WSR 00-18-106



[ Order 00-23 -- Filed September 6, 2000, 10:26 a.m. ]

Subject of Possible Rule Making: The Department of Ecology (ecology) is proposing to first repeal chapter 317-21 WAC and later adopt new rules consistent with the holding of the United States Supreme Court in U.S. v. Locke, et al., _U.S._, 120 S.Ct. 1135 (2000). The Supreme Court held in Locke that states may regulate tank vessels only where the regulations are based on peculiarities of local waters that call for special precautionary measures.

Ecology intends to repeal chapter 317-21 WAC because most provisions do not address peculiarities of Washington waters. New rules for tank vessels are being considered to meet the mandate of RCW 88.46.040 which requires the best achievable protection from harm caused by oil spills to water. Before adopting rules, ecology must answer the following questions:

1. Which peculiarities of Washington waters should be addressed by state regulation?

2. What measures address the peculiarity of the waters?

3. Do potential measures affect vessel operations outside state waters?

4. Do potential measures require adjustment of systemic aspects of a vessel?

5. Do potential measures impose a substantial burden on vessel operations?

6. What is the risk of innocent noncompliance?

7. Has the United States Coast Guard determined that potential measures are unnecessary or inappropriate?

Statutes Authorizing the Agency to Adopt Rules on this Subject: RCW 88.40.020, 88.46.040, 90.56.030, and 90.56.350.

Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: Ecology received three petitions for rule making on July 19, 20 and 24, respectively. Taken in combination, the petitions request repeal of chapter 317-21 WAC because the provisions conflict with the holding of the Supreme Court in U.S. v. Locke, et al. Under RCW 34.05.330, ecology must respond within sixty days of receipt by either denying the petitions or initiating rule making. Ecology determined that the petitions made valid requests for rule making and have initiated this rule making in response.

At the same time, RCW 88.46.040 requires ecology to develop rules for tank vessels that provide the best achievable protection of Washington's waters from harm caused by oil spills. Following repeal of chapter 317-21 WAC, ecology will begin a rule-making process aimed at accomplishing the requirement of RCW 88.46.040 within the guidelines provided by the United States Supreme Court.

Other Federal and State Agencies that Regulate this Subject and the Process Coordinating the Rule with These Agencies: To meet the standards established by the United States Supreme Court, ecology must work with the United States Coast Guard to determine whether a measure ecology may implement either acts in an area of regulation reserved to the Coast Guard, or is a measure that Coast Guard has determined to be unnecessary or inappropriate. As rule making progresses, the Coast Guard will be consulted on each peculiarity and measure identified.

Process for Developing New Rule: Ecology will implement this rule making in two phases. The first phase will be repeal of chapter 317-21 WAC. The second phase will be a more involved process to identify waterways, peculiarities and measures to address those peculiarities. For the second phase, information will be solicited from Washington's maritime community and the public through questionnaires and informational meetings. This information will be used to identify peculiarities of specific waterways, and measures to address those peculiarities. Once identified, public workshops will be held to review the problems identified and mitigation measures proposed. Throughout this process, ecology will closely consult with appropriate Coast Guard offices.

Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication. Information and comments on the questions posed by this preproposal statement of inquiry, or requests to be placed on the mailing list for this rule making may be submitted to Jeff Fishel, Department of Ecology, Spill Prevention, Preparedness, and Response Program, P.O. Box 47600, Olympia, WA 98504-7600, e-mail

September 5, 2000

Joe Stohr

Program Manager

Washington State Code Reviser's Office