HomeMy WebLinkAboutAgenda Report - August 19, 2009 E-08AGENDA ITEM EWS
CITY OF LODI
,. COUNCIL COMMUNICATION
AGENDA TITLE: Adopt ResolutionAuthorizing Administrative Settlement with California Regional
Water Quality Control Board for Discharge Violations
MEETING DATE: August 19, 2009
PREPARED BY: PublicWorks Director
RECOMMENDED ACTION: Adopt a resolution authorizing administrative settlement with the
California Regional Water Quality Control Board (Board).
BACKGROUND INFORMATION: On May 13, 2009, the City of Lodi received a draft Administrative Civil
Liability Complaint (ACLC) from the Board outlining proposed Minimum
Mandatory Penalties (MMP) for non -serious discharge violations that
occurred between January I , 2000 and March 31, 2009. A total of
seven violations were noted and these are in addition to the seven violations addressed in complaint
R5-2008-0562 that covered the period between January 1, 2000 and December 31, 2007. The proposed
MMP's are associated with operational issues, sampling errors, coliform limitation exceedences, and other
minor issues. A copy of the ACLC is provided in ExhibitA.
On June 15, 2009, City staff responded to the ACLC (Exhibit B) agreeing with the proposed violations
and requested the Board considerthe Statute of Limitations pursuantto Federal Clean Water Act (CWA)
and the California Code of Civil Procedure, Section 338(1). The Board responded on July 16, 2009
(Exhibit C) stating the Statute of Limitations in the Clean Water Act does not apply to this type of
administrative proceeding because it applies only to actions by the Federal Government. Additionally,
the administrative action falls outside the scope of California Code of Civil Procedure, Section 338(i)
because it only applies to time limits on civil suits in the courts. Although the Board's order requires
payment by August 17, 2009, City staff has been allowed delayed payment pending City Council action
on August 19,2009.
The California Water Code Section 13385 allows the Boardto impose administrative civil liabilities (MMP)
for each discharge violation that qualifies for a MMP. The current MMP for both serious and non -serious
violations is $3,000 per occurrence. Staff recommendsthe City pay the fine of $21,000. Failure to pay
the fine could result in increased oversight by the Regional Board and additional penalties for
nonpayment.
FISCAL IMPACT: Wastewater operations costs will increase by $21,000.
FUNDING AVAILABLE: Budgeted Expepgiture _
Jordan Avers
Deputy City Manager4nternal Se ces Director
F. Wally S;Kndelin
PublicWorks Director
Preparedby Charles Swimley, Water Services Manager
FWS/CS/dsg
Attachments
cc: D. Stephen Schwabauer, City Attorney
Charles E. Swimley, Jr., Water Services Manager
Del Kerlin, WastewaterTreatment Superintendent
APPROVED:
Blair Kin ' Manager
K:\WP\White Slough\cc MMP $21000 2009.doc
8/13/2009
1%
L�'J
QW;
Linda S. Adams
Secretary for
Environmental
Protection
13 May 2009
California Regional Water Quality Control Board
Central Valley Region
Karl E. Longley, ScD, P.E., Chair
F. Wally Sandelin
Public Works Director
City of Lodi
P.O. Box 3006
Lodi, CA 95241-1910
11020 Sun Center Drive #200, Rancho Cordova, California 95670.6114
Phone (916) 464-3291 •FAX (916) 464-4645
http://www.'aterboards.ca.gov/centralvalleyElm v. Ar
MAY 14 2009
CITY OFE �}DI
PUBLIC WORKS U
Exhibit A
a
Arnold
Schwarzenegger
Governor
DRAFT RECORD OF VIOLATIONS FOR ASSESSMENT OF MANDATORY MINIMUM
PENALTIES, CITY OFLODI WHITE SLOUGH WATER POLLUTION CONTROL FACILITY,
SAN JOAQU/N COUNTY
Enclosed is a draft Record of Violations (ROV) that staff has prepared prior to issuance of an
Administrative Civil Liability Complaint (ACLC). The ACLC will be issued pursuantto
California Water Code Section 13385 for violations of effluent limitations of Waste Discharge
Requirements Orders 5-00-013 and R5-2007-0113 (NPDES No. CA0079243) by the City of
Lodi's White Slough Facility. The ACLC would propose an Administrative Civil Liabilityof
eighteen thousand dollars ($18,000) in mandatory minimum penalties'(MMPs) for effluent
limitation violations.
