Original Notice.

     Preproposal statement of inquiry was filed as WSR 07-20-029.

     Title of Rule and Other Identifying Information: Amending chapter 374-70 WAC, Heating oil pollution liability insurance program.

     Hearing Location(s): Burien Public Library, Margrette Lemon Room, 14700 Sixth Avenue S.W., Burien, WA 98166, (206) 243-3490, on June 19, 2008, at 6:30 p.m. - 8 p.m.

     Date of Intended Adoption: July 8, 2008.

     Submit Written Comments to: Lynn Gooding, Director, Pollution Liability Insurance Agency, P.O. Box 40930, Olympia, WA 98504-0930, e-mail lgooding@plia.wa.gov, fax (360) 586-5997, by June 27, 2008.

     Assistance for Persons with Disabilities: Contact Xyzlinda Marshall by June 16, 2008, (800) 822-3905 or (360) 586-5997. If you have a speech or hearing disability please call 7-1-1 for Washington relay services.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the changes is to clarify the tanks that are eligible for the insurance program as mandated by chapter 70.149 RCW (not "abandoned" or "decommissioned"). The changes will also establish clear timeframes for registering for the program and for filing insurance claims with the agency.

     The rule changes will include:

•	Clarifying the definition of "abandoned heating oil tank" and adding the definition for "decommissioned heating oil tank.
•	Removing the definition of "active" tank. Tanks will still have to be in use in order to be eligible.
•	Removing the $1500 property damage restoration coverage.
•	Adding language for the new reimbursement for tank upgrades.
•	Removing the requirement of a dealer's signature or invoices/cancelled checks with registration form.
•	Adding a time limit of one hundred eighty days for registering a tank after a property transaction to retain continuous coverage.
•	Adding a time limit of thirty days for filing a claim after abandoning or decommissioning a tank.
•	Removing the requirement for homeowners to contact their homeowners' insurance company when they file a claim with PLIA; however, they will still have to show that they don't have coverage with their insurance company.

     Reasons Supporting Proposal: Changes are needed because of recent agency appeals and a change to chapter 70.149 RCW. These changes will clarify for our insured and potential insured the eligibility and coverage requirements.

     Statutory Authority for Adoption: RCW 70.149.040.

     Statute Being Implemented: Chapter 70.149 RCW.

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

     Name of Proponent: Pollution liability insurance agency, governmental.

     Name of Agency Personnel Responsible for Drafting: Andrea Moss, P.O. Box 40930, Olympia, WA 98504-0930, (360) 586-5997; Implementation: Andrea Moss and Ginny Ristine, P.O. Box 40930, Olympia, WA 98504-0930, (360) 586-5997; and Enforcement: Lynn Gooding, P.O. Box 40930, Olympia, WA 98504-0930, (360) 586-5997.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The pollution liability insurance agency has determined that the rule changes do not require a small business economic impact statement because the changes affect insurance coverage issues.

     A cost-benefit analysis is not required under RCW 34.05.328. The rule changes are clarifying language established by statute.

May 6, 2008

Lynn Gooding

Director

OTS-1543.1

AMENDATORY SECTION(Amending WSR 96-01-101, filed 12/19/95, effective 1/19/96)

WAC 374-70-010   Purpose and authority.   (1) The purpose of this chapter is to address a solution to the threat posed to human health and the environment by accidental releases of heating oil from ((active)) heating oil tanks. It is in the best interest of all citizens for heating oil tanks to be operated safely, and for accidental releases or spills to be dealt with expeditiously in order to ensure that the environment, particularly ground water, is protected. It is also in the best interest of individual heating oil tank owners to protect them from the unexpected liability and potential financial hardship associated with an accidental release from a heating oil tank.

     (2) The pollution liability insurance agency is directed by chapter 70.149 RCW to establish the heating oil pollution liability insurance program to assist owners and operators of ((active)) heating oil tanks.

[Statutory Authority: Chapter 70.149 RCW. 96-01-101, § 374-70-010, filed 12/19/95, effective 1/19/96.]

     (1) "Abandoned heating oil tank" means a heating oil tank ((system)) that has been ((abandoned or decommissioned and is no longer active and in use)) left unused and that is no longer connected to an oil-fired furnace used for space heating of human living or working space on the premises where the tank is located.

