WSR 19-20-121
[Filed October 2, 2019, 11:10 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 17-23-126.
Title of Rule and Other Identifying Information: Chapter 374-100 WAC, State Environmental Policy Act (SEPA), this proposal is for a new chapter and reflects the pollution liability insurance agency's (PLIA) adoption of rules as required by RCW 43.21C.110 to ensure agency review for sites entering and managed in PLIA programs.
Hearing Location(s): On November 6, 2019, at 12-2 p.m. and 5:30-7:30 p.m., at the Spokane Public Library; on November 12, 2019, at 12-2 p.m., at the Lacey Timberland Library; and on November 13, 2019, at 1-3 p.m., at the Olympia Timberland Library. See for details.
Date of Intended Adoption: November 15, 2019.
Submit Written Comments to: Phi V. Ly, P.O. Box 40930, Olympia, WA 98504-0930, email, fax 360-407-0509, 800-822-3905, by November 13, 2019.
Assistance for Persons with Disabilities: Contact Xyzlinda Marshall, phone 360-407-0515, fax 360-407-0509, TTY 711 or 800-833-6388, email, by November 13, 2019.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: PLIA provides an effective and efficient government funding model to support owners and operators in meeting financial responsibility and environmental clean-up requirements for underground storage tanks. PLIA programs offer owners and operators of underground storage tanks with insurance, financial assistance, and technical assistance related to cleanup and meeting the substantive requirements of the Model Toxics Control Act. These activities require implementing statutory guidelines and adopting of rules to reflect agency review.
The proposed rules are new and reflect the agency's compliance with SEPA, chapter 43.21C RCW. It is anticipated that PLIA's implementation of SEPA will further enhance the loan and grant program. PLIA will implement the SEPA checklist and review process to all loan and grant program participants.
Reasons Supporting Proposal: SEPA, RCW 43.21C.120, requires PLIA to adopt rules according to the provisions of Chapter 197-11 WAC because these guidelines apply to the agency's programs, activities, and actions. These rules ensure that PLIA provides consistent agency review of program sites.
Statutory Authority for Adoption: RCW 43.21C.120.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Unknown.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Phi V. Ly, 300 Desmond Drive, Lacey, WA 98506, 360-407-0517.
A school district fiscal impact statement is not required under RCW 28A.305.135.
A cost-benefit analysis is not required under RCW 34.05.328. Adoption of SEPA rules does not require [a] cost-benefit analysis because the requirements pertain to existing agency actions and activities.
This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
Is exempt under RCW 19.85.025(3) as the rules are adopting or incorporating by reference without material change federal statutes or regulations, Washington state statutes, rules of other Washington state agencies, shoreline master programs other than those programs governing shorelines of statewide significance, or, as referenced by Washington state law, national consensus codes that generally establish industry standards, if the material adopted or incorporated regulates the same subject matter and conduct as the adopting or incorporating rule.
October 2, 2019
Phi V. Ly
Legislative and
Policy Manager
Chapter 374-100 WAC
WAC 374-100-010Authority.
The pollution liability insurance agency adopts these rules under RCW 43.21C.120 (State Environmental Policy Act) and chapter 197-11 WAC (SEPA rules).
WAC 374-100-020Adoption by reference.
(1) The provisions of chapter 197-11 WAC (SEPA guidelines adopted by the department of ecology), are hereby adopted by PLIA, and are incorporated in and made a part of this chapter by reference herein, to the extent that the SEPA guidelines are applicable to the programs, activities, and actions of PLIA.
(2) The provisions of this chapter are intended to implement the provisions of chapter 197-11 WAC, and to be consistent therewith.
WAC 374-100-030Purpose.
(1) The purpose of this chapter is to implement chapter 197-11 WAC, SEPA rules, as applicable to the pollution liability insurance agency.
(2) These policies and procedures are developed to implement SEPA in a manner which reduces duplication, establishes effective and uniform rules, encourages public involvement, and promotes certainty with respect to the requirements of the act.
WAC 374-100-040Additional definitions.
In addition to the definitions contained in WAC 197-11-700 through 197-11-799, the following terms shall have the listed meanings:
(1) "PLIA" means the pollution liability insurance agency.
(2) "Proponent" means applicant, as defined in WAC 197-11-716 or party with a proposal, as defined in WAC 197-11-784.
WAC 374-100-050Categorical exemptions.
The following activities of the PLIA are within the categorical exemptions contained in the indicated subsections of WAC 197-11-800:
(1) Actions that must be undertaken immediately or within a time too short to allow full compliance with this chapter, to avoid an imminent threat to public health or safety, to prevent an imminent danger to public or private property, or to prevent an imminent threat of serious environmental degradation as provided in WAC 197-11-880 including, but not limited to:
(a) Performance of emergency removal and disposal of petroleum products from a tank;
(b) Performance of emergency removal and disposal of soil or groundwater contaminated with petroleum products;
(c) Approval of funding for emergency projects;
(d) Emergency disaster response or maintenance.
