BILL ANALYSIS Ó SENATE COMMITTEE ON NATURAL RESOURCES AND WATER Senator Fran Pavley, Chair 2015 - 2016 Regular Bill No: SB 1083 Hearing Date: March 29, 2016 ----------------------------------------------------------------- |Author: |Allen | | | ----------------------------------------------------------------- ----------------------------------------------------------------- |Version: |February 17, 2016 | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|Katharine Moore | | | | ----------------------------------------------------------------- Subject: California oil spill contingency plan BACKGROUND AND EXISTING LAW In response to the significant 1989 oil spill from the Exxon Valdez that fouled the waters of Prince William Sound, a series of federal laws were established or amended including the Oil Pollution Act of 1990, the Clean Water Act and others. These laws established a national framework for addressing oil (and other hazardous waste) spills within the United States and its waters. Federal regulations implementing these laws include those for the National Oil and Hazardous Substances Pollution Contingency Plan (national contingency plan, see Title 40, Code of Federal Regulations, Part 300 (40 CFR §300)). The national contingency plan established a structured planning and response framework for oil spills including the establishment of regional and area contingency plans. The regional contingency plan for California includes neighboring states. Within California, designated locations for area contingency planning include the ports of Los Angeles/Long Beach and the nearby vicinity. The area contingency planning process is open to all stakeholders and includes agencies from all levels of government, industry and environmental groups. The national contingency plan establishes that the basic framework for the response management structure is a system that brings together the functions of the federal government, the SB 1083 (Allen) Page 2 of ? state (and local) government, and the responsible party to achieve "an effective and efficient response, where the on-scene coordinator maintains authority." (see 40 CFR §300.105 and 40 CFR §300.135). This is the "unified command" and no single agency has sole jurisdictional authority to direct all aspects of a major emergency. For large oil spills, the unified command includes a federal on-scene coordinator (the US Coast Guard for marine spills), a state on-scene coordinator (identified below) and the responsible party (for the spill). If federal assistance is not required, incident command may be composed of members from state and local government and the responsible party. The on-scene coordinator in charge, generally the federal coordinator, retains ultimate authority for decisions related to oil spill response. In the event of an oil spill, the on-scene coordinator is directed to collect pertinent facts about the release, the nature, amount and location of the amount released and other relevant factors (see 40 CFR §300.135). The on-scene coordinator is also required to ensure that all appropriate public and private interests are kept informed and that their concerns are considered throughout a response, to the extent practicable, as specified (see 40 CFR §300.135, 40 CFR §300.155, among others). Incidents may have their own incident-specific team and who is in charge and the number of personnel involved will vary depending upon the circumstances. With limited exception, responsible parties can hold many jobs within incident command. At the state level, the Lempert-Keene-Seastrand Oil Spill Prevention and Response Act (act) established the Office of Oil Spill Prevention and Response (OSPR) in the California Department of Fish and Wildlife. This act helps to fulfill the state's responsibilities for oil spill prevention and response as established at the federal level. Existing law generally requires the OSPR administrator to implement activities relating to oil spill response and to represent the state in any coordinated response efforts with the federal government. Federal and state law and regulations also require that vessels, pipelines and other potential responsible parties have oil spill SB 1083 (Allen) Page 3 of ? contingency plans in place specific to their operations (see, for example, 33 CFR §155.1035). Oil spill contingency plans generally all recognize the necessity of providing information to the public. National, regional, area and state contingency plans include provisions for public information officers as part of the unified command structure and provide, as needed, for the establishment of a joint information center to facilitate communications with the media and the public. On May 19, 2015 a pipeline owned by Plains All American Pipeline (Line 901) ruptured spilling a then-reported 101,000 gallons of heavy crude oil along the Gaviota coast in Santa Barbara County. An estimated 21,000 gallons of oil from the pipe ended up in the water at Refugio Beach. Oil from the spill ended up dispersing along the coast of Southern California. Approximately one week after the initial spill, tar balls started washing up on Manhattan Beach, more than 100 miles south. An eight-mile stretch from El Segundo to Torrance Bean was closed. The composition of these tar balls matched the oil from the Refugio Beach spill. PROPOSED LAW This bill would require a communications element to be developed by the administrator and included in the California oil spill contingency plan. Specifically, the bill would: 1)Require the communications element provide the framework for efficient and timely communications with the unified command across all levels of government and with the public, as specified. The communications element would be required to: a) Establish a process for developing and maintaining a database of local public information officers in each coastal county b) Establish a process to ensure timely and accurate information is provided to news and social media providing that personnel from the responsible party for the spill shall not serve as a unified command information officer or joint information center manager, as specified, or be involved in the drafting or approval of news releases or other materials developed for public communication. c) Establish a mechanism to ensure critical information is SB 1083 (Allen) Page 4 of ? shared from the local level to the unified command, as specified, and d) Establish a process for early community outreach in spill affected areas that ensures the public has up-to-date and timely information on the spill including information on the responsible party and the right of affected parties to file claims against the responsible party. ARGUMENTS IN SUPPORT According to the author, "SB 1083 will strengthen oil spill contingency planning by requiring the Office of Spill Prevention and Response to add a communications element to the State's Oil Spill