Civil Penatly Department of Environmental Quality -0-r-eg6
Department of Environmental Quality
fi Office of Compliance and Enforcement
70011E Multnomah St Ste 600
KateBrown,Governor
Portland, OR 97232-4100
(503)229-5696
FAX(503)229-5100
August 18, 2017 TTY:711
CERTIFIED MAIL: 7016 2140 0000 2420 3242
City of Sandy
c/o Kim Yamashita, City Manager
39250 Pioneer Blvd.
Sandy, OR 97055
Re: Notice of Civil Penalty Assessment and Order
Case No. WQ/M-NWR-2017-113
This letter is to inform you that the Oregon Department of Environmental Quality (DEQ) has issued
you a civil penalty of$36,675 for violations of state law protecting water quality. These violations
include those arising from a May 3, 2017 unpermitted chlorine release to Tickle Creek that caused a
fish kill, and exceedances of pollution limits in the city's wastewater discharge permit.
Included in Section IV of the Notice is an order requiring you to remediate the remaining chlorine
contamination and to design and construct upgrades to the city's wastewater collection, treatment and
disposal system to ensure future compliance with pollution limits and other requirements of your
permit.
If you wish to appeal this matter, DEQ must receive a request for a hearing within 20 calendar days
from your receipt of this letter. The hear' T a ecfrre5t must, be 1 n,wx i t ng. Send your request to DEQ
Office of Compliance and Enforcement:
Via mail—700 NE Multnomah Street, Suite 600, Portland, Oregon 97232
Via email—DEQappeals@deq.state.or.us
Via fax—503-229-5100
Once DEQ receives your request, we will arrange to meet with you to discuss this matter. If DEQ does
not receive a timely written hearing request, the penalty will become due. Alternatively, you can pay
the penalty by sending a check or money order to the above address.
The attached Notice further details DEQ's reasons for issuing the penalty and provides further
ew e . disc ert1t g is c.as _with
instructions for appealing the penalty. Please reviand referto it when
DEQ.
DEQ may allow you to resolve part of your penalty through the completion of a Supplemental
Environmental Project (SEP). SEPs are environmental improvement projects that you sponsor instead
of paying a penalty. Further information is available by calling the number below or at
http://viww.oregon.gov/deq/Regulations/Pages/SEP.aspx.
DEQ's rules are available at http://www.oregon.gov/deq/Regulations/Pages/Statutes.aspx or by calling
the number below.
City of Sandy
Case No. WQ/M-NWR-2017-113
Page 2
If you have any questions,please contact Jeff Bachman at 503-229-5950 or toll free in Oregon at 800-
452-4011, extension 5950.
Sincerely,
Sarah G. Wheeler,Acting Manager
Office of Compliance and Enforcement
Enclosures
cc: Randall Bailey,Northwest Region, DEQ
Tiffany Yelton-Bram,Northwest Region, DEQ
Michael Greenburg,Northwest Region, DEQ
Shaumae Hall, Accounting, DEQ
John Koestler, WQ, DEQ
1 BEFORE THE ENVIRONMENTAL QUALITY COMMISSION
2 OF THE STATE OF OREGON
3 IN THE MATTER OF: ) NOTICE OF CIVIL PENALTY
CITY OF SANDY, ) ASSESSMENT AND ORDER
4 a municipality of the state of Oregon, )
CASE NO. WQ/1\4-NWR-2017-113
5 Respondent. )
6
7 I. AUTHORITY
8 The Department of Environmental Quality(DEQ)issues this Notice of Civil Penalty Assessment
9 and Order(Notice)pursuant to Oregon Revised Statutes (ORS)468.100 and 468.126 through 468.140,
10 ORS Chapters 468B and 183 and Oregon Administrative Rules (OAR) Chapter 340,Divisions 011, 012,
11 041 and 045.
12 11. FINDINGS OF FACT
13 1. Respondent operates a wastewater collection, treatment and disposal system pursuant to
14 National Pollutant Discharge Elimination System Permit No. 102492 (the permit) issued to Respondent
15 by DEQ.
16 2. The permit authorizes Respondent to construct, install, modify and operate its system
17 and discharge to public waters adequately treated wastewater (effluent) in conformance with the
18 requirements, limitations and conditions set forth in the permit. The permit was in effect at all material
19 times.
20 3. From May 1 to October 31 each year, the Respondent uses a sodium hypochlorite and
21 water solution to disinfect its wastewater effluent prior to discharge to an offsite holding pond for
22 reuse.
23 4. Respondent's permit does not authorize it to discharge any waste to waters of the state
24 from May 1 to October 31.
25 5. On or about May 3, 2017, sodium hypochlorite solution leaked from a pipe that carries
26 the chemical from a storage tank to Respondent's chlorine contact basin, mixed with ground and/or
27 storm water and discharged from Respondent's storm water outfall to Tickle Creek.
NOTICE OF CIVIL PENALTY ASSESSMENT AND ORDER CASE NO.WQ(M-NWR-2017-113
Page I of 9
1 6. The May 3, 2017 discharge contained chlorine at a concentration of 47 milligrams per
2 liter (mg/L).
3 7. The water quality standard adopted by the Oregon Environmental Quality Commission
4 (EQC) for acute chlorine toxicity to freshwater aquatic life is 0.019 mg/L, per OAR 340-041-0033(3).
5 8. Schedule A, Condition l.a.(2) of the permit limits the mass load of total suspended
6 solids (TSS) in Respondent's effluent to a maximum of 250 pounds per day.
7 9. On March 22, 2017, Respondent discharged effluent with a TSS daily mass load limit of
8 291 pounds, exceeding the daily limit by 16%.
9 10. Schedule A, Condition l.a.(2) of the permit limits the weekly average mass load of TSS
10 in Respondent's effluent to a maximum of 187 pounds per day (lbs/day).
11 11. Respondent discharged effluent with weekly average TSS mass loads as follows:
12 Week TSS Weekly Average Percentage over limit
13 10/15/16 312 lbs/day 67%
14 02/05/17 313/lbs/day 67%
15 02/12/17 3071bs/day 64%
16 02/19/17 295 lbs/day 58%
17 03/05/17 334 lbs/day 79%
18 03/12/17 337 lbs/day 80%
19 03/19/17 238 lbs/day 27%
20 04/02/17 227 lbs/day 21%
21 04/23/17 290 lbs/day 55%
.............................. ........................................................ ......
