1186-S2.E AMS RANK WILB 002
E2SHB 1186 - S AMD to WM COMM AMD (S-2644.1/11) 264
By Senators Ranker, Kastama, Tom, Hargrove, Hatfield, Ericksen, Litzow, Hobbs, Swecker, Schoesler, Fain
ADOPTED 04/05/2011
Beginning on page 1, after line 2 of the amendment, strike all of section 1
Renumber the remaining sections and correct any internal references accordingly.
Beginning on page 5, line 35 of the amendment, strike all of sections 3 through 15 and insert the following:
"NEW SECTION. Sec. 2. A new section is added to chapter 88.46 RCW to read as follows:
(1) The department shall evaluate and update planning standards for oil spill response equipment required under contingency plans required by this chapter, including aerial surveillance, in order to ensure access in the state to equipment that represents the best achievable protection to respond to a worst case spill and provide for continuous operation of oil spill response activities to the maximum extent practicable and without jeopardizing crew safety, as determined by the incident commander or the unified command.
(2) The department shall by rule update the planning standards at five-year intervals to ensure the maintenance of best available protection over time. Rule updates to covered non-tank vessels shall minimize potential impacts to discretionary cargo moved through the state.
(3) The department shall evaluate and update planning standards for tank vessels by December 31, 2012.
NEW SECTION. Sec. 3. A new section is added to chapter 88.46 RCW to read as follows:
By December 31, 2012, the department shall complete rule making for purposes of improving the effectiveness of the vessels of opportunity system to participate in spill response.
NEW SECTION. Sec. 4. A new section is added to chapter 88.46 RCW to read as follows:
(1) The department shall establish a volunteer coordination system. The volunteer coordination system may be included as a part of the state's overall oil spill response strategy, and may be implemented by local emergency management organizations, in coordination with any analogous federal efforts, to supplement the state's timely and effective response to spills.
(2) The department should consider how the volunteer coordination system will:
(a) Coordinate with the incident commander or unified command of an oil spill and any affected local governments to receive, screen, and register volunteers who are not affiliated with the emergency management organization or a local nongovernmental organization;
(b) Coordinate the management of volunteers with local nongovernmental organizations and their affiliated volunteers;
(c) Coordinate appropriate response operations with different classes of volunteers, including pretrained volunteers and convergent volunteers, to fulfill requests by the department or an oil spill incident commander or unified command;
(d) Coordinate public outreach regarding the need for and use of volunteers;
(e) Determine minimum participation criteria for volunteers; and
(f) Identify volunteer training requirements and, if applicable, provide training opportunities for volunteers prior to an oil spill response incident.
(3) An act or omission by any volunteer participating in a spill response or training as part of a volunteer coordination system, while engaged in such activities, does not impose any liability on any state agency, any participating local emergency management organization, or the volunteer for civil damages resulting from the act or omission. However, the immunity provided under this subsection does not apply to an act or omission that constitutes gross negligence or willful or wanton misconduct.
(4) The decisions to utilize volunteers in an oil spill response, which volunteers to utilize, and to determine which response activities are appropriate for volunteer participation in any given response are the sole responsibilities of the designated incident commander or unified command.
NEW SECTION. Sec. 5. A new section is added to chapter 88.46 RCW to read as follows:
(1) The department is responsible for requiring joint large-scale, multiple plan equipment deployment drills of tank vessels to determine the adequacy of the owner's or operator's compliance with the contingency plan requirements of this chapter. The department must order at least one drill as outlined in this section every three years.
(2) Drills required under this section must focus on, at a minimum, the following:
(a) The functional ability for multiple contingency plans to be simultaneously activated with the purpose of testing the ability for dedicated equipment and trained personnel cited in multiple contingency plans to be activated in a large scale spill; and
(b) The operational readiness during both the first six hours of a spill and, at the department's discretion, over multiple operational periods of response.
(3) Drills required under this section may be incorporated into other drill requirements under this chapter to avoid increasing the number of drills and equipment deployments otherwise required.
(4) Each successful drill conducted under this section may be considered by the department as a drill of the underlying contingency plan and credit may be awarded to the plan holder accordingly.
(5) The department shall, when practicable, coordinate with applicable federal agencies, the state of Oregon, and the province of British Columbia to establish a drill incident command and to help ensure that lessons learned from the drills are evaluated with the goal of improving the underlying contingency plans.
Sec. 6. RCW 88.46.060 and 2005 c 78 s 2 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, shellfish beds, 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 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 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 consistent with this chapter 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, shellfish beds,
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. 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, shellfish, 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 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;
(p) Compliance with section 7 of this act if the contingency plan is
submitted by an umbrella plan holder; and
(q) Include any additional elements of contingency plans as required by
this chapter.
(2)(((a))) The owner or operator of a ((tank))
covered vessel ((of three thousand gross tons or more shall)) must
submit ((a)) any required contingency plan updates to the
department within ((six months after)) the timelines established by
the 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 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 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 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 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 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 department may be accepted by the department as a contingency plan under this section. The department shall ensure 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, shellfish beds, 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)(a) 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.
