Regulation of ship pollution in the United States

International laws and regulations

MARPOL 73/78 is one of the most important treaties regulating pollution from ships. Six Annexes of the Convention cover the various sources of pollution from ships and provide an overarching framework for international objectives. In the U.S., the Convention is implemented through the Act to Prevent Pollution from Ships. Under the provisions of the Convention, the United States can take direct enforcement action under U.S. laws against foreign-flagged ships when pollution discharge incidents occur within U.S. jurisdiction. When incidents occur outside U.S. jurisdiction or jurisdiction cannot be determined, the United States refers cases to flag states, in accordance with MARPOL. These procedures require substantial coordination between the Coast Guard, the State Department, and other flag states, and the response rate from flag states has been poor. [2000 GAO Report, pp. 19-21.]

Federal laws and regulations

In the United States, several federal agencies have some jurisdiction over ships in U.S. waters, but no one agency is responsible for or coordinates all of the relevant government functions. The U.S. Coast Guard and EPA have principal regulatory and standard-setting responsibilities, and the Department of Justice prosecutes violations of federal laws. In addition, the Department of State represents the United States at meetings of the IMO and in international treaty negotiations and is responsible for pursuing foreign-flag violations. Other federal agencies have limited roles and responsibilities. For example, the National Oceanic and Atmospheric Administration (NOAA, Department of Commerce) works with the Coast Guard and EPA to report on the effects of marine debris. The Animal and Plant Health Inspection Service (APHIS) is responsible for ensuring quarantine inspection and disposal of food-contaminated garbage (these APHIS responsibilities are part of the Department of Homeland Security). In some cases, states and localities have responsibilities as well.

ewage

The Federal Water Pollution Control Act, or Clean Water Act (CWA), is the principal U.S. law concerned with limiting polluting activity in the nation’s streams, lakes, estuaries, and coastal waters. The act’s primary mechanism for controlling pollutant discharges is the National Pollutant Discharge Elimination System (NPDES) program, authorized in Section 402. In accordance with the NPDES program, pollutant discharges from point sources — a term that includes vessels — are prohibited unless a permit has been obtained. While sewage is defined as a pollutant under the act, sewage from vessels is exempt from this statutory definition and is therefore exempt from the requirement to obtain an NPDES permit. Further, EPA regulations implementing the NPDES permit program provide that “discharges incidental to the normal operation of vessels” are excluded from regulation and thus from permit requirements (40 CFR §122.3(a)). However, a 2006 federal court ruling could result in changes to these regulations that would remove the current permitting exemption (see discussion of "Ballast water").

Marine sanitation devices

Section 312 of the Clean Water Act seeks to address this gap by prohibiting the dumping of untreated or inadequately treated sewage from vessels into the navigable waters of the United States (defined in the act as within convert|3|mi|km of shore). It is implemented jointly by EPA and the Coast Guard. Under Section 312, commercial and recreational vessels with installed toilets are required to have marine sanitation devices (MSDs), which are designed to prevent the discharge of untreated sewage. EPA is responsible for developing performance standards for MSDs, and the Coast Guard is responsible for MSD design and operation regulations and for certifying MSD compliance with the EPA rules. MSDs are designed either to hold sewage for shore-based disposal or to treat sewage prior to discharge. Beyond convert|3|mi|km, raw sewage can be discharged.

The Coast Guard regulations cover three types of MSDs (33 CFR Part 159). Large vessels use either Type II or Type III MSDs. In Type II MSDs, the waste is either chemically or biologically treated prior to discharge and must meet limits of no more than 200 fecal coliforms per 100 milliliters and no more than 150 milligrams per liter of suspended solids. Type III MSDs store wastes and do not treat them; the waste is pumped out later and treated in an onshore system or discharged outside U.S. waters. Type I MSDs use chemicals to disinfect the raw sewage prior to discharge and must meet a performance standard for fecal coliform bacteria of not greater than 1,000 per 100 milliliters and no visible floating solids. Type I MSDs are generally only found on recreational vessels or others under convert|65|ft|m in length. The regulations, which have not been revised since 1976, do not require ship operators to sample, monitor, or report on their effluent discharges.

Critics point out a number of deficiencies with this regulatory structure as it affects large vessels. First, the MSD regulations only cover discharges of bacterial contaminants and suspended solids, while the NPDES permit program for other point sources typically regulates many more pollutants such as chemicals, pesticides, heavy metals, oil, and grease that may be released by large vessels as well as land-based sources. Second, sources subject to NPDES permits must comply with sampling, monitoring, recordkeeping, and reporting requirements, which do not exist in the MSD rules.