22 13. Schedule A, Condition l.a.(2) of the permit limits the monthly average mass load of
23 TSS in Respondent's effluent to a maximum of 125 lbs/day.
24 14. Respondent discharged effluent with monthly average TSS mass loads as follows:
25 Month TSS Monthly Average Percentage over limit
26 October 2016 240 lbs/day 92%
�..,�.. .. ...... .February 2017 ........................... .............246 .__..._.
27 y............1 lbs/day 97%
NOTICE OF CIVIL PENALTY ASSESSMENT AND ORDER CASE NO.WQ/1\4-NWR-2017-113
Page 2 of 9
1 March 2017 209 lbs/day 67%
2 Apri12017 195 lbs/day 56%
3
15. Schedule A, Condition La.(2) of the permit limits the weekly average mass load of
4
biochemical oxygen demand (BODS) in Respondent's effluent to a maximum of 187 lbs/day.
5
16. Respondent discharged effluent with weekly average BODS mass loads as follows:
6 _.............. ............. _ _.......-... . ..............
Week BODS Weekly Average Percentage over limit
7 �,ryw. .._...,......- _..._. ............. _..
10/08/16 272 lbs/day 45%
8 _ _ __....._
10/15/16 239 lbs/day 28%
9 _... _... ... ... _ry .._._._..... .. ... ... .. .... _........
02/05/17 270
lbs/day 44%
10 ................. ..._._. ....
11 02/12/17.._......._._.............w._. 211„lbs/day. . __ .............
13%
y. ......_._.......
12 w........ .......... .. ... 03/05/17.... _. ......... .....w .............19$ lbs/da 6%
....
__..... ...... 03/12/17... �..... ...___._.. w� ..... 198 lbs/day. .w............_._. .�w_ ._....... 6%_...
13
14 17. Schedule A, Condition La.(2) of the permit limits the monthly average mass load of
15 BODS in Respondent's effluent to a maximum of 125 lbs/day.
18. Respondent discharged effluent with monthly BODS mass loads as follows:
16
t
17 Monthly Average Percentage over limit
Month.............w w w .. ...,_ BODS.... w .._..................... ...._.....__._ ........� _.....
18 October 2016 250 lbs/day 100%
19 February..2.0.1 7_ . .._......._ _186.lbs/day..... ........ ... _...... 49%
20 March 2017 1521bs/day 22%
21 19. Schedule A, Condition l.a.(3) of the permit limits the monthly average ammonia(NH3)
22 concentration in Respondent's effluent to 3.7 mg/L.
23 20. In October 2016, Respondent discharged effluent with a monthly average NH3
24 concentration of 39 mg/L.
25 21. Schedule A, Condition l.b.(2) of the permit limits Total Coliform bacteria in
26 Respondent's recycled wastewater to a median of 2.2 organisms per 100 milliliters (mL) based on the
27 results of the last seven days of sampling.
NOTICE OF CIVIL PENALTY ASSESSMENT AND ORDER CASE NO.WQ/M-NWR-2017-113
Page 3 oI`9
1 22. Respondent's recycled wastewater contained a median of 2.6 organisms per 100
2 milliliters (mL) for the seven day periods ending June, 13, 14, and 15, 2016.
3 23. Schedule A, Condition l.a.(1) of the permit prohibits Respondent from discharging
4 effluent to waters of the state during the period May 1 through October 31.
5 24. From October 12 through October 24, 2016, Respondent discharged effluent to Tickle
6 Creek.
7 25, On June 16, 2017, Respondent, as a result of an overflow, discharged raw sewage from
8 its North Side Pump Station, located at 36145 SE Hwy 26, to a tributary of Tickle Creek.
9 26. Schedule F, Section D, Condition 5.a of the permit states that Respondent must file a
10 written report with DEQ within five days of a sewage overflow and that the report must include, among
11 other things, information regarding the cause of the overflow and steps taken or planned to reduce,
12 eliminate, and prevent reoccurrence of the overflow.
13 27. Respondent's five day report filed after the June 16, 2017 raw sewage overflow did not
14 contain information regarding the cause of the overflow and steps taken or planned to reduce, eliminate,
15 and prevent reoccurrence of the overflow.
16 28. Schedule D, Condition 6.a of the permit states that Respondent"shall have its
17 wastewater system supervised by one or more operators certified in classification and grade level (equal
18 to or greater)that corresponds with the classification (collection and/or treatment) of the system to be
19 supervised as specified on page one of this permit."
20 29. As of January 1, 2017 and continuing to date, Respondent did not have a certified
21 operator for its wastewater system.
22 III. CONCLUSIONS
23 1. On or about May 3, 2017, Respondent violated ORS 468B.025(1)(a) by causing
24 pollution of waters of the state. Specifically, Respondent discharged sodium hypochlorite, a substance
25 that alters the physical, chemical or biological properties of water to Tickle Creek, a water of the state
26 pursuant to ORS 468B.005(10), as described in Section II, above. This is a Class I violation pursuant
27 to OAR 340-012-0055(1)(a). DEQ assesses a$7,200 civil penalty for this violation.
NOTICE OF CIVIL PENALTY ASSESSMENT AND ORDER CASE NO.WQ/1\4-NWR-2017-113
Page 4 of 9
1 2. On or about May 3, 2017, Respondent violated ORS 468B.025(1)(b) by discharging a
2 waste that reduced the quality of state waters below a water quality standard established by the
3 Environmental Quality Commission. Specifically, Respondent discharged sodium hypochlorite, a
4 waste pursuant to ORS 468B.005(9), causing an exceedance of the freshwater aquatic life acute
5 chlorine toxicity standard in Tickle Creek, a water of the state pursuant to ORS 468B.005(10), as
6 described in Section Il, above. This is a Class 1 violation pursuant to OAR 340-012-0055(1)(b). DEQ
7 assesses a $7,200 civil penalty for this violation.
8 3. On or about May 3, 2017, Respondent violated ORS 468B.050(1)(a) by discharging a
9 waste to waters of the state without a permit authorizing such discharge. Specifically, Respondent
10 discharged sodium hypochlorite, a waste pursuant to ORS 468B.005(9), to Tickle Creek, a water of the
11 state pursuant to ORS 468B.005(10), without a permit authorizing such discharge, as described in
12 Section 11, above. This is a Class I violation pursuant to OAR 340-012-0055(1)(c). DEQ assesses a
13 $7,200 civil penalty for this violation.
