(A) Established procedures. The POTW shall establish procedures to be followed in the event of noncompliance, including notice of violation, establishing compliance schedules, show cause hearings, and proceedings. The procedures shall be in accordance with this chapter, the POTW's industrial pretreatment program administrative compliance guidance manual, and applicable state and federal regulations.
(B) Notice of violations. Whenever the POTW finds any user has violated or is violating this chapter, PTD, or any limitation or condition for compliance, the POTW may serve the person a written notice stating the nature of the violation. Within the time stipulated in the notice, a plan for corrective action shall be submitted to the POTW by the user in accordance with the POTW’s industrial pretreatment program administrative compliance guidance manual.
(C) Orders to users.
(1) Generally. Whenever the Village Director has determined that any user has violated this chapter or other applicable laws or regulations which the village is authorized to enforce, the Village Director may issue an order to take actions deemed appropriate by the Village Director under the circumstances.
(2) Types of orders. The following types of orders may be issued by the Village Director:
(a) Compliance order. An administrative order directing a user to achieve or restore compliance by a date specified in the order;
(b) Consent order. An administrative order embodying a legally enforceable agreement between the POTW and a user designed to restore the user to compliance status;
(c) Cease and desist order. An administrative order directing a user to halt illegal or unauthorized discharges; and
(d) Show cause order. An administrative order directing a user to appear before the Village Director or a hearing officer in order to explain its noncompliance and show cause why more severe enforcement actions should not be taken.
(3) Content of orders. Any order issued by the Village Director shall contain the facts and reasons and grounds for its issuance, and the remedial action ordered as well as the time within which the action shall be taken. No order shall be deemed insufficient, however, for inconsequential errors and omissions in the facts and reasons and ground for the order. If any user deems the content of the order to contain insufficient information, it may ask the Village Director for additional information. Multiple orders may be issued simultaneously or in combination as a single order by the Village Director with respect to a single user.
(D) Civil violations.
(1) Civil citations. The Village Director may issue a civil citation with or without an order against any user deemed to be in violation of this chapter and determine the civil administrative penalty, if any, to be imposed consistent with the provisions of division (H) below.
(2) Service. The citation shall be served upon the user either by personal delivery or by first-class mail addressed to the user, except that an immediate cease and desist order may be written or oral, and may be served by telephone.
(3) Content of citation. The citation shall specify the following:
(a) Date and time of issuance;
(b) Date(s), time(s), and place(s) of violation, the nature of the violation, the substances discharged, where ascertainable, and the volume of the discharge, where applicable;
(c) Reference to the pertinent section of this chapter under which the violation is charged;
(d) Reference to the pertinent section of this chapter establishing penalties for the violation;
(e) The amount of the penalty, if any; and
(f) The right of the alleged violator to present to the Village Director written explanations, information, or other materials in answer to the citation, including any defenses.
(4) Notice to municipality. Any citation issued pursuant to this section upon any user within the corporate limits of any contract municipality shall be served upon the municipality in the manner provided by division (D)(2) above and the municipality shall be given notice, also in the manner provided in division (D)(2) above of all meetings, hearings, and proceedings subsequently conducted pursuant to the citation.
(E) Informal conference. An informal conference with the Village Director may be requested, in writing, by any user deeming itself aggrieved by any notice of violation, or other administrative enforcement action by the Village Director within five calendar days after the notice of the violation or notice of other enforcement action has been served upon the user. The purposes of the informal conference are to discuss the matter by which the user deems itself aggrieved and to attempt to reach a settlement of the matter agreeable to the user and the village. The Village Director is not required to reach any conclusion or provide a decision as a result of an informal conference. If such a request is received, the Village Director shall hold the informal conference within ten calendar days of receipt of the request. A user is not required to request or participate in an informal conference as a pre-condition to requesting and participating in a hearing under division (G) below, nor is a user required to request or participate in a hearing under division (G) below, as a precondition to requesting and participating in an informal conference. If a hearing is held under division (G) below, the hearing is not an appeal from an informal conference.
(F) Show cause hearing.
(1) The Village Director may order any user who causes or allows an unauthorized discharge to enter the POTW to show cause why proposed enforcement action shall not be taken.
(a) This shall be accomplished by issuance of a written order as permitted by division (C)(2)(d) above specifying the time and place of the hearing, the nature of the violation, reasons for taking the proposed action, the proposed enforcement action and directing the user to appear before the village to show cause why the proposed action should not be taken.
(b) Notice of hearing shall be served personally or by registered or certified mail (return receipt requested) at least ten days before the hearing. Service may be made on any agent or officer of the user.
