# • STATE OF WASHINGTON 

### DEPARTMENT OF ECOLOGY P.O. Box 47600 • Olympia, Washington 98504-7600 (360) 407-6000 • TDD Only (Hearing Impaired) (360) 407-6006 June 12, 1998 

### RECEIVED
Mike Bussell EPA Region 10 1200 Sixth Avenue WCM-127 Seattle, WA 98101-9797 

## JUN 1 6 1998
OFFICE OF WASTE

& CHEM. MGMT.



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• RE: Compliance Assurance Policy Update 

### DearrUssell:

# ~,,,,,, The purpose ofthis letteris to notify you that the HWTRProgram intends to update the Compliance Assurance Policy (CAP), dated June 19, 1997, during FY 1999
.. This is in accordance with my earliermemo entitled, "The Application ofRCW 43.05 (HBI0I0) to our Work," and a second memo to Ecology Field Stafffrom four Program Managers entitled, "Conflicts between Federally Delegated/Authorized Programs and Regulatory ReformlRCW 43.05 (HBI0I0)." Both memos are dated February 5, 1998. The purpose ofthe earliermemorandums was to let staffknow that certain sections of Chapter43.05 RCW, Technical Assistance Programs, had become inoperative due to conflicts with federal law where EPA did not considerEcology to have adequate enforcement ability to issue penalties for any hazardous waste violation. As you know, EPA and Ecology have agreed that HB1010 does not apply in cases where it may conflict with federally delegatedprograms, such as RCRA. We are currently operating this way now, and Ecology will revise its CAP to say, "Penalties may be assessed against secondary violators, in accordance with federal authority". Ecology staffwill

## use their enforcement discretion on secondary violators. This letter and the two previous memorandums will serve as guidance until the CAP is updated. Timing ofthe CAP update will be negotiated as part ofthe FY99 Performance Partnership Agreement.

# s~~ Greg Sorlie, Manager Hazardous Waste and Toxics Reduction Program GS:nh 

# o

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• DEPARTMENT OF ECOLOGY
February 5, 1998

TO: All HWTR Staff FROM:· Greg Sorlie, Manager SUBJECT: The Application ofRCW 43.05 (HB 1010) to our Work As you have recently heard, via the cover memo from the four program managers, the agency has had to make inoperative certain sections ofRCW 43.05, Technical Assistance Programs. This is the law, which codified certain field visit provisions ofESHB 1010. Those sections made inactive deal with the ability to immediately penalize businesses for certain violations. This was due to perceived conflicts with federal law, and wasjeopardizing our authorization ofour Dangerous Waste Program. As a result, Ecology has notified the Legislature, EPA, and the Governor, that we have made those sections inoperative for those federally delegated programs. We have also stated our intent to remain true to the intent of the legislation. EPA is only concerned that law prohibits us, not by policy. What does this mean to you? Very little in the way ofwhat enforcement we will

. take. However, you should be aware ofwhat this means to implementation of .field visits. The HWTR Program has two major types ofvisits, which we provide to our clients: Visits aimed**~t** complying with the Dangerous Waste regulations and visits aimed at providing PollutionPrevention information. Although we haveworked at integrating these two disciplines in our program, each staffshould have a good idea ofthe goal ofthe visit priorto entering the business. Dangerous Waste Compliance Visits Our Dangerous Waste regulations have been submitted to fulfill the requirements offederal authorization ofthe Hazardous Waste Program. The state components ofthe program are intertwined into the federal components suchthat we do not separate them for purposes ofauthorization, and will not for the purpose of determining when and ifRCW 43.05.040.050.060(3) and .070 applies. This means that ifwe view significantviolations during a Dangerous Waste Compliance visit, we can legally, now, go directly to penalty without worrying whether these criteriahave completely been met. We have rarely issued an /

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• The Application ofRCW 43.05 (HB 1010) to our Work February 5, 1998 Page 2 enforcement action after the first compliance visit, and we as an agency have committed to continue with the intent ofthe technical assistance law. We need to ensure that we not confuse businesses or ourselves by the way we implement our field visits. We should make sure that in our representation of these visits we do not assert that we will not be able to penalize by law. If explanation is asked ofwhen an enforcement action could result, you can still use the criteria quoted in RCW 43.05.070 as general criteriaused. Obviously, we should not call our Dangerous Waste visits "technical assistance visits", and documentation resulting from such visits should not reference this law. 

### Business Assistance Visits Pollutionprevention visits stem from a state law RCW 70.95, which is not associated with a federally delegated program. Our program has previously determined that RCW 43.05 did not apply to pollution prevention visits because ofthe provisions ofthat law which make such visits enforcement ineligible. RCW 70.95 specifies criteria where violations viewed during these visits could be referred to compliance stafffor possible enforcement. In the past we have called such visits Business Assistance visits, and have not been constrained by RCW 43.05, because our intent is not to ever issue an enforcement action directly as the result ofsuch a visit. It is our intent to continuewith this philosophy. To the extent appropriate for each visit, we should look closelyatthe information needs specified in RCW 43.05.060, because these are common-sense information items that businesses would be interested in. Again, we should not represent our "PollutionPrevention Visits" as "Technical Assistance Visits", since that may confuse a few well-informed businesses. Should such abusiness inquire how we
. are implementing RCW 43.05, we should state that our intent is that such visits not be eligible for enforcement and therefore we are implementingRCW 70.95's provisions instead. 

