POL 3-23:

1. Purpose

;-/riOO}O :.1?fLf

Hazardous Waste Program Enforcement

Guidelines

This enforcement guideline is to be used as a tool by hazardous waste program staff to aid in

their decision-making process. The guideline will help ensure that acts of non-compliance

with Chapters 70.105 and 70.105A RCW and Chapter 173-303 WAC will be handled in a

logical, fair, and effective manner. This Hazardous Waste Program guideline in conjunction

with Ecology's Enforcement Guidelines and Enforcement Policy delineates the Program's

enforcement authority and provides internal operating guidance for determining categories of

violations and the associated timely and appropriate enforcement response.

2. Authority

Under the provisions of RCW 70.105.080, and .095, Ecology has been given the authority to

take enforcement action against any violator of the state's dangerous waste laws and

regulations. This authority includes the ability to require compliance with the regulations

and impose penalties for noncompliance with orders up to a maximum of $10,000 per day of

non-compliance per violation; In no case should other enforcement authority be substituted

when the violation is clearly a dangerous waste violation. Provision is also made for appeal .

of departmental actions to the Pollution Control Hearings Board by the directly affected

party.

RCW 70.105.090 makes certain violations gross misdemeanors and provides for criminal

sanctions. Additionally, Section 15 of Initiative 97 amended Chapter 70.105 RCW to

provide for strict liability for knowing endangerment of persons or property and such

offenses constitute a felony.

Under the authority of Chapter 70.1 05A RCW, the Department may also assess civil

penalties up to $500 per day for failure to pay dangerous waste management fees assessed by

the department.

The United States Environmental Protection Agency (EPA) has authorized the Department of

Ecology primary responsibility for administering the RCRA program. Administration

includes enforcement of the program. Inter-agency agreements are periodically developed to

further outline respective roles and responsibilities.

3. Operatine Guidance

This guidance specifies that hazardous waste staff first evaluate and classify the violation(s)

irrespective of any other circumstances which may exist and then review and evaluate

discretion factors, enforcement examples, and EPA High Priority Violator (hpv) criteria to

determine an appropriate enforcement response.

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a. Violation Categories

Each instance of non-compliance will be categorized depending upon the seriousness

of the violation. Violations will be classified as Class I or Class II. Class I viola- 0

tions .are those which either result, or could result in an imminent threat to human

health andlor the environment. Class 1violations are instances of non-compliance

which could result in a failure to: (I) ensure dangerous waste is destined for and

delivered to an authorized treatment, storage, or"disposal facility (TSD); (2) prevent

releases of hazardous waste or constituents during the active life or any post-closure

period of the business's operation; (3) ensure early detection of releases; or (4)

perform emergency cleanup operation or other corrective action for releases. Class n

violations encompass all violations which would not be considered Class I. They are

general violations of an administrative nature or lesser environmental hazard.

Appendix A provides examples of Class I and Class II violations.

b. Discretion Factors

Once violations have been classified, discretion factors are considered to assist with

the determination of appropriate enforcement response. Discretion factors for

consideration are: Information relative to congressional or legislative requirements,

the risk posed by the waste, severity of violation, the violators compliance history,

available agency resources,and the impact that any action would have on the

regulated community.

Environmental/Health Risk

To evaluate the risk posed by the waste, hazardous waste staff should address

questions of the following nature: What is the quantity of waste? What is the

toxicity, persistence, or carcinogenicity of the waste? What is the potential for

release and migration from the site or exposure to humans? How much of a threat or

potential threat to human health or the environment would be posed by this waste (and

the violation)?

Compliance Histor;y/De~ree of Cooperation

Enforcement personnel should evaluate the violator's compliance history, i.e., has-the

violator had a record of non-compliance which could be characterized as chronic or

recalcitrant? In addition, enforcement personnel should examine the action(s) the

violator has taken to either correct or aggravate the situation. Of primary importance

is, What is the degree of care demonstrated by the owner/operator? Other Questions

to consider are: Has the entity been informed about the regulatory requirement?

