• 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 staff and enforcement officials ("enforcement personnel") iri their decision-making process. The guideline

will help ensure that a logical, fair and effective state enforcement process occurs toward

acts of non-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

will delineate the state's enforcement authority and provide internal operating guidance

for determining categories of violation and the associated timely and appropriate

enforcement response.

2. Authority

Under the provisions of RCW 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.

RCW 70.105.090 makes certain violations a gross misdemeanor 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 70.105A 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 in the process is to evaluate and classify the violation(s) irrespective of any

Appendix C 1
other circumstances which may exist. The second step requires enforcement personnel to C~

evaluate discretion factors in order to select an appropriate enforcement action. The '

latter analysis further delineates what appropriate level of enforcement should be taken.

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 violations are

those which either result, or could result in an imminent threat to 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

treatment, storage or disposal facility (TSDF); (2) prevent releases of hazardous waste or

constituents both 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

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 evaluated to determine the

penalty amount. Discretion factors for consideration are: Information relative to

congressional or legislative requirements, the risk posed by 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 particular violation(s) is a statutory requirement. Violations of

specific statutory requirements should receive very high priority for enforcement

EnvironmentallHealth Risk

To evaluate the risk posed 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 potential threat to human health or the environment would be posed by this waste or

the violation?

Compliance HistorylDegree 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 the entity been

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

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enforcement action.) Has the entity complied with prior enforcement actions? How

quickly did the entity correct violations noted either during or prior to the inspection?

What economic benefits are being accrued to the owner/operator by continued violation?

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 Regulated Community

Enforcement personnel must evaluate the impact a particular action would have on both

the entity andthe 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. 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, ina 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 entity.

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 Compliance 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. '

Consent Agreements

Consent Agreements include: Consent Orders, Memorandum of Understanding or InterAgency 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.

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Judicial Actions

Ecology may request the Office of the Attorney General to file a judicial action in

Superior Court. The Enforcement Section, Central Programs should be consulted for

further guidance when considering judicial action.

Criminal Actions

When willful, knowing or grossly negligent violations occur, Criminal Sanctions shall be

considered. The Enforcement Section, Central Programs should be consulted for further

guidance when considering criminal action.

d. Selecting an Enforcement Option

The enforcement option is selected by considering the discretion factors and the attached

enforcement examples (Appendix C). Formal actions are generally appropriate for class

1 violations. Formal enforcement rather 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 priority violator (hpv) by enforcement personnel.

Enforcement personnel should use the following criteria to designate high priority

violators:

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Has caused actual exposure or a substantial likelihood of release of dangerous

waste or dangerous waste constituents; or

Is a chronic or recalcitrant violator. Entities who have been found to have

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 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/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 .

Substantially deviates from RCRA and 70.105 RCW statutory requirements.

The EPA will consider enforcement against hpvs during hazardous waste program

evaluations

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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

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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.

Penalty Determination Guidelines

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Consolidating Penalties

(A penalty can be assessed per violation or for groups of violations. This means that

there can be multiple penalties issued against an entity inany one 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.) 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.

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

noncompliance with a single 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. 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 per drum penalties are appropriate.

A more likely scenario would be discovery of very egregious drum management violations

in two separate yards of a single facility resulting in the issuance of two separate

penalties, one for each yard.

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 available to enforcement personnel. Per day

assessment of penalties 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.

f. Determination of Penalty Amount

When the decision is made to issue a .penalty, the penalty will be assessed using the

ranges identified below for each category of violation. 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 5
choose a penalty amount within the range which is appropriate 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 the violation(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 entity into

compliance.

The Recommendation should identify the logic used in recommending a particular

response. It 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. 0

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

system for enforcement of various entities. The system e~sures 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.

Recommendations for 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 approval by the program manager before 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. All enforcement

actions should be prepared on approved boilerplates

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• g. Timeframes for Enforcement Response

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The timeframe for the response depends upon the type of action 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 will warrant

exceeding the suggested timeframes. Common reasons for exceeding the timeframes

include limited staff time and coordination with other programs or agencies. Violation

discovery date is the date the enforcement personnel 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 entity within 90

days of the action. Deviations from this schedule may be necessary when an entity is

required to construct such things as storage areas.

COMPLIANCE REACTION TYPE TIME TO ISSUANCE QUlRED

(Calendar Days) (Calendar Days)

Compliance Letter 30-60 0-90

Administrative Actions ,

Penalty Only

0-25 30 - 90 N/A

0~25 60 - 90 N/A

Order w/ 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.

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

considering referring a case for judicial action. The referral package should be

developed as quickly as possible, generally in less than 90 days.

h. Escalation

Escalation of the enforcement response classification of the violator (from general toward

critical) must be considered whenever an % is shown to be recalcitrant. Recalcitrant

shall be described as instances where a particular violation is discovered during more

than one evaluation, when a handler has been found to have the same general

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

where a lower level enforcement action has been shown to be ineffective.

• 7 Appendix C 7