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Any user that violates the provisions of this chapter is subject to discharge termination. Such user will be notified of the proposed termination of its discharge and be offered an opportunity to show cause under this chapter why the proposed action should not be taken. Exercise of this option by the Control Authority shall not be a bar to, or a prerequisite for, taking any other action against the user.
(Ord. 2005-8-226, passed 8-2-05)
When the Control Authority finds that a user has violated (or continues to violate) any provision of this chapter, a wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or requirement, the Control Authority may petition the appropriate court through the Control Authority's Attorney for the issuance or 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 this chapter on activities of the user. The Control Authority may also seek such other action as is appropriate for legal and/or equitable relief, including a requirement for the user to conduct environmental mediation. A petition for injunctive relief shall not be a bar against, or a prerequisite for, taking any other action against a user.
(Ord. 2005-8-226, passed 8-2-05; Am. Ord. 2007-06-291, passed 6-5-07)
The Control Authority may recover reasonable attorney's fees, court costs, any other expenses associated with any and all enforcement activities provided by this chapter, including sampling and monitoring expenses, and the cost of any actual damages or fines incurred by the Control Authority.
(Ord. 2005-8-226, passed 8-2-05)
The remedies provided for in this chapter are not exclusive. The Control Authority may take any, all, or any combination of these actions against a noncompliant user. Enforcement of pretreatment violators will generally be in accordance with the Control Authority's enforcement response plan. However, the Control Authorities may take other action against any user permitted by state law.
(Ord. 2005-8-226, passed 8-2-05)
(A) For the purposes of this section,
UPSET
means an exceptional incident in which there is unintentional and temporary noncompliance with categorical pretreatment standards because of factors beyond the reasonable control of the user. An
UPSET
does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment tactics, lack of preventive maintenance, or careless or improper operation.
(B) An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the requirements of division (C) are met.
(C) 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 Control Authorities as soon as possible but no later than 24 hours of becoming aware of the upset. If this information is provided orally, a written submission must be provided within five business days which shall include:
(a) A description of the indirect discharge and cause of noncompliance;
(b) The period of noncompliance, including exact dates and times or, if not corrected, the anticipated time the noncompliance is expected to continue;
(c) Steps being taken and/or planned to reduce, eliminate, and prevent recurrence of the noncompliance.
(D) In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof.
(E) Users will have the opportunity for a judicial determination on any claims of upset only in an enforcement action brought for noncompliance with categorical pretreatment standards.
(F) 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.
(Ord. 2005-8-226, passed 8-2-05; Am. Ord. 2007-06-291, passed 6-5-07)
A user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the prohibitions in this chapter or the specific prohibitions except those listed in § 52.009(B)(1), (2), and (8), 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 entity exists for each pollutant discharged and the user was in compliance with each limit directly prior to, 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 Control Authority was regularly in compliance with its NPDES permit, and in the case of interference was in compliance with applicable biosolids (sludge) use or disposal requirements.
(Ord. 2005-8-226, passed 8-2-05)
(A) For the purposes of this section:
(1) BYPASS means the intentional diversion of wastestreams 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 causes 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.
(B) 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 essential for maintenance to assure efficient operation. These bypasses are not subject to the provision of divisions (C) and (D) of this section.
(C) (1) If a user knows in advance of the need for a bypass, it shall submit prior notice to the Control Authority, at least ten business days before the date of the bypass, if possible.
(2) A user shall submit oral notice to the Control Authority of an unanticipated bypass that exceeds applicable pretreatment standards as soon as possible but no later than 24 hours from the time it becomes aware of the bypass. A written submission shall also be provided within five business days of the 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 the 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.
(D) (1) Bypass is prohibited, and the Control Authority may take an enforcement action against a user for a bypass, unless:
(a) Bypass was unavoidable to prevent loss of life, personal injury, 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 (C) of this section.
(2) The Control Authority may approve an anticipated bypass, after considering its adverse effects, if the Control Authority determines that it will meet the three conditions listed in division (D)(1) of this section.
(Ord. 2005-8-226, passed 8-2-05)
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