December 13, 2018 Enforcement Committee Meeting Transcript

  1. Call to Order Chair Scharff called the meeting to order.
  2. Roll Call Ms. Klein called roll.
  3. Public Comment There was no public comment.
  4. Approval of Draft Minutes for November 8, 2018 Meeting MOTION:  Member Vasquez moved to approve the November 8, 2018 BCDC Enforcement Committee Meeting Minutes as presented.  Member Techel seconded.  Motion passed unanimously.
  5. Enforcement Strategy Ms. Klein previewed the agenda for the next Enforcement Committee meeting on February 21, 2019.
    1. Enforcement Attorney Karen Donovan will attend.  Staff will provide an overview of 2017 and 2018 program statistics.
    2. Staff will provide a summary of results of interviews with six sister agencies regarding their enforcement programs.
    3. A Public Hearing will be held regarding a recommended enforcement decision for dredging violations by the Salt River Construction Company.
    4. A briefing will be held regarding issues about Richardson’s Bay in Marin County.
    1. Enforcement Strategy Development Third Presentation

      Ms. Klein reviewed the six phases of the regulatory process:

      • Permit preparation
      • Permit issuance
      • Violation discovery
      • Violation cataloguing
      • Case selection
      • Case resolution

      She stated that at the October 2016 meeting, the committee directed staff to identify and resolve the worst violations to fix the gap in the violation selection phase, and also to address the backlog of open enforcement cases to fix the gap in case resolution.

      During the March 2017 meeting, staff presented the guidelines they had generated to prioritize enforcement cases enabling focused case selection.

      Today’s presentation will focus on case disposition, a violation discovery and cataloguing data management tool, and a range of options for backlog reduction.

      Ms. Klein stated that currently there are 262 open enforcement cases, of which 34 are active and 228 are inactive.  Staff has developed a guideline system for prioritizing each new enforcement report.  Based on an impact score, the cases are either high or low priority. 

      At the second strategy meeting, staff determined that there are currently 40 priority cases, of which 16 are active and 24 are inactive.  Staff does not have the capacity to work on all of them at the same time, though it is the goal to resolve all as soon as possible.

      Staff is currently working on 18 of 222 low priority cases, rendering 204 inactive.  The 18 active cases were chosen because they were active before the prioritization guideline was established, or because the permittee is pursuing a permit amendment, making it efficient to work with them to resolve their enforcement action at the same time.  Another reason is for staff to coordinate with another agency.

      Staff had prepared two histograms showing the priority distribution of the cases; Ms. Klein explained the “impact score” distribution.

      She explained impact scoring, which occurs at the case intake phase and is based on an initial report of a physical violation.  Until staff has a permit compliance program, the scope of most violations will be greater than the single issue identified by the initial report.

      In the shoreline band, the initial report often involves the absence of required public access improvement.  In the Bay, the initial report may involve dredging beyond the boundaries of the authorized footprint or an observed construction activity.

      This year staff has created an “effort” score:  a second lens through which high priority cases are sorted.  Four criteria predict the level of effort needed to resolve a case:

      • Permittee responsiveness (35%)
      • Anticipated complexity of the enforcement mechanism (35%)
      • Staff familiarity with the circumstances (15%)
      • External agency involvement (15%)

      Member Techel asked about the first criteria.  Ms. Klein explained that the impact score reflects the percepted impact when staff is conducting a score – either in the Bay or to public access there is a higher number.  High responsiveness facilitates faster resolution with less staff time.

      Chair Scharff commented that the Enforcement Committee needs to ensure that it has the right incentives in place.  If you work with BCDC and are responsive, it should be a positive; if you are difficult, it should not be a positive.  Ms. Klein agreed.

      Ms. Klein explained a table plotting the impact of high effort versus low effort.  This approach provides a systematic guideline for selecting which of the 40 highest priority cases to activate and resolve first, and which to defer.

