A.
The Inspector shall prepare an enforcement response
plan. The enforcement response plan, in a step-by-step fashion, shall
outline the procedures to be followed to identify, document, and respond
to violations by users of the POTW. All violations by users of the
POTW may be subject to some type of enforcement response. The response
shall be comprehensive and effective.
B.
The enforcement response plan shall:
(1)
Describe how the Inspector will investigate instances
of noncompliance.
(2)
Describe the types of escalated enforcement actions
that the Inspector will take in response to all anticipated types
of user violations and the time periods within which to initiate and
follow-up these actions.
(3)
Adequately reflect the Town Board's responsibility
to enforce all applicable standards and requirements.
C.
The enforcement response plan shall contain:
(1)
Criteria for scheduling periodic inspection and/or
sampling visits to POTW users.
(2)
Forms and guidelines for documenting compliance data
in a manner which will enable the information to be used as evidence.
(3)
Systems to track due dates, compliance schedule milestones,
and pending enforcement actions.
(4)
Criteria, responsible personnel, and procedures to
select and initiate an enforcement action.
D.
The range of appropriate enforcement actions shall
be based on the nature and severity of the violation and other relevant
factors, such as, magnitude of the violation; duration of the violation;
effect of the violation on the receiving water; effect of the violation
on the POTW; effect of the violation on the health and safety of the
POTW employees; compliance history of the user; good faith of the
user; and shall promote consistent and timely use of enforcement remedies.
E.
The Town Board shall approve the enforcement response
plan. The enforcement response plan shall be reviewed at least every
five years.
F.
The enforcement response plan shall provide public
notification, in the daily newspaper selected by the Town Board, of
users which were in siginificant noncompliance of local or federal
pretreatment standards since the last such notice. The frequency of
such notices shall be at least once per year.
A.
Notification of violation. Whenever the Inspector
finds that any user has violated or is violating this chapter, or
any wastewater discharge permit, order, prohibition, limitation, or
requirement permitted by this chapter, the Inspector may serve upon
such person a written notice stating the nature of the violation.
Within 10 calendar days of the date the Inspector mails the notice,
an explanation of the violation and a plan for the satisfactory correction
and prevention thereof shall be submitted to the Inspector by the
user. The correction and prevention plan shall include specific actions.
Submission of this plan in no way relieves the user of liability for
any violations caused by the user before or after receipt of the notice
of violation.
B.
Consent orders. The Inspector is hereby empowered
to enter into consent orders, assurances of voluntary compliance,
or other similar documents establishing an agreement with the user
responsible for the noncompliance. Such orders shall include specific
action to be taken by the user to correct the noncompliance within
a time period also specified by the order. Consent orders shall have
the same force and effect as an administrative order.
C.
Administrative or compliance orders.
(1)
When the Inspector finds that user has violated or continues to violate this chapter or a permit or administrative order issued thereunder, he may issue by personal service or registered mail an administrative order to the user responsible for the discharge that orders one or more of the following: imposes a penalty pursuant to Subsection D; imposes a cease-and-desist order pursuant to Subsection E; or directing that, following a specified time period, sewer service shall be discontinued, severed and abated in accordance with Subsection F unless the violation is corrected and that there is no reoccurrence of the violation. Administrative orders may also contain such other requirements as might be reasonably necessary and appropriate to address the noncompliance, including the installation of pretreatment technology, additional self-monitoring, and management practices.
(2)
The user may, within 15 calendar days of receipt of such order, petition the Inspector to modify or suspend the order. Such petition shall be in written form and shall be transmitted to the Inspector by registered mail. Within 10 calendar days of receipt of the petition, the Inspector shall issue a written decision either rejecting any frivolous petitions, or modifying or suspending the order. Within 15 calendar days of receipt of the Inspector's decision, the user may seek a hearing pursuant to Subsection G hereof.
D.
Administrative fines. Notwithstanding any other section
of this chapter, any user who is found to have violated any provision
of this chapter, or a wastewater discharge permit or administrative
order issued hereunder, shall be fined in an amount not to exceed
$1,000 per violation. Each day on which noncompliance shall occur
or continue shall be deemed a separate and distinct violation.
E.
Cease-and-desist orders. When the Inspector finds
that a user has violated or continues to violate this chapter or any
permit or administrative order issued hereunder, the Inspector may
issue an administrative order to cease and desist all such violations
and direct those persons in noncompliance to:
F.
Termination of permit. Any user who violates the following
conditions of this chapter or a wastewater discharge permit or administrative
order, or any applicable state and federal law, is subject to permit
termination and/or discontinuance of sewer service:
(1)
Violation of permit conditions or conditions of an
administrative order;
(2)
Failure to accurately report the wastewater constituents
and characteristics of its discharge;
(3)
Failure to report significant changes in operations
or wastewater constituents and characteristics;
(4)
Refusal of reasonable access to the user's premises
for the purpose of inspection, monitoring, or sampling; or
(5)
Failure to pay administrative fines, fees or user
charges.
