Legal Protection of the Marine Environment from Oil and Petroleum Product Spills

Svetskiy Arseniy Vladimirovich ORCID: 0000-0002-0678-4841 Junior Researcher of the Environmental, Land and Agrarian Law Sector of the Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Znamenka str., 10 arseniy1107@gmail.com Other publications by this author

Today it is difficult to imagine the modern world without the use of fossil fuels such as oil or natural gas in various branches of economic activity. However, with an increase in the volume of production and use of oil and petroleum products, the risk of environmental pollution increases proportionally. Accidents in the oil industry are not uncommon, and their consequences for the marine environment can be fatal. A decade later, oil pollution may continue to have a negative impact on marine organisms, which causes significant damage to the ecosystem of the world ocean. (URL: http://www.npacific.ru/np/sovproblem/oil_sea/vozdeistvie/razliv/public1.htm#:~:text=Published%20 data%20 oil spills%20%20 often,and%20 its%20 effects%20 on %20 organisms. (accessed: 12/28/2022)).The chemical composition of crude oil is a complex mixture of organic compounds, while it varies significantly depending on the source of its origin.

The viscosity and other properties of organic oils are strongly influenced by the ambient temperature, as higher temperatures accelerate the evaporation, dissolution and biodegradation of oil compounds. Petroleum products last the longest in soft sediments (for example, sandy or silty bottom soils) and on coastlines protected from strong wind and waves. As a rule, rocky headlands are quickly cleared by waves and tides. Oil pollution of bottom sediments can be very long-term, and in several cases long-term effects on organisms living on the seabed have been observed ^{[3, p. 18-26]}.

It is known that in the event of an oil spill, seabirds belong to one of the most vulnerable groups of animals, since even a small amount of fresh oil can lead to their death due to the destruction of the waterproofing of their plumage, which can lead to deterioration of its thermal insulation properties, as well as loss and buoyancy and eventually death from hypothermia, starvation or drowning ^{[10, pp. 92-95]}. Fish and other living organisms are exposed due to oil and petroleum product spills when eating contaminated food and water, as well as when in contact with oil and petroleum products while driving. Marine animals can absorb the components of crude oil both passively – by diffusion through the gills (fish) and lungs (birds and mammals), and actively, for example, during the feeding process. In the Arctic, these negative impacts are amplified, as cold water leads to hypothermia faster.

Assessment of the state of animal organisms by certain biomarkers indicating changes at the lowest levels of biological complexity (molecular, cellular, tissue level) provides an opportunity for "early warning" of deterioration of the health of individual organisms and the ecosystem as a whole. Such biomarkers were proposed for use by Directive 2000/60/EC of the European Parliament and of the Council of October 23, 2000 (O.J. 2000. L 327. P. 0001-0073), which establishes framework provisions for the activities of the European Community in the field of water policy. In addition, marine monitoring programmes are increasingly including biomarkers in the assessment of the biological effects of pollutants. Assessment of the consequences of oil spills is necessary to obtain information on the maintenance of biodiversity and the integrity of marine communities and food webs, as well as to protect critical habitats (URL: https://enveurope.springeropen.com/articles/10.1186/s12302-015-0039-4 (date of application: 01.02.2023)).

It is worth mentioning the GRACE project, which is aimed at developing, comparing and evaluating the effectiveness of various methods of oil spill response in a cold climate, funded by the European Union. The conference of the project participants in 2019 was attended by representatives of the Baltic region countries (Denmark, Finland, Norway, Sweden, Estonia), as well as representatives from the USA and Canada. The results of the project are available for use by international organizations that plan and implement cross-border cooperation to eliminate oil spills in the Arctic marine areas. In the GRACE project, conclusions were drawn about the spatial distribution of oil spills in the Baltic Sea, they are mostly located on the main routes of ship traffic. After the conclusions were made, SmartBoy and FerriBox systems equipped with UV fluorometers began to be used. Sensors detect the concentration of polycyclic aromatic hydrocarbons (PAHs), which are compounds contained in crude oil and petroleum products (URL: https://www.grace-oil-project.eu/en-US/Final_conference (date of application: 03.02.2023)).

