A.Â
The District 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, documents, and respond to violations by
users of the POTW. All violations by users of the POTW shall be met
with some type of enforcement response. The response shall be comprehensive
and effective.
B.Â
The enforcement response plan shall:
(1)Â
Describe how the Superintendent will investigate instances of noncompliance.
(2)Â
Describe the types of escalated enforcement actions that the Superintendent
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)Â
Adequately reflect the District's responsibility to enforce all applicable
standards and requirements.
C.Â
The enforcement response plan shall contain:
(1)Â
Criteria for scheduling periodic inspection and/or sampling visits
to POTW users.
(2)Â
Forms and guidelines for documenting compliance data in a manner
which will enable the information to be used as evidence.
(3)Â
Systems to track due dates, compliance schedule milestones, and pending
enforcement actions.
(4)Â
Criteria, responsible personnel, and procedures to select and initiate
an enforcement action.
D.Â
The range of appropriate enforcement actions shall be based on the
nature and severity of the violation and other relevant factors, such
as the following, and shall promote consistent and timely use of enforcement
remedies.
(1)Â
Magnitude of the violation.
(2)Â
Duration of the violation.
(3)Â
Effect of the violation on the receiving water.
(4)Â
Effect of the violation on the POTW.
(5)Â
Effect of the violation on the health and safety of the POTW employees.
(6)Â
Compliance history of the user.
(7)Â
Good faith of the user.
E.Â
The District shall approve the enforcement response plan. The enforcement
response plan shall be reviewed at least every five years.
A.Â
Notification of violation. Whenever the Superintendent 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 Superintendent may serve upon such person a written
notice stating the nature of the violation. Within 10 calendar days
of the date the Superintendent mails the notice, an explanation of
the violation and a plan for the satisfactory correction and prevention
thereof shall be submitted to the Superintendent, 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.Â
Consent orders. The Superintendent 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.Â
Administrative or compliance orders.
(1)Â
When the Superintendent finds that a user has violated or continues
to violate this chapter or a permit or administrative order issued
thereunder, he may issue an administrative order to the user responsible
for the discharge directing that, following a specified time period,
sewer service shall be discontinued, severed and abated 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)Â
The user may, within 15 calendar days of receipt of such order, petition
the Superintendent to modify or suspend the order. Such petition shall
be written form and shall be transmitted to the Superintendent by
registered mail. The Superintendent shall then:
D.Â
Administrative fines.
(1)Â
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.
(2)Â
The user may, within 15 calendar days of notification of the Superintendent's
notice of such fine, petition the Superintendent to modify or suspend
the order. Such petition shall be in written form and shall be transmitted
to the Superintendent by registered mail. The Superintendent shall
then:
E.Â
Cease and desist orders.
(1)Â
When the Superintendent finds that a user has violated or continues
to violate this chapter or any permit or administrative order issued
hereunder, the Superintendent may issue an administrative order to
cease and desist all such violations and direct those persons in noncompliance
to:
(2)Â
The user may, within 15 calendar days of the date the Superintendent
mails notification of such order, petition the Superintendent to modify
or suspend the order. Such petition shall be in written form and shall
be transmitted to the Superintendent by registered mail. The Superintendent
shall then:
F.Â
Termination of permit.
(1)Â
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:
(a)Â
Violation of permit conditions.
(b)Â
Failure to accurately report the wastewater constituents and
characteristics of its discharge.
(c)Â
Failure to report significant changes in operations or wastewater
constituents and characteristics.
(d)Â
Refusal of reasonable access to the user's premises for the
purpose of inspection, monitoring, or sampling.
(2)Â
Noncompliant industrial users will be notified, by registered mail,
of the proposed termination of their wastewater permit.
(3)Â
The user may, within 15 calendar days of the date the Superintendent
mails such notification, petition the Superintendent to permit continued
use of the POTW by the user. Such petition shall be in written form
and shall be transmitted to the Superintendent by registered mail.
The Superintendent shall then:
G.Â
Water supply severance.
(1)Â
Whenever a user has violated or continues to violate the provisions
of this chapter or an order or permit issued hereunder, water service
to the user may be severed and service will only recommence, at the
user's expense, after it has satisfactorily demonstrated its ability
to comply.
(2)Â
The user may, within 15 calendar days of severance, petition the
Superintendent to reconnect water supply service. Such petition shall
be in written form and shall be transmitted to the Superintendent
by registered mail. The Superintendent shall then:
H.Â
Show cause hearing.
(1)Â
The Superintendent may order any user appealing administrative remedies for violations of this chapter to show cause, before the District, why an enforcement action, initiated by the Superintendent, should not be taken. A notice shall be served on the user specifying the time and place of a hearing to be held by the District regarding the violation, the reasons why the action is to be taken, the proposed enforcement action, and directing the user to show cause before the District why the proposed enforcement action should not be taken. The notice of the hearing shall be served at least 10 calendar days before the hearing in accordance with § 382-88J of this article. Service shall be made on any principal or executive officer of a user's establishment or to any partner in a user's establishment. The notice of the hearing shall be served at least 10 calendar days before the hearing, in accordance with § 382-88J.
