AN ACT Relating to oil and hazardous substance spills; amending RCW 90.48.355, 90.48.340, 90.48.335, 88.16.010, and 90.48.320; adding new sections to chapter 90.48 RCW; and making an appropriation.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The purpose of this act is to provide assurance to the people of the state that their health, safety, and well-being will be protected from the adverse consequences of oil and hazardous substance releases of a magnitude that present a grave and substantial threat to the economy and the environment of the state. The department contingency plan for response to spills of oil and hazardous substances is in need of continual updates as experience is gained and new efforts are undertaken. The incorporation of necessary standard operating procedures and protocols, addressing such issues as wildlife rescue, transportation hazardous materials incidents, training, response to drills, and the heavy barge traffic on our inland waterway systems, will require a greater level of effort than current resources allow.

The department needs to continue and enhance coordination efforts with other governmental agencies as well as the private sector and needs to work closely with industry to ensure the adequacy of existing and proposed industry initiated, coordinated response plans. The industry response plans should be reviewed for adequacy on an annual basis by the department. This review would include changes in potential risk of any event, availability and location of cleanup equipment, changes in notification lists and procedures, sensitive area protection priorities, and other items as required by the contingency plan.

NEW SECTION. Sec. 2. The department shall have authority and accountability for the following tasks:

(1) Develop state statutes and regulations requiring prevention, containment, and cleanup contingency plans for specific facilities and operations.

(2) Enhance state government spill prevention and contingency planning.

(3) Enhance volunteer and public education efforts.

(4) Promote industry self-regulation.

NEW SECTION. Sec. 3. The department of ecology and the department of labor and industries shall:

(1) Assure minimum training requirements for hazardous material handlers.

(2) Jointly develop rules for certifying spill responders.

(3) Develop regulations describing minimum training standards and practices.

(4) Incorporate the training requirements into integrated, comprehensive state spill prevention regulations.

NEW SECTION. Sec. 4. The department shall work with potentially impacted industry, and federal and local officials to develop rules for emergency spill response plans, and what must be included in those plans. The rules shall allow for consistency in planning efforts, and provide for state enforcement for product transfer and storage facilities in Washington coastal waters and inland waters. The department shall undertake a thorough review of each specific plan. The review shall include required physical in-plant changes and the relationship between the plan and the facility layout and operation. The department shall provide written guidance and technical assistance to develop and update the plan. The department shall visit each facility and review its plan on no less than a five-year cycle. Should the production process or facility significantly change, the owner or operator shall notify the department of the changes within thirty days and be subject to reinspection.

Concurrently with the review of completed plans, the department shall inspect each facility to determine how appropriate the plan is relative to the facility's layout and operation. The department shall conduct random and unannounced facility inspections on facilities to test the adequacy of facility plans.

NEW SECTION. Sec. 5. The Washington board of pilotage commissioners shall work with the United States Coast Guard to:

(1) Revise and strengthen qualifications and training for personnel piloting and operating vessels in Washington state waters.

(2) Establish standardized bridge-to-bridge communication procedures and frequencies, including minimum standards of usage.

(3) Increase Coast Guard on-water policing and stiffened penalties for violations.

(4) Require that pilots be picked up prior to entering the Strait of Juan de Fuca.

(5) Require improvements in vessel design.

(6) Support efforts to impose federal requirements for double hulls and double bottoms.

NEW SECTION. Sec. 6. The department shall develop and annually review and revise a state oil and hazardous materials spill contingency plan that includes all the elements of oil response planning, including the oil and hazardous substance discharge and prevention plan and the contingency disposal plan. The plan shall include:

(1) Specification of agency, operator, and private party responsibilities in an emergency, which shall include assessment, containment, and cleanup of oil spills;

(2) Incorporation of facility contingency plans into state and local plans; and

(3) Coordination of the state plan with the department of community development's local government model oil spill contingency plan and with the emergency response plan of the emergency management division.

NEW SECTION. Sec. 7. A response section in the department shall be staffed with trained experts who shall lead a state response at oil spills. The office shall develop an auxiliary volunteer response corps able to effectively participate in a spill response. It shall require the establishment of depots of response equipment at key locations which qualified local governments may deploy for defensive measures.

NEW SECTION. Sec. 8. (1) The department shall prepare and annually review and revise a state-wide master oil and hazardous substance spill and prevention and oil spill response contingency plan.