      Member Vasquez asked the ages of the cases.  Ms. Klein answered that there is a case from 1990 with the federal government; there is one from 1999 and a few from the 2000s.  Staff currently do not have their priorities fully available.  Member Vasquez observed that staff almost needs to have two efforts:  working on the high priorities and working on the little cases so that they do not accumulate.  He noted that the Enforcement Committee is not here just to regulate, but also to help the permittee become compliant.  Having annual, biannual, etc. follow-up inspections could be helpful in resolving issues before they have to come before the Enforcement Committee.

      Member Gilmore asked how many new enforcement cases we get per year.  Since we have this huge backlog, would it be more efficient to do the higher-impact/lower-effort cases first, then the lower-impact/lower-effort cases, then the higher-impact/higher effort cases?  Ms. Klein answered that during the past decade we have had 50-60 new cases per year.  The number of new reports has increased lately.  Member Gilmore and Chair Scharff expressed a preference for clearing the lower-effort cases – that seems to be where the most cases are distributed.

      Member Techel asked how many of the enforcement cases are complaint-driven.  Ms. Klein felt that the majority of reports are complaint-driven from the public.  People out on the Bay Trail notice a trash problem, broken benches, missing public shore parking signs, and so on.  Reports from single-family residential neighborhoods may not be valid for BCDC. 

      Member Techel asked if an influential person who complains gets a higher priority.  BCDC Executive Director Larry Goldzband answered that if a City Council member, for example, called BCDC, the call would be returned ASAP.  It is more than likely that if a public official called BCDC with a question about something they saw, BCDC could probably answer quickly because the answer would be obvious.
      Member Techel asked if the names of the cases by category could be listed.  Mr. Zeppetello replied that staff has that information, but had not included it on the slide.  Member Techel suggested having a discussion on people’s reactions to having their names listed as complainants.  

      Chair Scharff felt that we should have a policy for new complaints coming in.  Are we falling further behind?  Ms. Klein replied that we are.  Chair Scharff asked if we are being too tough – maybe some things should not really rise to the level of violations.  Standardized fines could be wiped out.  How do we get through everything given our staffing level?  What kind of fair enforcement process can we have?  He wanted to see an overall systematic approach that works.

      Ms. Klein stated that using the standardized fines process does take time.  In the future when we have no backlog, address the new cases in a timely fashion, and do permit compliance, the new violations will be discreet, simple, and easy.  The effort will have been invested between permit issuance and the violation discovery.

      Chair Scharff asked if, after the permit is issued, there is a point where we sign off that everything has been done.  Ms. Klein confirmed.  Chair Scharff felt that we need a sign-off.

      Regulatory Director Brad McCrea stated that “compliance assistance” has long been the problem:  helping people fulfill all the obligations of their permit, and then having someone from staff check that everything is done.  However, staffing is the issue.

      Chair Scharff suggested that maybe we should have fewer permits.  Why are we dealing with people’s backyards?  Director McCrea answered that the threshold for permitting was set long ago.  Mr. Zeppetello stated that it is in the McAteer-Petris Act.  Director McCrea stated that even for permits that are reasonably required, much compliance assistance is necessary which requires more staff.
      Chair Scharff stated that we need to design a system that works given the current resources.  BCDC Executive Director Goldzband stated that the constraint is resources.  We have to discern the highest priority cases and the best way to get to that caseload.  The Enforcement Committee is now suggesting First In, First Out (FIFO).  BCDC may not look at a case from 2011 if there is a case from 2017 or 2018 that comes in; that in itself has ramifications.  Staff is asking the Enforcement Committee to think about the process via this presentation.  However, there will be cases we cannot get to.  The question then becomes how to ensure that the cases we get to are the highest impact.

      Chair Scharff stated that his concern is a systems issue:  how not to have violations be the things we are going to let go.

      Member Vasquez suggested that maybe a benefit from the audit is to show the backlog, and that the only way to overcome it is with additional resources.  Director McCrea said that a new dedicated enforcement attorney is coming on in January, and hopefully later this fiscal year a new manager will come on.

      Ms. Klein commented that permit compliance and enforcement involves more than this staff.  Design analysts, engineers, staff attorneys, and permit analysts may need to review and approve.

