Chapter 6.22
ADMINISTRATIVE ENFORCEMENT REMEDIES
Sections:
6.22.050 Notice of violation/order for corrective action.
6.22.100 Cease and desist orders.
6.22.130 Administrative complaint.
6.22.140 Administrative civil penalties.
6.22.160 Recovery of costs for damage.
6.22.170 Emergency suspensions.
6.22.180 Termination of service.
6.22.010 Informal notice.
An informal notice is for minor infractions only and may be verbal or written. The intent is to point out a problem and encourage compliance without taking formal compliance actions. The notice may come via telephone, email, informal meetings, during an inspection, or with a reminder letter. All informal notices are documented and retained in case the IU fails to respond. (Ord. 387 § 11.1, 2017)
6.22.020 Deficiency notice.
This mechanism is used for minor violations. The notice will indicate what the deficiency is (usually for monitoring or reporting) and what is required to correct the deficiency. (Ord. 387 § 11.2, 2017)
6.22.030 Late notice.
A late notice will be issued to any IU that fails to provide a self-monitoring report, baseline monitoring report, permit application, or any other required report by the due date. (Ord. 387 § 11.3, 2017)
6.22.040 Warning letter.
These warning letters are issued for minor violations and as the first step in escalating enforcement – for example, an industry that submits reports late twice in a 12-month period could be issued a written warning instead of a second late notice. (Ord. 387 § 11.4, 2017)
6.22.050 Notice of violation/order for corrective action.
A notice of violation/order for corrective action (“NOV/OCA”) is issued when the general manager finds that an IU has violated, or continues to violate, any provision of their permit, this division, or order issued hereunder, or any other pretreatment standard or requirement. The NOV cites the specific violation while the OCA indicates the required corrective actions. OCAs may be issued, among other things, to require immediate corrective action, additional self-monitoring requirements, investigation of the cause of a violation, and corrective actions taken by an IU to gain compliance. The IU is also informed of its obligation to pay a noncompliance fee, if such a fee is levied by the general manager. NOVs for repeated violations contain increased requirements in the OCAs. Within 10 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 user to Western. Submission of such a plan in no way relieves the user of liability for any violations occurring before or after receipt of the notice of violation. Nothing in this section shall limit the authority of the general manager to take any action, including emergency actions or any other enforcement action, with or without first issuing a notice of violation. (Ord. 387 § 11.5, 2017)
6.22.060 Compliance meeting.
A compliance meeting shall be required of all IUs who have failed to achieve compliance after the issuance of a notice of violation, or violation(s) resulting in significant noncompliance. The purpose of the meeting is to determine the appropriate next step in the enforcement process. Options to consider include drafting a consent order or compliance order, or to determine if an extension in the compliance schedule is warranted. The meeting also offers the IU the opportunity to propose solutions, request time extensions, or file an appeal. (Ord. 387 § 11.6, 2017)
6.22.070 Consent orders.
The general manager 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 administrative orders issued pursuant to WMWDC 6.22.040 and 6.22.050 and shall be judicially enforceable. (Ord. 387 § 11.7, 2017)
6.22.080 Show cause hearing.
The general manager may order a user which has violated, or continues to violate, any provision of this division, an individual 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 proposed enforcement action should not be taken. Notice shall be served on the user specifying the time and place for the meeting, the proposed enforcement action, the reasons for such action, and a requirement that the user show cause why the proposed enforcement action should not be taken. The notice of the meeting shall be served personally or by certified mail (return receipt requested) at least 14 days prior to the hearing. Such notice may be served on any authorized representative of the user as defined in WMWDC 6.02.040 and required by WMWDC 6.10.060(A). A show cause hearing shall not be a bar against, or prerequisite for, taking any other action against the user. (Ord. 387 § 11.8, 2017)
6.22.090 Compliance orders.
When the general manager finds that a user has violated, or continues to violate, any provision of this division, an individual wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or requirement, the general manager may issue an order to the user responsible for the discharge directing that the user come into compliance within a specified time. If the user does not come into compliance within the time provided, sewer service may be discontinued unless adequate treatment facilities, devices, or other related appurtenances are installed and properly operated. Compliance orders also may contain other requirements to address the noncompliance, including additional self monitoring and management practices designed to minimize the amount of pollutants discharged to the sewer. A compliance order may not extend the deadline for compliance established for a pretreatment standard or requirement, nor does a compliance order relieve the user of liability for any violation, including any continuing violation. Issuance of a compliance order shall not be a bar against, or a prerequisite for, taking any other action against the user. A user may appeal the compliance order to the general manager within 10 days from the date of issuance of the compliance order. The general manager’s decision on such an appeal shall be final. (Ord. 387 § 11.9, 2017)
6.22.100 Cease and desist orders.
When the general manager finds that a user has violated, or continues to violate, any provision of this division, an individual 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 general manager 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. 387 § 11.10, 2017)
6.22.110 Permit suspension.
A permit may be suspended for any violation of any provision of this division. The violations can include, but are not limited to: exceedance of a local or federal standard, recurring slug loads, failure to perform or report self-monitoring sampling, falsification of required information, refusing to allow entry to facility for the purpose of inspection, failure to re-apply for a wastewater discharge permit, failure to pay required fees or charges, failure to comply with an order, or for other reasons deemed appropriate to protect the interests of Western. Upon determination that there are reasonable grounds for permit suspension, the general manager may issue a permit suspension notice (written and sent by certified mail) with a minimum notification of 15 days. The general manager shall make a hearing available to the IU within 15 days prior to the intended permit suspension. All costs for wastewater discharge permit suspension and reissuance shall be paid by the IU. (Ord. 387 § 11.11, 2017)
6.22.120 Permit revocation.
A permit may be revoked for any violation of any provision of this division. The violations can include but are not limited to: falsification of required information, refusing to allow entry to facility for the purpose of inspection, failure to comply with a cease and desist order, failure to pay required fees or charges, or for other reasons deemed appropriate to protect the interests of Western. Upon determination that there are reasonable grounds for permit revocation, the general manager may issue a permit revocation notice (written and sent by certified mail) with a minimum notification of 15 days. The general manager shall make a hearing available to the IU within 15 days prior to the intended permit revocation. All costs for wastewater discharge permit revocation shall be paid by the IU. (Ord. 387 § 11.12, 2017)
6.22.130 Administrative complaint.
The general manager of Western may issue an administrative complaint to any IU who violates this division, a wastewater discharge permit, or an administrative order. Administrative complaints are used to assess civil liability and to propose a civil penalty. The administrative complaint is served by personal delivery or certified mail on the IU. It informs the IU served that a hearing is to be conducted within 60 days after the IU has been served. (Ord. 387 § 11.13, 2017)
6.22.140 Administrative civil penalties.
A. Pursuant to authority of California Government Code, Sections 54740.5 and 54740.6, the general manager may issue an administrative complaint to any user who violates:
1. Any provision of this division;
2. Any permit condition, prohibition or effluent limit; or
3. Any permit suspension or revocation order.
B. The administrative complaint shall be served by personal delivery or certified mail to the user and shall inform the user that a hearing will be conducted on a date which shall be within 60 days following service. The administrative complaint will allege the act or failure to act that constitutes the violation of Western’s requirements, the provisions of law authorizing civil liabilities to be imposed, and the proposed civil penalty. The matter shall be heard by the general manager. The user to whom an administrative complaint has been issued may waive the right to a hearing, in which case a hearing will not be conducted.
C. At the hearing, the user shall have an opportunity to respond to the allegations set forth in the administrative complaint by presenting written and/or oral evidence.
D. After the conclusion of the hearing, the general manager shall make its determination. Should it find that grounds exist for assessment of a civil penalty against the user, it shall issue a decision and order in writing within 30 calendar days after the conclusion of the hearing.
E. If it is found that the user has violated reporting or discharge requirements, the general manager may assess a civil penalty against the user. In determining the amount of the civil penalty, the general manager 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 occured and corrective action, if any, attempted or taken by the user involved.
F. Civil penalties may be assessed as follows:
1. In an amount no less than $1,000 per violation, per day, which shall not exceed $2,000 for each day for failing or refusing to furnish technical or monitoring reports;
2. In an amount no less than $1,000 per violation, per day, which shall not exceed $3,000 for each day for failing or refusing to comply timely with any compliance schedules established by Western;
3. In an amount no less than $1,000 per violation, per day, which shall not exceed $5,000 per violation for each day of discharge in violation of any waste discharge limit, permit condition, or requirement issued, reissued or adopted by Western;
4. In any amount which does not exceed $10.00 per gallon for discharges in violation of any permit suspension, permit revocation, cease and desist order or other orders, or prohibition issued, reissued or adopted by Western.
G. An order assessing administrative civil penalties issued by the general manager shall be final in all respects on the thirty-first day after it is served on the user unless an appeal and request for hearing is filed with the secretary to the board of directors of Western no later than the thirtieth day following such mailing. An order assessing administrative civil penalties issued by the board of directors of Western, after any such appeal, shall be final upon issuance.
H. Copies of the administrative order shall be served on the user served with the administrative complaint, either by personal service or by registered mail to the user at his business or residence address, and upon other persons who appeared at the hearing and requested a copy of the order.
I. Any user aggrieved by a final order issued by the board of directors, after an appeal from the order of the general manager, may obtain review of the final order of the board of directors in the superior court, pursuant to Government Code, Section 54740.6, by filing with the court a petition for writ of mandate within 30 days following the service of a copy of the decision or order issued by the board of directors.
J. Payment on any order setting administrative civil penalties shall be made within 30 days after the date the order becomes final. The amount of any administrative civil penalties imposed which have remained delinquent for a period of 60 days shall constitute a lien against the real property of the user from which the discharge resulting in the imposition of the civil penalty originated. The lien shall have no effect until recorded with the county recorder. Western may record the lien for any unpaid administrative civil penalties on the ninety-first day following the date the order becomes final.
K. No administrative civil penalties shall be recoverable for any violation for which Western has recovered civil penalties through a judicial proceeding filed pursuant to Government Code, Section 54740.
L. Issuance of an administrative fine shall not be a bar against, or a prerequisite for, taking any other action against the user. (Ord. 387 § 11.14, 2017)
6.22.150 Noncompliance costs.
WRCRWA shall recover its attorneys’ fees and costs incurred in processing notices of violation and in performing sampling, monitoring, or laboratory analysis related to any violations of this division or permit by any user.
Noncompliance costs shall be in addition to and not in lieu of any civil or criminal liability specified in this division. (Ord. 387 § 11.15, 2017)
6.22.160 Recovery of costs for damage.
In the event that a user causes any damage to WRCRWA’s POTW, or Western’s collection system, the user shall be liable for all costs, including administrative and legal costs, incurred by WRCRWA or Western. (Ord. 387 § 11.16, 2017)
6.22.170 Emergency suspensions.
The general manager 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 general manager 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.
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 general manager may take such steps as deemed necessary, including immediate severance of the sewer connection, to prevent or minimize damage to the POTW, its receiving stream, or endangerment to any individuals. The general manager may allow the user to recommence its discharge when the user has demonstrated to the satisfaction of the general manager that the period of endangerment has passed, unless the termination proceedings in WMWDC 6.22.180 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 general manager, prior to the date of any show cause or termination hearing under WMWDC 6.22.080 or 6.22.180.
Nothing in this section shall be interpreted as requiring a hearing prior to any emergency suspension under this section. (Ord. 387 § 11.17, 2017)
6.22.180 Termination of service.
In addition to the provisions in WMWDC 6.12.060, any user who violates the following conditions is subject to discharge termination:
A. Violation of individual wastewater discharge 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 Chapter 6.04 WMWDC. Such user will be notified of the proposed termination of its discharge and be offered an opportunity to show cause under WMWDC 6.22.080 why the proposed action should not be taken. Exercise of this option by the general manager shall not be a bar to, or a prerequisite for, taking any other action against the user. (Ord. 387 § 11.18, 2017)