OIL-SPILL PREPAREDNESS AND RESPONSE RULEMAKING

O I L - S P I L L P R E PA R E D N E S S A N D

R E S P O N S E RU L E M A K I N G

REPORT ON THE ACTIVITIES OF THE OIL SPILL CONTINGENCY

PLAN WAC 173-182 AND WAC 173-183 RULE ADVISORY COMMITTEE

JULY 23, 2012

J E R R Y J O Y C E

M O O N J O Y C E R E S O U R C E S

1 1 7 4 0 E X E T E R A V E N E

S E A T T L E , W A 9 8 1 2 5

Oil Spill Contingency Plan WAC 173-182 and WAC 173-183 Rule Advisory Committee

This report was produced as a supplement to a contract between Seattle Audubon Society

and Moon Joyce Resources. While participation on the Advisory Committee was funded

under this contract, the production of this report was the sole effort of Moon Joyce

Resources. The statements in this document are solely my responsibility and represent my

perspectives, beliefs, and analysis.

Moon Joyce Resources is a small consulting firm specializing in technical and scientific

research, writing, editing, publishing, and policy development.

Jerry Joyce has a diverse career that encompasses one central theme: gather information

and clearly explain it to others. This includes writing sixteen books, technically editing more

than thirty books, and writing scores of popular and technical articles. He is a marine

biologist who has conducted marine biological research throughout the world in association

with governmental and inter-governmental agencies. Additional information, including a list

of publications, can be found at www.MoonJoyce.com.

Jerry Joyce has worked on numerous oil-spill work groups in Washington State,

including the WA Oil Spill Advisory Council (2005-2009), Olympic Coast National Marine

Sanctuary Oil Spill Workgroup (2009), and the Puget Sound Partnership Oil Spill

Workgroup (2010-present). He also chairs the Birds and Mammals Monitoring Work Group

of the Puget Sound Partnership.

Cover image: Image from NASA's Airborne Visible/Infrared Imaging Spectrometer

(AVIRIS) instrument over the site of the Deepwater Horizon BP oil rig disaster on May 17,

2010. See http://spacestation-shuttle.blogspot.com/2010/05/nasa-sensor-completes-initial-gulf-

oil.html

Table of Contents Summary .................................................................... iii

Introduction ............................................................... 1

The Oil Spill Bill E2SHB 1186 ................................ 2

The Governor’s Signing Statement ........................ 3

Rulemaking ................................................................. 3

Best Achievable Protection ............................... 5

Vessel of Opportunity Program ....................... 6

Drills ..................................................................... 7

Shoreline Cleanup ............................................... 8

Vessel Emergency Notification ........................ 8

Facility Spills to Ground Notification ............. 8

Primary Response Contractor Standards ........ 8

Natural Resource Damages ............................... 9

Volunteer Program ............................................. 9

Discussion .................................................................. 9

Vessels of Opportunity .................................... 10

Technical Manual .............................................. 10

4-Hour Planning Standard .............................. 10

Aerial Surveillance ............................................ 11

5-Year Review Cycle ........................................ 12

Drills ................................................................... 12

Shoreline Cleanup ............................................. 13

Additional Requirements ................................. 13

Future Steps ............................................................. 14

Oil Spill Contingency Plan WAC 173-182 and WAC 173-183 Rule Advisory Committee

Appendix I: Committee Members ........................ 15

Appendix II: Links to Literature Cited ................ 17

Appendix III: Governor’s Signing Statement ..... 19

Appendix IV: Submitted Comments .................... 21

Appendix V: Details of the Buster Technology.. 25

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SUMMARY

The Legislature passed Engrossed Second Substitute House Bill 1186 (E2SHB 1186), the

“Oil Spill Bill” in 2011, requiring improvements in the state of preparedness for an oil spill.

Implementation of this legislation required changes to the State’s rules. To do this, Ecology

convened a Rule Advisory Committee from January to June, 2012 to review and comment

on the drafts of the rule.

A primary objective of the bill is to obtain best achievable protection by using best

achievable technology. This includes enhanced aerial-surveillance equipment to enable

operations at night and in adverse weather conditions, improve skimming and containment

technology, and the review of emerging technologies. Improved surveillance was addressed

by requiring increased aerial assets to be under contract and available during a spill. One of

these assets was to include at least two remote sensing systems. Improved skimming and

containment technology was implemented by the creation of the new four-hour planning

standard, requiring modern technologies to be available.

The bill also called for the development of a vessel of opportunity program and this is

implemented by requiring such programs be developed for using fishing and other vessels to

be under contract and provide services in the event of a spill.

The rule also improves deployment and other drill requirements, shoreline cleanup, and

spill notifications. The rule, however, is not limited to static requirements. It implements a

five-year cycle to review new and emerging technologies and needed modifications to

contingency plans. The continuing improvement of the response capabilities within

Washington waters are to be implemented through this review cycle.

While much has been achieved in this draft rule, there needs to be substantial diligence

to monitor the implementation of these rules and to make sure the effectiveness and

capacity to respond to spills in our waters be improved throughout the review cycles.

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INTRODUCTION

The Washington State Legislature passed Engrossed Second Substitute House Bill 1186

(E2SHB 1186), the “Oil Spill Bill,” in 2011, requiring improvements in the state of

preparedness for an oil spill. Due to the political mastication of the legislature, much of the

detail in the original bill was deleted and the Washington State Department of Ecology

(Ecology) was directed to fulfill the requirements of the bill through rulemaking. The

primary intent of the bill is to improve the ability of plan holders, response contractors, and

state agencies to respond to an oil spill as effectively as possible. Details of the bill are

discussed later. The bill also dictated that all rulemaking be complete by the end of 2012,

thus requiring a much shorter than usual timeframe for rulemaking. Additionally, Governor

Gregoire attached a signing statement to the bill that added direction to the rulemaking, also

discussed later.

