legal rights of owners/operators when faced with citizen ......5,000 gallons of oil into the river....

Copyright © 2010 by K&L Gates LLP. All rights reserved.

Legal rights of owners/operators when faced with citizen suit and government enforcement

actions under U.S. Environmental laws

Barry M. HartmanK&L Gates LLP

barry.hartman@klgates.com23 March 2010

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Subjects of Discussion

Why worry about environmental enforcement

Case study: Cosco Busan

Recent new requirements

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Why Worry About Environmental Enforcement?

Profits

Publicity

Prison/Penalties

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Profits

$$$$$$$$$$

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ProfitsCriminal Sentencing: Disgorgement of Profits

Civil Enforcement: Economic Benefit of Noncompliance

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ProfitsAES Discloses Oklahoma Plant Filed

False Pollution Reports; Stock Plunges

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Publicity

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Publicity

07/24/08 Felony charges for ship’s management

08/17/09 Ship Operator to Pay $10 Million to Settle Criminal Charges in San Francisco Bay Spill

12/09/09 Shipping Firm Ordered to Pay $2.7 Million,Banned From U.S. Waters for Three Years

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Prison

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EPA Criminal Enforcement ProgramFY 2004 – FY 2008

0

5 0

1 0 0

1 5 0

2 0 0

2 5 0

3 0 0

3 5 0

4 0 0

4 5 0

N u m b e r O fC a s e s

In it ia te d

N u m b e r o fD e fe n d a n ts

C h a rg e d

S e n te n c e s(Y e a rs )

F in e s ($ M il ,In f la t io n

A d ju s te d )

2 0 0 42 0 0 52 0 0 62 0 0 72 0 0 8

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Kinds of Criminal Offenses

Misdemeanors < 1 yr

Felonies > 1 yr

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Criminal Liability May be Based on Negligence

Lack of ordinary care

Potential focus on failure of management / training

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The Law

Clean Water Act (33 U.S.C. § 1319(c)(1)(A); 33 U.S.C. § 1321(b)(3))

ElementsDefendant discharged a harmful quantity of oil into U.S. waters;Defendant was negligent; andDefendant’s negligence was a proximate cause of the discharge.

“Ordinary” Negligence = misdemeanor“Knowing violation = felony

Includes faiure to report an oil spill

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Clean Water Act “Negligence”

United States v. Hanousek, 176 F.3d 1116 (9th Cir.1999), cert denied, 528 U.S. 1102 (2000)

Clean Water Act requires only “ordinary” negligence not “gross” or “criminal” negligence

Criminal sanctions for ordinary negligence do not violate Due Process

Thomas, J., dissent from denial of certiorariConcern that Hanousek will affect ordinary industrial activities

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The Law (cont.)

United States v. Franklin Hill, et al. (D. Mass.)Defendant responsible for the navigation of the tugboat; Left his post for 15 minutes without hand-held radio; no one else on the bridge; barge crashes into rocks that were clearly marked on the electronic and paper charts.Defendant sentenced to five months imprisonment.

Hanousek v. United States (9th Cir.)During rock removal operations a backhoe operator accidentally struck high pressure pipeline near railroad tracks, spilling between 1,000 and 5,000 gallons of oil into the river.Supervisor of project was off duty and at home when the accidentoccurred. Convicted under the Clean Water Act for negligently discharging oil into the river; sentenced to six months imprisonment/ six months in a halfway house.

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The Law (cont.)

Migratory Bird Act (16 U.S.C. §§ 703, 707(a))Elements

killing of a migratory bird including Brown Pelicans (Pelecanus Occidentalis), Marbled Murrelets(Brachyramphus Marmoratus), and Western Grebes (Aechmophorus Occidentalis); andWithout permission or authority.

Strict Liability – No need to prove negligence.

Various State LawsCrime to negligently or intentionally spill oil or fail to report spills.

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The Law (cont.)

Seafarers’ Training, Certification and WatchkeepingCode (STCW)

Navigation with pilot on boardThe Master is always in charge of his ship.Presence of pilots on board does not relieve the master or ship’s officers from their obligation to keep the ship safe.The master and pilot must have a meaningful exchange of information before the ship leaves the dock.The master and his officers must cooperate closely with the pilot and maintain an accurate check on the ship’s position and movement.

