WASHINGTON STATE REGISTER

WSR 09-01-124

PROPOSED RULES

DEPARTMENT OF ECOLOGY

[ Order 08-14 -- Filed December 19, 2008, 2:14 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 08-16-107.

Title of Rule and Other Identifying Information: Preassessment screening and oil spill compensation schedule regulations (chapter 173-183 WAC). The department of ecology is proposing to amend the natural resource damage liability formula multipliers and multiplier descriptions used for the calculation of damages from oil spills into marine and estuarine waters, the Columbia River estuary, freshwater wetlands, and freshwater streams, rivers, and lakes.

Hearing Location(s): City of Federal Way City Hall, Council Chambers, 33325 8th Avenue South, Federal Way, WA 98003, contact information (253) 835-7000, workshop 10 a.m., public hearing 11 a.m., on January 27, 2009; at the Washington State University Vancouver Campus, Multi-Media Classroom, Building (VMCC), Room 6, 14204 N.E. Salmon Creek Avenue, Vancouver, WA 98686, contact information (360) 546-9588, workshop 6 p.m., public hearing 7 p.m., on January 28, 2009; and at Highline Community College, Artist-Lecture Center, Building 7, 2400 South 240th Street, Des Moines, WA 98198, contact information (206) 878-3710, workshop 6 p.m., public hearing 7 p.m., on February 2, 2009.

Date of Intended Adoption: March 10, 2009.

Submit Written Comments to: Harry Chichester, P.O. Box 47600, Olympia, WA 98504-7600, e-mail spillsrulemaking@ecy.wa.gov, phone (360) 407-7202, fax (360) 407-7288, received by 5 p.m. on February 9, 2009.

Assistance for Persons with Disabilities: Contact Harry Chichester at (360) 407-7202 by January 26, 2009. If you have hearing loss, call 711 for Washington Relay Service. If you have a speech disability, call (877) 833-6341.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of this proposal is to amend the compensation schedule mathematical formula multipliers in regulation so that the full range of compensation ($1 to $100 per gallon of oil spilled) required in state law can be calculated. Multiplier descriptions in regulation would also be changed to reflect the new ceiling value of $100 per gallon. This proposal would:

(1) Amend WAC 173-183-830(3), 173-183-840(2), 173-183-850(2), and 173-183-860(2), by replacing current multipliers with new multipliers that are capable of achieving the full range of compensation required in state law.

(2) Amend WAC 173-183-830(3), 173-183-840(2), 173-183-850(2), and 173-183-860(2), by replacing the $50 ceiling limit value with the new $100 ceiling limit described in state law.

Reasons Supporting Proposal: Chapter 347, Laws of 2007 (SB 5552) changed the upper limit of the natural resource damage assessment (NRDA) compensation range in RCW 90.48.366 from $50 to $100 per gallon of oil spilled. Current formula multipliers in chapter 173-183 WAC are mathematically incapable of achieving the full range of compensation required. This amendment proposal will make our rules consistent with law, allowing the full range of compensation to be calculated.

Statutory Authority for Adoption: RCW 90.48.366, 90.56.050, and 90.48.035.

Statute Being Implemented: Chapter 90.48 RCW as modified by 2007 legislature, chapter 347, Laws of 2007 (SB 5552).

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Washington department of ecology, governmental.

Name of Agency Personnel Responsible for Drafting: Harry Chichester, Department of Ecology, Headquarters, Lacey, Washington, (360) 407-7202; Implementation: Dave Byers, Department of Ecology, Headquarters, Lacey, Washington, (360) 407-6974; and Enforcement: Rebecca Post, Department of Ecology, Headquarters, Lacey, Washington, (360) 407-7114.

No small business economic impact statement has been prepared under chapter 19.85 RCW. A small business economic impact statement was not required for this rule making because it meets the exemption in RCW 19.85.025(3) referencing RCW 34.05.310(4). This rule making meets the exemption in RCW 34.05.310 (4)(e) because its content is "explicitly and specifically dictated by statute."

A cost-benefit analysis is not required under RCW 34.05.328. A cost-benefit analysis was not prepared because this is not a significant rule making. Its content is "explicitly and specifically dictated by statute," meeting the exemption in RCW 34.05.328 (5)(b)(v).

December 19, 2008

Polly Zehm

by Rob Duff

Acting Deputy Director

OTS-1819.1

AMENDATORY SECTION(Amending Order 03-03, filed 5/12/03, effective 6/12/03)

WAC 173-183-830 Calculation of damages for spills into marine and estuarine waters, except the Columbia River estuary. (1) The formula provided in subsection (2) of this section shall be used to determine damages liability for spills into marine and estuarine waters, except the estuarine waters of Columbia River. The value of the variables used in the formula shall be determined by:

(a) The OSC as enumerated in WAC 173-183-810(1);

(b) The mutually agreed upon independent expert, if applicable, as described in WAC 173-183-810(2); and

(2) In making the determination of percent-coverage of habitat types, the RDA committee chair may assume that the habitat-type visible at low tide extends out to the 20 meter depth contour.