The attached ROV lists effluent violations which our records show occurred at the facility from
1 January 2000. through 31 March 2009. During review of this matter, staff determined that
ACL Complaint R5-2008-0562 (previously issued to the City of Lodi) had not included four
violations subject to MMPs. The attached ROV includes these four violations. In addition,
staff has identified two violations subject to MMPs that occurred since issuance of ACL
Complaint R5-2008-0562. In summary, MMPs in the amount of twelve thousand dollars
($12,000) are due for the omitted violations from 1 January 2000 through 31 December 2007,
and six thousand dollars ($6,000) for the additional violations that occurred from
1 January 2008 through 31 March 2009 for a total of eighteen thousand dollars ($18,000). In
the attached ROV, the violations currently subject to MMPs are shown in bold.
Please review the attached ROV for accuracy and submit any comments/corrections by
15 June 2009. We plant to issue the ACLC after that date. If you have any questions or
comments regarding the violations, please contact Barry Hilton at (916) 464-4762 or
bhilton@waterboards.ca.gov.
WENDYELI
Supervisor
Compliance and Enforcement Section
Enclosure: AttachmentA
California Environmental Protection Akencv
<ri Recycled Paper
ATTACHMENT A
ADMINISTRATIVE CIVIL LIABILITY COMPLAINT R5-2009-XXXX
City of Lodi
White Slough Water Pollution Control Facility
RECORD OF VIOLATIONS (1 January 2000 — 31 March 2009) MANDATORY PENALTIES
(Data reported under Monitoring and Reporting Program Nos. 5-00-031 and R5-2007-0113)
Violation
.Date
Type
Units
1 -kid
Measured
Period Tvpe
Remarks
CIWQS
1
24 -Feb -00
pH
pH units
6.5
6.4
Instantaneous
3
174274
2
21 -Oct -00
Coliform
MPN/100ml
500
1600
Daily
3
185932
3
28 -Oct -00
Coliform
MPN/100ml
500
1600
Daily
3
185933
4
11-Nov700
Coliform
MPN/100ml
500
1600
Daily
3
185934
5
28 -Jan -01
pH
pH units
6.5
6.3
Instantaneous
4
185877
6
1 -Feb -01
pH
pH units
6.5
6.4
Instantaneous
4
185930
7
22 -Feb -01
Coliform
MPN/100ml
500
1600
Daily
4
185931
8
26 -Feb -01
pH
pH units
6.5
6.4
Instantaneous
4
185936
9
22 -Oct -01
TSS
mg/L
50
51
Daily
3
205118
10
7 -Feb -02
Coliform
MPN/100ml
500
1600
Daily
3
205119
11
13 -Nov -02
TSS
mg/L
50
67
Daily
3
205334
12
24 -Dec -02
Coliform
MPN/100ml
500
900
Daily
3
205335
13
6 -Mar -03
Coliform
MPN/100m1
500
1600
Daily
3
247230
14
8 -Nov -05
Coliform
MPN/100ml
23
50
Daily
3
368528
15
11 -Nov -05
pH
pH units
6.5
6.4
Instantaneous
3
756451
16
12 -Nov -05
Coliform
MPN/100ml
2.2
8
7 -day
3
368534
17
29 -Nov -05
Coliform
MPN/100ml
23
50
Daily
4
368529
18
31 -Jan -06
Coliform
MPNIIOOml
23
30
Daily
4
368545
19
20 -Feb -06
Coliform
MPNIIOOml
23
240
Daily
4
368555
20
24=Feb-06
Coliform
MPNIIOOml
23
300
Daily
4
368556
21
3 -Apr -06
Coliform
MP.N/100ml
23
50
Daily
4
756463
22
13 -Oct -06
Coliform
MPN/100ml
23
30
Daily
3
756464
23
30 -Oct -06
Coliform
MPN/100ml
23
30
Daily
3
756465
24
12 -Mar -07
Coliform
MPN/100ml
23
50
Daily
3
756502
25
4 -Sep -07
Coliform
MPN/100ml
23
50
Daily
3
756506
26
15 -Sep -07
Coliform
MPN/100ml
23
80
Daily
3
756526
27
15 -Sep -07
Coliform
MPN/100ml
2.2
3
7 -day
4
756532
28
22 -Sep -07
Coliform
MPN/100ml
2.2
7
7 -day
4
756548
29
29 -Sep -07
Coliform
MPN/100ml
2.2
7
7 -day
4
756563
30
2 -Feb -08
Coliform
MPN/900ml
2.2
4
7 -day median
4
756568
31
5 -Nov -08
Manganese
N9/L
119
130
Daily Max
3
817498
32
8 -Nov -08
Coliform
MPNIIOOml
2.2
11
7 -day median
3
817493
33
10 -Jan -09
Coliform
MPN/100ml
2.2
4
7 -day median
3
817500
34
27 -Feb -09
Coliform
MPNIIOOml
23
27
Instantaneous
4
817489
ATTACHMENTA
CITY OF LODI, WHITE SLOUGH WWTP
ADMINISTRATIVE CIVIL LIABILITY COMPLAINT R5-2009-XXXX
Remarks:
1. Serious Violation: For Group I pollutantsthat exceed the effluent limitation by 40 percent or more.
2. Serious Violation: For Group II pollutantsthat exceed the effluent limitation by 20 percent or 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.
ADDITIONAL VIOLATIONS FROM 1/1/2000 THROUGH 12/31/2007
Group I Serious Violations:
0
Group 11 Serious Violations:
0
Non -Serious Exemptfrom MPs:
0
Non -serious Violations Subjectto MPs:
4
Total Additional Violations Subiectto MPs:
4
-2-
Additional Mandatory Minimum Penalty (2000-2007) = (0 Serious Violations + 4 Non -Serious Violations) x
$3,000 = $12,000
VIOLATIONS FROM 1/11/20081
3112009
Group I Serious Violations:
0
Group II Serious Violations:
0
Non -Serious Exemptfrom MPs:
3
Non -serious Violations Subjectto MPs:
2
Total Violations Subject to MPs:
2
Mandatory Minimum Penalty (2008) = (0 Serious Violations + 2 Non -Serious Violations) x $3,000 = $6,000
Total Mandatory Minimum Penalty Due= $12,000 + $6,000 = $18,000
CITY COUNCIL
LARRY D. HANSEN,
Mayor
PHIL KATZAKIAN,
Mayor Pro Tempore
SUSAN HITCHCOCK
BOB JOHNSON
JOANNE MOUNCE
11163190
MUNICIPAL SERVICE CENTER
1331 SOUTH HAM LANE
P.O. BOX 3006
LODI, CALIFORNIA 95241-1910
(209) 333-6740
FAX (209) 333-6841
EMAIL nwdentla-)lodi,Qov
http:\\www.lodi.gov
June 15,2009
Ms. Wendy Wyels
Supervisor, NPDES Compliance and Enforcement Section
California Regional Water Quality Control Board
Central Valley Region
11020 Sun Center Drive #200
Rancho Cordova CA 95670-6114
Exhibit B
BLAIR KING,
City Manager
RAND! 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 R5-2007-0113 and R5-00-031
Dear Ms. Wyels:
The purpose of this letter is to present the City of Lodi's (City's) review of the draft
Record of Violations (draft ROV) issued by the Central Valley Regional Water Quality
Control Board (Regional Board) on May 13, 2009. The draft ROV outlines violations of
effluent limitations by the City's White Slough Water Pollution Control Facility (WPCF)
that have occurred since January 28, 2000 through March 31, 2009. We understand that
this draft ROV supplements the Administrative Civil Liability Compliant (ACLC) R5-2008-
0562 previously issued to the City by the Regional Board, with four (4) additional alleged
violations for the period of January 1, 2000 through December 31, 2007, as well as five
(5) violations between January 1, 2008 and March 31, 2009. In summary, the draft ROV
includes six (6) violations subject to Mandatory Minimum Penalties (MMPs); resulting in a
fine of $18,000 for the City.
As mentioned in our response to the previous ACLC R5-2008-0562, we request
clarification on the statute of limitations that applies to MMPs. Specifically, 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 implementing the Clean Water Act (CWC § 13372(a)),
and the statute of limitations for penalties assessed pursuant to the Clean Water Act is
five years. (28 U.S.C. §2462; see also Public Interest Research Group of New Jersey,
Inc. v. Powell Duffryn Terminals, 913 F. 2d 64, 75 (3rd Cir. 1990)). If the Regional Board
R:\GROUMMMWest Yost & Assoc6\Lod1MMP#WWyels#06-09.doc 6/15/2009
Ms. Wendy Wyels
California Regional Water Quality Control Board
Page 2
intends to assess penalties outside the allowable time periods, the City requests that the
Regional Board explain the legal basis for this action.
We have reviewed the alleged violations and take no exception that they meet the
Regional Board's interpretations regarding the assessment cf MMPs. The City intends to
pay the assessed MMPs, but requests that prior to issuing the ACLC, that the
February 1, 2001 pH violation be revisited with respect to the Water Code statute cf
limitations. Thank you for your consideration.
Please contact me at (209) 333-6740 or at cswimley@lodi.gov if you have any questions
in this matter.
Sincerely,
Charles E. Swimley, Jr., P.E.
Water Services Manager
CES/myn
cc: F. Wally Sandelin, Public Works Director
Del Kerlin, Wastewater Treatment Superintendent
Ms. Roberta Larson, Somach, Simmons & Dunn
Ms. Kathryn Gies, West Yost Associates
R:\GROUP\WWW\West Yost & Assocs\LodiMMP#WWyels#06-09.doo ' 6/15/2009
Linda S. Adams
Secretatyfor
Envirownental
Protection
16 July 2009
California regional Vater Quality Control Board
Central Valley Region cul bo
Karl L. Longley, SeD, P.E., Chair
1102n %in Center nrive 0.00 Rnnnhn rnrdnvR. rmlifnrnin 9567NAI 14
Phone (916) 464-3291 - FAX (916) 464-4645
liftp://www.waterboards.on.gov/centralvalley
F. Wally Sandelin
Public Works Director
City of Lodi
P.O. Box 3006
Lodi, CA 95241-1910
.o
JUL 2 0 2009
CITY OF LODI PUBLIC WORKS pEPARTMENT
(a
Arnold
Schwarzenegger
Governor
Exhibit C
CERTIFIED MAIL
7006 2150 000 7132 2453
ADMINISTRATIVE CIVIL LIABILITY COMPLAINT NO, R5-2009-0555 FOR Av SESSMENT
OF MANDA TORY MINIMUM PENALTIES, CITY OFL ODI WHITE SLOUGH 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. 5-00-031 and R5-2007-0113 (NPDES No. CA0079243) by the City of Lodi
White Slough Water Pollution Control Facility. The Complaint charges the City of Lodi
(Discharger) with civil liability in the amount of twenty-one thousand dollars ($21,000). This
represents the sum of accrued Mandatory Minimum Penalties for effluent limitation violations
not addressed in Complaint 135-2008-0562 (violations 6, 18-20) plus violations which occurred
from 1 January 2008 through 31 March 2009.
On 13 May 2009, Central Valley Water Board staff issued a draft Record of Violations (ROV).
On 15 June 2009, the Discharger responded and agreed with the violations. This Complaint
increases the civil liabilityfrom $18,000 to $21,000 because violation 34, the fourth violation
during the preceding 180 days, was incorrectly coded as exempt from MMPs.
The Discharger requested consideration of the statute of limitations pursuant to the Federal
Clean Water Act (CWA) and in the California Code of Civil Procedure, section 338(1). The
statute of limitations in the CWA does not apply to this type of administrative proceeding
because it only applies to actions by the federal government. This administrative action falls
outside the scope of California Code of Civil Procedure, section 338(1) because it only applies
to time limits on the commencement of civil suits in the courts.
Pursuantto CWC section 13323, the Discharger may:
Pay the assessed civil liability and waive its right to a hearing before the Central Valley
Water Board by signing the enclosed waiver (checking off the box next to item #4) and
submitting it to this office by 17 August2009, along with paymentfor the full amount;
• Agree to enter into settlement discussions with the Central Valley 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 47 August 2009; or
• Contest the Complaint and/or enter into settlement discussions with the Central Valley
Water Board without signing the enclosed waiver.
California Environmental Protection Agency
Recycled Paper
.} !Ji It- ti 3 20j0!,3
F. Wally Sandelin -2- 16 July 2009
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
which time interested parties may comment on this action by submitting information to this
office, attention Bary Hilton. Should the Central Valley Water Board receive new information
or comments during this comment period, the Central Valley Water Board's Executive Officer
may withdraw the complaint, return payment, and issue a new complaint, If the Central Valley
Water Board does not hold a hearing on the matter, and if 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.
If the Central Valley Water Board does not receive a signed waiver within 30 days of the date
of this Complaint (by 17 August 2009), then a hearing will be scheduled for the
7/8/9 October 2009 Central Valley Water Board meeting in Rancho Cordova. The Central
Valley Water Board's Prosecution Team has prepared the enclosed draft Hearing Procedure
to govern the conduct of such a hearing, Any objections to this draft Hearing Procedure must
be received by Lori Okun, whose contact information is listed in the draft Hearing Procedure,
by 5 p.m. on 27 July 2009.
