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(A) Any user who is found to have failed to comply with any provision of this division, or the orders, rules, regulations and permits issued hereunder, may be assessed a civil penalty of up to $25,000 per day per violation.
(1) Penalties between $10,000 and $25,000 per day per violation may be assessed against a violator only if:
(a) For any class of violation, only if a civil penalty has been imposed against the violator within the five years preceding the violation; or
(b) In the case of failure to file, submit, or make available, as the case may be, any documents, data, or reports required by this article, or the orders, rules, regulations and permits issued hereunder, only if the POTW Director determines that the violation was intentional and a civil penalty has been imposed against the violator within the five years preceding the violation.
(B) In determining the amount of civil penalties for a particular violation, the POTW Director shall consider the following:
(1) The degree and extent of the harm to natural resources, to public health, or to public or private property resulting from the violation;
(2) The duration and gravity of the violation;
(3) The effect on ground or surface water quantity or quality, or on air quality;
(4) The cost of rectifying the damage;
(5) The amount of money saved by non-compliance;
(6) Whether the violation was committed willfully or intentionally;
(7) The prior record of the violator in complying or failing to comply; and
(8) The costs of enforcement to the city.
(C) Appeals of civil penalties assessed in accordance with this section shall be as provided in § 15-194.
(Ord. passed 5-17-94; Am. Ord. passed 3 20 01; Am. Ord. passed 10-20-09; Am. Ord. passed 11-20-12)
Remedies, in addition to those previously mentioned in this division, are available to the POTW Director who may use any single one or combination against a noncompliant user. Additional available remedies include, but are not limited to:
(A) Criminal violations. The District Attorney for the Judicial District 17A may, at the request of the city, prosecute noncompliant users who violate the provisions of G.S. § 143-215.6B. (Note: Under North Carolina law, it is a crime to negligently violate any term, condition, or requirement of a pretreatment permit, or negligently fail to apply for a pretreatment permit, issued by local governments (G.S. § 143-215.6B(f)), to knowingly and willfully violate any term, condition, or requirement of a pretreatment permit, or knowingly and willfully fail to apply for a pretreatment permit, issued by local governments (G.S. § 143 215.6B(g)), to knowingly violate any term, condition, or requirement of a pretreatment permit issued by local governments, or knowingly fail to apply for a pretreatment permit, knowing at the time that a person is placed in imminent danger of death or serious bodily injury, (G.S. § 143-215.6B(h)), and to falsify information required under Article 21 of Chapter 143 of the General Statutes (G.S. § 143 215.6B(I)).)
(B) Injunctive relief. Whenever a user is in violation of the provisions of this division or an order or permit issued hereunder, the POTW Director, through the City Attorney, may petition the Superior Court of Justice for the issuance of a restraining order or a preliminary and permanent injunction which restrains or compels the activities in question.
(C) Water supply severance. Whenever an industrial user is in violation of the provisions of this division or an order or permit issued hereunder, water service to the industrial user may be severed and service will only recommence, at the users expense, after it has satisfactorily demonstrated ability to comply.
(D) Public nuisances. Any violation of the prohibitions or effluent limitations of this division or of a permit or order issued hereunder, is hereby declared a public nuisance and shall be corrected or abated as directed by the POTW Director. Any person(s) creating a public nuisance shall be subject to the provisions of the Unified Development Ordinance “Conditions Constituting Public Nuisances” governing such nuisances, including reimbursing the POTW for any costs incurred in removing, abating or remedying said nuisance.
(E) Sewage charges. If it is determined that water from a special use water meter is being returned to the City’s wastewater collection system, the Director of Finance and Personnel may assess sewage charges on all water billed through the meter from the date of service. Charges beyond current available billing records shall be based on using the billing and consumption information from current available billing records.
(Ord. passed 5-17-94; Am. Ord. passed 3-18-03)
The remedies provided for in this division are not exclusive. The POTW Director 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 city’s enforcement response plan. However, the POTW Director may take other action against any user when the circumstances warrant. Further, the POTW Director is empowered to take more than one enforcement action against any noncompliant user.