     (2) "Accidental release" means a sudden or nonsudden release of heating oil from ((an active)) a heating oil tank that results in bodily injury, property damage, or a need for corrective action, neither expected nor intended by the owner or operator.

     (3) (("Active" heating oil tank means a heating oil tank that:

     (a) Is in use at the time of registration for the heating oil pollution liability insurance program;

     (b) Has been in continuous use for a period of eighteen months prior to registration; and

     (c) Has been continuously in use between registration and submission of a notice of claim.

     (4))) "Agency" means the Washington state pollution liability insurance agency established pursuant to chapter 70.148 RCW. For purposes of chapter 70.149 RCW, agency shall also mean staff or employees of the pollution liability insurance agency.

     (((5))) (4) "Bodily injury" means bodily injury, sickness, or disease sustained by a person, including death at any time, resulting from the injury, sickness, or disease.

     (((6))) (5) "Claim" means a demand made by a named insured, or the insured's representative, for payment of the benefits provided under the heating oil pollution liability insurance program.

     (((7))) (6)(a) "Corrective action" means those actions reasonably required to be undertaken by the insured to remove, treat, neutralize, contain, or clean up an accidental release in order to comply with a statute, ordinance, rule, regulation, directive, order, or similar legal requirement, in effect at the time of an accidental release, of the United States, the state of Washington, or a political subdivision of the United States or the state of Washington. "Corrective action" includes, where agreed to in writing, in advance by the insurer, action to remove, treat, neutralize, contain, or clean up an accidental release to avert, reduce, or eliminate the liability of the insured for corrective action, bodily injury, or property damage. "Corrective action" also includes actions reasonably necessary to monitor, assess, and evaluate an accidental release.

     (b) "Corrective action" does not include:

     (i) Removal, replacement or repair of heating oil tanks or other receptacles, except reimbursement of new tank replacement costs in accordance with RCW 70.149.120;

     (ii) Replacement or repair of piping, connections, and valves of tanks or other receptacles; or

     (iii) Costs directly associated with tank removal.

     (7) "Decommissioned heating oil tank" means a heating oil tank that is no longer connected to an oil-fired furnace used for space heating of human living or working space on the premises where the tank is located and that has been taken out of operation in accordance with the International Fire Code and any pertinent local government requirements.

     (8) "Director" means the director of the Washington state pollution liability insurance agency or the director's appointed representative.

     (9) "Heating oil" means any petroleum product used for space heating in oil-fired furnaces, heaters, and boilers, including stove oil, diesel fuel, or kerosene. "Heating oil" does not include petroleum products used as fuels in motor vehicles, marine vessels, trains, buses, aircraft, or any off-highway equipment not used for space heating, or for industrial processing or the generation of electrical energy.

     (10) "Heating oil tank" means ((an active)) a tank and its connecting pipes, whether above or below ground, or in a basement, with pipes connected to the tank for space heating of human living or working space on the premises where the tank is located. "Heating oil tank" does not include a decommissioned or abandoned heating oil tank, or a tank used solely for industrial process heating purposes or generation of electrical energy.

     (11) "Heating oil tank service provider" is an independent contractor responsible for corrective action including sampling and testing, remedial actions, site restoration, and submittal of required reports to PLIA.

     (12) "Insurer" means the commercial insurance company providing pollution liability insurance to registered owners of heating oil tanks under the heating oil pollution liability insurance program. PLIA is the reinsurer of the commercial insurance company and acts as the designated representative of the insurer for the heating oil pollution liability insurance program.

     (13) "MTCA" means the Model Toxics Control Act (chapter 70.105D RCW).

     (14) "Named insured" means the individual insureds who are heating oil tank owners registered for coverage under the heating oil pollution liability insurance program.

     (15) "Occurrence" means an accident, including continuous or repeated exposure to conditions, that results in an accidental release from ((an active)) a heating oil tank.

     (16) "Owner" means the person, or his or her authorized representative, legally responsible for a heating oil tank, its contents, and the premises upon which the heating oil tank is located.

     (17) "Owner or operator" means a person in control of, or having responsibility for, the daily operation of a heating oil tank.

     (18) "Per occurrence, per site, per year" means one accidental release per site, per year.

     (19) "Pollution liability insurance agency" (PLIA) means the Washington state pollution liability insurance agency established pursuant to chapter 70.148 RCW. For purposes of chapter 70.149 RCW, pollution liability insurance agency shall also mean staff or employees of the pollution liability insurance agency.

