Rio Dell Municipal Code Art. IX Administration And Enforcement

Except as otherwise provided in this chapter, the City Manager shall administer, implement and enforce the provisions of this chapter. Any powers granted to or duties imposed upon the City Manager may be delegated by the City Manager to other City personnel.

(Ord. 286, 2012; Ord. 322 § 1, 2014)

(1) Inspection and Sampling. The City Manager or designee shall have the right to enter the facilities of any industrial user to ascertain whether the purpose of this chapter, and any permit or order issued hereunder, is being met and whether the industrial user is complying with all requirements thereof. Industrial users shall allow the City Manager or his representatives ready access to all parts of the premises for the purposes of inspection, sampling, records examination and copying, and the performance of any additional duties.

(a) Where an industrial user has security measures in force which require proper identification and clearance before entry into its premises, the industrial user shall make necessary arrangement with its security guards so that, upon presentation of suitable identification, personnel for the City, State, and EPA shall be permitted to enter without delay, for the purposes of performing their specific responsibilities.

(b) The City, State, and EPA shall have the right to set up on the industrial user's property, or require installation of, such devices as are necessary to conduct sampling and/or metering of the user's operations.

(c) The City may require the industrial user to install monitoring equipment as necessary. The facility's sampling and monitoring equipment shall be maintained at all times in a safe and proper operating condition by the industrial user at its own expense. The monitoring equipment should normally be situated on the user's premises, but the City may, when such a location would be impractical or cause undue hardship on the user, allow the facility to be constructed in the public street or sidewalk area and located so that the facility will not be obstructed by landscaping or parked vehicles. All devices used to measure wastewater flow and quality shall be calibrated yearly to ensure their accuracy.

(d) Any temporary or permanent obstruction to safe and easy access to the industrial facility to be inspected and/or sampled shall be promptly removed by the industrial user at the written or verbal request of the City Manager or designee and shall not be replaced. The costs of clearing such access shall be borne by the industrial user.

(e) Unreasonable delays in allowing City personnel access to the industrial user's premises shall be a violation of this chapter.

(f) Whether constructed on public or private property, the sampling and monitoring facilities shall be provided in accordance with the City's requirements and all applicable local agency construction standards and specifications. Construction shall be completed within 90 days following written notification by the City, unless a time extension is otherwise granted by the City.

(2) Search Warrants. If the City Manager or designee has been refused access to a building, structure, or property or any part thereof, and if the City Manager or designee has demonstrated probable cause to believe that there may be a violation of this chapter or that there is a need to inspect as part of a routine inspection program of the City designed to verify compliance with this chapter or any permit or order issued hereunder, or to protect the overall public health, safety, and welfare of the community, then the City Attorney may apply to the appropriate court for a search and/or seizure warrant describing therein the specific location subject to the warrant. The warrant shall specify what, if anything, may be searched and/or seized on the property described. In the event of an emergency affecting public health and safety, inspections shall be made without the issuance of a warrant.

(Ord. 286, 2012; Ord. 322 § 1, 2014)

The City shall publish annually, in the largest daily newspaper published in the municipality where the POTW is located, a list of the significant industrial users and categorical industrial users which, during the previous 12 months, were in significant noncompliance with applicable pretreatment standards and requirements. The term "significant noncompliance" shall mean:

(1) Chronic violations of wastewater discharge limits, defined here as those in which 66 percent or more of all of the measurements taken for the same pollutant parameter during a six-month period exceed (by any magnitude) a numeric pretreatment standard or requirement, including instantaneous limits, as defined by 40 CFR 403.3(l);

(2) Technical review criteria (TRC) violations, defined here as those in which 33 percent or more of all of the measurements taken for the same pollutant parameter during a six-month period equal or exceed the product of the numeric pretreatment standard or requirement, including instantaneous limits, as defined by 40 CFR 403.3(l), multiplied by the applicable TRC (TRC=1.4 for BOD, TSS, fats, oil, and grease, and 1.2 for all other pollutants except pH);

(3) Any other violation of a pretreatment standard or requirement as defined by 40 CFR 403.3(l) (daily maximum, long-term average, instantaneous limit, or narrative standard) that the POTW determines has caused, alone or in combination with other discharges, interference or pass through (including endangering the health of POTW personnel or the general public);

(4) Any discharge of pollutants that has caused imminent endangerment to the public or to the environment or has resulted in the City's exercise of its emergency authority to halt or prevent such a discharge;

(5) Failure to meet, within 90 days of the scheduled date, a compliance schedule milestone contained in a wastewater discharge permit or enforcement order for starting construction, completing construction, or attaining final compliance;

(6) Failure to provide, within 30 days after the due date, any required reports, including baseline monitoring reports, 90-day compliance reports, periodic self-monitoring reports, and reports on compliance with compliance schedules;

(7) Failure to accurately report noncompliance;

(8) Any other violation which the City determines will adversely affect the operation or implementation of the local pretreatment program.

