HomeMy WebLinkAboutResolution 2016-083 N.C.S. 06/06/2016Resolution No. 2016 -083 N.C.S.
of the City of Petaluma, California
RESOLUTION REPEALING AND REPLACING THE ENFORCEMENT
RESPONSE PLAN ADOPTED AUGUST 6, 2007 PURSUANT TO RESOLUTION
NO. 207-140 N.C.S. FOR THE CITY OF PETALUMA INDUSTRIAL
PRETREATMENT PROGRAM IN ACCORDANCE WITH U.S.E.P.A
REQUIREMENTS AND ADDING THE ENFORCEMENT RESPONSE PLAN
FOR THE STORMWATER MS4 PROGRAM IN ACCORDANCE WITH
STATE WATER RESOURCES CONTROL BOARD REQUIREMENTS
WHEREAS, regulations promulgated by the U.S. Environmental Protection Agency
( "USEPA ") at 40 CFR 403.8(f)(5) require a Publicly Owned Treatment Works ( "POTW ") to
develop and implement an Enforcement Response Plan containing detailed procedures indicating
how the POTW will investigate and respond to instances of industrial user non - compliance; and
WHEREAS, on August 6, 2007 pursuant to Resolution No. 207 -140 N.C. S, the City
Council adopted an enforcement response plan for its industrial pretreatment program to
implement regulatory requirements of the U.S. Environmental Protection Agency; and
WHEREAS, the Pretreatment Program Enforcement Response Plan attached to and
made a part of this resolution as Exhibit A has been developed to ensure that all users are in
compliance with the City's sewer use requirements, including applicable federal and state law
and regulations, and to provide for fair and effective enforcement of such requirements in
accordance with 40 CFR 403.8(f) (5); and
WHEREAS, within City's Phase II Small Municipal Separate Storm Sewer System
( "MS4 ") General Permit, the State Board has required Phase II municipalities, including the City
of Petaluma, to develop an ERP for discharges to their MS4s within the third year of the
effective date of the permit; and
WHEREAS, the Stormwater Program Enforcement Response Plan attached to and made
part of this resolution as Exhibit B has been developed to ensure that all requirements of the
Enforcement Response Plan have been met and to provide for fair and effective enforcement of
such requirements in accordance with task E.6.c City's Phase II Small MS4 General Permit; and
WHEREAS, adoption and implementation of a Pretreatment Program Enforcement
Response Plan as required by U.S.E.P.A. regulations at 40 CFR 403.8(f) (5) and adoption and
implementation of a Stormwater Program Enforcement Response Plan as required by State
Water Resources Control Board requirements are exempt from the California Environmental
Quality Act ( "CEQA ") in accordance with Section 15308 of the CEQA Guidelines as action by a
regulatory agency as authorized by state law or local ordinance to assure the maintenance,
restoration, enhancement, or protection of the environment.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Petaluma
as follows:
Resolution No. 2016 -083 N.C.S. Page 1
1. Resolution No. 207 -140 N.C.S. is hereby repealed in its entirety.
2. The Pretreatment Enforcement Response Plan attached to and made a part of this
resolution as Exhibit A is hereby approved and adopted.
3. The Stormwater Enforcement Response Plan attached to and made a part of this
resolution as Exhibit B is hereby approved and adopted.
4. The Public Works and Utilities Department Director is authorized and directed to
implement the City's Enforcement Response Plans in accordance with the requirements
of 40 CFR 403.8(f)(5), applicable State Regulations and other applicable laws.
5. The Director is directed to monitor sewer use laws and regulations applicable to the
City's sewer use and stormwater requirements and return to the City Council periodically
with recommendations for updates to the City's sewer use requirements to ensure they
comply with such laws and regulations.
6. This resolution authorizing and directing the Director to commence implementation of
the Enforcement Response Plans shall become effective immediately.
7. All portions of this resolution are severable. Should any individual component of this
resolution (including the plans it incorporates) be adjudged invalid and unenforceable by
a body of competent jurisdiction then the remaining resolution portions shall be and
continue in full force and effect, except as to those resolution portions that have been
adjudged invalid. The City Council of the City of Petaluma hereby declares that it would
have adopted this resolution and each section, subsection, clause, sentence, phrase, and
other portion hereof, irrespective of the fact that one or more sections, subsections,
clause, sentences, phrase, or other portion may be held invalid or unconstitutional.
