DEPARTMENT OF ECOLOGY

[Order 19-09—Filed September 2, 2020, 10:46 a.m.]

Preproposal statement of inquiry was filed as WSR 20-03-022.

Title of Rule and Other Identifying Information: Ecology is proposing to amend chapter 173-185 WAC, Oil movement by rail and pipeline notification. This chapter establishes reporting standards for facilities that receive crude oil by rail and pipelines that transport crude oil through the state. The rule also describes reporting standards for ecology to share information with tribes, emergency responders, local governments, and the public.

For more information on this rule making visit https://ecology.wa.gov/Regulations-Permits/Laws-rules-rulemaking/Rulemaking/WAC-173-185.

Hearing Location(s): On Wednesday, October 7, 2020, at 1:00 p.m., webinar hearing. Presentation, question and answer session followed by the hearing.

We are 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 https://watech.webex.com/watech/onstage/g.php?MTID=e9733cf508d11e3b6406ce4b0505662a6.

For audio call US Toll number 1-415-655-0001 and enter access code 288 324 996. Or to receive a free call back, provide your phone number when you join the event.

On Tuesday, October 13, 2020, at 10:00 a.m., webinar hearing. Presentation, question and answer session followed by the hearing.

We are 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 https://watech.webex.com/watech/onstage/g.php?MTID=eaac583e6d742f4b82d9c4235344e697d.

For audio call US Toll number 1-415-655-0001 and enter access code 280 854 750. Or to receive a free call back, provide your phone number when you join the event.

Or on Tuesday, October 20, 2020, at 6:00 p.m., webinar hearing. Presentation, question and answer session followed by the hearing.

We are 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 https://watech.webex.com/watech/onstage/g.php?MTID=e1df768c4dbfc1d0f11fe351529601b11.

For audio call US Toll number 1-415-655-0001 and enter access code 284 828 617. Or to receive a free call back, provide your phone number when you join the event.

Date of Intended Adoption: January 19, 2021.

Submit Written Comments to: Kim Morley, U.S. mail: Department of Ecology, Spill Prevention, Preparedness, and Response Program, P.O. Box 47600, Olympia, WA 98504-7600, Parcel delivery services, Department of Ecology, Spill Prevention, Preparedness, and Response Program, 300 Desmond Drive S.E., Lacey, WA 98503, submit comments by mail, online, or at the hearing(s), online http://sppr.ecology.commentinput.com/?id=WcU9V, by November 1, 2020.

Assistance for Persons with Disabilities: Contact ecology 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 October 5, 2020.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The rule making will implement sections of ESHB 1578 and ESSB 5579, both passed in 2019 and codified in RCW 90.56.565.

This rule making will:

Reasons Supporting Proposal: In 2016, ecology adopted chapter 173-185 WAC to enhance crude oil spill preparedness and response in Washington state. The rule established reporting standards for facilities that receive crude oil by rail and pipelines that transport crude oil through the state. Additionally, the rule describes reporting standards for ecology to share information with tribes, emergency responders, local governments, and the public. The rule was adopted as a result of 2015 legislative direction to provide a better understanding of the changing risk picture for crude oil transported by rail and pipeline in Washington state. The rule supports our understanding of the risks associated with changes in both the volume and properties of crude oil moving through Washington.

Timely notice of crude oil movement information is necessary for emergency responders and planners to effectively prepare for and respond to oil spills and other incidents associated with transporting crude oil by rail and pipeline. Providing adequate information about the dates, routes, and properties of crude oil can help protect people living and working near railroads and pipelines, the economy, and the environment.

Rule amendments are needed to incorporate statutory changes made in the 2019 legislative session. Through ESHB 1578 and ESSB 5579, the legislature expanded reporting requirements for regulated facilities, pipelines, and ecology, and placed statutory limits on the vapor pressure of crude oil that can be loaded or unloaded into or from a rail tank car by facilities.

Initially our rule making was scoped to address these updates in alignment with legislative direction. However, the pipeline and hazardous materials safety administration (PHMSA) determined that the crude oil vapor pressure limit is preempted by the Hazardous Materials Transportation Act. Ecology is continuing rule making but is no longer pursuing updates to incorporate statutory limits on the vapor pressure of crude oil that can be loaded or unloaded into or from a rail tank car by facilities.

