WSR 97-12-022

EMERGENCY RULES

DEPARTMENT OF ECOLOGY

[Order 97-12--Filed May 28, 1997, 4:38 p.m.]

Date of Adoption: May 28, 1997.

Purpose: To provide definitions of "public health need" and "substantial environmental degradation" (as used in 1997 amendments to RCW 70.146.070) and to outline a process of documenting their existence.

Statutory Authority for Adoption: RCW 70.146.070.

Other Authority: RCW 36.70A.040.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest; and that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

Reasons for this Finding: (a) The bill that made this rule necessary specifically addresses public health; and (b) state law was passed, making this rule necessary to process time-sensitive funding offers to local governments.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 5, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 0, amended 0, repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 0, repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.

Effective Date of Rule: Immediately.

May 28, 1997

Tom Fitzsimmons

Director

WAC 173-95A-010 Purpose and scope.

WAC 173-95A-020 Definitions.

WAC 173-95A-030 Documenting a public health need.

WAC 173-95A-040 Documenting a substantial environmental degradation.

WAC 173-95A-050 Awarding grant and loan funds.

NEW SECTION

WAC 173-95A-010 Purpose and scope. This chapter is intended to address critical or emergent public health needs or environmental problems in jurisdictions that are not in compliance with the Growth Management Act. It implements an exception to the prohibition of counties, cities, and towns that are not in compliance with the Growth Management Act (chapter 36.70A RCW) from receiving grant or loan funds for water pollution control facilities. The exception is provided in limited circumstances, where necessary to address a public health need or substantial environmental degradation.

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NEW SECTION

WAC 173-95A-020 Definitions. (1) "Compliance with the Growth Management Act" means that (a) a county, city, or town that is required or chooses to plan under RCW 36.70A.040 has adopted a comprehensive plan and development regulations in conformance with the requirements of chapter 36.70A RCW, after it is required that the comprehensive plan and development regulations be adopted; and (b) the county, city, or town has not been found out of compliance by a growth management hearings board; or (c) a growth management hearings board has found a county, city, or town in compliance with the requirements of chapter 36.70A RCW, after previously finding the county, city, or town was not in compliance.

(2) "Department" means the department of ecology.

(3) "Public health need" means that a situation exists where (a) there is a documented potential for: (i) Contaminating a source of drinking water; or (ii) failure of existing wastewater system or systems resulting in contamination being present on the surface of the ground in such quantities and locations as to create a potential for public contact; or (iii) contamination of a commercial or recreational shellfish bed as to create a critical public health risk associated with consumption of the shellfish; or (iv) contamination of surface water so as to create a critical public health risk associated with recreational use; and (b) the problem generally involves a serviceable area including, but not limited to, a subdivision, town, city, or county, or an area serviced by on-site sewage disposal systems; and (c) the problem cannot be corrected through more efficient operation and maintenance of an existing wastewater disposal system or systems.

(4) "Substantial environmental degradation" means that (a) there is a situation causing real, documented, critical environmental contamination that (i) contributes to violations of the state's water quality standards; or (ii) interferes with beneficial uses of the waters of the state; and (b) the problem generally involves a serviceable area including, but not limited to, a subdivision, town, city, or county, or an area serviced by on-site sewage disposal systems; and (c) the problem cannot be corrected through more efficient operation and maintenance of an existing wastewater disposal system or systems.

(5) "Water pollution control facility" or "facilities" means any facilities or systems for the control, collection, storage, treatment, disposal, or recycling of wastewater, including but not limited to sanitary sewage, storm water, residential, commercial, industrial, and agricultural wastes, which are causing water quality degradation due to concentrations of conventional, nonconventional, or toxic pollutants. Water pollution control facilities include all equipment, utilities, structures, real property, and interests in and improvements on real property necessary for or incidental to such purpose. Water pollution control facilities also include such facilities, equipment, and collection systems as are necessary to protect federally designated sole source aquifers.

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NEW SECTION

WAC 173-95A-030 Documenting a public health need. For the purposes of this chapter, a public health need related to a grant or loan must be documented by a letter signed by the secretary of the Washington state department of health or his or her designee and addressed to the public official who signed the grant or loan application.

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NEW SECTION

WAC 173-95A-040 Documenting a substantial environmental degradation. For the purposes of this chapter, a substantial environmental degradation related to a grant or loan must be documented by a letter signed by the director of the Department or his or her designee and addressed to the public official who signed the grant or loan application.

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NEW SECTION

WAC 173-95A-050 Awarding grant and loan funds. A county, city or town that has been offered a grant or loan for a water pollution control facility project may not receive grant or loan funds while the county, city, or town is not in compliance with the Growth Management Act unless:

(1) Documentation showing that a public health need has been provided by the Washington state department of health; or documentation showing that a substantial environmental degradation exists has been provided by the Department; and

(2) The county, city or town has provided documentation to the Department that actions or measures are being implemented to address the public health need or substantial environmental degradation; and

(3) The Department has determined that the project is designed to address only the public health need or substantial environmental degradation described in the documentation, and does not address unrelated needs including but not limited to provisions for additional growth.