150 N. Michigan Ave. • Suite 700 • Chicago, Illinois 60601 • (312) 939-0838 • alliance@greatlakes.org • www.greatlakes.org

Buffalo • Chicago • Cleveland • Detroit • Milwaukee

August 22, 2018

Elizabeth Gawrys

Industrial Division

Minnesota Pollution Control Agency

520 Lafayette Road North

St. Paul, MN 55155-4194

Re: Comments on the reissuance of the State Disposal System (SDS) Ballast Water

Discharge General Permit, MNG300000.

Dear Ms. Gawrys:

Thank you for this opportunity to submit comments on the proposed Ballast Water General

Permit (MNG300000).

The Alliance for the Great Lakes appreciates Minnesota Pollution Control Agency (MPCA) for

continuing to focus on ballast water management as a State priority and issuing this proposed

permit for public comment. We strongly supports several critical elements of the draft SDS

permit reissuance including:

The application of the same standard to all vessels in Minnesota waters regardless of the type of

vessel;

The option for emergency control of ballast water discharges; and

The requirement for saltwater exchange even if a treatment system is installed.

However, the Permit as proposed will not adequately protect the waters of Lake Superior from

aquatic invasive species (AIS). There are material weaknesses in the proposed permit that must

be addressed. Our comments are outlined in detail in the attachment to this letter.

The Great Lakes, in general, and Lake Superior, in particular, continue to be threatened by AIS.

The Great Lakes region is supporting a booming US economy. That activity brings with it risks

to our natural systems. As MPCA points out in the fact sheet to the proposed permit, over 6

billion gallons of ballast water are discharged into Lake Superior waters annually. That, together

wq-s8-09c

with the recent findings that confirm Laker ballast water is moving AIS into Lake Superior,

make the timing and the decisions on this permit critically important.

The challenges presented by AIS are daunting. Although progress has been made over the last

ten years, the ability to establish and implement a system protective of ecosystem and water

quality based on sufficiently sensitive and robust analytical techniques, population modeling,

treatment technology development and vessel compatibility continues to be limited. This permit

provides an important opportunity to advance the level of protection for Lake Superior. We urge

MPCA to strengthen the proposed permit as requested and increase the level of protection

against the ongoing pressure of AIS. Thank you for your consideration of our comments.

Sincerely,

Molly M. Flanagan

Vice President, Policy

Alliance for the Great Lakes comments on Minnesota Pollution Control Agency draft

Ballast Water Permit, MNG300000

Statement of Interest: The Alliance for the Great Lakes is the oldest citizens’ Great Lakes

organization in North America, with tens of thousands of members and supporters throughout the

Great Lakes basin. Its mission is to conserve and restore the world’s largest freshwater resources

using policy, education and local efforts, ensuring a healthy Great Lakes and clean water for

generations of people and wildlife. Since 1970, the Alliance has advocated for effective

measures to prevent the introduction and spread of AIS in the Great Lakes basin. Most recently,

we have helped block efforts to pass federal legislation that would weaken ballast water

regulations.

Comments:

1) Draft permit provision 1.1.7

Comment: Strongly support the prohibition of ballast water discharges to waters of the

State that designated as outstanding national resource waters. These areas have been

specifically designated as deserving of a higher level of protection and the prohibition is

appropriate.

2) Draft permit provision 1.1.9

Comment: This provision appears to apply to Lakers built after January 1, 2009. The

provision simply reminds the permittee that it may have responsibilities under the terms

of the Vessel General Permit (VGP) issued by the United States Environmental

Protection Agency (EPA). As written, it creates no obligation for the installation or

proper operation and maintenance of a ballast water treatment system. The State would

have no authority to require that adequate treatment be provided and properly operated

and maintained. Any compliance issues that might arise regarding the adequacy of

ballast water treatment including equipment performance, operation or maintenance

would be the responsibility of EPA and/or the Coast Guard and would have to compete

with other national priorities.

Also, the regulatory cite provided: [Minn. R. 7001.0150, subp. 3(F)], requires proper

operation and maintenance of treatment systems. Based on the discussion above, the

provision is not consistent with the provision as written.

It is noted that of the 247 vessels listed on the Minnesota Pollution Control Agency

(MPCA) website as covered by the existing Ballast Water Permit, at least 11 have been

built on or after January 1, 2009 and are therefore subject to the treatment limits in Part

2.2.3.5 of the VGP.

Also noted is the difficulty of coordinating this permit with the VGP, which is set to

expire on December 19, 2018. As this permit is scheduled to issue in September 2018

and where it refers to the VGP, it is the current VGP, as defined in provision 1.1.45.

When the EPA VGP is reissued it will require conforming changes to the MPCA Ballast

Water Permit. Recognizing this issue and the on-going advancements in ballast water

analytical techniques and treatment technologies, we suggest MPCA use a five year term

for this permit.

The protection of Lake Superior from AIS is a high priority for the people of Minnesota

as well as for the Great Lakes and the nation as a whole. MPCA should establish a

parallel requirement for ballast water treatment and performance as well as operation and

maintenance in this permit as that in the VGP, in order to establish the authority of the

State to protect Lake Superior.

3) Draft Permit provision 1.1.12

Comment: This provision addresses Lakers built before January 1, 2009. Provision

1.1.12 c should be modified to require that after permittees install an operational ballast

water management system (BWMS), they shall meet the numeric discharge requirements

of the VGP as well as the sampling and analysis requirements as stated.

The comment above regarding the overlapping schedules of this permit and the VGP

apply to this provision as well.

4) Draft Permit Provisions 1.1.14 through 1.1.17

Comment: These provisions provide the goals as well as the requirements for the

Study(s) to be carried out either individually or in cooperation by permittees with Lakers

built before January 1, 2009 and have demonstrated that a BWMS is not currently

available. We support the concept of the Study.

Provision 1.1.17 should be amended to provide a requirement that MPCA must approve

the work plan or provide comments that will require an amended work plan on a schedule

as established by MPCA. Also, that when approved, there should be clarity as to the

schedule for completion and what the responsibilities are of the permittee, especially if

there are multiple permittees participating in a Study. Finally, the Study(s) should be not

be limited to on-board treatment of ballast water but also investigate shore-based, barge-

based, and other alternative treatment options.

5) Draft Permit Provision 1.1.26

Comment: We strongly agree with the requirement for ballast water exchange being

added to this permit. It provides an extra layer of protection given the continued

uncertainties regarding the control of AIS.

6) Draft Permit Provision 1.1.34

Comment: As drafted, this is not an NPDES Permit under Section 402 of the Clean Water

Act. The regulatory citation provided: [Minn. R. 7001.1090] references the NPDES

program.

CHAMBER OF • CHAMBRE DE MARINE C(?MMERCE ~COMMERCE MARITIME

~

www.MarineDelivers.com

22 August 2018

Ms. Beth Gawrys

Minnesota Pollution Control Agency 520 Lafayette Road North

Saint Paul, Minnesota

United States 55155

Re: Draft Reissued SDS General Permit No. MNG300000 Permit Authorization for Ballast Water Discharge General Permit

Dear Ms. Gawrys:

The Chamber of Marine Commerce is a bi-national association that represents more than 130 marine industry stakeholders including major Canadian and American shippers, ports, terminals

and marine service providers, as well as domestic and international ship owners throughout the

bi-national Great Lakes and St. Lawrence region and along the eastern seaboard and northern coasts. I am writing you to provide comments of our ship owner members regarding the draft Ballast Water Discharge General Permit.

