Common use of Culpability Clause in Contracts

Culpability. The Enforcement Policy states, “[h]igher liabilities should result from intentional or negligent violations as opposed to accidental, non-negligent violations. The test is what a reasonable and prudent person would have done or not done under similar circumstances.” A multiplier between 0.5 and 1.5 is to be used, with a higher multiplier for negligent behavior. This factor was given a multiplier value of 1.3 because of the Discharger’s repeated failure to implement appropriate erosion control BMPs prior to several forecasted storm events, despite multiple warnings from Board and City of Grass Valley staff. In addition, the SWPPP and Grading Plans submitted by the Discharger clearly state that erosion control BMPs would be installed and used on the Project. Board staff first inspected the Project on 26 March 2014 and informed the Discharger that erosion control BMPs are required on all disturbed soils during rain events. A follow-up inspection by Board staff on 23 April 2014 revealed that erosion control BMPs had still not been installed and Board staff once again informed the Discharger of the erosion control BMP requirements. On 24 April 2014, Board staff sent an email reminder to the Discharger prior to the rain event predicted for 25 April 2015 to ensure that the Discharger understood that the General Permit requires erosion control BMPs to be in place during the upcoming rain event. Follow-up inspections by the City of Grass Valley on 25 April 2014 (during a major storm event) found that the Discharger had still not installed erosion control BMPs and the City issued a Notice to Comply. The Discharger elected to not install erosion control BMPs prior to forecasted storm events despite several warnings from Board and City of Grass Valley staff, did not follow erosion control plans submitted with the SWPPP and Grading Plans, and violated the Permit conditions by not installing required erosion control BMPs prior to forecasted storm events. These inspections show that the Discharger was aware of the BMP deficiencies following the 26 March 2014 inspection and elected to not install erosion control BMPs prior to several subsequent rain events through 25 April 2014. Given the above, a culpability of 1.3 is appropriate.

Culpability. The Enforcement Policy statesDischarger constructed a Reverse Osmosis (RO) Plant to remove salt from its domestic water supply, “[h]igher liabilities should result provide higher quality drinking water to the inmates, and produce a higher quality effluent discharge from intentional the Facility. When the RO Plant is not operational or negligent violations as opposed not operating at its optimal condition, constituents that pose a concern to accidentalwater quality are discharged in concentrations that the Facility cannot properly treat. In a letter from Siemens’ project manager, non-negligent violationsSiemens observed in 2011 that debris that had been accumulating on the membrane bioreactor (MBR) modules. Siemens cautioned CDCR that the lack of maintenance and cleaning of the membranes could have damaged the membranes and reduced its long term integrity. Trash and debris was again observed during a 25 January 2013 inspection by a service technician. In a letter from Evoquo Water Technologies dated 24 July 2014, CDCR was once again cautioned that the membranes collected trash and debris. The test is what a reasonable and prudent person would have done or not done under similar circumstances.” A multiplier between 0.5 and 1.5 is to be used, with a higher multiplier for negligent behavior. This factor was given a multiplier value lack of 1.3 because operation of the Discharger’s repeated failure RO plant, coupled with the lack of proper cleaning of the membranes, have caused the modules to implement appropriate erosion control BMPs prior to several forecasted storm eventslose efficiency over a period of years, despite multiple warnings from Board and City of Grass Valley staff. In additioneventually, the SWPPP and Grading Plans submitted by the Discharger clearly state that erosion control BMPs would modules can no longer be installed and used on the Project. Board staff first inspected the Project on 26 March 2014 and informed the Discharger that erosion control BMPs are required on all disturbed soils during rain eventscleaned sufficiently to properly operate. A follow-up inspection by Board staff on 23 April 2014 revealed that erosion control BMPs had still not been installed and Board staff once again informed the Discharger of the erosion control BMP requirements. On 24 April 2014, Board staff sent an email reminder to the Discharger prior to the rain event predicted for 25 April 2015 to ensure that the Discharger understood that the General Permit requires erosion control BMPs to be in place during the upcoming rain event. Follow-up inspections by the City of Grass Valley on 25 April 2014 (during a major storm event) found that the Discharger had still not installed erosion control BMPs and the City issued a Notice to Comply. The Discharger elected to not install erosion control BMPs prior to forecasted storm events despite several warnings from Board and City of Grass Valley staff, did not follow erosion control plans submitted with the SWPPP and Grading Plans, and violated the Permit conditions by not installing required erosion control BMPs prior to forecasted storm events. These inspections show that the Discharger higher culpability factor is appropriate because CDCR was aware of the BMP deficiencies following risk of not properly maintaining the 26 March 2014 inspection membrane bioreactor modules and elected chose not to not install erosion control BMPs prior employ adequate measures and processes to several subsequent rain events through 25 April 2014prevent the accumulation of trash and