Adjustments for Discharger Conduct. Culpability 1.0 For the six SSOs, a neutral culpability factor is appropriate because the Discharger is responsible for the operation and maintenance of its collection system pipelines. However, the SSOs were not caused by intentional or negligent behavior. Cleanup and Cooperation 1.0 For the six SSOs, a neutral cleanup and cooperation factor is appropriate because the Discharger cooperated during investigations. History of Violations 1.0 For the six SSOs, a neutral history of violations factor is appropriate because the Discharger has no history of enforcement due to SSO violations. Total Base Liability $33,102 The total base liability is determined by multiplying the total initial liability by each applicable factor relating to the Discharger’s conduct. Ability to Pay and Continue in Business No adjustment The ability of a discharger to pay the recommended administrative civil liability is determined by its revenues and assets. The Discharger has an annual operating budget of $1.5 million for fiscal year 2017/18. The proposed liability will not affect the Discharger’s ability to continue operation and maintenance of its system. Economic Benefit Minimal Pursuant to Water Code section 13385, subdivision (e), civil liability, at a minimum, must be assessed at a level that recovers the economic benefit, if any, derived from the acts that constitute a violation. The Discharger incurred minimal economic benefit as a result of the six SSOs. Other Factors as Justice May Require Maximum Liability $220,680 Water Code section 13385 allows up to $10,000 for each day in which a violation occurs, plus $10 for each gallon exceeding 1,000 gallons discharged and not cleaned up. Therefore, the maximum liability reflects six SSOs totaling 21,118 gallons discharged to surface water and six days of violations.
Adjustments for Discharger Conduct. Culpability 1.0 The Discharger has retained the services of a Qualified SWPPP Developer and Practitioner who is responsible for advising the Discharger on what BMPs are required to be installed. Based on communication with the Discharger and the BMP installation contractor, the Discharger intended to install BMPs but failed to execute a contract prior to the first rain event in October 2021. Therefore, a neutral adjustment factor of 1.0 is appropriate. Step 4: Adjustments for Discharger Conduct: History of Violations 1.0 The Central Valley Water Board has not previously issued any Administrative Civil Liability Orders against this Discharger. Therefore, a neutral adjustment factor of 1.0 is appropriate. Step 4: Adjustments for Discharger Conduct: Cleanup and Cooperation 1.0 Following the 25 October 2021 inspection and resulting NOV, the Discharger exhibited the level of cleanup and installation of BMPs expected. Therefore, a neutral adjustment factor of 1.0 is appropriate. Steps 1-4: Total Base Liability for Violation #1 $11,200 The base liability is calculated as the initial liability multiplied by each of the above three factors. ($11,200 x 1.0 x 1.0 x 1.0 = $11,200) Violation 2 – Failure to implement erosion control BMPs on active areas in violation of the Construction General Permit Inspections conducted by the Project’s Qualified Storm Water Pollution Prevention Plan Professional (QSP) and follow-up inspections by the City and Board staff show that the site did not have adequate erosion control BMPs on disturbed soil areas between 18 October 2021 (first day or significant rain for the season) and 17 November 2021. The Project was likely inactive following the late October 2021 storm events; however, the Prosecution team is electing to assess violations for not protecting active disturbed soils areas during with adequate erosion control BMPs only during rain events. Inactive areas are considered in violation every day that they are not protected, regardless of rainfall, and would result in a significantly higher number of days in violation, and therefore, a higher penalty. Attachment D, section E.3, Sediment Control, in the Construction General Permit states: Risk Level 2 dischargers shall implement appropriate erosion control BMPs (runoff control and soil stabilization) in conjunction with sediment control BMPs for areas under active construction. Board Staff alleges that the Discharger was in violation of this requirement on days when greater than 0....
Adjustments for Discharger Conduct. Culpability 1.2 A score of 1.2 (above neutral) is appropriate because the Discharger did not timely maintain and return to service its 9-million-gallon equalization storage tank, T-130, which had been taken out of service for maintenance in 2016. The Discharger could have prevented the bypass if the tank had been returned to service in a timely manner or if the Discharger had provided an alternative means to handle the same storage capacity while the tank was out of service.
