§ 25-100.4. Penalties.

(a)

Administrative fines.

(1)

When the city finds that a user has violated, or continues to violate, any provision of this article, an individual wastewater discharge permit, a general permit, an order issued hereunder, or any other pretreatment standard or requirement, the city may fine such user in an amount not less than one thousand dollars ($1,000.00) and not more than thirty-two thousand five hundred dollars ($32,500.00) per violation, up to one hundred thousand dollars ($100,000.00) per order, or such larger amount as may be consented to by the user. Such fines shall be assessed on a per-violation, per-day basis. In the case of monthly or other long-term average violations, fines shall be assessed for each day during the period of violation. In addition to fines, an order may include a monetary assessment for actual damages to sewers, treatment works and appurtenances and for costs, attorneys' fees and other expenses resulting from the violation.

(2)

The city may assess fines under this subsection if (i) the user has been issued at least two (2) written notices of alleged violation by the city for the same or substantially related violations at the same site, (ii) such violations have not been resolved by demonstration that there was no violation, by an order issued by the city, or by other means, (iii) at least one hundred thirty (130) days have passed since the issuance of the first notice of alleged violation, and (iv) there is a finding that such violations have occurred following a hearing conducted in accordance with section 25-100.2. The actual amount of any fine assessed shall be based upon the severity of the violation(s), the extent of any potential or actual environmental harm, the compliance history of the facility or person, any economic benefit realized by the person from the noncompliance, and the ability of the person to pay the penalty. The city shall provide the person with the calculation for the proposed penalty prior to any hearing conducted for the issuance of an order that assesses penalties pursuant to this subsection. Any notice of alleged violation shall include a description of each violation, the specific provision(s) of law violated, and information on the process for obtaining a final decision or fact finding from the city on whether or not a violation has occurred. Nothing in this section shall preclude a user from seeking a final decision or fact finding. Where appropriate, the superintendent may accept mitigation projects in lieu of the payment of fines where the projects provide a valuable service to the POTW or the member jurisdictions and the industrial user's expense in undertaking the project is at least one hundred fifty (150) percent of the civil penalty.

(3)

Unpaid fines and monetary assessments shall, after thirty (30) calendar days, be assessed an additional penalty of ten (10) percent of the unpaid balance, and interest shall accrue thereafter at a rate of ten (10) percent per month on the entire amount, including penalties. A lien against the user's property shall be sought for unpaid fines, monetary assessments, penalties and interest.

(4)

A user desiring to dispute fines and/or monetary assessments must file a written request for the city to reconsider, along with full payment of the amount due, within thirty (30) days after being notified of such fines/or monetary assessments. Where a request has merit, the city may convene a hearing on the matter. In the event the user's appeal is successful, the payment, together with any interest accruing thereto, shall be returned to the user. The city may add the costs of preparing administrative enforcement actions, such as notices and orders, to the fine.

(5)

Issuance of an administrative fine shall not be a bar against, or a prerequisite for, taking any other action against a user.

(b)

Criminal penalties.

(1)

A user who willfully or negligently violates any provision of this article, an individual wastewater discharge permit, a general permit, an order issued hereunder, or any other pretreatment standard or requirement shall, upon conviction, be guilty of a Class 1 misdemeanor, unless another penalty is expressly provided.

(2)

A user who willfully or negligently introduces any substance into the POTW that causes personal injury or property damage shall, upon conviction, be guilty of a Class 1 misdemeanor. This charge shall be in addition to any other civil or criminal action for personal injury or property damage available under state law.

(3)

A user who that knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other documentation filed, or required to be maintained, pursuant to this article, an individual wastewater discharge permit, a general permit, or an order issued hereunder, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required under this article shall, upon conviction, be guilty of a Class 1 misdemeanor.

(c)

Civil penalties.

(1)

A user who has violated, or continues to violate, any provision of this article, an individual wastewater discharge permit, a general permit, an order issued hereunder, or any other pretreatment standard or requirement shall be liable to the city for a maximum civil penalty as provided in subdivision 10b of § 15.2-2122 of the Code of Virginia. In the case of monthly or other long-term average violations, penalties shall accrue for each day during the period of the violation.

(2)

The city 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 and the POTW.

(3)

In determining the amount of civil liability, the court shall take into consideration 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 taken by the user, the compliance history of the user, and any other factor as justice requires.

(4)

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

(Ord. No. 12-1700-936, § 1, 10-2-12)

(Ord. No. 12-1700-936, § 1, 10-2-12)