PENALTY FACTOR VALUE DISCUSSION. The Degree of Toxicity of the Discharge 3 Untreated sewage contains elevated concentrations of ammonia, nitrate, coliform organisms and other substances which are known to cause adverse impacts to aquatic life, and to human health. Because the discharged material possessed “an above moderate risk or a direct threat to potential receptors”, a score of 3 was assigned for this factor. Actual Harm or Potential Harm to Beneficial Uses 2 The untreated sewage entered Dead Man Gulch Creek, tributary to South Laguna Creek, during a storm event. The beneficial uses of the Laguna Creek and its tributaries that could be impacted by the untreated sewage include municipal and domestic water supply, agricultural irrigation and stock watering, contact and non-contact water recreation, warm freshwater habitat, cold freshwater habitat, and wildlife habitat. The untreated sewage contains pathogens, nitrogen, ammonia, and biological oxygen demand. Elevated levels of these constituents can lead to low dissolved oxygen in the receiving water, impacts to aquatic life, and impacts to human health. The discharge was expected to have a below moderate Settlement Agreement R5-2019-0520 A-2 Attachment A: Penalty Methodology City of Galt PENALTY FACTOR VALUE DISCUSSION impact to beneficial uses as it is measurable in the short term, but not appreciable. Susceptibility to cleanup or abatement 1 None of the spill was recovered because the spill entered surface waters during a rain event. Per gallon and per day factor for discharge violations 0.15 The “Deviation from Requirement” is moderate because the SSS WDRs prohibit any discharge of sanitary sewage overflows from entering waters of the United States. The Prosecution Team has determined that the Discharger's intent was to have backup power available and it was the failure of the equipment that caused the spill. The discharge, therefore, is a moderate deviation from the requirements of the SSS WDRs. Volume discharged minus 1,000 gallons per event 300,000 gallons According to the Discharger, 301,000 gallons was discharged to surface water and not recovered. The total volume, minus 1,000 gallons per event, is used in the calculation. Adjustment for high volume discharges Yes, $2/gallon For large volume spills, the Enforcement Policy allows a reduction from the statutory maximum of $10/gallon and suggests $2/gallon for sewage spills. The Prosecution Team has determined that $2/gallon is appropriate in this matter. Per gallon penalty $90,0...
PENALTY FACTOR VALUE DISCUSSION. Step 1, Factor 1: The Degree of Toxicity of the Discharge (physical, chemical, biological, or thermal characteristics of the discharge) 2 High levels of turbidity in storm water discharges, such as those measure by Board staff during the 25 October 2021 inspection, can cloud the receiving water (which reduces the amount of sunlight reaching aquatic plants), clog fish gills, smother aquatic habitat and spawning areas, and impede navigation. Sediment can also transport other materials such as nutrients, metals, and oils and grease, which can also negatively impact aquatic life and aquatic habitat. Here, a score of 2 is appropriate because the discharged material poses a moderate risk or threat to potential receptors (i.e., the chemical and/or physical characteristics of the discharged material have some level of toxicity or pose a moderate level of threat to potential receptors).
PENALTY FACTOR VALUE DISCUSSION. Susceptibility to Cleanup or Abatement 1 Less than 50 percent of each wet weather SSO was amenable to cleanup or containment because the discharges were quickly carried away by high creek flows to the ocean and the ocean current prevented cleanup or containment of untreated sewage. 0 Greater than 50 percent of each dry weather SSO was susceptible to cleanup. However, the actual average SSO recovery was about 18 percent. Xxxxx 0 A value of 5 (1+3+1) applies to the two wet weather SSOs. Potential for Harm Score 5 A value of 5 (2+3+0) applies to the ten dry weather SSOs. Per Gallon and Per Day Factor for Discharge Violations 0.15 Based on the Enforcement Policy, 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). Prohibition C.1 of the Sanitary Sewer Order prohibits discharge of untreated sewage to waters of the United States. Discharging to waters of the United States rendered this prohibition ineffective in its essential functions. This represents a “major” deviation from the requirement. Based on Tables 1 and 2 of the Enforcement Policy, a factor of 0.15 applies to all the SSOs due to their Potential for Harm score of “5” and the “major” Deviation from Requirement. Adjustment for High Volume Discharges $10/day No adjustment The largest of the 12 SSOs was 11,500 gallons. This is not considered a “high volume discharge.” Therefore, $10 per gallon liability is appropriate. Initial Liability $32,078 The initial liability is determined by adding the individual liabilities for each of the 12 SSOs: Each individual SSO liability = (Per gallon factor x [SSO gallons discharged to surface water minus 1,000 gallons]) + (Per day factor x maximum per day liability allowed [i.e., $10,000] x number of days of SSO duration). January 4, 2008: $1,500 = (0.15 x 0 x 10) + (0.15 x 1 x 10,000) January 25, 2008: $1,500 = (0.15 x 0 x 10) + (0.15 x 1 x 10,000) January 25, 2008: $1,688 = (0.15 x 125 x 10) + (0.15 x 1 x 10,000) February 17, 2008: $9,390 = (0.15 x 5,260 x 10) + (0.15 x 1 x 10,000) April 28, 2008: $1,500 = (0.15 x 0 x 10) + (0.15 x 1 x 10,000) March 13, 2010: $1,500 = (0.15 x 0 x 10) + (0.15 x 1 x 10,000) April 22, 2010: $6,000 = (0.15 x 3,000 x 10) + (0.15 x 1 x 10,000) April 9, 2011: $1,500 = (0.15 x 0 x 10) + (0.15 x 1 x 10,000) PENALTY FACTOR VALUE DISCUSSION May 29, 2012: $1,500 = (0.15 x 0 x 10) + (0.15 x ...
