Washington State Revises Oil Spill Laws on One Year Anniversary of Deepwater Horizon Disaster

Marking the one year anniversary of the Deepwater Horizon disaster, Washington Governor Christine Gregoire signed a bill on April 20, 2011, significantly increasing penalties for oil spilled within Washington’s waters. The legislation, House Bill (“H.B.”) 1186,[1] amends the State’s vessel oil spill prevention and response act, which was passed by the Legislature in 1992 following the Exxon Valdez oil spill.[2] A copy of the bill is available here. Among other changes, H.B. 1186 modifies spill response planning, requires the use of newer response technologies, authorizes training for spill response volunteers, increases spill reporting requirements, and modifies the penalties and damages assessed for Washington oil spills. The legislation builds on the recommendations provided in a recent report jointly issued by the Department of Ecology (“Ecology”) and the Puget Sound Partnership’s Oil Spill Work Group.[3]

Amendments to Washington’s Oil Spill Legislation

H.B. 1186 amends Washington’s current oil spill legislation in three major categories. First, the bill enhances oil spill related response activities. Second, the legislation expands spill reporting requirements. Finally, the bill increases oil spill related penalties and clarifies spill related damages.

The legislation modifies oil spill response activities in several ways. First, the bill requires Ecology to evaluate and update planning standards for oil spill response equipment to include the best achievable protection for spill response and to provide for continuous operation of spill response activities.[4] Ecology’s planning standards will require implementation of newer oil recovery technologies (such as improved spill booms) and aerial surveillance for cleanup efforts. The legislation requires Ecology to issue new planning standards every five years, beginning with rules addressing “tank vessels” by December 31, 2012. These five year updates will allow Ecology to ensure that the latest spill response technology is incorporated into an owner or operator’s comprehensive spill response plan.[5] Second, the legislation requires Ecology to promulgate rules for improving the effectiveness of spill response from so-called vessels of opportunity.[6] Vessels of opportunity include 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. These vessels represented a majority of the first responders in the Deepwater Horizon spill, and Ecology’s rules will coordinate (in advance) these vessels’ response capabilities for any future Washington spills.[7] Third, the bill requires Ecology to establish a volunteer coordination system that will identify community volunteers wanting to assist with spill response and provide those individuals with appropriate spill training.[8] The amendment also shields the volunteers and the State from liability resulting from the volunteers’ response activities. Finally, the bill requires Ecology to conduct “joint large-scale” equipment employment drills to determine the adequacy of compliance with contingency planning requirements. Ecology must conduct at least one such drill every three years.[9]

The legislation also expands spill reporting requirements. Owners and operators now must notify the State of vessel emergencies that result in the “substantial threat” of a discharge of oil to state waters as well as for actual discharges.[10] Owners and operators must also notify the State of vessel emergencies that may affect the natural resources of the State. Notification must occur within one hour of the onset of the vessel emergency.[11]

Finally, H.B. 1186 triples the penalties for certain types of spills. The bill raises the maximum per gallon penalty for spills of one thousand gallons or more from one hundred to three hundred dollars per gallon.[12] The legislation maintains the current penalty structure for spills totaling less than one thousand gallons (minimum of one dollar per gallon and maximum of one hundred dollars per gallon). The amendment also provides incentives for quick response – owners and operators may now deduct the amount of persistent oil recovered from the surface of the water within forty-eight hours of a spill from the total spill volume for penalty purposes. H.B. 1186 also clarifies the spill related damages available from a responsible party. The amendment aligns Washington’s spill law with 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.[13] Damages will now also be available from the use and deployment of chemical dispersants or from in-situ burning utilized in response to the oil spill.[14]

For more information regarding H.B. 1186, contact Russell Prugh.