.-

.

•' State/EPA Enforcement Agreement

Hazardous Waste Program

August 14, 1990

The J)\.fPOSS c:A this agreemert is to aidthe state federal govemmert in achieving and

maintaining a high level c:A compliance with environmernal laws and regulations, As an authorized

state, Washington has primary responsibility for compfJance and erlorcemert actionS to ensure

comptarce with RCRA and the state hazardous waste law. EPA retains responsibinty to ensll'e

fair and effective erlorcemert of federal requiremerts and a credible national deterrenceto noncompflance, To havean effective state/federal partnershipto accom~ these goals,

agreement on the following areas must be reached and implemerted.

A. Oversigtt Performance Criteria

B. Oversigtt Protocol

C. Crleria for DirectFederal Action

D. Advance NotllC8tion andConsultation

E. Tmely and Appropriate Enforcemert Action

F. Inspection Procedlles

G. State Reporting

A. Oversigtt Criteria and Measures DerIDing Performance

The following shaft be used as the erlorcemert and compliance performance measures

and the crleria by which oversight shall be conducted by EPA.

• 1. Compliance/enforcemert performance will be measured by determining I the State

EnforcemertPoficy and Guidefines are consistert with EPA Enforcemert Response

(December, 1987) and RCRA Civi Penalry PoflCY (May. 1984), and by

determining I the state isfollowing and implemerting ks State Enforcemert porlCY

and Guidefines (see attachmert 1) as resoorces aDow.

2. CompfJance/enforcemert performance wiD be measured by determining r the state

is meeting the criteria descrD:>ed in the annuaJ StatelEPA Agreemert (SEA), the

National·Criteria for a Quality HazardousWaste ManagemertProgram (June,

1986), the RCRNState Oversigtt InspectionGuide (December, 1989), the Federal

Facifrties Compfiance Strategy (November, 1988) and the RCRA Program

Evaluation Guide (Jilt, 1988). In using the performance measlXes inthese

doclI'nents,responsiveness to aIYlUaI wOO< program compr&ance and erlorcemert

priorties wiD be me3SlWed. The U.S. EPAOperatingYearGuidance (OYG)

estab6shes specifIC program priorties.

The following crleria wi be used to measlI'e performance by EPA intheirrole as

oversigtt agency and erlSlri1gfair and effective erlorcemert and comprl3llC8.

1. When the state requests EPA enforcemert action and EPA agrees to provide such

aetior\ EPA responds witha timely and appropriateaetior\ consjstert with the

National RCRA Enforcemert ResponsePo&cv.

2. EPA adheres to the oversigtt procedll'es and protocol descri>ed in this documert

in conduetilg their overslgtt responsiblities.

• 3. Whenthe state requests technicalassistance for erlorcemert, and EPAagrees to

provide such assistance. EPAresponse Istrnely and effeetNe.

1
·

B. Oversigtt Procedures and Protocol G

EPA and the state wi adhere to the folowing:

1. The purposes of oversigtt nspedions are several; to assess the quality and

completeness of state inspections, including both procedural and tectvlicaJ

aspects; to determine facUity compliance with regulatory and permit requirements;

to exchange normation, thereby strengthening state/EPArelations, and to

increase ttie levelof profICiency state and EPA inspectors through constructive

feedback.

2. Crleria that will be used to select facilities for oversigtt inspections include:

suspicion violations, urYesoNed violations, nature that.violations, status and .

type facility,.status permit actions, status groundwater rnonlorilg, status

cIoslIe/post-doslxe, suspicion contiruingor prior releases, and state inspection,

scheduUng.

3. EPAwill conduct oversigtt inspections on approximately ten percent the

evaluation inspections scheduled through the amuaJ work program. l1lis

percentage may be changed as a resul of state/EPA strategic planning exercises,

or changes in the OYG. Federal ilspection work will generaDy be completed in

concert with. state persomel However, oversigtt work may include independent

field inspections at facilities recertty nspected by state personhel - (Note: State

will be notfl8d ildependent EPA nspections).

4. EPAwill schedule

according to procedlles

oversigtt

outlined

inspections,

in the Memorandum

consistent with state

Agreement.

inspection

Oversigtt

schedules, 0

nspections, to the extent possible, will be everlt dispersed throughoc.1 the year

and ttvougholJ the state to en5lXea representative sampDng

compliance/enforcement review.

