§ 98-173. Enforcement response.

3.1

Responsible personnel. In enforcing the city's pretreatment program, the responsibilities of city personnel are outlined as follows:

Public works director (director) (PWD) —Is responsible for the city's wastewater operations, including employee safety, protection of collection system and protection of the POTW. In addition, the director is responsible for administering and implementing the Enforcement Response Plan and enforcement actions. The director receives recommendations from the ESC regarding termination of sewer and/or water service, approves termination of service and recommendations, and may pursue criminal, civil or administrative sanctions.

Environmental services coordinator (ESC) —Administers the City of Haltom City's Pretreatment Program. This position serves as the industry's primary contact in the city regarding program policy and requirements. Under contractual agreement, the ESC coordinates with the City of Fort Worth's Pretreatment Services Division to provide assistance in inspection, sampling, and preparation of required semi-annual reports. The ESC manages the pretreatment program, including but not limited to, designing sampling plan, record-keeping, sample collection, inspections, industrial surveys, and preparation and validation of the annual list of SIUs in SNC status. Responsibilities also include validating issuance of notice of violations, issuing citations, planning additional sampling developing and implementing city's pretreatment program to insure compliance with local, state and federal pretreatment regulations, recommending other enforcement actions, such as NOVs, administrative orders, and termination of sewer/water service. The ESC evaluates NOV responses and requests additional information and responses as needed. The ESC is also authorized to make telephone calls regarding violations and serve informal warnings.

City attorney— Advises technical and managerial personnel on enforcement matters and coordinates the criminal, civil or administrative response as deemed necessary by the public works director. The city attorney advises on matters requiring legal interpretation of TCEQ regulations, the Industrial Wastewater Ordinance and the enforcement response plan. In addition, the city attorney shall be contacted for assistance in drafting and/or reviewing legal documents for administrative orders, such as a notice of violation, a consent order, a show cause order, or a compliance order.

3.2

Response criteria. When using the attached enforcement response guide to determine the appropriate enforcement action, the following criteria shall be considered:

A.

Magnitude of the violation—Incidents of significant noncompliance shall result in the facility being published in the local newspaper [as required by 40 CFR Part 403.8(f)(2)(viii)]. In addition, the facility will be subject to appropriate enforcement response(s).

B.

Duration of the violation—Enforcement response actions shall serve to prevent extended periods of noncompliance (regardless of severity) from recurring.

C.

Effect of the violation on the receiving water, POTW process, and sludge disposal—Any such violation shall be dealt with severely, and occurs when an facility discharges a pollutant into the sanitary sewer system which:

1.

Passes through the POTW (to a degree that the pass through meets the definition of pass through in the City's Industrial Wastewater Ordinance);

2.

Inhibits or disrupts the POTW, its treatment processes or operations, or its sludge processes, use or disposal;

3.

Causes a violation of the POTW's discharge permit, including violations of water quality standards, has a toxic effect on the receiving stream (i.e., fish kill.), or prevents sludge use or disposal.

D.

Effect of the violation on the POTW—Incidents that result in significant increases in treatment costs or harm city personnel, equipment, processes, or operations (including sludge disposal costs) shall be subject to appropriate enforcement response(s).

E.

Compliance history of the user—Recurring compliance problems (even of different program requirements) shall result in an escalation of enforcement to insure that consistent compliance is achieved.

F.

Good faith of the user—A user's demonstrated willingness to comply shall be taken into account when the city is determining the appropriate enforcement response; however, good faith will not eliminate the necessity of an enforcement action. Good faith shall be defined as the user's honest intention to remedy its noncompliance in a timely fashion in conjunction with actions, which lend support to this intention.

3.3

Response actions. Following the identification of a pretreatment violation, including the determination as to its significance in accordance with the Industrial Wastewater Ordinance, as revised, the most appropriate enforcement response will be selected and applied. This response must be proportionate to the violation severity, promote compliance in a timely manner, and be authorized under state law and the chapter 98, article IV, "industrial wastewater" of the City Code.

The director is authorized to take the following enforcement response actions:

A.

Issue a notice of deficiency.

B.

Issue a notice of violation.

C.

Schedule and informal meeting.

D.

Issue administrative orders:

1.

Consent order,

2.

Show cause order,

3.

Compliance Order,

4.

Emergency suspension order,

5.

Non-emergency termination order.

E.

Initiate civil litigation, with approval of city manager:

1.

Consent decree,

2.

Injunction,

3.

Civil penalty/cost recovery.

F.

Issue general complaint citations.

G.

Initiate criminal prosecution.

H.

Terminate sewer and/or water service.

I.

Issue supplemental enforcement actions (BMPs, EMS, P2).

J.

Issue a public notice (SNC).

K.

Increase monitoring and reporting.

L.

Utilize the economic incentive matrix.

A brief description of each enforcement action is presented below, including a sample document where applicable. The sample documents in Appendix B are included for illustrative purposes, only. Should the director or the ESC need to issue an order, they should consult the city attorney with assistance in drafting or reviewing an administrative order or other legal document. In addition, the Enforcement Response Guidelines, found in Appendix A of this plan, clarify when each enforcement action should be used and identifies personnel authorized to issue an order or initiate an enforcement action.

