Date of Adoption: August 3, 2001.

Purpose: Amend ballast water discharge rules.

Citation of Existing Rules Affected by this Order: Amending WAC 220-77-090.

Statutory Authority for Adoption: RCW 77.12.047.

Adopted under notice filed as WSR 01-13-121 on June 20, 2001.

Changes Other than Editing from Proposed to Adopted Version: WAC 220-77-090:

Subsection (1)(a), strike "to (206) 443-8205" and "to waballast@aol.com."

Subsection (1)(b), strike "to (503) 295-3660" and "to wainwright@pdxmex.com."

Subsection (2)(a), add "signed" before "a letter to the state."

Subsection (2)(a)(ii), strike "unless the vessel operator complies with Washington state ballast management law."

Subsection (3), strike "or to conduct ballast water research."

WAC 220-77-095.

Subsection (1) add "The Washington state interim ballast water discharge standard is inactivation or removal of ninety-five percent of zooplankton organisms and ninety-nine percent of phytoplankton and bacteria organisms."; strike "The" and replace with "An"; strike "any type of on-board or port-based."

Subsection (2)(a), add "department receipt of" before "the application package"; strike "completeness of the."

Subsection (2)(b), strike "each" and replace with "such"; strike "considered" and replace with "evaluated."

Subsection (2)(c)(i), strike "Approve" and add "That the ballast water treatment technology has been approved by the United States Coast Guard or a state agency and is an approved system for use in Washington state," and renumber.

Subsection (2)(c)(ii), add "To grant general approval to"; strike "as" before the word "meeting."

Subsection (2)(c)(iii), add "To" before the word "grant"; at the end, add the word "or."

Subsection (2)(d)(i), strike "Application for a port-based treatment system should include a letter of commitment from a port authority that the system is to be operated in." and replace with "Applications for treatment system to be used within a specified port must include a letter from the port authority in which the system is to be operated, granting authority for testing or use within the port."

Subsection (2)(d)(iv), strike "Each technology must be evaluated for its ability to inactivate or remove 95% of zooplankton species and 99% of phytoplankton and bacteria species."; strike "was" and change to "is."

Subsection (2)(e)(iii), strike "explicit hypotheses about potential" and "of the specified ship and route or land based site"; after the "equipment" add "length of time for adequate treatment, or other factors that may render the technology as inadequate to meet the interim ballast water discharge standard."

Subsection (3)(a), strike "lapse" and replace with "be withdrawn."

Subsection (3)(b), strike "would" and replace with "process shall"; strike "lapse if" and replace with "be withdrawn unless"; strike "cannot" and replace with "can."

Subsection (3)(e), add "within" after "department."

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 1, Amended 1, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Effective Date of Rule: Thirty-one days after filing.

August 17, 2001

Debbie Nelson

for Russ Cahill, Chair

Fish and Wildlife Commission

OTS-5016.4

AMENDATORY SECTION(Amending Order 00-163, filed 8/22/00, effective 9/22/00)

WAC 220-77-090   Ballast water management and control -- Reporting and sampling requirements.   (1) Vessels which are subject to chapter 77.120 RCW and which intend to discharge ballast water into Washington state waters must report ballast water management information at least twenty-four hours ((before a vessel subject to chapter 108, Laws of 2000, enters)) prior to entering Washington waters ((intending to discharge ballast water, or twenty-four hours prior to the actual discharge of the ballast water, the master of the vessel must report ballast water management information in written or electronic form to the Washington department of fish and wildlife. This information may be submitted)) by filing a ballast water report pursuant to Title 33 C.F.R. Part 151.2045((, or the report may be forwarded through a recognized marine trade association in a timely manner. Failure to comply may trigger civil penalties under section 8, chapter 108, Laws of 2000.

(2) The department, with assistance from recognized marine trade associations, will compile the 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)) with the department's designated agents as follows:

(a) Vessels bound for Puget Sound or coastal ports must file their ballast water reporting form with the Marine Exchange of Puget Sound in Seattle. Forms must be submitted by fax or in electronic format.

(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 or in electronic format.

(2) Vessels not intending to discharge ballast water into Washington state waters shall notify the department in one of the following ways:

(a) Vessel operators who do not wish to file a ballast water reporting form may send a signed 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.

(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.

(((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.]

(2) Vessels subject to chapter 77.120 RCW that have not adequately exchanged their ballast water must treat their ballast prior to discharge into Washington waters, after July 1, 2002. An 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 ballast treatment technology for evaluation through the following process:

(a) Applications for approval will be accepted by the director or the director's designee at any time. The applicant is to be notified of department receipt of the application package within ten 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 thirty days to allow the applicant to correct the deficiencies. Formal reviews of supporting data and proposed study plans will be completed within forty-five 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 such technology should be evaluated 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 such technology should be evaluated 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) That the ballast water treatment technology has been approved by the United States Coast Guard or a state agency and is an approved system for use in Washington state;

(ii) To grant general approval to a technology meeting the Washington state interim ballast water discharge standard for a period of five 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;

(iii) To grant conditional approval for use on a specific number of vessels for further full-scale testing; or

(iv) 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 principal investigators conducting the tests, stating their intents to carry out all components of the study plan for which they are responsible. Principal investigators must be qualified independent researchers. Applications for a treatment system to be used within a specified port must include a letter from the port authority in which the system is to be operated, granting authority for testing or use within the port.

(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. Indicator species may be used to evaluate the technologies' effectiveness. Technologies may be approved that do not currently meet this criteria, but show promise for improvement or are considered to be a "best available technology." The technology should include easily verifiable indicators to ensure the system is 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 limiting conditions such as water quality attributes that may affect the performance of the equipment, length of time for adequate treatment, or other factors that may render the technology as inadequate to meet the interim ballast water discharge standard.

(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.

(3) Conditions of approval.

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

(b) Systems approved under the interim approval process shall be considered to meet all ballast water treatment requirements promulgated by the department for a period of five years. In the event subsequent work reveals adverse effects on ecology or human health, approval of the system will be withdrawn unless the treatment system can be repaired to address the system's 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 scientist 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 within twelve 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 spelling 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