Under the power and authority conferred upon this Council by the Charter of said City.
REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the pro d as to
Council of the City of Petaluma at a Regular meeting on the 6th day of June, 2016, i f rrp:
by the following vote:
Ci Attorney
AYES: Albertson, Barrett, Mayor Glass, Healy, Kearney, Vice Mayor King, Miller �%
NOES: None
ABSENT: None
ABSTAIN:
ATTEST:
None
City Clerk
Em
Resolution No. 2016 -083 N.C.S. Page 2
Enforcement Response Plan Exhibit A
City of Petaluma Pretreatment Program
1. Introduction
The City of Petaluma's (City) Enforcement Response Plan (ERP) outlines the procedures and
enforcement mechanisms utilized by staff of the City's wastewater pretreatment program to
ensure compliance with local, State, and Federal wastewater discharge requirements. The City's
ERP may be revised as necessary to improve the effectiveness of enforcement and compliance
actions, and to comply with future pretreatment requirements.
2. Objectives
• Describe how City staff will investigate instances of noncompliance.
• To identify appropriate City personnel who may initiate various enforcement actions
• To provide guidance in determining enforcement responses based on the nature and
severity of the violation.
• To outline an escalating enforcement response platform.
• To promote consistency in the use of enforcement action by the City.
• To reduce confusion or uncertainty pertaining to enforcement actions.
• To provide fair and equitable means of enforcing the local, state and federal regulations.
• To ensure compliance with the Clean Water Act, Title 40 of the Code of Federal
Regulations Part 403, State Regulations, and the Petaluma Municipal Code.
3. Definitions and Abbreviations
• AO - Administrative Order: Enforcement documents which direct industrial users to
undertake or to cease specific activities, i.e. Compliance Order, Cease and Desist, Show
Cause.
• City - The City of Petaluma.
• Civil Action — Civil litigation against the user seeking equitable relief, monetary penalties,
and actual damages.
• Criminal Action — Pursuing punitive measures against an individual and /or organization
through a court of law.
• Compliance Schedule — Reasonable time schedule for the completion of tasks to be
completed that lead towards compliance.
• Consistent Compliance — Period of time, to be determined by the Director of Public
Works & Utilities, in which User maintains 100% compliance.
• ERP — Enforcement Response Plan: A plan which describes how the City will investigate
and take appropriate enforcement actions for instances of noncompliance.
• Formal Notices — A letter or an Administrative Order.
Resolution No. 2016 -083 N.C.S. Page 3
• Informal Notices — A verbal or written notification by City staff that the user may violate
the Sewer Use Ordinance, and that some required action is necessary.
• NOV — Notice of Violation: A document informing the user that it has violated the City
Sewer Use Ordinance and /or discharge permit. Requires appropriate corrective actions.
• PMC— Petaluma Municipal Code.
• POTW — Publicly Owned Treatment Works
• Show Cause — Formal meeting requiring the user to appear and demonstrate why the
City should not take proposed enforcement action against it. The meeting may also
serve as a forum to discuss corrective actions and compliance schedules.
• SNC— Significant Non - Compliance: Compliance status as defined in 40 CFR 403.8
(f)(2)(viii).
• Suspension /Termination —A temporary or permanent physical interruption of sewer
services.
• User — A source of indirect discharge.
4. Legal Authority
Chapter 15.68 of the PMC provides for enforcement and penalties against users who fail to
comply with the requirements of the Sewer Use Ordinance (Chapter 15 of PMC). Any user who
violates this code is guilty of a misdemeanor punishable by a fine of not more than $5,000 per
violation for each day in violation or a term of imprisonment amounting to no more than six
months, or both (PMC Chapter 15.68.020). Each violation is considered a separate and new
offense.
The City may also bring civil actions as may be available to enforce the provisions of its
ordinance and to recover such cost, fees, penalties, and /or damages. Civil enforcement may be
executed in the form or injunction (temporary restraining order, preliminary injunction,
permanent injunction) and /or holding the user liable for penalties not to exceed $25,000 for
each day in which the violations occurs as long as the violation continues. The City may petition
the Superior Court to impose, asses, and collect such sums pursuant to the PMC Chapter
15.68.020 and California Government Code § 54740, et seq.
