(A) Notification of violation. Whenever the control authority finds that any user has violated or is violating this chapter or any prohibition, limitation, or requirement contained herein, a written notice stating the nature of the violation and providing a reasonable time, not to exceed 30 days, for the satisfactory correction thereof may be served. Unless otherwise stated in the notice, within ten days of the receipt of the notice, the discharger must respond personally or in writing to the control authority advising of its position with respect to the allegations. Thereafter, the parties must meet to determine the seriousness of the allegations and where necessary, establish a plan for satisfactory correction of the violation.
(B) Show cause hearing.
(1) If the violation is not corrected by timely compliance, the control authority may order any user who causes or allows an unauthorized discharge to show cause before the Board why service should not be terminated. A notice shall be served on the offending party specifying the time and place of the hearing to be held by the Board regarding the violation. The notice shall be served personally or by registered or certified mail (return receipt requested) at least ten days before the hearing. Service may be made on any agent or officer of a corporation.
(2) The Board may itself conduct the hearing and take the evidence or may designate any of its members or officers to:
(a) Issue in the name of the Board, notices of hearings requesting the attendance and testimony of witnesses and the production of evidence relevant to any matter involved in any such hearings;
(b) Take evidence; and
(c) Transmit a report of evidence and hearing, including transcripts and other evidence, together with recommendations to the Board for action thereon.
(3) At any public hearing, testimony taken before the Board or any person designated by it, must be under oath and recorded stenographically. The transcript or any part of the hearing, so recorded, will be made available to any member of the public upon payment of the usual charges.
(4) After the Board has reviewed the evidence, it may issue an order to the party responsible for the discharge that, following a specified time period, the sewer service be discontinued unless adequate treatment facilities, devices, or other related appurtenances are properly operated. The Board may issue such further orders and directives as are necessary and appropriate.
(C) Legal action. Any discharge in violation of the substantive provisions of this chapter or an order of the Board shall be considered a public nuisance. If any person discharges sewage, industrial wastes, or other wastes into the sewage works contrary to the substantive provisions of this ordinance or any order of the Board, the City Attorney shall commence an action to seek or assess civil or criminal penalties for appropriate legal and/or equitable relief.
(D) Discharger's right of appeal. Any discharger or any interested party has the right to request in writing an interpretation or ruling by the authority on any matter covered by a municipal ordinance and is entitled to a prompt, written reply. In the event that such an inquiry is made by the affected discharger and deals with matters of compliance with the ordinance or deals with a wastewater discharge permit, receipt of the discharger's request will delay all enforcement until he receives a written reply.
(E) Annual publication of violators. A list of all dischargers in significant noncompliance pursuant to the provisions of this chapter or state or federal regulations during the previous calendar year shall be published annually by the control authority in a newspaper of general circulation that provides meaningful public notice within the jurisdictions served by the POTW. The list shall summarize the enforcement actions taken against the dischargers during the calendar year in which violations were in significant noncompliance with applicable pretreatment requirements as defined in § 51.002.
(F) Suspension of service. The city utilities may suspend the wastewater treatment service and/or the wastewater discharge permit of a discharger if it appears to the city utilities that an actual or threatened discharge presents an imminent danger to the welfare of the persons, to the environment, to the operation of the wastewater treatment plant, or violates any pretreatment limits or wastewater permit. Any discharger notified of the suspension of wastewater service and/or the discharger's wastewater permit must, within a reasonable period of time as determined by the city utilities, cease all discharges. If the discharger fails to comply voluntarily with the suspension order wiinin the specified time, the city utilities must immediately commence judicial proceedings to compel the discharger's compliance with the order. The city utilities can reinstate the wastewater discharge permit and/or wastewater treatment service and terminate judicial proceedings provided the discharger can provide the elimination of the noncomplying discharge or conditions.
(G) Remedies nonexclusive. The remedies provided for in this chapter are nonexclusive. The control authority may take any, all, or any combination of these actions against a noncompliant user. Enforcement of pretreatment violations will generally be in accordance with the POTW's Enforcement Response Plan. However, the control authority may take other action against any User when the circumstances warrant. Further, the control authority is empowered to take more than one enforcement action against any noncompliant user.
(H) Affirmative defenses to discharge violations.
(1) Upset.
(a) An upset, as defined in § 51.002, shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the requirements of division (b) below, are met.
(b) An industrial user who wishes to establish affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that:
1. An upset occurred and the user can identify the cause(s) of the upset;
2. The facility was, at the time, being operated in a prudent and workman-like manner and in compliance with applicable operation and maintenance procedures; and
3. The user submitted a description of the indirect discharge and cause of noncompliance; the period of noncompliance, including exact times and dates or, if not corrected, the anticipated time the noncompliance is expected to continue; and the steps being taken and/or planned to reduce, eliminate, and prevent recurrence of the noncompliance to the control authority within 24 hours of becoming aware of the upset (if the information is provided orally, a written report must be provided within five days):
(c) In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof.
(d) Users shall have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for noncompliance with categorical pretreatment standards.
(e) The user shall control production of all discharges to the extent necessary to maintain compliance with categorical pretreatment standards upon the reduction, loss, or failure of its treatment facility until the facility is restored or an alternative method of treatment is provided. This requirement applies in the situation where, among other things, the primary source of power of the treatment facility is reduced, lost or fails.
(2) Bypass.
(a) An industrial user may allow any bypass, as defined in § 51.002, to occur which does not cause pretreatment standards or requirements to be violated, but only if it is also essential maintenance to assure efficient operation. These bypasses are not subject to the provisions of divisions (b) and (c) below.
(b) Notice. If an industrial user knows in advance of the need for a bypass, it shall submit prior notice to the control authority, if possible at least ten days before the date of the bypass. In the case of an unanticipated bypass that exceeds applicable pretreatment standards, the industrial user shall submit oral notice to the control authority within 24 hours from the time the user became aware of the bypass and a written submission shall also be submitted within five days of the time the user became aware of the bypass. The written submission shall contain a description of the bypass and its cause; the duration of the bypass, including exact dates and times, and, if the bypass has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent recurrence of the bypass. The control authority may waive the written report on a case-by-case basis if the oral report has been received within 24 hours.
(c) Prohibition of bypass.
1. Bypass is prohibited, and the control authority may take enforcement action against an industrial user for a bypass unless;
a. The bypass was unavoidable to prevent loss of life, personal injury, or severe property damage as defined in § 51.002;
b. There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime or preventative maintenance; and
c. The industrial user submitted notices as required under division (B) above.
2. The control authority may approve an anticipated bypass, after considering its adverse effects, if the control authority determines that it will meet the three conditions listed in division (c) above.
(Ord. 6386, passed 3-20-17)