CHAPTER 7-01
WATER SERVICES
SECTIONS:
7-01-001-0001 PURPOSE
7-01-001-0002 WATER SERVICES DIRECTOR
7-01-001-0003 GENERAL DEFINITIONS
7-01-001-0004 RESERVED
7-01-001-0005 RESERVED
7-01-001-0006 RESERVED
7-01-001-0007 RESERVED
7-01-001-0008 RESERVED
7-01-001-0009 RESERVED
7-01-001-0010 RESERVED
7-01-001-0011 ENFORCEMENT RESPONSE PLAN
7-01-001-0012 NOTICE OF VIOLATION
7-01-001-0013 ORDER TO SHOW CAUSE HEARING
7-01-001-0014 CONSENT ORDERS
7-01-001-0015 COMPLIANCE ORDERS
7-01-001-0016 CEASE AND DESIST ORDERS
7-01-001-0017 APPEALS TO WATER COMMISSION
7-01-001-0018 ADMINISTRATIVE FINES
7-01-001-0019 CIVIL AND CRIMINAL PENALTIES
7-01-001-0020 CITY ABATEMENT OF THE VIOLATION
7-01-001-0021 INJUNCTIVE RELIEF
7-01-001-0022 VIOLATIONS DEEMED A PUBLIC NUISANCE
7-01-001-0023 REMEDIES NOT EXCLUSIVE
7-01-001-0001 PURPOSE
The City Council hereby establishes a Water Services Division to provide water services to the community, including delivery of drinking water and reclaimed water; water reclamation and conservation efforts; the care and management of City water services facilities and water resources; sewage systems and treatment; and compliance with Federal and State water laws. (Ord. 2018-32, Enacted, 12/04/2018)
7-01-001-0002 WATER SERVICES DIRECTOR
The City Manager shall appoint a Water Services Director, who is responsible for administration of the Water Services Division and enforcement of all water services regulations. (Ord. 2018-32, Enacted, 12/04/2018)
7-01-001-0003 GENERAL DEFINITIONS
For purposes of Chapters 7-01, 7-02, 7-03, the following words and terms shall have the following meanings, unless the context indicates otherwise:
ADEQ or DEQ: The Arizona Department of Environmental Quality.
CFR: The Code of Federal Regulations, as amended.
CLEAN WATER ACT: The Federal Water Pollution Control Act, Public Law No. 92-500, § 2, 86 Stat. 816, as amended, also known as the "Clean Water Act," codified at 33 U.S.C. §§ 1251 through 1387.
COMMISSION: A commission established by the City Council to review and make recommendations on the water and wastewater systems.
DIRECTOR: The Water Services Director or his or her duly authorized deputy, agent or representative.
DIVISION: Water Services Division.
EPA: United States Environmental Protection Agency.
ERP or Plan: Enforcement Response Plan adopted by the City Council.
U.S.C.: The United States Code, as amended.
WASTEWATER: Sewage. (Ord. 2018-32, Enacted, 12/04/2018)
7-01-001-0004 RESERVED
(Ord. 2018-32, Enacted, 12/04/2018)
7-01-001-0005 RESERVED
(Ord. 2018-32, Enacted, 12/04/2018)
7-01-001-0006 RESERVED
(Ord. 2018-32, Enacted, 12/04/2018)
7-01-001-0007 RESERVED
(Ord. 2018-32, Enacted, 12/04/2018)
7-01-001-0008 RESERVED
(Ord. 2018-32, Enacted, 12/04/2018)
7-01-001-0009 RESERVED
(Ord. 2018-32, Enacted, 12/04/2018)
7-01-001-0010 RESERVED
(Ord. 2018-32, Enacted, 12/04/2018)
7-01-001-0011 ENFORCEMENT RESPONSE PLAN
The City of Flagstaff has adopted an Enforcement Response Plan for regulatory compliance. A copy of this plan will be posted on the Division website and is maintained by the City Clerk as a public record. The plan describes: (A) the City investigation process; (B) escalating enforcement process; (C) the City officials, by title, responsible for each response action; (D) administrative fines and/or penalties for specific or recurring violations. (Ord. 2018-32, Enacted, 12/04/2018)
7-01-001-0012 NOTICE OF VIOLATION
A. Whenever the City discovers that any person appears to have caused or allowed a violation of the City Code (Chapters 7-01, 7-02, 7-03), the City may issue to any person(s) deemed responsible a written notice of violation ("NOV"). The notice shall be served either by personal service or certified mail, upon the last known address of record for owner, the owner’s agent, the occupant, and/or the lessee.
