HomeMy WebLinkAboutAgenda Report - September 3, 2008 K-02AGENDA ITEM �40*()Nwh
CITY OF LODI
COUNCIL COMMUNICATION
TM
AGENDA TITLE: Adopt Resolution Authorizing Administrative Settlement with California
Regional Water Quality Control Board for Alleged Discharge Violations and
Appropriating Funds ($21,000)
MEETING DATE: September3,2008
PREPARED BY: Public Works Director
RECOMMENDED ACTION: Adopt a resolution authorizing the City Manager to execute a
"Waiver of 90 -Day Hearing Requirementfor Administrative Civil
Liability Complaint" for the purpose of remitting payment for the
alleged civil liability of $21,000 to the California Regional Water
Quality Control Board (Board)for discharge violations occurring between January 1, 2000 and
December 31, 2007 and appropriating $21,000 from the Wastewater Fund.
BACKGROUND INFORMATION: On May 19,2008, the City of Lodi received a draft Administrative
Civil Liability Complaint (ACLC) from the Board outlining alleged
Mandatory Minimum Penalty (MMP) for 53 non -serious discharge
violations which occurred over the eight-year period between
January 1, 2000 and December 31, 2007. The purported violations are associated with operational
upsets, sampling errors, coliform limitation exceedences. and other minor issues. A copy of the ACLC is
provided in ExhibitA.
The California Water Code Section 13385 allows the Board to impose administrative civil liabilities (fines)
for each discharge violation that qualifies for a MMP. The current MMP for both serious and non -serious
violations is $3,000 per occurrence.
The City's wastewater consultants (WestYost & Associates), along with legal counsel (Somach,
Simmons and Dunn), assisted staff in preparing a June 16, 2008 response to the Board (Exhibit B) that
outlined the City's position and contended only two of the 53 violations ($6,000) qualified as MMPs.
Upon review of the City's June 16,2008 response, the Board agreed to reduce the MMPs from $159,000
to $21,000 for seven non -serious discharge violations, all related to coliform and pH, and issued the
attached ACLC No. R5-2008-0562.
Staff believes we have reached a point of diminishing returns in negotiating the fine. The costs of
engaging Board staff to further argue our position will outweigh the benefit, and it is possible the effort
could compromise the City's current relationship with the Board.
Therefore, staff recommends the City pay the reduced fine of $21,000 and waive the Board hearing
requirement in accordance with the terms of Item No. 4 of the "Waiver of 90 -Day Hearing Requirement
for Administrative Civil Liability Complaint".
APPROVED:
KMP\WhiteS1ough\CMMP $21000doc
Blairo"ity Manager
8/2712008
Adopt Resolution Authorizing City Manager to Execute "Waiver of 90 -Day Hearing Requirementfor
Administrative Civil Liability Complaint" for Purpose of Remitting Paymentfor Civil Liability of $21,000 to
California Regional Water Quality Control Board for Discharge Violations Occurring between
January 1,2000 and December 31,2007 and Appropriating Funds ($21,000)
September 3,2008
Page 2
FISCAL IMPACT: $21,000. This cost was not budgeted.
FUNDING AVAILABLE: Requested Appropriation: $21,000 —Wastewater Fund (170403).
, Budget Manager
,,, �h I /? a jnAX&Y_,t,
F. Wally Sar&7elin
PublicWorks Director
Prepared by Charles Swimley. Water Services Manager
FWS�CES/dq
Attachments
cc: City Attorney
Water Services Manager
Wastewater Treatment Superintendent
K:\WP\W hite S1ougMCMMP_$21 OOO.doc 812712008
*104 California Regional Water Quality Control Board ExhibitA
Central Valley Region
Karl E. Longley, Scl), P.E., Chair
Linda S. Adams 11020 Sun Ce Arnold
PTOer Drive #200, Rancho Cordova, California 956706114
Secretaivfor ne (916) 464-3291 . FAX (916) 464-4645 Schwarzenegger
Environniental http Hwww waterboards cagov/oentralvallq Governot
Protection
14 August 2008
F. Wally Sandelin
PublicWorks Director
City of Lodi
P.O. Box 3006
Lodi, CA 95241-1910
REF WEED
E 1, - --
AUG, M2008
6'.D2 I (,A'9 Y OF LOLA CERTIFIED MAIL
"Y 11
PUBUC WORKS Dr -P/' RTMENT
70081140000288054172
ADMINISTRA TIVE CIVIL LIABILITY COMPLAINT NO. R5-2008-0562 FOR ASSESSMENT
OF MANDATORY MINIMUM PENALTIES, CITY OFLODI WHITESLOUGH WATER
POLLUTION CONTROL FACILITY, SAN JOAQUIN COUNTY
Enclosed is an Administrative Civil Liability Complaint (Complaint), issued pursuant to
California Water Code section 13385, for violations of Waste Discharge Requirements
(WDRs) Order Nos. 5-00-013 and R5-2007-0113 (NPDES No. CA0079243) by the City of Lodi
White Slough Water Pollution Control Facility (Discharger). The Complaint charges the City of
Lodi with civil liability in the amount of twenty one thousand dollars ($21,000), which
represents the sum of accrued Mandatory Minimum Penalties for effluent limitation violations
which occurred from 1 January 2000 through 31 December 2007.
On 15 May 2008, Regional Water Board staff issued a draft Record of Violations (ROV). On
16 June 2008, the Discharger responded and stated that a number of the violations should be
exempted from MMPs. Regional Water Board staff has prepared a technical memorandum
analyzing the City's response and has adjusted the number of violations. This technical
memorandum and ROV are found as attachments to the Complaint.
Pursuant to CWC section 13323, the Discharger may:
Pay the assessed civil liability and waive its right to a hearing before the Regional Water
Board by signing the enclosed waiver (checking off the box next to item #4) and submitting
it to this office by 16 September 2008, along with payment for the full amount;
Agree to enter into settlement discussions with the Regional Water Board and request that
any hearing on the matter be delayed by signing the enclosed waiver (checking off the box
next to item #5) and submitting it to this office by 15 September 2008; or
Contest the Complaint and/or enter into settlement discussions with the Regional Water
Board without signing the enclosed waiver.
If the Discharger chooses to sign the waiver and pay the assessed civil liability, this will be
considered a tentative settlement of the violations in the Complaint. This settlement will be
considered final pending a 30 -day period, starting from the date of this Complaint, during
California Environmental Protection Agency
01 Recycled Paper
F. Wally Sandelin -2- 14 August 2008
which time interested parties may comment on this action by submitting information to this
office, attention Barry Hilton. Should the Regional Water Board receive new information or
comments during this comment period, the Regional Water Board's Assistant Executive
Qfficer may withdraw the complaint, return payment, and issue a new complaint.
If the Regional Water Board does not receive a signed waiver within 30 days of the date of this
Complaint (by 15 September 2008), then a hearing will be scheduled for the
23/24 October 2008 Regional Water Board meeting in Rancho Cordova. Specific notice
about this hearing and its procedures will be provided under separate cover.
Any comments or evidence concerning the enclosed Complaint must be submitted to this
office, attention Barry Hilton, no later than 5 p.m. on 15 September 2008. This includes
material submitted by the discharger to be considered at a hearing and material submitted by
interested parties, including members of the public, who wish to comment on the proposed
settlement. If the Regional Water Board does not hold a hearing on the matter, and the terms
of the final settlement are not significantly different from those proposed in the enclosed
Complaint, then there will not be additional opportunities for public comment on the proposed
settlement. Written materials received after 5 p.m. on 15 September 2008 will not be
accepted and will not be incorporated into the administrative record if doing so would prejudice
any party.
If you have any questions or comments regarding the Administrative Civil Liability Complaint,
please contact Barry Hilton at (916) 464-4762 or Patricia Leary at (916) 464-4623.
WENDY VVYELS
Environmental Program Manager
Compliance and Enforcement Section
Enclosure: ACLC No. R5-2008-05XX
cc wl encl: Ms. Pamela Creedon, Central Valley Water Board, Rancho Cordova
Mr. Kenneth Greenberg, USEPA, Region 9, San Francisco
Mr. Reed Sato, Office of Enforcement, SWRCB, Sacramento
Mr. Patrick Pulupa, Office of Chief Counsel, SWRCB, Sacramento
Ms. Lori Okun, Office of Chief Counsel, SWRCB, Sacramento
Ms. Emel Wadhwani, Office of Chief Counsel, SWRCB, Sacramento
Ms. Carol Oz, Department of Fish and Game, Region 2, Rancho Cordova
San Joaquin County Environmental Health Department, Stockton
Mr. Bill Jennings, California Sportfishing Protection Alliance, Stockton
CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD
CENTRAL VALLEY REGION
ADMINISTRATIVE CIVIL LIABILITY COMPLAINT NO. R5-2008-0562
MANDATORY PENALTY
IN THE MATTER OF
CITY OF LODI
WHITE SLOUGH WATER POLLUTION CONTROL FACILITY
SAN JOAQUIN COUNTY
This Complaint is issued to the City of Lodi, White Slough Water Pollution Control Facility,
(hereafter Discharger) pursuant to California Water Code (CWC) section 13385, which
authorizes the imposition of Administrative Civil Liability, CWC section 13323, which
authorizes the Executive Officer to issue this Complaint, and CWC section 7, which authorizes
the delegation of the Executive Officer's authority to a deputy, in this case the Assistant
Executive Officer. This Complaint is based on findings that the Discharger violated provisions
of Waste Discharge Requirements (WDRs) Order -No. 5-00-03-1 and R5m2007-�0_1 13 (NRDES
No. CA0079243).
The Assistant Executive Officer of the Central Valley Regional Water Quality Control Board
(Regional Water Board) finds the following:
1 The Discharger owns and operates a wastewater collection, treatment, and disposal
system, and provides sewerage service for the City of Lodi. Treated wastewater is
discharged to Dredger Cut, tributary to White Slough, tributary to Bishop Cut, tributary to
the Sacramento -San Joaquin Delta, a water of the United States.
2. On 28 January 2000, the Regional Water Board adopted WDRs Order No. 5-00-031 to
regulate discharges of waste from the water pollution control facility (WPCF).
3. On 10 September 2004, the Regional Water Board adopted Resolution No.
R5-2004-0125, which extended certain compliance deadlines contained in WDRs Order
No. 5-00-031 from 1 May 2004 to 21 January 2005.
4. On 14 September 2007, the Regional Water Board adopted WDRs Order No.
R5-2007-0113, effective 3 November 2007, which contained new requirements and
rescinded WDRs Order No. 5-00-031.
5. On 14 September 2007, the Regional Water Board adopted Time Schedule Order (TSO)
No. R5-2007-0114, providing a time schedule and establishing interim effluent limits until
17 May 2010 for nitrate, nitrite, and manganese.
6. On 15 May 2008, the Regional Water Board sent the Discharger a draft Record of
Violations. On 16 June 2008, the Discharger responded. After consideration of
additional information submitted by the Discharger, Regional Water Board staff prepared
a technical memorandum, included as Attachment B to this Complaint, and discussed in
Finding No. 14 of this Complaint.
ADMINISTRATIVE CIVIL LIABILITY COMPLAINT NO. R5-2008-0562 -2-
MANDATORY PENALTY
CITY OF LODI
WHITE SLOUGH WATER POLLUTION CONTROL FACILITY
SAN JOAQUIN COUNTY
7. CWC sections 13385(h) and (i) require assessment of mandatory penalties and state, in
part, the following:
CWC section 13385(h)(I ) states, "Notwithstanding any otherprovision of this division,
and except as provided in subdivisions a), (k), and (/), a mandatory minimum penalty of
three thousand dollars ($3, 000) shall be assessed for each serious violation."
CWC section 13385 (h)(2) states, "For the purposes of this section, a 'serious violation'
means any waste discharge that violates the effluent limitations contained in the
applicable waste discharge requirements for a Group // pollutant, as specified in
Appendix A to Section 123.45 of Title 40 of the Code of Federal Regulations, by
20 percent or more or for a Group I pollutant, as specified in Appendix A to Section
123.45 of Title 40 of the Code of Federal Regulations, by 4 0 percent or more."
C-W,C- -section 13385_(i_)�1_) states_,_�Wotwithstanding any otherprovision of this division,
and except as provided in subdivisions 6), (k), and (/), a mandatory minimum penalty of
three thousand dollars ($3, 000) shall be assessed for each violation whenever the
person does any of the following four or more times in any period of six consecutive
months, except that the requirement to assess the mandatory minimum penalty shall
not be applicable to the first three violations:
A) Violates a waste discharge requirement effluent limitation.
B) Fails to file a reportpursuant to Section 13260.
C) Files an incomplete report pursuant to Section 13260.
D) Violates a toxicity effluent limitation contained in the applicable waste discharge
requirements where the waste discharge requirements do not contain pollutant -
specific effluent limitations for toxic pollutants. -
a. CWC section 13323 states, in part: 'Any executive officer of a regional board may issue a
complaint to any person on whom administrative civil liability may be imposed pursuant to
thisarticle. The complaint shall allege the actor failure to act that constitutes a violation
of law, the provision authorizing civil liability to be imposed pursuant to this article, and
the proposed civil liability."
9. WDRs Order No. 5-00-031 Effluent Limitations No. B. 1, states, in part: "The effluent shall
not exceed the following firnits:"
Constituents
Total Suspended Solids
Monthly Weekly Daily Daily
Units Averaq Averaq Averaq Maximu
mg/L 20 2 402
2 To be ascertained by a flow proportional 24-hour composite sample.
502
10. WDRs Order No. 5-00-031 Effluent Limitations No. B.2. states, in part: "Interim total
coliform organism and BOD wastewater effluent limits shall be in effect through
30 April 2004. The interim effluent limits are as follows:"
ADMINISTRATIVE CIVIL LIABILITY COMPLAINT NO. R5-2008-0562 -3-
MANDATORY PENALTY
CITY OF LODI
WHITE SLOUGH WATER POLLUTION CONTROL FACILITY
SAN JOAQUIN COUNTY
Monthly Weekly Daily
Constituents Units Averag Averag Maximum
Total Coliform MPN/1 OOrrL 23' 500
1 Monthly median value.
This deadline was extended by Resolution R5-2004-0125to 21 January 2005.
1. WDRs Order No. 5-00-031 Effluent Limitations No. B.3., states, in part: "The effluent
shall not exceed the following limits in accordance with the time schedule in Provision
H. 2:"
Daily Monthly Weekly Daily
Constituents Units Averacie Averacie Averag Maximum
-Total Coliform Organisms— MPN/100rrL 2.2 4 23
4 As a 7 -day median.
Provision H.2 was amended by Resolution No. R5-2004-0125 to extend the time
schedule for full compliance to 21 January 2005 from 30 April 2004.
12. WDRs Order No. 5-00-031 Effluent Limitations B.7., requires, in part, "The discharge
shall not have a pH less than 6.5 nor greater than 8.5. "
13. WDRs Order No. R5-2007-0113 Effluent Limitations No. IV.A. Le., Total Coliform
Organisms, states: "Effluent total coliform organisms shall not exceed:
i. 2.2 most probable number (MPN) per I OOmL, as a 7 -day median; and
ii. 23 MPNI100 mL, more than once in any 30 -day period."
14. As described in the technical memorandum mentioned in Finding No. 6, the Regional
Water Board makes the following adjustments to the draft Record of Violations (all
violation numbers reference those contained in the draft Notice of Violation).
Total Coliform Organisms Violations 2-4, 32-36, 38-39. The Discharger claimed
exemption from Mandatory Minimum Penalties because of a single operational upset.
These violations were retained because the violations did not meet the Water Quality
Enforcement Policy's standard for a single operational upset.
Total Coliform Organisms Violations 13-31. The Discharger documented that the
violations were due to an improper sampling location; therefore, they were deleted.
Total Coliform Org-an-isms--Violations 32, 34-36, 39, 4-1-16, 51-52, 54, 57-62T64-68,
and 70. The Discharger requested that coliform results be one median violation per
week. The effluent coliform limitation can be interpreted to be a static 7 -day median.
These violations were dismissed.
ADMINISTRATIVE CIVIL LIABILITY COMPLAINT NO. R5-2008-0562
MANDATORY PENALTY
CITY OF LODI
WHITE SLOUGH WATER POLLUTION CONTROL FACILITY
SAN JOAQUIN COUNTY
Total Coliform Organisms Violation 71. The Discharger documented that the
exceedance was due to a sampling error and further documented that it had
previously documented the sampling error. This violation was dismissed.
pH Violation 37. The Discharger claimed that this was not a violation because it only
lasted three hours. This violation was retained but did not result in assessment of an
MMP because it was only the second violation during the preceding 180 days.
No Surface Water Discharge Violations 46 and 54. The Discharger documented that
there was no discharge to surface waters. These violations were dismissed.
Liability Adjustments Violations 37, 48, 49, 53, and 56. Violations 37, 48, 49, 53, and
56, after deleting other violations, are the third or fewer violations during a preceding
180 day period and do not result in assessed MMPs.
15. According to the Discharger's self-monitoring reports, the Discharger committed twenty-
five (25) non -serious violations of the above effluent limitations contained in Order Nos.
5-00-031 and R5-2007-0113 during the period beginning 1 January 2000 and ending
31 December 2007. Seven (7) of the non -serious violations are subject to mandatory
penalties under CWC section 13385(i)(I ) because these violations were preceded by
three or more similar violations within a six-month period. The mandatory minimum
penalty for these non -serious violations is twenty-one thousand dollars ($21,000).
16. The total amount of the mandatory penalties assessed for the cited effluent violations is
twenty-one thousand dollars ($21,000). A detailed list of the cited effluent violations is
included in Attachment A, a part of this Complaint.
17. Issuance of this Administrative Civil Liability Complaint to enforce CWC Division 7,
Chapter 5.5 is exempt from the provisions of the California Environmental Quality Act
(Pub. Resources Code section 21000 et seq.), in accordance with California Code of
Regulations, title 14, section 15321(a)(2).
THE CITY OF LODI WHITE SLOUGH WATER POLLUTION CONTROL FACILITY IS
HEREBY GIVEN NOTICE THAT:
The Assistant Executive Officer of the Regional Water Board proposes that the
Discharger be assessed an Administrative Civil Liability in the amount of twenty-one
thousand dollars ($21,000).
2. A hearing on this matterwill be held at the Regional Water Board meeting scheduled on
23/24 October 2008, unless the Discharger does either of the following by
15 September 2008:
ADMINISTRATIVE CIVIL LIABILITY COMPLAINT NO. R5-2008-0562 -5-
MANDATORY PENALTY
CITY OF LODI
WHITE SLOUGH WATER POLLUTION CONTROL FACILITY
SAN JOAQUIN COUNTY
a) Waives the hearing by completing the attached form (checking off the box next to item
#4) and returning it to the Regional Water Board, along with payment for the proposed
civil liability of twenty-one thousand dollars ($21,000); or
b) Agrees to enter into settlement discussions with the Regional Water Board and
requests that any hearing on the matter be delayed by signing the enclosed waiver
(checking off the box next to item #5) and returning it to the Regional Water Board.
3. If a hearing on this matter is held, the Regional Water Board will consider whether to
affirm, reject, or modify the proposed Administrative Civil Liability, or whether to refer the
matter to the Attorney General for recovery of judicial civil liability.
JACK�t. DEL CONTE, Assistant Executive Officer
14Au-qust 2008
Attachment A: Record of Violations
Attachment B: Technical Memorandum
BLH: 08/14/08
WAIVER OF 90 -DAY HEARING REQUIREMENT FOR
ADMINISTRATIVE CIVIL LIABILITY COMPLAINT
By signing this waiver, I affirm and acknowledge the following:
1 . I am duly authorized to representthe City of Lodi, White Slough Water Pollution Control Facility (hereinafter
"Discharger") in connection with Administrative Civil Liability Complaint No. R5-2008-0562 (hereinafter the
"Complaint");
2. 1 am informed that California Water Code section 13323, subdivision (b), states that, "a hearing before the
regional board shall be conducted within 90 days after the party has been served" with the Complaint;
3. 1 hereby waive any right the Discharger may have to a hearing before the California Regional Water Quality
Control Board, Central Valley Region (Regional Water Board) within ninety (90) days of service of the
Complaint; and
4. o (Check here if the Discharger will waive the hearing requirement and willpay the fine)
a. I certify that the Dischargerwill remit payment for the civil liability imposed in the amount of twenty-
one thousand dollars ($21,000) by check, which contains a reference to "ACL Complaint No.
R5-2008-0562" and is made payable to the "State Water Pollution Cleanup andAbaternent Account.
Payment must be received by the Regional Water Board by 15 September 2008 or this matter will be
placed on the Regional Water Board's agenda for adoption as initially proposed in the Complaint.
b I understand the payment of the above amount constitutes a settlement of the Complaint, and that any
settlement will not become final until after the 30 -day public notice and comment period mandated by
Federal regulations (40 CFR 123.27) expires. Should the Regional Water Board receive new
information or comments during this comment period, the Regional Water Board's Assistant Executive
Officer may withdraw the complaint, return payment, and issue a new complaint. New information or
comments include those submitted by personnel of the Regional Water Board who are not associated
with the enforcement team's issuance of the Complaint.
c I understand that payment of the above amount is not a substitute for compliance with applicable laws
and that continuing violations of the type alleged in the Complaint may subject the Discharger to
further enforcement, including additional civil liability.
-Or-
5. o (Check here if the Discharger will waive the 90 -day hearing requirement, but will not pay at the
current time) I certify that the Discharger will promptly engage the Regional Water Board staff in discussions
to resolve the outstanding violation(s). By checking this box, the Discharger is not waiving its right to a hearing
on this matter I understand that this waiver is a request to delay the hearing so the Discharger and Regional
Water Board staff can discuss settlement. It does not constitute the Regional Water Board's agreement to
delay the hearing. A hearing on the matter may be held before the Regional Water Board if these discussions
do not resolve the liability proposed in the Complaint. The Discharger agrees that this hearing may be held
after the 90 -day period referenced in California Water Code section 13323 has elapsed.
6. If a hearing on this matter is held, the Regional Water Board will consider whether to issue, reject, or modify
the proposed Administrative Civil Liability Order, or whether to refer the matter to the Attorney General for
recovery ofjudicial civil liability.
(Print Name and Title)
(Signature)
(Date)
ATTACHMENT A
ADMINISTRATIVE CIVIL LIABILITY COMPLAINT NO. R6-2008-0562
City of Lodi
White Slough Water Pollution Control Facility
RECORD OF VIOLATIONS (11 January 2000— 31 December2007) MANDATORY PENALTIES
(Data reported under Monitoring and Reporting Program Nos. 5-00-031 and R5-2007-0113)
Remarks:
1. Serious Violation: For Group I pollutants that exceed the effluent limitation by 40 percent or more.
2. Serious Violation: For Group 11 pollutantsthat exceed the effluent limitation by 20 percentor more.
3. Non -serious violations falls within the first three violations in a six-month period, thus is exempt.
4. Non -serious violation subject to mandatory penalties.
VIOLATIONS AS OF: 12/31/2007
Group I Serious Violations:
0
Violation
0
Non -Serious Exempt from MPs:
18
Non -serious Violations Subjectto MPs:
7
Total Violations Sub*ect to MPs:
Date
Type
Units
Urnit
Measured
Period Tvpe
Remarks
1
24 -Feb -00
pH
pH units
6.5
6.4
Instantaneous
3
2
21 -Oct-00
Coliform
MPN/1 00ml
500
1600
Daily
3
3
28 -Oct -00
Coliform
MPN/1 00ml
500
1600
Daily
3
4
11 -Nov-00
Coliform
MPN/1 00ml
500
1600
Daily
3
5
28 -Jan -01
pH
pH units
6.5
6.3
Instantaneous
4
6
22 -Feb -01
Coliform
MPN/100ml
500
1600
Daily
4
7
26 -Feb -01
pH
pH units
6.5
6.4
Instantaneous
4
8
22 -Oct -01
TSS
mg/L
50
51
Daily
3
9
7 -Feb -02
Coliform
MPN/1 00ml
500
1600
Daily
3
10
13-NOV-02
TSS
mg/L
50
67
Daily
3
11
24 -Dec -02
Coliform
MPN/1 00ml
500
900
Daily
3
12
6 -Mar -03
Coliform
MPN/1 00ml
500
1600
Daily
3
13
8-NOV-05
Coliform
MPN/100ml
23
50
Daily
3
14
11 -Nov-05
pH
pH units
6.5
6.4
Instantaneous
3
15
12-NOV-05
Coliform
MPN/1 00ml
2.2
8
7 -day
3
16
29-NOV-05
Coliform
MPN/1 00ml
23
50
Daily
4
17
3 -Apr -06
Coliform
MPN/100ml
23
50
Daily
4
18
13 -Oct -06
Coliform
MPN/100ml
23
30
Daily
3
19
30 -Oct -06
Coliform
MPN/100mI
23
30
Daily
3
20
12 -Mar -07
Coliform
MPN/1 00ml
23
50
Daily
3
21
4 -Sep -07
Coliform
MPN/1 00ml
23
50
Daily
3
22
15 -Sep -07
Coliform
MPN/100ml
23
80
Daily
3
23
15 -Sep -07
Coliform
MPN/100ml
2.2
3
7 -day
4
24
22 -Sep -07
Coliform
MPN/100ml
2.2
7
7 -day
4
25
29 -Sep -07
Coliform
MPN/100ml
2.2
7
7 -day
4
Remarks:
1. Serious Violation: For Group I pollutants that exceed the effluent limitation by 40 percent or more.
2. Serious Violation: For Group 11 pollutantsthat exceed the effluent limitation by 20 percentor more.
3. Non -serious violations falls within the first three violations in a six-month period, thus is exempt.
4. Non -serious violation subject to mandatory penalties.
VIOLATIONS AS OF: 12/31/2007
Group I Serious Violations:
0
Group 11 Serious Violations:
0
Non -Serious Exempt from MPs:
18
Non -serious Violations Subjectto MPs:
7
Total Violations Sub*ect to MPs:
7
Mandatory Minimum Penalty = (0 Serious Violations + 7 Non -Serious Violations) x $3,000 = $21,000
California Regional Water Quality Control Board
Central Valley Region
Karl E. Longley, Scl), P.E., Chair
Linda S.Adarns
Secretaryfo r 11020 Sun Center Drive #200, Rancho Cordova, California 956706114
Environmental -3291 FAX (916) 464-4645
Protection Phone (916) 464
http://www.waterboards.ca.gov/centralval ley
TO: Patricia Leary, Senior Engineer FROM: Barry Hilton, WRCE
NPIDES Compliance and Ejiforcement NPDES Cqmpliance an� E
DATE: 14 August 2008
SIGNATURE:
0
Arnold
Schwarzenegger
Governor
SUBJECT: CITY OF LODI, WHITE SLOUGH WATER POLLUTION CONTJROL FACILITY
On 15 May 2008, the Regional Water Board sent the City of Lodi, White Slough VVV\ITP
(Discharger) a Notice of Violation and a draft Record of Violations for the period of 1 January 2000
through 31 December 2007. The Discharger responded by letter dated 16 June 2008.
Statute of Limitations
The Discharger requested that the Regional Water Board consider the 5 -year statute of limitations
under the Clean Water Act and the 3 -year statute of limitations contained in the California Code of
Civil Procedure, section 338. The former of these two statutes of limitation applies to actions by
the federal government, and the latter of these statutes of limitation does not apply to this type of
administrative proceeding.
The Code section of which §338 is a part makes it clear that §338 applies only to time limits on the
commencement of civil suits in the courts. §338 is a part of Chapter 1 of Title 2 of the Code of
Civil Procedure, entitled "Of the Time of Commencing Civil Actions." The first section in Chapter 1
of Title 2 reads, in pertinent part, as follows:
7§3 12. General Limitations; Special Cases: Civil actions, without exception, can only be
commenced within the periods prescribed in this title..."
It is clear from a mere reading of this language that Title 2 is intended to prescribe time periods for
the bringing of civil law suits. This administrative complaint falls outside the scope of this section.
(See also Bemd v. Eu (1979) 100 Cal.App.3d 511, 161 Cal-Rptr- 58; Rudolph v. Athletic
Commission (1960) 177 Cal.App.2d 1, 22, 1 Cal.Rptr. 898).
Total Coliform Organisms
Violations 2-4. The Discharger claimed a single operational upset (SOU). The Discharger stated
that readjustments in its nitrification process resulted in violations of the coliform limitation. CWC
13385(f) protects the discharger from MMPs if the operational upset results in violations of one or
more effluent limitations and also "But for the operational upset of the biological treatment process,
the violations would not have occurred nor would they have continued for more than one day...
[and]... the discharger carried out all reasonable and immediately feasible actions to reduce
noncompliance..." The violations were coliform violations (daily), there were no other violations,
the violations occurred on three different occasions over a period of three weeks. Inmy
professional opinion, this was a failure to disinfect adequately. I retained the violations. Thishad
no effect on the number of violations subject to MMPs because there were only 3 violations during
a 180 day period.
California Environmental Protection Agency ATTACHMENT B
Z,':
,lRecycled Paper
Patricia Leary -2- 14 August 2008
Violations 13-31. The Discharger documented that, during start-up of the new tertiary filtration and
UV disinfection facilities, the measured violations were the result of an improper sampling location
and that moving the sampling location closer to the discharge of the disinfection system resulted in
no violations. I deleted these violations because I concur with the Discharger's arguments that
these violations were exempt as a result of an improper sampling location.
Violations 32-36, 38-3 . The discharger requested consideration as an SOU because effluent
turbidities reduced the effectiveness of the UV disinfection system. These do not qualify as an
SOU because the Discharger did not violate the effluent turbidity limitations or any other limitations.
I consider this an operational error. I disagreed with the claim for an SOU.
Violations 32, 34-36, 39, 41-46, 51-52, 54, 57-62, 64-68, and 70. WDRs Order No. 5-00-131
states that the weekly average coliform is to be determined as a 7 -day median. The Discharger
requested that coliform results be one median violation per week. I agree that the 7 -day median
can be interpreted as a static weekly median, rather than a rolling 7 -day median. I reanalyzed the
analytical results using a static weekly period (Sunday through Saturday). I deleted violations 32,
34-36, 39, 41-46, 51-52, 54, 57-62, 64-68, and 70 because these were improperly calculated as
rolling 7 -day medians rather than weekly medians specified by the WDRs.
Violation 71. The Dischargerdocumented that the exceedance was due -to a sampling -error and
further documented that it had previously documented the sampling error. I deleted this violation.
M
Violation37. WDRs order 5-00-031 Effluent limitation B.7 states: "The discharger shall not have a
pH less than 6.5 nor than greater than 8.5." The Discharger stated that the pH was 6.44-6.45 for 3
hours. This was a violation because the discharge pH was less than 6.5. 1 changed the violation
from remarks 4 to remarks 3 because there were only two violations during the 180 day period. I
retained the violation but it will not result in an MMP.
No Surface Water Discharge
Violations 46, 54. The Discharger documented that there was no discharge to surface waters. I
deleted the violations.
Liability Adjustments
Violations 37, 48, 49, 53, and 56. After deleting other violations, violations 37, 48, 49, 53, and 56,
non -serious violations, are the third or fewer violation during a preceding 180 day period and
therefore do not result in assessed MMPs.
Summary
The total number of Group I violations is 0.
The total number of Group 2 violations is 0.
The total number of Group 3 violations is 25; 8 are subject to MMPs,
The ACL decreases from $159,000 to $21,000.
ATTACHMENT B
ATTACHMENT A
ADMINISTRATIVE CIVIL LIABILITY COMPLAINT R5-2008-0562
City of Lodi
White Slough Wastewater Treatment Plant
RECORD OF VIOLATIONS (11 January 2000 - 32 December2007) MANDATORY PENALTIES
(Data reported under Monitoring and Reporting Program Nos. 5-00-031 and R5-2007-01113
ATTACHMENT B
Violation
Date
jype
Units
Limit
Measured
Period Type
Remarks
1
1
24 -Feb -00
pH
pH units
6.5
6.4
Instantaneous
3
2
2
2 1 -Oct -00
Coliform
MPN/100ml
500
1600
Daily
3
3
3
28 -Oct -00
Coliform
MPN/100ml
500
1600
Daily
3
4
4
1 1 -Nov -00
Coliform
MPN/1 00rd
500
1600
Daily
3
5
5
28 -Jan -01
pH
pH units
6.5
6.3
Instantaneous
4
6
6
22 -Feb -01
Coliform
MPN/100ml
500
1600
Daily
4
7
7
26 -Feb -0 1
pH
pH units
6.5
6.4
Instantaneous
4
8
8
22 -Oct -01
TSS
mg/L
50
51
Daily
3
9
9
7 -Feb -02
Coliform
MPN/100ml
500
1600
Daily
3
10
10
13 -Nov -02
TSS
mg/L
50
67
Daily
3
11
11
24 -Dec -02
Coliform
MPN/1 00rd
500
900
Daily
3
12
12
6 -Mar -03
Coliform
MPN/1 00rd
500
1600
Daily
3
Q
04RINUIMm'
2-2
:7-�
a
A4I2lhI11QQmI
2=2
WX
7-�
3
46
cow"M
A.4121SWIM
2=2
7-
7--C�
3
46
2=2
8
7--�
4
4=7
2=2
7
7--d"
4
4=8
-P b I QQ WA
2=2
.7
17-�
4
49
-R IS 1.11 Q -0 WA
2=22
8
7-Q�
4
29
2=2
8
7-d"
4
-24
GOWOFM
MRINUIM"
2=2
8
7-�
4
22
2=2
8
7-�
4
243
MPN400"
2=2
8
7-�
4
24
A412b"4400
2-2
8
7-�
4
26
MPN400"
2-2
z
7-c�
4
2=6
MRNAU)GfW
2-2
.7
7=-�
4
2=7
19 Rob Qfi
MPN4�
242
7
7 -day
4
2=8
2-2
4
4
29
2-2
4
;7=-�
4
39
04121SU400ml
24
4
4
34
20 -Rab -06
GaWes4;p
MPN40OW
242
4
4
32
a bIGA, 06
MPNMQGW
2-42
a
3
33
13
8 -Nov -05
Coliform
MPN/1 00rd
23
50
Daily
3
,34
MPN4GGW
2=2-
8
7-�
3
36
40-Na"6
PAIRIS1110QW
242
8
7-d"
4
36
Q015fopm
MPN400fM
2-42
8
7 -day
4
37
14
1 I -Nov -05
pH
pH units
6.5
6.4
Instantaneous
.34
38
15
12 -Nov -05
Coliform
MPN/1 00rd
2.2
8
7 -day
34
39
2-2
4
7-�
4
40
16
29 -Nov -05
Coliform
MPN/1 00rd
23
50
Daily
4
44
calota;M
MPN40OW
2-42
4
7 -day
4
42
A4l2bI0QQMl
4
9-dw
4
43
MRNAQGW
24
4
7--�
4
44
MPNMQGW
242
4
W-�
4
46
MRNM=Q�
2-2
4
7 -day
4
ATTACHMENT B
Patricia Leary -2- 11 August 2008
Remarks:
1. Serious Violation: For Group I pollutants that exceed the effluent I imitation by 40 percent or more.
2. Serious Violation: For Group 11 pollutants that exceed the effluent limitation by 20 percentor more.
3. Non -serious violations falls within the first three violations in a six-month period, thus is exempt.
4. Non -serious violation subject to mandatory penalties.
VIOLATIONSAS OF: 12/31/2007
Group I Serious Violations: 0
Group 11 Serious Violations: 0
Non -Serious Exempt from MPs: 18
Non -serious Violations Subject to M Ps: Z63
Total Violations Sublect to MPs: Z63
Mandatory Minimum Penalty = (0 Serious Violations + 763 Non -Serious Violations) x $3,000 = $46921,000
ATTACHMENT B
Violation
Date
TVpe
Units
Lin*
Measured
Period Type
Remarks
46
23
30
Oe4y
4
47
17
3 -Apr -06
Coliform
MPN/100ml
23
50
Daily
4
48
18
13 -Oct -06
Coliform
MPN/100ml
23
30
Daily
34
49
19
30 -Oct -06
Coliform
MPN/100ml
23
30
Daily
34
50
20
12 -Mar -07
Coliform
MPN/1 00ml
23
50
Daily
3
64
2=2
4
:7--�
4
62
URN9ZOP41
24
4
7__�
4
53
21
4 -Sep -07
Coliform
MPN/100ml
23
50
Daily
34
64
2=2
3
741�
3
55
22
15 -Sep -07
Coliform
MPN/100ml
23
80
Daily
3
56
23
15 -Sep -07
Coliform
MPN/1 00ml
2.2
3
7 -day
4
67
24
6
7_�
4
68
C994GFM
2-2
6
7_�
4
2=2
7_�
4
60
44-9"-07
2=2
4"
7__�
4
64
GGW49fM
2=2
4"
W_�
4
62
QQUfGFM
2=2
9
7-d"
4
63
24
22 -Sep -07
Coliform
MPN/100ml
2.2
7
7 -day
4
64
2=2
4
;L�
4
66
2=2
4
7 -day
4
66
2=2
4
;-day
4
67
24
4
7_�
4
68
2�4
4
7-d"
4
69
25
29 -Sep -07
Coliform
MPN/1 00ml
22
7
7 -day
4
7=0
CkAacwm
W.
W -day
4
74
Q04fi;fm
240
4600
4
Remarks:
1. Serious Violation: For Group I pollutants that exceed the effluent I imitation by 40 percent or more.
2. Serious Violation: For Group 11 pollutants that exceed the effluent limitation by 20 percentor more.
3. Non -serious violations falls within the first three violations in a six-month period, thus is exempt.
4. Non -serious violation subject to mandatory penalties.
VIOLATIONSAS OF: 12/31/2007
Group I Serious Violations: 0
Group 11 Serious Violations: 0
Non -Serious Exempt from MPs: 18
Non -serious Violations Subject to M Ps: Z63
Total Violations Sublect to MPs: Z63
Mandatory Minimum Penalty = (0 Serious Violations + 763 Non -Serious Violations) x $3,000 = $46921,000
ATTACHMENT B
CITY COUNCIL
JOANNE MOUNCE,
Mayor
LARRY D. HANSEN,
Mayor Pro Ternpore
SUSAN HITCHCOCK
BOBJOHNSON
PHIL KATZAKIAN
CITY OF LODI
MUNICIPAL SERVICE CENTER
1331 SOUTH HAM LANE
P.O. BOX 3006
LODI, CALIFORNIA 95241-1910
(209) 333-6740
FAX (209)333-6841
EMAIL ywdeDt9DIodi.c3ov
http:\\www.lodi.gov
June 16,2008
Ms. Patricia Leary
Senior Engineer, NPDES Compliance and Enforcement Unit
California Regional Water Quality Control Board
Central Valley Region
11020 Sun Center Drive #200
Rancho Cordova CA 95670-6114
I Exhibit B I
BLAIR KING,
City Manager
RANDI JOHL,
City Clerk
D. STEPHEN SCHWABAUER,
City Attorney
F. WALLY SANDELIN
Public Works Director
SUBJECT: Administrative Civil Liability Complaint- Mandatory Minimum Penalties
City of Lodi White Slough Water Pollution Control Facility
Order Number R5-2007-0113and R5-00-031
Dear Ms. Leary:
The purpose of this letter is to present the City of Lodi's (City's) review of the draft
Record of Violations (draft record) issued by the Central Valley Regional Water Quality
Control Board (Regional Board) on May 19, 2008. The draft record outlines the alleged
violations of effluent limitationsthat have occurred since February 24, 2000' at the City's
White Slough Water Pollution Control Facility (WPCF), and that are subject to mandatory
minimum penalties (MMPs).
The WPCF discharge is currently permitted under Waste Discharge Requirements
(WDRs) Order No. R5-2007-0113, which was adopted by the Regional Board on
September 14,2007. Prior to this, the WPCF was regulated under WDR Order No.
R5-00-031. The majority of violations outlined in the Regional Board's May 19 letter
occurred while the WPCF was regulated under the previous WDRs.
This letter specifically addresses a number of coliform violations that the City contends
were either a result of process upsets or were falsely reported values resulting from
' The City believes imposition of penalties for violations occurring more than three years ago is
barred by the statute of limitations under the Porter -Cologne Water Quality Act (Code of Civ.
Proc. §338(i)). At a minimum, a five year statute of limitations applies under federal law, as
Chapter 5.5 of the Water Code to be construed "to ensure consistency" with the requirements for
state programs implementingthe Clean Water Act (CWC § 13 3 72(a)), and the statute of
limitations for penalties assessed pursuant to the Clean Water Act is five years. (28 U. S.C. $2462;
se e al so Public In terest Research Gro up ofNew Jersey, In c. v. Powell Duffiyn Term in als, 913 F.
2d 64, 75 (3rd Cir. 1990)). If the Regional Board intends to assess penalties outside the allowable
time periods, the City requests that the Regional Board explain the legal basis for this action.
Ms. PatriciaLeary
June 16,2008
Page 2 of 8
sampling error. In addition, the City contends that the 7 -day median coliform limitation as
prescribed in the previous permit is a fixed weekly limit, not a running median as has
been suggested by the Regional Board. Finally, a discussion of the City's concerns
regarding a pH violation (violation 37) and a violation that occurred when the City was not
discharging to surface water (violation 46) are also discussed in this letter.
ODerational UK)set
Violations 2 through 4
The draft record lists violations of the daily maximum coliform limitation on
October 21,2000; October 28,2000; and November 11,2000; respectively. As
documented in the City's monthly self-monitoring reports for October and November
2000, these exceedances were a result of a failure in the WPCF's nitrification process.
The City has elaborated on this issue in its November 2,2000, and November 17,2000
submissions to the Regional Board, which are attached to this letter. As documented, the
WPCF experienced nitrification process upsets due to weather changes during this
period. This was initially managed by increasing the solids retention time (SRT) to
improve the process of converting ammonia to nitrate; however, a change in SRT
requires some time to impact the nitrification process. Following these efforts, it appeared
that the issue had been resolved; however, there was a coliform exceedance on
November 11, 2000, indicating persistent effects of the nitrification upsets. Therefore, the
City diverted its flows to the holding ponds to resume discharge on complete stabilization
of the nitrification process. For these reason, the City contends that violations 2, 3 and 4
fall under the CWC Section 13385(f) definition of violations caused by an "operational
upset". Moreover, these violations were unavoidable and occurred within a 30 -day period,
as specified by CWC Section 13385(f). Therefore, the City requests that the Regional
Board designate these simultaneous violations as a single violation for purposes of
assessing the applicable mandatory minimum penalties.
Violations 32 through 36, and 38 through 39
Exceedances of the daily maximum coliform limitation on November 8, 2005 (violation
33), and the 7 -day median coliform limitation between November 8 and November 13,
2005 (violations 32, 34 — 36, and 38 - 39) also should be considered as a single violation
resulting from an operational upset in accordance with CWC Section 13385(f). As
documented in the City's November 18,2005 submission to the Regional Board
(attached), the November 8 daily maximum violation was caused indirectlyfrom
increased turbidity in the UV disinfection system. Although the turbidity levels were below
the prescribed effluent limitation, the short-term turbidity increase interfered with the UV
disinfection resulting in the exceedances of the effluent coliform. Since this occurrence,
the City has taken the precaution of increasing the UV dose during periods of high
turbidity, and furthermore, the City has programmed the SCADA system to detect
fluctuations of effluent parameters in order to act to avoid further violations. Therefore,
the City requests that the Regional Board designate these simultaneous violations as a
single violation for purposes of assessing the applicable mandatory minimum penalties.
Violations 54 through 70
A number of violations of the 7 -day median coliform limitation occurred in
September 2007 (violations 54 through 70), including one exceedance of the daily
maximum coliform limitation. Initially, the City believed that the failure of a hydraulic pump
caused failure of the cleaning system for one of the UV channels, ultimately reducing
disinfection capability. This was documented in the City's September 24, 2007 letter to
ms. Patricia Leary
June 16,2008
Page 3 cf 8
the Regional Board, which is attached. A second letter sent to the Regional Board on
October 24, 2007 (also attached) further documented the issue, stating that the coliform
exceedances were more likely caused by the construction activities associated with the
City's Phase III Improvement Project. Specifically, the construction work required
bypassing around the headworks facility, causing an upset in the secondary processes,
which resulted in a temporary change in the flows and loading to the disinfection process.
The City had also sent a letter to the Regional Board on April 25, 2007 (also attached),
advising the Regional Board of the components of the City's Phase I I I Improvement
Project that may cause a plant upsets. This letter specifically included an operations plan
describing how the bypass pumping will be limited to the September 15 through
November 30 period to minimize the potential impacts. (Note that the contractor actually
began the bypass on September 12.) Therefore, the City contends that these violations
should be exempt from MMPs in accordance with CWC Section 133850).
Samplinq Error
Violations 13 through 31
Nineteen alleged violations of the 7 -day median effluent limitation occurred during
February 2005 (violations 13 through 31). These violations were encountered during the
startup of the City's new tertiary filtration and UV disinfection facilities. During this period,
the City was monitoring effluent coliform at a location downstream from the UV
disinfection facility that was later determined to not reflect actual treatment performance.
Once the monitoring location was moved to the immediate outlet from the UV facility, the
coliform measurements were within the allowable limits. Thus, the reported results were
not reflective of actual effluent quality and constitute over -reporting. Underthe Clean
Water Act's strict liability scheme, a permittee violates the Clean Water Act if it
discharges pollutants in violation of its permit, without regard to intent. Case law has
confirmed that "strict liability does not mean that a permittee may be held liable for
violating its permit even if it does not in fact do so." (United States v. Allegheny Ludlum
Cofp. (3d Cir. 2004) 366 F.3d 164, 175.) The Regional Board must have evidence that
the permit was in fact violated. Therefore, the City requeststhat violations 13through 31
be removed from the record.
Violation 71
The draft record lists a violation of the coliform limitation on December 20, 2007;
however, City's monthly self-monitoring report indicated that this exceedance was
recorded due to a sampling error. This was further documented in the City's
December 26, 2007 letter to the Regional Board, which is attached. Thus, the reported
results were not reflective of actual effluent quality and constitute over -reporting. As
stated above, the Regional Board must have evidence that the permit was in fact
violated. Therefore, the City requests that violation 71 be removed from the record.
7 -Day Median Limitationsfor Coliform
Violations 13 through 31, 32, 34 through 36, 38, 39, 41 through 45, 51, 52, 54
through 70
If these violations are not considered one violation due to upset conditions or removed
from the record altogetherfor the reasons outlined above, the City contends that the
number of violations should be reduced, as the previous WDRs do not specify that the
Ms. Patricia Leary
June 16,2008
Page 4 of 8
7 -day median" is to be calculated as a rolling median. 2 State Water Board guidance on
implementing the MMP law provides that:
In the usual case, if the discharger exceeds an average or median effluent
limitation based on a static period of time (e.g., monthly or weekly averages), it
would be considered only one violation for the month or the week for the
purposes of calculating mandatory penalties, as described above. Exceedances
of effluent limitations where it is specifled that the average ormedian will be
computed on a rolling basis (calculated daily), however, would be considered to
be violations for each new time period that the average or median was exceeded.
The permit, the applicable water quality control plan, and U.S. EPA guidance
should be reviewed to determine how to calculate the number of violations in
these cases. (SB 709 Questions and Answers, State Water Resources Control
Board, April 17, 2001, pp. 15-16. (emphasis added).)
Given that the priorWDRs, unlike other permits issued by the RegionalWater board,
does not specify that a rolling median is to be used, the violations should be calculated
using a fixed 7 -day median. Assuming the 7 -day median would coincide with a weekly
occurrence (Monday through Sunday), the number of violations listed above would be
reduced from 51 to 9.
Other Issues
Analytical Accuracy of pH Monitoring Equipment: Violation 37
The draft record lists a violation of the daily pH limitation on November 11 2005.
However, as documented in the attached November 18,2005 submission to the Regional
Board, the pH was measured at 6.44 - 6.45 for only about three hours on November 11,
2005 and pH was within allowable limits prior to and after this time period, demonstrating
compliance during the greater part of the same day. Moreover, the level of accuracy of
the City's pH metering equipment is such that the 6.44 value is not sufficiently precise to
conclude that the effluent did not meet the 6.5 minimum pH limitations in the WDRs.
Therefore, the City requeststhat the Regional Board eliminate this alleged violation from
the record of violations subject to MMPs.
No Surface Water Discharge: Violation 46
The draft record lists a violation of the coliform limitation on December 23, 2005;
however, as documented in the City's monthly self-monitoring report for December 2005,
the City was not discharging to surface water on this date. Therefore, this coliform
measurement does not violate the City's WDR limitations. The City requests that the
Regional Board eliminate this alleged violation from the record of violations subject to
MMPs.
A summary of the City's responses is provided in the attached table. Assuming the
Regional Board accepts all of the City's comments and reduces the violations
accordingly, the number of punishable violations would be reduced from 71 to 18
(reducing the exempted violations from 18 to 16 and the penalized violations from 53
to 2). Therefore, this action would be a significant reduction of the City's Administrative
2 This is in contrast to other permits that specify coliform is to be reported as a roffing median. (See, e.g.,
the City's currentpermit Order No. R5-2007-0113, effective November 5,2007.)
Ms. Patricia Leary
June 16,2008
Page 5 of 8
Civil Liability (from $159,000 to $6,000).
The City would like to note that we are in the process of making a number of
improvements to the WPCF processes in an effort to meet future surface water
discharge limits and to help meet long-term land management needs, in addition to the
2005 installation of tertiary filtration and UV disinfection facilities. The successful
completion of these improvements requires the completion of various studies, a great
deal of effort, and expenditure of significant resources. Therefore, the City requests that
the Regional Board consider these efforts, and the City's need to direct significant
monetary resources to complete them, when evaluating the violations applied to the
WPCF.
We appreciate the Regional Board's consideration of this matter. Following your review
of this letter, we would like to schedule a meeting with the appropriate Regional Board
staff to further discuss the suitable resolution of this issue.
Sincerely,
Charles E. Swimley, Jr., P.E.
