On August 4, 2016, the State Water Resources Control Board (State Water Board) issued proposed amendments to its Water Quality Enforcement Policy (Enforcement Policy).  The Enforcement Policy, which was last revised in 2009, details the factors that the State Water Board and the nine regional water quality control boards (collectively “Water Boards”) must consider when assessing administrative civil liability for violations of the Porter-Cologne Water Quality Control Act.  The proposed amendments to the Enforcement Policy are intended to clarify and add to the principles informing the State Water Board’s discretion as well as the methods and multipliers for calculating penalties, in an attempt to make enforcement across Water Boards more uniform.

Significant revisions and additions to the Enforcement Policy include:

• The proposed amendments would require enforcement staff at the Water Boards to meet at least quarterly to pre-screen and evaluate potential enforcement cases.  Additionally, each regional water quality control board would appoint an Enforcement Coordinator focused on implementing the Enforcement Policy.
• The intent of the “fair, firm, and consistent” enforcement principle would be further defined to require that administrative civil liability be set at a minimum level that ensures no competitive economic advantage is gained through non-compliance.  Additionally, the proposed amendments are intended to add transparency as an element to the policy, explaining that enforcement orders should present “evidence and policy-based findings.”
• The proposed amendments recognize the effect of administrative civil penalties on disadvantaged communities served by publicly-owned treatment works and would instruct the Water Boards to consider the financial hardships that costs of compliance may pose for disadvantaged communities.
• As for calculating penalties, the proposed amendments would alter some of the allowable deviations from the penalty requirement for per gallon and per day assessments; add discretionary values and other factors when setting the per gallon value for very large spills; clarify and revise the multipliers for the discharger’s prior history of violations and the discharger’s cleanup efforts and cooperation; and revise the manner in which the Water Boards can consolidate per day penalties for violations lasting longer than 30 days.
• For non-discharge violations, like the failure to submit required plans or reports, the proposed amendments explain that the Water Boards should consider the extent to which the non-discharge violation impairs, or has the potential to impair, the Water Boards’ ability to perform their statutory or regulatory functions.
• The proposed amendments would add new details on how the Water Boards should evaluate and make adjustments based on a discharger’s ability to pay the Total Base Liability Amount.
• The proposed amendments would describe how the Water Boards should calculate the costs of enforcement when enforcement staff recommends that these costs be included in the liability amount.

Written comments on the proposed amendments to the Enforcement Policy must be submitted by September 13, 2016, and the hearing on adoption of the proposed amendments is scheduled for October 18, 2016.  Please contact Brittany Lewis-Roberts at blewis-roberts@somachlaw.com for more information.

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