City personnel have authority to enter and inspect, where wastewater is generated or
discharged at all reasonable times, all parts of the premises for the purposes of inspection,
sampling, analysis, records examination, or to perform any of their routine duties (PMC Chapter
15.60.050). Inspections of significant industrial users will occur at least once a year as may be
necessary to enforce the provisions of the ordinance.
Resolution No. 2016 -083 N.C.S. Page 4
5. Enforcement Staff and Responsibilities
Environmental Services Technician — Performs inspections and collects wastewater samples at
industrial, commercial and institutional facilities. Interpret and explain regulations to Users.
Issue NOVs and take other routine steps of education and enforcement. Identifies instances of
noncompliance at industrial and commercial sites. Drafts NOVs and written notices as
appropriate.
Environmental Compliance Inspector — Performs inspections and collects wastewater samples
at industrial, commercial and institutional facilities. Interprets sample results for compliance
with permit conditions. Prepares inspection reports. Investigates trace sources of illegal
industrial discharges. Identifies instances of noncompliance. Drafts and NOVs, Written Notices,
Compliance Schedules and Administrative Orders. Calculates fines related to discharge
violations. Tracks industries for Significant Noncompliance, and provides education and
outreach to Users.
Environmental Services Supervisor — Plans, organizes, and supervises work of Compliance
Inspector and Technician. Makes recommendations on enforcement actions. Issues fines related
to discharge violations. Serves as liaison with industry and regulatory agencies.
Environmental Services Manager— Develops divisional goals, policies and procedures. Oversees
pretreatment program implementation. Determines level of enforcement action. Serves as
liaison with industry and regulatory agencies.
Director of Public Works & Utilities — Sets enforcement response policy. Issues wastewater
discharge permits, Compliance Schedules and Administrative Orders. Approves termination of
water and /or wastewater services. Consults with City Manager and City Attorney on potential
legal action and decisions to issue orders. The Director of Public Works and Utilities holds
signatory authority for the Pretreatment and Pollution Prevention programs.
Resolution No, 2016 -083 N.C.S. Page 5
6. Investigative Procedures
The City will investigate instances of non - compliance through facility inspection, collection and
analysis of water /wastewater samples, review of Self- Monitoring Reports, review of analytical
data submitted by industries and by tracking complaints of illicit discharge.
7. Enforcement Mechanisms
The following enforcement mechanisms have been identified for use by the City:
• Informal Notices: Verbal Warning, Warning Letters, Meetings
• Notice of Violation
• Noncompliance Fee
• Sampling Evaluation Program
• Assessment of Charges
• Compliance Schedule
• Administrative Order
• Show Cause Hearing
• Order to Cease and Desist
• Termination of Services
• Criminal Action
• Civil Action
8. Enforcement Response Procedure
The Enforcement Response Plan is designed to follow path of escalating enforcement. After a
violation has come to the attention of the City, staff members must determine the appropriate
level of enforcement action.
Informal Notices: Informal Notices may be used to address conditions that have been identified
which, if left unabated, may result in a violation. Late submittals to non - permit issued deadlines.
Conditions where the level of evidence does not support citation using a Notice of Violation.
Notice of Violation: The Notice of Violation (NOV) is the primary enforcement tool of the City's
pretreatment program. NOV's are issued in response to all discharge violations, permit
violations, any violation subject to Significant Noncompliance criteria, ordinance violations, and
conditions that were not corrected after informal notice.
The NOV informs the violator of the specific ordinance and /or permit conditions which were
violated. Facility contacts are required to sign the NOV and a copy is both issued to the User
and maintained by the City. A written response is required from the User within 30 days of the
issuance of the NOV. This response includes the following information:
• How the User intends to correct the situation.
• How the User will prevent future occurrences.
Resolution No. 2016 -083 N.C.S. Page 6
o The anticipated completion date of the corrective action.
Following the NOV response and completed corrective actions, the City staff who issued the
NOV will, if necessary, return to inspect the Users facility to verify that the identified corrective
actions have been completed. All NOVs are subject to a Noncompliance Fee.