(2) All inspections conducted by PLIA of either private or public property for any purpose as provided in WAC 197-11-800 (12)(b) including, but not limited to:
(a) Performing initial investigations of a reported release of heating oil;
(b) Performing periodic review of an environmental covenant;
(c) Inspection related to insurance policies.
(3) All review and payment of claims as provided in WAC 197-11-800 (14)(e) including, but not limited to:
(a) Review and payment of insurance claims under the heating oil pollution liability insurance program;
(b) Review and payment of insurance claims under the commercial underground storage tank reinsurance program.
(4) Providing grants or loans by PLIA's underground storage tank loan and grant program to another agency, as provided in WAC 197-11-800(15).
WAC 374-100-060Summary of information which may be required of an applicant.
(1) The applicant for each proposal for which the PLIA is the lead agency shall submit a complete environmental checklist along with a complete application for the required approval.
(2) After review of the environmental checklist, the PLIA may require the applicant to submit additional information necessary to properly evaluate the potential environmental impacts of the project. Field investigation or research may be required of the applicant or conducted by the PLIA at the applicant's cost.
(3) Preparation of EIS is the responsibility of PLIA. The responsible official shall be satisfied that any EIS issued by the PLIA is in compliance with these rules and chapter 197-11 WAC.
(4) Whenever someone other than the PLIA prepares an EIS the responsible official shall:
(a) Coordinate scoping to ensure that the individual preparing the document receives all substantive information submitted by any agency or person.
(b) Direct the areas of research and study to be undertaken and the content and organization of the document.
(c) Assist in obtaining information on file with another agency that is needed by the person preparing the document.
(5) An EIS is required for each project for which a determination is made that the proposal will have a probable significant adverse impact on the environment. The applicant may prepare the EIS if judged by the PLIA to be qualified, have the PLIA develop the EIS, or hire a consultant to do so. In any case, the EIS shall be prepared under the direction of the responsible official at the expense of the applicant and final approval is that of the responsible official. Cost of preparing the EIS shall be paid by the applicant and shall include fees of the consultant, the PLIA consultation time and cost of any required materials. If the applicant chooses to hire a consultant to prepare the EIS, the consultant must be mutually agreed upon by the applicant and the PLIA. A performance bond in an amount specified by the PLIA may be required of the applicant to ensure payment of the PLIA expenses pursuant to WAC 197-11-914. Private applicants are encouraged to be involved in the EIS preparation process.
(6) A supplemental EIS shall be prepared as an addition to the EIS if the PLIA decides that:
(a) There are substantial changes to a proposal which will have a probable significant adverse environmental impact; or
(b) There is significant new information relative to the probable significant environmental impact of a proposal.
(c) Pursuant to WAC 197-11-600 (3)(c), written comments on the DEIS warrant additional discussion for purposes of its action than that found in the FEIS.
WAC 374-100-070Timing of the SEPA process.
(1) As provided by WAC 197-11-055, the SEPA process shall be completed before the pollution liability insurance agency is irrevocably committed to a particular course of action. At the same time, the SEPA process should not be undertaken until a proposal is sufficiently definite to permit meaningful environmental analysis.
(2) When PLIA receives an application or proposal, the agency shall determine whether PLIA's SEPA action is "categorically exempt" or statutorily exempt from SEPA. If exempt, and WAC 197-11-305 does not remove categorical exempt status, PLIA has no further obligation under SEPA.
(3) The threshold determination and any required environmental impact statement (EIS) for PLIA nonproject actions shall be completed prior to official adoption of the action in question.
(4) The threshold determination and any required EIS for issuance of a loan or grant under PLIA's underground storage tank loan and grant program shall be completed prior to issuance of the loan or grant in question. Applicants shall provide all environmental and design information necessary to prepare the appropriate environmental document.
(5) The threshold determination and any required EIS for PLIA actions of a project nature shall in all cases be completed prior to the approval of the location or design of the project in question. Where the project involves remedial actions under the Model Toxics Control Act conducted a potentially liable person under an order or consent decree, the timing and review requirements of WAC 197-11-250 through 197-11-268 will govern as appropriate.
WAC 374-100-080Lead agency determination.
(1) PLIA will endeavor to determine whether PLIA or another agency is the SEPA lead agency within five working days of receiving the nonexempt proposal. See WAC 197-11-050 and 197-11-922 through 197-11-940. If PLIA is not the lead agency, PLIA shall send the complete environmental checklist and a copy of the application or proposal to the lead agency with an explanation of why PLIA identified the agency as the lead agency.
(2) PLIA may determine it would be appropriate to share or divide lead agency responsibilities with other agencies. In such an event, one agency will be designated the nominal lead agency, and shall be responsible for complying with the duties of the lead agency under the SEPA rules. Other agencies with jurisdiction shall be notified of the agreement and determination of the nominal lead agency.
