Chapter MH-9 — ENFORCEMENT

Sections:

MH-5-6901 - ADMINISTRATIVE ENFORCEMENT REMEDIES.

(a)

Notice of Violation. When the District finds that a user violated or continues to violate any provision of this Ordinance, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, the District may serve upon that user a written notice of violation (NOV). Within fifteen (15) days of the receipt of the NOV or any shorter period specified in the NOV, the user shall submit to the District a

written explanation of the violation and plan that includes specific actions required to correct and prevent the violation. Submission of the plan in no way relieves the user of liability for any violations that occur before or after receipt of the NOV. Nothing in this Section shall limit the District's authority to take any action (including emergency actions or any enforcement action) in the absence of a NOV or before the response period expires.

(b)

Consent Orders. The District may enter into consent orders, assurances of compliance, or other similar documents to establish an agreement with any user responsible for noncompliance. A consent order shall include specific action(s) the user shall take to correct the noncompliance within time frames specified in the order. Such documents shall have the same force and effect as administrative orders issued under this Ordinance and be judicially enforceable.

(c)

Show Cause Hearing. The District may order a user that violated or continues to violate any provision of this Ordinance, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement to appear before the General Manager and show cause why the District should not take the enforcement action proposed. The District shall serve upon the user a notice that specifies the time and place for the hearing, the proposed enforcement action, the reasons for such action, and a request that the user show cause why the District should not take the action. The District shall serve the hearing notice personally or by registered or certified mail at least fifteen (15) days prior to the hearing. After review of the evidence and testimony presented at the hearing, the General Manager may make such orders as he or she deems appropriate with due regard to any violations.

(d)

Compliance Orders and Compliance Schedules.

(1)

When the District finds that a user violated or continues to violate any provision of this Ordinance, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, the District may issue an order to the user to direct it to come into compliance within a specified time. If the user does not come into compliance within the time provided, the District may discontinue sewer service unless the user properly installs and operations adequate treatment facilities, devices, or other related appurtenances.

(2)

When the District determines that a user violated or continues to violate this Ordinance, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement and needs to construct and/or acquire and install equipment related to pretreatment, the District may issue a compliance schedule to amend the user's wastewater discharge permit. The compliance schedule may contain terms and conditions that a user must satisfy during the time or by the specific dates provided.

(3)

Compliance orders and compliance schedules may contain other requirements to address noncompliance, including, but not limited to, additional self-monitoring, submittal of drawings or reports, audit of waste minimization practices, or other provisions to ensure compliance with this Ordinance. A compliance order may not extend the deadline for compliance established for a federal pretreatment standard or requirement, nor does a compliance order relieve the user of liability for any violation.

(e)

Cease and Desist Orders. When the District determines that a user violated or continues to violate any provision of this 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 District may issue an order to the user that directs it to cease and desist all such violations, come into compliance with all requirements immediately or in accordance with a time schedule set by the District, and take any remedial or preventive action necessary to properly address a continuing or threatened violation, including an action to halt the user's and/or terminate the user's discharge.

(f)

Administrative Complaint and Civil Liability Penalties.

(1)

Complaint. When the District determines that a user violated or continues to violate any provision of this Ordinance, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, the District may issue a complaint to the user that imposes civil liability as set forth in Subsection MH-5- 6901(f)(3). The District shall serve the complaint by personal service or registered or certified mail on the individual subject to the District's discharge and reporting requirements. The complaint shall allege the act or failure to act that constitutes a violation, provision of law that authorizes the District to impose the civil liability, and civil liability proposed. The complaint shall set forth the date of the hearing before a hearing officer designated by the Board of Directors, and such hearing shall occur within thirty (30) days after the date of service.

(2)

The individual served the complaint pursuant to Subsection MH-5-6901(f)(1) may waive the right to a hearing, in which case the District shall not conduct the hearing. At the hearing, the individual shall have an opportunity to present written and/or oral evidence to respond to the allegations in the complaint. The hearing officer shall conduct the hearing in accordance with the procedures established by the General Manager and approved by the District's counsel. After the hearing concludes, the hearing officer shall submit a written report to the General Manager that provides a brief statement of the facts found to be true, a determination of the issues presented, conclusions, and a recommendation. Upon receipt of the report, the General Manager shall determine whether grounds exist to assess a civil liability penalty. The General Manager shall issue a decision and order in writing within thirty (30) days upon the conclusion of the hearing and serve copies of the order on the party served with the complaint (either by personal service or registered or certified mail) and other persons who appeared at the hearing and requested a copy of the order.

(3)

Civil Liability Penalties. The District shall impose civil liability penalties as follows:

(A)

In an amount that does not exceed two thousand dollars ($2,000.00) for each day for failing or refusing to furnish technical or monitoring reports.

