100.32 INSPECTION, SAMPLING, AND RECORD KEEPING AUTHORITY.

Users shall give the following authorities to the WRA and its operating contractor:

1.   Users shall permit authorized representatives or agents of the WRA to enter upon all properties and all parts of the premises or upon properties of users with wastewater discharge permits for the purposes of inspection, sampling, records examination, records copying, or the performance of any of their duties. This shall include the right to set up, on the user's property, such devices as are necessary to conduct sampling, inspection, compliance monitoring, or metering operations as may be required in pursuance of the implementation and enforcement of this chapter.

2.   Where a user has security measures in force which would require proper identification and clearance before entry into their premises, the user shall make necessary arrangements in the security measures so that, upon presentation of suitable identification, personnel from the WRA or operating contractor will be permitted to enter, without delay, for the purposes of performing their specific responsibilities.

3.   All users subject to any of the reporting requirements of this chapter shall maintain copies of reports and records of all information as required in 40 CFR 403.12(o) resulting from any monitoring activities required by this chapter for a minimum of three (3) years and shall make such records available for inspection and copying by the WRA and its operating contractor. This period of retention shall be extended until the completion of any unresolved negotiation, hearing, or litigation involving a purported violation.

100.33 CONFIDENTIAL INFORMATION.

1.   Except as herein provided, documents, data and information obtained from user reports, questionnaires, permit applications and inspections, shall be made available to the public or other governmental agencies without restriction. If the user specifically requests and is able to demonstrate that the release of such information would divulge information concerning processes or methods of production entitled to protection under law as trade secrets of the user or would give advantage to competitors and serve no public purpose the WRA Director shall not make such information available to the public but such information shall be available to the U.S. EPA or IDNR.

2.   Decisions by the WRA Director to deny confidential status for information may be appealed using the procedures in Section 100.34. In determining whether information is confidential, the provision of Chapter 22 of the Code of Iowa shall prevail.

3.   Effluent data and WRA enforcement actions will not be considered confidential records or information.

100.34 APPEAL OF DENIAL OF CONFIDENTIAL STATUS.

1.   Any person aggrieved by a decision to release information or data obtained as provided in subsection 100.33(1) of this chapter and who can demonstrate a direct and substantial interest in the information or data sought to be kept confidential may appeal the decision of the WRA Director. A request for appeal shall be filed in writing with the Director not less than five days after the decision to deny confidential status to such information or data. The appeal request shall include a statement of the basis upon which the request for confidential status is made, as well as the appealing party's interest in the information or data sought to be kept confidential. The WRA Director may request additional information from the appeal party.

2.   Based upon the information provided by the appealing party, the WRA Director shall make a determination with respect to the confidentiality of the information or data at issue. The WRA Director shall notify the parties, in writing, of the decision within seven days after receipt of the appeal.

3.   If still aggrieved by the WRA Director's determination on appeal, a party may file an action in Polk County District Court, seeking a declaratory ruling with respect to the confidentiality of such documents, data and information, or seeking an injunction to prevent the disclosure of same.

4.   During the pendency of an appeal to the WRA Director, the documents, data or information at issue shall be kept confidential. However, if during the pendency of such appeal, a request for examination or copying of such documents, data or information is made of the WRA or its operating contractor pursuant to Chapter 22 of the Code of Iowa, the WRA or its operating contractor will notify the appealing party of such request for disclosure and will keep confidential the requested documents, data or information, pending action by the appealing party to defend its confidentiality request. In that notification, the appealing party requesting confidentiality will be given not more than five calendar days within which to file suit in Polk County District Court seeking the entry of a declaratory order and/or injunction to protect and keep confidential such documents, data or information. If the appealing party fails to initiate suit within the time requested, the WRA Director shall release the documents, data or information at issue for public examination.

5.   If during the pendency of such appeal, a lawsuit is initiated pursuant to Chapter 22 of the Code of Iowa seeking the release of such documents, data or information, the appealing party shall take action to defend its confidentiality request in said lawsuit. If the appealing party fails to defend its confidentiality request in said suit, the WRA Director shall release the documents, date or information at issue for public examination.

100.35 PUBLIC NOTIFICATION OF SIGNIFICANT NONCOMPLIANCE.

The WRA shall annually publish, in the largest daily newspaper published in the WRA community, a list of users which at any time during the previous twelve months, were in significant noncompliance as defined in Section 100.36 of this chapter.

100.36 SIGNIFICANT NONCOMPLIANCE (SNC).

Any violation of pretreatment requirements (i.e., but not limited to: limits, sampling, analysis, reporting, meeting compliance schedules, and regulatory deadlines) is an instance of noncompliance for which the user is liable for enforcement, including penalties and injunctive relief. Instances of SNC are user violations which meet one or more of the following criteria:

1.   Violations of wastewater discharge limits.

   A.   Chronic Violations. Sixty-six percent (66%) or more of the measurements exceed the same daily maximum limit or the same average limit in a 6-month period (any magnitude of excess).

