Lake Ontario Waterkeeper comments on Great Lakes Dry Cargo Discharge Study
Note: The offical submission is available for download here.
Lake Ontario Waterkeeper submits this comment pursuant to the Environmental Impact Statement comment period posted on the Federal Register on March 9, 2006 under the National Environmental Assessment Act.
Background
The US Coast Guard is inviting comment on whether or not the 1997 Interim Enforcement Policy (“IEP�) should be adopted as permanent regulations. The Interim Enforcement Policy on the incidental discharge of cargo residues represents a very lenient enforcement of American environmental statutes.
There is growing concern in Canada about the role of cargo discharge in the Great Lakes. Lake Ontario Waterkeeper and other environmental groups in Canada are very upset about cargo residue discharge. Cargo residue discharge is illegal in Canada under a number of federal and provincial statutes, and contrary to the provisions of the Great Lakes Water Quality Agreement. The conclusions in the 2003 USGC study that the proposed regulation would bring the US into compliance with Canadian laws and the Great Lakes Water Quality Agreement is incorrect.
The amounts of cargo discharge discussed in the working group paper and the USCG studies are very large. The 2004 USCG study estimates that in the single 04-05 shipping season, US-flag dry bulk carriers alone discharged 653,000 lbs of iron ore, 219,000 lbs of coal, 228,000 lbs of limestone and 11,300 lbs of other material into the Great Lakes. In 1999 the US National Oceanic Atmospheric Administration estimated that together, Canadian and US shipping companies pump an estimated 2,500 tons of cargo residue into the lakes each year. These estimates are very conservative and based on incomplete reporting. A recent article in This Magazine quotes a former Canada Steamship Lines engineer who estimated the total discharge at 20 tons of discharge per average trip. The USCG acknowledges that these discharges have been going on for the past 75 years and the total accumulation on lake bottom and the harm to fish habitat and water quality is unknown. Many of the substances discharged are deleterious to fish habitat in the Great Lakes. These lakes have been treated like a garbage dump for hazardous refuse for three quarters of a century.
Executive Summary
Lake Ontario Waterkeeper recommends that the U.S. Coast Guard adopt the alternative of allowing the IEP to expire and enforcing all applicable laws on the following grounds:
1. The proposed regulation does not satisfy the obligations of the US under the Great Lakes Water Quality Agreement (“GLWQA�).
2. The proposed regulation is premature in light of the scientific uncertainty underlying the cumulative and long-term effects of cargo sweeping in the great lakes.
Lake Ontario Waterkeeper recommends that the proposed alternative of allowing the IEP to terminate on September 30, 2008 (or sooner) be followed, after which time the USCG enforce all applicable laws.
1. The proposed regulation does not satisfy the obligations of the US under the Great Lakes Water Quality Agreement
The discharge of cargo residue into the Great Lakes is illegal in Canada
Cargo sweeping is illegal in the Canadian portions of the Great Lakes under at least two federal and two provincial statutes. Cargo sweeping is contrary to s.36(1)(a) of the federal Fisheries Act which reads:
36. (1) No one shall (a) throw overboard ballast, coal ashes, stones or other prejudicial or deleterious substances in any river, harbour or roadstead, or in any water where fishing is carried on;
This section covers all cargo sweepings of deleterious substances like limestone, coal and iron ore, and covers all Canadian fisheries waters including all the internal freshwaters of Canada. Under s.40 of the Fisheries Act the discharge of cargo residue is punishable with a fine up to one million dollars:
40. (2) Every person who contravenes subsection 36(1) or (3) is guilty of (a) an offence punishable on summary conviction and liable, for a first offence, to a fine not exceeding three hundred thousand dollars and, for any subsequent offence, to a fine not exceeding three hundred thousand dollars or to imprisonment for a term not exceeding six months, or to both; or (b) an indictable offence and liable, for a first offence, to a fine not exceeding one million dollars and, for any subsequent offence, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding three years, or to both.
There is no equivalent of the USCG interim enforcement policy in Canada that in any way modifies the applicability of this act to cargo sweepings.
The Canada Shipping Act pollution prevention regulations also make it illegal to discharge cargo residue in Canada. Section 4 of the Canada Shipping Act regulation C.R.C., c.1458 reads:
4.(1) Subject to section 5, no ship shall discharge a pollutant listed in Schedule I into any of the following waters: (a) Canadian waters south of the 60th parallel of north latitude;
(2) Subject to section 5, no person shall discharge or permit the discharge of a pollutant listed in Schedule I from a ship into any of the waters described in paragraphs (1)(a) to (c).
