[Filed October 2, 2019, 11:11 a.m.]

Preproposal statement of inquiry was filed as WSR 17-16-144.

Title of Rule and Other Identifying Information: Chapter 374-80 WAC, Advice and technical assistance program, this proposal amends and expands the agency's technical assistance program to the owners and operators of petroleum underground storage tanks.

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 https://plia.wa.gov/public/ 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 rules@plia.wa.gov, 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 rules@plia.wa.gov, by November 13, 2019.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The pollution liability insurance agency (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's technical assistance program provides expert advice to owners and operators of underground storage tanks in meeting clean-up requirements.

This proposal amends existing rules to expand the scope of advice and technical assistance and to include petroleum storage tanks. The amendments also clarify program procedures to include: (1) How to notify PLIA of suspected and confirmed releases, (2) how PLIA conducts an initial investigation of a heating oil tank release, (3) describes environmental covenants where PLIA is the holder, and (4) identifies the process by which PLIA issues an opinion on whether actions meet the substantive requirements of the Model Toxics Control Act.

Reasons Supporting Proposal: PLIA's technical assistance program has expanded to include additional processes for owners and operators of heating oil tanks. The amended rules also clarify the process[es], procedures, and guidelines for how PLIA operates the program. The title changes also reflect the agency's expansion of the program.

Statutory Authority for Adoption: RCW 70.149.040 (5), (9).

Statute Being Implemented: Not applicable.

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

Name of Proponent: Unknown.

Name of Agency Personnel Responsible for Drafting: Phi V. Ly, 300 Desmond Drive, Lacey, WA 98506, 360-407-0517; Implementation: Kristin Evered, 300 Desmond Drive, Lacey, WA 98506, 360-407-0523; and Enforcement: Carrie Pederson, 300 Desmond Drive, Lacey, WA 98506, 360-407-0519.

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. Cost-benefit analysis not required for existing program. These amended rules provide further clarification of the program procedures.

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.

Chapter 374-80 WAC

((HEATING OIL TANKS))ADVICE AND TECHNICAL ASSISTANCE PROGRAM

AMENDATORY SECTION(Amending WSR 03-06-015, filed 2/21/03, effective 3/24/03)

WAC 374-80-010Authority and purpose.

The purpose of this chapter is to establish a program for providing technical assistance ((to the owners and operators of active or abandoned heating oil tanks if contamination resulting from a release from a heating oil tank is suspected))to a person regarding a release or suspected release of (1) heating oil from an active, decommissioned, or abandoned heating oil tank; or (2) petroleum from a qualified petroleum storage tank system. Under this program, the agency will provide advice and technical assistance regarding a completed or proposed independent remedial action and application of chapter 70.149 or 70.105D RCW.

Any opinion provided by the agency under this program is advisory only and not binding upon either the agency or the department of ecology. Participation in this program is not a settlement with the state under the Model Toxics Control Act. Persons conducting independent remedial actions do so at their own risk, and may be required to take additional remedial actions by the department of ecology if such actions are determined to be necessary under the Model Toxics Control Act.

AMENDATORY SECTION(Amending WSR 97-20-094, filed 9/29/97, effective 10/30/97)

WAC 374-80-020Definitions.

Unless the context requires otherwise, the definitions in this section shall apply throughout this chapter.

(1) "Abandoned heating oil tank" means a consumptive use heating oil tank system that has been abandoned or decommissioned and is no longer in service or use.

(2) "Active heating oil tank" means a consumptive use heating oil tank that is in use.

(3) "Agency" means the Washington state pollution liability insurance agency (PLIA).

(4) (("Corrective action" means those actions reasonably required to be under-taken by an owner or operator 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, 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.

(5)))"Applicant" means the person seeking advice and assistance from the petroleum technical assistance program, whose application has been accepted by the agency.

(5) "Decommissioned heating oil tank" means a heating oil tank system that has been removed from operation by an approved method such as abandonment in place (e.g., cleaning and filling with an inert material) or by removal from the ground.

(6) "Director" means the director of the Washington state pollution liability insurance agency.

(((6)))(7) "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 fuel 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 or waste oil, hoists, pipelines, spills from transportation or a form of transport.

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

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

(9)))(8) "Heating oil tank system" means 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.

(9) "MTCA" means the Model Toxics Control Act, chapter 70.105D RCW and implementing regulations in chapters 173-340 and 173-204 WAC.

(10) "Petroleum" means any petroleum-based substance including crude oil or any fraction that is liquid at standard conditions of temperature and pressure. The term petroleum includes, but is not limited to, petroleum and petroleum-based substances comprised of a complex blend of hydrocarbons, such as motor fuels, jet fuels, distillate fuel oils, residual fuel oils, lubricants, petroleum solvents, used oils, mineral spirits, Stoddard solvents, waste oils and heating oils. The term petroleum does not include propane, asphalt, or any other petroleum product that is not liquid at standard conditions of temperature and pressure. Standard conditions of temperature and pressure are at sixty degrees Fahrenheit and 14.7 pounds per square inch absolute.

