S-4177.1  _______________________________________________

                    SUBSTITUTE SENATE BILL 6210

          _______________________________________________

State of Washington      56th Legislature     2000 Regular Session

By Senate Committee on Environmental Quality & Water Resources (originally sponsored by Senators Fraser, Morton, Eide, Jacobsen, Fairley, Prentice, McAuliffe, Winsley, Franklin, Kline, Spanel and Kohl‑Welles)

Read first time 01/26/00.

Making technical and clarifying amendments to oil spill prevention and response statutes.

    AN ACT Relating to technical and clarifying amendments relating to the oil spill prevention and response statutes; amending RCW 88.46.010, 88.46.020, 88.46.030, 88.46.040, 88.46.050, 88.46.060, 88.46.070, 88.46.080, 88.46.090, 88.46.100, 88.46.120, 88.46.160, 88.46.170, 88.46.200, 90.56.010, 90.56.060, 90.56.080, 90.56.100, 90.56.200, 90.56.210, 90.56.370, 90.56.510, 90.56.540, 90.56.560, and 82.23B.020; creating a new section; decodifying RCW 88.46.150; and repealing RCW 88.46.140, 90.56.903, 88.46.921, 88.46.922, 88.46.924, 88.46.925, 88.46.926, and 88.46.927.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

    Sec. 1.  RCW 88.46.010 and 1992 c 73 s 18 are each amended to read as follows:

    Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

    (1) (("Administrator" means the administrator of the office of marine safety created in RCW 43.21I.010.

    (2))) "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 ((administrator's)) 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.

    (((3))) (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 ((administrator)) director shall consider the effectiveness, engineering feasibility, and commercial availability of the technology.

    (((4))) (3) "Cargo vessel" means a self-propelled ship in commerce, other than a tank vessel or a passenger vessel, of three hundred or more gross tons, including but not limited to, commercial fish processing vessels and freighters.

    (((5))) (4) "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))) (5) "Covered vessel" means a tank vessel, cargo vessel, or passenger vessel.

    (((7))) (6) "Department" means the department of ecology.

    (((8))) (7) "Director" means the director of the department of ecology.

    (((9))) (8) "Discharge" means any spilling, leaking, pumping, pouring, emitting, emptying, or dumping.

    (((10))) (9)(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) retail motor vehicle motor fuel outlet; (iii) facility that is operated as part of an exempt agricultural activity as provided in RCW 82.04.330; (iv) underground storage tank regulated by the department or a local government under chapter 90.76 RCW; 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.

    (((11))) (10) "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.

    (((12))) (11) "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.

    (((13) "Office" means the office of marine safety established by RCW 43.21I.010.

    (14))) (12) "Oil" or "oils" means any naturally occurring liquid hydrocarbons at atmospheric temperature and pressure coming from the earth, including condensate and natural gasoline, and any fractionation thereof, including, but not limited to, crude oil, petroleum, gasoline, fuel oil, diesel oil, 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.

    (((15))) (13) "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.  "Offshore facility" does not include a marine facility.

    (((16))) (14) "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.

    (((17))) (15)(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.

    (((18))) (16) "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.

    (((19))) (17) "Person" means any political subdivision, government agency, municipality, industry, public or private corporation, copartnership, association, firm, individual, or any other entity whatsoever.

    (((20))) (18) "Ship" means any boat, ship, vessel, barge, or other floating craft of any kind.

    (((21))) (19) "Spill" means an unauthorized discharge of oil into the waters of the state.

    (((22))) (20) "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.

    (((23))) (21) "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.

    (((24))) (22) "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.

    Sec. 2.  RCW 88.46.020 and 1991 c 200 s 415 are each amended to read as follows:

    In carrying out the purposes of this chapter, including the adoption of rules for contingency plans, the ((administrator)) director shall to the greatest extent practicable implement this chapter in a manner consistent with federal law.

    Sec. 3.  RCW 88.46.030 and 1991 c 200 s 416 are each amended to read as follows:

    (1) All tank vessels entering the navigable waters of the state shall be subject to inspection to assure that they comply with all applicable federal and state standards.

    (2) The ((office)) department shall review the tank vessel inspection programs conducted by the United States coast guard and other federal agencies to determine if the programs as actually operated by those agencies provide the best achievable protection to the waters of the state.  If the ((office)) department determines that the tank vessel inspection programs conducted by these agencies are not adequate to protect the state's waters, it shall adopt rules for a state tank vessel inspection program.  The ((office)) department shall adopt rules providing for a random review of individual tank vessel inspections conducted by federal agencies.  The ((office)) department may accept a tank vessel inspection report issued by another state if that state's tank vessel inspection program is determined by the ((office)) department to be at least as protective of the public health and the environment as the program adopted by the ((office)) department.

    (3) The state tank vessel inspection program shall ensure that all tank vessels entering state waters are inspected at least annually.  To the maximum extent feasible, the state program shall consist of the monitoring of existing tank vessel inspection programs conducted by the federal government.  The ((office)) department shall consult with the coast guard regarding the tank vessel inspection program.  Any tank vessel inspection conducted pursuant to this section shall be performed during the vessel's scheduled stay in port.

    (4) Any violation of coast guard or other federal regulations uncovered during a state tank vessel inspection shall be immediately reported to the appropriate agency.

    Sec. 4.  RCW 88.46.040 and 1991 c 200 s 417 are each amended to read as follows:

    (1) The owner or operator for each tank vessel shall prepare and submit to the ((office)) department an oil spill prevention plan in conformance with the requirements of this chapter.  The plans shall be submitted to the ((office)) department in the time and manner directed by the ((office, but not later than January 1, 1993)) department.  The spill prevention plan may be consolidated with a spill contingency plan submitted pursuant to RCW 88.46.060.  The ((office)) department may accept plans prepared to comply with other state or federal law as spill prevention plans to the extent those plans comply with the requirements of this chapter.  The ((office)) department, by rule, shall establish standards for spill prevention plans.  ((The rules shall be adopted not later than July 1, 1992.))

    (2) The spill prevention plan for a tank vessel or a fleet of tank vessels operated by the same operator shall:

    (a) Establish compliance with the federal oil pollution act of 1990 and state and federal financial responsibility requirements, if applicable;

    (b) State all discharges of oil of more than twenty-five barrels from the vessel within the prior five years and what measures have been taken to prevent a reoccurrence;

    (c) Describe all accidents, collisions, groundings, and near miss incidents in which the vessel has been involved in the prior five years, analyze the causes, and state the measures that have been taken to prevent a reoccurrence;

    (d) Describe the vessel operations with respect to staffing standards;

    (e) Describe the vessel inspection program carried out by the owner or operator of the vessel;

    (f) Describe the training given to vessel crews with respect to spill prevention;

    (g) Establish compliance with federal drug and alcohol programs;

    (h) Describe all spill prevention technology that has been incorporated into the vessel;

    (i) Describe the procedures used by the vessel owner or operator to ensure English language proficiency of at least one bridge officer while on duty in waters of the state;

    (j) Describe relevant prevention measures incorporated in any applicable regional marine spill safety plan that have not been adopted and the reasons for that decision; and

    (k) Include any other information reasonably necessary to carry out the purposes of this chapter required by rules adopted by the ((office)) department.

