Refined regulations remain restrictive for offshore bunkering

DFFE releases amended draft regulations for STS operations

After announcing his intention to gazette draft regulations as a follow up to those released in February this year to manage the environmental aspects of offshore bunkering, the Minister of Forestry, Fisheries and the Environment’s updated regulations were officially published this past Friday and clearly extend the intended scope significantly. Editor, Colleen Jacka, reads through the new regulations and reports on some of the changes and implications.

No longer confined to offshore bunkering, the most recent regulations have been updated to include all offshore ship-to-ship (STS) transfers as highlighted by the change in the actual title of the regulations.

Based on my read of the new regulations, the Minister can expect to receive some push back from the bunker industry who actively engaged with the original draft. Members of the public and stakeholders will have 30 days from the publication date to submit their comments on the draft regulations.

The gazetting of the first set of draft regulations mobilised the bunker industry to establish an association to respond in a unified voice to the Minister. Many of the concerns voiced in the industry seemed to relate to the apparent overlapping of the Department of Forestry, Fisheries and the Environment’s (DFFE) oversight with that of the South African Maritime Safety Authority’s (SAMSA).

That some of the content in Minister Dion George’s February regulations contradicted that of the Marine Notice issued by SAMSA on offshore bunkering was not lost on the industry who sought to understand which of the two entities’ directives would trump the other’s.

Speaking at the Marine Emergency Response and Preparedness Workshop hosted by AMSOL in Gqeberha last month, Captain Ravi Naicker of SAMSA responded to questions on the subject and confirmed that the authority was proactively working with the DFFE to ensure that the two sets of regulations aligned.

Reading the regulations gazetted on Friday, however, some areas of misalignment remain, and it will be interesting to see whether SAMSA issues an updated Marine Notice to rectify these if the DFFE’s regulations are finalised in their current form.

With a new title, the regulations are no longer restricted to bunkering. They now cover all STS operations which are defined as “the transfer at sea of liquid bulk cargo, including chemicals, oil, petroleum products, liquified petroleum gas or liquified natural gas from one vessel to another outside an operational harbour area and includes bunkering”.

It is interesting to note that the actual definition as changed to exclude the words “vessel’s cargo” – an exclusion that emphasises the fact that the regulations only pertain to liquid bulk cargo.

As such the regulations cover all STS operations as defined above and the reference to bunkering throughout the document has been updated to ship-to-ship transfers.

Prohibitions

There are some notable changes about where and when STS operations will be permitted including the shift from five nautical miles of the high-water mark (in the February regulations) to three nautical miles of the high-water mark in the July regulations.

Nighttime operations, which were completely prohibited in the first version of the regulations, now benefit from some leeway.

Nighttime operations, which were completely prohibited in the first version of the regulations, now benefit from some leeway. STS operations can be undertaken at night with a SAMSA-approved plan to detect and respond to spills after dark.

While the February regulations were very specific in prohibiting operations within designated areas in Algoa Bay, the current regulations reference marine protected areas as a more overarching concept – possibly to broaden the relevance of the regulations for potential new locations.

Conversely, the reference to weather conditions in the new regulations are specific to Algoa Bay. They state that the Minister will determine the weather conditions in writing to any operator intending to undertake STS operations elsewhere along the coast.

It seems unclear as to whether these conditions have already been considered or whether the Minister will consider each request as it arises.

The Minister does consider SAMSA’s Code for Bunkering Practices and notes that STS operations should be undertaken in weather conditions outlined therein. Despite this, however, there is still a misalignment between SAMSA’s Code and the new regulations in relation to the weather window that is considered safe.

Although the latest regulations relax the stipulations for safe weather, they are still notably different from those allowed by SAMSA, which allows for limited operations in certain conditions.

Although the latest regulations relax the stipulations for safe weather, they are still notably different from those allowed by SAMSA, which allows for limited operations in certain conditions.

With a specific section on limiting operations in Algoa Bay, one wonders whether the regulations will have to be revised each time an additional location for offshore bunkering is identified, or whether this is an indication that no further opportunities for coastal operations will be permitted.

The Minister does not even allude to this by providing a clause that would determine how future locations would be administered in terms of stipulations with regard to the number of operators, vessels or other restriction.

In the case of Algoa Bay, however, the new regulations soecify that a maximum of three STS operators will be permitted and that no more than six STS tankers may operate within the Bay at any one time.

This represents a slight shift from February. While the number of operators has decreased from five to three – the overall number of vessels permitted has increased from five to six. This means that, should the maximum permitted number of operators offer services in Algoa Bay, each of them would be able to deploy two vessels.

There is likely to be some push back from the industry on this particular provision given the contention that the previous restriction of only five operators was contentious – particularly in the light of the number of already approved licences by SAMSA. While not all of the licenced operators are currently active, industry sources note that more than three companies already possess permission to start operations.

