Article XII — Liability and Enforcement

A.

Liability. The city and its officers, agents and employees shall not be liable for any injury or death to any person, or damage to any property during, or growing out of, the performance of any work by any person. Each person shall be liable for, and shall hold the city and its officers, agents, and employees harmless from any liability imposed by law upon the city or its officers, agents or employees, including all costs, expenses, fees, and interest incurred in defending the same or in seeking to enforce this provision. Each person shall be solely liable for any defects in the performance of its work or for any failure that may result from the performance of such work.

B.

Liability for Violation. Any person violating any of the provisions of this chapter shall be liable to the city for any expense, loss, or damage occasioned by reason of such violation.

(Ord. No. 1105 N.S., § 2 (Exh. A), 12-1-2020)

Any violation of the provisions of this chapter or of any order of the city council, and continued habitation of any building or continued operation of any industrial facility in violation of the provisions of this chapter or of any other rule or regulation of the city, shall be considered a public nuisance and shall be corrected or abated as directed by the director. Any user creating a public nuisance may be charged with a misdemeanor and the director may refer the matter to the city attorney for prosecution. Such users shall be responsible for reimbursing the city for any costs incurred in removing, abating, or remedying said nuisance.

(Ord. No. 1105 N.S., § 2 (Exh. A), 12-1-2020)

A.

It shall be unlawful for any user to violate any provision of this chapter and the orders, rules, regulations, and permits issued under this chapter. Each day in which a violation occurs or continues shall be deemed a separate and distinct offense.

B.

All users shall be held strictly liable for any and all acts of their agents or employees under the provisions of this chapter or any other rule or regulation of the city. Upon being notified by the city, pursuant to Section 14.10.690, of any defect arising in any sewer or of any violation of this chapter, the user shall immediately correct the defect or violation. The city may cause proceedings to be brought for the abatement of the occupancy of the user's building or facility during the period of such violation.

(Ord. No. 1105 N.S., § 2 (Exh. A), 12-1-2020)

The director shall prepare, implement, and, if necessary, periodically update an enforcement response plan (ERP) in conformance with EPA guidelines contained in 40 CFR 403.8(f)(5). This plan shall contain detailed procedures indicating how the POTW will investigate and respond to instances of industrial user noncompliance.

(Ord. No. 1105 N.S., § 2 (Exh. A), 12-1-2020)

A.

When the director finds that a user has violated or continues to violate any provision of this chapter, a wastewater discharge permit, waste hauler permit, or order issued hereunder, or any other pretreatment standard or wastewater requirement of the city, state, or federal government, or is found to have improperly used or maintained sewers, the city may serve upon that user a written notice of violation according to the ERP. The notice shall state the nature of the violation and shall direct that the violation be corrected within such time as specified in the notice, as the director may deem reasonable. A user who has been so notified shall cease all acts deemed to be violations within the time specified in the notice.

B.

Nothing in this section shall limit the authority of the director to take any action, including emergency actions or any other enforcement action, without issuing a notice of violation; however, such notice of violation shall be issued as soon as possible.

(Ord. No. 1105 N.S., § 2 (Exh. A), 12-1-2020)

The director may enter into consent orders, assurances of compliance, or other similar agreements with any user responsible for noncompliance. Such agreement shall include specific actions to be taken by the user to correct the noncompliance within the time period specified in the agreement.

(Ord. No. 1105 N.S., § 2 (Exh. A), 12-1-2020)

When the director finds that a user has violated, or continues to violate, any provision of this chapter, a wastewater discharge permit, waste hauler permit, or order issued hereunder, or any other pretreatment standard or requirement, the 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, water service may be discontinued unless adequate treatment facilities, devices, or other related appurtenances are installed and properly operated. Compliance orders may also contain other requirements to address the noncompliance, including additional self-monitoring and management practices designed to minimize the amount of pollutants discharged to the POTW. 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.

(Ord. No. 1105 N.S., § 2 (Exh. A), 12-1-2020)

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

Immediately comply with all requirements; and

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

(Ord. No. 1105 N.S., § 2 (Exh. A), 12-1-2020)

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

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 director may take such steps as deemed necessary, including immediate severance of the connection to the POTW, to prevent or minimize damage to the POTW, its receiving water, or endangerment to any individuals. The director may allow the user to recommence its discharge when the user has demonstrated to the director's satisfaction that the period of endangerment has passed, unless a termination proceeding under Section 14.10.740 of this chapter has been initiated against the user.

A user that is responsible, in whole or in part, for any discharge that presents 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 director prior to the date of any show cause hearing under Section 14.10.800. Nothing in this section shall be interpreted as requiring that a hearing be held prior to any emergency suspension under this section.

(Ord. No. 1105 N.S., § 2 (Exh. A), 12-1-2020)

The director may revoke any wastewater discharge permit, or terminate or cause to be terminated wastewater and/or water service to any premises if a violation of any provision of this chapter 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 this chapter. This provision supplements other statutes, rules, and regulations that authorize the termination of services for payment delinquency.

(Ord. No. 1105 N.S., § 2 (Exh. A), 12-1-2020)

Subject to the provisions of this chapter regarding notice of violation and right to appeal, the director may revoke any wastewater discharge permit pursuant to Section 14.10.750, or waste hauler permit pursuant to Section 14.10.180, or cause water service to be terminated to any premises if a violation of this chapter or a wastewater discharge permit is found to exist; if a discharge of wastewater causes or threatens to cause a condition of contamination, pollution, or nuisance as defined in this chapter; if any condition presents an imminent danger to the environment or to the health or welfare of persons or threatens to interfere with the operation of the POTW; or if any condition violates applicable

federal or state regulations. This provision supplements other statutes, rules, and regulations that authorize the termination of services for payment delinquency.

(Ord. No. 1105 N.S., § 2 (Exh. A), 12-1-2020)

Whenever a user or IU has violated or continues to violate any provision of this chapter, a wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or requirement, water service to the user may be disconnected. When service has been disconnected as provided, the cost or estimated cost of disconnection and reconnection to the water system shall be deposited by the user with the city before such 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.

(Ord. No. 1105 N.S., § 2 (Exh. A), 12-1-2020)

A.

Any user or IU who has violated, or continues to violate, any provision of this chapter, a wastewater discharge permit, waste hauler permit, or order issued hereunder, or any other pretreatment standard or requirement, shall be liable to the city up to one thousand dollars per violation, per day, for a maximum civil penalty of twenty-five thousand dollars. 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.

B.

The city may recover reasonable attorneys' fees, 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.

(Ord. No. 1105 N.S., § 2 (Exh. A), 12-1-2020)

A.

A user or IU who willfully or negligently violates any provision of this chapter, a wastewater discharge permit, waste hauler permit, or order issued hereunder, or any other pretreatment standard or requirement, shall, upon conviction, be guilty of a misdemeanor, punishable by a fine not to exceed one thousand dollars per violation, per day, or imprisonment for not more than one year, or both.

B.

A user or IU who knowingly makes any false statements, representations, or certifications in any application, record, report, plan, or other documentation filed, or required to be maintained, pursuant to this chapter, a wastewater discharge permit, waste hauler permit, or order issued hereunder, 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 not to exceed one thousand dollars per violation, per day, or imprisonment for not more than one year or both.

C.

In the event of a second conviction the user or IU shall be punished by a fine not to exceed three thousand dollars per violation, per day.

(Ord. No. 1105 N.S., § 2 (Exh. A), 12-1-2020)

The city attorney, upon request of the director, may petition the superior court for a restraining order and/or a preliminary or permanent injunction, or any other remedy, as may be appropriate, whenever a discharge of wastewater or hauled waste violates this chapter or causes, or threatens to cause, a condition of contamination, pollution or nuisance. The city attorney may also petition the superior court for a restraining order and/or preliminary or permanent injunction, or any other remedy, in the event of non-discharge violations or other such noncompliance with the rules and regulations set forth herein.

