Click for next page ( 167


The National Academies | 500 Fifth St. N.W. | Washington, D.C. 20001
Copyright © National Academy of Sciences. All rights reserved.
Terms of Use and Privacy Statement



Below are the first 10 and last 10 pages of uncorrected machine-read text (when available) of this chapter, followed by the top 30 algorithmically extracted key phrases from the chapter as a whole.
Intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text on the opening pages of each chapter. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

Do not use for reproduction, copying, pasting, or reading; exclusively for search engines.

OCR for page 166
APPENDIX C LEGAL ISSUES AFFECTING REGULATION OF VESSEL CARGO VAPOR EMISSIONS Austin P. Olney and Laurie A. Frost Widespread failure of most of the nation's urban areas to meet air quality standards mandated by air pollution control laws, especially for ozone, has catapulted concern about future strategies for controlling sources of air pollution to the top of the priority list for federal, state, and local officials, health groups, and environmentalists. Areas that fail to meet the statutory deadline of December 31, 1987, set by Congress for meeting the federal ozone standard, face stiff economic sanctions, such as loss of federal highway funds, bans on new construc- tion, and loss of sewage treatment grants. Metropolitan areas across the country are considering new air pollution control measures targeted at smaller industrial sources, such as dry cleaners and automotive body shops, as well as automobiles and other mobile sources, such as marine vessels, in an effort to comply or to show progress toward compliance with the ozone standard by the statutory deadline. These additional sources emit volatile organic compounds, the primary precursors of ozone. 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. The first section presents a general review of the structure of air pollution control laws, and marine pollution and safety laws and regulations. The second section describes how these laws and regula- tions interact, and how they may affect the ability of states and the federal government to regulate emissions from marine vessels. SURVEY AND STRUCTURE OF LEGAL AUTHORITIES The Clean Air Act The Clean Air Act (CAA),1 as the federal air pollution laws are commonly called, is the product of a series of major legi21ative initia- tives from Congress, including the Clean Air Act of 1963, the Air The authors are affiliated with the law firm of LeBoeuf, Lamb, Leiby & MacRae, Washington, D.C. 166

OCR for page 166
167 TABLE C-1 Federal Air Pollution Legislation Legislation Public Law Air Pollution Control Act Air Pollution Control Act Extension Motor Vehicle Exhaust Study Act of 1960 Air Pollution Control Act Clean Air Act of 1963 Motor Vehicle Air Pollution Control Act Clean Air Act Amendments of 1966 Air Quality Act of 1967 Clean Air Act Amendments of 1970 (with technical amendments in the Comprehensive Health Man power Training Act of 1971) Clean Air Act Extension Energy Supply and Environmental Coordination Act of 1974 Clean Air Act Amendments of 1977 (with technical amendments in the Safe Drinking Water Act of 1977) National Commission on Air Quality Steel Industry Compliance Extension Act Department of Housing and Urban 98-45 7/12/83 Development Appropriation Act, 1984 Statutory Date Designation 84 - 159 6/14/55 86 - 365 9/22/59 86 -493 87 - 761 10/9/62 88 - 206 12/17/63 86 - 272 10/20/65 89 - 675 90 - 148 91-604 93 - 15 4/9/73 93 - 319 6/24/74 95 - 95 96 - 300 7/2/80 97 - 23 7/17/81 69 Stat. 3221 73 Stat. 646 6/8/60 74 Stat. 162 76 Stat. 760 77 Stat. 392 79 Stat. 954 10/15/66 80 Stat. 954 11/21/67 81 S tat. 485 12/31/70 84 Stat. 1676 87 Stat. 11 88 S tat. 246 91 Stat. 685 94 Stat. 831 95 Stat. 139 97 Stat. 219 Quality Act of 1967,3 the Clean A5r Act Amendments of 1970,4 and the Clear Air Act Amendments of 1977. 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 pro- gram to control air pollution by dividing responsibility between federal agencies and the states to meet nationwide air quality goals. One objective was ''to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and productive capacity of its population.''6 To accomplish this purpose, Congress directed that National Ambient Air Quality Standards (NAAQS) be esta- blished (in the form of maximum concentration levels) for certain

OCR for page 166
168 criteria pollutants. Congress wanted the air to be clean without providing a definition of what clean was; Congress left the definition of clean to be determined by the Environmental Protection Agency (EPA). Congress also stated that pollution emissions from new sources should be constrained' but again, the degree of constraint was left up to EPA. The Clean Air Act Amendments of 1977 retained the basic structure of the 1970 law, but added new compliance dates and enforcement mecha- nisms. EPA was directed to set and enforce the regulations required by the CAA. EPA developed the criteria and set primary and secondary standards for certain pollutants deemed detrimental to public health, based on scientific and technical data, while the states were respon- sible for formulating and implementing a state plan to achieve, main- tain, and enforce the federal standards. The C M established three regulatory schemes: one for pollution emissions from existing stationary sources, the second for emissions from future or "new" stationary sources, and the third for hazardous pollutants. The CAA applies to both major stationary sources, such as industrial plants or facilities, and mobile sources, such as automobiles and airplanes. In addition, indirect sources, such as parking lots and highways, which do not emit pollutants but which attract mobile sources are subject to regulation under the State Implementation Plan (SIP). The CAA does not expressly provide the authority to regulate marine vessel emissions. Air Quality Control Regions Section 107 requires each state to divide the area within its borders into smaller regions called Air Quality Control Regions (AQCRs) so that the regulations for air pollution control can be specified on a source-specific basis [42 USC 74073. These regions are listed in 40 C.F.R. Part 81 (1986~. EPA regularly publishes data indicating which AQCRs are in compliance with primary and secondary standards, and which are not. Once the ambient concentrations of pollutants in an AQCR are determined, the region is placed into one of two classes: 1. Attainment areas, in which the ambient air concentration is below that specified in the NAAQS; and 2. Nonattainment areas, in which the ambient air concentration is above that specified in the NAAQS. Air Quality Criteria Section 108 directs EPA to publish, and to periodically revise, a list of air pollutants that "may reasonably be anticipated to endanger public health or welfare" t42 USC 7408(a)~1~(A)~. Under this provi- sion, EPA needs to show a reasonable basis for its determination that there is a risk of harm to the public, rather than evidence of actual harm, before regulating a pollutant. In 1971, standards were initially promulgated for six so-called criteria pollutants: sulfur dioxide

