Ventura Municipal Code Art. 6 Administrative Enforcement Remedies

Unless otherwise provided herein, any notice required to be given by the city under this chapter shall be in writing and served in person or by registered or certified mail. If served by mail, the notice shall be sent to the last address known to the public works director.

Notice shall be deemed to have been given at time of deposit, postage prepaid, in a facility regularly serviced by the United States Postal Service. (Ord. No. 2010-002, § 2, 2-1-10)

If any person discharges, directly or indirectly, any substance into the POTW in violation of any provision of this division, such person shall be liable to the city for all damages resulting therefrom, for any cost of cleaning, repair and restoration of the POTW, and for any costs of additional treatment required as a result of that act. The public works director shall determine the amount of such costs and shall deliver to the person responsible for deposit of the substance in the POTW a statement of such costs. Collection of such costs, application of funds and remedies for nonpayment shall be in accordance with the provisions of Chapter 22.220 for collection of sewer rental charges. (Ord. No. 2010-002, § 2, 2-1-10)

Any unauthorized entering, breaking, damaging, destroying, uncovering, defacing or tampering done to any structure, equipment or appurtenance which is a part of the POTW shall be a violation of this division and subject to prosecution under any and all applicable laws. (Ord. No. 2010-002, § 2, 2-1-10)

40 CFR Section 403.8(f)(5) requires the city to develop and implement an enforcement response plan (ERP) to investigate and respond to instances of industrial user noncompliance. This ERP is a detailed enforcement procedure that lists key steps necessary to assure that wastewater discharges maintain compliance with all local, state and federal limitations.

The ERP outlines the procedures followed by pretreatment program staff to identify, document, and respond to noncompliance. Incorporated into the ERP are specific criteria by which pretreatment program staff can determine the enforcement action most appropriate to the nature of the noncompliance. In addition, the ERP describes the duties of the environmental compliance inspectors; methods used to determine compliance with applicable regulations; and procedures to review compliance data.

The enforcement response guide (ERG) is a table referencing the degree of noncompliance with the type of enforcement response to be taken. The ERG lists the most common types of noncompliance and enforcement action taken. This ERP has been prepared by following EPA’s guidance for developing control authority enforcement response plans. Both the city of Ventura’s ERP and ERG are incorporated in this chapter by reference. (Ord. No. 2010-002, § 2, 2-1-10)

The environmental compliance inspector may issue a notice of noncompliance and correction after apparent noncompliance is discovered or when an actual violation occurs which indicates a slight level of noncompliance as shown in the ERP and does not warrant a notice of violation. The notice of noncompliance and correction may also be issued to an IU in lieu of a notice of violation if the past record of the industry has shown adherence to applicable regulations and discharge limits, and there is reason to believe that the suspected violation may be due to laboratory error, typographical error, or some other unusual circumstance. Together with the notice of noncompliance and correction, the control authority shall enter into an agreement or understanding with the discharging IU to make corrections and come into compliance within a reasonable time and avoid escalation of enforcement action. The control authority may upgrade the notice of noncompliance and correction to a notice of violation as deemed necessary. (Ord. No. 2010-002, § 2, 2-1-10)

When the control authority finds that an IU has violated, or continues to violate, any provision of this chapter, a nondomestic wastewater discharge permit, or a general permit or order issued hereunder, or any other pretreatment standard or requirement that is considered to be greater than the “slight level of noncompliance” designation given in the ERP, the control authority may serve upon that IU a written notice of violation. A single NOV may be issued for each noncompliance with a numerical limit, or for a series of consecutive daily exceedances of the same numerical limit, which constitute an event. Over longer periods, separate NOVs may be issued for a pattern of separate exceedances of a numerical limit for a single pollutant or multiple pollutants. NOVs may also be issued for noncompliance with regulations or requirements of the wastewater discharge permit or the program as decided on a case-by-case basis. Within 14 days of the receipt of such 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 IU to the control authority. Submission of such a plan in no way relieves the IU of liability for any violations occurring before or after receipt of the notice of violation. Once the explanation and plan has been submitted, a compliance meeting with the senior environmental compliance inspector may be scheduled. As a result of the meeting, a compliance agreement including a compliance schedule may be issued to the industrial user by the senior environmental compliance inspector. Nothing in this section shall limit the authority of the public works director to take any action, including emergency actions or any other enforcement action, without first issuing a notice of violation.