Expanded reporting requirements will help ecology and other emergency responders understand the crude oil movement picture statewide, and to better assess potential impacts of crude oil movement by rail and pipeline. The additional data can help ecology and emergency response agencies determine the need for additional prevention and preparedness measures.


•	Expand advance notice reporting requirements for facilities that receive crude oil by rail to include type and vapor pressure of crude oil.
•	Expand biannual notice requirements for pipelines that transport crude oil through the state to include gravity and type of crude oil.
•	Describe how required information will be provided to the utilities and transportation commission (UTC).
•	Make other changes to clarify language and make any corrections needed.

Statutory Authority for Adoption: Chapter 90.56 RCW; RCW 90.56.005, 90.56.050, 90.56.565.

Statute Being Implemented: RCW 90.56.565.

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: Kim Morley, Lacey, Washington, 360-701-2398; Implementation and Enforcement: Nhi Irwin, Lacey, Washington, 360-791-5514.

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 Kim Morley, Department of Ecology, Spill Prevention, Preparedness, and Response Program, P.O. Box 47600, Olympia, WA 98504-7600, phone 360-701-2398, people with speech disability may call TTY at 877-833-6341. People with impaired hearing may call Washington relay service at 711, email kim.morley@ecy.wa.gov.

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.025(4).

Explanation of exemptions: We analyzed the compliance costs of the proposed rule amendments in the Preliminary Regulatory Analyses for this rule making (Ecology publication no. 20-08-007). All but one of the parties covered by this rule are businesses with more than fifty employees, and the remaining party is government-owned:


•	BP Cherry Point Refinery: BP has over ten thousand employees.
•	Andeavor Anacortes Refinery: Andeavor has over ten thousand employees.
•	Shell Puget Sound Refinery: Shell has over ten thousand employees.
•	Phillips 66 Refinery: Phillips 66 has over ten thousand employees.
•	U.S. Oil and Refining: U.S. Oil and Refining has between one hundred and two hundred forty-nine employees.
•	TransMountain Pipeline (Puget Sound): TransMountain Pipeline is a wholly owned subsidiary of Canada Development Investment Corporation, which is owned by the Canadian government. As a public entity, it is not a business.
•	BP Olympic Pipeline: BP has over ten thousand employees.
•	SeaPort Sound Terminal: This terminal is owned by Targa Resources, which has one thousand to four thousand nine hundred ninety-nine employees.

Therefore, this rule making is exempt from the requirements of the Regulatory Fairness Act (chapter 19.85 RCW) according to RCW 19.85.025(4), which states, "This chapter does not apply to the adoption of a rule if an agency is able to demonstrate that the proposed rule does not affect small businesses."

AMENDATORY SECTION(Amending WSR 16-17-144, filed 8/24/16, effective 10/1/16)

WAC 173-185-020Purpose.

((The purpose of this chapter is to enhance oil transportation safety in Washington and protect public safety and the environment by establishing notification requirements and procedures that inform emergency response agencies and the public of all crude oil shipments to facilities by rail and crude oil transport by transmission pipelines in the state.)) This chapter establishes:

(1) Advance notice requirements for facilities that receive crude oil by railroad car.

(2) Biannual notice requirements for transmission pipelines that transport crude oil.

(3) Disclosure procedures for ecology to:

(a) Provide nonaggregated information collected under this chapter to the state emergency management division, utilities and transportation commission, and any county, city, tribal, port, and local government emergency response agency to help these agencies effectively prepare for and respond to oil spills and other accidents.

(b) Provide aggregated information collected under this chapter to inform the public about the nature of crude oil movement through their communities.

AMENDATORY SECTION(Amending WSR 16-17-144, filed 8/24/16, effective 10/1/16)

WAC 173-185-030Compliance schedule.

(1) Facilities.

(a) Owners and operators of facilities in operation at the time this chapter is adopted must meet the advance notice requirements in WAC 173-185-070 on the effective date of this chapter.

(b) Owners and operators of new facilities must meet the advance notice requirements in WAC 173-185-070 immediately upon beginning operations in the state.

(2) Transmission pipelines.

(a) Owners and operators of transmission pipelines in operation at the time this chapter is adopted must meet the biannual notice requirements in WAC 173-185-080 on the effective date of this chapter ((and submit their first biannual notice by January 31, 2017)).

