Other Factors as Justice May Require. The costs of investigation and enforcement are “other factors as justice may require,” and could be added to the liability amount. The Central Valley Water Board incurred over $37,500 (250 hours at a statewide average of $150/hour) in staff costs associated with the investigation and enforcement of the violations alleged herein. The Prosecution Team, in its discretion, is not recommending an increase in the Total Base Liability amount in consideration of these costs incurred as the proposed liability amount serves as a sufficient general and specific deterrent against future violations.
Other Factors as Justice May Require. The Enforcement Policy allows for the costs of investigation and enforcement to be considered under other factors as justice may require. To date, the Los Angeles Water Board Prosecution Team has incurred $16,976 in staff costs associated with the investigation, preparation, and enforcement of the violations. This represents approximately 153 hours of staff time devoted to this matter. No attorneys’ fees are included in this calculation. The Los Angeles Water Board Prosecution Team finds that it is appropriate to increase the Combined Total Base Liability Amount by $16,976 in consideration of investigation and enforcement costs incurred in prosecuting this matter. Increasing the Combined Total Base Liability Amount in this manner serves to create a more appropriate deterrent against future violations.
Other Factors as Justice May Require. Staff Costs No adjustment The Prosecution Team did not consider staff costs in determining the final proposed liability amount. Maximum Liability $232 Million Water Code section 13385 allows up to $10,000 for each day in which a violation occurs and $10 for each gallon exceeding 1,000 gallons discharged and not cleaned up. The maximum liability calculated based on 23.1 million gallons and 59 days of violations is as follows: $232 Million = (23,100,000 gallons – 1,000 gallons) x $10/gallon + (59 days x $10,000/day) Minimum Liability $15,000 Water Code section 13385 requires a mandatory minimum penalty of $3,000 for each serious violation. There were five serious violations subject to mandatory minimum penalties (i.e., three maximum daily and two average monthly violations). Thus, the minimum liability is $15,000.
Other Factors as Justice May Require. The Enforcement Policy provides that if the Regional Water Board believes that the amount determined using the above factors is inappropriate, the amount may be adjusted under the provision for “other factors as justice may require.” The Enforcement Policy includes the costs of investigation and enforcement as “other factors as justice may require,” that could be added to the liability amount. In this case, the Prosecution Team has elected not to pursue staff costs. The Total Base Liability remains $282,500.
Other Factors as Justice May Require. Regional Water Board staff member spent 60 hours to get the facility into compliance amounting to $16,000 in staff costs. State Board staff expended an additional $5,000 in staff costs. The total staff costs are $21,000.
Other Factors as Justice May Require. If the Central Valley Water Board believes that the amount determined using the above factors is inappropriate, the amount may be adjusted under the provision for “other factors as justice may require,” but only if express findings are made to justify this.
Other Factors as Justice May Require. For the reasons set forth in the above “Other Factors as Justice May Require” for the CDO violations, in consideration of Environmental Justice Issues and Prevailing State Interests, the Prosecution Team recommends that the Regional Water Board further reduce the Total Base Liability Amount by a factor of 0.3 and then another 50%, which results in a $5,900 (rounded) discretionary liability. This would cut the monthly surcharge faced by rate payers to settle this matter substantially proportionally also.
Other Factors as Justice May Require. The Enforcement Policy provides that if the Regional Water Board believes that the amount determined using the above factors is inappropriate, the amount may be adjusted under the provision for “other factors as justice may require.” The Enforcement Policy includes the costs of investigation and enforcement as “other factors as justice may require” that should be added to the liability amount. No staff costs are proposed. Regional Water Board prosecution staff was engaged in settlement discussions prior to issuance of administrative civil liability order R2-2019- 0005, and staff reentered settlement with CalAtlantic after observing the discharge alleged at the start of the 2018-2019 wet season. In the interest of good-faith negotiation, staff does not seek reimbursement for costs incurred to settle the alleged violations.
Other Factors as Justice May Require a. Staff Costs: $5,957 In addition, the Prosecution Team spent 48 hours of staff time at $124.11 per hour, for a total of $5,957 to investigate this case and prepare this analysis and supporting information. The Prosecution Team finds that it is appropriate to increase the Total Base Liability amount by $5,957 in consideration of the investigation and enforcement costs. Increasing the Total Base Liability Amount in this manner serves to create a more appropriate deterrent against future violations.
Other Factors as Justice May Require. Staff Costs None The costs of investigation and enforcement could be added to the liability. However, prosecution staff has chosen not to include these costs in consideration of settlement. Maximum and Minimum Liabilities Maximum Liability $2,926,000 Water Code section 13385(c) 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. The maximum liability reflects the unauthorized discharge of 292,600 gallons of partially-treated and undisinfected wastewater and one day of violation. Minimum Liability $0.0 The violation is not subject to mandatory minimum penalties per Water Code section 13385(h) and (i), and the Discharger did not benefit economically from the violation. Thus, the minimum liability for this violation is zero. Final Liability $187,000 The final liability amount is the total base liability after adjusting for ability to pay, economic benefit, other factors, and the maximum and minimum liabilities.
