Controlling Hydrocarbon Emissions from Tank Vessel Loading (1987) / Chapter Skim
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Appendix C: Legal Issues Affecting Regulation of Vessel Cargo Vapor Emissions
Appendix C: Legal Issues Affecting Regulation of Vessel Cargo Vapor Emissions
Pages 166-221
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From page 166... ...
This paper discusses the statutory and regulatory framework affecting marine vessel emissions resulting from loading and unloading crude oil and petroleum products. The discussion is divided into two parts.
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From page 167... ...
A chronology of the various federal clean air laws is shown in Table C-1. The Clean Air Act Amendments of 1970 created a cooperative framework for federal and state enforcement of a rigorous and comprehensive program to control air pollution by dividing responsibility between federal agencies and the states to meet nationwide air quality goals.
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From page 168... ...
. The CAA does not expressly provide the authority to regulate marine vessel emissions.
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From page 169... ...
Nor may such factors be used to justify a failure to attain the standards. It is the need to achieve the primary standards that is causing the states to consider regulating marine vessel emissions.
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From page 170... ...
These emission limitations are applicable only to existing sources; EPA has preempted emission standards for new sources. In addition, each SIP contains procedures for granting permits for new sources under new source review systems, as well as procedures for reporting, monitoring, and enforcement.
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From page 171... ...
for both new and existing stationary sources. These pollutants are deleterious to health, but are not produced in large enough quantities to justify imposition of full NSPS programs.
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~293. The purpose of this "new source review," as it is called by EPA, is to provide a broad overview of a proposed project before construction begins, to ensure compliance with all requirements.
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From page 173... ...
Once an area was so designated, certain rules were triggered, including rules on new source review and offsets. Triggering of these rules has prompted states with nonattainment areas to seek reductions in new and existing sources of pollutants.
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From page 174... ...
Emissions trading refers to several alternatives to traditional emission control regulations, including bubbling -- a concept that allows existing facilities that emit air pollution to treat two or more emission points as if they were under a giant bubble. Plants can then control pollution less where the cost of emission reductions are high, in exchange for extra controls where costs are low, as long as the resulting emission levels are equal to or better than under the original standards.
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From page 175... ...
will have to come from small emissions sources, such as dry cleaners and auto body shops. For a new marine terminal, or a major modification to an existing marine terminal, the availability of emissions trading may cause the terminal owner or operator to seek emissions reductions from marine vessels planning to utilize that terminal, as a means of ensuring compliance with NSPS, BACT, or LAER under a state's NSR program.
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From page 176... ...
Under EPA's final emissions trading policy, reduction credits will only be granted for use in bubbles for those reductions occurring after an application to bank or trade credit (whichever is earlier) has been made.
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From page 177... ...
for motor vehicles. If the ozone standard is not attained by the statutory deadline, imposition of sanctions, such as a cutoff of federal highway funds and a ban on construction, may be triggered.
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From page 178... ...
that set forth RACT requirements for most stationary sources of VOCs. No CTG on marine terminals or marine vessels have been issued.
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From page 179... ...
and Reasonable Extra Efforts Program (REEP) are designed to give cities more time to comply with national ambient air quality standards, rather than impose "Draconian" sanctioned such as construction bans or an embargo on federal highway funds.
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From page 180... ...
A California trade group filed suit against EPA in an effort to keep the agency's REEP for attaining air quality standards from being put into practice in Los Angeles and several other areas in the state.37 A California environmental group, the California Clean Air Condition, filed suit on December 22, 1986 claiming California has failed to submit a prodder plan that will enable the state to attain the ozone standard. On October 9, 1986, the governor of Wisconsin authorized the state attorney general to prepare a lawsuit against Illinois, Indiana, and EPA to compel egnforcement of the CAA over the issue of attaining the NAAQS for ozone.3 Wisconsin believes air pollution from the other two states, particularly from the Chicago metropolitan area, is responsible for Wisconsin's failure to attain the ozone standard in an area surround
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From page 181... ...