(Note: information may have been presented in an educational format, assistance

from Ecology, or in the form of past enforcement action.) Has the violator complied

with prior enforcement actions? How quickly did the violator respond to correcting

violations noted either during or prior to the inspection? and what financial incentives

exist (or existed) to encourage the violations?

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Resources

Evaluation of available department resources must be done in consultation with

management. Any recommendation to limit an enforcement response should be done

with supervisory consultation. Supervisors are responsible for apprising the Program

Manager if resource constraints are significantly impacting their ability to implement

this guidance.

Impact on the Re2ulated Community

Hazardous waste staff must evaluate the impact a particular action would have on both

the violator and the regulated community. Personnel must question whether an

enforcement action would bring about a behavioral change on both the violator and

the regulated community. Staff should question whether a particular enforcement

action would act as a deterrent against improper action by the regulated community.

(Note: this evaluation need not be done in every action, but should be raised

occasionally for discussion with management.)

c. High Priority Violators (hpv)

The hpv designation was developed by the EPA. Hazardous Waste Program staff will

consider the hpv designation in developing enforcement cases because (1) EPA will

consider our treatment of hpv during annual RCRA authorization review, and (2) hpv

.information is necessary for RCRIS data entry. The EPA's concern is that Ecology

treat all hpvs in a consistent manner. While this does not mean that all hpvs should

receive identical penalties, it does mean that some type of formal enforcement should

be initiated against them. Those hpvs with the most significant violations should

receive the most stringent enforcement response. High Priority Violators are defined

by the following criteria:

• Has caused exposure of dangerous waste or dangerous waste constituents to

humans or the environment; or

• Is a chronic or recalcitrant violator. Violators who have been found to nave

numerous Class I or Class II violations on more than three separate occasions

should be considered chronic.· This can include instances where either

Ecology should have been apprised of a particular situation or cross program

violations exist. This does not preclude identifying a violator as chronic or

recalcitrant on the second occasion; or

• Substantially deviates from the terms of a permit or order by not meeting the

requirements in a timely manner and/or by failing to perform work as required

by terms of permits or Order. (The impact from this deviation would result in

significant "slippage" in a schedule ora likelihood for potential for harm.); or

• Substantially deviates from RCRA and 70.105 RCW statutory requirements.

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d. Enforcement Options

Hazardous Waste Program staff shall consider the full range of enforcement options

available and choose the type(s) of action which will achieve, in a fair manner, full

compliance with the dangerous waste laws and regulations. Actions will range from

informal enforcement to pursuit of criminal sanctions. The goal of the chosen action

should be to achieve compliance and deny any economic benefit realized by the

noncompliance of the.business. .

When considering enforcement for a public entity, please refer to Policy 3-1 in the

SHW Policies and Procedures Manual. When there is some concern about the

regulatory status of the business because of storage time violations (i.e., is the

business a generator or storage facility), refer to Policy 3-2 in the policy manual.

Informal Actions

Informal action can take the form of a verbal warning or noting of the violation

during the inspection, or a compliance letter. When a compliance letter is issued it

is important that staff follow-up to ensure that the violator has responded to the

directives in the letter. Though directives in compliance letters are not binding by

law, they can be very useful in establishing a paper trail if formal enforcement is

initiated by Ecology and subsequently appealed by the violator.

Formal Actions

Administrative Actions

Administrative actions include: (unilateral) Orders which require compliance With

laws or regulations, payment of penalty or both, consent orders, permit revocation or

permit denial, termination of interim status, or Permit-by-Rule.

The most commonly used administrative actions are orders or orders with penalties.

Consent orders are also fairly common (see details below). When justified a facility's

permit can be revoked. Permit revocation is an enforcement option available as a last

step when a facility will not respond by other means. Permit revocation consists of

revoking a final facility permit, an interim status permit, or a permit by rule.