In order to minimize the harm caused to the environment from the negative consequences of the transportation of fossil fuels, first of all it would be logical to influence the causes of such harm. The analysis of the relevant risks during the sea transportation of hydrocarbons makes it possible to identify from them such as pollution of the water area following an emergency oil spill, probable ignition of fossil fuels, the likelihood of an explosion both on board during transportation and in port at terminals for the reception/shipment of liquefied natural gas (LNG) or oil terminals. Oil spills can also occur due to various emergency and other unforeseen situations that arise with ships at sea: the impact of adverse weather conditions, technical malfunctions of the vessel, collision with other vessels, pirate attacks, etc. When oil products spill in the water area, there is also a threat of pollution of the coastline. Over the past decades, the number of accidents at sea related to the extraction and transportation of hydrocarbons has decreased. However, the horrific consequences of the earlier major spills have not yet been completely eliminated.

Two cases of oil spills in the United States show that the negative impact of oil on the environment can persist for decades. The residual oil that got into the environment after the accident of the Exxon Valdez tanker, which ran aground in 1989 in Prince William Bay, remained there many times longer than predicted values. As a result of the accident, about 11 million gallons of oil turned out to be in the sea. 16 years after the accident, it was discovered that the oil had only weathered in the coastal strip around the spill site. Scientists from North Carolina have found that it will take about 30 years to restore the ecosystem (URL: http://www.ecoindustry.ru/didyouknow/view/17.html (accessed: 04.01.2023)). The second largest oil spill is the pollution of the Gulf of Mexico by oil as a result of the accident at the Deepwater Horizon oil production platform, which occurred in the spring of 2010 and caused enormous damage to the marine environment, marine and coastal eco-systems. The fire and explosion occurred as a result of a number of reasons, such as the human factor, technical problems, imperfection of the platform design. In addition, significant damage was caused to the economy of the district. Approximately 650 thousand tons of oil appeared on the surface of the sea for almost 90 days. The oil slick spread on the surface of the sea with an area of about 75 thousand square kilometers (URL: https://www.britannica.com/event/Deepwater-Horizon-oil-spill (accessed: 10/25/2022)). In 2017, over the past 7 years after the accident in the Gulf of Mexico, the United States of America spent more than $144 billion to eliminate the consequences of the Deepwater Horizon accident (URL: https://onlinelibrary.wiley.com/doi/abs/10.1002/jcaf .22306 (accessed 03.01.2023)).

Oil spills have occurred and will continue to occur in various marine areas around the world, while exploration, production and transportation of oil continues on our planet using technologies that do not fully ensure environmental safety. The elimination and prevention of oil spills in the sea is a complex task, the solution of which largely depends on the various characteristics of a particular water area. Thus, the degree of damage caused by oil spills to local ecosystems, as well as the effectiveness of various liquidation technologies, largely depend on prevailing environmental conditions and the availability of available resources for their immediate elimination.

In the field of prevention of environmental damage, there are a number of regional features related to both climatic, physical, geographical and biological features, and the intensity of economic, including transport activities.

In the Arctic marine environment, spilled oil can freeze into the ice sheet in various ways, and such conservation is expected to reduce evaporation, dissolution and degradation. Conservation also implies that oil will retain most of its potential toxicity after leaving the ice (URL: https://repository.library.noaa.gov/view/noaa/2698/noaa_2698_DS1.pdf (accessed: 07.01.2023)). The assessment of the distribution routes, release rate and chemical characteristics of the remaining oil provides a basis for assessing the possible environmental risk ^{[4, p. 978-982]}. In polar and subpolar regions, marine ecosystems are particularly vulnerable to oil spills, mainly due to the cold and slow degradation of spilled oil compounds. In addition, the cold and often ice-covered sea creates serious problems for taking measures to combat the oil spill. Along with other differences in critical environmental characteristics, it is obvious that each marine region needs a risk assessment.

