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A. Request For Informal Conference By User: After issuance of an FNOV or NOV or a unilateral administrative order, the user may request an informal conference with the Chief Executive Officer to resolve issues in the notice or order. The request must be submitted to the Chief Executive Officer in writing within five (5) calendar days of receipt of the notice or order or prior to the date upon which corrective action has been ordered, whichever comes first. The Chief Executive Officer shall hold the informal conference within ten (10) calendar days of receipt of the request for the informal conference. The notice or unilateral administrative order may be modified or reissued as a consent administrative order after resolution of issues in the informal conference, within fifteen (15) calendar days of the informal conference.
B. Request For Hearing By User:
1. The user may request a hearing after receipt of a unilateral administrative order, emergency suspension order, or imminent hazard order within the following time periods:
a. Any request for hearing must be submitted in writing to the Chief Executive Officer within fifteen (15) calendar days after receipt of a unilateral administrative order (if no hearing has been previously held). If an informal conference is requested and held, the time period for requesting a hearing is extended to within five (5) calendar days of the informal conference. In no event may a written request for a hearing be submitted beyond thirty (30) calendar days following receipt of a unilateral administrative order.
b. Any request for hearing must be submitted in writing to the Chief Executive Officer within five (5) calendar days after receipt of an emergency suspension order or imminent hazard order.
2. The user may request a stay of requirements (including payment of administrative fines) in a written request for hearing regarding a unilateral administrative order. A stay of the requirements may be granted at the discretion of the Hearing Officer considering hardship on user, whether an ongoing violation is occurring, potential adverse effects of ongoing violation, and certainty of violation. No stay of requirements is available regarding an emergency suspension order or imminent hazard order.
3. If a request for a hearing is filed, a hearing shall be held within a reasonable time.
4. If the hearing is not requested within the specified time periods, the FNOV, NOV, unilateral administrative order, or emergency suspension order is final.
5. Submission of a request for a hearing in no way relieves the user of liability for any violations occurring before or after receipt of the FNOV, NOV or order.
C. Hearing Initiated By Chief Executive Officer: Prior to any NOV or formal order, the Chief Executive Officer may order to appear at a public hearing any user which causes or contributes to violation of this article, control mechanism, BMP or order issued hereunder, to show cause to the Chief Executive Officer, why a proposed enforcement action should not be taken. Notice shall be served on the user specifying the time and place for the public hearing; the proposed enforcement action and the reasons for the action, including any alleged violation and the facts constituting the violation, and a request that the user show cause why the proposed enforcement action should not be taken. The notice of the hearing shall be served personally or by registered or certified mail (return receipt requested) at least fifteen (15) days prior to the hearing; except that the Chief Executive Officer may set an earlier date for hearing if it is requested by the alleged violator. The notice may be served on any principal executive, general partner or corporate officer. Whether or not a duly notified user appears as noticed, immediate enforcement action may be pursued.
D. Hearing Procedures:
1. Hearing Officer:
a. Upon request for a hearing, the Chief Executive Officer may act as Hearing Officer or may designate, in writing and/or by administrative regulation, employees of the City and Utilities or third parties as Hearing Officers. No Hearing Officer shall be responsible to or subject to the supervision or direction of any officer, employee, or agent engaged in the performance or investigatory or prosecuting functions for the Chief Executive Officer.
b. Upon the filing in good faith by a party of a timely and sufficient affidavit of personal bias by a Hearing Officer, the Hearing Officer shall rule upon the allegations as part of the record in the administrative proceedings. A Hearing Officer may at any time withdraw if he/she deems him/herself disqualified or for any other good reason, in which case the Chief Executive Officer promptly shall designate a new Hearing Officer.
2. Representation: Utilities or the City shall be represented by an attorney from the Utilities general counsel's office, Office of the City Attorney or outside counsel hired by either office. The alleged violator may be represented by counsel or may proceed pro se. At the Hearing Officer's discretion, an attorney who is from the Utilities general counsel's office, Office of the City Attorney or outside counsel hired by either office and who is different from the Attorney representing Utilities or the City, may advise the Hearing Officer regarding any procedural questions during the hearing.
