Reducing air pollution from ships in California ports

California’s regulation for ocean going vessels at berth

Since 2014, the California Resource Board (CARB) has regulated emissions from container, refrigerated cargo (reefer), and passenger vessels that visit certain state ports. Following the positive results of this regulation, and in an effort to further reduce the public’s exposure to air pollution caused by commercial vessels that visit California ports and terminals, its new ‘2020 At Berth Regulation’ took effect on 1 January 2021.

The new regulation continues to cover emissions from container, reefer and passenger vessels, but also expands the requirements to more pollutants and vessel types. Furthermore, it determines the need for emission control regulation in each port based on the port’s annual vessel activity. The emission control requirements are phased in based on vessel type, and as of 1 January 2025, roll-on/roll off (ro/ro) vessels, and tanker vessels visiting the Ports of Los Angeles or Long Beach, will be regulated.

Key points for vessel operators

• All vessels visiting a California port are subject to requirements of the 2020 At Berth Regulation.

• Only container, reefer, passenger, ro/ro and tanker vessels are subject to emission control requirements. However, vessel types such as bulk and general cargo vessels must comply with other relevant obligations under the regulation, including opacity, or blackness of smoke, and visit reporting requirements.

• Low activity terminals are exempted from the emission control requirements. However, if a low activity terminal receives 20 or more visits per year from a regulated vessel type, for two consecutive calendar years, that terminal no longer qualifies for the low activity exemption for that vessel type and visiting vessels will be required to reduce emissions starting 1 January the following year.

• Vessels subject to emission control requirements must use a ‘CARB approved emission control strategy’ (CAECS) to control emissions for the duration of a visit. At the time of writing, compliance will most likely be achieved by the use of shore power and/or emissions capture and control systems. However, if a vessel wishes to use a strategy for compliance that is currently not approved for use, such as batteries or alternative fuels, they must apply for CARB approval of that strategy as a CAESC.

• Vessel operators must communicate with terminal operators in writing at least seven days before arrival to coordinate shore power and other CAECS needs. While ABS’ guide to terminal-supplied CAECS is a useful resource for planning ahead, a check with the local agent as to availability of CAECS at a specific port for the estimated visiting time can be recommended.

Be prepared

As the procedures and equipment needed for ro/ro and tanker vessels to comply with CARB’s emission control requirements could be quite extensive and costly, we advise ship operators trading to California ports to familiarise themselves with the 2020 At Berth Regulation and the control strategies currently approved by CARB. The preparatory work to ensure timely compliance should not be postponed, and the following sources of information are recommended:

• CARB: Ocean-Going Vessels At Berth Regulation website – including links to regulatory documents, frequently asked questions (FAQ), reporting templates, etc.

• CARB: Approved emission control systems (CAECS) that may be used for compliance with the At Berth Regulation

• Gard: Enforcement of California’s new At-Berth Regulation began on 1 January 2023

• Gard: Prepare for tougher at-berth emissions reductions in California

• ABS: CARB At Berth Regulation advisory

• ABS: CARB shore power directory – a guide to terminal-supplied CAECS

On 24th September 2020, the Governor of California signed Californian Assembly Bill (AB) 3214 into law and that will provide for such increased penalties and fines by means of amendments to California’s Lempert-Keene-Seastrand Oil Spill Prevention and Response Act (the “Act”). Under the current Act, such civil and criminal penalties can be imposed under various statutes, with Government Code §8670.3 defining liable persons (“violator”) as an individual, trust, firm, joint stock company, or corporation, including, but not limited to, a government corporation, partnership, and association, and thereby including shipowners, operators and Masters amongst other parties involved in the transportation chain.

The original draft Assembly Bill set out to:

(1) Increase the level of Californian State certification of financial responsibility (COFR) – that a tank or non-tank vessel operating in Californian waters must demonstrate in order to cover damages caused by an oil spill – from US$1 billion to US$2 billion for tank vessels and US$300 million to US$600 million for non-tank vessels,

(2) Double the existing level of certain criminal fines that shall be imposed in the event of an oil spill, and

(3) Empower the courts to impose an additional criminal fine of up to US$10,000 per gallon of oil spilt.

In each case, the liability would be determined on the basis that the violator knowingly caused, or reasonably should have known that their actions would lead to, an oil spill in Californian State waters. Under California law, the phrase, “reasonably should have known,” has been equated with a simple negligence standard.

AB 3214 – Californian legislature

The Bill sponsor also reduced the potential per gallon fine from up to US$10,000 per gallon down to a maximum of US$1,000 per gallon in excess of 1,000 gallons spilt, however it was not possible to remove this from the legislation in its entirety or reduce it further. The Bill sponsor also retained the doubling of existing criminal fines.