water ((report)) reporting form pursuant to Title 33 C.F.R. Part 151.2045 ((with the department's designated agents as follows:

(a) Vessels bound for Puget Sound or coastal ports must file their ballast water reporting form with the Marine Exchange of Puget Sound in Seattle. Forms must be submitted by fax or in electronic format.

(b) Vessels bound for Washington ports on the Columbia River must file their ballast water reporting form with the Merchants Exchange of Portland. Forms must be submitted by fax or in electronic format)). Forms must be submitted to the department in electronic format (preferred) to ballastwater@dfw.wa.gov, or by fax to 360-902-2845.

Vessel owners and operators who rely on a third party to collect and forward ballast water reporting forms are responsible for ensuring that the department receives the ballast water management information as required in this subsection.

(2) Vessels not intending to discharge ballast water into Washington state waters shall notify the department in one of the following ways:

(a) ((Vessel operators)) Owners or operators of one or more vessels who do not wish to file a ballast water reporting form may send a signed form letter, as provided by the department and at least thirty days prior to entering Washington waters, to the department by e-mail at ballastwater@dfw.wa.gov; by fax at 360-902-2845; or by U.S. mail to the state ANS coordinator((,)) at Department of Fish and Wildlife, 600 Capitol Way No., Olympia, WA 98501-1091((, which)). The signed letter must include((s)) the following information:

(i) Vessel name(s), identification number(s) (International Maritime Organization, Lloyds of London, or U.S. Coast Guard registry number), owner, agent, and vessel type(s); and

(ii) A statement that the vessel will not discharge ballast water into Washington state waters; and

(iii) The signature of the owner, operator, or other authorized representative.

(b) Vessels that would normally discharge ballast water, but will not discharge on ((any given)) a particular trip((, may continue to file the)) and are not covered under the requirements of (a) of this subsection, must file a ballast water reporting form((, with "not discharging" written in the ballast water history)) as described in subsection (1) of this section.

(3) The department, or designated representatives, may at reasonable times and in a reasonable manner((,)) during a vessel's scheduled stay in port, take samples of ballast water and sediment, ((may)) examine ballast water management records, and ((may)) make other appropriate inquiries to assess the compliance of vessels with ballast water reporting and control requirements.

(((4) Interim report for implementing 2007 ballast water exchange program.

(a) All vessels subject to chapter 77.120 RCW that enter Washington waters after July 1, 2007, will be prohibited from discharging ballast water under the safety exemptions to the ballast water exchange program. In order to implement the 2007 program, vessel information is required to be on file with the department prior to July 1, 2006.

(b) All vessels subject to chapter 77.120 RCW that enter Washington waters after July 1, 2006, are required, prior to July 1, 2006, to file a Washington State Interim Ballast Water Management Report Form on the report form provided in (d) of this subsection.

(c) A vessel subject to chapter 77.120 RCW that enters Washington waters after July 1, 2006, and for which the vessel owner has not submitted a Washington State Interim Ballast Water Management Report Form is subject to a five hundred dollar reporting penalty.

(d) Washington State Interim Ballast Water Management Report Form and Instructions:


Completion Instructions For:

Washington State Interim Ballast Water Management Report Form


(Please type in English)


SECTION 1. OWNER/OPERATOR

Vessel(s) Owner Information: Write in the name of the registered owner(s) of the vessel. If under charter, enter Operator name. Also provide mailing address.

Responsible Party Information: Print the person's name, company and contact information (current phone number and e-mail) of the person responsible for administering the management plan described below.


SECTION 2. FLEET INFORMATION

Vessel Name: Print the name of each vessel covered by this management report. A separate report is required for vessels that will use different methods of ballast management. For example: Five vessels may be listed in one report that are going to use the same type of ballast treatment system. A separate report would be required for another five vessels that intend to use ballast exchange and retaining ballast onboard as a management option.

Existing Vessel or New Build: Fill in "Existing Vessel" if this is an existing vessel currently in operation. Fill in "New Build 1," "New Build 2" etc., for vessels that are in a design or new construction phase, but not yet in operation.

IMO Number: Fill in identification number of the vessel used by the International Maritime Organization.

Type: List specific vessel type. Use the following abbreviations: Bulk (bc), roro (rr), container (cs), tanker (ts), passenger (pa), oil/bulk ore (ob), general cargo (gc), reefer (rf). Write out any additional vessel types.

