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Ocean dumping is a topic that has been the subject of a good deal of public scrutiny over the last several years. Traditionally, when considering restrictions on ocean dumping in the United States the vessel operator may have customarily looked to the widely adopted provisions set forth in MARPOL 73/78. These guidelines, as drafted by the International Maritime Organization, were adopted and implemented in the United States in 1980 as part of the Act to Prevent Pollution from Ships (APPS). However, it may not be widely known that these guidelines are superseded by a more stringent regulatory scheme known as the Ocean Dumping Act (ODA) that became law in the United States in 1972 and for which the Environmental Protection Agency (EPA) has been an absentee enforcer.

Until recently, the EPA's involvement in marine matters has been limited but it appears that this may be changing. The Ocean Dumping Act, which "prohibits the transporting of any material from the United States for the purpose of dumping it into ocean waters", was enacted to establish a "no tolerance" policy prohibiting all ocean dumping of waste from the US and was crafted in such a way as to allow the EPA substantial latitude should it decide to police the regulation. Moreover, and perhaps most importantly, the language "for the purpose of" essentially gives the EPA the right to initiate legal action even if it is found that the vessel simply acted with an intention to dump waste material from the US, which itself constitutes a violation. In such cases the EPA has the discretion to commence civil or criminal litigation against violators and, at the extreme, punishment can result in the forfeiture of the vessel.

The ODA regulation is straightforward. Material prohibited from being dumped is classified as "waste". Material becomes waste when it no longer has a specific purpose in the transportation of goods. An illustrative example is the function of dunnage in the bracing of steel cargo. Wood used for this purpose is "dunnage" when being used to secure the steel in transit. If the steel is discharged in the US, then the dunnage no longer serves a useful purpose and becomes "waste" from the US. "Material" is defined as matter of any kind, including but not limited to solid waste, garbage and other waste.

The US Coast Guard Captain of the Ports offices have traditionally been tasked with enforcement of ocean dumping regulations; however, historically personnel in these offices have themselves seldom been aware of ODA regulations or their supervisory role in enforcing them. In fact, on at least one occasion a vessel requested clarification from the US Coast Guard concerning dumping of material permitted by Marpol 73/78 and received permission to do so, only to discover that such action would violate the Ocean Dumping Act. The EPA have investigated and later initiated proceedings against the vessel and its crew.

It is for this reason that when contemplating the dumping of waste from the US into ocean waters upon departure from a US port the Ocean Dumping Act should be given particular consideration. At a seminar in New York hosted by Trimar Defense Services, Gard's general correspondent for the US, and attended by the Chief of the Maritime Safety and Environmental Protection for the US Coast Guard Office of Maritime Law, it was established that the USCG Captains of the Ports are to be briefed as to the ODA regulations. The Coast Guard plans to submit a new regulation for commentary by the public, intended to make clear that the provisions found in the ODA will always take precedence and that the APPS will be revised and updated to reflect this change. Once the regulation is in place, the US Coast Guard will remain the agency charged with its enforcement. Nevertheless, the EPA retains the right to become involved in an investigation at any time and in a supervisory capacity.

It should be noted that the EPA has typically abstained from an active involvement in maritime matters, and that Marpol 73/78, Annex V, while permitting the overboard discharge of certain ship-generated waste, strongly recommends that disposal be undertaken at port reception facilities. Moreover, the EPA advises that a vessel forced to discharge waste as the result of an emergency situation endangering the vessel or the lives of the crew could become the subject of an investigation but will generally be absolved of liability. Because the US government has wide discretion in deciding whether or not to investigate, much less prosecute ("prosecutorial discretion") possible statutory violations and because the EPA only recently has shown interest in ODA in the context of blue water merchant shipping, it is difficult to categorically say to what situations and how vigorously the US Coast Guard or EPA may decide to apply the Ocean Dumping Act. It is hoped that the Coast Guard's expected publication of a new regulation and public comment thereafter will result in clarifying the intentions of the Coast Guard (and of the EPA).

The ODA regulation can be reviewed in its entirety at www4.law.cornell.edu/uscode by referring to Title 33, Sections 1401 to 1415.

 


Gard News is published quarterly by Gard Services AS, Arendal, Norway.