Title 374 WAC — Pollution Liability Insurance Agency

Chapter 374-10 State financial assurance program.

Wash. Admin. Code § 374-10-010 Purpose.

As authorized by chapter 70A.545 RCW, the purpose of this chapter is to establish criteria and procedures for the payment of costs from the state financial assurance program to address a release from petroleum underground storage tank systems. The agency will administer the program with a focus on release prevention and remediation and the equitable protection of human health and the environment. The program allows petroleum underground storage tank owners and operators to meet financial responsibility requirements.

History

Statutory Authority: RCW 70A.545.100(1). WSR 24-18-050, § 374-10-010, filed 8/27/24, effective 9/27/24.

Wash. Admin. Code § 374-10-020 Definitions.

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

(1) "Agency" means the Washington state pollution liability insurance agency and may be referred to as PLIA throughout this chapter. For purposes of chapter 70A.545 RCW, agency or PLIA shall also mean staff or employees of the pollution liability insurance agency.

(2) "Bodily injury" means actual medically documented costs and medically documentable future costs of adverse health effects that have resulted from exposure to a release from a petroleum underground storage tank. The term does not include pain and suffering.

(3) "Director" means the director or designee of the Washington state pollution liability insurance agency.

(4) "Enrollment" or "enrolled" means the status of a petroleum underground storage tank where it has been accepted by the agency into the state financial assurance program, the enrollment agreement has been signed and payment for the program has been made by the owner or operator of the eligible petroleum underground storage tank.

(5) "Facility" means the property where the enrolled tank is located, including any infrastructure within that property. For purposes of this program, facility does not have the same meaning as WAC 173-340-200.

(6) "Facility assessment" means an evaluation of a petroleum underground storage tank, its system, or the facility.

(7) "Financial assurance request" means a request for payment from the state financial assurance program filed by an owner or operator of an enrolled petroleum underground storage tank.

(8) "MTCA" means the Model Toxics Control Act (chapter 70A.305 RCW).

(9) "Online community" means the cloud-based application and data system used by the agency to submit documentation and to report, process, and look up project information.

(10) "Owner or operator" means the entity in control of, or having a responsibility for, the daily operation of a petroleum underground storage tank.

(11) "Petroleum" means any petroleum-based substance, including crude oil or any fraction that is liquid at standard conditions of temperature and pressure. "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, and used oils. The term 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 60 degrees Fahrenheit and 14.7 pounds per square inch absolute.

(12) "Petroleum underground storage tank" means an underground storage tank regulated under chapter 70A.355 RCW or subtitle I of the Solid Waste Disposal Act (42 U.S.C. chapter 82, subchapter IX) that is used for storing petroleum. This includes tanks owned or operated on property under the direct jurisdiction of either the federal government or governments other nonstate regulating agency. This term does not include any:

(a) Farm or residential tank of 1,100 gallons or less capacity used for storing motor fuel for noncommerical purposes;

(b) Tank used for storing heating oil for consumptive use on the premises where stored;

(d) Pipeline facility (including gathering lines):

(i) Which is regulated under 49 U.S.C. chapter 601; or

(ii) Which is an intrastate pipeline facility regulated under state laws as provided in 49 U.S.C. chapter 601, and which is determined by the Secretary of Transportation to be connected to a pipeline, or to be operated or intended to be capable of operating at pipeline pressure or as an integral part of a pipeline;

(e) Surface impoundment, pit, pond, or lagoon;

(f) Storm water or wastewater collection system;

(g) Flow-through process tank;

(h) Liquid trap or associated gathering lines directly related to oil or gas production and gathering operations;

(i) Storage tank situated in an underground area (such as a basement, cellar, mineworking, drift, shaft, or tunnel) if the storage tank is situated upon or above the surface of the floor;

(j) Tank owned by the federal government or located on a federal military installation or federal military base; or

(k) Tank located within the Hanford Site.

(13) "Petroleum underground storage tank facility" means the location where the petroleum underground storage tank and its system is located. The term encompasses all real property under common ownership associated with the operation of the petroleum underground storage tank.

(14) "Petroleum underground storage tank system" means an underground storage tank, connected underground piping, underground ancillary equipment, and containment system, if any.

(15) "Prime consultant" means an environmental consultant or business contracted by the agency to perform remediation under the program.

(16) "Program" means the state financial assurance program established by chapter 70A.545 RCW.

(17) "Property damage" means a documented adverse physical impact to structures or property resulting from a release from a petroleum underground storage tank. The term does not include business income whose loss is related to the petroleum release or remediation activities.

(18) "Release" has the same meaning as defined in RCW 70A.305.020.

(19) "Remedial action" or "remedy" has the same meaning as defined in RCW 70A.305.020.

(20) "Site" has the same meaning as "facility" as defined in RCW 70A.305.020.

(21) "Third-party claim" means a claim for funds from the program by an injured party for bodily injury or property damages resulting from a release from an enrolled petroleum underground storage tank. The following entities are not considered a third party: A petroleum underground storage tank owner or operator from which the release occurred; the owner of the property where the petroleum underground storage tank is located; a person to whom properties are transferred in anticipation of damage due to a release; employees or agents of the operator; or employees or agents of the property owner.

History

Statutory Authority: RCW 70A.545.100(1). WSR 24-18-050, § 374-10-020, filed 8/27/24, effective 9/27/24.

Wash. Admin. Code § 374-10-030 Eligibility for financial assurance.

(1) To participate in the financial assurance program, the owner or operator of a petroleum underground storage tank must apply and the tank must be enrolled in the program. Enrollment is limited to a petroleum underground storage tank located in Washington. If the owner and operator of the petroleum underground storage tank are separate entities, only one entity at a time may enroll the tank.

(2) To be eligible to participate in the financial assurance program, the petroleum underground storage tank system must meet the following requirements:

(a) Maintain compliance with the requirements of chapter 173-360A WAC, Underground storage tank regulations or federal equivalent.

(b) Be registered with the department of ecology or the United States Environmental Protection Agency.

(3) An owner or operator of an enrolled petroleum underground tank determined to have committed fraud as described in WAC 374-10-130 is ineligible to later enroll that tank.

History

Statutory Authority: RCW 70A.545.100(1). WSR 24-18-050, § 374-10-030, filed 8/27/24, effective 9/27/24.

Wash. Admin. Code § 374-10-040 Application, enrollment, and fees.

(1)(a) Applications for program enrollment are made using the agency's online community. If requested from the agency, alternative formats for application will be provided. The agency will review all applications for completeness. Incomplete applications will not be accepted.

(b) The application must include information on any known release from the petroleum underground storage tank system. If there has been such a release, to be considered for enrollment, one of the following requirements must be met and approved by the agency.

(i) The release has been reported to the department of ecology or other regulating agency as required, and remedial actions have been completed as an independent action or under any order or consent decree. For an independent action, the release and remedial actions have been reviewed by either the department of ecology's voluntary cleanup program or the agency's technical assistance program and a no further action letter has been issued. For remedial actions completed under any order or consent decree, the department of ecology must have issued a written determination that requirements of the order or decree have been met.

(ii) The release has been reported to the department of ecology or other regulating agency as required and independent remedial actions have been planned but not yet completed or independent remedial actions completed but without a no further action letter from the department of ecology's voluntary cleanup program or the agency's technical assistance program. The planned remedial actions must be reviewed by the agency prior to enrollment, and the independent cleanup must be entered into the agency's technical assistance program. A remedial action schedule with milestones will be part of the enrollment agreement and must be adhered to for the tank to remain enrolled in the program.

(iii) The release has been reported to the department of ecology and remedial actions are required under an order or consent decree. The remedial action schedule in the order or consent decree must be adhered to for the tank to remain enrolled in the program.

(2) An enrolled petroleum underground storage tank may be randomly selected for a facility assessment performed by agency staff or agency-contracted consultant. Those selected for a facility assessment will be notified.

(3) The agency will notify the applicant if their application has been accepted for enrollment. The petroleum underground storage tank is considered enrolled in the program on the date that the agency signs the enrollment agreement.

(4) The agency will notify the applicant if their application has been denied. Denial of enrollment will be documented in writing.

(5) The enrollment term is 12 months, with coverage commencing on the enrollment date (the date the agency signs the enrollment agreement). Renewals occur on the same date each subsequent year and coverage is continuous unless the agency or the enrolled owner or operator cancels enrollment.

(6) The enrollment fee pays for the enrollment of a petroleum underground storage tank for a term of 12 months. Program participants may request a payment plan from the agency, but the entire enrollment fee amount must be paid to the agency within the 12-month enrollment term period. No refunds of the enrollment fee will be made, regardless of whether the petroleum underground storage tank coverage is canceled.

(7) The enrollment fees will be updated at least every four years and will be posted on the agency's website. The enrollment fee amount contributes to the agency's costs for program operations and administration.

(8) An enrollment fee may be discounted. Approved discounts are applied following the first year of enrollment on the renewal date for the second year of coverage and evaluated each subsequent year.

(9) Discounts may include, but are not limited to, the following factors:

(a) The age of the facility, individual petroleum underground storage tank system, and associated infrastructure;

(b) The physical condition of the facility; or

(c) Whether the owner or operator adheres to industry best practices for preventing releases from petroleum underground storage tanks.

History

Statutory Authority: RCW 70A.545.100(1). WSR 24-18-050, § 374-10-040, filed 8/27/24, effective 9/27/24.

Wash. Admin. Code § 374-10-050 Cancellation of enrollment.

(1) The agency may cancel enrollment for any of the following reasons:

(a) Failure to maintain the petroleum underground storage tank system or petroleum underground storage tank facility to a standard established in the program policy or enrollment agreement;

(b) Failure to comply with remediation plans agreed to or required by a regulating agency;

(d) Failure to meet any cleanup milestones listed and submitted with the enrollment agreement;

(e) Failure to notify the agency of a release from the enrolled petroleum underground storage tank;

(f) Failure to notify the agency of any notice of noncompliance or notice of violation issued by a regulatory agency;

(g) Failure to allow the agency access to the enrolled petroleum underground storage tank system;

(h) Failure to allow the agency to conduct remedial action(s) related to a release from the enrolled petroleum underground storage tank;

(i) Failure to fulfill terms of the enrollment agreement; or

(j) Fraud by any owner or operator, as described in WAC 374-010-130 regarding the enrolled petroleum underground storage tank.

(2) The agency will provide written notice of cancellation describing the reason(s) for cancellation to the owner or operator of the enrolled petroleum underground storage tank. As applicable, the written notice will identify how to remedy the issues leading to cancellation.

(3) Cancellation by the agency is effective 60 calendar days from the date of written notice. Coverage under the program will end on that effective date unless the cancellation is disputed.

(4) The owner or operator may dispute the cancellation by requesting a review of the agency decision as described in WAC 374-10-140 within 45 calendar days from notice of the cancellation.

(a) Coverage under the program will continue during the dispute review process.

(b) If, after the review of the dispute, the agency determines that a cancellation is still appropriate, cancellation is effective on the date indicated in the dispute review's written notice. Coverage under the program will end on that effective date.

(c) If the owner or operator seeks to appeal the agency's dispute review decision as allowed in WAC 374-10-140(4), the cancellation is still effective as of the date of the dispute review's written notice. Coverage under the program will not continue during the director review process.

(5) The owner or operator of an enrolled petroleum underground storage tank may request cancellation of enrollment at any time. Coverage will continue for the enrollment term, ending on the renewal date.

If the owner or operator uses another financial responsibility mechanism and requires coverage to address a release, this program's coverage is applied as secondary coverage.

(6) If an entity is no longer the owner or operator of the enrolled petroleum underground storage tank, then coverage under the program is canceled and the cancellation date is based on when the entity is no longer the owner or operator.

History

Statutory Authority: RCW 70A.545.100(1). WSR 24-18-050, § 374-10-050, filed 8/27/24, effective 9/27/24.

Wash. Admin. Code § 374-10-060 Financial assurance coverage.

(1) Release from the petroleum underground storage tank after enrollment.

(a) The program will provide financial assurance funds of up to $2,000,000, per tank, for remedial action costs to address a release that occurs after enrollment from a petroleum underground storage tank system, and any other petroleum releases which may be occurring simultaneously at the facility at which the petroleum underground storage tank is located.

A third-party claim will be distributed from these funds. PLIA will determine the timing of any eligible third-party claim payment.

(b) If there is a dispute with the agency determination on timing of the release, the owner or operator must show by clear, cogent, and convincing evidence that a release occurred prior to enrollment.

(c) Failure to provide the agency with a property access agreement from the property owner where the petroleum underground storage tank is located will result in denial of financial assurance funds.

(2) Release from a petroleum underground storage tank prior to enrollment.

(a) The program will provide funds of up to $1,000,000 for remedial action costs to address all releases from a petroleum underground storage tank system that occurred prior to enrollment.

(b) If there is a dispute with the agency determination on timing of the release, the owner or operator must show by clear, cogent, and convincing evidence that a release occurred post enrollment.

(3) Financial assurance coverage shall not exceed $3,000,000 per state fiscal year for multiple occurrences involving a single petroleum underground storage tank.

(4) Priority coverage.

(a) Per RCW 70A.545.020(7), funding for remedial action is prioritized over third-party costs. The agency must reserve the estimated costs of necessary remedial actions, and then payment may be made on eligible third-party costs.

(b) Per RCW 70A.545.020(6), the agency may prioritize program funding for investigations and remedial actions deemed necessary to address:

(i) An emergency which threatens human health or the environment; or

(ii) A population threatened by the release that includes an overburdened community, as defined in RCW 70A.02.010(11), or a vulnerable population, as defined in RCW 70A.02.010(14).

(5) Once a no further action letter is issued by the agency's technical assistance program for the release from the enrolled petroleum underground storage tank, the financial assurance coverage is complete, and funding will no longer be available.

History

Statutory Authority: RCW 70A.545.100(1). WSR 24-18-050, § 374-10-060, filed 8/27/24, effective 9/27/24.

Wash. Admin. Code § 374-10-070 Financial assurance request.

(1) All program participants must review and reference the program policy guidance prior to requesting coverage from the financial assurance program. The agency maintains this document on its website.

(2) An owner or operator of an enrolled petroleum underground storage tank must report a suspected or confirmed release to the department of ecology as required under WAC 173-360A-0700 and 173-360A-0750, or other regulating agency as required by federal law.

(3) To obtain financial assurance funding, a financial assurance request form must be filed with the agency after initial reporting to department of ecology or regulating agency under federal law. An access agreement from the owner of the property where the petroleum underground storage tank is located is required as part of the financial assurance request form.

(4) In a situation where a federal, state, or other regulating agency has responded to the release, this information must be included in the financial assurance request.

(5) The agency will open a financial assurance request case. The agency will conduct a review to determine if the release meets conditions for coverage and whether coverage is for release after enrollment or for release prior to enrollment.

(6) The agency will notify the program participant that the financial assurance request has been accepted and a project manager and site manager have been assigned.

(7) The remedial work conducted will meet the substantive and timing requirements of WAC 173-340-450 Releases from regulated underground storage tank systems or, for releases in Indian country, 40 C.F.R. subtitle 280 Subparts E and F.

(8) Once a no further action letter is issued by the agency's technical assistance program for the release from the enrolled petroleum underground storage tank, the financial assurance request is considered finished and funding will no longer be available.

(9) The owner or operator must accept the schedule and milestones created by the agency to maintain coverage for the release. Failure to accept the schedule and milestones set by the agency may result in cancellation of enrollment and ineligibility of the release to qualify for financial assurance funds.

(10) The owner or operator must provide access for the agency to the property where the enrolled petroleum underground storage tank is located. Failure to provide an access agreement for the property will result in cancellation of enrollment and ineligibility of the release to qualify for financial assurance funds.

