Ship Environmental Regulations
Many maritime nations had discussions regarding potential ship pollution laws as early as the 1920s. But, oil pollution-related international environmental regulations finally reached during 1970s. In 1983, MARPOL (International Convention for the Prevention of Pollution from Ships) was adopted by the International Maritime Organization (IMO) as an international convention governing pollution from ship discharges. MARPOL entered into force on 2 October 1983.
In shipping history, there were many unfortunate marine pollution incidents and oil spills that triggered many environmental laws like MARPOL (International Convention for the Prevention of Pollution from Ships). Many other regulations have been similarly instigated by terrible maritime accidents or incidents. In recent years, global awareness and concern with pollution issues have been increased.
During the end of 19th century, federal attempts to deal with water pollution from ships began in USA. New York Harbor Act of 1886 and the Rivers and Harbors Act of 1899 (the Refuse Act) enacted but did not reach their modern form until the enactment of the Water Quality Improvement Act of 1970, the Federal Water Pollution Control Act Amendments of 1972 and 1977, the Ocean Dumping Act (enacted in 1972), the Act to Prevent Pollution from Ships (enacted in 1980), the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), and the Oil Pollution Act of 1990 (OPA 90).
In modern shipping, virtually every discharge and emission into the environment from ships during commercial operation is regulated either by both international conventions or domestic laws. More stringent requirements are introduced on such emissions and discharges. Regulation of discharges from ships remains an important legal issue for all ship owners and shipping industry.
Generally, every ship discharge and emission are regulated by law, including discharges of oil, oily water, sewage and grey water, deck runoffs, air emissions, ballast water discharges, and dumping overboard of garbage. MARPOL by Annex indicates what is regulated:
- Annex I – Oil
- Annex II – Noxious Liquid Substances Carried in Bulk
- Annex III – Harmful Substances Carried in Packaged Form
- Annex IV – Sewage
- Annex V – Garbage
- Annex VI – Air Pollution
In United States, Congress has enacted a number of environmental laws affecting ships: The most significant environmental laws:
- Clean Air Act of 1970
- Federal Water Pollution Control Act (the Clean Water Act – CWA) 1948, 1972 and 1977
- Ocean Dumping Act of 1972
- Act to Prevent Pollution from Ships (APPS) 1980 and implementing Annex I of MARPOL
- Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA)
- Oil Pollution Act of 1990 (OPA 90)
In the old days, Oil Pollution Regulations in United States and law governing liability for maritime oil spills came from the judge-made general maritime law of torts, based upon theories of negligence, nuisance, trespass and similar theories. In modern days, the enactment of major oil pollution legislation by the U.S. Congress has taken over the field. Oil Pollution Act of 1990 (OPA 90) has been based on domestic legislative process and also on international conventions like MARPOL (International Convention for the Prevention of Pollution from Ships). Maritime environmental law is inherently federal but much of the federal legislation has also reserved a role for state law as long as the state law does not expressly conflict with provisions of federal law.
Oil Pollution Regulations from ships is based on international, federal, and state laws. Oil Pollution Act of 1990 (OPA 90) was triggered by MT Exxon Valdez harmful incident in Alaska. United States had a long period of congressional efforts to modernize and rationalize disparate federal oil spill statutes including the Clean Water Act, the Deepwater Port Act of 1974, the Trans-Alaska Pipeline Authorization Act of 1973 (TAPA) and the Outer Continental Shelf Lands Act, as amended in 1978 (OCSLA). The Clean Water Act prohibits the discharge of oil in a harmful quantity into all waters within 3 nautical miles of the United States coast or in any quantity which may affect United States natural resources within 200 nautical miles of the coast. United States Environmental Protection Agency has defined the term harmful quantity of oil to be that amount of oil:
- violates applicable water quality standards
- cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines or cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines
Sheen Test is the most commonly used in practice. If a ship discharge causes a rainbow type sheen on the surface of the sea or river water, then the discharge will be considered to be of a harmful quantity.