3. Prehearing And Hearing Procedures:
a. Hearing Officer Authority: The Hearing Officer shall have authority to administer oaths and affirmations; sign and issue subpoenas; rule upon evidentiary objections and offers of proof; dispose of motions, including, without limitation, motions pertaining to discovery, jurisdiction, dismissal, procedure, consolidation and intervention; regulate prehearing proceedings and schedule; regulate the conduct and timing of the hearing; exclude from the hearing any person for any improper conduct; and award attorney fees for abuses of discovery or as otherwise provided in the Colorado Rules of Civil Procedure.
b. Prehearing Scheduling Order: The Hearing Officer shall timely issue a prehearing scheduling order to the parties. The order shall contain a discovery schedule; prehearing motion schedule; date by which persons, experts, documents, expert reports and tangible things will be identified; date for prehearing conference, if any; date for hearing management order, if any, and hearing date.
c. Discovery: To the extent practicable, Colorado Rules of Civil Procedure 29 and 30, regarding depositions, apply to hearings conducted under this article. The parties retain their rights under the Colorado Open Records Act and the Chief Executive Officer retains its inspection and enforcement authorities under this article during the pendency of the proceedings and the Hearing Officer shall not abridge these rights.
d. Subpoenas: Upon oral or written request of any party, a Hearing Officer shall sign a subpoena or subpoena duces tecum requiring the attendance of a witness or the production of documentary evidence, or both at a deposition or hearing. Compliance with any subpoena issued may be enforced by application of the Hearing Officer to the Municipal Court of the City, where enforcement may be in the same manner as contempt of court is enforced pursuant to section 11.3.113 of this Code.
e. Settlement Conferences: At any time after a proceeding is initiated, any party may request a settlement conference. If the Hearing Officer grants the request, the conference shall be conducted by a third party, paid for equally by all parties. All discussions at the settlement conference shall not be disclosed to the Hearing Officer and are governed by Colorado Rule of Evidence 408. A Hearing Officer may require a settlement conference on his/her own motion.
f. Settlements: The Hearing Officer shall be notified promptly of all settlements, stipulations, Chief Executive Officer orders or any other action terminating the matter. Approval by the Hearing Officer is not required.
g. Ex Parte Communications: No ex parte material representation of any kind offered without notice shall be received or considered by the Hearing Officer. Copies of all pleadings or correspondence filed with, or directed to, the Hearing Officer by any party shall be served upon all other parties.
h. Evidence: Except with respect to rule 408, the Hearing Officer shall not be bound by the Colorado Rules of Evidence. The Hearing Officer may exclude evidence if such evidence does not possess the probative value commonly accepted by reasonable and prudent people in the conduct of their affairs. The Hearing Officer shall give effect to the rules of privilege recognized by law. The Hearing Officer may exclude incompetent and repetitious evidence. Upon request, a party shall be given the opportunity to compare a copy of documentary evidence with the original.
i. Continuances: Continuances are discouraged and shall be granted only upon a showing of good cause. Motions for continuance must be filed in a timely manner. Stipulations for a continuance shall not be effective unless and until approved by the Hearing Officer.
j. Prehearing Conference And Hearing Management Order: The Hearing Officer may request that the parties provide a hearing management order in the form provided by CRCP 16(C)(1). The Hearing Officer may enter the hearing management order with or without a prehearing conference.
k. Conduct Of Hearing: The Hearing Officer may request that the parties, prior to the hearing, identify witnesses and submit any documentary or demonstrative evidence or expert reports, which may be presented at the hearing. The Hearing Officer shall establish a procedure for conduct of the hearing, which shall allow for an orderly presentation by all parties. The Hearing Officer shall permit all parties to respond to the request for hearing, to present evidence and argument on all issues, and to conduct cross examination required for full disclosure of the facts.
l. File And Hearings Open To The Public: If a hearing is held pursuant to this article, all items filed with the Hearing Officer and the hearing shall be open to the public.