A.

Notice of deficiency. An informal communication from the city to the user which informs the user of a deficiency. If the information requested is not received within ten days, a notice of violation will be issued.

B.

Notice of violation (NOV). An official communication from the city to the noncompliant user which informs the user that a pretreatment violation has occurred. Multipurpose use for non-significant violations, and for significant violations (generally in conjunction with additional actions.) Sample attached. Field notice is given for pH and temperature violations in the field. Formal violations are issued later.

C.

Informal meeting with user. The city may require that the user attend a meeting to discuss any enforcement related issues. The city will work with the user as much as possible to schedule the meeting at a convenient time; however, it is ultimately the user's responsibility to attend any scheduled meeting.

D.

Administrative orders. Enforcement documents which direct a user to undertake or to cease specified activities. The terms of the administrative order may or may not be negotiated with a user. Unless more severe action is justified, an administrative order is generally used as the first formal response to significant noncompliance and may incorporate compliance schedules, administrative penalties, and termination of service. The director may utilize one of four types of administrative orders. A sample of each type is attached. Administrative orders may require the evaluation of current treatment system and/or the installation of new technology to meet limits. Self-monitoring requirements and listed frequency are normally added to assure consistent compliance with pretreatment modifications.

1.

Consent order. An agreement between the city and the user that normally includes: (1) compliance schedules; (2) stipulated fines or remedial actions; and (3) signatures of city and industry representatives.

2.

Show cause order. An order that 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 that directs the 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.

4.

Emergency suspension order. An order that directs the noncompliant user to cease illegal or unauthorized discharges immediately, or to terminate the discharge altogether. Generally used in situations where the discharge could cause interference or pass through, or otherwise create an emergency situation.

5.

Non-emergency termination order. An order that directs the noncompliant user to cease illegal or unauthorized discharges immediately, or to terminate the discharge altogether. Generally used as escalating enforcement action in a non-emergency situation.

E.

Civil litigation. The formal process of filing lawsuits against a user to secure court ordered action to correct violations and to secure penalties for violations including the recovery of costs to the city for the noncompliance. Normally pursued when the corrective action required is costly and complex, or when the user is considered recalcitrant and unwilling to cooperate. The city will typically utilize three types of civil litigation:

1.

Consent decree. Agreement between the city and the user reached after the lawsuit has been filed. Signed by the judge assigned to the case.

2.

Injunction. Agreement between the city and the user reached after the lawsuit has been filed. Signed by the judge assigned to the case.

3.

Civil penalties/cost recovery. Reimbursement to the city of all expenses incurred in responding to noncompliance, including restoration of the physical plant, payment of medical treatment of injured employees, and indemnification of the city for all fines assessed against it for discharge permit violations, which is generally higher than administrative fines.

F.

General complaint citations. Citations may be issued under the city's police power and authority to enforce ordinances. The citations are criminal actions administered through the city's municipal court.

G.

Criminal prosecution. The formal process of charging individuals and/or organization with violations of ordinance provisions that are punishable (upon conviction) by fines and/or imprisonment. The purpose of criminal prosecution is to punish noncompliance through court proceedings and to deter future noncompliance.

H.

Termination of sewer and/or water service. The revocation of a user's privilege to discharge wastewater regulated by pretreatment services division into the city's sewer system. Termination may be accomplished by physical severance of the industry's connection to the sewer system, by use of an administrative order, or by a court ruling. This action will be considered to be an appropriate response to industries, which have not adequately responded to previous enforcement actions. This action requires prior notice to the user sufficient to avoid backflows, spills, or other harm to the treatment facility. A sample of such notice is attached. The city's Industrial Wastewater Ordinance also provide for the termination of water service, in addition to sewer service termination.

I.

Supplemental enforcement actions. Best management practices (BMPs), environmental management system (EMS) implementation, pollution prevention programs (P2). When a user has demonstrated a history of noncompliance the city may at its discretion require the user to initiate best management practices, the development and implementation of an environmental management system and/or appropriate pollution prevention programs offered by agencies such as, but not limited to, EPA and TCEQ.

J.

Public notice. In accordance with 40 CFR 403.8(f)(2)(viii), the city must annually publish a list of all users who significantly violated applicable pretreatment standard requirements during the pretreatment reporting year. Significant noncompliance shall be identified four times a year, in accordance with EPA guidelines, as shown in the "rolling quarters" method.

K.

Increased monitoring and reporting. When a user has demonstrated a history of noncompliance the city may increase surveillance of that industry, including the requirement of additional self-monitoring and reporting.

L.

Economic incentive matrix. The actions of a user which results in increased monitoring, reporting and administrative efforts due to noncompliance are considered part of an economic cost matrix utilized to offset the cost of the city's pretreatment program and provide an economic incentive for compliance. Additional fees are assessed for continued noncompliance and further enforcement actions. The fees are cumulative as the noncompliance continues. Each NOV, administrative order, and SNC are assessed separately.

(Ord. No. O-2012-001-11, § 2(3—3.3), 1-30-12)