, .

• STATE OF WASHINGTON

DEPARTlv\ENT OF ECOLOGY

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; L!';iT=rCRf'!CJ~ENE':ML'S OFFICE : :c:ICg'1 OIV. . Lacey

P.O. Box 47600 • Olympia. Washington 98504-7600

(360) 407·6000 • ·TDD Only (Hearing Impaired) (360) 407.6006

December 10, 1997

.The Honorable

Dan McDonald, Senate Majority Leader

Washington State Senate

P.O. Box 40482

Olympia, WA 98604-0482

The Honorable

Clyde Ballard, Speaker of the House

Washington House ofRepresentatives

P.O. Box 40600

Olympia, WA 98604-0600

Dear Senator McDonald and Speaker Ballard:

In accordance with RCW 43.05.902, I am formally notifying you that aconflict exists with the

Regulatory Reform Act of 1995 (ESHB 1010) and certain federal laws and program

requirements. We have determined that this conflict cannot be resolved without losing benefits

or authority that have been delegated to the state of Washington by the federal government. As a

result ofthis determination, sections 605, 606, 607(3) and 608 ofESim 1010 (prohibiting state

agencies from issuing civil penalties) will not apply in certain instances.

Background

When ESHB 1010 passed in 1995, it prohibited state agencies from issuing civil penalties for

violations unless:

• The.violation was a condition of a permit,

• Previous enforcement 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.

• The Legislature anticipated that this prohibition might conflict with federal requirements and

jeopardize the state's ability to implement federal programs. To avoid this, a process for

identifying and resolving such conflicts was added to ESHB 1010. Under RCW 43.05.902, if a

e
Sen. Dan McDonald

Rep. Clyde Ballard

Page two

December 10, 1997

conflict cannot be resolved without loss of authority to the state, ESHB 1010 does not apply (to

the extent ofthe conflict) -- and Ecology must notify the Governor and legislative leaders.

In June 1997, the Environmental Protection Agency (EPA) asked Ecology to review ESHB 1010

. to determine ifthere was a conflict with federal laws and programs delegated to the state. We

completed that review with the assistance ofthe state Attorney General's office and responded to

EPA in September 1997 indicating that there may be a technical conflict with some provisions of

federal law (specifically, provisions calling for states to have authority to issue fines in all

instances). However, we also noted that the conflict has no significant effect on how Ecology

enforces the federal programs, since we have a long-standing policy of emphasizing technical

assistance and education over enforcement penalties. We also indicated that we believe EPA has

discretion under federal law in deciding whether or not to withdraw program authority from

Ecology (see enclosed letters from EPA and response from Ecology).

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EPA position

On November' 20, 1997, EPA informed Ecology that a conflict does, in fact, exist. Even though

ESHB 1010 may not change how we implement federal programs or how we use our C

enforcement discretion, the state must, nevertheless, have the authority to be able to issue civil

penalties in every single case (see attached letter from ,Chuck Clarke, EPA Region X). Unless,

Ecology resolves this conflict formally, EPA will not approve new programs or amendments to

existing programs delegated to the state. (Requests for approval are pending for federally .

delegated hazardous-waste and air-quality programs.) EPA also indicated thatour existing

program approvals would be in jeopardy.

Notification to Governor and Legislature

We have concluded that this conflict cannot be resolved without loss of authority to the state.

Therefore, pursuant to RCW 43.05.902, the civil penalty provisions ofESHB 1010 referred

above will not apply to the following 10 federally delegated programs:

• Clean Water Act Program

• Underground Storage Tank Program

• Hazardous-Waste Program

• Seven Air-Quality Programs (Title 5, rnaximum-achievable-control technical standards,

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

prevention ofsignificant deterioration, and new-source review) ,

However, we will continue to emphasize technical assistance over enforcement within these

programs. In addition, EPA's decision does not affect the following programs, which include C

penalty authority:'
•

•

•

Sen. Dan McDonald

Rep. Clyde Ballard

Page three

December 10, 1997

• .Water Resources

• Shorelands

•. Spill Prevention, Preparedness & Response

For these programs, the requirements ofESHB 1010 will continue to be in effect.

Conclusion

The Department of Ecology is disappointed in EPA's decision, since it appears to put

bureaucratic process ahead of environmental results and common-sense compliance. In recent

years, we have gone to great effort to work more cooperatively with businesses to improve their

compliance, resulting in a less adversarial relationship while also improving environmental .

protection. We value the progress we have made and do not anticipate changing our approach

despite EPA's decision.

Therefore, we believe that the effect of ESHB 1010 being "inoperative" is not significant. . .

Ecology will continue with its existing policy ofriot issuing civil penalties for minor, first-time

offenses that result in no harm and are not part of a permit. TIlls common-sense approach allows

us to focus on more-important environmental problems and more wisely manage our staff

resources.

I hope this explanation has been helpful. We are available to brief you on this issue or provide

more details. Please call Bill Alkireat 360-407-7003 if you have any questions.

~i}fumons

cc: Governor Gary Locke

Joe Dear, Governor's Chief of Staff

Chuck Clarke, EPA Region X

Christine Gregoire, Attorney General

•. Attachments