Resource Contact: References: 

### Implementation Network ' 

## Policy 3-1
Effective: 

### November 1989 Revised: 

### June 1997

# ~.



# ,.. I 

# Hazardous Waste and Toxics Reduction Program Compliance' Assurance Policy Purpose: This policyis to be used by Hazardous Waste and Toxics Reduction (HWTR) 

### Program staffto: (a) assure the managementofhazardoussubstances and hazardous wastes in ways that are protective ofhumanhealth and the environment; (b) 

### promote voluntary compliance by persons subject to toxics reductionplanning and hazardous waste management laws and regulations; and, (c) ensurethat enforcement actions are conducted in an effective. fair and consistent manner. 

### Program Philosophy The HWTR Program Will EmphasizeAnApproach That Seeks Voluntary Compliance By the Regulated Community. 

### The HWfR 

### Program expects that businesses and public agencies will operate in compliancewithenvironmental regulations. Our 

### approach to achieving compliance is to offertechnical assistance and informal 

### enforcement to help businesses understand and complywith environmental regulations. This 

### approach is used before resorting to formal 

### enforcementunlessthere is an imminent threat to humanhealth or the environment, or repeated non-compliance with regulations deemed important enough on which to spend limited state resources. In 

### addition,the HWTR 

### Program prefers an approach which places a priority on addressing problems and influencing as manybusinesses as feasible. This will result in 

### a , greater numberofbusinesses correctingviolations that present risks to human health and

the environment. rather than 

### a lesser numberofbusinesses that achieve compliancewith the full 

### range ofregulatoryrequirements. 

### Authority Hazardous Waste ManagementAct, Chapter 70.105 RCW; Dangerous Waste Regulations, Chapter 173-303 WAC; ,Hazardous Waste Fees, Chapter 70.95E RCW;

Pollution Prevention Fees, Chapter 173-305 WAC; Hazardous Waste ReductionAct, Chapter 70.95C RCW; Pollution Prevention Planning Regulations, Chapter 173-307 WAC; Model Tories ControlAct, Chapter 70.105D RCW; Technical Assistance Officers, RCW43.21A.085 

### and.087; TechnicalAssistance Programs, Chapter 43.05 RCW; 

### and DelegatedAuthority from the UnitedStates EnvironmentalProtectionAgency for the Resource Conservation 

### andRecoveryAct (RCRA)


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### /.. "'Policy 3-1: BWTR Program Compliance AssurancePolicy
1. The HWTR Program Will Provide a Consistent Approach in the Implementation of the Hazardous Waste Regulations Throughout the State HWTRProgram staff

### are expectedto treat persons subject to dangerouswaste managementrequirements with equity andfairness. Rule interpretationsand actions

### taken to assure compliance willbe implemented in a similar fashionunder similar circumstances throughout the state. The 

### HWrR Program 

### willcontinueto work with other Ecology entities (for example; Nuclear Waste Program, Industrial Section)to encourage consistentimplementation of waste management requirements at sites outside its responsibility. 

### 2. The HWTR Program, in Carrying Out Compliance Assurance Activities, Will Promote Timely and Effective Communication Among Effected Parties HWTR staffwill seek 

### to maintain open communication with 

### regulated persons. Timely and open communication is one ofthe mosteffective meansHWTR staffhave for achievingenvironmental protection through voluntarycompliance. Opencommunication is preferred in order to 

### minimize continuednon-compliance and gain the most timely and cost effectiveresolution to waste management problems. 

# (0

When violations are cited in writing, the businessoperator 

### willreceiveclear written direction stating how to achievecompliance, deadlines for achieving compliance, sources oftechnical assistance, and means for requestingan extensionofdeadlines.

.

# (c

3. HWTR Program StaffAre Encouraged to Use All of the Available Methods to Best Achieve Voluntary Compliance With Regulatory Requirements and Assure Protection of Human Health and the Environment Availablemethods includetechnicalassistance, informal enforcement, formal enforcement, and criminal referral. Technical assistance - educational and assistance activitiesthat are providedby the HWfR. 

