BILL REQ. #: H-0160.4
State of Washington | 62nd Legislature | 2011 Regular Session |
Read first time 01/14/11. Referred to Committee on Environment.
AN ACT Relating to requirements under the state's oil spill program; amending RCW 88.46.060, 88.46.100, 88.46.090, and 90.48.366; reenacting and amending RCW 88.46.010; adding new sections to chapter 88.46 RCW; creating new sections; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 (1) The legislature finds that the
"deepwater horizon" wellhead blowout, explosion, and oil spill in the
Gulf of Mexico on May 24, 2010, resulted in the release of two hundred
million gallons of crude oil into the environment. Impacts after the
spill have included deaths and injuries, extensive damage to the marine
environment and wildlife habitats, as well as large socioeconomic
damages to local citizens, commercial fishing, tourism, businesses, and
recreation. As late as six months after the spill, four thousand two
hundred square miles of the Gulf of Mexico were closed to commercial
shrimp harvest. The incident in the Gulf of Mexico is a reminder that
the threat of major spills to Washington's environment, natural
resources, economy, quality of life, and private property is
significant.
(2) The legislature further finds that during the fall of 2010 the
department of ecology compiled lessons learned from the Gulf of Mexico
spill and the Puget Sound partnership convened an oil spill work group
in an effort to ensure there is a rapid and aggressive response to a
large scale spill in Washington and that oversight of spills is well
coordinated among different levels of government. These efforts, and
other recent studies, have made clear that the state may be
underprepared for a large scale oil spill of the magnitude possible by
failures of an oil tanker or a tank barge, particularly within the
confined waters of Puget Sound.
(3) The legislature further finds that a large scale oil spill from
an oil tanker or barge could result in the loss of an estimated one
hundred sixty-five thousand jobs and result in ten billion eight
hundred million dollars in economic impacts. Such a spill could
devastate multiple industries in the state, including commercial
fishing, tourism, the shellfish industry, and recreation.
Sec. 2 RCW 88.46.010 and 2009 c 11 s 7 are each reenacted and
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) "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) "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.
(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)(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) "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) "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) "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.
(13) "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.
(14) "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)(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 three hundred or more gross
tons with a fuel capacity of at least six thousand gallons carrying
passengers for compensation.
(17) "Person" means any political subdivision, government agency,
municipality, industry, public or private corporation, copartnership,
association, firm, individual, or any other entity whatsoever.
(18) "Race Rocks light" means the nautical landmark located
southwest of the city of Victoria, British Columbia.
(19) "Severe weather conditions" means observed nautical conditions
with sustained winds measured at forty knots and wave heights measured
between twelve and eighteen feet.
(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) "Strait of Juan de Fuca" means waters off the northern coast
of the Olympic Peninsula seaward of a line drawn from New Dungeness
light in Clallam county to Discovery Island light on Vancouver Island,
British Columbia, Canada.
(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.
(24) "Vessel emergency" means a substantial threat of pollution
originating from a covered vessel, including loss or serious
degradation of propulsion, steering, means of navigation, primary
electrical generating capability, and seakeeping capability.
(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.
(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.
(27) "Vessels of opportunity system" means an oil spill response
system that, before a spill occurs, prepares for the utilization of
commercial fishing vessels and other nondedicated commercial vessels
that are under contract with plan holders to train for spill response
incidents, be adequately equipped to respond to a spill, and to assist
in spill response.
(28) "Volunteer coordination system" means an oil spill response
system that, before a spill occurs, prepares for the utilization of
local emergency management centers or organizations to implement a
system that ensures the efficient and trained use of volunteers to
assist with shoreline protection, wildlife recovery, and other aspects
of a spill response.
NEW SECTION. Sec. 3 A new section is added to chapter 88.46 RCW
to read as follows:
(1) By July 1, 2012, the owner or operator of a tank vessel
transiting to or from a Washington port shall establish and fund a
vessels of opportunity system to supplement the timely and effective
response to spills. The vessels of opportunity system must include the
maintenance of active contracts with a fleet of eligible vessels that
ensures the following:
(a) At least six vessels and crew equipped with best available
technology for booming, storage, and recovery of oil are included in
the system;
(b) The equipment to be utilized is appropriate for the expected
operating environment, including boom and skimming equipment capable of
operating in currents of at least four knots and waves of at least five
feet;
(c) The vessels are equipped with adequate personal protection
gear; and
(d) A minimum of four exercises a year are planned and executed to
ensure that the vessels of opportunity system is maintained at an
appropriate level of readiness.
