BILL REQ. #: H-4187.1
| State of Washington | 63rd Legislature | 2014 Regular Session |
READ FIRST TIME 02/11/14.
AN ACT Relating to enhancing the safety of the transportation of oil; amending RCW 88.16.035, 88.16.170, 88.16.190, 88.16.200, 90.56.010, 43.21B.110, and 43.21B.110; adding new sections to chapter 90.56 RCW; adding new sections to chapter 88.16 RCW; creating new sections; prescribing penalties; providing an effective date; providing expiration dates; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 The legislature finds that oil
transportation by train and vessel poses a potential hazard to the
health and well-being of Washington residents and the natural resources
and economic vitality of the state. Recent accidents, such as the oil
train explosions in North Dakota, Alabama, New Brunswick, and Quebec,
as well as the frequent incidence of leaks and spills from pipelines,
railcars, and vessels carrying oil across the nation, highlight the
risks to human health and the environment caused by the transportation
of oil. Furthermore, as the location and type of oil extracted in
North America changes with the advent of new technology, there are
associated changes in the patterns and methods of transporting crude
oil and refined petroleum products. According to the United States
department of transportation, the new types of oil being transported
through the state may also be particularly flammable and dangerous.
Measures to prevent spills from oil trains and tank vessels are
critical to lowering risks to the state's natural resources and
economic base. It is therefore the intent and purpose of this act to
establish appropriate measures to reduce the risk of oil spills from
vessels, to encourage the adoption of spill prevention measures, to
ensure that the public has access to information about the movement of
oil through the state, and to ensure that communities are fully
informed about any risks posed to their safety by the transportation of
oil.
NEW SECTION. Sec. 2 A new section is added to chapter 90.56 RCW
to read as follows:
The department shall make available on its web site a quarterly
report on the maritime and terrestrial transportation of oil in
Washington. The report must include information including, but not
limited to, the following sources:
(1) Information submitted to the department pursuant to section 3
of this act;
(2) Advanced notices of transfer and other information provided to
the department pursuant to RCW 88.46.165, including aggregated
information on the quantities and types of oil being transferred, the
frequency and duration of oil transfers, and the locations of product
transfers;
(3) Reported information on spills, accidents, discharges, or other
prohibited occurrences submitted to the department pursuant to RCW
90.56.050(1), 90.56.280, or 88.46.100; and
(4) Relevant information about the volume and type of oil
transported through Washington that is collected by federal agencies
including the United States department of transportation, United States
coast guard, United States department of energy, and United States army
corps of engineers.
NEW SECTION. Sec. 3 A new section is added to chapter 90.56 RCW
to read as follows:
(1) The owner or operator for each facility other than a
transmission pipeline shall submit to the department the following
information:
(a) The number of tank vessels and railcars that transferred or
delivered oil at the facility each week;
(b) The volume and type of oil that arrived at and departed from
the facility each week, including the volume and type of oil:
(i) By mode of arrival at the facility, including but not limited
to arrival by vessel, rail, pipeline, or motor vehicle;
(ii) By mode of departure from the facility, including but not
limited to departure by vessel, rail, pipeline, or motor vehicle;
(c) The route taken by any oil that arrived at the facility by
railcar.
(2) Beginning November 1, 2014, the owner or operator of each
facility must submit the information required pursuant to subsection
(1) of this section by February 1st, May 1st, August 1st, and November
1st of each year and each quarterly submission must include the
information in subsection (1) of this section for each week of the
quarter covered by the submission. The department may develop a
reporting form and guidance for the submission of the information in
subsection (1) of this section by facility owners or operators. To the
extent feasible, the department must integrate the reporting form with
other forms used by facilities to submit information to the department,
including forms used to submit the information required by RCW
88.46.165.
(3)(a) Prior to making any confidential information submitted
pursuant to this section available on its web site, the department must
aggregate the submitted information to the extent necessary to ensure
confidentiality if public disclosure of the specific information or
data would result in an unfair competitive disadvantage to the owner or
operator submitting the information.
(b) The department may not make publicly available specific
information about the volume of oil or the number of vessels or
railcars that arrive at or depart from individual facilities. Instead,
information about facility-specific arrivals and departures of oil must
be aggregated prior to disclosure in order to prevent unfair
competitive disadvantage to the owner or operator submitting the
information.
