Fontana Municipal Code Div. 2 Enforcement

Any person who, by discharge of wastewaters or by any other means, damages monitoring equipment, detrimentally affects wastewater treatment processes, significantly increases city operation costs, requires nonroutine inspection or sampling, causes blockages of, damage to, interference with or pass-through from the POTW, or causes any other damages, including the imposition of fines or penalties on the city by federal, state or local regulatory agencies, shall be liable to the city, as applicable, for all damages and additional costs, including the fines or penalties, occasioned thereby. An administrative fee, which shall be fixed by the city manager based on the city's current overhead cost allocation percentage, shall be added to these charges and shall be payable within 30 days of invoicing by the city.

(Ord. No. 1984, § 2(Exh. A), 3-10-26)

(a) Any industrial user who violates the following conditions or applicable state and federal regulations is subject to having his permit suspended or revoked:

(1) Failure of the user to factually report the wastewater constituents and characteristics of his discharge;

(2) Failure of the user to report significant changes in operations or wastewater constituents and characteristics prior to the changed conditions pursuant to section 23-198;

(3) Failure of the user to provide timely access to records or the user's premises;

(4) Failure to meet effluent limitations;

(5) Misrepresentation or failure to fully disclose all relevant facts in the wastewater discharge permit application;

(6) Falsifying self-monitoring reports and certification statements;

(7) Falsifying, tampering with, or knowingly rendering inaccurate any monitoring equipment or sample collection;

(8) Failure of the user to pay sewer service charges or pretreatment program fees;

(9) Failure to pay fines;

(10) Failure to meet compliance schedules;

(11) Failure to complete a wastewater survey or the wastewater discharge permit application;

(12) Failure to provide advance notice of the transfer of business ownership or a permitted facility; or

(13) Violation of a wastewater discharge permit, any provision of this article or order issued hereunder, or any other pretreatment standard or requirement.

(b) A user subject to termination may request an administrative hearing pursuant to section 23-21.

(Ord. No. 1984, § 2(Exh. A), 3-10-26)

(a) Whenever the public works director finds that any user has violated or is violating a wastewater discharge permit, any provision of this article or order issued hereunder, or any other pretreatment standard or requirement, the public works director may serve upon such user a written notice of violation stating the nature of the violation and stating the penalties for continued noncompliance. If required in the notice, the user shall submit to the public works director, within a prescribed period specified in the notice, which period shall not be less than 15 days unless an emergency situation dictates a shorter period, an explanation indicating the cause of the violation, a plan for satisfactory corrective and preventive actions, and, if required, a proposed compliance time schedule indicating the dates those corrective actions will be completed. Submission of such a plan in no way relieves the user of liability for any violations occurring before or after receipt of the notice of violation. The issuance of a notice of violation shall not be a prerequisite for the public works director to take any emergency action or other enforcement action.

(b) A compliance meeting may be required of all users who have failed to achieve compliance after the issuance of a notice of violation, or violation(s) resulting in significant noncompliance. This meeting shall be for the public works director to consider drafting a consent or compliance order and for the user to propose solutions, request time extensions, or file an appeal.

(Ord. No. 1984, § 2(Exh. A), 3-10-26)

The public works director may adopt a proposed compliance time schedule submitted by the user, or may adopt a revised compliance time schedule if, in the judgment of the public works director, the proposed compliance time schedule would allow the user to cause harm to the POTW or unreasonably or inequitably burden the operation of the POTW. The public works director will notify the user of the adopted compliance time schedule in a timely manner. The public works director shall not adopt a compliance time schedule which extends beyond applicable federal deadlines.

(Ord. No. 1984, § 2(Exh. A), 3-10-26)

The public works director may require compliance with this article, wastewater discharge permit conditions or limitations, or any other pretreatment standard or requirement by issuing administrative orders that are enforceable in a court of law or by directly seeking court action. Administrative orders may include stop work orders, cease and desist orders, consent orders, compliance orders, termination of sewer service and immediate termination of service orders.

(1) Stop work order. The building official or public works director may serve a written stop work order on any person engaged in doing or causing to be done new construction, tenant improvements, alterations or additions, if:

a. No permit has been granted by the city.

b. Work has begun without prior written approval by the public works director.

c. Violations of this article are found at the site of the new construction, tenant improvements, alterations or additions.

