STATUTORY OR OTHER AUTHORITY: The Washington Utilities and Transportation Commission takes this action under Notice No. WSR 98-22-110, filed with the code reviser on November 4, 1998. The commission brings this proceeding pursuant to RCW 80.01.040.

STATEMENT OF COMPLIANCE: This proceeding complies with the Open Public Meetings Act (chapter 42.30 RCW), the Administrative Procedure Act (chapter 34.05 RCW), the State Register Act (chapter 34.08 RCW), the State Environmental Policy Act of 1971 (chapter 34.21C RCW), and the Regulatory Fairness Act (chapter 19.85 RCW).

DATE OF ADOPTION: The commission adopted this rule on December 9, 1998.

CONCISE STATEMENT OF PURPOSE AND EFFECT OF THE RULE: The proposed rules will implement the requirements of Executive Order 97-02, requiring agencies to review rules for clarity, intent and statutory authority, need, effectiveness and efficiency, coordination, cost and fairness. The proposed rules make several changes to existing rules. The new rules clarify the definition of low-level radioactive waste to exclude "naturally occurring or accelerator produced radioactive material." The proposed rules eliminate the definition and rules pertaining to an initial rate proceeding and the initial rate filing established at the onset of regulating this industry. Additionally, the proposed rules expand customer notice requirements for tariff filings, change the time annual reports are due, and change the reporting requirements to annual in order to implement a recent amendment to RCW 81.108.050(3).

REFERENCE TO AFFECTED RULES: This rule amends the following sections of the Washington Administrative Code: WAC 480-92-011 Application of this chapter, 480-92-021 Definitions, 480-92-031 Customer records, 480-92-041 Uniform system of accounts, 480-92-050 Annual report, 480-92-060 Minimum filing requirements, 480-92-070 Annual rate adjustment, 480-92-080 Contracts, 480-92-090 Site operator responsibility for complaints and disputes, 480-92-100 Tariffs, and 480-92-110 Penalty assessments.

PREPROPOSAL STATEMENT OF INQUIRY AND ACTIONS THEREUNDER: The commission filed a Preproposal Statement of Inquiry (CR-101) on February 27, 1998, at WSR 98-06-050.

ADDITIONAL NOTICE AND ACTIVITY PURSUANT TO PREPROPOSAL STATEMENT: The statement advised interested persons that the commission was considering entering a rule making on rules relating to rate regulation of site operators for the disposal of low-level radioactive waste. The commission also informed persons of the inquiry into this matter by providing notice of the subject and the CR-101 to all persons on the commission's list of persons requesting such information pursuant to RCW 34.05.320(3) and by sending notice to operators of low-level radioactive waste disposal sites, generators and brokers of low-level radioactive waste. Pursuant to the notice, the commission did engage in two stakeholder meetings and solicited written comments.

NOTICE OF PROPOSED RULE MAKING: The commission filed a notice of Proposed Rule Making (CR-102) on November 4, 1998, at WSR 98-22-110. The commission scheduled this matter for oral comment and adoption under Notice No. WSR 98-22-110 at 9:30 a.m., Wednesday, December 9, 1998, in the Commission's Hearing Room, Second Floor, Chandler Plaza Building, 1300 South Evergreen Park Drive S.W., Olympia, WA. The notice provided interested persons the opportunity to submit written comments to the commission.

MEETINGS OR WORKSHOPS; ORAL COMMENTS: The commission held two stakeholder meetings. The first meeting was held on June 11, 1998, and the second on September 3, 1998.

COMMENTERS (WRITTEN COMMENTS): The commission received written comments from US Ecology, Inc. supporting the proposal.

RULE-MAKING HEARING: The rule proposal was considered for adoption, pursuant to the notice, at the commission's regularly scheduled open public meeting on December 9, 1998, before Chairwoman Anne Levinson and Commissioner Richard Hemstad.

