Under the authority of Tenn. Code Ann. §§ 69-3-123 et seq.:
(A) Complaints; notification of violation; orders.
(1) (a) Whenever the local administrative officer has reason to believe that a violation of any provision of the wastewater regulations, pretreatment program or of orders of the local hearing authority issued under it has occurred, is occurring, or is about to occur, the local administrative officer may cause a written complaint to be served upon the alleged violator or violators.
(b) The complaint shall specify the provision or provisions of the pretreatment program or order alleged to be violated or about to be violated and the facts alleged to constitute a violation, may order that necessary corrective action be taken within a reasonable time to be prescribed in the order, and shall inform the violators of the opportunity for a hearing before the local hearing authority.
(c) Any such order shall become final and not subject to review unless the alleged violators request by written petition a hearing before the local hearing authority as provided in division (B) below, no later than 30 days after the date the order is served; provided, that the local hearing authority may review the final order as provided in Tenn. Code Ann. § 69-3-123(a)(3).
(d) Notification of violation: notwithstanding the provisions of divisions (A)(1)(a) through (A)(1)(c) above, whenever the pretreatment coordinator finds that any user has violated or is violating this subchapter, a wastewater discharge permit or order issued hereunder, or any other pretreatment requirements, the city or its agent may serve upon the user a written notice of violation. Within 15 days of the receipt of this notice, the user shall submit to the pretreatment coordinator an explanation of the violation and a plan for its satisfactory correction and prevention including specific actions. 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. Nothing in this section limits the authority of the city to take any action, including emergency actions or any other enforcement action, without first issuing a notice of violation.
(2) (a) When the local administrative officer finds that a user has violated or continues to violate this subchapter, wastewater discharge permits, any order issued hereunder or any other pretreatment standard or requirement, he or she may issue one of the following orders. These orders are not prerequisite to taking any other action against the user.
1. Compliance order. An order to the user responsible for the discharge directing that the user come into compliance within a specified time. If the user does not come into compliance within the specified time, sewer service shall be discontinued unless adequate treatment facilities, devices or other related appurtenances are installed and properly operated. Compliance orders may also contain
other requirements to address the non-compliance, including additional self-monitoring and management practices designed to minimize the amount of pollutants discharged to the sewer. A compliance order may not extend the deadline for compliance established for a federal pretreatment standard or requirement, nor does a compliance order release the user of liability for any violation, including any continuing violation.
2. Cease and desist order. An order to the user directing it to cease all such violations and directing it to immediately comply with all requirements and take needed remedial or preventive action to properly address a continuing or threatened violation, including halting operations and/or terminating the discharge.
3. Consent order. Assurances of voluntary compliance, or other documents establishing an agreement with the user responsible for non-compliance, including specific action to be taken by the user to correct the non-compliance within a time period specified in the order.
4. Emergency order.
a. Whenever the local administrative officer finds that an emergency exists imperatively requiring immediate action to protect the public health, safety or welfare, the health of animals, fish or aquatic life, a public water supply, or the facilities of the WWF, the local administrative
officer may, without prior notice, issue an order reciting the existence of such an emergency and requiring that any action be taken as the local administrative officer deems necessary to meet the emergency.
b. If the violator fails to respond or is unable to respond to the order, the local administrative officer may take any emergency action as the local administrative officer deems necessary, or contract with a qualified person or persons to carry out the emergency measures. The local administrative officer may assess the person or persons responsible for the emergency condition for actual costs incurred by the city in meeting the emergency.
(b) Appeals from orders of the local administrative officer.
1. Any user affected by any order of the local administrative officer in interpreting or implementing the provisions of this chapter may file with the local administrative officer a written request for reconsideration within 30 days of the order, setting forth in detail the facts supporting the user’s request for reconsideration.
2. If the ruling made by the local administrative officer is unsatisfactory to the person requesting reconsideration, he or she may, within 30 days, file a written petition with the local hearing authority as provided in division (B) below. The local administrative officer’s order shall remain in effect during the period of reconsideration.
3. Except as otherwise expressly provided, any notice, complaint, order or other instrument issued by or under authority of this section may be served on any named person personally, by the local administrative officer or any person designated by the local administrative officer, or service may be made in accordance with state statutes authorizing service of process in civil action. Proof of service shall be filed in the office of the local administrative officer.
(B) Hearings.