Oil Pollution Act of 1990 (OPA 90) was enacted to address the shortcomings of:
- Clean Water Act
- Trans-Alaska Pipeline Authorization Act of 1973 (TAPA)
- Outer Continental Shelf Lands Act, as amended in 1978 (OCSLA)
Oil Pollution Act of 1990 (OPA 90) was enacted with the intention of providing a comprehensive approach to the law of oil spills and the prevention of oil spills.
Major areas covered in Oil Pollution Act of 1990 (OPA 90):
- Title I Oil Pollution Liability and Compensation One of the more significant parts of the statute, Title I sets out the provisions governing liability and financial responsibility for oil spills, defenses to liability, limitations on liability, and recovery of expenses from oil spills. It also addresses the use of the Oil Spill Liability Trust Fund, financial responsibility, and indemnifications agreements, among other issues.
- Title II Conforming Amendments The conforming amendments are of interest only to the clerically minded; it updates existing statutes in response to the OPA 90 legislation.
- Title III International Oil Pollution Prevention and Removal. Title III concerns the management of joint United States and Canada oil spill issues.
- Title IV Prevention and Removal. Title IV is another significant part of the statute. Subtitle A concerns prevention, and includes provisions governing ship manning, mariner licensing, ship hull safety measures, communications, and tank monitoring. Subtitle B addresses the removal of oil from the water, and Subtitle C sets out the penalties for spills and violations of the statute.
- Title V Prince William Sound Provisions Just as it sounds. Title V addresses issues unique to Alaska’s Prince William Sound, such as tanker and terminal oversight, the ship traffic system. and equipment and personnel requirements applicable to that area.
- Title VI Title VI includes various savings provisions to maintain the validity of prior laws and regulations and a section concerning the appropriations that support the Act.
- Title VII Oil Pollution Research and Development Program. As the caption states, Title VII sets up a research and development program.
- Title VIII Trans-Alaska Pipeline System. Title VIII addresses the trans-Alaska pipeline.
- Title IX Amendments to the Oil Spill Liability Trust Fund, etc. Title IX amended the law pertaining to the Oil Spill Liability Trust Fund, which provides a source of funds to pay for, or reimburse others who paid for, clean-up and remediation of oil spills.
Relationship between Oil Pollution Act of 1990 (OPA 90) and state laws: Oil Pollution Act of 1990 (OPA 90) expressly reserves to the states the right to enact their own more stringent oil pollution regulations. Asa result, although providing a more comprehensive solution, Oil Pollution Act of 1990 (OPA 90) did not entirely end variation among the states with regard to pollution prevention or oil spill control measures.
Generally, ship owners seek national and international uniformity with respect to environmental and safety standards. This state-by-state regulation has been opposed by many ship owners. Many federal laws which have not been displaced by Oil Pollution Act of 1990 (OPA 90) are potentially applicable to oil spills:
- the Act to Prevent Pollution from Ships
- the Clean Water Act
- the National Marine Sanctuaries Act
- the Migratory Bird Act
- the Marine Mammal Protection Act
- the Refuse Act
The Refuse Act makes it a crime to discharge refuse matter or any material of any kind into the navigable waters of the United States. The Clean Water Act also prohibits the discharge of any pollutant into United States waters without a permit. Pollutant includes:
- chemical waste
- solid waste
- vegetable or animal-based oil
- other hazardous substances
Oil Pollution Act of 1990 (OPA 90) imposes strict liability on those parties who are directly responsible for oil spills. If a ship has more than one responsible party, Oil Pollution Act of 1990 (OPA 90) imposes liability on them on a joint and several responsible. In other words, each responsible party is individually responsible for the whole of the losses incurred.
Responsible parties may allocate the liability among themselves based upon their relative fault or responsibility, through the contribution or indemnification process. In some cases, Oil Pollution Act of 1990 (OPA 90) limits liability to statutory amounts. Nevertheless, in practice Oil Pollution Act of 1990 (OPA 90) imposes unlimited liability.