Overall, we find the conditions of the draft permit mostly reflect those under the current permit. However, we do have some comments that we wish to share. As well, we are supportive of the

permit's validity being extended to 10 years from the current 5 years.

We look forward to continuing to work with Minnesota on ballast water issues. If you have any questions, please do not hesitate to contact me.

Kind regards,

Paul Topping

Director, Regulatory and Environmental Affairs Chamber of Marine Commerce

350 Sparks Street, Suite 700, Ottawa. Ontario. K1R 7S8

Marine Delivers - Safe, EHicient and Environmentally Smart

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Chamber of Marine Commerce Comments on the Reissuance of Ballast Water Discharge General Permit,

Clause Condition Comment 1.1 _g Permittees shall comply with the Ballast Water and This section requires that the MPCA approve

Sediment Management Plan (Plan) as approved by each vessel's BWMP. If the plan is already the MPCA. Permittees shall translate the Plan into approved by a competent authority (i.e. English if the vessel's working language is another Transport Canada or USCG) there should not language. The Plan shall contain all elements be an additional approval required by MPCA. required by Minn. Stat. Sec. 115.1703. If permittees This introduces duplicative requirements and change the actions required to manage ballast additional administrative burden. water or dispose of sediment or other elements of

the Plan, they shall update the Plan and submit the

updated Plan to the MPCA for review and approval

as provided in the Application to Revise NOC

section of the permit.

1.1.12 Permittees shall complete the following for any Our members have been actively searching for

Lakers built before January 1, 2009, covered by this a ballast water management system that is

permit: a. meet the VGP numeric discharge suitable for operation on Great Lakes waters requirements after the first scheduled drydocking and vessels. To date, none have been found. of the vessel, unless they can demonstrate that the U.S. Coast Guard (USCG) has not type-approved, We are continuing to look at systems, with the under 46 CFR subpart 162.060, any ballast water goal of making something work. management system (BWMS) that is commercially

available and compatible for their permitted vessel

in the year prior to the scheduled drydocking ...

1.1.14 Permittees having permit coverage for Lakers built We would be grateful if this requirement would

before January 1, 2009 that submit documentation apply only for the vessels entering a scheduled demonstrating that no BWMS is compatible for the dry docking in the following year and that they permitted vessel shall complete, either individually will not have to resubmit a study or install until or in partnership with other permittees, a Great the next scheduled drydocking. Lakes Ballast Water Treatability Study (Study) ...

1.1.17 Within 180 days after permit issuance, permittees With regards to the required Laker Ballast

(individually or in partnership) shall submit a work Water Treatability Study schedule, if the new

plan for MPCA review that identifies methods and permit is issued Sept. 30, 2018, then the study timelines to complete the Study and achieve the plan is due March 30, 2019 and the work plan ultimate goal of meeting the VGP numeric must be implemented by April 30, 2019. discharge standards. Permittees shall implement

the work plan for the Study 30 days after submittal, This is very aggressive if not impossible timing, unless MPCA requires they modify the work plan. If given the requirement in section 1.1.16 that the MPCA requires modifications to the work plan, Study objectives must include "to work with permittees shall implement the revised work plan BWMS manufacturers or independently to that addresses MPCA requirements, within 30 days develop USCG-approved modifications to after resubmittal of the revised work plan. existing BWMSs or develop new BWMS ...

and/or to pilot test BWMS .... ". Given lead

times on ordering and installing equipment,

and considering that the shipowner will not

CHAMBER OF • CHAMBRE oe MARINE COMMERCE -..... COMMERCE MARITIME

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Clause Condition Comment receive 'approval' of the work plan from MPCA until after submission, this schedule would be

very difficult if not impossible to meet.

1.1.21 The MPCA, in coordination with the Minnesota We are concerned that the definition is too

Department of Natural Resources (DNR), may vague. prohibit discharges, require discharges occur in a

particular area or require emergency treatment of We would like the definition to be quantified, any "high risk" ballast water permittees propose to measurable, process oriented, and time- discharge in Minnesota waters. specific.

A "high risk" ballast water is one that, in the opinion Such an approach would provide ship owners

of the MPCA in consultation with the DNR, poses an with more clarity as to what is "high risk ballast

imminent and substantial danger to the health and water".

welfare of the people of the state related to the

introduction of a nonnative species into Minnesota

waters ...

1.1.22 As an alternative to discharging high risk ballast These clauses should be clearer on what water, the MPCA may authorize the use of BWMS MPCA intends. MPCA is considering identified as promising technology by EPA, USCG, emergency control or possible contingency neighboring states or a U.S. ballast water testing measures for high risk ballast water, but we will research facility. need more certainty on what may be required

1.1.23 If the MPCA, in coordination with the DNR, and how it would be applied.

determine that there is a high risk ballast water This appears to read as the MPCA imposing source port, the MPCA will contact permittees new requirements mid-permit without known to uptake ballast in that port to establish consultation. For instance, what would the alternatives to standard ballasting/de-ballasting "alternative to standard ballasting/de-ballasting procedures to minimize the risk to Minnesota

procedures" entail? waters.

1.1.27 All vessels entering Minnesota waters shall By itself, this clause applies to any vessel maintain the ability to measure salinity levels in entering Minnesota waters, although it appears each tank onboard the vessel to ensure that the to be linked to 1.1.26 that applies to vessels levels reach salinities of at least 30 parts per from outside the exclusive economic zone. thousand prior to discharge in Minnesota Waters.

This requirement applies regardless of whether the As worded, this would include a vessel vessel has an operational BWMS. This requirement originating from Wisconsin. We would is in addition to treatment required under the VGP appreciate clarification that this clause does ... not apply to a vessel whose voyage originates

within the EEZ.

1.1.39 Chemical Additives. Permittees shall not discharge This clause appears to create a unique any chemical additives through a BWMS at levels standard for Minnesota. As our members' that cause or contribute to an exceedance of state vessels serve all jurisdictions within the water quality standards in Minn. R. 7050.0150 and Great Lakes region, we would prefer use of Minn. R. 7052.0100. Permittees shall meet the VGP

one common standard set out by the US discharge limits for discharge water from BWMS

with the exception of Total Residual Oxidants, Coast Guard.

CHAMBER 0~ • CHAMBRE OE

MARINE COMMERCE -......COMMERCE MARITlM£

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Clause' Condition Comment measured as Total Residual Chlorine (TRC). Once

permittees install an operational treatment system, As well, this clause may unintentionally

they shall base TRC results on the Final Acute Value

(FAV) found in Minn. R. 7050.0220, Subp. 3a(6). For create a conflict between state water

chemical additives other than chlorine, permittees quality standards and VGP discharge

shall comply with requirements on the MPCA limits. chemical additive webpage at:

https://www. pea.state .m n. us/water /wastewater-

additional-guidance-and-information to find the

documents necessary to complete the approval

process.

