USCG – Environmental Crimes Voluntary Disclosure Policy

The Coast Guard’s New Environmental Crimes Voluntary Disclosure Policy: Incentive for Compliance

Since 2002 ECM Maritime Services, LLC (ECM) has been involved in a variety of independent roles on a number of instances where the U.S. Department of Justice (DOJ) has pursued vessel owners, operators and/or managers for criminal prosecution of MARPOL violations.

Over the course of the last few years some of our clients have contacted us and requested ECM to conduct these same types of environmental audits in their shore side vessel operations office and/ or on board their vessels. These clients have used this audit process to assess their own compliance policy and procedures and improve upon what they currently have in place. In some instances ECM EUROPE has even assisted these clients in putting together their Environmental Management System (EMS) Manual to dovetail with their existing ISM Manual and/or Health, Safety & Quality Manual.

ECM has previously reported on the United States Coast Guard’s (USCG) aggressive examination of and resultant pursuit of MARPOL violations with respect to such offenses as, bypassing the oily water separator (OWS), misusing the OWS and improper recordings in the oil record book (ORB).

In such instances, the USCG in cooperation with the US DOJ have pursued such violations on a criminal basis resulting in fines, penalties, audit programs and probation periods.

Recently, on 14 November 2007, the United States Coast Guard issued its Environmental Crimes Voluntary Disclosure Policy (the “Policy”).  The Policy, patterned on the existing policies of the Department of Justice (“DOJ”) and the Environmental Protection Agency, may provide companies a mechanism to potentially avoid prosecution by establishing a dynamic “compliance management system”, and fostering a proactive atmosphere of discovery and reporting of non-compliances.  Specifically, if the conditions discussed below are met, the Coast Guard can award “Disclosure Credit” and exercise its enforcement discretion and forego reporting the violation to the DOJ for prosecution.  While the Policy is a positive development, it is not a panacea – the DOJ can still choose to prosecute environmental crimes cases without a referral from the Coast Guard.  In addition, the Coast Guard may still recommend the prosecution of individual managers or employees.

In those instances where a ship owner, operator and/or manager promptly and voluntarily reports a MARPOL violation to the USCG, the USCG will NOT recommend criminal prosecution of the company provided certain criteria are in place as follows:

  • The violation must be discovered AND reported, before the USCG and/or any other regulatory agency discovers the violation.
  • The violation is reported in writing within 21 days of discovery
  • The violation has not occurred previously on board the same vessel within the last 3 years or on board another vessel in the fleet within the last 5 years.

In addition to the above, the company reporting the violation to the USCG under the voluntary disclosure policy must already have in place the same processes, policies and procedures that would have been required to be put in place had the company been subject to an environmental compliance program (ECP) under an agreement with the US DOJ. That is:

  • A company environmental policy that clearly prohibits such violations
  • A clear-cut environmental management system that spells out for all shore side and
  • vessel staff the company’s environmental processes and procedures
  • An audit system which includes third party audits to monitor and police the company’s
  • practices and procedures in the field
  • Corrective actions that promptly address non conformities

The Shipping Industry Guidance on Environmental Compliance published by the International Chamber of Shipping (ICS) and the International Shipping Federation (ISF) fully details the type of environmental compliance management system that should be in place. It can be downloaded at www.marisec.org/environmental-compliance.

Conclusion

The formal establishment of the Environmental Crimes Voluntary Disclosure Policy is significant in that companies that value compliance, and particularly environmental compliance, and have a stringent compliance program in place, are now at an advantage. Advice of counsel should be sought to verify that the CMS meets the requirements of the Policy, and in advance of a disclosure, to confirm the disclosure meets the requirements of the Policy. This will help ensure that the company and its employees are protected to the maximum extent possible when disclosing potential environmental crimes to the Coast Guard.

ECM EUROPE has prepared and assisted various Shipping Companies in Europe in implementing an Environmental Management Systems/Compliance Program (EMS/CP) as required by the USCG / USDOJ. ECM EUROPE conducts office and vessels EMS/CP Audits on behalf of USCG/USDOJ under the instruction of ECM Maritime Services, LLC.

Consultancy assistance includes but not limited to:

  • Environmental Management System Gap Analysis
  • Development of the Environmental Management Compliance System (Manual and procedures)

Training & Familiarization for shore and shipboard personnel

We are available to assist you in achieving any and all of your environmental management goals/requirements. For further information and/or assistance, please contact Bruno Di Lascio at info@ecmeurope.net.

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