Noncompliance Fee: A noncompliance fee may be issued in response to a discharge or permit
violation. The fee is calculated on a monthly basis, and for Industrial Users incorporated into the
Users monthly wastewater bill. The baseline fee is $100 per violation, and may increase using a
repeat multiplier as outlined in the Fine Policy for categorical industrial users, significant
industrial users, industrial users, and zero dischargers.
Sampling Evaluation Program: Following a discharge violation of permitted limits, the City may
conduct follow up sampling for the parameter violated. Sampling is conducted at the Users
expense and is performed on a monthly basis until consistent compliance is achieved.
Assessment of Charges: The City may impose a charge on a User to recover cost costs
associated with responding to, investigating, or correcting violations made by the User. This may
include, amongst other things, cleaning and repair costs, costs to resume normal POTW
operation, or fees to cover administrative costs. A comprehensive list of conditions that may
merit the assessment of charges can be found in Chapter 15.72.020 of the PMC.
Compliance Schedule /Administrative Order: Administrative Order's (AO) are enforcement
documents which direct Users to undertake or cease specific activities. An AO may be issued
after failure to respond to prior enforcement actions, or may be issued in response to severe
violations. The AO often incorporates a Compliance Schedule which outlines specific activities
to be undertaken by the User in an effort to achieve compliance. AO's may also contain Show
Cause Orders, Cease and Desist Orders, or specific consequences for failing to meet the
conditions of the AO.
Show Cause Hearing: The Show Cause Hearing is often incorporated into an A0. This action
orders the User to appear before City staff and explain the reasons for its noncompliance, and
show cause why more severe enforcement actions should not be taken against the User. The
hearing may also serve as a forum to discuss corrective actions and compliance schedules.
Cease and Desist Order: This order, often incorporated into an AO, directs a User to
immediately halt illegal or unauthorized discharges.
Termination of Services: If previous enforcement actions prove to be unsuccessful, the City
may, at the discretion of the Director of Public Works & Utilities, suspend water and /or
wastewater services to a User in accordance with Chapter 15.68.090 of the PMC.
Criminal Action: Per PMC 15.68.020 the City maintains the right to seek criminal penalties
against those who intentionally or negligently violate any provision of the PMC or of any
discharge permit issued pursuant to the PMC. Those convicted shall face a maximum fine of one
Resolution No. 2016 -083 N.C.S. Page 7
thousand dollars or imprisonment for not more than six months in the county jail or both, for
each violation. Each person shall be guilty of a separate offense for each and every day during
any portion of which any violation.
Civil Action: PMC Chapter 15.68.020 ensures that the City may recover actual costs and
damages incurred and reasonable attorney's fees, court costs, and other expenses associated
with the enforcement activities, including sampling and monitoring expenses.
9. Public Notice of Significant Noncompliance
As required by Title 40 of the Code of Federal Regulations Part 403.8(f)(2)(Vii) the City will
publish, at least annually, in the largest daily newspaper located in the municipality services by
the City, a list of all Significant Industrial Users that are found to be in Significant Noncompliance
during the previous 12 months. The City will publish this list annually in the Press Democrat.
Resolution No. 2016 -083 N.C.S. Page 8
Enforcement Response Plan Exhibit B
City of Petaluma Stormwater Program
1. Introduction
The City of Petaluma's (City) Enforcement Response Plan (ERP) outlines the procedures
and enforcement mechanisms utilized by staff of the City's stormwater program to ensure
compliance with the Statewide General Phase II MS4 Permit (MS4 Permit). The City's
ERP may be revised as necessary to improve the effectiveness of enforcement and
compliance actions, and to comply with future program requirements.
2. Objectives
• Describe how City staff will respond to violations and investigate instances of
noncompliance.
• To identify appropriate City personnel who may initiate various enforcement actions.
• To provide guidance in determining enforcement responses based on the nature and
severity of the violation.
• To outline an escalating enforcement response platform to address repeat and
continuing violations.
• To promote consistency in the use of enforcement action by the City.
• To reduce confusion or uncertainty pertaining to enforcement actions.
• To provide fair and equitable means of enforcing the local, state and federal
regulations.
• To ensure compliance with the Federal Clean Water Act, Federal Water Pollution
Control Act, State Porter- Cologne Water Quality Control Act, MS4 Permit, Petaluma
Municipal Code (PMC) and other applicable water quality regulations.