(3) Damages liability shall be calculated using the following formula:

Damages ($) =

gallons spilled* ((~~0.1~~)) 0.208* [(OIL_AT*SVS_AT,j) +

(OIL_MI*SVS_MI,j) + (OIL_PER*SVS_PER,j)]

where: gallons spilled = the number of gallons of oil spilled as determined by the procedures outlined in WAC 173-183-810;

SVS_i,j = spill vulnerability score (from WAC 173-183-400(3));

OIL_AT = Acute Toxicity Score for Oil (from WAC 173-183-340);

OIL_MI = Mechanical Injury Score for Oil (from WAC 173-183-340); and

OIL_PER = Persistence Score for Oil (from WAC 173-183-340).

i = acute toxicity, mechanical injury and persistence effect of oil

j = the most sensitive season affected by the spill

((~~0.1~~)) 0.208 = multiplier to adjust the damages calculated to the $((~~1-50~~)) 1-100 per gallon range.

Formula results shall be rounded to the nearest 0.01 to determine damages liability as follows: Decimals less than 0.005 shall be rounded down, and decimals equal to or greater than 0.005 shall be rounded up.

[Statutory Authority: Chapter 90.48 RCW. 03-11-010 (Order 03-03), § 173-183-830, filed 5/12/03, effective 6/12/03; 92-10-005 (Order 91-13), § 173-183-830, filed 4/23/92, effective 5/24/92.]

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending Order 91-13, filed 4/23/92, effective 5/24/92)

WAC 173-183-840 Calculation of damages for spills into the Columbia River estuary. (1) The formula provided in subsection (2) of this section shall be used to determine damages liability for spills into the estuarine waters of Columbia River. The value of the variables used in the formula shall be determined by:

(a) The OSC as enumerated in WAC 173-183-810(1);

(b) The mutually agreed upon independent expert, if applicable, as described in WAC 173-183-810(2); and

(2) Damages liability shall be calculated using the following formula:

Damages ($) =

gallons spilled* ((~~0.2~~)) 0.508*SVS_j*(OIL_AT+OIL_MI+OIL_PER)

where: gallons spilled = the number of gallons of oil spilled as determined by procedures outlined in WAC 173-183-810

SVS_j = spill vulnerability score (from WAC 173-183-500(3));

j = the most sensitive season affected by the spill

OIL_AT = Acute Toxicity Score for Oil (from WAC 173-183-360);

OIL_MI = Mechanical Injury Score for Oil (from WAC 173-183-360); and

OIL_PER = Persistence Score for Oil (from WAC 173-183-360).

((~~0.2~~)) 0.508 = multiplier to adjust the damages calculated to the $((~~1-50~~)) 1-100 per gallon range.

Formula results shall be rounded to the nearest 0.01 to determine damages liability as follows: Decimals less than 0.005 shall be rounded down, and decimals equal to or greater than 0.005 shall be rounded up.

[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), § 173-183-840, filed 4/23/92, effective 5/24/92.]

AMENDATORY SECTION(Amending Order 03-03, filed 5/12/03, effective 6/12/03)

WAC 173-183-850 Calculation of damages for spills in freshwater streams, rivers, and lakes. (1) The formula provided in subsection (2) of this section shall be used to determine damages liability for spills into freshwater streams, rivers, and lakes. The value of the variables used in the formula shall be determined by:

(a) The OSC as enumerated in WAC 173-183-810(1);

(b) The mutually agreed upon independent expert, if applicable, as described in WAC 173-183-810(2); and

(2) Damages liability shall be calculated using the following formula:

Damages ($) =

gallons spilled* ((~~0.08~~)) 0.162* SVS* (OIL_AT +OIL_MI + OIL_PER)

where: gallons spilled = the number of gallons of oil spilled as determined by the procedures outlined in WAC 173-183-810;

SVS = Spill vulnerability score [from WAC 173-183-600(3)];

OIL_AT = Acute Toxicity Score for Oil [from WAC 173-183-340];

OIL_MI = Mechanical Injury Score for Oil [from WAC 173-183-340]; and

OIL_PER = Persistence Score for Oil [from WAC 173-183-340].

((~~0.08~~)) 0.162 = multiplier to adjust damages calculated to the $((~~1-50~~)) 1-100 per gallon range;

Formula results shall be rounded to the nearest 0.01 to determine damages liability as follows: Decimals less than 0.005 shall be rounded down, and decimals equal to or greater than 0.005 shall be rounded up.

[Statutory Authority: Chapter 90.48 RCW. 03-11-010 (Order 03-03), § 173-183-850, filed 5/12/03, effective 6/12/03; 92-10-005 (Order 91-13), § 173-183-850, filed 4/23/92, effective 5/24/92.]

