Комментарии

Requirements of Russian Legislation

Summary

Pursuant to the 1973 International Convention for the Prevention of Pollution from Ships (amended) (“MARPOL”), oil platform operators are required to promptly report oil discharges of more than 15 ppm, regardless of volume. As an exception, MARPOL does not require notification of any oil discharge that arises directly from the exploration, exploitation or associated offshore processing of sea-bed mineral resources (the “MARPOL Exemption”). Accordingly, any spill of lubricating oil, or fuel oil at the platform, in a concentration above 15 ppm without dilution, would need to be reported without delay, while any discharge, at the platform, of oil which was produced from a well, including oil mixed with produced water, mud or cuttings, would not need to be reported under MARPOL.

In the case of oil discharges from the operation of platforms, Russian law incorporates MARPOL requirements. Companies are obligated to report, without delay, any discharge of oil in excess of 15 ppm to the nearest coastal radio-station of the local Rescue and Coordination Center unless the MARPOL Exemption applies. Companies would not be obligated to deliver such reports to any other Russian authorities under these circumstances, although according to the State Environmental Committee (“Goskomekologiya”) there is an expectation (apparently observed in practice), that such reports will also be delivered to the local branch of Goskomekologiya and the Ecology Department of the local Administration.

With respect to oil spills that are subject to the MARPOL Exemption, Russian law does not impose any specific reporting requirements triggered by the volume or concentration of the spill. Rather, any oil spill subject to the MARPOL Exemption must be reported if it poses a threat to the “sanitary-epidemiological well-being of the population” and/or rises to the level of an emergency. Such spills must be reported to the local branch of the State Sanitary and Epidemiological Service, the Ecology Department of the local Administration, and the local branch of the Ministry of Emergency Situations.

Given the lack of clarity and specificity in Russian law regarding oil spills subject to the MARPOL Exemption, it appears that the rules set forth in a company’s draft oil spill communication plan are appropriate if they are consistent with prudent international industrial practice.

Since different reporting requirements apply to oil spills involving ships and other sea-going vessels, it appears that an oil spill communication plan may need modification to distinguish on-FSO (as defined in Section II.A.3. below) monitoring from on-platform monitoring.

II. Discussion

A. Oil Discharge Reporting Instructions

The current procedure for reporting oil discharges in Russia is set forth in Instructions on the Procedure for Providing Notification about Marine Pollution, approved by the Ministry of the Environment of the Russian Federation on May 12, 1994, the Russian Fisheries Committee on May 17, 1994 and the Ministry of Transport of the Russian Federation on May 25, 1994 (the “Oil Discharge Reporting Instructions”). The Oil Discharge Reporting Instructions were first issued in 1987 and were later modified and restated in their present form to take into account Russia’s accession to MARPOL as well as the 1972 Convention on the Prevention of Pollution of the Sea with Discharged Wastes and Other Materials, the 1974 Convention on Marine Protection of the Baltic Sea, the 1992 Convention on the Protection of the Black Sea from Pollution and other international agreements.

1. Scope of Application and Enforcement Authority

The Oil Discharge Reporting Instructions “establish a general procedure for providing notification stipulated by legislation of the Russian Federation as well as by international agreements of the Russian Federation on the discharge (sbros) or possible discharge of oil or other harmful substances into the sea from ships and other objects (sea-going vessels, man-made islands, islands, drilling rigs (ustanovki) and other platforms (sooruzheniya)), and on the detection of violations of rules for the prevention of marine pollution and on the discovery of significant spills (razlivy) of pollutants, regardless of their origin” (Para. 1.2).

The provisions of the Oil Discharge Reporting Instructions are mandatory for, amongst others, “persons who supervise the conduct of work on artificial islands and platforms, which are used or constructed within the limits of the territorial waters or economic zone of the Russian Federation” (Para. 1.3).

In addition to the relevant ministries, agencies and organizations, having within their jurisdiction ships and other sea-going vessels, seaplanes, artificial islands, drilling rigs and other platforms, certain specialized marine inspectorates of Goskomekologiya are responsible for enforcing the Oil Discharge Reporting Instructions (Para. 1.4).

2. Types of Marine Pollution Covered

The following instances of marine pollution are subject to mandatory notification under the Oil Discharge Reporting Instructions:

An incident involving a ship or other object which results in, or could result in, the discharge of oil or other harmful substances;

The discovery that oil or other harmful substances have been discharged from another ship (regardless of its flag) or other object, in violation of the applicable international or national rules;

The discovery in the sea of a discharge of oil or other harmful substances (Para. 2.1).

