New Ship Recycling Rules

The Commission last week proposed new rules aimed at ensuring that European ships are recycled in facilities that are safe for workers and environmentally sound.

The Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal regulates the disposal of ships at the end of their operational life when they need to be dismantled and recycled. The Waste Shipments Regulation (EC) No 1013/2006 implements the Basel Convention in EU law, as well as banning the export of hazardous waste to countries outside of the OECD (an amendment to the Basel Convention that has not yet entered into force internationally).

Enforcement of international rules have not proven effective in practice and not prevented unsafe ship dismantling Many European ships end up in ship breaking yards South-East Asia which lack basic safety measures needed to manage the dismantling of ships and the disposal of hazardous materials they contain. This results in risks for workers and extensive environmental pollution.

The proposal would transpose the 2009 Hong Kong Convention for Safe and Environmentally Sound Recycling of Ships with the aim of implementing the Convention quickly, without waiting for its ratification and entry into force, as this will take several years. This would set up a system of surveys, certification and authorisation for large commercial seagoing vessels that fly the flag of an EU Member State, covering their whole life cycle from construction to operation and recycling.  It should be noted that the Commission separately proposed that Member States ratify the Convention within 3 years of the entry into force of this proposal).

Scope of the proposal

The proposed Regulation would apply to all ships flying the flag of a Member State or operating under its authority except for:
• Warships, naval auxiliary or other ships owned by Member States but used for non-commercial government service 
• Ships of less than 500 GT (Gross Tons) 
• Ships operating throughout their life-time only in waters subject to the sovereignty or jurisdiction of the Member State whose flag they fly.

Requirements for ship recycling facilities and the European list

The proposal would require ship-owners to ensure that ships are only recycled in ship recycling facilities located in the EU or in an OECD member country prior to the publication of a list of approved facilities (the European List). After publication of the list, the ship-owner would have to ensure that the ship is recycled at a facility included on the European List

The Commission will create, through the adoption of an implementing act, the list of approved ship recycling facilities which would be published in the EU’s Official Journal within 3 years of the entry into force of the proposal. The list will include facilities both inside and outside of the EU. The list would be updated by the Commission through the adoption of further implementing acts.

In order to be included on the list a facility must provide evidence that it meets with the following requirements:
• Be designed, constructed and operated in a safe and “environmentally sound manner” (the ship recycling facility can demonstrate that waste management will be carried out in accordance with human health and environmental protection standards equivalent to EU standards).
• Put in place management and monitoring systems to prevent and minimise environmental effects caused by ship recycling which do not pose health risks to the workers concerned or to the population in the vicinity of the ship recycling facility. 
• Develop and approve a ‘ship recycling facility plan’ and an ‘emergency preparedness and response plan’ as well as ensuring access to for an emergency response equipment (such as fire-fighting equipment and vehicles, ambulances and cranes) to all areas of the ship recycling facility and providing a map of the boundary of the ship recycling facility and the location of ship recycling operations within it.
• Provide training for workers and the proper use of personal protective equipment and record incidents, accidents, occupational diseases and, if requested to do so report any incidents, accidents, occupational diseases  that would pose risks to workers’ safety, human health and the environment; 
• Ensure safe and environmentally sound management of hazardous materials and ensure that all waste from the recycling activity is only transferred to authorised waste management facilities to deal with their treatment and disposal. All hazardous materials present on board of a ship need to be contained to prevent any release of these hazardous materials into the environment and the control of any leakage, in particular in intertidal zones;
• The facility must also specify if it is authorised to carry out the removal of hazardous substances for each for each hazardous material referred to in Annex I and any additional hazardous materials which might be part of the structure of a ship along with the personnel that would be responsible and evidence of their ability to perform the removal.
• The facility must also state which waste management process will be applied at the facility and provide evidence that the waste treatment process will not endanger human health or the environment particularly in regards to water, air, soil, plants or animals, noise or odours or by affecting the countryside or places of special interest. In cases where waste management processes will be applied outside the ship recycling facility then the facility must also provide the name and address of the waste treatment facility and evidence that the waste treatment facility is authorized to treat the hazardous material.

The ship recycling facility would also be required to provide the permit, license or authorisation granted by its competent authorities to conduct ship recycling and specify the size limitations (maximum length, breadth and lightweight) of the ships it is authorised to recycle and any limitations and certify that it will only accept a ship flying the flag of an European Member State along with any necessary evidence that it could technically carry out the process.

Facilities outside of the EU

Recycling facilities outside of the EU can also be added to the approved list of facilities for the recycling of ships flying the flag of a Member State by applying to the Commission. The applicant needs to meet the requirements of the proposal and provide evidence for its assessment by the Commission.

