1042.13  ENFORCEMENT.
   (a)   Violations.  It shall be a violation of this chapter for any user to:
      (1)   Fail to completely and/or accurately report the wastewater constituents and/or characteristics of the industrial user’s discharge;
      (2)   Fail to report significant changes in the industrial user’s operations or wastewater constituents and/or characteristics within the time frames provided in Section 1042.08(g)(1) of this Code;
      (3)   Refuse reasonable access to the industrial user’s premises, waste discharge, or sample location for the purpose of inspection or monitoring;
      (4)   Restrict, lockout or prevent, directly or indirectly, access to any monitoring facilities constructed on public or private property. The locking or securing of the monitoring facility shall not constitute a violation pursuant to this subsection, provided, that upon request reasonable access to the facility is promptly provided to the Department;
      (5)   Restrict, interfere, tamper with, or render inaccurate any of the Department’s monitoring devices including, but not limited to, samplers;
      (6)   Fail to comply with any condition or requirement of the industrial user’s wastewater discharge permit;
      (7)   Fail to comply with any limitation, prohibition, or requirement of this chapter including any rule, regulation, or order issued hereunder. Industrial users acting in full compliance with wastewater discharge permits issued prior to the effective date of this chapter shall be deemed to be in compliance with the requirements of this chapter, and such permits shall remain in effect and be enforceable under this chapter until a superseding permit is effective. Industrial users shall comply with applicable national categorical pretreatment standards and requirements on the date specified in the Federal Regulations, regardless of compliance schedules.
   (b)   Upsets.  An upset shall constitute an affirmative defense to an action brought for noncompliance with national categorical pretreatment standards where the requirements of subsection (1) of this section are met.
      (1)   An industrial user who wishes to establish the affirmative defense 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(s) of the upset;
         B.   At the time, the facility was being operated in a prudent and workmanlike manner and in compliance with applicable operation and maintenance procedures;
         C.   The industrial user has submitted the following information to the Department, orally or in writing, within 24 hours of becoming aware of the upset and where this information is provided orally, a written submission must be provided within five days:
            1.   A description of the discharge and cause of noncompliance;
            2.   The period of noncompliance including exact dates and times or, if not corrected, the anticipated time the noncompliance is expected to continue; and
            3.   Steps being taken and/or planned to reduce, eliminate and prevent recurrence of the noncompliance.
      (2)   In any enforcement proceeding, the industrial user seeking to establish the occurrence of an upset shall have the burden of proof;
      (3)   The industrial user shall control production of all discharges to the extent necessary to maintain compliance with this chapter 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.
   (c)   Bypass.  Bypasses are prohibited unless the bypass does not cause a violation of pretreatment standards or requirements, but only if it is for essential maintenance to ensure efficient operation of the treatment system. These bypasses are not subject to the provisions of subsections (1) and (2) of this section.
      (1)   Notice of anticipated bypass.  Industrial users anticipating a bypass shall submit notice to the Department at least ten days in advance.
      (2)   Notice of unanticipated bypass.  An industrial user shall submit oral notice of an unanticipated bypass that exceeds applicable pretreatment standards within 24 hours from the time the industrial user becomes or should have become aware of the bypass. A written submission shall be provided within five days of the time the industrial user becomes or should have become aware of the bypass. The written submission shall contain a description of the bypass including exact dates and times, and if the bypass has not been corrected, the prevent reoccurrence of the bypass.
      (3)   Prohibition of bypass and enforcement.  Bypass is prohibited, and the Department may take enforcement action against a user for a bypass, unless:
         A.   The 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 waste, 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 preventative maintenance; and
         C.   The industrial user properly notified the Department as described in subsection (c)(2) of this section.
      (4)   Bypass approval.  Where it meets all conditions in subsection (c)(3) of this section, the Department may approve an anticipated bypass.
   (d)   Where one or more of the measurements taken for any pollutant defined in Section 1042.06(b) of this Code during a six-month period exceed by any magnitude the daily maximum non-detect limit for the same parameter, the industrial user may develop and implement pollution prevention initiatives, or a BMP, as part of its response. The Department may, as part of an administrative order, also require development of a BMP as a part of the Department’s enforcement response. Upon approval of the Department, these pollution prevention initiative, or BMPs shall be made an enforceable part of the wastewater discharge permit. Industrial users shall provide, at six-month intervals, analytical results and certifications in support of its implementation of an approved pollution prevention initiative or BMPs. Upon demonstration of compliance, the industrial user may request to be relieved of this implementation requirement.
