Mark Bradley

Enforcement

What to Expect From the Water Boards,and What to Look for Locally

ENTS WorkshopAugust 22 2008

Mark BradleyOffice of Enforcement

CA State Water Resources Control Board

ENTS - August 22, 20082

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


State Water Resources Control BoardRegional Water Quality Control Boards

Discharges RegulatedDischarges to Surface Waters or Land

• Waste Treatment Plants• Industry• Agriculture• Storm Water Discharges

Underground Storage TanksLandfillsMining WasteEtc.


Why should we take Enforcement?

Our goal is compliance, not enforcement. But without the threat of enforcement, you

cannot reasonably expect compliance.


Why should we take Enforcement?

In other words, if we’re not willing to enforce our regulatory programs, we should

just go home.


Appropriate Enforcement

TimelySimilar for similar violationsInforms the violator Results in return to complianceMay require remediation of damageServes as deterrentProgressive enforcement


Basic Enforcement Authorities

Porter-Cologne (State)• Numerous Alternatives

• Limited By Jurisdictional Requirements (Discharge of Waste, Pollution or Nuisance, “Order” or Prohibition)

Clean Water Act (Federal)• Discharges to Surface Waters

• Enforcement Options

Water Board Regulations, Plans, Policies and Permits


WATER BOARD –Informal Enforcement Actions

Verbal

Staff enforcement letter

Notice of Violation (NOV)


WATER BOARD –Formal Enforcement Actions

Notice to Comply

Technical Reports and Investigations

(CWC 13267 Requests)

Time Schedule Orders (TSOs)

Cleanup and Abatement Orders (CAOs)

Cease and Desist Orders (CDOs)

Administrative Civil Liability (ACL) - fines

Referral to Attorney General or District Attorney


Enforcement Action TypesFuture Compliance vs. Past Violations

Actions that direct future compliance

Notice to Comply

13267 Letters, CAOs, CDOs

Time Schedule Orders

Revision of permit/monitoring requirements

Actions that address past violations

Rescission of WDRs

Administrative Civil Liability

Referral to Attorney General or District Attorney


Determining ACL Amounts

Mandatory Minimum PenaltiesStatutory Minimums/Maximums

Factors toConsider

DischargeDischargerEconomicBenefit


Economic BenefitWhat 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 violationsLevel playing field - the cost of doing businessMay be statutorily required

ACL should always substantially exceed the Economic Benefit. Otherwise, dischargers should just wait until you catch them.


Settlement / Appealof Enforcement Actions

Settlement of ACLsComplaint 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


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 dischargerMust have connection or “nexus” to violationCan require much staff time to oversee


Compliance ProjectsWhat 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 overseeMust usually be additive to original ACL amountIn certain, limited situations the ACL monies can be used to bring the facility back into compliance


Additional Issues to Consider

Environmental Crimes TaskforcesMultiple agencies – federal, state and local

Organized by DA, AG or US Attorney

Citizen SuitsNotice of intent to sue under the Clean Water Act

60 day warning to regulatory agency


Enforcement Items to Watch ForNotice of ViolationNotices to ComplyAny Order Directing Action

Requirements to provide information pursuant to CWC 13267Time Schedule OrderCleanup and Abatement OrderCease and Desist Order

Administrative Civil Liability Complaint


Critical Elements for Structuring a Local Enforcement Program

The Regulatory Process

• Establish requirements

• Evaluate compliance

• Take appropriate enforcement in response to non-compliance


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 authority5. Should include funding mechanism if existing funding not

available


Evaluate Compliance

Other Agency Oversight

Self-Reporting

Compliance Inspections

Complaint Response

Ambient monitoring


Take Appropriate Enforcement

TimelyConsistentInforms the violatorResult in return to complianceMay require cleanup or other remediationServes as deterrentRemoval of economic benefit


Enforcement Program ElementsActions 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)


Balance

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


Enforcement ContactsRegional Water Board Enforcement CoordinatorsState Water Board’s Office of EnforcementCal/EPA and other State AgenciesUSEPALocal DA/Taskforces

Mark BradleyOffice of EnforcementState Water Resources Control [email protected](916) 341-5891

mailto:[email protected]

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