Cruise ships, commonly referred to as "floating cities," generate an astronomical amount of waste as they carry thousands of people from port to port. While cruise ships may contribute significantly to a local economy, they can also leave their mark by discharging a variety of pollutants into the local waters. In one day a cruise ship produces about 30,000 gallons of sewage, 255,000 gallons of gray water, and 37,000 gallons of oily bilge water. Unlike land-based cities, cruise ships are held to a much lower standard for discharge of effluent under the Clean Water Act (CWA). In fact, shore-based waste treatment facilities are required to not only meet much higher levels of sewage treatment, but must also monitor and report any discharges. Cruise ships, on the other hand, are exempted from obtaining a discharge permit and are permitted to discharge sewage after very little treatment. Additionally, gray water discharge, thought by some to present an even greater threat to public health than sewage, remains essentially unregulated by the United States Environmental Protection Agency (EPA). The loopholes currently present in existing law frustrate a state's ability to address the many environmental problems that can arise from cruise ship wastewater discharge. Both black water (sewage) and gray water can have adverse affects on human health and marine ecosystems. Human sewage, if not treated properly, can cause fecal coliform levels to sky rocket, resulting in states having to close beaches to swimming and shellfish beds to harvesting. A high level of fecal coliform, defined as "over 200 colonies/100 milliliters," indicates that the water is most likely contaminated with disease-producing organisms. Swimming or eating fish from such waters increases the likelihood of contracting diseases or illnesses such as hepatitis, dysentery, typhoid fever, gastroenteritis, and ear infections. Surprisingly, fecal coliform can also be found in gray water discharge, along with certain inorganic compounds and other hazardous substances. The CWA attempts to ameliorate these public health risks by requiring all vessels to install a Coast Guard certified Marine Sanitation Device (MSD). MSDs provide some protection against high levels of fecal coliform, but it falls short by not requiring stricter standards that mirror shore-based facilities. Moreover, it does not factor gray water into the equation. This shortfall is problematic, especially when existing federal regulations expressly exempt gray water discharge (and black water) from the National Pollutant Discharge Elimination System (NPDES) permit requirement-resulting in absolutely no regulation of gray water discharge. The preemptive language in section 312(f)(1) coupled with the regulations of 40 C.F.R. § 122.3(a) create a difficult situation for those coastal states wishing to impose discharge regulations on black water and gray water. State initiatives may face federal preemption issues. If a state passes legislation prohibiting or otherwise restricting discharge of this kind, it may be preempted because it conflicts with the express language found in the federal regulations. Courts have found that regulations pertaining to vessel design often warrant uniform national standards; therefore, state laws regulating vessel design or operation have been consistently held invalid. Case law, however, suggests that while vessel design is strictly controlled by the federal government, ocean pollutant discharges can fall within a state's police powers. Currently, it is not clear whether a state may adopt its own laws directed towards curtailing cruise ship discharge of waste water. Without adequate gray water regulations, cruise lines are bound to manipulate their disposal practices. This proved true in the 1990s when a number of cruise lines were caught using their gray water systems to dump illegal substances. In 1998, Royal Caribbean Cruises paid nine million dollars in fines for illegally disposing of oil and other hazardous pollutants through its ships' gray water system. The cruise line eventually entered into a plea agreement where it admitted that it had routinely discharged oil from its fleet of cruise ships. Studies also indicate that sewage regulations need improvements. Under section 312 of the CWA, cruise ships only have to install a Type II MSD. They are not required to test the discharge to make sure that it is meeting federal standards. Moreover, these large ships are not obligated to use the latest technologies. In fact, the Type H MSD used by most of the cruise ship industry has not been modified since 1976. With cruise ship traffic on the rise and passenger capacity increasing, it is not surprising that coastal states want to implement stricter standards regarding gray water and black water discharge. Now that the impacts of wastewater discharge are becoming more known, states have a legitimate interest in imposing regulations on these "floating cities." However, an important question remains: Will a state law regulating gray water and black water be preempted by federal regulations that exclude these types of discharges from having to obtain a CWA discharging permit? This comment concludes that the law in this area remains relatively unclear, making it difficult to predict whether a state statute will be preempted by the federal regulation 40 C.F.R. § 122.3(a) (excluding gray water and sewage from the NPDES requirement). Analysis begins with an overview of the Clean Water Act (section I), moves on to preemption (section III), and ends with the numerous options available to coastal states that are interested in curtailing cruise ship discharge (section IV).
Laura K. Welles,
Due To Loopholes In The Clean Water Act, What Can A State Do To Combat Cruise Ship Discharge Of Sewage And Gray Water?,
Ocean & Coastal L.J.
Available at: https://digitalcommons.mainelaw.maine.edu/oclj/vol9/iss1/4