Lakeport Municipal Code Art. V Enforcement

It is the intent of this article to provide adequate mechanisms to achieve a maximum degree of compliance with this chapter by all users. These enforcement provisions apply to all classes of users to the extent such user violates any provision of this chapter or administrative order of the CLMSD pursuant to this chapter. In order to achieve the maximum degree of compliance desired, the CLMSD will use a variety of enforcement mechanisms. The enforcement mechanisms set forth range from informal administrative action to formal criminal prosecution. The CLMSD may, in its discretion, implement the use of any mechanism or the concurrent use of several mechanisms in order to enforce the provisions of this chapter. The enforcement mechanisms provided herein may be cumulative in respect to such other enforcement mechanisms or civil and criminal penalties as may be otherwise available under the laws of the state of California and the United States of America. Nothing in this chapter is intended to prevent state and/or federal regulatory agencies from undertaking enforcement actions as may otherwise be available due to a violation of this chapter which also constitutes a violation of state and/or federal statutes and regulations.

The enforcement mechanisms available to the CLMSD for violations of the provisions of this chapter, applicable CLMSD resolutions and permit provisions are the following:

A. Informal administrative action (including notices of violation and warning notices).

B. Administrative orders, compliance schedules, and other reports.

C. Imposition of fines and fees for noncompliance with permit requirements.

D. Imposition of penalties for noncompliance with administrative orders.

E. Assessment of charges for obstruction or damage to CLMSD facilities or operations.

F. Suspension or termination of services.

G. Civil action.

H. Criminal action.

(Ord. 872 § 6.1, 2008)

CLMSD staff may, on an informal basis, take action against a user for minor violations or technical or clerical shortcomings of a user or a user's compliance submittals. These informal administrative actions may include informal notices (i.e., telephone calls to the user's representative), notices of violation (NOVs), informal meetings or warning letters. Such action will not prevent a subsequent or concurrent imposition of noncompliance fees or other enforcement mechanisms.

(Ord. 872 § 6.2, 2008)

When the CLMSD finds that a user has violated the prohibitions or requirements of this chapter, or the provisions of a wastewater discharge permit, or applicable state or federal regulations, the CLMSD may issue an administrative order directed at those users not complying with such prohibitions, limitations, requirements or provisions to (A) cease to discharge immediately (suspension of service); (B) comply with requirements immediately; or (C) make such changes to their pretreatment facility and procedures immediately as to ensure full compliance.

The CLMSD may also issue, under the circumstances set forth above, an order containing a compliance schedule or a time schedule setting forth dates by which specific corrective actions must be completed. Any user subject to a compliance schedule shall submit to the CLMSD, for each compliance step in the schedule, a report stating whether or not compliance was achieved. Where compliance is not achieved, the report must state the reasons for noncompliance, steps being taken to comply with the schedule, and the date when compliance with the increment in question is expected. Each report must be submitted not later than fourteen days after the date of the compliance step specified in the compliance schedule.

All users shall submit to the CLMSD any other reports as deemed reasonable and necessary by the CLMSD, in addition to those described above, to demonstrate compliance with this chapter, their wastewater discharge permit, or any applicable state or federal regulations. Such reports include, but are not limited to, any reports or plans required by state, federal or local laws or regulations, including this chapter.

(Ord. 872 § 6.3, 2008)

A. Noncompliance Fees for Pollutant Limitation Violations. If a periodic compliance sampling performed by the user or the CLMSD reveals noncompliance by the user with the prohibitions or specific pollutant limitations contained in this chapter, the permit, or resolutions by the CLMSD board, or which violates specific national pretreatment standards or state standards on discharges, then the user is liable for fees of up to one thousand dollars for each day of violation per violation. The purpose of these fees is to compensate the CLMSD for additional costs of sampling, monitoring, laboratory analysis, treatment, disposal and administrative processing incurred as a result of the noncompliance. These fees will be in addition to, and not in lieu of, any penalties as may be assessed pursuant to Sections 13.20.450, 13.20.460 and 13.20.470.

1. For the purpose of this section, a fee of three hundred dollars shall be imposed for each violation of the constituent limit for the first violation of that constituent limit during the term of the permit.