(Ord. passed 5-17-94)
SUBDIVISION I: ANNUAL PUBLICATION OF SIGNIFICANT NONCOMPLIANCE
At least annually, the POTW Director shall publish in a newspaper of general circulation that provides meaningful public notice within the jurisdiction(s) served by the POTW, a list of those industrial users which were found to be in significant noncompliance, also referred to as reportable noncompliance, in 15A NCAC 2H.0903(b)(10), with applicable pretreatment standards and requirements, during the previous 12 months.
(Ord. passed 5-17-94; Am. Ord. passed 10-20-09)
SUBDIVISION J: ADJUDICATORY HEARINGS
(A) Initial adjudicatory hearing. An applicant whose permit is denied, granted subject to conditions he deems unacceptable, a permittee/user assessed a civil penalty under § 15-186, or one issued an administrative order under § 15-185 shall have the right to an adjudicatory hearing before the POTW Director or other hearing officer appointed by the POTW Director upon making written demand, identifying the specific issues to be contested, to the POTW Director within 30 days following receipt of the significant industrial permit, notice of permit denial, civil penalty assessment, or administrative order. Unless such written demand is made within the time specified herein, the action shall be final and binding and further appeal is barred. For modified permits, only those parts of the permit being modified may be adjudicated. The hearing officer shall make a final decision on the contested permit, penalty, or order within 45 days of the receipt of the written demand for a hearing. The POTW Director shall transmit a copy of the hearing officer's decision by registered or certified mail as described in division (C) below. The terms and conditions of a permit under appeal shall be as follows:
(1) New permits. Upon appeal, including judicial review in the General Courts of Justice, of the terms or conditions of a newly issued permit, the terms and conditions of the entire permit are stayed and the permit is not in effect until either the conclusion of judicial review or until the parties reach a mutual resolution.
(2) Renewed permits. Upon appeal, including judicial review in the General Courts of Justice, of the terms or conditions of a renewed permit, the terms and conditions of the existing permit remain in effect until either the conclusion of judicial review or until the parties reach a mutual resolution.
(3) Terminated permits. Upon appeal, including judicial review in the General Courts of Justice, of a terminated permit, no permit is in effect until either the conclusion of judicial review or until the parties reach a mutual resolution.
(B) Final appeal hearing. Any decision of a hearing officer made as a result of an adjudicatory hearing held under division (1) above may be appealed, to the City Council upon filing a written demand within ten days of receipt of notice of the decision. Hearings held under this division shall be conducted in accordance with local hearing procedures. Failure to make written demand within the time specified herein shall bar further appeal. The City Council shall make a final decision on the appeal within 90 days from receipt of the demand filed under division (A) above and shall transmit a written copy of its decision by registered or certified mail as described in division (C) below. The decision is a final decision for the purposes of seeking judicial review.
(C) Official record. When a final decision is issued under division (B) above, the City Council shall prepare an official record of the case that includes:
(1) All notices, motions, and other like pleadings;
(2) A copy of all documentary evidence introduced;
(3) A certified transcript of all testimony taken, if testimony is transcribed. If testimony is taken and not transcribed, then a narrative summary of any testimony taken; and
(4) A copy of the final decision of City Council.
(D) Judicial review. Any person against whom a final order or decision of the City Council is entered, pursuant to the hearing conducted under division (B) above, may seek judicial review of the order or decision by filing a written request for review by the Superior Court of Rockingham County within 30 days after receipt of notice by registered or certified mail of the order or decision, but not thereafter, with the Superior Court of Rockingham County along with a copy to the city. Within 30 days after receipt of the copy of the written request for review by the Court, the City Council shall transmit to the reviewing court the original or a certified copy of the official record.
(Ord. passed 11-20-12)
SUBDIVISION K: AFFIRMATIVE DEFENSES TO DISCHARGE VIOLATIONS
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