READ FIRST TIME 02/23/09.   

     AN ACT Relating to providing an emergency response system for the Strait of Juan de Fuca; amending RCW 88.46.130, 88.46.010, and 90.56.500; adding new sections to chapter 88.46 RCW; creating new sections; and providing expiration dates.

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

NEW SECTION.  Sec. 1   (1) The legislature finds that the Olympic Peninsula is bounded on the west and north by uniquely rich and highly vulnerable biological, cultural, and marine resources supporting some of the nation's most valuable tribal, commercial, and sport fisheries. The area also sustains endangered species and numerous species of vulnerable marine mammals. The area's national significance is recognized by special federal designations including a national park, a national marine sanctuary, a maritime area to be avoided, national wildlife refuges, a world heritage site, as well as tribal lands and usual and accustomed fishing areas of federally recognized coastal Indian tribes. This remote area periodically experiences severe coastal storms, dangerous seas, strong coastal currents, and frequent fog placing economically valuable maritime commerce and ship crews at risk.
     (2) The legislature further finds that these peculiarities of the local waters require special protection from the serious threat posed by maritime casualties. The area's natural, cultural, and economic resources must be provided with the best achievable protection from damages caused by the discharge of oil into coastal waters.
     (3) The legislature further finds that the state of Washington has maintained an emergency response tug at Neah Bay since 1999 to protect its waters from maritime casualties and resultant oil spills. During that time it has demonstrated its capability by responding to forty-one ships in need of assistance in the area from Port Angeles to the Columbia river. State funding is scheduled to end June 30, 2009. The legislature intends for the maritime industry to provide and fully fund a year-round emergency response tug at Neah Bay, including the logistical and operational management support system. This emergency response towing vessel and its operations should meet or exceed the state's fiscal year 2009 technical contract specifications of the contracted Neah Bay emergency response towing vessel.

Sec. 2   RCW 88.46.130 and 1991 c 200 s 426 are each amended to read as follows:
     (1) An emergency response system for vessels operating in the entry of the Strait of Juan de Fuca shall be established and operated consistent with this section by July 1, ((1992)) 2010. ((In establishing the emergency response system, the administrator shall consider the recommendations of the regional marine safety committees. The administrator shall also consult with the province of British Columbia regarding its participation in the emergency response system.))
     (2)(a) Except as otherwise provided in this section, and in addition to the contingency plan requirements adopted by the department under RCW 88.46.060, contingency plans for all covered vessels while operating in all waters of the entry to the Strait of Juan de Fuca north of the Clallam county shoreline and east of Duncan rock must provide for the emergency response system described in this section, including the management and operation of an emergency response towing vessel that satisfies the planning standards in section 3 of this act.
     (b) Owners and operators of covered vessels that operate in the portion of the entry to the Strait of Juan de Fuca identified in this subsection shall submit an addendum to their oil spill contingency plan demonstrating compliance with this section by January 1, 2010. A vessel submitting an initial contingency plan after January 1, 2010, must provide documentation of its compliance with this section concurrent with the submittal of its contingency plan.
     (c) The department shall review all submittals demonstrating compliance with this section and shall approve any submittal that meets the intent and planning standards established in section 3 of this act.
     (3) Full implementation of section 3 of this act, or implementation of a system of protective measures imposed or required by the federal government that are determined by the department to be substantially equivalent to those requirements, satisfies the emergency response system required by this section.
     (4) The director may suspend the requirement for an emergency response towing vessel created in this section if the director determines that an emergency response towing vessel satisfying the requirements of section 3 of this act is not available to provide the services required under this section.

NEW SECTION.  Sec. 3   A new section is added to chapter 88.46 RCW to read as follows:
     (1) An emergency response towing vessel that is a part of the emergency response system required by RCW 88.46.130 must be stationed at Neah Bay and be continuously capable and available to respond to any vessel emergency. The towing vessel must, at a minimum, be able to satisfy the following planning standards:
     (a) Be underway within twenty minutes of a decision to deploy;
     (b) Be able to deploy at any hour of any day to provide emergency assistance and be safely manned to remain underway for at least forty-eight hours;
     (c) In severe weather conditions, be capable of making up to, stopping, holding, and towing a drifting or disabled vessel of one hundred eighty thousand metric dead weight tons;
     (d) In severe weather conditions, be capable of holding position within one hundred feet of another vessel;
     (e) Be equipped with and maneuverable enough to effectively employ a ship anchor chain recovery hook and line throwing gun;
     (f) Be capable of a bollard pull of at least seventy short tons; and
     (g) Be equipped with appropriate equipment for:
     (i) Damage control patching;
     (ii) Vessel dewatering;
     (iii) Air safety monitoring; and
     (iv) Digital photography.
     (2) The requirements of this section may be fulfilled by one or more private organizations or nonprofit cooperatives providing umbrella coverage under contract to single or multiple covered vessels.
     (3)(a) The department must be authorized to contract with the emergency response towing vessel, at the discretion of the department, in response to a potentially emerging maritime casualty or as a precautionary measure during severe storms. All instances of use by the department must be paid for by the department.
     (b) Covered vessels that are required to provide an emergency response towing vessel under RCW 88.46.130 may not restrict the emergency response towing vessel from responding to distressed vessels that are not covered vessels.
     (4) Nothing in this section limits the ability of a covered vessel to contract with an emergency response towing vessel with capabilities that exceed the minimum capabilities provided for a towing vessel in this section.
     (5) The covered vessel owner or operator shall submit a written report to the department as soon as practicable regarding an emergency response system deployment, including photographic documentation determined by the department to be of adequate quality. The report must provide a detailed description of the incident necessitating a response and the actions taken to render assistance under the emergency response system.