(2) The Village Director may designate a hearing officer to:
(a) Issue notices regarding attendance and testimony of witnesses and production of evidence;
(b) Take evidence; and
(c) Transmit a report and transcript of the hearing together with evidence and recommendations to the Village Director.
(3) All testimony must be given under oath and recorded verbatim.
(4) After reviewing the transcripts and evidence, the Village Director may issue an order to the user requiring that specific corrective action be taken and specifying a time schedule for any such action. Further orders and directions may be issued by the Village Director as the Village Director shall deem appropriate.
(G) Violation hearing.
(1) Right to hearing.
(a) A hearing before a hearing officer may be requested, in writing, by any user deeming itself aggrieved by any notice of violation, or other enforcement action within 30 calendar days after the notice of violation or other enforcement action has been served upon the user. If an informal conference has not been requested by the user, the request for a hearing shall be made within 15 days of service of the notice or citation.
(b) A hearing fee of $250 must accompany any request for a hearing filed under this division (G)(1).
(c) If a hearing is not demanded within the time period provided herein, the action taken by the Village Director shall be deemed final. In the event the hearing is demanded, the action shall be suspended until the hearing is completed; provided, however, that cease and desist orders issued pursuant to this chapter shall not be suspended.
(2) Time. The hearing shall be promptly scheduled to commence at the earliest practicable date, but not later than 30 days after receipt of the request unless extended by mutual written agreement.
(3) Content for request for hearing. Any written request for a hearing shall be signed by the user requesting the hearing or by a duly authorized officer, agent, or attorney, shall be directed to the Village Director, and shall contain the following:
(a) The name and address of the user requesting the hearing;
(b) A copy of the notice of violation, order, or the notice of any surcharge, penalty, or action on a PTD; and
(c) A statement of the defenses and issues to be raised at the hearing.
(4) Selection of hearing officer. The Village Manager shall appoint the hearing officer who shall be a person who shall not be the Village Director or any person who shall be a direct subordinate of the Village Director.
(5) Procedure for conduct of hearing. Hearings on any notice of violation, order, notice of surcharge, penalty, or action on a permit issued by the Village Director shall be conducted under the procedure set forth in this division (G)(5).
(a) Rules. Hearings shall be informal and need not be conducted according to the strict technical rules relating to evidence and witnesses.
(b) Oral evidence. Oral evidence shall be taken only on oath or affirmation.
(c) Hearsay evidence. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence.
(d) Admissibility of evidence. Any relevant evidence shall be admitted if it is the type of evidence upon which responsible persons are accustomed to rely in the conduct of serious affairs.
(e) Exclusion of evidence. Irrelevant and unduly repetitious evidence shall be excluded.
(f) Rights of parties. At the hearing, each party shall have the following rights:
1. To call and examine witnesses on any matter relevant to the issues of the hearing;
2. To introduce documentary and physical evidence;
3. To cross-examine opposing witnesses on any matter relevant to the issues of the hearing;
4. To impeach any witness regardless of which party first called him or her to testify;
5. To rebut adverse evidence; and
6. To representation of his or her choice at his or her sole expense.
(g) What may be noticed. In reaching a decision, official notice may be taken either before or after submission of the case for decision of any fact which may be judicially noticed by the courts of this state.
(h) Inspection of the premises. The hearing officer may inspect any building or premises involved in the hearing.
(i) Record. A record of the proceedings shall be made by tape recording. A transcript of the proceedings shall be made available to all parties upon request and upon payment by the requesting party of the costs of transcription.
(6) Form of decision; decision of Village Manager. The hearing officer shall prepare a written recommendation which shall contain proposed findings of fact, a proposed decision on each of the points raised by the user, and an explanation of the reasons for the proposed decision. The Village Manger shall review same and shall issue a final written decision on the matter within 15 days of receipt of the recommendation. A copy of the decision of the Village Manager shall be delivered personally or sent by first-class mail to the user.
(7) Judicial review. Appeals of the decision of the Village Manager shall be made to a court of competent jurisdiction as provided by law.
(8) Costs. If the Village Director's action is upheld by the Village Manager, then the user shall pay to the village all of the costs incurred by the village in holding the hearing, including, but not limited to, the fee or salary of the hearing officer, transcription and recording costs, and all of the village's costs of enforcement, including, but not limited to, the village's sampling and analytical costs. If the Village Director's action is partially upheld or is reversed, the Village Manager may apportion those costs between the village and the user in an equitable manner. Under the first two sentences of this division (G)(8), the user who has paid a $250 hearing fee shall receive a credit for that amount but no refund of any part of the $250 hearing fee shall be given. The user's liability of costs under this division (G)(8), plus fines and penalties imposed on the user, shall not exceed the maximum aggregate fines that could be imposed on the user under division (H)(7) below.