Consent (Agreements) Orders

Consent Agreements should be done when compliance will be expedited. Consent

orders can be used instead of administrative orders at the discretion of SHW and AG

staff. A consent order may be appropriate when the violator has major areas of

noncompliance but is very motivated to comply with the regulations. They are

appropriate for public agencies, moreover, public agencies generally prefer consent

orders to administrative orders. Consent orders take more time to prepare for

issuance than administrative orders, however, if developed properly they are not

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TABLE 1

SELECTION OF ENFORCEMENT OPTION

STEP 1

Classify Violations

Class 1 violations could result In a failure to:

. • ensure transport to TSD

• prevent releases to the environment

• ensure early detection of releases

• perform cleanup or corrective action

Class 2:

• all other violations

STEP 2

Review Discretion Factors

• envlronmentaVhealth risk

• compliance history/degree of cooperation

• Ecology resources AND

• Impact on the regulated community

Review Enforcement Examples

Review HPV criteria

• release or likelihood of release

• chronic violator

• subs. deviates from permit or order

• ...• subs. deviates from. 70.105 RCW

STEP 3

Business not an hpv Discovery of actual

or imminent threat

Business is hpv

r

STEP 4

Select

Enforcement

Option INFORMAL ENFORCEMENT I FORMAL ENFORCEMENT
appealable to the PCHB. All drafts of consent orders must be reviewed by the AG

before they are submitted to a facility.

] udicial Actions

When immediate action is needed to stop an imminent threat to public health and/or

the environment, hazardous waste staff may request the Office of the Attorney

General to file a judicial action in Superior Court, A judicial action differs from an

administrative action in that the order is issued and backed up by the court rather than

Ecology; A judicial action can be useful when a violator is not responding to an

administrative order.

Criminal Actions

Generally criminal behavior is defined as a violation which was conducted knowingly,

or intentionally and/or willfully. Evidence of criminal activity is often subtle and can

be indicated by 1) conflicting data, 2) conflicting stories and 3) deliberate actions.

When staff discover possible criminal activities, the Ecology-EPA Criminal Investigation Unit should be contacted at (206) 587-5086 or (206) 553-8306.

e. Selecting an Enforcement Option

Table 1 illustrates the sequence of steps to follow to select an enforcement option.

Step 1 of the process involves classifying the violation as class 1 or class 2 (see

page 2, violation categories and the examples in Appendix A). Step 2 consists of -D

reviewing the program discretion factors (see page 2) and enforcement examples

found in Appendix B and C, and review of the high priority violator criteria to

determine if the business is an hpv. Following this determination, formal or informal

enforcement is chosen.

Formal enforcement should be initiated for the following reasons: (1) achieve

compliance as quickly as possible, (2) provide an economic disincentive, (3) communicate to the regulated community the importance of complying with environmental

law.

There are only two cases where formal enforcement is mandatory in the Hazardous

Waste Program. The first case is if staff classify the violator as an hpv, The second

case is if staff determine that the violations pose an actual or imminent threat to

human health or the environment. In other cases, the decision to initiate formal versus

informal enforcement is determined by hazardous waste program staff.

Formal enforcement can be issued for class I violations but is generally not issued for

class IT violations alone unless the owner/operator is a chronic violator.

A final consideration in initiating a formal enforcement action is issuance of penalties

and determining penalty amount. The following section deals with this question.

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f. Penalty Determination Guidelines

Penalties are issued to deter continued noncompliance by providing an economic

disincentive to a business. Penalties can be issued for 1) failure to comply with the

regulations or 2) failure to comply with an enforcement action. They are commonly

issued as an escalation of enforcement response for a chronic violator. The determination to issue a penalty should be based largely on the nature of the violation with

respect to (1) the enforcement examples in Appendix B and C and other historical

enforcement examples available to staff and (2) the discretion factors on page 2 of

these guidelines.

