Sanitary Sewer Overflow Enforcement Options CWEA - September 2008 Mark Bradley Office of Enforcement State Water Resources Control Board
Jan 10, 2016
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.
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REGIONAL WATER QUALITY CONTROL BOARDS
9 Regional Water Quality Control Boards
Arranged by Hydrologic Basins
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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
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Why should we take Enforcement?
Our goal is not enforcement, it’s compliance. But without the threat of
enforcement, you cannot reasonably expect compliance.
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Why should we take Enforcement?
In other words,
if we’re not willing to enforce our regulatory programs, we should just go home.
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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
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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
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Appropriate Enforcement
TimelySimilar for similar violationsInforms the violator Results in return to complianceMay require remediation of damageServes as deterrentProgressive enforcement
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Informal Enforcement Actions
Verbal
Staff enforcement letter
Notice of Violation (NOV)
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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
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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
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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)
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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
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Enforcement for Violations of the SSO Permit (continued)
Violation:5. Spills
Enforcement Options:13267 Letter/Order, CAO, CDOIssuance of PenaltiesReferral to District Attorney or Attorney General
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Enforcement for Violations of the SSO Permit (continued)
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.
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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.
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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.
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Determining ACL Amounts
Statutory Minimums/Maximums
Factors to
ConsiderDischarge
Discharger
Economic
Benefit
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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
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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
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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.
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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
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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
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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
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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
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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
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Critical Elements for Structuring a Local Enforcement Program
The Regulatory Process
• Establish requirements
• Evaluate compliance
• Take appropriate enforcement in response to non-compliance
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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
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Evaluate Compliance
Other Agency Oversight
Self-Reporting
Compliance Inspections
Complaint Response
Monitoring waterways and beaches
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Take Appropriate Enforcement
TimelyConsistentInforms the violatorResult in return to complianceMay require cleanup or other remediationServes as deterrentRemoval of economic benefit
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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)
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Balance
Enforcement cannot protect water quality without a strong foundation of enforceable requirements and a reliable process for determining compliance with those requirements.
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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