§ 98-56. Enforcement.
(a)
Non-emergency termination.
(1)
A user who violates the following conditions is subject to the termination of its city-provided water supply and/or its discharge:
a.
Violation of wastewater discharge 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;
d.
Refusal of reasonable access to the user's premises for the purpose of inspection, monitoring, or sampling;
e.
Violation of the pretreatment standards of this division;
f.
Pay sewer charges;
g.
Meet compliance schedules;
h.
Fulfill the conditions of its permit, or this division, or to obey any final judicial order with respect thereto;
i.
Failure to meet effluent limitations; including best management practices, based on applicable pretreatment standards; or
j.
User who 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 division, individual wastewater discharge permit.
(b)
Notice of violation.
(1)
Whenever the authority finds that any discharger has engaged in conduct which justifies non-emergency termination of water supply, pursuant to subsection (b) of this section, the authority shall serve or cause to be served upon such discharger a written notice, either by personal delivery or by certified or registered mail, return receipt requested, stating the nature of the alleged violation. The user may petition for a reconsideration and hearing.
(2)
Within 30 days of the date of receipt of the notice, the discharger shall respond in writing to the authority, advising of its position with respect to the allegations, including an explanation of the violation and a plan for the satisfactory correction and prevention of a reoccurrence of the violation. Such plan shall include specific actions to be taken by the violator. Thereafter, the parties shall meet to ascertain the veracity of the allegations and where necessary, establish a plan for the satisfactory correction thereof.
(3)
The user shall not recommence its discharge, nor shall it be re-issued a permit, until the director so authorizes, and:
a.
The user presents proof satisfactory to the director that the noncomplying discharge has ceased;
b.
The user presents proof satisfactory to the director that the conditions creating the threat of imminent and substantial danger have been eliminated;
c.
The user pays the city for all costs the city will incur in reinstating services.
(4)
Exercise of the authority by the director under this subsection shall not be a bar to, nor a prerequisite for, taking any other action against the user.
(c)
Administrative orders. Where the violation of subsection (a) of this section is not corrected by means of enforcement action listed in subsection (b) of this section, the following enforcement escalations may be used. Terms may or may not be negotiated with industrial users.
(1)
Consent order. An agreement between the authority and the industrial user normally containing three elements:
a.
Compliance schedules;
b.
Stipulated fines or remedial actions; and
c.
Signatures of the authority and authorized representatives.
(2)
Show cause order. An order which directs the user to appear before the city to explain its noncompliance and show cause why more severe enforcement actions against the user should not be levied. Typically used after informal contacts or NOV's have failed to resolve noncompliance; however, it can be used at any time.
(3)
Compliance order. An order which directs the industrial user to achieve or restore compliance by a date specified in the order. Terms need not be discussed with the industry in advance. Typically used when noncompliance cannot be resolved without construction, repair, or process changes, or to require development of management practices, spill prevention programs, and other pretreatment program requirements.
(d)
Right of appeal of administrative ruling. Any discharger or any interested party shall have the right to request in writing an interpretation or ruling by the authority on any matter covered by this division and shall be entitled to a prompt written reply. In the event that such inquiry is by a discharger and deals with matters of performance or compliance with this division or deals with a permit issued pursuant hereto for which enforcement activity relating to an alleged violation is the subject, receipt of a discharger's request shall stay all enforcement proceedings pending receipt of the aforesaid written reply; provided, however, the authority may take any action it deems necessary to protect its wastewater collection and treatment system or to comply with its TPDES permit or to comply with any contract the authority has for the treatment of wastewater.
(e)
Judicial proceedings. The authority, with respect to the conduct of any discharger contrary to the provisions of this division may authorize its attorney to commence any legal action in a court of competent jurisdiction for equitable and/or legal relief.
(1)
Injunctive relief. When the authority finds that a user has violated, or continues to violate, any provision of this division, a wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or requirement, the authority may petition, pursuant to V.T.C.A., Local Government Code ch. 54, a district court or other court of proper jurisdiction of the county through its 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 division on activities of the user. The authority may also seek such other action as is appropriate for legal and/or equitable relief, including a requirement for the user to conduct environmental remediation. A petition for injunction relief shall not be a bar against, or a prerequisite for, taking any other action against a user.
(2)
Civil penalties. The authority may also seek to recover civil penalties of up to $5,000.00 per day pursuant to V.T.C.A., Local Government Code § 54.018.
(3)
Criminal proceedings. Notwithstanding any notice provisions contained in this division, any person who violates, disobeys, omits, neglects, or refuses to comply with or who resists the enforcement of any of the provisions of this division commits an offense. The person shall be fined not more than $2,000.00 for each offense.