CHAMBER OF • CHAMBRE DE MARIN~ COMMERCE ~COMMERCE MARITIM~

~ ___ com 1•-f'

20325 Center Ridge Rd., Ste. 720 Rocky River, OH 44116 Phone: 440-333-4444 www.lcaships.com

The Association Representing Operators of U.S.-Flag Vessels on the Great Lakes Since 1880

AMERICAN STEAMSHIP COMPANY ANDRIE INC. ARMSTRONG STEAMSHIP COMPANY BELL STEAMSHIP COMPANY CENTRAL MARINE LOGISTICS, INC GREAT LAKES FLEET, INC. INLAND LAKES MANAGEMENT, INC. THE INTERLAKE STEAMSHIP COMPANY LAKE MICHIGAN CARFERRY SERVICE

PERE MARQUETTE SHIPPING PORT CITY MARINE SERVICES SOO MARINE SUPPLY, INC. VANENKEVORT TUG & BARGE INC.

August 9, 2018 Elizabeth Gawrys Industrial Division Minnesota Pollution Control Agency 520 Lafayette Road North Saint Paul, Minnesota 55155 Submitted via email to: Elizabeth.Gawrys@state.nm.us Subject: Comments on the Intent to Reissue the Minnesota Ballast Water Discharge General Permit, MNG300000 Dear Ms. Gawrys: Since 1880, Lake Carriers’ Association (LCA) has represented the U.S.-flag Great Lakes fleet, which today can annually move more than 90 million tons of cargos that are the foundation of American industry, construction, and power: iron ore, limestone, coal, cement, and other dry bulk materials such as grain and sand. Commercial maritime navigation on the Great Lakes is the most environmentally friendly mode of transportation with CO2 emissions 10 times less than trucks and nearly 3 times less than rail; can move 1 ton of materials over 600 miles on 1 gallon of fuel; and one 1,000-foot laker takes 3,200 trucks off the highways and 750 rail cars off the rails and out of towns throughout the eight Great Lakes states. LCA is providing comment to Minnesota Pollution Control Agency’s (MPCA’s) July 23, 2018 Public Notice of intent to reissue the Ballast Water Discharge General Permit, MNG300000. LCA requests the following clarifications to the reissuance:

• Clarify if the ongoing requirement to install a ballast water management system (BWMS) on pre-2009 lakers unless there are none shown to be compatible with a vessel only needs to be completed one year in advance of its scheduled drydocking and is sufficient documentation on compatibility until that vessel’s next scheduled drydocking. Currently MPCA requires every vessel, every year to provide this incompatibility review (Section 1.1.12);

Lake Carriers’ Association The Greatest Ships on the Great Lakes

JAMES H. I. WEAKLEY, PRESIDENT 440-333-9995 weakley@lcaships.com

Intent to Reissue the Minnesota Ballast Water Discharge General Permit, MNG300000 Comments by Lake Carriers’ Association

August 22, 2018 Page 2

• MPCA should quantify what “high risk” ballast water is beyond an “opinion” which could lead to significant deleterious impacts to Great Lakes commercial navigation and the industries it supports (Section 1.1.21); and

• Remove the requirement for ALL vessels to have the capability of measuring salinity and specify that it is only applicable to those vessels arriving in Minnesota water from outside the Canadian and U.S. Exclusive Economic Zones (EEZ) (Section 1.1.27).

Additionally, LCA strongly supports the MPCA Commissioner’s determination that this proposed reissuance of the general permit be for a term of 10 years. Section 1.1.12 With the current ballast water general permit, set to expire on September 30, 2018, MPCA interpreted the compatibility review for the installation of a BWMS on lakers built before January 1, 2009, at Section 1.7, to require operators of those vessels to submit individual reviews to MPCA for each vessel by February 28 of the calendar year before their permit expiration and annually thereafter, whether or not a vessel was headed in for a scheduled drydock. It is our understanding that the intent of this reissuance of the general permit is to clarify that lakers only need to submit their compatibility review for the installation of a BWMS by February 28 of the calendar year before their permit expiration for their next scheduled drydocking. In Section 1.1.12(a) of the permit it states that the compatibility review is submitted “. . . in the year prior to the scheduled drydocking.” In Section 1.1.12(b), the permit states “. . . permittees shall submit documentation demonstrating that no BWMS is compatible for the permitted vessel by February 28 of the calendar year prior to the vessel’s next drydocking.” Unscheduled drydocking may occur for a number of reasons with the intent to place the vessel back into service as soon as possible. LCA assumes that 1.1.12(a) and 1.1.12(b) are meant to align with “scheduled drydocking” and asks that the word “scheduled” be placed before the word “drydocking” at the end of the first sentence in Section 1.1.12(b). Section 1.1.21 The proposed language in the reissuance of the Minnesota VGP states:

“The MPCA, in coordination with the Minnesota Department of Natural Resources (DNR), may prohibit discharges, require discharges occur in a particular area or require emergency treatment of any ‘high risk’ ballast water permittees propose to discharge in Minnesota waters. “A ‘high risk’ ballast water is one that, in the opinion of the MPCA in consultation with DNR, poses an imminent and substantial danger to the health and welfare of the people of the state related to the introduction of a nonnative species into Minnesota waters.”

While LCA understands and wholeheartedly supports prevention as the best tool to mitigate the threat and potential deleterious impacts of a non-native species in waters of the Great Lakes, it is concerned the term of “high risk” is too loosely defined and open to wide individual interpretation. The impact of the broad definition could result in:

Intent to Reissue the Minnesota Ballast Water Discharge General Permit, MNG300000 Comments by Lake Carriers’ Association

August 22, 2018 Page 3

• Stranding vessels between cargo discharge ports and load ports in Minnesota without leaving viable options for the shippers;

• Mandate vessels exchange ballast in another states’ or Canadian waters which could have legal jeopardy for vessel operators; and

• Require vessels to perform an operation not available or viable such as discharging ballast water to an onshore facility where none exist and the vessels themselves are not designed to or capable of pumping ballast water off-vessel through a shoreside connection.

