WAC 173-401-920
Accountability -- Ecology and delegated local
authorities. (1) Public participation during fee determination
process. Ecology shall provide for public participation in the
fee determination process described under WAC 173-401-900, which
provision shall include but not be limited to the following:
(a) Ecology shall provide opportunity for public review of
and comment on each biennial workload analysis and budget.
(b) Ecology shall publish in the Permit Register notice of
issuance of its draft biennial workload analysis and draft
biennial budget and issuance of its annual fee schedule.
(c) Ecology shall make available for public review, on or
before February 28 of each even-numbered year, copies of its
draft biennial workload analysis and draft biennial budget. Ecology shall make available for public review, on or before
October 31 of each year, copies of its annual fee schedule. Ecology shall maintain a mailing list of persons requesting
opportunity for review under this subsection or under WAC 173-401-925(1). Ecology may, from time to time, inform the
public of the opportunity to be placed on the mailing list and
may delete from the list persons who fail to respond to an
inquiry regarding continued interest in receiving materials.
(d) Ecology shall provide at least sixty days for public
comment on the draft biennial workload analysis and draft
biennial budget. Such sixty-day period for comment shall run
from the date ecology mails the draft workload analysis and draft
budget as provided in (c) of this subsection.
(2) Tracking of revenues, time and expenditures.
(a) Revenues. Ecology shall track revenues on a
source-specific basis.
(b) Time and expenditures. Ecology shall track time and
expenditures on the basis of source categories and functional
categories, except that, as part of a demonstration project
undertaken pursuant to RCW 70.94.162, ecology will track time and
expenditures on a source-specific basis for at least three but no
more than five sources.
(i) Sources will be grouped into five categories, as
follows:
(A) Kraft pulping mills;
(B) Sulfite pulping mills;
(C) Metal processing and related industries;
(D) Sources located on the Hanford Reservation; and
(E) Other sources, including those sources under the
jurisdiction of ecology's central and eastern regional offices.
(ii) Functions will be grouped into several categories and
subcategories, as follows:
(A) Program management and support;
(B) Program development;
(C) Permit processing;
(I) Application assistance and review;
(II) Preparing draft and final permits;
(D) Permit management and compliance activities;
(E) Technical assistance; and
(F) Outreach and education.
(c) Use of information obtained from tracking revenues, time
and expenditures.
(i) Ecology shall use the information obtained from tracking
revenues, time and expenditures to modify its workload analysis
during the biennial review provided for under WAC 173-401-900.
(ii) The information obtained from tracking revenues, time
and expenditures shall not provide a basis for challenge to the
amount of an individual source's fee.
(3) Periodic fiscal audits, reports and performance audits. A system of regular, periodic fiscal audits, reports and
performance audits shall be conducted in order to evaluate the
implementation of the operating permit program by ecology and
delegated local authorities. Ecology and each delegated local
authority shall gather baseline data, where appropriate, to which
the various evaluation criteria will be compared.
(a) Fiscal audits. Ecology and each delegated local
authority shall contract with the state auditor to have the
auditor perform a standard fiscal audit of ecology's and each
delegated local authority's operating permit program every other
year.
(b) Annual routine performance audits. Ecology and each
local authority shall be subject to annual routine performance
audits, except that the routine performance audit shall be
incorporated into the extensive performance audit, conducted
pursuant to subsection (3)(d) of this section, in each year
during which an extensive performance audit is conducted. Ecology shall conduct the audits of each of the delegated local
authorities. An individual from another state's environmental
agency shall conduct the audit of ecology. In the event that no
such individual is able to serve in this capacity, an independent
contractor shall conduct the audit of ecology; the contractor is
to be free of any conflicts of interest, to the extent possible,
and is to be agreed upon by a committee comprised of one
representative each from the environmental and regulated
communities, and one representative of a delegated local
authority. Any contractor applying to conduct the audit of
ecology shall be required to disclose in its application any
potential conflicts of interest. The annual routine performance
audits shall incorporate by reference information contained in
the relevant annual report and, every other year, in the relevant
fiscal audit. The annual routine performance audits shall
address the following questions and measures of performance:
(i) How many permits lapsed?
(A) Explanation of lapse;
(B) Comments;
(ii) What is the total number of permit applications or
applications for permit modifications?