COMMISSION ACTION: After considering all of the information regarding this proposal, the commission adopted the proposed rules, without making any changes from the text noticed at WSR 98-22-110.

STATEMENT OF ACTION; STATEMENT OF EFFECTIVE DATE: In reviewing the entire record, the commission determines that WAC 480-92-011, 480-92-016, 480-92-021, 480-92-031, 480-92-041, 480-92-050, 480-92-060, 480-92-070, 480-92-080, 480-92-090, 480-92-100, and 480-92-110 should be amended and adopted to read as set forth in Appendix A, as rules of the Washington Utilities and Transportation Commission, to take effect pursuant to RCW 34.05.380(2) on the thirty-first day after filing with the code reviser.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 2, amended 10, repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 0, repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.

1. WAC 480-92-011, 480-92-016, 480-92-021, 480-92-031, 480-92-041, 480-92-050, 480-92-060, 480-92-070, 480-92-080, 480-92-090, 480-92-100, and 480-92-110 are adopted to read as set forth in Appendix A, as rules of the Washington Utilities and Transportation Commission, to take effect on the thirty-first day after the date of filing with the code reviser pursuant to RCW 34.05.380(2).

2. This order and the rules set out in Appendix A, after being recorded in the register of the Washington Utilities and Transportation Commission, shall be forwarded to the code reviser for filing pursuant to chapters 80.01 and 34.05 RCW and chapter 1-21 WAC.

3. The commission adopts the commission staff memoranda, presented when the commission considered filing a Preproposal Statement of Inquiry, when it considered filing the formal notice of proposed rule making, and when it considered adoption of this proposal in conjunction with the text of this order, as its concise explanatory statement of the reasons for adoption as required by RCW 34.05.025.

DATED at Olympia, Washington, this 2nd day of February 1999.

Washington Utilities and Transportation Commission

Anne Levinson, Chair

Richard Hemstad, Commissioner

William R. Gillis, Commissioner

OTS-2592.1

AMENDATORY SECTION(Amending Order R-366, Docket No. T-910676, filed 1/10/92, effective 2/10/92)

WAC 480-92-011
Application of this chapter.

(((1))) The rules in this chapter ((shall)) apply to any ((company operating as a)) low-level radioactive waste site operating company, as defined ((as such by the laws of)) in RCW 81.04.010, operating within the state of Washington, ((and which)) that is ((subject to the jurisdiction of the commission)) not exempt from commission regulation under RCW 81.108.100 and 81.108.110.

(((2) Upon proper showing of any site operator, the commission may waive or modify the provisions of any section herein except when such provisions are fixed by statute.  Application for the waiver or modification of any of the rules and regulations of the commission shall be made in accordance with the following instructions.

(a) Application should be directed to the Washington Utilities and Transportation Commission, 1300 S. Evergreen Park Drive SW, PO Box 47250, Olympia WA 98504-7250, and should be typewritten on paper 8 1/2 by 11 inches in size.

(b) Reference must be made in a separate paragraph to each section for which modification or waiver is requested, and a full explanation given as to the reasons why such waiver or modification is desired.))

[Statutory Authority: RCW 80.01.040 and 1991 c 272.  92-03-050 (Order R-366, Docket No. T-910676), § 480-92-011, filed 1/10/92, effective 2/10/92.]

(1) The commission may grant a waiver of any rule in this chapter when doing so is consistent with the public interest, the purposes underlying regulation, and sound public policy, and is not inconsistent with applicable statutes.

(2) To request a rule waiver, a site operator must file a written request with the commission identifying the rule for which a waiver is sought, and giving a full explanation of the reason for requesting the waiver.

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The definitions contained in chapter 81.108 RCW and RCW 81.04.010 are incorporated ((herein)) by ((this)) reference in this section.  To the extent that any of the definitions in this chapter differ from statutory definitions, the statutory definitions shall control.

"Commission" means the Washington utilities and transportation commission.

