Water Board Sticks
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Transcript of Water Board Sticks
Water Board EnforcementHow it works,
and how you can participate
August 2007 Workshop on
Sustainable Solutions for Water Resources
Facing Development Pressure
Mark BradleyOffice of Enforcement
CA State Water Resources Control Board
Sustainable Solutions - August 10, 20072
Water Board Enforcement
We’ll DiscussWhat we do
What to expect if you’re subject to enforcement
How you can engage us on enforcement
What you should expect in a local enforcement program
Sustainable Solutions - August 10, 20073
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.
Sustainable Solutions - August 10, 20074
State Water Resources Control BoardRegional Water Quality Control Boards
We Regulate Discharges through:
Laws
Policies
Plans
Permits
Prohibitions
Etc.
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Why should we take Enforcement?
Our goal is compliance, not enforcement. But without the threat of enforcement, you
cannot reasonably expect compliance.
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We Enforce Compliance
Compliance with What?Laws
Policies
Plans
Permits
Prohibitions
Etc.
Enforcement cannot protect water quality if
these parts of the process are not effective and
enforceable
These are meaningless without enforcement
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Appropriate Enforcement
TimelySimilar for similar violationsInforms the violator Results in return to complianceMay require remediation of damageServes as deterrentProgressive enforcement
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Basic Enforcement Authorities
Porter-Cologne (State Law)• Numerous Alternatives
• Limited By Jurisdictional Requirements (Discharge of Waste, Pollution or Nuisance, “Order” or Prohibition)
Clean Water Act (Federal Law)• Discharges to Surface Waters
• Enforcement Options
Water Board Regulations, Plans, Policies and Permits
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WATER BOARD –Informal Enforcement Actions
Verbal
Staff enforcement letter
Notice of Violation (NOV)
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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
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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
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Storm Water Enforcement Act of 1998
Requires State Board to Report Noncompliance
Notices of Storm Water NoncomplianceFailure to File NOI, NONA, Annual Certification or Annual Reports
Mandatory, Minimum ACL if Violation Continues After 2 Notifications
$5000 for Failure to File NOI
$1000 for Failure to Submit NONA, Annual Report or Construction Certification
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Determining ACL Amounts
Mandatory Minimum PenaltiesStatutory Minimums/Maximums
Factors toConsider
DischargeDischargerEconomicBenefit
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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 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.
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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
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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
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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
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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
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How you can engage the Water Boards
Contact your Regional Water BoardCal/EPA and USEPA ComplaintsAttend Regional Water BoardMeetingsComment on proposed actions – permits, plans, enforcementactions, etc.Petition actions or inactionsEnvironmental CrimesTaskforcesCitizen Suits
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If you’re subject to Enforcement - Enforcement Items to Watch For
Notice 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
Sustainable Solutions - August 10, 200721
Critical Elements for Structuring a Local Enforcement Program
The Regulatory Process
Establish requirements
Evaluate compliance
Take appropriate enforcement in response to non-compliance
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Establish Requirements
Usually based on local authority to set conditions and requirements or permit certain activities, though may derive authority from State or Federal laws and regulationsRequirements should be clear and have the consequences of violation clearly specifiedMay be self-implementing, or may depend on permitting or other permissive approachShould provide self-reporting or inspection authorityShould include funding mechanism if existing funding not available
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Evaluate Compliance
Other Agency Oversight
Self-Reporting
Compliance Inspections
Complaint Response
Ambient monitoring
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Take Appropriate Enforcement
TimelyConsistentInforms the violatorResult in return to complianceMay require cleanup or other remediationServes as deterrentRemoval of economic benefit
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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)
Sustainable Solutions - August 10, 200726
Balance
Enforcement cannot protect water quality without a strong foundation of enforceable requirements and a reliable process for determining compliance with those requirements.
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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