In addition, the Coast Guard, responsible for inspecting vessels for compliance with the MSD rules, has been heavily criticized for poor enforcement of Section 312 requirements. In its 2000 report, the GAO said that Coast Guard inspectors “rarely have time during scheduled ship examinations to inspect sewage treatment equipment or filter systems to see if they are working properly and filtering out potentially harmful contaminants.” GAO reported that a number of factors limit the ability of Coast Guard inspectors to detect violations of environmental law and rules, including the inspectors’ focus on safety, the large size some ships, limited time and staff for inspections, and the lack of an element of surprise concerning inspections.25 The Coast Guard carries out a wide range of responsibilities that encompass both homeland security (ports, waterways, and coastal security, defense readiness, drug and migrant interdiction) and non-homeland security (search and rescue, marine environmental protection, fisheries enforcement, aids to navigation). Since the September 11 terrorist attacks on the United States, the Coast Guard has focused more of its resources on homeland security activities.26 One likely result is that less of the Coast Guard’s time and attention are available for vessel inspections for MSD or other environmental compliance.

Annex IV of MARPOL was drafted to regulate sewage discharges from vessels. It has entered into force internationally and would apply to ships that are flagged in ratifying countries, but because the United States has not ratified Annex IV, it is not mandatory that ships follow it when in U.S. waters. However, its requirements are minimal, even compared with U.S. rules for MSDs. Annex IV requires that vessels be equipped with a certified sewage treatment system or holding tank, but it prescribes no specific performance standards. Within three miles (5 km) of shore, Annex IV requires that sewage discharges be treated by a certified MSD prior to discharge. Between three and convert|12|mi|km from shore, sewage discharges must be treated by no less than maceration or chlorination; sewage discharges beyond convert|12|mi|km from shore are unrestricted. Vessels are permitted to meet alternative, less stringent requirements when they are in the jurisdiction of countries where less stringent requirements apply. In U.S. waters, vessels must comply with the regulations implementing Section 312 of the Clean Water Act.

On some ships, especially many of those that travel in Alaskan waters, sewage is treated using Advanced Wastewater Treatment (AWT) systems that generally provide improved screening, treatment, disinfection, and sludge processing as compared with traditional Type II MSDs. AWTs are believed to be very effective in removing pathogens, oxygen demanding substances, suspended solids, oil and grease, and particulate metals from sewage, but only moderately effective in removing dissolved metals and nutrients (ammonia, nitrogen and phosphorous).

No-discharge zones

Section 312 has another means of addressing sewage discharges, through establishment of no-discharge zones (NDZs) for vessel sewage.A state may completely prohibit the discharge of both treated and untreated sewage from all vessels with installed toilets into some or all waters over which it has jurisdiction (up to convert|3|mi|km from land). To create a no-discharge zone to protect waters from sewage discharges by vessels, the state must apply to EPA under one of three categories.
# NDZ based on the need for greater environmental protection, and the state demonstrates that adequate pumpout facilities for safe and sanitary removal and treatment of sewage from all vessels are reasonably available. As of 2008, this category of designation has been used for 61 areas representing part or all of the waters of 26 states, including a number of inland states.
# NDZ for special waters found to have a particular environmental importance (e.g., to protect environmentally sensitive areas such as shellfish beds or coral reefs); it is not necessary for the state to show pumpout availability. This category of designation has been used twice (state waters within the Florida Keys National Marine Sanctuary and the Boundary Waters Canoe area of Minnesota).
# NDZ to prohibit the discharge of sewage into waters that are drinking water intake zones; it is not necessary for the state to show pumpout availability. This category of designation has been used to protect part of the Hudson River in New York.