(11) "Petroleum storage tank system" means a storage tank system that contains petroleum or a mixture of petroleum with de minimis quantities of other substances. The systems include those containing motor fuels, jet fuels, distillate fuel oils, residual fuel oils, lubricants, petroleum solvents, used oils, and heating oils. "Petroleum storage tank system" does not include any storage tank system regulated under chapter 70.105 RCW.

(12) "Program" means petroleum technical assistance program.

(13) "Qualified petroleum storage tank system" means a storage tank system that has been identified as eligible for services under the petroleum technical assistance program by the department of ecology based on the relative risk posed by the release to human health and the environment.

(14) "Release" means any intentional or unintentional entry of ((heating oil))petroleum into the environment((.

(10) "Service provider" means an independent contractor responsible for site assessment, testing or analysis of the results of testing.

(11) "Site assessment" means an investigation of a heating oil tank site to determine if a release of heating oil has occurred.

(12) "Sampling and testing" means an approved and recognized technique(s) or procedure(s) for measuring or determining the presence and extent of hydrocarbons in soil and/or water.))including, but not limited to, a spill, leak, emission, escape, or leaching into the environment.

(15) "Remedial action" has the same meaning as defined in RCW 70.105D.020.

(16) "Sampling and testing" means a PLIA-approved and recognized technique(s) or procedure(s) for measuring or determining the presence and extent of hydrocarbons in soil and/or water.

(17) "Site" has the same meaning as defined in RCW 70.105D.020.

(18) "Site characterization" means an investigation of the nature and extent of the release.

AMENDATORY SECTION(Amending WSR 03-06-015, filed 2/21/03, effective 3/24/03)

WAC 374-80-040Procedures.

(((1) The agency will provide, as resources permit, technical assistance to the owners and operators of active or abandoned heating oil tanks if contamination resulting from a release from an active or abandoned heating oil tank is suspected. Technical assistance regarding administrative requirements may include observation of testing, site assessment, as well as review of the results of reports and other appropriate review activities approved by the director.

(2) Such technical assistance will be provided only upon request by the owner of a heating oil tank. If the operator of a heating oil tank is not the owner, the operator must provide the agency with specific written authorization of the owner before technical assistance is provided, or before a site is visited by a representative of the agency.

(3) To receive technical assistance under this program, the owner or operator of an active or abandoned heating oil tank must submit an application, provided by the agency, requesting advice and assistance, and agreeing to the terms of the program.

(4) Upon receipt of a request for technical assistance, the agency will provide the tank owner or operator:

(a) Information regarding procedures for the program;

(b) An application requesting technical assistance;

(c) An agreement between the tank owner and the agency regarding the procedures and reimbursement requirements of the program.

(5) Technical assistance provided under the program may include:

(a) Observation of sampling and testing, site assessment or other appropriate assessments scheduled by the tank owner;

(b) Interpretation of the results of testing and/or assessment(s);

(d) Other appropriate activities approved by the director.

(6) The heating oil tank owner or operator will select a service provider to perform sampling and testing, site assessment or other appropriate assessments. The tank owner or operator will enter into an agreement with the service provider regarding scope or extent of work and fees for services.

(7) Technical assistance will be provided only if sampling and testing as well as site assessment are performed in accordance with sampling, testing and assessment protocol approved by the director.

(8) The original copy of the results of all testing and site assessment activities must be forwarded to the agency for review and evaluation.

(9) Upon completion of review and evaluation, the agency will, in writing, inform the heating oil tank owner of the results of review and assessment of data. The agency report will note whether it appears there is or is not contamination present at the site. If contamination is discovered, the report will note whether or not the contamination appears to be a threat to human health and the environment. If the contamination does appear to be a threat to human health and the environment, the heating oil tank owner will be advised of the requirement for corrective action. The determination as to whether or not the contamination appears to be a threat to human health and the environment will be made in accordance with the terms and requirements of the Model Toxics Control Act (chapter 70.105D RCW) and its regulations (chapter 173-340 WAC).))(1) Application. To receive advice and technical assistance under this program, a person who is conducting or otherwise interested in independent remedial actions where there is a suspected or confirmed release of petroleum or heating oil from a qualified petroleum storage tank system or a heating oil tank, must submit an application provided by the agency requesting advice and assistance and agreeing to the terms of the program.

(2) Eligibility. An applicant that has received funding from the PLIA underground storage tank loan and grant program; the heating oil pollution liability insurance program; or the commercial underground storage tank reinsurance program are presumed eligible for the program unless a specific determination is made by PLIA or the department of ecology that the applicant does not have a qualified petroleum storage tank system.