     (20) "Pollution liability insurance agency trust account" means the pollution liability insurance agency trust account established under chapter 70.148 RCW and established in the custody of the state treasurer. Expenditures from the account are used for the purposes of chapter 70.148 RCW including the payment of costs of administering the pollution liability insurance program, and payment of reinsurance claims.

     (21) "Property damage" means:

     (a) Physical injury to, destruction of, or contamination of tangible property, including the loss of use of the property resulting from the injury, destruction, or contamination; or

     (b) Loss of use of tangible property that has not been physically injured, destroyed, or contaminated but has been evacuated, withdrawn from use, or rendered inaccessible because of an accidental release.

     (22) (("Property damage restoration" means the restoration of property to a similar condition to that of the property prior to the accidental release. Restoration includes the replacement of sod, plants or concrete driveway or walkway, or the cleaning or replacement of carpet in the case of a basement tank.

     (23))) "Release" means a spill, leak, emission, escape, or leaching into the environment.

     (((24))) (23) "Third-party claimant" means a person alleged to have suffered property damage requiring corrective action or bodily injury as a direct result of a leak or spill from the heating oil tank of a named insured.

     (((25))) (24) "Third-party liability" means the liability of a heating oil tank owner to another person due to property damage requiring corrective action or bodily injury that results from a leak or spill from ((an active)) a heating oil tank.

[Statutory Authority: Chapter 70.149 RCW. 97-06-080, § 374-70-020, filed 3/3/97, effective 4/3/97; 96-01-101, § 374-70-020, filed 12/19/95, effective 1/19/96.]

     (2) The location of the principal office and the mailing address of the agency is:

     Pollution Liability Insurance Agency

     State of Washington

     1015 10th Avenue, S.E.

     P.O. Box 40930

     Olympia, WA 98504-0930

     (3) The principal administrative and appointing officer of the agency is the director. The director may designate other employees of the agency to act in his or her behalf in the director's absence or with respect to those matters in which so doing would enhance the efficiency of the agency's operations.

     (4) In administering the heating oil pollution liability insurance program, PLIA acts as the designated representative of the insurer providing pollution liability insurance to registered owners of heating oil tanks.

[Statutory Authority: Chapter 70.149 RCW. 97-06-080, § 374-70-030, filed 3/3/97, effective 4/3/97; 96-01-101, § 374-70-030, filed 12/19/95, effective 1/19/96.]

[Statutory Authority: Chapter 70.149 RCW. 96-01-101, § 374-70-040, filed 12/19/95, effective 1/19/96.]

     (1) Participation in the heating oil pollution liability insurance program is optional for heating oil tank owners. If a heating oil tank owner wishes to participate in the heating oil pollution liability insurance program, the heating oil tank owner must register the ((active)) heating oil tank by submitting to PLIA a completed registration form to be provided by PLIA. ((Heating oil tank owners choosing to participate in the heating oil pollution liability insurance program established by this chapter must comply with the following criteria:

     (a) The owner must submit proof, by one or more of the following methods, that the heating oil tank is active at the time of registration with the agency (PLIA) and that the heating oil tank has remained active eighteen months prior to registration:

     (i) The owner must submit to PLIA a statement from a heating oil supplier attesting to deliveries of heating oil to the heating oil tank for eighteen months prior to registration; and/or

     (ii) The owner must submit to PLIA a copy of invoices, or canceled checks, for receipt of heating oil at the heating oil tank reflecting purchases or deliveries for eighteen months prior to registration;

     (b))) (2) Abandoned or decommissioned heating oil tanks ((systems)) are not eligible for coverage under the heating oil pollution liability insurance program((;

     (c) At the discretion of the director, the following circumstances dictate individual consideration for eligibility for coverage under the heating oil pollution liability insurance program:

     (i) If a heating oil tank has been recently installed (new construction) or reactivated (conversion to oil heat); or

     (ii) If a heating oil tank has not been active for eighteen months prior to registration due to unusual or extenuating circumstances;

     (d))), except as described in WAC 374-70-080(4) and 374-70-090(4).

