HomeMy WebLinkAboutCalifornia Regional Water Quality Control Board 2017-06-07CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD
NORTH COAST REGION
In the matter of:
City of Ukiah Public Works Dept.
Complaint No. R1-2017-0030 for
Administrative Civil Liability
WDID No. 1B840290MEN
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NPDES Permit No. CA0022888 )
Section 1: Introduction
Order R1-2018-0024 Proposed
SETTLEMENT AGREEMENT AND
STIPULATION FOR ENTRY OF
ADMINISTRATIVE CIVIL LIABILITY ORDER
This Settlement Agreement and Stipulation for Entry of Administrative Civil Liability Order
(Order or Stipulated Order) is entered into by and between the Assistant Executive Officer
of the Regional Water Quality Control Board, North Coast Region (Regional Water Board),
on behalf of the Regional Water Board Prosecution Team (Prosecution Team) and the City
of Ukiah (Discharger) (collectively Parties) and is presented to the Regional Water Board
for adoption as an Order, by settlement, pursuant to Government Code section 11415.60.
This Stipulated Order is in reference to an adjudicative proceeding initiated by the issuance
of Administrative Civil Liability (ACL) Complaint No. R1-2017-0030 (Complaint), dated
June 7, 2017, to the Discharger.
Section 1I: Recitals
1. The Discharger owns and operates the Ukiah WWTP located at 300 Plant Road, Ukiah,
California in Mendocino County. The WWTP serves 15,000 residential, commercial, and
institutional users in the City of Ukiah and 5,000 residential users served by the Ukiah
Valley Sanitation District. Disinfected, tertiary treated wastewater can be discharged to
the Russian River, a water of the United States, as needed during winter months
(October 1 to May 14). Year-round, disinfected secondary wastewater is discharged to
percolation ponds adjacent to the Russian River. The Russian River is also a water of
the state.
2. The Regional Water Board adopted WDRs Order No. R1-2012-0068, National Pollution
Discharge Elimination System (NPDES) Permit No. CA0022888, on August 23, 2012, to
regulate discharges from the WWTP which became effective on October 1, 2012.
3. The Regional Water Board adopted Cease and Desist Order (CDO) No. R1-2012-0069 on
August 23, 2012, concurrently with WDRs Order No. R1-2012-0068, requiring the
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Order R1-2018-0024
Stipulated Administrative Civil Liability Order
City of Ukiah WWII'
Discharger to take action and comply with effluent limitations. CDO No. R1-2012-0069
contains interim effluent limits for ammonia and nitrate, and includes a compliance
schedule for the Discharger to comply with final effluent limits for ammonia and nitrate
by August 1, 2017.
4. On June 7, 2017, the Prosecution Team issued the Complaint to the Discharger. The
Complaint alleged the following:
a) The Discharger's self-monitoring reports showed three (3) effluent limit violations
of WDRs Order No. R1-2012-0068 occurring on March 18, 27, and 31, 2015, which
were not previously resolved by previously issued Settlement and Stipulation
Administrative Civil Liability Order No. R1-2015-0069 covering violations which
occurred during the period from February 1, 2012 to May 31, 2014. Of the three
violations, one is subject to mandatory minimum penalties (MMPs) as a serious
violation and two meet the interim effluent limits contained in CDO No. R1-2012-
0069 and are exempt from penalties.
b) The Discharger's self-monitoring reports showed thirty-seven (37) effluent limit
violations of WDRs Order No. R1-2012-0068 from June 1, 2015 (end of period
included in Stipulation Order No. R1-2015-0069) to January 31, 2017,
(Compliance Period), of which ten (10) are subject to MMPs as serious violations
and twenty-seven (27) are exempt for meeting the CDO interim limits.
5. This Stipulated Order addresses eleven (11) violations that are subject to MMPs, as
described in paragraph 4, above, and the corresponding total administrative civil
liability amount assessed for the effluent violations is $33,000.
6. The Parties have engaged in settlement negotiations and agree to settle the matter
without administrative or civil litigation and by presenting this Stipulated Order to the
Regional Water Board for adoption as an Order pursuant to Government Code section
11415.60. To resolve by consent and without further administrative proceedings all
alleged violations of Water Code section 13385 set forth in the Complaint, the Parties
have agreed to the imposition of administrative civil liability in the amount of thirty-
three thousand dollars ($33,000) in MMPs against the Discharger. The Parties have
further agreed that the Discharger will apply all of these penalties toward the cost to
complete a Supplemental Environmental Project (SEP), in accordance with the terms of
this Stipulated Order.
