Millbrae Municipal Code Art. VI Enforcement Remedies

A. The pretreatment supervisor shall have the authority to issue warning notices, late notices, notices of violation (NOV), administrative fines, and to publish the names of users guilty of significant noncompliance pursuant to 40 CFR Section 403.8.

B. In addition to all of the above, the superintendent shall have the authority (1) to issue cease and desist orders, compliance orders, consent orders, show-cause orders, and civil and criminal actions, (2) to suspend or revoke discharge permits, and (3) to terminate discharges to the city's wastewater collection system by shutting off water service.

C. In addition to all of the above, the director shall have the authority to issue an order to restrict, suspend or disconnect a user from the city's wastewater collection system by taking actions deemed appropriate to disconnect the user permanently from the municipal water system.

(1976 Code § 8-4.601; Amended by Ord. 720 § 1; Ord. 637 § 2)

A. Officers, inspectors, superintendents and other duly authorized employees of the state and city shall carry evidence establishing their position as authorized representatives and upon exhibiting the proper credentials and identification shall be permitted to enter in and upon any and all structures, industrial facilities and properties for the purposes of inspection, reinspection, observation, measurement, sampling, testing or otherwise performing such duties as may be necessary in the enforcement of the provisions of this chapter.

B. Inspectors shall be allowed access for inspection and sampling to all facilities that are involved directly or indirectly with the discharge of wastewater to the city's wastewater collection system or which contain records and documents required by MMC § 8.20.620. Facilities shall include but not be limited to: wastewater generating, conveyance, treatment, storage and transfer facilities; hazardous materials handling, storage and transfer facilities; hazardous waste generating, handling, storage and transfer facilities; sampling and monitoring facilities; and records and document storage files.

C. Access to all of the above facilities and/or documents shall be given to authorized personnel of the state or city at all reasonable times, including those occasioned by emergency conditions. Any permanent or temporary obstruction to easy access to the facility to be inspected shall promptly be removed by the facility user or owner at the written or verbal request of the inspector or other authorized city personnel and such obstructions shall not be reinstated in any manner.

D. No user shall interfere with, delay, resist or refuse entrance to any authorized state or city personnel attempting to inspect any facilities or documents listed in this section or otherwise authorized by provisions contained in the Millbrae Municipal Code.

(1976 Code § 8-4.602; Amended by Ord. 720 § 1; Ord. 637 § 2)

The remedies provided for in this section are not exclusive. Enforcement of violations of this chapter will generally be in accordance with the POTW's enforcement response plan, a copy of which is available for viewing at the water pollution control plant office. However, the city may take other appropriate action against any user when the circumstances warrant. Further, the city is empowered to take more than one enforcement action against any noncompliant user. Enforcement actions may include:

A. Administrative Actions.

1. Late/Incomplete Warning Report Notice. When periodic self-monitoring reports or any report required by this chapter or wastewater discharge permit have not been received by the designated submittal date, or have been received but are not complete, a late notice or incomplete report notice requiring that the report be submitted within a specified time period with all required information may be issued. The city is in no way bound to submit a late notice prior to exercising other enforcement remedies included in this chapter.

2. Notice of Violation (NOV). When a user has violated or is violating provisions contained in this chapter, the user's wastewater discharge permit or an order issued thereunder, the city may serve upon such user written notice of the violation. The city may require that the user submit a report containing an explanation of the violation and submit for approval a detailed time schedule to correct the violation which includes a specific action plan to correct and prevent future violations in a satisfactory manner.

3. Cease and Desist Orders. When a user has violated or is violating provisions contained in 40 CFR, Subchapter N, Section 401 et seq., this chapter, the user's wastewater discharge permit, or an order issued thereunder, the city may issue a formal declaration to cease and desist all such violations and direct those persons in noncompliance to:

a. Comply forthwith;

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

4. Compliance Orders. When a user has violated or is violating provisions contained in 40 CFR, Subchapter N, Section 401 et seq., this chapter, the user's wastewater discharge permit, or an order issued thereunder, the city may issue an order to the user responsible for the discharge directing that, following a specified time period, sanitary sewer service shall be discontinued unless adequate treatment facilities, devices, or other related appurtenances have been installed or are properly operated. Compliance orders may also contain such other requirements as might be reasonably necessary and appropriate to address the noncompliance, including installing pretreatment equipment, conducting additional self-monitoring, and implementing best management practices.

5. Consent Orders. When a user has violated or is violating provisions contained in 40 CFR, Subchapter N, Section 401 et seq., this chapter, the user's wastewater discharge permit or an order issued thereunder, the city is empowered to enter into consent orders, assurances of voluntary compliance, or other similar documents establishing an agreement with the user to correct the noncompliance within a time period also specified by the order.