The legislative history implies this provision was deleted because Congress did not consider vessel emissions significant enough to be included.41 Therefore, while states may enforce air emission standards, it is debatable whether they may prescribe equipment or direct controls for tank vessels as mobile sources to achieve those standards, especially since the concepts of federal preemption and the prohibition on interference with interstate commerce would apply. Aircraft and automobiles, on the other hand, are the only mobile sources which are expressly regulated, and emissions standards for both are set on a national basis.4 Section 233 prohibits any state or political subdivision from adopting or enforcing any aircraft emission
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From page 182... ...
No attention was focused on the problem of emissions from vessels docked at marine terminals. In 1980, EPA revised its regulations.46 The revision, which applied to all proposed major stationary sources, and to major modifications to existing sources, expressly stated that the term stationary source is intended ''to encompass the activities of a marine terminal and only those dockside activities that would serve the purposes of the terminal directly, and would be under the control of its owner or operator."47 The process of loading and unloading vessels docked at marine terminals may contribute various quantities of air pollution in harbor areas.
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From page 183... ...
the inclusion of vessel emissions in determinations of whether a proposed new source or modification would emit a pollutant in significant or major amounts; and (2) the inclusion of mobile source emissions as secondary emissions in assessments of the air quality impacts of proposed new sources and modifications.49 EPA's rationale for the revocation, as set forth in its notice of proposed revocation, was that "the Clean Air Act bars it from requiring the inclusion of vessel emissions in any determination in the preconstruction review of new sources and modifications."5 EPA thus agreed with GATX and the industry that vessels are mobile sources, and that it had no authority to ascribe any vessel emissions to marine terminals because of the congressional ban on51andatory state indirect source review programs [Id.
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From page 184... ...
However, because section 116 permits the states to adopt emission standards or limitations that are more stringent than the federal standards, the states may go beyond attributing dockside vessel emissions to marine terminals and may decide to regulate to-and-fro emissions, absent restrictions on this authority under the supremacy and commerce clauses of the U.S. Constitution, discussed below.
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From page 185... ...
States such as California, Pennsylvania, and New Jersey fall into this category because they are searching for additional sources of VOC emissions that can be reduced to meet the statutory deadline for ozone. The second kind of program indirectly regulates marine vessels by specifying that marine vessel emissions must be calculated and included in the calculation of a marine terminal's emissions for purposes of new source review.
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From page 186... ...
Proposed Regulations In June 1984, the California Air Resources Board presented its "Report to the California Legislature on Air Pollutant Emissions from Marine Vessels." The report concluded that any future vessel emissions control measures should explicitly subordinate regulatory requirements to Coast Guard safety requirements, and excuse vessel operatO5r4 from compliance when necessary to secure the safety of a vessel. Following the submission of that report, the Air Resources Board began developing, as part of its suggested control measures, a proposal that will cover emissions from ballasting and housekeeping operations.
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From page 187... ...
regulated marine vessel emissions under its new source review regulations by treating marine vessels as a part of a stationary source when this source is a facility used to load cargo onto, or unload cargo from, marine vessels. Accordingly, the vessel emissions resulting from these cargo transfer operations, as well as the storage and processing of cargo, are attributed to the stationary source for new source review purposes.
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From page 188... ...
The Illinois EPA believes that failing to include vessel emissions will jeopardize federal EPA approval of Illinois' revised SIP. The proposal would not directly impose equipment or vapor recovery requirements on vessels, but instead would be a means of indirectly controlling emissions by requiring terminal owners to account for dockside vessel emissions and presumably control these emissions.
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From page 189... ...
Emissions that cause or contribute to a condition of air pollution, as defined in the Texas Clean Air Act,62 are prohibited. As a result of a decision of the Texas Court of Appeals, Texas may not attribute vessel emissions to marine terminals for purposes of new source review.
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From page 190... ...
Virginia Virginia regulations provide that vessel emissions should not be attributed to marine terminals for purposes of new source review. EPA has told Virginia that these regulations are not acceptable as a result of the NRDC case.
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From page 191... ...
,67 as amended by the Port and Tanker Safety Act of 1978 (PTSA) , reaffirmed existing Coast Guard marine safety authority over tank vessels and expanded that authority by authorizing the Coast Guard to specify mandatory design and construction requirements for tank vessels carrying crude oil and petroleum products to protect against hazards to life and property.
