by Jonathan Wills, M.A., Ph.D., M.Inst.Pet.,
for Ekologicheskaya Vahkta Sakhalina
(Sakhalin Environment Watch); 25th May 2000
The Law on Offshore Wastes Discharges in Different Jurisdictions
The Convention for the Protection of the Marine Environment of the North-East Atlantic (known as the "OSPAR Convention") is the basis for national laws governing the discharge of offshore drilling wastes in the waters of the OSPAR signatory states: Belgium, Denmark (including, for these purposes, the self-governing province of the Faroe Islands), Finland, France, Germany, Iceland, Ireland, the Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom of Great Britain and Northern Ireland. OSPAR regulations thus cover all the oil-producing coastal states of Western Europe. The European Community is also a signatory, as are Luxembourg and Switzerland.
At present it is legal to discharge WBM cuttings in the offshore waters of the OSPAR signatory countries, provided the oil content is less than 1% by weight and the material has passed tests to show that it will bio-degrade over a specified time and will not bio-accumulate.
The OSPAR operating principles for regulating offshore discharges (See: OSPAR. 1996. PARCOM Decision 96/3 on a Harmonized Mandatory Control System for the Use and Reduction of the Discharge of Offshore Chemicals. Oslo.) take account of the persistence, toxicity or other noxious properties and tendency to bio-accumulation of the chemicals in drilling wastes. "These criteria," OSPAR states, "are not necessarily of equal importance for a particular substance or group of substances, and other factors, such as the location and quantities of the discharge, may need to be considered."
Annex A of the Paris Convention says:
The following substances are included in this Part.
i) because they are not readily degradable or rendered harmless by natural processes; and
ii) because they may either:
a. give rise to dangerous accumulation of harmful material in the food chain, or
b. endanger the welfare of living organisms causing undesirable changes in the marine eco-systems, or
c. interfere seriously with the harvesting of sea foods or with other legitimate uses of the sea; and
d. because it is considered that pollution by these substances necessitates urgent action:
- Organohalogen compounds and substances which may form such compounds in the marine environment, excluding those which are biologically harmless, or which are rapidly converted in the sea into substances which are biologically harmless.
- Mercury and mercury compounds.
- Cadmium and cadmium compounds.
- Persistent synthetic materials which may float, remain in suspension or sink, and which may seriously interfere with any legitimate use of the sea.
- Persistent oils and hydrocarbons of petroleum origin.
The following substances are included in this Part because, although exhibiting similar characteristics to the substances in Part I and requiring strict control, they seem less noxious or are more readily rendered harmless by natural processes:
a. Organic compounds of phosphorous, silicon and tin, and substances which may form such compounds in the marine environment, excluding those which are biologically harmless, or which are rapidly converted in the sea into substances which are biologically harmless.
b. Elemental phosphorus.
c. Non-persistent oils and hydrocarbons of petroleum origin.
d. The following elements and compounds: Arsenic, Lead, Chromium, Nickel, Copper, Zinc
e. Substances which have been agreed by the Commission as having a deleterious effect on the taste and/or smell of products derived from the marine environment for human consumption (OSPAR. 2000. Draft Measures Proposed by the OSPAR Working Group on Sea-based Activities (SEBA), February 2000. Annex 12: List of Substances/Compounds Liable to Cause Taint. OSPAR. Amsterdam. [Printed as Appendix 11 to this report]).
The OSPAR convention was opened for signature on 22 September 1992 and came into force on 25 March 1998. It replaced the former Oslo and Paris Conventions, but decisions, recommendations and all other agreements adopted under those conventions continue to apply, unless and until they are terminated by new measures adopted under the 1992 OSPAR Convention. The OSPAR Commission Secretariat in London has supplied this brief account of the history and functions of the organisation:
The grounding of the Torrey Canyon in 1967, and subsequent release of 117,000 tonnes of oil with disastrous consequences for the environment... stimulated the signature, in 1969, of the Agreement for Cooperation in Dealing with Pollution of the North Sea by Oil (the "Bonn Agreement").
