71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 926
A-Engrossed
House Bill 2150
Ordered by the House March 15
Including House Amendments dated March 15
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Governor John A. Kitzhaber,
M.D., for Department of Environmental Quality)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Changes fee assessed by Department of Environmental Quality on
cargo vessels, tank vessels and onshore and offshore facilities
for Oil Spill Prevention Fund. Specifies that department is state
agency responsible for overall management of threatened spills or
releases and of cleanup of oil or hazardous material spills or
releases. { - Increases financial responsibility requirements
for vessels over 300 gross tons. - } { + Requires Environmental
Quality Commission to adopt rules defining oil spill response
zones and prescribing amount of containment and cleanup equipment
required to be regularly located in those zones. + } Directs
department to establish task force to investigate ways to reduce
oil and hazardous material spills and releases. { + Eliminates
requirement that maritime pilot report owner or operator of ship
who does not have proof of financial responsibility. + }
Declares emergency, effective July 1, 2001.
A BILL FOR AN ACT
Relating to spill prevention; creating new provisions; amending
ORS 468.140, 468B.300, 468B.350, 468B.370, 468B.390, 468B.395
and 468B.405; repealing ORS 468B.480 and 468B.490; and
declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 468B.300 is amended to read:
468B.300. As used in ORS 468.020, 468.095, 468.140 (3) and
468B.300 to 468B.500:
(1) 'Bulk' means material stored or transported in loose,
unpackaged liquid, powder or granular form capable of being
conveyed by a pipe, bucket, chute or belt system.
(2) 'Cargo vessel' means a self-propelled ship in commerce,
other than a tank vessel, of 300 gross tons or more. 'Cargo
vessel' does not include a vessel used solely for commercial fish
harvesting.
(3) 'Commercial fish harvesting' means taking food fish with
any gear unlawful for angling under ORS 506.006, or taking food
fish in excess of the limits permitted for personal use, or
taking food fish with the intent of disposing of such food fish
or parts thereof for profit, or by sale, barter or trade, in
commercial channels.
(4) 'Contingency plan' means an oil spill prevention and
emergency response plan required under ORS 468B.345.
(5) 'Covered vessel' means a tank vessel, cargo vessel or
passenger vessel.
(6) 'Damages' includes damages, costs, losses, penalties or
attorney fees of any kind for which liability may exist under the
laws of this state resulting from, arising out of or related to
the discharge or threatened discharge of oil.
(7) 'Discharge' means any emission other than natural seepage
of oil, whether intentional or unintentional. ' Discharge'
includes but is not limited to spilling, leaking, pumping,
pouring, emitting, emptying or dumping oil.
(8) 'Exploration facility' means a platform, vessel or other
offshore facility used to explore for oil in the navigable waters
of the state. 'Exploration facility' does not include platforms
or vessels used for stratigraphic drilling or other operations
that are not authorized or intended to drill to a producing
formation.
(9) 'Facility' means { + a pipeline or + } any structure,
group of structures, equipment { - , pipeline - } or device,
other than a vessel located on or near navigable waters of a
state, that is used for producing, storing, handling,
transferring, processing or transporting oil in bulk and that is
capable of storing or transporting 10,000 or more gallons of oil.
'Facility' does not include:
(a) A railroad car, motor vehicle or other rolling stock while
transporting oil over the highways or rail lines of this state;
(b) An underground storage tank regulated by the Department of
Environmental Quality or a local government under ORS 466.706 to
466.882 and 466.994; or
(c) Any structure, group of structures, equipment { - ,
pipeline - } or device, other than a vessel located on or near
navigable waters of a state, that is used for producing, storing,
handling, transferring, processing or transporting oil in bulk
and that is capable of storing or transporting 10,000 or more
gallons of oil but does not receive oil from tank vessels, barges
or pipelines.
(10) 'Federal on-scene coordinator' means the federal official
predesignated by the United States Environmental Protection
Agency or the United States Coast Guard to coordinate and direct
federal responses or the official designated by the lead agency
to coordinate and direct removal under the National Contingency
Plan.
