(A) Notification of violation. Whenever the Superintendent finds that any user has violated or is violating this subchapter, a discharge permit, any prohibition, limitation or requirement, or any order issued hereunder, the Superintendent or the Superintendent’s agent may serve upon the user a written notice of violation setting forth the nature of the violation(s). The notice may also include specific corrective actions and compliance schedules to which the Superintendent requires the user to adhere. Within ten days of the date of receipt of this notice, the user shall submit to the Superintendent a written explanation of the violation and a plan for the satisfactory correction and prevention thereof, consistent with the terms of the notice (to include specific corrective actions and compliance schedules). Compliance with the conditions, requirements and terms of this notice shall not be construed to relieve the user of its obligation to comply with its discharge permit which remains in full force and effect nor does such compliance excuse violations occurring before or after receipt of this notice of violation. Additional enforcement action may be pursued if corrective actions are not accomplished as scheduled and the Superintendent expressly reserves the right to seek any and all remedies available to it under this subchapter for any violations cited by the notice. Nothing in this subchapter shall limit the authority of the city to take any action, including emergency actions or any other enforcement action, without first issuing a notice of violation.
(B) Consent orders. The Superintendent is hereby empowered to enter into consent orders, assurances of voluntary compliance, or other similar documents establishing an agreement any user responsible for noncompliance. Such orders will include specific action to be taken by the user to correct the noncompliance including, but not limited to, compliance schedules, stipulated fines or remedial actions, and signatures of the Superintendent and user representatives. Consent orders shall have the same force and effect as any other orders issued by the Board of Public Works and Safety under this subchapter.
(C) Show cause order and hearing.
(1) The Superintendent may serve upon any user who causes, allows or contributes to a violation of this subchapter, its discharge permit, or any order issued hereunder, or an unauthorized discharge to enter the POTW a written show cause order. Said order must be given at least ten days prior to the hearing in accordance with this subchapter. The show cause order must contain:
(a) The name and address of the user to whom the show cause order is issued;
(b) The address, or the parcel number, of the property that is the subject of the order, if different from division (C)(1)(a) above;
(c) The nature of the violation(s);
(d) An order to the user to appear before the Board of Public Works and Safety to show cause as to why the city should not initiate formal enforcement action against the user or discontinue service to the user;
(e) A statement indicating the exact time and place of the hearing, and that the person to whom the show cause order was issued is entitled to appear at the hearing with or without legal counsel, present evidence, cross examine opposing witnesses and present arguments;
(f) A statement of the proposed enforcement action and the reasons therefor;
(g) A statement indicating that a failure to comply with any of the conditions, requirements or terms of the show cause order shall constitute a violation of this subchapter and may subject the user to such other enforcement response that may be appropriate;
(h) The name, address and telephone number of the Superintendent of the city.
(2) The Board of Public Works and Safety may itself conduct a hearing and take the evidence, or may designate any of its members or any officer or employee of the Wastewater Department to:
(a) Issue in the name of the Board of Public Works and Safety notices of hearings requesting the attendance and testimony of witnesses and the production of evidence relevant to any matter involved in such hearing;
(b) Take the evidence;
(c) Transmit a report of the evidence and hearing, including transcripts and other evidence, together with recommendations to the Board of Public Works and Safety for action thereon.
(3) A hearing must be held relative to each show cause order of the city and the hearing shall be held on a business day no earlier than ten days after notice of the show cause order is given. In this regard, the show cause order shall be served upon the user in accordance with division (M) below and the show cause order is effective on the date considered given in accordance with division (N) below. At any hearing held pursuant to this subchapter, testimony taken must be under oath and recorded stenographically or mechanically. The person to whom the show cause order was issued, or any other person with an interest in the proceedings may appear in person or by counsel at the hearing. Whether or not a duly notified user appears as noticed, enforcement action may be pursued as appropriate. Each person appearing at the hearing is entitled to present evidence, cross examine opposing witnesses and present arguments. The transcript, so recorded, will be made available to any member of the public or any party to the hearing upon payment of the usual charges therefor.
(4) After the Board of Public Works and Safety has reviewed the evidence and if it finds any violation(s) of this subchapter, any prohibition, limitation or requirement contained herein or of the user’s discharge permit, or of any order issued hereunder, it shall make findings and it may issue to the user responsible for the discharge any orders or directives as are necessary and appropriate. Issuance of a show cause order shall not be a prerequisite to taking any other action against a user.
