(a) Enforcement Response Plan (ERP). The ERP is used as guidance when implementing enforcement actions to assure that users of the City's wastewater facilities comply with the provisions of this chapter. As a separate document, the ERP may be updated periodically as necessary, without necessitating a modification to this chapter. Copies of the ERP are available in the Pretreatment office, located at the Wastewater Treatment Facility.
(b) Notice of Violation (NOV).
(1) When the Pretreatment Coordinator finds that a user has violated (or continues to violate) any provision of this chapter, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, the Pretreatment Coordinator may serve upon that user a written Notice of Violation. The Pretreatment Coordinator may select any means of service that is reasonable under the circumstances.
(2) Unless a report due date is specified, an explanation of the violation and a plan for the satisfactory correction and prevention thereof, to include specific required actions, shall be submitted by the user to the Pretreatment Coordinator within ten days of the receipt of this notice. 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 shall limit the authority of the Director to take any action, including emergency actions or any other enforcement action, without first issuing a Notice of Violation.
(c) Consent Orders. The Pretreatment Coordinator may enter into Consent Orders, assurances of voluntary compliance, or other similar documents establishing an agreement with any user responsible for non-compliance. Such documents will include specific action to be taken by the user to correct the non-compliance within a time period specified by the document. Such documents shall be judicially enforceable. Use of a Consent Order shall not be a bar against, or prerequisite for, taking any other action against the user.
(d) Show Cause Hearing. The Pretreatment Coordinator may order a user that has violated or continues to violate, any provision of this chapter, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, to appear before the Pretreatment Coordinator 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 such action, and a request that the user show cause why the proposed enforcement action should not 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. Such notice may be served on any authorized representative of the user. A show cause hearing shall not be a bar against, or prerequisite for, taking any other action against the user.
(e) Compliance Orders. When the Pretreatment Coordinator finds that a user has violated or continues to violate any provision of this chapter, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, the Director may issue an order to the user responsible for the discharge directing that the user come into compliance within a time specified in the order. Compliance Orders may require users to refrain from certain activities, install additional pretreatment equipment, increase self-monitoring, use best management practices designed to minimize the amount of pollutants discharged to the sewer. If the user does not come into compliance within the time specified in the order, sewer service may be discontinued. Issuance of a compliance order shall not be a bar against, or a prerequisite for, taking any other action against the user. For any effluent violations the user must notify POTW within twenty-four hours vocally and a follow up five-day written report explaining why violation occurred and a plan to resolve the issue. This includes a thirty-resample requirement.
(f) Cease and Desist Orders.
(1) When the Pretreatment Coordinator finds that a user has violated (or continues to violate) any provision of this chapter, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, or that the user's past violations are likely to recur, the Pretreatment Coordinator may issue an order to the user directing it to cease and desist all such violations and directing the user to:
A. Immediately comply with all requirements; and
B. Take such appropriate remedial or preventive action as may be needed to properly address a continuing or threatened violation, including halting operations and/or terminating the discharge.
(2) Issuance of a cease and desist order shall not be a bar against, or a prerequisite for, taking any other action against the user.
(g) Administrative Assessments.
(1) When the Director finds that a user has violated or continues to violate any provision of this chapter, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, the Safety/Service Director may impose a penalty assessment in an amount not less than two hundred fifty dollars ($250.00) and not to exceed ten thousand dollars ($10,000). Such assessments shall be levied on a per violation, per day basis. In the case of monthly or other long-term average discharge limits, assessments may be levied for each day during the period of violation. Said administrative assessments shall constitute a sewer service surcharge, and shall be subject to collection in the same manner as all other sewer utility rates, charges, and penalties.
(2) Unless other arrangements have been made with, and authorized by the Director, unpaid charges, assessments, and penalties shall accrue thereafter at a rate of one percent per month. After ninety days, if charges, assessments, and penalties have not been paid, the Director may revoke the user's discharge permit. A lien against the user's property shall be sought for unpaid charges, fines, and penalties.
(3) Users desiring to appeal and dispute such assessments shall file a written request for the Director to reconsider the assessment along with full payment of the assessment amount within ten days of being notified of the assessment. Upon receipt of a timely appeal, the Director shall set a date and time for an appeal hearing, but in no case shall the hearing be set more than thirty days from the receipt of the timely notice of appeal. The appellant shall be notified in writing of the date, time, and place for the appeal hearing. The Director or his/her designee shall serve as the Hearing Examiner. In the event the user's appeal is successful, any payments made shall be returned to the user. Affirmation or modification of an administrative assessment by the Director shall relate back to the original date of assessment.