In the Arctic parts of the North Atlantic, the risk of oil spills increases due to oil and gas exploration, as well as the general intensification of economic activity and shipping in the region due to warming processes. Navigation and operations in ice-covered waters present additional difficulties for oil spill response and increase the risk of ship accidents and related oil spills. The Arctic seas are important areas for fishing, as well as for seabirds and marine mammals. Therefore, oil pollution in the cold subarctic and Arctic seas can have serious environmental consequences, as well as a large socio-economic impact associated with fishing. Most of the accidents with the subsequent oil spill before 2015 were due to the fact that many vessels did not meet the necessary criteria for the transportation of petroleum products, namely, they lacked a double hull. At the same time, one of the significant changes in Annex 1 of MK MARPOL 73/78 (International Convention for the Prevention of Pollution from Ships) since the adoption of the protocol in 1978 has been the requirements for the double-hull design of new tankers and for the gradual decommissioning of existing single-hull ones. There is a separate international document regulating issues in the Arctic region – the Polar Code (hereinafter referred to as the PC) (Resolution N MSC.385(94) of the International Maritime Organization "International Code for Ships Operating in Polar Waters (Polar Code)", entered into force including for Russia on January 1, 2017 // Official Internet portal of legal information http://www.pravo.gov.ru , 26.12.2017). The requirements for the design of the vessel are also fixed in Part II-A of the Polar Code.

The Baltic Sea is the inland sea of Eurasia. It should be noted that in winter about 40% of its surface is covered with ice, and its thickness can be up to 1 meter. Accordingly, spills frozen in ice are much more difficult to eliminate in comparison with oil products located on the water surface (URL: http://esimo.oceanography.ru/esp1/index.php?sea_code=1&section=9&menu_code=4580 (accessed: 07.01.2023)). With a coastline shared by nine industrialized countries (Sweden, Finland, Russia, Estonia, Latvia, Lithuania, Poland, Germany, Denmark), it provides approximately 15% of the world's maritime traffic, including the transportation of various types of oil. Since a large amount of oil is used, transported and stored in this region, its spills are considered a serious threat to the ecosystem of the Baltic Sea (URL: https://www.sciencedirect.com/science/article/pii/S0944501313000219 ?via%3Dihub (accessed: 02.01.2023)). The annual growth of cargo traffic also increases possible environmental risks ^{[1, p. 1-5]}.

It should be noted that pollution of the marine environment as a result of the dumping of oil and petroleum products from ships is much greater than as a result of marine accidents, and is mainly found on the main shipping routes ^{[2, pp. 1883-1886]}. In accordance with paragraph 3 of Article 2 of the International Convention for the Prevention of Pollution from Ships, "discharge" is any discharge from a ship, no matter what causes it, and includes any leakage, disposal, spill, leakage, pumping, ejection or emptying. Also, this convention provides a list of actions that are not dumping. For example, emissions of harmful substances resulting from exploration, development and related processes in the oil and gas industry, as well as emissions of harmful substances for legitimate scientific research to reduce or limit pollution at sea. Regular aerial surveillance of deliberate oil spills has been conducted in the region since 1988. According to statistics, the year that accounted for the most illegal oil discharges is considered to be 1989, when 763 cases of illegal oil dumping were registered during aerial surveillance for more than 3 thousand flight hours (URL: https://ria.ru/20100507/231653135.html (date of application:28.02.2023)). Despite the decrease in the number of oil discharges in the Baltic region, it is necessary to use various equipment for monitoring oil spills, their instant detection, as well as regulating at the international level the use of specific methods for the elimination of oil spills and petroleum products using the most modern and appropriate methods for the specifics of the region.

Environmental protection of the region is carried out within the framework of the Convention for the Protection of the Marine Environment of the Baltic Sea Area – the Helsinki Convention (HELCOM). It was first signed in 1974 by seven countries of this region. At the moment, nine countries are parties to the convention, and the latest amendments entered into force in November 2008 (URL:http://www.helcom.ru/about (accessed: 03.01.2023)). The document, consisting of 38 articles, highlights various aspects of the joint activities of the Baltic States to ensure the environmental safety of the water area, and also contains various technical issues of organizing cooperation between the countries parties to the convention. This document establishes the area of operation of the Convention (Article 1), defines pollution, burial, etc. (Article 2), also highlights the basic principles and obligations for the parties (Article 3). Article 14 and Annex VII to this convention highlight the issue of cooperation in combating marine pollution. As for the readiness to eliminate the consequences of oil pollution, in order to respond more quickly to the situation, it is necessary, in addition to using the capabilities of aerial and satellite surveillance, to apply a modern methodology for predicting oil drift.