(b) The department must notify the plan holder in writing within sixty-five days of an initial or amended plan's submittal to the department as to whether the plan is disapproved, approved, or conditionally approved. If a plan is conditionally approved, the department must clearly describe each condition and specify a schedule for plan holders to submit required updates.
(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 vessels covered by the plan, and other information the department determines should be included.
(8) An owner or operator of a covered vessel 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.
NEW SECTION. Sec. 7. A new section is added to chapter 88.46 RCW to read as follows:
(1) When submitting a contingency plan to the department
under RCW
88.46.060, any umbrella plan holder that enrolls both tank vessels and
covered vessels that are not tank vessels must, in addition to
satisfying the other requirements of this chapter, specify:
(a) The maximum worst case discharge volume from covered vessels
that are not tank vessels to be covered by the umbrella plan holder's
contingency plan; and
(b) The maximum worst case discharge volume from tank vessels to be
covered by the umbrella plan holder's contingency plan.
(2) Any owner or operator of a covered vessel having a worst case
discharge volume that exceeds the maximum volume covered by an approved
umbrella plan holder may enroll with the umbrella plan holder if the
owner or operator of the covered vessel maintains an agreement with
another entity to provide supplemental equipment sufficient to meet the
requirements of this chapter.
(3) The department must approve an umbrella plan holder that covers vessels
having a worst case discharge volume that exceeds the maximum volume if:
(a) The department determines that the umbrella plan holder should be approved
for a lower discharge volume;
(b) The vessel owner or operator provides documentation to the umbrella plan
holder authorizing the umbrella plan holder to activate additional resources
sufficient to meet the worst case discharge volume of the vessel; and
(c) The department has previously approved a plan that provides access to the
same resources identified in (3)(b) to meet the requirements of this chapter
for worst case discharge volumes equal to or greater than the worst case
discharge volume of the vessel.
(4) The umbrella plan holder must describe in the plan how the activation of
additional resources will be implemented and provide the department the ability
to review and inspect any documentation that the umbrella plan holder relies on
to enroll a vessel with a worst case discharge that exceeds the plan’s maximum
volume.
Sec. 8. RCW 88.46.100 and 2000 c 69 s 10 are each amended to read as follows:
(((1))) In ((order to assist the state in
identifying areas of the navigable waters of the state needing special
attention, the owner or operator of a covered vessel shall notify the)) addition
to any notifications that the owner or operator of a covered vessel must
provide to the United States coast guard ((within one hour:
(a) Of the disability of the covered vessel if the disabled vessel is
within twelve miles of the shore of the state; and
(b) Of a collision or a near miss incident within twelve miles of the
shore of the state.
(2) The state military department and the department shall request the
coast guard to notify the state military department as soon as possible after
the coast guard receives notice of a disabled covered vessel or of a collision
or near miss incident within twelve miles of the shore of the state. The
department shall negotiate an agreement with the coast guard governing
procedures for coast guard notification to the state regarding disabled covered
vessels and collisions and near miss incidents.
(3) The department shall prepare a summary of the information collected
under this section and provide the summary to the regional marine safety
committees, the coast guard, and others in order to identify problems with the
marine transportation system.
(4) For the purposes of this section:
(a) A tank vessel or cargo vessel is considered disabled if any of the
following occur:
(i) Any accidental or intentional grounding;
(ii) The total or partial failure of the main propulsion or primary
steering or any component or control system that causes a reduction in the
maneuvering capabilities of the vessel;
(iii) An occurrence materially and adversely affecting the vessel's
seaworthiness or fitness for service, including but not limited to, fire,
flooding, or collision with another vessel;
(iv) Any other occurrence that creates the serious possibility of an oil
spill or an occurrence that may result in such a spill.
(b) A barge is considered disabled if any of the following occur:
(i) The towing mechanism becomes disabled;
(ii) The towboat towing the barge becomes disabled through occurrences
defined in (a) of this subsection.
(c) A near miss incident is an incident that requires the pilot or
master of a covered vessel to take evasive actions or make significant course
corrections in order to avoid a collision with another ship or to avoid a
grounding as required by the international rules of the road.
(5) Failure of any person to make a report under this section shall not
be used as the basis for the imposition of any fine or penalty)) regarding
a vessel emergency, the owner or operator of a covered vessel must notify the
state of any vessel emergency that results in the discharge or substantial
threat of discharge of oil to state waters or that may affect the natural
resources of the state within one hour of the onset of that emergency. The
purpose of this notification is to enable the department to coordinate with the
vessel operator, contingency plan holder, and the United States coast guard to
protect the public health, welfare, and natural resources of the state and to
ensure all reasonable spill preparedness and response measures are in place
prior to a spill occurring.
