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A. Authority. Where used in this section, “City,” unless otherwise stated, means the City of Santa Rosa Subregional Water Reclamation System.

B. Responding to Significant Noncompliance. Any violation of pretreatment standards or requirements (limits, sampling, analysis, reporting, and meeting compliance schedules and regulatory deadlines) is an instance of noncompliance for which the significant industrial user (SIU) is liable for enforcement, including penalties per SMC 1.04.010. However, the City is required to identify violations or patterns of violations by SIUs that are deemed to be instances of significant noncompliance (SNC). Additionally, the determination of significant noncompliance shall be used as the basis for reporting the SNC to the regulatory authorities and publishing of the list of industries in SNC as is required of the City by pretreatment program standards.

C. Publication of Users in Significant Noncompliance. The Director of Utilities shall publish annually in accordance with 40 CFR Part 403 or as amended, in any paper of general circulation that provides meaningful public notice within the jurisdiction served by the POTW, a list of the users which, at any time during the previous 12 months, were in significant noncompliance (SNC) with applicable pretreatment standards and requirements. For the purposes of this provision, a significant industrial user (or any industrial user which violates subsection (C)(3), (4), or (7) of this section) is in significant noncompliance if its violations meet one or more of the following criteria:

1. Chronic violations of wastewater discharge limits, defined here as those in which 66 percent or more of all of the measurements taken for the same pollutant parameter during a six-month period exceed (by any magnitude) a numeric pretreatment standard or requirement, including instantaneous limits, as defined by 50 CFR 403.3(1);

2. Technical review criteria (TRC) violations, defined here as those in which 33 percent or more of all of the wastewater measurements taken for the same 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 40 CFR 403.3(1), multiplied by the applicable TRC (TRC = 1.4 for BOD, TSS, fats, oils and grease, and 1.2 for all other pollutants except pH);

3. Any other violation of a pretreatment standard or requirement as defined by 40 CFR 403.3(1) (daily maximum, long-term average, instantaneous limit, or narrative standard) that the Director of Utilities determines has caused, alone or in combination with other discharges, interference or pass-through, including endangering the health of POTW personnel or the general public;

4. Any discharge of pollutants that has caused imminent endangerment to the public or to the environment, or has resulted in the Director of Utilities’ exercise of its emergency authority to halt or prevent such a discharge;

5. Failure to meet, within 90 days of the scheduled date, a compliance schedule milestone contained in a wastewater discharge permit or enforcement order for starting construction, completing construction, or attaining final compliance;

6. Failure to provide, within 45 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;

7. Failure to accurately report noncompliance; or

8. Any other violation(s) or group of violations, including a violation of best management practices, which the Director of Utilities determines will adversely affect the operation or implementation of the local pretreatment program.

D. Compliance Schedules. A notice of violation or administrative order may contain a compliance schedule. The following conditions shall apply to the schedule:

1. The schedule shall contain increments of progress or milestones in the form of dates for the commencement and completion of major events, including the construction and operation of additional pretreatment required for the industrial user to meet the applicable pretreatment standards or City local limits.

2. No increment referred to in subsection (D)(1) of this section shall exceed nine months.

3. Not later than 14 days following each date in the schedule and the final date for compliance, the industrial user shall submit a progress or milestone report to the Director of Utilities including, at a minimum, whether or not it complied with the increment of progress to be met on such date and, if not, the date on which it expects to comply with this increment of progress, the reason for delay, and the steps being taken by the industrial user to return the construction to the schedule established. In no event shall more than nine months elapse between such progress reports to the City.

E. Search/Inspection Warrants.

1. If the Director of Utilities has been refused access to a building, structure or property or any part thereof, and if the Director of Utilities has probable cause to believe that there may be a violation of City ordinance or that there is a need to inspect or sample as part of a routine inspection/sampling program of the City designed to verify compliance with City ordinance or any permit or order issued hereunder, or to protect the overall public health, safety, and welfare of the community, then the Director of Utilities may seek issuance of a search, seizure, or inspection warrant. In the event of an emergency affecting public health and safety, or if the user consents, inspections shall be made without the issuance of a warrant.

2. To the extent that the owner or possessor of the premises requires that a warrant be received, the City may, in its discretion, suspend the permit and/or any other right to discharge to sanitary facilities immediately, and such suspension may continue until such time as a warrant has been received and the inspection has been completed. If no violation of this title or the permit, if applicable, is found, the suspension shall be lifted. In the event that violations of this title or the permit, if applicable, are found, then the suspension may, at the discretion of the City, be continued or terminated, or other enforcement remedies may be sought.

3. The City may choose to inspect the facility to determine compliance with all standards as set forth in this title or permit, if applicable, and additionally, such inspections may be undertaken to verify the wastewater flows and strengths reported by the discharger.

F. Emergency Suspensions of Discharge. The Director of Utilities 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 Director of Utilities 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.

1. Any user notified of a suspension of its discharge shall immediately stop or eliminate its discharge. In the event of a user’s failure to immediately comply voluntarily with the suspension order, the Director of Utilities 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 Director of Utilities may allow the user to recommence its discharge when the user has demonstrated to the satisfaction of the Director of Utilities that the period of endangerment has passed, unless the termination proceedings in SMC 15-06.150 are initiated against the user.

2. 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 Director of Utilities prior to the date of any show cause hearing.