(4) The Director shall recover the costs of preparing administrative enforcement actions, such as notices and orders, including the cost of additional inspections, sampling and analysis, and may add them to the assessment.
(5) Issuance of an administrative assessment shall not be a bar against, or a prerequisite for, taking any other action against the user.
(6) Users seeking judicial review of administrative assessments shall do so by filing a Petition for Review in the Montgomery County Common Pleas Court within thirty days of the decision of the Director.
(h) Emergency Suspensions.
(1) The Director may immediately suspend a user's discharge (after informal notice to the user) whenever such suspension is necessary to stop an actual or threatened discharge that reasonably appears to present or cause an imminent or substantial endangerment to the health or welfare of persons.
(2) The Director may also immediately suspend a user's discharge (after informal notice and opportunity to respond) that threatens to interfere with the operation of the POTW, or that presents or may present an endangerment to the environment.
(3) Any user notified of a suspension of its discharge shall immediately stop or eliminate its contribution. In the event of a user's failure to immediately comply voluntarily with the suspension order, the Director shall take such steps as deemed necessary, including immediate severance of the sewer connection, to prevent or minimize damage to the POTW, its receiving stream, or endangerment to any individuals.
(4) The Director shall allow the user to recommence its discharge when the user has demonstrated to the satisfaction of the Director that the period of endangerment has passed, unless the termination proceedings in are initiated against the user.
(5) A user that is responsible, in whole or in part, for any discharge presenting imminent endangerment shall submit a detailed written statement, describing the causes of the harmful contribution and the measures taken to prevent any future occurrence, to the Director prior to the date of any show cause or termination hearing.
(6) Nothing in this section shall be interpreted as requiring a hearing prior to any emergency suspension under this section.
(i) Termination of Discharge (Non-Emergency).
(1) Any user that violates the following conditions is subject to discharge termination:
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; or
E. Violation of the pretreatment standards.
(2) Such user will be notified of the proposed termination of its discharge and be offered an opportunity to show cause why the proposed action should not be taken. Exercise of this option by the Director shall not be a bar to, or a prerequisite for, taking any other action against the user.
(j) Cost Recovery. Any user violating any of the provisions of this chapter, or who causes a discharge that results in or contributes to pass-through, interference, accumulation in sludge or biosolids, violation of any federal, state or local requirement, a deposit or obstruction, or causes damages to or impairs the City sanitary sewers or wastewater treatment facility shall be liable to the City for any expense, loss, fine or damage caused by such discharge including the costs incurred in investigating, monitoring, and prosecuting such violation or discharge. The Director shall bill the user for costs incurred as a result of the violation or discharge. Refusal to pay the assessed costs shall constitute a violation of this chapter. The Director may disconnect from the City's wastewater facilities any user who refuses or fails to pay the assessed costs.
(k) Appeal Procedures.
(1) Appeals.
A. Any user seeking to dispute a Notice of Violation, order, assessment, or other action of the Director, other than issuance of a Wastewater Discharge Permit, may file an appeal.
B. The appeal shall be filed in writing and received by the Director, in writing, within ten days of the receipt of the disputed action, along with full payment of any assessment. If the notice of appeal is not received by the Director and the assessment is not paid to the Director within the ten-day period, the right to an appeal is waived. The notice of appeal shall state with particularity the basis upon which the appellant is disputing the action taken.
C. Upon receipt of a timely appeal, the Director shall set a date and time for an appeal hearing, no more than thirty days from the receipt of the timely notice of appeal. The Director may postpone or continue any hearing or upon motion of the appellant or the Director. In setting the hearing date, the Director shall consider: (1) the number and complexity of the issues to be resolved; (2) the number of witnesses and their availability; (3) the amount of civil discovery reasonably necessary to prepare for the hearing; and (4) the availability of the Hearing Examiner. The appellant shall be notified in writing of the date, time, and place for the appeal hearing. The Director or his/her designee shall serve as the Hearing Examiner. The Hearing Examiner shall confer with the parties or their legal counsel to establish a case management schedule to govern the appeal and the hearing, including an appropriate time for civil discovery, to be governed by the Ohio Rules of Civil Procedure.
(2) Appeal hearing.
A. The hearing examiner may admit and give probative effect to evidence that possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs. The hearing examiner shall give effect to the rules of privilege recognized by law. The hearing examiner may exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence. Factual issues shall be resolved by a preponderance of evidence.
