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The Wastewater Superintendent may decline to reissue a wastewater discharge permit to any user who 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 assurances sufficient to restore or repair damage to the POTW caused by its discharge.
(1996 Code, § 168-63)
(A) 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.
(B) Service will only recommence, at the user’s expense, after it has satisfactorily demonstrated its ability to comply.
(1996 Code, § 168-64)
A violation of any provision of this chapter, a 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 Wastewater Superintendent. Any person(s) creating a public nuisance shall be subject to the provisions governing such nuisances, including reimbursing the town for any costs incurred in removing, abating or remedying said nuisance.
(1996 Code, § 168-65) Penalty, see § 52.999
AFFIRMATIVE DEFENSES TO DISCHARGE VIOLATIONS
(A) 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.
(B) An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the requirements of division (c) below are met.
(C) A user who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that:
(1) An upset occurred and the user can identify the cause(s) of the upset;
(2) The facility was at the time being operated in a prudent and workmanlike manner and in compliance with applicable operation and maintenance procedures; and
(3) The user has submitted the following information to the Wastewater 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):
(a) A description of the indirect discharge and cause of noncompliance;
(b) The period of noncompliance, including exact dates and times or, if not corrected, the anticipated time the noncompliance is expected to continue; and
(c) Steps being taken and/or planned to reduce, eliminate and prevent recurrence of the noncompliance.
(D) In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof.
(E) Users will have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for noncompliance with categorical pretreatment standards.
(F) Users shall control production or 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.
(1996 Code, § 168-66)
A user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general prohibitions in § 52.015(A) or the specific prohibitions in § 52.015(B)(1)(a) through (B)(1)(r) if it can prove that it did not know, or have reason to know, that its discharge, alone or in conjunction with discharges from other sources, would cause pass through or interference and that either:
(A) A local limit exists for each pollutant discharged and the user was in compliance with each limit directly prior to, and during, the pass through or interference; or
(B) No local limit exists, but the discharge did not change substantially in nature or constituents from the user’s prior discharge when the town was regularly in compliance with its VPDES permit, and in the case of interference, was in compliance with applicable sludge use or disposal requirements.
(1996 Code, § 168-67)
(A) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
BYPASS. The intentional diversion of waste streams from any portion of a user’s treatment facility.
SEVERE PROPERTY DAMAGE. Substantial physical damage to property, damage to the treatment facilities which causes them to become inoperable, or substantial and permanent loss of natural resources which 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.
(B) Bypass. A user may allow any bypass to occur which does not cause 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 divisions (c) and (D) below.
(C) Notice.
(1) If a user knows in advance of the need for a bypass, it shall submit prior notice to the Wastewater Superintendent, at least ten days before the date of the bypass.
(2) A user shall submit oral notice to the Wastewater Superintendent of an unanticipated bypass that exceeds applicable pretreatment standards within 24 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 Wastewater Superintendent may waive the written report on a case-by-case basis if the oral report has been received within 24 hours.
(D) Action by Wastewater Superintendent.
(1) Bypass is prohibited, and the Wastewater Superintendent may take enforcement action against a user for a bypass, unless:
(a) Bypass was unavoidable to prevent loss of life, personal injury or severe property damage;
(b) There was no feasible alternative 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 backup equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance; and
(c) The user submitted notices as required under division (c) above.
(2) The Wastewater Superintendent may approve an anticipated bypass, after considering its adverse effects, if the Wastewater Superintendent determines that it will meet the three conditions listed in division (D)(1) above.
(1996 Code, § 168-68)
(A) A user who 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 town for a maximum civil penalty in an amount set by Council from time to time 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.
(B) The Wastewater Superintendent 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 town.
(C) 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.
(D) Filing a suit for civil penalties shall not be a bar against, or a prerequisite for, taking any other action against a user.
(1996 Code, § 168-59)