This section clearly prohibits the discharge of pollutants into the Great Lakes. Section 4 is qualified only by s.5. Section 5 permits discharges in emergencies only:
5.(1) A pollutant listed in Schedule I may be discharged from a ship into any of the waters described in paragraphs 4(1)(a) to (c) if
(a) the discharge is necessary for the purpose of saving lives or preventing the immediate loss of the ship; or
(b) the discharge occurs as a result of an accident of navigation in which the ship or its equipment is damaged, unless the accident occurs as a result of an action that is outside the ordinary practice of seafarers.
The pollutants listed in Schedule I of the CSA include mercury and chlorine, which are found in coal. The Schedule also lists calcium oxide, phosphorus, nickel, and vanadium found in iron ore, along with many other substances found in materials included in the USCG study. Canada is currently examining proposed regulations that will discourage the accidental or operational discharge of ship pollution under the Canada Shipping Act. The proposed Canadian regulations will not impact the overall compliance and enforcement mechanisms for the prevention of pollution from ships. They also only relate to the provisions of the Canada Shipping Act and in no way exempt cargo residue from the Fisheries Act and other federal and provincial statutes.
Cargo sweeping is also illegal under provincial laws in Canada. The Ontario Public Lands Act reads:
27(1) No person shall deposit or cause to be deposited any material, substance or thing on public lands, whether or not the lands are covered with water or ice, except with the written consent of the Minister or an officer authorized by the Minister.
(3) A person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine of not more than $10,000 and to an additional fine of not more than $1,000 for each day that the material, substance or thing remained on the public lands.
The Ontario Environmental Protection Act also prohibits the dumping of industrial and operational waste in the Great Lakes, it reads:
25. In this Part,
“waste� includes ashes, garbage, refuse, domestic waste, industrial waste, or municipal refuse and such other materials as are designated in the regulations;
“waste disposal site� means, (a) any land upon, into, in or through which, or building or structure in which, waste is deposited, disposed of, handled, stored, transferred, treated or processed, and (b) any operation carried out or machinery or equipment used in connection with the depositing, disposal, handling, storage, transfer, treatment or processing referred to in clause (a)
27 (1) No person shall use, operate, establish, alter, enlarge or extend, (a) a waste management system; or (b) a waste disposal site, unless a certificate of approval or provisional certificate of approval therefor has been issued by the Director and except in accordance with any conditions set out in such certificate. R.S.O. 1990, c. E.19, s. 27.
(3.1) Despite subsection (1), no person shall use, operate, establish, alter, enlarge or extend a waste disposal site where waste is deposited in a lake. 2004, c. 6, s. 7 (1).
186 (1) Every person who contravenes this Act or the regulations is guilty of an offence.
187 (1) Every individual convicted of an offence under section 186, other than an offence described in subsection (3), is liable, (a) on a first conviction, for each day or part of a day on which the offence occurs or continues, to a fine of not more than $50,000; and (b) on each subsequent conviction, (i) for each day or part of a day on which the offence occurs or continues, to a fine of not more than $100,000, (ii) to imprisonment for a term of not more than one year, or (iii) to both such fine and imprisonment.
The claims in the 2003 USCG study (page 5-1), that the cargo discharge from ships of substances examined in the study are not prohibited under Canadian laws is in error. The claim that simply “minimizing� these discharges brings ships into compliance with Canadian law is also incorrect. These discharges are prohibited under Canadian laws.
Article VI of the Great Lakes Water Quality Agreement (“GLWQA�) requires that the parties develop compatible regulations for the control of discharges of vessel wastes. The USCG proposed regulation is not compatible with the Ontario Public Lands Act, the Ontario Environmental Protection Act, the Federal Fisheries Act or the Canada Shipping Act and is therefore counter to the harmonization provisions in Article VI.
The US Coast Guard mischaracterizes coal, iron ore and other substances as non-toxic and non-hazardous and non-garbage, contrary to the provisions of the GLWQA.
Under Annex V of the GLWQA all cargo discharges are considered “garbage�. Annex V reads:
"Garbage" means all kinds of victual, domestic, and operational wastes, excluding fresh fish and parts thereof generated during the normal operation of the ship and liable to be disposed of continually or periodically;
Annex V further requires that:
2. General Principles. Compatible regulations shall be adopted governing the discharge into the Great Lakes System of garbage, sewage, and waste water from vessels in accordance with the following principles: (a) The discharge of garbage shall be prohibited and made subject to appropriate penalties;
The applicable provisions of current US laws and Canadian laws attempt to comply with this provision of the GLWQA. The position of the USCG that enforcement of these laws is unnecessary to harmonize US and Canadian laws is manifestly incorrect. While at present, both Canadian and US laws comply with s.2(a) of Annex V, the proposed regulation would bring the US in total non-compliance with this part of the GLWQA by removing the prohibition against the discharge of operational wastes.
