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# • STATE OF WASHINGTON 

### DEPARTlv\ENT OF ECOLOGY

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## 1997 

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_ I,-' ;**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 ofthe House Washington House ofRepresentatives P.O. Box 40600 Olympia, WA 98604-0600 Dear SenatorMcDonald and SpeakerBallard: 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 certainfederal laws and program requirements. We have determined that this conflict cannotbe resolved without losing benefits or authority that have been delegated to the state ofWashingtonby 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 1010passed in 1995, it prohibited state agencies from issuing civil penalties for violations unless: • The.violation was a condition ofapermit,
• Previous enforcement actions had been taken or notice given to the violator. • The problem had not been corrected in a timely manner.
• There exists aprobability ofdeath or bodily harm,
• There exists aprobability ofcausing more than minor environmental harm.
• There exists a probability ofcausing property damage exceeding $1,000.

• The Legislature anticipated that this prohibition might conflictwith 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. UnderRCW 43.05.902, ifa 

# eSen. Dan McDonald Rep. Clyde Ballard Pagetwo December 10, 1997
conflict cannot be resolved without loss ofauthority 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 ofemphasizing 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). 'u 

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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 enforcementdiscretion, 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 indicatedthatour existing program approvals would be 

### injeopardy. Notification to 

### Governor and Legislature We have concluded that this conflict cannot be resolved without loss ofauthority to the state. Therefore, pursuantto 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 

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• 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 ofEcology is disappointed in EPA's decision, since it appears to put bureaucratic process ahead ofenvironmental 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 ofESHB 1010 being "inoperative" is not significant.

. . Ecology will continue with its existing policy ofriotissuing civil penalties for minor, first-time offenses that result in no harm and are not part ofa 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 briefyou on this issue or provide more details. Please call Bill Alkireat 360-407-7003 ifyou have any questions.**~i}fumons**

cc: Governor Gary Locke Joe Dear, Governor's ChiefofStaff Chuck Clarke, EPA Region X Christine Gregoire, Attorney General
•. Attachments