2. Second or subsequent violations of this same constituent limit during the term of the permit may result in increased fees for each violation of the constituent limit resulting from a single day's sample. The maximum fee which shall be imposed for multiple violations of any constituent limits from a single day's sample, where one or more of the individual constituent violations constitute second or subsequent violations of that constituent, shall be one thousand dollars per day.

3. Whenever periodic compliance samples or the CLMSD unannounced samples indicate a significant noncompliance (SNC), the CLMSD may undertake a sample and evaluation program. This program will consist of CLMSD sampling of the user's wastewater at the first opportunity convenient to the CLMSD. Daily samples may be taken each day for up to five days. The CLMSD or outside laboratory will analyze these samples for the violating constituents and provide notice to the user in regard to the results of said sampling. Violations that may occur during the sample and evaluation program shall constitute subsequent violations under this chapter or under any applicable law.

4. In the event a sampling and evaluation program indicates a need for corrective actions to be undertaken, the CLMSD may place the user on a compliance schedule or undertake another sampling and evaluation program. A compliance schedule shall provide for minimum required actions to be undertaken by the user to alleviate the violation and a schedule for completion of said actions. This compliance schedule may include interim constituent level maximums. All violations of constituent maximums or other requirements set forth in the compliance schedule, including failure to meet schedule dates, shall subject the violator to a fee of one thousand dollars per violation. Each day in which the user fails to meet a schedule date may, in the discretion of the CLMSD, constitute a separate violation. Any violation of a constituent limit during the compliance schedule period may also result in the implementation of an additional sample and evaluation program.

B. In addition to the penalty fees set forth in subsection A of this section, a significant violation of the discharge standard may result in the immediate termination of the user's permission to discharge, at the discretion of the CLMSD. The termination of permission to discharge may be for a set period or for the entire remaining term of the permit, at the discretion of the CLMSD. Any violation of the discharge standards where a constituent concentration is determined to be five times the concentration standard set forth in Appendix A, attached to the ordinance codified in this chapter, shall be determined to be a significant violation. Any series of three or more violations of the same constituent within a one-year period shall constitute a significant violation.

C. Preliminary Determination of Noncompliance with Permit Requirements. Noncompliance with permit discharge requirements may be determined by an analysis of a sample of the effluent of a user for a constituent or condition specified in the user's permit. If the effluent of a user is found by the analysis of the sample to be in excess of the concentrations or conditions specified in the permit, or concentrations or conditions incorporated by reference therein, noncompliance fees as set forth in subsection A of this section shall be levied. The user shall notify the CLMSD, as specified in Section 13.20.480(B), of the violation and shall collect a second sample of the effluent for analysis. Pursuant to Section 13.20.320(A)(5), the user shall provide the CLMSD with the results of the second sample within thirty days of the date the violation was discovered. If the second sample reveals noncompliance, then the sampling and evaluation program may be initiated by the CLMSD.

D. Sampling and Evaluation Program.

1. If the sampling and evaluation program (SEP) reveals noncompliance by the user with the prohibitions or specific pollutant limitations specified in this chapter or in the user's permit, the user shall pay fees as specified above and may be assessed all other costs incurred during the SEP for sampling and analysis, including labor, equipment, materials, outside services and overhead.

2. If noncompliance by the user with the prohibitions or limitations of this chapter or of the user's permit is determined following the initiation of an SEP, the CLMSD may implement one of the following enforcement actions:

a. Amend the existing permit through an enforcement compliance schedule agreement (ECSA). This may be done after consultation with the user and when the user has shown good faith in trying to comply but requires additional time for construction and/or acquisition of equipment related to pretreatment. The permit may be amended with the ECSA for a period up to one hundred eighty days; however, this period may be extended for a period not to exceed an additional one hundred eighty days upon determination by the CLMSD director that good cause exists for an additional period. No further extensions shall be granted except upon approval of the CLMSD board.

b. If a user remains in noncompliance because corrective action is not taken within a reasonable time after completion of the SEP or the expiration of the ECSA, then an administrative order may be issued. Additionally, any of the other enforcement actions as outlined in this chapter may also be commenced. The payment of noncompliance fees will not bar the CLMSD from undertaking such enforcement procedures as are otherwise set forth herein.

