(A) Enforcement response plan. The city shall develop and implement an enforcement response plan which contains detailed procedures indicating how the city will investigate and respond to instances of industrial user noncompliance in accordance with 40 CFR 403.8(f)(5). The major types of enforcement responses to be implemented by the city are identified below.
(B) Enforcement actions.
(1) Notification of violation. Whenever the pretreatment coordinator finds that any user has violated or is violating this chapter or its discharge permit or any prohibition contained herein, the pretreatment coordinator shall serve upon such person a written notice stating the nature of the violation. When required by the pretreatment coordinator, within 30 days from the date of the notice the industrial user shall submit a detailed explanation concerning the cause of the violation and actions that will be taken to circumvent future violations. Submission of this plan in no way relieves the user of liability for any action occurring before or after receipt of the notice of violation.
(2) Consent orders. The pretreatment coordinator is hereby empowered to enter into consent orders, assurances of voluntary compliance, or other similar documents establishing an agreement with the industrial user responsible for the noncompliance. Such orders will include specific action to be taken by the industrial user to correct the noncompliance within a time period also specified by the order.
(3) Show cause hearing.
(a) The Director of Public Works may order any individual user which causes or contributes to violations of this chapter or wastewater discharge permit or order issued hereunder or any other pretreatment standard or requirement, to show cause before the director why a proposed enforcement action should not be taken. Notice shall be served on the user specifying the time and place for the meeting, the proposed enforcement action and 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 meeting shall be served personally or by registered or certified mail (return receipt requested) at least ten days prior to the hearing. Such notice may be served on any principal executive, general partner or corporate officer. Whether or not a duly notified industrial user appears as noticed, immediate enforcement action may be pursued.
(b) The Director of Public Works shall conduct any show cause hearing ordered pursuant to this section and may:
1. Issue notices requesting the attendance of witnesses and the production of evidence relevant to matters involved in such hearing;
2. Take evidence;
3. Make findings; and
4. Order, on behalf of the city, any enforcement action authorized pursuant to this chapter which he shall deem reasonably necessary upon the basis of such findings.
(c) The Director of Public Works shall afford reasonable opportunity for any person who is the subject of a proposed enforcement action to present evidence and to question all persons who shall appear at such hearing. Any person who shall be the subject of such hearing may be represented by legal counsel.
(4) Compliance order. When the Director of Public Works, upon the basis of evidence received at a show cause hearing ordered pursuant to this section, finds that an industrial user has violated or continues to violate this chapter or a permit or order issued there under or any other pretreatment standard or requirement, he may issue an order to the industrial user responsible for the discharge directing that following a specified time period, sewer service shall be discontinued unless adequate treatment facilities, devices, or other related appurtenances have been installed and are properly operated. Orders may also contain such other requirements as might be reasonably necessary and appropriate to address the noncompliance, including the installation of pretreatment technology, additional self-monitoring, and management practices. 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 a violation, including any continuing violation.
(5) Cease and desist orders. When the Director of Public Works, upon the basis of evidence received at a show cause hearing ordered pursuant to this section, finds that an industrial user has violated or continues to violate this chapter or any permit or order issued hereunder, the city may issue an order to cease and desist all such violations and direct those persons in noncompliance to:
(a) Comply forthwith; or
(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.
(6) Emergency suspensions.
(a) The pretreatment coordinator is authorized, without prior notice or hearing, to immediately suspend the wastewater service and/or industrial user permit when such suspension is necessary, in the opinion of the pretreatment coordinator, 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, to the environment, causes interference to the POTW or causes the city to violate any conditions of its NPDES permit.
(b) Any person notified of a suspension of the wastewater treatment service and/or the industrial user permit shall immediately stop or eliminate the contribution. In the event of a failure of the person to immediately comply voluntarily with the suspension order, the pretreatment department 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 or the environment. The pretreatment department shall reinstate the industrial user permit and/or the wastewater treatment service upon proof of the elimination of the noncomplying discharge.
(c) Any person so notified of the emergency suspension of any permit pursuant to this section shall be directed to appear and show cause before the Director of Public Works as provided by this chapter why such suspension should not be confirmed or why such other proposed enforcement action should not be ordered.
(7) Termination of permit.
(a) An industrial user which is responsible, in whole or in part for imminent endangerment shall submit to the pretreatment department, a detailed written statement describing the causes of the harmful contribution and the measures taken to prevent any future occurrence, prior to the date of the hearing described in division (B)(3) of this section.
(b) Any user who violates the following conditions of this chapter or applicable state and federal regulations is subject to having their permit revoked in accordance with the procedures of this section.
1. Failure to notify the city of significant wastewater prior to the changed discharge;
2. Failure to provide prior notification to the city of changed condition;
3. Misrepresentation or failure to fully disclose all relevant facts in the wastewater discharge permit application;
4. Falsifying self-monitoring reports;
5. Tampering with monitoring equipment;
6. Refusing to allow the city timely access to the facility premises and records;
7. Failure to meet effluent limitations;
8. Failure to pay fines;
9. Failure to pay sewer charges;
10. Failure to meet compliance schedules;
11. Failure to complete a wastewater survey or the wastewater discharge permit application;
12. Violation of any pretreatment standard or requirement, or any terms of the wastewater discharge permit or the ordinance;
13. Failure to provide an advance notice of the transfer of a permit facility.
(c) Noncompliant industrial users will be notified of the proposed termination of their wastewater permit and be offered an opportunity to show cause before the Director of Public Works why the proposed action should not be taken.