     (3) Registration in the heating oil pollution liability insurance program must be in the name of the current owner of the property where the registered heating oil tank is located. In the event of a property transfer, ((heating oil pollution liability insurance coverage of a registered heating oil tank ceases. The new owner must submit a new registration form if the owner wishes to participate in the heating oil pollution liability insurance program. If the new owner does not submit a new registration form, the active heating oil tank will not be covered under the heating oil pollution liability insurance program; and

     (e))) the new property owner must submit a new registration form within one hundred eighty calendar days of the property transfer in order to avoid a lapse in coverage from the prior registered owner. The date of the property transfer will be considered the first day of the one hundred eighty calendar days. If the new owner does not register within one hundred eighty calendar days, the registration will be considered a new registration and coverage will start on the date the registration was received. Property transfers include, but are not limited to, sales, gifting, and inheritances. If a claim for coverage under WAC 470-70-080 or 470-70-090 is submitted within one hundred eighty calendar days after the property is transferred, and before the new owner has submitted a new registration, the new owner will be deemed to be the named insured for the purposes of this chapter.

     (4) PLIA reserves the right to perform an independent investigation to verify the eligibility of a heating oil tank. All investigative costs will be the responsibility of PLIA.

     (((2))) (5) Accidental releases occurring prior to heating oil tank registration are not eligible for coverage under the heating oil pollution liability insurance program.

     (((3))) (6) Owners and operators of ((active)) heating oil tanks, or sites containing ((active)) heating oil tanks where an accidental release has been identified or where the owner or operator knows of an accidental release prior to heating oil tank registration are eligible for coverage under the heating oil pollution liability insurance program ((subject to the following conditions:

     (a) The owner or operator must have a plan for proceeding with corrective action; and

     (b))); however, if the owner or operator files a claim with PLIA, the owner or operator has the burden of proving, to the satisfaction of the director, that the claim is not related to an accidental release occurring prior to the heating oil tank registration.

[Statutory Authority: Chapter 70.149 RCW. 96-01-101, § 374-70-050, filed 12/19/95, effective 1/19/96.]

     (2) The heating oil pollution liability insurance program provides coverage for corrective action costs up to sixty thousand dollars per occurrence, per site, per year, exclusive of other valid insurance or warranties.

     (3) Corrective action costs covered under the heating oil pollution liability insurance program include:

     (a) Corrective action if the accidental release occurs after the registration of ((an active)) a heating oil tank;

     (b) Actions necessary to determine the extent and severity of an accidental release;

     (c) Costs, not to exceed sixty thousand dollars per occurrence, per site, per year;

     (d) Costs in excess of other valid insurance or warranties;

     (e) ((First-party property damage restoration, including landscaping, limited to one thousand five hundred dollars per occurrence, per site, per year;

     (f) Third-party property damage restoration, including landscaping, limited to one thousand five hundred dollars for each third-party claimant per occurrence, per site, per year;

     (g))) Excavation, treatment and/or removal and proper disposal of any soil or water contaminated by the accidental release and proper disposal of nonrepairable heating oil tank or tanks; ((and

     (h))) (f) Required soil and water sampling and testing to determine if corrective action standards have been met; and

     (g) Reimbursement of new tank replacement costs in accordance with RCW 70.149.120.

     (4) Corrective action costs not covered under the heating oil pollution liability insurance program include:

     (a) Corrective action if the accidental release occurred prior to the registration of ((an active)) a heating oil tank;

     (b) Costs covered by other valid insurance or warranties;

     (c) Costs in excess of sixty thousand dollars per occurrence, per site, per year, exclusive of other valid insurance or warranties;

     (d) Cleanup of contamination from other sources;

     (e) Removal, repair or replacement of the heating oil tank, lines, or furnace, except reimbursement of new tank replacement costs in accordance with RCW 70.149.120;

     (f) Emergency heat restoration procedures;

     (g) Cleanup of a site beyond the MTCA cleanup levels;

     (h) Corrective action associated with an abandoned or decommissioned heating oil tank or site; and

     (i) ((First-party property damage restoration, including landscaping, in excess of one thousand five hundred dollars per occurrence, per site, per year;

     (j) Third-party property damage restoration, including landscaping, in excess of one thousand five hundred dollars for each third-party claimant per occurrence, per site, per year; and

     (k))) Defense costs, including the costs of legal representation, expert fees, and related costs and expenses incurred in defending against claims or actions brought by or on behalf of:

     (i) The United States, the state of Washington, or a political subdivision of the United States or state of Washington to require corrective action or to recover costs of corrective action; or

     (ii) A third party for bodily injury or property damage caused by an accidental release.