Graywater

Under current federal law, graywater is not defined as a pollutant, nor is it generally considered to be sewage. By regulation, EPA exempts discharges incidental to the normal operation of a vessel, including graywater, from NPDES permit requirements (40 CFR § 122.3); however, a federal court has ordered EPA to set aside this rule (see discussion of ballast water). There are no separatefederal effluent standards for graywater discharges. The Clean Water Act only includes graywater in its definition of sewage for the express purpose of regulating commercial vessels in the Great Lakes, under the Section 312 MSD requirements. Thus, currently graywater can be discharged by vessels anywhere — except in the Great Lakes, where the Section 312 MSD rules apply, but those rules prescribe limits only for bacterial contaminant content and total suspended solids in graywater. Pursuant to a state law in Alaska, graywater must be treated prior to discharge into that state’s waters (see discussion below).

olid waste

Ship discharges of solid waste are governed by two laws. Title I of the Marine Protection, Research, and Sanctuaries Act (MPRSA, 33 U.S.C. 1402-1421) applies to cruise ships and other vessels and makes it illegal to transport garbage from the United States for the purpose of dumping it into ocean waters without a permit or to dump any material transported from a location outside the United States into U.S. territorial seas or the contiguous zone (within convert|12|nmi|km from shore) or ocean waters. EPA is responsible for issuing permits that regulate the disposal of materials at sea (except for dredged material disposal, for which the U.S. Army Corps of Engineers is responsible). Beyond waters that are under U.S. jurisdiction, no MPRSA permit is required for a ship to discharge solid waste. The routine discharge of effluent incidental to the propulsion of vesselsis explicitly exempted from the definition of dumping in the MPRSA.28

The Act to Prevent Pollution from Ships (APPS, 33 U.S.C. 1901-1915) and its regulations, which implement U.S.-ratified provisions of MARPOL, also apply to ships. APPS prohibits the discharge of all garbage within convert|3|nmi|km of shore, certain types of garbage within convert|12|nmi|km offshore, and plastic anywhere. It applies to all vessels, whether seagoing or not, regardless of flag, operating in U.S. navigable waters and the Exclusive Economic Zone (EEZ). It is administered by the Coast Guard which carries out inspection programs to insure the adequacy of port facilities to receive offloaded solid waste.

Hazardous waste

The Resource Conservation and Recovery Act (RCRA, 42 U.S.C. 6901-6991k) is the primary federal law that governs hazardous waste management through a “cradle-to-grave” program that controls hazardous waste from the point of generation until ultimate disposal. The act imposes management requirements on generators, transporters, and persons who treat or dispose of hazardous waste. Under this act, a waste is hazardous if it is ignitable, corrosive, reactive, or toxic, or appears on a list of about 100 industrial process waste streams and more than 500 discarded commercial products and chemicals. Treatment, storage, and disposal facilities are required to have permits and comply with operating standards and other EPA regulations.

The owner or operator of a ship may be a generator and/or a transporter of hazardous waste, and thus subject to RCRA rules. Issues that the ship industry may face relating to RCRA include ensuring that hazardous waste is identified at the point at which it is considered generated; ensuring that parties are properly identified as generators, storers, treaters, or disposers; and determining the applicability of RCRA requirements to each. Hazardous waste generated onboard ships is stored onboard until the wastes can be offloaded for recycling or disposal in accordance with RCRA.29

A range of activities on board cruise generate hazardous wastes and toxic substances that would ordinarily be presumed to be subject to RCRA. Ships are potentially subject to RCRA requirements to the extent that chemicals used for operations such as ship maintenance and passenger services result in the generation of hazardous wastes. However, it is not entirely clear what regulations apply to the management and disposal of these wastes.30 RCRA rules that cover small-quantity generators (those that generate more than 100 kilograms but less than 1,000 kilograms of hazardous waste per month) are less stringent than those for large-quantity generators (generating more than 1,000 kilograms per month), and it is unclear whether ships are classified as large or small generators of hazardous waste. Moreover, some ship companies argue that they generate less than 100 kilograms per month and therefore should be classified in a third category, as “conditionally exempt small-quantity generators,” a categorization that allows for less rigorous requirements for notification, recordkeeping, and the like.31

A release of hazardous substances by a vessel could also theoretically trigger the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund, 42 U.S.C. 9601-9675).

In addition to RCRA, hazardous waste discharges from ships are subject to Section 311 of the Clean Water Act, which prohibits the discharge of hazardous substances in harmful quantities into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone.

Bilge water

Section 311 of the Clean Water Act, as amended by the Oil Pollution Act of 1990 (33 U.S.C. 2701-2720), applies to ships and prohibits discharge of oil or hazardous substances in harmful quantities into or upon U.S. navigable waters, or into or upon the waters of the contiguous zone, or which may affect natural resources in the U.S. EEZ (extending convert|200|mi|km offshore). Coast Guard regulations (33 CFR §151.10) prohibit discharge of oil within convert|12|mi|km from shore, unless passed through a 15-ppm oil water separator, and unless the discharge does not cause a visible sheen. Beyond convert|12|mi|km, oil or oily mixtures can be discharged while a vessel is proceeding en route and if the oil content without dilution is less than 100 ppm. Vessels are required to maintain an Oil Record Book to record disposal of oily residues and discharges overboard or disposal of bilge water.