According to Oil Pollution Act of 1990 (OPA 90), responsible party is any person owning, operating, or demise chartering the ship. Under Oil Pollution Act of 1990 (OPA 90)
- the owner of the cargo (shipper)
- any time charterer (assuming the time charterer is not acting, as a matter of fact or contract, as the ship operator)
are not responsible party. But, some state laws like California, do make the cargo owner a responsible party for purposes of state environmental laws.
Ship owner is still as a responsible party when a ship is demise-chartered to a third party. Since both ship owner and a demise charterer are responsible parties, each is jointly and severally liable for Oil Pollution Act of 1990 (OPA 90) liabilities. Ship owners who cede control of a ship to a demise charterer usually protect themselves via receipt of an indemnity from the demise charterer, requiring in the demise charter that the charterer maintain sufficient spill insurance and purchasing owner’s interest coverage under that insurance.
For Oil Pollution Act of 1990 (OPA 90) liabilities, ship lease lender and/or lease owner of ship under a lease-finance arrangement is not a responsible party. As long as ship lease lender and/or lease owner of ship acts only as the lender and does not engage in:
- any operation of ship
- decision-making control over the environmental compliance related to the ship
- undertakes responsibility for oil handling or disposal practices
- exercises operational control similar to that of a ship manager
If a ship lease lender and/or lease owner forecloses on a ship, they must be careful to delegate the management and operation of the ship to a third-party contractor or otherwise ensure that it stays out of the management of the ship in order to not to become a responsible party.
Liability under Oil Pollution Act of 1990 (OPA 90) for removal costs and for damages is strict liability, meaning that it is imposed without regard to negligence or fault. Removal costs are the actual costs incurred by the United States Government, a state government, an Indian tribe or any person acting consistent with the National Contingency Plan. Damages include:
- natural resource damages
- damages to property
- damages for loss of subsistence use of natural resources (example: fishing ground)
- lost government revenues
- lost commercial profits
- damages for the net costs of additional public services needed due to the spill
Oil Pollution Act of 1990 (OPA 90) sets out a statutory limitation of liability, based on the type and size of the ship involved:
- For Tankers with double hulls the greater of $1,900 per gross ton
- For a ship greater than 3,000 gross tons, $16,000,000
- For a ship of 3,000 gross tons or less, $4,000,000
- Other Ships: the greater of $950 per gross ton, or $800,000.
Potential responsible parties, the statutory limitations of liability set out in Oil Pollution Act of 1990 (OPA 90) are subject to a number of potential exceptions:
- Acts of the responsible party: The statutory limits do not apply if the oil spill incident was caused by: gross negligence; willful misconduct; or a violation of an applicable federal safety, construction, or operating regulation committed by: the responsible party; the responsible party’s agent; an employee of the responsible party; or a person acting pursuant to a contractual relationship with the responsible party.
- Failures to act by the responsible party: The statutory limitations of liability also do not apply lithe responsible party fails or refuses to: report the oil spill incident after the responsible party knows, or has reason to know about it; provide all reasonable cooperation and assistance requested by a responsible official in connection with removal activities; or comply with an order issued under the Federal Water Pollution Control Act or the Intervention on the High Seas Act.
- Outer Continental Shelf ship: Regardless of any lack of fault, any removal costs incurred by the United States Government or any state or local official or agency in connection with a discharge from an OCS facility, or from a ship carrying oil as cargo from an OCS facility, shall be borne by the owner or operator of the facility or vessel.
- Certain tank ships: The statutory limits do not apply to spills from tank ships that are:
- carrying oil cargo comprised of animal fat or vegetable oil (the “Crisco” exclusion)
- oil spill response ships. As a practical matter, a large percentage of oil spills result from some violation of federal safety or operating/navigation regulations, committed by employees or agents of the ship owner or operator. Responsible parties are therefore routinely exposed to liability for oil spills beyond the OPA 90 statutory limitations.