    (3) The ((office)) department shall only approve a prevention plan if it provides the best achievable protection from damages caused by the discharge of oil into the waters of the state and if it determines that the plan meets the requirements of this section and rules adopted by the ((office)) department.

    (4) Upon approval of a prevention plan, the ((office)) department shall provide to the person submitting the plan a statement indicating that the plan has been approved, the vessels covered by the plan, and other information the ((office)) department determines should be included.

    (5) The approval of a prevention plan shall be valid for five years.  An owner or operator of a tank vessel shall notify the ((office)) department in writing immediately of any significant change of which it is aware affecting its prevention plan, including changes in any factor set forth in this section or in rules adopted by the ((office)) department.  The ((office)) department may require the owner or operator to update a prevention plan as a result of these changes.

    (6) The ((office)) department by rule shall require prevention plans to be reviewed, updated, if necessary, and resubmitted to the ((office)) department at least once every five years.

    (7) Approval of a prevention plan by the ((office)) department does not constitute an express assurance regarding the adequacy of the plan nor constitute a defense to liability imposed under this chapter or other state law.

    (8) This section does not authorize the ((office)) department to modify the terms of a collective bargaining agreement.

    Sec. 5.  RCW 88.46.050 and 1992 c 73 s 19 are each amended to read as follows:

    (1) In order to ensure the safety of marine transportation within the navigable waters of the state and to protect the state's natural resources, the ((administrator)) department shall adopt rules ((by July 1, 1992,)) for determining whether cargo vessels and passenger vessels entering the navigable waters of the state pose a substantial risk of harm to the public health and safety and the environment.

    (2) The rules ((adopted by the administrator pursuant to this section)) may include((, but are not limited to the following)):

    (a) Examining available information sources for evidence that a cargo or passenger vessel may pose a substantial risk to safe marine transportation or the state's natural resources.  Information sources may include:  Vessel casualty lists, United States coast guard casualty reports, maritime insurance ratings, the index of contingency plans compiled by the department of ecology, other data gathered by the ((office or the)) maritime commission, or any other resources;

    (b) Requesting the United States coast guard to deny a cargo vessel or passenger vessel entry into the navigable waters of the state, if the vessel poses a substantial environmental risk;

    (c) Notifying the state's spill response system that a cargo or passenger vessel entering the state's navigable waters poses a substantial environmental risk;

    (d) Inspecting a cargo or passenger vessel that may pose a substantial environmental risk, to determine whether the vessel complies with applicable state or federal laws.  Any vessel inspection conducted pursuant to this section shall be performed during the vessel's scheduled stay in port; and

    (e) Enforcement actions.

    Sec. 6.  RCW 88.46.060 and 1995 c 148 s 3 are each amended to read as follows:

    (1) Each covered vessel shall have a contingency plan for the containment and cleanup of oil spills from the covered vessel into the waters of the state and for the protection of fisheries and wildlife, natural resources, and public and private property from such spills.  The ((office)) department shall by rule adopt and periodically revise standards for the preparation of contingency plans.  The ((office)) department shall require contingency plans, at a minimum, to meet the following standards:

    (a) Include full details of the method of response to spills of various sizes from any vessel which is covered by the plan;

    (b) Be designed to be capable in terms of personnel, materials, and equipment, of promptly and properly, to the maximum extent practicable, as defined by the ((office)) department, removing oil and minimizing any damage to the environment resulting from a worst case spill;

    (c) Provide a clear, precise, and detailed description of how the plan relates to and is integrated into relevant contingency plans which have been prepared by cooperatives, ports, regional entities, the state, and the federal government;

    (d) Provide procedures for early detection of spills and timely notification of such spills to appropriate federal, state, and local authorities under applicable state and federal law;

    (e) State the number, training preparedness, and fitness of all dedicated, prepositioned personnel assigned to direct and implement the plan;

    (f) Incorporate periodic training and drill programs to evaluate whether personnel and equipment provided under the plan are in a state of operational readiness at all times;

    (g) Describe important features of the surrounding environment, including fish and wildlife habitat, environmentally and archaeologically sensitive areas, and public facilities.  The departments of ecology, fish and wildlife, and natural resources, and the office of archaeology and historic preservation, upon request, shall provide information that they have available to assist in preparing this description.  If the office ((has)) of marine safety adopted rules for contingency plans prior to July 1, 1992, the description of archaeologically sensitive areas shall only be required when the ((office)) department revises the rules for contingency plans after July 1, 1992.  The description of archaeologically sensitive areas shall not be required to be included in a contingency plan until it is reviewed and updated pursuant to subsection (9) of this section;

    (h) State the means of protecting and mitigating effects on the environment, including fish, marine mammals, and other wildlife, and ensure that implementation of the plan does not pose unacceptable risks to the public or the environment;

    (i) Establish guidelines for the use of equipment by the crew of a vessel to minimize vessel damage, stop or reduce any spilling from the vessel, and, only when appropriate and only when vessel safety is assured, contain and clean up the spilled oil;

    (j) Provide arrangements for the prepositioning of spill containment and cleanup equipment and trained personnel at strategic locations from which they can be deployed to the spill site to promptly and properly remove the spilled oil;

    (k) Provide arrangements for enlisting the use of qualified and trained cleanup personnel to implement the plan;

    (l) Provide for disposal of recovered spilled oil in accordance with local, state, and federal laws;

    (m) Until a spill prevention plan has been submitted pursuant to RCW 88.46.040, state the measures that have been taken to reduce the likelihood that a spill will occur, including but not limited to, design and operation of a vessel, training of personnel, number of personnel, and backup systems designed to prevent a spill;

    (n) State the amount and type of equipment available to respond to a spill, where the equipment is located, and the extent to which other contingency plans rely on the same equipment; and

    (o) If the department ((of ecology)) has adopted rules permitting the use of dispersants, the circumstances, if any, and the manner for the application of the dispersants in conformance with the department's rules.

    (2)(a) The owner or operator of a tank vessel of three thousand gross tons or more shall submit a contingency plan to the ((office)) department within six months after the ((office)) department adopts rules establishing standards for contingency plans under subsection (1) of this section.

    (b) Contingency plans for all other covered vessels shall be submitted to the ((office)) department within eighteen months after the ((office)) department has adopted rules under subsection (1) of this section.  The ((office)) department may adopt a schedule for submission of plans within the eighteen-month period.

