1. The term significant noncompliance shall be applicable to all SIUs or CIUs (or any other industrial user that violations subparagraphs (c), (d), or (h) below) and shall mean:
a. Chronic violations of wastewater discharge limits, defined here as those in which sixty-six (66) percent or more of all measurements taken for the same pollutant parameter during a six- (6-) month period exceed (by any magnitude) a numeric pretreatment standard or requirement, including instantaneous limits;
b. Technical review criteria (TRC) violations, defined here as those in which thirty-three (33) percent or more of wastewater measurements taken for each pollutant parameter during a six- (6-) month period equals or exceeds the product of the numeric pretreatment standard or requirement, including instantaneous limits, multiplied by the applicable criteria (1.4 for BOD, TSS, fats, oils, and grease, and 1.2 for all other pollutants except pH;
c. Any other violation of a pretreatment standard or requirement as defined in article II (daily maximum, long-term average, instantaneous limit, or narrative standard) that the director determines has caused, alone or in combination with other discharges, interference or pass through, including endangering the health of city personnel or the general public;
d. Any discharge of a pollutant that has caused imminent endangerment to the public or to the environment, or has resulted in the director’s exercise of its emergency authority to halt or prevent such a discharge;
e. Failure to meet, within ninety (90) days of the scheduled date, a compliance schedule milestone contained in a wastewater discharge permit or enforcement order for starting construction, completing construction, or attaining final compliance;
f. Failure to provide within forty-five (45) days after the due date, any required reports, including baseline monitoring reports, reports on compliance with categorical pretreatment standards deadlines, periodic self-monitoring reports, and reports on compliance with compliance schedules;
g. Failure to accurately report noncompliance; or
h. Any other violation(s), which may include a violation of BMPs, which the director determines will adversely affect the operations or implementation of the pretreatment program.
The city shall annually publish in the largest newspaper of general circulation within the city a list of the industrial users that were in significant noncompliance with any pretreatment standards and requirements at any time during the previous twelve (12) months.
2. Correction Notice/Notice of Violation/Show Cause Hearing.
a. Whenever the director finds that any user has violated, is violating, threatens to violate, or continues to violate, this chapter, a wastewater discharge permit, or any pretreatment standard or requirement, and the director determines that the violation is minor in nature, the director may issue a correction notice to the user.
b. Whenever the director finds that any user has violated, is violating, threatens to violate, or continues to violate, this chapter, a wastewater discharge permit, or any pretreatment standard or requirement, the director may serve upon such user a written notice of violation containing the director’s findings. Within thirty (30) days of the date of the notice of violation, the user shall submit to the director a technical report and response consisting of an explanation of the violation and a plan for the satisfactory correction and prevention of reoccurrences thereof, including specific required actions and proposed dates for completion of such action. Submission of this response shall not relieve the user of liability for any violations occurring either before or after receipt of the notice of violation. A notice of violation shall not be a bar against, or a prerequisite for, taking any other action against the user.
c. As a part of a notice of violation, or in lieu thereof, a user may be ordered by the director to show cause why a proposed enforcement action should not be taken. A show cause order shall be served on the user specifying the time and place of the hearing regarding the violation, the reasons why the action is to be taken, the proposed enforcement action, and directing the user to show cause before the director why the proposed enforcement action should not be taken. The show cause order shall be served personally or by registered or certified mail (return receipt requested) at least ten (10) days before the hearing. A show cause hearing shall not be a bar against, or prerequisite for, taking any other action against the user.
d. In the event of the issuance of a show cause order pursuant to this section, the director shall conduct the hearing and:
i. Issue in the name of the city notices of hearing requesting the attendance and testimony of witnesses, and the production of evidence relevant to any matter involved in such hearings;
ii. Take the evidence; and
iii. Prepare a report of the evidence and hearing, together with recommendations for action thereon.