5. Generalmaria for EPA's evaluation of compliance nspection performance include:

the level regulatory knowledge, abilityto obtain and evaluate normatlon.

application appropriate regulatory requirements. appropriate determination

faciity type, field doc\.mentatiOn practices. procedural aspects inspections,

adequacy tectvlical reviews, post-hspection documertation practices

(nspection fincfngs and report content). and elements field presence

(preparedness, effeeweness. etc.).

6. EPAwill ensile that oversigtt inspections are conducted by experienced .

knowtedgeable nspectors and that nspectors have reviewed files, plans. and

permits and adequately familiarized themsetveswith the facility/handler operations

prior to conducting the oversigtt nspectlon.

In sluations where EPAdesires,with state concurrence, to use jointInspections

with the state as a training mechanism for EPA staff, these inspectlons·shaI be so

defined as training nspections and wiD not be considered oversigtt inspections,

7. The EPA ilspector's role in oyersigtt Inspections is to gail knowledge state

Inspection practices, capabifity, and thOl"ougMess, as wei as to determile faeRy

compliance.

be agreed l4lOO

Specfic

prior

arrangemerts

to the ale ilspection.

between

The

the

state

state

i'lspector

and federal

wi

ilspectors

be the lead

wi (~) Inspector dtRlg an oyersigtt inspection where Inspectorsfrom both agencies are

presert. The EPA InspectorwiI aetNeIy~ecrit as necessaJy to cIarIy

2
• Issues, evaluate violative practices, docunert findings, and otherwise compiete the

inspection.

In coordinating oversigtt inspections, the state and EPA are expected

to exercise common courtesy, tad and professional behavior. Suggestions for

inspection inprovemert wiD not be provided untilafterthe inspection Is completed.

8.

9. •

After an oversigtt inspection, the state inspector wiD transmitto the EPAInspector

a copyof the state's inspection report no laterthan 30 Working days followilg the

inspection, unless a differert timeframe is agreed upon by both parti9s. For

inspections irwoMng laboratory reports, a follow-up report containingthe Iaboratoty

resuls wDI be provided when the results are completed.

No laterthan 20 working days after EPA receives the state inspector's report, EPA

wiD prepareawrtten evaluation report stating its findings and Slbml this to the

state aJongwitha copy of EPA's inspection report. Exceptions to this timeframe

may occur r agreedupon by both EPAand the state. These" reports should be

sart to Ecology's Hazardous Waste Program Manager. The evaluation reports wi

be used to assess the quality of, and identify and correct problems wlh, the

compliance inspection program.

•

10. The stateand EPA may jointly issue administrative orders, eitherconsert orders or .

orders that may be appealed, when both the Stateand EPA agree that this wi be

the most effective use of agency resources or 8uthorlies. In such cases the state

wiD usuaJIy issue afroJ applicable penalties.

C. Criteriafor Direct Federal Action

The following descri:>es the situations under which direct federal actionmay OCCIX.

1. The lack of timely and/or appropriate state enforcemert as defll'led i"Ithe state

EnforcemertResponse poncy.

2. A case where the state has Issued a deflCiert penalty [Le., below the minimLm level

provided instateenforcemert guide6nes withoti acceptablejustl'1C8tion for such a

deviation).

3. A requestfrom the state for EPA ertorcemert action.

4. Wherethere areviolations of an EPAorder or consert decree.

5. In consuIlation with the state, where there are violations of nationalsignificance or

where iter-state issuesare inYaNed.

•

D.

6. VIOlations of Hazardous and So&d Waste Amendmerts of 1984 ~A) and federal

rules promUgated pursuart to HSWA, for which the state is not auhorized.

Advance Notification' and Consultation

A policy of 'No Surprises' wi be applied to aI aspects of the compliance and

enforcemert program covering inspections, enforcemert aetNlies, press releases and

public information. To guarartee ample advance notTlCation the followi"lg wi be done:

3
1. AI

~horization

coordination,

MOA

notifICation

wil be followed

and reporting

by both

requiremerts

the state and

stated

EPA.

In the final 0

2. The state and EPAshaI use quart9fti c:onaminated sle meetngs to wth

each other and verly compliance and erforcemert ci'cunstances prior to EPA

Initiating at'rf overfile enforcernert action This ,should be done when a case is

being consideredfor overfiJe and prior to at'rfformal action being drafted.

