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(continued)
(16) “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).
(17) “Offshore facility” means any facility located in, on or under any of the navigable waters of the state.
(18) “Oils” or “oil” means oil, including gasoline, crude oil, fuel oil, diesel oil, lubricating oil, sludge, oil refuse and any other petroleum related product.
(19) “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.
(20) “Passenger vessel” means a ship of 300 or more gross tons carrying passengers for compensation.
(21) “Person” has the meaning given the term in ORS 468.005.
(22) “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.
(23) “Pipeline” means a facility, including piping, compressors, pump stations and storage tanks, used to transport oil between facilities or between facilities and tank vessels.
(24) “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.
(25) “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.
(26) “Responsible party” has the meaning given under section 1001 of the Oil Pollution Act of 1990 (P.L. 101-380).
(27) “Ship” means any boat, ship, vessel, barge or other floating craft of any kind.
(28)(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.
(29) “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.
(30) “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. [Formerly 468.780; 2001 c.688 §1; 2003 c.738 §1]
468B.305 Entry of oil into waters of state prohibited; exceptions. (1) It shall be unlawful for oil to enter the waters of the state from any ship or any fixed or mobile facility or installation located offshore or onshore, whether publicly or privately operated, regardless of the cause of the entry or the fault of the person having control over the oil, or regardless of whether the entry is the result of intentional or negligent conduct, accident or other cause. Such entry constitutes pollution of the waters of the state.
(2) Subsection (1) of this section shall not apply to the entry of oil into the waters of the state under the following circumstances:
(a) The person discharging the oil was expressly authorized to do so by the Department of Environmental Quality, having obtained a permit therefor required by ORS 468B.050;
(b) Notwithstanding any other provision of ORS 466.640, 468B.025, 468B.050 or this section, the person discharging the oil was expressly authorized to do so by a federal on-scene coordinator or the department in connection with activities related to the removal of or response to oil that entered the waters of the state; or
(c) The person having control over the oil can prove that the entry thereof into the waters of the state was caused by:
(A) An act of war or sabotage or an act of God.
(B) Negligence on the part of the United States Government, or the State of Oregon.
(C) An act or omission of a third party without regard to whether any such act or omission was or was not negligent. [Formerly 449.157 and then 468.785; 1995 c.535 §1]
468B.310 Liability for violation of ORS 468B.305. (1) Any person owning oil or having control over oil which enters the waters of the state in violation of ORS 468B.305 shall be strictly liable, without regard to fault, for the damages to persons or property, public or private, caused by such entry. However, in any action to recover damages, the person shall be relieved from strict liability without regard to fault if the person can prove that the oil to which the damages relate, entered the waters of the state by causes set forth in ORS 468B.305 (2).
(2) Nothing in this section shall be construed as limiting the right of a person owning or having control of oil to maintain an action for the recovery of damages against another person for an act or omission of such other person resulting in the entry of oil into the waters of the state for which the person owning or having control of such oil is liable under subsection (1) of this section. [Formerly 449.159 and then 468.790]
468B.315 Duty to collect and remove oil; dispersal of oil. (1) In addition to any other liability or penalty imposed by law, it shall be the obligation of any person owning or having control over oil which enters the waters of the state in violation of ORS 468B.305 to collect and remove the oil immediately.
(2) If it is not feasible to collect and remove the oil, the person shall take all practicable actions to contain, treat and disperse the oil.
(3) The Director of the Department of Environmental Quality shall prohibit or restrict the use of any chemicals or other dispersant or treatment materials proposed for use under this section whenever it appears to the director that use thereof would be detrimental to the public interest. [Formerly 449.161 and then 468.795]
468B.320 Action by state; liability for state expense; order; appeal. (1) If any person fails to collect, remove, treat, contain or disperse oil immediately when under the obligation imposed by ORS 468B.315, the Department of Environmental Quality is authorized, itself or by contract with outside parties, to take such actions as are necessary to collect, remove, treat, contain or disperse oil which enters into the waters of the state.
(2) The Director of the Department of Environmental Quality shall keep a record of all necessary expenses incurred in carrying out any action authorized under this section, including a reasonable charge for costs incurred by the state, including state’s equipment and materials utilized.
(3) The authority granted under this section shall be limited to actions which are designed to protect the public interest or public property.
(4) Any person who fails to collect, remove, treat, contain or disperse oil immediately when under the obligation imposed by ORS 468B.315, shall be responsible for the necessary expenses incurred by the state in carrying out actions authorized by this section.
