WSR 16-18-052 PERMANENT RULES DEPARTMENT OF ECOLOGY [Order 15-14—Filed August 31, 2016, 11:51 a.m., effective October 1, 2016] Effective Date of Rule: Thirty-one days after filing.
Purpose: Chapter 173-186 WAC establishes oil spill contingency plan, drill and equipment verification requirements, and provisions for inspection of records for owners and operators of railroads required to submit oil spill contingency plans under chapter 90.56 RCW, and for the response contractors that support the implementation of the railroad plans. The adoption of this rule requires railroads to develop and maintain contingency plans approved by ecology. Contingency plans for railroads will ensure that environmental and economic damages from oil spills are reduced and that public health and safety is protected through immediate notifications of spills and threats of spills, coordination with first responders, prestaged oil response equipment, and personnel trained to respond to incidents in a rapid, aggressive, and well-coordinated manner. The rule also requires regularly scheduled oil spill drills to test and strengthen the plans through implementation.
Statutory Authority for Adoption: RCW 90.56.210.
Adopted under notice filed as WSR 16-08-117 on April 6, 2016.
Changes Other than Editing from Proposed to Adopted Version: Other than minor edits for clarity, the following changes were made:
A final cost-benefit analysis is available by contacting Kasia Patora, Economics and Regulatory Research, Department of Ecology, P.O. Box 47600, Olymipa [Olympia], WA 98504-7600, phone (360) 407-6184, fax (360) 407-6989, e-mail Kasia.Patora@ecy.wa.gov.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 36, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Date Adopted: August 31, 2016.
Maia Bellon
Director
by Polly Zehm
Chapter 173-186 WAC
OIL SPILL CONTINGENCY PLAN—RAILROAD PART I: PURPOSE, APPLICABILITY, AUTHORITY AND DEFINITIONS
NEW SECTION
WAC 173-186-010 Purpose.
The purpose of this chapter is to establish railroad oil spill contingency plan requirements, drill and equipment verification requirements, and provisions for inspection of records, effects of noncompliance, and enforcement, which:
(1) Ensure maximally effective and rapid responses to oil spills by plan holders and response contractors;
(2) Ensure constant readiness, well-maintained equipment and trained personnel;
(3) Support coordination with state, federal, local, tribal and other contingency planning efforts;
(4) Provide for the protection of Washington waters, and natural, cultural and significant economic resources by minimizing the impact of oil spills; and
(5) Provide the highest level of protection that can be met through the use of best achievable technology and those staffing levels, training procedures, and operational methods that constitute best achievable protection (BAP) as informed by the BAP five year review cycle (WAC 173-186-410) and as determined by ecology.
NEW SECTION
WAC 173-186-020 Applicability.
(1) This chapter applies to:
(a) Railroad facilities required to submit oil spill contingency plans under chapter 90.56 RCW except for facilities as described in subsection (2) of this section.
(b) Railroad facility owners or operators who lease access to state owned railroad tracks.
(c) Any person submitting a contingency plan on behalf of a facility regulated under this chapter.
(d) Primary response contractors (PRCs) under contract to railroad contingency plan holders.
(2) This chapter does not apply to:
(a) A railroad that is owned and operated by the state.
(b) Pipelines or facilities other than railroads. Contingency planning regulations for pipelines and facilities other than railroads are described in chapter 173-182 WAC.
NEW SECTION
WAC 173-186-030 Authority.
RCW 88.46.160, 90.48.080, 90.56.005, 90.56.050, 90.56.060, 90.56.210, 90.56.240, 90.56.260, 90.56.270, 90.56.280, 90.56.300, 90.56.310, 90.56.320, 90.56.340, and 90.56.570 provide statutory authority for the contingency plan preparation and review requirements and drill standards established by this chapter for railroads.
NEW SECTION
WAC 173-186-040 Definitions.
Unless the context clearly requires otherwise, the definitions in chapters 90.56 RCW, 173-182 WAC and the following apply to this chapter.
"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.
"Cargo" means goods or services carried as freight for commerce.
"Facility" means:
(a) 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) For the purposes of oil spill contingency planning in RCW 90.56.210, facility also means a railroad that is not owned by the state that transports oil as bulk cargo.
(c) Except as provided in (b) of this subsection, 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.
"Oil" or "oils" means oil of any kind that is liquid at twenty-five degrees Celsius and one atmosphere of pressure and any fractionation thereof including, but not limited to, crude oil, bitumen, synthetic crude oil, natural gas well condensate, 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 102(a) of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by P.L. 99-499.
"Owner" or "operator" means, in the case of a railroad, any person owning or operating the railroad. Operator does not include any person who owns the land underlying a railroad if the person is not involved in the operations of the railroad.
"Planning standards" means goals and criteria that ecology will use to assess whether a plan holder is prepared to respond to the maximum extent practicable to a worst case spill. Ecology will use planning standards for reviewing oil spill contingency plans and evaluating drills.
