Yuba City Municipal Code Art. 10 Enforcement Response Plan for Industrial User Noncompliance

(a) Purpose of enforcement response plan. The enforcement response plan (ERP) in this article enumerates the enforcement actions and their respective time frames that may be taken by the City of Yuba City against an industrial user for noncompliance with permit conditions, this Code, or Federal and State regulations.

(b) Definitions.

(1) Major violations—significant noncompliance (SNC). Any violation of pretreatment requirements (including limits, sampling, analysis, reporting, and meeting compliance schedules and regulatory deadlines) is an instance of noncompliance for which the industrial user is liable for enforcement, including monetary penalties. Instances of SNC are industrial user violations which meet one or more of the following criteria:

(i) Significant violations of wastewater discharge limits:

A. Chronic violations. 66% or more of all the measurements taken for the same pollutant parameter taken during a six-month period exceed (by any magnitude) a numeric pretreatment standard or requirement, including instantaneous limits as defined in Article 2;

B. Technical review criteria (TRC) violations. 33% or more of the measurements taken for each pollutant parameter during a six-month period equal or exceed the product of the numeric pretreatment standard or requirement, including instantaneous limits, as defined by Article 2 multiplied by the applicable criteria;

There are two groups of TRCs:

Group I for conventional pollutants (BOD, TSS, fats, oils, and/or grease) TRC = 1.4

Group II for all other pollutants except pH TRC = 1.2

C. Any other violation(s) of a pretreatment standard or requirement as defined by Article 2 that the Public Works Director determines has caused, alone or in combination with other discharges, interference (e.g., slug loads) or pass-through, or endangered the health of the wastewater treatment personnel or the public;

D. Any discharge of a pollutant that has caused imminent endangerment to human health/welfare or to the environment or has resulted in the treatment plant's emergency authority to halt or prevent such a discharge;

E. Failure to meet, within 90 days of the scheduled date, a compliance-schedule milestone contained in a local control mechanism or enforcement order, for starting construction, completing construction, or attaining final compliance by 90 days;

F. Failure to provide, within 30 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 or group of violations, which may include a violation of best management practices, which the Public Works Director determines will adversely affect the operation or implementation of the local pretreatment program.

(2) List of violators. The Public Works Director shall publish annually, in a newspaper of general circulation in the Yuba City area, a list of the industrial users who significantly violated applicable pretreatment requirements or standards at least once during the 12 previous months. The notification shall also summarize any enforcement actions taken against the industrial user(s) during the same 12 months.

(3) Officials responsible. The Public Works Director or designee, in accordance with this chapter of this Code, will notify the City Attorney of any civil action or municipal code enforcement required. The District Attorney will prosecute criminal violations of State water or health and safety laws.

(c) Notice of violation and follow-up. When a violation occurs (with the exception of certain insignificant/minor first offenses), a notice of violation (NOV) or a warning letter shall be sent via a certifiable means (U.S. Postal Service, FedEx, UPS, etc.) to the responsible party at the place of business. A written response by the industrial user may be required, which states the cause of the violation, the corrective actions which will be taken to prevent recurrence, and the time frame to complete corrective actions.

(1) If an industrial user fails to take corrective action, if the violation appears to be a part of a recurring pattern, or the level of the violation is of a large magnitude, a formal meeting will be arranged with representatives of the firm and the Public Works Director or designee to discuss the problem or possible corrective actions. At this time, the firm may be issued an administrative order containing or requesting a time schedule for compliance and additional monitoring requirements and/or fines.

(2) Any industrial user who intentionally or willfully violates any provision of any permit issued pursuant to this chapter; intentionally or willfully discharges waste or wastewater which causes pollution; or violates any cease and desist order, established effluent limitations, national standard of performance, or national pretreatment or toxicity standard shall be fined not more than $50,000 for each offense. The Public Works Director, after determining the existence of a violation, may levy fines, which shall be in accordance with this chapter of this Code and applicable State and Federal law. Each day on which a violation occurs or continues shall be deemed a separate and distinct offense.

(3) If noncompliance has been deemed significant (SNC) or in situations where a discharge may pose a threat to the safety of operation of the POTW or its personnel, the industrial user will be issued a cease-and-desist order. This order, issued by the Public Works Director, may order the user to comply immediately or impose additional requirements.

(4) Violations believed to be caused through deliberate acts or intentional discharge of hazardous wastes, as specified in 40 CFR 413 and 433, will be referred to the City Attorney for further enforcement. The City Attorney may then petition the Superior Court of California, County of Sutter for the issuance of a temporary or permanent injunction, as appropriate, which restrains or compels the required performance.

(d) Appeal. Any permit applicant, permit holder, or other discharger affected by any decision, action, or determination made by the Public Works Director, including cease-and-desist orders, may file with the Public Works Director a written request for reconsideration within ten days of such decision, action, or determination, setting forth in detail the facts supporting the request. The Public Works Director will then decide whether to hold a hearing on the request. The Director shall act upon a request for reconsideration within ten days from the date of filing or the close of the reconsideration hearing. The decision, action, or determination shall remain in effect during such period of review by the Director.

If the ruling made by the Public Works Director is unsatisfactory to the person requesting reconsideration, they may, within ten days after notice of the action by the Director, file a written appeal to the City Manager.

The written appeal shall state all pertinent aspects of the matter, and shall include the hearing record if one was requested. Within 30 days after the written appeal is received, the City Manager shall hold a hearing after due notice to the appellant. The City Manager may establish rules and regulations governing the hearing of such appeals. The City Manager shall make a final ruling on the appeal within ten days after close of the hearing. The decision, action, or determination shall remain in effect during such period of review by the City Manager.

Any person who is dissatisfied with the action of the City Manager may appeal to the Council in accordance with Chapter 4 of Title 1 of this Code. In the event of such an appeal, the City Manager shall transmit to the Council a report setting forth the reasons for the action taken.

(e) Civil and criminal penalties. If the industrial user fails to comply with the administrative cease-and-desist order, the City may pursue any of the alternative civil or criminal remedies herein against any discharger.

(Ord. No. 007-16, § 2, 6-21-2016; Ord. No. 001-22, § 3, 1-18-2022)

The following is an outline of the City's ERP enforcement procedures. These procedures were developed according to the September 1989 EPA guidelines for "Developing Control Authority Enforcement Response Plans." This section is sometimes referred to as the enforcement response guide (ERG).

(a) Administrative.

(1) Telephone call, email, or reminder letter to notify industrial user (IU) of violation. May include request for explanation of violation from IU.

(i) Done as soon as possible upon discovery of violation.

(2) Notice of violation (written):

(i) Sent by certifiable means (U.S. Mail, FedEx, UPS, etc.) within a timely manner after the violation.

(3) Fines assessed by City for violation(s):

(i) Intended to punish the IU for noncompliance.

(ii) No court intervention unless IU contests fine.

(4) Administrative order types:

(i) Show-cause order: allows the IU to appear before the Public Works Director or representative and explain the noncompliance and why more severe enforcement actions should not be taken.

(ii) Enforcement documents: directs IU to implement corrective or remedial measures (compliance orders).

(iii) Cease-and-desist order(s).

(iv) Consent orders: negotiated settlement agreed upon by the City and the IU.

(v) Revocation of permit:

A. Failure of an industrial user to factually report the sewage constituents and characteristics of their discharge;

B. Failure of an IU to report significant changes in operations, site plans, floor plans, mechanical and plumbing plans, or sewage constituents and characteristics; or

C. Refusal of reasonable access to an IU's premises for the purpose of inspection or monitoring.

(vi) Industrial wastewater service termination.

(5) Administrative fines:

(i) Assessed for repeated or serious violations.

(ii) Attached to an administrative order.

(b) Judicial enforcement.

(1) Civil Litigation.

(i) Lawsuits filed against IU to:

A. Recover costs associated with noncompliance;

B. Impose civil penalties;

C. Seek injunctive relief;

D. Acquire a court order to return IU to compliance.

(ii) Process of litigation:

A. City decides to sue;

B. City Attorney files complaint with the Court;

C. IU responds to complaint by filing an answer;

D. Depositions and interrogations;

E. Trial date set;

F. Settlement negotiations, if any;

G. Trial occurs;

H. Verdict is issued;

I. Appeals are made.

(c) Criminal prosecution.

(1) Purpose:

(i) To punish noncompliance rather than recover costs;

(ii) To deter future noncompliance.

(2) City must prove intent and/or negligence;

(3) Criminal prosecution process:

(i) Discovery of the crime;

(ii) Gathering evidence;

(iii) Initiating criminal prosecution;

(iv) Defendant's pretrial options:

A. Plead guilty;

B. Jury trial.

(4) The criminal trial;

(5) Sentencing and appeals.

(Ord. No. 007-16, § 2, 6-21-2016; Ord. No. 001-22, § 3, 1-18-2022)

The table below describes the City's enforcement response options per violation type. The official(s) responsible for enforcement shall be the Public Works Director and/or duly authorized representative. The following abbreviations shall be used throughout the ERP table:

AO = Administrative Order

CO = Consent Order

NOV = Notice of Violation

SCO = Show Cause Order

WL = Warning Letter

(Ord. No. 007-16, § 2, 6-21-2016; Ord. No. 001-22, § 3, 1-18-2022)