sanitary sewer overflow enforcement options cwea - september 2008 mark bradley office of enforcement...

Sanitary Sewer Overflow Enforcement Options

CWEA - September 2008

Mark BradleyOffice of Enforcement

State Water Resources Control Board

Collection Systems Training - Sept 20082

State Water Resources Control BoardRegional Water Quality Control Boards

Discharges RegulatedActual and Threatened Discharges to Surface Waters or Land

• Waste Treatment Plants and Collection Systems

• Industrial Sites

• Agriculture and Food Processing

• Storm Water Discharges

Underground Storage Tanks

Landfills

Mining Waste

Etc.


REGIONAL WATER QUALITY CONTROL BOARDS

9 Regional Water Quality Control Boards

Arranged by Hydrologic Basins


Enforcement

We’ll Cover Two Areas –

Water Board Enforcement – what we do, how you can engage us, and what to expect if you’re subject to enforcement

Local Enforcement Programs – elements you should expect to have in an effective local enforcement program


Why should we take Enforcement?

Our goal is not enforcement, it’s compliance. But without the threat of

enforcement, you cannot reasonably expect compliance.


Why should we take Enforcement?

In other words,

if we’re not willing to enforce our regulatory programs, we should just go home.


Potential Violations of the SSO Permit

1. Enrollment2. Preparation of SSMP3. Required Monthly Reporting

Spills No spill certification

4. Accuracy of Monthly Reporting

5. Spills


Checking compliance during an inspection

Verify enrollment in SSO PermitCheck availability of SSMPVerify maintenance per SSMP or other maintenance schedulesVerify collection system spill reporting

OES reportsRegional Board recordsFacility log booksSpill reporting forms/complaints


Appropriate Enforcement

TimelySimilar for similar violationsInforms the violator Results in return to complianceMay require remediation of damageServes as deterrentProgressive enforcement


Informal Enforcement Actions

Verbal

Staff enforcement letter

Notice of Violation (NOV)


Formal Enforcement Actions

Notice to ComplyTechnical Reports and Investigations

13267, 13383Time Schedule Order (TSO)

13300- Regular TSO13308 – TSO with stipulated penalties

Cleanup and Abatement Order (CAO)Cease and Desist Order (CDO)Administrative Civil Liability (ACL/penalty)Referral to District Attorney or Attorney General


Enforcement Action TypesFuture Compliance vs. Past Violations

Actions that direct future compliance

Notice to Comply (NTC)

13267 Letters, CAOs, CDOs

Time Schedule Orders – 13300, 13308

Revision of WDRs

Actions that address past violations

Rescission of WDRs

ACL (penalty)

Referral to District Attorney or Attorney General


Enforcement for Violations of the SSO Permit

Violations:1. Enrollment2. Preparation of SSMP3. Required Monthly Reporting

Enforcement Options:13267 Letter/Order requiring a reportCleanup and Abatement OrderCease and Desist OrderIssuance of Penalties (will be simplified when the permit is revised)


Enforcement for Violations of the SSO Permit (continued)

Violation:4. Inaccurate or Fraudulent

Monthly Reporting

Enforcement Options:13267 Letter/Order, CAO, CDOIssuance of Penalties (will be simplified when the permit is revised)Referral to District Attorney or Attorney General



Violation:5. Spills

Enforcement Options:13267 Letter/Order, CAO, CDOIssuance of PenaltiesReferral to District Attorney or Attorney General



Note: Once a 13267 Letter/Order, CAO, or CDO are issued, there are additional actions that may be taken for violations of those orders. In particular, penalties for violation of these orders are relatively simple.


Referrals to the Attorney General

Appropriate for most serious violations

Allows for greater Penalties (2 to 10 times higher)

AG may also seek injunctive relief (e.g. restraining order, preliminary injunction, or permanent injunction)

Injunctive relief may be appropriate in emergency situations, or where a discharger has ignored enforcement orders or does not have the ability to pay a large penalty.


Coordination with DA or US Attorney

District Attorneys, City Attorneys, USEPA, or U.S. Attorneys may seek civil or criminal penalties under their own authority for some of the same violations a Water Board pursues. A request by a Water Board is not required. A Water Board can request prosecution or investigation and should cooperate with a prosecutor, but the criminal action is not controlled by or the responsibility of the Water Board . Not an official referral.