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Numquam debes purgamentum dare rustico cui nomen

Bubbarum et qui carrum utilem invehit.

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Never Give Your Waste to a ManNamed Bubba Driving a Pick-Up Truck.

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Individual Criminal LiabilityVicarious Liability of Ship Owner/Captain/Supervisors

for Conduct of Crew

Responsible Corporate Officer DoctrineCorporate officers may be liable for the acts of their employees where they “stand[] in responsible relation to a public danger”

United States v. Rivera, 131 F.3d 222 (1st Cir. 1997)Officers may be liable for sending unseaworthy vessel to sea based on vicarious liability

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CORPORATION

FACT F FACT H

FACT G

VP ENVIRONMENT

FACT D

FACT C

FACT B FACT A

VP OPERATIONSGENERAL COUNSEL

CHIEF ENGINEERCAPTAIN

OILERFIRST MATE

Corporate Vicarious Liability

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Federal Sentencing Guidelines

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24 © 2002 K&L Gates

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Base Level Offenses Factors

Offenses involving “knowing endangerment” of others;

Offenses involving mishandling of hazardous or toxic substances (including related recordkeeping offenses);

Offenses involving mishandling of “other” (nontoxic) pollutants (including related recordkeeping offenses);

Offenses involving specially protected fish, wildlife, and plants

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Base Level Offenses Factors (cont.)

Base Level for an Environmental Violation: 8

Possession of 250 grams of marijuana: 8

Murder: 43

Robbery: 20

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Enhancements to Base Level

6 level enhancement of continuous and ongoing violation, USSG §2Q1.2(b)(1)(A);

4 level increase if the violation involved permit requirements, USSG §2Q1.2(b)(4);

Whether the person has committed prior crimes, USSG §4A1.1

4 levels for substantial expenditures for clean up; USSG §2Q1.2(b)(3);

Special Skills contributed to violation

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Enhancements to Base Level (cont.)

Proof of actual contamination or harm may or may not be required depending on court.

United States v. Ferrin, 994 F.2d 658 (9th Cir. 1993); United States v. Hoffman, 2000 U.S. App. LEXIS 5185 (4th Cir. 2000); United States v. Cunningham, 194 F.3d 1186 (11th Cir. 1999); United States v. Liebman, 40 F.3d 544 (2d Cir. 1994);United States v. Goldfaden, 959 F.2d 1324 (5th Cir. 1992

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Enhancements to Base Level (cont.)

Whether the defendant was the supervisor4 levels if more than five persons involved.USSG §3B1.1;2 levels for 2 personsUnited States v. Okoli, 20 F.3d 615 (5th Cir. 1994) defendant must have been the “organizer, leader, manager, or supervisor of one or more other participants.” Need not demonstrate was personally in charge of five or more participants.

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Reductions to Enhanced Level

Whether the offense involved recordkeeping only, USSG §2Q1.2(b)(6); or

Whether the defendant cooperated in the investigation, USSG §3E1.1

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Downward Departures

Is the case outside the “heartland of environmental cases.” USSG §5K2.0.

United States v. Elias, 32 ELR 20,218, 269 F.3d 1003 (9th Cir. 2001)

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Other Factors

Standing in community not normally relevant.

Committing crime to avoid a greater harm not normally relevant.

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Applying the Guidelines

14Total value assigned to offense

-2Decrease because defendant pled guilty/cooperated

+4Increase based on permit violation

+4Increase based supervisory position

8Offense involving a toxic waste

Increase/Decrease Offense Level

Nature of Offense

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Criminal History 1

Applying the Guidelines (cont.)

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36 © 2006 K&L Gates

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Other Relevant Statutes

False Statements – 18 U.S.C. § 1001

Conspiracy – 18 U.S.C. § 371

Obstruction of Justice – 18 U.S.C. §§ 1505-1510

Aiding and Abetting – 18 U.S.C. § 2

Accessory After the Fact – 18 U.S.C. § 3

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Case Study – Cosco Busan

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Damage to the Cosco Busan

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Damage to the Bay Bridge Pier

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Oil Slick on SF Bay

53,500 gallons of oil spilled 2,500 birds killed

Also delayed opening crab season until after Thanksgiving

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The Scene

November 7, 2007(with thanks to Charles Schultz)

Source: http://www.gordoncarroll.com/main/images/stories/snoopy.jpg

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Actually it was a very foggy morning…

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The Cosco Busan’s bridge was equipped with radars, electronic chart, and manned by the ship’s Master, two officers, and an experienced San Francisco Bar Pilot.

