(A) Emergency suspension of service and discharge permits. The city POTW may for good cause shown suspend the wastewater treatment service, the water supply service, electrical service, and/or the wastewater discharge permit of a discharger when it appears to the city POTW that an actual or threatened discharge presents or threatens:
(1) A violation of the NPDES permit;
(2) An imminent or substantial danger to the health or welfare of persons;
(3) An adverse impact to the environment;
(4) Interference with the operation of the POTW;
(5) Violation of any pretreatment limits imposed by the city pursuant to this article; or
(6) Violation of any wastewater discharge permit issued by the city pursuant to this article.
Any discharger notified of the suspension of the city POTW wastewater treatment service, the water supply service, the electrical service, the discharger’s wastewater permit, contract or waiver shall, within a period of time as determined by the approval authority, cease all discharges or be subject to utility cutoff or sewer blockage by the approval authority. If the discharger fails to comply voluntarily with the suspension order within the specified time, the city POTW shall notify the Michigan Department of Environmental Quality and commence judicial proceedings immediately thereafter to compel the discharger’s compliance with such order. The city POTW shall reinstate the wastewater discharge permit, contract or waiver or the wastewater treatment service and terminate judicial proceedings upon proof by the discharger of the elimination of the noncomplying discharge or conditions creating the threat as set forth in this subsection.
(B) Revocation of permit, contract or waiver. The city POTW may revoke the permit, contract or waiver of any discharger which fails to:
(1) Factually report the wastewater constituents and characteristics of its discharge;
(2) Report significant changes in wastewater constituents or characteristics;
(3) Refuses reasonable access to the discharger’s premises by representatives of the POTW or the Michigan Department of Environmental Quality for the purpose of inspection or monitoring; or
(4) Violates the condition of its permit, contract, waiver or this article or any final judicial order entered with respect thereto.
(C) Notice of violation. Upon determination by the POTW that a user has violated any provision of this article, an industrial discharge permit or order issued hereunder, or any other pretreatment standard or requirement, the POTW shall serve or cause to be served upon such discharger a written notice, either personally or by certified or registered mail, return receipt requested, stating the nature of the alleged violation.
(1) Unless otherwise specified by the NOV, the following provisions shall apply: within 30 days of the date of the NOV, the user shall submit to the POTW an explanation of the violation and a plan for the satisfactory correction and prevention thereof, to include specific required actions. Submission of the required plan shall not in any way relieve the user of liability for any violations occurring before or after the receipt of the notice of violation. The POTW shall approve or reject the user’s proposed plan after receipt thereof.
(2) Nothing in this section shall limit the authority of the city to take any action, including emergency actions or any other enforcement action, without first issuing a notice of violation.
(3) Failure to comply with any requirement of a notice of violation shall constitute a separate violation of this article.
(D) Orders. The POTW superintendent may issue an order to any user as determined by the superintendent to be appropriate under the circumstances, as provide by this section. Multiple orders may be issued simultaneously or in combination as a single order with respect to a single discharger. Notwithstanding any provision of this article to the contrary, the POTW superintendent may issue any type of order or orders as determined necessary by the superintendent to comply with the intent and purposes of this article or other applicable laws and regulations.
(1) Service. An order shall be served upon a user and shall contain the information as provided in § 68-194(E)(2) of this article. However, orders to immediately cease and desist discharge, or to terminate sewer services, or other emergency orders where delay might endanger human health, the environment or the POTW, may be oral and may be served by telephone to be followed within 5 days by written confirmation of the order by the POTW superintendent.
(2) Types of orders. The POTW superintendent may issue the following types of orders:
(a) Order to immediately cease and desist discharge. The POTW superintendent may issue an order to cease and desist from discharging any wastewater, pollutant, or discharge not in compliance with this article. The order shall have immediate effect if the actual or threatened discharge to the POTW presents, or may present, imminent or substantial endangerment to the health or welfare of persons, to the environment, or causes, or may cause, interference or pass through. The POTW superintendent shall implement whatever action is necessary to halt the illegal discharge. The user shall be assessed for any penalties, fines, charges, surcharges, expenses, or losses incurred due to the actual or threatened discharge or pollutants as provided by this article.