These meetings'will have written 'agendas (developed with inpll from both the state

and EPA) available to the state and EPA10 working days In advance d the

scheduled meeting.date. The rssuls d these meetings wiD be doclmerted In

writing and available to the state and EPA20 wort<ing days foDowing the meeting.

EPAand the state wiD alternatelytake the lead In prepamg agendas and meeting

documentation The meetings wi be held alternately at state and EPAofficeS.

3. EPAshaD notify the state prior to taking action on a pending overfileaction. Except

In cases of imminent or substantial endangermert to health aIY:JJor the

envirorvnert, such prior notice shaI 0CC\6 at least 15 wort<ing days In advance.

This notifICation wiD be provided to the state Solid and Hazardous WasteProgram

Manager. EPAshould also provide normal notice to the involvedstate staff as

wel

During the 15 day period, EPAand the state wit consul il good falh regarong an

appropriate enforcemert action il leu of the potential EPAoverfie action If at the

end of 15 wOl1dng days EPA is satisfied with steps taken by the state toward O· appropriate enforcement action, EPAwill not take independert RCRA erforcemert

action

4. When EPA or the state has compliance ilformation relevant to a pehcfng or issued

enforcemert action on a facinty beng inspected or pennilted under the State/EPA

Agreemert Work Program (e.g., lab data, consUllart reports, complance foIow·

ups, manifest discrepancy reports, etc.),they wiD share that ilformation as

necessary il a timely and responsible mamer.

5. Upon advance request state and federalcompnance files are open for reviewat

arrt time to appropriate compflance persomeI with consideration for erforcemert

and/or conf'ldentiaI business ilformation restrictions.

6. Prior to at'rfpress releases by eitherthe state or EPA relatedto joirt eriorcemert

efforts or EPAoverfile actions, advanceconsultationwlh the other party shaI

OCCll'. Each,party wiD be apprised d what is pIamed to be said In the press

release and given the opportll'lity to part;cipate il a combined press release.

Where possible, combined press releases are encouraged. Coordilation and prior

notice on press releases is the responsibility c:A the agency public ilformation

offJC9rs. AJ leastttvea days notice wi be given prior to a press release.

E. TmeJv and Appropriate Enforcemert Action

It is understood that the State wi address at violationsd the Dangenxs and

. Hazardous Waste Regulationswlhin the state's ~1Ction. The Stateagrees to

take tlmett and appropriate erlorcemert action consistert wlh the crlaria

established In EPA'sEnforcemert Response Poicy and Washi'lgton'. §t!t! 0

Erloreemert Poley and Guide6nes. AI tigh priorty violators, as defined In the

4
•

F.

State Enforcemert por!CV and Guideranes and EPA'sEnforcemert Response Policy,

wi be issued formal enforcemert actions wlh penalties ~hin 135 days.

Inspection Procedures

Ecology wal follow InspectionProcedures as outlined in Solid and Hazardous

Waste Program Procedure, Procedure3-9 Hazardous Waste Ins~ions.

•

G. Reporting

The state agrees to classify and report violators, inClucflllQ high priority violators, in

accordance wit~ the StateEnforcement Pof!cy and Guidelines and EPA's

Enforcement ReSponse POrlCy. AD state inspection and erlorcemertaetivity is to

be reported by the stateinto the EPA HWDMS data base (or RCRIS as

appropriate) using the CMEL torm (or RCRIS foons when developed). CMEL's are

to be submitted on the 20th of every morth and wm hclude aD inspection and

enforcement activity completedthe previoUs morth. Ecology is responsiblefor the

accuracy of the CMEL data EPAis responsible for the accuracy of data ertty into

HWOMS (or RCRIS). The state will not receive arr; crecflt for arr; compliance or

ertorcement activity that is not reported accuratett to the EPAdata system

The state willtransmit to EPA within30 working days of the inspection, Or withinthe

altematett agreed upon timeframe, copies of inspection reports and at'If

accompanying infoonal.aetions for an land dIsposal facilities, federalfacilities and

forfaculties receiving off·site CERCLA wastes listedin the SEAwork program

Similarly, EPAwill transmit to the state within30 working days of the inspection, or

within the alternatett agreed-upon timeframe, copies of.inspection reports for

federal, state and IocaJ faculties or facilities receiving off·sle CERCLA waste. In

adOllion, upon issuancethe statewm provideEPAwithcopies of at state issued

administrative orders and penalties and EPAwill providethe state with copies of aa

EPA issued administrative orders and penalties.