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Ferries & Other Vessels on the S.F. Bay that Morning

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What Happened

Timeline of Key Events6:20 a.m. Pilot boarded the vessel6:24 a.m. Initial exchange of information with the ship’s Master6:37 a.m. Coast Guard Vessel Traffic Service (VTS) notified of ship’s intended passage through the “Delta-Echo” opening of Bay Bridge7:44 a.m. Cosco Busan leaves dock in heavy fog8:30 a.m. Cosco Busan scrapes the Bay Bridge Pier and begins to leak bunker fuel

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Reliance on Basic Assumptions

Pilot – The Master and his bridge officers know their ship and their equipment. They will follow the basic international standards relating to a ship leaving port in the fogMaster – The Pilot is the local expert who will take over and navigate us safely from the Oakland Port, through the Bay, and out to seaCoast Guard VTS – There is an experienced pilot on board who knows what he is doing

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Chain of Errors

Lack of Compliance/TrainingMaster/Crew not well trained; did not know how to operate ship’s equipment (including the electronic chart)There was no real pre-sailing voyage planning even though it was otherwise required by law and company protocolsThe Master and his officers did not follow international standards or ship’s procedures relating to lookouts, monitoring of ship’s position, and interactions with PilotMaster and officers falsified various ship records after the incident

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Chain of Errors (cont.)

Failure to CommunicateExchange of information between Pilot and Master incompleteMaster and Pilot misunderstood key symbols on the ship’s electronic chart

Master “guessed” at their meaningHe was wrong in his guess

Ship ultimately badly out of position to safely transit through the opening of the Bay Bridge span

No warning from ship’s Master or crewCoast Guard’s VTS failed to warn

Knew pilot’s intention to sail through “Delta – Echo” portion of Bay Bridge spanActively monitored ship’s progressTimely warning – even in the last minute – could have avoided the accident.

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Electronic Chart(“Red Triangles” and “Center of Bridge”)

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Investigation and Prosecuting AgenciesCoast Guard Investigative ServiceThe Environmental Protection Agency’s Criminal Investigation DivisionFederal Bureau of InvestigationU.S. Fish and Wildlife ServiceSilicon Valley Regional Computer Forensics LaboratoryCalifornia Department of Fish and Game, Office of Spill Prevention and Response.Coast Guard

District 11 Legal Office, Sector San Francisco, Office of Investigations and Analysis, Office of Maritime and International Law, Office of Vessel Activities, Electronics Support Unit Alameda, and the Marine Safety Laboratory

U.S. Attorney's Office for the Northern District of CaliforniaJustice Department's Environmental Crimes SectionLocal District AttorneyNational Transportation Safety BoardLicensing Authorities

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Other Players

Representatives of Ship Owners/Operators

Insurance companies

Media

Politicians

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The Media – Someone Must Be Held Accountable

PilotBar Pilot on Errant Ship Had Several Mishaps in Past (San Francisco Chronicle, November 9, 2007)

State Charges Bay Spill Pilot with Misconduct (San Francisco Chronicle, December 7, 2007)

Role of Pilot’s Sleep Medication Probed (San Francisco Chronicle, January 19, 2008)

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The Media – Someone Must Be Held Accountable (cont.)

Ship’s Master and CrewProbe into Cargo Ship Bay Bridge Crash Focuses on Communication (San Jose Mercury News, November 9, 2007)

Federal Prosecutors Charge Shipping Company in Bay Oil Spill (San Jose Mercury News, July 23, 2008)

Felony Charges for Ship’s Management (San Francisco Chronicle, July 24, 2008)

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Coast GuardResponse to Fuel Spill under Bay Bridge Called ‘Unusually Slow’ (San Francisco Chronicle, November 9, 2007)Coast Guard Monitors Didn’t Warn Ship’s Crew (San Francisco Chronicle, November 16, 2007)Senators Blast Coast Guard Response to Bay Oil Spill (San Francisco Chronicle, November 15, 2007)Coast Guard May Be Neglecting Its Maritime Mission (San Francisco Chronicle, November 16, 2007)Oil Spill Report Berates Coast Guard (San Francisco Chronicle, January 28, 2008)

The Media – Someone Must Be Held Accountable (cont.)