(11) To address the release from an enrolled petroleum underground storage tank, the agency may need access and an agreement for the agency to conduct remedial actions on neighboring property not owned by the tank owner or operator. The agency will ask for an access agreement, including an agreement to allow for remedial actions. If access and/or an agreement to allow for remedial actions is denied, the agency will limit remediation to the property where the enrolled petroleum underground storage tank is located. Once that remediation is completed and a no further action letter is issued by the agency's technical assistance program, financial assurance funds will no longer be available.

History

Statutory Authority: RCW 70A.545.100(1). WSR 24-18-050, § 374-10-070, filed 8/27/24, effective 9/27/24.

Wash. Admin. Code § 374-10-080 Eligible third-party claims.

(1) A third-party claim relating to a release prior to enrollment from a petroleum underground storage tank will not be eligible for funds under this program. The owner or operator of an enrolled petroleum underground storage tank or a third party have the burden to show the release occurred post enrollment by clear, cogent, and convincing evidence.

(2) For a third-party property claim to be eligible, the following requirements must be met:

(a) If applicable, the third party must consent to property access and sign the access agreement.

(b) If applicable, the third party must allow remediation work to occur on their property.

(c) An agreement that the agency may conduct an audit of any claim honored by the agency and that the third party will reimburse the agency for any disallowance of costs occasioned by such an audit. The third party must also agree to retain all records pertaining to the claim for a period determined by the agency, of at least three years after final payment on the claim, and to provide the records to the agency upon request. The three-year period shall be extended until the completion of any audit in progress.

(3) A financial assurance third-party request form must be submitted before the release receives a no further action letter from the agency's technical assistance program.

(4) After submittal of a financial assurance third-party request form, the agency will send notification of approval or denial of the request.

(a) The third party must report any legal claims against the owner or operator of the enrolled petroleum underground storage tank system when filing for financial assurance coverage. All legal claims for costs and damages resulting from a release from the enrolled petroleum underground storage tank must be completed or settled prior to seeking financial assurance coverage.

(b) The third party shall make available to the agency upon request all documentation of property damage necessary to prove that the property damage is reimbursable. This includes, but is not limited to, pleadings, or any other documents filed in any lawsuit for property damage or bodily injury.

(c) The third party shall make available to the agency upon request documentation of bodily injury to include medical reports, statements, investigative reports, or certifications from licensed health professionals necessary to prove that third-party bodily injuries are reimbursable.

History

Statutory Authority: RCW 70A.545.100(1). WSR 24-18-050, § 374-10-080, filed 8/27/24, effective 9/27/24.

Wash. Admin. Code § 374-10-090 Eligible and ineligible costs.

(1) Eligible and ineligible costs are listed in the program guidance.

(2) Eligible costs covered by the financial assurance program include, but are not limited to, the following:

(a) Remedial action performed by an agency prime consultant for releases from a petroleum underground storage tank and its system. Actions may include excavation, treatment and/or removal and proper disposal of any soil or water contaminated by the accidental release, as well as proper disposal of nonrepairable petroleum underground storage tank.

(b) Remedial action costs performed by a consultant under contract to the program participant provided that the remedial action has been approved by PLIA prior to the work being conducted, the costs are in compliance with task-based pricing set by the agency, and the agency determines that the remedial action being conducted by the program participant's consultant will expedite cleanup at the site.

(d) Remedial action costs incurred by state, federal, or tribal agencies in responding to the release from the enrolled petroleum underground storage tank.

(e) Testing, monitoring, and assessments.

(f) Third-party costs as defined in WAC 374-10-080.

(g) Necessary infrastructure, petroleum underground storage tank, or petroleum underground storage tank system replacement costs are only considered eligible costs under WAC 374-10-060 (1)(a). Any such replacement must meet the current standards for such tank systems, as specified in program guidance.

(h) Replacement of some surface features required by municipal law, including surface asphalt and concrete, curbs or lanes, and stormwater drainage.

(3) Ineligible costs include, but are not limited to, the following:

(a) Penalties or fines assessed by other local, state, federal, or other regulating agencies.

(b) Third-party cost recovery under MTCA, CERCLA, and lawsuits that is not permitted by WAC 374-10-080 or not an eligible cost reimbursement for a state, federal, or other regulating agency.

(d) Lost business income related to the release or remediation.

(e) Cleanup of contamination from other sources, unless the agency determines that it is necessary to complete remediation of a release from an enrolled petroleum underground storage tank.

(f) Legal 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, Washington state, or a political subdivision of the United States or Washington state to require remedial action or to recover costs of remedial action; or

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

History

Statutory Authority: RCW 70A.545.100(1). WSR 24-18-050, § 374-10-090, filed 8/27/24, effective 9/27/24.

Wash. Admin. Code § 374-10-100 Agency-led remediation.

(1) The owner or operator of a nonenrolled petroleum underground storage tank system, or owner of a property with either a nonenrolled petroleum underground storage tank system or a past release that has been reported to the department of ecology, may submit an agency-led remediation request. An agency-led remediation project will involve the agency conducting remediation related to a release from the petroleum underground storage tank. The agency may seek cost recovery following completion of the remedial actions. This is intended to address properties without viable funding sources to address contamination where the contamination may be impacting drinking water or vulnerable communities.

(2) To qualify for an agency-led remediation request, the owner or operator, or owner of the property, must show the following:

(a) Per RCW 70A.545.060(1)(a), the release occurs in an area of risk for drinking water impacts or where addressing the release is necessary to equitably protect human health and the environment in communities that have been marginalized, overburdened, and underserved;

(b) The owner or operator, or owner of the property where the petroleum underground storage tank is located, has provided consent for the agency to:

(i) Conduct the remedial actions;

(ii) Enter upon the real property to conduct the remedial actions; and

(iii) Recover the costs of the remedial actions from the owner or operator or potentially liable persons; and

(3) The agency may accept an agency-led remediation request per the director's discretion, subject to program funding availability.

History

Statutory Authority: RCW 70A.545.100(1). WSR 24-18-050, § 374-10-100, filed 8/27/24, effective 9/27/24.

Wash. Admin. Code § 374-10-110 Cost recovery.

The agency may recover the costs of remedial actions conducted under the program by use of cost recovery options in the Model Toxics Control Act, RCW 70A.305.080, 70A.545.060, and 70A.545.070, or other applicable federal or state laws.

History

Statutory Authority: RCW 70A.545.100(1). WSR 24-18-050, § 374-10-110, filed 8/27/24, effective 9/27/24.

Wash. Admin. Code § 374-10-120 Overpayments.

(1) The agency may require an owner or operator to return any cost overpayment made by the program. Overpayments may occur if:

(a) Another party, such as an insurer, has paid costs prior to payments from the program; or

(b) The agency discovers an accidental overpayment has been made to an owner or operator for any reason.

(2) If a cost overpayment is not paid upon demand, the agency may pursue the following actions:

(a) Collections. The agency may request cost recovery with a debt collection agency.

(b) Lien filing. The agency may seek cost recovery of remedial action costs by filing a lien on the petroleum underground storage tank facility as authorized under RCW 70A.545.070.

(c) Civil action. The agency may request the attorney general office to commence a civil action against the owner or operator in superior court to recover costs and the agency's administrative and legal expenses to pursue recovery.

History

Statutory Authority: RCW 70A.545.100(1). WSR 24-18-050, § 374-10-120, filed 8/27/24, effective 9/27/24.

Wash. Admin. Code § 374-10-130 Fraud and material omissions.

(1) The agency may seek return of payments made if:

(a) Any party misrepresents or omits material facts relevant to the agency's determination of coverage; or

(b) Any party, with intent to defraud, initiates a financial assurance request or issues or approves an invoice or request for payment, with knowledge that the information submitted is false in whole or in part.

(2) If the agency determines that any party has committed program fraud or omitted material information relevant to financial assurance program enrollment or payment of remediation costs, the agency may request the attorney general's office to:

(a) File a lien on the petroleum underground storage tank facility or other property owned by the owner or operator to recover the amount of payment that occurred as a result of the fraud or omission;

(b) Commence a civil action against the person in superior court; or

(3) If the agency determines that the owner or operator of an enrolled petroleum storage tank omitted material facts or intentionally defrauded the program, it will cancel enrollment of the affected petroleum tank, and any person or party determined to have committed program fraud may be prohibited from applying for future enrollment. The agency will report instances of fraud to the appropriate authorities including criminal referral for prosecution.

(4) Any party participating in the program must agree to allow the agency to conduct financial audits related to the receipt of payments intended for remedial actions and to produce records as requested by the agency.

History

Statutory Authority: RCW 70A.545.100(1). WSR 24-18-050, § 374-10-130, filed 8/27/24, effective 9/27/24.

Wash. Admin. Code § 374-10-140 Review of initial agency decisions.

(1) Review of the following initial agency decisions may be requested, in writing, to the agency's legislative and policy manager:

(a) Denial of program eligibility;

(b) Cancellation of enrollment in the program or denial of reenrollment;

(d) Amount of payment allowed for remedial actions;

(e) Eligibility and amount of payment allowed for a third-party claim;

(f) Agency requests for costs repayment under WAC 374-10-120; or

(g) Other agency program decisions detailed in the program policy guidance.

(2) Review of these initial agency decisions may be requested within 45 days by an applicant, the owner or operator of an enrolled petroleum underground storage tank system, or a third-party claimant.

(3) The written request must specify the basis for review and meet the agency's procedures outlined in the program policy guidance.

(4) If the applicant or participant seeks to appeal the final agency determination, the applicant or participant has 60 days after the agency determination to submit a written request to the director for an adjudicative hearing under chapter 34.05 RCW.

History

Statutory Authority: RCW 70A.545.100(1). WSR 24-18-050, § 374-10-140, filed 8/27/24, effective 9/27/24.

Chapter 374-20 Public records.

Wash. Admin. Code § 374-20-010 Purpose.

The purpose of this chapter is to implement those provisions of chapter 42.56 RCW relating to access to public records.

History

Statutory Authority: Chapter 42.56 RCW. WSR 20-02-005, § 374-20-010, filed 12/18/19, effective 1/18/20. Statutory Authority: RCW 42.17.250. WSR 90-14-019 (Order 90-4), § 374-20-010, filed 6/27/90, effective 7/28/90.

Wash. Admin. Code § 374-20-020 Definitions.

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

(1) The terms "public record" and "writing" have the same meanings as stated in RCW 42.17A.005.

(2) "Agency" means the pollution liability insurance agency established pursuant to chapters 70A.325 and 70A.330 RCW and shall also mean staff or employees of the pollution liability insurance agency.

(3) "Director" means the director of the agency.

(4) "Public records officer" means the designated records manager of the agency.

(5) "Designee" means the employee of the agency designated by the director or the public records officer to serve as the public records officer at the agency in the absence of the officer.

History

Statutory Authority: RCW 70A.01.010 and 70A.01.020. WSR 22-01-069, § 374-20-020, filed 12/9/21, effective 1/9/22. Statutory Authority: Chapter 42.56 RCW. WSR 20-02-005, § 374-20-020, filed 12/18/19, effective 1/18/20. Statutory Authority: RCW 42.17.250. WSR 90-14-019 (Order 90-4), § 374-20-020, filed 6/27/90, effective 7/28/90.

Wash. Admin. Code § 374-20-030 Description of organization.

(1) The agency's mailing address is:

Pollution Liability Insurance Agency

State of Washington

P.O. Box 40930

Olympia, Washington 98504-0930

The agency's office is located at:

500 Columbia St. N.W.

Olympia, WA 98501

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

(3) The agency implements and administers the pollution liability insurance programs established by chapters 70A.325, 70A.330, and 70A.345 RCW.

(4) Any person wishing to request access to public records of the agency, or seeking assistance in making such a request, should contact the public records officer of the pollution liability insurance agency using one of the following contact methods by mail:

PLIA Public Records Officer

P.O. Box 40930

Olympia, WA 98504-0930

Phone: 800-822-3905

Email: pliamail@plia.wa.gov.

A request form is available on the agency's website at www.plia.wa.gov.

(5) The public records officer will oversee compliance with the Public Records Act, chapter 42.56 RCW. The agency will provide the fullest assistance to requestors; create and maintain an index to public records of the agency for use by the public and agency officials; ensure that public records are protected from damage or disorganization; and prevent fulfilling public records requests from causing excessive interference with essential functions of the agency.

History

Statutory Authority: RCW 70A.01.010 and 70A.01.020. WSR 22-01-069, § 374-20-030, filed 12/9/21, effective 1/9/22. Statutory Authority: Chapter 42.56 RCW. WSR 20-02-005, § 374-20-030, filed 12/18/19, effective 1/18/20. Statutory Authority: RCW 42.17.250. WSR 90-14-019 (Order 90-4), § 374-20-030, filed 6/27/90, effective 7/28/90.

Wash. Admin. Code § 374-20-040 Public records available.

(1) Times for inspection of records. Public records are available for inspection and copying during agency business hours of Monday through Friday, 8:00 a.m. to 5:00 p.m., excluding legal holidays. Records must be inspected at the office of the agency. Many public records are also available for inspection and copying on the agency's website at any time, at no cost.

(2) Records index. An index of public records, as described in WAC 374-20-050, is available for use by members of the public. The index may be accessed online at www.plia.wa.gov.

(3) Organization of records. The agency will maintain its records in a reasonably organized manner. The agency will take reasonable actions to protect records from damage and disorganization. A requestor shall not take agency records from the agency's office without the permission of the public records officer or designee. A variety of records are available on the agency's website at www.plia.wa.gov. Requestors are encouraged to view the documents available on the website before submitting a records request.

(4) No duty to create records. The agency is under no obligation to create a new public record to satisfy a records request. Translating a record into an alternative electronic format at the request of a requestor does not constitute a new public record. Scanning paper copies to make electronic copies is a method of copying paper records and does not create a new public record.

History

Statutory Authority: Chapter 42.56 RCW. WSR 20-02-005, § 374-20-040, filed 12/18/19, effective 1/18/20. Statutory Authority: RCW 42.17.250. WSR 90-14-019 (Order 90-4), § 374-20-040, filed 6/27/90, effective 7/28/90.

Wash. Admin. Code § 374-20-050 Records indexes.

The records retention schedule established by the division of state archives of the office of the secretary of state serves as an index for the identification and location of the agency's records, including those described in RCW 42.56.070(5).

The records retention schedule indexes records according to the record series title. Each title is further identified by a statement of function or purpose, and the retention period. The records retention schedule is available to the public for inspection and copying. With the assistance of the public records officer or designee, any person can access the agency's public records using the records retention schedule.

Policy statements and interpretive statements entered after June 30, 1990, and as defined in RCW 34.05.010, are indexed by number and subject matter and are available on the agency's website.

History

Statutory Authority: Chapter 42.56 RCW. WSR 20-02-005, § 374-20-050, filed 12/18/19, effective 1/18/20. Statutory Authority: RCW 42.17.250. WSR 90-21-051 (Order 90-9), § 374-20-050, filed 10/15/90, effective 11/15/90. Statutory Authority: RCW 42.17.250. WSR 90-14-019 (Order 90-4), § 374-20-050, filed 6/27/90, effective 7/28/90.

Wash. Admin. Code § 374-20-060 Making a request for public records.

(1) Any person wishing to inspect or copy public records of the agency must make the request in writing using the agency's request form, the agency's online portal, by letter, fax, or email addressed to the agency public records officer. The written request must include:

(a) Name of requestor;

(b) Address of requestor;

(d) Identification of the requested public record(s) adequate for the public records officer or designee to locate the records;

(e) Whether the requestor is asking to inspect the record(s) or for copies;

(f) Whether the requestor would like an estimate of applicable charges before any copies are made; and

(g) The date and time of day of the request.

(2) A records request form is available for use by requestors at the office of the public records officer and online at www.plia.wa.gov.

(3) If the requestor refuses to identify themselves or provides insufficient contact information, the agency will respond to the extent feasible and consistent with the law.