(5) Based on the record compiled by the director pursuant to subsection (2) of this section, the Environmental Quality Commission shall make a finding and enter an order against the person described in subsection (4) of this section for the necessary expenses incurred by the state in carrying out the action authorized by this section. The order may be appealed pursuant to ORS chapter 183 but not as a contested case. [Formerly 449.163 and then 468.800]
468B.325 Director’s right of entry in response to oil spill; state liability for damages. (1) The Director of the Department of Environmental Quality shall have the power to enter upon any public or private property, premises or place for the purpose of controlling, collecting, removing, treating, containing or dispersing oil which reasonably appears to the director to threaten imminent and unlawful entry into the waters of the state, when the person responsible for an oil spill or an owner of property on which oil has been spilled fails to act to restrain or to remove the oil.
(2) Damages, other than those caused by the oil spill, suffered from the actions of the director pursuant to subsection (1) of this section shall be the responsibility of the state. [Formerly 468.802]
468B.330 Action to collect costs. (1) If the amount of state-incurred expenses under ORS 468B.320 is not paid by the responsible person to the Environmental Quality Commission at the time provided in subsection (2) of this section, the Attorney General, upon the request of the Director of the Department of Environmental Quality, shall bring action in the name of the State of Oregon in the Circuit Court of Marion County or the circuit court of any other county in which the violation may have taken place to recover the amount specified in the order of the commission.
(2) Payment must be made within 15 days after the end of the appeal period or, if an appeal is filed, within 15 days after the court renders its decision if the decision affirms the order. [Formerly 449.165 and then 468.805]
468B.335 Effect of federal regulations of oil spillage. Nothing in ORS 468.020, 468.095, 468.140 (3) and 468B.300 to 468B.500 or the rules adopted thereunder shall require or prohibit any act if such requirement or prohibition is in conflict with any applicable federal law or regulation. [Formerly 449.175 and then 468.815]
(Contingency Planning)
468B.340 Legislative findings and intent. (1) The Legislative Assembly finds that:
(a) Oil spills present a serious danger to the fragile natural environment of the state.
(b) Commercial vessel activity on the navigable waters of the state is vital to the economic interests of the people of the state.
(c) Recent studies conducted in the wake of disastrous oil spills have identified the following problems in the transport and storage of oil:
(A) Gaps in regulatory oversight;
(B) Incomplete cost recovery by states;
(C) Despite research in spill cleanup technology, it is unlikely that a large percentage of oil can be recovered from a catastrophic spill;
(D) Because response efforts cannot effectively reduce the impact of oil spills, prevention is the most effective approach to oil spill management; and
(E) Comprehensive oil spill prevention demands participation by industry, citizens, environmental organizations and local, state, federal and international governments.
(2) Therefore, the Legislative Assembly declares it is the intent of ORS 468B.345 to 468B.415 to establish a program to promote:
(a) The prevention of oil spills especially on the large, navigable waters of the Columbia River, the Willamette River and the Oregon coast;
(b) Oil spill response preparedness, including the identification of actions and content required for an effective contingency plan;
(c) A consistent west coast approach to oil spill prevention and response;
(d) The establishment, coordination and duties of safety committees as provided in ORS 468B.415; and
(e) To the maximum extent possible, coordination of state programs with the programs and regulations of the United States Coast Guard and adjacent states. [1991 c.651 §2]
468B.345 Oil spill contingency plan required to operate facility or covered vessel in state or state waters; exceptions. (1) Unless an oil spill prevention and emergency response plan has been approved by the Department of Environmental Quality and has been properly implemented, no person shall:
(a) Cause or permit the operation of an onshore facility in the state;
(b) Cause or permit the operation of an offshore facility in the state; or
(c) Cause or permit the operation of a covered vessel within the navigable waters of the state.
(2) It is not a defense to an action brought for a violation of subsection (1) of this section that the person charged believed that a current contingency plan had been approved by the department.
(3) A contingency plan shall be renewed at least once every five years.
(4) This section shall not apply to the operation of a cargo or passenger vessel on Yaquina Bay or on the navigable waters of the state in the Pacific Ocean used by cargo or passenger vessels entering or leaving Yaquina Bay until January 1, 1998. [1991 c.651 §4; 1995 c.535 §2]
468B.350 Rules; standards for contingency plans; oil spill response zones. (1) The Environmental Quality Commission shall adopt 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, 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 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. [1991 c.651 §5; 2001 c.688 §2]
468B.355 Submission of contingency plan; participation in maritime association; lien; liability of maritime association; exemption from liability while providing contingency planning service. (1) A contingency plan for a facility or covered vessel shall be submitted to the Department of Environmental Quality within 12 months after the Environmental Quality Commission adopts rules under ORS 468B.350. The department may adopt a schedule for submission of an oil contingency plan within the 12-month period. The schedule for the Columbia River shall be coordinated with the State of Washington. The department may adopt an alternative schedule for the Oregon coast and the Willamette River.