Ecology issued a Preproposal Statement of Inquiry (CR-101) on July 6, 2011, stating

their intent to conduct rulemaking. The authority to conduct the rulemaking was through

E2SHB 1186 which amended state law, Chapters 88.46 RCW, 90.48 RCW, and 90.56 RCW.

The rules to be amended were Chapter 173-182 WAC (Oil spill contingency plan) and

Chapter 173-183 WAC (Pre-assessment screening and oil spill compensation schedule

regulations). On October 17, 2011, the Department of Ecology invited Seattle Audubon “to

appoint a primary and alternate representative to participate in the rule committee work and

represent environmental interests.” I was subsequently appointed as the primary

representative and contracted by Seattle Audubon to participate.

Pre-rulemaking meetings were held between staff of Ecology and different groups of

stakeholders. The “environmental” stakeholders held two meetings with staff in October

and November 2011. In these meetings, we expressed our expectations of the rulemaking,

especially that the rules reflected the intent of the bill, as expressed in the earlier drafts, as

well as the content of the passed bill. This expectation generated some of the most serious

discussions during the rulemaking process.

The Rules Advisory Committee met seven times between January 26, 2012 and June 5

2012. The meeting dates and primary topics are shown in Table 1. Most of the meetings

were held from 8:30 am to 4 pm at the Lacey Community Center, Lacey, WA. In addition to

J. Joyce: Oil Spill Contingency Plan WAC 173-182 and WAC 173-183 Rule Advisory

Committee

the formal meetings, phone conferences and emails were used to clarify or emphasize points.

Members of the Rule Advisory Committee are shown in Appendix I.

Ecology plans to issue a notice of Proposed Rule Making (CR 102) on August 15, 2012

with a publication date of September 5, 2012. The formal comment period will begin upon

publication of the notice. Ecology plans to hold information workshops prior to the

publication of CR 102, but these dates have not yet been announced.

THE OIL SPILL BILL E2SHB 1186

The Oil Spill Bill E2SHB 1186 was signed by Governor Gregoire on April 20, 2011, the

one-year anniversary of the BP Deep Horizon oil spill in the Gulf of Mexico, with an

effective date of July 22, 2011. Much of the bill was based on the study Assessment of Capacity

in Washington State to Respond to Large-scale Marine Oil Spills, prepared by the Oil Spill Advisory

Council (OSAC) and an Ecology—Puget Sound Partnership (PSP) review Improving Oil Spill

Prevention and Response in Washington State: Lessons Learned from the BP Deepwater Horizon Oil Spill.

Links to these documents are available in Appendix II. Several members and affiliates of

OSAC, including stakeholders from environmental, recreational boating, shellfish,

commercial fishing, and tribal interests consulted with Ecology and worked to develop the

draft legislation of the bill. These stakeholders were also very active in guiding the bill

through the legislative process.

The bill, as signed, required that the following major changes be made:

Update planning standards to ensure access in the state to equipment that

represents the best achievable protection, including aerial surveillance, to

respond to a worst case spill and provide for continuous operation

Update planning standards at five-year intervals to maintain best available

protection over time

Establish a volunteer coordination system

Require joint-large-scale, multiple plan equipment-deployment drills of tank

vessels at least once every three years

Notify a plan holder if their plan is approved, disapproved, or conditionally

approved within sixty-five days of submittal

Require umbrella plans that cover both tank and non-tank vessels, to describe

the worst-case discharge for both tank and non-tank vessels. An agreement must

be in place with another entity to supply additional equipment if any worst-case

discharge exceeds the capacity of the plan holder.

Notify the State in the event of a vessel emergency that results in the discharge

or oil or posses a substantial threat to discharge oil. This is in addition to any

required notification to the Coast Guard.

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Modify the natural resources damage tables, requiring compensation for a spill

totaling more than one thousand gallons, to be not less than three dollars per

gallon spilled and not more than three hundred dollars per gallon spilled, minus

any volume of persistent oil recovered within the first forty-eight hours of the

spill.

Ensure that owners of oil that have been spilled are liable for damages resulting

from loss of income, net revenue, means of producing income or revenue, or

loss of real or personal property or natural resources. This includes damages

from the use of chemical dispersants or in situ burning.

A link to the bill is given in Appendix II.

THE GOVERNOR’S SIGNI NG STATEMENT

Governor Gregoire included a somewhat unusual signing statement when she signed

E2SHB 1186. The signing statement emphasized the following points:

Ensure that the state regulations provide the best achievable protection. This

includes the ability to operate safely and continuously at night and during

inclement weather conditions. This includes being able to respond in rain, fog,

waves, and high currents.

Utilize vessels of opportunity when responding to a major oil spill

Ensure state requirements protect the state’s economy, quality of life, and natural

resources. This includes the requirement to ensure that rules addressing cargo

ship spill response requirements minimize impacts to discretionary cargo.

The entire signing statement is shown in Appendix III.

RULEMAKING

Ecology proposed amending the Oil Spill Contingency Planning rule (Chapter 173-182

WAC) to implement Chapter 122, 2011 Laws (E2SHB 1186) as follow:

Update state oil-spill preparedness planning standards to incorporate best

achievable protection and best available technology

Improve the state’s current vessels of opportunity system

Require joint large-scale equipment deployment drills from tank vessels

Improve the state-required notification process to include potential spill threats

as well as actual spills

Change contingency plan requirements for nonprofit “umbrella” organizations

Update definitions

Make other changes related to oil spill contingency plans and Ecology’s

contingency plan review and approval process


Committee

The rule differentiates between different types of plan holders, the different structures of

plans, and different locations. The main types of plan holders include facilities, covered

vessels, tank vessels, and non-tank vessels.

