PENALTY FACTOR VALUE DISCUSSION Sample Clauses
The "Penalty Factor Value Discussion" clause establishes a framework for determining and negotiating the penalty factor values that may be applied in the event of contractual breaches or performance shortfalls. In practice, this clause requires the parties to engage in discussions to agree upon the specific values or formulas that will be used to calculate penalties, ensuring that both sides have input and clarity regarding potential financial consequences. Its core function is to promote transparency and mutual understanding about penalty calculations, thereby reducing disputes and ensuring that any penalties imposed are fair and agreed upon in advance.
PENALTY FACTOR VALUE DISCUSSION. Susceptibility to Cleanup or Abatement 1 Less than 50 percent of each wet weather SSO was amenable to cleanup or containment because the discharges were quickly carried away by high creek flows to the ocean and the ocean current prevented cleanup or containment of untreated sewage. 0 Greater than 50 percent of each dry weather SSO was susceptible to cleanup. However, the actual average SSO recovery was about 18 percent. ▇▇▇▇▇ ▇ A value of 5 (1+3+1) applies to the two wet weather SSOs. Potential for Harm Score 5 A value of 5 (2+3+0) applies to the ten dry weather SSOs. Per Gallon and Per Day Factor for Discharge Violations 0.15 Based on the Enforcement Policy, a major deviation from requirement occurs when the requirement has been rendered ineffective (e.g., a discharger disregards the requirement or the requirement is rendered ineffective in its essential functions). Prohibition C.1 of the Sanitary Sewer Order prohibits discharge of untreated sewage to waters of the United States. Discharging to waters of the United States rendered this prohibition ineffective in its essential functions. This represents a “major” deviation from the requirement. Based on Tables 1 and 2 of the Enforcement Policy, a factor of 0.15 applies to all the SSOs due to their Potential for Harm score of “5” and the “major” Deviation from Requirement. Adjustment for High Volume Discharges $10/day No adjustment The largest of the 12 SSOs was 11,500 gallons. This is not considered a “high volume discharge.” Therefore, $10 per gallon liability is appropriate. Initial Liability $32,078 The initial liability is determined by adding the individual liabilities for each of the 12 SSOs: Each individual SSO liability = (Per gallon factor x [SSO gallons discharged to surface water minus 1,000 gallons]) + (Per day factor x maximum per day liability allowed [i.e., $10,000] x number of days of SSO duration). January 4, 2008: $1,500 = (0.15 x 0 x 10) + (0.15 x 1 x 10,000) January 25, 2008: $1,500 = (0.15 x 0 x 10) + (0.15 x 1 x 10,000) January 25, 2008: $1,688 = (0.15 x 125 x 10) + (0.15 x 1 x 10,000) February 17, 2008: $9,390 = (0.15 x 5,260 x 10) + (0.15 x 1 x 10,000) April 28, 2008: $1,500 = (0.15 x 0 x 10) + (0.15 x 1 x 10,000) March 13, 2010: $1,500 = (0.15 x 0 x 10) + (0.15 x 1 x 10,000) April 22, 2010: $6,000 = (0.15 x 3,000 x 10) + (0.15 x 1 x 10,000) April 9, 2011: $1,500 = (0.15 x 0 x 10) + (0.15 x 1 x 10,000) PENALTY FACTOR VALUE DISCUSSION May 29, 2012: $1,500 = (0.15 x 0 x 10) + (0.15 x ...
PENALTY FACTOR VALUE DISCUSSION. Factor 1: The Degree of Toxicity of the Discharge (physical, chemical, biological, or thermal characteristics of the discharge) 2 High levels of turbidity in storm water discharges, such as those measure by Board staff during the 25 October 2021 inspection, can cloud the receiving water (which reduces the amount of sunlight reaching aquatic plants), clog fish gills, smother aquatic habitat and spawning areas, and impede navigation. Sediment can also transport other materials such as nutrients, metals, and oils and grease, which can also negatively impact aquatic life and aquatic habitat. Here, a score of 2 is appropriate because the discharged material poses a moderate risk or threat to potential receptors (i.e., the chemical and/or physical characteristics of the discharged material have some level of toxicity or pose a moderate level of threat to potential receptors).