    2. ArcGIS Enforcement Database
      Mr. Olsson described the previous tracking system, in which identical or similar data was tracked in multiple locations.  It was inefficient and inconsistent.
      The new ArcGIS Enforcement database has the following features and improvements.

      • It consolidates multiple datasets into a single online, georeferenced database.
      • Many processes are now automated and everything is stored in one place.
      • It is in the cloud and is accessible from any location. 
      • Data attributes have been added for nuanced caseload tracking. 
      • It simplifies reporting.
      • It has a codified staff workflow for case intake, investigation, and resolution.
      • It includes all cases except those resolved before 2002.

      Mr. Olsson stated that data entry is still being finalized.
      He gave a demonstration of the site. 

      Member Vasquez asked who can use the site.  Mr. Olsson replied that it is internal and will not be available for the public to access.

      Member Vasquez noted that the public might be confused by seeing the Permit Number first on the online violation form.  Mr. Olsson agreed and said that staff is considering simplifying the form to make it easier for the public to report.

      Mr. Zeppetello explained for Member Vasquez that the reason the site is not public is the way it has evolved over time.  Currently, if the public calls for information, staff can go to the database which has links to other documents.  Ms. Klein stated that the staff did not have a permanent GIS person until several years ago; the people who had done that job were limited-term interns.  Year by year we have been building more layers into the geospatial database, and most of its data has been entered by volunteers.  Staff has been working its way to making it a powerful tool for the public as well as BCDC.  It would save staff quite a bit of time if the public could access the permits.

      Member Techel asked what happens when someone goes online, fills out the form, and sends it.  Mr. Olsson answered that a staff member is assigned to email an acknowledgement. It is then assigned to an analyst (Mr. Trujillo, Ms. Klein, or Mr. Olsson) to do initial case research.  An impact score is given based on the prioritization system.  (Multiple reports give the case a higher visibility score.)  Staff opens a file for it and it goes into the database, and they decide which cases to pursue from there.

      Member Gilmore asked if staff ever gives feedback to the person who made the complaint.  Mr. Olsson replied that staff tries to do that but there is no system at this point.  The initial website informs them that staff is going to open a case.  People can specify if they want to be contacted or if they want to be anonymous. 

      Member Gilmore felt that people appreciate being kept in the loop even if their issues are not resolved.  We should think about making this more systematic across the board.  Ms. Klein stated that when a report is submitted online, people receive an automatic reply; if staff needs more information they call.  They are very attentive to the public.

      Member Gilmore stated that her concern was keeping people in the loop as the process grinds on.  Member Techel commented that if we make it easier to complain, we need to make sure we are doing the follow-up.

      Chair Scharff felt that we are losing sight of the backlog and we are not getting to the enforcement portion.  He would like to get that work done as well; what is the priority?  We must balance the staff resources – if we are actually not doing the work, we have a problem.

      Member Gilmore felt that getting back to the public is not a higher priority than actually working the cases.  In the same way that the public gets an email receipt of their complaint, maybe they can also get an automated email after six months, nine months, one year, and so on.  Perhaps we can also send emails that state that the complaint is part of the backlog and we will get to it when we can.

    3.  Amnesty Discussion

      Mr. Trujillo discussed amnesty options.  For the 228 open and inactive cases, there are nine types of possible approaches.

      •  No amnesty – keep all inactive (backlog) cases open.

      Options #2-6 could be done with or without sending notices to violators.

      • General amnesty for low priority cases.
      • Amnesty based on a prioritization score.
      • Amnesty based on age.
      • Amnesty for all cases in which the violation consisted of a one-off occurrence with no significant persistent illegal activities or effect.
      • Amnesty for all or select paper violations that do not involve a physical problem on site (for example, someone did not submit and execute a permit).
      • Amnesty for payment of a fine in which the low-priority violator’s case is resolved upon payment of a fine.  Member Vasquez commented that he had tried that with county fines, but got few results from people coming in – they may have been afraid of the county doing the inspection and finding other things as well.

      Member Vasquez asked about the notices.  Mr. Trujillo explained that “with notice” would involve creating a template, tailoring it, and sending it out to the violator.

