Original Notice.

     Preproposal statement of inquiry was filed as WSR 01-13-084.

     Title of Rule and Other Identifying Information: Title 463 WAC, rules relating to siting energy facilities. Adopt new rules, and/or revise existing rules that would set standards and/or application requirements for siting new electrical generation facilities in the following areas: (1) Seismicity, (2) noise, (3) fish and wildlife, (4) wetlands, (5) water quality, (6) air quality, (7) socioeconomics, and (8) water quantity. Adopt new rules for mediation, stipulations and settlements. Adopt new/revised existing rules for site certification agreement issuance, amendment, monitoring, and term of certification. Update NPDES rules for consistency with federal requirements. Reorganize Title 463 WAC for clarity.

     Hearing Location(s): WSU Energy Building, 925 Plum Street S.E., Building 4, Conference Room 308, Olympia, WA 98504-3172, on August 10, 2003 [2004], at 2:00 p.m.

     Date of Intended Adoption: October 10, 2004.

     Submit Written Comments to: Allen Fiksdal, EFSEC Manager, EFSEC, P.O. Box 43172, Olympia, WA 98504-3172, e-mail efsec@ep.cted.wa.gov, fax (360) 956-2158, by August 13, 2004.

     Assistance for Persons with Disabilities: Contact Mariah Laamb by August 3, 2004, TTY (360) 586-4224 or (360) 956-2121.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This rule making is being conducted in response to:

     (1) Changes to Energy Facility Site Evaluation Council (EFSEC) statute resulting from EHB 2247;

     (2) A report on EFSEC reform requested by Governor Locke entitled "Improving Washington Energy Facility Site Evaluation Council" by Charlie Earl, President of Everett Community College that included suggested changes to EFSEC including rule making to improve the application and review process; and

     (3) Governor's directive to establish clear and objective criteria for new energy facilities.

     This rule making will give direction to future applicants to EFSEC regarding application content and levels of mitigation required resulting in streamlining the processing of the applications for large energy facilities.

     The following chapters will be revised and/or added. Certain existing sections are consolidated into new chapters for clarity. The title will be reorganized for clarity.

     Existing chapters that will be revised: Chapters 463-06, 463-10, 463-14, 463-18, 463-22, 463-26, 463-28, 463-30, 463-34, 463-36, 463-38, 463-39, 463-40, 463-42, 463-43, 463-47, 463-50, 463-54, and 463-58 WAC.

     New chapters that have been created: Chapters 463-62, 463-64, 463-68, and 463-72 WAC.

     Statutory Authority for Adoption: Chapter 80.50 RCW.

     Statute Being Implemented: Chapter 80.50 RCW, chapter 90.48 RCW (NPDES rules chapter 463-38 WAC).

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Energy Facility Site Evaluation Council, governmental.

     Name of Agency Personnel Responsible for Drafting and Implementation: Allen J. Fiksdal, EFSEC Manager, 925 Plum Street S.E., Building 4, Olympia, WA 98504-3172, (360) 956-2152; and Enforcement: Mike Mills, Compliance Manager, 925 Plum Street S.E., Building 4, Olympia, WA 98504-3172, (360) 956-2151.

     A small business economic impact statement has been prepared under chapter 19.85 RCW.

     EFSEC provides "one-stop" siting review for large energy facilities located in Washington. The council oversees the permitting and environmental review of proposed facilities and makes a recommendation on the project to the governor. In the past, EFSEC has been involved in siting nuclear power plants, coal-fired electric generating plants, petroleum product and natural gas transmission facilities and more recently, natural gas-fired electricity generating facilities. In the last twelve years, twelve of fifteen projects have been natural gas-fired electricity generation facilities and two are wind-powered facilities currently under review.

     The proposed rule revisions include changes to most sections of the current rules and the addition of several new sections. In order to evaluate the impacts of the proposed rules, the first consideration was to develop the baseline from which the changes are measured. Parties to adjudicative proceedings before the council have used the opportunity to present settlement agreements, and EFSEC has often approved negotiated settlements between parties and made them permit conditions. Moreover, the EFSEC siting process has evolved over time to provide more comprehensive information, though the detailed requirements may not be explicitly listed in the existing rules. As such, EFSEC considered two baselines to better inform the rule-making process. The existing rule baseline (ER baseline) considers the existing rule language as the baseline. The existing process baseline (EP baseline) utilizes the existing process as implemented by EFSEC in its review of a proposal as the baseline. Existing requirements under the EP baseline were determined based on previously reviewed projects.

     EFSEC has carefully evaluated the changes between the existing rules and proposed rule revisions. Most of the changes will be minor in nature and will not significantly affect applicants. Others may impose additional costs on new applicants. EFSEC has identified the following significant changes using the ER baseline:

     1. A new requirement to conduct a public meeting during potential site studies.

     2. Increased application requirements associated with noise and socioeconomic analyses, and review by EFSEC's independent consultant.

     3. Term limits and conditional updates on site certification agreements (SCA).

     4. New pollution insurance requirements.

     5. Elimination of the requirement to show a "need for power."

     Using the EP baseline, only small changes in requirements associated with expanded socioeconomic analysis and elimination of demonstrating a need for power will affect applicants.

     To determine the impact of the rule revisions on future facility costs requires consideration of the market for wholesale power. This market has seen considerable change in the last twenty-five years resulting from federal efforts to increase competition, technological innovation and increased environmental concerns associated with energy extraction, transmission and use. In order to forecast the type and quantity of expected new energy facilities a computer model was utilized. The results of the model indicate an increased use of coal and wind for power generation together with additional natural gas fired facilities. Several scenarios were considered to evaluate the responsiveness of expected resource development. The results indicate that greater environmental regulation tends to increase the expected amount of natural gas and renewable power generation.

     Using the ER baseline, a typical natural gas-fired or coal-fired electrical generating facility will experience an increase in siting costs of approximately $67,000 and an increase in operation related expenses of approximately $25,000-$80,000 per year. The increased annual expense comes from the requirement for pollution liability insurance and varies significantly based on facility type, operator, and location. Renewable sources should experience a siting cost increase of approximately $20,000 since noise analyses requirements are likely to be reduced. Pollution liability insurance is also likely to be less expensive for these facilities. Using the EP baseline, a very small cost savings is anticipated.

     It is possible that increased siting costs could affect sales by delaying development of new facilities or changing the returns on generating technologies. Under the ER baseline, the percentage increase in capital cost due to the rule revisions for a typical generation facility is estimated to be between 0.01% and 0.02% depending on the generating technology. Nonfuel operation and maintenance costs will rise between 0.4% and 1.0%. Overall, the cost increases are relatively modest.

     The impacts to small businesses were also evaluated. An analysis of compliance cost per employee indicates the impacts may be disproportionate. However, an alternative measure of compliance cost per hundred dollars of sales indicates no disproportionality. The extent of the burden is related to facility capacity as more sales can reduce the impact since the increased costs can be allocated over greater output. Analysis of past projects reviewed by EFSEC indicates that capacity selection is unrelated to the number of employees. Therefore, cost incurred per unit of sales is likely to be a more relevant statistic and the impacts are unlikely to be disproportionate. Secondary effects on retail rates were also considered and no disproportionality is anticipated.

     As noted above, it is unlikely the impacts will be disproportionate and so no specific actions were taken by EFSEC to reduce the impacts of the rule on small businesses. However, it is hoped the review process will be improved with these rule revisions in such a way that uncertainty and process application time are reduced. This should be a benefit to both small and large businesses. Businesses had the option of being involved in this rule making through a stakeholder rule development process conducted in 2001-2002 and several public meetings and a public comment period.

     In general, the industry most likely to be affected by this rule making is that involved in SIC 4911 "Electric Services." However, other industries could be indirectly affected and a list of potentially affected industries is listed in Section 5.

     BACKGROUND . . . . . . . . . . . . 6

     EFSEC AND RULE MAKING . . . . . . . . . . . . 6

     THE EFSEC PROCESS . . . . . . . . . . . . 7

     DESCRIPTION AND PURPOSE OF THE SBEIS . . . . . . . . . . . . 8

     CONTENTS OF THE DOCUMENT . . . . . . . . . . . . 9

2. DISCUSSION OF COMPLIANCE COSTS FOR WASHINGTON BUSINESSES . . . . . . . . . . . . 10

     INTRODUCTION . . . . . . . . . . . . 10

     BASELINE DEVELOPMENT . . . . . . . . . . . . 10

     COMPLIANCE COST BACKGROUND . . . . . . . . . . . . 11

     COMPLIANCE COSTS . . . . . . . . . . . . 11

     COMMENTS ON COMPLIANCE COSTS . . . . . . . . . . . . 16

3. FORECAST OF ELECTRICITY GENERATION IN WASHINGTON . . . . . . . . . . . . 17

     INTRODUCTION . . . . . . . . . . . . 17

     BASELINE . . . . . . . . . . . . 17

     ELECTRICITY GENERATION FORECAST . . . . . . . . . . . . 18

     ELECTRICITY GENERATION IN WASHINGTON . . . . . . . . . . . . 21

4. SALES IMPACTS AND DISTRIBUTION OF COSTS . . . . . . . . . . . . 22

     INTRODUCTION . . . . . . . . . . . . 22

     SALES IMPACTS BY RESOURCE TECHNOLOGY . . . . . . . . . . . . 22

     DISTRIBUTION OF COMPLIANCE COSTS . . . . . . . . . . . . 24

     SECONDARY IMPACTS . . . . . . . . . . . . 26

     CONCLUSION . . . . . . . . . . . . 27

5. BUSINESS INVOLVEMENT AND INDUSTRY . . . . . . . . . . . . 28

     ACTIONS TAKEN TO REDUCE THE IMPACT ON SMALL BUSINESS . . . . . . . . . . . . 28

     HOW WAS SMALL BUSINESS INVOLVED IN THE DEVELOPMENT OF THIS RULE? . . . . . . . . . . . . 28

     LIST OF INDUSTRIES REQUIRED TO COMPLY . . . . . . . . . . . . 29

APPENDIX A: REFERENCES

APPENDIX B: PROJECTS EVALUATED BY EFSEC SINCE 1992

APPENDIX C: ANALYSIS OF THE EXISTING AND PROPOSED RULES

APPENDIX D: CHARACTERIZATION OF INDUSTRY AND IMPACTS

APPENDIX E: FORECAST OF ELECTRICITY GENERATION IN WASHINGTON

1. INTRODUCTION

     BACKGROUND: The Energy Facility Site Evaluation Council (EFSEC) is proposing adoption of revised rules for siting energy facilities in Washington state. The proposed rules provide clarified direction under authority of chapter 80.50 RCW for public and private proponents that are considering constructing certain energy facilities within Washington state. EFSEC's goal is to adopt rules that help achieve the legislature's statutory policy objective of assuring abundant power at reasonable cost while protecting the public interest and the environment. This rule making is in response to:

     a. A report on EFSEC reform requested by Governor Locke entitled "Improving Washington Energy Facility Site Evaluation Council"¹ that suggested changes to EFSEC including rule making to improve the application and review process.

     b. The governor's directive to establish clear, quantifiable standards for siting new energy facilities to reduce uncertainty and expedite decision-making.

     c. Results of a collaborative process involving stakeholders to develop proposed rules that would provide standards for siting energy facilities.

     As required under RCW 19.85.030, EFSEC is developing and issuing this small business economic impact statement (SBEIS) as part of its rule adoption process. EFSEC will use the information developed in the SBEIS as required by law to ensure that the proposed rules are consistent with legislative policy.

     EFSEC AND RULE MAKING: EFSEC was created to provide "one-stop shopping" for those desiring to construct large energy facilities in Washington state. The council consists of six permanent² members: A full-time chair appointed by the governor, and one representative from each of five different state agencies including Fish and Wildlife, Ecology, Natural Resources, Community Trade and Economic Development, and the Utilities and Transportation Commission. The council oversees the permitting and environmental review of proposed facilities and makes a recommendation on the project to the governor. An approval by the governor binds all state and local agencies to the site certification agreement (SCA).

     EFSEC's authority is described in chapter 80.50 RCW and implemented via administrative rule Title 463 WAC. Title 463 WAC describes the make-up of the council and outlines the procedures potential applicants are to follow when siting energy facilities in Washington state. The rules include requirements for environmental review and application requirements.

     Several recent events have led to efforts to improve the EFSEC siting process. The Earl Report proposed several changes including appointing a full-time chair and directing the chair to initiate rule making. Improving the siting process in this context meant providing greater certainty for applicants and the financial markets that support them and improving the timeliness of the siting decision. The governor's directive also spurred EFSEC to consider the current process and the result was a series of stakeholder development group meetings that took place in 2001-02 and formed the basis for the rules currently presented.³

     The proposed rules describe council procedures, requirements for application and review and standards for wetland mitigation, fish and wildlife, noise, etc. These may impact applicants in terms of increased permitting, construction, operation and maintenance and site restoration costs. It is the purpose of this document to outline the potential cost impacts of the proposed rules.

     THE EFSEC PROCESS: The process for licensing major energy facilities⁴ in Washington begins with an optional potential site study (PSS), commissioned by EFSEC at the request of the proponent that identifies major impacts of a proposed facility, or with an application for site certification (ASC). The PSS is prepared in consultation with state agencies, local and tribal governments, federal agencies and other stakeholders and used to develop guidelines the applicant is to consider when developing the ASC and to determine if there are any significant environmental or other obstacles that would be difficult or impossible to mitigate. An applicant may elect to not request a PSS and simply submit an ASC.

     By statute, EFSEC must make a recommendation to the governor within one year upon receipt of an application. Application review involves review by an independent consultant for completeness with respect to EFSEC rules, includes notification and distribution of the ASC to interested parties and appropriate governmental agencies, together with an initial public hearing in the vicinity of the proposed project (within 60 days after receipt of the application) for the purposes of informing the public about the proposed project. This also formally initiates scoping under SEPA (and NEPA if applicable) for the EIS and EFSEC's independent consultant proceeds to develop a draft environmental impact statement. Subsequently, another hearing is held to determine whether the project is consistent with local land use plans.

     EFSEC's certification process requires the council to hold formal adjudicative hearings on the proposed project to allow the applicant and other parties admitted to the case to present information to support their positions. The testimony and exhibits introduced through this hearing process form the basis for the record the council will consider when determining whether to recommend project approval or disapproval to the governor. Concurrent with this process, EFSEC initiates the process for development of air and water discharge permits required by state and federal law and regulation⁵. Draft permits, and public comments received thereto, and additional documents prepared to comply with the State Environmental Policy Act (EIS), are also considered in the decision-making process.

     After the completion of its adjudicative review and completion of the final EIS, and if the council finds the project should proceed, EFSEC develops a draft site certification agreement (SCA) for consideration by the governor. If it finds the project should not proceed, then it will recommend to the governor that the project application be rejected. Within sixty days after receipt of the recommendation from EFSEC, the governor may approve the recommendation and execute the draft SCA, reject the application, or direct EFSEC to reconsider some aspects of the project and draft SCA.

     EFSEC has been involved in approximately thirty major energy projects since its inception. While projects proposed in the 1970s and 1980s tended to be nuclear power plants and oil pipelines and associated facilities, recent projects have been predominantly fossil-fuel or renewable energy powered electricity generation facilities.⁶

     DESCRIPTION AND PURPOSE OF THE SBEIS: The objective of this SBEIS is to identify and evaluate the various requirements and costs that the proposed rules might impose on business. In particular, the SBEIS examines whether the costs on business that might be imposed by the proposed rules impose a disproportionate impact on the state's small businesses. This is consistent with the legislative purpose of the Regulatory Fairness Act (chapter 19.85 RCW) and is set out in RCW 19.85.011:

     "The legislature finds that administrative rules adopted by state agencies can have a disproportionate impact on the state's small businesses because of the size of those businesses. This disproportionate impact reduces competition, innovation, employment and new employment opportunities, and threatens the very existence of some small businesses."

     The specific purpose and required contents of the SBEIS are contained in RCW 19.85.040. (The bracketed numbers and emphasized words are for the reader's convenience, and reflect some of the organization of this draft SBEIS.)

     "A small business economic impact statement must include [1] a brief description of the reporting, record keeping and other compliance requirements of the proposed rule, and [2] the kinds of professional services that a small business is likely to need in order to comply with such requirements. [3] It shall analyze the costs of compliance for business required to comply with the proposed rule adopted pursuant to RCW 34.05.320, including costs of equipment, supplies, labor and increased administrative costs. [4] It shall consider, based on input received, whether compliance with the rule will cause businesses to lose sales or revenue. [5] To determine whether the proposed rule will have a disproportionate impact on small businesses, the impact statement must compare the costs of compliance for small businesses with the cost of compliance for the ten percent of businesses that are the largest businesses required to comply with the proposed rules using one or more of the following as a basis for comparing costs:

     a. Cost per employee

     b. Cost per hour of labor

     c. Cost per hundred dollars of sales

     (2) A small business economic impact statement must also include:

     a. [6] A statement taken by the agency to reduce the costs of the rule on small businesses as required by RCW 19.85.030(3), or reasonable justification for not doing so, addressing the options listed in RCW 19.85.030(3).

     b. [7] A description of how the agency will involve small business in the development of the rule; and

     c. [8] A list of industries that will be required to comply with the rule.

     For purposes of an SBEIS, the terms "business," "small business," and "industry" are defined by RCW 19.85.020. "Small business" means any business entity, including a sole proprietorship, corporation, partnership, or other legal entity, that is owned and operated independently from all other businesses, that has the purpose of making a profit, and that has fifty or fewer employees. "Industry" means all of the businesses in this state in any one four-digit standard industrial classification as published by the United States Department of Commerce.

     CONTENTS OF THE DOCUMENT: The proposed rules developed by EFSEC as part of this rule-making process will be further evaluated in the following sections of this document. Specifically, the following sections contain the information required by the Regulatory Fairness Act (chapter 19.85 RCW):

     Section 2 contains a discussion of the rule revisions and the new rule sections. This section also provides [1] a brief description of the reporting, record keeping, and other compliance requirements of the proposed rule, [2] the kinds of professional services that a small business is likely to need in order to comply with such requirements, and [3] the costs of compliance for businesses required to comply with the proposed rule including costs of equipment, supplies, labor, and increased administrative costs. Section 3 provides a forecast of electricity generation for Washington state. Section 4 considers [4] whether compliance with the rule will cause businesses to lose sales or revenue and evaluates [5] whether the proposed rule will have a disproportionate impact on small business. Section 5 considers [6] actions taken to reduce the impact of the rule on small business, describes [7] how small business was involved in the development of this rule and provides [8] a list of industries required to comply with the rule.

     The Appendices contain additional information used in this analysis⁷. See the Table of Contents for a more detailed description.

2. DISCUSSION OF COMPLIANCE COSTS FOR WASHINGTON BUSINESSES

     INTRODUCTION: The proposed rules include revisions to most existing rule sections as well as completely new sections. In some sections, there were no changes made. In other cases, the changes made will have little or no effect on applicants. EFSEC has carefully evaluated each of the proposed revised or new rule sections and determined which are likely to have significant effects on future applicants. These rule sections were evaluated to determine the specific likely impacts and are described below. A description of the anticipated cost impacts and information utilized to determine the baseline is also provided.

     BASELINE DEVELOPMENT: In order to discuss the cost impacts of the proposed rule revisions it is necessary to consider the baseline from which the change in requirements is measured. In the case of EFSEC, the regulatory baseline can be difficult to determine as many of the executed SCA's have involved requirements determined during the adjudicative phase of the application process. Negotiated settlements between parties to the adjudicated proceedings are often proposed to and approved by EFSEC and placed as permit conditions. Moreover, some procedures and precedents have developed over time and are not explicitly stated in the existing rules.

     In an effort to more clearly present potential impacts, EFSEC has considered two different baselines in this analysis. One baseline represents what is presently stated in existing rule language. Where it is unclear what the requirements may be by rule, existing guidelines, policy, etc., present at the time of rule adoption were considered to be the standard in effect. The other baseline considered what applicants would have expected as a result of the adjudicative phase and existing review processes. It involved evaluating past projects and determining typical requirements and adjudicative outcomes. These baselines are denoted the "expected rule baseline" or "ER" baseline and the "expected process baseline" or "EP" baseline respectively.

     Determining the impacts of the rule changes involves not only evaluating the changes in the rule language, but also considering the future social, economic and natural environment. In the case of the proposed rule revisions, this is made difficult because of the significant uncertainty associated with the partially restructured wholesale electricity industry, federal policies, etc. A forecast of electricity generation in Washington state, and its impacts to the environment and citizens of the state is considered in Section 3.

     COMPLIANCE COST BACKGROUND: Chapter 19.85 RCW is quite specific about the types of costs that are to be considered in an SBEIS. The specific requirements were listed in Section 1 and will be further considered below. EFSEC has carefully evaluated the rules it expects to have cost impacts on businesses (under both baselines). Only those rules that appear to impose significant additional costs on businesses are included below.⁸

     The specific costs to be evaluated in this section include reporting and record-keeping costs, professional service fees and costs of equipment, supplies, and labor and increased administrative costs. Additional compliance costs will be noted separately. Lost revenue and proportionality are considered in Section 4. In cases where it appears likely that consultants will provide services requiring equipment or supplies, it is assumed to be included in the unit cost of consultants used for the analysis. All costs incurred by EFSEC are assumed to be passed along to applicants.

     COMPLIANCE COSTS⁹:

     Chapter 463-22 WAC, Potential Site Studies: The possibility that EFSEC will require a public information meeting during completion of a potential site study will be a new requirement under the ER baseline for those applicants that choose to complete one. This new rule section may require the applicant, the applicant's consultants, EFSEC members and staff, and EFSEC's consultants to travel to a location near the proposed site for a public meeting. It will also involve preparatory time and materials for the applicant and EFSEC staff. Under the EP baseline this will not be an increase in efforts as it has been required on many projects in the past. Table 2-1 summarizes the likely additional costs under both baselines.

     Reporting and Record-keeping Costs: It is not anticipated that there will be any additional reporting and record-keeping costs as part of this proposed rule.

     Professional Services: As mentioned previously, additional professional services will likely be required as part of this new rule language including payment to EFSEC for the council, staff and EFSEC's consultant to prepare for and attend the meeting, and the cost to the applicant and applicant's consultant to prepare and conduct a presentation. The additional costs are estimated to be approximately $17,000.

     Equipment and Supply Costs: Additional equipment and supply costs should be negligible. It is possible that extra media devices or presentation supplies may be required, but it is assumed that the consultants would include all equipment in their expenses.

     Increased Labor Costs: No additional labor should be required for the applicant outside of that purchased through the consultants.

     Increased Administrative Costs: As noted above, the applicant will be involved in the preparation and presentation of information about the application at a public meeting. EFSEC and the applicant will likely be involved in administration in setting up the meeting, processing invoices, etc. This increase is estimated to be approximately $400.

     Other Compliance Requirements: No additional compliance requirements are anticipated.

     Chapter 463-60 WAC, Applications for Site Certification: The proposed rule section will require additional information to be provided compared to what has been required in the past. These increased application requirements will likely involve increased professional services in preparing the application together with increased EFSEC consultant review costs. The detailed application costs are summarized in Table 2-2.

     The significant requirements for increased information include those associated with a noise analysis and socioeconomic studies. Noise analysis associated with evaluating noise emissions from a proposed facility will require preconstruction background noise monitoring and computer simulation of potential noise impacts. This has been required on past projects¹⁰, but was not present in the existing rule. The expanded socioeconomic analysis¹¹ will require data and analysis regarding impacts to housing and local government revenue.

