From the Archives: A Lack of Cruise Control?

The following article appeared in the Hawaii Island Journal in December of 2005. --ADM

A Lack of Cruise Control

Is Hawai’i’s new cruise ship law worse than the agreement that it replaced?

“In 1993, I was on a Royal Caribbean ship. The cruise employees all had pins that said, ‘Save the Waves’...” mused Ross Klein, sitting at a sidewalk café table in downtown Hilo. “But I would watch every night, having a drink at the bar, as they threw garbage off the stern of the ship.”

Klein, a sociologist who teaches at Memorial University of Newfoundland, has authored two books on the cruise ship industry: Cruise Ship Blues: The Underside of the Cruise Ship Industry, and the just-released Cruise Ship Squeeze: The New Pirates of the Seven Seas, both published by New Society Publishers, Gabriola Island, BC. He was in the islands last month to meet with various government officials and present a series of public addresses, sponsored by KAHEA, a coalition of environmentalist and native Hawaiian organizations that, among other things, actively promotes stronger environmental regulations for the cruise industry.

The night before his rendezvous with the Journal at Bear’s, Klein had given a public talk at a Sierra-Club-sponsored meeting in Kea’au. During that address, he had dropped a small bombshell: at a meeting with a state Department of Public Health official, he had learned the Northwest Cruise Ship Association was backing out of its Memorandum of Understanding with the State, in which the industry had agreed to limit its discharge of sewage and ash in coastal waters around the state.

At his meeting with the Journal, Klein produced a letter from NWCA President John Hansen to Gov. Linda Lingle. In the letter, Hansen claimed that Act 217, a new state law regulating cruise ships, had made the Memorandum of Understanding “redundant and unnecessary,” and that the industry would “transitioning out of the MOU as of December 31, 2005.”

But Klein contended that the terms of Act 217 were much weaker than those of the MOU. The MOU, for instance, had limited sewage and incinerator ash dumping by the big ships to waters four miles beyond the 100 fathom (600-foot) markers on depth charts of waters surrounding the Hawai’i Islands. Act 217 only prohibits such discharges within an area three miles off the coasts, opening some of the shallow waters around and between the islands -- areas also used by the states’ ocean recreation and fishing industries -- as potential dumping grounds.

Sewage in the Bank

Among these shallow coastal areas is the Penguin Bank, a long, broad shelf that extends over 20 miles southward and westward from the western tip of Molokai. The bank, shaped roughly like its namesake, is a traditional fishing ground, and is so shallow that, as marine biologist John Culliney writes in Islands in a Far Sea, “This whole broad extension of Molokai became dry land during the last Ice Age, easily doubling the size of Molokai proper.”

“In season,” Culliney notes, “its crest is often marked by a number of humpback whales.”

Klein’s Website, www.cruisejunkie.com, includes a page listing violations of the Hawai’i-NWCA Memorandum of Understanding in 2002-2003, first reported the Honolulu Advertiser on December 12, 2003. Among those violations were repeated wastewater discharges into the Penguin bank by ships belonging to Royal Caribbean Cruises Limited. On October 29 and November 2, 2002, the Royal Caribbean liner Radiance of the Seas reportedly discharged “blackwater” (treated sewage) and “graywater” (wastewater from laundries, dishwashers, bathing facilities, swimming pools, etc.) while traveling through the bank. Royal Caribbean’s Legend of the Seas did the same on November 27 and 30 and on December 2, 17 and 20, 2002, as well as on March 19 and April 5, 9, 23 and 24, 2003.

The Advertiser story stated that after these violations were reported, Royal Caribbean re-routed its ships to avoid Penguin Bank. But the incidents helped to fuel environmentalists’ calls for an actual state law regulating cruise ship pollution.

“The Cruise ships are not violating any state laws. THERE ARE NONE,” proclaimed one KAHEA pamphlet, which claimed that an average 3,000-passenger ship generated about 30,000 gallons of sewage and up to 255,000 gallons of graywater. The brochure also noted that the ships generated an average of 7,000 gallons of oily bilge water per day, and often discharged ballast water (water pumped into tanks to add weight at the base of the ships, stabilizing them in the water) that could release invasive marine species from elsewhere.

According to KAHEA Executive Director Cha Smith, the state’s waters host an average of about 16 cruise ships at any given time. “I think there are about 20 or so in the summer,” she adds, and notes, “It’s expected to even increase.”

In addition to wastewater effluents, the industry creates other pollutants as well. Smith equates the exhaust from a cruise ship’s diesel engines, idling in port, to the emissions of 10,000-12,000 cars. Solid wastes are often incinerated on board, creating more potential air pollution and contaminated ash. The MOU prohibits the burning of solid waste while the ships are in harbor.