Water Services Manager
CES/myn
Enclosures
cc: Blair King, City Manager
D. Stephen Schwabauer, City Attorney
F. Wally Sandelin, PublicWorks Director
Del Kerlin, Wastewater Treatment Superintendent
Kathryn Gies, West Yost & Associates, 131A Stony Circle, Ste. 100
Ms. Patricia Leary
June 16,2008
Page 6 of 8
Summary of Tentative MMP Violations and City Responses
Serial
Number
Date
Violation Type
City's Position
Penalty
1
24 -Feb -00
pH
Accept
Exempt
2
2 1 -Oct -00
Daily Coliform
Count as one (1)
violation due to upset
conditions
Exempt
3
28 -Oct -00
Daily Coliform
4 1 1 -Nov -00
Daily Coliform
5
28 -Jan -01
pH
Accept
Exempt
6
22 -Feb -01
Daily Coliform
Accept
Exempt
7
26 -Feb -01
pH .1
Accept
Not Exempt
8
22 -Oct -01
TSS
Accept
Exempt
9
07 -Feb -02
Daily Coliform
Accept
Exempt
10
13 -Nov -02
TSS
Accept
Exempt
11
24 -Dec -02
Daily Coliform
Accept
Exempt
12
06 -Mar -03
Daily Coliform
Accept
Exempt
13
01 -Feb -05
7 -Day Colifor
14
02 -Feb -05
7 -Day Colifor
15
03 -Feb -05
7 -Day Coliform
16
04 -Feb -05
7 -Day Coliform
17
05 -Feb -05
7 -Day Coliform
18
06 -Feb -05
7 -Day Coliform
19
07 -Feb -05
7 -Day Coliform
20
08 -Feb -O5
I 7 -Day Coliform
Eliminate due to
sa, , pling error during
21
09 -Feb -05
7 -Day Coliform
—
start-up or count as
22
1 O -Feb -05
7 -Day Coliform
three (3) violations of
N/A
23
1 1 -Feb -05
7 -Day Colifor
the fixed 7 -day
median
24
12 -Feb -05
7 -Day Coliform
(Monday – Sunday)
25
13 -Feb -05
7 -Day Coliform
26
14 -Feb -05
7 -Day Coliform
27
15 -Feb -05
7 -Day Coliform
28
16 -Feb -05
7 -Day Coliform
29
17 -Feb -05
7 -Day Coliform
30
19 -Feb -05
7 -Day Coliform
31
20 -Feb -05
7 -Day Coliform
Ms. Patricia Leary
June 16,2008
Page 7 of 8
Summary of Tentative MMP Violations and City Responses, continued
Serial
Number
Date
�
Violation Type
City's Position
Penalty
7 -Day Coliform
Count as one (1) violation
due to process upset, or
count as tw (2) violations:
one k 1) violation of the daily
maximum and one (1)
violation of the fixed 7 -day
median
(Monday – Sunday)
Exempt
33
08 -Nov -05
Daily Coliform
34 09 -Nov -05
7 -Day Coliform
35
1 O -Nov -05
7 -Day Coliform
36
ll -Nov -05
—
7 -Day Coliform
38
12 -Nov -05
7 -Day Coliform
39
13 -Nov -05
7-Dav Coliform
37
1 ll -Nov -05
pH
Eliminate due to accuracy of
sampling equipment
Exempt
40
29 -Nov -05
Daily Coliform
Accept
Exempt
41
30 -Nov -05
7 -Day Coliform
Eliminate because not a
violation of the fixed 7 -day
median (Monday – Sunday)
N/A
42
01 -Dec -05
7 -Day Coliform
43
02 -Dec -05
7 -Day Coliform
44
04 -Dec -05
7 -Day Coliform
45
05 -Dec -05
7 -Day Coliform
46
23 -Dec -05
DailyColiform
Eliminate due to no surface
water discharge
N/A
47
03 -Apr -06
DailyColiform
Accept
Exempt
48 13 -Oct -06
DailyColiform
Accept
Exempt
49 30 -Oct -06
DailyColiform
Accept
Exempt
50 12 -Mar -07
DailyColiform
Accept
Exempt
51
17 -Mar -07
7 -Day Coliform
Count as one (1) violation of
the fixed 7 -day median
(Monday – Sunday)
Not
Exempt
52 18 -Mar -07
7 -Day Coliform
53
04 -Sep -07
Daily Coliform
Accept
Exempt
Ms. Patricia Leary
June 16,2008
Page 8 of 8
Summary cf Tentative MMP Violations and City Responses, continued
Serial
Number
Date
Violation Type
City's Position
Penalty
54
14 -Sep -07
7 -Day Coliform
Eliminate because violations
were caused in accordance
with an operations plan that
was submitted to the
Regional Board at least 30
days ahead of the
construction activity, or
count as three (3) violations,
one (1) violation of the daily
maximum and two (2)
violations of the fixed 7 -day
median
(Monday – Sunday)
N/A
55
15 -Sep -07
Daily Coliform
56
15 -Sep -07
7 -Day Coliform
57
16 -Sep -07
7 -Day Coliform_
58
17 -Sep -07
7 -Day Coliform
59
18 -Sep -07
7 -Day Coliform
60
19 -Sep -07
7 -Day Coliform
61
20 -Sep -07
7 -Day Coliform
62
21 -Sep-07
7 -Day Coliform
63
22 -Sep -07
7 -Day Coliform
64
24 -Sep -07
—
7 -Day Coliform
65
25 -Sep -07
7 -Day Coliform
66
26 -Sep -07
7 -Day Coliform
67
27 -Sep -07
7 -Day Coliform
68
28 -Sep -07
7 -Day Coliform
69
29 -Sep -07
7 -Day Coliform
70
30 -Sep -07
7 -Day Coliform
71
20 -Dec -07
Daily Coliform
Eliminate due to sampling
error
N/A
—1
RESOLUTION NO. 2008-182
A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING
THE CITY MANAGER TO EXECUTE A'WAIVER OF 90 -DAY
HEARING REQUIREMENT FOR ADMINISTRATIVE CIVIL LIABILITY
COMPLAINT" FOR THE PURPOSE OF REMITTING PAYMENT FOR
THE CIVIL LIABILITY OF $21,000 TO THE CALIFORNIA REGIONAL
WATER QUALITY CONTROL BOARD FOR ALLEGED DISCHARGE
VIOLATIONS AND FURTHER APPROPRIATING FUNDS
WHEREAS, the California Water Code Section 13385 allows the California
Regional Water Quality Control Board (Board) to impose administrative civil liabilities
(fines) for each discharge violation that qualified for a Mandatory Minimum Penalty
(MMP); and
WHEREAS, the current MMP for both serious and non -serious violations is
$3,000 per occurrence; and
WHEREAS, on May 19, 2008, the City of Lodi received a draft Administrative
Civil Liability Complaint (ACLC) from the Board outlining alleged MMPs for 53 non-
serious discharge violations totaling $159,000, which occurred overthe eight-year period
between January 1,2000 and December 31,2007; and
WHEREAS, the City's wastewater consultants (West Yost & Associates), along
with legal counsel (Somach, Simmons and Dunn), assisted staff in preparing a June 16,
2008, response to the Board that outlined the City's position and contended only 2 of the
53 violations ($6,000) qualified as MMPs; and
WHEREAS, upon review of the City's June 16, 2008, response, the Board
agreed to reduce the MMPs from $159,000 to $21,000 and issued ACLC No. R5-2008-
0562;and
WHEREAS, staff believes we have reached a point of diminishing returns in
negotiating the fine and the costs of engaging Board staff.
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby
authorize the City Manager to execute a 'Waiver of 90 -Day Hearing Requirement for
Administrative Civil Liability Complaint" to waive the Board hearing requirement in
accordance with the terms of Item No. 4 and remit payment for the reduced civil liability
of $21,000 for alleged discharge violations occurring between January 1, 2000 and
December 31,2007; and
BE IT FURTHER RESOLVED that funds in the amount of $21,000 be
appropriated from the Wastewater Fund for this payment.
Dated: September 3, 2008
I hereby certify that Resolution No. 2008-182 was passed and adopted by the
City Council of the City of Lodi in a regular meeting held September 3, 2008, by the
following vote:
AYES: COUNCIL MEMBERS — Hansen, Hitchcock, Johnson, Katzakian,
and Mayor Mounce
NOES: COUNCIL MEMBERS— None
ABSENT: COUNCIL MEMBERS— None
ABSTAIN: COUNCIL MEMBERS— None
City Clerk
2008-182