AN ACT
Relating to revisions in existing oil spill prevention and clean-up statutes;
amending RCW 43.21B.110, 43.21B.300, 43.21B.310, 43.21I.010, 43.21I.020,
82.23B.010, 82.23B.020, 82.23B.030, 82.23B.040, 43.21I.030, 88.40.011,
88.40.020, 88.40.040, 88.44.010, 88.44.100, 88.44.110, 88.46.010, 88.46.050,
88.46.060, 88.46.070, 88.46.080, 88.46.090, 88.46.110, 90.48.120, 90.48.140,
90.48.144, 90.48.366, 90.48.368, 90.48.400, 90.56.010, 90.56.100, 90.56.210,
90.56.300, 90.56.310, 90.56.330, 90.56.380, 90.56.390, 90.56.400, 90.56.450,
90.56.510, and 90.56.520; adding a new section to chapter 82.23B RCW; creating
new sections; prescribing penalties; providing an effective date; and declaring
an emergency.
BE IT ENACTED BY THE LEGISLATURE
OF THE STATE OF WASHINGTON:
Sec.
1. RCW
43.21B.110 and 1989 c 175 s 102 are each amended to read as follows:
(1)
The hearings board shall only have jurisdiction to hear and decide appeals from
the following decisions of the department, the director, the administrator
of the office of marine safety, and the air pollution control boards or
authorities as established pursuant to chapter 70.94 RCW, or local health
departments:
(a)
Civil penalties imposed pursuant to RCW 70.94.431, 70.105.080, 70.107.050, 88.46.090,
90.03.600, 90.48.144, 90.56.310, and ((90.48.350)) 90.56.330.
(b)
Orders issued pursuant to RCW 43.27A.190, 70.94.211, 70.94.332, 70.105.095,
86.16.020, 88.46.070, 90.14.130, and 90.48.120.
(c)
The issuance, modification, or termination of any permit, certificate, or
license by the department or any air authority in the exercise of its
jurisdiction, including the issuance or termination of a waste disposal permit,
the denial of an application for a waste disposal permit, or the modification
of the conditions or the terms of a waste disposal permit.
(d)
Decisions of local health departments regarding the grant or denial of solid
waste permits pursuant to chapter 70.95 RCW.
(e)
Any other decision by the department, the administrator of the office of
marine safety, or an air authority which pursuant to law must be decided as
an adjudicative proceeding under chapter 34.05 RCW.
(2)
The following hearings shall not be conducted by the hearings board:
(a)
Hearings required by law to be conducted by the shorelines hearings board
pursuant to chapter 90.58 RCW.
(b)
Hearings conducted by the department pursuant to RCW 70.94.332, 70.94.390,
70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.
(c)
Proceedings by the department relating to general adjudications of water rights
pursuant to chapter 90.03 or 90.44 RCW.
(d)
Hearings conducted by the department to adopt, modify, or repeal rules.
(3)
Review of rules and regulations adopted by the hearings board shall be subject
to review in accordance with the provisions of the Administrative Procedure
Act, chapter 34.05 RCW.
Sec.
2. RCW
43.21B.300 and 1987 c 109 s 5 are each amended to read as follows:
(1)
Any civil penalty provided in RCW 70.94.431, 70.105.080, 70.107.050, 88.46.090,
90.03.600, 90.48.144, 90.56.310, and ((90.48.350)) 90.56.330
shall be imposed by a notice in writing, either by certified mail with return
receipt requested or by personal service, to the person incurring the penalty
from the department, the administrator of the office of marine safety,
or the local air authority, describing the violation with reasonable
particularity. Within fifteen days after the notice is received, the person
incurring the penalty may apply in writing to the department, the
administrator, or the authority for the remission or mitigation of the penalty.
Upon receipt of the application, the department, the administrator, or
authority may remit or mitigate the penalty upon whatever terms the department,
the administrator, or the authority in its discretion deems proper. The
department or the authority may ascertain the facts regarding all such
applications in such reasonable manner and under such rules as it may deem
proper and shall remit or mitigate the penalty only upon a demonstration of
extraordinary circumstances such as the presence of information or factors not
considered in setting the original penalty.
(2)
Any penalty imposed under this section may be appealed to the pollution control
hearings board in accordance with this chapter if the appeal is filed with the
hearings board and served on the department, the administrator, or
authority thirty days after receipt by the person penalized of the notice
imposing the penalty or thirty days after receipt of the notice of disposition
of the application for relief from penalty.
(3) A
penalty shall become due and payable on the later of:
(a)
Thirty days after receipt of the notice imposing the penalty;
(b)
Thirty days after receipt of the notice of disposition on application for
relief from penalty, if such an application is made; or
(c)
Thirty days after receipt of the notice of decision of the hearings board if
the penalty is appealed.
(4) If
the amount of any penalty is not paid to the department or the administrator
within thirty days after it becomes due and payable, the attorney general, upon
request of the department or the administrator, shall bring an action in
the name of the state of Washington in the superior court of Thurston county,
or of any county in which the violator does business, to recover the penalty.
If the amount of the penalty is not paid to the authority within thirty days
after it becomes due and payable, the authority may bring an action to recover
the penalty in the superior court of the county of the authority's main office
or of any county in which the violator does business. In these actions, the
procedures and rules of evidence shall be the same as in an ordinary civil
action.
(5)
All penalties recovered shall be paid into the state treasury and credited to
the general fund except those penalties imposed pursuant to RCW 70.94.431, the
disposition of which shall be governed by that provision, RCW 70.105.080, which
shall be credited to the hazardous waste control and elimination account,
created by RCW 70.105.180, and RCW ((90.48.350)) 90.56.330, which
shall be credited to the coastal protection fund created by RCW 90.48.390.
Sec.
3. RCW
43.21B.310 and 1989 c 2 s 14 are each amended to read as follows:
(1)
Any order issued by the department, the administrator of the office of
marine safety, or authority pursuant to RCW 70.94.211, 70.94.332,
70.105.095, 43.27A.190, 86.16.020, 88.46.070, or 90.48.120(2) or any
provision enacted after July 26, 1987, or any permit, certificate, or license
issued by the department may be appealed to the pollution control hearings
board if the appeal is filed with the board and served on the department or
authority within thirty days after receipt of the order. Except as provided
under chapter 70.105D RCW, this is the exclusive means of appeal of such an
order.
(2)
The department, the administrator, or the authority in its discretion
may stay the effectiveness of an order during the pendency of such an appeal.
(3) At
any time during the pendency of an appeal of such an order to the board, the
appellant may apply pursuant to RCW 43.21B.320 to the hearings board for a stay
of the order or for the removal thereof.
(4)
Any appeal must contain the following in accordance with the rules of the
hearings board:
(a)
The appellant's name and address;
(b)
The date and docket number of the order, permit, or license appealed;
(c) A
description of the substance of the order, permit, or license that is the
subject of the appeal;
(d) A
clear, separate, and concise statement of every error alleged to have been
committed;
(e) A
clear and concise statement of facts upon which the requester relies to sustain
his or her statements of error; and
(f) A
statement setting forth the relief sought.
(5)
Upon failure to comply with any final order of the department or the
administrator, the attorney general, on request of the department or the
administrator, may bring an action in the superior court of the county
where the violation occurred or the potential violation is about to occur to
obtain such relief as necessary, including injunctive relief, to insure
compliance with the order. The air authorities may bring similar actions to
enforce their orders.
(6) An
appealable decision or order shall be identified as such and shall contain a
conspicuous notice to the recipient that it may be appealed only by filing an
appeal with the hearings board and serving it on the department within thirty
days of receipt.
Sec.
4. RCW
43.21I.010 and 1991 c 200 s 402 are each amended to read as follows:
(1)
There is hereby created an agency of state government to be known as the office
of marine safety. The office shall be vested with all powers and duties
transferred to it and such other powers and duties as may be authorized by
law. The main administrative office of the office shall be located in the city
of Olympia. The administrator may establish administrative facilities in other
locations, if deemed necessary for the efficient operation of the office, and
if consistent with the principles set forth in subsection (2) of this section.
(2)
The office of marine safety shall be organized consistent with the goals of
providing state government with a focus in marine transportation and serving
the people of this state. The legislature recognizes that the administrator
needs sufficient organizational flexibility to carry out the office's various
duties. To the extent practical, the administrator shall consider the
following organizational principles:
(a)
Clear lines of authority which avoid functional duplication within and between
subelements of the office;
(b) A
clear and simplified organizational design promoting accessibility,
responsiveness, and accountability to the legislature, the consumer, and the
general public; and
(c)
Maximum span of control without jeopardizing adequate supervision.
(3)
The office shall provide leadership and coordination in identifying and
resolving threats to the safety of marine transportation and the impact of
marine transportation on the environment:
(a)
Working with other state agencies and local governments to strengthen the state
and local governmental partnership in providing public protection;
(b)
Providing expert advice to the executive and legislative branches of state
government;
(c)
Providing active and fair enforcement of rules;
(d)
Working with other federal, state, and local agencies and facilitating their
involvement in planning and implementing marine safety measures;
(e)
Providing information to the public; and
(f)
Carrying out such other related actions as may be appropriate to this purpose.
(4) In
accordance with the administrative procedure act, chapter 34.05 RCW, the office
shall ensure an opportunity for consultation, review, and comment before the
adoption of standards, guidelines, and rules.
(5)
Consistent with the principles set forth in subsection (2) of this section, the
administrator may create such administrative divisions, offices, bureaus, and
programs within the office as the administrator deems necessary. The
administrator shall have complete charge of and supervisory powers over the
office, except where the administrator's authority is specifically limited by
law.
(6)
The administrator shall appoint such personnel as are necessary to carry out
the duties of the office ((in accordance with chapter 41.06 RCW)). In
addition to exemptions set forth in RCW 41.06.070(28), the administrator, the
administrator's confidential secretary, and up to four professional staff
members shall be exempt from the provisions of chapter 41.06 RCW. All other
employees of the office shall be subject to the provisions of chapter 41.06
RCW.
Sec.
5. RCW
43.21I.020 and 1991 c 200 s 403 are each amended to read as follows:
The
executive head and appointing authority of the office shall be the
administrator of marine safety. The administrator shall be appointed by, and
serve at the pleasure of, the governor ((in accordance with RCW 43.17.020)).
The administrator shall be paid a salary to be fixed by the governor in
accordance with RCW 43.03.040.
Sec.
6. RCW
82.23B.010 and 1991 c 200 s 801 are each amended to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply
throughout this chapter.
(1)
"Barrel" means a unit of measurement of volume equal to forty-two
United States gallons of crude oil or petroleum product.
(2)
"Crude oil" means any naturally occurring liquid hydrocarbons at
atmospheric temperature and pressure coming from the earth, including
condensate and natural gasoline.
(3)
"Department" means the department of revenue.
(4)
"Marine terminal" means a facility of any kind, other than a
waterborne vessel, that is used for transferring crude oil or petroleum
products to or from a waterborne vessel or barge.
(5)
"Navigable waters" means those waters of the state and their
adjoining shorelines that are subject to the ebb and flow of the tide,
including the Columbia and Snake rivers.
(6)
"Person" has the meaning provided in RCW 82.04.030.
(7)
"Petroleum product" means any liquid hydrocarbons at atmospheric
temperature and pressure that are the product of the fractionation,
distillation, or other refining or processing of crude oil, and that are used
as, useable as, or may be refined as a fuel or fuel blendstock, including but
not limited to, gasoline, diesel fuel, aviation fuel, bunker fuel, and fuels
containing a blend of alcohol and petroleum.