(A) Average application processing time;
(B) Number of disapproved applications and reason for
disapproval;
(C) Number of permit applications regarding which permitting
authority had to return to source to request additional
information. Number of times permitting authority had to return
to source before permit deemed complete;
(iii) To how many permits did the EPA object? To what
percentage of permits did EPA object (including objection upon
petition from public)?
(A) Grounds for objection;
(B) Agency response;
(I) Deficiency remedied;
(II) Timeliness (that is to say, within ninety days? Did
administrator issue permit?)
(iv) How many permits were subject to legal/administrative
challenge? What percentage of permits were subject to
legal/administrative challenge?
(A) Challenging party;
(B) Grounds for challenge;
(I) Substantive;
(II) Procedural;
(C) Outcome of challenge/prevailing party;
(D) Agency response;
(v) How many administrative enforcement actions were taken
for failure to meet permit requirements? How many notices of
violation were issued?
(A) Date issued; time elapsed since violation discovered;
(B) Reason;
(C) Result (that is to say, penalties? Orders of agreement?
Legal challenge?)
(D) Source returned to compliance; date; (if not, explain);
(vi) What was the frequency of inspections at each facility?
(A) Announced;
(B) Unannounced;
(C) Comparison with baseline data;
(vii) How many accidental releases, as defined in Section
112(r) of the Federal Clean Air Act, occurred?
(A) Reason identified;
(B) Agency response;
(C) Resulting changes to terms of permit, if any;
(D) Comparison with baseline data;
(viii) What was the amount of the expenditures per permit
issuance?
(A) Average for program;
(B) Average for source category;
(c) Annual random individual permit review. Five percent of
the permits issued by each permitting authority, or if five
percent of the permits issued by a permitting authority is equal
to or less than one, at least one permit issued by the permitting
authority shall be subject to review each year in conjunction
with the annual routine performance audit. The permit to be
reviewed shall be selected at random. Ecology shall conduct the
review in the case of each of the delegated local authorities. An individual from another state's environmental agency shall
conduct the audit of ecology. In the event that no such
individual is able to serve in this capacity, an independent
contractor shall conduct the audit of ecology; the contractor is
to be free of any conflicts of interest, to the extent possible
and is to be agreed upon by a committee comprised of one
representative each from the environmental and regulated
communities, and one representative of a delegated local
authority. Any contractor applying to conduct the audit of
ecology shall be required to disclose in its application any
potential conflicts of interest. The annual random individual
permit review shall address the following questions and measures
of performance:
(i) Can reviewer, from information available in permit,
determine all requirements to which the source is subject?
(ii) Does permit include all applicable requirements?
(iii) Can reviewer, from information available in file,
determine compliance status for each emission point? For
facility?
(iv) Does the file include technical reviews, source tests,
CEM performance specification tests, permit applications, record
of citizen complaints, correspondence with facility and other
supporting documentation?
(v) Are all major emissions points identified in permit?
(vi) Are all pieces of control equipment identified in
permit?
(vii) Does the permit specify operation and maintenance
requirements?
(viii) Does the permit specify all monitoring, recording,
reporting and certification requirements to which source is
subject?
(ix) Are alternative operating scenarios specified in
permit? Are the conditions adequately specified?
(x) Is the permit expiration date noted?
(xi) Does the permit indicate which requirements are
enforceable by federal/state mechanisms? Does the permit state
the existence of opportunity for PCHB and other judicial review
and opportunity to petition EPA?
(xii) Were all procedural requirements, including notice to
public and affected states, satisfied in issuing/modifying
permit?
(xiii) Did permit writer work with source to identify and
consider opportunities for pollution prevention? Were any
pollution prevention measures implemented?
(xiv) Evaluation of overall performance:
(A) Is permit complete and understandable? Assess
completeness, clarity, etc.;
(B) Assess procedural adequacy of permit issuance process.