NEW SECTION. Sec. 4 (1) Washington State University shall
consult with the department of ecology and the emergency management
division of the military department to conduct a study regarding the
state's capacity to respond to and recover from accidents involving
railcars transporting oil. In conducting this study, Washington State
University shall consider the potential near-term increase in the
volume of oil being transported via rail through Washington as a result
of proposed new or expanded oil refining and storage facilities.
Washington State University shall seek the input of relevant
stakeholders and other state agencies in carrying out this study.
(2) The study required under subsection (1) of this section must:
(a) Examine the current and projected prevalence of oil
transportation by railcar through Washington communities;
(b) Make a preliminary identification of the communities at the
greatest risk of an accident involving oil transportation by railcar;
(c) Examine, generally, the extent to which state and local
emergency plans, oil spill contingency plans developed pursuant to
chapter 90.56 RCW, and geographic response plans address this threat;
(d) Examine the roles and responsibilities of federal, state,
local, and tribal entities in preparing for emergencies or oil spills;
(e) Determine whether adequate resources are available to respond
to and recover from such an accident in a timely and effective manner;
and
(f) Address the potential impacts to transportation networks and
other critical infrastructure from an accident involving oil
transported by railcar.
(3) Washington State University shall report its findings from the
study to the appropriate committees of the legislature by December 1,
2014.
(4) This section expires June 30, 2015.
Sec. 5 RCW 88.16.035 and 2009 c 496 s 1 are each amended to read
as follows:
(1) The board of pilotage commissioners shall:
(a) Adopt rules, pursuant to chapter 34.05 RCW, necessary for the
enforcement and administration of this chapter, except for rules
adopted after July 1, 2014, that implement RCW 88.16.190, 88.16.195,
88.16.200, and section 12 of this act, for which the department of
ecology may adopt rules as described in section 8 of this act;
(b)(i) Issue training licenses and pilot licenses to pilot
applicants meeting the qualifications provided for in RCW 88.16.090 and
such additional qualifications as may be determined by the board;
(ii) Establish a comprehensive training program to assist in the
training and evaluation of pilot applicants before final licensing; and
(iii) Establish additional training requirements, including a
program of continuing education developed after consultation with pilot
organizations, including those located within the state of Washington,
as required to maintain a competent pilotage service;
(c) Maintain a register of pilots, records of pilot accidents, and
other history pertinent to pilotage;
(d) Determine from time to time the number of pilots necessary to
be licensed in each district of the state to optimize the operation of
a safe, fully regulated, efficient, and competent pilotage service in
each district;
(e) Annually fix the pilotage tariffs for pilotage services
provided under this chapter: PROVIDED, That the board may fix extra
compensation for extra services to vessels in distress, for awaiting
vessels, for all vessels in direct transit to or from a Canadian port
where Puget Sound pilotage is required for a portion of the voyage, or
for being carried to sea on vessels against the will of the pilot, and
for such other services as may be determined by the board: PROVIDED
FURTHER, That as an element of the Puget Sound pilotage district
tariff, the board may consider pilot retirement plan expenses incurred
in the prior year in either pilotage district. However, under no
circumstances shall the state be obligated to fund or pay for any
portion of retirement payments for pilots or retired pilots;
(f) File annually with the governor and the chairs of the
transportation committees of the senate and house of representatives a
report which includes, but is not limited to, the following: The
number, names, ages, pilot license number, training license number, and
years of service as a Washington licensed pilot of any person licensed
by the board as a Washington state pilot or trainee; the names,
employment, and other information of the members of the board; the
total number of pilotage assignments by pilotage district, including
information concerning the various types and sizes of vessels and the
total annual tonnage; the annual earnings or stipends of individual
pilots and trainees before and after deduction for expenses of pilot
organizations, including extra compensation as a separate category; the
annual expenses of private pilot associations, including personnel
employed and capital expenditures; the status of pilotage tariffs,
extra compensation, and travel; the retirement contributions paid to
pilots and the disposition thereof; the number of groundings, marine
occurrences, or other incidents which are reported to or investigated
by the board, and which are determined to be accidents, as defined by
the board, including the vessel name, location of incident, pilot's or
trainee's name, and disposition of the case together with information
received before the board acted from all persons concerned, including
the United States coast guard; the names, qualifications, time
scheduled for examinations, and the district of persons desiring to
apply for Washington state pilotage licenses; summaries of dispatch
records, quarterly reports from pilots, and the bylaws and operating
rules of pilotage organizations; the names, sizes in deadweight tons,
surcharges, if any, port of call, name of the pilot or trainee, and
names and horsepower of tug boats for any and all oil tankers subject
to the provisions of RCW 88.16.190 together with the names of any and
all vessels for which the United States coast guard requires special
handling pursuant to their authority under the Ports and Waterways
Safety Act of 1972; the expenses of the board; and any and all other
information which the board deems appropriate to include;
(g) Make available information that includes the pilotage act and
other statutes of Washington state and the federal government that
affect pilotage, including the rules of the board, together with such
additional information as may be informative for pilots, agents,
owners, operators, and masters;
(h) Appoint advisory committees and employ marine experts as
necessary to carry out its duties under this chapter;
(i) Provide for the maintenance of efficient and competent pilotage
service on all waters covered by this chapter; and do such other things
as are reasonable, necessary, and expedient to insure proper and safe
pilotage upon the waters covered by this chapter and facilitate the
efficient administration of this chapter.