     Reporting and Record-keeping Costs: This rule should not require increased reporting and record-keeping costs unless operational noise monitoring is required. However, this is not likely to be required unless there is a violation of applicable noise standards after the project has received certification, has been constructed and is operating.

     Professional Services: Professional service fees will be incurred as a result of the proposed noise standards. This will include initial background monitoring and computer simulations of noise. The estimated cost for background noise monitoring is approximately $17,000. Noise modeling can range from $10,000-$50,000 depending on the site characteristics and the surrounding development. If operational noise monitoring and analysis is required and it could be performed by plant staff, it will likely cost approximately $10,000 to complete. If a consultant is required, it would likely cost approximately $17,000 per analysis.

     The requirements for expanded socioeconomic analysis will require collection of more comprehensive data and data analysis associated with housing and projections of revenues and costs for local government. The increased cost associated with these new requirements is estimated to be approximately $7,700.

     Additional consulting and EFSEC review services will be required to review the noise and expanded socioeconomic analyses. The additional requirements will result in estimated additional costs of approximately $3,000.

     Equipment Costs, Supplies and Labor and Increased Administrative Costs: No additional equipment costs, supplies, labor or administrative costs are anticipated.

     Other Compliance Requirements: No other compliance requirements are likely to be required.

     Natural Environment-Wetlands: In some cases, wetlands will be an important component in siting facilities. The proposed wetland requirements will utilize revised rating criteria and revised requirements for wetlands creation and enhancement, and include provisions for wetland banking. The revised rating criteria will likely result in no net change or a slight reduction in wetland rating levels. Wetland enhancement ratios are expected to increase based on the draft "Guidance on Wetland Mitigation in Washington State" that has been completed. In general, this could result in increased wetlands mitigation requirements for applicants. In the past, applicable mitigation ratios were used to form a "starting point" for determining required mitigation at specific sites. In some cases, they were reduced due to other mitigating factors. The exact cost of any increased mitigation requirements will vary with the project site, other mitigation provided, etc. No additional reporting or record keeping should be required. Professional service fees will be required and will vary with the design requirements of the project. Typical values would vary from $10,000-$30,000. No additional equipment costs, supplies and labor or increased administrative costs should be required. Other compliance costs include the cost for wetland creation or enhancement which varies significantly depending on the extent of grading, structures, etc., but ranges from $10,000-$60,000 per acre. Land acquisition could also be required, although most mitigation is expected to be performed on-site.

     Wetland banking will also be allowed by the new rules and has the potential to reduce mitigation costs for applicants. No existing banks have been approved by ecology at this time and so it is difficult to determine the resulting cost savings. In general, lower design costs, and possibly lower construction costs are expected.

     Chapter 463-62 WAC, Construction and Operation Standards for Energy Facilities: The new rule will eliminate the requirement to show a "Need for Power." This will reduce the applicant's time in preparation and testimony before the council.

     Reporting and Record keeping: No reduced reporting and record keeping is likely.

     Professional Services: Fewer professional services will likely be required of applicants in the application process. This will involve less preparation and testimony than was previously the case and is estimated to save approximately $9,200.

     Equipment Costs, Supplies and Labor: No reduction in equipment costs, supplies or labor is likely.

     Decreased Administrative Costs: No reduction in administrative costs is expected.

     Other Compliance Requirements: No additional compliance requirements are likely.

     This reduction in cost will be applicable for both the ER baseline and the EP baseline.

     Reporting and record keeping: This requirement is likely to result in increased reporting and record-keeping costs associated with keeping EFSEC informed of changes at the proposed site over time. If a report is required, it will involve evaluating the executed SCA, current conditions at the site and in the proposed design, and an appearance before the council. If changes have occurred to the physical or regulatory environment, then this could necessitate opening up the agreement, additional review and potentially more mitigation. In general, the most significant impacts from a power plant are air and water impacts that are already being considered in permits that have a defined update process required by state and federal law and regulatory procedures. Technological changes requested by the certificate holder are already required to go through an SCA amendment process. As such, it is unlikely these requirements will be much of a deviation for new certificate holders from the current procedure. The estimated cost increase to develop a report for certificate holders that wait at least five years before construction is approximately $10,700. Any additional requirements due to changes in regulations or site environment would likely cost more.

     If an agreement expires after ten years and the certificate holder wants another agreement, then this would require a complete new application process. This would involve not only the increased costs of the application, but also the increased cost associated with any new rules in effect. Application costs could be $1.5-2 million and mitigation of impacts pursuant to updated rules in effect at the time of reapplication could cost substantially more. This type of situation has not occurred in the recent history of the council.

     No additional equipment costs, supplies, labor or administrative costs are likely to be required.

     Other Compliance Requirements: No additional compliance costs are anticipated.

     Chapter 463-72 WAC, Site Restoration and Preservation: The revised rule will now require pollution liability insurance for new facilities. The exact cost impact for new facilities depends significantly on the type of facility proposed, technological processes, environment, applicant, etc. This has been required for several projects by EFSEC in the past and is not considered a new requirement under the EP baseline.

     Reporting and Record keeping: No additional reporting and record keeping should be required.

     Professional Services: Professional services will be required associated with increased pollution insurance requirements. Pollution insurance will likely cost between $10,000 and $80,000 per year for most new facilities depending on the site and generating technology. For coal-fired facilities, the cost could be higher. Wind power projects would likely incur costs closer to $10,000-$20,000/year.

     Equipment Costs, Supplies and Labor and Increased Administrative Costs: No additional equipment costs, supplies, or labor costs are anticipated. Some increase in administrative cost is possible for ensuring the policy is in place every year.

     Other Compliance Requirements: No additional compliance requirements are expected as part of this analysis.

     COMMENTS ON COMPLIANCE COSTS: As can be determined above, it is likely that siting costs for a typical natural gas fired power plant could increase approximately $67,000¹³ and operation and related expenses could increase approximately $50,000 per year utilizing the existing rule baseline. However, it is important to note that under the existing process baseline, very few of these costs will be new to potential applicants. In fact, the above analysis actually indicates a very small compliance cost savings for applicants under the existing process baseline. As such, for any applicants familiar with EFSEC's process and requirements there will likely be a slight reduction in expected compliance costs.

     The above analysis has focused on generating resources and has not considered transmission facilities, oil refineries and other types of facilities that come under the regulation of EFSEC. For those types of projects, many of the new application requirements are still likely to apply. For example it is reasonable to expect that an applicant proposing a new transmission line would still be required to conduct a PSS public information meeting (if they elect to request a PSS), provide expanded socioeconomic analysis (and possibly a noise evaluation), be required to have pollution insurance and have its SCA subject to term limits and conditional updates. As such, much of the above analysis should apply.

3. FORECAST OF ELECTRICITY GENERATION IN WASHINGTON

     INTRODUCTION: Providing a quantitative estimate of the cost impacts and proportionality of the proposed EFSEC rule revisions requires considering the physical impacts to the regulated industry. Since the rules will only apply to newly certified and constructed plants, a forecast of the future development of energy generation facilities in Washington state is required and involves considering the structural changes in the markets for wholesale and retail electricity. The following section provides an estimate of the number and types of generation assets likely to be developed in Washington through 2025.¹⁴

     BASELINE: In order to discuss the economic costs of the proposed rule revisions it is necessary to consider both the regulatory and economic baseline. As was described in Section 2, EFSEC has decided to consider two different regulatory baselines for analysis.

     The economic baseline is also important to consider. Future generating facilities will be developed in the context of changing wholesale power markets, evolving government regulation and technological improvements. In an effort to consider this variability, EFSEC considered three alternative scenarios related to new requirements for greenhouse gas mitigation. This does not reduce the importance of other sources of uncertainty, but was provided to give some sense of how this specific source of uncertainty might affect new generation assets.¹⁵ The following scenarios were considered:

     Scenario 1: Scenario 1 assumes that existing conditions in the market for wholesale power do not change. The Oregon and Washington CO₂ mitigation requirements continue to be in effect at the existing rates adjusted by the Producer Price Index and existing mitigation amounts through 2025. There is no federal policy or additional state level policies put into effect over the life of the analysis and the Kyoto protocol does not go into effect. The Canadian provinces would also not adopt any further climate change mitigation programs. No other changes would occur in the competitive structure of the wholesale electricity industry from what is outlined elsewhere (see Appendix D).

     Scenario 2: Scenario 2 assumes revisions occur to existing climate change programs. The Oregon and Washington CO₂ standards remain in effect but the offset price rises to $30/ton in 2025. These requirements are assumed to apply only to new power plants and not existing sources of greenhouse gas emissions. California, British Columbia and Alberta would begin an emission offset program similar to Oregon's in 2007. All other states on the Western Interconnect would require carbon dioxide mitigation in 2012.

     Scenario 3: Scenario 3 involves significant changes to current climate change policy. Oregon and Washington standards for CO₂ remain in effect until 2012 when a federal program modeled after United States Senate Bill 139 of 2003 (the proposed Climate Stewardship Act) would go into effect. This would impact all new and existing electricity generating assets if they produce greenhouse gases by requiring permits for emissions.

     ELECTRICITY GENERATION FORECAST: The evaluation of how future electricity demand will be met by generation resources constructed in Washington is complicated. Electricity demand in Washington is only partially linked to generating resources in Washington. Because the power grid is an interconnected regional bulk power system, it is possible that plants built in Washington will serve loads in other states/countries and vice versa.

     The Northwest Power and Conservation Council (NPPC) evaluates the supply of power in the Northwest power pool by looking at the entire Western Interconnect (WECC). They use a computer optimization model¹⁶ that forecasts wholesale prices, develops the types of resources that are likely to come on-line and which will be likely to go off-line. The model evaluations involve significant input parameters including a library of possible generating facilities and operational characteristics and demand growth in various regions.¹⁷ They also make explicit assumptions regarding the future of the power system.

     There are various ways that new capacity could be provided to meet the projected load growth. Moreover, there are several things to consider including the future extent of deregulation and generation ownership, the outfall from the 2000-2001 energy crisis and increased preference for renewables due to state and federal policy and risk reduction. Restructuring has left us with a partially deregulated system, and further moves to refine the system are important to consider. Attempts to increase retail competition might significantly affect the amount of new resource required if consumers begin responding to price signals. The energy crisis has pushed utilities to further consider risk management options like addition of wind power (fixed-cost resources) to their portfolios and to create their own generation alternatives to reduce the impact of market price volatility. In Washington, chapter 19.29A RCW, passed in 2001, requires firms to offer some renewable power to their customers and utilities are currently actively involved in moving forward to do this. Proposed federal legislation is also considering extending existing wind power subsidies. All these changes may lead to increased demand for wind power.

     The development of increased siting and operation standards in Washington may also lead to an increase in the likelihood that power would be supplied from out-of-state sources. However, project location decisions are still driven to some extent by proximity to load as transmission system congestion and line losses from lengthy transmission routes can be significant and costly problems.¹⁸ Additionally, the attractiveness of generation assets will be affected by the amount of carbon mitigation required of new fossil-fueled power sources. This was considered in the scenarios used for this analysis and the results of the simulations are presented below in Tables 3-1 through 3-3.¹⁹

     Scenario 1 does not consider the impacts of Kyoto obligations in the Canadian provinces of British Columbia and Alberta. Moreover, this model is unlikely to best approximate the future for more than a few years since it is likely that other actions will be taken to mitigate climate change. Therefore, Scenario 2 might be a more realistic forecast of future generating assets.

Resource Group	2003 (1)	2005	2010	2015	2020	2025 (2)	Total Change (2)-(1)
New Coal	0	0	400	400	400	400	400
New NGCC	0	0	0	0	616	1848	1848
New Wind	0	0	0	1599	4798	4996	4996
New Solar	0	0	0	0	0	0	0
Planned NGCC	490	741	741	741	741	741	251
Planned Wind	4	120	655	1127	1127	1127	1123
Total Generating Capacity(MW)	41799	42434	42398	43538	47353	48783	6984

     The model indicates that approximately 400 MW of new coal fired generation would come on-line in Washington, Oregon and northern Idaho by 2025 if climate change mitigation is required in other states. This represents fewer coal-fired plants than identified under Scenario 1, indicating that coal plant siting is affected by out-of-region environmental requirements. However, 1,848 MW of new natural gas combined cycle power plants would be located in the region if mitigation standards are present elsewhere and 4,996 MW of new wind would be added. Natural gas appears to be the fuel of choice for base-load plants subject to increasingly strict environmental regulations.

     Scenario 3 was developed to represent the possibility that some federal action is taken on climate change. The results are presented below.

Resource Group	2003	2005	2010	2015	2020	2025	Total Change
New Coal	0	0	0	0	0	0	0
New NGCC	0	0	0	616	2466	3083	3083
New Wind	0	0	3398	4996	4996	4996	4996
New Solar	0	0	0	0	0	100	100
Natural Gas Industrial Cogeneration	416	457	457	457	457	457	457
Planned NGCC	490	741	741	741	741	741	741
Planned Wind	4	120	655	1127	1127	1127	1123
Total Generation Capacity(MW)	41799	42434	45468	46809	47243	47957	6158

     As can be seen, much stricter greenhouse gas mitigation requirements makes new coal-fired plants infeasible, but increases the quantity of gas-fired plants added over time relative to less-strict requirements. New wind sources are unaffected by the new greenhouse gas requirements. This scenario also requires existing plants to consider obtaining emission offsets and the model indicates increased retirements of existing plants.

     ELECTRICITY GENERATION IN WASHINGTON: The results of the computer analyses indicate the amount and type of new generation resources that would be proposed/constructed under alternative scenarios. The important result is that new natural gas, coal, wind and possibly solar powered plants are likely to be constructed in the northwest in the next twenty years.

     The results presented describe the estimated generation assets for Washington, Oregon and northern Idaho together. Therefore, it is necessary to separate the resources that will be developed in Washington from those developed in the other states in order to evaluate the impacts from EFSEC's proposed rule. Additionally, the modeling results presented utilize a library of new generation resources. For the fossil fuel facilities, the model library considers projects larger than 350 MW that would come under EFSEC review.²² In reality, the additions could also come from smaller facilities that would not all be under EFSEC jurisdiction.

     The forecasted generation assets were allocated among states based on existing retail electricity demand. This may over- or under-estimate new Washington generating resources since load growth rates will vary among states and generating resources may be located remotely from load. Moreover, renewable energy sources are much more location dependent than fossil fuel plants and this is not reflected within the region. Allocations were rounded to the nearest unit plant size. The results are presented in Table 3-4 below.

	Estimated Number of New Plants WA/OR/n. ID	Estimated New Capacity for WA/OR/n. ID (MW)	Estimated Number of New Plants in Washington	Estimated New Capacity for Washington (MW)	Estimated Number of New Plants in WA Regulated by EFSEC	Estimated New Capacity Regulated by EFSEC (MW)
Scenario 1
New Coal	4	1,600	2	1,200	2	800
New NGCC	0	0	0	0	0	0
New Wind	50	4,996	28	2,798	12	1,200
Planned NGCC	-	251	-	251	-	0
Planned Wind	-	1,123	-	629	-	629
Scenario 2
New Coal	1	400	1	400	1	400
New NGCC	3	1,848	2	1232	1	616
New Wind	50	4,996	28	2,798	12	1,200
Planned NGCC	-	251	-	251	-	0
Planned Wind	-	1,123	-	629	-	629
Scenario 3
New Coal	0	0	0	0	0	0
New NGCC	5	3,083	3	1,848	2	1,232
New Wind	50	4,996	28	2,798	12	1,200
New Solar	1	100	1	100	1	100
Planned NGCC	-	251	-	251	-	0
Planned Wind	-	1,123	-	629	-	629

4. SALES IMPACTS AND DISTRIBUTION OF COSTS

     INTRODUCTION: RCW 19.85.040 requires that the analysis consider [4] whether compliance with this rule will cause businesses to lose sales or revenue and [5] whether the proposed rule will have a disproportionate impact on small business. The increased costs come from increased siting and operation requirements for new energy facilities locating in the state.

     The increased costs will affect both existing and proposed energy facilities and could have indirect effects on other business entities operating in Washington state. The majority of the increase will affect siting and operation costs and be unrelated to output of the facility.²³ In general, an increase in fixed costs will impact firms with less output (i.e. "small" firms) more significantly than firms with more output (i.e. "large" firms). This occurs because firms with less output that try to recoup fixed costs by raising the price of their final product must raise the price proportionately more than large firms.

     Increased siting and operating costs for new energy facilities could benefit existing firms as existing plants are used more intensively or retirements of existing plants are delayed. In some cases, the impacts may be passed along to others as secondary impacts. Which business entities are affected and how these new requirements will affect them depend on the specific markets and market participants.

     SALES IMPACTS BY RESOURCE TECHNOLOGY: Potential sales impacts to new generating resources in Washington could occur if the increased costs of siting facilities delay construction or are passed along in wholesale electricity prices. The estimated increased siting and operation cost under the existing rule basis is approximately $930,000 for a typical natural gas fired combined-cycle power plant.²⁴ This represents approximately 0.02% of a typical plant's capital costs. If increased costs are passed along in wholesale electricity prices, the price of wholesale electricity is expected to increase by approximately $0.01/MWh which represents about 0.025% of the price of wholesale power.²⁵ Table 4-1 provides the results for the different electricity generating technologies.

	Natural Gas CC (610 MW)	Coal Steam (400 MW)	Wind-Powered (100 MW)	Solar-Powered (100 MW)
Capital Cost (Million $)26	359.9	559.3	110.3	651.8
Capital Cost Increase (Mill$)	0.07	0.07	0.02	0.02
Percentage Increase in Capital Cost	0.02%	0.01%	0.02%	0.00%
Fixed Nonfuel O&M Cost (Mill$/yr)	4.9	16.0	2	1.5
Fixed Nonfuel O&M Increase (Mill$/yr)	0.05	0.07	0.02	0.02
Percentage Increase in Nonfuel O&M Cost	1.0%	0.4%	1.0%	1.3%
Percentage Change in NPV27	-0.4%	-1.1%	-1.1%	N/A28
Change in Cost of Electricity ($/MWh)	0.01	0.03	0.09	0.14

     As can be seen, the net present values of the investments fall for an assumed market price, and electricity costs increase. In general, NPV falls less for gas plants than coal or wind powered plants since compliance costs are less and output is greater. The estimated cost per megawatt-hour increases more for coal than gas fired plants and even more for wind power due to the intermittent nature of this resource.

     Because of the reduction in NPV and increase in wholesale power costs it is possible that existing plants may experience an increase in sales if siting of new facilities is delayed due to the reduced investment return. This would increase the time of use of existing plants and potentially delay retirement of some plants. The impact of these investment value and price changes for both existing and new plants is likely to be relatively minor as other factors will drive siting decisions like fuel costs, public responsiveness and environmental policy. The fact that several facilities have been certified using standards similar to the proposed rules (i.e., the existing process baseline) supports this assertion.

     DISTRIBUTION OF COMPLIANCE COSTS: RCW 19.85.040 requires an evaluation of how compliance costs may vary between small and large firms. In general, the proportionality of cost impacts will depend on the baseline considered, entity type, and generation technology. Entities are classified as consumer owned utilities (COUs), investor owned utilities (IOUs) and independent power producers (IPPs).

     Chapter 19.85 RCW allows impacts to be measured based on cost per employee, labor hour or hundred dollars of sales. Determining the number of employees is made difficult because the rule revisions only apply to future generation facilities. Entities that currently own existing plants or transmit and distribute electricity in Washington along with IPPs currently involved with the northwest electricity industry were used as a proxy for future developers.²⁹ The generation technologies considered are those considered likely for development in Washington and identified in Section 3. The results of the proportionality analysis are listed using two of the criteria from chapter 19.85 RCW in Tables 4-2 and 4-3.³⁰

			Compliance Cost ($/employee)
	No. Firms	Avg. No. Employees	Natural Gas CC (610 MW)	Coal-Fired (400 MW)	Wind-Powered (100 MW)	Solar-Powered (100 MW)
Existing Rule Basis
IOU
Small	2	10,057	92.7	127.0	36.4	36.4
Large	1	20,200	46.1	63.2	18.1	18.1
COU
Small	34	14	66,557.3	91,260.2	26,145.8	26,145.8
Large	25	292	3,191.1	4,375.5	1,253.6	1,253.6
IPP
Small	4	21	44,371.5	60,840.1	17,430.5	17,430.5
Large	17	53,550	17.4	23.9	6.8	6.8
Existing Process Basis
IOU
Small	2	10,057	-0.0	-0.0	-0.0	-0.0
Large	1	20,200	-0.0	-0.0	-0.0	-0.0
COU
Small	34	14	-42.9	-42.9	-42.9	-42.9
Large	25	292	-2.0	-2.0	-2.0	-2.0
IPP
Small	4	21	-28.6	-28.6	-28.6	-28.6
Large	17	53,550	-0.0	-0.0	-0.0	-0.0

		Compliance Cost ($/sales)
	No. Firms	Natural Gas CC (610 MW)	Coal-Fired (400 MW)	Wind-Powered (100 MW)	Solar-Powered (100 MW)
Existing Rule Basis
IOU
Small	2	0.020	0.040	0.116	0.173
Large	1	0.020	0.040	0.116	0.173
COU
Small	34	0.020	0.040	0.116	0.173
Large	25	0.020	0.040	0.116	0.173
IPP
Small	4	0.020	0.040	0.116	0.173
Large	17	0.020	0.040	0.116	0.173
Existing Process Base
IOU
Small	2	-0.00	-0.00	-0.00	-0.00
Large	1	-0.00	-0.00	-0.00	-0.00
COU
Small	34	-0.00	-0.00	-0.00	-0.00
Large	25	-0.00	-0.00	-0.00	-0.00
IPP
Small	4	-0.00	-0.00	-0.00	-0.00
Large	17	-0.00	-0.00	-0.00	-0.00

     As can be seen from Table 4-2, the distribution of cost impacts as measured by additional dollars per employee appears to indicate that the impacts will be greater for firms with fewer employees and tend to hurt small COUs and IPPs more. However, Table 4-3 indicates that the cost impacts as measured per hundred dollars in revenue will not be greater for small firms but will vary with generating technology.

     These conflicting results are not surprising. The compliance costs for any given technology are largely the same regardless of employment and plant capacity. Therefore, as the number of employees increases the cost impacts per employee appear smaller. However, when costs are measured based on sales revenue, those costs are spread over the same revenue stream for a given size plant and technology regardless of the number of employees. Therefore, there appears to be no disproportionate impact.

     If plant capacity or technology selection varies with the size of developer, we would expect that effects would be disproportionate. Therefore a more relevant question is "does new plant capacity or technology choice vary with the size of the proponent firm in the class of plants 350 MW or larger?" EFSEC's experience with previous SCAs indicates no clear trend in plant size, generation technology and proponent size.³¹ Oregon's siting council (EFSC) has had a similar experience.³² It appears that both small and large firms develop plants greater than 350 MW and capacity and energy source choices are largely unrelated to developer size. As such, these rule revisions should not disproportionately affect smaller proponents more than large proponents.

SECONDARY IMPACTS

     Rate Impacts: It is possible that some or all of the increased costs associated with the proposed rule revisions will be passed on to consumers in the form of higher electricity rates. For COUs and IOUs this would occur by including the increased cost in the utility rates approved by individual utility boards. For IPPs, higher prices would be determined within the market for wholesale power.

