WSR 19-12-113

PROPOSED RULES

DEPARTMENT OF ECOLOGY

[Order 18-04—Filed June 5, 2019, 9:39 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 18-24-127.

Title of Rule and Other Identifying Information: Ecology proposes to amend chapter 173-186 WAC, Oil spill contingency plan—Railroad. This chapter requires railroads carrying oil as cargo to plan for oil spills to include how to make notifications and have the appropriate equipment and trained personnel to respond to spills that may occur.

Hearing Location(s): On July 9, 2019, at 1:00 p.m., in-person at Ramada by Wyndham Spokane Airport Hotel, 8909 Airport Drive, Spokane, WA 99224. Presentation, question and answer session followed by the hearing.

On July 10, 2019, at 6:00 p.m., webinar. We are also holding this hearing via webinar. This is an online meeting that you can attend from any computer using internet access.

Join online and see instructions: Chapter 173-186 WAC Rulemaking Hearing Wed, Jul 10, 2019 6:00 PM PDT.

Please join my meeting from your computer, tablet or smartphone https://global.gotomeeting.com/join/123020765.

You can also dial in using your phone, United States: +1 (646) 749-3122, Access Code: 123-020-765.

Presentation, question and answer session followed by the hearing.

July 11, 2019, at 1:00 p.m., in-person at Hilton Seattle Airport and Conference Center, 17620 International Boulevard, Seattle, WA 98188. Presentation, question and answer session followed by the hearing.

Date of Intended Adoption: November 6, 2019.

Submit Written Comments to: Nhi Irwin, Department of Ecology, Spill Prevention, Preparedness, and Response Program, 300 Desmond Drive S.E. (parcel delivery), Lacey, WA 98503 or P.O. Box 47600 (US postal), Olympia, WA 98502, submit comments by mail, online, or at the hearing(s), online http://cs.ecology.commentinput.com/?id=NYeZQ, by July 22, 2019.

Assistance for Persons with Disabilities: Contact ecology's ADA coordinator, phone 360-407-6831, people with speech disability may call TTY at 877-833-6341, people with impaired hearing may call Washington relay service at 711, email ecyADAcoordinator@ecy.wa.gov, by July 5, 2019.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Ecology plans to amend chapter 173-186 WAC, Oil spill contingency plan for railroad. This chapter requires railroads carrying oil as cargo to plan for oil spills to include how to make notifications and have the appropriate equipment and trained personnel to respond to spills that may occur. This rule making will:


•	Establish three types for railroad planning and streamline requirements according to RCW 90.56.210.
•	Establish requirements for citing spill management teams including entities providing wildlife rehabilitation and recovery services.
•	Enhance requirements for readiness for spills of oils that may weather and sink.
•	Update drill requirements to reflect legislative direction.
•	Make other edits to address inconsistent or unclear direction in the rule.

We were in the beginning stages of implementing this chapter when in 2017, the legislature passed ESHB 1136 (RCW 90.56.210) changing oil spill contingency planning requirements for smaller railroads. The purpose of this rule making is to streamline the plan requirements for the smaller railroads who move refined oil products and not crude oil. In addition, this rule update will comply with the passage of E2SSB 6269 in 2018 (RCW 90.56.210) directing ecology to update rules to account for nonfloating oils and to require spill management teams to apply and be approved by ecology in order to be cited in contingency plans.

Reasons Supporting Proposal: See answer to "Purpose of the proposal …."

Statutory Authority for Adoption: RCW 90.56.210 Contingency plans.

Statute Being Implemented: RCW 90.56.210 Contingency plans.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Department of ecology, governmental.

Name of Agency Personnel Responsible for Drafting and Implementation: Nhi Irwin, Department of Ecology, Headquarters, Lacey, Washington, 360-407-7039; and Enforcement: Linda Pilkey-Jarvis, Department of Ecology, Headquarters, Lacey, Washington, 360-407-7447.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Nhi Irwin, P.O. Box 47600, Olympia, WA 98502, phone 360-407-7039, people with speech disability may call TTY at 877-833-6341, people with impaired hearing may call Washington relay service at 711, to request Americans with Disabilities Act (ADA) accommodation for disabilities, or printed materials in a format for the visually impaired, call ecology at 360-407-7668 or visit https://ecology.wa.gov/accessibility, email nhi.irwin@ecy.wa.gov.

The proposed rule does impose more-than-minor costs on businesses.

This small business economic impact statement (SBEIS) presents the:


•	Compliance requirements of the proposed rule.
•	Results of the analysis of relative compliance cost burden.
•	Consideration of lost sales or revenue.
•	Cost-mitigating action taken by ecology, if required.
•	Small business and local government consultation.
•	Industries likely impacted by the proposed rule.
•	Expected net impact on jobs statewide.

A small business is defined by the Regulatory Fairness Act (RFA) (chapter 19.85 RCW) as having fifty or fewer employees. Estimated costs are determined as compared to the existing regulatory environment, the regulations in the absence of the rule. The SBEIS only considers costs to "businesses in an industry" in Washington state. This means that impacts, for this document, are not evaluated for nonprofit or government agencies.

The existing regulatory environment is called the "baseline" in this document. It includes only existing laws and rules at federal and state levels.

This information is excerpted from ecology's complete set of regulatory analyses of the proposed rule. For complete discussion of the likely costs, benefits, minimum compliance burden, and relative burden on small businesses, see the regulatory analyses (Ecology publication no. 19-08-010, MAY 2019).

COMPLIANCE REQUIREMENTS OF THE PROPOSED RULE, INCLUDING PROFESSIONAL SERVICES:The baseline for our analyses generally consists of existing rules and laws, and their requirements. This is what allows us to make a consistent comparison between the state of the world with and without the proposed rule amendments. For this proposed rule making, the baseline includes the:


•	Existing rule: Chapter 173-186 WAC, Oil spill contingency plan—Railroad.
•	Authorizing statute: RCW 88.46.160, Refueling, bunkering, or lightering operations—Availability of containment and recovery equipment—Rules.
•	Authorizing statute: RCW 90.48.080, Discharge of polluting matter in waters prohibited.
•	Authorizing statute: Chapter 90.56 RCW, Oil and hazardous substance spill prevention and response.
•	Any other applicable law or rule.

Proposed rule amendments: The proposed rule amendments make the following changes:


•	Expanding applicability.
•	Adding definitions.
•	Changing plan submittal requirements.
•	Phasing in requirements.
•	Establishing specific requirements for Type A railroads.
•	Establishing specific requirements for Type B railroads.
•	Establishing specific requirements for Type C railroads.

Expanding applicability:

Proposed: The proposed amendments add spill management teams (SMT) to the baseline list of applicability.

Expected impact: In and of itself, this change does not create impacts. Impacts to SMTs stem from requirements set for them, and are discussed in the relevant sections below.

Adding definitions:

Proposed: The proposed amendments do not change any existing definitions. They add definitions for:


•	SMT: Representatives and assigned personnel who are qualified and capable of integrating into an incident command system or unified command system and managing a spill. A company internal SMT is approved through the contingency plan and a contracted SMT is approved by ecology through the SMT application process and is directly responsible to a contingency plan holder, either by a contract or other approved written agreement.
•	Type A railroad: Any railroad classification transporting oil in bulk that is crude oil regardless of volume.
•	Type B railroad: Any railroad classification transporting oil in bulk that is not crude oil in an amount of forty-nine or more tank car loads per year.
•	Type C railroad: Any railroad classification transporting oil in bulk that is not crude oil in an amount less than forty-nine tank car loads per year.
•	Worldwide response resource list: An equipment list established and maintained by spill response equipment owners.

Expected impact: Most of the proposed new definitions do not have costs and benefits in and of themselves, but the definition of an SMT sets the requirement that SMTs must be approved by ecology. We expect this to have costs and benefits, as part of overall plan update impacts discussed as relevant for each railroad type. (See sections 2.3.6 through 2.3.8, and corresponding estimates and discussion in chapters 3 and 4.)

Changing plan submittal requirements:

Proposed: The proposed amendments replace the explicit requirement for two paper copies, with a requirement to submit one electronic and one paper copy.

Expected impact: The proposed amendments would bring the rule into line with current practice. Under the Administrative Procedure Act (APA), considering only what is written in rules and laws, this is a change that would result in:


•	Compared to two paper copies:


º	The cost of electronic submissions.
º	A cost-savings for printing and submitting one less paper copy.


•	Compared to one electronic copy:


º	The cost of printing and submitting a paper copy.

Phasing in requirements:

Proposed: The proposed rule includes language on which plan updates are due eighteen months (instead of immediately when the amended rule is applicable).


•	Type A railroads have eighteen months to submit updates for:


º	Binding agreement.
º	Reference to incident management handbook or description of planning process.
º	List of resources at risk considering water column and benthic species and habitat, identification of waterways depth and response options based on those factors.
º	Adding large scale equipment deployment to frequency of drills.
º	Notification information relating to SMTs, contracts or other approved means.
º	Personnel listed in incident command system (ICS) roles in an organizational table.
º	Description of type and frequency of training dependent on ICS position.


•	Type B railroads have eighteen months to submit updates for:


º	Binding agreement.
º	Reference to incident management handbook or description of planning process.
º	List of resources at risk considering water column and benthic species and habitat, identification of waterways depth and response options based on those factors.
º	Notification information relating to SMTs, contracts or other approved means.
º	Personnel listed in ICS roles in an organizational table.
º	Description of type and frequency of training dependent on ICS position.


•	Type C railroads have eighteen months to:


º	Submit letter that plan is complete and meets requirements.
º	Update plan with missing required info.

Expected impact: We expect these proposed amendments to mitigate the costs created by required plan updates and contracts, as applicable, by railroad type. Costs are mitigated in the sense that plan holders have eighteen additional months before they incur some of these costs.

Requirements for Type A railroads:

Proposed: The proposed amendments make the following changes to requirements for Type A (crude-carrying) railroads:


•	Expanding the binding agreement to all parties authorized to implement the contingency plan.
•	Adding a listing of names, addresses, phones, and emails of those implementing the contingency plan.
•	Expanding the listing of ICS contact information to include contracted primary response contractors (PRC) and SMT resources.
•	Expanding ICS contract and/or description of terms to include PRCs and SMTs.
•	Adding a structured list of SMT positions. Under contracted circumstances, the name of the whole PRC or SMT can be listed instead of an individual's name.
•	Expanding the description of the planning process to include references to the incident management handbook.
•	Adding a notification documentation form. (Note that this is part of current practice.)
•	Expanding description of sensitive areas to include:


º	Water column and benthic species at risk from sunken, submerged, or nonfloating oil spills.
º	Identification of waterway depths, water density, sediment load, sea floor or river bottom types, and response options based on those factors and risks from nonfloating oil spills.


