Original Notice.

     Preproposal statement of inquiry was filed as WSR 11-14-110.

     Title of Rule and Other Identifying Information: Preassessment screening and oil spill compensation schedule regulations, chapter 173-183 WAC.

     Hearing Location(s): Hearing 1 - Marysville combined with a webinar, on September 25, 2012, at 3:00 p.m. - Presentation, question and answer session followed by the formal public hearing.

     Location: Holiday Inn Express, Skykomish Room, 8606 36th Avenue N.E., Marysville, WA 98270.

     How to comment by webinar during the September 25 Marysville hearing.

     Webinar: Ecology is also offering this presentation, question and answer session and formal public hearing via webinar. Webinars are an on-line meeting forum that you can attend from any computer using internet access. To participant [participate] by phone, you will need to have a phone or computer with phone modem capability. For more information and instructions, go to http://www.ecy.wa.gov/programs/spills/community_outreach/sppr_webinar.html.

     Comments: Ecology will accept formal comments at the Marysville location and through the webinar audio portion by calling (800) 704-9804/participant code (88955236#). For more information and instructions, go to http://www.ecy.wa.gov/programs/spills/community_outreach/sppr_webinar.html.

     To join the webinar click on the following link for more information and instructions http://www.ecy.wa.gov/programs/spills/community_outreach/sppr_webinar.html.

     Hearing 2 - Pasco, on September 26, 2012, at 6:00 p.m. - Presentation, question and answer session followed by the formal public hearing.

     Location: Columbia Basin College, Building B, Room B116, 2600 North 20th Avenue, Pasco, WA 99301.

     Date of Intended Adoption: December 14, 2012.

     Submit Written Comments to: Rebecca Post, P.O. Box 47600, Olympia, WA 98504, e-mail spillsrulemaking@ecy.wa.gov, fax (360) 407-7288, by October 4, 2012.

     Assistance for Persons with Disabilities: Contact Mary Ellen Voss, (360) 407-7211, by September 20, 2012. If you have hearing loss, call 711 for Washington relay service. If you have a speech disability, call (877) 833-6341.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This rule making will update the preassessment screening and oil spill compensation regulations, chapter 173-183 WAC to incorporate in the new requirements in chapter 122, Laws of 2011 (HB [E2SHB] 1186). The proposed amendments will do the following:

•	Update the monetary amount of compensation that can be calculated for spills of 1,000 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, nonpetroleum oil, recovered oil, and shoreline for the purposes of this rule.
•	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) and replacing the existing language in WAC 173-183-870.
•	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.

     Reasons Supporting Proposal: These updates are required by chapter 122, Laws of 2011 (HB [E2SHB] 1186) and because the rule updates move guidance into rule. Without these changes, the current formulas are incapable of achieving the full range of compensation required. The new law specifically addresses persistent oil and sets a time of forty-eight hours to get credit for recovered oil. The current guidance gives twenty-four hours for all oil types. The proposed language addresses these differences and moves all recovery credit guidance into rule.

     Statutory Authority for Adoption: RCW 90.48.366, 90.56.050, and 90.48.035.

     Statute Being Implemented: Chapter 90.48 RCW as modified by 2011 legislature - chapter 122, Laws of 2011 (E2SHB 1186).

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Washington state department of ecology, governmental.

     Name of Agency Personnel Responsible for Drafting and Enforcement: Rebecca Post, Department of Ecology, Headquarters, Lacey, Washington, (360) 407-7114; and Implementation: Dave Byers, Department of Ecology, Headquarters, Lacey, Washington, (360) 407-6974.

     A small business economic impact statement has been prepared under chapter 19.85 RCW.

     In 2011 the Washington legislature passed HB [E2SHB] 1186 and the bill was codified in state law (chapter 90.48 RCW). The legislation requires ecology to amend its current compensation schedule. Under the new law, the amount of compensation assessed for spills is between:

•	$1 and $100 per gallon of oil spilled when the spill is less than one thousand gallons.
•	$3 and $300 per gallon of oil spilled when the spill is equal to or more than one thousand gallons.

     Ecology's proposed rule language must achieve two things:

•	Make the monetary damage liability consistent with changes in HB [E2SHB] 1186.
•	Address how recovery credits are provided for "persistent" oil.

     The probable total quantifiable compliance costs likely resulting from the proposed rule amendments, discounted at an annual rate of 1.58 percent,¹ are shown in Table 1.

     Ecology calculates cost-to-employment ratios examining the relative impacts of the proposed rule on small versus large businesses. Ecology also considers the impacts of the proposed rule on local governments and other small public entities, to reflect the requirements in the Governor's Executive Order 10-06.² Other measures of business ability to cope with compliance costs (sales, hours of labor) are not sufficiently available for the representative set of affected businesses.

     Small businesses are defined as businesses with fewer than fifty employees, compared to the largest ten percent of all businesses, as required under the Regulatory Fairness Act (RCW 19.85.070). Ecology finds, as expected with constant costs per spill, that the smallest businesses experience the greatest per-employee costs on average. It costs $1,728.68 per employee under the NRDA baseline and $3,813.39 - $12,462.22 per employee under the RDA baseline. Large businesses pay an average of $2.34 per employee under the NRDA baseline and $5.16 - $16.86 per employee under the RDA baseline.

     Ecology includes rule components that help reduce costs for all businesses that take advantage of them within their other business decisions. We assume larger businesses will have larger total costs, and these cost savings will comprise a smaller relative percentage of those total costs. Therefore, these components will likely reduce small business costs by a larger percentage than for large business costs.

     Using Washington state office of financial management's input-output model of the state economy, ecology calculates the proposed rule is most likely to result in approximately 0.5249 jobs lost over twenty years under the NRDA baseline. Ecology also expects approximately 1.1579 - 3.7842 jobs lost over twenty years under the RDA baseline.

     Section 1: Background:

     Based on research and analysis required by the Regulatory Fairness Act, RCW 19.85.070, ecology determines the proposed rule amendments to chapter 173-183 WAC are likely to have a disproportionate impact on small business. Therefore, ecology includes cost-minimizing features in the rule where it is legal and feasible to do so.

     This document presents:

•	Background for the analysis of impacts on small business relative to other businesses.
•	Results of the analysis.
•	Cost-mitigating action taken by ecology.

     The intention is to read this with the associated cost-benefit analysis (Ecology Publication #12-08-008). The cost-benefit analysis contains more in-depth discussion of the methodology.

     A small business is defined as having fifty or fewer employees. Impacts are estimated by comparing the proposed rule amendments to the way natural resource damage is currently assessed.

     The existing regulatory environment is called the "baseline" in this document. It only includes existing regulation through laws and rules at the federal, state, and local levels.

     History: A spiller is liable for injuries to Washington's publicly-owned natural resources (e.g., fish, birds, beaches, parks, water quality, and recreational sites). They are responsible for the cost of restoring public resources to prespill levels. They are also responsible for compensating resource losses while the restoration takes place. The state quantifies these injuries through the NRDA process and scales them to restoration efforts of equal value. The value, expressed as a dollar amount, is called "damages." To determine damages, Washington uses a compensation schedule based on natural resource vulnerability, oil type, and volume of oil spilled.

     Spillers who quickly remove spilled oil from the water are eligible to receive credit for the amount of oil they clean up. This "recovery credit" recognizes the ecological benefits of early oil recovery and it provides an incentive for spillers to take immediate action when they have a spill.

     In 2011 the Washington state legislature passed HB [E2SHB] 1186 and the bill was codified in state law (chapter 90.48 RCW). The legislation requires ecology to amend its current compensation schedule. Under the new law, the amount of compensation assessed for spills is between:

•	$1 and $100 per gallon of oil spilled when the spill is less than one thousand gallons.
•	$3 and $300 per gallon of oil spilled when the spill is equal to or more than one thousand gallons.

     Ecology's proposed rule language must achieve two things:

•	Make the monetary damage liability consistent with changes in HB [E2SHB] 1186.
•	Address how recovery credits are provided for "persistent" oil.

     Regulatory baseline: The baseline is the regulatory context in the absence of the amendments being adopted. In most cases, the regulatory baseline is the existing rule. If there is no existing rule, the federal or local rule is the baseline. If there is no existing regulation at any level of government, the baseline is the statute authorizing the rule.