     Generation costs would increase differently for each type of generation technology since some plants have less capacity and lower capacity factors. A new wind power plant would have to raise money for a lower average MW capacity than a natural gas plant. As noted previously, we would expect a cost increase of between $0.01 and $0.09 per megawatt-hour depending on the technology. Given the typical quantities of power used by various types of consumers in Washington³³, we would expect the average annual utility bills for the different consumer classes to increase as listed in Table 4-4.

	100% New Sources		10% New Sources
Wholesale Power Cost Increase	$0.01/MWh	$0.09/MWh	$0.01/MWh	$0.09/MWh
Residential Consumers	$0.13/yr	$1.15/yr	$0.01/yr	$0.12/yr
Commercial Consumers	$0.84/yr	$7.56/yr	$0.08/yr	$0.76/yr
Industrial Consumers	$10.62/ yr	$95.60/yr	$1.06/yr	$9.56/yr

     Table 4-4 lists the consumer class and additional annual cost of electricity for both a $0.01/MWh increase and $0.09/MWh increase assuming all electricity comes from a source subject to the new rules ("100% new sources") or that only 10% of the power comes from a source subject to the new rules ("10% new sources"). It is unlikely that any given consumer would get all its power from a single new source. Therefore, the second scenario (i.e. 10% power from a new source) is likely to be more representative.

     To consider whether these potential rate impacts would be disproportionately borne among business consumers involves evaluating the amount of power used by firms of different sizes. Table 4-5 lists the employment sizes, consumption per employee and average energy consumption for typical firms.³⁴

Firm Size (No. of Employees)	Average No. of Employees	Consumption/Employee (MWh/yr)	Cost/Employee (assuming $0.01/MWh increase)	Cost/Employee (assuming $0.09/MWh increase)
<50	6	2.72	$0.03	$0.24
50-99	68	8.32	$0.08	$0.75
100-499	193	23.80	$0.24	$2.14
500-999	690	36.57	$0.37	$3.29
>1000	5892	5.19	$0.05	$0.47

     As can be seen from Table 4-5, the exact distribution of costs tend to hurt firms at least partially in proportion to their size. Bigger firms pay more per employee for the cost impacts. For very large firms the effect is smaller, but still larger than for small firms.

     Input Impacts: Natural gas has been the most efficient fuel used for new electricity facilities in recent years. Raising the cost to develop these plants might lead to a reduction in the use of natural gas. However, any impact would depend on the cost of the other generation technologies like wind, and on the cost for other inputs like coal. To the extent that coal will also be subject to increased requirements for carbon mitigation and that wind is a site specific resource with a low capacity factor, it is unlikely that the increased costs will change the generation technology choice at the margin. However, the price of natural gas may remain high which will tend to encourage the use of other fuel sources. Generally speaking, it is unlikely that firms will be able to negotiate reduced energy input prices that will allow them to avoid raising prices or accepting a reduced investment return.

     CONCLUSION: Businesses engaged in the production of electricity will incur increased compliance costs as a result of the rule revisions. In general these increases will vary significantly depending on the evaluation baseline used, and changes in markets for wholesale electricity and environmental regulation.

     Many of the cost impacts outlined in this section depend on the "existing rule" baseline. As was noted previously, most of the changes written into the revised and new rules are already being experienced by applicants planning to site large energy facilities in Washington because they are incorporated into the existing review process. Therefore, the impact on the decision by a proponent to locate a facility will likely not be impacted to any great extent as firms are already taking the proposed changes into their project planning process.

     This analysis was provided to clarify the potential impacts of the rule change. In general, it appears the impacts from the rule revisions will be relatively minor and are unlikely to be disproportionately borne by small businesses.

5. BUSINESS INVOLVEMENT AND INDUSTRY

     ACTIONS TAKEN TO REDUCE THE IMPACT ON SMALL BUSINESS: As noted previously, it appears that the rule making will be unlikely to have disproportionate impacts on smaller firms. EFSEC's overall intent for this rule making was to make the application process more efficient for project proponents. It is intended that the new rules will reduce the uncertainty associated with siting facilities in Washington and reduce the associated financial penalties. It is also hoped that more explicit standards will reduce the time for a recommendation to be made to the governor by more clearly stating the type and quantity of submittals required of an applicant.

     In addition, EFSEC removed the requirement to provide the need for power analysis which should reduce the burden on firms. To the extent, that these tasks are fixed costs, they will benefit firms with less output more than firms with greater output. EFSEC did not reduce the level of inspections for small firms, delay compliance timetables or reduce fines.

     HOW WAS SMALL BUSINESS INVOLVED IN THE DEVELOPMENT OF THIS RULE? As mentioned previously, the stimulus for rule making came from the Earl Report. The council began rule making in 2001 by convening a standards development group that met from December 2001 to August 2002. The task of the group was to identify subjects that needed to be considered and develop proposals for rules. The results of this effort were reported in the Krogh and Leonard Report and were the basis for the draft rules that were developed by EFSEC. Two public meetings were held to consider the proposed rules and written comments were taken through December 2003. The proposed standards were also posted on EFSEC's website and a final public meeting was held in May 2004. Throughout the process, EFSEC has encouraged participation from all entities to help in the council's consideration of the impacts and outcomes of the proposed rules. The public process was open to both small and large businesses.

     LIST OF INDUSTRIES REQUIRED TO COMPLY: The most likely industries to which these rules would apply would be those involved in the production and transmission of electricity or development of refineries or fuel transmission lines. Other firms that elect to develop cogeneration facilities might also be included. Table 5.1 contains [9] a list of industries required to comply with the rule(s). The table was constructed based on data provided by the Washington State Employment Security Department. In general, the majority of plants are classified SIC Code 4911. The other codes reflect related services such as management consultants and commodities brokers.

SIC Code	Description
1321	Natural Gas Liquids
2911	Petroleum Refining
4612	Crude Petroleum Pipeline
4911	Electric Services
4922	Natural Gas Transmission
6221	Commodity Contract Brokers, Dealers
7389	Business Services, nec
8742	Management Consulting Services

¹ Known as "the Earl Report." This report and other information including minutes of stakeholder discussions can be found at the EFSEC website; www.efsec.wa.gov.

² When an application is received by EFSEC, four additional agencies may opt into the review of the proposal, and local governments and port districts where the facility is proposed may also appoint members to the council.

³ The results of those meetings are summarized in "Krogh & Leonard Report to Jim Luce, Chair, Washington Energy Facility Site Evaluation Council Regarding EFSEC Standards Development," 2002, available at www.efsec.wa.gov.

⁴ A process known as "certification."

⁵ EFSEC has been delegated authority by the EPA to issue air and water quality permits authorized in federal law.

⁶ Projects EFSEC has provided review and oversight of since 1992 can be found in Appendix B. Attachment 3 of the Earl Report provides a listing of project involvement prior to 1992.

⁷ Due to size limitations relating to the filing of documents with the code reviser, the SBEIS does not contain the appendices that further explain the council's analysis. Additionally, it does not contain the raw data used in this analysis, or all of EFSEC's analysis of this data. However, this information is being placed in the council's rule-making file, and is available upon request.

⁸ A complete "crosswalk" describing existing and proposed rules can be found in Appendix C.

⁹ All chapter numbers listed are the "new" numbers assigned by the code reviser.

¹⁰ Potential noise impacts have become a very significant issue in EFSEC reviewed projects in the past ten years.

¹¹ To complete an EIS, detailed socioeconomic information is required.

¹² Only required if it is determined that current noise emissions exceed applicable WACs. Amount assumes that monitoring is conducted by plant staff.

¹³ Assumes project construction begins more than five years from the effective date of the SCA. If project commences before that period, then the siting cost increase would be approximately $56,300 for a typical site.

¹⁴ A complete description of the modeling can be found in Appendix E.

¹⁵ These modeling results were originally developed for consideration of a proposed EFSEC carbon dioxide mitigation rule section. The legislature passed SHB 3141 which was very similar to EFSEC's proposed rule and EFSEC is no longer considering any CO² mitigation as part of this rule making.

¹⁶ NPPC uses Aurora by Epis, Inc. EFSEC acknowledges the excellent assistance provided by Jeff King and the council on this analysis.

¹⁷ The regions are based on transmission congestion difficulties rather than political boundaries and are described in the appendix.

¹⁸ Proximity to fuel supply, water for cooling and transmission connections are also important factors.

¹⁹ Appendix D provides background information on the industry and Appendix E has a more complete discussion of the modeling procedure and results.

²⁰ Natural gas combined cycle power plant.

²¹ Total includes existing capacity in addition to new and planned facilities.

²² Model coal plant size is 400 MW, gas plant is 610 MW (w/duct firing), wind is 150 MW and solar is 100 MW.

²³ These are known as "fixed" costs. Costs that depend on output levels are known as "variable" costs.

²⁴ This calculated cost increase and those listed in Table 4-1 are based on compliance costs outlined in Section 2 under the existing rule baseline, assume no wetlands are impacted and assume construction begins more than five years from SCA execution. The real discount rate used is 4%.

²⁵ Assuming a wholesale price of $40/MWh.

²⁶ Cost assumptions taken from "Wholesale Power Price Forecast for the Fifth Power Plan," NPPC, 2003.

²⁷ Calculations assume an initial wholesale price of $40/MWh for gas plants, $45/MWh for coal plants and $60/MWh for wind plants. The calculations do not include the federal production tax credit for wind.

²⁸ Solar power is not economically viable at this time.

²⁹ Data used is from NPPC "Power Plants of the Northwest," the Northwest Independent Power Producers Coalition, Washington Employment Security, Corporate websites and personal contacts.

³⁰ The average number of employees listed for the large firms is based on the largest 10% of firms by employee number.

³¹ The proponent for the largest EFSEC certified facility was a small firm. The sole constructed plant was built by a large firm.

³² 90% of plants certified by Oregon's EFSC were large firms.

³³ Data from Energy Information Administration (EIA) "U.S. Average Monthly Bill by Sector, Census Division and State, 2001," http://www.eia.doe.gov/cneaf/electricity.

³⁴ Data from "Electricity: Components of Net Demand, 1998" Energy Information Administration and "U.S. Employer Firms 2000," U.S. Census Bureau.

     A copy of the statement may be obtained by contacting Allen J. Fiksdal, EFSEC Manager, EFSEC, P.O. Box 43172, Olympia, WA 98504-3172, phone (360) 956-2152, fax (360) 956-2158, e-mail efsec@ep.cted.wa.gov.

     A cost-benefit analysis is not required under RCW 34.05.328. EFSEC is not a listed agency under RCW 34.05.328 (5)(a)(i).

June 23, 2004

Allen J. Fiksdal

EFSEC Manager

OTS-7113.3

     Chapter 463-58 WAC contains rules relating to independent consultant fees for potential site study, application processing, and compliance determination.)) The purpose of this chapter is to describe the council and set out general information on agency operations and implementation of the public records provisions of chapter 42.17 RCW.

[Statutory Authority: RCW 80.50.040(1). 98-01-079, § 463-06-010, filed 12/12/97, effective 1/12/98. Statutory Authority: RCW 80.50.040. 91-03-090, § 463-06-010, filed 1/18/91, effective 2/18/91; Order 103, § 463-06-010, filed 11/4/76.]

     (2) The voting membership of the council consists of ((the authorized representatives)) directors, administrators, or their designee of the member agencies listed in RCW 80.50.030. In addition, a voting county representative, a voting city representative, and a nonvoting port district representative may sit with the council under the circumstances described in RCW 80.50.030.

     (((2))) (3) The chair ((of the council)) is the person appointed by the governor with the advice and consent of the senate to a term coextensive with that of the governor pursuant to RCW 80.50.030.

     (a) The chair has a vote on all matters before the council and has an office at the ((department of community, trade, and economic development)) council's office.

     (((3))) (b) Pursuant to RCW 80.50.030, the chair may designate a member of the council to serve as acting chair. The acting chair shall remain entitled to vote on any proposed council action and shall continue to fulfill his or her responsibilities under RCW 80.50.030 (3) through (5).

     (c) The chair or a designee executes all official documents, contracts and other materials on behalf of the council.

     (d) The chair or any member of the council may perform such duties as are specifically authorized and directed by the council, not in conflict with RCW 80.50.040.

     (4) The department of community, trade, and economic development provides administrative services and staff to the council.

[Statutory Authority: RCW 80.50.040(1) and 34.05.220 [(1)](b). 98-01-078, § 463-06-020, filed 12/12/97, effective 1/12/98. Statutory Authority: RCW 80.50.040(1). 92-09-013, § 463-06-020, filed 4/2/92, effective 5/3/92; 78-09-077 (Order 78-4), § 463-06-020, filed 8/28/78; Order 103, § 463-06-020, filed 11/4/76.]

[Statutory Authority: RCW 80.50.040(1) and 34.05.220 [(1)](b). 98-01-078, § 463-06-030, filed 12/12/97, effective 1/12/98. Statutory Authority: RCW 80.50.040(1). 92-09-013, § 463-06-030, filed 4/2/92, effective 5/3/92; 81-20-028 (Order 81-4), § 463-06-030, filed 9/30/81; Order 103, § 463-06-030, filed 11/4/76. Formerly WAC 463-20-060.]

     (2) In some circumstances, the chair may perform duties which are specifically authorized by the council.

     (3) Day-to-day administration is handled by the council manager and staff.

     (4) The council manager is responsible for implementing the decisions of the council and for directing the staff that supports the council.

     (5) The council staff shall assist applicants in identifying issues presented by the application, review all information submitted, and recommend resolutions to issues in dispute that would allow site approval and may make recommendations to the council.

     (6) The council staff are not parties to adjudicative proceedings conducted under chapter 34.05 RCW.

[Statutory Authority: RCW 80.50.040(1). 92-09-013, § 463-06-050, filed 4/2/92, effective 5/3/92; Order 103, § 463-06-050, filed 11/4/76.]

     (2) The public may request public records through the following mechanisms:

     (a) Mail. Requests by mail shall be addressed to the council's mailing address: The Energy Facility Site Evaluation Council, P.O. Box 43172, Olympia, WA 98504-3172. The front of the envelope shall conspicuously state: "Public Records Request."

     (b) E-mail. As of the date these rules are promulgated, the council's e-mail address is: efsec@ep.cted.wa.gov. This e-mail address may change without notice. The subject line of e-mail requests shall state: "Public Records Request."

     (c) In person. In-person requests shall be made at the council's office, 925 Plum Street S.E., Olympia, Washington, or as such office may subsequently be relocated, during regular business hours.

     (d) Fax. Faxed requests shall be accompanied by a cover sheet that conspicuously states: "Public Records Request."

[Order 103, § 463-06-060, filed 11/4/76. Formerly WAC 463-20-040.]

[Statutory Authority: RCW 80.50.040(1). 92-09-013, § 463-06-070, filed 4/2/92, effective 5/3/92; Order 103, § 463-06-070, filed 11/4/76. Formerly WAC 463-20-050.]

     (6) A prominent statement that the request is being made pursuant to chapter 42.17 RCW and these regulations.)) Chapter 42.17 RCW requires the council to prevent invasions of privacy, protect public records from damage or disorganization, prevent excessive interference with its essential functions, and prevent unreasonable disruptions of operations. Accordingly, the public may inspect and copy public records upon compliance with the following procedures:

     (1) A member of the public who seeks a public record shall make a written request. The purpose of requiring written requests is to assist the council in tracking, managing and responding to the request in a timely and orderly fashion.

     (2) No particular form of writing is required so long as the request complies with WAC 463-06-060 and contains the following information:

     (a) Name, mailing address, and telephone number of the requesting party;

     (b) The date on which the written request is made;

     (c) Identification of the record requested with sufficient particularity that the council can identify the record and make it available. Such identifying information should, if possible, include the title, subject matter, and date of the record;

     (d) A signed statement that the records will not be used for commercial purposes if a list of individuals is being requested, or for any use prohibited by law; and

     (e) A prominent statement that the request is being made pursuant to chapter 42.17 RCW and these regulations.

     (3) To facilitate processing the request, the requesting party should also include:

     (a) Either a fax number or an e-mail address or both.

     (b) A reference to the record as it is described in the current public record index maintained by the council.

[Order 103, § 463-06-080, filed 11/4/76. Formerly WAC 463-20-070.]

[Order 103, § 463-06-090, filed 11/4/76.]

     (c) The council, at its option, shall not provide copies unless the associated fees have been paid in full prior to delivery of documents; provided that this advance payment requirement shall not apply to other government agencies or tribes or to parties or intervenors in proceedings before the council.

[Order 103, § 463-06-110, filed 11/4/76. Formerly WAC 463-20-080.]

     (4) If the records contain materials exempt from public disclosure, the council shall deny disclosure of the exempt materials and disclose any remaining, nonexempt materials. At the time of denial, the council shall clearly specify in writing the reasons for denial, including a statement of the specific exemptions or reason for denial of disclosure.

[Order 103, § 463-06-120, filed 11/4/76. Formerly WAC 463-20-090 (part).]

[Statutory Authority: RCW 80.50.040(1). 92-09-013, § 463-06-150, filed 4/2/92, effective 5/3/92; Order 103, § 463-06-150, filed 11/4/76. Formerly WAC 463-20-100 (part).]

     (1) Form and content. The index shall be maintained in electronic form with copies available on paper. The index shall contain topic headings.

     (2) Location and availability. The index shall be available to the public under the same rules and on the same conditions as are applied to other public records.

     (3) Schedule for revisions and updates. The council shall revise and update the index annually.

[Order 103, § 463-06-170, filed 11/4/76. Formerly WAC 463-20-111.]

     The following sections of the Washington Administrative Code are repealed:

WAC 463-06-130	Deletion of identifying details.
WAC 463-06-140	Written denials.
WAC 463-06-160	Time for completion of review.

OTS-7114.1

AMENDATORY SECTION(Amending WSR 98-01-080, filed 12/12/97, effective 1/12/98)

WAC 463-10-010   Definitions.   Except where otherwise indicated in the following chapters, the following terms have the meaning shown:

     (1) "Council" ((refers to)) means the energy facility site evaluation council created pursuant to chapter 80.50 RCW and, where appropriate, to the staff of the council.

     (2) "Applicant" means the person or entity making application for a certification or permit covered by this title.

     (3) "Adjudicative proceeding" means a proceeding conducted pursuant to RCW 80.50.090(3) and the state Administrative Procedure Act.

     (4) "Certificate holder" means a person or entity who is signatory to a site certification agreement, which has been ((approved by the council and)) signed by the governor, and who is bound by ((the)) its terms ((therein)).

     (5) "Chair" means the person appointed by the governor pursuant to RCW 80.50.030.

     (6) "Council manager" means the individual who handles day-to-day administration for the council, administers the decisions of the council, and directs the staff that supports the council.

     (7) "Site certification agreement (SCA)" means the agreement between the state of Washington and the applicant that prescribes the conditions required for construction and operation of an energy facility.

     (8) "Rule" as used herein, includes the terms "agency order," "directive" or "regulation" in accordance with RCW 34.05.010(16).

[Statutory Authority: RCW 80.50.040(1). 98-01-080, § 463-10-010, filed 12/12/97, effective 1/12/98. Statutory Authority: RCW 80.50.040. 91-03-090, § 463-10-010, filed 1/18/91, effective 2/18/91; Order 104, § 463-10-010, filed 11/4/76.]

OTS-7115.2

AMENDATORY SECTION(Amending Order 104, filed 11/4/76)

WAC 463-14-010   Purpose ((of this chapter)).   The purpose of this chapter is to publicize significant policy determinations and interpretations by which the council is guided in implementing chapter 80.50 RCW and this title.

[Order 104, § 463-14-010, filed 11/4/76.]

     (3) Providing abundant power at reasonable cost.

[Order 104, § 463-14-020, filed 11/4/76.]

     (2) The public land use consistency hearing as prescribed in RCW 80.50.090(2) shall be held in the county where the proposed site is located to determine whether or not the proposed use of the site is consistent and in compliance with city, county or regional land use plans ((or)) and zoning ordinances at the time of application. ((However, in order to foster general public comment on the proposed site, the council will allow general public comment at such local public hearings, wherever possible. The council must also conduct a second)) If the proposed site is located in more than one county, a land use consistency hearing shall be held in each county. The council shall limit public testimony at this hearing to the issue of consistency and compliance with city, county, or regional land use plans and zoning ordinances.

     (3) Although all persons desirous of participating may not be accorded "party" status in the public hearing held as an adjudicative proceeding under chapter 34.05 RCW((. Although all persons desirous of participating may not be accorded "party" status in this proceeding))prior to preparation of any recommendation to the governor, the council, at times and places designated by the council, upon compliance with reasonable procedures, shall allow any person desiring to be heard ((shall be allowed)) to speak in favor of or in opposition to the proposed ((facility after the close of the evidentiary hearing but prior to preparation of any recommendation to the governor)) site.

     (4) The council views the provisions of RCW 80.50.090(4) as authorizing it to conduct additional public hearings ((of either the)) as "((local)) public informational hearings," "public land use consistency hearings" or "adjudicative proceedings." ((variety)) The council may also hold public meetings concerning the application for site certification.

[Statutory Authority: RCW 80.50.040. 91-03-090, § 463-14-030, filed 1/18/91, effective 2/18/91; Order 104, § 463-14-030, filed 11/4/76.]

[Order 104, § 463-14-050, filed 11/4/76.]

     (2) Contract for an independent consultant study of the application((. An environmental impact statement also will be adopted.

     The council during the deliberative process will)) ;

     (3) Conduct a review under the State Environmental Policy Act;

     (4) Conduct an ((extensive public hearing as an)) adjudicative proceeding for the presentation of evidence on the application((. The council will));

     (5) Conduct one or more sessions for the taking of public testimony concerning the proposed project((. The council will evaluate));

     (6) Consider public comments received ((as part of the environmental review. The council throughout all of the deliberative process will));

     (7) Consider any laws or ordinances, rules or regulations, which may be preempted by certification.

     The council ((in open session)), when fully satisfied that all issues have been adequately ((discussed)) reviewed, will consider and by majority decision will act on the question of approval or rejection of an application.

[Statutory Authority: RCW 80.50.040. 91-03-090, § 463-14-080, filed 1/18/91, effective 2/18/91. Statutory Authority: RCW 80.50.040(1). 81-20-028 (Order 81-4), § 463-14-080, filed 9/30/81.]

[]

     The following section of the Washington Administrative Code is repealed:

WAC 463-14-060

Open meetings with full discussion.

OTS-7116.2

[Order 105, § 463-18-010, filed 11/4/76.]

     (b) The council may modify a meeting's agenda.

[Statutory Authority: RCW 80.50.040. 91-03-090, § 463-18-020, filed 1/18/91, effective 2/18/91; Order 105, § 463-18-020, filed 11/4/76.]

     (a) The chair or a majority of the voting members of the council may call a special meeting ((may be called)) at any time ((by the chair or by a majority of the members of the council)) in accordance with RCW 42.30.080 by delivering written notice personally or by mail ((written notice)) to each council member; and to each local newspaper of general circulation and to each local radio or television station which has on file a written request to be notified of such special meeting((s of)) or of all special meetings. Such notice must be delivered personally or by mail at least twenty-four hours before the time of such meeting as specified in the notice. The call and notice shall specify the time and place of the special meeting and the business to be transacted. Final disposition shall not be taken on any other matter at such meetings. Such written notice may be dispensed with as to any member who at or prior to the time the meeting convenes files with the ((EFSEC)) council manager a written waiver of notice. Such waiver may be given by telegram. Such written notice may also be dispensed with as to any member who is actually present at the meeting at the time it convenes. The notices provided in this section may be dispensed with in the event a special meeting is called to deal with an emergency involving injury or damage to persons or property or the likelihood of such injury or damage, when time requirements of such notice would make notice impractical and increase the likelihood of such injury or damage.

