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Chapter 374-80 WAC

Last Update: 12/26/19

ADVICE AND TECHNICAL ASSISTANCE PROGRAM

WAC Sections

HTMLPDF374-80-010Authority and purpose.
HTMLPDF374-80-020Definitions.
HTMLPDF374-80-040Procedures.
HTMLPDF374-80-045Environmental covenant.
HTMLPDF374-80-050Reimbursement.
HTMLPDF374-80-060Liability.
DISPOSITION OF SECTIONS FORMERLY CODIFIED IN THIS TITLE
374-80-030Communications. [Statutory Authority: Chapter 70.149 RCW. WSR 97-20-094, § 374-80-030, filed 9/29/97, effective 10/30/97.] Repealed by WSR 20-02-071, filed 12/26/19, effective 1/26/20. Statutory Authority: RCW 70.149.040.


PDF374-80-010

Authority and purpose.

The purpose of this chapter is to establish a program for providing technical assistance to a person regarding a release or suspected release of (1) heating oil from an active, decommissioned, or abandoned heating oil tank; or (2) petroleum from a qualified petroleum storage tank system. Under this program, the agency will provide advice and technical assistance regarding a completed or proposed independent remedial action and application of chapters 70.149 and 70.105D RCW.
Any opinion provided by the agency under this program is advisory only and not binding upon either the agency or the department of ecology. Participation in this program is not a settlement with the state under the Model Toxics Control Act. Persons conducting independent remedial actions do so at their own risk, and may be required to take additional remedial actions by the department of ecology if such actions are determined to be necessary under the Model Toxics Control Act.
[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.]



PDF374-80-020

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 that is in use.
(3) "Agency" means the Washington state pollution liability insurance agency (PLIA).
(4) "Applicant" means the person seeking advice and assistance from the petroleum technical assistance program, whose application has been accepted by the agency.
(5) "Decommissioned heating oil tank" means a heating oil tank system that has been removed from operation by an approved method such as abandonment in place (e.g., cleaning and filling with an inert material) or by removal from the ground.
(6) "Director" means the director of the Washington state pollution liability insurance agency.
(7) "Heating oil" means any petroleum product used for space heating in oil-fired furnaces, heaters and boilers, including stove oil, diesel fuel, or kerosene. "Heating oil" does not include petroleum products used as fuel in motor vehicles, marine vessels, trains, buses, aircraft, or any off-highway equipment not used for space heating, or the generation of electrical energy or waste oil, hoists, pipelines, spills from transportation or a form of transport.
(8) "Heating oil tank system" means a tank and its connecting pipes, whether above or below ground, or in a basement, with pipes connected to the tank for space heating of human living or working space on the premises where the tank is located.
(9) "MTCA" means the Model Toxics Control Act, chapter 70.105D RCW and implementing regulations in chapters 173-340 and 173-204 WAC.
(10) "Petroleum" means any petroleum-based substance including crude oil or any fraction that is liquid at standard conditions of temperature and pressure. The term petroleum includes, but is not limited to, petroleum and petroleum-based substances comprised of a complex blend of hydrocarbons, such as motor fuels, jet fuels, distillate fuel oils, residual fuel oils, lubricants, petroleum solvents, used oils, mineral spirits, Stoddard solvents, waste oils and heating oils. The term petroleum does not include propane, asphalt, or any other petroleum product that is not liquid at standard conditions of temperature and pressure. Standard conditions of temperature and pressure are at sixty degrees Fahrenheit and 14.7 pounds per square inch absolute.
(11) "Petroleum storage tank system" means a storage tank system that contains petroleum or a mixture of petroleum with de minimis quantities of other substances. The systems include those containing motor fuels, jet fuels, distillate fuel oils, residual fuel oils, lubricants, petroleum solvents, used oils, and heating oils. "Petroleum storage tank system" does not include any storage tank system regulated under chapter 70.105 RCW.
(12) "Program" means petroleum technical assistance program.
(13) "Qualified petroleum storage tank system" means a storage tank system that has been identified as eligible for services under the petroleum technical assistance program by the department of ecology based on the relative risk posed by the release to human health and the environment.
(14) "Release" means any intentional or unintentional entry of 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 70.105D.020.
(16) "Sampling and testing" means a PLIA-approved and recognized technique(s) or procedure(s) for measuring or determining the presence and extent of hydrocarbons in soil and/or water.
(17) "Site" has the same meaning as "facility" as defined in RCW 70.105D.020.
(18) "Site characterization" means an investigation of the nature and extent of the release.
[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.]



PDF374-80-040

Procedures.

