(A) Notification of violation. Whenever the Superintendent finds that any industrial user has violated or is violating this chapter, or a wastewater permit or order issued hereunder, the City Manager will serve upon the user written notice of the violation. This will be the first step in the Enforcement Response Guide (Appendix A). Within ten days of the receipt date of this notice, an explanation of the violation and a plan for the satisfactory correction and prevention thereof, to include specific required actions, shall be submitted to the City Manager. Submission of this plan in no way relieves the user of liability for any violations occurring before or after receipt of the notice of violation. (See Appendix A.)
(B) Consent orders. When the Superintendent finds that an industrial user has violated this chapter or permit, the City Manager is empowered to enter into consent orders, assurances of voluntary compliance or other similar documents establishing an agreement with the industrial user responsible for the non-compliance. The orders will include specific action to be taken by the industrial user to correct the non-compliance within a time period also specified by the order. Consent orders shall have the same force and effect as administrative orders issued pursuant to division (D) below.
(C) Show cause hearing. When the Superintendent finds that an industrial user has violated this chapter or permit, the City Manager may order any industrial user which causes or contributes to a violation of this chapter or wastewater permit or order issued hereunder, to show cause before the City Council why a proposed enforcement action should not be taken. Notice shall be served on the user specifying the time and place for the meeting, the proposed enforcement action and the reasons for the action, and a request that the user show cause why this proposed enforcement action should not be taken. The notice of the meeting shall be served personally or by registered or certified mail (return receipt requested) at least ten days prior to the hearing. The notice may be served on any principal executive, general partner or corporate officer. Whether or not a duly notified industrial user appears as noticed, immediate enforcement action may be pursued.
(D) Compliance order. When the Superintendent finds that an industrial user has violated or continues to violate the ordinance or a permit or order issued thereunder, the City Manager may issue an order to the industrial user responsible for the discharge directing that, following a specified time period, sewer service shall be discontinued unless adequate treatment facilities, devices or other related appurtenances have been installed and are properly operated. Orders may also contain the other requirements as might be reasonably necessary and appropriate to address the non-compliance, including the installation of pretreatment technology, additional self-monitoring and management practices.
(E) Cease and desist orders. When the Superintendent finds that an industrial user has violated or continues to violate this chapter or any permit or order issued hereunder, the City Manager may issue an order to cease and desist all the violations and direct those persons in non-compliance to:
(1) Comply forthwith; and
(2) Take the appropriate remedial or preventive action as may be needed to properly address a continuing or threatened violation, including halting operations and terminating the discharge.
(F) Administrative fines. Notwithstanding any other section of this chapter, any user who is found to have violated any provision of this chapter, or permits and orders issued hereunder, shall be fined according to the fine schedule below (Table 3 - Violations/Offense Fine Schedule). Each day on which non-compliance shall occur or continue shall be deemed a separate and distinct violation. The assessments may be added to the user's next scheduled sewer service charge and the city shall have the other collection remedies as it has to collect other service charges. Unpaid charges, fines and penalties shall constitute a lien against the individuals user's property. Industrial users desiring to dispute the fines must file a request for the city to reconsider the fine within ten days of being notified on the fine. Where the City Manager believes a request has merit, he or she shall convene a hearing on the matter within 15 days of receiving the request from the industrial user.
(G) Emergency suspensions.
(1) When the Superintendent finds that an industrial user has violated this chapter or permit, the City Manager may suspend the wastewater treatment service and/or wastewater permit of an industrial user whenever the 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 persons, the POTW or the environment.
(2) Any user notified of a suspension of the wastewater treatment service and/or the wastewater permit shall immediately stop or eliminate this contribution. In the event of a user's failure to immediately comply voluntarily with the suspension order, the City Manager shall take the steps as deemed necessary, including immediate severance of the sewer connection, to prevent or minimize damage to the POTW, its receiving stream, or endangerment to any individuals. The City Manager shall allow the user to recommence its discharge when the endangerment has passed unless the termination proceedings set forth in division (H) below are initiated against the user.
(3) An industrial user which is 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 City Manager prior to the date service is re-established.
(H) Termination of permit.
(1) Significant industrial users proposed to discharge into the POTW, must first obtain a wastewater discharge permit from the city. Any user who violates the following conditions of this chapter or a wastewater discharge permit or order, or any applicable or state and federal law, is subject to permit termination:
(a) Violation of permit conditions;
(b) Failure to accurately report the wastewater constituents and characteristics of its discharge;
(c) Failure to report significant changes in operations or wastewater constituents and characteristics; and
(d) Refusal of reasonable access to the user's premises for the purpose of inspection, monitoring or sampling.
(2) Noncompliant industrial users will be notified of the proposed termination of their wastewater permit and be offered an opportunity to show cause under division (C) above why the proposed action should not be taken.
(I) Judicial remedies. If any person discharges sewage, industrial wastes or other wastes into the wastewater disposal system contrary to the provisions of this chapter or any order or permit issued hereunder, the City Manager, through the City Attorney, may commence an action for appropriate legal and/or equitable relief in the Chancery Court of Cumberland County.
(J) Injunctive relief. Whenever an industrial user has violated or continues to violate the provisions of this chapter or permit or order issued hereunder, the City Manager through counsel may petition the court for the issuance of a preliminary or permanent injunction or both (as may be appropriate) which restrains or compels the activities on the part of the industrial user. The city shall have the remedies to collect these fees as it has to collect other sewer service charges.
(K) Civil penalties.
(1) Any industrial user who has violated or continues to violate this chapter or any order or permit hereunder, shall be liable to the city for a civil penalty of at least $1,000 per day plus actual damages incurred by the POTW per violation per day for as long as the violation continues. In addition to the above-described penalty and damages, the city may recover reasonable attorney's fees, court costs and other expenses associated with the enforcement activities, including sampling and monitoring expenses.