Today, various methods are used to eliminate oil spills in order to minimize their environmental consequences. To detect oil spills, vessels equipped with a radar that can detect oil at sea are used. The disadvantage of using ships is a fairly limited detection radius. However, these vessels are a relevant choice in cases where oil sampling is necessary.

In addition, the main systems for monitoring marine oil pollution are aircraft and satellites equipped with remote sensing devices ^{[6, pp. 4-9]}. Remote sensing devices available for detecting oil spills include infrared video and photography, infrared imaging, onboard laser and space optical sensors, as well as onboard and space radars with synthesized aperture (SAR) ^{[7, pp. 3-7]}. With different sizes of emergency spills, different systems of their fixation are used. For example, remote sensing sensors help identify the most minor spills. In larger accidents, the expansion of the oil spill and its further development makes it possible to determine the method of remote satellite sensing. Equipment that allows monitoring detection and monitoring the dynamics of their development must have technical characteristics that can ensure its use around the clock in various weather conditions. With regard to oil spill response measures, the description of the type, location, scale and condition of oil spills in the sea is of paramount importance for predicting their trajectory, as well as sections of the coastline that may be contaminated (URL: https://enveurope.springeropen.com/articles/10.1186/s12302-019-0227-8 (accessed: 03.01.2023)). There are two sensors: SAR (Synthetic Aperture Radar, or Synthetic Aperture radar) and SLAR (Side-Looking Airborne Radar, or on-board side-view radar). Oil spills are detected, their location and scale are described using remote sensing images. Radar sensors (SAR) are best used in adverse weather conditions, they are effective for immediate warning of oil spill. Aerial surveillance is characterized by high costs and is not as effective when covering a large area, however, aircraft equipped with SLAR are suitable for use in determining the pollutant, scale and type of spill (URL: https://www.geo.university/pages/blog?p=oil-spill-detection-with-sar-images (accessed: 06.01.2023)).

Various methods and means are used to eliminate emergency oil spills in marine areas.

Oleophilic skimmers, which are the most used type of mechanical equipment for spill response, are widely used directly at the accident site. This equipment is designed to collect viscous petroleum products and debris from the water surface. They are most effective when collecting petroleum products of medium viscosity from 100 to 2000 centistokes ^{[5, p. 3-10]}.

Another method of eliminating an emergency oil spill is the ignition of an oil slick and its controlled combustion. This method has a high potential for application in Arctic conditions ^{[8, pp. 75-81]}.

The use of dispersants that emulsify the oil film contributes to the dispersion of small oil droplets in a large volume of seawater and accelerates its decomposition under the influence of external physical and other factors ^{[9, p. 2-11]}. This method was the main one in the liquidation of the consequences of the accident on the Deepwater Horizon platform in the Gulf of Mexico. However, the experience of using dispersants is insufficient, there is no data on the effectiveness and dangerous consequences of their use in the Arctic regions. These substances are not recommended for use by the Helsinki Convention, respectively, they are also not used in the Baltic Sea (HELCOM). Taking into account the above example, it seems necessary to pay closer attention to other regions, the climatic and geographical features of which may complicate the application of certain methods for the elimination of the accident.

Norms aimed at regulating activities for the prevention and elimination of accidental oil spills at sea are contained in a number of international acts. These documents contain various rules, standards and recommendations for a vessel carrying petroleum products or equipment used in the extraction or transportation of fossil fuels, as well as recommendations on the regulation of actions related to the elimination of oil and petroleum products spills at sea.

One of the main international acts regulating activities at sea is the 1982 UN Convention on the Law of the Sea.

This agreement regulates the procedure for the sovereign and joint use of maritime space, it also defines the division of maritime space into internal waters, territorial sea, contiguous zone, exclusive economic zone, and so on. However, the Convention contains an article on the polar region – Article 234 "Ice-covered areas", which grants coastal States the right to adopt national laws and regulations to prevent, reduce and control marine pollution from ships in ice-covered areas within their economic zones. This provision is one of the main international legal grounds for establishing the control of the Russian Federation over navigation in the area of the Northern Sea Route.