"Rail plan holder" means a person who submits and implements a railroad contingency plan consistent with RCW 90.56.210 on the person's own behalf or on behalf of one or more persons.
"Tank car" means a rail car, the body of which consists of a tank for transporting liquids.
"Worst case spill" means, in the case of a railroad, a spill that includes the entire fuel capacity of the locomotive and the entire cargo capacity of the largest number of cargo rail cars carried by the railroad, based on seven hundred fourteen barrels per tank car, complicated by adverse weather conditions unless ecology determines that a larger or smaller volume is more appropriate given a particular facility's site characteristics and storage, unique operations, industry spill history and transfer capacity.
PART II: OIL SPILL CONTINGENCY PLANS
Section A—Plan Submittal and Maintenance
NEW SECTION
WAC 173-186-100 Authority to submit contingency plan.
(1) A plan may be submitted by any of the following:
(a) The owner or operator of the railroad; or
(b) A person who has contracted with the railroad to provide containment and cleanup services and who has been approved by ecology.
(2) A person may submit a single integrated plan for more than one railroad provided that all requirements of this chapter are met.
(3) A contingency plan prepared for an agency of the federal government or another state that satisfies the requirements of this chapter may be accepted by ecology.
NEW SECTION
WAC 173-186-110 Submitting a railroad contingency plan.
(1) The rail plan holder shall submit two copies of the plan and all appendices. Electronic submission of plans is encouraged, provided it is in an electronic format acceptable to ecology. In the case of electronic submission, only one copy is necessary.
(2) Once the initial plan is approved, rail plan holders shall resubmit their plans to ecology every five years for review and approval.
(3) Ecology will maintain mailing address and electronic submittal instructions on the agency web site.
NEW SECTION
WAC 173-186-120 Phase-in dates for this chapter.
(1) Railroads that transport crude oil, currently operating in Washington, shall submit plans to ecology no more than ninety days after the effective date of this chapter; however, no later than within thirty days after the effective date of this chapter the rail plan holder shall provide ecology either a federal plan or the following information to demonstrate capability for response to oil spills:
(a) Contact information for the railroad.
(b) Notification procedures in case of spills to water.
(c) Description of rail operations in the state.
(d) Letter of intent with a primary response contractor.
If the plan covers operations in areas where geographic response plans do not currently exist, the plan will be submitted without that information and a timeline to develop interim resources at risk data will be developed together by the plan holder and ecology.
(2) Railroads exclusively transporting oils other than crude oil, currently operating in Washington, shall submit a plan to ecology or have enrolled in an integrated plan no more than one hundred eighty days after the effective date of this chapter; however, no later than within ninety days after the effective date of this chapter the rail plan holder shall provide ecology either a federal plan or the following information to demonstrate capability for response to oil spills:
(a) Contact information for the railroad.
(b) Notification procedures in case of spills to water.
(c) Description of rail operations in the state.
(d) Letter of intent with a primary response contractor.
(3) If upon initial plan review ecology determines that there is insufficient access to equipment described in WAC 173-186-310, railroads shall have no more than eighteen additional months after initial plan review to reach full compliance with the equipment planning standards.
(4) For rail plan holders exclusively transporting oils other than crude oils, a letter of intent with a contractor shall initially be sufficient to meet WAC 173-186-220. The rail plan holders shall then have an additional twelve months to secure a contract with a primary response contractor after initial plan approval.
NEW SECTION
WAC 173-186-130 Annual plan maintenance.
At least once annually, rail plan holders shall review the entire plan for accuracy and either:
(1) Update and submit the amended page(s) of the plan to ecology for review and approval; or
(2) If no plan changes are needed, provide a letter to ecology confirming that the existing plan is still accurate.
NEW SECTION
WAC 173-186-140 Significant changes to approved plans.
(1) At any point during the five year approval period, if there is a temporary or permanent significant change in the personnel or response equipment described in the plan, the rail plan holder shall:
(a) Notify ecology in writing within twenty-four hours of the change; and
(b) Provide both a schedule for the prompt return of the plan to full operational status and a proposal for any backfill to compensate for the temporary significant change. This proposal shall be reviewed and approved by ecology.
(2) Changes which are considered significant include:
(a) Loss of equipment that results in being out of compliance with any planning standard;
(b) Movement of greater than ten percent of available boom, storage, recovery, in situ burn or shoreline cleanup equipment out of the home base as depicted on the western regional response list (WRRL);
(c) Transfers of equipment to support spill response for out-of-region spills;
(d) Permanent loss of initial response personnel listed in command and general staff incident command system (ICS) positions provided in the plan;
(e) Permanent loss of personnel designated as the binding agreement signer;
(f) Changes in the oil types handled; permanent changes in storage capacity; changes in handling or transporting of an oil product;
(g) Changes in equipment ownership if used to satisfy a rail plan holder planning standard; or
(h) Modification or discontinuation of any mutual aid, letter of intent or contract or letter of agreement.
(3) Notification by facsimile or e-mail will be considered written notice.