(11) 'Hazardous material' has the meaning given that term in
ORS 466.605.
(12) 'Maritime association' means an association or cooperative
of marine terminals, facilities, vessel owners, vessel operators,
vessel agents or other maritime industry groups, that provides
oil spill response planning and spill related communications
services within the state.
(13) 'Maximum probable spill' means the maximum probable spill
for a vessel operating in the navigable waters of the state
considering the history of spills of vessels of the same class
operating on the west coast of the United States.
(14) 'Navigable waters' means the Columbia River, the
Willamette River up to Willamette Falls, the Pacific Ocean and
estuaries to the head of tidewater.
(15) 'National Contingency Plan' means the plan prepared and
published under section 311(d) of the Federal Water Pollution
Control Act, 33 U.S.C. 1321(d), as amended by the Oil Pollution
Act of 1990 (P.L. 101-380).
(16) 'Offshore facility' means any facility located in, on or
under any of the navigable waters of the state.
(17) 'Oils' or 'oil' means oil, including gasoline, crude oil,
fuel oil, diesel oil, lubricating oil, sludge, oil refuse and any
other petroleum related product.
(18) 'Onshore facility' means any facility located in, on or
under any land of the state, other than submerged land, that,
because of its location, could reasonably be expected to cause
substantial harm to the environment by discharging oil into or on
the navigable waters of the state or adjoining shorelines.
(19) 'Passenger vessel' means a ship of 300 or more gross tons
carrying passengers for compensation.
(20) 'Person' has the meaning given the term in ORS 468.005.
(21) 'Person having control over oil' includes but is not
limited to any person using, storing or transporting oil
immediately prior to entry of such oil into the navigable waters
of the state, and shall specifically include carriers and bailees
of such oil.
(22) 'Pipeline' means { - an onshore - } { + a + }
facility, including piping, compressors, pump stations and
storage tanks, used to transport oil between facilities or
between facilities and tank vessels.
(23) 'Region of operation' with respect to the holder of a
contingency plan means the area where the operations of the
holder that require a contingency plan are located.
(24) 'Removal costs' means the costs of removal that are
incurred after a discharge of oil has occurred or, in any case in
which there is a substantial threat of a discharge of oil, the
costs to prevent, minimize or mitigate oil pollution from the
incident.
(25) 'Responsible party' has the meaning given under section
1001 of the Oil Pollution Act of 1990 (P.L. 101-380).
(26) 'Ship' means any boat, ship, vessel, barge or other
floating craft of any kind.
{ + (27)(a) 'State on-scene coordinator' means the state
official appointed by the Department of Environmental Quality to
represent the department and the State of Oregon in response to
an oil or hazardous material spill or release or threatened spill
or release and to coordinate cleanup response with state and
local agencies.
(b) For purposes of this subsection:
(A) 'Spill or release' means the discharge, deposit, injection,
dumping, spilling, emitting, releasing, leaking or placing of any
oil or hazardous material into the air or into or on any land or
waters of this state except as authorized by a permit issued
under ORS chapter 454, 459, 459A, 468, 468A, 468B or 469 or ORS
466.005 to 466.385, 466.990 (1) and (2) or 466.992 or federal
law, or except when being stored or used for its intended
purpose.
(B) 'Threatened spill or release' means that oil or hazardous
material is likely to escape or be carried into the air or into
or on any land or waters of this state. + }
{ - (27) - } { + (28) + } 'Tank vessel' means a ship that
is constructed or adapted to carry oil in bulk as cargo or cargo
residue. 'Tank vessel' does not include:
(a) A vessel carrying oil in drums, barrels or other packages;
(b) A vessel carrying oil as fuel or stores for that vessel; or
(c) An oil spill response barge or vessel.
{ - (28) - } { + (29) + } 'Worst case spill' means:
(a) In the case of a vessel, a spill of the entire cargo and
fuel of the tank vessel complicated by adverse weather
conditions; and
(b) In the case of an onshore or offshore facility, the largest
foreseeable spill in adverse weather conditions.
