Clean Ships, Clean Ports, Clean Oceans: Controlling Garbage and Plastic Wastes at Sea (1995)
Chapter: Liability
ments issue permits related to matters such as waterfront construction and environmental regulations and could review or require port reception facilities as a condition of granting permits to ports. In addition, the U.S. Army Corps of Engineers routinely surveys and approves new docks and other port structures and could review the adequacy of port reception facilities as a part of this process. Review of port reception facilities as part of existing regulatory processes could help foster Annex V compliance without overburdening government agencies.
Liability
Since the late 1970s, the U.S. Congress has enacted several laws (e.g., RCRA and the Comprehensive Environmental Response, Compensation, and Liability Act [CERCLA] [P.L. 96-510], known as the "Superfund" law) that changed the legal responsibilities of those who create wastes and those who handle, transport, or treat wastes. The intent has been to remedy problems caused by old practices and to halt the use of ineffective practices. In fact, many practices have been abandoned under the new laws, and the government has supported substantial technical research to help develop new, more reliable techniques for handling wastes of all kinds.
The RCRA and CERCLA regimes also have gained public recognition because of their emphasis on punishing offenders and allocating liability for damages resulting from poor waste disposal practices. Legal precedents have been established in this arena that expand the range of entities that can be held accountable for a polluting event, well beyond the obvious candidates. In particular, the "cradle-to-grave" model that forms the basis of these regimes establishes legal liability for everyone who comes into contact with a waste material. Many businesses, concerned that they might become entangled unwittingly in the legal consequences of poor waste handling, have imposed strict audits and controls on their own waste generation and on the haulers who service their facilities.
It should be no great surprise, then, that fear of being saddled with liability for vessel waste handling is impeding implementation of Annex V (Pisani, 1989). Both public and private port operators are concerned that a more active role by public authorities in developing and overseeing a vessel garbage management system would expose ports to liability, particularly with regard to APHIS and hazardous wastes. As a result, vessel owners have been on their own in identifying and implementing waste disposal alternatives, at least in the United States. Those who drafted Annex V did not anticipate placing ports in legal jeopardy; nevertheless, this issue requires attention if ports are to become active players in the development of an effective vessel garbage management system.
In the judgment of the committee, concerns over port liability are not well justified at this stage. If port reception facilities were integrated into the national ISWMS, then much of the uncertainty over liability would be eliminated. Management systems for other forms of waste seem to work well and address liability
