(a) Administrative remedies.
(1) Notification of violation. Whenever the director finds that any person has violated or is violating this division, a wastewater discharge permit, or any prohibition, limitation or requirement contained therein, the director may serve upon such person a written notice stating the nature of the violation ("notice of violation"). Within 30 days of the date of the notice of violation, a plan for the satisfactory correction of the violation shall be submitted to the town by the person. Submission of this plan does not relieve the person of liability for any violations occurring before or after receipt of the notice of violation.
(2) Consent orders. The director is hereby authorized and empowered to enter into consent orders, assurances of voluntary compliance, or other similar agreements with any person responsible for violation of, or noncompliance with, this division or a permit issued hereunder (hereafter referred to as noncompliance). Such orders shall specify action to be taken by the person to correct the noncompliance within a time period that shall be specified in the order. Consent orders shall have the same force and effect as an administrative order issued pursuant to subsection 36-179(a)(4) below.
(3) Show cause hearing. The director may order any user who causes or is responsible for an unauthorized discharge, who has violated this division or is in noncompliance with a wastewater discharge permit, to show cause why a proposed enforcement action should not be taken. In the event the director determines that a show cause order should be issued, a notice that substantially notifies the user of the specific time and place for the hearing, the proposed enforcement action, the reasons for such action, and a request that the user show cause why this proposed enforcement action should not be taken shall be issued by the director ("show cause hearing notice"). The show cause hearing notice shall be served on the user at least ten days before the hearing. Service may be made on any agent or officer of a corporation. The director shall review the evidence presented at the hearing and shall determine whether the proposed enforcement action is appropriate. A show cause hearing under this section is not a prerequisite to the assessment of a civil penalty under section 36-179(b), nor is any action or inaction taken by the director under this section subject to an administrative appeal under section 36-188.
(4) Administrative orders. When the director, or his duly authorized representative, finds that a user has violated or continues to violate this division, the prohibitions or discharge limitations of this division, or those contained in any wastewater discharge permit or order issued hereunder, the director, or his duly authorized representative, may issue an order to cease and desist, and direct those persons in noncompliance to do any of the following:
a. Immediately comply with all requirements;
b. Comply in accordance with a compliance time schedule set forth in the order;
c. Take appropriate remedial or preventative action in the event of a continuing or threatened violation;
d. Disconnect from the POTW, or cease discharging into the POTW, unless adequate treatment facilities, devices or other related appurtenances are installed and properly operated within a specified time period.
(5) Emergency suspensions. The director, or his duly authorized representative, may suspend wastewater treatment service and/or the wastewater discharge permit when the director believes suspension is necessary 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 or the environment, interferes with the POTW, or causes the POTW to violate any condition of its NPDES permit. Any user notified of a suspension of their wastewater treatment service and/or their wastewater discharge permit shall immediately stop or eliminate the discharge. A hearing shall be held within 15 days of the notice of suspension to determine whether the suspension may be lifted or the user's wastewater discharge permit terminated. In the event of a failure of the person to comply voluntarily with the suspension order, the director shall take such steps as deemed necessary, including immediate severance of the sewer connection, to prevent or minimize damage to the POTW system or endangerment to any person or property. The director shall reinstate the wastewater discharge permit and the wastewater treatment service upon proof of the elimination of the noncompliant discharge and the payment of all user charges, surcharges, penalties and other costs assessed hereunder. The user shall submit a detailed written statement describing the causes of the harmful contribution and the measures taken to prevent any future occurrence to the director prior to the date of the above-described hearing.
(6) Termination of permit or permission to discharge. Any user who violates any condition of this division, or applicable state or federal regulations, is subject to having its permit terminated. The director may revoke a wastewater discharge permit or permission to discharge for good cause, including, but not limited to, the following reasons:
a. Failure to factually and accurately report the wastewater constituents and characteristics of the user's discharge;
b. Failure to report significant changes in operations, or wastewater constituents and characteristics;
c. Refusal to allow reasonable access to the user's premises to the director, approval authority, or EPA for the purpose of inspection or monitoring; or
d. Violation of conditions of the wastewater discharge permit or permission to discharge, conditions of this ordinance, or any applicable state or federal regulations.