Where the above compliance agreement fails to achieve compliance within the time period indicated in the compliance schedule, the control authority shall develop and issue, without necessarily first consulting the noncompliant IU, a first compliance order containing further required actions together with a new compliance schedule. The first compliance order shall be issued together with a notice of continuing violation for the same noncompliance referred to in the original notice of violation. The first compliance order shall also detail the escalating enforcement options the city may pursue if compliance is not achieved within the time schedule specified. Administrative fines will also be assessed at this level of enforcement. (Ord. No. 2010-002, § 2, 2-1-10)

The control authority shall assess all permitted industrial users at the end of each pretreatment quarter to determine if they were in significant noncompliance (“SNC”), as that term is defined in Section 22.240.160, at any point during the previous six-month period. The control authority shall publish annually, in a newspaper of general circulation that provides meaningful public notice within the jurisdictions served by the POTW, a list of the permitted industrial users which, at any time during the previous 12 months, were in significant noncompliance with the applicable requirements of this chapter, or any pretreatment standard or requirement. (Ord. No. 2010-002, § 2, 2-1-10)

The public works director may enter into consent orders, assurances of compliance, or other similar documents establishing an agreement with any user responsible for noncompliance. Such documents shall 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 effect as the compliance and cease and desist orders issued pursuant to Sections 22.240.660 and 22.240.665 and shall be judicially enforceable. (Ord. No. 2010-002, § 2, 2-1-10)

The control authority may order an IU which has violated, or continues to violate, any provision of this chapter, a nondomestic wastewater discharge permit, or a general permit or order issued hereunder, or any other pretreatment standard or requirement, to appear before the city and show cause why the proposed enforcement action contained in a compliance order should not be taken. Notice shall be served on the IU specifying the time and place for the meeting, the proposed enforcement action, the reasons for such action, and a request that the IU 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 30 days prior to the hearing. Such notice may be served on any authorized representative of the IU as defined in Section 22.240.160, and required by Section 22.240.335(A). A show cause hearing shall not be a bar against, or prerequisite for, taking any other action against the IU. (Ord. No. 2010-002, § 2, 2-1-10)

When the control authority finds that an IU has violated, or continues to violate, any provision of this chapter, a nondomestic wastewater discharge permit, or a general permit or order issued hereunder, or any other pretreatment standard or requirement, the control authority may issue a notice of continuing violation together with a first compliance order to the IU responsible for the discharge directing that the IU come into compliance within a specified time. If the IU does not come into compliance within the time provided, the user may be called to a show cause hearing and a final compliance order may be developed by the control authority. The final compliance order shall contain requirements for adequate treatment facilities, devices, or other related appurtenances to be installed and properly operated by the IU to return to compliance. The final compliance order shall also contain compliance time schedules, and shall inform the IU that this is the last enforcement action before sewer service may be discontinued and the permit may be revoked. 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 POTW. A compliance order may not extend the deadline for compliance established for a pretreatment standard or requirement, nor does a compliance order relieve the IU 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 IU. (Ord. No. 2010-002, § 2, 2-1-10)

When the control authority finds that a user has violated, or continues to violate, any provision of this chapter, a nondomestic wastewater discharge permit, or a general permit or order issued hereunder, or any other pretreatment standard or requirement, or that the user’s past violations are likely to recur, the public works director 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. 2010-002, § 2, 2-1-10)

A. When the public works director finds that a user has violated, or continues to violate, any provision of this chapter, a nondomestic wastewater discharge permit, or a general permit or order issued hereunder, or any other pretreatment standard or requirement, the public works director may fine such user in an amount not to exceed $1,000. Such fines shall be assessed on a per violation, per day basis. In the case of monthly or other long-term average discharge limits, fines shall be assessed for each day during the period of violation.

B. Unpaid charges, fines, and penalties shall, after 30 calendar days, be assessed an additional penalty of 15 percent of the unpaid balance, and interest shall accrue thereafter at a rate of 15 percent per month. A lien against the user’s property shall be sought for unpaid charges, fines, and penalties.

C. Any nondomestic wastewater discharger adversely affected by any decision, action or determination made by or on behalf of the city in interpreting or implementing the provisions of this article may file with the city clerk a written request for reconsideration. Such request shall be acted upon by the public works director within 45 days from the date of filing.

If a ruling made by the public works director is unsatisfactory to the person requesting reconsideration, the person may make a written appeal to the city council within 45 days after notice of action taken by the public works director.

The written appeal to the council shall state all the pertinent aspects of the matter, and shall be accompanied by a fee of $200.00, $150.00 of which shall be refunded if the appeal is sustained; provided, however, that a public agency shall not be required to pay such appeal fee. Within 45 days after the written appeal is received, the city council shall hold a hearing on the matter. At this hearing, the person may appear personally or through counsel, cross-examine witnesses and present evidence in their own behalf. Notice of the hearing shall be given at least 15 days prior to the date of hearing. If additional information is required for the council to fairly decide on the appeal, the cost of obtaining such information shall be paid by the appellant prior to any decision by the council and such cost shall not be refunded. Within 45 days after the hearing is closed, the city council shall rule on the appeal, which ruling shall be final. The public works director may add the costs of preparing administrative enforcement actions, such as notices and orders, to the fine.