The next important development in the growing general awareness of the dangers of pollution of the seas and oceans came with the agreement and signature of the Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft (the "Oslo Convention"). Again, as often is the case, it had taken a concrete example to remind the countries concerned that the unlimited deliberate dumping of (industrial) waste into the sea could lead to an unacceptable situation. This example was provided by a Dutch ship, the Stella Maris which, having sailed from the port of Rotterdam on 16 July 1971 to dump chlorinated waste in the North Sea, was obliged to return to port on 25 July (without carrying out her mission) because of the combined weight of public opinion and of the Governments of several countries. In February 1972, within eight months of this event, the Oslo Convention was signed, and it entered into force in 1974.
It was also felt necessary at this time to draw up a similar document, dealing not with the prevention of marine pollution by dumping, but instead with the prevention of marine pollution by discharges of dangerous substances from land-based sources, water-courses or pipelines. Negotiations on this topic resulted in the completion of the Convention for the Prevention of Marine Pollution from Land-Based Sources (the "Paris Convention") which was opened for signature in June 1974 and which entered into force in 1978.
The Oslo and Paris Commissions
The Oslo Commission was established to administer the Oslo Convention. Initially, the Commission's task was to regulate and control the dumping at sea of industrial wastes, sewage sludge and dredged material and the incineration at sea of liquid industrial wastes. The dumping of industrial wastes and sewage sludge and incineration at sea have now been phased out.
The Paris Commission was established to administer the Paris Convention. The Commission regulated and controlled inputs of substances and energy to the sea from landbased sources (via the atmosphere, rivers, or direct discharges) and also from offshore platforms. The Commission was involved in a thorough review of the use and manufacture of various substances in order to establish the best environmental practice or best available techniques to prevent pollution...
The OSPAR Convention
A meeting of the Oslo and Paris Commissions at Ministerial level was held in Paris on 21-22 September 1992 (MMC 1992). This meeting was attended by Ministers responsible for the marine environment of the 14 signatory states to the Oslo and Paris Conventions, by Switzerland and by a representative of the Commission of the European Communities.
The most important outcome of this Ministerial meeting was the adoption of a new Convention for the Protection of the Marine Environment of the North-East Atlantic (the "OSPAR Convention"), together with a Final Declaration and an Action Plan to guide the future work of the Commissions.
Although the OSPAR Convention did not finally enter into force until early 1998, for all practical purposes, the Oslo and Paris Commissions have worked as one entity since MMC 1992.
The new Convention, drafted to merge and modernise the Oslo and Paris Conventions, consists of a series of provisions and, amongst other things:
a. requires the application of:
i. the precautionary principle;
ii. the polluter pays principle;
iii. best available techniques (BAT) and best environmental practice (BEP), including clean technology;
b. provides for the Commission established by the OSPAR Convention to adopt binding decisions;
c. provides for the participation of observers, including non-governmental organisations, in the work of the Commission;
d. establishes rights of access to information about the maritime area of the Convention.
Contained within the OSPAR Convention, as adopted in 1992, are a series of Annexes which deal with the following specific areas:
- Annex I: Prevention and elimination of pollution from land-based sources;
- Annex II: Prevention and elimination of pollution by dumping or incineration;
- Annex III: Prevention and elimination of pollution from offshore sources; and
- Annex IV: Assessment of the quality of the marine environment.
The Convention also allows the adoption of additional annexes to protect the maritime area of the Convention, and the first new annex was adopted by the 1998 Ministerial Meeting of the OSPAR Commission (MMC 1998). This Annex V contains provisions with regard to the protection and conservation of the ecosystems and biological diversity of the maritime area. The Annex will enter into force once it has been ratified by at least seven Contracting Parties.
As a result of these agreements, the oil-producing states of Western Europe in effect work as a single country for the purposes of controlling offshore waste disposal, although the detailed implementation of the OSPAR regulations is still governed by national laws and European Union directives (with the exception of Norway, which is not an EU member but has, in general, stricter environmental regulations).
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