(A) Industrial user violation process. If the city determines that a violation has occurred or is taking place, a representative of the city shall make a reasonable effort to notify the user of the violation. All violations including the first violation shall receive a written notice of violation, and may also incur a monetary penalty.
(1) All written notices of violations shall describe the violation and any potential penalty (monetary or additional pretreatment). The written notice may further require that response to the violation be submitted to the city within a ten day time period.
(2) If a written notice of violation requires submittal of a response, the response shall include an explanation of the violation, a plan for the satisfactory correction and prevention of future violations, and specific corrective or preventive action submission of this plan in no way relieves the user of liability for any violation occurring before or after receipt of the notice of violation. Nothing in this section shall limit the authority of the city to take emergency action without first issuing a notice of violation.
(B) Violation.
(1) A violation of limitations established under §51.092 of this sub-chapter, any applicable federal, state or city pretreatment standards, or specific requirements of a discharge permit shall constitute a violation of this sub-chapter and shall be cause for enforcement action by the city, including but not limited to levying of administrative penalties described in this section, regardless of the intent of the user. Each day of a continuing violation shall constitute a separate offense for purposes of computing the applicable penalty.
(2) Whenever the city finds that any IU has violated or is violating this sub-chapter, wastewater permit or order issued hereunder, or any other pretreatment requirement, the city shall cause to be served upon the IU a written notice of violation. The notice of violation shall be delivered to the user's premises or be sent by regular mail to the address of the permit holder on record with the city. It may be sent together with the industrial user's monthly billing notice.
(C) Permit parameters.
(1) For the maximum daily allowable concentration, if the concentration of any single sample (whether grab or a sample within a series) exceeds the limitations, a violation will have occurred;
(2) For the monthly average allowable concentration, if the average of all sample(s) (grab or composite) taken exceeds the limitation, a violation will have occurred. One sample collected may constitute a monthly average violation.
(D) Additional violation parameters. Included, but are not limited to the following:
(1) For noncompliance with any special reporting requirements established by permit, written request of the city, or as specified by general federal pretreatment standards (40 CFR 403.12);
(2) Pollutants prohibited in §51.092 are discharged into the system;
(3) Failure to apply for and obtain a permit prior to discharge of industrial wastewater in the system.
(E) IU notifying city of violation. If sampling performed by an industrial user indicating a violation, the industrial user shall notify the city within 24 hours of becoming aware of the violation. The user shall also re-sample and report the results within 30 days of becoming away of violation pursuant to 40 CFR 403.12(g)(2). Re-sampling must continue until it is evident the discharge is within compliance.
(F) Affirmative defense. The city does not recognize the “affirmative action” defense defined in the federal regulations.
(G) Consent orders. The city may enter into consent orders, assurance of volunteer compliance, or other similar documents establishing an agreement with the IU responsible for the noncompliance. Orders will include specific action to be taken by the IU to correct the noncompliance within a time period also specified by the order. Consent orders shall have the same force and effect as administrative orders and upon issuance, orders shall be judicial enforceable.
(H) Show cause hearing.
(1) The city may order any IU which causes or contributes violation(s) of this sub-chapter, wastewater permits or orders issued hereunder or any other, pretreatment requirement, to appear before the city and show cause why a proposed enforcement action should not be taken. Notice shall be served on the IU specifying the time and place for the hearing, the proposed enforcement action, the reasons for the action, and an order that the IU show cause why this proposed enforcement action should not be taken.
(2) The notice of the hearing shall be served personally or by registered mail (return receiving requested) at least ten days prior to the hearing. The notice may be served on any authorized representative of the IU. Whether or not the IU appears as notified, immediate enforcement action may be pursued following the hearing date.
(I) Compliance orders.
(1) When the city finds that an IU has violated or continues to violate the sub-chapter, permits or orders issued hereunder, or any other pretreatment requirement, an order may be issued to the IU responsible for the discharge directing that, following a specific time period, sewer service shall be discontinued unless adequate treatment facilities, device or other related appurtenances are installed and properly operated. Compliance orders may also contain other requirements as might be reasonably necessary and appropriate to address the noncompliance, including additional self-monitoring, and management practices designed to minimize the amount of pollutants discharged to the sewer.
(2) In addition to compliance orders, the city may require additional self-monitoring for at least 90 days after consistent compliance has been achieved, after which time the self-monitoring conditions in the discharge permit shall control.
(J) Significant noncompliance. Significant noncompliance is deemed to have occurred if a violation meets one or more of the following criteria:
(1) Chronic violations of wastewater discharge limits, defined as those in which 66% or more of all of the measurements taken during a six-month period exceed (by any magnitude) the daily maximum limit or the average limit for the same polluted parameter;
(2) Technical review criteria (TRC) violations are defined here as those in which 33% or more of all of the measurements for each pollutant parameter taken during a six-month period equal or exceed the product of the daily maximum limit or the average limit multiplied by the applicable TRC. (TRC = 1.4 for BOD, TSS, fats, oil and grease, and 1.2 for all other pollutants except pH);
(3) Any other violation of a pretreatment effluent limit (daily maximum or longer-term average) that the city determines has caused alone or in combination with other discharges, interference or pass through (including endangering the health of city personnel or the general public);
(4) Any discharge of a pollutant that has caused imminent endangerment to human health welfare or to the environment or has resulted in the city's exercise of its emergency authority, as defined in 40 CFR 403.8 (f)(1)(vi)(B), to halt or prevent a discharge;
(5) Failure to meet, within 90 days after the scheduled date, a compliance schedule contained in a local control mechanism or enforcement order, for starting construction, completing construction or attaining final compliance;
(6) Failure to provide, within 30 days after the due date, required reports such as baseline monitoring reports (BMR), 90-day compliance reports, periodic self-monitoring reports and reports on compliance with compliance schedules;
(7) Failure to accurately report noncompliance; and
(8) Any other violation or group of violations which the city determines will adversely affect the operation and implementation of the local pretreatment program.
