Upland Municipal Code § 13.32.510 Purpose and scope

A. Any user who has violated or continues to violate this chapter, an industrial wastewater permit, an NPDES permit, any prohibition, limitation, or requirement contained herein, is subject to enforcement actions administratively or judicially by the city, EPA, California Regional Water Quality Control Board, or the County of San Bernardino district attorney. The actions may be taken pursuant to the authority and provisions of several laws, including, but not limited to, the Clean Water Act, Resource Conservation and Recovery Act, California Porter-Cologne Water Quality Act and the California Hazardous Waste Control Law.

B. The city council finds that in order for the city to comply with such laws and regulations, and to ensure that the city's facilities and the POTW are protected and able to operate with the highest degree of efficiency, and to protect public health and the environment, specific enforcement provisions must be adopted to govern the discharge of wastewater into the community sewer and the public storm drainage systems.

C. To ensure that all interested parties are afforded due process of law and that noncompliance and violations are resolved in a timely manner, the general policy of the city is that any administrative order will be determined and made by the public works director.

D. Any powers granted to or duties imposed upon the public works director may be delegated by the public works director to persons acting in the beneficial interest of or in the employ of the city.

E. The enforcement actions under this article shall apply to violations relative to the use and discharges to both the community sewers and public storm drainage system, as applicable.

(Prior code § 5890.1)

A. Notice of Violation.

1. Whenever the public works director finds that a user has violated or continues to violate this chapter, a nondomestic wastewater discharge permit, an NPDES permit, an order issued hereunder, or any prohibition, limitation, or requirement contained herein, the director shall serve upon the user a written notice stating the nature of the violation and the penalties for continued noncompliance.

2. Whenever the user receives a notice of violation, such user shall submit to the director, within 10 days from the date of the notice, a written explanation of the cause of the violation and the corrective actions which have been taken to prevent recurrence of such violation. In case of a violation of local or federal discharge limit, the user shall repeat the sampling, test for each constituent in violation and submit the results to the director within 30 days from the day of the notice.

3. If the user fails to correct a violation within 45 days from the date of the notice, or a violation has occurred more than once within a one-year period, the user shall submit a compliance schedule. Such user shall also conduct additional monitoring as may be required by the director.

4. Unless otherwise provided herein, any notice required to be given by the director under this chapter shall be in writing and served in person or by certified mail. Notice shall be deemed to have been given at the time of deposit, postage prepaid in a facility regularly serviced by the U.S. Postal Service. Any time limit provided in any written notice or in any provision of this chapter shall be extended only by a written discretion of the director.

B. Noncompliance Fees.

1. Noncompliance with wastewater discharge requirements of this chapter, the NPDES permits or the discharger's nondomestic wastewater discharge permit may be determined by an analysis of a grab or composite sample of the discharge to the community sewer or the public storm drainage system. Sampling of a discharger's wastewater or discharge shall be conducted in the time, manner and frequency determined at the sole discretion of the director.

2. A discharger shall be deemed guilty of a separate offense for every day during any portion of which any violation of any provision of this chapter is committed, continued or permitted by the discharger.

3. Such user may be subject to administrative and/or legal actions, and shall pay to the city noncompliance fees as established by this section and Section 13.32.260(D) of this chapter, to recover all costs incurred by the city in performing inspections, sampling, and analysis of the user's wastewater, processing notices of violation and conducting enforcement actions.

4. Recovery of Costs for Damages. In the event that a user causes any damage pursuant to Section 13.32.280(F), the user shall be liable for all costs, including administrative and legal costs incurred by the city.

5. Recovery of Fines and Penalties. In the event the city is subjected to payment of fines, penalties or damages pursuant to legal authority and actions of other regulatory and enforcement agencies or CBMWD, based on a violation of law, regulation or NPDES permit, and the violation can be established by the city as caused by the discharge of any user of the sewer or storm drain system which is in violation of any provision of this chapter, the nondomestic wastewater discharge permit, or any other permit, applicable law or regulation relating to the discharge, the city shall be entitled to recover from the user all costs and expenses, including, but not limited to, the full amount of the fines, penalties or damages to which it has been subjected.

