• 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 letter is to notify you that the HWTR Program intends to update the

Compliance Assurance Policy (CAP), dated June 19, 1997, during FY 1999.. This is in

accordance with my earlier memo 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 earlier memorandums was to let staff know that certain sections of

Chapter 43.05 RCW, Technical Assistance Programs, had become inoperative due to

conflicts with federal law where EPA did not consider Ecology 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 delegated programs, 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

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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 was jeopardizing our authorization of our 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 of what enforcement we will

. take. However, you should be aware of what this means to implementation of

.field visits. The HWTR Program has two major types of visits, which we provide

to our clients: Visits aimed ~t complying with the Dangerous Waste regulations

and visits aimed at providing Pollution Prevention information. Although we

have worked at integrating these two disciplines in our program, each staffshould

have a good idea ofthe goal ofthe visit prior to 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 such that we do not

separate them for purposes of authorization, and will not for the purpose of

determining when and ifRCW 43.05.040.050.060(3) and .070 applies. This

means that if we view significant violations during a Dangerous Waste

Compliance visit, we can legally, now, go directly to penalty without worrying

whether these criteria have 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 criteria used. 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

Pollution prevention 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 staff for 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 continue with this philosophy. To the

extent appropriate for each visit, we should look closelyat the 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

"Pollution Prevention Visits" as "Technical Assistance Visits", since that may

confuse a few well-informed businesses. Should such a business 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.

Other Field Visit Types

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 prior to undertaking such a visit. Ifthe intent is

to provide assistance under RCW 70.95, we will perform these as Business

Assistance visits. All staff are eligible to perform business assistance visits, not

just Toxics 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.

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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 conduct requested 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 of visits

we offer in the HWTR Program and the benefits of each, and then let

businesses decide for themselves.

If you have any questions regarding the above, please talk to your supervisor.

Should they remain unresolved, please refer them to the Implementation Network

for discussion so that we can resolve them with the HWTR Management Team.

GS:nh
February 5, 1998

• TO:

FROM:

RE:

Ecology Field Staff

Greg Sorlie, Joe Williams, Megan White, Mary Burg

Conflicts between Federally Delegated/Authorized Programs and

Regulatory ReformlRCW 43.05 (HB 1010)

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We would like to inform you of actions 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 were jeopardizing our federally authorized and delegated

programs. As a result, we have notified the 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 intent to still adhere to the spirit ofthis

legislation.

Which laws are affected?

Programs or laws affected are: Clean Water Act, Underground Injection Control

Program, Underground Storage Tank Program, 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 other program or law not

mentioned above is still subjectto the full extent ofthe law.

How does this impact you?

Penalties

In essence, this will make little change in the number or focus of our 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 of penalties are very similar to Ecology's Enforcement Policies. Therefore,

it is our intent to continue to consider the criteria mentioned in RCW 43.05.050 and .070

when considering whether an enforcement action appropriate. These criteria are:

• The violation was a condition of a permit

• 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 of death or bodily harm

• There exists a probability of causing, more than minor environmental harm

• 'There exists a probability of causing property damage exceeding $1,000
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If you believe one ofthese criteria applies, you should not let questions about whether

sufficient evidence exists to prove it stand in the way ofissuing a penalty. We will need

to change our Compliance Assurance Manual 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 affect Ecology'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 of our 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 intent to not change our

basic approach to enforcement. The common-sense approach should be followed to

allow us to use our limited enforcement resources in the most environmentally effective

fashion. We have been impressed with Ecology staff's use of enforcement discretion and

. expect we will continue to use it .