B. The notice may include but is not limited to:
1. Alleged violation and factual basis for allegation;
2. An order for corrective action, the corrective action required, the time frame for corrective action;
3. Administrative fines and/or penalties for continued noncompliance;
4. A statement that failure to pay the administrative fines and/or penalties, or take corrective action may result in a lien against the property;
5. An order to show cause why the City should not bring an action in superior court seeking injunctive relief and/or civil penalties, or an action in municipal court seeking criminal penalties, and hearing date, time and location;
6. The time for response to the NOV or appeal.
C. The notice may also require the violator to:
1. Submit a corrective action plan to the City indicating the cause of the violation, corrective actions to prevent recurrence, and a proposed compliance schedule;
2. Pay all costs of sampling and analysis, as well as costs for laboratory sample analysis;
3. Clean up any material that has left the property or has the potential to impact City facilities, ensure that the cleanup has been completed, and make changes in operations to prevent future releases;
4. Obtain and pay for the services of a qualified person to oversee and certify that corrective actions needed to resolve the violation have been completed;
5. Stop any activity, including but not limited to construction pursuant to a City building or grading permit, where such activity is causing a violation of the City Code (Chapters 7-01, 7-02, 7-03);
8. Abate, within the time specified in the notice, any condition that is in violation of the City Code (Chapters 7-01, 7-02, 7-03); and
9. Abate immediately any condition in violation of this City Code (Chapters 7-01, 7-02, 7-03) if the Director determines that such condition presents an immediate threat to public health, safety, or the environment;
10. If violator refuses or is unable to immediately abate a condition that presents an immediate threat to public health, safety or the environment the City may use all means necessary to abate the incident to protect the public health, safety or the environment and the City may charge all costs of such abatement to the violator.
D. Any person who receives an NOV shall submit a response to the City within ten (10) days from receipt, or other reasonable time specified in the NOV or as approved by the City in writing. The response shall be completed and address the issues raised in the NOV.
E. The City will promptly review the response. If a response is deficient City may require submittal of additional information, suspend a user’s permit, issue a cease and desist order, issue a compliance order, or take further enforcement actions. The City may approve or modify the user’s proposed corrective action plan and compliance schedule as part of an order. If the City discovers a condition that is likely to cause or is causing a discharge that threatens public health, safety or the environment, mitigation may include an immediate cessation of activity and abatement. (Ord. 2018-32, Enacted, 12/04/2018)
7-01-001-0013 ORDER TO SHOW CAUSE HEARING
The City may conduct an order to show cause hearing prior to bringing an enforcement action in court. At an order to show cause hearing, any person who has violated, or continues to violate City water, wastewater, or stormwater regulations, or related permit, consent order or similar agreement, shall appear before the City Water Services Director and show cause why the City’s proposed enforcement action should not be taken. Notice of the hearing date, time, location shall be served on the person at least ten (10) days prior to the hearing. (Ord. 2018-32, Enacted, 12/04/2018)
7-01-001-0014 CONSENT ORDERS
The City may enter into consent orders, negotiated settlements, or similar agreements with any person responsible for noncompliance with this chapter. Such agreements may include but are not limited to the following: (A) findings of violation; (B) corrective action plan; (C) compliance schedule; (D) best management practices to be implemented; (E) agreement to cease specific operations or discharges until certain measures are taken; (F) times for follow-up inspection or testing; (G) administrative fines established pursuant to the criteria of the Enforcement Response Plan; (H) interest on late payments of administrative fines not to exceed one percent (1%) per month; (I) recovery of damages or costs incurred by City; (J) public notice and publication of violations. Such agreements shall be executed by both parties and are enforceable in a court of law. (Ord. 2018-32, Enacted, 12/04/2018)
7-01-001-0015 COMPLIANCE ORDERS
Whenever the City finds that a person has violated, or continues to violate any water, wastewater, or stormwater regulation, or that violations are likely to recur, the City may issue an order to: (A) come into compliance within a specific time period; (B) take other actions to prevent further violations within a specific time period; and (C) pay administrative fines for violations assessed under the Enforcement Response Plan. A compliance order does not relieve a person of liability for any violation, including a continuing violation. A compliance order shall include a statement explaining appeal rights, and the effect of failure to appeal. (Ord. 2018-32, Enacted, 12/04/2018)