(2) The contingency plan for a facility shall be submitted by the owner or operator of the facility or by a qualified oil spill response cooperative in which the facility owner or operator is a participating member.
(3) The contingency plan for a tank vessel shall be submitted by:
(a) The owner or operator of the tank vessel;
(b) The owner or operator of the facility at which the vessel will be loading or unloading its cargo; or
(c) A qualified oil spill response cooperative in which the tank vessel owner or operator is a participating member.
(4) Subject to conditions imposed by the department, the contingency plan for a tank vessel, if submitted by the owner or operator of a facility, may be submitted as a single plan for all tank vessels of a particular class that will be loading or unloading cargo at the facility.
(5) The contingency plan for a cargo vessel or passenger vessel may be submitted by the owner or operator of the vessel, or the agent for the vessel resident in this state. Subject to conditions imposed by the department, the owner, operator, agent or a maritime association may submit a single contingency plan for cargo vessels or passenger vessels of a particular class.
(6) A person that has contracted with a facility or covered vessel to provide containment and cleanup services and that meets the standards established by the commission under ORS 468B.350 may submit the contingency plan for any facility or covered vessel for which the person is contractually obligated to provide services. Subject to conditions imposed by the department, the person may submit a single plan for more than one covered vessel.
(7) The requirements of submitting a contingency plan under this section may be satisfied by a covered vessel by submission of proof of assessment participation by the vessel in a maritime association. Subject to conditions imposed by the department, the association may submit a single plan for more than one facility or covered vessel or may submit a single plan providing contingencies to respond for different classes of covered vessels.
(8) A contingency plan prepared for an agency of the federal government or an adjacent state that satisfies the requirements of ORS 468B.345 to 468B.360 and the rules adopted by the Environmental Quality Commission may be accepted as a plan under ORS 468B.345. The commission shall assure that to the greatest extent possible, requirements for a contingency plan under ORS 468B.345 to 468B.360 are consistent with requirements for a plan under federal law.
(9) Covered vessels may satisfy the requirements of submitting a contingency plan under this section through proof of current assessment participation in an approved plan maintained with the department by a maritime association.
(10) A maritime association may submit a contingency plan for a cooperative group of covered vessels. Covered vessels that have not previously obtained approval of a plan may enter the navigable waters of the state if, upon entering such waters, the vessel pays the established assessment for participation in the approved plan maintained by the association.
(11) A maritime association shall have a lien on the responsible vessel if the vessel owner or operator fails to remit any regular operating assessments and shall further have a lien for the recovery for any direct costs provided to or for the vessel by the maritime association for oil spill response or spill related communications services. The lien shall be enforced in accordance with applicable law.
(12) Obligations incurred by a maritime association and any other liabilities or claims against the association shall be enforced only against the assets of the association, and no liability for the debts or action of the association exists against either the State of Oregon or any other subdivision or instrumentality thereof, or against any member, officer, employee or agent of the association in an individual or representative capacity.
(13) Except as otherwise provided in ORS chapters 468, 468A and 468B, neither the members of the association, its officers, agents or employees, nor the business entities by whom the members are regularly employed, may be held individually responsible for errors in judgment, mistakes or other acts, either of commission or omission, as principal, agent, person or employee, save for their own individual acts of dishonesty or crime.
(14) Assessment participation in a maritime association does not constitute a defense to liability imposed under ORS 468B.345 to 468B.415 or other state or federal law. Such assessment participation shall not relieve a covered vessel from complying with those portions of the approved maritime association contingency plan that may require vessel specific oil spill response equipment, training or capabilities for that vessel.