The Commission decision to include a facility on the list of approved facilities would be taken following the procedure for implementing acts under the Lisbon Treaty. By applying for inclusion on the list the facility would also consent to be inspected by Commission officials or its agents.

Member State authorisation

Member State competent authorities would be allowed to authorise ship recycling facilities located on their territory for a maximum period of 5 years. Member States would also be required to create a list of the ship recycling facilities that they have authorised. The list has to be regularly updated and would have to be notified to the Commission within a year of the entry into force of this Regulation.  The Member State would also be required to withdraw authorisation from ship recycling facilities that no longer met the criteria and inform the Commission as soon as possible.

Requirements for ship owners concerning hazardous substances

The proposal would require ship-owners to draw up an ‘Inventory of Hazardous Materials’ specific to each ship that would have to be kept onboard which would provide evidence that the ship complies with restrictions of hazardous materials. This inventory would have 3 parts: 
• Part I - listing the hazardous materials referred to in Annex I (this lists a total of 15 substances, which in addition to those substances above, includes heavy metals - such as hexavalent chromium, mercury, lead and cadmium, SCCPs, brominated flame retardants such as HBCDD and radioactive substances) to the proposal and contained in the structure or equipment of the ship, their location and approximate quantities;
• Part II - listing the waste on-board the ship including waste generated during the operation of the ship; 
• Part III- listing the stores present on-board the ship once the decision to recycle it has been taken. 
Part I of the inventory is required to be updated throughout the operational life of the ship, then prior to recycling would have the other 2 parts added to it. This inventory has to be verified by the Member State whose flag is flown by the ship in question. The Commission can update the substances in Annex I to the proposal using the new procedure for delegated acts under the Lisbon Treaty.

The proposal would also prohibit the use of asbestos, polychlorinated biphenyls (PCBs) perfluorooctane sulfonic acid and its derivatives (PFOs) and ozone-depleting substances in the construction of all new ships.

Member States would be required to ensure that restricted substances are not used in ships at all times including when they are in ports, shipyards, ship repair yards or offshore terminals and to ensure that ships comply with these requirements.

Ship surveys and certification

The proposal requires ships to be surveyed by officers of the administrative authorities or other recognised organisation of the Member State. These include ‘initial surveys’ - before the ship enters into service to check the inventory of hazardous materials, ‘renewal surveys’ at least every 5 years to verify the inventory, ‘additional surveys’ - if requested by the ship-owner after a change, replacement or significant repair of the structure, or equipment, systems and fittings and a final survey prior to the end of service of the ship but before recycling.

The ‘final survey’ will verify if the inventory of hazardous materials complies with the requirements of the proposal and if the ship recycling plan reflects the information in the inventory that the ship recycling plan contains the correct information. 

Once a survey has been completed, an appropriate certificate must be provided. This has to be issued or endorsed either by the administration or by recognised organisation acting on behalf of the administration.

An ‘Inventory Certificate’ in the case of initial, renewal or additional surveys which must be accompanied by Part I of the inventory of hazardous materials – (the form of the certificate is set out in Annex IV to the proposal). This certificate is valid for a maximum of 5 years.

A ‘Ready for Recycling Certificate’ after the completion of the final survey accompanied by the whole inventory of hazardous materials and the ship recycling plan – (the form of the certificate is set out in Annex V to the proposal). This certificate is valid for a maximum of 3 months but can be extended for a single point-to-point voyage to the ship recycling facility. A ‘Ready for Recycling Certificate’ also has to be accepted by other Member States and has to be considered as having the same validity as a certificate issued by them. However, should the condition of a ship does not meet the criteria for the certificate, not issue or endorsed by an appropriate authority or where the renewal survey is not completed at intervals specified by the administration then it will not be valid. 

The Commission can update the form of the certificates through the new procedure for delegated acts under the Treaty of Lisbon.

Preparing a ship for recycling

The proposal sets out general requirement for ship-owners when preparing a ship for recycling, these would include: 
• minimising the amount of cargo residues, fuel oil and ship generated wastes remaining on board, update; 
• completing the ‘Inventory of Hazardous Materials’;
• have a valid 'Ready for recycling certificate' prior to recycling; 
• ensure that tankers arrive at recycling facilities with cargo tanks and pump rooms in a condition that is ready for certification as “safe-for-entry” (meaning the that the oxygen content and flammable and toxic vapours in the ship are within safe limits, work breaking the ship will not produce the uncontrolled release of toxic materials or the unsafe concentration of vapours) and “safe-for-hot work” meaning that the ship is in a non-explosive condition so that electric arcs or  welding equipment (or other operations that can produce sparks) can be used safely. 
Ship recycling contracts

The ship-owner and the approved ship recycling facility would be required to enter into a contract for each ship that needs to be recycled. The contract would apply from the date of the request for the final survey until completion of the recycling of the ship.