History

Statutory Authority: Chapter 42.56 RCW. WSR 20-02-005, § 374-20-060, filed 12/18/19, effective 1/18/20. Statutory Authority: RCW 42.17.250. WSR 90-14-019 (Order 90-4), § 374-20-060, filed 6/27/90, effective 7/28/90.

Wash. Admin. Code § 374-20-070 Fees.

(1) No fee shall be charged for the inspection of public records, including inspecting records on the agency's website.

(2) In order to avoid unduly burdensome fee calculations, the agency will implement a fee schedule consistent with the Public Records Act. The agency adopts the state legislature's approved fees and costs for most of the agency records, as authorized in RCW 42.56.120 and as published in the agency's fee schedule.

(3) The fee schedule is available at the agency's office and on the agency's website at www.plia.wa.gov.

(4) The agency will charge for copies of records pursuant to the default fees in RCW 42.56.120 (2)(b) and (c). The agency will charge for customized services pursuant to RCW 42.56.120(3). Under RCW 42.56.130, the agency may charge other copy fees authorized by statutes outside of chapter 42.56 RCW. The agency may enter into a contract, memorandum of understanding, or other agreement with a requestor that provides an alternative fee arrangement to the charges, or in response to a voluminous or frequently occurring request as allowed by RCW 42.56.120(4).

(5) A requestor may ask the agency to provide a summary of the applicable charges before any copies are made or before processing a customized service. The requestor may revise the request to reduce the number of copies to be made and reduce the applicable charges.

(6) Requestors are required to pay for copies in advance of receiving records. Fee waivers are an exception and are available for some smaller requests. If a fee waiver is requested, the requestor must submit the fee waiver request in writing describing how the conditions are met. A determination by the public records officer to waive all or part of copying fees will be made on a case-by-case review of the fee waiver request.

(a) To request a fee waiver, the requestor must submit the request in writing to the agency, describing how at least one of the conditions set forth in (b) of this subsection are met. If the public records officer determines condition(s) for a fee waiver are met, that decision will be documented in writing.

(b) The public records officer may grant a fee waiver request under the following conditions:

(i) All of the records responsive to an entire request are paper copies only and are twenty-five or fewer pages;

(ii) All of the records for an entire request are electronic and can be provided in a single email with attachments of a size equivalent to up to one hundred printed pages; or

(iii) The records responsive to an entire request consists of a number of duplicate documents.

(7) Before beginning to make the copies or processing a customized service, the public records officer or designee may require a deposit of up to ten percent of the estimated costs of copying all the records selected by the requestor. The public records officer or designee may also require the payment of the remainder of the copying costs before providing all the records, or the payment of the costs of copying an installment before providing that installment. The agency does not charge sales tax when it makes copies of public records.

(8) All required fees must be paid in advance of release of the copies or an installment of copies. The agency will notify the requestor of when payment is due.

(9) The agency may also charge actual costs of mailing, including the costs of the shipping container.

(10) Payment should be made by check or money order to the pollution liability insurance agency. The agency prefers not to receive cash. For cash payments it is within the public record officer's discretion to determine the denomination of bills and coins that will be accepted.

(11) The agency will close a request when a requestor fails by the payment date to pay in the manner prescribed for records, an installment of records, or a required deposit.

History

Statutory Authority: Chapter 42.56 RCW. WSR 20-02-005, § 374-20-070, filed 12/18/19, effective 1/18/20. Statutory Authority: RCW 42.17.250. WSR 90-14-019 (Order 90-4), § 374-20-070, filed 6/27/90, effective 7/28/90.

Wash. Admin. Code § 374-20-075 Responses to public records requests.

(1) The agency is prohibited by statute from disclosing lists of individuals for commercial purposes.

(2) Upon receipt of a request, the agency will assign a tracking number and record the request into the agency's public records request log.

(3) The public records officer or designee will evaluate the request according to the nature of the request, volume, and availability of requested records. The agency will process requests in the order that allows the largest number of requests to be processed in the most efficient manner.

(4) Following the initial evaluation of the request under subsection (3) of this section, and within five business days of receipt of the request, the public records officer or designee will do one or more of the following:

(a) Make the records available for inspection or copying including:

(i) If copies are available on the agency's website, providing the internet site or link to the specific records requested;

(ii) If copies are requested and the required fee is paid, send the copies to the requestor;

(b) Acknowledge receipt of the request and provide a reasonable estimate of when records or an installment of records will be available. The public records officer or designee may revise the estimate of when records will be available; or

(c) Acknowledge receipt of the request and ask the requestor to provide clarification for anything unclear, and provide to the greatest extent possible, a reasonable estimate of the time the agency will require to respond to the request if it is not clarified.

(i) Such clarification may be requested and provided by telephone, and recorded in writing;

(ii) If the requestor fails to respond to the agency's request for clarification and the entire request is unclear, the agency need not respond to it.

(d) The agency will respond to those portions of the request that are clear or deny the public record request.

(5) If the agency does not respond in writing within five business days of receipt of the request, then the requestor should contact the public records officer to determine the reason for the failure to respond.

(6) If the requested records contain information that may affect rights of others and are exempt from disclosure, then the public records officer may, prior to providing the records, give notice to the person with affected rights. This notice will include sufficient information so that the affected person(s) may contact the requestor and ask him or her to revise the request, or, if necessary, seek a court order to prevent or limit the disclosure. The notice to the affected person(s) will include a copy of the request.

(7) Some records are exempt from disclosure, in whole or in part. If the agency believes that a record is exempt from disclosure and should be withheld, the public records officer will state the specific exemption and provide a brief written explanation of why the record or a portion of the record is being withheld. If only a portion of a record is exempt from disclosure, but the remainder is not, the public records officer will redact the exempt portions, provide the nonexempt portions, and provide an explanation for the redaction.

(8) The agency shall provide a viewing area to inspect public records, provided that doing so does not unduly burden the operation of the agency. No member of the public may remove a document from the viewing area or disassemble or alter any document. The requestor will indicate which documents he or she wishes the agency to copy. The requestor must claim or review the assembled records within ten business days of the agency's issuance of the notice of availability. If the requestor or a representative of the requestor fails to claim or review the records within the ten business day period, the agency will close the request and refile the assembled records. Other public records requests can be processed ahead of a subsequent request by the same person for the same or almost identical records, which will be processed as a new request.

(a) After inspection is complete, the public records officer or designee shall make copies or arrange for copying. In accordance with the charge for copies set out in WAC 374-20-070, the requestor must pay the appropriate fee before the agency will release the copies.

(b) When the inspection of the requested records is complete and any requested copies are provided, the public records officer or designee will indicate in writing that the agency has conducted a reasonable search for the requested records, made the nonexempt records available for inspection, and closed the request.

(9) While not required, and with the consent of the requestor, the agency may decide to provide customized electronic access services and assess charges under RCW 42.56.120 (2)(f). A customized service charge applies only if the agency estimates that the request would require the use of information technology expertise to prepare data compilations, or provide customized electronic access services when such compilations and customized access services are not used by the agency for other purposes. The agency may charge a fee consistent with RCW 42.56.120 (2)(f) for such customized access.

(10) When electronic records are requested, the agency will provide the nonexempt records or portions of such records that are reasonably locatable in an electronic format that is used by the agency and is generally commercially available, or at the agency's discretion, in a format that is reasonably translatable from the format in which the agency keeps the records. The agency is under no obligation to convert electronic records to a specific format identified by the requestor. When metadata is requested, the agency will provide the records in a native file format that preserves metadata where technically feasible. Metadata may be unavailable for records that require conversion to a nonnative format in order to apply exemptions.

(11) When it appears that the number of records responsive to a request may be large, that the process of locating, assembling, or reviewing the records may be lengthy, or that it is otherwise appropriate, the agency may provide records on an installment basis. The agency may wait to locate and assemble additional records in an installment until the requestor has claimed or inspected the previous installment. If an installment is not claimed or inspected within ten business days of the notice of availability, the agency may close the request.

(12) When the requestor: Withdraws the request, fails to clarify an entirely unclear request, fails to fulfill his or her obligations to inspect the records, or pay the deposit, the required fees for an installment, or make final payment for the requested copies, the public records officer will close the request. The agency will indicate to the requestor that the agency has closed the request unless the requestor received previous correspondence stating that the request would be closed under the above circumstances.

(13) If, after the agency has informed the requestor that it has provided all available records, the agency becomes aware of additional responsive documents existing at the time of the request, it will promptly inform the requestor of the additional documents and provide these on an expedited basis.

History

Statutory Authority: Chapter 42.56 RCW. WSR 20-02-005, § 374-20-075, filed 12/18/19, effective 1/18/20.

Wash. Admin. Code § 374-20-076 Notice of availability.

(1) Once record(s) responsive to a request or any installment thereof have been located, assembled, reviewed, and prepared for release, and any affected parties notified, the agency will notify the requestor that those record(s) are available for inspection or copying.

(2) If the request asked for inspection of the record(s), then upon receipt of a notice of availability, the requestor may inspect records by scheduling a viewing appointment with the public records officer or designee.

(3) If the requestor asked for copies of the record(s), then the notice of availability will state the costs required to be paid and any other allowable costs under WAC 374-20-070 or the Public Records Act, before release of copies of the records.

(4) If the requestor asked for a summary of applicable charges before any copies are made, then the notice of availability will state the estimated costs to make copies of the record(s) pursuant to WAC 374-20-070. The requestor must inform the agency if it would like copies of the identified record(s). The requestor may revise the request to reduce the number of copies to be made thus reducing the applicable charges.

(5) If, within ten business days of the agency's issuance of a notice of availability, the requestor fails to claim the records (or any installment thereof) by either scheduling a viewing appointment, making any required payment and picking up copies, or by requesting copies of the record(s), then the agency will close the request.

History

Statutory Authority: Chapter 42.56 RCW. WSR 20-02-005, § 374-20-076, filed 12/18/19, effective 1/18/20.

Wash. Admin. Code § 374-20-080 Statement of reasons for denial of public records request.

(1) When the agency denies, in whole or in part, a written records request, it shall cite the specific exemption authorizing the refusal and provide a brief explanation of how the exemption applies to the record withheld.

(2) The agency will maintain on its website www.plia.wa.gov a list of the "other statute" exemptions from disclosure, outside those found in the Public Records Act, which may be applied to specific information or records of the agency. This list is for informational purposes only, and failure to list an exemption shall not affect the ability of any exemption used by the agency.

(3) The agency may deny a "bot" request, if the agency establishes that responding would cause excessive interference with other essential agency functions. A "bot" request is one of multiple records requests from a requestor to the agency within a twenty-four hour period which the agency reasonably believes was automatically generated by a computer program or script.

History

Statutory Authority: Chapter 42.56 RCW. WSR 20-02-005, § 374-20-080, filed 12/18/19, effective 1/18/20. Statutory Authority: RCW 42.17.250. WSR 90-14-019 (Order 90-4), § 374-20-080, filed 6/27/90, effective 7/28/90.

Wash. Admin. Code § 374-20-090 Reviews of denials of public records request.

(1) Petition for internal administrative review of denial of access. Any requestor who objects to any denial of a records request may petition in writing to the public records officer for a review of that decision. The petition shall include a copy of, or reasonably identify, the written statement by the public records officer or designee denying the request.

(a) The public records officer shall promptly provide the petition and any other relevant information to the agency official designated by the director to conduct the review.

(b) The agency official will immediately consider the petition and either affirm or reverse the denial within two business days following the agency's receipt of the petition, or within such other time as the agency and the requestor mutually agree to.

(2) Review by the attorney general's office. Pursuant to RCW 42.56.530, if the agency denies a requestor access to public records because it claims the record is exempt in whole or in part from disclosure, the requestor may request the attorney general's office to review the matter. The attorney general has adopted rules on such requests in WAC 44-06-160.

(3) Judicial review. Any person may obtain court review of denials of public records requests pursuant to RCW 42.56.550 at the conclusion of two business days after the initial denial regardless of any internal administrative appeal.

History

Statutory Authority: Chapter 42.56 RCW. WSR 20-02-005, § 374-20-090, filed 12/18/19, effective 1/18/20. Statutory Authority: RCW 42.17.250. WSR 90-14-019 (Order 90-4), § 374-20-090, filed 6/27/90, effective 7/28/90.

Wash. Admin. Code § 374-20-100 Protection of public records.

In order to protect the public records of the agency, the following guidelines shall be adhered to by any person inspecting such public records:

(1) No public records shall be removed from the agency's premises.

(2) Inspection of any public record shall be conducted in the presence of a designated agency employee.

(3) No public records may be marked or defaced in any manner during inspection.

(4) Public records which are maintained in a file or jacket, or chronological order, may not be dismantled except for purposes of copying and then only by the public records officer or designee.

(5) Access to file cabinets, shelves, vaults, and other storage areas is restricted to office personnel, unless other arrangements are made with the public records officer or designee.

History

Statutory Authority: RCW 42.17.250. WSR 90-14-019 (Order 90-4), § 374-20-100, filed 6/27/90, effective 7/28/90.

Chapter 374-30 Reserves.

Wash. Admin. Code § 374-30-010 Authority and purpose.

This chapter is promulgated under the authority conferred by RCW 70A.325.060. The purpose of this chapter is to implement those provisions of chapter 70A.325 RCW as amended by Substitute House Bill No. 2609 (chapter 64, Laws of 1990) relating to the establishment of reserves for the pollution liability insurance program.

History

Statutory Authority: RCW 70A.01.010 and 70A.01.020. WSR 22-01-069, § 374-30-010, filed 12/9/21, effective 1/9/22. Statutory Authority: RCW 70.148.040. WSR 90-14-020 (Order 90-5), § 374-30-010, filed 6/27/90, effective 8/1/90.

Wash. Admin. Code § 374-30-020 Definitions.

Unless the context requires otherwise, the following definitions shall apply:

(1) "Claim" means a properly filed request for insurance benefits made by the holder of a pollution liability insurance policy issued by an insurer with whom the pollution liability insurance program has executed a contract for reinsurance.

(2) "Director" means the director of the pollution liability insurance agency and program appointed by the governor pursuant to chapter 70A.325 RCW, or a person designated to act on the director's behalf.

(3) "Insurer" means a commercial property and casualty insurance company, risk retention group, or group of insurance companies or risk retention groups.

(4) "Loss reserve" means the amount traditionally set aside by insurers for costs and expenses related to claims that have been made.

(5) "Program" means the pollution liability insurance program created in chapter 70A.325 RCW.

(6) "Surplus reserve" means the amount traditionally set aside by insurers to provide financial protection from unexpected losses and to serve, in part, as a measure of an insurer's net worth.

(7) "Unrestricted trust account balance" means the cash balance in the pollution liability insurance program trust account created in RCW 70A.325.020 less reserves established under this chapter.

History

Statutory Authority: RCW 70A.01.010 and 70A.01.020. WSR 22-01-069, § 374-30-020, filed 12/9/21, effective 1/9/22. Statutory Authority: RCW 70.148.040. WSR 90-14-020 (Order 90-5), § 374-30-020, filed 6/27/90, effective 8/1/90.

Wash. Admin. Code § 374-30-030 Loss reserves—Establishment and adjustment.

(1) When the director is notified by an insurer with whom a reinsurance contract has been entered into that claims have been made by policyholders, the director shall order the establishment of a loss reserve for each claim. The loss reserves will consist of an accounting transfer from the unrestricted trust account balance of funds sufficient to cover the program's estimated reinsurance reimbursement obligation for costs and expenses for each claim as reported by the insurer.

(2) In the event that the costs and expenses associated with a claim change during the claim adjustment and settlement process, the director shall order that the loss reserve established for that claim be adjusted to reflect changes in the program's reinsurance reimbursement obligation. Such adjustments shall consist of additional transfers of funds from or to the unrestricted trust account balance as required in each case.

History

Statutory Authority: RCW 70.148.040. WSR 90-14-020 (Order 90-5), § 374-30-030, filed 6/27/90, effective 8/1/90.

