surface coating cleanup and disposal, associated

Contains

18) Persons ((Rot sttbjeet to repoftiflg Fetjttifem.eflts who (a) The particular act of noncompliance; lose exefflptiofl stattts dttriflg a eertifieatiofl period shall (b) The proposed period of disqualification; register for em.ploym.eat at the hottsehold's)) who lose their (c) Notification that the individual or household may re.:: exemption status due to a nonreportable change in circum- apply at the end of the disqualification period; and stance shall be work registered at their next recertification. (d) Information describing the action the individual or (19) A registrant moving out of the jurisdiction of the household may take to end or avoid the sanction. department's local office where the registrant is registered (14) The disqualification period for noncompliance shall shall reregister at the department local office in the new be for two months or until the noncompliant member moves location. from the household, becomes exempt for reasons other than (20) The household shall be held liable for any subsection (3) (c) and (d) of this section, or complies, overissuances resulting from erroneous information given by whichever is earlier. the household member or the household's authorized (a) If the noncompliant member moves from the representative. household, the household may resume participation. (21) Each household has a right to a fair hearing to ill If the noncom pliant member moves from the appeal a denial, reduction, or termination of benefits due to: household and joins another household: (a) A determination of nonexempt status; or [ 55] Proposed WSR 94-19-074 Washington State Register, Issue 94-19 (b) Failure to comply with work registration and earnings of less than the federal minimum wage multiplied employment and training program requirements; or by twenty hours; and (c) Determination of noncompliance with a comparable (i) Leaving a job in connection with patterns of employ- work program under Titles IV-A and IV-C of the Social ment where workers frequently move from one employer to Security Act, as amended, or UC requirement. another, such as migrant farm labor or construction work. (22) ((f)&HS.)) The department of social and health (3) A household where the ((head of)) household services shall administer the program and may contract E&T employment representative voluntarily quit ((the head of services through other agencies. ho1:1sehold' s)) their most recent job shall not be ineligible if the circumstances of the employment involve: Reviser's note: RCW 34.05.395 requires the use of underlining and (a) Changes in employment status resulting from deletion marks to indicate amendments to existing rules. The rule published ((red1:1eiRg)) reduced hours of employment while working for above varies from its predecessor in certain respects not indicated by the use of these markings. the same employer; (b) Termination of a self-employment enterprise; or AMENDATORY SECTION (Amending Order 2870, filed (c) Resignation from a job at the demand of an employ- 9/12/89, effective 10/13/89) er. (4) An employee of the federal government or of a state WAC 388-49-380 Voluntary quit. (1) A household or local government who participates in a strike against the where the ((head of)) household employment representative government and is subsequently dismissed because of voluntarily quit his or her most recent job without good participation in the strike, shall be considered to have cause shall be ineligible if: voluntarily quit a job without good cause. (a) The employment involved twenty hours or more per (5) If a quit was without good cause, the department week or provided weekly earnings equivalent to twenty times shall: the minimum wage; (a) Deny a hous~hold' s application for a period of (b) The quit occurred within sixty days prior to applica- ninety days beginning with the day of quit; or tion or any time thereafter; and (b) For participating households, disqualify the house- (c) The ((head of)) household ((-i-5-)) employment hold for three months. The disqualification shall start the representative was, at the time of the voluntary quit, required first of the month following the adverse action period. to register for work as provided under WAC 388-49-360. (6) ((If a ROReom13liaRt head of ho1:1sehold lea.,·es the (2) Good cause for voluntarily quitting employment ho1 1seh0Jd, the FemaiftiRg ho1 1sehold memBefS shall R0 )ORgef includes the following: Be saRetiORed. If the head of ho1:1sehold eommittiRg the (a) Circumstances included under WAC 388-49-360(12); violatioH joiRs aRothef ho1 1sehold as the head of ho1 1sehold, (b) The employment is unsuitable as defined under the aaltrnee Of the SaRetiOH shall Be im13osed OH the Hew WAC 388-49-370; ho1 1sehold. If the violatof joiRs a Hew ho1 1sehold aHd is Rot (c) Discrimination by an employer based on age, race, the ho1:1sehold head, the saRetioH eRds. If a Hew 13efSOR who sex, color, handicap, religious belief, national origin, or has 11ot eommitted a violatio11 joiRs the hotisehold as its political belief; head, the 13efiod of iReligiaility e11ds. (d) Work demands or conditions rendering continued f+1)). The household shall have primary responsibility for employment unreasonable, such as working without being providing verification. If the household and the department paid on schedule; are unable to obtain verification, the department shall not (e) Acceptance by the ((head of)) household employ- deny the household access to the program. ment representative of employment or enrollment of at least ((f&t)) ill The household may re:.establish eligibility half time in any recognized school, training program, or during the disqualification, if otherwise eligible, and the institution of higher education including fulfillment of the person who caused the disqualification: provisions under WAC 388-49-330, requiring the ((head of)) (a) Secures new employment: household employment representative to leave employment; (i) Comparable in monthly salary to the job the person (f) Acceptance by any other household member of quit; or employment or enrollment at least half time in any recog- (ii) ((li-ftt)) Of a lesser monthly salary, that is expected nized school, training program, or institution of higher to improve the person's future employment prospects. education in another county or similar political subdivision · (b) Leaves the household; requiring the household to move thereby requiring the ((head (c) Becomes exempt from work registration for reasons et)) household employment representative to leave employ- other than under WAC 388-49-360 (3)(c) and (d); or ment; (d) Complies with requirements to correct the disqualifi- (g) Resignations by persons under sixty years of age cation. recognized by the employer as retirement; (8) If the noncompliant member moves from the (h) Acceptance of a bona fide offer of employment of household and joins another household: twenty hours or more a week or where the weekly earnings (a) As the household employment representative, the are equivalent to the federal minimum wage multiplied by entire new household is ineligible for the remainder of the twenty hours which, because of circumstances beyond the disqualification period; or control of the ((head of)) household employment representa- (b) As other than the household employment representa- tive, subsequently either does not materialize or results in tive, the department shall consider the noncompliant individ- employment of twenty hours or less a week or weekly ual as an ineligible household member of the new household for the remainder of the disqualification period. Proposed [ 56] Washington State Register, Issue 94-19 WSR 94-19-074 (9) If a new person who has not committed a violation the lead agency is determined for Class IV Forest Practices. joins a sanctioned household: It is anticipated that the rule will assist lead agencies and the (a) As the household employment representative the public by preventing duplication, making planning and other period of ineligibility ends; or decisions better through early input into the environmental (b) As other than the household employment representa- effects. tive, the disqualification continues. Proposal Changes the Following Existing Rules: The proposed changes provide for concurrent review and com- ment periods, encourages combined documents, provides for the use of scoping prior to a threshold determination, and WSR 94-19-083 clarifies when and how lead agency status for Class IV PROPOSED RULES Forest Practices are made. DEPARTMENT OF ECOLOGY [Filed September 21, 1994, 8:08 a.m.] Has a Small Business Economic Impact Statement Been Prepared Under Chapter 19.85 RCW? No. The rules are Original Notice. applicable to governmental agencies and less than ten Title of Rule: Amendments to State Environmental percent of any industry is likely to be affected by the Policy Act rules, chapter 197-11 WAC. proposed action. Purpose: The rules amend chapter 197-11 WAC to Hearing Location: Public Works Building, clarify policies and provide guidance for early integration of Commissioner's Hearing Room, West 1026 Broadway, SEPA requirements into GMA planning process. It also Spokane, on October 27, 1994, at 7:30 p.m.; at the Everett establishes SEPA procedures for MTCA cleanup actions and City Hall, 3002 Wetmore, Everett, on November I, 1994, at clarifies lead agency responsibilities. 7:30 p.m.; Cowlitz County Training Center, 1942 First, Other Identifying Information: The rule also makes Kelso, on November 2, 1994, at 7:30 p.m.; and at the reference changes to bring the SEP A rules and language into Kittitas County Courthouse County Extension Office, 5th and compliance with the Administrative Procedure Act. Main, Ellensburg, on November 3, 1994, at 7:30 p.m. Statutory Authority for Adoption: RCW 43.21C.110, Assistance for Persons with Disabilities: Contact chapter 34.05 RCW. Marvin Vialle by October 14, 1994, TDD (206) 407-6006, Statute Being Implemented: Chapter 43.21C RCW. or (206) 407-6631. Summary: The proposed rules incorporate integration Submit Written Comments to: Marvin Vialle, Depart- principles and processes for growth management and SEPA. ment of Ecology, Environmental Review, P.O. Box 47703, Reconcile potentially duplicative aspects of SEPA and GMA, Olympia, WA 98504-7703, FAX (206) 407-6907, by specifically environmentally sensitive areas and critical areas. November 18, 1994. It integrates the procedural requirements and documents of Date of Intended Adoption: December 15, 1994. SEP A with the procedures and documents under chapter September 19, 1994 70. IOSD RCW, Model Toxics Control Act. The rule also Mary Riveland clarifies lead agency responsibilities for Class IV forest Director practices and mining operations. Reasons Supporting Proposal: By incorporating NEW SECTION environmental review at early stages in the planning process the plans and regulations better reflect environmental values WAC 197-11-200 Purpose. The purpose of this part and public concerns. By combining processes and docu- is to: ments cost savings can result and a better understanding of (1) Authorize integrated compliance with SEPA and the the impacts of decisions can be achieved. Growth Management Act (GMA) so as to ensure that Name of Agency Personnel Responsible for Drafting: environmental analyses required under SEPA can occur Marvin Vialle, P.O. Box 47703, Olympia, WA 98505-7703, concurrently with and as an integral part of the planning and Lacey, WA, phone (206) 407-6928; Implementation: State decision making required under GMA. Nothing in this part and local government; and Enforcement: Lead agencies - is intended to jeopardize the adequacy or require the revision state and local. of any SEPA and GMA processes, analyses or document Name of Proponent: Department of Ecology, govern- deadlines specified in GMA. mental. (2) Integrate the procedures and documents of SEPA Rule is not necessitated by federal law, federal or state with the procedures and documents under chapter 70. IOSD court decision. RCW (toxics cleanup). Explanation of Rule, its Purpose, and Anticipated Effects: The rule addresses the integration of SEP A with NEW SECTION other state laws and rules by making it easier and clearly WAC 197-11-210 Applicability. Jurisdictions plan- authorized to combine documents and processes of the laws, ning under GMA may use the procedures of these rules to namely growth management and the Model Toxic Control satisfy the requirements of SEPA for GMA actions. The Act. For SEPNGMA it encourages early environmental procedures relating to the Model Toxics Control Act (WAC analysis by providing for expanded early scoping prior to a 197-11-250 through 197-11-268) shall be used where threshold determination, broadening phased scoping to applicable. correspond to GMA timing, and clarifying the use of joint (combined) documents. For MTCA it provides guidance for joint processes and document. In addition, it clarifies how [ 57] Proposed WSR 94-19-083 Washington State Register, Issue 94-19 NEW SECTION GMA/SEPA process that is underway and identify how cumulative impacts are being considered in this overall WAC 197-11-220 Definitions. For purposes of SEPA: process. (1) "Formal SEPA documents" mean: (a) A nonproject environmental checklist/DNS; NEW SECTION (b) A notice of adoption with or without an addendum; (c) An addendum; WAC 197-11-230 Timing of an integrated (d) An EIS; or GMA/SEPA process. (1) "Preparation and review of SEPA (e) An integrated GMA document. documents." A formal SEPA document (which may be a (2) "GMA" means the Growth Management Act, chapter draft integrated GMA document under WAC 197-11-235): 36.70A RCW and those statutes codified in other chapters of (a) Shall be prepared and issued no later than the time the Revised Code of Washington that were enacted or that a proposed GMA action is issued for public and amended as part of chapter 17, Laws of 1990 1st ex. sess. interagency review; and chapter 32, Laws of 1991 sp. sess. (b) Shall be provided: (3) "Proposed GMA action" means a proposal for a (i) To the legislative body that will consider issuing a GMA action that has been issued for public and interagency GMA action; and comment and is being considered for adoption by a local (ii) To any advisory body designated by the local legislative body at least sixty days prior to final adoption legislative body or chief executive of the city or county to under RCW 36. 70A. l 06. It does not include drafts, prelimi- make a formal recommendation to the local legislative body nary drafts, or other materials or processes that have been on whether to propose a GMA action, including planning used to develop GMA documents or elements of GMA commissions and citizen advisory groups. The draft docu- documents. Such drafts are not considered a "proposal" or ment shall also be circulated as otherwise required of formal "proposed action" under WAC 197-11-055 and 197-11-406. SEPA documents. (4) "GMA action" means policies, plans and regulations (2) "Threshold determinations." A SEPA threshold adopted or amended under RCW 36.70A.210. Actions do determination: not include preliminary determinations on the scope and (a) May be made at any time, as long as it is early content of GMA actions, appeals of GMA actions, actions by enough in the process so that the appropriate environmental the governor or by the growth management hearings boards. document can accompany or be combined with a proposed (5) "Integrated GMA document" means a GMA docu- GMA action; ment which contains or combines other relevant analyses (b) Shall be made early in the planning for the GMA including environmental analysis under SEPA. action if the responsible official can determine under WAC 197-11-330 that a significant adverse environmental impact NEW SECTION is likely to result from the implementation of the GMA action being developed; WAC 197-11-228 Overall integration procedures. (c) Is not required when there has been a previous (1) "Joint process." These rules provide full authority for threshold determination or a notice of adoption or an GMA jurisdictions to carry out SEPA and GMA processes, addendum is prepared, except when a new threshold determi- analyses and documents together. Nothing in these rules nation is required pursuant to WAC 197-11-600(3). should be construed to discourage, prohibit, or conflict with (3) If a formal SEPA document is issued concurrently integrating SEPA and GMA. with a proposed GMA action which has a public comment (2) "Phasing and level of detail." To integrate SEPA period, the public comment period on the formal SEPA and GMA: document shall be the same as the comment period on the (a) The appropriate scope and level of detail of environ- GMA action, provided the comment period is not less than mental review should be tailored to the GMA action being otherwise required of a SEPA document. (See WAC 197- developed or considered for adoption. 