LCA requests the term “high risk”, to the extent possible, be quantified and anticipatory. The Great Lakes is a system where ports and docks are intimately intertwined and customer(s) are reliant on that non-interchangeable system for the delivery of cargoes. For instance, a specific grade of taconite required by a steel mill in Cleveland, Ohio may only be loaded at Two Harbors, Minnesota due to the requirements of the end use of the steel produced. There are not options to load at other facilities in Wisconsin or Michigan. The Great Lakes navigation season is only open nine-and-a-half months a year because of the annual closure of the navigation locks at Sault Ste. Marie, Michigan. The entire system of Great Lakes commercial shipping is reliant on full availability of cargoes and ports throughout the remainder of the year. Quantification of “high risk” should provide a distinct target for assigning this elevated restriction that specifies the issue, stressors that define the risk, its trigger for the declaration, and the definable levels that would need to be achieved to suspend the “high risk” designation. Beyond being quantified, “high risk” should also have a defined timeline with periodic reevaluation waypoints that include consultation with the industries impacted either at the load port or the discharge port. With the commercial traffic reliant on Minnesota ports, in addition to operators of commercial vessels, in their notification process, MPCA should also include mine operators, dock operators, port authorities(s), customers, end users of the cargoes, and other transportation modes required in the logistics chain to move cargoes. LCA believes that this MPCA/DNR consultation process should be inclusive of the commercial entities since the impacts would reach far beyond Minnesota waters and could be economically devastating. Halting or turning around a vessel, most likely vessels, is not a sustainable option in the Great Lakes. Section 1.1.27 The U.S.-flag Great Lakes fleet, operating “lakers”, is by definition confined to freshwater navigation in the Great Lakes system. Section 1.1.27 of the proposed reissuance states that “all vessels entering Minnesota waters shall maintain the ability to measure salinity in each tank onboard the vessel . . .” Though it appears that reference may be intended to be focused on those oceangoing vessels entering the Great Lakes-Saint Lawrence Seaway system from beyond Canada’s and United States’ EEZs, without the specific language either clarifying that or expressly excluding lakers, it could catch lakers in an enforcement conundrum for unnecessary reasons. LCA asks that wording in 1.1.27 be modified to connote that lakers are not included in the requirement to maintain the ability and equipment specific to measuring salinity on board lakers as defined in the 2013 United States Environmental Protection Agency’s (U.S. EPA’s) Vessel General Permit (VGP):

Intent to Reissue the Minnesota Ballast Water Discharge General Permit, MNG300000 Comments by Lake Carriers’ Association

August 22, 2018 Page 4

“Specifically, per the 2013 VGP, Lakers are vessels that operate exclusively in the Laurentian Great Lakes – that is, upstream of the waters of the St. Lawrence River west of a rhumb line drawn from Cap de Rosiers to West Point, Anticosti Island, and west of a line along 63 W. longitude from Anticosti Island to the north shore of the St. Lawrence River.”

This definition aligns with United States Coast Guard (USCG) regulations at 33 Code of Federal Regulations 42.05-40 and concurs with Canadian regulations. Since U.S.-flag lakers do not navigate beyond the EEZ nor even beyond the line demarcating the Great Lakes, we ask MPCA drop the requirement for “all” vessels having the ability to measure salinity and specifically exclude lakers as defined by U.S. EPA and USCG. LCA appreciates the opportunity to provide comment on Minnesota’s reissuance of the Ballast Water Discharge General Permit, MNG300000. If you have any questions, comments, or would like a clarification on any text within this letter, please feel free to reach out to me at your convenience by phone or email. Sincerely, James H. I. Weakley President Lake Carriers’ Association

August 22, 2018 By electronic mail Elizabeth Gawrys Industrial Division Minnesota Pollution Control Agency 520 Lafayette Road North St. Paul, MN 55155-4194 Phone: 651.757.2380 Email: elizabeth.gawrys@state.mn.us Re: Comments on the reissuance of the State Disposal System (SDS) Ballast Water Discharge General Permit, MNG300000. The below signed organizations (organizations) are writing to comment on the Minnesota Pollution Control Agency’s (MPCA’s) proposal to reissue the SDS Ballast Water General Permit, MNG300000 (“Draft Permit”). The MPCA’s Draft Permit should not be approved as proposed because it is not sufficient to assure that vessel ballast water discharges will comply with Minnesota water quality standards. Accordingly, MPCA must revise the Draft Permit to include additional conditions. The organizations find it troubling that very little ballast water discharged to Minnesota waters is treated to meet the discharge standards of the permit. The National Ballast Information Clearinghouse (NBIC) indicates that only four discharges from ships arriving in Minnesota Lake Superior ports have been treated between January 1, 2014 and July 15, 2018 out of 2,543 arrivals during the same time period. During this period, 67,936,605 MT of ballast water was discharged to Minnesota waters and only 29,666 MT (0.04 percent) was treated with a Ballast Water Management System (BWMS) to prevent the introduction of nonindigenous aquatic species.

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Statement of Interest The organizations have an active and historic interest in protecting Minnesota’s waters with high social, recreational, economic, and health importance from the threats posed by introducing and spreading aquatic invasive species (AIS) to the Minnesota waters of Lake Superior. The organizations strongly support several key elements of the draft SDS permit reissuance:

● The application of the same standard to all vessels in Minnesota waters regardless of the type of vessel;

● The option for emergency control of ballast water discharges; and ● The requirement for salt water exchange even if a treatment system is installed.

These are all critical components of the Draft Permit that we recommend be retained in the final permit.

1 Accessed at https://nbic.si.edu/database/on August 10, 2018.

Actions MPCA Should Take

The organizations request that the following changes be made:

Establish a Deadline

The permit will do little to force the development of technology to allow existing Lakers to meet the ballast water discharge standards. The permit exempts Lakers built before January 1, 2009 from meeting the ballast water treatment requirement until a commercially available and compatible system is available for that vessel. Without an end date or another regulatory mechanism that provides increasing pressure to

2

develop technology to meet the discharge standards, MPCA’s permit cannot be considered to be technology forcing.

To address this issue, the MPCA should, at the minimum, sunset the option for an exemption for no type approved system available after no later than 10-years from reissuance of the permit. A deadline will establish a clear goal for technology development and meet the technology-forcing requirements of the Clean Water Act.

3

Strengthen Emergency Control of Ballast Water Discharges

The MPCA introduced an option for emergency control of ballast water discharges in the 401 certification of the VGP. The organizations are happy to see that this option is also included in the draft permit

4

reissuance. The extremely large volume of high-risk ballast water permittees could potentially discharge necessitates a rapid response procedure. Unfortunately, the current system has not been shown to be effective. It has not been used despite the fact that the current permit requires vessels to provide a 24-hour alert to the state regarding the source of vessel ballast water.

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The draft permit alters the emergency control for ballast water program by removing the 24-hour reporting requirement. The explanation in the factsheet is incomplete and does not give the organizations confidence that the MPCA will receive the information needed, when it is needed, to take protective emergency control actions. The MPCA should alter the draft permit to maintain the reporting requirement and extend it to 48-hours.

Finally, organizations find it unsatisfactory that the emergency control program has not been used. Studies show that Lakers are moving non-native aquatic species from port to port , yet none of the nearly

6

100 Lakers with active permits in Minnesota have ever been required to treat their ballast water before discharging it into Minnesota waters. The emergency control program is only effective if it is used. The

2 Draft Permit, §1.1.12 3 Nat. Res. Def. Council v. U.S. E.P.A., 808 F.3d 563 (2nd Cir. 2015) 4 Letter dated February 19, 2013 from David Richfield, Supervisor Agency Rule Unit, MPCA, to Tinka G. Hyde, Director, Water Division, U.S. EPA stating the MPCA’s 401 Certification for EPA 2013 VGP and sVGP (401 Certification), § 4. 5 State Disposal System (SDS) Permit MNG300000 Ballast Water Discharge General Permit (Current Permit), Issued October 11, 2013, § 1.9. 6 A. Cangelosi, et. al., “Great Waters Research Collaborative: Great Lakes Ship Ballast Monitoring Project Technical Report,” May 31, 2018, Lake Superior Research Institute, University of Wisconsin-Superior.

