Common use of Culpability Clause in Contracts

Culpability. The Discharger constructed a Reverse Osmosis (RO) Plant to remove salt from its domestic water supply, provide higher quality drinking water to the inmates, and produce a higher quality effluent discharge from the Facility. When the RO Plant is not operational or not operating at its optimal condition, constituents that pose a concern to water quality are discharged in concentrations that the Facility cannot properly treat. In a letter from Siemens’ project manager, Siemens observed in 2011 that debris that had been accumulating on the membrane bioreactor (MBR) modules. Siemens cautioned CDCR that the lack of maintenance and cleaning of the membranes could have damaged the membranes and reduced its long term integrity. Trash and debris was again observed during a 25 January 2013 inspection by a service technician. In a letter from Evoquo Water Technologies dated 24 July 2014, CDCR was once again cautioned that the membranes collected trash and debris. The lack of operation of the RO plant, coupled with the lack of proper cleaning of the membranes, have caused the modules to lose efficiency over a period of years, and eventually, the modules can no longer be cleaned sufficiently to properly operate. A higher culpability factor is appropriate because CDCR was aware of the risk of not properly maintaining the membrane bioreactor modules and chose not to employ adequate measures and processes to prevent the accumulation of trash and debris which likely severely impaired the functionality and effectiveness of the membranes. The compromised membranes prevented CDCR from adequately treating its wastewater thereby resulting in pollution to Xxxxx Drain. A factor of 1.3 is conservatively applied. The Regional Board Prosecution Team has engaged in several meetings with CDCR to discuss compliance, however, this compliance assistance process has been insufficient. CDCR staff expressed the desire to comply contending that they “have taken every step necessary to correct the deficiency.” (see Letter from Xxxx Xxxxx dated January 28 2016). However, CDCR has not complied with key requirements and actions in the CAO which were prescribed to improve its wastewater treatment system. Despite the numerous attempts to work cooperatively with CDCR, the Discharger continues to pollute Xxxxx Drain by discharging wastewater that contains constituents which exceed the mandatory limits protective of Xxxxx Drain’s beneficial uses. A factor of 1.2 is conservatively applied.

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 replace or repair deficient BMPs as required by the General Permit. On 18 September 2014, both Water Board staff and City of Grass Valley staff inspected the Project and identified that several storm water BMPs were worn and in need of replacement or repair. The City of Grass Valley issued a Notice to Comply on 18 September 2014 to compel the Discharger constructed to address BMP deficiencies. On 25 September 2014, the City of Grass Valley conducted a Reverse Osmosis (RO) Plant to remove salt from its domestic follow-up inspection during a rain event and found that BMP repairs were still needed and issued a Stop Work Order. Only after the City issued the Stop Work Order did the Discharger address the deficient storm water supplyBMPs. The City of Grass Valley lifted the Stop Work order following another inspection on 26 September 2014. Following a rain event, provide higher quality drinking water the City of Grass Valley conducted additional inspections on 28 October and 30 October 2014. These inspections revealed that there were additional BMPs that required maintenance or repair. According to the inmates30 October 2014 inspection, BMPs were scheduled to be repaired and additional BMPs deployed on 31 October 2014. A follow-up inspection conducted by the City of Grass Valley on 3 November 2014 indicated that the site BMPs had been repaired. These inspections, Notice to Comply, and produce a higher quality effluent discharge from the Facility. When the RO Plant is not operational or not operating at its optimal condition, constituents that pose a concern to water quality are discharged in concentrations Stop Work Order show that the Facility cannot properly treat. In a letter from Siemens’ project manager, Siemens observed in 2011 that debris that had been accumulating on the membrane bioreactor (MBR) modules. Siemens cautioned CDCR that the lack of maintenance and cleaning of the membranes could have damaged the membranes and reduced its long term integrity. Trash and debris was again observed during a 25 January 2013 inspection by a service technician. In a letter from Evoquo Water Technologies dated 24 July 2014, CDCR was once again cautioned that the membranes collected trash and debris. The lack of operation of the RO plant, coupled with the lack of proper cleaning of the membranes, have caused the modules to lose efficiency over a period of years, and eventually, the modules can no longer be cleaned sufficiently to properly operate. A higher culpability factor is appropriate because CDCR Discharger was aware of the risk of BMP maintenance deficiencies and elected to not properly maintaining replace or repair the membrane bioreactor modules and chose not to employ adequate measures and processes to prevent BMPs until the accumulation of trash and debris which likely severely impaired Stop Work Order was issued. In addition, approximately one month later, follow-up inspections revealed that there were additional BMP maintenance violations. Given the functionality and effectiveness of the membranes. The compromised membranes prevented CDCR from adequately treating its wastewater thereby resulting in pollution to Xxxxx Drain. A factor above, a culpability of 1.3 is conservatively applied. The Regional Board Prosecution Team has engaged in several meetings with CDCR to discuss compliance, however, this compliance assistance process has been insufficient. CDCR staff expressed the desire to comply contending that they “have taken every step necessary to correct the deficiencyappropriate.” (see Letter from Xxxx Xxxxx dated January 28 2016). However, CDCR has not complied with key requirements and actions in the CAO which were prescribed to improve its wastewater treatment system. Despite the numerous attempts to work cooperatively with CDCR, the Discharger continues to pollute Xxxxx Drain by discharging wastewater that contains constituents which exceed the mandatory limits protective of Xxxxx Drain’s beneficial uses. A factor of 1.2 is conservatively applied.

