Per Day Assessment for Non-Discharge Violations. The “per day” factor is calculated for each non-discharge violation considering the (a) potential for harm and (b) the extent of the deviation from the applicable requirements.
Per Day Assessment for Non-Discharge Violations. The alleged violation is a discharge violation. Therefore, this step is not applicable.
Per Day Assessment for Non-Discharge Violations. This factor is determined by a matrix analysis using the potential for harm and the deviation from requirements. The potential for harm is moderate because while the Discharger’s failure to use a certified laboratory, as required by WDRs Orders R7-2003-0049 and R7-2008-0020, undermines the Regional Water Board’s ability to determine whether the Discharger is in compliance with the effluent limitation for E. coli. There is no evidence to suggest that the results analyzed by the uncertified lab were inaccurate. However, lack of certification for the analyses performed raises the question of reliability. There was common practice that most of wastewater treatment plants around the Imperial Valley using nearly uncertified laboratory for saving time and expenses. Environmental Laboratory Accreditation Program (ELAP) certification is the State Department of Health Services method of verification that the Lab is qualified to perform the analyses. Without the proper certification, the quality and validity of the data is indeterminate. The deviation from requirements is moderate because a laboratory was used to analyze the samples, rather than no laboratory at all. NSD’S failure to use a certified lab (an Imperial County wide issue) should be weighed against the NSD’s good faith efforts to obtain the required sampling and an increased consideration to findings, for a constituent (E. Coli) with a low potential for harm. The lab in question had been properly certified in the past and also had achieved interim certification for the subject test. It should be noted that since the E. Coli concentrations in receiving water (R Drain) were much higher than the effluent limitation levels imposed by the RWQCB for that same time period, the potential for harm from NSD violation should considered low. The raw water samples in the R Drain ranged from 110 MPN/100ML to 900 MPN/100ML according to 2008 Reports. The deviation from requirements is moderate given that NSD complied with the testing requirements, and had obtained prior verification of laboratory certification. The intended effectiveness of the requirement has been partially compromised (moderate) but not necessarily rendered ineffective (major). Therefore, the Prosecution Team assigned a per day factor of 0.3 for these thirty-five (35) violations. Applying the per day factor to the number of violations times $10,000 per violation yields an initial liability of $105,000 (number of violations x per day factor x maximum st...
Per Day Assessment for Non-Discharge Violations. In this case, this factor does not apply because Violation #2 is related to a discharge and the liability was determined in Step 2.
Per Day Assessment for Non-Discharge Violations. Potential for Harm: Moderate Deviation from Requirement: Major Per Day Factor: 0.55
Per Day Assessment for Non-Discharge Violations. The potential harm is moderate because the Discharger was operating under the CDO with higher interim effluent limitation for copper that has potential risk to impact aquatic lives in the receiving water. The deviation from requirements is moderate. The Discharger has struggled to maintain continuity at the Niland Sanitary District (NSD) Board of Directors and have the necessary institutional capacity to comply with the CDO requirements. The initial CDO Milestone was completed on schedule, inclusive and up to completion of funding application for the selected project of the 2012 Preliminary Engineering Report (PER). The 2012 PER was procured and directed under the United States Environmental Protection Agency’s Planning and Development Assistance Program administered through the Border Environmental Cooperation Commission (BECC) and their qualified engineer project managers. However, subsequent work to initiate the design (on schedule with the CDO) uncovered critical technical omissions in the PER that deemed the alternatives considered unfeasible (non-percolating soils in the area). This critical technical flaw resulted in a subsequent need for additional funding agreements, procurement processes, and engagement of other firms to prepare another PER for a new compliance project also demanded new environmental documents. These resulted in the exceedance of the CDO deadlines. To complicate matters, NSD experienced substantial turnovers in staff and its legislative body during this period. There was a time in the recent past where the Imperial County Board of Supervisors was called upon to appoint members to the NSD Board of Directors because it lacked a quorum to conduct official businesses. With that and staff turnover, there was no institutional capacity or knowledge to address issues associated with the subject CDO. Nevertheless, NSD must comply with Board Orders. Therefore, the Prosecution Team assigned a per day factor of 0.35 for nine-hundred and fifteen (915) days of violation. Under Water Code section 13350(e), the maximum liability for these violations is $4,575,000 (915 days of violation x $5000/day). Applying the per day factor to the maximum liability yields an initial liability of $1,601,250 (0.35 x $4,575,000)
Per Day Assessment for Non-Discharge Violations. This alleged violation alleges that Lehigh did not properly operate and maintain its facility in an appropriate and prudent manner, contrary to permit requirements (see Order R2-2019-0024, Attachment D, section I.D) by failing to inspect and address decommissioned, but still hydraulically connected, infrastructure within the potable water system. For this alleged non-discharge violation, the Prosecution Team determined that both the “potential for harm” and “deviation from requirement” are moderate. The Enforcement Policy states that most alleged non-discharge violations should be considered to present a moderate potential for harm. It is evident from previous enforcement against Lehigh, for alleged discharge violations and effluent limitation exceedances, that facility operations have improved as a result of Regional Water Board oversight. The enforcement message has been delivered and Lehigh has responded. In addition, Lehigh had implemented some detection measures for the Fresh Water Tank of the potable water system, indicating that the requirements have been somewhat effective. However, failure to adequately inspect and safely decommission aging infrastructure resulted in this alleged violation. This alleged non-discharge violation could have been avoided if proactive efforts had taken place to address the small branch pipeline, rather than relying solely on automatic detection systems that did not effectively catch the discharge (because the small branch pipe is located after the Fresh Water Tank, the Fresh Water Tank remained at capacity, and did not alert Lehigh staff to a problem in the remote location). Utilizing the table in the Enforcement Policy (p. 16), a per-day factor of 0.35 was applied.
Per Day Assessment for Non-Discharge Violations. During the July 16, 2019 Regional Water Board staff inspection, BMPs were not installed at the northern, western, and eastern perimeters of the Site. As a result, sediment was tracked off-site. At the time of the inspection, Regional Water Board staff did not observe measures in place to clean the streets. The Discharger continued to inadequately install BMPs at the western perimeter of the Site and caused off-site track-out of construction materials. BMP inspection reports by the QSP between October 18, 2019 to January 9, 2020 identified deficient off-site tracking controls and failures to clean sediment, debris, or mud from public roads where they intersect with the Site’s access roads.
Per Day Assessment for Non-Discharge Violations. An Initial Liability Amount for each non-discharge violation is determined by considering the Potential for Harm and extent of deviation from applicable requirements for each violation.