   B.   Technical Review Criteria (TRC) Violations. Thirty-three percent (33%) or more of the measurements exceed the same daily maximum limit or the same average limit by more than the TRC in a 6-month period. (e.g., limit x TRC = the point at which a violation becomes a TRC violation). There are two groups of TRC’s:

      Group I for conventional pollutants (BOD, TSS, FOG)   TRC = 1.4

      Group II for all other pollutants   TRC = 1.2

   C.   Any other violation(s) of a wastewater discharge permit limit (average or daily maximum) that the WRA Director believes has caused, alone or in combination with other discharges, interference (including slug loads) or pass through; or endangered the health of the public or of the personnel of the WRA, or its operating contractor.

   D.   Any discharge of a pollutant that has caused imminent endangerment to human health/welfare or to the environment and has resulted in the exercise of emergency authority to halt or prevent such a discharge.

2.   Violations of compliance schedule milestones, contained in a wastewater discharge permit or enforcement order, for starting construction, completing construction, or attaining final compliance by ninety (90) days or more after the schedule date.

3.   Failure to provide reports for compliance schedules, self-monitoring data, or any other report required by the POTW within forty-five (45) days from the due date.

4.   Failure to accurately report noncompliance.

5.   Any other violations or group of violations, which may include a violation of Best Management Practices that the WRA Director considers to be significant.

When a user is in SNC, the WRA Director is directed to: (a) report the information to IDNR as part of the annual pretreatment performance summary of permitted user noncompliance; (b) include the user in the annual public notification according to Section 100.35; (c) address SNC through appropriate enforcement actions or document in a timely manner the reasons for withholding enforcement.

100.37 ADMINISTRATIVE ACTIONS.

1.   The WRA Director may issue a written notice to the user giving specific nature of violations which shall include the frequency, magnitude and impact of the violation upon the POTW. The notice may also include the following:

   A.   An order requiring a plan of action for preventing reoccurrence of the violation;

   B.   An order requiring specific action for accomplishing remediation;

   C.   An order requiring the user to respond in writing within thirty (30) days.

2.   The WRA Director is empowered to enter into consent orders, assurances of voluntary compliance, or other similar documents establishing an agreement with the user responsible for any noncompliance. Such orders will include specific action to be taken by the user to correct noncompliance within a time period specified by the order.

3.   The WRA Director may issue enforceable orders or schedules to require compliance with pretreatment standards including appropriate interim limits. Such orders and schedules may be incorporated as a revision to an existing wastewater discharge permit and shall not require the consent of the user.

100.38 ACTIONS AUTHORIZED.

Where there has been noncompliance with any provision of this chapter the WRA Director may request the attorney representing the WRA or operating contractor to bring an action in equity or at law to seek the issuance of a preliminary or permanent injunction or both or such other relief as may be appropriate to compel compliance by the user with this chapter. In addition to other remedies provided under this or other provisions of this chapter, in any action brought to enforce the provisions of this chapter, the attorney is authorized to seek to recover all actual damages suffered by the City or the WRA, including all actual damages and losses related to costs of repair and remediation of the POTW, costs of investigation and administration reasonably related to any particular violation and attorney fees.

100.39 CIVIL PENALTIES.

1.   Each violation of any provision of this chapter or of a permit issued under this chapter is declared to be a municipal infraction. Each day that a violation of a provision of this chapter continues and each day that a violation of permit issued under this chapter continues shall be considered a separate municipal infraction.

2.   Any person who knowingly makes a false statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained pursuant to this chapter or a wastewater discharge permit or who falsifies, tampers with or knowingly renders inaccurate any monitoring device or method required under this chapter commits a municipal infraction, punishable by a civil penalty as provided in Chapter 4 of this Code of Ordinances.

3.   Any person who fails to perform an act required by the provisions of this chapter, or who commits an act prohibited by the provisions of this chapter, commits an environmental violation and shall be guilty of a municipal infraction, punishable by a civil penalty. Violation of a pretreatment standard or requirement referred to in 40 CFR 403.8 is an environmental violation punishable by a civil penalty as provided in Chapter 4 of this Code of Ordinances.

100.40 PERFORMANCE AND PAYMENT BONDS .

1.   The WRA Director may decline to reissue a permit to any user who has failed to comply with the provision of this chapter or any order or previous permit issued hereunder unless such user first files a satisfactory bond payable to the WRA in a sum not to exceed the value determined by the WRA Director to be necessary to achieve compliance giving due consideration to the number and magnitude of previous violations, potential need for remediation and stating the reasons which support the amount of bond in a written order directed to the user, but in no case shall the bond be required to be greater than $100,000.00. The user shall use a bond form prescribed by the WRA.

2.   The WRA director may require any user, including any permitted or non-permitted waste generator which sends its wastewater by truck to the WRF, to obtain a bond payable to the WRA with reasonable surety in a penal sum which will adequately cover treatment costs, surcharges, fees, or any other charges associated with discharge of wastewater to the POTW in the amount as listed in Section 100.17. The user shall use a bond form prescribed by the WRA.

(Ord. 2118 - Sep. 22 Supp.)