FINAL BILL REPORT

2SHB 2494

                                  C 116 L 90

BYHouse Committee on Appropriations (originally sponsored by Representatives Rust, Phillips, Schoon, Pruitt, D. Sommers, Todd, Miller, G. Fisher, Valle, Brekke, Walker, Jacobsen, Sprenkle, Fraser, Anderson, Hargrove, Prentice, Van Luven, Winsley, R. Fisher, Wood, Wineberry, Jones, Dellwo, May, R. King, Kremen, P. King, Haugen, Wang, Crane, Hine, Spanel and Rasmussen)

Changing provisions relating to oil and hazardous substance spills.

House Committe on Environmental Affairs

Rereferred House Committee on Appropriations

Senate Committee on Environment & Natural Resources and Ways & Means

SYNOPSIS AS ENACTED

BACKGROUND:

Washington has had laws specifically governing the discharge of oil into state waters since at least 1969.  Even prior to that time, the state prohibited the discharge of polluting substances into the state's waters.  The federal government has also enacted a number of measures that govern the discharge of oil and other substances into the water.

State law makes it illegal for any person to pollute state waters.  A person who pollutes state waters may be subject to both criminal and civil penalties.  The person is also liable for any damage to the environment, including the cost of restoring damaged natural resources and the lost value of those resources until they are restored.

With respect to pollution caused by the discharge of oil into state waters, additional regulatory and liability provisions apply.  It is unlawful for any person to allow oil to enter state waters regardless of the cause.  The only exceptions are if the discharge is authorized by the Department of Ecology or under operation of law, or if the spill is caused by an act of war or by the negligence of the United States or Washington state.

Under federal law, the Coast Guard has responsibility for marine safety and for responding to spills on the navigable waters of the United States.  The Department of Ecology is the Washington state agency responsible for taking actions necessary to contain and clean up any spilled oil.

A person who spills oil in Washington waters and fails to immediately collect the oil is responsible for the state's expenses in cleaning up the spill. The state imposes strict liability for damages on the person owning the oil or having control over the oil.  Strict liability may be avoided if the person can demonstrate that the spill was caused by an act of war or by negligence on the part of the state or the United States.  There are no statutory provisions governing the liability of individuals who respond to a spill.

A person who spills oil is liable for a civil penalty of up to $20,000 each day that the spill poses a risk to the environment. If the spill was caused by willful or reckless conduct, the penalty may be up to $100,000 for each day that the risk continues.

The department has authority to enter public or private property to investigate unlawful discharges of oil into state waters.

Any person who spills oil into state waters is required to notify the department in Olympia or at a regional office.

In 1975, Washington state enacted measures to regulate the size and design of oil tankers that enter Puget Sound.  That legislation also required tug escorts and Washington state licensed pilots for certain tankers.  The United States Supreme Court held that certain provisions of the Washington statute relating to pilotage and tug escorts could be enforced by the state.  The court held, however, that a provision prohibiting tankers over a certain size into Puget Sound exceeded the state's authority and was unenforceable. Likewise, the court held that the state could not impose design requirements on tankers entering Puget Sound.  Congress has enacted a statute and the Coast Guard has issued a rule prohibiting tankers of over 125,000 deadweight tons from entering Puget Sound.

An oil tanker of 40,000 deadweight tons or greater is required to take on a pilot before entering Puget Sound.  Tankers of over 50,000 tons that do not have twin screws, double bottoms, and double radar are required, in addition, to have a tug escort when they enter Puget Sound.

The state Board of Pilotage Commissioners is responsible for licensing pilots in Washington state waters.  The board sets standards for testing and may fine, suspend, or revoke the license of a pilot who violates board rules or causes an accident resulting in damage to or loss of a vessel.  A pilot who is found to have been under the influence of drugs or alcohol while on duty may have his or her license suspended on an emergency basis pending final determination by the board of the appropriate sanction.

Any vessel of over 300 tons that carries petroleum products in Washington state waters is required to have evidence of financial responsibility to pay for the state's costs in removal of an oil spill and for civil penalties and damage to the environment.  The evidence of financial responsibility must be the greater of $1 million or $150 per gross ton of the vessel.

SUMMARY:

Operators of tankers and barges carrying oil in bulk, cargo and passenger vessels of 300 gross tons or greater, and oil processing and storage facilities located near navigable waters are required to prepare and submit to the Department of Ecology plans for the prevention, containment, and cleanup of oil spills.

The Department of Ecology must adopt rules for the plans by July 1, 1991.  Rules for vessels operating on the Columbia River must be adopted by July 1, 1992.  The rules must require the plans to:  include details on the method of response to a spill; be designed to adequately respond to spills of significant size and limit damage to the environment; include early detection procedures and notification to governmental authorities; state the experience and number of personnel assigned to respond; provide for periodic training and practice exercises; provide for the use of qualified cleanup personnel; and include a description of measures undertaken to reduce the likelihood that a spill will occur.

Facilities capable of storing more than one million gallons of oil and tank vessels of over 20,000 deadweight tons must submit their plans within six months after the rules are adopted.  Other facilities must submit their plans within 18 months after the rules are adopted.  A facility may submit plans for vessels that stop at that facility and may submit a single plan for a class of vessels.  The owner or operator of a vessel and the shipping agent may submit a plan for a cargo or passenger vessel that must submit a plan.  A single plan may be submitted for more than one vessel.  A person providing cleanup services may submit a plan for facilities and vessels for which the person is providing those services.