     (5) If a claim exceeds sixty thousand dollars in total damages, coverage within the sixty thousand dollar policy limit shall be on a pro rata basis between the insured heating oil tank owner and third-party claimant(s).

     (6) A claim will be accepted for coverage only after an investigation has confirmed the existence of an accidental release which is eligible for coverage under these rules.

[Statutory Authority: Chapter 70.149 RCW. 97-06-080, § 374-70-060, filed 3/3/97, effective 4/3/97; 96-01-101, § 374-70-060, filed 12/19/95, effective 1/19/96.]

     (1) Heating oil tank owner or operator. All liabilities caused by an accidental release originating from a heating oil tank are the sole responsibility of the heating oil tank owner. The pollution liability insurance agency and/or the state of Washington accepts no liability, nor portion of the liability, from the heating oil tank owner. The heating oil tank operator may submit forms to PLIA on behalf of the owner, however, no corrective action may be performed without the specific written consent of the heating oil tank owner. The heating oil tank owner or operator is responsible for notifying the heating oil supplier in the case of a suspected accidental release and investigating the source and extent of the suspected accidental release. The heating oil tank owner is responsible ((for notification of homeowner's insurer and determination of whether)) to provide documentation to PLIA that coverage will not be provided by the owner's homeowners' insurer. If corrective action is implemented, the heating oil tank owner is responsible for selecting a service provider approved by the insurer and approving the completed corrective action.

     (2) Adjacent property owners. If an accidental release migrates off-site, or is suspected to have migrated, the adjacent property owner may be involved in the corrective action. In this situation, the heating oil tank owner or operator shall notify PLIA of the occurrence and provide the adjacent property owner's name, address and telephone number.

     (3) Heating oil supplier. Some heating oil suppliers provide customer services which may be a resource to evaluate a suspected accidental release to the environment. If after investigating a heating system malfunction, a heating oil supplier determines that an accidental release may have occurred, the heating oil supplier should inform the owner or operator of the accidental release.

     (4) PLIA acts as the designated representative of the insurer for purposes of the heating oil pollution liability insurance program. PLIA provides informal advice and assistance to heating oil tank owners and operators, registers heating oil tanks for insurance coverage, provides listings of service providers approved by the insurer, manages claims for the insurer and provides certification that a claim is closed.

     (5) Third-party administrator. PLIA may appoint a third-party administrator to assist in monitoring, investigation and corrective action.

     (6) Department of ecology. The department of ecology administers statewide laws and rules detailing MTCA cleanup standards for both soil and ground water. To be eligible for coverage under the heating oil pollution liability insurance program, corrective action must satisfy MTCA and pertinent local government requirements.

     (7) Heating oil tank service provider. A heating oil tank service provider is an independent contractor who contracts with an owner or operator to perform corrective action, including submitting reports to PLIA on behalf of the owner or operator.

[Statutory Authority: Chapter 70.149 RCW. 97-06-080, § 374-70-070, filed 3/3/97, effective 4/3/97; 96-01-101, § 374-70-070, filed 12/19/95, effective 1/19/96.]

     (1) The claim must be for corrective action resulting from an accidental release from ((an active)) a heating oil tank which has been registered with PLIA prior to the accidental release;

     (2) The claim must satisfy all requirements and restrictions established by chapter 70.149 RCW and this chapter. Any failure to satisfy all requirements and restrictions may be a basis for denial of claim;

     (3) The heating oil tank owner or operator must provide notice to PLIA that a potential claim exists ((within ten days of)) as soon as practicable after discovery that an accidental release may have occurred;

     (4) The claim must be submitted to PLIA not more than thirty calendar days after the date a registered heating oil tank becomes abandoned or decommissioned. The heating oil tank owner or operator has the burden of proving, to the satisfaction of the director, that the tank has not been abandoned or decommissioned longer than thirty calendar days. The date that the tank is abandoned or decommissioned, whichever is earlier, will be considered the first of the thirty calendar days. PLIA may accept claims after thirty calendar days if the abandoned or decommissioned tank was registered with PLIA and was replaced with a new heating oil tank that continues to be registered with PLIA;

     (5) Upon receipt of notice of a potential claim, PLIA will commence completion of the notice of claim, and will provide the heating oil tank owner or operator with a list of insurer approved heating oil tank service providers;

