Last week on the official web-site of Ukrainian Government full text of the Regulation on Conducting Inspections and Taking Water Samples and its Analysis has been published. The Groysman’s Government approved this Regulation on the "farewell" meeting on 21st of August 2019. Although all other Government’s acts approved on that meeting was published immediately, publication of the Regulation was arranged only within two weeks. The Regulation is approved, what awaits owners and maritime community?
Absence of the Regulation as the formal reason to suspend vessel’s inspections
First of all, it should be noted that approval of the Regulation on Taking Samples and Conducting the Inspections was prescribed by the clause 51 of the Rules on Sea Waters Protection from Pollution, upon which the Government shall approve the document regulating the procedure of taking water samples in case of finding "visible trace impurities" in the sea water. Before that "ecological" inspections of vessels have been suspended (because of absence of the procedure). If the ecologists ignore the ban and come on board, the courts recognized these actions unlawful. Now, with approval of the Regulation and its official publishing (it has come into force on 5th of September 2019), a formal reason for "suspension" so-called "ecological inspections" has been removed and therefore ecologists could try to continue "protection of sea from pollution" with full blast.
The Regulation consists of the introduction and two sections, one is regulating the procedure of taking samples in the port’s area and second – on board of the vessel.
Taking of Samples in the Port’s Water Area
The Regulation directly prescribes that taking of samples of background of water quality indicators in the port’s water area should be conducted by the representatives of port’s administration in the sampling points (these sampling points should be approved by USPA for each port). Taking of samples in the pollution area should be conducted by the ecological inspector in the presence of administration of sea port. There is a reference to three applicable State Standards of Ukraine "5667-6:2009 "Quality of Water. Samples Taking. Section 6. Guidelines on Taking Samples of Water from Rivers and Streams", "5667-6:2005 "Quality of Water. Samples Taking. Section 9. Guidelines on Taking Samples of Sea Waters" and "5667-3:2001 "Quality of Water. Samples Taking. Section 3. Guidelines on Storage and Work with Samples". According to the Regulation, in the place of pollution the water samples should be taken in two copies; and for the purpose of determination of background water quality indicators – in one copy.
What is the Procedure of Taking Samples on Board?
Unlike in the water area, taking of samples on board of the vessel should be conducted by the ecological inspector in the presence of the representative of the Maritime Administration, the Master and marine agent (upon consent of the latter). If the Master is absent, he could be replaced by another authorized crewmember (usually Chief Engineer is responsible for ballast water operations). Taking of water samples on board of the vessel should be executed in the places prescribed by the vessel’s plans taking into account the nature of pollution and could be related solely to the polluting substances, which caused the pollution of the port’s area according to the act of control of water quality. The particular places of taking samples on board should be determined by the representative of the Maritime Administration with participation of the ecological inspector and Master of the vessel. While taking samples on board results of comparing of water quality in the place of pollution with background figures should be taken into account.
Samples of water on board of the vessel should be taken in three copies, which are sealed and should be supported with act of taking samples (form of this "act" is attached into the Regulation). First copy of sample remains with the Master. Second ("control" copy or so-called "referee sample") should be handed over to the representative of the Maritime Administration and should be kept as "control copy" within 24 hours. Upon expiry of this term this copy should be destroyed and no claims could arise. According to our opinion, this is a stringent term, and it should be extended up to 5-10 days. Besides, destroy of this "control" sample would deprive the Owners from sending claims under the accident. What is the purpose for remaining another sample copy with the Master if legal meaning should have only the "referee sample" handed over to the Maritime Administration? Third copy of water sample is handed over to ecologists, who will deliver one to the laboratory for conducting analysis.
It is strange that Regulation (clause 19) directly prescribes the possibility of taking samples from ballast waters from the ballast system of the vessel (in particular, from the water ballast tanks) with taking into account its construction features. As you know, water ballast tanks of the vessel is dedicated solely for taking and deballasting of segregated ballast, and no vessel has technological possibility on taking samples of segregated ballast, which was reported many time during discussion of the matter.
Who will conduct sample’s analysis?
Analysis should be conducted by the laboratory according to the methods of measurements indicated in the annex 4. Instrumental and laboratory measurements of water samples should be arranged within 24 hours. Nothing in the Regulation is mentioned who will pay for the services of laboratory and what is the source of financing for that purposes?
English languages and annexes to the Regulation
The following sample forms are attached to the Regulation: the Act of Inspection of the Water Area; the Act of Taking Samples of Background Water Quality Indicators; the Act of Taking Samples on Board of the Vessel and information about methods of measurements. From three aforesaid sample forms only one (the Act of Taking Samples of Water on Board) is executed in English and Ukrainian language. Two other forms of act (which are also referred while taking of samples on board) are drafted only in Ukrainian. Nowhere in the Regulation it was mentioned that ecological inspector, who takes samples on board of the vessel should speak English on necessary level (we would suggest to fix at least "Intermediate" level) or that Master who does not speak Ukrainian should be provided with the translator. It looks like ecologists will try "to charge" with this duty the marine agents as it were in the past.
According to our opinion, the real effect from approval of the Regulation could be evaluated within 1-2 months – at that time we will understand whether and which exactly changes are required.
