~€O S% ~ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION IX PACIFIC SOUTHWEST REGION 75 Hawthorne Street San Francisco, CA 94105-3901 _____ — APR 182018 VIA CERTIFIED MAIL RETURN RECEIPT REOUESTED In Reply Refer To: ENF 3-1 Ms. Barbara Parker, City Attorney CityofOakland th One Frank Ogawa Plaza, 6 Floor Oakland, CA 94612 Re: 7016 1370 0000 0749 1002 Demand for Stipulated Penalties Pursuant to the Consent Decree in US. et a!. v. EBMUD et a!. Case Nos. 3:09 cv-00186-RS and 3:09-cv-05684-RS (N.D. Cal.) and Requirement for Information Ms. Parker: Pursuant to Section XX of the above-referenced Consent Decree, the United States Environmental Protection Agency (U.S. EPA) and the California Regional Water Quality Control Board, San Francisco Bay Region (Regional Water Board) are jointly making this demand for $226,500 in stipulated penalties to the City of Oakland (City) for violations of the Consent Decree, as outlined below. U.S. EPA and the Regional Water Board also require the City to provide additional information that is necessary to evaluate Consent Decree compliance by May 18, 2018, as described below. Sanitary Sewer Overflows to Waters of the United States Pursuant to Paragraph 186 of the Consent Decree, the City is subject to $200 in stipulated penalties for each sanitary sewer overflow (SSO) to reach waters of the United States that is less than 1,000 gallons; $1,000 for each SSO between 1,000 to 9,999 gallons; and $25,000 for each SSO greater than or equal to 10,000 gallons. Between September 22, 2014, and June 30, 2017, the City had 34 SSOs reach waters of the United States: 12 less than 1,000 gallons; 15 between 1,000 to 9,999 gallons; and 7 greater than or equal to 10,000 gallons. The City is subject to $192,400 in stipulated penalties for these violations, as summarized in Table 1, below. Table 1. Sanitary Sewer Overflows to Waters of the United States Date Volume Reported to Stipulated Penalty CIWQS (gallons) 10/25/2014 1,100 $1,000 11/9/2014 1,200 $1,000 11/28/2014 1,730 $1,000 12/11/2014 36,000 $25,000 12/11/2014 450 $200 12/13/2014 550 $200 12/29/2014 1,000 $1,000 12/30/2014 20,160 $25,000 Volume Reported to CIWQS (gallons) Stipulated Penalty ~__________________________ Date 1/17/2015 1,500 $1,000 1/28/2015 1,800 $1,000 2/8/2015 720 $200 2/22/2015 500 $200 4/11/2015 3,220 $1,000 4/27/2015 1,700 $1,000 6/27/20 15 900 $200 7/25/2015 1/18/2016 2/3/2016 9/12/2016 10/30/2016 11/1/2016 11/6/2016 11/20/2016 12/11/2016 1/10/2017 1/10/2017 1/10/2017 1/10/2017 1/11/2017 1/15/2017 1/27/2017 1/31/2017 2/8/2017 3/20/2017 30 $200 800 750 1,500 900 210 40 100 6,000 6,000 3,300 47,000 39,000 13,500 6,510 1,500 4,500 36,000 37,500 $200 $200 $1,000 $200 $200 $200 $200 $1,000 $1,000 $1,000 $25,000 $25,000 $25,000 $1,000 $1,000 $1,000 $25,000 $25,000 Failure to Notify Affected Owners of Defective Sewer Laterals Within 90 Days Paragraph 85.a. of the Consent Decree requires the City to notify the affected owner in writing within 90 days of identifying a sewer lateral as defective. Pursuant to Paragraph 1 90.n. of the Consent Decree, the City is subject to a $1 00-per-dày stipulated penalty for each day that it delays the notification after 90 days, increasing to $200 per day after 180 days of delay. Between September 22, 2014, and June 30, 2017, the City failed to send at least 41 notices within 90 days and did not send at least 12 notices, as shown in Table 2, below. The City is subject to stipulated penalties for these violations of the Consent Decree; however, U.S. EPA and the Regional Water Board do not have sufficient information to determine the stipulated penalty amounts. U.S. EPA and the Regional Water Board are requiring the City to provide the date of identification, date of repair, and date the affected owner was first notified in writing, as described below. 2 Table 2. Defective Sewer Lateral Notifications Fiscal Defective Sewer Notices Sent or Repairs Year Laterals Identified Made Within 90 Days 2014-2015 Unknown [ii Unknown 2015-2016 62 16 2016-2017 47 40 Notices Sent Beyond 90 Days Notices Not Sent Unknown Unknown 36 5 10 2 Footnote: [11 In its fiscal year 2014-2015 report, the City reported that 48 defective sewer laterals were identified in the text of the report, but that 11 defective sewer laterals were identified in Table 4-11 of the report. Failure to Repair Acute Defects Within One Year Paragraph 91 of the Consent Decree requires the City to repair acute defects as soon as possible, but no later than within one year of identification. Pursuant to Paragraph 1 90.n. of the Consent Decree, the City is subject to a $1 00-per-day stipulated penalty for each day that it delays the completion