Environmental Law

Anatomy of an Act to Prevent Pollution from Ships Criminal Charge

By Walter James

In the last year, there have been a number of prosecutions under the Act to Prevent Pollution from Ships (?APPS?). What is the legal standard at play here? The statutory authority is set out at Title 33 of the United States Code, Sections 1901 through 1915. Under APPS Section

8: "It is unlawful to act in violation of the MARPOL Protocol, Annex IV to the Antarctic Protocol, this chapter, or the regulations issued thereunder. The Secretary shall cooperate with other parties to the MARPOL Protocol or to the Antarctic Protocol in the detection of violations and in enforcement of the MARPOL Protocol and Annex IV to the Antarctic Protocol. The Secretary shall use all appropriate and practical measures of detection and environmental monitoring, and shall establish adequate procedures for reporting violations and accumulating evidence." 33 U.S.C. § 1907(a).

That was as about as clear as mud for the land lover; however, MARPOL (short for Marine Pollution) is well known to the shipping industry. The APPS was enacted in 1980 to implement the 1973 International Convention for the Prevention of Pollution from Ships and the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships. Together, these two treaties (of which the United States is a signatory) are known as the MARPOL Protocol. APPS allows the enforcement of the MARPOL Protocol applicable to ships registered in the US or operating in US waters.

A principal source of water pollution in the shipping industry (and addressed by the MARPOL Protocol) is the oil sludge and oil-contaminated water generated by virtually all large ships. The normal operation of an ocean-going ship produces a significant quantity of oil sludge due to the processing of fuel oil and lubricating oil. In addition, the engineering machinery of virtually all ocean-going vessels produces large amounts of oily water that collects in a ship?s bilges and which must be discharged for the ship to remain seaworthy. The oil sludge and oil-contaminated bilge water are collected in tanks designed to hold the oily wastes for proper disposal.

The MARPOL Protocol and regulations implemented pursuant to APPS provided that only water containing no more than fifteen (15) parts of oil per million may be discharged directly into the sea. 33 C.F.R. §§ 151.10 (a)(5) and (b)(3); MARPOL Annex I, Req. 9(4). Oil-contaminated bilge water is supposed to be processed through a pollution-control device known as an ?oily water separator? which is to remove oil contamination from bilge water to produce water containing no more than fifteen (15) parts of oil per million parts of water. To insure that these oily wastes are properly processed and disposed of, the regulations implemented pursuant to APPS and the MARPOL Protocol provide that, for vessels of more than 400 gross tons, the person in charge of an operation involving the transfer or disposal of oily wastes must record every operation (without delay), and on a tank-to-tank basis, in a log known as an Oil Record Book. Every transfer or disposal of oily waste is required to be recorded in the Oil Record Book. 33 C.F.R. §§ 151.25(a), (d) and (h); MARPOL Annex I, Reg. 20.

The Coast Guard is authorized to conduct inspections to determine whether vessels in US waters are in compliance with APPS, MARPOL and other applicable federal regulations. In connection with these inspections, the Coast Guard is authorized to and does examine the vessel?s Oil Record Book to determine, among other things, whether the vessel had operable pollution prevention equipment, whether it posed a danger to US ports and waters, and whether the vessel had discharged oily waste in violation of the law. 33 C.F.R. §§ 151.23(a) (3) and 151.7.3(c). In conducting these inspections, the Coast Guard relies on the vessel?s Oil Record Book and statements of the crew to determine whether the vessel?s crew was properly handling the vessel?s oily waste. 33 C.F.R. § 151.23(c).

Under the APPS, "A person who knowingly violates the MARPOL Protocol, Annex IV to the Antarctic Protocol, this chapter, or the regulations issued thereunder commits a class D felony."

What is a knowing violation?  That is next.

More later.

As always, feel free to give me a call or e-mail me at walter.james@jamespllc.com.

WDJiii

Full post as published by Environmental Crimes Blog on September 27, 2007 (boomark / email).