USCG "VIDA In-Person Listening Session", Merchant Marine Academy, Kings Point NY, May 29-30, 2019
Ballast Water Discharge Session Public (5 minute) Statement on UV Treatment and MPN (May 29, 2019)
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My name is Randall Benn. I am a former Attorney-Advisor to the USEPA Assistant Administrator for Water, President of dRB Ventures Inc and a Partner in the Earth and Water Law Group. I am speaking today as outside Counsel to Trojan Technologies. My statement will be addressing a technology that, while globally embraced, has never been fully accepted by the USCG -- low-energy ultraviolet or UV treatment of aquatic invasive species in ballast water.

Trojan is one of a number of companies that has developed low energy UV treatment technology that neutralizes aquatic invasive species in ballast water by rendering them incapable of reproduction. Such UV technologies are effective, environmentally friendly, chemical-free alternatives to systems that rely on killing invasives with heavy doses of chlorine. These types of systems have been used internationally for over a decade, are acceptable under the International Maritime Organization's Ballast Water Convention and are favored by major US shipping organizations.

To date, the USCG has yet to grant Type Approval to a low-energy UV ballast water management system. The USCG's failure to approve such systems is due to an erroneous reading of the Nonindigenous Aquatic Nuisance Prevention and Control Act (NANPCA) and the National Invasive Species Act (NISA) and its own regulations. Specifically, the USCG has interpreted its regulations to require ballast water management systems to be evaluated based on their ability to kill certain organisms, even if those organisms are sterilized before discharge. Instead of testing for the reproductive ability of organisms in treated ballast water (thereby eliminating the threat of infestation, which is the purpose of the statutes), the USCG has only approved the use of methods that test for organism death. 

In contrast, the performance of UV technologies in treating aquatic invasive species is assessed using the Most Probable Number or MPN method. MPN is a well-established quantitative method that estimates the number of viable cells in a sample.  

USCG's views on the merits of the "vital stain" method, as well as its suspicion of MPN, are rooted in the 2010 Generic Protocol for the Verification of Ballast Water Treatment Technology, which created by NSF International for the USCG, USEPA and US Naval Research Lab (NRL) under the auspices of the defunct Environmental Technology Verification project. 

Since its formal close in 2014, the ETV has been continued outside of the Federal Advisory Committee Act process as a project of the USEPA. Operating in cooperation first with NSF and since 2017 with NRL as outside its consultant, the ETV has struggled to develop and finalize a study to determine if the MPN method is equivalent to or better than the ETV Generic Protocol. For instance, the ETV's most recent attempt to develop a credible MPN "validation" report will fail because three outside labs were deemed necessary to do the work, but only a study by GSI is moving forward, leaving the issue of validation undone. Regardless of the GSI's findings, the full record shows that the ETV stains protocol has never been subjected to anything remotely as rigorous as the review that MPN has undergone and is undergoing. In short, the ETV review effort on MPN has failed, and the USCG cannot in good conscience rely on its findings to deny the approval of the MPN method or green technologies that rely on assessment by MPN. 
Going forward, it is critical that USCG regulatory decisions are based on public, peer-reviewed data, rather than data developed behind closed doors. Further reliance on processes like the ETV, which purports to make scientific judgements based on findings by selected third parties that were not subjected to public notice and comment, is not defensible.
Because of the USCG's errant regulatory history with regard to UV systems and MPN, Congress chose to provide clear legislative direction in VIDA. 

Among other things, VIDA amends the NANPCA, NISA and adds language to the Clean Water Act clarifying, contrary to the USCG's prior interpretations of those laws, that ballast water treatment systems that operate by rendering organisms unable to reproduce are immediately approvable by the USCG for use in U.S. waters. 

Specifically, VIDA's language requires the USCG, in coordination with the EPA, to publish a Policy Letter, "based on the best available science" describing "type-approval methods and protocols for ballast water management systems that render nonviable organisms in ballast water" and may be used "to measure the concentration of organisms in ballast water that are capable of reproduction".  In developing the Policy Letter, which is due in draft next week and, following public comment, must be finalized by December 4 of this year, VIDA further specifies that the USCG "shall take into consideration a testing method that uses organism grow-out and most probable number statistical analysis" to measure the concentration of organisms in the 10 to 50 micrometer size class that are capable of reproduction.

VIDA also requires the USCG to interpret its regulations such that living organisms with the potential to infest U.S. waters do not include organisms that are incapable of reproduction. 

Over the years, a vast amount of scientific information has been provided to the USCG concerning MPN. More recently, significant new peer-reviewed data that supports the validity of MPN, data that has been reviewed and concurred on by the USCG's own Independent Laboratories, has been submitted to the USCG and EPA. This data has been routinely overlooked or dismissed by the USCG in previous regulatory decisions. Under the clear terms of VIDA, the USCG may no longer do so. Rather, it must move forward expeditiously with the approval of technologies that meet the clear new legal definitions and standards.

Thank you for the opportunity to comment.