•	Replacing the planning standard for crude oil with a standard for potentially sinking oils:


º	Include examples: Crude oil, Diluted Bitumen (dilbit), Group V residual fuel oils (GPVRFO) Low American Petroleum Institute Oil (LAPIO), decant, asphalt, and asphalt products.
º	Replaces twelve hour standard for crude with:


■	Six hour capability to initiate assessment of potentially sinking oils.
■	Six to twelve hour resources and equipment to detect and delineate oils, and boom to prevent sinking arrive.
■	Twelve to twenty-four hour resources and equipment to evaluate environmental impact, and equipment to recover from bottom and shoreline arrive.


º	Description of the process to detect, delineate, recover nonfloating oils.


•	Adding to the wildlife planning standard:


º	Plan for impacts to wildlife (with examples on surface and below).
º	Commit to conduct response per the northwest area contingency plan (NWACP).
º	Contact information for PRC, SMT, contractors available to be on wildlife branch of ICS in twenty-four hours.
º	Wildlife plan: Equipment, personnel, resources, strategies for wildlife response.
º	Contract with PRC with mobile wildlife rehabilitation unit (MRU) that has (note this is a part of existing contracts):


■	One thousand one hundred square feet of space to treat and house, intake, stabilize, wash/rinse, and dry impacted wildlife.
■	Two wash/rinse stations.
■	Additional one thousand square feet to support rehabilitation, with food preparation, medical lab, dry storage, morgue, and necropsy space.
■	Six hundred square feet of pools.
■	Supporting equipment, supplies, and personal spaces for hot and cold work zones.
■	Twenty-four hour planning standard.
■	Identify personnel, source, and training.


•	Drills:


º	Removes requirement that wildlife drill be additional unless part of multiobjective drill.
º	Adds multiplan holder deployment drill (per RCW 90.56.275):


■	One total (per three year cycle).
■	May involve dedicated and nondedicated equipment, vessels of opportunity (VOO), multiple simultaneous tactics, response to potentially nonfloating oils, and verification of operational readiness over multiple operational periods.
■	May be incorporated into other drill requirements.

Expected impact: We expect the proposed amendments for Type A railroads to result in three types of cost:


•	Plan update costs: These costs are for staff to add personnel, contact, contracts, and narrative descriptions to the plan. For Type A railroads, we assume this cost will be payments to a planning contractor, based on current practice by three existing railroads that would be classified as Type A.
•	SMT retainer contract costs: These costs are paid to SMTs to retain their guaranteed services in the event of a spill.
•	Wildlife response retainer contract costs: These costs are paid to wildlife response providers to retain their services in the event of a spill.

The additional planning and retained available personnel to manage and participate in improved spill response are likely to result in benefits of better and more comprehensive spill response, particularly as it relates to potentially sinking oils and wildlife response.

Based on conversations with ecology's spill prevention, preparedness, and response program staff, as well as conversations with primary response contractors, we do not expect impacts to the types or locations of spill response equipment in the state. Proposed amendments to the planning standards are designed to correspond to current equipment availability.

Requirements for Type B railroads:

Proposed: The proposed amendments make the following changes to requirements for Type B (noncrude-carrying, more than forty-nine tank cars per year) railroads. (Note that most of the proposed amendments match changes proposed for Type A railroads. We have italicized proposed changes that differ for Type B railroads.)


•	Expanding the binding agreement to all parties authorized to implement the contingency plan.
•	Adding a listing of names, addresses, phones, emails of those implementing the contingency plan.
•	Expanding the listing of ICS contact information to include PRC and SMT resources.
•	Adding a structured list of ICS positions. Under contracted circumstances, the name of the whole PRC or SMT can be listed instead of an individual's name.
•	Expanding the description of the planning process to include references to the incident management handbook.
•	Adding a notification documentation form. (Note that this is part of current practice.)
•	Expanding description of sensitive areas to include:


º	Water column and benthic species at risk from sunken, submerged, or nonfloating oil spills.
º	Identification of waterway depths, water density, sediment load, sea floor or river bottom types, and response options based on those factors and risks from nonfloating oil spills.


•	Replacing the planning standard for crude oil with a standard for potentially sinking oils:


º	Include examples: Crude oil, dilbit, GPVRFO, LAPIO, decant, asphalt, and asphalt products.
º	Replaces twelve hour standard for crude with:


■	Six hour capability to initiate assessment of potentially sinking oils.
■	Six to twelve hour resources and equipment to detect and delineate oils, and boom to prevent sinking arrive.
■	Twelve to twenty-four hour resources and equipment to evaluate environmental impact, and equipment to recover from bottom and shoreline arrive.


º	Description of the process to detect, delineate, recover nonfloating oils.


•	Adding to the wildlife planning standard:


º	Plan for impacts to wildlife (with examples on surface and below).
º	Commit to conduct response per NWACP.
º	Contact information for PRC, SMT, contractors available to be on wildlife branch of ICS in twenty-four hours.


•	Drills:


º	One basic tabletop drill every three years.

Expected impact: We expect the proposed amendments for Type B railroads to result in plan update costs. These costs are for staff to add personnel, contact, and narrative descriptions to the plan. For Type B railroads, we assume this cost will be wages for internal employee time, based on current practice by three existing railroads that would be classified as Type B.

The additional planning and retained available personnel to manage and participate in improved spill response are likely to result in benefits of better and more comprehensive spill response, particularly as relates to potentially sinking oils and wildlife response.

While the number of drills would also be reduced for these railroads, this reduction is required by the baseline authorizing statute.

Requirements for Type C railroads:

Proposed: The proposed amendments replace requirements in the baseline rule, for Type C railroads, with requirements verbatim from the law (RCW 90.56.210).

Expected impact: Since the proposed amendments for the three existing railroads that would be classified as Type C railroads are verbatim from the statute, and therefore make no change from baseline, we do not expect these proposed amendments to result in costs or benefits.

However, Type C railroads are required to submit a letter to ecology stating that their plan meets the new requirements. We expect this to result in costs of submission, and benefits of having confirmation that Type C railroads meet the new requirements.

COSTS OF COMPLIANCE: EQUIPMENT: Compliance with the proposed rule, compared to the baseline, is not likely to impose additional costs of equipment.

COSTS OF COMPLIANCE: SUPPLIES:Compliance with the proposed rule, compared to the baseline, is not likely to impose additional costs of supplies.

COSTS OF COMPLIANCE: LABOR: We expect the proposed amendments for Type B railroads to result in plan update costs. These costs are for staff to add personnel, contact, contracts, and narrative descriptions to the plan. For Type B railroads, we assume this cost will be wages for internal employee time, based on current practice by three existing railroads that would be classified as Type B.

Based on spill prevention, preparedness, and response program experience and observation, we assumed this work would take one week of a full-time employee (FTE) to complete, and the work would be done internally. This smaller estimate is based on the significant difference in proposed wildlife response requirements, and allowance of narrative descriptions. We assumed an hourly average wage of $60.63 for general and operations managers.

For the two plan holders that would be classified as Type B railroads, this would result in an immediate one-time cost (with components delayed for up to eighteen months as needed; see section 3.2.4) of $7,276.

Future regular plan reviews and updates would be covered by the baseline rule, and are not considered costs of this rule making.

Total costs for Type B railroads: We estimate total twenty year present value costs (of only one time expenditures, in the case of Type B railroads) across the two Type B railroads, of $7,276.

COSTS OF COMPLIANCE: PROFESSIONAL SERVICES: The proposed amendment to plan submittal requirements would bring the rule into line with current practice. Under APA, considering only what is written in rules and laws, this change would result in:


•	Compared to two paper copies:


º	The cost of electronic submissions.
º	A cost-savings for printing and submitting one less paper copy.


•	Compared to one electronic copy:


º	The cost of printing and submitting a paper copy.

Since current practice has become the lower-cost option of electronic submittal with one paper submittal, we assume plan holders would have chosen the low-cost plan submittal option of one electronic copy. Under this assumption, and comparing only rule language, plan holders would incur the cost of submitting one paper copy. Based on conversations with planning contractors, we estimate printing a copy of the plan and submitting it by certified mail costs $180, resulting in an estimated $900 in total costs for five Type A and Type B plan holders.

We expect the proposed amendments for Type A railroads to result in three types of cost[s]:


•	Plan update costs: These costs are for staff to add personnel, contact, contracts, and narrative descriptions to the plan. For Type A railroads, we assume this cost will be payments to a planning contractor, based on current practice by three existing railroads that would be classified as Type A.
•	SMT retainer contract costs: These costs are paid to SMTs to retain their guaranteed services in the event of a spill.
•	Wildlife response retainer contract costs: These costs are paid to wildlife response providers to retain their services in the event of a spill.

We do not expect costs or benefits for portions of the updates that are part of the baseline (multiplan holder deployment drill) or part of existing contracts offered by PRCs (MRU).

Plan update costs: Based on conversations with planning contractors, we assumed contracted plan updates would cost $40 thousand to $55 thousand each. This cost range reflects two senior-level planners and two to three months of work, and would likely include contract for additional modeling, depending on the railroad. Costs would be highly variable for railroads, because they cut through many different ecosystems. In general, however, smaller railroads (geographically) that operate within a single ecosystem will have smaller costs and require a less complex analysis. Longer railroads and those that cut through many different kinds of ecosystems would experience significant costs for updating their plans, as they would need to account for potential spills in each habitat type they cross, as well as each of the species/types of animals that are likely to be found in these habitats during different seasons.

For the three plan holders that would be classified as Type A railroads, this would result in an immediate one-time cost (with components delayed for up to eighteen months as needed; see section 4.2.4) of $120 thousand to $165 thousand. Future regular plan reviews and updates would be covered by the baseline rule, and are not considered costs of this rule making.

SMT retainer contract costs: Retainer contract costs and types of contract vary across SMTs, and by railroad size and type. Based on conversations with SMTs, we identified that $10 thousand to $100 thousand annually typically covers drills, training, and equipment costs.

One company that provides both SMT and PRC services to railroads does not have retainer costs for their contracts with larger railroads, these contracts are billed directly. The most significant cost for large railroads are drills. These often range between $30 thousand and $50 thousand and occur several times annually. Drills occurring in or near aquatic ecosystems are more expensive than those occurring solely on land.

