California Air Resources Board Issues Advisory Regarding How It Will Enforce Its At-Berth Regulations After January 1, 2017
“At-Berth Regulations”
In December 2007, the California Air Resources Board (“ARB”) approved the “Airborne Toxic Control Measure for Auxiliary Diesel Engines Operated on Ocean-Going Vessels At-Berth in a California Port” Regulation, commonly referred to as the “At-Berth Regulations.” The purpose of the At-Berth Regulations is to reduce diesel particulate matter (PM) and nitrogen oxides (NOx) emissions generated from the operation of diesel auxiliary engines on certain types of vessels when they are berthed at the following California ports: Los Angeles, Long Beach, Oakland, San Diego, San Francisco, and Hueneme (each a “California Port”). The At-Berth Regulations apply to container and refrigerated-cargo ship fleets whose vessels cumulatively make twenty-five (25) or more visits annually to one California Port, and passenger-ship fleets whose vessels cumulatively make five (5) or more visits annually to one California port (“Affected Fleets”).
Auxiliary Diesel Engine Operational Limits and Compliance Plan Submission Requirements
The At-Berth Regulations limits the number of hours during which vessels in Affected Fleets may operate their diesel auxiliary engines while at berth, i.e., three (3) or five (5) hours per visit, depending on whether or not a ship employs a synchronous power transfer process. The At-Berth Regulations also require auxiliary diesel engine power generation of an Affected Fleet to be reduced in relation to the fleets’ baseline power generation. Operators of Affected Fleets have two options to meet the Visit and Power Reduction Requirements: (1) turn off a vessel’s diesel auxiliary engines and connect to some other source of power, most likely grid-based shore power (“Shore Power Option”); or (2) use alternative control technology that achieve equivalent emission reductions (“Alternative Technology Option”).
Beginning January 1, 2017, operators of Affected Fleets relying on the Shore Power Option must ensure that at least 70% of the fleet’s visits to California Ports achieve the Visit Requirement’s 3/5 hour limitation (“Visit Requirement”), and that the fleet’s total auxiliary engine power generation must be reduced by at least 70 percent from the fleet’s baseline power generation (“Power Reduction Requirement”). Operators relying on the Alternative Technology Option must reduce NOx and PM emissions by more than 70% through use of ARB-approved technologies, such as barge mounted emission capture systems.
CARB Now Formally Recognizes Six Scenarios Where It Will Consider Excusing A Vessel’s Failure to Comply With
The At-Berth Regulation’s Requirements
On November 3, 2016, ARB issued an advisory in which it officially acknowledged that: “…it may not be possible for regulated entities to satisfy certain provisions of the [At-Berth Regulations] under certain circumstances. As a result, ARB [beginning January 1, 2017] ARB will offer six possible scenarios [potentially excusing non-compliance], … with the objective of providing flexibility to fleets that have equipped their vessels to use shore power or contracted to use alternative control technology to comply with the At-Berth Regulation.”
An operator of an Affected Fleet seeking ARB to excuses instances of non-compliance under one of the following six scenarios bears the burden of establishing that the requisite facts and circumstance existed. Presenting evidence that one of the scenarios existed will not necessarily result in ARB recognizing that. Rather, ARB will review all requests on a case-by-case basis. However, if an operator of an Affected Fleet succeeds, then otherwise non-compliant, offending visits may count towards its obligations under the Visit and Power Reduction Requirements.
- Scenario 1 – Terminal Cannot Provide Shore Power To Vessel. This scenario applies where a shore power-equipped vessel cannot connect because the terminal is not able to provide shore power and the terminal is actively working to restore the connection. This scenario might arise where, for example, the terminal is undergoing construction to upgrade its shore power infrastructure. This scenario is not implicated where the vessel’s shore power equipment cannot reach (or is incompatible with) the terminal’s connection, a shore power berth is occupied by another vessel, or a lack of labor from the terminal to assist with the connection.
- Scenario 2 – Commissioning Visits. During commissioning visits, a shore power-equipped vessel ensures its equipment is compatible with the terminal’s equipment. So long as a shore power connection is successfully achieved, the commissioning visit will qualify as a visit under the Visit Requirement – regardless of how long it takes to establish the connection. However, if a connection cannot be established on the first visit, the vessel’s operator can now apply to ARB for treatment of any subsequent visit as another commission visit.
- Scenario 3 – Operation of Auxiliary Engines Past 3/5 Hour Limit Due To Third-Party Interference. ARB has been informed of many circumstances that result in auxiliary engines operating for more than the 3/5 hour limit, including delays in lowering the gangway, securing the vessel, waiting for customs clearance, or waiting for labor to connect the vessel. Vessels which are able to successfully connect to shore power, but are not able to meet the 3/5 hour limit because of this sort of third-party interference, may request that ARB excuse that violation.
- Scenario 4 – Shore Power Equipped Vessel’s Use of ARB-Approved, Alternative Emission Control Technology. Vessel’s equipped to achieve compliance via the Shore Power Option that want to use approved alternative emission control technologies during a visit may now apply to have: (1) that visit count toward the fleet’s Visit Requirement, and (2) any reductions achieved on that visit by using approved, alternative technologies, count toward the fleet’s Power Reduction Requirement.
- Scenario 5 – Exemption For Testing Non-ARB Approved, Alternative Emission Control Technology. To incentivize testing new alternative technologies, ARB will now allow operators to apply for an “experimental exemption” from compliance so long as the test is conducted pursuant to a test plan approved by ARB.
- Scenario 6 – Compliance With Visit and Power Requirements’ Percentages Now Calculated Annually. Rather than accounting for the percentage of visits meeting the 3/5 hour limit and power reduction, and emission reduction percentages on a quarterly basis, these percentages can now be calculated on an annual basis. Affected Fleets that are unable to meet a quarterly requirement will not have the other three quarters of the year to adjust to meet the requirements.
Applying to ARB For Relief Under Six Scenarios
ARB has developed an Annual Reporting Form for operators to use when applying to ARB for relief under one of the above scenarios. The form, which identifies the information that needs to be established in order to prove a scenario existed, must be completed under the penalty of perjury. The form must be submitted on March 1st of the following year, at the same time operators are required to submit their annual compliance statement. ARB’s recognition of the foregoing scenarios will end when ARB expressly revokes the November 3, 2016 advisory, a copy of which is available here.
– Keesal, Young & Logan Maritime Law Group
This information has been prepared by Keesal, Young & Logan for informational purposes only and is not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between you and Keesal, Young & Logan. You should not act upon this information without seeking professional counsel.