(2) If the department of ecology adopts rules after July 1, 2014,
pursuant to subsection (1)(a) of this section, any rules previously
adopted by the board pursuant to subsection (1)(a) of this section that
implement RCW 88.16.190, 88.16.195, and 88.16.200 are no longer in
effect as of the effective date of the rules adopted by the department
of ecology.
(3) The board may pay stipends to pilot trainees under subsection
(1)(b) of this section.
Sec. 6 RCW 88.16.170 and 1991 c 200 s 601 are each amended to
read as follows:
Because of the danger of spills, the legislature finds that the
transportation of crude oil and refined petroleum products by tankers
on the Columbia river, Grays Harbor, and on Puget Sound and adjacent
waters creates a great potential hazard to important natural resources
of the state and to jobs and incomes dependent on these resources.
The legislature recognizes that the Columbia river has many natural
obstacles to navigation and shifting navigation channels that create
the risk of an oil spill. The legislature also recognizes Grays Harbor
and Puget Sound and adjacent waters are ((a)) relatively confined salt
water environments with irregular shorelines and therefore there is a
greater than usual likelihood of long-term damage from any large oil
spill.
The legislature further recognizes that certain areas of the
Columbia river, Grays Harbor, and Puget Sound and adjacent waters have
limited space for maneuvering a large oil tanker and that these waters
contain many natural navigational obstacles as well as a high density
of commercial and pleasure boat traffic.
For these reasons, it is important that large oil tankers be
piloted by highly skilled persons who are familiar with local waters
and that such tankers have sufficient capability for rapid maneuvering
responses.
It is therefore the intent and purpose of RCW 88.16.180 and
88.16.190 to decrease the likelihood of oil spills on the Columbia
river, Grays Harbor, and on Puget Sound and its shorelines by requiring
all oil tankers above a certain size to employ licensed pilots and to
be escorted by a tug or tugs while navigating on certain areas of Puget
Sound and adjacent waters, and also in Grays Harbor and the Columbia
river if deemed prudent by the department of ecology.