The USCG regulations fail to comply with the GLWQA provisions relating to ship capabilities.
Annex IV of the GLWQA requires prevention, not mitigation, of the discharge of hazardous substances from ships:
4. Hazardous Polluting Substances. The programs and measures to be adopted for the prevention of discharges of harmful quantities of hazardous polluting substances carried as cargo shall include: (a) Compatible regulations for the design, construction, and operation of vessels using as a guide the standards developed by the International Maritime Organizations (IM0), including the following additional requirements: (i) Each vessel shall have a suitable means of containing on board spills caused by loading or unloading operations; (ii) Each vessel shall have a capability of retaining on board wastes accumulated during vessel operation; (iii) Each vessel shall be capable of off-loading wastes retained to a reception facility; (iv) Each vessel shall be provided with a means for rapidly and safely stopping the flow during loading or unloading operations in the event of an emergency; and (v) Each vessel shall be provided with suitable lighting to adequately illuminate all cargo handling areas if the loading or unloading operations occur at night;
The definitions of “Hazardous Polluting Substances� are contained in Annex I of the GLWQA. This list includes numerous substances contained in the substances included in the USCG study, for example chromium, iron, mercury, nickel, zinc, and phosphorus.
This provision requires US laws to mandate that US-flag ships have “the capability of retaining on-board wastes accumulated during vessel operations� and the capability of “off-loading wastes retained to a reception facility�. The 2004 USCG study examined the possibility of requiring in-port disposal of cargo wastes. It concluded (at page 4-18) that this could not be done “in a timely fashion� and that it would cause expense and delays. The report also notes that the current generation of shipping fleets lacks the capability mandated by s.4(a)(iii) above.
The GLWQA mandates that proper disposal of operational wastes be required under US shipping and environmental laws. The 2004 USCG study concludes (at page 4-20) that total elimination of cargo discharge is beyond the purview of the current study. Although the USCG has not studied the possibility of proper disposal of these wastes it is proceeding to propose permanent regulations entrenching current non-compliant practices. USCG should be moving the shipping industry forward by studying possible improvements in the shipping industry. Instead, the proposed regulation encourages shipping companies to further pollute the already severely impacted Great Lakes and gives no incentive to invest in proper disposal.
2. The proposed regulation is premature in light of the scientific uncertainty underlying the cumulative and long-term effects of cargo sweeping in the Great Lakes.
The 1999 NOAA Technical Memorandum ERL GLERL-114 outlines a number of highly important issues related to the lack of knowledge of the environmental impact of cargo residue discharge in the great lakes. The working group clearly recommended that sensitive habitat and spawning areas should be protected from cargo discharge. They noted that in Lake Ontario the Mulcaster patch and Scotch bonnet shoals were particularly sensitive and the mile limit should be greater in their vicinity. The working group also pointed out to the USCG that the use of 3, 6 and 12 mile distances from shore criteria is "arbitrary" and is not based on any known environmental factors. These recommendations were made seven years ago, in 1999.Waterkeeper is dismayed to see that the USCG has done nothing to improve the IEP in light of these recommendations. The proposed regulation instead entrenches criteria for cargo discharge that are not evidence-based.
The proposal that arbitrary mile limits, not based on any known environmental science should be adopted as permanent regulations flies in the face of basic common sense. The proposed regulations also fly in the face of such important environmental protection doctrines as the precautionary principle.
The 2003 USCG study findings on environmental issues are premature when there is a critical lack of knowledge about the impact of these discharges on water quality and fish habitat.
Jennifer Nalbone from Great Lakes United made a number of comments that were published in the 2003 USCG report. Waterkeeper enthusiastically endorses all of her recommendations published in that report.
Conclusion
Lake Ontario Waterkeeper objects to the proposed regulations put forward by the USCG. The approach in the IEP is barely acceptable as an interim measure, yet the USCG has continued it for a decade. The USCG has already had a very long time to protect the shipping industry from feeling the full impact of its illegal activities. Now it is time to start protecting the environment.
Lake Ontario Waterkeeper recommends that the proposed alternative of allowing the IEP to terminate on September 30, 2008 (or sooner) be followed, after which time the USCG enforce all applicable laws.