(A) Administrative remedies.
(1) Notice of violation (NOV). When the township finds that a user has violated, or continues to violate this chapter, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, the township may serve upon said user a written notice of violation. Within ten days of the receipt of this notice, an explanation of the violation and a plan for the satisfactory correction and prevention thereof, to include specific required actions, shall be submitted to the township by the user. Submission of this plan shall not relieve the user of liability for any violations occurring before or after receipt of the notice of violation. Nothing in this section shall limit the authority of the township to take any action, including emergency actions or any other enforcement action, without first issuing a notice of violation. The township shall provide NBCRSA with copies of any NOV issued to a customer of NBCRSA at the time of issuance of any such NOV.
(2) Consent orders. The township is hereby empowered to enter into consent orders, assurances of voluntary compliance, or other similar documents establishing an agreement with a user responsible for the noncompliance. Such orders shall include specific actions to be taken by the user to correct the noncompliance within a time period also specified by the consent order. Consent orders shall have the same force and effect as the administrative orders issued pursuant to division (A)(4) below, and shall be enforceable in an appropriate court. The township shall provide NBCRSA with copies of any consent order issued to a customer of NBCRSA at the time of issuance of any such consent order.
(3) Show cause orders.
(a) When the township finds that a user has violated, or continues to violate this chapter, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, the user may be ordered to appear before the township and show cause why a proposed enforcement action should not be taken. Notice shall be served on the user specifying the time and place for the hearing, the proposed enforcement action, the reasons for such action, and a request that the user snow cause why the proposed enforcement action should not be taken. The notice of the hearing shall be served personally or by certified or registered mail (return receipt requested) at least ten days prior to the hearing. Service may be made on any authorized representative of the user. The hearing may be formal or informal, based on the severity of the noncompliance. A formal hearing shall be conducted according to the rules of evidence and open to the public. An informal hearing shall be closed to the public.
(b) After the township has reviewed the evidence, it may issue an order to the user responsible for the discharge directing that, following a specified time period, the sewer service shall be discontinued unless adequate treatment facilities, devices or other related appurtenances have been installed and existing treatment facilities, devices or other related appurtenances are properly operated. Further orders and directives deemed necessary and appropriate may be issued by the township.
(c) A show cause order shall not bar against, or be a prerequisite for, taking any other action against the user. Failure to attend a show cause hearing or otherwise comply with a show cause order is a violation of this chapter for each day of a violation. A show cause order has the full force of law and is enforceable in a court of law. The township shall provide NBCRSA with copies of any show cause order issued to a customer of NBCRSA at the time of issuance of any such show cause order and NBCRSA shall be entitled to participate in any informal and/or formal hearing resulting from such show cause order.
(4) Compliance orders. When the township finds that a user has violated, or continues to violate this chapter, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, the township may issue a compliance order to the user responsible for the discharge directing that the user come into compliance within a period of time set forth in the compliance order. If the user does not come into compliance within the time provided, sewer service may be discontinued unless adequate treatment facilities, devices or other related appurtenances are installed and properly operated. Compliance orders may also contain other requirements to address the noncompliance, including additional self-monitoring and management practices designed to minimize the amount of pollutants discharged to the sewer system. A compliance order does not extend the deadline for compliance established for a pretreatment standard or requirement, nor does a compliance order relieve the user of liability for any violation, including any continuing violation. Issuance of a compliance order shall not bar against, or be a prerequisite for, taking any other enforcement action against the user. Failure of a user to comply with any condition or requirement set forth in a compliance order is a violation of this chapter and is independently enforceable for each day of a violation. A compliance order has the full force of law and is enforceable in a court of law. The township shall provide NBCRSA with copies of any compliance order issued to a customer of NBCRSA at the time of issuance of any such compliance order.
(5) Cease and desist orders.
(a) When the township finds that a user has violated, or continues to violate this chapter, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, or that the user’s past violations are likely to recur, the township may issue a cease and desist order directing the user to cease and desist all such violations and to:
1. Immediately comply with all requirements; and
2. Take such appropriate remedial or preventive action as may be needed to properly address a continuing or threatening violation, including halting operations and/or terminating the discharge.
(b) Issuance of a cease and desist order shall not bar against, or be a prerequisite for, taking any other action against the user. Failure of a user to comply with any condition or requirement set forth in a cease and desist order is a violation of this chapter and is independently enforceable for each day of a violation. A cease and desist order has the full force of law and is enforceable in a court of law. The township shall provide NBCRSA with copies of any cease and desist order issued to a customer of NBCRSA at the time of issuance of any such cease and desist order.
(5) Termination of sewer service. The township may immediately suspend a user’s discharge, after 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 township 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.
(a) Any user notified of a suspension of its discharge shall immediately stop or eliminate the discharge to the POTW. In the event of a failure by the user to immediately comply voluntarily with the termination order, the township shall take 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 township shall allow the user to recommence its discharge when the user has demonstrated to the satisfaction of the township that the period of endangerment has passed, unless the termination proceedings set forth in § 55.03(G)(6) are initiated against the user.
(b) 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 township within five days of the date of occurrence as stipulated in § 55.04(F), or, prior to the date of any show cause or termination hearing under division (A)(3) above and § 55.03(G)(6), whichever date is earlier.
(c) Nothing in this division (A) shall be interpreted as requiring a hearing prior to any termination of sewer service under this division (A).
(B) Judicial remedies.
(1) Injunctive relief. When the township fords that a user has violated, or continues to violate this chapter, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement; or determines the discharge from a user presents imminent or substantial harm to the POTW or the public; or the discharge from the user causes the POTW to violate any condition of its NPDES permit; or the user has shown a lack of ability or intention to comply with a pretreatment standard, the township may petition the Court of Common Pleas for the county through the Township Solicitor for the issuance of a temporary or permanent injunction, as appropriate, which restrains or compels the specific performance of the wastewater discharge permit, order or other requirement imposed by this chapter, on the activities of the user. Such other action as is appropriate for legal and/or equitable relief may also be sought by the township, including the assessment of a civil penalty. A petition for injunctive relief shall not bar against, or be a prerequisite for, taking any other action against a user.
(2) Falsifying information. Any user, who knowingly makes any false statements, representations or certifications in any application, record, report, plan or other document filed or required to be maintained pursuant to this chapter or wastewater discharge permit, or who falsifies, tampers with or knowingly renders inaccurate any monitoring device or method required under this chapter may be subject to criminal liability under federal, state and/or local law.
(C) Affirmative defenses.
(1) Treatment upsets.
(a) For the purposes of this section, UPSET means an exceptional incident in which there is unintentional and temporary noncompliance with federal 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. An upset shall constitute an affirmative defense to an action brought for noncompliance with federal categorical pretreatment standards if the requirements of this division (C)(1) are met.
(b) A user who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs or other relevant evidence that:
1. An upset occurred and the user can identify the cause(s) of the upset;
2. The facility was at the time being operated in a prudent and workmanlike manner and in compliance with applicable operation and maintenance procedures; and
3. The user has submitted the following information to the POTW within 24 hours of becoming aware of the upset. If this information is provided orally, a written submission shall be provided within five days from the date the user became aware of the upset. The written submission shall include the following information:
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.
(c) In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof. A user shall have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for noncompliance with federal categorical pretreatment standards. The user shall control production of all discharges to the extent necessary to maintain compliance with federal categorical pretreatment standards upon reduction, loss or failure of its 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 fails, is reduced or lost.
(2) Treatment bypasses.
(a) For the purposes of this section, BYPASS means the intentional diversion of wastestreams from any portion of a user’s treatment facility. SEVERE PROPERTY DAMAGE means substantial physical damage to property, damage to the treatment facilities which causes them to be inoperable, or substantial or 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. A user may allow a bypass to occur which does not cause pretreatment standards or requirements to be violated, but only if it is for essential maintenance to ensure efficient operation of the treatment system. These types of bypasses are not subject to the following provisions.
(b) Users anticipating a bypass must submit notice to the township at least ten days in advance, if possible. Users shall provide oral notice to the township within 24 hours of discovery of an unanticipated bypass that exceeds applicable pretreatment standards. Users shall submit a written report to the township within five days of becoming aware of the bypass. The written report 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 being taken or planned to reduce, eliminate and prevent recurrence of the bypass. The township may waive the written report on a case-by-case basis if the oral report has been received within 24 hours.
(c) A bypass of the treatment system without township approval is prohibited and the township may take an enforcement action against the user for a bypass unless all of the following conditions are met:
1. The bypass is unavoidable to prevent loss of life, personal injury or severe property damage;
2. There is no feasible alternative to the bypass, including the use of auxiliary treatment facilities, retention of untreated wastewater, 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 preventive maintenance; and
3. The user properly notifies the township as described in this section.
(d) The township may approve an anticipated bypass, after considering its adverse effects, if the township determines that the user will meet the conditions set forth in this section.
(Ord. 2-2010, passed 11-4-2010)