Culpability. Higher liabilities should result from intentional or negligent violations as opposed to accidental violations. A multiplier between 0.5 and 1.5 is to be used, with a higher multiplier for negligent behavior. The Discharger constructed was given a Reverse Osmosis (RO) Plant multiplier value of 1.4 because of the Discharger’s repeated failure to remove salt implement appropriate BMPs prior to several forecasted multi-day storm events, despite multiple warnings from its domestic water supply, provide higher quality drinking water Board staff. These failures to implement BMPs led to the inmatesdischarges of turbid water which could have been avoided had appropriate BMPs been in place prior to the forecasted storm events. The Discharger did not anticipate what a reasonable person would have and did not implement appropriate measures to avoid the violations. The Discharger knowingly approved construction activities in the rainy season, allowed work to continue almost to the start of the storm event, and produce a higher quality effluent discharge from then violated the Facility. When the RO Plant is Permit conditions by not operational or not operating at its optimal condition, constituents that pose a concern installing required BMPs prior to water quality are discharged in concentrations that the Facility cannot properly treatforecasted storm events. In a letter from Siemens’ addition, because Board staff was so concerned about the site and the potential for discharge, ten inspections were conducted between 16 October 2012 and 19 February 2013. Water Board staff expended much greater time and effort on this site than on any other site in recent memory; and repeatedly reminded Caltrans that it was out of compliance with Construction General Permit and Caltrans Storm Water Permit requirements. The inspection reports are summarized below: • 16 October 2012 - Board staff inspected the Project site with Caltrans storm water staff. Board staff observed the contractor, Xxxxxxxx Construction, conducting significant earth work in multiple areas of the project. Some areas of the project manager, Siemens observed in 2011 that debris that were mostly completed and both sediment and erosion control BMPs had been accumulating implemented. However, large portions of the site were not protected with either erosion or sediment control BMPs. Board staff was very concerned about the eastern area of the Project where two large bridge abutments were under construction on the membrane bioreactor (MBR) moduleseast and west sides of Mono Way. Siemens cautioned CDCR that According to the construction schedule at the time of the inspection, these areas were not scheduled to be completed until November. Board staff attended a portion of a weekly construction meeting with Caltrans and its contractors and expressed concern about the lack of maintenance erosion control BMPs given the impending rainy season and cleaning of the membranes could have damaged the membranes and reduced storm water problems experienced by Caltrans during its long term integrity. Trash and debris was again observed during a 25 January 2013 inspection by a service technician. In a letter from Evoquo Water Technologies dated 24 July 2014, CDCR was once again cautioned that the membranes collected trash and debris. The lack of operation of the RO plant, coupled with the lack of proper cleaning of the membranes, have caused the modules to lose efficiency over a period of years, and eventually, the modules can no longer be cleaned sufficiently to properly operate. A higher culpability factor is appropriate because CDCR was aware of the risk of not properly maintaining the membrane bioreactor modules and chose not to employ adequate measures and processes to prevent the accumulation of trash and debris which likely severely impaired the functionality and effectiveness of the membranes. The compromised membranes prevented CDCR from adequately treating its wastewater thereby resulting Stage 1 Sonora Bypass project in pollution to Xxxxx Drain. A factor of 1.3 is conservatively applied. The Regional Board Prosecution Team has engaged in several meetings with CDCR to discuss compliance, however, this compliance assistance process has been insufficient. CDCR staff expressed the desire to comply contending that they “have taken every step necessary to correct the deficiency2002.” (see Letter from Xxxx Xxxxx dated January 28 2016). However, CDCR has not complied with key requirements and actions in the CAO which were prescribed to improve its wastewater treatment system. Despite the numerous attempts to work cooperatively with CDCR, the Discharger continues to pollute Xxxxx Drain by discharging wastewater that contains constituents which exceed the mandatory limits protective of Xxxxx Drain’s beneficial uses. A factor of 1.2 is conservatively applied.

