NAMEPA A NNUAL C ONFERENCE Jonathan K. Waldron October 29, 2014 - - PowerPoint PPT Presentation

UPDATE ON EMISSION CONTROL AREAS AND OTHER UPDATES

¡

¡

¡

• Jonathan K. Waldron

October 29, 2014

The information contained herein is abridged and summarized from numerous sources, the accuracy and completeness of which cannot be assured. This should not be construed as legal advice or opinion and is not a substitute for the advice of counsel.

NAMEPA ANNUAL CONFERENCE

2 ¡

EPA’s 2013 Vessel General Permit

§ Effective date December 19, 2013 § 27 discharges covered § Some key differences from 2008 VGP

1) Ballast water (numeric limits) 2) Oil-to-Sea Interfaces / Environmentally Acceptable Lubricants 3) Monitoring requirements for ballast water, bilge water, graywater and exhaust gas scrubber effluent

3 ¡

EPA’s 2013 Vessel General Permit

(cont.)

§ Some key differences (cont.)

4) Administrative improvements § Recordkeeping (electronic okay

• nboard)

§ Consolidation of reporting into one Annual Report (on line)

à Enforcement on the rise

à NOI requirements à Routine inspections (outside 3 miles) à Documentation

4 ¡

U.S. Ballast Water Management

• Mandatory ballast water management and reporting

– Applies to vessels operating in U.S. waters with ballast tanks – Civil and criminal penalties for non-compliance

• Coast Guard Final Rule (March 2012) – Options:
• Install and operate a USCG type-approved BWMS on a phased-in

schedule

• Use only water from the U.S. public water system
• Do not discharge ballast water in U.S. waters
• Discharge to a shore-based treatment facility
• Complete BWE at least 200 nm from shore until required to have

BWMS

• Alternate Management System or Extension

5 ¡

BWM ¡Requirements ¡Comparison ¡ Coast ¡Guard ¡– ¡EPA ¡VGP ¡

Requirement USCG EPA VGP

Discharge Standard IMO IMO BWMS Approval USCG Type approval None (BAT) BWMS Performance Testing 46 CFR 162.060 None BWMS Installation – New Vessels Keel laid after 1 Dec 2013: Upon Delivery Same as USCG BWMS Installation – Existing Vessels First drydocking after: <1,500 m3……….2016 1,500 -5,000 m3…2014 >5,000 m3……….2016 Same as USCG

Extensions Yes No

6 ¡

U.S. ¡Coast ¡Guard ¡/ ¡EPA

¡ ¡

§ Coast Guard inspects / EPA enforces

§ NEW Coast Guard Job Aid for VGP Inspections on July 15, 2014

§ When deficiencies discovered:

§ Focus will be on record keeping § Encourage immediate corrective action § Entered into MISLE, which is available to EPA for review and enforcement § Penalties issued by EPA

7 ¡

So, what is a company to do?

§ The Conundrum

§ No Type-Approved Systems or Practical Alternatives § USCG Extension Letter

§ Now until January 1, 2017

§ EPA “Low Enforcement Priority” Letter § Non enforcement ≠ Compliance

§ Reporting violations

§ Implications

§ Non-compliance § Public filings § Enforcement § Citizen Suits

Ballast Water Conundrum

8 ¡

Could Congress Actually Solve the Problem?

§ Bills in House and Senate

§ S. 2094 (33 co-sponsors) § H.R. 5609 (11 co-sponsors) à Vessel Incidental Discharge Acts

§ Bills have bipartisan support § Politics, politics, politics

§ Congress in recess for elections § Will Congress get to it in the “Lame Duck” session? § California challenge § Do-Over in 2015

H.R. 5609 will replace the current dysfunctional regulatory system in which two federal agencies and more than two dozen states regulate vessel discharges in

• verlapping and sometimes

contradictory ways…

AWO President & CEO Tom Allegretti.

9 ¡

Update on Alternative Management Systems (AMS)/Type Approval

§ 40+ AMS systems approved § No USCG Type-Approvals yet (none close) § Basis for USCG Extensions:

§ Basis for extension: CG type approved BWMS, shore facility, U.S. public water supply, or retention in U.S. waters are not available or practicable. § Extensions for minimum time, 1-2 years, but can be revisited

10 ¡

10

North American Emission Control Area

• Went into effect August 1, 2012 and encompasses most of US and

Canada out to 200 nautical miles.