“The MOU is a voluntary agreement,” the KAHEA brochure pointed out. “There is no mechanism for enforcement or requirement for compliance...Nor are any fees levied to cover the direct or indirect costs associated with this booming industry. There were no repercussions when the industry reported scores of violations in Hawai’i.”

Ironically, KAHEA and other environmental groups now find themselves arguing that the new state law regulating cruise ships may be even less effective than the MOU. The MOU and Act 217 appear to have equivalent requirements for fuel and air emissions. Klein points out that the MOU’s provisions for hazardous waste disposal are already “contained in federal legislation.” Smith notes that while Act 217 does have penalties for violations, it still essentially relies on voluntary reporting by the cruise ship companies themselves. And Act 217’s 3-mile limit gives it a much shorter reach than the MOU.

Because of that limit, the waste dumping that occurred in Penguin Bank would not be considered a violation under the new law. An industry representative pointed that fact out to the Journal as evidence that that the incidents weren’t that bad. Environmentalists point to it as evidence of how bad the law is.

“There’s zero incentive for the industry to enforce their own laws,” Smith contends. “There’s zero monitoring. The industry reports their own numbers. There’s no mechanism for the state to do onboard inspections. At the director’s discretion, they can request the reporting documents, but there’s no regular reporting schedule...

We need much stronger legislation.”

According to Tom Arizumi, who heads the State Department of Health’s Evironmental Management Division, the DOH was mandated by Act 217 to determine penalties for various violations of the law, and hopes to have to those penalty schedules in place by July of 2006. Until then, the state’s only recourse, in the case of a violation, is to go to court to seek “injunctive relief for them to stop the activities.

And what if a company was told to stop, and didn’t?

“Willful failure to comply with the injunction would infer criminal activity,” Arizumi replied.

Arizumi confirmed that the state would still be reliant on “self-reporting” by the industry to learn of any infractions, but he added “We can request the ship’s log from the cruise ship industry to verify their operational activities to ensure compliance with the statute. It’s a federal requirement to log all those things (discharges, etc.) in the ship’s log, and failure to do so is a federal violation.”

Federal Pre-Emption

Governer Linda Lingle allowed Act 217 to become law without her signature.

“The State of Hawaii presently regulates cruise ship discharges through a Memorandum of Understanding (MOU), which is more comprehensive than this legislation, protects a wider area, does not conflict with federal law, and allows for greater flexibility to adjust to changing environmental and industry conditions,” Lingle wrote, in a letter to the Senate.

In addition to the problem of limiting protections to three miles from shore, she wrote, the bill’s “blackwater” regulations were possibly pre-empted by federal standards already in place, and that “the bill requires the Department of Health to set fines by rules. However, HRS 342D-30 already establishes penalty provisions for pollution violations.”

She also pointed out that the bill failed to regulate “the primary source of water pollution from passenger vessels, which is treated wastewater.”

Klein notes that, while the cruise ship industry has touted its “advanced wastewater treatment systems,” the processed effluent from those systems is not exactly tapwater.

“They (industry spokespersons) argue that it is virtually safe,” Klein told the Journal, but noted that such effluent can still cause problems with “nutrient loading”—discharging organic matter that could cause algal blooms or other disruptions of ocean ecosystems. The treated effluent may also contain other contaminants such as metals and ammonia.

But Arizumi maintains that the federal laws prevent the state from doing anything about treated sewage discharges anyway. He told the Journal that according to the federal statutes, “States cannot ban discharges from ships that discharge waste that is treated by an approved marine sanitation device.”

Playing by Two Sets of Rules?

Charles Toguchi has a similar explanation for why the Act 217 only prohibits dumping within three miles of shore: the state couldn’t legally go any further.

“The state jurisdiction just goes out to three miles,” he told the Journal.

Toguchi heads Charles Toguchi and Associates, which lobbies for the Northwest CruiseShip Association in Hawai’i. At the end of Klein’s presentation at Kea’au, a Toguchi associate, Patrick Shaw, had stood up and offered his card to anyone who wanted to hear “the other side.”

The Journal took Shaw’s card and called him two days later. But after the first question—a request for an example of “ambiguity and operational confusion” that might result if the cruise industry didn’t terminate MOU—Shaw said that his boss should answer that, and ended the interview. Toguchi called the next day.

In answer to that first question, Toguchi gave no examples, but offered a sports analogy: “You can’t play a football game with two sets of rules. It was for that same reason that we wanted to transition out of that set of rules (the MOU), and put all our efforts into implementing the intent of the recent legislation.”

