# • Appendix C.

1. Purpose Enforcement Policy Hazardous Waste Program Enforcement Guidelines



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• This enforcement guideline is to be used as a tool by dangerous waste staffand enforcement officials ("enforcement personnel") iritheir decision-making process. The guideline willhelp ensure that a logical, fair and effective state enforcement process occurs toward acts ofnon-compliance with the state's dangerous waste laws and regulations, Chapters 70.105 and 70.105A RCW and Chapter 173-303 WAC. Toward this goal, this guideline willdelineate the state's enforcement authority and provide internal operating guidance for determining categories ofviolation and the associated timely and appropriate enforcementresponse. 2. Authority Under the provisions ofRCW 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 civilpenalties up to a maximum of $10,000 per day ofnon-compliance perviolation, require compliance with the regulations, and impose penalties for non-compliance with such orders. In no case should otherenforcement authority be substituted when the violation is clearly a dangerous waste violation. Provision is also made for appeal ofdepartmental actions to the Pollution ControlHearings Board by the directly affected party. RCW 70.105.090makes certain violations a gross misdemeanor and provides for criminal sanctions. Additionally, Section 15 ofInitiative 97 amended Chapter 70.105 RCW to provide for strict liability for knowing endangerment ofpersons or property 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 has authorized the Department 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 and responsibilities. 3. Operating Guidance This guidance specifies that enforcement personnel conduct a two-step thought process. The first step inthe process is to evaluate and classifythe violation(s) irrespective of any Appendix C 1other circumstances which may exist. The second step requires enforcement personnelto**C~** evaluate discretion factors in order to select an appropriate enforcement action. The ' latter analysis further delineates what appropriate level ofenforcement should be taken.

a. Violation Categories Each instance ofnon-compliance will be categorized depending upon the seriousness of the violation. Violations will be classified as Class I or Class II. Class I violations are those which either result, or could result in an imminent threat to humanhealth and/or the environment. Class Iviolations are instances ofnon-compliance which could result in a failure to: (1) ensure dangerous waste isdestined for and delivered to an authorized treatment, storage or disposal facility (TSDF); (2) prevent releases ofhazardous waste or constituentsboth during the active and any post-closure periods of the entity's operation where appropriate; (3) ensure early detection of releases; or (4) perform emergency cleanup operation or other corrective action for releases. Class II violations encompass allviolations 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 evaluated to determine the penalty amount. Discretion factors for consideration are: Information relative to congressional or legislative requirements, the riskposedby the waste, severity of violation, the entity's action including compliance history, available agency resources, and 

# 0 the impact that any action would have on the regulated community. Legislative Requirements To evaluate Congressional or Legislative intent, enforcement personnel must first examine whether the particularviolation(s) is a statutory requirement. Violations of specific statutory requirements should receivevery high priority for 

### enforcement EnvironmentallHealth Risk To evaluate the riskposed by the waste or violation, enforcement personnel should address the following questions: What is the quantity of waste or nature of violation? What is the toxicity,persistence, or carcinogenicity of the waste? How much of a threat or potentialthreat to human health or the environmentwould be posed by this waste or the violation? Compliance HistorylDegree ofCooperation Enforcement personnel should evaluate the entity's compliance history, i.e., has the entity had a record ofnon-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 the entitybeen informed about the regulatory requirement? (information may have been presented in an educational format, via technical assistance from Ecology, or in the form of past



### 2 Appendix C 2 

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• enforcement action.) Has the entity compliedwith prior enforcement actions? How quickly did the entity correctviolations noted either during or prior to the inspection? What economic benefits are being accrued to the owner/operatorbycontinued violation? Resources Evaluation ofavailable department resources must be done inconsultation with management. Any recommendation to limit an enforcement response should be done with supervisory consultation. Supervisors are responsible for apprising the Program Managerifresource constraints are significantly impacting their ability to implement this guidance. ' Impact on the Regulated Community Enforcement personnel must evaluate the impact a particularaction would have on both the entity andthe regulated community. Personnel must question whether an enforcement action would bring about abehavioral change (toward complying with environmental laws) on both the entity and the regulated community. Personnel should question whether a particularenforcement action would act as a deterrent against improper action by the regulated community. This evaluation need not be done in every action, but shouldbe raised occasionally for discussion withmanagement.