Wash. Admin. Code § 374-30-040 Loss reserves—Use and disposition.

(1) When the adjustment and settlement of claims for which the program has provided reinsurance has been completed, the insurer shall notify the director of the terms of final settlement and shall provide such documentation as the director may require. The director shall order that the insurer be reimbursed for those costs and expenses in excess of the insurer's contractual net retention that are properly due to the insurer under the reinsurance contract. Such payments will be made from the funds set aside as loss reserves for the pertinent claim.

(2) In the event that the program's final reinsurance obligation for any claim differs from the amount set aside as a loss reserve for that claim, adjustment shall be made as follows:

(a) If the program's reinsurance obligation is greater than the amount set aside as a loss reserve, the additional funds required shall be withdrawn from the unrestricted trust account balance.

(b) If the program's reinsurance obligation is less than the amount set aside as a loss reserve, the unutilized funds shall be restored to the unrestricted trust account balance.

History

Statutory Authority: RCW 70A.01.010 and 70A.01.020. WSR 22-01-069, § 374-30-040, filed 12/9/21, effective 1/9/22. Statutory Authority: RCW 70.148.040. WSR 90-14-020 (Order 90-5), § 374-30-040, filed 6/27/90, effective 8/1/90.

Wash. Admin. Code § 374-30-050 Surplus reserves—Establishment and adjustment.

The director shall establish a surplus reserve, consisting of an accounting segregation of funds from the unrestricted trust account balance, for the program in order to protect the program and the state against unexpected catastrophic losses and in order to establish a financial foundation for the program that will be acceptable to commercial insurers and insurance industry regulatory authorities. The surplus reserve shall be established as soon as practicable following the effective date of this rule, and shall be adjusted by the director from time to time as needed. In establishing and adjusting the surplus reserve, the director shall consider the following:

(1) The required minimum capitalization for insurers and reinsurers established in chapter 48.05 RCW.

(2) Similar requirements set forth in the laws and rules of the state or states in which the insurer or insurers for whom the program is providing reinsurance are domiciled.

(3) Generally accepted standards of financial soundness and solvency applicable to insurance and reinsurance.

(4) Actuarial analysis and information concerning likely levels of reinsurance cost and expense exposure of the program over time.

(5) Advice and information from the Washington insurance commissioner, insurance industry advisors, the pollution liability insurance program technical advisory committee, and other knowledgeable persons.

(6) The actual loss and expense experience of insurers and the program as this develops over time.

(7) Any additional information that the director may deem pertinent and relevant.

History

Statutory Authority: RCW 70.148.040. WSR 90-14-020 (Order 90-5), § 374-30-050, filed 6/27/90, effective 8/1/90.

Wash. Admin. Code § 374-30-060 Surplus reserves—Use and reestablishment.

Funds set aside as surplus reserves shall be used only for payment of reinsurance costs and expenses resulting from natural disasters, catastrophes, or other conditions not foreseen or expected. Such payments may be made only by order of the director. In the event that such use is made of any or all of the surplus reserves established by this rule, the surplus reserve balance shall be restored to required levels out of program revenues as expeditiously as possible.

History

Statutory Authority: RCW 70.148.040. WSR 90-14-020 (Order 90-5), § 374-30-060, filed 6/27/90, effective 8/1/90.

Chapter 374-40 Practice and procedure.

Wash. Admin. Code § 374-40-010 Adoption of model rules.

The model rules of procedure contained in chapter 10-08 WAC, as they exist now or may be hereafter amended are, to the extent they are not inconsistent with the rules contained in this chapter, adopted as the rules of procedure before this agency. The rules in this chapter will, to the extent of any conflict with the model rules of procedure, be deemed to supersede the conflicting model rules of procedure.

History

Statutory Authority: RCW 70.148.040. WSR 90-18-057 (Order 90-7), § 374-40-010, filed 8/31/90, effective 10/1/90.

Wash. Admin. Code § 374-40-020 Agency defined.

Unless the context requires otherwise, "agency" means the pollution liability insurance agency created pursuant to chapter 70A.325 RCW.

History

Statutory Authority: RCW 70A.01.010 and 70A.01.020. WSR 22-01-069, § 374-40-020, filed 12/9/21, effective 1/9/22. Statutory Authority: RCW 70.148.040. WSR 90-18-057 (Order 90-7), § 374-40-020, filed 8/31/90, effective 10/1/90.

Wash. Admin. Code § 374-40-030 Appearance and practice before agency—Who may appear.

No person may appear in a representative capacity before the agency or its designated hearing officer other than the following:

(1) Attorneys at law duly qualified and entitled to practice before the supreme court of the state of Washington;

(2) Attorneys at law duly qualified and entitled to practice before the highest court of record of any other state, if the attorneys at law of the state of Washington are permitted to appear in a representative capacity before administrative agencies of such other state, and if not otherwise prohibited by Washington state law;

(3) A bona fide officer, partner, or full-time employee of an individual firm, association, partnership, or corporation who appears for such individual firm, association, partnership, or corporation.

History

Statutory Authority: RCW 70.148.040. WSR 90-18-057 (Order 90-7), § 374-40-030, filed 8/31/90, effective 10/1/90.

Wash. Admin. Code § 374-40-040 Appearance and practice before agency—Appearance by former employee of agency or former member of attorney general's staff.

No former employee of the agency or member of the attorney general's staff may at any time after severing his or her employment with the agency or the attorney general appear in a representative capacity on behalf of other parties in a formal proceeding wherein he or she previously took an active part as a representative of the agency as provided by RCW 42.22.040.

History

Statutory Authority: RCW 70.148.040. WSR 90-18-057 (Order 90-7), § 374-40-040, filed 8/31/90, effective 10/1/90.

Wash. Admin. Code § 374-40-050 Appearance and practice before agency—Former employee as expert witness.

No former employee of the agency shall at any time after severing his or her employment with the state of Washington appear, except with the written permission of the agency, as an expert witness on behalf of other parties in a formal proceeding wherein he or she previously took an active part in the investigation as a representative of the agency.

History

Statutory Authority: RCW 70.148.040. WSR 90-18-057 (Order 90-7), § 374-40-050, filed 8/31/90, effective 10/1/90.

Chapter 374-45 Reporting and initial investigations.

Wash. Admin. Code § 374-45-010 Purpose.

In order to aid the state in identifying and addressing heating oil contaminated property, this chapter sets forth the requirements for the public to report a release of heating oil from a heating oil tank and the process for the agency to conduct an initial investigation of the release. This chapter is promulgated under the authority of chapter 70A.330 RCW.

(1) Nothing in this chapter precludes the department of ecology from taking or requiring further action based on other law.

(2) This chapter does not apply to releases from underground storage tank systems regulated under chapter 173-360A WAC. Such releases must be investigated and reported to the department of ecology in accordance with that chapter.

(3) Nothing in this chapter eliminates any obligations to comply with reporting requirements in other laws or permits.

History

Statutory Authority: RCW 70A.330.010 and 70A.330.800. WSR 22-08-020, § 374-45-010, filed 3/25/22, effective 4/25/22.

Wash. Admin. Code § 374-45-020 Definitions.

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

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

(2) "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 the generation of electrical energy.

(3) "Heating oil tank" 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. "Heating oil tank" includes a decommissioned or abandoned heating oil tank. "Heating oil tank" does not include a tank used solely for industrial process heating purposes or generation of electrical energy.

(4) "MTCA" means the Model Toxics Control Act, chapter 70A.305 RCW and its implementing regulations, chapters 173-340 and 173-204 WAC.

(5) "Operator" means any person in control of, or having responsibility for, the daily operation of a heating oil tank.

(6) "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.

(7) "Release" means any intentional or unintentional entry of any hazardous substance into the environment including, but not limited to, a spill, leak, emission, escape, or leaching into the environment.

(8) "Remedial action" has the same meaning as defined in RCW 70A.305.020.

History

Statutory Authority: RCW 70A.330.010 and 70A.330.800. WSR 22-08-020, § 374-45-020, filed 3/25/22, effective 4/25/22.

Wash. Admin. Code § 374-45-030 Reporting a release.

(1) Any owner or operator of a heating oil tank, or owner of the property where a heating oil tank is located, who has information or suspects that heating oil has been released to the environment at the property and may be a threat to human health or the environment must report such information to the agency within 90 days of discovery.

(2) To the extent known, the report to the agency must include:

(a) The identification and address of the release;

(b) Circumstances of the release and the discovery; and

(3) The following are examples of situations that a person should generally report under this section:

(a) Discovery of heating oil that has leaked or been dumped on the ground.

(b) Contamination in a water supply well.

(d) Vapors in a building, utility vault, or other structure that appear to be entering the structure from nearby contaminated soil or ground water.

(e) Free product on the surface of the ground or in the ground water.

(f) Any contaminated soil or unpermitted disposal of heating oil that would be classified as a hazardous waste under federal or state law.

(4) There is no requirement to report a release to the agency under this chapter if:

(a) The circumstances associated with the release have been provided to the agency through a notice of potential claim under chapter 374-70 WAC, a technical assistance program application under chapter 374-80 WAC, or application to the underground storage tank revolving loan and grant program; or

(b) The release has been reported to department of ecology in accordance with another law or regulation.

History

Statutory Authority: RCW 70A.330.010 and 70A.330.800. WSR 22-08-020, § 374-45-030, filed 3/25/22, effective 4/25/22.

Wash. Admin. Code § 374-45-040 Initial investigation of a release.

(1) An initial investigation is a review of a reported heating oil tank release by the agency and documentation of reported conditions. The purpose of the initial investigation is to determine:

(a) Whether there has been a release from a heating oil tank that may pose a threat to human health or the environment;

(b) Whether further remedial action is necessary to confirm the release or to address the threat posed by the release under MTCA to protect human health and the environment;

(c) Whether emergency remedial action is necessary to confirm the release or to address the threat posed by the release; and

(d) Whether referral to another authority is appropriate.

(2) The agency will complete an initial investigation unless:

(a) The circumstances associated with the suspected or confirmed release are known to the agency and have previously been, or are currently being, evaluated by the agency or other government agency; or

(b) The agency does not have a reasonable basis to believe that there has been a release or threatened release of a hazardous substance that may pose a threat to human health or the environment.

(3) The agency will complete an initial investigation within 90 days of a release being reported to the agency.

(4) The agency may rely on another government agency or a contractor to the agency to conduct an initial investigation on its behalf, provided the agency determines:

(a) The other agency or contractor is not suspected to have contributed to the release of heating oil; and

(b) The other agency or contractor has no conflict of interest.

(5) Within 30 days of completing an initial investigation of a release, the agency will conduct additional investigation or make one of the following determinations:

(a) No release of heating oil occurred.

(b) A release of heating oil occurred but does not pose a threat to human health or the environment requiring remedial action under MTCA.

(c) A release of heating oil occurred that posed a threat to human health or the environment, a remedial action to address the threat has been completed, and no further remedial action is necessary to address the threat.

(d) A release of heating oil occurred that poses a threat to human health or the environment and further remedial action other than emergency remedial action is necessary to address the threat. The agency will notify the owner and operator and the department of ecology of the agency's determination.

(e) A release of heating oil occurred that poses a threat to human health or the environment and an emergency remedial action is necessary to address the threat. The agency will notify the owner and operator and the department of ecology of the agency's determination.

History

Statutory Authority: RCW 70A.330.010 and 70A.330.800. WSR 22-08-020, § 374-45-040, filed 3/25/22, effective 4/25/22.

Chapter 374-70 Heating oil pollution liability insurance program.

Wash. Admin. Code § 374-70-010 Purpose and authority.

WAC 374-70-010

The pollution liability insurance agency is directed by chapter 70A.330 RCW to transition the heating oil pollution liability insurance program to a revolving loan and grant program which will assist owners and operators of heating oil tanks.

History

Statutory Authority: RCW 70A.330.040. WSR 26-13-030, s 374-70-010, filed 6/9/26, effective 7/10/26
WSR 23-05-006, § 374-70-010, filed 2/2/23, effective 3/5/23. Statutory Authority: RCW 70A.01.010 and 70A.01.020. WSR 22-01-069, § 374-70-010, filed 12/9/21, effective 1/9/22. Statutory Authority: RCW 70.149.040. WSR 08-20-013, § 374-70-010, filed 9/18/08, effective 1/1/09. Statutory Authority: Chapter 70.149 RCW. WSR 96-01-101, § 374-70-010, filed 12/19/95, effective 1/19/96.

Wash. Admin. Code § 374-70-020 Definitions.

WAC 374-70-020

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

(1) "Abandoned heating oil tank" means a heating oil tank that has been 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 a heating oil tank or its system that results in bodily injury, property damage, or a need for corrective action, neither expected nor intended by the owner or operator.

(3) "Agency" means the Washington state pollution liability insurance agency established pursuant to chapter 70A.325 RCW and is referred to as PLIA throughout this chapter. For purposes of chapter 70A.330 RCW, agency or PLIA shall also mean staff or employees of the pollution liability insurance agency.

(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.

(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.

(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 70A.330.100;

(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 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" or "service provider" is an independent contractor who may be hired by the insured to conduct corrective action including sampling and testing, remedial actions, site restoration, and submittal of required reports to PLIA. A service provider is not a representative, staff, or an employee of the pollution liability insurance agency.

(12) "Insurer" means the commercial insurance company who provided pollution liability insurance to PLIA which covered owners of heating oil tanks registered 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 70A.305 RCW).

(14) "Named insured" means the owner of the heating oil tank 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 a heating oil tank.

(16) "Online community" means the cloud-based application and data system used by the agency, the agency's customers, and service providers to submit documentation, report, process, and look up project information.

(17) "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.

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

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

(20) "Pollution liability insurance agency" (PLIA) means the Washington state pollution liability insurance agency established pursuant to chapter 70A.325 RCW. For purposes of chapter 70A.330 RCW, pollution liability insurance agency shall also mean staff or employees of the pollution liability insurance agency.

(21) "Pollution liability insurance agency trust account" means the pollution liability insurance agency trust account established under chapter 70A.325 RCW and established in the custody of the state treasurer. Expenditures from the account are used for the purposes of chapter 70A.325 RCW including the payment of costs of administering the pollution liability insurance program, and payment of reinsurance claims.

(22) "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.

(23) "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 replacement of flooring in the case of a basement tank.

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

(25) "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.

(26) "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 a heating oil tank.

(27) "Extended reporting period" means the 30 day time period after the insurance policy coverage has ended when a claim can still be filed. However, the release from the heating oil tank must have occurred during the time period when the insurance policy was in effect. For purposes of this program, the heating oil insurance policy coverage ended on June 30, 2025, and the extended reporting period was from June 30, 2025, until July 30, 2025.

History

Statutory Authority: RCW 70A.330.040. WSR 26-13-030, s 374-70-020, filed 6/9/26, effective 7/10/26
WSR 23-05-006, § 374-70-020, filed 2/2/23, effective 3/5/23. Statutory Authority: RCW 70A.01.010 and 70A.01.020. WSR 22-01-069, § 374-70-020, filed 12/9/21, effective 1/9/22. Statutory Authority: RCW 70.149.040. WSR 08-20-013, § 374-70-020, filed 9/18/08, effective 1/1/09. Statutory Authority: Chapter 70.149 RCW. WSR 97-06-080, § 374-70-020, filed 3/3/97, effective 4/3/97
WSR 96-01-101, § 374-70-020, filed 12/19/95, effective 1/19/96.

Wash. Admin. Code § 374-70-030 Responsibility.

WAC 374-70-030

(1) The director of the pollution liability insurance agency was directed by chapter 70A.330 RCW to establish the heating oil pollution liability insurance program to assist owners and operators of heating oil tanks who were registered in the program, and then to transition heating oil tank owners and operators from the program into the loan and grant program in chapter 70A.345 RCW.