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. 2010-002, § 2, 2-1-10)

The public works director 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, which reasonably appears to present, or cause an imminent or substantial endangerment to the health or welfare of persons. The public works director 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 which presents, or may present, an endangerment to the environment. The public works director shall report the circumstances of any suspension to the city council at its next regular meeting following such suspension.

A. Any user notified of a suspension of its discharge shall immediately stop or eliminate its contribution. In the event of a user’s failure to immediately comply voluntarily with the suspension order, the public works director may take such steps as deemed necessary, including immediate severance of the POTW connection, to prevent or minimize damage to the POTW, its receiving stream, or endangerment to any individuals. The cost and expenses so incurred by the city shall be paid by the IU upon presentation by the city of an invoice and demand for payment. If not paid within 60 days, said amounts shall become a lien on the property and shall be collected at the same time and in the same manner as local real property taxes. The city council may take any steps, including the holding of any hearings and the adoption of any resolutions, necessary to perfect such lien. The public works director may allow the user to recommence its discharge when the user has demonstrated to the satisfaction of the public works director that the period of endangerment has passed, unless the termination proceedings in Section 22.240.680 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 public works director prior to the date of any show cause or termination hearing under Section 22.240.655 or 22.240.680.

Nothing in this section shall be interpreted as requiring a hearing prior to any emergency suspension under this section. (Ord. No. 2010-002, § 2, 2-1-10)

In addition to the provisions in Section 22.240.370, any user who violates the following conditions is subject to discharge termination:

A. Violation of nondomestic wastewater discharge permit or general permit conditions;

B. Failure to accurately report the wastewater constituents and characteristics of its discharge;

C. Failure to report significant changes in operations or wastewater volume, constituents, and characteristics prior to discharge;

D. Refusal of reasonable access to the user’s premises for the purpose of inspection, monitoring, or sampling; or

E. Violation of the pretreatment standards in Article 2 of this chapter;

F. Failure to come into compliance after the time period for a final compliance order has expired.

Such user will be notified of the proposed termination of its discharge and be offered an opportunity to show cause under Section 22.240.655 why the proposed action should not be taken. Exercise of this option by the public works director shall not be a bar to, or a prerequisite for, taking any other action against the user. (Ord. No. 2010-002, § 2, 2-1-10)

When the public works director finds that a user has violated, or continues to violate, any provision of this chapter, a nondomestic wastewater discharge permit, or a general permit or order issued hereunder, or any other pretreatment standard or requirement, the public works director may petition superior court of California, Ventura County, through the city’s attorney for the issuance of a temporary or permanent injunction, as appropriate, which restrains or compels the specific performance of the nondomestic wastewater discharge permit, the general permit, order, or other requirement imposed by this chapter on activities of the user. The public works director 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. 2010-002, § 2, 2-1-10)

A. A user who has violated, or continues to violate, any provision of this chapter, a nondomestic wastewater discharge permit, or a general permit or order issued hereunder, or any other pretreatment standard or requirement shall be liable to the city for a maximum civil penalty of $1,000 per violation, per day. In the case of a monthly or other long-term average discharge limit, penalties shall accrue for each day during the period of the violation.

B. The public works director may recover reasonable attorneys’ fees, court costs, and other expenses associated with enforcement activities, including sampling and monitoring expenses, and the cost of any actual damages incurred by the city.

C. In determining the amount of civil liability, the court shall take into account all relevant circumstances, 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 compliance history of the user, and any other factor as justice requires.

D. Filing a suit for civil penalties shall not be a bar against, or a prerequisite for, taking any other action against a user. (Ord. No. 2010-002, § 2, 2-1-10)

A. A user who willfully or negligently violates any provision of this chapter, a nondomestic wastewater discharge permit, or a general permit or order issued hereunder, or any other pretreatment standard or requirement shall, upon conviction, be guilty of a misdemeanor, punishable by a fine of not more than $1,000 per violation, per day, or imprisonment for not more than six months, or both.

B. A user who willfully or negligently introduces any substance into the POTW which causes personal injury or property damage shall, upon conviction, be guilty of a misdemeanor and be subject to a penalty of at least $1,000 per violation, per day or be subject to imprisonment for not more than six months, or both. This penalty shall be in addition to any other cause of action for personal injury or property damage available under state law.

C. A user who knowingly makes any false statements, representations, or certifications in any application, record, report, plan, or other documentation filed, or required to be maintained, pursuant to this chapter, nondomestic wastewater discharge permit, or general 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 of not more than $1,000 per violation, per day or imprisonment for not more than six months, or both.

D. In the event of a second conviction, a user shall be punished by a fine of not more than $1,000 per violation, per day or imprisonment for not more than six months, or both. (Ord. No. 2010-002, § 2, 2-1-10)