Section 102. - Administrative remedies.

The director may utilize any or all of the following actions, singly or in combination for violations of this resolution and permits issued under authority of this resolution. Unless specifically provided herein, none of these remedies is a requisite to the director utilizing any other remedy. In addition, the use of these remedies does not limit the commission's right to use any other remedy provided for under state or federal law, or under common law. Enforcement of pretreatment violations will generally be in accordance with the commission's enforcement management plan. Hearing procedures applicable to some of these actions are found in article VI.

A.

Notice of violation/correction plan. Whenever the director finds that any user has violated or is violating this resolution, industrial or commercial user permit, or any prohibition, limitation or requirements contained therein or any other pretreatment requirement, the director may, but is not required to, serve upon the user a written notice stating the nature of the violation. Within ten (10) days from the date of this notice, an explanation for the violation and a plan for the satisfactory correction thereof shall be submitted to the director by the user. Submission of this plan does not relieve the user of liability for any violations occurring before or after receipt of the notice of violation.

B.

Consent orders. The director may enter into consent orders, assurances of voluntary compliance, or other similar documents establishing an agreement with the user responsible for the noncompliance. Such orders will include specific action to be taken by the user to correct the noncompliance within a time period specified by the order. Consent orders shall have the same force and effect as an administrative order, issued pursuant to Section 102 D. below.

C.

Show cause hearing. The director may hold a show cause hearing prior to revocation of a permit or termination of discharge under section F. below and may hold such a hearing prior to taking any other enforcement action. Notice of a show cause hearing shall be served on the user specifying the time and place for the hearing, the proposed enforcement action, 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 hearing shall be served personally or by registered or certified mail (return receipt requested) at least ten (10) days before the hearing. Service may be made on any agent or officer of a corporation.

The formal hearing requirements of Section 84 are not required for this hearing.

D.

Administrative orders. When the director finds that a user has violated or continues to violate this resolution, permits or orders issued hereunder, or any other pretreatment requirement, the director may issue an order to cease and desist all such violations and direct those users in noncompliance to do any of the following:

1.

Immediately comply with all requirements;

2.

Comply in accordance with a compliance time schedule set forth in the order;

3.

Comply with additional monitoring requirements;

4.

Take specified remedial or preventive action;

5.

Disconnect from the POTW, in the event of a continuing or threatened violation, unless adequate treatment facilities, devices or other related appurtenances are installed and properly operated within a specified time period.

User compliance with the requirements of an administrative order does not relieve the user from liability for any violations occurring before or after receipt of the administrative order. Failure of a user to comply with any condition or requirement set forth in an administrative order is a violation of this resolution and is independently enforceable for each day of a violation.

E.

Emergency suspensions. The director may, after notice, immediately suspend sewer service to any user and/or a user's industrial wastewater permit when necessary to stop an actual or threatened discharge which reasonably appears to present or may present an imminent or substantial endangerment to the health or welfare of persons or the environment, or which interferes with the POTW or causes the POTW to violate any condition of its NPDES permit.

Any user notified of a suspension of sewer service shall immediately cease discharge of all wastewater. If the user does not voluntarily comply with the suspension order, the director shall take such steps as deemed necessary, including immediate severance of the sewer connection, to prevent or minimize damage to persons, the environment, or the POTW system. A hearing will be held within fifteen (15) days of the notice of suspension to determine whether the suspension may be lifted or the user's wastewater discharge permit terminated. The director shall reinstate the wastewater permit and the wastewater treatment service upon proof of the elimination of the noncompliant discharge. Prior to the hearing and as a prerequisite for reconnection, the user shall submit, to the director, a detailed written statement describing the causes of the harmful contribution and any and all measures taken to prevent any future occurrences.

F.

Termination of discharge or permission to discharge/revocation of permit.

1.

The director may terminate the discharge or permission to discharge and/or revoke the permit of any user or terminate sewer service as applicable for violations of this resolution, applicable state and federal regulations or for any other good cause, including, but not limited to, the following:

a.

Failure to accurately report the wastewater constituents and characteristics of its discharge;

b.

Failure to report significant changes in operations, or wastewater volume, constituents or characteristics prior to discharge;

c.

Refusal of reasonable access to the user's premises or records for the purpose of inspection or monitoring;

d.

Violation of effluent limitations, permit conditions, consent or administrative orders, or the requirements of this resolution.

e.

Failure to obtain a permit when required under this resolution;

f.

Failure to pay any charge's or fines related to sewer service and/or the pretreatment program.

g.

Misrepresentation or failure to fully disclose all relevant facts in a permit application;

h.

Falsifying self-monitoring reports; and

i.

Tampering with monitoring equipment.

j.

Violation of conditions of the permit or permission to discharge, conditions of this resolution or any applicable state and federal regulations.

Noncompliant users will be notified of the proposed termination of their wastewater discharge or revocation of their permit and will be offered an opportunity to show cause under Section 102(C) of this resolution why the proposed action should not be taken.

2.

A user whose permit has been revoked or terminated shall immediately stop all discharges of any liquid-carried wastes covered by the permit to the sewer system. A user whose permit has been revoked must apply for a new permit and pay all fees, charges, penalties, and such other sums as may be due to the city before issuance of a new permit is considered.

