In 2013, the EPA issued a Vessel General Permit (2013 VGP) under Section 402 of the Clean Water Act to regulate ballast water discharge from ships. Ballast water is taken on by ships to compensate for weight changes and can contain organisms, eggs, larvae, sediment and pollutants. When discharged, these organisms can establish invasive species populations causing severe economic and ecological harm. More than 21 billion gallons of ballast water are released annually in US waters. Ships operating exclusively in the Great Lakes (Lakers) account for over 95% of ballast water in the Great Lakes and are more likely to spread invasive species due to short voyage durations. The 2013 VGP set technology-based effluent limits (TBELs) at the IMO Standard, established narrative water quality-based effluent limits (WQBELs), and included monitoring requirements. The permit exempted Lakers built before January 1, 2009 from numeric TBELs. Four environmental organizations challenged the permit as arbitrary and capricious.
Petition GRANTED IN PART and DENIED IN PART. The matter is REMANDED to EPA for further proceedings consistent with the opinion regarding: (1) TBELs at the IMO Standard; (2) consideration of onshore treatment; (3) exemption of pre-2009 Lakers; (4) narrative WQBELs; and (5) monitoring and reporting requirements for WQBELs. Petition denied regarding TBELs for viruses/protists and monitoring requirements for TBELs. The 2013 VGP remains in effect until EPA issues a new VGP.
Under the Clean Water Act, EPA must apply Best Available Technology (BAT) when establishing technology-based effluent limitations, which requires "a commitment of the maximum resources economically possible to the ultimate goal of eliminating all polluting discharges." When available technology can exceed a proposed standard, EPA must either adjust the standard accordingly or adequately explain why it will not. "Available" technology under the CWA includes technologies from other industries that are transferable and can reasonably be predicted to achieve the required pollutant removal, even if not currently used in the regulated industry. EPA acts arbitrarily and capriciously when it artificially limits scientific inquiry to avoid developing information about potentially superior alternatives. Water quality-based effluent limits must provide sufficient specificity to give regulated entities guidance on what is expected and allow permitting authorities to determine compliance; narrative standards that merely restate the obligation to meet water quality standards are insufficient. NPDES permits must include monitoring requirements that "assure compliance with permit limitations" under 40 C.F.R. § 122.44(i), and permits violate the CWA when they lack mechanisms to evaluate compliance with established effluent limits.
The court noted that invasive species cause approximately $137 billion annually in damage in the United States, more than double the annual economic damage from all natural disasters. The court observed that zebra mussels, once established, are impossible to eradicate with current technology. The court also commented that Section 401 state certifications do not relieve EPA of its independent duty under the CWA to ensure compliance with water and federal quality standards, as "the CWA provides a federal floor, not a ceiling, on environmental protection." The court suggested specific examples of what EPA could require for WQBELs, including requiring ships to take action to avoid specific risks at particular ports or not to discharge contaminated ballast water. The opinion also noted that EPA's refusal to consider onshore treatment appears particularly shortsighted given the SAB's findings that onshore facilities would likely be more reliable and adaptable than shipboard treatment, not subject to space and crew limitations, and potentially less expensive per metric ton of ballast water treated.
This case is significant in United States environmental law for establishing important principles regarding EPA's obligations under the Clean Water Act when setting permit limitations. The decision reinforces that: (1) the CWA's technology-based standards are meant to be "technology-forcing," requiring agencies to adopt technologies achieving the greatest pollution reductions, not merely existing consensus standards; (2) "available" technology under the CWA includes technologies from other industries that could be transferred, not just technologies currently in use; (3) agencies cannot artificially limit their inquiry to avoid considering alternatives that may be more effective; (4) narrative permit conditions must provide sufficient specificity to ensure compliance and allow meaningful enforcement; and (5) monitoring requirements must actually assure compliance with permit limitations. The case is particularly important for ballast water regulation and invasive species control, and demonstrates courts will require agencies to fully develop the record and consider all reasonable alternatives when issuing environmental permits. The decision also illustrates the limits of scientific uncertainty as a justification for avoiding regulatory obligations.