### Program to explainregulatory requirements and help identifymethods of achievingcompliance. Technical assistancemay occur through telephone, written correspondence, publications, and workshops or other public presentations. . Technical assistance also includes on-site visitswhich are requested or voluntarily

accepted by a business. First time visits to a businessby HWTR Program staff

### will typicallybe treated as technical assistancevisits. On-sitetechnical assistance visits may result in informalenforcementactions being taken by the HWTR Program. Current agency policiesimplementing Chapter 43.05 RCWwill 

### be employed to address circumstanceswhere imminent threats to human health and the environment are encountered during technical assistance visits (e.g., Notice ofCorrection, other formal enforcement options). Informal enforcement - actions taken by HWTR Program to address violations which result in relativelyminor threats to human health and the environment and cooperation is --expected-

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### Revised 6/15/97'. I· 

### 'Policy 3-1: BWTR Program Compliance Assurance Policy 

### in achievingcompliance. Informalenforcement actions may include verbal directions or warnings, written letters or checklistswhich constitute a Notice ofCorrection under Chapter 43.05 RCW, and a Notice ofDeficiency for hazardous waste permit applications. Informal enforcementactionwill 

### not result in penaltieswhen a business operator completes necessary actions to complywith regulatory requirements within a reasonable time. 

### They will, 

### however, be considered part ofthe public record for a facility. Fonnal emorcement - based upon on-site compliance inspections, formal enforcement actions may be taken to address imminent threats to human health and the environment and other conditionswhich cause 

### the facility to be classifiedas

### a Significant NonComplier (violationsofpermits or orders, for example). Formal enforcementactions include: administrative orders, consent agreements,judicial actions and civilpenalties. Fonnal enforcementactions may be appealed to the Pollution Control Hearings Board.


# ie



# e Referral for Criminal Investigation- Any person who knowinglytransports, treats, stores, handles, disposes 

### of or exports a hazardous substance in violation ofthe State Hazardous Waste Management Act (see RCW 70.105.085 and .090) may be subject to 

### criminal prosecution. The HWTR Program may refer cases 

### to the CriminalInvestigationDivision (joint 

### EcologylEPA office)for investigationand potential prosecution. HWTR 

### Program staff

### do not conductCriminal 

### investigations. At the request ofthe Criminal Investigation Division, HWTR staff

### may participate as technicaladvisors in certain phases ofcriminal 

### investigationswithinthe scope oftheir civilauthority. ( 

# (2) The BWTR Program Will Classify Violators Based Upon the Degree ofThreat to

.

. Human Health and the Environment and History ofCompliance With the 

### Dangerous

Waste Regulations

. HWTR 

### Program 

### staff' are responsiblefor identifying and prioritizingthe facility responsiblefor violations. Violators are classified based 

### on an 

### analysis ofthe degree of threat presented to humanhealth or the environmentand the facility's overall compliance with the state Dangerous Waste Regulations. 

### This includespriorrecalcitrant behavior or a history ofnon-compliance as documented through Notices ofCorrection, orders, or penalties. Two classes ofviolators are recognized: Significant non-compliers (SNC) - are those facilities which: • have caused actual exposure, or a substantiallikelihood ofexposure, ofhazardous waste or hazardous waste constituents to humans or the environment; or • are chronic or recalcitrant violators; or • have violation(s)which deviate substantially from the conditions ofa permit, order, agreement, or hazardous waste statutory or regulatory requirement. The designation of Significant Non-Complier is intendedto identify those facilities for which formal enforcement is appropriate.·

. 

### Secondaty violators - are those facilities with violations which do not meet the criteria listed for SNCs. Secondaryviolators pose no actual 

### threat or a low potential threat of human 

### or environmental exposure to hazardous waste or constituents. Page 3 

### of9 3-1-3 

### Revised 6/15/97i 

### Jpolicy 3-1: BWTR Program Compliance Assurance Policy

A facility classified as an SV should not have a history ofrecalcitrant or non-compliant conduct. Secondary violators 