Facilities are land-based entities, such as oil refineries and storage sites.

Covered vessels are tank vessels, cargo vessels (including fishing and freight vessels), or

passenger vessels, required to have a contingency plan.

Tank vessels are those vessels that carry oil as cargo.

Non-Tank vessels are all vessels other than tank vessels that are required to have a

contingency plan.

An Umbrella Plan is a single plan that is developed to cover multiple vessels. While

most of these vessels are cargo vessels, some plans also cover tank vessels.

Also being amended is Chapter 173-183 WAC, addressing the natural resources damage

compensation table.

Meetings of the Rules Advisory Committee were held to implement these changes, as

shown in Table 1.

Date Topics

January 26 Vessels of Opportunity

February 23 Best Achievable Protection

March 22 Vessels of Opportunity

Drills

April 25 Best Achievable Protection

5-Year Review Cycle

4-Hour Planning Standard

Aerial Surveillance

Technical Manual

April 26 Shoreline Cleanup

Primary Response Contractors

Vessel Emergency Notification

Facility Spills to Ground Notification

May 24 Review of 2nd Draft of Contingency Rule

Umbrella Plans

Natural Resource Damage Assessment

June 5 Review of 3rd Draft of Contingency Rule

Table 1: Dates and topics of the Advisory Committee meetings

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BEST ACHIEVABLE PROTECTION (BAP)

The rule states that BAP 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. Ecology’s determination of best achievable protection will be guided by the

critical need to protect the state’s natural resources and waters, while considering:

The additional protection provided by the measures

The technological achievability of the measures

The cost of the measures

BAP is addressed in the rule through several different requirements:

Develop a technical manual

The technical manual is a planning document that every covered vessel in

Washington waters must possess. In most cases it will be prepared by their

contracted response contractor. The manual is designed to support the

implementation of BAP and includes full descriptions of dedicated and non-

dedicated equipment and plans on how it will be utilized. The manual is to

show how all requirements will be met.

Review of planning standards for BAP on a 5-year cycle

The intent of the review is to ensure the maintenance of best achievable

protection to respond to a worst-case spill and provide for continuous

operation of oil spill response activities to the maximum extent practicable

without jeopardizing crew safety. The review will be centered on the issues of

best achievable technology, staffing levels, training procedures, and

operational methods. While most of the evaluation will be done by Ecology,

revisions of the planning standards will be available to the public for review

and comment.

Establish planning standards for aerial surveillance

Improvements in aerial surveillance are specifically called for in

E2SHB 1186. The rule requires an aircraft to be under contract with the

vessel plan holder capable of arriving within six hours of the spill with at

least one trained observer. That resource must be available for at least ten

hours per day for the first three days. An additional aircraft with at least two

remote-sensing systems that can detect oil at night and in adverse weather

conditions must also be under contract and be capable of being on-site

within eight hours. The sensing equipment, one of which is to have Forward-

Looking Infrared Radar (FLIR) capabilities, must be able to transmit multi-


Committee

spectral images at near-real time that includes geographic references and oil-

thickness assessment to Unified Command.

Establish planning standards for vessels carrying Group 5 oils

Group 5 oils are heavy oils, such as those derived from Alberta tar sands,

which may sink after being spilled. Any tank vessel that carries these oils

must have a contract with a responder that is capable to recover such oils.

Included in equipment requirements is to have sonar, sampling equipment,

or other method to detect submerged oil; appropriate booms for this type of

oil; pumps and/or dredges to recover submerged oil; and any other

equipment designed to recover this type of oil. This specialized equipment

must be able to be on-site within twelve hours.

Develop a 4-hour planning standard for regions

Require boom that is capable of separating oil from water and store at least

200 barrels to be available within four hours. The boom must be capable of

working in waves and at a speed of at least 2 knots.

VESSEL OF OPPORTUNITY (VOO) PROGRAM

The VOO program is designed to utilize fishing and other vessels that are not already

dedicated to oil-spill response, to be used in the event of a large spill. Much of the program

was modeled after a VOO program in Prince William Sound, from lessons learned in the BP

Deep Horizon spill, and from the VOO program being developed by the Makah tribe. A

formal VOO program has not been coordinated or specified before in Washington State,

although some response contractors currently have some agreements with non-dedicated

vessels of opportunity. The rule identifies the function of the VOO as:

Protect sensitive habitats through the placement of oil spill booms

On-water oil recovery in the nearshore environment

Provide logistical spill response support

Support other tactical actions

The rule requires vessels that are participating in the VOO program to be registered with

Ecology. The number of vessels with fully trained crews contracted to participate in the

program (Tier 1 vessels) is designated by region, as shown in Table 2. These vessels must

also be re-registered annually and must participate in drills.

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Region Minimum number

of Vessels

1: Cape Flattery/ Strait of Juan de Fuca 18

2: San Juan Islands/North Puget Sound 12

3: South Puget Sound/Central Puget Sound 12

4: Columbia River 12

5: Admiralty Inlet/Hood Canal and North Central Puget Sound 12

6: Grays Harbor 12

Table 2: VOO regions and vessels required

The VOO program also includes vessels where the crews are not necessarily trained in

oil-spill response but whose owners are willing to make their vessels available in the event of

a spill (Tier 2 vessels). These vessels are not under contract to a plan holder prior to a spill

and do not necessarily participate in drills.

The VOO program being developed by the Makah tribe was specifically mentioned in

the Governor’s signing statement, noting that it could serve as a model for other tribes to be

involved in protecting their treaty rights and trust resources.

DRILLS

The rule adds three types of drills to those required.

Emergency Response Towing Vessel

This drill is limited to the area of the San Juan Islands and is designed to test

the ability of a tug to be called out and respond to a disabled or drifting

vessel. This drill is required to be conducted once during the standard 3-year

drill cycle.