(4) Failure to report significant changes in the plan could result in the loss of plan approval.
(5) If the proposed change to the plan is to be made permanent, the rail plan holder then shall have thirty calendar days from notification to ecology to distribute the amended page(s) of the contingency plan to ecology for review and approval.
(6) If ecology finds that, as a result of a change, the plan no longer meets approval criteria; ecology may place the plan into conditional approval or disapprove the plan.
NEW SECTION
WAC 173-186-150 Post-spill review and documentation procedures.
Rail plan holders are required to conduct post-spill review procedures to review both the effectiveness of the plan and make plan improvements. Debriefs with ecology and other participating agencies and organizations may be appropriate if unified command has been established during a spill, and are required when significant plan updates are identified or significant lessons can be recorded and implemented.
Section B—Contingency Plan Format, Content and Implementation
NEW SECTION
WAC 173-186-200 Contingency plan format requirements.
(1) Rail plan holders shall format and maintain plans to maximize their usefulness during a spill. Information shall be readily accessible and plans shall contain job aids, diagrams and checklists for maximum utility. Plans shall be formatted to allow replacement of pages with revisions without requiring replacement of the entire plan.
(2) Plans shall be divided into a system of numbered, tabbed chapters, sections and annexes/appendices. Each plan shall include a detailed table of contents based on chapter, section, and annex/appendix numbers and titles, as well as tables and figures.
(3) Where provided by ecology, an easy-to-use boilerplate plan for rail plan holders may be used.
NEW SECTION
WAC 173-186-210 Binding agreement.
(1) Each plan shall contain a written statement binding the rail plan holder to its use. Form number ECY 070-550 may be used.
(2) The binding agreement shall be signed by each of the following: (a) The rail plan holder, (b) the owner or operator, or a designee with authority to bind the owners and operators of the railroad covered by the plan.
(3) The plan holder shall submit the agreement with the plan and shall include the name, address, phone number, and if appropriate the e-mail address, and web site of the submitting party.
(4) In the statement, the signator shall:
(a) Verify acceptance of the plan and commit to a safe and immediate response to spills and to substantial threats of spills that occur in, or could impact Washington waters or Washington's natural, cultural and economic resources;
(b) Commit to having an incident commander in the state within six hours after notification of a spill;
(c) Commit to the implementation and use of the plan during a spill and substantial threat of a spill, and to the training of personnel to implement the plan;
(d) Verify authority and capability to make necessary and appropriate expenditures in order to implement plan provisions; and
(e) Commit to working in unified command within the ICS to ensure that all personnel and equipment resources necessary to the response will be called out to cleanup the spill safely and to the maximum extent practicable.
NEW SECTION
WAC 173-186-220 Contingency plan general content.
(1) Contingency plans shall include all of the content and meet all the requirements in this section.
(2) In Washington state, the Northwest Area Contingency Plan (NWACP) serves as the statewide master oil and hazardous substance contingency plan required by RCW 90.56.060. Rail plan holders shall write plans that refer to and are consistent with the NWACP.
(3) All contingency plans shall include the following:
(a) Each plan shall state the name, location, type and address of the facility and the federal or state requirements intended to be met by the plan.
(b) Each plan shall state the size of the worst case spill volume. If oil handling operations vary on different rail routes, more than one worst case spill volume may be submitted to ecology for consideration.
(c) Each plan shall have a log sheet to record revisions and updates to the plan. The log sheet shall identify each section amended, including the date and page of the amendment and the name of the authorized person making the change.
(d) Each plan shall have a table of contents and a cross-reference table reflecting the locations in the plan of each component required by this chapter.
(e) Each plan shall provide a list and map of expected rail routes in Washington and a description of the operations covered by the plan, including locations where fueling occurs and an inventory of above ground storage tanks and the tank capacities.
An inventory of above ground storage tanks and tank capacities is not required if the total above ground storage capacity from containers with capacity of at least fifty-five gallons is less than one thousand three hundred twenty gallons.
(f) Each plan shall list all oil cargo transported, including region of origin, oil types, physical properties, and health and safety hazards of the oil cargo. A safety data sheet (SDS) or equivalent information may satisfy some of these requirements; the plan shall identify where the SDS or equivalent is kept for emergency response use.
(g) Each plan shall have the PRC's name, address, phone number or other means of contact at any time of the day, and include:
(i) A contract or letter summarizing the terms of the contract signed by the PRC, shall be included in the plan. If the entire contract is not submitted, that document shall be available for inspection, if requested by ecology.
(ii) For mutual aid agreements that a rail plan holder relies on to meet the planning standards, the plan shall include a copy of the agreement and describe the terms of that document in the plan.
(h) Each plan shall contain information on the personnel (including contract personnel) who will be available to manage an oil spill response. This includes:
(i) An organizational diagram depicting the chain of command for the spill management team for a worst case spill.