G.
Show-cause hearing.
(1)
Within 10 days after receipt of the request of hearing, the Inspector shall serve a notice on the user specifying the time and place of a hearing to be held by the Town Board regarding the violation, a summary of the reasons why the action is to be taken and a summary of the evidence in support of the violation. The notice of the hearing shall be served at least 10 calendar days before the hearing in accordance with this Subsection I of this section. Copies of such notice shall be provided to the property owner.
(2)
The Town Board may itself conduct the hearing, or
may designate any of its members or any officer or employee of the
Town to conduct the hearing who may then:
(a)
Issue, in the name of the Town Board, notices
of hearings compelling the attendance and testimony of witnesses,
and the production of evidence relevant to any matter involved in
such hearings;
(b)
Take the evidence;
(c)
Take sworn testimony;
(d)
Transmit a report of the evidence and hearing,
including transcripts and other evidence, together with recommendations
to the Town Board for action thereon.
(3)
After the Town Board has reviewed the evidence and
testimony, it may order the user to comply with the Inspector's order
or fine, modify the Inspector's order or fine, or vacate the Inspector's
order or fine.
H.
Failure of user to petition the inspector. In the
event the Inspector issues any administrative order, terminates the
user's permit, or makes any fine as set forth in this article, and
the user fails, within the designated period of time set forth, to
petition the Inspector, as provided in appropriate sections of this
article or to seek a hearing, the user shall be deemed in default
and its rights to contest the administrative order or fine shall be
deemed waived.
I.
Notice. The notices, orders, petitions, or other notification
which the user or Inspector shall desire or be required to give pursuant
to any sections of this chapter shall be in writing and shall be served
personally or sent by certified mail or registered mail, return receipt
requested, postage prepaid, and the notice, order, petition, or other
communication shall be deemed given upon its mailing as provided herein.
Any notice, administrative order, or communication mailed to the user
pursuant to the sections of this chapter shall be mailed to the user
where the user's effluent is discharged into transmission lines to
the municipal WWTP sewer system. Any notice, petition, or other communication
mailed to the Inspector shall be addressed and mailed to the Town
Hall of the Town.
J.
Right to choose multiple remedies. The Inspector shall
have the right to utilize any one or more appropriate administrative
remedies set forth in this article. The Inspector may utilize more
than one administrative remedy established pursuant to this article.
A hearing hereunder can combine more than one enforcement action.
A.
Civil actions for penalties.
(1)
In lieu of the administration enforcement action taken
by the Inspector and/or to enforce an administrative order, the Town
Attorney, upon approval by the Town Board, may commence a civil action
against a user who violates any of the provisions of or who fails
to perform any duty imposed by this chapter, or any administrative
order or determination of the Inspector issued under this chapter
or the terms of any permit issued hereunder. In such action, such
person shall be liable to the Town for a civil penalty not to exceed
$1,000 for each such violation, to be assessed after a hearing. Each
violation shall be separate and distinct, and in the case of a continuing
violation, each day's continuance thereof shall be deemed a separate
and distinct violation. Such penalty may be recovered in an action
brought by the Town Attorney, in any court of competent jurisdiction
giving preference to courts local to the Town. In addition to the
above-described penalty, the Town may recover all damages incurred
by the Town from any persons or users who violate any provisions of
this chapter, or who fail to perform any duties imposed by this chapter
or any administrative order or determination of the Inspector issued
under this chapter, or the terms of any permit issued hereunder. In
addition to the above-described damages, the Town may recover all
reasonable attorney's fees incurred by the Town in enforcing the provisions
of this article, including reasonable attorney's fees incurred in
any action to recover penalties and damages, and the Town may also
recover court costs, and other expenses associated with the enforcement
activities, including sampling and monitoring expenses.
(2)
In determining the amount of civil penalty, the court
shall take into account all relative circumstances, including, but
not limited to the extent of harm caused by the violation, the magnitude
and duration, any economic benefit gained through the user's violation,
corrective actions by the user, the compliance history of the user,
and any other relative factors as justice may require.
(3)
Such civil penalty may be released or compromised
by the Inspector before the matter has been referred to the Town Attorney,
and where such matter has been referred to the Town Attorney, any
such penalty may be released or compromised and any action commenced
to recover the same may be settled and discontinued by the Town Attorney,
with the consent of the Town Board.
B.
C.
Criminal penalties.
(1)
Any person who willfully violates any provision of
this chapter or any final determination or administrative order of
the Inspector made in accordance with this article shall be guilty
of a Class A misdemeanor, and upon conviction thereof, shall be punished
by a fine of not less than $500 nor more than $1,000, or imprisonment
not to exceed one year, or both. Each offense shall be a separate
and distinct offense, and, in the case of a continuing offense, each
day's continuance thereof shall be deemed a separate and distinct
offense.
(2)
Any user who knowingly makes any false statements,
representations, or certifications in any application, record, report,
plan or other document filed or required to be maintained pursuant
to this chapter, or wastewater permit, or who falsifies, tampers with,
or knowingly renders inaccurate any monitoring device or method required
under this chapter shall be guilty of a Class A misdemeanor and, upon
conviction, shall be punished by a fine of not more than $1,000 per
violation per day or imprisonment for not more than one year, or both.
(3)
No prosecution under this section shall be instituted
until authorized by the Town Board, by resolution.
D.
Injunctive relief. Whenever a user has violated or
continues to violate the provisions of this chapter or permit or order
issued hereunder, the Town Attorney, as authorized by the Town Board,
may petition a court of competent jurisdiction, in the name of the
Town, for the issuance of a preliminary or permanent injunction or
both (as may be appropriate) which restrains the violation of or compels
the compliance with any order or determination thereunder by the Inspector.
E.
Summary abatement.
(1)
Notwithstanding any inconsistent provisions of this chapter, whenever the Inspector finds, after investigation, that any user is causing, engaging in, or maintaining a condition or activity which, in the judgment of the Inspector, presents an imminent danger to the public health, safety, or welfare, or to the environment, or is likely to result in severe damage to the municipal WWTP sewer system, or the environment, and it therefore appears to be prejudicial to the public interest to allow the condition or activity to go unabated until notice and an opportunity for a hearing can be provided, the Inspector may, without prior hearing, order such user by notice, in writing wherever practicable or in such other form as practices are intended to be proscribed, to discontinue, abate, or alleviate such condition or activity, and thereupon such person shall immediately discontinue, abate, or alleviate such condition or activity. As promptly as possible thereafter, not to exceed 15 calendar days, the Inspector shall provide the user an opportunity for a hearing before the Town Board in accordance with § 103-69G.
(2)
If the user is not within the geographic boundaries
of the Town, the right of summary abatement to discontinue, abate,
or alleviate conditions or activities shall be those prescribed in
the intermunicipal agreement or Town-user agreement.
(3)
The Inspector, acting upon the belief that an emergency
exists, shall be indemnified by the Town against any personal liability
that may arise in the performance of his duties to protect the public
health, safety, or welfare, or to preserve the municipal WWTP sewer
system or the environment.
A.
If there shall be any fines, penalties, or other charges due to a violation of this chapter, which are due to the Town or sewer district pursuant to any article or section of this chapter, other than pursuant to Article XIII, which shall remain due and unpaid, in whole or in part, for a period of 20 calendar days from the date of billing by the Town, the same shall constitute a default and interest shall accrue on the unpaid balance at the rate of 2% per month, retroactive to the date of the original billing.
B.
In the event that there are any sewer taxes, assessments,
or other service charges which shall have been delinquent for a period
of at least 60 calendar days as of November 1 of any year, the Inspector
shall report the names of the defaulting persons to the Town Supervisor,
the Town Clerk, the Town Chief Assessor, and the Town Treasurer on
or before November 1 of the same year. The Town Chief Assessor is
hereby directed to add the entire amount of the sewer tax, assessment,
or other service charge which shall be in default, plus penalty and
interest, as provided for in this chapter, to the real property taxes
due and owing to the Town in the next succeeding year, and the Town
Chief Assessor is directed to collect the same in the same manner
as real property taxes due and owing to the Town are collected.
C.
Where charges are delinquent and the violator is not
a resident of the Town, or is located outside the geographical boundaries
of the Town, then the Town Attorney is authorized to seek recovery
of charges, including punitive damages, in a court of competent jurisdiction
or make arrangements with the appropriate county where the user is
located to add the amount of the sewer assessment or other charges
which shall be in default, plus penalty and interest, as provided
for in the chapter, to the real property taxes due to the county in
the next ensuing year.
The Inspector may decline to reissue a permit
to any user which has failed to comply with the provisions of this
chapter or any order or previous permit issued hereunder or may require
as a condition of reissuance such user to first file with the Town
a satisfactory bond, payable to the Shandaken WWTP sewer system, in
a sum not to exceed a value determined by the Inspector to be necessary
to achieve consistent compliance.
The Inspector may decline to reissue a permit
to any user which has failed to comply with the provisions of this
chapter or any order or previous permit issued hereunder, unless the
user first submits proof that it has obtained financial assurances
sufficient to restore or repair damage to the municipal WWTP sewer
system caused by its discharge.