3. Cease and Desist Orders/Compliance Directives.
a. When the director finds that a user has violated, is violating, threatens to violate, or continues to violate, any provision of this chapter, a wastewater discharge permit, or any pretreatment standard or requirement, or that the user’s past violations are likely to recur, the director may issue a cease and desist order (also known as a compliance directive) to the user directing the user to cease and desist all such violations and further directing the user to:
i. Immediately comply with all such requirements; and
ii. Take such appropriate remedial or preventive action as may be needed to properly address a continuing or threatened violation, including halting operations and/or terminating the discharge upon such schedule as the director may order.
b. Issuance of a cease and desist order shall not be a bar against, or a prerequisite for, taking any other action against the user.
4. Nuisance/Injunctive Relief/Recovery of Damages.
a. Continued habitation of premises during any period of termination or suspension of sewer services, or the continued habitation, occupancy, or operation of any premises in violation of the provisions of this chapter or any ordinance, rule, or regulation of the city related to sanitary sewer system use (including, but not limited to pretreatment standards and requirements), is hereby declared to be a threat to public health and a public nuisance. Violation of any of the provisions of this chapter, a wastewater discharge permit, or any pretreatment standard or requirement, is hereby declared to be a threat to public health and a public nuisance.
b. When the director finds that any person or user has violated, is violating, threatens to violate, or continues to violate, any provision of this chapter, a wastewater discharge permit, or any other pretreatment standard or requirement, the director may request that the city attorney bring an action in the name of the city for the issuance of a temporary or permanent injunction, as appropriate, which restrains or compels the specific performance, of the wastewater discharge permit, order, or other requirement imposed by this chapter on activities of the user. The city attorney may also seek such other legal and/or equitable remedies as are appropriate, including a requirement for the user to conduct environmental remediation or that the user pay such actual and compensatory damages as may have been incurred by the city.
c. A complaint for injunctive relief or for damages shall not be a bar against, or a prerequisite for, taking any other action against a user.
5. Administrative Civil Liability.
a. In general. Pursuant to the provisions of Government Code section 54740.5 and regardless of whether or not a cease and desist order or a notice of violation was previously issued, upon determining that any user is violating the terms of a wastewater discharge permit, any federal or state regulation or law related to the discharge of non-domestic wastewater or the pretreatment program, or any of the provisions of this chapter, the director may serve an administrative civil liability complaint upon such user by personal service or by certified mail, U.S. postage prepaid, at the address indicated on the wastewater discharge permit or at the service address if no permit exists. The administrative complaint shall indicate the nature of the violations found by the director, the provisions of law authorizing civil liability to be imposed, and the amount of the proposed civil penalty.
b. Hearing. The administrative complaint shall inform the user served that a hearing will be conducted within sixty (60) calendar days after service before a hearing officer designated by the city council. The user who has been issued an administrative complaint may waive the right to a hearing, in which case the city shall not conduct a hearing, and the proposed civil penalty shall be paid. If, after a hearing, it is found that the user has violated any reporting or discharge requirements, the hearing officer may assess a civil penalty against that user. In determining the amount of the civil penalty, the hearing officer may take into consideration all relevant circumstances, including, but not limited to, the extent of harm caused by the violation, the economic benefit derived through any noncompliance, the nature and persistence of the violation, the length of time over which the violation occurs and corrective action, if any, attempted or taken by the user.
c. Appeal. Any aggrieved person may appeal the decision of the hearing officer to the city council by filing a written appeal with the city clerk pursuant to chapter 2.80 of this code.
d. Service of Orders. Copies of orders imposing administrative civil penalties after either hearing or appeal shall be served by personal service or by registered mail upon the party served with the administrative complaint and upon other persons who appeared at the hearing or appeal and requested a copy.