(ii) An organization list of one primary and one alternate person to lead each ICS spill management position down to the section chief and command staff level as depicted in the NWACP standard ICS organizational chart. If a response contractor is used to fill positions, they shall agree in writing to staff the positions. If the entire contract for additional spill management team support is not included in the plan, that document shall be made available for inspection, if requested by ecology.
(iii) A detailed description of the planning process and job description for each spill management position; except if the rail plan holder follows without deviation the planning process or job descriptions contained in the NWACP. If the planning process or job descriptions are consistent with those contained in the NWACP, then the rail plan holder may reference the NWACP rather than repeat the information.
(iv) Include a description of the type and frequency of training that the spill management team receives, which shall include at a minimum ICS, NWACP policies, use and location of geographic response plans (GRPs), the contents of the plan and worker health and safety. New employees shall complete the training program prior to being assigned job responsibilities which require participation in emergency response situations.
(v) Identify a primary and alternate incident commander's representative that can form unified command at the initial command post, and if located out-of-state, a primary and alternate incident commander that could arrive at the initial command post within six hours.
(i) Each plan shall include procedures for immediately notifying appropriate parties that a spill or a substantial threat of a spill has occurred. The procedures shall establish a clear order of priority for immediate notification and include:
(i) A list of the names and phone numbers of required notifications to government agencies, response contractors and spill management team members. The notification section shall include names and phone numbers, except that the portion of the list containing internal call down information need not be included in the plan, but shall be available for review by ecology upon request and verified during spills and drills.
(ii) Identify the central reporting office or individuals responsible for implementing the notification process.
(iii) Include a form to document those notifications.
(j) Each plan shall contain the procedures to track and account for the entire volume of oil recovered and oily wastes generated and disposed of during spills. The responsible party shall provide waste disposal records to ecology upon request.
(k) Each plan shall state how an oil spill will be assessed for determining product type, potential spill volume, and environmental conditions including tides, currents, weather, river speed and initial trajectory as well as a safety assessment including air monitoring.
(i) Each plan shall list procedures that will be used to confirm the occurrence, and estimate the quantity and nature of the spill. An updated notification report is required if the initially reported estimated quantity or the area extent of the contamination changes significantly. Rail plan holders and responsible parties are required to document their initial spill actions and the plan shall include the forms that will be used for such documentation.
(ii) The plan shall contain a checklist that identifies significant steps used to respond to a spill, listed in a logical progression of response activities.
(l) Each plan shall include a description of the methods to be used to promptly assess spills with the potential to impact groundwater, including contact information in the plan for resources typically used to investigate, contain and remediate/recover spills to groundwater.
(m) Each plan shall include concise procedures to manage oil spill liability claims of damages to persons or property, public or private, for which a responsible party may be liable.
(n) Each plan shall include a description of the sensitive areas and a description of how environmental protection will be achieved, including containment, enhanced collection and diversion tactics.
(i) The plan shall include information on natural, cultural and economic resources, coastal and aquatic habitat types and sensitivity by season, breeding sites, presence of state or federally listed endangered or threatened species, and presence of commercial and recreational species, physical geographic features, including relative isolation of coastal regions, beach types, and other geological characteristics; public beaches, water intakes including both drinking and agricultural water supplies, private and public wells that supply drinking water, and marinas; shellfish resources, significant economic resources and vulnerable populations to be protected in the geographic area covered by the plan.
(ii) The GRPs have been developed to meet these requirements and plans may refer to the NWACP to meet these requirements. If railroad facilities occur in areas where descriptions of the sensitive areas and a description of how environmental protection will be achieved do not exist, railroad plan holders will submit summary descriptions of the sensitive areas and prepare booming strategy "control points" for waterways in the vicinity of the railroad tracks.
(o) Each plan shall identify potential initial command post locations.
(p) Each plan shall contain a description of how the rail plan holder meets each applicable planning standard in Section C of this chapter.
NEW SECTION
WAC 173-186-230 Field document.
(1) Each plan shall contain a field document which lists time critical information for the initial emergency phase of a spill or a substantial threat of a spill. The owner or operator of the railroad shall make the field document available to personnel who participate in oil handling operations and shall keep the field document in key locations for use during an initial response. The locations where field documents are kept shall be listed in the plan.
(2) At a minimum, the field document shall contain:
(a) Procedures to detect, assess and document the presence and size of a spill;
(b) Spill notification procedures; and
(c) The checklist that identifies significant steps used to respond to a spill, listed in a logical progression of response activities.
NEW SECTION
WAC 173-186-240 Plan implementation procedures.
Every rail plan holder is required to implement the ecology approved plan in any response to an oil spill and drill. A decision to use a different plan shall first be approved by the state and federal on-scene coordinators.
Section C—Planning Standards
NEW SECTION
WAC 173-186-300 Planning standards.
(1) Ecology shall apply a planning standard when determining the ability of a rail plan holder to meet the requirements of these regulations. The planning standards described in this chapter do not constitute cleanup standards nor response standards that must be met by the holder of a contingency plan. Failure to remove a discharge within the time periods set out in this chapter does not constitute failure to comply with a contingency plan, for purposes of this section or for the purpose of imposing administrative, civil, or criminal penalties under any other law.
