(a) Purpose and Administration. The purpose of this Enforcement Response Plan (ERP) is to provide consistent enforcement responses for all similar violations and circumstances. All Users discharging any non-domestic waste to the POTW are subject to the provisions in this ERP. The Safety-Service Director and Waste Water Superintendent consistently administer and implement all the elements of this ERP. The ERP does not preclude the Safety-Service Director from taking any, all or any combination of actions against any non-compliant User.
(b) Responsibilities.
(1) Waste Water Superintendent is responsible for the day to day implementation and enforcement of the industrial pretreatment program and the ERP. The Waste Water Superintendent's enforcement responsibilities include:
A. Notices of Violation (NOV)
B. Informal meetings
C. Reimbursement of City expenses
D. Administrative Fines
E. Show Cause Hearings
(2) The Safety-Service Director is responsible to consult and monitor the Waste Water Superintendent's actions and initiate the following actions upon the recommendation of the Waste Water Superintendent:
A. Compliance Orders
B. Cease and Desist Orders
C. Termination of Service
D. Judicial Remedies
(2) City Law Director will provide legal consultation as requested by the Safety-Service Director on actions taken under this part and will take the lead on all referrals for civil litigation or POTW initiated criminal investigations.
(c) Identification and Investigation of Non-Compliance.
(1) Industrial Waste Survey / User Inventory.
A. The Waste Water Superintendent shall conduct an Industrial Waste Survey to determine the Industrial Users that discharge non-domestic wastewater to the POTW. The Waste Water Superintendent uses this survey information to maintain an inventory of all Industrial Users. This inventory details each Industrial User, where it is located, the nature of the wastes being discharged, and whether or not they are a Significant Industrial User (SIU).
(2) Industrial User Inspections and Monitoring.
A. The Waste Water Superintendent prepares an annual schedule for inspecting and monitoring Industrial Users. All SIUs must be inspected and their effluent monitored at least once per year. Other Industrial Users are inspected and/or monitored as the need is determined by the Waste Water Superintendent. Data collected during inspections and monitoring is used to verify the Industrial User's compliance status and help determine any need for enforcement response.
B. Industrial User inspections can be either scheduled or unscheduled. Scheduled inspections may be used when specific information is needed from specific facility personnel. However, scheduled inspections can cause interruptions in the facility's normal operations. Therefore, the Waste Water Superintendent must determine when unscheduled inspections may be needed to provide a more accurate reflection of an Industrial User's compliance status. Inspections are designed to develop a rapport with the facility and allow the POTW to assess the following:
1. Current compliance status
2. Completeness and accuracy of the facility's recordkeeping
3. Operation and maintenance of the facility's pretreatment system
4. Adequacy of the facility's self-monitoring and reporting requirements
5. Adequacy of imposed limits on pollutants of concern
6. Potential for spills and slug loadings
7. Facility's slug control plan or their need to develop one
8. Any non-compliances requiring resolution
9. Facility data to be used in support of enforcement actions
C. Monitoring, or effluent sampling, can be either scheduled or unscheduled. Just as with inspections, it is the responsibility of the Waste Water Superintendent to determine the type of sampling that will provide the most accurate information about an Industrial User at that particular monitoring time. During annual sampling, all SIUs must be monitored for all parameters that are listed in their discharge permit. Additional samplings may be conducted if the Safety-Service Director and Waste Water Superintendent agree it is necessary to more closely monitor a particular Industrial User. All sampling and monitoring analyses must be performed in accordance with 40 CFR 136.
(3) Compliance Report Review.
A. All reports submitted by Industrial Users are carefully reviewed for timeliness, completeness, and accuracy. This review process includes, but is not limited to: evaluation of compliance with due dates, analytical requirements, monitoring frequency, meeting effluent standards, and signatory/certification requirements.
B. All violations are clearly documented and addressed as described in the Enforcement Response Guide in subsection (g).
(d) Description of Enforcement Actions.
(1) Informal Notice.
A. Verbal Warning:
Whenever the POTW finds that any User has violated or is violating the Sewer Use Ordinance(SUO), a verbal warning may be issued. This is an immediate method of notification for the User. A verbal notification is issued either by telephone or in person and is for a first time or isolated incident of non-compliance, or as the first step leading to an escalated enforcement action. All verbal notifications related to enforcement should be documented in writing and placed in the User's file.
