USA

Environmental Crimes Involving the Oily Water Separator

"Tanker and motor vessels are everywhere along the U.S. coast. They are a starting point of our economy, providing goods and a steam of commerce into and out of the country."

The MARPOL Protocol ("MARPOL") is an international treaty implemented in the United States by the Act to Prevent Pollution fro Ships ("APPS"). 33 U.S.C. 1901 et seq. MARPOL sets forth the international standards for the maximum amount of oil to be discharged overboard from vessels. This standard is 15 parts per million ("PPM"). MARPOL Annex 1, Reg. 9(4), 33 C.E.R. 151.10(a)(5), 151.10(b)(3). MARPOL also requires vessels to have and maintain an oil sensing device, such as that found on an Oily Water Separator ("OWS"), to prevent the discharge of a mixture containing more than the legally permitted concentration of oil. MARPOL Annex 1, Reg. 16, 33 C.F.R. 151.10(a)(6), 151.10(b)(5). Typically, when such a sensor detects more than the allowable parts per million of oil, it redirects that effluent to a storage tank on board a vessel.

Engine room operations in marine vessels produce quantities of waste oil and sludge. Some of the waste oil, together with water and other liquids, accumulates in the bottom or "bilge" of the vessel. This waste liquid typically drains into the bilge wells, small compartments set into the bottom of the engine room. The bilge waste is then collected and run through various processes designed to separate the oil wastes from the water. These processes include settling tanks and the OWS. After passing through the OWS, bilge water containing less than fifteen parts per million of oil may be discharged overboard. MARPOL Annex 1, Reg. 9(4), 33 C.F.R.151.10(a), 151.10(b). Oil removed from the bilge waste, along with other waste oils from the ship, is stored in a sludge tank. Some ships burn the sludge in an incinerator on the ship. Oil contaminated bilge waste and other waste oils, including sludge, may be offloaded while the vessel is in port and properly disposed of on shore. MARPOL Annex 1, Reg. 9(6), 33 C.F.R. 151.10(f)(2).

"In theory, all of a vessel's discharges of wastewater should not have a concentration of oil greater than 15 PPM. However, OWS systems do not always work as designed and/ or not properly maintained. Whatever the reason, rather than holding onto the waste and disposing of it all onshore, which can be costly, ship personnel sometimes circumvent the OWS by way of a pipe fitted to discharge oily waste directly overboard -- thereby depositing the material directly into the sea, without separation, at oil concentrations likely over 15 PPM.

Under MARPOL and its implementing regulations promulgated under APPS, each oil tanker of 150 gross tons or more or non-tanker vessel of more than 400 gross tons must maintain a record known as an oil record book ("OLB"). Entries must be made In the ORB for certain engine room operations, including the disposal of oil residue or the discharge overboard or disposal otherwise of bilge water that has accumulated in machinery spaces. All accidental, emergency, or other exceptional discharges of bilge waste or oil must be recorded in the ORB, along with the reason for the discharge. Each of these engine room operations, including the overboard discharge of bilge waste, is required to be "fully recorded without delay in the oil record book". 33 C.F.R. 151.25(h).

As part of their compliance inspection, Coast Guard investigators examine the ORB. A falsified record book seeks to mislead the investigator and prevent the Coast Guard from identifying an illegal discharge and ultimately a potential source of pollution.

As a result, the United States often prosecutes these cases under 18 United States Code, Section 1001, which makes it a crime to make materially false statements and representations and to make and use materially false writings and documents, in a matter within the jurisdiction of an agency of the United States. That statute allows the United States to seek a fine and/ or imprisonment for no more than five years. The fines, as governed by the Alternative Fines Act, 18 U.S.C. 3571, authorize $250,000 per count for individuals for felonies and $500,000 per count for organizations (including owners and/ or operators of vessels) for felonies. Additionally, under APPS at 33 U.S.C. 1908(a), a knowing violation of MARPOL is also a crime. It is a Class D felony for any person who knowingly violates MARPOL and its corresponding regulations.