In an actual spill event, initial deployment shall be guided by safety considerations. The responsible party shall address the entire volume of an actual spill regardless of the planning standards.
(2) Ecology will use the procedures described in WAC 173-182-345 and 173-182-348 to evaluate recovery capability required in these planning standards.
NEW SECTION
WAC 173-186-310 Equipment planning standards.
(1) The equipment necessary to address the worst case spill volume is brought to an incident over a period of time. The methodology to determine this is described in WAC 173-186-380 and 173-186-400. The spreadsheet referred to in WAC 173-186-380 will be used to demonstrate compliance with these equipment requirements.
(2) The following planning points shall be used to calculate the equipment access and timelines, as applicable to the plan holder. There shall be at least one planning point for each plan. If rail operates in an area where a planning point does not exist, ecology will develop one or more planning points during the plan review process.
(3) All rail plan holders shall demonstrate access to the equipment in the table below within the time frames identified based on the areas rail plan holders operate.
NEW SECTION
WAC 173-186-320 Maintenance records for oil spill response equipment.
Rail plan holders that own oil spill response equipment shall develop schedules, methods, and procedures for response equipment maintenance. Maintenance records shall be kept for at least five years and made available if requested by ecology. Equipment shall be listed on the WRRL or equivalent spreadsheet included in the contingency plan.
NEW SECTION
WAC 173-186-330 Planning standards for crude oils.
(1) Rail plan holders carrying, handling, storing, or transporting crude oils shall have a letter of intent with a primary response contractor that maintains the resources and/or capabilities necessary to respond to a spill of oil that may weather, and sink or submerge. Such equipment shall include, but is not limited to, the following:
(a) Sonar, sampling equipment or other methods to locate the oil on the bottom or suspended in the water column;
(b) Containment boom, sorbent boom, silt curtains, or other methods for containing the oil that may remain floating on the surface or to reduce spreading on the bottom;
(c) Dredges, pumps, or other equipment necessary to recover oil from the bottom and shoreline;
(d) Equipment necessary to assess the impact of such discharges; and
(e) Other appropriate equipment necessary to respond to a discharge involving the type of oil handled, stored, or transported.
(2) The equipment shall be capable of being on scene within twelve hours of spill notification.
NEW SECTION
WAC 173-186-340 Planning standards for in situ burning.
Based on the NWACP, plan holders operating in areas where in situ burning could be approved shall identify equipment for the use of in situ burning including locations of fire booms, air monitoring equipment, firefighting foam, igniters and aircraft or vessels to be used to deploy the igniters. These resources shall be capable of being on scene within twelve hours of spill notification.
NEW SECTION
WAC 173-186-350 Planning standards for shoreline cleanup.
Each rail plan holder shall identify and ensure the availability of response resources necessary to perform shoreline cleanup operations capable of being on scene within twenty-four hours of spill notification.
NEW SECTION
WAC 173-186-360 Planning standards for air monitoring to protect oil spill responders and the public.
Rail contingency plans shall include a narrative description of applicable federal, state, and local requirements and the plan holder's resources for conducting air monitoring to protect oil spill responders and the public, including:
(1) A description of how initial site characterization for responders will occur;
(2) A description of air monitoring instruments and detection limits that will be used when monitoring for public safety;
(3) A description of action levels for various oil constituents of concern based on products handled by the railroad (benzene, H2S, etc.);
(4) A description of how data management protocols and reporting time frames will be managed under unified command;
(5) A description of how communication methods to at-risk populations will be managed under unified command;
(6) A description of how evacuation zones and shelter-in–place criteria are established under unified command.
NEW SECTION
WAC 173-186-370 Planning standards for wildlife rescue and rehabilitation.
Each plan shall identify applicable federal, state and NWACP requirements for wildlife rescue and rehabilitation, and describe the equipment, personnel, resource and strategies for compliance with the requirements. These resources shall have the capability to arrive on scene within twenty-four hours of spill notification.
NEW SECTION
WAC 173-186-380 Documenting compliance with the planning standards.
(1) The rail plan holder shall describe how the planning standards found in this chapter are met.
(2) The rail plan holder shall include in the plan, a spreadsheet provided by ecology on the resources to meet the planning standards as described in this chapter. This spreadsheet shall account for boom, recovery systems, storage, and personnel by type, quantity, home base and provider.
(3) Ecology will use the process and criteria found in WAC 173-182-350 to analyze the spreadsheet.
Section D—Plan Evaluation
NEW SECTION
WAC 173-186-400 Plan evaluation criteria and alternative method of evaluating planning standards.
(1) Rail plan holders shall prepare a plan that demonstrates capability, to the maximum extent practicable, of promptly and properly removing oil and minimizing environmental damage from a variety of spill sizes, up to and including worst case spills. Ecology will evaluate plans using the process and criteria contained in WAC 173-182-610.