Assuming all Type A railroads will retain SMT services by ongoing contract, these plan holders would incur annual costs of $10 thousand to $100 thousand annually. Across the three Type A plan holders, this would be a total annual cost of $30 thousand to $300 thousand. The equivalent twenty year present value (future stream of costs converted to current values, based on a risk-free discount rate) would be between $545 thousand and $5.5 million.

Wildlife response retainer contract costs: No railroads currently have retainer contracts with wildlife response providers in Washington state. Based on conversations with wildlife response providers, we estimate that this cost would be between $20 thousand and $35 thousand annually. It would include costs of planning, training plan holder staff, drills, and maintaining equipment. Variation in costs would be influenced by the size of plan holder, affecting the level of service and the number of facilities involved.

Across the three Type A plan holders, this would be a total annual cost of $60 thousand to $105 thousand. The equivalent twenty year present value would be between $1.1 million and $1.9 million.

Total costs for Type A railroads: We estimate total twenty year present value costs (of one time and annual expenditures) across the three Type A railroads, of between $1.7 million and $7.5 million.

COSTS OF COMPLIANCE: ADMINISTRATIVE COSTS: Where applicable, ecology estimates administrative costs (overhead) as part of the cost of labor and professional services, above.

COSTS OF COMPLIANCE: OTHER: Not applicable.

COMPARISON OF COMPLIANCE COST FOR SMALL VERSUS LARGE BUSINESSES: Ecology calculated the estimated per-entity costs to comply with the proposed rule amendments, based on the costs estimated in Chapter 3. In this section, ecology summarizes compliance cost per employee at affected businesses of different sizes.

There are eight railroads covered by the rule. Of these:


•	One is owned by a public entity.
•	Two are owned by one small business.

The small business likely to be covered by the proposed rule amendments employs twenty to forty-nine people. For calculations, we use the low estimate of twenty employees. The largest ten percent of affected businesses (rounded from 0.5 businesses to one business) employ an average of ten thousand or more people. Based on cost estimates from Chapter 3, we estimated the following compliance costs per employee, using the average employment listed.

Table 1: Estimated Compliance Costs Per Employee

Business Size	Average Employment	Average Cost per Employee
Small	20	$182
Largest ten percent (low costs)	10,000	$59
Largest ten percent (high costs)	10,000	$251

We conclude that the proposed rule amendments may have disproportionate impacts on small businesses. Ecology is therefore required to include elements in the proposed rule amendments to mitigate disproportionate compliance costs, to the extent that is legal and feasible.

CONSIDERATION OF LOST SALES OR REVENUE:Businesses that would incur costs could experience reduced sales or revenues if the proposed amendments would significantly affect the prices of the goods they sell. The degree to which this could happen is strongly related to each business's production and pricing model (whether additional lump-sum costs significantly affect marginal costs), as well as the specific attributes of the markets in which they sell goods. This includes the degree of influence of each firm on market prices, and the relative responsiveness of market demand to price changes.

Ecology used the REMI PI+ model for Washington state to estimate the impact during 2019 – 2038 of the proposed rule on directly affected markets, accounting for dynamic adjustments throughout the economy. The model accounts for:


•	Interindustry impacts.
•	Price, wage, and population changes.
•	Dynamic adjustment of all economic variables over time.

As inputs for the REMI model, we assumed costs estimated in Chapter 3 were incurred by the rail industry (North American Industry Classification System (NAICS) code 4821; NAICS 4821), as either one-time costs or ongoing annual costs. We assumed compliance costs were transferred as:


•	Internal wages.
•	Payments to wildlife response contractors (a subcategory of NAICS 5416).
•	Payments to SMTs (a subcategory of NAICS 5416).

The model returns results for aggregate impacts to the state economy, as well as impacts to specific industry groups, by NAICS code. Model results indicated the following impacts to be likely results of the spending necessary to comply with the proposed amendments.

Prices: Under low or high cost assumptions, the REMI model forecasts no significant change (in some years it may be positive but less than 0.001 of an indexed dollar) in the aggregate price index for Washington, or for the final delivered price of rail transportation services. Without a significant change in prices, we would not expect the proposed amendments to impact revenues or sales for covered businesses.

Sales and revenue: Under low cost assumptions, the model forecasts no significant change (in some years it may be negative but less than $1 thousand state-economy-wide; it is not significantly different than zero for the rail transportation industry) in output or demand, as measured in dollar values.

Under high cost assumptions, the model forecasts a $1 thousand reduction in state-economy-wide output. Demand for rail transportation services remains not significantly affected. We examined impacts across all industries, and the impact to the statewide economy is the sum of many very small adjustments across multiple other industries.

MITIGATION OF DISPROPORTIONATE IMPACT:RFA (RCW 19.85.030(2)) states that:

Based upon the extent of disproportionate impact on small business identified in the statement prepared under RCW 19.85.040, the agency shall, where legal and feasible in meeting the stated objectives of the statutes upon which the rule is based, reduce the costs imposed by the rule on small businesses. The agency must consider, without limitation, each of the following methods of reducing the impact of the proposed rule on small businesses:

(a) Reducing, modifying, or eliminating substantive regulatory requirements;

(b) Simplifying, reducing, or eliminating recordkeeping and reporting requirements;

(d) Delaying compliance timetables;

(e) Reducing or modifying fine schedules for noncompliance; or

(f) Any other mitigation techniques including those suggested by small businesses or small business advocates.

Ecology considered all of the above options, and included the following legal and feasible elements in the proposed rule amendments that reduce costs. In addition, ecology considered the alternative rule contents discussed in Chapter 6, and excluded those elements that would have imposed excess compliance burden on businesses.


•	Setting requirements based on oil type (crude vs. noncrude) would result in fewer requirements for Type B railroads than Type A railroads. One Type B railroad is owned by the single small business covered by this rule.
•	Updating plan submission requirements to be consistent with current practice of electronic submittal reduces costs for all plan holders. This inherently reduces costs per employee by more for small businesses.
•	Allowing an SMT member to be listed in two positions in the ICS table reduces the likelihood that a plan holder will need to contract with an external approved SMT.
•	While motivated verbatim by statute, the significant proposed reduction in requirements for Type C railroads would decrease costs for one railroad owned by the single small business covered by this rule.

SMALL BUSINESS AND LOCAL GOVERNMENT CONSULTATION: Ecology involved small businesses and local government in the development of the proposed rule amendments, by:


•	Sending letters to tribes.
•	Communicating via listservs:


º	Spills program listserv.
º	WAC track listserv.
º	Interested parties listserv.


•	Holding a workshop with Type C railroads (Vancouver-Portland Junction, Great Northwest, and Central Washington). One of these railroads is owned by the only impacted small business.
•	Holding two workshops with Type B railroads (Puget Sound and Pacific and Columbia Basin). One of these railroads is owned by the only impacted small business.
•	Holding two workshops with Type A railroads (BNSF, Tacoma Rail, and Union Pacific).
•	Meeting with the Washington state department of fish and wildlife oil spill team unit.
•	Including the utilities and transportation commission, and Washington emergency management division, in all meetings with railroads.

NAICS CODES OF INDUSTRIES IMPACTED BY THE PROPOSED RULE: The proposed rule is likely to impact only covered railroads. All are classified as NAICS 4821, Rail Transportation.

IMPACT ON JOBS:Ecology used the REMI PI+ model for Washington state to estimate the impact of the proposed rule on jobs in the state during 2019 – 2038, accounting for dynamic adjustments throughout the economy. The model accounts for:


•	Interindustry impacts.
•	Price, wage, and population changes.
•	Dynamic adjustment of all economic variables over time.

As inputs for the REMI model, we assumed costs estimated in Chapter 3 were incurred by the rail industry (NAICS 4821), as either one-time costs or ongoing annual costs. We assumed compliance costs were transferred as:


•	Internal wages.
•	Payments to wildlife response contractors (a subcategory of NAICS 5416).
•	Payments to SMTs (a subcategory of NAICS 5416).

The model returns results for aggregate employment impacts to the state economy, as well as impacts to specific industry groups, by NAICS code. Model results indicated the following impacts to be likely results of the spending necessary to comply with the proposed amendments.

Aggregate employment: Under low cost assumptions, the REMI model forecasts the proposed amendments would result in the sustained loss of one aggregate job statewide. Under high cost assumptions, this impact would increase to one aggregate job lost in 2019, increasing to six jobs by 2025 – 2027, then decreasing and stabilizing at five jobs lost. We examined the origin of these total job losses, and found that they are based on multiple small (one job or less) forecast losses across multiple industries, resulting from very small adjustments in prices and wages statewide.

Rail industry employment: Under low cost assumptions, the model forecasts the proposed amendments would not result in significant job losses in the rail transportation industry. Under high cost assumptions, this impact would increase to the sustained loss of one job beginning in 2021.

A copy of the statement may be obtained by contacting Nhi Irwin, P.O. Box 47600, Olympia, WA 98502, phone 360-407-7039, people with speech disability may call TTY at 877-833-6341, people with impaired hearing may call Washington relay service at 711, to request ADA accommodation for disabilities, or printed materials in a format for the visually impaired, call ecology at 360-407-7668 or visit https://ecology.wa.gov/accessibility, email nhi.irwin@ecy.wa.gov.

June 3, 2019

Polly Zehm

Deputy Director

AMENDATORY SECTION(Amending WSR 16-18-052, filed 8/31/16, effective 10/1/16)

WAC 173-186-010Purpose.

The purpose of this chapter is to establish railroad oil spill contingency plan requirements, drill and equipment verification requirements, and provisions for inspection of records, effects of noncompliance, and enforcement, which:

(1) Ensure maximally effective and rapid responses to oil spills by plan holders, spill management teams (SMT), wildlife response providers (WRP) and primary response contractors (PRC);

(2) Ensure constant readiness, well-maintained equipment and trained personnel;

(3) Support coordination with state, federal, local, tribal and other contingency planning efforts;

(4) Provide for the protection of Washington waters, and natural, cultural and significant economic resources by minimizing the impact of oil spills; and

(5) Provide the highest level of protection that can be met through the use of best achievable technology and those staffing levels, training procedures, and operational methods that constitute best achievable protection (BAP) as informed by the BAP five year review cycle (WAC 173-186-410) and as determined by ecology.

