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
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|Author: |Allen | | |
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|Version: |February 17, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Katharine Moore |
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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
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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
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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
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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
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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
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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
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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
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