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Regulations float in confused seas

The Naval Architect: June 2015

Not long ago, maritime safety and environmental regulations were relatively straightforward. The three main pillars ­ MARPOL, SOLAS and STCW ­ gave us the necessary structure for operational conduct and, by and large, the industry agreed that their intentions were positive. The addition of the fourth pillar, MLC 2006 (the Maritime Labour Convention), has also turned out (so far at least) to be an equal force for good.

This situation has changed. IMO member states, national governments and lobbyists alike have moved the agenda of safety, oil pollution prevention and human factors into new territory.

As a classification society, we at ABS are often asked for advice on compliance with the new wave of environmental regulations. We can, and do, talk about what these regulations dictate and provide various potential compliance options, but even we may not always have all the answers.

This is because, as the content of the regulations change, the resulting requirements have morphed from challenging but achievable to increasingly complex and sometimes unattainable. The regional variations in the regulations call for complex and sometimes multiple compliance options.

The new breed of regional and international environmental regulations are not necessarily aligned with either the industry or each other. They are often incomplete and enforcement procedures are unclear. Worse still, the technology required to comply may not have matured sufficiently and, in some cases, is still under development.

Ballast water management (BWM) regulations are a prime example of regulations that have not met the best intentions of those who created them. By the time this article is published, the Ballast Water Convention may have been ratified- eleven years after it was adopted. But even now the criteria for sampling and analysis of ballast water and for Type Approval have been re-opened for review, despite IMO-approved systems being available and installed on many ships.

The US has its own regulations, but has not approved any treatment systems, so it is impossible to comply except on an interim basis by Alternate Management Systems or ballast water exchange.

The shipping industry is not just confused by this situation, it is bewildered. Shipowners understand their responsibilities; they are a compliance-minded group and, given a clear path to regulatory compliance, the majority will follow it. Unfortunately, the current situation forces the proactive among them to potentially waste money and man hours developing a strategy based upon ‘what-if’ scenarios.

Industry organisations are warning that compliance efforts must not be delayed given the time required for implementation of a BWM system. However, this is a story that owners have heard for a decade so who can blame them if they are still sitting on the fence?

It would be an untenable situation if equipment that has been approved and installed on board in accordance with adopted international standards is subsequently found to be unacceptable by some authorities. The most significant in coping with the convention is the unavailability of treatment solutions that are practical, robust and acceptable on a global basis.

Approval testing by the US Coast Guard (USCG) began in earnest this spring. That is a glimmer of good news but consider the scenario in which the USCG comes to a conclusion about certain technology that does not align with the other flag states’ approvals. The risk for manufacturers of alternative systems that do comply with the convention is a wasted effort both in terms of expense and development time.

The situation regarding air emissions is clearer in some ways, but murkier in others. On the one hand the maximum sulphur levels in the Baltic and North Sea Sulphur Emission Control Areas (SECAs) are well known and long-signposted. The industry has had experience with Emission Control Areas (ECAs) for some years now and the step-down has been phased to ease the burden to a degree.

The more recent creation of an ECA in the waters around North America is based on studies showing the substantial benefits of low sulphur fuels and reduced NOx emissions to large segments of the population, as well as to marine ecosystems. But the shift towards ‘low sulphur shipping’ is still a controversial measure since it requires a large scale investment to switch to distillate fuel, invest in a scrubber solution or even plan new buildings with alternative fuels. The first two have their own technological challenges, notably availability of compliant fuel and the maturity of sulphur scrubber technology applied to large marine engines.

When NOx is added into the mix, the problem becomes far more challenging and there remains some misunderstanding of the almost ‘magical powers’ of LNG to solve the industry’s emissions problems. Even if one sets aside the fact that building a dual-fuel ship could cost 40% more than a conventional one, LNG is not a simple solution to the NOx regulations ­ it requires a visionary attitude from owners as well as a capital commitment.

Given the goal-based options for compliance, it is fair to say that the revisions of MARPOL Annex VI are clear in terms of expectations. Their surely unintended consequence is that, because they leave the challenge of enforcement to coastal and flag states, it is difficult, if not impossible, to estimate the level of compliance. What has currently manifested itself as a European problem will become a global one once the new global sulphur maximum comes into effect in 2020 or 2025.

Actual enforcement in the US ECA, where compliance is shared between the USCG and Environmental Protection Agency (EPA), will prove interesting as the two agencies may take different approaches with respect to the means of determining compliance. Based on recent notifications, the USCG will take the lead and, where potential violations remain unresolved, the EPA will be notified and investigate further.

Earlier environmental regulations which mandated segregated ballast tanks or double hulls were controversial in some respects, but solutions to the problems could be found because the regulations were rooted within traditional ship design and shipbuilding practices. The purposes and rationales for the regulations were clearly understood inside the industry and out, even when politically motivated.

So what has changed? First, the environmental groups pushing the air emission and ballast water agendas have enjoyed public support, the impact of which has not been fully recognised by the industry. The pressure to adopt regulations without a thorough understanding of their impact may have led to adoption before the industry was ready.

Second, both the BWM Convention and the revision of MARPOL Annex VI introduced new sciences, both biology and chemistry, with which the industry had little experience. They were also ‘aspirational’ in nature; a new concept for international regulation.

Governments and politicians ­ and thus the national delegations to IMO ­ found strong support for these regulations among their electorates and pushed the regulations forward on the basis that shipping should play its part in ‘going green’ or ‘being more sustainable’.

What was not fully appreciated when the regulations were being developed is that in order to protect the environment, the industry needs practical, available and feasible technology, as well as enforcement that provides a level playing field to all. We have to ask ourselves: Do these regulations achieve that?

One lesson learned is that development of regulations without the prior availability of proven technological solutions is a questionable policy at best. The consequences we are now faced with from the BWM Convention simply cannot be allowed to happen again.

We are only at the beginning stages of determining the long-term implications of the low sulphur climate in which we now operate ­ and how well this regulation can be complied with and enforced.

To avoid a repeat of past mistakes, the industry ­ class societies included ­ must act in three ways.

We must engage as soon as is feasible in the development of new rules, regardless of the type of regulations being discussed. Class societies now have capabilities that range far beyond technical evaluation of steel structures, i.e. research into human factors, environmental management, operational efficiency and complex technology systems. We should bring these skills to bear, but everyone in the industry needs to play their part.

We need to understand what the public at large wants, since that drives governments to develop regulation and we must also educate the public about what is feasible. As we often hear, the industry would benefit from a better public profile.

Finally, there is a need to communicate to the regional and international regulators why creating unilateral regulations for international shipping will usually make the situation worse rather than better.

At present, the marine industry is sailing in confused seas - an oceanographic term for ‘a highly disturbed water surface without a single, well-defined direction of wave travel’. My hope is that by addressing these aforementioned challenges head-on, together we can make a safe passage to calmer waters.

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