B. Written Warning:
A warning letter may be issued under the same circumstances of a verbal warning. It can be used as a follow-up to a verbal warning, or in lieu of a verbal warning. A copy of the letter is then placed in the User's file.
C. Informal Meeting:
An informal meeting may be convened by the Waste Water Superintendent to gather information from a User concerning a non-compliance, discuss steps to eliminate the non-compliance, and to determine the commitment of the User towards a resolution. All informal meetings are documented and a copy placed in the User's file.
(2) Notice of Violation.
A. Whenever the POTW finds that any User has violated or is violating the SUO, or a wastewater permit or order issued hereunder, the Waste Water Superintendent may issue the User a written Notice of Violation (NOV). This is usually issued for a second or recurring violation and is the second step in an escalated enforcement action.
B. Within 10 days of the receipt date of the NOV, 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 Waste Water Superintendent. Submission of this plan in no way relieves the User of liability or possible administrative fines for this violations or any others occurring before or after receipt of the NOV.
(3) Administrative Fines.
A. Administrative fines are a punitive monetary charge assessed to any User to recover the economic benefit of noncompliance and to deter future violations.
B. Notwithstanding any other part of the SUO, any User who is found to have violated any provision of the SUO, or permits and orders issued thereunder, may be fined in accordance with Section 925.50.
C. Each day on which a noncompliance occurs or continues shall be deemed a separate and distinct violation. Such assessments may be added to the user's next scheduled sewer service charge and the Waste Water Superintendent shall have such other collection remedies as he has to collect other service charges.
D. When assessing an administrative fine, the Waste Water Superintendent will consider the following factors:
1. Type and severity of the violation
2. The number of violations cited
3. Duration of the noncompliance
4. Impact of the violation on the receiving water, sludge quality and operation of the POTW
5. Whether the violation threatened public health
6. Any economic benefit or savings gained by the User due to the noncompliance
7. The compliance history of the User
8. Whether the User is making a good faith effort to comply
9. Unpaid charges, fines, and penalties may constitute a lien against the individual User's property. Users desiring to dispute such fines must file a request for the Waste Water Superintendent to reconsider the fine within 10 days of being notified of the fine. Where the Waste Water Superintendent believes a request has merit, he shall convene a hearing on the matter within 15 days of receiving the request from the User.
(4) Administrative Orders. A User who continues to violate the SUO, or a wastewater permit, or order issued hereunder, is subject to Administrative Orders that are issued by the Safety-Service Director. This level of enforcement is also utilized to address a User in Significant Noncompliance or to address an immediate threat to the health or welfare of persons, the POTW, or the environment. These enforcement actions direct the User to undertake and/or cease specified activities by specified deadlines in order to resolve the violations. Terms of these orders may be negotiated with the User, at the discretion of the Safety-Service Director.
A. Show Cause Hearing:
This is a formal meeting to show cause why an escalated enforcement action should not be taken. The notice of this meeting shall be served personally or by registered or certified mail (return receipt requested) at least 10 days prior to the hearing. Such notice may be served on any principal executive, general partner or corporate officer. Whether or not a duly notified User appears as noticed, enforcement action may be pursued as appropriate.
B. Compliance Orders and Schedule:
This is an order to the User responsible for the discharge, directing that, following a specified time period, sewer service shall be discontinued unless adequate treatment facilities, devices, or other related appurtenances have been installed and are properly operated, and compliance is achieved. Orders may also contain such other requirements as might be reasonably necessary and appropriate to address the noncompliance, including the installation of pretreatment technology, additional self-monitoring, and management practices.
1. The Compliance Schedule shall contain increments of progress in the form of dates leading to the User's ability to meet the applicable Pretreatment Standards. If the Compliance Schedule includes construction and operation of additional pretreatment, the User shall include dates for the commencement and completion of major construction events.
2. No increment referred to in paragraph (1) shall exceed 9 months.
3. Not later than 14 days following each date in the Compliance Schedule and the final date for compliance, the User shall submit a progress report to the Safety-Service Director. This report shall include, as a minimum, whether or not it complied with the increment of progress to be met on such date and, if not, the date on which it expects to comply with this increment of progress, the reason for delay, and the steps being taken by the User to return the construction to the schedule established. In no event shall more than nine months elapse between such progress reports to the Safety-Service Director.
C. Cease and Desist Order:
When the Safety-Service Director finds that a User has violated or continues to violate the SUO, or any permit, or order issued hereunder, he may issue an order to cease and desist all illegal discharges, as well as all authorized discharges immediately.