OCR for page 166
169 (SO2), particulate matter or dust (PA), nitrogen oxides Knox), carbon monoxide (CO), photochemical oxidants or "ozone," and hydro- carbons.8 In 1978, standards for another pollutant--lead--were added. After a pollutant is listed, EPA is required by section 108(a)~2) to publish air quality criteria for that pollutant, reflecting the latest scientific knowledge useful in indicating its identifiable effects on public health or welfare [42 USC 7408(a)~2~. National Ambient Air Quality Standards Based on the criteria established for each pollutant listed under section 108, section lO9 (a) directs EPA to promulgate NAAQS for each pollutant [42 USC 7409(a). The NAAQS are only minimum standards. Section 116 permits the states to set more rigorous standards under their SIPs t42 USC 74164. The NAAQS are not directly enforceable; all emission limitations are established to meet the NAAQS. It is the emission limits which are enforceable. Two standards are to be set for each pollutant. Primary ambient air quality standards are standards the attainment and maintenance of which are necessary to protect the public health t42 USC 7409(b)~1~. Secon- dary ambient air quality standards are standards the attainment and maintenance of which are necessary to protect the public welfare from known or anticipated adverse effects associated with the presence of the corresponding pollutants in the ambient air t42 USC 7409(b)~2~. Achievement of these uniform standards throughout the country forms the primary goal of the CAA. The NAAQS appear in 40 C.F.R. Part 50. The standard for ozone is found in 40 C.F.R. 50.9. EPA is not required to consider factors such as technology or costs of compliance in setting ambient standards. 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. State Implementation Plans The CAA places primary responsibility for attaining and maintaining the NAAQS with the states through development and adoption of a SIP that targets specific emission sources and sets limits on their emissions at levels that let the state meet the nationally set air quality stan- dards. Section llO(a) specifies that each state must develop and submit to EPA a SIP that provides a control strategy for the attainment, main- tenance, and enforcement of the NAAQS by that state in each air quality control region within its boundaries [42 USC 7410(a)~1~. EPA must approve or disapprove the state plans within 4 months after submission of the proposed plan t42 USC 7410(a)~2~. The administrator may approve a state plan only if the plan meets the requirements of section llO(a)~2), which include, among other things, commitments to implement pollution-reduction programs pursuant to enforceable timetables t42 USC 7410(a)~2~.

OCR for page 166
170 Each SIP describes the air quality in each AQCR in the state, sets forth emission inventories of all sources that emit the criteria pollu- tants, and establishes emission limitations and compliance schedules for each source. A state, through its SIP, may order particular factories and other sources of pollution to reduce emissions to a target level by a certain date. 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. The 1977 CAA Amendments also require the states to classify the state's regions according to whether they are in compliance with air quality standards. The consequences of this designation are described below. SIPs are the keystone of EPA's air pollution control effort. Once approved by EPA, a SIP becomes part of the fedegal/state cooperative framework and must be carried out by the state. It can be enforced by either the state or EPA. Congress recognized that a state may need to revise its SIP to reflect changed local needs, new technology, or other developments. Accordingly, the CAA provides that a state may propose periodic revisions of its SIP to EPA. As with original pro- posals, EPA must approve revisions that satisfy the requirements listed in section 110(a)~2) t42 USC 7410(a)~2~. Section 110 of the CAA also requires EPA to notify a state and to set a time limit for revision of the state's SIP when available information indicate the SIP is inadequate to achieve a NAAQS by the statutory deadline t42 USC 7410(a)~2~; (c)(l)(C). Industry challenges to the technological and economic feasibility of the emission limitations in a SIP 1 lay be heard only at the state level when a SIP is under consideration. The same is true of challenges to the allocation among various sources of the burden imposed by emis- sion limitations in a SIP.12 Therefore, early involvement by regu- lated industries in state proceedings for the adoption and revision of SIPs is essential to preserving rights to challenge the technological or economic features of a SIP regulation. Standards of Performance for New Stationary Sources The CAA directs EPA to establish new source performance standards (NSPS) under section 111 for new stationary sources and major modifica- tions of existing stationary sources in particular industrial cate- gories. These standards establish national limits for emissions from each category of sources, to keep new pollution at a minimum while emissions from existing sources are reduced to meet air quality goals. The NSPS differ from ambient standards in that they are developed for particular sources of pollutants rather than to air quality gene- rally. They target specific pollutants from specified industries. They are designed to allow limited industrial growth. Because they are esta- blished at a national level, they preclude any state from becoming a "pollution haven" and attracting industry by lenient air quality stan- dards. The NSPS must reflect the "best system of continuous emissions

OCR for page 166
171 reduction which (taking into account the cost of achieving such emission reduction . . .) the Administrator determines has been adequately demon- strated" t42 USC 7411(a)~1~(C)~. This "best technology" requirement recognizes that it is usually more economical to build emission controls into new sources than to retrofit existing sources. The standards are minimums; states may impose more stringent standards. As of July 1, 1986, NSPS had been promulgated for more than 51 source categories. These are published in 40 C.F.R. 60.16 (1986~. If it is not feasible to establish an emission standard, EPA may instead prescribe a design, equipment, work practice, or operation standard. The work practice regulation must be converted to a numerical emission limit as soon as it is practicable to establish such limits. Operators subject to NSPS must undergo preconstruction and prestart-up review and must demonstrate compliance. EPA authority can be delegated to states pursuant to section lilac) (42 USC 7411(c). In addition, if EPA sets a NSPS for a source cate- gory, then states must regulate nonhazardous pollutant emissions not covered by air quality criteria from existing sources in that category t42 USC 7411(d). Waivers are provided for new sources that use ''innovative technology" t42 USC 7411 (j ~ ~ . Hazardous Air Pollutants Under section 112 of the CAA, EPA is required to control hazardous pollutants discharged into the air [42 USC 7412~. A "hazardous air pollutant" is defined as one that "causes, or contributes to, air pollution which may reasonably be anticipated to result in an increase in mortality" or "serious irreversible, or incapacitating reversible, illness," and for which no ambient air quality criteria or standards have been promulgated pursuant to section 108 or 109 t42 USC 7412(a)~1~. EPA is authorized to promulgate such national emission standards for hazardous air pollutants (NESHAPS) for both new and exist- ing stationary sources. These pollutants are deleterious to health, but are not produced in large enough quantities to justify imposition of full NSPS programs. Implementation and enforcement of NESHAPS may be delegated to the states pursuant to section 112(d) similar to the delegation of authority for NSPS pursuant to section lll~c) t42 USC 7412(d). NESHAPS are published in 40 C.F.R. Part 61 (1986) for beryllium, asbestos, mercury, vinyl chloride, benzene, coke oven emissions, inorganic arsenic, radio- nuclides, and radon-222 emissions. Prevention of Significant Deterioration The 1977 amendments put in place a program for the "prevention of significant deterioration'' (PSD), a concept developed by EPA to deal with new industrial growth in areas of the country that had attained NAAQS to ensure that economic growth will not degrade existing clean air resources. The PSD program is intended to preserve the attainment