(B)

In an amount that does not exceed three thousand dollars ($3,000.00) for each day for failing or refusing to timely comply with any compliance schedule established by the District.

(C)

In an amount that does not exceed five thousand dollars ($5,000.00) for each day of intentionally or negligently discharging hazardous waste (as defined in Section 25117 of the Health and Safety Code) or knowing falsifying any information provided in any furnished technical or monitoring report.

(D)

In an amount that does not exceed five thousand dollars ($5,000.00) per violation for each day for discharges in violation of any waste discharge limitation, wastewater discharge permit condition, or requirement issued, reissued, or adopted by the District.

(E)

In an amount that does not exceed ten dollars ($10.00) per gallon for discharges in violation of any of the District's cease and desist or other orders or prohibitions issued, reissued, or adopted by the District.

(F)

In determining the appropriate civil penalty to assess, the District may consider all relevant circumstances to the extent allowed by law, including, but not limited to, the extent of harm caused by the violation, the economic benefit derived through noncompliance, the nature and persistence of the violation, the length of time over which the violation occurs, any corrective action attempted or taken by the discharger, and any prior history of violations.

Unless appealed, orders that set administrative civil liability shall become effective and final upon the issuance thereof and the user shall make the payment within thirty (30) days. The District shall seek a lien against the user's property for unpaid civil liability penalties that are at least sixty (60) days delinquent.

(4)

A person dissatisfied with the decision of the District or General Manager may appeal the decision to the Board of Directors within thirty (30) days of notice of the decision. Any party aggrieved by a final order issued by the Board of Directors may obtain judicial review of the order within thirty (30) days after the issuance of the final order.

(5)

Other Action. Issuance of an administrative civil penalty shall not be a bar against or prerequisite to the District taking any other action against the user. The District shall not recover administrative civil liability penalties for any violation for which the District already recovered civil penalties through a judicial proceeding.

(6)

Emergency Suspensions.

(A)

The General Manager may immediately suspend a discharge after informal notice to the user whenever necessary to stop an actual or threatened discharge that reasonably appears to present or cause imminent or substantial endangerment to the public health or welfare or environment. The General Manager may also immediately suspend a user's discharge after notice and opportunity to respond where the discharge interferes or threatens to interfere with operation of the POTW.

(B)

Any user notified of a discharge suspension shall immediately stop or eliminate the user's discharge contribution. In the event a user fails to immediately comply with the suspension order, the General Manager may take steps such as immediate severance of the sewer connection to prevent or minimize damage to the POTW, its receiving stream, or endangerment to any individuals. The General Manager may allow the user to recommence its discharge after the user demonstrates to the General Manager's satisfaction that the period of endangerment passed unless the District initiates revocation or termination proceedings pursuant to this Ordinance. Nothing in this Ordinance requires a hearing prior to any emergency suspension.

(C)

A user responsible in whole or in part for any discharge that presents an imminent endangerment shall submit a detailed written statement that describes the causes of the harmful contribution and measures taken to prevent any future occurrence. The user shall submit such statement to the General Manager prior to the date of any show cause, revocation, or termination hearing under this Ordinance or within fifteen (15) days of the date of the suspension notification if there is no such hearing.

(7)

Suspension and Revocation of Wastewater Discharge Permit. Any user that does any of the following is subject to an order to suspend or revoke the user's wastewater discharge permit:

(A)

Fails to complete a wastewater survey or the wastewater discharge permit application;

(B)

Fails to accurately report the wastewater constituents and characteristics of the discharge;

(C)

Fails to report significant changes in operations or wastewater volume, constituents, or characteristics prior to the changed discharge;

(D)

Refuses to provide records, plans, reports, or other documents required by the District to determine permit terms, conditions, or limits; discharge compliance; or compliance with this Ordinance;

(E)

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

(F)

Violates the any wastewater discharge permit condition or compliance schedule, pretreatment standard, or other provision of this Ordinance (e.g., notification requirements);

(G)

Falsifies, tampers with, or knowingly renders inaccurate any monitoring device or sample collection method;

(H)

Discharges effluent to the District's sewerage system while the user's permit is suspended; or

(I)

Fails to make timely payment of all amounts owed to the District for user charges, noncompliance sampling fees, permit fees, or any other fees, charges, or penalties imposed pursuant to this Ordinance.

At least fifteen (15) days in advance of the proposed termination date, the District shall notify the user by personal service or registered or certified mail of the proposed termination of the user's discharge. The notification shall offer the user an opportunity to show cause under Subsection MH-5-6901(c) of this Ordinance as to why the District should not terminate the discharge as proposed. The District may stay the termination pending the outcome of the show cause hearing.

