# POL 3-23:

1. Purpose ;-/riOO}O:.1?fLf


# Hazardous Waste Program Enforcement Guidelines

This enforcement guideline is to 

### beused as a tool by hazardous waste program staffto aid in their decision-making process. The guideline will help ensure that acts ofnon-compliance with Chapters 70.105 and 70.105A RCW and Chapter 173-303 WAC will 

### behandled 

### 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 ofRCW 70.105.080, and .095, Ecology has been given the authority to take enforcement action against any violator ofthe 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 

### besubstituted when the violation is clearly a dangerous waste violation. Provision is also made for appeal
. ofdepartmental 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 ofInitiative 97 amended Chapter 70.105 RCW 

### to provide for strict liability for knowing endangerment ofpersons orproperty and such offenses constitute a felony. Under the authority ofChapter 70.105A 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 ofthe program. Inter-agency agreements are periodically developed to further outline respective roles and responsibilities. 

### 3. Operatine Guidance This guidance specifies that hazardous waste staff

### firstevaluate and classify the violation(s) irrespective ofany 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 ofnon-compliance will be categorized depending upon the seriousness ofthe 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 and

### lor the environment. Class 

### 1 violations are instances ofnon-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 ofhazardous waste or constituents during the active life or any post-closure period ofthe 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 

### beconsidered Class I. They are general violations ofan administrative nature or lesser environmental hazard. Appendix A provides examples ofClass I and Class II violations. 

### b. Discretion Factors Once violations have been classified, discretion factors are considered to assist with the determination ofappropriate enforcement response. Discretion factors for consideration are: Information relative to congressional or legislative requirements, the risk posed by the waste, severity ofviolation, 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 staffshould address questions ofthe following nature: What is the quantity ofwaste? What is the toxicity, persistence, or carcinogenicity ofthe waste? What is the potentialfor release and migration from the site or exposure to humans? How much ofa threat or potential threat to human health or the environment would 

### beposed by this waste (and the violation)? Compliance**Histor;y/De~ree** ofCooperation Enforcement personnel should evaluate the violator's compliance history, i.e., has-the violator had a record ofnon-compliance which could 

### becharacterized as chronic or recalcitrant? In addition, enforcement personnel should examine the action(s) the violator has taken to either correct or aggravate the situation. Ofprimary importance is, What is the degree ofcare demonstrated by the owner/operator? Other Questions to consider are: Hasthe entity been informed about the regulatory requirement? (Note: information may have been presented in an educational format, assistance from Ecology, or in the form ofpast 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 ofavailable department resources must

### bedone 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 staffmust 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. Staffshould 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 ofhpv 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 

### offormal enforcement should 

### beinitiated 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 ofdangerous waste or dangerous waste constituents to humans or the environment; or • Is 

### a chronic or recalcitrant violator. Violators who have been found tonave 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 apermit or order by not meeting the requirements in a timely manner and/or by failing to 

### perform work as required by terms ofpermits or Order. (The impact from this deviation would result 

### in significant "slippage" 

### in a scheduleora 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 ofenforcement options available and choose the type(s) ofaction which will achieve, in a fair manner, full compliance with the dangerous waste laws and regulations. Actions will range from informal enforcement to pursuit ofcriminal sanctions. The goal of the chosen action should be to achieve compliance and deny any economic benefit realized by the noncompliance ofthe.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 ofthe business because ofstorage 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 ofthe 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 complianceWith laws orregulations, paymentofpenalty or both, consent orders, permit revocation or permit denial, termination ofinterim 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 consistsof 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 ofadministrative 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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# o**C~**

### TABLE 1 SELECTION OF ENFORCEMENT OPTION
STEP 1 Classify Violations Class 1 violations could result In a failure to: . • ensure transportto TSD
• prevent releases to the environment • ensure early detection of releases • perform cleanup orcorrective action Class 2: • all otherviolations STEP 

### 2

Review Discretion Factors
• envlronmentaVhealth risk • compliance history/degreeof cooperation • Ecology resources AND • Impact on the regulated community Review Enforcement Examples Review HPV criteria
• release or likelihood of release • chronicviolator • 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 

### INFORMALENFORCEMENT 

# I FORMALENFORCEMENTappealable to the PCHB. All drafts ofconsent 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 staffmay request the Office ofthe Attorney General to file ajudicial action in Superior 

### Court, Ajudicial action differs from an administrative action in that the order is issued and backed up by the court rather than Ecology; Ajudicial 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 ofcriminal activity is often subtle and can be indicated by 1) conflicting data, 2) conflicting stories and 3) deliberate actions. When staffdiscover 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 ofsteps to follow to select an enforcement option. Step 1 ofthe 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 ofthe high priority violator criteria to determine ifthe 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 ofcomplying with environmental law. There are only two cases where formal enforcement is mandatory in the Hazardous Waste Program. The first case is ifstaff classify the violator as an hpv, The second case is ifstaffdetermine that the violations pose an actual or imminentthreat to human health or the environment. In other cases, the decision to initiate formal versus informal enforcement is determined by hazardous wasteprogram 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 ofpenalties and determining penalty amount. The following section deals with this question.