•

Approved _~'--..:..- _

Representative, Departmeft of Ecology

5
Attachment 1

Revised Dangerous Waste Enforcement Response Guidelines

August 8, 1989

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-

o

o

o
•

lrosra, Specific Cuideline•• pans.tgu. V,.t.

1. Purpose

This enforcement guideline is to be used as a tool by dangerous waste

staff and enforcement officials (-enfor~ment personnel-) in their

decision-making process. The guideline will help ensure that a logical.

fair and effective state enforcement process occurs toward acts of,~on.

compliance with the state's dangerous waste laws and regulations -

Chapters 10.105 and 10.105A RCV and Chapter 113-303 YAC. Toward this

goal, this guideline will delineate the state's enforcement authority

and provide internal operating guidanc~ for determining categories of

violation and the associated timely and appropriate enforcement

response.

•

•

2.

3.

Authority

Under the provisions cf RC\.1 70.105.080, and .095, the Department 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 levy civil penalties up to a maximum of $10,000

per day of non-compliance per violation, require compliance with the

regulations, and impose penalties for non-compliance with such orders .

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.

RCV 10.105.090 makes certain violations a gross misdemeanor and provides

for criminal sanctions. Additionally, Section 15 of rnitiative 91

amended Chapter 10.105 RCV to p~ovide for strict liability for knowing

endangerment of persons or property and such offenses constitute a

felony.

Under the authority of Chapter 10.l05A Rew, 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 has authorized the

Oepartment of Ecology primary responsibility for administering the RCRA

program. Administration includes enforcement of the program. Inter-

-agency agreements are developed regularly; these documents further

outline respective roles Ind responsibilities. (See Supplemental

Guidance)

Operatlnl Cuidance

This guidance specifies that enforcement personnel conduct a two-step

thought process.' The first step in the process is to evaluate and

classify the violation(s) irrespective of any other circumstance. which

may exist. The second .tep require. enforcement personnel to analyze

pertinent information in order to select an appropriate enforcement

action. The latter analy.is further delineate. what appropriate level

of enforcement should be taken. Civen this structure. enforcement
personnel are able to ~quitably enforce the Dangero~s ~aste Regulations.

Illustration A outlines the enforcement flow process.

a. Violation Categori~s

Each instance of non-compliance will be categorized ~epending upon :h~

seriousness of the violation. Violations will be classified into tAo

categories: Class I and Class 11. Class I violations are those ~hich

e·ither result. or could result in an imminent threa: :0 human health

and/or the environment. Class·I violations are instances of non.

compliance which could result in a failure to: (1) ensure dangerous

waste is destined for and delivered to an authorized :reatment. Stor3£~

or disposal facility (TSDF); (2) prevent releases of hazardous ~~ste or

constituents both during the active and any post·closure periods of thr.

entity's operation where appropriate; (3) ensure early detection of

releases; or (4) perform emergency cleanup operation or other correc:i\'r.

action for releases. 1 Class 11 violations encompass all violations

which would not be considered Class 1. They are general Violations of

an administrative nature or lesset environmental hazard. Appendix A

provides examples of Class I and Clas~ 11 violations.

b. Discretion Factors

Once the classification of the specific violation has been completed,

other pertinent information must be evaluated. Infor~ation relative to

Congressional or Legislative requirements, the risk posed by the ~aste,

severity of violation, the entity'S action including compliance history.

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

~he regulated community. Essentially, enforcement personnel must

evaluate the full range of factors which come into play. The followir.g

are noteworthy discretionary factors which are to be considered in

addition to those on Page Section III of this manual.

Legislative Requirements

. To evaluate Congressional or Legislative intent. enforcement personnel

must first examine whether the particular violation(s) is a specific

sta~utory requirement. Further analysis should then be done to assure

the requirement is a high enforcement priori ty. Please note:

enforcement personnel should examine whether the infraction constitutes

a statutory violation. (Discretion is only permissible in cases vhtch

do not involve statutory requirements.)