6. The payment of noncompliance fees shall not limit the city or any other regulatory agency from undertaking any administrative or legal action. Noncompliance costs shall be in addition to and not in lieu of any civil or criminal liability specified in this chapter.

C. Compliance Schedule—Compliance Order.

1. Upon determination that a user is in noncompliance with the terms, conditions, or limitations specified in the user's nondomestic wastewater discharge permit, or with any provision of this chapter, the public works director may require the user to submit for review and approval a compliance schedule.

2. The director may revise or amend the user's nondomestic wastewater discharge permit to provide for conditions under which such user must operate during the term of the compliance schedule. The amended permit may contain additional conditions including, but not limited to, interim discharge limits and/or limits on flow rates and time of discharge.

3. If during the term of a compliance schedule the user fails to comply with the terms, conditions or limitations specified in the compliance schedule, the user's nondomestic wastewater discharge permit, or with any provisions of this chapter, then the user shall be subject to noncompliance fees.

4. The director may extend the compliance schedule for an additional time period, provided the user shows good cause, including, but not limited to, reasonable progress under the terms of the compliance schedule. However, a compliance schedule shall not extend beyond applicable federal deadlines.

5. If following the compliance schedule expiration date the user fails to comply with the terms, conditions, or limitations specified in the compliance schedule, the discharge permit, or with any provisions of this chapter, then the user may be subject to noncompliance fees, a probation order, a cease and desist order, and/or legal actions.

D. Probation Order. The public works director may issue a probation order whereby the user must comply with all directives, conditions and requirements therein within the time prescribed. The probation order may contain terms and conditions including, but not limited to, submittal of drawings or technical reports, limits on flow rate and time of discharge or other provisions to ensure compliance with this chapter.

1. The director may issue a probation order on the following instances of noncompliance:

a. Failure to provide records, reports, plans or other documents required by the director;

b. Failure to remain in consistent compliance with the terms and conditions specified in the user's nondomestic wastewater discharge permit, and with the provisions of this chapter;

c. Failure to comply with the terms and conditions of a compliance schedule.

2. When the director has reason to believe that grounds exist to issue a probation order, the director shall give written notice of a hearing thereof, either by personal delivery or by certified mail, to the user setting forth a statement of the facts and the grounds deemed to exist, together with the time and place where the charges shall be heard.

3. After the conclusion of the hearing, the director shall make his or her determinations and shall issue his or her decision and written order within 30 calendar days of the hearing. The written decision and order of the director shall be sent either by personal delivery or by certified mail to the user.

a. The order of the director shall be final in all aspects 14 days after it has been mailed or delivered to the user, unless a request for a hearing is filed with the city council.

b. A user may appeal the director's order to the city council, which will hold a hearing relative thereto. In these cases, the city shall apply appropriate administrative charges for such proceedings. Findings by the city council as a result of the appeal shall be final.

5. The probation order shall remain in effect for at least one year. At the end of the year, the director may lift the probation order if the user remains in consistent compliance with the terms of the order, the conditions and limitations specified in the discharge permit and with provisions of this chapter.

a. Any owner or responsible management employee of the user shall be bound by the probation order.

b. Failure of the user to comply with the conditions of the probation order may result in a cease and desist order, permit suspension, permit revocation, and/or legal action.

E. Consent Orders. The public works director may enter into consent orders, assurances of voluntary compliance or other similar documents establishing an agreement with an IU responsible for noncompliance. Such order will include specific actions to be taken by the IU to correct noncompliance within a specified time period.

F. Cease and Desist Order. The public works director may issue a cease and desist order, whereby the IU must comply with all directives, conditions, and requirements therein within the time prescribed. The cease and desist order may contain terms and conditions including, but not limited to, limits on flow rate and time of discharge or other provisions to ensure compliance with this chapter.

