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HomeMy WebLinkAbout114 - 10/15/1991 - AMENDING CITY CODE RELATING TO ENFORCEMENT REMEDIES AND PROCEDURES AGAINST USERS OF THE CITYS WASTEW ORDINANCE NO. 114, 1991 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING ARTICLE IV OF CHAPTER 26 OF THE CODE OF THE CITY OF FORT COLLINS RELATING TO ENFORCEMENT REMEDIES AND PROCEDURES AGAINST USERS OF THE CITY'S WASTEWATER UTILITY SYSTEM BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS that the following Sections of Article IV of Chapter 26 of the Code of the City of Fort Collins are hereby added, amended and renumbered as follows: Section 1 . That Section 26-206 of the Code of the City of Fort Collins is hereby amended by the addition and amendment of the following definitions: Sec. 26-206. Definitions. Administrative order shall mean an enforcement document that directs a user to undertake or to cease specified activities or to comply with other specific terms contained in the order, including, but not limited to, payment of an administrative fine. Cease and desist order shall mean an administrative order that directs a user to cease immediately any violation of the provisions of this Article, or of a permit or administrative order issued hereunder. The order may also temporarily suspend or permanently revoke a discharge permit. Compliance order shall mean an administrative order that directs a user to comply with the provisions of this Article, or of a permit or administrative order issued hereunder, by a specific date. The order may contain a compliance schedule involving specific actions to be completed within specific time periods. Consent order shall mean an administrative order that is issued pursuant to an agreement between a user and the Director usually containing a compliance schedule and stipulated fines, penalties or other remedial actions. Discharge shall mean the disposal of any liquid, solid or other material , including, but not limited to, wastewater, holding tank waste, and water, by a wastewater utility user into the wastewater system of the city. Holding tank waste means any wastewater from holding tanks such as vessels, chemical toilets, campers, trailers, septic tanks, sealed vaults and vacuum-pump tank trucks. Notice of violation shall mean an official written communication from the Director to a user that informs the user that it is in violation of the provisions of this Article, or of a permit or administrative order issued under this Article. Show cause order shall mean an administrative order that directs a user to appear at a hearing held before the Director for the user to explain its alleged non-compliance with the provisions of this Article, or of a permit or administrative order issued hereunder, and to show cause why the Director should not take enforcement action authorized under this Article against the user. User shall mean any person who discharges, contributes, causes or permits the contribution or discharge of any liquid, solid or other material , including, but not limited to, wastewater, into the wastewater utility. Section 2. That Section 26-216 of the Code of the City of Fort Collins is hereby repealed in its entirety and subsequent sections are renumbered through Division 1 . Section 3. That Section 26-220 of the Code of the City of Fort Collins is hereby repealed in its entirety. Secs. 26-219--26-235. Reserved. Section 4. That Section 26-238(b) is hereby amended to read as follows: (b) If any work requiring a permit is commenced without a permit first having been obtained, the Director may immediately issue a stop-work order until the proper permit is obtained and the offender shall pay any additional penalties determined and established by the Director. No building permit shall be issued until all utility application requirements have been met. Section 5. That Section 26-320 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 26-320. Falsifying information. Any person who knowingly makes false statements, representations or certifications in any application, record, report, plan or other document filed with the utility or required to be maintained pursuant to the provisions of this Article, or of any permit or administrative order issued hereunder, or who falsifies, tampers with or knowingly renders inaccurate any monitoring device or method required under this Article, or of any permit or administrative order issued hereunder, commits a misdemeanor under this Code subject to punishment upon conviction as provided in Section 1-15. Section 6. That a new Division 7 be created and that Sections 26- 344(a) (7) , 26-344(b) (2) and (3) , and 26-344(c) are hereby amended and Subsection 26-344(b) (4) is hereby added to read as follows: DIVISION 7. ENFORCEMENT. Sec. 26-344. Discharge in violation of prohibitions and limitations. 