WSR 97-15-111

PROPOSED RULES

POLLUTION LIABILITY

INSURANCE AGENCY

[Filed July 22, 1997, 9:51 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-12-078.

Title of Rule: Chapter 374-80 WAC.

Purpose: To establish a program for providing informal advice and assistance to owners of heating oil tanks.

Statutory Authority for Adoption: Chapter 70.149 RCW.

Statute Being Implemented: SHB 1007.

Summary: To make available public information regarding liability, as well as technical and environmental requirements associated with heating oil tanks, to owners of properties with active or abandoned heating oil tanks.

Reasons Supporting Proposal: Eliminate what has become a serious problem and an impediment to the conclusion of real estate transactions if the property has an active or abandoned heating oil tank.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: James M. Sims, 1015 10th Avenue, Olympia, WA, (360) 586-5997.

Name of Proponent: Pollution Liability Insurance Agency, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: The purpose of this chapter is to establish a program for providing informal advice and 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.

Proposal does not change existing rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The Pollution Liability Insurance Agency has examined at length the potential economic impact on all parties associated with the proposed rule. The adoption of this proposed rule will not have an adverse economic impact on small business.

RCW 34.05.328 does not apply to this rule adoption. The Pollution Liability Insurance Agency is not one of the major agencies addressed in RCW 34.05.328.

Hearing Location: Pollution Liability Insurance Agency, 1015 10th Avenue S.E., Olympia, WA 98501, on August 28, 1997, at 9:30 a.m.

Assistance for Persons with Disabilities: Contact Washington Relay Number TDD (800) 833-6388.

Submit Written Comments to: Pollution Liability Insurance Agency, P.O. Box 40930, Olympia, 98504, FAX (360) 586-7187, by August 29, 1997.

Date of Intended Adoption: September 29, 1997.

July 21, 1997

James M. Sims

Director

NEW SECTION

WAC 374-80-010 Authority and purpose. The purpose of this chapter is to establish a program for providing informal advice and 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.

[]

NEW SECTION

WAC 374-80-020 Definitions. Unless the context requires otherwise, the deffinitions 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 than is in use.

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

(4) "Corrective action" means those actions reasonably required to be undertaken 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) "Director" means the director of the Washington state pollution liability insurance agency.

(6) "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.

(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) "Release" means any intentional or unintentional entry of heating oil 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.

[]

Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

NEW SECTION

WAC 374-80-030 Communications. All communications with the agency shall be addressed to:

Director

Pollution Liability Insurance Agency

1015 10th Avenue SE

PO Box 40930

Olympia, WA. 98504-0930

Telephone: (360) 586-5997 or (800) 822-3905

[]

NEW SECTION

WAC 374-80-040 Procedures (a) The agency will provide informal advice and 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. Advice and assistance regarding administrative and technical 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.

(b) Such advice and 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 advice and assistance is provided, or before a site is visited by a representative of the agency.

(c) To receive informal advice and 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.

(d) Upon receipt of a request for advice and assistance, the agency will provide the tank owner or operator:

(1) Information regarding procedures for the program;

(2) An application requesting advice and assistance;

(3) An agreement between the tank owner and the agency regarding the terms of the program;

(4) A fee schedule for costs incurred for services under the program;

(5) Sampling, testing and assessment protocol approved by the director;

(5) Suggested service provider fee limits.

(d) Advice and assistance provided under the program may include:

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

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

(3) A report from PLIA to the heating oil tank owner of the results of testing and/or assessment(s); and

(4) Other appropriate activities approved by the director.

(e) 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, and provide a copy of that agreement to PLIA.

(f) Advice and 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.

(g) Advice and assistance will be provided only if a representative of the agency is present during any and all testing and site assessment activity to ensure that tests are properly conducted, samples properly taken and assessment activities correctly conducted. The original copy of the results of all testing and site assessment activities must be forwarded to the agency for review and evaluation.

(h) 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.

[]

Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

NEW SECTION

WAC 374-80-050 Reimbursement (a) The agency shall collect, from the heating oil tank owner or operator requesting advice and assistance, the costs incurred in providing such advice and assistance.

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

(c) Costs incurred that shall be covered in reimbursement may include travel costs and expenses associated with review of reports and preparation of written opinions and conclusions. The director shall establish a fee schedule for costs incurred for services under the program.

(d) Fees must be paid prior to the agency issuing its report of review and assessment of data.

[]

NEW SECTION

WAC 374-80-060 Liability (a) The state of Washington and/or the pollution liability insurance agency accepts no liability, nor portion of liability, from the heating oil tank owner or operator.

(b) The state of Washington, the pollution liability insurance agency, and its officers and employees are immune from all liability, and no cause of action arises from any act or omission in providing, or failing to provide, advice, opinion, conclusion, or assistance under this program.

[]