(A) Any person who violates or fails to comply with any provision of this chapter or of the rules and regulations of the Board of Public Works or administrative orders pertaining thereto, shall be subject to a fine of up to $2,500 per day as set out at § 10.99 of the City of Fort Wayne Code of Ordinances or as otherwise provided by IC 34-28-5. Each day that such violation(s) or noncompliance continues shall constitute a separate offense.
(B) A user who has violated, or continues to violate, any provision of this chapter, an individual wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or requirement shall be liable to the City for a minimum civil penalty of $1,000 per violation, per day. In the case of a monthly or other long-term average discharge limit, penalties shall accrue for each day during the period of the violation.
(C) The Superintendent may recover reasonable attorneys' fees, court costs, and other expenses associated with enforcement activities, including sampling and monitoring expenses, and the cost of any actual damages incurred by the City.
(D) In determining the amount of civil liability, the Court shall take into account all relevant circumstances, including, but not limited to, the extent of harm caused by the violation, the magnitude and duration of the violation, any economic benefit gained through the user's violation, corrective actions by the user, the compliance history of the user, and any other factor as justice requires.
(E) Filing a suit for civil penalties shall not be a bar against, or a prerequisite for, taking any other action against a user.
(F) Upset.
(1) 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.
(2) An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the requirements of division (F)(3), below, are met.
(3) A user who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that:
(a) An upset occurred and the user can identify the cause(s) of the upset;
(b) The facility was at the time being operated in a prudent and workman-like manner and in compliance with applicable operation and maintenance procedures; and
(c) The user has submitted the following information to the Superintendent within 24 hours of becoming aware of the upset if this information is provided orally, a written submission must be provided within five days:
1. A description of the indirect discharge and cause of noncompliance;
2. The period of non-compliance, including exact dates and times or, if not corrected, the anticipated time the noncompliance is expected to continue; and
3. Steps being taken and/or planned to reduce, eliminate, and prevent recurrence of the noncompliance.
(4) In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof.
(5) 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.
(6) Users shall control production of 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. G-5-18, passed 3-13-18)