Recent Enforcement Recent Enforcement ActionsActions

Greg BroderickGreg BroderickDowney Brand LLPDowney Brand LLP

gbroderick@downeybrand.comgbroderick@downeybrand.com916/444-1000916/444-1000

BACWA Wet Weather Management WorkshopBACWA Wet Weather Management WorkshopMAY 28, 2008MAY 28, 2008

The EnforcersThe Enforcers

RegulatorsRegulators*US EPA*US EPA*Regional Board*Regional Board*Office of Enforcement, SWRCB*Office of Enforcement, SWRCB*District Attorneys, Circuit Prosecutors*District Attorneys, Circuit Prosecutors

NGOsNGOs*SF Baykeeper *SF Baykeeper

-Sick of Sewage-Sick of Sewage*Northern California River Watch*Northern California River Watch

-Recent Citizen Suits-Recent Citizen Suits

The ComplaintsThe Complaints

US EPAUS EPA*Unlawful discharge*Unlawful discharge

*Proper operation and maintenance*Proper operation and maintenance

*Sewer System Overflows (SSOs)*Sewer System Overflows (SSOs)*Inflow and Infiltration*Inflow and Infiltration

Regional BoardRegional Board*Information Download and Weekly Progress Report*Information Download and Weekly Progress Report*Required Independent Audit*Required Independent Audit

Office of EnforcementOffice of Enforcement*Detailed Pre-Enforcement Report*Detailed Pre-Enforcement Report*Future Enforcement Anticipated*Future Enforcement Anticipated

The PenaltiesThe Penalties

US EPAUS EPA▪ ▪ Administrative OrderAdministrative Order

*33 USC *33 USC §§§§ 1318 & 1319 1318 & 1319*Focuses on Inflow and Infiltration*Focuses on Inflow and Infiltration

SSMP on SteroidsSSMP on Steroids

ProcessProcess*Essentially Unreviewable *Essentially Unreviewable ((Rueth v. U.S. E.P.A.Rueth v. U.S. E.P.A., 13 F.3d 227 , 13 F.3d 227 (7(7thth Cir. 1993) Cir. 1993)

If you think the order overreaches, either comply If you think the order overreaches, either comply or defendor defend yourself against a civil enforcement yourself against a civil enforcement action in federal courtaction in federal court

CollaborationCollaboration*Sit down with EPA and work out an order you can live with*Sit down with EPA and work out an order you can live with

The Penalties, Cont.The Penalties, Cont.

Regional and State BoardsRegional and State Boards Audit RequirementAudit Requirement

*Complete examination of WWTP, including design*Complete examination of WWTP, including design

*Audit of Collection Systems (including satellite systems) *Audit of Collection Systems (including satellite systems)

Fines LikelyFines Likely*Report recommends “appropriate enforcement action.”*Report recommends “appropriate enforcement action.”

ProcessProcess*Less clear than EPA’s approach*Less clear than EPA’s approach*Challengeable by petition- to State Board or writ *Challengeable by petition- to State Board or writ actionaction

NGO ActionNGO Action

Citizen Suit EnforcementCitizen Suit Enforcement*33 U.S.C. § 1365 permits citizen groups to step in *33 U.S.C. § 1365 permits citizen groups to step in where government has not.where government has not.*Only formal enforcement precludes a citizen suit*Only formal enforcement precludes a citizen suit*Injunctive Relief, up to $32,500 per day per violation, *Injunctive Relief, up to $32,500 per day per violation, and attorneys’ fees.and attorneys’ fees.

““Model” Settlement AgreementModel” Settlement Agreement*Looks similar to the EPA Administrative Order*Looks similar to the EPA Administrative Order

Los Angeles and San Diego were approx. $1 Los Angeles and San Diego were approx. $1 billionbillion*Costs and fees can be extraordinary*Costs and fees can be extraordinary Riverwatch: $20,000 penalty, $480,000 in fees & Riverwatch: $20,000 penalty, $480,000 in fees & costscosts

What to Do…What to Do…

Be Careful: It could happen to youBe Careful: It could happen to you*SASM is essentially a “wrong place, wrong time” case*SASM is essentially a “wrong place, wrong time” case

Pay Attention to your PermitPay Attention to your Permit*Review all the terms of your draft permit*Review all the terms of your draft permit

*Eliminate conflicting or duplicative terms*Eliminate conflicting or duplicative terms

*Work with staff to avoid impossible or unclear terms*Work with staff to avoid impossible or unclear terms

Comply with Reporting RequirementsComply with Reporting Requirements*Failing to comply creates problems with public and *Failing to comply creates problems with public and regulatorsregulators

*Can limit your potential defenses (Bypass: 40 CFR §122.41)*Can limit your potential defenses (Bypass: 40 CFR §122.41)

What To Do, cont…What To Do, cont…

Make reporting easy for your staffMake reporting easy for your staff*Wallet cards or a clear, easy-to-follow written *Wallet cards or a clear, easy-to-follow written

procedure procedure

Review EPA Administrative Order and CompareReview EPA Administrative Order and Compare*Conduct a self-audit to see how you stack up*Conduct a self-audit to see how you stack up

Revise and Implement Your SSMPRevise and Implement Your SSMP*Better to do it on your time-frame and budget than *Better to do it on your time-frame and budget than someone else’ssomeone else’s

Know your neighborsKnow your neighbors*Understand what contributing agencies are doing*Understand what contributing agencies are doing

What To Do, cont…What To Do, cont…

Get “outside eyes” on your permitGet “outside eyes” on your permit**Saving a little money now could cost big money Saving a little money now could cost big money laterlater

Engage EnforcersEngage Enforcers Prepare your BoardsPrepare your Boards

*Build regular collection system repair/replacement *Build regular collection system repair/replacement into your long term budgets and rate increasesinto your long term budgets and rate increases

Recent Enforcement Recent Enforcement ActionsActions

Greg BroderickGreg BroderickDowney Brand LLPDowney Brand LLP

BACWA Wet Weather Management WorkshopBACWA Wet Weather Management WorkshopMAY 28, 2008MAY 28, 2008