SECTION 2. ORS 468B.350 is amended to read:
468B.350. (1) { - On or before July 1, 1992, - } The
Environmental Quality Commission shall adopt { - by rule - }
{ + rules defining:
(a) + } Standards for the preparation of contingency plans for
facilities and covered vessels { + ; and
(b) Oil spill response zones within the navigable waters of the
state and the amount of equipment identified in an oil spill
contingency plan that is required to be regularly located in
those zones + }.
(2) The rules adopted under subsection (1) of this section
shall be coordinated with rules and regulations adopted by the
State of Washington and the United States Coast Guard and shall
require contingency plans that at a minimum meet the following
standards. The plan shall:
(a) Include complete details concerning the response to oil
spills of various sizes from any covered vessel or facility
covered by the contingency plan.
(b) To the maximum extent practicable, be designed, in terms of
personnel, materials and equipment, to:
(A) Remove oil and minimize any damage to the environment
resulting from a maximum probable spill; and
(B) Remove oil and minimize any damage to the environment
resulting from a worst case spill.
(c) Consider the nature and number of facilities and marine
terminals in a geographic area and the resulting ability of a
facility to finance a plan and pay for department review.
(d) Describe how the contingency plan relates to and is
coordinated with the response plan developed by the Department of
Environmental Quality under ORS 468B.495 and 468B.500 and any
relevant contingency plan prepared by a cooperative, port,
regional entity, the state or the federal government in the same
area of the state covered by the plan.
(e) Provide procedures for early detection of an oil spill and
timely notification of appropriate federal, state and local
authorities about an oil spill in accordance with applicable
state and federal law.
(f) Demonstrate ownership of or access to an emergency response
communications network covering all locations of operation or
transit by a covered vessel. The emergency response
communications network also shall provide for immediate
notification and continual emergency communications during
cleanup response.
(g) State the number, training preparedness and fitness of all
dedicated, pre-positioned personnel assigned to direct and
implement the plan.
(h) Incorporate periodic training and drill programs to
evaluate whether the personnel and equipment provided under the
plan are in a state of operational readiness at all times.
(i) State the means of protecting and mitigating the effects of
a spill on the environment, including fish, marine mammals and
other wildlife, and insuring that implementation of the plan does
not pose unacceptable risks to the public or to the environment.
(j) Provide a detailed description of equipment, training and
procedures to be used by the crew of a vessel, or the crew of a
tugboat involved in the operation of a nonself-propelled tank
vessel, to minimize vessel damage, stop or reduce spilling from
the vessel and only when appropriate and the vessel's safety is
assured, contain and clean up the spilled oil.
(k) Provide arrangements { + by contract or other approved
means + } for pre-positioning oil spill containment { +
equipment, + } { - and - } cleanup equipment { + , dedicated
response vessels + } and trained personnel at strategic locations
from which the personnel and equipment can be deployed to the
spill site to promptly and properly remove the spilled oil.
(L) Provide arrangements for enlisting the use of qualified and
trained cleanup personnel to implement the plan.
(m) Provide for disposal of recovered oil in accordance with
local, state and federal laws.
(n) State the measures that have been taken to reduce the
likelihood a spill will occur, including but not limited to
design and operation of a vessel or facility, training of
personnel, number of personnel and backup systems designed to
prevent a spill.
(o) State the amount and type of equipment { + and the
dedicated response vessels + } available { + by contract or
other approved means + } to respond to a spill, where the
equipment { - is - } { + and vessels are + } located and the
extent to which other contingency plans rely on the same
equipment { + and vessels + }.
(p) If the commission has adopted rules permitting the use of
dispersants, describe the circumstances and the manner for the
application of dispersants in conformance with the rules of the
commission.
