Rohnert Park Municipal Code Art. 1 General Enforcement

The enforcement provisions specified in this sewer use ordinance apply to all classes of users to the extent such user violates any provision of this sewer use ordinance or administrative order of the city engineer pursuant to this sewer use ordinance. In order to achieve the maximum degree of compliance desired, the city may use a variety of enforcement mechanisms. The enforcement mechanisms may range from informal administrative action, to a request for criminal prosecution. The city may, at its discretion, implement the use of any mechanism or the concurrent use of several mechanisms in order to enforce the provisions of this sewer use ordinance. 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 sewer use ordinance 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 ordinance that also constitutes a violation of federal or state statutes and regulations.

(Ord. No. 834, § 9, 2-22-2011)

Rules for enforcement. The city engineer may adopt procedures and rules for the implementation and administration of this sewer use ordinance.

When the city engineer finds that a discharge of industrial wastes is taking place or threatening to take place in violation of this ordinance, wastewater source control requirements, or the provisions of a sewer use permit, the City Engineer may initiative any of the following enforcement actions without limitation:

A. Notice of Violation (NOV). When the city engineer finds that a user has violated, or continues to violate, any provision of this sewer use ordinance, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, the city engineer may serve upon that user a written Notice of Violation. Within ten 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 City Engineer. 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 city engineer to take any action, including emergency actions or any other enforcement action, without first issuing a Notice of Violation.

B. Administrative Orders (AO). The city engineer may issue administrative orders and/or enter into assurances of compliance, or other similar documents establishing an agreement with any user responsible for the 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.

(1) Consent Order. The city engineer may enter into consent orders, 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 affect as administrative orders issued and shall be judicially enforceable.

(2) Show Cause Order. The city engineer may order a user that has violated, or continues to violate, any provision of this sewer use ordinance, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, to appear before the City Engineer 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 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.

(3) Compliance Orders. When the city engineer finds that a user has violated, or continues to violate, any provision of this sewer use ordinance, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, the City Engineer 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.

(4) Cease and Desist Orders. When the city engineer finds that a user has violated, or continues to violate, any provision of this sewer use ordinance, 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 City Engineer 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.

(Ord. No. 834, § 9, 2-22-2011)

No person shall violate any provisions of or fail to comply with any of the requirements of Chapters 13.08 through 13.52. Any person intentionally or negligently violating any of the provisions or failing to comply with any of the requirements of Chapters 13.08 through 13.52 is guilty of a infraction. Each person is guilty of a separate offense for each and every day during any portion of which any violation of any provision of Chapters 13.08 through 13.52 is committed, continued, or permitted by such person.

(Ord. No. 834, § 9, 2-22-2011)

(A) When the city engineer finds that a user has violated, or continues to violate, any provision of this sewer use ordinance, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, the city engineer may fine such user in an amount determined pursuant to the city enforcement response plan. Pursuant to the authority of California Government Code Sections 54739 to 54740.6, the city 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 city's requirements set forth in this sewer use ordinance. The amount of any civil penalties imposed under this section that have remained delinquent for a period of 60 days shall constitute a lien against the real property of the discharger from which the discharge originated resulting in the imposition of the civil penalty.

(B) Unpaid charges, fines, and penalties shall, after thirty calendar days, be assessed an additional penalty of the unpaid balance, and interest shall accrue thereafter. A lien against the user's property may be sought for unpaid charges, fines, and penalties.

(C) Users desiring to dispute such fines must file a written request for the city engineer to reconsider the fine along with full payment of the fine amount within ten days of being notified of the fine. Where the city engineer believes a request has merit, the city may convene a hearing on the matter within fifteen days after receiving the request from the user. The city engineer may add the costs of preparing administrative enforcement actions, such as notices and orders to assess the fine. In the event the user's appeal is successful, the payment, together with any interest accruing thereto, shall be returned to the user.

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

(Ord. No. 834, § 9, 2-22-2011)

Any user who violates any order issued by the city engineer for violation of provisions of this sewer use ordinance regulating or prohibiting discharge of wastewater that causes or threatens to cause a condition of contamination, pollution, or nuisance, as defined in Section 13.12.020 may be liable civilly in a sum not to exceed twenty-five thousand dollars ($25,000.00) for each day in which such violation occurs.