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A few headlines from one Trade Reporter02/22/2010: Enforcement: Fleet Management to Pay $10 Million Fine For Role in 2007 San Francisco Bay Oil Spill

01/22/2010: Oil Spills: Trustees to Develop Restoration Plan For Areas Affected by Cosco Busan Spill

09/16/2009: Oil Spills: Coastal Oil Spills Have Declined 86 percent Over Last 20 Years, Coast Guard Official Says

08/31/2009: Oil Spills: Coast Guard Proposal Would Require Spill Response Plans for Non-Tank Vessels

08/17/2009: Enforcement: Ship Operator to Pay $10 Million to Settle Criminal Charges in San Francisco Bay Spill

07/20/2009: Enforcement: California Ship Pilot Convicted for Oil Spill Sentenced to 10 Months in Federal Prison

06/17/2009: Oil Spills: House Science Subcommittee Approves Bill For Research Into Spill Prevention, Mitigation

05/15/2009: Enforcement: Ship Operator Involved With Oil Spill Into San Francisco Bay Offers Plea Deal

03/09/2009: Enforcement: California Ship Pilot Enters Guilty Plea For Oil Discharge Following Bridge Collision

02/20/2009: Oil Spills: Medication, Communication Cited in 2007 Bay Spill

01/08/2009: Enforcement: California Sues Over San Francisco Bay Spill That Polluted Coastline, Killed Birds in 2007

10/02/2008: Oil Spills: Schwarzenegger Signs Bills to Improve California's Oil Spill Response, Prevention

07/31/2008: Oil Spills: Grand Jury Indicts Operator of Ship Involved in San Francisco Bay Spill

04/23/2008: Enforcement: More Charges Filed Against Harbor Pilot Accused in San Francisco Bay Oil Spill

04/11/2008: Oil Spills: Subcommittee Examines Cleanup of Spill In San Francisco Bay, Coast Guard Response

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The Allegations12 specific negligent acts alleged in criminal indictment including:

Ship’s Master and crew inadequately trainedPilot and ship’s Master/crew failed to navigate an accident free courseThere was an inadequate review before departure of the ship’s navigational charts and the proposed courseThe ship departed in heavy fog The ship’s Master failed to ensure that adequate lookouts were postedThe ship’s Master/crew failed to notify the Pilot that the ship was off-course

The ship’s operating company is vicariously liable for the acts of the ship’s Master/crew

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Clean Water Act “Negligence”

United States v. Hanousek, 176 F.3d 1116 (9th Cir.1999), cert denied, 528 U.S. 1102 (2000)

Clean Water Act requires only “ordinary” negligence (i.e., civil definition), not “gross” or “criminal”negligence (i.e., involuntary manslaughter definition)Criminal sanctions for ordinary negligence do not violate Due Process where statute is a public welfare statuteThomas, J., dissent from denial of certiorari

Concern that Hanousek will affect ordinary industrial activities

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Clean Water Act “Negligence” (cont.)

United States v. Cota, 2008 U.S. Dist. LEXIS 65911District Court applied Hanousek to an oil spill from a containership in the San Francisco BayHeld that CWA is a “public welfare” statute, and therefore criminalizes ordinary civil negligenceRejected argument that heightened or gross negligence should apply to defendant’s conductDefendant pled guilty pursuant to an agreement

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The Result:Individual

Cota indicted on two felonies and two misdemeanors

Pled guilty to two misdemeanors

Sentenced to 10 months in jail

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The Result:Management Company

Pled guilty to obstruction, false statement and violation of OPA

$10 Million fine

$2 Million to SF Bay projects

“Comprehensive Compliance Plan”

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The Result:Master and Crew

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How does a company defend itself?

Clean-up response is paramount

Understanding/key evidence – What happened? Why? Who’s at fault?