Wildlife Deployment

This tests the deployment of wildlife equipment and personnel. This drill is

required to be conducted once during the standard 3-year drill cycle.

Tank Vessel Multiple Plan Holder Deployment

This drill may involve dedicated and nondedicated equipment, vessels of

opportunity, multiple simultaneous tactics, and the verification of operational

readiness over multiple operational periods. This drill is required to be

conducted once during the standard 3-year drill cycle.


Committee

Additionally, the rule requires a master list of equipment and of personnel to fill both

command post and field operations roles in tabletop drills.

Tier 1 vessels in the VOO program must also participate in at least one deployment drill

during the standard 3-year drill cycle.

SHORELINE CLEANUP

The rule adds substantial detail to the requirements for shoreline cleanup by covered

vessel plan holders. The planning standard requires that each vessel plan holder has a

contract for 100 trained shoreline cleanup workers to be on site within 24 hours of a spill.

There should be a ratio of one supervisor per ten cleanup workers. Each supervisor must be

trained in safety, hazardous materials, and functioning within the Incident Command System

and direct workers to implement assignments issued by the Incident Command.

Plan holders must have access to equipment needed for passive recovery along three

miles of shoreline covering three tide lines. A shoreline cleanup trailer that can supply 80-100

workers with appropriate equipment and protective gear must be available. The plan must

also describe communications, data collection, data transmission, and data management. It

should also describe how additional resources will be acquired to support shoreline cleanup

for an additional 14 days.

VESSEL EMERGENCY NOTIFICATION

The owner or operator of a covered vessel must notify the state through the Washington

Emergency Management Division of a discharge or a substantial threat of a discharge within

one hour of the discharge or substantial threat of a discharge, or as soon as feasible. This

notification is in addition to any required notifications to the Coast Guard.

FACILITY SPILLS TO GROUND NOTIFICATION

The rule now requires that when a spill greater than 42 gallons occurs at a regulated

facility and contacts permeable ground, the facility must report the spill. If the spill contacts

only a paved surface, such as concrete or asphalt, then it is not considered a spill to ground

and does not have to be reported.

PRIMARY RESPONSE CONTRACTOR (PRC) STANDARDS

The rule adds requirements when a PRC applies to become a state-approved PRC. This

includes:

Identify and train supervisors

List of all equipment available and their location and commit to keep the list

current

Description of any VOO program

List of shoreline cleanup and wildlife recover/rehabilitation personnel and

equipment

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List of all remote–sensing equipment, including aircraft and personnel assets

List of shoreside storage agreements and estimated capacity

List of other equipment and/or technologies for response, such as in situ

burning and chemical agents

An approved PRC must, on a quarterly basis, certify that the list of equipment is current.

Additionally, the PRC must notify Ecology if there are any significant changes to equipment,

personnel, or contract status.

NATURAL RESOURCE DAMAGES

The changes in the rule primarily address the modifications of the formulae that are used

to calculate the damage assessment tables. The tables are used to estimate natural resource

damages when a full natural resources damage assessment is not conducted. Natural

resource damage compensation is in addition to cleanup costs and any penalties charged to

the spiller. The two main changes are:

Increase the compensation range for spills

This increases the range for spills less than one thousand gallons to at least

$1.00 per gallon and no more than $100.00 per gallon and for spills of one

thousand or more gallons, to at least $3.00 per gallon and no more than

$300.00 per gallon.

Modify how recovery of oil is credited

Persistent oil that is contained, does not impact the shoreline, and is

recovered in the first 48 hours of the spill is credited against the total volume

of oil spilled.

VOLUNTEER PROGRAM

The rulemaking did not address establishing a volunteer program.

DISCUSSION

While most rulemaking tends to be intense, technical, and often baffling, this process

was even more so due to the very short timeline to complete the work. However, the

enabling legislation was specific enough to ensure that the result would substantially improve

the capacity to respond to oil spills. My specific concerns to the draft rule were submitted as

formal comments to Ecology. These comments are shown in Appendix IV.

There are several highlights to these rules and a few lowlights, which are discussed

below. An overall concern, however, is the amount of discretion that Ecology holds on

determining if the intent of E2SHB 1186 is being met. This includes how Best Achievable

Protection and Best Achievable Technology are determined, the granting of alternatives to


Committee

many of the requirements, the required training for many roles, the availability of plans for

review, and how the five-year review cycle will function.

Some of the resources that are needed to address issues are not yet developed. For

example, the accepted method for determining the capacity of equipment to recover oil

(EDRC) has been shown to be misleading and grossly overestimates recovery capabilities

(OSAC, others). The Coast Guard is currently reviewing this method and is expected to

provide recommendations by the end of 2012. Another example is the concern about the

type of dispersants being stockpiled. The Western Regional Resource List (WRRL) is

currently being redesigned and is supposed to provide that information. The date for the

completed design is unknown.

The result is that the process needs to be carefully monitored, especially through the

five-year review cycle.

VESSELS OF OPPORTUNITY

The development of an effective VOO program was one of the main objectives of

E2SHB 1186. The 2009 OSAC study showed that without a VOO program, there would not

be adequate resources to effectively respond to a large oil spill.

The rule provides the structure for a VOO program but it also provides considerable

flexibility that could be used to delay or avoid the development of regional VOO programs.

For this to be implemented, fishing and/or other vessel owners, need to organize and

pressure the plan holders to implement the program. The program currently under

development by the Makah could provide a template for other regions, but is unlikely to be

universally adaptable.

TECHNICAL MANUAL

The technical manual may be the keystone to implement best available protection. The

manuals, by their very nature, will be extremely technical, boring, and probably mostly

indecipherable. However, each manual will provide a roadmap of the technology and

procedures being implemented and hopefully show what needs to be improved. These

manuals will need serious technical review and evaluation by Ecology staff. Their responses

will also instruct us on how serious the agency is in ensuring the implementation of BAT and

BAP. The production of the manual will also push the plan holder and PRC to keep their

resource lists, such as the WRRL, updated and accurate, as required in the PRC section of

the rule.