(1) Any hearing or rehearing brought before the local hearing authority shall be conducted in accordance with the following:
(a) Upon receipt of a written petition from the alleged violator pursuant to this division (B), the local administrative officer shall give the petitioner 30 days’ written notice of the time and place of the hearing, but in no case shall the hearing be held more than 60 days from the receipt of the written petition, unless the local administrative officer and the petitioner agree to a postponement;
(b) The hearing may be conducted by the local hearing authority at a regular or special meeting. A quorum of the local hearing authority must be present at the regular or special meeting to conduct the hearing;
(c) A verbatim record of the proceedings of the hearings shall be taken and filed with the local hearing authority, together with the findings of fact and conclusions of law made under division (B)(1)(d) below. The recorded transcript shall be made available to the petitioner or any party to a hearing upon payment of a charge set by the local administrative officer to cover the costs of preparation;
(d) In connection with the hearing, the chair shall issue subpoenas in response to any reasonable request by any party to the hearing requiring the attendance and testimony of witnesses and the production of evidence relevant to any matter involved in the hearing. In case of contumacy or refusal to obey a notice of hearing or subpoena issued under this section, the Chancery Court of the county has jurisdiction upon the application of the local hearing authority or the local administrative officer to issue an order requiring the person to appear and testify or produce evidence as the case may require, and any failure to obey an order of the Court may be punished by such Court as contempt;
(e) Any member of the local hearing authority may administer oaths and examine witnesses;
(f) On the basis of the evidence produced at the hearing, the local hearing authority shall make findings of fact and conclusions of law and enter decisions and orders that, in its opinion, will best further the purposes of the pretreatment program. It shall provide written notice of its decisions and orders to the alleged violator. The order issued under this division (B)(1)(f) shall be issued by the person or persons designated by the chair no later than 30 days following the close of the hearing;
(g) The decision of the local hearing authority becomes final and binding on all parties unless appealed to the courts as provided in division (B)(2) below;
(h) Any person to whom an emergency order is directed under division (A)(2)(a)4. above shall comply immediately, but on petition to the local hearing authority will be afforded a hearing as soon as possible. In no case will the hearing be held later than three days from the receipt of the petition by the local hearing authority.
(2) An appeal may be taken from any final order or other final determination of the local hearing authority by any party who is or may be adversely affected, including the pretreatment agency. Appeal must be made to the Chancery Court under the common law writ of certiorari set out in Tenn. Code Ann. § 27-8-101 et seq. 60 days from the date the order or determination is made.
(3) Show cause hearing: notwithstanding the provisions of divisions (B)(1) or (B)(2) above, the pretreatment coordinator may order any user that causes or contributes to violation(s) of this chapter, wastewater discharge permits or orders issued hereunder, or any other pretreatment standard or requirements, to appear before the local administrative officer and show cause 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, the reasons for the action, and a request that the user show cause why the proposed enforcement action should 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 authorized representative of the user. Whether or not the user appears as ordered, immediate enforcement action may be pursued following the hearing date. A show cause hearing shall not be prerequisite for taking any other action against the user. A show cause hearing may be requested by the discharger prior to revocation of a discharge permit or termination of service.
(C) Violations, administrative civil penalty. Under the authority of Tenn. Code Ann. § 69-3-125:
(1) (a) Any person including, but not limited to, industrial users, who does any of the following acts or omissions is subject to a civil penalty of up to $10,000 per day for each day during which the act or omission continues or occurs:
1. Unauthorized discharge, discharging without a permit;
2. Violates an effluent standard or limitation;
3. Violates the terms or conditions of a permit;
4. Fails to complete a filing requirement;
5. Fails to allow or perform an entry, inspection, monitoring or reporting requirement;
6. Fails to pay user or cost recovery charges; or
7. Violates a final determination or order of the local hearing authority or the local administrative officer.
(b) Any administrative civil penalty must be assessed in the following manner:
1. The local administrative officer may issue an assessment against any person or industrial user responsible for the violation;
2. Any person or industrial user against whom an assessment has been issued may secure a review of the assessment by filing with the local administrative officer a written petition setting forth the grounds and reasons for the violator’s objections and asking for a hearing in the matter involved before the local hearing authority and, if a petition for review of the assessment is not filed within 30 days after the date the assessment is served, the violator is deemed to have consented to the assessment and it becomes final;
3. Whenever any assessment has become final because of a person’s failure to appeal the assessment, the local administrative officer may apply to the appropriate court for a judgment and seek execution of the judgment, and the court, in such proceedings, shall treat a failure to appeal the assessment as a confession of judgment in the amount of the assessment;
4. In assessing the civil penalty the local administrative officer may consider the following factors:
a. Whether the civil penalty imposed will be a substantial economic deterrent to the illegal activity;
b. Damages to the pretreatment agency, including compensation for the damage or destruction of the facilities of the publicly owned treatment works, and also including any penalties, costs and attorneys’ fees incurred by the pretreatment agency as the result of the illegal activity, as well as the expenses involved in enforcing this section and the costs involved in rectifying any damages;
c. Cause of the discharge or violation;
d. The severity of the discharge and its effect upon the facilities of the publicly owned treatment works and upon the quality and quantity of the receiving waters;
e. Effectiveness of action taken by the violator to cease the violation;
f. The technical and economic reasonableness of reducing or eliminating the discharge; and
g. The economic benefit gained by the violator.
5. The local administrative officer may institute proceedings for assessment in the Chancery Court of the county in which all or part of the pollution or violation occurred, in the name of the pretreatment agency.
(c) The local hearing authority may establish by regulation a schedule of the amount of civil penalty which can be assessed by the local administrative officer for certain specific violations or categories of violations.
(d) Assessments may be added to the user’s next scheduled sewer service charge and the local administrative officer shall have such other collection remedies as may be available for other service charges and fees.
(2) Any civil penalty assessed to a violator pursuant to this section may be in addition to any civil penalty assessed by the Commissioner for violations of Tenn. Code Ann. § 69-3-115(a)(1)(F). However, the sum of penalties imposed by this section and by Tenn. Code Ann. § 69-3-115(a) shall not exceed $10,000 per day for each day during which the act or omission continues or occurs.
(D) Assessment for non-compliance with program permits or orders.
(1) The local administrative officer may assess the liability of any polluter or violator for damages to the city resulting from any person’s or industrial user’s pollution or violation, failure or neglect in complying with any permits or orders issued pursuant to the provisions of the pretreatment
program or this section.
(2) If an appeal from such assessment is not made to the local hearing authority by the polluter or violator within 30 days of notification of such assessment, the polluter or violator shall be deemed to have consented to the assessment, and it shall become final.
(3) Damages may include any expenses incurred in investigating and enforcing the pretreatment program of this section, in removing, correcting and terminating any pollution, and also compensation for any actual damages caused by the pollution or violation.
(4) Whenever any assessment has become final because of a person’s failure to appeal within the time provided, the local administrative officer may apply to the appropriate court for a judgment, and seek execution on the judgment. The court, in its proceedings, shall treat the failure to appeal the assessment as a confession of judgment in the amount of the assessment.
(E) Judicial proceedings and relief. The local administrative officer may initiate proceedings in the Chancery Court of the county in which the activities occurred against any person or industrial user who is alleged to have violated or is about to violate the pretreatment program, this section, or orders of the local hearing authority or local administrative officer. In the action, the local administrative officer may seek, and the Court may grant, injunctive relief and any other relief available in law or equity.
(F) Termination of discharge.
(1) In addition to the revocation of permit provisions in § 51.26(B)(7) of this chapter, users are subject to termination of their wastewater discharge for violations or a wastewater discharge permits, or orders issued hereunder, or for any of the following conditions:
(a) Violation of wastewater discharge 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 volume, constituents and characteristics prior to discharge;
(d) Refusal of reasonable access to the user’s premises for the purpose of inspection, monitoring or sampling;
(e) Violation of the pretreatment standards in the general discharge prohibitions in § 51.09 of chapter; and
(f) Failure to properly submit an industrial waste survey when requested by the pretreatment coordination Superintendent.
(2) The user will be notified of the proposed termination of its discharge and be offered an opportunity to show cause, as provided in division (B)(3) above, why the proposed action should not be taken.
(G) Disposition of damage payments and penalties–special fund. All damages and/or penalties assessed and collected under the provisions of this section shall be placed in a special fund by the pretreatment agency and allocated and appropriated for the administration of its wastewater fund or combined water and wastewater fund.
(H) Levels of non-compliance.