"Effective rate" means the highest permissible rate, for the disposal of low-level radioactive waste, calculated as the lowest contract rate plus an administrative fee, if applicable, determined pursuant to RCW 81.108.040.

"Extraordinary volume" means volumes of low-level radioactive waste delivered to a site caused by nonrecurring events, outside normal operations of a generator, that are in excess of twenty thousand cubic feet or twenty percent of the preceding year's total volume at such site, whichever is less.

"Extraordinary volume adjustment" means a mechanism that allocates the potential rate reduction benefits of an extraordinary volume ((between)) among all generators and the generator responsible for such extraordinary volume as described in RCW 81.108.070.

"Generator" means a person, partnership, association, corporation, or any other entity ((whatsoever)) that, as a part of its activities, produces low-level radioactive waste.

"Inflation adjustment" means a mechanism that adjusts the maximum disposal rate by a percentage equal to the change in price levels in the preceding period, as measured by a common, verifiable price index as determined in RCW 81.108.040.

(("Initial rate proceeding" means the proceeding described in RCW 81.108.040.))

"Low-level radioactive waste" means waste material ((which)) that contains radioactive nuclides emitting primarily beta or gamma radiation, or both, in concentrations or quantities ((which)) that exceed applicable federal or state standards for unrestricted release.  Low-level waste does not include waste containing more than ten nanocuries of transuranic contaminants per gram of material, nor spent reactor fuel, nor material classified as either high-level waste or waste which is unsuited for disposal by near-surface burial under any applicable federal regulations nor naturally occurring or accelerator produced radioactive material.

"Maximum disposal rate" ((means)) the maximum disposal is the rate ((described)) a site operator may charge generators as provided in RCW 81.108.050.

"Site" means a location, structure, or property used or to be used for the storage, treatment, or disposal of low-level radioactive waste for compensation within the state of Washington.

"Site operator" means a low-level radioactive waste site operating company, which includes every corporation, company, association, joint stock association, partnership, and person, their lessees, trustees, or receivers appointed by any court whatsoever, owning, operating, controlling, or managing a low-level radioactive waste disposal site or sites located within the state of Washington.

"Volume adjustment" means a mechanism that adjusts the maximum disposal rate in response to material changes in volumes of waste deposited at the site during the preceding period so as to provide a level of total revenues sufficient to recover the costs to operate and maintain the site.

[Statutory Authority: RCW 80.01.040 and 1991 c 272.  92-03-050 (Order R-366, Docket No. T-910676), § 480-92-021, filed 1/10/92, effective 2/10/92.]

(((1) Each site operator shall conform its accounting system to the "Uniform System of Accounts for Low Level Disposal Site Operators" dated January 1, 1992.  A copy of that document is available at the headquarters office of the commission and shall be available from the commission upon request.

(2) Each site operator shall maintain complete records of the disposal service provided to each customer, showing for each and every customer the amount billed, the type of service provided, the dollar amounts collected and the balance due.  Each site operator shall maintain customer records in such a way that the service and the rates and charges are easily identifiable in accordance with rates set for the site operator.  Records must be kept on file at the office of the site operator at the disposal site, and in any other place as may be approved by the commission, for a period of at least three years.)) A site operator must maintain, at a minimum, the following records, by generator, at the disposal site for at least three years:

• Customer name and address;

• Type of service provided;

• Current rates;

• Billed amount;

• Amount collected; and

• Balance due.

[Statutory Authority: RCW 80.01.040 and 1991 c 272.  92-03-050 (Order R-366, Docket No. T-910676), § 480-92-031, filed 1/10/92, effective 2/10/92.]

Pursuant to RCW 81.108.030(4) commission staff may require a site operator to use a uniform system of accounts to ensure that the commission can effectively audit the company's operations.