NEW SECTION.  Sec. 4   A new section is added to chapter 88.46 RCW to read as follows:
     (1) It is the intent of the legislature to provide the various components of the maritime industry with the tools necessary to satisfy the requirements of RCW 88.46.130 in the most cost-effective manner. In doing, the legislature encourages, but does not mandate, the maritime industry to unite behind their mutual interests and responsibilities and identify or form a single umbrella organization that allows all affected covered vessels to equitably share the costs inherent in the implementation of RCW 88.46.130.
     (2) The legislature further finds that an equitable sharing of the costs of implementing RCW 88.46.130 may mean that not all covered vessels will be responsible for providing the same amount of funding. Any umbrella organization that is identified or formed to satisfy the requirements of this act should consider the multitude of factors that comprise the risk of oil spills and the likelihood of initiating a response from the emergency response vessel required by RCW 88.46.130, including the number of transits made by the covered vessel, the nature and quantity of its cargo, and the technical sophistication of its design, safety updates, and maintenance.
     (3) The legislature intends to provide the authority for any operator of a covered vessel that feels as though an umbrella organization that is identified, formed, or proposed for formation does not equitably share the costs of compliance with RCW 88.46.130 with the covered vessel in question, or the class of vessel to which the covered vessel belongs, to either contract directly with an adequate emergency response vessel or form or join a discreet umbrella organization representing the appropriate segment of the maritime industry. However, if the operator of a covered vessel chooses not to join a proposed or existing umbrella organization, or finds that negotiations leading to the formation of an umbrella organization are not progressing in an adequate manner, the legislature requests, but does not require, that the vessel operator contact the department and provide official notice of their concern as to how the umbrella group in question failed in establishing an equitable cost-share strategy.
     (4) The department shall collect and maintain all notices received under this section and shall summarize any reports received by the operators of covered vessels and report the summation to the appropriate committees of the legislature upon request by a legislative committee.

NEW SECTION.  Sec. 5   (1) Designated representatives of the owners and operators of all classes of covered vessels shall negotiate, given the intent of section 4 of this act, a system to determine the equitable apportionment of costs of the emergency response system required by this act.
     (2) Participants to the negotiations shall report the results to the appropriate committees of the legislature by December 1, 2009. This report shall provide available information relating to:
     (a) The anticipated average annual cost of providing the emergency response system required by this act;
     (b) The methodology for determining the annual cost for each vessel of complying with this act, including a system for crediting enhanced navigational or structural characteristics, and any caps or limitations on total cost for vessels that frequently transit the waters identified in this act; and
     (c) The anticipated average annual cost of complying with this act for each of the following class of covered vessels:
     (i) Oil tankers;
     (ii) Tank barges;
     (iii) Tug and oil barge combinations;
     (iv) Nontank vessels, including cruise ships;
     (v) Other covered vessels.
     (3) If the representatives designated under this section to participate in negotiations fail to achieve the goals of this section or otherwise choose not to report the outcomes to the legislature, the department of ecology shall, by December 1, 2009, deliver the summation of any reports received under section 4 of this act.
     (4) This section expires June 30, 2010.

NEW SECTION.  Sec. 6   A new section is added to chapter 88.46 RCW to read as follows:
     (1) In addition to reviewing contingency plans submitted under RCW 88.46.130, the department may determine the adequacy of the emergency response system required in RCW 88.46.130 through practice drills that test the adequacy of the responding entity's capabilities and satisfaction of the requirements of section 3 of this act. Practice drills may be conducted without prior notice.
     (2) Each successful response to a vessel emergency may be considered by the department to satisfy a drill covering this portion of a covered vessel's contingency plan.
     (3) Drills of the emergency response system required in RCW 88.46.130 must emphasize the system's ability to respond to a potentially worst case vessel emergency scenario.