      • Amnesty for resolving violations by a certain deadline.
      • Amnesty decided by the Enforcement Committee – they could decide whether or not to keep the case in the queue or dismiss it.

      Mr. Trujillo posed the question of what an amnesty program goal should be:

      • To resolve violations.
      • To close inactive cases/reduce backlog.
      • To free up staff resources to pursue major violators.
      • To set enforcement priorities.

      Executive Director Goldzband stated that staff did not expect the Enforcement Committee to come up with an answer today; instead they were asking for general direction so that staff could come back with something more specific.

      Member Techel felt that amnesty is about compliance; accordingly she liked Option #8.

      Chair Scharff asked what a low priority case looks like.  Mr. Trujillo answered that that there was really no typical case; in the prioritization process it is anything under 60.  The violation could be broken benches or sewage in the bay – it depends on how it scores to be ranked as low priority.  The prioritization formula takes into account many factors from bay fill to visibility. 

      Ms. Klein stated that in order to get a score of 60 or more, a case needs a score of 3 on the majority of the six criteria.  Scoring high on two of the criteria doesn’t get the case to 60.  The low priority violations range in scope from something very de minimis to something significant.  Permit violations account for at least 50% of the low priority cases.

      Chair Scharff asked if we have ongoing versus non-ongoing.  Mr. Trujillo stated that staff does evaluate ongoing effects in the scoring process – it is one of the sub-criteria.

      Chair Scharff felt that Option #9, Amnesty assigned by the Enforcement Committee, seems difficult because the committee would ask too many questions.  The amount of staff work required seems unworkable.  Staff could use their discretion to clean out some of the cases, and where staff feels concerned about the case, they could come to the committee – perhaps an informal ad hoc committee comprised of three members.

      Chair Scharff continued that the committee could give broad direction to staff to get rid of all the cases that are more than seven years old, unless there is a reason not to.  Essentially he wanted to tell staff to get rid of all the cases that are minor and do not really matter.

      Member Gilmore felt that the goal of this effort should be to resolve the violations, to close the inactive cases and reduce the backlog, to free up staff resources, and to set enforcement priorities.  What has triggered this series of workshops is the huge backlog.  She stated that she would remove Options #1 and 9 from the list right away.  Based on what staff has said, she would also remove #5 and 6 from the list. 

      She continued that she does not have a good feel for what “low priority” looks like, and would like a better understanding.  She has the greater problem with Option #4, Amnesty based on age; these cases have been hanging around for a long time for a reason.  Executive Director Goldzband confirmed with her that she would rather have staff filter an amnesty program based on the priority score (the impact score) versus the age of the violation.

      Ms. Gilmore assumed that any agreed-upon plan to proceed would go to the full Commission.  Executive Director Goldzband responded that staff has been using the term “strategy” in these discussions because it is not a policy.  When staff presents a plan of implementation, it will form the basis for a true policy discussion that the Enforcement Committee will have, which they will then provide as the basis for a recommendation to the Commission.

      Member Vasquez stated that the committee was struggling with the options; there are bits and pieces that could be applied to different cases.  He asked staff to think about how they would structure this if it were left totally up to them.

      Member Techel liked Option #8 because it provides the opportunity to fix the violation.  How many cases did staff think would be in that category?  Mr. Trujillo answered that it would be around 90-100.  Member Techel suggested starting with that.  She liked the approach of resolving the cases rather than just giving amnesty.  After seeing how many we can get cleared, maybe next year staff can return to look at one-off cases.

      Ms. Klein asked if the committee wished for staff to focus on the lowest of the low priority cases (scores of 10-20-30) or the higher-impact cases with scores between 40 and 60.  Chair Scharff preferred the lower scores; this is a stage process. 

      Ms. Klein stated that current practice is to hold a full compliance review when staff is resolving a violation.  Chair Scharff suggested that maybe we won’t be doing a full compliance review.  Mr. Trujillo stated that the committee could direct staff to go after the single violation only, which may include imposing a fine, which entails further staff follow-up.

      Chair Scharff and Member Vasquez agreed that this amnesty would not be perpetual.  Chair Scharff also felt that age of the case does play a role.

