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 Prohibitions III.F (of the 2007 Order) and III.E (of the 2012 Order) prohibited discharge of untreated sewage to waters of the United States. By discharging to waters of the United States, the discharges rendered the prohibitions ineffective in their essential functions. This represents a “major” deviation from the requirement based on the Enforcement Policy. PENALTY FACTOR VALUE DISCUSSION Based on Table 2 of the Enforcement Policy, a factor of 0.15 applies to these six SSOs due to the Potential for Harm score of “5” and the “major” deviation from requirement. Adjustment for High Volume Discharges $10 The largest of these six SSOs was 3,162 gallons. This is not considered a “high volume discharge.” Therefore, a $10 per gallon liability is appropriate. Initial Liability $12,243 December 6, 2008: $1,500 = (0.15 x 0 x10) + (0.15 x 1 x 10,000) November 1, 2009: $1,500 = (0.15 x 0 x10) + (0.15 x 1 x 10,000) November 7, 2010: $1,500 = (0.15 x 0 x10) + (0.15 x 1 x 10,000) December 19, 2010: $4,743 = (0.15 x 2,162 x10) + (0.15 x 1 x 10,000) November 24, 2011: $1,500 = (0.15 x 0 x10) + (0.15 x 1 x 10,000) February 2, 2014: $1,500 = (0.15 x 0 x10) + (0.15 x 1 x 10,000) Harm or Potential Harm to Beneficial Uses for Discharge Violations 1 Harm or Potential for Harm: minor A “minor” potential for harm is selected for the January 25, 2008, SSO because the impacts fit the Enforcement Policy definition for minor harm (“low threat to beneficial uses [i.e., no observed impacts but potential impacts to beneficial uses with no appreciable harm]”). There were impacts to the REC1 beneficial uses of the Pacific Ocean, but the discharge was diluted with high wet weather flows and quickly dispersed into the ocean. Moreover, actual recreational use is typically less during wet weather. Physical, Chemical, Biological, or Thermal Characteristics (Degree of Toxicity) 3 For the January 25, 2008, SSO, an “above moderate” degree of toxicity is selected because the sewage discharged was not treated, was potentially toxic to aquatic organisms, and contained bacteria at levels exceeding human health standards. Therefore, the discharge posed an above moderate risk to potential receptors. Susceptibility to Cleanup or Abatement 1 The January 25, 2008, SSO occurred during wet weather when less than 50 percent of the SSO was amenable to cleanup or containment. Once the discharge entered the ocean, the ocean current prevented cleaning up or containing the untreated sewage. Final Potential for Harm Score 5 A value of 5 (1+3+1) applies to the January 25, 2008, SSO.