§ 51.34 FOOD SERVICE ESTABLISHMENT ENFORCEMENT RESPONSE GUIDE.
   (A)   Purpose. This Food Service Establishment Enforcement Response Guide (FSE-ERG) was developed to ensure a consistent response to all food service establishments that cause, or have the potential to cause, interference, obstruction, sanitary sewer overflows, bypasses or storm water inflow to the City Utilities Board wastewater collection system and WWTP. Food service establishments are nondomestic users and are monitored by the City Utilities Board Pretreatment Section. This FSE-ERG is intended to be used for food service establishments only. Refer to the City Utilities Board Fats, Oils and Grease Management Policy for additional information on the City Utilities Board FOG management program.
   (B)   Significant non-compliance of wastewater discharge limits. The E.P.A. has defined “significant non-compliance” as violations that meet one or more of the following criteria:
      (1)   “Significant non-compliance.” Per 1200-4-14-.08(6)(b)8:
         (a)   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;
         (b)   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;
         (c)   Any other violation of a pretreatment standard or requirement (daily maximum or 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 WWF personnel or the general public);
         (d)   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;
         (e)   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;
         (f)   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;
         (g)   Failure to accurately report non-compliance;
         (h)   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 or implementation of the local pretreatment program; and
         (i)   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.
      (2)   Generally, an isolated instance of non-compliance or a Category 0 violation can be met with an informal response or non-compliance notification (NCN). Any Category 1 to Category 4 violations should be responded to with an enforceable order that requires a return to compliance by a specific deadline.
   (C)   Non-compliance notification (NCN).
      (1)   Generally issued by the inspector/field personnel, the non-compliance notification (NCN) is an official communication from City Utilities to the non-compliant user that deficiencies have been identified. Most NCNs allow the non-compliant user a 30-day period to respond to the deficiencies. Failure to respond to an NCN will result in the issuance of a notice of violation.
      (2)   NCNs may be issued to food service establishments for the following deficiencies:
         (a)   Grease interceptor effluent (outlet) T not acceptable;
         (b)   Grease interceptor effluent (outlet) T not visible or accessible for inspection;
         (c)   Grease interceptor mid-wall baffle or side walls indicates deterioration of concrete;
         (d)   Grease interceptor FOG and food solids layer are greater than 25% of the capacity of the interceptor tank, or interceptor was not pumped within last 90 days;
         (e)   FOG evident in downstream sewer line from this facility;
         (f)   Facility has no grease control equipment installed;
         (g)   No records of interceptor or trap maintenance available at the facility;
         (h)   Sewer cleanout covers missing or damaged, allowing rainfall inflow to sanitary sewer; and
         (i)   FOG on ground, around recycle bin or dumpster, causing storm water impact.
   (D)   Notice of violation (NOV). Generally issued by the inspector/field personnel, the notice of violation (NOV) is an official communication from the Department to the non-compliant user that informs the user that the pretreatment violation has occurred. The NOV is issued for relatively minor or infrequent violations of pretreatment standards and requirements and should be issued within five working days of the identification of a violation. A NOV does not contain assessment of penalties or cost recovery. The NOV provides the user with an opportunity to correct the non-compliance on its own initiative rather than according to a schedule of actions determined by the Department. The NOV documents the initial attempts of the Department to resolve the non-compliance. Authenticated copies of NOVs may serve as evidence in judicial proceedings.
   (E)   Schedule of compliance. A schedule of compliance is a detailed list of the steps to be taken by a non-compliant industry whereby compliance with all pretreatment regulations will be achieved. This schedule shall contain increments of progress in the form of dates for the commencement and completion of major events leading to the construction and operation of additional pretreatment required for the user to meet the applicable pretreatment standards (e.g., hiring an engineer, completing preliminary plans, executing contracts for components, commencing construction and the like).
   (F)   Administrative penalties. An administrative penalty is a monetary penalty assessed by the Department for violations of pretreatment standards and requirements. Administrative penalties are to be used as an escalated enforcement action and are punitive in nature and are not related to a specific cost born by the Department. Instead, the amount of the penalty should recapture any economic benefit gained by non-compliance and/or deter future violations. An administrative order is to be used to assess an administrative penalty.
   (G)   Administrative orders. Administrative orders (AO) are to be issued by the Industrial Waste Coordinator, or the Director. Administrative orders are enforcement documents that direct users to undertake and/or to cease specified activities. Administrative orders are to be used as the first formal response to significant non-compliance, and may incorporate compliance schedules, administrative penalties, assessments for costs incurred during investigation and/or enforcement, attorneys’ fees, assessments for damages and termination of service. The Department has adopted four general types of AOs: compliance orders, show cause orders, cease and desist orders and agreed orders.
      (1)   Compliance order. A compliance order directs the user to achieve or restore compliance by a specified date and is the primary means of assessing penalties and costs. The compliance order will document the non-compliance and state required actions to be accomplished by specific dates and is issued by the Director.
      (2)   Show cause order. An order to show cause directs the user to appear before the Department, explain its non-compliance, and show cause why more severe enforcement action should not be pursued. The hearing is open to the public and may be formal (i.e., conducted according to the rules of evidence, with verbatim transcripts and cross-examination of witnesses) or informal. The results of all hearings, along with any data and testimony (recorded by tape machine or stenographer) submitted as evidence, are available to the public and may serve as evidentiary support for future enforcement actions.
      (3)   Cease and desist order. A cease and desist order directs a non-compliant user to cease illegal or unauthorized discharge immediately or to terminate discharge altogether. To preserve the usefulness of this order in emergency situations, penalties should not be assessed in this document. A cease and desist order will be used in situations where the discharge is causing interference, pass through, environmental harm, or otherwise creating an emergency situation. The order may be issued immediately upon discovery of an emergency situation or following a hearing. In an emergency, the order to cease and desist may be given by telephone with a subsequent written order to be served by the Department before the close of business on the next working day. If the user fails to comply with the order, the Department may take independent action to halt the discharge.
      (4)   Agreed order.
         (a)   The agreed order is an agreement between the Department and the user.
         (b)   The agreed order normally contains three elements:
            1.   Compliance schedules with specific milestone dates;
            2.   Stipulated penalties, damages and/or remedial actions; and
            3.   Signature by the Director and the user representative.
         (c)   An agreed order is appropriate when the user assumes the responsibility for its non- compliance and is willing (in good faith) to correct the causes.
   (H)   Penalty assessment.
      (1)   Determining a penalty amount that reflects the violation’s significance is extremely important. If the penalty is too small, its deterrent value is lost and the user may regard the amount as a tax or nominal charge to pollute. If the penalty is too great, it could bankrupt the industry (making necessary investment in pretreatment equipment impossible or potentially forcing unnecessary closure). The Department has categorized the various types of violations, and assigned a penalty range to each category. Penalty categories are determined by using the Enforcement Response Table (Appendix A). All penalty assessments will be approved and signed by the Director or his or her designee. Penalty amounts are considered to be an economic deterrent to the illegal activity. Penalty ranges have been designed to recover any economic benefit gained by the violator through non-compliance.
      (2)   Assessments for damages or destruction of the facilities of the POTW, and 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 enforcement, are not part of this penalty assessment procedure.
   (I)   Abbreviations.
AO
Administrative order
Etowah Utilities
EUB
FOG
Fats, oils and grease
FSE
Food service establishment
GCE
Grease control equipment
NCN
Non-compliance notification
NOV
Notice of violation
POTW
Publicly owned treatment works
SC
Show cause
SPS
Sewerage pumping station
WWTP
Wastewater treatment plant
 