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

Pollution Liability Insurance Agency

Washington State

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 their 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 who provided pollution liability insurance to owners of registered heating oil tanks.

History

Statutory Authority: RCW 70A.330.040. WSR 26-13-030, s 374-70-030, filed 6/9/26, effective 7/10/26
WSR 23-05-006, § 374-70-030, filed 2/2/23, effective 3/5/23. Statutory Authority: RCW 70A.01.010 and 70A.01.020. WSR 22-01-069, § 374-70-030, filed 12/9/21, effective 1/9/22. Statutory Authority: RCW 70.149.040. WSR 08-20-013, § 374-70-030, filed 9/18/08, effective 1/1/09. Statutory Authority: Chapter 70.149 RCW. WSR 97-06-080, § 374-70-030, filed 3/3/97, effective 4/3/97
WSR 96-01-101, § 374-70-030, filed 12/19/95, effective 1/19/96.

Wash. Admin. Code § 374-70-040 Insurance program.

WAC 374-70-040

The director, as the heating oil pollution liability insurance program administrator, obtained pollution liability insurance coverage on behalf of the named insureds: All owners of registered heating oil tanks as defined in this chapter. The pollution liability insurance policy was a claims made and reported policy, which provided up to $60,000 coverage, per occurrence, per site, per year and was in excess of other valid insurance and warranties.

History

Statutory Authority: RCW 70A.330.040. WSR 26-13-030, s 374-70-040, filed 6/9/26, effective 7/10/26
WSR 23-05-006, § 374-70-040, filed 2/2/23, effective 3/5/23. Statutory Authority: RCW 70.149.040. WSR 08-20-013, § 374-70-040, filed 9/18/08, effective 1/1/09. Statutory Authority: Chapter 70.149 RCW. WSR 96-01-101, § 374-70-040, filed 12/19/95, effective 1/19/96.

Wash. Admin. Code § 374-70-050 Eligibility.

WAC 374-70-050

In accordance with RCW 70A.330.040(1), only heating oil tanks in Washington state with registrations in place before July 2, 2020, and the owner associated with that registered heating oil tank were eligible for coverage under the heating oil pollution liability insurance. The heating oil pollution liability insurance policy coverage ended on June 30, 2025, with an extended reporting period of 30 days, which allowed for a claim to be made until July 30, 2025.

(1) Claims made for a nonregistered heating oil tank are not eligible for coverage under this program.

(2) Claims made for a registered heating oil tank after the extended reporting period are not eligible for coverage under this program.

(3) Claims made for an abandoned or decommissioned heating oil tank are not eligible for coverage under this program if the claim is made after the extended reporting period.

(4) Claims made by an individual who is not the individual who registered the heating oil tank are not eligible for coverage under this program. Registration of the heating oil tank 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.

(5) 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.

History

Statutory Authority: RCW 70A.330.040. WSR 26-13-030, s 374-70-050, filed 6/9/26, effective 7/10/26
WSR 23-05-006, § 374-70-050, filed 2/2/23, effective 3/5/23. Statutory Authority: RCW 70.149.040. WSR 08-20-013, § 374-70-050, filed 9/18/08, effective 1/1/09. Statutory Authority: Chapter 70.149 RCW. WSR 96-01-101, § 374-70-050, filed 12/19/95, effective 1/19/96.

Wash. Admin. Code § 374-70-060 Coverage.

WAC 374-70-060

(1) The effective date of coverage under the heating oil pollution liability insurance program is January 1, 1996, to June 30, 2025, with an extended reporting period. Corrective action for an accidental release occurring prior to January 1, 1996, is not covered under this program. Corrective action for an accidental release occurring after June 30, 2025, will not be covered under this program.

(2) The heating oil pollution liability insurance program provides coverage for corrective action costs up to $60,000 per occurrence, per site, per year, exclusive of other valid insurance or warranties.

(3) Costs covered under the heating oil pollution liability insurance program include:

(a) Corrective action if the accidental release occurs after the registration of a heating oil tank and before June 30, 2025, and was a claim made under this program;

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

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

(e) Third-party property damage restoration, including landscaping, limited to $1,500 for each third-party claimant per occurrence, per site, per year;

(f) 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;

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

(h) Reimbursement of new tank replacement costs in accordance with RCW 70A.330.100.

(i) The technical assistance program enrollment fee for the heating oil tank release site.

(4) 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 a heating oil tank or after June 30, 2025;

(b) Any costs if the accidental release is not covered by the claim made to the agency;

(d) Costs in excess of $60,000 per occurrence, per site, per year, exclusive of other valid insurance or warranties;

(e) Cleanup of contamination from other sources;

(f) Removal, repair or replacement of the heating oil tank, lines, or furnace, except reimbursement of new tank replacement costs in accordance with RCW 70A.330.100;

(g) Emergency heat restoration procedures;

(h) Cleanup of a site beyond the MTCA cleanup levels or requirements;

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

(j) Corrective action to address releases or damage to the heating oil tank or its system or surrounding property caused by a service provider or contractor;

(k) Corrective action performed by a service provider whose principal is also the named property owner of the registered heating oil tank;

(l) Costs associated with landscaping and surface restoration in excess of previous conditions for the property of the named insured;

(m) Costs associated with property restoration that are not deemed essential to personal safety or are in excess of previous conditions at the site;

(n) Third-party property damage restoration, including landscaping, in excess of $1,500 for each third-party claimant per occurrence, per site, per year; and

(o) 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 $60,000 in total damages, coverage within the $60,000 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 the named insured provides PLIA with documentation which confirms the existence of an accidental release which is eligible for coverage under these rules. PLIA reserves the right to perform an investigation including, but not limited to, soil sample testing, to confirm a release.

History

Statutory Authority: RCW 70A.330.040. WSR 26-13-030, s 374-70-060, filed 6/9/26, effective 7/10/26
WSR 23-05-006, § 374-70-060, filed 2/2/23, effective 3/5/23. Statutory Authority: RCW 70A.01.010 and 70A.01.020. WSR 22-01-069, § 374-70-060, filed 12/9/21, effective 1/9/22. Statutory Authority: RCW 70.149.040. WSR 08-20-013, § 374-70-060, filed 9/18/08, effective 1/1/09. Statutory Authority: Chapter 70.149 RCW. WSR 97-06-080, § 374-70-060, filed 3/3/97, effective 4/3/97
WSR 96-01-101, § 374-70-060, filed 12/19/95, effective 1/19/96.

Wash. Admin. Code § 374-70-070 Parties involved with an accidental release and corrective action.

WAC 374-70-070

Among the potential parties involved when an accidental release is suspected from a heating oil tank or line are the heating oil tank owner or operator, adjacent property owners, heating oil supplier, PLIA, third-party administrator, department of ecology, and heating oil tank service providers.

(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 or operator. 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 or operator.

(a) 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.

(b) 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.

(c) The heating oil tank owner is responsible for providing documentation to PLIA that pollution liability coverage will not be provided by the homeowner's insurer.

(d) If corrective action is implemented, the heating oil tank owner is responsible for selecting a service provider and approving the completed corrective action.

(2) Adjacent property owners. If an accidental release migrates offsite, 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 technical assistance to heating oil tank owners and operators (chapter 374-80 WAC), manages claims for the insurer and provides documentation 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. To be an eligible cost covered by the heating oil pollution liability insurance program, corrective action must satisfy MTCA and applicable local government requirements.

(7) Heating oil tank service provider. A heating oil tank service provider is an independent contractor who contracts with the heating oil tank owner to perform corrective action, and meets the requirements detailed in WAC 374-70-100.

History

Statutory Authority: RCW 70A.330.040. WSR 26-13-030, s 374-70-070, filed 6/9/26, effective 7/10/26
WSR 23-05-006, § 374-70-070, filed 2/2/23, effective 3/5/23. Statutory Authority: RCW 70.149.040. WSR 08-20-013, § 374-70-070, filed 9/18/08, effective 1/1/09. Statutory Authority: Chapter 70.149 RCW. WSR 97-06-080, § 374-70-070, filed 3/3/97, effective 4/3/97
WSR 96-01-101, § 374-70-070, filed 12/19/95, effective 1/19/96.

Wash. Admin. Code § 374-70-080 Claims.

WAC 374-70-080

The program provides coverage for a claim submitted for an accidental release from a registered heating oil tank until June 30, 2025, with a 30 day extended reporting period. Claims submitted after July 30, 2025, are not covered under this program.

(1) Coverage under the heating oil pollution liability insurance program shall be in excess of other valid insurance and warranties. Payment of a claim will be made only if the cleanup of contamination resulting from an accidental release is not covered by other valid insurance and warranties.

(2) Corrective action will be accomplished by the most cost-effective method available. To receive payment from the heating oil pollution liability insurance program for covered costs, the following actions are required:

(a) The claim must be for corrective action resulting from an accidental release from a heating oil tank which has been registered with PLIA prior to the accidental release and where the release occurred before June 30, 2025;

(b) The claim must be received by PLIA prior to July 30, 2025;

(c) The claim must satisfy all requirements and restrictions established by chapter 70A.330 RCW and this chapter. Any failure to satisfy all requirements and restrictions may be a basis for denial of claim;

(d) 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;

(e) The heating oil tank owner is responsible for investigation to determine the source of a suspected accidental release.

(3) For coverage under the program, upon discovery of an accidental release, the heating oil tank owner or operator of the registered tank must complete the following actions:

(a) The heating oil tank owner or operator must have filed a notice of potential claim with PLIA as soon as practicable after discovery that an accidental release may have occurred;

(b) Upon receipt of notice of a potential claim, PLIA will review the notice of potential claim. As part of the review, the heating oil tank owner or operator must provide PLIA with soil sampling results and documentation showing there is no other insurance coverage (e.g., homeowners' insurance). If the claim is determined by PLIA to be valid, PLIA will notify the heating oil tank owner or operator;

(c) Upon notification of a valid claim, the heating oil tank owner or operator will select a heating oil tank service provider, and inform PLIA of their selection. PLIA will inform the heating oil tank owner if the heating oil tank service provider is ineligible to work in the heating oil insurance program;

(d) The heating oil tank service provider must use the following forms which are accessed through the online community:

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

(ii) Work plan amendment. This form provides a proposal for change or deviation from the scope of work proposal;

(iii) Site characterization report. This form provides a record of all corrective action and work elements, as well as a record of detailed costs. The site characterization 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

(iv) Closeout report. This will include a project closeout form, final cleanup report, and final invoice.

(e) The heating oil tank service provider will submit, via the online community documents, a scope of work proposal for corrective action at the heating oil tank site first to the heating oil tank owner or operator for approval and then to PLIA for approval;

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

(g) Corrective action activities and costs must be recorded by the heating oil tank service provider on the site characterization report form in the online community;

(h) Upon completion of all corrective action, the heating oil tank owner must sign the project closeout report or indicate approval via the online community, which states they are approving of and satisfied with all work performed by the heating oil tank service provider;

(i) Upon completion of corrective action and approval by the heating oil tank owner, the heating oil tank service provider must submit to PLIA a complete closeout report and final invoice;

(j) Upon completion of corrective action that satisfies the requirements of all applicable state and local statutes, the agency will document that the claim has been closed.

(4) 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 work plan amendment request which must be approved in advance by the heating oil tank owner or operator and then 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/or PLIA or is beyond the terms of the scope of work proposal or work plan amendment(s), or is in excess of costs approved in the scope of work proposal or work plan amendment(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 service provider.

(5) If a notice of potential claim has been filed and approved by PLIA but no work commenced within six months, then PLIA may close the claim for inactivity, and the registered owner must request reopening of the claim from PLIA. If work at the property (e.g., invoices submitted, work plans submitted) stops for a consecutive six months, then PLIA may close the claim for inactivity, and the registered owner must again request reopening of the claim from PLIA.

(6) 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 statutory limit provided in RCW 70A.330.040(1) and to develop a plan on resuming payments. Payment will commence with sufficient revenue.

(7) PLIA will maintain all records associated with a claim for a period of 10 years.

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

History

Statutory Authority: RCW 70A.330.040. WSR 26-13-030, s 374-70-080, filed 6/9/26, effective 7/10/26
WSR 23-05-006, § 374-70-080, filed 2/2/23, effective 3/5/23. Statutory Authority: RCW 70A.01.010 and 70A.01.020. WSR 22-01-069, § 374-70-080, filed 12/9/21, effective 1/9/22. Statutory Authority: RCW 70.149.040. WSR 08-20-013, § 374-70-080, filed 9/18/08, effective 1/1/09. Statutory Authority: Chapter 70.149 RCW. WSR 97-06-080, § 374-70-080, filed 3/3/97, effective 4/3/97
WSR 96-01-101, § 374-70-080, filed 12/19/95, effective 1/19/96.

Wash. Admin. Code § 374-70-085 Reopening a claim.

WAC 374-70-085

The program provides coverage for a claim submitted for an accidental release from a registered heating oil tank until June 30, 2025, with a 30 day extended reporting period. Claims submitted and approved prior to July 30, 2025, but administratively closed may be reopened using the following process:

(1) The reopened claim coverage is for the corrective action resulting from an accidental release from a heating oil tank at the time the claim was made. The reopened claim does not cover costs associated with a new release. Where a new release has commingled with the release associated with a claim, the insurance coverage will be provided for the percentage of the costs aligned with the claim release;

(2) The reopened claim must satisfy all requirements and restrictions established by chapter 70A.330 RCW and this chapter. Any failure to satisfy all requirements and restrictions may be a basis for denial of further work under the claim;

(3) The heating oil tank owner or operator must provide notice to PLIA that they wish to reopen a claim and then attend a claim review meeting with PLIA. PLIA recommends attending a claim review meeting before filing a notice of reopening claim. However, a meeting must occur before PLIA will issue a reopened claim determination. A claim may only be reopened by the heating oil tank owner or operator who filed the original claim;

(a) The reopened claim will only address contamination from the release reported in the claim. At PLIA's request the heating oil tank owner or operator must submit documentation to prove by clear, cogent, and convincing evidence the contamination is associated with the claim's release of heating oil as part of the notice of reopening claim. A laboratory reported opinion on chromatograms may be used to age date a diesel sample;

(b) Where a claim has been closed due to completion of a MTCA remedial action, the heating oil tank owner or operator must show to PLIA by clear, cogent, and convincing evidence that the reopened claim is necessary to meet MTCA standards and to be protective of human health and the environment;

(4) A reopened claim does not in any way increase the limits of the insurance policy. The reopened claim will be limited to eligible cost of up to $60,000 minus any costs already paid out under the claim;

(5) PLIA will review notice of a reopened claim, and upon approval, the heating oil tank owner will select a heating oil tank service provider and provide notice of the selection to PLIA. PLIA will inform the heating oil tank owner if the heating oil tank service provider is ineligible to work in the heating oil insurance program;

(a) 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;

(b) The following forms must be used by the heating oil service provider for work in the heating oil insurance program. The forms are accessed through the online community:

(ii) Work plan amendment. This form provides a proposal for change or deviation from the scope of work proposal;

(iv) Closeout report. This will include a project closeout form, final cleanup report, and final invoice;

(c) The heating oil tank service provider will submit via the online community a scope of work proposal for corrective action at the heating oil tank site, first to the heating oil tank owner or operator for their approval and then to PLIA;

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

(e) Corrective action activities and costs must be recorded by the heating oil tank service provider on the site characterization report form in the online community;

(f) Upon completion of all corrective action, the heating oil tank owner must sign the project closeout report or indicate approval via the online community, which states they are approving of and satisfied with all work performed by the heating oil tank service provider;

(g) Upon completion of corrective action and approval by the heating oil tank owner, the heating oil tank service provider must submit to PLIA a complete closeout report and final invoice;

(h) Upon completion of corrective action that satisfies the requirements of all applicable state and local statutes, the director will document that the claim has been closed;

(6) 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 work plan amendment request which must be approved in advance by the heating oil tank owner or operator and then 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/or PLIA or is beyond the terms of the scope of work proposal or work plan amendment(s), or is in excess of costs approved in the scope of work proposal or work plan amendment(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 service provider;

(7) If a notice of reopened claim has been filed and approved by PLIA but no work commenced within six months, then PLIA may close the claim for inactivity, and the registered owner must again request reopening of the claim from PLIA. If work at the property (e.g., invoices submitted, work plans submitted) stops for a consecutive six months, then PLIA may close the claim for inactivity, and the registered owner must again request reopening of the claim from PLIA;

(8) Approval of claims and payment of covered costs are contingent upon the availability of state funding. The director reserves the right to defer payment at any time that claim demands exceed the statutory limit provided in RCW 70A.330.040(1) and to develop a plan on resuming payments. Payment will commence with sufficient state funding;

(9) PLIA will maintain all records associated with a claim for a period of 10 years; and

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

History

Statutory Authority: RCW 70A.330.040. WSR 26-13-030, s 374-70-085, filed 6/9/26, effective 7/10/26.

