§ 52.999  PENALTY.
   (A)   Any person violating any provision of this chapter for which no specific penalty is prescribed shall be subject to § 10.999 of this code of ordinances.
   (B)   Any person, firm or corporation violating the provisions of §§ 52.020 through 52.031 of this chapter shall, upon conviction, be liable for any damages done to the sanitary sewer system or the water pollution control plant and shall be punished by a civil penalty as provided in § 10.999(A) of this code of ordinances. Each day that a violation continues may be considered a separate violation.
(2013 Code, § 28-53)
   (C)   (1)   Any person, firm or corporation who violates or resists the enforcement of any provision of §§ 52.045 through 52.051 of this chapter shall be guilty of a municipal infraction, punishable as provided in § 10.999(A) of this code of ordinances. Each violation constitutes a separate offense. Any person, firm or corporation who violates a provision of §§ 52.045 through 52.051 of this chapter after previously being found guilty of violating the same provision of §§ 52.045 through 52.051 of this chapter at the same location or at a different location shall be guilty of a repeat offense.
      (2)   Seeking a civil penalty as authorized in this division (C) does not preclude the city from seeking alternative relief, including injunctive relief, suits for monetary damages or enforcement provisions under the city’s Industrial Pretreatment Ordinance.
(2013 Code, § 28-69)
   (D)   (1)   Judicial enforcement remedies.
         (a)   Injunctive relief. Whenever a user has violated a pretreatment standard or requirement or continues to violate the provisions of §§ 52.065 through 52.085 of this chapter, wastewater discharge permits or orders issued under §§ 52.065 through 52.085 of this chapter or any other pretreatment requirement, the Director may petition the courts 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 §§ 52.065 through 52.085 of this chapter on activities of the industrial user. Such other action as appropriate for legal and/or equitable relief may also be sought by the city. A petition for injunctive relief need not be filed as a prerequisite to taking any other action against a user.
         (b)   Civil penalties. Civil penalties, including municipal infractions pursuant to city ordinance (see I.C.A. § 364.22), may be imposed as follows.
            1.   Any industrial user who violates any pretreatment standard or requirement, as referred to in 40 C.F.R. § 403.8, may be punished by a civil penalty of not more than $1,000 for each day a violation exists or continues.
            2.   Any user who commits any environmental violation of I.C.A. Ch. 455B or a violation of a standard established by the city in consultation with the state’s Department of Natural Resources, or both, may be punished by a civil penalty of not more than $1,000 for each occurrence.
            3.   A person committing an environmental violation is not subject to a civil penalty, if all of the following conditions are satisfied:
               a.   The violation results solely from the person conducting an initial startup, cleaning, repairing, performing scheduled maintenance, testing or conducting a shutdown of either equipment causing the violation or the equipment designed to reduce or eliminate the violation;
               b.   The person notifies the city of the violation within 24 hours from the time that the violation begins; and
               c.   The violation does not continue in existence for more than eight hours. The city shall not enforce this division (D)(1)(b) against a person committing an environmental violation until the city offers to participate in informal negotiations with the person. If the person accepts the offer, the city and the person shall participate in good faith negotiations to resolve issues alleged to be the basis of the violation.
            4.   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.
            5.   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.
            6.   Filing a suit for civil penalties shall not be a prerequisite for taking any other action against a user.
            7.   Violation of §§ 52.065 through 52.085 of this chapter shall, in addition hereto, be a municipal infraction.
         (c)   Criminal prosecution. Any person who violates any provision of §§ 52.065 through 52.085 of this chapter shall, in addition to the civil penalties in this division (D), upon conviction, be punished by a penalty as provided in § 10.999 of this code of ordinances.
         (d)   Falsifying information. Any person who knowingly makes any false statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained pursuant to §§ 52.065 through 52.085 of this chapter or the wastewater contribution permit or who falsifies, tampers with or knowingly renders inaccurate any monitoring device or method required under §§ 52.065 through 52.085 of this chapter shall, upon conviction, be punished by a penalty as provided in § 10.999 of this code of ordinances.