(K) Publication of significant violators. A list of all industrial users which were in significant noncompliance (as defined above) during the 12 previous months, shall be annually published by the city in the largest daily newspaper, published in the municipality in which the city is located, summarizing the enforcement actions taken against users during the previous 12 months.
(L) Other penalties.
(1) If the violation is not corrected within a reasonable period of time determined by the city, or as specified in a consent order or compliance order, or if there appears to be indications of repetition of the violation, a notice of civil penalties may be issued as described in the applicable city ordinance. The city may seek or assess a specific fine violation not to exceed $1,000 per day per violation of pretreatment standards and may impose an applicable compliance schedule. Compliance schedules may not extend the compliance date beyond any applicable federal deadlines.
(2) Notwithstanding any other provision of this sub-chapter, the city may, in its discretion and at any time, impose discharge permit limitations penalties/charges or seek civil and criminal penalties pursuant to applicable city ordinance.
(M) Cease and desist orders. When the city finds that an industrial user has violated or continued to violate this sub-chapter, any permit or order issued hereunder, or any other pretreatment requirement, the city may issue an order to the industrial user directing it to cease and desist all violations and directing the user to:
(1) Immediately comply with all requirements; or
(2) Take appropriate remedial or preventative action as may be needed to properly address a continuing or threatened violation, including halting operations and/or terminating the discharge.
(N) Administrative appeals of enforcement actions.
(1) An industrial user desiring to dispute any fine, penalty or other administrative enforcement action under this sub-chapter must, within ten days of receipt of notice of any action, file a written request for review with the City Council and the city administration.
(2) The request for review shall state any facts and mitigating circumstances which the IU wishes to be considered. Upon receipt of a request for review, the Council and city administration shall review the requests and any other information available. They shall render a written decision within 15 working days of receipt. The Council or city administration may sustain, reduce or eliminate any fine, and may modify any enforcement action upon a finding that:
(a) The original action of the city in imposing a fine or other enforcement action was based upon a substantial error of fact, which shall be stated;
(b) The original action of the city was based upon improper application of city ordinance or regulations to the facts, in which case the correct application shall be stated; or
(c) The user has presented mitigating facts or circumstances to the city which would justify modification of the original order.
(3) If the Council or city administration finds that the facts and application of this sub-chapter were correct, and mitigating circumstances do not justify modifying the original action, that shall sustain that action.
(O) Emergency suspensions. The city may suspend the wastewater permit of an industrial user, whenever suspension is necessary in order to stop an actual or threatened discharge which reasonably appears to present or cause an imminent or substantial endangerment to the health or welfare of persons, interferes with the operation of the municipal wastewater system or which present or may present an endangerment to the environment.
(1) Any industrial user notified of a suspension of its wastewater permit shall immediately stop or eliminate its discharge. In the event of an industrial user's failure to immediately comply voluntarily with the suspension order, the city may take steps as it deems necessary, including immediate severance of the sewer connection, to prevent minimize damage to the system, its receiving stream, or to any person. The city shall allow the industrial user to recommence its discharge when the user has demonstrated the satisfaction of the city that the period of endangerment has passed, and no repetition is likely, unless termination proceedings set forth in §51.096 are initiated against the user.
(2) An industrial user which causes or permits any discharge presenting immediate endangerment to the public or the environment shall submit a detailed written statement describing the causes of the harmful contribution and the measures taken to prevent any future occurrence to the city prior to the date of any show cause or termination hearing discussed elsewhere in this sub-chapter.
(P) Termination of permit.
(1) In addition to all other penalties and remedies in the sub-chapter, the city may terminate the permit of any industrial user. Violations of the conditions of this sub-chapter, wastewater permits or orders issued hereunder is subject to permit termination. Justification for permit termination include, but are not limited to the following:
(a) Violation of permit conditions;
(b) Failure to accurately report the wastewater constituents and characteristics of its discharge;
(c) Failure to report significant changes in operations or wastewater volume, constituents and characteristics prior to discharge; and
(d) Refusal of reasonable access to the user's premises for the purpose of inspection, monitoring or sampling.
(2) Prior to terminating a permit, the city shall notify the permittee of its proposed termination. A show cause opportunity under other sections identified in this sub-chapter will be offered.
(Q) Judicial enforcement remedies.
(1) Whenever an industrial user has violated or continues to violate the provisions of this sub-chapter, permits or orders issued hereunder, or any other pretreatment requirements, the city, may petition the courts for the issuance of temporary or permanent injunction, as may be appropriate, which restrains or compels the specific performance of the wastewater permit, order or other requirement imposed by this sub-chapter on activities of the industrial user.
(2) Other action as may be appropriate for legal and/or equitable relief may also be sought by the city. The court shall grant an injunction without requiring a showing of a lack of an adequate remedy at law.
(Ord. 1941, passed 11-24-97) Penalty, see §51.999