Per Day Assessments for Discharge Violations. When there is a discharge, the Regional Board is to determine the initial liability on a per day basis using the Potential for Harm score from Step 1 and the Deviation from Requirement. The Per Day Assessment is calculated as (per day factor) x (number of days of violation) x (per day statutory maximum liability). Table 2 of the Enforcement Policy (p. 15) is used to determine a “per day factor” for discharge violations based on the total score from Step 1 (a score of 6) and the Deviation from Requirement (Major). The per day factor is 0.28. The number of days of violation is one. The per day statutory maximum liability under Water Code section 13385, subdivision (c) is $10,000. Per Day Liability = 0.28 x 1 day x $10,000 = $2,800 The Per Day Liability of $2,800 is the Initial ACL Amount for this violation.
Per Day Assessments for Discharge Violations. The Enforcement Policy also specifies that where there is a discharge, the Water Boards shall determine an initial liability factor per day based on the same parameters discussed above. Table 2 of the Enforcement Policy is used to determine a Per Day Factor for the alleged violation. The per day assessment is then determined by multiplying the Per Day Factor by the maximum per day amount allowed under the Water Code. Where deemed appropriate, such as for a large-scale spill, both per gallon and per day amounts are considered under Water Code section 13385, and are therefore applied here to all SSOs.
Per Day Assessments for Discharge Violations. When there is a discharge, the Board is to determine an initial liability amount on a per day basis using the same Potential for Harm factor score (5) and the extent of Deviation from Requirement (Major). The “per day” factor (determined from Table 2 of the Enforcement Policy) is 0.15. The discharge of sediment and concrete debris occurred on January 24, 25, 31, 2018 and February 1, 2, 5, 6, 7, 8, and 9, 2018, for a total of ten days of violation. Therefore, the Per Day Assessment is calculated as (0.15 factor from Table 2) x (10 days) x ($10,000 per day) = $15,000.
Per Day Assessments for Discharge Violations. The Enforcement Policy also specifies that where there is a discharge, the Regional Water Board shall determine an initial liability factor per day based on the Potential for Harm score and the extent of Deviation from Requirement of the violation as discussed above. These factors are used to determine a Per Day Factor for the violation by consulting Table 2 of the Enforcement Policy. The per day assessment is then determined by multiplying the Per Day Factor by the maximum per day amount allowed under the California Water Code. Where deemed appropriate, both per gallon and per day amounts are considered under California Water Code section 13385. As discussed in Step 2.a above, the Prosecution Team determines that the Deviation from Requirement for the alleged violation is Major. As determined in Step 1, the Potential for Harm factor for the alleged violation is 4. Therefore, the Prosecution Team determines that the Per Gallon Factor is 0.08 in accordance with Table 2 of the Enforcement Policy. Initial Liability amount for the alleged violation: Per gallon liability: $0 Water Code section 13385 states that a liability of up to ten dollars ($10) multiplied by the number of gallons by which the volume discharged but not cleaned up exceeds 1,000 gallons may be imposed administratively by the Regional Water Board. The per gallon liability is $0 here since the waste discharged was less than 1,000 gallons. Per day liability: $10,000 x 0.08 x 1 day = $800
Per Day Assessments for Discharge Violations. When there is a discharge, the Board is to determine an initial liability amount on a per day basis using the same Potential for Harm factor score (6) and the extent of Deviation from Requirement (Major) that were used in the per-gallon analysis. The “per day” factor (determined from Table 2 of the Enforcement Policy) is 0.22. According to the Discharger’s 19 August 2016 Site Assessment Survey, the first day of snow removal operations from the parking lots that were resurfaced with asphalt grindings was on 3 November 2015. Although asphalt grindings are still in place in several areas without a permit, Board staff stopped the days of violation on 31 October 2016 to facilitate settlement negotiations. The discharged asphalt grindings that are the subject of this enforcement action were in place without a permit for a total of 364 days. Therefore, the Per Day Assessment is calculated as (0.22 factor from Table 2) x (364 days) x ($10,000 per day) = $800,800.
