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(A) Criminal penalty. A person who violates any provision of this chapter shall be guilty of a Class C misdemeanor for each day or portion thereof during which the violation is continued. Each offense is punishable by a fine not to exceed $2,000.
(B) Culpable mental state not required. A culpable mental state is not required to prove a criminal offense under this chapter.
(C) Remedies cumulative.
(1) All remedies authorized under this chapter are cumulative of all others unless otherwise expressly provided.
(2) Accordingly, the filing of a criminal action shall not preclude the pursuit of a civil or administrative action for violation of this chapter nor shall the filing of a civil action preclude the pursuit of any other action or remedy, administrative or criminal.
(D) Persons responsible. A person is responsible for a violation of this chapter if:
(1) The person commits or assists in the commission of a violation; or
(2) The person is the owner, occupant or manager of the property or facilities determined to be the source of a discharge of waste made in violation of this chapter.
(E) Tenant responsibility. Where an owner of property leases or rents the same to any person as tenant or lessee, the owner or tenant or both may be held responsible by the Director for noncompliance with the provisions of this chapter.
(F) Expenses, loss or damage. Any person violating the provisions of this chapter shall be liable to the city for all expenses, loss or damage incurred by the city by reason of the violation.
(G) Civil actions. The City Attorney is hereby authorized to enforce this chapter by civil court actions in accordance with the procedures therefor provided by state or federal law, including, without limitation, actions for injunction, damages, declaratory relief or other remedies that the City Attorney shall deem appropriate to pursue.
(H) Administrative enforcement. In addition to any other actions or remedies authorized in this chapter, the Director is hereby authorized to enforce this chapter through the exercise of any one or more of the following administrative actions and, unless otherwise expressly set forth herein, the selection or use of one action or remedy by the Director shall not be construed to limit the authority of the Director to pursue any other enforcement action or remedy nor require the pursuit of a particular action or remedy as a condition precedent to the use of any other action or remedy:
(1) Notice of violation (NOV). Whenever the Director determines that any person has violated or is violating this chapter, the conditions of any wastewater discharge permit or order issued under this chapter, or any other pretreatment requirement, the Director may, but shall not be required, to serve upon the person a written notice of violation describing the violation and the actions required to correct the same. The notice of violation shall inform the recipient that, within 14 calendar days of receipt thereof, the person receiving same shall provide to the Director an explanation of the violation and a plan for the satisfactory correction and prevention thereof, to include specific actions for correction of the violation; provided, however, that:
(a) Submission of the proposed corrective plan shall in no form or manner relieve the user of criminal or civil liability for violations of this chapter whether before or after receipt of the notice of violation; and
(b) Nothing in this division (H)(1) shall be construed to limit the authority of the Director to pursue any other enforcement action or remedy, including, without limitation, the emergency actions the Director determines to be necessary, without first issuing a notice of violation.
(2) Assurances of voluntary compliance. The Director is hereby authorized to enter into assurances of voluntary compliance, consent orders or similar documents establishing an agreement for voluntary compliance with any person responsible for a violation of this chapter. The documents shall describe the violation determined to exist, the specific actions agreed to be taken by the person to correct the noncompliance and the time period for completion of the corrective actions specified. The assurance of voluntary compliance, consent order or similar document evidencing the intent of the responsible person to ameliorate voluntarily the described violations of this chapter shall be signed and dated by the person responsible for compliance and shall be judicially enforceable; provided, however, that, in the event of noncompliance with an assurance of voluntary compliance, consent order or similar document, the Director may pursue any procedure available under this chapter or otherwise to enforce compliance. An assurance of voluntary compliance, consent order or similar document shall not include terms limiting or restricting the actions or remedies available for violations of this chapter or the terms of the instrument.
(3) Show cause hearing. The Director may order any person responsible for a violation of this chapter, the conditions of a wastewater discharge permit or any other pretreatment standard or requirement, to appear before the Director and show cause why a proposed enforcement action should not be taken. Notice shall be served on the person responsible for a violation specifying the time and place for the meeting, the nature of the violation and enforcement action proposed, the reasons for the action and a request that the person show cause why the proposed enforcement action should not be taken. Notice of the show cause hearing shall be served in person or by certified mail, return receipt requested, at least three calendar days prior to the hearing. The notice may be served upon any employee, agent or other authorized representative of the person responsible for the violation. Whether or not the person appears as ordered, immediate enforcement action may be pursued following the noticed hearing date; provided, however, a show cause hearing shall not be a prerequisite for taking any other action against the person; and, provided, further, that, the issuance of a show cause notice shall not prevent the Director from pursuing emergency actions if the Director determines the actions are required to prevent pass through or other damage or interference with the POTW.
(4) Compliance orders. When the Director determines that a person has violated or continues to violate the provisions of this chapter or the conditions of a wastewater discharge permit or other order issued hereunder or any other pretreatment standard or requirement, the Director may issue an order to the person responsible for the discharge directing that the person cure the noncompliance within the time period and in the manner specified in the compliance order. If the person does not comply within the time specified in the compliance order, the Director may discontinue and disconnect water and/or wastewater service to the noncomplying premises unless adequate treatment facilities, devices or other related appurtenances are installed and properly operated. The compliance order may also contain other and further requirements as the Director shall deem necessary to protect the POTW or sanitary sewer including, without limitation, additional self-monitoring, reporting and waste management practices designed to minimize the amount of pollutants discharged to the POTW. A compliance order issued hereunder may not extend a deadline for compliance established for a federal pretreatment standard or requirement established by federal law or by EPA order, regulation or otherwise. A compliance order issued hereunder likewise shall not release the noncomplying person of liability for any violation including, without limitation, any continuing violation. Issuance of a compliance order hereunder shall not be a prerequisite to taking any other action against the person.
(5) Cease and desist orders. When the Director determines that a person is violating this chapter, the conditions of the person’s wastewater discharge permit or other order issued hereunder, or that past violations committed by the person are likely to recur, the Director may issue an order directing the person to cease and desist immediately all violations and directing the person to:
(a) Immediately comply with all requirements of this chapter, the conditions of a wastewater discharge permit or other order issued hereunder; and
(b) Take remedial or preventive action as may be needed to address properly a present, continuing or threatened violation including, without limitation, the halting of operations and/or termination of the wastewater discharge to the POTW through disconnection or otherwise. Issuance of a cease and desist order shall not be a prerequisite to taking any other action against the noncomplying person hereunder.
(6) Civil penalties. Notwithstanding any other provisions of this chapter, if:
(a) A person has received actual notice of the provisions of this chapter; and
(b) After the person received notice of the provisions of this chapter, the person committed or continued acts in violation of this chapter or failed to take action necessary for compliance with this chapter, the City Attorney may initiate a suit against the owner, occupant or manager of premises that are in violation of this chapter, to recover a civil penalty not to exceed $5,000 per day for each violation. Each day or fractional part thereof that the noncompliance continues shall constitute a separate violation for which civil penalties shall accrue under this chapter. A suit for civil penalties hereunder shall not prevent nor be a prerequisite for taking any other action against a person in violation of this chapter. The suit may also include therein a request for other and further relief as the City Attorney shall deem advisable including, without limitation, an action for injunction or claim for damages to recover for expenses, loss or damage to city property occasioned by reason of the violation.
(7) Emergency suspensions. Notwithstanding any other provision hereof, if the Director determines that an actual or threatened discharge reasonably appears to present an imminent danger to the health, safety and welfare of persons or property, or presents an imminent danger of pass-through or other threat to the environment, or otherwise threatens to interfere with the operation of the POTW, the Director, upon verbal or written notice to the person responsible for the discharge, may immediately suspend water and/or wastewater service to the discharging premises and initiate emergency measures to halt or prevent the discharge by disconnection from the city’s wastewater system or otherwise. Any person notified of the suspension of its discharge shall immediately cease the discharge or eliminate its contribution to the wastestream. If the person responsible for the discharge fails to comply immediately with the emergency suspension order, the Director may immediately undertake all necessary measures to prevent or minimize damage to the POTW, to the environment or to persons or property including, without limitation, immediate severance of sewer connection(s). Unless further proceedings for termination of the discharge have been initiated, the Director may allow recommencement of the discharge when the responsible person has demonstrated to the satisfaction of the Director that the period of endangerment has passed. Permission to recommence the discharge shall not constitute a waiver of the city’s right to pursue criminal or civil penalties or other relief authorized hereunder. Prior to recommencement of the suspended discharge, the person responsible for the discharge shall submit for the approval of the Director a detailed report describing the causes of the harmful discharge and the measures implemented to prevent the future recurrence of the conditions causing the imminent endangerment. Nothing herein shall be construed to require a hearing prior to an emergency suspension under this part.
(8) Termination of discharge.
(a) In the event the Director determines that a person has violated the provisions of this chapter, the conditions of its wastewater discharge permit or other order(s) issued hereunder, the Director may:
1. Order the person to terminate its discharge to the POTW; and
2. Enforce termination of the discharge by severance of the sewer connection(s).
(b) Termination of discharge and severance of the wastewater connection to the POTW under this section shall be made only after satisfaction of the procedures for a show cause hearing in accordance with the procedures set out above.
(9) Termination of water supply. In the event the Director determines that a person has violated this chapter, the conditions of its wastewater discharge permit, or other order(s) issued hereunder, the Director may, in addition to any other remedies available under this chapter, issued an order terminating water service to this noncomplying person’s premises. Except in the case of emergency, termination of water supply hereunder shall be made only after satisfaction of the procedures for a show cause hearing set forth above.
(10) Publication of noncompliant users list. The Director shall publish annually in a newspaper of general circulation in the city a list of the industrial users that, during the previous 12 months, the Director determined to be in significant noncompliance with applicable pretreatment standards and requirements of this chapter. For purposes of this division (H)(10), SIGNIFICANT NONCOMPLIANCE shall mean:
(a) Chronic violations of wastewater discharge limits, defined here as those in which 66% or more of wastewater measurements taken during a six-month period exceed the daily maximum limit or average limit for the same pollutant parameter by any amount;
(b) Technical review criteria (TRC) violations, defined here as those in which 33% or more of wastewater measurements taken for each pollutant parameter during a six-month period equals or exceeds the product of the daily maximum limit or the average limit multiplied by the applicable criteria (1.4 for BOD, TSS, fats, oils and grease, and 1.2 for all other pollutants, except pH);
(c) A discharge violation that the Director believes has caused, alone or in combination with other discharges, interference or pass-through;
(d) A discharge of pollutants that has caused imminent endangerment to the public or to the environment, or that otherwise has resulted in the city’s exercise of its emergency authority to halt or prevent a discharge;
(e) Failure to meet, within 90 days of the scheduled date, a compliance schedule milestone contained in a wastewater discharge permit or enforcement order for starting construction, completing construction or otherwise attaining final compliance;
(f) Failure to provide within 30 days after the due date, any required reports, including baseline monitoring reports, 90-day compliance reports, periodic self-monitoring reports and reports on compliance with compliance schedules;
(g) Failure to accurately report noncompliance; and
(h) Any other violation which the city determines has or will adversely affect the operation or implementation of the local pretreatment program.
(Ord. 970318A, passed 3-18-1997)