4-HOUR PLANNING STANDARD

This new standard implements the use of modern recovery technology. While not

specific to brand of recovery technology, this requires the technology that is currently

achieved with the “Buster” technologies. These technologies are described in Appendix V.

These systems are able to separate and store oil in unfavorable weather and sea conditions

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and were proved highly valuable during the BP Deep Horizon Gulf spill. A concern is that

although this standard requires the equipment to be available within four hours of a spill, the

responders can decide not to deploy it. This is of greatest concern during a small- to

moderate-sized spill. The Buster technology is much more expensive than standard boom

and has a limited life once oiled. Therefore, despite being more efficient in recovery of oil in

the early hours of a spill than standard boom and skimmer, it might not be deployed unless

ordered to do so by the Unified Command. Additionally, the effective use of this technology

requires appropriate training so Ecology must require deployment of these systems during

deployment drills. Despite these concerns, having the Buster technology available within

four hours should substantially increase the ability to quickly and effectively respond to a

substantial spill.

AERIAL SURVEILLANCE

The rule requires two aircraft, one available quickly and carrying a trained observer, and a

second aircraft equipped with at least two remote sensing equipment and trained personnel.

This shifts the burden of having a dedicated aircraft contracted for aerial observations to the

plan holder. Previously, aircraft were often acquired by Ecology. The second aircraft is an

increase in available modern technology, requiring both FLIR sensors and a second system

to provide multispectral imaging. It is also required to be capable of transmitting data and

images to Unified Command in near-real time. This issue was highly contentious and was

seen by plan holders as an expensive enhancement. Also, there was much debate about

which technologies are readily available.

Remote sensing is critical to enable full-time recovery operations, regardless of night or

impaired visibility. While FLIR is an established and available technology, its imaging is

imprecise and unable to determine oil thickness. More advanced multispectral imaging

systems are able to provide data in more adverse conditions than the FLIR system and can

be capable of determining the thickness of oil. However, this is an emerging technology with

limited availability.

Determining oil thickness is extremely important in efficiently utilizing resources to

recover oil. Gathering this data at night provides the ability to effectively work at night, or if

recovery work at night is deemed unsafe, at least to position recovery vessels overnight to

the appropriate locations for daylight operations. Being able to transmit data and images in

near real-time can also greatly enhance recovery operations.

The rule provides substantial leeway in selection of the second remote sensing system.

As remote systems are deployed and tested, and more advanced system become available,

additional specifications for the systems should be included. It will be critical to have

evaluations of systems fairly early in the 5-year review cycle so effective and available

systems will be required.


Committee

5-YEAR REVIEW CYCLE

This process, where planning standards are reviewed and updated every five years,

provides the method to update the requirements for more efficient and newly emergent

technologies. Once again, Ecology has great latitude in how it will evaluate BAP and BAT,

what changes are incorporated in the planning standards, and the timeline for the

implementation of the new planning standards.

The process, however, is a great opportunity for a continuing upgrade as technologies,

procedures, and information emerge and are authenticated. Some of these items have already

been identified, including remote-sensing systems, determination of recovery efficiency

(EDRC), and the restructuring and update of the resource lists, including the WRRL.

Research on more advanced and effective technologies and methods have been underway

since the BP Deep Horizon Gulf spill and the results will become available over time.

Additionally, work on the consequences of using specific dispersants are being studied and

may provide guidance not only on the use of dispersants but also the selection of which

dispersants to use. Once again, diligence is needed to be aware of both the current state of

BAT and BAP, and how Ecology will incorporate the information into future planning

standards.

Another aspect of the review is to see how plan holders implement the planning

standards. With the intended and unintended loopholes in the rule, it is necessary to review

the interpretation of the requirements as contingency plans are updated. One critical aspect

of this is the opportunity to review submitted plans before their acceptance by Ecology.

Currently, in the name of national security, hard copies of the submitted plans are available

only at two Ecology offices (Bellevue and Lacey) and review requires an advanced

appointment. Through continuous pestering at the meetings and Ecology being confronted

with paperwork reduction legislation, we were able to incorporate into the rule that

submitted contingency plans will be available for remote viewing from a secure website.

While the web access will assist in viewing the plans, substantial time and effort will be

needed to determine the acceptability of the plan.

DRILLS

Initiating and executing drills has been one of the most contentious issues in the oil-

preparedness discussions. Drills are very expensive and time-consuming for industry,

Ecology, and response contractors. However, without adequate drilling, response during an

actual spill may be seriously compromised. The draft rule does little to improve the drill

program, with three exceptions. The requirements for drills of the VOO program, once

established, should substantially improve the integration of this program with other response

efforts. The requirements for full wildlife response deployment drills will enable this often

neglected part of response to be funded and tested. Finally, the multi-plan holder drills

should help understand the interactions between response programs should they be needed

in a large spill. The issue of drills will need to be explored in the future. As stated earlier,

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deployment drills of equipment required by the four-hour planning standard should be

conducted to ensure proper training of this specialized equipment.

SHORELINE CLEANUP

This was a contentious issue due to the poor performance of shoreline cleanup activities

in many spills around the country. While the rule tries to address this by requiring a 10:1

ratio of workers to supervisors, it is insufficient in addressing the level of training for both

the workers and the supervisors. Through intensive discussion, the rule text was expanded to

provide some general guidelines for training and availability. It is unlikely that much more

detailed specifications for training and skill levels can be included in a planning standard.

Therefore, in the event of a spill that impacts shorelines, cleanup activities will need to be

carefully monitored by both Ecology and the public.

