§ 78-138. Enforcement procedures.

(a)

Notice of violation (NOV) and compliance meeting. When the assistant to the city manager for public services finds that a user has violated, or continues to violate, any provision of this article, an industrial wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or requirement, the assistant to the city manager for public services may serve upon that user a written notice of violation. Within ten days of the receipt of such notice, an explanation of the violation and a plan for the satisfactory correction and prevention thereof, to include specific required actions, shall be submitted by the user to the assistant to the city manager for public services. Submission of such a plan in no way relieves the user of liability for any violations occurring before or after receipt of the notice of violation. Nothing in this section shall limit the authority of the assistant to the city manager for public services to take any action, including emergency actions or any other enforcement action, without first issuing a notice of violation. The user may also be directed to attend a compliance meeting with representatives of the city. The purpose of the compliance meeting shall be for the industrial user to present and establish such procedures, investigations, studies, and compliance measures as are necessary to control and prevent future violations of this article. The user shall be bound by such procedures, etc., and during the compliance meeting the user shall agree to a date certain beyond which no further violations shall occur. Failure to comply with the compliance meeting procedures, etc., or the date shall be deemed a violation of this article and may be grounds for revocation of the user's wastewater discharge permit and grounds for such other actions, penalties or enforcement or all or any combination of these things as may be authorized for violation of this article.

(b)

Notice of significant noncompliance (NOSNC). Whenever an SIU has violated the IWDP or any provision of 40 CFR Part 403 or 62-625 F.A.C., a notice of significant noncompliance shall be issued if the city determines the violation to constitute significant noncompliance as defined in section 78-127. The NOSNC shall clearly state the noncompliance and require the SIU, within ten working days of the receipt date of this notice, to respond in writing to the violation and submit a written plan outlining what steps will be taken to gain compliance and prevent reoccurrence of the violation. In addition to the NOSNC the city shall insert an annual public notification of all SIUs in SNC in the daily newspaper with the largest circulation in the immediate area served by the POTW.

(c)

Consent orders. The assistant to the city manager for public services may enter into consent orders, assurances of compliance, or other similar documents establishing an agreement with any user responsible for noncompliance. Such documents shall include specific action to be taken by the user to correct the noncompliance within a time period specified by the document. Such documents shall have the same force and effect as the compliance or cease and desist orders issued pursuant to subsections (d) and (g) of this article and shall be judicially enforceable.

(d)

Compliance orders. When the assistant to the city manager for public services finds that a user has violated, or continues to violate, any provision of this article, an industrial wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or requirement, the assistant to the city manager for public services may issue an order to the user responsible for the discharge directing that the user come into compliance within a specified time. If the user does not come into compliance within the time provided, sewer service may be discontinued unless adequate treatment facilities, devices, or other related appurtenances are installed and properly operated. Compliance orders also may contain other requirements to address the noncompliance, including additional self-monitoring and management practices designed to minimize the amount of pollutants discharged to the sewer. A compliance order may not extend the deadline for compliance established for a pretreatment standard or requirement, nor does a compliance order relieve the user of liability for any violation, including any continuing violation. Issuance of a compliance order shall not be a bar against, or a prerequisite for, taking any other action against the user.

(e)

Emergency suspensions and termination of service. The city may suspend the wastewater treatment service and an industrial wastewater discharge permit when such suspension is necessary, in the opinion of the assistant to the city manager for public services, in order to stop an actual or threatened discharge which represents or may present an imminent or substantial endangerment to the health or welfare of persons or to the environment, which causes interference to the POTW or which causes or may cause the city to violate any conditions of its NPDES permit.

(1)

Any person notified of a suspension of the wastewater treatment service or the IWDP or either of these things shall immediately stop or eliminate the discharge. Methods of notice shall include but shall not be limited to personal conversation between the user or his representative and the assistant to the city manager for public services; telephone calls of this same nature; letters, either mailed or hand-delivered; hand-delivered messages; or notices posted at the user's premises or the point of discharge into the city's wastewater system.