c. Enforcement Options 

### Enforcementpersonnel shallconsider the full range ofenforcement options available and choose the type(s) of action which willachieve, ina fairmanner, full compliance with the dangerous waste laws and regulations. Actions will range from informalenforcement to pursuit ofcriminal sanctions. The goal ofthe chosen action should be to achieve compliance and deny any economicbenefit realizedby the entity. Informal Actions Informal action can take the form of averbal warning or noting of the violation during the inspection, or a Compliance Letter. When Compliance Letters are utilized, written confirmation bythe entity that compliance has been achieved isrequired. Administrative Actions Administrative actions include: (unilateral) Orders whichrequire compliance with laws or regulations, payment ofpenalty or both, ConsentAgreements, Permit Revocation or PermitDenial, Termination ofInterim Status, or Permit-by-Rule. ' Consent Agreements Consent Agreements include: Consent Orders, Memorandum ofUnderstanding or InterAgency Agreements (Public agencies). These lattertwo actions should be drafted to state they are formal actions. Using a ConsentAgreementis totally within the discretion of Ecology management and generallywillbe used only with public entities. Consent Agreements shouldbe done when compliance will be expedited. 

# • 3 Appendix C 3Judicial Actions Ecology may request the Office of the Attorney General to file ajudicial action in Superior Court. The EnforcementSection, Central Programs should be consulted for further guidance when consideringjudicial action. Criminal Actions When willful, knowing or grossly negligentviolations occur, Criminal Sanctions shall be considered. The Enforcement Section, Central Programs should be consulted for further guidance when considering criminal action. d. Selecting an EnforcementOption The enforcement optionis selectedby considering the discretion factors and the attached enforcement examples (Appendix C). Formal actions are generally appropriate for class 1violations. Formal enforcementrather than informal should always be issued when 1) There is an actual or-imminent threat to human health or the environment, and 2) The entity has been classified as a high priorityviolator (hpv) by enforcement personnel. Enforcement personnel should use the following criteria to designate high priority violators: 

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I i I' 

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### • Has caused actual exposure or a substantial likelihood ofrelease ofdangerous waste or dangerous waste constituents; or Is a chronic or recalcitrantviolator. Entities who have been found to have numerous Class I or Class II violations on more than three separate occasions shouldbe considered chronic, This can include instances where eitherEcology should have been apprised of a particular situation or cross programviolations exist. This does not preclude identifying an entity 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/orby failing to perform work as required by terms ofpermits, Notice ofDeficiency, or Order. The impactfrom this deviation would result in significant "slippage" in a schedule or a likelihood for potential for harm.; or . Substantially deviates from RCRA and 70.105 RCW statutory requirements. The EPAwillconsider enforcement against hpvs during hazardous waste program evaluations 

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Issuance of a formal action to an entitywho 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

4 Appendix C 4 

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e. as short a timeframe as possible; and (3) A message of the importance of complying with environmental law willbe communicated to the regulated community. Penalty Determination Guidelines



# • Consolidating Penalties (A penalty can be assessed perviolation or for groups of violations. This means that there can be multiple penalties issued against an entity inany one civilaction