11-340 (2)(c) and 197-11-455(6)). (b) Jurisdictions are authorized to modify SEPA phased review as necessary to track the phasing of GMA actions, as NEW SECTION provided in GMA and the procedural criteria in chapter 365- 195 WAC. (For example, actions of narrower scope, such WAC 197-11-232 Integration procedures for prelim- as interim urban growth boundaries or development regula- inary planning, environmental analysis, and expanded tions, subarea plans, and plan elements may be adopted prior scoping. ( 1) Preliminary environmental analyses. As part to GMA actions of broader•scope, such as an overall of the planning process, GMA jurisdictions may prepare comprehensive plan revision.) environmental analyses for use by decision makers and the (c) The process of integrating SEPA and GMA should public to assist in developing and reviewing preliminary begin at the early stages of plan development. One purpose drafts of GMA documents. Environmental analyses prepared of an integrated GMA document (see WAC 197-11-235) is for use in preliminary GMA planning: to bring early studies together for agency and public review (a) Do not require a threshold determination. later in the planning and environmental review process (see (b) May be separate from, or woven into, issue papers WAC 197-11-230(2) and 197-11-235). Although early or other agency planning materials or presentations. planning documents and environmental analyses such as (c) May use the format of SEPA documents, including documents on concepts or plan elements may serve specific a nonproject environmental checklist (Part D of WAC 197- purposes and are not each required to be comprehensive in 11-960) or addendum (WAC 197-11-706, 197-11-625), scope, they should explain their relationship to the overall Proposed [ 58 ] Washington State Register, Issue 94-19 WSR 94-19-083 which are intended to be flexible and may be used at any (b) If an environmental checklist is used, only Parts A time in the SEPA process. (which serves as a fact sheet), C (responsible official's ~ (d) May include evaluation of issues and concerns that signature), and D (nonproject checklist) need be prepared, , are not required in SEPA documents, such as economic or plus an environmental summary as specified in WAC 197- other factors identified in GMA, SEP A, and WAC 197-11- 11-235(5). Part D and the summary may be combined. 448. (c) If an addendum is to accompany or be incorporated (2) "Expanded scoping." into an integrated GMA document, it shall contain the (a) Timing and use. Expanded scoping may be used information specified in WAC 197-11-235(5) for an environ- prior to a threshold determination to meet one or more of the mental summary. purposes stated in WAC 197-11-030, 197-11-225, 197-11- (4) "Plan/EIS documents." Because these documents 230, 197-11-235 and 197-11-410(2). Expanded scoping may need to contain sufficient analysis for GMA actions, the initiate or be combined with any early GMA planning same documents that meet GMA planning needs should activities such as "visioning," development of alternative constitute the SEPA documents for GMA actions and should concepts or elements, or scoping of possible GMA actions provide a basis for future decisions on projects. An integrat- and studies. Scoping under WAC 197-11-408 may also be ed document will constitute the necessary SEP A document, used for these purposes if a determination of significance has if accompanied by the following (as further specified by been issued. subsections (5) through (7) of this section): (b) Notice. An expanded scoping notice may be issued (a) Environmental summary and fact sheet; separately from or without a threshold determination. If so (b) Concise analysis of alternatives; the notice should explain that SEPA determinations and (c) Comments and responses; and documents will occur later and that scoping is starting early (d) Appropriate technical and other materials. to assist and involve the public, tribes and agencies in (5) "Environmental summary and fact sheet." formulating a specific proposed GMA action and identifying (a) The environmental summary includes the contents useful environmental analyses. required in WAC 197-11-440(4). It should emphasize the major conclusions, significant areas of controversy and NEW SECTION uncertainty, if any, and the issues to be resolved, including WAC 197-11-235 Documents. (1) "Integrating the environmental choices to be made and the effectiveness documents." Formal SEP A documents may be prepared as of mitigation measures. The summary is not to be a summary of the_GMA action. companion documents to accompany proposed GMA actions or may be integrated into the documentation of GMA (b) The summary should highlight from an environmen- ~ actions. This section clarifies how WAC 197-11-640 (all tal perspective the main options that would be preserved or J SEPA documents) and WAC 197-11-425 through 197-11- foreclosed by the proposed GMA action. It should reflect 442 (EISs) apply to integrated SEPA/GMA documents. The SEPA's substantive policies and focus on any significant overriding consideration is the quality of information and irreversible or irretrievable commitments of natural resources analysis at the appropriate scope and level of detail for the that would be likely to harm long-term environmental particular GMA document, and not the format, length or productivity, taking into account cumulative impacts. A bulk of the document.. summary of the principal environmental impacts may be (2) "Document format." presented in chart or matrix form, summarizing the relevant (a) There is no standard format for an integrated GMA elements of the environment and impact assessment required document. An integrated GMA document may look more by WAC 197-11-440 (6)(b) through (e). The summary may like a GMA document with an environmental summary (see discuss nonenvironmental factors and should do so if WAC 197-11-235(5)), in contrast to a format described in relevant to resolving issues concerning the main environmen- tal choices facing decision makers. WAC 197-11-430. For example, for a comprehensive plan or subarea plan, the integrated document may look like a (c) The summary should be no longer than necessary plan with an environmental summary in front. Any separate- (generally fifteen to thirty pages for a plan/EIS, less for ly bound supporting documents shall be clearly identified in other integrated documents) and include tables or graphics to the integrated document. assist readability. At a minimum the fact sheet shall contain (b) An integrated GMA document is not required to the information required in WAC 197-11-440(2). The fact contain a separate section on affected environment, signifi- sheet shall precede the summary in the integrated GMA cant impacts, and mitigation measures under WAC 197-11- document. (6) "Alternatives analysis." 440(6), as long as this information is summarized as required in this section, and the basis for this information can be (a) This concise analysis focuses on a comparative readily found in the document and the supporting record. evaluation of the environmental consequences of the princi- (3) "Integrated non-EIS documents." pal alternative courses of action that are or have been under (a) If a proposed GMA action is not likely to have a consideration in the GMA planning process, as provided by significant adverse environmental impact, an integrated GMA WAC 197-11-440(5). The alternatives analysis shall document shall be prepared that combines the formal SEPA evaluate the proposed GMA action compared to the principal document (such as an environmental checklist/DNS, a notice alternative concepts and plan elements or regulatory options ~ of adoption or addendum) with the GMA document. The that were considered. These alternatives may be: (i) Those which are actively being considered; or provisions of WAC 197-11-235 (1) and (2) apply to these integrated documents. (ii) Those considered and screened earlier as part of a public GMA planning process. [ 59] Proposed WSR 94-19-083 Washington State Register, Issue 94-19 This analysis allows decision makers, other agencies and NEW SECTION the public to determine whether the proposed GMA action WAC 197-11-253 SEPA lead agency for MTCA can or should be revised before adoption to avoid or reduce actions. (1) Ecology will be lead agency for any remedial j environmental or other impacts. action conducted under the Model Toxics Control Act ~ (b) Descriptive material on the features of the alterna- (MTCA), including governmental proposals, unless: tives (in contrast to comparing their impacts) should be kept (a) The remedial action is not being conducted by to the minimum necessary to understand the comparative ecology or under a MTCA order, agreed order, or decree; or evaluation. If more description is necessary, it should be (b) The remedial action is occurring as a result of cited or located in the supporting record. Depending on the another development proposal. scope of the GMA action, the text.of the alternatives analysis Another agency may be lead agency if agreed to in should be less than forty pages. writing and all agencies with jurisdiction agree as provided (7) "Comments and responses." The inclusion of in WAC 197-11-942. Ecology may also agree to share lead comments and responses is not required for a draft integrated agency status with another agency (WAC 197-11-944). GMA document. For a final integrated document, comments (2) When ecology is lead agency, the procedures in (or a summary of comments) shall be compiled and response WAC 197-11-253 through 197-11-268 shall be used to prepared as provided in WAC 197-11-560(3). A jurisdiction combine the procedural requirements of SEP A and MTCA. may include comments (or a summary of comments) (3) When the remedial action is occurring as part of received during the scoping process or on preliminary another development proposal for which an agency other documents, as well as general or specific responses to these than ecology is lead agency, the lead agency shall, to the comments if any have been prepared, with the integrated extent practicable, combine the procedural requirements cif GMA document on a proposed GMA action. If this ap- MTCA and SEPA using the provisions in WAC 197-11-253 proach is not used, these preliminary comments shall be through 197-11-268. The lead agency shall contact ecology included in the supporting record. prior to making a SEPA threshold determination to invite (8) "Supporting record, analyses, and materials." ecology to share lead agency status (WAC 197-11-944). (a) The integrated GMA document shall contain a list of Where ecology and another agency agree to share lead the principal analytical documents and other materials (such agency responsibilities, ecology shall be responsible for that as meeting minutes, maps, models, tapes or videos) that have portion of the environmental analysis related to the remedial been prepared, received, or used in developing the GMA action. action. These materials shall be considered to be incorporat- ed by reference under SEPA and part of the supporting NEW SECTION record for SEP A compliance, and their contents need not be further described as required in WAC 197-11-635. Annotat- WAC 197-11-256 Preliminary threshold determina- ed lists are encouraged, but not required, to assist current tion. Prior to conducting a state remedial investiga- and future reviewers. tion/feasibility study under MTCA (WAC 173-340-350), (b) Materials in the supporting record should enable ecology will consider the potential environmental impacts of agencies and members of the public to identify and review the proposal and take one of the following steps. the planning basis for the conclusions and analysis presented (1) Decide the project is unlikely to have a probable in the integrated GMA document as provided in the "proce- significant adverse environmental impact and proceed dural criteria" for preparing plan documents. according to WAC 197-11-259. (2) Decide the remedial action will have a probable NEW SECTION significant adverse environmental impact and issue a determination of significance following the procedures in WAC 197-11-250 SEPA/Model Toxics Control Act WAC 197-11-262. integration. Procedures to integrate the procedural require- (3) Decide that all or part of the cleanup action or its ments and documents of this chapter with those required impacts are not sufficiently definite to make a threshold under the Model Toxics Control Act (MTCA), chapter determination and proceed according to WAC 197-11-265. 70.105D RCW, are set forth in WAC 197-11-253 through 197-11-268. NEW SECTION (1) Both MTCA and SEPA provide opportunities for early public review of a proposal. The following sections WAC 197-11-259 Determination of nonsignificance. contain procedures to combine the MTCA and SEPA (1) If after initial review of the proposal, it appears unlikely processes to reduce duplication 'and improve public participa- that significaQt adverse environmental impacts will occur, a tion. These sections supersede the remaining provisions of DNS should be delayed until a MTCA document is circulat- this chapter, to the extent there is a conflict between the two. ed for public review. This will allow the combining of (2) These sections apply to remedial actions conducted public comment periods and additional time to evaluate new by ecology, or by a potentially liable person under an order, information. agreed order, or consent decree under MTCA. These (2) The DNS shall be issued no later than the draft sections do not apply to independent remedial actions; rather, cleanup action plan. the remainder of this chapter applies to independent remedial (3) If the DNS is issued with a MTCA document which actions that are subject to SEP A. has a public comment period, the public comment period on the DNS shall be the same as the comment period on the MTCA document, provided the comment period is no less Proposed [ 60] Washington State Register, Issue 94-19 WSR 94-19-083 than fifteen days. One public notice shall be used to mental impact, ecology shall issue a determination of announce the availability of both the DNS and MTCA significance and begin preparation of the EIS. ~ document, using the requirements of WAC 173-340-600. (b) If ecology determines there will be no probable significant adverse environmental impacts, a determination NEW SECTION of nonsignificance shall be issued as described in WAC 197- 11-259. WAC 197-11-262 Determination of significance and EIS. (1) If the remedial action will have a probable signifi- (c) If ecology determines there is still insufficient cant adverse environmental impact, the SEPA scoping information to evaluate the environmental impacts of the process will typically be combined with either the MTCA project, ecology will proceed with the state remedial investi- public scoping process for the state remedial investigation/ gation and feasibility study. Prior to issuing the remedial feasibility study, or with the order, consent decree or agreed investigation and feasibility study for public comment, order covering a state remedial investigation/feasibility study ecology will evaluate the available information and follow (WAC 173-340-600 (12)(a)). One public notice shall be the provisions of WAC 197-11-259 or 197-11-262 (2) used for both SEPA arid MTCA, using the requirements in through ( 4) as appropriate. WAC 173-340-600. (2) In most instances, the draft EIS and state remedial NEW SECTION investigation/feasibility study will be integrated into a single WAC 197-11-268 MTCA interim actions. When an document. The format of the document shall be flexible as interim action (WAC 173-340-430) is conducted as part of allowed by WAC 197-11-640, provided: a remedial action the following shall apply. (a) The fact sheet shall be the first section (WAC 197- (1) If a DNS is issued it shall be done as provided for 11-430(1)); in WAC 197-11-259. (b) A summary shall be included which meets the (2) If there are likely to be significant adverse environ- requirements in WAC 197-11-440(4); and mental impacts and scoping has been done, ecology shall (c) Reasonable alternatives (including the no action prepare an EIS or supplemental EIS as provided in WAC alternative), significant impacts, mitigation measures and any 197-11-262. unavoidable impacts are clearly identified. (3) If the interim action is likely to have significant (3) In some cases, the final EIS will be issued with the adverse environmental impacts and scoping has not been MTCA draft cleanup action plan. During the public done, issue a DS and scoping notice, allowing at least a comment period on the draft cleanup action plan, ecology twenty-one day comment period (WAC 197-11-408). The will also accept comments on the final EIS. Ecology will draft EIS and interim report may be issued together and the ~ review and consider all comments received prior to issuing comment periods combined. the final cleanup action plan. (4) In some cases, the MTCA draft cleanup action plan AMENDATORY SECTION (Amending Order DE 83-39, may be issued with the draft EIS and state remedial investi- filed 2/10/84, effective 4/4/84) gation and feasibility study. In this case, the final EIS and MTCA final cleanup action plan may be issued together, WAC 197-11-305 Categorical exemptions. (1) If a notwithstanding the requirements of WAC 197-11-460(5). proposal fits within any of the provisions in Part Nine of these rules, the proposal shall be categorically exempt from NEW SECTION threshold determination requirements (WAC 197-11-720) except as follows: WAC 197-11-265 Early scoping. (1) The purpose of (a) The proposal is not exempt under WAC 197-11-908, early scoping is to identify environmental issues and alterna- ((eHviroHffleHtally seAsitive)) critical areas. tives early in the review process, and provide early and (b) The proposal is a segment of a proposal that integrated public involvement. If a determination of signifi- includes: cance is issued later in the process, no additional SEPA (i) A series of actions, physically or