Drug testing of key personnel

Preserving paper and electronic evidence

Interviewing key personnel

Hiring lawyers to represent witnesses/subjects/ targets

Managing the public relations nightmare

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How does an individual defend him/herself?

You need legal advice – preferably before you say anything.

Who is representing your personal interests?

Are your interests aligned with company?

Who is going to pay for your legal expenses?

What does the company expect you to do?

Whatever you do, only tell the truth?

Is there an obligation to answer questions?

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How does an individual defend him/herself? (cont.)

Only tell the truth.Do not change or alter evidence even if you are asked/ordered to do so.Don’t try to “get your story straight” without counsel.Assume that oil spills will be investigated as a crime.Usually the Coast Guard is the lead investigative agency.

Even a case that is initially civil can be criminal.Coast Guard investigators may have varying degrees of training/experience.

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Lessons learnedAccidents usually involve a Chain of Errors

Lots of errors here: – Pilot, Ship’s Master and Officers, Ship’s operating company, the United States Coast Guard (VTS and Captain of the Port)Only the Pilot and Ship’s operating company were charged with crimes

Lack of an effective Compliance and training program for the ship’s crewVolumes of written policies Most in English and almost all of the crew were not proficient in English Conflicting responsibilities made it impossible to follow all of the proceduresCrew did not have time to review and absorb the procedures

Vessel Traffic Service (VTS) (failure to Communicate a clear warning)Inadequate exchange of information between maritime professionals can be devastating

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Lessons learned (cont.)

Assume that any oil spill that damages the environment will be considered a Crime

Consult with counsel as early as possibleMake an informed decision before deciding whether you are going to CooperateCompare Captain Cota’s treatment where he voluntarily Cooperated vs. ship’s master and crew who were eventually granted immunity despite false statements

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If you spill oil and kill birds, will you go to jail?

Sentencing GuidelinesStandardized system designed to equalize sentencing in all federal courts.Intentional conduct treated more harshly than negligence.Applicable Sentencing Range – (as high as) 10-16 months (statutory maximum for negligence – 1 year).Intentional acts can be punished with up to 5 years imprisonment.

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If you spill oil and kill birds, will you go to jail? (cont.)

Judge Illston’s Comments at Sentencing “The Exxon Valdez was an object lesson to everyone.”“…What happened [in the Cosco Busan case] is exactly what was meant to be protected against by the statutes. The consequences are just exactly as severe as you might expect….

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Citizen Lawsuits

Section 505 of CWA

Gives private citizens and groups the power to enforce the law when government chooses not to do so using all of the same powers given the government except criminal enforcement.

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Citizen Suit Enforcement

Recovery of attorneys’ fees and costs if the plaintiff “prevails”

Need not have harm to violate the CWA

Penalties go to government

Supplemental projects do not go to government

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Citizen Suit Enforcement

“environmental law is written in such a way that a cartel of environmental advocacy groups is formed and maintained through citizen suits.”

Benson, “Unnatural Bounty: Distorting the Incentives of Major Environmental Groups,” PERC Policy Series, Issue Number PS-37, July 2006 at 9. http://www.perc.org/perc.php?id=842

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Civil Enforcement Actions

Liability (Did you do it?)

Penalty ( How much will the fine be?)

Injunctive Relief (How much will it really cost?)

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Criteria for Assessment of Civil Penalties

Seriousness of violations

Economic benefit of noncompliance

History of violations

Good faith efforts to comply

Economic impact on violator

Other factors as justice may require

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Economic Benefit of Noncompliance Resources

EPA Enforcement Economic Models:http://www.epa.gov/compliance/civil/econmodels/index.html

BEN Model: calculates violator’s economic savings in delaying or avoiding pollution control measures

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Clean Water Act: Penalty Policy

Penalty = Economic Benefit from noncompliance+ Gravity of violation+/- Gravity Adjustment Factors- Litigation Considerations- Ability to Pay- Supplemental Environmental Projects

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Penalty Policy

Gravity = $1000 x (a + b + c + d)A—Significance: the degree of exceedance of effluent limits (scale of 0 to 20)B—Environmental and Health: real or potential harm to humans or environment (scale of 0 to 50)C—Number of violations: how many limits in the permit were violated (scale of 0 to 5, based on percentage)D—Significance of non-limit violations

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Insurance Coverage and Enforcement Actions–Check your Policy

Does insurance cover company/employees for a pollution-causing incident? Will the policy cover the fees to hire criminal counsel?

