Z-0253

AN ACT Relating to the functions and responsibilities of the office of marine safety; amending RCW 88.46.020, 88.46.030, 88.46.040, 88.46.060, 88.46.070, 88.46.080, and 88.46.090; adding a new section to chapter 88.46 RCW; adding a new section to chapter 43.21I RCW; adding new sections to chapter 90.56 RCW; creating new sections; recodifying RCW 88.46.060, 88.46.062, and 88.46.065; decodifying RCW 88.46.063; repealing RCW 43.21I.020, 88.46.920, 88.46.921, 88.46.922, 88.46.923, 88.46.924, 88.46.925, 88.46.926, and 88.46.927; repealing 1995 2nd sp.s. c 14 s 521 & 1991 c 200 s 1120 (uncodified); repealing 1995 2nd sp.s. c 14 s 522 & 1993 c 281 s 73 (uncodified); repealing 1995 2nd sp.s. c 14 s 524 (uncodified); providing an effective date; and declaring an emergency.

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

Sec. 1. RCW 88.46.020 and 1991 c 200 s 415 are each amended to read as follows:

In carrying out the purposes of this chapter, ((~~including the adoption of rules for contingency plans,~~)) the administrator shall to the greatest extent practicable implement this chapter in a manner consistent with federal law. In exercising authority under this chapter and chapter 43.21I RCW, the administrator may adopt rules, conduct investigations, and establish enforcement procedures that complement federal law or regulation.

Sec. 2. RCW 88.46.030 and 1991 c 200 s 416 are each amended to read as follows:

(1) All tank vessels entering the navigable waters of the state shall be subject to inspection to assure that they comply with all applicable federal and state standards.

(2) ((The office shall review the tank vessel inspection programs conducted by the United States coast guard and other federal agencies to determine if the programs as actually operated by those agencies provide the best achievable protection to the waters of the state. If the office determines that the tank vessel inspection programs conducted by these agencies are not adequate to protect the state's waters, it shall adopt rules for a state tank vessel inspection program. The office shall adopt rules providing for a random review of individual tank vessel inspections conducted by federal agencies.)) The office may accept a tank vessel inspection report issued by another state if that state's tank vessel inspection program is determined by the office to be at least as protective of the public health and the environment as the program adopted by the office.

(3) The state tank vessel inspection program shall ensure that all tank vessels entering state waters are inspected at least annually. ((~~To the maximum extent feasible, the state program shall consist of the monitoring of existing tank vessel inspection programs conducted by the federal government.~~)) The office shall consult with the coast guard regarding the tank vessel inspection program. Any tank vessel inspection conducted pursuant to this section shall be performed during the vessel's scheduled stay in port.

(4) Any violation of coast guard or other federal regulations uncovered during a state tank vessel inspection shall be immediately reported to the appropriate agency.

Sec. 3. RCW 88.46.040 and 1991 c 200 s 417 are each amended to read as follows:

(1) The owner or operator for each tank vessel shall prepare and submit to the office an oil spill prevention plan in conformance with the requirements of this chapter. The plans shall be submitted to the office in the time and manner directed by the office, but not later than January 1, 1993. ((~~The spill prevention plan may be consolidated with a spill contingency plan submitted pursuant to RCW 88.46.060.~~)) The office may accept plans prepared to comply with other state or federal law as spill prevention plans to the extent those plans comply with the requirements of this chapter. The office, by rule, shall establish standards for spill prevention plans. The rules shall be adopted not later than July 1, 1992.