OCR for page 166
172 status of AQCRs that already meet the NAAQS t42 USC 7470-74913. All PSD areas in a state are designated as Class I, Class II, or Class III areas, reflecting the amount of industrial growth and resulting dimi- nution of air quality that will be allowed in each area. Class I areas are the most pristine areas, such as large national~parks and wilderness areas. The amendments in section 163(b) presently set out the maximum increases allowed in the concentrations of sulfur dioxide and parti- culate matter t42 USC 7473(b). EPA is directed to extend the appli- cability of PSD increment requirements to other pollutants as soon as possible. For pollutants other than sulfur dioxide and particulates, the maximum allowable concentration may not exceed the NAAQS t42 USC 7473(b). Preconstruction Review The PSD program calls for rigorous precon- struction review of new sources and modifications to existing sources, including a permit system for imposing emission limitations and technology requirements on specific sources. Each state's SIP is to require the review of such sources. A new source must undergo precon- struction review if it is a "major emitting facility," defined as a stationary source falling into one of 28 categories of sources that emit, or have the potential to emit, 100 or more tons per year of any air pollutant, or any other stationary source with the potential to emit 250 or more tons per year of any air pollutant t42 USC 7479~1~. The source categories are published at 40 C.F.R. 52.21(b) (2~(iii). A modification of an existing major stationary source that creates a "significant" net increase in emissions of a pollutant regulated under the CAA is also subject to preconstruction review requirements t40 C.F.R. 52.21(b)~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. Generally, the review applies to permits and procedures that are required before a plant commences construction. Technological Compliance A proposed major source or modification of an existing source in PSD areas must apply the best available control technology (BACT) for each pollutant regulated under the CAA that would emit in greater than de minimus amounts. BACT is defined as "an emis- sion limitation based on the maximum degree of reduction of each pollutant . . . emitted from or which results from any major emitting facility, which the permitting authority . . . determines is achievable for such facility'' t42 USC 7473~3~. BACT is determined on a case-by- case basis by EPA or by states with approved PSD revisions to their SIPs. Congress has stipulated that factors such as cost, available technology, energy consumption, and other non-air environmental impacts be taken into account in establishing BACT in PSD regulations. Thus, BACT will establish the effective NSPS in PSD areas.

OCR for page 166
Nonattainment of the NAAQS Designation of Nonattainment The 1970 Act anticipated attainment of national primary ambient air quality standards by mid-1977. However, at the time the 1977 Amendments were passed, it was clear that despite deadlines, many areas of the country did not meet this target. Conse- quently, Congress adopted Part D of the 1977 CAA Amendments, which deals with nonattainment of the NAAQS. Areas that did not achieve the NAAQS were designated as nonattain- ment areas for the various pollutants. 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 nonat- tainment areas to seek reductions in new and existing sources of pollutants. Section 172 provided that reasonably available control technology (RACT) was required for existing sources t42 USC 75023. Attainment was to be achieved "as expeditiously as practicable," with December 31, 1982 as the deadline for most criteria pollutants, but with December 31, 1987 as the deadline, under specified conditions, for CO and ozone t42 USC 7502(a)~1) and (2~. PSD and nonattainment require- ments are not mutually exclusive: a region may be considered PSD for some pollutants and nonattainment for others. New Source Review The 1977 Amendments set up a new source review program for nonattainment areas similar to the one set up under the PSD program for attainment areas. Prior to these amendments, attainment of the NAAQS was a precondition for construction and/or modification of sources in nonattainment areas. Consequently, a literal reading of EPA's regulations would have prohibited all new industrial growth. EPA developed a concept referred to as the ''emissions offset" requirement to allow limited industrial growth in nonattainment areas. This concept was adopted by Congress in the 1977 amendments. Any major source or major modification of an existing source in a state that would cause or contribute to a violation of a NAAQS within a designated nonattainment area is subject to preconstruction review [Section 1733. A major source is defined as a source that emits, or has the potential to emit, 100 tons per year or more of any pollutant sub- ject to regulation under the CAA t40 C.F.R. 51.18(j)~1~(iv)~. A major modification is defined as a physical change or change in the method of operation of a major source that would result in a significant emission, increase of any pollutant subject to regulation under the CAA t40 C.F.R. 51.18(j)~1~(v)~. Technological Compliance Section 173 provided that a proposed new source or modified major existing source must use emission control technology based on the lowest achievable emission rate (LAER) [42 USC 7503~2~. LAER is defined as "that rate of emissions which reflects the most stringent emission limitation which is contained in the imple- mentation plan of any State for such class or category of source,)' or ''the most stringent emission limitation which is achieved in practice by

OCR for page 166
174 such class or category of source, whichever is more stringent" [42 USC 7501~3~. This means that each time a newer, more stringent standard is achieved anywhere for a particular source, it becomes the new LAER standard for that source for the entire country, unless an owner or operator of a facility can demonstrate that such a limitation is not achievable by him. Applicable NSPS are the effective maximum emission allowances for LAER in nonattainment areas. There is no stipulation that factors such as cost, available technology, energy consumption, and other environ- mental impacts must be taken into account in determining LAER in nonattainment regulations. Thus, the LAER standard is the effective NSPS in nonattainment areas for all new sources. Emissions Trading Policy As more experience was gained dealing with air quality regulations and emissions control technologies, it became apparent to EPA that the total quantity of pollutants emitted by a plant is more important than the amounts emitted by individual point sources within a plant, at least in terms of the public health effect. 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. An interim emissions trading policy was published in 198213 to encourage states to use emissions trades to achieve more flexible and rapid attainment of the NAAQS. This policy incorporla4ed EPA's offset policy and bubble policy, originally issued in 1979, and initiated a program for the use and banking of emission reduction credits (ERCs). This program allowed industry to make reductions and bank them for later use in a trade, or to meet a standard for a new source. These strate- gies, as well as ''netting"--a scheme that may exempt plant expansions from new source review (NSR) (but not from applicable NSPS) if they can demonstrate there will be no "significant net increase" in plantwide emissions--were recently addressed in EPA's final emissions trading policy, published in December 1986.15 In general, emission trades must be for the same air pollutant and must be provided for in a state SIP. The final Emissions Trading Policy allows use of trades in areas not complying with CAA ambient standards, and in areas of a state which lacks a demonstration to show that its SIP in those areas will eventually attain the standard. The "baseline" for these trades Is stipulated as actual emissions levels, or SIP-allowable emissions levels, whichever is lower. The baseline for a given source is that level of emissions below which any additional reductions may be credited for use in trades. In addition, emission reduction "credits" from state efforts to control mobile sources may be used to meet SIP requirements applicable

