Can I Go to Jail for Using Detergent on a Fuel Spill?

I was fueling my boat recently, and as the fuel level approached the top of the tank I stood by the vent with a bottle of dishwashing detergent to guard against over-filling. The attendant at the fuel dock scolded me for this and instead required me to hover over the vent with a big white absorbent pad. He said that using detergent to disperse a spill was a criminal act and that I could go to jail if the act was witnessed by the Coast Guard. This seems a bit extreme, especially considering that the detergent is so effective at breaking up the sheen on the water that is caused by spilled diesel fuel. Can you clear this up?

Boaters throughout the world are subject to a long list of regulations concerning the discharge of oil and other waste into state, local and international waters — and some of these regulations do, in fact, carry criminal penalties for violation.

We should first note that the application of a detergent to an oil slick disperses the oil, but it does not remove the oil from the water. It essentially acts as a temporary aesthetic remedy, and as such, the Coast Guard will probably view the application of detergent to an oil slick as an attempt to cover up or hide the event, which may worsen the penalties levied against the offender.

Internationally, the most significant body of law relating to pollution at sea is the International Treaty to Prevent Pollution from Ships, otherwise known as MARPOL. This treaty went into effect in its current form in 1983, and it includes strict regulations that are outlined in six technical “annexes.” Each annex is drafted to combat a particular class of pollutants, including oil, sewage, garbage and hazardous chemicals. Recreational vessels should be particularly concerned with MARPOL Annex I (dealing with oil pollution) and Annex V (dealing with garbage).

In this country, the most significant regulations relating to oil pollution are found in the Oil Pollution Act of 1990 (OPA 90) and the Federal Water Pollution Control Act (also known as the Clean Water Act). OPA 90 was enacted in the wake of the Exxon Valdez oil spill in Alaska — and, among other provisions, it requires the reporting of oil spills to the National Response Center (nrc.uscg.mil/nrchp.html) and to the Coast Guard. Under OPA 90, any oil or fuel discharge that “creates a sheen or emulsion” on the surface of the water is considered a spill.

MARPOL, OPA 90 and the Clean Water Act all include criminal penalties for violation of their respective provisions. In the case of a large oil spill from a commercial ship, these penalties may include millions of dollars in fines assessed against the vessel owners. The fines against a recreational vessel for a spill at a fuel dock will be less than the amount levied against a commercial ship, but they will be painful, nonetheless.

Regardless of the size of the spill, the criminal penalties for an oil spill are usually limited to monetary fines — but violators have often been sentenced to jail time if the spill is found to be intentional, or if the violator initiates a cover-up, lies to investigators, falsifies documents or otherwise obstructs the investigation. The circumstance described by our reader involving the use of detergent to disperse an oil slick may, in fact, be deemed an attempt to cover up the incident, and under those circumstances, a federal prosecutor may seek severe criminal penalties.

The stakes for criminal prosecution were increased recently after the 901-foot container ship Cosco Busan struck one of the towers of the San Francisco/Oakland Bay Bridge in 2007. The incident left a 212-foot-long gash in the port side of the ship, rupturing two of the fuel tanks and spilling more than 53,000 gallons of fuel oil into San Francisco Bay.

At the time of the incident, the vessel was being piloted by San Francisco Bay Pilot John Cota, who eventually pled guilty to causing the death of birds subject to the Migratory Bird Treaty Act and to negligently causing the discharge of oil into U.S. waters. In July 2009, Cota was sentenced to 10 months in prison.

Cota was given the prison sentence even though he had cooperated with the investigation and there were no allegations that this was anything other than a negligent act. The Migratory Bird Treaty Act is a 100-year-old law outlawing the hunting of protected birds, and it was never intended to apply to an accidental spill of fuel oil from a ship. The message here is that anyone who operates a boat with a fuel tank needs to take extra care in every aspect of vessel operation to avoid a spill.

The state of California also takes an aggressive stance against water pollution. The Department of Fish and Game (DFG) is usually the lead agency for these incidents, and its jurisdiction extends into areas that do not seem to be particularly egregious. DFG enforcement guidelines for water pollution are set forth in Fish and Game Code section 5650, and contaminants as commonplace as sawdust are outlawed under that statute.

DFG and local law enforcement agencies are expected to use a certain amount of restraint in the prosecution of these violations, but they are authorized to seek up to $25,000 in civil penalties, in the event that a prohibited substance is allowed to “pass into the waters of this state.”

The message here is that a boat owner must take extraordinary precautions to prevent the discharge of any kind of waste into the water. The fuel dock attendant in the scenario described by our reader was right on the mark.

The use of an absorbent pad during the fueling process will help to prevent a spill during the fueling process, but if a spill does occur, it must be reported — and it must be cleaned up (rather than dispersed with a detergent) immediately.