    (3)(a) The owner or operator of a tank vessel or of the facilities at which the vessel will be unloading its cargo, or a Washington state nonprofit corporation established for the purpose of oil spill response and contingency plan coverage and of which the owner or operator is a member, shall submit the contingency plan for the tank vessel.  Subject to conditions imposed by the ((office)) department, the owner or operator of a facility may submit a single contingency plan for tank vessels of a particular class that will be unloading cargo at the facility.

    (b) The contingency plan for a cargo vessel or passenger vessel may be submitted by the owner or operator of the cargo vessel or passenger vessel, by the agent for the vessel resident in this state, or by a Washington state nonprofit corporation established for the purpose of oil spill response and contingency plan coverage and of which the owner or operator is a member.  Subject to conditions imposed by the ((office)) department, the owner, operator, or agent may submit a single contingency plan for cargo vessels or passenger vessels of a particular class.

    (c) A person who has contracted with a covered vessel to provide containment and cleanup services and who meets the standards established pursuant to RCW 90.56.240, may submit the plan for any covered vessel for which the person is contractually obligated to provide services.  Subject to conditions imposed by the ((office)) department, the person may submit a single plan for more than one covered vessel.

    (4) A contingency plan prepared for an agency of the federal government or another state that satisfies the requirements of this section and rules adopted by the ((office)) department may be accepted by the ((office)) department as a contingency plan under this section.  The ((office)) department shall assure that to the greatest extent possible, requirements for contingency plans under this section are consistent with the requirements for contingency plans under federal law.

    (5) In reviewing the contingency plans required by this section, the ((office)) department shall consider at least the following factors:

    (a) The adequacy of containment and cleanup equipment, personnel, communications equipment, notification procedures and call down lists, response time, and logistical arrangements for coordination and implementation of response efforts to remove oil spills promptly and properly and to protect the environment;

    (b) The nature and amount of vessel traffic within the area covered by the plan;

    (c) The volume and type of oil being transported within the area covered by the plan;

    (d) The existence of navigational hazards within the area covered by the plan;

    (e) The history and circumstances surrounding prior spills of oil within the area covered by the plan;

    (f) The sensitivity of fisheries and wildlife and other natural resources within the area covered by the plan;

    (g) Relevant information on previous spills contained in on-scene coordinator reports prepared by the director; and

    (h) The extent to which reasonable, cost-effective measures to prevent a likelihood that a spill will occur have been incorporated into the plan.

    (6) The ((office)) department shall approve a contingency plan only if it determines that the plan meets the requirements of this section and that, if implemented, the plan is capable, in terms of personnel, materials, and equipment, of removing oil promptly and properly and minimizing any damage to the environment.

    (7) The approval of the contingency plan shall be valid for five years.  Upon approval of a contingency plan, the ((office)) department shall provide to the person submitting the plan a statement indicating that the plan has been approved, the vessels covered by the plan, and other information the ((office)) department determines should be included.

    (8) An owner or operator of a covered vessel shall notify the ((office)) department in writing immediately of any significant change of which it is aware affecting its contingency plan, including changes in any factor set forth in this section or in rules adopted by the ((office)) department.  The ((office)) department may require the owner or operator to update a contingency plan as a result of these changes.

    (9) The ((office)) department by rule shall require contingency plans to be reviewed, updated, if necessary, and resubmitted to the ((office)) department at least once every five years.

    (10) Approval of a contingency plan by the ((office)) department does not constitute an express assurance regarding the adequacy of the plan nor constitute a defense to liability imposed under this chapter or other state law.

    Sec. 7.  RCW 88.46.070 and 1992 c 73 s 21 are each amended to read as follows:

    (1) The provisions of prevention plans and contingency plans approved by the ((office)) department pursuant to this chapter shall be legally binding on those persons submitting them to the ((office)) department and on their successors, assigns, agents, and employees.  The superior court shall have jurisdiction to restrain a violation of, compel specific performance of, or otherwise to enforce such plans upon application by the ((office)) department.  The ((office)) department may issue an order pursuant to chapter 34.05 RCW requiring compliance with a contingency plan or a prevention plan and may impose administrative penalties for failure to comply with a plan.

    (2) If the ((administrator)) director believes a person has violated or is violating or creates a substantial potential to violate the provisions of this chapter, the ((administrator)) director shall notify the person of the ((administrator's)) director's determination by registered mail.  The determination shall not constitute an order or directive under RCW 43.21B.310.  Within thirty days from the receipt of notice of the determination, the person shall file with the ((administrator)) director a full report stating what steps have been and are being taken to comply with the determination of the ((administrator)) director.  The ((administrator)) director shall issue an order or directive, as the ((administrator)) director deems appropriate under the circumstances, and shall notify the person by registered mail.

    (3) If the ((administrator)) director believes immediate action is necessary to accomplish the purposes of this chapter, the ((administrator)) director may issue an order or directive, as appropriate under the circumstances, without first issuing a notice or determination pursuant to subsection (2) of this section.  An order or directive issued pursuant to this subsection shall be served by registered mail or personally upon any person to whom it is directed.

    Sec. 8.  RCW 88.46.080 and 1992 c 73 s 22 are each amended to read as follows:

    (1) Except as provided in subsection (2) of this section, it shall be unlawful for the owner or operator to knowingly and intentionally operate in this state or on the waters of this state a covered vessel without an approved contingency plan or an approved prevention plan as required by this chapter, or financial responsibility in compliance with chapter 88.40 RCW and the federal oil pollution act of 1990.  The first conviction under this section shall be a gross misdemeanor under chapter 9A.20 RCW.  A second or subsequent conviction shall be a class C felony under chapter 9A.20 RCW.

    (2) It shall not be unlawful for the owner or operator to operate a covered vessel if:

    (a) The covered vessel is not required to have a contingency plan, spill prevention plan, or financial responsibility;

    (b) All required plans have been submitted to the ((office)) department as required by this chapter and rules adopted by the ((office)) department and the ((office)) department is reviewing the plan and has not denied approval; or

    (c) The covered vessel has entered state waters after the United States coast guard has determined that the vessel is in distress.

    (3) A person may rely on a copy of the statement issued by the ((office)) department pursuant to RCW 88.46.060 as evidence that a vessel has an approved contingency plan and the statement issued pursuant to RCW 88.46.040 that a vessel has an approved prevention plan.

    (4) Any person found guilty of willfully violating any of the provisions of this chapter, or any final written orders or directive of the ((administrator)) director or a court in pursuance thereof shall be deemed guilty of a gross misdemeanor, as provided in chapter 9A.20 RCW, and upon conviction thereof 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.

    Sec. 9.  RCW 88.46.090 and 1992 c 73 s 23 are each amended to read as follows:

    (1) Except as provided in subsection (4) of this section, it shall be unlawful for a covered vessel to enter the waters of the state without an approved contingency plan required by RCW 88.46.060, a spill prevention plan required by RCW 88.46.040, or financial responsibility in compliance with chapter 88.40 RCW and the federal oil pollution act of 1990.  The ((office)) department may deny entry onto the waters of the state to any covered vessel that does not have a required contingency or spill prevention plan or financial responsibility.

