A government bill on port reception facilities for waste from ships (print no. 2223) was released in May 2022. The bill would implement into Polish law Directive (EU) 2019/883 of the European Parliament and of the Council of 17 April 2019 on port reception facilities for the delivery of waste from ships, and is intended to adapt Polish ports to global and local market requirements.
The basis for the revised waste management rules for ports is a structural change separating the administrative functions of ports of primary economic importance from their operational functions. This will facilitate foreign investment in port areas.
(Not) new terminology…
The bill devotes much attention to definitions. Some of them modify the existing definitions, while others merely reiterate the current regulations.
For example, a broader definition of “waste from ships” is introduced, to include any waste generated during the operation of a ship or following loading, unloading and cleaning, falling within the scope of Annexes I, II, IV, V and VI of the MARPOL Convention (International Convention for the Prevention of Pollution from Ships). At the same time, within this concept, it is explicitly proposed that cargo residues and passively fished waste, understood as waste collected in nets during fishing operations, be included. The current regulations do not apply to cargo residues and wastes listed in Annex II to the MARPOL Convention.
The bill also clarifies the definition of “cargo residue,” to mean the remnants of any cargo on board or in holds or tanks after completed loading and unloading operations, including surplus after loading and unloading and residue, whether in wet or dry condition, or entrained in wash-water, excluding cargo dust remaining on the deck after sweeping and dust on the external surfaces of the ship.
In several places, the bill proposes to merely restate definitions found in other legislation. For example, the definition of “treatment” replicates the definition in the Waste Act. In turn, the definitions of “ship” and “fishing vessel” correspond to the definitions in the Act on Prevention of Sea Pollution from Ships.
Selective waste collection in seaports
Following the change in the definition of waste from ships, ports are required to receive a wider range of waste, including cargo residues and waste itemised in Annex II to the MARPOL Convention. One of the most significant changes for waste management in seaports is introduction of the requirement to provide separate collection of waste. In line with the current law, paper, glass, metals, plastics and biodegradable waste, with a particular emphasis on bio-waste, are collected separately. Additionally, pursuant to the new bill, the operator of a port (or sea marina) will be required to ensure that the process of discharging and receiving waste from ships is carried out with all possible precautions to avoid potential hazards to persons at the port and the environment.
Additionally, the bill clarifies the issue of capacity of a port facility. It refers to “adequate” capacity, understood as the availability of port reception facilities to ensure the reception of a certain type and quantity of waste from ships normally using the port, taking into account various factors, e.g. the operational needs of the port’s users, and the size and geographical location of the port.
Additionally, the port operator will have to issue a receipt for waste from ships. The elements of this document are proposed in the draft, whereas the template of the receipt form is left to be drawn up by the minister for maritime economy. One exemption from the obligation to issue a receipt for waste from ships is planned for marinas with only self-service port reception facilities for waste from ships.
Expanded regulation of management plans for waste from ships
The current statutory regulation of management plans for waste from ships is brief, but is further elaborated in the Regulation of the Minister of Infrastructure on Port Management Plans for Waste and Cargo Residues from Ships. The proposed new act would amend both of these regulations.
Port operators are obliged to prepare plans for management of waste from ships. In principle, each port will have its own plan, but for practical and organisational reasons, the bill allows one waste management plan to cover two or more immediately adjacent ports in the same province, but only when the needs and availability of port reception facilities for waste from ships are determined separately for each of those ports.
With some exceptions, the mandatory elements of the waste management plan remain the same as before. However, the bill constructs an entirely new catalogue of optional elements. These include:
- Summary of national regulations and procedures for discharge of waste from ships to port reception facilities (until now, the information on legislation currently in force for the reception of waste and cargo residues from ships has been an obligatory element of the plan)
- Designation of a contact point at the port
- Description of the equipment for pre-treatment of waste from ships and technological processes for specific types of waste from ships at the port, if applicable
- Description of methods for recording the current use of port reception facilities for waste from ships
- Description of methods for recording the amount of waste discharged by ships
- Description of methods for handling various types of waste from ships at the port.
Once a draft plan is prepared, consultation is required. The bill would expand the group of entities that should be consulted. In addition to port users, these will include recipients of waste from ships, organisations implementing obligations resulting from extended producer responsibility, and community organisations. A summary of the consultations will be a mandatory element of the application for approval of the management plan for waste from ships. In effect, the plan itself will describe the consultation procedure. Based on these changes, in the course of creating the plan there should be greater participation of entities whose tasks or objectives may be indirectly affected by the plan. This solution should be assessed positively.
