Penalty Policy Discussion for Penalty Policy Discussion for Violations of the Construction Storm Violations of the Construction Storm

Water RequirementsWater Requirements

Construction SW FormulaConstruction SW Formula

The overall Penalty Formula is:The overall Penalty Formula is:

Bottom Line Penalty = (Economic Benefit) + Bottom Line Penalty = (Economic Benefit) + (Gravity) +/- (Gravity Adjustment Factors) - (Gravity) +/- (Gravity Adjustment Factors) - (Litigation Considerations) - (Ability to Pay) (Litigation Considerations) - (Ability to Pay) – (Supplemental Environmental Projects)– (Supplemental Environmental Projects)

Economic BenefitEconomic Benefit

The economic benefit of noncompliance is The economic benefit of noncompliance is derived from several categories of derived from several categories of violation of the construction storm water violation of the construction storm water requirements: requirements:

BENBENTotalTotal = BEN = BENPermitPermit + BEN + BENSWPPPSWPPP + BEN + BENBMPsBMPs

+ BEN+ BENInspectInspect + BEN + BENMaintenanceMaintenance

Economic BenefitEconomic Benefit

For each type of violation, the guidance For each type of violation, the guidance addresses how specific avoided or addresses how specific avoided or delayed costs should be input into the delayed costs should be input into the BEN model including:BEN model including:

whether costs are capital costs, annual whether costs are capital costs, annual costs or one-time costscosts or one-time costs; ;

whether costs are avoided or delayed.whether costs are avoided or delayed.

Avoided or DelayedAvoided or Delayed Input costs as avoided costs if money never Input costs as avoided costs if money never

spent:spent: Permit never obtainedPermit never obtained SWPPP never completed or updatedSWPPP never completed or updated BMPs never installed or implementedBMPs never installed or implemented BMPs never fixed or maintainedBMPs never fixed or maintained

Input costs as delayed if money spent late:Input costs as delayed if money spent late: Permit obtained after construction commencedPermit obtained after construction commenced BMPs installed or implemented after construction BMPs installed or implemented after construction

commenced commenced SWPPP completed after construction beganSWPPP completed after construction began BMPs fixed or maintained late.BMPs fixed or maintained late.

Types of CostsTypes of Costs

Capital Costs (per BEN model):Capital Costs (per BEN model): Depreciable capital expenditures for things Depreciable capital expenditures for things

that wear out such as buildings, equipment or that wear out such as buildings, equipment or other long-lived assets.other long-lived assets.

This cost category is generally not applicable This cost category is generally not applicable to structural controls installed at construction to structural controls installed at construction sites because such controls are generally sites because such controls are generally short-lived or wear out quickly and are short-lived or wear out quickly and are therefore not depreciable.therefore not depreciable.

Types of CostsTypes of Costs

One-time nondepreciable costs (per BEN One-time nondepreciable costs (per BEN model):model): Delayed or avoided expenditures the violator Delayed or avoided expenditures the violator

should have made earlier (to prevent the should have made earlier (to prevent the violations) that need to be made only once, do violations) that need to be made only once, do not involve the purchase of equipment, and not involve the purchase of equipment, and are non-depreciable (i.e., do not wear out).are non-depreciable (i.e., do not wear out).

For construction sites, applies to purchase and For construction sites, applies to purchase and installation of BMPs that have a short life span, installation of BMPs that have a short life span, and are used and paid for within a short period and are used and paid for within a short period of time (e.g., a year).of time (e.g., a year).

One-time Nondepreciable CostsOne-time Nondepreciable Costs

Can include: Can include: Cost of structural controls such as silt fences, Cost of structural controls such as silt fences,

storm drain inlet protection, sediment basins; storm drain inlet protection, sediment basins; Cost of certain nonstructural BMPs such as Cost of certain nonstructural BMPs such as

seeding and mulching for stabilization;seeding and mulching for stabilization; Cost of obtaining a permit (permit fee, Cost of obtaining a permit (permit fee,

preparation of NOI);preparation of NOI);

One-time Nondepreciable CostsOne-time Nondepreciable Costs

Can included (continued):Can included (continued):

Cost of developing SWPPP;Cost of developing SWPPP; Cost of updating SWPPP when required;Cost of updating SWPPP when required; In some cases, delayed or avoided In some cases, delayed or avoided

maintenance;maintenance; In some cases, missed inspections.In some cases, missed inspections.

Types of CostsTypes of Costs

Annually Recurring Costs (per BEN Annually Recurring Costs (per BEN model):model):

Costs associated with operating and Costs associated with operating and maintaining the required pollution control maintaining the required pollution control equipment or structural controls that the equipment or structural controls that the violator avoided during the period of violator avoided during the period of violations.violations.

