Presentation Transcript

1. NAMEPAEIM SEMINAR: MARINE DEBRIS IN THE ENVIRONMENT:THE LEGAL FRAMEWORK Jonathan K. WaldronApril 16, 2014 The information contained herein is abridged and summarized from numerous sources, the accuracy and completeness of which cannot be assured. This should not be construed as legal advice or opinion and is not a substitute for the advice of counsel.
2. Scope of This Presentation MARPOL ANNEX V The Refuse Act The Clean Water Act The Marine Debris Research, Prevention, and Reduction Act
3. Act to Prevent Pollution from Ships MARPOL Implements MARPOL in the United States Annex I (oil) Annex V (garbage) Annex VI (air) Limits discharges, establishes reporting, monitoring equipment, and record keeping requirements Enforcement Options Prohibit a ship from entering port Detain a ship in port Refer the matter to the Flag State Prosecute the violation – administrative, civil, criminal penalties
4. MARPOL Annex V Revisions Revised Annex V entered into effect on January 1, 2013 Approved at IMO in July 2011 and imposes stricter garbage management procedures and documentation requirements for all vessels http://www.imo.org/OurWork/Environment/PollutionPrevention/Garbage/Documents/201%2862%29.pdf Previous Requirements - discharge of garbage into the sea was generally allowed unless specifically prohibited or limited New Regulations Reverse Prior Regulations - imposes a general prohibition on the discharge of all garbage except for: food waste cargo residues operational wastes not harmful to the marine environment carcasses of animals carried as cargo
5. MARPOL Annex V Revisions (cont.) Operational and Logistical Challenges Documentation Requirements and Garbage Management Plans MEPC.219(63) 2012 Annex V Guidelines http://www.imo.org/OurWork/Environment/PollutionPrevention/Garbage/Documents/219%2863%29.pdf Potential Penalty Actions Coast Guard Implementation- Publication of Interim Rule
6. MARPOL Annex V Revisions (cont.) U.S. Implementation - Coast Guard Interim Rule Under APPS, the U.S. automatically accepted the amendments to Annex V when they entered into force  Applies to all U.S. ships and platforms (fixed and floating) The Interim Rule revises garbage management regulations to reflect the revised Annex V  The Interim Rule addresses updates in three primary areas: updated operational requirements new definitions, and replacement of placards
7. MARPOL Annex V Revisions (cont.) The Interim Rule incorporates Annex V’s general prohibition on the discharge of garbage into the sea and exceptions for the conditional discharges of food wastes, cargo residues, cleaning agents and additives in wash water, and animal carcasses   Definitional changes adopted:  “cargo residues,” “cooking oil,” “en route,” “fishing gear,” “fixed or floating drilling rig or other platform,” “harmful to the marine environment,” “incinerator ashes,” “International Maritime Organization Guidelines,” and “recycling” 
8. MARPOL Annex V Revisions (cont.) The Interim Rule also: Alters and expands the placarding requirements  Extends the placard posting requirement to include non-U.S.-flagged vessels that are 40 feet or more  Removes the grandfathering provision for placards installed on vessels prior to May 7, 1997 and requires all placards to be replaced 
9. Challenges Port Reception Facility Compliance Potential vessel delay at port Increased operating costs Reception facilities not available in all ports Classification of Cargo as “harmful to the marine environment” Currently it is the Shipper’s obligation to classify using seven criteria listed IMO Guidance Harmonized database –pending completion Misdeclaration could lead to penalty, including criminal
10. MARPOLEnforcement /Penalties Scope: Any person (including owner, operator, corporate officers, master or other person in charge or with responsibilities for complying with MARPOL Failure to comply with MARPOL requirements regarding (in part): Discharge of oil and noxious liquid substances Garbage discharges and Garbage Record Book entries  Record keeping violations (i.e., Garbage Record Book) could be similar to OWS cases
11. Enforcement / Penalties Administrative/Civil – up to $40,00 per day for each day of violation (and each person) Adjusted for inflation (33 CFR 27.3)-previously $25,000/violation Injunctive – can prevent vessel from operating or require a corrective action Criminal – including fines and imprisonment Penalties applicable to organization and/or individual Vessel liable in rem
12. Deposit of Refuse in Navigable Waters“Refuse Act of 1899” First Federal action to prevent discharge of refuse into navigable waters of United States Background for the National National Pollution Discharge Elimination System (NPDES) that was later created in Section 402 of the Clean Water Act Prohibits discharge/deposit in any manner from any ship, barge, or other floating craft, any refuse matter (i.e. pollutant) into any navigable water of the United States (i.e. three nautical miles) Strict liability –criminal and civil liability/fines including $100,000 for individuals/$200,000 for corporations or in the alternative up to twice the gain derived from the violation or twice the loss to another party from the violation
13. CLEAN WATER ACT Under the Clean Water Act it is illegal to discharge a pollutant without a permit The term pollutant is broadly defined to mean almost anything including solid waste, residue, garbage, rock, sand, and wastes discharged into the water Penalties include Administrative, Civil, and severe Criminal Penalties
14. Marine Debris Research, Prevention, and Reduction Act Introduced February 10, 2005; signed into law December 22, 2005; amended and expanded in 2012 Established a program within the National Oceanic and Atmospheric Administration (“NOAA”)and the U.S. Coast Guard Purpose: To help identify, determine sources of, assess, reduce, and prevent marine debris and its adverse impacts on the marine environment and navigation safety, in coordination with non-Federal entities, and for other purposes.
15. QUESTIONS? CONTACT:Jonathan K. Waldron Blank Rome LLP 202.772.5964 Waldron@BlankRome.com