Per Day Assessments for Discharge Violations. The Water Boards shall calculate an initial liability factor for each discharge violation, considering Potential for Harm and the extent of Deviation from Requirement.
Per Day Assessments for Discharge Violations. 0.22 When there is a discharge, the Water Board is to determine the initial liability on a per day basis using the Potential for Harm score from Step 1 and the Extent of Deviation from Requirements. The Potential for Harm score from Step 1 is 6 for Violations 6 through 8. Deviation from the Requirement: Major The Extent of Deviation from Requirements is considered Major because the 401 Certification conditions prohibiting the discharge or threat of discharge from equipment maintenance activities and construction material and debris associated with the project were rendered ineffective when discharges were observed from multiple project areas into the Los Angeles River. Table 2 of the Enforcement Policy (p. 15) is used to determine a “per day factor” based on the total score from Step 1 and the level of Deviation from Requirement. The per day factor for Violations 6 through 8 is 0.22. The Per Day Liability is calculated as per day factor x (number of days) x $10,000 per day. Violations 6, 7 and 8: Per Day Liability = $10,000 X 0.22 X 1 day = $2,200 per violation
Per Day Assessments for Discharge Violations. When there is a discharge, the Water Board is to determine the initial liability on a per day basis using the Potential for Harm score from Step 1 and the Extent of Deviation from Requirements. The Potential for Harm score from Step 1 is 6. Deviation from the Requirement: Major The violation is characterized as either a Minor, Moderate, or Major deviation from the requirement. In this case, the Prosecution Team characterized the violation as a Major Deviation from Requirement. Additional Condition 8 of Attachment B prohibited the City from placing construction material and any other substances in a manner that may result in a discharge and adversely impact water quality standards. In addition, Attachment A Condition 6 of the Amended Certification and Attachment B Condition 14 of the Certification provided that “no work will take place in the Channel unless there is a five day clear forecast. All equipment, large or small, including all materials will be removed from the Channel starting five days in advance of any storm or rain event.” By not removing construction equipment/material and a portable toilet in advance of the storms, the City rendered the requirement ineffective. In addition, it was possible that a discharge resulting in adverse impacts to water quality would result if the construction equipment and portable toilet remained in the Channel during a significant precipitation event. A Major Deviation from the Requirement was assessed.
Per Day Assessments for Discharge Violations. When there is a discharge, the Water Board is to determine the initial liability on a per day basis using the Potential for Harm score from Step 1 and the Extent of Deviation from Requirements. The Potential for Harm score from Step 1 is 7. Deviation from the Requirement: Major The violation is characterized as either a Minor, Moderate, or Major deviation from the requirement. In this case, the Prosecution Team characterized this violation as a Major Deviation from the Requirement because the discharge of wash water from the washing of the equipment was in direct contradiction to the requirement in the 401 Certification to conduct all equipment maintenance, including the washing of equipment, outside of the Los Angeles River. The requirement was rendered ineffective and therefore the assessment of a “major” deviation from requirement is appropriate.
Per Day Assessments for Discharge Violations. When there is a discharge, the Water Board is to determine the initial liability on a per day basis using the Potential for Harm score from Step 1 and the Extent of Deviation from Requirements. The Potential for Harm score from Step 1 is 6. Deviation from Requirement: Major The violation is characterized as either a Minor, Moderate, or Major deviation from the requirement. In this case, the Prosecution Team characterized the violation as a Major Deviation from Requirement because the Discharger disregarded this requirement by exceeding levels of turbidity and TSS as prescribed in the 401 Certification and the Los Angeles Regional Water Quality Control Plan (Basin Plan, p. 3-38) by up to 59% and 137% respectively. Compliance with numeric water quality objectives were not achieved, thereby warranting the assessment of a “major” deviation from requirement.