PENALTY FACTOR VALUE DISCUSSION. The Degree of Toxicity of the Discharge 3 Untreated sewage contains elevated concentrations of ammonia, nitrate, coliform organisms and other substances which are known to cause adverse impacts to aquatic life, and to human health. Because the discharged material possessed “an above moderate risk or a direct threat to potential receptors”, a score of 3 was assigned for this factor. Actual Harm or Potential Harm to Beneficial Uses 2 The untreated sewage entered Dead Man Gulch Creek, tributary to South Laguna Creek, during a storm event. The beneficial uses of the Laguna Creek and its tributaries that could be impacted by the untreated sewage include municipal and domestic water supply, agricultural irrigation and stock watering, contact and non-contact water recreation, warm freshwater habitat, cold freshwater habitat, and wildlife habitat. The untreated sewage contains pathogens, nitrogen, ammonia, and biological oxygen demand. Elevated levels of these constituents can lead to low dissolved oxygen in the receiving water, impacts to aquatic life, and impacts to human health. The discharge was expected to have a below moderate Settlement Agreement R5-2019-0520 A-2 Attachment A: Penalty Methodology City of Galt PENALTY FACTOR VALUE DISCUSSION impact to beneficial uses as it is measurable in the short term, but not appreciable. Susceptibility to cleanup or abatement 1 None of the spill was recovered because the spill entered surface waters during a rain event. Per gallon and per day factor for discharge violations 0.15 The “Deviation from Requirement” is moderate because the SSS WDRs prohibit any discharge of sanitary sewage overflows from entering waters of the United States. The Prosecution Team has determined that the Discharger's intent was to have backup power available and it was the failure of the equipment that caused the spill. The discharge, therefore, is a moderate deviation from the requirements of the SSS WDRs. Volume discharged minus 1,000 gallons per event 300,000 gallons According to the Discharger, 301,000 gallons was discharged to surface water and not recovered. The total volume, minus 1,000 gallons per event, is used in the calculation. Adjustment for high volume discharges Yes, $2/gallon For large volume spills, the Enforcement Policy allows a reduction from the statutory maximum of $10/gallon and suggests $2/gallon for sewage spills. The Prosecution Team has determined that $2/gallon is appropriate in this matter. Per gallon penalty $90,0...
PENALTY FACTOR VALUE DISCUSSION. Ability to pay and continue in business No adjustment The City of Colfax is a public entity with the ability to raise funds. The Discharger has an annual operation and maintenance budget of $195,277 for sanitary sewer system facilities according to the CIWQS questionnaire. Economic benefit $14,119 Pursuant to Water Code section 13385(e), civil liability, at a minimum, must be assessed at a level that recovers the economic benefit of noncompliance derived from the acts that constitute the violation. The economic benefit of noncompliance for the violations is estimated at $14,119. Water Board staff calculated the economic benefit using information provided by the Discharger. Items considered in the economic benefit were preparation of a lift station SOP, SCADA monitoring, force main inspections, and reprogramming of the lift station pumping (see ACLC R5-2020-0507, Attachment C). Date of Evaluation: 2 June 2020 4 PENALTY FACTOR VALUE DISCUSSION Other factors as justice may require Reduction of Per Gallon Penalty to $1/gallon 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 has incurred over $3,000 in staff costs associated with the investigation and enforcement of the alleged violations which it is not included at this time. The Prosecution Team retains discretion to seek staff costs, which may increase, should this matter proceed to hearing. The City is a small community with a financial hardship as defined by Water Code section 13385(k). In addition, the Prosecution Team acknowledges that the City has invested significant resources into improving and upgrading its sanitary sewer collections system. Together, these circumstances warrant an additional reduction to the overall liability based on equitable considerations. The Prosecution Team has determined, as a settlement consideration, that a reduction in the per gallon penalty to $1 per gallon is appropriate. Adjusted Total Base Liability for Violations $49,845 Per gallon penalty of $1 per gallon applied to determine adjusted base liability Maximum liability $1,240,170 Based on Water Code section 13385: $10,000 per day per spill and $10 per gallon, minus the first 1,000 gallons per spill event. Minimum liability $15,531 Based on California Water Code section 13385, civil liability must be at least the economic benefit of non-compliance. Per the Enforcement Policy, the minimum liability is to be th...
PENALTY FACTOR VALUE DISCUSSION. Cleanup and Cooperation 1.0 The Discharger responded in a reasonable and prudent manner by purchasing a spill kit, updating the spill response plan, and making it available onsite. History of Violations 1.0 There is no known history of adjudicated violations. Total Base Liability $5,200 Initial liability x Culpability x Cleanup x History Violation 2 – Failure to pick up trash throughout site and to properly secure waste stockpiles. Attachment F, Section F.5 of the General Permit states “The discharge of garbage or other solid waste to lands within the Lake Tahoe Basin is prohibited.” Section VIII.A.10 states that dischargers shall “Contain and securely protect stockpiled waste material from wind and rain at all times unless actively being used.” Lahontan Water Board staff’s September 27, 2023 inspection found that waste and trash was located at various locations throughout the site (see inspection report photos 11, 31, 36, 42) and that waste stockpiles were not contained or securely protected (photos 17, 27). The QSP’s October 3, 2023 inspection includes four photos with the statement “consolidate and remove waste throughout site.” The QSP’s October 9, 2023 inspection report does not mention trash, other than to cover dumpsters prior to rain. Lahontan Water Board staff’s October 17, 2023 inspection found unconsolidated trash in the East Village. The Discharger’s October 30, 2023 submittal states that Deacon “will be diligent with garbage and debris collection and proper disposal” and that ▇▇▇▇▇▇ received additional training regarding solid waste on October 16, 19, and 26, 2023, as well as at all previous trainings. The submittal also states that the waste stockpiles identified by Lahontan Water Board staff were not waste but instead plastic “tarps” for use on inactive stockpiles. Staff understand that this plastic initially covered prefabricated materials delivered to the site. While it may be appropriate to reuse it in some circumstances, the inspection photos show that the plastic is a lighter-weight material that appears susceptible to photodegradation by sunlight and wind, leading to creation of microplastics. Because these piles of plastic were not actively being used, they needed to be protected from wind and rain.