(2) A rail plan holder may request that ecology review and approve a plan using an alternative planning standard. Such requests should be submitted with the plan and shall be subject to a thirty day public review period and comment period which includes, but is not limited to, interested local and tribal governments and other stakeholders.
(a) The proposal shall include, at a minimum:
(i) A reference to which planning standard(s) in this chapter the proposal will be substituted for;
(ii) A detailed description of the alternative proposal including equipment, personnel, response procedures, and maintenance systems that are being proposed; and
(iii) An analysis of how the proposal offers equal or greater protection or prevention measures as compared to the requirement in this chapter.
(b) Ecology may approve the alternative compliance proposal if, based upon the documents submitted and other information available to the agency, it finds that:
(i) The alternative compliance proposal is complete and accurate; and
(ii) The alternative compliance proposal provides an equivalent or higher level of protection in terms of spill preparedness and response when compared with the planning standards found in this chapter.
(c) Ecology may reconsider an approval at any time, in response to lessons learned from spills, drills, and significant plan changes which indicated that the requirements of this section for approval are not met.
NEW SECTION
WAC 173-186-410 Oil spill contingency plan best achievable protection five-year review cycle.
Using the procedures and criteria outlined in WAC 173-182-621, ecology will review the planning standards at five-year intervals to ensure the maintenance of best achievable protection to respond to a worst case spill and provide for continuous operation of oil spill response activities to the maximum extent practicable and without jeopardizing crew safety.
NEW SECTION
WAC 173-186-420 Process for plan approval.
Rail owners or operators for new railroad operations shall submit plans to ecology no less than sixty-five days prior to their planned date for beginning of operations in Washington.
(1) Upon receipt of a plan, ecology shall evaluate whether the plan is complete, and if not, the rail plan holder shall be notified of any deficiencies within five business days. The public review and comment period does not begin until a complete plan is received.
(2) Once a plan has been determined to be complete, ecology shall notify interested parties, including local and tribal governments and make the plan available for public review and comment. Ecology will accept comments on the plan for a period of thirty days after the plan has been made publicly available. No later than sixty-five days from the date of public notice of availability, ecology will make a written determination either approving, conditionally approving, or disapproving the plan. The written determination will be provided in the form of an order and subject to appeal as specified in chapter 43.21B RCW.
(a) If the plan is approved, the rail plan holder will receive a certificate of plan approval and the plan expiration date. Approved plans shall be valid for five years.
(b) If the plan is conditionally approved, ecology may require a rail plan holder to operate under specific restrictions until unacceptable components of the plan are revised, resubmitted and approved. In the conditional approval ecology will describe:
(i) Each specific restriction and the duration for which it applies;
(ii) Each required item to bring the plan into compliance; and
(iii) The schedule for rail plan holders to submit required updates, including a reference to the regulatory standard in question.
Restrictions may include, but are not limited to, additional information for the plan or additional requirements to ensure availability of response equipment.
Conditional approval expires no later than eighteen months from date of issue at which time the rail plan holder shall need to request an extension, which is subject to public review.
Ecology shall revoke its conditional approval prior to the expiration date when a rail plan holder fails to meet the terms of the conditional approval. The revocation will be in the form of an appealable order.
(c) If the plan is disapproved, the rail plan holder shall receive an explanation of the factors.
(3) Ecology may review a plan following an actual spill or drill of a plan and may require revisions as appropriate.
(4) Public notice will be given of any approval, conditional approval, or disapproval of a plan.
NEW SECTION
WAC 173-186-430 Process for public notice and opportunity for public review and comment period.
(1) The purpose of this section is to specify the procedures for notifying the public which includes interested local and tribal governments about contingency plan status and decisions in order to provide opportunities for the public to review and comment.
(2) In order to receive notification of the public review and comment period, interested public, local, and tribal governments should sign up on the ecology e-mail list (listserv) for posting notice about plan review and comment. Ecology's web site will also be used to post notice of public review and comment periods.
(3) Public comment periods shall extend at least thirty days. Public notice, review, and comment periods are required in the following circumstances:
(a) Plan submittals for railroads that have never submitted a plan in Washington;
(b) Plan updates required by WAC 173-186-130;
(c) The submittal of plans for five-year review as required by WAC 173-186-110;
(d) Requests for an alternative planning standard in accordance with WAC 173-186-400;
(e) Rail plan holder requests for drill requirement waivers in accordance with WAC 173-186-540; and
(f) A permanent significant change to an approved plan.
(4) Public notice, review, and comment period are not required in the following circumstances:
(a) Routine updates to names, phone numbers, formatting, or forms that do not change the approved content of the plan;
(b) Plan updates to resubmit the binding agreement based on changes to the binding agreement signer; and
(c) Annual plan reviews that result in a letter to ecology confirming that the existing plan is still accurate.
PART III: DRILL AND EQUIPMENT VERIFICATION PROGRAM
NEW SECTION
WAC 173-186-500 Drill participation, scheduling and evaluation.