1. The director may issue a cease and desist order when an IU:

a. Fails to comply with the terms and conditions specified in the user's nondomestic wastewater discharge permit, and with the conditions of this chapter;

b. Fails to submit a compliance schedule;

c. Fails to comply with the terms and conditions of a compliance schedule or a probation order; or

d. Fails to comply with a notice of violation.

2. When the director has reason to believe that grounds exist to issue a cease and desist order, the director shall give written notice of a hearing thereof, either by personal delivery or by certified mail, to the user setting forth a statement of the facts and the grounds deemed to exist, together with the time and place where the charges shall be heard.

3. After the conclusion of the hearing, the director shall make his or her determinations and shall issue his or her decision and written order within 30 calendar days of the hearing. The written decision and order of the director shall be sent either by personal delivery or by certified mail to the user.

a. The order of the director shall be final in all aspects 14 days after it has been mailed or delivered to the user, unless a request for a hearing is filed with the city council.

b. A user may appeal the director's order to the city council, which will hold a hearing relative thereto. In these cases, the city shall apply appropriate administrative charges for such proceedings. Findings by the city council as a result of the appeal shall be final.

5. The cease and desist order shall remain in effect for at least one year. At the end of the year, the director may lift the order if the user remains in consistent compliance with the terms of the order, the conditions and limitations specified in the discharge permit and with provisions of this chapter.

a. Any owner or responsible management employee of the user shall be bound by the probation order.

b. Failure of the user to comply with the conditions of the order may result in permit suspension, permit revocation, termination of service and/or legal action.

G. Permit Suspension. The public works director may issue a permit suspension order whereby the IU must comply with all directives, conditions, and requirements therein within the time prescribed. The suspension order shall contain terms and conditions to ensure compliance with this chapter.

1. The director may suspend a nondomestic wastewater discharge permit when it is determined that an IU:

a. Fails to comply with the terms and conditions specified in the user's nondomestic wastewater discharge permit, and with the conditions of this chapter, or an administrative order;

b. Fails to provide records, reports, plans or other documents required by the director;

c. Fails to report changes in operations which result in significant changes in quantity and quality of the user's wastewater;

d. Refuses reasonable access to the user's premises for purposes of inspection and monitoring; or

e. Does not make timely payment of all amounts owed to the city for user charges, noncompliance fees, or any other fees.

2. When the director has reason to believe that grounds exist for permit suspension, the director shall give written notice of a hearing thereof, either by personal delivery or by certified mail, to the user setting forth a statement of the facts and the grounds deemed to exist, together with the time and place where the charges shall be heard.

3. After the conclusion of the hearing, the director shall make his determinations and shall issue his decision and written order within 30 calendar days of the hearing. The written decision and order of the director shall be sent either by personal delivery or by certified mail to the user.

a. The order of the director shall be final in all aspects 14 days after it has been mailed or delivered to the user, unless a request for a hearing is filed with the city council.

b. A user may appeal the director's order to the city council, which will hold a hearing relative thereto. In these cases, the city shall apply appropriate administrative charges for such proceedings. Findings by the city council as a result of the appeal shall be final.

5. Upon an order of suspension becoming final, the user shall have no right to discharge any nondomestic wastewater directly or indirectly to the community sewers for the duration of the suspension.

a. Any owner or responsible management employee of the user shall be bound by the suspension order.

b. The director may reinstate the nondomestic wastewater discharge permit upon proof of compliance with all the permit suspension requirements, provided that the director is satisfied that all the corrective actions have been implemented.

c. Failure of the IU to comply with all the permit suspension requirements may result in permit revocation, termination of service and/or legal action.

H. Permit Revocation. The public works director may issue a permit revocation whereby the IU must comply with all directives, conditions, and requirements therein within the time prescribed. The revocation order shall contain terms and conditions to ensure compliance with this chapter.