     The baseline for the proposed rule amendments to the NRDA rule is complex. There are multiple factors involved. These factors are:

•	The existing NRDA rule (chapter 173-183 WAC).
•	The statute authorizing the NRDA rule (chapter 90.48 RCW), as amended by HB [E2SHB] 1186 in 2011. There exist specific changes to the NRDA rule authorized by statute, which are not analyzed in the cost-benefit per RCW 34.05.328 (5)(b)(v).
•	The state RDA committee guidelines for reducing compensation amounts due to the early recovery action of the spiller (recovery credit). These guidelines have been used in Washington state since 1996, and are different from the existing NRDA rule.

     Below, ecology shows which changes are explicitly determined in statute. The changes ecology does not have discretion over are not analyzed. For the changes ecology does have discretion over, we compare to two baselines, the existing NRDA rule and the state RDA guidelines. The RDA guidelines are the most practical comparison containing the compensation schedule most closely followed in Washington state since 1996.³ They are also not the legal baseline however, as the RDA guidelines are not the existing rule. The existing NRDA rule compensation schedule has not been in practical use. Ecology compares the proposed rule to both baselines in order to provide the most reliable information to the public, but the legal comparison and determining factor is the existing NRDA rule. The comparison to the RDA guideline is meant to be informative.

     Changes under the proposed rule: Ecology analyzes the impacts of the following changes proposed to the NRDA rule.

•	Changes to the compensation schedule. Ecology excludes the change to the multiplier 'x' and the change allowing forty-eight hours for recovery of persistent oils because both are mandated in statute.
•	Changes that require testing of recovered oil. To receive credit the liable party is now required to chemically analyze the substance. They must submit the test results to ecology in order to determine the ratio of oil to water or oil to debris for credit.
•	Changes requiring testing of specific gravity. To receive the extra twenty-four hours (so they have forty-eight hours total to recover spilled persistent oil), the liable party must test the specific gravity of the oil to show it is in fact persistent.

     For more information about these changes, see the associated cost-benefit analysis for the proposed rule amendments (Ecology Publication #12-08-008).

     Section 2: Analysis of Compliance Costs for Washington Businesses: Ecology estimates the expected costs associated with the proposed amendments to the NRDA rule as described in Section 1: Background. The baseline is the regulatory circumstance in the absence of the proposed rule amendments adoption. The costs analyzed are associated with specific individual proposed amendments listed in Section 1: Background:

•	Compensation schedule.
•	Oil in water/debris testing.
•	Specific gravity testing.

     The RDA guidelines are the most practical comparison containing the compensation schedule most closely followed in Washington state since 1996. They are also not the legal baseline, as the RDA guidelines are not the existing rule. The existing NRDA rule compensation schedule has not been in practical use. Ecology compares the proposed rule to both baselines in order to provide the most reliable information to the public, but the legal comparison and determining factor is the existing NRDA rule.

     Ecology estimates present value compliance costs over twenty years in comparison to both the NRDA and RDA baselines. The total compliance costs over twenty years, discounted at an annual rate of 1.58 percent, appear in Table 2.

     Ecology estimates the per-spill costs from compliance with the proposed rule amendments. This means cost estimates and ranges are for the average spill. A constant cost range per spill leads to inherent estimation of disproportionate costs across differently-sized businesses. In this section, ecology summarizes compliance cost calculations (the full cost and benefit analyses are in the associated cost-benefit analysis, Ecology Publication #12-08-008).

     Ecology also discusses general qualities of businesses and compliance costs and the distribution of compliance costs across different business sizes.

     Compensation schedule compliance costs.

     NRDA Baseline: From the NRDA baseline, there is no discretionary compliance cost associated with the changes in compensation schedule. All discretionary changes result in fewer damages paid by liable parties.

     RDA Baseline: From the RDA baseline, when there is no containment, shoreline contact, and the spill extends past one thousand feet from the origin of the spill (4.6 percent of observations), a liable party pays greater damages under the proposed rule. Ecology estimates the average per-spill cost from its overall cost calculations as $98.39 - $506.60 in current dollar values assuming 31.83 spills per year based on historical data. The costs associated with spills occurring in the future are discounted at an annual rate of 1.58 percent.

     Oil in water/debris testing costs: Oil in water/debris testing costs are a change from both baselines. Ecology estimates the average per-spill cost of testing oil in water as $60.48. The average per-spill cost of testing oil in debris is $20.21. These estimates are based on historical data of recovery credit based on oil in water (twenty-two percent of all spills) or oil in debris (six percent of all spills). The total expected testing cost, per spill, for oil in water and oil in debris therefore equals $80.70 in current dollar values. The costs associated with spills occurring in the future are discounted at an annual rate of 1.58 percent.

     Specific gravity testing costs: Specific gravity testing costs are a change from both baselines. Ecology estimates the average per-spill cost of testing specific gravity as $0.89 in current dollar values. Ecology uses historical data of the ratio of liable parties spilling persistent oil (4.2 percent). The costs associated with spills occurring in the future are discounted at an annual rate of 1.58 percent.

     Cost per employee: Affected industries are comprised of any business with a risk of spilling oil to state surface waters. The proposed amendments may impact these businesses. Ecology identifies nineteen industries affected in the past using data from 2004-2011 (see Table 4). Any business that spills oil to state surface waters is affected; these are the only industries we are able to list with nonzero likelihood given our data. We believe the given codes illustrate the industries most likely affected.

     Ecology identifies the distribution of businesses across various employment-size categories. Each observation is associated with its respective business size. A single industry may have businesses comprised of different employment sizes. Businesses were identified across the full range of categories from one - four employees to over ten thousand employees.⁴

     The majority of businesses affected in our data are navigational services to shipping, which include tugboat services and cargo salvaging services.⁵ Other industries include fish and seafood merchant wholesalers, and the seafood canning industry (in order of likelihood).

     In accordance with small business economic impact statement (SBEIS) requirements in the Regulatory Fairness Act, ecology identifies the largest ten percent of businesses having to comply with the proposed rule amendments (see Table 3). The approximate largest ten percent of businesses employ between two hundred fifty and over ten thousand people each.⁶

     The weighted average of employment sizes for businesses with less than fifty employees is equal to approximately thirty employees. The smallest businesses experience greater per-employee costs (relative to the top ten percent of businesses). Their costs are $1,728.68 per employee under the NRDA baseline and $3,813.39 - $12,462.22 per employee under the RDA baseline.

     As a result, ecology believes the proposed rule imposes disproportionate costs on small businesses. We must then include in the proposed rule elements mitigating costs to small businesses (discussed in Section 4: Actions Taken to Reduce the Impact of the Rule on Small Business).

     The above analysis assumes there is no correlation between business size and the likelihood of an oil spill. For example, if large businesses are more likely to spill oil (if they deal in larger quantities of oil or more frequently use oil), then the disproportionate cost impact between small and large businesses is smaller.

     Section 4: Actions Taken to Reduce the Impact of the Rule on Small Business:

     Ecology has limited scope in this proposed rule making to reduce the impacts specifically to small business. In choosing the least burdensome means of facilitating compliance and protecting human health and the environment, ecology provides options to help small businesses reduce their compliance costs by greater percentages. We could not exempt small businesses from the remaining requirements to reduce costs, while fulfilling the goals and objectives of the law.

     The current oil recovery credit form (ECY 050-49)⁸ has been used in guidance since 1996. Ecology never required this form. The information it generated was given to us in order for a potentially liable party to get recovery credit. Since the form was not required, several clean-up contractors developed their own spreadsheets for documenting the required volumes. Some liable parties supplied incorrect information. This resulted in time spent resubmitting information. To avoid these types of errors, the new form is as explicit as possible. Areas requiring laboratory analysis for proper concentration or volume determinations are clearly marked. This should provide marginal cost savings. Liable parties may save time not resubmitting forms and increase their administrative efficiency.

     Under the proposed rule, liable parties may either squeeze their sorbent materials to determine the percentage of oil, or they may default to a percentage of seventy-five percent oil. Under either baseline, liable parties may either use the squeeze method to determine the percentage of oil, or they may haggle with ecology. There is conceivably a time savings from adopting a default. Ecology believes agents will act in their best interests, and squeeze if they believe their sorbent materials are comprised of greater than seventy-five percent oil. If businesses believe their sorbent materials are comprised of less than seventy-five percent oil, they may choose the default and receive more credit.

     From the NRDA baseline, there is a savings to liable parties from smaller damages. These savings were not mandated in statute. We assume larger businesses will have larger total costs, and these cost savings will comprise a smaller relative percentage of those total costs. Therefore, these components will likely reduce small business costs by a larger percentage than for large business costs.