EnvironmentalfHealth Risk

o

o

To evaluate the risk posed by the waste, enforcement personnel should

address the following questions: lJhat is the quantity of waste? \-'hat

11 the toxicity persistence or carcinogenicity of the waste? How lI!uch

tror purposes of this guidance, all Class 1 violations are cons Ide r ed

·Significant-, and thus are subject to formal enforcement.

()
•

•

•

3

of a threat or potenti.l thre.t to human health or the environment would

be posed by this waste (and the violation)? Does the waste pose a short

term (i.e., explosion) or long term (i.e., carcinogenic) risk?

Compliance History/Degree of Cooperation

Enforcement personnel should evaluate the entity's compliance history,

i.e., has the entity had a record of non-compliance which could be

characterized as chronic or recalcitrant? In addition, enforcement

personnel should examine the action(s) the entity has taken to either

correct or aggravate the situation. Questions to consider are: Has th~

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

entity complied with prior enforcement actions? How quickly did the

entity respond to correcting violations noted (either during or prior :0

the inspection)? and what financial incentives exist (or existed) to

continue to violate?

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

(Section Supervisor). Supervisors are responsible for apprising the

Program Manager if resource constraints are significantly impacting

their ability to implement this guidance.

Impact on the Regulated Community

Enforcement personnel must evaluate the impact a particular action would

have on both the entity and the regulated community. Personnel must

question whether an enforcement action would bring about a behavioral

change (toward complying with environmental laws) on both the entity and

the regulated community. Personnel 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. Enforcement Options

Enforcement personnel 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

regul.tions. The r~nge of actions will span from informalenlorcement

to pursuit of criminal sanctions. The goal of the chosen action should

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

entity.

Informal Action. - Informal action can take the for. of , verbal ~arning

or noting of the violation during the inspection, or • Varnlnl or
o

Compliance Letter. When Yarning or COllpliance Letters are utilized,

written confirmation by the entity that compliance has been achieved is

required.

Administrative Actions - Administrative actions include: (unilateral)

Orders which require compliance with laws or regulations. payment of

penalty or both. Consent Agreements. Permit Revocation or Permit

Denial, Termination of Interim Status, or Permit-by-Rule. (Note:

Notice of Penalty should be a separate document.)

Consent Agreements include: Consent Orders, Memorandum of Understanding

or Intei-Agency Agreements (Public agencies). . These latter two actions

should be drafted to state they are formal actions. Using a Consent

Agreement is totally within the discretion of Ecology management and

generally will be used only with public entities. Consent Agreements

should be done when compliance will be expedited.

Judicial Actions - Ecology may request the Office of the Attorney

Ceneral to file a Judicial action in Superior Court.

Criminal Action - \lben Willful, knowing or grossly negligent violations

occur, Criminal Sanctions shall be considered. The Enforcement Section,

Central Programs should be consulted for further guidance when 0

considering criminal action. (See Supplemental Cuidance • ' Cri~inal

Investigation Referrals and Procedures)

d. Option Selection

Once the violation(s) has been classified and the possible responses

identified, a Recommendation for Enforcement2 should be developed. ~ost

Recommendations should suggest a comprehensive action.

The Recommendation should identify the logic used in recommending a

particular response. It should clearly identify why the chosen action

is appropriate. In addition, the Recommendation should include the

compliance timeframe the action will establish.

In general, issuing formal action is appropriate for Class I violations.

However, discretion factors must be considered. Informal actions should

never be issued when there is an actual or imminent threat to hUJJJan.

health or the environment. In certain instances, formal actions with

penalties must be issued. Full implementation of this guidance may be

limited by resource availabilit,. CircUJJJstances warranting formal

2See Section -'

Enforcement

Supplemental Guidance on Preparation of Recommendation for
••

•

•

5

action occur when the entity':

o Has caused actual exposure or a substanti.l likelihood of rele~s~

of dangerous waste or dangerous waste constituents; or

o Is a chronic or recalcitrant violator (Entities who have been

found to have numerous Class 1 or Class 11 violations on moa t h..:".

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 prec Iude identifying an entity as chronic or r ec al e Ltr ant

on the second occasion); or

o Substantially deviates from the terms of a permit or order by no:

meeting the requirements in a timely manner and/or by failing to

perform work as required by terms of permits, Notice of .