Wash. Admin. Code § 374-70-090 Third-party claims.

WAC 374-70-090

The program provides coverage for a third-party claim submitted for an accidental release from a registered heating oil tank until June 30, 2025, with a 30 day extended reporting period. Claims submitted after July 30, 2025, are not covered under this program.

Coverage for a third-party claim under the heating oil pollution liability insurance program shall be in excess of other valid insurance and warranties. Payment of a third-party claim will be made only if the cleanup of contamination resulting from an accidental release is not covered by other valid insurance and warranties. Corrective action will be accomplished by the most cost-effective method available. For a third party to receive payment from the heating oil pollution liability insurance program for covered corrective action costs, the following actions are required:

(1) The third-party claim must be for corrective action resulting from an accidental release from a heating oil tank which has been registered with PLIA prior to the accidental release, where the accidental release occurred prior to June 30, 2025, and the claim was filed prior to July 30, 2025;

(2) The claim must satisfy all requirements and restrictions established for third-party claims by chapter 70A.330 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 as soon as practicable after discovery that damage may have occurred from an accidental release from a named insured's heating oil tank;

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

(5) If an accidental release from a named insured's heating oil tank has been confirmed as impacting the third-party claimant, PLIA, as designated representative of the insurer will initiate an investigation to determine the 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) 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 to perform corrective action. PLIA will inform the heating oil tank owner if the heating oil tank service provider is ineligible to work in the heating oil insurance program;

(7) The following forms must be used by the heating oil service provider for work in the heating oil insurance program. The forms are accessed through the online community:

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

(b) Work plan amendment. This form provides a proposal for change or deviation from the scope of work proposal;

(c) Site characterization report. This form provides a record of all corrective action and work elements, as well as a record of detailed costs. The site characterization 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) Closeout report. This will include a project closeout form, final cleanup report, and final invoice;

(8) The heating oil tank service provider will submit via the online community a scope of work proposal for corrective action at the heating oil tank site, first to the third-party claimant for their approval and then to PLIA;

(9) 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(s);

(10) Corrective action activities and costs must be recorded by the heating oil tank service provider on the site characterization report form in the online community;

(11) Upon completion of all corrective action, the third-party claimant must sign the project closeout report or indicate approval via the online community, which states they are approving of and satisfied with all work performed by the heating oil tank service provider;

(12) Upon completion of corrective action and approval by the third-party claimant, the heating oil tank service provider must submit to PLIA a complete closeout report and final invoice;

(13) Upon completion of corrective action that satisfies the requirements of all applicable state and local statutes, the director will document that the claim has been closed;

(14) All work performed by the heating oil tank service provider on behalf of the third-party claimant 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 work plan amendment request which must be approved in advance by the third-party claimant and then 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/or PLIA or is beyond the terms of the scope of work proposal or work plan amendment(s), or is in excess of costs approved in the scope of work proposal or work plan amendment(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 service provider;

(15) If a notice of a third-party claim has been filed and approved by PLIA but no work commenced within six months, then PLIA may close the claim for inactivity, and the third-party claimant must request reopening of the claim from PLIA. If work at the property (e.g., invoices submitted, work plans submitted) stops for a consecutive six months, then PLIA may close the claim for inactivity, and the third-party claimant must again request reopening of the claim from PLIA;

(16) Approval of claims and payment of covered costs are contingent upon the availability of state funding. The director reserves the right to defer payment at any time that claim demands exceed the statutory limit provided in RCW 70A.330.040(1) and to develop a plan on resuming payments. Payment will commence with sufficient state funding;

(17) PLIA will maintain all records associated with a claim for a period of 10 years; and

(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.

History

Statutory Authority: RCW 70A.330.040. WSR 26-13-030, s 374-70-090, filed 6/9/26, effective 7/10/26
WSR 23-05-006, § 374-70-090, filed 2/2/23, effective 3/5/23. Statutory Authority: RCW 70A.01.010 and 70A.01.020. WSR 22-01-069, § 374-70-090, filed 12/9/21, effective 1/9/22. Statutory Authority: RCW 70.149.040. WSR 08-20-013, § 374-70-090, filed 9/18/08, effective 1/1/09. Statutory Authority: Chapter 70.149 RCW. WSR 97-06-080, § 374-70-090, filed 3/3/97, effective 4/3/97
WSR 96-01-101, § 374-70-090, filed 12/19/95, effective 1/19/96.

Wash. Admin. Code § 374-70-100 Service provider requirements and procedures.

WAC 374-70-100

(1) Corrective action under this program shall be performed by a heating oil tank service provider. A heating oil tank service provider is an independent contractor hired by the insured to conduct corrective action including excavation, sampling and testing, remedial actions, site restoration, and submittal of required reports to PLIA. The contractual agreement is between the heating oil service provider and the registered heating oil tank owner.

(2) PLIA does not approve or endorse any company considered to be a heating oil tank service provider. Heating oil tank service providers are required to sign an agreement with PLIA that the provider and its employees (including subcontractors) will adhere to the terms and conditions detailed in the program's service provider agreement and to renew this agreement annually.

(3) Any service provider who does not follow the terms of the service provider agreement is ineligible to participate in the heating oil insurance program.

(a) In addition to noncompliance with any of the terms in the service provider agreement, the following events may be grounds for being ineligible to participate in the heating oil insurance program:

(i) Improper use of claim funds with or without the heating oil tank owner's or third-party claimant's permission, including improper or false billing to maximize or exceed the heating oil tank owner's total claim amount.

(ii) Abusive, unprofessional, or inappropriate communications between the service provider and any member of PLIA's staff or the heating oil tank owner or third-party claimant. This includes willfully ignoring or dismissing inquiries from PLIA regarding the claim.

(iii) Repeated noncompliance with the instruction and procedures in the service provider agreement.

(iv) False or misleading information provided by the service provider to PLIA or to the heating oil tank owner or the third-party claimant or members of the public.

(v) Nonperformance, fraudulent performance, or unsatisfactory performance of contract requirements between the service provider and the heating oil tank owner or third-party claimant.

(vi) Other inconsistent or unsatisfactory performance such as deviation from standard industry best practices, as determined by PLIA's legislative and policy manager and/or the deputy director.

(vii) Any violation of federal, state, or local law or regulation by the service provider.

(4) Once retained by the named insured or the third-party claimant, the heating oil tank service provider works with PLIA, the heating oil tank owner or operator and/or the third-party claimant to:

(a) Perform the corrective action;

(b) Document the costs of the corrective action; and

(c) File the forms required through the online community to receive payment from the heating oil pollution liability insurance program.

(5) All heating oil tank service providers must follow claims procedures as outlined in WAC 374-70-080 and 374-70-085.

All corrective action activities must meet the criteria established by MTCA and any pertinent local ordinances or requirements.

History

Statutory Authority: RCW 70A.330.040. WSR 26-13-030, s 374-70-100, filed 6/9/26, effective 7/10/26
WSR 23-05-006, § 374-70-100, filed 2/2/23, effective 3/5/23. Statutory Authority: Chapter 70.149 RCW. WSR 97-06-080, § 374-70-100, filed 3/3/97, effective 4/3/97
WSR 96-01-101, § 374-70-100, filed 12/19/95, effective 1/19/96.

Wash. Admin. Code § 374-70-120 Appeals.

(1) A person may appeal any of the following decisions made under the heating oil pollution liability insurance program to the director:

(a) A denial of eligibility for coverage;

(b) Amount of payment allowed for corrective action;

(d) Amount of payment allowed for a third-party claim; and

(e) A determination that cleanup does not meet MTCA standards.

(2) A person has 45 days after the decision to file a written request for a hearing which will include a detailed statement on the reason for the appeal.

(3) If the written request for a hearing is received within 45 days, the director shall conduct an adjudicative hearing proceeding under chapter 34.05 RCW.

(4) If the written request for a hearing is not received within 45 days after the decision, no further consideration will be given to the appeal.

History

Statutory Authority: RCW 70A.330.040. WSR 23-05-006, § 374-70-120, filed 2/2/23, effective 3/5/23. Statutory Authority: Chapter 70.149 RCW. WSR 97-06-080, § 374-70-120, filed 3/3/97, effective 4/3/97
WSR 96-01-101, § 374-70-120, filed 12/19/95, effective 1/19/96.

Wash. Admin. Code § 374-70-130 Confidentiality of information.

WAC 374-70-130

(1) All information related to registration of heating oil tanks obtained during heating oil tank registration shall be confidential and is not subject to public disclosure under chapter 42.56 RCW.

(a) Information submitted as part of a claim is not confidential or subject to the confidentiality requirements of RCW 70A.330.080. This information may be withheld or redacted if a Public Records Act (chapter 42.56 RCW) exemption applies.

(b) Information gathered during, or related to, remedial actions conducted under this chapter is not confidential or subject to the confidentiality requirements of RCW 70A.330.080. This information may be withheld or redacted if a Public Records Act (chapter 42.56 RCW) exemption applies.

(2) All examination and proprietary reports and information obtained in soliciting bids from insurers and in monitoring the selected insurer shall be confidential and may not be made public or otherwise disclosed to any person, firm, corporation, agency, association, government body, or other entity.

History

Statutory Authority: RCW 70A.330.040. WSR 26-13-030, s 374-70-130, filed 6/9/26, effective 7/10/26. Statutory Authority: Chapter 70.149 RCW. WSR 97-06-080, § 374-70-130, filed 3/3/97, effective 4/3/97
WSR 96-01-101, § 374-70-130, filed 12/19/95, effective 1/19/96.

Chapter 374-80 Advice and technical assistance program.

Wash. Admin. Code § 374-80-010 Authority and purpose.

The purpose of this chapter is to establish a program for providing technical assistance regarding a release or suspected release from an eligible 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 chapters 70A.330 and 70A.305 RCW.

Any opinion provided by the agency under this program is advisory only and not binding upon either the pollution liability insurance 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.

History

Statutory Authority: RCW 70A.330.040 and chapter 70A.305 RCW. WSR 22-13-035, § 374-80-010, filed 6/6/22, effective 7/7/22. Statutory Authority: RCW 70A.01.010 and 70A.01.020. WSR 22-01-069, § 374-80-010, filed 12/9/21, effective 1/9/22. Statutory Authority: RCW 70.149.040. WSR 20-02-071, § 374-80-010, filed 12/26/19, effective 1/26/20. Statutory Authority: Chapter 70.148 RCW. WSR 03-06-015, § 374-80-010, filed 2/21/03, effective 3/24/03. Statutory Authority: Chapter 70.149 RCW. WSR 97-20-094, § 374-80-010, filed 9/29/97, effective 10/30/97.

Wash. Admin. Code § 374-80-020 Definitions.

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 system that is in use.

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

(4) "Applicant" means the party who is seeking advice and assistance from the advice and 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.

(7) "Eligible petroleum storage tank system" means the following petroleum storage tank systems:

(a) An active, decommissioned, or abandoned heating oil tank; or

(b) A petroleum storage tank system identified by the agency or department of ecology based on the relative risk posed by the release to human health and the environment as determined under chapter 70A.305 RCW, or other factors identified by the department of ecology.

(8) "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 the generation of electrical energy or waste oil, hoists, pipelines, spills from transportation or a form of transport.

(9) "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.

(10) "MTCA" means the Model Toxics Control Act, chapter 70A.305 RCW and implementing regulations in chapters 173-340 and 173-204 WAC.

(11) "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 60 degrees Fahrenheit and 14.7 pounds per square inch absolute.

(12) "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 70A.300 RCW.

(13) "Program" or "technical assistance program" means advice and technical assistance program authorized under RCW 70A.330.040(7).

(14) "Release" means any intentional or unintentional entry of petroleum into the environment 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 70A.305.020.

(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 the environment.

(17) "Site" has the same meaning as "facility" as defined in RCW 70A.305.020.

History

Statutory Authority: RCW 70A.330.040 and chapter 70A.305 RCW. WSR 22-13-035, § 374-80-020, filed 6/6/22, effective 7/7/22. Statutory Authority: RCW 70A.01.010 and 70A.01.020. WSR 22-01-069, § 374-80-020, filed 12/9/21, effective 1/9/22. Statutory Authority: RCW 70.149.040. WSR 20-02-071, § 374-80-020, filed 12/26/19, effective 1/26/20. Statutory Authority: Chapter 70.149 RCW. WSR 97-20-094, § 374-80-020, filed 9/29/97, effective 10/30/97.

Wash. Admin. Code § 374-80-040 Procedures.

(1) Application. To request services under this program, an applicant must submit an application and agree to the terms specified by the agency.

(2) Eligibility.

(a) To be eligible to request services for a site under the technical assistance program, the applicant must demonstrate the following:

(i) A release from an eligible petroleum storage tank system is suspected or confirmed at the site;

(ii) The release has been reported to the department of ecology in accordance with WAC 173-340-310; and

(iii) The applicant is conducting or otherwise interested in conducting independent remedial actions at the site.

(b) 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 is presumed eligible for the technical assistance program unless the agency or the department of ecology determines that the applicant does not have an eligible 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 site investigation including, but not limited to, sampling and testing, 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;

(e) Work with the applicant to monitor progress towards milestones and provide written opinions upon request at each stage of cleanup; and

(f) Other appropriate activities approved by the director.

(4) The applicant may select an independent contractor to perform remedial actions at the site. 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 and testing protocols. The agency will provide requested advice and technical assistance only if sampling and testing are performed in accordance with agency-approved methodology.

(6) Rescinding opinions. The agency may rescind any written opinion if the agency received information that conditions at the site changed or 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 written notice detailing the issues to be addressed. The applicant will have 60 days to respond to the agency with how the issues are addressed. If the issues are not addressed to PLIA's satisfaction, the agency may issue a letter rescinding the written opinion. PLIA will notify the department of ecology if PLIA rescinds a no further action opinion.

(b) Where the issues are substantive in nature, the agency may issue a letter rescinding the written opinion. PLIA will notify the department of ecology if PLIA rescinds a no further action opinion.

History

Statutory Authority: RCW 70A.330.040 and chapter 70A.305 RCW. WSR 22-13-035, § 374-80-040, filed 6/6/22, effective 7/7/22. Statutory Authority: RCW 70.149.040. WSR 20-02-071, § 374-80-040, filed 12/26/19, effective 1/26/20. Statutory Authority: Chapter 70.148 RCW. WSR 03-06-015, § 374-80-040, filed 2/21/03, effective 3/24/03. Statutory Authority: Chapter 70.149 RCW. WSR 97-20-094, § 374-80-040, filed 9/29/97, effective 10/30/97.

Wash. Admin. Code § 374-80-045 Environmental covenant.

(1) Consultation. Where PLIA issues a written opinion under this program, and the remedial action requires an environmental covenant, the applicant 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. 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 opinion.