     (b) In addition to the special meeting notice requirements under RCW 42.30.080 described in subsection (4) of this section, the council shall, on or before January of each year, fix the time and place of the special meetings it proposes to hold during the upcoming calendar year and publish a schedule of those meetings in the Washington State Register. The council need not publish in the Register notice of any change from such meeting schedule although it may, in its discretion, elect to do so. In addition to the scheduled special meetings published in the Washington State Register, the council may hold other special meetings without publication in the Register.

     (4) Executive sessions. The chair or a majority of the voting members of the council may call an executive session at any time in accordance with RCW 42.30.110.

[Statutory Authority: RCW 80.50.040(1) and 34.05.250. 98-01-084, § 463-18-050, filed 12/12/97, effective 1/12/98; Order 105, § 463-18-050, filed 11/4/76.]

[]

[]

     The following sections of the Washington Administrative Code are repealed:

WAC 463-18-030	Quorum.
WAC 463-18-040	Delegation of duties.
WAC 463-18-060	Procedure in the absence of the chairman.
WAC 463-18-070	Council duties of acting chairman.
WAC 463-18-080	County, city and port district representatives -- Participation.

OTS-7117.2

[Order 106, § 463-22-010, filed 11/4/76.]

[Order 106, § 463-22-020, filed 11/4/76.]

[Order 106, § 463-22-030, filed 11/4/76.]

[Order 106, § 463-22-050, filed 11/4/76.]

[Order 106, § 463-22-090, filed 11/4/76.]

[]

OTS-7118.2

[Order 109, § 463-26-010, filed 11/16/76.]

[Statutory Authority: RCW 80.50.040(1). 78-09-081 (Order 78-8), § 463-26-020, filed 8/28/78; Order 109, § 463-26-020, filed 11/16/76.]

     (1) The applicant shall make a presentation of the proposed project utilizing appropriate exhibits. The presentation shall include: A general description of the project and the proposed site; reasons why the proposed site or location was selected; and a summary of anticipated environmental, social, and economic impacts.

     (2) The general public shall be afforded an opportunity to present written or oral comments relating to the proposed project. The comments may become part of the adjudicative proceeding record.

     (3) The informational meeting shall be held in the general proximity of the proposed project as soon as practicable within sixty days after receipt of an application for site certification.

[]

[]

[Statutory Authority: RCW 80.50.040(1). 78-09-081 (Order 78-8), § 463-26-050, filed 8/28/78; Order 109, § 463-26-050, filed 11/16/76.]

[Order 109, § 463-26-060, filed 11/16/76.]

[Order 109, § 463-26-090, filed 11/16/76.]

[Order 109, § 463-26-100, filed 11/16/76.]

[Order 109, § 463-26-110, filed 11/16/76.]

     The following sections of the Washington Administrative Code are repealed:

WAC 463-26-040	Adversary nature of hearings.
WAC 463-26-070	Introduction of counsel for the environment.
WAC 463-26-080	Explanation of entire certification process.
WAC 463-26-120	Initial determination subject to review.
WAC 463-26-130	Public information meeting.

OTS-7119.2

[Statutory Authority: RCW 80.50.040(1). 78-07-036 (Order 78-3), § 463-28-010, filed 6/23/78.]

     (1) As a condition necessary to continue processing the application, it shall be the responsibility of the applicant to make the necessary application for change in, or permission under, such land use plans or zoning ordinances, and make all reasonable efforts to resolve the noncompliance.

     (2) All council proceedings on the application for certification may be stayed at the request of the applicant during the period when the plea for resolution of noncompliance is being processed by local authorities.

     (3) The applicant shall submit regular reports to the council regarding the status of negotiations with local authorities on noncompliance issues.

[Statutory Authority: RCW 80.50.040(1). 78-07-036 (Order 78-3), § 463-28-030, filed 6/23/78.]

     The following section of the Washington Administrative Code is repealed:

WAC 463-28-090

Governing rules.

OTS-7120.3

[Statutory Authority: RCW 80.50.040. 90-05-018, § 463-30-010, filed 2/13/90, effective 3/16/90; Order 109, § 463-30-010, filed 11/16/76.]

[Statutory Authority: RCW 80.50.040. 90-05-018, § 463-30-020, filed 2/13/90, effective 3/16/90. Statutory Authority: RCW 80.50.040(1). 82-10-027 (Order 82-2), § 463-30-020, filed 4/30/82; Order 109, § 463-30-020, filed 11/16/76.]

[Statutory Authority: RCW 80.50.040. 90-05-018, § 463-30-050, filed 2/13/90, effective 3/16/90; Order 109, § 463-30-050, filed 11/16/76.]

     (1) The "applicant" as defined in RCW 80.50.020(1).

     (2) Each "member agency" as ((defined)) specified in RCW 80.50.030 (3) through (6).

     (3) The "counsel for the environment" as defined in RCW 80.50.020(12).

     (4) Each person admitted to an adjudicative proceeding as an "intervenor," is a party only for the purposes and subject to any limitations and conditions specified in the council order granting intervention.

[Statutory Authority: RCW 80.50.040. 90-05-018, § 463-30-060, filed 2/13/90, effective 3/16/90; Order 109, § 463-30-060, filed 11/16/76.]

     The time and place of continued hearing sessions may also be set:

     (1) Upon the record without further written notice to the parties; or

     (2) By letter from the ((EFSEC)) council manager; or

     (3) By letter from the presiding officer.

     In such instances, twenty days' prior notice is not required.

[Statutory Authority: RCW 80.50.040(1) and 34.05.250. 98-01-084, § 463-30-080, filed 12/12/97, effective 1/12/98. Statutory Authority: RCW 80.50.040. 90-05-018, § 463-30-080, filed 2/13/90, effective 3/16/90. Statutory Authority: RCW 80.50.040(1). 81-07-019 (Order 81-1), § 463-30-080, filed 3/11/81; Order 109, § 463-30-080, filed 11/16/76.]

[Statutory Authority: RCW 80.50.040. 90-05-018, § 463-30-090, filed 2/13/90, effective 3/16/90; Order 109, § 463-30-090, filed 11/16/76.]

[]

[]

[]

     (a))) Format.

     (a) All pleadings, motions, and other documents (including prefiled testimony) filed with the council shall be legibly written or printed. The use of letter size paper (8 1/2 by 11 inches) is mandatory. The writing or printing shall appear on two sides of the page.

     (b) The requirements of (a) of this subsection are not mandatory for exhibits but the use of exhibits that comply with (a) of this subsection is encouraged if it does not impair legibility.

     (2) Filing.

     (a) In each case, the council will specify the number of copies required for motions, related pleadings, and exhibits which must be filed with the council.

     (b) Document shall be deemed filed only upon actual receipt by the council manager or designee during office hours.

     (c) Faxes.

     (i) As used in this rule, "fax" means electronic telefacsimile transmission.

     (ii) Except as specified in (c)(iii) of this subsection, receipt of a document in the council's fax machine does not constitute filing.

     (iii) For good cause shown, a party may request and the council manager or designee may in his or her sole discretion grant authority to file a document by fax.

     (iv) Filing by fax is perfected when a complete legible copy of the document is reproduced on the council manager's fax machine during the council's normal office hours, so long as the council receives the required number of nonfaxed originals on the next successive business day. If a transmission of a document by fax commences after the council's normal office hours, the document shall be filed on the next successive business day.

     (v) Any document filed by fax must be accompanied by a cover page or other form identifying the party making the transmission, listing the address, telephone, and fax number of the party, identifying the adjudicative proceeding to which the document relates, and indicating the date faxed and total number of pages included in the transmission.

     (vi) The party attempting to file a document by fax bears the risk that the document will not be timely received or legibly printed, regardless of the cause. If a fax is not received in legible form, it will be considered as if it had never been sent.

     (d) E-mail. The filing of documents with the council by electronic mail is not authorized without the express approval of the council manager or designee and under such circumstances as the council manager or designee allows.

     (e) Filing a document with the council does not constitute service upon the office of the attorney general or any other party. Likewise, service on the office of the attorney general does not constitute a filing with the council.

     (f) Applications. Applications for a site certificate shall be filed in the manner prescribed by the rules governing such applications.

     (((b) Other pleadings. All pleadings shall be legible and a copy shall be served upon each party to the proceeding.

     (2))) (3) Service.

     (a) A copy of each pleading, motion, and document filed with the council shall be simultaneously served upon each party.

     (b) Service by parties.

     (i) Service of pleadings, motions, and other documents by parties shall be made by delivering one copy to each party (A) in person, (B) by mail, ((properly addressed with postage prepaid,)) (C) by commercial parcel delivery company ((properly tendered with fees prepaid, or by telefacsimile transmission)) or (D) for documents not exceeding twenty-five pages, if authorized by the council manager or designee, by fax, where originals are mailed simultaneously.

     (ii) Except as otherwise provided, when any party has appeared by attorney or other authorized representative, service upon such attorney or representative will be deemed valid service upon the party ((of all future pleadings before the council)). ((Service of pleadings by mail shall be complete when a true copy of the document is properly addressed and stamped and deposited in the United States mail. Service by commercial parcel delivery company shall be complete when accepted for delivery by the company.

     (b))) (iii) Service of documents shall be deemed complete upon (A) personal delivery, (B) deposit in the United States mail properly addressed with appropriate first-class postage prepaid, (C) acceptance for delivery by a commercial parcel delivery company, properly tendered with fees prepaid, or (D) production by the fax machine of a confirmation of transmission by fax, with simultaneous deposit of the originals in the United States mail, properly addressed with appropriate first-class postage prepaid.

     (c) Service by the council. All notices, ((findings of fact, decisions, and)) orders and other documents required to be served by the council may be served by delivery of one copy to each party (i) in person, (ii) by mail, (iii) by commercial parcel delivery company, ((properly tendered with fees prepaid, or by telefacsimile transmission)) or (iv) by fax, when originals are mailed simultaneously. Service of documents ((shall be complete when a true copy of the document, properly addressed and stamped, is deposited in the United States mail with first class postage affixed, or accepted for delivery by the parcel delivery company)) by the council shall be deemed complete upon (A) personal delivery, (B) deposit in the United States mail properly addressed with appropriate first-class postage prepaid, (C) acceptance for delivery by a commercial parcel delivery company, properly tendered with fees prepaid, or (D) production by the council's fax machine of a confirmation of the transmission by fax, with simultaneous deposit of the originals in the United States mail, properly addressed with appropriate first-class postage prepaid.

     (((c))) (d) Certificate of service. There shall appear on or in a separate document accompanying the original of every pleading when filed with the council in accordance with this subsection, either an acknowledgment of service, or the following certificate:

     "I hereby certify that I have this day served the foregoing document upon all parties of record in this proceeding, by authorized method of service pursuant to WAC 463-30-120 (((2)(a))) (3).

[Statutory Authority: RCW 80.50.040(1) and 34.05.250. 98-01-084, § 463-30-120, filed 12/12/97, effective 1/12/98. Statutory Authority: RCW 80.50.040. 90-05-018, § 463-30-120, filed 2/13/90, effective 3/16/90; Order 109, § 463-30-120, filed 11/16/76.]

     (2) Every subpoena shall identify the party causing issuance of the subpoena and shall state the name of the agency and the title of the proceeding and shall command the person to whom it is directed to attend and give testimony or produce designated books, documents, or things under his or her control at the time and place set for the hearing.

     (3) A subpoena may be served by any suitable person over eighteen years of age, by exhibiting and reading it to the witness, or by giving him or her a copy thereof, or by leaving such copy at the place of his or her abode. When service is made by any other person than an officer authorized to serve process, proof of service shall be made by affidavit.

     (4) The presiding officer, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may:

     (a) Quash or modify the subpoena if it is unreasonable and oppressive; or

     (b) Condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.

     (5) No subpoena shall be issued or given effect to require the attendance and testimony of, or the production of evidence by, any member of the council or any member of the council staff ((in any proceeding before the council)). For these purposes, the council's independent consultant is deemed a member of the council staff.

     (6) The council shall ((only)) be responsible for paying only the witness fees of the witnesses which it subpoenas. Each subpoena shall bear the name of the party requesting or issuing the subpoena and the party responsible for paying the witness fees.

[Statutory Authority: RCW 80.50.040. 90-05-018, § 463-30-200, filed 2/13/90, effective 3/16/90; Order 109, § 463-30-200, filed 11/16/76.]

     (2) Before or after a formal hearing, parties to a proceeding may enter into discussions leading to a voluntary settlement. In furtherance of a voluntary settlement, the council may invite the parties to confer among themselves or with a designated person. Settlement conferences shall be informal and without prejudice to the rights of the parties. No statement, admission, or offer of settlement made at a settlement conference shall be admissible in evidence in any formal hearing before the council. Any resulting settlement or stipulation shall be stated on the record or submitted in writing and is subject to approval by the council.)) A stipulation is an agreement among parties intended to establish one or more operative facts in an adjudicative proceeding. The council encourages parties to enter stipulations of fact. The parties to an adjudicative proceeding before the council may agree to all of the facts or any portion of the facts involved in the proceeding. The parties to a stipulation may file it in writing or enter it orally into the record. A stipulation, if accepted by the council, is binding on the stipulating parties. The parties may present the stipulation as evidence at the hearing. The council may reject the stipulation or require proof of the stipulated facts, despite the parties' agreement to the stipulation.

[Statutory Authority: RCW 80.50.040. 90-05-018, § 463-30-250, filed 2/13/90, effective 3/16/90; Order 109, § 463-30-250, filed 11/16/76.]

     (1) Forms of ADR. Parties may agree to negotiate with other parties at any time without council oversight. The council may direct parties to meet or consult as provided in subsection (2) of this section, or may establish or approve a collaborative process as provided in subsection (3) of this section. The council may assign a mediator or facilitator to assist the parties. The council may also assign an arbitrator whose decision is subject to council review.

     (2) Settlement conference. The council may invite or direct the parties to confer among themselves or with a designated person. Settlement conferences must be informal and without prejudice to the rights of the parties.

     (3) Collaborative.

     (a) Defined; membership. A collaborative is a form of ADR and is a council-sanctioned negotiation in which interested parties work with each other and representatives of council staff to achieve consensus on one or more issues assigned by the council or identified by the collaborative participants. Any interested party whose interests may be substantially affected by the result of the collaborative must be given an opportunity to participate. Collaborative participants must inform the council and seek approval if a collaborative changes its membership or redefines the issues it will address.

     (b) Communication with council. Communication between the council and collaborative participants may be through council staff assigned to serve as a third party neutral in the collaborative, or through the council manager, subject to agreement among the participants to the form and substance of any such communication.

     (4) ADR guidelines. In any ADR process, the following apply unless all participants agree otherwise:

     (a) The parties, as their first joint act, will consider any guidelines or directions by the council, and determine the ground rules governing the negotiations;

     (b) No statement, admission or offer of settlement made during negotiations is admissible in evidence in any formal hearing before the council without the consent of the participants or unless necessary to address the process of the negotiations;

     (c) To the extent permitted by law, parties may agree that information exchanged exclusively within the context of settlement negotiations will be treated as confidential as provided in a council protective order; and

     (d) Participants in a council-sanctioned ADR process must periodically advise any nonparticipating parties and the council of any substantial progress made toward settlement. Participants must immediately advise the council if a council-sanctioned ADR process is without substantial prospects of resolving the issue or issues under negotiation.

[]

     (1) Full settlement. An agreement of all parties that would resolve all issues in a proceeding may be presented as a full settlement for council review.

     (2) Partial settlement. An agreement of all parties on fewer than all issues in a proceeding may be presented as a partial settlement for council review, and remaining matters may be the subject of further council proceedings.

     (3) Multiparty settlement. An agreement of some but not all parties on one or more issues may be offered as their position in the proceeding along with the evidence that they believe supports it.

     (4) Notice to council. Parties must advise the council if they reach a full, partial, or multiparty settlement and may suggest preferred procedural alternatives for review of the settlement, subject to the requirements of WAC 463-30-253 and 463-30-254. The council will determine the appropriate procedure in each proceeding consistent with the requirements of WAC 463-30-253 and 463-30-254.

[]

     (1) Settlement presentation timing. Parties must file a proposed settlement that allows the council sufficient time for the filing, review, and approval of any filing.

     (2) Settlement presentation contents. When filing a proposed settlement agreement, parties must also file supporting documentation sufficient to demonstrate to the council that the proposal is appropriate for adoption.

     (a) Supporting documentation should include supporting evidence; a narrative outlining the scope of the settlement and its principal aspects; a statement explaining in detail why the proposal is appropriate for adoption; a summary of its costs and benefits; and a summary of legal points that bear on the proposed settlement. The documentation may be in the form of a memorandum, supporting prefiled testimony, brief, or other form that serves the same functions.

     (b) Parties must make a brief presentation to the council concerning the proposed settlement and address any legal or factual matters associated with it. Each party to the settlement agreement must offer to present one or more witnesses to testify in support of the proposal and to answer questions. In the case of a contested settlement, parties opposed to the council's adoption of the proposal may offer to present one or more witnesses to testify or argue against the proposal.

[]

[]

     (a) Simplification of issues;

     (b) The necessity or desirability of amendments to the pleadings;

     (c) The possibility of obtaining stipulations, admissions of fact, and admissions of the genuineness of documents which will avoid unnecessary proof;

     (d) Limitations on the number and consolidation of the examination of witnesses;

     (e) Procedural matters;

     (f) Distribution of written testimony and exhibits to the parties prior to the hearing;

     (g) The disposition of petitions for leave to intervene in the proceeding filed pursuant to WAC ((463-30-400)) 463-30-091 may be ruled upon at a prehearing conference;

     (h) Such other matters as may aid in the disposition or settlement of the proceeding including scheduling the hearing and determination of the sequence of the subject matter.

     (2) Prehearing conferences may be held by telephone conference call or at a time and place specified by the ((presiding officer)) council.

     (3) Following the prehearing conference, the presiding officer shall issue an order reciting the action taken at the conference, the amendments allowed to the pleadings, ((and)) the agreements made by the parties concerning all of the matters considered and other matters as appropriate. If no objection to ((such notice)) the order is filed within ten days after the date ((such notice)) the order is mailed, it shall control the subsequent course of the proceeding unless modified for good cause by subsequent order.

     (4) In any proceeding the ((presiding officer)) council may((, at his or her discretion,)) conduct a conference prior to the taking of testimony, or may recess the hearing for such conference, for the purpose of carrying out the purpose of this section. The ((presiding officer)) council shall state on the record the results of such conference.

     (5) Nothing in this section shall be construed to limit the right of the council to order a prehearing conference or other settlement procedure prior to issuance of a notice of hearing.

[Statutory Authority: RCW 80.50.040. 90-05-018, § 463-30-270, filed 2/13/90, effective 3/16/90; Order 109, § 463-30-270, filed 11/16/76.]

     (1) Be correctly captioned to identify the council and name of the proceeding;

     (2) Identify all parties and representatives participating in the proceeding;

     (3) Include a concise statement on the nature and background of the proceeding;

     (4) Contain appropriate numbered findings of fact ((meeting the requirements of RCW 34.05.461));

     (5) Contain appropriate numbered conclusions of law, including citations to statutes and rules relied upon;

     (6) Contain ((an initial or final order)) a recommendation disposing of all contested issues;

     (7) ((If applicable,)) Contain such other information deemed appropriate by the council;

     (8) Contain a statement describing the parties' rights to reconsideration or other administrative relief.

[Statutory Authority: RCW 80.50.040. 90-05-018, § 463-30-320, filed 2/13/90, effective 3/16/90. Statutory Authority: RCW 80.50.040(1). 82-10-027 (Order 82-2), § 463-30-320, filed 4/30/82; Order 109, § 463-30-320, filed 11/16/76.]

     (1) The petition for reconsideration shall be filed with the council within twenty days of the date of service of the recommendation to the governor, unless a different place and time limit for filing the petition are specified in the recommendation to the governor in its statement describing available procedures for administrative relief. Copies of the petition shall be served upon all other parties or their representatives at the time the petition is filed.

     (2) The petition for review shall specify the challenged portions of the recommendation to the governor and shall refer to the evidence of record and legal authority which is relied upon to support the petition.

     (3) Any party may file an answer to a petition for review. The answer shall be filed with the council manager within fourteen days after the date of service of the petition and copies of the answer shall be served upon all other parties or their representatives at the time the answer is filed.

[Statutory Authority: RCW 80.50.040(1) and 34.05.250. 98-01-084, § 463-30-335, filed 12/12/97, effective 1/12/98. Statutory Authority: RCW 80.50.040. 90-05-018, § 463-30-335, filed 2/13/90, effective 3/16/90.]

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     The following sections of the Washington Administrative Code are repealed:

WAC 463-30-030	Use of the term "council."
WAC 463-30-055	Applicant funding of council members salaries and fringe benefits for extended adjudications.
WAC 463-30-280	Attendance by council members at prehearing conferences.
WAC 463-30-330	Petition for review and replies.
WAC 463-30-390	Recommendation -- Transmittal to governor.
WAC 463-30-400	Intervention.
WAC 463-30-410	Participation by intervenor.
WAC 463-30-420	Participation by county, city and port district representatives.

OTS-7121.2

[Statutory Authority: RCW 80.50.040. 90-05-018, § 463-34-010, filed 2/13/90, effective 3/16/90; Order 107, § 463-34-010, filed 11/4/76.]

     (3) Petitions shall be dated and signed by the petitioner or its attorney. The original and two legible copies shall be filed with the council)) include the information required by WAC 82-05-020. In addition, petitioners are encouraged to include the information identified in WAC 82-050-020 (1)(c) and (2).

     (2) Petitions for adoption, repeal, or amendment of a rule must be submitted in accordance with WAC 82-05-030.

[Statutory Authority: RCW 80.50.040. 90-05-018, § 463-34-030, filed 2/13/90, effective 3/16/90; Order 107, § 463-34-030, filed 11/4/76.]

     (2) Each petition for the adoption, amendment, or repeal of a rule shall be considered by the council, and the council may, in its discretion, solicit comments or invite discussion concerning the matter prior to disposition of the petition.

     (((2) If the council denies the petition, the denial shall be in writing and shall be served upon the petitioner.))

[Statutory Authority: RCW 80.50.040. 90-05-018, § 463-34-050, filed 2/13/90, effective 3/16/90; Order 107, § 463-34-050, filed 11/4/76.]

[Statutory Authority: RCW 80.50.040. 90-05-018, § 463-34-060, filed 2/13/90, effective 3/16/90; Order 107, § 463-34-060, filed 11/4/76.]

     (1) At the top of the page, centered, shall appear the wording "before the energy facility site evaluation council." On the left side of the page below the foregoing the following caption shall be set out: "In the matter of the petition of (name of petitioning party) for a declaratory order." Opposite the caption shall appear the words "petition for declaratory order."

     (2) The body of the petition shall be set out in numbered paragraphs:

     (a) The first paragraph shall state the name and address of the petitioning party.

     (b) The second paragraph shall ((state)) identify all statutes, rules, orders, or ((statutes)) other legal requirements that ((may be brought into the)) are at issue ((by the petition)).

     (c) Succeeding paragraphs shall set out the facts relied upon ((and)) by the ((reasons for granting its relief)) petitioner to make the showing required by RCW 34.05.240(1) and to support the petitioner's requested outcome.

