What happened?
On July 17, 2019, several Ukrainian stakeholders announced that the Cabinet of Ministers of Ukraine adopted new Regulation of the interaction between the Ukrainian Sea Ports Authority (‘USPA’) and the State Environmental Inspectorate of Ukraine (‘SEIU’) in case of polluting Ukrainian sea waters from ships within the territory of the seaports. The announcements were followed by words of a reasonable expectation that the Regulation is one more step in the suppression of bribery and corruption flourishing under the auspices of environmental control. First Deputy Minister of Economic Development and Trade labeled it “a fight with pirates in uniforms” and tied it with the regulation limiting the State environmental inspectorate’s competence to conduct an examination of ships adopted in March 2019. Minister of Infrastructure of Ukraine expressed his hope that new rules will prevent abuse of power, restore the trust of shipowners and noted that the regulation was backed by business circles and professional associations.
Outline of the new procedure
As key government officials claim, the Regulation is aimed at delimitation of the field of competence between USPA and SEIU and prescribes for clear instructions for each of these authorities in case of pollution. Now the USPA is charged with the observation of seaports’ water areas and detection of evident signs of oil or other pollutants. The port authorities record alleged pollution with photo- or video camera and immediately notify the SEIU on the matter. At the same time, the USPA also takes samples of water within the port area to measure baseline indicators and ensures the measurement. In turn, the SEIU sends its inspector without delay and the latter extracts samples of water within the area of the alleged pollution and draws up a report thereof. The inspector arranges the examination of the extracted samples. If the pollution of water is established (as before, it is done by comparison of the water extracted in the polluted area with the water taken in the port area at large), seaport administration notifies the shipmaster (in writing), the shipping agent, the port master and the SEIU. Only then an inspector of the SEIU has a right to conduct an inspection of the ship (jointly with a representative of the USPA) and shall do so within two hours from the notification. The inspector extracts the samples of water from the ship (except for isolated ballast) and arranges their examination in a laboratory. The collection of the water is conducted in the presence of the shipmaster or their representative and the examination is performed only with regards to matters having caused the pollution. The results of the examination shall be reflected in a special report completed by the state inspector of the port and the copy thereof is served to the shipmaster and the SEIU. Finally, the SEIU calculates the damages of the pollution and sues the responsible therefor. Plus, all the expenses rendered during the procedure and liquidation of the pollution are due to be reimbursed by the responsible for the pollution.
Unanswered questions and expected outcomes
No matter how progressive the regulation is, certain issues remain unaddressed. Firstly, the regulation refers to old Rules on protection of internal seawaters and of the territorial sea of Ukraine in part of the collection of the samples for examination. However, the Rules themselves fail to elaborate on the issue which is explained in detail here. The same concerns the method of calculation of the alleged damages.
The principal achievement of the new regulation matches with its aim: to delimit the competence between multiple authorities in the seaports. Now it is clear the environmental inspectorate can operate only on the port authorities’ request. The next stage when the SEIU appears is the calculation of damages caused by the dully established pollution. Hence, the most important work during the procedure is entrusted to the port authorities and the State Service of Sea Transport. The other positive innovation is that the results of the ship inspection, of the examination of the water samples, shall be published on the websites of the SEIU and the USPA. Undoubtedly, it will shed a light on the questionable activity of the authorities operating in the ports.
As the key sponsors of the regulation expect, this will contribute to fighting with huge corruption schemes within the system of environmental control in Ukrainian seaports which result in significant expenses of the shipowners and harm the international reputation of Ukraine as a sea state.
Published: Lexology
Authors: Oleg Kachmar, Yevhenii Konovalov