69-3-125 - Pretreatment enforcement Violations Civil penalty.
69-3-125. Pretreatment enforcement Violations Civil penalty.
(a) (1) Any person, including, but not limited to, industrial users, who does any of the following acts or omissions shall be subject to a civil penalty of up to ten thousand dollars ($10,000) per day for each day during which the act or omission continues or occurs:
(A) Violates an effluent standard or limitation imposed by a pretreatment program;
(B) Violates the terms or conditions of a permit issued pursuant to a pretreatment program;
(C) Fails to complete a filing requirement of a pretreatment program;
(D) Fails to allow or perform an entry, inspection, monitoring or reporting requirement of a pretreatment program;
(E) Fails to pay user or cost recovery charges imposed by a pretreatment program; or
(F) Violates a final determination or order of the local hearing authority or the local administrative officer.
(2) Any civil penalty shall be assessed in the following manner:
(A) The local administrative officer may issue an assessment against any person or industrial user responsible for the violation;
(B) Any person or industrial user against whom an assessment has been issued may secure a review of such assessment by filing with the local administrative officer a written petition setting forth the grounds and reasons for the violator's objections and asking for a hearing in the matter involved before the local hearing authority and, if a petition for review of the assessment is not filed within thirty (30) days after the date the assessment is served, the violator shall be deemed to have consented to the assessment and it shall become final;
(C) Whenever any assessment has become final because of a person's failure to appeal the local administrative officer's assessment, the local administrative officer may apply to the appropriate court for a judgment and seek execution of such judgment and the court, in such proceedings, shall treat a failure to appeal such assessment as a confession of judgment in the amount of the assessment;
(D) In assessing the civil penalty, the local administrative officer may consider the following factors:
(i) Whether the civil penalty imposed will be a substantial economic deterrent to the illegal activity;
(ii) Damages to the pretreatment agency, including compensation for the damage or destruction of the facilities of the publicly owned treatment works, and also including any penalties, costs and attorneys' fees incurred by the pretreatment agency as the result of the illegal activity, as well as the expenses involved in enforcing this section and the costs involved in rectifying any damages;
(iii) Cause of the discharge or violation;
(iv) The severity of the discharge and its effect upon the facilities of the publicly owned treatment works and upon the quality and quantity of the receiving waters;
(v) Effectiveness of action taken by the violator to cease the violation;
(vi) The technical and economic reasonableness of reducing or eliminating the discharge; and
(vii) The economic benefit gained by the violator; and
(E) The local administrative officer may institute proceedings for assessment in the chancery court of the county in which all or part of the pollution or violation occurred, in the name of the pretreatment agency.
(3) The local hearing authority may establish by regulation a schedule of the amount of civil penalty that can be assessed by the local administrative officer for certain specific violations or categories of violations.
(b) Any civil penalty assessed to a violator pursuant to this section may be in addition to any civil penalty assessed by the commissioner for violations of § 69-3-115(a)(1)(F). However, the sum of penalties imposed by this section and by § 69-3-115(a) shall not exceed ten thousand dollars ($10,000) per day for each day during which the act or omission continues or occurs. The state's share of any additional costs of this section shall be funded in accordance with § 9-6-303, from the increase in state imposed taxes that are earmarked to counties and that are not designated by such counties for a particular purpose.
[Acts 1987, ch. 111, § 4.]