Category: Environmental Compliance

Finally—A Path Forward for Implementation of the Vessel Incidental Discharge Act

Jeanne M. Grasso and Dana S. Merkel

Background

In December 2018, the Vessel Incidental Discharge Act (“VIDA”) was signed into law and intended to replace the Environmental Protection Agency’s (“EPA”) 2013 Vessel General Permit (which has been in place for nearly ten years) to bring uniformity, consistency, and certainty to the regulation of incidental discharges from U.S. and foreign-flag vessels. VIDA amended the Clean Water Act and will substantially alter how EPA and the United States Coast Guard (“USCG”) regulate vessel discharges. VIDA required EPA to finalize uniform performance standards for each type of incidental discharge by December 2020, a deadline that the EPA has missed by nearly three years, and requires the USCG to implement EPA’s final standards within two years thereafter.

In October 2020, EPA published a proposed rule titled Vessel Incidental Discharge National Standards of Performance to implement VIDA, but the proposal languished with the change from the Trump Administration to the Biden Administration. In January 2023, more than two years later, EPA announced its plans to issue a Supplemental Notice of Proposed Rulemaking in the Fall of 2023. EPA indicated that the Supplemental Notice was intended to clarify its proposed rule, share ballast water data compiled by the USCG, and propose additional regulatory options.

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A Practical Approach to Reduce MARPOL Enforcement Risks in the United States

Kierstan L. Carlson and Jeanne M. Grasso


Readers of Mainbrace know well that the United States has been aggressively enforcing compliance with MARPOL for decades. Often referred to as “magic pipe” cases, the U.S. Department of Justice (“DOJ”) has brought criminal MARPOL prosecutions against owners and operators of ships running the gamut from fishing vessels to bulkers, tankers, container ships, and cruise ships. These prosecutions have involved underlying violations of MARPOL Annex I (oil), but also Annex V (garbage) and more recently Annex VI (air emissions).

Criminal MARPOL cases are extraordinarily costly and disruptive to vessel owners/operators. Not only are significant fines levied against violators, but companies convicted of MARPOL violations suffer attendant reputational damage that can impact charter hire prospects and incur significant costs for paying wages, housing, and per diem to the crew members whom the government requires to remain in the United States for the duration of the criminal case. On top of that are the costs associated with a comprehensive Environmental Compliance Plan for the fleet, along with costs associated with a Third-Party Auditor and a Court-Appointed Monitor.

Unlike other areas of U.S. criminal enforcement, MARPOL prosecutions have continued at a steady pace, across administrations led by different political parties. This is due, in part, to the fact that the Act to Prevent Pollution from Ships (“APPS”), the U.S. statute that implemented MARPOL, is enforced by the U.S. Coast Guard (“USCG”), which is typically less affected by political change than other executive agencies responsible for criminal enforcement. Perhaps more importantly, APPS includes a whistleblower provision pursuant to which anyone who provides information to the USCG that leads to a conviction may be awarded up to 50 percent of the criminal penalty imposed under APPS. Potential awards incentivize seafarers to report misconduct to the USCG instead of to the company, even in cases where there is an open-reporting program. It also gives the USCG and DOJ a significant advantage, as they often receive photos and videos of the alleged improper conduct before their investigation even begins.

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Transfer of Offshore Wind Safety and Environmental Responsibilities

Dana S. Merkel and Jonathan K. Waldron

The Department of the Interior (“DOI”) transferred safety and environmental oversight for the Outer Continental Shelf (“OCS”) renewable energy program from the Bureau of Ocean Energy Management (“BOEM”) to the Bureau of Safety and Environmental Enforcement (“BSEE”) on January 31, 2023. Importantly, the transfer does not affect current regulatory requirements for offshore wind development, but merely the agency responsible for oversight and enforcement.

Background

A number of reorganizations have occurred over the years since the Energy Policy Act of 2005 authorized the Secretary of Interior to grant OCS leases for renewable energy activities. When the Minerals Management Service was divided in 2011 following the Deepwater Horizon incident, the Secretary of Interior highlighted the importance of separating the lease planning and management functions and safety and environmental enforcement functions into two separate entities, creating BOEM and BSEE, respectively. A third entity was also created to manage the royalty and revenue management functions.

The renewable energy program, however, remained with BOEM entirely as the program was still in early development. It was noted that the renewable energy program would be split between the entities when it is determined that “an increase in activity justifies transferring the inspection and enforcement functions” to BSEE.