     (d) The concluding paragraph shall specify the ((relief)) outcome sought by the petitioner.

     The petition shall be subscribed and verified in the manner prescribed for verification of complaints in the superior courts of this state.

     (3) The original and two legible copies of the petition shall be filed with the council.

[Statutory Authority: RCW 80.50.040. 90-05-018, § 463-34-070, filed 2/13/90, effective 3/16/90; Order 107, § 463-34-070, filed 11/4/76.]

     (2) The council may order that RCW 34.05.410 through 34.05.494 and chapter 463-30 WAC shall apply in a proceeding under this section.

[Statutory Authority: RCW 80.50.040. 90-05-018, § 463-34-080, filed 2/13/90, effective 3/16/90; Order 107, § 463-34-080, filed 11/4/76.]

[Statutory Authority: RCW 80.50.040. 90-05-018, § 463-34-090, filed 2/13/90, effective 3/16/90; Order 107, § 463-34-090, filed 11/4/76.]

OTS-7122.3

[Statutory Authority: RCW 80.50.040(1). 87-24-006 (Order 87-2), § 463-36-030, filed 11/19/87.]

[Statutory Authority: RCW 80.50.040(1). 87-24-006 (Order 87-2), § 463-36-070, filed 11/19/87.]

[Statutory Authority: RCW 80.50.040(1). 87-24-006 (Order 87-2), § 463-36-080, filed 11/19/87.]

     (((2)(a))) (1) A certification holder seeking to transfer or otherwise dispose of a site certification agreement must file a formal application with the council including information about the new owner required by WAC ((463-42-065 and 463-42-075)) 463-60-015 and 463-60-075 that demonstrate the transferee's organizational, financial, managerial, and technical capability to comply with the terms and conditions of the original site certification agreement including council approved plans for termination of the plant and site restoration. The council may place conditions on the transfer of the certification agreement including provisions that reserve liability for the site in the original certification holder.

     (((b))) (2) If the certification holder is seeking an alternative disposition of a certificated site, the certification holder must petition the council for an amendment to its site certification agreement pursuant to the provisions of this chapter and gain council approval of its alternative disposition plan. In submitting a request for an alternative disposition of a certificated site, the certification holder must describe the operational and environmental effects of the alternative use of the site on the certified facility. If the proposed alternative use of the site is inconsistent with the terms and conditions of the original site certification agreement the council may reject the application for alternative use of the site.

     (3) The council shall require any person who submits an application to acquire a site certification agreement under provisions of this section to file a written consent from the current certification holder, or a certified copy of an order or judgment of a court of competent jurisdiction, attesting to the person's right, subject to the provisions of chapter 80.50 RCW et seq. and the rules of this chapter, to possession of the energy facility involved.

     (4) After mailing a notice of the pending application for transfer of the site certification agreement to all persons on its mailing list, the council shall hold an informational hearing on the application. Following the hearing the council may approve an application for transfer of the site certification agreement if the council determines that:

     (a) The applicant satisfies the provisions of WAC ((463-42-065 and 463-42-075)) 463-60-015 and 463-60-075;

     (b) The applicant is entitled to possession of the energy facility described in the certification agreement; and

     (c) The applicant agrees to abide by all of the terms and conditions of the site certification agreement to be transferred and has demonstrated it has the organizational, financial, managerial, and technical capability and is willing and able to comply with the terms and conditions of the certification agreement being transferred.

     (5) The council shall issue a formal order either approving or denying the application for transfer of the site certification agreement. If the council denies the request, it shall state the reasons for its denial.

[Statutory Authority: RCW 80.50.040. 92-23-012, § 463-36-100, filed 11/6/92, effective 12/7/92.]

     The following sections of the Washington Administrative Code are recodified as follows:

Old WAC Number	New WAC Number
463-36-010	463-66-010
463-36-020	463-66-020
463-36-030	463-66-030
463-36-040	463-66-040
463-36-050	463-66-050
463-36-060	463-66-060
463-36-070	463-66-070
463-36-080	463-66-080
463-36-090	463-66-090
463-36-100	463-66-100

REPEALER

     The following section of the Washington Administrative Code is repealed:

WAC 463-36-010

Council policy.

OTS-7123.3

NEW SECTION
WAC 463-38-005   Purpose.   (1) This chapter establishes regulations specifying procedures and other rules which will be utilized by the council in implementing section 402 of the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq.

     (2) The purpose of these regulations is to establish a state individual permit program, applicable to the discharge of pollutants and other wastes and materials to the surface waters of the state, which complies with the requirements of chapters 80.50 and 90.48 RCW, EPA, and applicable state laws and regulations.

     (3) These regulations apply to:

     (a) Any energy facility for which a certification agreement has been executed pursuant to chapter 80.50 RCW et seq.; and

     (b) Any energy facility for which an application has been filed with the council for certification pursuant to chapter 80.50 RCW et seq.

     (4) The authority for these regulations is based upon RCW 80.50.040(1), chapter 90.48 RCW, chapter 155, Laws of 1973, and the act.

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     (1) ((The term)) "Act" means the Federal Water Pollution Control Act (FWPCA) as amended, ((Public Law 92-500)) (33 U.S.C. ((1314)) 1251, et seq.).

     (2) ((The term)) "Administrator" means the administrator of the United States Environmental Protection Agency.

     (3) ((The term "applicable effluent standards and limitations" means all state of Washington and federal effluent standards and limitations to which a discharge is subject under the act, including but not limited to, effluent limitations, standards of performance, toxic effluent standards and prohibitions, and pretreatment standards.

     (4) The term)) "Applicable water quality standards" means all water quality standards of the state of Washington to which a discharge is subject under ((the act and which have been:

     (a) Approved or permitted to remain in effect by the administrator pursuant to section 303(a) or section 303(c) of the act, or,

     (b) Promulgated by the administrator pursuant to section 303(b) or section 303(c) of the act.

     (5) The term)) state and federal law, including, but not limited to, those which are codified in chapters 173-200, 173-201A, and 173-204 WAC, and 40 CFR 131.36.

     (4) "Applicant" shall mean any person who has applied for an NPDES permit pursuant to ((the act and section 402(b) thereof)) this chapter.

     (((6) The term)) (5) "Certification agreement" means that binding site certification agreement executed between an applicant under chapter 80.50 RCW and the state ((which embodies compliance with the siting guidelines adopted in RCW 80.50.050)), and shall contain the conditions set forth in the NPDES permit to be met prior to or concurrent with the construction or operation of any energy facility coming under chapter 80.50 RCW.

     (((7) The term "chairman")) (6) "Chair" means the chairman of the energy facility site evaluation council.

     (7) "Contiguous zone" means the entire zone established or to be established by the United States under Article 24 of the Convention of the Territorial Sea and the Contiguous Zone.

     (8) ((The term)) "Council" means the Washington state energy facility site evaluation council.

     (9) ((The term)) "Council manager" means the individual holding the position of manager of the council.

     (10) "Discharge of pollutant" and the term "discharge of pollutants" each mean:

     (a) Any addition of any pollutant ((to navigable waters)) or combination of pollutants to surface waters of the state from any point source((,));

     (b) Any addition of any pollutant or combination of pollutants to the waters of the contiguous zone or the ocean from any point source.

     (((10) The term "DOE")) (11) "Domestic wastewater" means water carrying human wastes, including kitchen, bath, and laundry wastes from residences, buildings, industrial establishments or other places, together with such ground water infiltration or surface waters as may be present.

     (12) "Domestic wastewater facility" means all structures, equipment, or processes required to collect, carry away, treat, reclaim, or dispose of domestic wastewater together with such industrial waste as may be present. In case of subsurface sewage treatment and disposal, the term is restricted to mean those facilities treating and disposing of domestic wastewater only from a septic tank with subsurface sewage treatment and disposal and an ultimate design capacity exceeding fourteen thousand five hundred gallons per day at any common point.

     (13) "Ecology" means the Washington state department of ecology.

     (((11) The term)) (14) "Effluent limitations" means any restriction established ((pursuant to the act)) by the state of Washington or the administrator on quantities, rates and concentrations of chemical, physical, biological and other constituents which are discharged from point sources into ((navigable)) surface waters, the waters of the ((contiguous zone or the ocean)) state, including schedules of compliance.

     (((12) The term)) (15) "Energy facility" means any energy facility, as defined in RCW 80.50.014.

     (16) "EPA" means the United States Environmental Protection Agency.

     (((13) The term "executive secretary" means the individual holding the position of executive secretary of the council.

     (14) The term)) (17) "General permit" means a permit which covers multiple dischargers within a designated geographical area, in lieu of individual permits being issued to each discharger.

     (18) "Governor" ((shall)) means the governor of the state of Washington.

     (((15) The term "minor discharge" means any discharge which:

     (a) Has a total volume of less than 50,000 gallons on every day of the year,

     (b) Does not affect the waters of any state other than Washington, and,

     (c) Is not identified by the council, the regional administrator or by the administrator in regulations issued pursuant to section 307(a) of the act as a discharge which is not a minor discharge.

     If there is more than one discharge from a facility and the sum of the volumes of all discharges exceeds 50,000 gallons on any one day of the year, then no discharge from the facility is a "minor discharge" as defined herein.

     (16) The term "national data bank" means a facility or system established or to be established by the administrator for the purpose of assembling, organizing and analyzing data pertaining to water quality and the discharge of pollutants.

     (17) The term)) (19) "Municipality" means a city, town, county, district, association, or other public body created by or pursuant to state law and having jurisdiction over disposal of sewage, industrial wastes, or other wastes, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under section 208 of the Federal Water Pollution Control Act (FWPCA).

     (20) "National Pollutant Discharge Elimination System (NPDES)" means the national system for the issuance of permits under section 402 of the act and includes the Washington state program (set forth in chapter 151, Laws of 1973) for participation in said system which has been approved by the administrator in whole pursuant to section 402 of the act.

     (((18) The term)) (21) "New source" means any building, structure, facility or installation from which there is or may be the discharge of pollutants, the construction of which is commenced ((after the publication of proposed regulations prescribing a standard of performance under section 306 of the act, which will be applicable to such source if such standard is thereafter promulgated in accordance with section 306 of the act)):

     (a) After promulgation of standards of performance under section 306 of the act which are applicable to such sources; or

     (b) After proposal of standards of performance in accordance with section 306 of the act which are applicable to such source, but only if the standards are promulgated in accordance with section 306 within one hundred twenty days of their proposal.

     (((19) The term)) (22) "NPDES application" means the uniform national forms for application for a NPDES permit (including subsequent additions, revisions or modifications duly promulgated by the administrator pursuant to the act) as ((adopted)) prescribed by the council for use in the Washington state NPDES program.

     (((20) The term)) (23) "NPDES form" means any issued NPDES permit, ((refuse action application,)) the NPDES application and the NPDES reporting form, and any uniform national form developed for use in the NPDES program as prescribed in regulations promulgated by the administrator.

     (((21) The term)) (24) "NPDES permit" means the permit incorporated in the certification agreement issued by the council which regulates the discharge of pollutants pursuant to section 402 of the act.

     (((22) The term)) (25) "NPDES program" means that program of the state of Washington pursuant to section 402 of the act.

     (((23) The term)) (26) "NPDES reporting form" or "discharge monitoring report" means the uniform national forms (including subsequent additions, revisions or modifications duly promulgated by the administrator pursuant to the act) for reporting data and information pursuant to monitoring and other conditions of NPDES permits.

     (((24) The term "permittee" means any person who has been issued a complete Refuse Act or an NPDES permit.

     (25) The term "pollution" means the man-made or man-induced alteration of the chemical, physical, biological and radiological integrity of water.

     (26) The term "Refuse Act" means section 13 of the River and Harbor Act of March 3, 1899.

     (27) The term "Refuse Act application" means the application for a permit under the Refuse Act.

     (28) The term "Refuse Act permit" means any permit issued under the Refuse Act.

     (29) The term)) (27) "Permit" means an authorization, license, or equivalent control document issued by the council to implement this chapter. "Permit" does not include any permit which has not yet been the subject of final council action, such as a "draft permit" or a "proposed permit."

     (28) "Person" means an individual, corporation, partnership, association, state, municipality, commission, or political subdivision of a state, local, state, or federal government agency, industry, firm, individual or any other entity whatsoever.

     (29) "Point source" means any discernible, confined and discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture or agricultural storm water runoff.

     (30) "Pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. This term does not mean:

     (a) Sewage from vessels within the meaning of section 312 of the act; or

     (b) Water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the state in which the well is located, and if such state determines that such injection or disposal will not result in the degradation of ground or surface water resources.

     (31) "Regional administrator" means the EPA's region X administrator.

     (((30) The term "schedule of compliance" means a schedule of remedial measures, including an enforceable sequence of actions or operations leading to compliance with an effluent limitation, prohibition or standard.

     (31) The term "sewage" means human body waste and the wastes from toilets and other receptacles intended to receive or retain body wastes.

     (32) The term "sewage sludge" means the solids and precipitates separated from waste water by unit processes.

     (33) The term "energy facility" means any energy facility, as defined in RCW 80.50.020(11).

     (34) "Trade secrets" as used in these regulations means information having an alleged commercial importance which, under relevant state law, is protected by reason of a confidential relationship, exclusive, however, of any data or information required by Federal law or regulation to be made publicly available.

     (35) The definitions of the following terms contained in section 502 of the act shall be applicable to such terms as used in these regulations unless the context otherwise requires:

     (a) The term "interstate agency" means an agency of two or more states established by or pursuant to an agreement or compact approved by the congress, or any other agency of two or more states, having substantial powers or duties pertaining to the control of pollution as determined and approved by the administrator.

     (b) The term)) (32) "State" means ((a)) any of the fifty states, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands.

     (((c) The term "municipality" means a city, town, borough, county, parish, district, association, or other public body created by or pursuant to state law and having jurisdiction over disposal of sewage, industrial wastes, or other wastes, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under section 208 of this act.

     (d) The term "person" means an individual, corporation, partnership, association, state, municipality, commission, or political subdivision of a state, or any interstate body.

     (e) The term "pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. This term does not mean:

     (i) Sewage from vessels within the meaning of section 312 of this act; or,

     (ii) Water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the state in which the well is located, and if such state determines that such injection or disposal will not result in the degradation of ground or surface water resources.

     (f) The term "navigable waters" means the waters of the United States, including the territorial seas.

     (g) The term "territorial seas" means the belt of the seas measured from the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters, and extending seaward a distance of three miles.

     (h) The term "contiguous zone" means the entire zone established or to be established by the United States under Article 24 of the Convention of the Territorial Sea and the Contiguous Zone.

     (i) The term "ocean" means any portion of the high seas beyond the contiguous zone.

     (j) The term "toxic pollutant" means those pollutants, or combinations of pollutants, including disease-causing agents, which after the discharge and upon exposure, ingestion, inhalation or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, will, on the basis of information available to the administrator, cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions (including malfunctions in reproduction) or physical deformations, in such organisms or their offspring.

     (k) The term "point source" means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.

     (l) The term "biological monitoring" shall mean the determination of the effects on aquatic life, including accumulation of pollutants in tissue, in receiving waters due to the discharge of pollutants

     (i) By techniques and procedures, including sampling of organisms representative of appropriate levels of the food chain appropriate to the volume and the physical, chemical, and biological characteristics of the effluent, and

     (ii) At appropriate frequencies and locations.

     (m) The term "discharge" when used without qualification includes a discharge of a pollutant, and a discharge of pollutants.)) (33) "Storm water discharge associated with industrial activity" means the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial facility. For energy facilities, the term includes, but is not limited to, storm water discharges from industrial facility yards; immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility; material handling sites; refuse sites; sites used for the application or disposal of process waste waters (as defined in 40 CFR 401); sites used for the storage and maintenance of material handling equipment; sites used for residual treatment, storage, or disposal; shipping and receiving areas; manufacturing buildings; storage areas (including tank farms) for raw materials, and intermediate and final products; and areas where industrial activity has taken place in the past and significant materials remain and are exposed to storm water. For the purposes of this subsection, material handling activities include storage, loading and unloading, transportation, or conveyance of any raw material, intermediate product, final product, by-product or waste product. The term excludes areas located on facility lands separate from the facility's industrial activities, such as office buildings and accompanying parking lots as long as the drainage from the excluded areas is not mixed with storm water drained from the above described areas. The following additional categories of facilities are considered to be engaging in "industrial activity":

     (a) Facilities subject to storm water effluent limitations guidelines, new source performance standards, or toxic pollutant effluent standards under 40 CFR subchapter N;

     (b) Facilities where construction activity includes clearing, grading and excavation, except operations that result in the disturbance of less than five acres of total land area. Construction activity also includes the disturbance of less than five acres of total land area that is a part of a larger common plan of development or sale if the larger common plan will ultimately disturb five acres or more.

     (34) "Surface waters of the state" means all waters defined as "waters of the United States" in 40 CFR 122.2 that are within the boundaries of the state of Washington. This includes lakes, rivers, ponds, streams, inland waters, wetlands, ocean, bays, estuaries, sounds, and inlets.

     (35) In the absence of other definitions as set forth herein, the definitions as set forth in 40 CFR 122.2 and 122.26(b) shall be used.

[Order 114, § 463-38-010, filed 2/4/77. Formerly WAC 463-16-010.]

[]

     (a) A complete ((Refuse Act)) NPDES application ((as previously submitted to the U.S. Corps of Engineers unless such application has been transmitted to the council by the regional administrator; or,)) at the time of submitting an application for site certification to the council pursuant to RCW 80.50.071, for proposals to discharge wastewater or storm water to surface waters of the state. Applicants may seek coverage for storm water discharge associated with construction activity or storm water from areas located on facility lands separate from the facility's industrial activities, such as office buildings and accompanying parking lots, as long as the drainage from the excluded areas is not mixed with storm water drained from the areas described in WAC 463-76-010(33) under a NPDES storm water general permit, promulgated by ecology. Any subsequent determination of such an NPDES application's adequacy shall not affect the council's finding that a complete application pursuant to RCW 80.50.070 has been received.

     (b) A complete NPDES application ((no later than 60 days following receipt by the person identified in WAC 463-38-032 for such energy facility of notice from the council that the previously filed Refuse Act application is so deficient as not to have satisfied the filing requirements; or

     (c) A complete NPDES application at the time of submitting an application to the council pursuant to RCW 80.50.070. Any subsequent determination of such an NPDES application's adequacy shall not affect the council's finding that a complete application pursuant to RCW 80.50.070 has been received.

     (d) A complete NPDES application for any energy facility described in WAC 463-38-020(3) and not covered in paragraph (1)(a), (b) or (c) above. Such NPDES application)) for any energy facility and not covered above shall be filed either:

     (i) No less than ((180)) one hundred eighty days in advance of the day on which it desires to commence the discharge of pollutants((,)); or((,))

     (ii) In sufficient time prior to the commencement of the discharge of pollutants to insure compliance with the requirements of section 306 of the act, ((or with any applicable zoning or siting requirements established pursuant to section 208 (b)2(c) of the act)) and other applicable water quality standards and applicable effluent standards and limitations.

     (2) Each person requesting an NPDES permit from the council shall be required to submit additional information as determined necessary by the council after ((a Refuse Act or)) an NPDES application has been filed and reviewed by the council. Information shall be provided in sufficient detail such as to fulfill the requirements of 40 CFR 122.26(c).

     (3) If ((a Refuse Act or)) an NPDES application is determined to be incomplete or otherwise deficient, the NPDES portion of any application filed pursuant to RCW 80.50.070 shall not be processed until ((such time as)) the applicant has supplied the missing information or otherwise corrected the deficiency.

     (4) The council shall not consider any NPDES application for a energy facility ((included within WAC 463-38-020 (3)(b))) until and unless an application for certification is filed with the council pursuant to RCW 80.50.070.

     (5) Each NPDES application will be submitted on such form as specified by the council.

[Order 114, § 463-38-031, filed 2/4/77. Formerly WAC 463-16-031.]

     (4) In the case of a municipal corporation, state or other public organization, by either a principal executive officer, the ranking elected official or a duly authorized employee.)) (1) Applications. All permit applications shall be signed as follows:

     (a) For a corporation. By a responsible corporate officer. For the purpose of this section, responsible corporate officer means:

     (i) A president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation; or

     (ii) The manager of one or more manufacturing, production, or operating facilities, provided, the manager is authorized to make management decisions which govern the operation of the regulated facility including having the explicit or implicit duty of making major capital investment recommendations, and initiating and directing other comprehensive measures to assure long term environmental compliance with environmental laws and regulations; the manager can ensure that the necessary systems are established or actions taken to gather complete and accurate information for permit application requirements; and where authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures;

     (b) For a partnership or sole proprietorship. By a general partner or the proprietor, respectively; or

     (c) For a municipality, state, federal, or other public agency. By either a principal executive officer or ranking elected official. For purposes of this section, a principal executive officer of a federal agency includes:

     (i) The chief executive officer of the agency; or

     (ii) A senior executive officer having responsibility.

     (2) All reports required by permits, and other information requested by the council shall be signed by a person described in subsection (1) of this section, or by a duly authorized representative of that person. A person is a duly authorized representative only if:

     (a) The authorization is made in writing by a person described in subsection (1) of this section;

     (b) The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity such as the position of facility manager, operator of a well or a well field, superintendent, position of equivalent responsibility, or an individual or position having overall responsibility for environmental matters for the company (a duly authorized representative may thus be either a named individual or any individual occupying a named position); and

     (c) The written authorization is submitted to the council.

     (3) Changes to authorization. If an authorization under subsection (2) of this section is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of subsection (2) of this section must be submitted to the council prior to or together with any reports, information, or applications to be signed by an authorized representative.

     (4) Certification. Any person signing a document under subsection (1) or (2) of this section shall make the following certification:

"I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

[Order 114, § 463-38-032, filed 2/4/77. Formerly WAC 463-16-032.]

     (a) A proposed determination to issue or deny an NPDES permit for the discharge described in the ((Refuse Act or)) NPDES application; and

     (b) If the proposed determination in paragraph 1 of this section is to issue the NPDES permit, the following ((additional tentative determinations shall be made by the council)) shall be included in the tentative determination:

     (i) Proposed effluent limitations, identified pursuant to WAC ((463-38-053)) 463-76-053(1)((, (2);

     (ii) A proposed schedule of compliance including interim dates and requirements for meeting the proposed effluent limitations identified pursuant to WAC 463-38-054)); and

     (((iii))) (ii) A brief description of any other proposed special conditions (other than those required pursuant to WAC ((463-38-055)) 463-76-055) which will have a significant impact upon the discharges described in the NPDES application.

     (2) The council shall organize the tentative determination prepared pursuant to paragraph 1 of this section into a draft NPDES permit.

[Order 114, § 463-38-033, filed 2/4/77. Formerly WAC 463-16-033.]

     (a) The type of facility or activity which is subject of the application;

     (b) A sketch or detailed description of the location of the discharge described in the NPDES application;

     (((b))) (c) A quantitative description of the type of discharge described in the NPDES application which includes at least the following:

     (i) The rate and frequency of the proposed discharge; ((if the discharge is continuous, the)) as average daily flow in gallons per day or million gallons per day and whether the flow is continuous or intermittent;

     (ii) For thermal discharges ((subject to limitation under the act)), the estimated maximum, minimum and average summer and winter temperatures ((in degrees Fahrenheit)); and

     (iii) The average daily discharge in pounds per day, or other appropriate units, of any pollutants which are present in significant quantities or which are subject to limitations or prohibition under this chapter and RCW 90.48.010, 90.54.020 and sections 301, 302, 306 or 307 of the act and regulations published thereunder;

     (((c))) (d) The tentative determinations required under WAC ((463-38-033)) 463-76-033.

