Culpability Clause Samples

Culpability. The Enforcement Policy states, “[h]igher liabilities should result from intentional or negligent violations as opposed to accidental, non-negligent violations. The test is what a reasonable and prudent person would have done or not done under similar circumstances.” A multiplier between 0.5 and 1.5 is to be used, with a higher multiplier for negligent behavior. This factor was given a multiplier value of 1.3 because of the Discharger’s repeated failure to implement appropriate erosion control BMPs prior to several forecasted storm events, despite multiple warnings from Board and City of Grass Valley staff. In addition, the SWPPP and Grading Plans submitted by the Discharger clearly state that erosion control BMPs would be installed and used on the Project. Board staff first inspected the Project on 26 March 2014 and informed the Discharger that erosion control BMPs are required on all disturbed soils during rain events. A follow-up inspection by Board staff on 23 April 2014 revealed that erosion control BMPs had still not been installed and Board staff once again informed the Discharger of the erosion control BMP requirements. On 24 April 2014, Board staff sent an email reminder to the Discharger prior to the rain event predicted for 25 April 2015 to ensure that the Discharger understood that the General Permit requires erosion control BMPs to be in place during the upcoming rain event. Follow-up inspections by the City of Grass Valley on 25 April 2014 (during a major storm event) found that the Discharger had still not installed erosion control BMPs and the City issued a Notice to Comply. The Discharger elected to not install erosion control BMPs prior to forecasted storm events despite several warnings from Board and City of Grass Valley staff, did not follow erosion control plans submitted with the SWPPP and Grading Plans, and violated the Permit conditions by not installing required erosion control BMPs prior to forecasted storm events. These inspections show that the Discharger was aware of the BMP deficiencies following the 26 March 2014 inspection and elected to not install erosion control BMPs prior to several subsequent rain events through 25 April 2014. Given the above, a culpability of 1.3 is appropriate.

Culpability. The Enforcement Policy specifies that higher liabilities should result from intentional or negligent violations as opposed to accidental violations. It specifies use of a multiplier between 0.5 and 1.5, with a higher multiplier for intentional or negligent behavior.

Culpability. This factor considers a discharger’s degree of culpability prior to the violation. Higher liabilities should result from intentional or negligent violations as opposed to accidental violations. The test for whether a discharger is negligent is what a reasonable and prudent person would have done or not done under similar circumstances. Under the 2017 Enforcement Policy, the culpability multiplier ranges between 0.75 and 1.5, with a higher multiplier for intentional misconduct and gross negligence. A neutral assessment of 1.0 should be used when a discharger is determined to have acted as a reasonable and prudent person would have. A reasonable and prudent person would have ensured that their project followed all applicable regulations for construction sites. A multiplier of 1.2 is assigned as the Discharger did not act as a reasonable and prudent person would have by implementing good housekeeping practices such as spill prevention and cleanup, and stockpile management using plastic sheeting and gravel bags.

Culpability. Higher liabilities should result from intentional or negligent violations as opposed to accidental violations. A multiplier between 0.5 and 1.5 is used, with a higher multiplier for negligent behavior.

Culpability. The Discharger has a minor degree of culpability. This assessment is based on the fact that the Discharger had no knowledge that the laboratory it had been using was not properly certified. Therefore, the Prosecution Team assigned a culpability factor is 0.5.

Culpability. An unplanned discharge by its very nature should be considered a non-negligent discharge except when Cal Water, or its agent(s), took action or failed to act in a manner that caused or exacerbated the unplanned discharge.

Culpability. Higher liabilities should result from intentional or negligent violations as opposed to accidental violations. A multiplier between 0.5 and 1.5 is used, with a higher multiplier for negligent behavior. For the violation, the culpability multiplier is 1.2, because Cal Water did not exercise reasonable care in reacting to a pressure drop it detected on October 25, 2013, the first day of the discharge. The discharge continued until a Cal Water operator noticed water surfacing through the road bed on ▇▇▇▇▇▇▇▇ Road and took actions to stop and fix the problem. At least one Cal Water inspector failed to observe the discharge during inspections between October 25 and October 28. Moreover, Cal Water’s supervisory control and data acquisition (SCADA) system had sent notifications to its operators and managers of a suction pressure drop for pump MPS 26 beginning on October 25, 2013, at or around 11:51 p.m. Despite this notification, Cal Water did not thoroughly investigate the cause of the pressure drop and instead stated that it attributed the pressure drop to algae clogging meter screens on the supply line owned and operated by the SFPUC. Cal Water provided no evidence to support that this was a reasonable assumption to make at the time. Cal Water also did not consult with SFPUC staff at the time about its suspicion of algal growth or screen clogging within the SFPUC supply system3. Evidence shows that Cal Water staff did not contact SFPUC until October 28, 2013, after it discovered the discharge (based on Cal Water’s June 14, 2014, additional information report). SFPUC then sent crews to inspect its own system on the same day it received a call from Cal Water and found no problem within SFPUC’s system and communicated its findings to Cal Water crews working to repair the broken pipeline at the shoulder of ▇▇▇▇▇▇▇▇ Road.

Culpability. The Discharger has a neutral culpability. This assessment is based on the fact that the Discharger is responsible for securing funding for a project that would ensure compliance with Regional Water Board Orders, including the Discharger’s proposal to phase out the discharge of effluent to receiving waters. Additionally, the Discharger is responsible for taking the necessary steps to achieve compliance. NSD secured professional services from USEPA-sponsored programs and relied on the agency’s technical expertise which ultimately resulted in technically unfeasible alternatives. Therefore, the Prosecution Team assigned a culpability factor of 1.0 (neutral).

Culpability. A factor of 1.4 is appropriate for this violation; the same factors described for Violation No. 1 are applicable to this violation. This factor reflects the extent to which a discharger voluntarily cooperated in returning to compliance and correcting environmental damage. A multiplier between 0.75 and 1.5 is to be used, with a higher multiplier when there is a lack of cooperation. The Discharger was given a multiplier value of 1.3 because of the cooperation exhibited by the Discharger to return into compliance. Water Board staff conducted several inspections prior to the first discharge event reminding the Discharger of the storm water BMP requirements including erosion and sediment controls at the Mono East abutment as soon as possible. Effective erosion and sediment control BMPs were not installed in active areas prior to rain events between 16 October 2012 and 3 December 2012 which contributed to the turbid discharge cited in Violations 1 and 2 (above) during these rain events.