3. Notification Procedures

The Oil Discharge Reporting Instructions set forth three procedures for notifications from (i) artificial islands, rigs and structures, (ii) seaplanes and (iii) ships and other sea-going vessels. The procedures for notification from artificial islands, rigs and structures would apply to platforms, whilst the procedures for ships would apply to floating, storage and offload vessels (“FSOs”) and shuttle tankers.

a. With Respect to Artificial Islands, Rigs and Structures

Paragraph 5.1.1 of the Oil Discharge Reporting Instructions states that “persons who supervise the conduct of work on artificial islands, rigs or structures which are used or constructed within the territorial waters and the maritime economic zone of Russia or which are registered in Russia, are obligated to immediately notify the nearest coastal radio-station of the rescue-coordination (sub)center about any incident which resulted in, or could result in, the discharge of oil or other harmful substances from such island, rig or structure in excess of the limits established by international or national rules.”

The Oil Discharge Reporting Instructions also prescribe the reporting procedure. The rescue-coordination (sub)center and an unidentified dispatch controller are required to fly the incident information to the nearest specialized marine inspectorate of Goskomekologiya, as well as to the State Marine Rescue-Coordination Center in Moscow and the State Administration of the State Marine Specialized Service of the Department of Marine Transport of the Ministry of Transportation (Para. 6.1). This Department is responsible for preparing the notification of incidents involving the discharge of harmful substances for transmission to the International Maritime Organization or any state affected by the incident (Para. 6.2).

Further, in the absence of any national rules, the limitation of 15 ppm established by MARPOL (including the MARPOL Exemption) would apply. Thus, as a matter of Russian law, any discharge of oil in excess of 15 ppm that creates a sheen must be reported without delay unless it qualifies under the MARPOL Exemption.

Paragraph 5.1.2 of the Oil Discharge Reporting Instructions sets forth the following content requirements for the reporting of any oil discharge in excess of 15 ppm:

Location by cartographic coordinates of the artificial island, drilling rig or other platform;

Time [and date] of the occurrence of the incident;

Description of the incident;

Amount and concentration of harmful substance discharged into the sea;

Seasonal conditions prevailing at the site of the occurrence (e.g., sea conditions, visibility, speed and direction of the wind);

Existence of any need to call for assistance;

Corrective measures taken to clean-up the pollution;

Any other information which the person supervising the conduct of the work at the given object considers necessary.

b. With Respect to Ships and Other Sea-Going Vessels

Paragraph 3.1.1 of the Oil Discharge Reporting Instructions provides that “the captain of a ship or another sea-going vessel is obliged (as well as recording in the ship’s log), without delay and to the fullest extent possible, to report information on an incident involving his ship, which results in:

A discharge or the possibility of a discharge of oil, or seepage of transported harmful substances, as a result of damage to the ship, or its equipment, or for the purposes of ensuring the safety of the ship, or the rescue of human life at sea;

A discharge or the possibility of a discharge of harmful substances from the hold into the sea, including shipping containers, detachable tanks, road and rail cisterns, and river barges (lighters);

Discharge, during the use of a ship, of oil or other harmful substances in amounts exceeding the quantity and instantaneous flow-rate (mgnovennaya intensivnost’) that are permitted by applicable international or national rules.

When evaluating the probability of the discharge of oil and other substances as a result of damage to a ship or its equipment, either of which calls for notification, the following factors should be considered: (i) the character of the damage, disrepair or break-up of the ship, its mechanisms or equipment; and (ii) the condition of the sea and the force of the wind in the region at the time of the occurrence and the way these are changing. In particular, information must be provided in the case of (i) damage, disrepair or break-up affecting the safety of the ship (e.g., collision, running aground, fire, explosion, a breach in the integrity of the construction, flooding and cargo displacement); and (ii) failure in the operation, or breakdown, of mechanisms or equipment which affect the ship’s safety or sea-worthiness (e.g., a breakdown or failure in the operation of the rudder mechanism, the main engines, the ship’s electrical supply system or essential parts of the ship’s navigational system).

The above information must be reported to the rescue-coordination center or subcenter if the ship is located at sea, or in a body of water, in the internal maritime territorial waters of Russia, the maritime economic zone of Russia, or, outside its boundaries with the nearest coast being Russian. If the ship is located within the limits of, or near, a region in which a special system operates for the notification of ship movements, then the information is transmitted through the prescribed coastal service responsible for operating such a system (Para. 3.1.3).

Notification of one of aforementioned incidents must contain the type of information stipulated in Annex 2 of the Oil Discharge Reporting Instructions. Annex 2 sets forth (i) the notification procedure, (ii) standard instructions and the information format and (iii) specific informational requirements. The notification procedure identifies specific points of information, including information on harmful substances and information on marine pollution. The former must be reported when the incident results or may result in oil discharge or the seepage of harmful liquid substances and refers to Attachments Nos. 1 and 2 of MARPOL respectively for further guidance. The latter must be reported in the case of the actual or possible loss overboard of harmful substances located in the hold (which substances are identified in the International Maritime Code of Dangerous Shipments as ocean-polluting substances) and refers to Attachment No. 3 of MARPOL for guidance.

