• An Overview of the Applicability of Environmental Laws to the Passenger Vessel Industry
  • September 30, 2003 | Author: Jeanne M. Grasso
  • Law Firm: Blank Rome LLP - Washington Office
  • The government's commitment to combat pollution should serve as a wake up call for those in the maritime industry to get their environmental houses in order. Even as the Bush Administration rolls back regulatory requirements to ease the compliance burden on many industries, the environmental enforcement effort has not waned. This article will briefly examine the applicability of various environmental laws to the passenger vessel industry and make recommendations for avoiding enforcement actions.

    Environmental laws, including those at the international, federal, state, and local levels, generally apply to passenger vessels, with some variations based on route, tonnage, type of vessel, and length of vessel. For example, Annex I of the International Convention for the Prevention of Pollution from Ships ("MARPOL"), implemented in the United States by the Act to Prevent Pollution from Ships ("APPS"), applies to vessels over 400 gross tons on international voyages. MARPOL and APPS require that, among other things, vessel operators log discharges, transfers, and the disposal of oily water in an Oil Record Book and limit operational discharges of machinery space oily mixtures by imposing stringent equipment and discharge requirements. In short, if a vessel operator discharges oily water, it must go through an oil-water separator with an oil content meter and the oil in the effluent must be less than 15 parts per million ("ppm"). Additional restrictions and equipment requirements may apply based on the vessel's tonnage and route. MARPOL also requires vessel operators to prepare and carry onboard Shipboard Oil Pollution Emergency Plans.

    While MARPOL is not applicable to the domestic fleet, the Coast Guard has the authority to impose similar requirements on smaller U.S.-flag vessels and currently requires: (1) all non-oceangoing vessels to have the capacity to retain oily water on board and equipment to discharge it ashore; (2) oceangoing vessels less than 400 gross tons to meet the same requirements, as well as have an automatic stop on the discharge equipment; (3) oceangoing vessels between 400 and 10,000 gross tons to have adequate storage capacity, as well as a 15 ppm oil-water separator; and (4) oceangoing vessels over 10,000 gross tons to have a 15 ppm oil-water separator and a bilge alarm with an automatic stop. All vessels over 26 feet must have a placard stating "Discharge of Oil is Prohibited."

    The Clean Water Act ("CWA"), the Oil Pollution Act of 1990 ("OPA 90"), and the Comprehensive Environmental Response, Compensation & Liability Act ("CERCLA") apply to U.S.-flag and foreign-flag vessels operating in U.S. waters. OPA 90's and CERCLA's requirements, however, vary based on the tonnage and type of vessel, while the CWA applies to all vessels. For example, under OPA 90 and CERCLA, all vessels are required to meet the reporting and spill response requirements, but only tank vessels and other vessels over 300 gross tons must demonstrate financial responsibility for potential cleanup liability, and only tank vessels must develop response plans.

    The CWA prohibits the discharge of "pollutants" from "point sources" (including vessels) inside the three-mile territorial sea, unless the point source has a National Pollution Discharge Elimination System ("NPDES") permit. "Pollutants" is a broadly defined term, including solid waste, incinerator residue, garbage, chemical waste, and almost any other type of waste or product carried aboard a vessel. There are several exceptions, however, to the NPDES permitting requirement, including (1) discharges "incidental to normal operations" (though this term has not been defined or interpreted by the Coast Guard or EPA); (2) discharges of ballast and gray water; and (3) discharges of treated sewage through a certified and operable marine sanitation device ("MSD"). Many MSDs, however, do not meet EPA's treatment standards even though they are certified and have been maintained in accordance with the manufacturer's recommendations. In such situations, the Coast Guard has taken the position that an MSD is not "operable" and will issue fines, though it will consider penalty mitigation if the MSD in question is certified and has been properly maintained.

    The CWA also prohibits the discharge of a "harmful quantity" of oil or a hazardous substance out to 200 miles. Based on Coast Guard and EPA interpretations, a harmful quantity of oil is a "sheen" and a harmful quantity of a hazardous substance is a "reportable quantity," which varies by substance. Discharges of harmful quantities, unless from a "properly functioning marine engine" (another term for which there is little Coast Guard or EPA guidance), must be reported immediately to the National Response Center. This means that if oil is discharged from a vessel, irrespective of quantity, and creates a sheen, it must be reported. This includes sheens created by fueling operations, vessel maintenance, and even from deck washing.

    In addition to the statutes noted above, the Refuse Act of 1899 makes it illegal to deposit "refuse" (which includes almost anything and everything) inside three miles. And, according to EPA interpretations, vessel operators are required to comply with the Resource Conservation and Recovery Act once hazardous waste is offloaded from the vessel, which includes packaging, labeling, manifesting, and record keeping requirements.

    In addition to federal requirements, states generally also may impose requirements on vessels that are more stringent than federal requirements, and many do so, especially on the west coast. For example, many states regulate discharges of ballast water much more stringently than the federal government, impose higher levels of financial responsibility than the federal government, impose additional reporting requirements, and impose response planning requirements on non-tank vessels, unlike OPA 90.

    Because of the plethora of environmental laws applicable to passenger vessels (only a few of which are discussed here) and the increased civil and criminal enforcement efforts at the federal and state levels targeted at the maritime industry, vessel owners and operators must understand which requirements apply to them.

    Owners and operators can get their environmental houses in order by: (1) assigning an employee "ownership" of environmental compliance and ensuring that that employee has the proper training; (2) establishing a formal, written environmental compliance program; (3) incorporating environmental training into other training programs to help ensure that all employees understand, at a minimum, the basic environmental requirements; (4) conducting periodic environmental audits of the company's compliance program (using a checklist) and promptly correcting deficiencies identified; (5) keeping good records of environmental compliance efforts, including training, audits, and corrective actions; and (6) training employees on how to deal with an inspection or an investigation, including training employees with respect to their rights and responsibilities.

    Taking these steps will help minimize the risk of a criminal or civil enforcement action. While these actions may seem costly, owners and operators should remember that prevention is much more economical than responding to an incident and its aftermath.