7. The resolution of the alleged violations is fair and reasonable and fulfills its
enforcement objectives and meets the requirements under Water Code section 13385,
subdivisions (h) and (i), and the State Water Resources Control Board's Water Quality
Enforcement Policy (Enforcement Policy), so that no further action is warranted
concerning the specific violations alleged in the Complaint except as provided in this
Stipulated Order, and that this Order is in the best interest of the public.
Order R1-2018-0024
Stipulated Administrative Civil Liability Order
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8. Pursuant to Water Code section 13385, subdivision (1), the Regional Water Board may,
in lieu of assessing a portion of MMPs pursuant to Water Code section 13385,
subdivisions (h) and (i), allow a publicly owned treatment works to spend a portion of
MMPs towards the completion of an SEP proposed by the publicly owned treatment
works. The SEP must conform to the requirements specified in the State Water
Resources Control Board's (State Water Board) Enforcement Policy (Enforcement
Policy), Section IX.
9. On November 17, 2009, the State Water Board adopted Resolution No. 2009-0083
amending the Enforcement Policy. The Enforcement Policy was approved by the Office
of Administrative Law and became effective on May 20, 2010.
10. On January 4, 2018, the Director of the Office of Enforcement (OE Director) determined
there was a compelling justification to allow the Discharger's proposed SEP in excess
of 50% of an ACL. (See Attachment C) As a result of these findings, the Discharger is
authorized to put the total amount of the ACL imposed under this Stipulated Order
toward the proposed SEP.
Section 11I: Stipulations
The Parties stipulate to the following:
11. Jurisdiction: The Regional Water Board has subject matter jurisdiction over the
matters alleged in this action and personal jurisdiction over the Parties to this
Stipulated Order.
12. Administrative Civil Liability: The Discharger is subject to administrative civil
liability in the amount of thirty-three thousand dollars ($33,000) in MMPs. This entire
amount will be suspended (suspended liability) pending completion of an SEP, as set
forth herein and described in Attachment B and incorporated by this reference.
13. SEP Description: The proposed SEP will be carried out by the San Francisco Estuary
Institute (SFEI), on behalf of the Discharger. The SEP is intended to support the City of
Ukiah's Storm Water Resource Management and Habitat Protection and Restoration,
and will be conducted in two phases. Under the first phase, SFEI will use its
proprietary tool GreenPlan-IT, to support the development of a map of potential high
priority green infrastructure (GI) project locations. SFE1 will use the GreenPlan-IT's
Site Locator Tool to identify and rank potential urban LID/GI project locations within
the City of Ukiah based on priorities set by a project workgroup comprised of
municipal separate storm water sewer systems (MS4) managers and other City
departments as warranted. Under the second phase, SFEI will use its proprietary tool
RipZET to help the City identify stream restoration opportunities.
Order 121-2018-01124
Stipulated Administrative Civil Liability Order
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14. SEP Milestone Requirements: The Discharger agrees that this Stipulated Order
includes the Milestone Requirements set forth below and presented in Attachment B.
The Discharger acknowledges that credit for completing any Milestone Requirement is
dependent on the Regional Water Board's or its delegate's adoption of this Stipulated
Order. The implementation schedule for completion of the SEP is as follows:
Milestone
Description
Completion Date
1
Hold project workgroup meeting to present the
project to Ukiah managers and other stakeholders,
identify relevant GIS datasets, and develop a list of
local priorities (these are the Site Locator Tool's
analysis parameters).
August 15, 2018
2
Submit first quarterly progress report, including
meeting materials from the first meeting (e.g.
agenda and presentation materials)
September 17, 2018
3
Hold second project workgroup meeting to present
first run of the Site Locator Tool results and the
results of the RipZET output.
November 30, 2018
4
Submit second quarterly progress report, including
meeting materials from the second workgroup
meeting, the RipSET memorandum, and GIS shape -
file output.
December 17 15, 2018
5
Submit memorandum describing the Site Locator
Tool methods, final input priorities (factors), and
analysis results that includes a heat -map of ranked
GI project locations and a list of those ranked
locations.