4. Evidence: A verbatim record of the proceedings shall be made by electronic recording device or other more appropriate method. The Hearing Officer shall mark any documentation or demonstrative evidence received and shall maintain the evidence. The transcript, if prepared, and other evidence will be made available to any person upon payment of charges.
5. Hearing Record: For purposes of the decision, the record shall include all pleadings, applications, testimony, exhibits and other evidence presented or considered, matters officially noticed, any findings of fact and conclusions of law proposed by any party, and any written brief filed.
6. Decision: Unless the designation of the Hearing Officer by the Chief Executive Officer provides otherwise, upon review of the record, the Hearing Officer shall prepare, file and serve upon each party his or her decision. Each decision shall include a statement of findings and conclusions upon all the material issues of fact, law, or discretion presented by the record and the appropriate order, sanction, relief, or denial.
E. Judicial Review: If a timely request for hearing is made, the decision of the Hearing Officer shall be a final order. Any party adversely affected by the decision of a Hearing Officer may appeal it to the District Court in and for the County of El Paso pursuant to rule 106(a)(4) of the Colorado Rules of Civil Procedure. If the alleged violator fails to submit a timely written request for a hearing, the alleged violator has failed to exhaust administrative remedies and may not appeal the notice or order to District Court.
F. Judicial Collection: After the order assessing administrative fines has become final, or after a court in an action brought under subsection E of this section has entered a final judgment in favor of Utilities, the Chief Executive Officer may request the City Attorney to bring a civil action, if not earlier filed as a part of the judicial review, in the District Court to recover the amount assessed (plus postjudgment interest at the legal rate of interest, as defined at Colorado Revised Statutes section 5-12-101). In such an action, the validity, amount, and appropriateness of the penalty shall not be subject to review. (Ord. 99-163; Ord. 00-204; Ord. 01-42; Ord. 10-82; Ord. 18-42; Ord. 19-34)
A. Legal Action: If any person violates the provisions of this article or any order, permit, control mechanism, or BMP issued hereunder, the Chief Executive Officer, through the City Attorney, may commence an action for injunctive relief in the District Court, and/or for appropriate legal relief in the Municipal Court or other proper jurisdiction.
B. Injunctive Relief: Whenever a person has violated or continues to violate the provisions of this article or permit, control mechanism, BMP or order issued hereunder, the Chief Executive Officer, through counsel, may petition the court for the issuance of a preliminary or permanent injunction or both (as may be appropriate) which restrains or compels the activities on the part of the person. Any injunction, restraining order or other equitable remedy may be granted by the court regardless of the existence of another legal or equitable remedy.
C. Civil Penalties:
1. Any person who has violated or continues to violate this article or any order or permit, control mechanism or BMP issued hereunder, may be liable to the City or Utilities for a civil penalty of not more than one thousand dollars ($1,000.00), plus actual damages incurred by the POTW, per violation per day for as long as the violation continues. Each day on which noncompliance shall occur or continue may be deemed a separate and distinct violation. Instances when a violation continues (for which fines may be assessed for each day) include, but are not limited to, each day of failure to provide required submittals after the due date; following a sampling event showing noncompliance until a sampling event demonstrating compliance; and failure to rectify the damage to the wastewater treatment system or to the environment resulting from an initial violation. In addition to the above described penalty and damages, the Chief Executive Officer may recover reasonable attorney fees, court costs, and other expenses associated with the enforcement activities, including, but not limited to, sampling and monitoring expenses.
2. The City or Utilities may petition the court to impose, assess and recover the sums as described in subsection C1 of this section. In determining the amount of liability, the court shall consider the seriousness of the violation(s), the economic benefit (if any) resulting from the violation(s), any history of such violations, any good faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and any other factor as justice requires. The purpose of any civil penalty is to encourage compliance, to remedy unquantified damage to the POTW or environment and not to impose criminal sanctions nor retribution.
