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King County Policies, Procedures, Public Rules, and Interlocal Agreements

 

King County Industrial Waste Enforcement Response Plan

Document Code No.: PUT 8-12-1 (PR)
Department/Issuing Agency: Department of Natural Resources and Parks / Industrial Waste Program
Effective Date: September 15, 2008
Approved: /s/ Theresa Jennings
Type of Action: Superseding PUT 8-12 (PR), February 12, 1999

Signed Document (PDF, 749 KB)


1.0 SUBJECT TITLE: King County Industrial Waste Enforcement Response Plan

2.0 PURPOSE: To establish King County's philosophy and the general approach to enforcement actions and to ensure that violating conditions are corrected in a timely manner to ensure consistent treatment of King County's industrial dischargers; to eliminate economic advantages for violations; and to ensure that King County recovers expenses attributable to violations. Enforcement actions are meant to focus the efforts of dischargers on correcting violations. They are not intended as punitive measures. This Public Rule incorporates changes to implement the October 14, 2005 amendments to 40 CFR 403. The definition of Significant Industrial User is updated and enforcement level 6.5.12 has been added to accommodate the Middle Tier Significant Industrial User classification. The violation publication requirements have been altered.

3.0 ORGANIZATIONS AFFECTED:

3.1 Any person, meaning any individual, company, partnership, association, corporation, society, joint stock company, trust, estate, governmental entity, or any other legal entity or group, or their legal representatives, agents, or assigns discharging wastewater into the metropolitan sewer system.

3.2 King County Department of Natural Resources and Parks; Wastewater Treatment Division; Industrial Waste Program.

4.0 REFERENCES: Clean Water Act (33 U.S.C. 1251 et seq.); General Pretreatment Regulations (40 CFR 403); RCW 90.48; King County Code (K.C.C.) 28.84.060 (Ordinance No. 11034); and Industrial Waste Procedures Manual. This King County Public Rule is a continuation of Municipality of Metropolitan Seattle (METRO) Public Rule 12.93, Enforcement Response Plan. The METRO rule was approved by the Director of Water Pollution Control effective December 22, 1993, under the same water pollution abatement policy that is now a function of King County (K.C.C. 28.81.020). The King County Code may be accessed on-line at: www.kingcounty.gov. Laws of Washington may be accessed on-line at: http://leginfo.leg.wa.gov. The federal register and regulations may be accessed on-line at: www.archives.gov/federal-register/cfr/.

5.0 DEFINITIONS: In addition to the definitions listed in Section 5 of this Public Rule, all definitions included in K.C.C. 28.82.010 - .1000 (Appendix 9.3) are hereby adopted by reference.

5.1 "Confidence limit" shall mean the interval defined by the variability. (See below.) The upper boundary is used as the defining limit of accuracy and precision. A measurement below the confidence limit indicates uncertainty.

5.2 "Industrial user" or "user" shall mean a source or potential source of indirect discharge. The source shall not include "Domestic User" as defined in Appendix 9.3.

5.3 "Industrial waste" shall mean any liquid, solid, or gaseous substance, or combination thereof, resulting from any process of industry, government agency, manufacturing, commercial food processing, business, agriculture, trade, or research, including but not limited to the development, recovery, or processing of natural resources, leachate from landfills or other disposal sites, decant water, contaminated non-process water, and contaminated stormwater and ground water.

5.4 "Significant industrial user" shall mean any industrial users as defined in 40 CFR 403.3(t) including, but not limited to, all industrial users subject to Categorical Pretreatment Standards under 40 CFR 403.6 and 40 CFR Chapter I, Subchapter N, except as exempted by 40 CFR 403.3(v)(2) and any other industrial user that discharges an average of 25,000 gallons per day or more of process wastewater (excluding sanitary, noncontact cooling and boiler blow down wastewater) to the metropolitan sewerage system or contributes a process waste stream that makes up five percent (5%) or more of the average dry weather hydraulic or organic capacity of a particular treatment plant; or is designated as such by the County on the basis that the industrial user has a reasonable potential for adversely affecting the treatment plant's operation or violating any pretreatment standard or requirement (in accordance with 40 CFR 403.8(f)(6)). Per 40 CFR 403.3(v)(3), if an Industrial User meeting the criteria above has no reasonable potential for adversely affecting the POTW's operation or violating any pretreatment standard, King County may determine that such Industrial User is not a Significant Industrial User.