debris which likely severely impaired the functionality and effectiveness of the membranes. Given the above, a culpability The compromised membranes prevented CDCR from adequately treating its wastewater thereby resulting in pollution to ▇▇▇▇▇ Drain. A factor of 1.3 is conservatively applied. The Regional Board Prosecution Team has engaged in several meetings with CDCR to discuss compliance, however, this compliance assistance process has been insufficient. CDCR staff expressed the desire to comply contending that they “have taken every step necessary to correct the deficiency.” (see Letter from ▇▇▇▇ ▇▇▇▇▇ dated January 28 2016). However, CDCR has not complied with key requirements and actions in the CAO which were prescribed to improve its wastewater treatment system. Despite the numerous attempts to work cooperatively with CDCR, the Discharger continues to pollute ▇▇▇▇▇ Drain by discharging wastewater that contains constituents which exceed the mandatory limits protective of ▇▇▇▇▇ Drain’s beneficial uses. A factor of 1.2 is conservatively applied. See the history of violation rationale for Violation 1. A factor of 1.4 is appropriate.. Therefore, the total penalty for the effluent limitation violations is calculated as:

Culpability. The Enforcement Policy statesDischarger constructed a Reverse Osmosis (RO) Plant to remove salt from its domestic water supply, “[h]igher liabilities should result provide higher quality drinking water to the inmates, and produce a higher quality effluent discharge from intentional the Facility. When the RO Plant is not operational or negligent violations as opposed not operating at its optimal condition, constituents that pose a concern to accidentalwater quality are discharged in concentrations that the Facility cannot properly treat. In a letter from Siemens’ project manager, non-negligent violationsSiemens observed in 2011 that debris that had been accumulating on the membrane bioreactor (MBR) modules. Siemens cautioned CDCR that the lack of maintenance and cleaning of the membranes could have damaged the membranes and reduced its long term integrity. Trash and debris was again observed during a 25 January 2013 inspection by a service technician. In a letter from Evoquo Water Technologies dated 24 July 2014, CDCR was once again cautioned that the membranes collected trash and debris. The test is what a reasonable and prudent person would have done or not done under similar circumstances.” A multiplier between 0.5 and 1.5 is to be used, with a higher multiplier for negligent behavior. This factor was given a multiplier value lack of 1.3 because operation of the Discharger’s repeated failure RO plant, coupled with the lack of proper cleaning of the membranes, have caused the modules to implement appropriate erosion control BMPs prior to several forecasted storm eventslose efficiency over a period of years, despite multiple warnings from Board and City of Grass Valley staff. In additioneventually, the SWPPP and Grading Plans submitted by the Discharger clearly state that erosion control BMPs would modules can no longer be installed and used on the Project. Board staff first inspected the Project on 26 March 2014 and informed the Discharger that erosion control BMPs are required on all disturbed soils during rain eventscleaned sufficiently to properly operate. A follow-up inspection by Board staff on 23 April 2014 revealed that erosion control BMPs had still not been installed and Board staff once again informed the Discharger of the erosion control BMP requirements. On 24 April 2014, Board staff sent an email reminder to the Discharger prior to the rain event predicted for 25 April 2015 to ensure that the Discharger understood that the General Permit requires erosion control BMPs to be in place during the upcoming rain event. Follow-up inspections by the City of Grass Valley on 25 April 2014 (during a major storm event) found that the Discharger had still not installed erosion control BMPs and the City issued a Notice to Comply. The Discharger elected to not install erosion control BMPs prior to forecasted storm events despite several warnings from Board and City of Grass Valley staff, did not follow erosion control plans submitted with the SWPPP and Grading Plans, and violated the Permit conditions by not installing required erosion control BMPs prior to forecasted storm events. These inspections show that the Discharger higher culpability factor is appropriate because CDCR was aware of the BMP deficiencies following risk of not properly maintaining the 26 March 2014 inspection membrane bioreactor modules and elected chose not to not install erosion control BMPs prior employ adequate measures and processes to several subsequent rain events through 25 April 2014prevent the accumulation of trash and debris which likely severely impaired the functionality and effectiveness of the membranes. Given the above, a culpability The compromised membranes prevented CDCR from adequately treating its wastewater thereby resulting in pollution to ▇▇▇▇▇ Drain. A factor of 1.3 is appropriateconservatively applied. The Regional Board Prosecution Team has engaged in several meetings with CDCR to discuss compliance, however, this compliance assistance process has been insufficient. CDCR staff expressed the desire to comply contending that they “have taken every step necessary to correct the deficiency.” (see Letter from ▇▇▇▇ ▇▇▇▇▇ dated January 28 2016). However, CDCR has not complied with key requirements and actions in the CAO which were prescribed to improve its wastewater treatment system. Despite the numerous attempts to work cooperatively with CDCR, the Discharger continues to pollute ▇▇▇▇▇ Drain by discharging wastewater that contains constituents which exceed the mandatory limits protective of ▇▇▇▇▇ Drain’s beneficial uses. A factor of 1.2 is conservatively applied.

