§ 50.107  PRETREATMENT ENFORCEMENT RESPONSE PLAN.
   (A)   Introduction.  On August 23, 1990, the Environmental Protection Agency (EPA) adopted a new regulation which requires publicly owned treatment works (POTW) per 40 CFR 403.8 (f) (5) to develop and implement an enforcement response plan.  The plan shall contain detailed procedures indicating how a POTW will investigate and respond to instances of industrial user noncompliance and shall, at a minimum:
      (1)   Describe how the POTW will investigate instances of noncompliance;
      (2)   Describe the types of escalating enforcement responses the POTW will take in response to all anticipated types of industrial user violations and the time periods within which responses will take place;
      (3)   Identify by title the officials(s) responsible for implementing each type of enforcement response; and
      (4)   Adequately reflect the POTWs primary responsibility to enforce all applicable pretreatment requirements and standards, as provided in 40 CFR 403.8(f)(1) and (2).
   (B)   Implementation.  These procedures for implementation of the Enforcement Response Plan shall be implemented by City of Ashland personnel who currently hold the following positions:
      (1)   City Manager.
      (2)   Director of Engineering and Utilities.  Very high level decisions; termination of service, etc.
      (3)   Wastewater Treatment Plant Superintendent.  Responsible for oversight of pretreatment administration.
      (4)   Pretreatment Administrator.
         (a)   Responsible for pretreatment administration.
         (b)   Low to high level decisions.
         (c)   Compliance tracking.
         (d)   Provides assistance to the City Attorney in case of litigation.
         (e)   Sample collection and analysis.
   (C)   Abatement procedures for harmful discharges.
      (1)   Beyond the issuance of notices of violations and fines, the City of Ashland has the following options for immediate abatement of harmful discharges:
         (a)   Closure of sewer access. This is most applicable to the AK Steel Coke Plant where a knife valve exists.  It could also be implemented by excavation and sealing of sewer taps.
         (b)   Termination of water service. This is most applicable to those users who depend entirely on the city water system for their process water.
         (c)   Addition of neutralizing chemicals.
            1.   Lime paid by AK Steel Coke Plant.
            2.   Nitrate and hypochorite addition by County Sewer Districts.
         (d)   Diversion to the river.  This would be accomplished at the pump stations after approval by the KYEPA.
         (e)   Dilution.  Opening fire hydrants into the sewers, etc.
      (2)   The procedures for abatement of harmful discharges shall be implemented by City of Ashland personnel who currently hold the following positions:
         (a)   Director of Engineering and Utilities.
         (b)   Pretreatment Administrator.
         (c)   Water Distribution and Sewer Collection Superintendent.
         (d)   Wastewater Treatment Plant Superintendent.
         (e)   Fire Chief.
         (f)   Police Chief.
   (D)   Definitions.  For the purposes of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
      AO.  Administrative order.
      CIVIL ACTION.  Civil litigation against the industrial user.  This is defined as litigation seeking equitable relief, monetary penalties, and actual damages.
      CRIMINAL INVESTIGATION.  Pursuing punitive measures against an individual and/or organization through a prosecution in a court of law.
      D.  Director of the City of Ashland Department of Engineering and Utilities.
      FINE. Monetary penalty assessed by the city. FINES are assessed by the Pretreatment Administrator.
      IU.  Industrial user.
      NOV.  Notice of violation.
      PA.  City of Ashland Pretreatment Administrator
      POTW.  Publicly owned treatment works/treatment facility, etc.
      SHOW CAUSE.  Formal meeting requiring the IU to appear and demonstrate why the city should not take a proposed enforcement.
   (E)   Explanation of enforcement response guide actions.
      (1)   Notice of violation.  It is an official communication from the city to the noncompliant industrial user which informs the user that a pretreatment program violation has occurred. The notice of violation (NOV) is an initial response to violations. A NOV may be issued in response to significant noncompliance prior to the issuance of an administrative order, fine, or any other ERP actions described herein.  The NOV’s purpose is to notify the industrial user (IU) of the violation(s). It may be the only action taken if the violations) are minor or infrequent.
      (2)   Administrative fines.  An administrative fine is a monetary penalty assessed by the city for violations of the pretreatment program. These fines are assessed at the discretion of the city and the amount of a fine may be determined on an individual basis. Administrative fines are different from civil penalties. Civil penalties are imposed by court proceedings. Fines assessed by the city will not require court proceedings unless the IU refuses to pay or contests the actions. Administrative fines are punitive in nature and are not related to a specific cost incurred by the city.  Fines are to recapture full or partial economic benefit of noncompliance and to deter further violations of the pretreatment program.
      (3)   Administrative order.
         (a)   Administrative orders (AO) are enforcement documents which direct IU's to start or stop specific activities. The terms of AOs may or may not be negotiable with the IUs.  Administrative orders will in general be the first response to significant noncompliance unless the violation deems immediate judicial proceedings. They may also incorporate compliance schedules, administrative penalties, and termination of service orders.
         (b)   The four types of administrative orders of importance are:
            1.   Cease and desist orders.
            2.   Consent orders.
            3.   Show cause orders.
            4.   Compliance orders.