AMENDATORY SECTION(Amending WSR 16-18-052, filed 8/31/16, effective 10/1/16)

WAC 173-186-020Applicability.

(1) This chapter applies to:

(a) Railroad facilities required to submit oil spill contingency plans under chapter 90.56 RCW except for facilities as described in subsection (2) of this section.

(b) Railroad facility owners or operators who lease access to state owned railroad tracks.

(d) Primary response contractors (PRCs) under contract to railroad contingency plan holders.

(e) SMTs that provide spill management services that must be approved by ecology to be cited in a contingency plan.

(f) WRPs that provide wildlife response services that must be approved by ecology to be cited in a contingency plan.

(2) This chapter does not apply to:

(a) A railroad that is owned and operated by the state.

(b) Pipelines or facilities other than railroads. Contingency planning regulations for pipelines and facilities other than railroads are described in chapter 173-182 WAC.

AMENDATORY SECTION(Amending WSR 16-18-052, filed 8/31/16, effective 10/1/16)

WAC 173-186-040Definitions.

Unless the context clearly requires otherwise, the definitions in chapters 90.56 RCW, 173-182 WAC and the following apply to this chapter.

"Bulk" means material that is stored or transported in a loose, unpackaged liquid, powder, or granular form capable of being conveyed by a pipe, bucket, chute, or belt system.

"Cargo" means goods or services carried as freight for commerce.

"Facility" means:

(a) Any structure, group of structures, equipment, pipeline, or device, other than a vessel, located on or near the navigable waters of the state that transfers oil in bulk to or from a tank vessel or pipeline, that is used for producing, storing, handling, transferring, processing, or transporting oil in bulk.

(b) For the purposes of oil spill contingency planning in RCW 90.56.210, facility also means a railroad that is not owned by the state that transports oil as bulk cargo.

(i) Railroad car, motor vehicle, or other rolling stock while transporting oil over the highways or rail lines of this state;

(ii) Underground storage tank regulated by the department or a local government under chapter 90.76 RCW;

(iii) Motor vehicle motor fuel outlet;

(iv) Facility that is operated as part of an exempt agricultural activity as provided in RCW 82.04.330; or

(v) Marine fuel outlet that does not dispense more than three thousand gallons of fuel to a ship that is not a covered vessel, in a single transaction.

"Oil" or "oils" means oil of any kind that is liquid at twenty-five degrees Celsius and one atmosphere of pressure and any fractionation thereof including, but not limited to, crude oil, bitumen, synthetic crude oil, natural gas well condensate, petroleum, gasoline, fuel oil, diesel oil, biological oils and blends, oil sludge, oil refuse, and oil mixed with wastes other than dredged spoil. Oil does not include any substance listed in Table 302.4 of 40 C.F.R. Part 302 adopted August 14, 1989, under Section 102(a) of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by P.L. 99-499.

"Owner" or "operator" means, in the case of a railroad, any person owning or operating the railroad. Operator does not include any person who owns the land underlying a railroad if the person is not involved in the operations of the railroad.

"Planning standards" means goals and criteria that ecology will use to assess whether a plan holder is prepared to respond to the maximum extent practicable to a worst case spill. Ecology will use planning standards for reviewing oil spill contingency plans and evaluating drills.

"Rail plan holder" means a person who submits and implements a railroad contingency plan consistent with RCW 90.56.210 on the person's own behalf or on behalf of one or more persons.

"Spill management team" means representatives and assigned personnel who are qualified and capable of integrating into an incident command system or unified command system and managing a spill.

"Tank car" means a rail car, the body of which consists of a tank for transporting liquids.

"TYPE A" means any railroad classification transporting oil in bulk that is crude oil regardless of volume.

"TYPE B" means any railroad classification transporting oil in bulk that is not crude oil in an amount of forty-nine or more tank car loads per year.

"TYPE C" means any railroad classification transporting oil in bulk that is not crude oil in an amount less than forty-nine tank car loads per year.

"Wildlife response provider" means representatives and assigned personnel who are qualified and capable of assuming the responsibilities of the wildlife branch during an oil spill.

"Worldwide response resource list (WRRL)" means an equipment list established and maintained by spill response equipment owners.

"Worst case spill" means, in the case of a railroad, a spill that includes the entire fuel capacity of the locomotive and the entire cargo capacity of the largest number of cargo rail cars carried by the railroad, based on seven hundred fourteen barrels per tank car, complicated by adverse weather conditions unless ecology determines that a larger or smaller volume is more appropriate given a particular facility's site characteristics and storage, unique operations, industry spill history and transfer capacity.

PART II: ((OIL SPILL CONTINGENCY PLANS))PLAN SUBMITTAL, MAINTENANCE AND IMPLEMENTATION

((Section A—Plan Submittal and Maintenance))

AMENDATORY SECTION(Amending WSR 16-18-052, filed 8/31/16, effective 10/1/16)

WAC 173-186-110Submitting a railroad contingency plan.

(1) The rail plan holder shall submit ((two copies))one hard copy and electronic copy of the plan and all appendices. ((Electronic submission of plans is encouraged, provided it is in an electronic format acceptable to ecology. In the case of electronic submission, only one copy is necessary.))

(2) Once the initial plan is approved, rail plan holders shall resubmit their plans to ecology every five years for review and approval.

(3) Ecology will maintain mailing address and electronic submittal instructions on the agency web site.

AMENDATORY SECTION(Amending WSR 16-18-052, filed 8/31/16, effective 10/1/16)

WAC 173-186-120Phase-in dates for this chapter.

(((1) Railroads that transport crude oil, currently operating in Washington, shall submit plans to ecology no more than ninety days after the effective date of this chapter; however, no later than within thirty days after the effective date of this chapter the rail plan holder shall provide ecology either a federal plan or the following information to demonstrate capability for response to oil spills:

(a) Contact information for the railroad.

(b) Notification procedures in case of spills to water.

(d) Letter of intent with a primary response contractor.

If the plan covers operations in areas where geographic response plans do not currently exist, the plan will be submitted without that information and a timeline to develop interim resources at risk data will be developed together by the plan holder and ecology.

(2) Railroads exclusively transporting oils other than crude oil, currently operating in Washington, shall submit a plan to ecology or have enrolled in an integrated plan no more than one hundred eighty days after the effective date of this chapter; however, no later than within ninety days after the effective date of this chapter the rail plan holder shall provide ecology either a federal plan or the following information to demonstrate capability for response to oil spills:

(a) Contact information for the railroad.

(b) Notification procedures in case of spills to water.

(d) Letter of intent with a primary response contractor.

(3) If upon initial plan review ecology determines that there is insufficient access to equipment described in WAC 173-186-310, railroads shall have no more than eighteen additional months after initial plan review to reach full compliance with the equipment planning standards.

(4) For rail plan holders exclusively transporting oils other than crude oils, a letter of intent with a contractor shall initially be sufficient to meet WAC 173-186-220. The rail plan holders shall then have an additional twelve months to secure a contract with a primary response contractor after initial plan approval.))(1) This section applies to those plan holders who, on the effective date of this chapter, have approved or conditionally approved plans. Each update must contain all necessary content and meet the requirements of this chapter.

(2) Existing approved railroads defined as Type A shall within eighteen months after the effective date of this chapter submit updates for:

(a) Binding agreement (WAC 173-186-210).

(b) Contingency plan general content - Notification information relating to SMTs, WRPs, contracts or other approved documents, personnel listed in ICS roles in an organizational table, and description of type and frequency of training (WAC 173-186-220).

(c) Contingency plan general content - Reference to an incident management handbook or detailed description of planning process (WAC 173-186-220).

(d) Contingency plan general content - List of resources at risk considering water column and benthic species and habitat, identification of waterways depth and response options based on those factors. (WAC 173-186-220). This update will be met through planned updates to the geographic response plans which are developed as annexes to the Northwest Area Contingency Plan.

(e) Field document - Notification form (WAC 173-186-230).

(f) Nonfloating oils planning standard (WAC 173-186-330).

(g) Meet the requirements for access to equipment and personnel to support initial wildlife assessment, wildlife deterrence, and mobile field stabilization assets (WAC 173-186-370).

(h) Drill types and frequency (WAC 173-186-510 and 173-186-530).

(3) For existing approved railroads defined as Type B, shall within eighteen months after the effective date of this chapter submit updates for:

(a) Binding agreement (WAC 173-186-602).

(b) Contingency plan general content - Reference to an incident management handbook or detailed description of planning process (WAC 173-186-603).

(c) Contingency plan general content - Notification information relating to SMTs, WRPs, personnel listed in ICS roles in an organizational table, and description of type and frequency of training dependent of ICS position (WAC 173-186-603).

(d) Contingency plan general content - List of resources at risk considering water column and benthic species and habitat, identification of waterway depth and response option based on those factors. (WAC 173-186-603). This update will be met through planned updates to the geographic response plans which are developed as annexes to the Northwest Area Contingency Plan.

(e) Field document - Notification form (WAC 173-186-604).

(f) Drills (WAC 173-186-800 and 173-186-810).

(4) For existing approved railroads defined as Type C, within eighteen months of the effective date of this rule:

(a) Send a letter to ecology stating that the plan is complete and still meets all requirements; or

(b) Update the plan with any missing required information.

(5) Final plan updates will be given a thirty day public review and comment period. Ecology will approve, disapprove, or conditionally approve the plan update no later than sixty-five days from the update submittal date.

AMENDATORY SECTION(Amending WSR 16-18-052, filed 8/31/16, effective 10/1/16)

WAC 173-186-140Significant changes to approved plans.

(1) At any point during the five year approval period, if there is a temporary or permanent significant change in the personnel or response equipment described in the plan, the rail plan holder shall:

(a) Notify ecology in writing within twenty-four hours of the change; and

(b) Provide both a schedule for the prompt return of the plan to full operational status and a proposal for any backfill to compensate for the temporary significant change. This proposal shall be reviewed and approved by ecology.

(2) Changes which are considered significant include:

(a) Loss of equipment that results in being out of compliance with any planning standard;

(b) Movement of greater than ten percent of available boom, storage, recovery, in situ burn or shoreline cleanup equipment out of the home base as depicted on the ((western))worldwide regional response list (WRRL);

(d) Permanent loss of initial response personnel listed in command and general staff incident command system (ICS) positions provided in the plan;

(e) Permanent loss of personnel designated as the binding agreement signer;

(f) Changes in the oil types handled; permanent changes in storage capacity; changes in handling or transporting of an oil product;

(g) Changes in equipment ownership if used to satisfy a rail plan holder planning standard; or

(h) Modification or discontinuation of any mutual aid, letter of intent or contract or letter of agreement.