On the other hand, he said, the industry would continue “honor the spirit” of the MOU, and would continue to avoid some sensitive areas such the Penguin Bank and the Humpback Whale Sanctuary.

Apparently, then, cruise ships entering Hawaiian waters will be told to observe one set of rules, but also to observe the “spirit” of another set of rules that have officially been rejected.

Arizumi confirmed what Toguchi told the Journal.

“They told us that they would continue to volunteer to abide by the operational provisions of the MOU,” he said. They wouldn’t be discharging in the Penguin Banks or in the Marine Mammal Sanctuaries.

What the cruise lines wouldn’t be doing, he said, was filing annual compliance reports for the MOU.

“So if there are any violations, we just won’t know about it?” this reporter asked.

“That’s basically it,” Arizumi said.

Toguchi maintained that the industry’s record under the MOU was “excellent.” Asked about the violations reported in the Advertiser article, he replied that the Advertiser story was an example of “how facts can be stretched to make it seem like there were violations.” He called the incidents “infractions,” and noted that they all took place beyond the Act 217’s three-mile limit, so “many of these infractions would not have been violations.”

He added that the crews had thought it was okay to release the effluent because it was their usual rule to allow such releases if the ship was than 12 miles from shore. All the incidents, Toguchi said, had involved treated effluent.

“Not one gallon of raw sewage had been spilled by the industry in state waters since the implementation of the MOU,” he maintained.

He attributed the incidents cited in the Advertiser article to normal adjustment problems in the early days of the MOU. One incident, for instance, involved a ship incinerating solid waste while in port. Toguchi said the burning happened the day after the MOU took effect, and the captain simply hadn’t been notified yet.

Since then, we’ve had an excellent record,” Toguchi maintained. “I think we’ve had two or three (infractions) since that time.”

Arizumi said that under the MOU, only ”minor” infractions, mostly involving treated effluent, had been reported.

When informed of Toguchi’s statements, Klein was skeptical.

“If they planned to continue to respect the prohibition on discharges in Penguin Bank and the Whale Sanctuary, then I am sure they'd have said it in their letter to the Governor rather than risk the criticism they are now receiving,” he responded by e-mai. He speculated that the industry was backpedaling to avoid criticism.

“Interestingly, the Act specifically states (342D-H) that it does not prevent voluntary agreements (such as an MOU) that extend beyond the marine waters of the State (i.e., beyond 3 miles),” he noted. “Thus, there is no inconsistency between the Act and the MOU, unless one wants to adopt the lower standards permitted by the legislation.... As for putting all of their energies into implementing the Act, I really don't know what he means. Implementation means training staff not to be as cautious as they are currently expected to be.”

What the Crew Didn’t Know

Much of what Toguchi told the Journal almost eerily followed a model of the industry’s behavior that Klein had verbally sketched two days before, as he sat at the café table on Keawe St.

“I think very often when there are accidents and spills, it isn’t a corporate decision, but corporate decisions are not being translated to the staff in the engine rooms...” Klein had observed. “I would think the incentive to cover it up is greatest on the level of the ship.”

Asked how corporate management generally reacted to such a violation, he replied, “The corporate side will minimize it.”

As an example, he cited the case of the Crystal Harmony, which was permanently banned from Monterey bay. Www.cruisejunkie.com summarizes the incident thusly:“Crystal Harmony, Crystal Cruises. Reported in March 2003 that contrary to a written promise to not discharge in the Monterey Bay Marine Sanctuary, the ship discharged 36,000 gallons of treated bilge, treated sewage, and grey water. The company stated that it didn't report the discharge because it wasn't illegal—it only represented that they didn't keep their promise.”

In the case of the Crystal Harmony, Klein told the Journal, the captain and chief engineer knew about the promises not to dump in the bay, but “The company disclosed that the message hadn’t gotten transmitted to the people operating the systems.”

Klein also cites a 1999 article by New York Times reporter Douglas Frantz, who discovered that ships had “alternative piping” that would allow oily bilgewater to be dumped directly into the sea instead of going through a filtration system.

“Engineers reported that they received an end-of-the-year bonus if they came in under budget,” summarized Klein. “They saved $80,000 a year by not using filters.”

In 2002, Norwegian Cruise Lines pled guilty to dumping oily bilgewater directly into the sea from 1997 to 2000. The company was fined $1 million and ordered to perform $500,000 worth of community services. According to www.cruisejunkie.com, “The company was given a lenient sentence because it reported its practices to the Department of Justice.” Norwegian Cruise lines is the parent to NCL-America, whose Pride of Aloha and Pride of America currently offer interisland cruises in Hawai’i.