(1) Rail plan holders and PRCs shall participate in a drill and equipment verification program for the purpose of ensuring that all contingency plan components function to provide, to the maximum extent practicable, prompt and proper removal of oil and minimization of damage from a variety of spill sizes. In Washington, a modified triennial cycle for drills, as found in the National Preparedness for Response Exercise Program (NPREP), is relied on to test each component of the plan.
(2) Ecology's participation in drills: Rail plan holders and PRCs shall ensure ecology is provided an opportunity to help design and evaluate all tabletop and deployment drills for which the rail plan holder desires drill credit.
(3) Scheduling drills: Rail plan holders shall schedule drills on the NWACP area exercise calendar. Drill scheduling requirements are listed in the table in WAC 173-186-510.
(4) Evaluating drills: Ecology shall provide a written drill evaluation report to the rail plan holder following each drill. Credit will be granted for drill objectives that are successfully met.
(5) Objectives that are not successfully met shall be tested again and successfully demonstrated within the triennial cycle, except that significant failures will be retested within thirty days.
(6) Where plan deficiencies have been identified in the written evaluation, rail plan holders may be required to make specific amendments to the plan or conduct additional trainings to address the deficiencies.
(7) A rail plan holder may request an informal review with ecology of the ecology drill evaluation within thirty days of receipt of the report.
NEW SECTION
WAC 173-186-510 Type and frequency of drills.
To receive the credit from ecology for performing a required drill, the plan holder shall conduct the following drills within each triennial cycle.
(1) Tabletop drills: Tabletop drills are intended to demonstrate a rail plan holder's capability to manage a spill using the ICS. Role playing shall be required in this drill.
(a) During all required tabletop drills rail plan holders shall provide a master list of equipment and personnel identified to fill both command post and field operations roles.
(b) Once during each three year cycle, the rail plan holder shall ensure that key members of the regional/national "away" team as identified in the plan shall be mobilized in state for a tabletop drill. However, at ecology's discretion, team members that are out-of-state may be evaluated in out-of-state tabletop drills if ecology has sufficient notice, an opportunity to participate in the drill planning process, and provided that the out-of-state drills are of similar scope and scale to what would have occurred in state. In this case, key away team members shall be mobilized in this state at least once every six years.
(2) Deployment drills: Rail plan holders shall use deployment drills to demonstrate the actions they would take in a spill, including: Notifications, safety actions, environmental assessment, land-based tactics and equipment deployment.
(a) During the triennial cycle, deployment drills shall include a combination of rail plan holder owned assets, contracted PRC assets, and nondedicated assets.
(b) Rail plan holders should ensure that each type of dedicated equipment listed in the plan and personnel responsible for operating the equipment are tested during each triennial cycle.
(c) Rail plan holders shall design drills that will demonstrate the ability to meet the planning standards, including recovery systems and system compatibility and the suitability of the system for the operating environment. Drills shall be conducted in all operating environments that the rail plan holder could impact from spills.
(d) At least twice during a triennial cycle, rail plan holders shall deploy a GRP or sensitive area strategy identified within the plan.
(e) Rail plan holders may receive credit for deployment drills conducted by PRCs if:
(i) The PRC is listed in the plan; and
(ii) The rail plan holder operates in the area, schedules on the drill calendar, and participates in or observes the drill.
(3) Unannounced drills: Unannounced drills may be initiated by ecology when specific problems are noted with individual rail plan holders, or randomly, to strategically ensure that all operating environments, personnel and equipment readiness have been adequately tested.
(a) Immediately prior to the start of an unannounced drill, rail plan holders will be notified in writing of the drill objectives, expectations and scenario.
(b) Rail plan holders may request to be excused from an unannounced drill if conducting the drill poses an unreasonable safety or environmental risk, or significant economic hardship. If the rail plan holder is excused, ecology will conduct an unannounced drill at a future time.
(4) Wildlife deployment drills: Once every three years rail plan holders shall deploy regional mobile wildlife rehabilitation equipment and personnel necessary to set up the wildlife rehabilitation system found in the plan.
NEW SECTION
WAC 173-186-520 Drill evaluation criteria.
The ecology drill evaluation process is based on the 2016 NPREP guidance document. The NPREP guidance document lists fifteen core components that shall be demonstrated by the rail plan holder during the triennial cycle. Ecology adopts the fifteen core components as the criteria used to evaluate rail plan holder tabletop and deployment drills. The core components are as follows:
(1) Notifications: Test the notifications procedures identified in the plan.
(2) Staff mobilization: Demonstrate the ability to assemble the spill response organization identified in the plan.
(3) Ability to operate within the response management system described in the plan: This includes demonstration of the ICS staffing and process identified in the plan.
(4) Source control: Demonstrate the ability of the spill response organization to control and stop the discharge at the source, and to effectively coordinate source control activities within the response.