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From page 192... ...
With respect to the legal consequences of mandating vapor control equipment that may pose safety hazards, serious legal dilemmas can arise for vessel owners if such equipment causes a pollution incident or personal injury.76 Port and Tanker Safety Act of 1978 The PTSA (codified at 33 USC §§ 1221-31 and Chapter 37 of Title 46 USC) reaffirmed existing Coas7t7Guard marine safety authority over tank vessels, dating back to 1936, and in several instances broadened and expanded that authority by more explicitly specifying certain mandatory design and construction requirements for tank vessels carrying crude oil and petroleum products to reduce the hazards associated with handling these cargoes.
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From page 193... ...
comprehensively regulate all aspects of vessel design, construction, and operation, including detailed design specification and stability requirements, manning levels for officers and crew, and licensing procedures for officers and crew members.7 The stated objective of these standards is promotion of merchant marine safety, but the resulting improvements in vessels' structural integrity also enhance environmental protection by preventing accidents that cause pollutant releases. Tank Ve.~.~:~1 F.~;r~m~nt Rabbi r~ment.c: The PTSA cli r~rt~cl the lit (~rr1 to require, on new and existing tank vessels, of specified size categories, certain design and equipment features to minimize or eliminate operational pollution and to reduce the possibility of accidental releases of cargo due to collisions, groundings, rammings, or structural failure t46 USCA §§ 3704-3706~.
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From page 194... ...
On tank vessel of PL/SBTb (3)
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6/1/81 (2) On tank vessels 100,000 DWT or above with keel laid after 12/31/74, IGS required by 2/26/76 (3)
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B1 - A tank vessel that is contracted for after January 7, 1976, BUT DOES NOT COME UNDER CATEGORY A1. C1 - A tank vessel that: a.
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From page 197... ...
6/1/81 (2) On tank vessel of 100,000 DWT or above with keel laid after 12/31/74, IGS required by 2/26/76 Upon delivery 3)
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On tank vessels SET SBT 100,000 DWT or CBT (3)
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From page 199... ...
is delivered after December 31, 1979; or d. has undergone a major conversion that is contracted for after December 31, 1975, or has begun the conversion after June 30, 1976, or has completed the conversion after December 31, 1979; BUT DOES NOT COME UNDER CATEGORIES A2 or B2 D2 - A tank vessel that DOES NOT COME UNDER CATEGORIES A2, B2, or C2.
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or COW 1. The numbers in parentheses under the "Crude Oil Carrier" and 'product Carrier" columns correspond to the numbers in parentheses under the "Date Required" column for each particular category.
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3. Foreign tank vessels must meet the applicable requirements when the vessel enters U.S.
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Because these regulations apply to U.S. vessels in the domestic and foreign trades, as well as to foreign tank vessels entering U.S.
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The licenses are graded to indicate varying levels of responsibility and skill. The safe operation of tank vessels requires a complement of skilled, trained individuals.
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From page 205... ...
In June 1983, as part of its ongoing regulatory responsibilities, the IMO Maritime Safety Committee adopted the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk, and the International Code for the Construction and Equipment of Ships Carrying Liquified Gases in Bulk. These codes have become mandatory under 1983 SOLAS amendments.
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From page 206... ...
EPA has recognized on several occasions that safety, technological, and economic issues must be taken into account in the development of marine vessel emission control strategies and has deferred action on marine vessel regulations that would ascribe vessel emissions to marine terminals for purposes of new source review. Also, the Coast Guard and EPA have sponsored joint studies on the feasibility of controlling vessel emissions.
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From page 207... ...
The CAA provisions on moving sources cover only automobiles and aircraft because Congress was primarily concerned with prohibiting EPA regulation of motor vehicles and parking facilities. To the extent that states have proposed SIP modifications to regulate vessels, EPA has taken the position that the exercise of state environmental authority over marine vessels is open to question, especially in light of Coast Guard jurisdiction over marine safety.
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From page 208... ...
Furthermore, since EPA has not formulated regulations concerning the attribution of marine vessel emissions to marine terminals, EPA cannot affirmatively approve SIP provisions governing marine terminals for new source review purposes. EPA only partially approved SIP amendments concerning PSD regulations proposed by Kansas, bout expressly retained authority to issue permits for marine terminals.
