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Mark Bradley Mark Bradley Presentation Transcript

  • Enforcement What to Expect From the Water Boards, and What to Look for Locally ENTS Workshop August 22 2008 Mark Bradley Office of Enforcement CA State Water Resources Control Board
  • 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 Board Regional Water Quality Control Boards
    • Discharges Regulated
      • Discharges to Surface Waters or Land
        • Waste Treatment Plants
        • Industry
        • Agriculture
        • Storm Water Discharges
      • Underground Storage Tanks
      • Landfills
      • Mining Waste
      • Etc.
  • 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
    • Timely
    • Similar for similar violations
    • Informs the violator
    • Results in return to compliance
    • May require remediation of damage
    • Serves as deterrent
    • Progressive 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 Types Future 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 Penalties
    • Statutory Minimums/Maximums
    • Factors to
    • Consider
      • Discharge
      • Discharger
      • Economic
      • Benefit
  • 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.
  • 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
  • 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
  • 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
  • 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
  • Enforcement Items to Watch For
    • Notice of Violation
    • Notices to Comply
    • Any Order Directing Action
      • Requirements to provide information pursuant to CWC 13267
      • Time Schedule Order
      • Cleanup and Abatement Order
      • Cease 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
    • 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
    • Requirements should be clear and have the consequences of violation clearly specified
    • May be self-implementing , or may depend on permitting or other permissive approach
    • Should provide self-reporting or inspection authority
    • 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
    • Timely
    • Consistent
    • Informs the violator
    • Result in return to compliance
    • May require cleanup or other remediation
    • Serves as deterrent
    • Removal of economic benefit
  • 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)
  • Balance
    • Enforcement cannot protect water quality without a strong foundation of enforceable requirements and a reliable process for determining compliance with those requirements.
  • 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
    • [email_address]
    • (916) 341-5891