HOUSE BILL REPORT

HB 2494

BYRepresentatives 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

Majority Report:  The substitute bill be substituted therefor and the substitute bill do pass.  (10)

      Signed by Representatives Rust, Chair; Valle, Vice Chair; D. Sommers, Ranking Republican Member; Brekke, Fraser, Phillips, Pruitt, Schoon, Sprenkle and Van Luven.

House Staff:Harry Reinert (786-7110)

Rereferred House Committee on Appropriations

Majority Report:  The second substitute bill be substituted therefor and the second substitute bill do pass.  (21)

      Signed by Representatives Locke, Chair; Grant, Vice Chair; H. Sommers, Vice Chair; Silver, Ranking Republican Member; Youngsman, Assistant Ranking Republican Member; Belcher, Bowman, Brekke, Dorn, Doty, Ebersole, Ferguson, Hine, May, McLean, Nealey, Rust, Spanel, Sprenkle, Wang and Wineberry.

House Staff:      Nancy Stevenson (786-7130)

AS REPORTED BY COMMITTEE ON APPROPRIATIONS FEBRUARY 5, 1990

BACKGROUND:

Washington has had specific provisions 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.

Current 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 resources and the lost value of 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 was 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 only 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 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 in Ray v. ARCO, 435 U.S. 151 (1978), 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.

Under current law, 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 which 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 which 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, civil penalties, and damage to the environment.  The evidence of responsibility must be the greater of $1 million or $150 per gross ton of the vessel.

SUMMARY:

SUBSTITUTE BILL:  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 spills.

The Department of Ecology must adopt rules for the plans by July 1, 1991.  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 which 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 which 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 which 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.  The department must adopt rules to determine the accuracy of the plans and 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 a facility accepting cargo from a vessel or ship without a plan is also subject to a fine of up to $100,000 for each day.  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 which is provided by the Department of Ecology to establish that the vessel has an approved plan.

The Department of Ecology is required to prepare, by July 1, 1991, 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 plan shall:  consider the plans developed for individual facilities and vessels; 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 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 departments are also directed to establish training programs in wildlife rescue procedures.  Persons trained under these programs should be used in responding to future oil and hazardous substance spills.

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 policies regarding under what circumstances, if any, chemical agents, including coagulants, dispersants, and bioremediation, should be allowed in response to an oil spill and on the disposal of oil and hazardous substances collected from a spill.

The Department of Transportation is directed to adopt standards for the use of tow lines by barges carrying oil or hazardous substances.

The defenses against liability for an oil spill are modified. The only defenses are prior authorization by the department, operation of law, or a spill caused solely by an act of war or God or the negligence of the state.  The negligence of the United States is not a defense against liability.  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 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 injuries caused by a person responding to an oil spill is provided.  The state and local governments, a volunteer, and a qualified cleanup contractor responding to a spill are liable only for a wrongful death or for actions taken in bad faith or with gross negligence.  If the cleanup contractor is designated in the contingency plan by the person responsible for the oil as the cleanup contractor, then the cleanup contractor is liable for simple negligence and actions taken in bad faith.

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

In addition to other requirements for licensing as a pilot in Washington, a person may not have been convicted of a drug or alcohol offense within the prior five years. 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.  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, the license must be suspended for one year.  If the pilot is found by the board to have been under the influence of drugs or alcohol while on duty, the board shall revoke the pilot's license for a five year period.

The legislative budget committee is directed to review the Board of Pilotage Commissioners and report to the Legislature in December 1990.

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

SUBSTITUTE BILL COMPARED TO ORIGINAL: The substitute does not require contingency plans for hazardous substances, which was required by the original bill.  The substitute requires only larger cargo vessels and passenger vessels to complete plans.  The original bill required all vessels with more than 1,000 gallons of oil to prepare plans.  The substitute limits the size and location of facilities required to prepare plans.  The original bill required any facility on or near navigable waters to prepare a plan.  The substitute extends the time for the Department of Ecology to prepare rules and the master plan, and requires the largest facilities to submit their plans first.  The substitute adds provisions relating to the Wildlife Rescue Coalition and provides limited immunity from liability to cleanup personnel.  The substitute also changes provisions relating to state pilot's licenses to allow more discretion to the board when an alcohol or drug offense was committed off duty.  The substitute would require the board to revoke a pilot's license if a pilot is under the influence of drugs or alcohol while on duty.  The substitute also requires the Legislative Budget Committee to study the Board of Pilotage Commissioners.

CHANGES PROPOSED BY COMMITTEE ON APPROPRIATIONS (SECOND SUBSTITUTE BILL):  A designated cleanup contractor is liable for damages only if the contractor is guilty of gross negligence or acts in bad faith.  Simple negligence no longer applies.  The board of pilotage commissioners will consider alcohol or drug convictions occurring during the prior year when considering whether to order a pilot into treatment.  Appropriations added.

Appropriation:    (Environmental Affairs Committee)  None.

(Appropriations Committee)  $996,000 to the Department of Ecology from the state toxics control account; and $32,000 to the Department of Wildlife from the general fund.

Fiscal Note:      Available.

Effective Date:The bill contains an emergency clause and takes effect immediately.

House Committee ‑ Testified For:    (Environmental Affairs)  John Ballentine, Committee for Oil Pollution Prevention; Chris Platt, Sierra Club; Steve Hunter, Department of Ecology; and Dr. Edward Wenk, Jr.

(Appropriations)  Representative Nancy Rust, Prime Sponsor; and Lee Smith, Department of Wildlife.

House Committee - Testified Against:      (Environmental Affairs)  No one.

(Appropriations)  No one.

House Committee - Testimony For:    (Environmental Affairs)  The dangers posed to the state's environment by a serious oil spill are real.  There is a considerable amount of traffic on Puget Sound, off the coast, and on the Columbia River.  Contingency plans offer a way to assure that the problems faced by Alaska in responding to an oil spill will not be repeated in Washington.  In addition, the state can enact some measures to reduce the likelihood that a spill will occur, including limits to the speed of tankers.

(Appropriations)  Contingency plans and drills are designed to prevent and minimize oil spills.  Very supportive of wildlife rescue coalition approach.

House Committee - Testimony Against:      (Environmental Affairs)  None.

(Appropriations)  None.