5.5 "Variability" shall mean the inherent error associated with analytical measurements or procedures.

6.0 POLICIES:

6.1 ENFORCEMENT RESPONSE PLAN. K.C.C. 28.84.060 requires that King County develop and implement an enforcement response plan that contains guidelines on how the county responds to instances of user noncompliance. These principles will guide the application of the enforcement procedures included in the Industrial Waste Procedures Manual. Should a conflict arise between K.C.C. 28.84.060 and the Enforcement Response Plan, the King County Code shall take precedence. Changes to the Enforcement Response Plan require the signature of the Director of the Department of Natural Resources and Parks (DNRP) and public review. The Industrial Waste Program will make changes to the Enforcement Procedures as needed, and these changes will be subject to an annual public notification period.

6.2 AUTHORITY. King County's authority to enforce federal, state, and local regulations relating to the discharge of industrial wastes to any one of King County's wastewater treatment plants is based on delegated authority by the Washington State Department of Ecology (WSDOE) and K.C.C. 28.84.060. The sections of the Code that pertain directly to enforcement are 28.84.060.N, "Violations," and 28.84.060.O, "Penalties and Enforcement." In accordance with RCW 35.58.360, actions to impose or enforce penalties may be brought in the superior court of the state of Washington in and for King County.

6.2.1 K.C.C. 28.84.060 establishes the DNRP Director, or his or her delegated agent, as the responsible party for taking enforcement action. The DNRP Director has delegated this authority in accordance with the Delegation of Authority for Industrial Waste Rules and Regulations. Enforcement actions shall be signed in accordance with the Delegation of Authority for Industrial Waste Rules and Regulations in effect at the time the enforcement action is issued (Appendix 9.1).

6.2.2 At this time, the Industrial Waste Program Manager is the delegated agent for the DNRP Director for all enforcement actions except Notices of Violation. Notices of Violation are signed by an Industrial Waste Investigator. In addition, the Industrial Waste Program Manager must have the approval of the DNRP Director before signing fines and assessments in excess of $100,000.

6.3 APPLICABILITY. This King County Enforcement Response Plan applies to all nondomestic (nonresidential) users contributing to the metropolitan sewerage system. Priority (emphasis) is given to those facilities issued King County Waste Discharge Permits or Discharge Authorizations. K.C.C. 28.84.060.B defines nondomestic users. The Code further defines such terms as "industrial waste," "industrial user," and "significant industrial user" in K.C.C. 28.82.010, "Definitions." For the purposes of clarity and consistency, references to industrial discharges, industrial users, companies, or dischargers and industrial wastes contained in the Enforcement Response Plan and Industrial Waste Enforcement Procedures are understood to refer to all nondomestic users as defined in K.C.C. 28.84.060.B.

6.4 TYPES OF TYPICAL VIOLATIONS. Enforcement actions in the following instances will be pursued by King County:

6.4.1 Discharge Violations

6.4.1.1 Results from King County samples show violations of King County's local industrial discharge limits or federal categorical limits.

6.4.1.2 Self-monitoring data shows violations have not been corrected.

6.4.2 Permit Violations

6.4.2.1 Dischargers fail to complete installation of pretreatment systems or other plant improvements required by King County.

6.4.2.2 Dischargers fail to abide by conditions of the discharge permit or authorization (e.g., not notifying King County of a violation).

6.4.3 Violations of K.C.C. 28.84.060

6.4.3.1 An observable violation of K.C.C. 28.84.060 occurs, such as discharging to a manhole without permission.

6.4.3.2 An industrial user violates any enforcement action (such as a compliance order or compliance timeline).

6.4.3.3 An industrial user violates any provision of K.C.C. 28.84.060 not otherwise covered by any more specific conditions of a permit or compliance order.

6.4.4 Reporting Violations

6.4.4.1 Dischargers fail to submit complete reports on time.

6.4.4.2 Dischargers falsify monitoring data or reports.

6.4.5 For enforcement purposes, the violations are classed as discharge, permit, reporting, or violations of K.C.C. 28.84.060 (Ordinance 11034). Examples of these violation classes are noted in Enforcement Responses for Industrial User Noncompliance (Appendix 9.2). Different enforcement procedures are used depending on the class of violation. The DNRP Director reserves the right to take any, all, or any combination of enforcement actions against a noncompliant user as defined in K.C.C. 28.84.060.O.2.i, "Remedies Non-exclusive."