     (((d) A brief citation, including a brief identification of the uses for which the waters receiving said discharges have been classified by DOE, of the water quality standards and of the effluent standards and limitations applied to the proposed discharge; and

     (e) A fuller description than that given in the public notice)) (e) The legal and technical grounds for the tentative determination, including an explanation of how conditions meet both the technology-based and water quality-based requirements of the act and chapters 90.48, 90.52, and 90.54 RCW;

     (f) The effluent standards and limitations applied to the proposed discharge;

     (g) The applicable water quality standards, including identification of the uses for which receiving waters have been classified by ecology;

     (h) How the draft permit addresses use or disposal of residual solids generated by wastewater treatment; and

     (i) A description of the procedures to be used by the council in formulating final determinations for an NPDES permit, which shall include, but not be limited to:

     (i) Thirty day comment period required by WAC ((463-38-041)) 463-76-041(2);

     (ii) Procedures for requesting a public hearing and the nature thereof; and

     (iii) Any other procedures by which the public may participate, either directly or through counsel for the environment, in the formulation of the final determinations, including the availability of any environmental assessments or detailed statements of environmental impact and any public hearings which may be held by the council prior to the final determination on the ((Refuse Act or)) NPDES application.

     (2) The name of any person or group will be added to a mailing list upon request for receipt of copies of fact sheets. A fact sheet will be sent to the applicant and each person or group on such mailing list. Each person or group on such mailing list will be sent notice of any subsequent revision of the permit or fact sheet.

[Order 114, § 463-38-034, filed 2/4/77. Formerly WAC 463-16-034.]

     (a) Posting for a period of thirty days in the post office and public places of the municipality nearest the premises of the applicant in which the effluent source is located;

     (b) Posting for a period of thirty days at or near the entrance of the applicant's principal place of business and in nearby places;

     (c) Posting on the council's internet website;

     (d) Publishing in a major local newspaper of general circulation.

     (2) Any persons may, within thirty days following the date of the public notice, submit their written views on the tentative determinations with respect to the NPDES application. All written comments submitted during the ((30)) thirty-day comment period shall be retained by the council and considered in their final determination with respect to the NPDES applications. The period for comments may be extended at the discretion of the council.

     (3) The contents of public notice of application for NPDES permits shall include at least the following:

     (a) Name, address and telephone number of ((agency issuing the public notice)) the council;

     (b) Name and address of applicant;

     (c) Brief description of applicant's activities or operations which result in the discharge described in the NPDES application (e.g., thermal electric power generating facility stationary or floating);

     (d) Name of waterway to which each discharge is made and a short description of the location of each discharge on the waterway, indicating whether such discharge is new, a modification, or an existing discharge;

     (e) A statement of the tentative determination to issue or deny an NPDES permit for the discharge described in the NPDES application;

     (f) A brief description of the procedures for the formulation of final determinations, including the ((30)) thirty-day comment period required by paragraph (2) of this section and any other means set forth in WAC ((463-38-034)) 463-76-034 (1)(((e))) (i).

     (g) Address and telephone number of state or interstate agency premises at which interested persons may obtain further information, request a copy of the draft permit prepared pursuant to WAC ((463-38-033)) 463-76-033(2), request a copy of the fact sheet described in WAC ((463-38-034)) 463-76-034 and inspect and copy NPDES forms and related documents at a reasonable charge.

     (4) The council shall notify the applicant and persons who have submitted written comments or requested notice of the final permit decision. This notification shall include response to comments received and reference to the procedures for contesting the decision.

     (5) Public and agency notice will be given as set forth below:

     (a) ((Notice shall be mailed)) The council shall mail the notice to any person or group carried on the mailing list identified in WAC ((463-38-034)) 463-76-034(2). Upon written request, the name of any person or group shall be added upon written request to a mailing list for distributing copies of notices for all NPDES applications within the state or within a certain geographical area.

     (b) At the time of issuance of public notice pursuant to ((WAC 463-38-041)) this section a fact sheet will be sent to:

     (i) Any other state whose waters may be affected by the issuance of the NPDES permit and to any interstate agency having water quality control authority over waters which may be affected by the issuance of a permit and, upon request, providing such state and interstate agencies with a copy of the NPDES application and a copy of the proposed permit prepared pursuant to WAC ((463-38-033)) 463-76-033(2). Each affected state and interstate agency shall be afforded an opportunity to submit written recommendations to the council and to the regional administrator, which shall be duly considered by the council in accordance with the policies, provisions and regulations of the act, chapter 80.50 RCW et seq., and chapter 34.05 RCW et seq.

     (ii) The district engineer of the Army Corps of Engineers ((for NPDES applications for discharges (other than minor discharges) into navigable waters)), the United States Fish and Wildlife Service, the United States National Oceanic and Atmospheric Administration - Fisheries, the state departments of ecology, fish and wildlife, natural resources, and social and health services, the office of archaeology and historic preservation office, applicable Indian tribes and any other applicable government agency.

     (iii) Any other federal, state or local agency ((or any affected county)), Indian tribe, upon request and shall provide such agencies an opportunity to respond, comment or request a public hearing pursuant to WAC ((463-38-042)) 463-76-042. ((Such agencies shall include at least the following:

     (a) The agency responsible for the preparation of an approved plan pursuant to section 208(b) of the act;

     (b) DOE; and

     (c) Appropriate public health agencies, including those represented on the council.))

[Statutory Authority: RCW 80.50.040. 91-03-090, § 463-38-041, filed 1/18/91, effective 2/18/91; Order 114, § 463-38-041, filed 2/4/77. Formerly WAC 463-16-041.]

     (2) A public hearing shall be held if there is a significant public interest (including the filing of request(s) or petition(s) for such hearing) in holding such a hearing. ((Instances of doubt should be resolved by the council in favor of holding the hearing.))

     (3) Any hearings brought pursuant to this section shall be held in the geographical area of the proposed discharge or other appropriate area, in the discretion of the council, and may, as appropriate, consider related groups of permit applications.

     (4) Any public hearings held hereunder will be conducted in accordance with provisions of RCW 80.50.090, chapter 34.05 RCW et seq., and regulations promulgated thereunder.

     (5) Public notice of any hearing held pursuant to WAC ((463-38-042)) 463-76-042 (1) through (4) shall be circulated at least as widely as was the notice of the NPDES application and shall include at least the following:

     (a) Notice shall be published in at least one major local newspaper of general circulation within the geographical area of the discharge;

     (b) Notice shall be sent to all persons and government agencies which received a copy of the notice or the fact sheet ((for the NPDES application));

     (c) Notice shall be mailed to any person or group upon request; and

     (d) Notice shall be effected pursuant to subparagraphs (a) and (c) of this paragraph at least [thirty] days in advance of the hearing. The council may give notice of a public hearing concurrent with public notice given pursuant to WAC ((463-38-041)) 463-76-041.

     (6) The contents of public notice of any hearing held pursuant to WAC ((463-38-042)) 463-76-042 (1) through (4) shall include at least the following notice which meets the requirements of this section:

     (a) Name, address and phone number of the council;

     (b) Name and address of each applicant whose application will be considered at the hearing;

     (c) Name of waterway to which each discharge is made and short description of the location of each discharge on the waterway;

     (d) A brief reference to the public notice issued for each NPDES application, including identification number and date of issuance (where applicable);

     (e) Information regarding the time and location for the hearing;

     (f) The purpose of the hearing;

     (g) A short and plain statement of the matters asserted;

     (h) Address and phone number of premises at which interested persons may obtain further information, request a copy of each draft NPDES permit prepared pursuant to WAC ((463-38-033)) 463-76-033(2) above, request a copy of each fact sheet prepared pursuant to WAC ((463-38-034)) 463-76-034, and inspect a copy NPDES forms and related documents; and

     (i) A brief description of the nature of the hearing, including the rules and procedures to be followed.

     (7) The council shall cause a record to be made of all hearings required pursuant to this section. The record may be stenographic, mechanical, or electronic.

[Statutory Authority: RCW 80.50.040. 91-03-090, § 463-38-042, filed 1/18/91, effective 2/18/91; Order 114, § 463-38-042, filed 2/4/77. Formerly WAC 463-16-042.]

     (2) Any information (other than effluent data) received by the council and contained in any NPDES forms, or other records, reports or plans shall be protected as confidential upon a showing by any person that such information if made public would divulge methods or processes entitled to protection as trade secrets of such person. ((If, however, the information being considered for confidential treatment is contained in an NPDES form, the council shall forward such information to the regional administrator for his concurrence in any determination of confidentiality. If the regional administrator does not agree that some or all of the information being considered for confidential treatment merits such protection he shall request advice from the office of general counsel stating the reasons for his disagreement with the determination of the council. The regional administrator shall simultaneously provide a copy of such request to the person claiming trade secrecy. The general counsel shall determine whether the information in question would, if revealed, divulge methods or processes entitled to protection as trade secrets. In making such determination, he shall consider any additional information submitted to the office of the general counsel within 30 days of receipt of the request from the regional administrator. If the general counsel determines that the information being considered does not contain trade secrets he shall so advise the regional administrator and shall notify the person claiming trade secrecy of such determination by certified mail. No later than 30 days following the mailing of such notice, the regional administrator shall communicate to the council his decision not to concur in the withholding of such information and the council and the regional administrator shall then make available to the public upon request that information determined not to constitute trade secrets.)) Claims of confidentiality for the following information will be denied:

     (a) The name and address of any permit applicant or permittee;

     (b) Permit applicants, permits, and effluent data;

     (c) Information required by NPDES application forms pursuant to WAC 463-76-031 may not be claimed confidential.

     (3) Any information afforded confidential status ((whether or not contained in an NPDES form)) shall be disclosed upon request to the regional administrator or his authorized representative who shall maintain the disclosed information as confidential.

     (4) The council shall provide facilities for the inspection of nonconfidential information relating to NPDES forms during normal business hours of the council at its headquarters and shall insure that state employees will comply with requests for such inspection as soon as is reasonably possible without undue interference with council business. The ((executive secretary)) council manager shall insure that a machine or device for the copying of papers and documents is available for a reasonable fee as determined by the council.

[Order 114, § 463-38-043, filed 2/4/77. Formerly WAC 463-16-043.]

     (2) The decision to approve or reject, and on what conditions an NPDES permit shall be issued, shall be in conformance with the requirements of this ((section)) chapter. A majority vote of council members ((listed in RCW 80.50.030(3))) shall resolve any dispute and shall determine the approval or rejection of ((a Refuse Act or)) an NPDES application.

[Statutory Authority: RCW 80.50.040(1). 87-01-065 (Order 86-1), § 463-38-051, filed 12/17/86; Order 114, § 463-38-051, filed 2/4/77. Formerly WAC 463-16-051.]

     (2) No NPDES permit may be issued by the council ((shall authorize any person to)):

     (a) ((Discharge)) When the conditions of the permit do not provide for compliance with the applicable requirements of the act, or regulations promulgated under the act;

     (b) When the applicant is required to obtain a state certification under section 401 of the act and 40 CFR 124.53 and that certification has not been obtained or waived;

     (c) When the imposition of conditions cannot ensure compliance with the applicable water quality requirements of Washington state;

     (d) For the discharge of any radiological, chemical or biological warfare agent or high-level radioactive waste into ((navigable)) surface waters of the state;

     (((b))) (e) For the discharge of any pollutants which the secretary of the Army acting through the chief, Corps of Engineers, finds would substantially impair anchorage and navigation in waters subject to the jurisdiction of the Corps of Engineers;

     (((c))) (f) For the discharge of any pollutant to which the regional administrator has objected in writing pursuant to any right to object provided the administrator in section 402(d) of the act;

     (((d))) (g) For discharge from a point source any pollutant which is in conflict with the plan or amendment thereto approved pursuant to section 208(b) of the act;

     (h) For the discharge of any pollutant subject to a toxic pollutant discharge prohibition under section 307 of the act;

     (i) For any discharge to the territorial sea, the waters of the contiguous zone, or the oceans in the following circumstances:

     (i) Before the promulgation of guidelines under section 403(c) of the act, unless the council determines permit issuance to be in the public interest;

     (ii) After promulgation of guidelines under section 403(c) of the act, when insufficient information exists to make a reasonable judgment whether the discharge complies with them;

     (j) To a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to a violation of water quality standards. The owner or operator of a new source or new discharger proposing to discharge into a water segment which does not meet applicable water quality standards or is not expected to meet those standards even after the application of effluent limitations required by sections 301 (b)(1)(A) and 301 (b)(1)(B) of the act, and for which the state has performed a pollutants load allocation for the pollutant to be discharged, must demonstrate, before the close of comment period, that:

     (i) There are sufficient remaining pollutant load allocations to allow for the discharge; and

     (ii) The existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards. The council may waive the submission of information by the new source or new discharger required by (j) of this subsection if the council determines that the council already has adequate information to evaluate the request. An explanation of the development of limitations to meet the criteria of this paragraph is to be included in the fact sheet;

     (k) Discharge any dangerous waste as defined in the Dangerous waste regulations, chapter 173-303 WAC, into a subsurface disposal system such as a well or drainfield.

[Order 114, § 463-38-052, filed 2/4/77. Formerly WAC 463-16-052.]

     (a) ((Effluent limitations under sections 301 and 302 of the act;

     (b) Standards of performance for new sources under section 306 of the act;

     (c) Effluent standards, effluent prohibitions and pretreatment standards under section 307 of the act;

     (d))) All known, available, and reasonable methods of treatment; including effluent limitations established under sections 301, 302, 306, and 307 of the act. The effluent limitations shall not be less stringent than those based upon the treatment facility design efficiency contained in approved engineering plans and reports or approved revisions thereto. The effluent limitations shall reflect any seasonal variation in industrial loading;

     (b) Any more stringent limitation, including those:

     (i) Necessary to meet water quality standards, treatment standards or schedules of compliance established pursuant to any state law or regulation under authority preserved to the state by section 510 of the act; or

     (ii) Necessary to meet any applicable federal law or regulation other than the act or regulations thereunder; or

     (iii) Required to implement any applicable water quality standards; such limitations to include any legally applicable requirements necessary to implement total maximum daily loads established pursuant to section 303(d) and incorporated in the continuing planning process approved under section 303(e) of the act and any regulations and guidelines issued pursuant thereto;

     (((e))) (iv) Prevent or control pollutant discharges from facility site runoff, spillage or leaks, sludge or waste disposal, or materials handling or storage; and

     (v) Meet the permit by rule provisions of the state dangerous waste regulation, WAC 173-303-802 (4) or (5).

     (c) Any more stringent legal applicable requirements necessary to comply with a plan approved pursuant to section 208(d) of the act; and

     (((f))) (d) Prior to promulgation by the administrator of applicable effluent standards and limitations pursuant to sections 301, 302, 306 and 307 of the act, such conditions as the council determines are necessary to carry out the provisions of the act.

     (2) In any case where an issued NPDES permit applies the effluent standards and limitations described in paragraph 1 of this section, the council shall make a finding that any discharge authorized by the permit will not have reasonable potential to violate applicable water quality standards and will have prepared some explicit verification of that ((fact. In any case where an issued NPDES permit applies any more stringent effluent limitation, based upon applicable water quality standards, a waste load allocation shall be prepared to ensure that the discharge authorized by the permit is consistent with applicable water quality standards)) finding.

     (3) In the application of effluent standards and limitations, water quality standards and other legally applicable requirements pursuant to ((paragraphs)) subsections (1) and (2) ((hereof)) of this section, each issued NPDES permit shall specify:

     (a) Average and maximum daily quantitative or other appropriate limitations for the level of pollutants in the authorized discharge. The average and maximum daily quantities must be made by weight except where the parameters are such that other measures are appropriate;

     (b) If a dilution zone is authorized within which water quality standards are modified, the dimensions of such dilution zone.

[Order 114, § 463-38-053, filed 2/4/77. Formerly WAC 463-16-053.]

     (a) Any legally applicable schedule of compliance contained in:

     (i) Applicable effluent standards and limitations;

     (ii) ((If more stringent,)) Water quality standards; or

     (iii) ((If more stringent,)) Legally applicable requirements listed in WAC ((463-38-053 (1)(d)(e))) 463-76-053; or

     (b) In the absence of any legally applicable schedule of compliance, the permittee shall take the required steps in a reasonable period of time, such period to be consistent with the guidelines and requirements of the act.

     (2) In any case where the period of time for compliance specified in paragraph (1)(a) of this section exceed nine months, a schedule of compliance shall be specified in the permit which will set forth interim requirements and the dates for their achievement; however, in no event shall more than nine months elapse between interim dates. If the time necessary for completion of the interim requirement (such as construction of a treatment facility) is more than nine months and is not readily divided into stages of completion, interim dates shall be specified for the submission of reports of progress toward completion of the interim requirement. For each NPDES permit schedule of compliance, interim dates and the final date of compliance shall, to the extent practicable, fall on the last day of the months of March, June, September and December.

     (3) Either before or up to ((14)) fourteen days following each interim date and the final date of compliance, the permittee shall provide the council with written notice of the permittee's compliance or noncompliance with the interim or final requirement.

     (4) If a permittee fails or refuses to comply with an interim or final requirement in a permit, such noncompliance shall constitute a violation of the permit for which the council may modify or revoke the permit or take direct enforcement action.

[Order 114, § 463-38-054, filed 2/4/77. Formerly WAC 463-16-054.]

     (1) All discharges authorized by the NPDES permit shall be consistent with the terms and conditions of the permit; any facility expansions, production increases or process modifications which would result in new or increased discharges of pollutants must be reported to the council by submission of a new NPDES application or supplement thereto or, if such discharge does not violate effluent limitations specified in the NPDES permit, by submission to the council of notice of such new or increased discharges of pollutants; any discharge of any pollutant more frequent than or at a level in excess of that identified and authorized by the NPDES permit shall constitute a violation of the terms and conditions of the NPDES permit;

     (2) The permit may be modified, suspended or revoked in whole or in part during its terms for cause including, but not limited to, the following:

     (a) Violation of any term or condition of the NPDES permit;

     (b) Obtaining an NPDES permit by misrepresentation or failure to disclose fully all relevant facts; ((and))

     (c) A change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge; and

     (d) A determination that the permitted activity endangers human health or the environment, or contributes to water quality standards violations.

     (3) The permittee shall allow the council or its authorized representative upon the presentation of credentials and at reasonable times:

     (a) To enter upon permittee's premises in which an effluent source is located or in which any records are required to be kept under terms and conditions of the NPDES permit;

     (b) To have access to and copy at reasonable cost any records required to be kept under terms and conditions of the NPDES permit;

     (c) To inspect any monitoring equipment or method required in the NPDES permit; or

     (d) To sample any discharge of pollutants.

     (4) The permittee shall at all times maintain a good working order and operate as efficiently as possible any facilities or systems of control installed by the permittee to achieve compliance with the terms and conditions of the NPDES permit.

     (5) If a toxic effluent standard or prohibition (including any schedule of compliance specified in such effluent standard or prohibition) is established under section 307(a) of the act for a toxic pollutant which is present in the permittee's discharge and such standard or prohibition is more stringent than any limitation upon such pollutant in the NPDES permit, the ((council shall revise or modify the NPDES permit in accordance with the toxic effluent standard of prohibition and so notify the)) permittee shall comply with that toxic effluent standard or prohibition even if this permit has not yet been modified to incorporate the requirement.

[Order 114, § 463-38-055, filed 2/4/77. Formerly WAC 463-16-055.]

     (2) The scope and manner of any review of an application for reissuance of an NPDES permit by the council shall be sufficiently detailed as to insure the following:

     (a) That the permittee is in compliance with or has substantially complied with all of the terms, conditions, requirements and schedules of compliance of the expired NPDES permit;

     (b) That the council has up-to-date information on the permittee's production levels, permittee's waste treatment practices, and the nature, content and frequencies of permittee's discharge, either pursuant to the submission of new forms and applications or pursuant to monitoring records and reports ((resubmitted)) submitted to the council by the permittee and;

     (c) That the discharge is consistent with applicable effluent standards and limitations, water quality standards, and other legally applicable requirements listed in WAC ((463-38-053)) 463-76-053 (1) and (2), including any additions to, or revisions or modifications of, such effluent standards and limitations, water quality standards, or other legally applicable requirements during the term of the permit.

     (3) The notice and procedures specified in WAC ((463-38-041 and 463-38-042)) 463-76-041 and 463-76-042 are applicable to each request for reissuance of an NPDES permit.

     (4) ((Notwithstanding any other provision any point source of a discharge having a thermal component the construction of which is commenced after the date of enactment of the Federal Water Pollution Control Act Amendments of 1972 and which is so constructed as to meet all applicable standards of performance shall not be subject to any more stringent standard of performance with respect to the thermal component of its discharge during a ten year period beginning on the date of completion of such construction or during the period of depreciation or amortization of such facility for the purposes of section 167 or 169 (or both) of the Internal Revenue Code of 1954, whichever period ends first.)) When a permittee has made timely and sufficient application for the renewal of a permit, an expiring permit remains in effect and enforceable until the application has been denied or a replacement permit has been issued by the council pursuant to WAC 463-76-0625 - Permit issuance.

[Order 114, § 463-38-061, filed 2/4/77. Formerly WAC 463-16-061.]

     (2) The council may, upon request of a permittee, revise or modify a schedule of compliance in an issued NPDES permit if the council determines good and valid cause exists for such revision and if within ((30)) thirty days following receipt of notice from the council, the regional administrator does not object in writing.

     (3) Any such modifications shall be executed by the council and the permittee in the same manner as the NPDES permit was executed, including full compliance with the requirements of WAC ((463-38-041, 463-38-042 and 463-38-043)) 463-76-041, 463-76-042 and 463-76-043.

[Order 114, § 463-38-062, filed 2/4/77. Formerly WAC 463-16-062.]

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     (a) A copy of the proposed NPDES permit, including any and all terms, conditions, requirements or documents which are a part of the proposed permit or which affect the authorization by the proposed permit of the discharge of pollutants except as to classes, types or sizes within any category of point sources waived in writing by the regional administrator.

     (b) The regional administrator shall be provided a ninety-day period, unless waived in advance, in which to comment upon, make recommendations with respect to, or object in writing to the issuance of the proposed permit pursuant to any right to object provided the administrator in section 402 (d)(2) of the act. No permit shall be issued if the regional administrator objects in writing to the issuance of such permit pursuant to any such right within said period, unless such objection is waived or withdrawn by the regional administrator in writing. Should no such objection be received within said period, it shall be presumed that the administrator has no objection to the issuance of the proposed permit.

     (2) Immediately following execution by the applicant and the state, a copy of every issued NPDES permit ((immediately following execution by the applicant and the state,)) along with any and all terms, conditions, requirements or documents which are a part of such NPDES permit or which will affect the authorization of the discharge of pollutants will be sent to the regional administrator.

[Order 114, § 463-38-064, filed 2/4/77. Formerly WAC 463-16-064.]