3. Definitions and Abbreviations
• Best Management Practices (BMPs) - Activities, prohibition of practices, general good
housekeeping practices, pollution prevention and educational practices, maintenance
procedures, and other management practices to prevent or reduce to the maximum
extent practical the discharge of pollutants directly or indirectly to waters of the
Resolution No, 2016 -083 N.C.S. Page 9
United States. BMPs shall also be defined to include structural controls, treatment
controls, training requirements, operating procedures, and practices to control plant
site runoff, spillage or leaks, sludge or waste disposal, and drainage from raw
materials storage.
• City - The City of Petaluma.
• Discharge - The release or placement of any material into the City's MS4 or water
courses, including, but not limited to, stormwater, wastewater, solid materials, liquids,
hazardous waste, raw materials, debris, litter or any other substance.
• Enforcement Response Plan (ERP) - A plan which describes how the City will
investigate and take appropriate enforcement actions for instances of noncompliance.
• Non - filers — Facilities that are subject to the State's Construction General Permit or
Industrial General Permit and are unable to demonstrate that they obtained permit
coverage.
• Notice to Comply - Written notice of a violation of Chapter 15.80 of the PMC
requiring corrective actions and potential fines.
• Municipal Separate Storm Sewer System (MS4) - a conveyance or system of
conveyances (including roads with drainage systems, municipal streets, catch basins,
curbs, gutters, ditches, man -made channels, or storm drains) designed or used for
collecting or conveying storm- water, which is not a combined sewer and which is not
part of a publicly owned treatment works.
4. Legal Authority
Chapter 1.16.030 of the Petaluma Municipal Code (PMC) provides enforcement and
penalties against anyone who fails to comply with the requirements of the Stormwater
Management and Pollution Control Ordinance. A violation or failure to comply with any
of the requirements of this chapter shall constitute a misdemeanor punishable by a fine of
up to $1,000 per violation.
In instances of persistent noncompliance, repeat or escalating violations, or incidents of
major environmental harm, the City may impose more substantial civil or criminal
sanctions and escalate corrective response, up to and including by issuing citations or
administrative fines against responsible parties either immediately on site or within a few
days of the violation.
Resolution No. 2016 -083 N.C.S. Page 10
City personnel have authority to enter and inspect to enforce any provision of Chapter
15.80, or whenever there is cause to believe that there exists any condition in violation of
this Chapter related to stormwater compliance. During an inspection, City staff may take
any samples and perform any testing deemed necessary.
5. Enforcement Staff and Responsibilities
Environmental Services Technician — Performs a variety of stormwater activities
including field investigations, site inspections, and sampling to determine compliance
with Local and State regulations. Maintains documentation regarding site evaluations
and complaints. Drafts correspondence, warning letters, and Notices to Comply.
Environmental Services Analyst — Coordinates and implements the City's stormwater
program. Develop and provide public awareness and education related to resource
programs. Prepare regulatory reports; write proposed regulations and ordinances to
control the use of water or to maintain compliance with water quality regulations.
Environmental Services Supervisor — Plans, organizes, and supervises work of
Environmental Services Analyst and Technician. Makes recommendations on
enforcement actions, issues fines related to discharge and storm water violations. Serves
as liaison between property owners or responsible parties in violation of the PMC and
regulatory agencies.
Environmental Services Manager Develops divisional goals, policies and procedures.
Oversees stormwater program implementation. Determines level of enforcement action.
Serves as liaison between property owners or responsible parties in violation of the PMC
and regulatory agencies.
Director of Public Works & Utilities —Sets enforcement response policies. Consults
with City Manager and City Attorney on potential legal action and decisions to issue
orders. The Director of Public Works and Utilities holds signatory authority for the
stormwater program.
6. Enforcement Mechanisms
The following enforcement mechanisms have been identified for use by the City:
® Notice to Comply
• Abatement by City
Resolution No. 2016 -083 N.C.S. Page 11
® Charging Cost of Abatement /Liens
• Urgency Abatement
• Violations
• Compensatory Action
i Violations Deemed a Public Nuisance
• Order to Cease and Desist
7. Enforcement Response Procedure
The Enforcement Response Plan is designed to follow path of escalating enforcement.
