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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