     (5) Compliance monitoring. The council ((hereby delegates to the DOE the)) may establish an interagency contract with ecology for compliance monitoring activities of water discharges under a certification agreement which incorporates the NPDES permit. ((As a result of said monitoring activities, DOE shall report to the council any activity by a permittee which in its judgment requires the initiation of appropriate enforcement activities by the council including those in WAC 463-38-055, pursuant to RCW 80.50.150. The council shall then take or initiate action to enforce the terms of any certification agreement and the incorporated NPDES permit. This in no way shall restrict any enforcement by other public agencies and officials under existing law. If DOE determines that immediate action is needed to enforce the act or any statute or regulation derived therefrom, it is delegated the enforcement authority and responsibility to carry out such immediate action as it deems necessary and shall report such actions to the council. Such action shall remain in effect until confirmed or modified by the council.)) Monitoring and/or appropriate enforcement activities by ecology are authorized by WAC 463-70-060(1).

     (6) Enforcement.

     (a) Enforcement activities regarding the NPDES program, including the levying of civil and criminal fines pertaining to all energy facilities where the permit is issued by the council, shall be undertaken by the council, with assistance from ecology, the attorney general, or the prosecuting attorney, as appropriate.

     (b) Pursuant to the provisions of RCW 80.50.150 - Enforcement of compliance penalties, the council shall take or initiate such actions to enforce the terms of any site certification agreement and the incorporated NPDES permit. The council may take any or all of the following actions:

     (i) Assess or sue to recover in court such civil fines, penalties, and other civil relief as may be appropriate for the violation by any person of:

     (A) Any effluent standards and limitations or water quality standards;

     (B) Any permit or term or condition thereof;

     (C) Any filing requirements;

     (D) Any duty to permit or carry out inspection, entry, or monitoring activities; or

     (E) Any rules, regulations, or orders issued by the council.

     (ii) Request the prosecuting attorney to seek criminal sanctions for the violation of any permits or conditions thereof without the necessity of a prior revocation of the permit;

     (iii) Request the prosecuting attorney to seek criminal sanctions for the violation by such persons of:

     (A) Any effluent standards and limitations or water quality standards;

     (B) Any permit or term condition thereof; or

     (C) Any filing requirements.

     (iv) Seek criminal sanctions against any person who knowingly makes any false statement, representation, or certification in any form or any notice or report required by the terms and conditions of any issued permit or knowingly renders inaccurate any monitoring device or method required to be maintained by the council.

     (v) Enter any premises in which an effluent source is located or in which records are required to be kept under terms or conditions of a permit, and otherwise be able to investigate, inspect, or monitor any suspected violations of water quality standards, or effluent standards and limitations, or of permits or terms or conditions thereof.

[Order 114, § 463-38-065, filed 2/4/77. Formerly WAC 463-16-065.]

     (a))) upon receipt by the council((;

     (b) A complete copy, or relevant portions thereof, of any appropriate NPDES form received by the council;)).

     (2) The regional administrator may object in writing to deficiencies in any NPDES application or reporting form ((received by him)) and to ((have)) required such deficiency to be corrected, so long as ((he)) the administrator acts to inform ((by written letter)) the council by letter within twenty days after ((his)) receipt of the NPDES application or reporting form. If the regional administrator's objection relates to an NPDES application, the council will send to the regional administrator ((will be sent)) any information necessary to correct the deficiency. If the regional administrator so requests, the council will not issue the NPDES permit until they receive notice from the regional administrator that the deficiency has been corrected, which notice shall not be withheld for more than ((30)) thirty days.

     (3) For all minor discharges, the council may require the operator of such a discharge to submit NPDES application forms or such other information as may be requested by the regional administrator.

     (4) On the last day of the months of February, May, August, and November, the council shall transmit to the regional administrator a list of all instances in the previous ninety days of failure or refusal of a permittee to comply with an interim or final requirement. Such list shall be available to the public for inspection or copying and shall contain at least the following information on each instance of noncompliance:

     (a) Name and address of each noncomplying permittee;

     (b) A short description of the instance of noncompliance (e.g., failure to submit preliminary plans, delay in commencement of construction of treatment facility, failure to notify the council of compliance with an interim requirement, etc.);

     (c) A short description of any actions or proposed actions by the permittee or the council to comply or enforce compliance with the interim or final requirement; and

     (d) Any details which explain or mitigate an instance of noncompliance with an interim or final requirement.

[Order 114, § 463-38-080, filed 2/4/77. Formerly WAC 463-16-080.]

     (1) For the purposes of this section, the term "member" includes any individual who has or shares authority to approve permit applications or portions thereof, either in the first instance or on appeal.

     (2) For the purpose of this section, the term "permit holders or applicants for a permit" shall not include any department or agency of a state government.

     (3) For the purposes of this section, the term "significant portion of his income" shall mean ten percent of gross personal income for a calendar year, except that it shall mean fifty percent of gross personal income for a calendar year if the recipient is over ((60)) sixty years of age and is receiving such portion pursuant to retirement pension or similar arrangement.

     (4) For the purposes of this section, the term "income" includes retirement benefits, consultant fees and stock dividends.

     (5) For the purposes of this section, income is not received "directly or indirectly from permit holders or applicants for a permit" if it is derived from mutual fund payments or from other diversified investments over which the recipient does not know the identity of the primary source of income.

[Order 114, § 463-38-090, filed 2/4/77. Formerly WAC 463-16-090.]

     The following sections of the Washington Administrative Code are recodified as follows:

Old WAC Number	New WAC Number
463-38-010	463-76-010
463-38-020	463-76-020
463-38-030	463-76-030
463-38-031	463-76-031
463-38-032	463-76-032
463-38-033	463-76-033
463-38-034	463-76-034
463-38-040	463-76-040
463-38-041	463-76-041
463-38-042	463-76-042
463-38-043	463-76-043
463-38-050	463-76-050
463-38-051	463-76-051
463-38-052	463-76-052
463-38-053	463-76-053
463-38-054	463-76-054
463-38-055	463-76-055
463-38-060	463-76-060
463-38-061	463-76-061
463-38-062	463-76-062
463-38-063	463-76-063
463-38-064	463-76-064
463-38-065	463-76-065
463-38-080	463-76-080
463-38-090	463-76-090

REPEALER

     The following sections of the Washington Administrative Code are repealed:

WAC 463-38-020	Scope and purpose.
WAC 463-38-030	NPDES application and tentative determination.
WAC 463-38-040	Notice, hearings and information accessibility.
WAC 463-38-050	NPDES permit contents.
WAC 463-38-060	NPDES permits review and appeal.

OTS-7258.1

NEW SECTION

     The following sections of the Washington Administrative Code are recodified as follows:

Old WAC Number	New WAC Number
463-39-005	463-78-005
463-39-010	463-78-010
463-39-020	463-78-020
463-39-030	463-78-030
463-39-070	463-78-070
463-39-090	463-78-090
463-39-095	463-78-095
463-39-100	463-78-100
463-39-105	463-78-105
463-39-115	463-78-115
463-39-120	463-78-120
463-39-135	463-78-135
463-39-140	463-78-140
463-39-170	463-78-170
463-39-230	463-78-230

OTS-7124.2

AMENDATORY SECTION(Amending Order 82-5, filed 12/22/82)

WAC 463-40-010   Purpose.   The energy facility site evaluation council, under authority ((invested)) vested in it by chapter 80.50 RCW is charged with the responsibility of adopting rules sufficient to ((the protection of)) protect the public and the environment from the effects of dangerous wastes generated at energy facilities subject to chapter 80.50 RCW.

[Statutory Authority: RCW 80.50.040(1). 83-01-127 (Order 82-5), § 463-40-010, filed 12/22/82.]

[Statutory Authority: RCW 80.50.040(1). 83-01-127 (Order 82-5), § 463-40-040, filed 12/22/82.]

     The following sections of the Washington Administrative Code are recodified as follows:

Old WAC Number	New WAC Number
463-40-010	463-74-010
463-40-020	463-74-020
463-40-030	463-74-030
463-40-040	463-74-040

OTS-7125.3

     The application shall provide the council with information regarding the applicant, the proposed project design and features, the natural environment, and the built environment((, and plans for project termination and site restoration)). This information shall be in such detail as determined by the council to enable the council to go forward with its application review.

     The council encourages applicants to consult with appropriate agencies for guidance in gathering sufficient detailed information, and development of comprehensive mitigation plans, for inclusion in their application.

[Statutory Authority: RCW 80.50.040. 92-23-012, § 463-42-010, filed 11/6/92, effective 12/7/92. Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-010, filed 10/8/81; Order 113, § 463-42-010, filed 2/4/77. Formerly chapter 463-12 WAC.]

     (1) To aid in the council's review under SEPA and chapter 463-47 WAC, WAC ((463-42-302)) 463-60-302 through ((463-42-382)) 463-60-372 are similar to the elements required in an environmental impact statement.

     (2) In the case of an application covering a nuclear power plant, the environmental report prepared for the nuclear regulatory commission may be substituted for the comparable sections of the site certification application, provided that the environmental report is supplemented as necessary to comply with this chapter and that an index is included listing these guidelines in order and identifying where each applicable guideline is addressed.

[Statutory Authority: RCW 80.50.040. 92-23-012, § 463-42-012, filed 11/6/92, effective 12/7/92. Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-012, filed 10/8/81. Formerly WAC 463-42-050.]

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     (2) An applicant shall also provide the council copies of its application in a digital format for use in personal computers. Digital format shall be determined by the council in consultation with its staff, consultants and the applicant.

     (3) At the time of submittal of the application, the applicant shall submit one copy of the applicable land use plans and zoning ordinances for the project site.

[Statutory Authority: RCW 80.50.040(1). 92-09-013, § 463-42-055, filed 4/2/92, effective 5/3/92. Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-055, filed 10/8/81. Formerly WAC 463-42-040.]

[Statutory Authority: RCW 80.50.040(1). 87-05-017 (Order 87-1), § 463-42-075, filed 2/11/87. Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-075, filed 10/8/81.]

     (2) Fair treatment. The application shall describe how the proposal's design and mitigation measures ensure that no group of people, including any racial, ethnic, or socioeconomic group, bear a disproportionate share of the environmental or socioeconomic impacts resulting from the construction and operation of the proposed facility.

[Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-085, filed 10/8/81.]

     (2) Meaningful involvement. The application shall describe all efforts made by the applicant to involve the public, regardless of race, ethnicity, or socioeconomic status, prior to submittal of the application to the council. The application shall also set forth information for contacting local interest and community groups to allow for meaningful involvement of all people, regardless of race, ethnicity or socioeconomic status. For example, such information may include contacts with local minority radio stations and news publications.

[]

[Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-105, filed 10/8/81. Formerly WAC 463-42-110.]

     (2) Amendments to a pending application must be presented to the council at least thirty days prior to the commencement of the adjudicative hearing, except as noted in subsection (3) of this section.

     (3) Within thirty days after the conclusion of the hearings, the applicant shall submit to the council, application amendments which include all commitments and stipulations made by the applicant during the adjudicative hearings.

     (4) After the start of adjudicative hearings, additional environmental studies or other reports shall be admitted only for good cause shown after petitions to the council or upon request of the council, or submitted as a portion of prefiled testimony for a witness at least thirty days prior to appearance.

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     (a) The environmental impact of the proposed energy facility;

     (b) The area potentially affected;

     (c) The cost and magnitude of the proposed energy facility; and

     (d) The degree to which the proposed energy facility represents a change in use of the proposed site.

     (2) Contents. Applications for expediting processing submitted to the council in accordance with the requirements of chapter 463-43 WAC must address all sections of chapters 463-60 and 463-62 WAC.

     (3) Fees. The applicant shall submit those fees and costs for independent consultant review and application processing pursuant to RCW 80.50.071 (1)(a) and (b) and chapter 463-58 WAC with the understanding that any unexpended portions shall be returned to the applicant at the completion of application processing.

[]

     (2) ((Ancillary)) Associated and transmission facilities((:)). For those facilities described in RCW 80.50.020 (6) and (7) the application shall contain the legal metes and bounds description of the preferred centerline of the corridor necessary to construct and operate the facility contained therein, the width of the corridor, or variations in width between survey stations if appropriate, and shall identify the applicant's and others' ownership interests in lands over which the preferred centerline is described and of those lands lying equidistant for 1/4 mile either side of such center line.

[Statutory Authority: RCW 80.50.040(1). 83-01-128 (Order 82-6), § 463-42-135, filed 12/22/82. Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-135, filed 10/8/81. Formerly WAC 463-42-190.]

[Statutory Authority: RCW 80.50.040(1). 83-01-128 (Order 82-6), § 463-42-155, filed 12/22/82. Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-155, filed 10/8/81. Formerly WAC 463-42-240.]

     (d) Mitigation. The application shall contain a description of mitigation proposed for water supply, and shall include any and all mitigation required by the department of ecology pursuant to the review of water rights or certificates, or changes to water rights or certificates required in (c) of this subsection.

[Statutory Authority: RCW 80.50.040(1). 92-09-013, § 463-42-165, filed 4/2/92, effective 5/3/92. Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-165, filed 10/8/81. Formerly WAC 463-42-400.]

[Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-175, filed 10/8/81. Formerly WAC 463-42-430.]

     (h) Where a discharge is proposed to a publicly owned treatment works, in addition to the items provided in subsections (1) and (2) of this section, the applicant shall provide an engineering analysis showing that the proposed discharge will not cause the waste treatment facility to exceed capacities or to violate its authorized discharge limits, including both the quality of the discharge and the volume of the discharge, or to violate the permits governing its operation.

[Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-185, filed 10/8/81. Formerly WAC 463-42-440.]

     (2) Where wastewater control involves collection and retention for recycling and/or resource recovery, the applicant shall show in detail the methods selected, including at least the following information:

     (a) Waste source(s)((,));

     (b) Average and maximum daily amounts and composition of wastes((,));

     (c) The type of storage vessel and the storage capacity and duration((,)); and

     (d) Any bypass or overflow facilities to the wastewater treatment system(s) or the receiving waters.

     (3) Where wastewaters are discharged into receiving waters, the applicant shall provide a detailed description of the proposed treatment system(s), including:

     (a) Appropriate flow diagrams and tables showing the sources of all tributary waste streams((,)):

     (b) Their average and maximum daily amounts and composition((,));

     (c) Individual treatment units and their design criteria((,));

     (d) Major piping (including all bypasses)((,)); and

     (e) Average and maximum daily amounts and composition of effluent(s).

[Statutory Authority: RCW 80.50.040(1). 92-09-013, § 463-42-195, filed 4/2/92, effective 5/3/92. Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-195, filed 10/8/81. Formerly WAC 463-42-470.]

[Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-205, filed 10/8/81. Formerly WAC 463-42-420.]

[Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-215, filed 10/8/81. Formerly WAC 463-42-330.]

     (3) The applicant shall demonstrate that the highest and best practicable treatment for control of emissions will be utilized in facility construction and operation.

     (4) The application shall identify all state and federal air emission permits that would be required after approval of the site certification agreement by the governor, and the timeline for submittal of the appropriate applications for such permits.

     (5) In the case of fossil-fuel ((power)) fired energy plants, ((petroleum refineries, and transmission and associated facilities, the applicant should deal with products containing sulphur, NO_x, volatile organics, CO, CO₂, aldehydes, particulates, and any other emissions subject to regulation by local, state, or federal agencies)) the application shall describe and quantify all emissions of greenhouse gases.

     (6) In the case of a nuclear-fueled plant, the applicant ((should deal with)) shall address optional plant designs as these may relate to gaseous emissions.

[Statutory Authority: RCW 80.50.040(1). 92-09-013, § 463-42-225, filed 4/2/92, effective 5/3/92. Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-225, filed 10/8/81. Formerly WAC 463-42-520.]

[Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-235, filed 10/8/81.]

[Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-245, filed 10/8/81.]

[Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-255, filed 10/8/81.]

[Statutory Authority: RCW 80.50.040(1). 92-09-013, § 463-42-265, filed 4/2/92, effective 5/3/92. Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-265, filed 10/8/81. Formerly WAC 463-42-290.]

[Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-275, filed 10/8/81. Formerly WAC 463-42-300.]

[Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-285, filed 10/8/81. Formerly WAC 463-42-130.]

[Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-295, filed 10/8/81. Formerly WAC 463-42-140.]

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     (2) Inadvertent failure by the applicant to discover and list a pertinent requirement shall not invalidate the application, but may delay the council's processing of the application.

[]

     (((1))) (a) Geology((-)). The ((applicant)) application shall include the results of a comprehensive geologic survey showing conditions at the site, the nature of foundation materials, and potential seismic activities.

     (((2))) (b) Soils((-)). The ((applicant)) application shall describe all procedures to be utilized to minimize erosion and other adverse consequences during the removal of vegetation, excavation of borrow pits, foundations and trenches, disposal of surplus materials, and construction of earth fills. The location of such activities shall be described and the quantities of material shall be indicated.

     (((3))) (c) Topography((-)). The ((applicant)) application shall include contour maps showing the original topography and any changes likely to occur as a result of energy facility construction and related activities. Contour maps showing proposed shoreline or channel changes shall also be furnished.

     (((4))) (d) Unique physical features((-)). The ((applicant)) application shall list any unusual or unique geologic or physical features in the project area or areas potentially affected by the project.

     (((5))) (e) Erosion/enlargement of land area (accretion) ((-)). The ((applicant)) application shall identify any potential for erosion, deposition, or change of any land surface, shoreline, beach, or submarine area due to construction activities, placement of permanent or temporary structures, or changes in drainage resulting from construction or placement of facilities associated with construction or operation of the proposed energy project.

     (2) The application shall show that the proposed energy facility will comply with the state building code provisions for seismic hazards applicable at the proposed location.

[Statutory Authority: RCW 80.50.040. 92-23-012, § 463-42-302, filed 11/6/92, effective 12/7/92.]

     (1) Air quality((-)). The ((applicant)) application shall identify all pertinent air pollution control standards. The application shall contain adequate data showing air quality and meteorological conditions at the site. Meteorological data shall include, at least, adequate information about wind direction patterns, air stability, wind velocity patterns, precipitation, humidity, and temperature. The applicant shall describe the means to be utilized to assure compliance with applicable local, state, and federal air quality and emission standards.

     (2) Odor((-)). The ((applicant)) application shall describe for the area affected((,)) all odors caused by construction or operation of the facility, and shall describe how these are to be minimized or eliminated.

     (3) Climate((-)). The ((applicant)) application shall describe the extent to which facility operations may cause visible plumes, fogging, misting, icing, or impairment of visibility, and changes in ambient levels caused by all emitted pollutants.

     (4) Dust((-)). The ((applicant)) application shall describe for any area affected((,)) all dust sources created by construction or operation of the facility, and shall describe how these are to be minimized or eliminated.

[Statutory Authority: RCW 80.50.040. 92-23-012, § 463-42-312, filed 11/6/92, effective 12/7/92.]

     (1))) (2) Surface water movement/quality/quantity((-)). The application shall set forth all background water quality data pertinent to the site, and hydrographic study data and analysis of the receiving waters within one-half mile of any proposed discharge location with regard to: Bottom configuration; minimum, average, and maximum water depths and velocities; water temperature and salinity profiles; anticipated effluent distribution ((and)), dilution, and plume characteristics under all discharge conditions; and other relevant characteristics which could influence the impact of any wastes discharged thereto.

     (((2))) (3) Runoff/absorption((-)). The ((applicant)) application shall describe how surface water runoff and erosion are to be controlled during construction and operation, how runoff can be reintroduced to the ground for ((retention)) return to the ground water supply, and to assure compliance with state water quality standards.

     (((3))) (4) Floods((-)). The ((applicant)) application shall describe potential for flooding, identify the five, fifty, and one hundred((, and five hundred)) year flood boundaries, and describe possible flood impacts at the site, as well as possible flood-related impacts both upstream and downstream of the proposed facility as a result of construction and operation of the facility and all protective measures to prevent possible flood damage to the site and facility.

     (((4))) (5) Ground water movement/quantity/quality((-)). The ((applicant)) application shall ((include the results of a comprehensive hydrologic survey,)) describe the existing ground water ((conditions)) movement, quality, and quantity on and near the site, and in the vicinity of any points of water withdrawal associated with water supply to the project. The application shall describe any changes in surface and ground water movement, quantity, ((or)) quality or supply uses which might result from project construction or operation and from ground water withdrawals associated with water supply for the project, and shall provide mitigation for adverse impacts that have been identified.

     (((5))) (6) Public water supplies((-)). The ((applicant)) application shall provide a detailed description of any public water supplies which may be used or affected by the project during construction or operation of the facility.

[Statutory Authority: RCW 80.50.040. 92-23-012, § 463-42-322, filed 11/6/92, effective 12/7/92.]

     (3) Fish or wildlife migration routes - The applicant shall identify all fish or wildlife migration routes which may be affected by the energy facility or by any discharge to the environment.)) The application shall describe all existing habitat types, vegetation, wetlands, fish, wildlife, and in-stream flows on and near the project site which might reasonably be affected by construction, operation, decommissioning, or abandonment of the energy facility and any associated facilities. For purposes of this section, the term "project site" refers to the site for which site certification is being requested, and the location of any associated facilities or their right of way corridors, if applicable. The application shall contain the following information:

     (1) Assessment of existing habitats and their use. The application shall include a habitat assessment report prepared by a qualified professional. The report shall contain, but not be limited to, the following information:

     (a) A detailed description of habitats and species present on and adjacent to the project site, including identification of habitats and species present, relative cover, density, distribution, and health and vigor;

     (b) Identification of any species of local importance, priority species, or endangered, threatened, or candidate species that have a primary association with habitat on or adjacent to the project site;

     (c) A discussion of any federal, state, or local special management recommendations, including department of fish and wildlife habitat management recommendations, that have been developed for species or habitats located on or adjacent to the project area;

     (2) Identification of energy facility impacts. The application shall include a detailed discussion of temporary, permanent, direct and indirect impacts on habitat, species present and their use of the habitat during construction, operation and decommissioning of the energy facility. Impacts shall be quantified in terms of habitat acreage affected, and numbers of individuals affected, threatened or removed. The discussion of impacts shall also include:

     (a) Impacts to water quality, stream hydrology and in-stream flows;

     (b) Impacts due to introduction, spread, and establishment of noxious or nonnative species;

     (c) Impacts and changes to species communities adjacent to the project site;

     (d) Impacts to fish and wildlife migration routes;

     (e) Impacts to any species of local importance, priority species, or endangered, threatened, or candidate species;

     (f) Impacts due to any activities that may otherwise confuse, deter, disrupt or threaten fish or wildlife;

     (g) An assessment of risk of collision of avian species with any project structures, during day and night, migration periods, and inclement weather;

     (h) An assessment for the potential of impacts of hazardous or toxic materials spills on habitats and wildlife.

     (3) Mitigation plan. The application shall include a detailed discussion of mitigation measures, including avoidance, minimization of impacts, and mitigation through compensation or preservation and restoration of existing habitats and species, proposed to compensate for the impacts that have been identified. The mitigation plan shall also:

     (a) Be based on sound science;

     (b) Address all best management practices to be employed and setbacks to be established;

     (c) Address how cumulative impacts associated with the energy facility will be avoided or minimized;

     (d) Demonstrate how the mitigation measures will achieve equivalent or greater habitat quality, value and function for those habitats being impacted, as well as for habitats being enhanced, created or protected through mitigation actions;

     (e) Identify and quantify level of compensation for impacts to, or losses of, existing species due to project impacts and mitigation measures, including benefits that would occur to existing and new species due to implementation of the mitigation measures;

     (f) Address how mitigation measures considered have taken into consideration the probability of success of full and adequate implementation of the mitigation plan;

     (g) Identify future use of any manmade ponds or structures created through construction and operation of the facility or associated mitigation measures, and associated beneficial or detrimental impacts to habitats, fish and wildlife;

     (h) Discuss the schedule for implementation of the mitigation plan, prior to, during, and post construction and operation;

     (i) Discuss ongoing management practices that will protect habitat and species, including proposed monitoring and maintenance programs;

     (j) Mitigation plans should give priority to proven mitigation methods. Experimental mitigation techniques and mitigation banking may be considered by the council on a case-by-case basis. Proposals for experimental mitigation techniques and mitigation banking must be supported with analyses demonstrating that compensation will meet or exceed requirements giving consideration to the uncertainty of experimental techniques, and that banking credits meet all applicable state requirements.

