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Water Board Enforcement How it works, and how you can participate August 2007 Workshop on Sustainable Solutions for Water Resources Facing Development Pressure Mark Bradley Office of Enforcement CA State Water Resources Control Board

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Page 1: 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

Page 2: Water Board Sticks

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

Page 3: Water Board Sticks

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.

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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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Sustainable Solutions - August 10, 20075

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

Page 7: Water Board Sticks

Sustainable Solutions - August 10, 20077

Appropriate Enforcement

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

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Sustainable Solutions - August 10, 20078

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

Page 9: Water Board Sticks

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WATER BOARD –Informal Enforcement Actions

Verbal

Staff enforcement letter

Notice of Violation (NOV)

Page 10: Water Board Sticks

Sustainable Solutions - August 10, 200710

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

Page 11: Water Board Sticks

Sustainable Solutions - August 10, 200711

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

Page 12: Water Board Sticks

Sustainable Solutions - August 10, 200712

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

Page 13: Water Board Sticks

Sustainable Solutions - August 10, 200713

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.

Page 15: Water Board Sticks

Sustainable Solutions - August 10, 200715

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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Sustainable Solutions - August 10, 200716

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

Page 17: Water Board Sticks

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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

Page 18: Water Board Sticks

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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

Page 19: Water Board Sticks

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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

Page 20: Water Board Sticks

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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

Page 21: Water Board Sticks

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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

Page 23: Water Board Sticks

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Evaluate Compliance

Other Agency Oversight

Self-Reporting

Compliance Inspections

Complaint Response

Ambient monitoring

Page 24: Water Board Sticks

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Take Appropriate Enforcement

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

Page 25: Water Board Sticks

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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)

Page 26: Water Board Sticks

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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