Deficiency, or Order. (The impact from this deviation would

result in significant ·slippage· in a schedule or a likelihood for

potential for harm.); or

o Substantially deviates from RCRA and 70.105 RC~ statutory

requirements .

Issuance of a formal action to an entity who satisfies the above

requirements achieves several goals. These goals are: (1) Compliance

will be achieved as quickly as possible; (2) An economic disincentive

(i.e., penalty) will be imposed in as short a timeframe as possible; and

(3) A message of the importance of complying with environmental law will

be communicated to the regulated community.

Appendix B provides examples of recommended enforcement responses.

Note: One goal of developing a Recommendation for Enforcement is :0

develop a priority system for enforcement of various entities. The

system ensures the most significant violations and entity evaluations

will probably satisfy the criteria of requiring formal enforcement.

Based on historical national statistics, 10·20' of entity evaluations

have required formal enforcement. Enforcement personnel should compare

the information from various evaluations to determine which violators

pose the greatest risk to the environment. (The expected percentaae

does not reflect either a Quota or limit for formal enforcement,)

e. Penalty

Uhen a violation leads to the assessment of a penalty, the follOWing

guidelines apply .

'These circWlsunces satisfy the federd definition of a -High Priorit)·

Violator-
6

1. Ceneral Rules:

A penalty can be assessed per violation or for groups of violations.

This means that there can be multiple penalties issued against an enti~v

in anyone civil action. In addition, a single action on the part of .

the entity may result in several violations. Penalties for these

violations may be separated or combined.

A penalty can be assessed per day. However, this option will not al~ov$

be applied. Per day assessment of penalty should occur only when it i~

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 on a per do:

basis.

The Notice of Penalty n~eds to clearly identify the conouct which caus~d

the violation, 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., Recommendation for

Enforcement).

2. Determination of Penalty Amount:

A penalty vill be assessed using the ranges identified belov for each

category of Violation. Enforcement personnel should first examine

whether the factors presented in the Section 3.b. (Discretion Factors)

of this manual vould classify the entity as a High, Medium or tov

enforcement priority. For each violation, personnel should then choose

within the range. Finally, personnel should evaluate both the

violation-by-violation assessment and the total penalty in light of the

situation to assure a fair and equitable process. .

c

o

[actors

High

Medium

Class I

$6,000 • 10,000

$3,000 . 6,000

$1,000 • 3,000

Class II

$3,000 • 6,000

$1,000 - 3,000

$0 . 1,000

Note: Penalty assessment to the statutory maximum may be appropriate

for any violation in certain circumstances.

Note: Penalties for failure to pay assessed hazardous waste management

fee is a maximum of $500 per day and a minimum of $100 per day.

For additional guidance: Supplemental Enforcement Cuidelines for Civil

Penalties, T8D) o
•

7

F. Timeframes

The timeframe for the response depends upon the type of action to be

issued. In most instances. the timeframe discussed below sho~ld be

followed. (Approximately 10' of the enforcement cases will warrant

exceeding the suggested timeframe. Situations include~ resource

l~mitations. coordination with other media/agenci~s is necessary. ~tc.)

Violation discovery date is the date the enforcement personnel determir.e

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.

Vherever practical. !ll actions issued should require compliance bYr~he

entity within 90 days of the action. Deviations from this schedule may

be necessary when substantial physical construction is needed.

Administrative Actions

Yarning Letter 30 - 90

•

Action Type

Time to Issuance

(calendar days)

Compliance

Required

(calendar davs}

o - 90

Penalty only

O-lOK 30 90

~lOK 60 90

Order and penalty'

O-lOK 45 • 90

~lOK 60 . 90

NA

NA

o - 90

o - 90

•

Judicial referrals should be conducted in as expeditious a timeframe as

possible. Enforcement personnel must immediately contact the Attorney

Ceneral's Office when considering referring an action. the referral

package should be developed as quickly as possible. generally in less

than 90 days.

4. Supplemental Cuidance

a. Memorandum of Agreement, Department of Ecology and United States

Environmental Protection Agency (Date)

b. Criminal Investigations • Referrals and Procedures (Date)

c. Enforcement Cuidelines for Civil Penalties (Date)

d. Preparation of Recommendation for Enforcement (Date)

'Time frame for issuance of zero penalty (Order only) 11 identical
Appendix A

Violation Classification !xa=ples

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

The list is provided to serve as exa=ples of violations. It is not

comprehensive, nor vill all circumstances of these violations warrant the

recommended classification. Professional judgement must be used. (Interim

sta~us standards 173-303-400 may also be applicable.)

