§ 53.10  PRETREATMENT ENFORCEMENT.
      (1)   General duties. The local hearing authority, pursuant to Tenn. Code Ann. § 69-3-123, is responsible for the administration and enforcement of the pretreatment program and the said state statute.
      (2)   Hearings. Any hearing or rehearing brought before the local hearing authority shall be conducted in accordance with the following:
         (a)   Upon receipt of a written petition from the alleged violator pursuant to this section, the director shall give the petitioner 30 days written notice of the time and place of the hearing, but in no case shall such hearing be held more than 60 days from the receipt of the written petition, unless the director and the petitioner agree to a postponement;
         (b)   The hearing herein provided may be conducted by a local hearing authority at a regular or a special meeting;
         (c)   A verbatim record of the proceedings of such hearing shall be taken and filed with the local hearing authority, together with the findings of fact and conclusions of law made pursuant to division (A)(f) of this section. The transcript so recorded shall be made available to the petitioner or any party to a hearing upon payment of a charge set by the local hearing authority to cover the costs of preparation;
         (d)   In connection with the hearing, the Director shall issue subpoenas in response to any request by any party to the hearing requiring the attendance and testimony of witnesses and the production of evidence relevant to any matter involved in the hearing. In case of contumacy or refusal to obey a notice of hearing or subpoena issued under this section, the Shelby County Chancery Court shall have jurisdiction upon the application of the local hearing authority or the Director to issue an order requiring such person to appear and testify or produce evidence as the case may require and any failure to obey such order of the court may be punished by such court as contempt thereof;
         (e)   The local hearing authority may administer oaths and examine witnesses;
         (f)   On the basis of the evidence produced at the hearing, the local hearing authority shall make findings of fact and conclusions of law and enter such decisions and orders as in its opinion will best further the purposes of the pretreatment program and shall give written notice of such decisions and orders to the alleged violator. The order issued under this division shall be issued no later than 30 days following the close of the hearing by the person or persons designated by the local hearing authority;
         (g)   The decision of the local hearing authority shall become final and binding on all parties; and
         (h)   Any person to whom an emergency order is directed pursuant to § 53.10(B)(4) shall comply therewith immediately but on petition to the local hearing authority shall be afforded a hearing as soon as possible, but in no case shall such hearing be held later than three days from the receipt of such petition by the local hearing authority.
      (3)   Appeal. An appeal may be taken from any final order or other final determination of the local hearing authority by any party, including the pretreatment agency, who is or may be adversely affected thereby, to the chancery court pursuant to the common law writ of certiorari set out in the Tenn. Code Ann., § 27-8-101, within 60 days from the date such order or determination is made.
   (B)   Complaints.
      (1)   Whenever the control authority has reason to believe that a violation of any provision of the pretreatment program of the pretreatment agency or orders of the control authority issued pursuant thereto has occurred, is occurring, or is about to occur, the control authority may cause a written complaint to be served upon the alleged violator or violators.
      (2)   The complaint shall specify the provision or provisions of the pretreatment program or order alleged to be violated or about to be violated, the facts alleged to constitute a violation thereof, may order that necessary corrective action be taken within a reasonable time to be prescribed in such order, and shall inform the violators of the opportunity for a hearing before the control authority.
      (3)   Any such order shall become final and not subject to review unless the person or persons named therein request by written petition a hearing before the control authority as provided, no later than 30 days after the date such order is served; provided, however, that the control authority may review such final order on the same grounds upon which a court of the state may review default judgments.
      (4)   Emergency circumstances.
         (a)   Whenever the control authority finds that an emergency exists imperatively requiring immediate action to protect the public health, safety or welfare, the health of animals, fish or aquatic life, a public water supply, or the facilities of the POTW, the control authority may, without prior notice, issue an order reciting the existence of such an emergency and requiring that such action be taken as the control authority deems necessary to meet the emergency up to and including immediate termination of sewer service.
         (b)   If the violator fails to respond or is unable to respond to the order, the control authority may take such emergency action as deemed necessary, or contract with a qualified person or persons to carry out the emergency measures. The control authority may assess the person or persons responsible for the emergency condition for actual costs incurred by the Town in meeting the emergency.
      (5)   Except as otherwise expressly provided, any notice, complaint, order or other instrument issued by or under authority of this part may be served on any person affected thereby personally, by the control authority, or such service may be made in accordance with Tennessee statutes authorizing service of process in civil action.
   (C)   Violations.
      (1)   Any person including, but not limited to residential, carwash, restaurant, commercial, industrial user, who does any of the following acts or omissions may be subject to a civil penalty of up to $ 10,000 per day for each day during which the act or omission continues or occurs, or be subject to criminal penalties:
         (a)   Violates an effluent standard or limitation imposed by the control authority;
         (b)   Violates the terms or conditions of a discharge permit issued;
         (c)   Fails to complete a filing requirement of a discharge permit;
         (d)   Fails to allow or perform an entry, inspection, and monitoring or reporting requirement of a discharge permit;
         (e)   Fails to pay user or cost recovery charges imposed by the control authority;
         (f)   Violates a final determination or order of the control authority; or
         (g)   Violates the regulations for transportation or disposal of hauled wastes.
