23-3.09   Enforcement and Abatement.
   a.   General. BGMU through the General Manager or designee, to insure compliance with this Subchapter, and as permitted through 40 CFR Subchapter N, 401 through 471 and 401 KAR 5:057 may take the following enforcement steps against Significant Industrial Users in noncompliance with this Subchapter. The remedies available to the General Manager include injunctive relief, civil and criminal penalties, immediate discontinuance of discharges and/or water and/or electric service and the publishing of the list of significant violators annually. The enforcement authority shall be vested in the General Manager or designee. This designee shall be the duly authorized employee as authorized under 40 CFR 403.12 (m).
      All violations of requirements of this Subchapter must be reviewed and responded to by the General Manager or representative. In general, the General Manager shall notify the Significant Industrial User when a violation occurs. For all violations, the General Manager shall receive an explanation and, as appropriate, a plan from the Significant Industrial User to correct the violation within a specific time period. If the violation(s) persist or the explanation and/or plan are not adequate, the General Manager’s response shall be more formal and commitments or schedules, as appropriate, for compliance will be established in an enforceable document. The enforcement response selected will be related to the seriousness of the violation. Enforcement responses will be escalated if compliance is not achieved expeditiously after the initial action. A significant violation will require a formal enforcement action. The full scale of enforcement actions will be detailed in BGMU’s Pretreatment Program Enforcement Response Plan.
   b.   Enforcement Action.
      1.   Informal Notice. These actions include statements made to the Significant Industrial User during sampling and/or inspection visits, telephone calls to the appropriate company official, informal meetings, warning or reminder letters. These informal notices shall be used for minor violations.
      2.   Formal Notice. These actions include the following:
         (a)   Notice of Violation. Any person found to be violating any provision of this Subchapter, wastewater discharge permit or any order issued hereunder shall be served by BGMU’s General Manager with a written notice stating the nature of the violation.
         (b)   Administrative Order/Fines. Any person who, after receiving a Notice of Violation, and continue to discharge in violation of this Chapter or of the pretreatment standard or requirements or is determined to be a chronic or persistent violator, shall be ordered to appear before the General Manager. At said appearance, a compliance schedule will be given to the violating user and an administrative fine assessed. The fine shall be determined on a case-by-case basis which shall consider the type, severity, duration and number of violations, severity of impact on the POTW, impact on human health, the Significant Industrial User’s economic benefit from the violation, past history of the Significant Industrial User, and good-faith efforts made by the Significant Industrial User. The fine shall be a non-arbitrary but appropriate amount as defined in Section 23-3.10 in this Subchapter.
   The administrative order may take any of the following four (4) forms:
      (1)   Consent Order. The General Manager is hereby empowered to enter into Consent Orders, assurances of voluntary compliance, or other similar documents establishing an agreement with the Significant Industrial User responsible for the noncompliance. Such orders will include specific action to be taken by the Significant Industrial User to correct the noncompliance within a time period also specified in the order. Consent Orders shall have the same force and effect as all other administrative orders.
      (2)   Compliance Order. When the General Manager finds that a Significant Industrial User has violated or continues to violate this Chapter or permit or order issued hereunder, he may issue an order to the Significant Industrial User responsible for the violation directing that following a specified time period, sewer service shall be discontinued unless adequate treatment facilities, devices and other related appurtenances have been installed and are properly operated. 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.
      (3)   Cease and Desist Order. When the General Manager finds that a Significant Industrial User has violated or continues to violate this Chapter or any permit or order issued hereunder, the General Manager may issue an order to cease and desist all such violations to the Significant Industrial User and direct those persons in noncompliance to:
         (i)   Comply forthwith;
         (ii)   Take such appropriate remedial or preventative action as may be needed to properly address a continuing or threatened violation, including halting operations and terminating the discharge.
      (4)   Show Cause Hearing. The General Manager may issue to any Significant Industrial User who causes or contributes to violations of this Chapter, discharge permit or order issued hereunder, an order to appear and show cause why more severe enforcement action should not be taken. A notice shall be served on the Significant Industrial User specifying the time and place of the hearing to be held by the General Manager regarding the violation, the reasons why the action is to be taken, the proposed enforcement action and directing the Significant Industrial User to show cause before the General Manager why more severe enforcement action should not be taken. The notice of the hearing shall be served personally or by registered or certified mail (return receipt requested) at least ten (10) days before the hearing. Service may be made on any agent or officer of the facility. Whether or not a duly notified Significant Industrial User or its representative appears, immediate enforcement action may be pursued. BGMU itself may conduct the hearing and take evidence or may designate a representative to:
         (i)   Issue in the name of BGMU notices of hearings requesting the attendance and testimony of witnesses and the production of evidence relevant to any matter involved in such hearings; and,
         (ii)   Take the evidence.
   c.   Revocation of Permit. Any Significant Industrial User violating any of the provisions of this Chapter or discharge permit or other order issued hereunder shall be subject to termination of its authority to discharge sewage into the public sewer system. Such termination shall be immediate if necessary for the protection of the POTW. Said Significant Industrial User may also have water service terminated. Any Significant Industrial User who violated any condition(s) of this Chapter, discharge permit, order or applicable State or Federal regulation is subject to having its Industrial User Discharge Permit revoked in accordance with the procedures of this Chapter. Violations resulting in immediate permit revocation shall include, but not be limited to, the following:
      1.   Failure of Significant Industrial User to factually report the wastewater constituents and characteristics of its discharge;
      2.   Failure of the Significant Industrial User to report significant changes in operations, processes, wastewater constituents and characteristics;
      3.   Refusal of reasonable access to the Significant Industrial User’s premises for the purposes of inspection and sampling; and,
      4.   Violation(s) of any condition of the Industrial User Discharge Permit.
   d.   Liability. Any Significant Industrial User violating any of the provisions of this Chapter, discharge permit or other order issued here-under shall become liable to BGMU for any expense, loss or damage occasioned by BGMU by reason of such violation. This civil liability is as provided by State and Federal regulations.
   e.   Misrepresentations and/or Falsifying of Documents. Any Significant Industrial User who knowingly and/or negligently makes any false statements, representations or certification of any application, record, report, plan or other document filed or required pursuant to this Subchapter or Industrial User Discharge Permit or who falsifies, tampers with or knowingly and/or negligently renders inaccurate any monitoring device or method required under this Subchapter, shall be guilty of a misdemeanor and shall be fined at least one thousand ($1,000.00) dollars per violation or imprisoned for not more than twelve (12) months or both.
   f.   Destruction of POTW and Legal Action. No person(s) shall maliciously, willfully or negligently break, damage, destroy, uncover, deface or tamper with any structure, appurtenance or equipment which is part of the POTW system. Any person(s) violating this provision shall be subject to immediate arrest under charge of disorderly conduct. It shall be noted that the Clean Water Act does not require proof of specific intent to obtain conviction.
   g.   Judicial Action. If any person(s) discharges sewage, industrial wastes or other wastes into BGMU’s wastewater disposal system contrary to the provisions of this Chapter, discharge permit, any order of the General Manager or BGMU, or Federal or State pretreatment requirements, BGMU may commence an action for appropriate legal and/or equitable relief in the appropriate court of this jurisdiction. In addition to the penalties provided herein, BGMU may recover reasonable attorney’s fees, court costs, court reporter’s fees and other expenses of litigation by appropriate suit at law against the person(s) found to have violated this Subchapter or the orders, rules, regulations and permits issued hereunder.
   h.   Termination of Service. The General Manager may suspend the wastewater treatment service and/or wastewater discharge permit of a Significant Industrial User whenever such suspension is necessary in order to stop an actual or threatened discharge presenting or causing an imminent or substantial endangerment to the health or welfare of the public, the POTW system or the environment. Any Significant Industrial User notified of suspension of the wastewater treatment service and/or the discharge permit shall immediately stop or eliminate its contribution. In the event of a Significant Industrial User’s failure to immediately comply voluntarily with the suspension order, the General Manager shall take such steps as deemed necessary including immediate severance of the sewer connection, to prevent or minimize damage to the POTW, its receiving stream, or endanger-ment to any individuals. Any Significant Industrial User 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 General Manager.
   i.   Criminal Prosecution. Any Significant Industrial User who will-fully or negligently violates any provisions of this Subchapter, any orders or permits insured hereunder, or any other pretreat-ment requirements shall be guilty of a misdemeanor and be, upon conviction, fined at least one thousand ($1,000.00) dollars per violation per day or imprisoned for not more than one (1) year or both.
   j.   Public Nuisance. The discharge of wastewater in any manner in violation of this Subchapter is hereby declared a public nuisance and shall be corrected or abated as provided herein.
   k.   Violations Not Involving Imminent Danger.
      1.   Notification to Significant Industrial User of actual or threatened violation. Whenever the General Manager determines or has reasonable cause to believe that a discharge of wastewater has occurred, or is about to occur, in violation of the provisions of this Subchapter, or any other applicable law or regulation, he shall notify the Significant Industrial User of such violation; however, failure of the General Manager to provide notice to the Significant Industrial User shall not in any way relieve the Significant Industrial User from any consequences of a wrongful or illegal discharge. The notice shall state:
         (a)   The nature of the actual or threatened violation of this Section.
         (b)   The time within which the Significant Industrial User must take appropriate measures to prevent any threatened violation, or the recurrence of any actual violations, and to furnish evidence to the General Manager that such corrective action has been taken.
      2.   Proceedings in the event of failure of Significant Industrial User to furnish satisfactory evidence of corrective action within time prescribed by notice. In the event the Significant Industrial User fails to furnish satisfactory evidence to the General Manager that corrective action has been taken within the time prescribed by the notice (or any extensions of time granted by the General Manager), the General Manager may:
         (a)   Suspend the water, sewer and/or electric service if this action will serve to prevent any further violations by the Significant Industrial User.
         (b)   Sever sewer connection(s), or take such other steps as may be required in order to insure that no prohibited wastewater is introduced into the public sanitary sewer.
   l.   Violations Involving Imminent Danger.
      1.   The General Manager may suspend the water and/or electric service when such suspension is necessary, in the opinion of the General Manager, in order to stop an actual or threatened discharge which presents or may present an imminent or substantial endangerment to the health or welfare of persons to the environment, causes interference to the wastewater system or causes BGMU to violate any condition of its NPDES Permit.
      2.    Any person notified of a suspension of water and/or electric service shall immediately stop or eliminate the discharge. In the event of a failure of the person to comply voluntarily with the suspension order, the General Manager shall take such steps as deemed necessary including immediate severance of the sewer connection to prevent or minimize damage to the wastewater system or endangerment to any individuals. The General Manager shall reinstate the water, sewer and/or electric service upon proof of the elimination of the noncomplying discharge. A detailed written statement submitted by the Significant Industrial User describing the causes of the harmful discharge and the measures taken to prevent any future occurrence shall be submitted to the General Manager within five (5) days of the date of occurrence.
   m.   Assessment of Damages to Significant Industrial Users. When a discharge of wastewater causes an obstruction, damage, or any other impairment to the wastewater system, the General Manager may assess a charge against the Significant Industrial User for the work required to clean or repair the facility and these charges will be billed directly to the Significant Industrial User when costs are final. The General Manager shall have such remedies for the collection of such costs as he has for the collection of sewer service charges.
   n.   Judicial Relief. In cases of violations of this Subchapter, BGMU shall have the right to seek injunctive relief and any other relief of a civil or criminal nature against the violators, which right shall be in addition to the right to take non-judicial action as set out in paragraphs b and c of the Section. In any judicial action of a civil nature, BGMU shall have the right to recover from the violator of this Subchapter any actual damages sustained, including the costs, if any, incurred by BGMU, in corrective or preventive action taken for the purpose of protecting the integrity of the wastewater system, reasonable attorney’s fees, court costs, court reporters’ fees and other expenses of litigation.
(Ord. BG80-63, S27-128, 7/15/80; Ord. BG86-60, 12/16/86; Ord. BG91-44, 9/3/91; Ord. BG95-45, 12/5/95; Ord. BG2001-5, 2/20/2001; Ord. BG2013-32, 9/17/2013; Ord. BG2014-11, 6/3/2014; Ord. BG2017-22, 6/6/2017)