(15) A person providing a contingency plan for a cargo or passenger vessel under this section shall be exempt from liability as provided under ORS 468B.425 for any action taken or omitted in the course of providing contingency planning service. [1991 c.651 §6; 1995 c.535 §3]
468B.360 Review of contingency plan. In reviewing the contingency plan required by ORS 468B.345, the Department of Environmental Quality shall consider at least the following factors:
(1) The adequacy of containment and cleanup equipment, personnel, communications equipment, notification procedures and call-down lists, response time and logistical arrangements for coordination and implementation of response efforts to remove oil spills promptly and properly and to protect the environment;
(2) The nature and amount of vessel traffic within the area covered by the plan;
(3) The volume and type of oil being transported within the area covered by the plan;
(4) The existence of navigational hazards within the area covered by the plan;
(5) The history and circumstances surrounding prior spills of oil within the area covered by the plan;
(6) The sensitivity of fisheries and wildlife and other natural resources within the area covered by the plan;
(7) Relevant information on previous spills contained in on-scene coordinator reports covered by the plan;
(8) The extent to which reasonable, cost-effective measures to reduce the likelihood that a spill will occur have been incorporated into the plan;
(9) The number of covered vessels calling in and the facilities located in the geographic area and the resulting ability of local agencies and industry groups to develop, finance and maintain a contingency plan and spill response system for those vessels and facilities; and
(10) The spill response equipment and resources available to a person providing a contingency plan for cargo and passenger vessels under contingency plans filed by the person under state or federal law for other covered vessels or facilities owned or operated by that person. [1991 c.651 §7; 1995 c.535 §4]
468B.365 Plan approval; change affecting plan; certificate of approval. (1) The Department of Environmental Quality shall approve a contingency plan only if it determines that the plan meets the requirements of ORS 468B.345 to 468B.360 and:
(a) The covered vessel or facility demonstrates evidence of compliance with ORS 468B.390; and
(b) If implemented, the plan is capable, to the maximum extent practicable in terms of personnel, materials and equipment, of removing oil promptly and properly and minimizing any damage to the environment.
(2) An owner or operator of a covered vessel or facility shall notify the department in writing immediately of any significant change affecting the contingency plan, including changes in any factor set forth in this section or in rules adopted by the Environmental Quality Commission. The department may require the owner or operator to update a contingency plan as a result of these changes.
(3) A holder of an approved contingency plan does not violate the terms of the contingency plan by furnishing to another plan holder, after notifying the department, equipment, materials or personnel to assist the other plan holder in a response to an oil discharge. The plan holder shall replace or return the transferred equipment, materials and personnel as soon as feasible.
(4) The department may attach any reasonable term or condition to its approval or modification of a contingency plan that the department determines is necessary to insure that the applicant:
(a) Has access to sufficient resources to protect environmentally sensitive areas and to prevent, contain, clean up and mitigate potential oil discharges from the facility or tank vessel;
(b) Maintains personnel levels sufficient to carry out emergency operations; and
(c) Complies with the contingency plan.
(5) The contingency plan must provide for the use by the applicant of the best technology available at the time the contingency plan was submitted or renewed.
(6) The department may require an applicant or a holder of an approved contingency plan to take steps necessary to demonstrate its ability to carry out the contingency plan, including:
(a) Periodic training;
(b) Response team exercises; and
(c) Verification of access to inventories of equipment, supplies and personnel identified as available in the approved contingency plan.
(7) The department may consider evidence that oil discharge prevention measures such as double hulls or double bottoms on vessels or barges, secondary containment systems, hydrostatic testing, enhanced vessel traffic systems or enhanced crew or staffing levels have been implemented and in its discretion, may make exceptions to the requirements of this section to reflect the reduced risk of oil discharges from the facility or tank vessel for which the plan is submitted or being modified.
(8) Before the department approves or modifies a contingency plan required under ORS 468B.345, the department shall provide a copy of the contingency plan to the State Department of Fish and Wildlife, the office of the State Fire Marshal and the Department of Land Conservation and Development for review. The agencies shall review the plan according to procedures and time limits established by rule of the Environmental Quality Commission.
(9) Upon approval of a contingency plan, the department shall issue to the plan holder a certificate stating that the plan has been approved. The certificate shall include the name of the facility or tank vessel for which the certificate is issued, the effective date of the plan and the date by which the plan must be submitted for renewal.
(10) The approval of a contingency plan by the department does not constitute an express assurance regarding the adequacy of the plan or constitute a defense to liability imposed under ORS chapters 468, 468A and 468B or any other state law. [1991 c.651 §8]
468B.370 Determination of adequacy of plan; practice drills; rules. (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. [1991 c.651 §9; 2001 c.688 §3]
468B.375 Inspection of facilities and vessels; coordination with State of Washington. (1) In addition to any other right of access or inspection conferred upon the Department of Environmental Quality by ORS 468B.370, the department may at reasonable times and in a safe manner enter and inspect facilities and tank vessels in order to insure compliance with the provisions of ORS 468B.345 to 468B.415.
