Recent Developments in Maritime Environmental Law Update (February 2012 Edition)

February 10, 2012


The first month of 2012 brought several new developments in the area of maritime environmental law, regulation, compliance and enforcement.

EPA Answers Questions on Vessel Permits

The U.S. Environmental Protection Agency held two online question-and-answer sessions on Jan. 31 and Feb. 7, 2012 to answer questions and receive public comment on its proposed National Pollutant Discharge Elimination System permits for vessel discharges under the Clean Water Act. EPA has proposed a five-year NPDES vessel general permit that meets the requirements set forth by the International Maritime Organization (“IMO”). The proposed standards include technology-based effluent limits aimed at reducing both invasive species and bacteria in ballast water. Two general NPDES permits are proposed: one for vessels 79 feet in length or longer, the other for vessels smaller than 79 feet.

Significantly during the January 19th session, the EPA observed that, while states will still be allowed to set tougher standards in their permits for ballast water discharges than those required under the federal permit, the technology to meet stricter state limits may not be available. California, for example, has adopted ballast water discharge standards that are many times more stringent than the IMO standards that EPA has proposed for adoption, but there are no known technologies that can enable operators to meet the limits. States can also attach conditions that expand the scope of the EPA general vessel permit.

Questions raised in the Feb. 7th session focused largely on small craft, and regulatory differences between recreational boats and those engaged in work-related activities. With regard to larger vessels, EPA reviewed the new requirements that prohibit discharges of graywater within three nautical miles of shore unless the discharges meet the effluent standards.

EPA intends to take public comments on the permit until February 21, 2012.

Worldwide, the International Maritime Organization standards on which the EPA standards are based, will become effective 12 months after the date on which not less than 30 member states (the combined merchant fleets of which constitute not less than 35% of the gross tonnage of the world’s merchant shipping) have ratified the standards. It is expected that tonnage requirements will be met in 2012 (the requirement for the number of states has already been met).

Recent Fines and Penalties

Korean Company Fined $1.15 (US) Million for Release of Oily Bilge Waste

A U.S. District Court in Hawaii has ordered Keoje Marine to pay a $1.15 million criminal penalty and implement a compliance program after the company pleaded guilty to violations of two U.S. laws, the Clean Water Act and the Act to Prevent Pollution From Ships.

Keoje Marine Co. pleaded guilty to three felony counts following release of oily bilge waste into waters off Hawaii by the M/T Keoje Tiger, an oil tanker that carried fuel and supplies to fishing vessels in the South Pacific.

According to court documents, engineers aboard ship bypassed the oil and water separator and dumped oil over a seven month period, and failed to record the discharges in the ship’s oil record book. Keoje Marine then attempted to conceal the violations by falsifying the vessel’s oil record book.

Ship Owner/Operator Fined $2.4M for Illegal Dumping

Two shipping companies have been ordered to pay a total of $2.4 million after pleading guilty to dumping waste oil and plastic garbage into the ocean.

Efploia Shipping, which operates the ship M/V Aquarosa, and owner Aquarosa Shipping, separately pled guilty to obstruction of justice, making material false statements, knowingly failing to maintain an accurate oil record book and knowingly failing to maintain an accurate garbage record book. Each was ordered to pay $1.2 million and serve three years of probation.

According to court documents, a crew member on the M/V Aquarosa told U.S. Coast Guard officials during an inspection that he had been instructed by senior engineers and crew members to illegally discharge waste oil overboard. He also said plastic bags filled with oily rags had been deliberately tossed overboard, according to court records, and provided the Coast Guard with evidence of illegal activities, including more than 300 photographs stored on his cell phone. Last December, the chief engineer of the ship pled guilty to obstruction of justice charges and was sentenced to three months in prison.

IMO and EU Consider Market-Based Measures to Reduce Shipping Greenhouse Emissions

The IMO Marine Environment Protection Committee (“MEPC”) will once again take up the question of greenhouse gas reductions from the shipping sector at meetings scheduled for later this month and again in October, 2012.

At issue will be development of Market-Based Measures (“MBM”) as a possible mechanism to reduce greenhouse gas (“GHG”) emissions from international shipping. Representatives will also discuss MBM proposals in relation to the relevant conventions, including the U.N. Framework Convention on Climate Change and its Kyoto Protocol, World Trade Organization Rules and other international laws, including the United Nations Convention on the Law of the Sea. Impacts of the MBMs on international trade, the maritime economic sector of developing and least-developed countries, and the impacts on small-island developing states are to be examined. A key issue is whether wealthier nations should pay more than developing countries to reduce shipping emissions. The IMO plans to present conclusions reached at the meetings at the next U.N. climate summit, to be held in Qatar.

The European Union is separately considering proposals on how best to regulate greenhouse gas emissions from international shipping. The proposals, which the Commission will publish before the end of 2012, are likely to mirror international aviation limits in the European Union’s Emissions Trading System, under which airlines must surrender carbon allowances for all flights into, out of, or within the European Union. A similar MBM for shipping could apply to emissions of ships as of their last port of call and before calling on a European port and then to the next port of call after departing the European port.

Other measures up for consideration include a tax on fuel or emissions, mandatory emissions caps for ships, or establishment of a compensation fund for environmental damage from greenhouse gas emissions, into which shipping companies would pay.

Canada Providing Funds for Shore Power Facilities at Ports

The Canadian government will provide $27.2 million to fund installation of shore power facilities, allowing ships to connect to an electrical power supply rather than running ship-board engines while docked. The move is expected to reduce emissions of air pollutants and greenhouse gases. Initial installations will provide shore power for cruise ships in Vancouver and container ships in Prince Rupert, British Columbia. Funding will be allocated to port authorities and private operators of ports and terminals, including foreign-owned entities, based on responses to a call for proposals to be issued this spring.