(3) Notification by facsimile or email will be considered written notice.

(4) Failure to report significant changes in the plan could result in the loss of plan approval.

(5) If the proposed change to the plan is to be made permanent, the rail plan holder then shall have thirty calendar days from notification to ecology to distribute the amended page(s) of the contingency plan to ecology for review and approval.

(6) If ecology finds that, as a result of a change, the plan no longer meets approval criteria; ecology may place the plan into conditional approval or disapprove the plan.

NEW SECTION

WAC 173-186-160Plan implementation procedures.

Every rail plan holder is required to implement the ecology approved plan in any response to an oil spill and drill. A decision to use a different plan shall first be approved by the state and federal on-scene coordinators.

NEW SECTION

WAC 173-186-170Inspection of records.

Ecology may verify compliance with this chapter by examining:

(1) Training and equipment maintenance records;

(2) Drill records;

(3) Accuracy of call-out and notification lists;

(4) Spill management team lists;

(5) ICS forms;

(6) Waste disposal records; and

(7) Post-spill reviews and other records on lessons learned.

NEW SECTION

WAC 173-186-180Enforcement—Noncompliance.

(1) If an owner or operator of a railroad, a person, or rail plan holder is unable to comply with an approved contingency plan or otherwise fails to comply with requirements of this chapter, ecology may, at its discretion:

(a) Place conditions on plan approval.

(b) Require additional drills to demonstrate effectiveness of the plan.

(2) Approval of a plan by ecology does not constitute an express assurance regarding the adequacy of the plan nor constitute a defense to liability imposed under state law.

(3) Any violation of this chapter may be subject to enforcement and penalty sanctions.

(4) Ecology may assess a civil penalty of up to one hundred thousand dollars against any person who is in violation of this chapter. Each day that a railroad is in violation of this chapter shall be considered a separate violation.

(5) Any person found guilty of willfully violating any of the provisions of this chapter, or any final written orders or directive of ecology or a court shall be deemed guilty of a gross misdemeanor and upon conviction shall be punished by a fine of up to ten thousand dollars and costs of prosecution, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment in the discretion of the court. Each day upon which a willful violation of the provisions of this chapter occurs may be deemed a separate and additional violation.

NEW SECTION

WAC 173-186-190Severability.

If any provision of this chapter is held invalid, the remainder of the chapter is not affected.

PART III: OIL SPILL CONTINGENCY PLANS FOR TYPE A RAILROADS

Section ((B))A—Contingency Plan Format, Content and Implementation

AMENDATORY SECTION(Amending WSR 16-18-052, filed 8/31/16, effective 10/1/16)

WAC 173-186-210Binding agreement.

(1) Each plan shall contain a written ((statement binding the rail plan holder to its use. Form number ECY 070-550 may be used.

(2) The binding agreement shall be signed by each of the following: (a) The rail plan holder, (b) the owner or operator, or a designee with authority to bind the owners and operators of the railroad covered by the plan.

(3) The plan holder shall submit the agreement with the plan and shall include the name, address, phone number, and if appropriate the email address, and web site of the submitting party.

(4) In the statement, the signator shall:

(a) Verify acceptance of the plan and commit to a safe and immediate response to spills and to substantial threats of spills that occur in, or could impact Washington waters or Washington's natural, cultural and economic resources;

(b) Commit to having an incident commander in the state within six hours after notification of a spill;

(c) Commit to the implementation and use of the plan during a spill and substantial threat of a spill, and to the training of personnel to implement the plan;

(d) Verify authority and capability to make necessary and appropriate expenditures in order to implement plan provisions; and

(e) Commit to working in unified command within the ICS))agreement binding the contingency plan submitter to its use. The person(s) signing the agreement shall be authorized to make expenditures to implement the requirements in subsection (2) of this section. Form number ECY 070 550 may be used. The binding agreement shall be signed by:

(a) An authorized owner, or operator, or a designee with authority to bind the owners and operators of the facilities or vessels covered by the plan;

(b) An authorized representative(s) of a company contracted to the vessel or facility and approved by ecology to provide containment and clean-up services.

(2) The agreement is submitted with the plan and will include the name, address, phone number, email address, and web site of the submitting party. The signator will:

(b) Commit to having an incident commander in the state within six hours after notification of a spill;

(c) Commit to the implementation and use of the plan during a spill and substantial threat of a spill, and to the training of personnel to implement the plan;

(d) Verify authority and capability to make necessary and appropriate expenditures in order to implement plan provisions; and

(e) Commit to working in unified command within the incident command system to ensure that all personnel and equipment resources necessary to the response will be called out to cleanup the spill safely and to the maximum extent practicable.

AMENDATORY SECTION(Amending WSR 16-18-052, filed 8/31/16, effective 10/1/16)

WAC 173-186-220Contingency plan general content.

(1) Contingency plans shall include all of the content and meet all the requirements in this section.

(2) In Washington state, the Northwest Area Contingency Plan (NWACP) serves as the statewide master oil and hazardous substance contingency plan required by RCW 90.56.060. Rail plan holders shall write plans that refer to and are consistent with the NWACP.

(3) All contingency plans shall include the following:

(a) Each plan shall state the name, location, type and address of the facility and the federal or state requirements intended to be met by the plan.

(b) Each plan shall state the size of the worst case spill volume. If oil handling operations vary on different rail routes, more than one worst case spill volume may be submitted to ecology for consideration.

(c) Each plan shall have a log sheet to record revisions and updates to the plan. The log sheet shall identify each section amended, including the date and page of the amendment and the name of the authorized person making the change.

(d) Each plan shall have a table of contents and a cross-reference table reflecting the locations in the plan of each component required by this chapter.

(e) Each plan shall provide a list and map of expected rail routes in Washington and a description of the operations covered by the plan, including locations where fueling occurs and an inventory of above ground storage tanks and the tank capacities.

An inventory of above ground storage tanks and tank capacities is not required if the total above ground storage capacity from containers with capacity of at least fifty-five gallons is less than one thousand three hundred twenty gallons.

(f) Each plan shall list all oil cargo transported, including region of origin, oil types, physical properties, and health and safety hazards of the oil cargo. A safety data sheet (SDS) or equivalent information may satisfy some of these requirements; the plan shall identify where the SDS or equivalent is kept for emergency response use.

(g) Each plan shall ((have the PRC's))include contact information for the PRC, SMT, and WRP resources contracted to meet plan holder planning standards. Contact information must include the name, address, twenty-four-hour phone number, or other means of contact at any time of the day((, and include:)).

(i) A contract or letter summarizing the terms of the contract signed by the PRC, SMT, or WRP, shall be included in the plan. If the entire contract is not submitted, that document shall be available for inspection, if requested by ecology.

(ii) For mutual aid agreements that a rail plan holder relies on to meet the planning standards, the plan shall include a copy of the agreement and describe the terms of that document in the plan.

(h) Each plan shall contain information on the personnel (including contract personnel) who will be available to manage an oil spill response. This includes:

(i) An organizational diagram depicting the chain of command for the ((spill management team))SMT for a worst case spill.

(ii) ((An organization list of one primary and one alternate person to lead each ICS spill management position down to the section chief and command staff level as depicted in the NWACP standard ICS organizational chart. If a response contractor is used to fill positions, they shall agree in writing to staff the positions. If the entire contract for additional spill management team support is not included in the plan, that document shall be made available for inspection, if requested by ecology.))For the purpose of ensuring depth of the SMT, a table detailing the names of personnel to fill the following ICS roles or the name of the SMT contracted to fill the roles. Named personnel may be listed a maximum of two times. Personnel filling key roles do not need to be a resident in Washington state.

ICS Position	Name	Name	Name
Responsible party incident commander
Public information officer
Liaison officer
Safety officer
Operations section chief
Air operations branch		X	X
Planning section chief
Situation unit leader		X	X
Resources unit leader		X	X
Documentation unit leader		X	X
Environmental unit leader		X	X
Logistics section chief
Finance section chief

X = Not required

The plan must identify incident commanders, if located out-of-state, that could arrive in state by six hours to form unified command. If a response contractor or SMT is used to fill positions, they must have an approved application on file with the state and they must agree in writing, either through contract or other approvable means, to staff the positions. In this case, the name of the contractor or SMT may be used in the table rather than an individual.

If the entire contract for additional SMT support is not included in the plan, that document shall be made available for inspection, if requested by ecology.

(iii) A detailed description of the planning process ((and))or a reference to the incident management handbook with planning process descriptions and meeting agendas. A job description for each spill management position or a reference to the incident management handbook with position descriptions; except if the rail plan holder follows without deviation the planning process or job descriptions contained in the NWACP. If the planning process or job descriptions are consistent with those contained in the NWACP, then the rail plan holder may reference the NWACP rather than repeat the information.

(iv) Include a description of the type and frequency of training that the spill management team receives, which shall include at a minimum, dependent on the position, ICS, NWACP policies, use and location of geographic response plans (GRPs), the contents of the plan and worker health and safety. New employees shall complete the training program prior to being assigned job responsibilities which require participation in emergency response situations.

(((v) Identify a primary and alternate incident commander's representative that can form unified command at the initial command post, and if located out-of-state, a primary and alternate incident commander that could arrive at the initial command post within six hours.))

(i) Each plan shall include procedures for immediately notifying appropriate parties that a spill or a substantial threat of a spill has occurred. The procedures shall establish a clear order of priority for immediate notification and include:

(i) A list of the names and phone numbers of required notifications to government agencies, response contractors and spill management team members. The notification section shall include names and phone numbers, except that the portion of the list containing internal call down information need not be included in the plan, but shall be available for review by ecology upon request and verified during spills and drills.

(ii) Identify the central reporting office or individuals responsible for implementing the notification process.

(iii) Include a form to document those notifications.

(j) Each plan shall contain the procedures to track and account for the entire volume of oil recovered and oily wastes generated and disposed of during spills. The responsible party shall provide waste disposal records to ecology upon request.

(k) Each plan shall state how an oil spill will be assessed for determining product type, potential spill volume, and environmental conditions including tides, currents, weather, river speed and initial trajectory as well as a safety assessment including air monitoring.

(i) Each plan shall list procedures that will be used to confirm the occurrence, and estimate the quantity and nature of the spill. An updated notification report is required if the initially reported estimated quantity or the area extent of the contamination changes significantly. Rail plan holders and responsible parties are required to document their initial spill actions and the plan shall include the forms that will be used for such documentation.