GT: What is the Gross Tonnage of the vessel?

Ballast Capacity: What is the maximum volume of ballast water used when no cargo is on board? Please include volume units in m3.


SECTION 3. BALLAST MANAGEMENT COMPLIANCE PLAN (2007)

a. Retaining ballast: Check yes or no to indicate if the vessel's ballast management plan considers retaining some or all ballast on board when in Washington state waters.

b. Local waters: Check yes or no to indicate if the vessel's ballast management plan includes the discharge of water that originated solely within local waters.

c. Ballast exchange: Check yes or no to indicate whether the vessel's ballast management plan will include ballast exchange.

d. If unable to exchange: Safety exemptions will no longer be an acceptable management option in Washington state waters after July 1, 2007. Vessel operators that are using ballast exchange should describe how they will manage ballast discharges into Washington state waters if unable to conduct a safe exchange at sea.

e. Ballast Treatment System: Vessel operators that intend to use a ballast treatment system as a ballast management option should complete subsections f. through l.

Note: Dates supplied within subsections h. through k. can be estimated. Additional Comments under subsection l. are optional.


FOOTER. SIGNATURE AND DATE

Signature of Responsible Party: Forms submitted by fax or mail require the signature of the responsible party. Forms submitted by e-mail do not require a signature; however, the responsible party sending the form by e-mail is certifying that all information contained is complete and accurate. If you choose to send the PDF version of the form by e-mail, a message will inform you that "you are sending a data file only, not the form;" This is the correct submittal process.

Date of Submission: Provide date on which form was submitted.


((1. Owner/Operator Vessel(s) Owner Information: Responsible Party Information:
Name ____________ Name ____________________
Address ____________ Address ____________________
City, State/Province Zip ____________ City, State/Province Zip ____________________
Country ____________ Country ____________________
Telephone Number ____________ Telephone Number ____________________
E-mail ____________ E-mail ____________________
2. Fleet Information
Vessel Name Existing Vessel, or New Build IMO# Type GT Ballast Capacity
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
Notes:
1. If you need to list additional vessels, make sure cursor is in last row of table, select "Table" on the menu bar, choose "Insert," then select "Rows Below."
2. Use one reporting form for each ballast water management plan.
3. See attached instruction form.
3. Ballast Management Compliance Plan (2007)
a. Does this management plan include retaining ballast on board? Yes No
b. Does this management plan include the discharge of water that originated solely within "local waters"? Yes No
c. Does this management plan include ballast exchange? Yes No
d. If considering ballast exchange: How will you handle ballast if unable to exchange at sea?
e. Does this management plan include a ballast treatment system? If yes, complete f. through l. Yes No
f. Vendor Company
g. Vendor Contact
h. Final System Selection Date j. System Purchase Date
i. System Installation Date k. System Operational Date
l. Additional Comments
Responsible Party Signature:_______________________________ Date:____________________________
By submitting this form by e-mail, the responsible party is certifying that all information provided is complete and accurate.))

(4) Vessel operators claiming a safety exemption under RCW 77.120.030(4) must notify the department of their intent to do so on the ballast water reporting form as required in subsection (1) of this section. Notification requires writing the words "SAFETY EXEMPTION" on the form where it asks "If no ballast treatment conducted, state reason why not:" and stating the cause as either "ADVERSE WEATHER," "VESSEL DESIGN LIMITATION," "EQUIPMENT FAILURE," or "EXTRAORDINARY CONDITION."

(a) No safety exemption request is required if the vessel does not intend to discharge unexchanged or untreated ballast water and follows the requirements under subsection (2) of this section.

(b) Vessel operators may rescind a safety exemption claim by filing an amended ballast water reporting form and notifying the department as required in subsection (1) of this section.

(5) The department will review safety exemption claims as noted in subsections (3) and (4) of this section.

(a) The department will determine whether a compliance plan and alternative strategy are required. Compliance plans and alternative interim strategies will be established to minimize discharge of future unexchanged ballast water until compliance with this section can be met.

(b) The department will assess a safety exemption fee using the following as guidance:

(i) Minimum five hundred dollar fee for administrative costs to assess compliance; and

(ii) Larger fees may be assessed by the department based on vessel history, risk, and degree of failure in implementing prior compliance plans and alternative strategies.

