Hayward Municipal Code Ch. 7 Abatement

7.01 Public Nuisance. Discharge of wastewater in any manner in violation of these regulations or of any order issued by the Manager as authorized by these regulations, is hereby declared a public nuisance and shall be corrected or abated as directed by the Manager. Any person creating a public nuisance shall be subject to provisions of City codes or ordinances governing such nuisance.

7.02 Injunction. The City may petition the superior court for the issuance of preliminary or permanent injunctive relief, or both, as may be appropriate, for noncompliance by users with pretreatment standards and requirements. Noncompliance relates both to discharge and non-discharge violations.

7.03 Damage to Facilities. When a discharge of wastes causes an obstruction, damage, or any other impairment to City facilities, the City may assess a charge against the user for the work required to clean or repair the facility and add such charge to the user's charges and fees.

7.04 Civil Penalties. Any person who violates any provision of these regulations or permit conditions, or who discharges wastewater which causes pollution, or who violates any cease and desist order, prohibition, effluent limitation, national performance, pretreatment or toxicity standard, shall be liable civilly to penalties imposed by the City for the violation(s). The City Attorney, upon order of the City Council, shall petition the superior court to impose, assess, and recover such sums as may be applicable. In addition, the City may refer any violations of these regulations to the office of the Alameda County District Attorney for civil prosecution under any applicable statute or provision of law.

7.05 Criminal Penalties. Any person who violates any provision of these regulations, or of a permit or a cease and desist order issued pursuant to these regulations, is guilty of a public offense. The classification of such public offense and the punishment therefor shall be as provided by regulations of the City.

7.06 Falsifying Information. Any person who knowingly makes any false statement, representation, record, report, plan, or other document filed with the City, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required under these regulations, shall be punished in accordance with the City codes or ordinances governing such falsifications. The City Attorney, upon order of the City Council, shall petition the Superior Court to impose, assess, and recover such sums as may be applicable.

7.07 Termination of Service. The City may revoke any Wastewater Discharge Permit, or terminate or cause to be terminated wastewater service to any premises, if a violation of any provision of these regulations is found to exist or if a discharge of wastewater causes or threatens to cause a condition of contamination, pollution, or nuisance as defined in these regulations. Furthermore, whenever any discharge of wastewater is deemed by the City to be an imminent and significant threat to the operation of the wastewater treatment plant, the health and safety of City personnel or the public, or the quality of the waters of the state, the City may, without prior notice and by whatever means or combination of means available, terminate wastewater service to any premises. This provision is in addition to other statutes, rules, or regulations, authorizing termination of service for delinquency in payment.

7.08 Legal Authority to Protect POTW. In accordance with section 54739 of the California Government Code, the City may require any of the following:

(a) Pretreatment of any industrial waste which the City determines is necessary in order to meet standards established by the federal or California state government or other regulatory agencies or which the City determines is necessary in order to protect its treatment works or the proper and efficient operation thereof or the health and safety of its employees or the environment.

(b) The prevention of the entry of such industrial waste into the collection system and treatment works.

(c) The payment of excess costs incurred by the City as a result of entry of such industrial waste into the collection system and treatment works.

7.09 Administrative Fine Procedure.

(a) In accordance with section 54740.5 of the California Government Code, the City may issue an administrative complaint to any person who violates any requirement adopted or ordered by the City pursuant to paragraphs (a) and (b) of Section 7.08. The administrative complaint shall allege the act or failure to act that constitutes the violation of the City's requirements, the provisions of law authorizing civil liability to be imposed, and the proposed civil 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 a hearing shall be conducted within 60 days after the person has been served. The hearing shall be before the Manager or his or her designee, hereafter "hearing officer". 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. A person dissatisfied with the decision of the hearing officer may appeal to the City Council within 30 days of notice of the hearing officer's decision.

(c) If after the hearing or appeal it is found that the person has violated reporting or discharge requirements, the hearing officer may assess a civil penalty against that person. In determining the amount of the civil penalty, the hearing officer or City Council 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) Civil penalties may be imposed by the City as follows:

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

(2) In an amount which shall not exceed three thousand dollars ($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 which shall not exceed five thousand dollars ($5,000.00) per violation for each day for discharges in violation of any waste discharge limitation, permit condition, or requirement issued or adopted by the City.

(4) In an amount which does not exceed ten dollars ($10.00) per gallon for discharges in violation of any suspension, cease and desist order or other orders, or prohibition issued, reissued, or adopted by City.

(5) The amount of any civil penalties imposed under this section which have remained delinquent for a period of sixty (60) days shall constitute a lien against the real property of the discharger from which the discharge originated resulting in the imposition of the civil 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 (10) years from the time of recording unless sooner released and shall be renewable in accordance with the provisions of sections 683.110 to 683.220, inclusive, of the Code of Civil Procedure.

(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 City's sewer system or for other mitigation measures.

(f) Unless appealed, orders setting administrative civil penalties shall become effective and final upon issuance thereof, and payment shall be made within thirty (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.

(g) The City may, at its option, elect to petition the Superior Court to confirm any order establishing civil penalties and enter judgment in conformity therewith in accordance with the provisions of sections 1285 to 1287.6, inclusive, of the Code of Civil Procedure.

(h) No penalties shall be recoverable under this section for any violation for which civil liability is recovered under Section 7.04.

(i) Any party aggrieved by a final order issued by the City Council under this section, after granting review of the order of a hearing officer, may obtain review of the order of the Council in the Superior Court by filing in the court a petition for writ of mandate within 30 days following the service of a copy of the decision and order issued by the Council. Any party aggrieved by a final order of a hearing officer issued under this section, for which the Council denies review, may obtain review of the order of the hearing officer in the Superior Court by filing in the court a petition for writ of mandate within 30 days following service of a copy of a decision and order denying review of the Council.

(j) If no aggrieved party petitions for writ of mandate within the time provided by this section, an order of the Council or a hearing officer shall not be subject to review by any court or agency, except that the Council may grant review on its own motion of an order issued under this section after the expiration of the time limits set by that section.

(k) The evidence before the court shall consist of the record before the Council, including the hearing officer's record, and any other relevant evidence which, in the judgment of the court, should be considered to effectuate and implement policies of Title 5, Division 2 of the Government Code. In every such case the court shall exercise its independent judgment on the evidence.

(l) Except as otherwise provided in this section, subdivisions (e) and (f) of section 1094.5 of the California Code of Civil Procedure shall govern proceedings pursuant to this section.