functionally related scoping will be required. to each other, some of which are categorically exempt and (2) If, after the initial review provided in WAC 197-11- some of which are not; or 256, ecology decides there is insufficient information to (ii) A series of exempt actions that are physically or determine the significance of a proposed remedial action. functionally related to each other, and that together may have ecology shall invite the public to comment on the proposed a probable significant adverse environmental impact in the study areas. This early scoping will typically be combined judgment of an agency with jurisdiction. If so, that agency either with the MTCA public review process for the scope shall be the lead agency, unless the agencies with jurisdiction of work for the state remedial investigation and feasibility agree that another agency should be the lead agency. study (WAC 173-340-350(5)), or for the order, consent Agencies may petition the department of ecology to resolve decree or agreed order covering the state remedial investiga- disputes (WAC 197-11-946). tion and feasibility study. For such proposals, the agency or applicant may proceed (3) Ecology will evaluate the comments received during with the exempt aspects of the proposals, prior to conducting the early scoping process and take one of the following environmental review, if the requirements of WAC 197-11- ~ actions: 070 are met. , (a) If ecology determines, based on comments received, (2) An agency is not required to document that a the project will have a probable significant adverse environ- proposal is categorically exempt. Agencies may note on an [ 61 l Proposed WSR 94-19-083 Washington State Register, Issue 94-19 ( application that a proposal is categorically exempt or place (b) Subsection (3)(a)(ii) shall not apply when a nonex- such a determination in agency files. empt license has been issued on a private project. (c) If the lead agency withdraws a DNS, the agency AMENDATORY SECTION (Amending Order DE 83-39, shall make a new threshold determination and notify other 4 filed 2/10/84, effective 4/4/84) agencies with jurisdiction of the withdrawal and new threshold determination. If a OS is issued, each agency with WAC 197-11-340 Determination of nonsignificance jurisdiction shall commence action to suspend, modify, or (DNS). (1) If the responsible official determines there will revoke any approvals until the necessary environmental be no probable significant adverse environmental impacts review has occurred (see also WAC 197-11-070). from a proposal, the lead agency shall prepare and issue a determination of nonsignificance (DNS) substantially in the AMENDATORY SECTION (Amending Order DE 83-39, form provided in WAC 197-11-970. If an agency adopts filed 2/10/84, effective 4/4/84) another environmen.tal document in support of a threshold determination (Part Six), the notice of adoption (WAC 197- WAC 197-11-680 Appeals. (1) Introduction. 11-965) and the DNS shall be combined or attached to each Appeals provisions in SEPA are found in RCW 43.21C.060, other. 43.21C.075 and 43.21C.080. These rules attempt to construe (2) When a DNS is issued for any of the proposals and interpret the statutory provisions. In the event a court listed in (2)(a), the requirements in this subsection shall be determines that these rules are inconsistent with statutory met. provisions, or with the framework and policy of SEPA, the (a) An agency shall not act upon a proposal for fifteen statute will control. Persons considering either administra- days after the date of issuance of a DNS if the proposal tive or judicial appeal of any decision which involves SEPA involves: at all are advised to read the statutory sections cited above. (i) Another agency with jurisdiction; (2) Appeal to local legislative body. RCW 43.21C.060 (ii) Demolition of any structure or facility not exempted allows an appeal to a local legislative body of any decision by WAC 197-11-800 (2)(t) or 197-11-880; by a local nonelected official conditioning or denying a (iii) Issuance of clearing or grading permits not exempt- proposal under authority of SEPA. Agencies may establish ed in Part Nine of these rules; ((et')) procedures for such an appeal, or may eliminate such (iv) A DNS under WAC 197-11-350 (2), (3) or 197-11- appeals altogether, by rule, ordinance or resolution. 360(4); or (3) Agency administrative appeal procedures. (v) A GMA action. (a) Agencies may provide for an administrative appeal (b) The responsible official shall send the DNS and of determinations relating to SEP A in their agency SEPA environmental checklist to agencies with jurisdiction, the procedures. If so, the procedures must comply with the ~ department of ecology, and affected tribes, and each local following: agency or political subdivision whose public services would (i) The agency must specify by rule, ordinance, or be changed as a result of implementation of the proposal, resolution that the appeals procedure is available. and shall give notice under WAC 197-11-510. (ii) Appeal of the intermediate steps under SEPA (e.g., (c) Any person, affected tribe, or agency may submit lead agency determination, scoping, draft EIS adequacy) comments to the lead agency within fifteen days of the date shall not be allowed. of issuance of the DNS. (iii) Appeals on SEP A procedures shall be limited to (d) The date of issue for the DNS is the date the DNS review of a final threshold determination and final EIS. The is sent to the department of ecology and agencies with appeal of a final threshold determination may occur prior to jurisdiction and is made publicly available. an agency's final decision on a proposed action. (e) An agency with jurisdiction may assume lead agency (iv) An agency shall provide for only one administrative status only within this fifteen-day period (WAC 197-11-948). appeal of a threshold determination or of the adequacy of an (t) The responsible official shall reconsider the DNS EIS; successive administrative appeals on these issues within based on timely comments and may retain or modify the the same agency are not allowed. This limitation does not DNS or, if the responsible official determines that significant apply to appeals to a local legislative body under RCW adverse impacts are likely, withdraw the DNS or supporting 43.21C.060 (or another state statute) or to administrative documents. When a DNS is modified, the lead agency shall appeals before another agency. send the modified DNS to agencies with jurisdiction. (v) If the agency has made a decision on a proposed (3)(a) The lead agency shall withdraw a DNS if: action, the appeal shall consolidate any allowed appeals of (i) There are substantial changes to a proposal so that procedural and substantive determinations under SEPA. For the proposal is likely to have significant adverse environ- example, an appeal of the adequacy of an EIS must be mental impacts; consolidated with an appeal of the agency's decision on the (ii) There is significant new information indicating, or proposed action, if both appeals are allowed in agency on, a proposal's probable significant adverse environmental procedures. impacts; or (vi) Agencies shall provide that procedural determina- (iii) The DNS was procured by misrepresentation or tions made by the responsible official shall be entitled to lack of material disclosure; if such DNS resulted from the substantial weight. actions of an applicant, any subsequent environmental (b) Agencies providing for administrative appeals shall ~ checklist on the proposal shall be prepared directly by the provide for a record as required by RCW 43.21C.075 (3)(c). lead agency or its consultant at the expense of the applicant. Proposed [ 62] Washington State Register, Issue 94-19 WSR 94-19-083 (c) If an agency provides an administrative appeal (h) For the purposes of this subsection, "a time limit procedure, that procedure must be used before anyone may established by statute or ordinance" does not include time ~ initiate judicial review of any SEPA issue that could have limits established by the general statutes of limitation in , been reviewed under the agency procedures. chapter 4.16 RCW. (4) Judicial appeals. ( ( (i) This s1:1eseetieft aees l'let 8flflly te petitieRS for (a) SEPA authorizes judicial appeals of both procedural j1:1clieial revie·.v ef ageHey cleeisieHs iH eeHtestecl eases, er te and substantive compliance with SEPA. petitieHs fer a 0eelftfft\0f)' j1 tclgme1tt eft the valiaity ef a R tle, (b) When SEPA applies to a decision, any judicial eetk ef wJ iieJ i Elf'e ge•1emea exel1 1sively ey the AclmiHistra appeal of that decision potentially involves both those issues tive Preee01 1re Aet, eJ ia13ter 34.04 RC\V.)) pertaining to SEPA (SEPA issues) and those which do not (5) Official notice of the date and place for com- (non-SEPA issues). RCW 43.2JC.075 establishes time limits mencing an appeal. for raising SEP A issues, but says that existing statutes of (a) Official notice of the date and place for commencing limitations control the appeal of non-SEPA issues. The an appeal must be given if there is a time limit established statute contemplates a single lawsuit, but allows for the by statute or ordinance for commencing an appeal of the SEP A and non-SEP A portions of that lawsuit to be filed at underlying governmental action. The notice shall include: different times. (i) The time limit for commencing appeal of the (c) If there is a time limit established by statute or underlying governmental action and the statute or ordinance ordinance for appealing the underlying governmental action, establishing the time limit; and then appeals (or portions thereof) raising SEPA issues must (ii) The time for appealing SEPA issues (thirty days be filed within thirty days after the agency gives official after notice); and notice (see subsection (5) of this section for content of (iii) A statement that a notice of intent is required, if a ·official notice). notice is required under subsection (4)(d) of this section, and (d) In any instance where subsection (c) of this subsec- instructions on where to send the notice and by what date; tion allows the SEPA portion of an appeal to be filed after and the time limit established by statute or ordinance for appeal- (iv) Where an appeal may be filed. ing the underlying governmental action, some judicial action (b) Notice is given by: must be filed within the time set by statute or ordinance. (i) Delivery of written notice to the applicant, all parties That action may be later amended to raise SEPA issues to any administrative appeal, and all persons who have within thirty days after the agency gives official notice (see requested notice of decisions with respect to the particular subsection (5) of this section). In addition, where SEPA proposal in question; and ~ issues were first raised during an administrative appeal, any (ii) Following the agency's normal methods of notice ' person desiring to raise SEP A issues by judicial appeal must for the type of governmental action taken. submit a notice of intent to do so with the responsible (c) Written notice containing the information required official of the acting agency within the time limit set by by subsection (5)(a) of this section may be appended to the statute or ordinance for appealing the underlying governmen- permit, decision documents, or SEPA compliance documents tal action. or may be printed separately. (e) The notice of action procedures of RCW 43.21C.080 ( d) Official notices required by this subparagraph shall may still be used. If this procedure is used, then the time not be given prior to final agency action. limits for judicial appeal specified in RCW 43.21C.080 shall apply, unless there is a time limit established by statute or AMENDATORY SECTION (Amending Order DE 83-39, ordinance for appealing the underlying governmental action. filed 2/10/84, effective 4/4/84) If so, the time limit for appeal of SEPA issues shall be within thirty days after the agency gives official notice (see WAC 197-11-890 Petitioning DOE to change subsection (5) of this section). If the proposal requires more exemptions. (I) Except for the preceding section, agencies than one governmental decision that will be supported by the may create additional exemptions in their procedures only same SEPA documents, then RCW 43.21C.080 still only after receiving approval from the department of ecology allows one judicial appeal of procedural compliance with under this section. SEPA, which must be commenced within (2) An agency may petition the department to adopt the applicable time to appeal the first governmental decision. additional exemptions or to delete existing exemptions by (t) If the time limit established by statute or ordinance amending these rules. The petition shall be made under for appealing the underlying governmental action is less than RCW ((34.04.060)) 34.05.330. The petition shall state the fifteen days, then the notice of action in RCW 43.21C.080(1) language of the requested amendment, the petitioning may be given by publishing once within that shorter time agency's views on the environmental impacts of the activi- period, in a newspaper of general circulation in the area ties covered by the proposed amendment, and the approxi- where the property that is the subject of the action is located, mate number of actions of this type which have come before and meeting the other requirements of RCW 43.21C.080. the petitioning agency over a particular period of time. The (g) If there is no time limit established by statute or department shall consider and decide upon a petition within ordinance for appeal, and the notice of action provisions are thirty days of receipt. If the determination is favorable, the ~ not used, then SEPA department shall begin rule making provides no time limit for judicial under chapter((~)) 34.05 RCW. ' appeals. Appeal times may still be limited, however, by Any resulting amendments will apply either general statutes of limitation or the common law. generally or to specified classes of agencies. Affected agencies shall amend their procedures accordingly. [ 63] Proposed WSR 94-19-083 Washington State Register, Issue 94-19 (3) An agency may also petition the department for an (5) The adoption of agency procedures is procedural and immediate ruling upon any request to add, delete, or change shall be categorically exempt under this chapter (WAC 197- an exemption. If such a petition is granted, the department 11-800(20)). will notify the petitioning agency, which may immediately include the change approved by the department in its own AMENDATORY SECTION (Amending Order DE 83-39, procedures. The department may thereafter begin rule filed 2/10/84, effective 4/4/84) making proceedings to amend these rules. Until these rules WAC 197-11-908 ((EnviFe111nentally sensitive)) are amended, any change granted under this subsection shall Critical areas. (1) ( (Eaeh eo1:1ftty/eity may at its op ti oft apply only to the petitioning agency or agencies. desigftate areas withiH its j1:1Fisdietioft that ftfe eH¥ifOftffleHtal (4) The department will provide public notice of any ly seftsiti,·e afeas, aitd shall adopt s1:1eh desigHatioft iH its proposed amendments to these rules in the manner required ageftey SEPA pfoeed1:1res (WAC 197 11 906). Eft¥if0ftffieft by the Administrative Procedure Act, chapter((~)) 34.05 tally SeHsiti·;e BFeaS shall Be tflOSe withiH whieh the eXefftf! RCW. A copy of all approvals by the department under the tiofts listed iH the Hext s1 1eseetioft eo1 1ld ha·re a sigftifieaftt preceding subsection shall be given to any person requesting ftdVefSe eftVifOftffleHtft) ifflfjaet, iHeh:tdiftg Btlt HOt Jiffiitea to the department for advance notice of rule making. areas with 1 1HstaBle sails, steep slopes, t1ft1 1s1 1al Of ttHitttte fllaftts Of ftftiffials, 'Netlaftds, or areas whieh lie withift AMENDATORY SECTION (Amending Order DE 83-39, floodplaiHs. The loeatioH aHd eilteHt of all eft¥ifOHffieHtally filed 2/10/84, effective 4/4/84) SeHSitive ftfeas shall Be e)eftfl)' iHdieated Oft ft ffi8fl that shall WAC 197-11-904 Agency SEPA procedures. (1) ee adofjted by fefereftee as part of the SEPA flfOeedttfes of Each agency is required by the act and this section to adopt the eOl:lfttyleity; a eOfl~; shall Be Seftt to the departffieftt of its own rules and procedures for implementing SEPA. eeology. (RCW 43.21C.120.) Agencies may revise or add to their ~)) Each county/city ((that desigHates aHd maps aft SEPA procedures at any time. Agencies may adopt these eHviroHmeHtally seHsiti·re ftfea)) may select certain categori- rules (chapter 197-11 WAC) by reference, and shall meet the cal exemptions that do not apply ((withift the ftfea)) in one requirements of WAC 197-11-906 concerning the content of or more critical areas designated in a critical areas ordinance their procedures. State and local rules for carrying out adopted under GMA. The selection of exemptions that will SEPA procedures are called "agency SEPA procedures." not apply may be made from the following subsections of (2) State agencies shall adopt or amend their procedures WAC 197-11-800: (1), (2)(a) through (h), (3), (5), (6)(a), within one hundred eighty days of the effective date of this (14)(c), (24)(a) through (g), and (25)(d), (f), (h), (i). chapter or subsequent revisions, or within one hundred The scope of environmental review of actions within eighty days of the establishment of an agency, whichever these areas shall be limited to: • shall occur