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Compliance, Enforcement Risks, and Emerging Issues Regarding EPA’s Vessel General Permit

Jeanne M. Grasso and Dana S. Merkel

About a year ago, we wrote about a rise in enforcement of the U.S. Environmental Protection Agency’s (“EPA”) Vessel General Permit (“VGP”). In the words of one EPA attorney, that was “just the beginning” and we have continued to see more aggressive reviews of VGP compliance and penalty demands, particularly on the U.S. West Coast. Since then, EPA has continued demanding significant penalties for alleged violations, sometimes citing interpretations of the VGP that are not outlined in any guidance documents. Additionally, in January 2023, EPA published an Enforcement Alert, EPA Reminder About Clean Water Act Vessel General Permit Requirements, reminding the maritime industry of the VGP requirements and impacts of non-compliance, and citing recent enforcement examples.

The VGP and VIDA Implementation

The VGP was issued under the Clean Water Act’s (“CWA”) National Pollutant Discharge Elimination System (“NPDES”) program and provides permit coverage nationwide for discharges incidental to the normal operation of commercial vessels more than 79 feet in length. EPA issued the first version of the VGP in 2008 and then another, more stringent version in 2013. The VGP set effluent limits and mandated Best Management Practices to control certain types of incidental discharges. It also required vessels to conduct routine and annual inspections and imposed numerous recordkeeping obligations, as well as monitoring and reporting requirements.

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EPA Ramps-Up VGP Inspections and Enforcement

Jeanne M. Grasso and Kierstan L. Carlson


We are just over one year into the Biden administration and environmental enforcement is on the rise. Although enforcement dropped dramatically under the Trump administration, the current administration has been clear about its intent to use environmental enforcement tools to “encourage and incentivize compliance by private sector entities,” quoting Assistant Attorney General Todd Kim, head of the Environment and Natural Resources Division of the Department of Justice. This focus has borne out in several ways, including what seems to be an increase in inspections and enforcement of the U.S. Environmental Protection Agency’s (“EPA”) Vessel General Permit (“VGP”) in several EPA regions around the country. The risk of getting caught in the EPA’s crosshairs for a VGP violation is real and should be front-of-mind for companies across the shipping sector.

History of the VGP and Implementation of the Vessel Incidental Discharge Act

The VGP originated from a lawsuit challenging the EPA’s exemption of discharges “incidental to the normal operation of a vessel” from permitting requirements under the Clean Water Act’s (“CWA”) National Pollutant Discharge Elimination System (“NPDES”), an exemption that had been in place for about 30 years. In 2005, a federal court found that the EPA’s vessel exemption was illegal and required the agency to develop a permitting program for incidental discharges. From there the VGP was born.

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Mainbrace Live: U.S. Maritime Regulatory Update

Blank Rome’s internationally recognized Maritime & International Trade practice group presents a new series of informative webinars covering hot topics in the shipping industry and key insights into 2021 and beyond. Sessions will cover:

    • Sanctions and international trade
    • Offshore wind developments
    • Shipping litigation
    • Maritime regulation
    • Ship finance
    • And more!

For the fourth webinar in our Mainbrace Live series, Blank Rome LLP attorneys Jeanne M. Grasso, Dana S. Merkel, and Stefanos N. Roulakis presented “U.S. Maritime Regulatory Update” on Tuesday, June 22, 2021.

Jeanne, Dana, and Stefanos discussed:

    • The conundrum in ballast water management: VIDA, VGP, and the IMO
    • Ongoing industry challenges as COVID-19 continues
    • Emerging greenhouse gas regulation and shipping

MODERATOR

    • Jeanne M. Grasso, Partner and Co-Chair, Maritime & International Trade Practice Group

PRESENTERS

    • Dana S. Merkel, Associate, Maritime Practice Group
    • Stefanos N. Roulakis, Associate, Maritime Practice Group

To watch a recording of this webinar, please go to the webinar on-demand registration page here.

Mainbrace Live: U.S. Maritime Litigation Trends

Blank Rome’s internationally recognized Maritime & International Trade practice group presents a new series of informative webinars covering hot topics in the shipping industry and key insights into 2021 and beyond. Sessions will cover:

    • Sanctions and international trade
    • Offshore wind developments
    • Shipping litigation
    • Maritime regulation
    • Ship finance
    • And more!