Any person served a stop work order shall stop such work forthwith until written authorization to continue is received from the public works director.

(2) Cease and desist order. When the public works director finds that any industrial user has violated or threatens to violate a wastewater discharge permit, any provision of this article or order issued hereunder, or any other pretreatment standard or requirement, or that the user's past violations are likely to recur, the public works director may issue a cease and desist order directing the user to:

a. Comply immediately with all requirements; or

b. Take such appropriate remedial or preventative action as may be needed to properly address a continuing or threatened violation, including halting operations or terminating the discharge.

A cease and desist order may include modifications in the frequency of monitoring, testing and submission of self-monitoring reports. Issuance of a cease and desist order shall not be a bar against, or a prerequisite for, taking any other action against the user.

(3) Consent order. The public works director may enter into consent orders, assurances of compliance, or other documents establishing an agreement with any user responsible for noncompliance. Such document shall include specific action to be taken by the user to correct the noncompliance within a time period specified by the document.

(4) Compliance order. When the public works director finds that a user has violated, or continues to violate a wastewater discharge permit, any provision of this article or order issued hereunder, or any other pretreatment standard or requirement, the public works director may issue an order to the user responsible for the discharge directing that the user come into compliance within a specified time. If the user does not come into compliance within the time provided, sewer service may be discontinued unless adequate treatment facilities, devices, or other related appurtenances are installed and properly operated. Compliance orders also may contain other requirements to address the noncompliance, including additional self-monitoring and management practices designed to minimize the amount of pollutants discharged to the sewer. A compliance order may not extend the deadline for compliance established for a pretreatment standard or requirement, nor does a compliance order relieve the user of liability for any violation, including any continuing violation. Issuance of a compliance order shall not be a bar against, or a prerequisite for, taking any other action against the user.

(5) Termination of service. When the public works director finds that any industrial user has violated an administrative order, the public works director may terminate sewer service to that user. The user shall be liable for all costs for termination of sewer service incurred by the user and the city. This provision is in addition to other statutes, rules or regulations authorizing termination of service for delinquency in payment, or for any other reason. Sewer service shall be reinstituted by the public works director after the user has complied with all provisions in the administrative order. The user shall be liable for all costs for reinstituting sewer service.

(6) Immediate termination of service. The public works director may immediately suspend sewer service and any wastewater discharge permit when such suspension is necessary, in the opinion of the public works director, to stop an actual or threatened discharge which presents or may present an imminent or substantial endangerment to the health or welfare of persons or the environment, or which significantly interferes with the POTW. Any industrial user notified that wastewater treatment service and any wastewater discharge permit has been suspended shall immediately stop and eliminate the applicable contributions to the POTW. In the event of failure to comply voluntarily with the suspension order, the public works director shall take steps as deemed necessary, including immediate severance of the sewer connection. The industrial user shall be liable for all costs incurred by the city in terminating sewer service. Sewer service shall be reinstituted by the public works director after the actual or threatened discharge has been eliminated. A detailed written statement, submitted by the industrial user, describing the causes of the harmful contribution and the measures taken to prevent any future occurrence shall be submitted to the public works director within 15 days of the date of sewer service termination.

(7) Invoice for costs. The public works director may deliver to the owner or occupant of any property, any permittee or any other person who becomes subject to an administrative order, an invoice for costs. An invoice for costs is immediately due and payable to the city for the actual costs incurred by the city in issuing and enforcing any notice or order, including any costs incurred by the city to prevent, contain and/or clean up any potential or actual prohibited discharge. If any owner or occupant, permittee or any other person subject to an invoice for costs fails to either pay the invoice for costs or successfully appeal the invoice for costs in accordance with section 23-21, then the enforcing attorney may institute collection proceedings.