     Section 5: The Involvement of Small Business in the Development of the Proposed Rule Amendments:

     During the CR-102 (informal rule-making phase) starting in January 2012, ecology convened a special rule advisory committee that provided informal comments on the draft regulation and advised ecology about how environmental, economic and other issues might be addressed. The committee met in May 2012 to specifically address this rule update. Committee members included invited representatives and observers from:

•	Oil handling facilities and oil shipping companies.
•	Umbrella oil spill contingency plan holders.
•	Spill response contractors.
•	Tug and towing companies.
•	Commercial fishing vessels.
•	Cargo and other shipping companies.
•	Commercial shellfish growers.
•	Commercial fisheries.
•	Washington ports.
•	Tribal governments.
•	Counties and cities.
•	Environmental organizations.
•	Recreational interests.
•	State and federal agencies.

     All the committee meetings were open to the public and available through webinar.

     Section 6: North American Industry Classification System (NAICS) Codes of Impacted Industries:

     This section lists NAICS codes for industries ecology expects to be impacted by the proposed rule amendments in Table 4. We derive these codes from our data set of sixty-six observations from 2004-2011. These observations are spills not missing data in our paper records. Out of a total of one hundred forty-five observations, fifty-four percent of the observations are missing data. Out of these sixty-six observations, twenty-three are individuals, and for ten observations we cannot find data on the given affected business.

     This is likely not a comprehensive list - rather, it illustrates the types of businesses we came across in the data from 2004-2011. Any business with the risk of spilling oil to state surface waters may be impacted by the proposed amendments.¹⁰ These are the only industries we are able to list with nonzero likelihood. We believe the given codes illustrate which industries are most likely to be affected.

     Section 7: Impacts on Jobs:

     Ecology uses the Washington state office of financial management's Washington input-output model.¹¹ The model accounts for inter-industry impacts and spending multipliers of earned income and changes in output. To estimate these impacts, ecology assumes the following distribution of affected industries: Sixty-five percent to water transportation, and thirty-five percent to fishing. Ecology makes these assumptions based on the data found in Appendix A, ignoring affected industries only appearing once on the list.¹² While more industries than the two above will likely be affected by the rule, we believe these two industries are likely the most impacted (they comprise approximately sixty percent of the observations we have data on, that are not individuals). Ecology believes this provides an accurate illustration of likely job impacts.

     Given the above assumptions, ecology expects approximately 0.5249 jobs lost over twenty years under the NRDA baseline. Ecology also expects approximately 1.1579 - 3.7842 jobs lost over twenty years under the RDA baseline.

     These are jobs directly lost within impacted industries, plus jobs lost in supporting industries (wholesale goods, energy, support services, transportation) and industries where labor income would be spent (retail, services, energy, housing, transportation).

     Works Cited:

     Department of Ecology, WA State. (2012). Ecology Publication #XX-XX-XXX: NRDA Cost-Benefit Analysis.

     Department of Ecology, WA State. (2004). ECY 050-49: Oil Recovery Credit Form.

     Gregoire, C. (2010). Executive Order 10-06: Suspending Non-Critical Rule Development and Adoption.

     RDA Committee. (2004). RDA Committee Resolution 96-1.1: Washington Oil Spill Compensation Schedule Credit for Oil Recovery.

     US Treasury Department. (2012). http://www.treasurydirect.gov/indiv/research/indepth/ibonds/res_ibonds_iratesandterms.htm. Retrieved from Rates and Inflation for I-Bonds, 1998-2011.

     WA State. (2009). Chapter 173-183 WAC: Oil Spill Natural Resource Damage Assessment.

     WA State. (2011). Chapter 90.48 RCW: Water Pollution Control.

     WA State Employment Security Department. (2012). Workforce Explorer. Retrieved from www.workforceexplorer.com

     WA State. (2011). House Bill 1186: Concerning requirements under the state's oil spill program.

     WA State. (2011). RCW 19.85.070: Regulatory Fairness Act.

     WA State. (2011). RCW 34.05: Administrative Procedure Act.

     WA State. (2010). RCW 90.58.030: Shoreline Management Act.

     Washington State Office of Financial Management. (n.d.). Input-Output Model. Retrieved from 2002: http://www.ofm.wa.gov/economy/io/2002/default.asp.

     ²Governor's Executive Order 10-06.

     ³The RDA guidelines are, as their name suggests, guidance, and in recent years, has incorporated aspects of the proposed rule (such as when there were data limitations that prevented calculation of the compensation schedule). As a result, the changes from either baseline estimated in this analysis are likely overestimates because in practice some changes (such as shoreline contact) have already been in use.

     ⁴Employment size categories available from Washington employment security department: 1-4, 5-9, 10-19, 20-49, 50-99, 100-249, 250-499, 500-999, 1,000-4,999, 5,000-9,999, and 10,000+ employees.

     ⁵Please see Appendix A for a table of industries impacted by frequency, comprised from our 2004-2011 data sets. These are listed by North American Industry Classification System (NAICS) codes. "Navigational Services to Shipping" and other capitalized industries correspond to a specific NAICS code.

     ⁶The largest ten percent actually comprises 10.8 percent of our total observations. Because ten percent of thirty-seven observations will give us 3.7 observations, we have rounded up to four.

     ⁷The employment sizes for the three observations greater than 10,000 employees are 17,468, 26,000, and 45,000, respectively. For each range we assume a uniform distribution - each employee size in that range is equally likely for an observation found in that range.

     ⁸Current Oil Recovery Credit Form.

     ⁹Please see Appendix A for a table of industries impacted by frequency, comprised from our 2004-2011 data sets.

     ¹⁰Unlikely industries may be commercial banks, or department stores - yet they both appear once in our data.

     ¹¹Please see the Washington state office of financial management's site for more information on the input-output model: http://www.ofm.wa.gov/economy/io/2002/default.asp.

     ¹²Assuming Inland Water Freight Transportation and Navigational Services to Shipping qualify as Water Transportation, while Seafood Canning and Fish and Seafood Merchant Wholesalers qualify as Fishing.

     A copy of the statement may be obtained by contacting Education and Outreach Specialist, Spills Program, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-7455, fax (360) 407-7288, e-mail spillsrulemaking@ecy.wa.gov.

     A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Education and Outreach Specialist, Spills Program, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-7455, fax (360) 407-7288, e-mail spillsrulemaking@ecy.wa.gov.

August 14, 2012

Polly Zehm

Deputy Director

OTS-4871.3

     (2) "Compensation schedule" means the set of procedures enumerated in WAC 173-183-300 through 173-183-870 to determine the public resource damages resulting from an oil spill for cases in which damages are not quantifiable at a reasonable cost.

     (3) "Damages" means the amount of monetary compensation necessary to:

     (a) Restore any injured public resource to its condition before sustaining injury as a result of an oil discharge in violation of chapter 90.48 or 90.56 RCW, to the extent technically feasible, including any loss in value incurred during the period between injury and restoration in cases where damages are quantifiable at a reasonable cost; or

     (b) Adequately compensate for the loss or diminution in value as determined through application of the compensation schedule provided in WAC 173-183-300 through 173-183-870 in cases where damages are not quantifiable at a reasonable cost.

     (4) "Department" means the department of ecology.

     (5) "Director" means the director of the department of ecology, or his or her designee.

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

     (7) "Estuarine environment" means the habitat and all other public resources associated with or dependent on estuarine waters of the state.

     (8) "Estuarine waters" or "estuarine waters of the state" means the waters within state jurisdiction that are semienclosed by land but have open, partly obstructed, or sporadic access to the ocean, and in which seawater is at least occasionally diluted by freshwater runoff from land. Estuarine waters of the state include adjacent tidal flats and beaches up to the limit of tidal inundation or wave splash. For purposes of this chapter, estuarine waters of the state include those designated on the map attached as Appendix 1 to this chapter, and the portion of the Columbia River estuary within state jurisdiction upstream to river mile 46 or the line drawn perpendicularly across the river which touches the upstream end of Puget Island.

     (9) "Freshwater stream, river, and lake environment" means the habitat and all other public resources associated with or dependent on the streams, rivers, and lakes under state jurisdiction.

     (10) "Freshwater wetland" or "freshwater wetlands" means lands transitional between terrestrial and freshwater aquatic systems where the water table is usually at or near the surface or the land is covered by shallow water, and lands having one or more of the following attributes at least periodically: The land supports predominantly hydrophytes; the substrate is predominately undrained hydric soil; and the substrate is nonsoil and saturated with water or covered by shallow water at some time during the growing season each year.

     (11) "Freshwater wetland environment" means the habitat and all other public resources associated with or dependent on the freshwater wetlands of the state.

