Per Gallon Assessment for Discharge Violation. When there is a discharge, the Central Valley Water Board is to determine an initial liability amount on a per gallon basis using the Potential for Harm score and the Extent of Deviation from Requirement of the violation. The Potential for Harm Score was determined in Step 1, and is 7. In this case, the Central Valley Water Board finds the Extent of Deviation from Requirement is “major.” The Statewide General Order prohibits any SSO that results in a discharge of raw sewage to waters of the United States. Table 1 of the 2010 Enforcement Policy (p. 14) is used to determine a “per gallon factor” based on the total score from Step 1 and the level of Deviation from Requirement. For this particular case, the factor is 0.31. This value of 0.31 is multiplied by the volume of discharge and the days of discharge, as described below. The 2010 Enforcement Policy allows for a reduction from the maximum penalty amount of $10 per gallon when the discharge is considered high volume. The 2-12 January 2017 spill incident discussed in this violation was 2,690,000 gallons and is considered “high volume” based on the total gallons discharged. Through the course of settlement negotiations, the Parties have determined that a reduction to $1 per gallon is appropriate in this matter for violations 1 through 4. Combined, the City discharged a total of 2,788,310 to waters of the United States as alleged herein. Therefore, the Parties agreed that the overall liability due to the high volume discharged, was inappropriate given the circumstances absent a reduction to the per gallon penalty. Specifically, the Prosecution Team acknowledges that the City is a small community with a financial hardship and that significant upgrades, as discussed in the Stipulated Order, are ongoing to upgrade the City’s sanitary sewer collection system and wastewater treatment plant. These upgrades will bring the City’s facilities into compliance with state requirements and will prevent future discharges to surface waters from the City. In light of these equitable considerations, a per gallon penalty of $1 is applied to all violation alleged herein. Water Code section 13385(c)(2) states that the civil liability amount is to be based on the number of gallons discharged but not cleaned up, over 1,000 gallons for each spill event. Of the 2,690,000 gallons spilled, a total of 2,689,000 gallons were discharged in excess of 1,000 gallons into waters of the United States. The Per Gallon Assessment is as follows:
Per Gallon Assessment for Discharge Violation. When there is a discharge, the Central Valley Water Board is to determine an initial liability amount on a per gallon basis using the Potential for Harm score and the Extent of Deviation from Requirement of the violation. A Potential for Harm Score of 7 was determined in Step 1. In this case, the Central Valley Water Board finds the Extent of Deviation from Requirement is “major”. The Statewide General Order prohibits any SSO that results in a discharge of raw sewage to waters of the United States. Therefore, when the Discharger discharged 465,227 gallons of untreated sewage which reached surface waters, it rendered this prohibition ineffective. Table 1 of the 2017 Enforcement Policy (p. 14) is used to determine a per gallon factor based on the total score from Step 1 and the level of Deviation from Requirement. For this particular case, the factor is 0.41. This value of 0.41 is multiplied by the volume of discharge and the days of discharge, as described below. The 2017 Enforcement Policy allows for a reduction from the maximum penalty amount of $10 per gallon when the discharge is over 100,000 gallons and considered high volume. The 2 February 2019 spill incident discussed in this violation was 465,227 gallons and is considered “high volume” based on the total gallons discharged. In order to facilitate the settlement of this matter, the Prosecution Team has determined that a reduction to $1 per gallon is appropriate in this case. Water Code section 13385(c)(2) states that the civil liability amount is to be based on the number of gallons discharged but not cleaned up, over 1,000 gallons for each spill event. Of the 465,227 gallons spilled, a total of 464,227 gallons were discharged in excess of 1,000 gallons into waters of the United States. The Per Gallon Assessment is as follows:
Per Gallon Assessment for Discharge Violation. When there is a discharge, the Central Valley Water Board is to determine an initial liability amount on a per gallon basis using the Potential for Harm score and the Deviation from Requirement of the violation. The Deviation from the Requirement is either Minor, Moderate, or Major. Water Code section 13376 and Clean Water Act section 301 prohibit unauthorized discharge of waste to waters of the United States. The discharge alleged here rendered this requirement ineffective in its essential function of protecting water quality and represents a Major Deviation from the Requirement.