(Ord. No. 834, § 9, 2-22-2011)

When the city engineer finds that a user has violated, or continues to violate, any provision of this sewer use ordinance, a wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or requirement, or otherwise causes or threatens to cause a condition of contamination, pollution or nuisance, the city engineer may seek the issuance of a temporary or permanent injunction, as appropriate, to restrain or compel the specific performance of the wastewater discharge permit, order, or other requirement imposed by this sewer use ordinance on activities of the user. The city engineer 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 a prerequisite for, taking any other action against a user.

(Ord. No. 834, § 9, 2-22-2011)

The city engineer may decline to issue or reissue a wastewater discharge permit to any user who has failed to comply with any provision of this sewer use ordinance, a previous wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or requirement, unless such user first files a satisfactory bond, payable to the city, in a sum not to exceed a value determined by the city engineer to be necessary to achieve consistent compliance.

(Ord. No. 834, § 9, 2-22-2011)

The city engineer may decline to issue or reissue a wastewater discharge permit to any user who has failed to comply with any provision of this sewer use ordinance, a previous wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or requirement, unless the user first submits proof that it has obtained financial assurances sufficient to restore or repair damage to the POTW and/or the city sewerage system caused by its discharge.

(Ord. No. 834, § 9, 2-22-2011)

Whenever a user has violated or continues to violate any provision of this sewer use ordinance, a wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or requirement, potable water service to the user may be terminated. Service will only recommence, at the user's expense, after it has satisfactorily demonstrated its ability to comply.

(Ord. No. 834, § 9, 2-22-2011)

A violation of any provision of this sewer use ordinance, a wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or requirement is hereby declared a public nuisance and shall be corrected or abated as directed by the city engineer. Any person(s) creating a public nuisance shall be subject to the provisions of the city code governing such nuisances, including reimbursing the city for any costs incurred in removing, abating, or remedying said nuisance.

(Ord. No. 834, § 9, 2-22-2011)

When the owner of premises fails to comply with an order to cease and desist the entrance of surface or subsurface drainage water from his premises to the public sewer, the city engineer shall have the right to enter the premises and to block the flow of drainage water. T he costs of blocking such flow shall become a lien upon the premises. Any entry upon private property shall be in accordance with Section 13.52.135 of this ordinance.

(A) When the discharge of wastewater causes an obstruction, damage, or other impairment to the city sewer system or treatment plant, the city engineer may tabulate the expenses incurred for the work required to clean or repair the facility and correct the treatment process. Such expenses shall be reimbursed to the city by adding said expenses to the user's billing for industrial service charges.

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

(Ord. No. 834, § 9, 2-22-2011)

Any violation of pretreatment standards or requirements (limits, sampling, analysis, reporting, and meeting compliance schedules and regulatory deadlines) is an instance of noncompliance for which the significant industrial user is liable for enforcement, including penalties per this ordinance. However, the city is required to identify violations or patterns of violations by SIUs that are deemed to be instances of significant noncompliance (SNC). Additionally, the determination of significant noncompliance shall be used as the basis for reporting the SNC to the regulatory authorities and publishing of the list of industries in SNC as is required of the city by pretreatment program standards.

(Ord. No. 834, § 9, 2-22-2011)

The city engineer shall publish annually in accordance with 40 CFR 403, in any paper of general circulation that provides meaningful public notice within the jurisdiction served by the POTW, a list of the users which, during the previous 12 months, were in significant noncompliance (SNC) with applicable pretreatment standards and requirements. For the purposes of this provision, a significant industrial user (or any industrial user that violates paragraphs (C), (D), or (H) of this section) is in significant noncompliance if its violations meet one or more of the following criteria:

(A) Chronic violations of wastewater discharge limits, defined here as those in which sixty-six percent or more of wastewater measurements taken during a six month period exceed the daily maximum limit or average limit for the same pollutant parameter by any amount;

(B) Technical Review Criteria (TRC) violations, defined here as those in which thirty-three percent or more of wastewater measurements taken for the same pollutant parameter during a six month period equal or exceed the product of the daily maximum limit or the average limit multiplied by the applicable TRC criteria (TRC=1.4 for BOD, TSS, fats, oils and grease, and 1.2 for all other pollutants except pH);

(C) Any other discharge violation that the city engineer believes has caused, alone or in combination with other discharges, interference or pass-through, including endangering the health of POTW personnel or the general public;

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

(E) Failure to meet, within ninety 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;

(F) Failure to provide within forty-five days after the due date, any required reports, including baseline monitoring reports, reports on compliance with categorical pretreatment standard deadlines, periodic self-monitoring reports, and reports on compliance with compliance schedules;

(G) Failure to accurately report noncompliance; or

(H) Any other violation(s) or group of violations, including a violation of best management practices, which the city engineer determines will adversely affect the operation or implementation of the local pretreatment program.

