On 27 March 2019, the Cabinet of Ministers of Ukraine issued a complex regulation, amending several other governmental acts, with the aim to soften the regulatory burden and to improve the business climate in Ukraine overall. Among other things, the Ukrainian government substantially changed the rules governing the environmental control of ships in Ukrainian seaports, including the control of ship ballast waters.
How it was before and upcoming changes
The intention is to eliminate any prerequisites for bribery and corruption that the previous system created. Previously, an environmental inspection could apprehend and examine any ship on suspicion of polluting Ukrainian internal waters by any release from the ship. It was enough for a state inspector to claim that there are “evident signs” of pollution on the water surrounding the ship and it usually led to a long process of examination and thus to demurrage which cost tens of thousands of US dollars per day for shipowners. In other words, the system was vague and unclear, leaving shipowners subject to enormous discretion of the state authorities (for more details, see Detention of Ships in Ports of Ukraine for Reasons of Polluting Ukrainian Internal Waters by the Release of Ballast Waters: a few remarks on the new direction of the State Ecological Inspection activity). Now, the situation is supposed to change.
New rules of pollution control
1. First and foremost – examination of isolated ballast water is now gone, and no reasons whatsoever exist for an inspector to board a ship and to extract isolated ballast waters;
2. the inspection cannot examine any other ship waters until a special regulation governing the matter comes into force;
3. the procedure of examination of sea waters around the ship is aligned with International Convention MARPOL 73/78.
From ‘evident signs’ towards objective assessment
Now, state inspectors cannot claim anymore that seawater is polluted due to the existence of “evident floating pollutants”. The fact of pollution can now be established only after a comparison of the results of the examination of the water surrounding the ship with the background indicators of the seawater. Notably, only the administration of seaport can extract the seawater and assess these background indicators, not the state inspectors themselves.
Plus, a new annex was added to the Rules on protection of seawaters, which establishes new provisions regarding a release of oil remnants and oil-contaminated waters in the course of the ordinary functioning of the ship. This annex prescribed for conditions under which vessels up to 400 gross tones and vessels over 400 gross tones are allowed to dump these remnants during their course.
Limited powers of the State Environmental Inspection
Appropriate amendments were also made to the regulation governing the State Environmental Inspection of Ukraine. In particular, the inspection was deprived of its competence to approve any relocation of cargo between ships. In addition, it cannot conduct environmental control of ships and their cargo when the ships cross the Ukrainian border. Now, it can proceed only with a radiological assessment of ships and only upon an appropriate alert from the State Border Service.
New opportunities
These changes are meant to provide certainty regarding the power of the environmental inspection and thus to discourage any abuse thereof. The State Environmental Inspection cannot now examine ship waters until a special regulation governing the matter comes into force. Shipowners and crew members can now effectively resist any attempts of environmental inspectors to groundlessly claim ‘evident’ pollution of seawaters and to unlawfully detain the ship for the period of ‘examination’.
Authors: Oleg Kachmar, Yevhenii Konovalov