7-01-001-0016 CEASE AND DESIST ORDERS
Whenever the City finds that a person has violated, or continues to violate any water, wastewater, or stormwater regulation, or that violations are likely to recur, the City may issue an order to: (A) immediately cease and desist violations; (B) immediately comply with all requirements; (C) take appropriate corrective or preventive action as needed to address a continuing or threatened violation. A cease and desist order is generally ordered to prevent immediate and unreasonable harm or damages. A cease and desist order does not relieve a person of liability for any violation, including a continuing violation. The cease and desist order shall include a statement explaining appeal rights, and the effect of failure to appeal. (Ord. 2018-32, Enacted, 12/04/2018)
7-01-001-0017 APPEALS TO WATER COMMISSION
A. Any person receiving a compliance order or cease and desist order may appeal the determination. The notice of appeal must be received by the Water Services Director within ten (10) days from receipt of such order and include the following:
1. The request for hearing must be in writing, state the objection to the notice of violation, and be mailed or delivered to the Director;
2. The Director shall, within ten (10) working days of the receipt of an appeal, provide notice of a date and time set for a hearing;
3. The City Water Commission will conduct hearings on appeals under City Code (Chapters 7-01, 7-02, 7-03) according to its usual rules of procedure, and the hearing shall be continuous until the Water Commission closes the record. The user may be heard in person or by its authorized representative at such hearing. Hearings shall be conducted informally as to the order of proceeding and presentation of evidence. The Water Commission shall admit evidence over hearsay objections where the offered evidence has substantial probative value and reliability. Further, copies of records and documents prepared in the ordinary course of business may be admitted, without objection as to foundation, but subject to argument as to weight, admissibility, and authenticity. Summary business records may be admitted subject to satisfactory proof of the reliability of the summaries. In all cases, the decision of the Water Commission shall be made solely upon substantial and reliable evidence presented with the user’s protest or at the hearing. All expenses incurred in the hearing shall be paid by the party incurring the same.
4. The Water Commission shall issue its decision not later than thirty (30) days after the close of the record thereon. Any refund of surcharges or penalties ordered by the Water Commission pursuant to a hearing hereunder shall be made within thirty (30) days of the Water Commission’s order therefor, or at such later date as the Water Commission shall provide in its order. The Water Commission’s decision shall be final.
B. If the time for appeal has expired, the City order is deemed to be a final decision. The City Attorney’s Office may take all actions deemed necessary to enforce a final decision. (Ord. 2018-32, Enacted, 12/04/2018)
7-01-001-0018 ADMINISTRATIVE FINES
Whenever the City finds that person has violated, or continues to violate, any provision of City Code (Chapters 7-01, 7-02, 7-03), a City order or permit issued thereunder, or consent order, the City may fine such person in an amount determined pursuant to the Enforcement Response Plan and administrative fine policy established therein. For continuing violations, each day may constitute a violation. Such fines shall be assessed on a per-violation, per-day basis. In the case of monthly or other long-term average discharge limits, fines shall be assessed for each day during the period of violation. The City may add the costs of publication (notice of significant noncompliance of an industrial user) to the fine. (Ord. 2018-32, Enacted, 12/04/2018)
7-01-001-0019 CIVIL AND CRIMINAL PENALTIES
A. Civil Penalties – Wastewater and Pretreatment Violations. Any person who has violated, or continues to violate, any applicable Federal, State or local pretreatment standard or requirement found in City Code (Chapter 7-02), a City order or permit issued thereunder, is liable to the City for a maximum civil penalty of twenty-five thousand dollars ($25,000.00) per violation, per day in accordance with A.R.S. Section 49-391. In the case of monthly or other long-term average discharge limits, fines shall be assessed for each day during the period of violation. In determining the amount of the penalty, the court shall consider: (1) the seriousness of the violation, (2) the economic benefit, if any, resulting from the violation, (3) any history of such violation, (4) any good faith efforts to comply with the applicable requirements, (5) the economic impact of the penalty on the violator, and (6) such other factors as justice may require including but not limited to the extent of harm caused by the violation, the magnitude and duration of the violation, and corrective actions taken by the violator.