B. Documentary evidence may be received in the form of copies or excerpts or by incorporation by reference.
C. Every party, or its legal counsel, shall have the right to cross examine witnesses who testify and shall have the right to submit rebuttal evidence; provided that the hearing examiner may control the manner and extent of the cross examinations and rebuttal. The hearing shall be recorded or otherwise transcribed to create a record.
D. The Hearing Examiner may take notice of judicially cognizable facts.
E. The burden of proof and proceeding shall reside with the appellant.
(3) Appeal conclusion. Within ten days of the conclusion of the hearing, the hearing examiner shall determine if the disputed action was proper, and shall approve, modify, or rescind the disputed action. The Hearing Examiner may postpone or continue the ten-day period or upon motion of the appellant or the Director to allow for: (1) transcription of the record, or (2) filing of post-hearing proposed findings of fact and conclusions of law by the parties.
The final determination of the Hearing Examiner shall be in writing, and all parties shall be provided a copy of the final determination.
(4) Judicial review of appeal. Any party, including the City, the Ohio Environmental Protection Agency, the United States Environmental Protection Agency, or the user/appellant, is entitled to a review of the final determination of the Hearing Examiner in the Darke County Court of Appeal. Cases shall be filed and proceed according to the Darke County Rules of Civil Procedure.
(a) Injunctive Relief.
(1) When the Director finds that a user has violated or continues to violate any provision of this chapter, a wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or requirement, the Director may petition the Darke County Court through the City's Attorney for the issuance of a temporary or permanent injunction, as appropriate, which restrains or compels the specific performance of the wastewater discharge permit, order, or other requirement imposed by this chapter on activities of the user.
(2) The Director may also seek such other action as is appropriate for legal and/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. Injunctive relief shall be nonexclusive to other remedies available to the Director.
(b) Civil Penalties.
(1) A user that has violated or continues to violate any provision of this chapter, a wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or requirement shall be liable to the Director for a maximum civil penalty of ten thousand dollars ($10,000) 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. In addition to any civil penalty, the Director may recover from the user an additional civil penalty equal to the economic benefit obtained by the user as a result of its violation.
(2) The Director may recover reasonable attorney's 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.
(3) 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, 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.
(4) Filing a suit for civil penalties shall not be a bar against, or a prerequisite for taking any other action against a user.
(c) Criminal Prosecution.
(1) A user who willfully or negligently violates any provision of this chapter, a wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or requirement shall, upon conviction, be guilty of a gross misdemeanor, punishable by an assessment of not more than ten thousand dollars ($10,000) and/or one year in jail. Each day a violation occurs shall constitute a separate offense.
(2) A user who willfully or negligently introduces any substance into the POTW that causes personal injury or property damage shall, upon conviction, be guilty of a gross misdemeanor and be subject to a penalty of not more than ten thousand dollars ($10,000) and/or one year in jail. Each day a violation occurs shall constitute a separate offense. This penalty shall be in addition to any other cause of action for personal injury or property damage available under state law.
(3) A user who knowingly makes any false statements, representations, or certifications in any application, record, report, plan, or other documentation filed, or required to be maintained pursuant to this chapter, a wastewater discharge permit, or an order issued hereunder, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required under this chapter shall, upon conviction, be guilty of a gross misdemeanor, and punished by an assessment of not more than ten thousand dollars ($10,000) and/or one year in jail. Each day a violation occurs shall constitute a separate offense.
(4) In addition, the user shall be subject to:
A. The provisions of 18 USC Section 1001 relating to fraud and false statements;
B. The provisions of Sections 309(c)(4) of the Clean Water Act, as amended, governing false statements, representation, or certification; and
C. The provision of Section 309(c)(6) of the Clean Water Act, regarding responsible corporate officers.
(5) In the event of a second or subsequent conviction, a user shall be punished by an assessment of not more than twenty thousand dollars ($20,000) per violation, per day, or imprisonment for not more than two years, or both.
(d) Remedies Non-exclusive. The Director reserves the right to take any, all, or any combination of these actions against a non-compliant user. Enforcement of pretreatment violations will generally be in accordance with the City's enforcement response plan. However, the Director reserves the right to take other action against any user when the circumstances warrant. Further, the Director is empowered to take more than one enforcement action against any non-compliant user. These actions may be taken concurrently.
(a) Performance Bonds. The Director may decline to issue or reissue a wastewater discharge permit to any user that has failed to comply with any provision of this chapter, a previous wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement unless such user first files a satisfactory bond, payable to the City, in a sum not to exceed a value determined by the Director to be necessary to achieve consistent compliance.