1. The public works director may revoke a nondomestic wastewater discharge permit when it is determined that an IU:

a. Fails to comply with the terms and conditions specified in the user's nondomestic wastewater discharge permit, any provision of this chapter, or an administrative order;

b. Knowingly provides to the director a false statement, representation, record, report or document;

c. Falsifies, tampers with, or knowingly renders inaccurate any monitoring and/or sampling device;

d. Fails to report changes in operations which result in significant changes in quantity and quality of the user's wastewater;

e. Fails to notify the director of an upset or bypass occurrence; or

f. Discharges wastewater that causes an upset, an interference or a pass through at the POTW.

2. When the public works director has reason to believe that grounds exist for permit revocation, the director shall give written notice of a hearing thereof, either by personal delivery or by certified mail, to the user setting forth a statement of the facts and the grounds deemed to exist, together with the time and place where the charges shall be heard.

3. After the conclusion of the hearing, the public works director shall make his or her determinations and shall issue his or her decision and written order within 30 calendar days of the hearing. The written decision and order of the public works director shall be sent either by personal delivery or by certified mail to the user.

a. The order of the public works director shall be final in all aspects 14 days after it has been mailed or delivered to the user, unless a request for a hearing is filed with the city council.

b. A user may appeal the public works director's order to the city council, which will hold a hearing relative thereto. In these cases, the city shall apply appropriate administrative charges for such proceedings. Findings by the city council as a result of the appeal shall be final.

5. Upon an order of revocation becoming final, the user shall have no right to discharge any nondomestic wastewater directly or indirectly to the public sewer. All costs for physically terminating the service shall be paid by the user.

a. Any owner or responsible management employee of the user shall be bound by the probation order.

b. Failure of the user to comply with the permit revocation's requirements may result in legal action.

c. Any future application for a permit at any location within the city by any user subject to an order of revocation will be considered by the director after fully reviewing the records of the revoked permit. The city reserves the right to grant or deny the application on the basis of such records.

I. Show Cause Order. The public works director may order an IU which has violated or continues to violate any provision of this chapter, or who causes or contributes to a violation of this chapter, or any order or permit issued hereunder to appear at city hall at a certain date and time to show cause to the public works director as to why a criminal and/or civil enforcement action should not be taken. The city attorney or authorized representative may attend this hearing to present the city's legal position and the penalties which can be assessed to the violating IU. A written notice of the hearing specifying the time and place for the meeting, the proposed enforcement action, and the reasons for such action shall be sent to the user, either by personal delivery or by certified mail, at least 10 days prior to the hearing date, and may be served on any authorized representative of the user. A show cause hearing shall not be a bar against, or a requisite for taking any action against the IU.

(Prior code § 5890.2)

A. Injunction—Injunctive Relief. When the public works director finds that an IU violated, continues to violate, has engaged in, is engaged in or is about to be engaged in any act(s) or practice(s) which constitute a violation of this chapter, the discharge permit, or any pretreatment regulation, the city may petition the superior court through the city attorney, for the issuance of a preliminary or permanent injunction, or both, as may be appropriate to restrain the continued violation or to prevent potential violations by the discharger. The director may also seek such other action as is appropriate for legal and/or equitable relief, including a requirement for the IU to conduct environmental remediation. A petition for injunction or injunctive relief shall not be a bar against or a prerequisite for taking another action against a user.

B. Civil Liability—Penalties.

1. Pursuant to Government Code Sections 54739 and 54740, any person who violates any provision of this chapter, an administrative order, or any nondomestic wastewater discharge permit condition shall be civilly liable for a penalty not to exceed $25,000.00 for each day in which such violation occurs. The city attorney, upon order of the city council, shall petition the superior court to impose, assess and recover such penalties. No liability shall be recoverable under this subsection for any violation for which liability is recovered under subsection (B)(2) of this section.