Culpability. The Enforcement Policy states, “[h]igher liabilities should result from intentional or negligent violations as opposed to accidental, non-negligent violations. The test is what a reasonable and prudent person would have done or not done under similar circumstances.” A multiplier between 0.5 and 1.5 is to be used, with a higher multiplier for negligent behavior. This factor was given a multiplier value of 1.3 because of the Discharger’s repeated failure to implement appropriate erosion control replace or repair deficient BMPs prior to several forecasted storm eventsas required by the General Permit. On 18 September 2014, despite multiple warnings from both Water Board staff and City of Grass Valley staff. In addition, the SWPPP and Grading Plans submitted by the Discharger clearly state that erosion control BMPs would be installed and used on the Project. Board staff first inspected the Project and identified that several storm water BMPs were worn and in need of replacement or repair. The City of Grass Valley issued a Notice to Comply on 18 September 2014 to compel the Discharger to address BMP deficiencies. On 25 September 2014, the City of Grass Valley conducted a follow-up inspection during a rain event and found that BMP repairs were still needed and issued a Stop Work Order. Only after the City issued the Stop Work Order did the Discharger address the deficient storm water BMPs. The City of Grass Valley lifted the Stop Work order following another inspection on 26 March September 2014. Following a rain event, the City of Grass Valley conducted additional inspections on 28 October and 30 October 2014. These inspections revealed that there were additional BMPs that required maintenance or repair. According to the 30 October 2014 inspection, BMPs were scheduled to be repaired and informed the Discharger that erosion control additional BMPs are required deployed on all disturbed soils during rain events31 October 2014. A follow-up inspection by Board staff on 23 April 2014 revealed that erosion control BMPs had still not been installed and Board staff once again informed the Discharger of the erosion control BMP requirements. On 24 April 2014, Board staff sent an email reminder to the Discharger prior to the rain event predicted for 25 April 2015 to ensure that the Discharger understood that the General Permit requires erosion control BMPs to be in place during the upcoming rain event. Follow-up inspections conducted by the City of Grass Valley on 25 April 3 November 2014 (during a major storm event) found indicated that the Discharger site BMPs had still not installed erosion control BMPs and the City issued a been repaired. These inspections, Notice to Comply. The Discharger elected to not install erosion control BMPs prior to forecasted storm events despite several warnings from Board and City of Grass Valley staff, did not follow erosion control plans submitted with the SWPPP and Grading Plans, and violated the Permit conditions by not installing required erosion control BMPs prior to forecasted storm events. These inspections Stop Work Order show that the Discharger was aware of the BMP maintenance deficiencies following the 26 March 2014 inspection and elected to not install erosion control replace or repair the BMPs prior to several subsequent rain events through 25 April 2014until the Stop Work Order was issued. In addition, approximately one month later, follow-up inspections revealed that there were additional BMP maintenance violations. Given the above, a culpability of 1.3 is appropriate.

