SITE INFORMATION AND CORRESPONDENCE

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ADMINISTRATIVE CIVIL LIABILITY COMPLAINT NO.R5-2004-0534 -6- MUSCO FAMILY OLIVE COMPANY AND THE STUDLEY COMPANY SAN JOAQUIN COUNTY ensure compliance with the MRP. The Discharger's 14 May 2002 response to the NOV disputed several SMR deficiencies identified in the NOV,but indicated it would retain by June 2002 a qualified consultant for sample collection, laboratory analysis, and data presentation. A Regional Board letter dated 6 August 2002 to the Discharger's attorney identified the potential penalty resulting from TSO violations at that point as over$1.4 million, and stated the majority of the penalty was due to incomplete SMRs. While SMR deficiencies decreased after June 2002, SMRs remained incomplete largely due to recurring and long-lasting monitoring equipment malfunctions (June, July, August, September, October 2002; January, February,March, June, July, August, and October 2003), as well as insufficient staffing to conduct weekend monitoring (October 2002 through May 2004). Though staff met with the Discharger's representative and went over reporting requirements in detail, after site responsibility was transferred from the Sacramento to the Fresno office over a year elapsed with Musco still submitting incomplete SMRs before omissions were again brought to its attention. The Discharger and staff met again specifically to discuss the incomplete SMRs on 9 February 2004. Fresno staff advised the Discharger that SMR deficiencies perceived by Musco as minor were nevertheless a violation of WDRs Order No. R5-2002-0148 (Provision G.3) and,by extension, TSO R5-2002-0014-ROI. Musco received further written notification of its ongoing SMR deficiencies on 1 March 2004. Task 1 violations after 1 March 2004 were due, in part, to failure to conduct daily monitoring ofponded wastewater (i.e.,hydrogen sulfide and dissolved oxygen content and available freeboard) on weekends in March 2004. Musco is required to submit substantial data in its SMRs. Weekend monitoring data is a relatively small part of the overall requirement, but nonetheless serves a purpose. As Musco was consistently in noncompliance during the week with DO below the minimum 2 mg/L required by WDRs, the weekend monitoring did not prove critical in determining whether Musco was consistently in compliance. It is appropriate and reasonable not to impose a penalty for Task 1 violations that occurred from 1 September 2002 to 1 March 2004, and to reduce the penalty during the remainder of the period, in part, for failure to conduct weekend monitoring to account for the relatively low gravity of the omitted information compared to the information that Musco did submit. For these reasons, the maximum penalty of$2,057,500 specified under terms of the TSO is reduced to a penalty of$380,000. b. Task 5 requires compliance with an effluent limit for DIS, the inorganic fraction of total dissolved solids (TDS). WDRs R5-2002-0148 replaced the effluent DIS limit for limits on TDS (2,047 mg/L), sodium (597 mg/L), and chloride (601 mg/L). In its adoption of C&A Order No. R5-2002-0149, the Regional Board acknowledged the Discharger's inability to immediately comply with effluent TDS and sodium limits and established higher interim limits for TDS and sodium along with a time schedule for a phased reduction to limits in WDRs R5-2002-0148. It is not reasonable to impose the prescribed TSO penalty for an exceedance of the effluent limitation in Task 5 that did not also exceed the greater limitation in C&A Order No. R5-2002-0149 for TDS or sodium, or the limitation for chloride in WDRs R5-2002-0148. Eight of the 12 exceedances of the effluent limitation in Task 5 also exceeded the revised limitations in C&A Order No. R5-2002-0149 (seven TDS limit