2. Pursuant to the authority of California Government Code Sections 54740.5 and 54740.6, the city may issue an administrative complaint to any user who violates any provision of this chapter, an administrative order, or a nondomestic wastewater discharge permit condition.

a. When the director has reason to believe that grounds exist to issue an administrative complaint, notice shall be given thereof by certified mail to the user setting forth the time and place where the charges shall be heard. The administrative complaint will allege the act or failure to act that constitutes the violation of the city's requirements, the provisions of the law authorizing civil liability to be imposed and the proposed civil penalty. The matter shall be heard by the director, or designee, within 60 days following service. The user may waive the right to a hearing, in which case a hearing will not be conducted.

b. After the conclusion of the hearing, the director shall make his or her determination and issue a decision and an order within 30 calendar days from the hearing date. The written discussion and order of the director shall be sent by certified mail to the user.

c. The order of the director shall be final in all aspects 14 days after it is mailed to the user unless a request for hearing is filed with the city council pursuant to this chapter.

d. If it is found that the IU has violated any provision of this chapter, administrative order, or nondomestic wastewater permit condition, the director may assess a civil penalty against that user. In determining the amount of the civil penalty, the director may take into consideration all relevant circumstances, including, but not limited to, the extent of harm caused by the violation, the economic benefit derived through any noncompliance, the nature and persistence of the violation, the length of time over which the violation occurs and corrective action, if any, attempted or taken by the user involved.

e. Civil penalties may be assessed as follows:

i. In an amount which shall not exceed $2,000.00 for each day for failing or refusing to furnish technical or monitoring reports;

ii. In an amount which shall not exceed $3,000.00 for each day for failing or refusing to comply in a timely manner with any compliance schedule established by the city;

iii. In an amount which shall not exceed $5,000.00 per violation for each day of discharge in violation of any discharge limitation, permit condition, or requirement issued, reissued or adopted by the city;

iv. In an amount which shall not exceed $10.00 per gallon for discharges in violation of any suspension, revocation, cease and desist order or other orders, or prohibition issued, reissued or adopted by the city.

f. Copies of the administrative order setting civil penalties shall be sent to the user by certified mail.

g. Any user aggrieved by a final order issued by the city council pursuant to this section, may obtain a review of the order in the superior court by filing a petition for writ of mandate within 30 days following the service of a copy of such order.

h. Unless appealed, orders setting administrative civil penalties shall become effective and payment on any administrative order setting civil penalties shall be made within 30 days of the date the order becomes final.

3. All moneys collected under this section shall be deposited in a special account of the city, and shall be made available for monitoring and control of discharges into the public sewer and for other enforcement and mitigation measures.

4. Any fines or charges imposed on the city by a regulatory agency as a result of a user's violation of any provisions of this chapter shall be an additional sewer charge to that user.

5. Filing a suit for civil penalties shall not be a bar against or a prerequisite for taking any other action against a user.

C. Criminal Prosecution—Penalties.

1. Any user who wilfully or negligently violates any provision of this chapter, administrative order, or nondomestic wastewater permit condition, or any other pretreatment standard or equivalent shall, upon conviction, be guilty of a misdemeanor punishable by a fine of not less than $1,000.00 or by imprisonment in the county jail for not more than six months or by both. Each day a violation occurs shall constitute a new and separate violation of this chapter and shall be subject to the penalties contained herein.

2. A user who wilfully 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 or be subject to imprisonment or both, in accordance with Water Code Section 13387, CCR. This penalty shall be in addition to any other cause of action for personal injury or property damage available under state law.

3. A user who knowingly makes any false statements, representations, or certifications in any application, record, report, plan, or the documentation filed, or required to be maintained, pursuant to this chapter, wastewater discharge 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 or imprisonment or both in accordance with Water Code Section 13387, CCR.

4. In the event of a second conviction, a user shall be punished by a fine or imprisonment or both in accordance with Water Code Section 13387, CCR.

