Tips to Enhance Compliance and Reduce Enforcement Risk
Jeanne M. Grasso and Kierstan L. Carlson
The United States has been aggressively enforcing compliance with the International Convention for the Prevention of Pollution from Ships (“MARPOL”) for nearly 30 years. Enforcement actions have been brought against ship owners and operators across the industry, as well as against individual masters, engineers, shoreside personnel, and other corporate officers.
To date, most MARPOL prosecutions have involved violations of MARPOL Annex I through “magic pipe” bypasses of the Oily Water Separator (“OWS”) or improper discharges of sludge, though some have involved Annex V garbage violations and, very recently, Annex VI emissions violations. Few, other than in the early 1990s, have involved illegal discharges in U.S. waters; rather, virtually all cases have been brought for false entries in the ship’s records, including the Oil Record Book (“ORB”) and Garbage Record Book. This is because maintaining inaccurate records while in domestic waters or presenting inaccurate records to the U.S. Coast Guard (“USCG”) during an inspection is a crime and the jurisdictional hook needed for prosecution. Most cases also involve some kind of unlawful “post-incident conduct” that constitutes an independent crime under U.S. law, such as destroying records or lying to USCG inspectors or special agents. Continue reading “MARPOL Annex VI Enforcement—Are You Prepared?”
The International Maritime Organization (“IMO”), in preparing for the global 0.5 percent fuel oil sulfur limit, recently adopted an amendment to MARPOL Annex VI to support consistent implementation and enforcement of the new requirement. At the same time, the IMO rejected a proposal for an “experience building phase” during the first months of implementation. This put to rest any rumors of a delay in implementation. Meanwhile, the U.S. Coast Guard published procedures by which owners may seek authorization to operate engines that do not meet MARPOL Annex VI NOx Tier III requirements for qualified vessels.
The U.S. Environmental Protection Agency (“EPA”) recently published an update on its website notifying the industry that it would administratively continue the 2013 Vessel General Permit (“VGP”) until a new permit is issued sometime in 2019. 
Environmental laws and regulations in the United States impose substantial recordkeeping and reporting obligations on regulated industries. These requirements are designed to document a company’s compliance with the requirements and limitations established by the regulatory scheme as well as any applicable environmental permits. Regulated companies also are required to maintain their compliance documentation and to submit periodic comprehensive reports to regulators detailing their compliance with environmental standards. These records are used by the Environmental Protection Agency (“EPA”) and the delegated state regulatory agencies to monitor compliance and, if permit exceedances or irregularities in the compliance records are detected, to evaluate the need for enforcement actions.
Action Item: Although the ratification of the IMO’s Ballast Water Convention will not alter U.S. compliance obligations, industry stakeholders must now consider their obligations under international law to ensure compliance with both regimes. Until the U.S. Coast Guard type-approves a ballast water management system (“BWMS”), owners and operators of both U.S. and foreign-flag vessels trading in U.S. waters should take steps to evaluate the compliance obligations under both regimes before making capital investments in BWMSs that may not comply with U.S. law. 
On February 16, 2016, the U.S. District Court for the Eastern District of Louisiana issued a landmark decision with respect to responder immunity. In In re DWH Oil Spill, MDL No. 2179 (ED La, February 16, 2016), the court granted the clean-up responder defendants’ motions for summary judgment with respect to claims asserted against them by plaintiffs who engaged in a variety of clean-up activities and were exposed to oil, dispersants, and other chemicals while doing so as a result of actions or omissions relating to the defendants’ use of dispersants and other response efforts during the Deepwater Horizon incident.