D. Criminal Prosecution:
1. Any person who wilfully, knowingly, or negligently violates any provision of this article or any orders or permits, control mechanisms, or BMPs issued hereunder shall, upon conviction, be guilty of a misdemeanor, punishable by a fine not to exceed one thousand dollars ($1,000.00) per violation per day or imprisonment for not more than six (6) months, or both. This penalty is to be consistent with the Federal Clean Water Act, 33 USC section 1251 et seq., and shall apply to the exclusion of subsection 12.1.115B of this chapter or any other Code provision more lenient.
2. Any person who knowingly makes any false statements, representations or certifications in any application, record, report, plan or other document filed or required to be maintained pursuant to this chapter, or wastewater permit, or any person who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required under this article shall, upon conviction, be punished by a fine of not more than one thousand dollars ($1,000.00) per violation per day or imprisonment for not more than six (6) months, or both. This penalty is to be consistent with the Federal Clean Water Act, 33 USC section 1251 et seq., and shall apply to the exclusion of subsection 12.1.115B of this chapter or any other Code provision more lenient.
E. Public Nuisance: The Chief Executive Officer may pursue a public nuisance action as provided in subsection 12.1.115A of this chapter and chapter 9, article 6 of this Code. (Ord. 99-163; Ord. 00-204; Ord. 01-42; Ord. 10-82; Ord. 18-42)
A. Annual Publication Of Significant Noncompliance: The Chief Executive Officer shall publish, at least annually in the largest daily newspaper circulated in the service area, a description of those users which are found to be in "significant noncompliance", as defined in section 12.5.201 of this article, with any provisions of this article or any permit or order issued hereunder during the annual reporting period since the previous publication. The annual notice shall include, but is not limited to, the name of the violator, date of violation, and general nature of the violation. Prior to the publication, the Chief Executive Officer shall notify in writing each affected user of the intended publication and shall give the user fifteen (15) days to request a hearing in writing regarding the significant noncompliance status, if the user so desires.
B. Financial Assurance: The Chief Executive Officer may decline to reissue a permit or control mechanism to any user which has failed to comply with the provisions of this article or any order or previous permit or control mechanism issued hereunder, unless the user first submits proof that it has obtained financial assurances sufficient to restore or repair POTW damage caused by its discharge.
C. Federal-State Enforcement: In addition to other remedies for enforcement provided herein, the Chief Executive Officer may petition other entities and agencies including, but not limited to, the State of Colorado and/or the U.S. Environmental Protection Agency, as appropriate, to exercise such methods of enforcement or remedies as are available to those entities. The petition can include the filing of a citizen suit as authorized by Clean Water Act section 505 (33 USC section 1365).
D. Lien Assessment:
1. Lien For Costs Incurred: When the owner, operator or occupant of the property fails to comply with any final order issued pursuant to the Wastewater Code, which requires abatement of an imminent hazard or public nuisance and the Chief Executive Officer causes abatement of the imminent hazard or public nuisance, the Chief Executive Officer is hereby authorized to commence lien assessment proceedings against the property for costs of the abatement, in accord with the procedures of chapter 2, article 6 of this Code.
2. Lien For Administrative Fines: When the owner, operator or occupant of the property is subject to a final administrative order assessing administrative fines and has not fully paid the fines or completely performed the supplemental environmental project within the time frames provided for in the final administrative order, the Chief Executive Officer is hereby authorized to commence lien assessment proceedings against the property, in accord with the procedures of chapter 2 of this Code as amended by this subsection.
a. Notice Of Assessment: No earlier than thirty (30) days following a final administrative order assessing administrative fines, the Chief Executive Officer shall provide a notice of assessment:
(1) Attaching the relevant administrative order, and
(2) Specifying the amount of the administrative fines that remain unpaid and/or the portion of the supplemental environmental project that remains incomplete and the cost of the incomplete project and the requirements of chapter 2 of this Code.