(b) Order to cease discharge within a certain time. The POTW superintendent may issue an order to cease and desist from discharging any wastewater, pollutant, or discharge not in compliance with this article by a certain time and date. The proposed time for remedial action shall be specified in the order. In addition to other circumstances as determined appropriate by the POTW superintendent, the failure to pay applicable permit fees or to comply with any term of a wastewater discharge permit constitutes sufficient cause to issue an order under this section.
(c) Order to effect pretreatment. The POTW superintendent may issue an order to a user requiring the user to pretreat its discharge in accordance with this article. Any user subject to an order to pretreat shall prepare a plan to pretreat its discharge so that the discharge complies with the requirements of the order and this article. The plan shall be submitted to the POTW superintendent within a reasonable period as specified in the order. The plan shall be prepared in accordance with good engineering practice and shall state whether construction is necessary, as well as identify measures that can be completed without construction. The plan shall contain a schedule of compliance for completion of each of the various phases necessary to implement full pretreatment. The schedule of compliance must be approved by the POTW superintendent. The schedule of compliance shall consist of one or more remedial measures, including enforceable timetables for a sequence of actions or operations leading to compliance with an effluent standard, or other prohibition or standard. The following steps or phases shall be included in the schedule of compliance as determined necessary by the POTW superintendent.
1. Retain a qualified engineer and/or consultant.
2. Obtain any engineering or scientific investigation or surveys deemed necessary.
3. Prepare and submit a preliminary plan to achieve pretreatment.
4. Prepare plans and specifications, working drawings, or other engineering or architectural documents that may be necessary to effect pretreatment.
5. Establish a time to let any contract necessary for any construction.
6. Establish completion times for any construction necessary.
7. Establish a time limit to complete full pretreatment pursuant to the final order.
8. If a phase or unit of construction or implementation may be effected independently of another phase or unit, establish separate timetables for the phase or unit.
(d) Order to perform affirmative action. The POTW superintendent may issue an order requiring a user to perform any action determined necessary by the POTW superintendent under this article, including, but not limited to, requiring a user to submit samples.; to install sampling, metering and monitoring equipment; to submit reports; to permit access for inspection, sampling, testing, monitoring and investigations; to reduce or eliminate a discharge or pollutants in a discharge; or to pay permit fees or other applicable charges.
(e) Order to terminate sewer services. The POTW superintendent may issue an order to terminate the sewer services of a user, including physical blockage of the user's sewer connection, for reasons including, but not limited to, the following:
1. A discharge that violates any general or specific discharge prohibition, including any pretreatment standard or requirement, and that reasonably appears to present an imminent endangerment to human health, the environment or the POTW.
2. Failure of a user to notify the POTW of any discharge as described in § 68-172 of which the user was aware or reasonably should have been aware.
3. Failure of a user to sample, monitor, pretreat, report, or failure to install monitoring or pretreatment facilities, as required by an order of the POTW superintendent.
4. A knowing, willful violation of any term, condition or requirement of an order or wastewater discharge permit, or any provision of this article.
5. A negligent violation of any major term, condition or requirement of an order or wastewater discharge permit. For purpose of this section, a "major" term, condition or requirement is one the violation of which is reasonably likely to endanger human health, the environment or the POTW. It shall be a violation of this article for any person to remove or tamper with any physical blockage or bulkhead installed pursuant to an order under this article.
6. The POTW superintendent's determination that such an order is necessary to comply with the intent and purposes of this article or other applicable laws and regulations.
(3) Immediate response to order may be required. Any user issued an order as provided by this section to immediately suspend it discharge to the POTW shall immediately stop or eliminate the discharge using whatever means are necessary to do so, or take any other action as required by the order. If the user fails to comply voluntarily with the order to immediately suspend its discharge, the city shall take any action determined necessary as authorized by this article, including, but not limited to, immediate suspensions of water service and/or severance of the sewer connection or commencement of judicial proceedings, to prevent or minimize damage to the POTW or endangerment to public health, safety or the environment. The city may reinstate the wastewater treatment service and terminate any judicial proceedings, as applicable, upon satisfactory proof or other demonstration by the user that the noncomplying discharge has been eliminated or will not reoccur. A detailed written statement submitted by the user describing the causes of the noncomplying discharge and the measures taken to prevent any further occurrence shall be submitted to the POTW superintendent within 15 days of the occurrence.