14 4. Respondent violated ORS 468B.025(2)by exceeding TSS effluent limits in Schedule A,
15 Condition 1 of its permit, as described in Section Il, above. Those instances where the limit was
16 exceeded by 50 percent or more are Class I violations pursuant to OAR 340-012-0055(1)(k)(A).
17 Those instances where the limit was exceeded by 20 percent or more, but less than 50 percent, are Class
18 11 violations pursuant to OAR 340-012-0055(2)(a)(A). Those instances where the limit was exceeded
19 by less than 20 percent are Class III violations pursuant to OAR 340-12-0055(3)(b)(A). DEQ assesses a
20 $3,600 civil penalty for these violations.
21 5. Respondent violated ORS 468B.025(2)by exceeding BOD5 effluent limits in Schedule
22 A, Condition 1 of its permit, as described in Section Il, above. The instance where the limit was
23 exceeded by 50 percent or more is a Class I violation pursuant to OAR 340-012-0055(1)(k)(A). Those
24 instances where the limit was exceeded by 20 percent or more, but less than 50 percent, are Class Il
25 violations pursuant to OAR 340-012-0055(2)(a)(A). Those instances where the limit was exceeded by
26 less than 20 percent are Class III violations pursuant to OAR 340-12-0055(3)(b)(A). DEQ assesses a
27 $2,025 civil penalty for these violations.
NOTICE OF CIVIL PENALTY ASSESSMENT AND ORDER CASE NO.WQ/M-NWR-2017-113
Page 5 of 9
1 6. Respondent violated ORS 468B.025(2) by exceeding the monthly average ammonia
2 concentration effluent limit in Schedule A, Condition l.a (3) of its permit, as described in Section II,
3 above. This a Class I violation pursuant to OAR 340-012-0055(1)(1). DEQ assesses a$1,800 civil
4 penalty for this violation.
5 7. On or about October 12 through October 24,2016,Respondent violated ORS
6 468B.025(1)(a)by causing pollution of waters of the state. Specifically, Respondent discharged effluent
7 containing TSS and other wastes as defined by ORS 468B.005(9)that alter the physical, chemical or
8 biological properties of water,to Tickle Creek, a water of the state pursuant to ORS 468B.005(10), during
9 a period when discharge of effluent to waters of the state was expressly prohibited by its permit, as
10 described in Section II, above. These are Class I violations pursuant to OAR 340-012-0055(1)(a). DEQ
11 assess a$4,050 civil penalty for these violations.
12 8. On or about June 16, 2017, Respondent violated ORS 468B.025(1)(b)by discharging a
13 waste that reduced the quality of state waters below a water quality standard established by the
14 Environmental Quality Commission. Specifically, Respondent violated OAR 340-041-0009(3)by
15 discharging raw sewage to a tributary of Tickle Creek, a water of the state pursuant to ORS 468B.005(10).
16 This is a Class I violation pursuant to OAR 340-012-0055(1)(b). DEQ assesses a$3,600 penalty for this
17 violation.
18 9. On or about June 21, 2017, Respondent violated ORS 468B.025(2)by failing to comply
19 with a condition of its permit. Specifically, Respondent violated Schedule F, Section D, Condition 5.a of
20 the permit when it failed to meet reporting requirements for a sewage overflow, as described in Section II,
21 above. This is a Class I violation pursuant to OAR 340-012-0055(1)(e). DEQ does not assess a civil
22 penalty for this violation.
23 10. On or about January 1, 2017, and ongoing as of the date of this Notice,Respondent
24 violated ORS 468B.025(2)by failing to comply with a condition of its permit. Specifically,Respondent
25 violated Schedule D, Condition 6.a of the permit by failing to have its wastewater system supervised by an
26 adequately certified operator. These are Class I violations pursuant to OAR 340-012-0055(1)(h). DEQ
27 does not assess a penalty for these violations.
NOTICE Or CIVIL PENALTY ASSESSMENT'AND ORDER CASE NO.WQ/M-NWR-2017-113
Page 6 of 9
I IV. ORDER TO PAY CIVIL PENALTY AND TO COMPLY
2 Based upon the foregoing FINDINGS OF FACTS AND CONCLUSIONS, Respondent is
3 hereby ORDERED TO: Pay a total civil penalty of$36,675. The determinations of the civil penalties are
4 attached as Exhibits 1 through 8 and are incorporated as part of this Notice.
5 If you do not file a request for hearing as set forth in Section V below, your check or money
6 order must be made payable to "State Treasurer, State of Oregon" and sent to the DEQ, Business
7 Office, 700 NE Multnomah Street, Suite 600, Portland, Oregon 97232. Once you pay the penalty,
8 the Findings of Fact, Conclusions and Order become final.
9 1. Within 10 days after the order becomes final by operation of law or on appeal, submit to
10 DEQ a plan for remediating any sodium hypochlorite remaining in the soil from the May 3, 2017
11 release.
12 2. Within 5 days of receiving DEQ comments, revise the plan consistent with any DEQ
13 comments and commence implementation of the plan.
14 3. Within 30 days of commencement of implementation of the plan, complete the remediation
15 in accordance with the plan.
16 4. Within 14 days of completion of the remediation, submit to DEQ a report documenting the
17 remediation.
18 5. Within 180 days after the order becomes final by operation of law or on appeal submit a
19 Facilities Plan for DEQ review and approval.
20 6. Within 30 days of receiving DEQ comments on the Facilities Plan, revise the plan consistent
21 with any DEQ comments and resubmit for DEQ review and approval.
22 7. Within 90 days of receiving DEQ approval of the Facilities Plan, submit for DEQ review
23 and approval a Predesign Report for a new or upgraded sewage treatment plant. The Predesign report
24 must include an evaluation of the cost effectiveness of Respondent's chosen alternative from the
25 approved Facilities Plan.
26 8. Within 60 days of receiving DEQ comments on the Predesign Report, revise the report
27 consistent with any DEQ comments and resubmit for DEQ review and approval.
NOTICE OF CIVIL PENALTY ASSESSMENT AND ORDER CASE NO.WQ/1\4-NWR-2017-113
Page 7 of 9
1 9. Within one year and 90 days of DEQ approval of the Predesign Report, submit Design Plans
2 and Construction Specifications for a new or upgraded sewage treatment plant for DEQ review and
3 approval.
4 10. Within 60 days of receiving DEQ comments on the Design Plan and Specifications, revise
5 the plan and specifications consistent with any DEQ comments and resubmit for DEQ review and
6 approval.
7 11. Within one year and 120 days of DEQ approval of the Design Plan and Specifications
8 complete construction of the new or upgraded sewage treatment plant.
9 V. NOTICE OF RIGHT TO REQUEST A CONTESTED CASE HEARING
10 You have a right to a contested case hearing on this Notice, if you request one in writing. DEQ
I I must receive your request for hearing within 20 calendar days from the date you receive this Notice.
12 If you have any affirmative defenses or wish to dispute any allegations of fact in this Notice or
13 attached exhibit(s), you must do so in your request for hearing, as factual matters not denied will be
14 considered admitted, and failure to raise a defense will be a waiver of the defense. (See OAR 340-011-
15 0530 for further information about requests for hearing.) You must send your request to: DEQ, Office
16 of Compliance and Enforcement, 700 NE Multnomah Street, Suite 600, Portland, Oregon 97232,
17 fax it to 503-229-5100, or email it to DEQappeals@deq.state.or.us. An administrative law judge
18 employed by the Office of Administrative Hearings will conduct the hearing, according to ORS
19 Chapter 183, OAR Chapter 340, Division 011 and OAR 137-003-0501 to 0700. You have a right to be
20 represented by an attorney at the hearing, however you are not required to be. If you are an individual,
21 you may represent yourself. If you are a corporation, partnership, limited liability company,
22 unincorporated association,trust or government body, you must be represented by an attorney or a duly
23 authorized representative, as set forth in OAR 137-003-0555.
24 Active duty service-members have a right to stay proceedings under the federal Service
25 Members Civil Relief Act. For more information, please call the Oregon State Bar at 1-800-
26 452-8260 or the Oregon Military Department at 1-800-452-7500. Additional information can be found
27 online at the United States Armed Forces Legal Assistance (AFLA) Legal Services Locator website
NOTICE OF CIVIL,PENALTY ASSESSMENTAND ORDER CASE NO.WQ/M-NWR-2017-113
Page 8 of 9
2 If you fail to file a timely request for hearing, the Notice will become a final order by default
3 without further action by DEQ, as per OAR 340-011-0535(1). If you do request a hearing but later
4 withdraw your request, fail to attend the hearing or notify DEQ that you will not be attending the
5 hearing, DEQ will issue a final order by default pursuant to OAR 340-011-0535(3). DEQ designates
6 the relevant portions of its files, including information submitted by you, as the record for purposes of
7 proving a prima facie case.
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11 Date Sarah G. Wheeler,Acting Manager
Office of Compliance and Enforcement
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NOTICE OF CIVIL PENALTY ASSESSMENT AND ORDER CASE NO.WQ/M-NWR-2017-113
Page 9 of 9
EXHIBIT
FINDINGS AND DETERMINATION OF RESPONDENT'S CIVIL PENALTY
PURSUANT TO OREGON ADMINISTRATIVE RULE (OAR) 340-012-0045
VIOLATION 1: Causing pollution of waters of the state in violation of OAR
468B.025(l)(a).
.CLASSIFICATION: This is a Class I violation pursuant to OAR 340-012-0055(1)(a).
MA,G,N"I,",I,",,UllD"Ellll:lI The magnitude of the violation is major pursuant to OAR 340-012-
0130(3)
40-012-
0130(3) as there is no selected magnitude specified in OAR 340-012-
0135
40-012-
0135 applicable to this violation and DEQ finds that the violation had
a significant adverse impact on human health or the environment as
the violation resulted in a fish kill.
CIVIL PENALTY FORMULA: The formula for determining the amount of penalty of each
violation is: BP + [(0.1 x BP)x (P+H+0+M+Q] +EB
"BP" is the base penalty, which is $3,000 for a Class 1, major magnitude violation in the matrix
listed in OAR 340-012-0140(4)(b)(A)(i) and applicable pursuant to OAR 340-012-
0 1 40(4)(a)(F)(i),because Respondent committed a water quality violation and operates a
municipal wastewater treatment facility with a permitted flow of less than two million
gallons per day.
is whether Respondent has any prior significant actions, as defined in OAR 340-012-
0030(19), in the same media as the violation at issue that occurred at a facility owned or
operated by the same Respondent, and receives a value of 10 according to OAR 340-012-
0145(2)(a),
40-012-
0145(2)(a),because Respondent has prior significant actions totaling more than nine Class I
equivalent violations, stemming from Case Nos. WQA4-NVv'R-13-13 9 and WQ/1\4-NWR-
2016-084.
"H" is Respondent's history of correcting prior significant actions and receives a value of 0
according to OAR 340-012-0145(3)(c), because there is insufficient information on which to
base a finding under paragraphs (3)(a) or (b).
"0" is whether the violation was repeated or ongoing and receives a value of 0 according to
OAR 340-012-0145(4)(a), because the violation occurred on a single day.
"M" is the mental state of the Respondent and receives a value of 4 according to OAR 340-012-
0145(5)(c),because Respondent was negligent. Respondent failed to exercise reasonable
care to avoid the foreseeable risk of committing the violation by failing to install measures
to detect a leak from its sodium hypochlorite delivery system.
Case No. WQ/M-NWR-2017-113
Exhibit 1 Page 1
"C" is Respondent's efforts to correct or mitigate the violation and receives a value of 0
according to OAR 340-012-0145(6)(f), because there is insufficient information to make a
finding under paragraphs (6)(a)through(6)(e), or(6)(g).
"EB" is the approximate dollar value of the benefit gained and the costs avoided or delayed as a
result of the Respondent's noncompliance. It is designed to "level the playing field"by
taking away any economic advantage the entity gained and to deter potential violators from
deciding it is cheaper to violate and pay the penalty than to pay the costs of compliance. In
this case, "EB"receives a value of$0 as Respondent's economic benefit was de minimis.
Respondent could have prevented the violation by testing the integrity of its sodium
hypochlorite delivery system and bypassing it at minimal expense.
PENALTY CALCULATION: Penalty=BP + [(0.1 x BP)x(P+H+ 0+M+ Q +EB
=$3,000+ [(0.1 x$3,000)x(10+0 +0 +4 + 0)] +$0
=$3,000+ [$300 x 14] +$0
=$3,000+$4,200+$0
=$7,200
Case No. WQ/M-NWR-2017-113
Exhibit 1 Page 2
EXHIBIT 2
FINDINGS AND DETERMINATION OF RE,SPONDENT`S CIVIL PENALTY
PURSUANT TO OREGON ADMINISTRATIVE RULE (OAR) 340-012-0045
VIOLATION-1. Reducing the quality of state waters below a water quality standard
established by the Environmental Quality Commission in violation of
ORS 468B.025(1)(b).
CLASSIFICATION: This is a Class I violation pursuant to OAR 340-012-0055(1)(b).
MAGNITUDE:, The magnitude of the violation is major pursuant to OAR 340-012-
0 13 5(2)(b)(A)(iii) as the concentration of chlorine in Respondent's
discharge exceeded the freshwater aquatic life acute toxicity water
quality standard for chlorine of.019 mg/L.
C IL PENALTY FORMULA: The formula for determining the amount of penalty of each
violation is: BP + [(0.1 x BP)x (P+H+O+M+ C)] +EB
"BP" is the base penalty,which is $3,000 for a Class 1, major magnitude violation in the matrix
listed in OAR 340-012-0140(4)(b)(A)(i) and applicable pursuant to OAR 340-012-
0 1 40(4)(a)(F)(i)because Respondent committed a water quality violation and operates a
municipal wastewater treatment facility with a permitted flow of less than two million
gallons per day.
`"P"" is whether Respondent has any prior significant actions, as defined in OAR 340-012-
0030(19), in the same media as the violation at issue that occurred at a facility owned or
operated by the same Respondent, and receives a value of 10 according to OAR 340-012-
0145(2)(a),because Respondent has prior significant actions totaling more than nine Class I
equivalent violations, stemming from Case Nos. WQ/1\4.-NWR-13-139 and WQ/1\4-NWR-
2016-084.
"H" is Respondent's history of correcting prior significant actions and receives a value of 0
according to OAR 340-012-0145(3)(c), because there is insufficient information on which to
base a finding under paragraphs (3)(a) or (b).
"O" is whether the violation was repeated or ongoing and receives a value of 0 according to
OAR 340-012-0145(4)(a),because the violation occurred on a single day.
"M" is the mental state of the Respondent and receives a value of 4 according to OAR 340-012-
0145(5)(c),because Respondent was negligent. Respondent failed to exercise reasonable
care to avoid the foreseeable risk of committing the violation by failing to install measures
to detect a leak from its sodium hypochlorite delivery system.
Case No. WQ/M-NWR-2017-113
Exhibit 2 Page 1
"C" is Respondent's efforts to correct or mitigate the violation and receives a value of 0
according to OAR 340-012-0145(6)(f),because there is insufficient information to make a
finding under paragraphs (6)(a)through(6)(e), or(6)(g).
TB" is the approximate dollar value of the benefit gained and the costs avoided or delayed as a
result of the Respondent's noncompliance. It is designed to "level the playing field"by
taking away any economic advantage the entity gained and to deter potential violators from
deciding it is cheaper to violate and pay the penalty than to pay the costs of compliance. In
this case, "EB"receives a value of$0 as Respondent's economic benefit was de minimis.
Respondent could have prevented the violation by testing the integrity of its sodium
hypochlorite delivery system and bypassing it at minimal expense,
111"NALTY CALCULA]"ION: Penalty=BP+ [(0.1 x BP) x (P +H+0+M+ Q +EB
=$3,000 4- [(0.1 x $3,000)x(10+0+0+4 + 0)] +$0
=$3,000+ [$300 x 14] +$0
= $3,000+$4,200+ $0
= $7,200
Case No. WQ/1\4-NWR-2017-113
Exhibit 2 Page 2
EXHIBIT 3
FINDINGS AND DETERMINATION OF RESPONDENT'S CIVIL PENALTY
PURSUANT TO OREGON ADMINISTRATIVE RULE (OAR) 340-012-0045
VIOLATION„3: Discharging wastes to waters of the state without a permit
authorizing such discharge in violation of ORS 468B.050(1)(a).
CLASSIFICATION: This is a Class I violation pursuant to OAR 340-012-0055(1)(c).
MAGNITUDES The magnitude of the violation is major pursuant to OAR 340-012-
0130(3) as there is no selected magnitude specified in OAR 340-012-
4135 applicable to this violation and DEQ finds that the violation had
a significant adverse impact on human health or the environment as
the violation resulted in fish kill.
CIVILwwPENALTY-FORMULA: The formula for determining the amount of penalty of each
violation is: BP + [(0.1 x BP)x (P+H+O +M+C)] +EB
"BP" is the base penalty, which is $3,000 for a Class I, major magnitude violation in the matrix
listed in OAR 340-012-0140(4)(b)(A)(i) and applicable pursuant to OAR 340-012-
0 1 40(4)(a)(F)(i)because Respondent committed a water quality violation and operates a
municipal wastewater treatment facility with a permitted flow of less than two million
gallons per day.
""P"" is whether Respondent has any prior significant actions, as defined in OAR 340-012-
0030(19), in the same media as the violation at issue that occurred at a facility owned or
operated by the same Respondent, and receives a value of 10 according to OAR 340-012-
0145(2)(a),because Respondent has prior significant actions totaling more than nine Class I
equivalent violations, stemming from Case Nos. WQ/M-NWR-13-139 and WQ/M-NWR-
2016-084.
"H" is Respondent's history of correcting prior significant actions and receives a value of 0
according to OAR 340-012-0145(3)(c), because there is insufficient information on which to
base a finding under paragraphs (3)(a) or (b).
"O" is whether the violation was repeated or ongoing and receives a value of 0 according to
OAR 340-012-4145(4)(a),because the violation occurred on a single day.
"M" is the mental state of the Respondent and receives a value of 4 according to OAR 340-012-
0145(5)(c),because Respondent was negligent. Respondent failed to exercise reasonable
care to avoid the foreseeable risk of committing the violation by failing to install measures
to detect a leak from its sodium hypochlorite delivery system.
Case No. WQ/M-NWR-2017-113
Exhibit 3 Page 1
"C" is Respondent's efforts to correct or mitigate the violation and receives a value of 0
according to OAR 340-012-0145(6)(f),because there is insufficient information to make a
finding under paragraphs (6)(a)through(6)(e), or(6)(g).
"EB" is the approximate dollar value of the benefit gained and the costs avoided or delayed as a
result of the Respondent's noncompliance. It is designed to "level the playing field"by
taking away any economic advantage the entity gained and to deter potential violators from
deciding it is cheaper to violate and pay the penalty than to pay the costs of compliance. In
this case, `BB"receives a value of$0 as Respondent's economic benefit was de minimis.
Respondent could have prevented the violation by testing the integrity of its sodium
hypochlorite delivery system and bypassing it at minimal expense.
��l�;l� ;w_TC` L 'U,mL T( : Penalty=BP+ [(0.1 x BP)x(P+H+O+M+C)] +EB
=$3,000+ [(0.1 x$3,000)x (10+0+0+4+0)] +$0
=$3,000 + [$300 x 14] +$0
=$3,000+$4,200+$0
=$7,200
Case No. WQ/M-NWR-2017-113
Exhibit 3 Page 2
EXHIBIT 4
FINDINGS AND DETERMINATION OF RESPONDENT'S CIVIL PENALTY
PURSUANT TO OREGON ADMINISTRATIVE RULE (OAR) 340-012-0045
VIOLATION 4: Exceeding the permit's TSS effluent limits in violation of ORS
468B.025(2).
CLA 5 S I F I QAII QN: Exceedances of 50 percent or more of the limit are Class I violations
pursuant to OAR 340-012-0055(1)(k)(A).
MAGNITUDE: The magnitude of the violation is minor pursuant to OAR 340-012-
..........
0 13 5(2)(a)(C)(i) because Respondent's effluent was diluted by a
factor of 10 or more by the receiving stream.
CIVIL PENALTY FORMULA: 'the formula for determining the amount of penalty of each
...............................................................
violation is: BP + [(0.1 x BP)x (P+H+0+M+Q +EB
"BP" is the base penalty, which is $750 for a Class I,minor magnitude violation in the matrix
listed in OAR 340-012-0140(4)(b)(A)(iii) and applicable pursuant to OAR 340-012-
0 1 40(4)(a)(F)(i)because Respondent committed a water quality violation and operates a
municipal wastewater treatment facility with a permitted flow of less than two million
gallons per day.
f1P11 is whether Respondent has any prior significant actions, as defined in OAR 340-012-
0030(19), in the same media as the violation at issue that occurred at a facility owned or
operated by the same Respondent, and receives a value of 10 according to OAR 340-012-
0145(2)(a), because Respondent has prior significant actions totaling more than nine Class I
equivalent violations, stemming from Case Nos. WQ/M-NWR-13-139 and WQ/T\4-NWR-
2016-084.
"H" is Respondent's history of correcting prior significant actions and receives a value of 0
according to OAR 340-012-0145(3)(c), because there is insufficient information on which to
base a finding under paragraphs (3)(a) or(b).
"0" is whether the violation was repeated or ongoing and receives a value of 0 according to
OAR 340-012-0145(4)(e),because Respondent is being assessed separate penalties for
multiple occurrences of the violation.
"M" is the mental state of the Respondent and receives a value of 4 according to OAR 340-012-
0145(5)(c),because Respondent's conduct was negligent. Respondent has previously been
penalized for exceeding its TSS limits,yet has failed to take adequate action to maintain or
upgrade the system in order to prevent continuing violations, demonstrating a failure to
exercise reasonable care to avoid the foreseeable risk of committing the violation.
Case No. WQ/1\4-NWR-2017-113
Exhibit 4 Page 1
"C" is Respondent's efforts to correct or mitigate the violation and receives a value of 0
according to OAR 340-012-0145(6)(fl, because there is insufficient information-to make a
finding under paragraphs (6)(a)through(6)(e), or(6)(g).
"EB" is the approximate dollar value of the benefit gained and the costs avoided or delayed as a
result of the Respondent's noncompliance. It is designed to "level the playing field"by
taking away any economic advantage the entity gained and to deter potential violators from
deciding it is cheaper to violate and pay the penalty than to pay the costs of compliance. In
this case, "EB"receives a value of$0 as DEQ does not have sufficient information as to the
upgrades Respondent needs to make to its treatment system to arrive at a reasonable
estimate of costs avoided or delayed.
PENALTY CAU",MAIJON: Penalty=BP + [(0.1 x BP)x (P +H+ 0+M+Q +EB
.....................m�, 11 1,=�................................AIJO—
=$750+ [(0.1 x$750)x(10+0+0 +4 + 0)] + $0
= $750 + [$75 x 14] +$0
=$750+$1,050+$0
=$1,800
DEQ assesses civil penalties for two Class I occurrences of the violation for a total civil penalty of
$3,600.
Case No. WQ/M-NWR-2017-113
Exhibit 4 Page 2
EXHIBIT
FINDINGS AND DETERMINATION OF RESPONDENT'S CIVIL PENALTY
PURSUANT TO OREGON ADMINISTRATIVE RULE (OAR) 340-012-0045
VIOLATION 5: Exceeding the permit's BODS effluent limits in violation of ORS
............... ..........
468B.025(2).
CLASSIFICATION: This a Class I violation pursuant to OAR 340-012-0055(1)(k)(A) and
...................................
OAR 340-012-0145(4)(e).
MAGNITUDE: The magnitude of the violation is minor pursuant to OAR 340-012-
0 13 5(2)(a)(C)(i) because Respondent's effluent was diluted by a
factor of 10 or more by the receiving stream.
CIVIL PENALTY FORMULA: The formula for determining the amount of penalty of each
violation is: BP + [(0.1 x BP)x (P+H+0+M+Q +EB
"BP" is the base penalty, which is $750 for a Class 1,minor magnitude violation in the matrix
listed in OAR 340-012-0140(4)(b)(A)(iii) and applicable pursuant to OAR 340-012--
0140(4)(a)(F)(i),because Respondent committed a water quality violation and operates a
municipal wastewater treatment facility with a permitted flow of less than two million
gallons per day.
"tppti is whether Respondent has any prior significant actions, as defined in OAR 340-012-
0030(19), in the same media as the violation at issue that occurred at a facility owned or
operated by the same Respondent, and receives a value of 10 according to OAR 340-012-
0145(2)(a),
40-012-
0145(2)(a),because Respondent has prior significant actions totaling more than nine Class I
equivalent violations, stemming from Case Nos. WQ/M-NWR-13-13 9 and WQ/1\4-NWR-
2016-084.