Noncompliant users shall be notified of the proposed termination of their wastewater discharge permit and will be offered an opportunity to show cause under this subsection (a) why the proposed action should not be taken.
(b) Civil penalties. Any user who is found to have failed to comply with any provision of this division, or the orders, rules, regulations and permits issued hereunder, may be assessed a civil penalty by the director up to $25,000.00 per day per violation. Penalties between $10,000.00 and $25,000.00 per day per violation may be assessed against a violator only if:
i. For any class of violation, only if a civil penalty has been imposed against the violator within the five years preceding the violation, or
ii. In the case of failure to file, submit, or make available, as the case may be, any documents, data, or reports required by this ordinance, or the orders, rules, regulations and permits issued hereunder, only if the POTW director determines that the violation was intentional and a civil penalty has been imposed against the violator with the five years preceding the violation.
Such assessments may be added to the user's next scheduled sewer service charges and the POTW, in addition to all other remedies, shall have such remedies for the collection of such assessments as it has for collection of other service charges.
(c) Penalty determination. In determining the amount of the civil penalty, the director shall consider the following:
(1) The degree and extent of the harm to natural resources, the public health, or to public or private property resulting from the violation;
(2) The duration and gravity of the violation;
(3) The effect on ground or surface water quantity or quality or on air quality;
(4) The cost of rectifying the damage;
(5) The amount of money the user saved by noncompliance;
(6) Whether the violation was committed willfully or intentionally;
(7) The prior record of the violator in complying or failing to comply with the pretreatment program;
(8) Other fines and penalties assessed to user for previous violations; and
(9) The costs of enforcement to the town.
(d) Other available remedies. Remedies, in addition to those previously mentioned in this division, are available to the director who may use any single one or combination thereof against a noncompliant person or user. Additional available remedies include, but are not limited to:
(1) Criminal violations. The district attorney for the 10th Judicial District (the judicial district encompassing the county) may, at the request of the town, prosecute noncompliant persons and users who violate the provisions of G.S. 143-215.6B.
(2) Injunctive relief. Whenever a user is in violation of the provisions of this division or an order or permit issued hereunder, the director, through the town attorney, may petition the county superior court for the issuance of a restraining order or a preliminary and permanent injunction, which restrains or compels the activities in question.
(3) Water supply severance. Whenever a user or person is in violation of the provisions of this division or an order or permit issued hereunder, water service to the user or person may be severed and service will only recommence, at the user's or person's expense, after it has satisfactorily demonstrated ability to comply.
(4) Public nuisances. Any violation of the prohibitions or discharge limitations of this division, or of a permit or order issued hereunder, is hereby declared a public nuisance and shall be corrected or abated as directed by the director. Any person(s) creating a public nuisance shall be subject to the provisions of the Code of Ordinances of the Town of Cary governing such nuisances, including reimbursing the town for any costs incurred in removing, abating or remedying such nuisance.
(5) Remedies nonexclusive. The remedies provided for in this division are not exclusive. The director may take any, all, or any combination of these actions against a noncompliant user or other person. Enforcement of pretreatment violations will generally be in accordance with the town's enforcement response plan; however, the director may take other action against any user or other person when the circumstances warrant. Further, the director is empowered to take more than one enforcement action against any noncompliant user of the POTW and sewer collection system.
(Code 1982, § 19-97; Ord. No. 94-036, 12-8-1994; Ord. No. 02-011, 4-11-2002; Ord. No. 06-004, 3-9-2006; Ord. No. 2007-20, 12-13-2007; Ord. No. 2011-Code-09, 12-15-2011)