2 (a) Regulatory actions. If wastewater containing any substance described in the discharge prohibitions or in excess of pollutant limitations is being or has been discharged or is proposed to be discharged into the wastewater utility, the Director, by administrative order or any other procedure or measure authorized by this Article, may: (7) Take such other or further remedial or enforcement action as is authorized under this Article. (b) Rejection of wastewater. The Director may immediately halt or eliminate an actual or threatened discharge of any liquid, solid or other material including, but not limited to, wastewater, into the wastewater utility without prior written notice if the Director determines that such discharge: (2) Will result in interference with the wastewater system; or (3) Will cause the city to violate its NPDES permit; or (4) Will result in pass through. (c) Notification. Except in the case of a spill where accidental discharge procedures must be followed pursuant to Section 26-339(c) , the user concerned shall notify the utility within twenty-four (24) hours of becoming aware of any discharge in violation of this Article, or of a permit or administrative order issued hereunder. The user's initial notification shall be followed within five (5) working days by a detailed written statement to the Director from the user describing the causes of the harmful contribution and the measures taken to prevent any future occurrence. Section 7. That subsections (a) (1) and (b) of Section 26-345 of the Code of the City of fort Collins are hereby amended and Section 26-346 is hereby combined with Section 26-345 and amended to read as follows: Sec. 26-345. Revocation of permit. (a) The Director may revoke an industrial discharge permit and terminate water and/or wastewater services of any permittee who: (1) Violates any condition stated in the permit, any provision of this Article, any provision of an administrative order issued under this Article, or any applicable state or federal law, rule or regulation; (b) If the Director finds one (1) of the grounds in (a) of this Section or any other ground for revocation in this Article, the Director may issue a cease and desist order either revoking the permit for the remainder of its term or suspending it for any 3 shorter period according to severity of the violation, its effect on public health, safety, and welfare, and the time during which the violation can be remedied if at all . (c) Any user notified by a cease and desist order of the revocation of its industrial discharge permit or privilege to use the wastewater utility shall immediately stop or eliminate the offending discharge. If the user fails to voluntarily comply with the cease and desist order, the Director may turn off city water to the premises and, when necessary to prevent or minimize damage to the wastewater utility, harm to any individual , or harm to the environment, disconnect the wastewater service. (d) The Director may reinstate the industrial discharge permit and the privilege to use water and/or wastewater utility service upon proof that the violation of this Article, or of a permit or administrative order issued hereunder, has been eliminated and upon the payment by the user of all costs and expenses incurred by the utility as a result of the violation, on account of the suspension of service, and for the restoration of water and/or wastewater service. Section 8. That a new Section 26-346 is hereby added to read as follows: Sec. 26-346. Notice of violation. Whenever the Director finds that any user has violated or is violating this Article, or a permit or administrative order issued hereunder, the Director may have served upon said user a notice of violation. The notice may require from the user an explanation of the violation and the submission of a satisfactory plan for the correction and prevention thereof. Submission of the plan and completion of any related actions shall not relieve the user of liability for any violations of this Article occurring before or after receipt of the notice or prevent the Director from taking any other enforcement action authorized under this Article. Section 9. That new Sections 26-347 through 26-350 are hereby added and all other sections renumbered to read as follows: Sec. 26-347. Administrative orders. Whenever the Director finds that any user has violated or is violating this Article, or a permit or administrative order issued hereunder, the Director may have served upon said user an administrative order. Such order may be a compliance order, a show cause order, a cease and desist order, or an order assessing an administrative fine. Compliance with an administrative order shall not relieve the user of liability for any violations occurring before or after the issuance of the administrative order or prevent the director from taking any other enforcement action authorized under this Article. 