Sec. 7 RCW 88.16.190 and 1994 c 52 s 1 are each amended to read
as follows:
(1) ((Any oil tanker, whether enrolled or registered, of greater
than one hundred and twenty-five thousand deadweight tons shall be
prohibited from proceeding beyond a point east of a line extending from
Discovery Island light south to New Dungeness light.)) Except as provided in subsection (2) of this section,
an oil tanker of greater than forty thousand deadweight tons may enter
any of the waters in (a) of this subsection, to the extent that these
waters are within the territorial boundaries of Washington, only if the
oil tanker is under the escort of a tug or tugs in compliance with the
requirements of subsection (3) of this section and section 8 of this
act:
(2) An oil tanker, whether enrolled or registered, of forty to one
hundred and twenty-five thousand deadweight tons may proceed beyond the
points enumerated in subsection (1) if such tanker possesses all of the
following standard safety features:
(a) Shaft horsepower in the ratio of one horsepower to each two and
one-half deadweight tons; and
(b) Twin screws; and
(c) Double bottoms, underneath all oil and liquid cargo
compartments; and
(d) Two radars in working order and operating, one of which must be
collision avoidance radar; and
(e) Such other navigational position location systems as may be
prescribed from time to time by the board of pilotage commissioners:
PROVIDED, That, if such forty to one hundred and twenty-five
thousand deadweight ton tanker is in ballast or is under escort of a
tug or tugs with an aggregate shaft horsepower equivalent to five
percent of the deadweight tons of that tanker, subsection (2) of this
section shall not apply: PROVIDED FURTHER, That additional tug shaft
horsepower equivalencies may be required under certain conditions as
established by rule and regulation of the Washington utilities and
transportation commission pursuant to chapter 34.05 RCW: PROVIDED
FURTHER, That
(a) East of a line extending from Discovery Island light south to
New Dungeness light and all points in the Puget Sound area, including
but not limited to Haro Strait, Rosario Strait, the Strait of Georgia,
Puget Sound, Hood Canal, and those portions of the Strait of Juan de
Fuca east of the line between New Dungeness light and Discovery Island
light;
(b) The department of ecology may designate the following
additional areas by rule where tug escorts are required:
(i) Within a two mile radius of the Grays Harbor pilotage district
as defined by RCW 88.16.050;
(ii) Within three miles of Cape Disappointment at the mouth of the
Columbia river; or
(iii) Any inland portion of the Columbia river up to Bonneville
dam.
(2)(a) If an oil tanker is in ballast, the tug requirements of
subsection (1) of this section do not apply.
(b) If an oil tanker is a single-hulled oil tanker of greater than
five thousand gross tons, the requirements of subsection (1)(a) of this
section do not apply and the oil tanker must instead comply with 33
C.F.R. Part 168, as of the effective date of this section.
(3) Oil tankers of greater than forty thousand deadweight tons must
ensure that any escort tugs they use have an aggregate shaft horsepower
equivalent to at least five percent of the deadweight tons of the
escorted oil tanker. The department of ecology may adopt rules to
ensure that escort tugs have sufficient capacity for safe escort.
(4) A tanker assigned a deadweight of less than forty thousand
deadweight tons at the time of construction or reconstruction as
reported in Lloyd's Register of Ships is not subject to the provisions
of RCW 88.16.170 through 88.16.190.
(5) For the purposes of this section, "oil tanker" means a self-propelled deep draft tank vessel designed to transport oil in bulk.
"Oil tanker" does not include an articulated tug-barge tank vessel.
NEW SECTION. Sec. 8 A new section is added to chapter 88.16 RCW
to read as follows:
(1)(a) Prior to adopting rules pursuant to this section, the
department of ecology must seek the input of stakeholders including
maritime safety forums such as the Puget Sound, Grays Harbor, and lower
Columbia region harbor safety committees. Both prior to and in
adopting rules pursuant to this section, the department of ecology must
consider the net benefits to navigational safety of any new tug escort
requirements. Both prior to and in adopting rules applicable to the
area described in RCW 88.16.190(1)(a), the department of ecology must
also consider the data and findings of the 2014 vessel traffic risk
assessment completed under the direction of the Puget Sound partnership
and maritime experts.
(b) Prior to adopting rules pursuant to this section, the
department of ecology must submit a report to the legislature by
December 1, 2014. The report must include a recommendation on the
merits of establishing additional tug escort safeguards by rule
pursuant to this section.
(c) Unless the 2015 legislature acts to repeal the department of
ecology's rule-making authority based on the recommendations of the
report, the department may adopt rules pursuant to this section.
(2) Beginning July 1, 2015, the department of ecology may adopt
rules to require the escort of oil tankers by a tug or tugs in the
areas listed in RCW 88.16.190(1).
(3) Beginning July 1, 2015, the department of ecology may adopt
rules that require additional safeguards related to tanker escorts to
address specific spill risks based on season, adverse weather
conditions, the type of oil, as defined in RCW 90.56.010, being
transported by the tanker, or geographic location. However, if an oil
tanker is equipped with fully redundant systems, the department of
ecology may not:
(a) Require escort by more than one tug; and
(b) Subject the oil tanker to any requirements adopted by rule
under this subsection (3).