    (2) Except as provided in subsection (4) of this section, it shall be unlawful for a covered vessel to transfer oil to or from an onshore or offshore facility that does not have an approved contingency plan required under RCW 90.56.210, a spill prevention plan required by RCW 90.56.200, or financial responsibility in compliance with chapter 88.40 RCW and the federal oil pollution act of 1990.

    (3) The ((administrator)) director may assess a civil penalty of up to one hundred thousand dollars against the owner or operator of a vessel who is in violation of subsection (1) or (2) of this section.  Each day that the owner or operator of a covered vessel is in violation of this section shall be considered a separate violation.

    (4) It shall not be unlawful for a covered vessel to operate on the waters of the state if:

    (a) A contingency plan, a prevention plan, or financial responsibility is not required for the covered vessel;

    (b) A contingency plan and prevention plan has been submitted to the ((office)) department as required by this chapter and rules adopted by the ((office)) department and the ((office)) department is reviewing the plan and has not denied approval; or

    (c) The covered vessel has entered state waters after the United States coast guard has determined that the vessel is in distress.

    (5) Any person may rely on a copy of the statement issued by the ((office)) department to RCW 88.46.060 as evidence that the vessel has an approved contingency plan and the statement issued pursuant to RCW 88.46.040 as evidence that the vessel has an approved spill prevention plan.

    (6) Except for violations of subsection (1) or (2) of this section, any person who violates the provisions of this chapter or rules or orders adopted or issued pursuant thereto, shall incur, in addition to any other penalty as provided by law, a penalty in an amount of up to ten thousand dollars a day for each violation.  Each violation is a separate offense, and in case of a continuing violation, every day's continuance is a separate violation.  Every act of commission or omission which procures, aids, or abets in the violation shall be considered a violation under the provisions of this subsection and subject to penalty.  The penalty amount shall be set in consideration of the previous history of the violator and the severity of the violation's impact on public health and the environment in addition to other relevant factors.  The penalty shall be imposed pursuant to the procedures set forth in RCW 43.21B.300.

    Sec. 10.  RCW 88.46.100 and 1995 c 391 s 9 are each amended to read as follows:

    (1) In order to assist the state in identifying areas of the navigable waters of the state needing special attention, the owner or operator of a covered vessel shall notify the coast guard within one hour:

    (a) Of the disability of the covered vessel if the disabled vessel is within twelve miles of the shore of the state; and

    (b) Of a collision or a near miss incident within twelve miles of the shore of the state.

    (2) The state military department and the ((office)) department shall request the coast guard to notify the state military department as soon as possible after the coast guard receives notice of a disabled covered vessel or of a collision or near miss incident within twelve miles of the shore of the state.  The ((office)) department shall negotiate an agreement with the coast guard governing procedures for coast guard notification to the state regarding disabled covered vessels and collisions and near miss incidents.

    (3) The ((office)) department shall prepare a summary of the information collected under this section and provide the summary to the regional marine safety committees, the coast guard, and others in order to identify problems with the marine transportation system.

    (4) For the purposes of this section:

    (a) A tank vessel or cargo vessel is considered disabled if any of the following occur:

    (i) Any accidental or intentional grounding;

    (ii) The total or partial failure of the main propulsion or primary steering or any component or control system that causes a reduction in the maneuvering capabilities of the vessel;

    (iii) An occurrence materially and adversely affecting the vessel's seaworthiness or fitness for service, including but not limited to, fire, flooding, or collision with another vessel;

    (iv) Any other occurrence that creates the serious possibility of an oil spill or an occurrence that may result in such a spill.

    (b) A barge is considered disabled if any of the following occur:

    (i) The towing mechanism becomes disabled;

    (ii) The towboat towing the barge becomes disabled through occurrences defined in (a) of this subsection.

    (c) A near miss incident is an incident that requires the pilot or master of a covered vessel to take evasive actions or make significant course corrections in order to avoid a collision with another ship or to avoid a grounding as required by the international rules of the road.

    (5) Failure of any person to make a report under this section shall not be used as the basis for the imposition of any fine or penalty.

    Sec. 11.  RCW 88.46.120 and 1991 c 200 s 425 are each amended to read as follows:

    The ((office)) department may adopt rules including but not limited to standards for spill response equipment to be maintained on tank vessels.  The standards adopted under this section shall be consistent with spill response equipment standards adopted by the United States coast guard.

    Sec. 12.  RCW 88.46.160 and 1991 c 200 s 438 are each amended to read as follows:

    Any person or facility conducting ship refueling and bunkering operations, or the lightering of petroleum products, and any person or facility transferring oil between an onshore or offshore facility and a tank vessel shall have containment and recovery equipment readily available for deployment in the event of the discharge of oil into the waters of the state and shall deploy the containment and recovery equipment in accordance with standards adopted by the ((office)) department.  All persons conducting refueling, bunkering, or lightering operations, or oil transfer operations shall be trained in the use and deployment of oil spill containment and recovery equipment.  The ((office)) department shall adopt rules as necessary to carry out the provisions of this section.  The rules shall include standards for the circumstances under which containment equipment should be deployed.  An onshore or offshore facility shall include the procedures used to contain and recover discharges in the facility's contingency plan.  It is the responsibility of the person providing bunkering, refueling, or lightering services to provide any containment or recovery equipment required under this section.  This section does not apply to a person operating a ship for personal pleasure or for recreational purposes.

    Sec. 13.  RCW 88.46.170 and 1993 c 162 s 1 are each amended to read as follows:

    (1) The ((office)) department shall establish a field operations program to enforce the provisions of this chapter.  The field operations program shall include, but is not limited to, the following elements:

    (a) Education and public outreach;

    (b) Review of lightering and bunkering operations to prevent oil spills;

    (c) Evaluation and boarding of tank vessels for compliance with prevention plans prepared pursuant to this chapter;

    (d) Evaluation and boarding of covered vessels that may pose a substantial risk to the public health, safety, and the environment;

    (e) Evaluation and boarding of covered vessels for compliance with rules adopted by the ((office)) department to implement recommendations of regional marine safety committees; and

    (f) Collection of vessel information to assist in identifying vessels which pose a substantial risk to the public health, safety, and the environment.

    (2) The ((office)) department shall coordinate the field operations program with similar activities of the United States coast guard.  To the extent feasible, the ((office)) department shall coordinate its boarding schedules with those of the United States coast guard to reduce the impact of boardings on vessel operators, to more efficiently use state and federal resources, and to avoid duplication of United States coast guard inspection operations.

    (3) In developing and implementing the field operations program, the ((office)) department shall give priority to activities designed to identify those vessels which pose the greatest risk to the waters of the state.  The ((office)) department shall consult with the marine transportation industry, individuals concerned with the marine environment, other state and federal agencies, and the public in developing and implementing the program required by this section.