(d) Wastewater discharge permits shall be revocable upon non-use, cessation of operations, or transfer of business ownership. All wastewater discharge permits are void upon the issuance of a new wastewater discharge permit.
(8) Water supply severance. Whenever an industrial user has violated or continues to violate 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 its ability to comply.
(9) Administrative fines.
(a) When the pretreatment coordinator 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 city may fine such user in an amount not to exceed $2,000. Such fines shall be assessed on a per violation, per day basis. In the case of monthly or other long term average discharge limits, fines shall be assessed for each day during the period of violation.
(b) Users desiring to dispute such fines must file a written request for the city to reconsider the fine along with full payment of the fine amount within 15 days of being notified of the fine. The Director of Public Works shall convene a hearing on the matter within 30 days of receiving the request from the user. In the event the user's appeal is successful, the payment shall be returned to the user. The city may add the costs of preparing administrative enforcement actions, such as notices and orders, to the fine.
(c) Issuance of an administrative fine shall not be a bar against, or prerequisite for, taking any other action against the user.
(10) Injunctive relief. Whenever an industrial user has violated or continues to violate the provisions of this chapter or permit or order issued hereunder or any other pretreatment requirement, the pretreatment department, through the city attorney, may petition the court for the issuance of a preliminary or permanent injunction, or both (as may be appropriate) which restrains or compels the activities on the part of the industrial user.
(11) Judicial relief and administrative penalty by the EPA. The Environmental Protection Agency may seek judicial relief and may also use administrative penalty authority when the POTW has sought a monetary penalty which the Environmental Protection Agency believes to be insufficient.
(12) Civil penalties.
(a) Any user who is found to have violated an order of the City Council or who failed to comply with any provision of this chapter, a wastewater discharge permit, or the orders, rules, regulations and permits issued hereunder, shall be fined not more than $2,000 for each offense. Each day on which a violation shall occur or continue shall be deemed a separate and distinct offense.
(b) The city may recover reasonable attorney's fees, court costs, court reporters' fees, other expenses of litigation and other expenses associated with enforcement activities, including sampling and monitoring expenses, and the cost of any actual damages incurred by the city. A lien against the individual user's property will be sought for unpaid charges, fines and penalties.
(13) Criminal penalties. Any user who shall violate any of the provisions of this chapter or suffer or allow the same to be violated, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine not to exceed $2,000 a day for each violation. Each day during which such violation shall continue to exist shall constitute a separate and distinct offense.
(14) Falsifying information. Any person who knowingly makes any false statements, representations, or certifications in any applications, record, report, plan or other document filed or required to be maintained pursuant to this chapter or industrial user permit or who falsifies, tampers with or knowingly renders inaccurate any monitoring device or method required under this chapter shall, upon conviction, be punished by a fine of no less than $500 for each separate violation.
(15) Supplemental enforcement action.
(a) Performance bonds. The pretreatment coordinator may decline to reissue a wastewater discharge permit to any user which has failed to comply with the provisions of this chapter, or any orders, or a previous wastewater discharge permit issued hereunder, unless such user first files a satisfactory bond, payable to the city, in a sum not to exceed a value determined by the pretreatment coordinator to be necessary to achieve consistent compliance.
(b) Liability insurance. The pretreatment coordinator may decline to reissue a wastewater discharge permit to any user which has failed to comply with the provisions of this chapter, any order, or a previous wastewater discharge permit issued hereunder, unless the user first submits proof that it has obtained financial assurances sufficient to restore or repair damage to the POTW caused by its discharge.
(c) Public nuisances. Any violation of this chapter, wastewater discharge permits, or orders issued hereunder, is hereby declared a public nuisance and shall be corrected or abated as directed by the pretreatment department. Any person(s) creating a public nuisance shall be subject to reimbursing the city for any costs incurred in removing, abating or remedying said nuisance.
(C) Affirmative defense to discharge violations.
(1) Act of God. In an action brought in municipal or state court, if a person can establish that an event that would otherwise be a violation of a pretreatment ordinance or a permit issued under this chapter was caused solely by an Act of God, war, strike, riot, or other catastrophe, the event is not a violation of this chapter or permit. An Act of God is defined as an extraordinary interruption by a natural cause (as a flood or earthquake) of the usual course of events that experience, prescience, or care cannot reasonably foresee or prevent.
(2) Prohibited discharge standards. A user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general and specific prohibitions in § 53.153(a) through (g) 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 city 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) For the purposes of this section:
BYPASS. The intentional diversion of wastestreams from any portion of a user's treatment facility.
SEVERE PROPERTY DAMAGE. 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 for essential maintenance to assure efficient operation. These bypasses are not subject to the provision of subsections (c)(3)d. and (3)e. of this section.
(c) Bypass is prohibited, and the city may take an enforcement action against a user for a bypass, unless:
1. Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;
2. 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
3. The user submitted notices as required under division (C)(3)(e) of this section.
(d) The city may approve an anticipated bypass, after considering its adverse effects, if the city determines that it will meet the three conditions listed in division (C)(3)(c) of this section.
(e) Notification.
1. If a user knows in advance of the need for a bypass, it shall submit prior notice to the city, at least ten days before the date of the bypass, if possible.
2. A user shall submit oral notice to the city 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 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 exact dates and times; 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 city may waive the written report on a case-by-case basis if the oral report has been received within 24 hours.
(Ord. 17-1121, passed 11-21-2017)