(Ord. 286, 2012; Ord. 322 § 1, 2014)

(1) Notification of Violation. Whenever the City Manager or designee finds that any person has violated or is violating this chapter, a wastewater discharge permit or order issued hereunder, or any other pretreatment requirement, the City Manager or his agent may serve upon said person a written notice of violation. Within seven 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 person to the City Manager or designee. Submission of this plan in no way relieves the person 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 City to take any action, including emergency actions or any other enforcement action, without first issuing a notice of violation. The City Manager or designee has the option of providing a warning notice of violation (warning NOV). A warning NOV is a verbal or written communication between the City Manager or designee and the industrial user regarding possible enforcement action for potential or actual noncompliance by the industrial user. The City Manager or designee must document the warning in writing and place a copy of the documentation in the user's file.

(2) Consent Orders. The City Manager or designee may enter into consent orders, assurances of compliance, or other similar documents establishing an agreement with any person responsible for noncompliance. Such documents shall include specific action to be taken by the person 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 subsections (4) and (5) of this section and shall be judicially enforceable.

(3) Show Cause Hearing. The City Manager or designee may order a person which has violated, or continues to violate, any provision of this chapter, an individual wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or requirement, to appear before the City Manager or designee and show cause why the proposed enforcement action should not be taken. Notice shall be served on the person specifying the time and place for the meeting, the proposed enforcement action, the reasons for such action, and a request that the person 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 seven days prior to the hearing. Such notice may be served on any authorized representative of the person as defined in RDMC § 13.10.010 and required by RDMC § 13.10.437(2). A show cause hearing shall not be a bar against, or prerequisite for, taking any other action against the person.

(4) Compliance Orders. When the City finds that a person has violated or continues to violate this chapter, wastewater discharge permits or order issued hereunder, or any other pretreatment standard or requirement, he may issue an order to the person responsible for the discharge directing that the person come into compliance within 30 days. If the person does not come into compliance within 30 days, sewer service shall be discontinued unless adequate treatment facilities, devices, or other related appurtenances are installed and properly operated. Compliance orders may not extend the deadline for compliance established for a Federal pretreatment standard or requirement, nor does a compliance order release the person of liability for any violation, including any continuing violation. Issuance of a compliance order shall not be a prerequisite to taking any other action against the person.

(5) Cease and Desist Orders.

(a) When the City Manager or designee finds that a person is violating this chapter, the person's wastewater discharge permit, any order issued hereunder, or any other pretreatment standard or requirement, or that the person's past violations are likely to recur, the City Manager or designee may issue an order to the person directing it to cease and desist all such violations and directing the person to:

(i) Immediately comply with all requirements;

(ii) 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.

(b) Issuance of a cease and desist order shall not be a prerequisite to taking any other action against the person.

(6) Administrative Fine.

(a) Notwithstanding any other section of this chapter, any person that is found to have violated any provision of this chapter, its wastewater discharge permit, and orders issued hereunder, or any other pretreatment standard or requirement, may be fined in an amount not to exceed $1,000. 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 may be assessed for each day during the period of violation.

(b) Assessments may be added to the person's next scheduled sewer service charge and the City Manager or designee shall have such other collection remedies as may be available for other service charges and fees.

(c) Unpaid charges, fines, and penalties shall, after 60 calendar days, be assessed an additional penalty of 10 percent of the unpaid balance and interest shall accrue thereafter at a rate of 0.5 percent per month. A lien against the individual person's property will be sought for unpaid charges, fines, and penalties.

(d) Persons desiring to dispute such fines must file a written request for the City Manager or designee to reconsider the fine along with full payment of the fine amount within 30 days of being notified of the fine. Where a request has merit, the City Manager or designee shall convene a hearing on the matter within 30 days of receiving the request from the industrial user. In the event the person's appeal is successful, the payment together with any interest accruing thereto shall be returned to the industrial user. The City may add the costs of preparing administrative enforcement actions such as notices and orders to the fine.

(e) Issuance of an administrative fine shall not be a prerequisite for taking any other action against the person.

(7) Emergency Suspensions.

(a) The City Manager or designee may immediately suspend a person's discharge (after informal notice to the person) whenever such suspension is necessary in order 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 City Manager or designee may also immediately suspend a person's discharge (after notice and opportunity to respond) that threatens to interfere with the operation of the POTW, or which presents or may present an endangerment to the environment.