{ + (3) As used in this section:
(a) 'Contract or other approved means' means:
(A) A written contract between a covered vessel or facility
owner or operator and an oil spill removal organization that
identifies and ensures the availability of specified personnel
and equipment within stipulated response times in specified oil
spill response zones;
(B) Certification by the vessel or facility owner or operator
that specified personnel and equipment are owned, operated or
under the direct control of the vessel or facility owner or
operator and are available within stipulated response times in
specified oil spill response zones;
(C) Active membership in a local or regional oil spill removal
organization that has identified specified personnel and
equipment that are available to respond to an oil spill within
stipulated response times in specified oil spill response zones;
or
(D) A written document that:
(i) Identifies personnel, equipment and services capable of
being provided by the oil spill removal organization within
stipulated response times in specified oil spill response zones;
(ii) Acknowledges that the oil spill removal organization
intends to commit the identified resources in the event of an oil
spill;
(iii) Permits the commission to verify the availability of the
identified oil spill removal resources through tests, inspections
and exercises; and
(iv) Is referenced in an oil spill contingency plan for the
vessel or facility.
(b) 'Dedicated response vessel' means a vessel that limits
service exclusively to recovering and transporting spilled oil,
tanker escorting, deploying oil spill response equipment,
supplies and personnel, spill response related training, testing,
exercises and research, or other oil spill removal and related
activities. + }
SECTION 3. ORS 468B.370 is amended to read:
468B.370. (1)(a) The Environmental Quality Commission by rule
shall adopt procedures to determine the adequacy of a contingency
plan approved { + or filed for approval + } under ORS 468B.365.
(b) The rules shall require random practice drills without
prior notice to test the adequacy of the responding entities. The
rules may provide for unannounced practice drills of an
individual contingency plan.
(c) The rules may require the contingency plan holder to
publish a report on the drills. This report shall include an
assessment of response time and available equipment and personnel
compared to those listed in the contingency plan relying on the
responding entities and requirements, if any, for changes in the
plans or their implementation. The Department of Environmental
Quality shall review the report and assess the adequacy of the
drill.
(d) The department may require additional drills and changes in
arrangements for implementing the approved plan that are
necessary to insure the effective implementation of the plan.
(2) The Environmental Quality Commission by rule may require
any tank vessel carrying oil as cargo in the navigable waters of
the state to:
(a) Place booms, in-water sensors or other detection equipment
around tank vessels during transfers of oil; and
(b) Submit to the department evidence of a structural and
mechanical integrity inspection of the tank vessel equipment and
hull structures.
(3) A tank vessel that is conducting, or is available only for
conducting, oil discharge response operations is exempt from the
requirements of subsection (1) of this section if the tank vessel
has received prior approval of the department. The department may
approve exemptions under this subsection upon application and
presentation of information required by the department.
SECTION 4. ORS 468B.390 is amended to read:
468B.390. (1) No person shall cause or permit the operation of
a facility in the state unless the person has proof of compliance
with Section 1016 of the Federal Oil Pollution Act of 1990
(P.L. 101-380), if such compliance is required by federal law.
(2) No person may cause or permit the operation of an offshore
exploration or production facility in the state unless the person
has proof of compliance with Section 1016 of the Federal Oil
Pollution Act of 1990 (P.L. 101-380).
(3) Except for a barge that does not carry oil as cargo or fuel
or a spill response vessel or barge, the owner of any vessel over
300 gross tons { + in the waters of this state + } shall have
proof of financial responsibility for the following vessels:
(a) For tank vessels over 300 gross tons:
(A) $1,200 per gross ton or $2 million for vessels of 3,000
gross tons or less, whichever is greater; and
(B) $1,200 per gross ton or $10 million for vessels over 3,000
gross tons, whichever is greater; or
(b) For any other covered vessel over 300 gross tons { +
carrying oil only for use as fuel + }, $600 per gross ton or
$500,000, whichever is greater.
(4) { - On or before January 1, 1992, - } The Department of
Environmental Quality shall enter into an agreement with the
United States Coast Guard to receive notification of
noncompliance with the provisions of this section.