The Pollution Control Hearings Board considers the following three factors when

determining if a penalty amount is appropriate: the nature of the violation, the prior

behavior of the violator, actions taken by the violator to correct the problem. The

board will also consider undue economic benefit from noncompliance when such

information is available.

Determination of Penalty Amount e

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Like the decision to penalize or not to penalize. the amount of the penalty should be

determined by classifying the violations andreviewing enforcement examples and

discretion factors. Based on the magnitude of the violation in relationship to the

discretion factors, each violation is given a high medium or low designation and a

penalty amount is selected that falls within the appropriate cell of Table 2. As a final

step, staff should evaluate individual violations and the total penalty amount proposed

in light of the nature of the violations to assure a fair and equitable penalty.

TABLE 2. DESIGNATION OF PENALTY AMOUNT

Designation Class I Class II

High $6,000 - 10,000 $3,000 - 6,000

Medium $3,000 - 6,000 $2,000 - 3,000

Low $2,000 - 3,000 $1,000 - 2,000

Consolidating Penalties

Noncompliance with a section or a subsection of Chapter 173-303 WAC constitutes a

violation of the WAC and as such can be subject to a penalty. In the hazardous waste

program, issuing a penalty for a violation of a section, rather than a subsection is the

preferred approach; however, there may be circumstances where enforcement

personnel determine the interests of the program are better served by penalizing for

violations of subsections of Chapter 173-303 WAC.

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During a hazardous waste inspection it is common to discover several instances of

noncompliance with asingle section of the regulations. For example, discovery of 30

drums of hazardous waste in violation of Section 173-303-200 could be interpreted to

be 30 separate violations. However, as dangerous waste enforcement examples will

attest, it is common practice within the program to penalize an owner/operator once

for all the drum violations rather than issuing a separate penalty for each drum. The

best approach when considering aggregate violations for one penalty is to consider

each violation and calculate the penalty separately. After all calculations are

completed, it is useful to compare the total to penalties issued in other enforcement

examples to ensure they are relatively consistent. In the case of drum violations it

may be appropriate to group drum violations with the same accumulation start date

.together for one penalty, whereas a leaking drum may warrant a separate penalty.

When possible, consider economic benefit to the facility for not complying with the

regulations so that penalties will offset these benefits.

Per Day Violations

Chapter 173-303 WAC allows per day penalties for hazardous waste management

violations. Per day penalties are not usually necessary to obtain compliance with the

regulations, however, they are an option availableto enforcement personnel. Per day

assessment of penalty should occur only when it is possible to specifically document

the period of noncompliance. Staff should also consider whether there exists a major

potential for harm, or whether a violator has been clearly recalcitrant in complying

with other enforcement actions, in deciding whether to assess penalties on a per day

basis.

g. Developing Recommendations for Enforcement and Issuing the Action

Once the violations have been classified and the possible appropriate enforcement

response identified, a Recommendation for Enforcement should be developed. Most

Recommendations should suggest comprehensive actions to bring the business into

compliance.

There is a great deal of discretion in selection of enforcement response in the

Hazardous Waste Program; it is therefore very important to document the logic used

in recommending a particular enforcement response. The recommendation should

clearly identify why the chosen action is appropriate and if a penalty is issued, why

that particular penalty is appropriate. In addition, the Recommendation should

include the compliance timeframe the action will establish.

One goal of developing a Recommendation for Enforcement is to develop a priority

system for enforcement of various violators. The system ensures the most significant

violations and entity evaluations will probably satisfy the criteria of requiring formal

enforcement.