ADDITIONAL REQUIREMENTS

The requirements for notification to the state when a vessel has an emergency are

designed to provide timely notification and activation of the spill-response assets, even

before a spill occurs. However, this part of the rule will generate considerable dispute. The

determination of declaring a vessel emergency is left to the captain of a vessel, someone who

might be reluctant to announce that the vessel is experiencing problems. Additionally, the

US Coast Guard has formally commented that they believe this requirement violates Coast

Guard authority and is subject federal preemption. This issue could cause considerable legal

difficulties for both this rule and even the law it is based on.

The requirements for notification of spills in facilities improves the ability of Ecology to

track small to moderate spills at facilities, spills that are not often reported. It also provides

the opportunity to confirm that oil had not left the containment area while allowing Ecology

to be better prepared in the event that the spill is ongoing or threatening natural resources.

The Primary Response Contractor standards specify the requirements for a PRC to be

certified. It also carries requirements for maintaining the certification. The main benefits for

this is to ensure that all PRCs, including small ones that contract with small plan holders, are

capable of providing rapid and efficient response. Additionally, the requirements to keep

equipment lists current should substantially improve the quality of these lists for all PRCs

and provide a more accurate picture and cross-check of assets that are available for

immediate response.

The modification of the resource damage assessment tables was a straightforward action

that enacted what was stipulated in the law. It did go further to clean up definitions and

obsolete or inaccurate wording. While these changes seem innocuous, implementation needs

to be watched so there are no unexpected consequences.


Committee

FUTURE STEPS

The rulemaking so far has been contentious but fair. Most of the main issues appearing

in E2SH 1186 have been addressed and, while compromise was needed, the intent of the bill

has been addressed. However, these rules have set up a process for continuing review and

implementation while providing Ecology with a great deal of discretion in interpreting

whether provisions are met. This means that NGOs and other “environmental” interests

must be diligent in monitoring the actions of Ecology, the progress of implementation, and

the execution of the five-year review cycle.

The final draft of the rule will soon be released and rulemaking will then go to public

comment. The final draft needs a full review to ensure that there were no negative

substantive changes. Additionally, outreach and education activities are needed to involve

the public in the workshops and comment period.

The Legislature should be engaged in the issues that are stipulated in the bill but were

not addressed in the rulemaking. This includes the liability section on the use of dispersants

and in situ burning, and the section on developing a volunteer coordinating system. The

Legislature, the Governor, the Attorney General, and Ecology should immediately engage in

discussions with the US Coast Guard regarding federal preemption of vessel emergency

notification.

Once the rule is finalized, the Puget Sound Partnership Oil Spill Work Group should be

engaged immediately in the five-year review cycle, especially in reviewing and documenting

emerging technology that will provide the Best Achievable Protection through the Best

Achievable Technology.

Rather than this rulemaking being the end, it must be only the beginning, of the public

involvement if we are to achieve an improving and effective program.

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APPENDIX I : ADVISORY COMMITTEE MEMBERS

Committee Chair – Linda Pilkey-Jarvis, Preparedness Section Manager, Ecology Spills

Program

Lead Staff – Sonja Larson, Response Technology Specialist, Ecology Spills Program

ADVISORY COMMITTEE REPRESENTATIVES

Primary Alternate Regulated Interest Oil Facilities Mike Condon (British Petroleum

Olympic Pipeline) Rob Yarborough (ConocoPhillips) Todd Barr (Shell)

Oil Shipping Frank Holmes (Western States Petroleum Association)

Jeff Shaw (Polar Tankers)

Umbrella Plans (Puget Sound) Roger Mowery (Washington State Maritime Cooperative)

Tom Callahan (WSMC)

Umbrella Plan (Columbia River) Liz Wainwright (Maritime Fire and Safety Association)

Marisa Chilafoe (MFSA)

Tug/Towing Charles Costanzo (The American Waterways Operators- Pacific Region)

Tim Kline (Harley Marine)

Commercial fishing vessels Leslie Hughes (North Pacific Fishing Vessel Owners Association)

Tom Swanson (Icicle Seafoods)

Primary Response Contractors/Regulated Jim Riedel (National Response

Corporation) Tiffany Gallo

Ernie Quesada (Clean Rivers Cooperative)

Marisa Chilafoe (MFSA)

Joe Bowles (Marine Spill Response Corporation)

Steve Ricks (MSRC)

Business Sector Interests Cargo and Other Shipping

(Puget Sound)

Mike Moore (Pacific Merchant

Shipping Association)

Cargo and Other Shipping

(Columbia River)

Jim Townley (Columbia River

Steamship Operators Association)

Commercial Shellfish Lisa Bishop (Pacific Coast Shellfish

Growers Association)

Gill Net Puget Sound Fishing

Vessels

John McDonald (Puget Sound

Gillnetters)

Shannon Moore

Washington Ports Johan Hellman (Washington Public Ports)

Tribal Interests Chad Bowechop (Northwest

Indian Fisheries Commission)

Columbia River Indian Fisheries Commission (invited)

Chad Bowechop (Makah Tribe) Fred Felleman (Makah Tribe)


Committee

Counties and Cities Commissioner Mike Doherty

(Clallam County) Councilmember Lovell Pratt (San Juan county)

Association of Washington Cities (invited)

Environmental Interests Bruce Wishart (People For

Puget Sound) Jerry Joyce (Seattle Audubon

Society) Matthew Mega (Seattle Audubon)

Recreational Interests Lee Roussel (Citizens for a Healthy

Bay)

Puget Sound Interests Todd Hass (Puget Sound

Partnership)

Ginny Broadhurst (Northwest Straits Commission)

Advisory Committee Invited Observers Dan Doty (Department of Fish

and Wildlife)

Eric Olson (Washington Sea Grant)

