Ballast water next frontier for US environmental crime prosecutions
For the past 15 years or so, the United States has aggressively prosecuted foreign vessels, their owners and operators, and their crews for failing to comply with U.S. regulations for the control of oil discharges. Similar prosecutions, and the draconian sentences that result from them, are likely to begin occurring for the violation of U.S. ballast water management regulations.
The U.S. regulations for the control of oil discharges center on the requirement for vessels to process oil-contaminated bilge water through an oily water separator (OWS), and to only discharge processed bilge water when it has been cleaned of oil to 15 parts per million (ppm) or less. The separated oil waste is routed to a sludge tank for separate disposal.
As for recordkeeping, each oil tanker of 150 gross tons and above, and all ships of 400 gross tons and above other than an oil tanker, are required to maintain an Oil Record Book (ORB) Part I (Machinery Space Operations). All machinery space operations listed in the regulations — including the ballasting or cleaning of fuel oil tanks, the discharge of ballast containing an oily mixture or cleaning water from fuel oil tanks, the disposal of oil residue, and the discharge overboard or disposal otherwise of bilge water that has accumulated in machinery spaces — must be fully recorded without delay in the ORB. Each completed operation must be signed by the person or persons in charge of the operations concerned, and each completed page must be signed by the master or other person having charge of the ship. The ORB must be maintained aboard for not less than three years, and must be kept in such a place as to be readily available for inspection at all reasonable times.
While at a port or terminal under the jurisdiction of the United States, vessels are subject to inspection by the Coast Guard to, among other things:
• Determine that a valid International Oil Pollution Prevention (IOPP) certificate is on board, and that the condition of the ship and its equipment correspond substantially with the particulars of the IOPP certificate.
• Determine whether the ship has discharged any oil or oily mixtures in violation of the provisions of MARPOL 73/78 or U.S. regulations for the control of oil discharges.
The oil-related prosecutions of foreign vessels, their owners and operators, and their crews that have occurred have not been for actual oil pollution incidents, which occur in waters outside U.S. jurisdiction. Instead, those prosecutions have been based on fraudulent entries in ORBs, which are presented to U.S. authorities as a supposedly accurate record of machinery space operations involving the management of oil. The actual charges typically include a substantive violation (failure to “maintain” an ORB), plus some mixture of criminal charges including making a false statement, conspiracy, falsification of records and obstruction of justice. A typical sentence in such cases is epitomized by one handed down in November, in which the vessel’s operating company was required to pay a $3.2 million fine and complete a four-year term of probation, during which time vessels operated by the company are required to implement an environmental compliance plan, including inspections by an independent auditor.
The ballast water regulatory regime
U.S. ballast water regulations, which apply to all non-recreational vessels, U.S. and foreign, that are equipped with ballast tanks and operate in the waters of the United States, closely mirror those related to the control of oil discharges. Both sets of regulations are found in Title 33 Code of Federal Regulations, Part 151 (Vessels Carrying Oil, Noxious Liquid Substances, Garbage, Municipal or Commercial Waste, or Ballast Water). Though several approved methods exist for managing ballast water in U.S. waters, if the vessel owners elect to install a ballast water management (BWM) system, then, like with oil, ballast water has to be treated to meet numerical standards, those being for the amount or number of organisms that can exist in ballast water discharged into U.S. waters.
As for compliance and monitoring, U.S. regulations do not require vessels to maintain a ballast water record book, though the International Maritime Organization (IMO) Ballast Water Convention does. However, U.S. regulations do require the master, owner, operator, agent or person in charge of a vessel subject to the U.S. BWM regulations to submit a ballast water report to U.S. authorities no later than six hours after arrival at the port or place of destination, or prior to departure from that port or place of destination, whichever is earlier, that contains such items as:
• Ballast water information about the vessel, including the total ballast water capacity, total number of ballast water tanks, total volume of ballast water on board, total number of ballast water tanks in ballast, and the identification of ballast water management method used.
• Information on ballast water tanks that are to be discharged into the waters of the United States or to a reception facility, including for each tank discharged (i) the numerical designation, type and capacity of the ballast tank; (ii) the source of the ballast water, including date, location and volume; (iii) the intended date, starting location, ending location, volume and method of ballast water management.
Ballast water information submitted to U.S. authorities must contain a certificate of accurate information that includes the name and title of the individual (i.e., master, owner, operator, agent or person in charge) attesting to the accuracy of the information provided, and an attestation that the activities were in accordance with the vessel’s ballast water management plan.
In addition to the reporting requirements, U.S. regulations require the master, owner, operator, agent or person in charge of a vessel to maintain written or digital records, including reports made to U.S. authorities as described above. In addition to this substantive information, the records must also contain a certification of accurate information attesting to the accuracy of the records, and that all activities were done in accordance with the ship’s ballast water management plan.
When in waters subject to U.S. jurisdiction, the master, owner, operator, agent or person in charge of a vessel must provide the Coast Guard with access to the vessel in order to take samples of ballast water and sediment, examine documents and make other appropriate inquiries to assess the vessel’s compliance with U.S. ballast water management regulations. Additionally, the written or digital records required to be maintained aboard the vessel must be provided to the Coast Guard upon request.
Parallel regulatory regimes, parallel enforcement
A person who knowingly violates U.S. BWM regulations may be guilty of a Class C felony and be subject to criminal proceedings. According to secondary Coast Guard doctrine, cases falling into this category are expected to be rare and typically involve severe violations. However, as with oil-related prosecutions, the ballast water records and reports, which both require certificates of accuracy, provide fertile grounds for the types of prosecutions that have occurred in the oil discharge control realm. Specifically, any false statements in those records or reports may lead not only to a prosecution for failing to comply with U.S. regulations, but also to such charges as making a false statement, conspiracy, falsification of records and obstruction of justice. And there is no reason to believe that sentences handed down in such cases will materially differ from the very painful sanctions handed down in analogous oil discharge control cases.
Tips to avoid ballast water prosecutions
Potentially liable parties can avoid these types of prosecutions by ensuring that ballast water reports and records contain truthful information. It is better to honestly record ballast water transactions, even if the transaction itself does not comply with the vessel’s ballast water management plan or U.S. regulations, than to make and present fraudulent entries. U.S. regulations envision the occurrence of extraordinary circumstances (for example, the vessel’s BWM method becoming unexpectedly unavailable), and provide for “workarounds” to rectify, or at least minimize, negative consequences that may result. Better to utilize that process than attempt to hide issues and falsify records and reports.
An excellent tool available to owners and operators is an external audit of a vessel and/or company environmental program. Such proactive assessments are a cost-effective means of obtaining a snapshot of the effectiveness of the environmental compliance program, and can pay enormous dividends through the advance identification and correction of deficiencies that may, if uncorrected, subject the vessel, owner/operator and crew to the types of prosecutions that have occurred in the oil discharge control realm.
Andrew Norris, a retired Coast Guard captain, is a maritime legal and regulatory consultant and president of Tradewind Maritime Services Inc. He can be reached by email at email@example.com or by phone at (401) 871-7482.