Obligations for Ship Owners

The contract would have to stipulate that the ship-owner applies the general requirements for the preparation of recycling and provide the ship recycling facility with all the ship-relevant information for the necessary for the development of the ship recycling plan.

The ship-owner would also be required to take back the ship prior to the start of the recycling or after the start of the recycling, (if this is technically feasible) where hazardous materials on board the ship do not appear on the inventory of hazardous materials and do not allow for the safe recycling of the ship.

Obligations for ship recycling facilities

The contract will require the ship recycling facility to develop a ship-specific ‘Ship Recycling Plan’ taking into account of the contract agreed with the ship-owner.

The plan would have to be drafted in the language of the country authorising the facility and translated into English, French or Spanish (if the language is not one of these three). It would include information on the maintenance, monitoring of the “safe-for-entry” and “safe-for-hot work” criteria and information on the type and amount of hazardous materials and waste generated by the recycling of the specific ship and how these materials will be dealt with by the recycling facility.

In cases where more than one ship recycling facility needs be used, the different ship recycling facilities must be identified and recycling activities specified in the order in which they occur at each authorised ship recycling facility.

Ship recycling facility would be required to report to Member States administrations to provide them with 2 weeks’ notice of the intention to recycle a ship in order to enable the administration to prepare for the survey and certification.  The ship recycling facility would also be required ensure all waste from the recycling operation is dealt with by facilities authorised to deal with the treatment and disposal of such waste.

Once partial or total recycling of a ship is completed in accordance with this Regulation, the ship-recycling facility would be required to complete a report on the completion of the ship recycling which must be then be sent to the ship-owner and the competent authority. The format for the report is set out in Annex III to the proposal.

The Commission can update the form of the report on the planned start of ship recycling Annex II and the statement of completion of ship recycling through the new procedure for delegated acts under the Treaty of Lisbon.

 Member state reporting

Member State would be required to provide a report every two years to the Commission from 31 December 2015. The Report would contain: 
• a list of the ships flying their flag to which an inventory certificate has been issued, and the name of the recycling company and the location of the ship recycling facility as shown in the ready for recycling certificate;
• a list of the ships flying their flag for which a statement of completion has been received;
• information regarding illegal recycling and follow-up actions undertaken by the Member State.

Penalties and enforcement

Member States would also be required to apply effective, proportionate and dissuasive penalties. Member States would also be required to co-operate with one another to prevent breaches of the rules.  The penalties would apply in the following cases:
• Ships that did not have on board an inventory of hazardous materials 
• Ships that were sent for recycling 
- without meeting the general requirements for the preparation, 
-  without an “inventory certificate” or a “ready for recycling certificate” 
- without notification in writing to the administration 
- which were recycled in a manner which did not conform with the ship recycling plan

A minimum penalty corresponding to the price paid to the ship-owner for its ship is set for a ship sent for recycling in a ship recycling facility not included in the European list. Ships sold and sent for recycling in a non-approved facility within 6 months of the sale, would receive jointly imposed penalties, applied to last and penultimate owner if the ship is still flying the flag of an EU Member State or only imposed to the penultimate owner if a ship is no longer flying the flag of EU Member State.

Exemptions can be introduced by Member States in the case where the ship-owner has not sold its ship with the intention to have it recycled. Evidence supporting the ship-owner's claim (including a copy of the sales contract) would have to be supplied.

Requests for action

The proposal would also allow those affected or likely to be affected by breaches to the proposal to inform the competent authority in the Member State and request action. 

NGO’s, whose interest is promoting environmental protection, must be considered has having sufficient interest to request action and would have to be recognised in the administrative law of a Member State as having legal standing for the purpose of alleging the impairment of a right.

A request for action has to be accompanied by relevant information supporting the claim. If the evidence submitted is deemed “plausible” then the competent authority can consider the request. The competent authority would be required to give the recycling facility an opportunity to provide its opinion unless there was a risk of an imminent breach.  The decisions of the competent authorities would also be required to be able to be challenged under administrative review procedures.

Next steps and entry into force

The proposal will now be sent to the European Parliament and the Council for examination following the ordinary legislative procedure. The Regulation will enter into force 1 year after it is published in the Official Journal. The Regulation will be reviewed 2 years after its entry into force.