Waste not, want not

On 1 January 2013, new MARPOLRegulations came into force with regard tothe disposal of garbage from ships at sea,largely prohibiting the practice. As a result,it will become common practice for ships tosend their garbage to shore-based receptionfacilities. MARPOL applies to ships via theirflag state, and port and terminals via thenational legislation.

This article first appeared in the March 2014 issue of Port Strategy and is reproduced with permission. www.portstrategy.comwww.portstrategy.com

MARPOL Annex V Regulations not only impacton what could be classed as ‘traditionalgarbage’, but also concern the issue of holdwashing water removal and discharge of ‘cargoresidues’; remains of cargo in wash water aredefined in the Regulations as ‘cargo residues’.This is likely to be a particularly important issuefor ports that operate in the bulk cargo trades,where hold cleaning between cargoes is a regularoccurrence, and where cargo residues do remainand large quantities of washing water can begenerated.

It is reasonably straightforward to definetraditional garbage but the issue of hold washingwater in particular needs further explanation. Thestarting point is to consider the nature of (1) thecargo carried; and (2) the hold cleaning chemicalsused, and determine if either the cargo itself orthe hold cleaning chemicals used are harmful tothe marine environment as defined in MARPOL.The Annex V guidance notes state that, if thecargo meets certain criteria listed in the UNGlobally Harmonized System for Classificationand Labelling of Chemicals, then the cargo isharmful to the marine environment.

In terms of the cargo itself, the shipper has anobligation to declare whether or not the cargo isharmful when providing the information requiredby section 4.2 of the IMSBC Code. If the cargo isclassified as harmful to the marine environment,then the hold washing water (i.e. cargo residues)has to be kept onboard and safely dischargedinto reception facilities ashore in all cases (subjectto the interim measure applying, please seebelow). If cargoes that are harmful are carried, then this has to be fully documented in onboard records/the garbage book.

Hold the line

Whether hold cleaning materials areharmful depends on whether theycontain any carcinogenic, mutagenicor reprotoxic components. This shouldbe clear from the Material Safety DataSheet or product information, whichwill be produced by the manufacturerand should be supplied by the personusing the chemical. If the cargo is notharmful, but the holds were cleanedwith hold cleaning chemicals which areharmful, then it is likely that the holdwashing water would have to be keptonboard and discharged into receptionfacilities ashore.

If the cargo (and any cleaningchemicals used) are not harmful tothe marine environment then holdwashing water can be discharged atsea, within areas in which discharge isallowed, subject to any other MARPOLrequirements. If the ship is in aMARPOL ‘Special Area’, discharge intothe sea is only permitted (i) if the port ofdeparture and next port of destinationare both within a Special Area AND(ii) no adequate reception facilities areavailable at the port of departure anddestination.

MARPOL Special Areas are the BalticSea, North Sea, Mediterranean, theGulfs Area, Wider Caribbean Regionand the Antarctic Sea. Eventually, onceshore reception facilities are availablein the Black Sea and Red Sea, theseregions may be classified as SpecialAreas for the discharge of garbage.

As an interim measure IMO Circular,MEPC.1 Circ. 810, providesdispensation for ships to dischargecargo wash water and residueswhich contain materials classed asHME until 31 December 2015 whereAdequate Port Reception Facilitiesare unavailable and providing certaincriteria are met. This measure wasbrought in because of problems inobtaining HME cargo declarations.

The IMO Circular stated:

“Further ports and terminals receivingcargoes classified as HME areurged to provide adequate portreception facilities, including forresidues contained in washwater.In the absence of such facilities, tominimise residues discharged underparagraph 3, terminals should facilitatethe discharge of all solid bulk cargoresidues ashore, including holdsweepings.”

Standard forms

There is also a reporting system inplace for ship’s masters to reportinadequate shore reception facilities(see IMO Circular, MEPC.1 Circ 469),standard forms for ships to provideadvance notification regarding use ofshore garbage facilities (IMO Circular,MEPC.1 Circ 644) and a standardwaste receipt to be issued by thereceiver of the garbage (IMO Circular,MEPC.1 Circ 645).

