EPA Releases Penalty Policy for ECA Violations

The EPA released a penalty policy today for violations of the sulfur in fuel standard and related provisions for ships. The agency stated that this action reinforces its commitment to pursue violations of U.S. and international air pollution requirements by ships operating in the North American and U.S. Caribbean Sea Emissions Control Areas.

The policy applies to violations of new international standards for sulfur emissions from ships that went into effect on Jan. 1, 2015, and violations under the previous standards.

This policy is intended to deter potential violators, ensure that the EPA assesses fair and equitable penalties and allow for the swift resolution of claims arising from noncompliance. EPA stated it is committed to enforcing marine emission standards to help prevent dangerous air pollution from harming public health in American communities.

According to an EPA memorandum, it may assess a civil penalty of $25,000 per violation, per day. “Civil penalties will be calculated “taking into account the nature, circumstances, extent, and gravity of the prohibited acts committed and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and other matters as justice may require.”

The memorandum states that the penalty policy was developed primarily to address violations of the fuel sulfur standard as it applies to the U.S. portion of the ECAs, but said that a ship burning non-compliant fuel may also be in violation of other requirements of MARPOL Annex VI. For example, ships are required to maintain a written procedure showing how the fuel oil change-over is to be done, and a log recording change-over details, including recording certain measurements in fuel tanks prior to the entry into, or commenced after exit from an ECA.

Any ship that does not use compliant fuel in an ECA may have also failed to establish and/or follow a change-over procedure, and/or make and record measurements required. Regulations require ships to receive and maintain bunker delivery notes for a period of three years after the fuel oil has been delivered onboard.

Ships are also required to maintain a representative sample of the fuel oil delivered to the ship for a period of twelve months from the time of delivery.

Each failure, on each day it occurred, will be considered a separate violation. The EPA may calculate penalties for violations of regulations other than those covered by this policy on a case-by-case basis, may amend this policy, or may create a separate penalty. This penalty policy will be used to calculate civil penalties in negotiated settlements. It is not intended to and does not control the penalty amount requested in a case where a complaint has been filed. It is the EPA’s policy in such cases to assert a claim for up to the maximum penalty allowable. Therefore, after a complaint has been filed, use of this penalty policy is limited to negotiated settlements, according to the EPA.

According to the memorandum, the procedures set out in this penalty policy are intended solely for the guidance of government personnel. Such procedures are not intended to create substantive or procedural rights enforceable by any party in litigation with the United States. The Agency stated that it reserves the right to act at variance with this policy and to change it at any time. This Penalty Policy is effective immediately with respect to all cases in which the first penalty offer has not yet been transmitted to the alleged violator.



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