(2) The city shall petition the court to impose, assess and recover the sums. In determining the amount of liability, the court shall take into account all relevant circumstances, including, but not limited to, the extent of harm caused by the violation, the magnitude and duration, any economic benefit gained through the industrial user's violation, corrective actions by the industrial user, the compliance history of the user and any other factor as justice requires.
(L) Criminal prosecution.
(1) Violations; generally.
(a) Any industrial user who willfully or negligently violates any provision of this chapter or any orders or permits issued hereunder, shall, upon conviction, by guilty of a misdemeanor, punishable by a fine not to exceed $1,000 per violation per day or imprisonment for not more than one year or both.
(b) In the event of a second conviction, the user shall be punishable by a fine not to exceed $3,000 per violation per day or imprisonment for not more than three years or both.
(2) Falsifying information.
(a) Any industrial user who knowingly makes any false statements, representations or certifications in any application, record, report, plan or other document filed or required to be maintained pursuant to this chapter, or wastewater permit, or who falsifies, tampers with or knowingly renders inaccurate, any monitoring device or method required under this chapter shall, upon conviction, be punished by a fine of not more than $1,000 per violation.
(b) In the event of a second conviction, the user shall be punishable by a fine not to exceed $3,000 per violation per day or imprisonment for not more than three years or both.
(M) Annual publication of significant violations. When the Superintendent finds that an industrial user has violated this chapter or permit, the City Manager shall publish, at least annually in the largest newspaper circulated in the service area, a description of those industrial users which are found to be in significant violation, as defined in division (Q) below, with any provisions of this chapter or any permit or order issued hereunder during the period since the previous publication.
(N) Water supply severance. Whenever an industrial user has violated or continues to violate the provisions of this chapter or an order or permit issued hereunder, water service to the industrial user may be severed and service will only recommence, at the user's expense, after it has satisfactorily demonstrated its ability to comply.
(O) Affirmative defenses.
(1) Any industrial user which experiences an upset in operations that places it in a temporary state of non-compliance, which is not the result of operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation, shall inform the City Manager thereof immediately upon becoming aware of the upset. Where the information is given orally, a written report thereof shall be filed by the user within five days. The report shall contain:
(a) A description of the upset, its cause(s) and impact on the discharger's compliance status;
(b) The duration of non-compliance, including exact dates and times of non-compliance and, if the non-compliance is continuing, the time by which compliance is reasonably expected to be restored; and
(c) All steps taken, or planned, to reduce, eliminate and prevent recurrence of the an upset.
(2) An industrial user which complies with the notification provisions of this section in a timely manner shall have an affirmative defense to any enforcement action brought by the City Manager for any non-compliance with this chapter, or an order or permit issued hereunder by the user, which arises out of violations attributable to and alleged to have occurred during the period of the documented and verified upset.
(P) Treatment bypasses.
(1) A bypass of the treatment system is prohibited unless all of the following conditions are met:
(a) The bypass was unavoidable to prevent loss of life, personal injury or severe property damage;
(b) There was no feasible alternative to the bypass, including the use of auxiliary treatment or retention of the wastewater; and
(c) The industrial user properly notified the Superintendent as described in division (P)(2) below.
(2) Industrial users must provide immediate notice to the City Manager upon discovery of an unanticipated bypass. If necessary, the Superintendent may require the industrial user to submit a written report explaining the cause(s), nature and duration of the bypass, and the steps being taken to prevent its recurrence.
(3) An industrial user may allow a bypass to occur which does not cause pretreatment standards or requirements to be violated, but only if it is for essential maintenance to ensure efficient operation of the treatment system. Industrial users anticipating a bypass must submit notice to the City Manager at least ten days in advance. The City Manager may only approve the anticipated bypass if the circumstances satisfy those set forth in division (P)(1) above.
(Q) Magnitude of the violation.
(1) Generally, an isolated instance of non-compliance can be met with an informal response or a notice of violation.
(2) However, since even an isolated violation could threaten public health and the environment, damage public and private property, or threaten the integrity of the city's program (e.g., falsifying a self-monitoring report), EPA recommends that cities respond to any "significant non-compliance" with an enforceable order that requires a return to compliance by a specific deadline. EPA has defined significant non-compliance in its general pretreatment regulations (see 55 FR July 24, 1990) as violations which meet one or more of the following criteria:
(a) Violations of wastewater discharge limits.
1. Chronic violations. Sixty-six percent or more of the measurements exceed the same daily maximum limit or the same average limit in a six-month period (any magnitude of exceedance).
2. Technical Review Criteria (TRC). Those in which 33% or more of all of the measurements for each pollutant parameter taken during a six-month period equal or exceed the product of the daily maximum limit or the average limit 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(s) of effluent limit (average or daily maximum) that the city believes has caused, alone or in combination with other discharges, interference or pass-through or endangered the health of the sewage treatment personnel or the public.
4. Any discharge of a pollutant that has caused imminent endangerment to human health/welfare or to the environment and has resulted in the POTW's exercise of its emergency authority to halt or prevent the a discharge.
(b) Violations of compliance schedule milestones contained in a local control mechanism or enforcement order, for starting construction, completing construction, and attaining final compliance by 90 days or more after the schedule date;
(c) Failure to provide reports for compliance schedules, self-monitoring data, or categorical standards (baseline monitoring reports, 90-day compliance reports, and periodic reports) within 30 days from the due date;
(d) Failure to accurately report non-compliance; and
(e) Any other violation or group of violations that the city considers to be significant.
(1989 Code, § 18-208)