     (12) "Freshwaters" or "freshwaters of the state" means all waters of the state except those classified as marine and estuarine waters of the state as defined in this chapter, including lakes, rivers, streams, ponds, other surface waters and wetlands.

     (13) "Habitat" means the substrate and complement of associated biota not otherwise included in the vulnerability rankings in the applicable compensation schedule(s) that is part of this chapter.

     (14) "Immediate removal" or "immediately removes" means removal of the spilled oil, or portions thereof, from the receiving environment by the potentially liable party within six hours of spill initiation.

     (15) "Initial department responder" means the department of ecology spill responder who first arrives at the scene of the spill.

     (16) "Injury" or "injuries" means an adverse change, either long- or short-term, to a public resource resulting either directly or indirectly from exposure to a discharge of oil in violation of chapter 90.48 or 90.56 RCW.

     (17) "Loss in services" means a temporary or permanent reduction in the ability of the resource to provide its use or benefit to the public or to other resources.

     (18) "Loss in value or lost value" of a damaged resource means the amount equal to the sum of consumptive, nonconsumptive, and indirect use values, as well as lost taxation, leasing, and licensing revenues during the period between injury and restoration; indirect use values may include existence, bequest, option, and aesthetic values.

     (19) "Marine and estuarine habitats" mean the habitats found in marine and estuarine waters of the state as defined in this chapter.

     (20) "Marine birds" means all seabirds, shorebirds, waterfowl, raptors and other avifauna that are dependent on marine and estuarine environments of the state for some portion of their life requirements including feeding, breeding, and habitat.

     (21) "Marine environment" means the habitat and all other public resources associated with or dependent on marine waters of the state.

     (22) "Marine fish," in context of the compensation schedule, means the species listed in Appendix 2.

     (23) "Marine mammals" means the cetaceans, pinnipeds, sea otters, and river otters associated with marine and estuarine waters of the state.

     (24) "Marine waters" or "marine waters of the state" means all coastal waters not appreciably diluted by freshwater, including open coastal areas, straits, and euhaline inland waters extending from the seaward limit of state jurisdiction to:

     (a) The landward limit of tidal inundation or wave splash; or

     (b) The seaward limit of estuarine waters of the state.

     (25) "Nonpersistent or group 1 oil" means:

     (a) A petroleum-based oil, such as gasoline, diesel or jet fuel, which evaporates relatively quickly. Such oil, at the time of shipment, consists of hydrocarbon fractions of which:

     (i) At least fifty percent, by volume, distills at a temperature of 340°C (645°F); and

     (ii) At least ninety-five percent, by volume, distills at a temperature of 370°C (700°F); or

     (b) A nonpetroleum oil with a specific gravity less than 0.8.

     (c) For the purposes of WAC 173-183-870, any spilled oil that consists of a combination of spilled nonpersistent and spilled persistent oil, will be considered a nonpersistent oil.

     (26) "Nonpetroleum oil" means oil of any kind that is not petroleum-based, including but not limited to: Biological oils such as fats and greases of animals and vegetable oils, including oils from seeds, nuts, fruits, and kernels.

     (27) "Not quantifiable at a reasonable cost" means any diminution in value of a public resource that cannot be measured with sufficient precision or accuracy by currently available and accepted procedures within a reasonable time frame.

     (((26))) (28) "Oil" or "oils" means oil of any kind that is liquid at atmospheric temperature and pressure and any fractionation thereof, including, but not limited to, crude oil, petroleum gasoline, fuel oil, diesel oil, oil sludge, oil refuse, biological oils and blends, and oil mixed with wastes other than dredged spoil. Oil does not include any substance listed in Table 302.4 of 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.

     (((27))) (29) "On scene coordinator" (OSC) means the department official who supervises the spill response team and compiles the initial report concerning the facts and circumstances of the spill for the department.

     (((28))) (30) "Persistent oil" means:

     (a) Petroleum-based oil that does not meet the distillation criteria for a nonpersistent oil. Persistent oils are further classified based on both specific and American Petroleum Institute (API) observed gravities corrected to 60°F, as follows:

     (i) Group 2 - Specific gravity greater than or equal to 0.8000 and less than 0.8500. API gravity less than or equal to 45.00 and greater than 35.0;

     (ii) Group 3 - Specific gravity greater than or equal to 0.8500, and less than 0.9490. API gravity less than or equal to 35.0 and greater than 17.5;

     (iii) Group 4 - Specific gravity greater than or equal to 0.9490 and up to and including 1.0. API gravity less than or equal to 17.5 and greater than 10.00; and

     (iv) Group 5 - Specific gravity greater than 1.0000. API gravity equal to or less than 10.0.

     (b) A nonpetroleum oil with a specific gravity of 0.8 or greater. These oils are further classified based on specific gravity as follows:

     (i) Group 2 - Specific gravity equal to or greater than 0.8 and less than 0.85;

     (ii) Group 3 - Specific gravity equal to or greater than 0.85 and less than 0.95;

     (iii) Group 4 - Specific gravity equal to or greater than 0.95 and less than 1.0; or

     (iv) Group 5 - Specific gravity equal to or greater than 1.0.

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

     (((29))) (32) "Potentially liable party" means the person or persons who may be liable for damages resulting from an oil spill.

     (((30))) (33) "Preassessment screening" means the investigation and determination of the facts and circumstances surrounding an oil spill which are used to determine whether a damage assessment investigation should be conducted, or alternatively, whether the compensation schedule will be used to assess damages.

     (((31))) (34) "Public resources" or "publicly owned resources" means fish, animals, vegetation, land, waters of the state, and other resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the state.

     (((32))) (35) "Reasonable cost" for a damage assessment means a cost that is anticipated to be less than the amount of damages that may have occurred or may occur.

     (((33))) (36) "Receiving environment" means waters of the state exposed to the spill and all public resources associated with or dependent on the exposed waters.

     (((34))) (37) "Recovered oil" is oil removed from the water using hand or mechanical techniques or oleophilic sorbent materials. It does not include spilled oil remobilized as a clean-up effort after shoreline contact and it does not include oil removed from the water's surface using dispersing or solidifying agents, or oil removed by burning.

     (38) "Resource damage assessment committee" or "RDA committee" means the preassessment screening committee established under RCW 90.48.368 and charged with determining whether to conduct detailed damage assessment studies or to apply the compensation schedule for oil spills into waters of the state, and overseeing reconnaissance and damage assessment activities.

     (((35))) (39) "Restoration or enhancement projects or studies" means an activity that is intended to restore, replenish, restock, or replace public resources, or to further investigate the long-term effect of resource injuries as determined by the RDA committee for the benefit of the public.

     (((36))) (40) "Salmon," in context of the compensation schedule, means the species listed in Appendix 3.

     (((37))) (41) "Scientific advisory board" means the advisory group established by the department to assist in development of the compensation schedule as required by RCW 90.48.366.

     (((38))) (42) "Season" or "seasons" means winter, spring, summer, and/or fall, where winter occurs during the months December through February, spring occurs during the months March through May, summer occurs during the months June through August, and fall occurs during the months September through November.

     (((39))) (43) "Shellfish," in context of the compensation schedule, means the species listed in Appendix 4, but does not include privately grown shellfish on public lands.

     (((40))) (44) "Shoreline" for the purposes of WAC 173-183-870 only, means any interface between the surface of the waters of the state, including wetlands, and sediment or soil.

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

     (((41))) (46) "State" means state of Washington.

     (((42))) (47) "State trustee agencies" means the state agencies with responsibility for protecting and/or managing public resources.

     (((43))) (48) "Subregion" or "subregions" means the areas into which state marine and estuarine waters have been divided for purposes of the compensation schedule as designated on the maps attached as Appendix 1.

     (((44))) (49) "Technical feasibility" or "technically feasible" means that given available technology, a restoration or enhancement project can be successfully completed at a cost that is not disproportionate to the value of the public resource before the injury.

     (((45))) (50) "Trust resources" means the public resource(s) under a particular state agency's jurisdiction for protection and/or management.

     (((46))) (51) "Unquantifiable damage" means any diminution in value of a public resource that cannot be measured with sufficient precision or accuracy by currently available and accepted procedures within a reasonable period of time.

     (((47))) (52) "Waters of the state" or "state waters" 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.

     (((48))) (53) "Wetland" or "wetlands" means lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface or the land is covered by shallow water, and lands having one or more of the following attributes at least periodically: The land supports predominantly hydrophytes; the substrate is predominantly undrained hydric soil; and the substrate is nonsoil and saturated with water or covered by shallow water at some time during the growing season each year.