(8)

Physical Termination of Service. In addition to any other enforcement remedies, whenever a user violated or continues to violate any provision of this Ordinance, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, the District may disconnect the user's sewer system from the POTW's sewerage works upon issuance of an administrative order to that affect. Service will recommence at the user's expense only after the user demonstrates to the District's satisfaction the user's ability to comply.

(9)

Appeal of Administrative Actions. Except as otherwise provided in this Ordinance, any permit applicant or holder or other discharger affected by any decision, determination, or other action made by the District when it interprets or implements this Ordinance, any wastewater discharge permit issued hereunder, or any other

pretreatment standard or requirement may file a written request for reconsideration with the General Manager within thirty (30) days of such decision, determination, or other action. The written request must set forth detailed facts that support the request, and the person who seeks reconsideration must promptly furnish all additional documents and other relevant information relevant upon the General Manager's request. Failure to promptly furnish such documents and other information shall be grounds for the General Manager to deny the request for consideration. The General Manager may elect to hold a hearing on any request for consideration. The General Manager may establish rules and regulations to govern such hearings. If the General Manager fails to act within forty-five (45) days of any request for reconsideration, the request shall be deemed denied. If the General Manager holds a reconsideration hearing, he or she shall issue a detailed decision with findings on the request of reconsideration within ten (10) days from the close of the hearing. The General Manager's decision shall take effect on the fifteenth (15) day after being mailed to the requesting party. The decision, determination, or other action for reconsideration shall remain in effect during such period of review by the General Manager.

If the General Manager's ruling is unsatisfactory to the person who requests reconsideration, the person may file a written appeal to the Board of Directors within fifteen (15) days of the General Manager's final decision or order. The written appeal shall state all pertinent aspects of the matter. The District shall return any appeal fee if the final order issued by the Board of Directors reverses or modifies the decision, determination, or other action in favor of the appellant. Within thirty (30) days after the written appeal is received, the Board of Directors shall hold a hearing or designate a neutral hearing officer to hold a hearing after due notice to the appellant. The Board of Directors shall provide notice of the hearing to the appellant by personal service or registered or certified mail at least fifteen (15) days before the hearing. The Board of Directors may establish rules and regulations to govern the hearings of such appeals. In any event, the appellant may appear personally or through counsel to cross-examine witnesses and present evidence. The Board of Directors shall make a final ruling by way of an order that contains findings of fact on the appeal within fifteen (15) days after the close of the hearing or receipt of the hearing officer's advisory opinion. The hearing officer shall submit his or her advisory opinion to the Board of Directors within ten (10) days after the close of the hearing. The decision, determination, or other action on appeal shall remain in effect during such period of review by the Board of Directors.

(Ord. 4353 § 1 (part), 2008; Ord. 4360 § 1 (part), 2008)

MH-5-6902 - JUDICIAL ENFORCEMENT REMEDIES.

(a)

Injunctive Relief. When the District finds that a user violated, continues to violate, or threatens to violate any provision of this 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 District may petition the appropriate court for the issuance of a temporary and/or permanent injunction as appropriate to restrain or compel the specific performance of the requirement imposed. The District may also seek any other action as is appropriate for legal and/or equitable relief, including a requirement that the user conduct environmental remediation.

(b)

Civil Penalties.

(1)

A user that violated, continues to violate, or threatens to violate any provision of this Ordinance, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement shall be liable to the District for a maximum civil penalty of twenty-five thousand dollars ($25,000.00) 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.

(2)

The District may recover reasonable attorneys' fees, court costs, and other expenses associated with enforcement activities, including sampling and monitoring expenses and the cost of any damages incurred by the District. In the event that the District is subject to the payment of fines or penalties pursuant to the legal authority and actions of other regulatory or enforcement agencies based on a violation of law (including permit requirements) and the District can establish such violation as caused by the discharge of any user in violation of this Ordinance or the user's permit, the District shall be entitled to recover from the user all costs and expenses, including, but not limited to, the full amount of said fines or penalties to which the District was subjected.

(3)

In determining the amount of civil liability, the court shall consider all relevant circumstances to the extent allowed by law, 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 user's compliance history, and any other factor as justice requires.

(c)

Criminal Prosecution.

(1)

Any person who violates any provision of this Ordinance is guilty of a misdemeanor, which upon conviction is punishable by a fine not to exceed one thousand dollars ($1,000.00), imprisonment for not more than thirty (30) days, or both. Each violation and each day in which a violation occurs may constitute a new and separate violation of this Ordinance and shall be subject to the penalties specified herein.

(2)

The District may recover its reasonable attorney's fees, court costs, court reporter's fees, and other litigation expenses incurred by an appropriate suit at law against the user convicted for violating any provision of this Ordinance, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement.

(Ord. 4353 § 1 (part), 2008; Ord. 4360 § 1 (part), 2008)

MH-5-6903 - SUPPLEMENTAL ENFORCEMENT ACTION.