(2) In addition to meeting requirements specified in RCW 88.46.060,
contingency plans for tank vessels operating in Washington waters must
provide for the organization, contracting, and use of a vessels of
opportunity system as required by this section.
(3) The requirements of this section may be fulfilled by one or
more private organizations or nonprofit corporations providing umbrella
coverage under contract to single or multiple tank vessels. Any
organization or corporation providing umbrella coverage to satisfy the
requirements of this section must ensure that the vessels of
opportunity system being provided includes the establishment of a
minimum of six distinct regional vessels of opportunity response
groups, as is consistent with the planning standards adopted by the
department, that individually satisfy the requirements of a vessels of
opportunity system as provided in this section and that are located
strategically to ensure a timely response in any of Washington's marine
waters or the Columbia river.
(4) In reviewing and approving contingency plans, the department
may determine the adequacy of the vessels of opportunity system through
practice drills that test compliance with this section and award credit
accordingly. Each successful activation of the vessels of opportunity
system may be considered by the department to satisfy a drill covering
this portion of the contingency plan.
NEW SECTION. Sec. 4 A new section is added to chapter 88.46 RCW
to read as follows:
(1) By July 1, 2012, the owner or operator of a tank vessel
transiting to or from a Washington port shall establish and fund a
volunteer coordination system to supplement the timely and effective
response to spills.
(2) In addition to meeting requirements specified in RCW 88.46.060,
contingency plans for tank vessels operating in Washington waters must
provide for the organization, contracting, and use of a volunteer
coordination system as required by this section.
(3) The requirements of this section may be fulfilled by one or
more private organizations or nonprofit corporations providing umbrella
coverage under contract to single or multiple tank vessels.
(4) 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 the
department, the associated local emergency management center or
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.
(5) In reviewing and approving contingency plans, the department
may determine the adequacy of the volunteer coordination system through
practice drills that test compliance with this section and award credit
accordingly. Each successful activation of the volunteer coordination
system may be considered by the department to satisfy a drill covering
this portion of the contingency plan.
NEW SECTION. Sec. 5 A new section is added to chapter 88.46 RCW
to read as follows:
(1) In addition to meeting the requirements specified in this
chapter applicable to all covered vessels, contingency plans for tank
vessels must provide for:
(a) Rapid access to equipment located within the state that
reflects the best available protection; and
(b) Continuous operation of oil spill response activities without
regard to operating environment to the maximum extent practicable and
without unreasonably jeopardizing crew safety.
(2) In reviewing tank vessel contingency plans to measure
compliance with this section, the department shall ensure that, at a
minimum, plans are designed to:
(a) Achieve oil recovery, to the maximum extent practicable and
without unreasonably jeopardizing crew safety, in areas that routinely
experience high currents up to four knots and waves up to five feet;
(b) Provide rapid access to technologies that enhance the ability
of responders to detect and respond to spills in times of low
visibility and at night, including technology that is capable of aerial
oil identification and location mapping; and
(c) Provide adequate capacity for storage or proper disposal of the
volume and type of oil considered by the contingency plan so as to
achieve continuous operation of oil recovery to the maximum extent
practicable.
(3) All contingency plans for tank vessels must be updated by July
1, 2012, to include the requirements of this section and must fully
document the state of the available response equipment and compliance
with the best available protection standard.
NEW SECTION. Sec. 6 A new section is added to chapter 88.46 RCW
to read as follows:
(1) In addition to the authority to order drills otherwise provided
in this chapter, the department is responsible for ordering additional
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 annually.
(2) The additional tank vessel equipment deployment drills must
focus on, at a minimum, the following:
(a) The functional ability for multiple contingency plans to be
simultaneously effectively activated;
(b) The actual probability of response equipment being available
for use in the case of simultaneous spills;
(c) The operational readiness during the first six hours of a spill
and longer into the days and weeks following a large spill.
Sec. 7 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, at least once every four years, 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; and
(p) 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 rule 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) 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 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.
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:))
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. 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.
(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
Sec. 9 RCW 88.46.090 and 2000 c 69 s 9 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)) this
chapter, 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 department 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 director may assess a civil penalty of up to ((one)) three
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 department as required by this chapter and rules adopted by the
department and the department 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
department 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. 10 RCW 90.48.366 and 2007 c 347 s 1 are each amended to read
as follows:
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
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. 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 department of archaeology and historic
preservation; and (g) other areas of special ecological or recreational
importance, as determined by the department; 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.
NEW SECTION. Sec. 11 Any rules the department of ecology deems
necessary for the implementation of this act, if any, must be adopted
by January 1, 2012.