(8)
"Taxpayer" means the person owning crude oil or petroleum products
immediately ((before the same are off-loaded at)) after receipt of
the same into the storage tanks of a marine terminal in this state from
a waterborne vessel or barge and who is liable for the taxes imposed by
this chapter.
(9)
"Waterborne vessel or barge" means any ship, barge, or other
watercraft capable of travelling on the navigable waters of this state and
capable of transporting any crude oil or petroleum product in quantities of ten
thousand gallons or more for purposes other than providing fuel for its motor
or engine.
Sec.
7. RCW
82.23B.020 and 1991 c 200 s 802 are each amended to read as follows:
(1) An
oil spill response tax is imposed on the privilege of ((off-loading)) receiving
crude oil or petroleum products at a marine terminal within this state from a
waterborne vessel or barge operating on the navigable waters of this state.
The tax imposed in this section is levied upon the owner of the crude oil or
petroleum products immediately ((before off-loading begins)) after
receipt of the same into the storage tanks of a marine terminal from a
waterborne vessel or barge at the rate of two cents per barrel of crude oil
or petroleum product ((off-loaded)) received.
(2) In
addition to the tax imposed in subsection (1) of this section, an oil spill
administration tax is imposed on the privilege of ((off-loading)) receiving
crude oil or petroleum products at a marine terminal within this state from a
waterborne vessel or barge operating on the navigable waters of this state.
The tax imposed in this section is levied upon the owner of the crude oil or
petroleum products immediately ((before off-loading begins)) after
receipt of the same into the storage tanks of a marine terminal from a
waterborne vessel or barge at the rate of three cents per barrel of crude
oil or petroleum product ((off-loaded)).
(3)
The taxes imposed by this chapter shall be collected by the marine terminal
operator from the ((owner of the crude oil or petroleum products off-loaded
at the marine terminal)) taxpayer. If any person charged with
collecting the taxes fails to bill the taxpayer for the taxes, or in the
alternative has not notified the taxpayer in writing of the imposition of the
taxes, or having collected the taxes, fails to pay them to the department in
the manner prescribed by this chapter, whether such failure is the result of
the person's own acts or the result of acts or conditions beyond the person's
control, he or she shall, nevertheless, be personally liable to the state for
the amount of the taxes. Payment of the taxes by the owner to a marine
terminal operator shall relieve the owner from further liability for the taxes.
(4)
Taxes collected under this chapter shall be held in trust until paid to the
department. Any person collecting the taxes who appropriates or converts the
taxes collected shall be guilty of a gross misdemeanor if the money required to
be collected is not available for payment on the date payment is due. The
taxes required by this chapter to be collected shall be stated separately from
other charges made by the marine terminal operator in any invoice or other
statement of account provided to the taxpayer.
(5) If
a taxpayer fails to pay the taxes imposed by this chapter to the person charged
with collection of the taxes and the person charged with collection fails to
pay the taxes to the department, the department may, in its discretion, proceed
directly against the taxpayer for collection of the taxes.
(6)
The taxes shall be due from the marine terminal operator, along with reports
and returns on forms prescribed by the department, within twenty-five days
after the end of the month in which the taxable activity occurs.
(7)
The amount of taxes, until paid by the taxpayer to the marine terminal operator
or to the department, shall constitute a debt from the taxpayer to the marine
terminal operator. Any person required to collect the taxes under this chapter
who, with intent to violate the provisions of this chapter, fails or refuses to
do so as required and any taxpayer who refuses to pay any taxes due under this
chapter, shall be guilty of a misdemeanor as provided in chapter 9A.20 RCW.
(8)
Upon prior approval of the department, the ((owner of crude oil or petroleum
products off-loaded in this state)) taxpayer may pay the taxes
imposed by this chapter directly to the department. The department shall give
its approval for direct payment under this section whenever it appears, in the
department's judgment, that direct payment will enhance the administration of
the taxes imposed under this chapter. The department shall provide by rule for
the issuance of a direct payment certificate to any taxpayer qualifying for
direct payment of the taxes. Good faith acceptance of a direct payment
certificate by a terminal operator shall relieve the marine terminal operator
from any liability for the collection or payment of the taxes imposed under
this chapter.
(9)
All receipts from the tax imposed in subsection (1) of this section shall be
deposited into the state oil spill response account. All receipts from the tax
imposed in subsection (2) of this section shall be deposited into the state oil
spill administration account.
(10)
Within forty-five days after the end of each calendar quarter, the office of
financial management shall determine the balance of the oil spill response
account as of the last day of that calendar quarter. Balance determinations by
the office of financial management under this section are final and shall not
be used to challenge the validity of any tax imposed under this chapter. The
office of financial management shall promptly notify the departments of revenue
and ecology of the account balance once a determination is made. For each
subsequent calendar quarter, the tax imposed by subsection (1) of this section
shall be imposed during the entire calendar quarter unless:
(a)
Tax was imposed under subsection (1) of this section during the immediately
preceding calendar quarter, and the most recent quarterly balance is more than
twenty-five million dollars; or
(b)
Tax was not imposed under subsection (1) of this section during the immediately
preceding calendar quarter, and the most recent quarterly balance is more than
fifteen million dollars.
(11)
The office of marine safety, the department of revenue, and the department of
trade and economic development shall study tax credits for taxpayers employing
vessels with the best achievable technology and the best available protection
to reduce the risk of oil spills to the navigable waters of the state and
submit the study to the appropriate standing committees of the legislature by
December 1, 1992.
NEW
SECTION. Sec. 8. A new
section is added to chapter 82.23B RCW to read as follows:
(1)
Any person having paid the tax imposed by this chapter who uses petroleum
products as a consumer for a purpose other than as a fuel may claim refund or
credit against the tax imposed under this chapter. For this purpose, the term
consumer shall be defined as provided in RCW 82.04.190.
(2)
Any person having paid the tax imposed by this chapter who uses petroleum
products as a component or ingredient in the manufacture of an item which is
not a fuel may claim a refund or credit against the tax imposed by this
chapter.
(3)
The amount of refund or credit claimed under this section may not exceed the
amount of tax paid by the person making such claim on the petroleum products so
consumed or used. The refund or credit allowed by this section shall be
claimed on such forms and subject to such requirements as the department may
prescribe by rule.
Sec.
9. RCW
82.23B.030 and 1991 c 200 s 803 are each amended to read as follows:
The
taxes imposed under this chapter shall only apply to the first ((off-loading))
receipt of crude oil or petroleum products at a marine terminal in this
state and not to the later transporting and subsequent ((off-loading)) receipt
of the same oil or petroleum product, whether in the form originally ((off-loaded))
received at a marine terminal in this state or after refining or other
processing.
Sec.
10. RCW
82.23B.040 and 1991 c 200 s 804 are each amended to read as follows:
Credit
shall be allowed against the taxes imposed under this chapter for any crude oil
or petroleum products ((off-loaded)) received at a marine
terminal and subsequently exported from or sold for export from the state.
Sec.
11. RCW
43.21I.030 and 1991 c 200 s 405 are each amended to read as follows:
In
addition to any other powers granted the administrator, the administrator may:
(1)
Adopt, in accordance with chapter 34.05 RCW, rules necessary to carry out the
provisions of this chapter and chapter 88.46 RCW;
(2)
Appoint such advisory committees as may be necessary to carry out the
provisions of this chapter and chapter 88.46 RCW. Members of such advisory
committees are authorized to receive travel expenses in accordance with RCW
43.03.050 and 43.03.060. The administrator shall review each advisory
committee within the jurisdiction of the office and each statutory advisory
committee on a biennial basis to determine if such advisory committee is
needed. The criteria specified in RCW 43.131.070 shall be used to determine
whether or not each advisory committee shall be continued;
(3)
Undertake studies, research, and analysis necessary to carry out the provisions
of this chapter and chapter 88.46 RCW;
(4)
Delegate powers, duties, and functions of the ((department)) office
to employees of the ((department)) office as the ((secretary))
administrator deems necessary to carry out the provisions of this chapter
and chapter 88.46 RCW;
(5)
Enter into contracts on behalf of the ((department)) office to
carry out the purposes of this chapter and chapter 88.46 RCW;
(6)
Act for the state in the initiation of, or the participation in, any
intergovernmental program for the purposes of this chapter and chapter 88.46
RCW; or
(7)
Accept gifts, grants, or other funds.
Sec.
12. RCW
88.40.011 and 1991 c 200 s 702 are each amended to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply
throughout this chapter.
(1)
"Administrator" means the administrator of the office of marine
safety created in RCW 43.21I.010.
(2)
"Cargo vessel" means a self-propelled ship in commerce, other than a
tank vessel or a passenger vessel, of ((greater than)) three hundred or
more gross tons, including but not limited to, commercial fish processing
vessels and freighters.
(3)
"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.
(4)
"Covered vessel" means a tank vessel, cargo vessel, or passenger
vessel.
(5)
"Department" means the department of ecology.
(6)
"Director" means the director of the department of ecology.
(7)(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) A
facility does not include any: (i) Railroad car, motor vehicle, or other
rolling stock while transporting oil over the highways or rail lines of this
state; (ii) retail motor vehicle motor fuel outlet; (iii) facility that is
operated as part of an exempt agricultural activity as provided in RCW
82.04.330; (iv) underground storage tank regulated by the department or a local
government under chapter 90.76 RCW; or (v) ((a)) 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.
(8)
"Hazardous substances" means any substance listed in Table 302.4 of
40 C.F.R. Part 302 adopted August 14, 1989, under section 101(14) of the
federal comprehensive environmental response, compensation, and liability act
of 1980, as amended by P.L. 99‑499. The following are not hazardous
substances for purposes of this chapter:
(a)
Wastes listed as F001 through F028 in Table 302.4; and
(b)
Wastes listed as K001 through K136 in Table 302.4.
(9)
"Inland barge" means any barge operating on the waters of the state
and certified by the coast guard as an inland barge.
(10)
"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.
(11)
"Office" means the office of marine safety established by RCW
43.21I.010.
(12)
"Oil" or "oils" means any naturally occurring liquid
hydrocarbons at atmospheric temperature and pressure coming from the earth,
including condensate and natural gasoline, and any fractionation thereof,
including, but not limited to, crude oil, petroleum, gasoline, fuel oil, diesel
oil, 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 101(14) of the federal
comprehensive environmental response, compensation, and liability act of 1980,
as amended by P.L. 99‑499.
(13)
"Offshore facility" means any facility((, as defined in subsection
(7) of this section,)) located in, on, or under any of the navigable waters
of the state, but does not include a facility any part of which is located in,
on, or under any land of the state, other than submerged land.
(14)
"Onshore facility" means any facility((, as defined in subsection
(7) of this section,)) any part of which is located in, on, or under any
land of the state, other than submerged land, that because of its location,
could reasonably be expected to cause substantial harm to the environment by
discharging oil into or on the navigable waters of the state or the adjoining
shorelines.
(15)(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.
(16)
"Passenger vessel" means a ship of ((greater than)) three
hundred or more gross tons ((or five hundred or more international gross
tons)) with a fuel capacity of at least six thousand gallons
carrying passengers for compensation.
(17)
"Ship" means any boat, ship, vessel, barge, or other floating craft
of any kind.
(18)
"Spill" means an unauthorized discharge of oil into the waters of the
state.
