(A) Administrative remedies.
(1) Notification of violation. Whenever the POTW Director finds that any industrial user has violated or is violating this chapter, wastewater permit or any prohibition, limitation or requirements contained therein or any other pretreatment requirement the POTW Director may serve upon such a person a written notice stating the nature of the violation. Notice shall be by U.S. mail first class postage prepaid addressed to the user’s permit address. Within 30 days from the date of this notice, an explanation for the violation and a plan for the satisfactory correction thereof shall be submitted to the town by the user. Submission of this plan does not relieve the discharger of liability for any violations occurring before or after the notice of violation.
(2) Consent orders. The POTW Director is hereby empowered to enter into consent orders, assurances of voluntary compliance or other similar documents establishing an agreement with the person responsible for the non-compliance. Such orders will include specific action to be taken by the discharger to correct the non-compliance within a time period also specified by the order. Consent orders shall have the same force and effect as an administrative order issued pursuant to division (A)(4) below.
(3) Show cause hearing.
(a) The POTW Director may order any industrial user who causes or is responsible for an unauthorized discharge, has violated this chapter or is in non-compliance with a wastewater discharge permit to show cause why a proposed enforcement action should not be taken. In the event the POTW Director determines that a show cause order should be issued, a notice shall be served on the user specifying the time and place for the hearing, the proposed enforcement action, the reasons for such action and a request that the user show cause why this proposed enforcement action should not be taken. The notice of the 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 a corporation.
(b) The POTW Director shall review the evidence presented at the hearing and determine whether the proposed enforcement action is appropriate.
(c) A show cause hearing under this section is not a prerequisite to the assessment of a civil penalty under division (B) below, nor is any action or inaction taken by the POTW Director under this section subject to an administrative appeal under § 51.60(B)(8) of this chapter.
(4) Administrative orders. When the POTW Director finds that an industrial user has violated or continues to violate this chapter, permits or orders issued hereunder, or any other pretreatment requirement the POTW Director may issue an order to cease and desist all such violations and direct those persons in non-compliance to do any of the following:
(a) Immediately comply with all requirements;
(b) Comply in accordance with a compliance time schedule set forth in the order;
(c) Take appropriate remedial or preventive action in the event of a continuing or threatened violation; and
(d) Disconnect unless adequate treatment facilities, devices or other related appurtenances are installed and properly operated within a specified time period.
(5) Emergency suspensions.
(a) The POTW Director may suspend the wastewater treatment service and/or wastewater permit when such suspension is necessary in order to stop an actual or threatened discharge which presents or may present an imminent or substantial endangerment to the health or welfare of persons or the environment, interferes with the POTW or causes the POTW to violate any condition of its NPDES or non-discharge permit.
(b) Any user notified of a suspension of the wastewater treatment service and/or the wastewater permit shall immediately stop or eliminate the contribution. A hearing will be held within 15 days of the notice of suspension to determine whether the suspension may be lifted or the user’s waste discharge permit terminated. In the event of a failure to comply voluntarily with the suspension order, the POTW Director shall take such steps as deemed necessary including immediate severance of the sewer connection, to prevent or minimize damage to the POTW system or endangerment to any individuals. The POTW Director shall reinstate the wastewater permit and the wastewater treatment service upon proof of the elimination of the non-compliant discharge. The industrial user shall submit a detailed written statement describing the causes of the harmful contribution and the measures taken to prevent any future occurrence to the POTW Director prior to the date of the above-described hearing.
(6) Termination of permit or permission to discharge.
(a) The POTW Director may revoke a wastewater discharge permit or permission to discharge for good cause, including, but not limited to, the following reasons:
1. Failure to accurately report the wastewater constituents and characteristics of his or her discharge;
2. Failure to report significant changes in operations, or wastewater constituents and characteristics;
3. Refusal of reasonable access to the user’s premises for the purpose of inspection or monitoring; or
4. Violation of conditions of the permit or permission to discharge, conditions of this chapter or any applicable state and federal regulations.
(b) Non-compliant industrial users will be notified of the proposed termination of their wastewater permit and will be offered an opportunity to show cause under division (A) above why the proposed action should not be taken.
(B) Civil penalties.
(1) Any user who is found to have failed to comply with any provision of this chapter, or the orders, rules, regulations and permits issued hereunder, may be assessed a civil penalty up to $25,000 per day per violation.
(a) Penalties between $10,000 and $25,000 per day per violation may be assessed against a violator if:
1. For any class of violation, only if a civil penalty has been imposed against the violator within the five years preceding the violation; or
2. In the case of failure to file, submit or make available, as the case may be any documents, data or reports required by this chapter, or the orders, rules, regulations and permits issued hereunder, only if the POTW Director determines that the violation was intentional and a civil penalty has been imposed against the violator within the five years preceding the violation.