MPCA should ensure that the staff and systems are in place to improve the robustness of the emergency control program and use it to protect Minnesota waters.

Improve Ballast Water Treatability Study

The Ballast Water Treatability Study (BWTS) proposed in the permit reissuance appears to be an attempt to compel the regulated industry to accelerate development of technology to treat ballast water discharged to Minnesota waters. However, the organizations expect the study to fall short of this goal if it proceeds as proposed.

Setting a goal to study the deficiencies of current systems runs the risk that a significant amount of time will be spent developing more defensible arguments for continuing exemptions instead of using the opportunity to find solutions that will protect Minnesota’s waters. The study should focus entirely on developing solutions that meet the requirements of the permit.

The Ballast Water Treatability Study (BWTS) should be designed to have more accountability and transparency. The organizations suggest that the following elements be included to result in a more fruitful study. To start, the MPCA should require the formation of a review and oversight board for the BWTS. The review board should:

● ensure the study has clearly understood and agreed-upon objectives; ● ensure fair, unbiased project selection; ● ensure accountability and transparency; ● develop review mechanisms for research projects and study results and ensure that those reviews

occur; and ● pursue potential private and public funding.

The BWTS should include a biennial public meeting to update the public on the latest developments and to allow for feedback on the BWTS objectives and projects.

Finally, the BWTS should prioritize pilot studies performed in real operating conditions to fully test the effectiveness of the systems as well as to identify challenges to technologies that would not be identified by bench or laboratory tests.

Do Not Extend Permit Term

The MPCA proposes to extend the permit duration to 10-years. In a more settled situation, a longer 7

permit period may be warranted. However, this is not such a situation and the MPCA should maintain the flexibility to adjust course, if needed, in 5-years.

Consider Stronger Treatment Standards

The organizations believe that the discharge standards in the SDS permit are not sufficiently protective. The permit standards are the current International Maritime Organization (IMO) standards set in 2004. However, if vessels meet this standard there is still a risk of introducing AIS to Lake Superior. Less than ten organisms per cubic meter may not sound significant until one considers the sheer volume of ballast water discharged into some ports.

7 Factsheet, pg. 6.

The most important challenge right now is that every permitted vessel use a Ballast Water Management System. The MPCA should not lose sight, though, of the need to consider, at some later date, more protective standards (e.g. the California Ballast Water Discharge Performance Standards California. )

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Thank you for the opportunity to comment on this draft permit reissuance. For questions or further correspondence, please contact Darrell Gerber, Policy Analyst, Minnesota Center for Environmental Advocacy, 1919 University Ave. W. Suite 515, St. Paul, MN 55104. Email is dgerber@mncenter.org, phone is (651) 287-4876

Sincerely,

A.C.E.S.

Alliance for the Great Lakes

Clean Up the River Environment (CURE)

Clean Water Action

Environment Minnesota

League of Women Voters-Duluth

League of Women Voters-Minnesota

Minnesota Center for Environmental Advocacy

Minnesota Environmental Partnership

Minnesota Trout Unlimited

Pollinator Friendly Alliance

Save Our Sky Blue Waters

WaterLegacy

8 Ballast Water Performance Standards are an implementation of the Ballast Water Management Act (AB-1312) signed October 8, 2015 by the Marine Invasive Species Program at the California State Lands Commission. The interim ballast water discharge performance standards are scheduled to be implemented on or after January 1, 2020 for newly constructed vessels or at the first scheduled drydocked after that date for existing vessels.

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Statement of Interest MCEA is a Minnesota-based non-profit environmental organization whose mission is to

use law, science, and research to protect and enhance Minnesota’s natural resources, wildlife and the health of its people. One of MCEA’s program areas is water quality, and as part of that program, MCEA engages in issues related to ballast water and the significant threats posed by introducing and spreading aquatic invasive species (AIS) to the Minnesota waters of Lake Superior.

Actions MPCA Should Take MCEA strongly supports several elements of the draft SDS permit reissuance:

The application of the same standard to all vessels in Minnesota waters regardless of the type of vessel;

The option for emergency control of ballast water discharges; and

The requirement for saltwater exchange even after installation of a treatment system. These are all critical components of the Draft Permit that the final permit should retain.

MCEA suggests that the MPCA should modify the permit in the following manner:

Sunset the option for Lakers constructed before January 1, 2009, to claim an exemption from meeting the EPA Vessel General Permit (VGP) numeric discharge requirements for no type approved system available no later than 10-years from reissuance of the permit;

Retain the requirement for each vessel entering Minnesota waters to transfer the ballast water report and extend the deadline to 48-hours before arrival;

Modify the Ballast Water Treatability Study (BWTS) requirement to: o Make the goal only to develop systems to meet the requirements of the permit on

Lakers constructed before January 1, 2009; o Add a review board that will:

ensure the study has clearly understood and agreed-upon objectives;

ensure fair, unbiased project selection;

ensure accountability and transparency;

develop review mechanisms for research projects and study results and ensure that those reviews occur; and

pursue potential private and public funding.

o Hold a public meeting every two years to report results;

                                                                                                                                                                                                detect infestations. It should also be noted, it may take many years after an introduction of an AIS before the population begins to increase exponentially.

3

o Include non-shipboard treatment systems in the study; and o Prioritize pilot studies.

Exemption requests for no current type-approved systems compatible with a Laker built before January 1, 2009, should include a specific and quantifiable need for the exemption and include an engineering report on available technologies;

Maintain the permit term at 5-years; and

Include conditions necessary to achieve compliance with state water quality standards including a WQBEL.

Unrelated to the present proposal to modify the permit language, MCEA recommends MPCA take these additional actions:

Work with the Smithsonian to improve the Nonindigenous Aquatic Species Alert Risk Mapper (NAS ARM) to be more useful for emergency response to high-risk ballast water;

Ensure that the staff and systems are in place to improve the robustness of the emergency control program and use it to protect Minnesota waters;

Develop a detailed risk assessment and rapid response process for the emergency control program that includes an evaluation of control measures based upon risk reduction; and

Investigate modifying the discharge standards to be more protective, similar to the California Ballast Water Performance Standards, and to better consider the impact of high-risk species.

Reasons for Revising the Draft Reissuance The permit and fact sheet recognize that ballast water discharges into the Minnesota

waters of Lake Superior put these waters at risk for additional invasions of AIS. This permit is an essential step in the right direction to reduce the chances of new introductions of AIS to the Minnesota waters of Lake Superior from oceangoing vessels and Laker vessels. However, the reissued permit will not assure compliance with Minnesota water quality standards for the reasons set forth below.

I. The Proposed Permit Is Not Technology-Forcing Although MPCA has included procedural background on its proposed General Permit,

MPCA has entirely neglected to discuss one crucial development about the 2013 Vessel General Permit (2013 VGP) upon which this Draft Permit rests. In 2015, the Second Circuit Court of Appeals (Second Circuit) ruled that the 2013 VGP is manifestly deficient in some respects and that the U.S. EPA (EPA) had acted “arbitrarily and capriciously” in approving it.3

                                                            3 Nat. Res. Def. Council v. U.S. E.P.A., 808 F.3d 556 (2nd Cir. 2015) (“VGP Challenge 2015”).

4

In particular, the:

(1) EPA’s decision to set the technology-based effluent limits (TBELs) at the International Maritime Organization (IMO) Standard,

(2) EPA’s failure to consider onshore treatment for ballast water discharge,

(3) EPA’s decision to exempt the pre-2009 Lakers from the TBELs,

(4) EPA’s narrative standard for Water Quality Based Effluent Limits (WQBELs),

and

(5) the monitoring and reporting requirements established by EPA for WQBELs.