    Sec. 14.  RCW 88.46.200 and 1994 sp.s. c 9 s 854 are each amended to read as follows:

    The ((administrator)) director may appoint ad hoc, advisory marine safety committees to solicit recommendations and technical advice concerning vessel traffic safety.  The ((office)) department may implement recommendations made in regional marine safety plans that are approved by the ((office)) department and over which the ((office)) department has authority.  If federal authority or action is required to implement the recommendations, the ((office)) department may petition the appropriate agency or the congress.

    Sec. 15.  RCW 90.56.010 and 1992 c 73 s 31 are each amended to read as follows:

    For purposes of this chapter, the following definitions shall apply unless the context indicates otherwise:

    (1) (("Administrator" means the administrator of the office of marine safety created in RCW 43.21I.010.

    (2))) "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.

    (((3))) (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.

    (((4))) (3) "Board" means the pollution control hearings board.

    (((5))) (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.

    (((6))) (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.

    (((7))) (6) "Committee" means the preassessment screening committee established under RCW 90.48.368.

    (((8))) (7) "Covered vessel" means a tank vessel, cargo vessel, or passenger vessel.

    (((9))) (8) "Department" means the department of ecology.

    (((10))) (9) "Director" means the director of the department of ecology.

    (((11))) (10) "Discharge" means any spilling, leaking, pumping, pouring, emitting, emptying, or dumping.

    (((12))) (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.

    (((13))) (12) "Fund" means the state coastal protection fund as provided in RCW 90.48.390 and 90.48.400.

    (((14))) (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.

    (((15))) (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.

    (((16))) (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.

    (((17))) (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.

    (((18))) (17) "Oil" or "oils" means naturally occurring liquid hydrocarbons at atmospheric temperature and pressure coming from the earth, including condensate and natural gasoline, and any fractionation thereof, including, but not limited to, crude oil, petroleum, gasoline, fuel oil, diesel oil, 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.

    (((19))) (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.

    (((20))) (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.

    (((21))) (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.

    (((22))) (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.

    (((23))) (22) "Person" means any political subdivision, government agency, municipality, industry, public or private corporation, copartnership, association, firm, individual, or any other entity whatsoever.

    (((24))) (23) "Ship" means any boat, ship, vessel, barge, or other floating craft of any kind.

    (((25))) (24) "Spill" means an unauthorized discharge of oil or hazardous substances into the waters of the state.

    (((26))) (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.

    (((27))) (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.

    (((28))) (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.

    Sec. 16.  RCW 90.56.060 and 1991 c 200 s 107 are each amended to read as follows:

    (1) The department shall prepare and annually update a state-wide master oil and hazardous substance spill prevention and contingency plan.  In preparing the plan, the department shall consult with an advisory committee representing diverse interests concerned with oil and hazardous substance spills, including ((the office of marine safety,)) the United States coast guard, the federal environmental protection agency, state agencies, local governments, port districts, private facilities, environmental organizations, oil companies, shipping companies, containment and cleanup contractors, tow companies, and hazardous substance manufacturers.

    (2) The state master plan prepared under this section shall at a minimum:

    (a) Take into consideration the elements of oil spill prevention and contingency plans approved or submitted for approval pursuant to this chapter and chapter 88.46 RCW and oil and hazardous substance spill contingency plans prepared pursuant to other state or federal law or prepared by federal agencies and regional entities;

    (b) State the respective responsibilities as established by relevant statutes and rules of each of the following in the prevention of and the assessment, containment, and cleanup of a worst case spill of oil or hazardous substances into the environment of the state:  (i) State agencies; (ii) local governments; (iii) appropriate federal agencies; (iv) facility operators; (v) property owners whose land or other property may be affected by the oil or hazardous substance spill; and (vi) other parties identified by the department as having an interest in or the resources to assist in the containment and cleanup of an oil or hazardous substance spill;

    (c) State the respective responsibilities of the parties identified in (b) of this subsection in an emergency response;

    (d) Identify actions necessary to reduce the likelihood of spills of oil and hazardous substances;

    (e) Identify and obtain mapping of environmentally sensitive areas at particular risk to oil and hazardous substance spills; and

    (f) Establish an incident command system for responding to oil and hazardous substances spills.

    (3) In preparing and updating the state master plan, the department shall:

    (a) Consult with federal, provincial, municipal, and community officials, other state agencies, the state of Oregon, and with representatives of affected regional organizations;

    (b) Submit the draft plan to the public for review and comment;

    (c) Submit to the appropriate standing committees of the legislature for review, not later than November 1 of each year, the plan and any annual revision of the plan; and

    (d) Require or schedule unannounced oil spill drills as required by RCW 90.56.260 to test the sufficiency of oil spill contingency plans approved under RCW 90.56.210.

    Sec. 17.  RCW 90.56.080 and 1991 c 200 s 109 are each amended to read as follows:

    ((Not later than twelve months after May 15, 1991,)) The division of fire protection services shall establish and manage the Washington oil and hazardous substances incident response training and education program to provide approved classes in hazardous substance response, taught by trained instructors.  To carry out this program, the division of fire protection services shall:

    (1) Adopt rules necessary to implement the program;

    (2) Establish a training and education program by developing the curriculum to be used in the program in colleges, academies, and other educational institutions;

    (3) Provide training to local oil and hazardous materials emergency response personnel; and

    (4) Establish and collect admission fees and other fees that may be necessary to the program.

    Sec. 18.  RCW 90.56.100 and 1998 c 245 s 175 are each amended to read as follows:

    (1) The Washington wildlife rescue coalition ((shall be)) is established for the purpose of coordinating the rescue and rehabilitation of wildlife injured or endangered by oil spills or the release of other hazardous substances into the environment.

    (2) The Washington wildlife rescue coalition shall be composed of:

    (a) A representative of the department of fish and wildlife designated by the director of fish and wildlife.  The department of fish and wildlife shall be designated as lead agency in the operations of the coalition.  The coalition shall be chaired by the representative from the department of fish and wildlife;

    (b) A representative of the department of ecology designated by the director;

    (c) A representative of the ((department of community, trade, and economic development)) Washington military department emergency management ((program)) division, designated by the director of ((community, trade, and economic development)) the Washington military department;

    (d) A licensed veterinarian, with experience and training in wildlife rehabilitation, appointed by the veterinary board of governors;

    (e) ((The director of the Washington conservation corps;

    (f))) A lay person, with training and experience in the rescue and rehabilitation of wildlife appointed by the department; and

    (((g))) (f) A person designated by the legislative authority of the county where oil spills or spills of other hazardous substances may occur.  This member of the coalition shall serve on the coalition until wildlife rescue and rehabilitation is completed in that county.  The completion of any rescue or rehabilitation project shall be determined by the director of fish and wildlife.