      (4)   Cease and desist order.  This type of order directs the noncompliant user to cease illegal or authorized discharges immediately or to terminate the discharge completely. Commonly, the above order would be used against a user where a discharge could cause pass-through or interference.  Also, it would be used if a user’s discharge caused an emergency situation.  The order may be given upon discovery of the problem or following a hearing.  In an emergency the order may be given by phone.  A written order will follow the phone call notifying the user of the order. The city may order immediate cessation of discharge to the sewer regardless of prior compliance status.  If the situation is an emergency, the order may be used to suspend or permanently revoke the user’s industrial wastewater discharge permit. If the user fails to heed the order, the city may take independent action to alleviate the discharge such as terminating water service or blocking the sewer line.
      (5)   Consent order.  The consent order combines the authority of an AO with the option of a negotiated settlement. It is an agreement between the city and IU containing three basic parts: Compliance schedules; stipulated fines or remedial actions; and, signatures of the city and the IU representatives. A consent order is typically used when an IU accepts responsibility for its noncompliance and is willing to correct the cause. The user does not have to admit noncompliance in the text of the order. Furthermore, signing the order is neither an admission of liability for purposes of civil litigation nor a plea of guilty for purposes of criminal prosecution. The consent order is a means in which the city seeks to prohibit future violations and provides for corrective action by the IU.
      (6)   Show cause order.  A show cause order requires the user/IU to appear before the city and to explain the reason for their noncompliance.  Also, the involved user may want to show cause as to why more stringent enforcement actions should not be taken.  The order can also be used to coerce the user to appear before the city to investigate violations of previous orders.
      (7)   Compliance order.  A compliance order directs the user to achieve compliance by a specific date. This order is issued unilaterally but the terms may be discussed prior to issuance. The compliance order will be issued when noncompliance cannot be eliminated without construction, repair, or process changes. Furthermore, they are used when an IU needs to develop management practices, spill prevention programs, and related city pretreatment program requirements.
      (8)   Civil action/litigation.  Civil action litigation is the formal process of filing a lawsuit against the IU to secure court ordered action to correct violations) and/or assess penalties for violations which includes the recovery of costs to the city for the noncompliance. This action will generally be used when the solution to the violation is costly or complex, the penalty assessed exceeds what the city can administratively impose, or when the IU is unwilling to cooperate. Civil litigation includes enforcement measures which require involvement or approval by the courts for injunctive relief and settlement agreements. Civil litigation is comparable to criminal prosecution in that it requires full cooperation of the attorney and may result in court trials of the IU and assessment of penalties. Moreover, civil litigation is used for different purposes and requires less rigorous burden of proof in order for the city to obtain the desired outcome.
      (9)   Criminal investigation/prosecution.
         (a)   Criminal prosecution is the formal process of charging individuals and/or organizations/corporations with violations of ordinance provisions that are punishable, upon conviction by fines and/or imprisonment. The purposes of criminal prosecution are to punish noncompliance proven through court proceedings and to deter future noncompliance. Criminal offenses are defined as either misdemeanors or felonies. According to federal law, felonies are offenses punishable by death or imprisonment for a term exceeding one year. Examples of environmental crimes characterized as felonies under the Clean Water Act are knowing violations of the Act and knowing endangerment of human health. Knowing violations of the Act are punishable by fines up to $50,000 per day of violation, imprisonment for up to three years, or both. Knowing endangerment (placing another person in imminent danger of death or serious bodily injury) is punishable by fines up to $1,000,000 (for a corporation), imprisonment of up to 15 years, or both. Fines and prison sentences under the Act are doubled for second offenses.
         (b)   Per federal law, a misdemeanor is an offense other than a felony. A misdemeanor is typically punishable by a fine of up to $1,000 or imprisonment for less than one year. In most instances, offenses punishable under the ordinance or the pretreatment program such as tampering with monitoring equipment, submitting false self-monitoring reports, or failing to report illegal discharges are classified as misdemeanors.
         (c)   All crimes require two elements: An act in violation of the law and criminal intent.  Acts which might be classified as criminal may not result in prosecution if the prosecutor cannot prove intent or criminal negligence. A prosecutor must without doubt prove both of the above elements before criminal prosecution will be sought by the city as a viable enforcement action.
      (10)   Termination of sewer service.  Termination of service is the revocation of an ILPs privilege to discharge industrial wastewater into the city’s sewer system. Termination may be made by physical severance of the industry's connection to the collection system, by issuance of an AO which directs the user to cease its discharge, or by a court ruling. Since termination of service may cause the industry to halt production or force closure, the City of Ashland would have to weigh all legal and operational implications of termination before using this enforcement response. Such an action does not prohibit future reinstatement of discharge privileges.
      (11)   Unauthorized discharges (no permit).
Non-Compliance
Nature of Violation
Enforcement Response Options
Personnel
Non-Compliance
Nature of Violation
Enforcement Response Options
Personnel
Un-permitted Discharge
IU unaware of requirement to harm to POTW/ environment
Phone call
PA
NOV with application form
PA
IU unaware of requirement; harm to POTW/ environment
AO with fine
PA
Civil action
D
Failure to apply continues after notice by the POTW
Civil action
D
Criminal investigation
D
Terminate service
D
Non-Permitted Discharge (Failure to Renew)
IU has not submitted application within 30 days of due date
Phone call
PA
NOV
PA
 