b. Assessment Hearing: In lieu of the requirements of section 2.6.103 of this Code, the provisions of this subsection apply. At the time and place specified in the notice of assessment, or at some adjourned time, the City Council shall hear and determine all complaints and objections and may confirm the unpaid portion of the administrative fines and/or the costs of the incomplete portion of the supplemental environmental project. The City Council will not hear complaints and objections regarding the final administrative order including the violations for which the administrative order was issued, the amount of the original administrative fine, or the original costs or requirements pertaining to the supplemental environmental project. The unpaid portion of the administrative fines and/or the costs of the incomplete portion of the supplemental environmental project, together with the surcharge, shall be levied, assessed, and charged by ordinance against the property to which the final administrative order pertains and shall become a perpetual lien thereon, to be collected in the same manner as provided in chapter 2, article 6 of this Code.
c. Payment Of Assessments: In lieu of the requirements of section 2.6.201 of this Code, the provisions of this subsection apply. All assessments for unpaid administrative fines and incomplete supplemental environmental projects shall be due and payable without demand thirty (30) days after final approval of the assessing ordinance. (Ord. 99-163; Ord. 01-42; Ord. 10-82; Ord. 18-42)
A. Upsets:
1. Defined: An "upset" is defined as an exceptional incident which causes temporary and unintentional noncompliance with the discharger's categorical pretreatment standards because of actions beyond the reasonable control of the user. Upsets do not include incidents or noncompliance caused by:
a. Operational error;
b. Improperly designed treatment facilities;
c. Inadequate treatment facilities;
d. Lack of adequate preventative maintenance;
e. Careless or improper operation of processes and treatment facilities; or
f. A reduction, loss or failure of the user's treatment facility including, but not limited to, a power outage.
2. Claims: Claims of an upset shall constitute an affirmative defense to a charge that a user has violated a categorical pretreatment standard if and only if the following requirements are satisfied:
a. The user must be able to identify the specific cause of the claimed upset;
b. The user must establish prudent operation and maintenance of the facility at the time of the claimed upset;
c. The user must demonstrate compliance with operation and maintenance procedures at the time of the claimed upset;
d. The industrial user has submitted the following information to the POTW and Chief Executive Officer within twenty four (24) hours of becoming aware of the upset (if this information is provided orally, a written submission must be provided within 5 days):
(1) A description of the indirect discharge and cause of noncompliance;
(2) The period of noncompliance, including exact dates and times or, if not corrected, the anticipated time the noncompliance is expected to continue; and
(3) Steps being taken and/or planned to reduce, eliminate and prevent recurrence of the noncompliance.
3. Burden Of Proof: The burden of proving that an upset has occurred shall be on the user.
4. Reviewability Of Agency Consideration Of Claims Of Upset: In the usual exercise of prosecutorial discretion, enforcement personnel should review any claims that noncompliance was caused by an upset. No determinations made in the course of the review constitute final action subject to judicial review. Industrial users will have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for noncompliance with categorical pretreatment standards.
5. User Responsibility In Case Of Upset: The industrial user shall control production or all discharges to the extent necessary to maintain compliance with categorical pretreatment standards upon reduction, loss, or failure of its treatment facility until the facility is restored or an alternative method of treatment is provided. This requirement applies in the situation where, among other things, the primary source of power of the treatment facility is reduced, lost or fails.
B. Bypass:
1. Prohibition Of Bypass: Bypass is prohibited, and the control authority may take enforcement action against an industrial user for a bypass, unless:
a. Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;
b. There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate backup equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventative maintenance; and
c. The industrial user submitted notices as required under subsection B4 of this section.
2. Approval Of Bypass By Control Authority: The control authority may approve an anticipated bypass, after considering its adverse effects, if the control authority determines that it will meet the three (3) conditions listed in subsection B1 of this section.
3. Bypass Not Violating Applicable Pretreatment Standards Or Requirements: An industrial user may allow any bypass to occur which does not cause pretreatment standards or requirements to be violated, but only if it also is for essential maintenance to assure efficient operation. These bypasses are not subject to the provisions of subsections B1 and B4 of this section.
