Carol Browner, Administrator
Re: Petition for repeal of 40 C.F.R. § 122.3(a)
Dear Ms. Browner:
The introduction of non-indigenous species (NIS) through ballast water is significantly degrading aquatic resources throughout the United States. The introduction and spread of these pest species threatens aquatic ecosystems and the economic livelihood of many communities dependent on these aquatic resources. Today, ballast water discharges are the primary source of these introductions.
Under existing EPA regulations implementing the Clean Water Act (CWA), those who discharge ballast water from vessels are not required to have National Pollution Discharge Elimination System (NPDES) permits. 40 C.F.R. § 122.3 (a). The undersigned groups (Petitioners) are writing to formally petition for the repeal of this rule, which is contrary to the express requirements of the CWA. We are filing this petition pursuant to both 5 U.S.C. § 553(e) and 5 U.S.C. § 555(e).
As you know, Section 301 of the CWA prohibits all point source discharges of pollutants into the waters of the United States unless a permit has been issued pursuant to either § 402 (establishing the NPDES program) or § 404 (covering dredge and fill activities). 33 U.S.C. § 1311(a). Nowhere does the statute exempt "discharges incidental to the normal operation of a vessel" from the requirement to obtain a permit. To the contrary, the Act specifies that vessels are point sources under the CWA. 33 U.S.C. § 1362(14). It is also clear that ballast water contains large numbers of NIS, which qualify as biological pollutants under the definitions of the Act, as well as other non-biological pollutants. 33 U.S.C. § 1362(6).
Thus, under the clear terms of the statute, discharges of ballast water require NPDES permits.
40 C.F.R. § 122.3(a), however, states that:
(Emphasis added). The CWA defines the phrase "discharge incidental
to the normal operation of a vessel" to include ballast water. 33
U.S.C. § 1322(a)(12)(A)(i). Thus, 40 C.F.R. § 122.3(a) excludes
ballast discharges from NPDES permit requirements.
In Natural Resources Defense Council v. Costle, 568 F.2d 1369
(D.C. Cir. 1977) (NRDC v. Costle), the D.C. Circuit directly addressed
the question whether EPA can exempt classes of discharges from the requirement
to obtain an NPDES permit. The court plainly stated that "[t]he wording
of the statute, legislative history, and precedents are clear: the EPA
Administrator does not have authority to exempt categories of point sources
from the permit requirements of § 402." Id. at 1377.
I. The Impact of Exotic Invasive Aquatic Species
More than 21 billion gallons of ballast water containing living organisms
are discharged into U.S waters every year. As noted by Mr. Davis, this
is an average of more than 2.4 million gallons per hour. We recognize
that some efforts have been made on the federal level to address ballast
water discharge through the Non-indigenous Aquatic Nuisance Prevention
and Control Act of 1990 (NANPCA), 16 U.S.C.A. § 4701 (as amended
by the National Invasive Species Act of 1996). While we recognize that
these efforts are good first steps, they do not do enough to prevent the
often irreversible impacts that unregulated ballast discharges are having
and will continue to have on aquatic ecosystems throughout the U.S. Moreover,
they do not substitute for compliance with the CWA.
EPA's David Davis also testified before Congress that:
EPA aquatic ecologist David Yont has further noted that:
Of course, these environmental impacts have accompanying economic impacts,
due to both the impairment of economically significant native species
and the cost of NIS control efforts.
16 U.S.C.A. § 4701(a).
Focusing specifically on the ruffe, Congress noted that:
16 U.S.C.A. § 4701(a)(10).
And finally, Congress recognized that:
16 U.S.C.A. § 4701(a)(4).
II. The Plain Language of the Clean Water Act Requires NPDES
The CWA prohibits "the discharge of any pollutant by any person"
except as in compliance with specified sections of the Act, including
the permitting provisions of § 402. 33 U.S.C. § 1311(a). The
phrase "discharge of a pollutant" is defined to include "any
addition of any pollutant to the navigable waters from any point source."
33 U.S.C. § 1362(12). Vessels are specifically defined as point sources
in the CWA. 33 U.S.C. § 1362(14). Moreover, the CWA specifically
includes "biological materials" in its definition of pollutants.
33 U.S.C. § 1362(6).
The CWA does contain certain limited exemptions relating to the need to obtain NPDES permits for ballast water and other discharges incidental to the normal operation of vessels. None of these exemptions can reasonably be construed as permitting the blanket exemption contained in 40 C.F.R. § 122.3(a). First, the CWA excludes incidental discharges from vessels made in the "contiguous zone" and the "ocean" from having to obtain an NPDES permit. 33 U.S.C. § 1362(12)(B). These terms have clear statutory definitions: the "contiguous zone" begins three miles from shore and extends seaward to twelve miles from shore, and the "ocean," is any portion of the high seas beyond the contiguous zone. 33 U.S.C. § 1362(9) and (10). Thus, the effect of this exemption is that incidental discharges (such as ballast water) that occur more than three miles from shore are not required to have NPDES permits. However, this exemption can in no way be construed as applying inside the three mile contiguous zone boundary.