Contingency plan in an effort to ensure local communities have more timely and accurate information in the wake of an oil spill." The author notes that OSPR responded promptly when tar balls hit Manhattan Beach, but notes that "the South Bay communities impacted by the tar balls lacked critical information to ensure their impacts were addressed in a timely fashion." "When local residents obtained modelling data showing oil from the leak would likely land on South Bay beaches, the lacked a means to effectively communicate with state responders before the tar balls landed. Community leaders also struggled to ensure volunteers had the necessary information to ensure they could safely assist in the cleanup. Local business leaders who were economically impacted by the spill were not even made aware that the tar balls were a result of the spill and they could file a claim for damages." ARGUMENTS IN OPPOSITION In a joint sign-on letter in opposition, the Western State Petroleum Association writes that SB 1083 "conflict[s] with federal and state laws by prohibiting personnel from a responsible party from participating in various activities required of the unified command in the event of an oil spill." They continue, "the bill would compromise federal and state laws that are designed to ensure a coordinated response between the responsible parties and the appropriate agencies. Companies that transport oil and petroleum products prepare risk management and spill prevention and response plans for a specific reason - to minimize potential risks and to prepare for SB 1083 (Allen) Page 5 of ? a spill if one occurs. If an operator becomes a responsible party, it's important that they work closely with federal, state and local entities to effectively carry out the response plan in a timely and coordinated fashion." COMMENTS Double-referral . This bill is double-referred to both this Committee and the Senate Environmental Quality Committee (Senate EQ). Information presented here within Senate EQ's jurisdiction is for context and completeness only. The responsible party cannot be barred from participating in incident public communications . Federal regulations implementing the contingency planning process and the unified command clearly include the responsible party as an active participant, when identified, in oil spill response efforts. The California oil spill contingency plan indicates that this can be a sensitive issue, however, and it states that "[t]he regional response team IX prefers that in the case of oil spills, the responsible party not fill the lead information officer position, regardless of whether the spiller is private industry or another government agency. However, the [unified command] holds the discretion to fill the position with whomever they choose." A federal on-scene coordinator's authority cannot be trumped by state law. Additionally at the start of a spill, the responsible party may be the only source of readily-available information critical to spill response. In some instances, the responsible party may also be represented by a contractor. Given these limitations, the Committee may wish to amend the bill to remove the sections contrary to existing federal regulation with respect to the responsible parties while still incorporating the author's intent to improve public communications in the event of an oil spill. [Amendment 1] Public communication strategies are addressed to some degree in existing contingency plans . Similar elements - the designation of a public information officer, the description of the officer's duties and responsibilities - are found in the national, regional, area, state and vessel contingency plans reviewed as well as in the US Coast Guard's Incident Management Handbook. This bill's communication requirements generally appear to build upon existing requirements (for example, it does not appear that a database, as specified, is part of an existing statutory planning element for oil spills). Social media is SB 1083 (Allen) Page 6 of ? generally not mentioned in the contingency plans, although the US Coast Guard's handbook includes requirements for a social media strategy. The state oil spill contingency plan already calls for press releases to include information about 3rd party claim numbers (when available) and additional resources available to the public. The Committee may wish to amend the bill to allow the proposed communication element to be incorporated, as feasible, into existing plans. [Amendment 2] Issues with local public communication was also an identified issue in the response to the M/V Cosco Busan incident in San Francisco Bay . While each incident's circumstances are unique, the reports reviewing response noted that improvements were recommended in information sharing with local governments, for example, and that local stakeholders need to be familiar with the area contingency plan. Apparently not all local governments had been actively participating in the area contingency planning process. Preliminary Factual Report on the Refugio Beach spill issued . The Office of Pipeline Safety in the Pipeline and Hazardous Materials Safety Administration (PHMSA) of the US Department of Transportation released a "Preliminary Factual Report" on the Line 901 failure in February 2016. While noting that PHMSA continues to investigate the May 19, 2015 failure, preliminary findings "indicate that the root cause of the Line 901 failure was external corrosion". The total amount of the spill appears to remain uncertain. Initial estimates were 2400 barrels (about 100,800 gallons) but the operator later reported to PHMSA that it was 2960 (about 124,320 gallons)(without documentation). A final report is expected in Spring 2016. Both OSPR and the US Coast Guard are expected to release Refugio Beach response evaluations later this spring. OSPR leads the response to oil spills in California . The Governor's Office of Emergency Services is generally involved in coordinating and monitoring emergency response for spills other than oil through the emergency response structures and systems established in federal and state law and regulation. For oil spills, the Office of Emergency Services' role is limited compared to OSPR's role. SUGGESTED AMENDMENTS SB 1083 (Allen) Page 7 of ? AMENDMENT 1 Revise proposed communication element to be consistent with the administrator's authority and federal regulations requiring participation and consideration of the responsible party in the unified command. AMENDMENT 2 Incorporate the proposed communication element into the existing federal and state contingency planning process already established. SUPPORT California Coastal Protection Network Defenders of Wildlife Sierra Club California OPPOSITION California Chamber of Commerce California Independent Petroleum Association California Manufacturers & Technology Association Western States Petroleum Association -- END --