In addition to Section 311 requirements, the Act to Prevent Pollution from Ships (APPS) implements MARPOL Annex I concerning oil pollution. APPS applies to all U.S. flagged ships anywhere in the world and to all foreign flagged vessels operating in the navigable waters of the United States, or while at a port under U.S. jurisdiction. To implement APPS, the Coast Guard has promulgated regulations prohibiting the discharge of oil or oily mixtures into the sea within convert|12|nmi|km of the nearest land, except under limited conditions. However, because many ships are foreign registered and because APPS only applies to foreign ships within U.S. navigable waters, the APPS regulations have limited applicability to ship operations.

Ballast water

Clean Water Act regulations currently exempt ballast water discharges incidental to the normal operation of cruise ships and other vessels from NPDES permit requirements (see above discussions concerning sewage and graywater). Because of the growing problem of introduction of invasive species into U.S. waters via ballast water, in January 1999, a number of conservation organizations, fishing groups, native American tribes, and water agencies petitioned EPA to repeal its 1973 regulation exempting ballast water discharge, arguing that ballast water should be regulated as the “discharge of a pollutant” under the Clean Water Act’s Section 402 permit program. EPA rejected the petition in September 2003, saying that the “normal operation” exclusion is long-standing agency policy, to which Congress has acquiesced twice (in 1979 and 1996) when it considered the issue of aquatic nuisance species in ballast water and did not alter EPA’s CWA interpretation.32 Further, EPA said that other ongoing federal activities related to control of invasive species in ballast water are likely to be more effective than changing the NPDES rules.33 Until recently, these efforts to limit ballast water discharges by cruise ships and other vessels were primarily voluntary, except in the Great Lakes. Since 2004, all vessels equipped with ballast water tanks must have a ballast water management plan.34

After the denial of their administrative petition, the environmental groups filed a lawsuit seeking to force EPA to rescind the regulation that exempts ballast water discharges from CWA permitting. In March 2005, a federal district court ruled in favor of the groups, and in September 2006, the court remanded the matter to EPA with an order that the challenged regulation be set aside by September 30, 2008 (Northwest Environmental Advocates v. EPA, No. C 03-05760 SI (N.D.Cal, September 18, 2006)). The district court rejected EPA’s contention that Congress had previously acquiesced in exempting the “normal operation” of vessels from CWA permitting and disagreed with EPA’s argument that the court’s two-year deadline creates practical difficulties for the agency and the affected industry. Significantly, while the focus of the environmental groups’ challenge was principally to EPA’s permitting exemption for ballast water discharges, the court’s ruling — and its mandate to EPA to rescind the exemption in 40 CFR §122.3(a) — applies fully to other types of vessel discharges that are covered by the regulatory exemption, including graywater and bilge water.

The government has appealed the district court’s ruling, and the parties are waiting for a ruling from the appeals court. However, in June 2007, EPA also initiated steps seeking public comment on regulating ballast water discharges from ships, an information-gathering prelude to a potential rulemaking in response to the district court’s order.

The 110th Congress has been considering ballast water discharge issues, specifically legislation to provide a uniform national approach for addressing aquatic nuisance species from ballast water under a program administered by the Coast Guard (S. 1578, ordered reported by the Senate Commerce Committee on September 27, 2007, and H.R. 2830 (H.Rept. 110-338)). Some groups oppose S. 1578 and H.R. 2830, because the legislation would preempt states from enacting ballast water management programs more stringent than Coast Guard requirements, while the CWA does allow states to adopt requirements more stringent than in federal rules. Also, while the CWA permits citizen suits to enforce the law, the pending legislation includes no citizen suit provisions.

ee also

*Coastwise shipping laws
*Marine Environmental Protection
*Merchant Shipping (Pollution) Act 2006

References

This article is based on a public domain Congressional Research Service report: Copeland, Claudia. [http://www.ncseonline.org/NLE/CRSreports/07Dec/RL32450.pdf "Cruise Ship Pollution: Background, Laws and Regulations, and Key Issues"] (Order Code RL32450). Congressional Research Service (Updated February 6, 2008).