(f)
Emergency suspension of service and discharge permits.
(1)
The authority, may, for good cause shown, suspend water or wastewater service to the discharger's facility when it appears to the authority that an actual or threatened discharge presents or may present an imminent or substantial danger to the health or welfare of persons, substantial danger to the environment, interfere with the operation of a POTW, violate any pretreatment limits imposed by this division or any permit issued pursuant to this division. Any discharger notified of the suspension of the authority's water or wastewater service and/or the discharger's permit, shall within a reasonable period of time, as determined by the authority, cease all discharges. In the event of the failure of the discharger to comply voluntarily with the suspension order within the specified time, the authority may commence judicial proceedings to compel the discharger's compliance with such order or may immediately disconnect such discharger's service line from the city water and sanitary sewer system. In the case of emergency disconnection of service, the director shall make a reasonable attempt to notify the owner or discharger before disconnecting the service line. The party whose service has been disconnected shall have an opportunity for a hearing on the issue of the illegal discharge and the disconnection as soon as possible after such disconnection has taken place.
(2)
The authority may reinstate the permit and/or the wastewater or water service upon proof by the discharger of the cessation of the noncomplying discharge or elimination of conditions creating the threat of imminent or substantial danger as set forth above. The water and/or wastewater service shall be reconnected at the discharger's expense.
(g)
Affirmative defenses.
(1)
Affirmative defenses to discharge violations for action in municipal or state court. In an action brought in municipal or state court, if a person can establish that an event that would otherwise be a violation of this division or a permit issued under this division was caused solely by an act of God, war, strike, riot, or other catastrophe, the event is not a violation of this division or the permit. In an enforcement proceeding, the user seeking to establish the occurrence of an act of God, war, strike, riot, or other catastrophe shall have the burden of proof. In the event that an act of God, war, strike, riot, or other catastrophe has been established the user shall control production of all discharges to the extent possible until such time as the reduction, loss, or failure of its treatment facility is restored or an alternative method of treatment is provided.
(2)
Affirmative defenses to upset. In an action brought in federal court, it is an affirmative defense to an enforcement action brought for noncompliance with categorical pretreatment standards that the noncompliance was caused by upset, if the user demonstrates, through properly signed, contemporaneous operating logs, or other relevant evidence that: An upset occurred and the user can identify the cause(s) of the upset; the facility was at the time being operated in a prudent and workman-like manner and in compliance with applicable operation and maintenance procedures; and any discharger who experiences an upset in operations which places the discharger in a temporary state of noncompliance with this division shall inform the authority within 24 hours of first awareness of the commencement of the upset. Where such information is given orally, the authority may at its discretion require the discharger to file a written report within five working days. The report shall specify:
a.
Description of the upset, its cause and the upset's impact on a discharger's compliance status.
b.
Duration of noncompliance, including exact dates and times of noncompliance, and if the noncompliance continues, the time by which compliance is reasonably expected to occur.
c.
All steps taken or to be taken to reduce, eliminate and prevent recurrence of such an upset or other conditions of noncompliance.
(3)
Affirmative defenses to specific prohibited discharge standards. It is an affirmative defense in federal court to an enforcement action brought against a user for noncompliance with the general prohibitions of subsection 98-53(b) or a specific prohibition of subsection 98-53(d) that the user 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 TPDES permit, and in the case of interference, was in compliance with applicable sludge use or disposal requirements.
(h)
Recovery of costs incurred by the authority. Any discharger who discharges or causes a discharge producing a deposit or obstruction, or causes damage to or impairs the authority's wastewater system, shall be liable to the authority for any expense, loss, or damage caused by such violation or discharge. The authority shall bill the discharger for the costs incurred by the authority for any cleaning, repair, or replacement work caused by the violation or discharge. Failure to pay such bill may result in the termination of water or wastewater service.
(i)
Falsifying information. Any person who knowingly makes any false statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained pursuant to this division, or falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required under this division, shall, upon conviction, be punished as provided in subsection (e)(3) of this section.
(j)
POTW pretreatment requirements. All POTW's shall be able to seek injunctive relief for noncompliance by industrial users with pretreatment standards and requirements. All POTW's shall also have authority to seek or assess civil or criminal penalties in at least the amount of $1,000.00 a day for each violation by industrial users of pretreatment standards and requirements. POTWs whose approved pretreatment programs require modification to conform to the requirements of this subsection shall submit a request for approval of a program modification in accordance with 40 CFR Section 403.18, unless the state would be required to enact or amend a statutory provision, in which case the POTW shall submit such a request.
(Ord. No. 2012-01, § 1, 1-17-12)