{ + (5) The financial assurance requirement established under
subsection (3) of this section shall meet the liability to the
state for:
(a) Actual costs for removal of spilled oil;
(b) Civil penalties and fines imposed in connection with oil
spills; and
(c) Natural resource damage. + }
SECTION 5. ORS 468B.395 is amended to read:
468B.395. The Department of Environmental Quality shall:
(1) In cooperation with other natural resource agencies,
develop a method of natural resource valuation that fully
incorporates nonmarket and market values in assessing damages
resulting from oil discharges;
(2) Work with other potentially affected states to develop a
joint oil discharge prevention education program for operators of
fishing vessels, ferries, ports, cruise ships and marinas;
(3) Review the adequacy of and make recommendations for
improvements in equipment, operating procedures and the
appropriateness of west coast locations for transfer of oil;
(4) In cooperation with industry and the United States Coast
Guard, develop local programs to provide oil discharge response
training to fishing boat operators and marinas;
(5) { + Act as the state agency responsible for the overall
management of the environmental cleanup of oil or hazardous
material spills or releases, which shall include:
(a) + } { - Adopt - } { + Adoption of + } an incident
command system to enhance the department's ability to manage
responses to a major oil
{ - discharge - } { + or hazardous material spill or release;
and
(b) Appointment of a state on-scene coordinator for any major
incident involving an oil or hazardous material spill or release
or threatened spill or release + };
(6) Coordinate oil spill research with other west coast states
and develop a framework for information sharing and combined
funding of research projects;
(7) Annually review and revise the interagency response plan
for oil { + and hazardous material + } spills { + or
releases + } in { - certain - } navigable waters of the state
developed under ORS 468B.495 and 468B.500;
(8) On the Oregon coast, assist affected local agencies and
industry groups to complete an inventory of existing plans and
resources and to identify or establish an organization to
coordinate oil spill contingency planning as part of the
alternative schedule adopted for the Oregon coast described in
ORS 468B.355 (1);
(9) Where adequate resources do not exist to prevent, contain,
clean up and mitigate { - potential - } oil spills { + or
threatened spills + }, assist local agencies and industry groups
to secure necessary funds and equipment; and
(10) In its annual review and revision of the plan developed
under ORS 468B.495 and 468B.500:
(a) Consult with all affected local, state and federal
agencies, municipal and community officials and representatives
of industry;
(b) Provide training in the use of the plan; and
(c) Conduct spill exercises to test the adequacy of the plan.
SECTION 6. ORS 468B.405 is amended to read:
468B.405. (1) The Department of Environmental Quality shall
assess { + the following + } fees on covered vessels and
offshore and onshore facilities to recover the costs of reviewing
the plans and conducting the inspections, exercises, training and
activities required under ORS 468B.345 to 468B.400 { + : + }
{ - . - }
{ - (2) The fees assessed by the department on cargo vessels
and nonself-propelled tank vessels under subsection (1) of this
section shall be: - }
(a) On all cargo vessels, { - $25 - } { + $48 + } per trip.
(b) On all nonself-propelled tank vessels, { - $28 - }
{ + $42 + } per trip.
{ + (c) On all self-propelled tank vessels of 300 gross tons
or less, $42 per trip.
(d) On all self-propelled tank vessels over 300 gross
tons, $836 per trip.
(e) On all offshore and onshore facilities, $4,500 per
year. + }
{ - (3) As used in this subsection, 'trip' means travel to
the appointed destination and return travel to the point of
origin within the navigable waters of Oregon. For the purpose of
assessing trip fees under this section, self-propelled tank
vessels transiting the navigable waters of the state in ballast
shall be considered cargo vessels. - }
{ - (4) The Environmental Quality Commission shall establish
by rule a schedule of fees to be assessed under subsection (1) of
this section on offshore facilities, onshore facilities and on
self-propelled tank vessels in an amount not to exceed $153,600
per year for all such facilities and vessels. - }
{ - (5) - } { + (2) + } Moneys collected under this section
shall be deposited in the State Treasury to the credit of the Oil
Spill Prevention Fund established under ORS 468B.410.
{ + (3) As used in this section, 'trip' means travel to the
appointed destination and return travel to the point of origin
within the navigable waters of this state. For the purpose of
assessing trip fees under this section, self-propelled tank
vessels transiting the navigable waters of this state in ballast
shall be considered cargo vessels. + }
SECTION 7. ORS 468.140 is amended to read:
468.140. (1) In addition to any other penalty provided by law,
any person who violates any of the following shall incur a civil
penalty for each day of violation in the amount prescribed by the
schedule adopted under ORS 468.130:
(a) The terms or conditions of any permit required or
authorized by law and issued by the Department of Environmental
Quality or a regional air quality control authority.