Criminal cases–remediation costs–conditions of probationIs there a Pollution Exclusion and Buyback clause? If so, you may need to establish

(a) accidental;(b) occurred during the policy period;(c) became known within seven days; and(d) insurance company was notified within 90 days.

Even if you are supposed to be indemnified by another, your insurance should provide you with the means to hire counsel of your own choosing

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New Requirements

Vessel General Permit (water pollution)

Current permit applies to large vessels

Recent study precursor to expansion to fishing vessels and smaller vessels

New Emissions Control Zones (air pollution)

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Vessel General Permit – Basics

Clean Water Act requires a permit for discharge of any pollutant into waters of the US from a point source unless exempted

Pollutant – dirt, hot water, toxics, sediment, and even different water – this is NOT ONLY ABOUT OIL OR BALLAST WATER

Point source – a pipe or a vessel including run off from a deck

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Vessel General Permit – Basics (cont.)

Six Parts to PermitGeneral ConditionsEffluent LimitsCorrective Action RequirementsMonitoring, Inspection, Recordkeeping, ReportingVessel-Specific RequirementsState and Other Supplemental Requirements

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Vessel General Permit – Basics (cont.)

What is Required?

Sets requirements for the management of 26 kinds of discharges

Modifies and adds to requirements based on kind of vessels

Imposes some notification requirements on some vessels

Contains inspection and self reporting obligations

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The Final Vessel General PermitWhere must you comply?

“waters of the United States”—up to 3 miles seaward from low tide mark

Applies no matter the flag of the vessel, and no matter how many times or for what length of time, the vessel is in waters of the United States

Likely applies to vessels in port and idle for seasonal periods (“in transportation”)

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The Final Vessel General PermitWhy It Matters

Not just about ballast water

Consent to inspect and search

EPA enforcement NOT COAST GUARD

Public access to compliance records

Serious civil and criminal penalties

Citizens may sue for violations

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Vessel General Permit26 Discharges

9.  Controllable pitch propeller hydraulic fluid and thruster hydraulic fluid/other oil sea interfaces including dischargesfrom paddle wheel propulsion, stern tubes, thruster bearings, stabilizers, rudder bearings, azimuth thrusters, and propulsion pod lubrication

10. Distillation and reverse osmosisbrine

11. Elevator pit effluent12. Firemain systems13. Freshwater layup

1.  Deck washdown and runoff and above water line hull cleaning

2.  Bilge water3.  Ballast water4.  Anti‐fouling leachate from anti‐

fouling hull coatings5.  Aqueous film forming foam (AFFF)6.  Boiler/economizer blowdown7.  Cathodic protection8.  Chain locker effluent

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Vessel General Permit26 Discharges (cont.)

20. Seawater piping biofouling prevention

21. Small boat engine wet exhaust

22. Sonar dome discharge

23. Underwater ship husbandry

24. Welldeck discharges

25. Graywater mixed with sewage from vessels

26. Exhaust gas scrubber wash water discharge

14. Gas turbine wash water

15. Graywater

16. Motor gasoline and compensating discharge

17. Non‐oily machinery wastewater

18. Refrigeration and air condensate discharge

19. Seawater cooling overboard discharge

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Vessel General PermitWhat Is Not Covered?

Discharges not subject to the former NPDES permit exclusion

Sewage

Used or spent oil

Rubbish, trash, garbage

Photo processing waste

Effluent from dry cleaning operations

Medical waste

Noxious liquids

Tetrachloroethylene (perchloroethylene) degreasers

Discharges currently or previously covered by another permit

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Vessel General PermitWhat Is Not Covered? (cont.)

Discharges NOT covered by this permit are prohibited unless another permit allows them

Ballast tank clean out was an incidental discharge and is not allowed by this permit

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Vessel General Permit RequirementsA Closer Look

Notice of intent to comply

Inspection and identification of discharge streams

Best Management Practices to manage 26 streams

Reports of noncompliance

Corrective action

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The Final Vessel General PermitWho Must File NOI?