6. Emergency Suspensions.

a. The city may suspend a wastewater discharge permit when such suspension is necessary to prevent discharges that may present an imminent or substantial threat to human health, the environment, the city's wastewater collection system, or which may result in upset, pass-through, or interference at the POTW, or which may cause the POTW to violate any condition of its NPDES permit. In such a situation, the city will not be required to conduct a show-cause hearing.

b. Any discharger notified of a suspension of his/her industrial wastewater permit shall immediately cease and desist the discharge of all industrial wastewater to the city's wastewater collection system. In the event of a failure of the discharger to comply voluntarily with the suspension, the city shall take such steps as deemed necessary, including immediate severance of the sanitary sewer connection, to prevent or minimize damage to the city's POTW or endangerment to any individuals.

c. The city may reinstate the permit for industrial wastewater discharge upon proof of the elimination of the noncomplying discharge and verification that the user has taken adequate steps to prevent future incidents.

7. Revocation of Wastewater Discharge Permit. Any user who violates this chapter, applicable state and federal regulations, the user's wastewater discharge permit or an order issued thereunder is subject to having his/her permit revoked. The city may revoke a wastewater discharge permit for good cause, including, but not limited to, the following reasons:

a. Falsifying self-monitoring reports, or any reports to the POTW;

b. Failure to report changes in operations or any changes in wastewater constituents and characteristics prior to discharging the wastewater;

c. Refusal of reasonable access to the user's premises for the purpose of inspection, monitoring, sampling, reviewing and copying records, or other activities which may be necessary to ensure compliance with provisions contained in this chapter, state and federal regulations, or the user's wastewater discharge permit;

d. Violation of any pretreatment standard or requirement, or any terms of the wastewater discharge permit or this chapter;

e. Misrepresentation or failure to fully disclose all relevant facts in the wastewater discharge permit;

f. Tampering with monitoring equipment;

g. Failure to meet effluent limitations;

h. Failure to pay fines;

i. Failure to pay sanitary sewer service and use charges or pretreatment surcharges;

j. Failure to meet compliance schedules;

k. Failure to complete a wastewater survey or the wastewater discharge permit application;

l. Failure to provide advance notice of the transfer of business ownership of a permitted facility.

Any discharger notified that their wastewater discharge permit has been revoked shall immediately cease and desist the discharge of all industrial wastewater to the city's wastewater collection system. In the event of a failure of the discharger to comply voluntarily, the city shall take such steps as deemed necessary, including immediate severance of the sanitary sewer connection, to prevent discharge to the city's wastewater collection system.

8. Termination of Discharge by Disconnection.

a. In the event that a user violates any provisions of this chapter, any applicable state or federal regulations, the user's wastewater discharge permit or an order issued thereunder, the city may order the disconnection of the user from the city's wastewater collection system through a permanent disconnection from the city's water system. Upon disconnection, the city shall order the appropriate city personnel to estimate the cost of disconnection and reconnection to the system. The user shall deposit the cost of disconnection and reconnection, as estimated, before the user is reconnected to the system. The city shall refund any part of the deposit remaining after payment of all costs of disconnection and reconnection. Prior to disconnection, the city shall conduct a show-cause hearing as set forth in subsection (A)(10) of this section.

b. During the period of such disconnection, habitation of such premises by human beings shall constitute a public nuisance for which the city may take any action set forth in Chapter 6.25 MMC. In such event, and as a condition of reconnection, there is to be paid to the city all reasonable attorney's fees and costs of suit arising in the action.

9. Administrative Fines. When the superintendent finds that a user has violated, or continues to violate, any provision of this chapter, the user's wastewater discharge permit or an order issued thereunder, or any other applicable state or federal regulations or pretreatment standard or requirement, the superintendent may fine such user, as set out in the California Government Code, 54740.5d 1-4, in an amount not to exceed five thousand dollars per violation, per day. In addition to the foregoing, (a) failure or refusal to submit technical or monitoring reports may result in fines up to two thousand dollars per day; (b) failure or refusal to comply with any compliance schedule may result in fines up to three thousand dollars per day; (c) violation of any waste discharge limitation, permit condition or requirement issued, reissued or adopted by the city may result in fines of five thousand dollars per violation, per day; and (d) discharges in violation of suspension, cease and desist orders or other orders or prohibition issued, reissued or adopted may result in fines up to ten dollars per gallon discharged.