Per Gallon Assessment for Discharge Violation. When there is a discharge, the Central Valley Water Board determines an initial liability amount on a per gallon basis using the Potential for Harm score and the Deviation from Requirement of the violation. Table 1 of the Enforcement Policy is used to determine a per gallon factor based on the Potential for Harm score from Step 1 and the Deviation from Requirement. With a Potential for Harm Score of 6 and a major Deviation from Requirement, the per gallon factor is 0.28. This value of 0.28 is multiplied by the volume of discharge and the days of discharge, as described below. Pursuant to Water Code section 13385, subdivision (c), the per gallon administrative civil liability shall not exceed $10 per gallon of waste discharged over 1,000 gallons that was not cleaned up. Of the 211,654 gallons of raw sewage discharged into Dry Creek, a total of 210,654 gallons exceeded 1,000 gallons and was not cleaned up. The Enforcement Policy allows for a reduction from the maximum penalty of $10 per gallon when the discharge is considered high volume. For high volume discharges between 100,000 gallons and 2,000,000 gallons, the Central Valley Water Board may elect to use a value between $2.00 per gallon and $10.00 per gallon. For this violation, the discharge volume subject to administrative civil liability is 210,654 gallons and is considered high volume. The Prosecution Team determined that an assessment of $2.00 per gallon is appropriate and will not result in an inappropriately small administrative civil liability for this violation. Violation 1: Per Gallon Assessment 0.28 per gallon factor x 210,654 gallons x $2 per gallon = $117,966.24
Per Gallon Assessment for Discharge Violation. When there is a discharge, the Central Valley Water Board determines an initial liability amount on a per gallon basis using the Potential for Harm score and the Deviation from Requirement of the violation. Using Table 1 of the Enforcement Policy and with a Potential for Harm score of 7 and a major Deviation from Requirement, the per gallon factor is 0.41. Pursuant to Water Code section 13385, subdivision (c), the civil liability amount shall not exceed $10 per gallon of waste discharged but not cleaned up that exceeds 1,000 gallons. For this violation, of the 211,650 gallons discharged, 210,650 gallons exceeded 1,000 gallons and was not cleaned up. For high volume discharges, the Central Valley Water Board may elect to use a value between $2.00 per gallon and $10.00 per gallon. For this violation, the discharge volume subject to administrative civil liability is 210,650 gallons and is considered high volume. The Prosecution Team determined that an assessment of $2.00 per gallon is appropriate and will not result in an inappropriately small administrative civil liability for this violation. 0.41 per gallon factor x 210,650 gallons x $2 per gallon = $172,733 When there is a discharge, the Central Valley Water Board determines an initial liability amount on a per day basis using the same Potential for Harm and the Extent of Deviation from Requirement that were used in the per gallon analysis. Using Table 2 in the Enforcement Policy, the per day factor is 0.41. According to the Discharger’s technical report, the Discharger’s contractor working on the pipe repair estimates that this SSO began around 10:15am and stopped around 11:30am on the same day. The liability is calculated as the per day factor multiplied by the number of days multiplied by the statutory maximum of $10,000 per day of violation. (Water Code § 13385(c)(1).)
Per Gallon Assessment for Discharge Violation. When there is a discharge, the Central Valley Water Board is to determine an initial liability amount on a per gallon basis using the Potential for Harm score and the Extent of Deviation from Requirement of the violation. The Potential for Harm Score was determined in Step 1, and is 7. In this case, the Central Valley Water Board finds the Extent of Deviation from Requirement is “moderate” because the WDRs prohibit any sanitary sewer overflow that results in a discharge of raw sewage to waters of the United States. Table 1 of the Enforcement Policy (p. 14) is used to determine a “per gallon factor” based on the total score from Step 1 and the level of Deviation from Requirement. For this particular case, the factor is 0.20. This value of 0.20 is multiplied by the volume of discharge and the days of discharge, as described below. The Enforcement Policy allows for a reduction in the maximum penalty amount of $10 per gallon for high volume discharges. Although the Discharger probably recovered a portion of spill, it is not possible to determine the exact volume that remained in the environment and Board staff is using the full volume in the penalty calculation. The 17- 19 October 2015 spill incident of 188,125 gallons is considered “high volume” based on the total gallons discharged and therefore reduction to $2/gallon has been applied in this case. CWC section 13385(c)(2) states that the civil liability amount is to be based on the number of gallons discharged but not cleaned up3, over 1,000 gallons for each spill event. Of the 188,125 gallons spilled, a total of 187,125 gallons were discharged in excess of 1,000 gallons into waters of the United States. The Per Gallon Assessment is as follows:
Per Gallon Assessment for Discharge Violation. When there is a discharge, the Central Valley Water Board is to determine an initial liability amount on a per gallon basis using the Potential for Harm score and the Extent of Deviation from Requirement of the violation. The Potential for Harm Score was determined in Step 1, and is 6. In this case, the Central Valley Water Board finds the Extent of Deviation from Requirement is “minor” because the Discharger’s general intent is to follow the WDRs. Table 1 of the Enforcement Policy (p. 14) is used to determine a “per gallon factor” based on the total score from Step 1 and the level of Deviation from Requirement. For this particular case, the factor is 0.08. California Water Code section 13350(a) states that a person in violation of a waste discharge requirement is civilly liable. CWC section 13350(e)(1)(B) states that the civil liability calculated on for a per gallon basis shall not exceed $10 for each gallon of waste discharged. Therefore, a civil liability of $10/gallon has been applied in this case. CWC section 13385(c)(2) states that the civil liability amount is to be based on the number of gallons discharged but not cleaned up, over 1,000 gallons for each spill event. As shown on Attachment A, a total of 12,088 gallons were discharged in excess of 1,000 gallons and not cleaned up. The Per Gallon Assessment is calculated as on a per-gallon basis is as follows:
Per Gallon Assessment for Discharge Violation. Consistent with the Enforcement Policy (p. 13), the Prosecution Team considered “whether to assess both per gallon and per day penalties” and determined that any penalty consistent with prior orders and settlements resolving discharges of potable water would be in excess of $6 million. The Prosecution Team posited that a penalty over a million dollars would be excessive given the circumstances of the discharge. Rather than manipulate the Enforcement Policy factors by selecting factors that would not be appropriate or consistent with other discharges, or adjusting the discharge volume, the Prosecution Team elected to proceed with a daily penalty rather than with a daily and volumetric penalty. Therefore, the per-gallon assessment for the alleged discharge violation was not considered in this assessment.