(6) The department may impose civil penalties ranging from a warning letter up to twenty-seven thousand five hundred dollars for violation of the requirements of this section pursuant to RCW 77.120.070. Each day of a continuing violation constitutes a separate violation. The department will assess civil penalties based on elements that include, but are not limited to:

(a) Degree and nature of failure in meeting reporting requirements;

(b) Degree and nature of failure in allowing reasonable department inspection of a vessel's ballast water management records or allowing samples to be taken from ballast tanks;

(c) Degree and nature of failure in preventing or stopping discharge upon request by department;

(d) Volume and risk of introducing invasive species based on the source of unexchanged or untreated discharge;

(e) Discharge of treated water using a technology that has not been approved for use in waters of the state; and

(f) Vessel and operator violation history.

[Statutory Authority: RCW 77.12.047. 06-07-006 (Order 06-35), 220-77-090, filed 3/2/06, effective 4/2/06; 01-17-097 (Order 01-173), 220-77-090, filed 8/20/01, effective 9/20/01; 00-17-146 (Order 00-163), 220-77-090, filed 8/22/00, effective 9/22/00.]


AMENDATORY SECTION(Amending Order 02-185, filed 8/9/02, effective 9/9/02)

WAC 220-77-095   Interim ballast water discharge standard approval process.   (1) The Washington state interim ballast water discharge standard is inactivation or removal of ninety-five percent of zooplankton organisms and ninety-nine percent of phytoplankton and bacteria organisms.

(2) Vessels subject to chapter 77.120 RCW that have not adequately exchanged their ballast water must treat their ballast to meet or exceed the state's discharge standards prior to ((discharge)) discharging ballast water into Washington waters((, after July 1, 2004)).

(3) An interim approval process shall be used to ((evaluate ballast water treatment technologies and)) provide approval for ((certain)) ballast water treatment technologies that are determined to meet, or have the potential to meet, the Washington state interim ballast water discharge standard. Only ballast water treatment technologies that are approved through this process may be used on specified vessels to discharge treated ballast water into Washington waters ((following the guidelines identified within the approval process. Ballast water treatment technology vendors or vessel owners may submit ballast treatment technology for evaluation through the following process:

(a) Applications for approval will be accepted by the director or the director's designee)).

(a) Approval for use of a technology in waters of the state must meet one or more of the following criteria:

(i) The technology was previously approved by the department for use in waters of the state for the term as specified in their approval letter;

(ii) The technology is approved by the U.S. Coast Guard for use in national waters;

(iii) The vessel is enrolled in the U.S. Coast Guard STEP program;

(iv) The technology is approved by the state of California for use in their state waters;

(v) The technology is approved by the International Maritime Organization (IMO) and authorized by the U.S. State Department and U.S. Coast Guard for use in national waters; or

(vi) The vessel is enrolled in the IMO approval process and authorized by the U.S. State Department and U.S. Coast Guard for use in national waters.

(b) Technologies using chemicals or that produce chemical by-products upon discharge will be evaluated by the department of ecology for meeting state water quality standards before acceptance.

(c) Technologies may be approved for use on specific vessels in state waters for up to five years.

(d) The director or the director's designee will accept applications for approval at any time. The applicant is to be notified of the department's receipt of the application package within ten working days. If the application package is incomplete, the application will be returned to the applicant with an explanation of the deficiencies or, if the deficiencies are minimal, held for thirty days to allow the applicant to correct the deficiencies. Formal reviews of supporting records and water quality data ((and proposed study plans)) will be completed within forty-five days of receipt of the complete application package.

(((b) Formal reviews will be conducted by a science advisory panel and a maritime advisory panel. Panel members will be appointed by the director or the director's designee. The science advisory panel will provide recommendations to the director or the director's designee regarding the ability of each technology to meet the Washington state interim ballast water discharge standard, the adequacy of the proposed study plan, and determine if such technology should be evaluated as a promising technology that could be considered as a "best available technology." The maritime advisory panel will provide recommendations to the director or the director's designee regarding the ability of each technology to meet the practical needs of the maritime industry, including safety, practicality and cost effectiveness, and determine if such technology should be evaluated as a promising technology that could be considered as a "best available technology."