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From page 209... ...
Second, absent an explicit expression in the statute of congressional intent to preempt state authority, such intent will be inferred where Congress has created a federal regulatory scheme so pervasive that it leaves no room for state action, or where the federal interest is so predominant, and the need for uniformity so great, that the federal system will be assumed to preclude enforcement of state laws on the same subject. 5 Third, even where Congress has not entirely displaced state regulation in a specific area, state law will be preempted when "compliance with6both federal and state regulations is a physical impossibility," or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Preemption of Vessel Design Requirements Congress has enacted a comprehensive federal regulatory system governing marine vessels and maritime activities, discussed previously.
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From page 210... ...
In sum, it is well established that the PWSA and PTSA preempt state laws and regulations relating to vessel design and construction requirements, and that state laws enacted for environmental purposes are likely to be preempted if such laws require vessel modifications. Nondesign Requirements: Need for National Uniformity The preemptive effect of federal law on state laws that would impose nonde sign require
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From page 211... ...
at 4463. In sum, state laws affecting marine vessels or maritime affairs are preempted by federal law if they infringe on an area that is the subject of federal regulation because uniformity of regulation is essential, even where the state laws do not conflict directly with a federal requirement or where the congressional intent to preempt is not clear.
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From page 212... ...
With respect to the local benefits to be achieved by state laws governing dockside vessel emissions, the factual record to date does not appear to support the conclusion that VOC equipment will enhance safety and reduce pollution in light of attendant risks. Moreover, if vessel emissions could be reduced, the efficacy of such reductions in improving overall state air quality may not be sufficient to justify the significant burden on commerce imposed thereby.
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From page 213... ...
To the extent the air quality regulations intrude on the interests protected by marine safety and pollution laws, the marine laws will prevail. In addition, issues of national uniformity and deference to international regulation of vessels and the marine environment further limit the extent to which states may regulate marine vessels.
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30EPA, 'iStudy of Gasoline Volatility and Hydrocarbon Emissions from Motor Vehicles " Office of Mobile Sources, Nov.
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From page 215... ...
(BNA) Current Developments, "EPA Sends Vapor Recovery Proposal to OMB, Includes Onboard, Fuel Volatility Controls," at 1995 (Mar.
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. 51At the same time, the Coast Guard and the Maritime Administration were cooperatively developing a proposal for a preemptive statutory treatment for vessel emissions similar to that in the CAA for aircraft emissions.
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1471. 69Most VOC emissions from marine vessels involve bulk carriage of organic liquids by tank vessels, including self-propelled tankers and nonself-propelled tank barges.
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News 3270, 3271. 7 These latter topics are important because changes in vessel design and equipment imposed to accomplish states' vessel emissions reduction goals may necessitate increased personnel to operate the equipment and/or further training in the operation or use of such equipment.
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From page 219... ...
At the same time, the Coast Guard and the Maritime Administration were developing a proposal for a preemptive statutory treatment for vessel emissions similar to that in the CAA for aircraft emissions.
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From page 220... ...
Although specific language need not be expressly included in the statute or legislative history, intent must be clear. GLOSSARY OF TERMS AQCR Air Quality Control Region ARGO Atlantic Richfield Company BAAQMD Bay Area Air Quality Management District BACT best available control technology BNA Bureau of National Affairs CAA Clean Air Act CFR Code of Federal Regulations CO carbon monoxide COW crude oil washing CTG Control Techniques Guidelines EPA Environmental Protection Agency ERC emission reduction credit IGS inert gas system I/M inspection and maintenance IMO International Maritime Organization LAER lowest achievable emission rate MARPOL International Convention for the Prevention of Pollution from Ships MPT marine portable tank NAAQS National Ambient Air Quality Standards NESHAPS national emission standards for hazardous air pollutants NOX nitrogen oxides NRDC Natural Resources Defense Council NSPS NSR OMB OSHA new source performance standards new source review Office of Management and Budget Occupational Safety and Health Administration
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From page 221... ...
1980. Detonation-Flame Arrester Devices for Gasoline Cargo Vapor Recovery System.
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