     (4) Guidelines review. The application shall give due consideration to any project-type specific guidelines established by state and federal agencies for assessment of existing habitat, assessment of impacts, and development of mitigation plans. The application shall describe how such guidelines are satisfied. For example, wind generation proposals shall consider Washington state department of fish and wildlife Wind Power Guidelines, August 2003, or as hereafter amended. Other types of energy facilities shall consider department of fish and wildlife Policy M-5002, dated January 18, 1999, or as hereafter amended.

     (5) Federal approvals. The application shall list any federal approvals required for habitat, vegetation, fish and wildlife impacts and mitigation, status of such approvals, and federal agency contacts responsible for review.

[Statutory Authority: RCW 80.50.040. 92-23-012, § 463-42-332, filed 11/6/92, effective 12/7/92.]

     (1) Assessment of existing wetlands present and their quality. The assessment of the presence and quality of existing wetlands shall include:

     (a) A wetland delineation performed by a qualified professional according to the Washington State Wetlands Delineation and Identification Manual, 1997, and associated data sheets, site maps with data plots and delineated wetlands areas, photographs, and topographic and aerial site maps.

     (b) A description of wetland categories found on the site according to the Washington state wetland rating system found in Western Washington, Ecology Publication #93-74 and Eastern Washington, Ecology Publication 391-58, or as revised by the department of ecology.

     (c) A discussion of water sources supplying wetlands and documentation of hydrologic regime encountered.

     (d) A function assessment report prepared according to the Washington State Wetland Function Assessment Method to assess wetlands functions for those wetland types covered by the method, and including a description of type and degree of wetland functions that are provided.

     (2) Identification of energy facility impacts. The application shall include a detailed discussion of temporary, permanent, direct and indirect impacts on wetlands, their functions and values, and associated water quality and hydrologic regime during construction, operation and decommissioning of the energy facility. The discussion of impacts shall also include impacts to wetlands due to proposed mitigation measures.

     (3) Wetlands mitigation plan. The application shall include a detailed discussion of mitigation measures, including avoidance, minimization of impacts, and mitigation through compensation or preservation and restoration of existing wetlands, proposed to compensate for the direct and indirect impacts that have been identified. The mitigation plan shall be prepared consistent with the Department of Ecology Guidelines for Developing Freshwater Wetlands Mitigation Plans and Proposals, 1994, as revised. The application shall also include, but not be limited to:

     (a) A discussion of how standard buffer widths have been incorporated into the mitigation proposal. Variances from standard buffer widths must be supported with professional analyses demonstrating that smaller or averaged buffer widths protect the wetland functions and values based on site-specific characteristics;

     (b) A demonstration of how enhancement, restoration or compensatory mitigation actions will achieve equivalent or greater hydrologic and biological functions at the impact site, and whether any existing wetland functions would be reduced by the mitigation measures;

     (c) A discussion of how standard mitigation ratios have been incorporated into the mitigation proposal. Variances from standard mitigation ratios must be supported with professional analyses demonstrating that equivalent or greater hydrologic and biological functions will be achieved;

     (d) A demonstration that the mitigation actions are being conducted in an appropriate location, and that consideration was given in order of preference to: On-site opportunities; opportunities within the same subbasin or watershed assessment unit; opportunities within the same Water Resources Inventory Area (WRIA); opportunities in another WRIA;

     (e) A discussion of the timing and schedule for implementation of the mitigation plan;

     (f) A discussion of ongoing management practices that will protect wetlands, including proposed monitoring and maintenance programs;

     (g) Mitigation plans should give priority to proven mitigation methods. Experimental mitigation techniques and mitigation banking may be considered by the council on a case-by-case basis. Proposals for experimental mitigation techniques and mitigation banking must be supported with analyses demonstrating that compensation will meet or exceed requirements giving consideration to the uncertainty of experimental techniques, and that banking credits meet all applicable state requirements.

     (4) Federal approvals. The application shall list any federal approvals required for wetlands impacts and mitigation, status of such approvals, and federal agency contacts responsible for review.

[]

     (2) Source/availability((-)). The ((applicant)) application shall describe the sources of supply, locations of use, types, amounts, and availability of energy or resources to be used or consumed during construction and operation of the facility.

     (3) Nonrenewable resources((-)). The ((applicant)) application shall describe all nonrenewable resources that will be used, made inaccessible or unusable by construction and operation of the facility.

     (4) Conservation and renewable resources((-)). The ((applicant)) application shall describe conservation measures and/or renewable resources which will or could be used during construction and operation of the facility.

     (5) Scenic resources((-)). The ((applicant)) application shall describe any scenic resources which may be affected by the facility or discharges from the facility.

[Statutory Authority: RCW 80.50.040. 92-23-012, § 463-42-342, filed 11/6/92, effective 12/7/92.]

     (a) Describe and quantify the background noise environment that would be affected by the energy facility. The number of locations used for assessment of the existing noise environment shall be commensurate with the type of energy facility being proposed, the impacts expected, and the presence of high density receptor locations in the vicinity of the proposed site.

     (b) Identify and quantify the impact of noise emissions resulting from construction and operation ((and shall describe the measures to be taken in order to eliminate or lessen this impact)) of the energy facility, using appropriate state-of-the-art modeling techniques, and including impacts resulting from low frequency noise;

     (c) Identify local, state, and federal environmental noise impact guidelines;

     (d) Describe the mitigation measures to be implemented to satisfy WAC 463-62-030;

     (e) Describe the means the applicant proposes to employ to assure continued compliance with WAC 463-62-030.

     (2) Risk of fire or explosion((-)). The ((applicant)) application shall describe any potential for fire or explosion during construction, operation, standby or nonuse, dismantling, or restoration of the facility and what measures will be made to mitigate any risk of fire or explosion.

     (3) Releases or potential releases to the environment affecting public health, such as toxic or hazardous materials((-)). The ((applicant)) application shall describe any potential for release of toxic or hazardous materials to the environment and shall identify plans for complying with the federal Resource Conservation and Recovery Act and the state Dangerous waste regulations (chapter 173-303 WAC). The ((applicant)) application shall describe the treatment or disposition of all solid or semisolid construction and operation wastes including spent fuel, ash, sludge, and bottoms, and show compliance with applicable state and local solid waste regulations.

     (4) Safety standards compliance((-)). The ((applicant)) application shall identify all federal, state, and local health and safety standards which would normally be applicable to the construction and operation of a project of this nature and shall describe methods of compliance therewith.

     (5) Radiation levels((-)). For facilities which propose to release any radioactive materials, the ((applicant)) application shall set forth information relating to radioactivity. Such information shall include background radiation levels of appropriate receptor media pertinent to the site. The ((applicant)) application shall also describe the proposed radioactive waste treatment process, the anticipated release of radionuclides, their expected distribution and retention in the environment, the pathways which may become sources of radiation exposure, and projected resulting radiation doses to human populations. Other sources of radiation which may be associated with the project shall be described in all applications.

     (6) Emergency plans. The application shall describe emergency plans which will be required to assure the public safety and environmental protection on and off the site in the event of a natural disaster or other major incident relating to or affecting the project as well as identifying the specific responsibilities that will be assumed by the applicant.

[Statutory Authority: RCW 80.50.040. 92-23-012, § 463-42-352, filed 11/6/92, effective 12/7/92.]

     (2) Housing - The applicant shall describe potential impact on housing needs, costs, or availability due to influx of workers for construction and/or operation of the facility)) applicable to the project site.

     (((3))) (2) Light and glare((-)). The ((applicant)) application shall describe the impact of light((s)) and glare from construction and operation and shall describe the measures to be taken in order to eliminate or lessen this impact.

     (((4))) (3) Aesthetics((-)). The ((applicant)) application shall describe the aesthetic impact of the proposed energy facility and associated facilities and any alteration of surrounding terrain. The presentation will show the location and design of the facilities relative to the physical features of the site in a way that will show how the installation will appear relative to its surroundings. The applicant shall describe the procedures to be utilized to restore or enhance the landscape disturbed during construction (to include temporary roads).

     (((5))) (4) Recreation((-)). The ((applicant)) application shall list all recreational sites within the area affected by construction and operation of the facility and shall then describe how each will be impacted by construction and operation.

     (((6))) (5) Historic and cultural preservation((-)). The ((applicant)) application shall coordinate with and provide a list of all historical and archaeological sites within the area affected by construction and operation of the facility ((and)) to the Washington state office of archaeology and historic preservation and interested tribe(s). The application shall ((then)):

     (a) Provide evidence of this coordination;

     (b) Describe how each site will be impacted by construction and operation; and

     (c) Identify what mitigation will be required.

     (((7))) (6) Agricultural crops/animals((-)). The ((applicant)) application shall identify all agricultural crops and animals which could be affected by construction and/or operation of the facility and any operations, discharges, or wastes which could impact the adjoining agricultural community.

[Statutory Authority: RCW 80.50.040. 92-23-012, § 463-42-362, filed 11/6/92, effective 12/7/92.]

     (a) Expected traffic volumes during construction, based on where the work force is expected to reside;

     (b) Access routes for moving heavy loads, construction materials, or equipment;

     (c) Expected traffic volumes during normal operation of the facility;

     (d) For transmission facilities, anticipated maintenance access; and

     (e) Consistency with local comprehensive transportation plans.

     (2) Vehicular traffic((-)). The ((applicant)) application shall describe existing roads, estimate volume, types, and routes of vehicular traffic which will arise from construction and operation of the facility. The applicant shall indicate the applicable standards to be utilized in improving existing roads and in constructing new permanent or temporary roads or access, and shall indicate the final disposition of new roads or access and identify who will maintain them.

     (3) Waterborne, rail, and air traffic((-)). The ((applicant)) application shall describe existing railroads and other transportation facilities and indicate what additional access, if any, will be needed during planned construction and operation. The applicant shall indicate the applicable standards to be utilized in improving existing transportation facilities and in constructing new permanent or temporary access facilities, and shall indicate the final disposition of new access facilities and identify who will maintain them.

     (4) Parking((-)). The ((applicant)) application shall identify existing and any additional parking areas or facilities which will be needed during construction and operation of the energy facility, and plans for maintenance and runoff control from the parking areas or facilities.

     (5) Movement/circulation of people or goods((-)). The ((applicant)) application shall describe any change to the current movement or circulation of people or goods caused by construction or operation of the facility. The ((applicant)) application shall indicate consideration of multipurpose utilization of rights of way and describe the measures to be employed to utilize, restore, or rehabilitate disturbed areas. The ((applicant)) application shall describe the means proposed to ensure safe utilization of those areas under applicant's control ((on or in which)) where public access will be granted during project construction, operation, abandonment, termination, or when operations cease.

     (6) Traffic hazards((-)). The ((applicant)) application shall identify all hazards to traffic caused by construction or operation of the facility. Except where security restrictions are imposed by the federal government the applicant shall indicate the manner in which fuels and waste products are to be transported to and from the facility, including a designation of the specific routes to be utilized.

[Statutory Authority: RCW 80.50.040. 92-23-012, § 463-42-372, filed 11/6/92, effective 12/7/92.]

     (6) To the degree that a project will have a primary or secondary negative impact on any element of the socioeconomic environment, the applicant is encouraged to work with local governments to avoid, minimize, or compensate for the negative impact. The term "local government" is defined to include cities, counties, school districts, fire districts, sewer districts, water districts, irrigation districts, or other special purpose districts.

[Statutory Authority: RCW 80.50.040. 92-23-012, § 463-42-535, filed 11/6/92, effective 12/7/92. Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-535, filed 10/8/81. Formerly WAC 463-42-620.]

     (2) The application shall include requests for authorization for any emissions otherwise regulated by local air agencies as identified in WAC 463-60-297 Pertinent federal, state and local requirements.

[]

     (1) A completed National Pollutant Discharge Elimination System (NPDES) permit application, for any proposed discharge to surface waters of the state of Washington, pursuant to the requirements of WAC 463-76-031; or

     (2) For any proposed discharge to publicly owned treatment works (POTW) and/or ground water of the state of Washington, a state waste discharge application;

     (3) A notice of intent to be covered under any applicable statewide general permit for storm water discharge.

[]

     The following sections of the Washington Administrative Code are recodified as follows:

Old WAC Number	New WAC Number
463-42-010	463-60-010
463-42-012	463-60-012
463-42-015	463-60-015
463-42-025	463-60-025
463-42-035	463-60-035
463-42-045	463-60-045
463-42-055	463-60-055
463-42-065	463-60-065
463-42-075	463-60-075
463-42-085	463-60-085
463-42-095	463-60-095
463-42-105	463-60-105
463-42-115	463-60-115
463-42-125	463-60-125
463-42-135	463-60-135
463-42-145	463-60-145
463-42-155	463-60-155
463-42-165	463-60-165
463-42-175	463-60-175
463-42-185	463-60-185
463-42-195	463-60-195
463-42-205	463-60-205
463-42-215	463-60-215
463-42-225	463-60-225
463-42-235	463-60-235
463-42-245	463-60-245
463-42-255	463-60-255
463-42-265	463-60-265
463-42-275	463-60-275
463-42-285	463-60-285
463-42-295	463-60-295
463-42-302	463-60-302
463-42-312	463-60-312
463-42-322	463-60-322
463-42-332	463-60-332
463-42-342	463-60-342
463-42-352	463-60-352
463-42-362	463-60-362
463-42-372	463-60-372
463-42-382	463-60-382
463-42-385	463-60-385
463-42-435	463-60-435
463-42-525	463-60-525
463-42-535	463-60-535
463-42-625	463-60-625
463-42-645	463-60-645
463-42-655	463-60-655
463-42-665	463-60-665
463-42-675	463-60-675
463-42-680	463-60-680
463-42-685	463-60-685
463-42-690	463-60-690

REPEALER

     The following sections of the Washington Administrative Code are repealed:

WAC 463-42-382	Built environment -- Public services and utilities.
WAC 463-42-385	PSD application.
WAC 463-42-435	NPDES application.
WAC 463-42-525	Emergency plans.
WAC 463-42-625	Criteria, standards, and factors utilized to develop transmission route.
WAC 463-42-645	Analysis of alternatives.
WAC 463-42-655	Initial site restoration plan.
WAC 463-42-665	Detailed site restoration plan -- Terminated projects.
WAC 463-42-675	Site preservation plan -- Suspended projects.
WAC 463-42-680	Site restoration -- Terminated projects.
WAC 463-42-685	Pertinent federal, state and local requirements.
WAC 463-42-690	Amendments to applications, additional studies, procedure.

OTS-7126.2

[Statutory Authority: RCW 80.50.071. 78-05-054 (Order 78-2), § 463-43-010, filed 4/26/78.]

     (3) Submit a request for expedited processing to the council at the time of application which shall be accompanied by a completed environmental checklist as delineated in WAC 463-46-365)) submit an application for site certification, fees, and a request for expedited processing as required by RCW 80.50.075.

[Statutory Authority: RCW 80.50.071. 78-05-054 (Order 78-2), § 463-43-020, filed 4/26/78.]

     (1) Conduct a public informational meeting in the county of the proposed site within ((60)) sixty days of receipt of an application to provide information to the public concerning the nature and purpose of the energy facility and the review process to be undertaken by the council and to provide an opportunity for the public to present its views((,));

     (2) Determine at a public hearing within ((60)) sixty days of receipt of an application if the proposed site is consistent and in compliance with city, county or regional land use plans ((or)) and zoning ordinances((,));

     (3) Review the application pursuant to WAC 463-43-030; in making its review the council may engage pursuant to RCW 80.50.071 (1)(a) an independent consultant to provide an assessment of the application and environmental checklist and to conduct any special study deemed necessary by the council((,)); and

     (4) Initiate processing of the applicant's NPDES application, if required, in accordance with chapter ((463-38)) 463-76 WAC.

[Statutory Authority: RCW 80.50.071. 78-05-054 (Order 78-2), § 463-43-040, filed 4/26/78.]

     (1) The proposed site is consistent and in compliance with city, county or regional land use plans ((or)) and zoning ordinances((,)); and

     (2) The environmental impact, area potentially affected, cost and magnitude, and degree of change in use caused by the proposed energy facility are not significant enough to warrant a full review of an application for certification under the provisions of chapter 80.50 RCW.

[Statutory Authority: RCW 80.50.071. 78-05-054 (Order 78-2), § 463-43-050, filed 4/26/78.]

     (1) Conduct any further review of an application by an independent consultant((, and));

     (2) Hold an adjudicative proceeding ((hearing)) under chapter 34.05 RCW; and

     (3) Continue an adjudicative proceeding that has commenced.

[Statutory Authority: RCW 80.50.040. 91-03-090, § 463-43-060, filed 1/18/91, effective 2/18/91. Statutory Authority: RCW 80.50.071. 78-05-054 (Order 78-2), § 463-43-060, filed 4/26/78.]

[Statutory Authority: RCW 80.50.071. 78-05-054 (Order 78-2), § 463-43-070, filed 4/26/78.]

[Statutory Authority: RCW 80.50.071. 78-05-054 (Order 78-2), § 463-43-080, filed 4/26/78.]

OTS-7127.3

AMENDATORY SECTION(Amending WSR 98-01-082, filed 12/12/97, effective 1/12/98)

WAC 463-47-020   Adoption by reference.   The energy facility site evaluation council adopts the following sections or subsections of chapter 197-11 WAC by reference as of the effective date of this rule.

((197-11-040	Definitions.))
197-11-050	Lead agency.
197-11-055	Timing of the SEPA process.
197-11-060	Content of environmental review.
197-11-070	Limitations on actions during SEPA process.
197-11-080	Incomplete or unavailable information.
197-11-090	Supporting documents.
197-11-100	Information required of applicants.
197-11-300	Purpose of this part.
197-11-305	Categorical exemptions.
197-11-310	Threshold determination required.
197-11-315	Environmental checklist.
197-11-330	Threshold determination process.
197-11-335	Additional information.
197-11-340	Determination of nonsignificance (DNS).
197-11-350	Mitigated DNS.
197-11-360	Determination of significance (DS)/initiation of scoping.
197-11-390	Effect of threshold determination.
197-11-400	Purpose of EIS.
197-11-402	General requirements.
197-11-405	EIS types.
197-11-406	EIS timing.
197-11-408	Scoping.
197-11-410	Expanded scoping. (Optional)
197-11-420	EIS preparation.
197-11-425	Style and size.
197-11-430	Format.
197-11-435	Cover letter or memo.
197-11-440	EIS contents.
197-11-442	Contents of EIS on nonproject proposals.
197-11-443	EIS contents when prior nonproject EIS.
197-11-444	Elements of the environment.
197-11-448	Relationship of EIS to other considerations.
197-11-450	Cost-benefit analysis.
197-11-455	Issuance of DEIS.
197-11-460	Issuance of FEIS.
197-11-500	Purpose of this part.
197-11-502	Inviting comment.
197-11-504	Availability and cost of environmental documents.
197-11-508	SEPA register.
197-11-510	Public notice.
197-11-535	Public hearings and meetings.
197-11-545	Effect of no comment.
197-11-550	Specificity of comments.
197-11-560	FEIS response to comments.
197-11-570	Consulted agency costs to assist lead agency.
197-11-600	When to use existing environmental documents.
197-11-610	Use of NEPA documents.
197-11-620	Supplemental environmental impact statement -- Procedures.
197-11-625	Addenda -- Procedures.
197-11-630	Adoption -- Procedures.
197-11-635	Incorporation by reference -- Procedures.
197-11-640	Combining documents.
197-11-650	Purpose of this part.
197-11-655	Implementation.
197-11-660	Substantive authority and mitigation.
197-11-680	Appeals.
197-11-700	Definitions.
197-11-702	Act.
197-11-704	Action.
197-11-706	Addendum.
197-11-708	Adoption.
197-11-710	Affected tribe.
197-11-712	Affecting.
197-11-714	Agency.
197-11-716	Applicant.
197-11-718	Built environment.
197-11-720	Categorical exemption.
197-11-722	Consolidated appeal.
197-11-724	Consulted agency.
197-11-726	Cost-benefit analysis.
197-11-728	County/city.
197-11-730	Decisionmaker.
197-11-732	Department.
197-11-734	Determination of nonsignificance (DNS).
197-11-736	Determination of significance (DS).
197-11-738	EIS.
197-11-740	Environment.
197-11-742	Environmental checklist.
197-11-744	Environmental document.
197-11-746	Environmental review.
197-11-750	Expanded scoping.
197-11-752	Impacts.
197-11-754	Incorporation by reference.
197-11-756	Lands covered by water.
197-11-758	Lead agency.
197-11-760	License.
197-11-762	Local agency.
197-11-764	Major action.
197-11-766	Mitigated DNS.
197-11-768	Mitigation.
197-11-770	Natural environment.
197-11-772	NEPA.
197-11-774	Nonproject.
197-11-776	Phased review.
197-11-778	Preparation.
197-11-780	Private project.
197-11-782	Probable.
197-11-784	Proposal.
197-11-786	Reasonable alternative.
197-11-788	Responsible official.
197-11-790	SEPA.
197-11-792	Scope.
197-11-793	Scoping.
197-11-794	Significant.
197-11-796	State agency.
197-11-797	Threshold determination.
197-11-799	Underlying governmental action.
197-11-800	Categorical exemptions.
197-11-880	Emergencies.
197-11-890	Petitioning DOE to change exemptions.
197-11-900	Purpose of this part.
197-11-902	Agency SEPA policies.
197-11-904	Agency SEPA procedures.
197-11-906	Content and consistency of agency procedures.
197-11-910	Designation of responsible official.
197-11-912	Procedures on consulted agencies.
197-11-914	SEPA fees and costs.
197-11-916	Application to ongoing actions.
197-11-917	Relationship to chapter 197-10 WAC.
197-11-918	Lack of agency procedures.
197-11-920	Agencies with environmental expertise.
197-11-922	Lead agency rules.
197-11-924	Determining the lead agency.
197-11-926	Lead agency for governmental proposals.
197-11-928	Lead agency for public and private proposals.
197-11-930	Lead agency for private projects with one agency with jurisdiction.
197-11-932	Lead agency for private projects requiring licenses from more than one agency, when one of the agencies is a county/city.
197-11-934	Lead agency for private projects requiring licenses from a local agency, not a county/city, and one or more state agencies.
197-11-936	Lead agency for private projects requiring licenses from more than one state agency.
197-11-938	Lead agencies for specific proposals.
197-11-940	Transfer of lead agency status to a state agency.
197-11-942	Agreements on lead agency status.
197-11-944	Agreements on division of lead agency duties.
197-11-946	DOE resolution of lead agency disputes.
197-11-948	Assumption of lead agency status.
197-11-950	Severability.
197-11-955	Effective date.
197-11-960	Environmental checklist.
197-11-965	Adoption notice.
197-11-970	Determination of nonsignificance (DNS).
197-11-980	Determination of significance and scoping notice (DS).
197-11-985	Notice of assumption of lead agency status.
197-11-990	Notice of action.