(c))) (e) The director, or the director's designee, shall ((take into consideration the findings of the scientific advisory panel, and the maritime advisory panel and)) make one of the following determinations:

(i) ((That)) Approval - The ballast water treatment technology ((has been approved by the United States Coast Guard or a state agency and is an)) is approved ((system)) for use in Washington state; or

(ii) ((To grant general approval to a technology meeting the Washington state interim ballast water discharge standard for a period of five years with stipulations for scientific evaluation. Approval may be revoked if new information shows the technology to be grossly inadequate and incapable of being retrofitted to correct the inadequacy;

(iii) To grant conditional approval for use on a specific number of vessels for further full-scale testing; or

(iv))) Deny approval - The ballast water treatment technology is not approved for use in Washington state.

(((d))) (f) Criteria for review. Applications for interim approval of a ballast water treatment system shall be evaluated on the completeness of the following:

(i) ((A letter of commitment from the technology vendor, the vessel owner installing the technology, and the principal investigators conducting the tests, stating their intents to carry out all components of the study plan for which they are responsible. Principal investigators must be qualified independent researchers. Applications for a treatment system to be used within a specified port must include a letter from the port authority in which the system is to be operated, granting authority for testing or use within the port.)) Documentation verifying that the technology and vessel(s) meet one of the criteria noted in (a) of this subsection;

(ii) Documentation ((stating)) verifying that the residual concentrations of any primary treatment chemicals or chemicals that occur as by-products of the treatment meet all applicable regulatory requirements((.)); and

(iii) ((All available)) Documentation describing the technical, operational, and installation characteristics of the system.

(((iv) Documentation from preliminary experiments that demonstrate the potential of the system to meet the Washington state interim ballast water discharge standard. Indicator species may be used to evaluate the technologies' effectiveness. Technologies may be approved that do not currently meet this criteria, but show promise for improvement or are considered to be a "best available technology." The technology should include easily verifiable indicators to ensure the system is operational and effectively treating ballast at the time of treatment.

(v) The discharge from a technology must be environmentally sound and in compliance with existing water quality discharge laws.

(e) Each proposed technology must include a detailed study plan that:

(i) Is organized according to a department-approved standardized format.

(ii) Evaluates the effectiveness of the treatment system over a range of operational conditions during operations, including the cumulative hours of operation, volumes treated, times since the tanks were last cleaned of sediment, abundance of organisms, organic and inorganic load, temperature and salinity of water.

(iii) Identifies limiting conditions such as water quality attributes that may affect the performance of the equipment, length of time for adequate treatment, or other factors that may render the technology as inadequate to meet the interim ballast water discharge standard.

(iv) Assures that samples are representative of the flow or volume from which they are taken.

(v) Contains a detailed quality assurance and/or quality control plan.

(3))) (g) Conditions of approval((.)):

(((a))) (i) Approval of a technology shall be withdrawn ((after one year if the system is not installed or the testing begun as proposed.

(b) Systems approved under the interim approval process shall be considered to meet all ballast water treatment requirements promulgated by the department for a period of five years. In the event subsequent work reveals adverse effects on ecology or human health, approval of the system will be withdrawn unless the treatment system can be repaired to address the system's inadequacies.

(c))) if the technology or vessel is no longer enrolled in the U.S. Coast Guard STEP or IMO approval process, is no longer approved for use in California waters, or has not been approved for use by the U.S. Coast Guard in national waters or by the IMO in international waters;

(ii) Systems approved under the interim process will be subject to all subsequent standards and regulations upon the expiration of the interim approval period((.));

(((d) Interim approval is contingent on adherence to the detailed study plan described in the application and agreed upon by the applicant and the department.

(e) The principal scientist and engineers responsible for conducting and analyzing the tests shall submit a report documenting the performance of the equipment and results of the testing to the department within twelve months after installation. Further testing may or may not be required based upon the test results.

(f))) (iii) Vessels or technologies receiving interim approval shall be subject to inspections by the department or the department's designated representative to verify adherence with the terms of this interim approval agreement and the operation of the treatment systems; and

(iv) Nothing in these rules, ballast water legislation, or laws authorizes the discharge of other pollutants or assures that the technology is safe to operate or that it meets other state, federal, and international laws governing business, marine applications, or other elements.

[Statutory Authority: RCW 77.12.047. 02-17-015 (Order 02-185), 220-77-095, filed 8/9/02, effective 9/9/02; 01-17-097 (Order 01-173), 220-77-095, filed 8/20/01, effective 9/20/01.]

Washington State Code Reviser's Office