Owners / Operators of vessels delivered on or before September 19, 2009

Must file no later than September 19, 2009

Authorization granted until that date; if an NOI is filed prior to September 19, 2009, uninterrupted coverage continues

Owners may probably file for all their vessels rather than have operators of their vessels file

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How Do I Comply?

No fixed formula for compliance EPA has set standards for how each of the 26 incidental discharge streams must be managed:

Some require removal of the pollutant prior to dischargeSome require prevention of the discharge itself

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How Do I Comply? (cont.)

Planning

Training

Management

Documentation

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Best Management Practices (“BMPs”)

best practicable control technology currently available

best available technology economically achievable

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Non-mandatory language may still be mandatory

Best Management Practices (“BMPs”) (cont.)

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Best Management Practices (“BMPs”) (cont.)

“Consistent with all other relevant laws”

“Consistent with good marine practices that prevents excessive discharge….”

“Minimize by practicing proper maintenance”

Exchange ballast water “as early as practicable”

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Best Management Practices (“BMPs”) (cont.)

“Owner/operators must use these non-fluorinated substitutes for training when practicable and achievable.”

“Most effective BMP is to conduct maintenance and training activities as far from shore as possible.”

“Not all biodegradable soaps are appropriate.”

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Best Management Practices (“BMPs”) (cont.)

“Using visual observations ...”

“Vessels that generate wet exhaust must be maintained in good operating condition”

BMP encourages all waste to be collected and disposed of properly

Require that the seals or fittings be maintained in good working order to prevent leakage

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How Do I Develop BMPs?

Develop a BMP working groupIdentify and assess discharge streamsInstitute a BMP policy statement for each BMPEnsure good housekeepingPreventive maintenance is keyIncorporate an inspection and training programEnsure it is implemented and followedKeep detailed recordsRegular reevaluation of BMP based on data

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How Do I Develop BMPs? (cont.)

EPA and international resources:PPICICPIC

Industry associationsAWO http://www.klgates.com/FCWSite/ballast_water/Guidance/AWO_BMP_Manual.pdfMarshal Islandshttp://www.klgates.com/FCWSite/ballast_water/Guidance/Marshall_Isl_VGP_Guidance.pdf

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BMPs and Recordkeeping

The EPA will expect the permit holder to prove it was using Best Management Practices

Often this means keeping records to document compliance

Regulations require that records be maintained and presented if requested

EPA has five years to bring enforcement actions

False statements on record books are punishable by up to five years in prison

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Special Requirements in Certain States

The VGP contains special conditions for 28 states

Applies to discharges in those states’ waters

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Special Requirements in Certain States—Examples

Florida: stricter effluent limits on oil, fuel, and oily mixture discharge

Guam: avoidance of discharge in coral spawning areas during spawning

Great Lakes states – ballast water treatment

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Inspection and Reporting Obligations (§ 4)

InspectionRoutine visual inspections – requires samplingAnalytical monitoringComprehensive annual vessel inspectionsDry-dock inspections

ReportingRecords of violation

RecordkeepingAnnual non-compliance report – was due in February

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Certifications Required for Submissions to EPA

“I have no personal knowledge that the information submitted is other than true,

accurate, and complete.”

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Training

Paperwork necessary but not necessarily sufficient

Be careful of training modules, software and pitches

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Corrective Action Obligations (§ 3)

VGP requires “corrective action”

Triggers for corrective action – noncompliance

Corrective action assessment

Deadlines for corrective action

Effect of corrective action

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Enforcement

Civil EnforcementCivil penalties of up to $37,500 per day of violationInjunctive relief could:

prohibit vessel from operating until violation correctedrequire that action be taken to correct harm from violation require that other compensatory action be taken to address environmental impacts related to the violations

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What’s Next?

Legal ChallengesLCA/AWO/CSA v. EPANorthwest Envir. Advocates v. EPANRDC v. EPA

Issues

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Expectation for Enforcement

24,000 vessels expected to be subject to permit

If 1% have some violative condition = 240

If 10% = 2400

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New Air Pollution limits

Limits sulfur dioxide emissions severely

Based on IMO requirements

Copyright © 2010 by K&L Gates LLP. All rights reserved.

QUESTIONS?

http://www.klgates.com/practices/vessel_discharge_resources/barry.hartman@klgates.com

202.778.9338