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I am going to present the lawyer’s perspective on compliance in the US which is quite difficult to figure out.
EPA’s 2013 Vessel General Permit
EPA VGP came into being through litigation after thirty years of vessels operating and discharging incidental operations. It has been into force for six years now covering 27 discharges with lots of record keeping. There are couple changes in the new VGP, which came into force in December 2013:
1. Ballast water (numeric limits)
2. Oil-to-Sea Interfaces / Environmentally Acceptable Lubricants
3. Monitoring requirements for ballast water, bilge water, graywater and exhaust gas scrubber effluent
4. Administrative improvements
- Recordkeeping (electronic okay)
- Consolidation of reporting into one Annual Report (on line)
Enforcement is on the rise and USCG is now aware of and focus on NOI requirements, routine inspections and documentation of the VGP requirements. Importantly, the VGP applies outside the three miles zone.
US Ballast Water Management
USCG’s mandatory Ballast Water management and reporting applies to vessels operating in U.S. waters with ballast tanks. There are civil and criminal penalties for non-compliance. Since March 2012 with the Final Rule, there are five options to comply:
- Install and operate a USCG type-approved BWMS on a phased-in schedule
- Use only water from the U.S. public water system
- Do not discharge ballast water in U.S. waters
- Discharge to a shore-based treatment facility
- Complete BWE at least 200 nm from shore until required to have BWMS
- Alternate Management System or Extension
BWM Requirements Comparison – Coast Guard vs EPA VGP
In practice, we have two regulatory agencies regulating the same issue under different legal authorities. There is a lot of guidance; USCG published the Job Aid this summer which basically tells to the marine inspectors what to look for; a very helpful tool for shipowners. If deficiencies are found by the USCG during inspection, they will ask you to immediately correct them and will enter the data into their system. EPA then will look at the database and will decide whether to enforce or not. The EPA will be the agency to issue the penalties. We call this the Ballast Water Conundrum as there are no type-approved systems or practical alternatives to meet the Coast Guard requirements. USCG has issued an extension letter; the first round of extensions was good until January of 2016. The recent extensions are push down to January 2017 which leads me to conclude that the type approvals are that close. EPA took a different approach. As long as there are USCG extensions, EPA decided to make it a very low enforcement priority if you don’t have a system onboard. A low enforcement priority means that if you are complying with the VGP, if you have the USCG extension, if you are doing everything else right, we may exercise our discretion to not enforce. It is important to note that enforcement or low enforcement is not equal to compliance. So, even though you have a Coast Guard extension and EPA says low enforcement, any ballast water discharge would still be a non- compliance which would have to be reported in each annual report. And that I think puts companies into a very bad position. In the US, we had a big debate with trade associations trying to find a solution to this. It was a very difficult effort as all of the varying ship types didn’t come to an agreement on what the best approach would be.
Now the question is; could the Congress actually solve the problem? They could, if they could ever do anything but unfortunately US Congress has been the least active congress this year than almost in history. There are two pieces of legislation pending that would fix this, however politics come into play, Congress is in recess now for another month
North American Emissions Control Area
ECA went into effect on August 2012 and encompasses most of US and Canada out to 200 nautical miles including written procedures for fuel switching and recordkeeping requirements. Per MARPOL, vessels required to use fuel with sulfur content 1.00% or less. On January 1, 2015, sulfur limit reduced to 0.10%. There is guidance on fuel oil non- availability, Coast Guard policy letters, more Job Aids, FAQs. Fuel oil non availability reports are required under MARPOL; one report to Flag State and another to EPA. A number of trading associations are calling for strict enforcement of 0,1% limit.
The main focus in the US is environmental compliance. Safety of course is very important but environmental compliance is what gets all the publicity.
- Annex I
- Examination of ORBs and comparing ‘remaining on board’ volumes to actual soundings
- Annex V
- Multiple garbage-related detentions and prosecutions for discharges in prohibited areas, e.g., Wider Caribbean Region, with inaccurate Garbage Record Book
- Annex VI
- Sampling fuel to ensure compliance
- Enforcement referred to EPA
- Ballast Water
- Verification of salinity to determine if exchanged
Marine casualty reporting is also a big issue in the US. All marine casualties have to be reported if they occur inside twelve miles (navigable waters). A marine casualty is a grounding, allision, loss of propulsion/maneuverability, unseaworthiness/fitness for service, death, injury requiring professional medical treatment, certain property damage, “significant harm to the environment”. There is a fair amount of confusions as to whether something is reportable or not and whether it is a casualty or not. The Coast Guard issued draft guidance to try to assist. They recommend that if you are not sure whether it is something a casualty, it is always prudent to report and then the Coast Guard will evaluate. If Coast Guard evaluates that it is not a casualty, I suggest you to document. If they consider it as a casualty, it means that you have to report it immediately. Reports must be made immediately after addressing resultant safety concerns to the nearest Coast Guard Sector if the casualty occurred within 12 miles. The oral report must be followed by a written report a “Report of Marine Accident, Injury or Death” (CG-2692) Form within 5 days. If also a “Serious Marine Incident”, must do drug/alcohol testing.
