935.12 ENFORCEMENT.
(a) Violations. No person or discharger shall violate any provision, regulation or requirement of this chapter. Details of the City's Enforcement Response Plan (ERP) are contained in the City of Mansfield's Industrial Pretreatment Program (IPP) under separate cover.
(b) Notice of Violation. Whenever the EC Supervisor finds a discharger in violation of this chapter, he may serve written notice upon the violator stating a brief and concise description of the violation and direct compliance with this chapter within ten days.
Service of the notice shall be made personally or by certified mail upon the discharger or authorized representative of the industrial user. Service is complete upon date of mailing.
Where a discharger cannot be located, service of notice shall be made by the City of Mansfield's Police Department.
(c) Citation and Hearing. When the violation has not been corrected as directed by the EC Supervisor, the EC Supervisor may issue a written citation to the discharger. The citation shall contain a brief and concise description of the particulars of the violation as well as the time and place of a hearing. The date of the hearing shall be no earlier than ten days nor later than twenty days from the date of the service.
Service of the citation shall be made personally or by certified mail upon the discharger or authorized representative of the industrial user. Service is complete on the date of mailing. Where a discharger cannot be located service of notice shall be made by the City of Mansfield's Police Department.
The City's Public Works Director and not his authorized deputy, agent or representative shall be the responsible officer before which the hearing shall be conducted. He shall determine the order in which the hearing shall proceed.
At the hearing the discharger or its representative or attorney shall be permitted to present its position, arguments and contentions. Evidence may be admitted and witnesses may be examined and cross examined to either support the discharger's position or to refute evidence and testimony offered by the EC Supervisor. Further, the right to proffer evidence into the record shall be recognized. All witnesses shall be placed under oath and the Public Works Director shall permit subpoenas to be issued upon written request. If neither the discharger nor its authorized representative appear at the hearing, the Public Works Director shall proceed with the hearing.
Within thirty days from the date of the hearing, the Public Works Director shall render his decision in writing, supported by conclusions of fact supporting his decision, to all parties. The Public Works Director may order any appropriate relief including termination of wastewater treatment services to the discharger. The decision of the Public Works Director shall be a final administrative order and any discharger adversely affected by such decision may appeal to the common pleas court according to law.
(d) Enforcement Actions: Annua1 Publication. At least annually, the Public Works Director 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 considered in significant noncompliance if it has a violation that meets the criteria in paragraphs (3), (4), or (8) listed below. A significant industrial user (SIU) is considered in significant noncompliance if its violation meets any of the following criteria:
(1) Chronic violations of wastewater discharge limits listed in Section 935.09
, defined here as those which sixty-six percent (66%) or more of all of the measurements taken for the same pollutant parameter, at any permitted monitoring point during a six month period exceed (by any magnitude) the daily maximum limit or the average limit for the same pollutant parameter;
(2) Technical Review Criteria (TRC) violations, defined here as those in which thirty-three percent or more of all of the measurements for the same pollutant parameter taken during a six month period equal or exceed the product of the daily maximum limit or the average limit multiplied by the applicable TRC (TRC = 1.4 for BOD, TSS, Fats, Oil & Grease, and 1.2 for all other pollutants except pH);
(3) Any other violation of a pretreatment standard or requirement (daily maximum, longer-term average, instantaneous limit or narrative standard) as described in Sections 935.08
and 935.09
that the Public Works Director determined has caused, alone or combination with other discharges, interference or pass through (including endangering the health of POTW personnel or the general public);
(4) Any discharge of a pollutant that has caused imminent endangerment of human health, welfare or to the environment or has resulted in the POTW's exercise of emergency authority to halt or prevent such a discharge;
(5) 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;
(6) Failure to provide, within forty-five days after the due date required reports such as baseline monitoring reports, ninety day compliance reports, periodic self-monitoring reports, reports on compliance with compliance schedules, or any other reports required;
(7) Failure to accurately report noncompliance;
(8) Any other violation or group of violations which the Public Works Director determines will or has adversely affected the operation or implementation of the City's pretreatment program, including violations of any Best Management Practice (BMP) established for an industrial user.