(19)
"Tank vessel" means a ship that is constructed or adapted to carry,
or that carries, oil in bulk as cargo or cargo residue, and that:
(a)
Operates on the waters of the state; or
(b)
Transfers oil in a port or place subject to the jurisdiction of this state.
(20)
"Waters of the state" includes lakes, rivers, ponds, streams, inland
waters, underground water, salt waters, estuaries, tidal flats, beaches and
lands adjoining the seacoast of the state, sewers, and all other surface waters
and watercourses within the jurisdiction of the state of Washington.
Sec.
13. RCW
88.40.020 and 1991 c 200 s 703 are each amended to read as follows:
(1)
Any inland barge that transports hazardous substances in bulk as cargo, using
any port or place in the state of Washington or the navigable waters of the
state shall establish evidence of financial responsibility in the amount of the
greater of one million dollars, or one hundred fifty dollars per gross ton of
such vessel.
(2)(a)
Except as provided in (c) of this subsection, a tank vessel that carries oil as
cargo in bulk shall demonstrate financial responsibility to pay at least five
hundred million dollars.
(b)
The administrator by rule may establish a lesser standard of financial
responsibility for barges of three hundred gross tons or less. The standard
shall set the level of financial responsibility based on the quantity of cargo
the barge is capable of carrying. The administrator shall not set the standard
for barges of three ((thousand)) hundred gross tons or less below
that required under federal law.
(c)
The owner or operator of a tank vessel who is a member of an international
protection and indemnity mutual organization and is covered for oil pollution risks
up to the amounts required under this section is not required to demonstrate
financial responsibility under this chapter. The administrator may require
the owner or operator of a tank vessel to prove membership in such an
organization.
(3) A
cargo vessel or passenger vessel that carries oil as fuel shall demonstrate
financial responsibility to pay the greater of at least six hundred dollars per
gross ton or five hundred thousand dollars.
(4)
The documentation of financial responsibility shall demonstrate the ability of
the document holder to meet state and federal financial liability requirements
for the actual costs for removal of oil spills, for natural resource damages,
and necessary expenses.
(5)
The office may by rule set a lesser amount of financial responsibility for a
tank vessel that meets standards for construction, propulsion, equipment, and
personnel established by the office. The office shall require as a minimum
level of financial responsibility under this subsection the same level of
financial responsibility required under federal law.
(6)
This section shall not apply to a covered vessel owned or operated by the
federal government or by a state or local government.
Sec.
14. RCW
88.40.040 and 1991 c 200 s 706 are each amended to read as follows:
(1)
The office shall deny entry to the waters of the state to any vessel that does
not meet the financial responsibility requirements of this chapter. Any vessel
owner or operator that does not meet the financial responsibility requirements
of this chapter and any rules prescribed thereunder or the federal oil
pollution act of 1990 shall be reported by the office to the United States
coast guard.
(2)
The office shall enforce section 1016 of the federal oil pollution act of 1990
as authorized by section 1019 of the federal act.
(((3)
Any onshore or offshore facility owner or operator who does not meet the
financial responsibility requirements of RCW 88.40.025 and any rules adopted by
the department or office shall be reported to the secretary of state. The
secretary of state shall suspend the facility's privilege of operating in this
state until financial responsibility is demonstrated.))
Sec.
15. RCW
88.44.010 and 1991 c 200 s 901 are each amended to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply
throughout this chapter.
(1)
"Administrator" means the administrator of the office of marine
safety created by RCW 43.21I.010.
(2)
"Business class" means a recognized trade segment of the maritime
industry.
(3)
"Commission" means the Washington state maritime commission.
(4)
"Fishing vessel" means a vessel (a) on which persons commercially
engage in: (i) Catching, taking, or harvesting fish; (ii) preparing fish or
fish products; or (b) that supplies, stores, refrigerates, or transports fish,
fish products, or materials directly related to fishing or the preparation of
fish.
(5)
"Foreign vessel" means a vessel of foreign registry or operated under
the authority of a country, except the United States.
(6)
"Oil" or "oils" means oil, including gasoline, crude oil,
fuel oil, diesel oil, lubricating oil, sludge, oil refuse, liquid natural gas,
propane, butane, oils distilled from coal, and other liquid hydrocarbons
regardless of specific gravity, or any other petroleum related products.
(7)
"Oceanographic research vessel" means a vessel that is employed only
in instruction in oceanography or limnology, or both, or only in oceanographic
or limnological research, including those studies about the sea such as
seismic, gravity meter, and magnetic exploration and other marine geophysical
or geological surveys, atmospheric research, and biological research.
(8)
"Protection and indemnity club" means a mutual insurance organization
formed by a group of shipowners or operators in order to secure cover for
various risks of vessel operation, including oil spill costs, not covered by
normal hull insurance.
(9)
"Public vessel" means a vessel that is owned, or chartered and
operated by the United States government, by a state of the United States, or a
government of a foreign country and is not engaged in commercial service.
(10)
"State" means a state of the United States, Guam, Puerto Rico, the
Virgin Islands, American Samoa, the District of Columbia, the Northern Mariana
Islands, and any other territory or possession of the United States.
(11)
"Steamship agent or agency" means an agent or agency appointed by a
vessel owner or operator to enter or clear vessels at ports within the state of
Washington and to conduct onshore activities, or contract on behalf of the
owner or operator for whatever is required for the efficient operation of the
vessel.
(12)
"Steamship liner company" means a steamship company maintaining a
regular schedule of calls at designated ports of the state of Washington.
(13)
"Towboat" means a commercial vessel engaged in, or intending to
engage in, the service of pulling, pushing, or hauling along side, or any
combination of pulling, pushing, or hauling along side.
(14)
"United States flag vessel" means a vessel documented under the laws
of the United States or registered under the laws of any state of the United
States.
(15)
"Vessel" means every description of watercraft, other than a seaplane
on water, used or capable of being used as a means of transportation on water,
carrying oil as fuel or cargo, ((and over)) of three hundred or
more gross registered tons, except oceanographic research vessels, public
vessels, passenger vessels with a maximum fuel capacity of less than six
thousand gallons, vessels being employed exclusively for pleasure, or
vessels which, prior to entering Washington waters, have a contingency plan
approved pursuant to RCW 88.46.060, or have ((formerly)) arranged for
immediate oil spill response with an officially recognized cleanup
cooperative or with a private cleanup contractor ((for immediate oil spill
response)).
(16)
"Vessel owner or operator" means the legal owner of a vessel and/or
the charterer or other person in charge of the day-to-day operation.
(17)
"Waters of this state" or "waters of the state of
Washington" has the meaning in RCW 90.56.010.
Sec.
16. RCW
88.44.100 and 1990 c 117 s 11 are each amended to read as follows:
There
is levied on and after October 1, 1990, an assessment upon all vessels, or the
owners or operators thereof, which transit upon waters of this state, except as
exempted herein and not including vessels which transit upon the portion of the
Columbia river that runs between the states of Washington and Oregon, an
assessment to be set by the commission on each vessel transit, plus annual
increases as are imposed pursuant to the provisions of RCW 88.44.110. ((Vessels
which show proof to the commission or the department of ecology that they have
previously and individually arranged with an officially recognized cleanup
cooperative or with a private cleanup contractor to provide immediate response
capabilities in the event of an oil spill or threatened release, are exempt
from assessment under this chapter.)) Of those vessels assessed, the
commission may set the rate. When the fund reaches one million five hundred
thousand dollars, the commission shall discontinue the assessment until the
fund declines to one million dollars, at which time the assessment must be
reinstated. The assessment, at a minimum, must be able to generate the maximum
fund level within four years. All moneys collected hereunder shall be expended
to effectuate the purpose and objects of this chapter.
If
the commission establishes an oil spill first response system for the Columbia
river, there may be levied on and after ((January)) July 1,
1992, an assessment upon all vessels, or the owners or operators thereof, which
transit upon the portion of the Columbia river that runs between the states of
Washington and Oregon.
Sec.
17. RCW
88.44.110 and 1991 c 200 s 906 are each amended to read as follows:
If it
appears from investigation by the commission that the revenue from the
assessment levied on vessels under this chapter is inadequate to accomplish the
purposes of this chapter, the commission by rule shall increase the assessment
to a sum determined by the commission to be necessary for those purposes. The
rule adopting the increase shall be filed with the administrator((. An
increase shall not take effect earlier than ninety days after the rule is
adopted and filed with the administrator, unless)) at least thirty days
prior to the date set by the commission for final adoption of the rule. If
the administrator determines that the increase is not justified, not later
than the date set by the commission for adoption of the final rule, the
administrator shall notify the commission that the rule has been disapproved.
Sec.
18. RCW
88.46.010 and 1991 c 200 s 414 are each amended to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply
throughout this chapter.
(1)
"Administrator" means the administrator of the office of marine
safety created in RCW 43.21I.010.
(2)
"Best achievable protection" means the highest level of protection
that can be achieved through the use of the best achievable technology and
those staffing levels, training procedures, and operational methods that
provide the greatest degree of protection achievable. The administrator's
determination of best achievable protection shall be guided by the critical
need to protect the state's natural resources and waters, while considering (a)
the additional protection provided by the measures; (b) the technological
achievability of the measures; and (c) the cost of the measures.
(3)
"Best achievable technology" means the technology that provides the
greatest degree of protection taking into consideration (a) processes that are
being developed, or could feasibly be developed, given overall reasonable
expenditures on research and development, and (b) processes that are currently
in use. In determining what is best achievable technology, the administrator
shall consider the effectiveness, engineering feasibility, and commercial
availability of the technology.
(4)
"Cargo vessel" means a self-propelled ship in commerce, other than a
tank vessel or a passenger vessel, of ((greater than)) three hundred or
more gross tons, including but not limited to, commercial fish processing
vessels and freighters.
(5)
"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.
(6)
"Covered vessel" means a tank vessel, cargo vessel, or passenger
vessel.
(7)
"Department" means the department of ecology.
(8)
"Director" means the director of the department of ecology.
(9)
"Discharge" means any spilling, leaking, pumping, pouring, emitting,
emptying, or dumping.
(10)(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) A
facility does not include any: (i) Railroad car, motor vehicle, or other
rolling stock while transporting oil over the highways or rail lines of this
state; (ii) retail motor vehicle motor fuel outlet; (iii) facility that is
operated as part of an exempt agricultural activity as provided in RCW
82.04.330; (iv) underground storage tank regulated by the department or a local
government under chapter 90.76 RCW; or (v) ((a)) 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.
(11)
"Marine facility" means any facility used for tank vessel wharfage or
anchorage, including any equipment used for the purpose of handling or
transferring oil in bulk to or from a tank vessel.
(12)
"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.
(13)
"Office" means the office of marine safety established by RCW
43.21I.010.
(14)
"Oil" or "oils" means any naturally occurring liquid
hydrocarbons at atmospheric temperature and pressure coming from the earth, including
condensate and natural gasoline, and any fractionation thereof, including, but
not limited to, crude oil, petroleum, gasoline, fuel oil, diesel oil, 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 101(14) of the federal comprehensive
environmental response, compensation, and liability act of 1980, as amended by
P.L. 99‑499.
(15)
"Offshore facility" means any facility((, as defined in subsection
(10) of this section,)) located in, on, or under any of the navigable
waters of the state, but does not include a facility any part of which is
located in, on, or under any land of the state, other than submerged land.
"Offshore facility" does not include a marine facility ((as
defined in subsection (11) of this section)).