[Statutory Authority: Chapters 90.56, 88.46, 90.48 RCW. 07-22-119 (Order 07-14), § 173-183-100, filed 11/7/07, effective 12/8/07. Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), § 173-183-100, filed 4/23/92, effective 5/24/92.]

     (2) Agencies with membership on the RDA committee shall nominate a representative and alternate to be appointed to the committee by the director.

     (3) The department of ecology shall chair the RDA committee.

     (4) The department may select representatives from the following agencies and governments for participation on the RDA committee on a spill-by-spill basis: Departments of emergency management, as well as other federal, state, and local agencies, and tribal and local governments whose presence would enhance reconnaissance or damage assessment activities of spill response.

     If a selected representative declines or is unable to participate on the committee, the representative shall provide written notice to the department within twelve hours of being notified so that a replacement member may be appointed. Prompt consideration will be given to other local, state, or federal agency, or tribal government requests for participation on the RDA committee on a spill-by-spill basis.

     (5) The RDA committee shall convene as soon as possible, but no later than thirty days after the department receives notification of a spill, or the next regularly scheduled meeting of the committee following a spill.

[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), § 173-183-230, filed 4/23/92, effective 5/24/92.]

     (2) Adequate compensation as determined from the compensation schedule is derived from preexisting information of resource vulnerability to a class of oil spilled in a particular subregion of the state during a particular season, plus any additional information collected at the reconnaissance stage of the spill response.

     (3) Under RCW 90.48.366, the amount of compensation assessed under this schedule shall be:

     (a) For spills totaling one thousand gallons or more in any one event, no less than three dollars per gallon of oil spilled and no greater than three hundred dollars per gallon of oil spilled; and

     (b) For spills totaling less than one thousand gallons in any one event, no less than one dollar per gallon of oil spilled and no greater than one hundred dollars per gallon of oil spilled.

[Statutory Authority: Chapters 90.56, 88.46, 90.48 RCW. 07-22-119 (Order 07-14), § 173-183-320, filed 11/7/07, effective 12/8/07. Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), § 173-183-320, filed 4/23/92, effective 5/24/92.]

     (1) A relative ranking for each of the classes of oil defined in this chapter as determined by their known chemical, physical, and mechanical properties, and other factors that may affect the severity and persistence of the spill on the receiving environment;

     (2) A relative vulnerability ranking of receiving environments which takes into account location of the spill, habitat and public resource sensitivity to oil, seasonal distribution of public resources, areas of recreational use and aesthetic importance, the proximity of the spill to important habitats for birds, aquatic mammals, fish, or to species listed as threatened or endangered under state or federal law, and other areas of special ecological or recreational importance as determined by the department;

     (3) A quantitative method for determining public resource damages resulting from an oil spill, based on the oil effects and vulnerability rankings designed to compensate the people of this state for those damages that cannot be quantified at a reasonable cost that result from oil spills; and

     (4) A method for adjusting damages calculated under the compensation schedule based on recovery actions taken by the potentially liable party ((that:

     (a) Demonstrate a recognition and affirmative acceptance of responsibility for the spill, such as the immediate removal of oil and the amount of oil removed from the environment; or

     (b) Enhance or impede the detection of the spill, the determination of the quantity of oil spilled, or the extent of damage, including the unauthorized removal of evidence such as injured fish or wildlife)).

[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), § 173-183-330, filed 4/23/92, effective 5/24/92.]

     (2) Marine and estuarine waters of the state excluding the Columbia River estuary are divided into sixteen regions and one hundred thirty-one subregions for purposes of RCW 90.48.366, as designated on the maps attached as Appendix 5 of this chapter.

     (3) A spill vulnerability score (SVS) shall be calculated at the time of a spill for the most sensitive subregion and season impacted by the spill. The SVS rates the vulnerability of public resources to spilled oil based on the propensity of the oil to cause acute toxicity and mechanical injury, and to persist in the environment. SVS is determined by summing the vulnerability scores for marine birds, marine mammals, fishery species, recreational use and habitats for the subregion(s) and most sensitive season impacted by the spill. The formula to be used to calculate SVS for each of the three oil effects, acute toxicity, mechanical injury, and persistence, is as follows:

     Spill vulnerability score (SVS)_ij=

HVS_i + BVS_j + MVS_j + MFVS_j + SFVS_j + SAVS_j + RVS_j

where	HVSi = habitat vulnerability to oil's propensity to cause i
	BVS = marine bird vulnerability score (WAC 173-183-420(3));
	MVS = marine mammal vulnerability score (WAC 173-183-460(3));
	MFVS = marine fisheries vulnerability score (WAC 173-183-430(3));
	SFVS = shellfish vulnerability score (WAC 173-183-440(3));
	SAVS = salmon vulnerability score (WAC 173-183-450(5));
	RVS = recreation vulnerability score (WAC 173-183-470(3));
	i = acute toxicity (AT), mechanical injury (MI), or persistence (((Per)) PER); and
	j = the most sensitive season affected by the spill: Spring, summer, fall, or winter

[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), § 173-183-400, filed 4/23/92, effective 5/24/92.]

     (a) Quantity and type of oil spilled;

     (b) Extent and location of the spill; ((and))

     (c) Whether containment of spilled oil was effective within the times specified in WAC 173-183-870 (1)(c) and (d);

     (d) Whether spilled oil contacted the shoreline within the times specified in WAC 173-183-870 (1)(c) and (d); and

     (e) The amount of oil cleaned up on a daily basis, and in total.

     (2) The RDA committee shall allow the potentially liable party an opportunity to submit further information on the determinations made by the OSC in subsection (1) of this section.

     (3) The potentially liable party (PLP) may hire an independent expert to determine the volume of oil spilled and ((cleaned up)) recovered, including the volume ((cleaned up)) recovered within the first ((six hours)) twenty-four hours for nonpersistent oil and forty-eight hours for persistent oil after spill initiation. The volume determinations made by the independent expert shall be used in calculations of damages under the compensation schedule if the independent expert selected is acceptable to both the PLP and the department. Determinations by the mutually agreed upon independent expert of the quantity of oil spilled and cleaned up shall be provided to the RDA committee chair within sixty days of the spill under consideration.

     (((3))) (4) The OSC ((or department responder)) shall provide the information enumerated in subsection (1) of this section to the RDA committee chair in a timely manner.

[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), § 173-183-810, filed 4/23/92, effective 5/24/92.]

     (a) The OSC as enumerated in WAC 173-183-810(1);

     (b) The mutually agreed upon independent expert, if applicable, as described in WAC 173-183-810(2); and

     (c) The RDA committee chair as enumerated in WAC 173-183-820 (1)(a).

     (2) In making the determination of percent-coverage of habitat types, the RDA committee chair may assume that the habitat-type visible at low tide extends out to the 20 meter depth contour.

     (3) Damages liability shall be calculated using the following formula:

((Damages ($) =
		gallons spilled* 0.208* [(OILAT*SVSAT,j) +
		(OILMI*SVSMI,j) + (OILPER*SVSPER,j)]
where:		gallons spilled = the number of gallons of oil spilled as determined by the procedures outlined in WAC 173-183-810;
		SVSi,j = spill vulnerability score (from WAC 173-183-400(3));
		OILAT = Acute Toxicity Score for Oil (from WAC 173-183-340);
		OILMI = Mechanical Injury Score for Oil (from WAC 173-183-340); and
		OILPER = Persistence Score for Oil (from WAC 173-183-340).
		i = acute toxicity, mechanical injury and persistence effect of oil
		j = the most sensitive season affected by the spill
		0.208 = multiplier to adjust the damages calculated to the $1-100 per gallon range.))

Damages ($) =
		x * [(OILAT *SVSATj *total gallons spilled) + (OILMI *SVSMIj *total gallons spilled) + (OILPER *SVSPERj*total gallons spilled)]
where:		total gallons spilled = the number of gallons of oil spilled as determined by the procedures outlined in WAC 173-183-810;
		SVSi,j = spill vulnerability score (from WAC 173-183-400(3));
		OILAT = Acute Toxicity Score for Oil (from WAC 173-183-340);
		OILMI = Mechanical Injury Score for Oil (from WAC 173-183-340); and
		OILPER = Persistence Score for Oil (from WAC 173-183-340).
		i = acute toxicity, mechanical injury and persistence effect of oil
		j = the most sensitive season affected by the spill
		x = multiplier of 0.208 for spills less than 1000 gallons in volume to adjust the damages calculated to the $1-100 per gallon range.
		x = multiplier of 0.624 for spills of 1000 gallons or more in volume to adjust the damages calculated to the $3-300 per gallon range.