OCR for page 166
175 to existing stationary sources, provided such reductions are surplus, permanent, quantifiable, and enforceable. All such trades must be implemented as case-by-case SIP revisions.16 Interstate trading is permitted, but also requires case-by-case SIP revisions. Firms applying for trades in these areas may not rely on banked reductions made before their applications for trading were submitted. State assurances that efforts to meet an ambient standard will not be impaired by a proposed bubble are required for the first time for all trades taking place in primary nonattainment areas lacking demonstration plans to meet CAA standards. In such areas, a net air quality benefit that will produce extra interim environmental progress must be demon- strated. One problem is that most large industrial pollution sources already are tightly regulated, and many future reductions (under the trading policy) 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 emis- sions 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. The Bubble Concept In 1979, EPA promulgated what has become known as the "Bubble Policy" as an alternative emission reduction option. This approach, which imposes controls on an entire plant rather than on each individual source, is designed to promote innovations in pollution con- trol by allowing use of less costly techniques for achieving a given amount of pollution reduction. The bubble concept places an imaginary bubble over an entire plant, and all emissions are measured as coming out of a single hole in the bubble. The bubble concept is merely an extension of the offset policy in that it allows internal offsets within a plant. By permitting an owner or operator to place higher levels of emissions control on selected point sources, with lower marginal control cost, the bubble concept achieves more flexibility in air pollutant reduction and encourages emissions reduction in a more cost-efficient manner. Use of the bubble has been held to be proper policy with respect to existing sources in PSD and nonattainment areas, but new sources are not permitted to bubble with existing sources to mitigate the requirements of NSPS in either PSO or nonattainment areas. Use of the bubble is only permitted if it does not result in any increase in applicable net base- line emissions 7 in any area, whether attainment or nonattainment, except under stringent conditions. Bubbles in primary ozone nonattain- ment areas are permitted, but must use the lowest of actual SIP- allowable or RACT-allowable emissions baseline for each source involved in the trade, and also must contribute to progress toward attainment by providing a 20 percent net reduction in emissions remaining after application of the baseline to all sources involved in the trade.l8

OCR for page 166
176 Offset Policy Section 173~1~(A) of the 1977 Amendments put in place an offset system that allows construction of new sources or expansion of existing sources in nonattainment areas, only if emissions from such new or expanded sources are offset by emission reductions at existing facili- ties in the area t42 USC 75031A. This system allows incremental growth while progress is still being made toward achievement of the NAAQS. The offset policy requires that any major new source construc- tion or modification in nonattainment areas be accompanied by corre- sponding surplus decreases in emissions elsewhere to more than offset their emissions, so that the total emissions in the AQCRs do not increase, and the ambient pollutant concentration in the air does not increase . Netting Netting may exempt modifications of existing major sources from certain preconstruction review requirements under NSR, provided there is no net emissions increase within the major source. By "netting out," the modification is not considered major and is therefore not subject to all preconstruction review requirements under 40 C.F.R. Part 51. Net- ting's scope is determined by the definition of source, for review of major modifications. In PSD areas, a single, plantwide definition may be used which allows actual emission reductions anywhere in a contiguous plant to compensate for potential emission increases at individual point sources within the plant. In nonattainment areas, the plantwide definition may be used, or a dual definition, in which emission increases at either the plant as a whole or individual emitting sources will trigger NSR. Banking of Emission Reduction Credits When an owner or operator of an existing industrial plant reduces the emissions of a particular pollu- tant beyond the baseline level required in the SIP through control technology or by closing down a portion of a plant, he gets a credit for the excess emission reduction. Banking of these credits has become a standard procedure, and a market in these credits has rapidly devel- oped. In effect, an owner or operator can accumulate reduction credits for sale or later use for new construction. An emission reduction credit is not synonymous with a simple emis- sion reduction or offset. The credit extends only to that portion of the reduction which is in excess of what is required, and which is made enforceable by the state at the time it is banked.20 The emission reduction credit (ERC) is an asset of the firm and can be bought by, or sold to, other sources. 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. 1

OCR for page 166
211 meets on marine vessels (e.g., standards for inspection, regulation, smoke abatement, or discharge of ballast in state territorial waters) is less clear. As a general rule, however, state laws that impose non- design requirements on marine vessels are preempted if they (a) directly conflict with any express provision of federal law or regulation; or (b) intrude into an area where the federal interest is so predominant, and the need for national uniformity so great, that such lawsggnd regulations are precluded--even where Congress has not acted. In Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440 (1960), the Court held that a Detroit smoke abatement code limiting vessel emissions during loading and unloading was not preempted by federal law because there was ''no overlap between the scope of the federal ship inspection laws and that of the municipal ordinance" i362 U.S. at 446~. The Court found that the sole aim of the Detroit ordinance was the ''elimination of air pollution, to protect the health and enhance the cleanliness of the local community," while the federal regulatory scheme was designed to ensure "seagoing safety of vessels subject to inspection" [Id. at 4454. The continuing validity and precedential effect of this decision is subject to debate. Although the case has never been overruled, it must be emphasized that it was decided prior to the enactment of the CAA, PWSA, and PTSA. Moreover, the Court expressly noted that its considera- tion of the Detroit ordinance was limited to the enforcement of criminal provisions for violation of the smoke emission regulations, and did not encompass a review of the validity of the inspection sections of the ordinance [Id. at 442, n.l]. The Court also stated that a state "may not impose a burden which materially affects interstate commerce in an area where uniformity of regulation is necessary'' Lid. 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. The Commerce Clause The commerce clause,l by its terms, confers power on Congress to regulate interstate and foreign commerce. Even in the absence of an affirmative congressional exercise of the commerce power, however, the states may not Enact laws that unduly restrict the free flow of inter- state commerce. 01 The analysis of the validity of a state law under the commerce clause is distinct and independent from such an analysis under the supremacy clause. Thus, if a state or local law or regulation affecting maritime activities is not preempted by federal law or regula- tions, it may still be invalid if it creates an undue burden on inter- state or foreign commerce. If a state law discriminates against out-of-state verbals or foreign vessels, it is per se invalid under the commerce clause. If a state or local law or regulation affecting marine vessels or maritime activities does not discriminate against out-of-state vessels, the