3. After reasonably attempting to informally notify the user, the City may take all necessary steps to halt or prevent such discharge including, but not limited to, plugging or physically disconnecting the user’s access to the City sewer system.

4. Nothing in this section shall be interpreted as requiring a hearing prior to any emergency suspension under this section.

G. Wastewater Discharge Permit – Revocation/Termination of Service. Wastewater discharge permits may be revoked or user’s service may be terminated when any provision of this title is violated. Such user will be notified of the proposed termination of its discharge and be offered an opportunity to show cause under SMC 15-06.020 why the proposed action should not be taken. Exercise of this option by the Director of Utilities shall not be a bar to, or a prerequisite for, taking any other action against the user.

H. Upset.

1. For the purposes of this section, “upset” means an exceptional incident in which there is unintentional and temporary noncompliance with categorical pretreatment standards because of factors beyond the reasonable control of the user. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.

2. An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the requirements of subsection (H)(3) of this section are met.

3. A user 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 user can identify the cause(s) of the upset;

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

c. The user has submitted the following information to the Director of Utilities 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; and

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

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

5. Users 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.

6. Users shall control production of all discharges to the extent necessary to maintain compliance with categorical pretreatment standards upon reduction, loss, or failure of their 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.

I. Bypass.

1. For the purposes of this section:

a. “Bypass” means the intentional diversion of wastestreams from any portion of a user’s treatment facility.

b. “Severe property damage” means substantial physical damage to property, damage to the treatment facilities which causes them to become inoperable, or substantial and permanent loss of natural resources which can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production.

2. A user may allow any bypass to occur which does not cause pretreatment standards or requirements to be violated, but only if it also is for essential maintenance to assure efficient operation. These bypasses are not subject to the provisions of subsections (I)(3) and (4) of this section.

a. If a user knows in advance of the need for a bypass, it shall submit written prior notice to the Director of Utilities, at least 10 days before the date of the bypass, if possible.

b. A user shall submit oral notice to the Director of Utilities of an unanticipated bypass that exceeds applicable pretreatment standards within 24 hours from the time it becomes aware of the bypass. A written submission shall also be provided within five days of the time the user becomes aware of the bypass. The written submission shall contain a description of the bypass and its cause; the duration of the bypass, including exact dates and times, and, if the bypass has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent recurrence of the bypass. The Director of Utilities may waive the written report on a case-by-case basis if the oral report has been received within 24 hours.

3. Bypass is prohibited, and the Director of Utilities may take an enforcement action against a user for a bypass, unless:

a. Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;

b. There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate backup equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or maintenance; and

c. The user submitted notices as required under subsection (I)(2) of this section.

4. The Director of Utilities may approve an anticipated bypass, after considering its adverse effects, if the Director of Utilities determines that it will meet the three conditions listed in subsection (I)(3) of this section.

J. Affirmative Defense. A user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the prohibitions in SMC 13.08.240(E) (except for SMC 13.08.240(E)(2)(a), (b), and (h)) if it can prove that it did not know, or have reason to know, that its discharge, alone or in conjunction with discharges from other sources, would cause pass-through or interference and that either:

1. A local limit exists for each pollutant discharged and the user was in compliance with each limit directly prior to, and during, the pass-through or interference; or

2. No local limit exists, but the discharge did not change substantially in nature or constituents from the user’s prior discharge when the City was regularly in compliance with its NPDES permit, and in the case of interference, was in compliance with applicable sludge use or disposal requirements.

K. Disputes – Request for Ruling. If any user or applicant for a permit disputes the interpretation or application of this title, it may request a ruling by the Director of Utilities, who will set forth his or her determinations on the request.

L. Appeals. If the discharger or applicant for a permit is dissatisfied with the decision, enforcement action or determination made by the Director of Utilities under SMC 15-08.100, he may, within 30 days after receipt of said ruling by the Director of Utilities, appeal said ruling by giving written notice of the basis of his appeal to the Board of Public Utilities of the City. The Board shall, within 30 days after receipt of said written notice of appeal, make a final determination of the issue submitted. Notwithstanding Chapter 1-20 SMC, the determination of the BPU shall be final and may not be appealed to the City Council.

M. Fraud and False Statements. Pursuant to the provisions of 18 U.S.C. Section 1001, relating to fraud and false statements, and the provisions of Section 309(c)(2) of the Act governing false statements, representations, or certification in reports required under the Act, any person who knowingly makes any false statements, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained for this title, a wastewater discharge permit, or who falsifies or tampers with or knowingly renders inaccurate any monitoring device or method required under this title, shall, upon conviction, be punished by a fine of not more than $10,000 or imprisonment for not more than six months, or both.

N. Pretreatment Charges and Fees. The City may adopt reasonable fees for reimbursement of costs of setting up and operating the City’s pretreatment program which may include:

1. Fees for wastewater discharge permit applications including the cost of processing such applications;

2. Fees for monitoring, inspection, and surveillance procedures including the cost of collecting and analyzing a user’s discharge, and reviewing monitoring reports submitted by users;

3. Fees for reviewing and responding to accidental discharge procedures and construction;

4. Fees for filing appeals; and

5. Other fees as the City may deem necessary to carry out the requirements contained herein. These fees relate solely to the matters covered by this title and are separate from all other fees, fines, and penalties chargeable by the City. (Ord. 1078 § 3, 2015; Ord. 3047 § 1 (part), 1993)