    (3) The duties of the Washington wildlife rescue coalition ((shall be)) are to:

    (a) Develop an emergency mobilization plan to rescue and rehabilitate waterfowl and other wildlife that are injured or endangered by an oil spill or the release of other hazardous substances into the environment;

    (b) Develop and maintain a resource directory of persons, governmental agencies, and private organizations that may provide assistance in an emergency rescue effort;

    (c) Provide advance training and instruction to volunteers in rescuing and rehabilitating waterfowl and wildlife injured or endangered by oil spills or the release of other hazardous substances into the environment.  The training may be provided through grants to community colleges or to groups that conduct programs for training volunteers.  The coalition representatives from the agencies described in subsection (2) of this section shall coordinate their training efforts ((with the director of the Washington conservation corps)) and work to provide training opportunities for young citizens;

    (d) Obtain and maintain equipment and supplies used in emergency rescue efforts.

    (4)(a) Expenses for the coalition may be provided by the coastal protection fund administered according to RCW 90.48.400.

    (b) The coalition is encouraged to seek grants, gifts, or donations from private sources in order to carry out the provisions of this section and RCW 90.56.110.  Any private funds donated to the commission shall be deposited into the wildlife rescue account hereby created within the wildlife fund as authorized under Title 77 RCW.

    Sec. 19.  RCW 90.56.200 and 1991 c 200 s 201 are each amended to read as follows:

    (1) The owner or operator for each onshore and offshore facility shall prepare and submit to the department an oil spill prevention plan in conformance with the requirements of this chapter.  The plans shall be submitted to the department in the time and manner directed by the department((, but not later than January 1, 1993)).  The spill prevention plan may be consolidated with a spill contingency plan submitted pursuant to RCW 90.56.210.  The department may accept plans prepared to comply with other state or federal law as spill prevention plans to the extent those plans comply with the requirements of this chapter.  The department, by rule, shall establish standards for spill prevention plans.  ((The rules shall be adopted not later than July 1, 1992.))

    (2) The spill prevention plan for an onshore or offshore facility shall:

    (a) Establish compliance with the federal oil pollution act of 1990, if applicable, and financial responsibility requirements under federal and state law;

    (b) Certify that supervisory and other key personnel in charge of transfer, storage, and handling of oil have received certification pursuant to RCW 90.56.220;

    (c) Certify that the facility has an operations manual required by RCW 90.56.230;

    (d) Certify the implementation of alcohol and drug use awareness programs;

    (e) Describe the facility's maintenance and inspection program and contain a current maintenance and inspection record of the storage and transfer facilities and related equipment;

    (f) Describe the facility's alcohol and drug treatment programs;

    (g) Describe spill prevention technology that has been installed, including overflow alarms, automatic overflow cut-off switches, secondary containment facilities, and storm water retention, treatment, and discharge systems;

    (h) Describe any discharges of oil to the land or the water of more than twenty-five barrels in the prior five years and the measures taken to prevent a reoccurrence;

    (i) Describe the procedures followed by the facility to contain and recover any oil that spills during the transfer of oil to or from the facility;

    (j) Provide for the incorporation into the facility during the period covered by the plan of those measures that will provide the best achievable protection for the public health and the environment; and

    (k) Include any other information reasonably necessary to carry out the purposes of this chapter required by rules adopted by the department.

    (3) The department shall only approve a prevention plan if it provides the best achievable protection from damages caused by the discharge of oil into the waters of the state and if it determines that the plan meets the requirements of this section and rules adopted by the department.

    (4) Upon approval of a prevention plan, the department shall provide to the person submitting the plan a statement indicating that the plan has been approved, the facilities covered by the plan, and other information the department determines should be included.

    (5) The approval of a prevention plan shall be valid for five years.  An owner or operator of a facility shall notify the department in writing immediately of any significant change of which it is aware affecting its prevention plan, including changes in any factor set forth in this section or in rules adopted by the department.  The department may require the owner or operator to update a prevention plan as a result of these changes.

    (6) The department by rule shall require prevention plans to be reviewed, updated, if necessary, and resubmitted to the department at least once every five years.

    (7) Approval of a prevention plan by the department does not constitute an express assurance regarding the adequacy of the plan nor constitute a defense to liability imposed under this chapter or other state law.

    (8) This section does not authorize the department to modify the terms of a collective bargaining agreement.

    Sec. 20.  RCW 90.56.210 and 1992 c 73 s 33 are each amended to read as follows:

    (1) Each onshore and offshore facility shall have a contingency plan for the containment and cleanup of oil spills from the facility into the waters of the state and for the protection of fisheries and wildlife, natural resources, and public and private property from such spills.  The department shall by rule adopt and periodically revise standards for the preparation of contingency plans.  The department shall require contingency plans, at a minimum, to meet the following standards:

    (a) Include full details of the method of response to spills of various sizes from any facility which is covered by the plan;

    (b) Be designed to be capable in terms of personnel, materials, and equipment, of promptly and properly, to the maximum extent practicable, as defined by the department removing oil and minimizing any damage to the environment resulting from a worst case spill;

    (c) Provide a clear, precise, and detailed description of how the plan relates to and is integrated into relevant contingency plans which have been prepared by cooperatives, ports, regional entities, the state, and the federal government;

    (d) Provide procedures for early detection of oil spills and timely notification of such spills to appropriate federal, state, and local authorities under applicable state and federal law;

    (e) State the number, training preparedness, and fitness of all dedicated, prepositioned personnel assigned to direct and implement the plan;

    (f) Incorporate periodic training and drill programs to evaluate whether personnel and equipment provided under the plan are in a state of operational readiness at all times;

    (g) Describe important features of the surrounding environment, including fish and wildlife habitat, environmentally and archaeologically sensitive areas, and public facilities.  The departments of ecology, ((fisheries, wildlife)) fish and wildlife, and natural resources, and the office of archaeology and historic preservation, upon request, shall provide information that they have available to assist in preparing this description.  ((If the department has adopted rules for contingency plans prior to July 1, 1992, the description of archaeologically sensitive areas shall only be required when the department revises the rules for contingency plans after July 1, 1992.))  The description of archaeologically sensitive areas shall not be required to be included in a contingency plan until it is reviewed and updated pursuant to subsection (9) of this section;

    (h) State the means of protecting and mitigating effects on the environment, including fish, marine mammals, and other wildlife, and ensure that implementation of the plan does not pose unacceptable risks to the public or the environment;

    (i) Provide arrangements for the prepositioning of oil spill containment and cleanup equipment and trained personnel at strategic locations from which they can be deployed to the spill site to promptly and properly remove the spilled oil;

    (j) Provide arrangements for enlisting the use of qualified and trained cleanup personnel to implement the plan;

    (k) Provide for disposal of recovered spilled oil in accordance with local, state, and federal laws;

    (l) Until a spill prevention plan has been submitted pursuant to RCW 90.56.200, state the measures that have been taken to reduce the likelihood that a spill will occur, including but not limited to, design and operation of a facility, training of personnel, number of personnel, and backup systems designed to prevent a spill;

    (m) State the amount and type of equipment available to respond to a spill, where the equipment is located, and the extent to which other contingency plans rely on the same equipment; and

    (n) If the department has adopted rules permitting the use of dispersants, the circumstances, if any, and the manner for the application of the dispersants in conformance with the department's rules.