OCR for page 166
212 courts employ a balancing test to determine its validity under the commerce clause. Pursuant to the test set forth in Pike v. Bruce Church, Inc.. 397 U.S. 137, 142 (1970), if a state law or regulation is nondiscriminatory, effectuates a legitimate local purpose, and has only an incidental effect on interstate commerce, the law or regulation will be upheld, unless the burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits. In short, the court must balance the relative burden imposed on interstate or foreign commerce against the putative local benefit. In conducting this balancing test, the court must determine whether the local safety benefits advanced by the state are real or illu- sory.103 In addition, the court should not view the state or local law in isolation, but rather should consider the cumulative effect on commerce of numerous, and often conflicting, state laws addressing the same subject. Using the Pike v. Bruce Church analysis, a court could likely find that a state law restricting dockside vessel emissions is in violation of the commerce clause, in view of the Coast Guard's existing comprehen- sive regulation of vessels. Of course, the provisions of each state law will vary, and such laws must be considered individually in terms of both their effect on commerce and the local benefits likely to be achieved. As an initial matter, it should be noted that in Babcock & Wilcox Co. v. Township of Parks, Armstrong County. Pa.. Cir. Action No. 85-3035 (W.D. Pa. May 14, 1986), the court considered the interaction of section 116 of the CAA and the commerce clause. Section 116 of the CAA, discussed previously, preserves the rights of states to adopt or enforce more stringent air emissions standards or limitations and abatement or control measures. Upon consideration of this provision, the court held that it did not support the inference that Congress intended to exempt any action taken the states pursuant to the CAA from the reach of the commerce clause. The mandatory use of VOC control equipment on vessels may entail significant costs and risks. State requirements that result in design modifications and retrofitting of vessels may conflict with federal law. Moreover, if vessels do not have required equipment on board, they may be denied entry to certain ports or subjected to fines and criminal penalties for failing to adhere to state laws. This problem may be exacerbated if many states enact laws governing VOC emissions that require different modifications. Structural changes to a vessel to accommodate a terminal in one state may render the vessel incompatible with a terminal in another state. Thus, state laws may impose a significant burden on interstate commerce. 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. More- over, if vessel emissions could be reduced, the efficacy of such reduc- tions in improving overall state air quality may not be sufficient to justify the significant burden on commerce imposed thereby.

OCR for page 166
213 International Considerations Regulation of Foreign Commerce: More Rigorous Scrutiny There is a heightened federal interest in occupying a field through uniform federal regulation when the area of law involves international relations t Chevron v. Hammond. 726 F.2d at 4833. Very often, the ves- sels loading or unloading at marine terminals are foreign-flag vessels subject to the jurisdiction of foreign nations as well as to IMO treaties. In some cases, the foreign-flag vessels are the national property of foreign governments, such as Poland or the Soviet Union. Efforts to impose unilaterally the federal, state, and local laws and regulations governing vessel emissions may adversely affect diplomatic relations between the United States and such nations. CONCLUS ION The specific delegation of marine safety responsibilities to the U.S. Coast Guard is clear and comprehensive. The extent of federal and state air quality jurisdiction over marine vessels is far from clear. A review of the authorities and cases suggests that air quality regulation of vessels is circumscribed by the presence of federal marine safety and environmental regulations. 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 unifor- mity and deference to international regulation of vessels and the marine environment further limit the extent to which states may regulate marine vessels. NOTES 242 USO -7401-7642 (1982 & Supp. III 1985). Pub. L. No. 88-206, 77 Stat. 392. 3Pub. L. No. 90-148, 81 Stat. 485. 4Pub. L. No. 91-604, 84 Stat. 1676. 5Pub. L. No. 95-95, 91 Stat. 685. 6Clean Air Act Amendments of 1970, 101(b)~1), 42 USC 7401. 7In 1979, EPA changed the chemical designation in the standard for photochemical oxidants to ozone, thereby excluding about 10 percent of the compound oxidants, previously covered [44 Fed. Reg. 8202 (Feb. 8, 19793]. EPA revoked both the primary and secondary standards for hydrocarbons because the regulations were found to be technically inadequate. EPA also found that hydrocarbons, as a class, do not cause adverse health or welfare effects at or near ambient levels [48 Fed. Reg. 628 (Jan. 5, 1983~. 9Friends of the Earth v. Carey 535 F.2d 165 (2d Cir. 1976). 1uSection llO(a)(3) does not specify how long EPA has to accept or reject a proposed revision, but courts have generally held that EPA must

OCR for page 166
214 act on proposed revis ions within 4 months, the same time given for rulings on original proposals . American Cyanamid v. EPA. 25 E . R. C . 1585 (5th Cir. 1987~; Council of Commuter Organizations v. Thomas. 799 F. 2d 879, 888 (2d Cir. 1986); Ducluesne Light Co. v. EPA. 698 F.2d 456, 471 (D. C. Cir 1983); but see United States v. National Steel Corp., 767 F.2d 1176, 1182 n.1 (6th Cir. 1985) (4-month rule applies only to genelll s tate plans and not to revis ions). Union Electric Co. v. EPA. 427 U. S. 246 (1976) . 1 ~ retrain Or. NRDC, Inc., 421 U. S. 60 (1975) . 13EPA, "Interim Emissions Trading Policy Statement,'' 47 Fed. Reg. 15,076 (Apr. 7, 1982). 1444 Fed. Reg. 71,779 (Dec. 11, 1979). 15EPA, "Emissions Trading Policy Statement; General Principles for Creation, Banking and Use of Emission Reduction Credits," 51 Fed. Reg. 43, 8~4 (Dec. 4, 1986~. 6EPA intends to issue a separate "mobile source bubble policy.' See Inside EPA Weekly Report, "Final EPA Bubble Policy Clarifies Toxics, Fugilive Dust Trades," at 11 (Nov. 21, 1986~. 7The baselines for sources participating in a bubble must take into account three factors relevant to total emissions: emission rate, capacity utilization, and hours of operation. 51 Fed. Reg. at 43,815. 1 51 Fed. Reg. at 43,816. See Chevron U.S.A., Inc. v. NRDC 467 U.S. 837 (1984). 20The credits are not federally enforceable until used. 2~51 Fed. Reg. at 43,82S. 23See NRDC v. EPA, 475 F.2d 968 (D. C. Cir. 1973) . EPA is planning to regulate ozone-forming hydrocarbon emissions from motor vehicles through a combination of gasoline volatility controls and more stringent on-board vehicle emission recovery system requirements (Stage II controls). Refueling emissions can be captured by installing either Stage II nozzles or other special equipment on gasoline pumps, or special emissions control canisters in cars. 24The standard is attained when the expected number of days per calendar year with maximum hourly average concentrations above 0.12 ppm is e,5a1 to or less than 1 t40 C.F.R. 50.93. See, e.g., Enact Rep., Current Developments (BNA), "Tightening of Ambient Ozone Standards Recommended By EPA Air Office Staff Paper," at 2155 (Apr. 4, 1986~. 26See EPA, "Risk Assessment of Stratospheric Ozone Depletion,'' Stafi7Report at Chapter 14, Nov. 1986. "Memorandum from EPA General Counsel to Administrator on Legality of Sustained Progress Program for Ozone Under Air Act," Nov. 25, 1986. 28Id 29EPA is planning to publish a Federal Register notice in late May 1987 describing the agency's course of action on municipal nonattainment of the ozone standard. See Env't Policy Alert, at 21 (Mar. 25, 1987~. EPA will also initiate review of 20 SIPs that have yet to be approved which contain provisions on ozone attainment. 30EPA, 'iStudy of Gasoline Volatility and Hydrocarbon Emissions from Motor Vehicles " Office of Mobile Sources, Nov. 21, 1985.