(5) Assessment: Demonstrate the ability of the spill response organization to provide an initial assessment of the discharge, or potential discharge, and provide continuing assessments of the effectiveness of the planning and tactical operations.
(6) Containment: Demonstrate the ability of the spill response organization to contain the discharge at the source or in various locations for recovery operations.
(7) Mitigation: Demonstrate the ability of the spill response organization to recover, mitigate, and remove the discharged product. This includes mitigation and removal activities such as dispersant use, in situ burn use, and bioremediation use, in addition to mechanical oil recovery.
(8) Protection: Demonstrate the ability of the spill response organization to protect the environmentally, culturally and economically sensitive areas identified in the NWACP and the plan.
(9) Disposal: Demonstrate the ability of the spill response organization to dispose of the recovered material and contaminated debris in compliance with guidance found in the NWACP.
(10) Communications: Demonstrate the ability to establish an effective communications system throughout the scope of the plan for the spill response organization.
(11) Transportation: Demonstrate the ability to provide effective multimodal transportation both for execution of the discharge and support functions.
(12) Personnel support: Demonstrate the ability to provide the necessary logistical support of all personnel associated with the response.
(13) Equipment maintenance and support: Demonstrate the ability to maintain and support all equipment associated with the response.
(14) Procurement: Demonstrate the ability to establish an effective procurement system.
(15) Documentation: Demonstrate the ability of the rail plan holder's spill management organization to document all operational and support aspects of the response and provide detailed records of decisions and actions taken.
NEW SECTION
WAC 173-186-530 Other ways to get drill credit.
(1) Drill credits for actual spills: Rail plan holders may request drill credit for a response to an actual spill, provided that ecology has an opportunity to participate during the spill and evaluate the spill response. Credit from spills shall not entirely alleviate the rail plan holder's responsibility to drill. To obtain credit:
(a) The plan holder shall submit a written request to ecology within sixty days of completion of the cleanup operations.
The request shall include documentation supporting the components of WAC 173-186-520.
(b) Within ninety days, the rail plan holder shall submit a lessons learned summary supporting the request for drill credit.
(2) Rail plan holders may request drill credit for out-of-state tabletop drills if:
(a) Ecology has been invited to attend the drill;
(b) Ecology has an opportunity to participate in the planning process for the drill. There shall be a meeting to discuss the scope and scale of the exercise, the drill objectives and the types of criteria for which Washington credit may be applicable;
(c) Documentation of the drill and self-certification documentation shall be provided to ecology within thirty days of the drill; and
(d) Rail plan holders seeking credit for a scheduled out-of-state drill shall use the drill calendar to schedule the drill at least ninety days in advance, to provide ecology an opportunity to participate.
NEW SECTION
WAC 173-186-540 Drill requirement waivers.
(1) Rail plan holders may request a waiver for deployment or tabletop drill requirements.
(2) The request shall be in writing and shall describe why a waiver should be considered and how the rail plan holder is meeting the purpose and intent of the drill program.
(3) Rail plan holder's requests for a drill waiver will be made available for public review and comment, including interested local and tribal governments and other stakeholders, for a period of thirty days.
(4) Ecology will evaluate the request and respond in writing within sixty calendar days of receipt of the waiver request.
PART IV: INSPECTION OF RECORDS, NONCOMPLIANCE, AND ENFORCEMENT
NEW SECTION
WAC 173-186-600 Inspection of records.
Ecology may verify compliance with this chapter by examining:
(1) Training and equipment maintenance records;
(2) Drill records;
(3) Accuracy of call-out and notification lists;
(4) Spill management team lists;
(5) ICS forms;
(6) Waste disposal records; and
(7) Post-spill reviews and other records on lessons learned.
NEW SECTION
WAC 173-186-610 Enforcement—Noncompliance.
(1) If an owner or operator of a railroad, a person, or rail plan holder is unable to comply with an approved contingency plan or otherwise fails to comply with requirements of this chapter, ecology may, at its discretion:
(a) Place conditions on plan approval.
(b) Require additional drills to demonstrate effectiveness of the plan.
(c) Revoke the approval status.
(2) Approval of a plan by ecology does not constitute an express assurance regarding the adequacy of the plan nor constitute a defense to liability imposed under state law.
(3) Any violation of this chapter may be subject to enforcement and penalty sanctions.
(4) Ecology may assess a civil penalty of up to one hundred thousand dollars against any person who is in violation of this chapter. Each day that a railroad is in violation of this chapter shall be considered a separate violation.
(5) Any person found guilty of willfully violating any of the provisions of this chapter, or any final written orders or directive of ecology or a court shall be deemed guilty of a gross misdemeanor and upon conviction shall be punished by a fine of up to ten thousand dollars and costs of prosecution, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment in the discretion of the court. Each day upon which a willful violation of the provisions of this chapter occurs may be deemed a separate and additional violation.
NEW SECTION
WAC 173-186-620 Severability.
If any provision of this chapter is held invalid, the remainder of the chapter is not affected.
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