As before, management plans for waste from ships will be approved through an administrative decision. The proceedings for approval of the plan will be initiated by filing an application. To date, neither the act nor the regulation has specified the elements of the application. In principle, this was not necessary, as they result directly from the Administrative Procedure Code. The new bill lists them explicitly. In addition to indicating the date of preparation of the application, the applicant’s details and the competent authority, the applicant will need to indicate the port along with its address and the date of last approval of the management plan for waste from ships. According to the general rules, an application bearing the applicant’s signature will also include a list of attachments. The application will be drawn up on a form to be specified by the minister for maritime economy.
The county executive (starosta) will be the competent body to issue a decision on approval of the plan, except for ports of fundamental importance to the economy, where the competent body will be the province marshal. Before issuing a decision, either authority will have to make arrangements with the director of the relevant maritime office.
Both the law currently in force and the bill provide for review of management plans. Currently, a plan is subject to update and re-approval at least once every three years. Under the new law, plans would have to be updated and re-approved within five years from the last approval. These changes should be assessed positively. They will reduce the costs and administrative effort in a situation where the plan remains the same over the years. On the other hand, if significant changes are made to the plan, it will be necessary to update and re-approve it within six months after the port operator receives information on the changes. The bill includes a catalogue of examples of significant changes, but it is open-ended. This means that in many cases the port operator will undertake its own assessment of the materiality of the changes made.
The bill provides for the possibility of an exemption from the requirement of preparation and approval of a management plan for waste from ships in the case of small non-commercial seaports or marinas. However, the exemption will only be available if the port reception facilities for collection of waste from ships are integrated into the municipal waste management system. Thus, the bill would allow waste from moorings and marinas to be included in the stream of municipal waste and managed in accordance with general rules.
The port operator has a number of reporting obligations. Primary among these is a report on the operation and use rate of the port’s reception facilities for waste from ships. Under current law, the report must be prepared once every five years. The bill proposes to increase this frequency to once every two years. This will allow for greater control over the operation of the port’s reception facilities for waste from ships and, in turn, allow preventive action to be taken in a timely manner. After submission of the report, the director of the relevant maritime office will issue an opinion assessing the completeness of the report and its compliance with the statutory requirements. Currently, the regulations do not specify the procedure if the report needs to be supplemented. In such cases, the bill provides that the director of the maritime office will summon the port operator to supplement it within 30 days of receiving the summons. The report will be submitted on a form, which should make it easier to prepare it correctly.
In principle, the planned changes do not alter the existing content of the report. The only new element will be information on the amount of passively fished waste collected from ships. Based on the collected information, the director of the maritime office will prepare a summary statement to be passed on to the minister for maritime economy and then to the European Commission.
Under current law, preparation of a report is the only information and reporting obligation. The bill would impose an additional obligation on the port operator in the form of publicising and updating a range of information on the receipt of waste from ships. This obligation must be fulfilled by posting the information indicated in the act on a website and communicating it to the master of the ship, or representative, via the SafeSeaNet National System. The information on the website must be provided in Polish and English.
In the explanatory memorandum to the bill, the drafters point to the practical significance of the information obligation. Proper fulfilment of this obligation will facilitate the activity of shipowners, i.e. persons who, using their own or someone else’s ship, conduct activities in the maritime environment on their own behalf. Easy access to relevant information will improve the security of their operations and reduce related practical problems.
There is no doubt that a new law based on completely new mechanisms and adapted to the modern realities of port infrastructure was required. In the draft, quite a few solutions feature a common-sense approach to the situation in ports. For example, an entity managing a low-traffic sea marina used only by recreational boats will not have to prepare a management plan for waste from ships if it is connected to a municipal waste collection system. Also, the introduction of an obligation to collect cargo residues from ships and the obligation of selective waste collection at ports should be applauded. Certainly it will be beneficial to the marine environment to collect a stream of waste including only waste with the same characteristics and properties. Additionally, the bill provides detailed rules for oversight of application of the law, including the powers of the oversight body. The existing regulations do not provide sufficient guidance on this issue, and the introduction of clear rules should be welcomed.
Agata Matysiak, Dr Adrianna Ogonowska, attorney-at-law, Environment practice, Wardyński & Partners