(Ord. No. 1984, § 2(Exh. A), 3-10-26)

In accordance with 40 CFR 403.8(f)(2)(viii), the city shall publish annually in a newspaper of general circulation that provides meaningful public notice within the jurisdictions served by the city and applicable control authority, a list of the users which, at any time during the previous 12 months, were in significant noncompliance with applicable pretreatment standards and requirements. Prior to publication, the city shall provide at least ten days' written notice to all industrial users to be included in the listing, and such industrial users shall be given the opportunity to comment on the proposed publication prior to publication. The term significant noncompliance shall be applicable to all significant industrial users (or any other industrial user that violates subsections (3), (4), or (8) of this section) and shall mean:

(1) Chronic violations of wastewater discharge limits, defined here as those in which 66 percent or more of all the measurements taken for the same pollutant parameter taken during a six month period exceed (by any magnitude) a numeric pretreatment standard or requirement, including instantaneous limits, as defined in by 40 CFR 403.3(l);

(2) Technical review criteria (TRC) violations, defined here as those in which 33 percent or more of wastewater measurements taken for each pollutant parameter during a six month period equals or exceeds the product of the numeric pretreatment standard or requirement, including instantaneous limits, as defined by 40 CFR 403.3(l), multiplied by the applicable criteria (1.4 for BOD, TSS, fats, oils and grease, and 1.2 for all other pollutants except pH);

(3) Any other violation of a pretreatment standard or requirement, as defined by 40 CFR 403.3(l) (daily maximum, long term average, instantaneous limit, or narrative standard), that the public works director determines has caused, alone or in combination with other discharges, interference or pass-through, including any violation that has endangered the health of POTW personnel or the general public;

(4) Any discharge of a pollutant that has caused imminent danger to the public or to the environment, or has resulted in the public work director's exercise of his or her emergency authority to halt or prevent such a discharge;

(5) Failure to meet, within 90 days of the scheduled date, a compliance schedule milestone contained in a wastewater discharge permit or enforcement order for commencing construction, completing construction, or attaining final compliance;

(6) Failure to provide within 45 days after the due date any required reports, including baseline monitoring reports, reports on compliance with categorical standard deadlines, periodic self-monitoring reports, and reports on compliance with compliance schedules;

(7) Failure to accurately and timely report noncompliance; or

(8) Any other violation(s), which may include a violation of best management practices, that the public works director determines will adversely affect the operation or implementation of the city's pretreatment program.

(Ord. No. 1984, § 2(Exh. A), 3-10-26)

(a) If a person violates a wastewater discharge permit, any provision of this article or order issued hereunder, or any other pretreatment standard or requirement, the city attorney may commence an action for appropriate legal, equitable or injunctive relief in the superior court of the county. Filing a suit shall not be a bar against, or a prerequisite for, taking any other action against a user.

(b) In addition to the penalties provided in this article, the city may recover reasonable attorney fees, court costs, court reporters' fees and other expenses associated with enforcement activities by appropriate suit of law.

(Ord. No. 1984, § 2(Exh. A), 3-10-26)

Any industrial user who is found to have violated a wastewater discharge permit, any provision of this article or order issued hereunder, or any other pretreatment standard or requirement may be fined no more than a maximum civil penalty of $25,000.00 per violation per day. Each violation shall be considered a separate and distinct offense, and each day on which a violation shall occur or continue shall be deemed a separate and distinct offense. In the case of a monthly or other long-term average discharge limit, penalties shall accrue for each day during the period of the violation.

(Ord. No. 1984, § 2(Exh. A), 3-10-26)

Any person who (a) willfully or negligently violates a wastewater discharge permit, any provision of this article or order issued hereunder, or any other pretreatment standard or requirement; (b) who willfully or negligently introduces any substance into the POTW which causes personal injury or property damage; (c) who knowingly makes any false statements, representation or certification in any application, record, report, plan or other document filed or required to be maintained pursuant to this article or a wastewater discharge permit; or who falsifies, tampers with or knowingly causes inaccuracy in any monitoring device or method required or authorized under this article is guilty of a misdemeanor, which, upon conviction, is punishable by a fine not to exceed $1,000.00 or by imprisonment for a period of not more than six months, or by both such fine and imprisonment. Each such person shall be deemed guilty of a separate offense for every day during any portion of which any violation of any provision of this article is committed, continued or permitted by such person, and shall be punishable for that violation as provided by this section.