Although the Second Circuit allowed the 2013 VGP to remain in place until EPA issues a new VGP, it is incumbent on MPCA to address the deficiencies identified in the federal court decision when reissuing the state permit, which (as noted above) essentially “piggybacks” on the deficient federal permit. The MPCA cannot issue a permit that is arbitrary and capricious under the Second Circuit ruling or violates the Clean Water Act in the same ways the 2013 VGP did.

In its decision, the Second Circuit explained that the Clean Water Act was intended to be “technology-forcing,” meaning that it should force agencies and permit applicants to adopt technologies that achieve the greatest reductions in pollutants.4 In the case of the 2013 VGP, the Second Circuit concluded EPA had failed to implement this aspect of the law when it acted to limit consideration of the development of onshore facilities to treat ballast water as an available technology.5 The Second Circuit was also critical of EPA’s decision to exempt Lakers built before January 1, 2009, from the numeric effluent limits in the VGP. As above, the Court noted that the purpose of the “Best Available Technology” requirement of the Clean Water Act is to “force technology” to keep pace with need, and that EPA’s failure to consider the possibility of onshore treatment for the pre-2009 Lakers was therefore “arbitrary.”6

While EPA has taken no further action on the 2013 VGP since this decision was filed, MPCA must take note of the holding and apply it to the reissuance of the state permit to ensure that MPCA’s actions support the technology forcing goal of the Clean Water Act and are not arbitrary and capricious.

The MPCA has considered some of the conclusions of the Second Circuit in the reissuance of the state permit by including a requirement that Lakers built before January 1, 2009, install treatment technology at their next scheduled drydock. However, the permit will do little to force the development of technology for existing Lakers to meet the ballast water discharge standards because the permit exempts Lakers built before January 1, 2009, from meeting the ballast water treatment requirement until a commercially available and compatible system is available for that vessel.7 This exemption is directly at odds with the “technology-forcing” requirements of the Clean Water Act. This exemption provides an incentive for the                                                             4 VGP Challenge 2015 at 563 5 VGP Challenge 2015 at 572-576. 6 VGP Challenge 2015 at 576. 7 Draft Permit, §1.1.12.

5

shipping industry to drag out the development of a treatment system. Without an end date or another regulatory mechanism that provides increasing pressure to develop technology to meet the discharge standards, MPCA’s permit is not technology-forcing.

To address this issue, the MPCA should end the option for an exemption for no type approved system available, at a minimum, no later than 10-years from reissuance of the permit. By establishing a deadline, MPCA will pressure Lakers to develop the technology or suffer the risk that they will be in noncompliance with the permit. This deadline will create a clear goal for technology development and meet the technology-forcing requirements of the Clean Water Act. As history has illustrated, without such a technology-forcing deadline, the permit has done little to protect Minnesota waters from AIS transported by Lakers.

II. The Proposed Permit Weakens the State’s Ability to Require Emergency Treatment of Ballast Water Discharges The MPCA introduced an option for emergency control of ballast water discharges in the

401 certification of the VGP.8 MCEA is happy to see the inclusion of this option in the draft permit. Specifically, the MPCA:

…may prohibit discharges, require discharges occur in a particular area or require emergency treatment of any ‘high risk’ ballast water permittees propose to discharge in Minnesota waters.

A “high risk” ballast water is one that, in the opinion of the MPCA in consultation with the DNR, poses an imminent and substantial danger to the health and welfare of the people of the state related to the introduction of a non-native species into Minnesota waters.”9

Further, if a high-risk ballast water source port is identified:

…the MPCA will contact permittees known to uptake ballast in that port to establish alternatives to standard ballasting/de-ballasting procedures…

Because of the substantial volume of potentially high-risk ballast water permittees discharge10, it is reasonable for the state to have a rapid response procedure. Unfortunately, MCEA agrees that the current system has not been effective. Even though the current permit requires vessels to provide a 24-hour alert11 to the state regarding the source of vessel ballast water and there are known infestations of AIS in numerous areas of the Great Lakes, the state agencies have not required to-date the emergency control of any ballast water discharges.

                                                            8 Letter dated February 19, 2013 from David Richfield, Supervisor Agency Rule Unit, MPCA, to Tinka G. Hyde, Director, Water Division, U.S. EPA stating the MPCA’s 401 Certification for EPA 2013 VGP and sVGP (401 Certification), § 4. 9 Draft Permit, §1.1.21. 10 For example, the average ballast water discharge per vessel at the Port of Duluth from January 1, 2017 to December 31, 2017 was over 22,000 MT based upon data from the National Ballast Information Clearinghouse. 11 State Disposal System (SDS) Permit MNG300000 Ballast Water Discharge General Permit (Current Permit), Issued October 11, 2013, § 1.9.

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The chief shortcoming of the current reporting system is that no integrated method provides the state with both the source of the ballast water and the up-to-date AIS status of the ballast water source area. Also, it appears that 24-hour notice is not enough to allow the state to devise adequate control responses and implement those controls.12

Unfortunately, rather than modify the emergency control program to address both issues, MPCA has simply proposed to remove the 24-hour reporting requirement without providing assurance there is a viable alternative. The Factsheet justifies this change by stating:

MPCA has removed the requirement to report ballast water discharges 24 hours prior to arriving at a Minnesota port. This requirement was in both the 2008 and 2013 general permits and the information has not been used by regulators to manage ballast water discharges. Separately from the current permit requirement to submit 24 hour ballast water reports, the USCG requires that ballast water discharge information be reported to a national database housed at a website with the Smithsonian called the National Ballast Information Clearinghouse (NBIC). An annual report is also sent to EPA as required by the VGP. The United States Geological Survey (USGS) received funding to implement a pilot program to track invasive species called a Nonindigenous Aquatic Species Alert Risk Mapper (NAS ARM) system for the eight states in the Gulf and Atlantic region. Recently the USGS has received funding to expand the current pilot program to nationwide, including the Great Lakes waters. This system is expected to be completed by early fall 2018 and will be a way for regulatory agencies to track invasive species. MPCA staff is satisfied with the national reporting requirements for annual reports and monitoring data and the new nationwide ARM system; data in the NBIC is available via the webpage at http://invasions.si.edu/nbic/.13

This explanation is incomplete and insufficient to ensure that MPCA will receive the information needed to take protective emergency control actions promptly. The deletion of the reporting requirement removes a mechanism for MPCA to determine where ballast water was picked up based upon the actual operational logs of a vessel and enable prompt threat assessment and action. For example, if information is available that there is an outbreak of an aquatic invasive species in the Port of Cleveland, MPCA has not shown it has any means to determine a vessel had taken on ballast water in that high-risk area in time to begin emergency control measures before ballast water discharge in the Port of Duluth.