(2) Any user who is found to have conducted malicious damage to the public sewer system, treatment works and/or all appurtenances shall be subject to punitive action and penalties.
(3) In determining the amount of the civil penalty, the POTW Director shall consider the following:
(a) The degree and extent of the harm to the natural resources, to the public health or to public or private property resulting from the violation;
(b) The duration and gravity of the violation;
(c) The effect on ground or surface water quantity or quality or on air quality;
(d) The cost of rectifying the damage;
(e) The amount of money saved by non-compliance;
(f) Whether the violation was committed willfully or intentionally;
(g) The prior record of the violator in complying or failing to comply with the pretreatment program; and
(h) The costs of enforcement to the town.
(4) Appeals of civil penalties assessed in accordance with this section shall be as provided in § 51.60(B)(8) of this chapter.
(C) Other available remedies. Remedies, in addition to those previously mentioned in this chapter, are available to the POTW Director who may use any single one or combination against a non-compliant user. Additional available remedies include, but are not limited to:
(1) Criminal violations. The District Attorney for the county may, at the request of the town, prosecute non-compliant users who violate the provisions of G.S. § 143-215.6B;
(2) Injunctive relief. Whenever a user is in violation of the provisions of this chapter or an order or permit issued hereunder, the POTW Director, through the Town Attorney, may petition the Superior Court of Justice for the issuance of a restraining order or a preliminary and permanent injunction which restrains or compels the activities in question;
(3) Water supply severance. Whenever an industrial user is in violation of the provisions of this chapter or an order or permit issued hereunder, water service to the industrial user may be severed and service will only recommence, at the user’s expense, after it has satisfactorily demonstrated ability to comply; and
(4) Public nuisances. Any violation of the prohibitions or effluent limitations of this chapter or of a permit or order issued hereunder, is hereby declared a public nuisance and shall be corrected or abated as directed by the POTW Director. Any person(s) creating a public nuisance shall be subject to the provisions of the town’s regulations governing such nuisances, including reimbursing the POTW for any costs incurred in removing, abating or remedying said nuisance.
(D) Remedies non-exclusive. The remedies provided for in this chapter are not exclusive. The POTW Director may take any, all or any combination of these actions against a non-compliant user. Enforcement of pretreatment violations will generally be in accordance with town’s enforcement response plan. However, the POTW Director may take other action against any user when the circumstances warrant. Further, the POTW Director is empowered to take more than one enforcement action against any non-compliant user.
(E) Annual publication of significant non-compliance. At least annually, the POTW Director shall publish in a newspaper of general circulation that provides meaningful public notice within the jurisdiction(s) served by the POTW, a list of those industrial users which were found to be in significant non-compliance, also referred to as reportable non-compliance, in 15A NCAC 2H .0903(b)(10), with applicable pretreatment standards and requirements, during the previous 12 months.
(F) Affirmative defenses to discharge violations.
(1) Upset.
(a) An upset shall constitute an affirmative defense to an action brought for non-compliance with categorical pretreatment standards if the requirements of division (F)(1)(b) below are met.
(b) 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 workman-like manner and in compliance with applicable operation and maintenance procedures; and
3. The user has submitted the following information to the POTW Director 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 non-compliance;
b. 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
c. Steps being taken and/or planned to reduce, eliminate and prevent recurrence of the non-compliance.
(c) In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof.
(d) 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.
(e) Users 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 requirement applies in the situation where, among other things, the primary source of power of the treatment facility is reduced, lost or fails.
(2) Prohibited discharge standards defense. A user shall have an affirmative defense to an enforcement action brought against it for non-compliance with the general prohibitions in § 51.49(A) of this chapter or the specific prohibitions in § 51.49(B)(2), (B)(3), (B)(5) through (B)(7) and (B)(9) through (B)(23) of this chapter 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 NPDES permit, and in the case of interference, was in compliance with applicable sludge use or disposal requirements.
(3) Bypass.
(a) 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 (F)(1) and (F)(2) above.
(b) 1. If a user knows in advance of the need for a bypass, it shall submit prior notice to the POTW Director, at least ten days before the date of the bypass, if possible.
2. A user shall submit oral notice to the POTW Director 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 this 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 POTW Director may waive the written report on a case-by-case basis if the oral report has been received within 24 hours.
(c) 1. Bypass is prohibited, and the POTW Director may take an 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 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 back-up 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 (F)(3)(b) above.
2. The POTW Director may approve an anticipated bypass, after considering its adverse effects, if the POTW Director determines that it will meet the three conditions listed in division (F)(3)(c)1. above.
(Ord. 2007-13, passed 11-6-2012)