(A) Administrative enforcement.
(1) Notice of violation with compliance order. The Director shall issue a notice of violation with compliance order to a user if the Director discovers a violation of this chapter, a permit issued hereunder, or any other applicable pretreatment requirement. The notice of violation shall indicate to the user the exact nature of the violation. The compliance order shall identify the ordinance violated, describe the violation and shall direct the user to immediately cease committing a violation of this chapter.
(2) User response. The user shall respond in writing to the notice of violation with compliance order within 15 calendar days of receipt of notification. Lack of response shall be considered a violation of this chapter.
(3) Consent order. A consent order is an order issued by the Board and agreed upon by the user which incorporates the terms and conditions as follows:
(a) A compliance schedule;
(b) The monetary penalty as listed in the enforcement response plan, if any;
(c) A plan for remediating the violation; and
(d) Authorized signatures of the representative of the user and the Board.
(4) Cease and desist order. A cease and desist order may be issued when the Director fmds that a user has violated, or continues to violate, any permit, provision of this chapter, order issued hereunder, or other pretreatment requirement. The Director may also issue a cease and desist order if the user has failed to meet the terms and conditions of an issued consent order or if the user's past violations are likely to reoccur. The Director may issue such an order directing the user to cease all such violations. The user shall nrrmediately comply with all requirements and take such appropriate remedial or preventive action as may be needed to properly address a continuing or threatened violation. That may include halting operations or terminating the discharge. Issuance of a cease and desist order shall not be a bar against, or a prerequisite for, taking any other action against the user.
(5) Show cause.
(a) Order to show cause. The Board may issue a written order to show cause to any user who violates or continues to violate any provision of this chapter, a permit, order issued hereunder, or any other applicable pretreatment requirement. The order to show cause shall be served personally or by registered or certified mail or equivalent, return receipt requested, upon the user or the user's duly authorized representative. The order to show cause shall describe the noncompliance and the proposed enforcement action. The order to show cause shall also specify the place where a written response shall be filed and the date by which it shall be filed. In addition, the order to show cause should indicate that:
1. If the allegations of the order to show cause are not disputed; the written response should include a statement that the user intends to comply with the order. The response shall address each violation in the order to show cause and describe the steps that the user intends to take to address the violation. The Director shall review the user's written response and shall notify the user within 30 calendar days after the written response is received whether the response is satisfactory. If the Director determines that the written response is satisfactory, the matter shall not be scheduled for hearing. However, if the Director determines that the written response is unsatisfactory, then the matter shall be scheduled for a hearing before the Board. Failure to respond shall be a violation of this chapter.
2. If the allegations of the order to show cause are disputed, the user shall submit a written request for a hearing before the Board. The President of the Board shall then issue a notice setting forth the date, time and place of the hearing and shall serve the notice upon the user in the same manner as prescribed for service of the order to show cause.
(b) Hearing before the Board. The Board shall conduct the hearing at a regularly scheduled Board meeting or at any other time acceptable to the Board. The Board:
1. May request the attendance and testimony of witnesses and the production of evidence relevant to any matter involved in such hearing; and
2. Shall take the evidence.
(c) Issuance of orders. After the Board reviews the evidence, it may issue an order to the user directing that wastewater service will be discontinued unless adequate treatment facilities or devices have been installed by a specified date. The Board may also order wastewater service to be discontinued unless existing treatment facilities and devices are properly operated. Further orders and directives may be issued. If the user violates the Board's order, the Board may also take any other appropriate legal action.
(6) Termination of service. Any user who violates or continues to violate any provision of this chapter, a permit, or order issued hereunder or any other applicable pretreatment standard or requirement may be subject to suspension or termination of wastewater service.
(a) Any user notified by the city of a suspension or termination of wastewater service or suspension or revocation of a permit shall immediately stop or eliminate all discharges. In an emergency, the order to cease discharge may be given by telephone, followed by written confirmation of such notice. In non-emergency situations, an administrative order may be used to suspend or terminate wastewater service. If the user fails to comply with the suspension or termination order, the city shall take all steps as deemed necessary to halt the discharge including immediate severance of the wastewater connection.