B. Criminal Penalties. Unless otherwise provided or designated, any person convicted of a willful or negligent violation of any section of this City Code (including Chapters 7-01, 7-02, and 7-03) is guilty of a misdemeanor and shall be fined in a sum not to exceed two thousand five hundred dollars ($2,500.00) for any one (1) offense, and a person may be confined in the County jail for a period not exceeding ninety (90) days. Any violation which is continuing in nature shall constitute a separate offense on each successive date the violation continues, unless otherwise provided.
D. State or Federal Enforcement Penalties. The City may refer a violation of the Clean Water Act to the ADEQ or Attorney General’s Office for enforcement pursuant to A.R.S. Section 49-261 et seq. A person who violates the Clean Water Act or any Clean Water Act regulation or permit is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000.00) per day per violation, pursuant to A.R.S. Section 49-262, or criminal penalties and/or imprisonment as set forth in A.R.S. Section 49-263 et seq., as may be amended, and/or to civil and criminal penalties under Federal law 40 CFR 122.41(a). (Ord. 2018-32, Enacted, 12/04/2018)
7-01-001-0020 CITY ABATEMENT OF THE VIOLATION
A. If the violation of City Code (Chapters 7-01, 7-02, 7-03) has not been corrected pursuant to the requirements set forth in the consent order, compliance order, or cease and desist order, then representatives of the City may seek injunctive relief to proceed with abatement itself and charge the costs back to the responsible persons.
B. Prior to undertaking any nonemergency abatement action, City will present the responsible person with an estimate of costs of abatement. Within thirty (30) days after abatement of the violation, the owner of the property will be notified of the actual cost of abatement, including administrative costs. The property owner may file a written protest objecting to the amount of the assessment within fifteen (15) days. If the amount due is not paid within fifteen (15) days or by the time in which to file for an appeal is expired, the charges shall become a special assessment against the property and shall constitute a lien on the property for the amount of the assessment. The assessment shall be recorded in the office of the Coconino County Recorder, including the date, amount of the assessment, and the legal description of the property against which the assessment is made. From the date of its recording, the assessment shall be a lien on the property and shall accrue interest at the rate prescribed by A.R.S. Section 44-1201. The City shall have the right to bring an action to enforce the lien in the Superior Court of Coconino County at any time after the recording of the assessment, but failure to enforce the lien by such action shall not affect its validity. The recorded assessment shall be prima facie evidence of the truth of all matters recited therein, and of the regularity of all proceedings prior to the recording of the assessment. (Ord. 2018-32, Enacted, 12/04/2018)
7-01-001-0021 INJUNCTIVE RELIEF
It shall be unlawful for any person to violate any provisions or to fail to comply with any of the requirements of this chapter. If a person has violated or continues to violate any provisions of this chapter, the City may petition the Coconino County Superior Court for a preliminary or permanent injunction restraining the person from activities which would create further violations or compelling the person to perform abatement or remediation of the violation. (Ord. 2018-32, Enacted, 12/04/2018)
7-01-001-0022 VIOLATIONS DEEMED A PUBLIC NUISANCE
In addition to the enforcement processes and penalties provided herein, if any condition caused or permitted to exist in violation of any of the provisions of this City Code (Chapters 7-01, 7-02, 7-03) is a threat to public health, safety, and welfare, and is declared and deemed a nuisance by the City, such condition may be immediately abated or restored at the violator’s expense, and/or a civil action to abate, enjoin, or otherwise compel the cessation of such nuisance may be taken. (Ord. 2018-32, Enacted, 12/04/2018)
7-01-001-0023 REMEDIES NOT EXCLUSIVE
The remedies listed in this chapter are not exclusive of any other remedies available under any applicable Federal, State or local law and it is within the discretion of the City of Flagstaff to seek cumulative remedies, including but not limited to recovery of damages for personal injury or property damage. The City may recover all attorneys’ fees, court costs, and other expenses associated with enforcement of this chapter, including sampling and monitoring expenses. (Ord. 2018-32, Enacted, 12/04/2018)