1. The Safety-Service Director may suspended the wastewater treatment service of a User whenever such suspension is necessary in order to stop an actual or threatened discharge that is presenting or causing an imminent or substantial endangerment to the health or welfare of persons, the POTW, or the environment.
2. Any User notified of a suspension of the wastewater treatment service shall immediately stop or eliminate its discharge. In the event of a User's failure to immediately comply voluntarily with the suspension order, the Safety-Service Director may contact the City Council, which on behalf of the City, may petition any court of proper jurisdiction for the issuance of a preliminary or permanent injunction, as may be appropriate, in restraining the continuance of such a discharge.
3. In an emergency, the order to cease and desist may be given by telephone.
4. In non-emergency situations, the cease and desist order may be used to suspend non-domestic discharge or permanently revoke SIU permits.
5. A cease and desist order requires the User to take any such appropriate remedial or preventive action as may be needed to properly address a continuing or threatened violation, including halting operations to terminate the wastewater discharge.
6. A User which is responsible, in whole or in part, for 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 Safety-Service Director within 10 days of the cease and desist order being issued.
7. The Safety-Service Director may allow the User to recommence its non-domestic discharge when the endangerment has passed, unless termination of service proceedings set forth in subsection (d)(4)D., have been initiated against the User.
D. Termination of Service:
Termination of Service is a revocation of the User's privilege to discharge non-domestic wastewater into the sewer system. This may be accomplished by physical separation of the User's connection to the collection system, through the issuance of a Cease and Desist order as set forth in subsection (d)(4)C. hereof, or the Safety-Service Director may have the User's incoming water service shut off.
1. A User who continues to violate conditions of the SUO, an SIU Permit, a previously issued order, or any applicable State or Federal law, or the following conditions, is subject to Termination of Service:
a. Repeated failure to accurately report the wastewater constituents and characteristics of its discharge;
b. Repeated failure to report significant changes in operations or wastewater constituents and characteristics;
c. Repeated refusal of reasonable access to the user's premises for the purpose of inspection, monitoring, or sampling.
2. Noncompliant Users shall be notified by the Safety-Service Director of the proposed termination of their SIU Permit, or privilege to discharge to the sewer system, and be offered an opportunity to appeal.
E. Judicial Remedies:
If any user discharges sewage, industrial wastes, or other wastes into the wastewater disposal system contrary to the provisions of the SUO or any order or permit issued hereunder, the Safety-Service Director, through the City Law Director, may commence an action for appropriate legal and/or equitable relief.
1. Injunctive Relief. Whenever a User has violated or continues to violate the provisions of the SUO or permit or order issued hereunder, the Safety-Service Director, through counsel may petition the Court for the issuance of a preliminary or permanent injunction or both (as may be appropriate) which restrains or compels the activities on the part of the User.
2. Civil Litigation.
a. Any User who has violated or continues to violate the SUO or any order or permit issued hereunder, shall be liable to the POTW for a civil penalty of not more than $10,000 but at least $1,000, plus actual damages incurred by the POTW per violation per day for as long as the violation continues. In addition to the above described penalty and damages, the POTW may recover reasonable attorney's fees, court costs, and other expenses associated with the enforcement activities, including sampling, monitoring and analysis expenses.
b. The Safety-Service Director shall petition the Court to impose, assess, and recover such sums. In determining amount of 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, any economic benefit gained through the User's violation, corrective actions by the User, the compliance history of the User, and any other factor as justice requires.
3. Criminal Prosecution.
Violations:
a. Any User who willfully or negligently violates any provision of the SUO or any orders or permits issued hereunder shall, upon conviction, be guilty of a misdemeanor, punishable by a fine not to exceed $1,000.00 per violation per day or imprisonment for not more than one year or both.
b. In the event of a second conviction, the user shall be punishable by a fine not to exceed $3,000.00 per violation per day, or imprisonment for not more than 3 years, or both.
c. 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 the SUO, or SIU Permit, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required under the SUO shall, upon conviction, be punished by a fine of not more than $1,000.00 per violation per day or imprisonment for not more than one year or both.
(e) Administrative Appeals.
(1) Any User affected by any decision, action or determination including cease and desist orders, made by the Safety-Service Director interpreting or implementing the provisions of the SUO, any permit issued herein or any action, decision, or regulation of the City Council adopted pursuant hereto, may file with the City Council a written request for review and reconsideration within ten (10) days of such a decision, action or determination setting forth in detail the facts supporting the User's request for reconsideration.
