00 HOUSE CS FOR CS FOR SENATE BILL NO. 273(RES) 01 "An Act regarding oil discharge prevention, and relating to contingency plans and 02 proof of financial responsibility for all self-propelled nontank vessels exceeding 400 03 gross registered tonnage and for railroad tank cars; authorizing inspection of 04 nontank vessels and trains; and providing for an effective date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. The uncodified law of the State of Alaska is amended by adding a new 07 section to read: 08 LEGISLATIVE INTENT FOR ACT. The provisions of this Act do not alter the 09 liability requirements of AS 46 with respect to contingency plan holders, parties responsible 10 for the discharge of oil, or oil spill response action contractors under AS 46.03 and AS 46.04. 11 * Sec. 2. AS 46.04.030(e) is amended to read: 12 (e) The department may attach reasonable terms and conditions to its approval 13 or modification of a contingency plan that the department determines are necessary to 14 ensure that the applicant for a contingency plan has access to sufficient resources to 01 protect environmentally sensitive areas and to contain, clean up, and mitigate potential 02 oil discharges from the facility or vessel as provided in (k) of this section, and to 03 ensure that the applicant complies with the contingency plan. If a contingency plan 04 submitted to the department for approval relies on the services of an oil spill primary 05 response action contractor, the department may not approve the contingency plan 06 unless the primary response action contractor is registered and approved under 07 AS 46.04.035 ; however, for purposes of this chapter, unless a primary response 08 action contractor that is organized as a nonprofit corporation is specifically 09 identified in the contingency plan as the contingency plan holder having the 10 obligation to carry out procedures identified in the plan that are the responsibility 11 of the holder of the plan, the primary response action contractor that performs 12 the obligations that are described in the contingency plan is not considered a 13 contingency plan holder for purposes of this section . The contingency plan must 14 provide for the use by the applicant of the best technology that was available at the 15 time the contingency plan was submitted or renewed. The department may require an 16 applicant or holder of an approved contingency plan to take steps necessary to 17 demonstrate its ability to carry out the contingency plan, including 18 (1) periodic training; 19 (2) response team exercises; and 20 (3) verifying access to inventories of equipment, supplies, and 21 personnel identified as available in the approved contingency plan. 22 * Sec. 3. AS 46.04 is amended by adding a new section to read: 23 Sec. 46.04.055. Nontank vessels and railroad tank cars. (a) A person may 24 not cause or permit the operation of a nontank vessel within the waters of the state or 25 cause or permit the transfer of oil to or from a nontank vessel unless 26 (1) effective April 1, 2002, an oil discharge prevention and contingency 27 plan has been approved by the department and the person is in compliance with the 28 plan; a plan under this paragraph is subject to the requirements of AS 46.04.030; and 29 (2) the person has furnished to the department and the department has 30 approved proof of financial ability to respond to damages meeting the requirements of 31 AS 46.04.040; proof of financial responsibility required under this paragraph is subject 01 to adjustment of dollar amounts under AS 46.04.045 and is established, for a nontank 02 vessel that carries 03 (A) only persistent product as fuel or in bulk, at $300 per 04 incident for each barrel of persistent product storage capacity or $5,000,000, 05 whichever is greater; 06 (B) only nonpersistent product, at $100 per incident for each 07 barrel of nonpersistent product storage capacity or $1,000,000, whichever is 08 greater; and 09 (C) both persistent product, as fuel or in bulk, and nonpersistent 10 product, at the applicable financial responsibility rate established in (A) or (B) 11 of this paragraph for the storage capacity of the vessel for persistent product 12 or nonpersistent product that predominates on the vessel. 13 (b) A person may not transport oil by railroad tank car or cause or permit the 14 transfer of oil to or from a railroad tank car unless 15 (1) effective April 1, 2002, an oil discharge prevention and contingency 16 plan has been approved by the department and the person is in compliance with the 17 plan; a plan under this paragraph is subject to the requirements of AS 46.04.030; and 18 (2) the person has furnished to the department and the department has 19 approved proof of financial ability to respond to damages meeting the requirements of 20 AS 46.04.040; proof of financial responsibility required under this paragraph is subject 21 to adjustment of dollar amounts under AS 46.04.045 and is established at 22 (A) $300 per incident for each barrel of persistent product based 23 on the maximum amount of persistent product storage capacity of any train on 24 the railroad; and 25 (B) $100 per incident for each barrel of nonpersistent product 26 based upon the maximum amount of nonpersistent product storage capacity of 27 any train on the railroad or $1,000,000, whichever is greater. 