Despite the Oil Pollution Act of 1990 (OPA 90) statutory limitations, many states have enacted laws permitting unlimited recoveries for cleanup costs and damages incurred by third parties. Furthermore, other federal laws may apply to oil spills, and such statutes typically do not include limitations on liability. Oil Pollution Act of 1990 (OPA 90) permits recovery for natural resource damages (wildlife, reefs, and ecosystems) without limit. A responsible party may be exposed to punitive damages for an oil spill. Oil Pollution Act of 1990 (OPA 90) and other statutes prescribe a scheme of compensatory damages, the United States Supreme Court has held that those statutes do not preempt the possibility of punitive damages under the general maritime law.
The Clean Water Act include a savings clause that preserve remedies otherwise available under other law such as the general maritime law. Punitive damages may be available where the spill was caused by reckless or willful and wanton misconduct on the part of the responsible party. Whether a corporate responsible party can be exposed to punitive damages for the misconduct of an employee is somewhat of an open question. United States Circuit Courts of Appeal are split on the issue, the more common approach appears to require some showing that the corporate owner had some direct fault, by either authorizing or ratifying the acts of misconduct by the managerial employee.
The Shipowner’s Limitation of Liability Act of 1851 offers ship owners (also bareboat charterers) the possibility of exoneration or limitation of liability from maritime claims and also provides a valuable mechanism to force all potential claims from a maritime incident to be brought into a single forum for adjudication before a judge acting without a jury. Oil Pollution Act of 1990 (OPA 90) expressly supersedes The Shipowner’s Limitation of Liability Act of 1851 with regard to claims for damages resulting from oil spills. However, the limitation may still have a role to play with respect to non-pollution claims from the incident at issue.
Responsible party may have defenses to liability under the Act, but those defenses are limited. The potential defenses include proof that the oil spill and resulting damages were caused by:
- an act of God (hurricane or tornado)
- an act of war
- an act or omission of a third party (other than an employee, agent, or contractual counterparty) but only if the responsible party exercised due care, and took precautions against foreseeable acts or omissions of any such third party and the foreseeable consequences of such acts or omissions
- any combination of the above
Furthermore, a responsible party is not liable to a particular claimant, to the extent that an incident may have been caused by the gross negligence or willful misconduct of that claimant.
Ship owners or operators must be able to show financial responsibility to pay potential Oil Pollution Act of 1990 (OPA 90) costs and damages. Oil Pollution Act of 1990 (OPA 90) contains financial responsibility requirements whereby ship owner, operator or guarantor must be able to establish and maintain evidence of the financial ability to pay the statutory cost and damage amounts contained in Oil Pollution Act of 1990 (OPA 90). In order to establish and maintain evidence of the financial ability, ship owner or operator can do so with proof of insurance, surety, self insurance, financial guarantee or other evidence. United States Coast Guard issue Certificates of Financial Responsibility (COFRs) as evidence of financial responsibility.
In United States, criminal sanctions may apply to oil spills. Federal statutes like:
- the Migratory Bird Treaty Act
- the Marine Mammal Protection Act
- the Ports and Waterways Act
- the Refuse Act
and many other state statutes, may impose criminal penalties for oil spills. Here above statutes do not require a showing that the oil spill was intentional, only that it happened. Such prosecutions tend to be reserved for situations involving either significant fault or significant harm.
Responsible party is responsible in the first instance to undertake actions to remove the spilled oil and to respond to the oil spill. Oil Pollution Act of 1990 (OPA 90) provides that the federal government is responsible for coordinating a spill response through an On Scene Spill Coordinator. Federal government provides penalties for people and companies who do not comply with the orders of such a On Scene Spill Coordinator. Oil Pollution Act of 1990 (OPA 90) provides for an Oil Spill Liability Trust Fund to fund government removal costs, natural resource damages, and for oil spill victims. Oil Spill Liability Trust Fund is administered by the National Pollution Funds Center of the Coast Guard and is funded from an oil tax as well as cost recovery from responsible parties and civil penalties collected from responsible parties. Oil Spill Liability Trust Fund pays claims where the responsible party is either unable to do so or refuses to do so and then seeks reimbursement from the responsible party and its guarantor.