(b) Financial Assurances. The Director may decline to issue or reissue a wastewater discharge permit to any user that has failed to comply with any provision of this chapter, a previous wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, unless the user first submits proof that it has obtained financial assurance sufficient to meet pretreatment requirements, and/or restore or repair damage to the POTW caused by its discharge.
(c) Water Supply Severance. Whenever a user has violated or continues to violate any provision of this chapter, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement, water service to the user may be severed. Service will only recommence, at the user's expense, after it has satisfactorily demonstrated its ability to comply.
(d) Public Nuisances. A violation of any provision of this chapter, wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or requirement, is hereby declared a public nuisance and shall be corrected or abated as directed by the Director.
(e) Contractor Listing. Users that have not achieved compliance with applicable pretreatment standards and requirements are not eligible to receive a contractual award for the sale of goods or services to the City. Existing contracts for the sale of goods or services to the City held by a user found to be in significant non-compliance with pretreatment standards or requirements may be terminated at the discretion of the City.
(f) Publication of Violations and/or Enforcement Actions. The Director may publish violations and/or enforcement actions at any time, where monetary assessments may be inappropriate in gaining compliance, or in addition to monetary assessments. Violations and/or enforcement actions may also be published when the Director feels that public notice should be made, or at other appropriate times. The cost of such publications will be recovered from the user.
(1) At least annually, the Pretreatment Coordinator shall publish a list of all industrial users which at any time during the previous twelve months were in significant noncompliance with applicable pretreatment requirements. For the purposes of this provision, an industrial user is in significant noncompliance if its violations meet one or more of the following criteria:
A. Chronic violations of wastewater discharge limits, defined herein as those in which sixty-six percent or more of all of 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.
B. Technical review criteria (TRC) violations, defined herein as those in which thirty-three percent or more of wastewater measurements taken for each pollutant parameter taken during a six-month period equals or exceeds the product of the numeric pretreatment standard or requirement including instantaneous limits multiplied by the applicable TRC (TRC = 1.4 for BOD, TSS, fats, oil and grease, and 1.2 for all other pollutants except pH).
C. Any other violation of a pretreatment standard or requirement (daily maximum, long-term average, instantaneous limit, or narrative standard) that the Pretreatment Coordinator 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).
D. Any discharge of a pollutant that has caused imminent endangerment to human health, welfare or the environment or has resulted in the POTW's exercise of emergency authority to halt or prevent such a discharge.
E. Failure to meet, within ninety days after the schedule date, a compliance schedule milestone contained in a wastewater discharge permit or enforcement order for starting construction, completing construction or attaining final compliance.
F. Failure to provide, within forty-five days after the due date, any required reports, such as baseline monitoring reports, ninety-day compliance reports, periodic self-monitoring reports and reports on compliance with compliance schedules.
G. Failure to accurately report noncompliance.
H. Any other violation(s), which may include a violation of Best Management Practices, which the Pretreatment Coordinator determines will or has adversely affected the operation or implementation of the City pretreatment program.
(a) Bypass.
(1) For the purposes of this section,
A. “Bypass” means the intentional diversion of wastestreams from any portion of a user's treatment facility.
B. “Severe property damage” means substantial physical damage to property, damage to the treatment facilities that causes them to become inoperable, or substantial and permanent loss of natural resources that 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.
(2) A user may allow any bypass to occur that does not cause applicable 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 1045.08.4(a)(4) and (5) hereof.
(3) Sampling of the bypass wastestream is required whether the bypass was anticipated or unanticipated. The pollutants to be analyzed shall be all pollutants listed in the user's permit. If the user is not permitted, then the pollutants to be analyzed shall be the pollutants listed in the latest approved local limits for the discharge of wastewater under the Industrial Pretreatment Program, Department of Wastewater, City of Greenville.
(4) Notice.
A. If a user knows in advance of the need for a bypass, it shall submit prior notice to the POTW, at least ten days before the date of the bypass, if possible.
B. A user shall submit oral notice to the Director of an unanticipated bypass that exceeds applicable pretreatment standards within twenty-four hours from the time it becomes aware of the bypass. A written submission shall also be provided within five 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. The POTW may waive the written report on a case-by-case basis if the oral report has been received within twenty-four hours.
(5) Prohibition of bypass.
A. Bypass is prohibited, and the POTW 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 that occurred during normal periods of equipment downtime or preventive maintenance; and
3. The user submitted notices as required under 1045.08.4(a)(4).
B. The POTW may approve an anticipated bypass, after considering its adverse effects, if the POTW determines that it will meet the three conditions listed in 1045.08.4(a)(5)A.1. through 3.
(Ord. 23-145. Passed 12-19-23.)