(Ord. No. 834, § 9, 2-22-2011)

A Notice Of Violation Or Administrative Order may contain a compliance schedule. The following conditions shall apply to the schedule.

(A) The schedule shall contain increments of progress or milestones in the form of dates for the commencement and completion of major events, including the construction and operation of additional pretreatment required for the industrial user to meet the applicable pretreatment standards or city local limits.

(B) No increment referred to in paragraph (A) shall exceed nine months.

(C) Not later than fourteen days following each date in the schedule and the final date for compliance, the industrial user shall submit a progress or milestone report to the city engineer including, at a minimum, whether or not it complied with the increment of progress to be met on such date and, if not, the date on which it expects to comply with this increment of progress, the reason for delay, and the steps being taken by the industrial user to return the construction to the schedule established. In no event shall more than nine months elapse between such progress reports to the city.

(Ord. No. 834, § 9, 2-22-2011)

(A) If the city engineer has been refused access to a building, structure or property or any part thereof, and if the city engineer has probable cause to believe that there may be a violation of city ordinance or that there is a need to inspect or sample as part of a routine inspection/sampling program of the city designed to verify compliance with city ordinance or any permit or order issued hereunder, or to protect the overall public health, safety, and welfare of the community, then the city engineer may seek issuance of a search, seizure, or inspection warrant. In the event of an emergency that reasonably appears to present or cause an imminent or substantial endangerment to the health or welfare of persons, or if the user consents, inspections shall be made without the issuance of a warrant.

(B) To the extent that the owner or possessor of the premises requires that a warrant be received, the city may, in its discretion, suspend the permit and/or any other right to discharge to sanitary facilities immediately, and such suspension may continue until such time as a warrant has been received and the inspection has been completed. If no violation of this sewer use ordinance or the permit, if applicable, is found, the suspension shall be lifted. In the event that violations of this sewer use ordinance or the permit, if applicable, are found, then the suspension may, at the discretion of the city, be continued or terminated, or other enforcement remedies may be sought.

(C) The city may choose to inspect the facility to determine compliance with all standards as set forth in this sewer use ordinance or permit if applicable, and additionally, such inspections may be undertaken to verify the wastewater flows and strengths reported by the discharger.

(Ord. No. 834, § 9, 2-22-2011)

The city engineer 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 city engineer 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 discharge. In the event of a user's failure to immediately comply voluntarily with the suspension order, the city engineer 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 city engineer may allow the user to recommence its discharge when the user has demonstrated to the satisfaction of the city engineer that the period of endangerment has passed, unless the termination proceedings in Section 13.52.150 are initiated against the user.

(B) A user 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 engineer prior to the date of any show cause hearing.

(C) After reasonably attempting to informally notify the user, the city may take all necessary steps to halt or prevent such discharge including, but not limited to, plugging or physically disconnecting the user's access to the city sewer system.

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

(Ord. No. 834, § 9, 2-22-2011)

(A) Wastewater discharge permits may be revoked or users' service may be terminated when any provision of this sewer use ordinance is violated or if a discharge of industrial waste causes or threatens to cause a condition of contamination, pollution, or nuisance, as defined in Chapters 13.08 through 13.52. This provision is in addition to other statutes, rules, or regulations authorizing termination of service for delinquency in payment, or for any other reason.

(B) Such users will be notified of the proposed termination of its discharge and be offered an opportunity to show cause under Section 13.52.020.B. why the proposed action should not be taken. Exercise of this option by the city engineer shall not be a bar to, or a prerequisite for, taking any other action against the user.

(C) Whenever a premises has been disconnected from the city sewerage system for a violation of this sewer use ordinance, reconnection of said premises shall be per requirements as set forth by the city engineer.

(Ord. No. 834, § 9, 2-22-2011)

(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 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 paragraph (C), below, are met.