### will be afforded the opportunity to achieve voluntary compliance within a reasonable timeperiod. Penalties willnot 

### be assessedagainst secondary violators.



### s. 

### The BWTR Program May Issue Penalties to Address Violations by 

### Significant Noncompliers. In making a determination to issue a penalty and its amount, the HWTR Program 

### will assess the degree ofthreat to human health and the environment, the class of violator, and the discretion factors listed below. a. Discretion Factors The HWTR Program uses discretion to arrive at a reasonable determination based upon the facts and conditions presented by specific cases. Use ofdiscretion most often results in penalties that are lower than would be calculated through strict adherence to classification ofindividual violations and the penalty matrix. Primary factors which enter into the use ofdiscretion include: Degree of Threat to Human Health or the Environment. Actual or substantial likelihood ofexposure to hazardous wastes or hazardous waste constituents should be evaluated using facility specific environmental and exposure 

### information whenever possible. This may include evaluating potential exposure pathways and the mobility and toxicity ofthe hazardous waste being managed. However, it should be noted that environmental impact aloneis sufficient to cause a facility to be a SNC, particularly when the environmental media: affected require special protection (e.g., wetlands or sources ofunderground drinking water). Potential routes ofexposure to the environment should include those to air, soil, surface and ground water.

. History of Compliance. Facilities may be found to be chronic or recalcitrant violators based solely upon prior dangerous waste violations and actions taken by the violator to correct identified problems. The degree ofdeviation from the purposes or requirements ofstatute, regulations, permits, orders or other agreement may be considered. Available Resources. Pursuing penalty actions requires extensive investment ofstate resources to develop, issue and follow through with the action. Unit supervisors or section managers 

### will evaluate available resources and make the decision on whether or not to pursue a penalty. When a decision is made to forego assessment ofa penalty because oflack ofresources, it 

### willbe documented in the facility's enforcement file and the program manager 

### willbe informed. Staffare expected to continue to attempt to achieve compliance through informal or other formal means (e.g., administrative order to address actual or potential threats to human health and the environment), as appropriate. Impact on the Regulated Community. A penalty action may influence the behavior of i others in the regulated community by serving as an incentive for maintaining their 

### I

_--**~QIlJpJl3J]~_~** The degree to which a penalty may influence compliance by the broader

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### i.Policy 3-1: HWTR Program Compliance Assurance Policy



# ,'.

i 

### regulated community may be considered in makinga decisionto adjust the amount ofa penalty. 

### SmallBusinessIncentives. On a federal level,EPA attempts to promote environmental . complianceby 

### small businessesthrough a policythat allows for reduced or eliminated

penaltieswhen 

### certain criteria are met 

### ("Interim Policyon Compliance Incentives fOT 

### SmallBusiness, Fact Sheet", June 

### 26, 

### 1995). The HWTR 

### Program recognizes that a reduced penalty for a smallbusinessmay serve the same level ofincentivefor compliance as a larger penalty assessed to a mediumor large business. For the purposes ofthis policy a smallbusiness is defined as a person, corporation, partnership, or other entity who employs 50 or fewer individualson a company wide basis. 1 

### HWfR 

### staff may consider a reduction or eliminationofa penalty when the SNC qualifies as a smallbusiness and all ofthe following criteria are met: • first violation. The business was not subjectto previous direction through a Notice of Correction or other formal enforcement action for violation ofthat requirement in the past five years; • no significant actual harm. The violation has 

### not resulted in actual serious harm to human health, public safety, or the environment; • corrective action in a timely manner. Steps are taken within a reasonable time by the business to achievecompliance and correct potential threats to humanhealth or the environment. • the violation does not involve criminalconduct. In 

### utilizingthis discretion factor, penalties may be reduced no more than 

### one level, per violation, as displayed in Table 1 

### (e.g., major may be reduced to medium,medium to minor, minor to zero). 

### Public entities(e.g., local, state or federal agencies) are expected 

### to complywith the requirementsofthe

### Dangerous Waste Regulations. Normal inspection methods 

### will be employed(unannounced inspections, for example). Consistent with this policy and applicable agency policies, the HWTR 

### Program 

### will take appropriate informal and formal enforcementactions to assure compliance. When 

### a public entity is found to be a significant non-complierwith major violations, formal action must be considered. Consent orders are the preferred formal vehicle and should be used when it is preferred by the recipient and compliance

### willbe achieved in as early a timeframe 

### aspossible. 

### Ifthe recipientdoes not respond to the proposed consent action or negotiations are not completed in a timelymanner, a unilateral action and/or penalty should be 

### issued.
b. Determination ofPenalty Amounts 

### TheHWTR 

### Program may, under the authority ofRCW 70.105.080 and .095, issue a 

### civil penaltyfor violationofthe State Hazardous Waste Management Act, 

### Dangerous Waste Regulations, or administrative order. Penalties may not exceed S10,000 per day for each violation cited. The amount ofa penalty will be determined by classifying the violator.