(16)
"Onshore facility" means any facility((, as defined in subsection
(10) of this section,)) any part of which is located in, on, or under any
land of the state, other than submerged land, that because of its location,
could reasonably be expected to cause substantial harm to the environment by
discharging oil into or on the navigable waters of the state or the adjoining
shorelines.
(17)(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.
(18)
"Passenger vessel" means a ship of ((greater than)) three
hundred or more gross tons ((or five hundred or more international gross
tons)) with a fuel capacity of at least six thousand gallons
carrying passengers for compensation.
(19)
"Person" means any political subdivision, government agency,
municipality, industry, public or private corporation, copartnership,
association, firm, individual, or any other entity whatsoever.
(20)
"Ship" means any boat, ship, vessel, barge, or other floating craft
of any kind.
(21)
"Spill" means an unauthorized discharge of oil into the waters of the
state.
(22)
"Tank vessel" means a ship that is constructed or adapted to carry,
or that carries, oil in bulk as cargo or cargo residue, and that:
(a)
Operates on the waters of the state; or
(b)
Transfers oil in a port or place subject to the jurisdiction of this state.
(23)
"Waters of the state" includes lakes, rivers, ponds, streams, inland
waters, underground water, salt waters, estuaries, tidal flats, beaches and
lands adjoining the seacoast of the state, sewers, and all other surface waters
and watercourses within the jurisdiction of the state of Washington.
(24)
"Worst case spill" means: (a) In the case of a vessel, a spill of
the entire cargo and fuel of the vessel complicated by adverse weather
conditions; and (b) in the case of an onshore or offshore facility, the largest
foreseeable spill in adverse weather conditions.
Sec.
19. RCW
88.46.050 and 1991 c 200 s 418 are each amended to read as follows:
(1) In
order to ensure the safety of marine transportation within the navigable waters
of the state and to protect the state's natural resources, the administrator
shall adopt rules by July 1, 1992, for determining whether cargo vessels and
passenger vessels entering the navigable waters of the state pose a substantial
risk of harm to the public health and safety and the environment.
(2)
The rules adopted by the administrator pursuant to this section may include,
but are not limited to the following:
(a) Examining
available information ((to examine)) sources for evidence
that a cargo or passenger vessel may pose a substantial risk to safe marine
transportation or the state's natural resources((, including,)).
Information sources may include: Vessel casualty lists, United States coast
guard casualty reports, maritime insurance ratings, the index of contingency
plans compiled by the department of ecology, other data gathered by the office
or the maritime commission, or any other resources;
(b) ((A
request to)) Requesting the United States coast guard to deny a
cargo vessel or passenger vessel entry into the navigable waters of the state,
if the vessel poses a substantial environmental risk;
(c) ((A
notice to)) Notifying the state's spill response system that a cargo
or passenger vessel entering the state's navigable waters poses a substantial
environmental risk;
(d) ((A))
Inspecting a cargo or passenger vessel ((inspection for vessels))
that may pose a substantial environmental risk, to determine whether ((a
cargo vessel or passenger)) the vessel complies with applicable
state or federal laws. Any vessel inspection conducted pursuant to this
section shall be performed during the vessel's scheduled stay in port; and
(e)
Enforcement actions.
Sec.
20. RCW
88.46.060 and 1991 c 200 s 419 are each amended to read as follows:
(1)
Each covered vessel shall have a contingency plan for the containment and
cleanup of oil spills from the covered vessel into the waters of the state and
for the protection of fisheries and wildlife, natural resources, and public and
private property from such spills. The office shall by rule adopt and
periodically revise standards for the preparation of contingency plans. The
office shall require contingency plans, at a minimum, to meet the following
standards:
(a)
Include full details of the method of response to spills of various sizes from
any vessel which is covered by the plan;
(b) Be
designed to be capable in terms of personnel, materials, and equipment, of
promptly and properly, to the maximum extent practicable, as defined by the
office(([,])), removing oil and minimizing any damage to the
environment resulting from a worst case spill;
(c)
Provide a clear, precise, and detailed description of how the plan relates to
and is integrated into relevant contingency plans which have been prepared by
cooperatives, ports, regional entities, the state, and the federal government;
(d)
Provide procedures for early detection of spills and timely notification of
such spills to appropriate federal, state, and local authorities under
applicable state and federal law;
(e)
State the number, training preparedness, and fitness of all dedicated,
prepositioned personnel assigned to direct and implement the plan;
(f)
Incorporate periodic training and drill programs to evaluate whether personnel
and equipment provided under the plan are in a state of operational readiness
at all times;
(g)
Describe important features of the surrounding environment, including fish and
wildlife habitat, environmentally and archaeologically sensitive areas,
and public facilities. The departments of ecology, fisheries, wildlife, and
natural resources, and the office of archaeology and historic preservation,
upon request, shall provide information that they have available to assist in
preparing this description. If the office has adopted rules for contingency
plans prior to July 1, 1992, the description of archaeologically sensitive
areas shall only be required when the office revises the rules for contingency
plans after July 1, 1992. The description of archaeologically sensitive areas
shall not be required to be included in a contingency plan until it is reviewed
and updated pursuant to subsection (9) of this section;
(h)
State the means of protecting and mitigating effects on the environment,
including fish, marine mammals, and other wildlife, and ensure that
implementation of the plan does not pose unacceptable risks to the public or
the environment;
(i)
Establish guidelines for the use of equipment by the crew of a vessel to
minimize vessel damage, stop or reduce any spilling from the vessel, and, only
when appropriate and only when vessel safety is assured, contain and clean up
the spilled oil;
(j)
Provide arrangements for the prepositioning of spill containment and cleanup
equipment and trained personnel at strategic locations from which they can be
deployed to the spill site to promptly and properly remove the spilled oil;
(k)
Provide arrangements for enlisting the use of qualified and trained cleanup
personnel to implement the plan;
(l)
Provide for disposal of recovered spilled oil in accordance with local, state,
and federal laws;
(m)
Until a spill prevention plan has been submitted pursuant to RCW 88.46.040,
state the measures that have been taken to reduce the likelihood that a spill
will occur, including but not limited to, design and operation of a vessel,
training of personnel, number of personnel, and backup systems designed to
prevent a spill;
(n)
State the amount and type of equipment available to respond to a spill, where
the equipment is located, and the extent to which other contingency plans rely
on the same equipment; and
(o) If
the department of ecology has adopted rules permitting the use of dispersants,
the circumstances, if any, and the manner for the application of the
dispersants in conformance with the department's rules.
(2)(a)
The owner or operator of a tank vessel of three thousand gross tons or more
shall submit a contingency plan to the office within six months after the
office adopts rules establishing standards for contingency plans under
subsection (1) of this section.
(b)
Contingency plans for all other covered vessels shall be submitted to the
office within eighteen months after the office has adopted rules under
subsection (1) of this section. The office may adopt a schedule for submission
of plans within the eighteen-month period.
(3)(a)
The owner or operator of a tank vessel or of the facilities at which the vessel
will be unloading its cargo, or the Washington state maritime commission
under RCW 88.44.020, shall submit the contingency plan for the tank
vessel. Subject to conditions imposed by the office, the owner or operator of
a facility may submit a single contingency plan for tank vessels of a
particular class that will be unloading cargo at the facility.
(b)
The contingency plan for a cargo vessel or passenger vessel may be submitted by
the owner or operator of the cargo vessel or passenger vessel, by the agent for
the vessel resident in this state, or by the Washington state maritime
commission pursuant to RCW 88.44.020. Subject to conditions imposed by the
office, the owner, operator, or agent may submit a single contingency plan for
cargo vessels or passenger vessels of a particular class.
(c) A
person who has contracted with a covered vessel to provide containment and
cleanup services and who meets the standards established pursuant to RCW
90.56.240, may submit the plan for any covered vessel for which the person is
contractually obligated to provide services. Subject to conditions imposed by
the office, the person may submit a single plan for more than one covered
vessel.
(4) A
contingency plan prepared for an agency of the federal government or another
state that satisfies the requirements of this section and rules adopted by the
office may be accepted by the office as a contingency plan under this section.
The office shall assure that to the greatest extent possible, requirements for
contingency plans under this section are consistent with the requirements for
contingency plans under federal law.
(5) In
reviewing the contingency plans required by this section, the office shall
consider at least the following factors:
(a)
The adequacy of containment and cleanup equipment, personnel, communications
equipment, notification procedures and call down lists, response time, and
logistical arrangements for coordination and implementation of response efforts
to remove oil spills promptly and properly and to protect the environment;
(b)
The nature and amount of vessel traffic within the area covered by the plan;
(c)
The volume and type of oil being transported within the area covered by the
plan;
(d)
The existence of navigational hazards within the area covered by the plan;
(e)
The history and circumstances surrounding prior spills of oil within the area covered
by the plan;
(f)
The sensitivity of fisheries and wildlife and other natural resources within
the area covered by the plan;
(g)
Relevant information on previous spills contained in on-scene coordinator
reports prepared by the director; and
(h) The
extent to which reasonable, cost-effective measures to prevent a likelihood
that a spill will occur have been incorporated into the plan.
(6)
The office shall approve a contingency plan only if it determines that the plan
meets the requirements of this section and that, if implemented, the plan is
capable, in terms of personnel, materials, and equipment, of removing oil
promptly and properly and minimizing any damage to the environment.
(7)
The approval of the contingency plan shall be valid for five years. Upon
approval of a contingency plan, the office shall provide to the person
submitting the plan a statement indicating that the plan has been approved, the
vessels covered by the plan, and other information the office determines should
be included.
(8) An
owner or operator of a covered vessel shall notify the office in writing
immediately of any significant change of which it is aware affecting its
contingency plan, including changes in any factor set forth in this section or
in rules adopted by the office. The office may require the owner or operator
to update a contingency plan as a result of these changes.
(9)
The office by rule shall require contingency plans to be reviewed, updated, if
necessary, and resubmitted to the office at least once every five years.
(10)
Approval of a contingency plan by the office does not constitute an express
assurance regarding the adequacy of the plan nor constitute a defense to
liability imposed under this chapter or other state law.
Sec.
21. RCW
88.46.070 and 1991 c 200 s 420 are each amended to read as follows:
(1)
The provisions of prevention plans and contingency plans approved by the office
pursuant to this chapter shall be legally binding on those persons submitting
them to the office and on their successors, assigns, agents, and employees.
The superior court shall have jurisdiction to restrain a violation of, compel
specific performance of, or otherwise to enforce such plans upon application by
the office. The office may issue an order pursuant to chapter 34.05 RCW
requiring compliance with a contingency plan or a prevention plan and may
impose administrative penalties for failure to comply with a plan.
(2)
If the administrator believes a person has violated or is violating or creates
a substantial potential to violate the provisions of this chapter, the
administrator shall notify the person of the administrator's determination by
registered mail. The determination shall not constitute an order or directive
under RCW 43.21B.310. Within thirty days from the receipt of notice of the
determination, the person shall file with the administrator a full report
stating what steps have been and are being taken to comply with the
determination of the administrator. The administrator shall issue an order or
directive, as the administrator deems appropriate under the circumstances, and
shall notify the person by registered mail.
(3)
If the administrator believes immediate action is necessary to accomplish the
purposes of this chapter, the administrator may issue an order or directive, as
appropriate under the circumstances, without first issuing a notice or
determination pursuant to subsection (2) of this section. An order or
directive issued pursuant to this subsection shall be served by registered mail
or personally upon any person to whom it is directed.
Sec.