(2) The spill prevention plan for a tank vessel or a fleet of tank vessels operated by the same operator shall:

(a) Establish compliance with the federal oil pollution act of 1990 and state and federal financial responsibility requirements, if applicable;

(b) State all discharges of oil of more than twenty-five barrels from the vessel within the prior five years and what measures have been taken to prevent a reoccurrence;

(c) Describe all accidents, collisions, groundings, and near miss incidents in which the vessel has been involved in the prior five years, analyze the causes, and state the measures that have been taken to prevent a reoccurrence;

(d) Describe the vessel operations with respect to staffing standards;

(e) Describe the vessel inspection program carried out by the owner or operator of the vessel;

(f) Describe the training given to vessel crews with respect to spill prevention;

(g) Establish compliance with federal drug and alcohol programs;

(h) Describe all spill prevention technology that has been incorporated into the vessel;

(i) Describe the procedures used by the vessel owner or operator to ensure English language proficiency of at least one bridge officer while on duty in waters of the state;

(j) Describe relevant prevention measures incorporated in any applicable regional marine spill safety plan that have not been adopted and the reasons for that decision; and

(k) Include any other information reasonably necessary to carry out the purposes of this chapter required by rules adopted by the office.

(3) The office shall only approve a prevention plan if it provides the best achievable protection from damages caused by the discharge of oil into the waters of the state and if it determines that the plan meets the requirements of this section and rules adopted by the office.

(4) Upon approval of a prevention 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.

(5) The approval of a prevention plan shall be valid for five years. An owner or operator of a tank vessel shall notify the office in writing immediately of any significant change of which it is aware affecting its prevention 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 prevention plan as a result of these changes.

(6) The office by rule shall require prevention plans to be reviewed, updated, if necessary, and resubmitted to the office at least once every five years.

(7) Approval of a prevention 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.

(8) This section does not authorize the office to modify the terms of a collective bargaining agreement.

Sec. 4. RCW 88.46.060 and 1995 c 148 s 3 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~~)) department shall by rule adopt and periodically revise standards for the preparation of contingency plans. The ((~~office~~)) 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 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~~)) 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 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, fish and 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~~)) department has adopted rules for contingency plans prior to July 1, 1992, the description of archaeologically sensitive areas shall only be required when the ((~~office~~)) 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) 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~~)) department within six months after the ((~~office~~)) department 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~~)) department within eighteen months after the ((~~office~~)) department has adopted rules under subsection (1) of this section. The ((~~office~~)) department 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 a Washington state nonprofit corporation established for the purpose of oil spill response and contingency plan coverage and of which the owner or operator is a member, shall submit the contingency plan for the tank vessel. Subject to conditions imposed by the ((~~office~~)) department, 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 a Washington state nonprofit corporation established for the purpose of oil spill response and contingency plan coverage and of which the owner or operator is a member. Subject to conditions imposed by the ((~~office~~)) department, 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~~)) department, 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~~)) department may be accepted by the ((~~office~~)) department 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~~)) 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;

(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~~)) 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 ((~~office~~)) department 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~~)) department determines should be included.

(8) An owner or operator of a covered vessel shall notify the ((~~office~~)) 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 ((~~office~~)) department. The ((~~office~~)) department may require the owner or operator to update a contingency plan as a result of these changes.

(9) The ((~~office~~)) department by rule shall require contingency plans to be reviewed, updated, if necessary, and resubmitted to the ((~~office~~)) department at least once every five years.

(10) Approval of a contingency plan by the ((~~office~~)) 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. 5. RCW 88.46.070 and 1992 c 73 s 21 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. 6. RCW 88.46.080 and 1992 c 73 s 22 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. 7. RCW 88.46.090 and 1992 c 73 s 23 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.

NEW SECTION. Sec. 8. A new section is added to chapter 88.46 RCW to read as follows:

By December 1, 1998, the administrator shall report to the legislature on the status of the United States coast guard marine safety and environmental protection programs affecting state waters and the coordination of programs between the coast guard and the office of marine safety.

NEW SECTION. Sec. 9. A new section is added to chapter 43.21I RCW to read as follows:

The executive head and appointing authority of the office shall be the director of marine safety. The director of marine safety shall be appointed by, and serve at the pleasure of, the governor. The director shall be paid a salary to be fixed by the governor in accordance with RCW 43.03.040.