For the third webinar in our Mainbrace Live series, Blank Rome LLP attorneys William R. Bennett, III, Lauren B. Wilgus, Jeremy A. Herschaft, Zachary J. Wyatte, and Noe S. Hamra presented “U.S. Maritime Litigation Trends” on Tuesday, May 18, 2021.

Bill, Lauren, Jeremy, Zach, and Noe discussed:

    • 1782: Purpose and criteria 
    • Judgment enforcement: Arrest, attachment, and more 
    • Timeline of a federal case: From complaint to trial, discovery, etc. 
    • Spill investigations: Practical “boots on the ground” information

MODERATOR

PRESENTERS

    • Lauren B. Wilgus, Partner, Maritime Practice Group
    • Jeremy A. Herschaft, Partner, Maritime Practice Group
    • Zachary J. Wyatte, Associate, Maritime Practice Group
    • Noe S. Hamra, Associate, Maritime Practice Group

To watch a recording of this webinar, please go to the webinar on-demand registration page here.

Mainbrace Live: U.S. Offshore Wind Industry Update

Blank Rome’s internationally recognized Maritime & International Trade practice group presents a new series of informative webinars covering hot topics in the shipping industry and key insights into 2021 and beyond. Sessions will cover:

    • Sanctions and international trade
    • Offshore wind developments
    • Shipping litigation
    • Maritime regulation
    • Ship finance
    • And more!

For the second webinar in our Mainbrace Live series, Blank Rome LLP Maritime attorneys Thomas H. Belknap, Jr., Joan M. Bondareff, Jonathan K. Waldron, Douglas J. Shoemaker, and Dana S. Merkel presented “U.S. Offshore Wind Industry Update” on Tuesday, April 27, 2021.

Tom, Joan, Jon, Douglas, and Dana discussed:

    • U.S. offshore wind development projects and infrastructure
    • Biden Administration’s commitments to expand renewable energy
    • The Jones Act’s impacts on existing and planned offshore wind installation and servicing projects
    • Pitfalls and opportunities for contractors and service providers looking to enter the industry

MODERATOR

PRESENTERS

You can read coverage of this webinar at TradeWinds here.

To watch a recording of this webinar, please go to the webinar on-demand registration page here.

Mainbrace Live: Prepare for the Biden Administration’s Maritime & Foreign Policy

Blank Rome’s internationally recognized Maritime & International Trade practice group presents a new series of informative webinars covering hot topics in the shipping industry and key insights into 2021 and beyond. Sessions will cover:

    • Sanctions and international trade
    • Offshore wind developments
    • Shipping litigation
    • Maritime regulation
    • Ship finance
    • And more! 

To open the series, on April 13, 2021, Blank Rome LLP Maritime Partners Matthew J. Thomas and Kierstan L. Carlson, along with Blank Rome Government Relations LLC Senior Advisor David S. Jansen, presented “Mainbrace Live: Prepare for the Biden Administration’s Maritime & Foreign Policy.”

Matt, Kierstan, and David discussed the outlook for maritime policymaking under the new Administration and its impacts on the global shipping industry, including:

    • Maritime outlook for the new Congress and Administration
    • International trade sanctions and foreign policy 
    • Enforcement trends

MODERATOR

PRESENTERS

To watch a recording of this webinar, please go to the webinar on-demand registration page here.

Marine Plastic Pollution

Joan M. Bondareff and Dana S. Merkel

Joan M. BondareffAs the inveterate pundit Pogo once said, “We have met the enemy and he is us.” This could very well be said for our disposable society, which uses and disposes tons of plastic in ways that are not wise and negatively impact the health of our oceans and sea life within. Although many reports focus on larger plastics, microplastics, which go largely unnoticed, are also wreaking havoc on our oceans. Microplastics are small pieces of plastic that come from a variety of sources, both from degradation of larger plastics and from tiny manufactured plastics that are added to many health and beauty products as exfoliants. Recent surveys by Australian scientists estimate that there are at least 14 million tons of microplastics on the ocean floor, with higher concentrations where plastics accumulate at the surface of the water. 

Finding a Solution

Scientists are working hard to find a solution to the plastic problem—particularly the fact that plastic never completely breaks down, but rather only breaks into smaller and smaller pieces. A number of new and interesting ideas have been proposed, such as plastic-eating caterpillars and super enzymes. However, until we have a better system for breaking up plastics harmlessly, we need to develop plans for reducing and recovering marine plastic waste.  

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