Section 220-150-080. Penalties and enforcement.

(1) Purpose. The department may issue a verbal warning, notice of correction, or notice of civil penalty up to twenty-seven thousand five hundred dollars for each day of a continuing violation of the requirements of ballast water management regulations pursuant to RCW 77.120.070. Each and every such violation will be a separate and distinct violation. The department may also seek criminal penalties where warranted.

(2) Notice of correction.

(a) In general. If, in the course of carrying out their duties under chapter 77.120 RCW or this chapter, a department employee becomes aware that a vessel owner or operator is not in compliance with applicable laws and rules enforced by the department, the department may issue a notice of correction as provided in RCW 43.05.100 to the vessel owner or operator.

(b) Content. A notice of correction, at a minimum, will include:

(i) A description of the condition that is not in compliance, and the text of the specific section or subsection of the applicable state law or rule;

(ii) A statement of what is required to achieve compliance;

(iii) The date and time by which the department requires compliance to be achieved;

(iv) Notice of the means to contact any technical assistance services provided by the department; and

(v) A description of when, where, and from whom to request an extension of time to achieve compliance for good cause.

(c) Context. A notice of correction is not a formal enforcement action, is not subject to appeal, and is a public record.

(d) Compliance. If the department issues a notice of correction, it shall not issue a civil penalty for the violations identified in the notice of correction unless the responsible party fails to comply with the notice.

(3) Notice of penalty.

(a) In general. If, in the course of carrying out their duties under chapter 77.120 RCW or this chapter, a department employee becomes aware that a vessel owner or operator is not in compliance with applicable laws and rules enforced by the department, the department may issue a notice of penalty as provided in RCW 43.05.110 to the vessel owner or operator.

(b) Conditions. The department may issue a notice of penalty without first issuing a notice of correction under subsection (2) of this section to the vessel owner or operator where:

(i) The vessel owner or operator has previously been subject to an enforcement action for the same or a similar type of violation of the same statute or rule or has previously been given a notice of correction for the same or similar type of violation of the same statute or rule;

(ii) Compliance is not achieved by the date established in a previously issued notice of correction, whereupon every day's continuance thereafter will be a separate and distinct violation;

(iii) The violation has a probability of, or actually resulted in, the discharge of ballast water and/or sediments that do not meet the requirements set forth in WAC 220-150-040, 220-150-043, 220-150-050, or 220-150-070; or

(iv) The violation was committed by a business that employs fifty or more employees on at least one day in each of the preceding twelve months.

(c) Context. A notice of penalty is a formal enforcement action, is subject to appeal, and is a public record.

(d) Compliance. If the department issues a notice of penalty, it shall calculate a civil penalty for the violation(s) as provided in subsection (4) of this section.

(4) Calculation and payment of civil penalties.

(a) In general. The department will assess civil penalties for each separate and distinct violation for each day of a continuing violation of the requirements of ballast water management regulations.

(b) Base penalty. There are three base civil penalties:

(i) Two thousand dollars for violations that are not related to or do not result in the discharge of ballast water that does not meet open sea exchange or discharge performance standards;

(ii) Five thousand dollars for failing to comply with a notice of correction issued under subsection (2) of this section; and

(iii) Five thousand dollars for violations that result in a discharge of ballast water that does not meet open sea exchange or discharge performance standards.

(c) Level of intent. Evidence of intent to violate the laws and rules governing ballast water and sediment management may result in an increase in the base penalty up to twenty-seven thousand five hundred dollars for each separate and distinct violation for each day of a continuing violation. Evidence includes, but is not limited to:

(i) Intention. In making a determination of intent, the department will consider, but not be limited to, the following considerations: The vessel owner or operator knowingly violated state laws and rules; whether precautions were taken to avoid the violation; and/or whether an inspection, warning, notice of correction, or enforcement action was served on the violator prior to the violation. For this factor, up to double the base penalty may be added.

(ii) Cooperation. The department will consider whether the violator did or did not make any attempt to correct the problem. Timeliness of action(s) and/or ignoring or evading agency contacts or directives will determine whether the penalty will be increased. For this factor, up to double the base penalty may be added.

