Original Notice.

Preproposal statement of inquiry was filed as WSR 01-10-107.

Title of Rule: Aquatic disease control.

Purpose: Amend ballast water discharge rules.

Statutory Authority for Adoption: RCW 77.12.047, 77.120.040.

Statute Being Implemented: RCW 77.12.047.

Summary: Effects ballast water discharge reporting and establishes interim treatment approval program.

Reasons Supporting Proposal: The department has a legislative mandate to prevent the introduction of deleterious species through ballast water discharge.

Name of Agency Personnel Responsible for Drafting: Scott Smith, 1111 Washington Street, Olympia, WA, (360) 902-2724; Implementation: Lew Atkins, 1111 Washington Street, Olympia, WA, (360) 902-2651; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, WA, (360) 902-2373.

Name of Proponent: Washington Department of Fish and Wildlife, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: This rule changes the filing of the ballast water report form and provides two places for reporting. It also establishes a requirement for vessels which will not discharge to notify the department. These two requirements will allow monitoring of ballast water discharge by reporting parties. The rule establishes an interim program for approval of new technologies for treatment of ballast water that has not been exchanged at sea. The program contains an approval process and treatment standards. It is anticipated that some vessels will be unable or unwilling to complete at-sea exchanges and will want to discharge ballast water. Effective treatment is needed to prevent the introduction of nuisance and deleterious species.

Proposal Changes the Following Existing Rules: Amends ballast water discharge reporting rule.

A small business economic impact statement has been prepared under chapter 19.85 RCW.

2. Profession[al] Services Required by the Rule: Beginning in 2002, unexchanged ballast water may only be discharged if treated. While this rule provides no mandatory treatment program, it sets standards for the treated effluent. Professional services will be necessary to prepare the technology study plan and ensure the treatment standards are achieved.

3. Costs of Compliance, Including Costs of Equipment, Supplies, Labor and Increased Administrative Costs: For reporting, there are no additional costs above current costs for vessels that will discharge ballast water. Vessels that will not discharge ballast water have a one-time cost of notifying the department, and the cost of such notice is estimated to be less than $25. Regarding treatment of ballast water prior to discharge, there is no mandated treatment technology, and since an at-sea exchange obviates the need for treatment, it is unknown if vessels will seek to use treatment technology, and if so, what treatment technology may be sought. The department cannot estimate the costs of compliance.

4. Will Compliance Cost Businesses to Lose Sales or Revenue? A loss of revenue could occur if a number of vessels used a single treatment facility and there was a delay in discharging ballast water prior to loading a vessel. This could delay the departure of the vessel, and cause a loss of revenue.

5. Comparison of Costs for the 10% of Businesses That are the Largest Businesses Required to Comply with the Proposed Rule:

Reporting: No difference.

Treatment: Unknown if the largest businesses will utilize treatment technology, or what technology might be used. If the treatment cost is by unit of volume, there should be a proportional increase for the volumetric ballast amount, but this does not suggest the largest businesses use the largest vessels.

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses: The department will appoint a scientific advisory panel and a maritime advisory panel. If a small business chooses to submit a detailed study report for a new treatment technology, the panels will review the proposal for effectiveness and efficiency. If the proposed technology is shown to be an effective treatment technology, a preliminary five-year approval can be given. Such approval will reduce technology development costs for all applicants, but should have disproportional benefit for small businesses which have a lesser budget for research and development.

7. Description of How the Agency will Involve Small Businesses in Rule Development: This rule proposal is a product of joint industry-department collaboration. The development of reporting requirements and effluent standards has been reviewed by affected shippers. The department will continue to work with industry to review and approve appropriate technologies for ballast water treatment.

8. List of Industries Required to Comply with the Rule: Vessels that discharge ballast water into Washington state waters.

A copy of the statement may be obtained by writing to Evan Jacoby, 600 Capitol Way North, Olympia, WA 98501-1091, phone (360) 902-2930, fax (360) 902-2155.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. Not hydraulic rules.

Hearing Location: Methow Valley Community Center, 231 Methow Valley Road, Twisp, on August 3-4, 2001, at 8:00 a.m.

Assistance for Persons with Disabilities: Contact Debbie Nelson by July 27, 2001, TDD (360) 902-2207, or (360) 902-2226.

Submit Written Comments to: Evan Jacoby, Rules Coordinator, 600 Capitol Way North, Olympia, WA 98501-1091, fax (360) 902-2940, by August 2, 2001.

Date of Intended Adoption: August 3, 2001.

June 20, 2001

Evan Jacoby

Rules Coordinator

(b) Vessels bound for Washington ports on the Columbia River must file their ballast water reporting form with the Merchants Exchange of Portland. Forms must be submitted by fax to (503) 295-3660 or in electronic format to "wainwright@pdxmex.com."

(2) ((The)) Vessels not intending to discharge ballast water into Washington state waters must notify the department(, with assistance from recognized marine trade associations, will compile the)) in one of the following ways:

(a) Vessel operators who do not wish to file a ballast water ((management information required under subsection (1) of this section, compare ballast water reports with vessel arrivals, determine vessel reporting rates, and evaluate the adequacy of ballast water exchange monitoring)) reporting form may send a letter to the state ANS coordinator, at Department of Fish and Wildlife, 600 Capitol Way No., Olympia, WA 98501-1091, which includes the following information:

(i) Vessel name, identification number (International Maritime Organization, Lloyds of London or U.S. Coast Guard registry number), owner, agent and vessel type; and

(ii) A statement that the vessel will not discharge ballast water unless the vessel operator complies with Washington State ballast management law.

(b) Vessels that would normally discharge ballast water, but will not discharge on any given trip may continue to file the ballast water reporting form, with "not discharging" written in the ballast water history section.