22. RCW
88.46.080 and 1991 c 200 s 421 are each amended to read as follows:
(1)
Except as provided in subsection (2) of this section, it shall be unlawful for
the owner or operator to knowingly and intentionally operate in this state or
on the waters of this state a covered vessel without an approved contingency
plan or an approved prevention plan as required by this chapter, or financial
responsibility in compliance with chapter 88.40 RCW and the federal oil
pollution act of 1990. The first conviction under this section shall be a
gross misdemeanor under chapter 9A.20 RCW. A second or subsequent conviction
shall be a class C felony under chapter 9A.20 RCW.
(2) It
shall not be unlawful for the owner or operator to operate a covered vessel if:
(a)
The covered vessel is not required to have a contingency plan, spill prevention
plan, or financial responsibility;
(b)
All required plans have been submitted to the office as required by this
chapter and rules adopted by the office and the office is reviewing the plan
and has not denied approval; or
(c)
The covered vessel has entered state waters after the United States coast guard
has determined that the vessel is in distress.
(3) A
person may rely on a copy of the statement issued by the office pursuant to RCW
88.46.060 as evidence that a vessel has an approved contingency plan and the
statement issued pursuant to RCW 88.46.040 that a vessel has an approved
prevention plan.
(4)
Any person found guilty of willfully violating any of the provisions of this
chapter, or any final written orders or directive of the administrator or a
court in pursuance thereof shall be deemed guilty of a gross misdemeanor, as
provided in chapter 9A.20 RCW, and upon conviction thereof 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.
Sec.
23. RCW
88.46.090 and 1991 c 200 s 422 are each amended to read as follows:
(1)
Except as provided in subsection (4) of this section, it shall be unlawful for
a covered vessel to enter the waters of the state without an approved
contingency plan required by RCW 88.46.060, a spill prevention plan required by
RCW 88.46.040, or financial responsibility in compliance with chapter 88.40 RCW
and the federal oil pollution act of 1990. The office may deny entry onto the waters
of the state to any covered vessel that does not have a required contingency or
spill prevention plan or financial responsibility.
(2)
Except as provided in subsection (4) of this section, it shall be unlawful for
a covered vessel to transfer oil to or from an onshore or offshore
facility that does not have an approved contingency plan required under RCW
90.56.210, a spill prevention plan required by RCW 90.56.200, or financial
responsibility in compliance with chapter 88.40 RCW and the federal oil pollution
act of 1990.
(3)
The administrator may assess a civil penalty of up to one hundred thousand
dollars against the owner or operator of a vessel who is in violation of subsection
(1) or (2) of this section. Each day that the owner or operator of a
covered vessel is in violation of this section shall be considered a separate
violation.
(4) It
shall not be unlawful for a covered vessel to operate on the waters of the
state if:
(a) A
contingency plan, a prevention plan, or financial responsibility is not
required for the covered vessel;
(b) A
contingency plan and prevention plan has been submitted to the office as
required by this chapter and rules adopted by the office and the office is
reviewing the plan and has not denied approval; or
(c)
The covered vessel has entered state waters after the United States coast guard
has determined that the vessel is in distress.
(5)
Any person may rely on a copy of the statement issued by the office to RCW
88.46.060 as evidence that the vessel has an approved contingency plan and the
statement issued pursuant to RCW 88.46.040 as evidence that the vessel has an
approved spill prevention plan.
(6)
Except for violations of subsection (1) or (2) of this section, any person who
violates the provisions of this chapter or rules or orders adopted or issued
pursuant thereto, shall incur, in addition to any other penalty as provided by
law, a penalty in an amount of up to ten thousand dollars a day for each
violation. Each violation is a separate offense, and in case of a continuing
violation, every day's continuance is a separate violation. Every act of
commission or omission which procures, aids, or abets in the violation shall be
considered a violation under the provisions of this subsection and subject to
penalty. The penalty amount shall be set in consideration of the previous
history of the violator and the severity of the violation's impact on public
health and the environment in addition to other relevant factors. The penalty
shall be imposed pursuant to the procedures set forth in RCW 43.21B.300.
Sec.
24. RCW
88.46.110 and 1991 c 200 s 424 are each amended to read as follows:
(1)
The office shall establish regional marine safety committees ((at least))
for the Strait of Juan de Fuca/Northern Puget Sound, Southern Puget Sound, and
Grays Harbor/Pacific coast. It is the intent of the legislature that the
office also establish a regional marine safety committee jointly with the state
of Oregon for the Columbia river. The office by rule shall establish the
boundaries of the committees. The office may establish additional
committees that it determines will be in the public interest.
(2)
The administrator shall appoint to each regional committee for a term of three
years six persons representing a cross section of interests and the public with
an interest in maritime transportation and environmental issues.
(3)
The administrator or his or her designee shall chair each of the regional
committees. Each member of the committee shall be reimbursed for actual and
necessary expenses incurred in the performance of committee duties in
accordance with RCW 43.03.250.
(4)
Each regional committee shall be responsible for planning for the safe
navigation and operation of tankers, barges, and other vessels within each
region. Each committee shall prepare a regional marine safety plan,
encompassing all vessel traffic within the region. The coast guard, the
federal environmental protection agency, the army corps of engineers, and the
navy shall be invited to attend the meetings of each marine regional safety
committee.
(5)
The administrator shall adopt rules and guidelines for regional marine safety
plans in consultation with affected parties. The rules shall require the
committees to establish subcommittees to involve all interested parties in the
development of the plans and to require the committees to include a summary of
public comments and any minority reports with recommendations submitted to the
administrator. The rules shall also require the plans to consider all of the
following:
(a)
Requirements for tug escorts of tankers and other commercial vessels, and speed
limits for tankers and other vessels in addition to the requirements imposed by
statute;
(b) A
review and evaluation of the adequacy of and any changes needed in:
(i)
Anchorage designations and sounding checks;
(ii)
Communications systems;
(iii)
Commercial and recreational fishing, recreational boaters, and other small
vessel congestion in shipping lanes; and
(iv)
Placement and effectiveness of navigational aids, channel design plans, and the
traffic and routings from port construction and dredging projects;
(c)
Procedures for routing vessels during emergencies that impact navigation;
(d)
Management requirements for vessel control bridges;
(e)
Special protection for environmentally sensitive areas;
(f)
Suggested mechanisms to ensure that the provisions of the plan are fully and
regularly enforced; and
(g) A
recommendation as to whether establishing or expanding vessel traffic safety
systems within the regions is desirable.
(6)
Each regional marine safety plan shall be submitted to the office for approval
within one year after the regional marine safety committee is established. The
office shall review the plans for consistency with the rules and guidelines and
shall approve the plans or give reasons for their disapproval. If a regional
marine safety committee does not submit a regional marine safety plan to the
office within one year after the committee is established, the office, after
consulting with affected interests, may adopt a plan for the region that meets
the requirements of subsection (5) of this section.
(7)
Upon approval of a plan, the office shall implement those elements of the plan
over which the state has authority. If federal authority or action is
required, the office shall petition the appropriate agency or congress.
(8)
Not later than July 1st of each even-numbered year each regional marine safety
committee shall report its findings and recommendations to the marine oversight
board established in RCW 90.56.450 and the office concerning vessel traffic
safety in its region and any recommendations for improving tanker, barge, and
other vessel safety in the region by amending the regional marine safety plan.
The regional committees shall also provide technical assistance to the marine
oversight board.
(9)
The regional safety committees shall recommend to the office the need for, and
the structure and design of, an emergency response system for the Strait of
Juan de Fuca and the Pacific coast.
Sec.
25. RCW
90.48.120 and 1987 c 109 s 131 are each amended to read as follows:
(1)
Whenever, in the opinion of the department, any person shall violate or creates
a substantial potential to violate the provisions of this chapter or chapter
90.56 RCW, or fails to control the polluting content of waste discharged or
to be discharged into any waters of the state, the department shall notify such
person of its determination by registered mail. Such determination shall not
constitute an order or directive under RCW 43.21B.310. Within thirty days from
the receipt of notice of such determination, such person shall file with the
department a full report stating what steps have been and are being taken to
control such waste or pollution or to otherwise comply with the determination
of the department. Whereupon the department shall issue such order or
directive as it deems appropriate under the circumstances, and shall notify such
person thereof by registered mail.
(2)
Whenever the department deems immediate action is necessary to accomplish the
purposes of this chapter ((90.48)) or chapter 90.56 RCW,
it may issue such order or directive, as appropriate under the circumstances, without
first issuing a notice or determination pursuant to subsection (1) of this
section. An order or directive issued pursuant to this subsection shall be
served by registered mail or personally upon any person to whom it is directed.
Sec.
26. RCW
90.48.140 and 1973 c 155 s 8 are each amended to read as follows:
Any
person found guilty of willfully violating any of the provisions of this
chapter or chapter 90.56 RCW, or any final written orders or directive
of the department or a court in pursuance thereof shall be deemed guilty of a
crime, and upon conviction thereof 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 or chapter 90.56 RCW occurs may be deemed a
separate and additional violation.
Sec.
27. RCW
90.48.144 and 1987 c 109 s 17 are each amended to read as follows:
Every
person who:
(1)
Violates the terms or conditions of a waste discharge permit issued pursuant to
RCW 90.48.180 or 90.48.260 through 90.48.262, or
(2)
Conducts a commercial or industrial operation or other point source discharge
operation without a waste discharge permit as required by RCW 90.48.160 or
90.48.260 through 90.48.262, or
(3)
Violates the provisions of RCW 90.48.080, or other sections of this chapter or
chapter 90.56 RCW or ((regulations)) rules or orders adopted
or issued pursuant ((thereto)) to either of those chapters, shall
incur, in addition to any other penalty as provided by law, a penalty in an
amount of up to ten thousand dollars a day for every such violation. Each and
every such violation shall be a separate and distinct offense, and in case of a
continuing violation, every day's continuance shall be and be deemed to be a
separate and distinct violation. Every act of commission or omission which
procures, aids or abets in the violation shall be considered a violation under
the provisions of this section and subject to the penalty herein provided for.
The penalty amount shall be set in consideration of the previous history of the
violator and the severity of the violation's impact on public health and/or the
environment in addition to other relevant factors. The penalty herein provided
for shall be imposed pursuant to the procedures set forth in RCW 43.21B.300.
Sec.
28. RCW
90.48.366 and 1991 c 200 s 812 are each amended to read as follows:
By
July 1, 1991, the department, in consultation with the departments of
fisheries, wildlife, and natural resources, and the parks and recreation
commission, shall adopt rules establishing a compensation schedule for the
discharge of oil in violation of this chapter and chapter 90.56 RCW. The
department shall establish a scientific advisory board to assist in
establishing the compensation schedule. The amount of compensation assessed
under this schedule shall be no less than one dollar per gallon of oil spilled
and no greater than fifty dollars per gallon of oil spilled. The compensation
schedule shall reflect adequate compensation for unquantifiable damages or for
damages not quantifiable at reasonable cost for any adverse environmental,
recreational, aesthetic, or other effects caused by the spill and shall take
into account:
(1)
Characteristics of any oil spilled, such as toxicity, dispersibility,
solubility, and persistence, that may affect the severity of the effects on the
receiving environment, living organisms, and recreational and aesthetic
resources;
(2)
The sensitivity of the affected area as determined by such factors as: (a) The
location of the spill; (b) habitat and living resource sensitivity; (c)
seasonal distribution or sensitivity of living resources; (d) areas of
recreational use or aesthetic importance; (e) the proximity of the spill to
important habitats for birds, aquatic mammals, fish, or to species listed as
threatened or endangered under state or federal law; (f) significant
archaeological resources as determined by the office of archaeology and
historic preservation; and (((f))) (g) other areas of special
ecological or recreational importance, as determined by the department. If
the department has adopted rules for a compensation table prior to July 1,
1992, the sensitivity of significant archaeological resources shall only be
included among factors to be used in the compensation table when the department
revises the rules for the compensation table after July 1, 1992; and
(3)
Actions taken by the party who spilled oil or any party liable for the spill
that: (a) Demonstrate a recognition and affirmative acceptance of
responsibility for the spill, such as the immediate removal of oil and the
amount of oil removed from the environment; or (b) enhance or impede the
detection of the spill, the determination of the quantity of oil spilled, or
the extent of damage, including the unauthorized removal of evidence such as
injured fish or wildlife.