1 Source: Regu!atoryFaimess Act, RCW 19.85. 

### Page 5 of9 3-1-5 Revised 6/15/97,.... .,

j.**~Policy** 3-1: HWTR Program Compliance Assurance Policy
reviewing specific violations, evaluating discretion factors and enforcement examples. The Environmental Protection Agency (EPA) has developed detailed guidance for establishing penalty amounts in theirRCRA CivilPenaltyPolicy, dated October 1990. The HWTR Program has modified EPA's approach, however, the guidance provided by EPA is generally applicable and should be used to provide additional assistance when 

### necessary. Each violation 

### will be determined to be major, moderate, or minor based upon the seriousness ofthe violation

.. The discretion factors ofSection 5.a. 

### will be considered when selecting a penalty amount from the ranges given for each category in Table 1, below. A penalty can be assessed for each violation, groups ofviolations, or on a per day basis. As a 

### final step, staff should evaluate the total penalty amount proposed in light of the nature ofthe individual violations to assure a fair and equitable penalty. 

### A. Major Violations

- in order to be classified as a major violation, the situation must pass the first criteria listed under this category (i.e., present actual harm).

• Actions which present an actual or imminent threat to human health or the environment.

• Actions which significantly deviate from regulatory or statutory requirements such. that most (or the important aspects) ofthe requirements are not being met; or,

• Actions which are a repetition or continuation ofmoderate violations or noncompliance with formal enforcement action in response to moderate violations.
B. Moderate Violations - in order to be classified as a moderate violation, the situation must pass the first criteria listed under this**cate~ory** (i.e., exhibit potential impact).

• Actions that have potential to impact human health or the environment.

• Actions which deviate from regulatory or statutory requirements but some ofthe requirements are being implemented as intended; or,

• Actions which are a repetition or continuation ofminor violations or non-compliance with formal enforcement action in response to moderate violations.
C. Minor Violations

• Actions ofan administrative nature that have little or no potential to impact human health or the environment; or, Actions which deviate somewhat from regulatory or statutory requirements but most (or all ofthe important aspects) ofthe requirements are being met.
Table 1. Determination ofPenalty Amount Cate20ry Penalty Ranee

Major $6,000

- $10,000 Moderate $3,000

- $6,000

Minor $500

- $3,000 

# (0

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----- ----- Once a penalty recommendation is made, program managers 

### will review and approve the 

## (0._ recommendation prior to issuance. Page60f9 3-1-6 -Revised 

### 6/15197- -. - - --w r

j 

### t'olicy 3-1: HWTR Program Compliance Assurance Policy 

### (... 6. When settlement of a penalty is sought and agreed to by the HWTR Program and person against whom a penalty has been issued, the program will encourage the use of innovative settlements. In developing an agreement that includes innovative settlements, the program 

### willadhere to agency policies and guidelines. Preference 

### willbe given to projects that: result in benefit to the environmental media impacted by the violation; haveknown economic value; have no or 

### minimal economic benefit for the violator; do not repeat a previous project or activity; do not result in something already required by law, permit or order; promote long term compliance with environmental regulations; provide adequate documentation; and, include some degree ofmonetary penalty being paid.



### 7. The BWTR Program may issue administrative orders requiring compliance either immediately or within a specified time period, as necessary, to address Significant NonCompliers. When a Significant Non-Complier fails to perform as directed in an administrative order, they areliable for civil penalties.



# • RCW 70.105.095 grants authority and describes circumstances for issuing administrative orders. These circumstances are further modified by procedural requirements ofRCW 43.05. Administrative orders are used to direct a violator to take a specified course of action within a specified time period to achieve compliance. The HWTR Program uses several types ofadministrative orders, but they may be categorized in two general groups; a) unilateral, and, 

## b) negotiated. Unilateral orders are issued without consultation with the violator. The conditions, time periods, and other stipulations ofa negotiated order are discussed and agreed to between the HWTR Program and the violator. Unilateral orders are subject to appeal to the Pollution Control Hearings Board. Negotiated orders typically, as a condition ofthe order, are not subject to appeal.