(3) Services. The agency may provide the following advice and technical assistance under the program:

(a) Observe and/or interpret the results of sampling and testing, site characterization results, or other appropriate assessments conducted by the applicant;

(b) Provide technical assistance on how to meet the substantive requirements of MTCA;

(c) Review planned independent remedial actions for a site or property and provide written opinions on whether further remedial action is likely necessary to meet the substantive requirements of MTCA;

(d) Review completed independent remedial actions for a site or property and provide written opinions on whether further remedial action is necessary to meet the substantive requirements of MTCA; and

(e) Other appropriate activities approved by the director.

(4) The applicant may select an independent contractor to perform site characterization, sampling and testing, or other remedial actions. The independent contractor is not to be considered for any purpose an employee or agent of PLIA. The applicant will enter into an agreement with the contractor regarding scope or extent of work and fees for services.

(5) Sampling, testing, and site characterization protocols. The agency will provide requested advice and technical assistance only if sampling, testing, and site characterization are performed in accordance with protocols approved by the director.

(6) Rescinding opinions. The agency may rescind a no further action determination if PLIA's understanding of the conditions at the site change and the site no longer meets the substantive requirements of MTCA.

(a) Where the issues are minor or administrative in nature, the agency will provide the applicant with a notice of suspension detailing the issues to be addressed. The applicant will have sixty days to address the issues. If the issues are addressed to PLIA's satisfaction, the notice of suspension will be removed. If the issues are not addressed to PLIA's satisfaction, the agency will issue a letter rescinding the no further action determination. PLIA may notify the department of ecology of this action.

(b) Where the issues are substantive in nature, the agency will issue a letter rescinding the no further action determination. PLIA will notify the department of ecology of this action.

WAC 374-80-045Environmental covenant.

(1) Consultation. Where PLIA issues a written opinion under this program, and the remedial action requires an environmental covenant, PLIA must consult with and seek comment on the draft environmental covenant from a city or county department with land use planning authority for real property subject to the covenant. The consultation and opportunity for comment must take place before the property owner records the environmental covenant.

(2) Periodic review. Where PLIA has issued a written opinion under this program, and the remedial action requires an environmental covenant, PLIA must conduct a review of the effectiveness of the environmental covenant periodically. The agency must conduct the periodic review at least once every five years.

(3) Violation. If the terms of the environmental covenant are not complied with, the agency may rescind the no further action determination.

(a) Where the issues are minor or administrative in nature, the agency will provide the applicant with a notice of suspension detailing the issues to be addressed. The applicant must address the issues within sixty days. If the issues are addressed to PLIA's satisfaction, the notice of suspension will be removed. If the issues are not addressed to PLIA's satisfaction, the agency will issue a letter rescinding the no further action determination. PLIA may notify the department of ecology of this action.

(b) Where the issues are substantive in nature, the agency will issue a letter rescinding the no further action determination. PLIA will notify the department of ecology of this action.

(4) Termination. If the conditions at the site requiring an environmental covenant no longer exist, the property owner may petition the agency to have the covenant terminated. PLIA will seek public comment on the proposed termination of the environmental covenant. If, after the public comment period, PLIA agrees to termination of the environmental covenant, the agency will seek termination by consent of the covenant.

(5) Reimbursement. The agency may recover costs related to environmental covenants from the applicant and/or the property owner. These costs are not covered by WAC 374-80-050.

AMENDATORY SECTION(Amending WSR 03-06-015, filed 2/21/03, effective 3/24/03)

WAC 374-80-050Reimbursement.

(1) The agency ((shall collect, from the heating oil tank owner or operator requesting technical assistance, the costs incurred in providing such advice and assistance.

(2) Funds received by the agency from cost reimbursement must be deposited in the heating oil pollution liability trust account.

(3) Costs incurred that shall be covered in reimbursement may include travel costs and expenses associated with monitoring site assessment, review of reports and analyses and preparation of written opinions and conclusions. The fee for such technical assistance will be $350.00.

(4) The fee must be paid prior to the agency issuing its report of review and assessment of data.))must collect, from the applicant, a fee to cover the costs incurred in providing advice and technical assistance under the program.

(2) The fee for providing advice and technical assistance under this program is:

(a) One thousand dollars if there is a release or suspected release of heating oil from an active, decommissioned, or abandoned heating oil tank system.

(b) Seven thousand five hundred dollars if there is a release or threatened release of petroleum from a qualified petroleum storage tank system.

(3) The applicant must pay the fee upon acceptance into the program. No advice or technical assistance will be provided until the fee has been paid.

(4) The fee is nonrefundable. However, if the agency determines that an applicant's petroleum storage tank system is ineligible after the applicant enters the program, the agency may refund the fee.

(5) Fees received by the agency under the program must be deposited in the heating oil pollution liability trust account.

The following section of the Washington Administrative Code is repealed: