Penalty Policy Discussion for Violations of the Construction Storm Water Requirements

1. Penalty Policy Discussion for Violations of the Construction Storm Water Requirements

2. Construction SW Formula • The overall Penalty Formula is: Bottom Line Penalty = (Economic Benefit) + (Gravity) +/- (Gravity Adjustment Factors) - (Litigation Considerations) - (Ability to Pay) – (Supplemental Environmental Projects)

3. Economic Benefit • The economic benefit of noncompliance is derived from several categories of violation of the construction storm water requirements: BENTotal = BENPermit + BENSWPPP + BENBMPs + BENInspect + BENMaintenance

4. Economic Benefit • For each type of violation, the guidance addresses how specific avoided or delayed costs should be input into the BEN model including: • whether costs are capital costs, annual costs or one-time costs; • whether costs are avoided or delayed.

5. Avoided or Delayed • Input costs as avoided costs if money never spent: • Permit never obtained • SWPPP never completed or updated • BMPs never installed or implemented • BMPs never fixed or maintained • Input costs as delayed if money spent late: • Permit obtained after construction commenced • BMPs installed or implemented after construction commenced • SWPPP completed after construction began • BMPs fixed or maintained late.

6. Types of Costs • Capital Costs (per BEN model): • Depreciable capital expenditures for things that wear out such as buildings, equipment or other long-lived assets. • This cost category is generally not applicable to structural controls installed at construction sites because such controls are generally short-lived or wear out quickly and are therefore not depreciable.

7. Types of Costs • One-time nondepreciable costs (per BEN model): • Delayed or avoided expenditures the violator should have made earlier (to prevent the violations) that need to be made only once, do not involve the purchase of equipment, and are non-depreciable (i.e., do not wear out). • For construction sites, applies to purchase and installation of BMPs that have a short life span, and are used and paid for within a short period of time (e.g., a year).

8. One-time Nondepreciable Costs • Can include: • Cost of structural controls such as silt fences, storm drain inlet protection, sediment basins; • Cost of certain nonstructural BMPs such as seeding and mulching for stabilization; • Cost of obtaining a permit (permit fee, preparation of NOI);

9. One-time Nondepreciable Costs • Can included (continued): • Cost of developing SWPPP; • Cost of updating SWPPP when required; • In some cases, delayed or avoided maintenance; • In some cases, missed inspections.

10. Types of Costs • Annually Recurring Costs (per BEN model): • Costs associated with operating and maintaining the required pollution control equipment or structural controls that the violator avoided during the period of violations.

11. Annually Recurring Costs • Avoided annually recurring costs include: • Avoided nonstructural BMPs that should have been conducted on a regular basis, such as general good housekeeping and street sweeping; • Avoided maintenance costs such as regularly removing sediment from silt fences and inlet protection, regularly repairing silt fencing; • Missed inspections. • Input TOTAL ANNUAL cost.

12. GRAVITY The Gravity component formula is: Monthly Gravity = (B + D) x $1000 Where B=Health and Environmental Harm and D=Significance of Non-Effluent Limit Violations (absent are significance and number of effluent violations).

13. B Factor • Determine an appropriate value for the B factor using the B Factor table in the Guidance for each month that one or more violations present actual or potential harm. • B Factor table is based on: whether human health and/or environment is impacted; whether impacts are actual or potential; and classification of the receiving water as Low, Medium or High quality.

14. B Factor Matrix

15. Receiving Water Classification • High: public water supply; shellfish harvesting without depuration; high quality habitat for fish, other aquatic life and wildlife; habitat for endangered species; primary & secondary contact recreation; Outstanding Natural Resource Water, Wild and Scenic River, or otherwise a sensitive water. • Medium: suitable as public water supply with appropriate treatment; shellfish harvesting with depuration; less than high-quality habitat for fish, etc.; only secondary contact recreation; suitable for irrigation and other agricultural uses, and for compatible industrial cooling processes uses. • Low: Doesn’t meet criteria for High or Medium (e.g., heavily industrialized shipping channel.)

16. Potential or Actual Impact on Human Health • Things to consider: • Rainfall Data (how often, how much); • Interference with drinking water supplies; • Harm or risk to fishing or shellfish harvesting (e.g., fish advisories); • Causing or contributing to stream instability (flooding); • Interference with primary or secondary contact recreation (e.g., beach closings); • Site conditions including condition of BMPs , soils and site topography.