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### In addition, a single action on the part ofthe entity may result in several violations. Penalties for these violations may be separated or combined.) 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 aviolation of a 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. During a hazardous waste inspection it is common to discover several instances of noncompliance with a single section of the regulations. For example discovery of30 drums ofhazardous waste in violation ofSection 173-303-200 could be interpreted to be 30 separate violations. The preferred approach in the hazardous waste program is to penalize them once for all the drums rather than issuing a separate penalty for each drum. There may be circumstances, however, where perdrum penalties are appropriate. A more likely scenario would be discovery of very egregious drum managementviolations in two separate yards of a single facilityresulting in the issuance of two separate penalties, one for each yard.
PerDay Violations Chapter 173-303 WAC allows per day penalties for hazardous waste management violations. Perday penalties are not usually necessary to obtain compliance with the regulations, however, they are an option available to enforcement personnel. Per day assessment ofpenalties should occur only when it is possible to specifically document the period ofnoncompliance. Staffshould also considerwhether there exists a major potentialfor harm, or whether a violatorhas been clearly recalcitrant in complying with other enforcement actions, in deciding whether to assess penalties on a per day basis.
f. Determination ofPenalty Amount When the decision is made to issue a.penalty, the penaltywill be assessed using the ranges identified below for each category ofviolation. Enforcement personnel should first consider the enfotcement discretion factors (Section 3b) and the program enforcement examples in Appendix C. Based upon this consideration each violation should get a high, medium, or low designation. Enforcement personnel should then 

# • 5 Appendix C 5choose a penalty amount within the range which isappropriate for the violation. Finally, personnel should evaluate individual violation assessments and the total penalty in light 

# C of the situation to assure a fair and equitable penalty.
Designation Class I Class II High $6,000 - 10,000 $3,000 - 6,000 Medium $3,000 - 6,000 $1,000 - 3,000 Low $1,000

- 3,000 $0 - 1,000

Developing Recommendations for Enforcement and Issuing the Action Once theviolation(s) has 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 entityinto compliance. The Recommendation should identify the logic used inrecommending a particular response. It should clearly identify whythe chosen action isappropriate and if apenalty is issued, whythat particular penalty is appropriate. In addition, the Recommendation should include the compliance timeframe the action will establish. 

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One goal ofdeveloping a Recommendation for Enforcementis to develop apriority system for enforcement ofvarious entities. The system**e~sures** the most significant violations and entity evaluations willprobably satisfy the criteria ofrequiring 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. Recommendationsfor enforcement are written from the inspector to the regional office 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 and/or the Technical and Policy Section (TAPS) before'enforcement actions are issued. Penalties for individual entities that exceed $25,000. require approvalby the program managerbefore they are issued. Penalties of this magnitude should be directed from the regional office supervisor to the TAPS. Representatives of the TAPS will review and initial the action and forward a single copy to the program manager for approval and issuance. Allenforcement actions should be prepared on approvedboilerplates

6 AppendixC 6 

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# • g. Timeframes for Enforcement Response



# • The timeframe for the response depends upon the type ofaction to be issued. In most instances, the timeframes established in the following table should be adhered to. National statistics suggest that approximately 10% of the enforcement cases willwarrant exceeding the suggested timeframes. Common reasons for exceeding the timeframes include limited stafftime and coordinationwith otherprograms or agencies. Violation discovery date is the date the enforcementpersonnel determine that a violation exists and finalized documentation (usable in court) is available or the first day after the evaluation which shows that a compliancedate established in a prior action has not been met. Wherever practical, all actions issued should require complianceby the entity within 90 days of the action. Deviations from this schedule may be necessary when an entityis required to construct such things as storage areas.

COMPLIANCEREACTION TYPE TIMETO ISSUANCE QUlRED (CalendarDays) (CalendarDays) ComplianceLetter 30-60 0-90 Administrative Actions , Penalty Only 0-25 30 - 90 N/A**0~25** 60 - 90 N/A Orderw/ or w/o Penalty 0-25 

### 45 -90 0-90**0~25** 60 - 90 0-90
Judicial referrals should be conducted in as expeditious a timeframe as possible. Enforcementpersonnel must immediately contact the Attorney General's Office when considering referring a case forjudicial action. The referral package shouldbe developed as quickly as possible, generallyin less than 90 days. h. Escalation Escalation of the enforcementresponse classification ofthe violator (from general toward critical) mustbe considered whenever an % is shown to be recalcitrant. Recalcitrant shall be described as instances where a particularviolation is discovered during more than one evaluation, when a handler has been found to have the same general classification ofviolations (i.e., poor containers & incorrect labeling ofcontainers), or where a lowerlevel enforcement action has been shown to be ineffective. 

# • 7 Appendix C 7