OCR for page 166
215 31Vehicle evaporative control systems are designed to meet hydrocarbon standards when the vehicle is fueled with certification test gasoline, which has a typical RVP of 9 psi. Evaporative emissions are significantly greater with fuels of higher volatility; therefore, evaporative emissions from motor vehicles operating on commercial gasoline are well above certification standards. See Inside EPA Weekly Report, "EPA Sends OMB Proposal for On-Board Vehicle Gas Marketing Controls" at 1, 9 (Mar. 20, 19879. The current evaporative emissions of gasoline can be reduced either through commercial RVP controls or vehicle modifications; both approaches have the potential for significant VOC reductions. Because commercial fuel content has an immediate impact on the entire motor vehicle fleet (unlike strategies that affect only new vehicle design), greater short-term emission reductions are achievable via this strategy. One EPA official predicts that limiting summertime gasoline RVP to 9 psi could reduce motor vehicle hydrocarbon evaportive emissions by 53 percent in 1988. See Env't Rep. (BNA) Current Developments, "EPA Sends Vapor Recovery Proposal to OMB, Includes Onboard, Fuel Volatility Controls," at 1995 (Mar. 27, 1985~. EPA already regulates bulk gasoline deliveries from tank trucks, which is known as Stage I control. 34A proposed New Jersey regulation would require installation of vapor recovery systems on gasoline pumps by December 31, 1987 at gasoline stations that pump more than 40,000 gallons a month, and by December 31, 1988 at stations that pump 10,000 to 40,000 gallons monthly. See Env't Rep. (BNA), Current Developments, '"Petroleum, Auto Industries Differ Over N.J. Vapor Recovery Plan for Gas Pumps," at 1020 (Oct. 31, 1986~. New Jersey officials contend that the regulation, when fully implemented, will reduce VOCs by 12,950 tons per year and save 4 million gallons of gasoline annually. In addition, all gasoline stations on the Missouri side of the St. Louis metropolitan area must be equipped with a vapor recovery system by the end of 1987 under a regulation adopted in 1986. 5See Env't Rep. (BNA), Current Developments, "Safety Issue Clouds Vapor Recovery Plan as Dingell, Insurers Question EPA Proposal," at 3 (May 1, 1987~. 36See Env't Rep. (BNA), Current Developments, "NRDC notifies New York, EPA of Intent to Sue to Force Air Act Standard Attainment," at 979 (Oct. 24, 1986~; Inside EPA Weekly Letter, "Environmentalists Sue EPA, New jersey, New York Over No Ozone Controls," at 1-3 (Jan. 30, 1987~. 7The suit was filed on November 18, 1986 by the Los Angeles-based Western Oil and Gas Association. See Western Oil and Gas Association v. EPA, CV 86-7530TJH TX (C.D. Cal.~. See also Env't Rep. (BNA), Current Developments, "Oil Industry Group Challenges EPA Program for Meeting Air Quality Standards in California," at 1303 (Dec. 5, 1986~. 8Abramowitz v. EPA. Civ. No. 84-7642 (9th Cir.~. Abramowitz filed suit in 1984, followed by negotiations with California and EPA over modifications to the SIP to attain standards in the South Coast Air Basin. After California and EPA trial to carry out an agreement on the reasonable extra efforts program, Abramowitz asked the court to allow him to continue to prosecute his challenge of the program. See Env' t

OCR for page 166
216 Rep. (BNA), Current Developments, '"California Plan Inadequate to Meet Ambi3egt Air Quality Standards, Suit Charges," at 1620 (Jan. 23, 1987~. See Enact Rep. (BNA), Current Developments, "Wisconsin Begins Preparing Suit Against EPA, Illinois, Indiana over Ozone Attainment Issue " at 979 (Oct. 24, 1986~. resee Env't Rep. (BNA), Current Developments, "New England Legal Group Threatens Suit Over Ozone Compliance By Massachusetts," at 1497 (Jan 2, 1987~. 41Conf. Rep. No. 1783, reprinted in 1970 U.S. Code Cong. & Admin. News 5381. 42See Title II, Emission Standards for Moving Sources, 42 USC 7535 - 7574. 43However, California has obtained a waiver permitting it to set automobile emissions standards that are different from the national standards. 44An indirect source review program is a facility-by-facility review program to take necessary measures to ensure that a new or modified indirect source will not attract mobile sources of air pollution, the emissions from which would cause or contribute to air pollution concentrations t42 USC 7410(a)~5~(D)~. 45See Pub. L. No. 95-95, 91 Stat. 685, 695-96 (1977~. 4645 Fed. Reg. 52,676 (Aug. 7, 19801. Id. at 52,695-696. 48These are emissions of vessels occurring when the vessels are moving to or leaving from marine terminals. 4947 Fed. Reg. 27,554 (June 25, 1982~. 5046 Fed. Reg. 61,613 (Dec. 17, 1981) (emphasis in original). 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. 52The factors of "proximity" and "control" are applied in deciding whether to combine a particular pollutant-emitting activity with other activities in defining what is a stationary source. See 45 Fed. Reg. 6803551980). 46 Fed. Reg. 7182 (1981). 54See letter from Jananne Sharpless, secretary of environmental affairs, State of California, to Secretary Elizabeth Dole, U.S. Depart- ment55f Transportation, Washington, D.C., May 8, 1986. District Rule 327, "Organic Liquid Cargo Tank Vessel Loading''; Rule 205.C, "New Source Review (NSR)/Prevention of Significant Deterioration (PSD)." 56Recently, the California state senate voted to prevent air quality management officials from ordering marine vessels to shut off their engines while docking under the proposed rule. See "Smog Rule Barred in Calif.," Journal of Commerce, at 1B (May 18, 19879. 57See Summary of Engineering Analysis, Lands ea Oil Company, BAAQMD Staff~Report, Nov. 3, 1986. 59Rule 17-2. 650~1) (f)9 and 10. 48 Fed. Reg. 36, 139 (Aug. 9, 1983~. 6048 Fed. Reg. 51,472 (Nov. 9, 19839.

