OIL-SPILL PREPAREDNESS AND RESPONSE RULEMAKING REPORT ON THE ACTIVITIES OF THE OIL SPILL CONTINGENCY PLAN WAC 173-182 AND WAC 173-183 RULE ADVISORY COMMITTEE JULY 23, 2012 JERRY JOYCE MOONJOYCE RESOURCES 11740 EXETER AVE NE SEATTLE, WA 98125
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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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
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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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
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
J. Joyce: Oil Spill Contingency Plan WAC 173-182 and WAC 173-183 Rule Advisory
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-
J. Joyce: Oil Spill Contingency Plan WAC 173-182 and WAC 173-183 Rule Advisory
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.
J. Joyce: Oil Spill Contingency Plan WAC 173-182 and WAC 173-183 Rule Advisory
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
J. Joyce: Oil Spill Contingency Plan WAC 173-182 and WAC 173-183 Rule Advisory
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.
J. Joyce: Oil Spill Contingency Plan WAC 173-182 and WAC 173-183 Rule Advisory
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.
J. Joyce: Oil Spill Contingency Plan WAC 173-182 and WAC 173-183 Rule Advisory
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)
J. Joyce: Oil Spill Contingency Plan WAC 173-182 and WAC 173-183 Rule Advisory
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
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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
J. Joyce: Oil Spill Contingency Plan WAC 173-182 and WAC 173-183 Rule Advisory
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
J. Joyce: Oil Spill Contingency Plan WAC 173-182 and WAC 173-183 Rule Advisory
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
J. Joyce: Oil Spill Contingency Plan WAC 173-182 and WAC 173-183 Rule Advisory
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.