(i) Any person notified of a suspension of its discharge shall immediately stop or eliminate its contribution. In the event of a person's failure to immediately comply voluntarily with the suspension order, the City Manager or designee shall 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 City Manager or designee shall allow the person to recommence its discharge when the person has demonstrated to the satisfaction of the City that the period of endangerment has passed, unless the termination proceedings set forth in this chapter are initiated against the person.

(ii) A person that 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 City Manager or designee, prior to the date of any show cause or termination hearing as set forth in this chapter.

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

(8) Termination of Discharge. The City Manager or designee may immediately suspend the sewer and water service when such suspension is necessary, in the opinion of the City Manager or designee, to stop an actual or threatened discharge of wastewater, sewage or any substance into the sanitary sewer system which presents or may present an imminent or substantial endangerment to the health or welfare of persons, to the environment, or causes interference or damage to the treatment works or sanitary sewer system.

(a) In addition to those provisions of RDMC § 13.10.444, any person that violates the following conditions of this chapter, wastewater discharge permits, or orders issued hereunder, is subject to discharge termination.

(i) Violation of wastewater discharge permit conditions;

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

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

(iv) Refusal of reasonable access to the person's premises for the purpose of inspection, monitoring, or sampling;

(v) Violation of the pretreatment standards in RDMC § 13.10.410 through § 13.10.421 and RDMC § 13.10.431.

(b) Any person notified of the suspension of the sewer and water service shall immediately stop or eliminate the contribution. Such person will be notified of the proposed termination of its discharge and be offered an opportunity to show cause under subsection (3) of this section why the proposed action should not be taken. In the event of the failure of the person to comply voluntarily with the suspension order, the City Manager or designee shall take steps as deemed necessary, including immediate severance of the sewer connection, to prevent or minimize damage or endangerment to any individuals or to the sanitary sewage system. The City Manager or designee shall reinstate the sewer and water service upon proof of the elimination of the noncomplying discharge.

(Formerly 13.10.480 and 13.10.490; Ord. 190 §§ 52, 54, 55, 1987; Ord. 203, 1990; Ord. 286, 2012; Ord. 322 § 1, 2014)

(1) Injunctive Relief. Whenever the person has violated a pretreatment standard or requirement or continues to violate the provisions of this chapter, wastewater discharge permits or orders issued hereunder, or any other pretreatment requirement, the City may petition the Superior Court for the issuance of a temporary or permanent injunction, as may be appropriate in restraining the continuance of such violation.

(2) Civil Penalties.

(a) Any person which has violated or continues to violate this chapter, any order, or wastewater discharge permit hereunder, or any other pretreatment standard or requirement shall be liable to the City for a maximum civil penalty of $6,000 per violation per day. 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 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) When a discharge of wastes causes an obstruction, damage, or other impairment to the POTW, the City may assess a charge against the person for the cost of the work required to clean or repair the POTW and add such charge to the person's service charge.

(d) Filing a suit for civil penalties shall not be a prerequisite for taking any other action against a person.

(Ord. 286, 2012; Ord. 322 § 1, 2014)

(1) Water Supply Severance. Whenever a person has violated or continues to violate the provisions of this chapter, orders, or wastewater discharge permits issued in this chapter, water service to the person may be severed. Service will only recommence, at the person's expense, after it has satisfactorily demonstrated its ability to comply.

(2) Public Nuisances. Any violation of this chapter, wastewater discharge permits, or orders issued hereunder, is hereby declared a public nuisance and shall be corrected or abated as directed by the City Manager or his designee. Any person(s) creating a public nuisance shall be subject to the provisions of applicable State and City codes, ordinances, rules and/or regulations governing such nuisances, including recoupment by the City of any costs incurred in removing, abating or remedying said nuisance.

(Ord. 286, 2012; Ord. 322 § 1, 2014)

The provisions in RDMC § 13.10.458 through § 13.10.462 are not exclusive remedies. The City reserves the right to take any, all or any combination of these actions against a noncompliant user. Enforcement of pretreatment violations will generally be in accordance with the City's enforcement response plan. However, the City reserves the right to take other action against any user when the circumstances warrant. Further, the City is empowered to take more than one enforcement action against any noncompliant user. These actions may be taken concurrently.

(Ord. 286, 2012; Ord. 322 § 1, 2014)

(1) Upset.

(a) For the purposes of this section, "upset" means an exceptional incident in which there is unintentional and temporary noncompliance with categorical pretreatment standards because of factors beyond the reasonable control of the industrial user. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.

(b) An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the requirements of subsection (1)(c) of this section are met.

(c) An industrial user who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence, that:

(i) An upset occurred and the industrial user can identify the cause(s) of the upset.

(ii) The facility was at the time being operated in a prudent and workmanlike manner and in compliance with applicable operation and maintenance procedures.

(iii) The industrial user has submitted the following information to the POTW and treatment plant operator within 24 hours of becoming aware of the upset (if this information is provided orally, a written submission must be provided within five days):

(A) A description of the indirect discharge and cause of noncompliance.

(B) The period of noncompliance, including exact dates and times or, if not corrected, the anticipated time the noncompliance is expected to continue.

(C) Steps being taken and/or planned to reduce, eliminate, and prevent recurrence of the noncompliance.

(iv) In any enforcement proceeding, the industrial user seeking to establish the occurrence of an upset shall have the burden of proof.

(v) Industrial users will have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for noncompliance with categorical pretreatment standards.

(vi) The industrial user shall control production of all discharges to the extent necessary to maintain compliance with categorical pretreatment standards upon reduction, loss, or failure of its treatment facility until the facility is restored or an alternative method of treatment is provided. This requirement applies in the situation where, among other things, the primary source of power of the treatment facility is reduced, lost, or fails.

(2) Bypass.

(a) For the purposes of this section:

(i)

"Bypass"

shall mean the intentional diversion of waste streams from any portion of an industrial user's treatment facility.

(ii)

"Severe property damage"

shall mean substantial physical damage to property, damage to the treatment facilities which causes them to become inoperable, or substantial and permanent loss of natural resources which can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production.

(b) An industrial user may allow any bypass to occur which does not cause pretreatment standards or requirements to be violated, but only if it also is for essential maintenance to assure efficient operation. These bypasses are not subject to the provision of subsections (2)(c) and (d) of this section.

(c) Bypass Notification.

(i) If an industrial user knows in advance of the need for a bypass, it shall submit prior notice to the POTW, at least 10 days before the date of the bypass if possible.

(ii) An industrial user shall submit oral notice of an unanticipated bypass that exceeds applicable pretreatment standards to the POTW within 24 hours from the time it becomes aware of the bypass. A written submission shall also be provided within five days of the time the industrial user becomes aware of the bypass. The written submission shall contain a description of the bypass and its cause; the duration of the bypass, including exact dates and times, and, if the bypass has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent recurrence of the bypass. The POTW may waive the written report on a case-by-case basis if the oral report has been received within 24 hours.

(d) Bypass.

(i) Bypass is prohibited, and the POTW may take enforcement action against an industrial user for a bypass, unless:

(A) Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;

(B) There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance; and

(C) The industrial user submitted notices as required under subsection (2)(c) of this section.

(ii) The POTW may approve an anticipated bypass, after considering its adverse effects, if the POTW determines that it will meet the three conditions listed in subsection (2)(d)(i) of this section.

(Ord. 286, 2012; Ord. 322 § 1, 2014)

(1) Any person that willfully or negligently violates any provision of this chapter, any orders or wastewater discharge permits issued hereunder, or any other pretreatment requirement shall, upon conviction, be guilty of a misdemeanor, punishable by a fine of not more than $500.00 per violation per day or imprisonment for not more than one year or both.

(2) Any person that willfully or negligently introduces any substance into the POTW which causes personal injury or property damage shall, upon conviction, be guilty of a misdemeanor and be subject to a penalty of at least $500.00 per violation per day or imprisonment for not more than one year. This penalty shall be in addition to any other cause of action for personal injury or property damage available under State law.

(3) Any person that 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, wastewater discharge permit or order, 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 $500.00 per violation per day or imprisonment for not more than one year or both.

(4) In the event of a second conviction, a person shall be punished by a fine of not more than $2,000 per violation per day or imprisonment for not more than two years or both.

(Formerly 13.10.510; Ord. 38 § 2, 1965; Ord. 190 § 57, 1987; Ord. 203, 1990; Ord. 286, 2012; Ord. 322 § 1, 2014)

Any user, permit applicant or permit holder affected by any decision, action or determination, including cease or desist orders made by the City Manager or designee in interpreting or implementing the provisions of this chapter, or any permit issued pursuant to the provisions of this chapter, may file with the City Manager or designee a written request for reconsideration within 10 days of such decision, action or determination, setting forth in detail the facts supporting the user's request for reconsideration.

If the ruling made by the City Manager or designee is unsatisfactory to the person requesting reconsideration, the person may, within 10 days after notification of such City action, file a written appeal to the City Council. The written appeal shall be heard by the City Council within 30 days after the date of filing. The Council shall make a final ruling on the appeal within 10 days after the close of the meeting. The Manager's decision, action or determination shall remain in effect during the period of reconsideration.

(Formerly 13.10.500; Ord. 190 § 56, 1987; Ord. 203, 1990; Ord. 286, 2012; Ord. 322 § 1, 2014)