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

(1) An upset occurred and the user can identify the cause(s) of the upset;

(2) The facility was, at the time, being operated in a prudent and competent manner and in compliance with applicable operation and maintenance procedures; and

(3) The user has submitted the following information to the city engineer within twenty-four 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; and

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

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

(E) 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.

(F) Users 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.

(Ord. No. 834, § 9, 2-22-2011)

(A) For the purposes of this section,

(1) Bypass means the intentional diversion of wastestreams from any portion of a user's treatment facility.

(2) Severe Property Damage means substantial physical damage to property, damage to the treatment facilities that causes them to become inoperable, or substantial and permanent loss of natural resources that 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) A user may allow any bypass to occur that 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 paragraphs (C) and (D) of this section.

(1) If a user knows in advance of the need for a bypass, it shall submit written prior notice to the city engineer, at least ten days before the date of the bypass, if possible.

(2) A user shall submit oral notice to the city engineer of an unanticipated bypass that exceeds applicable pretreatment standards within twenty-four hours from the time it becomes aware of the bypass. A written submission shall also be provided within five days of the time the 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 city engineer may waive the written report on a case-by-case basis if the oral report has been received within twney-four hours.

(C) Bypass is prohibited, and the city engineer may take an enforcement action against a user for a bypass, unless:

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

(2) 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 engineer judgment to prevent a bypass that occurred during normal periods of equipment downtime or maintenance; and

(3) The user submitted notices as required under paragraph (B) of this section.

(D) The city engineer may approve an anticipated bypass, after considering its adverse effects, if the city engineer determines that it will meet the three conditions listed in paragraph (C) of this section.

(Ord. No. 834, § 9, 2-22-2011)

A user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the prohibitions set forth in section 13.36.020 (excluding subsections (B)(1), (2), and (8)) if it can prove that it did not know, or have reason to know, that its discharge, alone or in conjunction with discharges from other sources, would cause pass-through or interference and that either:

(A) A local limit exists for each pollutant discharged and the user was in compliance with each limit directly prior to, and during, the pass-through or interference; or

(B) No local limit exists, but the discharge did not change substantially in nature or constituents from the user's prior discharge when the city was regularly in compliance with its NPDES permit, and in the case of interference, was in compliance with applicable sludge use or disposal requirements.

(Ord. No. 834, § 9, 2-22-2011)

If any user or applicant for a permit disputes the interpretation or application of this sewer use ordinance, it may request a ruling by the city engineer, who will set forth his or her determinations on the request.

(Ord. No. 834, § 9, 2-22-2011)

If the discharger or applicant for a permit is dissatisfied with the determinations so made by the city engineer, under Sections 13.48.080, 13.48.140, or 13.52.190, within thirty days after receipt of said ruling by the city engineer, he shall appeal said ruling by giving written notice of the basis of his appeal to the city manager. The city manager shall, within thirty days after receipt of said written notice of appeal, make a determination of the issue submitted. The determination of the city manager shall be final.

(Ord. No. 834, § 9, 2-22-2011)

Pursuant to the provisions of 18 U.S.C. § 1001, relating to fraud and false statements, and the provisions of Section 309(c)(2) of the Act governing false statements, representations, or certification in reports required under the Act, any person who knowingly makes any false statements, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained for this sewer use ordinance, a wastewater discharge permit, or who falsifies or tampers with or knowingly renders inaccurate any monitoring device or method required under this sewer use ordinance, shall, upon conviction, be punished by a fine of not more than ten thousand dollars ($10,000.00) or imprisonment for not more than six months, or both.

(Ord. No. 834, § 9, 2-22-2011)

Subject to the limitations set forth in state law, the city may adopt reasonable fees for reimbursement of costs of setting up and operating the city's pretreatment program that may include:

(A) Fees for wastewater discharge permit applications including the cost of processing such applications;

(B) Fees for monitoring, inspection, and surveillance procedures including the cost of collection and analyzing a user's discharge, and reviewing monitoring reports submitted by users;

(C) Fees for reviewing and responding to accidental discharge procedures and construction;

(D) Fees for filing appeals; and

(E) Other fees as the city may deem necessary to carry out the requirements contained herein.

(F) In the absence of specific fees, the city may recover actual time and materials costs plus a seven percent administrative fee for reimbursement of costs of setting up and operating the city's pretreatment program including but not limited to all actions listed in A, B, C and D above.

(Ord. No. 834, § 9, 2-22-2011)