§ 13-707. Enforcement procedures.

(1)

Hearing authority.

(a)

Composition.

(i)

Voting membership. The hearing authority either shall be the utilities committee of the city council or shall consist of three (3) persons appointed by the city council with terms to be set by the city council.

(ii)

Ex officio membership. The following representatives shall constitute the ex officio (nonvoting) membership of the hearing authority and shall serve a continuous term.

a.

The mayor of the city.

b.

The city engineer, who shall serve as secretary of the hearing authority.

c.

The wastewater division manager.

(b)

Conflict of interest. In the event of a conflict of interest involving any voting member of the hearing authority, the mayor of the city shall temporarily replace the voting member and assume his voting status until the conflict is adjudicated.

(2)

Notification of violation. Whenever the city finds that any person has violated or is in violation of a section of this chapter or any prohibition, limitation, or requirement contained herein, he may serve upon the person a written notice stating the nature of the violation and providing a reasonable time, not to exceed thirty (30) days, for the satisfactory correction thereof.

(3)

Show-cause hearing.

(a)

The city may order any industrial user which causes or contributes to violation of this section 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 ten (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.

(b)

The hearing authority shall conduct the hearing and take the evidence; issue notices of hearings requesting the attendance and testimony of witnesses and requesting the production of evidence relevant to any matter involved in any such hearings; and prepare a report of the evidence and hearing, including transcripts and other evidence, together with recommendations for action thereon.

(c)

At any public hearing, testimony taken before the hearing authority or any person designated by it must be under oath and recorded. The transcript so recorded shall be made available to any member of the public or any party to the hearing upon payment of the usual charges therefore.

(d)

After the hearing authority has reviewed the evidence, it may issue an order to the party responsible for the discharge dictating that, following a specified time period, adequate corrective action be taken.

(e)

The hearing authority can hear appeals on previously denied discharge permits and rule on these cases.

(f)

The hearing authority can hear appeals on enforcement actions issued under the city's sewer use ordinance and rule on these cases.

(4)

Enforcement actions.

(a)

Consent orders. The city 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 section 13-707.

(b)

Compliance order. When the city finds that an industrial user has violated or continues to violate the ordinance or a permit or order issued there under, the city 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.

(c)

Administrative orders. When the city finds that a user has violated or continues to violate the provisions set forth in this program, or the order issued thereunder, the city may issue an order for compliance to the user responsible for the discharge. Orders may contain any requirements as might be reasonable, necessary, and appropriate to address the noncompliance, including but not be limited to the installation of pretreatment technology, additional self-monitoring, and management practices.

(d)

Cease and desist orders. When the city finds that an industrial user has violated or continues to violate this section 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:

(i)

Comply forthwith.

(ii)

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.

(e)

Administrative penalties. 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 penalized in an amount not to exceed ten thousand dollars ($10,000.00) per violation. Each day on which noncompliance shall occur or continue may be deemed a separate and distinct violation. Such assessments may be added to the user's next scheduled sewer service charge and the city shall have such other collection remedies as he has to collect other service charges. Unpaid charges and penalties shall constitute a lien against the individual user's property. Industrial users desiring to dispute such penalties must file a request for the city to reconsider the penalty within ten (10) days of being notified of the penalty. Where the city believes a request has merit, a hearing shall be convened on the matter with fifteen (15) days of receiving the request from the industrial user.

(f)

Injunctive relief. Whenever an industrial user has violated or continues to violate the provisions of this chapter or permit or order issued hereunder, the city, through counsel 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. The city shall have such remedies to collect these fees as it has to collect other sewer service charges.

(g)

Civil penalties.

(i)

Any industrial user who has violated or continues to violate this chapter or any order or permit issued hereunder, shall be liable to the city for a civil penalty of not more than ten thousand dollars ($10,000.00) plus actual damages incurred by the publicly owned treatment works (POTW) per day for as long as the violation continues. In addition to the above described penalty and damages, the city may recover reasonable attorney's fees, court costs, and other expenses associated with the enforcement activities, including sampling and monitoring expenses.

(ii)

The city shall petition the court to impose, assess, and recover such sums. In determining amount of 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 industrial user's violation, corrective actions by the industrial user, the compliance history of the user, and any other factor as justice requires.

(h)

Criminal prosecution.

(i)

Any industrial user who willfully or negligently violates any provision of this chapter or permits issued hereunder shall, upon conviction, be guilty of a misdemeanor, punishable by a penalty not to exceed one thousand dollars ($1,000.00) per violation per day or imprisonment for not more than one year or both.

(ii)

In the event of a second conviction, the user shall be punishable by a penalty not to exceed ten thousand dollars ($10,000.00) per violation per day or imprisonment for not more than three (3) years or both.

(iii)

Any industrial user who knowingly makes any false statements, representations, or certifications in any application, record, report, plan, or other document filed or required to be maintained pursuant to this chapter, or wastewater 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 penalty of not more than one thousand dollars ($1,000.00) per violation per day or imprisonment for not more than one year or both.

(iv)

In the event of a second conviction, the user shall be punishable by a penalty not to exceed ten thousand dollars ($10,000.00) per violation per day or imprisonment for not more than three (3) years or both.

(v)

Any discharge in violation of the substantive provisions of this chapter or an order of the hearing authority shall be considered a public nuisance. If any person discharges sewage, industrial waste, extraneous flow, or other wastes into the city's wastewater system contrary to the substantive provisions of this chapter or any order of the hearing authority, the city attorney may commence action for appropriate legal and/or equitable relief in the chancery or circuit courts of Montgomery County, Tennessee. Such action may be in lieu of or in addition to proceedings before the hearing authority.

(k)

The POTW shall have authority and procedures (after informal notice to the discharger) immediately and effectively to halt or prevent any discharge of pollutants to the POTW which appears to present an imminent endangerment to the health or welfare of persons.

( Ord. No. 41-2016-17 , § 1, 1-5-17)