(2) The appeal shall, if reasonably possible, be heard by the City Council within thirty (30) days from the date of filing. The Safety-Service Director's decision, action, or determination shall remain in effect during such period of reconsideration, unless the City Council otherwise determines on request of the User.
(f) Annual Publication of Users in Significant Noncompliance. The Safety-Service Director shall publish, at least annually in the local daily newspaper, a description of those Users which are found to be in significant non-compliance, as defined in the SUO, with any provisions of the SUO or any permit or order issued hereunder during the period since the previous publication.
(g) Enforcement Response Guide. The Enforcement Response Guide (ERG) designates several enforcement options for each type of noncompliance. The intent of the ERG table in subsection (h), is to provide appropriate enforcement responses based on the circumstances of the Industrial User. The ERG also provides consistent enforcement responses for user violations under similar situations. Factors that will be evaluated when determining the appropriate response are:
(1) Good Faith of the Industrial User
(2) Industrial User's Compliance History
(3) The effect of the violation on the environment, public health and/or the POTW.
(4) Previous success of enforcement actions against the Industrial User
A. Violations resulting in Significant Noncompliance will be addressed with formal Administrative Orders as described subsection (d)(4) hereof regardless of the response that is indicated in the ERG. In addition, the Waste Water Superintendent must contact the Ohio Environmental Protection Agency (OEPA) within 10 days of becoming aware of any Indirect Discharger in Significant Noncompliance.
B. Escalating enforcement response will be used for recurring violations, or failure to achieve compliance following previous informal or formal enforcement procedures.
C. Violations that fall under more than one category shall be addressed through the more severe enforcement response.
D. Enforcement Response Timelines
1. Violations which threaten public health, the environment, or the POTW are considered emergencies and will receive immediate response to terminate the violation, such as a Cease and Desist order as described subsection (g)(4)C.
2. All violations will be identified and documented within five days of receiving the information of the noncompliance.
3. Initial enforcement response (informal or formal) will take place within 15 days of identifying a violation.
4. Follow-up enforcement response actions for recurring violations will be taken within 60 days of the initial enforcement response.
5. Violations resulting in Significant Noncompliance will be addressed through formal enforcement within 30 days of identifying Significant Noncompliance.
E. The ERG Table lists various categories and types of nonconformance. Within each example of violation it also gives possible circumstances that could be expected during that nonconformance. Each circumstance then has different levels of enforcement actions available to be used, dependent upon the seriousness of the nonconformance.
1. Enforcement Options.
2. The detailed descriptions of the Enforcement Options are given in subsection (d) hereof. The level of enforcement applied will be dependent upon the number and severity of the nonconformance, as well as the factors listed in subsection (g) of this ERP.
(h) ERG Table.
TYPE OF NONCOMPLIANCE | CIRCUMSTANCES | ENFORCEMENT OPTIONS | |
UNAUTHORIZED DISCHARGES | |||
Discharge Without a Permit | Industrial User (IU) unaware of requirement; No harm to POTW or environment | • | Notice of Violation (NOV); Send Discharge Application Form |
Industrial User (IU) unaware of requirement; Harm caused to POTW or environment | • • • | NOV and fine; Send Discharge Application Form Administrative Orders (AO) Termination of Service | |
Failure to Submit Permit Application or Reapply for Permit | IU has not submitted application within 15 days of due date | • • | Verbal/Written Warning NOV |
IU has not submitted application after 30 days following notice by the POTW | • • | NOV with or without fine AO with fine | |
Unauthorized Discharge Through Manhole, Septic Only Receiving Station, Car Wash, etc. | No harm to POTW or environment | • • • | Verbal/Written Warning NOV with or without fine AO with fine |
Harm to POTW or environment | • • • • • | NOV with fine AO Injunction/Civil Action Criminal Investigation Termination of Service | |