     Formula results shall be rounded to the nearest 0.01 to determine damages liability as follows: Decimals less than 0.005 shall be rounded down, and decimals equal to or greater than 0.005 shall be rounded up. For spills less than one thousand gallons, when the formula results in damages less than one dollar per gallon, the damages shall be adjusted to the minimum of one dollar per gallon spilled. For spills of one thousand gallons or more in volume, when the formula results in damages less than three dollars per gallon, the damages shall be adjusted to the minimum of three dollars per gallon spilled.

[Statutory Authority: RCW 90.48.366, 90.56.050, and 90.48.035. 09-07-029 (Order 08-14), § 173-183-830, filed 3/10/09, effective 4/10/09. Statutory Authority: Chapter 90.48 RCW. 03-11-010 (Order 03-03), § 173-183-830, filed 5/12/03, effective 6/12/03; 92-10-005 (Order 91-13), § 173-183-830, filed 4/23/92, effective 5/24/92.]

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending Order 08-14, filed 3/10/09, effective 4/10/09)

WAC 173-183-840   Calculation of damages for spills into the Columbia River estuary.   (1) The formula provided in subsection (2) of this section shall be used to determine damages liability for spills into the estuarine waters of Columbia River. The value of the variables used in the formula shall be determined by:

     (a) The OSC as enumerated in WAC 173-183-810(1);

     (b) The mutually agreed upon independent expert, if applicable, as described in WAC 173-183-810(2); and

     (c) The RDA committee chair as enumerated in WAC 173-183-820 (1)(b).

     (2) Damages liability shall be calculated using the following formula:

((Damages ($) =
		gallons spilled*0.508*SVSj*(OILAT+OILMI+OILPER)
where:		gallons spilled = the number of gallons of oil spilled as determined by procedures outlined in WAC 173-183-810
		SVSj = spill vulnerability score (from WAC 173-183-500(3));
		j = the most sensitive season affected by the spill
		OILAT = Acute Toxicity Score for Oil (from WAC 173-183-360);
		OILMI = Mechanical Injury Score for Oil (from WAC 173-183-360); and
		OILPER = Persistence Score for Oil (from WAC 173-183-360).
		0.508 = multiplier to adjust the damages calculated to the $1-100 per gallon range.))

Damages ($) =
	x * [(OILAT *SVSj *total gallons spilled) + (OILMI *SVSj *total gallons spilled) + (OILPER *SVSj *total gallons spilled)]
where:	total gallons spilled = the number of gallons of oil spilled as determined by procedures outlined in WAC 173-183-810;
	SVSj = spill vulnerability score (from WAC 173-183-500(5));
	j = the most sensitive season affected by the spill
	OILAT = Acute Toxicity Score for Oil (from WAC 173-183-340);
	OILMI = Mechanical Injury Score for Oil (from WAC 173-183-340); and
	OILPER = Persistence Score for Oil (from WAC 173-183-340).
	x = multiplier of 0.508 for spills less than 1000 gallons in volume to adjust the damages calculated to the $1-100 per gallon range.
	x = multiplier of 1.524 for spills of 1000 gallons or more in volume to adjust the damages calculated to the $3-300 per gallon range.

     Formula results shall be rounded to the nearest 0.01 to determine damages liability as follows: Decimals less than 0.005 shall be rounded down, and decimals equal to or greater than 0.005 shall be rounded up. For spills less than one thousand gallons, when the formula results in damages less than one dollar per gallon, the damages shall be adjusted to the minimum of one dollar per gallon spilled. For spills of one thousand gallons or more in volume, when the formula results in damages less than three dollars per gallon, the damages shall be adjusted to the minimum of three dollars per gallon spilled.

[Statutory Authority: RCW 90.48.366, 90.56.050, and 90.48.035. 09-07-029 (Order 08-14), § 173-183-840, filed 3/10/09, effective 4/10/09. Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), § 173-183-840, filed 4/23/92, effective 5/24/92.]

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending Order 08-14, filed 3/10/09, effective 4/10/09)

WAC 173-183-850   Calculation of damages for spills in freshwater streams, rivers, and lakes.   (1) The formula provided in subsection (2) of this section shall be used to determine damages liability for spills into freshwater streams, rivers, and lakes. The value of the variables used in the formula shall be determined by:

     (a) The OSC as enumerated in WAC 173-183-810(1);

     (b) The mutually agreed upon independent expert, if applicable, as described in WAC 173-183-810(2); and

     (c) The RDA committee chair as enumerated in WAC 173-183-820 (1)(c).

     (2) Damages liability shall be calculated using the following formula:

((Damages ($) =
		gallons spilled* 0.162* SVS* (OILAT +OILMI + OILPER)
where:		gallons spilled = the number of gallons of oil spilled as determined by the procedures outlined in WAC 173-183-810;
		SVS = Spill vulnerability score [from WAC 173-183-600(3)];
		OILAT = Acute Toxicity Score for Oil [from WAC 173-183-340];
		OILMI = Mechanical Injury Score for Oil [from WAC 173-183-340]; and
		OILPER = Persistence Score for Oil [from WAC 173-183-340].
		0.162 = multiplier to adjust damages calculated to the $1-100 per gallon range;))

Damages ($) =
		x * [(OILAT *SVS *total gallons spilled) + (OILMI *SVS *total gallons spilled) + (OILPER *SVS *total gallons spilled)]
where:		total gallons spilled = the number of gallons of oil spilled as determined by the procedures outlined in WAC 173-183-810;
		SVS = Spill vulnerability score (from WAC 173-183-600(3));
		OILAT = Acute Toxicity Score for Oil (from WAC 173-183-340);
		OILMI = Mechanical Injury Score for Oil (from WAC 173-183-340); and
		OILPER = Persistence Score for Oil (from WAC 173-183-340).
		x = multiplier of 0.162 for spills less than 1000 gallons in volume to adjust the damages calculated to the $1-100 per gallon range.
		x = multiplier of 0.486 for spills of 1000 gallons or more in volume to adjust the damages calculated to the $3-300 per gallon range.

     Formula results shall be rounded to the nearest 0.01 to determine damages liability as follows: Decimals less than 0.005 shall be rounded down, and decimals equal to or greater than 0.005 shall be rounded up. For spills less than one thousand gallons, when the formula results in damages less than one dollar per gallon, the damages shall be adjusted to the minimum of one dollar per gallon spilled. For spills of one thousand gallons or more in volume, when the formula results in damages less than three dollars per gallon, the damages shall be adjusted to the minimum of three dollars per gallon spilled.

[Statutory Authority: RCW 90.48.366, 90.56.050, and 90.48.035. 09-07-029 (Order 08-14), § 173-183-850, filed 3/10/09, effective 4/10/09. Statutory Authority: Chapter 90.48 RCW. 03-11-010 (Order 03-03), § 173-183-850, filed 5/12/03, effective 6/12/03; 92-10-005 (Order 91-13), § 173-183-850, filed 4/23/92, effective 5/24/92.]

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending Order 08-14, filed 3/10/09, effective 4/10/09)

WAC 173-183-860   Calculation of damages for spills into freshwater wetlands.   (1) The formula provided in subsection (2) of this section shall be used to determine damages liability for spills into freshwater wetlands. The value of the variables used in the formula shall be determined by:

     (a) The OSC as enumerated in WAC 173-183-810(1);

     (b) The mutually agreed upon independent expert, if applicable, as described in WAC 173-183-810(2); and

     (c) The RDA committee chair as enumerated in WAC 173-183-820 (1)(d).

     (2) Damages liability shall be calculated using the following formula:

((Damages ($) =
		gallons spilled* 1.620* SVS* (OILAT +OILMI + OILPER)
where:		gallons spilled = the number of gallons of oil spilled as determined by procedures outlined in WAC 173-183-810;
		SVS = Spill vulnerability score [from WAC 173-183-700(3)];
		OILAT = Acute Toxicity Score for Oil [from WAC 173-183-340];
		OILMI = Mechanical Injury Score for Oil [from WAC 173-183-340]; and
		OILPER = Persistence Score for Oil [from WAC 173-183-340].
		1.620 = multiplier to adjust damages calculated to the $1-100 per gallon range;))

Damages ($) =
		x * [(OILAT *SVS *total gallons spilled) + (OILMI *SVS *total gallons spilled) + (OILPER *SVS *total gallons spilled)]
where:		total gallons spilled = the number of gallons of oil spilled as determined by the procedures outlined in WAC 173-183-810;
		SVS = Spill vulnerability score (from WAC 173-183-700(3));
		OILAT = Acute Toxicity Score for Oil (from WAC 173-183-340);
		OILMI = Mechanical Injury Score for Oil (from WAC 173-183-340); and
		OILPER = Persistence Score for Oil (from WAC 173-183-340).
		x = multiplier of 1.620 for spills less than 1000 gallons in volume to adjust the damages calculated to the $1-100 per gallon range.
		x = multiplier of 4.860 for spills of 1000 gallons or more in volume to adjust the damages calculated to the $3-300 per gallon range.