(Ord. 872 § 6.4, 2008)

When a user's discharge, whether due to negligence, accident, spill or otherwise, causes an obstruction, damage or any other impairment to CLMSD operation or facilities, the CLMSD may impose a charge on the user for the cost to clean or repair the facility, or costs incurred to resume normal operations. An administrative service fee of twenty-five percent of the CLMSD costs may be added to these charges. The total amount shall be paid within thirty days of invoicing by the CLMSD. If it can be shown that the user's discharge caused or significantly contributed to the CLMSD violating its discharge requirements or incurring additional expenses or suffering loss or damage to the operation or facilities, then the user shall be responsible for any costs or expenses, or a prorated portion of such expenses, including assessments or penalties imposed by other agencies or the court on the CLMSD.

(Ord. 872 § 6.5, 2008)

A. Suspension of Service. The CLMSD may suspend the wastewater treatment service and/or a wastewater discharge permit by issuance of a cease and desist order when the CLMSD makes the determination that such suspension is necessary. A suspension shall be justified in order to prevent an actual or threatened discharge which presents, or may present, an imminent or substantial endangerment to the health or welfare of individuals or the environment, causes or may cause interference to the treatment plant or other CLMSD operations, or causes or may cause the CLMSD to violate any condition of its NPDES permit. Additionally, a permit may be suspended for any of the conditions justifying revocation of permit as set forth in subsection B of this section. Nothing in this subsection shall limit the rights of the CLMSD to suspend or terminate service pursuant to specific permit conditions which may be more stringent.

The CLMSD may take steps to immediately halt or prevent a discharge that threatens the health and welfare of individuals. Any user notified of a suspension of service and/or the wastewater discharge permit shall immediately stop or eliminate the discharge. In the event of a failure of the user to comply voluntarily with the administrative order, the CLMSD will take such steps as deemed necessary to prevent or minimize damage to CLMSD facilities or endangerment to persons or the environment. The CLMSD may reinstate the wastewater discharge permit and/or the wastewater treatment service upon proof of the elimination of the noncomplying discharge.

B. Revocation of Permit. Any user who violates the following conditions is subject to having its permit revoked:

1. Any user who knowingly gives or provides a false statement, representation, record, report, plan or other document to the CLMSD or falsifies, tampers or knowingly renders inaccurate any monitoring device or method required under Section 13.20.320;

2. Failure of a user to factually and completely report the wastewater constituents and characteristics of his/her discharge;

3. Failure of the user to report significant changes in operations, or wastewater constituents and characteristics;

4. Refusal of reasonable access to the user's premises for the purpose of inspection or monitoring;

5. Failure of a user to notify the CLMSD immediately of accidental discharge and/or take appropriate corrective action to prevent a recurrence;

6. Failure of a user to file a periodic compliance report in such time and in such manner as is required by this chapter;

7. Significant violation(s) of the permit requirements or conditions and/or violation of this chapter. Any violation of discharge standards where a constituent concentration is determined to be five times the limit for that constituent or any series of three or more violations of the same constituent within a one-year period shall constitute a significant violation;

8. Failure to pay fees and charges, including noncompliance fees or other penalties established pursuant to this chapter.

C. Immediate Termination of Discharge. In the case of an actual or threatened discharge which reasonably appears to present an imminent danger to the health or welfare of persons, the CLMSD may, after reasonably attempting to informally notify the user, take all necessary steps to halt or prevent such discharge including but not limited to the disconnection of the user's water service, the disconnection of the user's access to CLMSD facilities and all associated punitive actions described in the most recent edition of the California Building Code.

(Ord. 872 § 6.6, 2008)

Pursuant to the authority of California Government Code Sections 54739 through 54740.6, the CLMSD or CLMSD staff may issue administrative complaints, conduct administrative hearings and/or impose civil penalties in accordance with the procedures set forth in these sections for violation of the CLMSD requirements relating to pretreatment of industrial waste or the prevention of the entry of industrial waste into the CLMSD collection system or treatment works. These penalties shall be as follows:

A. In an amount which shall not exceed two thousand dollars for each day for failing or refusing to furnish technical or monitoring reports.

