Meeting the Spirit and Letter of the Applicable Law
The term “living” is not defined in the U.S. ballast water regulations. However, it is defined in relevant government documents regarding ballast water:
A viable or living organism is defined as “an organism that has the ability to pass genetic material on to the next generation.” Efficacy of Ballast Water Treatment Systems: a Report by the EPA Science Advisory Board, July 12, 2011, p.75
Moreover, it is scientifically and universally accepted that the definition of “living” or “life” in the context of all biological organismal systems requires the ability to reproduce (Mader,1994).
The USCG is responsible for issuing guidelines “to prevent the introduction and spread of nonindigenous species …”; the guidelines “shall … direct a vessel … to use environmentally sound alternative ballast water management methods … if the Secretary determines that such alternative methods are at least as effective as ballast water exchange in preventing and controlling infestations of aquatic nuisance species; … .” 16 U.S.C. 4711(c); DHS Delegation No. 0170.1(II.)(57).
The USCG Final Rule defines a ballast water management system as any system which processes ballast water to kill, render harmless, or remove organisms. It has two discharge standards for the 10 – 50 μm size class – they are as follows:
- Great Lakes and Hudson River (Subpart C), §151.1511): For organisms less than 50 micrometers and greater than or equal to 10 micrometers: discharge must include fewer than 10 living organisms per milliliter (mL) of ballast water.
- Waters of the United States (Subpart D), §151.2030): For organisms less than 50 micrometers and greater than or equal to 10 micrometers: Discharge must include fewer than 10 organisms per milliliter (mL) of ballast water.
Taken literally, the standard for U.S. waters other than the Great Lakes and Hudson River (i.e., ocean waters) requires a ballast water management system to remove (not “kill or “render harmless”) all but <10 organisms per milliliter (mL). The Final Rule defines a ballast water management system as “any system which processes ballast water to kill, render harmless, or remove organisms.”
This definition of ballast water management system, set forth at 33 CFR §151.1504 and 46 CFR §162.060–3, expressly admits systems that render organisms harmless. With its decision to reject the MPN method, the USCG is ignoring its own definition of a ballast water management system on the grounds that “The regulations specifically require ballast water management systems to be evaluated based on their ability to kill certain organisms.” That is, a ballast water management system that “renders harmless” the treated organisms meets the Final Rule’s definition of a ballast water management system, but doesn’t pass the USCG’s artificially high interpretation of the discharge standard.
Mader, S (1994). Inquiry into Life; 7th edition, Brown (William C.) Co., U.S.