water quality topics enforcement – are fines becoming a way of life at the deq by:donald d. maisch...

WATER QUALITY TOPICSWATER QUALITY TOPICSENFORCEMENT – ARE FINES ENFORCEMENT – ARE FINES

BECOMING A WAY OF LIFE AT BECOMING A WAY OF LIFE AT THE DEQTHE DEQ

By:By: Donald D. MaischDonald D. Maisch

Supervising Attorney, Water Quality DivisionSupervising Attorney, Water Quality Division

Office of the General CounselOffice of the General Counsel

Oklahoma Department of Environmental QualityOklahoma Department of Environmental Quality

707 N. Robinson707 N. Robinson

P.O. Box 1677P.O. Box 1677

Oklahoma City, OK 73101-1677Oklahoma City, OK 73101-1677

(405) 702-7189(405) 702-7189

Fax: (405) 702-7199Fax: (405) 702-7199

[email protected]@deq.ok.gov

WATER QUALITY TOPICSWATER QUALITY TOPICSENFORCEMENT – ARE FINES ENFORCEMENT – ARE FINES

BECOMING A WAY OF LIFE AT BECOMING A WAY OF LIFE AT THE DEQTHE DEQ

ANSWERANSWER

For certain water quality violations – the answer is “YES”

For some water quality violations – the answer is “IT DEPENDS”

ENFORCEMENT – ARE FINES ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE BECOMING A WAY OF LIFE

AT THE DEQAT THE DEQ

VIOLATIONSVIOLATIONS

When looking at fines to be issued by the Water Quality Division (WQD) of the DEQ,

whether a fine is to be issued will depend on the violation.

ENFORCEMENT – ARE FINES ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT BECOMING A WAY OF LIFE AT

THE DEQTHE DEQ

VIOLATIONSVIOLATIONS

Two Types – Federally Based OPDES/NPDES

Non-discharging state wastewater issues


THE DEQTHE DEQ

OPDES/NPDESOPDES/NPDES

The amount of penalty will depend on the type of violation involved:




Not all violations will always result in a penalty. Examples:

One time violations, where the environmental harm is minimal and response and clean up is expedited

Violations that do not arise to “significant noncompliance” as defined by EPA or the state

Discharge Monitoring Report paperwork violations that are not repetitive




Some violations will result in a penalty. Examples:

Any discharge to “waters of the state” whether permitted or unpermitted that results in death or harm to aquatic life will result in the maximum

penalty allowed to be assessed by law Violations that do arise to “significant

noncompliance” as defined by EPA or the state (two permit limit violations within a 6 month period)




More Penalty Examples:Any unpermitted discharge to “waters of the state”

or elsewhere (27A O.S. § 2-6-205 (A))Violations where the violator is not cooperative with

adequate response or adequate remediation Stormwater violations


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Whether a penalty will be assessed will be governed by:

the Memorandum of Agreement (MOA) between the DEQ and EPA, Region 6 for delegation of the

NPDES program


THE DEQTHE DEQOPDES/NPDESOPDES/NPDES

Part V (B) (6) of the MOA, entitled Part V (B) (6) of the MOA, entitled DEQ PENALTY POLICY DEQ PENALTY POLICY states:states: “The DEQ understands, supports and agrees to employ the “The DEQ understands, supports and agrees to employ the spirit of the EPA Clean Water Act Civil Penalty Policy as spirit of the EPA Clean Water Act Civil Penalty Policy as established in the Memorandum of the Assistant Administrator established in the Memorandum of the Assistant Administrator for Enforcement (February 11, 1986), and its current for Enforcement (February 11, 1986), and its current amendments. The DEQ adopted EPA’s civil penalty policy prior amendments. The DEQ adopted EPA’s civil penalty policy prior to program assumption. The amount of penalty sought by to program assumption. The amount of penalty sought by DEQ for permit or CWA violations will be consistent with the DEQ for permit or CWA violations will be consistent with the Clean Water Act Penalty Policy. The DEQ must calculate, Clean Water Act Penalty Policy. The DEQ must calculate, document and collect penalties that remove any economic document and collect penalties that remove any economic benefit derived by a facility for violations of the law, benefit derived by a facility for violations of the law, regulations or permit plus some appropriate amount for regulations or permit plus some appropriate amount for gravity and recalcitrance. “ gravity and recalcitrance. “


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OPDES/NPDESOPDES/NPDES EPA, Region 6, requires the DEQ to issue EPA, Region 6, requires the DEQ to issue

penalties for those violations that fall within penalties for those violations that fall within the federal program, using EPA’s Economic the federal program, using EPA’s Economic Benefit calculation program, plus to obtain Benefit calculation program, plus to obtain 10% of the gravity of the violation(s) using 10% of the gravity of the violation(s) using EPA’s Gravity calculation program.EPA’s Gravity calculation program.