Sec. 7   RCW 88.46.010 and 2007 c 347 s 5 are each amended to read as follows:
     The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "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.
     (2) "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.
     (3) "Cargo vessel" means a self-propelled ship in commerce, other than a tank vessel or a passenger vessel, of three hundred or more gross tons, including but not limited to, commercial fish processing vessels and freighters.
     (4) "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.
     (5) "Covered vessel" means a tank vessel, cargo vessel, or passenger vessel.
     (6) "Department" means the department of ecology.
     (7) "Director" means the director of the department of ecology.
     (8) "Discharge" means any spilling, leaking, pumping, pouring, emitting, emptying, or dumping.
     (9) "Duncan rock" means the nautical landmark located northwest of Tatoosh Island in Clallam county marking the entrance to the Strait of Juan de Fuca.
     (10) "Entry to the Strait of Juan de Fuca" means that portion of the Strait of Juan de Fuca seaward of a line drawn from New Dungeness light in Clallam county to Discovery Island light on Vancouver Island, British Columbia, Canada, and including the Washington portion of the approach area to the Strait of Juan de Fuca from Cape Flattery light in Clallam county southward to North Head light in Pacific county near the mouth of the Columbia river.
     (11)(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) 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.
     (((10))) (12) "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.
     (((11))) (13) "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.
     (((12))) (14) "Oil" or "oils" means oil of any kind that is liquid at atmospheric temperature and any fractionation thereof, including, but not limited to, crude oil, petroleum, gasoline, fuel oil, diesel oil, biological oils and blends, oil sludge, oil refuse, and oil mixed with wastes other than dredged spoil. Oil does not include any substance listed in Table 302.4 of 40 C.F.R. Part 302 adopted August 14, 1989, under section 101(14) of the federal comprehensive environmental response, compensation, and liability act of 1980, as amended by P.L. 99-499.
     (((13))) (15) "Offshore facility" means any facility 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.
     (((14))) (16) "Onshore facility" means any facility 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))) (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.
     (((16))) (18) "Passenger vessel" means a ship of three hundred or more gross tons with a fuel capacity of at least six thousand gallons carrying passengers for compensation.
     (((17))) (19) "Person" means any political subdivision, government agency, municipality, industry, public or private corporation, copartnership, association, firm, individual, or any other entity whatsoever.
     (((18))) (20) "Severe weather conditions" means observed nautical conditions with sustained winds measured at forty knots and wave heights measured between twelve and eighteen feet.
     (21) "Ship" means any boat, ship, vessel, barge, or other floating craft of any kind.
     (((19))) (22) "Spill" means an unauthorized discharge of oil into the waters of the state.
     (((20))) (23) "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.
     (((21))) (24) "Vessel emergency" includes:
     (a) A substantial threat of pollution originating from a covered vessel including, but not limited to, loss or serious degradation of propulsion, steering, means of navigation, primary electrical generating capability, and seakeeping capability;
     (b) Hull breach; or
     (c) Oil spill.
     (25) "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.
     (((22))) (26) "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. 8   RCW 90.56.500 and 1991 c 200 s 805 are each amended to read as follows:
     (1) The state oil spill response account is created in the state treasury. All receipts from RCW 82.23B.020(1) shall be deposited in the account. All costs reimbursed to the state by a responsible party or any other person for responding to a spill of oil shall also be deposited in the account. Moneys in the account shall be spent only after appropriation. The account is subject to allotment procedures under chapter 43.88 RCW.
     (2) The account shall be used exclusively to pay for:
     (a) The costs associated with the response to spills of crude oil or petroleum products into the navigable waters of the state; and
     (b) The costs associated with the department's use of the emergency response towing vessel as described in section 3 of this act.
     (3) Payment of response costs under subsection (2)(a) of this section shall be limited to spills which the director has determined are likely to exceed fifty thousand dollars. Before expending moneys from the account, the director shall make reasonable efforts to obtain funding for response costs from the person responsible for the spill and from other sources, including the federal government.
     (4) Reimbursement for response costs shall be allowed only for costs which are not covered by funds appropriated to the agencies responsible for response activities. Costs associated with the response to spills of crude oil or petroleum products shall include:
     (((1))) (a) Natural resource damage assessment and related activities;
     (((2))) (b) Spill related response, containment, wildlife rescue, cleanup, disposal, and associated costs;
     (((3))) (c) Interagency coordination and public information related to a response; and
     (((4))) (d) Appropriate travel, goods and services, contracts, and equipment.

NEW SECTION.  Sec. 9   (1) The director of the department of ecology, or the director's designee, shall initiate discussions with the director's equivalent position in the government for the Canadian province of British Columbia to explore options for Washington and British Columbia to share the marine response assets required under this act.
     (2) Any progress or outcomes from the discussions initiated under this section must be reported to the appropriate committees of the legislature no later than January 1, 2011.
     (3) This section expires July 31, 2011.