(4) Noncompliance due to factors beyond user's control. If noncompliance with an order is unintentional and temporary and due to factors beyond the reasonable control of a user, and the user can demonstrate the conditions necessary for demonstration of an upset as provided by § 68-196(A), the POTW superintendent may modify the order or take other actions as determined appropriate. However, a user shall not be relieved of liability for noncompliance with an order to the extent caused by operational error, improperly designed or inadequate treatment facilities, lack of preventative maintenance, or careless or improper operation.
(5) Amendment, suspension and revocation of orders. An order shall be subject to amendment, suspension or revocation as determined appropriate by the POTW superintendent. Notice of the amendment, suspension or revocation shall be served upon the user in the same manner as notice was provided for the original order. An amendment, suspension or revocation of an order shall be subject to the same procedures for review and appeal as the original issuance of the order, as provided by this article.
(6) Consent orders and agreements. The POTW superintendent may enter into a consent order or agreement with a user to resolve disputed claims and address identified and potential deficiencies in the user's compliance status. The order or agreement shall be in the form of a written agreement with the user and may contain appropriate provisions, including, but not limited to, compliance schedules and stipulated fines and remedial actions.
(7) POTW authority to require finance assurances. The POTW may require a noncompliant user to post a performance bond (or other form of surety acceptable to the POTW superintendent) sufficient to cover expenses that might reasonably be incurred as a result of future violations. Users that have in the prior 2 years been responsible for causing interference or pass through at the POTW may be required to obtain liability insurance sufficient to cover the reasonable costs of responding or restoring the POTW in the event of a second such incident. These requirements may also be made conditions of a user's permit.
(E) Service of notices of violations, orders and notices of assessments. Except as otherwise expressly provided by this article, all orders, notices of violations and notices of assessments shall be served upon persons and shall contain the information as provided by this section.
(1) Service. Service shall be by personal delivery or certified mail (return receipt requested), addressed to the user, alleged violator or other person, as applicable, at the person's last known address as shown by city records. The person served shall sign and date the order or notice and shall return the signed original copy to the POTW; provided, that the failure to do so shall not affect the person's obligation to comply with the order or notice. Further a notice or order served by mail may not actually be received, but this shall not nullify any enforcement action subsequently taken by the POTW under authority of this article.
(2) Contents. All orders and notices shall contain at least the following information, as applicable to the situation and to the extent know by the POTW:
(a) The name and address of the violator;
(b) The location and time that the violation occurred or was observed, and the duration of the violation;
(c) The nature of the violation, including the provisions of this article or of any permit, order, decision, determination or agreement violated;
(d) The basis for determining that a violation has occurred (personal observation, pollutant analysis, and the like);
(e) The amount of the fine, penalty or charge assessed or due, if any;
(f) The manner in which, and time and date by which, any fine, penalty or charge must be paid, including any penalty or charge for late payment;
(g) The remedial action ordered, the time within which require actions must be taken, and any consequences for failure to do so;
(h) The right to appeal the issuance of the order or notice and a summary of the procedures for appeal, or other applicable administrative procedures;
(i) The date and time the order or notice was issued.
(3) Request for additional information. A person served may request additional information from the POTW superintendent regarding the contents or requirements of any order or notice. However, a request for additional information shall not extend the time for compliance with an order or notice.
(F) Show cause hearing. Where the violation of subsection (B) of this section is not corrected by timely compliance by means of administrative adjustment, the POTW may order any discharger which causes or allows conduct prohibited by subsection (B) of this section to show cause before the POTW or its duly authorized representative why the proposed revocation should not be taken. A written notice shall be served on the discharger by personal service, certified or registered mail, return receipt requested, specifying the time and place of a hearing to be held by the POTW or its designee regarding the violation, the reasons why the enforcement action is to be taken, the proposed enforcement action and directing the discharger to show cause before the POTW or its designee why the proposed enforcement action should not be taken. The notice of the hearing shall be served no less than 10 days before the hearing. Service may be made on any agency, officer or authorized representative of a discharger. The proceedings at the hearing shall be conducted by the city POTW which shall then enter appropriate orders with respect to the alleged improper activities of the discharger. Appeal of such orders may be taken by the discharger in accordance with applicable local or state law.