Oily Water Discharges in United States:
Ship owners and operators should take note of the high incidence of violations by ships of the laws against discharges of oil and oily water overboard through operational discharges. During operation ships collect water mixed with oil in the bottom spaces of their hulls in the bilge spaces. Bilge water and oily water must be discharged properly from ships. Ships either pump properly entire mixed water ashore for disposal or pump mixed water through an oily water separator which separates the oil, which remains on board, from the water which can be pumped overboard.
United States Department of Justice routinely prosecutes and levies large fines on ship owners and operators for illegal discharges and related violations of record-keeping requirements and obstruction of justice. Violations tend to occur when ship crews ignore or evade company policies and the law and discharge oil or water mixed with oil without separating the water from the oil in an oily water separator. Usually, ship owners and operators arrange a pipe for by passing oily water separator and pump directly to ocean which is called Magic Pipe.
In United States, reasons of continuing oily water discharge violations:
- Slow progress of changing the working culture of many seafarers
- Commercial pressures to discharge accumulated oily wastes without delay
- Discharging wastes properly through on board equipment may require more frequent cleaning and maintenance of the equipment and attention to managing waste streams.
- Some seafarers continue to believe that they can avoid that work by outwitting company auditors and port state control officials
When crew members are illegally discharge oily water, their misconduct can cause their companies to suffer criminal fines of many millions of dollars. Ship owners and operators loss commercial opportunities due to unfortunates mistakes. Furthermore, a seafarer convicted of pollution misconduct can face separation from home for up to a year during the criminal investigation. If a seafarer is convicted, he might loss of professional license, employment and might be in jail for years.
In United States, detection of misconduct increasing exponentially, as United States prosecutors offer whistleblower rewards to crew members. Seafarers willing to report their officers or fellow crew members who engage in environmental misconduct, are rewarded.
Oily water discharge criminal prosecution for a MARPOL related offense can, in many ways, be more harmful to a company than a major ship collision. A major collision may put a ship out of service, most of those losses are usually compensable through insurance and will not threaten the commercial standing of the company. But, oily water discharge criminal investigation, can jeopardize existence of the company.
In United States, main sources of law governing ballast water discharges from ships:
- the Clean Water Act
- the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990
- the National Invasive Species Act of 1996 (NISA)
In United States, many states have also enacted ballast water requirements. Voluntary International Maritime Organization (IMO) ballast water guidelines were adopted in 1997 and have been replaced with the 2004 International Convention for the Control and Management of Ships’ Ballast Water and Sediments, generally known as the Ballast Water Management Convention. The Ballast Water Management Convention has not yet been ratified but is being followed by a number of countries. United States also has been following The Ballast Water Management Convention.
Ships carry water as ballast to keep stability in compensation for the discharge of cargo or bunkers Ballast water provide stability in heavy weather conditions. Usually, ships take ballast water on board following their cargo discharges. Ships carry the ballast water to the next load port, where the ballast water is then discharged as cargo is brought on board. Ballast water cause the migration of unwanted and harmful aquatic organisms from one ecosystem to another. United States National Oceanic and Atmospheric Administration estimated that more than 21 billion gallons of ballast water are discharged into United States waters from international ports every year. Ships discharge ballast water carry aquatic organisms into new habitats. Invasive aquatic organisms include zebra mussel, aquatic weeds, green crab, bacteria, microbes, eggs and larvae of marine species. For example, zebra mussels spread into the Great Lakes and other waterways from the Black Sea.
The Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 directed the United States Coast Guard to establish a mandatory ballast water management program for ships entering the Great Lakes and the Hudson River. As amended by the National Invasive Species Act of 1996. The Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 required the Coast Guard to establish a nationwide ballast water management program with high seas ballast exchange and reporting to the Coast Guard of ballast water management practices. High seas ballast exchange involves a ship pumping water off the ship and replacing it with sea water while still far offshore on the high seas, for the purpose of flushing the ballast water carrying unwanted invasive species into the high seas and replacing it with sea water before the ship reaches its destination. High seas ballast water exchange had delays and risks.