Sec. 9. RCW 90.48.366 and 2007 c 347 s 1 are each amended to read as follows:
(1) The department, in consultation with the
departments of fish and 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 amount of compensation assessed under this schedule shall be:
(a) For spills totaling one thousand gallons or more in any one event,
no less than ((one dollar)) three dollars per gallon of oil
spilled and no greater than ((one)) three hundred dollars per
gallon of oil spilled; and
(b) For spills totaling less than one thousand gallons in any one event,
no less than one dollar per gallon of oil spilled and no greater than one
hundred dollars per gallon of oil spilled.
(2) Persistent oil recovered from the surface of the
water within forty-eight hours of a discharge must be deducted from the total
spill volume for purposes of determining the amount of compensation assessed
under the compensation schedule.
(3) The compensation schedule adopted under this section
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))) (a) 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))) (b) The sensitivity of the
affected area as determined by such factors as:
(((a))) (i) The location of the spill;
(((b))) (ii) Habitat and living resource
sensitivity;
(((c))) (iii) Seasonal distribution or
sensitivity of living resources;
(((d))) (iv) Areas of recreational use or
aesthetic importance;
(((e))) (v) 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))) (vi) Significant archaeological
resources as determined by the department of archaeology and historic
preservation; and
(((g))) (vii) Other areas of special
ecological or recreational importance, as determined by the department; and
(((3))) (c) Actions taken by the party who
spilled oil or any party liable for the spill that:
(((a))) (i) 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))) (ii) 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. 10. RCW 90.56.370 and 2000 c 69 s 21 are each amended to read as follows:
(1) Any person owning oil or having control over oil that enters the waters of the state in violation of RCW 90.56.320 shall be strictly liable, without regard to fault, for the damages to persons or property, public or private, caused by such entry.
(2) Damages for which responsible parties are liable
under this section include loss of income, net revenue, the means of producing
income or revenue, or an economic benefit resulting from an injury to or loss
of real or personal property or natural resources.
(3) Damages for which responsible parties are liable under this section
include damages provided in subsections (1) and (2) of this section resulting
from the use and deployment of chemical dispersants or from in situ burning in
response to a violation of RCW 90.56.320.
(4) In any action to recover damages resulting from the discharge of
oil in violation of RCW 90.56.320, the owner or person having control over the
oil shall be relieved from strict liability, without regard to fault, if that
person can prove that the discharge was caused solely by:
(a) An act of war or sabotage;
(b) An act of God;
(c) Negligence on the part of the United States government; or
(d) Negligence on the part of the state of Washington.
(((3))) (5) The liability established in
this section shall in no way affect the rights which: (a) The owner or other
person having control over the oil may have against any person whose acts may
in any way have caused or contributed to the discharge of oil, or (b) the state
of Washington may have against any person whose actions may have caused or
contributed to the discharge of oil.
NEW SECTION. Sec. 11. (1) The director of the department of ecology must formally request that the federal government contribute to the establishment of regional oil spill response equipment caches in Washington to ensure adequate response capabilities during a multiple spill event.
(2) This section expires December 31, 2014."
E2SHB 1186 - S COMM AMD TO WM COMM AMD (S-2644.1/11)
By Senators Ranker, Kastama, Tom, Hargrove, Hatfield, Ericksen, Litzow, Hobbs, Swecker, Schoesler, Fain
ADOPTED 04/05/2011
On page 23, beginning on line 2 of the title amendment, after "insert" strike the remainder of the title amendment and insert "amending RCW 88.46.060, 88.46.100, 90.48.366, and 90.56.370; reenacting and amending RCW 88.46.010; adding new sections to chapter 88.46 RCW; creating a new section; prescribing penalties; and providing an expiration date."
Effect of Amendment:
· Replaces specific response equipment requirements for tank vessels contingency plans with direction that DOE evaluate and update contingency planning standards for response equipment, including aerial surveillance. DOE must update planning standards at five year intervals. Planning standards for tank vessels must be updated by December 31, 2012.
· Replaces specific vessels of opportunity requirements for tank vessels with direction that DOE adopt rules to improve the effectiveness of the vessels of opportunity system. The rules must be completed by December 31, 2012.
· Specifies that a covered vessel with a worst case discharge volume exceeding the maximum volume covered by an umbrella plan may utilize the umbrella plan if the vessel maintains an agreement with another entity to provide supplemental equipment.
· Specifies that only persistent oil recovered in the first 48 hours of a spill is deducted from the natural resources damage assessment calculation.
· Provides that economic damages for which a responsible party is strictly liable includes lost net revenue instead of lost revenue.
· Narrows the scope of damages for which a response party is strictly liable from damages resulting from "any action conducted in response to a violation" to damages resulting from "the use and deployment of chemical dispersants or from in situ burning".
· Removes a DOE reporting requirement to include recommendations for changes in the state's oil spill preparation and response policies.
· Removes caps on implementation costs for the vessels of opportunity and response equipment requirements.
· Removes the intent section.
· Makes technical changes.
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