(2)

If the person fails to comply voluntarily with the suspension order, the city shall take such steps as deemed necessary, including but not limited to immediate severance of the sewer connection or water connection, to prevent or minimize damage to the POTW system or endangerment to any individuals.

(3)

The city may reinstate the IWDP and the wastewater treatment service upon proof of the elimination of the noncomplying discharge and demonstration of measures to prevent future occurrences.

(4)

A detailed written statement submitted by the user describing the cause of the discharge and the measures taken to prevent any future occurrence shall be submitted to the city within 15 days of the date of the occurrence.

(f)

IWDP revocation. Any industrial user who violates the conditions outlined in subsection 78-136(j) of this article or other applicable local, regional, state, or federal laws, regulations and case decisions is subject to having the IWDP revoked by the assistant to the city manager for public services.

(g)

Cease and desist order. When the assistant to the city manager for public services finds that a user has violated, or continues to violate, any provision of this article, an industrial wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or requirement, or that the user's past violations are likely to recur, the assistant to the city manager for public services may issue an order to the user directing it to cease and desist all such violations and directing the user to:

(1)

Immediately comply with all requirements; and

(2)

Take such appropriate remedial or preventive action as may be needed to properly address a continuing or threatened violation, including halting operations and/or terminating the discharge. Issuance of a cease and desist order shall not be a bar against, or a prerequisite for, taking any other action against the user.

(h)

Show cause hearing. The city may order any user who causes or allows an unauthorized discharge or who otherwise violates this article in any way to show cause before the code enforcement board why a proposed enforcement action should not be taken. A notice shall be served on the user specifying the time and place of a hearing to be held regarding the violation, the reasons why the action is to be taken, the proposed enforcement action, and directing the user to show cause why the proposed enforcement action should not be taken. The notice of the hearing shall be served personally or by registered or certified mail at least ten days before the hearing. Service may be made on any agent or officer of a corporation or on the local representative as identified in the permit application. The code enforcement board may itself conduct the hearing and take evidence or may designate any of its members or any officer or employee of the city to:

(1)

Issue notices of hearings requesting the attendance and testimony of witnesses and the production of evidence relevant to any matter involved in such hearing.

(2)

Take evidence.

(3)

Transmit a report of the evidence and hearing, including transcripts and other evidence, together with recommendations to the code enforcement board for action thereon. After the code enforcement board has reviewed the evidence, it may issue an order to the user responsible for the discharge directing that, following a specified time period, the sewer service be discontinued unless adequate treatment facilities, devices or other related appurtenances shall have been installed or unless existing treatment facilities, devices or other related appurtenances are properly operated. Further orders and directives as are necessary and appropriate may be issued. The industrial user shall have the opportunity to appear before the code enforcement board prior to its final decision and present oral and written arguments. Nothing in this subsection may prevent the city from taking immediate, appropriate, or emergency actions or all of these things to prevent a violation or a further violation of this article when, in the city's sole discretion, circumstances warrant an immediate response to any such violation.

(i)

Injunctive relief. The city may, immediately upon discovering an ongoing or potential discharge of pollutants into the city's POTW which reasonably appears to exceed the requirements or conditions described in this article, petition the circuit court of the county or the federal district court for a temporary restraining order or preliminary injunction to halt or prohibit such discharge. Prior to the filing of such a petition, the assistant to the city manager for public services shall attempt to notify the user of the city's intention to file such action. Notice may be of the type outlined in this section, but shall not be a condition precedent to the city's petitioning for and obtaining such an order or injunction.

(j)

Recovery of costs to city. In addition to remedies available to the city as set forth elsewhere in this article, if the city is fined by the state or the EPA or any other governmental agency for a violation of water quality standards as the result of a discharge of pollutants, the fine and all city legal, sampling, analytical testing and any other related costs shall be charged to the responsible user. Such charges shall be in addition to and not in lieu of any other remedies the city may have under this article or under any statutes or regulations, at law or in equity.