    (2)(a) The following shall submit contingency plans to the department within six months after the department adopts rules establishing standards for contingency plans under subsection (1) of this section:

    (i) Onshore facilities capable of storing one million gallons or more of oil; and

    (ii) Offshore facilities.

    (b) Contingency plans for all other onshore and offshore facilities shall be submitted to the department within eighteen months after the department has adopted rules under subsection (1) of this section.  The department may adopt a schedule for submission of plans within the eighteen-month period.

    (3)(a) The owner or operator of a facility shall submit the contingency plan for the facility.

    (b) A person who has contracted with a facility to provide containment and cleanup services and who meets the standards established pursuant to RCW 90.56.240, may submit the plan for any facility for which the person is contractually obligated to provide services.  Subject to conditions imposed by the department, the person may submit a single plan for more than one facility.

    (4) A contingency plan prepared for an agency of the federal government or another state that satisfies the requirements of this section and rules adopted by the department may be accepted by the department as a contingency plan under this section.  The department shall assure that to the greatest extent possible, requirements for contingency plans under this section are consistent with the requirements for contingency plans under federal law.

    (5) In reviewing the contingency plans required by this section, the department shall consider at least the following factors:

    (a) The adequacy of containment and cleanup equipment, personnel, communications equipment, notification procedures and call down lists, response time, and logistical arrangements for coordination and implementation of response efforts to remove oil spills promptly and properly and to protect the environment;

    (b) The nature and amount of vessel traffic within the area covered by the plan;

    (c) The volume and type of oil being transported within the area covered by the plan;

    (d) The existence of navigational hazards within the area covered by the plan;

    (e) The history and circumstances surrounding prior spills of oil within the area covered by the plan;

    (f) The sensitivity of fisheries and wildlife and other natural resources within the area covered by the plan;

    (g) Relevant information on previous spills contained in on-scene coordinator reports prepared by the department; and

    (h) The extent to which reasonable, cost-effective measures to prevent a likelihood that a spill will occur have been incorporated into the plan.

    (6) The department shall approve a contingency plan only if it determines that the plan meets the requirements of this section and that, if implemented, the plan is capable, in terms of personnel, materials, and equipment, of removing oil promptly and properly and minimizing any damage to the environment.

    (7) The approval of the contingency plan shall be valid for five years.  Upon approval of a contingency plan, the department shall provide to the person submitting the plan a statement indicating that the plan has been approved, the facilities or vessels covered by the plan, and other information the department determines should be included.

    (8) An owner or operator of a facility shall notify the department in writing immediately of any significant change of which it is aware affecting its contingency plan, including changes in any factor set forth in this section or in rules adopted by the department.  The department may require the owner or operator to update a contingency plan as a result of these changes.

    (9) The department by rule shall require contingency plans to be reviewed, updated, if necessary, and resubmitted to the department at least once every five years.

    (10) Approval of a contingency plan by the department does not constitute an express assurance regarding the adequacy of the plan nor constitute a defense to liability imposed under this chapter or other state law.

    Sec. 21.  RCW 90.56.370 and 1990 c 116 s 18 are each amended to read as follows:

    (1) Any person owning oil or having control over oil that enters the waters of the state in violation of RCW 90.56.320 shall be strictly liable, without regard to fault, for the damages to persons or property, public or private, caused by such entry.

    (2) In any action to recover damages resulting from the discharge of oil in violation of RCW 90.56.320, the owner or person having control over the oil shall be relieved from strict liability, without regard to fault, if that person can prove that the discharge was caused solely by:

    (a) An act of war or sabotage;

    (b) An act of God;

    (c) Negligence on the part of the United States government; or

    (d) Negligence on the part of the state of Washington.

    (3) The liability established in this section shall in no way affect the rights which:  (a) The owner or other person having control over the oil may have against any person whose acts may in any way have caused or contributed to the discharge of oil, or (b) the state of Washington may have against any person whose actions may have caused or contributed to the discharge of oil.

    (((4) The chapter 116, Laws of 1990 changes to subsection (2) of this section requiring the defenses in that subsection to be the sole causes of the discharge, and the text of subsection (2)(b) of this section shall apply prospectively and not retroactively after June 7, 1990.))

    Sec. 22.  RCW 90.56.510 and 1999 sp.s. c 7 s 2 are each amended to read as follows:

    (1) The oil spill ((administration)) prevention account is created in the state treasury.  All receipts from RCW 82.23B.020(2) shall be deposited in the account.  Moneys from the account may be spent only after appropriation.  The account is subject to allotment procedures under chapter 43.88 RCW.  If, on the first day of any calendar month, the balance of the oil spill response account is greater than nine million dollars and the balance of the oil spill ((administration)) prevention account exceeds the unexpended appropriation for the current biennium, then the tax under RCW 82.23B.020(2) shall be suspended on the first day of the next calendar month until the beginning of the following biennium, provided that the tax shall not be suspended during the last six months of the biennium.  If the tax imposed under RCW 82.23B.020(2) is suspended during two consecutive biennia, the department shall by November 1st after the end of the second biennium, recommend to the appropriate standing committees an adjustment in the tax rate.  For the biennium ending June 30, 1999, and the biennium ending June 30, 2001, the state treasurer may transfer a total of up to one million dollars from the oil spill response account to the oil spill ((administration)) prevention account to support appropriations made from the oil spill ((administration)) prevention account in the omnibus appropriations act adopted not later than June 30, 1999.

    (2) Expenditures from the oil spill ((administration)) prevention account shall be used exclusively for the administrative costs related to the purposes of this chapter, and chapters 90.48, 88.40, and 88.46 RCW.  Starting with the 1995-1997 biennium, the legislature shall give activities of state agencies related to prevention of oil spills priority in funding from the oil spill ((administration)) prevention account.  Costs of ((administration)) prevention include the costs of:

    (a) Routine responses not covered under RCW 90.56.500;

    (b) Management and staff development activities;

    (c) Development of rules and policies and the state-wide plan provided for in RCW 90.56.060;

    (d) Facility and vessel plan review and approval, drills, inspections, investigations, enforcement, and litigation;

    (e) Interagency coordination and public outreach and education;

    (f) Collection and administration of the tax provided for in chapter 82.23B RCW; and

    (g) Appropriate travel, goods and services, contracts, and equipment.