February 18, 2019
6
Submit third quarterly progress report, including
SFEI's final project report.
March 18, 2019
7
Submit Certification of Completion of SEP
April 29, 2019
15. The Costs: SFEI indicates that the project will cost $33,000 to complete. The amount
of the liability to be suspended upon completion of the SEP is $33,000 in MMPs, as
authorized by Water Code section 13385, subdivision (1), and the OE Director's
Order R1-2018-0024-
.Stipulated
1_-2018-0024.Stipulated Administrative Civil Liability Order
City of Ukiah WWT1'
.5.
Determination of Compelling Justification for City of Ukiah's Proposed Supplemental
Environmental Project in Excess of Fifty Percent of Administrative Civil Liability. No
additional liability above and beyond the $33,000 shall be suspended for costs incurred
to complete the SEP.
16. SEP Reports & Completion Date: The SEP shall be concluded by March 1, 2019 (SEP
Completion Date). The Discharger must submit quarterly reports to the Regional Water
Board as shown in the table above. A final report certifying the completion of the SEP
shall be provided to the Regional Water Board and the State Water Board's Division of
Financial Assistance by April 29, 2019, as described in paragraph 21.
17. Failure to Complete the SEP: Except as provided for in paragraph 24, if the SEP as
described in this Order is determined to be infeasible, or if the Discharger fails to
complete the SEP by the SEP Completion Date, the Regional Water Board will issue a
Notice of Violation (NOV). As a consequence, the Discharger shall be liable to pay the
State Water Pollution Cleanup and Abatement Account the Suspended Liability within
30 days of receipt of the NOV.
18. SEP Oversight: The Discharger will oversee implementation of the SEP by SFEI on its
behalf. Additional oversight will be provided by the Regional Water Board. The
Discharger is solely responsible for paying all reasonable oversight costs incurred by
the Regional Water Board to oversee the SEP. The SEP oversight costs are in addition to
the total administrative civil liability imposed against the Discharger and are not
credited toward the Discharger's obligation to implement and complete the SEP.
Reasonable oversight tasks to be performed by the Regional Water Board include but
are not limited to, reviewing and evaluating progress, reviewing the final report, and
verifying completion of the SEP.
19. Representation of the Discharger: As a material consideration for the Regional
Water Board's acceptance of this Stipulated Order, the Discharger represents that it will
use the funds to implement the project described in Paragraph 13 in accordance with
the implementation schedule set forth in Paragraph 14. The Discharger understands
that its obligation to implement the SEP, in its entirety and in accordance with the
schedule for implementation, is a material condition of this settlement of liability
between the Discharger and the Regional Water Board.
20. Representations and Agreements of the Discharger to Implement and Complete,
Report, and Guarantee Implementation of the SEP: As a material consideration for
the Regional Water Board's acceptance of this Stipulated Order, the Discharger
represents and agrees that (1) it will implement and complete the SEP as described in
this Stipulated Order; (2) it will provide certifications and written reports to the
Designated Regional Water Board Representative consistent with the terms of this
Stipulated Order detailing the implementation of the SEP; and (3) it will guarantee
implementation of the SEP identified in Paragraph 13 and Attachment B by remaining
Order 121-2018-0024 - h -
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liable for the suspended liability until the SEP is completed and accepted by the
Regional Water Board in accordance with the terms of this Order. The Discharger
agrees that the Regional Water Board has the right to require an audit of the funds
expended by it to implement the SEP.
21. Certification of Completion of SEP: On or before April 29, 2019, the Discharger shall
provide a certified statement of completion of the SEP (Certification). The Certification
shall be submitted by a responsible official under penalty of perjury under the laws of
the state of California, to Regional Water Board staff. The Certification shall include the
following:
a. Certification that the SEP has been completed in accordance with the terms of this
Stipulated Order. Such documentation may include plans, invoices, receipts,
certifications, and other materials reasonably necessary for the Regional Water
Board to evaluate the completion of the SEP and the costs incurred by the
Discharger.
b. Certification documenting the expenditures by the Discharger during the completion
period for the SEP. Expenditures may include, but are not limited to, payments to
outside consultants, vendors or contractors implementing the SEP. The Discharger
shall provide any additional information requested by the Regional Water Board
staff that is reasonably necessary to verify SEP expenditures.
c. Certification that the Discharger followed all applicable environmental laws and
regulations in the implementation of the SEP including but not limited to the
California Environmental Quality Act (CEQA), the Federal Clean Water Act, and the
Porter -Cologne Act.