6.5 LEVELS AND ESCALATING NATURE OF ENFORCEMENT RESPONSE. King County's enforcement actions include Notices of Violation (NOV), compliance orders, requirements for additional self-monitoring, assessment of Post Violation Inspection and Monitoring Program (PVIMP) charges, final notices, monetary penalties (fines), assessments for damage, suspension of permit or authorization, revocation of permit or authorization, termination of discharge, and emergency suspension of discharge. Penalties will be escalated if a discharge violation continues or becomes worse, if the discharger is not making a good-faith effort to correct the problem, or the discharger knowingly violates King County regulations. Following is a summary of King County's enforcement actions (complete definitions are shown in K.C.C. 28.84.060.J.8 and J.9, "Permits and Authorizations," and K.C.C. 28.84.060.O, "Penalties and Enforcement"):

6.5.1 NOV. Written notification of violation to the company. The notice includes a description of the violation and requires that the company respond within fourteen calendar days with a written explanation for the violation. For discharge violations, the company must resample and include results in the fourteen-day report.

6.5.2 PVIMP Assessment(s). Billing for additional sampling and inspections by King County required in order to investigate the reason for a violation or to ensure compliance. Additional PVIMP invoices may be sent as appropriate for the violation.

6.5.3 Increased Self-Monitoring Requirements. Permanent or temporary increase in the amount of self-monitoring required. This may be part of a compliance order or part of a notice of violation.

6.5.4 Final Notice. Notice that failure to complete actions such as filing a report, making upgrades to pretreatment systems, or subsequent violations will result in fines.

6.5.5 Compliance Orders. Order directing the discharger to come into compliance by taking or completing listed actions within a specified time period.

6.5.6 Monetary Penalties. Fines for violations. These civil penalties do not include any assessment for damages.

6.5.7 Assessment(s) for Damage. Assessments for the costs King County has incurred due to the violation and the monetary gains the discharger received from noncompliance. For example, assessments to recover costs for tracking down the violator, increased operational costs at King County's treatment plants (including such costs as increased biosolids disposal costs or National Pollutant Discharge Elimination System [NPDES] permit violation fines), the loss of state or federal funds to King County, or the money saved by the company when waste goes to the sewer instead of hazardous waste disposal.

6.5.8 Total Payment. Sum of the monetary penalties and assessment(s) for damages.

6.5.9 Suspension of Permit or Authorization. Order to cease discharge violations and take preventative action to stop violations, which may include suspension of nondomestic discharge to the sanitary sewer.

6.5.10 Revocation of Permit or Authorization and Termination of Discharge. Revocation of the right to use the sanitary sewer to dispose of nondomestic waste. This is the most severe penalty King County can impose.

6.5.11 Emergency Suspensions. Immediate suspension of a company's discharge when the discharge presents a danger to human health. Suspension of a company's discharge will occur in a time frame determined by King County after notification and an opportunity to respond when the discharge presents a danger to the environment or interferes with treatment plant operation.

6.5.12 Suspension or termination of Middle Tier Significant Categorical Industrial User status.

6.5.13 All enforcement actions, except NOVs, receive review by the entire Industrial Waste Program staff prior to issuance in order to help ensure consistency in enforcement.

6.6 ITEMS CONSIDERED WHEN DETERMINING ENFORCEMENT RESPONSE. Violations of discharge, permit, and/or other requirements may range from relatively minor violations (such as reports submitted a week late but having no effluent violations) to major violations, such as discharges that cause King County to have an NPDES violation or a decrease in biosolids quality. Each instance of noncompliance is a violation that is reviewed and appropriately addressed. The enforcement response to each violation is based on the severity and duration of the violation, the discharge history of the company, the enforcement history for the company, the good faith or culpability of the company, the potential or actual harm caused by the violation, and the Significant Noncompliance (SNC) status of the company. The enforcement procedures are designed to ensure that the proper enforcement response will be selected after considering the factors discussed below.