Sec.
29. RCW
90.48.368 and 1991 c 200 s 814 are each amended to read as follows:
(1)
The department shall adopt rules establishing a formal process for
preassessment screening of damages resulting from spills to the waters of the
state causing the death of, or injury to, fish, animals, vegetation, or other
resources of the state. The rules shall specify the conditions under which the
department shall convene a preassessment screening committee. The
preassessment screening process shall occur concurrently with reconnaissance
activities. The committee shall use information obtained from reconnaissance
activities as well as any other relevant resource and resource use
information. For each incident, the committee shall determine whether a damage
assessment investigation should be conducted, or, whether the compensation
schedule authorized under RCW 90.48.366 and 90.48.367 should be used to assess
damages. The committee may accept restoration or enhancement projects or
studies proposed by the liable parties in lieu of some or all of: (a) The
compensation schedule authorized under RCW 90.48.366 and 90.48.367; or (b) the
claims from damage assessment studies authorized under RCW 90.48.142.
(2) A preassessment
screening committee may consist of representatives of the departments of
ecology, fisheries, wildlife, natural resources, social and health services,
and emergency management, the parks and recreation commission, the office of
archaeology and historic preservation, as well as other federal, state, and
local agencies, and tribal and local governments whose presence would enhance
the reconnaissance or damage assessment aspects of spill response. The
department shall chair the committee and determine which representatives will
be needed on a spill-by-spill basis.
(3)
The committee shall consider the following factors when determining whether a
damage assessment study authorized under RCW 90.48.367 should be conducted:
(a) Whether evidence from reconnaissance investigations suggests that injury
has occurred or is likely to occur to publicly owned resources; (b) the
potential loss in services provided by resources injured or likely to be
injured and the expected value of the potential loss; (c) whether a restoration
project to return lost services is technically feasible; (d) the accuracy of
damage quantification methods that could be used and the anticipated
cost-effectiveness of applying each method; (e) the extent to which likely
injury to resources can be verified with available quantification methods; and
(f) whether the injury, once quantified, can be translated into monetary values
with sufficient precision or accuracy.
(4)
When a resource damage assessment is required for an oil spill in the navigable
waters of the state, as defined in RCW 90.56.010, the state trustee agency
responsible for the resource and habitat damaged shall conduct the damage
assessment and pursue all appropriate remedies with the responsible party.
(5)
Oil spill damage assessment studies authorized under RCW 90.48.367 may only be
conducted if the committee, after considering the factors enumerated in
subsection (3) of this section, determines that the damages to be investigated
are quantifiable at a reasonable cost and that proposed assessment studies are
clearly linked to quantification of the damages incurred.
(6) As
new information becomes available, the committee may reevaluate the scope of
damage assessment using the factors listed in subsection (3) of this section
and may reduce or expand the scope of damage assessment as appropriate.
(7)
The preassessment screening process shall provide for the ongoing involvement
of persons who may be liable for damages resulting from an oil spill. The
department may negotiate with a potentially liable party to perform restoration
and enhancement projects or studies which may substitute for all or part of the
compensation authorized under RCW 90.48.366 and 90.48.367 or the damage
assessment studies authorized under RCW 90.48.367.
(8)
For the purposes of this section and RCW 90.48.367, the cost of a damage
assessment shall be considered "reasonable" when the anticipated cost
of the damage assessment is expected to be less than the anticipated damage
that may have occurred or may occur.
Sec.
30. RCW
90.48.400 and 1991 c 200 s 816 are each amended to read as follows:
(1)
Moneys in the coastal protection fund shall be disbursed for the following
purposes and no others:
(a)
Environmental restoration and enhancement projects intended to restore or
enhance environmental, recreational, archaeological, or aesthetic
resources for the benefit of Washington's citizens;
(b)
Investigations of the long-term effects of oil spills; and
(c)
Development and implementation of an aquatic land geographic information
system.
(2)
The director may allocate a portion of the fund to be devoted to research and
development in the causes, effects, and removal of pollution caused by the
discharge of oil or other hazardous substances.
(3) A
steering committee consisting of representatives of the department of ecology,
fisheries, wildlife, and natural resources, and the parks and recreation
commission shall authorize the expenditure of the moneys collected under RCW
90.48.366 through 90.48.368, after consulting impacted local agencies and local
and tribal governments.
(4)
Agencies may not be reimbursed from the coastal protection fund for the
salaries and benefits of permanent employees for routine operational support.
Agencies may only be reimbursed under this section if money for reconnaissance
and damage assessment activities is unavailable from other sources.
Sec.
31. RCW
90.56.010 and 1991 c 200 s 102 are each amended to read as follows:
For
purposes of this chapter, the following definitions shall apply unless the
context indicates otherwise:
(1)
"Administrator" means the administrator of the office of marine
safety created in RCW 43.21I.010.
(2)
"Best achievable protection" means the highest level of protection
that can be achieved through the use of the best achievable technology and
those staffing levels, training procedures, and operational methods that
provide the greatest degree of protection achievable. The director's determination
of best achievable protection shall be guided by the critical need to protect
the state's natural resources and waters, while considering (a) the additional
protection provided by the measures; (b) the technological achievability of the
measures; and (c) the cost of the measures.
(3)
"Best achievable technology" means the technology that provides the
greatest degree of protection taking into consideration (a) processes that are
being developed, or could feasibly be developed, given overall reasonable expenditures
on research and development, and (b) processes that are currently in use. In
determining what is best achievable technology, the director shall consider the
effectiveness, engineering feasibility, and commercial availability of the
technology.
(4)
"Board" means the pollution control hearings board.
(5)
"Cargo vessel" means a self-propelled ship in commerce, other than a
tank vessel or a passenger vessel, ((greater than)) three hundred or
more gross tons, including but not limited to, commercial fish processing
vessels and freighters.
(6)
"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.
(7)
"Committee" means the preassessment screening committee established
under RCW 90.48.368.
(8)
"Covered vessel" means a tank vessel, cargo vessel, or passenger
vessel.
(9)
"Department" means the department of ecology.
(10)
"Director" means the director of the department of ecology.
(11)
"Discharge" means any spilling, leaking, pumping, pouring, emitting,
emptying, or dumping.
(12)(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) A
facility does not include any: (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) ((a)) motor vehicle motor fuel
outlet; (iv) ((a)) facility that is operated as part of an exempt
agricultural activity as provided in RCW 82.04.330; or (v) ((a)) 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.
(13)
"Fund" means the state coastal protection fund as provided in RCW
90.48.390 and 90.48.400.
(14)
"Having control over oil" shall include but not be limited to any
person using, storing, or transporting oil immediately prior to entry of such
oil into the waters of the state, and shall specifically include carriers and
bailees of such oil.
(15)
"Marine facility" means any facility used for tank vessel wharfage or
anchorage, including any equipment used for the purpose of handling or
transferring oil in bulk to or from a tank vessel.
(16)
"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.
(17)
"Necessary expenses" means the expenses incurred by the department
and assisting state agencies for (a) investigating the source of the discharge;
(b) investigating the extent of the environmental damage caused by the
discharge; (c) conducting actions necessary to clean up the discharge; (d)
conducting predamage and damage assessment studies; and (e) enforcing the
provisions of this chapter and collecting for damages caused by a discharge.
(18)
"Oil" or "oils" means naturally occurring liquid
hydrocarbons at atmospheric temperature and pressure coming from the earth,
including condensate and natural gasoline, and any fractionation thereof,
including, but not limited to, crude oil, petroleum, gasoline, fuel oil, diesel
oil, 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 101(14) of the federal
comprehensive environmental response, compensation, and liability act of 1980,
as amended by P.L. 99‑499.
(19)
"Offshore facility" means any facility((, as defined in subsection
(12) of this section,)) located in, on, or under any of the navigable waters
of the state, but does not include a facility any part of which is located in,
on, or under any land of the state, other than submerged land.
(20)
"Onshore facility" means any facility((, as defined in subsection
(12) of this section,)) any part of which is located in, on, or under any
land of the state, other than submerged land, that because of its location,
could reasonably be expected to cause substantial harm to the environment by
discharging oil into or on the navigable waters of the state or the adjoining
shorelines.
(21)(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.
(22)
"Passenger vessel" means a ship of ((greater than)) three
hundred or more gross tons ((or five hundred or more international gross
tons)) with a fuel capacity of at least six thousand gallons
carrying passengers for compensation.
(23)
"Person" means any political subdivision, government agency,
municipality, industry, public or private corporation, copartnership,
association, firm, individual, or any other entity whatsoever.
(24)
"Ship" means any boat, ship, vessel, barge, or other floating craft
of any kind.
(25)
"Spill" means an unauthorized discharge of oil or hazardous
substances into the waters of the state.
(26)
"Tank vessel" means a ship that is constructed or adapted to carry,
or that carries, oil in bulk as cargo or cargo residue, and that:
(a)
Operates on the waters of the state; or
(b)
Transfers oil in a port or place subject to the jurisdiction of this state.
(27)
(("Technical feasibility" or "technically feasible"
shall mean that given available technology, a restoration or enhancement
project can be successfully completed at a cost that is not disproportionate to
the value of the resource prior to the injury.
(28)))
"Waters of the state" includes lakes, rivers, ponds, streams, inland
waters, underground water, salt waters, estuaries, tidal flats, beaches and
lands adjoining the seacoast of the state, sewers, and all other surface waters
and watercourses within the jurisdiction of the state of Washington.
(((29)))
(28) "Worst case spill" means: (a) In the case of a vessel, a
spill of the entire cargo and fuel of the vessel complicated by adverse weather
conditions; and (b) in the case of an onshore or offshore facility, the largest
foreseeable spill in adverse weather conditions.
Sec.
32. RCW
90.56.100 and 1990 c 116 s 12 are each amended to read as follows:
(1)
The Washington wildlife rescue coalition shall be established for the purpose
of coordinating the rescue and rehabilitation of wildlife injured or endangered
by oil spills or the release of other hazardous substances into the
environment.
(2)
The Washington wildlife rescue coalition shall be composed of:
(a) A
representative of the department of wildlife designated by the director of wildlife.
The department of wildlife shall be designated as lead agency in the operations
of the coalition. The coalition shall be chaired by the representative from
the department of wildlife;
(b) A
representative of the department of ecology designated by the director;
(c) A
representative of the department of community development emergency management
program designated by the director of community development;
(d) A
licensed veterinarian, with experience and training in wildlife rehabilitation,
appointed by the veterinary board of governors;
(e)
The director of the Washington conservation corps;
(f) A
lay person, with training and experience in the rescue and rehabilitation of
wildlife appointed by the department; and
(g) A
person designated by the legislative authority of the county where oil spills
or spills of other hazardous substances may occur. This member of the
coalition shall serve on the coalition until wildlife rescue and rehabilitation
is completed in that county. The completion of any rescue or rehabilitation
project shall be determined by the director of wildlife.