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((Each site operator shall file semiannual reports reporting the results of operations for the site.  These reports shall cover the period from January through June and from July through December.  Reports shall be filed on forms provided by the commission, and submitted no later than sixty days after the end of the period for which the report is submitted.  The first such report shall cover the period from July to December 1992.)) The commission will distribute an annual report form to site operators each year. The site operator must complete the form, file it with the commission, and pay regulatory fees for the preceding calendar year by May 1.

A site operator may request in writing prior to May 1, an extension of time to file its annual report, stating the reasons for the request and the extension date. The commission will not grant extensions for payment of regulatory fees.

[Statutory Authority: RCW 80.01.040 and 1991 c 272.  92-03-050 (Order R-366, Docket No. T-910676), § 480-92-050, filed 1/10/92, effective 2/10/92.]

(((1) No later than March 1, 1992, site operators shall file a request with the commission to establish an initial maximum disposal rate.  The request shall be in the form of a petition.  An original and twenty copies shall be filed with the commission.

(2) The petition shall set out the proposed maximum disposal rate; the proposed inflation, volume, and extraordinary volume adjustments; the proposed administrative fee for small volumes pursuant to RCW 81.108.040(5); and a proposed method for determining the cost to receive and handle extraordinary volumes of waste pursuant to RCW 81.108.070(1).

(3) The filing shall include, at a minimum, testimony, exhibits, work papers, summaries, annual reports, cost studies, proposed tariffs, and any other information necessary to determine a maximum disposal rate and to support the proposed rates, fees, adjustments, and costs.

(4) Within five days after filing the request with the commission, the site operator shall notify all customers who ship or deliver waste to the site that a request has been filed with the commission.  Notice shall be mailed to any customer who has paid for disposal of waste at the site within three years prior to the filing of the request.  The notice shall include a statement of the site operator's proposed maximum disposal rate and shall include the address of the commission, with a statement that more detailed information may be obtained by writing to the commission.

(5) Hearings before the commission on the rates, charges, and methods contained in the petition shall be conducted in accordance with chapter 480-09 WAC.

(6) Once approved, the maximum disposal fee shall become the highest disposal fee the site operator may charge customers.)) (1) When a site operator files for a general rate increase, it must follow the minimum filing requirements set forth in WAC 480-09-300 through 480-09-330.

(2) A site operator filing a request with the commission for a general rate increase must concurrently notify all generators who have disposed of low-level radioactive waste in the three years prior to the request for the proposed rate increases or service changes. The notice must include at minimum; a clear, brief explanation the generators can easily understand of the proposed rates, conditions and changes; the requested effective date; the commission's address, with a statement that generators may obtain more detailed information by writing to the commission; and a phone number for generators to call a company representative if they have questions.

[Statutory Authority: RCW 80.01.040 and 1991 c 272.  92-03-050 (Order R-366, Docket No. T-910676), § 480-92-060, filed 1/10/92, effective 2/10/92.]

(1) ((After January 1, 1993,)) A site operator((s)) may file each year for ((adjustments to the maximum disposal fee for reasons set forth in RCW 81.108.050(3).  Inflation and volume adjustments must be filed to become effective in January or July and must allow for thirty days from the date of filing to become effective.)) rate adjustments, as set forth in RCW 81.108.050(3), to become effective January 1 of the following year. Rate adjustments will be effective thirty days after filing with the commission, unless suspended. Upon proper request the commission may allow filings to become effective in less than thirty days.

(2) A site operator may also file for rate adjustments ((to the maximum disposal fee)) at any time for reasons set forth in RCW 81.108.050(4).

(((3) In all filings for a change in the maximum disposal fee, the site operator shall provide its customers with notice of the filing as required for the initial rate filing under this chapter.))

[Statutory Authority: RCW 80.01.040 and 1991 c 272.  92-03-050 (Order R-366, Docket No. T-910676), § 480-92-070, filed 1/10/92, effective 2/10/92.]

