The premise of the environmental groups ’ complaint is that EPA ’ s inaction harms aquatic ecosystems , with the principal allegations focused on ballast water discharges . The environmental groups allege that vessel pollution contributes to a range of environmental and public health problems , and that pollutants from vessels include aquatic invasive species , oil and grease , toxic chemicals , metals , plastics , and pathogens .
VGP Enforcement Up until about two years ago , EPA had brought only a handful of enforcement actions for VGP violations . The penalties for these violations ranged from letters of warning and de minimis monetary penalties for minor violations , to fines between $ 20,000 and $ 40,000 for more serious discharge violations .
In recent years , however , EPA has begun a targeted VGP enforcement campaign , particularly in Regions 6 , 9 , and 10 . 1 Although EPA has conducted vessel inspections for VGP compliance with the USCG during port state control inspections enforcement actions generally seem to begin with a close review of vessels ’ Notices of Intent , Annual Reports , and National Ballast Information Clearinghouse (“ NBIC ”) reports . Findings of self-reported violations in Annual
Reports or conflicting information in Annual Reports and NBIC reports inevitably trigger EPA to informally request additional information on VGP compliance issues , which in turn may lead to demands for significant penalties . EPA ’ s enforcement method has largely consisted of informal allegations followed by settlement negotiations regarding the alleged violations .
Some key areas where EPA has focused :
• Annual Comprehensive and Routine Inspections — Failures to conduct annual comprehensive or routine inspections must be included in each vessel ’ s Annual Report so they are easy for EPA to identify and assess penalties . The fact that the violations were self- reported has not resulted in a significant mitigation of penalties .
• Ballast Water Monitoring — This is of great interest to EPA . Failure to conduct the required monitoring for ballast water management systems is a common omission and must be reported . Key issues include annual calibration , functionality monitoring , and analytical sampling .
• Ballast Water Exchange — EPA has begun focusing on vessels managing ballast water by exchange in accordance with a compliance date extension issued by the USCG , considering this to be a VGP violation if any other VGP violations are present , seemingly disregarding the intent and history behind USCG extensions and EPA ’ s Enforcement Response Policy .
EPA is applying its penalty calculation policies very aggressively , resulting in high penalty demands for every violation type , substantially higher than in the first 10 + years of VGP enforcement . Every violation , even paperwork violations , is considered to have presented a risk to the marine environment .
Conclusion With EPA ’ s focus on VGP compliance and enforcement , as evidenced by its January Enforcement Alert , it is critical for companies to closely review VGP compliance for the vessels in their fleet and implement strict oversight and quality control , including audits , to ensure VGP requirements are complied with , crew are trained , and any deficiencies are promptly corrected . It is also important to ensure that all filings are accurate , including the Annual Reports filed in February for calendar year 2022 . p – 2023 BLANK ROME LLP
1 . Region 6 serves Arkansas , Louisiana , New Mexico , Oklahoma , and Texas ; Region 9 serves Arizona , California , Hawaii , Nevada , and the Pacific Islands ; and Region 10 serves Alaska , Idaho , Oregon , Washington , and 271 Native Tribes .
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