Liam Antrim (Olympic Coast National Marine Sanctuary)

Tom Baker (OCNMS)

Shayne Cothern (Washington Department of Natural Resources)

Scott Knutson (U.S. Coast Guard)

Andy Coe (Puget Sound Pilots)

Allison O’Brien (U.S. Department of the Interior)

Ruth Yender (National Oceanic and Atmospheric Administration)

Tom McDowell (U.S. Department of Fish & Wildlife)

Jason Callahan (Legislative staff)

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APPENDIX II : LINKS TO LITERATURE CITED

OSAC, 2009

Assessment of Capacity in Washington State to Respond to Large-scale Marine Oil Spills http://www.psp.wa.gov/downloads/OSAC/osac_archive_20090701/assets/pdf/2009report_combined.pdf

ECOLOGY/PUGET SOUND PARTNERSHIP, 2010

Improving Oil Spill Prevention and Response in Washington State: Lessons Learned from the BP

Deepwater Horizon Oil Spill

http://www.psp.wa.gov/downloads/ECY-PSPReviewofDWHCommissionReport.pdf

E2SHB 1186

Engrossed Second Substitute House Bill 1186 (E2SHB 1186)

http://apps.leg.wa.gov/documents/billdocs/2011-12/Pdf/Bills/Session%20Law%202011/1186-S2.SL.pdf

http://www.psp.wa.gov/downloads/OSAC/osac_archive_20090701/assets/pdf/2009report_combined.pdf

http://www.psp.wa.gov/downloads/ECY-PSPReviewofDWHCommissionReport.pdf

http://apps.leg.wa.gov/documents/billdocs/2011-12/Pdf/Bills/Session%20Law%202011/1186-S2.SL.pdf

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APPENDIX III : GOVERNOR GREGOIRE’ S SIGNING STATEMENT


Committee

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APPENDIX IV: SUBMITTED COMMENT S

I filed formal comments twice via email to Ecology. The first set of comments was based

on the first draft of the rule plus subsequent modifications made in response to the dialog at

the meetings. The second set of comments was based on the second draft and included my

concerns about some of the previous responses to my first set of comments. Prior to

submitting the comments a phone conference was held with Ecology staff, Bruce Wishart

representing People for Puget Sound, and myself. I subsequently submitted my comments,

including my responses to the information provided during the phone conference. The

numbers reference the subsections of the draft of WAC 173-182.

COMMENTS AND REAPPRAISAL AFTER PHONE CONVERSATION

COMMENTS ON THE 2ND DRAFT OF

CHAPTER 173-182 WAC

JERRY JOYCE, SEATTLE AUDUBON, JUNE 4, 2012

120

(b) Include that one copy must be in electronic form.

130

FOUR HOUR PLANNING STANDARD, NON-TANK

Area Previous phase-in Current Phase-in

San Juan 12 mo 24 mo

Neah Bay 12 mo 24 mo

Commencement Bay 24 mo 42 mo

Cathlamet 24 mo 42 mo

Grays Harbor 36 mo 48 mo

FOUR HOUR PLANNING STANDARD, TANK VESSEL

Area Previous phase-in Current Phase-in

San Juan 12 mo 18 mo

Neah Bay 12 mo 18 mo

Commencement Bay 24 mo 36 mo

Cathlamet 24 mo 36 mo

Grays Harbor 36 mo 48 mo


Committee

Comment:

These seem like excessive extensions for implementation. The Four-Hour Planning

Standard is key to rapid response and thus improve recover.

Note: Previous phase-in timeline based on proposal for Key Elements of WAS 173-182,

revision 3/8/2012

325

My Previous Comment: All dispersants are not the same. Some are more effective than

others and some are more toxic than others. The use of the most effective and least toxic

dispersants must be pre-planned, instead of depending on what is available. Therefore, it is

necessary to know which dispersants are being stockpiled and thus will be used in response.

Failure to know what dispersants are being stockpiled prevents the appropriate five-year

review process in achieving the best achievable protection.

Response: Lessons learned from the Deepwater Horizon spill are still coming forward

and the EPA has indicated that they intend to update their regulation on dispersants

(Subpart J). The existing planning standard for dispersants requires stockpiles of dispersants.

These stockpiles are verified by Ecology. The product types are known. We can evaluate the

toxicity and effectiveness overtime using the five year BAP cycle but this change is beyond

the scope of this rule making. It will be reviewed in the next 5 year BAP review cycle.

Comment:

I do not believe that this assures that a full evaluation of quantities and brands of

dispersants will be known. This should be as accessible as equipment (such as the WRRL

list) so evaluation can be done independently.

After the meeting: If the WRRL is being updated with this information, then reference

should only be in the 5-year review process.

349, 355, 365

My Previous Comment: HB1186 requires “the department shall update planning

standards… …in order to ensure access in the state to equipment that represents the best

achievable protection…”. Section 349 fails to ensure that required equipment meets best

achievable protection. Please include language that specifies that boom and storage should

be suitable for the type of oil and environmental conditions expected to be encountered in

the area of concern.

Response: This is part of plan evaluation criteria. It can be found in 173-182-610.

Everything in 610 informs our evaluation of the contingency plan content. The technical

manual is a standalone planning standard but it will be reviewed using the information in

610.

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Comment:

610 does not address the issue of equipment being suitable for type of oil.

522

My Previous Comment: Shoreline cleanup has been an issue both in the effectiveness of

the cleanup and the damage caused by the cleanup process due to both the lack of proper

training and supervision. In many cases, training of workers is primarily limited to safety

training and decontamination procedures. Section 522 addresses this issue by stipulating the

ratio of workers to supervisors. However, it does not address the issue of training, both for

the workers and especially for the supervisors. The section should stipulate that workers

should not only be trained in safety and cleaning methods, but equipment familiarization,

habitat protection, and specialized response in sensitive and critical areas. Additionally, the

section should stipulate the additional training required to be a supervisor, including the

additional training hours required in management and habitat protection.