(e) Operating Upsets. For the purpose of this section "upset" means an exceptional incident in which there is unintentional and temporary noncompliance with Categorical or Local Pretreatment Standards because of factors beyond the reasonable control of the industrial 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.
(1) An upset shall constitute an affirmative defense to an action brought for noncompliance with Local or Categorical Pretreatment Standards if the requirements of paragraph (e)(2) below, are met.
(2) Conditions necessary for a demonstration of a upset. 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 industrial user can identify the cause(s) of the upset;
B. The facility was at the time being operated in a prudent workman- like manner and in compliance with applicable operation and maintenance procedures; and
C. The industrial user has submitted the following information to the City within twenty-four hours of becoming aware of the upset. (If this information is provided orally a written submission must be provided within five days).
(3) A description of the indirect discharge and cause of noncompliance;
(4) The period of noncompliance, including exact dates and time or if not corrected, the anticipated time the noncompliance is expected to continue; and
(5) Steps being taken and/or planned to reduce, eliminate and prevent recurrence of the noncompliance.
(6) Burden of proof. In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof.
(7) Reviewability by the City of consideration of claims of upset. In the usual exercise of prosecutorial discretion the City enforcement personnel should review any claim that noncompliance was caused by an upset. No determination made in the course of the review constitutes final City action subject to judicial review. Industrial users will have the opportunity for a judicial determination on all claims of upset in any enforcement action brought for noncompliance with National or Local Pretreatment Standards.
(8) User's responsibility in case of upset. The industrial user shall control production of all discharges to the extent necessary to maintain compliance with Local and 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.
(f) Other Remedies. Notwithstanding any other enforcement procedure listed in this chapter, whenever it is determined there is a substantial danger to the public health or welfare or a substantial danger to the environment or of interferences or pass-through to the POTW due to acts or omissions of any discharger, the City may, through its appropriate officials, seek a temporary restraining order, temporary or permanent injunction or abatement in the Court of Common Pleas and shall not be required under these conditions to exhaust the administrative procedures within this chapter as a condition precedent to the commencement of such action.
Notwithstanding any other enforcement procedures listed in this chapter, or in conjunction with any other enforcement procedure, the City may seek to terminate the wastewater treatment services to any discharger which fails to factually report the wastewater concentration and characteristic of its discharge; report significant changes in the wastewater concentration or discharge; provide reasonable access to the discharger's premises by representatives of the authority for the purpose of inspection or monitoring; or who violates the conditions of this chapter, or any final administrative order entered with respect thereto. Any discharge or interested party shall have the right to request in writing an interpretation or ruling by the City on any matter covered under this chapter and shall be entitled to a prompt written reply.
Any discharge of any sewage, industrial waste pollutant, toxic pollutant or other waste into the POTW in violation of any provision, regulation or requirement of this chapter is declared to be a public nuisance and may be enjoined by the City through its appropriate officials in the Court of Common Pleas.
(g) Bypasses.
(1) "Bypass" means the intentional diversion of waste streams from any portion of a user's treatment facility.
(2) "Severe property damage" means substantial physical damage to property, damage to the treatment facilities which cause 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.
(3) Bypasses not violating applicable pretreatment standards or requirements. A user may all allow 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 paragraphs (g)(4) and (6) of this section,
(4) Notice. If an industrial user knows in advance of the need for a bypass, it shall submit prior notice to the City, at least ten days before the date of the bypass if possible.
(5) An industrial user shall submit oral notice to the City 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 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 City may waive the written report on a case by case basis of if the oral report has been received within twenty-four hours.
(6) Prohibition of bypass. Bypass is prohibited, and the City may take enforcement action against a user for bypass unless:
A. Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;
B. The industrial user submitted notices as required under paragraph (g)(4) of this section.
(7) The City may approve an anticipated bypass, after considering its adverse effects, if the City determines that it will meet the three conditions listed in subsections (g)(6)A. and B. of this section.
(Ord. 16-172. Passed 8-2-16.)