D. Supplemental Enforcement Actions.

1. Additional Emergency Remedial Measures. The public works director shall have full power and authority to take any necessary precautions including, but not limited to, decontamination, sewer closure, packaging, diking, and transportation of materials, in order to protect life, protect property, or prevent further damage resulting from a condition that is likely to result in a discharge which presents an imminent hazard to the city's sewerage facilities; or which places the regional treatment plant in violation of its NPDES permit. In the pursuit of such an operation, city personnel, any party contracting with the city, or duly authorized representative of another government agency shall have immediate access to the premises. The director may prohibit approach to the scene of such emergency by any person, vehicle, vessel or thing, and all persons not actually employed in the extinguishing of the condition or the preservation of lives and property in the vicinity thereof.

2. Public Nuisances. A violation of any provision of this chapter, wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or requirement is declared a public nuisance and shall be corrected or abated as directed by the public works director. Any person(s) creating a public nuisance shall be subject to the applicable provisions of the Upland Municipal Code governing such nuisances, including reimbursing the city for any costs incurred in removing, abating, or remedying the nuisance.

3. Water Supply Severance. Whenever an IU has violated or continues to violate any provision of this chapter, wastewater discharge permit or other order issued hereunder, or any other pretreatment standard or requirement, water service to the IU may be severed. Service will only resume at the user's expense, after it has satisfactorily demonstrated its ability to comply.

E. Cumulative Remedies. The remedies provided by this chapter are cumulative and shall not be construed as restricting any remedy, provisions, or otherwise, provided by law for the benefit of the city, and no remedy under this chapter shall preclude the city from obtaining additional relief based upon the same facts.

F. Costs. The court, in issuing any final order in any action brought pursuant to this chapter, may award costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or the substantially prevailing party whenever the court determines such an award is appropriate.

G. Compensation for Damage. Any person who, by discharging wastewater or by any other means, damages monitoring equipment, adversely affects wastewater treatment processes, significantly increases POTW operation costs, causes wastewater system blockage, damage, upset, interference, or pass through at the POTW, or causes any other damages, shall be liable to the city for said damages and additional costs, including any fines or penalties, occasioned thereby. An administrative fee, which shall be fixed by the city manager based on the city's current overhead cost allocation percentage and approved by the city council, shall be added to these charges and shall be payable within 30 days of invoicing by the city.

(Prior code § 5890.3)

A. Each IU shall have an affirmative defense in any action brought upon him or her alleging a violation of Section 13.32.140(B) and (C), where the IU can demonstrate according to 40 CFR 403.5(a)(2)(i, ii)(A,B), that:

1. The IU did not know or have reason to know that his or her discharge alone, or in conjunction with a discharge or discharges from other sources, would cause pass through or interference;

2. The IU was in compliance with each local discharge limit directly prior to and during the pass through or interference; or

3. If the local limit of the pollutant causing the violation has not been established in accordance with 40 CFR 403.5(c), the user's discharge directly prior to and during the pass through or interference did not change substantially in quantity and quality from the user's prior discharge activity when the POTW was regularly in compliance with its NPDES permit requirements, and in case of interference, with the sewage sludge use and disposal requirements.

B. Upset Provision.

1. An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the following requirements are met. An IU who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs or other relevant evidence, that:

a. An upset occurred and the IU can identify the specific cause(s) of the upset;

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

c. The IU has submitted the following information to the city within 24 hours of becoming aware of the upset (if this information is provided orally, a written submission must be provided within five days):

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;

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

2. In any enforcement proceeding, the IU seeking to establish the occurrence of an upset shall have the burden of proof.

3. In the usual exercise of prosecutorial discretion, the city's enforcement personnel should review any claim that noncompliance was caused by an upset. No determinations made in the course of the review constitute final city action subject to judicial review. IUs 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.

4. The IU 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.

C. Bypass. A bypass shall constitute an affirmative defense if it does not cause pretreatment standards or requirements to be violated, and only if it is for essential maintenance to assure efficient operation and if it meets the conditions set under Section 13.32.140(E).

(Prior code § 5890.4)