later. State agencies shall adopt their procedures (a) Documenting whether the proposal is consistent with ~ by rule making under the state Administrative Procedure the requirements of the critical areas ordinance; and Act, chapter ((-34.Q4)) 34.05 RCW. If a state agency does (b) Evaluating potentially significant impacts on the not have rule making authority under chapter((~)) 34.05 critical area resources not addressed by GMA planning RCW, the agency shall adopt procedures under whatever documents and development regulations, if any, including authority it has, and public notice and opportunity for public any additional mitigation measures needed to protect the comment shall be provided. Adoption shall be deemed to critical areas in order to achieve consistency with GMA have taken place at the time the transmittal of adopted rules plans and regulations (including the critical areas ordinanc- is filed with the code reviser. ((UHi¥efsities, eolleges, aHd es), SEPA and other applicable environmental review laws. eoffim1 1Hity eolleges shall 1 1se the pfoeed1 1fes of ehaptef All other categorical exemptions apply whether or not 28B.19 RC\l/ iH adoptiHg pfoeed1:1fes.)) the proposal will be located within ((aft eft¥iroftmeHtally (3) Local agencies shall adopt or amend their procedures seRsiti¥e)) a critical area. Exemptions selected by an agency within one hundred eighty days of the effective date of this ((that do ftot apply withiH the ¥ariotts eftYifOHffiefttally chapter or subsequent revisions, or within one hundred seftsitive ftfeas)) under this section shall be listed ((wi#tttt)) eighty days of the establishment of the local governmental in the agency's SEPA procedures ((of afty eottRty/eity entity, whichever shall occur later. Local agencies shall adOfjtiHg stteh ftfeas; a eOfl)' shall ee seftt to the defjftrtffieHt adopt their procedures by rule, ordinance, or resolution, of eeology)) (WAC 197-11-906). whichever is appropriate, to ensure that the procedures have ((f3t)) ill Proposals that will be located within ((etWi- the full force and effect of law. Public notice and opportuni- fORfflefttally seHsitive)) critical areas are to be treated no ty for public comment shall be provided as part of the differently than other proposals under this chapter, except as agency's process for adopting its SEPA procedures. stated in the prior subsection. A threshold determination (4) Any agency determining that all actions it is shall be made for all such actions, and an EIS shall not be authorized to take are exempt under Part Nine of these rules automatically required for a proposal merely because it is may adopt a statement to the effect that it has reviewed its proposed for location in ((aft eH¥iroHmeHtally seHsiti¥e)) .!!. authorized activities and found them all to be exempt under critical area. this chapter. Adoption of such a statement under the (((4) CeftaiH eategofieal exemptioHs Elo Hot apply OR procedures in subsections (2) and (3) shall be deemed to be laHEls eovered ey watef, aftd this remaiHs tRJe fegaFdless of in compliance with the requirement that the agency adopt whether Of HOt )aHdS eo,•ered ey watef ftFe ffiftflfjed.)) procedures under this chapter. Proposed [ 64] Washington State Register, Issue 94-19 WSR 94-19-083 AMENDATORY SECTION (Amending Order DE 83-39, (ii) Determine that a license is not required_ from the filed 2110/84, effective 4/4/84) city/county, and notify natural resources that the city/county is not lead agency; or WAC 197-11-938 Lead agencies for specific propos- (iii) Determine there is insufficient information_ in the als. Notwithstanding the lead agency designation criteria environmental checklist to identify the need for a license, contained in WAC 197-11-926 through 197-11-936, the lead and either: agency for proposals within the areas listed below shall be (A) Assume lead agency status and conduct appropriate as follows: environmental analysis for the total proposal; or (1) For all governmental actions relating to energy (B) Notify natural resources of the specific additional facilities for which certification is required under chapter information needed to determine permit requirements, who 80.50 RCW, the lead agency shall be the energy facility site shall request the information from the applicant. evaluation council (EFSEC); however, for any public project (5) For all private projects requiring a license or lease requiring such certification and for which the study under to use or affect state lands, the lead agency shall be the state RCW 80.50.175 will not be made, the lead agency shall be agency managing the lands in question; however, this the agency initiating the project. subsection shall not apply to the sale or lease of state-owned (2) For all private projects relating to the use of geother- tidelands, harbor areas or beds of navigable waters, when mal resources under chapter 79.76 RCW, the lead agency such sale or lease is incidental to a larger project for which shall be the department of natural resources. one or more licenses from other state or local agencies is · (3) For all private projects requiring a license or other required. approval from the oil and gas conservation committee under (6) For all proposals which are being processed under chapter 78.52 RCW, the lead agency shall be the department the Environmental Coordination Procedures Act of 1973 of natural resources; however, for projects under RCW (ECPA), chapter 90.62 RCW, the lead agency shall be 78.52.125, the EIS shall be prepared in accordance with that determined under the standards of these rules. section. (7) For a pulp or paper mill or oil refinery not under the (4) For ((ftH.)) private activity requiring a ((lieetts~ er jurisdiction of EFSEC, the lead agency shall be the depart- aflfl£0Yal)) Class IV forest practice under the Forest Practices ment of ecology, when a National Pollutant Discharge Act of 1974, chapter 76.09 RCW, the lead agency shall be Elimination System (NPDES) permit is required under either the department of naturaf resources((; hev1e'ter, for section 402 of the Federal Water Pollution Control Act (33 ~F0fl0Sal that will reqt1ife a lieettse frefft a eet1ttty/eity aetittg ttttEler the fl0WeFS ettttmeFBteEI in RC'N 76.09.240, the u.s.c. 1342). (8) For proposals to construct a pipeline greater than six leaEI agettey shall ee the eot1tttyf.eity reqt1ifittg the lieeRse)) inches in diameter and fifty miles in length, used for the or the city/county where the project is locate~. transportation of crude petroleum or petrol~um fuels or o_il (a) The interagency agreements authonzed by WAC or derivatives thereof, or for the transportation of synthetic 222-50-030 between the department of natural resources and or natural gas under pressure not under the jurisdiction of other governmental agencies may be used to identify SE~A EFSEC, the lead agency shall be the department of ecology. lead agency status for Class IV general forest pract_1ce (9) For proposals that will result in an impoundment of applications. If used, this agreement shall meet the require- water with a water surface in excess of forty acres, the lead ments for a lead agency agreement in WAC 197-11-942. agency shall be the department of ecology. . (b) If no interagency agreement exi~ts, the S_EP~ lead ( 1 O) For proposals to construct facilities on a si~g~e site agency determination shall be based on mformalion m the designed for, or capable of, storing a total of ?n~ ~1ll~on or environmental checklist required as part of the Class IV more gallons of any liquid fuel not under the JUnsd1ct1on of forest practice application (WAC .222-20-~10(7_)). The EFSEC, the lead agency shall be the department of ecology. applicant shall, as part of the ch~ckhst, submit _all 1~forma­ (11) For proposals to construct any new oil refinery, or tion on future plans for convers10n, and shall identify any an expansion of an existing refinery that shall increase known future permits requirements. . capacity by ten thousand barrels per day or more not under (c) Upon receipt of a Class IV, g~neral, forest practice the jurisdiction of EFSEC, the lead agency shall be the application and environmental checklist, natura~ resou~ces department of ecology. . shall determine lead agency for the proposal. If msuffic1ent (12) For ((flfOfJOsals to eonstftlet atty tte'+'i metalhe information is available to identify necessary permits, natural fftineral fl£oeessing fllattt, or to eKflattEi aft)' stteh eKistittg resources shall ask the applicant for additional information. fJlattt ey teft flereeftt er ffiOFe of Eiesigtt €8fJaeity)) proposed If a permit is not required from the ~ity/county, nat~r~I metal mining and milling operations regul~ted by ch~pter resources shall be lead agency. If a city/county permit 1s 78.56 RCW, except for uranium and thonum operat10ns required, natural resources shall_ send c~pie~ of the envir~n­ regulated under Title 70 RCW, the lead agency shall be the mental checklist and forest practice apphcatton together with department of ecology. the determination of the lead agency to the city/county. (13) For proposals to construct, operate, or expand any (d) Upon receipt ~nd rev~ew_ of the e_nvironmental uranium or thorium mill, any tailings areas generated by checklist and forest practice apphcatJon, the city/county shall uranium or thorium milling or any low-level radioactive within five business days: waste burial facilities, the lead agency shall be the depart- (i) Agree that a city/county license ~s requi_red, either ment of social and health services. now or at a future point, and proceed with envJTonmental review as lead agency. [ 65] Proposed WSR 94-19-083 Washington State Register, Issue 94-19 REPEALER Spokane County Public Health Center, West 1101 College Avenue, Spokane, WA 98205, on October 26, 1994, at 7:00 The following section of the Washington Administrative - 9:00. Code is repealed: Assistance for Persons with Disabilities: Contact Joan ~ WAC 197-11-748 Environmentally sensitive area. Morris, (206) 407-7212 by October 14, 1994, TDD (206) 407-6006. Submit Written Comments to: Emily Ray, FAX (206) 407-7154, by November 7, 1994. WSR 94-19-084 Date of Intended Adoption: December 27, 1994. PROPOSED RULES September 19, 1994 DEPARTMENT OF ECOLOGY Mary Riveland [Order 92-59-Filed September 21, 1994, 8:10 a.m.] Director Original Notice. Title of Rule: Chapter 173-360 WAC. AMENDATORY SECTION (Amending WSR 90-24-017, Purpose: To respond to an opportunity to privatize the filed 11/28/90, effective 12/29/90) underground storage tank contractor certification program. WAC 173-360-100 Purpose and authority. (1) The The department intends to accomplish this by relying on a purpose of this chapter is to address the serious threat posed professional certification program. to human health and the environment by leaking under- Statutory Authority for Adoption: Chapter 90.76 RCW. Statute Being Implemented: Chapter 90.76 RCW. ground storage systems containing petroleum and other Summary: The proposed amendment would eliminate regulated substances. (2) The department of ecology is directed by chapter the requirement that contractors who do underground storage 90. 76 RCW to establish an underground storage tank tank work be licensed by ecology. The amendment would program designed, operated and enforced in a manner that, substitute a requirement that such contractors be certified by at a minimum, meets the requirements for delegation of the the International Fire Code Institute, or other nationally Federal Underground Storage Tank Program of the Resource recognized organization. Under the proposed amendment, Conservation and Recovery Act of 1976, as amended ( 42 the cost to obtain certification would be $35.00. U.S.C. Section 6901, et seq.). The legislative intent is that Reasons Supporting Proposal: Contractors would be state-wide requirements for underground storage tanks certified through a national certification program, recognized adopted by the department be consistent with and no less by a growing number of states. The department would stringent than the objectives outlined in the federal regula- reduce direct costs and staff necessary to operate a licensing tions. Because certain areas of the state possess physical program. • characteristics that make them especially vulnerable to Name of Agency Personnel Responsible for Drafting, ~ threats from leaking underground storage tanks, local Implementation and Enforcement: Emily Ray, Olympia, requirements more stringent than the state-wide requirements 407-7174. may apply in these environmentally sensitive areas. Name of Proponent: Washington State Department of Ecology, governmental. (Note: All codes, standards, rules, or regulations cited in this chapter Rule is not necessitated by federal law, federal or state are available for inspection at the Department of Ecology, ((Mailstep PV II)) P.O. Box 47655, Olympia, WA 98504- court decision. ((,l!+H)) 7655.) Explanation of Rule, its Purpose, and Anticipated Effects: To reduce costs and streamline the process for AMENDATORY SECTION (Amending Order 91-26, filed licensing underground storage tank contractors. Certifica- 10129191, effective 11/29/91) tions obtained by contractors would be valid in a growing number of states. The cost to contractors would be $35 per WAC 173-360-110 Applicability, exemptions, and certification. deferrals. (1) The requirements of this chapter apply to all Proposal Changes the Following Existing Rules: The owners and operators of an underground storage tank (UST) change will be from a state operated licensing program, to system as defined in WAC 173-360-120 except as otherwise a national certification program, operated by a nationally provided in subsections (2) and (3) of this section. It is the recognized organization. Agency direct costs and staff responsibility of owners and operators to ensure that any required to operate the program will be decreased. Under UST ((systelfl sen·iee flF0 1t'iders ttftd)) supervisors they the existing rule contractors did not pay a fee for a license. employ are properly ((lieeftsed)) certified in accordance with Under the proposed amendment, the fee to obtain a certifica- WAC 173-360-600 through ((173 360 690)) 173-360-630. tion will be $35. (2) Exemptions. The following UST systems, including Has a Small Business Economic Impact Statement Been any piping connected thereto, are exempt from the require- Prepared Under Chapter 19.85 RCW? No. An economic ments of this chapter: impact analysis was done and it was determined that the (a) Any UST system holding hazardous wastes subject proposed rule will not have a significant effect on any single to Subtitle C of the Federal Solid Waste Disposal Act, or a 4-digit standard industrial classification. A small business mixture of such hazardous waste and other regulated economic impact statement is not required. substances. Hearing Location: Department of Ecology, Northwest (b) Any wastewater treatment tank system that is part of Regional Office, 3190 l 60th Avenue S.E., Bellevue, WA a wastewater treatment facility regulated under Section 402 98008-5452, on October 25, 1994, at 7 00 - 9 00; and at the or 307(b) of the Clean Water Act. Proposed [ 66 J Washington State Register, Issue 94-19 WSR 94-19-084 (c) Equipment or machinery that contains regulated "Abandoned" means left unused indefinitely, without substances for operational purposes such as hydraulic lift being substantially emptied or permanently altered structural- tanks and electrical equipment tanks. · ly to prevent reuse. (d) Any UST system whose capacity is one hundred ten "Aboveground release" means any release to the surface gallons or less. of the land or to surface water. This includes, but is not (e) Any UST system that ((eeRteiHs)) has never con- limited to, releases from the above-ground portion of an tained more than a de minimis concentration of regulated UST system and aboveground releases associated with substances as defined in WAC 173-360-120. overfills and transfer operations as the regulated substance (f) Any emergency spill or overflow containment UST moves to or from an UST system. system that is expeditiously emptied after use. "Accidental release" means any sudden or nonsudden (g) Farm or residential UST systems of one thousand release of petroleum from an underground storage tank that one hundred gallons or less capacity used for storing motor results in a need for corrective action and/or compensation fuel for noncommercial purposes (((i.e., Ret fer resale))) (see for bodily injury or property damage neither expected nor definition of "farm" and "residential"); intended by the tank owner or operator. (h) UST systems used for storing heating oil for "Ancillary equipment" means any devices including, but consumptive use on the premises where stored; except that not limited to, such devices as piping, fittings, flanges, such systems which store in excess of one thousand one valves, and pumps used to distribute, meter, or control the hundred gallons are subject to the release reporting require- flow of regulated substances to and from an UST. ments of WAC 173-360-372; "Belowground release" means any release to the (i) Septic tanks; subsurface of the land and to ground water. This includes, (j) Any pipeline facility (including gathering lines) but is not limited to, releases from the belowground portions regulated under: of an underground storage tank system and belowground (i) The Natural Gas Pipeline Safety Act of 1968 (49 releases associated with overfills