OCR for page 166
217 6~48 Fed. Reg. at 51,478. Tex. Rev. Civ. Stat. Ann. art. 4477-5 (Vernon 1976 & Supp. 1986~ Scurry v. Texas Air Control Board, 622 S.W. 2d 155 (Text Civ. App. Austin 1981, writ ref'd n.r. e . ~ . 64Section 7 . 05 ~ a) ~ 3 ~ . Section 7 .05 (b) . 66Report of the Clean Air Study Committee to the 70th Legislature, Nov. 1986. 67Pub. L. No. 92-340, 86 Stat. 424. 68Pub. L. No. 95-474, 92 Stat. 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. Organic liquids such as crude oil, gasoline, petroleum products, and petrochemicals all contribute VOC emissions in varying degrees depending on volatility, loading rates, and temperature. 70See H.R. Rep. No. 338, 98th Cong., U.S. Code Cong. & Admin. News 924. 7 1 ~rid ~ r ~ cow 1st Sess., reprinted in 1983 - see, For example, "o UREA 99 J3U ~ - ~ ~ (governing inspection of veSs7els ) ~ See, generally, 33 C.F.R. Subchapter O (Pollution): Part 155 (Oil Pollution Prevention Regulations for Vessels) and Part 157 (Rules for the Protection of the Marine Environment Relating to Tank Vessels Carrying Oil in Bulk); 46 C.F.R. Subchapter D (Tank Vessels): Part 30 (General Provisions), Part 31 (Inspection and Certification), Part 32 (Special Equipment, Machinery, and Rule Requirements); Subchapter F Marine Engineering): Part 56 (Piping Systems and Appurtenances), Part 57 (Welding and Brazing), Part 61 (Periodic Tests and Inspections), and Part 64 (Marine Portable Tanks EMPTY; 46 C.F.R. Subchapter I (Cargo and Miscellaneous Vessels): Part 91 (Inspection and Certification), Part 92 (Construction and Arrangement), Part 93 (Stability)' Part 96 (Vessel Control and Miscellaneous Systems and Equipment), Part 97 (Operations), and Part 98 (Special Construction, Arrangement, and Other Provisions for Certain Dangerous Cargoes in Bulk); 46 C.F.R. Subchapter O (Certain Bulk Dangerous Cargoes): Part 150 (Compatibility of Cargoes and Operational Requirements for Bulk Liquid Hazardous Waste Cargoes) and Part 153 (Safety Rules for Self-propelled Vessels Carrying Hazardous Liquids); 46 C.F.R. Subchapter ~ (Equipment, Construction, and Materials: Specifications and Approval): Part 159 (Approval of Equipment and Materials), Part 161 (Electrical Equipment), Part 163 (Construction), and Part 164 (Materials); and 46 C.F.R. Subchapter S (Subdivision and Stability): Part 170 (Stability Requirements for All Inspected Vessels), Part 172 (Special Rules Pertaining to Bulk Cargoes), Part 173 (Special Rules Pertaining to Vessel Use), and Part 174 (Special Rules Pertaining to Specific Vessel Types). Donovan v. Texaco. Inc., 720 F.2d 825 (5th Cir. 1983) ("OSHA regulations do not apply to working conditions of seamen on vessels in navigation . . ."; Dillingham Tug & Barge Corp.. 10 O.S.H. Cas. (BNA) 1859 (1982~. But cf. In re Inspection of Norfolk Dredging Co., 785 F.2d 1526 (llth Cir. 1986) (OSHA's jurisdiction over working conditions on

OCR for page 166
218 uninspected vessels is not preempted); Donovan v. Red Star Marine Services, Inc., 739 F.2d 774 (2d Cir. 1984). i4TSAC is an advisory committee to the secretary of Transporta- tion, authorized by the Towing Safety Advisory Committee Act, Pub. L. No. 96-380, 94 Stat. 1521 (1980) (codified at 33 USCA 1231a). 75The Comprehensive Environmental Response, Compensation, and Liability Act? Pub. L. No. 95-510, 94 Stat. 2767 (1980), as amended by the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613 (1986~; the Federal Water Pollution Control Act, Pub. L. No. 92-500, 86 Stat. 816 (1972), as amended by the Clean Water Act of 1977, Pub. L. No. 95-217, 91 Stat. 1566 (1977~; the Outer Conti- nental Shelf Lands Act Amendments of 1978, Pub. L. No. 95-372, 92 Stat. 629 (1978~; the Deepwater Port Act of 1974, Pub. L. No. 93-627, 88 Stat. 2126 t1975~. 7 See Merchant Marine Act of 1920, 41 Stat. 1007 (1920) (codified at 46 USCA 688 and commonly referred to as ''the Jones Acted. 7 7 " See Tank Vessel Act of 1936, Pub. L. No. 74-765, 49 Stat. 1889 (1936) (extending manning, inspection and safety laws to encompass all vessels, including tank barges, whether self-propelled or not, which transport inflammable, explosive, or dangerous cargo). See also Moran Maritime Associates. Inc. v. Coast Guard 526 F. Supp. 335 (D.D.C. 19813g aff'd, 679 F.2d 61 (D.C. Cir. 1982). See H.R. Rep. No. 1384, 95th Cong., 2d Sess. 4, reprinted in 1978 g.S. Code Cong. & Admin. 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. If additional training is required, licenses would have to be appropriately endorsed to reflect that training. Certain tank vessels take in seawater to ballast the vessel (to deepen draft and achieve proper trim), after cargoes have been dis- charged. Prior to the advent of international marine regulation, this ballast was normally drawn into cargo tanks, where seawater mixed with cargo residues. Ballasting often took place in port, so that the vapors in off-loaded cargo tanks were displaced into the atmosphere by the incoming seawater. Mandatory segregated ballast tanks, where required, are now dedicated to ballasting; consequently, the intake of seawater dispilces no vapors, and the discharged ballast is uncontaminated. Crude oil washing (COW) systems are related to segregated bal- last tanks, and obviate the need for using seawater to clean cargo tanks. COW uses the solvent properties of oil from cargo tanks in a closed system, spraying crude oil at very high pressure to strip cling- ing cargo from tank walls and structural supports. 82An inert gas system is a system that supplies to the cargo tanks a gas or mixture of gases so deficient in oxygen content that combustion cannot take place in the tanks. The inert gas may be supplied by a tank vessel's boiler or by an inert gas generator. This gas is pumped into the cargo tanks via deck piping to displace the air in the tank that has an oxygen content sufficient to allow combustion. As the cargo is