Class I

Spills or discharges ,to the environment or public health incident (173-303-

145)

Significant and immediate loss of environmental resources (RCY 70.10S)

Opera~ion of a land disposal facility after Nov. 8, 1988, without adequate

financial assurance and certification was not submitted (Statutory

requirement).

Actual or imminent discharge of hazardous substances or dangerous or extremely

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

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Failure to determine if a vaste generated is hazardous under either the 0

\, Federal or state lists/characteristics or state mixtures. For state-only

waste, prior testing of the ...,aste ...,as not required (173-303-070).

Failure to utilize the manifest system for transportation (173-303-l80).

Failure of • generator to send vaste to a properly permitted treatment/storage

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

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

requirements (173·303-200 or 173-303-201).

Operating vithout a permit or interim status (173-303-280,-800,-805, and 806).

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 (173-30)~)10).

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

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

evident (173-303-330).

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

Failure to have the emergency equipment designated in the contingency plan

either on~sit. or in proper vorking order and no comparable substitute 0

equipment exists (173-303-360). '

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

closure plan (173-303·610).
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Appendix A; Pg. 2

Faiture to establish or maintain financial assurance for closure and/or post.

closure care (173·303·620).

Failure to install or maintain adequate groundwater monitoring (173.303.6~~).

Failure to obtain and analyze samples from all wells comprising the requir.d

monitoring system as required by/via regulation, correspondtnce and/or p~:~i~

(173·303·645).

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

analysis plan (173·303·645).

Inadequate freeboard to prevent overtopping (surface impoundment or tank)(li3.

303-640 or -650).

Class II

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

requirements are satisfied (173·303·060).

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).

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

related to waste description or designation (173·303-180).

Not specifically stating the words -Hazardous Yaste- on the container, but

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

accumulation is clearly stated (173·303·190).

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

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

Inadequate documentation of training; verification that training has occurred

is possible (173·303·330).

Failure to provide a description of the arrangements with local authorities

(173-303-350).

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

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

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

(173-303-620) .

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 (173-303-64S).
Appendix •

Example Situations

EX.A,,"1PLE 1

Inspector Clouseau conducted an inspection of Uasteland Inc. Uasteland

operates a storage facility ina rural area of Podunk , UA. Prior to

conducting the inspection, Inspector Clouseau examined the facility files.

Prior inspection reports noted manifest violations, failure to meet genera:

inspe~tion requirements, failure to designate an emergency coordinator, and

several unlabeled drums. A Compliance Letter had been issued to the facil::v·

the facility had certified that all violations noted had been corrected. . .

During the inspection the following violations were noted: ten of the t~e:~e

drums in the dangerous waste storage area were not labeled, one drum in

storage was leaking, one drum was corroded, the contingency plan could not be

found and qocumentation that training had occurred was not available.

Inspector Clouseau was informed that th~ contingency plan may be with the

newly appointed emergency coordinator (Rperson who took Fred's job").

Unfortunately, the environmental manager could not recall the individuals !~ll

name. Yasteland's environmental manager stated that training had occurred and"

located a brochure announcing the training session.

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Violation Classification:

Unlabeled Containers 173·303·200 Class I 0

Improper Containers 173·303·630 Class 1

Contingency Plan 173·303·350 Class I

Training 173·303·330 Class II

Discussion: the unlabeled and improper containers may cause a likelihood of

exposure to dangerous waste. In addition, the lack of being able to find the

contingency plan, which is designed to be used in an emergency, could result

in exposure. Clearly, the "environmental manager should know who to contact 1n

an emergency. Inspector Clouseau concluded that the training violation was

Class 11; this was based upon the fact that prior inspection reports had sho~~

training had occurred within the last 1 1/2 years. Clouselu concluded thlt

the lack of formalized training had not significantly impacted his hazardous

waste manager practices since the majority of regulatory requirements were

followed.