and transfer operations as U.S.C. App. 1671, et seq.); or the regulated substance moves to or from an underground (ii) The Hazardous Liquid Pipeline Safety Act of 1979 storage tank. (49 U.S.C. App. 2001, et seq.); or "Beneath the surface of the ground" means beneath the (iii) Which is an intrastate pipeline facility regulated ground surface or otherwise covered with earthen materials. under state laws comparable to the provisions of the law "Bodily injury" shall have the meaning given to this referred to in (j) (i) or (ii) of this subsection; term by applicable state law; however, this term shall not (k) Surface impoundments, pits, ponds, or lagoons; include those liabilities which, consistent with standard (I) Storm water or wastewater collection systems; insurance industry practices, are excluded from coverage in (m) Flow-through process tanks; liability insurance policies for bodily injury. (n) Liquid traps or associated gathering lines directly "Cathodic protection" means a technique to prevent related to oil or gas production and gathering operations; or corrosion of a metal surface by making that surface the (o) Storage tanks situated in an underground area (such cathode of an electrochemical cell. For example, a tank as a basement, cellar, vault, mineworking drift, shaft, or system can be cathodically protected through the application tunnel) if the storage tank is situated upon or above the of either galvanic anodes or impressed current. surface of the floor. . (("Cethedie preteetieH tester" ff!eeRs e perseR whe eeR (3) Deferrals. The following UST systems are subject deffleHstrete eH ttHdeFStaHdiRg ef the priReiples eRd ffleesttre only to the requirements of WAC 173-360-130, 173-360- meRts ef ell eefflffl0R lyfles ef eetkedie flFeleetieH systelfts es 140, 173-360-160, 173-360-170, 173-360-190, 173-360-200, Bflfllied te ettried er st18H1erged lftetel flifliRg eRd tltflk 173-360-372 ((ttRtl)),, 173-360-385 and 173-360-390. Any S)'Stems BY flBSSiHg ftfl enamiHetieH BHd eeteiRiHg 8 JieeRSe new deferred UST systems shall also be subject to the fer SttflerYisieR ef eetkedie preteetiefl ifl.stelletieH et1d testiHg performance standards of WAC 173-360-300: iR eeff!JlliBHee with \l/AC 173 360 600 threttgh 173 360 690. (a) Wastewater treatment tank systems not regulated At e 1Hit1ifflt1ffl, sttek f3erseRs shell heYe edtteetieR eRd under section 307(b) or 402 of the Clean Water Act; eJtf3erieRee iR seil resisth·ity, stray ettrreRt, stftletttre te seil (b) Any UST systems containing radioactive material f3eteRtiel, aRd eetHpOHeflt eleetrieel iseletiefl ffleesttreffieflts that are regulated under the Atomic Energy Act of 1954 (42 ef Bttried tHetel flipiflg eAd teHk systetHs.)) U.S.C. 2011 et seq.); "CERCLA" means the Comprehensive Environmental (c) Any UST system that is part of an emergency Response, Compensation, and Liability Act of 1980, as generator system at nuclear power generation facilities amended. regulated by the Nuclear Regulatory Commission under IO "Certified UST supervisor" means a person certified by CFR Part 50 Appendix A; the International Fire Code Institute or another nationally (d) Airport hydrant fuel distribution systems; recognized organization, as approved by the department. (e) UST systems with field-constructed tanks. "Closure" means to take an underground storage tank out of operation, either temporarily or permanently, in AMENDATORY SECTION (Amending Order 91-26, filed accordance with WAC 173-360-380 or 173-360-385. The 10/29/91, effective 11/29/91) term is synonymous with "decommissioning." WAC 173-360-120 Definitions. For the purposes of "Compatible" means the ability of two or more sub- this chapter, the following definitions shall apply: stances or materials to maintain their respective physical and chemical properties upon contact with one another such that the stored substance will not pass through the wall or lining [ 67 ] Proposed WSR 94-19-084 Washington State Register, Issue 94-19 of the tank and connected piping for the design life of the "Existing UST system" means an UST system used to tank system under conditions likely to be encountered in the contain an accumulation of regulated substances or for which UST. installation had commenced on or before December 22, "Connected piping" means all underground piping 1988. Installation is considered to have commenced if: ~ including valves, elbows, joints, flanges, and flexible The owner or operator had obtained all federal, state, and connectors attached to a tank system through which regulat- local approvals or permits necessary to begin physical ed substances flow. For the purpose of determining how construction of the site or installation of the tank system; and much piping is connected to any individual UST system, the if piping that joins two UST systems should be allocated Either a continuous on-site physical construction or equally between them. installation program had begun; or "Consumptive use" with respect to heating oil means The owner or operator had entered into contractual consumed on the premises. obligations-which cannot be cancelled or modified without "Controlling interest" means direct ownership of at least substantial loss-for physical construction at the site or fifty percent of the voting stock of another entity. installation of the tank system to be completed within a "Corrosion expert" means a person who possesses a reasonable time. thorough knowledge of the physical sciences and the "False alarm" means indicating that an UST system is principles of engineering and mathematics acquired by a leaking when in fact it is tight. professional education and related practical experience, and "Farm tank" is a tank located on a tract of land devoted is qualified to engage in the practice of corrosion control on to the production of crops or raising animals, including fish, buried or submerged metal piping systems and metal tanks. and associated residences and improvements. A farm tank Such a person shall be accredited or certified as being must be located on the farm property and used for farm qualified by the National Association of Corrosion Engineers purposes. "Farm" includes fish hatcheries, rangeland, and or be a registered professional engineer who has certification nurseries with growing operations. It does not include or licensing that includes education and experience in laboratories where animals are raised, land used to grow corrosion control of buried or submerged metal piping timber, pesticide aviation operations, retail stores or garden systems and metal tanks. centers where nursery products are marketed but not grown, "Decommissioning" means to take an underground cemeteries, golf courses, or other facilities dedicated primari- storage tank out of operation, either temporarily or perma- 1 y to recreation or aesthetics, or other non-agricultural nently, in accordance with WAC 173-360-380 or 173-360- activities. 385. The term is synonymous with "closure." "Field-constructed tank" means an underground storage "Deferral" means a category of UST systems which are tank that is constructed in the field rather than factory built ~ subject to certain, but not all, of the requirements of this because of its large size. , chapter as specified in WAC 173-360-110(3). "Financial reporting year" means the latest consecutive "Delegated agency" means ((-Hte-)) a state or .local twelve-month period for which any of the following reports government agency which has been delegated responsibility used to support a financial test is prepared: A 10-K report by the department for administering any portion of an UST submitted to the SEC; an annual report of tangible net worth program ((Etf!flF0't'ed iR aeeerd!lflee with WAC 173 360 500)). submitted to Dun and Bradstreet; or annual reports submitted "De minimis concentration" means either less than one to the Energy Information Administration or the Rural inch of regulated substance, or less than a reportable · Electrification Administration. "Financial reporting year" quantity, as defined under the Comprehensive Environmental may thus comprise a fiscal or a calendar year period. Response, Compensation, and Liability Act (CERCLA). "Firm" means any business, including but not limited to "Department" means the department of ecology. corporations, limited partnerships, and sole proprietorships, "Dielectric material" means a material that does not engaged in performing tank services. conduct direct electrical current. Dielectric coatings are used "Flow-through process tank" is a tank that forms an to electrically isolate UST systems from the surrounding integral part of a production process through which there is soils. Dielectric bushings are used to electrically isolate a steady, variable, recurring, or intermittent flow of materials portions of the UST system (e.g., tank from piping). during the operation of the process. Flow-through process "Director" means the director of the department of tanks do not include tanks used for the storage of materials ecology. prior to their introduction into the production process or for "Electrical equipment" means underground equipment the storage of finished products or by-products from the that contains dielectric fluid that is necessary for the opera- production process. tion of equipment such as transformers and buried electrical "Free product" refers to a regulated substance that is cable. present as a nonaqueous phase liquid (e.g., liquid not "Emergency power generator" means an engine that uses dissolved in water). fuel to produce auxiliary electrical or mechanical energy for "Gathering lines" means any pipeline, equipment, use in emergencies. facility, or building used in the transportation of oil or gas "Emergency power generator tank" means a tank that during oil or gas production or gathering operations. stores fuel solely for use by an emergency power generator. "Ground water" means water in a saturated zone or "Excavation zone" means the volume containing the stratum beneath the surface of land or below a surface water ~ UST system and backfill material bounded by the ground body. , surface, walls, and floor of the pit and trenches into which "Hazardous substance UST system" means an under- the UST system is placed at the time of installation. ground storage tank system that contains a hazardous Proposed [ 68] Washington State Register, Issue 94-19 WSR 94-19-084 substance defined in section 101(14) of the Comprehensive "On the premises where stored" with respect to heating Environmental Response, Compensation, and Liability Act oil means UST systems located on the same property where of 1980 (but not including any substance regulated as a the stored heating oil is used. hazardous waste under Subtitle C) or any mixture of such "Operational life" refers to the period beginning when substances and petroleum, and which is not a petroleum UST installation of the tank system has commenced until the time system. the tank system is properly closed under WAC 173-360-380 "Heating oil" means petroleum that is No. 1, No. 2, No. through 173- 360-398. 4-light, No. 4-heavy, No. 5-light, No. 5-heavy, and "Operator" means any person in control of, or having No. 6 technical grades of fuel oil; other residual fuel oils responsibility for, the daily operation of the UST system. (including Navy Special Fuel Oil and Bunker C); and other "Overfill release" is a release that occurs when a tank is fuels when used as substitutes for one of these fuel oils. filled beyond its capacity, resulting in a discharge of the Heating oil is typically used in the operation of heating regulated substance to the environment. equipment, boilers, or furnaces. "Owner" means: In the case of an UST system in use "Hydraulic lift tank" means a tank holding hydraulic on November 8, 1984, or brought into use after that date, fluid for a closed-loop mechanical system that uses com- any person who owns an UST system used for storage, use, pressed air or hydraulic fluid to operate lifts, elevators, and or dispensing of regulated substances; and in the case of any other similar devices. UST system in use before November 8, 1984, but no longer "Immiscible" means largely incapable of blending or in use on that date, any person who owned such UST mixing. immediately before the discontinuation of its use. In the "Installation" means the activity of placing an under- event that the owner of an UST system cannot be physically ground storage tank system or any part thereof in the ground located, the owner shall be the person who owns the proper- and preparing it to be placed in service. ty where the UST system is located, except any lien holder "Legal defense cost" is any expense that an owner or and any agency of the state or unit of local government operator or provider of financial assurance incurs in defend- which acquired ownership or control involuntarily through ing against claims or actions brought: By the United States bankruptcy, tax delinquency, abandonment, or circumstances Environmental Protection Agency (EPA) or a state to require in which the government involuntarily acquires title. This corrective action or to recover the costs of corrective action; exclusion does not apply to an agency of the state or unit of by or on behalf of a third party for bodily injury or property local government which has caused or contributed to a damage caused by an accidental release; or by any person to release or threatened release of a regulated substance from enforce the terms of a financial assurance mechanism. the UST system. ("LieeHseEI" ffl eaHs a firffl er a fJerseH vthieh has beeH "Owner or operator," means, for the purposes of WAC iss1 1eEI a lieeHse by the ElefJartffl eHt 1 1HEler this ehfif)ter.)) 173-360-400 through 173-360-499, when the owner or "Liquid trap" means sumps, well cellars, and other traps operator are separate parties, the party that is responsible for used in association with oil and gas production, gathering, obtaining or has obtained financial assurances. and extraction operations (including gas production plants), "Party" means a person or group concerned or having or for the purpose of collecting oil, water, and other liquids. taking part in any affair, matter, transaction, or proceeding. These liquid traps may temporarily collect liquids for "Permanently closed" means: (1) In the case of an UST subsequent disposition or reinjection into a production or system taken out of operation before December 22, 1988, the pipeline stream, or may collect and separate liquids from a UST system was substantially emptied of regulated substanc- gas stream. es or permanently altered structurally to prevent reuse; (2) in "Maintenance" means the normal operational upkeep to the case of an UST system taken out of operation after prevent an underground storage tank system from releasing December 21, 1988, and before the effective date of this a regulated substance. chapter, the UST system was closed in accordance with 40 "Motor fuel" means petroleum or a petroleum-based CFR 280; and (3) in the case of an UST system taken out of substance that is motor gasoline, aviation gasoline, No. 1 or operation on or after the effective date of this chapter, the No. 2 diesel fuel, or any grade of gasohol, and is typically UST system was closed in accordance with WAC 173-360- used in the operation of a motor engine. 