22. Third Party Financial Audit of SEP: At the written request of Regional Water Board
staff, the Discharger, at its sole cost, shall submit a report prepared by an independent
third party(ies) acceptable to the Regional Water Board staff providing such
party's(ies') professional opinion that the Discharger has expended money in the
amounts claimed by the Discharger. The written request shall specify the reasons why
the audit is being requested. The audit report shall be provided to Regional Water
Board staff within three (3) months of notice from Regional Water Board staff to the
Discharger of the need for an independent third party audit. The audit need not
address any costs incurred by the Regional Water Board for oversight.
23. Failure to Expend the Entire Suspended Liability on the Approved SEP: In the
event that the Discharger is not able to demonstrate to the reasonable satisfaction of
the Regional Water Board staff that the entire suspended liability of $33,000 has been
spent for the completed SEP, the Discharger shall pay the difference between the
suspended liability of $33,000 and the amount the Discharger can demonstrate was
actually spent on the SEP, as administrative civil liability. The Discharger shall be liable
Order 121-2018-0024
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to pay the State Water Board Cleanup and Abatement Account the additional
administrative civil liability within 30 days of receipt of notice of the Regional Water
Board staff's determination that the Discharger failed to demonstrate that the entire
SEP Amount was spent to complete the SEP.
24. Extension of the Implementation Schedule Deadlines: If given written justification
from the Discharger and the Regional Water Board staff determines that a delay in the
SEP implementation schedule is beyond the reasonable control of the Discharger, the
Executive Officer may revise the implementation schedule as appropriate. Written
justification must be received by the Designated Regional Water Board Representative
before the specific due date occurs, must describe circumstances causing the delay, and
must state when each task of the SEP will be completed. If any extension of the
implementation schedule is granted, the Regional Water Board staff shall provide the
Discharger a new implementation schedule in writing, which shall include the date the
SEP will be completed (Revised SEP Completion Date).
25. Completion of the SEP to the Regional Water Board Staffs Satisfaction: Upon the
Discharger's satisfaction of its SEP obligations under this Stipulated Order and
completion of the SEP and any audit requested by the Regional Water Board, Regional
Water Board staff shall send the Discharger a letter recognizing satisfactory completion
of its obligations under the SEP. Receipt of this letter shall terminate any further SEP
obligations of the Discharger and result in the permanent suspension of liability.
26. Compliance with Applicable Laws: The Discharger understands that payment of
administrative civil liability in accordance with the terms of this Order or compliance
with the terms of this Order is not a substitute for compliance with applicable laws, and
that continuing violations of the type alleged in the Complaint may subject it to further
enforcement, including additional administrative civil liability.
27. Effect of Stipulated Order: Except as expressly provided in this Stipulated Order,
nothing in this Stipulated Order is intended nor shall it be construed to preclude the
Prosecution Team or any state agency, department, board or entity or any local agency
from exercising its authority under any law, statute, or regulation.
28. No Waiver of Right to Enforce: The failure of the Prosecution Team or Regional Water
Board to enforce any provision of this Stipulated Order shall in no way be deemed a
waiver of such provision, or in any way affect the validity of this Stipulated Order. The
failure of the Prosecution Team or Regional Water Board to enforce any such provision
shall not preclude it from later enforcing the same or any other provision of this
Stipulated Order. No oral advice, guidance, suggestions or comments by employees or
officials of any Party regarding matters covered under this Stipulated Order shall be
construed to relieve any Party regarding matters covered in this Stipulated Order. The
Regional Water Board reserves all rights to take additional enforcement actions,
Order R1-2018-0024
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including without limitation the issuance of administrative civil liability complaints or
orders for violations other than those addressed by this Order.