On September 2004, United States Coast Guard converted voluntary program into mandatory program. High seas ballast water exchange is not always mandatory under the National Invasive Species Act of 1996. The National Invasive Species Act of 1996 contains exemptions for safety and other reasons that would permit a ship to not have to undertake high seas ballast water exchange under limited circumstances. Following adoption of the mandatory high seas ballast exchange requirement, federal courts required the Environmental Protection Agency to do more to prevent the spread of harmful organisms. United States Coast Guard also responded by undertaking to promulgate a rule to tighten ballast water requirements.
United States Coast Guard took note of the National Invasive Species Act of 1996, mandate to ensure to the maximum extent practicable that aquatic nuisance species not be discharged into United States waters from ships and commenced a regulatory process in 2009 to examine the feasibility of adopting a stringent effluent standard and to determine the appropriate standard. Final United States Coast Guard rule was published on March 23, 2012. Provisions of that rule were made effective.
United States Coast Guard‘s final rule on ballast water management became effective on 21 June 2012. Phase-one standard of the rule established on ballast water management, a quantitative discharge standard for living organisms in ballast water. Application of the phase one standard depends upon the ship’s construction date. Phase-two standard, making that phase-one standard more stringent in the future. In phase-two standard, ballast water exchange remains an approved compliance method, but will be phased out as ships become subject to the quantitative standards. Phase-two standard also sets forth a process by which the Coast Guard will approve ballast water treatment systems for use in killing unwanted aquatic nuisance species in the future. United States Coast Guard ballast water management regulations have been developed and enforced separately from Environmental Protection Agency’s ongoing Ship General Permit process. All new U.S.-flag ships or ships entering United States waters constructed on or after 1 December 2013, must have United States Coast Guard approved ballast water management system.
A ship is deemed to be constructed when its keel is laid for purposes of the regulations. If ship keel has been laid before 1 December 2013, will not be subject to the new regulations, they will still be required to obtain an approved system, but are not required to do so until their first regulatory drydocking after 1 January 2016.
United States Environmental Protection Agency (EPA) has authority pursuant to the Clean Water Act to regulate the discharge of pollutants into United States waters. Clean Water Act established the National Pollutant Discharge Elimination System in 1972. Environmental Protection Agency (EPA) exempted discharges incidental to the normal operation of a ship from the permitting requirements of that system. Many environmental groups sued the Environmental Protection Agency (EPA) in federal district court in California. Many environmental groups claimed that the exemption violated the Clean Water Act. Consequently, the court ordered the Environmental Protection Agency (EPA) in 2006 to develop a program to permit ship discharges in accordance with the Clean Water Act.
According to Environmental Protection Agency (EPA), it would be impossible to issue individual permits to all ships operating or visiting USA. Hence, Environmental Protection Agency (EPA) decided to develop a general permit. General permit to which ships could subscribe by registering a Notice of Intent to comply with the general permit. Environmental Protection Agency (EPA) ultimately developed the Ship General Permit (VGP) for validity of five years effective on 19 December 2008. On 19 December 2013, the new the Ship General Permit (VGP) went into effect. New Ship General Permit (VGP) identifies 27 types of discharges routinely carried out in the normal operation of ships. Shoreside discharge permits given under the Clean Water Act typically set numerical limitations on specific discharges.
United States Clean Water Act may permit a certain amount of pollutants, expressed as parts per million, to be discharged from shoreside. Nevertheless, setting such limits for Ship General Permit (VGP) would be nearly impossible because of the wide range of ships and systems involved. Alternatively, Ship General Permit (VGP) system generally provides that discharges will be considered to be within the scope of the permit if they are carried out in accordance with mandated best management practices. Only type of discharge for which numerical limitations are set for ballast water discharges. Ballast water discharges shall be subject to discharge limits to be obtained through the use of approved ballast water treatment system.
