No unauthorized person shall maliciously, willfully or negligently
break, damage, destroy, uncover, deface or tamper with any structure,
appurtenance or equipment which is a part of the City's Sewage
Works. Any person violating this provision shall be subject to immediate
arrest and criminal and/or civil charges in accordance with this chapter.
A.
Right of entry: inspection and sampling. The Commissioner shall have the right to enter the premises of any user to determine whether the user is complying with all requirements of Chapter 389 and any individual wastewater discharge permit described in § 389-50 or order issued hereunder. Users shall allow the Commissioner ready access to all parts of the premises for the purposes of inspection, sampling, records examination and copying, and the performance of any additional duties.
(1)
Where a user has security measures in force which require proper
identification and clearance before entry into its premises, the user
shall make necessary arrangements with its security guards so that,
upon presentation of suitable identification, the Commissioner shall
be permitted to enter without delay for the purposes of performing
specific responsibilities.
(2)
The Commissioner shall have the right to set up on the user's
property, or require installation of, such devices as are necessary
to conduct sampling and/or metering of the user's operations.
(3)
The Commissioner may require the user to install monitoring equipment
as necessary. The facility's sampling and monitoring equipment
shall be maintained at all times in a safe and proper operating condition
by the user at its own expense. All devices used to measure wastewater
flow and quality shall be calibrated annually to ensure their accuracy.
(4)
Any temporary or permanent obstruction to safe and easy access to
the facility to be inspected and/or sampled shall be promptly removed
by the user at the written or verbal request of the Commissioner and
shall not be replaced. The costs of providing such access shall be
borne by the user.
(5)
Unreasonable delays in allowing the Commissioner access to the user's premises shall be a violation of Chapter 389.
(6)
The Commissioner shall be permitted to enter upon all properties
for the purposes of inspection, observation, measurement, sampling
and testing, in accordance with the provisions of this chapter.
(7)
Representatives of the NYSDEC and EPA are also hereby given permission
to enter properties for the same purposes. All NYSDEC and/or EPA inspectors
are hereby given the right to review and copy records.
B.
Search warrants. If the Commissioner has been refused access to a building, structure, or property, or any part thereof, and is able to demonstrate probable cause to believe that there may be a violation of Chapter 389, or that there is a need to inspect and/or sample as part of a routine inspection and sampling program of the City designed to verify compliance with Chapter 389 or any permit or order issued hereunder, or to protect the overall public health, safety and welfare of the community, the Commissioner may seek issuance of a search warrant from the Middletown City Court or other court of competent jurisdiction.
A.
Notification of violation. The City will enforce this chapter based on recommendations in this chapter and in the City's Enforcement Response Plan. When the Commissioner finds that a user has violated, or continues to violate, any provision of Chapter 389, an individual wastewater discharge permit, or order issued hereunder, or any pretreatment standard or pretreatment requirement, the Commissioner may serve upon that user a written notice of violation. Within 30 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 Commissioner. 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. Issuance of a notice of violation shall not be a bar against, or prerequisite for, taking any other action against the user, including emergency actions.
B.
Consent orders. The Commissioner 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 administrative orders issued pursuant to § 389-39D and E and shall be judicially enforceable.
C.
Show cause hearing.
(1)
The Commissioner may order a user that has violated, or continues to violate, any provision of Chapter 389, an individual wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or pretreatment requirement, to appear before the Commissioner and show cause why the proposed enforcement action should not be taken. Notice shall be served on the user specifying the time and place for the meeting, the proposed enforcement action, the reasons for such action, and a request that the user show cause why the proposed enforcement action should not be taken. The notice of the meeting shall be served personally, or by registered or certified mail (return receipt requested) and regular first class mail, at least 10 days prior to the hearing. Such notice may be served on any authorized representative of the user. A show cause hearing shall not be a bar against, or prerequisite for, taking any other action against the user, including emergency actions. Service also may be made on any agent or officer of a corporation or any agent or member of a limited-liability company.
(2)
The Common Council may itself conduct the hearing and take the evidence,
or the Common Council may designate any of its members or any officer
or employee of the City or the Department of Public Works to:
(a)
Issue in the name of the Common Council notices of hearings
requesting the attendance and testimony of witnesses and the production
of evidence relevant to any matter involved in such hearings.
(b)
Take the evidence.
(c)
Transmit a report of the evidence and hearing, including transcripts
and other evidence, together with recommendations to the Common Council
for action thereon.
(3)
At any hearing held pursuant to this section, testimony taken must
be under oath and recorded stenographically. The transcript, so recorded,
will be made available to any member of the public or any party to
the hearing upon payment of the usual charges thereof, unless the
user that is the subject of the hearing can prove that release of
the transcript is not required under one of the exceptions contained
in the New York Freedom of Information Law.
