ENVIRONMENTAL
REGULATION
OSV Bold, EPA’s ocean and coastal
monitoring vessel
Wave of change
For the first time, vessel discharges will be regulated under the US Clean Water Act,
unleashing complex issues, writes Mark Ruge.
hange is always hard. But
impending change in the form of
significant new environmental
requirements for the maritime
industry in America – including the
cruise industry – is likely to be particularly
difficult and, some would say, far more
difficult than it needs to be.
At issue is the expiration on December
19, 2008 of a longstanding regulation
exempting normal vessel discharges from
the
National
Pollutant
Discharge
Elimination System (NPDES) permit
requirements of the Clean Water Act (CWA).
The CWA, of course, is the primary US
law regulating certain discharges into water
bodies. It generally requires a permit before
these discharges can occur. For more than
C
three decades, since that exemption took
effect, the maritime industry, for the most
part, has not been required to have a permit
for these discharges because the
Environmental Protection Agency (EPA)
determined that they did not present any
substantial threat to the environment.
In 2006, however, a federal court in
California struck down the maritime
industry’s exemption from the CWA. The
Court of Appeals for the Ninth Circuit later
upheld the District Court’s decision. This
means that vessels must have permits for
routine vessel discharges, starting on
December 20, 2008.
Under any circumstances, this change is a
big one. The CWA is a complex environmental
regulatory regime with overlapping authority
between the states and the federal government.
Depending on the exact contours of the EPA’s
final permitting system, which is now under
development, vessel operators will need to
develop and put in place a new comprehensive
system; train their people; and execute
important and meaningful record-keeping
requirements. At the very least, the CWA
installs the EPA and state environmental
departments as significant new shipping
industry regulators and enforcers, a dramatic
change for an industry used to primarily
dealing with the Coast Guard.
The EPA finds itself in an unenviable
position. Since the NPDES program began
in the 1970s, EPA has only applied it to
stationary (i.e., non-mobile) dischargers like
power plants. Applying the program to tens
Vessels will need a permit
for routine discharges
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31
ENVIRONMENTAL
REGULATION
Miami-based cruise companies – no
strangers to environmental issues
of thousands of highly mobile vessels, each
with multiple discharge points, is a daunting
challenge, something EPA has made clear
from the beginning.
But the real kicker is the timing. Once the
exemption expires on December 19, a vessel
cannot discharge any pollutant without a
permit, but it cannot get a permit until the EPA
develops a vessel permit program. The federal
District Court in California provided a 27month grace period before the expiration of
the exemption. That is an extraordinarily short
period of time; a similar program for Defense
Department vessels has been in the works for
more than a decade. Faced with the Court’s
order, EPA worked aggressively and in 18
months drafted a proposed permitting rule and
published it for public comment, as required
by law. Not surprisingly, considering the
magnitude of the rule, the EPA received more
than 1,000 comments by the close of the
comment period on August 1, 2008.
Considering all these comments and
developing a permit program that works by
the December 19 deadline will be challenging.
Unfortunately, the expedited time frame
likely will leave the maritime industry with
virtually no time to understand the final
NPDES program, assimilate it, and put in
place the processes to comply. Under one
scenario, the new regulations could be
published in final form in mid-December and
go into effect almost immediately. The
maritime industry would have no choice but to
try to comply because the exemption would
expire on December 19.
Is it truly possible that one of the most
significant
maritime
regulatory
environmental programs of this generation
could be announced, applied and take effect
virtually overnight? Remarkably, the answer
appears to be yes.
There is one other interesting dynamic.
Under the circumstances, one might expect a
“gentle” enforcement period by government
regulators, taking into account the newness of
the regulation, the complexity of the new
program, and the expedited implementation
process. However, with the CWA comes
its citizen lawsuit provisions, which
allow individuals and organisations
(particularly
environmental
organisations) to bring direct lawsuits
against violators where the
government has not acted. That means that in
addition to worrying about enforcement
actions by the government, vessel operators
will face the possibility of being on the wrong
end of citizen suits by private individuals or
organisations. Certainly the cruise industry is
no stranger to environmental groups pressing
for environmental compliance through highprofile campaigns, lawsuits, legislative and
regulatory actions, and other means.
Environmental groups, no doubt, may
say that a rocky implementation process is a
small price to pay for the application of the
CWA to vessels. They might say that they
have little sympathy for vessel operators,
who have benefited from an exemption, now
declared illegal, for 30-plus years. And
environmental groups could very well opine
that the short implementation period will
focus the minds of the maritime industry.
But others will say that massive, historic
change on an expedited schedule with no
meaningful implementation period is the
surest way to make difficult change even
more difficult. ❒
Mark Ruge is a
partner at the
international law
firm K&L Gates.
He heads the
Public Policy and
Law practice
group, and also
represents a
range of maritime
interests on
vessel discharge
matters. He can be reached at
mark.ruge@klgates.com.
Shipping’s exemption from the CWA
struck down by California court
Seatrade Cruise Review September 2008
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