     Formula results shall be rounded to the nearest 0.01 to determine damages liability as follows: Decimals less than 0.005 shall be rounded down, and decimals equal to or greater than 0.005 shall be rounded up. For spills less than one thousand gallons, when the formula results in damages less than one dollar per gallon, the damages shall be adjusted to the minimum of one dollar per gallon spilled. For spills of one thousand gallons or more in volume, when the formula results in damages less than three dollars per gallon, the damages shall be adjusted to the minimum of three dollars per gallon spilled.

[Statutory Authority: RCW 90.48.366, 90.56.050, and 90.48.035. 09-07-029 (Order 08-14), § 173-183-860, filed 3/10/09, effective 4/10/09. Statutory Authority: Chapter 90.48 RCW. 03-11-010 (Order 03-03), § 173-183-860, filed 5/12/03, effective 6/12/03; 92-10-005 (Order 91-13), § 173-183-860, filed 4/23/92, effective 5/24/92.]

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending Order 91-13, filed 4/23/92, effective 5/24/92)

WAC 173-183-870   ((Modification of damages based on actions taken by the PLP.)) Reduction of damages based on actions taken by the potential liable party (PLP).   (((1) Damages calculated under WAC 173-183-830 through 173-183-860 may be reduced by the amounts specified in subsections (2) through (5) of this section, as determined by the RDA committee, in the following cases:

     (a) Where the potentially liable party takes an action that results in no spill exposure and no injury to the following special features: Seal and sea lion haulouts, public recreational areas, smelt, sand lance, and herring spawning areas, salmon concentration areas, hardshell and softshell clam beds, and seabird breeding colonies;

     (b) Where the potentially liable party takes an action that restores, rehabilitates, or enhances resources injured by the spill; and

     (c) Where the potentially liable party immediately booms spilled oil that has not come into contact with the shore, in areas where water depth is greater than twenty meters, and immediately removes the spilled oil that has been contained in booming.

     (2) When the conditions specified under subsection (1)(a) of this section are met, compensation shall be reduced by the amount that the special feature that was protected contributed to the amount of damages calculated under WAC 173-183-830 through 173-183-860. Decisions on how much the protected special feature contributed to the amount of damages calculated under the compensation schedule shall be made by the RDA committee.

     (3) When conditions specified under subsection (1)(b) of this section are met, amount of damages calculated under WAC 173-183-830 through 173-183-860 may be reduced. Decisions on reduction of damages shall be made by the RDA committee.

     (4) When the conditions specified under subsection (1)(c) of this section are met, the damages calculated under WAC 173-183-830 through 173-183-860 shall be reduced as described by the following steps:

     (a) Two separate damages calculations shall be made using the applicable damage liability formula(s) provided in WAC 173-183-830 through 173-183-860. The number of gallons used in the first formula shall be the number of gallons immediately removed from the receiving environment as described in subsection (1)(c) of this section. The number of gallons used the second formula shall be the number of gallons spilled but not immediately removed from the receiving environment. The values of all other formula variables shall be as defined for the applicable formulas in WAC 173-183-830 through 173-183-860, except as described in subsection (4)(b) of this section;

     (b) The values of the mechanical injury (OIL_MI) and persistence (OIL_PER) scores for oils shall be reduced by ten percent in the first formula; and

     (c) Damages derived from the first and second formulas shall be added together to calculate the reduced damages liability.

     (5) In no case shall the modifications to compensation enumerated in subsections (1) through (4) of this section result in a reduction of damages to less than one dollar per gallon of oil spilled.)) (1) Damages liability calculated under WAC 173-183-830 through 173-183-860 may be reduced by the RDA committee based on post-spill actions by the PLP. Post-spill actions by the PLP that the RDA committee will evaluate are:

     (a) Actions that result in effective containment of spilled oil, as determined by the state on-scene coordinator (OSC).

     (b) Actions that keep spilled oil from contacting the shoreline, as determined by the state on-scene coordinator (OSC).

     (c) Actions that recover spilled nonpersistent oil from the water's surface within twenty-four hours of the oil first entering the water. Spilled oil that consists of a combination of spilled nonpersistent and spilled persistent oil will be considered a nonpersistent oil.

     (d) Actions that recover spilled persistent oil from the surface of the water within forty-eight hours of the oil first entering the water.

     (2)(a) The RDA committee may only reduce resource damages under this section based on documented recovery data submitted to ecology by the PLP. The RDA committee may request additional information to facilitate recovery credit calculations. The data may be submitted on form number ECY-050-49, or other means that are acceptable to ecology. The submission may be electronic or other means that are acceptable to ecology. Measurement and documentation of recovered oil must be accomplished by the methods described in subsection (8) of this section, or as approved by the state OSC.

     (b) Along with the data submitted by the PLP, the PLP must also submit:

     (i) A statement signed and dated by the PLP or their representative, which states: "The data submitted are correct and accurate to the best of my knowledge."

     (ii)(A) A statement signed by the state OSC that containment was either effective or not effective; and

     (B) That spilled oil did or did not contact the shoreline;

     (iii) A statement signed and dated by the state OSC that states: "I accept the information provided by the PLP and attest to the recovery data provided."

     (c) The PLP must allow the state on-scene coordinator or their representative the opportunity to observe recovery credit calculation operations (storage, weighing, squeezing, and sampling).

     (3)(a) When the conditions specified under subsection (1)(a), (b), and (c) of this section are met, calculation of damages under WAC 173-183-830(3) is modified by having the mechanical injury and persistence components multiplied by the difference between the total gallons spilled, as determined by WAC 173-183-810, and the gallons of nonpersistent oil recovered from the water by spill responders within twenty-four hours, such that:

Damages ($) = x * [(SVSATj*OilAT*total gallons spilled) + (SVSMIj*OilMI *{total gallons spilled - gallons recovered in 24 hours}) + (SVSPERj*OilPER*{total gallons spilled - gallons recovered in 24 hours})]

x = appropriate multiplier as determined in WAC 173-183-830(3).

     (b) When the conditions specified under subsection (1)(a), (b), and (c) of this section are met, calculation of damages under WAC 173-183-840(2) is modified by having the mechanical injury and persistence components multiplied by the difference between the total gallons spilled, as determined by WAC 173-183-810, and the gallons of nonpersistent oil recovered from the water by spill responders within twenty-four hours, such that:

Damages ($) = x * [(SVSj*OilAT*total gallons spilled) + (SVSj*OilMI*{total gallons spilled - gallons recovered in 24 hours}) + (SVSj*OilPER*{total gallons spilled - gallons recovered in 24 hours})]

x = appropriate multiplier as determined in WAC 173-183-840(2).

     (c) When the conditions specified under subsection (1)(a), (b), and (c) of this section are met, calculation of damages under WAC 173-183-850(2) and 173-183-860(2) is modified by having the mechanical injury and persistence components multiplied by the difference between the total gallons spilled, as determined by WAC 173-183-810, and the gallons of nonpersistent oil recovered from the water by spill responders within twenty-four hours, such that:

Damages ($) = x * [(SVS*OilAT*total gallons spilled) + (SVS*OilMI*{total gallons spilled - gallons recovered in 24 hours} + (SVS*OilPER*{total gallons spilled - gallons recovered in 24 hours})]

x = appropriate multiplier as determined in WAC 173-183-850(2) or 173-183-860(2).

     (4)(a) When only the conditions specified under subsection (1)(c) of this section are met, calculation of damages under WAC 173-183-830(3) is modified by having the persistence components multiplied by the difference between the total gallons spilled and the gallons of nonpersistent oil recovered from the water by spill responders within twenty-four hours, such that:

Damages ($) = x * [(SVSATj*OilAT*total gallons spilled) + (SVSMIj*OilMI*total gallons spilled) + (SVSPERj*OilPER*{total gallons spilled - gallons recovered in 24 hours})]

x = appropriate multiplier as determined in WAC 173-183-830(3).