Response: Shoreline cleanup workers primarily need safety and shoreline cleanup

techniques training. It is the responsibility of the SCAT teams, trustee agencies and other

members of the Unified Command to determine the cleanup techniques and ensure good

practices that mitigate impacts to the environment. All decisions are made with the Unified

Command objectives in mind and generally adhere to the do no harm rule.

We clarified the training requirements for supervisors to ensure that they understand the

ICS process and understand how to follow the direction of the Unified Command.

My Previous Comment: line 12 states that the workers must be adequately trained…

only get health and safety training….expand adequately trained to include more detail on

habitat protection and specific equipment.

Response: We are requiring from an operational standpoint. The goal is to ensure that

shoreline cleanup workers can safely perform tasks in oil. These field assets have training

focused on health and safety. Additional training would be given for shoreline clean up

tactics based on spill conditions and locations. Clean up workers will have work assignments

and supervisors and are not put on beaches without additional training on the task

developed specifically to respond to the unique conditions of the spill.

Shoreline types and cleanup levels are not determined by shoreline clean up workers they

are determined in consultation with trustee agencies as part of the unified command process.

Comment:

In the responsiveness summary, you say “Clean up workers will have work assignments

and supervisors and are not put on beaches without additional training on the task

developed specifically to respond to the unique conditions of the spill.” Unfortunately, we

have seen many cases where this is not the case. This requirement should be put into the rule


Committee

so that requires shoreline workers must receive training for the assigned environment before

being deployed.

620 (1)

Use the same wording as in 630 (2), that includes posting the plan online.

621

Item 3 C should include “performance, safety, and environmental protection” of in situ

burn and dispersants technology.

630

Item 2, must include that the plan is available online

After meeting, I still believe that this is necessary and achievable. There are many secure

options available.

800 (1)(G)

List response equipment “including stockpiled dispersants” on the Western Regional

Response List currently located at www.wrrl.us, or provide an equivalent electronic

equipment list and commit to maintaining the equipment list in whatever format is provided.

Add reference to dispersants and that any equivalent list be readily available to public

review if it is not incorporated into the WRRL list.

After conversation: With the ongoing improvement of WRRL, might add to 621 need to

evaluate completion of WRRL update and accessibility of information.

810 (1)(D)

Include requirement for shoreline environmental protection training prior to deployment

of workers.

810 (5)

Require make and manufacturer for dispersants

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APPENDIX V: DETAILS OF THE “BUSTER” TECH NOLOGY

The Buster technology is the NOFI Buster technology developed in Norway. It is a

specialized booming system that not only collects oil but also concentrates and contains oil

for easy removal and storage. It is the most efficient oil boom system in the market, able to

work at higher towing speeds, stronger currents, and more severe ocean conditions than

other boom systems.

The Buster technology has been available since 1999 with a variety of sizes,

configurations, and capabilities. However, except for the programs in Prince William Sound,

US entities had been very slow in accepting this technology. This changed when the

technology was proven in the BP Deep Horizon Gulf Spill, when, once properly deployed

with trained personnel, it far exceeded recovery rates of traditional systems.

The following information was taken from the AllMaritim AS website at:

http://www.allmaritim.com/english/products/buster-technology/

BUSTER TECHNOLOGY

The Buster series, including the Harbour, Current- and Ocean Buster, is probably the

world’s most efficient and advanced oil containment and recovery system, capable of

containing and controlling oil in up to 5 knots towing speed without losing any of the

contained oil.

Recent trials using one of the Buster systems together with a BoomVane system, allow

the user to use the system as a single vessel sweep system. This towing configuration gives

the operator many advantages such as, reduced response time, increased efficiency due to

stable configuration, better operating and safety conditions for the user and reduced costs

due to one vessel only.

THE NOFI HARBOUR BUSTER

Excellent manoeuvrability and compact design makes the NOFI Harbour Buster ideal

for oil collection in harbours and fjords. In addition to the capability to operate in shallow

waters, the NOFI Harbour Buster can operate in water currents of up to 3 knots. Even at

this relatively high speed the system can collect both high and low viscosity oils, including

diesel (this ability has been well documented in comprehensive tests carried out at the

OHMSETT test tank, USA). The NOFI Harbour Buster can be stored either on a reel, or

packed, for instance on a pallet.

THE NOFI CURRENT BUSTER

Tests of the NOFI Current Buster (carried out by the US Coast Guard) indicate that the

system collects and retains oil at towing speeds of up to 4 knots, with an acceptable loss of

http://www.allmaritim.com/english/products/buster-technology/


Committee

oil, also in short period waves. The NOFI Current Buster offers excellent area coverage and

flexibility in towing speeds up to 4 knots due to its compact and light construction which

facilitates effective towing between oil spill slicks. The system is compact and can be stored

on a reel or pallet. The NOFI Current Buster is well suited for single-vessel operations when

used along with the patented BoomVane otter board.

THE NOFI OCEAN BUSTER - OIL CONTAINMENT AND SEPARATION IN 5 KNOTS !

The NOFI Ocean Buster has been shown to have excellent area coverage and high

operational flexibility at operational speeds of up to 5 knots. The compact system can easily

be maneuvered and towed from one oil spill slick to another. The system incorporates a

high-capacity separator and temporary storage unit. Due to the system’s ability to separate oil

from water, a skimmer pump can pump out almost pure oil, thus greatly increasing

efficiency. Tests have shown that the NOFI Ocean Buster is able to collect almost all types

of oil, independent of towing speed. The system should be stored on a reel.

OIL-SPILL PREPAREDNESS AND RESPONSE RULEMAKING

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