(4) In developing rules for Grays Harbor and the Columbia river,
the department of ecology must recognize the differences between these
areas and Puget Sound, including differences in the physical
environment, vessel traffic, weather, and other relevant factors. The
department of ecology must appropriately account for these unique local
circumstances in any rules adopted pursuant to this section.
(5) The authority of the department of ecology to initiate rule
making to adopt additional tug escort safety requirements pursuant to
this section and RCW 88.16.190 expires January 1, 2020.
(6) For the purposes of this section, "redundant systems" includes,
at minimum, all of the following features:
(a) A double hull;
(b) Two independent propellers each with a dedicated engine or
motor, propulsion system, electrical system, fuel system, lube oil
system, and any other system required to provide an independent means
of propulsion;
(c) Two independent rudders, each with separate steering systems;
and
(d) The arrangement of the propulsion and steering systems in (b)
and (c) of this subsection such that a fire or flood in one space will
not affect the equivalent system in the other space or spaces.
Sec. 9 RCW 88.16.200 and 2008 c 128 s 14 are each amended to read
as follows:
Any vessel designed for the purpose of carrying as its cargo
liquefied natural or liquefied petroleum gas shall adhere to the
provisions of RCW 88.16.190(((2))) and rules adopted under section 8 of
this act as though it were an oil tanker.
Sec. 10 RCW 90.56.010 and 2007 c 347 s 6 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) "Board" means the pollution control hearings board.
(4) "Cargo vessel" means a self-propelled ship in commerce, other
than a tank vessel or a passenger vessel, three hundred or more gross
tons, including but not limited to, commercial fish processing vessels
and freighters.
(5) "Bulk" means material that is stored or transported in a loose,
unpackaged liquid, powder, or granular form capable of being conveyed
by a pipe, bucket, chute, or belt system.
(6) "Committee" means the preassessment screening committee
established under RCW 90.48.368.
(7) "Covered vessel" means a tank vessel, cargo vessel, or
passenger vessel.
(8) "Department" means the department of ecology.
(9) "Director" means the director of the department of ecology.
(10) "Discharge" means any spilling, leaking, pumping, pouring,
emitting, emptying, or dumping.
(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) underground storage tank
regulated by the department or a local government under chapter 90.76
RCW; (iii) motor vehicle motor fuel outlet; (iv) facility that is
operated as part of an exempt agricultural activity as provided in RCW
82.04.330; 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.
(12) "Fund" means the state coastal protection fund as provided in
RCW 90.48.390 and 90.48.400.
(13) "Having control over oil" shall include but not be limited to
any person using, storing, or transporting oil immediately prior to
entry of such oil into the waters of the state, and shall specifically
include carriers and bailees of such oil.
(14) "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.
(15) "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.
(16) "Necessary expenses" means the expenses incurred by the
department and assisting state agencies for (a) investigating the
source of the discharge; (b) investigating the extent of the
environmental damage caused by the discharge; (c) conducting actions
necessary to clean up the discharge; (d) conducting predamage and
damage assessment studies; and (e) enforcing the provisions of this
chapter and collecting for damages caused by a discharge.
(17) "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.
(18) "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.
(19) "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.
(20)(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.
(21) "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.
(22) "Person" means any political subdivision, government agency,
municipality, industry, public or private corporation, copartnership,
association, firm, individual, or any other entity whatsoever.
(23) "Ship" means any boat, ship, vessel, barge, or other floating
craft of any kind.
(24) "Spill" means an unauthorized discharge of oil or hazardous
substances into the waters of the state.
(25) "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.
(26) "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.
(27) "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.
(28) "Transmission pipeline" means an interstate or intrastate
pipeline subject to regulation by the United States department of
transportation under Part 195 of Title 49 of the code of federal
regulations in effect as of January 1, 2014, through which oil moves in
transportation, including line pipes, valves, and other appurtenances
connected to line pipes, pumping units, and fabricated assemblies
associated with pumping units.
(29) "Type of oil" means crude oil or refined petroleum products
including gasoline, diesel, jet fuel, fuel oils, blending components,
and other petroleum products. Crude oil types must be specified by
their distinct place of origin.
NEW SECTION. Sec. 11 A new section is added to chapter 90.56 RCW
to read as follows:
(1) For the purposes of this section, "barge" means a vessel that
is not self-propelled.