(b) Any provision of ORS 164.785, 448.305, 454.010 to 454.040,
454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755, ORS
chapter 467 and ORS chapters 468, 468A and 468B.
(c) Any rule or standard or order of the Environmental Quality
Commission adopted or issued pursuant to ORS 448.305, 454.010 to
454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to
454.755, ORS chapter 467 and ORS chapters 468, 468A and 468B.
(d) Any term or condition of a variance granted by the
commission or department pursuant to ORS 467.060.
(e) Any rule or standard or order of a regional authority
adopted or issued under authority of ORS 468A.135.
(f) The financial assurance requirement under ORS
{ - 468B.480 - } { + 468B.390 + } and 468B.485 or any rule
related to the financial assurance requirement under ORS
{ - 468B.480 - } { + 468B.390 + }.
(2) Each day of violation under subsection (1) of this section
constitutes a separate offense.
(3)(a) In addition to any other penalty provided by law, any
person who intentionally or negligently causes or permits the
discharge of oil into the waters of the state shall incur a civil
penalty not to exceed the amount of $20,000 for each violation.
(b) In addition to any other penalty provided by law, the
following persons shall incur a civil penalty not to exceed the
amount of $10,000 for each day of violation:
(A) Any person who violates the terms or conditions of a permit
authorizing waste discharge into the air or waters of the state.
(B) Any person who violates any law, rule, order or standard in
ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to
454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B
relating to air or water pollution.
(C) Any person who violates the provisions of a rule adopted or
an order issued under ORS 459A.590.
(4) In addition to any other penalty provided by law, any
person who violates the provisions of ORS 468B.130 shall incur a
civil penalty not to exceed the amount of $500 for each day of
violation.
(5) Subsection (1)(c) and (e) of this section does not apply to
violations of motor vehicle emission standards which are not
violations of standards for control of noise emissions.
(6) Notwithstanding the limits of ORS 468.130 (1) and in
addition to any other penalty provided by law, any person who
intentionally or negligently causes or permits open field burning
contrary to the provisions of ORS 468A.555 to 468A.620 and
468A.992, 476.380 and 478.960 shall be assessed by the department
a civil penalty of at least $20 but not more than $40 for each
acre so burned. Any fines collected by the department pursuant to
this subsection shall be deposited with the State Treasurer to
the credit of the General Fund and shall be available for general
governmental expense. As used in this subsection, 'open field
burning' does not include propane flaming of mint stubble.
SECTION 8. { + In order to provide a more safe and clean
environment by preventing and reducing spills of oil or hazardous
materials from storage and handling sites located in this state,
the Department of Environmental Quality shall:
(1) Establish a task force to consider methods by which the
department can minimize environmental impacts from oil and
hazardous material spills, including but not limited to:
(a) Evaluating the need for spill contingency planning and
standardized spill preparedness measures;
(b) Evaluating the need for coordination with local and state
emergency responders;
(c) Developing employee training and contingency plans for
sites storing and handling oil and hazardous materials; and
(d) Assessing the benefits of providing technical assistance
from the department to persons using, storing, handling or
producing oil or hazardous materials.
(2) Include in the task force established pursuant to
subsection (1) of this section at least the following parties:
(a) Representatives of industries using, storing, handling or
producing oil or hazardous materials;
(b) Members of the public; and
(c) Representatives of local, state and federal agencies.
(3) Report to the Seventy-second Legislative Assembly, no later
than January 31, 2003, on the progress of the department in
developing spill preparedness strategies. + }
SECTION 9. { + Section 8 of this 2001 Act is repealed on
December 31, 2003. + }
SECTION 10. { + ORS 468B.480 and 468B.490 are repealed. + }
SECTION 11. { + This 2001 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2001 Act takes effect
July 1, 2001. + }
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