Ship General Permit (VGP) Discharge Categories:
- Deck Washdown and Runoff
- Bilge Water
- Ballast Water
- Anti -Fouling Hull Coatings
- Aqueous Film Forming Foam (AFFF)
- Boiler/Economizer Blowdown
- Cathodic Protection
- Chain Locker Effluent
- Controllable Pitch Propeller and Thruster Hydraulic Fluid and other Oil to Sea Interfaces (Stern Tubes, Thruster Bearings, Stabilizers, Rudder Bearings)
- Distillation and Reverse Osmosis Brine
- Elevator Pit Effluent
- Firemain Systems
- Freshwater Layup
- Gas Turbine Wash Water
- Motor Gasoline and Compensating Discharge
- Non-Oily Machinery Wastewater
- Refrigeration and Air Condensate Discharge
- Seawater Cooling Overboard Discharge
- Seawater Piping Biofouling Prevention
- Small Boat Engine Wet Exhaust (life-boats, landing craft on board large ships)
- Sonar Dome Discharge
- Underwater Ship Husbandry
- Welldeck Discharges
- Graywater Mixed with Sewage
- Exhaust Gas Scrubber Wash Water Discharge
- Fish Hold Effluent
Ship General Permit (VGP) generally does not apply to ships less than 79 feet in length pursuant to an Act of Congress providing for that exemption and renewed at the end of 2014 to the end of 2017. United States Coast Guard and Environmental Protection Agency (EPA) ballast water enforcement regimes present ship owners with difficult choices. United States Coast Guard’s ballast water discharge standards are not the same as the Environmental Protection Agency (EPA)’s Ship General Permit (VGP) ballast water discharge standards and the latter go into effect earlier than United States Coast Guard standards.
A ship may be in compliance with the United States Coast Guard requirements, but not the Environmental Protection Agency (EPA) requirements. As a solution, the Environmental Protection Agency (EPA) has adopted an enforcement policy whereby it is not likely to take any measures against any ship owner who has obtained a ballast water compliance extension from the United States Coast Guard. The Environmental Protection Agency (EPA) has reserved the right, however, to make exceptions where there also other Ship General Permit (VGP) violations or other situations Environmental Protection Agency (EPA) deems egregious.
International requirements apply to ballast water discharges:
- The International Convention for the Control and Management of Ships’ Ballast Water and Sediments
The International Convention for the Control and Management of Ships’ Ballast Water and Sediments was adopted at a diplomatic conference held at the International Maritime Organization (IMO) headquarters on 13 February 2004. The International Convention for the Control and Management of Ships’ Ballast Water and Sediments will come into effect once it has been sufficiently ratified. United States has adopted the International Maritime Organization (IMO) approach for now.
Under the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, all ships will be required to have an approved plan for managing ballast water, must keep a ballast water management log book and must either carry out high seas ballast exchanges or have an approved ballast water treatment system.
International requirements apply to air emissions:
International Maritime Organization (IMO) adopted Annex Vito MARPOL to regulate air emissions from ships in 1997. MARPOL Annex VI standards for air emissions as well as engine and fuel (bunker) standards. Annex VI limits nitrogen oxides (NOx), sulfur oxides (SOx), and particulate emissions from marine diesel engines with a power output of at least 130 KW, as well as the sulfur content of marine fuel (bunker). United States adopted Annex VI as an amendment to the Act to Prevent Pollution from Ships (APPS) in January 2009.
The Act to Prevent Pollution from Ships (APPS) 1980 requirements apply to U.S.-flag ships wherever they are and to non-U.S.-flag ships operating within United States waters. International Maritime Organization (IMO)’s sub-committee Marine Environment Protection Committee adopted amendments to Annex VI on October 2008 which will be effective on 1 July 2010. Adopted amendments provide for progressively lower limits over time for nitrogen oxides (NOx) and sulfur oxides (SOx) emissions. Like, sulfur limit for fuel (bunker) burned in Emission Control Areas (ECAs) declined from 1% to 0.1% on 1 March 1, 2015.