Culpability. The Enforcement Policy states, “[h]igher Higher liabilities should result from intentional or negligent violations as opposed to accidental, non-negligent accidental violations. The test is what a reasonable and prudent person would have done or not done under similar circumstances.” A multiplier between 0.5 and 1.5 is to be used, with a higher multiplier for negligent behavior. This factor The Discharger was given a multiplier value of 1.3 1.4 because of the Discharger’s repeated failure to implement appropriate erosion control BMPs prior to several forecasted multi-day storm events, despite multiple warnings from Board and City of Grass Valley staff. In addition, the SWPPP and Grading Plans submitted by the Discharger clearly state that erosion control These failures to implement BMPs would be installed and used on the Project. Board staff first inspected the Project on 26 March 2014 and informed the Discharger that erosion control BMPs are required on all disturbed soils during rain events. A follow-up inspection by Board staff on 23 April 2014 revealed that erosion control BMPs had still not been installed and Board staff once again informed the Discharger of the erosion control BMP requirements. On 24 April 2014, Board staff sent an email reminder led to the Discharger discharges of turbid water which could have been avoided had appropriate BMPs been in place prior to the rain event predicted for 25 April 2015 to ensure that the Discharger understood that the General Permit requires erosion control BMPs to be in place during the upcoming rain event. Follow-up inspections by the City of Grass Valley on 25 April 2014 (during a major forecasted storm event) found that the Discharger had still not installed erosion control BMPs and the City issued a Notice to Complyevents. The Discharger elected to not install erosion control BMPs prior to forecasted storm events despite several warnings from Board and City of Grass Valley staff, did not follow erosion control plans submitted with anticipate what a reasonable person would have and did not implement appropriate measures to avoid the SWPPP and Grading Plansviolations. The Discharger knowingly approved construction activities in the rainy season, allowed work to continue almost to the start of the storm event, and then violated the Permit conditions by not installing required erosion control BMPs prior to forecasted storm events. These In addition, because Board staff was so concerned about the site and the potential for discharge, ten inspections show were conducted between 16 October 2012 and 19 February 2013. Water Board staff expended much greater time and effort on this site than on any other site in recent memory; and repeatedly reminded Caltrans that it was out of compliance with Construction General Permit and Caltrans Storm Water Permit requirements. The inspection reports are summarized below: • 16 October 2012 - Board staff inspected the Discharger was aware Project site with Caltrans storm water staff. Board staff observed the contractor, ▇▇▇▇▇▇▇▇ Construction, conducting significant earth work in multiple areas of the BMP deficiencies following project. Some areas of the 26 March 2014 inspection project were mostly completed and elected to not install both sediment and erosion control BMPs prior had been implemented. However, large portions of the site were not protected with either erosion or sediment control BMPs. Board staff was very concerned about the eastern area of the Project where two large bridge abutments were under construction on the east and west sides of Mono Way. According to several subsequent rain events through 25 April 2014the construction schedule at the time of the inspection, these areas were not scheduled to be completed until November. Given Board staff attended a portion of a weekly construction meeting with Caltrans and its contractors and expressed concern about the above, a culpability lack of 1.3 is appropriateerosion control BMPs given the impending rainy season and the storm water problems experienced by Caltrans during its Stage 1 Sonora Bypass project in 2002.

Culpability. Violation 8: 1.4 A multiplier of 1.4 is assigned for this violation because the Discharger knew of the requirement and failed to effectively address the deficiency onsite. The Enforcement Policy statesDischarger submitted and certified SWPPPs via SMARTS on March 25, 2015 on April 30, 2019. Each SWPPP stated that designated waste collection areas would be selected on-site, that there would be an adequate number of containers with lids or covers, and that trash would be collected on a daily basis, especially during windy conditions. The SWPPPs also stated that solid waste would be removed as often as practical, and that trash receptacles would be secured. Additionally, each SWPPP referenced the requirements of Attachment C, Section B.2.f to contain and securely protect stockpiled waste material and provided BMPs to fulfill the requirement. BMPs identified in Section 3.2 Good Site Management “[h]igher liabilities should result Housekeeping” of the Site’s SWPPPs were material delivery and storage, stockpile management, solid waste management, spill prevention and control, and concrete waste management. QSP BMP inspection reports on February 7 and 20, 2019 stated that the front, which has been interpreted to be the north side of the Site, was very messy. The BMP inspection reports from intentional or negligent violations as opposed March 14, and 27, 2019 stated that there were no functioning BMPs at the Site and that the northern perimeter of the Site looked terrible and was totally unacceptable, requiring cleanup. The Discharger was therefore aware of requirement to accidentalconduct good housekeeping practices. On April 9, 2019 Regional Water Board