The specific informational requirements for reports on harmful substances (i.e., points A, B, C or D, E, F, L, M, N, Q, R, S, T, U and X) and on marine pollution (i.e., points A, B, C or D, M, Q, R, S, T, U and X) in Annex 2 refer to certain points of a “Standard Information Format”, which we assume was initially established by, and is set forth in, MARPOL. If there is a possibility of a discharge of harmful substances or marine pollution, then point P must also be included. Annex 2 restates the content of points P, Q, R, T and X with respect to both harmful substances and marine pollution, and a translation of the Oil Discharge Reporting Instructions should be referred to for particulars in this respect.

If for any reason the required information about the actual or possible discharge of oil or other harmful substances cannot be transmitted from the ship involved in the incident, the shipowner, or in the appropriate instances the party who has chartered the ship, the operator or the agent, is responsible for transmitting such information to the fullest extent possible (Para. 3.1.5).

Paragraph 3.2 of the Oil Discharge Reporting Requirements sets forth reporting requirements with respect to the discovery or observance of a spill of oil or other harmful substances. In this case, the captain of the ship is required, without delay, to inform the rescue-coordinating (sub)center as discussed in Section II.A.3.a above.

The above notification must include the following information:

The time of the discovery of the oil spill and its coordinates;

The seasonal conditions at the place of the spill (sea conditions, speed and direction of the wind, visibility);

The character of the pollution and its extent (area);

The presumed source of the pollution (Para. 3.2.2).

Paragraph 3.3 of the Oil Discharge Reporting Instructions also sets forth notification requirements with respect to the violation of applicable international or national rules. In particular, upon discovery of the discharge of oil or other harmful substances into the sea from another ship (Russian or foreign) or another object, from which there is basis to suppose that such discharge was carried out in violation of applicable international or national rules against marine pollution, the captain of a ship must inform the rescue-coordinating (sub)center or administration of the nearest port of any state (Para. 3.3.1). In those cases where the observed violation leads to a significant spill of oil or other harmful substances affecting the interests of a foreign state, the authorities of that state (as discussed in note 3) must also be notified (Para. 3.3.2).

B. Sanitary Law

Under Article 10 of Federal Law No. 52-FZ “On the Sanitary-Epidemiological Well-Being of the Population,” dated March 30, 1999 (the “Sanitary Law”), legal entities are required to inform in a timely fashion, the population, local self-government bodies and bodies and institutions of the State Sanitary-Epidemiological Service of the Russian Federation, about catastrophic circumstances, production stoppages or breakdowns in technological processes that create a threat to the “sanitary-epidemiological well-being of the population”. The term “sanitary-epidemiological well-being of the population” means “the state of public health or welfare in which any factors having a harmful influence on the welfare of a person are absent and salutary conditions for daily activities are safeguarded.” Such considerations include biological, chemical and social (e.g. food) factors, as well as other factors that affect a person and/or the health of future generations (Art. 1).

While there are no published criteria or standards for determining when an oil spill creates such a threat, nor are there any requirements as to the form, content or manner of filing of reports relating to such spills, it appears that a de minimus spill or sheen should not be considered as posing a threat to the sanitary well-being of the population. Nevertheless, if an oil spill is likely to have any of the impacts described above, it should be reported to the affected population, the affected local administration(s), and the local branch of the State Sanitary Service. With respect to notification of the affected population, it is unclear what form of notice would be required. Depending on the circumstances, radio, television or newspaper notification may be appropriate.

C. Emergency Situations Law

Pursuant to Article 14 of Federal Law No. 68-FZ “On the Protection of the Population and Territory from Emergency Situations of a Natural or Man-Made Character,” dated December 21, 1994 (the “Emergency Situations Law”), legal entities are obligated to submit, “in accordance with the established procedure”, information with respect to the protection of the population and territory from “emergency situations”, as well as to notify their workers about the actual or threatened occurrence of “emergency situations.” The term “emergency situation” means “a situation in a defined territory that has suffered a disaster, a dangerous natural phenomenon, a catastrophe, a natural or other calamity, and that may result or has resulted in human casualties, harm to the health of individuals or to the environment, significant material losses or a deterioration in living standards” (Art. 1).

While there are no published criteria or standards for determining when an oil spill qualifies as an emergency situation, a de minimus spill or sheen should not be considered an emergency situation. Nevertheless, if it is likely to have any of the impacts described above, the oil spill should be reported.

Although the Emergency Situations Law refers to an established procedure, it does not provide any such procedure and there is no indication that any such procedure has been established.

Прочитавших: 4125