1. Recent Enforcement Actions Greg Broderick Downey Brand LLP gbroderick@downeybrand.com916/444-1000 BACWA Wet Weather Management Workshop MAY 28, 2008

2. The Enforcers  Regulators *US EPA *Regional Board *Office of Enforcement, SWRCB *District Attorneys, Circuit Prosecutors  NGOs *SF Baykeeper -Sick of Sewage *Northern California River Watch -Recent Citizen Suits

3. The Complaints  US EPA *Unlawful discharge *Proper operation and maintenance *Sewer System Overflows (SSOs) *Inflow and Infiltration  Regional Board *Information Download and Weekly Progress Report *Required Independent Audit  Office of Enforcement *Detailed Pre-Enforcement Report *Future Enforcement Anticipated

4. The Penalties US EPA ▪ Administrative Order *33 USC §§ 1318 & 1319 *Focuses on Inflow and Infiltration  SSMP on Steroids  Process *Essentially Unreviewable ( Rueth v. U.S. E.P.A., 13 F.3d 227 (7 th Cir. 1993)  If you think the order overreaches, either comply or defend yourself against a civil enforcement action in federal court  Collaboration *Sit down with EPA and work out an order you can live with

5. The Penalties, Cont. Regional and State Boards  Audit Requirement *Complete examination of WWTP, including design *Audit of Collection Systems (including satellite systems)  Fines Likely *Report recommends “appropriate enforcement action.”  Process *Less clear than EPA’s approach *Challengeable by petition- to State Board or writ action

6. NGO Action  Citizen Suit Enforcement *33 U.S.C. § 1365 permits citizen groups to step in where government has not. *Only formal enforcement precludes a citizen suit *Injunctive Relief, up to $32,500 per day per violation, and attorneys’ fees.  “Model” Settlement Agreement *Looks similar to the EPA Administrative Order  Los Angeles and San Diego were approx. $1 billion *Costs and fees can be extraordinary  Riverwatch: $20,000 penalty, $480,000 in fees & costs

7. What to Do…  Be Careful: It could happen to you *SASM is essentially a “wrong place, wrong time” case  Pay Attention to your Permit *Review all the terms of your draft permit *Eliminate conflicting or duplicative terms *Work with staff to avoid impossible or unclear terms  Comply with Reporting Requirements *Failing to comply creates problems with public and regulators *Can limit your potential defenses (Bypass: 40 CFR §122.41)

8. What To Do, cont…  Make reporting easy for your staff *Wallet cards or a clear, easy-to-follow written procedure  Review EPA Administrative Order and Compare *Conduct a self-audit to see how you stack up  Revise and Implement Your SSMP *Better to do it on your time-frame and budget than someone else’s  Know your neighbors *Understand what contributing agencies are doing

9. What To Do, cont…  Get “outside eyes” on your permit * Saving a little money now could cost big money later  Engage Enforcers  Prepare your Boards *Build regular collection system repair/replacement into your long term budgets and rate increases

10. Recent Enforcement Actions Greg Broderick Downey Brand LLP BACWA Wet Weather Management Workshop MAY 28, 2008