Certificates required to have to comply with MARPOL Annex VI: Every ship operating in international service must have an International Air Pollution Prevention Certificate (IAPP) which is documenting that the ship has been surveyed in accordance with the requirements of MARPOL Annex VI. In most cases, the International Air Pollution Prevention Certificate (IAPP) is issued by the ship’s Classification Society. Furthermore, the flag-state authorities may also issue the International Air Pollution Prevention Certificate (IAPP). As part of the International Air Pollution Prevention Certificate (IAPP) survey process, each engine covered subject to MARPOL Annex VI must have an Engine International Air Pollution Prevention Certificate (EIAPP) and a nitrogen oxides (NOx) Technical File documenting the specific engine parameters and settings to ensure that the engine continues to meet the nitrogen oxides (NOx) emission standards required. For United States ships, the Engine International Air Pollution Prevention Certificate (EIAPP) must be one issued by the United States Environmental Protection Agency. For ships operating under other flags, the Engine International Air Pollution Prevention Certificate (EIAPP) may be issued by an approved classification society. Certificate of Conformity is not technically a MARPOL Annex VI requirement, U.S.-flag ships must also have a Certificate of Conformity for all covered engines, documenting that the engine meets the specific U.S. engine emission standards. Much to the consternation of the U.S.-flag industry, the Environmental Protection Agency (EPA) has decided to maintain its own engine emission standards.
Although Environmental Protection Agency (EPA)’s standards are now somewhat in line with the international requirements, they are not the same and the testing process is also different. All ships are required to maintain MARPOL Annex VI compliance records and samples of bunker fuel (bunker) taken on board, to verify the sulfur content of the fuel (bunker). A ship must also maintain records of when the engines are shifted over to low sulfur fuel (bunker) in anticipation of entry into an Emission Control Areas (ECAs).
U.S.-flag ships are subject to inspection for compliance with MARPOL Annex VI requirements as they are for other safety and environmental requirements. Environmental Protection Agency (EPA) is the lead agency for enforcing compliance with MARPOL Annex VI, as a practical matter United States Coast Guard will take the lead in carrying out initial examinations, as part of their port state control duties. United States Coast Guard and the Environmental Protection Agency (EPA) entered into a Memorandum of Agreement (MoA) in June 2011 setting forth how the agencies will cooperate. Ship owners who are unable to purchase low sulfur, compliant fuel (bunker) to be burned during the time their ship is within a United States Emission Control Areas (ECAs) should notify the Environmental Protection Agency (EPA) prior to entering the Emission Control Areas (ECAs). Such a report does not guarantee that there will be no enforcement action taken against the ship, but may be taken into account in an enforcement process. The Environmental Protection Agency (EPA) checks if the ship owner has made a habit of filing fuel (bunker) non-availability reports and whether other owners on similar voyages have also filed such reports.
Primary measure in an Emission Control Areas (ECAs) is the sulfur content of the bunkers used in marine engines.
MARPOL Annex VI Emission Control Areas (ECAs):
- The Baltic Sea Emission Control Areas (ECAs) entered into force for SOx emissions in 2005
- The North Sea Emission Control Areas (ECAs) entered into force in 2006.
- United States and Canada Emission Control Areas (ECAs) United States and Canada jointly requested that the International Maritime Organization (IMO) to designate the waters within 200 miles of North America and Hawaii as an Emission Control Areas (ECAs) in 2009. The International Maritime Organization (IMO) approved that request and the designation of the North American Emission Control Areas (ECAs) went into effect on 1 August 2012. In June 2010, the United States requested that the International Maritime Organization (IMO) to designate the waters within 50 miles of Puerto Rico and the United States Virgin Islands as an Emission Control Areas (ECAs). The International Maritime Organization (IMO) also approved that request in July 2011 and the United States Caribbean Emission Control Areas (ECAs) became enforceable in January 2014.