The department will approve plans that have adequate personnel, equipment, notification procedures, and logistical arrangements. In reviewing plans, the department must consider the nature of vessel traffic and the amount of oil and hazardous substances transported in the area covered by a plan, navigational hazards, prior history of spills in the area, and the sensitivity of the environment.  Plans must be reviewed and updated at least once every five years.  The department will publish an index of approved contingency plans and an inventory of available spill containment and cleanup equipment.

To determine the adequacy of the plans, the department must require annual practice drills of those providing cleanup services. The department must prepare a report summarizing the results of these drills.

Plans approved by the department are binding on the persons submitting them.  The department may obtain court orders to enforce the plans.  Approval of a plan by the department does not guarantee the adequacy of the plan and is not a defense against liability for damages caused by a spill.

A person failing to submit a plan or operating a facility without an approved plan is subject to both civil and criminal penalties. Operating a facility, vessel, or ship without a required plan constitutes a gross misdemeanor for a first offense and a class C felony for a second offense.  A person operating a facility without a plan, or accepting cargo or passengers from a vessel without a plan, is also subject to a fine of up to $100,000 for each day in violation.  The Department of Licensing may revoke the business license of a facility operating without a plan.  A facility may rely on a statement of coverage that is provided by the Department of Ecology to establish that the vessel has an approved plan.

By July 1, 1991, the Department of Ecology is required to prepare a state-wide plan for the prevention of oil and hazardous substance spills.  The plan will be prepared with the assistance of an advisory committee representing industry, local government, and environmental organizations.  The department and advisory committee, in preparing the state-wide plan, shall consider the plans developed for individual facilities and vessels.  The state-wide plan must state the responsibilities of the various individuals, organizations, companies, and governments responsible for responding to spills; identify actions necessary to reduce the likelihood of a spill; and identify sensitive areas.  The plan must be submitted for public review and comment before adoption, be updated and submitted to the appropriate committees of the Legislature annually, and include provision for practice drills.

The department is directed to establish standards for persons who contract to provide cleanup and containment services.  The standards will include requirements for the quality and quantity of equipment and personnel to be provided by the contractor.

The Department of Wildlife, together with the departments of Ecology, Fisheries, and Natural Resources, is directed to study and report to the Legislature on current efforts for collecting baseline environmental data for sensitive areas.

The Washington Wildlife Rescue Coalition is established.  The coalition has representatives from the departments of Wildlife, Ecology, and Community Development, in addition to representatives from counties and the public.  The coalition is directed to:  develop a plan for rescue and rehabilitation of wildlife injured as a result of an oil or hazardous substance spill; maintain a resource directory; provide training; and maintain equipment.  Funds for the coalition may be provided from the coastal protection fund.

The Department of Ecology is directed to develop a policy regarding the use of chemical agents, including coagulants, dispersants, and bioremediation, in response to an oil spill and a policy on the disposal of oil and hazardous substances collected from a spill.

The Department of Ecology is directed to develop standards for the use of tow lines by barges carrying oil or hazardous substances and to develop a program for voluntary compliance with those standards.  The department is also directed to study state authority to impose the standards and report the results of its study to the Legislature by July 1, 1991.

The defenses against liability for an oil spill are modified. It is unlawful to discharge oil into state waters without authorization.  The person owning the oil or in control of the oil is strictly liable for damages, unless the person can show that the spill was caused solely by an act of war or God or the negligence of the state or of the United States.  The changes to liability do not apply to causes of action filed prior to the effective date of the act.

The department is required to respond to, and take all actions necessary to respond to, a release or a threatened release of oil or hazardous substances.  A person who unlawfully discharges oil into waters of the state is responsible for the necessary expenses incurred in responding to the discharge.  In investigating violations or determining damages, the director may issue subpoenas for the production of records or witnesses.

A person who spills oil or hazardous substances into the water is required to first notify the Coast Guard and then the Division of Emergency Management at its toll-free number.

Immunity from liability for necessary expenses and property damage caused by a person responding to an oil spill is provided.  The state, local governments, volunteers, and qualified cleanup contractors responding to a spill are liable only for damage caused by actions taken in bad faith or with gross negligence.

Tankers required to have tug escorts may not exceed the service speed of the tug.

In addition to other requirements for licensing as a vessel pilot in Washington, a person may not have been convicted of a drug or alcohol offense within the year prior to application for a license.  The Board of Pilotage Commissioners must review the license of a pilot who is convicted of an offense involving drugs or the personal consumption of alcohol while on duty within the year prior to license review.  The board must order treatment for the pilot.  If the pilot does not complete treatment, the pilot's license must be suspended until treatment is completed. If the pilot has a second conviction in a five year period, the license may be suspended for up to one year.

The financial responsibility requirements imposed on vessels carrying oil as cargo are also required of inland barges carrying hazardous substances as cargo.

VOTES ON FINAL PASSAGE:

      House 98   0

      Senate    47     1 (Senate amended)

      House 96   0 (House concurred)

EFFECTIVE:June 7, 1990