(Ord. No. 1984, § 2(Exh. A), 3-10-26)

(a) In addition to any other remedies provided by this Code or available to the city by applicable law, the public works director may issue an administrative complaint to any person who violates a wastewater discharge permit, any provision of this article or order issued hereunder, or any other pretreatment standard or requirement. The administrative complaint shall allege the act or failure to act that constitutes the violation, the provisions of law authorizing civil liability to be imposed, and the proposed administrative penalty.

(b) The administrative complaint shall be served by personal delivery or certified mail on the person subject to the city's discharge requirements and shall inform the person served that an administrative hearing shall be conducted. The administrative hearing and appeal procedures shall be consistent with section 23-21. The person who has been issued an administrative complaint may waive the right to a hearing, in which case the city shall not conduct a hearing.

(c) If after the hearing, or appeal, if any, the hearing officer or city manager upholds the violation, the hearing officer or city manager may assess an administrative penalty against that person. In determining the amount of the administrative penalty, the hearing officer or city manager 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 discharger.

(d) Administrative penalties may be imposed by the city as follows:

(1) In an amount that shall not exceed $2,000.00 for each day for failing or refusing to furnish technical or monitoring reports.

(2) In an amount that shall not exceed $3,000.00 for each day for failing or refusing to timely comply with any compliance schedule established by the city.

(3) In an amount that shall not exceed $5,000.00 per violation for each day for discharges in violation of any provision of this article, wastewater discharge permit, or any other pretreatment standard or requirement.

(4) In an amount that does not exceed $10.00 per gallon for discharges in violation of any suspension, cease and desist order or other orders.

(5) The amount of any administrative penalties imposed under this section which have remained delinquent for a period of 60 days shall constitute a lien against the real property of the discharger from which the discharge originated resulting in the imposition of the administrative penalty. The lien provided herein shall have no force and effect until recorded with the county recorder and when recorded shall have the force and effect and priority of a judgment lien and continue for ten years from the time of recording unless sooner released, and shall be renewable in accordance with the provisions of the California Code of Civil Procedure §§ 683.110 to 683.220, inclusive.

(e) All monies collected under this section shall be deposited in a special account of the city and shall be made available for the monitoring, treatment, and control of discharges into the sewer system or for other mitigation measures.

(f) Unless appealed, orders setting administrative penalties shall become effective and final upon issuance thereof, and payment shall be made within 30 days. Copies of these orders 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 and requested a copy. Such service shall be accompanied by a written affidavit of service.

(g) The city may, at its option, elect to petition the superior court to confirm any order establishing administrative penalties and enter judgment in conformity therewith in accordance with the provisions of the Code of Civil Procedure §§ 1285 to 1287.6, inclusive.

(h) No penalties shall be recoverable under this section for any violation for which civil liability is recovered under section 23-89.

(Ord. No. 1984, § 2(Exh. A), 3-10-26)

(a) Penalties for late reports. Penalties may be assessed to any user for each day that a report required by this article, a permit or order issued hereunder is late, beginning five days after the date the report is due and higher penalties may also be assessed where reports are more than 30 days late. Penalties shall be in accordance with a resolution established and modified from time to time by the city council.

(b) Performance bonds. The public works director may decline to issue or reissue a wastewater discharge permit to any user who has failed to comply with any provision of this article, a previous wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or requirement, unless such user first files a satisfactory bond, payable to the city, in a sum not to exceed a value determined by the public works director to be necessary to achieve consistent compliance.

(c) Liability insurance. The public works director may decline to issue or reissue a wastewater discharge permit to any user who has failed to comply with any provisions of this article, a previous discharge permit, or order issued hereunder, or any other pretreatment standard or requirement, unless the user first submits proof that it has obtained financial assurances sufficient to restore or repair damage to the POTW caused by its discharge.

(d) Payment of outstanding fees and penalties. The public works director may decline to issue or reissue a wastewater discharge permit to any user who has failed to pay any outstanding fees, fines or penalties incurred as a result of any provision of this article, a previous wastewater discharge permit, or order issued hereunder.

(Ord. No. 1984, § 2(Exh. A), 3-10-26)

The remedies provided in this article are not exclusive. The public works director may take any, all, or any combination of these actions against a noncompliant user. The public works director is empowered to take more than one enforcement action against any noncompliant user.

(Ord. No. 1984, § 2(Exh. A), 3-10-26)