385. "New UST system" means a tank system that will be "Person" means an individual, trust, firm, joint stock used to contain an accumulation of regulated substances and company, federal agency, corporation, state, municipality, for which installation commenced after December 22, 1988. commission, political subdivision of a state, or any interstate (See also "existing tank system.") body. "Person" also includes a consortium, a joint venture, "Noncommercial purposes" with respect to motor fuel a commercial entity, and the United States government. means not for resale. "Petroleum marketing facilities" include all facilities at "Occurrence" means an accident, including continuous which petroleum is produced or refined and all facilities or repeated exposure to conditions, which results in a release from which petroleum is sold or transferred to other petro- from an underground storage tank. leum marketers or to the public. Note: This definition is intended to assist in the understanding of "Petroleum marketing firms" are all firms owning WAC 173-360-400 through 173-360-499 and is not intended petroleum marketing facilities. Firms owning other types of either to limit the meaning of "occurrence" in a way that facilities with USTs as well as petroleum marketing facilities conflicts with standard insurance usage or to prevent the use of are considered to be petroleum marketing firms. other standard insurance terms in place of "occurrence." "Petroleum UST system" means an underground storage tank system that contains petroleum or a mixture of petro- [ 69] Proposed WSR 94-19-084 Washington State Register, Issue 94-19 leum with de minimis quantities of other regulated substanc- "Retrofitting" means the repair or upgrading of an es. Such systems include those containing motor fuels, jet existing underground storage tank system including, but not fuels, distillate fuel oils, residual fuel oils, lubricants, limited to, installation of splash, spill and overfill protection, petroleum solvents, and used oils. installing or replacing monitoring systems, adding cathodic ~ "Pipe" or "piping" means a hollow cylinder or tubular protective systems, tank repair, replacement of piping, conduit that is constructed of nonearthei:i materials. valves, fill pipes or vents and installing tank liners. "Pipeline facilities (including gathering lines)" are new "Septic tank" is a water-tight covered receptacle de- and existing pipe rights-of-way and any associated equip- signed and used to receive or process, through liquid ment, facilities, or buildings. separation or biological digestion, the sewage discharged "Property damage" shall have the meaning given this from a building sewer. The effluent from such receptacle is term by applicable state law. This term shall not include distributed for disposal through the soil and settled solids those liabilities which, consistent with standard insurance and scum from the tank are pumped out periodically and industry practices, are excluded from coverage in liability hauled to a treatment facility. insurance policies for property damage. However, such "Site assessment" means investigating an UST site for exclusions for property damage shall not include corrective the presence of a release at the time of closure or change-in- action associated with releases from tanks which are covered service. by the policy. "Site check" means investigating an UST site for the "Provider of financial assurance" means an entity that presence of a release when evidence indicates that a release provides financial assurance to an owner or operator of an may have occurred. underground storage tank through one of the mechanisms "Stormwater or wastewater collection system" means listed in WAC 173-360-413 through 173-360-436, including piping, pumps, conduits, and any other equipment necessary a guarantor, insurer, risk retention group, surety, issuer of a to collect and transport the flow of surface water run-off letter of credit, issuer of a state-required mechanism, or a resulting from precipitation, or domestic, commercial, or state. industrial wastewater to and from retention areas or any "Regulated substance" means: areas where treatment is designated to occur. The collection Any substance defined in section 101(14) of the of storm water and wastewater does not include treatment Comprehensive Environmental Response, Compensation, and except where incidental to conveyance. Liability Act (CERCLA) of 1980 (but not including any "Structural defect" means a hole or crack in the tank substance regulated as a hazardous waste under Subtitle C of portion of the UST system, which has either caused a release the Federal Solid Waste Disposal Act, or a mixture of such from the system or is being repaired to prevent a release hazardous waste and any other regulated substances); and from the system. Petroleum, including crude oil or any fraction thereof "Substantial business relationship" means the extent of ~ that is liquid at standard conditions of temperature and a business relationship necessary under applicable state Jaw pressure (sixty degrees Fahrenheit and 14.7 pounds per to make a guarantee contract issued incident to that relation- square inch absolute). The term "regulated substance" ship valid and enforceable. A guarantee contract is issued includes but is not limited to petroleum and petroleum-based "incident to that relationship" if it arises from and depends substances comprised of a complex blend of hydrocarbons on existing economic transactions between the guarantor and derived from crude oil through processes of separation, the owner or operator. conversion, upgrading and finishing, such as motor fuels, jet "Supervisor" means a ((lieeHsetl)) person certified by the fuels, distillate fuel oils, residual fuel oils, lubricants, International Fire Code Institute, or· other nationally recog- petroleum solvents, and used oils. The term "regulated nized organization, operating independently or employed by substance" does not include propane or asphalt or any other a contractor, who is responsible for directing and overseeing petroleum product which is not liquid at standard conditions the performance of tank services at a facility. of temperature and pressure. "Surface impoundment" is a natural topographic depres- "Release" means any spilling, leaking, emitting, dis- sion, excavation, or diked area formed primarily of earthen charging, escaping, leaching, or disposing from an UST materials (although it may be lined with synthetic materials) system to ground water, surface water or soils. that is not an injection well. "Release detection" means determining whether a release "Tangible net worth" means the tangible assets that of a regulated substance has occurred from the UST system remain after deducting liabilities; such assets do not include into the environment or into the interstitial space between the intangibles such as goodwill and rights to patents or royal- UST system and its secondary barrier or secondary contain- ties. For purposes of this definition, "assets" means all ment around it. existing and all probable future economic benefits obtained "Repair" means to restore a tank or UST system or controlled by a particular entity as a result of past component that has caused a release of a regulated substance transactions. from the UST system. "Tank" is a stationary device designed to contain an "Residential tank" is a tank located on property used accumulation of regulated substances and constructed of primarily for dwelling purposes; such properties do not nonearthen materials (e.g., concrete, steel, plastic) that include dormitories, convents, mobile parks, apartments, provide structural support. hotels. and similar facilities, unless the tank is used by the "Tank permit" means a tank tag, as required by RCW owner solely for his or her own personal use, rather than to 90.76.020(4). ~ maintain the overall facility. 'Tank services" include underground storage tank installation, decommissioning, retrofitting, and testing. Proposed [ 701 Washington State Register, Issue 94-19 WSR 94-19-084 (("Tattk serviees flFOYider" is a persoH or fiRH lieeHsed as Sfleeified iH 'NAG 173 360 200(1), atta st:thmit it to the to flerferm tattk serviees OR regt1lated t1Rdergrot1Hd storage deflaFtFR:eRt at least thirty da)'S f!Fior to iRstallatioH of the tattks iR Washittgtott.)) system. AH ittitial f!eFFRit, valid for HiR:ety days, ·uill he "Termination" under WAC 173-360-476 and l 73-360- provided by the aepartffieHt so the UST S)'StefR eftfl he tested 480 means only those changes that could result in a gap in attd operatioH of the S)'Stem eaR: hegiH. If tteeessary, attd if coverage as where the insured has not obtained substitute eiret:tmstaRees •uaFfaRt, aH additiottal fleRHit Yalid for HiHety coverage or has obtained substitute coverage with a different days will he pro .. ·ides ay the separtffieHt. Uf!OH reeeipt of retroactive date than the retroactive date of the original the followiRg iteffis, a peRHit •,·alis t tHtil the followiRg Jt ttte policy. 30, if the UST systeffi reFRaiHs iR: eoffipliattee, Ylill be "Testing" means applying a method to determine the flFOYises by the aef!artFReR:t for the Hewly ittstalleEI UST integrity of an underground storage tank. systeFR: "Tightness testing" means a procedure for testing the (i) A f!FOperly eoffipleted)) .!!!!. UST notification form, as ability of a tank system to prevent an inadvertent release of specified in WAC 173-360-200(2)((-;-)) and submit it with any stored substance into the environment or, ((iR the ease payment of the applicable annual fee, as specified in WAC of aH t1Hdergrot1Hd storage taRk systeffi,)) intrusion of ground 173-360-190, to the delegated agency. If no delegated water into a tank system. agency exists, the application shall be submitted to the "Underground area" means an underground room, such department. as a basement, cellar, shaft or vault, providing enough space ( ((ii) A flFOtJerly eotfftJleteEI iH:stallatieR eheek\ist, as for physical inspection of the exterior of the tank situated on Sf!eeifiea iH WAC 173 360 200(3).)) or above the surface of the floor. (b) To apply for a permit for an existing UST system "Underground release" means any below ground release. not previously reported to the department, the owner or "Underground storage tank" or "UST" means any one or operator shall complete a Washington state underground combination of tanks (including underground pipes connect- storage tank notification form, as specified in WAC l 73- ed thereto) that is used to contain an accumulation of 360-200(2), and submit it to the ((aepartmettt)) delegated regulated substances, and the volume of which (including the agency with a payment of the applicable annual fee, as volume of underground pipes connected thereto) is ten specified in WAC l 73-360-190, including any fees which percent or more beneath the surface of the ground. This should have been paid for earlier fiscal years if the UST term does not include any of the exempt UST systems system had been properly registered, but which were not specified in WAC 173-360-110(2), or any piping connected paid. If no delegated agency exists, the application shall be thereto. made to the department. "Upgrade" means the addition or retrofit of some (c) To apply for a permit for a tank which has been systems such as cathodic protection, lining, or spill and temporarily out of service, the owner or operator shall notify overfill controls to improve the ability of an underground the department of the change in status and follow the storage tank system to prevent the release of regulated provisions of WAC 173-360-380. substances. (d) Each year the department will request owners and "UST site" or "site" means the location at which operators of reported UST systems to certify compliance underground storage tanks are in place or will be placed. with the requirements of this chapter. UST systems which An UST site encompasses all of the property within a are in the department's notification data base when the contiguous ownership that is associated with the use of the department requests this certification will receive permits by tanks. July 1 of each year if: "UST system" or "tank system" means an underground (i) Adequate documentation of compliance, as specified storage tank, connected underground piping, underground by the department, is submitted to the ((Elef!aFtFReHt)) ancillary equipment, and containment system, if any. delegated agency, or, if no delegated agency exists, to the "Wastewater treatment tank" means a tank that is department; and designed to receive and treat an influent wastewater through (ii) ((The EloettftleRtatioH of eOffif!liaRee is st:tbffiittea by physical, chemical, or biological methods. the aeadliHe for sttbmittal established by the Sef!artffieRt iR its reqttest)) Applicable fees have been paid. AMENDATORY SECTION (Amending Order 91-26, filed (3) Eligibility for a permit. Tanks which are temporari- l0/29/91, effective 11129/91) ly closed under WAC 173-360-380 are not eligible to receive permits. Underground storage tank systems are eligible for WAC 173-360-130 Tank .permits and delivery of a permit if the following conditions are met: regulated substances. (1) Requirement for a permit. After (a) The owner or operator is in compliance with all July 1, 1991, no underground storage tank system, as defined requirements of this chapter, including the financial responsi- in this chapter, shall be operated without a valid permit from bility requirements, and chapter 173-340 WAC, if applicable, the department. However, possession of a valid permit does or the owner or operator is in conformance with a compli- not preclude enforcement against the owner or operator of ance schedule negotiated with and agreed to by the depart- the underground storage tank under this or other laws. ment; (2) Application for a permit. Permits for UST systems (b) The storage tank system is not known by the owner shall be obtained as follows: or operator to be leaking; and (a) To apply for a permit for ((wt))~ UST system (c) All annual state tank fees and local environmentally ((whieh is to he Hewly iR:stalled,)) the owner or operator sensitive area tank fees have been remitted. shall complete ((a Hotiee of iRteRt to iRstall aH UST system, [ 71] Proposed WSR 94-19-084 Washington State Register, Issue 94-19 (4) Delivery of regulated substances. Regulated (10) Appeals. The revocation of a permit may be substances shall not be delivered to any underground storage appealed to the pollution control hearings board, pursuant to tank requiring a permit under this section unless a valid chapter 43.21B RCW. permit is displayed on such tank itself or the dispensing or ( ( (11) Dis13i&)' of 13ermits for tightRess testiRg. A 13ermit measuring device connected thereto or, where appropriate, in ·whieh has beeft FeffiO'ted froffi dis13lay iR aeeordaRee with the office or kiosk of the facility where the tank is located s1:1bseetioR (7) of this seetioR ffiay be redis13layed for the or unless otherwise authorized in writing by the department. fll IFflOSe of reeeiviRg Feg1 1lated s1 1bstaRees iR order to e0Rd1 1et This subsection applies only to suppliers who directly a Yol1:1ffletrie tightRess test OR the storage systefft. If a leak transfer regulated substances into underground storage tank is detefffliRed to exist iR the 1:11313effflost le•1el of the system, systems. - the reg1 1lated s1 1bstaRee shall be immediately Femoved to a (5) Waste oil tanks. Tanks used to collect and store 13oiftt below the so1:1Fee of the leak. If a leak is detefffliRed used or waste oil regulated under this chapter shall not be to eilist below the 1 11313efffiost level of the system, all reg1 1lat pumped by a used or waste oil collector unless a valid ed s1:1bstaRees shall be imfflediately Femo·1ed from the permit is displayed on such tank itself or a device connected s~·stem. The Fef11 1ireffleRts of s1 1bseetioR (7) ef this seetioR thereto or, where appropriate, in the office or kiosk of the aRd the ref11:1ire1HeRt for re13ortiRg of eoRfirmed releases facility where the tank is located. This prohibition does not s13eeified iR 'NAG 173 360 372 shall be followed, regardless apply to a one-time removal of substances from tanks which of the loeatioR of the so1:1ree of the release iR the storage will not be used again for the storage of used or waste oil taRk system.)) once the substances are removed; such tanks must be properly closed or undergo the procedures for a change-in- AMENDATORY SECTION (Amending WSR 90-24-017, service in accordance with WAC 173-360-385. This filed 11128/90, effective 12/29/90) subsection applies only to used or waste oil collectors who WAC 173-360-190 Annual tank fees. An annual state directly transfer regulated substances from underground tank fee of seventy-five dollars per tank ((for the fiseal year storage tanks. eRdiRg J1:1Re 30, 1992, aRd eaeh fiseal year thereafter shall be (6) Delivery prohibited to leaking tanks. ((Exee13t as 13aid withiR thirty days of the billiRg date aRd RO later thaR s13eeified iR s1:1bseetioR (10) of this seetioR,)) ~uppliers shall the Deeefflber 31st of eaek fiseal year)) by every person who not deliver regulated substances to any underground storage owns an underground storage tank which: tank which is known by the supplier to be leaking, or to (1) Is located in this state; have leaked and not been properly repaired, regardless of the (2) Was required to be reported to the department under permit status of the tank. the Federal Underground Storage Tank Program of the (7) Delivery of regulated substances. If a confirmed Resource Conservation and Recovery Act of 1976, as release occurs from a permitted tank, in addition to meeting amended (42 U.S.C. Section 6901, et seq.); the reporting requirements of WAC 173-360-372, within (3) Is not permanently closed according to the require- twenty-four hours of having knowledge of the release the ments of this chapter ((oR J1:1Re 30 of the fiseal year 13reeed owner or operator shall lock the fill pipe and remove from display the permit for the tank from which the release has iRg the fiseal year for wkieh the fee is assessed)) as of the billing date; and occurred. At no time can the owner or operator receive (4) If required, for which corrective action has not been regulated substances, ( (exee13t as s13eeified iR s1:1bseetioR ( 10) completed in accordance with this chapter. of this seetioR,)) until all the applicable requirements of this chapter and chapter 173-340 WAC have been met. If the AMENDATORY SECTION (Amending Order 91-26, filed department determines that reasonable progress is not being 10/29/91, effective 11/29/91) made in meeting these requirements it may request that the owner or operator surrender the permit, as specified in WAC 173-360-200 Notification requirements. ( 1) subsection (8) of this section, for the tank from which the Notice of intent to install a new UST system. Except in the release occurred. circumstances defined in subsection (5) of this section, any (8) Permit revocation. The department may request the owner who intends to install a new UST system shall submit surrender of a permit for any tank which does not remain in a notice of such intent to the department or delegated agency compliance with the requirements of this chapter, including at least thirty days and not more than ninety days prior to financial responsibility requirements and payment of fees, or installing the UST system. Such notice shall meet the for any violation of the chapter by an underground storage following requirements: tank owner or operator, including refusal of access to (a) The notice of intent shall