28 (c) Effective April 1, 2002, for purposes of AS 46.04.030(k), response 29 planning standards apply to nontank vessels and railroad tank cars as follows: 30 (1) for a nontank vessel contingency plan required by (a)(1) of this 31 section, 01 (A) containment and control of 15 percent of the maximum oil 02 capacity of the nontank vessel within 48 hours; and 03 (B) cleanup of the discharge within the shortest possible time 04 consistent with minimizing damage to the environment; 05 (2) for a railroad tank car contingency plan required by (b)(1) of this 06 section, 07 (A) containment and control of 15 percent of the maximum oil 08 capacity of a train on the railroad within 48 hours; and 09 (B) cleanup of the discharge within the shortest possible time 10 consistent with minimizing damage to the environment. 11 (d) Notwithstanding the requirements of AS 46.04.040(l) and AS 46.04.047, 12 for purposes of (a)(2) and (b)(2) of this section, an applicant may provide evidence of 13 financial responsibility provided by an insurer or other person who does not agree to 14 be subject to direct action in state courts or to appoint an agent for service of process. 15 (e) The requirements of (a) - (d) of this section do not apply to a nontank 16 vessel operating in the waters of the state if the nontank vessel 17 (1) is engaged in innocent passage; for purposes of this paragraph, a 18 nontank vessel is engaged in innocent passage if its operation in state waters would 19 constitute innocent passage under the Convention on the Territorial Sea and the 20 Contiguous Zone, April 29, 1958, 15 U.S.T. 1606, or the United Nations Convention 21 on the Law of the Sea 1982, December 10, 1982, U.N. Publication No. E 83.V.5, 21 22 I.L.M. 1261 (1982); 23 (2) enters state waters because of imminent danger to the crew, or in 24 an effort to prevent an oil spill or other harm to public safety or the environment, and 25 are inapplicable only until the vessel is able to leave state waters as soon as it may do 26 so without imminent risk of harm to the crew, public safety, or the environment; or 27 (3) enters state waters after the United States Coast Guard has 28 determined that the vessel is in distress, and are inapplicable only until the vessel is 29 able to leave state waters as soon as it may do so without imminent risk of harm to 30 the crew, public safety, or the environment. 31 (f) In place of the requirements of (a)(1), (b)(1), and (c)(1) of this section, the 01 department may adopt regulations by negotiated regulation making under AS 44.62.710 02 - 44.62.800 to provide for alternative means to obtain equivalent levels of spill 03 prevention and response, including fleet plans, use of vessel agents, generic 04 contingency plan contents established by regulation, and streamlined contingency plans 05 with membership in a nonprofit corporation that is a primary response action 06 contractor. 07 (g) A nontank vessel that is conducting, or is available only for conducting, 08 oil discharge response operations is exempt from the requirements of (a) of this section 09 if the nontank vessel has received prior approval of the department. The department 10 may approve exemptions under this subsection upon application and presentation of 11 information required by the department. 12 (h) When considering whether to approve or modify an oil discharge 13 prevention and contingency plan, the department, consistent with the requirements of 14 regulations adopted to implement this section, may modify the requirements of the 15 standards set out in (c)(1) and (c)(2) of this section or of the general standards adopted 16 under (f) of this section to provide for alternative means to obtain equivalent levels of 17 spill prevention and response to reflect the reduced risk of oil discharges based on 18 evidence of implementation of systems or staffing levels that reduce the potential size 19 or risk of a discharge. 20 * Sec. 4. AS 46.04.060 is amended to read: 21 Sec. 46.04.060. Inspections. (a) In addition to other rights of access or 22 inspection conferred upon the department by law or otherwise, the department may at 23 reasonable times and in a safe manner enter and inspect oil terminal facilities, 24 pipelines, exploration and production facilities, tank vessels, nontank vessels, trains, 25 and oil barges in order to 26 (1) ensure compliance with the provisions of this chapter; or 27 (2) participate in an examination of the structural integrity and the 28 operating and mechanical systems of those vessels, barges, trains, pipelines, and 29 facilities by federal and state agencies with jurisdiction. 