Resource Contact:

References:

Implementation Network '

Policy 3-1

Effective: November 1989

Revised: June 1997

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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 ofhuman health 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 Emphasize An Approach That Seeks Voluntary Compliance

By the Regulated Community. The HWfR Program expects that businesses and public

agencies will operate in compliancewith environmental regulations. Our approach to

achieving compliance is to offer technical 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 number ofbusinesses correctingviolations that present risks to human health and

the environment. rather than a lesser numberofbusinesses that achieve compliancewith

the full range ofregulatory requirements.

Authority

Hazardous Waste Management Act, 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 Reduction Act, Chapter 70.95C RCW;

Pollution Prevention Planning Regulations, Chapter 173-307 WAC;

Model Tories Control Act, Chapter 70.105D RCW;

Technical Assistance Officers, RCW43.21A.085 and .087;

Technical Assistance Programs, Chapter 43.05 RCW; and

DelegatedAuthorityfrom the United States Environmental Protection Agencyfor the

Resource Conservation andRecovery Act (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 staffare expectedto treat personssubject to dangerouswaste

management requirements with equity andfairness. Rule interpretationsand actionstaken

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 most effective meansHWTR staffhave for

achievingenvironmental protection through voluntarycompliance. Open communication

is preferred in order to minimize continued non-compliance and gain the most timely and

cost effectiveresolution to waste management problems.

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When violations are cited in writing, the businessoperator willreceiveclear written

direction stating how to achieve compliance, deadlines for achieving compliance, sources

oftechnical assistance, and means for requestingan extensionof deadlines. .(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 includetechnical assistance, 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 staffwill

typicallybe treated as technical assistancevisits. On-site technical 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

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'. I· 'Policy 3-1: BWTR Program Compliance Assurance Policy

in achievingcompliance. Informal enforcement 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 enforcementaction will 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 classifiedasa 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.

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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

staffdo not conductCriminal investigations. At the request ofthe Criminal Investigation

Division,HWTR staffmay participate as technicaladvisorsin certain phases ofcriminal

investigationswithinthe scope oftheir civilauthority.

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(2) The BWTR Program Will Classify Violators Based Upon the Degree of Threat 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 includes prior recalcitrant 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 ofSignificant Non-Complier is intended to identify thosefacilitiesfor

whichformal 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.

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i 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 time period. Penalties will not be assessed against

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 ofThreat to Human Health or the Environment. Actual or substantial likelihood

of exposure 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

alone is 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 of exposure to the environment should include those to

air, soil, surface and ground water. .

History ofCompliance. 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 will be documented in the facility's enforcement file and

the program manager will be 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

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

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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 IncentivesfOT

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 eliminationof a 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 human health 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

enforcement actionsto 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 compliancewillbe achieved in as early a timeframe as possible. 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 violation ofthe 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.

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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 their RCRA Civil Penalty Policy, 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, staffshould 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 of an 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 of Penalty Amount

Cate20ry Penalty Ranee

Major $6,000 - $10,000

Moderate $3,000 - $6,000

Minor $500 - $3,000

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Once a penalty recommendation is made, program managers will review and approve the (0._

recommendation prior to issuance.

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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 will adhere

to agency policies and guidelines. Preference willbe given to projects that: result in

benefit to the environmental media impacted by the violation; have known 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 are liable for civil penalties.

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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 of a 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 will vary depending upon the type of action being taken by the HWTR Program.

In general, technical assistance and informal enforcement responses will be issued within

30 days ofthe determination of a 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,"

especially when conditions exist which present an imminent threat to human health and

the environment. Whenever practical, all actions issued should require compliance by the

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i· "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 availability of

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 staff person 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 HWTR to

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 Action program 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). .

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Activities conducted by the HWTR Program to implement Corrective Action will

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

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'Policy 3-1: HWTR Program Compliance Assurance Policy

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decrees, and unilateral actionswill be employed, as necessary, consistentwith existing

policies and procedures. l

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