Enforcement Options and Compliance Audits

Transcription

1 Sanitary Sewer Overflow (SSO) Enforcement Options and Compliance Audits Central Valley Clean Water Agency Conference May 20, 2010 Mark Bradley, Chief Special Investigations - Unit Office of Enforcement State Water Resources Control Board

2 Presentation Items Background Water Boards enforcement actions and authority SSO-related enforcement Collection system compliance audits Contacts Questions 2

3 3 Background

4 State Water Resources Control Board Regional Water Quality Control Boards Discharges Regulated ltd Actual and Threatened Discharges to Surface Waters or Land Waste Treatment Plants and Collection Systems Industrial Sites Agriculture and dfood Processing Storm Water Discharges Underground Storage Tanks Landfills Mining Waste Other discharges 4

5 REGIONAL WATER QUALITY CONTROL BOARDS 9R Regional Water Quality Control lboards Arranged by Hydrologic Basins 5

6 Why should we take Enforcement? Our goal is not enforcement, it s compliance. But without the threat of enforcement, you cannot reasonably expect compliance. 6

7 BALANCE Enforcement cannot protect water quality without a strong foundation of enforceable requirements and a reliable process for determining compliance with those requirements. 7

8 Statewide SSO Enforcement Resources Regional Boards (RBs) Investigations and enforcement for individual SSOs Conducts SSO compliance audits State t Board Implementation, enforcement and revision of Sanitary Sewer Order (SS Order), No DWQ0003 Assist RBs with SSO investigations/enforcement cases Conducts SSO compliance audits Develops SSO training materials for RBs 8

9 Appropriate Enforcement Timely Similar for similar violations Informs the violator Results in return to compliance May require remediation of damage Serves as deterrent Progressive enforcement Harmonizes with goals and objectives of recently adopted Water Quality Enforcement Policy (handout) 9

10 Types of Enforcement Actions and Water Board Authorities 10

11 Informal Enforcement Actions Verbal Staff enforcement letter Notice of Violation (NOV) 11

12 Formal Enforcement Actions Notice to Comply Technical Reports and Investigations 13267, Time Schedule Order (TSO) Regular TSO TSO with stipulated penalties Cleanup and Abatement Order (CAO) Cease and Desist Order (CDO) Administrative Civil Liability (ACL/penalty) Referral to District Attorney or Attorney General 12

13 Enforcement Action Types Future Compliance vs. Past Violations Actions that direct future compliance Notice to Comply (NTC) Letters, CAOs, CDOs Time Schedule Orders 13300, Revision of WDRs Actions that address past violations Rescission of WDRs ACL (penalty) Referral to District Attorney or Attorney General 13

14 Determining ACL/Penalty Amounts Statutory Minimums/Maximums (see California Water Code, Division 7 for details/specifics) Factors to Consider (see CWC 13385(e) and mirrored in other sections) Discharge Discharger Economic Benefit 14

15 Economic Benefit What is Economic Benefit? An economic benefit is any savings or monetary gain derived from the acts or failure to act that resulted in the violation. ilti Why consider Economic Benefit? Polluters should not profit from environmental violations Level playing field - the cost of doing business May be statutorily required The penalty should always substantially exceed the Economic Benefit. Otherwise, dischargers should just wait until you catch them. 15

16 Settlement / Appeal of Enforcement Actions Settlement of ACLs Complaint Issued - Board Hearing Within 90 days Rd Reduction of fthe Amount Supplemental Environmental Projects Compliance Projects Regional board actions may be petitioned to the state board within 30 days of issuance Appeal to the courts 16

17 Referrals to the Attorney General Appropriate for most serious violations Allows for greater Penalties (2 to 10 times higher) AG may also seek kinjunctive i relief f( (e.g. restraining order, preliminary injunction, or permanent injunction) Injunctive relief may be appropriate in emergency situations, or where a discharger has ignored enforcement orders or does not have the ability to pay pya large penalty. 17

18 Coordination i with DA or US Attorney District Attorneys, City Attorneys, USEPA, or U.S. Attorneys may seek civil or criminal penalties under their own authority for some of the same violations a Water Board pursues. A request by a Water Board is not required. AW Water Board can request prosecution or investigation and should cooperate with a prosecutor, but the criminal action is not controlled by or the responsibility of the Water Board. Not an official referral. 18

19 Enforcement Options for Identified SSO Violations i Letter/Order, CAO, CDO Issuance of Penalties (ACLs) Referral to District Attorney or Attorney General 19

20 NOTE Once a Letter/Order, CAO, or CDO are issued, there are additional actions that may be taken for violations of those orders. In particular,,penalties for violation of these orders are relatively simple. 20