(ii) The plan shall contain a checklist that identifies significant steps used to respond to a spill, listed in a logical progression of response activities.

(l) Each plan shall include a description of the methods to be used to promptly assess spills with the potential to impact groundwater, including contact information in the plan for resources typically used to investigate, contain and remediate/recover spills to groundwater.

(m) Each plan shall include concise procedures to manage oil spill liability claims of damages to persons or property, public or private, for which a responsible party may be liable.

(n) Each plan shall include a description of the sensitive areas and a description of how environmental protection will be achieved, including containment, enhanced collection and diversion tactics.

(i) The plan shall include information on natural, cultural and economic resources, coastal and aquatic habitat types and sensitivity by season, breeding sites, presence of state or federally listed endangered or threatened species, and presence of commercial and recreational species, physical geographic features, including relative isolation of coastal regions, beach types, and other geological characteristics; public beaches, water intakes including both drinking and agricultural water supplies, private and public wells that supply drinking water, and marinas; shellfish resources, significant economic resources and vulnerable populations to be protected in the geographic area covered by the plan.

(ii) Identification of sensitive resources will not be limited to surface and shoreline species at risk from floating oil spills but will also consider water column and benthic species at risk from sunken, submerged, or nonfloating oil spills. Identification of waterway depths, water density, sediment load, sea floor or river bottom types, and response options based on those factors and risks from nonfloating oil spills.

(iii) The GRPs have been developed to meet these requirements and plans may refer to the NWACP to meet these requirements. If railroad facilities occur in areas where descriptions of the sensitive areas and a description of how environmental protection will be achieved do not exist, railroad plan holders will submit summary descriptions of the sensitive areas and prepare booming strategy "control points" for waterways in the vicinity of the railroad tracks.

(o) Each plan shall identify potential initial command post locations.

(p) Each plan shall contain a description of how the rail plan holder meets each applicable planning standard in Section C of this chapter.

AMENDATORY SECTION(Amending WSR 16-18-052, filed 8/31/16, effective 10/1/16)

WAC 173-186-230Field document.

(1) Each plan shall contain a field document which lists time critical information for the initial emergency phase of a spill or a substantial threat of a spill. The owner or operator of the railroad shall make the field document available to personnel who participate in oil handling operations and shall keep the field document in key locations for use during an initial response. The locations where field documents are kept shall be listed in the plan.

(2) At a minimum, the field document shall contain:

(a) Procedures to detect, assess and document the presence and size of a spill;

(b) Spill notification procedures including a form to document them when made; and

(c) The checklist that identifies significant steps used to respond to a spill, listed in a logical progression of response activities.

Section ((C))B—Planning Standards

AMENDATORY SECTION(Amending WSR 16-18-052, filed 8/31/16, effective 10/1/16)

WAC 173-186-330Planning standards for ((crude oils))spills of oils that, depending on their chemical properties, environmental factors (weathering), and method of discharge, may submerge or sink.

(1) ((Rail))Plan holders carrying, handling, storing, or transporting ((crude oils shall have a letter of intent with a primary response contractor that maintains the resources and/or capabilities necessary to respond to a spill of oil that may weather, and sink or submerge. Such equipment shall include, but is not limited to, the following:

(a) Sonar, sampling equipment or other methods to locate the oil on the bottom or suspended in the water column;

(b) Containment boom, sorbent boom, silt curtains, or other methods for containing the oil that may remain floating on the surface or to reduce spreading on the bottom;

(d) Equipment necessary to assess the impact of such discharges; and

(e) Other appropriate equipment necessary to respond to a discharge involving the type of oil handled, stored, or transported.

(2) The equipment shall be capable of being on scene within twelve hours of spill notification))oils, that may weather and sink when spilled to the environment, must have a contract with a PRC that maintains the resources and/or capabilities necessary to respond to a spill of nonfloating oil spills.

(2) The plan holders or contracted primary response contractors must have equipment capable of arriving within the time frames outlined in the table below:

Time (hours)	Capability
6	Initiate an assessment and consultation regarding the potential for the spilled oil to submerge or sink.
6-12	Resources to detect and delineate the spilled oil such as side scan or multibeam sonar, sampling equipment, divers, remotely operated vehicles or other methods to locate the oil on the bottom or suspended in the water column could have arrived.
	Additionally, containment boom, sorbent boom, silt curtains, or other methods for containing the oil that may remain floating on the surface or to reduce spreading on the bottom could have arrived.
12-24	Resources and equipment necessary to assess the impact of the spilled oil on the environment oil could have arrived.
	Dredges, submersible pumps, or other equipment necessary to recover oil from the bottom and shoreline could have arrived.

(3) Additionally, the contingency plan must detail the process for identifying if the oil handled will sink and include a description of the process for detecting, delineating, and recovering nonfloating oils in the areas that may be impacted. In lieu of including nonfloating oils response details in the contingency plan, plan holders may cite the nonfloating oils response tools found in the NWACP.

AMENDATORY SECTION(Amending WSR 16-18-052, filed 8/31/16, effective 10/1/16)

WAC 173-186-370Planning standards for wildlife rescue and rehabilitation.

((Each plan shall identify applicable federal, state and NWACP requirements for wildlife rescue and rehabilitation, and describe the equipment, personnel, resource and strategies for compliance with the requirements. These resources shall have the capability to arrive on scene within twenty-four hours of spill notification.))Plan holders must plan to respond to and care for wildlife injured or endangered by oil spills.

(1) The plan must include contact information for any PRC or WRP, available under contract or other approvable means, and that maintain the required equipment, personnel, permits, materials, and supplies, for conducting wildlife response operations in accordance with the capabilities detailed below.

(2) The plan shall describe the equipment, personnel, and resources for wildlife response, including:

(a) Equipment and personnel that may be used to support an initial impact assessment and wildlife reconnaissance via air, land, or water in the spill area.

(b) Equipment and personnel that may be used to deter the types of wildlife likely to be found within the areas where the plan holder operates or transits, including the types and staging locations of the deterrent equipment. This equipment must have the capability to arrive on-scene within twelve hours of spill notification.

(c) Equipment and supplies for mobile field stabilization activities, such as, conducting the initial health assessment and treatment of impacted wildlife prior to transport to a wildlife rehabilitation facility. The mobile field stabilization asset must be a minimum of one hundred eighty square feet, lighted and heated, and capable of arriving on-scene within twelve hours of spill notification.

(d) Wildlife rehabilitation facilities, space, and equipment suitable to conduct wildlife rehabilitation activities. Wildlife rehabilitation facilities shall meet the WDFW rehabilitation requirements detailed in WAC 220-450-100. For planning purposes, the capability described below is equal to one wildlife rehabilitation unit. The plan holder must have access to one wildlife rehabilitation unit with the capability to be strategically placed to support the response within twenty-four hours of spill notification. Each wildlife rehabilitation unit must contain:

(i) A minimum of one thousand one hundred square feet of space to house and treat wildlife. This space shall have the ability to be configured to support intake, prewash stabilization, wash/rinse, and drying activities as needed. A minimum of two wash and rinse stations will be located within this space.

(ii) A minimum of one thousand square feet of space to support rehabilitation activities. This space shall have the ability to be configured to support: Animal food preparation, medical lab, dry storage, morgue and necropsy areas.

(iii) Pools with a minimum of six hundred square feet of surface area are required. Pool dimensions will be such that no point in a pool will be greater than eight feet from a side. Pools will have the ability to be filled with freshwater to a minimum depth of three feet.

(3) WRP that are appropriately trained to staff and manage the wildlife response within an incident command structure. At a minimum, one person that could be able to arrive in the state within the first twelve hours of spill notification to coordinate with the state, federal, tribal, and other response partners to initiate wildlife reconnaissance, deterrence, recovery, stabilization, and rehabilitation operations as needed.

(4) Wildlife operations field staff to conduct and manage the various field aspects of a wildlife response including reconnaissance, deterrence, recovery, stabilization, and rehabilitation. At a minimum, two personnel that could have arrived within the first twelve hours of spill notification to support these activities. An additional seven personnel, for a total of nine that could have arrived within twenty-four hours of spill notification to support these activities.

AMENDATORY SECTION(Amending WSR 16-18-052, filed 8/31/16, effective 10/1/16)

WAC 173-186-380Documenting compliance with the planning standards.

(1) The rail plan holder shall describe how the planning standards found in this chapter are met.

(2) The rail plan holder shall include in the plan, a spreadsheet provided by ecology on the resources to meet the planning standards as described in this chapter. This spreadsheet shall account for boom, recovery systems, storage, and personnel ((by type, quantity, home base and provider)).

(3) Ecology will use the process and criteria found in WAC 173-182-350 to analyze the spreadsheet.

Section ((D))C—Plan Evaluation

((PART III: DRILL AND EQUIPMENT VERIFICATION PROGRAM))Section D: Drill and Equipment Verification Program

AMENDATORY SECTION(Amending WSR 16-18-052, filed 8/31/16, effective 10/1/16)

WAC 173-186-500Drill participation, scheduling and evaluation.

(1) Rail plan holders ((and)), PRCs, SMTs and WRPs shall participate in a drill and equipment verification program for the purpose of ensuring that all contingency plan components function to provide, to the maximum extent practicable, prompt and proper removal of oil and minimization of damage from a variety of spill sizes. In Washington, a modified triennial cycle for drills, as found in the National Preparedness for Response Exercise Program (NPREP), is relied on to test each component of the plan.

(2) Ecology's participation in drills: Rail plan holders and PRCs shall ensure ecology is provided an opportunity to help design and evaluate all tabletop and deployment drills for which the rail plan holder desires drill credit.

(3) Scheduling drills: Rail plan holders shall schedule drills on the NWACP area exercise calendar. Drill scheduling requirements are listed in the table in WAC 173-186-510.

(4) Evaluating drills: Ecology shall provide a written drill evaluation report to the rail plan holder following each drill. Credit will be granted for drill objectives that are successfully met.

(5) Objectives that are not successfully met shall be tested again and successfully demonstrated within the triennial cycle, except that significant failures will be retested within thirty days.

(6) Where plan deficiencies have been identified in the written evaluation, rail plan holders may be required to make specific amendments to the plan or conduct additional trainings to address the deficiencies.

(7) A rail plan holder may request an informal review with ecology of the ecology drill evaluation within thirty days of receipt of the report.