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending Order 03-03, filed 5/12/03, effective 6/12/03)

WAC 173-183-860 Calculation of damages for spills into freshwater wetlands. (1) The formula provided in subsection (2) of this section shall be used to determine damages liability for spills into freshwater wetlands. The value of the variables used in the formula shall be determined by:

(a) The OSC as enumerated in WAC 173-183-810(1);

(b) The mutually agreed upon independent expert, if applicable, as described in WAC 173-183-810(2); and

(2) Damages liability shall be calculated using the following formula:

Damages ($) =

gallons spilled* ((~~0.81~~)) 1.620* SVS* (OIL_AT +OIL_MI + OIL_PER)

where: gallons spilled = the number of gallons of oil spilled as determined by procedures outlined in WAC 173-183-810;

SVS = Spill vulnerability score [from WAC 173-183-700(3)];

OIL_AT= Acute Toxicity Score for Oil [from WAC 173-183-340];

OIL_MI = Mechanical Injury Score for Oil [from WAC 173-183-340]; and

OIL_PER = Persistence Score for Oil [from WAC 173-183-340].

((~~0.81~~)) 1.620 = multiplier to adjust damages calculated to the $((~~1-50~~)) 1-100 per gallon range;

Formula results shall be rounded to the nearest 0.01 to determine damages liability as follows: Decimals less than 0.005 shall be rounded down, and decimals equal to or greater than 0.005 shall be rounded up.

[Statutory Authority: Chapter 90.48 RCW. 03-11-010 (Order 03-03), § 173-183-860, filed 5/12/03, effective 6/12/03; 92-10-005 (Order 91-13), § 173-183-860, filed 4/23/92, effective 5/24/92.]

Damages ($) =
		gallons spilled* ((~~0.1~~)) 0.208* [(OIL_AT*SVS_AT,j) +
		(OIL_MISVS_MI,j) + (OIL_PERSVS_PER,j)]
where:		gallons spilled = the number of gallons of oil spilled as determined by the procedures outlined in WAC 173-183-810;
		SVS_i,j = spill vulnerability score (from WAC 173-183-400(3));
		OIL_AT = Acute Toxicity Score for Oil (from WAC 173-183-340);
		OIL_MI = Mechanical Injury Score for Oil (from WAC 173-183-340); and
		OIL_PER = Persistence Score for Oil (from WAC 173-183-340).
		i = acute toxicity, mechanical injury and persistence effect of oil
		j = the most sensitive season affected by the spill
		((~~0.1~~)) 0.208 = multiplier to adjust the damages calculated to the $((~~1-50~~)) 1-100 per gallon range.

Damages ($) =
		gallons spilled* ((~~0.2~~)) 0.508SVS_j(OIL_AT+OIL_MI+OIL_PER)
where:		gallons spilled = the number of gallons of oil spilled as determined by procedures outlined in WAC 173-183-810
		SVS_j = spill vulnerability score (from WAC 173-183-500(3));
		j = the most sensitive season affected by the spill
		OIL_AT = Acute Toxicity Score for Oil (from WAC 173-183-360);
		OIL_MI = Mechanical Injury Score for Oil (from WAC 173-183-360); and
		OIL_PER = Persistence Score for Oil (from WAC 173-183-360).
		((~~0.2~~)) 0.508 = multiplier to adjust the damages calculated to the $((~~1-50~~)) 1-100 per gallon range.

Damages ($) =
		gallons spilled* ((~~0.08~~)) 0.162* SVS* (OIL_AT +OIL_MI + OIL_PER)
where:		gallons spilled = the number of gallons of oil spilled as determined by the procedures outlined in WAC 173-183-810;
		SVS = Spill vulnerability score [from WAC 173-183-600(3)];
		OIL_AT = Acute Toxicity Score for Oil [from WAC 173-183-340];
		OIL_MI = Mechanical Injury Score for Oil [from WAC 173-183-340]; and
		OIL_PER = Persistence Score for Oil [from WAC 173-183-340].
		((~~0.08~~)) 0.162 = multiplier to adjust damages calculated to the $((~~1-50~~)) 1-100 per gallon range;

Damages ($) =
		gallons spilled* ((~~0.81~~)) 1.620* SVS* (OIL_AT +OIL_MI + OIL_PER)
where:		gallons spilled = the number of gallons of oil spilled as determined by procedures outlined in WAC 173-183-810;
		SVS = Spill vulnerability score [from WAC 173-183-700(3)];
		OIL_AT= Acute Toxicity Score for Oil [from WAC 173-183-340];
		OIL_MI = Mechanical Injury Score for Oil [from WAC 173-183-340]; and
		OIL_PER = Persistence Score for Oil [from WAC 173-183-340].
		((~~0.81~~)) 1.620 = multiplier to adjust damages calculated to the $((~~1-50~~)) 1-100 per gallon range;

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