The International Agreement on the Safety of the marine Environment is the International Convention on the Prevention of Pollution from Ships MARPOL 1973 (with protocols of 1978 and 1997), which provides for a set of measures to prevent operational and accidental pollution of the seas by oil. For example, the rules of the convention provide for the use of a double hull design of a tanker to reduce the risks of an accident, and it also contains special rules for the carriage of heavy grades of oil as cargo (Rules 20 and 21). In addition, the document contains provisions on combating various types of pollution from ships. The Convention imposes a ban on the discharge into the sea of oil and petroleum products, as well as other toxic substances, wastewater in the entire water area of the World Ocean, except in cases of emergency. The Convention also establishes unified international standards for the prevention of pollution and establishes special areas in which a special strict regime is established, where the dumping of hazardous substances is strictly prohibited. In addition, vessels during their stay in a special area are obliged to keep on board all oil residues and sediments, dirty ballast and washing water, and then hand them over to receiving devices ^{[12, pp. 225-226]}.

It should be noted that most of the marine accidents associated with oil spills occur either in places of fossil fuel extraction or on the main transport routes. Oil spills mainly occur during shipment, operation of the vessel, bunkering operations due to damage to the vessel as a result of an accident, malfunction of the equipment used. First of all, strengthening international cooperation is necessary to prevent and eliminate oil spills. In particular, it seems appropriate to jointly develop by the countries engaged in the production of petroleum products at sea, as well as its transportation by sea, based on the existing national experience in the field under consideration, uniform standards regulating methods of preventing and eliminating accidents, including the fastest possible response to them.

In the Russian Federation, a number of regulatory legal acts are devoted to problems related to the elimination of oil and petroleum product spills. For example, Article 16.1 of Federal Law No. 155-FZ of July 31, 1998 "On Internal Sea Waters, Territorial Sea and Adjacent Zone of the Russian Federation" contains a norm obliging to have a plan for the prevention and elimination of oil and petroleum product spills during the study, exploration, production and transportation of hydrocarbon raw materials. Article 22.2 of Federal Law No. 187-FZ of November 30, 1995 "On the Continental Shelf of the Russian Federation" contains a provision similar to the previous one, which includes a plan for the prevention and elimination of oil and petroleum product spills. Decree of the Government of the Russian Federation No. 2366 of December 30, 2020 contains rules for the organization of measures to prevent and eliminate oil and petroleum product spills on the continental shelf of the Russian Federation, in internal sea waters, in the territorial sea and the adjacent zone of the Russian Federation. These rules define the requirements for the content of the oil and petroleum product spill prevention and response plan, the procedure for conducting complex exercises, the procedure for issuing an opinion on the readiness of the operating organization to localize and eliminate oil and petroleum product spills, the procedure for attracting additional forces and resources of the unified state emergency prevention and response system to implement measures to eliminate oil spills and petroleum products.

By Order of the Ministry of Transport of the Russian Federation No. 523 dated November 27, 2020, the requirements for the composition of forces and means of constant readiness intended for the prevention and elimination of oil and petroleum product spills on the continental shelf of the Russian Federation, in internal sea waters, in the territorial sea and the adjacent zone of the Russian Federation were approved (registered with the Ministry of Justice of the Russian Federation on December 31, 2020 No. 62015), which indicate the composition of forces and means to eliminate oil spills, such as skimmers used to collect oil and petroleum products in open water. At the same time, they do not stipulate the possibility of collecting oil under ice, and there are also no requirements regarding the level of ice cohesion, which is a significant drawback ^{[11, pp. 79-82]}.

In conclusion, it should be noted that today there are a number of environmental problems that require solutions at the national and international level. Due to the "fragility" of the natural environment of the polar region, the complexity of eliminating oil and petroleum products spills in polar waters, it seems necessary to improve legislation taking into account regional specifics, for example, in terms of regulating the elimination of oil spills under ice, taking into account existing modern means and methods. Legislation containing procedures for ensuring rapid response to oil spills in certain water areas, taking into account regional climatic features, also needs to be improved. It is necessary to legislate the use of monitoring tools such as biomarkers, as well as radars on aircraft and water vessels. It should also be noted that most of the existing legal norms, both at the international and national levels, are aimed at compliance with the rules for the transportation of oil and petroleum products. In addition, these standards contain requirements for the operation of the vessel, its design features and the operation of the equipment used. However, it seems necessary to pay more attention to the issue of forecasting, prevention of emergency situations.