1040.99  PENALTIES; EQUITABLE REMEDIES.
   (a)   Civil Penalties.  Any user who is found responsible for having violated an order of the Village, Township, Board or POTW, or who willfully or negligently failed to comply with any provision of this chapter, and the orders, rules, regulations and permits issued hereunder, shall be liable for a civil fine of not less than one hundred dollars ($100.00) nor more than five hundred dollars ($500.00) for each offense. Each day on which a violation shall occur or continue shall be deemed a separate and distinct offense. In addition to the penalties provided herein, the Village, Township, the POTW or the Board may recover its actual costs incurred for any cleaning, repair or replacement work caused by a violation and reasonable attorney fees, court costs, court reporters' fees and other expenses of litigation, by appropriate suit at law against the person found to have violated this chapter or the orders, rules, regulations and permits issued hereunder.
   (b)   Criminal Penalties.  In addition to any other penalty or legal remedy, any person who violates any provision of this chapter, or any rule or regulation adopted or issued in pursuance hereof, or who fails to comply with any proper order issued hereunder by the POTW, Board, Village or Township within the time limits specified herein, shall, upon conviction of said violation, be subject to a fine of not more than five hundred dollars ($500.00) and costs of prosecution, or imprisonment for not more than ninety days, or both such fine and imprisonment.
   (c)   Operations Upset as Affirmative Defense. An operations upset shall constitute an affirmative defense to any action brought for noncompliance with the National Categorical Pretreatment Standards of this chapter if the following demonstration and requirements are met:
      (1)   The industrial user shall demonstrate, through properly signed, contemporaneous operating logs or other relevant evidence, that:
         A.   An upset occurred and the industrial user can identify the cause or causes of the upset.
         B.   The facility was at the time being operated in a prudent and workmanlike manner and in compliance with applicable operation and maintenance procedures.
         C.   The industrial user has submitted to the Superintendent the oral and written notifications required by Section 1040.19.
      (2)   In any enforcement proceeding, the industrial user seeking to establish the occurrence of an upset shall have the burden of proof.
      (3)   In case of upset, the industrial user shall control production or all discharges to the extent necessary to maintain compliance with the National Categorical Pretreatment Standards upon reduction, loss or failure of its treatment facility, until the facility is restored or an alternative method of treatment is provided. This requirement shall apply in any situation where, among others, the primary source of power of the facility is receded, lost or fails.
(Ord. 97-4.  Passed 9-8-97.)