      (2)   All industrial users are subject to the Enforcement Response Plan.
      (3)   Any civil penalty shall be assessed in the following manner:
         (a)   The control authority may issue a notice of violation, assessment, cease and desist order, or an administrative order with a fine against any person or industrial user responsible for the violation;
         (b)   Any person or industrial user against whom an assessment has been issued may secure a review of such assessment by filing with the control authority a written petition setting forth the grounds and reasons for his or her objections and asking for a hearing in the matter involved before the control authority and if a petition for review of the assessment is not filed within 30 days after the date the assessment is served, the violator shall be deemed to have consented to the assessment and it shall become final; and
         (c)   Whenever any assessment has become final because of a person's failure to appeal the control authority, the control authority may apply to the appropriate court for a judgment and seek execution of such judgment and the court, in such proceedings, shall treat a failure to appeal such assessment as a confession of judgment in the amount of the assessment.
         (d)   In assessing the civil penalty the control authority may consider the following factors:
            1.   Whether the civil penalty imposed will be substantial economic deterrent to illegal activity;
            2.   Damages to the pretreatment agency, including compensation for the damage or destruction of the facilities of the POTW, and also including any penalties, costs and attorney's fees incurred by the control authority as the result of the illegal activity, as well as the expenses involved in enforcing this section and the costs involved in rectifying any damages;
            3.   Cause of the discharge or violation;
            4.   The severity of the discharge and its effect upon the facilities of the POTW and upon the quality and quantity of the receiving waters;
            5.   Effectiveness of action taken by the violator to cease the violation;
            6.   The technical and economic reasonableness of reducing or eliminating the discharge; and
            7.   The economic benefit gained by the violator.
         (e)   The control authority may institute proceedings for assessment in the chancery court in which all or part of the pollution or violation occurred.
      (4)   (a)   The control authority may establish by regulation a schedule of the amount of civil penalty which can be assessed for certain specific violations or categories of violations.
         (b)   Any civil penalty assessed to a violator pursuant to this section may be in addition to any civil penalty assessed by the Commissioner of the Department of Environment and Conservation for violations of Tenn. Code Ann., § 69-3-115(a)(1)(F). Provided, however the sum of penalties imposed by this section and by Tenn. Code Ann., § 69-3-115(a) shall not exceed $10,000 per day for each day during which the act or omission continues or occurs. The state's share of any additional costs of this section shall be funded in accordance with Tenn. Code Ann., § 9-6-303, from the increase in state imposed taxes which are earmarked to counties and which are not designated by such counties for a particular purpose.
      (5)   Public notification and significant noncompliance. As required by 40 CFR 403.8, Federal Pretreatment Requirement, the Town of Collierville will publish annually in the largest daily newspaper the names of all industrial/commercial users, which at any time during the year were in significant noncompliance with applicable pretreatment requirements. For purposes of this provision, an industrial user is in significant noncompliance if its violation meets one or more of the following criteria:
         (a)   Chronic violations of wastewater discharge limits, defined here as those in which 66% or more of all the measurements taken for the same pollutant parameter taken during a six month period exceed (by any magnitude) the numeric pretreatment standard or requirement, including instantaneous limit;
         (b)   Technical Review Criteria (TRC) violations, defined here as those in which 33% or more of wastewater measurements taken for each pollutant parameter taken during a six-month period equals or exceeds the product of the numeric pretreatment standard or requirement, including instantaneous limits multiplied by the applicable criteria (1.4 for BOD, TSS, fats, oil and grease, and 1.2 for all other pollutants except pH);
         (c)   Any other violation of a pretreatment standard or requirement (daily maximum, long term average, instantaneous limit, or narrative standard) that control authority determines has caused, alone or in combination with other discharges, interference or pass through (including endangering the health of POW personnel or general public);
         (d)   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;
         (e)   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;
         (f)   Failure to provide, within 30 days after the due date, required reports such as baseline monitoring reports, 90 day compliance reports, and reports on compliance with compliance schedules;
         (g)   Failure to accurately report noncompliance; and
         (h)   Any other violation or group of violations, including violation of BMPs, which the control authority determines will adversely affect the operation or implementation of the local pretreatment program.
   (D)   Damages assessment.
      (1)   The control authority may assess the liability of any polluter or violator for damages to the POTW resulting from any person's or industrial users pollution or violation, failure, or neglect in complying with any permits or orders issued pursuant to the provisions of the pretreatment program of this section.
      (2)   If an appeal from such assessment is not made to the control authority by the polluter or violator within 30 days of notification of such assessment, he or she shall be deemed to have consented to such assessment and it shall become final.
      (3)   Damages may include any expenses incurred in investigating and enforcing the pretreatment program or Tenn. Code Ann., § 69-3-123-129 in removing, correcting, and terminating any pollution, and also compensation for any actual damages caused by the pollution or violation.
      (4)   Whenever any assessment has become final because of a person's failure to appeal within the time provided, the control authority may apply to the appropriate court for a judgment, and seek execution on such judgment. The court, in such proceedings, shall treat the failure to appeal such assessment as a confession of judgment in the amount of the assessment.
(Ord. 2017-07, passed 5-8-17)