Annually Recurring CostsAnnually Recurring Costs

Avoided annually recurring costs include:Avoided annually recurring costs include: Avoided nonstructural BMPs that should have Avoided nonstructural BMPs that should have

been conducted on a regular basis, such as been conducted on a regular basis, such as general good housekeeping and street general good housekeeping and street sweeping;sweeping;

Avoided maintenance costs such as regularly Avoided maintenance costs such as regularly removing sediment from silt fences and inlet removing sediment from silt fences and inlet protection, regularly repairing silt fencing;protection, regularly repairing silt fencing;

Missed inspections.Missed inspections. Input TOTAL ANNUAL cost.Input TOTAL ANNUAL cost.

GRAVITYGRAVITY

The Gravity component formula is: The Gravity component formula is:

Monthly Gravity = (B + D) x $1000Monthly Gravity = (B + D) x $1000

Where B=Health and Environmental Harm and Where B=Health and Environmental Harm and D=Significance of Non-Effluent Limit Violations (absent D=Significance of Non-Effluent Limit Violations (absent are significance and number of effluent violations).are significance and number of effluent violations).

B FactorB Factor

Determine an appropriate value for the B factor Determine an appropriate value for the B factor using the B Factor table in the Guidance for using the B Factor table in the Guidance for each month that one or more violations present each month that one or more violations present actual or potential harm.actual or potential harm.

B Factor table is based on: whether human B Factor table is based on: whether human health and/or environment is impacted; whether health and/or environment is impacted; whether impacts are actual or potential; and classification impacts are actual or potential; and classification of the receiving water as Low, Medium or High of the receiving water as Low, Medium or High quality.quality.

B Factor MatrixB Factor MatrixWater Water ClassClass

LowLow MediumMedium HighHighActual or Actual or Potential Potential HarmHarm POTPOT ACTACT POTPOT ACTACT POTPOT ACTACTHuman Human HealthHealth 0-50-5 1-101-10 0-150-15 1-251-25 0-250-25 1-501-50

Environ-Environ-mentment 0-30-3 1-51-5 0-70-7 1-101-10 0-150-15 1-201-20

Receiving Water ClassificationReceiving Water Classification

HighHigh: public water supply; shellfish harvesting without depuration; : public water supply; shellfish harvesting without depuration; high quality habitat for fish, other aquatic life and wildlife; habitat for high quality habitat for fish, other aquatic life and wildlife; habitat for endangered species; primary & secondary contact recreation; endangered species; primary & secondary contact recreation; Outstanding Natural Resource Water, Wild and Scenic River, or Outstanding Natural Resource Water, Wild and Scenic River, or otherwise a sensitive water.otherwise a sensitive water.

MediumMedium: suitable as public water supply with appropriate treatment; : suitable as public water supply with appropriate treatment; shellfish harvesting with depuration; less than high-quality habitat for shellfish harvesting with depuration; less than high-quality habitat for fish, etc.; only secondary contact recreation; suitable for irrigation fish, etc.; only secondary contact recreation; suitable for irrigation and other agricultural uses, and for compatible industrial cooling and other agricultural uses, and for compatible industrial cooling processes uses.processes uses.

LowLow: Doesn’t meet criteria for High or Medium (e.g., heavily : Doesn’t meet criteria for High or Medium (e.g., heavily industrialized shipping channel.)industrialized shipping channel.)

Potential or Actual Impact on Potential or Actual Impact on Human HealthHuman Health

Things to consider:Things to consider: Rainfall Data (how often, how much);Rainfall Data (how often, how much); Interference with drinking water supplies;Interference with drinking water supplies; Harm or risk to fishing or shellfish harvesting (e.g., fish Harm or risk to fishing or shellfish harvesting (e.g., fish

advisories);advisories); Causing or contributing to stream instability (flooding);Causing or contributing to stream instability (flooding); Interference with primary or secondary contact Interference with primary or secondary contact

recreation (e.g., beach closings);recreation (e.g., beach closings); Site conditions including condition of BMPs , soils and Site conditions including condition of BMPs , soils and

site topography.site topography.

Potential or Actual Impact on Potential or Actual Impact on the Environmentthe Environment

Things to consider: Things to consider: Rainfall data (how often, how much); Rainfall data (how often, how much); Pollutants discharged (e,g, sediment, cement washout, paint, Pollutants discharged (e,g, sediment, cement washout, paint,

oil) and their impact on aquatic life;oil) and their impact on aquatic life; Documented or reasonably presumed impacts to aquatic life or Documented or reasonably presumed impacts to aquatic life or

aquatic vegetation;aquatic vegetation; Whether stream provides habitat for sensitive species;Whether stream provides habitat for sensitive species; Whether discharges contributed to or caused streambed Whether discharges contributed to or caused streambed

instability; instability; Exceedances of WQ standards; andExceedances of WQ standards; and Site conditions (BMPs, soils, topography).Site conditions (BMPs, soils, topography).