Adjustments for Discharger Conduct. Culpability 1.0 Neutral is selected because the discharge resulted despite exercise of reasonable care to check multiple times that all valves were closed prior to grouting of the pipe. The discharge occurred from a valve that was reverse threaded; undocumented, and located on a drained, unpressurized “dead” pipe. Cleanup and Cooperation 1.0 Neutral is selected because the Discharger responded to the cellular concrete discharge in a reasonable and timely manner. The Discharger cooperated with oversight agencies, representatives of the impacted golf course, and the surrounding community. The Discharger was able to recover 164 cubic yards (or 33,124 gallons) of cellular concrete within 15 days, voluntarily conducted cleanup activities in the following 4 weeks, and continued to monitor the Creek with direction and guidance from oversight agencies. These actions are reasonably expected considering the severe nature of the material discharged. History of Violations 1.0 Neutral is selected because, although the Discharger has been the subject of prior Water Board enforcement actions for discharges from inadequate best management practices and sanitary sewer discharges, the discharge of cellular concrete during pipe decommissioning is a unique violation. Total Base Liability $200,130 Each applicable factor, relating to the Discharger’s conduct is multiplied by the initial liability amount of $200,130 for the violation to determine the Total Base Liability Amount. Ability to Pay and Continue in Business No adjust- ment The Discharger has the ability to pay the proposed liability. According to its website, annual operating revenue exceeds $400 million. The Regional Water Board has no evidence that the Discharger would be unable to pay the final liability shown below or that the liability amount would cause undue financial hardship. Economic Benefit $1,340 The Discharger may have realized some economic benefit by avoiding minor costs associated with reviewing plans, inspecting the pipeline, and possibly staff training. It is estimated that economic benefit would be less than $1,500 considering the following costs for personnel time for the aforementioned activities: • 1 assistant engineer @ $50/hour for 2-hour full system inspection = $100 • 1 construction superintendent @ $62.50/hour for 2-hour thorough review = $120 PENALTY FACTOR ASSESS- MENT DISCUSSION • 5 field staff @ $56/hour for 4-hour training = $1,120 Other Factors as Justice May Require Staff Costs Increa...
Adjustments for Discharger Conduct. Culpability 1.1 A score of 1.1 (above neutral) is appropriate because Shell failed to improve its solids removal practices despite Water Board staff pointing out the need for such improvements in a December 2014 inspection report. In addition, for eight consecutive months, the inflow solids mass to the pond exceeded the outflow mass from the pond,8 indicating excess sediment deposition. The high flows in January and February 2017 likely scoured the sediment deposits, resulting in the effluent limit violations. Cleanup and Cooperation 1 A score of 1 (neutral) is appropriate because Shell complied with both permits’ monitoring and reporting requirements following the violation. In addition, Shell implemented the following corrective actions to reduce TSS and comply with Permit requirements: Installed one additional centrifuge; Doubled attendants at centrifuges; Supplemented dredging by removing bottom sediments with narrow probes attached to pumps and hoses; Increased solids removal by increasing change-out rates at granular activated carbon (GAC) vessels; Lengthened backwash time at each GAC vessel to optimize solids removal; and Added TSS sampling points upstream of effluent to monitor conditions.
Adjustments for Discharger Conduct. Culpability 1.0 A neutral culpability multiplier of 1.0 is appropriate because the discharge was unplanned and there is no evidence that the Discharger had prior indication that the blow-off valve would break. The Discharger reported that the valve was installed in 1962 and had no history of leaks or breaks in the segment that broke. The Discharger, however, did not provide the expected life span of the pipe.
Adjustments for Discharger Conduct. Culpability 1.1 For this violation, a higher culpability is appropriate because the operator failed to flush an offline chlorine contact channel per standard practice after it had been treated with super-chlorinated water. As a result, the channel was put back online with higher than normal levels of hypochlorite which could not be fully neutralized by the concurrent bisulfite doses. Upon discovery of the error, Discharger staff responded with adjustments to bisulfite dosing. Cleanup and Cooperation 0.9 For this violation, a credit of 0.9 from neutral is appropriate because the Discharger installed an additional alarm to provide operators with earlier notification of chlorine residuals approaching zero. Also, the Discharger installed level sensors in the channels to improve operator ability to detect flows in the channels. No additional credit is provided for the following measure because it is required by R2-2013-0029: The Discharger was reasonably responsive to Regional Water Board staff requests for information after discharge event as required by R2-2013-0029. The Discharger also took reasonable and necessary measures in response to the operator error cause of the partially dechlorinated secondary treated wastewater discharge. These actions include disciplinary action against the operator who failed to follow standard procedures. The Discharger changed the standard procedures to require inspection of all offline contact channels before placing them online.
Adjustments for Discharger Conduct. Penalty Factor Score Discussion Culpability 1.2 A score of 1.2 (above neutral) is appropriate because a reasonable and prudent discharger would have ensured that its selenium processing unit and procedures were sufficient to ensure compliance with its NPDES Permit’s effluent limits. History of Violations 1.1 A score of 1.1 is appropriate because the Facility has a history of violations, as demonstrated by the following enforcement orders: • Order No. R2-2021-1001: $9,000 penalty for March 2017 and April 2018 NPDES Permit effluent limit violations; and • Order No. R2-2018-1001: $86,000 penalty for January and February 2017 NPDES Permit effluent limit violations. 1 The Water Boards interpret Water Code section 13385, subdivision (c)(1) the same as Clean Water Act section 309(d). (Wat. Code, § 13372 (requiring state provision be construed to ensure consistency with the federal program requirements); Atlantic States Legal Foundation, Inc. x. Xxxxx Foods, Inc. (11th Cir. 1990) 897 F.2d 1128 (holding that a violation of a monthly average is a violation for each day of the month); Natural Resources Defense Council Inc. v. Texaco Refining and Marketing, Inc. (3d Cir. 1993) 2 F.3d 493 (assessing penalties for a violation of a monthly average based on the number of days of facility was in operation).)