B. In an amount which shall not exceed three thousand dollars for each day for failing or refusing to timely comply with any compliance schedule established by the CLMSD.

C. In an amount which shall not exceed five thousand dollars per violation for each day for discharges in violation of any waste discharge limitation, permit condition, or requirement issued, reissued, or adopted by the CLMSD.

D. In an amount which shall not exceed ten dollars per gallon for discharges in violation of any suspension, cease and desist order or other orders, or prohibition issued, reissued, or adopted by the CLMSD.

(Ord. 872 § 6.7, 2008)

The CLMSD board may direct the city of Lakeport council or other special council to bring such civil actions as may be available by law or in equity in any court of competent jurisdiction to enforce the provisions of this chapter and to recover such charges, fees, penalties and/or damages as may be assessed or may be incurred under the provisions of this chapter.

A. Injunction. Whenever a discharge of wastewater is in violation of or has the reasonable potential to violate any provision of this chapter, permit condition, or any federal pretreatment standard and requirement as set forth in 40 CFR Section 403.8 et seq., or user fails to submit required reports, or refuses to allow the CLMSD entry to inspect or monitor the user's discharge, the CLMSD may petition the superior court for the issuance of a preliminary or permanent injunction, or both, as may be appropriate to restrain the continued violation or to prevent threatened violations by the user.

B. Civil Actions for Penalties. Any user who violates any provision of this chapter, permit condition, cease and desist order, prohibition or effluent limitation shall be liable civilly for a penalty not to exceed twenty-five thousand dollars for each day in which such violation occurs pursuant to California Government Code Section 54740. The CLMSD council, or other special council designated by the board, upon order of the CLMSD board, will institute such actions as may be appropriate in the superior court to impose, assess and recover such sums.

C. Other Civil Actions. The CLMSD may require compliance with permit conditions or limitations by issuing administrative orders, including cease and desist orders, and compliance schedules. Said orders are enforceable in a California court of general jurisdiction. The CLMSD, however, may directly undertake any court action available by law or equity, including but not limited to a civil action for penalties, without first seeking an administrative order or making use of a compliance schedule, and it may concurrently undertake such administrative and court actions as deemed appropriate.

(Ord. 872 § 6.8, 2008)

A. General Criminal Penalties. Any person who violates any provision of this chapter, permit, administrative order, prohibition or effluent limitation is guilty of a misdemeanor, and upon conviction is punishable by a fine of one thousand dollars per day per violation or imprisonment of up to thirty days in the county jail, or both. Each day a violation occurs may constitute a new and separate offense and may subject the violator to an additional full measure of penalties as set forth herein.

B. Falsifying Information. Any person who knowingly makes any false statements, representations, or certification in any application, record, report, plan or other document filed or required to be maintained pursuant to this chapter, or wastewater discharge permit, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required under this chapter, shall upon conviction be punished by a fine of not more than one thousand dollars or imprisonment for not more than thirty days in the county jail, or both. Each separate act of falsification, tampering, or knowingly rendering inaccurate information shall constitute a new and separate offense and shall be subject to the penalties contained herein.

Nothing in this section is intended to exclude the potential for prosecution under the applicable perjury statutes of the state of California to the extent such falsification was incorporated in a document signed under the penalty of perjury.

(Ord. 872 § 6.9, 2008)

A. Notification to User. Whenever the CLMSD finds that any user has violated or is violating the provisions of this chapter, a wastewater discharge permit, or any prohibition, limitation or requirements contained herein, the CLMSD may serve upon such person a written notice stating the nature of the violation. Within thirty days of the date of this notice, a plan for the satisfactory correction of the violation shall be submitted to the CLMSD by the user. Failure to respond to the violation shall be considered a separate violation.

Whenever the CLMSD assesses a noncompliance fee, penalty or other form of enforcement action under the provisions of this chapter, the CLMSD will serve upon such user a written notice stating the nature of the enforcement action being taken.