Second, the CWA specifically excludes two types of discharges from its
definition of "pollutants." 33 U.S.C. § 1362(6)(A). The
Act states that "sewage from vessels or a discharge incidental to
the normal operation of a vessel of the Armed Forces," are not to
be considered pollutants. Id. (emphasis added). As a result of the second
aspect of this exclusion, discharges incidental to the normal operation
of Armed Services vessels are not required to have an NPDES permit. However,
this exemption is specifically limited to Armed Services vessels; EPA
cannot reasonably expand it to apply to all vessels, as it has done in
33 C.F.R. § 122.3(a).
III. The Case Law Unequivocally Indicates that EPA Does Not Have the Discretion to Exempt Incidental Discharges from the Requirements of the CWA.
In NRDC v. Costle, the D.C. Circuit addressed the question of whether EPA could exempt agricultural return flows from the requirements of the CWA. The court unambiguously stated that the EPA did not have the authority to exempt categories of discharges from the requirements of § 402. Finding that § 402 permits were central to achieving the stated goals of the CWA, the court found that "[t]he wording of the statute, legislative history, and precedents are clear: the EPA Administrator does not have authority to exempt categories of point sources from the permit requirements of §402." 568 F.2d at 1377; see also NRDC v. U.S. E.P.A., 966 F.2d 1292, 1305 (9th Cir. 1992); Carr v. Alta Verde Industries Inc., 931 F.2d 1055,1060 (5th Cir. 1991); Sierra Club v. Abston; 620 F.2d 41, 44 (5th Cir. 1980); and U.S. v. Earth Sciences, Inc., 599 F.2d 368, 372 (10th Cir. 1979).
In reaching this result, the NRDC v. Costle court relied on both the language of the statute itself and its underlying legislative history. As noted by the court, when the Clean Water Act being adopted the House Report addressed the effect of § 301 in the following terms:
Any discharge of a pollutant without a permit issued by the Administrator
under section 318, or by the Administrator or State under 402 or by the
Secretary of the Army under 404 is unlawful.
568 F.2d at 1374, quoting from H.Rep.No.92-911, 92d Cong., 2d Sess. 100 (1972), reprinted in Legislative History at 787 (emphasis added).
The court further noted that there were:
Id. at 1375 (internal quotations and citations omitted).
In promulgating 40 C.F.R. § 122.3(a), EPA acted in direct violation
of the straightforward rule established in NRDC v. Costle. EPA has created
a categorical exclusion in a statutory scheme that permits none.
S. Rep. No. 104-113, at 1 (1995). The Report further noted that such
discharges were "currently exempt from control under the Federal
Water Pollution Control Act based on regulations issued by EPA."
Id. at 2.
Congress took this action in 1996 to specifically remove a narrow subset
of incidental discharges--those from Armed Services vessels--from the
NPDES permitting program. While Congress acknowledged the presence of
the more broad regulatory exemption contained in 40 C.F.R. § 122.3(a),
Congress viewed this exemption as being problematic in the face of the
clear and unqualified statutory language imposing the permit requirement.
Thus, the Senate Report stated that:
Rep. No. 104-113, at 7 (1995). Referring specifically to incidental discharges from Armed Services vessels, the Senate Report further stated that "[t]he effect of this amendment is to remove the statutory requirement for a permit for these point source discharges to the waters of the United States." S. Rep. No. 104-113, at 1.
These statutory developments highlight the lack of a statutory basis for EPA's general regulatory exclusion for incidental discharges from vessels in 40 C.F.R. § 122.3(a). They further demonstrate Congress's recognition that such a basis is lacking. Even though Congress was aware of EPA's exclusion, Congress believed that these discharges were subject to NPDES permitting requirements. Although Congress removed the permit requirement for incidental discharges from Armed Services vessels, it took no action to remove the statutory permit requirement for discharges from non-Armed Services vessels. If Congress had agreed with EPA's more broadly drawn exemption, it would have been simple for it to incorporate it into the statutory scheme. Congress's failure to have done this can only be read as a tacit rejection of EPA's approach.
Non-indigenous species introduced through ballast water have caused
widespread environmental degradation and billions of dollars in resulting
economic damage. Petitioners believe that in light of the clear statutory
language, congressional intent and case law, EPA should repeal 40 C.F.R.
§ 122.3(a), thus paving the way for the regulation of ballast water
discharges under the CWA. The exclusion provided in 40 C.F.R. § 122.3(a)
is plainly inconsistent with the CWA and should be eliminated as quickly
as possible to help prevent the further degradation of aquatic resources
Craig N. Johnston,
133 SW 2nd Ave., Portland, OR 97204-3526 (503) 295-0490 FAX 295-6634