Based on the Factsheet, MPCA plans to rely on other readily available information to determine those vessels carrying ballast water from high-risk source waters.14 The NBIC referenced in the Factsheet, though, is not a viable alternative to 24-hour notification. The NBIC

                                                            12 Personal communication with Elizabeth Gawrys and Jeff Stollenwerk, August 10, 2018. 13 Factsheet, pg. 7. 14 Also, from personal communication with Elizabeth Gawrys and Jeff Stollenwerk, August 10, 2018

7

is not an adequate source of information for an emergency response system because it provides weeks old information after ballast water discharges – too late for an emergency response.15

The Factsheet further suggests that the Nonindigenous Aquatic Species Alert Risk Mapper (NAS ARM) system will address the high-risk identification problem. The NAS ARM system is described on the website as:

The Nonindigenous Aquatic Species Alert Risk Mapper (ARM), was developed to characterize the waterbodies at potential risk of invasion from a new nonindigenous species sighting. The ARM tool is a short-term risk assessment utilizing a nonindigenous species' current extents and development of credible scenarios of its potential movement within a drainage based on its mobility and drainage barriers (dams). Maps from ARM will indicate lakes, river reaches, and other waterbodies that are at potential risk of invasion from a new nonindigenous species sighting and will accompany the NAS Alert emails sent out to subscribers and managers. Currently, ARM is only available for the Southeast US but it will be expanded to the whole contiguous US and Hawaii by 2019.16

While the NAS ARM presents a new option to better track and identify high-risk ballast source waters, the tool is limited and difficult to use for emergency ballast water response in the Great Lakes. First, the NAS ARM is a pilot project started in the Southeast US. Until the project is extended fully across the Great Lakes basin, it will not be useful for emergency ballast water management.

Second, the NAS and the NAS ARM presents information in a manner that does not allow a regulator or interested party to identify ballast source waters easily. The NAS ARM project was not designed to address the risk presented by large volumes of ballast waters transferred from a new outbreak to another watershed in a matter of days. The MPCA should work with the Smithsonian to further refine the system to be more useful and practical for identifying high-risk ballast source waters and quickly notifying all interested parties.

As a result of the facts above, both Factsheet explanations offered by MPCA in support of its decision to remove the notice requirement from the permit are incomplete and unsatisfactory.17 It is not evident that the MPCA will receive the information needed, when it is needed, to take protective emergency control actions. The MPCA should develop a detailed risk assessment and rapid response process that includes an evaluation of control measures based upon risk reduction. The MPCA should also maintain the requirement that vessels transmit their ballast records to the MPCA before arrival in a Minnesota port and increase the reporting requirement to at least 48-hours in advance of arrival, to allow more time to develop and implement an emergency response.                                                             15 A search conducted on 8/10/2018 for Ballast Tank Records for the Arrival Port of Duluth, MN for the dates 7/1/2018 to 8/10/2018 includes no ship arrival dates after 7/15/2018. 16 From https://nas.er.usgs.gov/alertsystem/default.aspx accessed August 10, 2018. 17 In personal communications, MPCA has suggested to MCEA that it plans to rely on the U.S. Coast Guard (USCG) or some other method to determine which vessels are carrying previously identified high-risk ballast water before the water is discharged. If this is the case, MPCA should describe the system that it intends to use in detail in the Factsheet.

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Finally, MCEA finds it unsatisfactory that the MPCA has not used the emergency control program. Studies show that Lakers are moving non-native aquatic species from port to port18, yet none of the nearly 100 Lakers with active permits in Minnesota have been required to treat their ballast water before discharging it into Minnesota waters nor take emergency control measures. The emergency control program is only effective when used. The MPCA should make it a priority to ensure that the staff and systems are in place to improve the robustness of the emergency control program and use it to protect Minnesota waters.

III. The Ballast Water Treatability Study as Designed Will Not Accelerate New Technology and Will Not Encourage Public Buy-In The MPCA included a requirement in the 401 certification that Lakers take part in a

monitoring study.19 This study resulted in an academic report20 presenting an all-too-obvious finding that Lakers do, indeed, transfer non-native aquatic species from one port to another. The study recommended that no additional research of this matter is necessary and MCEA is pleased to see that the MPCA did not propose a continuation.

The Ballast Water Treatability Study (BWTS) proposed in the permit reissuance appears to be an attempt to accelerate development of technology to treat ballast water discharged to Minnesota waters. However, MCEA expects the study to fall short of this goal if it proceeds as proposed.

The goals of the BWTS are to:

a. identify and investigate weaknesses and gaps in knowledge that lead to uncertainty in the compatibility and/or effectiveness of the existing type-approved BWMSs; and

b. describe performance requirements and operating conditions necessary for BWMSs to be effective in Great Lakes waters and compatible with Laker vessels.21

Rather than making a primary priority to enumerate the reasons that current type-approved systems are incompatible with Lakers, the study should focus entirely on developing solutions that meet the requirements of the permit. Setting a goal to study the deficiencies of current systems runs the risk that a significant amount of time will be spent developing more defensible arguments for continuing exemptions instead of using the opportunity to find solutions that will protect Minnesota’s waters. The burden for providing reasonable and complete evidence justifying an exception to ballast water treatment requirements already applies to the regulated parties.22 MPCA should remove entirely goal (a) of the BWTS.

                                                            18 A. Cangelosi, et. al., “Great Waters Research Collaborative: Great Lakes Ship Ballast Monitoring Project Technical Report,” May 31, 2018, Lake Superior Research Institute, University of Wisconsin-Superior. 19 401 Certification, § 6.b(2). 20 Cangelosi, et. al. 21 Draft Permit, §1.1.14 22 Draft Permit, §1.1.12 (a)

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The BWTS should also have more accountability and transparency. Success depends on finding common goals and developing effective solutions. MCEA requests inclusion of the following elements to ensure a more fruitful study:

a. Review Board

The MPCA should require the formation of a review and oversight board for the BWTS. The review board should include representatives from the MPCA, DNR, federally recognized tribal governments, USCG, the National Park Service, researchers, treatment system vendors, shippers, port authorities, recreational boating and fishing interests, and environmental or community NGOs with interest in aquatic invasive species. The review board should:

ensure the study has clearly understood and agreed-upon objectives;

ensure fair, unbiased project selection;

ensure accountability and transparency;

develop review mechanisms for research projects and study results and ensure that those reviews occur; and

evaluate potential private and public funding.

b. Public Meeting

Honest and interactive communication between partners and the public is vital to develop a common understanding and build public trust in the research efforts. The BWTS should require a biennial public meeting to provide updates on the latest developments and to allow for feedback on the BWTS objectives and projects.

c. Non-shipboard treatment systems

The BWTS should not focus only on technologies for the onboard treatment of ballast water. The BWTS should also consider examining shore-based, barge-based, and non-treatment options.

d. Pilot Studies

The BWTS should prioritize pilot studies performed in real operating conditions to thoroughly test the effectiveness of the systems as well as to identify challenges that would not be recognized by bench or laboratory tests.

