WATER QUALITY TOPICS ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ

1. WATER QUALITY TOPICSENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ By: Donald D. Maisch Supervising Attorney, Water Quality Division Office of the General Counsel Oklahoma Department of Environmental Quality 707 N. Robinson P.O. Box 1677 Oklahoma City, OK 73101-1677 (405) 702-7189 Fax: (405) 702-7199 don.maisch@deq.ok.gov

2. WATER QUALITY TOPICSENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ ANSWER For certain water quality violations – the answer is “YES” For some water quality violations – the answer is “IT DEPENDS”

3. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ VIOLATIONS • 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.

4. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ VIOLATIONS Two Types – • Federally Based OPDES/NPDES • Non-discharging state wastewater issues

5. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ OPDES/NPDES • The amount of penalty will depend on the type of violation involved:

6. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ OPDES/NPDES • 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

7. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ OPDES/NPDES • 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)

8. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ OPDES/NPDES • 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

9. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ OPDES/NPDES • 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

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

11. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ OPDES/NPDES • EPA, Region 6, requires the DEQ to issue penalties for those violations that fall within the federal program, using EPA’s Economic Benefit calculation program, plus to obtain 10% of the gravity of the violation(s) using EPA’s Gravity calculation program.

12. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ OPDES/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 assessed under this subsection, the Executive Director shall take into account the nature, circumstances, extent and gravity of the violation, or violations, and, with respect to the violator, ability to pay, any prior history of such violations, the degree of culpability, economic benefit savings, if any, resulting from the violation, and such other matters as justice may require.”

13. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ OPDES/NPDES • When comparing both the EPA and state requirements, there are concepts that intersect, including that both systems take into account the nature, circumstances, extent and gravity of the violation, or violations, the prior history of such violations and the economic benefit savings, if any, resulting from the violation.

14. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ OPDES/NPDES • But please remember, if EPA believes that the DEQ has failed to adequately undertake enforcement, including the collection of appropriate penalties per the MOA, “…EPA may proceed with any or all of the enforcement options available under Section 309 of the CWA after notice to and consultation with the DEQ. Prior to proceeding with an enforcement action, EPA shall give the DEQ 30 days to initiate such enforcement action.” see Part V (B) (2) of the MOA.

15. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ OPDES/NPDES • Facilities have a choice: • work with the DEQ within the parameters of the MOA and state law; or • Risk EPA involvement in the enforcement matter.

16. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ OPDES/NPDES EPA Involvement in Enforcement Actions in Oklahoma • The DEQ has been and is currently involved in enforcement actions, based on an EPA initiative, where the following has been found to be true: • When EPA is involved, generally the assessed penalties will exceed the amount of penalty assessed by the State of Oklahoma.

17. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ OPDES/NPDES EPA Involvement in Enforcement Actions in Oklahoma • Example – EPA currently has an enforcement initiative concerning sanitary sewer overflows (SSOs). EPA, nationwide, has taken enforcement against certain municipalities for SSOs which have resulted in orders that required the municipality to pay millions of dollars in penalties.

18. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ OPDES/NPDES EPA Involvement in Enforcement Actions in Oklahoma • Example – When EPA came to Oklahoma to undertake SSO enforcement, the DEQ requested and was allowed to take the lead on SSO violations • The result was that the DEQ issued such orders to municipalities for SSO violations that resulted in penalties of $500,000.00 and less.

19. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ OPDES/NPDES EPA Involvement in Enforcement Actions in Oklahoma • EPA has other initiatives that could result in enforcement actions in Oklahoma: • Where DEQ would be involved and take the lead in enforcement – Stormwater, especially construction of “Big Box” Stores • Where DEQ not involved – CAFOs

20. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ OPDES/NPDES • When the WQD of the DEQ is in the lead on enforcement for a federally recognized violation, the WQD must work to satisfy both the state and federal requirements if a penalty must be assessed.

21. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ STATE WASTEWATER ISSUES • Again the amount of penalty will depend on the type of violation involved:

22. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ STATE WASTEWATER ISSUES • 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

23. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ STATE 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

24. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ STATE WASTEWATER ISSUES • 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)

25. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ STATE WASTEWATER ISSUES • The amount of a non-discharging wastewater issue is established pursuant to the requirements of 27A O.S. § 2-3-502 (K): • “1. Unless specified otherwise in this Code, any penalty assessed or proposed in an order shall not exceed Ten Thousand Dollars ($10,000.00) per day of noncompliance.2. The determination of the amount of an administrative penalty shall include, but not be limited to, the consideration of such factors as the nature, circumstances and gravity of the violation or violations, the economic benefit, if any, resulting to the respondent from the violation, the history of such violations and respondent's degree of culpability and good faith compliance efforts. “

26. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ STATE WASTEWATER ISSUES • Since there is no EPA oversight, the DEQ can be more flexible with the establishment and final settlement of any penalty amount

27. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ STIPULATED PENALTIES • All Consent Orders, whether it contains an administrative penalty, will contain “Stipulated Penalties”

28. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ STIPULATED PENALTIES • “Stipulated Penalties” are those “penalties” that can be assessed if the Respondent to the Order fails to comply with the terms and conditions of the Order. • The “stipulated penalties” will be specifically set out in the Order

29. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ STIPULATED PENALTIES • “Stipulated Penalties” will be assessed if a Respondent falls more than thirty (30) days behind on a term or a condition of the Order

30. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ STIPULATED PENALTIES • The amount of a possible “stipulated penalty” was set by the DEQ when the DEQ came into existence in the early 1990s and are updated every other year. The amount of a possible “stipulated penalty” is increased by the rate of inflation

31. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ STIPULATED PENALTIES • Since EPA has no oversight over “stipulated penalties” the DEQ has discretion concerning the settlement of stipulated penalties

32. ENFORCEMENT – ARE FINES BECOMING A WAY OF LIFE AT THE DEQ QUESTIONS