6.6.1 Severity and Duration of the Violation. Violations will be evaluated with respect to the applicable pretreatment standard (K.C.C. 28.82.040, "Applicable Pretreatment Standard"). Ratings of violations will reflect the relative magnitude of the violation. Minor violations are less than twice the concentration limit and cause no violation of the company's poundage limit. Mid-range violations are at least twice the concentration limit or cause the company to exceed its poundage limits. Major violations are at least 10 times the discharge limits or cause shock loading to the treatment system and violate poundage limits of the company's permit. For permit and K.C.C. 28.84.060 violations, the magnitude of the violation is evaluated with respect to the potential for the violation to cause a discharge violation. In addition, reporting violations also are evaluated based on whether the reports are late or will not be submitted at all.

6.6.2 Potential for Company's Waste to Cause a Problem. This is evaluated by determining the company's actual or permitted flow to the sewer system and if the waste contains non-compatible pollutants. (See the definition of compatible pollutants in K.C.C. 28.82.130.) The discharge of noncompatible pollutants and high volume discharges increase the potential for a company's waste to create a problem.

6.6.3 Discharge History of the Facility or Permitted Site. The more frequent the violations are over the previous three-year period, the more severe the penalty. Several violations in the preceding six-month period from the date of the current violation, or an acute problem in control of the pollutants in the discharge, places a discharger in SNC.

6.6.4 Enforcement History of the Facility or Permitted Site. Dischargers who have received enforcement actions within the last year will receive stiffer penalties. As a rule, second fines are at least double the first fine.

6.6.5 Good Faith Status of the Company. Companies which, following the receipt of an NOV, have corrected their discharge violations prior to King County's initial PVIMP inspection and sampling, may receive minimal additional enforcement action. If the problem has been corrected at the time of the investigation or the discharger has taken initiative to correct violations found in self-monitoring, this is taken as an indication of good faith. Companies are culpable when the cause of a violation was the result of a mistake, accident, or omission; when they knowingly continue a violation; or when they fail to establish appropriate systems to detect and prevent a violation. Increased culpability occurs in either of the following situations: (a) when a company knowingly violates a limit; and (b) when a company violates a limit due to negligence or ignorance of the violation, causing the violation to continue. Culpability also increases when King County must inform a discharger of a violation or trace the violation back to its source when self-monitoring should have detected the violation. King County will also evaluate whether the company has accurately reported its noncompliance and will evaluate the amount of previous enforcement communication with the company.

6.6.6 Potential or Actual Harm Caused by the Violation. King County will evaluate whether the discharge caused or could have caused an NPDES violation, a violation of regulatory standards for biosolids quality, shock loading at the treatment plant, harm to the receiving waters, or any health hazards at the treatment plant or in the collection system. King County also will evaluate whether the discharge caused or could have caused increased costs associated with biosolids reuse, effluent reuse, or discharge of effluent. The discharger will not be excused if the damage did not actually occur. The potential for damage will be evaluated.

6.6.7 Significant Noncompliance (SNC) Status. King County will review the company's violation and enforcement history to determine whether the company is in SNC. SNC criteria are those severe or chronic violations that include, but are not limited to, interference or pass through, reporting violations, and actions that adversely affect the operation or implementation of King County's Pretreatment Program. SNC is discussed in more detail in the Significant Noncompliance section of Industrial Waste Enforcement Procedures.

6.7 INDUSTRIAL WASTE PHILOSOPHY FOR DEALING WITH QUESTIONABLE VIOLATIONS. When a violation of an applicable pretreatment standard (limit) has occurred, but King County questions the accuracy of the testing method or new data brings the purpose or effectiveness of an established limit into question, King County recognizes that routine enforcement procedures may not be appropriate. While King County will issue an NOV for all violations, the questionable nature of the violation or limit will be considered in the enforcement response. Actions less than the minimum listed in the Enforcement Procedures may be used. As these situations arise, the Industrial Waste Program will develop procedures to ensure consistent treatment of all dischargers, let dischargers know that interim compliance is required, and show the U.S. Environmental Protection Agency (EPA) and WSDOE that we are working toward a solution. Procedures developed to address questionable violation trends may include innovative solutions, such as special studies of the parameter by affected industries.

6.8 PUBLICATION OF VIOLATIONS. In 1991, the policy for publishing violations was revised in order to maintain consistency with the July 1990 changes to the Federal General Pretreatment Standards. All violations occurring in the preceding six-month period and meeting the following criteria are published in both the Industrial Waste Pretreatment Quarterly and a newspaper of general circulation that provides public notice within the county.

6.8.1 All companies found in SNC will appear in the top tier of the ad.

6.8.2 All companies which have received assessments of monetary penalties or damages will be published in a second tier (those dischargers that were fined but were not in SNC). The components of the total payment (i.e., fine, economic gain, and costs to King County) will be specified.