NEW SECTION. Sec. 10. RCW 88.46.060, 88.46.062, and 88.46.065 are each recodified as sections in chapter 90.56 RCW.

NEW SECTION. Sec. 11. RCW 88.46.063 is decodified.

NEW SECTION. Sec. 12. (1) All powers, duties, and functions of the office of marine safety pertaining to contingency planning under RCW 88.46.060 are transferred to the department of ecology.

(2) All employees of the office of marine safety engaged in performing the powers, functions, and duties transferred are transferred to the jurisdiction of the department of ecology. All employees classified under chapter 41.06 RCW, the state civil service law, are assigned to the department of ecology to perform their usual duties upon the same terms as formerly, without any loss of rights, subject to any action that may be appropriate thereafter in accordance with the laws and rules governing state civil service.

(3) All rules and all pending business before the office of marine safety pertaining to the powers, functions, and duties transferred shall be continued and acted upon by the department of ecology. All existing contracts and obligations shall remain in full force and shall be performed by the department of ecology.

(4) The transfer of the powers, duties, functions, and personnel of the office of marine safety shall not affect the validity of any act performed before the effective date of this section.

(5) If apportionments of budgeted funds are required because of the transfers directed by this section, the director of financial management shall certify the apportionments to the agencies affected, the state auditor, and the state treasurer. Each of these shall make the appropriate transfer and adjustments in funds and appropriation accounts and equipment records in accordance with the certification.

(6) Nothing contained in this section may be construed to alter any existing collective bargaining unit or the provisions of any existing collective bargaining agreement until the agreement has expired or until the bargaining unit has been modified by action of the personnel board as provided by law.

NEW SECTION. Sec. 13. The 1995 legislature enacted the biennial transportation budget for the 1995-1997 biennium with provisions transferring the functions of the office of marine safety to the department of ecology effective January 1, 1996. Although the budget bill was effective July 1, 1995, a subsequent decision by the Thurston county superior court found the transfer provisions in violation of Article II, section 19 of the state Constitution and therefore invalid. People for Puget Sound v. Department of Ecology, No. 95-2-02622-0. The decision was not appealed.

The legislature finds that the effect of a superior court's decision on a budget bill that became law on July 1, 1995, has caused confusion. The legislature also finds that for clarity, the provisions declared unconstitutional should be repealed.

Therefore, the legislature declares the intent of section 14 of this act to be twofold: First, to repeal the unconstitutional provisions of chapter 14, Laws of 1995 2nd sp. sess. to remove confusion over the effect of the decision by the Thurston county superior court; and second, to repeal the sections of chapter 200, Laws of 1991 that transfer the functions of the office of marine safety to the department of ecology.

NEW SECTION. Sec. 14. The following acts or parts of acts are each repealed:

(1) 1995 2nd sp.s. c 14 s 521 & 1991 c 200 s 1120 (uncodified);

(2) 1995 2nd sp.s. c 14 s 522 & 1993 c 281 s 73 (uncodified);

(3) 1995 2nd sp.s. c 14 s 524 (uncodified);

(4) RCW 43.21I.020 and 1992 c 73 s 5 & 1991 c 200 s 403;

(5) RCW 88.46.920 and 1991 c 200 s 429;

(6) RCW 88.46.921 and 1991 c 200 s 430;

(7) RCW 88.46.922 and 1995 2nd sp.s. c 14 s 518 & 1991 c 200 s 431;

(8) RCW 88.46.923 and 1991 c 200 s 432;

(9) RCW 88.46.924 and 1991 c 200 s 433;

(10) RCW 88.46.925 and 1995 2nd sp.s. c 14 s 519 & 1991 c 200 s 434;

(11) RCW 88.46.926 and 1991 c 200 s 435; and

(12) RCW 88.46.927 and 1993 c 281 s 67 & 1991 c 200 s 436.

NEW SECTION. Sec. 15. 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 takes effect July 1, 1997.

NEW SECTION. Sec. 16. 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.