(b) Owners and operators of new transmission pipelines must meet the biannual notice requirements in WAC 173-185-080 immediately upon beginning operations in the state.

AMENDATORY SECTION(Amending WSR 16-17-144, filed 8/24/16, effective 10/1/16)

WAC 173-185-050Definitions.

(1) "American Petroleum Institute (API) gravity" is a measure of how heavy or light a petroleum liquid is compared to water.

(2)"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.

(((2)))(3)"Crude oil" means any naturally occurring hydrocarbons coming from the earth that are liquid at twenty-five degrees Celsius and one atmosphere of pressure including, but not limited to, crude oil, bitumen and diluted bitumen, synthetic crude oil, and natural gas well condensate.

(((3)))(4)"Ecology" means the state of Washington department of ecology.

(((4)))(5)(a) "Facility" means 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 ecology 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.

(((5) "Navigable waters of the state" means those waters of the state, and their adjoining shorelines, that are subject to the ebb and flow of the tide and/or are presently used, have been used in the past, or may be susceptible for use to transport intrastate, interstate, or foreign commerce.))

(6) "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.

(7)(a) "Owner" or "operator" means (i) in the case of a vessel, any person owning, operating, or chartering by demise, the vessel; (ii) in the case of an onshore or offshore facility, any person owning or operating the facility; and (iii) in the case of an abandoned vessel or onshore or offshore facility, the person who owned or operated the vessel or facility immediately before its abandonment.

(b) "Operator" does not include any person who owns the land underlying a facility if the person is not involved in the operations of the facility.

(8) "Person" means any political subdivision, government agency, municipality, industry, public or private corporation, copartnership, association, firm, individual, ship, or any other entity whatsoever.

(9) "Ship" means any boat, ship, vessel, barge, or other floating craft of any kind.

(10) "Sour crude oil" means crude oil that has a sulfur content greater than 0.5 percent by weight.

(11)"Spill" means an unauthorized discharge of oil which enters waters of the state.

(((11)))(12)"State" means the state of Washington.

(((12)))(13) "Sweet crude oil" means crude oil that has a sulfur content that does not exceed 0.5 percent by weight.

(14)"Transmission pipeline" means all parts of a pipeline whether interstate or intrastate, through which oil moves in transportation, including line pipes, valves, and other appurtenances connected to line pipe, pumping units, and fabricated assemblies associated with pumping units, metering and delivery stations and fabricated assemblies therein, and breakout tanks.

(((13) "Waters of the state" includes lakes, rivers, ponds, streams, inland waters, underground water, salt waters, estuaries, tidal flats, beaches and land adjoining the seacoast of the state, sewers, and all other surface waters and watercourses within the jurisdiction of the state of Washington.))

(15) "Vapor-liquid ratio" means the ratio of the vapor volume to the liquid volume of the sample, in equilibrium, under specified conditions.

(16) "Vapor pressure" means the pressure exerted by the vapor of a liquid when in equilibrium with the liquid. Vapor pressure varies based on specified temperature and vapor-liquid ratio.

PART B

((FACILITIES))NOTIFICATION, DISCLOSURES, AND NONDISCLOSURES

AMENDATORY SECTION(Amending WSR 16-17-144, filed 8/24/16, effective 10/1/16)

WAC 173-185-070Advance notice—Facility requirements.

(1) Owners and operators of a facility that will receive crude oil from a railroad car must provide ecology with advance notice of all scheduled crude oil deliveries to be received by the facility as provided in this section. Notification may be made by the facility owner or operator's designee.

(2) The advance notice must contain the following information:

(a) Name, address, contact person, and telephone number of the facility;

(b) Region of origin of crude oil as stated, or as expected to be stated, on the bill of lading;

(d) Scheduled time, which means date, and volume of the scheduled delivery;

(e) Gravity, as measured by ((the most recently approved)) standards developed by the American Petroleum Institute or, if unavailable at the time of reporting, expected gravity of crude oil scheduled to be delivered;

(f) Type of crude oil scheduled to be delivered based on: (i) Expected gravity as reported under (e) of this subsection; and (ii) designation of the crude oil as sweet or sour;

(g) Vapor pressure or, if unavailable at the time of reporting, expected vapor pressure of crude oil scheduled to be delivered. Vapor pressure reported under this subsection must be the vapor pressure or expected vapor pressure of the crude oil as measured by American Society for Testing and Materials, or ASTM, Standard D6377-16 or another method approved by ecology, at the expected temperature of the crude oil and with a vapor-liquid ratio between 1.5:1 and 4:1.

