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Maritime Environmental Law Update (October 2015 edition): EPA Directed to Revise Limits under Ballast Permit

October 7, 2015

 

This alert provides an update on significant developments in regard to international marine vessel effluent discharges, maritime enforcement cases, and related issues. Our prior update was issued in July 2015 and can be found here.

Federal Court Remands Ballast Vessel General Permit

On a challenge by citizens groups, a Second Circuit federal court panel has ruled that the U.S. Environmental Protection Agency (“EPA”) should have adopted more stringent technology-based effluent limits for ballast water discharges under its 2013 Vessel General Permit program (“VGP”) and has directed the EPA to revise and reissue its VGP. The EPA had adopted the same effluent limits that had earlier been adopted by the International Maritime Organization (“IMO”). The court found this action to be arbitrary and capricious because the EPA failed to adequately explain why standards higher than the IMO standard should not be set given available technology.

The court also ruled that the EPA acted arbitrarily and capriciously by (i) exempting those Great Lakes cargo vessels built before 2009 from technology-based effluent limits; (ii) failing to consider onshore treatment for ballast water discharges; (iii) establishing vague narrative standards for water-quality-based effluent limits for ballast discharges; and (iv) requiring imprecise monitoring and reporting for water-quality-based effluent limits.

The court remanded the 2013 vessel general permit to the EPA so that it can address those provisions rejected by the court. The court said the 2013 VGP will remain in place until the agency writes a new permit. No timetable was set by the court or provided by the EPA for issuance of a new VGP. As noted in our July Alert, many operators have sought to defer compliance with the terms of the VGP until an IMO-based standard is issued, with some applying to the Coast Guard for an extension under the terms of the EPA enforcement guidance issued by Assistant EPA Administrator Cynthia Giles on December 27, 2013. Operators in certain regions may also be subject to state ballast requirements, such as the Minnesota Pollution Control Agency VGP for Lake Superior.

Enforcement Actions

Russian Sailor Sentenced For Dumping Hydraulic Oil

A New Jersey federal court has sentenced a Russian citizen to three months in prison for failing to report a release of hydraulic oil into the ocean. Valerii Georgiev, the chief mate of ocean cargo vessel M/V Murcia Carrier, had ordered the dumping of the oil. He later pled guilty to one count of failing to maintain an accurate oil record book in violation of the Act to Prevent Pollution from Ships. The April 2014 dumping occurred in international waters off the coast of Florida while the vessel traveled from Costa Rica to New Jersey, according to court records. The case also resulted in a guilty plea from vessel operator Norbulk Shipping UK Ltd., which admitted to failing to maintain an accurate oil record book and providing false statements with respect to the vessel’s garbage record book. Norbulk was fined $750,000 and placed on probation for three years.

Cold Ironing Employed in Vancouver

Starting in 2017, shore-based electrical power for container vessels will be available in the port of Vancouver. The effort is intended to reduce the number of ships using on-board power, thereby decreasing greenhouse gas emissions, improving air quality, and reducing noise, according to government sources.

The C$12 million (US$9.23 million) in funding will allow for electrical upgrades by provincial power utility BC Hydro at Global Container Terminals’ Deltaport terminals and DP World Vancouver’s Centerm terminal. Transport Canada’s Shore Power Technology for Ports Program will also be providing funding for the project.

This effort will supplement the 2009 electrification of Vancouver cruise ship docks.

Opening of Arctic Sea Routes Brings New Challenges

Consideration of newly available polar sea routes continues to raise new issues involving infrastructure, territoriality, and environmental protection.

As noted in our July 2015 Alert , the IMO in November 2014 adopted the International Code for Ships Operating in Polar Waters (Polar Code) and related amendments to the International Convention for the Safety of Life at Sea, setting environmental requirements effective in January 2017 and also establishing mandatory protections to be afforded to people aboard ships in Arctic and Antarctic waters.

Notwithstanding efforts to impose international regimes on artic vessels, territorial issues are likely to remain, since many routes could pass through territorial waters where the laws of individual countries could take precedence. Russia, Denmark, and Canada have all laid claim to Arctic territory by attempting to prove that their land masses extend to the North Pole.

Apart from melting sea ice, warmer temperatures are expected to impact inland areas as well, with the loss of permafrost making land travel more difficult. Rather than rely on ice roads, transportation planners will have to give greater consideration to paved roads. With the permafrost level decreasing, infrastructure such as airport runways may also be impacted. Loss of permafrost is also expected to decrease river levels, as more precipitation will soak into the ground rather than run off into streams and rivers.

There will likely be a need for enhanced marine infrastructure to support the offshore oil and gas industry, search and rescue, and oil spill response.


This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Eric Rothenberg, an O'Melveny partner licensed to practice law in Missouri and New York, and Bob Nicksin, an O'Melveny counsel licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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