Cruisejunkie.com lists dozens of other examples of cruise ship environmental violations, including an incident in early 2005, when the Honolulu Advertiser reported that the Pride of Aloha had discharged about 70 tons of treated effluent into Honolulu Harbor. In March of this year, West Hawaii Today reported an incident in Kailua-Kona, when the numerous people witnessed “brown water” boiling up around Holland America’s Statendam, leaving a “brown mark” on the ship’s side, shortly before it left harbor. According to the WH-T article, State and Coast Guard officials denied any knowledge that effluent dumping had occurred in this case, and one Department of Health official suggested that the “brown water” may have been bottom muck stirred up by the ship’s engines, although water in the area was 130 feet deep.

Holland America is a subsidiary of Carnival Corporation, the line involved in the Penguin Bank incidents. The two companies have been cited elsewhere in numerous incidents involving bilgewater and effluent dumping, oil discharges, air pollution violations and falsification of records. In a Florida court in 2002, Carnival pled guilty to repeated oil discharge violations in exchange for a fine of $9 million and $9 million in community services.

Accidents and crimes happen in any industry. Toguchi and other cruise ship representatives argue that over all, their industry’s record is a good one. They contend that the violations recorded under the MOU pale in comparison with those of land based sewage plants such as Honolulu’s Sand Island facility. Environmentalists counter that that the land-based facilities aren’t operating on the honor system.

The activists generally seem to agree that stronger regulation of the industry is necessary. For them, the question becomes: how?

Learning What has Worked

Despite writing a book whose title calls the cruise industry “the New Pirates,” Klein maintains that he is neither anti-cruise ship nor an environmental lobbyist.

“KAHEA is a group that is advocating for change. I’m an academic. As soon as I become an advocate for one position only, it compromises my position as an academic.”

In addition to his two popular books, Klein as authored several more academic studies of the industry, including a major one for the Canadian government. His talk in Kea’au was framed as a report on the sociological history of the cruise ship protests. But he was also took his current audience’s interests into account. The value of the talk, he said, was that “it will give you insight...as to what has worked in the dealing with this industry.”

He related the stories of protests in Florida, California and Alaska. He talked about the industry’s efforts to “greenwash” its image and the methods it used to suppress critics, including himself. He discussed the relative merits of MOUs versus legislation, and found both to be lacking. Legislative and political routes, he said, were often unsuccessful because of the industry’s lobbying efforts. Court challenges, on the other hand, were often effective, as were “clear, strong grassroots movements,” such as the protests in Monterey that got the Crystal Harmony banned, or a shopkeepers’ strike that dissuaded a cruise ship from making an Alaska village its port of call.

“There are ways to make the smooth running of the shore excursions...quite difficult,” he noted. .

Klein’s analysis of how and when violations occurred may also suggest ways legislation might be made more effective. If violations and cover-ups originate on-ship, for instance, then effective legislation logically should provide for on-ship inspectors and create a funding method to pay for them. At the Kea’au meeting, Klein praised Alaska cruise ship legislation that set up enforceable standards, a monitoring program and a $1 per passenger tax to pay for testing and enforcement. But again, he noted that strong legislation such as Alaska’s was only possible with the “old style, hardcore grassroots” support.

KAHEA, the Sierra Club and other organizations are working to mobilize that support.

“I think in order to build that political will ... to adequately regulate this industry, legislators are going to need more examples of the problems that the cruise ships cause,” believes Smith. She also strongly supports a tough new federal cruise ship bill that has been introduced in Congress.

KAHEA has started a program called “Be the Eyes of the Ocean,” which supplies mail-in forms for reporting suspected cruise ship environmental violations. The forms are available at http://www.kahea.org/ocean/pdf/cruisereporting2.pdf, or by calling(808) 524-8220.

“Individuals whose documentation of dumping leads to fines against a cruise line may be eligible to receive half of any fine that is levied under the Act to Prevent Pollution from Ships,” announces a note at the bottom of the form, which cites one case where passengers videotaped plastic bags being dumped overboard and got to claim shares of the $250,000 fine that was collected as a result.

Ironically, perhaps the people most able to influence the industry’s behavior may not be those standing on the shore, but the passengers themselves, such as the couple who reported the plastic bag dumping -- or like Klein, the self-professed “cruise junkie.”

“I started as a cruise enthusiast...” he told the Journal. My wife and I were taking up to 50 days a year of cruises.”

But with all that shipboard time, he began to “see things like some of the labor problems... After about 200 days on cruise ships, I reached the point where I wanted to start writing about the topic.”

For him, it was not a matter of stopping the cruise industry, but of making it live up to its own PR.

“How can I impact the industry,” he asked, “so that I can go on a cruise ship and not have those moral and ethical dilemmas?”