“Are Port Reception Facilities Adequate?”

By:Joan M. BondareffCounsel, Blank Rome LLP

NAMEPANorfolk, VA

April 16, 2015

Background MARPOL Annexes I, II, III, IV, V, and VI Revisions to MARPOL Annex V (as of January 1, 2013) MEPC Guidance (2012) Coast Guard Regulations and Enforcement Actions

Issues What is adequate? What is reasonable? What solutions to provide sustainable uses of

waste?

Outline

April 16, 20152

Annex I Regulations for the Prevention of Pollution by Oil (entered into force 2 October 1983)

- Covers prevention of pollution by oil from operational measures as well as from accidental discharges.

Annex II Regulations for the Control of Pollution by Noxious Liquid Substances in Bulk (entered into force 2 October 1983)

- Details the discharge criteria and measures for the control of pollution by noxious liquid substances carried in bulk; some 250 substances were evaluated and included in the list appended to the Convention; the discharge of their residues is allowed only to reception facilities until certain concentrations and conditions (which vary with the category of substances) are complied with.

MARPOL and Annexes I-VI

April 16, 20153

- In any case, no discharge of residues containing noxious substances is permitted within 12 miles of the nearest land.

Annex III Prevention of Pollution by Harmful Substances Carried by Sea in Packaged Form (entered into force 1 July 1992)

- Contains general requirements for the issuing of detailed standards on packing, marking, labeling, documentation, stowage, quantity limitations, exceptions and notifications.

- For the purpose of this Annex, “harmful substances” are those substances which are identified as marine pollutants in the International Maritime Dangerous Goods Code (IMDG Code) or which meet the criteria in the Appendix of Annex III.

MARPOL and Annexes I-VI (cont’d)

April 16, 20154

Annex V Prevention of Pollution by Garbage from Ships (entered into force 31 December 1988)

- Deals with different types of garbage and specifies the distances from land and the manner in which they may be disposed of; the most important feature of the Annex is the complete ban imposed on the disposal into the sea of all forms of plastics.

Annex VI Prevention of Air Pollution from Ships (entered into force 19 May 2005)

- Sets limits on sulphur oxide and nitrogen oxide emissions from ship exhausts and prohibits deliberate emissions of ozone depleting substances; designated emission control areas set more stringent standards for SOx, NOx and particulate matter. A chapter adopted in 2011 covers mandatory technical and operational energy efficiency measures aimed at reducing greenhouse gas emissions from ships.

MARPOL and Annexes I-VI (cont’d)

April 16, 20155

MARPOL is implemented in the U.S. by the Act to Prevent Pollution from Ships (APPS)(33 U.S.C. §§ 1901-1915).

Coast Guard regulates APPS in 33 CFR Parts 151-158.

- U.S. has both port state and flag state controls.Port reception facilities are regulated in 33 CFR

Part 158.Civil and criminal penalties apply to violations of

APPS and Coast Guard regulations.

U.S. Implementation of MARPOL

April 16, 20156

Entered into force on December 31, 1988. Substantially revised Annex V entered into force

on January 1, 2013.New regime generally prohibits the discharge of

all garbage discharged into the sea from ships unless the discharge is expressly provided for.

- Exceptions for food waste, cargo residues and certain operational wastes not harmful to the marine environment, and carcasses of animals carried as cargo.

MARPOL Annex V – The Garbage Annex

April 16, 20157

Overview of the Discharge Provisions of Revised Annex V

April 16, 20158

“Each Party undertakes to ensure the provision of adequate facilities at port and terminals for the reception of garbage without causing undue delay to ships and according to the needs of ships using them.” (Reg. 8)

Parties whose coastline borders a special area must provide adequate reception facilities within the special area.

Establishes a system of port state control. (Reg. 9)

Revised Annex V Regulation on Reception Facilities and Recordkeeping

April 16, 20159

Every ship of 12 meters or more must display a placard in the crew’s language of the discharge requirements.

Every ship of 100 GT or more and fixed or floating platforms must carry a Garbage Management Plan.

Every ship of 400 GT or more and every fixed or floating platform must have a Garbage Record Book (in form provided) and

- Each discharge promptly recorded, and- Each completed page signed by the master of the ship.

Revised Annex V – Recordkeeping Requirements (Cont’d)

April 16, 201510

Ports or terminals must have “Certificate of Adequacy” in order to continue to receive oceangoing ships or certain fishing vessels (offload > 500K # of fish in a year).

COTP’s have the authority to issue, grant waivers, designate ports, and deny entry of ships to a port or terminal.

Any person may report to the local COTP that reception facilities are “inadequate.”

COA’s may be suspended if deficiencies recur or continued operations result in undue delay to ships.

Coast Guard Regulations and Penalties (33 CFR Part 158)

April 16, 201511

Must be capable of receiving APHIS regulated garbage NLT 24 hrs after notice is given (by the ship);

Must be capable of receiving medical or hazardous waste;

Does not interfere with port operations; Is conveniently located; Is situated so that garbage can not readily enter the

water; andHolds required federal, state, and local permits

under environmental and public health laws.

Adequate Reception Facilities: Garbage – Subpart D – §§ 158.400-420

April 16, 201512

IMO has a database of Port Reception Facilities (https://gisis.imo.org ).

Report on Norfolk facilities (only) lists 17 facilities for Annex I of MARPOL.

Norfolk uses a combination of shipyards, marine terminals and private industry to receive waste from ships entering the port.

How is Norfolk Meeting These Requirements?

April 16, 201513

No recorded actions against ports for inadequate PRFs.

Coast Guard has detained a number of foreign-flag ships in U.S. ports for illegally discharging garbage at sea and falsifying Garbage Record Books.

Ship captains who falsify records and condone – or order – garbage to be thrown overboard can be criminally charged, jailed, and their ship owners be assessed large penalties. (U.S. v. Taohim, 529 Fed. Appx. 969 (2013).

Enforcement Actions

April 16, 201514

U.S. ports appear to be doing a good job in providing PRFs.

Finding adequate PRFs in the Caribbean and other smaller ports appears to be a challenge.

As cruise ships are getting larger and post-Panamax ships begin to ply U.S. waters, ports will be challenged to increase PRFs to match the increase in offloaded garbage.

How Effective is the Current Legal Regime?

April 16, 201515

According to a recent study, the “Earth’s seas are teeming with more than 5 trillion bits of plastic.” (USA Today, 11 December 2014).

Report this year that China and Indonesia are the top offenders for millions of tons of plastic waste ending up as marine debris. (U.S. ranks #20) (WSJ, 12 February 2015).

The maritime industry is doing its part -- time to look to the land to reduce plastic waste ending up in the sea.

What Else Can Be Done to Keep Plastic Out of the Ocean?

April 16, 201516

The U.S. can be a model for other nations in the provision of adequate PRFs.

Intentional discharges of illegal waste from ships can lead to large penalties – and jail time.

Careful – and accurate – recordkeeping can minimize charges.

In the future, improved landside practices and new recycling and waste-to-energy plants can reduce plastic waste entering the ocean.

Conclusions

April 16, 201517

Questions?

Joan M. Bondareff, Esq.

Blank Rome LLP600 New Hampshire Avenue, NW

Washington, D.C. 20037Tel. (202) 772-5911

bondareff@blankrome.com