(d) Periodic extensive performance audits. Ecology and each
local authority shall be subject to extensive performance audits
every five years. In addition, ecology or a delegated local
authority may be subject to an extensive performance audit more
frequently under the conditions of WAC 173-401-920 (3)(e). Ecology shall conduct the audits of each of the delegated local
authorities. An individual from another state's environmental
agency shall conduct the audit of ecology. In the event that no
such individual is able to serve in this capacity, an independent
contractor shall conduct the audit of ecology; the contractor is
to be free of any conflicts of interest, to the extent possible
and is to be agreed upon by a committee comprised of one
representative each from the environmental and regulated
communities, and one representative of a delegated local
authority. Any contractor applying to conduct the audit of
ecology shall be required to disclose in its application any
potential conflicts of interest. The extensive performance
audits shall incorporate by reference the information contained
in the annual reports and the routine performance audits for the
relevant period and shall take the place of the routine
performance audit every fifth year (that is to say, they gather
the routine performance audit information in addition to the
information indicated below). The extensive performance audits
shall address the following questions and measures of
performance:
(i) What was the number of modifications?
(A) Comparison with projection;
(B) Applicable to how many sources;
(ii) Did the permitting authority have personnel adequate to
complete workload in timely fashion?
(iii) Were the total fees assessed adequate to fund program?
(A) Amount of shortfall or overcharge;
(B) Explanation;
(iv) Were the total fees collected equal to total fees
assessed?
(A) Amount/percentage of shortfall;
(B) Reason for shortfall;
(v) Was there a program budget increase or decrease over
period?
(A) Percentage increase or decrease;
(B) Explanation (for example, sources no longer part of
operating permit program; new federal requirements implemented
through permit program);
(vi) What was the number of instances of late fee payment?
(A) Agency response;
(B) Result (that is to say, was the fee paid? Penalty
assessed? Time interval between payment and date fee amount
due?)
(vii) How many sources were in compliance with all
applicable requirements? What percentage of sources were in
compliance with all applicable requirements? How do the number
and percentage of sources in compliance with all applicable
requirements compare with baseline compliance data?
(viii) What was the number of businesses availing themselves
of services offered by state or local business assistance
programs? What level of effort was required to provide
assistance?
(ix) Were inspection results adequately documented?
(x) Were the methods used to ascertain compliance and the
frequency of required reporting and related activities
appropriate for each facility?
(A) Frequency of inspections appropriate for relevant
facility;
(B) Monitoring requirements appropriate for relevant
facility;
(xi) Were the operation and maintenance plans adequate?
(xii) Were public information efforts adequate?
(A) Public notice for actions relating to permitted sources
meets/exceeds statutory requirements;
(B) Agency/permit writers accessible to regulated community,
to environmental community, and to stakeholders and general
public;
(C) Other outreach efforts;
(xiii) Evaluation of overall performance:
(A) Is permitting authority issuing quality permits?
(B) Is permitting authority issuing/renewing permits in
timely fashion?
(C) Is permitting authority ensuring that sources are in
compliance with terms and conditions of permit?
(D) Is permitting authority effectively using operating
permit as a tool for securing environmental improvements?
(E) Is permitting authority efficiently administering
program (includes, in the case of ecology, statewide program)?
Indicate inefficiencies, where these exist;
(F) Evaluation of particular questions identified in annual
report/routine performance audit for further examination;
(e) Finding of inadequate administration or need for further
evaluation. If, in the process of conducting a fiscal audit,
annual routine performance audit, or annual random individual
permit review, the entity conducting the audit finds that ecology
or a delegated local authority is inadequately administering the
operating permit program or finds that further evaluation is
immediately warranted, an extensive performance audit shall be
conducted, as provided in WAC 173-401-920 (4)(d).
(f) Preaudit public meeting with auditor. Ecology and each
delegated local authority shall provide the opportunity for
interested individuals to provide comment to the entity
conducting an annual routine performance audit, annual random
permit review or extensive performance audit prior to the audit. Such opportunity shall consist of a single, informal meeting at
which at least one representative from the regulated community
and at least one representative of the environmental community
are present. Ecology and each delegated local authority shall
provide notice of the preaudit meeting in the Permit Register.
(g) Annual reports. Ecology and each delegated local
authority shall prepare an annual report evaluating its operating
permit program administration. Such report shall include any
findings resulting from the relevant fiscal audits, annual
routine performance audits, annual random individual permit
reviews or periodic extensive performance audits. Ecology shall
submit its annual report to the appropriate standing committees
of the legislature. Each delegated local authority shall submit
its report to its board of directors and to ecology.
[Statutory Authority: Chapter 70.94 RCW. 94-02-041 (Order
93-19), § 173-401-920, filed 12/30/93, effective 1/30/94.]