D FactorD Factor

Determine a D Factor value using the D Determine a D Factor value using the D Factor table in the Guidance for each Factor table in the Guidance for each month that one or more violations month that one or more violations occurred.occurred.

D Factor table addresses: Permit D Factor table addresses: Permit Violations (category 1 in the table), and Violations (category 1 in the table), and Failure to Obtain a Permit (category 2). Failure to Obtain a Permit (category 2).

D Factor MatrixD Factor Matrix

Types of ViolationsTypes of Violations Disturbed AcresDisturbed Acres

1-251-25 25-5025-50 51-7551-75 76-15076-150 >150>1501. Permit Violations1. Permit Violations

a. No SWPPPa. No SWPPP 0.1-30.1-3 0.25-40.25-4 0.25-50.25-5 0.5-70.5-7 0.5-150.5-15

b. SWPPP In- b. SWPPP In- adequate adequate

0.1-20.1-2 0.1-30.1-3 0.1-40.1-4 0.25-50.25-5 0.5-140.5-14

c. BMPs In- c. BMPs In- adequateadequate

i. Missing BMPsi. Missing BMPs 0.1-40.1-4 0.1-70.1-7 0.5-100.5-10 0.5-150.5-15 0.5-200.5-20 ii. BMPs not ii. BMPs not properly designed, properly designed, implemented or implemented or maintainedmaintained

0.1-30.1-3 0.1-50.1-5 0.5-70.5-7 0.5-100.5-10 0.5-150.5-15

iii. Other iii. Other deficienciesdeficiencies

0.1-20.1-2 0.1-40.1-4 0.1-50.1-5 0.5-70.5-7 0.5-150.5-15

d. NOT not filedd. NOT not filed 0.1-20.1-2 0.1-20.1-2 0.1-20.1-2 0.5-20.5-2 0.5-20.5-22. No Permit2. No Permit 0.1-100.1-10 0.5-170.5-17 0.5-220.5-22 1-311-31 1-521-52

D FactorD Factor

For each month with permit violations, the D For each month with permit violations, the D Factor =Factor =

(1.a) + (1.b) + (1.c.i) + (1.c.ii) + (1.c.iii) + (1.a) + (1.b) + (1.c.i) + (1.c.ii) + (1.c.iii) + (1.d)(1.d)

For each month without a permit, a D factor For each month without a permit, a D factor value is selected from the appropriate value is selected from the appropriate range in category 2.range in category 2.

No SWPPPNo SWPPP

Treat as an continuous violation -- every Treat as an continuous violation -- every month from construction start until SWPPP month from construction start until SWPPP adequately completed is a month of adequately completed is a month of violation.violation.

Things to consider in selecting a value: Things to consider in selecting a value: What was the overall impact of not having a What was the overall impact of not having a

SWPPP on site conditions and control of SWPPP on site conditions and control of discharges?discharges?• Minimal, moderate or significant? Minimal, moderate or significant? • Number of disturbed acres.Number of disturbed acres.

Inadequate SWPPPInadequate SWPPP

For the purpose of calculating a penalty, For the purpose of calculating a penalty, may treat as one month of violation or a may treat as one month of violation or a continuous violation depending on the continuous violation depending on the specific deficiency and its impact on specific deficiency and its impact on controlling the discharge of pollutants.controlling the discharge of pollutants.

Things to consider in selecting a value: Things to consider in selecting a value: Overall impact of deficiencies on site Overall impact of deficiencies on site

conditions, or control of discharges;conditions, or control of discharges; Number of disturbed acres. Number of disturbed acres.

What’s an Appropriate Value for What’s an Appropriate Value for D?D?

Potential range of values for “No SWPPP” for a Potential range of values for “No SWPPP” for a site between 26 - 50 disturbed acres is 0.25 – 4. site between 26 - 50 disturbed acres is 0.25 – 4.

At a 40 acre site:At a 40 acre site: There is a locally-required E&S plan;There is a locally-required E&S plan; Non-storm water discharges and good Non-storm water discharges and good

housekeeping are not addressed in the E&S housekeeping are not addressed in the E&S plan;plan;

Inspector found issues with concrete washout Inspector found issues with concrete washout and trash.and trash.