      Member Gilmore felt that we should limit the strategy to cases already filed rather than new cases.

      Member Vasquez asked the committee if we would have to make findings later on if someone violates tomorrow and we don’t treat them the same.  Mr. Zeppetello replied that legally, he did not think so.
      Member Vasquez liked the approach of doing this in stages.  After sending a letter to the 90 cases, some may not come into compliance and we will need to fine them.  Over a year or so we will need to measure the response.

      Member Gilmore noted that we will need to have next steps in place for non-compliance after receiving the letter.  We will have to consider necessary staff resources and track it that way, because the response we get will help inform whatever the next phase will be.

      Chair Scharff noted that if, when complaints come in, staff evaluates the entire permit for total compliance – wouldn’t it be better just to deal with the actual violation because of the limited staff resources?  How will you not get continually more behind?  Are there things that are a waste of our organization’s time that we currently look at – are there ways to do this differently?  Executive Director Goldzband answered that they would figure that out and get back to the committee.  As part of an amnesty program, we should discern going forward how to analyze our intake.  Chair Scharff affirmed that plan.  Further, he felt that we should think about a system that works within our resources so that we don’t create more of a backlog.

      Chair Scharff expressed willingness to give amnesty and dismiss the lowest-priority cases that we think have low impact and no ongoing issue (Option #2A).

      Member Vasquez suggested making the offer time-limited, one-time-only, and not appealable.  Mr. Zeppetello thought that was possible.  It does raise the legal question of whether we have to pick up the case and do a violation report when violators do not respond.

      Member Gilmore commented that we may have people who voluntarily come into compliance, but we may have others who question us and want a response from us, adding to the backlog.  We should figure out exactly what we are generating for ourselves. 

      Member Techel asked if all the violators know they are violators.  Mr. Trujillo answered that they do not until staff sends official notice of the violation.  Ms. Klein explained that staff generally makes contact beforehand – they arrange a site visit or start with a phone call.  Mr. Trujillo confirmed that site visits take a lot of staff time, which they try to mitigate by doing multiple visits in one outing.  Ms. Klein stated that the site visits are a critical part of assessing site conditions.

      Ms. Klein stated that staff has used interns over the years, but she doesn’t ask them to do cases because the life of each project tends to be longer than the intern’s tenure.

      Member Gilmore felt that we should have a date restriction on the low priority cases no older than two years or so:  it will be strange to send someone a notice of violation if it has been four or five years and they were not aware of the violation.  Starting the process for the older cases may be adding to our workload.  She felt that a letter should go out to the newer cases, and we should get a report from staff as to the remainder of the cases for the potential of dismissing them outright.

      Chair Scharff stated that the committee’s issue was not having enough information.  They did not want to cause staff to spend a lot of time on low-priority cases.  The committee may decide just to dismiss the low-priority cases that are old.

      Ms. Klein stated that despite the fact that the committee felt that they lacked enough information to provide valuable feedback, all that they have said has been right on point.  The direction is clear.  The committee would like staff to provide a more detailed plan of action that looks farther forward, considers consequences, and assesses workload and timely results.

      Member Vasquez noted that the committee has trust in staff to come up with something workable and in the interests of both BCDC and those who are in violation, both knowingly and unknowingly.

  6. Enforcement Regulations and Hearing Procedures
    1. Order Compliance
      Mr. Zeppetello reviewed the regulations that are key to the formal enforcement proceedings.

      • § 11321.  Commencing Commission Enforcement Proceedings. When the Executive Director believes it appropriate, he or she commences an enforcement proceeding by issuing a violation report or complaint for civil penalties or both.  Generally we do both.  The violation report refers to all documents on which the staff is relying to provide a prima facie case.  Since 2016, staff has been providing the documents to the committee instead of just referencing them.

      • § 11322.  Respondent’s Required Response to the Violation Report.  The respondent has 35 days after submission of the violation report to file a statement of defense.  If a respondent believes that cross-examination of a person relied upon by staff is needed, they are required to provide a statement showing the facts at issue and what they expect the cross-examination to focus upon.  If staff wants to cross-examine any witnesses, they have an opportunity.  The Executive Director may extend the 35-day time limit for a statement of defense.