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 constructed a Reverse Osmosis (RO) Plant elected to remove salt not install erosion control BMPs prior to forecasted storm events despite several warnings from its domestic water supplyBoard and City of Grass Valley staff, provide higher quality drinking water to did not follow erosion control plans submitted with the inmatesSWPPP and Grading Plans, and produce a higher quality effluent discharge from violated the FacilityPermit conditions by not installing required erosion control BMPs prior to forecasted storm events. When the RO Plant is not operational or not operating at its optimal condition, constituents that pose a concern to water quality are discharged in concentrations These inspections show that the Facility cannot properly treat. In a letter from Siemens’ project manager, Siemens observed in 2011 that debris that had been accumulating on the membrane bioreactor (MBR) modules. Siemens cautioned CDCR that the lack of maintenance and cleaning of the membranes could have damaged the membranes and reduced its long term integrity. Trash and debris was again observed during a 25 January 2013 inspection by a service technician. In a letter from Evoquo Water Technologies dated 24 July 2014, CDCR was once again cautioned that the membranes collected trash and debris. The lack of operation of the RO plant, coupled with the lack of proper cleaning of the membranes, have caused the modules to lose efficiency over a period of years, and eventually, the modules can no longer be cleaned sufficiently to properly operate. A higher culpability factor is appropriate because CDCR Discharger was aware of the risk of BMP deficiencies following the 26 March 2014 inspection and elected to not properly maintaining install erosion control BMPs prior to several subsequent rain events through 25 April 2014. Given the membrane bioreactor modules and chose not to employ adequate measures and processes to prevent the accumulation of trash and debris which likely severely impaired the functionality and effectiveness of the membranes. The compromised membranes prevented CDCR from adequately treating its wastewater thereby resulting in pollution to Xxxxx Drain. A factor above, a culpability of 1.3 is conservatively applied. The Regional Board Prosecution Team has engaged in several meetings with CDCR to discuss compliance, however, this compliance assistance process has been insufficient. CDCR staff expressed the desire to comply contending that they “have taken every step necessary to correct the deficiencyappropriate.” (see Letter from Xxxx Xxxxx dated January 28 2016). However, CDCR has not complied with key requirements and actions in the CAO which were prescribed to improve its wastewater treatment system. Despite the numerous attempts to work cooperatively with CDCR, the Discharger continues to pollute Xxxxx Drain by discharging wastewater that contains constituents which exceed the mandatory limits protective of Xxxxx Drain’s beneficial uses. A factor of 1.2 is conservatively applied.

Culpability. The Discharger constructed a Reverse Osmosis (RO) Plant to remove salt from its domestic water supply, provide higher quality drinking water to the inmates, and produce a higher quality effluent discharge from the Facility. When the RO Plant is not operational or not operating at its optimal condition, constituents that pose a concern to water quality are discharged in concentrations that the Facility cannot properly treat. In a letter from Siemens’ project manager, Siemens observed in 2011 that debris that had been accumulating on the membrane bioreactor (MBR) modules. Siemens cautioned CDCR that the lack of maintenance and cleaning of the membranes could have damaged the membranes and reduced its long term integrity. Trash and debris was again observed during a 25 January 2013 inspection by a service technician. In a letter from Evoquo Water Technologies dated 24 July 2014, CDCR was once again cautioned that the membranes collected trash and debris. The lack of operation of the RO plant, coupled with the lack of proper cleaning of the membranes, have caused the modules to lose efficiency over a period of years, and eventually, the modules can no longer be cleaned sufficiently to properly operate. A higher culpability factor is appropriate because CDCR was aware of the risk of not properly maintaining the membrane bioreactor modules and chose not to employ adequate measures and processes to prevent the accumulation of trash and debris which likely severely impaired the functionality and effectiveness of the membranes. The compromised membranes prevented CDCR from adequately treating its wastewater thereby resulting in pollution to Xxxxx Drain. A factor of 1.3 is conservatively applied. The Regional Board Prosecution Team has engaged in several meetings with CDCR to discuss compliance, however, this compliance assistance process has been insufficient. CDCR staff expressed the desire to comply contending that they “have taken every step necessary to correct the deficiency.” (see Letter from Xxxx Xxxxx dated January 28 2016). However, CDCR has not complied with key requirements and actions in the CAO which were prescribed to improve its wastewater treatment system. Despite the numerous attempts to work cooperatively with CDCR, the Discharger continues to pollute Xxxxx Drain by discharging wastewater that contains constituents which exceed the mandatory limits protective of Xxxxx Drain’s beneficial uses. A factor of 1.2 is conservatively applied.. See the history of violation rationale for Violation 1. A factor of 1.4 is appropriate. Therefore, the total penalty for the effluent limitation violations is calculated as: