A.
Notification of violation. Whenever the Water and
Sewer Department (WPC Department) finds that any industrial user has
violated or is violating this chapter or a wastewater permit or order
issued hereunder, the WPC Department or his agent may serve upon said
user written notice of the violation. Within 10 days of the receipt
date 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 to the WPC Department. 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.
B.
Consent orders. The WPC Department 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. Consent orders shall have the same force and effect as administrative orders issued pursuant to Subsection D below.
C.
Show cause hearing. The WPC Department may order any
industrial user which causes or contributes to violation of this chapter
or wastewater permit or order issued hereunder, to 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 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
10 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.
D.
Compliance order. When the WPC Department finds that
an industrial user has violated or continues to violate this chapter
or a permit or order issued thereunder, 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.
E.
Cease and desist orders. When the WPC Department finds
that an industrial user has violated or continues to violate this
chapter or any permit or order issued hereunder, the Water and Sewer
Department may issue an order to cease and desist all such violations
and direct those persons in noncompliance:
F.
Public notification. The City shall publish annually
in the largest local daily paper a list of industrial users which
at any time during the previous 12 months were in significant noncompliance
with applicable pretreatment requirements. For the purpose of this
provision, an industrial user is in significant noncompliance if its
violation(s) meets one or more of the following criteria:
(1)
Chronic violations of wastewater discharge limits,
defined here 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 pollutant parameter.
(2)
Technical review criteria (TRC) violations, 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 equals 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 control authority
determines has caused, alone or in combination with other discharges,
interference or pass-through (including endangering the health of
POTW 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 POTW's exercise of its emergency authority under 40
CFR 403.8(f)(1)(vi)(B) to halt or prevent such a discharge.
(5)
Failure to meet, within 90 days after the schedule
date, a compliance schedule milestone 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, 90-day compliance
reports, periodic self-monitoring reports and reports on compliance
with compliance schedules.
(7)
Failure to accurately report noncompliance.
(8)
Any other violation or group of violations which the
POTW determines will adversely affect the operation or implementation
of the local pretreatment program.
G.
Injunctive relief.
(1)
In general. The Water and Sewer Department may bring
an action for an injunction against any person who violates any provision
of this chapter or any rules, regulation, order or permit adopted
or issued under this chapter.
(2)
Findings. In any action for an injunction under this
subsection, any finding of Water and Sewer Department after hearing
is prima facie evidence of each fact the Water and Sewer Department
determines.
(3)
Grounds. On a showing that any person is violating
or is about to violate this chapter or any rule, regulation, order
or permit adopted or issued by Water and Sewer Department, the court
shall grant an injunction without requiring a showing of a lack of
an adequate remedy at law.
(4)
Emergency. If an emergency arises due to imminent
danger to the public health or welfare or imminent danger to the environment,
the Water and Sewer Department may sue for an immediate injunction
to stop any pollution or other activity that is causing the danger.
H.
Harmful contributions.
(1)
The City may suspend the wastewater treatment service
and/or wastewater discharge permit when such suspension is necessary,
in the opinion of the City, 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 or to the environment,
causes interference to the POTW or causes the City to violate any
condition of its NPDES permit or sludge disposal.
(2)
Any person notified of a suspension of the wastewater
treatment service and/or wastewater discharge permit shall immediately
stop or eliminate the contribution. In the event of a failure of the
person to comply voluntarily with the suspension order, the City shall
immediately sever the sewer connection in order to prevent or minimize
damage to the POTW system or endangerment to any individuals. The
City may reinstate the wastewater treatment service and/or wastewater
discharge permit upon proof of the elimination of the noncomplying
discharge. A detailed written statement submitted by the user describing
the causes of the harmful contribution and the measures taken to prevent
any future occurrence shall be submitted to the City within 15 days
of the date of occurrence.
I.
Any violation of an industrial waste discharge permit constitutes a violation of this chapter of the Code of the City of Hagerstown and will be subject to a fine of $1,000 per day for each day that an industrial waste discharge limitation is violated. This penalty is in addition to any surcharge rates assessed pursuant to § 240-47 of the Code of the City of Hagerstown.
J.
Administrative fines. Notwithstanding any other section
of this chapter, any user who is found to have violated any provision
of this chapter, or permits and orders issued hereunder, shall be
fined in an amount not to exceed $1,000 per violation. Each day on
which noncompliance shall occur or continue shall be deemed a separate
and distinct violation. Such assessments may be added to the user's
next scheduled sewer service charge, and the WPC Department shall
have such other collection remedies as he has to collect other service
charges. Unpaid charges, fines and penalties shall constitute a lien
against the individual user's property. Industrial users desiring
to dispute such fines must file a request for the WPC Department to
reconsider the fine within 10 days of being notified of the fine.
Where the WPC Department believes a request has merit, he shall convene
a hearing on the matter within 15 days of receiving the request from
the industrial user.
A.
Injunctive relief. 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 City may petition the appropriate
court having jurisdiction through the City 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 City. A petition for injunctive
relief need not be filed as a prerequisite to taking any other action
against a user.
B.
Civil penalties.
(1)
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 shall be liable to
the City for a maximum civil penalty of $1,000 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.
(2)
The City 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 City.
(3)
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.
(4)
Filing a suit for civil penalties shall not be a prerequisite
for taking any other action against a user.
C.
Criminal prosecution.
(1)
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 $1,000 per violation per day and/or imprisonment for not
more than six months.
(2)
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 penalty of at least $1,000 per violation per day and/or be subject
to imprisonment for six months. This penalty shall be in addition
to any other cause of action for personal injury or property damage
available under state law.
(3)
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 guilty
of a misdemeanor and be punished by a fine of not more than $1,000
per violation per day and/or imprisonment for not more than six months.
(4)
In the event of a second conviction, a user shall
be punished by a fine of not more than $1,000 per violation per day
and/or imprisonment for not more than six months.
An industrial 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 A and B and of this section.
A.
Notice.
(1)
If an industrial users knows in advance of the need
for a bypass, it shall submit prior notice to the control authority,
if possible at least 10 days before the date of the bypass.
(2)
An industrial user shall submit oral notice of an
unanticipated bypass that exceeds applicable pretreatment standards
to the control authority within 24 hours from the time the industrial
user 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 reoccurrence of the bypass. The control
authority may waive the written report on a case-by-case basis if
the oral report has been received within 24 hours.
B.
Prohibition of bypass.
(1)
Bypass is prohibited and the control authority 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 not feasible alternatives to the
bypass, such as the use of auxiliary treatment facilities, retention
of untreated wastes or maintenance during normal period 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
An "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 caused by operational error, improperly designed treatment
facilities, inadequate treatment facilities, lack of preventative
maintenance or careless or improper operation. An upset can be used
as an affirmative defense to an action brought for noncompliance with
Categorical Pretreatment Standards, provided that the industrial user
meets certain conditions. An industrial user who wishes to establish
the affirmative defense of upset must demonstrate, through properly
signed, contemporaneous operating logs or other relevant evidence,
that:
A.
An upset occurred and the industrial user can identify
the cause or causes.
B.
The facility was at the time 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 City within 24 hours of becoming aware of the upset (if this
information is provided orally, a written submission must follow within
five days): a description of the indirect discharge and cause of noncompliance;
the period of noncompliance, including exact dates and times, or if
not corrected, the anticipated time the noncompliance is expected
to continue; steps being taken 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 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 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.
Information and data about a user obtained from
reports, questionnaires, permit applications, permits and monitoring
programs and from inspections shall be made available to the public
unless the user specifically requests and is able to demonstrate to
the satisfaction of the City that the release of such information
would divulge information, processes or methods of production entitled
to protection as trade secrets of the user. When requested by the
person furnishing the report, the portions of a report which might
disclose trade secrets or secret processes shall not be made available
to the general public for inspection except upon written request.
Confidential portions of a report shall be made available for use
by the state or EPA in judicial review or enforcement proceedings
involving the person or company furnishing the report. Wastewater
constituents and characteristics shall not be recognized as confidential.