29. Party Contacts for Communications related to Stipulation/Order:
For the Regional Water Board:
Diana Henrioulle
Water Resource Control Engineer
North Coast Regional Water Quality
Control Board
5550 Skylane Boulevard, Suite A
Santa Rosa, CA 95403
Diana. HenrioullePwaterboards.ca.gov
(707) 576-2350
For the Discharger:
Tim Eriksen
Director of Public Works,
City of Ukiah
300 Seminary Avenue
Ukiah, CA 95482
tericksen@cityofukiah.com
30. Attorney's Fees and Costs: Each Party shall bear all attorneys' fees and costs arising
from the Party's own counsel in connection with the matters set forth herein.
31. Public Notice: The Discharger understands that this Stipulated Order will be noticed
for a 30 -day public comment period prior to consideration by the Regional Water
Board. In the event objections are raised during the public comment period, the
Regional Water Board or the Executive Officer may, under certain circumstances,
require a public hearing regarding the Stipulation and Order. In that event, the Parties
agree to meet and confer concerning any such objections, and may agree to revise or
adjust the Stipulation and Order as necessary or advisable under the circumstances. If
the Regional Water Board Assistant Executive Officer or other Prosecution Team Staff
receives significant new information that reasonably affects the propriety of presenting
this Stipulated Order to the Regional Water Board for adoption, the Regional Water
Board Assistant Executive Officer may unilaterally declare this Stipulated Order void
and decide not to present the Order to the Regional Water Board. The Discharger
agrees that it may not rescind or otherwise withdraw its approval of this Stipulated
Order.
32. Addressing Objections Raised During Public Comment Period: The Parties agree
that the procedure contemplated for adopting the Order by the Regional Water Board
and review of this Stipulated Order by the public is lawful and adequate. In the event
procedural objections are raised prior to the Order becoming effective, the Parties
agree to meet and confer concerning any such objections, and may agree to revise or
adjust the procedure as necessary or advisable under the circumstances.
33. Interpretation: This Stipulated Order shall be construed as if the Parties prepared it
jointly. Any uncertainty or ambiguity shall not be interpreted against any one Party.
Order RI -2018-0024
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City ot'Ukiah WW'l'I'
C3
34. Modification: This Stipulated Order shall not be modified by any of the Parties by oral
representation made before or after its execution. All modifications must be in writing,
signed by all Parties, and approved by the Regional Water Board or its Executive Officer.
35. Integration: This Stipuluated Order constitutes the entire agreement between the
Parties and may not be amended or supplemented except as provided for in this Order.
36. If Order Does Not Take Effect: In the event that this Order does not take effect
because it is not approved by the Regional Water Board or is vacated in whole or in part
by the State Water Board or a court, the Parties acknowledge that they expect to
proceed to a contested evidentiary hearing before the Regional Water Board to
determine whether to assess administrative civil liabilities for the underlying alleged
violations, unless the Parties agree otherwise. The Parties agree that all oral and
written statements and agreements made during the course of settlement discussions
will not be admissible as evidence in the hearing. The Parties agree to waive any and all
objections based on settlement communications in this matter, including, but not
limited to:
a. Objections related to prejudice or bias of any of the Regional Water Board members
or their advisors and any other objections that are premised in whole or in part on
the fact that the Regional Water Board members or their advisors were exposed to
some of the material facts and the Parties' settlement positions as a consequence of
reviewing the Stipulated Order, and therefore may have formed impressions or
conclusions prior to any contested evidentiary hearing on the Complaint in this
matter; or
b. Laches or delay or other equitable defenses based on the time period for
administrative or judicial review to the extent this period has been extended by
these settlement proceedings.
37. Waiver of Hearing: The Discharger has been informed of the rights provided by Water
Code section 13323, subdivision (b), and hereby waives its right to a hearing before the
Regional Water Board prior to the adoption of the Order.
38. Waiver of Right to Petition: The Discharger hereby waives its right to petition the
Regional Water Board's adoption of the Order for review by the State Water Board, and
further waives its rights, if any, to appeal the same to a California superior court and/or
any California appellate level court.
39. Regional Water Board is Not Liable: Neither the Regional Water Board members nor
the Regional or State Water Board staff, attorneys, or representatives shall be liable for
any injury or damage to persons or property resulting from acts or omissions by the
Discharger its directors, officers, employees, agents, representatives or contractors in
Order R1-2018-0024 - 10 -
Stipulated Administrative Civil Liability Order
City of Ukiah WWTP
carrying out activities pursuant to this Stipulated Order nor shall the Regional Water
Board, its members or staff be held as parties to or guarantors of any contract entered
into by the Discharger, its directors, officers, employees, agents, representatives, or
contractors in carrying out activities pursuant to this Stipulated Order.