ENFORCEMENT – ARE ENFORCEMENT – ARE FINES BECOMING A WAY FINES BECOMING A WAY

OF LIFE AT THE DEQOF LIFE AT THE DEQOPDES/NPDESOPDES/NPDES

The EPA requirements must be overlaid with state statutory requirements contained at 27A O.S. § 2-6-206 (E): “In determining the amount of any penalty In determining the amount of any penalty assessed under this subsection, the Executive assessed under this subsection, the Executive Director shall take into account the nature, Director shall take into account the nature, circumstances, extent and gravity of the violation, or circumstances, extent and gravity of the violation, or violations, and, with respect to the violator, ability to violations, and, with respect to the violator, ability to pay, any prior history of such violations, the degree pay, any prior history of such violations, the degree of culpability, economic benefit savings, if any, of culpability, economic benefit savings, if any, resulting from the violation, and such other matters resulting from the violation, and such other matters as justice may require.”as justice may require.”

ENFORCEMENT – ARE ENFORCEMENT – ARE FINES BECOMING A WAY FINES BECOMING A WAY

OF LIFE AT THE DEQOF LIFE AT THE DEQ


When comparing both the EPA and state When comparing both the EPA and state requirements, there are concepts that intersect, requirements, there are concepts that intersect, including that both systems take into account the including that both systems take into account the nature, circumstances, extent and gravity of the nature, circumstances, extent and gravity of the violation, or violations, the prior history of such violation, or violations, the prior history of such violations and the economic benefit savings, if violations and the economic benefit savings, if any, resulting from the violation.any, resulting from the violation.


THE DEQTHE DEQ


But please remember, if EPA believes that the DEQ But please remember, if EPA believes that the DEQ has failed to adequately undertake enforcement, has failed to adequately undertake enforcement, including the collection of appropriate penalties per including the collection of appropriate penalties per the MOA, “…EPA may proceed with any or all of the the MOA, “…EPA may proceed with any or all of the enforcement options available under Section 309 of enforcement options available under Section 309 of the CWA after notice to and consultation with the the CWA after notice to and consultation with the DEQ. Prior to proceeding with an enforcement action, DEQ. Prior to proceeding with an enforcement action, EPA shall give the DEQ 30 days to initiate such EPA shall give the DEQ 30 days to initiate such enforcement action.” see enforcement action.” see Part V (B) (2) of the MOA.


THE DEQTHE DEQ


Facilities have a choice:Facilities have a choice: work with the DEQ within the parameters of the work with the DEQ within the parameters of the

MOA and state law; orMOA and state law; orRisk EPA involvement in the enforcement matter.


THE DEQTHE DEQ


EPA Involvement in Enforcement Actions in EPA Involvement in Enforcement Actions in OklahomaOklahoma

The DEQ has been and is currently involved in The DEQ has been and is currently involved in enforcement actions, based on an EPA initiative, enforcement actions, based on an EPA initiative, where the following has been found to be true:where the following has been found to be true:

When EPA is involved, generally the assessed When EPA is involved, generally the assessed penalties will exceed the amount of penalty assessed penalties will exceed the amount of penalty assessed by the State of Oklahoma.by the State of Oklahoma.


THE DEQTHE DEQ



Example – EPA currently has an enforcement Example – EPA currently has an enforcement initiative concerning sanitary sewer overflows initiative concerning sanitary sewer overflows (SSOs). EPA, nationwide, has taken enforcement (SSOs). EPA, nationwide, has taken enforcement against certain municipalities for SSOs which have against certain municipalities for SSOs which have resulted in orders that required the municipality to resulted in orders that required the municipality to pay millions of dollars in penalties.pay millions of dollars in penalties.


THE DEQTHE DEQ



Example – When EPA came to Oklahoma to undertake Example – When EPA came to Oklahoma to undertake SSO enforcement, the DEQ requested and was allowed SSO enforcement, the DEQ requested and was allowed to take the lead on SSO violations to take the lead on SSO violations

The result was that the DEQ issued such orders to The result was that the DEQ issued such orders to municipalities for SSO violations that resulted in municipalities for SSO violations that resulted in penalties of $500,000.00 and less.penalties of $500,000.00 and less.