Recommended Enforcement Response:

Inspector Clouseau recommended that Vasteland be issued an administrative

order with penaltieS. His Recommendation requested the action be given a

-High- enforcement priority. Several factors led him to this conclusion:

enforcement history, container mismanagement, and lack of a contingency plan. (~.... Clouseau reco~ended a $26,500 penalty be Issessed. He calculated his penal tv)

•• follows: Unlabeled containers· $10,000; Improper containers· $8,000; .

Contingency 'lan • $8,000; Training· $SOO. He chose the upper end of the
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Appendix B; Pg. 2

matrix for the cont~iner labeling violation because of the historical

violation and the percentage of unlabeled drums. For all other violations.

Clouseau recommended the mid-point. Uhen discussing his recommenda t ion wi til

his supervisor, the question of combining the container violation was raised.

,Clouseau stated that he believed the violations were distinct and separate in

this instance for several reasons. The regulations outline container

condition and labeling separately, the labeling violati~n had been noted

previously, most of the drums were not labeled, and leaking/corroded .

containers were among those not labeled. In addition, he believed the overall

penalty assessment was equitable in comparison to similar situations. His

recommendation vas subsequently issued to the facility.

EXAMPLE 2

Inspector Christie conducted an inspection at Speedy Dry Cleaners. An

examination of facility files showed that Speedy had notified in August of

1980 as a generator and no previous inspections had been conducted.

During the inspec~ion, Christie noted the following violations: one container

was not properly labeled (out of six in the dangerous ~aste storage area);

personnel training had not been conducted .

Violation Classification;

Container labeling

Training

173- 303· 200

173-303·330

Class 1

Class 11

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Discussion: Inspector Christie concluded that the lack of a label on the

container could result in shipment to an unauthorized facility and classified

the violation as Class 1. Since the owner/operator of the facility was

clearly knowledgeable of the regulatory requirements, Christie concluded that

the lack of formalized training vas a Class 11 violation.

Recommended Enforcement Response:

Christie recommended that Speedy be issued an informal action. Although a

formal action could be justified, Christie believed an informal action was

appropriate. This vas the first inspection that was conducted and most of the

regulatory requirements were followed. A Compliance Letter was subsequently

issued.

EXAKP·L£ 3

Inspector Fletch conducted an inspection at Environmental Cleanup, a company

that accepts waste froll local industry. The facility operates a recycling

process for activated charcoal used in air and water systelli. The facility

operates a drUID Itorage area for incoming vaste and a separate storage area

for waste generated.

Inspector Fletch examined the facility filel prior to conducting the

inspection. Inspections had been conducted approximately twice a year since
Appendix B; Pg. )

1980. Early inspection reports noted numerous violations inclUding several

areas of spillage. Initially, the facility did n~t have any fire protection

equipment.

Ecology issued a Letter of Compliance followed by an Administrative Order to

Environmental Cleanup. The Order resulted in a change in ownership of the

facility. Operations were changed to comply with State Law and a ·state of

the art- sprinkler system was installed. The system was directly connected to

the fire department.

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Inspector Fletch found the management plans at the facility kept in an

organized fashion. The facility operator closely tracked what was received.

processed. and generated at the facility. The physical inspection noted

inadequate aisle space in several of the drum storage areas. The facility

owner/operator stated that current operations were at maximum capacity because

of a recent cleanup project. Although close examination of the storage area

was not possible, due to the lack of aisle space, some spillage was eviden:.

In addition, Fletch was unable to determine whether incompatible Waste had

peen separated. Additional aisle space would be available when the cleanup

was completed. .

Violation Classification~

Aisle Space 173·303·340 Class 1 o

Discussion: The lack of adequate aisle space most likely resulted from the

recent cleanup operations. Fletch noted on his inspection report to inform

Ecology's permit writer of the constraints in the facility's design. Fletch

concluded that the violation should be classified as Class 1.

Recommended Enforcement Response~

Fletch recommended that Environmental Cleanup be issued an informal action.

He recommended that a Compliance 1.etter be issued with short compliance

timeframes. A follow-up inspection was planned shortly after the facility

compliance was required. A Compliance Letter was subsequently issued. .

CG:cs

ERP.An o
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DANGEROUS YASTE CUIDANCE: INTERIM APPROVAL

Approved for consistency with Enforcement Policy and Enforcement Manual.

xbkL·

Greg Sorlie, Manager

Central Programs

• Approved for consistency with program objectives.

Thomas Eaton, Manager Date

Solid and Hazardous Yaste Program

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