(2)(a) If an oil spill occurs involving a barge laden with oil
towed by a tug in the following geographic areas and the department
finds that the owner or operator of the tug has acted with recklessness
or negligence, the tug owner or operator is subject to a penalty of
between one thousand and one thousand five hundred dollars per gallon
of oil discharged, to the extent that these waters are within the
territorial boundaries of Washington:
(i) East of a line extending from Discovery Island light south to
New Dungeness light and all points in the Puget Sound area, including
but not limited to Haro Strait, Rosario Strait, the Strait of Georgia,
Puget Sound, Hood Canal, and those portions of the Strait of Juan de
Fuca east of the line between New Dungeness light and Discovery Island
light;
(ii) Within a two mile radius of the Grays Harbor pilotage district
as defined by RCW 88.16.050;
(iii) Within three miles of Cape Disappointment at the mouth of the
Columbia river; or
(iv) Any inland portion of the Columbia river.
(b) Regardless of whether the department makes a finding of
recklessness or negligence under (a) of this subsection, the owner or
operator of a tug is not subject to the penalties under (a) of this
subsection if there were at least two individuals qualified by the
United States coast guard in the control bridge of the tug for the
duration of the voyage as recorded in the ship's log, one of whom was
assigned to serve exclusively as lookout except during the docking of
the vessel.
(c) The absence of a finding of recklessness or negligence by the
department for purposes of the assessment of penalties under this
subsection (2) may not be used as a defense to liability under RCW
9A.08.010 or other statutes or common law that establish standards for
the determination of recklessness or negligence.
(3) The penalty assessed in subsection (2) of this section is in
addition to any natural resource damages provided for under RCW
90.48.366 or 90.48.367 and any other penalties provided for under this
chapter or chapter 90.48 or 88.46 RCW.
NEW SECTION. Sec. 12 A new section is added to chapter 88.16 RCW
to read as follows:
The department of ecology may issue a penalty of up to ten thousand
dollars a day for each violation of RCW 88.16.190 or 88.16.200 or rules
adopted under section 8 of this act. Each violation is a separate and
distinct offense, and in the case of a continuing violation, every
day's continuance is a separate and distinct violation. Every act of
commission or omission which procures, aids, or abets in the violation
is considered a violation and subject to the penalty. The penalty
amount must be set in consideration of the previous history of the
violator and the severity of the violation's impact on public health,
the environment, or both, in addition to other relevant factors.
Penalties under this section shall be imposed pursuant to the
procedures set forth in RCW 43.21B.300.
Sec. 13 RCW 43.21B.110 and 2013 c 291 s 33 are each amended to
read as follows:
(1) The hearings board shall only have jurisdiction to hear and
decide appeals from the following decisions of the department, the
director, local conservation districts, the air pollution control
boards or authorities as established pursuant to chapter 70.94 RCW,
local health departments, the department of natural resources, the
department of fish and wildlife, the parks and recreation commission,
and authorized public entities described in chapter 79.100 RCW:
(a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431,
70.105.080, 70.107.050, 76.09.170, 77.55.291, 78.44.250, section 12 of
this act, 88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310,
90.56.330, section 11 of this act, and 90.64.102.
(b) Orders issued pursuant to RCW 18.104.043, 18.104.060,
43.27A.190, 70.94.211, 70.94.332, 70.105.095, 86.16.020, 88.46.070,
90.14.130, 90.46.250, 90.48.120, and 90.56.330.
(c) A final decision by the department or director made under
chapter 183, Laws of 2009.
(d) Except as provided in RCW 90.03.210(2), the issuance,
modification, or termination of any permit, certificate, or license by
the department or any air authority in the exercise of its
jurisdiction, including the issuance or termination of a waste disposal
permit, the denial of an application for a waste disposal permit, the
modification of the conditions or the terms of a waste disposal permit,
or a decision to approve or deny an application for a solid waste
permit exemption under RCW 70.95.300.
(e) Decisions of local health departments regarding the grant or
denial of solid waste permits pursuant to chapter 70.95 RCW.
(f) Decisions of local health departments regarding the issuance
and enforcement of permits to use or dispose of biosolids under RCW
70.95J.080.
(g) Decisions of the department regarding waste-derived fertilizer
or micronutrient fertilizer under RCW 15.54.820, and decisions of the
department regarding waste-derived soil amendments under RCW 70.95.205.