(iii) Previous violation(s). The department will consider whether the violator has previous violations of a ballast water rule or regulation as documented in an enforcement action. The department may consider company organizations and assignment of operational responsibilities when evaluating previous violations. A substantially larger penalty will result if the violator has a history of violations with adverse impacts or the potential for adverse impacts or that shows a pattern of ignoring the rules or the act. Enforcement actions for the purposes of this section will include notices of penalty, the amounts of those civil penalties, and criminal citations when those enforcement actions are associated with ballast water violations. For this factor, up to quadruple the base penalty may be added.

(d) Quality and quantity of risk. Evidence showing the potential or actual discharge of high risk ballast water or sediment may result in an increase in the base penalty up to twenty-seven thousand five hundred dollars for each separate and distinct violation for each day of a continuing violation. Evidence includes, but is not limited to:

(i) Vessels carrying high risk ballast water and/or sediment listed under in WAC 220-150-035. For this factor, up to double the base penalty may be added.

(ii) Volume of ballast water and sediment discharged or potentially discharged. For this factor, up to quadruple the base penalty may be added.

(e) Payment. Unless a timely appeal is filed, all civil penalties imposed must be paid to the department within thirty days after the date of the written notice imposing the civil penalty. If a timely appeal is filed, then all civil penalties imposed must be paid upon the completion of all administrative and judicial review proceedings and the issuance of a final notice affirming the penalty in whole or in part.

(f) Failure to pay. Any determination not timely contested is final and may be reduced to a judgment enforceable in any court with jurisdiction. Where the department prevails, using any judicial process to collect a penalty under this section, the department shall also be awarded its costs and reasonable attorneys' fees.

(5) Appeals.

(a) In general. A person who is subject to a notice of penalty shall have the rights provided by this section to request an adjudicative proceeding to contest the notice. No person other than the recipient of the notice or the recipient's legal representative shall have standing to request an adjudicative proceeding. The adjudicative proceeding shall be in compliance with provisions of chapter 34.05 RCW, the Administrative Procedure Act, except as modified herein by the department.

(b) Timing for request. An adjudicative proceeding to contest a notice of penalty must be requested no later than twenty days from the date of service of the notice. To be timely, the request must be physically received by the department director in Olympia, Washington, during normal business hours on or before the twentieth day following the date of service of the order, except that if the twentieth day falls on a Saturday, Sunday, or state holiday, then the request for hearing shall be timely if received on the next business day. The person requesting an adjudicative proceeding may prove that it was timely requested by obtaining a written receipt of service from the department director, or by providing an affidavit showing personal service on the department director, or by a U.S. mail return receipt requested service showing receipt by the department on or before the last day set by this rule.

(c) Manner and content of request. Each request for adjudicative proceeding shall substantially comply with this subsection.

(i) The request shall be in writing;

(ii) The request shall identify the notice of penalty that the person seeks to contest. This can be done by reference to the number of the notice, by reference to the subject and date of the notice, or by reference to a copy of the notice attached to the request;

(iii) The request shall state the grounds upon which the person contests the notice of penalty. If the person contests the factual basis for the notice, the person shall allege the facts that the person contends are relevant to the appeal; and

(iv) The request shall identify the relief that the person seeks from the adjudicative proceeding by specifying whether the person asks to have the notice vacated, or provisions of the notice corrected.

(6) Coordination with United States Coast Guard (USCG). The department will report state violations, penalties and enforcement actions taken on vessels, as requested by cooperative agreement, to the appropriate sector representative of the USCG. The department will also report suspected federal violations to the USCG.

(7) Other laws. These regulations are in addition to any other state or federal laws related to ballast water management.

[Statutory Authority: RCW 77.12.047, 77.120.030, 77.120.040, and 77.120.070. WSR 09-14-052 (Order 09-110), § 220-150-080, filed 6/25/09, effective 7/26/09.]

RCW 77.12.047, 77.120.030, 77.120.040, and 77.120.070. WSR 09-14-052 (Order 09-110), § 220-150-080, filed 6/25/09, effective 7/26/09.

Rules

220-150-040,220-150-043,220-150-050,220-150-070,220-150-035,