4. Notice:
a. Anticipated Bypass: If an industrial user knows in advance of the need for a bypass, it shall submit prior notice to the Chief Executive Officer, if possible at least ten (10) days before the date of the bypass.
b. Unanticipated Bypass: An industrial user shall submit oral notice of an unanticipated bypass that exceeds applicable pretreatment standards to the Chief Executive Officer within twenty four (24) hours from the time the industrial user becomes aware of the bypass. A written submission shall also be provided within five (5) days of the time the industrial user becomes aware of the bypass. The written submission shall contain a description of the bypass and its cause; the duration of the bypass, including exact dates and times, and, if the bypass has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent reoccurrence of the bypass. The Chief Executive Officer may waive the written report on a case by case basis if the oral report has been received within twenty four (24) hours.
C. General And Specific Violation Defenses: A user shall have an affirmative defense in any action brought against it alleging a violation of the general prohibitions in subsections 12.5.702H, I, and P of this article where the user can demonstrate that:
1. It did not know or have reason to know that its discharge, alone or in conjunction with an indirect discharge or indirect discharges from other sources, would cause pass-through or interference. The industrial user will need to submit data which supports this claim. Establishment of a prohibition, local limit or categorical standard for a parameter is considered notification to the industrial user that pass-through or interference is possible; and
2. A local limit designed to prevent pass-through and/or interference, as the case may be, was developed in accord with section 12.5.703 of this article for each pollutant in the user's discharge that caused pass-through or interference, and the user was in compliance with each local limit directly prior to and during pass-through or interference; or
3. If a local limit designed to prevent pass-through and/or interference, as the case may be, has not been developed in accord with section 12.5.703 of this article for the pollutant(s) that caused the pass-through or interference, and if the user's discharge directly prior to and during the pass-through or interference did not change substantially in nature or constituents from the user's prior discharge activity when the POTW was regularly in compliance with the POTW's permit requirements and, in the case of interference, applicable requirements for sewage sludge use or disposal. (Ord. 99-163; Ord. 01-42; Ord. 14-66; Ord. 18-42)
A. Authorization To Use Monies: The Chief Executive Officer is authorized to use administrative fines and civil penalties collected for the following purposes:
1. Money, awarded as damages to repair or replace damaged portions of the wastewater treatment system, shall be used to accomplish the measures for which the award was made.
2. Money awarded to reimburse the Chief Executive Officer for costs associated with any enforcement action, such as extra costs charges, attorney fees, court costs and expenses shall be returned to the Chief Executive Officer.
3. Money not awarded pursuant to subsections B1 and B2 of this section, shall be used for purposes determined at the discretion of the Chief Executive Officer. The purposes may include, but are not limited to, supplemental environmental projects and payments of fines and penalties paid by Utilities due to specific violations by the user(s).
B. Supplemental Environmental Projects (SEP): Subject to subsection A of this section, in the discretion of the Chief Executive Officer or any court when enforcement of this article results in administrative fines or civil penalties, some or all of the fine or penalty may be contributed to supplemental environmental projects meeting the following criteria:
1. The project is environmentally beneficial by improving, protecting, or reducing risks to the public health, or the environment at large.
2. The project is not otherwise legally required to be performed by any Federal, State or local law or requirement, or likely to be required as a result of the enforcement action to achieve compliance.
3. The project is not inconsistent with any environmental statute or regulation.
4. The project advances at least one of the objectives of the environmental statute that is the basis of the enforcement action. This can include projects which reduce the likelihood of similar violations in the future; or reduces the adverse impacts to the public health or the environment to which the violation at issue contributes; or the project reduces the overall risk to the public health or the environment potentially affected by the violation at issue.
5. The project is defined in the administrative or judicial order to specify the amount to be spent, by whom, by a date.
6. Utilities and the City may not play a role in managing or controlling funds used for performance of SEP, nor manage or administer the SEP. Utilities may perform oversight to ensure the SEP is implemented pursuant to the provisions of the administrative or judicial order and have legal recourse if the SEP is not adequately performed.
7. An SEP cannot be used to satisfy Utilities' legal obligations to perform a particular activity. (Ord. 99-163; Ord. 01-42; Ord. 10-82; Ord. 18-42)