e. Amount of Civil Penalty. Civil penalties may be imposed for failure or refusal to furnish technical or monitoring reports, for failure or refusal to timely comply with any compliance schedule established in a cease and desist order, for discharges in violation of any waste discharge limitation, permit condition, or pretreatment standard, or requirement issued or adopted by the city relating to non-domestic wastewater or the pretreatment program, for discharges in violation of any suspension or termination of service, cease and desist order (other than the compliance schedules thereof), or other orders or prohibitions issued or adopted by the city, in amounts to be adopted by resolution. Civil penalties may be imposed in the amount consistent with the maximum fine allowable under state law per violation per day for violations of pretreatment standards and requirements.
f. Payment of Civil Penalty - Lien on Real Property. Unless appealed, orders setting administrative civil penalties shall become effective and final upon their issuance, and payment shall be made within thirty (30) calendar days. Any civil penalties which have remained delinquent for a period of sixty (60) calendar days (i.e., have not been paid for ninety (90) days after becoming final) shall constitute a lien against the real property from which the discharge originated which resulted in the imposition of the civil penalty. The lien shall be of no force or effect until recorded with the County Recorder, and when recorded shall have the force, effect, and priority of a judgment lien and continue for ten (10) years from recordation unless sooner released. The lien shall be renewable in accordance with the provisions of sections 683.110 to 683.220 inclusive of the Code of Civil Procedure.
g. Judicial Confirmation. The city attorney has the authority to petition the Superior Court of Butte County to confirm any order establishing civil penalties pursuant to the provisions of Government Code section 54740.5(g).
h. Deposit of Penalties. All monies collected pursuant to this section shall be deposited in a special account as designated by the finance director and shall be utilized for the monitoring, treatment, and control of discharges into the city’s sanitary sewer system or other mitigation measures relating to the pretreatment program.
i. Notwithstanding any other provision of this article to the contrary, no civil penalties shall be recoverable under this section for any violation for which civil liability is recovered pursuant to section 15.40.480(6) below.
6. Judicial Petition for Civil Liability. In any case where a user violates any requirement adopted or ordered by the city pursuant to Government Code section 54739(a)(1) or (2), the city may petition the Superior Court of Butte County to impose, assess, and recover the sums provided in Government Code section 54740. Provided, however, that notwithstanding any other provision of this article to the contrary, no civil penalties shall be recoverable under this subsection for any violation for which administrative civil liability is recovered pursuant to section 15.40.480(5).
7. Remedies Cumulative. Except as otherwise expressly provided by law, all of the remedies specified in this article are cumulative, and each is in addition to any other remedy provided by law.
8. Criminal Penalties.
a. A user who willfully or negligently violates any provisions of this chapter, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement shall, upon conviction, be guilty of a misdemeanor or infraction, punishable by a fine of not more than the maximum fine allowed under state law per violation per day or imprisonment, or both.
b. A user who willfully or negligently introduces any substance into the city’s sanitary sewer system, which causes personal injury or property damage shall, upon conviction, be guilty of a misdemeanor or infraction and be subject to a penalty of at least the maximum fine allowable under state law per violation per day or imprisonment, or both. This penalty shall be in addition to any other cause of action for personal injury or property damage under state law.
9. Falsifying information. Any person who knowingly makes any false statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained pursuant to this chapter, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required under this chapter, upon conviction, shall be guilty of a misdemeanor and subject to a penalty of at least the maximum fine allowable under state law per violation per day or imprisonment, or both.
10. No City Liability for Damages. This chapter shall not be construed to limit the responsibility or liability of any person for damage to persons or property which may occur as a result of the discharge of wastewater nor shall the city, nor any agent thereof, be considered as assuming any liability in connection with the discharge of such wastewater by reason of the performance of its duties under this chapter.
11. Remedies Not Exclusive. The remedies provided in this chapter are not exclusive. The director may take any, all, or any combination of these actions against a noncompliant user. Enforcement of pretreatment violations will generally be in accordance with the city’s enforcement response plan. However, the director may take other action against any user when circumstances warrant.
Further, the director is empowered to take more than one enforcement action against any noncompliant user.
(Ord. 2481 §1 (part))