of repairs after 365 days, increasing to $200 per day after 180 days of delay. Between September 22, 2014, and June 30, 2017, the City failed to repair at least seven acute defects within one year. The City is subject to $34,100 in stipulated penalties for these violations, as summarized in Table 3, below. The City may be subject to additional stipulated penalties for any additional acute defects that were not repaired within one year of identification. The City identified seven additional acute defects in its annual reports that could potentially be subject to stipulated penalties, as shown in Table 4, below. U.S. EPA and the Regional Water Board are requiring the City to provide the repair dates for these acute defects, as described below. Table 3. Acute Defects Not Repaired Within One Year of Identification Asset ID Date Date Days to Days to Repair Identified Completed Repair Beyond 365 Days SEPi5258 10/14/2014 10/15/2015 366 1 SEPi3O13 1/27/2015 1/29/2016 367 2 SEPi519O 3/10/2015 3/16/2016 372 7 SEPi18293 3/13/2015 3/22/2016 375 10 SEP11558 2/3/2016 8/9/2017 553 188 SEP115291 5/9/2016 7/25/2017 442 77 SEP122619 5/13/2016 [1] 413 48 Stipulated Penalty $100 $200 $700 $1,000 $19,600 $7,700 $4,800 Footnote: [11 Total days calculated through June 30, 2017, the end of fiscal year 2016-2017. The City may be subject to additional stipulated penalties for days of delay beyond 48 days. 3 Table 4. Acute Defects with Unknown Repair Completion Dates Asset ID Date Date Days to Days to Repair Identified Completed Repair Beyond 365 Days - SEPi11537 SEPi21908 SEPi6346 SEPi6452 SEPi7O39 SEP131522 SEP122619 11/19/2014 12/13/2014 1/29/2015 4/9/2015 4/29/2015 3/29/2016 5/13/2016 Stipulated Penalty - - - - - - - - - - - - - - - - - - - - - - - - - - - - Requirement for Information The City shall provide the following required information to U.S. EPA and the Regional Water Board by May 18, 2018: 1. Repair dates for the identified acute defects listed in Table 4; and 2. For all sewer laterals identifiedas defective between September 22, 2014, and June 30, 2017, the date of identification, date of repair, and date the affected owner was first notified in writing. Conclusion The City shall pay $113,250 (50% of the penalty) to the Regional Water Board and $113,250 (50% of the penalty) to U.S. EPA within 120 days of receiving this letter. The City shall make the payments in accordance with Paragraphs 192 through 194 of the Consent Decree. The Regional Water Board is entitled to recover its attorney’s fees for enforcing the Consent Decree, but it will waive those fees for these stipulated penalties provided the full amount is paid within the required 120 days. If you have any questions regarding this demand for stipulated penalties, please have counsel contact Melanie Shepherdson in EPA’s Office of Regional Counsel, at Shepherdson.Melanie@epa.gov or (415) 972-3923. Please direct technical questions to Michael Weiss at (415) 947-4570 or Weiss.MichaeI~epa.gov. Sincerely, Kathleen H. Johnson Director, Enforcement Division EPA Region 9 ,~ ~ //~ Digitally signed by Bruce H. Wolfe Date:2018.04.13 14:48:58 -OTOO’ Bruce H. Wolfe Executive Officer California Regional Water Quality Control Board, San Francisco Bay Region cc (via email): Ken Greenberg, EPA Region 9 Michael Weiss, EPA Region 9 Melanie Shepherdson, EPA Region 9 Carol King, EPA HQ Patricia Hurst, U.S. Department of Justice Robert Schlipf, Regional Water Board Jessica Watkins, Regional Water Board Marnie Ajello, Regional Water Board Daniel Harris, California Department of Justice Erin Smith, City of Alameda Janet Kern, City of Alameda Stephanie Garrabrant-Sierra, City of Alameda Robert Haun, City of Alameda Mark Hurley, City of Albany Craig Labadie, City of Albany Zach Cowan, City of Berkeley Kenneth Emeziem, City of Berkeley Andrew Cough, City of Emeryville Keely Nelson, City of Emeryville Michael Biddle, City of Emeryville Marilee Allan, Bingham McClutchen LLP Ms. Celso Dolores Ortiz, Deputy City Attorney Brooke Leviñ, City of Oakland Mark Obergfell, City of Piedmont Michelle Marchetta Kenyon, Burke, Williams & Sorensen LLP Doug Humphrey, CDAG Facilitator Paul Benoit, City of Piedmont Chester Nakahara, City of Piedmont Rex Delizo, Stege Sanitation District Paul Soo, Stege Sanitary District Kenton Alm, Meyers, Nave, Riback, Silver & Wilson Nicole Sasaki, San Francisco Baykeeper Christopher Sproul, Environmental Advocates Eileen White, East Bay Municipal Utility District Chris Dinsmore, East Bay Municipal Utility District Kristina Zuniga, East Bay Municipal Utility District Jonathan Salmon, East Bay Municipal Utility District Brian Haughton, Barg Coffin Lewis & Trapp, LLP 5