Any comments or evidence concerning the enclosed Complaint must be submitted in
accordance with the deadlines contained in the draft Hearing Procedure, unless these
deadlines are changed by the Central Valley Water Board's Adjudicatory Team, either on their
own accord or upon request.
In order to conserve resources, this letter transmits paper copies cf the documents to the
Discharger only. Interested persons may download the documents from the Central Valley
Water Board's Internetwebsite at:
httt)://www.waterboards.ca.ciov/centraIvaIley/tentative orders/.
Copies of these documents can also be obtained by contacting or visiting the Central Valley
Water Board's office weekdays between 8:00 AM and 5:00 PM.
If you have any questions or comments regarding the Administrative Civil Liability Complaint,
please contact Barry Hilton at (916) 464-4762 or bhilton@waterboards.ca.gov.
Wqj'
WENDY WYELS
Supervisor
Compliance and Enforcement Section
Enclosure: ACLC No. R5-2009-0555
Draft Hearing Procedures
Hearing Waiver
cc w/ encl: Mr. Kenneth Landau, 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 R5-2009-0555
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, and CWC section 13323, which
authorizes the Executive Officer to issue this Complaint. This Complaint is based on findings
that the Discharger violated provisions of Waste Discharge Requirements (WDRs) Orders
5-00-031 and R5-2007-0113 (NPDES No. CA0079243).
The Executive Officer of the Central Valley Regional Water Quality Control Board (Central
Valley Water Board) finds the following:
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 Central Valley Water Board issued WDRs Order 5-00-031 to
regulate discharges of waste from the water pollution control facility (WPCF).
3. On 10 September 2004, the Central Valley Water Board issued Resolution
R5-2004-0125, which extended certain compliance deadlines contained in WDRs Order
5-00-031 from 1 May 2004 to 21 January 2005.
4. On 14 September 2007, the Central Valley Water Board issued WDRs Order
R5-2007-0113, effective 3 November 2007, which contained new requirements and
rescinded WDRs Order 5-00-031. Although this matterwas petitioned to the State Water
Resources Control Board, and an Order is currently being finalized that will remand
portions of these WDRs to the Central Valley Water Board for re -consideration, the
subject of this petition was unrelated to the effluent limit violations that are charged in this
Complaint.
5. On 14 September 2007, the Central Valley Water Board issued Time Schedule Order
(TSO) R5-2007-0114, providing a time schedule and establishing interim effluent limits
until 17 May 2010 for nitrate, nitrite, and manganese.
6. On 14 August 2008, the Assistant Executive Officer of the Central Valley Water Board
issued Administrative Civil Liability Complaint (ACLC) R5-2008-0562 for mandatory
minimum penalties (MMPs) for effluent violations from 1 January 2000 through
ADMINISTRATIVE CIVIL LIABILITY COMPLAINT NO. R5-2009-0555 -2-
MANDATORY PENALTY
CITY OF LODI
WHITE SLOUGH WATER POLLUTION CONTROL FACILITY
SAN JOAQUIN COUNTY
31 December 2007. The Discharger paid the Complaint and the Central Valley Water
Board considers the matter resolved regarding the cited violations.
On 13 May 2009, Central Valley Water Board staff sent the Discharger a draft Record of
Violations (ROV). The ROV included violations not included in ACLC R5-2008-0562 as
well as violations accrued since issuance of that Order. On 15 June 2009, the Discharger
responded. The Discharger agreed with the violations not previously assessed MMPs
and the additional new violations. In addition, staff have determined that violation 34 on
the draft Record of Violations is subject to MMPs because it was the fourth violation within
the preceding 180 -day period.
8. The Discharger requested clarification regarding the five-year statute of limitations in the
federal Clean Water Act (CWA). This statute of limitations in the CWA only applies to
actions by the federal government and does not apply to this type of administrative
proceeding.
The Discharger requested clarification regarding the three-year statute of limitations in the
California Code of Civil Procedures, section 338(i). The Code section of which section
338 is a part makes it clear that section 338 applies only to time limits on the
commencement of civil suits in the courts. Title 2 is intended to prescribe time periods for
the bringing of civil law suits. This administrative complaint falls outside the scope of
section 338. (See also Bernd v. Eu (1979)100 Cal.App.3d 511, 161 Cal.Rptr. 58;
Rudolph v. Athletic Commission (1960) 177Cal.App.2d 1, 22, 1 Cal.Rptr. 898).