While not all of the licenced operators are currently active, industry sources note that more than three companies already possess permission to start operations.

It would be interesting to see whether, in the absence of three operators, any one company would have the appetite to put more than two vessels into service since the regulations do not specifically prohibit this.

The Minister also prohibits any STS operations within Anchorage 2 for a period of five months from 1 April to 31 August.

Mitigating spills

The requirement to deploy a dedicated tug for the duration of each bunker operation has been removed from the latest regulations, but operators are tasked to ensure that a response vessel is on standby and able to respond within 30 minutes of an incident occurring.

Explaining this amendment in his introduction, the Minister writes; “The requirement to deploy a static towing tug has been removed as this would have created a safety hazard.”

These safety issues were highlighted by industry in response to the regulations published in February, but it is also likely that responses from industry would have noted the lack of availability of static tugs for each vessel undertaking transfers as well as the impact such a directive would have on the economic viability of operations.

The lack of defining criteria for a suitable response vessel should be noted, however. There is currently some concern from stakeholders that the vessels identified for response in Algoa Bay are not adequately equipped or designed to respond to larger spills.

Outside of the removal of the tug requirement, the section on mitigating and avoiding spills remains largely unchanged including the need to deploy curtain booms prior to each operation. This remains another area of contention for the industry who noted that this requirement is also at odds with the overall safety of bunkering operations.

Specialised training

The DFFE’s listed areas of training are also interesting. While STS and bunker operators employ crew with specialised skills who are highly trained to provide very specific services within the marine environment, the DFFE seems to believe that they should also be required to possess skills more attuned to marine biologists.

Training requirements have been updated in the latest regulations to require crew members to be able to “identify marine mammals and seabirds common to the area in which ship-to-ship transfer takes place.” The wording, which was not included in the first version of the regulations, seems to indicate that crew members should be able to name specific species by sight.

It is now no longer enough for the crew to note the presence of marine life in the area in order to ensure avoidance, but the Minister expects them to be able to accurately identify them while engaged in critical marine operations.

In addition, while the previous iteration of the regulations as they related to training were manageable as in-house initiatives, the new version stipulates that the programme must be developed by an independent specialist.

One of the requirements within the definition of this specialist requires that they not operate or have interests in any business in the maritime industry. One must wonder whether an independent specialist that is capable of providing this sort of training could be found outside of the maritime industry?

Constant wildlife monitoring

The need for wildlife monitoring remains stringent in the newly gazetted version of the regulations with the DFFE calling for a crew member to be appointed to keep a constant watch for marine mammals and penguins 30 minutes ahead of STS operations as well as throughout the transfer.

This requirement effectively sees one crew member no longer able to fulfil their STS duties and will most likely result in the need for operators to employ additional crew.

The Minister has also not reviewed the prohibition of operations if a marine mammal or penguin is seen within 500 metres of the transfer site. Given the stipulated requirement for booms to be deployed for every operation, it does seem overly onerous to prevent transfers if wildlife is within 500 metres.

Collisions with marine wildlife are less of a focus in this round. The requirements to reduce vessel speed when marine wildlife is sighted within 1km has been removed as has the need to report any collisions with wildlife. Operators will, however, still have to report on any injured, entangled, oiled, disorientated or deceased “marine mammal, turtle or seabird”.

The need to report any ringed, banded or tagged seabird has also been excluded.

The lack of inclusion of specific mention of penguins in this reporting is probably an oversight given the Minister’s description of the regulations as a measure to prioritise the conservation of the critically endangered African Penguin.

Environmental management plan

Currently employing environmental management plans that comply with SAMSA requirements as well as international oil company standards, bunker operators were understandably concerned that the reference to such a plan in the DFFE’s regulations do not align with a uniform set of standards that takes cognisance of existing legislation or national plans.

Indeed, it would make more sense for the DFFE, in collaboration with the Department of Transport and SAMSA, to develop an STS environmental management plan for the sector rather than to call on individual operators to engage an independent specialist to produce one for approval.

New requirements to appoint an independent specialist to monitor the compliance with the plan and to report on such on a quarterly basis have been added to the regulations.

New requirements to appoint an independent specialist to monitor the compliance with the plan and to report on such on a quarterly basis have been added to the regulations – and the Minister has reserved the right to review the approved management plan if he deems it necessary.

The DFFE’s mandate to protect the environment and the need to protect the endangered African Penguin remain valid, but maritime stakeholders will be pushing to ensure that there is a viable opportunity to grow an industry sector that has considerable direct and indirect benefits for the country and the Eastern Cape.

While there have been some substantive changes to the initial regulations, many of the concerns raised previously are likely to persist with the latest revision. It will be interesting to see how the DFFE and the Minister respond to further input and to watch how these regulations evolve further.