After a violation has come to the attention of the City, staff members must determine the
appropriate level of enforcement action.
Notice to Comply: Whenever the City staff determines that a person has violated a
prohibition or failed to meet a requirement of Chapter 15.80 of the PMC, staff may order
compliance by written notice of violation to the responsible person (PMC Section
15.80.23(A). The notice may require the following without limitation:
The performance of monitoring, analyses, and reporting;
The elimination of illicit connections or discharges;
That violating discharges, practices, or operations shall cease and desist;
The abatement or remediation of stormwater pollution or contamination of hazards
and the restoration of any affected property;
Payment of a fine to cover administrative and remediation costs; and
The implementation or maintenance of source control or treatment BMPs.
If abatement of a violation and /or restoration of affected property are required, the notice
shall set forth a deadline within such remediation or restoration must be completed. The
City is authorized to issue a cease and desist order and /or to clean up and abate a
discharge including:
Requiring the discharger to abate and clean up their discharge, spill, or pollutant
release within seventy -two hours of notification; or as soon as possible in the case of
high risk spills;
Resolution No. 2016 -083 N.C.S. Page 12
Ordering abatement of discharges, spills, or pollutant release within thirty days of
notification, for uncontrolled sources of pollutants that could pose an environmental
threat;
Perform clean -up and abatement work and billing the responsible party;
Ordering the cessation of pollution- causing activities until such time as the City
determines that the pollution- causing activities have been adequately addressed.
Schedule of Penalties for Violations of Section 15.80.060 of the PMC:
First Offense: $500
Second Offense: $1,000
Third and Additional Offense (Within 36 Months): $1,000
Abatement by City: If the violation has not been corrected pursuant to the requirements
set forth in the Notice to Comply, then the City shall enter upon the subject private
property and is authorized to take any and all measures necessary to abate the violation
and /or restore the property (PMC Section 15.80.230(C).
Charging Cost of Abatement/Liens: Within thirty calendar days after abatement of the
nuisance by the City, the property owner shall be notified of the cost of abatement,
including administrative costs (PMC Section 15.80.230(D).
Urgency Abatement: City staff is authorized to require immediate abatement of any
violation of Chapter 15.80 of the PMC that constitutes an immediate threat to the health,
safety or well -being of the public. If any such violation is not abated immediately, the
City is authorized to enter onto private property and to take any and all measures required
to remediate the violation. Any expense related to such remediation undertaken by the
City shall be fully reimbursed by the property owner and /or responsible party (PMC
Section 15.80.230(E).
Violations: It shall be unlawful for any person to violate any provision or fail to comply
with any of the requirements of Chapter 15.80. A violation or failure to comply with any
of the requirements of Chapter 15.80 shall constitute a misdemeanor.
Compensatory Action: In lieu of enforcement proceedings, penalties, and remedies
authorized by PMC Chapter 15.80, city staff may impose upon a violator alternative
compensatory action, such as storm drain stenciling, attendance at compliance
workshops, creels cleanup, or other such similar actions (PMC Section 15.80.230(G).
Violations Deemed a Public Nuisance: Any condition caused or permitted to exist in
violation of any of the provisions of Chapter 15.80 is a threat to public health, safety, and
Resolution No. 2016 -083 N.C.S. Page 13
welfare, and is declared and deemed a nuisance, and may be summarily abated or
restored by the city at the violator's expense, and /or civil action to abate, enjoin, or
otherwise compel the cessation of such nuisance may be taken by the city (PMC Section
15.80.230(H).
Order to Cease and Desist: This order, often incorporated into an AO, directs a person
to immediately halt illegal or unauthorized discharges (PMC Section 15.80.230(A)(2).
8. Additional Measures
NPDES Permit Referrals —For those construction projects or industrial facilities subject
to the State's Construction General Permit or Industrial General Permit, the City shall:
• Refer non -filers to the appropriate Regional Water Board within 30 days of making
that determination.
• Refer ongoing violations to the appropriate Regional Water Board provided that the
City has made good faith effort of progressive enforcement to achieve compliance
with its own ordinances. Referrals of ongoing violations will be made after two
follow -up inspections and two warning letters or notices of violation.
Resolution No. 2016 -083 N.C.S. Page 14