(H) Violations, penalties, and remedies.
(1) Misdemeanors. Violations related to the following actions shall be treated as misdemeanors.
(a) No person shall maliciously, willfully, or negligently break, damage, destroy, uncover, deface, or tamper with any structure, appurtenance, or equipment which is a part of the POTW.
(b) Any person who at the time of a violation knew or should have known that a pollutant or substance was discharged contrary to any provision of this chapter, or contrary to any notice, order, permit, decision, or determination promulgated, issued, or made by the POTW under this chapter.
(c) Any person who intentionally makes a false statement, representation, or certification in an application for, or form pertaining to a permit, or in a notice, report, or required elsewhere in this chapter, or in any other correspondence or communication, written or oral, with the POTW regarding matters regulated by this chapter.
(d) Any person who intentionally falsifies, tampers with, or renders inaccurate any sampling or monitoring device or record required to be maintained by this chapter.
(2) Municipal civil infractions. All violations of this chapter, other than those violations related to the actions as specified in division (H)(1) above, shall be considered municipal civil infractions. Municipal civil infractions are punishable as provided for in Chapter 30. In addition, the village shall have the right to seek restitution for the cost of repair or replacement of damage to the POTW caused by the person or user charged with violating any of the provisions of this chapter, a permit to discharge or any order as issued under this chapter.
(3) Continuing offense. Each and every day, or portion thereof, of any violation of this chapter by any user shall constitute a separate and new violation by the user and shall be punishable by the imposition of administrative and/or civil penalties as provided in this chapter.
(4) Violation constitutes a public nuisance. Violations of this chapter, a permit to discharge, or any order as provided for in division (C) above are hereby declared to be a public nuisance.
(5) Civil judicial relief. The Village Director is hereby empowered, with the Village Attorney, to institute legal proceedings in a court of competent jurisdiction for the abatement of any nuisance, and to seek relief for violations of this chapter, a permit to discharge, or any order as provided for in division (C) above. The Village Director may seek temporary or permanent injunctive relief damages, penalties, costs, and any other relief as a court may order.
(6) Judicial civil penalties. In any action brought by the village against any person or user for a violation of this chapter, a permit to discharge or any order as provided for in division (C) above, a court of competent jurisdiction may impose, in addition to the relief permitted under division (H)(5) above, a civil penalty.
(7) Cumulative remedies. The imposition of a single penalty, fine, order, damage, or surcharge upon a user for a violation of this chapter, a permit to discharge, or any order issued under this chapter shall not preclude the imposition by the village or a court of competent jurisdiction of a combination of any or all of the sanctions and remedies or additional sanctions and remedies with respect to the same violation, consistent with applicable statutory limitations on penalty amounts. A citation and prosecution of a municipal civil infractions action against a user shall not be dependent upon or held in abeyance during any civil, judicial, or village administrative proceeding, conference, or hearing regarding the user.
(I) Publication of significant violators. The POTW shall publish, once per year in the largest daily newspaper in the village, a public notice of categorical industrial users which, at any time during the previous 12 months were in significant noncompliance of federal, state, or village pretreatment standards or requirements, as defined in § 51.02.
(J) Affirmative defenses.
(1) A user shall have an affirmative defense in any action brought against it alleging a violation of this chapter where the user can demonstrate that:
(a) It did not know or have reason to know that its discharge alone or in conjunction with a discharge or discharges from other sources would cause pass-through or interference;
(b) A local limit designed to prevent pass-through or interference was developed for each pollutant in the user's discharge that caused pass-through or interference, and the user was in compliance with the limit directly prior to and during the pass-through or interference; or
(c) If a local limit designed to prevent pass-through or interference has not been developed for the pollutants which caused the pass-through or interference, the user's discharge prior to and during the pass-through or interference did not substantially change in nature or constituents from the user's prior discharge activity when the POTW was regularly in compliance with the POTW’s NPDES permit requirements and, in the case of interference, applicable requirements for sewage sludge use or disposal.
(2) Industrial dischargers do not have an affirmative defense for the discharge of pollutants that result in the presence of toxic gases, vapors, or fumes within the POTW in a quantity that may cause acute worker health and safety problems.
(Prior Code, § 542.15)