be provided on the property under WAC 173-360-140. Upon request of a appropriate Washington state form, which is available from representative of the department or delegated agency or upon the department; receipt of a letter from the department or delegated agency (b) Each UST system to be installed which is regulated requesting surrender of the permit, the owner or operator under this chapter shall be reported; must return the permit to the department or delegated agency. (c) Owners may provide notice for more than one UST within seven days. system using a single form, but UST systems to be installed (9) When a tank is closed, any active permit must be at separate sites shall be reported on separate forms; and returned to ecology within thirty days of the completion of (d) The completed form shall include all of the informa- the closure procedures. tion required on the form. (2) Notification of new UST systems in use. Within thirty days of bringing any newly installed UST system Proposed [ 72] Washington State Register, Issue 94-19 WSR 94-19-084 regulated under this chapter into use, the owner shall submit A site assessment meeting the requirements of WAC 173- notice of such UST system to the department. This notice 360-390 shall be completed prior to installing a tank in the shall meet the following requirements: excavation pit of a tank being replaced and prior to installing ~ (a) The notice shall be provided on the appropriate new piping in the piping trench of piping being replaced. Washington state underground storage tank notification form, (6) Changes to UST systems. Any changes in the which is available from the department; information initially reported in the notification form (b) Each tank regulated under this chapter shall be submitted under subsection (2), (4) or (5) of this section, reported; including temporary closure of an UST system that was (c) Owners may provide notice for more than one tank initially reported as being in use, shall be reported to the using a single notification form, but owners who own tanks department or delegated agency by submitting a new located at more than one site shall file a separate notification notification form within thirty days after such changes occur. form for each site; (7) Beginning October 24, 1988, any person who sells (d) Notification required under this section shall include a new tank which is intended to be used as an underground all of the information required on the form for each tank for storage tank, or an existing UST system or property includ- which notice must be given; and ing an existing UST system which is intended to be used as (e) Notification for tanks installed after December 22, an UST system, shall notify the purchaser of such tank or 1988, shall also certify compliance with the following UST system of the owner's notification obligations under requirements: this section. (i) Corrosion protection of steel tanks and piping under WAC 173-360-305 (I) and (2); AMENDATORY SECTION (Amending WSR 90-24-017, (ii) Financial responsibility under WAC 173-360-400 filed 11/28/90, effective 12/29/90) through 173-360-499; and WAC 173-360-210 Reporting and recordkeeping (iii) Release detection under WAC 173-360-335 and requirements. Owners and operators of UST systems shall 173-360-340. (3) Certification of installation ((eheeldist)). All owners cooperate fully with inspections, monitoring, and testing and operators of new UST systems shall ensure that ((tt conducted by the department or delegated agency, as well as lieeHseEi iHstallatieH SttfleFYiser eertifies that)) the methods requests for document submission, testing, and monitoring by used to install the tanks and piping comply with the require- the owner or operator pursuant to RCW 90.76.060. (1) Reporting. Owners and operators shall submit the ments in WAC 173-360-305( 4 ). Such certification shall be information specified in (a) through (e) of this subsection to accomplished by completing ((aH iHstallatieH eheeldist)) ~ the department or delegated agency: notification form, which is available from the department, as (a) Notification for all UST systems (WAC 173-360- specified in WAC 173-360-305(5). The form must be 200), which includes certification of installation for new signed by the certified UST supervisor. UST systems (WAC 173-360-305(5)); (4) Notification of existing UST systems. Owners of (b) Reports of all suspected releases (WAC 173-360- any existing UST system regulated under this chapter which 360), confirmed releases (WAC 173-360-372), and spills and has not previously been reported to the department shall overfills (WAC 173-360-375); provide notification regarding such UST system immediately, following the requirements of subsection (2) (a) through (e) (c) Reports required for corrective actions under chapter I 73-340 WAC; of this section. (d) A notification before permanent closure or change- Note: Owners and operators of UST systems that were in the ground in-service (WAC 173-360-385); and on or after May 8, 1986, unless taken out of operation on or before January I, 1974, were required to notify the department (e) The appropriate forms, certificates of compliance, · in accordance with the Hazardous and Solid Waste Amendments and evidence of financial responsibility (WAC 173-360-446). of 1984, Public Law 98-616, on a form published by Washing- (f) Checklists required for tank service activities, site ton state unless notice was given pursuant to section 103(c) of checks, and site assessments shall be ((stteffiitteEi ey taHk CERCLA. seniees flFeviEiers er perseas registereEi te fleFteFffi site (5) Emergency replacement of UST systems. eheelcs aHEi site assessffl:eHts, as ~fllieaele (WAC 173 360 (a) An exception to the thirty-day notice requirement for 630(12)))) signed by certified UST supervisors and submitted new installations in subsection (1) of this section is allowed to the department by the owner or operator. when an UST system is being replaced on an emergency (2) Recordkeeping. Owners and operators shall main- basis due to a release from the system being replaced. An tain the following information: emergency shall be regarded as a newly discovered release (a) Documentation of operation of corrosion protection from an UST system which is: equipment (WAC 173-360-320); (i) In operation at the time of the release; (b) Documentation of UST system repairs (WAC 173- (ii) Located at an operating facility; and 360-325(7) ); (iii) Necessary for the normal operation of the facility. (c) Recent compliance with release detection require- (b) Under the circumstances described in (a) of this ments (WAC 173-360-355); subsection, the notice of intent to install an UST system may (d) Results of the site assessment conducted at perma- be provided after the installation of the new system but no nent closure (WAC 173-360-398); ~ more than seven days after the installation is completed. (e) Corrective action records in accordance with chapter The information which must be included in the notice of 173-340 WAC; and intent form is the same as in subsection (1) of this section. l 73 J Proposed WSR 94-19-084 Washington State Register, Issue 94-19 (f) Evidence of financial assurance mechanisms used to (A) Steel Tank Institute "Specification for STI-P3 demonstrate financial responsibility (WAC 173-360-450). System of External Corrosion Protection of Underground (3) Availability and maintenance of records. Owners Steel Storage Tanks"; and operators shall keep the records required either: (B) Underwriters Laboratories Standard 1746, "Corro- ~ (a) At the UST site and immediately available for sion Protection Systems for Underground Storage Tanks"; inspection by the department or delegated agency; or (C) Underwriters Laboratories of Canada CAN4-S603- (b) At a readily available alternative site and be provid- M85, "Standard for Steel Underground Tanks for Flammable ed for inspection to the department or delegated agency upon and Combustible Liquids," and CAN4-G03.1-M85, "Standard request. for Galvanic Corrosion Protection Systems for Underground (c) In the case of permanent closure records required Tanks for Flammable and Combustible Liquids," and CAN4- under WAC 173-360-398, owners and operators are also S63 l-M84, "Isolating Bushings for Steel Underground Tanks provided with the additional alternative of mailing closure Protected with Coatings and Galvanic Systems"; or records to the department or delegated agency if they cannot (D) National Association of Corrosion Engineers be kept at the site or an alternative site as indicated above. Standard RP- 02-85, "Control of External Corrosion on Metallic Buried, Partially Buried, or Submerged Liquid AMENDATORY SECTION (Amending Order 91-26, filed Storage Systems," and Underwriters Laboratories Standard 10/29/91, effective 11/29/91) 58, "Standard for Steel Underground Tanks for Flammable and Combustible Liquids." WAC 173-360-305 Performance standards for new (c) The tank is constructed of a steel-fiberglass-rein- UST systems. In order to prevent releases due to structural forced- plastic composite;· or failure, corrosion, or spills and overfills for as long as the UST system is used to store regulated substances, all owners Note: The following industry codes may be used to comply with subsection (I )(c) of this section: Underwriters Laboratories and operators of new UST systems shall meet the following Standard 1746, "Corrosion Protection Systems for Underground requirements: Storage Tanks," or the Association for Composite Tanks ACT- (1) Tanks. Each tank shall be properly designed and 100, "Specification for the Fabrication of FRP Clad Under- constructed with material that is compatible with and ground Storage Tanks." impermeable to the stored substance, and any portion (d) The tank construction and corrosion protection are underground that routinely contains regulated substances determined by the department or delegated agency to be shall be protected from corrosion, in accordance with a code designed to prevent the release or threatened release of any of practice developed by a nationally recognized association stored regulated substance in a manner that is no less or independent testing laboratory as specified under (a) protective of human health and the environment than through (d) below: subsection (l)(a) through (c) of this section. (a) The tank is constructed of fiberglass-reinforced (2) Piping. The piping that routinely contains regulated plastic; or substances and is in contact with the ground shall be Note: The following industry codes may be used to comply with properly designed and constructed with material that is subsection (l)(a) of this section: Underwriters Laboratories compatible with and impermeable to the stored substance, Standard 1316, "Standard for Glass-Fiber-Reinforced Plastic and protected from corrosion in accordance with a code of Underground Storage Tanks for Petroleum Products"; Underwriter's Laboratories of Canada CAN4-S615-M83, practice developed by a nationally recognized association or "Standard for Reinforced Plastic Underground Tanks.for independent testing laboratory as specified below: Petroleum Products"; or American Society of Testing and (a) The piping is constructed of fiberglass-reinforced Materials Standard 04021-86, "Standard Specification for Glass- plastic; or Fiber-Rein forced Polyester Underground Petroleum Storage Tanks." Note: The following codes and standards may be used to comply with subsection (2)(a) of this section: (b) The tank is constructed of steel and cathodically protected in the following manner: (i) Underwriters Laboratories Subject 971, "UL Listed (i) The tank is coated with a suitable dielectric material; Non- Metal Pipe"; (ii) The tank is equipped with a factory-installed or (ii) Underwriters Laboratories Standard 567, "Pipe field-installed cathodic protection system designed by a Connectors for Flammable and Combustible and LP Gas"; corrosion expert; (iii) Underwriters Laboratories of Canada Guide ULC- (iii) Cathodic protection systems are designed and 107, "Glass Fiber Reinforced Plastic Pipe and Fittings for installed to include provisions f9r testing to allow a determi- Flammable Liquids"; and nation of current operating status as required in WAC 173- (iv) Underwriters Laboratories of Canada Standard CAN 360-320(2) and to facilitate testing by the department or 4-S633- M81, "Flexible Underground Hose Connectors." delegated agency in accordance with WAC 173-360-325 (5) (b) The piping is constructed of steel and cathodically and (6); and protected in the following manner: (iv) Cathodic protection systems are operated and (i) The piping is coated with a suitable dielectric maintained in accordance with WAC 173-360-320 or material; according to guidelines established by the department or (ii) Field-installed cathodic protection systems are delegated agency; or designed by a corrosion expert; (iii) Cathodic protection systems are designed and Note: The following codes and standards may be used to comply with subsection (l)(b) of this section: installed to include provisions for testing to allow a determi- nation of current operating status as required in WAC 173- Proposed [ 74] Washington State Register, Issue 94-19 WSR 94-19-084 360-320(2) and to facilitate testing by the department or of human health and the environment than the equipment delegated agency in accordance with WAC 173-360-325 (5) specified in subsection (3)(a)(i) or (ii) of this section; or and (6); and (ii) The UST system is filled by transfers of no more ~ (iv) Cathodic protection systems are operated and than twenty-five gallons at one time. maintained in accordance with WAC 173-360-320 or ( 4) Installation. All tanks and piping shall be properly guidelines established by the department or delegated installed by ((a lieeRsel'l taHk serviees fJFevil'ler)) an UST agency; or supervisor who is certified in tank system installation in Note: The following codes and standards may be used to comply with accordance with a code of practice developed by a nationally subsection (2)(b) of this section: recognized association or independent testing laboratory and (A) National Fire Protection Association Standard 30, in accordance with the manufacturer's instructions. "Flammable and Combustible Liquids Code"; Note: Tank and piping system installation practices and procedures (B) American Petroleum Institute Publication 1615, described in the following codes may be used to comply with "Installation of Underground Petroleum Storage Systems"; the requirements of subsection (4) of this section: (C) American Petroleum Institute Publication 1632, (a) American Petroleum Institute Publication 1615, "Cathodic Protection of Underground Petroleum Storage "Installation of Underground Petroleum Storage System"; or Tanks and Piping Systems"; and (b} Petroleum Equipment Institute Publication RPIOO, (D) National Association of Corrosion Engineers "Recommended Practices for Installation of Underground Standard RP- 01-69, "Control of External Corrosion on Liquid Storage Systems"; or Submerged Metallic Piping Systems." (c) American National Standards Institute Standard (c) The piping construction and corrosion protection are B31.3, "Petroleum Refinery Piping," and American National determined by the department or delegated agency to be Standards Institute Standard B3 l.4 "Liquid Petroleum designed to prevent the release or threatened release of any Transportation Piping System." stored regulated substance in a manner that is no less (5) Certification of installation. All owners and opera- protective of human health and the environment than the tors shall ensure ((that a lieeftsel'l taftk seniees previtler requirements in subsection (2)(a) and (b) of this section. eertifies)) compliance with subsection (4) of this section by (d) Metal flexible underground hose connectors shall be submitting a properly completed ((iRstallatieR eheeldist)) cathodically protected or covered with sleeves or jackets that notification form to the (( l'lep!H'tHteRt eH a teffil previtlel'l by will provide corrosion protection over the operating life of the tlepaFtmeRt as re< J t1iretl ifl 'NAG 173 360 630(12))) the UST system. delegated agency, or, if no delegated agency exists, to the (3) Spill and overfill prevention equipment. department. The form must be signed by a certified UST ~ (a) Except as provided in subsection (3)(b) of this supervisor. ' section, to prevent spilling and overfilling associated with transfer of regulated substances to the UST system, owners AMENDATORY SECTION (Amending Order 91-26, filed and operators shall use the following spill and overfill 10/29/91, effective 11/29/91) prevention equipment: (i) Spill prevention equipment that will prevent release WAC 173-360-310 Upgrading requirements for of regulated substances to the environment when the transfer existing UST systems. (1) Alternatives allowed. Not later hose is detached from the fill pipe (for example, a spill than December 22, 1998, all existing UST systems shall catchment basin); and comply with one of the following requirements: (ii) Overfill prevention equipment that will: (a) New UST system performance standards under (A) Automatically shut off flow into the tank when the WAC 173-360-305; tank is no more than ninety-five percent full; (b) The upgrading requirements in subsections (2) (B) Alert the transfer operator when the tank is no more through (4) of this section; or than ninety percent full by restricting the flow into the tank (c) Closure requirements under WAC 173-360-380 