Ultimately it is the master/owner whowill have to take a decision aboutwhether cargo residues/cargo holdwashing water can be dischargedinto the sea or whether they must bedischarged ashore and they will be theparties targeted by the authorities forbreach of the regulations. In financial/contractual terms the (i) requirementto provide information on whether ornot cargoes/hold cleaning chemicalsare HME and (ii) the time and cost ofdischarge into shore reception facilitieswill be for charterers/cargo interests.

The latest BIMCO Marpol clause (seethe BIMCO Revised Hold Cleaning/Residue Disposal Clause for TimeCharters) puts responsibility firmlyon charterers. Therefore port andterminal operators may find themselvesdealing with charterers or cargointerests direct, as they may take onresponsibility for disposal since theywill ultimately be bearing the cost.

Since the regulations are relativelynew it is difficult to foresee all of thepractical and legal implications thatthe new system for waste disposal willhave.

One obvious effect of the regulationson port and terminal operators willbe to significantly increase demandfrom owners/vessel operators andcharterers/cargo interests for receptionfacilities for cargo residues andcargo hold washing water (as wellas traditional garbage) that is bothharmful and not harmful to the marineenvironment. This will require majorinvestment in new facilities (ideally at ornear the port) to discharge, store andultimately treat/dispose safely of such‘garbage’.

One problem is that the range ofharmful materials that a port mayhave to deal with is potentially wideand if those materials are contained incargo residues or washing water thensignificant capacity may be needed.Ports may need to identify what type of‘garbage’ they are most likely to haveto deal with and estimate how demandmay increase.

Smaller problems

It may also prove unviable for somesmaller ports to be able to providethe array of environmentally soundsolutions that will be required to receivediffering HME cargo residues and dealwith them in compliance with otherland-based environmental legislation.They may have to decide to providemore limited garbage facilities for‘popular garbage’ whereas major portsare more likely to provide a one-stopshop.

Whether or not governments willintervene to ensure the adequacy ofport reception facilities may vary fromcountry to country. Information aboutport reception facilities is available fromthe IMO GISIS Port Reception FacilityDatabase.

One upside that could be consideredfor ports is the earning potential ofreception facilities. Disposal of garbagewill be a growth industry and ports andterminals may be able to differentiatethemselves from their competitors byoffering a fast and reasonably pricedservice. In the same way that someports are known as bunkering ports itmay be that ports in key geographicalpositions develop a reputation assomewhere where garbage disposalof HME garbage can be efficientlyhandled.

However, as noted above, the IMOhas already granted some leeway tothe implementation of the Regulationsin IMO Circular, MEPC.1 Circ. 810. Itis conceivable that further extensionscould be granted if port receptionfacilities are still not adequate at theend of 2015. One difficulty with thispotential uncertainty is that it maymake it more difficult for ports andterminals to justify investment in newfacilities if potential customers are notgoing to be required to use them.

Compliant pays

Additionally, facilities must becompliant. Port reception andtreatment facilities should conformwith national Marpol implementinglegislation, national and local permittingschemes or licensing required byenvironmental and public health lawsconcerning waste handling. Use ofthese facilities must be arranged so itdoes not interfere with everyday portor terminal operations. They shouldalso be situated so that wastes andresidues removed from ships cannotreadily enter the water, otherwise thepurpose of the Regulations will benegated.

The service offered also needs tomeet customer requirements. The IMOCircular, MEPC.1 Circ 469 containsa proforma table for ship’s mastersto complete, which lists potentialproblems including:

• No facility available
• Undue delay
• Use of facility technically notpossible
• Inconvenient location
• Vessel had to shift berth involvingdelay/cost

Generally port and terminal operatorsmay find it helpful to refer to IMOCircular MEPC.1 Circ. 671 which isa Guide to Good Practice for PortReception Facility Providers and Users.Ports/terminals will also need to makesure that their insurance cover andcontracts reflect any new facilities/tasks undertaken.

For more information, please contactRory Butler, Partner, on+44 (0)20 7264 8310, orrory.butler@hfw.com, or your usualcontact at HFW.