Sec. 29.150. - Administrative enforcement remedies.

Purpose and scope. Enforcement of this article is vital for the protection of the public's health

and safety, the environment and the POTW. Any violation or continuing violation of a provision of this article, a discharge permit, an administrative order or applicable state or federal law may be grounds for enforcement action against a user. The city shall conduct enforcement proceedings in accordance with its enforcement response plan, as amended from time to time, to ensure consistent application of the provisions of this article. The city's enforcement response plan is maintained in the pollution prevention and pretreatment program offices.

Findings of violation. The city may make findings of violations of a discharge permit, this article or

applicable law based upon the following:

A.

Review of information submitted by a user to the city;

B.

Review of the city's inspection of the user's facility and/or sampling of the user's discharge;

C.

A user's failure to submit any required documentation, report or notice;

D.

A user's failure to pay any fees, fines, costs or deposits as required by this article;

E.

Any other information received by the city.

Notification of violation. When the water utilities director finds that a user has violated, or

continues to violate, any provision of this article, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, the water utilities director may serve upon that user a written notice of violation (NOV). Within five (5) business days of the receipt of this notice, an explanation of the violation and a plan for the satisfactory correction and prevention thereof, to include specific required actions, shall be submitted by the user to the water utilities director. Submission of this plan in no way relieves the user of liability for any violations occurring before or after receipt of the notice of violation. Nothing in this section shall limit the authority of the water utilities director to take any action, including emergency actions or any other enforcement action, without first issuing a notice of violation.

In the event that the notice of violation imposes any administrative enforcement action(s), the city shall issue the NOV by at least one (1) of the following methods: (1) via certified mail with return receipt requested; (2) personal delivery; or (3) posting the notice of violation conspicuously on or in front of the user's premises.

Consent orders. The water utilities director may enter into consent orders, assurances of

voluntary compliance, or other similar documents establishing an agreement with any user responsible for noncompliance. Such documents will include specific action to be taken by the user to correct the noncompliance within a time period specified by the document. Such documents shall have the same force and effect as the administrative orders issued pursuant to sections 29.150.6 and 29.150.7 of this article and shall be judicially enforceable.

Show cause hearing. The water utilities director may order a user that has violated, or continues

to violate, any provision of this article, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, to appear before the water utilities director and show cause why the proposed enforcement action should not be taken. 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 (10) business days prior to the hearing. Such notice may be served on any authorized representative of the user. A show cause hearing shall not be a bar against, or prerequisite for, taking any other action against the user.

Compliance orders. When the water utilities director finds that a user has violated, or continues to

violate, any provision of this article, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, the water utilities 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.

Cease and desist orders. When the water utilities director finds that a user has violated, or

continues to violate, any provision of this article, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, or that the user's past violations are likely to recur, the water utilities director may issue an order to the user directing it to cease and desist all such violations and directing the user to:

A.

Immediately comply with all requirements; and

B.

Take such appropriate remedial or preventive action as may be needed to properly address a continuing or threatened violation, including halting operations and/or terminating the discharge. Issuance of a cease and desist order shall not be a bar against, or a prerequisite for, taking any other action against the user.

A.

40 CFR 403 authorizes the POTW to seek or assess civil or criminal penalties for each violation by industrial users of pretreatment standards and requirements. The water utilities director may fine the user, in accordance with the latest amendment to the Porter Cologne Water Quality Control Act (Clean Water Act) California Government Code Section 54740 and the City of Oceanside Enforcement Response Plan.

The amount of any civil penalties imposed under this section that have remained delinquent for a period of sixty (60) calendar days shall constitute a lien against the real property of the discharger from which the discharge originated resulting in the imposition of the fines. 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 Section 683.110 to 683.220, inclusive, of the California Code of Civil Procedure.

Such fines shall be assessed on a per-violation, per-day basis. In the case of monthly or other long-term average discharge limits, fines shall be assessed for each day during the period of violation.

B.

Unpaid charges, fines, and penalties shall, after twenty-five (25) calendar days, be assessed an additional penalty of ten (10) percent of the unpaid balance, and interest shall accrue thereafter at the prevailing bank rate. A lien against the user's property will be sought for unpaid charges, fines, and penalties.

C.

Users desiring to dispute such fines must file a written request to the water utilities director to reconsider the fine along with full payment of the fine amount within ten (10) business days of being notified of the fine.

Where a request has merit, the water utilities director may convene a hearing on the matter. In the event the user's appeal is successful, the payment, together with any interest accruing thereto, shall be returned to the user. The water utilities director may add the costs of preparing administrative enforcement actions, such as notices and orders, to the fine.

D.

Issuance of an administrative fine shall not be a bar against, or a prerequisite for, taking any other action against the user.