   (J)   City Utilities Board Food Service Establishment Enforcement Response Guide; incident.
      (1)   Failure to install grease control equipment;
      (2)   Grease interceptor structural failure (baffle wall collapsed, walls deteriorated, tank leaking, infiltration/inflow in tank);
      (3)   Failure to install proper effluent (outlet T); or
      (4)   No access to effluent (outlet T) to determine compliance.
 
Incident
Action Taken
(a)
Initial notification - non-compliance notification of problem, with response due date
Issue NCN- 30 day deadline for response
(b)
Second notification - failure to comply with NCN. Issue NOV and 15 additional days to comply
Issue NOV - 15 day deadline
(c)
Third notification - issue $500 AO and 30 additional days Issue AO to comply
Issue AO $500
(d)
Fourth notification - failure to comply with AO
Cutoff water supply
 
      (5)   Facility contributing FOG to downstream manhole, SPS, or WWTP. Classify degree of impact for appropriate response:
 
Impact
Action Taken
(a)
Slight FOG impact (slight coating of FOG in POTW less than 1/4 in. coverage - 1/2 of pipe)
Issue NCN- 30 days for response
(b)
Moderate FOG impact (moderate coating FOG in POTW less than 1/2 in. coverage - 1/2 of pipe)
NOV - 30 day deadline reimburse cleaning costs to city, require interceptor mid-wall sweep
(c)
Heavy FOG impact (heavy coating FOG in POTW, causing obstruction and/or interference in sewer line)
Reimburse cleaning costs to city and AO $1,000 require interceptor mid-wall sweep
(d)
Fourth notification - Failure to comply with AO
Cutoff water supply
 
      (6)   Grease control equipment not maintained (pumped or cleaned) *Interceptor has > 25% FOG and solids, or > 90 days *Trap cleaned > monthly.
 
Impact
Action Taken
(a)
1 incident within 24-month period
NCN - 30 days
(b)
2 incidents within 24-month period
NOV - 15 days
(c)
3 incidents within 24-month period
NOV - $250
(d)
4 incidents within 24-month period
Cutoff water supply until FSE pumps GCE + $500
 
      (7)   No records of grease control equipment maintenance or cleaning at facility.
 
Impact
Action Taken
(a)
1 incident within 24-month period
NCN - 30 days
(b)
2 incidents within 24-month period
NOV - 15 days
(c)
3 incidents within 24-month period
NOV - $100
(d)
4 incidents within 24-month period.
Cutoff water supply + $500
 
      (8)   Failure to allow access for inspectors to adequately show cause: inspect tank.
      (9)   Safety hazard at grease control equipment area (i.e., missing manhole cover, manhole cover damaged or not made of material of suitable strength): notify Health Department/Codes and issue NCN.
      (10)   Facility in violation of numerical FOG limit
 
Limit Violation
Action Taken
(a)
FOG concentration in excess of limit but less than 2x of limit
NOV - $100
(b)
FOG concentration between 2x to 4x of limit
NOV - $250
(c)
FOG concentration in excess of 4 x limit
NOV - $300—$500
 
      (11)   Facility using additives or chemicals that emulsify or otherwise cause FOG to be discharged to the city sewer system; show cause.
      (12)   Failure of new facility, or an existing facility that upgrades their facility, to notify EUB, or submit information: issue NOV and require GCE.
(Ord. 699, passed 10-26-2009)