State Passes Bill Strengthening Oil Spill Laws

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SandBar 10.3, July, 2011 Recommended citation: Barton S. Norfleet, State Passes Bill Strengthening Oil Spill Laws, 10:3 SandBar 4 (2011). State Passes Bill Strengthening Oil Spill Laws Barton S. Norfleet, 2012 J.D. Candidate, University of Mississippi School of Law On April 20th, 2011, exactly one year after the devastating Deepwater Horizon spill, Washington State Governor Christine Gegoire signed House Bill 1186, which contains several amendments to the state’s Oil Spill Prevention and Response Act (Act).1 The predominant effect of the amendments is the tripling of damages related to certain types of oil spills occurring in the waters of Washington State.2 Background After the catastrophic Exxon Valdez grounding in 1989, the Washington state legislature required the Department of Ecology (Department) to create a schedule for assessing oil spill damages ranging between $1 and $50 per gallon spilled.3 Washington also required the Department, in determining penalties, to assess factors such as “the characteristics of the oil spilled, the environmental sensitivity of the area affected, and actions taken by the responsible party.”4 Washington later revised the penalty portion of the Act even further, raising the maximum limit from $50 to $100 per gallon spilt.5 After the Deepwater Horizon spill in the Gulf, the Washington state legislature decided to strengthen the Act. The modifications arose from a joint report issued by the Department and the Puget Sound Partnership’s Oil Spill Work Group and fall into three main categories: response activities, spill reporting requirements, and applicable penalties/damage assessment. Response Activities The modifications to response activities include the use of the “best achievable protection,” to ensure the safety of responders charged with containing the spill. The Department must conduct technology updates every five years to ensure that the safest and most efficient technology is available to responders. Another major modification calls for the creation of rules to help facilitate the use of “vessels of opportunity,” which are defined as “vessels such as fishing boats which are not solely dedicated to spill response, but which may be used in the event of a spill for oil recovery.”6 These new rules are aimed at reducing stress on fishermen who forgo their usual fishing season to aid in restoring the affected areas. The amendments also call for the creation of a system to coordinate vessels involved in cleanup activities to be based on the vessel’s response capabilities. Another amendment to the Act requires the Department to run “equipment employment drills” to make sure that responders are provided opportunities to learn how to operate the latest technology applicable to oil spill cleanup. Reporting Requirements Along with the above modifications, the amendments also call for more thorough spill reporting requirements. In addition to notifications required by the Coast Guard, the Act will now require owners and operators of vessels to notify the state of vessel emergencies when there is a possible “substantial threat” of oil discharge or an actual discharge, and this notification must occur within approximately one hour of the sighting. The requirement is intended to increase the rate of the state’s response for cleanup. Penalties The most controversial portion of aspect of H.B. 1186 was its tripling of penalties for certain oil spills. The new penalties apply to spills that exceed 1,000 gallons of oil and increases the previous maximum of $100 per gallon penalty to a maximum of $300 per gallon. The previous rule still applies to spills which do not exceed the 1,000 gallon mark. H.B. 1186 also creates a cause of action for the “use and deployment” of dispersants or for the burning of oil in cleanup operations. The amendments do offer some new incentives for the owners and operators of the vessels responsible for the offense by allowing them to subtract the amount of oil recovered in the first forty-eight hours from the total amount of oil that will be used to calculate the overall penalty. Conclusion The Washington Oil Spill Prevention and Response Act mirrors the federal Oil Pollution Act by “explicitly providing for spill related damages for the loss of income, net revenue, means of producing income or revenue, or economic benefit resulting from the loss of real or personal property or natural resources.”7 Overall, H.B. 1186 strengthens Washington’s oil spill laws. The Department must now ensure that the “best achievable protection” is provided to responders, create a more efficient system for “vessels of opportunity,” and implement higher penalties to help encourage businesses involved in the oil industry to create safer methods of oil production and transportation. In the end, H.B. 1186 is another stepping stone towards a more efficient oil response and prevention system. Endnotes 1. Wash. Rev. Code §§ 88.46.010, 88.46.060, 88.46.100, 88.46.090, and 90.48.366. 2. H.B. 1186, 2011 Leg., 62nd Sess. (Wa. 2011). 3. WASH. REV. CODE § 90.48.366 (1989) (amended 2007). 4. Id. 5. WASH. REV. CODE § 90.48.366 (2007)(amended 2011). 6. Russell Prugh, Washington State Revises Oil Spill Laws on One Year Anniversary of Deepwater Horizon Disaster, Martin Law (May 4, 2011), http://www.martenlaw.com/newsletter/20110504-wash-revises-oil-spill-laws. 7. Id.
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SandBar 10.3, July, 2011
Recommended citation: Barton S. Norfleet, State Passes Bill Strengthening Oil Spill Laws, 10:3 SandBar 4 (2011).