    Sec. 23.  RCW 90.56.540 and 1991 c 200 s 605 are each amended to read as follows:

    (1) A person is guilty of operating a vessel while under the influence of intoxicating liquor or drugs if the person operates a covered vessel within this state while:

    (a) The person has 0.06 grams or more of alcohol per two hundred ten liters of breath, as shown by analysis of the person's breath made under RCW ((88.16.230)) 90.56.550; or

    (b) The person has 0.06 percent or more by weight of alcohol in the person's blood as shown by analysis of the person's blood made under RCW ((88.16.230)) 90.56.550; or

    (c) The person is under the influence of or affected by intoxicating liquor or drugs; or

    (d) The person is under the combined influence of or affected by intoxicating liquor or drugs.

    (2) The fact that any person charged with a violation of this section is or has been entitled to use such drug under the laws of this state shall not constitute a defense against any charge of violating this section.

    (3) Operating a vessel while intoxicated is a class C felony under chapter 9A.20 RCW.

    Sec. 24.  RCW 90.56.560 and 1991 c 200 s 607 are each amended to read as follows:

    No physician, registered nurse, qualified technician, or hospital, or duly licensed clinical laboratory employing or using services of the physician, registered nurse, or qualified technician, may incur any civil or criminal liability as a result of the act of withdrawing blood from any person when directed by a law enforcement officer to do so for the purpose of a blood test under RCW ((88.16.230)) 90.56.550.  This section shall not relieve any physician, registered nurse, qualified technician, or hospital or duly licensed clinical laboratory from civil liability arising from the use of improper procedures or failing to exercise the required standard of care.

    Sec. 25.  RCW 82.23B.020 and 1999 sp.s. c 7 s 1 are each amended to read as follows:

    (1) An oil spill response tax is imposed on the privilege of receiving crude oil or petroleum products at a marine terminal within this state from a waterborne vessel or barge operating on the navigable waters of this state.  The tax imposed in this section is levied upon the owner of the crude oil or petroleum products immediately after receipt of the same into the storage tanks of a marine terminal from a waterborne vessel or barge at the rate of one cent per barrel of crude oil or petroleum product received.

    (2) In addition to the tax imposed in subsection (1) of this section, an oil spill administration tax is imposed on the privilege of receiving crude oil or petroleum products at a marine terminal within this state from a waterborne vessel or barge operating on the navigable waters of this state.  The tax imposed in this section is levied upon the owner of the crude oil or petroleum products immediately after receipt of the same into the storage tanks of a marine terminal from a waterborne vessel or barge at the rate of four cents per barrel of crude oil or petroleum product.

    (3) The taxes imposed by this chapter shall be collected by the marine terminal operator from the taxpayer.  If any person charged with collecting the taxes fails to bill the taxpayer for the taxes, or in the alternative has not notified the taxpayer in writing of the imposition of the taxes, or having collected the taxes, fails to pay them to the department in the manner prescribed by this chapter, whether such failure is the result of the person's own acts or the result of acts or conditions beyond the person's control, he or she shall, nevertheless, be personally liable to the state for the amount of the taxes.  Payment of the taxes by the owner to a marine terminal operator shall relieve the owner from further liability for the taxes.

    (4) Taxes collected under this chapter shall be held in trust until paid to the department.  Any person collecting the taxes who appropriates or converts the taxes collected shall be guilty of a gross misdemeanor if the money required to be collected is not available for payment on the date payment is due.  The taxes required by this chapter to be collected shall be stated separately from other charges made by the marine terminal operator in any invoice or other statement of account provided to the taxpayer.

    (5) If a taxpayer fails to pay the taxes imposed by this chapter to the person charged with collection of the taxes and the person charged with collection fails to pay the taxes to the department, the department may, in its discretion, proceed directly against the taxpayer for collection of the taxes.

    (6) The taxes shall be due from the marine terminal operator, along with reports and returns on forms prescribed by the department, within twenty-five days after the end of the month in which the taxable activity occurs.

    (7) The amount of taxes, until paid by the taxpayer to the marine terminal operator or to the department, shall constitute a debt from the taxpayer to the marine terminal operator.  Any person required to collect the taxes under this chapter who, with intent to violate the provisions of this chapter, fails or refuses to do so as required and any taxpayer who refuses to pay any taxes due under this chapter, shall be guilty of a misdemeanor as provided in chapter 9A.20 RCW.

    (8) Upon prior approval of the department, the taxpayer may pay the taxes imposed by this chapter directly to the department.  The department shall give its approval for direct payment under this section whenever it appears, in the department's judgment, that direct payment will enhance the administration of the taxes imposed under this chapter.  The department shall provide by rule for the issuance of a direct payment certificate to any taxpayer qualifying for direct payment of the taxes.  Good faith acceptance of a direct payment certificate by a terminal operator shall relieve the marine terminal operator from any liability for the collection or payment of the taxes imposed under this chapter.

    (9) All receipts from the tax imposed in subsection (1) of this section shall be deposited into the state oil spill response account.  All receipts from the tax imposed in subsection (2) of this section shall be deposited into the oil spill ((administration)) prevention account.

    (10) Within forty-five days after the end of each calendar quarter, the office of financial management shall determine the balance of the oil spill response account as of the last day of that calendar quarter.  Balance determinations by the office of financial management under this section are final and shall not be used to challenge the validity of any tax imposed under this chapter.  The office of financial management shall promptly notify the departments of revenue and ecology of the account balance once a determination is made.  For each subsequent calendar quarter, the tax imposed by subsection (1) of this section shall be imposed during the entire calendar quarter unless:

    (a) Tax was imposed under subsection (1) of this section during the immediately preceding calendar quarter, and the most recent quarterly balance is more than nine million dollars; or

    (b) Tax was not imposed under subsection (1) of this section during the immediately preceding calendar quarter, and the most recent quarterly balance is more than eight million dollars.

NEW SECTION. Sec. 26.  The section 18(2), chapter 116, Laws of 1990 changes requiring the defenses in that subsection to be the sole causes of the discharge, and the text of section 18(2)(b), chapter 116, Laws of 1990 shall apply prospectively and not retroactively after June 7, 1990.

NEW SECTION. Sec. 27.  RCW 88.46.150 (Tow boat standards--Study) is decodified.

NEW SECTION. Sec. 28.  The following acts or parts of acts are each repealed:

(1) RCW 88.46.140 (Unified and consistent planning) and 1991 c 200 s 428;

(2) RCW 90.56.903 (Report on implementation) and 1991 c 200 s 1109;

(3) RCW 88.46.921 (Office of marine safety abolished) and 1991 c 200 s 430;

(4) RCW 88.46.922 (Transfer of property and appropriations) and 1991 c 200 s 431;

(5) RCW 88.46.924 (Continuation of rules, pending business, and obligations) and 1991 c 200 s 433;

(6) RCW 88.46.925 (Prior acts valid) and 1991 c 200 s 434;

(7) RCW 88.46.926 (Apportionments of budgeted funds) and 1991 c 200 s 435; and

(8) RCW 88.46.927 (Collective bargaining agreements not altered) and 1993 c 281 s 67 & 1991 c 200 s 436.

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