11 November 2024
Natural and Historic Resources
Department of Environmental Quality
Air Pollution Control Board
Karen G. Sabasteanski
111 East Main Street, Suite 1400
P.O. Box 1105
Richmond, 23218
CLIA COMMENTS ON A PETITION FOR NEW REGULATORY RULEMAKING ON OCEAN-CLASS PASSENGER CRUISE SHIPS
Dr. Robert F. Hodson has purported to submit a petition to the Virginia Department of Environmental Quality (DEQ) regarding “Cruise Ship Environmental Regulations in Virginia.” The petition “requests that the DEQ and the Commonwealth develop new regulations for cruise ships in Virginia waters as follows: (1) Mandate the use of low-sulphur fuel, (2) Ban the use of Exhaust Gas Cleaning Systems (open-loop scrubbers), (3) Require the use of shore power, (4) Restrict the dumping of graywater, blackwater, and other environmentally detrimental waste products, and (5) Require incident reporting and independent monitoring to ensure compliance.”[1]
Cruise Lines International Association (CLIA) submits that this petition should be rejected for not meeting the bare minimum requirements of the Virginia statute which allows citizens to petition for the adoption of regulations.[2] That statute requires that the petition make “reference to the legal authority of the agency to take the action requested.”[3] By ignoring clear federal preemption, the petition does not even satisfy this basic requirement.
The petition seems to argue that states are essentially free to regulate in this area without concern about federal preemption. But the U.S. Supreme Court has held that there is “no beginning assumption” that state laws which “bear upon national and international maritime commerce” are a “valid exercise of [the state’s] police powers.”[4] Whenever states regulate maritime commerce, courts “ask whether the local laws in question are consistent with the federal statutory structure, which has as one of its objectives a uniformity of regulation for maritime commerce.”[5]
Entirely absent from the petition is any substantive discussion of the most important statute in this area, the Vessel Incidental Discharge Act (VIDA). Signed into law in 2018, VIDA established a new section of the Clean Water Act, entitled, “Uniform National Standards for Discharges.”[6] As the name suggests, this statute was meant to provide for regulatory standards which were both “national” and “uniform.” The federal government has been working for years on issuing such national uniform standards – and the petition does not analyze any of this work or its effect on state regulation in this area.
The petition admits that the U.S. Environmental Protection Agency (EPA) has “recently posted a new Vessel Incidental Discharge National Standard” and that the U.S. Coast Guard (USCG) has two years to issue final implementing regulations implementing the standard.[7] But what the petition does not mention is that, after these USCG regulations are issued, all state regulation of vessel discharges would be subject to a very explicit preemption provision. As of that date, “with respect to every discharge…[subject to regulation under VIDA] no State, political subdivision of a State, or interstate agency may adopt or enforce any law, regulation, or other requirement of the State, political subdivision, or interstate agency with respect to any such discharge.”[8] The only exceptions are essentially for state regulations “identical or less stringent than the Federal regulations under VIDA.”[9]
In other words, the petition asks Virginia to analyze, study, and issue regulations regarding vessel discharges -- a process that will be very expensive and time-consuming -- when in less than two years, these regulations will be preempted by the very national standard mentioned (though not analyzed) in the petition itself.
For example, the petition asks that Virginia ban the use of open loop scrubbers, mandate the use of low-sulfur fuel, and require the use of shore power. But the EPA has specifically rejected these proposals, stating that “EPA has not received information demonstrating that there is sufficient low sulfur fuel (which may be needed to comply with emissions standards if scrubber discharges are not permitted) or that adequate onshore reception facilities are available for disposal of scrubber washwaters and residues that would be generated by the use of other scrubber configurations such as closed- loop or hybrid systems.”[10] In other words, the petition asks that Virginia issue regulations which would be on a collision course with express federal preemption the moment they were issued. The petition totally ignores the fact that, as of October 2026, less than two years from now, this entire subject area will be subject to final, preemptive federal regulations. And none of the state or local laws cited in the petition are analyzed under VIDA’s preemption provision.
What about the short time period before October 2026? In other words, assuming DEQ could study, analyze, and promulgate regulations regarding scrubbers, low-sulfur fuel, shore power, graywater, and blackwater before then (obviously not a likely scenario), would Virginia even have such authority to issue short-lived regulations?
The answer is no – even if the petition were to be interpreted as seeking regulation by Virginia DEQ only until October 2026, such regulation would still be preempted. As the petition acknowledges, there is a document called the “General Permit” which was issued by EPA in 2013, which also concerns itself with vessel discharges.[11] In VIDA, Congress mandated that the 2013 General Permit “shall remain in force and effect, and shall not be modified” until the USCG issues its final VIDA regulations – that is, until October 2026.[12] Essentially, the 2013 General Permit was used by Congress as a mandatory placeholder until final VIDA regulations could be issued.