Emergency suspensions. The water utilities director may immediately suspend a user's

discharge, after informal notice to the user, whenever such suspension is necessary to stop an actual or threatened discharge, that reasonably appears to present, or cause an imminent or substantial endangerment to the health or welfare of persons. The water utilities director may also immediately suspend a user's discharge, after notice and opportunity to respond, that threatens to interfere with the operation of the POTW, or that presents, or may present, an endangerment to the environment.

A.

Any user notified of a suspension of its discharge shall immediately stop or eliminate its contribution. In the event of a user's failure to immediately comply voluntarily with the suspension order, the water utilities director may take such steps as deemed necessary, including immediate severance of the sewer connection, to prevent or minimize damage to the POTW, its receiving stream, or endangerment to any individuals. The water utilities director may allow the user to recommence its discharge when the user has demonstrated to the satisfaction of the water utilities director that the period of endangerment has passed, unless the termination proceedings in section 29.150.10 of this article are initiated against the user.

B.

A user who is responsible, in whole or in part, for any discharge presenting imminent endangerment shall submit a detailed written statement, describing the causes of the harmful contribution and the measures taken to prevent any future occurrence, to the water utilities director prior to the date of any show cause or termination hearing under section 29.150.5 or 29.150.10 of this article.

Nothing in this section shall be interpreted as requiring a hearing prior to any emergency suspension under this section.

Termination of discharge. In addition to the provisions in section 29.145.5 of this article, any user

who violates the following conditions is subject to discharge termination:

A.

Violation of wastewater discharge permit conditions;

B.

Failure to accurately report the wastewater constituents and characteristics of its discharge;

C.

Failure to report significant changes in operations or wastewater volume, constituents, and characteristics prior to discharge;

D.

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

E.

Violation of the pretreatment standards in section 29.132 of this article.

Such user will be notified of the proposed termination of its discharge and be offered an opportunity to show cause under section 29.150.5 of this article why the proposed action should not be taken. Exercise of this option by the water utilities director shall not be a bar to, or a prerequisite for, taking any other action against the user.

A.

A user receiving an administrative fine may appeal within ten (10) business calendar days from the date the citation is served. The appeal must be in writing and must indicate a return address. It must be accompanied by the penalty amount, specifying the basis for the appeal in detail, and must be filed with the city as indicated in the administrative citation. If the deadline falls on any day city hall is closed, then the deadline shall be extended until the next regular business day.

B.

As soon as practicable after receiving the written notice of appeal, the water utilities director will fix a date, time and place for hearing before a hearing officer. Written notice of the time and place for the hearing may be served by first class mail, at the return address indicated on the written appeal. Service of the appeal notice must be made at least ten (10) business days prior to the date of the hearing to the party appealing the citation.

C.

The failure of any user or other responsible party, to receive such properly addressed notice of the hearing shall not affect the validity of any proceedings under this article. Service by first class mail, postage prepaid shall be effective on the date of mailing.

D.

Failure of any user to file an appeal shall constitute a waiver of that user's rights to administrative determination of the merits of the citation and the amount of the penalty. If no appeal is filed, the citation shall be deemed a final administrative order.

E.

A hearing officer will be designated by the water utilities director for all appeal hearings under this article. The hearing officer will conduct an orderly and fair hearing and accept evidence on which persons would commonly rely in the conduct of their ordinary business affairs. However, the formal rules of evidence and procedure applicable to judicial proceeding shall not apply. Cross-examination of witnesses is not required, but may be permitted as deemed appropriate by the hearing officer.

Notwithstanding any provision of this section to the contrary:

(1)

A valid citation shall be prima facie evidence of the violation;

(2)

The hearing officer will accept testimony by declaration under penalty of perjury relating to the violation and the appropriate means of correcting the violation.

F.

The owner, agent, person responsible for the violation, or any other interested person may present testimony or evidence concerning the violation and the means and time frame for correction.

G.

The water utilities director, subject to approval by the city attorney, may establish appropriate administrative regulations for implementing this article, conducting hearings and rendering decisions pursuant to this section.

H.

The hearing officer may reduce, waive or conditionally reduce the penalties stated in a citation or any late fees assessed if mitigating circumstances are shown and the hearing officer states specific grounds for reduction or waiver in the written decision. The hearing officer may impose conditions and deadlines for correction of violations or payment of outstanding penalties.

I.

The hearing officer will make findings based on the record of the hearing and make a written decision based on the findings. The processing agency shall preserve all exhibits submitted by the parties and shall serve the decision by first class mail to the respondent within ten (10) business working days after the hearing. The decision of the hearing officer is final and conclusive, subject only to review by the superior court. There are no appeals to the city council.

(Ord. No. 11-OR0603-1, § 3, 8-17-2011)