(2) The state master plan prepared under this section must:

(a) Take into consideration the elements of the department's existing oil spill contingency plan;

(b) Clarify and specify the respective responsibilities of each of the following in the assessment, containment, and cleanup of an oil discharge or of a discharge of a hazardous substance into the environment of the state:

(i) Agencies of the state;

(ii) Municipalities of the state;

(iii) Appropriate federal agencies;

(iv) Operators of facilities;

(v) Private parties whose land and other property may be affected by the oil or hazardous substance discharge;

(vi) Tribal governments; and

(vii) Other parties identified by the department as having an interest in or the resources to assist in the containment and cleanup of an oil or hazardous substance discharge;

(c) Specify the respective responsibilities of parties identified in (b) of this subsection in an emergency response; and

(d) Identify actions necessary to reduce the likelihood of catastrophic oil discharges and significant discharges of hazardous substances;

(e) Establish a chain of command for the state response;

(f) Identify all sources of response and all resources available;

(g) Identify the appropriate roles for all entities including state agencies, federal agencies, local government, private entities, and the public; and

(h) Establish timelines and goals for the state's oil and hazardous substance planning process and updating of all plans and programs on a regular basis. (3) In preparing and annually reviewing the state master plan, the department shall:

(a) Consult with local government;

(b) Submit the draft plan to the public for review and comment;

(c) Submit to the legislature for review, not later than the tenth day following the convening of each regular session, the plan and any annual revision of the plan; and

(d) Require or schedule unannounced oil spill drills to test the sufficiency of the master plan.

NEW SECTION. Sec. 9. The department shall develop a series of "drills" designed to test response capabilities of public and private response entities and provide for mandatory, unannounced oil spill drills of vessel and facility plans. The objectives of these drills are to verify the practicality and gauge the potential success of the plan and identify areas where improvements must be made.

NEW SECTION. Sec. 10. The department shall develop a contingency disposal plan for future oil and hazardous substance spills in accordance with chapter 173-303 WAC and other applicable rules and laws.

NEW SECTION. Sec. 11. The state of Washington and its officers, employees, and agents may not be held liable in any civil action for damages resulting from any act or omission in developing, approving, or implementing oil and hazardous substance spill contingency plans.

Sec. 12. Section 8, chapter 133, Laws of 1969 ex. sess. as amended by section 151, chapter 109, Laws of 1987 and RCW 90.48.355 are each amended to read as follows:

The department, through its duly authorized representatives, shall have the power to enter upon any private or public property, including the boarding of any ship, at any ((~~reasonable~~)) time, and the owner, managing agent, master or occupant of such property shall permit such entry for the purpose of investigating conditions relating to violations or possible violations of RCW 90.48.315 through 90.48.365, and to have access to any pertinent records relating to such property, including but not limited to operation and maintenance records and logs: PROVIDED, That in connection with the authority granted herein no person shall be required to divulge trade secrets or secret processes. In any hearing conducted pursuant to this chapter, the director shall have the power to issue subpoenas for the production of any books, records, or documents and to subpoena witnesses.

Sec. 13. Section 5, chapter 133, Laws of 1969 ex. sess. as last amended by section 148, chapter 109, Laws of 1987 and RCW 90.48.340 are each amended to read as follows:

The department shall investigate each activity or project conducted under RCW 90.48.330 to determine, if possible, the circumstances surrounding the entry of oil into waters of the state and the person or persons allowing said entry or responsible for the act or acts which result in said entry. Whenever it appears to the department, after investigation, that a specific person or persons are responsible for the necessary expenses incurred by the state pertaining to a project or activity as specified in RCW 90.48.335, the department shall notify said person or persons by appropriate order: PROVIDED, That no order may be issued pertaining to a project or activity which was completed more than five years prior to the date of the proposed issuance of the order. Said order shall state the findings of the department, the amount of necessary expenses incurred by the department in conducting the project or activity, and a notice that said amount is due and payable immediately upon receipt of said order. The department may, upon application from the recipient of an order received within thirty days from the receipt of the order, reduce or set aside in its entirety the amount due and payable, when it appears from the application, and from any further investigation the department may desire to undertake, that a reduction or setting aside is just and fair under all the circumstances. If the amount specified in the order issued by the department notifying said person or persons is not paid within thirty days after receipt of notice imposing the same, or if an application has been made within thirty days as herein provided and the amount provided in the order issued by the department subsequent to such application is not paid within fifteen days after receipt thereof, the attorney general, upon request of the department, shall bring an action on behalf of the state in the superior court of Thurston county or any county in which the person to which the order is directed does business, or in any other court of competent jurisdiction, to recover the amount specified in the final order of the department, plus reasonable costs and attorneys' fees. No order issued under this section shall be construed as an order within the meaning of RCW 43.21B.310 and shall not be appealable to the hearings board. In any action to recover necessary expenses as herein provided said person shall be relieved from liability for necessary expenses if he can prove that the oil to which the necessary expenses relate entered the waters of the state by causes set forth in RCW 90.48.320(3).