(Ord. No. 1105 N.S., § 2 (Exh. A), 12-1-2020)

A.

Any user that is subject to a proposed enforcement action may request a hearing, in writing, within ten days of receiving notification of such proposed enforcement action.

B.

A notice shall be served on the user or IU specifying the time and place of the hearing, the proposed enforcement action, the reason why the proposed action is to be taken, and directing the user or IU to show cause why the proposed enforcement action should not be taken. The notice of the hearing shall be served personally or by registered or certified mail, return receipt requested. The notice shall be served at least ten days before the hearing. Service may be made on any agent or officer of a corporation.

C.

The director, or his or her assignee, may conduct the hearing as follows:

Issue, in the name of the city, notices of hearings requesting the attendance and testimony of witnesses and the production of evidence relevant to any matter involved in such hearings including, any supporting an affirmative defense, as set forth in Article XII;

Receive written and oral evidence;

After the hearing, prepare a written report of the evidence presented; and

Determine whether there is good cause for the enforcement action.

D.

At any hearing held pursuant to this chapter, testimony must be given under oath and recorded stenographically. The recorded transcript will be made available to any member of the public or to any party to the hearing upon payment of the city's usual charges.

(Ord. No. 1105 N.S., § 2 (Exh. A), 12-1-2020)

A.

Any user, permit applicant, or permittee affected by any decision, action, or determination, taken or issued by the director, may file with the city manager a written notice of appeal of the director's decision. The notice of appeal must be received by the city within fifteen calendar days after issuance of the decision, action, or determination being appealed. The notice of appeal shall set forth in detail all the facts supporting the appellant's request.

B.

The city manager shall within fifteen days of receiving the notice of appeal designate an impartial hearing officer to hear the appeal and provide written notice to the appellant of the hearing date, time, and place. Employees of the city shall not be eligible to serve as the hearing officer.

C.

The city manager shall set the time and place for hearing the appeal; a notice of the time and place of the hearing shall be published in a newspaper of general circulation in the city; and notice of the hearing shall also be given to the appellant by mail, postage prepaid, at the address provided by the appellant in the notice of appeal at least ten business days before the hearing date.

D.

The hearing shall be held not more than thirty days from the date of mailing of such notice by certified mail to the appellant unless a later date is agreed to by the appellant. If the hearing is not held within said time due to actions or inactions of the appellant, then the director's decision shall be deemed final.

E.

The scope of the hearing shall be limited to the technical evidence regarding the alleged violation(s) and proposed enforcement action(s). The hearing officer shall have no authority to waive any requirement of this Code, or state or federal law or regulations.

F.

At the hearing, the appellant shall have the opportunity to present information supporting its position concerning the director's decision, action, or determination.

G.

After the conclusion of the hearing, the hearing officer shall submit a written report to the city manager setting forth a brief statement of facts found to be true, a determination of the issues presented, conclusions, and a recommendation whether to uphold, modify, or reverse the director's original decision, action, or determination. Upon receipt of the written report, the city manager shall make a determination and shall issue a decision and order within thirty calendar days of the hearing by his designee. The written decision and order of the city manager shall be sent by certified mail, return receipt requested, to the appellant at the appellant's business address, or to the address of appellant's legal counsel/representative.

H.

The decision of the city manager shall be the final decision, and no action by the city council shall be required.

I.

A fee, as provided for in this subsection I., shall accompany an application for a hearing before any hearing date. The purpose of the fee shall be to cover those costs incurred by the city for the appeal process. Appeal fees shall be set by resolution of the city council. Appeal fees will be reviewed periodically to ensure that the fees charged cover the costs associated with the appeal process.

J.

If the appellant wishes to have the hearing transcribed, the appellant may request that a court reporter be present at the hearing. The appellant shall bear all costs and expenses of the transcription.

(Ord. No. 1105 N.S., § 2 (Exh. A), 12-1-2020)