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Based on historical national statistics, 10-20% of compliance inspection follow-up

activities have required formal enforcement. Hazardous Waste Program staff should

compare the information from various inspections to ensure that violators posing the

greatest risk to the environment are receiving the most stringent enforcement followup.

h. Routing Recommendations for Enforcement

Recommendations for enforcement are written from the inspector or permit writer to

their section supervisor. An exception to this is the NWRO where recommendations

for enforcement are directed to the regional enforcement coordinator. Enforcement

personnel are encouraged to seek advice from the AG's Office andlor the Hazardous

Waste Development and Support Section (HWDS Section) before enforcement actions

are issued. All formai enforcement actions will be sent to the appropriate regional

office director for review; the review period is five days. Penalties for individual

entities that exceed the delegated authority amount require approval by the program

manager before they are issued. Penalties of this magnitude and accompanying

recommendation for enforcement, should be directed from the regional office supervisor to the HWDS Section. Representatives of the HWDS Section will review the

action for statewide consistency and report their findings to the program manager with

a single copy of the action for the manager's approval and issuance. All enforcement

actions will be prepared on approved boilerplates.

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The Notice of Penalty needs to clearly identify the conduct which caused the viola-

.tion, the regulatory requirement(s) violated, and the final penalty amount. Reference

to a chosen amount for each violation must only be in internal documents (i.e., C'

Recommendation for Enforcement).

l, Tlmeframes for Enforcement Response

The timefrarne for the response depends upon the type of action to be issued. In most

instances, the timefrarne discussed below should be followed. (Approximately 10%

of the enforcement cases will warrant exceeding the suggested timeframe. Situations

include: resource limitations, coordination with other media/agencies is necessary,

etc.). Imminent health threats should be acted on immediately.

Violation discovery date is the date staff determine that a violation exists and

finalized documentation (usable in court) is available or the first day after the

evaluation which shows that a compliance date established in a prior action has not

been met.

Wherever practical; all actions issued should require compliance by the violator

within 90 days of the action. Deviations from this schedule may be necessary when

substantial on-site construction is needed.

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COMPLIANCE

ACTION TYPE TIME TO ISSUANCE REQUIRED

(Calendar Days) (Calendar Days)

Compliance Letter 30-60 0-90

Administrative Actions

Penalty Only

SO-25,000 30 - 90 N/A

S25 ,000 60-90 N/A

Order and Penal ty

SO-25,000 45 - 90 0-90

> S25,000 60 - 90 0-90

Judicial referrals should be conducted in as expeditious a timeframe as possible.

Enforcement personnel must immediately contact the Attorney General's Office when

considering referring an action. The referral package should be developed as quickly

as possible, generally in less than 90 days.

j. Escalation

Hazardous Waste Program staff should consider escalating the enforcement response,

which can include designating the violator as an hpv, whenever the violator is not

responding to staff directives or when staff discover that a business has the same

general classification of violations (i.e., poor containers & incorrect labeling of

containers), as were uncovered on a prior inspection. .

k. Settlement Guidelines

Penalty amounts are determined in accordance with the program penalty determination

method and accompanying enforcement examples. Penalties should be issued with the

intent of collection of the full value of the penalty.

A penalty may be canceled, affirmed,or reduced following application for relief from

penalty. Penalties will only be canceled or mitigated when additional relevant facts

are brought to Ecology's attention. Cancellation or mitigation of the penalty at this

stage is entirely the decision of Ecology staff.

Settlement of a penalty will only be considered following appeal to the PCHB

(canceling or mitigating following application for relief is not settlement). Settlement

of a case is the Ecology representative's decision in conjunction with the Assistant

AG.

Every effort should be made to determine what cases warrant settlement early on in

the case development process to facilitate planning and scheduling.

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When settlement negotiations are necessary the AG and Ecology representative are

advised to decide on a settlement negotiations tirneline and adhere to it.

• staff and the AG should set a reasonable negotiations timeline, a recommended

negotiations period is 3 months .

• negotiations may conflict with hearings preparations so a negotiations deadline

should be at least 3 months ahead of the PCHB hearing

• following the negotiations deadline offers may still be accepted from the

owner/operator at the discretion of the attorney and the Ecology

.representative.