      • § 11324.  Distribution of the Violation Report, Statement of Defense Form(s), and Recommended Enforcement Decision.  This must be done at least 10 days prior to the hearing.  Staff is trying to increase the time period to at least three weeks or 20 days.  Mr. Zeppetello noted that the regulation requires staff to provide everything at the same time; that is why we typically hold off until we have the recommended enforcement decision from staff as well as the violation report and statement of defense.

      • § 11326.  Contents of an Executive Director’s Recommended Enforcement Decision.  It includes a summary of the violations, a background, the essential violations, a list of the violations either admitted or contested, defenses and mitigating factors, and rebuttal evidence.  Staff can provide a summary of the unresolved issues, a statement of whether the Executive Director has issued an ED order, and a recommendation for action and a proposed text.

      • § 11327.  Enforcement Hearing Procedure.  The Chair shall announce the matter and indicate what matters are part of the record.  Mr. Zeppetello stated that it might be a good practice to make a summary statement of what documents are part of the record.  Member Posner added that the comment letter has become part of the record – the record should include anything that is posted.  She and Mr. Zeppetello agreed that a general statement that includes categories of the documents should be sufficient; anything that comes up at the hearing will be added to the record as well.  Ms. Posner stated that prior to the enforcement hearing, staff could come up with a general statement for the committee, and if there were anything different, staff could ensure that it is listed as well.

        Mr. Zeppetello stated that the Chair may impose time limits based on the circumstances and the number of people that want to speak.  Presentations made by staff, the respondent, and other speakers shall be limited to evidence already made part of the record and the policy implications of such evidence.  The committee shall not allow oral testimony unless the committee and the commission believe that such testimony is essential to resolve any essential factual issues.  Mr. Zeppetello emphasized that these administrative hearings are not trials – they are not an opportunity to put witnesses on the stand – they are supposed to be primarily based on the documents in the record.  Comments made by staff and respondents are supposed to be focused on the evidence already in the record.

        Chair Scharff noted that the public makes comments, and actual witnesses often comment.  We have tended to allow it because we are not sure what the harm could be.  Mr. Zeppetello responded that ultimately it is all part of the administrative record if a decision does get challenged.  Whether it is evidence or a public comment, it all becomes part of the record; it is a blurry line.  Chair Scharff asked if we should change anything we currently do.  Mr. Zeppetello’s inclination was to say no – it is public process, and we cannot control what people say beyond giving them a two- or three-minute time limit.  Ms. Posner agreed; people will go beyond the subject matter during the public comment section.  Section 11322 can take care of the loophole where someone tries to get someone in on a cross-examination:  a list of those to be cross-examined must be given up front.

      • § 11328. Acceptance of Late Evidence. The general rule is that surprise testimony or documentary evidence that is brought up at the enforcement hearing shall be discouraged.  It is only allowed if the Chair or committee make certain findings that the person seeking to introduce the evidence made reasonable efforts and that no party would suffer prejudice.  Member Vasquez asked about the Point Buckler hearing.  Mr. Zeppetello responded that Mr. Bazel was allowed to submit a brief on the basis that it was argument, not evidence, but the Chair excluded the underlying factual information that was late.  They were trying to give evidence of Mr. Sweeny’s inability to pay up until the last minute.

      • § 11329. Admissibility of Evidence.  Any relevant evidence may be admitted if it is the kind of evidence that reasonable persons are accustomed to rely on.  Staff commonly relies on complaints.  If they report that we have received complaints or if we have an email from someone who has been denied access, for example, that would be evidence that people can rely on, even though it may not be admissible in a court of law because it is hearsay.  Hearsay may be used but cannot be the sole basis of a finding.

      • § 11330. Adoption of an Enforcement Committee or a Hearing Officer Recommended Enforcement Decision.  The committee’s enforcement decision is supposed to include all the matters required by Section 11326, the Executive Director’s recommended decision.

