Date of publication: 14 September 2021
Sergey Nedelko, Attorney at Law, Head of Odesa Office
Source: Ports of Ukraine
Many remember the period from 2017 to 2019, when, taking advantage of the legislative gaps in the field of environmental control of ship ballast waters, the State Environmental Inspectorate of Ukraine, represented by “marine” inspectorates, processed dozens and hundreds of materials on administrative offenses for pollution of territorial and internal sea waters as a result of discharges of pollutants from the ship. This entailed a claim to the shipowner for tens of thousands of dollars and a ban on the ship’s departure from the port until compensation for damage.
Since July 2019, no high-profile and openly controversial incidents related to environmental control have been recorded in the ports, which is explained, first of all, by the adoption of the procedure for interaction between the USPA and the State Environmental Inspection when detecting cases of discharge of pollutants from a ship into the port water area (Resolution of the Cabinet of Ministers of Ukraine No. 670 2019) and the procedure for checking, taking water samples and conducting their analysis (Resolution of the Cabinet of Ministers of Ukraine No. 828 of 08.21.2019), as well as the elimination of “marine” State Environmental Inspections.
Over the past few weeks, SBU officers, together with the State Environmental Inspection and the State Border Service, have already conducted three searches on ships flying a foreign flag. Investigative actions were carried out within the framework of one criminal proceedings opened against unidentified officials of the SEI and USPA, who, allegedly, abusing their official position, did not carry out response measures to identify pollution from ships.
The pre-trial investigation is carried out under the procedural leadership of the Odesa Regional Prosecutor’s Office, on whose instructions, from June 2021, the Marine Guard detachment of the State Border Service is obliged to inform about all cases of pollution in the territorial sea and the exclusive (maritime) economic zone of Ukraine. Having fixed with the help of aerial photography signs of pollution in the form of spots on the water surface near the vessel, the maritime guard independently takes water samples from the side for laboratory analysis, which informs the State Environmental Inspection. It is noteworthy that such measures were carried out both in the territorial sea (12 nautical miles) and beyond (adjacent zone). Naturally, the results of the analysis show that the GDK of pollutants is exceeded, which serves as a formal basis for going to court and obtaining the authorization of the investigating judge to conduct a search on the ship. since it allegedly may contain objects, things and documents confirming the commission of a crime by the very unidentified officials of the SEI and the USPA. So, the circle has closed and ecologists get the desired access to the ship, with which they have had difficulties from time to time.
During the search, employees of the SBU and SEI, not having sufficient knowledge, experience and qualifications for this, check the ship’s documents, sewage tanks and cargo holds, take samples, question the crew and establish the fact of sea pollution. In fact, we are talking about the full implementation of environmental control measures on a ship flying a foreign flag, which, however, are authorized under the guise of an investigative action. Further, the classics of the genre – the calculation of the amount of losses, the claim to the shipowner in connection with the pollution of the sea by sewage and the decision to ban the ship’s exit in accordance with clause “d”, Part 2 of Art. 91 KTM of Ukraine.
MARPOL 73/78 regulations
According to Annex IV to MARPOL 73/78 (Regulations for the Prevention of Pollution by Sewage from Ships), sewage means: sewage and other waste from all types of toilets and urinals; drains from medical premises (dispensaries, infirmaries, etc.) through sinks, baths and scuppers located in such premises; drains from premises in which live animals are kept; or other wastewater, if mixed with the effluents listed above (rule 1).
Discharge into the sea of sewage is prohibited, except when the ship discharges crushed and disinfected sewage at a distance of more than three nautical miles from the nearest coast, using a system approved by the Administration in accordance with regulation 9.1.2 of this Annex, or discharges uncrushed and non-disinfected sewage at a distance of more than 12 nautical miles from the nearest coast, provided that in any case sewage water accumulated in holding tanks or sewage from premises containing live animals is not discharged instantly, but gradually, when the ship is en route, at a speed not less than four knots (rule 11).
Considering operational wastes, which include wash water for cleaning holds (paragraph 12, regulation 1, chapter 1 of annex V (Regulations for the prevention of pollution by garbage from ships), MARPOL 73/78 allows their discharge even within special areas ( including the Black Sea area) outside the 12-mile zone, but subject to certain conditions (rule 6) As a general rule, the dumping of operational waste in special areas is prohibited.
These provisions of MARPOL 73/78 are also implemented in national legislation, namely:
- Rules for the protection of internal sea waters and the territorial sea from pollution and pollution, approved by the Cabinet of Ministers of Ukraine No. 269 dated 02.29.1996 (Resolution No. 269);
- Regulations on the procedure for calculating the amount of compensation and payment of losses caused as a result of pollution from ships, ships and other floating equipment of territorial and internal sea waters of Ukraine, approved by order of the Ministry of Environmental Protection and Natural Resources of Ukraine No. 16 of 01.16.2021 (Order No. 16).
Who is endowed with control functions
According to MARPOL 73/78, Port State Control officials (inspectors) must monitor compliance with operational requirements for the prevention of wastewater and debris from ships.
The Maritime Administration is endowed with the functions of port state control (Port State Control) over the compliance of ships calling at the ports of Ukraine, the territorial sea and internal waters, regardless of their flag, to the safety standards of navigation and the prevention of environmental pollution from ships (clause 9, clause 4 of the Regulation on the Maritime Administration, approved by the Cabinet of Ministers of Ukraine dated 06.09.2017 No. 1095). It is the inspectors of Port State Control, having the necessary qualifications, who can check the ship’s documents and conclude whether there has been a discharge of pollutants from the ship or not. And if, as a result of the inspection of the vessel and the ship’s documents, data on such a discharge was obtained, the Maritime Administration is obliged to inform the State Environmental Inspection authorities about this in order to conduct an investigation and prosecute the perpetrators (clause 2.2.13, clause 2.
At the same time, the procedure for interaction between the USPA and the State Environmental Inspection applies only to cases of detecting pollution in the port water area, therefore, the algorithm of actions when detecting pollution outside the port water area remains unregulated. In order to check, take water samples and carry out their analysis, there is also no mention of the possibility of sampling outside the waters of ports or ships. Apparently, they decided to take advantage of these gaps in the legislation.
Final calculation of losses
According to clause 4 of Section 2 of Order No. 16, the volume of discharged domestic and fecal wastewater is determined on the basis of the results of instrumental and laboratory measurements or data from ship documents, to which ecologists gained access through a search.
The amount of losses caused as a result of pollution from ships of internal sea waters and the territorial sea is calculated by multiplying the amount of pollutants, according to the ship’s documents, by the rates approved by the Resolution of the Cabinet of Ministers dated 03.07.1995 No. 484 (Resolution No. 484). For every cubic meter of sewage discharged from the ship, the shipowner is forced to pay $ 140.
Thus, under the formal cover of conducting investigative actions, the employees of the State Environmental Inspection, with the assistance of the SBU and the State Border Service, actually carry out environmental control measures on the ship, gaining unhindered access to the ship’s mechanisms, premises and documents. Subsequently, the data of the ship’s documents form the basis for calculating losses for sea pollution for filing a claim. However, it is practically impossible to reliably and objectively establish whether there was actually pollution from the ship and deterioration of water quality after the fact.