"H" is Respondent's history of correcting prior significant actions and receives a value of 0
according to OAR 340-012-0145(3)(c),because there is insufficient information on which to
base a finding under paragraphs (3)(a) or(b).
"0" is whether the violation was repeated or ongoing and receives a value of 3 according to
OAR 340-012-0145(4)(c),because there were nine occurrences of the violation.
"M" is the mental state of the Respondent and receives a value of 4 according to OAR 340-012-
0145(5)(c),because Respondent was negligent. Respondent has previously been penalized
for exceeding its BODS limits, yet has failed to take adequate action to maintain or upgrade
the system in order to prevent continuing violations, demonstrating a failure to exercise
reasonable care to avoid the foreseeable risk of committing the violation.
Case No. WQ/M-NWR-2017-113
Exhibit 5 Page 1
"C" is Respondent's efforts to correct or mitigate the violation and receives a value of 0
according to OAR 340-012-0145(6)(f), because there is insufficient information to make a
finding under paragraphs (6)(a) through(6)(e), or (6)(g).
TB" is the approximate dollar value of the benefit gained and the costs avoided or delayed as a
result of the Respondent's noncompliance. It is designed to "level the playing field"by
taking away any economic advantage the entity gained and to deter potential violators from
deciding it is cheaper to violate and pay the penalty than to pay the costs of compliance. In
this case, "EB"receives a value of$0 as DEQ does not have sufficient information as to the
upgrades Respondent needs to make to its treatment system to arrive at a reasonable
estimate of costs avoided or delayed.
111N ALTY CALCU LATI(YN: Penalty=BP+ [(0.1 x BP) x(P +H+ 0+M+ Q] +EB
=$750 + [(0.1 x$750)x (10+ 0+3 +4+ 0)] + $0
$750 + [$75 x 17] +$0
$750+$1,275 +$0
$2,025
Case No. WQ/1\4-NWR-2017-113
Exhibit 5 Page 2
EXHIBIT
FINDINGS AND DETERMINATION OF RESPONDENT'S CIVIL PENALTY
PURSUANT TO OREGON ADMINISTRATIVE RULE (OAR) 340-012-0045
VIOLATION 6: Exceeding the permit's monthly average ammonia concentration
effluent limit in violation of ORS 468B.025(2).
CLASSIFICATION: This is a Class I violation pursuant to OAR 340-012-0055(1)(1).
MAGNITUDE: The magnitude of the violation is minor pursuant to OAR 340-012-
0 13 5(2)(a)(C)(ii)because the flow in the receiving stream at the time
of the discharge was two or more times greater than the flow rate
used to calculate the effluent limit.
CIVIL PENALTY FORMULA: The formula for determining the amount of penalty of each
violation is: BP + [(0.1 x BP)x (P+H+0 +M+C)l +EB
"BP" is the base penalty, which is $750 for a Class 1,minor magnitude violation in the matrix
listed in OAR 340-012-0140(4)(b)(A)(iii) and applicable pursuant to OAR 340-012-
0 1 40(4)(a)(F)(i),because Respondent committed a water quality violation and operates a
municipal wastewater treatment facility with a permitted flow of less than two million
gallons per day.
"f?q is whether Respondent has any prior significant actions, as defined in OAR 340-012-
0030(19), in the same media as the violation at issue that occurred at a facility owned or
operated by the same Respondent, and receives a value of 10 according to OAR 340-012-
0145(2)(a),
40-012-
0145(2)(a),because Respondent has prior significant actions totaling more than nine Class I
equivalent violations, stemming from Case Nos. WQ/1\4-NWR-13-13 9 and WQ/1\4-NWR-
2016-084.
"H" is Respondent's history of correcting prior significant actions and receives a value of 0
according to OAR 340-012-0145(3)(c), because there is insufficient information on which to
base a finding under paragraphs (3)(a) or(b).
"0" is whether the violation was repeated or ongoing and receives a value of 0 according to
OAR 340-012-0145(4)(a), because there was a single occurrence of the violation.
"M" is the mental state of the Respondent and receives a value of 4 according to OAR 340-012-
0145(5)(c),because Respondent was negligent. Respondent has previously been penalized
for exceeding an ammonia limit, yet has failed to take adequate action to maintain or
upgrade the system in order to prevent continuing violations, demonstrating a failure to
exercise reasonable care to avoid the foreseeable risk of committing the violation.
Case No. WQIM-NWR-2017-113
Exhibit 6 Page 1
"C" is Respondent's efforts to correct or mitigate the violation and receives a value of 0
according to OAR 340-012-0145(6)(fl, because there is insufficient information to make a
finding under paragraphs (6)(a)through(6)(e), or(6)(g).
TB" is the approximate dollar value of the benefit gained and the costs avoided or delayed as a
result of the Respondent's noncompliance. It is designed to "level the playing field"by
taking away any economic advantage the entity gained and to deter potential violators from
deciding it is cheaper to violate and pay the penalty than to pay the costs of compliance. In
this case, "EB"receives a value of$0 as DEQ does not have sufficient information as to the
upgrades Respondent needs to make to its treatment system to arrive at a reasonable
estimate of costs avoided or delayed.
IT 1.. CALCIAIATION: Penalty=BP + [(0.1 x BP)x (P +H+ 0+M+Q +EB
........... -------
= $750+ [(0.1 x$750)x(10+0+0+4 + 0)] + $0
=$750+ [$75 x 14] +$0
=$750+$1,050 +$0
=$1,800
Case No. WQ/T\4-NWR-2017-113
Exhibit 6 Page 2
EXHIBIT 7
FINDINGS AND DETERMINATION OF RESPONDENT'S CIVIL PENALTY
PURSUANT TO OREGON ADMINISTRATIVE RULE (OAR) 340-012-0045
VIOLATION 7: Causing pollution of waters of the state in violation of ORS
468B.025(1)(a).
CLASSIFICATION: This is a Class I violation pursuant to OAR 340-012-0055(1)(a).
MAGNITUDE: The magnitude of the violation is moderate pursuant to OAR 340-
012-0130(l), as there is no selected magnitude specified in OAR
340-012-0135 applicable to this violation, and the information
reasonably available to DEQ does not indicate a minor or major
magnitude.