AMENDATORY SECTION(Amending WSR 16-18-052, filed 8/31/16, effective 10/1/16)

WAC 173-186-510Type and frequency of drills.

To receive the credit from ecology for performing a required drill, the plan holder shall conduct the following drills within each triennial cycle.

Type of Drill	Frequency Within the Triennial Cycle	Special Instructions	Scheduling Instructions
Tabletop drills	3 - One in each year of the cycle	One of the three shall involve a worst case discharge scenario. The worst case discharge scenario drill shall be conducted once every three years.	Scheduled at least 60 days in advance, except the worst case discharge scenario at least 90 days in advance.
Deployment drills	6 - Two per year	These drills include notification, safety assessments, GRP and equipment deployments.	Scheduled at least 30 days in advance.
Ecology initiated unannounced drills	As necessary	This drill may involve testing any component of the plan, including notification procedures, deployment of personnel, boom, recovery and storage equipment, and verification of ecology approved alternative speeds.	No notice.
Wildlife deployment drill	1 - One in each three-year cycle. This is an additional drill unless it is incorporated into a large multiobjective deployment drill	This drill will be a deployment of wildlife equipment and wildlife handlers.	Scheduled at least 30 days in advance.
Multiplan holder deployment drill	1 - One in each three-year cycle	This drill may involve dedicated and nondedicated equipment, vessels of opportunity, multiple simultaneous tactics, responses to potentially nonfloating oils, and the verification of operational readiness over multiple operational periods.	Scheduled at least 90 days in advance.

(1) Tabletop drills: Tabletop drills are intended to demonstrate a rail plan holder's capability to manage a spill using the ICS, the SMT, and WRP described in the plan. Role playing shall be required in this drill.

(a) During all required tabletop drills rail plan holders shall provide a master list of equipment and personnel identified to fill both command post and field operations roles.

(b) Once during each three-year cycle, the rail plan holder shall ensure that key members of the regional/national "away" team as identified in the plan shall be mobilized in state for a tabletop drill. However, at ecology's discretion, team members that are out-of-state may be evaluated in out-of-state tabletop drills if ecology has sufficient notice, an opportunity to participate in the drill planning process, and provided that the out-of-state drills are of similar scope and scale to what would have occurred in state. In this case, key away team members shall be mobilized in this state at least once every six years.

(2) Deployment drills: Rail plan holders shall use deployment drills to demonstrate the actions they would take in a spill, including: Notifications, safety actions, environmental assessment, land-based tactics and equipment deployment.

(a) During the triennial cycle, deployment drills shall include a combination of rail plan holder owned assets, contracted PRC assets, and nondedicated assets.

(b) Rail plan holders should ensure that each type of dedicated equipment listed in the plan and personnel responsible for operating the equipment are tested during each triennial cycle.

(c) Rail plan holders shall design drills that will demonstrate the ability to meet the planning standards, including recovery systems and system compatibility and the suitability of the system for the operating environment. Drills shall be conducted in all operating environments that the rail plan holder could impact from spills.

(d) At least twice during a triennial cycle, rail plan holders shall deploy a GRP or sensitive area strategy identified within the plan.

(e) Rail plan holders may receive credit for deployment drills conducted by PRCs if:

(i) The PRC is listed in the plan; and

(ii) The rail plan holder operates in the area, schedules on the drill calendar, and participates in or observes the drill.

(3) Unannounced drills: Unannounced drills may be initiated by ecology when specific problems are noted with individual rail plan holders, or randomly, to strategically ensure that all operating environments, personnel and equipment readiness have been adequately tested.

(a) Immediately prior to the start of an unannounced drill, rail plan holders will be notified in writing of the drill objectives, expectations and scenario.

(b) Rail plan holders may request to be excused from an unannounced drill if conducting the drill poses an unreasonable safety or environmental risk, or significant economic hardship. If the rail plan holder is excused, ecology will conduct an unannounced drill at a future time.

(4) Wildlife deployment drills: Once every three years rail plan holders shall deploy regional mobile wildlife rehabilitation equipment and personnel necessary to set up the wildlife rehabilitation system found in the plan.

(5) Additional large-scale multiple plan holder equipment deployment drill requirement. At least once every three years all plan holders must participate in a multiple plan holder deployment exercise. The exercise location will be selected by ecology to ensure all plan holders have the opportunity to get credit based on the areas they operate or transit. This drill is a test of the functional ability for multiple contingency plans to be simultaneously activated in response to a spill. This drill may be incorporated into other drill requirements to avoid increasing the number of drills and equipment deployments otherwise required. This deployment may include the following objectives:

(a) Demonstration of dedicated and nondedicated equipment and trained contracted personnel;

(b) Demonstration of contracted vessel of opportunity response systems and crew performing operations appropriate to the vessel capabilities;

(i) On-water recovery task forces made up of complete systems which demonstrate storage, recovery, and enhanced skimming;

(ii) Protection task forces which deploy multiple GRPs;

(iii) Vessel and personnel decontamination and disposal;

(iv) Deployment of contracted aerial assessment assets and aerial observers to direct skimming operations;

(v) Personnel and equipment identified for night operations; and

(vi) Equipment necessary to address situations where oils, depending on their qualities, weathering, environmental factors, and methods of discharge, may submerge and sink.

(d) Verification of the operational readiness during both the first six hours of a spill and over multiple operational periods.

AMENDATORY SECTION(Amending WSR 16-18-052, filed 8/31/16, effective 10/1/16)

WAC 173-186-530Other ways to get drill credit.

(1) Drill credits for actual spills: Rail plan holders may request drill credit for a response to an actual spill, provided that ecology has an opportunity to participate during the spill and evaluate the spill response. Credit ((from spills shall not entirely alleviate the rail plan holder's responsibility to drill. To obtain credit:))for a spill may only be used to replace the requirement to conduct a drill once per triennial cycle. If credit for a spill is requested more than once per triennial cycle, it is up to the discretion of ecology if additional credit will be granted while not replacing the requirement to conduct additional annual drills. The requested additional spill credit may be granted if significant lessons learned from the spill or key response components were successfully demonstrated.

(a) The plan holder shall submit a written request to ecology within sixty days of completion of the cleanup operations.

The request shall include documentation supporting the components of WAC 173-186-520.

(b) Within ninety days, the rail plan holder shall submit a lessons learned summary supporting the request for drill credit.

(2) Rail plan holders may request drill credit for out-of-state tabletop drills if:

(a) Ecology has been invited to attend the drill;

(b) Ecology has an opportunity to participate in the planning process for the drill. There shall be a meeting to discuss the scope and scale of the exercise, the drill objectives and the types of criteria for which Washington credit may be applicable;

(c) Documentation of the drill and self-certification documentation shall be provided to ecology within thirty days of the drill; and

(d) Rail plan holders seeking credit for a scheduled out-of-state drill shall use the drill calendar to schedule the drill at least ninety days in advance, to provide ecology an opportunity to participate.

PART IV: ((INSPECTION OF RECORDS, NONCOMPLIANCE, AND ENFORCEMENT))OIL SPILL CONTINGENCY PLANS FOR TYPE B RAILROADS

Section A—Contingency Plan Format, Content and Implementation

NEW SECTION

WAC 173-186-601Contingency plan format requirements.

(1) Rail plan holders shall format and maintain plans to maximize their usefulness during a spill. Information shall be readily accessible and plans shall contain job aids, diagrams and checklists for maximum utility. Plans shall be formatted to allow replacement of pages with revisions without requiring replacement of the entire plan.

(2) Plans shall be divided into a system of numbered, tabbed chapters, sections and annexes/appendices. Each plan shall include a detailed table of contents based on chapter, section, and annex/appendix numbers and titles, as well as tables and figures.

(3) Where provided by ecology, an easy-to-use boilerplate plan for rail plan holders may be used.

NEW SECTION

WAC 173-186-602Binding agreement.

(1) Each plan shall contain a written agreement binding the contingency plan submitter to its use. The person(s) signing the agreement shall be authorized to make expenditures to implement the requirements in subsection (2) of this section. Form number ECY 070 550 may be used. The binding agreement shall be signed by:

(a) An authorized owner, or operator, or a designee with authority to bind the owners and operators of the facilities or vessels covered by the plan;

(b) An authorized representative(s) of a company contracted to the vessel or facility and approved by ecology to provide containment and clean-up services.

(2) The agreement is submitted with the plan and will include the name, address, phone number, email address and web site of the submitting party. The signator will:

(b) Commit to having an incident commander in the state within six hours after notification of a spill;

(c) Commit to the implementation and use of the plan during a spill and substantial threat of a spill, and to the training of personnel to implement the plan;

(d) Verify authority and capability to make necessary and appropriate expenditures in order to implement plan provisions; and

NEW SECTION

WAC 173-186-603Contingency plan general content.

(1) Contingency plans shall include all of the content and meet all the requirements in this section.

(3) All contingency plans shall include the following:

(a) Each plan shall state the name, location, type and address of the facility and the federal or state requirements intended to be met by the plan.

(d) Each plan shall have a table of contents and a cross-reference table reflecting the locations in the plan of each component required by this chapter.

(g) Each plan shall include contact information for PRC, SMT and WRP resources listed in the plan. Contact information must include the name, address, twenty-four-hour phone number, or other means of contact at any time of the day.

(h) The plan must also include in the notifications section at least one approved SMT that could be called during a spill to assist in the management of the incident. This includes:

(i) An organizational diagram depicting the chain of command for the SMT for a worst case spill.

(ii) For the purpose of ensuring depth of the SMT, a table detailing the names of personnel to fill the following ICS roles or the name of the SMT listed to fill the roles. Personnel may be listed a maximum of two times. Personnel filling key roles do not need to be a resident in Washington state.

ICS Position	Name	Name	Name
Responsible party incident commander
Public information officer
Liaison officer
Safety officer
Operations section chief
Air operations branch		X	X
Planning section chief
Situation unit leader		X	X
Resources unit leader		X	X
Documentation unit leader		X	X
Environmental unit leader		X	X
Logistics section chief
Finance section chief

X = Not necessary

The plan must identify incident commanders, if located out-of-state, that could arrive in state by six hours to form unified command. When filling out the table, the name of a PRC or SMT may be used rather than the name of an individual of the PRC/SMT.