(a)

Penalties for Late Reports. The District may assess a penalty of two hundred dollars ($200.00) to any user for each day that a report required by this Ordinance or a wastewater discharge permit or order issued hereunder is late, beginning five (5) days after the date the report became due and continuing until the twenty-ninth (29th) day after the report became due. The District may assess a penalty of three hundred dollars ($300.00) to any user for each day thereafter that the report is overdue. Actions taken by the District to collect late reporting penalties shall not limit its authority to initiate other enforcement actions that may include penalties for late reporting violations.

(b)

Payment of Outstanding Fees and Penalties. The District may decline to issue or reissue a wastewater discharge permit to any user that failed to pay any outstanding fees, fines, or penalties incurred as a result of any provision of this Ordinance or a previous wastewater discharge permit or order issued hereunder.

(c)

Public Nuisances. A violation of any provision of this Ordinance, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement is hereby declared a nuisance and shall be corrected or abated as directed by the District. Any user(s) or person(s) which create a nuisance shall be subject to the provisions of State and local law that govern such nuisances, including reimbursing the District for any costs incurred in removing, abating, or remedying said nuisance.

(Ord. 4353 § 1 (part), 2008; Ord. 4360 § 1 (part), 2008)

MH-5-6904 - REMEDIES NONEXCLUSIVE.

The remedies provided for in this Ordinance are not exclusive. To the extent allowed by law, the District may take any, all, or any combination of these actions against a noncompliant user.

(Ord. 4353 § 1 (part), 2008; Ord. 4360 § 1 (part), 2008)

MH-5-6905 - AFFIRMATIVE DEFENSES TO DISCHARGE VIOLATIONS.

(a)

Upset.

(1)

For the purposes of this Subsection, "upset" means an exceptional incident in which there is unintentional and temporary noncompliance with categorical pretreatment standards because of factors beyond the user's reasonable control. 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.

(2)

An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards only if the user demonstrates through properly signed, contemporaneous operating logs or other relevant evidence that:

(A)

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

(B)

The facility was at the time being operated in a prudent and professional manner and in compliance with applicable operation and maintenance procedures; and

(C)

The user submitted the following information to the District within twenty-four (24) hours of becoming aware of the upset if the user provides the information orally, the user must follow-up with a written submission within five (5) days from the date of the oral notification:

(i)

A description of the indirect discharge and cause of noncompliance;

(ii)

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

(iii)

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

(3)

In any enforcement proceeding, the user that seeks to establish the occurrence of an upset shall have the burden of proof.

(4)

The user shall have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for noncompliance with categorical pretreatment standards.

(5)

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

(b)

Prohibited Discharge Standards. A user shall have an affirmative defense to an enforcement action brought against the user for noncompliance with the general prohibitions in Section MH-5-6201 of this Ordinance or the specific prohibitions in Section MH-5-6202 of this Ordinance except for paragraphs (a), (b), and (h) if the

user 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 either:

(1)

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

(2)

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

(c)

Bypass.

(1)

For the purposes of this subsection, "bypass" means the intentional diversion of wastestreams from any portion of a user's treatment facility, and "severe property damage" means substantial physical damage to property, damage to the treatment facilities which causes them to become inoperable, or substantial and permanent loss of natural resources reasonably expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production.

(2)

A user may allow any bypass to occur that does not cause the user to violate pretreatment standards or requirements, but only if the bypass also is for essential maintenance to assure efficient operation. These bypasses are not subject to the provision of Subsections MH-5-6905 (c)(3), MH-5-6905(c)(4) and MH-5- 6905(c)(5) of this Ordinance.

(3)

Bypass Notifications.

(A)

lf a user knows in advance of the need for a bypass, the user shall submit prior notice to the District at least ten (10) days before the date of the bypass, if possible.

(B)

A user shall submit oral notice to the District of an unanticipated bypass that exceeds applicable pretreatment standards within twenty-four (24) hours from the time the user becomes aware of the bypass. A written submission shall also be provided within five (5) 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 reoccurrence of the

bypass. The District may waive the written report on a case-by-case basis if the oral report has been received within twenty-four (24) hours.

(4)

Bypass is prohibited, and the District may take an enforcement action against a user for a bypass unless:

(A)

The 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 that occurred during normal periods of equipment downtime or preventive maintenance; and

(C)

The user submitted notices as required by Subsection MH-5-6905(c)(3).

(5)

The District may approve an anticipated bypass after the District considers any adverse effects if it determines that the bypass will meet the three (3) conditions listed in Subsection MH-5-6905(c)(4) of this Ordinance.

(Ord. 4353 § 1 (part), 2008; Ord. 4360 § 1 (part), 2008)