(1) Insignificant non-compliance. For the purpose of this chapter, insignificant non-compliance is considered a relatively minor infrequent violation of pretreatment standards or requirements. These will usually be responded to informally with a phone call or site visit but may include a notice of violation (NOV).
(2) Significant non-compliance.
(a) Per 1200-4-14-.08(6)(b)8:
1. Chronic violations of wastewater discharge limits, defined here as those in which 66% or more of all of the measurements taken for each parameter taken during a six-month period exceed (by any magnitude) a numeric pretreatment standard or requirement, including instantaneous limit;
2. Technical review criteria (TRC) violations, defined here as 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 numeric pretreatment standard or requirement, including instantaneous limits multiplied by the applicable TRC (TRC = 1.4 for BOD, TSS, fats, oils and grease, and 1.2 for all other pollutants except pH). TRC calculations for pH are not required;
3. Any other violation of a pretreatment standard or requirement (daily maximum of longer-term average, instantaneous limit or narrative standard) that the WWF determines has caused, alone or in combination with other discharges, interference or pass through (including endangering the health of POTW personnel or the general public);
4. Any discharge of a pollutant that has caused imminent endangerment to human health, welfare or to the environment or has resulted in the WWF’s exercise of its emergency authority under § 51.29(A)(2)(a)4., Emergency Order, to halt or prevent such a discharge;
5. Failure to meet, within 90 days after the schedule date, a compliance schedule milestone contained in a local control mechanism or enforcement order for starting construction, completing construction or attaining final compliance;
6. Failure to provide, within 45 days after their due date, required reports such as baseline monitoring reports, 90-day compliance reports, periodic self-monitoring reports and reports on compliance with compliance schedules;
7. Failure to accurately report non-compliance;
8. Any other violation or group of violations, which may include a violation of best management practices, which the WWF determines will adversely affect the operation of implementation of the local pretreatment program; and
9. Continuously monitored pH violations that exceed limits for a time period greater than 50 minutes or exceed limits by more than 0.5 s.u. more than eight times in four hours.
(b) Any significant non-compliance violations will be responded to according to the Enforcement Response Plan Guide Table (Appendix A).
(I) Public notice of the significant violations. The Superintendent shall publish annually, in a newspaper of general circulation that provides meaningful public notice within the jurisdictions served by the WWF, a list of the users which, at any time during the previous 12 months, were in significant non-compliance with applicable pretreatment standards and requirements. The term significant non- compliance shall be applicable to all significant industrial users (or any other industrial user that violates divisions (I)(3), (I)(4) or (I)(7) below) and shall mean:
(1) Chronic violations of wastewater discharge limits, defined here as those in which 66% or more of all the measurements taken for the same pollutant parameter taken during a six-month period exceed (by any magnitude) a numeric pretreatment standard or requirement, including instantaneous limits;
(2) Technical review criteria (TRC) violations, defined here as those in which 33% or more of wastewater measurements taken for each pollutant parameter during a six-month period equals or exceeds the product of the numeric pretreatment standard or requirement including instantaneous limits, multiplied by the applicable criteria (1.4 for BOD, TSS, fats, oils and grease, and 1.2 for all other pollutants except pH), TRC calculations for pH are not required;
(3) Any other violation of a pretreatment standard or requirement as defined by § 51.31 (daily maximum, long term average, instantaneous limit or narrative standard) that the Superintendent determines has caused, alone or in combination with other discharges, interference or pass through, including endangering the health of WWF personnel or the general public;
(4) Any discharge of a pollutant that has caused imminent endangerment to the public or to the environment, or has resulted in the Superintendent’s exercise of its emergency authority to halt or prevent such a discharge;
(5) Failure to meet, within 90 days of the scheduled date, a compliance schedule milestone contained in an individual wastewater discharge permit or enforcement order for starting construction, completing construction or attaining final compliance;
(6) Failure to accurately report non-compliance;
(7) Any other violation(s), which may include a violation of best management practices, which the Superintendent determines will adversely affect the operation or implementation of the local pretreatment program; or
(8) Continuously monitored pH violations that exceed limits for a time period greater than 50 minutes or exceed limits by more than 0.5 s.u. more than eight times in four hours.
(J) Criminal penalties. In addition to civil penalties imposed by the local administrative officer and the state, any person who willfully and negligently violates permit conditions is subject to criminal penalties imposed by the state and the United States.
(Ord. 699, passed 10-26-2009)