(1) Application. To receive advice and technical assistance under this program, a person who is conducting or otherwise interested in independent remedial actions where there is a suspected or confirmed release of petroleum or heating oil from a qualified petroleum storage tank system or a heating oil tank, must submit an application provided by the agency requesting advice and assistance and agreeing to the terms of the program.
(2) Eligibility. An applicant that has received funding from the PLIA underground storage tank loan and grant program; the heating oil pollution liability insurance program; or the commercial underground storage tank reinsurance program are presumed eligible for the program unless a specific determination is made by PLIA or the department of ecology that the applicant does not have a qualified petroleum storage tank system.
(3) Services. The agency may provide the following advice and technical assistance under the program:
(a) Observe and/or interpret the results of sampling and testing, site characterization results, or other appropriate assessments conducted by the applicant;
(b) Provide technical assistance on how to meet the substantive requirements of MTCA;
(c) Review planned independent remedial actions for a site or property and provide written opinions on whether further remedial action is likely necessary to meet the substantive requirements of MTCA;
(d) Review completed independent remedial actions for a site or property and provide written opinions on whether further remedial action is necessary to meet the substantive requirements of MTCA; and
(e) Other appropriate activities approved by the director.
(4) The applicant may select an independent contractor to perform site characterization, sampling and testing, or other remedial actions. The independent contractor is not to be considered for any purpose an employee or agent of PLIA. The applicant will enter into an agreement with the contractor regarding scope or extent of work and fees for services.
(5) Sampling, testing, and site characterization protocols. The agency will provide requested advice and technical assistance only if sampling, testing, and site characterization are performed in accordance with protocols approved by the director.
(6) Rescinding opinions. The agency may rescind a no further action determination if PLIA's understanding of the conditions at the site change and the site no longer meets the substantive requirements of MTCA.
(a) Where the issues are minor or administrative in nature, the agency will provide the applicant with a notice of suspension detailing the issues to be addressed. The applicant will have sixty days to address the issues. If the issues are addressed to PLIA's satisfaction, the notice of suspension will be removed. If the issues are not addressed to PLIA's satisfaction, the agency will issue a letter rescinding the no further action determination. PLIA may notify the department of ecology of this action.
(b) Where the issues are substantive in nature, the agency will issue a letter rescinding the no further action determination. PLIA will notify the department of ecology of this action.
[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.]



PDF374-80-045

Environmental covenant.

(1) Consultation. Where PLIA issues a written opinion under this program, and the remedial action requires an environmental covenant, PLIA must consult with and seek comment on the draft environmental covenant from a city or county department with land use planning authority for real property subject to the covenant. The consultation and opportunity for comment must take place before the property owner records the environmental covenant.
(2) Periodic review. Where PLIA has issued a written opinion under this program, and the remedial action requires an environmental covenant, PLIA must conduct a review of the effectiveness of the environmental covenant periodically. The agency must conduct the periodic review at least once every five years.
(3) Violation. If the terms of the environmental covenant are not complied with, the agency may rescind the no further action determination.
(a) Where the issues are minor or administrative in nature, the agency will provide the applicant with a notice of suspension detailing the issues to be addressed. The applicant must address the issues within sixty days. If the issues are addressed to PLIA's satisfaction, the notice of suspension will be removed. If the issues are not addressed to PLIA's satisfaction, the agency will issue a letter rescinding the no further action determination. PLIA may notify the department of ecology of this action.
(b) Where the issues are substantive in nature, the agency will issue a letter rescinding the no further action determination. PLIA will notify the department of ecology of this action.
(4) Termination. If the conditions at the site requiring an environmental covenant no longer exist, the property owner may petition the agency to have the covenant terminated. PLIA will seek public comment on the proposed termination of the environmental covenant. If, after the public comment period, PLIA agrees to termination of the environmental covenant, the agency will seek termination by consent of the covenant.
(5) Reimbursement. The agency may recover costs related to environmental covenants from the applicant and/or the property owner. These costs are not covered by WAC 374-80-050.
[Statutory Authority: RCW 70.149.040. WSR 20-02-071, § 374-80-045, filed 12/26/19, effective 1/26/20.]



PDF374-80-050

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 fee for providing advice and technical assistance under this program is:
(a) One thousand dollars if there is a release or suspected release of heating oil from an active, decommissioned, or abandoned heating oil tank system.
(b) Seven thousand five hundred dollars if there is a release or threatened release of petroleum from a qualified petroleum storage tank system.
(3) The applicant must pay the fee upon acceptance into the program. No advice or technical assistance will be provided until the fee has been paid.
(4) The fee is nonrefundable. However, if the agency determines that an applicant's petroleum storage tank system is ineligible after the applicant enters the program, the agency may refund the fee.
(5) Fees received by the agency under the program must be deposited in the heating oil pollution liability trust account.
[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.]



PDF374-80-060

Liability.

(1) The state of Washington and/or the pollution liability insurance agency accepts no liability, nor portion of liability, from the heating oil tank owner or operator.
(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.
[Statutory Authority: Chapter 70.149 RCW. WSR 97-20-094, § 374-80-060, filed 9/29/97, effective 10/30/97.]