or triggering a high-level alarm; or through 173- 360-398, including applicable requirements for (C) Restrict flow thirty minutes prior to overfilling, alert corrective action under WAC 173-360-399. the operator with a high level alarm one minute before (2) Tank upgrading requirements. Steel tanks shall be overfilling, or automatically shut off flow into the tank so upgraded ((by a lieeRsetl taf!k seniees previtler)) ill that none of the fittings located on top of the tank are certified UST supervisor to meet one of the following exposed to regulated substances due to overfilling. requirements in accordance with a code of practice devel- Note: oped by a nationally recognized association or independent Overflow prevention equipment that will automatically shut off or restrict flow into the tank should not be used where a testing laboratory: pressurized fuel transfer system may be employed since an (a) Interior lining. A tank may be upgraded by internal overflow may occur when the flow is suddenly shut off or lining if: restricted. (i) The lining is installed in accordance with the (b) Owners and operators are not required to use the requirements of WAC 173-360-325; and spill and overfill prevention equipment specified in subsec- (ii) Within ten years after lining, and every five years tion (3)(a) of this section if: thereafter, the lined tank is internally inspected and found to ~ (i) Alternative equipment is used that is determined by be structurally sound with the lining still performing in the department or delegated agency to be no less protective accordance with original design specifications, unless [ 75] Proposed WSR 94-19-084 Washington State Register, Issue 94-19 cathodic protection is also installed within ten years of lining the requirements of WAC 173-360-305 (2)(b)(ii), (iii), and the tank, as specified in WAC 173-360-310 (2)(c). (iv). (b) Cathodic protection. A tank may be upgraded by Note: The codes and standards listed in the note following WAC 173- ~ cathodic protection if the cathodic protection system meets 360-305 (2)(b) may be used to comply with this requirement. ~ the requirements of WAC 173-360-305 (l)(b)(ii), (iii), and (4) Spill and overfill prevention equipment. To prevent (iv) and the integrity of the tank is ensured using one of the spilling and overfilling associated with transfer of regulated following methods: substances to the UST system, all existing UST systems (i) The tank is internally inspected and assessed to shall comply with new UST system spill and overfill ensure that the tank is structurally sound and free of corro- prevention equipment requirements specified in WAC 173- sion holes prior to installing the cathodic protection system; 360-305(3), except that an UST system that is filled by or transfers of no more than twenty-five gallons at a time is not (ii) The tank has been installed or internally lined for required to use spill and overfill prevention equipment. less than ten years and is monitored monthly for releases in (5) ((TaHk serviees flrevieers)) Certified UST supervi- accordance with WAC 173-360-345 (6)(e) through ((f61ttt)) sors who perform any of the tank services described in this fil; or section shall certify that such services comply with the (iii) The tank has been installed or internally lined for requirements of this section by ((sHbmittiHg)) signing the less than ten years and is assessed for corrosion holes by appropriate checklist(s) ((~)) provided by the department conducting two tightness tests that meet the requirements of ((iH aeeereaHee witk WAC 173 360 630(12))). WAC 173-360-345 (6)(d). The first tightness test shall be conducted prior to installing the cathodic protection system. AMENDATORY SECTION (Amending WSR 90-24-017, The second tightness test shall be conducted between three filed 11/28/90, effective 12/29/90) and six months following the first operation of the cathodic protection system; or WAC 173-360-320 Operation and maintenance of (iv) The tank is assessed for corrosion holes by a corrosion protection. All owners and operators of steel method that is determined by the department or delegated UST systems with corrosion protection shall comply with the agency to prevent releases in a manner that is no less following requirements to ensure that releases due to protective of human health and the environment than corrosion are prevented for as long as the UST system is subsection (2)(b)(i) through (iii) of this section. used to store regulated substances: (c) Internal lining combined with cathodic protection. (1) All corrosion protection systems shall be operated A tank may be upgraded by both internal lining and cathodic and maintained to continuously provide corrosion protection protection if: to the metal components of that portion of the tank and (i) The lining is installed in accordance with the piping that routinely contain regulated substances and are in requirements of WAC 173-360-325; and contact with the ground. (ii) The cathodic protection system is installed within (2) All UST systems equipped with cathodic protection ten years of the tank being lined and meets the requirements systems shall be inspected for proper operation by ((a of WAC 173-360-305 (l)(b)(ii), (iii), and (iv). lieeHsee SHflerviser ef eatkeeie flFeteetieH iHstallatieH aHe Note: The following codes and standards may be used to comply with ~)) an UST supervisor who is certified in cathodic this section: protection in accordance with the following requirements: (a) Frequency. All cathodic protection systems shall be (A) American Petroleum Institute Publication 1631, tested when they are installed, and again between one and "Recommended Practice for the Interior Lining of Existing six months after installation, and at least every three years Steel Underground Storage Tanks"; thereafter or according to another reasonable time frame (B) National Leak Prevention Association Standard 631, established by the department or delegated agency; and "Spill Prevention, Minimum 10 Year Life Extension of (b) Inspection criteria. The criteria that are used to Existing Steel Underground Tanks by Lining Without the determine that cathodic protection is adequate as required by Addition of Cathodic Protection"; this section shall be in accordance with a code of practice (C) National Association of Co~rosion Engineers developed by a nationally recognized association. Standard RP- 02-85, "Control of External Corrosion on Metallic Buried, Partially Buried, or Submerged Liquid Note: National Association of Corrosion Engineers Standard RP-02-85, "Control of External Corrosion on Metallic Buried, Partfally Storage Systems"; Buried, or Submerged Liquid Storage Systems," may be used to (D) American Petroleum Institute Publication 1632 comply with subsection (2)(b) of this section. "Cathodic Protection of Underground Petroleum Storag~ Tanks and Piping Systems"; and (3) UST systems with impressed current cathodic (E) Steel Tank Institute Publication STI F894-91 protection systems shall also be inspected every 60 days to "Specifications for External Corrosion Protection FRP ensure the equipment is running properly. Composite Underground Steel Storage Tanks." ( 4) For UST systems using cathodic protection, records (3) Piping upgrading requirements. Metal piping that of the operation of the cathodic protection shall be main- routinely contains regulated substances and is in contact with tained to demonstrate compliance with the performance the ground shall be cathodically protected in accordance with standards in this section. These records shall provide the a code of practice developed by a nationally recognized following: (a) The results of the last three inspections required in association or independent testing laboratory and shall meet subsection (3) of this section; and Proposed [ 76] Washington State Register, Issue 94-19 WSR 94-19-084 (b) The results of testing from the last two inspections ( c) Another test method is used that is determined by required in subsection (2) of this section. the department or delegated agency to be no less protective ~ (5) ((TaHk serviees proYiders)) Certified UST supervi- of human health and the environment than those listed ' sors who perform any of the tank services described in this above. section shall certify that such services comply with the (5) Except as specified in subsection (6) of this section, requirements of this section by ((s1:1emittiHg)) signing the within six months following the repair of any cathodically appropriate checklist(s) ((~)) provided by the department protected UST system, the cathodic protection system shall ((iH aeeerdaHee witk WAC 173 360 e30(12))). be tested in accordance with WAC 173-360-320 (2) and (3) to ensure that it is operating properly. AMENDATORY SECTION (Amending WSR 90-24-017, (6) Any repair to a cathodic protection system shall be filed 11/28/90, effective 12/29/90) tested in accordance with WAC 173-360-320 (2) and (3), at WAC 173-360-325 Repairs of UST systems. Repairs the time of the repair and again between one and six months following the repair. to UST systems shall be performed by a certified UST (7) UST system owners and operators shall maintain supervisor. Owners and operators of UST systems shall records of each repair for the remaining operating life of. the ensure that repairs will prevent releases due to structural UST site that demonstrate compliance with the requirements failure or corrosion as long as the UST system is used to of this section. store regulated substances. Any UST system which is (8) ((TaHk seF¥iees pro,·iders)) Certified UST supervi- repaired to correct a structural defect must also be upgraded sors who perform any of the tank services described in this at the time of the repair to. meet the requirements specified section shall certify that such services comply with the in WAC 173-360-310 (l)(a) or (b), and must employ a requirements of this section by ((stieFHittiHg)) signing the method of release detection for the tank as specified in WAC appropriate checklist(s) ((~)) provided by the department 183-360-335, 173-360-340 or 173-360-345, as applicable, ((iR aeeerdaHee with WAC 173 3e0 e30(12))). and a method of release detection for the piping as specified in WAC 173-360-350. The repairs shall meet the following AMENDATORY SECTION (Amending Order 91-26, filed requirements: 10/29/91, effective 11/29/91) (1) Repairs to UST systems shall be properly conducted ((ey a lieeHsed taHk sen·iees preYider)) by an UST supervi- WAC 173-360-330 Release detection compliance sor certified in tank installation and retrofitting in accordance schedule. Owners and operators of all UST systems shall with a code of practice developed by a nationally recognized comply with the release detection requirements of WAC association or an independent testing laboratory. 173-360-330 through 173-360-355 by December 22 of the Note: The following codes and standards may be used to comply with year listed in the following table: subsection (I) of this section: National Fire Protection Associa- TABLE: SCHEDULE FOR PHASE-IN OF RELEASE DETECTION tion Standard 30, "Flammable and Co"mbustible Liquids Code"; American Petroleum Institute Publication 2200, "Repairing Year Year when release detection is required Crude Oil, Liquified Petroleum Gas, and Product Pipelines"; System (by December 22 of the year indicated) American Petroleum Institute Publication 1631, "Recommended was Practice for the Interior Lining of Existing Steel Underground installed 1989 1990 1991 1992 1993 1994 1995 Storage Tanks"; and National Leak Prevention Association Before 1965 Standard 631, "Spill Prevention, Minimum JO Year Life RD P E or date Extension of Existing Steel Underground Tanks by Lining unknown. Without the Addition of Cathodic Protection." 1965-69 .. P/RD E (2) Repairs to fiberglass-reinforced plastic tanks shall be 1970-74 .. P RD E made in accordance with the manufacturer's specifications or 1975-79 .. P RD E a code of practice developed by a nationally recognized 1980-88 .. P RD E association or an independent testing laboratory. New tanks (after December 22, 1988,) immediately upon (3) Metal pipe sections and fittings that have released installation, except that emergency generator tanks installed regulated substances as a result of corrosion or other damage between 1989 and 1990 must have release detection by 1996 shall be replaced. Fiberglass pipes and fittings may be and emergency generator tanks installed after December 29, repaired in accordance with the manufacturer's specifica- 1990, must have release detection immediately upon installa- tions. tion. (4) Repaired tanks and piping shall be tightness tested P- Except for pressurized piping associated with in accordance with WAC 173-360-345 (6)(d) and 173-360- emergency power generator tanks, ((Htl:lSt eegiR)) release 350 (3)(b) within thirty days following the date of the detection required by December 22, ((-1992)) 1990. completion of the repair except as provided in subsection (4) RD- Except for emergency power generator tanks, must (a) through (c), of this section: begin release detection for tanks and suction piping in (a) The repaired tank is internally inspected in accor- accordance with WAC 173-360-335 (2)(a), 173-360-350 dance with a code of practice developed by a nationally (2)(b ), and 173-360-340. recognized association or an independent testing laboratory; E- Must begin release detection for emergency power or generator tanks and piping in accordance with WAC 173- (b) The repaired portion of the UST system is monitored 360-335 (2)(a) and 173-360-350 (2)(a) or (b). monthly for releases in accordance with a method specified in WAC 173-360-345 (6)(e) through ((t61ft+)) ffi; or [ 77] Proposed WSR 94-19-084 Washington State Register, Issue 94-19 ((l>lete: Dates Jlreeetli11g tile effueti, e tl111e ef this n1le eerresJleRll te (iii) Be checked for evidence of a release at least every fetler11I rett11ireFReRts 1111tler 49 CPR 289 1111!1 ftle i11el11tletl here thirty days. le reReet ee11ferFRity te tile fetler11I r11le.)) Note: The provisions of 40 CFR 265.193, Containment and Detection ~ AMENDATORY SECTION (Amending WSR 90-24-017, of Releases, may be used to comply with these requirements. ~ filed 11/28/90, effective 12/29/90) (b) Double-walled tanks shall be designed, constructed, and installed .to: WAC 173-360-335 Release detection for petroleum (i) Contain a release from any portion of the inner tank UST systems. (1) Owners and operators of new and within the outer wall; and existing petroleum UST systems shall provide a method, or (ii) Detect the failure of the inner wall. combination of methods, of release detection that: (c) External liners (including vaults) shall be designed, (a) Can detect a release from any portion of the tank and the connected underground piping that routinely contains constructed, and installed to: (i) Contain one hundred ten percent of the capacity of a regulated substance; the largest tank within its boundary; (b) Is installed, calibrated, operated, and maintained in (ii) Prevent the interference of precipitation or ground- accordance with the manufacturer's instructions, including water intrusion with the ability to contain or detect a release routine maintenance and service checks for operability or of regulated substances; and running condition; and (c) Meets the performance requirements in WAC 173- (iii! Surround the tank completely (i.e., it is capable of 360-345 or 173-360-350. preventing lateral as well as vertical migration of regulated substances). (2) Owners and operators of petroleum UST systems shall monitor tanks and piping for releases as follows: (d) Underground piping shall be equipped with second- (a) Tanks. Tanks shall be monitored at least every ary containment that satisfies the requirements of subsection (2)(a) of this section (e.g., trench liners, jacketing ((ef)) thirty days for releases using one of the methods listed in double-walled pipe). In addition, underground piping that WAC 173-360-345 (6)(e) through ((~)).ill except as conveys regulated substances under pressure shall be provided in WAC 173-360-345 (2) through (5). ~ equipped with an automatic line leak detector in accordance (b) Piping. Underground piping that routinely contains with WAC 173-360-350 (3)(a). regulated substances shall be monitored for releases as (e) Other methods of release detection may be used if required under WAC 173-360-350. owners and operators: (3) Owners and operators of any existing UST system (i) Demonstrate to the department or delegated agency that cannot apply a method of release detection that complies that an alternate method can detect a release of the stored with the applicable requirements of WAC 173- 360-330 substance as effectively as any of the methods allowed in • through 173-360-355 shall complete the closure procedures WAC 173-360-345 (6)(b) through ((~)).ill can detect a ~ in WAC 173-360-380 through 173-360-398 by the date on release of petroleum; which release detection is required for that UST system (ii) Provide information to the department or delegated under WAC 173-360-330. agency on effective corrective action technologies, health AMENDATORY SECTION (Amending WSR 90-24-017, risks, and chemical and physical properties of the stored filed 11/28/90, effective 12/29/90) substance, and the characteristics of the UST site; and (iii) Obtain approval from the department or delegated WAC 173-360-340 Release detection for hazardous agency to use the alternate release detection method before