Barton S. Norfleet, 2012 J.D. Candidate, University of Mississippi School of Law

On April 20th, 2011, exactly one year after the devastating Deepwater Horizon spill, Washington State Governor Christine Gegoire signed House Bill 1186, which contains several amendments to the state’s Oil Spill Prevention and Response Act (Act).1 The predominant effect of the amendments is the tripling of damages related to certain types of oil spills occurring in the waters of Washington State.2

Background
After the catastrophic Exxon Valdez grounding in 1989, the Washington state legislature required the Department of Ecology (Department) to create a schedule for assessing oil spill damages ranging between $1 and $50 per gallon spilled.3 Washington also required the Department, in determining penalties, to assess factors such as “the characteristics of the oil spilled, the environmental sensitivity of the area affected, and actions taken by the responsible party.”4 Washington later revised the penalty portion of the Act even further, raising the maximum limit from $50 to $100 per gallon spilt.5
After the Deepwater Horizon spill in the Gulf, the Washington state legislature decided to strengthen the Act. The modifications arose from a joint report issued by the Department and the Puget Sound Partnership’s Oil Spill Work Group and fall into three main categories: response activities, spill reporting requirements, and applicable penalties/damage assessment.

Response Activities
The modifications to response activities include the use of the “best achievable protection,” to ensure the safety of responders charged with containing the spill. The Department must conduct technology updates every five years to ensure that the safest and most efficient technology is available to responders.
Another major modification calls for the creation of rules to help facilitate the use of “vessels of opportunity,” which are defined as “vessels such as fishing boats which are not solely dedicated to spill response, but which may be used in the event of a spill for oil recovery.”6 These new rules are aimed at reducing stress on fishermen who forgo their usual fishing season to aid in restoring the affected areas. The amendments also call for the creation of a system to coordinate vessels involved in cleanup activities to be based on the vessel’s response capabilities. Another amendment to the Act requires the Department to run “equipment employment drills” to make sure that responders are provided opportunities to learn how to operate the latest technology applicable to oil spill cleanup.

Reporting Requirements
Along with the above modifications, the amendments also call for more thorough spill reporting requirements. In addition to notifications required by the Coast Guard, the Act will now require owners and operators of vessels to notify the state of vessel emergencies when there is a possible “substantial threat” of oil discharge or an actual discharge, and this notification must occur within approximately one hour of the sighting. The requirement is intended to increase the rate of the state’s response for cleanup.
Penalties
The most controversial portion of aspect of H.B. 1186 was its tripling of penalties for certain oil spills. The new penalties apply to spills that exceed 1,000 gallons of oil and increases the previous maximum of $100 per gallon penalty to a maximum of $300 per gallon. The previous rule still applies to spills which do not exceed the 1,000 gallon mark. H.B. 1186 also creates a cause of action for the “use and deployment” of dispersants or for the burning of oil in cleanup operations. The amendments do offer some new incentives for the owners and operators of the vessels responsible for the offense by allowing them to subtract the amount of oil recovered in the first forty-eight hours from the total amount of oil that will be used to calculate the overall penalty.

Conclusion
The Washington Oil Spill Prevention and Response Act mirrors the federal Oil Pollution Act by “explicitly providing for spill related damages for the loss of income, net revenue, means of producing income or revenue, or economic benefit resulting from the loss of real or personal property or natural resources.”7 Overall, H.B. 1186 strengthens Washington’s oil spill laws. The Department must now ensure that the “best achievable protection” is provided to responders, create a more efficient system for “vessels of opportunity,” and implement higher penalties to help encourage businesses involved in the oil industry to create safer methods of oil production and transportation. In the end, H.B. 1186 is another stepping stone towards a more efficient oil response and prevention system.

Endnotes
1. Wash. Rev. Code §§ 88.46.010, 88.46.060, 88.46.100, 88.46.090, and 90.48.366.
2. H.B. 1186, 2011 Leg., 62nd Sess. (Wa. 2011).
3. WASH. REV. CODE § 90.48.366 (1989) (amended 2007).
4. Id.
5. WASH. REV. CODE § 90.48.366 (2007)(amended 2011).
6. Russell Prugh, Washington State Revises Oil Spill Laws on One Year Anniversary of Deepwater Horizon Disaster, Martin Law (May 4, 2011), http://www.martenlaw.com/newsletter/20110504-wash-revises-oil-spill-laws.
7. Id.