(4)
After the Common Council 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 on existing treatment facilities, devices
or other related appurtenances and are properly operated. Further
orders and directives as are necessary and appropriate may be issued.
D.
Compliance orders. When the Commissioner finds that a user has violated, or continues to violate, any provision of Chapter 389, an individual wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or pretreatment requirement, the Commissioner 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 pretreatment 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, including emergency actions.
E.
Cease-and-desist orders. When the Commissioner finds that a user has violated, or continues to violate, any provision of Chapter 389, an individual wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or pretreatment requirement, or that the user's past violations are likely to recur, the Commissioner 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, including emergency
actions.
F.
Penalties for offenses.
(1)
When the Commissioner finds that a user has violated, or continues to violate, any provision of Chapter 389, an individual wastewater discharge permit or order issued hereunder, or any other pretreatment standard or pretreatment requirement, the Commissioner may fine such user in an amount not to exceed $1,000 per day. Such fines shall be assessed on a per-violation, per-day basis. In the case of monthly or other long-term average discharge limits, fines shall be assessed for each day during the period of violation.
(2)
Unpaid charges, fines, and penalties shall, after 90 calendar days,
be assessed an additional penalty of 50% of the unpaid balance, and
interest shall accrue thereafter at a rate of 1.5% per month. The
City may place a lien against the user's property for unpaid
charges, fines, and penalties and/or may add the amounts for such
unpaid charges, fines and penalties to the user's City tax bill,
enforceable in accordance with the City's Charter.
(3)
Users desiring to dispute such fines must file a written request
for the Commissioner to reconsider the fine, and must submit full
payment of the fine amount, within 30 days of being notified of the
fine. Where a request has merit, the Commissioner may convene a hearing
on the matter. In the event the user's appeal is successful,
the payment or the relevant portion of the payment, together with
any interest accruing thereto, shall be returned to the user. The
Commissioner may add the costs of preparing administrative enforcement
actions, such as notices and orders, to the fine.
(4)
Issuance of an administrative fine shall not be a bar against, or
a prerequisite for, taking any other action against the user, including
emergency actions.
G.
Emergency suspension.
(1)
The Commissioner may immediately suspend a user's discharge, after informal notice to the user, whenever such suspension is necessary to stop an actual or threatened discharge, which reasonably appears to present or cause an imminent or substantial endangerment to the health or welfare of persons. The Commissioner may also immediately suspend a user's discharge, after informal notice to the user, that threatens to interfere with the operation of the POTW, or which presents, or may present, an endangerment to the environment. If possible and the situation permits, the user should be given an opportunity to respond to any notices issued by the Commissioner pursuant to this Subsection G(1).
(2)
Any user notified of a suspension of its discharge shall immediately stop or eliminate its contribution. In the event of a user's failure to immediately comply voluntarily with the suspension order, the Commissioner may take such steps as deemed necessary, including immediate severance of the sewer connection, to prevent or minimize damage to the POTW, its receiving stream, or endangerment to any individuals or the environment. The Commissioner may allow the user to recommence its discharge when the user has demonstrated to the satisfaction of the Commissioner that the period of endangerment has passed, unless the termination proceedings of Chapter 389 are initiated against the user.
(3)
A user that is responsible, in whole or in part, for any discharge presenting imminent endangerment shall submit a detailed written statement, describing the causes of the harmful contribution and the measures taken to prevent any future occurrence, to the Commissioner prior to the date of any show cause or termination hearing under Chapter 389.
(4)
Notwithstanding any inconsistent provisions of law or this chapter, whenever the Commissioner finds, after investigation, that any user is causing, engaging in or maintaining a condition or activity which, in the Commissioner's reasonable judgment, presents an imminent danger to the public health, safety or welfare or to the environment or is likely to result in irreversible or irreparable damage to the public sewers, the POTW and/or the environment, and it therefore appears to be prejudicial to the public interest to delay action until notice and an opportunity for a hearing can be provided, the Commissioner may, without prior hearing, order such user by notice, in writing wherever practicable or in such other reasonable form or format as can be conveyed to the user under the circumstances, to discontinue, abate or alleviate such condition or activity, and thereupon such user shall immediately discontinue, abate or alleviate such condition or activity; or where the giving of notice is impracticable, or in the event of a user's failure to comply voluntarily with an emergency order, the Commissioner may take all appropriate action to abate the violating condition. As promptly as possible thereafter, not to exceed 15 days, the Commissioner shall provide the user an opportunity to be heard in accordance with the provisions of this chapter 389.