(a) Where the issues are minor or administrative in nature, the agency will provide the applicant with written notice detailing the issues to be addressed. The applicant must address the issues within 60 days. If the issues are not addressed to PLIA's satisfaction, the agency will issue a letter rescinding the no further action opinion. PLIA will 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 opinion. 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 the 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.

History

Statutory Authority: RCW 70A.330.040 and chapter 70A.305 RCW. WSR 22-13-035, § 374-80-045, filed 6/6/22, effective 7/7/22. Statutory Authority: RCW 70.149.040. WSR 20-02-071, § 374-80-045, filed 12/26/19, effective 1/26/20.

Wash. Admin. Code § 374-80-050 Reimbursement.

(1) The agency must collect, from the applicant, a fee to cover the costs incurred in providing advice and technical assistance under the program.

(2) The agency will post the fee for providing advice and technical assistance under this program on the agency's website and in the program guidance.

(a) The agency will adjust the enrollment fee on an annual basis in July of each calendar year.

(b) The fee is based on the calculation of the costs incurred providing advice and technical assistance and other factors identified by the agency. The agency will make the fee calculation of identified costs available upon request.

(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) Unless the agency determines that an applicant's petroleum storage tank system is ineligible after the applicant enters the program, the fee is nonrefundable.

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

History

Statutory Authority: RCW 70A.330.040 and chapter 70A.305 RCW. WSR 22-13-035, § 374-80-050, filed 6/6/22, effective 7/7/22. Statutory Authority: RCW 70.149.040. WSR 20-02-071, § 374-80-050, filed 12/26/19, effective 1/26/20. Statutory Authority: Chapter 70.148 RCW. WSR 03-06-015, § 374-80-050, filed 2/21/03, effective 3/24/03. Statutory Authority: Chapter 70.149 RCW. WSR 97-20-094, § 374-80-050, filed 9/29/97, effective 10/30/97.

Wash. Admin. Code § 374-80-060 Liability.

(1) The state of Washington and/or the pollution liability insurance agency accepts no liability, nor portion of liability, from the applicant.

(2) 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.

History

Statutory Authority: RCW 70A.330.040 and chapter 70A.305 RCW. WSR 22-13-035, § 374-80-060, filed 6/6/22, effective 7/7/22. Statutory Authority: Chapter 70.149 RCW. WSR 97-20-094, § 374-80-060, filed 9/29/97, effective 10/30/97.

Wash. Admin. Code § 374-80-070 Termination.

(1) The issuance of a no further action opinion constitutes notice of termination of the program agreement by the agency.

(2) The agency may terminate a program agreement for other reasons including, but not limited to, inactivity at the site for 12 consecutive months or violating the agency code of conduct.

(3) The applicant may terminate the program agreement at any time. As specified in WAC 374-80-050, the fee is nonrefundable.

History

Statutory Authority: RCW 70A.330.040 and chapter 70A.305 RCW. WSR 22-13-035, § 374-80-070, filed 6/6/22, effective 7/7/22.

Chapter 374-90 Underground storage tank revolving loan and grant program.

Wash. Admin. Code § 374-90-010 Authority and purpose.

This chapter establishes the underground storage tank revolving loan and grant program pursuant to chapter 70A.345 RCW and outlines the program requirements and processes. The purpose of the program is to assist owners or operators of petroleum underground storage tank systems to: Remediate past releases; upgrade, replace, or remove petroleum underground storage tank systems to prevent future releases; or install new infrastructure or retrofit existing infrastructure for dispensing or using renewable or alternative energy. The program also assists owners and operators of heating oil tanks to remediate past releases or prevent future releases by upgrading, replacing, decommissioning, or removing heating oil tank systems.

History

Statutory Authority: RCW 70A.345.030. WSR 25-02-047, s 374-90-010, filed 12/20/24, effective 1/20/25.

Wash. Admin. Code § 374-90-020 Definitions.

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

(1) "Agency" or "PLIA" means the pollution liability insurance agency, as used throughout this chapter. For purposes of chapter 70A.345 RCW, agency or PLIA shall mean staff or employees of the pollution liability insurance agency.

(2) "Applicant" means the owner or operator of a petroleum underground storage tank or heating oil tank who has applied to the program.

(3) "Ecology" means the Washington state department of ecology.

(4) "Facility" or "petroleum underground storage tank facility" means the property where the enrolled tank is located, including any tank-related infrastructure within that property. The term encompasses all real property under common ownership associated with the operation of the petroleum underground storage tank. For purposes of this program, facility does not have the same meaning as WAC 173-340-200.

(5) "Grant" means a financial award to a program participant that is not repaid by the grantee.

(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 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.

(7) "Heating oil tank" means the same as RCW 70A.345.020(2). Heating oil tank does not include a tank used solely for industrial process heating purposes or generation of electrical energy. This term does not include any:

(a) Tank owned by the federal government or located on a federal military installation or federal military base.

(b) Tank located within the Hanford site.

(8) "Location" means the physical area or site where the assessment, cleanup, or infrastructure replacement, upgrade, or installation will occur.

(9) "Model Toxics Control Act" or "MTCA" means the Model Toxics Control Act, chapter 70A.305 RCW, and chapter 173-340 WAC.

(10) "Online community" means the cloud-based application and data system used by the agency and the applicant or participant to submit documentation and to report, process, and look up project information.

(11) "Operator" means the entity in control of, or having a responsibility for, the daily operation of a petroleum underground storage tank or heating oil tank.

(12) "Owner" means a person who owns a petroleum underground storage tank or heating oil tank.

(13) "Participant" means a petroleum underground storage tank owner or operator accepted into the program who receives and accepts a financial award offer, other than a preliminary planning assessment grant, and signs a participant agreement.

(14) "Petroleum" has the same meaning as defined in WAC 173-360A-0150(48).

(15) "Petroleum underground storage tank" means an underground storage tank regulated under chapter 70A.355 RCW or subtitle I of the Solid Waste Disposal Act (42 U.S.C. chapter 82, subchapter IX) that is used for storing petroleum. This includes tanks owned or operated on property under the direct jurisdiction of either the federal government or tribal governments other nonstate regulating agency. This term does not include any:

(a) Septic tank;

(b) Pipeline facility (including gathering lines):

(i) Which is regulated under 49 U.S.C. chapter 601; or

(d) Storm water or wastewater collection system;

(e) Flow-through process tank;

(f) Liquid trap or associated gathering lines directly related to oil or gas production and gathering operations; or storage tank situated in an underground area (such as a basement, cellar, mineworking, drift, shaft, or tunnel) if the storage tank is situated upon or above the surface of the floor;

(g) Tank owned by the federal government or located on a federal military installation or federal military base; and

(h) Tank located within the Hanford site.

(16) "Petroleum underground storage tank system" or "tank system" means a petroleum underground storage tank and connected underground piping, underground ancillary equipment, and containment system, if any.

(17) "Preliminary planning assessment" means an identification report, to the agency, of any existing contamination at the facility, the necessary actions to address such contamination, and the cost estimate for cleanup and any desired infrastructure upgrades.

(18) "Prime consultant" means an environmental consultant or business contracted by PLIA to perform the preliminary planning assessment or remediation under the program.

(19) "Program" means the underground storage tank revolving loan and grant program established by chapter 70A.345 RCW.

(20) "Release" has the same meaning as defined in RCW 70A.305.020.

(21) "Remedy" or "remedial action" means any action or expenditure consistent with the purposes of chapter 70A.305 RCW to identify, eliminate, or minimize any threat posed by hazardous substances to human health or the environment including any investigative and monitoring activities with respect to any release or threatened release of a hazardous substance and any health assessments or health effects studies conducted in order to determine the risk or potential risk to human health.

(22) "Site" has the same meaning as "facility" in RCW 70A.305.020. The phrase "facility" as used in this program is defined above.

(23) "Technical assistance program" means the program administered by the agency under the requirements of chapter 374-80 WAC.

History

Statutory Authority: RCW 70A.345.030. WSR 25-02-047, s 374-90-020, filed 12/20/24, effective 1/20/25.

Wash. Admin. Code § 374-90-030 Eligibility—Underground storage tank owner or operator.

To be eligible for the program, an owner or operator of a petroleum underground storage tank must meet the following requirements.

(1) For an operational petroleum underground storage tank:

(a) Maintain compliance with the petroleum underground storage tank requirements of chapter 173-360A WAC, or equivalent federal regulating agency; and

(b) Be registered with the department of ecology or equivalent federal regulating agency.

(c) The petroleum underground storage tank cannot be within the site boundary currently under a Model Toxics Control Act order or decree.

(2) For a nonoperational petroleum underground storage tank, or if the tank has been removed, then the tank must not be within the site boundary of a Model Toxics Control Act order or decree. If the tank has been removed, the applicant must show by clear, cogent, and convincing evidence that the release occurred from a petroleum underground storage tank.

(3) The owner or operator is seeking financial assistance to pay for costs associated with at least one of the following actions:

(a) Remediation of a release or prevention of a threatened release of petroleum from a petroleum underground storage tank or its system;

(b) Upgrade, replacement, or removal of a petroleum underground storage tank system unless closure in place is necessary; or

(c) Upgrade, replacement, or retrofit of existing infrastructure, or the installation of new infrastructure to dispense renewable or alternative energy for motor vehicles, including recharging stations for electric vehicles or alternate fuels.

History

Statutory Authority: RCW 70A.345.030. WSR 25-02-047, s 374-90-030, filed 12/20/24, effective 1/20/25.

Wash. Admin. Code § 374-90-040 Eligibility—Heating oil tank owner or operator.

(1) To be eligible for the program, a heating oil tank owner or operator must have a heating oil tank or a historic heating oil release, and be seeking financial assistance to pay for costs associated with at least one of the following actions:

(a) Remediation of a release or prevention of a threatened release of petroleum from a heating oil tank or its system;

(b) Upgrade, replacement, or removal of a heating oil tank or its system unless a determination is made that closure in place is necessary; or

(c) Upgrade or installation of new infrastructure to replace the heating oil tank with another source for heating purposes.

(2) For a heating oil tank (operational or nonoperational), or if the tank has been removed, then the tank must not be located within the site boundary of a Model Toxics Control Act order or decree. If the heating oil tank has been removed, then the applicant must show by clear, cogent, and convincing evidence that the release occurred from a heating oil tank.

History

Statutory Authority: RCW 70A.345.030. WSR 25-02-047, s 374-90-040, filed 12/20/24, effective 1/20/25.

Wash. Admin. Code § 374-90-050 Application.

(1) The application cycle and acceptance dates for the program will be posted on the agency's website.

(2) The director may suspend an application cycle when program funding is limited or if the agency must address a large number of applicants from an application cycle.

(3) Applicants will submit applications through the agency's online community. Alternative formats will be provided if requested from the agency.

(4) Applications must be complete with all required information and must be submitted by the application deadline.

(5) PLIA will require an applicant's personal credit history report if the applicant seeks loan funding. This information will be used to assess the applicant's financial condition.

(6) The agency will review all completed applications in the application cycle and will issue written notice about program acceptance to applicants.

(a) For accepted applicants, the notice letter will indicate whether a preliminary planning assessment is required.

(b) The agency may determine that a preliminary planning assessment is not required if an applicant provides evidence of an equivalent and technically sufficient assessment. Such an assessment should be provided in an applicant's application. If PLIA accepts the assessment, the notice letter will confirm that the assessment is accepted and that a preliminary planning assessment is not required.

(c) If an application is denied, the notice letter will list the reasons for program denial. Denied applicants may apply to the program in another application cycle if they address the reasons for denial.

History

Statutory Authority: RCW 70A.345.030. WSR 25-02-047, s 374-90-050, filed 12/20/24, effective 1/20/25.

Wash. Admin. Code § 374-90-070 Preliminary planning assessment grant.

(1) The agency may award grant funding for a preliminary planning assessment if there has been a release or threatened release of a hazardous substance to the environment.

(2) The amount awarded through a preliminary planning assessment grant reduces an applicant's total funding award amount. Preliminary planning assessment grant amounts are listed in the program guidance.

(3) If PLIA determines that a preliminary planning assessment is required, the agency will designate a prime consultant to perform the preliminary planning assessment at the location of the release or threatened release.

(4) An award of a preliminary planning assessment grant does not guarantee that the applicant will receive further program funding.

History

Statutory Authority: RCW 70A.345.030. WSR 25-02-047, s 374-90-070, filed 12/20/24, effective 1/20/25.

Wash. Admin. Code § 374-90-080 Project prioritization—Underground storage tank owner or operators.

(1) The agency may rank each application to establish funding and project prioritization.

(2) To ensure that program funds are used to address contamination from petroleum underground storage tanks, the agency may prioritize funding for project locations that require remediation.

(3) The agency will review information from the preliminary planning assessment, the application, and the following factors and any other factors PLIA deems relevant to establish ranking:

(a) Whether or not a release from a petroleum underground storage tank has occurred, and the nature and extent of contamination from that release.

(b) An assessment of whether the petroleum contamination poses a threat to public health and the environment.

(c) An evaluation of the location with preestablished criteria including, but not limited to, proximity to drinking water, provided in the program guidance.

(d) An assignment of a numeric score to each applicant project location and a ranking of each applicant within an application cycle.

(4) The agency may adjust project rankings if the extent of petroleum contamination is later identified as posing an immediate threat to human health or the environment. The agency may also rerank projects within an application award cycle due to emergent conditions or new information.

(5) Applicants may not appeal the agency's project rankings.

History

Statutory Authority: RCW 70A.345.030. WSR 25-02-047, s 374-90-080, filed 12/20/24, effective 1/20/25.

Wash. Admin. Code § 374-90-090 Project prioritization—Heating oil tank owners or operators.

(1) The agency may rank each application to establish funding and project prioritization, which will determine timing on when project remediation work may occur and may limit funding offered based on the factors in subsection (3) of this section.

(2) To ensure that program funds are used to address contamination from heating oil tank releases, the agency may prioritize funding and timing of when project remediation may occur for projects that require immediate remediation and where it is known that the release is impacting surface water, groundwater used for drinking water, or a stormwater system.

(3) The agency will prioritize participants based on the time the application was submitted, general location information, and the following factors and any other factors PLIA deems relevant:

(a) Determine if the project location has contamination from a heating oil tank release and only requires remediation funding.

(b) The project location has contamination from a heating oil tank release and requires funding for remediation and infrastructure upgrade. Program funding is allocated to the cleanup of contamination from the heating oil tank release before allocation for infrastructure upgrades.

(d) The project location includes a vulnerable population as defined in RCW 70A.02.010(14), or an overburdened community as identified in RCW 70A.02.010(11).

(4) The agency may adjust project rankings when the extent of contamination from the heating oil tank release is later identified as posing a threat to human health or the environment.

(5) The program may re-rank or reassess applications due to emergent conditions or availability of new information. Affected applicants will be notified in writing.

(6) Applicants may not appeal the agency's project rankings.

History

Statutory Authority: RCW 70A.345.030. WSR 25-02-047, s 374-90-090, filed 12/20/24, effective 1/20/25.

Wash. Admin. Code § 374-90-100 Funding awards—Underground storage tank owners or operators.

(1) The agency may award funding for any amount up to, but not exceeding, the maximum amounts established in RCW 70A.345.030(2) for each applicant for a single petroleum underground storage facility.

(2) Program funding is awarded by loan, grant, agency-led remediation, or a combination of these. The total funding amount cannot exceed the maximum amount established in RCW 70A.345.030(2).

(3) An applicant is considered for the following award types.

(a) Loan.

(i) A loan award is for the amount that the participant is borrowing from the program. The participant will be charged with interest on the outstanding balance of moneys applied to project work. Financing and repayment terms will be described in the participant loan agreement.

(ii) The loan amount is reduced by any grant amount paid towards the preliminary planning assessment and the technical assistance program fee, if applicable.

(iii) Loan awards must be applied to remedial action prior to infrastructure upgrade costs.