### 8. The BWTR Program will take compliance assurance actions in a timely manner. Persons found to be in violation will be given a reasonable time to correct deficiencies•. Imminent threats to public health and the environment will be addressed immediately. Timely response by the HWTR. Program is critical to assuring compliance with regulatory requirements, averting or correcting threats to public health and the environment and maintaining good working relationships with regulated businesses. The timing ofa response 

### willvary depending upon the type ofaction being taken by the HWTR Program. In general, technical assistance and informal enforcement responses 

### will be issued within 30 days ofthe determination ofa violation.

. Persons found in violation ofregulatory requirements 

### will be given a reasonable time to correct deficiencies. "Reasonable time" 

### will be determined by considering the type of violation, and degree ofthreat to human health and the environment. Business practices (e.g., financing, acquiring supplies, installing equipment, hiring consultants or contractors) may be considered, but 

### willnot be the sole factor in determining "reasonable time," especiallywhen conditions exist which present an imminent threat to human health and the environment. Whenever practical, all actions issued should require compliance by the Page 7 of9 3-1-7 Revised 6/15/97i· "Policy 3-1: HWTR Program Compliance Assurance Policy
violator within 90 days ofthe action. Deviations from this schedule may be necessary when substantial on-site construction is needed. Formal enforcement responses may take longer to prepare, communicate and execute. Whenever practical, all formal enforcement actions should be issued within 90 days ofthe determination ofa violation (e.g., actual or inuninent threat) or the deadline(s) achieving compliance (e.g., Notice ofCorrection, Administrative Order). In establishing the 90 day standard, however, it is recognized that certain complex investigations and availabilityof state resources may require a longer period to develop the appropriate formal enforcement response. In these cases, up to 180 days 

### willbe allowed prior to issuance of the action. The HWTR. Program 

### willmake every attempt to issue formal enforcement actions within 90 days ofthe determination ofviolation. Should the 90 day period be exceeded, the lead 

### HWTR 

### staffperson 

### willrefer the proposed action to the appropriate manager for a decision to proceed, delay, or cancel it. 

### 9. Pollution prevention planning and assistance programs will be implemented solely through assistance and informal enforcement to achieve voluntary compliance by affected . persons. The HWTRProgram's pollution prevention activities are focused to a large degree on the requirement for generators ofhazardous wastes, whose generation amounts exceed the thresholds specified in statute and regulation, to prepare pollution prevention plans and annual progress reports. Toxics Reduction staffshall pursue compliance with this requirement solely through technical assistance and informal means (letters listing deficiencies, for example). Implementation ofpollution prevention opportunities by planners is voluntary. Pursuance offormal enforcement for missing planning or reporting deadlines would not foster an atmosphere conducive to voluntary implementation. This strategy also allows HWTRto use its limited resources providing technical support to those planners who are seriously working toward implementation ofpollution prevention measures. 

### 10. The HWTR Program will, when conducting Corrective Action activities, closelyfollow the policies and procedures established by the Toxies Cleanup Program to implement the Model Toxies Control Act and regulations. The HWTR Program implements the RCRA Corrective Actionprogram for cleanup of contamination at hazardous waste treatment, storage and disposal facilities using authorities under the State Model Toxics Control Act and regulations. Specific policies and procedures governing Corrective Action have been adopted by the 

### HWTRProgram. Provisions for corrective action at specific facilities are incorporated into an operating permit or through administrative orders (negotiated or unilateral).

. 

# .: \



# o ( .•...

;------ -- - - - Activities conducted by the HWTR Program to implement Corrective Action 

### will emphasize a cooperative approach with potentially liable persons. Agreed orders, consent
Page 

### 8 of9 3-1-8 Revised 6/15/97

### 'Policy 3-1: HWTR Program Compliance Assurance Policy q ,. ...

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(

# ....

,

# .•

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# ;. decrees, andunilateral actions

### will be employed, as necessary, consistentwith existing policies andprocedures. l



### Page 9 of9 3-1-9 Revised 6/15/97