17. Potential or Actual Impact on the Environment • Things to consider: • Rainfall data (how often, how much); • Pollutants discharged (e,g, sediment, cement washout, paint, oil) and their impact on aquatic life; • Documented or reasonably presumed impacts to aquatic life or aquatic vegetation; • Whether stream provides habitat for sensitive species; • Whether discharges contributed to or caused streambed instability; • Exceedances of WQ standards; and • Site conditions (BMPs, soils, topography).

18. D Factor • Determine a D Factor value using the D Factor table in the Guidance for each month that one or more violations occurred. • D Factor table addresses: Permit Violations (category 1 in the table), and Failure to Obtain a Permit (category 2).

20. D Factor For each month with permit violations, the D Factor = (1.a) + (1.b) + (1.c.i) + (1.c.ii) + (1.c.iii) + (1.d) For each month without a permit, a D factor value is selected from the appropriate range in category 2.

21. No SWPPP • Treat as an continuous violation -- every month from construction start until SWPPP adequately completed is a month of violation. • Things to consider in selecting a value: • What was the overall impact of not having a SWPPP on site conditions and control of discharges? • Minimal, moderate or significant? • Number of disturbed acres.

22. Inadequate SWPPP • For the purpose of calculating a penalty, may treat as one month of violation or a continuous violation depending on the specific deficiency and its impact on controlling the discharge of pollutants. • Things to consider in selecting a value: • Overall impact of deficiencies on site conditions, or control of discharges; • Number of disturbed acres.

23. What’s an Appropriate Value for D? • Potential range of values for “No SWPPP” for a site between 26 - 50 disturbed acres is 0.25 – 4. • At a 40 acre site: • There is a locally-required E&S plan; • Non-storm water discharges and good housekeeping are not addressed in the E&S plan; • Inspector found issues with concrete washout and trash.

24. Inadequate BMPs or Implementation of SWPPP • Includes 3 sub-categories which are evaluated and counted separately: • Missing BMPs (including failure to stabilize); • BMPs not properly designed, installed, implemented or maintained (e.g., sediment basin too small, silt fences not trenched in or fallen down); • Any other deficiencies (e.g., failure to conduct and/or document inspections).

25. Inadequate BMPs • Things to consider in selecting a value for each applicable sub-category: • Number, type and importance of deficient BMPs ; • Number or percentage of missed inspections or other deficiency; • Topography (slope, soils) and number of acres disturbed.

26. What’s an Appropriate Value? • At the 40 acre site: • The permit and E&S plan require 2 sediment basins, but not constructed; • About half of the silt fences were either not trenched in or had fallen down; • Straw bales were sitting on top of the storm drain curb inlets; • Concrete washout was found in unprotected areas; • Trash was scattered throughout site; and • Inspections were not documented.

27. D Factor Table • Range of values for 26 – 50 acre site are: • 0.1 – 7 for missing BMPs • 0.1 – 5 for inadequate BMPs • 0.1 – 4 for other deficiencies

28. Failure to File a NOT • Applies to month NOT should have been filed in situations where site stabilized but NOT never submitted. • If construction is complete but the site not stabilized, then continue to apply the D factors for inadequate BMPs.

29. No Permit and Unauthorized Discharges • This category covers two types of violations: • Failure to apply for a permit; and • Discharge without a Permit. • Failure to Apply for a permit applies to every month from date NOI should have been submitted to date NOI submitted. • Discharge without a Permit applies to every month that a discharge occurred.

30. No Permit and Unauthorized Discharges • Therefore, the D factor will generally be higher for those months with evidence of a discharge (including evidence based on rainfall data and topography).

31. No Permit and Unauthorized Discharges • Things to consider include: • Size and sophistication of owner/operator; • Overall site conditions; • History of noncompliance; • Any other pertinent factors. • Can use the “permit violation” categories as a TOOL to help determine an appropriate D factor.

32. Gravity Adjustment Factors • Civil Monetary Penalty Inflation Adjustment • Tables account for recent penalty inflation adjustments. • Penalty must be adjusted for future penalty inflation adjustments. • Flow Reduction Factor for Small Facilities is NOT applicable to construction storm water cases. • Other Gravity Adjustment Factors (Recalcitrance and Quick Settlement Adjustment) apply as in 1995 Interim Penalty Policy.

33. Other Adjustment Factors • Litigation Considerations • Ability to Pay