   (e)   Emergency Suspensions and Orders.  The Department may order suspension of the sewer or wastewater treatment service and/or a wastewater discharge permit where, in the opinion of the Department, such suspension is necessary to stop any actual or threatened discharge which presents or may present an imminent or significant hazard to the health or welfare of persons or to the environment, interferes or may interfere with the POTW, or causes or may cause the City of Detroit to violate any condition of its NPDES permit. Any person notified of a suspension of the sewer or wastewater treatment service and/or the wastewater discharge permit shall immediately stop or eliminate the contribution. In the event the Department provides informal notification under this section, written confirmation and an order shall be provided within 24 hours. In the event of a failure of the person to comply voluntarily with any suspension or revocation order,  the Department shall take such steps as deemed necessary, including immediate severance of the sewer connection or services, to prevent or minimize damage to the POTW system or danger to any individual or the environment. In the event such steps are taken, the Director shall notify the industrial user within 24 hours in writing of such action and order, and the specific recourse available. In any event, the Department shall provide the industrial user with an opportunity for a hearing before the Director, or his designated representative, within ten days of such action. The industrial user shall submit a detailed written statement to the Department within 15 days of the occurrence describing the causes of the harmful contribution and the measures taken to prevent any future occurrence. Upon proof of elimination of the noncomplying discharge, the Department shall reinstate the wastewater discharge permit and/or the sewer or wastewater treatment service.
   (f)   Notice of Violation.  Except in the case of an actual or threatened discharge as specified in subsection (e) of this section, whenever the Department has reason to believe that any industrial user has violated or is violating this chapter, the Department shall serve a written notice stating the nature of the violation upon such industrial user. Where applicable, the Department shall pursue appropriate escalating enforcement action as defined within its approved enforcement response plan. The failure of the Department to issue a notice of violation shall not preclude the Department from escalating its enforcement response.
   (g)   Administrative Actions.  Whenever the Department has reasonable grounds to believe that a user is violating, or has violated, a provision of its wastewater discharge permit, or a pretreatment standard or requirement or any prohibition of this chapter, the Department may initiate appropriate administrative enforcement action, except in the case of emergency or flagrant violation, in order to compel the industrial user to eliminate or to remedy such violation as soon as possible.
      (1)   A.   Conferences.  The Department may order any person, who violates this chapter, to attend a conference wherein the Department may endeavor to cause the user to eliminate or remedy the violation by establishing an enforceable compliance schedule. The notice of violation shall be served at least ten days before the scheduled conference and shall set forth the date, time, and place thereof. The conference shall be conducted by a representative of the Department. The industrial user shall present a plan and schedule for achieving compliance with this chapter. Nothing contained herein shall require the Department to accept or agree to any proposed plan or schedule, or to prevent the Department from proceeding with a show cause hearing as set forth in subsection (2) of this section. If the attendees agree upon a compliance schedule, the user and the Department’s duly authorized representative may enter, by consent, into a compliance agreement or an administrative order setting forth the terms of such agreement. An industrial user must exhibit good faith and expeditious efforts to comply with this chapter and any procedures, requirements, and agreements hereunder.
         B.   Compliance schedules.  The user and the Department may agree upon a schedule which sets forth the terms and conditions, and time periods or schedules for completion of actions to remedy or to eliminate the causes of violation. These schedules may be developed as part of a compliance agreement, administrative consent order. Schedules developed under this subsection shall adhere to the following conditions:
            1.   The schedule shall contain increments of progress in the form of dates for the commencement and completion of major events leading to the construction and operation of upgraded or additional pretreatment facilities, or to the implementation of additional operation and maintenance procedures required for the industrial user to meet the applicable pretreatment requirements and standards including, but not limited to, hiring an engineer, completing preliminary plans, completing final plans, executing contracts for major components, commencing construction, and completing construction;
            2.   No single increment referred to in subsection 1. of this section shall exceed nine months;
            3.   Not later than 14 days following each date in the schedule and the final date for compliance, the industrial user shall submit a progress report to the Department including, at a minimum, whether it complied with the increment of progress to be met on such date and, if not, the date which it expects to comply with this increment of progress, the reason(s) for delay, and the steps being taken by the industrial user to return to the established schedule; and
            4.   Any deviations from the compliance schedule may result in the industrial user being found in violation of this chapter.
         C.   Administrative orders.  The Department may order any industrial user, who violates or continues to violate this chapter or a duly issued permit, to install and to properly operate devices, treatment facilities, or other related appurtenances. In addition, orders may contain such other requirements as might reasonably be necessary and appropriate to address the violation including the installation of pretreatment technology, additional self-monitoring and management practices, implementation of a waste minimization assessment to identify and implement feasible source reduction, and recycling practices to reduce the generation or release of pollutants at the facility. An order may be either an administrative consent order, which is the result of an agreement, or a unilateral administrative order.