In a recent case, a vessel experienced a failure of its main engine and did not report for several hours. There was a $75,000 penalty for failure to immediately report a marine casualty or provide notice of a hazardous condition. My message is to say tuned; keep on top of new developments, watch for what’s in the pipeline, learn from others’ mistakes and always have an implementation plan in place.
In practice, we have two regulatory agencies regulating the same issue under different legal authorities. There is a lot of guidance; USCG published the Job Aid this summer which basically tells to the marine inspectors what to look for; a very helpful tool for shipowners. If deficiencies are found by the USCG during inspection, they will ask you to immediately correct them and will enter the data into their system. EPA then will look at the database and will decide whether to enforce or not. The EPA will be the agency to issue the penalties. We call this the Ballast Water Conundrum as there are no type-approved systems or practical alternatives to meet the Coast Guard requirements. USCG has issued an extension letter; the first round of extensions was good until January of 2016.
The recent extensions are push down to January 2017 which leads me to conclude that the type approvals are that close. EPA took a different approach. As long as there are USCG extensions, EPA decided to make it a very low enforcement priority if you don’t have a system onboard. A low enforcement priority means that if you are complying with the VGP, if you have the USCG extension, if you are doing everything else right, we may exercise our discretion to not enforce. It is important to note that enforcement or low enforcement is not equal to compliance. So, even though you have a Coast Guard extension and EPA says low enforcement, any ballast water discharge would still be a non- compliance which would have to be reported in each annual report. And that I think puts companies into a very bad position. In the US, we had a big debate with trade associations trying to find a solution to this. It was a very difficult effort as all of the varying ship types didn’t come to an agreement on what the best approach would be.
Now the question is; could the Congress actually solve the problem? They could, if they could ever do anything but unfortunately US Congress has been the least active congress this year than almost in history. There are two pieces of legislation pending that would fix this, however politics come into play, Congress is in recess now for another month
North American Emissions Control Area
ECA went into effect on August 2012 and encompasses most of US and Canada out to 200 nautical miles including written procedures for fuel switching and recordkeeping requirements. Per MARPOL, vessels required to use fuel with sulfur content 1.00% or less. On January 1, 2015, sulfur limit reduced to 0.10%. There is guidance on fuel oil non- availability, Coast Guard policy letters, more Job Aids, FAQs. Fuel oil non availability reports are required under MARPOL; one report to Flag State and another to EPA. A number of trading associations are calling for strict enforcement of 0,1% limit.
The main focus in the US is environmental compliance. Safety of course is very important but environmental compliance is what gets all the publicity.
- Annex I
- Examination of ORBs and comparing ‘remaining on board’ volumes to actual soundings
- Annex V
- Multiple garbage-related detentions and prosecutions for discharges in prohibited areas, e.g., Wider Caribbean Region, with inaccurate Garbage Record Book
- Annex VI
- Sampling fuel to ensure compliance
- Enforcement referred to EPA
- Ballast Water
- Verification of salinity to determine if exchanged
Marine casualty reporting is also a big issue in the US. All marine casualties have to be reported if they occur inside twelve miles (navigable waters). A marine casualty is a grounding, allision, loss of propulsion/maneuverability, unseaworthiness/fitness for service, death, injury requiring professional medical treatment, certain property damage, “significant harm to the environment”. There is a fair amount of confusions as to whether something is reportable or not and whether it is a casualty or not.
The Coast Guard issued draft guidance to try to assist. They recommend that if you are not sure whether it is something a casualty, it is always prudent to report and then the Coast Guard will evaluate. If Coast Guard evaluates that it is not a casualty, I suggest you to document. If they consider it as a casualty, it means that you have to report it immediately. Reports must be made immediately after addressing resultant safety concerns to the nearest Coast Guard Sector if the casualty occurred within 12 miles. The oral report must be followed by a written report a “Report of Marine Accident, Injury or Death” (CG-2692) Form within 5 days. If also a “Serious Marine Incident”, must do drug/alcohol testing.
In a recent case, a vessel experienced a failure of its main engine and did not report for several hours. There was a $75,000 penalty for failure to immediately report a marine casualty or provide notice of a hazardous condition. My message is to say tuned; keep on top of new developments, watch for what’s in the pipeline, learn from others’ mistakes and always have an implementation plan in place.
Above article is an edited version of Jeanne Grasso’s presentation during 2014 SAFETY4SEA Forum
More details may be found by viewing her Presentation video