6.8.3 All violations which were unique in nature and thus warranted special attention will appear in the last tier. This is a rarely used category.

6.9 DESCRIPTION OF ENFORCEMENT PROCEDURES. King County's enforcement procedures are detailed in Chapter 5 of the Industrial Waste Procedures Manual. These procedures contain the Penalty Determination Matrix (PDM) which includes the Discharge Violation Worksheet (DVW), the Permit Violation Worksheet (PVW), the Enforcement Response Table (ERT), and the Monetary Penalty Form (MPF). The procedures also contain the criteria for determining whether a discharger is in SNC. With the approval of the Industrial Waste Program Manager, these procedures may be changed as needed to improve the administration of King County's enforcement response and to comply with requirements of the EPA and the WSDOE. King County will notify dischargers of any changes made to the procedures during an annual public notification period.

7.0 PROCEDURES:

Action By: Action:
DNRP 7.1 When an Industrial Waste Investigator determines that a violation has occurred, the Investigator will respond to the violation and take the following steps:

7.1.1 Determine whether a discharge violation is above the confidence limit of the test and determine the SNC status of the company. (An NOV is the only enforcement taken for violations below confidence limits unless the company is in SNC.)

7.1.2 Take enforcement action whenever the violation puts the company in SNC.

7.1.3 Determine if an initial PVIMP inspection or sampling is needed for a permit violation or K.C.C. 28.84.060 violation.

7.1.4 Send an NOV (unless it is a self-monitoring violation).

7.1.5 Evaluate the discharger's 14-day report regarding the circumstances and actions taken to correct the violation, the resample results, and the PVIMP sampling and inspection results, where appropriate.

7.1.6 Determine for reporting violations whether the report is late or will never be submitted. Prepare a final notice of pending penalty and potential for SNC.

7.1.7 Determine whether the violation has been corrected or if additional enforcement action is needed to achieve or maintain compliance.

7.1.8 The above enforcement procedures also are followed when the discharger reports noncompliance for the same parameter or cause of violation in the company's self-monitoring reports for three out of four months. Since the permit requires that a company give a written explanation and resample within 14 calendar days of becoming aware of each self-monitoring violation, no NOV is sent. Enforcement action is prepared except in instances where the company is making satisfactory progress on a compliance order approved by King County.

DNRP 7.2 If no additional enforcement action is needed for maintaining compliance, complete a memo explaining why no further action is recommended and a letter informing the company of the outcome and the initial PVIMP charges. Circulate the memo and letter for review by the entire Industrial Waste Program staff.
DNRP

7.3 If additional enforcement action is needed for maintaining compliance:

7.3.1 Apply the PDM to determine appropriate additional enforcement action.

7.3.2 Complete the PDM with a DVW or PVW, depending on the type of violation (discharge, permit, K.C.C. 28.84.060, or reporting).

7.3.3 Tally the points from the violation worksheet(s) and use the ERT to determine compliance actions, PVIMP charges, increased self-monitoring, and range of fine.

7.3.4 If needed, use the steps for calculating monetary penalties in the Industrial Waste Procedures Manual, Section 5, 'Enforcement Procedures.'

7.3.4.1 Determine range of monetary penalty from the ERT.

7.3.4.2 Determine whether the middle of the designated fine range or higher is warranted by enforcement history or severity of violation.

7.3.4.3 Adjust for culpability.

7.3.4.4 Determine the economic gains to the company.

7.3.4.5 Determine the costs to King County.

7.3.4.6 Calculate the total payment = monetary penalty + economic gains + cost to King County.

Note: Appendix 9.2, 'Enforcement Responses for Industrial User Noncompliance,' outlines the types of violations and the investigation King County conducts for each, as well as a list of the normal range of enforcement actions King County may take in response to the violation. Other actions may be taken as provided by K.C.C. 28.84.060.

8.0 RESPONSIBILITIES:

8.1 The King County Department of Natural Resources and Parks, Industrial Waste Program, is responsible for the enforcement of this Public Rule.

9.0 APPENDICES:

9.1 Delegation of Authority for Industrial Waste Rules and Regulations

9.2 Enforcement Responses for Industrial User Noncompliance

9.3 K.C.C. 28.82.010 - .1000, Definitions