10. CWC sections 13385(h) and (i) require assessment of mandatory penalties and state, in
part, the following:
CWC section 13385(i)(1) states,
Notwithstanding any other provision of this division, and except as provided in subdivisions
0), (k), and (1), 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 report pursuant 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.
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 this article. The complaint shall
allege the act or 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.
ADMINISTRATIVE CIVIL LIABILITY COMPLAINT NO. R5-2009-0555 -3-
MANDATORY PENALTY
CITY OF LODI
WHITE SLOUGH WATER POLLUTION CONTROL FACILITY
SAN JOAQUIN COUNTY
12. WDRs Order 5-00-031 Effluent Limitations No. B. 1, states, in part: "The effluent shall not
exceed the following limits:"
Monthly Weekly
Constituents Units Avera q Averaq
.e e
2 2
Daily Daily
Avera q Maximum
e
Total Suspended Solids mg/L 20 40
2 To be ascertained by a flow proportional 24-hour composite sample.
502
13. WDRs Order 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:"
Monthly Weekly Daily
Constituents Units Avera q Avera q Maximum
e e
MPN/100m
Total Coliform L 23' __ 500
1 Monthly median value.
This deadline was extended by Resolution R5-2004-0125 to 21 January 2005.
14. WDRs Order 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 Averag Avera q Avera q Maximum
e e e
MPN/100m
Total Coliform Organisms L __ __ 2.24 23
4 As a 7 -day median.
Provision H.2 was amended by Resolution R5-2004-0125 to extend the time schedule for
full compliance to 21 January 2005 from 30 April 2004.
15. WDRs Order 5-00-031 Effluent Limitations 13.7., requires, in part, "The discharge shall not
have a pH less than 6.5 nor greater than 8.5."
16. WDRs Order R5-2007-0113 Effluent Limitations No. IV.AA .e., Total Coliform Organisms,
states: "Effluent total coliform organisms shall not exceed:
i. 2.2 most probable number (MPN) per 100 mL, as a 7 -day median; and
ii. 23 MPN/100 mL, more than once in any 30 -day period.
ADMINISTRATIVE CIVIL LIABILITY COMPLAINT NO. R5-2009-0555 -4-
MANDATORY PENALTY
CITY OF LODI
WHITE SLOUGH WATER POLLUTION CONTROL FACILITY
SAN JOAQUIN COUNTY
17. According to the Discharger's self-monitoring reports, the Discharger committed thirty-five
(35) non -serious violations of the above effluent limitations contained in Orders 5-00-031
and R5-2007-0113 during the period beginning 1 January 2000 and ending
31 March 2009. Fourteen (14) of the non -serious violations are subject to mandatory
penalties (MMPs) under CWC section 13385(1)(1) because these violations were
preceded by three or more similar violations within a six-month period. Seven (7) of these
were assessed MMPs under ACLC R5-2008-0562. The mandatory minimum penalty for
the seven (7) additional non -serious violations is twenty-one thousand dollars
($21,000).
18. 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.
19. 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 IS HEREBY GIVEN NOTICE THAT:
The Executive Officer of the Central Valley 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 matter will be held at the Central Valley Water Board meeting scheduled
on 7/8/9 October 2009, unless the Discharger does either of the following by
17 August 2009:
a) Waives the hearing by completing the attached form (checking off the box next to item
#4) and returning it to the Central Valley 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 Central Valley 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 Central Valley Water
Board along with a letter describing the issues to be discussed.
3. If a hearing on this matter is held, the Central Valley 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.
ORIGINAL SIGNED BY
PAMELA C. CREEDON, Executive Officer
ADMINISTRATIVE CIVIL LIABILITY COMPLAINT NO. R5-2009-0555 -5-
MANDATORY PENALTY
CITY OF LODI
WHITE SLOUGH WATER POLLUTION CONTROL FACILITY
SAN JOAQUIN COUNTY
16 July 2009
DATE
Attachment A: Record of Violations
BLH: 20 -Jul -09
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 (hereinafter "Discharger") in connection with Administrative
Civil Liability Complaint No. R5-2009-0555 (hereinafter the "Complaint");
2. I 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. I hereby waive any right the Discharger may have to a hearing before the Central Valley Regional Water
Quality Control Board (Central Valley Water Board)within ninety (90) days of service of the Complaint; and
4. p (Check here if the Discharger will waive the hearing requirement and will pay the fine)
a. I certify that the Discharger will 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.
R5-2009-0555" and is made payable to the "State Water Pollution Cleanup andAbatementAccount."