      (12)   Discharge limit violation.
Non-Compliance
Nature of the Violation
Enforcement Response Options
Personnel
Non-Compliance
Nature of the Violation
Enforcement Response Options
Personnel
Exceeding Local or Federal Standard (Permit Limit)
Isolated, not significant
Phone Call
PA
NOV
PA
Isolated, significant
NOV
PA
AO to develop control plan
PA
NOV with fine
PA
Isolated, harm to POTW or environment
NOV with fine
PA
Show cause order
D
Civil action
D
Recurring, no harm to POTW or environment
NOV
PA
Compliance schedule
PA
NOV with fine
PA
AO
PA
Recurring; significant (harm to POTW or environment
AO with fine
PA
Show cause order
D
Civil action
D
Terminate service
D
 
      (13)   Monitoring and reporting requirements.
Non-Compliance
Nature of the Violation
Enforcement Response Options
Personnel
Non-Compliance
Nature of the Violation
Enforcement Response Options
Personnel
Reporting Violation
Report is improperly signed, certified, or not in proper form
Phone call
PA
NOV
PA
Report is improperly signed, certified or not in proper form after notice by the POTW
AO
PA
Show cause order
D
Report late, not significant (<30 days late)
Phone call
PA
NOV
PA
Report late, significant (30 days or more)
NOV
PA
NOV with fine
PA
AO to submit report
PA
Reports are always late or no reports at all
AO to submit report
PA
AO with fine
PA
Show cause order
D
Civil action
D
Failure to report spill or changed discharge (no harm)
NOV
PA
NOV with fine
PA
Failure to report spill or changed discharge (harm)
AO with fine
PA
Civil action
D
Repeated failure to report spills
Show cause order
D
Terminate service
D
 
Reporting Violation
Falsification of any kind
Show cause order
D
Criminal investigation
D
Terminate service
D
Failure to Monitor
Failure to monitor all pollutants as required by permit
Phone call
PA
NOV
PA
AO
PA
Recurring failure to monitor all pollutants
NOV
PA
NOV with fine
PA
AO
PA
 
Non-Compliance
Nature of the Violation
Enforcement Response Options
Personnel
Non-Compliance
Nature of the Violation
Enforcement Response Options
Personnel
Improper Sampling/ Analysis
First occurrence with no evidence of intent
Phone call
PA
NOV
PA
Subsequent occurrence with no evidence of intent
Phone call
PA
NOV
PA
NOV with fine
PA
AO
PA
Evidence of intent
Show cause order
D
NOV with fine and AO
PA
Criminal investigation
D
Terminate service
D
Failure to Install Monitoring Equipment
Delay of less than 45 days
Phone call
PA
NOV
PA
AO
PA
Delay of more than 45 days
NOV
PA
NOV with fine
PA
AO
PA
 
