Water: State, Tribal & Territorial Standards
Repository of Documents - California: WATER QUALITY ENFORCEMENT POLICY (Resolution No. 96-030, as amended by Resolution No. 97-085)
- California Water Code (WC) Section 13001 provides that it is the intent of the Legislature that the State Water Resources Control Board (State Water Board) and each Regional Water Quality Control Board (Regional Water Board) shall be the principal state agencies with primary responsibility for the coordination and control of water quality. The State and Regional Water Boards shall conform to and implement the policies of the Porter-Cologne Water Quality Control Act (Division 7, commencing with WC Section 13000) and shall coordinate their respective activities so as to achieve a unified and effective water quality control program in the State;
- WC Section 13140 provides that the State Water Board shall formulate and adopt State Policy for Water Quality Control;
- WC Section 13142(c) provides that State Policy for Water Quality Control shall consist of principles and guidelines deemed essential by the State Water Board for water quality control;
- WC Section 13240 provides that Water Quality Control Plans (Basin Plans) shall conform to any State Policy for Water Quality Control;
- The State Water Board assembled a panel, called the External Program Review Committee (Committee), composed of representatives from the regulated community, environmental groups, and other interested parties with a stake in the work of the State and Regional Water Boards to make recommendations on the conduct of the State Water Board's water quality programs.
- One of the Committee's recommendations was that the State Water Board adopt a statewide enforcement policy that would ensure that enforcement actions throughout the State are consistent, predictable, and fair.
- The State and Regional Water Boards have broad authority to take a variety of enforcement actions under the Porter-Cologne Water Quality Control Act; the Toxic Pits Cleanup Act of 1984; Chapters 6.67, 6.7,and 6.75 of Division 20 of the Health and Safety Code (HSC); Section 25356.1 of HSC; and Chapter 6 of Division 3 of the Harbors and Navigation Code.
- It is appropriate to adopt a statewide water quality enforcement policy and guidelines implementing the policy to ensure statewide consistency in enforcement.
- Adoption of this policy is categorically exempt from the California Environmental Quality Act under 14 CCR, Section 15321.
- This policy should be periodically reviewed and revised, as appropriate.
- Chapter 5.8 (commencing with Section 13399) of Division 7 of the Water Code establishes a program for minor violations and requires the State Water Board to determine the types of violations that are minor violations.
THEREFORE BE IT RESOLVED:
- Enforcement actions throughout the State shall be consistent, predictable, and fair.
- It is the intent of the State Water Board that the enforcement actions of the Regional Water Boards be consistent with this policy and the attached implementing guidelines.
- Violations of waste discharge requirements (WDRs) or applicable statutory or regulatory requirements should result in a prompt enforcement response against the discharger. At a minimum, the Regional Water Board staff shall bring the following to the attention of their Regional Water Board for possible enforcement action:
- For major NPDES permittees, as defined in 40 CFR Section 122.2 (July 1, 1994):
- Exceedence of Category 1 pollutants by 1.4 times the monthly average effluent limit for any two months in a six month period. Category 1 pollutants are defined as Group 1 pollutants listed in 40 CFR Section 123.45, Appendix A (July 1, 1994) [Appendix A];
- Exceedence of Category 2 pollutants by 1.2 times the monthly average effluent limit for any two months in a six month period. Category 2 pollutants are defined as Group 2 pollutants listed in Appendix A;
- Chronic violations where there is an exceedence of the monthly average effluent limit for any pollutant in any four months in a six month period, or exceedences of the monthly average effluent limit for any pollutant in the same season for two years in a row;
- Any incidence of acute toxicity which violates WDRs, Basin Plans, or other provisions of law;
- Violation of narrative toxicity standards contained in WDRs or Basin Plans due to chronic toxicity;
- Violations of prohibitions contained in WDRs, Basin Plans, or enforcement orders;
- Failure to submit reports required in WDRs, orders, or Basin Plans within 30 days from the due date, or submission of reports which are so deficient or incomplete as to cause misunderstanding and thus impede the review of the status of compliance, except when it is recognized in program workplans that some categories of self-monitoring reports will not be reviewed;
- Violations of compliance schedule milestones for starting construction, completing construction, or attaining final compliance by 90 days or more from the date of the milestone specified in an enforcement order or WDRs;
- Failure of a publicly-owned treatment works, as defined in 40 CFR Section 122.2 (July 1, 1994), to implement its approved pretreatment program, as defined in 40 CFR Section 403.3 (July 1, 1994), as required in its WDRs, including failure to enforce industrial pretreatment requirements on industrial users;
- Failure to submit a Notice of Intent for coverage under the Storm Water Industrial General Permit, develop a Storm Water Pollution Prevention Plan (SWPPP), implement a SWPPP, conduct monitoring, or submit annual reports after specific notification to the discharger.