Determining ACL Amounts

Statutory Minimums/Maximums

Factors to

ConsiderDischarge

Discharger

Economic

Benefit


Administrative Civil Liability under the SSO Permit

Special Considerations – the Water Boards must consider the Enrollee’s efforts to contain, control, and mitigate SSOs including whether:

i) the Enrollee has complied with the requirements of this Order, including requirements for reporting, developing and implementing a SSMPii) the Enrollee can identify the cause or likely cause of the discharge eventiii) there were no feasible alternatives to the discharge (see order for specifics)iv) the discharge was exceptional, unintentional, temporary, and caused by factors beyond the reasonable control of the Enrollee


Administrative Civil Liability under the SSO Permit (continued)

Special Considerations continued:v) whether the discharge could have been prevented by the exercise of reasonable control described in a certified SSMP

vi) the sanitary sewer system design capacity is appropriate to reasonably prevent SSOs

vii) the Enrollee took all reasonable steps to stop and mitigate the impact of the discharge as soon as possible


Economic BenefitWhat is Economic Benefit?

An economic benefit is any savings or monetary gain derived from the acts or failure to act that resulted in the violation.

Why consider Economic Benefit?Polluters should not profit from environmental violationsLevel playing field - the cost of doing businessMay be statutorily required

ACL should always substantially exceed the Economic Benefit. Otherwise, dischargers should just wait until you catch them.


Settlement / Appealof Enforcement Actions

Settlement of ACLsComplaint Issued - Board Hearing Within 90 days

Reduction of the Amount

Supplemental Environmental Projects

Compliance Projects

Board Actions may be petitioned to the State Board within 30 days of issuance

Appeal to the courts


Supplemental Environmental Projects

What is a SEP?A project that enhances the beneficial uses of the waters of the State, provides a benefit to the public at large, and would not otherwise be required of the discharger.

May suspend some of all of the ACL amount (subject to statutory limitations)Must go above and beyond obligation of dischargerMust have connection or “nexus” to violationCan require much staff time to oversee


Compliance ProjectsWhat is a Compliance Project?

A project that is designed to address problems related to the violation and bring the discharger back into compliance in a timely manner.

Unlike SEPs, Compliance Projects are “otherwise required of discharger”.Can be require much staff time to overseeMust usually be additive to original ACL amountIn certain, limited situations the ACL monies can be used to bring the facility back into compliance


Additional Issues to Consider

Environmental Crimes TaskforcesMultiple agencies – federal, state and local

Organized by DA, AG or US Attorney

Citizen SuitsNotice of intent to sue under the Clean Water Act

60 day warning to regulatory agency


Enforcement Items to Watch ForNotice of ViolationNotices to ComplyAny Order Directing Action

Requirements to provide information pursuant to CWC 13267Time Schedule OrderCleanup and Abatement OrderCease and Desist Order

Administrative Civil Liability Complaint


Critical Elements for Structuring a Local Enforcement Program

The Regulatory Process

• Establish requirements

• Evaluate compliance

• Take appropriate enforcement in response to non-compliance


Establish Requirements

1. Usually based on local authority to set conditions and requirements or permit certain activities, though may derive authority from State or Federal laws and regulations

2. Requirements should be clear and have the consequences of violation clearly specified

3. May be self-implementing, or may depend on permitting or other permissive approach

4. Should provide self-reporting or inspection authority5. Should include funding mechanism if existing funding not

available


Evaluate Compliance

Other Agency Oversight

Self-Reporting

Compliance Inspections

Complaint Response

Monitoring waterways and beaches


Take Appropriate Enforcement

TimelyConsistentInforms the violatorResult in return to complianceMay require cleanup or other remediationServes as deterrentRemoval of economic benefit


Enforcement Program ElementsActions that direct future compliance

Time schedule orders/directives

Limitations on future development/building permits

Increased accountability

Increased inspection frequency

Actions that address current or past violations

Stop work orders

Issuance of penalties

Threat of criminal enforcement (DA, Taskforces)


Balance

Enforcement cannot protect water quality without a strong foundation of enforceable requirements and a reliable process for determining compliance with those requirements.


Enforcement ContactsRegional Water Board Enforcement CoordinatorsState Water Board’s Office of EnforcementCal/EPA and other State AgenciesUSEPALocal DA/Taskforces

Mark BradleyOffice of EnforcementState Water Resources Control [email protected](916) 341-5891

mailto:[email protected]

sanitary sewer overflow enforcement options cwea - september 2008 mark bradley office of enforcement...

Documents

collection systems training

threat of enforcement

areas water board enforcement

attorney general slide

past violations actions

similar violations

sso permit violations

potential violations