(iv) Program participants may select their own consultant to perform remediation and infrastructure upgrades.

(b) Grant.

(i) A grant award is the amount that the program will pay towards the project work identified in the preliminary planning assessment.

(ii) All work may be performed by a prime consultant.

(iii) If applicants or participants are not able to secure access to the location for remediation work, the agency may rescind the award offer or terminate the participant agreement.

(i) A government grant may only be awarded to a state agency, local government, or a tribal government who is the owner or operator of a petroleum underground storage tank.

(ii) A grant award is the amount that the program will pay towards the project work identified in the preliminary planning assessment.

(iii) All work may be performed by a prime consultant.

(iv) If applicants or participants are not able to secure access to the location for remediation work, the agency may rescind the award offer or terminate the participant agreement.

(d) Agency-led remediation.

(i) Agency-led remediation funding is limited to costs associated with remedial action and is subject to cost recovery as provided in RCW 70A.345.070.

(ii) If applicants or participants are not able to secure access to the location for remediation work, the agency may rescind the award.

(iii) All remediation work will be conducted by a prime consultant.

(4) Program funding awards are made after:

(a) The department of health conducts a review of the applicant's financial circumstances and provides a recommendation (as applicable); and

(b) The agency reviews a completed preliminary planning assessment or a technically sufficient assessment that was submitted with the application.

(5) If selected for funding, any applicant with funding needs for remediation will enroll in the agency's technical assistance program with the enrollment fee paid from the funding awarded under this chapter.

(6) When PLIA issues an applicant a written program funding award, the agency may require a meeting to review the terms and conditions of the award. Applicants have 30 calendar days to either accept or decline the program funding award and, if accepting the award, must sign a participant agreement. If the applicant does not accept the program funding award after 30 calendar days, the award terminates.

(7) Funds are not dispersed directly to the participant except with the director's approval.

(8) The agency will directly pay the prime consultant or participant-selected contractor direct costs from the program funding award after review and approval of invoices.

(9) PLIA may terminate a program funding award or may adjust a ranking of an application if information about the project significantly differs from the preliminary planning assessment. If a program funding award is terminated or a ranking is adjusted, the agency will provide written notice to the applicant with an explanation.

History

Statutory Authority: RCW 70A.345.030. WSR 25-02-047, s 374-90-100, filed 12/20/24, effective 1/20/25.

Wash. Admin. Code § 374-90-110 Funding awards—Heating oil tank owners or operators.

(1) The agency may award funding in total of any amount up to, but not exceeding, the maximum amounts established in RCW 70A.345.030(2) for each applicant for a single heating oil tank.

(a) Program funding offered by grant is an amount up to, but not exceeding, $60,000.

(b) Where program funding is only a loan the amount is up to, but not exceeding, the maximum amounts established in RCW 70A.345.030(2) for each applicant for a single heating oil tank.

(c) Where a project is awarded a grant and loan, the program funding combined may not exceed the maximum amounts established in RCW 70A.345.030(2) for each applicant for a single heating oil tank.

(2) Program funding may be offered by loan, grant, or combination of both.

(3) A program funding award is determined after the agency reviews the preliminary planning assessment or technically sufficient assessment, and the department of health conducts an applicant financial review (as applicable). Applicants not seeking loan funding do not need a department of health review.

(4) If the program funding award is applied to remediation, then the applicant must enroll in the agency's technical assistance program. The enrollment fee will then be paid from the total funding award.

(5) The application will be considered for the following program funding award types.

(a) Loan.

(i) A loan award amount is reduced by the amount used for the preliminary planning assessment and the technical assistance program enrollment fee, if applicable.

(ii) Loan funding will be applied to remediation prior to infrastructure upgrades.

(iii) Program participants may select their own consultant to perform remediation and infrastructure upgrades.

(b) Grant.

(i) A grant award is the amount that the program will pay towards the project work identified in the preliminary planning assessment.

(ii) All work may be performed by a prime consultant.

(iii) If applicants or participants are not able to provide access to the location for remediation work, the agency may rescind the award offer or terminate the participant agreement.

(6) If applicants receive a written program funding award, the agency may require a meeting to review the terms and conditions of the award. Applicants have 30 calendar days to either accept or decline the program funding award and, if accepting the award, sign a participant agreement. If the applicant does not accept the program funding award after 30 calendar days, the award terminates.

(7) Funds are not dispersed directly to the participant except with the director's approval.

(8) The agency will directly pay the prime consultant or participant-selected contractor direct costs from the program funding award after review and approval of invoices.

(9) If required, applicants receiving a program funding award may have their award terminated or ranking adjusted when, in PLIA's discretion, information about the project significantly differs from the preliminary planning assessment. In that event, the agency will provide written notice to the applicant with an explanation.

History

Statutory Authority: RCW 70A.345.030. WSR 25-02-047, s 374-90-110, filed 12/20/24, effective 1/20/25.

Wash. Admin. Code § 374-90-120 Eligible and ineligible costs—Underground storage tank program funding awards.

(1) Program funding awards used for an asset (e.g., infrastructure), then that asset must have a useful life of at least 13 years.

(2) Loan funding. Eligible costs include, but are not limited to, the following:

(a) Remedial action, including excavation, treatment, and/or removal and proper disposal of any soil or water contaminated by the petroleum release and proper disposal of petroleum underground storage tanks.

(b) Testing and assessments to determine the nature and extent of a release of petroleum and whether cleanup standards have been met.

(c) Replacement of some surface features, including surface asphalt and concrete, curbs or lanes, and stormwater drainage as required by municipal law.

(d) Replacement costs for a new petroleum underground storage tank and certain equipment related to the operation of the affected tank.

(e) Some infrastructure upgrades, including alternative energy fueling facilities.

(3) Grant funding. Eligible grant costs include, but are not limited to, the following:

(b) Testing and assessments to determine the extent and severity of a release of petroleum and whether cleanup standards have been met.

(c) Replacement of some surface features, including surface asphalt and concrete, curbs or lanes, and stormwater drainage as required by municipal law.

(4) Ineligible costs for any program funding award. The program will not pay for ineligible costs incurred by the program participant. PLIA has discretion to determine whether costs are ineligible.

(5) Ineligible costs include, but are not limited to, the following:

(a) Costs covered by other valid insurance or warranties.

(b) Remedial action that exceeds cleanup levels required by the agency or MTCA.

(c) Remedial action to address a release of petroleum from or damage to a petroleum underground storage tank, or its system, or surrounding property caused by the owner or operator, an owner/operator's contractor, or the prime consultant.

(d) Replacement of tanks that were decommissioned or nonoperational at the time of a release.

(e) Any legal costs.

(f) Costs not included in an agency-approved scope of work.

(g) Costs incurred by the participant after the date the participant received a termination letter.

(h) Business related expenses, including:

(i) Costs related to development of the application package.

(ii) Costs for a business to remain operational during remedial activities.

(iii) Costs for lost revenue, including lost business income resulting from closures related to the release or remediation.

(iv) Retroactive costs.

History

Statutory Authority: RCW 70A.345.030. WSR 25-02-047, s 374-90-120, filed 12/20/24, effective 1/20/25.

Wash. Admin. Code § 374-90-130 Eligible and ineligible costs—Heating oil tanks.

(1) Program funding award must be used for improvements (e.g., heating oil tank) that have a useful life of at least 13 years.

(2) Loan funding. Eligible loan costs include, but are not limited to, the following:

(a) Remedial actions, including excavation, treatment, and/or removal and proper disposal of any soil or water contaminated by the petroleum release and proper disposal of heating oil tanks.

(b) Testing and assessments, including:

(i) Costs necessary to determine the nature and extent of the petroleum release.

(ii) Soil sampling, water sampling, soil vapor sampling, and testing to determine if cleanup standards are met.

(c) Replacement of some surface features, including surface asphalt and concrete, curbs or lanes, and stormwater drainage required by municipal law.

(d) Infrastructure upgrades, including:

(i) Replacement costs for a new heating oil tank that meets the current standards for such tanks, as specified in guidance policy.

(ii) Replacement of certain equipment related to the operation of the affected tank.

(e) Replacement of the heating oil tank and infrastructure with heating infrastructure including:

(i) Alternative energy heating systems.

(ii) Upgrades to existing home heating oil systems.

(f) Other costs included within an agency-approved scope of work.

(3) Grant funding. Eligible grant costs include, but are not limited to, the following:

(a) Remedial actions, including excavation, treatment, and/or removal and proper disposal of any soil or water contaminated by the petroleum release and proper disposal of heating oil tanks.

(b) Testing and assessments, including:

(i) Costs necessary to determine the nature and extent of the petroleum release.

(ii) Soil sampling, water sampling, soil vapor sampling, and testing to determine if cleanup standards are met.

(c) Replacement of some surface features, including surface asphalt and concrete, curbs or lanes, and stormwater drainage as required by municipal law.

(d) Other costs included within an agency-approved scope of work.

(4) Loan or grant funding. Ineligible costs will not be paid with program funds. The program is not responsible for paying any ineligible costs incurred by the participant. Ineligible costs include, but are not limited to, the following:

(a) Costs covered by other valid insurance or warranties.

(b) Remedial action that exceeds cleanup levels required by the agency or MTCA.

(c) Remedial action to address a release or damage to a heating oil tank or its system or surrounding property caused by the owner or operator, the owner/operator's contractor, or the prime consultant.

(d) Replacement of tanks that were decommissioned, temporarily out of service, or abandoned at the time of a release of petroleum.

(e) Any legal costs, including the costs of legal representation, expert fees, and related costs and expenses incurred in defending against claims or actions.

(f) Costs not included in an agency-approved scope of work.

(g) Costs incurred by the participant after the date the participant received a termination letter.

(h) Temporary heat restoration.

(i) Business related expenses, including:

(i) Costs needed to develop the application package.

(ii) Costs for a business to remain operational during remedial activities.

(iii) Costs for lost revenue.

(iv) Retroactive costs.

History

Statutory Authority: RCW 70A.345.030. WSR 25-02-047, s 374-90-130, filed 12/20/24, effective 1/20/25.

Wash. Admin. Code § 374-90-140 Participant program termination.

(1) The agency may terminate the program funding award, in whole or in part, for any of the following situations.

(a) The participant fails to comply with the program funding award terms and conditions.

(b) The participant and agency mutually agree to the suspension or termination of the program funding award.

(2) The agency may immediately terminate a loan or grant without notice when necessary to protect the interests of the state.

(3) The participant will be notified in writing if the agency terminates the program funding award. A cost calculation, record keeping, and program summarization process will begin no later than one week after written notice of the termination has been mailed to the participant. The notice will describe the procedures necessary to close out participation in the program. The participant will repay the remainder of the loan according to the established loan terms.

History

Statutory Authority: RCW 70A.345.030. WSR 25-02-047, s 374-90-140, filed 12/20/24, effective 1/20/25.

Wash. Admin. Code § 374-90-150 Overpayments.

(1) The agency may require an owner or operator or prime consultant to return any overpayment made by the program. Overpayments may occur if:

(a) Another party, such as an insurer, has paid costs prior to payments from the program; or

(b) The agency discovers an accidental overpayment has been made to an owner, operator, or prime consultant for any reason.

(2) If an overpayment is not paid upon demand, the agency may pursue one of the following actions:

(a) Collections. The agency may request cost recovery with a debt collection agency.

(b) Lien filing. The agency may seek cost recovery of remedial action costs from any liable person by filing a lien on the petroleum underground storage tank facility as authorized under RCW 70A.345.070.

(c) Civil action. The agency may request the attorney general's office to commence a civil action against the owner or operator in superior court to recover costs and the agency's administrative and legal expenses to pursue recovery.

History

Statutory Authority: RCW 70A.345.030. WSR 25-02-047, s 374-90-150, filed 12/20/24, effective 1/20/25.

Wash. Admin. Code § 374-90-160 Fraud and material omissions.

(1) The agency may seek return of payments made if:

(a) Any party misrepresents or omits material facts relevant to the agency's determination of coverage; or

(b) Any party, with intent to defraud, initiates a loan or grant request or issues or approves an invoice or request for payment, with knowledge that the information submitted is false in whole or in part.

(2) If the agency determines that any party has committed program fraud or omitted material information, the agency may request the attorney general's office to:

(a) Commence a civil action against the person in superior court; or

(b) Recover the overpayment and other expenses as determined by a court.

(3) If the agency determines that the owner or operator of an enrolled petroleum underground storage tank omitted material facts or intentionally defrauded the program, it will terminate program enrollment, and any person or party determined to have committed program fraud may be prohibited from applying for future funding. The agency will report instances of fraud to the appropriate authorities including criminal referral for prosecution.

(4) Any party participating in the program must agree to allow the agency to conduct financial audits related to the receipt of payments intended for remedial actions.

History

Statutory Authority: RCW 70A.345.030. WSR 25-02-047, s 374-90-160, filed 12/20/24, effective 1/20/25.

Chapter 374-100 State Environmental Policy Act (SEPA).

Wash. Admin. Code § 374-100-010 Authority.

The pollution liability insurance agency adopts these rules under RCW 43.21C.120 (State Environmental Policy Act) and chapter 197-11 WAC (SEPA rules).

History

Statutory Authority: RCW 43.21C.120. WSR 20-02-007, § 374-100-010, filed 12/18/19, effective 1/18/20.

Wash. Admin. Code § 374-100-020 Adoption 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.

History

Statutory Authority: RCW 43.21C.120. WSR 20-02-007, § 374-100-020, filed 12/18/19, effective 1/18/20.

Wash. Admin. Code § 374-100-030 Purpose.

(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.

History

Statutory Authority: RCW 43.21C.120. WSR 20-02-007, § 374-100-030, filed 12/18/19, effective 1/18/20.

Wash. Admin. Code § 374-100-040 Additional 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.

History

Statutory Authority: RCW 43.21C.120. WSR 20-02-007, § 374-100-040, filed 12/18/19, effective 1/18/20.

Wash. Admin. Code § 374-100-050 Categorical 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;

(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;

(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).

History

Statutory Authority: RCW 43.21C.120. WSR 20-02-007, § 374-100-050, filed 12/18/19, effective 1/18/20.

Wash. Admin. Code § 374-100-060 Summary 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.

(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.

History

Statutory Authority: RCW 43.21C.120. WSR 20-02-007, § 374-100-060, filed 12/18/19, effective 1/18/20.

Wash. Admin. Code § 374-100-070 Timing 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.

History

Statutory Authority: RCW 43.21C.120. WSR 20-02-007, § 374-100-070, filed 12/18/19, effective 1/18/20.

Wash. Admin. Code § 374-100-080 Lead 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).

History

Statutory Authority: RCW 43.21C.120. WSR 20-02-007, § 374-100-080, filed 12/18/19, effective 1/18/20.

Wash. Admin. Code § 374-100-090 Availability, 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;

(d) Post notices and environmental documents on PLIA's website.

(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;

(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.

History

Statutory Authority: RCW 43.21C.120. WSR 20-02-007, § 374-100-090, filed 12/18/19, effective 1/18/20.

Wash. Admin. Code § 374-100-100 Agency policy—Substantive 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.

History

Statutory Authority: RCW 43.21C.120. WSR 20-02-007, § 374-100-100, filed 12/18/19, effective 1/18/20.

Wash. Admin. Code § 374-100-110 Designation 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.

History

Statutory Authority: RCW 43.21C.120. WSR 20-02-007, § 374-100-110, filed 12/18/19, effective 1/18/20.

Wash. Admin. Code § 374-100-120 Procedures 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.

History

Statutory Authority: RCW 43.21C.120. WSR 20-02-007, § 374-100-120, filed 12/18/19, effective 1/18/20.

Wash. Admin. Code § 374-100-130 Severability.

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.

History

Statutory Authority: RCW 43.21C.120. WSR 20-02-007, § 374-100-130, filed 12/18/19, effective 1/18/20.