4 Sec. 26-348. Consent orders. The Director is authorized to enter into consent orders establishing an agreement with any user responsible for non- compliance with the provisions of this Article, or of a permit or administrative order issued under this Article. Such orders shall include specific action to be taken by the user to correct the non- compliance within a time period also specified by the order. The consent order shall have the same force and effect as administrative orders issued pursuant to this Article. Sec. 26-349. Show cause hearing. Whenever the Director finds that any user has violated or is violating this Article, or a permit or administrative order issued hereunder, the Director may hold a show cause hearing. A show cause order specifying the time and place of the hearing, the reason for the hearing, any proposed enforcement action, and a request that the user show cause why the proposed enforcement action should not be taken, shall be served on the user. The show cause order shall be served on the user at least ten (10) days prior to the hearing. Whether or not a duly notified user appears or is represented at the hearing, the Director may immediately pursue any other enforcement action authorized under this Article. Sec. 26-350. Administrative fines. Whenever the Director finds that any user has violated or is violating this Article, or a permit or administrative order issued hereunder, the Director may issue and serve on the user an administrative order assessing an administrative fine against the user. The Director may assess an administrative fine of up to One Thousand Dollars ($1,000. ) for each violation. Each day on which non-compliance continues shall be deemed a separate and distinct violation. A violation of a monthly average discharge limitation shall be considered to be the number of violations equal to the number of days of the user's discharge into the wastewater system during the month. Such assessed fines may be added to the user' s next scheduled sewer service charges and if not paid may be collected as other delinquent utility charges under this Chapter. Such unpaid fines shall also constitute a perpetual lien as provided in Section 26-718 against the real property to which the sewer service is provided to the user. Payment of an administrative fine shall not relieve the user of any other liability provided for under this Article or prevent the Director from taking any other enforcement action authorized under this Article. Section 10. That Section 26-347 of the Code of the City of Fort Collins be renumbered to Section 26-351 and amended to read as follows: 5 Sec. 26-351. Administrative appeal procedure. (a) Any permit applicant, permit holder or user affected by and dissatisfied with any decision, action, administrative order, assessment of administrative fine, or determination made and issued by the Director in interpreting, enforcing or implementing the provisions of this Article, or the provisions of any permit or administrative order issued under this Article, shall file with the Director a written request for reconsideration within ten (10) working days of such decision, action, administrative order or determination, setting forth in detail the facts supporting the request, whereupon the Director shall hold a hearing within ten (10) working days of such request. All requests for reconsideration shall be acted upon by the Director within ten (10) working days from the date of the hearing. The decision, action, administrative order or determination shall remain in effect during the reconsideration period. (b) If the person requesting the reconsideration is not satisfied with the final decision of the Director and wishes to appeal the decision, such person shall appeal the Director' s final decision to the City Council , which appeal shall be filed and conducted in accordance with the appeals procedures provided in Division 2 of Article II of Chapter 2 of the Code, and shall be subject to all the same terms and conditions applicable to appeals by appellants from boards and commissions of the city as provided in Division 2. Section 11. That Section 26-352 be added to read as follows: Sec. 26-352. Civil liability. Any user who has violated or continues to violate this Article, or any permit or administrative order issued hereunder, shall be liable to the city for a civil penalty of not more than Ten Thousand Dollars ($10,000.) , plus any actual damages incurred by the city, per violation per day for as long as the violation continues. In addition to the above-described penalty and damages, the city may recover from the user the city's reasonable attorneys fees, court costs, and other expenses incurred as a result of its enforcement activities, including sampling and monitoring expenses. If the user fails to voluntarily pay to the city the civil penalty, the city may commence a legal action in a court of competent jurisdiction for recovery of such sums. In determining the amount of the user' s 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 by the user from the violation, corrective actions taken by the user, the compliance history of the user, and any other factors as justice requires. 