Failure to Install Monitoring Equipment
Recurring violation of AO
NOV with fine
PA
Civil action
D
Criminal investigation
D
Terminate service
D
Compliance Schedules
Missed milestone by 30 days or less, or will not affect final milestone
Phone call
PA
NOV
PA
NOV with fine
PA
Missed milestone by more than 30 days, or will affect final milestone (good cause for delay)
NOV
PA
NOV with fine
PA
AO
PA
Show cause order
D
Missed milestone by more than 30 days or will affect final milestone (no good cause for delay)
Show cause order
D
Civil action
D
Terminate service
D
 
 
Non-Compliance
Nature of the Violation
Enforcement Response Options
Personnel
Compliance Schedules
Recurring violation or violation of schedule in AO
Civil action
D
Criminal investigation
D
Terminate service
D
 
      (14)   Other permit violations.
Non-Compliance
Nature of the Violation
Enforcement Response Options
Personnel
Non-Compliance
Nature of the Violation
Enforcement Response Options
Personnel
Waste Streams are Diluted in Lieu of Treatment
Initial violation
Phone call
PA
NOV
PA
NOV with fine
PA
AO
PA
Waste Streams are Diluted in Lieu of Treatment
Recurring violation
NOV with fine
PA
AO
PA
Show cause order
D
Terminate service
D
Failure to Mitigate Non-compliance or Halt Production
Does not result in harm
NOV
PA
NOV with fine
PA
AO to comply
PA
Show cause order
D
Does result in harm
NOV with fine
PA
AO to comply
PA
Show cause order
D
Civil action
D
Terminate service
D
Failure to Properly Operate and Maintain Pretreatment Facility
Does not result in harm
NOV
PA
NOV with fine
PA
Does result in harm
NOV with fine
PA
AO to comply
PA
Civil action
D
 
      (15)   Violations detected during site visits.
Non-Compliance
Nature of the Violation
Enforcement Response Options
Personnel
Non-Compliance
Nature of the Violation
Enforcement Response Options
Personnel
Entry/
Records Denial
Entry denied or consent denied
Obtain warrant and return to IU for entry
PA, D
NOV and AO with fine
PA
Copies of records denied
Obtain warrant and return fo IU to obtain records
PA, D
NOV and AO with fine
PA
Illegal Discharge
No harm to POTW or environment
NOV
PA
NOV with fine
PA
AO
PA
Discharge causes harm or evidence of intent or negligence
NOV and AO with fine
PA
Civil action
D
Criminal investigation
D
Recurring, violation of AO
Terminate service
D
Improper Sampling
Unintentional sampling at incorrect location
Verbal notice
PA
NOV
PA
Un-intentionally using incorrect sample type
Verbal notice
PA
NOV
PA
Un-intentionally using incorrect sampling techniques
Verbal notice
PA
NOV
PA
Inadequate Record Keeping
Inspecting person finds files incomplete to missing (no evidence of intent)
Verbal notice
PA
NOV and AO to produce files
PA
Recurring
NOV and AO to produce files
PA
NOV with fine
PA
Inspecting person finds files incomplete to missing (evidence of intent)
Show cause order
D
Civil action
D
Criminal investigation
D
Failure to report additional monitoring
Inspection detects additional files
NOV
PA
Recurring
NOV
PA
NOV with fine
PA
 
      (16)   Timeframes for responses.
         (a)   All violations will be identified and documented within ten days of receiving compliance information.
         (b)   Initial enforcement responses (involving contact with the industrial user and requesting information on corrective or preventative actions) will occur within 15 days of the violation detection.
         (c)   Follow up actions for continuing or reoccurring violations will be taken within 60 days of the initial enforcement response.  For all continuing violations, the response will include a compliance schedule to eliminate the cause of noncompliance.
         (d)   Violations which threaten health, property, or the environment are considered emergencies and will receive an immediate response such as halting the discharge or terminating service.
         (e)   All violations meeting the criteria for significant noncompliance per this section, will be addressed with the appropriate order within 30 days of the identification of significant noncompliance.
(Ord. 11-2009, passed 2-19-09)