(3) Whenever PLIA is an agency of jurisdiction and determines that a DNS issued by another lead agency is inappropriate and that the proposal in question could cause significant harm to the resources under its jurisdiction, the agency may assume lead agency status per WAC 197-11-948. Within ten days of assuming lead agency status, PLIA will notify the proponent of the proposal in writing as to the reasons for its assumption of lead agency status. Prior to preparation of an EIS for the proposal, PLIA will consult with the proponent and give the proponent an opportunity to modify or change the proposal in such a way that an EIS may not be necessary as outlined in WAC 197-11-360(4).
WAC 374-100-090Availability, distribution, and costs of environmental documents.
(1) When PLIA is the lead agency, PLIA personnel shall distribute SEPA documents as required by chapter 197-11 WAC unless another agency is nominal colead with PLIA. The following are acceptable methods of distribution:
(a) Email environmental documents including attached checklists and backup materials provided the recipient agency or interested party has made its email address available to PLIA;
(b) Mail environmental documents, including attached checklists and backup materials, on CDs or as hardcopies to agency mailing lists that include either general lists or lists for specific proposals or subject areas.
(2) A requestor asking for additional hard copies of a SEPA document may be required to pay additional copying fees per WAC 197-11-504.
(3) PLIA shall use reasonable methods to inform the public when PLIA issues a DNS under WAC 197-11-340, a mitigated DNS under WAC 197-11-350, a scoping notice under WAC 197-11-360, a draft EIS under WAC 197-11-455, a draft supplemental EIS under WAC 197-11-620, a final EIS under WAC 197-11-460, or when PLIA schedules a public hearing under WAC 197-11-502, 197-11-535, and 197-11-610. PLIA shall use two or more of the following reasonable methods of public notice, taking into consideration the geographic area affected by the proposal, the size and complexity of the proposal, the public notice requirements associated with PLIA's non-SEPA decision (underlying governmental decision), public interest expressed in the proposal, and whether the proposal is a project or regulation:
(a) Notify persons or groups who have expressed interest in the proposal or in the type of proposal being considered, who have expressed interest in proposals located in the affected geographic area, and who PLIA has identified as potentially interested parties;
(b) Publish a notice in a newspaper of general circulation in the area in which the proposal will be implemented;
(c) Post the property with appropriate signage;
(d) Post notices and environmental documents on PLIA's web site.
(4) As required under WAC 197-11-508 for state agencies, PLIA shall submit the following environmental documents to the department of ecology for publication in the SEPA register:
(a) DNSs under WAC 197-11-340;
(b) DSs (scoping notices) under WAC 197-11-408;
(c) EISs under WAC 197-11-455, 197-11-460, and 197-11-620;
(d) Adoption notices to the extent required by WAC 197-11-610 and 197-11-630; and
(e) Notices of action under RCW 43.21C.080 and 43.21C.087.
WAC 374-100-100Agency policySubstantive authority and mitigation.
(1) The policy of the pollution liability insurance agency is to avoid or mitigate adverse environmental impacts that may result from agency actions or approvals. This policy results from:
(a) The legislated duties of the agency with respect to protection of human health and the environment; and
(b) Recognition of the fact that each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment (RCW 43.21C.020(3)).
(2) If an action is subject to SEPA, and the proposed activity requires an action, approval or permit from the agency, and is reasonably likely to have an adverse environmental impact as identified in an environmental document, the agency may:
(a) Require reasonable alternatives to the action, approval or permit and/or proven measures which will mitigate or eliminate the identified potential adverse impact, and make such alternatives and/or proven mitigation measures conditions of the agency's approval; or
(b) Deny the proposal if significant adverse impacts as identified in a final or supplemental environmental impact statement prepared under chapter 197-11 WAC are not satisfactorily avoided or mitigated by proven techniques.
WAC 374-100-110Designation of responsible official.
(1) The responsible official shall carry out duties and functions for the purpose of assuring PLIA's compliance with SEPA and the SEPA rules.
(2) When PLIA is the lead agency, the responsible official shall review the environmental checklist and make the threshold determination in compliance with this chapter, chapters 43.21C RCW and 197-11 WAC, and specifically, WAC 197-11-330.
(3) The responsible official shall carry out further SEPA compliance under WAC 197-11-340, 197-11-350, or 197-11-360, as appropriate. This includes notice and circulation requirements for threshold determinations.
WAC 374-100-120Procedures when consulted.
When a request by another agency for consultation is made pursuant to the provisions of WAC 197-11-912, such request shall be referred for response to the responsible official who shall coordinate the research and field investigations which may be necessary, and supervise the transmittal of the requested information to the lead agency within the time periods specified by WAC 197-11-502.
WAC 374-100-130Severability.
If any provision of this chapter or its application to any person or circumstance is held invalid, the remainder of this chapter, or the application of the provision to other persons or circumstances, shall not be affected.