10. Show-Cause Hearing. The city may order a user which has violated, or continues to violate, any provision of this chapter, the user's wastewater discharge permit or an order issued thereunder, or any other applicable state or federal regulations or pretreatment standard or requirement, to appear before the director. Notice shall be served on the user specifying the time and place for the meeting, the proposed enforcement action, the reasons for such action, and a request that the user show cause why the proposed enforcement action should not be taken. The notice of the meeting shall be served personally or by registered or certified mail (return receipt requested) at least ten days prior to the hearing. Such notice may be served upon any principal executive, general partner or corporate officer. Whether or not a duly notified person appears as noticed, immediate enforcement action may be pursued. A show-cause hearing shall not be a bar against, or prerequisite for, taking any other action against the user.

B. Legal Action. If any user discharges sewage, industrial wastewater, or other wastewater into the city's wastewater collection system contrary to the provisions of this chapter, any permit or order issued hereunder, or any applicable state or federal regulations or pretreatment standard or requirement, the superintendent, through the city attorney, may commence an action for appropriate legal and/or equitable relief in the Superior Court for San Mateo County, which could seek the civil or criminal penalties described in this subsection.

1. Injunctive Relief. Whenever the superintendent finds that a user has violated, or continues to violate, any provision of this chapter, the user's wastewater discharge permit or an order issued thereunder, or any other applicable state or federal regulations or pretreatment standard or requirement, the superintendent may petition the Superior Court for San Mateo County through the city attorney 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 applicable law on activities of the user. The superintendent may also seek such other action as is appropriate for legal and/or equitable relief, including a requirement for the user to conduct environmental remediation. A petition for injunctive relief shall not be a bar against, or be a prerequisite for, taking any other action against a user.

2. Civil Penalties. As set out in the California Government Code, Section 54740.5d 1-4, 40 CFR 403.8(f)(1) i-vii and the Clean Water Act, 33 USC Section 1251 et seq., civil penalties including the following may be imposed:

a. Any user who has violated, or continues to violate, any provision of this chapter, the user's wastewater discharge permit or an order issued thereunder, or any other applicable state or federal regulations or pretreatment standard or requirement shall be liable to the city for a civil penalty of not more than twenty-five thousand dollars per violation per day but at least one thousand dollars per violation per day for each violation for as long as the violation(s) continues.

b. The city may recover reasonable attorney's fees, court costs, and other expenses associated with enforcement activities, including sampling and monitoring expenses, and the cost of any actual damages incurred by the city.

c. In determining the amount of civil liability, the court shall take into account all relevant circumstances, including, but not limited to, the extent of harm caused by the violation, the magnitude and duration of the violation, any economic benefit gained through the user's violation, corrective actions by the user, the compliance history of the user, and any other factor as justice requires.

d. Filing a suit for civil penalties shall not be a bar against, or be a prerequisite for, taking any other action against a user.

3. Criminal Prosecution.

a. Any user who willfully and knowingly violates any provisions of the city sanitary sewer ordinance, any orders or permits issued hereunder, or any applicable state or federal regulations or pretreatment standard or requirement, or knowingly makes any false statements, representations or certifications in any application, report, record, plan, or other document filed or required to be maintained by the Millbrae sanitary sewer ordinance or wastewater discharge permit; or falsifies, tampers with or knowingly renders inaccurate any monitoring device or method required under the Millbrae sanitary sewer ordinance or wastewater discharge permit, is guilty of a misdemeanor for each separate offense and for each day the violation occurs.

b. Any violations which are characterized as knowing violations under the Clean Water Act, 33 USC Section 1251 et seq., are punishable by fines of not more than fifty thousand dollars nor less than five thousand dollars per day of violation, or imprisonment for up to three years, or both.

c. Any violations which are characterized as knowing endangerment under the Clean Water Act, 33 USC Section 1251 et seq., are considered felonies which are punishable by fines up to one million dollars in the case of corporations, or imprisonment of up to fifteen years, or both.

d. Fines and prison sentences for violations listed in this section are doubled for second offenses.

(1976 Code § 8-4.603; Amended by Ord. 720 § 1; Ord. 637 § 2)

To enforce the provisions of this chapter, the city may correct any violation under this chapter. The cost of such correction may be added to any sanitary sewer service charge payable by the user or discharger violating this chapter, or the owner or tenant of the property upon which the violation occurred. The city may collect such costs in the same manner as the collection of sanitary sewer service charges as set forth in Article VII of this chapter (commencing with MMC § 8.20.790).

(1976 Code § 8-4.604; Amended by Ord. 720 § 1; Ord. 637 § 2)

At least annually, the names of all SIUs which were in significant noncompliance during a previous twelve-month period shall be published in the largest newspaper of local distribution pursuant to 40 CFR Section 403.8.

(1976 Code § 8-4.605; Amended by Ord. 720 § 1; Ord. 637 § 2)