THE DEQTHE DEQ



EPA has other initiatives that could result in EPA has other initiatives that could result in enforcement actions in Oklahoma:enforcement actions in Oklahoma: Where DEQ would be involved and take the lead in Where DEQ would be involved and take the lead in

enforcement – Stormwater, especially construction of enforcement – Stormwater, especially construction of “Big Box” Stores“Big Box” Stores

Where DEQ not involved – CAFOs Where DEQ not involved – CAFOs


THE DEQTHE DEQ


When the WQD of the DEQ is in the lead on When the WQD of the DEQ is in the lead on enforcement for a federally recognized violation, the enforcement for a federally recognized violation, the WQD must work to satisfy both the state and federal WQD must work to satisfy both the state and federal requirements if a penalty must be assessed.requirements if a penalty must be assessed.


THE DEQTHE DEQ

STATE WASTEWATER ISSUESSTATE WASTEWATER ISSUES

Again the amount of penalty will depend on the type of violation involved:




Not all violations will always result in a penalty. Examples:

One time violations, where the environmental harm is minimal and response and clean up is expedited

Violations that do not arise to “significant noncompliance” as defined by the state

Maintenance and reporting violations that are not repetitive


AT THE DEQAT THE DEQSTATE WASTEWATER ISSUESSTATE WASTEWATER ISSUES

Some violations will result in a penalty. Examples:

Any discharge to “waters of the state” whether permitted or unpermitted that results in death or harm

to aquatic life will result in the maximum penalty allowed to be assessed by law

Any unpermitted discharge to “waters of the state” or elsewhere (27A O.S. § 2-6-205 (A))

Violations that do arise to “significant noncompliance” as defined the state




More Penalty Examples:Violations where the violator is not cooperative with

adequate response or adequate remediation Violations of land application requirements (whether

the land application of industrial wastewater or the land application of industrial sludge)


THE DEQTHE DEQSTATE WASTEWATER ISSUESSTATE WASTEWATER ISSUES

The amount of a non-discharging wastewater issue is The amount of a non-discharging wastewater issue is established pursuant to the requirements of 27A O.S. § 2-3-502 established pursuant to the requirements of 27A O.S. § 2-3-502 (K): (K):

““1. Unless specified otherwise in this Code, any penalty assessed 1. Unless specified otherwise in this Code, any penalty assessed or proposed in an order shall not exceed Ten Thousand Dollars or proposed in an order shall not exceed Ten Thousand Dollars ($10,000.00) per day of noncompliance.($10,000.00) per day of noncompliance.2. The determination of the amount of an administrative penalty 2. The determination of the amount of an administrative penalty shall include, but not be limited to, the consideration of such shall include, but not be limited to, the consideration of such factors as the nature, circumstances and gravity of the violation or factors as the nature, circumstances and gravity of the violation or violations, the economic benefit, if any, resulting to the respondent violations, the economic benefit, if any, resulting to the respondent from the violation, the history of such violations and respondent's from the violation, the history of such violations and respondent's degree of culpability and good faith compliance efforts. “degree of culpability and good faith compliance efforts. “


THE DEQTHE DEQ


Since there is no EPA oversight, the DEQ can be Since there is no EPA oversight, the DEQ can be more flexible with the establishment and final more flexible with the establishment and final settlement of any penalty amountsettlement of any penalty amount


THE DEQTHE DEQ

STIPULATED PENALTIESSTIPULATED PENALTIES

All Consent Orders, whether it contains an All Consent Orders, whether it contains an administrative penalty, will contain “Stipulated administrative penalty, will contain “Stipulated Penalties”Penalties”


THE DEQTHE DEQ


““Stipulated Penalties” are those “penalties” that can Stipulated Penalties” are those “penalties” that can be assessed if the Respondent to the Order fails to be assessed if the Respondent to the Order fails to comply with the terms and conditions of the Order.comply with the terms and conditions of the Order.

The “stipulated penalties” will be specifically set out The “stipulated penalties” will be specifically set out in the Orderin the Order


THE DEQTHE DEQ


““Stipulated Penalties” will be assessed if a Stipulated Penalties” will be assessed if a Respondent falls more than thirty (30) days behind Respondent falls more than thirty (30) days behind on a term or a condition of the Orderon a term or a condition of the Order


THE DEQTHE DEQ


The amount of a possible “stipulated penalty” was The amount of a possible “stipulated penalty” was set by the DEQ when the DEQ came into existence in set by the DEQ when the DEQ came into existence in the early 1990s and are updated every other year. the early 1990s and are updated every other year. The amount of a possible “stipulated penalty” is The amount of a possible “stipulated penalty” is increased by the rate of inflationincreased by the rate of inflation


THE DEQTHE DEQ


Since EPA has no oversight over “stipulated Since EPA has no oversight over “stipulated penalties” the DEQ has discretion concerning the penalties” the DEQ has discretion concerning the settlement of stipulated penalties settlement of stipulated penalties



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water quality topics enforcement – are fines becoming a way of life at the deq by:donald d. maisch...

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