40. Covenant Not to Sue: Upon the effective date of this Stipulated Order, Discharger shall
and does release, discharge, and covenant not to sue or pursue any civil or
administrative claims against the Regional Water Board, including its officers, agents,
directors, employees, contractors, subcontractors, attorneys, representatives,
predecessors -in -interest, and successors, and assigns for any and all claims or causes of
action, of every kind and nature whatsoever, in law and equity, whether known or
unknown, suspected or unsuspected, foreseen or unforeseen, which arise out of or are
related to this action.
41. Necessity for Written Approvals: All approvals and decisions of the Regional Water
Board under the terms of this Order shall be communicated to the Discharger in
writing. No oral advice, guidance, suggestions, or comments by employees or officials of
the Regional Water Board regarding submissions or notices shall be construed to
relieve the Discharger of its obligation to obtain any final written approval required by
this Order.
42. Authority to Bind: Each person executing this Stipulated Order in a representative
capacity represents and warrants that he or she is authorized to execute this Stipulated
Order on behalf of and to bind the entity on whose behalf he or she executes the
Stipulated Order.
43. Severability: This Stipulated Order is severable; should any provision be found invalid
the remainder shall remain in full force and effect.
44. No Third Party Beneficiaries: This Stipulated Order is not intended to confer any
rights or obligations on any third party or parties, and no third party or parties shall
have any right of action under this Stipulated Order for any cause whatsoever.
45. Counterpart Signatures: This Stipulated Order may be executed and delivered in any
number of counterparts, each of which when executed and delivered shall be deemed to
be an original, but such counterparts shall together constitute one document. Further,
this Stipulated Order may be executed by facsimile or electronic signature, and any such
facsimile or electronic signature by any Party hereto shall be deemed to be an original
signature and shall be binding on such Party to the same extent as if such facsimile or
electronic signature were an original signature.
46. Effective Date: This Stipulated Order is effective and binding on the Parties upon the
entry of this Order by the Regional Water Board, which incorporates the terms of this
Stipulation.
Order R1-2018-0024
Stipulated Administrative Civil Liability Order
City of Ukiah WWTP
IT IS SO STIPULATED.
Date: 51/36 /
1:
California Regional Water Quality Control Board,
North Coast Region Prosecution Team
By:
Joshua Curtis
Assistant Executive 0
City of Ukiah P
ment
Findings of the Regional Water Board:
IT IS HEREBY ORDERED:
Eriksen
Director of Public Works
47. The Parties believe that settlement of this matter is in the best interest of the People of
the State. Therefore, to settle the Complaint and other effluent limit violations, the
Discharger hereby agrees to comply with the terms and conditions of this Order.
48. The Regional Water Board finds that the Recitals set forth herein in Section 11 of the
Stipulation are true.
49. This is an action to enforce the laws and regulations administered by the Regional
Water Board. The Regional Water Board finds that issuance of this Order is exempt
from the provisions of the California Environmental Quality Act (Public Resources Code,
sections 21000 et seq.), in accordance with section 15321, subdivision (a)(2), title 14, of
the California Code of Regulations.
50. The Executive Officer of the Regional Water Board is authorized to refer this matter
directly to the Attorney General for enforcement if the Discharger fails to perform any
of its obligations under the Order.
Order R1-2018-0024
Stipulated Administrative Civil Liability Order
City of Ukiah WWTP
-12-
51. Fulfillment of the Discharger's obligations under this Order constitutes full and final
satisfaction of any and all liability for the matters alleged in the Stipulation in
accordance with the terms of the Order.
Pursuant to Water Code section 13323 and Government Code section 11415.60, IT IS
HEREBY ORDERED on behalf of the California Regional Water Quality Control Board,
North Coast Region.
Matthias St. John
Executive Officer
Attachments: Attachment A Table of violations from Complaint
Attachment B SEP description
Attachment C Director of Office of Enforcement's Determination of
Compelling Justification for City of Ukiah's Proposed
Supplemental Environmental Project in Excess of Fifty
Percent of Administrative Civil Liability
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