(3)
The duties of the Washington wildlife rescue coalition shall be to:
(a)
Develop an emergency mobilization plan to rescue and rehabilitate waterfowl and
other wildlife that are injured or endangered by an oil spill or the release of
other hazardous substances into the environment;
(b)
Develop and maintain a resource directory of persons, governmental agencies,
and private organizations that may provide assistance in an emergency rescue
effort;
(c)
Provide advance training and instruction to volunteers in rescuing and
rehabilitating waterfowl and wildlife injured or endangered by oil spills or
the release of other hazardous substances into the environment. The training may
be provided through grants to community colleges or to groups that conduct
programs for training volunteers. The coalition representatives from the
agencies described in subsection (2) of this section shall coordinate training
efforts with the director of the Washington conservation corps and work to
provide training opportunities for young citizens;
(d)
Obtain and maintain equipment and supplies used in emergency rescue efforts;
(e)
Report to the appropriate standing committees of the legislature on the
progress of the coalition's efforts and detail future funding options necessary
for the implementation of this section and RCW 90.56.110. The coalition shall
report by January 30, 1991.
(4)(a)
Expenses for the coalition may be provided by the coastal protection fund
administered according to RCW 90.48.400.
(b)
The ((commission)) coalition is encouraged to seek grants, gifts,
or donations from private sources in order to carry out the provisions of this
section and RCW 90.56.110. Any private funds donated to the commission shall
be deposited into the wildlife rescue account hereby created within the
wildlife fund as authorized under Title 77 RCW.
Sec.
33. RCW
90.56.210 and 1991 c 200 s 202 are each amended to read as follows:
(1)
Each onshore and offshore facility shall have a contingency plan for the
containment and cleanup of oil spills from the facility into the waters of the
state and for the protection of fisheries and wildlife, natural resources, and
public and private property from such spills. The department shall by rule
adopt and periodically revise standards for the preparation of contingency
plans. The department shall require contingency plans, at a minimum, to meet
the following standards:
(a)
Include full details of the method of response to spills of various sizes from
any facility which is covered by the plan;
(b) Be
designed to be capable in terms of personnel, materials, and equipment, of
promptly and properly, to the maximum extent practicable, as defined by the
department removing oil and minimizing any damage to the environment resulting
from a worst case spill;
(c)
Provide a clear, precise, and detailed description of how the plan relates to
and is integrated into relevant contingency plans which have been prepared by
cooperatives, ports, regional entities, the state, and the federal government;
(d)
Provide procedures for early detection of oil spills and timely notification of
such spills to appropriate federal, state, and local authorities under
applicable state and federal law;
(e)
State the number, training preparedness, and fitness of all dedicated,
prepositioned personnel assigned to direct and implement the plan;
(f) Incorporate
periodic training and drill programs to evaluate whether personnel and
equipment provided under the plan are in a state of operational readiness at
all times;
(g)
Describe important features of the surrounding environment, including fish and
wildlife habitat, environmentally and archaeologically sensitive areas,
and public facilities. The departments of ecology, fisheries, wildlife, and
natural resources, and the office of archaeology and historic preservation,
upon request, shall provide information that they have available to assist in
preparing this description. If the department has adopted rules for
contingency plans prior to July 1, 1992, the description of archaeologically
sensitive areas shall only be required when the department revises the rules
for contingency plans after July 1, 1992. The description of archaeologically
sensitive areas shall not be required to be included in a contingency plan
until it is reviewed and updated pursuant to subsection (9) of this section;
(h)
State the means of protecting and mitigating effects on the environment,
including fish, marine mammals, and other wildlife, and ensure that
implementation of the plan does not pose unacceptable risks to the public or
the environment;
(i)
Provide arrangements for the prepositioning of oil spill containment and
cleanup equipment and trained personnel at strategic locations from which they
can be deployed to the spill site to promptly and properly remove the spilled
oil;
(j)
Provide arrangements for enlisting the use of qualified and trained cleanup
personnel to implement the plan;
(k)
Provide for disposal of recovered spilled oil in accordance with local, state,
and federal laws;
(l)
Until a spill prevention plan has been submitted pursuant to RCW 90.56.200,
state the measures that have been taken to reduce the likelihood that a spill
will occur, including but not limited to, design and operation of a facility,
training of personnel, number of personnel, and backup systems designed to
prevent a spill;
(m)
State the amount and type of equipment available to respond to a spill, where
the equipment is located, and the extent to which other contingency plans rely
on the same equipment; and
(n) If
the department has adopted rules permitting the use of dispersants, the
circumstances, if any, and the manner for the application of the dispersants in
conformance with the department's rules.
(2)(a)
The following shall submit contingency plans to the department within six
months after the department adopts rules establishing standards for contingency
plans under subsection (1) of this section:
(i)
Onshore facilities capable of storing one million gallons or more of oil; and
(ii)
Offshore facilities.
(b)
Contingency plans for all other onshore and offshore facilities shall be
submitted to the department within eighteen months after the department has
adopted rules under subsection (1) of this section. The department may adopt a
schedule for submission of plans within the eighteen-month period.
(3)(a)
The owner or operator of a facility shall submit the contingency plan for the
facility.
(b) A
person who has contracted with a facility to provide containment and cleanup
services and who meets the standards established pursuant to RCW 90.56.240, may
submit the plan for any facility for which the person is contractually
obligated to provide services. Subject to conditions imposed by the
department, the person may submit a single plan for more than one facility.
(4) A
contingency plan prepared for an agency of the federal government or another
state that satisfies the requirements of this section and rules adopted by the
department may be accepted by the department as a contingency plan under this
section. The department shall assure that to the greatest extent possible,
requirements for contingency plans under this section are consistent with the
requirements for contingency plans under federal law.
(5) In
reviewing the contingency plans required by this section, the department shall
consider at least the following factors:
(a)
The adequacy of containment and cleanup equipment, personnel, communications
equipment, notification procedures and call down lists, response time, and
logistical arrangements for coordination and implementation of response efforts
to remove oil spills promptly and properly and to protect the environment;
(b)
The nature and amount of vessel traffic within the area covered by the plan;
(c)
The volume and type of oil being transported within the area covered by the
plan;
(d)
The existence of navigational hazards within the area covered by the plan;
(e)
The history and circumstances surrounding prior spills of oil within the area
covered by the plan;
(f)
The sensitivity of fisheries and wildlife and other natural resources within
the area covered by the plan;
(g)
Relevant information on previous spills contained in on-scene coordinator
reports prepared by the department; and
(h)
The extent to which reasonable, cost-effective measures to prevent a likelihood
that a spill will occur have been incorporated into the plan.
(6)
The department shall approve a contingency plan only if it determines that the
plan meets the requirements of this section and that, if implemented, the plan
is capable, in terms of personnel, materials, and equipment, of removing oil
promptly and properly and minimizing any damage to the environment.
(7)
The approval of the contingency plan shall be valid for five years. Upon
approval of a contingency plan, the department shall provide to the person submitting
the plan a statement indicating that the plan has been approved, the facilities
or vessels covered by the plan, and other information the department determines
should be included.
(8) An
owner or operator of a facility shall notify the department in writing
immediately of any significant change of which it is aware affecting its
contingency plan, including changes in any factor set forth in this section or
in rules adopted by the department. The department may require the owner or
operator to update a contingency plan as a result of these changes.
(9)
The department by rule shall require contingency plans to be reviewed, updated,
if necessary, and resubmitted to the department at least once every five years.
(10)
Approval of a contingency plan by the department does not constitute an express
assurance regarding the adequacy of the plan nor constitute a defense to
liability imposed under this chapter or other state law.
Sec.
34. RCW
90.56.300 and 1991 c 200 s 301 are each amended to read as follows:
(1)
Except as provided in subsection (2) of this section, it shall be unlawful for
the owner or operator to knowingly and intentionally operate in this state or
on the waters of this state an onshore or offshore facility without an approved
contingency plan or an approved prevention plan as required by this chapter, or
financial responsibility in compliance with chapter 88.40 RCW and the federal
oil pollution act of 1990. The first conviction under this section shall be a
gross misdemeanor under chapter 9A.20 RCW. A second or subsequent conviction
shall be a class C felony under chapter 9A.20 RCW.
(2) It
shall not be unlawful for the owner or operator to operate an onshore or
offshore facility if:
(a)
The facility is not required to have a contingency plan, spill prevention plan,
or financial responsibility; or
(b)
All required plans have been submitted to the department as required by RCW
90.56.210 and rules adopted by the department and the department is reviewing
the plan and has not denied approval.
(3) A
person may rely on a copy of the statement issued by the department pursuant to
RCW 90.56.210(7) as evidence that a facility has an approved contingency plan
and the statement issued pursuant to RCW ((90.56.200(5))) 90.56.200(4)
that a facility has an approved prevention plan.
Sec.
35. RCW
90.56.310 and 1991 c 200 s 302 are each amended to read as follows:
(1)
Except as provided in subsection (3) of this section, it shall be unlawful:
(a)
For the owner or operator to operate an onshore or offshore facility without an
approved contingency plan as required under RCW 90.56.210, a spill prevention
plan required by RCW 90.56.200, or financial responsibility in compliance with
chapter 88.40 RCW and the federal oil pollution act of 1990; or
(b)
For the owner or operator of an onshore or offshore facility to ((accept))
transfer cargo or passengers to or from a covered vessel that
does not have an approved contingency plan or an approved prevention plan
required under chapter 88.46 RCW or financial responsibility in compliance with
chapter 88.40 RCW and the federal oil pollution act of 1990.
(2) ((The
department may notify the secretary of state to suspend the business license of
any onshore or offshore facility or other person that is in violation of this
section.)) The department may assess a civil penalty under RCW 43.21B.300
of up to one hundred thousand dollars against any person who is in violation of
this section. Each day that a facility or person is in violation of this
section shall be considered a separate violation.
(3) It
shall not be unlawful for a facility or other person to operate or accept cargo
or passengers from a covered vessel if:
(a) A
contingency plan, a prevention plan, or financial responsibility is not
required for the facility; or
(b) A
contingency and prevention plan has been submitted to the department as
required by this chapter and rules adopted by the department and the department
is reviewing the plan and has not denied approval.
(4)
Any person may rely on a copy of the statement issued by the department
pursuant to RCW 90.56.210(7) as evidence that the facility has an approved
contingency plan and the statement issued pursuant to RCW ((90.56.200(5)))
90.56.200(4) as evidence that the facility has an approved spill
prevention plan. Any person may rely on a copy of the statement issued by the
office to RCW 88.46.060 as evidence that the vessel has an approved contingency
plan and the statement issued pursuant to RCW 88.46.040 as evidence that the
vessel has an approved prevention plan.
Sec.
36. RCW
90.56.330 and 1990 c 116 s 20 are each amended to read as follows:
Except
as otherwise provided in RCW ((90.48.383)) 90.56.390, any person
who negligently discharges oil, or causes or permits the entry of the same,
shall incur, in addition to any other penalty as provided by law, a penalty in
an amount of up to twenty thousand dollars for every such violation, and for
each day the spill poses risks to the environment as determined by the
director. Any person who intentionally or recklessly discharges or causes or
permits the entry of oil into the waters of the state shall incur, in addition
to any other penalty authorized by law, a penalty of up to one hundred thousand
dollars for every such violation and for each day the spill poses risks to the
environment as determined by the director. The amount of the penalty shall be
determined by the director after taking into consideration the gravity of the
violation, the previous record of the violator in complying, or failing to
comply, with the provisions of chapter 90.48 RCW, the speed and thoroughness of
the collection and removal of the oil, and such other considerations as the
director deems appropriate. Every act of commission or omission which
procures, aids or abets in the violation shall be considered a violation under
the provisions of this section and subject to the penalty herein provided for.