3.

The director may disconnect or permanently block from the sewer system the industrial sewer connection of any user whose permit has been revoked if such action is necessary to ensure compliance with the order of revocation.

G.

Posting of deposit or bond. A user who violates this resolution or a permit, order, or action issued under authority of this resolution may be required to post a deposit or bond, in a amount acceptable to the commission, to assure compliance under terms specified by the commission. Such bond shall be forfeited if compliance is not achieved.

(Res. of 6-9-03(2); Res. of 6-11-07)

Section 103. - Civil penalties/costs.

A.

Any user who is found to have failed to comply with any provisions of this resolution, or the orders, rules, regulations and permits issued hereunder, may be fined or assessed a civil penalty up to twenty-five thousand dollars ($25,000.00) per day, per violation.

1.

Penalties between ten thousand dollars ($10,000.00) and twenty-five thousand dollars ($25,000.00) per day per violation may be assessed against a violator only if:

a.

For any class of violation, only if a civil penalty has been imposed against the violator within the five (5) years preceding the violation, or

b.

In the case of failure to file, submit, or make available, as the case may be, any documents, data, or reports required by this resolution, or the orders, rules, regulations and permits issued hereunder, only if the director determines that the violation was intentional and a civil penalty has been imposed against the violator within the five (5) years preceding the violation.

B.

In determining the amount of the fine or civil penalty, the director shall consider the following:

1.

The degree and extent of the harm to the natural resources, to the public health, or to public or private property resulting from the violation;

2.

The duration and gravity of the violation;

3.

The effect on ground or surface water quality or on air quality;

4.

Reason for the violation;

5.

The amount of money saved by noncompliance;

6.

Whether the violation was committed willfully or unintentionally;

7.

The prior record of the violator in complying or failing to comply with the pretreatment program;

8.

The response of the industrial user with regard to the violation (e.g. notification to POTW, attempts to stop, remedy, or minimize the problem; and

9.

Subsequent industrial user action so that similar problems do not recur.

C.

Violators will be assessed the costs incurred by the commission resulting from:

1.

Investigative costs;

2.

Enforcement costs;

3.

Fines and expenses associated with violations of commission held permits (including fish kills and other environmental impacts);

4.

Terminating or revoking a permit;

5.

Severance of the sewer connections.

D.

Violators will also be assessed the cost to rectify the damage and the cost of the work required to clear and/or repair any part of the system affected by the discharge violation.

E.

Full payment of all fines, civil penalties and fees shall be made by the user before issuance of a new permit or reconnection to the sewer system.

F.

Assessments for fines, civil penalties and regular service charges shall be paid within thirty (30) days after invoice. If a payment is not made within the allotted time, the city may levy an additional late charge of ten (10) percent of the amount due.

G.

Fines and penalties assessed under this resolution and not paid within the prescribed period of time may be collected in a civil action pursuant to N.C.G.S. 160 A175(c). In addition, the city may seek criminal prosecution for a violation of this resolution, which shall constitute a misdemeanor as provided for in N.C.G.S. 160 A176 (c).

In addition to the penalties provided herein, the city may recover reasonable attorney's fees, court costs, court reporters' fees, and other expenses of litigation by appropriate suit at law against the person found to have been in violation.

H.

Appeals of fines or civil penalties assessed in accordance with this section shall be as provided in Section 84. The right to appeal is forfeited if the appeal is not requested within thirty (30) days of receipt of notice of the penalty. The director may utilize all remedies available for collection of such charges, in addition to remedies provided under this section. Costs approved by the commission are not subject to appeal.

(Res. of 6-9-03(2); Res. of 6-11-07)

Section 104. - Other available remedies.

In addition to the remedies previously noted in this resolution, the director may use any of the following, either singly or in combination, against a noncompliant user. These additional remedies include but are not limited to:

A.

Criminal violations. The District Attorney for the 21st Judicial District may, at the request of the city, prosecute noncompliant users who violate the provisions of N.C.G.S. 143-215.6B, regarding permit application, compliance and falsification.

B.

Injunctive relief. Whenever a user is in violation of the provisions of this resolution or an order or permit issued hereunder, the director, through the commission attorney, may petition the Superior Court of Justice for the issuance of a restraining order or a preliminary and permanent injunction which restrains or compels the activities in question.

C.

Water supply severance. Whenever a user is in violation of the provisions of this resolution or an order or permit issued hereunder, water service to the user may be severed and service will only recommence, at the user's expense, after it has satisfactorily demonstrated ability to comply.

D.

Public nuisances. Any violation of the prohibitions or effluent limitations of this resolution or of a permit or order issued hereunder, is hereby declared a public nuisance and shall be corrected or abated as directed by the director. Any person(s) creating a public nuisance shall be subject to the provisions governing such nuisances, including reimbursing the POTW for any costs incurred in removing, abating or remedying said nuisance.

(Res. of 6-9-03(2))

Section 105. - Annual publication of significant noncompliance.

At least annually, the director shall publish in the largest daily newspaper circulated in the service area, a list of those industrial users that were found to be in significant noncompliance with applicable pretreatment standards and requirements during the previous twelve (12) months.

(Res. of 6-9-03(2))