### OtherField VisitTypes Our program has worked hard to provide a range ofservices to the public such as, Increased Generator Contact, Single Industry Campaigns, and Joint TR and Compliance visits. How does the recent changes in the law apply to these? The intent ofthe visit should be clear priorto undertaking such a visit. Ifthe intent is to provide assistance under RCW 70.95, we will perform these as Business Assistance visits. All staffare eligible to perform business assistance visits, not justToxics Reduction staff. Ifthe aim is to provide enforcement eligible'

. compliance assistance, then we will provide them as ifthey are compliance visits.

Certain staffmay be precluded from making Compliance visits due to designation as Technical Assistance Officers under RCW 70.95. I I .1

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• The Application ofRCW 43.05 (HB 1010) to our Work February 5, 1998 Page 3 

### Requested RCW 43.05 Visits We shotild go ahead and conductrequested visits if: 1. Requested 

### in advance; and, 2. We agree they are appropriate/make sense/aren't a problem facility or under current investigation. We might wish to explain that we have a range ofvisits we offer 

### in the HWTRProgram and the benefits ofeach, and then let businesses decide for themselves. Ifyou have any questions regarding the above, please talk to your supervisor. Should they remain unresolved, please refer them to the ImplementationNetwork for discussion so that we can resolve them with the HWTR Management Team. GS:nhFebruary 5, 1998 

# • TO: FROM: 

### RE: Ecology Field Staff Greg Sorlie, Joe Williams, Megan White, Mary Burg Conflicts between Federally Delegated/AuthorizedPrograms and Regulatory ReformlRCW 43.05 (HB 1010)



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• We would like to inform you ofactions taken by Ecology and EPA regarding HB 1010, the Regulatory Reform Act. EPA recently notified Ecology that conflicts existed with federally delegated and authorized programs due to sections ofHB 1010 which prevent Ecology from being able to immediately issue penalties for certain violations. EPA. determined that those conflicts werejeopardizing our federally authorized and delegated programs. As a result, we have notifiedthe legislature that, according to provision 43.05.901 ofthat same act, we have made inoperative those conflicting sections for the affected programs. We have also voiced our intentto still adhere to the spirit ofthis legislation. Which laws are affected? Programs or laws affected are: Clean Water Act, UndergroundInjection Control Program, Underground Storage TankProgram, Hazardous Waste Program and seven Air Quality Programs (Title 5, Maximum-achievable-control technical standards, national

. emission standards, state implementation plans, new-source performance standards,

prevention ofsignificant deterioration, and new-source review). Only the federally authorized portions ofthese programs are affected. Any otherprogram or law not mentioned above is still 

### subjectto the full extent ofthe law. How does this impactyou? Penalties In essence, this will make little change in the number or focus ofour enforcement actions. Although we now have authority to issue penalties when ESHB 1010 would otherwise' have precluded it, in practice this should not happen often. The limits in ESHB 1010 on the issuance ofpenalties are very similarto Ecology's EnforcementPolicies. Therefore, it is our intent to continue to considerthe criteria mentioned in RCW 43.05.050 and .070 when considering whether an enforcement action appropriate. These criteria are: • The violation was a condition ofapermit
• Previousenforcement actions had been taken or notice given to the violator
• -The problem had not been corrected in a timely manner • There exists a probability ofdeath or bodily harm • There exists aprobability ofcausing, more than minor environmental harm
• 'There exists a probability ofcausing property damage exceeding $1,000

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• Ifyou believe one ofthese criteria applies, you should not let questions about whether sufficient evidence exists to prove it stand in the way ofissuing apenalty. We will need to change our Compliance AssuranceManual to reflect when HB 1010 (RflW 43.05) applies, when we formalize our Performance Partnership Agreements with EPA later this year. Until then, this guidance will have to suffice. _' Technical ASsistance .This decision does not affectEcology's ability to provide technical assistance. ESHB

1010's requirement that Ecology develop technical assistance programs is stili in effect. Each affected program may want to review the implementation issues ofour and EPA's recent determination. For site visits resulting from federally authorized or delegated programs, we may need to review howwe represent our visits and the resulting documentation. However, we wish to clarify that it is Ecology's intentto not change our basic approachto enforcement. The common-senseapproach shouldbe followed to allow us to use our limited enforcementresources in the most environmentally effective fashion. We have been impressed with Ecology staff's use ofenforcement discretion and . expect we will continueto use it .