     (b) When only the conditions specified under subsection (1)(c) of this section are met, calculation of damages under WAC 173-183-840(2) is modified by having the persistence components multiplied by the difference between the total gallons spilled and the gallons of nonpersistent oil recovered from the water by spill responders within twenty-four hours, such that:

Damages ($) = x * [(SVSj*OilAT*total gallons spilled) + (SVSj*OilMI*total gallons spilled) + (SVSj*OilPER*{total gallons spilled - gallons recovered in 24 hours})]

x = appropriate multiplier as determined in WAC 173-183-840(2).

     (c) When only the conditions specified under subsection (1)(c) of this section are met, calculation of damages under WAC 173-183-850(2) and 173-183-860(2), is modified by having the persistence components multiplied by the difference between the total gallons spilled and the gallons of nonpersistent oil recovered from the water by spill responders within twenty-four hours, such that:

Damages ($) = x * [(SVS*OilAT*total gallons spilled) + (SVS*OilMI*total gallons spilled) + (SVS*OilPER*{total gallons spilled - gallons recovered in 24 hours})]

x = appropriate multiplier as determined in WAC 173-183-850(2) or 173-183-860(2).

     (5)(a) When the conditions specified under subsection (1)(a), (b), and (d) of this section are met, calculation of damages under WAC 173-183-830(3) is modified by having the mechanical injury and persistence components multiplied by the difference between the total gallons spilled, as determined by WAC 173-183-810, and the gallons of persistent oil recovered from the water by spill responders within forty-eight hours, such that:

Damages ($) = x * [(SVSATj*OilAT*total gallons spilled) + (SVSMIj*OilMI*{total gallons spilled - gallons recovered in 48 hours}) + (SVSPERj*OilPER*{total gallons spilled - gallons recovered in 48 hours})]

x = appropriate multiplier as determined in WAC 173-183-830(3).

     (b) When the conditions specified under subsection (1)(a), (b), and (d) of this section are met, calculation of damages under WAC 173-183-840(2) is modified by having the mechanical injury and persistence components multiplied by the difference between the total gallons spilled, as determined by WAC 173-183-810, and the gallons of persistent oil recovered from the water by spill responders within forty-eight hours, such that:

Damages ($) = x * [(SVSj*OilAT*total gallons spilled) + (SVSj*OilMI*{total gallons spilled - gallons recovered in 48 hours}) + (SVSj*OilPER*{total gallons spilled - gallons recovered in 48 hours})]

x = appropriate multiplier as determined in WAC 173-183-840(2).

     (c) When the conditions specified under subsection (1)(a), (b), and (d) of this section are met, calculation of damages under WAC 173-183-850(2) and 173-183-860(2) is modified by having the mechanical injury and persistence components multiplied by the difference between the total gallons spilled, as determined by WAC 173-183-810, and the gallons of persistent oil recovered from the water by spill responders within forty-eight hours, such that:

Damages ($) = x * [(SVS*OilAT*total gallons spilled) + (SVS*OilMI*{total gallons spilled - gallons recovered in 48 hours}) + (SVS*OilPER*{total gallons spilled - gallons recovered in 48 hours})]

x = appropriate multiplier as determined in WAC 173-183-850(2) or 173-183-860(2).

     (6)(a) When only the conditions specified under subsection (1)(d) of this section are met, calculation of damages under WAC 173-183-830(3) is modified by having the persistence components multiplied by the difference between the total gallons spilled and the gallons of persistent oil recovered from the water by spill responders within forty-eight hours, such that:

Damages ($) = x * [(SVSATj*OilAT*total gallons spilled) + (SVSMIj*OilMI*total gallons spilled) + (SVSPERj*OilPER*{total gallons spilled - gallons recovered in 48 hours})]

x = appropriate multiplier as determined in WAC 173-183-830(3).

     (b) When only the conditions specified under subsection (1)(d) of this section are met, calculation of damages under WAC 173-183-840(2) is modified by having the persistence components multiplied by the difference between the total gallons spilled and the gallons of persistent oil recovered from the water by spill responders within forty-eight hours, such that:

Damages ($) = x * [(SVSj*OilAT*total gallons spilled) + (SVSj*OilMI*total gallons spilled) + (SVSj*OilPER*{total gallons spilled - gallons recovered in 48 hours})]

x = appropriate multiplier as determined in WAC 173-183-840(2).

     (c) When only the conditions specified under subsection (1)(d) of this section are met, calculation of damages under WAC 173-183-850(2) and 173-183-860(2), is modified by having the persistence components multiplied by the difference between the total gallons spilled and the gallons of persistent oil recovered from the water by spill responders within forty-eight hours, such that:

Damages ($) = x * [(SVS*OilAT*total gallons spilled) + (SVS*OilMI*total gallons spilled) + (SVS*OilPER*{total gallons spilled - gallons recovered in 48 hours})]

x = appropriate multiplier as determined in WAC 173-183-850(2) or 173-183-860(2).

     (7) In no case shall the modifications to damages liability enumerated in subsections (3) through (6) of this section result in a reduction of damages to less than one dollar per gallon of oil spilled for those spills of less than one thousand gallons total, and three dollars per gallon of oil spilled for those spills of one thousand gallons or more in total.

     (8)(a) To reduce resource damage liability, the PLP must provide oil recovery information to the OSC. The PLP may provide the information required in (b) of this subsection on form number ECY-050-49, or other means that are acceptable to ecology. The submission may be electronic or other means that are acceptable to ecology. Ecology may request additional information if it is needed to facilitate recovery credit calculations.

     (b) The information provided must include:

     (i) Date and time of the initial spill.

     (ii) Date and time of when mechanical recovery operations ended, when oiled sorbents were removed from the water, and when oiled debris were removed from the water.

     (iii) Name and contact information for the PLP.

     (iv) Name of the contractors doing clean-up work, if different than the PLP.

     (v) Spill source and location.

     (vi) Oil type - Common name (gasoline, diesel, jet fuel, aviation fuel, kerosene, lube oil, hydraulic oil, transformer mineral oil, bunker oil, intermediate fuel oil, crude oil, asphalt, vegetable oil, other).

     (vii) Specific gravity of the spilled oil and a determination of whether it is nonpersistent or persistent by definition (see WAC 173-183-100 (25) and (30)).

     (viii) For persistent oils (WAC 173-183-100(30)), laboratory data that specifies the specific gravity of the oil.

     (ix)(A) For mechanical or hand recovery operations, a record signed by the PLP's on-scene supervisor of the amount, in gallons, of water-oil mix, water, and oil in the storage device before recovery operations start. This record must be created prior to using the storage device for recovery operations. The amount of oil in each storage device used must be physically measured by measuring the thickness of oil on the water surface.

     (B) To receive credit for oil mixed with water, including dissolved fractions or emulsified oil, oil must be measured by the collection of at least two representative samples of the water fraction from each storage device. The samples must be analyzed for oil content by a laboratory agreed upon by the OSC and PLP, and the results shared with the OSC.

     (x) Verification that all oleophilic sorbent materials recovered from the water were stored separate from other spill generated wastes, were stored in double plastic bags to reduce leakage and evaporation, and were kept out of the rain as much as practicable.

     (xi) For volumetric calculations of spent oleophilic sorbent materials, the PLP must provide the total gallons of mixed water-oil squeezed from the sorbents, the total water recovered, and total oil recovered. Oil remaining in the pads must then be calculated following (b)(xii) of this subsection.

     (xii)(A) For gravimetric calculations of spent oleophilic sorbent materials, the PLP must provide the total weight of oiled sorbents, total weight of preoiled sorbents, total weight of recovered oil, and make the conversion to total gallons of oil recovered.

     (B) Unless demonstrated otherwise by the PLP, the water content of spent oleophilic sorbent material is assumed to be twenty-five percent by weight.

     (xiii) Verification that oiled debris removed from the water was collected with minimal water and stored separately from other spill generated wastes.

     (xiv)(A) For recovery credit for oil recovered from debris on the water's surface, the PLP must take two representative samples of oiled debris from each area where debris is collected and have it analyzed for oil content by weight at a laboratory agreed upon by the OSC and PLP. The laboratory results must be shared with the OSC.

     (B) The PLP must provide the weight of all the oiled debris recovered from the water from each collection area, the total weight of the oil in the debris based on (b)(xiv)(A) of this subsection, and the total gallons of oil in the debris.

[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), § 173-183-870, filed 4/23/92, effective 5/24/92.]

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.