§ Written procedures for fuel switching § Recordkeeping requirements

• Per MARPOL, vessels required to use fuel with a sulfur content 1.00%
• r less.
• On January 1, 2015, sulfur limit reduced to 0.10%.

11 ¡

North American ECA (cont.)

• Guidance
• EPA Interim Guidance on Fuel Oil Non-Availability
• Notification to EPA and Flag State
• Fuel Oil Non-Availability Reports
• Coast Guard Policy Letter, ECA Job Aid, FAQS

§ Enforcement

• MOU between EPA and Coast Guard
• EPA Subpoenas for not using compliant fuel
• Most vessels submitting FONARs are coming from Asia/Australia
• Trades calling for strict enforcement of .1% limit
• Trident Alliance – 17 members, 7% of global fuel consumption

§ Notices of Protest

§ When company sampling exceeds 1%

12 ¡

North American ECA (cont.)

§ Annex VI Detentions

1) Vessel did not utilize compliant fuel and it was available onboard (Feb ‘13 in New Orleans) 2/3) Vessels operating in ECA without compliant fuel and Masters could not provide documentation that efforts were made to buy compliant fuel and no notifications made (Oct ‘13 in Baltimore; Dec ’13 in Delaware) à à 18% of detentions for environmental issues

"It's better to tell us first, than have us discover it later.“

• CDR Ryan Allain, USCG

13 ¡

U.S. Caribbean Emission Control Area

§ July 15, 2011 IMO designated waters around Puerto Rico and the U.S. Virgin Islands as an ECA. § The area includes waters adjacent to these islands up to roughly 50 nautical miles from the territorial sea baselines

14 ¡

U.S. Caribbean Emission Control Area (cont.)

§ Expected to reduce emissions of NOx by 27 %, PM2.5 by 86 %, and SOx by 96%, below levels in 2020 absent the ECA § Effective Dates § January 1, 2014 – Use fuel will sulphur content 1.00% or less § January 1, 2015 – Reduced sulphur content to 0.10%

15 ¡

Marine Casualty Reporting

§

What must be reported in the navigable waters (12 miles)?

§

Grounding, allision, loss of propulsion/ maneuverability, unseaworthiness/fitness for service, death, injury requiring professional medical treatment, certain property damage, “significant harm to the environment” à Confusion as to whether certain marine casualties need to be reported à Confusion whether something is a casualty

16 ¡

Understanding Marine Casualties

§

Draft NVIC (guidance) (Jan 2014)

§ Goal is to provide guidance and clear policy as to the Coast Guard’s expectations to facilitate compliance

§ Key Steps:

§ Notification § Evaluation § Action

17 ¡

What , When and How?

§ Reports must be made immediately after addressing resultant safety concerns to the nearest Coast Guard Sector if the casualty occurred within 12 miles § The oral report must be followed by a written report a "Report of Marine Accident, Injury or Death" (CG-2692) Form within 5 days § If also a “Serious Marine Incident”, must do drug/alcohol testing

18 ¡

Coast Guard Enforcement

§ Vessel experienced a failure of its main engine and did not report for several hours. § $75,000 penalty for failure to immediately report a marine casualty

• r provide notice of a

hazardous condition.

19 ¡

Congressional Action 2014

§ House Coast Guard & Maritime Transportation Act (H.R. 4005) §

Passed by the House April 1, 2014

§

Referred to Senate Committee on Commerce, Science & Transportation (stalled by cruise ship provisions)

à Key Provisions

–

Protection and Fair Treatment of Seafarers

–

Permanent exemption from EPA’s Vessel General Permit for small vessels and fishing vessels

–

National Maritime Strategy

–

Competition by US flag Vessels

§

Senate – S.2444 pending in Committee

§

Lame Duck?

20 ¡

Questions?

JONATHAN K. WALDRON PARTNER, CO-CHAIR MARITIME, INTERNATIONAL TRADE, & GOVERNMENT CONTRACTS PRACTICE GROUP BLANK ROME LLP 600 NEW HAMPSHIRE AVENUE, NW WASHINGTON, DC 20037 TEL: (202) 772-5927 WALDRON@BLANKROME.COM