     (((5))) (6) The heating oil tank operator may submit reports and forms on behalf of the heating oil tank owner; however, no corrective action will be initiated or performed without the specific written consent of the heating oil tank owner;

     (((6))) (7) The heating oil tank owner is responsible for investigation to determine the source and extent of a suspected accidental release. The heating oil tank owner is also responsible for ((notification of the homeowner's insurer and determination of whether)) providing documentation to PLIA that coverage will not be provided by the owner's homeowners' insurer;

     (((7))) (8) If the claim is determined by PLIA to be valid, PLIA will so notify the heating oil tank owner or operator. The corrective action shall be performed by a heating oil tank service provider approved by the insurer;

     (((8))) (9) The heating oil tank service provider will notify PLIA of selection by the heating oil tank owner or operator. PLIA will then forward to the heating oil tank service provider the following forms:

     (a) Scope of work proposal. This form will provide the heating oil tank owner or operator and PLIA a proposal of the extent and elements of corrective action, as well as a specific cost proposal;

     (b) Change order. This form provides a proposal for change or deviation from the scope of work proposal;

     (c) Project field report. This form provides a record of all corrective action and work elements, as well as a record of detailed costs. The project field report must include color photographs of the project at commencement, completion, and any significant steps in between, as well as appropriate project sketches and/or plans; and

     (d) Claim report. This form will include a project closeout report, final cleanup report, and corrective action cost claim;

     (((9))) (10) The heating oil tank service provider will submit for approval to the heating oil tank owner or operator and to PLIA a scope of work proposal for corrective action at the heating oil tank site;

     (((10))) (11) Upon receipt of approval by the heating oil tank owner or operator and PLIA of the scope of work proposal, the heating oil tank service provider may commence work to accomplish corrective action;

     (((11))) (12) All work performed by the heating oil tank service provider on behalf of the heating oil tank owner or operator and PLIA must be within the terms of the contract and the approved scope of work proposal and shall not exceed costs included in the scope of work proposal. Any change(s) or deviation(s) from the approved scope of work proposal must be accomplished through a change order request which must be approved in advance by the heating oil tank owner or operator and PLIA. Any work performed by the heating oil tank service provider that has not been approved, prior to performance, by the heating oil tank owner or operator and PLIA, or is beyond the terms of the scope of work proposal or change order(s), or is in excess of costs approved in the scope of work proposal or change order(s), will not be paid or reimbursed under the heating oil pollution liability insurance program. Such work or excess costs will be the responsibility of the heating oil tank owner and/or heating oil tank service provider;

     (((12))) (13) Corrective action activities and costs must be recorded by the heating oil tank service provider on the project field report form provided by PLIA;

     (((13))) (14) Upon completion of all corrective action, the heating oil tank owner or operator must sign the project closeout report indicating approval of and satisfaction with all work performed by the heating oil tank service provider;

     (((14))) (15) Upon completion of corrective action and approval by the heating oil tank owner or operator, the heating oil tank service provider must submit to PLIA a complete claim report;

     (((15))) (16) Upon completion of corrective action that appears to satisfy the requirements of all applicable state and local statutes, the director will certify that the claim has been closed;

     (((16))) (17) Approval of claims and payment of covered costs are contingent upon the availability of revenue. The director reserves the right to defer payment at any time that claim demands exceed the revenue available for the heating oil pollution liability insurance program. Payment will commence with sufficient revenue;

     (((17))) (18) PLIA will maintain all records associated with a claim for a period of ten years; and

     (((18))) (19) In the case of an emergency, the director may authorize deviation from this procedure to the extent necessary to adequately respond to the emergency.

[Statutory Authority: Chapter 70.149 RCW. 97-06-080, § 374-70-080, filed 3/3/97, effective 4/3/97; 96-01-101, § 374-70-080, filed 12/19/95, effective 1/19/96.]