(D) Compliance orders. When the Superintendent finds that a user has violated or continues to violate this subchapter, discharge permits or orders issued hereunder, or any other pretreatment standard or requirement, he or she may issue an order to the user responsible for the discharge directing that the user come into compliance within a specified time period. If the user does not come into compliance within the specified time period, sewer service shall be discontinued to the user unless and until adequate treatment facilities, devices or other related appurtenances are installed and properly operated. Such service shall not recommence until such time as the user is able to demonstrate that it can and will maintain compliance. Failure to comply with this compliance order may subject the user to having its connection to the sanitary sewer sealed by the city and assessed the costs therefor. Compliance orders may also contain such other requirements as might be reasonably necessary and appropriate to address the noncompliance, including, but not limited to, the installation of pretreatment technology, additional self-monitoring and improved management practices designed to minimize the amount of pollutants discharged to the POTW. A compliance order may not extend the deadline for compliance established for a federal pretreatment standard or requirement, nor does a compliance order release the user of liability for any violation, including any continuing violation. Issuance of a compliance order shall not be a prerequisite to taking any other action against the user.
(E) Cease and desist orders.
(1) When the Superintendent finds that a user is violating this subchapter, the user’s discharge permit, any order issued hereunder, or any other pretreatment standard or requirement, or that the user’s past violations are likely to recur, the Superintendent 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;
(b) Take such appropriate remedial or preventive action as may be needed to properly address a continuing or threatened violation, including halting operations and terminating the discharge.
(2) In an emergency, the order to cease and desist may be given by the Superintendent by telephone. In non-emergency situations, the cease and desist order may be used to suspend or revoke discharge permits. Issuance of a cease and desist order shall not be a prerequisite to taking any other action against the user.
(F) Revocation order. When the Superintendent finds that a user is violating this subchapter, the user’s discharge permit, any order issued hereunder, any other pretreatment standard or requirement, or any order or directive issued by the Board of Public Works and Safety pursuant to a show cause hearing, the Superintendent may issue an order to the user revoking the user’s discharge permit and directing the user to immediately stop or eliminate non-domestic contribution into the city’s POTW. Failure to comply with this order may subject the user to having any or all connections to the sanitary sewer sealed by the city and assessed the costs therefor. Revocation orders may be issued by the Superintendent pursuant to § 51.23 and shall not be a prerequisite to taking any other action against the user.
(G) Emergency suspensions.
(1) The city may, upon informal notice to the user, immediately suspend a user’s discharge permit whenever such suspension is necessary, in the opinion of the Superintendent, in order to halt or prevent an actual or threatened discharge which presents or may present an immediate or substantial endangerment to human health, to the welfare of the public, or to the environment, that threatens to interfere with the operation of the POTW or is causing or will cause the city to violate any condition of its NPDES permit.
(2) Any user notified of a suspension of the waste water treatment service and/or the discharge permit shall immediately stop or eliminate the discharge. In the event of a failure of the person to comply voluntarily with the suspension order, the Superintendent shall take such steps as deemed necessary, including, but not limited to, immediate severance of the sewer connection, to minimize damage to the POTW system or endangerment to any individuals or to the environment.
(3) The Superintendent shall allow the user to recommence its discharge when the user has demonstrated to the satisfaction of the city that the period of endangerment has passed, unless the termination proceedings set forth in § 51.35(H) are initiated against the user.
(4) 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 Superintendent prior to the date of any show cause or termination hearing.
(5) Compliance with the conditions, requirements and terms of the suspension order shall not be construed to relieve the user of its obligation to comply with its discharge permit which remains in full force and effect nor does such compliance excuse previous violations. Additional enforcement action may be pursued if corrective actions are not accomplished as required and the city expressly reserves the right to seek any and all remedies available to it under this subchapter for any violations cited by the suspension order. Further, a failure to comply with any of the conditions, requirements or terms of the suspension order shall constitute a further violation of this subchapter and may subject the user to such other enforcement response that may be appropriate.
(6) The Superintendent may deny or condition new or increased discharges by a user or changes in the nature of pollutants discharged by the user if the discharge does not meet applicable pretreatment standards or will cause the city to violate its NPDES permit.
(7) Nothing in this subchapter shall be interpreted as requiring a hearing prior to any emergency suspension.
(H) Termination of discharge.
(1) In addition to the provisions of § 51.23, any user who 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 in § 51.21.
(2) Such user will be notified of the proposed termination of its discharge and be offered an opportunity to show cause under § 51.35(C) why the proposed action should not be taken. Exercise of this option by the Rochester Board of Public Works and Safety shall not be a bar to, or a prerequisite for, taking any other action against the user.
(I) Right of appeal; Board of Public Works and Safety.
(1) Any user or applicant for any permit filed pursuant to this ordinance affected by any decision, action, or determination, including cease and desist orders, made by any Rochester representative; e.g., Inspector, Superintendent, Board, interpreting or implementing the provisions of this subchapter, or any permit issued herein, or the denial of any application for permit provided in this subchapter, may file with the Superintendent a written request for reconsideration within 30 days of such a decision, action, or determination, setting forth in detail the facts supporting the user’s request for reconsideration.
(2) If the ruling made by the Superintendent is unsatisfactory to the person requesting reconsideration, he or she may within 30 days from the notification of the Superintendent, file a written appeal to the Rochester Board of Public Works and Safety. The written appeal shall be heard by the Board within 30 days from the date of filing. The Rochester Board of Public Works and Safety shall make a final ruling on the appeal within 30 days of the close of the meeting. The Rochester Board of Public Works and Safety’s decision, action, or determination shall remain in effect during such period of reconsideration.