staff conducted a non-negligent violationsfiler inspection at the Site and observed construction waste materials including plastic, brick, cardboard, loose sediment, and dried concrete and stucco throughout the Site. BMPs were not observed around waste materials. Such materials were located by a perimeter chain linked fence that did not have perimeter controls to prevent potential discharge of wastes to stormwater. On April 11, 2019, the Project Superintendent emailed photographs showcasing areas where cleanup activities were conducted including an unprotected wastes stockpile at the Site. The test QSP’s July 15, 2019 BMP inspection report reported that the northern side of the Site, facing Beach Avenue, continued to be absent of BMPs and was still very messy. During the Regional Water Board inspection on July 16, 2019, Regional Water Board staff observed poor housekeeping practices of construction materials throughout the northern, eastern, and western areas of the Site. Scattered dried concrete and stucco wastes were observed throughout the Site and in the vicinity of areas without perimeter controls. Loose stockpiles of construction materials, and plastic and cardboard wastes with concrete and stucco residue were documented on the ground without BMPs and various areas of the project Site. Trash and debris were also observed on the ground throughout the Site without BMPs to contain such waste materials. Regional Water Board staff observed various waste uncovered waste bin containers and some containers that were overflowing. Additionally, maintaining good housekeeping measures is what a reasonable and standard industry practice; therefore, the Discharger should have implemented necessary measures to prevent potential discharges of construction materials. A reasonably prudent person who applies for coverage under the General Permit would have done or not done necessary oversight and accountability measures in place to ensure the necessary BMPs were in place, as is expected of a reasonably prudent person who applies for coverage under similar circumstances.” the General Permit. Violation 9: 1.4 A multiplier between 0.5 and 1.5 of 1.4 is to be used, with a higher multiplier assigned for negligent behavior. This factor was given a multiplier value of 1.3 this violation because the Discharger knew of the Dischargerrequirement based on the project’s repeated failure to implement appropriate erosion control BMPs SWPPPs, prior to several forecasted storm eventsnotification by Regional Water Board staff, despite multiple warnings from and QSP inspection findings on BMP inspection reports between February 2019 and January 2020. The Regional Water Board and City of Grass Valley staff. In addition, the SWPPP and Grading Plans submitted by issued the Discharger clearly state that erosion control BMPs would be installed and used an NOV on the Project. Board staff first inspected the Project on 26 March 2014 and informed the Discharger that erosion control BMPs are required on all disturbed soils during rain events. A follow-up inspection by Board staff on 23 April 2014 revealed that erosion control BMPs had still not been installed and Board staff once again informed August 15, 2019, informing the Discharger of poor housekeeping violations during the erosion control Regional Water Board inspection on July 16, 2019. The Discharger provided a response to Regional Water Board that stated waste collection and removal was improved and that trash receptacles were scheduled for regular off haul. However, BMP requirementsinspection reports on October 18, and 31, November 8, and 15, 2019, stated that BMPs were absent along the western side, facing Del Rey Avenue, and required additional cleaning. On 24 April 2014BMP inspection reports on December 6, and 20, 2019 and January 3, and 9, 2020 stated that general During the January 10, 2020 inspection Regional Water Board staff sent observed unprotected waste materials throughout the western region of the Site without site management controls. As a result, some waste materials were tracked onto Del Rey Avenue. Regional Water Board staff also observed an email reminder to uncovered waste bin placed on Del Rey Avenue that was full. Additionally, maintaining good housekeeping measures is a standard industry practice; therefore, the Discharger prior should have implemented necessary measures to the rain event predicted prevent potential discharges of construction materials. A reasonably prudent person who applies for 25 April 2015 to ensure that the Discharger understood that coverage under the General Permit requires erosion control BMPs to be would have corrected the problem after receiving notification by the QSP and Regional Water Board staff and had necessary oversight and accountability measures in place during to ensure the upcoming rain event. Follow-up inspections by necessary BMPs were in place, as is expected of a reasonably prudent person who applies for coverage under the City of Grass Valley on 25 April 2014 (during a major storm event) found that the Discharger had still not installed erosion control BMPs and the City issued a Notice to Comply. The Discharger elected to not install erosion control BMPs prior to forecasted storm events despite several warnings from Board and City of Grass Valley staff, did not follow erosion control plans submitted with the SWPPP and Grading Plans, and violated the Permit conditions by not installing required erosion control BMPs prior to forecasted storm events. These inspections show that the Discharger was aware of the BMP deficiencies following the 26 March 2014 inspection and elected to not install erosion control BMPs prior to several subsequent rain events through 25 April 2014. Given the above, a culpability of 1.3 is appropriateGeneral Permit.