Sanitary Sewer Overflow Enforcement Options CWEA - September 2008 Mark Bradley Office of Enforcement State Water Resources Control Board

Collection Systems Training - Sept State Water Resources Control Board Regional Water Quality Control Boards Discharges Regulated Actual and Threatened Discharges to Surface Waters or Land Waste Treatment Plants and Collection Systems Industrial Sites Agriculture and Food Processing Storm Water Discharges Underground Storage Tanks Landfills Mining Waste Etc.

Collection Systems Training - Sept REGIONAL WATER QUALITY CONTROL BOARDS 9 Regional Water Quality Control Boards Arranged by Hydrologic Basins

Collection Systems Training - Sept Enforcement We’ll Cover Two Areas – Water Board Enforcement – what we do, how you can engage us, and what to expect if you’re subject to enforcement Local Enforcement Programs – elements you should expect to have in an effective local enforcement program

Collection Systems Training - Sept Why should we take Enforcement? Our goal is not enforcement, it’s compliance. But without the threat of enforcement, you cannot reasonably expect compliance.

Collection Systems Training - Sept Why should we take Enforcement? In other words, if we’re not willing to enforce our regulatory programs, we should just go home.

Collection Systems Training - Sept Potential Violations of the SSO Permit 1.Enrollment 2.Preparation of SSMP 3.Required Monthly Reporting  Spills  No spill certification 4.Accuracy of Monthly Reporting 5.Spills

Collection Systems Training - Sept Checking compliance during an inspection Verify enrollment in SSO Permit Check availability of SSMP Verify maintenance per SSMP or other maintenance schedules Verify collection system spill reporting OES reports Regional Board records Facility log books Spill reporting forms/complaints

Collection Systems Training - Sept 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

Collection Systems Training - Sept Informal Enforcement Actions Verbal Staff enforcement letter Notice of Violation (NOV)

Collection Systems Training - Sept 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

Collection Systems Training - Sept 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

Collection Systems Training - Sept Enforcement for Violations of the SSO Permit Violations: 1.Enrollment 2.Preparation of SSMP 3.Required Monthly Reporting Enforcement Options: Letter/Order requiring a report Cleanup and Abatement Order Cease and Desist Order Issuance of Penalties (will be simplified when the permit is revised)

Collection Systems Training - Sept Enforcement for Violations of the SSO Permit (continued) Violation: 4.Inaccurate or Fraudulent Monthly Reporting Enforcement Options: Letter/Order, CAO, CDO Issuance of Penalties (will be simplified when the permit is revised) Referral to District Attorney or Attorney General

Collection Systems Training - Sept Enforcement for Violations of the SSO Permit (continued) Violation: 5.Spills Enforcement Options: Letter/Order, CAO, CDO Issuance of Penalties Referral to District Attorney or Attorney General

Collection Systems Training - Sept Enforcement for Violations of the SSO Permit (continued) 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.

Collection Systems Training - Sept Referrals to the Attorney General Appropriate for most serious violations Allows for greater Penalties (2 to 10 times higher) AG may also seek injunctive relief (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 a large penalty.

Collection Systems Training - Sept Coordination 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. A 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.

Collection Systems Training - Sept Determining ACL Amounts Statutory Minimums/Maximums Factors to Consider Discharge Discharger Economic Benefit

Collection Systems Training - Sept Administrative Civil Liability under the SSO Permit 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 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

Collection Systems Training - Sept Administrative Civil Liability under the SSO Permit (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

Collection Systems Training - Sept 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. Why consider Economic Benefit? Polluters should not profit from environmental violations Level playing field - the cost of doing business May be statutorily required ACL should always substantially exceed the Economic Benefit. Otherwise, dischargers should just wait until you catch them.

Collection Systems Training - Sept Settlement / Appeal of Enforcement Actions Settlement of ACLs Complaint Issued - Board Hearing Within 90 days Reduction of the Amount Supplemental Environmental Projects Compliance Projects Board Actions may be petitioned to the State Board within 30 days of issuance Appeal to the courts

Collection Systems Training - Sept Supplemental Environmental Projects What is a SEP? A project that enhances the beneficial uses of the waters of the State, provides a benefit to the public at large, and would not otherwise be required of the discharger. May suspend some of all of the ACL amount (subject to statutory limitations) Must go above and beyond obligation of discharger Must have connection or “nexus” to violation Can require much staff time to oversee

Collection Systems Training - Sept Compliance Projects What is a Compliance Project? A project that is designed to address problems related to the violation and bring the discharger back into compliance in a timely manner. Unlike SEPs, Compliance Projects are “otherwise required of discharger”. Can be require much staff time to oversee Must usually be additive to original ACL amount In certain, limited situations the ACL monies can be used to bring the facility back into compliance

Collection Systems Training - Sept Additional Issues to Consider Environmental Crimes Taskforces Multiple agencies – federal, state and local Organized by DA, AG or US Attorney Citizen Suits Notice of intent to sue under the Clean Water Act 60 day warning to regulatory agency

Collection Systems Training - Sept Enforcement Items to Watch For Notice of Violation Notices to Comply Any Order Directing Action Requirements to provide information pursuant to CWC Time Schedule Order Cleanup and Abatement Order Cease and Desist Order Administrative Civil Liability Complaint

Collection Systems Training - Sept Critical Elements for Structuring a Local Enforcement Program The Regulatory Process Establish requirements Evaluate compliance Take appropriate enforcement in response to non-compliance

Collection Systems Training - Sept Establish Requirements 1.Usually based on local authority to set conditions and requirements or permit certain activities, though may derive authority from State or Federal laws and regulations 2.Requirements should be clear and have the consequences of violation clearly specified 3.May be self-implementing, or may depend on permitting or other permissive approach 4.Should provide self-reporting or inspection authority 5.Should include funding mechanism if existing funding not available

Collection Systems Training - Sept Evaluate Compliance Other Agency Oversight Self-Reporting Compliance Inspections Complaint Response Monitoring waterways and beaches

Collection Systems Training - Sept Take Appropriate Enforcement Timely Consistent Informs the violator Result in return to compliance May require cleanup or other remediation Serves as deterrent Removal of economic benefit

Collection Systems Training - Sept Enforcement Program Elements Actions that direct future compliance Time schedule orders/directives Limitations on future development/building permits Increased accountability Increased inspection frequency Actions that address current or past violations Stop work orders Issuance of penalties Threat of criminal enforcement (DA, Taskforces)

Collection Systems Training - Sept Balance Enforcement cannot protect water quality without a strong foundation of enforceable requirements and a reliable process for determining compliance with those requirements.

Collection Systems Training - Sept Enforcement Contacts Regional Water Board Enforcement Coordinators State Water Board’s Office of Enforcement Cal/EPA and other State Agencies USEPA Local DA/Taskforces Mark Bradley Office of Enforcement State Water Resources Control Board (916)