PREPROPOSAL STATEMENT OF INQUIRY
Subject of Possible Rule Making: This rule making will amend the preassessment screening and oil spill compensation schedule (chapter 173-183 WAC) rule to:
| • | Update the monetary amount of compensation that can be calculated for spills of one thousand gallons or greater in volume. This will change the current range of $1 to $100 to a new range of $3 to $300 per gallon spilled. |
| • | Amend the mathematical formula multipliers contained in WAC 173-183-830, 173-183-840, 173-183-850 and 173-183-860, to reflect the above update. |
| • | Define persistent oil, nonpersistent oil, primary recovery liquids, secondary recovery liquids, and persistent oil recovery liquids. |
| • | Codify the method to provide credit back to a spiller for their early on-water recovery actions by moving the Resource Damage Assessment Committee Resolution 96-1.1 from guidance into rule (twenty-four hour recovery credit for nonpersistent oils). |
| • | Develop the method to provide credit back to a spiller for their early on-water recovery actions by now allowing for a forty-eight hour recovery credit for persistent oils. |
Statutes Authorizing the Agency to Adopt Rules on this Subject: RCW 90.48.366, 90.56.050, 90.48.035, and chapter 122, Laws of 2011 (E2SHB 1186).
Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: In April 2011, the legislature modified the natural resource damage assessment (NRDA) compensation range in RCW 90.48.366 for oil spills of one thousand gallons or more in volume to $3 to $300 per gallon of oil spilled. Current formula multipliers in WAC 173-183-830, 173-183-840, 173-183-850, and 173-183-860 are mathematically incapable of achieving the full range of compensation now required in state law. This rule making would amend the natural resource damage liability formula multipliers for calculation of damages from oil so that the full range of compensation provided in RCW 90.48.366 can be realized. Multiplier descriptions will show the new multiplier. Additionally, the legislature allowed a reduction in the amount of the assessment if spillers of persistent oil recover the spilled oil within forty-eight hours (recovery credit). Ecology currently uses a recovery credit method for all oil types recovered from the water within twenty-four hours. This rule making would move the current guidance method into rule and incorporate the new forty-eight hour requirement now set in law. Definitions for persistent oil, nonpersistent oil, primary recovery liquids, secondary recovery liquids, and persistent oil recovery liquids will be added to the rule.
Other Federal and State Agencies that Regulate this Subject and the Process Coordinating the Rule with These Agencies: The Washington resource damage assessment (RDA) committee is responsible for determining which method to use for assessing natural resource damages following an oil spill in state waters. The RDA committee includes representatives from the departments of ecology, fish and wildlife, natural resources, health, archaeology and historic preservation and the state parks and recreation commission. Federal trustee agencies that often attend RDA committee meetings include the National Oceanic and Atmospheric Administration and the United States Fish and Wildlife Service. Coordination and communication with these and other agencies regarding this rule making will occur through regular RDA committee meetings. Additionally, the United States Coast Guard (USCG) has shown interest in this rule making. Communications with the USCG about this rule making can happen during regularly scheduled quarterly meetings. Tribes have some trustee responsibilities. Ecology will communicate with them in regular updates sent by a listserv.
Process for Developing New Rule: This rule making is to amend an existing rule. Ecology is seeking input from the public, industry, environmental groups, and tribal, state, and federal representatives. A minimum of one public hearing will be conducted. The proposed amendments will be provided to all parties that have identified themselves as interested in this rule making, and will be posted on the internet at http://www.ecy.wa.gov/programs/spills/rules/main.html.
Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication by contacting Rebecca Post, Washington Department of Ecology Spills Program, P.O. Box 47600, Olympia, WA 98504, phone (360) 407-7114, fax (360) 407-7288, e-mail rulemaking2011@ecy.wa.gov.
July 6, 2011
David Byers
for Dale Jensen
Program Manager