Permitted Industrial User Discharging Waste not Authorized by Permit | No harm to POTW or environment | • • • | Verbal/Written Warning NOV with or without fine AO with fine |
TYPE OF NONCOMPLIANCE | CIRCUMSTANCES | ENFORCEMENT OPTIONS | |
UNAUTHORIZED DISCHARGES | |||
Harm to POTW or environment | • • • • • | NOV with fine AO Injunctive/Civil Action Termination of Service Criminal Investigation | |
DISCHARGE LIMIT VIOLATION | |||
Exceedence of Local or Federal Discharge Limitation or Permit Prohibition | No harm to POTW or environment; First Offense | • • | Verbal/Written Warning Informal Meeting |
No Harm to POTW or environment; Recurrent Offense | • • • | NOV with or without fine AO Injunction/Civil Action | |
Harm to POTW or environment Any Occurrence | • • • • • | NOV with fine AO Injunction/Civil Action Termination of Service Criminal Investigation | |
Slug Discharge or Bypass; Discharge reported as Required | No harm to POTW or environment; First Offense | • • | NOV with or without fine AO with fine |
Harm to POTW or environment | • • • • | NOV with fine AO Injunction/Civil Action Termination of Service | |
Slug Discharge or Bypass; Failure to Report Discharge as Required | Any Occurrence | • • • • • | NOV with fine AO Injunction/Civil Action Termination of Service Criminal Investigation |
REPORTING VIOLATIONS | |||
Report is Improperly Signed or Certified | Isolated Incident | • | Verbal/Written Warning |
Recurrent Offense | • • | NOV with or without fine AO with fine | |
Report is Incomplete or Inaccurate | Isolated Incident | • • | Verbal/Written Warning Informal Meeting |
Recurrent Offense | • • • | NOV with or without fine AO with fine Injunction/Civil Action | |
TYPE OF NONCOMPLIANCE | CIRCUMSTANCES | ENFORCEMENT OPTIONS | |
REPORTING VIOLATIONS (Cont.) | |||
Report is Late | 1-day to 14-days late | • | Verbal/Written Warning |
More than 30 days late | • • | NOV with or without fine AO with fine | |
Recurrent Offense | • • • | NOV with fine AO Injunction/Civil Action | |
Falsification of Information or Data | Any Occurrence | • • • • | AO with fine Injunction/Civil Action Termination of Service Criminal Investigation |
MONITORING AND SAMPLING VIOLATIONS | |||
Failure to Monitor for All Required Parameters | First Offense | • • • | Verbal/Written Warning Informal Meeting NOV with or without fine |
Recurrent Offense | • • • | NOV with fine AO Injunction/Civil Action | |
Improper Sampling Handling/Analytical Procedures | First Offense | • • • | Verbal/Written Warning Informal Meeting NOV with or without fine |
Recurrent Offense | • • • | NOV with fine AO Injunction/Civil Action | |
COMPLIANCE SCHEDULE VIOLATIONS | |||
Missed Interim Milestone | Reasonable cause for delay; Will not affect final compliance deadline | • • | Verbal/Written Warning Informal Meeting |
Reasonable cause for delay; However, will affect final compliance deadline | • • • | Informal meeting NOV with or without fine Revise AO | |
Unacceptable reason for missed deadline | • • | NOV with fine Revise AO | |
TYPE OF NONCOMPLIANCE | CIRCUMSTANCES | ENFORCEMENT OPTIONS | |
COMPLIANCE SCHEDULE VIOLATIONS (Cont.) | |||
Missed Milestone Reporting | Late 1-day to 14-days | • • | Verbal/Written Warning NOV with or without fine |
Late more than 30-days | • • | NOV with fine Injunction/Civil Action | |
Missed Final Compliance Schedule Deadline | Failure to comply with AO | • • • | Revise AO with fine Injunction/Civil Action Termination of Service |
VIOLATIONS DURING A SITE INSPECTION | |||
Entry Denial | First Offense - Industrial User unaware of entry requirement; No suspicion of a violation | • • • | Explanation of Entry Requirements Verbal/Written Warning Injunction; Return to site |
Recurrent Offense, or any occurrence when there is a suspicion of a violation | • • • • | Injunction; Return to site NOV with fine Termination of Service Contact OEPA | |
Incomplete or Missing Records | First Offense | • • | NOV with or without fine AO with fine |
Recurrent Offense | • • | NOV with fine AO | |
Any Violation Listed in Previous Parts | Violation not self-reported to POTW | • • • • • | NOV with fine AO Injunction/Civil Action Termination of Service Criminal Investigation |
VIOLATIONS RESULTING IN SIGNIFICANT NONCOMPLIANCE | |||
Any Violation Listed in Previous Parts | Any Violation that results in Significant Noncompliance as defined in the SUO | • • • • • | AO with or without fine Contact OEPA Injunction/Civil Action Termination of Service Criminal Investigation |
(Ord. 12-11. Passed 3-14-11.)