(2) The department shall coordinate with the State of Washington in the review of the tank vessel structural integrity inspection programs conducted by the United States Coast Guard and other federal agencies to determine whether the programs as actually operated by the federal agencies adequately protect the navigable waters of the state. If the department determines that tank vessel inspection programs conducted by the federal agencies are not adequate to protect the navigable waters of the state, the department shall establish a state tank vessel inspection program. [1991 c.651 §10]
468B.380 Tank vessel inspection program; rules. If the Department of Environmental Quality determines under ORS 468B.375 that a state tank vessel inspection program is necessary, the Environmental Quality Commission shall adopt rules necessary to enable the department to implement the state tank vessel inspection program. [1991 c.651 §11]
468B.385 Modification of approval of contingency plan; revocation of approval; violation. (1) Upon request of a plan holder or on the initiative of the Department of Environmental Quality, the department, after notice and opportunity for hearing, may modify its approval of a contingency plan if the department determines that a change has occurred in the operation of the facility or tank vessel necessitating an amended or supplemental plan, or that the operator’s discharge experience demonstrates a necessity for modification.
(2) The department, after notice and opportunity for hearing, may revoke its approval of a contingency plan if the department determines that:
(a) Approval was obtained by fraud or misrepresentation;
(b) The operator does not have access to the quality or quantity of resources identified in the plan;
(c) A term or condition of approval or modification has been violated; or
(d) The plan holder is not in compliance with the plan and the deficiency materially affects the plan holder’s response capability.
(3) Failure of a holder of an approved or modified contingency plan to comply with the plan or to have access to the quality or quantity of resources identified in the plan or to respond with those resources within the shortest possible time in the event of a spill is a violation of ORS 468B.345 to 468B.415 for purposes of ORS 466.992, 468.140, 468.943 and any other applicable law.
(4) If the holder of an approved or modified contingency plan fails to respond to and conduct cleanup operations of an unpermitted discharge of oil with the quality and quantity of resources identified in the plan and in a manner required under the plan, the holder is strictly liable, jointly and severally, for the civil penalty assessed under ORS 466.992 and 468.140.
(5) In order to be considered in compliance with a contingency plan, the plan holder must:
(a) Establish and carry out procedures identified in the plan as being the responsibility of the holder of the plan;
(b) Have access to and have on hand the quantity and quality of equipment, personnel and other resources identified as being accessible or on hand in the plan;
(c) Fulfill the assurances espoused in the plan in the manner described in the plan;
(d) Comply with terms and conditions attached to the plan by the department under ORS 468B.345 to 468B.380; and
(e) Successfully demonstrate the ability to carry out the plan when required by the department under ORS 468B.370. [1991 c.651 §12; 1993 c.422 §34]
468B.390 Compliance with federal Oil Pollution Act of 1990; proof of financial responsibility. (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) 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. [1991 c.651 §13; 2001 c.688 §4]
468B.395 Department duties. 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) Adoption of an incident command system to enhance the department’s ability to manage responses to a major oil 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 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 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. [1991 c.651 §14; 2001 c.688 §5]
468B.400 Wildlife rescue training program. The State Department of Fish and Wildlife shall develop and implement a program to provide wildlife rescue training for volunteers. In developing the program, the State Department of Fish and Wildlife shall:
(1) Work with agencies responsible for wildlife protection in other west coast states;
(2) Rely upon the oil wildlife rehabilitation plan developed under ORS 468B.495; and
(3) Take such action as is required for reimbursement in accordance with the provisions of the federal Oil Pollution Act of 1990 (P.L. 101-380). [1991 c.651 §15]
468B.405 Fees; disposition. (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 on all:
(a) Cargo and passenger vessels, $48 per trip.
(b) Nonself-propelled tank vessels, $42 per trip.
(c) Self-propelled tank vessels of 300 gross tons or less, $42 per trip.
(d) Self-propelled tank vessels over 300 gross tons, $836 per trip.
(e) Offshore and onshore facilities, $4,500 per year.
(f) Dredge vessels, $24 per day when operating in the navigable waters of the state.
(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. [1991 c.651 §17; 2001 c.688 §6; 2003 c.738 §2]
468B.410 Oil Spill Prevention Fund; uses. (1) The Oil Spill Prevention Fund is established separate and distinct from the General Fund in the State Treasury. Interest earned on the fund shall be credited to the fund. Moneys received by the Department of Environmental Quality for the purpose of oil and hazardous material spill prevention and the fees collected under ORS 468B.405 shall be paid into the State Treasury and credited to the fund.