(k)

Obstructions. If the discharge from any user causes a deposit, obstruction, or damage to any of the city's wastewater facilities, the assistant to the city manager for public services shall cause the deposit or obstruction to be promptly removed or cause the damage to be promptly repaired, at the sole cost of the person or user causing such deposit, obstruction, or damages.

(l)

Remedies non-exclusive. The remedies provided for in this article are not exclusive. The assistant to the city manager for public services may take any, all, or any combination of these actions against a noncompliant user. Enforcement of pretreatment violations will generally be in accordance with the city's enforcement response plan. However, the assistant to the city manager for public services may take other action against any user when the circumstances warrant. Further, the assistant to the city manager for public services is empowered to take more than one enforcement action against any noncompliant user.

(m)

Affirmative relief. In addition to any fine levied under this article, the city may, where the circumstances of the particular case so dictate, but in the sole discretion of the assistant to the city manager for public services, seek injunctive relief to prohibit the user from discharging any wastewater into the city's sanitary sewer system or to provide such other affirmative relief as may be appropriate.

(n)

Excess flow. A person or user whose discharge flow exceeds 50,000 gallons per day on the day of the violation or 50,000 gallons as an average during the month that the violation occurs may be assessed up to and including twice the amounts described in this section.

(o)

Administrative fines. Any industrial user who violates any section of this article shall be subject to a penalty not exceeding $1,000.00 per day per violation for each day that the user is in violation of this article. Administrative fines shall be issued in accordance with the City of Winter Garden Enforcement Response Plan as approved by the Florida Department of Environmental Protection. In the case of monthly or other long-term average discharge limits, fines shall be assessed for each day during the period of violation. The city may add the costs of preparing administrative enforcement actions, such as notices and orders, to the fine. Issuance of an administrative fine shall not be a bar against, or a prerequisite for, taking any other action against the user. The city may provide for larger penalties where appropriate (e.g., where the industrial user has a history of violations, etc.). This minimum penalty shall in no way limit the city's ability to seek larger penalties in appropriate cases or to allow the city to mitigate the penalty depending upon the circumstances of each case or violation.

(p)

City analyses. If there is a difference in understanding between the city and the user as to the characteristics in the wastewater, the city reserves the right to use the city analyses and results to thereafter compute any fees that may be assessed.

(q)

Penalties owing. The city also reserves the right to revoke a discharge permit of or disconnect wastewater service to, or both of these things, any user whenever penalties or fees are due and owing for a period of more than 14 days following the date of notification to the user that a chargeable violation has occurred.

(r)

Falsification. 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 article or pursuant to any wastewater discharge permit or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or sampling or analysis or information-gathering method required under this article shall be subject to the penalties and costs provided in this section and any other penalty that may be provided under this Code or any other applicable local, state, or federal law or regulation.

(s)

Civil penalties. A user who has violated, or continues to violate, any provision of this article, an industrial wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or requirement shall be liable to the city for a civil penalty of not less than $1,000.00 a day for each violation. 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.

(1)

The assistant to the city manager for public services may recover reasonable attorneys' 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.

(2)

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 of the violation, 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.

(3)

Filing a suit for civil penalties shall not be a bar against, or a prerequisite for, taking any other action against a user.

(t)

Criminal prosecution. Any SIU who willfully or negligently violates any provision of the city's sewer use ordinance (SUO), permit, or order issued hereunder, or any other pretreatment standard or requirement shall, upon conviction, be punished by a fine of at least $1,000.00 a day for each violation. Any SIU who knowingly makes false statements, representations, or certifications in any application, record report, plan or other documentation filed, or required to be maintained, pursuant to the SUO, permit, or order, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required under the SUO, shall, upon conviction, be punished by a fine of at least $1,000.00 a day for each violation.

(Ord. No. 11-38, § I(Exh. A), 12-8-11)