  7. Report of the Chief of Enforcement
    1. Order Compliance
      Ms. Klein stated that Cease and Desist Order No. CDO2016.04 was issued to Marina Village Associates (MVA) in November 2016 to resolve fill and public access violations at a marina with new multi-residential unit development on San Pedro Road in San Rafael, Marin County.  In lieu of some penalties, MVA agreed to conduct a flooding study of two low-lying public access areas that were authorized by BCDC before sea level risk analyses were being conducted to assess future potential flooding.  As part of the stipulated order and based on the outcome of the flooding study, MVA agreed to implement recommendations to reduce flooding in these public access areas.  Two years later, staff is still working with MVA to file as complete an application to authorize work to address flooding.  The result will be beneficial, and staff continues to invest resources to achieve it.

      Cease and Desist Order No. CDO2017.01 was issued to Scott’s Jack London Seafood Inc. in April 2017 to resolve public access violations in Jack London Square, Alameda County.  Resolution of this case was unexpectedly delayed earlier this year by an awkwardly-timed decision by the Port of Oakland and its property manager to replace all of the public furnishings at Jack London Square, of which Scott’s is responsible for a subset.  Staff made a decision to allow a delay for Scott’s to install the furnishings so the overall look of Jack London Square would be consistent.

      The Heron Bay Homeowner’s Association, subject to Cease and Desist Order No. CDO2017.03, issued in October 2017 to resolve public access violations at a multi-unit residential development in San Leandro, Alameda County, was slow to finalize preparation of their legal instrument required to dedicate the public access area; but that is finally happening this week.

      The North Coast Railroad Authority is on track to submit a revised site restoration plan to resolve fill violations in Novato, Marin County.

    2. County of San Mateo Parks and Recreation District (Coyote Point Marina)

      Mr. Olsson presented the case as an illustration of staff day-to-day work, and as an example of case resolution that does not come to the committee.

      • In July 2017, staff granted the marina episode approval to dredge a part of the marina based on an approved Dredge Operations Plan (DOP).
      • Dredging occurred from July to November 2017.
      • In December they submitted a post-dredge report.
      • In February 2018 a staff member from the BCDC sediment team notified enforcement staff that dredging violations had occurred.  The County and its dredging contractor had not followed the DOP, resulting in three violations:
        • Violation 1:  They dredged in unauthorized areas.
        • Violation 2:  They dredged beyond approved depths in authorized areas.
        • Violation 3:  They disposed of the unauthorized dredge material at Alcatraz SF-11 Disposal Site.  The total unauthorized volume was ˃5,300 cubic yards.  At least 1,400 cubic yards of that was potentially contaminated material – they had not done the proper sampling.
      • In April 2018, following a phone call, BCDC sent them a notice of violations and proposed a settlement in lieu of standardized fines:  50% reduction to $45,000.
      • In June the County appealed to reduce the fines to $30,000.
      • Enforcement staff supported the fine reduction and drafted an appeal memo which the BCDC Executive Director and Commission Chair granted.
      • In August BCDC received a check for $30,000 and closed the case.

      Mr. Olsson commented that the total case resolution time was six months – relatively fast.  This was due to three factors.  The settlement was in lieu of standardized fines because there was no means of reversing the damage.  Payment was the only recourse; we did not have to wait for them to fix anything.  Further, the relations between our staff and theirs was amicable.

      This was a rare example of an enforcement case where a site visit was not needed.  We relied exclusively on the post-dredge report.

      Chair Scharff asked if the County recovered those fines from their contractor.  Mr. Olsson answered that they did have a clause that allowed them to pass on any fines to the contractor; however, they admitted that they had given false information to the contractor.  Both parties committed a mistake caused by not following the DOP. 

      Mr. Olsson stated that the enforcement staff had said they would not penalize the County by preventing them from getting a permit in the future; however, if they commit another violation, the rate at which that fine would accrue would double for the first five years after the violation.

      Chair Scharff asked about the dredge report.  Mr. Olsson explained that a second contractor did the actual analysis.  When they sent the report to our staff, they were not aware of the violations.  (Before the dredging occurred, our staff had reminded them to follow the approved plan.)

  8. Adjournment
    Chair Scharff adjourned the meeting at 12:14 p.m.