(iii) A detailed description of the planning process or a reference to the incident management handbook with planning process descriptions and meeting agendas. A job description for each spill management position or a reference to the incident management handbook with position descriptions; except if the rail plan holder follows without deviation from the planning process or job descriptions contained in the NWACP. If the planning process or job descriptions are consistent with those contained in the NWACP, then the rail plan holder may reference the NWACP rather than repeat the information.

(iv) Include a description of the type and frequency of training that the SMT receives, which shall include at a minimum, dependent on the position, ICS, NWACP policies, use and location of geographic response plans (GRPs), the contents of the plan and worker health and safety. New employees shall complete the training program prior to being assigned job responsibilities which require participation in emergency response situations.

(i) A list of the names and phone numbers of required notifications to government agencies, response contractors and SMT members. The notification section shall include names and phone numbers, except that the portion of the list containing internal call down information need not be included in the plan, but shall be available for review by ecology upon request and verified during spills and drills.

(ii) Identify the central reporting office or individuals responsible for implementing the notification process.

(iii) Include a form to document those notifications.

(ii) The plan shall contain a checklist that identifies significant steps used to respond to a spill, listed in a logical progression of response activities.

(m) Each plan shall include concise procedures to manage oil spill liability claims of damages to persons or property, public or private, for which a responsible party may be liable.

(n) Each plan shall include a description of the sensitive areas and a description of how environmental protection will be achieved, including containment, enhanced collection and diversion tactics.

(o) Each plan shall identify potential initial command post locations.

(p) Each plan shall contain a description of how the rail plan holder meets each applicable planning standard in Section C of this chapter.

NEW SECTION

WAC 173-186-604Field document.

(1) Each plan shall contain a field document which lists time-critical information for the initial emergency phase of a spill or a substantial threat of a spill. The owner or operator of the railroad shall make the field document available to personnel who participate in oil handling operations and shall keep the field document in key locations for use during an initial response. The locations where field documents are kept shall be listed in the plan.

(2) At a minimum, the field document shall contain:

(a) Procedures to detect, assess and document the presence and size of a spill;

(b) Spill notification procedures including a form to document them when made; and

(c) The checklist that identifies significant steps used to respond to a spill, listed in a logical progression of response activities.

NEW SECTION

WAC 173-186-605Wildlife rescue and rehabilitation.

(1) Plan holders must plan for potential spill impacts to wildlife (birds, marine mammals, turtles and other reptiles, and other water column and near shores species) that utilize habitats at risk from spills.

(2) The plan must include contact information for approved PRC and WRP that maintain the required equipment and personnel for conducting wildlife response operations, to serve within the wildlife branch of the ICS, and coordinate with state, federal, tribal and other response partners to conduct wildlife reconnaissance, deterrence, and recovery.

Section C—Plan Evaluation

NEW SECTION

WAC 173-186-700Oil spill contingency plan best achievable protection five-year review cycle.

Using the procedures and criteria outlined in WAC 173-182-621, ecology will review the planning standards at five-year intervals to ensure the maintenance of best achievable protection to respond to a worst case spill and provide for continuous operation of oil spill response activities to the maximum extent practicable and without jeopardizing crew safety.

NEW SECTION

WAC 173-186-710Process for plan approval.

Rail owners or operators for new railroad operations shall submit plans to ecology no less than sixty-five days prior to their planned date for beginning of operations in Washington.

(1) Upon receipt of a plan, ecology shall evaluate whether the plan is complete, and if not, the rail plan holder shall be notified of any deficiencies within five business days. The public review and comment period does not begin until a complete plan is received.

(2) Once a plan has been determined to be complete, ecology shall notify interested parties, including local and tribal governments and make the plan available for public review and comment. Ecology will accept comments on the plan for a period of thirty days after the plan has been made publicly available. No later than sixty-five days from the date of public notice of availability, ecology will make a written determination either approving, conditionally approving, or disapproving the plan. The written determination will be provided in the form of an order and subject to appeal as specified in chapter 43.21B RCW.

(a) If the plan is approved, the rail plan holder will receive a certificate of plan approval and the plan expiration date. Approved plans shall be valid for five years.

(b) If the plan is conditionally approved, ecology may require a rail plan holder to operate under specific restrictions until unacceptable components of the plan are revised, resubmitted and approved. In the conditional approval ecology will describe:

(i) Each specific restriction and the duration for which it applies;

(ii) Each required item to bring the plan into compliance; and

(iii) The schedule for rail plan holders to submit required updates, including a reference to the regulatory standard in question.

Restrictions may include, but are not limited to, additional information for the plan or additional requirements to ensure availability of response equipment.

Conditional approval expires no later than eighteen months from date of issue at which time the rail plan holder shall need to request an extension, which is subject to public review.

Ecology shall revoke its conditional approval prior to the expiration date when a rail plan holder fails to meet the terms of the conditional approval. The revocation will be in the form of an appealable order.

(3) Ecology may review a plan following an actual spill or drill of a plan and may require revisions as appropriate.

(4) Public notice will be given of any approval, conditional approval, or disapproval of a plan.

NEW SECTION

WAC 173-186-720Process for public notice and opportunity for public review and comment period.

(1) The purpose of this section is to specify the procedures for notifying the public which includes interested local and tribal governments about contingency plan status and decisions in order to provide opportunities for the public to review and comment.

(2) In order to receive notification of the public review and comment period, interested public, local, and tribal governments should sign up on the ecology email list (listserv) for posting notice about plan review and comment. Ecology's web site will also be used to post notice of public review and comment periods.

(3) Public comment periods shall extend at least thirty days. Public notice, review, and comment periods are required in the following circumstances:

(a) Plan submittals for railroads that have never submitted a plan in Washington;

(b) Plan updates required by WAC 173-186-130;

(d) A permanent significant change to an approved plan.

(4) Public notice, review, and comment period are not required in the following circumstances:

(a) Routine updates to names, phone numbers, formatting, or forms that do not change the approved content of the plan;

(b) Plan updates to resubmit the binding agreement based on changes to the binding agreement signer; and

Section D—Drill Evaluation Program

NEW SECTION

WAC 173-186-800Drill participation, scheduling and evaluation.

(1) Rail plan holders will hold one basic tabletop drill once every three years. In Washington, a modified triennial cycle for drills, as found in the National Preparedness for Response Exercise Program (NPREP), is relied on to test each component of the plan.

(2) Tabletop drills are intended to demonstrate a rail plan holder's capability to manage a spill using the ICS. Role playing shall be required in this drill. The drill must involve some members of the SMT and WRP described in the plan.

(3) Ecology's participation in drills: Rail plan holders shall ensure ecology is provided an opportunity to help design and evaluate the drill.

(4) Scheduling drills: The plan holder shall schedule the drill on the NWACP area exercise calendar at least ninety days in advance of the scheduled date.

(5) Evaluating drills: Ecology shall provide a written drill evaluation report to the rail plan holder following the drill. Credit will be granted for drill objectives that ecology determines to be successfully met.

(6) Objectives that are not successfully met shall be tested again in subsequent drills, except that significant failures will be retested within thirty days.

(7) Where plan deficiencies have been identified in the written evaluation, rail plan holders may be required to make specific amendments to the plan or conduct additional trainings to address the deficiencies.

(8) A rail plan holder may request an informal review with ecology of the ecology drill evaluation within thirty days of receipt of the report.

NEW SECTION

WAC 173-186-810Drill evaluation criteria.

The ecology drill evaluation process is based on the 2016 NPREP guidance document. The NPREP guidance document lists fifteen core components to be demonstrated during drills. Ecology adopts the fifteen core components as the criteria used to evaluate the basic tabletop drill.

The core components are as follows:

(1) Notifications: Test the notifications procedures identified in the plan.

(2) Staff mobilization: Demonstrate the ability to assemble the spill response organization identified in the plan.

(3) Ability to operate within the response management system described in the plan: This includes demonstration of the ICS staffing and process identified in the plan.

(4) Source control: Demonstrate the ability of the spill response organization to control and stop the discharge at the source, and to effectively coordinate source control activities within the response.

(5) Assessment: Demonstrate the ability of the spill response organization to provide an initial assessment of the discharge, or potential discharge, and provide continuing assessments of the effectiveness of the planning and tactical operations.

(6) Containment: Demonstrate the ability of the spill response organization to contain the discharge at the source or in various locations for recovery operations.

(7) Mitigation: Demonstrate the ability of the spill response organization to recover, mitigate, and remove the discharged product. This includes mitigation and removal activities such as dispersant use, in situ burn use, and bioremediation use, in addition to mechanical oil recovery.

(8) Protection: Demonstrate the ability of the spill response organization to protect the environmentally, culturally and economically sensitive areas identified in the NWACP and the plan.

(9) Disposal: Demonstrate the ability of the spill response organization to dispose of the recovered material and contaminated debris in compliance with guidance found in the NWACP.

(10) Communications: Demonstrate the ability to establish an effective communications system throughout the scope of the plan for the spill response organization.

(11) Transportation: Demonstrate the ability to provide effective multimodal transportation both for execution of the discharge and support functions.

(12) Personnel support: Demonstrate the ability to provide the necessary logistical support of all personnel associated with the response.

(13) Equipment maintenance and support: Demonstrate the ability to maintain and support all equipment associated with the response.

(14) Procurement: Demonstrate the ability to establish an effective procurement system.

(15) Documentation: Demonstrate the ability of the rail plan holder's spill management organization to document all operational and support aspects of the response and provide detailed records of decisions and actions taken.

PART V: OIL SPILL CONTINGENCY PLANS FOR TYPE C RAILROADS

Section A—General Plan Content

NEW SECTION

WAC 173-186-900Contingency plan format and content.

(1) Rail plan holders shall format and maintain plans to maximize their usefulness during an incident. Contingency plan shall include all of the content and meet all the requirements in this section;

(2) Keep documentation of the contingency plan on file with the department at the plan holder's principal place of business and at dispatcher field offices of the railroad;

(3) Identify and include contact information for the chain of command and other personnel, including employees or spill response contractors, who will be involved in the railroad's response in the event of a spill;

(4) Include information related to the relevant accident insurance carried by the railroad and provide a certificate of insurance to ecology upon request;

(5) Develop a field document for use by personnel involved in oil handling operations that includes time-critical information regarding basic contingency plan procedures to be used in the initial response to a spill or a threatened spill.

REPEALER

The following sections of the Washington Administrative Code are repealed:

WAC 173-186-240	Plan implementation procedures.
WAC 173-186-600	Inspection of records.
WAC 173-186-610	Enforcement—Noncompliance.
WAC 173-186-620	Severability.