Inadequate BMPs or Inadequate BMPs or Implementation of SWPPPImplementation of SWPPP

Includes 3 sub-categories which are Includes 3 sub-categories which are evaluated and counted separately:evaluated and counted separately: Missing BMPs (including failure to Missing BMPs (including failure to

stabilize);stabilize); BMPs not properly designed, installed, BMPs not properly designed, installed,

implemented or maintained (e.g., implemented or maintained (e.g., sediment basin too small, silt fences not sediment basin too small, silt fences not trenched in or fallen down);trenched in or fallen down);

Any other deficiencies (e.g., failure to Any other deficiencies (e.g., failure to conduct and/or document inspections).conduct and/or document inspections).

Inadequate BMPsInadequate BMPs

Things to consider in selecting a value for Things to consider in selecting a value for each applicable sub-category:each applicable sub-category:

Number, type and importance of deficient Number, type and importance of deficient BMPs ;BMPs ;

Number or percentage of missed inspections Number or percentage of missed inspections or other deficiency;or other deficiency;

Topography (slope, soils) and number of Topography (slope, soils) and number of acres disturbed.acres disturbed.

What’s an Appropriate Value?What’s an Appropriate Value?• At the 40 acre site:At the 40 acre site:

• The permit and E&S plan require 2 sediment The permit and E&S plan require 2 sediment basins, but not constructed; basins, but not constructed;

• About half of the silt fences were either not About half of the silt fences were either not trenched in or had fallen down;trenched in or had fallen down;

• Straw bales were sitting on top of the storm Straw bales were sitting on top of the storm drain curb inlets; drain curb inlets;

• Concrete washout was found in unprotected Concrete washout was found in unprotected areas;areas;

• Trash was scattered throughout site; andTrash was scattered throughout site; and• Inspections were not documented.Inspections were not documented.

D Factor TableD Factor Table

• Range of values for 26 – 50 acre Range of values for 26 – 50 acre site are:site are:• 0.1 – 7 for missing BMPs0.1 – 7 for missing BMPs

• 0.1 – 5 for inadequate BMPs0.1 – 5 for inadequate BMPs

• 0.1 – 4 for other deficiencies0.1 – 4 for other deficiencies

Failure to File a NOTFailure to File a NOT

Applies to month NOT should have been Applies to month NOT should have been filed in situations where site stabilized but filed in situations where site stabilized but NOT never submitted.NOT never submitted.

If construction is complete but the site not If construction is complete but the site not stabilized, then continue to apply the D stabilized, then continue to apply the D factors for inadequate BMPs.factors for inadequate BMPs.

No Permit and Unauthorized No Permit and Unauthorized DischargesDischarges

This category covers two types of This category covers two types of violations: violations: Failure to apply for a permit; andFailure to apply for a permit; and Discharge without a Permit.Discharge without a Permit.

Failure to Apply for a permit applies to Failure to Apply for a permit applies to every month from date NOI should have every month from date NOI should have been submitted to date NOI submitted.been submitted to date NOI submitted.

Discharge without a Permit applies to Discharge without a Permit applies to every month that a discharge occurred.every month that a discharge occurred.

No Permit and Unauthorized No Permit and Unauthorized DischargesDischarges

Therefore, the D factor will generally be Therefore, the D factor will generally be higher for those months with evidence of a higher for those months with evidence of a discharge (including evidence based on discharge (including evidence based on rainfall data and topography).rainfall data and topography).

No Permit and Unauthorized No Permit and Unauthorized DischargesDischarges

Things to consider include:Things to consider include: Size and sophistication of owner/operator; Size and sophistication of owner/operator; Overall site conditions;Overall site conditions; History of noncompliance;History of noncompliance; Any other pertinent factors.Any other pertinent factors.

Can use the “permit violation” categories Can use the “permit violation” categories as a TOOL to help determine an as a TOOL to help determine an appropriate D factor.appropriate D factor.

Gravity Adjustment FactorsGravity Adjustment Factors Civil Monetary Penalty Inflation AdjustmentCivil Monetary Penalty Inflation Adjustment

Tables account for recent penalty inflation Tables account for recent penalty inflation adjustments. adjustments.

Penalty must be adjusted for future penalty Penalty must be adjusted for future penalty inflation adjustments.inflation adjustments.

Flow Reduction Factor for Small Facilities is Flow Reduction Factor for Small Facilities is NOT applicable to construction storm water NOT applicable to construction storm water cases.cases.

Other Gravity Adjustment Factors (Recalcitrance Other Gravity Adjustment Factors (Recalcitrance and Quick Settlement Adjustment) apply as in and Quick Settlement Adjustment) apply as in 1995 Interim Penalty Policy.1995 Interim Penalty Policy.

Other Adjustment FactorsOther Adjustment Factors

Litigation ConsiderationsLitigation Considerations

Ability to PayAbility to Pay