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New Penalties for Old Water Violations

By: Byron P. Gee, Mary Lynn K. Coffee
11/07/08

If you recently received an offer to settle a five year old water quality permit violation for tens or hundreds of thousands of dollars, you are not alone. In May 2008, the State Water Resources Control Board (SWRCB) announced its Water Quality Improvement Initiative. Among the goals of the initiative is to eliminate the backlog of waste discharge permit violations that are subject to mandatory minimum penalties arising from all types of waste discharges—from groundwater dewatering, to remediation facility, to processed waste water discharges. In addition, budgetary pressures and a sinking economy have State agencies scrambling to collect fees and fines to fund agency programs. To this end, in the last 30 to 45 days, the SWRCB and Regional Water Quality Control Boards (Regional Boards) have stepped up their demands for minimum mandatory penalties (MMP) associated with all types of prior permit violations, while also making settlement offers under the Expedited Payment Program (EPP) to resolve these alleged permit violations.

Under the EPP, the SWRCB or Regional Boards will send notices of violation with an offer to settle to NPDES and Waste Discharge Permit holders based on self reported monitoring information contained in the California Integrated Water Quality System (CIWQS) database. Alleged violations typically include effluent limitation exceedances, reporting violations or other California Water Code provisions regulating compliance reporting. Because the notices of violation are based on a record database, the notices of violation are subject to reporting errors and often times do not consider special provisions of applicable discharge permits, special discharge circumstances, or the operating status of the permitted facility.

The most recent draft of the General Construction NPDES Permit, which is still pending as of this time, requires construction site operators to report all monitoring data they are mandated to collect to the same database—the CIWQS database—which is the source underlying many of the current claims by SWRCB and the Regional Boards for mandatory minimum penalties, and attendant settlement offers under the EPP.

After Receiving a Notice of Violation

If you receive an EPP notice of violation, you should take the following steps:

  • Review your discharge and compliance records to determine if the violation is valid – In some instances, the notice of violation may be based on erroneous information and the SWRCB and Regional Board may withdraw the notice of violation based on a showing that the request for penalty is premised upon inaccurate information.
  • Review the permit that was applicable at the time of the alleged violation. In certain instances, reporting requirements may be altered by special permit conditions that are not recognized in the database, special circumstances surrounding the discharge, and/or the operating status of your permitted facility, where the SWRCB or Regional Board was not aware of those circumstances. Making the SWRCB or Regional Boards aware of these types of circumstances and defenses is important because the Water Board may modify or withdraw the notice of violation based on this type of information if submitted.

If upon review of the reporting and compliance data and permit requirements, you are unable to identify a clear factual error and the amount of the proposed settlement offer is substantial, then the assistance of a Water Law/Environmental professional that specializes in the Federal Clean Water Act and California Porter Cologne Act to discuss your obligations and potential defenses.

Preventing Future Permit Violations

Many permit and discharge violations giving rise to minimum mandatory penalties can be avoided with good compliance record keeping and by maintaining Best Management Practices (BMPs) or other waste discharge treatment equipment in good operating order. However, a good compliance record also requires that a permit holder: properly implement and maintain BMPs; install treatment technologies and BMPs that meet applicable discharge standards, such as Best Available Technology Economically Achievable/Best Conventional Pollutant Control Technology (BAT/BCT) for industrial storm water, and processed waste water discharges; and work with the Regional Board during the permit application, reporting and renewal processes to ensure that the permit effluent limitations are achievable and documented to be in compliance at all times during the year. Waste discharge characteristics change throughout the year due to, among other things, changing flow conditions and weather conditions. For example, during the winter and spring, the quantity and quality of runoff, remediation, and processed waste water discharges may be influenced by elements such as rainfall during the winter, snowmelt during the spring, and temperature during the summer. The change in flow characteristics may justify seasonally different effluent limits.

When obtaining or renewing a waste discharge permit, it is important to engage a technical water treatment consultant to help define appropriate BMPs and treatment technologies to be deployed, and determine feasible effluent limitations that you can expect to achieve to assure a reasonable waste discharge compliance program. The relevant Regional Board may adopt these effluent limitations provided that the waste discharge stream does not degrade the quality of the receiving water body and is sufficiently protective of existing water quality standards. If the Regional Board determines that additional waste water treatment is required to protect receiving water quality you should engage a Water law/Environmental professional that is intimately familiar with waste discharge requirements under the Clean Water Act and the Porter Cologne Act.

Byron Gee is a Partner that specializes in environmental and water law. He assists clients to resolve site contamination issues and is an experienced CERCLA litigator. He can be reached at 213.612.7843 or bgee@nossaman.com.

Mary Lynn K. Coffee has extensive experience in compliance with, and permitting and approvals for development projects under local, state and federal resource protection laws and has particular expertise in the development of construction and post-construction surface water quality compliance programs for existing and new real estate developments. She can be reached at 949.833.7800 or mlcoffee@nossamam.com.

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