WSR 09-07-029

PERMANENT RULES

DEPARTMENT OF ECOLOGY


[ Order 08-14 -- Filed March 10, 2009, 9:59 a.m. , effective April 10, 2009 ]


Effective Date of Rule: Thirty-one days after filing.

Purpose: The purpose of this rule is to amend the compensation schedule mathematical formula multipliers in regulation so that the full range of compensation ($1 to $100 per gallon of oil spilled) required in state law can be calculated. This rule will amend WAC 173-183-830(3), 173-183-840(2), 173-183-850(2), and 173-183-860(2), by replacing current multipliers with new multipliers that are capable of achieving the full range of compensation required in state law. This rule will also change WAC 173-183-830(3), 173-183-840(2), 173-183-850(2), and 173-183-860(2) by replacing the $50 ceiling limit value with the new $100 ceiling limit required by RCW 90.48.366.

Citation of Existing Rules Affected by this Order: Amending WAC 173-183-830(3), 173-183-840(2), 173-183-850(2), and 173-183-860(2).

Statutory Authority for Adoption: RCW 90.48.366, 90.56.050, and 90.48.035.

Adopted under notice filed as WSR 09-01-124 on December 19, 2008.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 4, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: March 10, 2009.

Jay J. Manning

Director

OTS-1819.1


AMENDATORY SECTION(Amending Order 03-03, filed 5/12/03, effective 6/12/03)

WAC 173-183-830   Calculation of damages for spills into marine and estuarine waters, except the Columbia River estuary.   (1) The formula provided in subsection (2) of this section shall be used to determine damages liability for spills into marine and estuarine waters, except the estuarine waters of Columbia River. The value of the variables used in the formula shall be determined by:

(a) The OSC as enumerated in WAC 173-183-810(1);

(b) The mutually agreed upon independent expert, if applicable, as described in WAC 173-183-810(2); and

(c) The RDA committee chair as enumerated in WAC 173-183-820 (1)(a).

(2) In making the determination of percent-coverage of habitat types, the RDA committee chair may assume that the habitat-type visible at low tide extends out to the 20 meter depth contour.

(3) Damages liability shall be calculated using the following formula:


Damages ($) =
gallons spilled* ((0.1)) 0.208* [(OILAT*SVSAT,j) +
(OILMI*SVSMI,j) + (OILPER*SVSPER,j)]
where: gallons spilled = the number of gallons of oil spilled as determined by the procedures outlined in WAC 173-183-810;
SVSi,j = spill vulnerability score (from WAC 173-183-400(3));
OILAT = Acute Toxicity Score for Oil (from WAC 173-183-340);
OILMI = Mechanical Injury Score for Oil (from WAC 173-183-340); and
OILPER = Persistence Score for Oil (from WAC 173-183-340).
i = acute toxicity, mechanical injury and persistence effect of oil
j = the most sensitive season affected by the spill
((0.1)) 0.208 = multiplier to adjust the damages calculated to the $((1-50)) 1-100 per gallon range.

Formula results shall be rounded to the nearest 0.01 to determine damages liability as follows: Decimals less than 0.005 shall be rounded down, and decimals equal to or greater than 0.005 shall be rounded up.

[Statutory Authority: Chapter 90.48 RCW. 03-11-010 (Order 03-03), 173-183-830, filed 5/12/03, effective 6/12/03; 92-10-005 (Order 91-13), 173-183-830, filed 4/23/92, effective 5/24/92.]

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending Order 91-13, filed 4/23/92, effective 5/24/92)

WAC 173-183-840   Calculation of damages for spills into the Columbia River estuary.   (1) The formula provided in subsection (2) of this section shall be used to determine damages liability for spills into the estuarine waters of Columbia River. The value of the variables used in the formula shall be determined by:

(a) The OSC as enumerated in WAC 173-183-810(1);

(b) The mutually agreed upon independent expert, if applicable, as described in WAC 173-183-810(2); and

(c) The RDA committee chair as enumerated in WAC 173-183-820 (1)(b).