Payment must be received by the Central Valley Water Board by 17 August 2009 or this matterwill
be placed on the Central Valley Water Board's agenda for adoption at the 71819 October 2009
Central Valley Water Board meeting.
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 Central Valley Water Board
receive new information or comments during this comment period, the Regional Water Board's
Executive Officer may withdraw the complaint, return payment, and issue a new complaint. New
information or comments include those submitted by personnel of the Central Valley 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 Dischargerto
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. The Central Valley Water Board must receive information from the Discharger indicating
a controversy regarding the assessed penalty at the time this waiver is submitted, or the waiver may
not be accepted.) I certify that the Discharger will promptly engage the Central Valley 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. By checking this box, the Discharger requests that the Central Valley Water
Board delay the hearing so that the Discharger and Central Valley Water Board staff can discuss settlement.
It remains within the discretion of the Central Valley Water Board to agree to delay the hearing. A hearing on
the matter may be held before the Central Valley 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 Central Valley 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 of judicial civil liability. Modification of the proposed Administrative Civil Liability Order may
include increasing the dollar amount of the assessed civil liability.
(Print Name and Title)
(Signature)
(Date)
ATTACHMENTA
ADMINISTRATIVE CIVIL LIABILITY COMPLAINT NO. R5-2009-0555
City of Lodi
White
Slough Water Pollution
Control Facility
RECORD
OF VIOLATIONS (1 January
2000 — 31 March 2009) MANDATORY PENALTIES
(Data reported under Monitoring and Reporting Program Nos. 5-00-031 and R5-2007-0113)
New violations
are in boldface type.
Violation
Measure
.Date
Units
limit
d
Period Type
Remarks
CIWQS
1
24 -Feb -00
pH
pH units
6.5
6.4
Instantaneous
3*
174274
2
21 -Oct -00
Coliform
MPN/100ml-
500
1600
Daily
3*
185932
3
28 -Oct -00
Coliform
MPN/100mL
500
1600
Daily
3*
185933
4
11 -Nov -00
Coliform
MPN/100rnL
500
1600
Daily
3*
185934
5
28 -Jan -01
pH
pH units
6.5
6.3
Instantaneous
4*
185877
Instantaneou
6
1 -Feb -01
pH
pH units
6.5
6.4
s
4
185930
7
22 -Feb -01
Coliform
MPN/100mL
500
1600
Daily
4*
185931
8
26 -Feb -01
pH
pH units
6.5
6.4
Instantaneous
4*
185936
9
22 -Oct -01
TSS
mg/L
50
51
Daily
3*
205118
10
7 -Feb -02
Coliform
MPN/100mL
500
1600
Daily
3*
205119
11
13 -Nov -02
TSS
mg/L
50
67
Daily
3*
205334
12
24 -Dec -02
Coliform
MPN/100ml-
500
900
Daily
3*
205335
13
6 -Mar -03
Coliform
MPN/100ml-
500
1600
Daily
3*
247230
14
8 -Nov -05
Coliform
MPN/100mL
23
50
Daily
3*
368528
15
11 -Nov -05
pH
pH units
6.5
6.4
Instantaneous
3*
756451
16
12 -Nov -05
Coliform
MPN/1OOmL
2.2
8
7 -day
3*
368534
17
29 -Nov -05
Coliform
MPN/100mL
23
50
Daily
4*
368529
MPN/100m
18
31 -Jan -06
Coliform
L
23
30
Daily
4
368545
MPNI100m
19
20 -Feb -06
Coliform
L
23
240
Daily
4
368555
MPN/100m
20
24 -Feb -06
Coliform
L
23
300
Daily
4
368556
21
3 -Apr -06
Coliform
MPN/100ml-
23
50
Daily
4*
756463
22
13 -Oct -06
Coliform
MPN/100n-L
23
30
Daily
3*
756464
23
30 -Oct -06
Coliform
MPN/100n-L
23
30
Daily
3*
756465
24
12 -Mar -07
Coliform
MPN/100mL
23
50
Daily
3*
756502
25
4 -Sep -07
Coliform
MPN/100n-L
23
50
Daily
3*
756506
26
15 -Sep -07
Coliform
MPN/100ml-
23
80
Daily
3*
756526
27
15 -Sep -07
Coliform
MPN/100mL
2.2
3
7 -day
3*
756532
28
22 -Sep -07
Coliform
MPN/100mL
2.2
7
7 -day
4*
756548
29
29 -Sep -07
Colifo rm
MPN/100m L
2.2
7
7 -day
4*
756563
MPN/100m
30
2 -Feb -08
Coliform
L
2.2
4
7 -day median
4
756568
31
30 -Sep -08
BOD
mg/L
10
11
Monthly
3
824450
Manganes
32
5 -Nov -08
a
pg/L
119
130
Daily Max
3
817498
MPN/100m
33
8 -Nov -08
Coliform
L
22
11
7 -day median
3
817493
MPN/100m
34
10 -Jan -09
Coliform
L
2.2
4
7 -day median
4
817500
MPN/100m
Instantaneou
35
27 -Feb -09
Coliform
L
23
27
s
4
817489
ATTACHMENT A
CITY OF LODI, WHITE SLOUGH WWTP
ADMINISTRATIVE CIVIL LIABILITY COMPLAINT R5-2009-0555
Remarks:
1. Serious Violation: For Group I pollutants that exceed the effluent limitation by 46 percent or more.
2. Serious Violation: For Group II pollutants that exceed the effluent limitation by 20 percent or 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.
ADDITIONAL VIOLATIONS FROM 1/1/2000 THROUGH 12f31,
Group I Serious Violations: 0
Group II Serious Violations: 0
Non -Serious Exempt from MPs: 0
Non -serious Violations Subject to MPs: 4
Total Additional Violations Subject to MPs: 4
-2-
Additional Mandatory Minimum Penalty (2000-2007) _ (0 Serious Violations + 4 Non -Serious Violations) x
$3,000 = $12,000
VIOLATIONS FROM 1/1/2008 THROUGH 3/31/2009
Group I Serious Violations:
0
Group II Serious Violations:
0
Non -Serious Exempt from MPs:
3
Non -serious Violations Subject to MPs:
3
Total Violations Subject to MPs:
3
Mandatory Minimum Penalty (2008) o (0 Serious Violations + 3 Non -Serious Violations) x $3,000 = $9,000
Total Mandatory Minimum Penalty Due= $12,000 + $9,000 = $21,000
* Violations assessed Mandatory Minimum Penalites in Administrative Civil Liability Complaint R5-2008-0562.
RESOLUTION NO. 2009-115
A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING
ADMINISTRATIVE SETTLEMENT WITH CALIFORNIA
REGIONAL WATER QUALITY CONTROL BOARD FOR
ALLEGED DISCHARGE VIOLATIONS
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, on May 13, 2009, the City of Lodi received a draft Administrative Civil
Liability Complaint (ACLC) from the Board outlining alleged MMP's for non -serious discharge
violations that were not addressed in complaint R5-2008-0562 (which covered violations
between January 1, 2000 and December 31, 2007) plus violations that occurred between
January 1, 2008 and March 31, 2009. The purported violations are associated with operational
upsets, sampling errors, coliform limitation exceedences, and other minor issues; and
WHEREAS, on June 15, 2009, the City responded to the Draft ACLC agreeing with the
alleged violations and, at Council direction, requested the Board consider the Statute of
Limitations pursuant to Federal Clean Water Act (CWA) and the California Code of Civil
Procedure, Section 338(i). In the July 16, 2009 ACLC, the Board responds the Statute of
Limitations in the Clean Water Act does not apply to this type of administrative proceeding
because it applies only to actions by the Federal Government. Additionally, the administrative
action falls outside the scope of California Code of Civil Procedure, Section 338(1) because it
only applies to time limits on civil suits in the courts; and
WHEREAS, the California Water Code Section 13385 allows the Board to impose
administrative civil liabilities (fines) for each discharge violation that qualifies for an MMP. The
current MMP for both serious and non -serious violations is $3,000 per occurrence. Staff
recommends the City pay the fine of $21,000.
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby
authorize payment for the alleged civil liability of $21,000 to the California Regional Water
Quality Control Board not previously addressed in Complaint R5-2008-0562 (Violations 6, 18-
20) plus violations which occurred from January 1, 2008 through March 31, 2009.
Dated: August 19, 2009
------------------------------------------------------------------------
........................................................................
hereby certify that Resolution No. 2009-115 was passed and adopted by the City
Council of the City of Lodi in a regular meeting held August 19, 2009, by the following vote:
AYES: COUNCIL MEMBERS — Hitchcock, Johnson, Katzakian, Mounce, and
Mayor Hansen
NOES: COUNCIL MEMBERS — None
ABSENT: COUNCIL MEMBERS— None
ABSTAIN: COUNCIL MEMBERS— None
&JOHL
City Clerk
2009-115