(b) The Board shall not reinstate the permit or the wastewater service until proof of the elimination of the non-complying discharge and any costs for disconnection and reconnection of wastewater service have been paid by the user.
(7) Publication of violations. The Director shall, at least annually, publish in the newspaper of general circulation, having the largest circulation within the city, a list of the users that were in significant noncompliance at any time during the previous 12 months.
(B) Legal action.
(1) A user shall be liable for any and all damages, losses and expenses sustained by the city as a result of noncompliance. The Corporation Counsel may commence an action for appropriate legal and equitable relief in the appropriate court of Elkhart County in order to obtain remedies for noncompliance by the user.
(2) When the Director finds that a user has violated any terms of their permit, this chapter, any order issued hereunder, or any other pretreatment requirement, the city may petition the court for the issuance of a temporary or permanent injunction. The injunction would compel the specific performance of the user to be in compliance with the permit, order, or other requirement imposed by this chapter. The Director may also seek such other action as is appropriate for legal or equitable relief, including a requirement for the user to conduct environmental remediation. A petition for injunctive relief shall not be a bar against or a prerequisite for taking any other action against a user.
(C) Affirmative defenses.
(1) Prohibited discharge standards. A user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general prohibitions of this chapter, if the user can prove that it did not know, or have reason to know, that its discharge, alone or in conjunction with discharges from other sources, would cause pass through or interference and that either:
(a) A local limit exists for each pollutant discharged and the user was in compliance with each limit directly prior to, and during, the pass through or interference; or
(b) No local limit exists, but the discharge did not change substantially in nature or constituents from the user's prior discharge when the city was regularly in compliance with its NPDES permit, and in the case of interference, was in compliance with applicable sludge use or disposal requirements.
(2) Bypass.
(a) For the purposes of this section:
1. BYPASS means the intentional diversion of waste streams from any portion of a user's treatment facility.
2. SEVERE PROPERTY DAMAGE means substantial physical damage to property, damage to the treatment facilities which causes them to become inoperable, or substantial and permanent loss of natural resources which can reasonably be expected to occur in the absence of a bypass. SEVERE PROPERTY DAMAGE does not mean economic loss caused by delays in production.
(b) A user may allow any bypass to occur which does not cause pretreatment standards or requirements to be violated, but only if it also is for essential maintenance to assure efficient operation. These bypasses are not subject to the provision of divisions (c) and (d) of this section.
(c) Bypass notifications.
1. If a user knows in advance of the need for a bypass, the user shall submit prior notice to the Director, at least 10 calendar days before the date of the bypass, if possible.
2. A user shall submit oral notice to the Director of an unanticipated bypass that exceeds applicable pretreatment standards within 24 hours from the time the user becomes aware of the bypass. A written submission shall also be provided within 5 calendar days of the time the user becomes 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 reoccurrence of the bypass.
(d) Bypass is prohibited, and the Director may take an enforcement action against a user for a bypass, unless:
1. Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;
2. 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. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance; and
3. The user submitted notices as required under division (C)(2)(c) of this section.
(e) The Director may approve an anticipated bypass, after considering its adverse effects, if the Director determines that it will meet the three conditions listed in divisions (C)(2)(b), (c) and (d)of this section.
(3) Upset.
(a) For the purposes of this section, UPSET means an exceptional incident in which there is unintentional and temporary noncompliance with categorical pretreatment standards because of factors beyond the reasonable control of the user. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.
(b) A user who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence, the following facts:
1. An upset occurred and the user can identify the cause of the upset;
2. The facility was at the time being operated in a prudent manner and in compliance with applicable O & M procedures; and
3. The user has submitted the following information to the Director within 24 hours of becoming aware of the upset. If this information is provided orally, a written submission must be provided within five calendar days:
a. A description of the indirect discharge and cause of noncompliance;
b. The period of noncompliance, including exact dates and times or, if not corrected, the anticipated time the noncompliance is expected to continue; and
c. Steps being taken or planned to reduce, eliminate, and prevent reoccurrence of the noncompliance.
(d) In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof.
(e) 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.
(f) Users shall control all discharges to the extent necessary to maintain compliance with 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 applies in the situation where, among other things, the primary source of power of the treatment facility is reduced, lost, or fails.
(Ord. 5746, passed 7-1-2019)