30 (b) When the department determines that no federal or state agencies with 31 jurisdiction are performing timely and adequate inspections of an oil terminal facility, 01 pipeline, exploration or production facility, tank vessel, nontank vessel, train, or oil 02 barge, it may perform its own inspection of the structural integrity and operating and 03 mechanical systems of a facility, pipeline, tank vessel, nontank vessel, train, or oil 04 barge by using personnel with qualifications in the areas being inspected. 05 * Sec. 5. AS 46.04.060 is amended by adding a new subsection to read: 06 (c) For purposes of this section, "train" includes tracks, associated facilities, 07 and operations. 08 * Sec. 6. AS 46.04.900(12) is amended to read: 09 (12) "oil terminal facility" means an onshore or offshore facility of any 10 kind, and related appurtenances, including but not limited to a deepwater port, bulk 11 storage facility , or marina, located in, on, or under the surface of the land or waters 12 of the state, including tide and submerged land, that [WHICH] is used for the purpose 13 of transferring, processing, refining, or storing oil; a vessel , other than a nontank 14 vessel, is considered an oil terminal facility only when it is used to make a ship-to-ship 15 transfer of oil, and when it is traveling between the place of the ship-to-ship transfer 16 of oil and an oil terminal facility; 17 * Sec. 7. AS 46.04.900(21) is amended to read: 18 (21) "vessel" includes tank vessels , [AND] oil barges , and nontank 19 vessels ; 20 * Sec. 8. AS 46.04.900 is amended to add new paragraphs to read: 21 (24) "nonpersistent product" has the meaning given to "non-persistent 22 or Group I oil" in 33 C.F.R. 155.1020; 23 (25) "nontank vessel" means a self-propelled watercraft of 400 gross 24 registered tons or greater; in this paragraph, "watercraft" includes commercial fishing 25 vessels, commercial fish processor vessels, passenger vessels, and cargo vessels, but 26 does not include a tank vessel, oil barge, or public vessel; 27 (26) "persistent product" has the meaning given to "persistent oil" in 28 33 C.F.R. 155.1020; 29 (27) "public vessel" means a vessel that is operated by and is either 30 owned or bareboat chartered by the United States, a state or a political subdivision of 31 that state, or a foreign nation, except when the vessel is engaged in commerce; 01 (28) "railroad tank car" means rolling stock used to transport oil in bulk 02 as cargo by rail; 03 (29) "train" means connected rolling stock operated as a single moving 04 vehicle on rails; for purposes of this paragraph, "connected rolling stock" includes 05 railroad tank cars. 06 * Sec. 9. The uncodified law of the State of Alaska is amended by adding a new section 07 to read: 08 TRANSITIONAL PROVISIONS: REGULATIONS. (a) The Department of 09 Environmental Conservation shall proceed to adopt regulations necessary to implement the 10 changes made by this Act. No later than March 1, 2001, the commissioner of environmental 11 conservation shall propose the regulations in a form that, with public notice, provides 12 opportunity for public comment. The regulations take effect under AS 44.62 (Administrative 13 Procedure Act), but not before the effective date of secs. 1 - 8 of this Act. 14 (b) If, under AS 46.04.055(f), added by sec. 3 of this Act, and under (a) of this 15 section, the Department of Environmental Conservation engages in the adoption of regulations 16 by negotiated regulation making under AS 44.62.710 - 44.62.800, the commissioner of 17 environmental conservation may adopt regulations to obtain equivalent levels of spill 18 prevention and response to reflect the reduced risk of oil discharges based on evidence of 19 implementation of systems or staffing levels that reduce the potential size or risk of a 20 discharge. 21 (c) If, under AS 46.04.055(f), added by sec. 3 of this Act, and under (a) of this 22 section, the Department of Environmental Conservation adopts regulations by negotiated 23 regulation making under AS 44.62.710 - 44.62.800, or if, notwithstanding the authority 24 provided in AS 46.04.055(f), the Department of Environmental Conservation, using negotiated 25 regulation making under AS 44.62.710 - 44.62.800, adopts regulations to implement or make 26 specific the requirements of the provisions added or amended by this Act, the Department of 27 Environmental Conservation shall provide to the members of the legislature, if in session, or 28 to the legislative council if the legislature is not in session, a comprehensive report 29 summarizing the activities undertaken to adopt the regulations using the negotiated regulation 30 making process authorized by AS 44.62.710 - 44.62.800. 31 * Sec. 10. Section 9 of this Act takes effect immediately under AS 01.10.070(c). 01 * Sec. 11. Except as provided in sec. 10 of this Act, this Act takes effect September 1, 02 2000.