(5)
The Commissioner, acting in accordance with this section upon the
belief that an emergency exists, shall be indemnified by the City
against any personal liability that may arise in the performance of
his duties to protect the public health, safety or welfare or preserve
the public sewer system, the POTW and/or the environment.
(6)
Nothing in this section shall be interpreted as requiring a hearing
prior to any emergency suspension or other action under this section.
H.
Termination of discharge.
(1)
In addition to the provisions in § 389-41, any user who violates the following conditions is subject to discharge termination:
(a)
Violation of individual wastewater discharge permit conditions;
(b)
Failure to accurately report the wastewater constituents and
characteristics of its discharge;
(c)
Failure to report significant changes in operations or wastewater
volume, constituents, and characteristics prior to discharge;
(d)
Refusal of reasonable access to the user's premises for
the purpose of inspection, monitoring, or sampling; or
(2)
Such user will be notified of the proposed termination of its discharge
and be offered an opportunity to show cause why the proposed action
should not be taken. Exercise of this option by the Commissioner shall
not be a bar to, or a prerequisite for, taking any other action against
the user, including emergency actions.
A.
Upset.
(1)
For the purposes of this section, "upset" means an exceptional incident
in which there is unintentional and temporary noncompliance with categorical
pretreatment standards because of factors beyond the reasonable control
of the user. An upset does not include noncompliance to the extent
caused by operational error, improperly designed treatment facilities,
inadequate treatment facilities, lack of preventive maintenance, or
careless or improper operation.
(2)
An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the requirements of Subsection A(3), below, are met.
(3)
A user who wishes to establish the affirmative defense of upset shall
demonstrate, through properly signed, contemporaneous operating logs,
or other relevant evidence that:
(a)
An upset occurred and the user can identify the cause(s) of
the upset;
(b)
The facility was at the time being operated in a prudent and
workmanlike manner and in compliance with applicable operation and
maintenance procedures; and
(c)
The user has submitted the following information to the Commissioner
within 24 hours of becoming aware of the upset (if this information
is provided orally, a written submission must be provided within five
days):
[1]
A description of the indirect discharge and cause of noncompliance;
[2]
The period of noncompliance, including exact dates and times
or, if not corrected, the anticipated time the noncompliance is expected
to continue; and
[3]
Steps being taken and/or planned to reduce, eliminate, and prevent
recurrence of the noncompliance.
(4)
In any enforcement proceeding, the user seeking to establish the
occurrence of an upset shall have the burden of proof.
(5)
Users shall have the opportunity for a judicial determination on
any claim of upset only in an enforcement action brought for noncompliance
with categorical pretreatment standards.
(6)
Users shall control production of all discharges to the extent necessary
to maintain compliance with categorical pretreatment standards upon
reduction, loss, or failure of its treatment facility until the facility
is restored or an alternative method of treatment is provided. This
requirement applies in the situation where, among other things, the
primary source of power of the treatment facility is reduced, lost,
or fails.
B.
Prohibited discharge standards.
(1)
User shall have an affirmative defense to an enforcement action brought
against it for noncompliance with the general prohibitions in this
chapter or the specific prohibitions in/of this chapter if it can
prove that it did not know, or have reason to know, that its discharge,
alone or in conjunction with discharges from other sources, would
cause pass-through or interference and that either:
(a)
A local limit exists for each pollutant discharged and the user
was in compliance with each local limit directly prior to, and during,
the pass-through or interference; or
(b)
No local limit exists, but the discharge did not change substantially
in nature or constituents from the user's prior discharge when
the City was regularly in compliance with its SPDES permit, and in
the case of interference, was in compliance with applicable sludge
use or disposal requirements.
C.
Bypass.
(1)
For the purposes of this section:
(a)
"Bypass" means the intentional diversion of waste streams from
any portion of a user's treatment facility.
(b)
"Severe property damage" means substantial physical damage to
property, damage to the treatment facilities which causes them to
become inoperable, or substantial and permanent loss of natural resources
which can reasonably be expected to occur in the absence of a bypass.
Severe property damage does not mean economic loss caused by delays
in production.
(3)
Bypass notifications.
(a)
If a user knows in advance of the need for a bypass, it shall
submit prior notice to the Commissioner, if possible at least 10 days
before the date of the bypass.