The General Permit also expressly permits scrubbers, with limits for “for exhaust gas scrubber effluent that are generally consistent with those established by International Maritime Organization guidelines for this discharge type.”[13] The General Permit also “contains monitoring requirements for certain larger vessels for ballast water, bilgewater, graywater, and/or exhaust gas scrubber effluent if they discharge into waters subject to the permit.”[14] In other words, the EPA, using guidance from international bodies, has decided not to regulate discharges in the way the petition seeks. So, even if the petition were (somewhat absurdly) interpreted as asking for regulations to be promulgated by DEQ, with a validity only until October 2026, the bans and mandates sought by the petition would have the effect of altering the General Permit, which is prohibited by VIDA.
However interpreted, Dr. Hodson’s petition would lead to regulations clearly preempted by federal law. There is no explanation of why Virginia should step into the vessel discharge area, just as years of federal agency work has resulted in the issuance of a national standard, with only one step remaining before that standard is implemented. The petition should be rejected.
We appreciate the opportunity to provide comments. The Appendix below provides detailed information about Cruise Lines International Association (CLIA) and sustainability policies and practices of its cruise line members.
Sincerely,
Cruise Lines International Association
Appendix: Additional Background about CLIA and member policies and practices
Cruise Lines International Association is the world’s largest cruise industry trade association, providing a unified voice and leading authority of the global cruise community. The association has 15 offices globally with representation in North and South America, Europe, Asia and Australasia. CLIA supports policies and practices that foster a secure, healthy, and sustainable cruise ship environment, for more than 31 million passengers who cruise annually.
Background
The cruise industry is highly regulated and subject to regulations and guidelines developed by the International Maritime Organization (IMO), implemented through National legislation, and enforced through flag state inspections and port state verifications (e.g., U.S. Coast Guard, U.S. Centers for Disease Control and Protection, Federal Maritime Commission, and the Environmental Protection Agency, among others). Every cruise ship receives multiple inspections a year – announced and unannounced – to support implementation of strict environmental and safety regulations. In addition, CLIA cruise line members adhere to a strict and robust set of policies and practices which undergo constant review and improvement and often exceed what international, national, and local laws require.
Use of low-sulphur fuel and EGCS
On January 1, 2020, an international limit on sulphur content in the fuel oil used on board ships came into force, known as “IMO 2020.” This requirement from the International Maritime Organization (IMO) lowers the amount of allowable sulfur content in ship emissions globally from 3.5% to 0.5%. The cruise industry has taken various strides to meet the IMO’s requirements, including the use of compliant fuels, the uptake of alternative fuels, and the use of exhaust gas cleaning system (EGCS) technologies consistent with regulatory requirements and guidance from IMO, the operation of which is authorized by the ship’s Administration.
Fuel oil with a sulfur content at or below .5% is used to curtail pollutants in engine exhaust systems. In designated Emission Control Areas (ECA), such as in Virginia waters which are within the North American ECA, the sulfur content is further limited to no more than 0.1%. Ships must use compliant fuel or an approved alternative that achieves the same emissions result.
EGCS process emissions from ships to almost completely remove sulfur content and significantly reduce particulate matter found in exhaust. Several credible, peer reviewed, science-based studies have found that ships equipped with EGCS have wash water discharge that is well within stringent water quality standards. These include the following:
Greenhouse Gas Reduction
CLIA member cruise lines are actively pursuing net zero emissions by 2050, consistent with the International Maritime Organization’s (IMO) 2023 Strategy on Reduction of Greenhouse Gas (GHG) Emissions from Ships. Cruise lines are reducing emissions at berth and at sea by investing in new ships and engines that allow for fuel flexibility to use low-to zero-GHG fuels, once available at scale; conducting multiple trials and pilot programs to test sustainable fuels and technologies; and employing a range of environmental technologies and practices to advance sustainability initiatives. Each year, the global cruise fleet becomes more efficient as cruise lines embrace new technologies, innovations, and as available, the uptake of alternative fuels.
Shore Power
CLIA champions the advancement of onshore power infrastructure as an important component in the industry’s pursuit of net zero emissions by 2050 and supports continued development of cost-effective infrastructure for clean shore-side electricity in ports where cruise ships call when the net impact delivers an overall emissions reduction.
Plugging into shoreside electricity allows ship engines to be switched off while in port, reducing emissions by up to 98%, depending on the mix of energy sources, according to the studies conducted by a number of the world’s ports and the U.S. Environmental Protection Agency.
Initiatives to install shore-side power align with the cruise industry’s goal to reduce carbon emissions.
CLIA member lines have committed that all ships calling at shore-side electricity (SSE)-capable ports will be equipped to either use SSE by 2035 or be able to use alternative low carbon technologies in port, as available. These are all steps towards the industry’s pursuit of net-zero emissions by 2050.
Across the CLIA cruise-line member fleet, there are now 120 ships (almost half of the total fleet) that are equipped to connect to shoreside electricity. This represents an increase of close to 50% in just two years. CLIA cruise lines led the use of shore power in North America, starting with an agreement with the Port of Juneau in 2003, and since then 10 North American ports have activated at least one shorepower berth able to support cruise ships. However, only 34 ports worldwide, comprising less than 3% of the world’s cruise ports, have at least one cruise berth equipped with shore power where cruise ships can plug in to reduce emissions.