(h) Decisions of local conservation districts related to the denial
of approval or denial of certification of a dairy nutrient management
plan; conditions contained in a plan; application of any dairy nutrient
management practices, standards, methods, and technologies to a
particular dairy farm; and failure to adhere to the plan review and
approval timelines in RCW 90.64.026.
(i) Any other decision by the department or an air authority which
pursuant to law must be decided as an adjudicative proceeding under
chapter 34.05 RCW.
(j) Decisions of the department of natural resources, the
department of fish and wildlife, and the department that are reviewable
under chapter 76.09 RCW, and the department of natural resources'
appeals of county, city, or town objections under RCW 76.09.050(7).
(k) Forest health hazard orders issued by the commissioner of
public lands under RCW 76.06.180.
(l) Decisions of the department of fish and wildlife to issue,
deny, condition, or modify a hydraulic project approval permit under
chapter 77.55 RCW.
(m) Decisions of the department of natural resources that are
reviewable under RCW 78.44.270.
(n) Decisions of an authorized public entity under RCW 79.100.010
to take temporary possession or custody of a vessel or to contest the
amount of reimbursement owed that are reviewable by the hearings board
under RCW 79.100.120.
(2) The following hearings shall not be conducted by the hearings
board:
(a) Hearings required by law to be conducted by the shorelines
hearings board pursuant to chapter 90.58 RCW.
(b) Hearings conducted by the department pursuant to RCW 70.94.332,
70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.
(c) Appeals of decisions by the department under RCW 90.03.110 and
90.44.220.
(d) Hearings conducted by the department to adopt, modify, or
repeal rules.
(3) Review of rules and regulations adopted by the hearings board
shall be subject to review in accordance with the provisions of the
administrative procedure act, chapter 34.05 RCW.
Sec. 14 RCW 43.21B.110 and 2013 c 291 s 34 are each amended to
read as follows:
(1) The hearings board shall only have jurisdiction to hear and
decide appeals from the following decisions of the department, the
director, local conservation districts, the air pollution control
boards or authorities as established pursuant to chapter 70.94 RCW,
local health departments, the department of natural resources, the
department of fish and wildlife, the parks and recreation commission,
and authorized public entities described in chapter 79.100 RCW:
(a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431,
70.105.080, 70.107.050, 76.09.170, 77.55.291, 78.44.250, section 12 of
this act, 88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310,
90.56.330, section 11 of this act, and 90.64.102.
(b) Orders issued pursuant to RCW 18.104.043, 18.104.060,
43.27A.190, 70.94.211, 70.94.332, 70.105.095, 86.16.020, 88.46.070,
90.14.130, 90.46.250, 90.48.120, and 90.56.330.
(c) Except as provided in RCW 90.03.210(2), the issuance,
modification, or termination of any permit, certificate, or license by
the department or any air authority in the exercise of its
jurisdiction, including the issuance or termination of a waste disposal
permit, the denial of an application for a waste disposal permit, the
modification of the conditions or the terms of a waste disposal permit,
or a decision to approve or deny an application for a solid waste
permit exemption under RCW 70.95.300.
(d) Decisions of local health departments regarding the grant or
denial of solid waste permits pursuant to chapter 70.95 RCW.
(e) Decisions of local health departments regarding the issuance
and enforcement of permits to use or dispose of biosolids under RCW
70.95J.080.
(f) Decisions of the department regarding waste-derived fertilizer
or micronutrient fertilizer under RCW 15.54.820, and decisions of the
department regarding waste-derived soil amendments under RCW 70.95.205.
(g) Decisions of local conservation districts related to the denial
of approval or denial of certification of a dairy nutrient management
plan; conditions contained in a plan; application of any dairy nutrient
management practices, standards, methods, and technologies to a
particular dairy farm; and failure to adhere to the plan review and
approval timelines in RCW 90.64.026.
(h) Any other decision by the department or an air authority which
pursuant to law must be decided as an adjudicative proceeding under
chapter 34.05 RCW.
(i) Decisions of the department of natural resources, the
department of fish and wildlife, and the department that are reviewable
under chapter 76.09 RCW, and the department of natural resources'
appeals of county, city, or town objections under RCW 76.09.050(7).
(j) Forest health hazard orders issued by the commissioner of
public lands under RCW 76.06.180.