IV. No-Type Approved System Exemption Requires Definition The Draft Permit requires that Lakers built before January 1, 2009, must:

Meet the VGP numeric discharge requirements after the first scheduled drydocking of the vessel, unless they can demonstrate that the [USCG] has not type-approved, under 46 CFR subpart 162.060, any [BWMS] that is commercially

10

available and compatible for their permitted vessel in the year prior to the scheduled drydocking;23

The MPCA in the Factsheet lists several reasons that ballast management systems are “deemed incompatible”24 or are “a cause for concern” for use on Lakers.25 Exemption requests require a stronger burden of proof. The MPCA should expand and deepen information a permittee must provide to “demonstrate” that type-approved systems are not compatible with their vessel. The exemption requests should spell out the specific and quantifiable need for an exemption. MPCA should further require an engineering report on the compatibility of type-approved technologies for individual ships and fleets.

MPCA has the authority to require information,26 and the shippers have the duty “when requested by the agency…[to] furnish to it any information which that person may have or which is relevant to the subject of this [Water Pollution Control Act].27

V. The Extended Permit Term Is Not Justified The MPCA proposes in this permit reissuance to extend the permit duration to 10-years.28

This extension is not justified considering the uncertainty and volatility of critical components of this permit. New technology is in development for ballast water treatment. This technology may be available in 10-years, allowing the sunset date for retrofitting Lakers to be eliminated entirely. New AIS discoveries are occurring.29 Additionally, as mentioned earlier, the emergency control program is still not sufficiently mature to provide adequate protections to Minnesota waters. New treatment standards, as discussed below, may be adopted.

Minnesota’s waters are at continued risk from invasive species, and a shorter permit term is warranted to ensure that the latest technology and water quality needs are addressed sooner, rather than later. The MPCA should maintain a 5-year permit term.

VI. The Permit’s Failure to Require Vessels to Meet a WQBEL Violates Federal and State Law MPCA states that it will not require compliance with a WQBEL because “there is

currently not enough information on the relationship between propagule pressure and the invasion risk in ballast water to be able to calculate numeric a [sic] Water Quality Based Effluent Limit (WQBEL).”30 Nothing in the Clean Water Act or Minnesota’s water pollution control laws or rules relieve MPCA of the obligation to require compliance with a WQBEL for that reason.

                                                            23 Draft Permit, §1.1.12 24 The statement on page 9 of the Factsheet that “chlorine-based management systems were deemed incompatible with Lakers” warrants further investigation. The Ecochlor system uses chlorine dioxide which is a different biocide than chlorination. It holds promise due to lower disinfectant byproducts and lower corrosive properties. 25 Factsheet, pg. 9. 26 Minn. Stat. § 115.03, subd. 1, item (7). 27 Minn. Stat. § 115.04, subd. 1. 28 Factsheet, pg. 6. 29 Briscoe, Researchers discover 2 new nonnative species in Great Lakes, article date August 16, 2018, available at http://www.startribune.com/researchers-discover-2-new-nonnative-species-in-great-lakes/491036641/. 30 Factsheet, pg. 10.

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MPCA is obligated to include conditions in permits necessary to achieve compliance with state water quality standards, conditions imposing WQBELs most especially.31 If indeed, MPCA is unable to establish a WQBEL that will assure compliance with Minnesota water quality standards, the agency may not issue this permit.

VII. The IMO Treatment Standards Are Not Sufficiently Protective MCEA renews our previous comments that the discharge standards in the SDS permit are

not sufficiently protective. The permit continues to use the International Maritime Organization (IMO) standards set in 2004. There remains, though, a significant risk of introducing non-native aquatic organisms. Based on the standards and the amount of ballast water reportedly discharged into the Duluth-Superior harbor and the Two Harbors port in 2005, the following table lists the number of organisms that could have been discharged and remain under the discharge limit.

Parameter  Limit Potential number of organisms discharge to Lake Superior in 

2005 

Organisms > 50µm  < 10 living organisms /m3  < 275 million organisms 

Organisms 10‐50µm  < 10 living organisms /mL  < 28 billion organisms 

E. coli  < 250 cfu / 100mL  < 7 billion cfu 

Intestinal enterococci  < 100 cfu / 100mL  < 3 billion cfu Table 1: Ballast water discharge standards in the Minnesota Ballast Water Discharge General Permit. (cfu = colony forming units)

Less than ten living organisms per m3 may not sound significant until one considers the sheer volume of ballast water discharged into some ports (Table 1). These lax permit standards allow large quantities of viable organisms to be discharged to Lake Superior and are not likely to prevent the introduction of AIS to Lake Superior.

The greatest challenge over the next permit period is to alter significantly the fact that very little ballast water is treated to meet the IMO standards. However, the IMO standard remains insufficient, and the MPCA must consider a timeline to introduce more protective and technology-forcing standards as technology development catches up to the IMO standard.

An alternative standard to consider is one established by the state of California (Table 2). Besides stricter discharge limits, the California standards also have specific criteria for bacteria and viruses. The risks of introducing Viral Hemorrhagic Septicemia (VHS) into Lake Superior warrant a specific parameter for viruses.

                                                            31 Minn. R. 7053.0205, Subp. 8 (requiring MPCA to establish WQBELs where necessary to maintain water quality standards).

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Parameter CA Interim Ballast Water 

Discharge Performance Standards (starting 1/1/2020) 

CA Final Ballast Water Discharge Performance 

Standards (starting 1/1/2030) 

Organisms > 50µm  No detectable living organisms  No detectable living organisms 

Organisms 10‐50µm  < 0.01 living organisms /mL  No detectable living organisms 

Organisms <10µm  < 1,000 living bacteria /100 mL < 10,000 living bacteria /100 mL 

No detectable living organisms 

E. coli  < 126 cfu / 100mL  No detectable living organisms 

Intestinal enterococci  < 33 cfu / 100mL  No detectable living organisms 

Toxicogenic Vibrio cholera (human cholera) 

< 1 cfu / 100mL < 1 cfu / gram wet weight biological material 

No detectable living organisms 

Table 2: California Ballast Treatment Performance Standards. (cfu = colony forming units)32

Additionally, a standard based only on the size of organisms does not reflect the variability in impacts due to differing characteristics of receiving water bodies and to the differing establishment requirements for each species. The MPCA should investigate species-specific standards for organisms that present a high-risk of becoming established in Minnesota waters from introduction via ballast water discharge. These standards should consider factors like the suitability of different receiving waters to support the establishment of the species, the necessary population density for the establishment, the cumulative impact of ballast water discharges, and monitoring and assessment protocols for ballast water.

Thank you for the opportunity to comment on this draft permit reissuance.

Sincerely,

/s/Darrell Gerber Darrell Gerber Minnesota Center for Environmental Advocacy Policy Analyst 1919 University Ave W, Suite 515 St. Paul, MN 55104

                                                            32 Ballast Water Performance Standards are an implementation of the Ballast Water Management Act (AB-1312) signed October 8, 2015 by the Marine Invasive Species Program at the California State Lands Commission. The interim ballast water discharge performance standards are scheduled to be implemented on or after January 1, 2020 for newly constructed vessels or at the first scheduled drydocked after that date for existing vessels.