Multiple Day Violations. Pursuant to the Valley Station WDRs, the Discharger was required to submit timely monitoring reports. Between June 15, 2010 and December 31, 2017, the Discharger consistently failed to submit timely Monthly Monitoring Reports resulting in a total of 2080 days of late Monthly Monitoring Reports. The Discharger also did not submit six Monthly Monitoring Reports, which resulted in 180 days of violations. Each Monthly Monitoring Report can be assessed up to 30 days of violation. Violations under Water Code section 13268 are assessed on a per day basis. However, the violations at issue qualify for the alternative approach to penalty calculation under the 2010 Enforcement Policy (page 18). Under the 2010 Enforcement Policy, violations that last more than thirty (30) days, can have a daily assessment that is less than the calculated daily assessment provided that it is no less than the per day economic benefit, if any, resulting from the violation. For these cases, the Regional Water Board must make express findings that the violation: (1) is not causing daily detrimental impacts to the environment or the regulatory program; or (2) results in no economic benefit from the illegal conduct that can be measured on a daily basis; or (3) occurred without the knowledge or control of the violator, who therefore did not take action to mitigate or eliminate the violation. Here, the Regional Water Board Prosecution Team finds that the Discharger’s failure to submit Monthly Monitoring Reports is not causing daily detrimental impacts to the environment or the regulatory program. There is no evidence that the Discharger’s late and missing reports impacted the environment on a daily basis, since submitting these reports does not result in immediate changes to practices that could be impacting water quality. There is no daily detrimental impact to the regulatory program because the Discharger submitted many of the Monthly Monitoring Reports, albeit not in a timely manner. Due to the nature of the case, using the minimum days generated from the Multiple Day approach is appropriate, resulting in an assessment of 81 days for both late and missing reports.
Multiple Day Violations. The Enforcement Policy provides that for violations lasting more than 30 days, the Prosecution Team may adjust the per day basis for civil liability if certain findings are made and provided that the adjusted per day basis is no less than the per day economic benefit, if any, resulting from the violations. An alternate approach to penalty calculation does not apply for the alleged violation.
Multiple Day Violations. The Prosecution Team determined that the period of time for which operations and maintenance fell below an acceptable level was from the date of the previous potable water discharge (March 18, 2020) through the date of the discharge at issue in this action. This represents approximately 859 days of alleged violation, which was adjusted downward, upon express findings that the alleged daily violation of inadequate operation and maintenance did not cause daily detrimental impacts to the environment. As allowed by the Enforcement Policy, the first 30 days of alleged violation are assessed individually, and every fifth day for days 30 through 60 are assessed as a single day. After day 61 of an ongoing alleged violation, the remaining days can be collapsed in 30-day periods, provided that findings are expressly made that there was not a daily economic benefit to the alleged violation. The 859 days of alleged violation in this case were therefore collapsed to multiple 30-day periods after the 60th day of alleged violation. This results in 62 days of alleged violation, which was considered appropriate based on the actions taken prior to the discharge incident, the increased effort needed to inspect this part of the facility, and the likelihood that a visual inspection would have detected the leak.