6 Section 12. That Section 26-348 of the Code of the City of Fort Collins be renumbered to Section 26-353 and amended to read as follows: Sec. 26-353. Legal and injunctive relief. If any user discharges into the wastewater utility contrary to the provisions of this Article, or any permit or administrative order issued hereunder, or any federal or state pretreatment requirements or commits any other act contrary to said provisions, permits or orders, the city may commence an action for appropriate legal and/or equitable relief, including, without limitation, a temporary restraining order, preliminary injunction and/or permanent injunction against the violator. In such event, the city may recover reasonable attorneys' fees, court costs, court reporters' fees and other expenses of litigation from the violator if the city prevails in the litigation. Section 13. That Section 26-349 of the Code of the City of Fort Collins be renumbered to Section 26-354 and be amended to read as follows: Sec. 26-354. Civil liability for expenses and fines. (a) Any person violating the provisions of this Article, or of any permit or administrative order issued hereunder, shall be liable to the city for any expense, loss or damage caused the city by reason of such violation including, without limitation, the increased costs for managing effluent and sludge, when such increases are the result of the user's discharge. Such charges will be added to a user's service charges and if not paid may be collected as other delinquent utility charges under this Chapter. (b) If a user discharges pollutants that cause the city to violate any condition of its NPDES permit and to be fined by EPA or the state for such violation, the user shall be liable to the city for the total amount of the fine assessed against the city including without limitation, all legal , sampling and analytical testing costs. Such fine will be added to the user's service charges and if not paid may be collected as other delinquent utility charges under this Chapter. Such unpaid fine shall also constitute a perpetual lien as provided in Section 26-718 against the real property to which the sewer service is provided to the user. Section 14. That a new Section 26-355 be added to read as follows: Sec. 26-355. Criminal violation. Any person who recklessly, knowingly, or intentionally violates any provision of this Article, or of any permit or administrative order issued hereunder, or any federal or state law or regulation adopted by reference by this Article, or any rules and regulations promulgated under this Article, shall be guilty of a misdemeanor subject to punishment upon conviction as provided in Section 1-15. 7 Each day on which a violation occurs shall be deemed a separate and distinct violation. A violation of a monthly average discharge limitation shall be considered to be the number of violations equal to the number of days of the user's discharge into the wastewater system during the month. The Director may initiate a criminal prosecution against any person in violation of this Section by the filing of a written complaint with the City Attorney. If the City Attorney finds that there is probable cause to believe that a violation of this Section was committed and that probable cause exists to believe that such person committed the violation, the City Attorney may commence in Municipal Court a criminal prosecution of the person in accordance with the rules of the Municipal Court. Section 15. That a new Section 26-356 is hereby added to read as follows: Sec. 26-356. Service. Any notice of violation or administrative order required to be served by this Article on a user shall be made by personal service or by mailing such notice or order by certified mail , return receipt requested, to the last known address of the user. If required by this Article or by any state or federal law, a notice advising a person or user of the enactment of an applicable pretreatment standard or requirement shall be served in the same manner. Section 16. That Section 26-350 of the Code of the City of Fort Collins be renumbered to be Section 26-357. Section 17. That a new Section 26-358 is hereby added to read as follows: Sec. 26-358. Remedies cumulative. It is the purpose of this Article to provide additional and cumulative remedies to prevent, control and abate water pollution; to protect water quality; to protect the wastewater system; to protect the health, safety and welfare of the public; and to protect the environment. Nothing in this Article shall be deemed to abridge, affect, preclude or alter any rights of action or remedies available to the city under any other provisions of this Code or under any state or federal law, rule or regulation. Secs. 26-359 - 26-365. Reserved. Section 18. Effective date. This Ordinance No. 114, 1991, shall take effect upon the date of approval of this Ordinance by the EPA. 8 Introduced, considered favorably on first reading, and ordered published in summary form this 1st day of October, A.D. 1991, and to be presented for final passage on the 15th day of October, A.D. 1991 . Mayor U Mayor ATTEST: City Clerk Passed and adopted on final reading this 15th day of October, A.D. 1991 . a/, Y rES TT City Clerk 9