     (1) The claim must be for corrective action resulting from a leak or spill from ((an active)) a heating oil tank which has been registered with PLIA prior to the leak or spill;

     (2) The claim must satisfy all requirements and restrictions established for third-party claims by chapter 70.149 RCW and this chapter. Any failure to satisfy all requirements and restrictions may be a basis for denial of claim;

     (3) The third-party claimant must provide notice to PLIA that a potential third-party claim may exist ((within fifteen days of)) as soon as practicable after discovery that damage may have occurred from a leak or spill from a named insured's ((active)) heating oil tank;

     (4) The claim must be submitted to PLIA not more than thirty calendar days after the date a registered heating oil tank is abandoned or decommissioned. The heating oil tank owner or operator has the burden of proving, to the satisfaction of the director, that the tank has not been abandoned or decommissioned longer than thirty calendar days. The date that the tank is abandoned or decommissioned, whichever is earlier, will be considered the first day of the thirty calendar days. PLIA may accept claims after thirty calendar days if the abandoned or decommissioned tank was registered with PLIA and was replaced with a new heating oil tank that continues to be registered with PLIA;

     (5) Upon receipt of notice of a potential claim, PLIA will commence completion of the notice of claim;

     (((5))) (6) If an accidental release from a named insured's heating oil tank has been confirmed, PLIA, as designated representative of the insurer will initiate an investigation to determine the extent and source of the contamination. Investigation will be performed by PLIA or a designated representative approved by the insurer. PLIA may also assist the named insured heating oil tank owner in determining if the insured's homeowner's insurance provides coverage for third-party damage. The third-party claimant shall cooperate fully with the investigator and provide any information or access necessary to complete the investigation;

     (((6))) (7) If the claim is determined by PLIA to be valid, the third-party claimant will be notified by PLIA to select a heating oil tank service provider, approved by the insurer, to perform corrective action;

     (((7))) (8) The heating oil tank service provider will notify PLIA of selection by the third-party claimant. PLIA will then forward to the heating oil tank service provider the following forms:

     (a) Scope of work proposal. This form will provide the third-party claimant and PLIA a proposal of the extent and elements of corrective action, as well as a specific cost proposal;

     (b) Change order. This form provides a proposal for change or deviation from the scope of work proposal;

     (c) Project field report. This form provides a record of all corrective action and work elements, as well as a record of detailed costs. The project field report must include color photographs of the project at commencement, completion, and any significant steps in between, as well as appropriate project sketches and/or plans; and

     (d) Claim report. This form will include a project closeout report, final cleanup report, and corrective action cost claim;

     (((8))) (9) The heating oil tank service provider will submit for approval to the third-party claimant and to PLIA a scope of work proposal for corrective action;

     (((9))) (10) Upon receipt of approval by the third-party claimant and PLIA of the scope of work proposal, the heating oil tank service provider may commence work to accomplish corrective action;

     (((10))) (11) All work performed by the heating oil tank service provider on behalf of the third-party claimant and the insurer must be within the terms of the contract and the approved scope of work proposal and shall not exceed costs included in the scope of work proposal. Any change(s) or deviation(s) from the approved scope of work proposal must be accomplished through a change order request which must be approved in advance by the third-party claimant and PLIA. Any work performed by the heating oil tank service provider that has not been approved, prior to performance, by the third-party claimant and PLIA, or is beyond the terms of the scope of work proposal or change order(s), or is in excess of costs approved in the scope of work proposal or change order(s), will not be paid or reimbursed under the heating oil pollution liability insurance program. Such work or excess costs will be the responsibility of the third-party claimant and/or heating oil tank service provider;

     (((11))) (12) Corrective action activities and costs must be recorded by the heating oil tank service provider on the project field report form provided by PLIA;

     (((12))) (13) Upon completion of all corrective action, the third-party claimant must sign the project closeout report indicating approval of and satisfaction with all work performed by the heating oil tank service provider;

     (((13))) (14) Upon completion of corrective action and approval by the third-party claimant, the heating oil tank service provider must submit to PLIA a complete claim report. After review and approval of the claim report by PLIA, the heating oil tank service provider will receive payment;

     (((14))) (15) Upon completion of corrective action that appears to satisfy the requirements of all applicable state and local statutes, the director will certify that the claim has been closed;

     (((15))) (16) Approval of claims and payment of covered costs are contingent upon the availability of revenue. The director reserves the right to defer payment at any time that claim demands exceed the revenue available for the heating oil pollution liability insurance program. Payment will commence with sufficient revenue;

     (((16))) (17) PLIA will maintain all records associated with a claim for a period of ten years; and

     (((17))) (18) In the case of an emergency, the director may authorize deviation from this procedure to the extent necessary to adequately respond to the emergency.

[Statutory Authority: Chapter 70.149 RCW. 97-06-080, § 374-70-090, filed 3/3/97, effective 4/3/97; 96-01-101, § 374-70-090, filed 12/19/95, effective 1/19/96.]

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