(3) The department, or designated representatives, may at reasonable times and in a reasonable manner, during a vessel's scheduled stay in port, take samples of ballast water and sediment, may examine ballast water management records, and may make other appropriate inquiries to assess the compliance of vessels with ballast water reporting and control requirements, or to conduct ballast water research.

(((4) No vessel may discharge ballast water into state waters if the ballast water has a salinity level less than thirty parts per thousand combined with viable aquatic organisms, unless specifically exempted in chapter 108, Laws of 2000.))

[Statutory Authority: RCW 77.12.047. 00-17-146 (Order 00-163), 220-77-090, filed 8/22/00, effective 9/22/00.]

Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 220-77-095   Interim ballast water discharge standard approval process.   (1) Vessels subject to RCW 77.120 that have not adequately exchanged their ballast water must treat their ballast prior to discharge into Washington waters, after July 1, 2002. The interim approval process shall be used to evaluate ballast water treatment technologies and provide approval for certain technologies that are determined to meet the Washington State interim ballast water discharge standard. Only ballast water treatment technologies that are approved through this process may be used to discharge treated ballast water into Washington waters following the guidelines identified within the approval process. Ballast water treatment technology vendors, or vessel owners may submit any type of on-board or port-based ballast treatment technology for evaluation through the following process:

(a) Applications for approval will be accepted by the director or the directors designee at any time. The applicant is to be notified of the completeness of the application package within 10 working days. If the application package is incomplete, the application will be returned to the applicant with an explanation of deficiencies or if the deficiencies are minimal, held for 30 days to allow the applicant to correct the deficiencies. Formal reviews of supporting data and proposed study plans will be completed within 45 days of receipt of the complete application package.

(b) Formal reviews will be conducted by a science advisory panel and a maritime advisory panel. Panel members will be appointed by the director or the director's designee. The science advisory panel will provide recommendations to the Director or the Director's designee regarding the ability of each technology to meet the Washington State interim ballast water discharge standard, the adequacy of the proposed study plan, and determine if each technology should be considered as a promising technology that could be considered as a best available technology. The maritime advisory panel will provide recommendations to the Director or the Director's designee regarding the ability of each technology to meet the practical needs of the maritime industry, including safety, practicality and cost effectiveness, and determine if each technology should be considered as a promising technology that could be considered as a best available technology.

(c) The director, or the Director's designee, shall take into consideration the findings of the Scientific Advisory Panel, and the Maritime Advisory Panel and make one of the following determinations:

(i) Approve a technology as meeting the Washington State interim ballast water discharge standard for a period of 5 years with stipulations for scientific evaluation. Approval may be revoked if new information shows the technology to be grossly inadequate and incapable of being retrofitted to correct the inadequacy.

(ii) Grant conditional approval for use on a specific number of vessels for further full-scale testing.

(iii) Deny approval.

(d) Criteria for review. Applications for interim approval of a ballast water treatment system shall be evaluated on the completeness of the following:

(i) A letter of commitment from the technology vendor, the vessel owner installing the technology, and the principle investigators conducting the tests, stating their intents to carry out all components of the study plan for which they are responsible. Principle investigators must be qualified independent researchers. Applications for a port-based treatment system should include a letter of commitment from a port authority that the system is to be operated in.

(ii) Documentation stating that the residual concentrations of any primary treatment chemicals or chemicals that occur as by-products of the treatment meet all applicable regulatory requirements.

(iii) All available documentation describing the technical, operational and installation characteristics of the system.

(iv) Documentation from preliminary experiments that demonstrate the potential of the system to meet the Washington State interim ballast water discharge standard. Each technology must be evaluated for it's ability to inactivate or remove 95% of zooplankton species and 99% of phytoplankton and bacteria species. Indicator species may be used to evaluate the technologies effectiveness. Technologies may be approved that do not currently met this criteria, but show promise for improvement or are considered to be a best available technology. The technology should include easily verifiable indicators to insure the system was operational and effectively treating ballast at the time of treatment.

(v) The discharge from a technology must be environmentally sound and in compliance with existing water quality discharge laws.

(e) Each proposed technology must include a detailed study plan that:

(i) Is organized according to a department-approved standardized format.

(ii) Evaluates the effectiveness of the treatment system over a range of operational conditions during operations, including the cumulative hours of operation, volumes treated, times since the tanks were last cleaned of sediment, abundance of organisms, organic and inorganic load, temperature and salinity of water.

(iii) Identifies explicit hypotheses about potential limiting conditions of the specified ship and route or land based site such as water quality attributes that may affect the performance of the equipment.

(iv) Assures that samples are representative of the flow or volume from which they are taken.

(v) Contains a detailed quality assurance and/or quality control plan.

(2) Conditions of Approval.

(a) Approval of a technology shall lapse after 1 year if the system is not installed or the testing begun as proposed.

(b) Systems approved under the interim approval would be considered to meet all ballast water treatment requirements promulgated by the department for a period of 5 years. In the event subsequent work reveals adverse effects on ecology or human health, approval of the system will lapse, if the treatment system cannot be repaired to address the systems inadequacies.

(c) Systems approved under the interim process will be subject to all subsequent standards and regulations upon the expiration of the interim approval period.

(d) Interim approval is contingent on adherence to the detailed study plan described in the application and agreed upon by the applicant and the department.

(e) The principal scientists and engineers responsible for conducting and analyzing the tests shall submit a report documenting the performance of the equipment and results of the testing to the department 12 months after installation. Further testing may or may not be required based upon the test results.

(f) Vessels or technologies receiving interim approval shall be subject to inspections by the department or the department's designated representative to verify adherence with the terms of this interim approval agreement and the operation of the treatment systems.

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Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office