The penalty herein provided for shall be imposed pursuant to RCW 43.21B.300.
Sec.
37. RCW
90.56.380 and 1990 c 116 s 19 are each amended to read as follows:
In
addition to any cause of action the state may have to recover necessary
expenses for the cleanup of oil pursuant to RCW 90.56.340 and 90.56.330, and
except as otherwise provided in RCW ((90.48.383)) 90.56.390, any
other person causing the entry of oil shall be directly liable to the state for
the necessary expenses of oil cleanup arising from such entry and the state
shall have a cause of action to recover from any or all of said persons.
Except as otherwise provided in RCW ((90.48.383)) 90.56.390, any
person liable for cost of oil cleanup as provided in RCW 90.56.340 and
90.56.330 shall have a cause of action to recover for costs of cleanup from any
other person causing the entry of oil into the waters of the state including
any amount recoverable by the state as necessary expenses under RCW 90.56.330.
Sec.
38. RCW
90.56.390 and 1991 c 200 s 304 are each amended to read as follows:
(1)(a)
((Notwithstanding any other provision of law,)) A person is not
liable for removal costs or damages that result from actions taken or omitted
to be taken in the course of rendering care, assistance, or advice consistent
with the national contingency plan or as otherwise directed by the federal
on-scene coordinator or by the official within the department with
responsibility for oil spill response. This subsection (1)(a) does not apply:
(i) To
a responsible party;
(ii)
With respect to personal injury or wrongful death; or
(iii)
If the person is grossly negligent or engages in willful misconduct.
(b) A
responsible party is liable for any removal costs and damages that another
person is relieved of under (a) of this subsection.
(c)
Nothing in this section affects the liability of a responsible party for oil
spill response under state law.
(2)
For the purposes of this section:
(a)
"Damages" means damages of any kind for which liability may exist
under the laws of this state resulting from, arising out of, or related to the
discharge or threatened discharge of oil.
(b) (("Discharge"
means any emission other than natural seepage, intentional or unintentional,
and includes, but is not limited to, spilling, leaking, pumping, pouring,
emitting, emptying, or dumping.
(c)))
"Federal on-scene coordinator" means the federal official
predesignated by the United States environmental protection agency or the
United States coast guard to coordinate and direct federal responses under
subpart D, or the official designated by the lead agency to coordinate and
direct removal under subpart E, of the national contingency plan.
(((d)))
(c) "National contingency plan" means the national contingency
plan prepared and published under section 311(d) of the federal water pollution
control act (33 U.S.C. Sec. 1321(d)), as amended by the oil pollution act of
1990 (P.L. 101‑380, 104 Stat. 484 (1990)).
(((e)
"Oil" means oil of any kind or in any form, including, but not
limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes
other than dredged spoil.
(f)
"Person" means an individual, corporation, partnership, association,
state, municipality, commission, or political subdivision of a state, or any
interstate body.
(g))) (d)
"Removal costs" means the costs of removal that are incurred after a
discharge of oil has occurred or, in any case in which there is a substantial
threat of a discharge of oil, the costs to prevent, minimize, or mitigate oil
pollution from such an incident.
(((h)))
(e) "Responsible party" means a person liable under RCW
90.56.370.
Sec.
39. RCW
90.56.400 and 1991 c 200 s 305 are each amended to read as follows:
The
department shall investigate each activity or project conducted under RCW
90.56.350 to determine, if possible, the circumstances surrounding the entry of
oil into waters of the state and the person or persons allowing said entry or
responsible for the act or acts which result in said entry. Whenever it
appears to the department, after investigation, that a specific person or
persons are responsible for the necessary expenses incurred by the state
pertaining to a project or activity as specified in RCW 90.56.360, the
department shall notify said person or persons by appropriate order. The
department may not issue an order pertaining to a project or activity which was
completed more than five years prior to the date of the proposed issuance of
the order. The order shall state the findings of the department, the amount of
necessary expenses incurred in conducting the project or activity, and a notice
that said amount is due and payable immediately upon receipt of said order.
The department may, upon application from the recipient of an order received
within thirty days from the receipt of the order, reduce or set aside in its
entirety the amount due and payable, when it appears from the application, and
from any further investigation the department may desire to undertake, that a
reduction or setting aside is just and fair under all the circumstances. If
the amount specified in the order issued by the department notifying said
person or persons is not paid within thirty days after receipt of notice
imposing the same, or if an application has been made within thirty days as
herein provided and the amount provided in the order issued by the department subsequent
to such application is not paid within fifteen days after receipt thereof, the
attorney general, upon request of the department, shall bring an action on
behalf of the state in the superior court of Thurston county or any county in
which the person to which the order is directed does business, or in any other
court of competent jurisdiction, to recover the amount specified in the final
order of the department. No order issued under this section shall be construed
as an order within the meaning of RCW 43.21B.310 and shall not be appealable to
the hearings board. In any action to recover necessary expenses as herein
provided said person shall be relieved from liability for necessary expenses if
the person can prove that the oil to which the necessary expenses relate
entered the waters of the state by causes set forth in RCW ((90.56.320(2)))
90.56.370(2).
Sec.
40. RCW
90.56.450 and 1991 c 200 s 501 are each amended to read as follows:
(1)
The ((oil)) marine oversight board is established to provide independent
oversight of the actions of the federal government, industry, the department,
the office, and other state agencies with respect to oil spill prevention and
response for covered vessels and onshore and offshore facilities.
(2)(a)
The board may, at its own discretion, study any aspect of oil spill prevention
and response for covered vessels and onshore and offshore facilities in the
state. The board shall report to the governor and make recommendations to the
department and the office on activities of the federal government and industry
with respect to oil spill prevention and response for covered vessels and
onshore and offshore facilities, including recommendations for the state's
response to those actions. The board shall specifically review the need for,
and the structure and design of an emergency response system for the Strait of
Juan de Fuca and the Pacific coast. The board shall also make recommendations
to the legislature and other state agencies on any provision of this chapter,
other state laws, and rules, policies, and guidelines adopted by the
department, the office, or((,)) other state agencies relating to the
prevention and cleanup of oil spills into the waters of the state from covered
vessels and onshore and offshore facilities.
(b) To
minimize duplication of effort, reviews conducted by the board shall be
coordinated with related activities of the federal government, the department,
the office, and other appropriate state and international entities. The Puget
Sound water quality authority shall ensure that studies and recommendations by
the board shall not be duplicated by any recommendations prepared and adopted
pursuant to chapter 90.70 RCW after May 15, 1991.
(c)
The board shall evaluate and report at least annually to the governor and the
appropriate standing committees of the legislature on oil spill prevention,
response, and preparedness programs within the state for covered vessels and
onshore and offshore facilities.
(3)
There shall be five members of the board appointed by the governor for terms of
five years. Members' terms shall be staggered. The members of the board shall
be representative of the public and shall have demonstrable knowledge of
environmental protection and the study of marine ecosystems, or have
familiarity with marine transportation systems.
(4) A
chair shall be selected by majority vote of the board. The board shall meet as
often as required, but at least four times per year. Members shall be
reimbursed for travel and expenses for attending meetings as provided in RCW
43.03.050 and 43.03.060.
(5)
The chair may hire staff as necessary for the board to fulfill its
responsibilities.
Sec.
41. RCW
90.56.510 and 1991 c 200 s 806 are each amended to read as follows:
The ((state))
oil spill administration account is created in the state treasury. All
receipts from RCW 82.23B.020(2) shall be deposited in the account. Moneys from
the account may be spent only after appropriation. The account is subject to
allotment procedures under chapter 43.88 RCW. On July 1 of each odd-numbered
year, if receipts deposited in the account from the tax imposed by RCW
82.23B.020(2) for the previous fiscal biennium exceed the amount appropriated
from the account for the previous fiscal biennium, the state treasurer shall
transfer the amount of receipts exceeding the appropriation to the oil spill
response account. If, on the first day of any calendar month, the balance of
the oil spill response account is greater than twenty-five million
dollars and the balance of the oil spill administration account exceeds
the unexpended appropriation for the current biennium, then the tax under RCW
82.23B.020(2) shall be suspended on the first day of the next calendar month
until the beginning of the following biennium, provided that the tax shall not
be suspended during the last six months of the biennium. If the tax imposed
under RCW 82.23B.020(2) is suspended during two consecutive biennia, the
department shall by November 1st after the end of the second biennium,
recommend to the appropriate standing committees an adjustment in the tax
rate. For the period 1991‑93 the state treasurer may transfer funds from
the oil spill response account to the oil spill administration account in
amounts necessary to support appropriations made from the oil spill
administration account in the omnibus appropriations act. Expenditures from
the oil spill administration account shall be used exclusively for the
administrative costs related to the purposes of this chapter, and chapters
90.48, 88.40, and 88.46 RCW. Costs of administration include the costs of:
(1)
Routine responses not covered under RCW 90.56.500;
(2)
Management and staff development activities;
(3)
Development of rules and policies and the state-wide plan provided for in RCW
90.56.060;
(4)
Facility and vessel plan review and approval, drills, inspections,
investigations, enforcement, and litigation;
(5)
Interagency coordination and public outreach and education;
(6)
Collection and administration of the tax provided for in chapter 82.23B RCW;
and
(7)
Appropriate travel, goods and services, contracts, and equipment.
Sec.
42. RCW
90.56.520 and 1991 c 200 s 807 are each amended to read as follows:
The
director of the department of ecology shall submit a report to the appropriate
standing committees of the legislature by November 1 of each even-numbered year
showing detailed information regarding expenditures authorized by the director
under RCW 90.56.500. The report shall include, but not be limited to:
(1)
The total amount spent for each response for which the director has approved
expenditures and the amount paid for from the oil spill ((prevention
and)) response account;
(2)
The amount recovered from a responsible party for each spill;
(3)
The amount of time between a spill and the time a responsible party assumes
responsibility for the response costs related to a spill;
(4)
The number of incidents for which the director has determined that the
responsible party or another source was available to pay for the response; and
(5) A
recommendation concerning the need to continue collecting the tax under RCW
82.23B.020(1).
This
section shall expire December 31, 1996.
NEW
SECTION. Sec. 43. If any
provision of this act or its application to any person or circumstance is held
invalid, the remainder of the act or the application of the provision to other
persons or circumstances is not affected.
NEW
SECTION. Sec. 44. The
amendment of RCW 82.23B.010, 82.23B.020, 82.23B.030, and 82.23B.040 by chapter
--, Laws of 1992, (this act) shall not be construed as affecting any existing
right acquired or liability or obligation incurred under the sections or under
any rule or order adopted under the sections, nor as affecting any proceeding
instituted under the sections.
NEW
SECTION. Sec. 45. Section
15 of this act shall apply to vessels beginning May 15, 1991.
NEW
SECTION. Sec. 46. This
act is necessary for the immediate preservation of the public peace, health, or
safety, or support of the state government and its existing public
institutions, and shall take effect immediately, except sections 6, 7, 9, and
10 of this act shall take effect October 1, 1992.