(2) Damages liability shall be calculated using the following formula:


Damages ($) =
gallons spilled* ((0.2)) 0.508*SVSj*(OILAT+OILMI+OILPER)
where: gallons spilled = the number of gallons of oil spilled as determined by procedures outlined in WAC 173-183-810
SVSj = spill vulnerability score (from WAC 173-183-500(3));
j = the most sensitive season affected by the spill
OILAT = Acute Toxicity Score for Oil (from WAC 173-183-360);
OILMI = Mechanical Injury Score for Oil (from WAC 173-183-360); and
OILPER = Persistence Score for Oil (from WAC 173-183-360).
((0.2)) 0.508 = multiplier to adjust the damages calculated to the $((1-50)) 1-100 per gallon range.

Formula results shall be rounded to the nearest 0.01 to determine damages liability as follows: Decimals less than 0.005 shall be rounded down, and decimals equal to or greater than 0.005 shall be rounded up.

[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), 173-183-840, filed 4/23/92, effective 5/24/92.]


AMENDATORY SECTION(Amending Order 03-03, filed 5/12/03, effective 6/12/03)

WAC 173-183-850   Calculation of damages for spills in freshwater streams, rivers, and lakes.   (1) The formula provided in subsection (2) of this section shall be used to determine damages liability for spills into freshwater streams, rivers, and lakes. The value of the variables used in the formula shall be determined by:

(a) The OSC as enumerated in WAC 173-183-810(1);

(b) The mutually agreed upon independent expert, if applicable, as described in WAC 173-183-810(2); and

(c) The RDA committee chair as enumerated in WAC 173-183-820 (1)(c).

(2) Damages liability shall be calculated using the following formula:


Damages ($) =
gallons spilled* ((0.08)) 0.162* SVS* (OILAT +OILMI + OILPER)
where: gallons spilled = the number of gallons of oil spilled as determined by the procedures outlined in WAC 173-183-810;
SVS = Spill vulnerability score [from WAC 173-183-600(3)];
OILAT = Acute Toxicity Score for Oil [from WAC 173-183-340];
OILMI = Mechanical Injury Score for Oil [from WAC 173-183-340]; and
OILPER = Persistence Score for Oil [from WAC 173-183-340].
((0.08)) 0.162 = multiplier to adjust damages calculated to the $((1-50)) 1-100 per gallon range;

Formula results shall be rounded to the nearest 0.01 to determine damages liability as follows: Decimals less than 0.005 shall be rounded down, and decimals equal to or greater than 0.005 shall be rounded up.

[Statutory Authority: Chapter 90.48 RCW. 03-11-010 (Order 03-03), 173-183-850, filed 5/12/03, effective 6/12/03; 92-10-005 (Order 91-13), 173-183-850, filed 4/23/92, effective 5/24/92.]

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending Order 03-03, filed 5/12/03, effective 6/12/03)

WAC 173-183-860   Calculation of damages for spills into freshwater wetlands.   (1) The formula provided in subsection (2) of this section shall be used to determine damages liability for spills into freshwater wetlands. The value of the variables used in the formula shall be determined by:

(a) The OSC as enumerated in WAC 173-183-810(1);

(b) The mutually agreed upon independent expert, if applicable, as described in WAC 173-183-810(2); and

(c) the RDA committee chair as enumerated in WAC 173-183-820 (1)(d).

(2) Damages liability shall be calculated using the following formula:


Damages ($) =
gallons spilled* ((0.81)) 1.620* SVS* (OILAT +OILMI + OILPER)
where: gallons spilled = the number of gallons of oil spilled as determined by procedures outlined in WAC 173-183-810;
SVS = Spill vulnerability score [from WAC 173-183-700(3)];
OILAT = Acute Toxicity Score for Oil [from WAC 173-183-340];
OILMI = Mechanical Injury Score for Oil [from WAC 173-183-340]; and
OILPER = Persistence Score for Oil [from WAC 173-183-340].
((0.81)) 1.620 = multiplier to adjust damages calculated to the $((1-50)) 1-100 per gallon range;

Formula results shall be rounded to the nearest 0.01 to determine damages liability as follows: Decimals less than 0.005 shall be rounded down, and decimals equal to or greater than 0.005 shall be rounded up.

[Statutory Authority: Chapter 90.48 RCW. 03-11-010 (Order 03-03), 173-183-860, filed 5/12/03, effective 6/12/03; 92-10-005 (Order 91-13), 173-183-860, filed 4/23/92, effective 5/24/92.]

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office