(1) Contract rates - Generally. A site operator may contract with any person to provide a ((contract)) disposal rate lower than the ((maximum disposal)) current tariff rate.  ((Each such contract shall be filed with the commission not less than thirty days prior to the proposed effective date of the contract, and shall become effective according to its terms the thirty-first day from the date of its filing unless earlier approved, suspended, or rejected by the commission.  Upon application and for good cause shown,)) Once the commission ((may)) approves ((the)) a contract ((as of its effective date prior to the date that the contract would have become effective in accordance with this section)), the site operator may not collect a disposal fee greater than the lowest contract rate plus an administrative fee.

(2) ((Each contract filed for commission approval shall be accompanied by such documentation as may be necessary to show that the contract does not result in discrimination among customers receiving like and contemporaneous service under substantially similar circumstances, and provides for the recovery of all costs associated with the provision of the service; provided, that discrimination between customers is not present to the extent a site operator charges small volume customers an administrative fee determined according to RCW 81.108.040(5).  The site operator shall file the following information in conjunction with each contract submitted for commission approval:

(a) A statement summarizing the basis of the rate or charge proposed in the contract and an explanation of the derivation of the proposed rate or charge;

(b) An explanation of all cost computations involved in arriving at the derivation of the level of the rate or charge in the contract; and

(c) A statement indicating the basis for the use of a contract rather than a filed tariff for the specific service involved.

(3) All contracts shall be for a stated time period.  The commission may approve terms and conditions which prescribe the rate or rates to be applied during the time period, if such rates are found to be appropriate.  Unless otherwise provided by the commission, such approval shall not be determinative with respect to the expenses and revenues of the site operator for subsequent ratemaking considerations.

(4) Every contract filed shall contain the provision that it is made subject to the power and authority of the commission to fix, alter, and amend just, fair, and reasonable classifications, rules and regulations, and rates for low-level radioactive waste disposal site operators.)) Contract requirements. A contract between a site operator and a generator must be limited to a definite time period.

A contract between a site operator and a generator must contain a provision that the contract is entered into subject to the power and authority of the commission to set just, fair, reasonable and sufficient rates for the disposal of low-level radioactive waste. The contract must provide for recovery of all costs associated with providing the service.

(3) Approval by the commission.

(a) The commission may approve the terms and conditions of a contract, and the rate or rates to be applied during the time period, if it finds the rates to be fair, just, reasonable and sufficient. The commission may not include revenues and expenses generated and incurred under contract for subsequent ratemaking purposes.

(b) Each contract must be filed with the commission at least thirty days before the proposed effective date of the contract. Contracts will become effective on the thirty-first day after filing with the commission unless:

(i) The site operator request, and the commission allows, for the contract to become effective in less than thirty days;

(ii) The commission rejects the contract; or

(iii) The commission suspends the contract and sets the matter for hearing.

(4) Information to support approval of a contract. A site operator must submit the following information with each contract filed for commission approval:

(a) A statement explaining the use of a contract rather than a filed tariff for the specific service involved;

(b) All documents and calculations showing how the site operator derived the proposed rate;

(c) All documents showing that the contract does not discriminate, or result in discrimination, among customers receiving like and contemporaneous service under substantially similar circumstances; and

(d) Any other information requested by the commission.

[Statutory Authority: RCW 80.01.040 and 1991 c 272.  92-03-050 (Order R-366, Docket No. T-910676), § 480-92-080, filed 1/10/92, effective 2/10/92.]

(((1) Complaints against a site operator shall be made by letter to the commission.  The complainant shall send a copy of the complaint to the site operator by registered mail.

(2) A complaint shall include the dates of acts or omissions complained against, the relevant statutes or rules, and other information essential to disposition of the complaint.