B. Notification to CLMSD. When a user discovers that he has violated or is violating a provision of this chapter, wastewater discharge permit, or any prohibition, limitation or requirement contained therein, including a violation as may be caused by accidental discharge or spill, the user shall immediately notify the CLMSD upon discovery of such violation. Thereafter, within five days following the accidental discharge or discovery of a violation, the user shall submit to the CLMSD a detailed, written report, describing the accidental discharge or violation, and the measures taken by the user to prevent similar future occurrences. This written report regarding the violation may be included as a part of a periodic compliance report, or other report as may be required under this chapter, as long as the written report is provided within five days of discovery. Said notification shall not relieve the user of any expense, penalty, fee or other liability which may be incurred as a result of the violation.

(Ord. 872 § 6.10, 2008)

All costs associated with the CLMSD undertaking enforcement actions pursuant to this chapter, including attorney's fees for civil actions undertaken, shall be paid by the user. These costs may include, but not be limited to, the costs for termination of service, reinstatement of service, compliance sampling and analysis and administrative activities undertaken by the CLMSD. However, if the user prevails in an appeal to the CLMSD board or a civil action taken to nullify an enforcement action pursued by the CLMSD under this chapter, the user shall not be responsible for the costs incurred by the CLMSD in pursuing said enforcement action.

(Ord. 872 § 6.11, 2008)

Any violation of pretreatment requirements, including limits, sampling, analysis, reporting and meeting compliance schedules, and regulatory deadlines, is an instance of noncompliance for which the industrial user is liable for enforcement including penalties. The CLMSD is required to identify violations or patterns of violations by industrial users that are deemed to be instances of significant noncompliance (SNC). To the extent that a violation or pattern of violations is determined to be SNC, the CLMSD will give additional priority to enforcement actions with regard to that industrial user. Additionally, the determination of SNC will be used as the basis for reporting same to the regulatory authorities and the publishing of the list of users who are in significant noncompliance as is required of the CLMSD by law. The following are criteria for significant noncompliance which will be used in determining instances of SNC.

A. Violations of Wastewater Discharge Limits.

1. Chronic Violations. Chronic violations shall be deemed to be present when sixty-six percent of all the measurements taken during a six-month period exceed the daily maximum limit or the average limit for the same parameter (any magnitude of exceedence).

2. Technical Review Criteria Violations. A technical review criteria (TRC) violation occurs if at least thirty-three percent of all the measurements taken for each pollutant parameter during a six-month period equal or exceed the product of the daily maximum limit or the average limit multiplied by the TRC. "TRC" is defined as 1.4 for BOD, TSS, fats, oil and grease and 1.2 for all other pollutants except pH.

3. Other Effluent Limit Violations. Any other violation(s) of an effluent limit (average or daily maximum) that the CLMSD determines has caused, alone or in combination with other discharges, interference (e.g., slug discharges) or pass-through (including adverse effect on any toxicity testing); or endangered the health of CLMSD facilities, personnel or the general public.

4. Danger to Human Health or Welfare. Any discharge of a pollutant that has caused imminent endangerment of human health/welfare or of the environment and has resulted in the exercise of CLMSD emergency authority to immediately halt or prevent such a discharge.

B. Violation of Compliance Milestones. Failure to meet any compliance schedule milestone, contained in any order given to the user by the CLMSD, including an ECSA for starting and completing construction, or attainment of final compliance, by ninety days or more after scheduled date shall result in additional enforcement mechanisms including a suspension or termination of service and/or civil action.

C. Failure to Provide Proper Data. Failure to provide reports for compliance schedules, self-monitoring data, or categorical standards (baseline monitoring reports, ninety-day compliance reports, and periodic reports) within thirty days after the date such reports or other data are due shall result in an imposition of fines and fees for noncompliance as described in Section 13.20.420.

D. Failure to Accurately Report. Failure of a user to accurately and promptly report any noncompliance, and any attempt to circumvent the reporting requirements or otherwise withhold noncompliance data from the CLMSD shall result in an imposition of fines and fees for noncompliance as described in Section 13.20.420.

E. Other Violations. Any other violation or group of violations that the CLMSD determines may adversely affect its operations or the accomplishment of the objectives of this chapter shall result in administrative action as described in this article.

(Ord. 872 § 6.12, 2008)