(k) Decisions of the department of fish and wildlife to issue,
deny, condition, or modify a hydraulic project approval permit under
chapter 77.55 RCW.
(l) Decisions of the department of natural resources that are
reviewable under RCW 78.44.270.
(m) Decisions of an authorized public entity under RCW 79.100.010
to take temporary possession or custody of a vessel or to contest the
amount of reimbursement owed that are reviewable by the hearings board
under RCW 79.100.120.
(2) The following hearings shall not be conducted by the hearings
board:
(a) Hearings required by law to be conducted by the shorelines
hearings board pursuant to chapter 90.58 RCW.
(b) Hearings conducted by the department pursuant to RCW 70.94.332,
70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.
(c) Appeals of decisions by the department under RCW 90.03.110 and
90.44.220.
(d) Hearings conducted by the department to adopt, modify, or
repeal rules.
(3) Review of rules and regulations adopted by the hearings board
shall be subject to review in accordance with the provisions of the
administrative procedure act, chapter 34.05 RCW.
Sec. 15 RCW 43.21B.300 and 2010 c 210 s 12 and 2010 c 84 s 4 are
each reenacted and amended to read as follows:
(1) Any civil penalty provided in RCW 18.104.155, 70.94.431,
70.95.315, 70.105.080, 70.107.050, section 12 of this act, 88.46.090,
90.03.600, 90.46.270, 90.48.144, 90.56.310, 90.56.330, and 90.64.102
and chapter 90.76 RCW shall be imposed by a notice in writing, either
by certified mail with return receipt requested or by personal service,
to the person incurring the penalty from the department or the local
air authority, describing the violation with reasonable particularity.
For penalties issued by local air authorities, within thirty days after
the notice is received, the person incurring the penalty may apply in
writing to the authority for the remission or mitigation of the
penalty. Upon receipt of the application, the authority may remit or
mitigate the penalty upon whatever terms the authority in its
discretion deems proper. The authority may ascertain the facts
regarding all such applications in such reasonable manner and under
such rules as it may deem proper and shall remit or mitigate the
penalty only upon a demonstration of extraordinary circumstances such
as the presence of information or factors not considered in setting the
original penalty.
(2) Any penalty imposed under this section may be appealed to the
pollution control hearings board in accordance with this chapter if the
appeal is filed with the hearings board and served on the department or
authority thirty days after the date of receipt by the person penalized
of the notice imposing the penalty or thirty days after the date of
receipt of the notice of disposition by a local air authority of the
application for relief from penalty.
(3) A penalty shall become due and payable on the later of:
(a) Thirty days after receipt of the notice imposing the penalty;
(b) Thirty days after receipt of the notice of disposition by a
local air authority on application for relief from penalty, if such an
application is made; or
(c) Thirty days after receipt of the notice of decision of the
hearings board if the penalty is appealed.
(4) If the amount of any penalty is not paid to the department
within thirty days after it becomes due and payable, the attorney
general, upon request of the department, shall bring an action in the
name of the state of Washington in the superior court of Thurston
county, or of any county in which the violator does business, to
recover the penalty. If the amount of the penalty is not paid to the
authority within thirty days after it becomes due and payable, the
authority may bring an action to recover the penalty in the superior
court of the county of the authority's main office or of any county in
which the violator does business. In these actions, the procedures and
rules of evidence shall be the same as in an ordinary civil action.
(5) All penalties recovered shall be paid into the state treasury
and credited to the general fund except those penalties imposed
pursuant to RCW 18.104.155, which shall be credited to the reclamation
account as provided in RCW 18.104.155(7), RCW 70.94.431, the
disposition of which shall be governed by that provision, RCW
70.105.080, which shall be credited to the hazardous waste control and
elimination account created by RCW 70.105.180, RCW 90.56.330, which
shall be credited to the coastal protection fund created by RCW
90.48.390, and RCW 90.76.080, which shall be credited to the
underground storage tank account created by RCW 90.76.100.
NEW SECTION. Sec. 16 Section 13 of this act expires June 30,
2019.
NEW SECTION. Sec. 17 Section 14 of this act takes effect June
30, 2019.
NEW SECTION. Sec. 18 Section 4 of 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 immediately.
NEW SECTION. Sec. 19 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.