ELR Citation: 45 ELR 20187
No(s). 13‐1745 et al (2d Cir. Oct 5, 2015)

The Second Circuit remanded portions of EPA's 2013 general NPDES permit for ship ballast water, a primary cause of the spread of invasive species from one body of water to another. The general permit imposed both technology-based effluent limitations (TBELs) and water quality-based effluent limitation (WQBELs), in addition to monitoring and reporting requirements. But EPA's chosen TBELs failed to reflect the best achievable technology (BAT). Instead of considering what available technology was achievable, EPA based the TBELs on the "International Maritime Organization" standard without adequately explaining why higher standards should not be used given available technology. In addition, EPA failed to give fair and thorough consideration to both onshore and shipboard treatment of ballast water, instead limiting its consideration to shipboard treatment systems. Although no onshore systems existed during its review, the record suggests that such onshore systems were technologically possible at that time, and that EPA "turned a blind eye" to significant information about onshore treatment. Likewise, EPA's decision to exempt pre-2009 vessels that sail exclusively in the Great Lakes from the numeric TBELs was also arbitrary and capricious. The lack of supply of updated shipboard systems is not a legitimate reason to exempt pre-2009 "Lakers" from the 2013 permit, as the purpose of BAT is to force technology to keep pace with need. EPA also acted arbitrarily and capriciously in choosing narrative WQBELs rather than numeric WQBELs, as the narrative standard is too imprecise to guarantee compliance with water quality standards. And EPA's monitoring and reporting requirements for WQBELs fail to guarantee compliance. The court, therefore, remanded the permit, but the 2013 general permit will remain in place until EPA issues a new one.