Adopting the petition for a new regulatory rulemaking as drafted will bar cruise ships from calling in the state of Virginia, as Virginia does not have the necessary shoreside infrastructure to allow ships to plug in. Overcoming this limitation will require support and engagement from all parts of society, including government, cities, and industry. Designing, constructing and operating shore power for vessels requires sophisticated systems and represents significant financial investment by all involved. There are many details to be worked out and to be addressed going forward, including port infrastructure investments, financing, and a timeline for availability of electrical power infrastructure. CLIA will continue to work with its port partners as they evolve their shoreside sustainability offerings.
Limits on Wastewater Discharges
CLIA Members recognize the sensitivity of discharging wastewater and follow international, national and local requirements in planning wastewater (sewage and gray water) discharges where permitted, and often, CLIA Member policies are more stringent than federal regulations. CLIA Members are to process all sewage through a sewage treatment plant certified in accordance with international requirements, prior to discharge during regular operations. For ships not able to use onshore reception facilities, and those who routinely navigate beyond the territorial waters of coastal states, treated discharges are permitted only when the vessel is more than 4 nautical miles from the nearest land and traveling at a minimum speed of 6 knots, except in emergencies or due to geographic or technical constraints. Regarding graywater, CLIA Members, at a minimum, discharge graywater only when the ship is underway and proceeding at a speed of not less than 6 knots and at a distance not less than 4 nautical miles from the nearest land, except in an emergency or due to geographic or technical limitations. Sewage discharges from cruise ships are subject to regulations under Federal statues and international requirements, including the EPA’s Clean Water Act (CWA) which provides the statutory framework under which the EPA and the U.S. Coast Guard regulate sewage discharges from vessels; the EPA’s Vessel General Permit (VGP), regulating discharges incidental to the normal operation of vessels operating as a means of transportation (including ballast water, bilge water, graywater, and deck runoff); and the EPA’s Vessel Incidental Discharge Act (VIDA), which will replace the VGP and streamline the patchwork of federal, state, and local requirements for the commercial vessel community. VIDA aims to create a more consistent, nationwide framework for managing incidental discharges by consolidating various federal and state regulations, which are often overlapping or conflicting. Moreover, VIDA largely pre-empts state-specific discharge requirements, bringing all vessels operating in U.S. waters under a unified regulatory regime. Further restricting wastewater discharges as outlined in the petition would be duplicative and counterintuitive to the VIDA.
Under the EPA’s VGP, Virginia is designated as a state with special conditions, meaning it can receive additional protections due to its environmental sensitivity. These areas may have stricter discharge requirements or prohibitions for certain vessel – generated wastewaters to protect local ecosystems and water quality. Virginia’s Chesapeake Bay is one such special area under the VGP that imposes additional restrictions on ballast water discharges, graywater, and other wastewaters.
As part of CLIA’s overarching sustainability focus, cruise lines have committed to not discharge untreated sewage anywhere in the world under normal operations, CLIA members agree to process sewage through a sewage treatment system that is certified in accordance with international regulations, and consistent with national requirements, prior to discharge during normal operations. In addition, cruise lines utilize Advance Wastewater Treatment Systems (AWTS) that operate to a higher standard than shoreside treatment plants in many coastal cities and go well beyond international requirements. Currently, 77% of ships (representing 80% of cruise capacity) that are owned and operated by CLIA-member line cruises have AWTS.
Incident Reporting and Independent Monitoring
Cruise lines self-report certain incidents and violations as part of regulatory compliance. Self-reports and independent monitoring range from onboard safety accidents, environmental violations, public health concerns, and crime reports. Examples of environmental self-reports include waste discharges and air emissions. CLIA cruise lines work closely with federal and local authorities, as well as ports, to ensure compliance with all applicable regulations.
CLIA and its members are proud of the sustainability of the cruise industry and are committed to working with government partners to responsibly reduce the environmental impact of our operations.
Recognizing the highly regulated nature of the entire maritime industry through international and national requirements, including for cruise ships, the Petitioner’s request is largely duplicative with, and pre-empted by, existing Federal regulations. Moreover, the cruise industry has implemented environmental protection and stewardship policies and practices which go above and beyond regulatory requirements.
Footnotes
[1] Petition at 4.
[2] Va. Code § 2.2-4007.
[3] Id., § 2.2-4007(a).
[4] United States v. Locke, 529 U.S. 89, 108 (2000).
[5] Ibid. (emphasis added).
[6] 33 U.S.C. § 1322(p).
[7] Petition at 4.
[8] 33 U.S.C. § 1322(p)(9)(A)(i) (emphases added).
[9] See EPA, Vessel Incidental Discharge National Standards of Performance, Oct. 9, 2024, 89 Fed. Reg. 82027, 82127 (“VIDA National Standards”).
[10] Id. at 82110.
[11] See EPA, Final National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges Incidental to the Normal Operation of a Vessel, 78 Fed. Reg. 21938, 21943 (Apr. 12, 2013) (2013 General Permit).
[12] 33 U.S.C. § 1322(p)(3)(A)
[13] 2013 General Permit, 78 Fed. Reg. at 21943.
[14] Ibid.