(3) The commission encourages alternate forms of dispute resolution to resolve disputes between the site operator and any other person.  In order to resolve disputes informally, the voluntary settlement procedures of WAC 480-09-465 may be used to resolve complaints brought before the commission.)) (1) If a site operator receives complaints or disputes regarding its operations, it must:

(a) Acknowledge the complaint;

(b) Investigate promptly;

(c) Report the results of the investigation to the complainant;

(d) Take corrective action, if warranted, as soon as appropriate under the circumstances;

(e) Tell the complainant the decision may be appealed to a higher level representative of the company, if any;

(f) Tell the complainant, if still dissatisfied after speaking with the higher level representative, of the commission's availability to review the complaint; and

(g) Provide the complainant with the commission's address and toll-free telephone number.

(2) Complainants may file with the commission:

(a) An informal complaint against a site operator as set forth in WAC 480-09-150; and/or

(b) A formal complaint against a site operator as set forth in RCW 81.108.080 and chapter 480-09 WAC.

(3) When commission staff refers an informal complaint to a site operator, the operator must:

(a) Investigate and respond to commission staff within two working days. Commission staff may grant an extension of time for responding to the complaint, if requested, and warranted; and

(b) Report regularly to commission staff about progress toward the solution and the final result.

(4) A site operator must keep a record of all complaints concerning service or rates for at least one year and, on request, make them readily available for commission review. The record must contain:

(a) The complainant's name and address;

(b) The date and nature of the complaint;

(c) The action taken; and

(d) The final result.

[Statutory Authority: RCW 80.01.040 and 1991 c 272.  92-03-050 (Order R-366, Docket No. T-910676), § 480-92-090, filed 1/10/92, effective 2/10/92.]

(1) ((Every)) A site operator ((shall)) must file with the commission((, and post at the company's main office at the disposal site, its)) a tariff showing all rates ((and charges, including all accessorial charges,)) for the disposal of low-level radioactive waste. The site operator must post the tariff at their office at the disposal site.

(2) ((Two copies of all such tariffs shall be transmitted to the commission with a letter of transmittal in duplicate.

(3) Tariffs shall be typed or printed on 8 1/2 by 11 inch paper and shall be paginated.  A margin of not less than five-eighths of an inch must be left on all four sides for binding.

(4) Tariffs shall consist of at least)) The tariff must include the following:

(a) A title page ((which identifies)) with the ((name of the)) company ((issuing the tariff)) name, date of issue ((and date)), effective date, and name((,)) and title ((and street address)) of ((tariff publishing)) the officer ((by whom the tariff or supplement is issued)).

(b) ((A general rules section that contains all rules and regulations governing how and in what manner rates and charges shall be assessed by the company.

(c) A section that names all rates and charges that shall be assessed by the company.

(d) A page listing all abbreviations and symbols used in the tariff, and containing an explanation of said abbreviations and symbols.)) Pages containing all rates and the rules for assessing rates.

(c) A page listing the abbreviations and symbols used in the tariff, and an explanation of each abbreviation and symbol.

[Statutory Authority: RCW 80.01.040 and 1991 c 272.  92-03-050 (Order R-366, Docket No. T-910676), § 480-92-100, filed 1/10/92, effective 2/10/92.]

((In addition to all other penalties provided by law, every site operator and every officer, agent, or employee of every such company who violates or procures, aids, or abets in the violation of any law, rule, regulation, or commission decision applicable to such company shall incur a penalty of up to one thousand dollars for every such violation.  Each and every such violation shall be a separate and distinct offense, and in the case of a continuing violation every day's continuance shall be deemed to be a separate and distinct violation.)) Pursuant to RCW 81.108.030 (4)(d) and chapter 81.04 RCW, the commission may assess penalties of up to one thousand dollars for each violation per occurrence if a site operator violates any provisions of Title 81 RCW, commission rule, or decision.

[Statutory Authority: RCW 80.01.040 and 1991 c 272.  92-03-050 (Order R-366, Docket No. T-910676), § 480-92-110, filed 1/10/92, effective 2/10/92.]

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