(3) The findings of the Board of Public Works and Safety shall be in writing and shall be available to the public upon request. However, neither the city nor the Board of Public Works and Safety is required to give any person notice of the findings and orders issued thereto other than the user or applicant to whom said orders may be directed. The findings and any orders issued by the Board of Public Works and Safety shall be served upon the user in accordance with division (M) below and the notice is effective on the date considered given in accordance with division (N) below.
(4) Compliance with the conditions, requirements and terms of any of the orders issued by the Board of Public Works and Safety pursuant to division (C)(4) above will not be construed to relieve theuser of its obligation to comply with its wastewater contribution permit which remains in full force and effect nor does such compliance excuse previous violations. Additional enforcement action may be pursued if corrective actions are not accomplished as scheduled and the city expressly reserves the right to seek any and all remedies available to it for any violation found by the Board of Public Works and Safety. Further, a failure to comply with any of the conditions, requirements or terms of the orders shall constitute a further violation of this subchapter and may subject the user to such other enforcement response that may be appropriate.
(5) Any action taken by the Board of Public Works and Safety under this subchapter is subject to review by the Circuit or Superior Court of the County out of which the matter dealt with by the Board of Public Works and Safety arose, on the request of any user or applicant to whom the respective order was issued or to any interested party. Any person requesting judicial review under this subchapter section must file a verified complaint with the Clerk of the appropriate Circuit or Superior Court within ten days of the date when the Board of Public Works and Safety issued its findings of fact and accompanying order. An appeal under this division (I)(5) is an action de novo. The court may affirm, modify or reverse the action taken by the Board of Public Works and Safety.
(J) Injunctive relief. Whenever a user has violated a pretreatment standard or requirement or continues to violate the provisions of this subchapter, discharge permits or orders issued hereunder, or any other pretreatment requirement, or any order or directive issued by the Board of Public Works and Safety pursuant to this subchapter, the Superintendent, or his or her designee, may petition a judge of a circuit or superior court of the county from which the action sought to be restrained or the action sought to be compelled has arisen, through the City Attorney, for the issuance of a temporary or permanent injunction, as appropriate, which restrains or compels the specific performance of the discharge permit, order, or other requirements imposed by this subchapter 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.
(K) Civil penalties.
(1) Any user which has violated or continues to violate this subchapter, any order or discharge permit issued hereunder, or any other pretreatment standard or requirement shall be liable to the city for a civil penalty of not more than $2,500 per day, per violation for a first violation nor more than $7,500 per day, per violation for subsequent violations, in accordance with I.C. 36-1-3-8(a)(10)(B).
(2) The city 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, including fines, penalties, costs or damages imposed upon the city by the State of Indiana, EPA or other governmental entities pursuant to this subchapter.
(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 prerequisite for taking any other action against a user.
(L) Remedies nonexclusive. The provisions set forth in this section are not exclusive remedies. The city reserves the right to take any, all or any combination of these actions against a noncompliant 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 noncompliant user. These actions may be taken concurrently.
(M) Service.
(1) Any notice of noncompliance, notice of orders, notice of any other directives issued by the city or by the Board of Public Works and Safety may be served upon any principle executive, general partner, corporate officer, or the individual in charge of the user’s wastewater treatment program as designated by the user, and shall be given by either:
(a) Sending a copy of the notice, order or statement by registered or certified mail to the place of business or employment of the person to be notified, with return receipt requested; or
(b) Delivering a copy of the notice, order or statement personally to the person to be notified; or
(c) Leaving a copy of the notice, order or statement at the place of business or employment of the person to be notified.
(2) When service is made by any of the means described, the person making service must make an affidavit stating that he has made this service, the manner in which the service was made, to whom the notice, order or statement was issued, the nature of the notice, order or statement and the date of service. The affidavit must be placed on file with the city.
(3) If, after reasonable effort, service is not obtained by a means described above in division (M)(1) above, service may be made by publishing a notice of the notice, order or statement in each newspaper which the city has currently designated as a newspaper in which it shall publish legal notices. Publication may be made on consecutive days. If service of an order is made by publication, the publication must include a statement indicating generally what action is required by the notice, order or statement and that the exact terms of the notice, order or statement may be obtained from the city.
(N) Effective date of notice, order or statement. The date when the notice, order or statement is considered given is as follows:
(1) If the notice, order or statement is delivered personally or left at the usual place of business or employment, notice is considered given on the day when the notice, order or statement is delivered to the person or left at the person’s usual place of business or employment.
(2) If the notice, order or statement is mailed, notice is considered given on the date shown on the return receipt, or, if no date is shown, on the date when the return receipt is received by the city.
(3) Notice by publication is considered given on the date of the second day that publication was made.
(Ord. 15-2021, passed 11-23-21)