Other Factors as Justice May Require. The Enforcement Policy allows for the costs of investigation and enforcement to be considered under other factors as justice may require. To date, the Los Angeles Water Board Prosecution Team has incurred $16,976 in staff costs associated with the investigation, preparation, and enforcement of the violations. This represents approximately 153 hours of staff time devoted to this matter. No attorneys’ fees are included in this calculation. The Los Angeles Water Board Prosecution Team finds that it is appropriate to increase the Combined Total Base Liability Amount by $16,976 in consideration of investigation and enforcement costs incurred in prosecuting this matter. Increasing the Combined Total Base Liability Amount in this manner serves to create a more appropriate deterrent against future violations.
Other Factors as Justice May Require. The costs of investigation and enforcement are “other factors as justice may require,” and could be added to the liability amount. The Central Valley Water Board incurred over $15,000 (100 hours at a statewide average of $150/hour) in staff costs associated with the investigation and enforcement of the violations alleged herein. The Prosecution Team, in its discretion, is not recommending an increase in 2 xxxx://xxxxxxxxx.xxx/home/showdocument?id=38 the Total Base Liability amount in consideration of these costs incurred as the proposed liability amount serves as a sufficient general and specific deterrent against future violations.
Other Factors as Justice May Require. If the Central Valley Water Board believes that the amount determined using the above factors is inappropriate, the amount may be adjusted under the provision for “other factors as justice may require” but only if express findings are made to justify this. The Central Valley Water Board staff has spent considerable time on this case, but the Prosecution Team chooses to use its enforcement discretion to not include these costs in the liability.
Other Factors as Justice May Require. Staff Costs No adjustment The Prosecution Team did not consider staff costs in determining the final proposed liability amount. Maximum Liability $232 Million Water Code section 13385 allows up to $10,000 for each day in which a violation occurs and $10 for each gallon exceeding 1,000 gallons discharged and not cleaned up. The maximum liability calculated based on 23.1 million gallons and 59 days of violations is as follows: $232 Million = (23,100,000 gallons – 1,000 gallons) x $10/gallon + (59 days x $10,000/day) Minimum Liability $15,000 Water Code section 13385 requires a mandatory minimum penalty of $3,000 for each serious violation. There were five serious violations subject to mandatory minimum penalties (i.e., three maximum daily and two average monthly violations). Thus, the minimum liability is $15,000.
Other Factors as Justice May Require. The costs of investigation and enforcement are “other factors as justice may require.” These costs could be added to the liability amount. The Central Valley Water Board Prosecution Team has spent at least 230 hours in connection with the investigation and enforcement of the violations alleged herein. While an amount representative of these costs could be added to the penalty, the Prosecution Team, in its discretion, is not adding this amount to the total proposed liability. If the Central Valley Water Board believes that the amount determined using the above factors is inappropriate, the amount may be adjusted under the provision for “other factors as justice may require” but only if express findings are made to justify this. In this case, application of the Enforcement Policy results in a liability of $212,520. The amount is the result of the application of the Enforcement Policy to the violations alleged herein. However, the Prosecution Team has determined that a penalty of $212,520 is not appropriate in this matter because the Dischargers are also subject to a separate enforcement action—a proposed Cease and Desist Order. Concurrent with this action, the Prosecution Team has proposed a Cease and Desist Order (Proposed CDO; available at Tentative Orders | California State Water Resources Control Board) (xxxxx://xxx.xxxxxxxxxxx.xx.xxx/centralvalley/board_decisions/tentative_orders/). The Proposed CDO requires the Dischargers to invest significant resources to correct compliance issues at the Dairy. Compliance with the Proposed CDO will require the Dischargers to focus financial resources on improving operations and management at the Dairy. It is a priority for the Prosecution Team that the Dischargers make the necessary investment of resources at the Dairy such that the Dairy operates in compliance with the Reissued General Order and the Proposed CDO. In light of this, the Prosecution Team proposes a reduction in the liability in this matter in order to allow the Dischargers to appropriately prioritize compliance with the Reissued General Order and the Proposed CDO, over payment of a higher administrative civil liability. The Prosecution Team asserts that the goals of the Water Code and Enforcement Policy can be met here with a smaller, though still substantial, final liability in the amount of $42,353, which would recover substantially more than the economic benefit of the Dischargers’ noncompliance, which is discussed below. The proposed final liabilit...
Other Factors as Justice May Require. Penalty Factor Score Discussion
Other Factors as Justice May Require. In accordance with Step 8 of the Enforcement Policy, the Total Base Liability Amount may be adjusted under the provision for “other factors as justice may require” if express findings are made to justify this. Circumstances warranting an adjustment under this step include the cost of investigation and enforcement. Here, the Regional Board accrued $12,132 in staff costs associated with the investigation and preparation of this Complaint. It is appropriate to increase the Total Base Liability Amount by $12,132. This increase is in consideration of the costs of investigation and enforcement relative to the Total Base Liability Amount, is warranted given the totality of the circumstances, and is intended to serve as a sufficient general and specific deterrent against further violations. This increases the total liability to $124,238.68.
Other Factors as Justice May Require. Regional Water Board staff member spent 60 hours to get the facility into compliance amounting to $16,000 in staff costs. State Board staff expended an additional $5,000 in staff costs. The total staff costs are $21,000.
Other Factors as Justice May Require. The Enforcement Policy provides that if the Regional Water Board believes that the amount determined using the above factors is inappropriate, the amount may be adjusted under the provision for “other factors as justice may require.” The Enforcement Policy includes the costs of investigation and enforcement as “other factors as justice may require,” that could be added to the liability amount. In this case, the Prosecution Team has elected not to pursue staff costs. The Total Base Liability remains $282,500.
Other Factors as Justice May Require. Staff Costs None The costs of investigation and enforcement could be added to the liability. However, prosecution staff has chosen not to include these costs in consideration of settlement. Maximum Liability $2,926,000 Water Code section 13385(c) allows up to $10,000 for each day in which a violation occurs, plus $10 for each gallon exceeding 1,000 gallons discharged and not cleaned up. The maximum liability reflects the unauthorized discharge of 292,600 gallons of partially-treated and undisinfected wastewater and one day of violation. Minimum Liability $0.0 The violation is not subject to mandatory minimum penalties per Water Code section 13385(h) and (i), and the Discharger did not benefit economically from the violation. Thus, the minimum liability for this violation is zero. Final Liability $187,000 The final liability amount is the total base liability after adjusting for ability to pay, economic benefit, other factors, and the maximum and minimum liabilities.