### ------- -5-----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 ofenforcement response for a chronic violator. The determination to issue a penalty should be based largely on the nature ofthe violation with respect to (1) the enforcement examples in Appendix B and C and other historical enforcement examples available to staffand (2) the discretion factors on page 2 of these guidelines. The Pollution Control Hearings Board considers the following three factors when determining ifa penalty amount is appropriate: the nature ofthe violation, the prior behavior ofthe 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 ofPenalty Amount e 

# e-" Like the decision to penalize or not to penalize. the amount ofthe penalty should be determined by classifying the violations andreviewing enforcement examples and discretion factors. Based on the magnitude ofthe violation in relationship to the discretion factors, each violationis given a high medium or low designation and a penalty amount is selected that falls within the appropriate cell ofTable 2. As a final step, staffshould evaluate individual violations and the total penalty amount proposed in light ofthe nature ofthe 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 ofChapter 173-303 WAC constitutes a violation ofthe WAC and as such can be subject to a penalty. In the hazardous waste program, issuing a penalty for a violation ofa section, rather than a subsection is the preferred approach; however, there may be circumstances where enforcement personnel determine the interests ofthe program are better served by penalizing for violations ofsubsections ofChapter 173-303 WAC.

6During a hazardous waste inspection it is common to discover several instances of noncompliance with

# asingle section ofthe regulations. For example, discovery of30 drums ofhazardous waste in violation ofSection 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 ofdrum 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 

### DayViolations 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 ofpenalty should occur only when it is possible to specifically document the period ofnoncompliance. Staffshould 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 ofenforcement 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 ofdeveloping a Recommendation for Enforcement is to develop a priority system for enforcement ofvarious violators. The system ensures the most significant violations and entity evaluations will probably satisfy the criteria ofrequiring 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 thegreatest 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 accompanyingrecommendation 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 ofthe action for the manager's approval and issuance. All enforcement actions will be prepared on approved boilerplates. 

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The Notice ofPenalty 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 

### internaldocuments

### (i.e., 

# C' Recommendation for Enforcement). 

### l, Tlmeframes for Enforcement Response The timefrarneforthe response depends upon the type 

### of action to 

### be issued. 

### In most instances, the timefrarne discussed below should be followed. (Approximately 10% ofthe 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 ofthe action. Deviations from this schedule may be necessary when substantial on-site construction is needed.



### 8i --. I I



# .- 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 

### 90days. j. 

### Escalation Hazardous Waste Program staffshould consider escalating the enforcement response, which can include designating the violator as an hpv, whenever the violator is not responding to staffdirectives or when staffdiscover that a business has the same general classification ofviolations 

### (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 ofcollection ofthe full value ofthe penalty. A penalty may be canceled, affirmed,or reduced following application for relieffrom penalty. Penalties will only becanceled or mitigated when additional relevant facts are brought to Ecology's attention. Cancellation or mitigation ofthe penalty at this stage is entirely the decision ofEcology staff. Settlement ofa penalty will only beconsidered following appeal to the PCHB (canceling or mitigating following application for reliefis not settlement). Settlement ofa 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.


### 9When settlement negotiations are necessary the AG and Ecology representative are advised to decide on a settlement negotiations 

### tirnelineand adhere to it.

• staffand 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 ofthe PCHB hearing

• following the negotiations deadline offers may still be accepted from the owner/operator at the discretion ofthe 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 followingAppendix"isa list of violations and theirrecommended 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. Professionaljudgement must be used. (Interim status standards 173-303-400 

### WAC may also be applicable.) Class I 

### Spills or discharges to the environmentor public healthincident (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 ofthe 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 Operatingwithout a permitor interim status (173-303-280,-800,-805, 

### and 806) WAC. Failure to prevent the unknown entry or prevent possibility ofunauthorized 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. 

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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 groundwatermonitoring (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 ofa facility to provide notice oftransferof 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 ofthe 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 ofaccumulation 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 

### thattraining 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 ofdata have been collected as required, and the parameter(s) omitted are not indicator parameters (173-303-645) WAC.

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