OCR for page 166
219 pumped out during off-loading, inert gas is introduced at an equal or greaser volume rate, with excess inert gas vented to the atmosphere. MARPOL 73/78 in turn was implemented by the Act to Prevent Pollution from Ships of 1980, Pub. L. No. 96-478, 94 Stat. 2297 (1980) (codified at 33 USC 1901-1911). The Coast Guard is in the process of establishing new, stiffer requirements for certifying individuals engaged in the carriage and transfer of petroleum and other dangerous cargoes in bulk. "Qualifica- tions of the Person in Charge of Oil Transfer Operations, Tankerman Requirements,'' Docket Nos. COD 79-116 & 116a, Notice of Proposed Rule- maki8~, 45 Fed. Reg. 83,290 (December 18, 1980~. These include the following: (1) the International Convention on Safety of Life at Sea, 1974 (SOLAS); (2) the Officers' Competency Certificates Convention, 1936; (3) the International Convention for the Prevention of Pollution from Ships, 1973, and the Protocol of 1978 ("MARPOL 73/78"~; (4) the International Convention on Load Lines, 1966; (5) the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969; (6) the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Materials, 1972 (known as the London Dumping Convention); (7) the Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk (BCH Code) (adopted as amendments to MARPOL 73/78~; (8) the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk, 1983 (IBC Code) (adopted as an amendment to SOLAS); the International Code for the Construction and Equipment of Ships Carrying Liquified Ha.. in Bulk 1983 (adopted ~.~ amendment to SOLA) ._, ~--r - for example, the International Convention on Standards of Training, Certification, and Watchkeeping for Seafarers, 1978 (STCW). 87"Licensing of Maritime Personnel," Docket No. COD 81-059, Supplemental Notice of Proposed Rulemaking, 50 Fed. Reg. 43,316 (Octal 24, 1985~. 8Rapport Studieproject Dampretoursystemen, Proj. No. VROM LB 671001, Proj. No. Badger B.V.: BN-3580, 1984. Ministry of Housing, Physical Planning, and Environment, Dokter v.d. Stamstraat 2, 2260 MB Leid~cghendam, The Netherlands. At the same time, the Coast Guard and the Maritime Administra- tion were developing a proposal for a preemptive statutory treatment for vessel emissions similar to that in the CAA for aircraft emissions. 48 Fed. Reg. at 51,478. 9149 Fed. Reg. 48,185 (Dec. 11, 1984). U.S. Const., art. VI, cl. 2. 93Kelly v. Washington. 302 U.S. 1 (1937). Jones v. Rath Packing Co.. 430 U.S. U.S.~9~25 (1977). 519, 525, rein. denied, 431 >'Pacific Gas and Electric Co. v. State Energy Resources Conservation & Dev. Comm'n. 461 U.S. 190, 203-04 (1983); Ray v. Atlantic Richfield Con 435 U.S. 151, 163 (1978); Rice v. Santa Fe Elevator Corp.. 331 U.S. 218, 230 (1947). 95Florida Lime & Avocado Growers Inc. v. Paul. 373 U.S. 132, 142-43 (1963).

OCR for page 166
220 97Hines v. Davidowitz, 312 U.S. 52, 67 (1941). 98Pub. L. No. 95-217, 91 Stat. 1566 (1977), amending the Federal Water Pollution Control Act, Pub. L. No. 92-500, 86 Stat. 816 (1972) (codified at 33 USC 1321 et seq.~. Romero v. Int'1 Terminal Co., 358 U.S. 354, 357 (1959~; Just v. Chambers, 312 U.S. 383, 389-90 (1941~; Kelly v. Washington. 302 U.S. 1, 8-14 66937~. 1 U.S. Const.' art. I, 8, cl. 3. 10iGreat Atlantic & Pacific Tea Co. v. Cottrell, 424 U.S. 366, 370-~82(1976~. Philadelphia v. New Jersey, 437 U.S. 617 (1978~. Kassel v. Consolidated Freightways Corp.. 450 U.S. 662 (1981). 104See, for example, Browning-Ferris, Inc. v. Anne Arundel County, Maryland, 292 Md. 136, 438 A.2d 269 (1981). See also Norfolk Southern Corp. v. Oberly, 632 F. Supp. 1225 (D. Del. 1986), in which the court held that the congressional power to consent to otherwise impermissible state regulation of interstate commerce must be exercised expressly. 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

OCR for page 166
221 Ozone photochemical oxidants PA particulate matter ppm parts per million PSD prevention of significant deterioration PTSA Port and Tanker Safety Act of 1978 PWSA Port and Waterways Safety Act of 1972 RACT reasonably available control technology REEP Reasonable Extra Efforts Program RVP Reid Vapor Pressure SBT segregated ballast tanks SCAQMD South Coast Air Quality Management District SIP State Implementation Plan SO2 sulfur dioxide SOLAS International Convention on Safety of Life at Sea SPP Sustained Progress Program STOW International Convention on Standards of Training, Certification, and Watchkeeping for Seafarers TSAC Towing Safety Advisory Committee USC United States Code USCA United States Code Annotated VOC volatile organic compounds VRS vapor recovery systems COAST GUARD SPONSORED RESEARCH STUDIES Bjorklund, R. A. and P. R. Ryason. 1980. Detonation-Flame Arrester Devices for Gasoline Cargo Vapor Recovery System. U.S. Coast Guard Technical Report, NTIS No. AD A086 061. Washington, D.C.: U.S. Government Printing Office. Crowley, D. P. and R. P. Wilson. 1978. Experimental Study of Flame Control Devices for Cargo Venting Systems. U.S. Coast Guard Technical Report, CG-D-70-78, NTIS No. AD A063 008. Washington, D.C.: U.S. Government Printing Office. Gross, S. S. 1984. Demonstration of Vapor Control Technology for Gasoline Loading of Barges. EPA Contract No. 68-02-3657. Swanek, R. 1978. Evaluation of Liquid Cargo Tank Overpressure. U.S. Coast Guard Technical Report, CG-D-71-78, NTIS No. AD A062 941. Washington, D.C.: U.S. Government Printing Office. Wilson, R. P. and S. Attalah. 1975. Design Criteria for Flame Control Devices for Cargo Venting Systems. U.S. Coast Guard Technical Report, NTIS No. AD AO15 822. Washington, D.C.: U.S. Government Printing Office. Wilson, R. P. and D. P. Crowley. 1978. Performance of Commercially Available Flame Arresters for Butane/Air and Gasoline/Air Mixtures. U.S. Coast Guard Technical Report, CG-D-72-78, NTIS No. AD A062 948. Washington, D.C.: U.S. Government Printing Office. Wilson, R. P. and P. K. P. Raj. 1977. Vent System and Loading Criteria for Avoiding Tank Overpressurization. U. S. Coast Guard Technical Report, CG-D-59-77, NTIS No. AD A045 791. Washington, D.C.: U.S. Government Printing Office.