(Amended by Ordinance Nos. 165068, 180037 and 185397, effective July 6, 2012.) Dischargers that fail to comply with the requirements of this Chapter and rules adopted hereunder may be subject to enforcement actions by the Director.
1. A violation shall have occurred when any requirement of this Chapter or rules adopted hereunder has not been met, or when any condition of a permit or agreement issued under the authority of this Chapter or rules adopted hereunder is not met.
2. Each day a violation occurs or continues shall be considered a separate violation.
3. For violations of discharge limits, each parameter that exceeds a discharge limit shall be considered a separate violation except as provided elsewhere in this Chapter or rules adopted hereunder.
4. Where a discharge causes interference or pass through, the discharger shall have an affirmative defense where it is demonstrated that:
a. It did not know or have reason to know that its discharge, alone or in conjunction with a discharge or discharges from other sources, would cause pass through or interference; and
b. The discharge was in compliance with properly developed local limits prior to and during the pass through or interference; or
c. If a local limit designed to prevent pass through or interference has not been developed for the pollutants that caused the pass through or interference, the discharger’s discharge directly prior to and during the pass through or interference did not change substantially in nature or constituents from prior discharge activity which was regularly in compliance with the requirements of this Chapter and rules adopted hereunder.
B. Significant Non-compliance. An industrial user shall be designated in significant non-compliance if one or more of the following exist:
1. Chronic violations of wastewater discharge limits. Chronic violations occur when at least 66 percent of all the measurements taken during a 6 month period exceed any pretreatment standard for the same pollutant parameter.
2. Technical Review Criteria (TRC) violations. TRC violations occur when at least 33 percent of all of the measurements for each pollutant parameter taken during a 6 month period equal or exceed the sum of any pretreatment standard multiplied by the applicable TRC (TRC = 1.4 for BOD, TSS, fats, oil, and grease; and 1.2 for all other pollutants except pH).
3. Any other violation of any pretreatment standard that the Director determines has caused, alone or in combination with other discharges, interference or pass through (including endangering the health of POTW personnel or the general public).
4. Any discharge of a pollutant that has caused imminent endangerment to human health, welfare or to the environment.
5. Any discharge that has required the Director to use emergency authority to halt or prevent such a discharge.
6. Failure of an industrial user to meet a compliance schedule milestone contained in an industrial wastewater discharge permit or enforcement order for starting construction, completing construction, or attaining final compliance.
7. Failure of an industrial user to provide, within 30 days after the due date, required reports such as applications, baseline monitoring reports, 90-day compliance reports, periodic self-monitoring reports, and reports on compliance with compliance schedules.
8. Failure of an industrial user to accurately report noncompliance.
9. Any other violation or group of violations that the Director of Environmental Services determines will adversely affect the operation or implementation of the local pretreatment program.
C. Enforcement Mechanisms. In enforcing any of the requirements of this Chapter or administrative rule, the Director may:
1. Take civil administrative actions, as set out in rules adopted under the authority of this Chapter;
2. Issue compliance orders;
3. Institute an action before the Code Hearings Officer;
4. Cause an appropriate action to be instituted in a court of competent jurisdiction; or
5. Take such other action as the Director deems appropriate.
D. Civil Penalties. Violations of this Chapter or rules adopted hereunder may result in assessment of civil penalties in an amount up to $5,000 per day per violation. All civil penalties shall be deposited with the City Treasurer. Failure to pay a civil penalty within 30 days following a final determination regarding the penalty is grounds for permit revocation or termination of the permittee’s discharge. Penalties shall accrue interest and other charges until the penalty is paid in full.
E. Termination or prevention of a discharge/permit revocation.
1. The Director may terminate or prevent a discharge into the City sewer system or revoke an industrial wastewater discharge permit if:
a. The discharge or threatened discharge presents or may present an endangerment to the health or welfare of persons or the environment, or threatens to interfere with the operation of the City sewer system; or
b. The permit to discharge into the City sewer system was obtained by misrepresentation of any material fact or by lack of full disclosure; or
c. The discharger violates any requirement of this Chapter or of an industrial wastewater discharge permit; or,
d. Such action is directed by a court of competent jurisdiction.
2. Notice of termination or prevention of discharge or permit revocation shall be provided to the industrial wastewater discharger or posted on the subject property prior to terminating or preventing the discharge or revoking a permit.
a. In situations that do not represent an imminent endangerment to health or the environment or an imminent threat of interference with the sewer system, the notice shall be in writing, shall contain the reasons for the termination or prevention of the discharge or permit revocation, the effective date, the duration, and the name, address and telephone number of a City contact, shall be signed by the Director, and shall be received at the business address of the discharger no less than 30 days prior to the effective date.
b. In situations where there is an imminent endangerment to the health or welfare of persons or the environment or an imminent threat of interference with the operation of the sewer system, the Director may immediately terminate an existing discharge or prevent a new discharge from commencing or revoke a permit after providing informal notice to the discharger or after posting such notice on the subject property. Informal notice may be verbal or written and shall include the effective date and time and a brief description of the reason. Within 3 working days following the informal notice, a written formal notice as described in 17.34.110(d)(2)(A) shall be provided to the discharger.
3. The Director shall reinstate an industrial wastewater discharge permit which has been revoked or shall reinstate industrial wastewater treatment service upon clear and convincing proof by the discharger of the elimination of the noncomplying discharge or conditions creating the threat of endangerment or interference.
F. Annual Publication. A list of Significant Industrial Users that are subject to the definition of significant noncompliance shall be published annually in the newspaper of general circulation published inPortland, summarizing the enforcement actions taken against industrial users during a prior twelve month period.
G. Cost recovery.
1. The Director may recover all reasonable costs incurred by the City which are attributable to or associated with violations of this Chapter, including but not limited to the costs of administration, investigation, sampling and monitoring, legal or enforcement activities, damage to or contamination of the sanitary or combined sewer systems. BES may recover costs associated with remediation of a violation, contracts and health studies, and any fines and civil penalties assessed to the City that result from activities not in compliance with this Chapter or rules adopted hereunder. Liens may be imposed on the property or properties in accordance with the provisions of Chapter 22.06.
2. All such costs shall be documented by the City and shall be served upon the discharger by certified or registered mail, return receipt requested. Such documentation shall itemize the costs the Director has determined are attributable to the violations.
3. The costs are due and payable by the discharger upon receipt of the letter documenting such costs. All such costs shall be paid to the City Treasurer and credited to the Sewage Disposal Fund. Nonpayment or disputes regarding the amount shall be referred for appropriate action to the City Attorney. The City Attorney may initiate appropriate action against the discharger to recover costs under this Section.
4. The Director may terminate a discharge for nonpayment of costs after 30 days notice to the discharger.
H. Appeal of enforcement action.
1. Upon receipt of a final determination of an enforcement action, discharger may appeal any of the following items to the Code Hearings Officer in accordance with procedures set out at Chapter 22.10 of the Portland City Code:
a. The final determination of violation;
b. The amount of civil penalty;
c. The required remediation action
d. The time frame for corrective action;
e. Termination of service or permit.
2. The following are not appealable to the Code Hearings Office;
a. Costs related to nuisance abatement, appeal processing or assessed environmental damage;
3. All appeals shall include a copy of all relevant documentation, including the Bureau’s final determination letter, that is the subject of the appeal. Documentation shall state the basis for the appeal, and shall be filed with the Bureau of Environmental Services which shall initiate the Code Hearings Officer review.
I. City not liable. Nothing in this Chapter shall be construed to confer liability on the City for any injury or damage resulting from the failure of responsible parties to comply with the provisions of this Chapter.