COLUMN
GOVERNMENT UPDATE
About the Author
Holding Your Breath
By Dennis Bryant, Maritime Regulatory Consultant
Dennis L. Bryant, Maritime Regulatory Consulting, Gainesville, FL Tel 352 692 5493 Email: dennis.bryant@gmail.com
Air emissions from ships has been an issue since at least 1960, when the United States Supreme Court ruled that the city of Detroit, Mich., could prosecute the owner of a vessel engaged in interstate commerce for violation of a local smoke abatement ordinance. More recently, the state of Alaska imposed visible smoke emission restrictions on cruise ships calling in southeast Alaska ports and the state of California is imposing shore power (cold ironing) requirements on certain ships calling at certain ports in the state. On the international front, after years of negotiation, the International Maritime Organization (IMO) adopted a Protocol to its International Convention on the Prevention of Pollution from Ships (MARPOL Convention) to regulate certain air emissions from large ships engaged in international commerce. This Annex VI to the MARPOL Convention came into force for contracting party nations on May 19, 2005. After significant debate and controversy in this country, the U.S. Senate gave
its advice and consent to adoption of Annex VI and legislation was enacted to implement its provisions. Annex VI came into effect for the United States on January 8, 2009. For the United States, enforcement of Annex VI is divided between the U.S. Coast Guard and the Environmental Protection Agency (EPA). Only the EPA may issue Engine International Air Pollution Prevention (EIAPP) certificates to vessels of the United States. Only the Coast Guard may conduct random inspections of a ship (domestic or foreign) to verify compliance with Annex VI. The EPA may conduct a ship inspection when requested by the Coast Guard or when other information indicates that a violation has occurred. The EPA may, though, directly enforce requirements relating to shoreside reception facilities and to shoreside violations fuel oil quality requirements. With the exception of issuance of the EIAPP certificates, the Coast Guard has broad authority to enforce Annex VI and the US implementing statute. Neither agency, though, has promulgated implementing regulations.
The shared USCG/EPA jurisdiction relates to the vast majority of the substantive requirements of Annex VI. Restrictions are placed on use of ozone depleting substances, such as halons. Emissions of nitrogen oxides (NOx) by diesel engines with a power output of more than 130 kW installed (or which undergo a major conversion) on or after January 1, 2000 are regulated by means of a detailed NOx Technical Code. Emissions of sulfur oxides (SOx) are controlled by placing universal and area restrictions on amount of sulfur contained in fuel oil. Emissions of volatile organic compounds (VOCs) from tankers may be regulated at the option of each country that is party to Annex VI by means of requiring use of vapor control systems on such tankers and the terminals with which they transfer cargoes. Shipboard incinerators must be approved and operated in accordance with specific requirements. Governments of nations party to Annex VI undertake to ensure the provision of facilities adequate to meet the needs of ships calling at their ports for purposes of compliance with the ozone-depleting
substances and exhaust gas cleaning system requirements of the Annex. Those governments also undertake to ensure that fuel oil supplied in their ports meet the requirements of the Annex. Certain air emission restrictions also apply to platforms and drilling rigs operating above the seabed of nations party to Annex VI. The U.S. Coast Guard has, on an interim basis, issued guidance explaining its enforcement policy pending promulgation of binding regulations. The guidance establishes foreign-flag ship examination procedures to USCG port state control personnel. It provides that compliance verification should primarily focus on documentation, equipment certification/approval, and cursory materiel tests/evaluation. A vessel of 400 gross tons or more must have a valid International Air Pollution Prevention (IAPP) certificate or, if from a nation not party to Annex VI, a statement of voluntary compliance. For each diesel engine covered by Annex VI, there must be a valid IEAPP certificate. Random spot checks are to be conducted of: (1) the Record Book of Engine Parameters; (2) bunker delivery notes; (3) fuel samples; (4) documentation for exhaust gas cleaning systems (if fitted); (5) incinerator certification; (6) refrigeration equipment; (7) vapor emission control system (if fitted); and (8) reports of bunker delivery non-compliances (if any). A walk-through examination is to be done to form a general impression of the state of the engine room, machinery spaces, and the physical conditions of systems, equipment, and components. More detailed examinations are to be undertaken when there are "clear grounds" for believing that the condition of the ship or its equipment does not correspond substantially with the particulars of its certificates or is otherwise not in compliance with the requirements of Annex VI. In that event, control measures may be exercised over the ship in accordance with provisions of the MARPOL Convention. Control measures may also be undertaken when there are clear grounds for believing that the master or crew are not familiar with essential shipboard procedures relating to the prevention of air pollution from ships.
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