The purpose of this chapter is to establish a program for providing technical assistance regarding a release or suspected release from an eligible petroleum storage tank system. Under this program, the agency will provide advice and technical assistance regarding a completed or proposed independent remedial action and application of chapters 70A.330 and 70A.305 RCW.

Any opinion provided by the agency under this program is advisory only and not binding upon either the pollution liability insurance agency or the department of ecology. Participation in this program is not a settlement with the state under the Model Toxics Control Act. Persons conducting independent remedial actions do so at their own risk and may be required to take additional remedial actions by the department of ecology if such actions are determined to be necessary under the Model Toxics Control Act.

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

(1) "Abandoned heating oil tank" means a consumptive use heating oil tank system that has been abandoned or decommissioned and is no longer in service or use.

(2) "Active heating oil tank" means a consumptive use heating oil tank system that is in use.

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

(4) "Applicant" means the party who is seeking advice and assistance from the advice and technical assistance program, whose application has been accepted by the agency.

(5) "Decommissioned heating oil tank" means a heating oil tank system that has been removed from operation by an approved method such as abandonment in place (e.g., cleaning and filling with an inert material) or by removal from the ground.

(6) "Director" means the director of the Washington state pollution liability insurance agency.

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

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

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

(8) "Heating oil" means any petroleum product used for space heating in oil-fired furnaces, heaters and boilers, including stove oil, diesel fuel, or kerosene. "Heating oil" does not include petroleum products used as fuel in motor vehicles, marine vessels, trains, buses, aircraft, or any off-highway equipment not used for space heating, or the generation of electrical energy or waste oil, hoists, pipelines, spills from transportation or a form of transport.

(9) "Heating oil tank system" means a tank and its connecting pipes, whether above or below ground, or in a basement, with pipes connected to the tank for space heating of human living or working space on the premises where the tank is located.

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

(11) "Petroleum" means any petroleum-based substance including crude oil or any fraction that is liquid at standard conditions of temperature and pressure. The term petroleum includes, but is not limited to, petroleum and petroleum-based substances comprised of a complex blend of hydrocarbons, such as motor fuels, jet fuels, distillate fuel oils, residual fuel oils, lubricants, petroleum solvents, used oils, mineral spirits, Stoddard solvents, waste oils and heating oils. The term petroleum does not include propane, asphalt, or any other petroleum product that is not liquid at standard conditions of temperature and pressure. Standard conditions of temperature and pressure are at 60 degrees Fahrenheit and 14.7 pounds per square inch absolute.

(12) "Petroleum storage tank system" means a storage tank system that contains petroleum or a mixture of petroleum with de minimis quantities of other substances. The systems include those containing motor fuels, jet fuels, distillate fuel oils, residual fuel oils, lubricants, petroleum solvents, used oils, and heating oils. "Petroleum storage tank system" does not include any storage tank system regulated under chapter 70A.300 RCW.

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

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

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

(16) "Sampling and testing" means a PLIA-approved and recognized technique(s) or procedure(s) for measuring or determining the presence and extent of hydrocarbons in the environment.

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

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

(2) Eligibility.

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

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

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

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

(b) An applicant that has received funding from the PLIA underground storage tank loan and grant program; the heating oil pollution liability insurance program; or the commercial underground storage tank reinsurance program is presumed eligible for the technical assistance program unless the agency or the department of ecology determines that the applicant does not have an eligible petroleum storage tank system.

(3) Services. The agency may provide the following advice and technical assistance under the program:

(a) Observe and/or interpret the results of site investigation including, but not limited to, sampling and testing, or other appropriate assessments conducted by the applicant;

(b) Provide technical assistance on how to meet the substantive requirements of MTCA;

(c) Review planned independent remedial actions for a site or property and provide written opinions on whether further remedial action is likely necessary to meet the substantive requirements of MTCA;

(d) Review completed independent remedial actions for a site or property and provide written opinions on whether further remedial action is necessary to meet the substantive requirements of MTCA;

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

(f) Other appropriate activities approved by the director.

(4) The applicant may select an independent contractor to perform remedial actions at the site. The independent contractor is not to be considered for any purpose an employee or agent of PLIA. The applicant will enter into an agreement with the contractor regarding scope or extent of work and fees for services.

(5) Sampling and testing protocols. The agency will provide requested advice and technical assistance only if sampling and testing are performed in accordance with agency-approved methodology.

(6) Rescinding opinions. The agency may rescind any written opinion if the agency received information that conditions at the site changed or the site no longer meets the substantive requirements of MTCA.

(a) Where the issues are minor or administrative in nature, the agency will provide the applicant with written notice detailing the issues to be addressed. The applicant will have 60 days to respond to the agency with how the issues are addressed. If the issues are not addressed to PLIA's satisfaction, the agency may issue a letter rescinding the written opinion. PLIA will notify the department of ecology if PLIA rescinds a no further action opinion.

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

(1) Consultation. Where PLIA issues a written opinion under this program, and the remedial action requires an environmental covenant, the applicant must consult with and seek comment on the draft environmental covenant from a city or county department with land use planning authority for real property subject to the covenant. The consultation and opportunity for comment must take place before the property owner records the environmental covenant.

(2) Periodic review. Where PLIA has issued a written opinion under this program, and the remedial action requires an environmental covenant, PLIA must conduct a review of the effectiveness of the environmental covenant. The agency must conduct the periodic review at least once every five years.

(3) Violation. If the terms of the environmental covenant are not complied with, the agency may rescind the no further action opinion.

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

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

(4) Termination. If the conditions at the site requiring an environmental covenant no longer exist, the property owner may petition the agency to have the covenant terminated. PLIA will seek public comment on the proposed termination of the environmental covenant. If, after the public comment period, PLIA agrees to the termination of the environmental covenant, the agency will seek termination by consent of the covenant.

(5) Reimbursement. The agency may recover costs related to environmental covenants from the applicant and/or the property owner. These costs are not covered by WAC 374-80-050.

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

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

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

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

(3) The applicant must pay the fee upon acceptance into the program. No advice or technical assistance will be provided until the fee has been paid.

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

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

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

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

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

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

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