Sec. 14. Section 4, chapter 133, Laws of 1969 ex. sess. as amended by section 5, chapter 88, Laws of 1970 ex. sess. and RCW 90.48.335 are each amended to read as follows:

Any person who fails to immediately collect, remove, contain, treat or disperse oil when under an obligation to do so as provided in RCW 90.48.325, shall be responsible for the necessary expenses incurred by the state in carrying out a project or activity authorized under RCW 90.48.330 and may be liable for treble damages under RCW 70.105D.050.

If a vessel malfunctions or runs aground and creates a threatened oil spill, the person owning or having control over the oil shall be responsible for all expenses incurred by the department in responding to the situation.

Sec. 15. Section 1, chapter 18, Laws of 1935 as last amended by section 1, chapter 485, Laws of 1987 and RCW 88.16.010 are each amended to read as follows:

(1) The board of pilotage commissioners of the state of Washington is hereby created and shall consist of the assistant secretary of marine transportation of the department of transportation of the state of Washington, or the assistant secretary's designee who shall be an employee of the marine division, who shall be chairperson, and ((~~six~~)) nine members appointed by the governor and confirmed by the senate. Each of said appointed commissioners shall be appointed for a term of four years from the date of said member's commission. No person shall be eligible for appointment to said board unless that person is at the time of appointment eighteen years of age or over and a citizen of the United States and of the state of Washington. Two of said appointed commissioners shall be pilots licensed under this chapter and actively engaged in piloting upon the waters covered by this chapter for at least three years immediately preceding the time of appointment and while serving on the board. One pilot shall be from the Puget Sound pilotage district and one shall be from the Grays Harbor pilotage district. Two of said appointed commissioners shall be actively engaged in the ownership, operation, or management of deep sea cargo and/or passenger carrying vessels for at least three years immediately preceding the time of appointment and while serving on the board. One of said shipping commissioners shall be a representative of American and one of foreign shipping. One appointed commissioner shall be a representative of environmental groups, one shall be a representative of the general public, and one shall be appointed by the director of the department of ecology to represent the department. The remaining commissioners shall be persons interested in and concerned with pilotage, maritime safety, and marine affairs, with broad experience related to the maritime industry exclusive of experience as either a state licensed pilot or as a shipping representative.

(2) Any vacancy in an appointed position on the board shall be filled by the governor for the remainder of the unfilled term, subject to confirmation by the senate.

(3) Four members of the board shall constitute a quorum. At least one pilot, one shipping representative, and one public member must be present at every meeting. All commissioners and the chairperson shall have a vote.

Sec. 16. Section 1, chapter 133, Laws of 1969 ex. sess. as last amended by section 146, chapter 109, Laws of 1987 and RCW 90.48.320 are each amended to read as follows:

It shall be unlawful, except under the circumstances hereafter described in this section, for oil to enter the waters of the state from any ship or any fixed or mobile facility or installation located offshore or onshore whether publicly or privately operated, regardless of the cause of the entry or fault of the person having control over the oil, or regardless of whether it be the result of intentional or negligent conduct, accident or other cause. This section shall not apply to discharges of oil in the following circumstances:

(1) The person discharging was expressly authorized to do so by the department prior to the entry of the oil into state waters;

(2) The person discharging was authorized to do so by operation of law as provided in RCW 90.48.200;

(3) Where a person having control over the oil can prove that a discharge was caused solely by:

(a) An act of war or sabotage, or

(b) Negligence on the part of the United States government, or the state of Washington.

NEW SECTION. Sec. 17. Sections 1 through 11 of this act are each added to chapter 90.48 RCW.

NEW SECTION. Sec. 18. The sum of .......... dollars, or as much thereof as may be necessary, is appropriated from the .......... to the department of ecology for the biennium ending June 30, 1991, to carry out the purposes of this act.