(G) Judicial proceedings. Following the entry of any order by the city POTW with respect to the conduct of a discharger contrary to the provisions of subsection (B) of this section, the attorney for the POTW may, following the authorization of such action by the POTW, commence an action for appropriate, equitable relief in the appropriate court.
(H) Publication of users in significant non-compliance. The POTW shall publish once per year in the largest daily newspaper in the city a list of categorical industrial users that, at any time during the previous 12 months, were in significant non-compliance with the applicable pretreatment standards or requirements. The POTW may similarly publish a list of non-categorical users found to be in significant non-compliance as determined appropriate by the POTW superintendent. For the purposes of this section, a user shall be considered to be in significant non-compliance if its violations meet one or more of the following criteria:
(1) Chronic violation of discharge limits, defined here as those in which 66% or more of all of the measurements taken during a 6-month period exceed (by any magnitude) the daily maximum limit or the average limit of a numeric pretreatment standard or requirement, including instantaneous limits, as defined by 40 CFR 403.3(1) for the same pollutant parameter;
(2) Technical review criteria (TRC) violations, defined here as those in which 33% or more of all of the measurements taken for the same pollutant parameter during a six-month period equal or exceed the product of the daily maximum limit or the average limit numeric pretreatment standard or requirement including instantaneous limits, as defined by 40 CFR 403.3(1) multiplied by the applicable TRC (TRC = 1.4 for BOD, TSS, fats oil and grease, and 1.2 for all other pollutants, except pH);
(3) Any other violation of a pretreatment effluent limit (daily maximum, or longer-term average) standard or requirement as defined by 40 CFR 403.3(1) (daily maximum, long-term average, instantaneous limit, or narrative standard) that the control authority POTW determines has caused, alone or in combination with other discharges, interference or pass through (including endangering the health of POTW personnel or the general public);
(4) Any discharge of a pollutant that has caused imminent endangerment to human health, welfare, or to the environment, or has resulted in the POTW's exercise of its emergency authority to halt or prevent such a discharge;
(5) Failure to meet, within 90 days after the schedule date, a compliance schedule milestone contained in a local control mechanism or enforcement order, for starting construction, completing construction, or attaining final compliance;
(6) Failure to provide, within 30 days after the due date, required reports such as baseline monitoring reports, 90-day compliance reports, periodic self-monitoring reports and reports on compliance with compliance schedules;
(7) Failure to accurately report noncompliance;
(8) Any other violation or group of violations, which may include a violation of best management practices, which the POTW determines will adversely affect the operation or implementation of the local pretreatment program.
(I) Criminal investigation; imprisonment. The city may initiate a criminal investigation which involves the study of facts used to identify, locate and prove the guilt of a criminal. A criminal investigation may include searches, interviews, interrogations, evidence collection and preservation, and various methods of investigation. The following provide the basis for a criminal investigation. Any person who:
(1) At the time of the violation knew or should have known that a pollutant or substance was discharged contrary to any provision of this article or contrary to any notice, order, permit, decision or determination promulgated, issued or made by the POTW under this article;
(2) Intentionally makes a false statement, representation, or certification in an application for, or form pertaining to a permit, or in a notice, report, or record required by this article, or in any other correspondence or communication, written or oral, with the POTW regarding matters regulated by this article;
(3) Intentionally falsifies, tampers with, or renders inaccurate any sampling or monitoring device or record required to be maintained by this article;
(4) Maliciously or willfully breaks, damages, destroys, uncovers, defaces or tampers with any structure, appurtenance, or equipment that is part of the POTW; or
(5) Commits any other act that is punishable under state law by imprisonment for more than 93 days.
(6) Such person shall, upon conviction, be guilty of a misdemeanor punishable by a fine of $500 per violation per day or imprisonment for up to 93 days or both in the discretion of the court.
(1993 Code, § 68-193) (Ord. passed 1-22-2001; Ord. 2014-01, passed 1-27-2014)