21 Enforcement Items to Watch For Notice of Violation Notices to Comply Any Order directing i actions Requirements to provide information pursuant to CWC Time Schedule Order Cleanup and Abatement Order Cease and Desist Order Administrative Civil Liability Complaint 21

22 22 SSO-Related Enforcement

23 Enforcement Action Considerations Under SS Order Special Considerations the Water Boards must consider the Enrollee s efforts to contain, control, and mitigate SSOs, including whether: i) the Enrollee has complied with the requirements of this Order, including requirements for reporting, developing and implementing a SSMP ii) the Enrollee can identify the cause or likely l cause of the discharge event iii) there were no feasible alternatives to the discharge (see order for specifics) iv) the discharge was exceptional, unintentional, temporary, and caused by factors beyond the reasonable control of the Enrollee 23

24 Enforcement Action Considerations Under SS Order (continued) Special Considerations continued: v) whether the discharge could have been prevented by the exercise of reasonable control described in a certified SSMP vi) the sanitary sewer system design capacity is appropriate to reasonably prevent SSOs vii) the Enrollee took all reasonable steps to stop and mitigate the impact of the discharge as soon as possible 24

25 Collection System Compliance Audits 25

26 Collection System Compliance Audits Example collection system audit selection criteria: 1) Systems with known or historic SS Order violations 2) Systems with poor SSO performance based on comparative system metrics 3) Systems reporting none or few SSOs on a continuous basis with consideration given to system size, topography, age, etc 4) Response to complaint received (dischargers, members of the public, etc) 26

27 Collection System Compliance Audits SS Order requirements/standards used to check/verify compliance Additional checks include evaluating dischargers adequacy to properly operate, maintain, i and manage all parts of the sanitary sewer collection system, with special emphasis on investigating ability to prevent/correct SSOs Outcomes Ascertain level of compliance with SS Order Identify violations and/or areas that warrant corrective action Issuance of Orders (request for additional reports/information) Enforcement actions (issuance of complaints, Orders, etc) 27

28 Compliance Audits: sample items to be checked Verify enrollment/lro/data Submitters Check Legally Responsible Official(s) and documentation in place to notify/report/certify SSOs and SSMP SSO records, including operational logs, internal work requests, incoming complaints, etc SSMP Review: determine adequacy of elements/procedures, including planning efficacy to reduce/prevent future SSOs Verify ongoing notification procedures are met for SSOs (CALEMA, Regional Boards, and local health) Staff training to record documentation 28

29 Compliance Audits: sample items to be checked Records documenting SSO response/mitigation Comparison of SSO service calls/customer complaints with CIWQS data to ensure all SSOs were accurately reported Audit of Computerized Maintenance Management System (CMMS) (if available); compare data harvested with CIWQS to ensure all SSOs were accurately reported Facility/equipment logbooks and manuals Examination of regional rainfall data to ascertain whether or not collection system may be experiencing capacity-related SSOs; check to ensure all SSOs experienced were accurately reported into CIWQS 29

30 Compliance Audits: sample items to be checked Physical collection system facilities, equipment and standard operating procedures (SOPs) Lift/pump station maintenance and alarms/testing Manholes, mainlines, laterals Vehicles, backup equipment, SSO mitigation procedures SSO resource allocations for emergencies Inspection of SSO Hot Spots Other inspections of facilities, field equipment or conducting interviews with collections staff to properly complete the compliance audit 30

31 Example Potential Violation Areas Failure to enroll for coverage Failure to report SSOs Missing SSO notification/reporting timelines per MRP requirements Failure to adequately estimate SSO numbers/volume Failure to miss monthly reporting (SSOs or No Spill Certifications ) Conflicts between actual spill records and certified CIWQS SSO data Inadequate maintenance practices, equipment, and SSO response procedures Failure to properly address Sewer System Management Plan tasks/elements 31

32 Example Enforcement Options for Identified d Violations i Letter/Order requiring a technical report or data Cleanup and Abatement Order (CAO) Cease and Desist Order (CDO) Issuance of Penalties (ACL) Referral to D.A. if criminal activities are suspected 32

33 CIWQS Public Enforcement e Report ca 33

34 What to Expect Next Public Release of Statewide SS Order Compliance and Enforcement Plan ( big picture response by Water Boards) Issuance of NOVs / Orders systems with violations of all SSMP/MRP requirements systems stems with violations of some SSMP/MRP requirements Compliance Audits: targeted Now underway Compliance Audits: random Being planned SSO Order Review and Update (2010) 34

35 SSO Enforcement Contacts State t Water Board s Office of Enforcement Mark Bradley/Jim Fischer Office of Enforcement/Special Investigations Unit State Water Resources Control Board (916) Regional Water Board Enforcement Coordinators Cal/EPA and other State Agencies USEPA Local lda/t D.A./Taskforces 35