CIVIL„PENALTY FORMULA: The formula for determining the amount of penalty of each
violation is: BP+ [(0.1 x BP)x(P+H+O+M+C)] +EB
"BP" is the base penalty,which is $1,500 for a Class 1,moderate magnitude violation in the
matrix listed in OAR 340-012-0140(4)(b)(A)(ii) and applicable pursuant to OAR 340-012-
0140(4)(a)(F)(i).
"P" is whether Respondent has any prior significant actions, as defined in OAR 340-012-
0030(19), in the same media as the violation at issue that occurred at a facility owned or
operated by the same Respondent, and receives a value of 10 according to OAR 340-012-
0145(2)(a),because Respondent has prior significant actions totaling more than nine Class I
equivalent violations, stemming from Case Nos. WQ/M-NWR-13-13 9 and WQ/M-NWR-
2016-084.
"H" is Respondent's history of correcting prior significant actions and receives a value of 0
according to OAR 340-012-0145(3)(c),because there is insufficient information on which to
base a finding under paragraphs (3)(a) or (b).
"O" is whether the violation was repeated or ongoing and receives a value of 3 according to
OAR 340-012-0145(4)(c),because there were 12 occurrences of the violation.
"M" is the mental state of the Respondent and receives a value of 2 according to OAR 340-012-
0145(5)(b), as Respondent had constructive knowledge (reasonably should have known) of
the requirement. The seasonal discharge prohibition is an express condition of
Respondent's permit.
"C" is Respondent's efforts to correct or mitigate the violation and receives a value of 0
according to OAR 340-012-0145(6)(f),because there is insufficient information to make a
finding under paragraphs (6)(a)through(6)(e), or(6)(g).
Case No. WQ/M-NWR-2017-113
Exhibit 7 Page 1
"EB" is the approximate dollar value of the benefit gained and the costs avoided or delayed as a
result of the Respondent's noncompliance. It is designed to "level the playing field"by
taking away any economic advantage the entity gained and to deter potential violators from
deciding it is cheaper to violate and pay the penalty than to pay the costs of compliance. In
this case, "EB"receives a value of$0. Respondent needs to develop additional measures to
manage its wastewater during the seasonal discharge prohibition. There are several
alternatives for such measures and DEQ is therefore unable to arrive at reasonable estimate
of the avoided cost of ensuring compliance.
HjN..A-1.TY CALCULATION: Penalty=BP + [(0.1 x BP) x (P +H+ 0+M+Q] +EB
=$1,500+ [(0.1 x$1,500)x(10+0 + 3 +4 + 0)] + $0
=$1,500+ [$150 x 17] +$0
=$1,500+$2,550+$0
=$4,050
Case No. WQ/M-NWR-2017-113
Exhibit 7 Page 2
EXHIBIT 8
FINDINGS AND DETERMINATION OF RESPONDENT'S CIVIL PENALTY
PURSUANT TO OREGON ADMINISTRATIVE RULE (OAR) 340-012-0045
VIOLATION 8: Discharging wastes that reduce the quality of state waters below a
VIOLATION ..........
water quality standard established by the Environmental Quality
Commission in violation of ORS 468B.025(1)(b).
CLASSIFICATION:ON: This is a Class I violation pursuant to OAR 340-012-0055(1)(b).
MAGNITUDE: The magnitude of the violation is moderate pursuant to OAR 340-
012-0130(1), as there is no selected magnitude specified in OAR
340-012-0135 applicable to this violation, and the information
reasonably available to DEQ does not indicate a minor or major
magnitude.
CIVIL PENALTY FORMULA: The formula for determining the amount of penalty of each
...........
violation is: BP + [(0.1 x BP)x (P+H+ 0+M+C)] +EB
"BP" is the base penalty, which is $1,500 for a Class I, moderate magnitude violation in the
matrix listed in OAR 340-012-0140(4)(b)(A)(ii) and applicable pursuant to OAR 340-012-
0 1 40(4)(a)(F)(i), because Respondent committed a water quality violation and operates a
municipal wastewater treatment facility with a permitted flow of less than two million
gallons per day.
f"P"" is whether Respondent has any prior significant actions, as defined in OAR 340-012-
0030(19), in the same media as the violation at issue that occurred at a facility owned or
operated by the same Respondent, and receives a value of 10 according to OAR 340-012-
0145(2)(x),
40-012-
0145(2)(a),because Respondent has prior significant actions totaling more than nine Class I
equivalent violations, stemming from Case Nos. WQ/1\4-NWR-13-13 9 and WQ/M-NWR-
2016-084.
"H" is Respondent's history of correcting prior significant actions and receives a value of 0
according to OAR 340-012-0145(3)(c), because there is insufficient information on which to
base a finding under paragraphs (3)(a) or (b).
"0" is whether the violation was repeated or ongoing and receives a value of 0 according to
OAR 340-012-0145(4)(a),because there was one occurrence of the violation.
"M" is the mental state of the Respondent and receives a value of 4 according to OAR 340-012-
0145(5)(c), as the violation resulted from Respondent's negligent conduct. The pump
station overflow occurred as a result of either faulty operation or design of the pump station
controls. Alarms that should have notified Respondent of the risk of overflow failed to
engage.
Case No. WQ/M-NWR-2017-113
Exhibit 8 Page 1
"C" is Respondent's efforts to correct or mitigate the violation and receives a value of 0
according to OAR 340-012-0145(6)(fl,because there is insufficient information to make a
finding under paragraphs (6)(a)through(6)(e), or (6)(g).
"EB" is the approximate dollar value of the benefit gained and the costs avoided or delayed as a
result of the Respondent's noncompliance. It is designed to "level the playing field"by
taking away any economic advantage the entity gained and to deter potential violators from
deciding it is cheaper to violate and pay the penalty than to pay the costs of compliance. In
this case, "EB"receives a value of$0 as DEQ has insufficient information to arrive at a
reasonable estimate of the cost of measures to prevent the violation.
PENALTY CALC..U...LM JON: Penalty=BP+ [(0.1 x BP) x (P +H+ 0+M+C)j +EB
................ 1.11,11,111,11111,.......
$1,500+ [(0.1 x$1,500)x (10+0 +0 +4 + 0)] + $0
$1,500+ [$150 x 14] +$0
$1,500+$2,100+$0
$3,600
Case No. WQ/M-NVTR-2017-113
Exhibit 8 Page 2