Whenever the Executive Director finds that any user has violated or
is violating this chapter, a wastewater discharge permit or order issued hereunder
or any other pretreatment requirement, the Executive Director or its agent
may serve upon the violating user a written notice of violation. Within 10
days of the user's receipt of this notice, an explanation of the violation
and a plan for the satisfactory correction and prevention thereof, to include
specific required actions, shall be submitted by the user to the Executive
Director. Submission of this plan in no way relieves the user of liability
for any violations occurring before or after receipt of the notice of violation.
Nothing in this section shall limit the authority of the PSA to take any action,
including emergency actions or any other enforcement action, without first
issuing a notice of violation.
The Executive Director is hereby empowered to enter into consent orders, assurances of voluntary compliance or other similar documents establishing an agreement with any user responsible for noncompliance. Such order will include specific action to be taken by the user to correct the noncompliance within a time period also specified by the order. Consent orders shall have the same force and effect as the administrative orders issued pursuant to §§ 73-73 and 73-74 below and shall be judicially enforceable.
The Executive Director may order any user which causes or contributes
to violation(s) of this chapter, wastewater discharge permits or orders issued
hereunder or any other pretreatment standard or requirement to appear before
the Executive Director and show cause 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, the reasons for such action
and demand 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 10 days prior to the
hearing. Such notice may be served on any authorized representative of the
user. Whether or not the user appears as ordered, immediate enforcement action
may be pursued following the hearing date. A show cause hearing shall not
be a prerequisite for taking any other action against the user.
When the Executive Director finds that a user has violated or continues
to violate this chapter, wastewater discharge permits or orders issued hereunder
or any other pretreatment standard or requirement, it may issue an order to
the user responsible for the discharge, directing that the user come into
compliance within 10 days. If the user does not come into compliance within
10 days, sewer service shall be discontinued unless adequate treatment facilities,
devices or other related appurtenances are installed and properly operated.
Compliance orders may also contain other requirements to address the compliance,
including additional self-monitoring and management practices designed to
minimize the amount of pollutants discharged to the sewer. 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 any violation, including any continuing violation. Issuance of a compliance
order shall not be a prerequisite to taking any other action against the user.
A.
When the Executive Director finds that a user is violating
this chapter, the user's wastewater discharge permit, any order issued
hereunder or any other pretreatment standard or requirement or that the user's
past violations are likely to recur, the Executive Director may issue an order
to the user directing it to cease and desist all such violations and directing
the user to:
B.
Issuance of a cease and desist order shall not be a prerequisite
to taking any other action against the user.
A.
Notwithstanding any other section of this chapter, any
user that is found to have violated any provision of this chapter, its wastewater
discharge permit and orders issued hereunder or any other pretreatment standard
or requirement may be fined in an amount not to exceed $2,500. 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.
Assessments may be added to the user's next schedule
sewer service charge, and the Executive Director shall have such other collection
remedies as may be available for other service charges and fees.
C.
Unpaid charges, fines and penalties shall, after 10 calendar
days, be assessed an additional penalty of $10, and interest shall accrue
thereafter at a rate of 10% per annum. A lien against the individual user's
property will be obtained for unpaid charges, fines and penalties.
D.
Users desiring to dispute such fines must file a written
request for the Executive Director to reconsider the fine, along with full
payment of the fine amount, within 30 days of being notified of the fine.
The Executive Director shall convene a hearing on the matter within 30 days
of receiving the request from the industrial user. In the event that the user's
appeal is successful, the payment, together with any interest accruing thereto,
shall be returned to the industrial user. The PSA may add the costs of preparing
administrative enforcement actions, such as notices and order, to the fine.
E.
Issuance of an administrative fine shall not be a prerequisite
for taking any other action against the user.
A.
The Executive Director may immediately suspend a user's
discharge (after informal notice to the user) whenever such 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. The PSA may also immediately suspend a user's
discharge (after notice and opportunity to respond) that threatens to interfere
with the operation of the POTW or which presents or may present an endangerment
to the environment.
(1)
Any user notified of a suspension of its discharge shall immediately stop or eliminate its contribution. In the event of a user's failure to immediately comply voluntarily with the suspension order, the Executive Director shall take such steps as deemed necessary, including immediate severance of the sewer connection, to prevent or minimize damage to the POTW or its receiving stream or endangerment to any individuals. The Executive Director shall allow the user to recommence its discharge when the user has demonstrated to the satisfaction of the PSA that the period of endangerment has passed, unless the termination proceedings set forth in § 73-77 are initiated against the user.
(2)
A user that is responsible, in whole or in part, for any discharge presenting imminent endangerment shall submit a detailed written statement describing the causes of the harmful contribution and the measures taken to prevent any future occurrence to the Executive Director prior to the date of any show cause or termination hearing under §§ 73-72 and 73-77.
B.
Nothing in this section shall be interpreted as requiring
a hearing prior to any emergency suspension under this section.
A.
In addition to those provisions in § 73-46 of this chapter, any user that violates the following conditions of this chapter, wastewater discharge permits or orders issued hereunder is subject to discharge termination:
(1)
Violation of wastewater discharge permit conditions.
(2)
Failure to accurately report the wastewater constituents
and characteristics of its discharge.
(3)
Failure to report significant changes in operations or
wastewater volume, constituents and characteristics prior to discharge.
(4)
Refusal of reasonable access to the user's premises
for the purpose of inspection, monitoring or sampling.
Whenever a user has violated a pretreatment standard or requirement
or continues to violate the provisions of this chapter, wastewater discharge
permits or orders issued hereunder or any other pretreatment requirement,
the PSA may petition the Circuit Court of Buchanan County, Virginia, through
the PSA's attorney, for the issuance of 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 industrial user. Such other action as appropriate for
legal and/or equitable relief may also be sought by the PSA. A petition for
injunctive relief need not be filed as a prerequisite to taking any other
action against a user.
A.
Any user which has violated or continues to violate this
chapter, any order or wastewater discharge permit hereunder or any other pretreatment
standard or requirement may be liable to the PSA for a maximum civil penalty
of $2,500 per violation per day. In the case of a monthly or other long-term
average discharge limit, penalties shall accrue for each day during the period
of the violation.
B.
The PSA may recover reasonable attorney's fees,
court costs and other expenses associated with enforcement activities, including
sampling and monitoring expenses, and the cost of any actual damages incurred
by the PSA.
C.
In determining the amount of civil liability, the court
shall take into account all relevant circumstances, including but not limited
to the extent of harm caused by the violation, the magnitude and duration,
any economic benefit gained through the user's violation, corrective
actions by the user, the compliance history of the user and any other factor
as justice requires.
D.
Filing a suit for civil penalties shall not be a prerequisite
for taking any other action against a user.
A.
Any user that willfully or negligently violates any provision
of this chapter, any orders or wastewater discharge permits issued hereunder
or any other pretreatment requirement shall, upon conviction, be guilty of
a misdemeanor punishable by a fine of not more than $2,500 per violation per
day or imprisonment for not more than 12 months, or both.
B.
Any user that willfully or negligently introduces any
substance into the POTW which causes personal injury or property damage shall,
upon conviction, be guilty of a misdemeanor and be subject to a fine of $2,500
and/or be subject to imprisonment for 12 months. This penalty shall be in
addition to any other cause of action for personal injury or property damage
available under state or federal law.
C.
Any user that knowingly makes any false statements, representations
or certifications in any application, record, report, plan or other documentation
filed or required to be maintained pursuant to this chapter, wastewater discharge
permit or order 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 not more than $2,500 per violation per day or imprisonment
for not more than 12 months, or both.
The provisions in this article are not exclusive remedies. The PSA may
take any, all or any combination of these actions against a noncompliant user.
Enforcement of pretreatment violations will generally be in accordance with
the PSA's enforcement response plan. However, the PSA may take other
action against any user when the circumstances warrant. Further, the PSA is
empowered to take more than one enforcement action against any noncompliant
user. These actions may be taken concurrently.
The Executive Director may decline to reissue a wastewater discharge
permit to any user which has failed to comply with the provisions of this
chapter, any orders or a previous wastewater discharge permit issued hereunder,
unless such user first files a satisfactory bond, payable to the PSA, in a
sum not to exceed a value determined by the Executive Director to be necessary
to achieve consistent compliance.
The Executive Director 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.
Whenever a user has violated or continues to violate the provisions
of this chapter, orders or wastewater discharge permits issued hereunder,
water service to the user may be severed. Service will only recommence, at
the user's expense, after it has satisfactorily demonstrated its ability
to comply.
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 industrial user. An upset does not include noncompliance to
the extent cause by operational error, improperly designed treatment facilities,
inadequate treatment facilities, 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 Subsection C are met.
C.
An industrial 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 industrial user can identify
the cause(s) of the upset.
(2)
The facility was, at the time, being operated in a prudent
and workmanlike manner and in compliance with applicable operation and maintenance
procedures.
(3)
The industrial user has submitted the following information
to the POTW and treatment plant operator within 24 hours of becoming aware
of the upset (if this information is provided orally, a written submission
must be provided within five days):
(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 industrial user seeking
to establish the occurrence of an upset shall have the burden of proof.
E.
Industrial users will have the opportunity for a judicial
determination on any claim of upset only in an enforcement action brought
for noncompliance with categorical pretreatment standards.
F.
The industrial user shall control production or 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.
An industrial user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general and specific prohibitions in § 73-6 et seq. 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 local limit exists for each pollutant discharged and the industrial user was in compliance with each limit directly prior to and during the pass-through or interference or no local limit exists, but the discharge did not change substantially in nature or constituents from the user's prior discharge when the user was regularly in compliance with its VPDES permit and, in the case of interference, was in compliance with applicable sludge use or disposal requirements.
A.
BYPASS
SEVERE PROPERTY DAMAGE
Definitions.
The intentional diversion of waste streams from any portion of an
industrial user's treatment facility.
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 productions.
C.
Notice.
(1)
If an industrial user knows in advance of the need for
a bypass, it shall submit prior notice to the POTW at least 10 days before
the date of the bypass if possible.
(2)
An industrial user shall submit oral notice of an unanticipated
bypass that exceeds applicable pretreatment standards to the POTW 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 industrial 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; 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 recurrence of the bypass. The POTW may waive the written report
on a case-by-case basis if the oral report has been received within 24 hours.
D.
Exceptions.
(1)
Bypass is prohibited and the POTW may take enforcement
action against an industrial user for a bypass unless:
(a)
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 wastes
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 preventive maintenance;
and
