Common use of Deviation from Requirement Clause in Contracts

Deviation from Requirement. major A major deviation from requirement occurs when the requirement has been rendered ineffective (e.g., a discharger disregards the requirement or the requirement is rendered ineffective in its essential functions). Discharge Prohibition III.F of the 2007 Order prohibited discharge of untreated sewage to waters of the United States. By discharging to waters of the United States, the discharge rendered the prohibition ineffective in its essential functions. This represents a “major” deviation from the requirement based on the Enforcement Policy. Based on Table 2 of the Enforcement Policy, a factor of 0.15 applies to the January 25, 2008, SSO due to the Potential for Harm score of “5” and the “major” deviation from requirement. Adjustment for High Volume Discharges $2 The Enforcement Policy allows for a per-gallon liability adjustment for high-volume discharges, such as large sewage spills. The January 25, 2008, SSO was 132,710 gallons and is considered a “high volume discharge.” Therefore, a $2 per gallon PENALTY FACTOR VALUE DISCUSSION liability, rather than a $10 per gallon liability, results in an appropriate penalty and sufficient deterrent for this discharge. Initial Liability $42,513 January 25, 2008, SSO: $42,513 = (0.15 x 131,710 x 2) + (0.15 x 2 x 10,000) Total Initial Liability (All Violation Groups) $99,028 The total initial liability is the sum of the initial liabilities for the four groups of violations above. $99,028 = $11,272 + $33,000 + $12,243 + $42,513 Adjustments for Settling Respondent Conduct7 Culpability 1.0 For the 10 SSOs, a neutral culpability factor is appropriate because, although the Settling Respondent is responsible for the operation and maintenance of its collection system pipelines, the SSOs were not caused by intentional or negligent behavior.