      (2)   Show cause hearing.  The Department may order any industrial user, who violates this chapter or allows such violation to occur, to show cause before the Department why a proposed enforcement action should not be taken. A notice shall be served upon the industrial user specifying the time and place of a hearing before the Department regarding the violation, the reason(s) why the action is to be taken, the proposed enforcement action, and directing the industrial user to show cause before the Department why any proposed enforcement action should not be taken. The notice of the hearing shall be served personally, or by registered or certified mail with return receipt requested, at least ten days before the hearing. Service may be made upon any agent or officer of a corporation, or its authorized representative.
         A.   Hearing proceeding.  The hearing shall be conducted in accordance with the procedures adopted by the Board. A hearings officer shall conduct the show cause hearing and take the evidence, and may:
            1.   In the name of the Board, issue notices of hearing requesting the attendance and testimony of witnesses and the production of evidence relevant to any matter involved in such hearing;
            2.   Transmit a report of the evidence and hearing, including transcripts and other evidence, together with recommendations to the Director for action thereon.
         B.   Transcript.  At any show cause hearing held pursuant to this chapter, testimony shall be recorded by a court reporter.
      (3)   Actions.  After a show cause hearing has been conducted, the hearings officer shall issue an order to the industrial user directing any of the following actions:
         A.   Immediate compliance with the industrial user’s wastewater discharge permit or with any applicable limitation, condition, restriction or requirement of this chapter, or applicable local, State or Federal law or regulation;
         B.   Pretreatment of waste by installation of adequate treatment equipment or proper operation and maintenance of existing treatment equipment be accomplished within a specified time period;
         C.   Submission of compliance reports on effluent quality and quantity as determined by self-monitoring and analysis during a specified time period;
         D.   Submission of periodic reports on effluent quality and quantity determined by self-monitoring analysis throughout the final period set by a compliance date;
         E.   Control of discharge quantities;
         F.   Payment of costs for reasonable and necessary inspection, monitoring, and administration of the industrial user’s activities by the Department during compliance efforts; and/or
         G.   Any such other orders as are appropriate including, but not limited to, immediate termination of sewer or wastewater treatment services, or revocation of a wastewater discharge permit, or orders directing that following a specified time period sewer or wastewater treatment service will be discontinued unless adequate treatment facilities, devices, or operation and maintenance practices have been employed.
         H.   A finding the user has demonstrated by a preponderance of the evidence that a violation either of this chapter or of a duly issued permit did not occur.
      (4)   Public notification of significant noncompliance.  The Department shall publish in the largest daily newspaper published in the City of Detroit and the City of Wayne a list of all industrial users which were in significant noncompliance with applicable pretreatment requirements at any time during the previous 12 months. All industrial users identified in a proposed publication shall be provided with a copy of the proposed notice at least 30 days before publication and allowed an opportunity to comment as to its accuracy.
   (h)   Legal Actions.
      (1)   Criminal action.  Any user, who violates any provision of this chapter including the failure to pay any fees, fines, charges or surcharges imposed hereby, or any condition or limitation of a permit issued pursuant thereto, or who knowingly makes any false statements, representations or certification in any application, record, report, plan or other document filed or required to be maintained pursuant to this chapter or wastewater discharge permit, or who tampers with or knowingly renders inaccurate any monitoring device required under this chapter, is guilty of a misdemeanor and, upon conviction, shall be punished by a fine not to exceed five hundred dollars ($500.00) for each violation per day, or by imprisonment for not more than 90 days, or by both.
      (2)   Civil action.  Whenever the Department has reasonable grounds to believe that a user is violating, or has violated, a provision of its wastewater discharge permit, a pretreatment standard or requirement or any requirement of this chapter, the Director may commence a civil action to compel compliance in a court of competent jurisdiction to enjoin the user from discharging, and/or to obtain appropriate relief to remedy the violations. The Department or Board may also seek additional legal and/or equitable relief. The commencement of suit neither constitutes an exclusive election of remedies nor prohibits the Department, Director, Board, or City of Detroit or the City of Wayne from commencing action in Federal Court for discharges believed to be in violation of this chapter, State and Federal requirements contained in the Clean Water Act, the City of Detroit’s NPDES permit, or other applicable laws or requirements. In addition, the City of Detroit may recover the reasonable attorney fees, court costs, court reporters’ fees, and other unusual expenses related to enforcement activities or litigation against the person found to have violated this chapter, or the orders, rules, regulations and permits issued hereunder.
      (3)   All fines, costs, and penalties which are imposed by any court of competent jurisdiction shall be payable to the City of Detroit Water and Sewerage Department.
(Ord. 2013-05.  Passed 6-18-13.)