(2) The State Treasurer shall invest and reinvest moneys in the Oil Spill Prevention Fund in the manner prescribed by law.
(3) The moneys in the Oil Spill Prevention Fund are appropriated continuously to the Department of Environmental Quality to be used in the manner described in subsection (4) of this section.
(4) The Oil Spill Prevention Fund may be used by the Department of Environmental Quality to:
(a) Pay all costs of the department incurred to:
(A) Review the contingency plans submitted under ORS 468B.360;
(B) Conduct training, response exercises, inspection and tests in order to verify equipment inventories and ability to prevent and respond to oil release emergencies and to undertake other activities intended to verify or establish the preparedness of the state, a municipality or a party required by ORS 468B.345 to 468B.415 to have an approved contingency plan to act in accordance with that plan; and
(C) Verify or establish proof of financial responsibility required by ORS 468B.390.
(b) Review and revise the oil spill response plan required by ORS 468B.495 and 468B.500. [1991 c.651 §18]
468B.415 Oregon coast safety committee; subcommittees. (1) There is established a safety committee for the Oregon coast. A subcommittee shall be appointed for Coos Bay and Yaquina Bay. In addition, the Department of Environmental Quality also shall consult with the State of Washington to establish a joint regional safety committee for the Columbia River and may appoint a subcommittee for the Willamette River. The safety committee shall operate under the direction of the Economic and Community Development Department pursuant to ORS 285A.615.
(2) Each committee shall consist of not more than 11 members, appointed by the Director of the Economic and Community Development Department in consultation with the Director of the Department of Environmental Quality. At a minimum, the following groups should be considered for representation on the committees:
(a) Local port authorities;
(b) Tank vessel operators;
(c) Tug and barge operators;
(d) Pilots’ organizations;
(e) Cargo vessel operators;
(f) Commercial fishermen;
(g) Pleasure boat operators;
(h) Environmental organizations;
(i) Local planning authorities; and
(j) The public at large.
(3) The members shall be appointed to the safety committee for a term of four years. The Director of the Economic and Community Development Department in consultation with the Director of the Department of Environmental Quality shall appoint the chairperson of each committee to serve a term of four years.
(4) A majority of the members shall constitute a quorum for the transaction of business.
(5) The duties of the safety committees shall include but are not limited to:
(a) Planning for safe navigation and operation of covered vessels within each harbor;
(b) Developing safety plans;
(c) Reviewing and making recommendations to the Oregon Board of Maritime Pilots, ports and the United States Coast Guard on the following:
(A) Pilotage requirements for all single boiler or single engine and single screw tank vessels carrying oil in pilotage grounds;
(B) Reducing deadweight tonnage specifications for pilotage service for vessels carrying oil;
(C) Guidelines for tugs on tank vessels for tow cable size and material specifications, cable maintenance practices, cable handling equipment design and barge recovery plan preparation;
(D) Establishing regional speed limits, based on escort vehicle limitations, for all tank vessels in inland navigable waters and critical approaches to inland navigable waters;
(E) Requiring towing systems and plans on all tank vessels carrying oil; and
(F) The feasibility of establishing a pilot program for a near-miss reporting system that is coordinated with vessel inspection information compiled as a result of inspections under ORS 468B.370 and 468B.375.
(6) Members of the safety committees established under this section are entitled to compensation and expenses as provided in ORS 292.495.
(7) The Department of Environmental Quality shall serve in an advisory capacity to the safety committees and review the safety plans. In addition, the United States Coast Guard shall be invited to also act in an advisory capacity to the safety committees and may participate in the review of safety plans. [1991 c.651 §19; 1993 c.736 §56]
468B.420 Safety committee recommendations. If a safety committee established under ORS 468B.415 determines that the United States Coast Guard has not acted on the recommendations submitted under ORS 468B.415 (5)(c)(C) and (E) in a timely and adequate manner, the committee may recommend to the port that the port adopt rules to implement the committee’s recommendations under ORS 468B.415 (5)(c)(C) and (E). [1991 c.651 §19a]
468B.425 Exemption from liability for removal costsor damages. (1) Notwithstanding any other provision of law, a person is not liable for removal costs or damages that result from action taken or omitted in the course of rendering care, assistance or advice consistent with the National Contingency Plan or as otherwise directed by the federal on-scene coordinator or by a state official responsible for oil spill response. (continued)