Second Circuit: EPA Acted “Arbitrarily and Capriciously” regarding Ballast Water

The Second Circuit Court of Appeals ruled that the U.S. Environmental Protection Agency (“EPA”) acted arbitrarily and capriciously in issuing the ballast water provisions included in the 2013 Vessel General Permit (“VGP”), and remanded the issue to the EPA to redraft the ballast water sections of the VGP. The differences between the VGP ballast water provisions, International Maritime Organization (“IMO”) Ballast Water Management Convention, and U.S. Coast Guard’s ballast water regulations have posed a number of compliance challenges thus far, which may be further exacerbated by possible new VGP requirements. While substantive changes to the VGP ballast provisions, if any, are likely years away, ship owners and operators should be aware, closely monitor, and be prepared to comment on a new draft VGP in the future.

On October 5, 2015, the U.S. Court of Appeals for the Second Circuit unanimously ruled that the EPA acted arbitrarily and capriciously in drafting the ballast water discharge provisions of its 2013 VGP. Most notably, the court stated that the EPA failed to adequately explain why stricter technology-based effluent standards should not be applied, failed to give fair and thorough consideration to onshore treatment options, and failed to adequately explain why pre-2009 Lakers were exempted. The court instructed the EPA to reconsider the VGP ballast water provisions in accordance with its ruling. In the meantime, the 2013 VGP will remain in effect.

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