         (e)   Remedies non-exclusive. The provisions in this section are not exclusive remedies. Additional remedies shall include, but not be limited to, injunctive relief, suits for monetary damage and suits for court orders directing compliance. The city 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 city reserves the right to take other action against any user when the circumstances warrant. Further, the city is empowered to take more than one enforcement action against any non-compliant user. These actions may be taken concurrently.
(2013 Code, § 28-98)
      (2)   Affirmative defenses to discharge violations.
         (a)   Upset. Upset used as an affirmative defense to a discharge violation under §§ 52.065 through 52.085 of this chapter shall be in accordance with the following.
            1.   For the purposes of this division (D)(2), the term UPSET means an exceptional incident in which there is unintentional and temporary non-compliance with categorical pretreatment standards because of factors beyond the reasonable control of the industrial user. An upset does not include non-compliance 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 non- compliance with categorical pretreatment standards if the requirements hereof are met.
            3.   An industrial 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 of the upset;
               b.   The facility was at the time being operated in a prudent and workmanlike manner and in compliance with applicable operation and maintenance procedures; and
               c.   The industrial user has submitted the following information to the POTW and treatment plant operator within 24 hours of becoming aware of the upset; if this information is provided orally, a written submission must be provided within five days:
                  i.   A description of the indirect discharge and cause of non-compliance;
                  ii.   The period of non-compliance, including exact dates and times or, if not corrected, the anticipated time the non-compliance is expected to continue; and
                  iii.   Steps being taken and/or planned to reduce, eliminate and prevent recurrence of the non-compliance.
            4.   In any enforcement proceeding, the industrial user seeking to establish the occurrence of an upset shall have the burden of proof.
            5.   Industrial users will have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for non-compliance with categorical pretreatment standards.
            6.   The industrial user 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 division (D)(2)(a)6. applies in the situation where, among other things, the primary source of power of the treatment facility is reduced, lost or fails.
         (b)   General/specific prohibitions. An industrial user shall have an affirmative defense to an enforcement action brought against it for non-compliance with the general and specific prohibitions in §§ 52.067 and 52.068 of this chapter if it can prove that it did not know or have reason to know that its discharge, along or in conjunction with discharges from other sources, would cause pass through or interference and that either:
            1.   A local limit exists for each pollutant discharged and the industrial user was in compliance with each limit directly prior to and during the pass through or interference; or
            2.   No local limit exists, but the discharge did not change substantially in nature or constituents from the user’s prior discharge when the city WPCP was regularly in compliance with its NPDES permit and, in the case of interference, was in compliance with applicable sludge use or disposal requirements.
         (c)   Bypass. Bypass used as an affirmative defense to a discharge violation under §§ 52.065 through 52.085 of this chapter shall be in accordance with the following:
            1.   For the purpose of this division (B), 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 industrial user’s treatment facility.
               SEVERE PROPERTY DAMAGE. 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.   An industrial 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 ensure efficient operation. These bypasses are not subject to the provision of divisions (D)(2)(c)3. and (D)(2)(c)4. below.
            3.   Notice of bypass shall be submitted as follows.
               a.   If an industrial 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.   An industrial user shall submit oral notice of an unanticipated bypass that exceeds applicable pretreatment standards to the POTW 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 industrial 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 occurrence of the bypass. The POTW may waive the written report on a case-by-case basis if the oral report has been received within 24 hours.
            4.   Enforcement actions and approval of an anticipated bypass shall be as follows.
               a.   Bypass is prohibited, and the POTW may take enforcement action against an industrial user for a bypass, unless:
                  i.   The bypass was unavoidable to prevent loss of life, personal injury or severe property damage;
                  ii.   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 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
                  iii.   The industrial user submitted notices as required hereunder.
               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 division (D)(2)(c)4.a. above.
(2013 Code, § 28-99)
(Ord. 14438, passed 8-23-1993; Ord. 14461, passed 5-23-1994; Ord. 14531, passed 3-25-1996; Ord. 14711, passed 3-24-2003; Ord. 14914, passed 12-10-2012; Ord. 14933, passed 9-8-2014; Ord. 14945, passed 3-14-2016; Ord. 14970, passed 11-27-2017)