Ballast Water Treatment Regulation — The Latest Developments
In late September 2016 when Finland’s signature triggered the coming into force of the 2004 Ballast Water Management Convention, it was anticipated that from September 2017 ships would need to be fitted with treatment systems as the next issue date of their International Oil Pollution Prevention certificate.
What had not been foreseen was the shipowners’ resourcefulness in arranging – with the agreement of flag states – for decoupling the IOPP survey from the usual five-year cycle and in doing so gaining up to a five-year extension in the compliance date. This move was fiercely criticised by system makers, environmental groups and the IMO itself.
For their part, the shipowners had put forward several arguments complaining of a faulty type approval process, systems that did not live up to expectations and a massive cost that could not be afforded. In addition, the difference between the IMO and US regulations and approval process could mean that any system installed might not prove to be acceptable to the US authorities in the future requiring it to be replaced with one that was.
These were not the only objections. Owners of bulk carriers have also been saying for some time that the gravity discharged ballast tanks of some bulkers are not catered for by systems most of which require further treatment on discharge.
Before Finland’s ratification, there was some sign of rowing back by countries which had ratified the convention even earlier. Proposals for a delay were though ignored. However, at MEPC 70 which came just a month after the triggering, a new proposal for alternative draft amendments which would allow for compliance by the second renewal survey in certain circumstances was put forward. It was agreed that the alternative proposal would be debated at MEPC 71.
Much to the dismay of most system makers, MEPC 71 did adopt the alternative proposal amending regulation B3 and although the coming into effect date of 8 September 2017 remained unchanged, the application to individual existing ships was changed.
For newbuildings, ships with a keel laying date before 8 September 2017 and delivered after that date, need to comply with the D-2 treatment standard at the first IOPP renewal survey after delivery. This will mean that for such ships, the earliest date at which a system will be mandatory will be September 2022 but since some ships under construction may not be delivered for two years or more, the date will effectively be five years after eventual delivery.
Ships with a keel laying date on or after 8 September 2017 need to comply with the D-2 standard upon delivery meaning they will need to be fitted with an onboard treatment system or make use of one of the alternatives such as no-ballast, making use of shore facilities or operating within a same risk area.
For existing ships (delivered prior to September 2017), the dates will vary depending on the IOPP renewal date. This will be the first IOPP renewal following entry into force if the survey is completed on or after 8 September 2019 or a renewal IOPP survey is completed on or after 8 September 2014 but prior to 8 September 2017.
Otherwise ships must be compliant on the second IOPP renewal survey following entry into force, if the first renewal survey following the date of entry into force of the convention is completed prior to 8 September 2019 and if conditions the conditions mentioned above are not met. Effectively this means that a ship which is due for an IOPP renewal survey between 8 September 2017 and 8 September 2019 cannot decouple its IOPP survey for a second renewal before 8 September 2019 without then having to comply with the D-2 treatment standard.
Small existing vessels which are not required to hold IOPP certificates (Oil tankers of less than 150gt and ships other than oil tanker of less than 400gt) will be required to install systems not later than 8 September 2024 although many of these could be exempted as they will not operate internationally.
One consequence of the revised schedule is that those owners that have already decoupled the IOPP certificate may have lost two years of possible postponement. On that basis their gamble may look not to have paid off, but given that some flag states were willing to accommodate owners looking to postpone by decoupling, there is a possibility that the flag states involved may agree to cancel the latest certificate and revert to the earlier certificate date.
The coming into force date of September 2017 does have implications regardless of whether a system is installed or not. All vessels without a system must continue to conduct ballast water exchange in accordance with Regulation D-1 and their approved ballast water management plan until such time as they are required to install a system and meet the D-2 ballast treatment requirements.
Under Regulation B-1, after 8 September 2017 all ships must have on board an approved ballast water management plan and adhere to its requirements. The plan must be ship specific and the crew must record all ballast water operations in a Ballast Water Management Record Book recording all the information specified in appendix II of the 2004 convention.
Same Risk Area rules changed
As well as the delay to the installation schedule, MEPC 71 also adopted amendments to the guidelines on same risk areas (SRAs). Despite some negotiations and discussions by groups of nations from the Baltic and South East Asian regions, no same risk area has yet been established.
The idea of same risk areas, where ships operating solely in areas where the same species exist, has been contained in the convention from the outset. Regulation A-4 contains provision for ships on short-sea voyages between specified ports or locations across international borders may be granted an exemption from installing treatment systems if it is decided that the risk of transfer of invasive species is acceptable.
For a SRA to be established a risk assessment should be carried out and Guideline (G7) details the recommended process for this. Furthermore, regulation A-4 allows an exemption to be granted for multiple ships and voyages between specified ports and locations. It is accepted that aquatic species and pelagic life stages of marine organisms may disperse naturally across international borders, irrespective of other vectors of transfer such as ballast water and there have been many arguments to the effect that risk assessments should have been carried out while the convention was in the ratification process.
There is now some movement to get the risk assessments underway and if such areas are established then ships operating exclusively in SRAs will not need to install treatment systems. Affected shipowners will no doubt be hoping that the delay to Regulation B-3 will allow some progress to be made in establishing SRAs before the installation dates for their ships arrive.
Although some national governments have at least initiated discussions, it cannot be taken for granted that they will reach a decision in time and Shipowner associations will come under pressure to lobby hard to speed things along.
US approvals growth signals end to AMS status
The different approaches to type approval in the US and IMO processes has meant that there are far fewer systems approved by the US Coast Guard and the first approval was given several years after the first under the IMO. The Norwegian maker Optimarin was the first US approved system gaining that status in December 2016. A year later in December 2017 there were just six systems with US type approval and two more undergoing final evaluation.
While the IMO system of type approval was in disarray and subject to much criticism, the US regime was held up as a better and more robust process despite it not having any type-approved systems to choose from. The AMS program which permitted certain recognised and IMO approved systems to be operated in US waters for five years beyond their compliance dates until US approved systems became available was a pragmatic solution to the problem.
In March 2017, the USCG issued MSIB No. 3-17 which laid out the future extensions permitted for vessels to fit approved systems. Under the new rules, vessels not fitted with an AMS and having a compliance date up to and including 31 December 2018 will be permitted extensions of just 18 months if one of the approved systems is considered suitable for the ship. If it is determined that one of the approved systems is not suitable, the shipowners must provide a strategy and a timeline for compliance and an extension of up to 30 months may be permitted.
For vessels having a compliance date between 1 January 2019 and 31 December 2020 requests for extension will be considered 18 months prior to the vessel’s compliance date but the USCG has warned that changes in the market or availability of US type-approved systems may impact the requests. For ships with a compliance date of 1 January 2021 or later, the USCG has said it does not anticipate granting any extensions.
The situation in the US is a little confusing because some individual states retain the right to enact their own requirements with regard to ballast water. California is notorious as one of those states and it has enacted laws imposing discharge standards that are stricter than the US Federal rules. Because of a lack of available technology, the implementation dates have been delayed until 2020.