- For major NPDES permittees, as defined in 40 CFR Section 122.2 (July 1, 1994):
- Enforcement actions should be initiated as soon as possible after discovery of the violation. If the violation continues, the Regional Water Board staff shall consider escalating their response from less formal enforcement actions, such as notice of violation letters, to increasingly more formal and severe enforcement actions, and if necessary, shall bring this to the attention of their Regional Water Board for possible escalation of enforcement action.
- The State and Regional Water Board staff shall cooperate with other environmental regulatory agencies, where appropriate, to ensure that enforcement actions are coordinated. The aggregate enforcement authority of the Boards and Departments of the California Environmental Protection Agency (Cal/EPA) should be coordinated to eliminate inconsistent, overlapping, and redundant efforts. The following steps should be taken by Regional Water Board staff to assist in integrated enforcement efforts:
- Participate in multiagency and enforcement coordination;
- Share enforcement information;
- Participate in cross-training efforts;
- Participate with other agencies in enforcement efforts focused on specific individuals or categories of discharges.
- For spills of hazardous materials:
- The Regional Water Board staff shall coordinate enforcement actions with the Department of Toxic Substances Control and/or any local or county hazardous material program;
- The Regional Water Board staff shall consider referring spills in all but the smallest amounts to the appropriate District Attorney. If the District Attorney chooses not to pursue the case, the Regional Water Board staff shall consider issuing an administrative civil liability (ACL) Complaint.
- Large spills of hazardous materials should be considered for referral to the Attorney General. If necessary, the Regional Water Board staff should coordinate with the District Attorney or U.S. Attorney to determine whether criminal prosecution is warranted.
- In setting ACL amounts:
- Similar violations should result in similar amounts;
- ACL amounts should create a strong disincentive for future violations;
- Dischargers should not gain an economic benefit from the violations;
- The State Water Board supports the use of supplemental environmental projects which are funded or implemented by dischargers in exchange for a suspension of a portion of an ACL or other monetary assessment which would otherwise be paid directly to the State Cleanup and Abatement Account.
- It is desirable to encourage self-auditing, self-policing, and voluntary disclosure of environmental violations by dischargers. Such self-auditing and voluntary disclosure of violations shall be considered by the State and Regional Water Boards when determining enforcement actions and in appropriate cases may lead to a determination to forego or lessen the severity of an enforcement action.
Falsification or misrepresentation of such voluntary disclosures shall be brought to the attention of the appropriate Regional Water Board for possible enforcement action.
- This policy shall be reviewed and revised, as appropriate, not later than every five (5) years.
- The violations listed below are considered to be minor in nature provided the violations do not include the following:
- Any knowing, willful, or intentional violation of Division 7 (commencing with Section 13000) of the Water Code.
- Any violation of Division 7 of the Water Code that enables the violator to benefit economically from noncompliance, either by realizing reduced costs or by gaining a competitive advantage.
- Any violation that is a chronic violation or that is committed by a recalcitrant violator.
- Any violation that cannot be corrected within 30 days.
- Inadvertent omissions or deficiencies in recordkeeping that do not prevent an overall compliance determination.
- Records not physically available at the time of the inspection provided the records do exist and can be produced in a timely manner.
- Failure to have permits available during an inspection.
- Inadvertent violations of insignificant administrative provisions that do not involve a discharge of waste or a threat thereof.
- Violations that result in an insignificant discharge of waste or a threat thereof; provided, however, there is no significant threat to human health, safety, welfare or the environment and provided further that such violations do not violate any other order or prohibition issued by the State or Regional Boards. Significant threat means the threat of or an actual change in water quality that could result in a violation of water quality objectives or a condition of pollution or nuisance.