A case initiated with respect to the norms of the binding regulation of the Ventspils City Council that define the environmental protection requirements for cargo vapour emission
On 6 September 2018, the 1st Panel of the Constitutional Court initiated the case “On Compliance of Para 100 and Para 139 of the Binding Regulation of the Ventspils City Council of 2 March 2012 No. 9 “Ventspils Free Port Rules” with Article 64 and the First and the Third Sentence of Article 105 of the Satversme”.
The Contested Norms
Para 100 of the Binding Regulation of the Ventspils City Council of 2 March 2012 No. 9 “Ventspils Free Port Rules” (hereinafter – Regulation No. 9) provides that, during cargo handling operations, the following environmental protection requirements must be complied with:
“100.1. When loading on a vessel oil products or chemical substances with steam pressure (according to Raid method) is equal to or exceeding 27.6 kilopascals (at 37.8C), or heavy fuel, crude oil or benzol, cargo vapour emission control systems (pursuant to the definition determined in Clause 1.2.13 of the International Maritime Organization Shipping Safety Committee Circular No. 585 “Standards for Vapour Emission Control Systems”), which comply with the solution of the best available technical method, shall be used. If a vessel shall not be equipped properly for the connection to the abovementioned systems, requirements laid down in Sub-clause 100.5 of these Regulations shall be complied with.
100.2. Volatile organic compounds (hereinafter referred to as VOC) emissions from cargo vapour emission control system shall not exceed 10 g/Nm3, and the terminal operator shall perform adequate monitoring, providing online data transmission to the Freeport Harbour Master office.
100.3. The terminal operator, which handles the substances specified in Sub-clause 100.1 of these Regulations, shall establish an odour monitoring system, providing online data transmission to the Freeport Harbour Master office. The Port Control shall assess the data received from VOC emissions and odour monitoring, and, if VOC limit specified in Sub-clause 100.2 or odour concentration 5 ouE/m3 on the border of the terminal territory shall be exceeded, the Port Control shall demand the terminal operator to take the necessary measures, including reduction of loading intensity. Prior to commencement of loading works of each tanker, the terminal operator shall send electronically the following information to the Harbour Master – the name of vessel, berth No., the copy of safety data sheet of the chemical substance or mixture and volume of loading.
100.4. The terminal operator, which performs discharging of heavy fuel from wagon tanks on the elevated railway structures, shall be obliged to provide that the odour indications caused thereby are not exceeding 5 ouE/m3 on the border of the terminal territory.
100.5. If, during cargo handling operations, VOC emission shall exceed the limit specified in Sub- clause100.2. or odour concentration shall exceed 5 ouE/m3 on the border of the terminal territory, the terminal operator shall immediately take the necessary measures to comply with the norms, including reduction of loading intensity.
Para 139 of Regulation No. 9: “The terminal operator shall provide compliance with the requirements specified in Sub-clause 100.1., 100.2., 100.3. and 100.4. of these Regulations on 31 May 2018, at the very latest.”
The Norms of Higher Legal Force
Article 64 of the Satversme: “The Saeima, and also the people, have the right to legislate, in accordance with the procedures, and to the extent, provided for by this Satversme.”
The first and the third sentence of Article 105 of the Satversme: “Everyone has the right to own property. [..] Property rights may be restricted only in accordance with law.”
The case has been initiated with respect to an application by the stock company “Ventbunkers”. The applicant is engaged in commercial activities with oil products in the territory of Ventspils Free Port and it has been issued B category polluting activity permit.
Pursuant to the contested norms, from 1 June 2018, the requirements regarding establishment of a vapour emission control system included therein must be met. The applicant notes that compliance with these requirements is linked to the investment of substantial financial resources. Likewise, in accordance with the contested norms, the Port Control may demand the applicant to reduce the loading intensity, which would immediately cause to it financial losses. Hence, the contested norms are said to restrict the applicant’s right to property as of 1 June 2018.
The applicant holds that the Ventspils City Council has established the restriction on the right to property included in the contested norms without the legislator’s authorisation and the damage caused by it to an individual outweighs the benefit that society gains from this restriction.
The Legal Proceedings
The Constitutional Court has requested the Ventspils City Council to provide a reply on the facts of the case and legal substantiation by 6 November 2018.
The term for preparing the case is 6 February 2019. The Court shall decide upon the procedure and the date for hearing the case after the case has been prepared.
Open in PDF: 2018-19-03_PR_par_ierosinasanu_ENG
Linked case: 2018-19-03