Pacific Maritime Magazine - Marine Business for the Operations Sector

By Chris Philips
Managing Editor 

Law or Not?

 

May 1, 2018



In late 2013 the State of Washington announced its intention to petition the EPA to declare all of Puget Sound a “No Discharge Zone” (NDZ). The plan would require vessel operators to keep black water in holding tanks and use pump out facilities, rather than their current US Coast Guard approved marine sanitation devices (MSD). The announcement was delivered to a room full of stakeholders made up of commercial vessel operators in the fishing, passenger and towing fields. Amy Jankowiak, with the Washington State Department of Ecology (Ecology), explained that the meeting was informational only – the decision had already been made by the state. This month, her plan goes into effect.

In July of 2016 the state submitted the NDZ petition, authored by the aforementioned Ms. Jankowiak, to the EPA. The petition claimed there were enough pump-out facilities to serve all the affected vessels.

During the comment period, from October 4th to November 30th, 2016, comments were received from 2,565 individuals, many of which were form letters including the same verbiage and spelling errors. Ecology also received comments from four agencies, 48 organizations, one tribe and one unclassified comment. Many individuals commented more than once. For example, the state counted six submissions supporting the measure from Marcie Keever, legal director of Friends of the Earth. The state also received 38,629 not otherwise classified form letters in support of the measure. We’re sure these, along with the six submitted personally by Ms. Keever, were instrumental in helping the EPA come to a decision.

Other commenters included the US Coast Guard, who noted that, from their experience, the economic and operational impacts on the affected vessels was underestimated by the state, and existing pumpout facilities were inadequate to serve in the much expanded capacity called for.

At this point, the EPA was tasked with studying the petition, confirming the existence of pump-out facilities and approving or declining the petition.

EPA administrator for Region X, Dennis McLerran, approved the petition on his last day on the job as he was walking out the door.

In early April of this year, the Washington State Department of Ecology issued a press release announcing that the Puget Sound No Discharge Zone would be effective as of May 10, 2018. After that date, previously acceptable USCG-approved Type 2 Marine Sanitation Devices will no longer be allowed, and all vessels will require onboard black water storage tanks, which will need to be pumped out at approved facilities.

The state says enforcement will be carried out by

“…Ecology, the United States Coast Guard, Washington State Department of Fish and Wildlife, and potentially, local law enforcement.” Neither the Coast Guard nor the Department of Fish and Wildlife were consulted, and at press time neither organization had a process in place to monitor or enforce the new plan.

Nevertheless, non-compliance with the rule may be punished by a fine of up to ten thousand dollars and or imprisonment in the county jail for up to three hundred sixty-four days. Each day may be deemed a separate and additional violation.

This might not be of immediate concern, as the state has granted a 5-year exemption to the rule for tugboats, commercial fishing vessels, small commercial passenger vessels, and National Oceanic and Atmospheric Administration (NOAA) research and survey vessels.

A reprieve, but maybe not.

As early as December 2016 the US Coast Guard noted that under 33 U.S. Code § 1322 - Marine sanitation devices, (f) (3) the state is not allowed to make exceptions for certain vessels (emphasis ours):

“...such State may completely prohibit the discharge from all vessels of any sewage, whether treated or not, into such waters…”

According to this federal law, the state may not selectively apply the No Discharge Zone to vessel types. Ty Keltner, a communications manager at Ecology, says “the rule applies to all vessels, with a delayed implementation for certain vessels for five years. Simply giving some vessel owners additional time to come into compliance with the prohibition is not considered an exemption.”

At press time, Ms. Jankokwiak, who wrote the petition, had not responded to our questions, nor had we heard from an attorney at Ecology to reinforce Mr. Keltner’s assertion.

On May 10th, the rule will go into effect. Will those vessels not in compliance be in violation of federal law, or will the State of Washington?

Stay tuned.

Chris can be reached at chris@pacmar.com

 
 

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