Current through Register Vol. 24-18, September 15, 2024
(1) General. The council establishes four types of enforcement
action in order to provide the council with a range of responses to apparent
violations of a site certification agreement or the laws and rules enforced by
the council. The range allows the chair or the council to choose an approach
which it determines, in its discretion, to be best suited in light of the
seriousness of an apparent violation, the potential danger to humans or the
environment, the willingness and ability of the violator to make required
corrections, and the speed with which corrective action should be taken.
(2) Emergency action by chair.
(a) Emergency action is appropriate when the chair or chair's
designee believes that the nature of an apparent violation requires action too
swiftly to allow for deliberation and decision by the full council or that
action is required pending the completion of other enforcement action.
(b) The chair of the council or the chair's designee is
authorized to take immediate action to halt or eliminate any imminent or actual
substantial danger to health or welfare of persons or the environment resulting
from violation of law or of terms of the site certification agreement,
including the release of pollutants from facilities sited under
chapter
80.50 RCW. The chair
may:
(i) Order the immediate termination of an endangerment or an
endangering release and the immediate suspension of a PSD, NPDES, or other
permits issued by the council, or order the immediate commencement of
corrective action;
(ii) Notify appropriate agencies that protective measures are
required immediately to safeguard public health and safety;
(iii) Request the prosecuting attorney of an affected county or
the attorney general to take immediate enforcement action for violations of
certification agreements or permits pursuant to
RCW 80.50.150(6).
(c) The council shall consider any emergency action at a
regular or special meeting as soon as practical after the action is taken. It
may adopt, rescind, or modify emergency action and may take other enforcement
action as specified in this rule. The council retains jurisdiction to maintain
or modify emergency action until the circumstances requiring the action are
cured to the council's satisfaction or until other enforcement actions
supersede the emergency action, whichever first occurs.
(d) If feasible, the council shall allow the subject of
emergency action to present its views prior to adopting, affirming, or
modifying the action.
(3) Notice of incident and request for assurance of
compliance.
(a) A notice of incident is appropriate when the council
believes that a violation has occurred; that it is being corrected quickly and
effectively by the violator; that the violation caused no substantial danger to
humans or the environment; and that a penalty assessment does not appear to be
appropriate in light of the seriousness of the violation or as an incentive to
secure future compliance.
(b) Whenever the council has probable cause to believe that any
term or condition of a certificate agreement or permit has been violated, the
council may serve a notice of incident and request for assurance of compliance
upon the certificate holder. Within thirty days after service of the notice,
the certificate holder shall provide the council with a report of the incident
and assurance of compliance, including appropriate measures to preclude a
recurrence of the incident. The council shall review the assurance of
compliance. It may close out the matter by resolution or take such further
action as it believes to be necessary.
(4) Notice of violation.
(a) A notice of violation is appropriate when the council
believes: That a violation has occurred; that a violation is not being timely
or effectively corrected; that a violation may cause a substantial risk of harm
to humans or the environment; or that a penalty may be appropriate as an
incentive to future compliance.
(b) Whenever the council has probable cause to believe that a
violation of any term or condition of a certificate agreement or permit has
occurred, the council may serve upon the certificate holder a notice of
violation and may include the assessment of a penalty pursuant to
RCW 80.50.150(5) or RCW 74.90.431 if the violation is of the Washington Clean Air Act. The notice shall
specify the provisions of law or rule or the certificate agreement or permit
which are alleged to have been violated and shall include a requirement that
corrective action be taken.
(c) Review procedure. The certificate holder named in a notice
of violation may appeal the notice to the council and it may seek remission or
mitigation of any penalty.
(i) A request for mitigation or remission of a penalty must be
filed within fifteen days after service of the notice of violation. A decision
upon a request for remission or mitigation of a penalty is an administrative
decision which the council may make in its discretion.
(ii) An appeal of a notice of violation must be filed within
thirty days after service of the notice of violation. The appeal is an
application for an adjudicative proceeding under
RCW 34.05.410. It must be in writing, timely
filed in the offices of the council, and state the basis of the contention and
exactly what change or remedy is sought from the council. Unless the
application is denied or settled, the council shall conduct an adjudicative
proceeding upon the challenge pursuant to
chapter
34.05 RCW.
(iii) Any penalty imposed in a notice of violation shall be due
and payable thirty days after the following: Service of the notice of
violation, if no review is sought; service of the council's decision upon
remission or mitigation, if no appeal is made; or service of the council's
final order on review of an appeal of a notice of violation. If the penalty is
not paid when due, the council shall request the attorney general to commence
an action in the name of the state to recover the penalty pursuant to
RCW 80.50.150.
(5) Air emission violations. Consistent with
RCW 70.94.422, all council enforcement actions
and penalties for all air emission violations shall be consistent with
RCW 70.94.332,
70.94.430,
70.94.431(1) through
(7), and
70.94.435. The council may enter
such orders as authorized by
chapter
80.50 RCW regarding air
pollution episodes or violations, as set forth in WAC
463-78-230.
(6) NPDES permit violations. In addition to the provisions of
this chapter, council enforcement actions related to noncompliance with or
violations of NPDES permits administered by the council shall be consistent
with RCW 80.50.150,
chapter
90.48 RCW, and chapter
463-76 WAC.
(7) Judicial enforcement.
(a) Judicial enforcement is available through
chapter
80.50 RCW. It is
appropriate when the council believes that judicial action may be of
substantial assistance in securing present or future compliance or resolution
of the underlying problem.
(i) The council may request the attorney general or the
prosecuting attorney of any county affected by a violation to commence civil
proceedings to enforce the provisions of
chapter
80.50 RCW, pursuant to
RCW 80.50.150(6).
(ii) The council may request the prosecuting attorney of any
county affected by a violation to commence criminal proceedings to enforce the
provisions of
chapter
80.50 RCW, pursuant to
RCW 80.50.150(6).
(b) The council may also secure judicial enforcement of its
rules or orders pursuant to
RCW 34.05.578.
Statutory Authority:
RCW 80.50.040(1) and (12).
04-21-013, amended and recodified as §
463-70-070, filed 10/11/04,
effective 11/11/04. Statutory Authority:
RCW 80.50.040(1). 94-16-031,
§ 463-54-070, filed 7/26/94, effective 8/26/94. Statutory Authority:
RCW 80.50.040. 91-03-090, § 463-54-070,
filed 1/18/91, effective 2/18/91. Statutory Authority:
RCW 80.50.040(1). 81-11-011
(Order 81-3), § 463-54-070, filed 5/13/81; 78-07-036 (Order 78-3), §
463-54-070, filed 6/23/78.