PENALTY FACTOR VALUE DISCUSSION. Ability to pay and continue in business No adjustment The City of Colfax is a public entity with the ability to raise funds. The Discharger has an annual operation and maintenance budget of $195,277 for sanitary sewer system facilities according to the CIWQS questionnaire. Economic benefit $14,119 Pursuant to Water Code section 13385(e), civil liability, at a minimum, must be assessed at a level that recovers the economic benefit of noncompliance derived from the acts that constitute the violation. The economic benefit of noncompliance for the violations is estimated at $14,119. Water Board staff calculated the economic benefit using information provided by the Discharger. Items considered in the economic benefit were preparation of a lift station SOP, SCADA monitoring, force main inspections, and reprogramming of the lift station pumping (see ACLC R5-2020-0507, Attachment C). Total Base Liability for all violations: $82,890 Other Factor Considerations Other factors as justice may require Reduction of Per Gallon Penalty to $1/gallon 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 has incurred over $3,000 in staff costs associated with the investigation and enforcement of the alleged violations which it is not included at this time. The Prosecution Team retains discretion to seek staff costs, which may increase, should this matter proceed to hearing. The City is a small community with a financial hardship as defined by Water Code section 13385(k). In addition, the Prosecution Team acknowledges that the City has invested significant resources into improving and upgrading its sanitary sewer collections system. Together, these circumstances warrant an additional reduction to the overall liability based on equitable considerations. The Prosecution Team has determined, as a settlement consideration, that a reduction in the per gallon penalty to $1 per gallon is appropriate. Adjusted Total Base Liability for Violations $49,845 Per gallon penalty of $1 per gallon applied to determine adjusted base liability Maximum liability $1,240,170 Based on Water Code section 13385: $10,000 per day per spill and $10 per gallon, minus the first 1,000 gallons per spill event. Minimum liability $15,531 Based on California Water Code section 13385, civil liability must be at least the economic benefit of non-compliance. Per the Enforcement Policy, the minimum liability ...
PENALTY FACTOR VALUE DISCUSSION. Discharge violations n/a This step is not applicable because the violation is not a discharge violation. Potential for harm Moderate The Discharger’s failure to implement erosion control BMPs caused the storm water impounded in the Project’s ponds to have a higher turbidity that if erosion control BMPs had been applied. Therefore, not applying erosion control BMPs to disturbed soil areas had a moderate potential for harm to beneficial uses. Deviation from requirement Major The “Deviation from Requirement” is major because the Discharger did not implement erosion control BMPs rendering the permit requirement ineffective. Per day factor 0.5 The value of 0.5 was determined from Table 3 in the Enforcement Policy. A value below the middle value was chosen. PENALTY FACTOR VALUE DISCUSSION Days of violation 35 The violation was first identified during a Board Staff inspection on 21 November 2018. Although erosion control BMPs were still not implemented as of 1 March 2019, Board Staff elected to stop the days of violation on 17 January 2019 for calculation purposes. Using the dates above yields 58 days of violation. Water Board staff have the discretion to collapse multiple day violations in accordance with the method contained in the Enforcement Policy if certain conditions are met. Board Staff are electing to compress days using this method which reduces the days of violation to 35. Initial Liability for Violation #2 $175,000 The liability is calculated as per day factor multiplied by the number of days multiplied by the maximum liability per day ($10,000/day). Adjustments for Discharger Conduct Culpability 1.2 The SWPPP for the Project list several potential erosion control BMPs planned to be used on the Project. The Discharger was aware of the requirement but continued to work into the initial rain events without protecting the site with erosion control BMPs except for silt fencing around the perimeter of the project. Following the initial rain events, the Project’s disturbed soil areas were saturated, and the Discharger could not apply erosion controls due to ground conditions. The Discharger did take actions to store and pump water from onsite basis to an onsite spray field for onsite retention and recharge but did not take actions in accordance with General Permit conditions; therefore, Board Staff is assigning a culpability adjustment factor of 1.2. Adjustments for Discharger Conduct History of Violations 1.0 Board staff are not aware of previous violation...