A copy of ASTM Standard D6377-16 is available for inspection at 300 Desmond Drive S.E., Lacey, Washington 98503.

(3)(a) Advance notice must be provided to ecology each week for all arrivals of railroad cars carrying crude oil scheduled for the succeeding seven-day period.

(b) All newly scheduled arrivals of railroad cars carrying crude oil after the advance notice time frame under (a) of this subsection must be reported to ecology as soon as possible and before the shipment enters the state. If the shipment is already in the state, the scheduled arrival must be reported when the information is known to the facility.

(c) Advance notice information reported for scheduled crude oil deliveries may be updated after receipt of a scheduled crude oil delivery. If a facility chooses to update information, the information must be updated within fifteen days after the end of the quarter containing the scheduled crude oil delivery date.

(4) Notification must be submitted via ((internet)) website established by ecology.

((PART C

PIPELINES))

AMENDATORY SECTION(Amending WSR 16-17-144, filed 8/24/16, effective 10/1/16)

WAC 173-185-080Biannual notice—Pipeline requirements.

(1) Owners and operators of a transmission pipeline that transports crude oil in or through the state must provide ecology biannual notice of all crude oil transported by the transmission pipeline in or through the state. Notification may be made by the transmission pipeline owner or operator's designee.

(2) The notice must contain the following information:

(a) Company name, address, contact person, and telephone number of the pipeline;

(b) Volume of crude oil by:

(i) Each listed state or province of origin of the crude oil;

(ii) Gravity, as measured by standards developed by the American Petroleum Institute, by weighted average;

(iii) Type of crude oil transported based on gravity as reported under (b)(ii) of this subsection, and designation of the crude oil as sweet or sour.

(3)(a) Notification must be submitted to ecology each year by July 31st for the period January 1st through June 30th and by January 31st for the period July 1st through December 31st.

(b) Notification ((must))may be submitted by email to ecology or via website established by ecology. Form number ECY 070-562 must be used.

((PART D

DISCLOSURES AND NONDISCLOSURES))

AMENDATORY SECTION(Amending WSR 16-17-144, filed 8/24/16, effective 10/1/16)

WAC 173-185-090Disclosures—Emergency management division, utilities and transportation commission, and county, city, tribal, port, and local government emergency response agencies.

(1) Ecology will share the advance notice information collected from facilities under ((this chapter))WAC 173-185-070 with the state emergency management division and any county, city, tribal, port, or local government emergency response agency upon request. Requests to access this information must be submitted to ecology by email.

(2) Ecology will share the advance notice information collected from facilities under WAC 173-185-070 with the utilities and transportation commission.

AMENDATORY SECTION(Amending WSR 16-17-144, filed 8/24/16, effective 10/1/16)

WAC 173-185-100Disclosures—The public.

Ecology will disclose information collected under this chapter by publishing it on a quarterly basis on ecology's website.

(1) Ecology will publish the following crude oil movement information:

(a) Mode of transport (i.e., railroad car or pipeline);

(b) Place of origin by region for facilities and by state or province for transmission pipelines;

(d) Estimated number of railroad cars delivering crude oil; ((and))

(e) Type and reported volume of crude oil received by facilities and crude oil transported by transmission pipelines in or through the state; and

(f) Vapor pressure of crude oil received by facilities.

(2) With respect to information on crude oil movement to facilities provided by this section, ecology will aggregate information on a statewide basis by:

(a) Route;

(b) Week; and

AMENDATORY SECTION(Amending WSR 16-17-144, filed 8/24/16, effective 10/1/16)

WAC 173-185-110Nondisclosure.

Pursuant to RCW 42.56.270(23) and 90.56.565(((5)))(6), ecology and any state, local, tribal, or public agency that receives information provided under ((this chapter))WAC 173-185-070 and 173-185-090 may not disclose any such information to the public or to nongovernmental entities that contains proprietary, commercial, or financial information unless that information is aggregated. The requirement for aggregating information does not apply when information is shared by ecology with emergency response agencies as provided in WAC ((178-185-090))173-185-090.