(b)
A user shall submit oral notice to the Commissioner of an unanticipated
bypass that exceeds applicable pretreatment standards or pretreatment
requirements within 24 hours from the time it becomes aware of the
bypass. A written submission shall also be provided within five days
of the time the user becomes aware of the bypass. The written submission
shall contain a description of the bypass and its cause; the duration
of the bypass, including exact dates and times, and, if the bypass
has not been corrected, the anticipated time it is expected to continue;
and steps taken or planned to reduce, eliminate, and prevent reoccurrence
of the bypass. The Commissioner may waive the written report on a
case-by-case basis if the oral report has been received within 24
hours.
(4)
Bypass.
(a)
Bypass is prohibited, and the Commissioner may take an enforcement
action against a user for a bypass, unless:
[1]
Bypass was unavoidable to prevent loss of life, personal injury,
or severe property damage;
[2]
There were no feasible alternatives to the bypass, such as the
use of auxiliary treatment facilities, retention of untreated wastes,
or maintenance during normal periods of equipment downtime. This condition
is not satisfied if adequate backup equipment should have been installed
in the exercise of reasonable engineering judgment to prevent a bypass
which occurred during normal periods of equipment downtime or preventive
maintenance; and
[3]
The user submitted notices as required in this section.
(b)
The Commissioner may approve an anticipated bypass, after considering
its adverse effects, if the Commissioner determines that it will meet
the three conditions listed in this section.
A.
The Corporation Counsel, on his own initiative or at the request
of the Commissioner, shall have the right to seek equitable relief
in the name of the City to restrain the violation of or to compel
compliance with any order or determination issued thereunder by the
Commissioner.
B.
Injunctive relief. When the Commissioner finds that a user has violated, or continues to violate, any provision of this chapter 389, an individual wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or pretreatment requirement, the Commissioner may petition the Supreme Court of Orange County, New York, or the Middletown City Court through the City's Corporation Counsel for the issuance of a temporary or permanent injunction, as appropriate, which restrains or compels the specific performance of the individual wastewater discharge permit, order, or other requirement imposed by this chapter 389 on activities of the user. The Commissioner may also seek such other action as is appropriate for legal and/or equitable relief, including a requirement for the user to conduct environmental remediation. A petition for injunctive relief shall not be a bar against, or a prerequisite for, taking any other action against a user, including emergency actions.
C.
Civil penalties.
(1)
In addition to the penalties provided in § 389-39F, a user who has violated, or continues to violate, any provision of this chapter 389, an individual wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or pretreatment requirement shall be liable to the City for a maximum civil penalty of $1,000 per violation, per day. 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.
(2)
The Commissioner 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.
(3)
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.
(4)
Filing a suit for civil penalties shall not be a bar against, or
a prerequisite for, taking any other action against a user, including
emergency actions.
D.
Criminal prosecution.
(1)
A user who willfully or recklessly violates any provision of this chapter 389, an individual wastewater discharge permit, or order issued hereunder, or any other pretreatment standard or pretreatment requirement shall, upon conviction, be guilty of a violation, punishable by a fine of not more than $1,000 per violation, per day, or imprisonment for not more than 15 days, or both. This penalty shall be in addition to any other criminal charges that may be filed against the user under the New York State Penal Law or applicable federal law.
(2)
A user who willfully or recklessly introduces any substance into
the POTW that causes personal injury or property damage shall, upon
conviction, be guilty of a violation and be subject to a penalty of
at least $1,000 per violation, per day, or be subject to imprisonment
for not more than 15 days, or both. This penalty shall be in addition
to any other cause of action for personal injury or property damage
available under state or federal law and in addition to any other
criminal charges that may be filed against the user under the New
York State Penal Law or applicable federal law.
(3)
A user who knowingly makes any false statements, representations, or certifications in any application, record, report, plan, or other documentation filed, or required to be maintained, pursuant to Chapter 389, individual wastewater discharge permit, or order issued hereunder, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required under Chapter 389 shall, upon conviction, be guilty of a violation and be subject to a fine of not more than $1,000 per violation, per day, or imprisonment for not more than 15 days, or both. This penalty shall be in addition to any other criminal charges that may be filed against the user under the New York State Penal Law or applicable federal law.
(4)
In the event of a second conviction, a user shall be subject to a
fine of not more than $2,500 per violation, per day, or imprisonment
for not more than 15 days, or both.
E.
Remedies nonexclusive. The remedies provided for in this chapter 389 are not exclusive. The Commissioner 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 Commissioner may take other action against any user when the circumstances warrant. Further, the Commissioner is empowered to take more than one enforcement action against any noncompliant user.
Any person violating any of the provisions of this chapter shall
become liable to the City for any expense, loss or damage occasioned
the City by reason of such violation.
All ordinances or laws or parts of ordinances or laws in conflict herewith or with any aspect of this chapter 389 are hereby repealed.