PENALTY FACTOR VALUE DISCUSSION. Cleanup and Cooperation 1.0 Compliance improved after the September 27, 2023 inspection. History of Violations 1.0 There is no known history of adjudicated violations. Total Base Liability $11,700 Initial liability x Culpability x Cleanup x History
PENALTY FACTOR VALUE DISCUSSION. Cleanup and Cooperation 1.1 The Lahontan Water Board’s October 17, 2023 inspection found scattered trash, even though (a) the Discharger had prior notice of this inspection, (b) the Lahontan Water Board’s September 27, 2023 inspection found violations of the General Permit related to trash, and (c) Deacon received training regarding trash the day before the Lahontan Water Board’s October 17, 2023 inspection. A reasonable discharger would have ensured that trash was picked up prior to the Lahontan Water Board’s October 17, 2023 inspection. History of Violations 1.0 There is no known history of adjudicated violations. Total Base Liability $11,880 Initial liability x Culpability x Cleanup x History
PENALTY FACTOR VALUE DISCUSSION. Cleanup and Cooperation 1.0 The Lahontan Water Board’s follow-up inspection on October 17, 2023 found that the Discharger had consolidated all loose piles of earthen material into two stockpiles. One stockpile was appropriately protected with hydro-mulch while the other stockpile was protected with black plastic (but was missing a fiber roll berm). History of Violations 1.0 There is no known history of adjudicated violations. Total Base Liability $15,600 Initial liability x Culpability x Cleanup x History Violation 4 – Failure to install BMPs at perimeter of site and/or failure to correctly install BMPs.
PENALTY FACTOR VALUE DISCUSSION. Cleanup and Cooperation 1.1 The failure to protect drain inlets was discussed during the Lahontan Water Board’s September 27, 2023 inspection and included as a violation both in that inspection report and in the October 13, 2023 Notice of Violation. The Discharger should have reviewed the documents and installed protection prior to the Lahontan Water Board’s follow-up inspection on October 17, 2023. However, the Discharger did not do so. The Discharger submitted photographs on October 31, 2023 showing that fiber rolls had been installed around drain inlets. History of Violations 1.0 There is no known history of adjudicated violations. Total Base Liability $5,280 Initial liability x Culpability x Cleanup x History The Enforcement Policy states that five other factors must be considered before obtaining the final liability amount. Economic benefit $25,452 See attached document Other factors as justice may require Not included The costs of investigation and enforcement are “other factors as justice may require” and could be added to the liability amount. The Lahontan Water Board Prosecution Team has incurred over 50 hours and over $5,000 in staff costs associated with the investigation and enforcement of the alleged violations. While this amount could be added to the penalty, it is not added at this time but will be added if this matter is not settled. Maximum liability $190,000 Based on California Water Code section 13385: $10,000 per day per violation. Minimum liability $27,997 Based on California Water Code section 13385, civil liability must be at least the economic benefit of non-compliance. Per the Enforcement Policy, the minimum liability is to be the economic benefit plus 10%. Final Liability $79,690 The final liability amount is the total base liability plus any adjustment for the ability to pay, economic benefit, and other factors. The final liability must be more than the minimum liability and less than the maximum liability. Attachment: Economic Benefit Analysis BEN 2022.0.0 1 Violation 1A: Spill Kit $ 526 GDP 10/16/2023 Y $ 37,037 GDP 10/18/2023 10/1/2022 10/16/2023 2/1/2024 7.40% 16 Violation 1B: Spill Response Plan $ 187 ECI 1/1/2023 Y 10/1/2022 10/20/2023 2/1/2024 7.40% 5 Violation 1C: Spill Response Training $ 4,050 ECI 1/1/2023 Y 10/1/2022 10/19/2023 2/1/2024 7.40% 116 Violation 2&3: Covering Disposal Containers, Stockpiles, and Construction Material; and Picking Up Waste $ 284 ECI 1/1/2023 N 9/27/2023 2/1/2024 7.40% 181 Violation 4: Perimet...
PENALTY FACTOR VALUE DISCUSSION. Cleanup and Cooperation 1.1 The Discharger installed additional fiber rolls at various points along the perimeter of the site prior to the Lahontan Water Board’s October 17, 2023 inspection. However, most of the fiber rolls were not trenched and were therefore ineffective.2 The Discharger submitted photographs on October 31, 2023 showing that fiber rolls had been trenched. History of Violations 1.0 There is no known history of adjudicated violations. Total Base Liability $17,160 Initial liability x Culpability x Cleanup x History Violation 5 – Failure to store chemicals in watertight containers and with secondary containment.