Thomas Eaton, Manager

Solid and Hazardous Waste Program

Greg Sorlie, ogram Manager

Central Programs

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Appendix A

Violation Classification Examples

The following Appendix" is a list of violations and their recommended response. The

list is provided to serve as examples of violations. It is not comprehensive, nor will

nil circumstances of these violations warrant the recommended classification.

Professional judgement must be used. (Interim status standards 173-303-400 WAC

may also be applicable.)

Class I

Spills or discharges to the environment or public health incident (173-303-145) WAC.

Significant and immediate loss of environmental resources (RCW 70.105).

Operation of a land disposal facility after Nov. 8, 1988;"without adequate financial

assurance and without submittal of certification (Statutory requirement).

Actual or imminent discharge of hazardous substances or dangerous or extremely

hazardous waste to the environment (173-303-145) WAC.

Failure to determine if a waste generated is hazardous under either the Federal or

state lists/characteristics or state mixtures. For state-only waste, prior testing of the

waste was not required (173-303-070) WAC.

Failure to utilize the manifest system for transportation (173-303-180) WAC.

Failure of a generator to send waste to a properly permitted" treatment/storageor

disposal facility (TSDF) (173-303-200) WAC.

Gross failure of a generator to comply with the 90 (or 180) day storage requirements

(173-303-200 or 173-303-201) WAC

Operating without a permit or interim status (173-303-280,-800,-805, and 806) WAC.

Failure to prevent the unknown entry or prevent possibility of unauthorized entry of

persons, wildlife, or livestock into the waste management area of a facility (173-

303-310) WAC.

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Failure to develop a written inspection plan (173-303-320) WAC.

Failure to conduct training; lack of proper waste management practices is evident

(173-303-330) WAC. 0

Failure to develop a contingency plan (173-303-350) WAC.

Failure to have the emergency equipment designated in the contingency plan either

on-site or in proper working order and no comparable substitute equipment exists

( 173-303-360) WAC.

Failure to maintain/or substantial deviation from an adequate (approved) closure

plan ( 173-303-610) WAC.

Failure to establish or maintain financial assurance for closure and/or post-closure

care (173-303-620) WAC.

Failure to install or maintain adequate groundwater monitoring (173-303-645) WAC.

Failure to obtain and analyze samples from all wells compnsmg the required

monitoring system as required by/via regulation, correspondence and/or permit

( 173-303-645) WAC.

Failure to develop and maintain at the facility a groundwater sampling and analysis

plan ( 173-303-645) WAC.

Inadequate freeboard to prevent overtopping (surface impoundment or tank)(173-

303-640 or ~50) WAC.

.Class n .

Failure of a facility to provide notice of transfer of ownership; financial requirements

are satisfied (173-303-060) WAC.

Incorrectly' classifying a listed waste as a. characteristic waste when recycling

exclusions, land ban requirements, etc. do not apply and waste handling techniques,

including' compatibility do not change when .the waste is properly classified

(173-303-070) WAC.

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Failure to accurately complete any portions of the manifest which are not related to

waste description or designation (173-303-180) WAC.

Not specifically stating the words "Hazardous Waste" on the container, but other

markings indicate the material is a dangerous waste and the date of accumulation is

clearly stated (173-303-190) WAC.

Failure to submit the annual report on time (173-303-220) WAC.

Failure to provide notice on international shipments(173-303-230) WAC.

Inadequate documentation of training; verification that training has occurred is

possible (173-303-330) WAC.

Failure to provide a description of the arrangements with local authorities (173-

303-350) WAC.

Omissions in the operating record; omissions would not impair the facility's ability to

properly handle waste or respond to emergencies (173-303-380) WAC.

Failure to include the expected year of closure when using the financial test (173-

303-620) WAC.

Failure to analyze for all of the parameters as required, except when

implementing a detection system and at least four (4) quarters of data have been

collected as required, and the parameter(s) omitted are not indicator parameters

(173-303-645) WAC.

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