(2)Â
The District may itself conduct the hearing, or may designate any
of its members or any officer or employee of the District to conduct
the hearing:
(a)Â
Issue, in the name of the District, notices of hearings requesting
the attendance and testimony of witnesses, and the production of evidence
relevant to any matter involved in such hearings;
(b)Â
Take the evidence;
(c)Â
Take sworn testimony;
(d)Â
Transmit a report of the evidence and hearing, including transcripts
and other evidence, together with recommendations to the District
for action thereon.
(3)Â
After the District has reviewed the evidence and testimony, it may
order the user to comply with the Superintendent's order or fine,
modify the Superintendent's order or fine, or vacate the Superintendent's
order or fine.
I.Â
Failure of user to petition the Superintendent. In the event the
Superintendent 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 Superintendent, as provided in appropriate sections of this article,
the user shall be deemed in default and its rights to contest the
administrative order or fine shall be deemed waived.
J.Â
Notice. The notices, orders, petitions, or other notification which
the user or Superintendent 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 District's POTW. Any notice, petition, or other communication
mailed to the Superintendent shall be addressed and mailed to the
Town of Webb Municipal Office, 3140 State Route 28, Old Forge, New
York 13420.
K.Â
Right to choose multiple remedies. The Superintendent shall have
the right, within the Superintendent's sole discretion, to utilize
any one or more appropriate administrative remedies set forth in this
article. The Superintendent may utilize more than one administrative
remedy established pursuant to this article, and the Superintendent
may hold one show cause hearing combining more than one enforcement
action.
A.Â
Civil actions for penalties.
(1)Â
Any person 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 Superintendent promulgated under this chapter,
or the terms of any permit issued hereunder, shall be liable to the
Old Forge Sewer District for a civil penalty not to exceed $1,000
for each such violation, to be assessed after a hearing (unless the
user waives the right to a hearing) held in conformance with the procedures
set forth in this article. Each violation shall be separate and distinct
violation, and in the case of continuing violation, each day's continuance
thereof shall be deemed separate and distinct violation. Such penalty
may be recovered in an action brought by the Town of Webb Attorney,
or his designated attorney, at the request of the Superintendent in
the name of the District, in any court of competent jurisdiction giving
preference to courts local to the Town of Webb. In addition to the
above-described penalty, the Superintendent may recover all damages
incurred by the District 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
Superintendent promulgated under this chapter, or the terms of any
permit issued hereunder. In addition to the above-described damages,
the Superintendent may recover all reasonable attorney's fees incurred
by the Town of Webb and/or the Old Forge Sewer District in enforcing
the provisions of this article, including penalties and damages, and
the Superintendent may also recover court costs, and other expenses
associated with the enforcement activities, including sampling and
monitoring expenses.
(2)Â
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)Â
Such civil penalty may be released or compromised by the Superintendent
before the matter has been referred to the Town of Webb attorney,
and where such matter has been referred to the Town of Webb 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 of
Webb attorney, with the consent of the Superintendent.
B.Â
Court orders.
(1)Â
In addition to the power to assess penalties as set forth in this
article, the Superintendent shall have the power, following the hearing
held in conformance with the procedures set forth in this article,
to seek an order:
(2)Â
Any such court order shall be sought in an action brought by the
Town of Webb attorney, at the request of the Superintendent, in the
name of the Town of Webb and/or the Old Forge Sewer District in any
court of competent jurisdiction giving precedence to courts local
to the Town of Webb.
(3)Â
The Town of Webb attorney, at the request of the Superintendent shall
petition the Court to impose, assess, and recover such sums imposed
according to this article. In determining amount of 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, 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.
C.Â
Criminal penalties.
(1)Â
Any person who willfully violates any provision of this chapter or
any final determination or administrative order of the Superintendent
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)Â
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)Â
No prosecution, under this section, shall be instituted until after
final disposition of a show cause hearing, if any, was instituted.
D.Â
Additional injunctive relief. Whenever a user has violated or continues
to violate the provisions of this chapter or permit or order issued
hereunder, the Superintendent, through counsel, may petition the Court,
in the name of the Town of Webb and/or the Old Forge Sewer District,
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 Superintendent.
A.Â
Notwithstanding any inconsistent provisions of this chapter, whenever
the Superintendent finds, after investigation, that any user is causing,
engaging in, or maintaining a condition or activity which, in the
judgment of the Superintendent, 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 POTW 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 Superintendent 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; 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 Superintendent may take all appropriate action
to abate the violating condition. As promptly as possible thereafter,
not to exceed 15 calendar days, the Superintendent shall provide the
user an opportunity to be heard, in accordance with the provisions
of this article.
B.Â
The Superintendent, acting upon the belief that an emergency exists,
shall be indemnified 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 POTW or the environment.
The Superintendent 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 such user first
files with it a satisfactory bond, payable to the POTW, in a sum not
to exceed a value determined by the Superintendent to be necessary
to achieve consistent compliance.
The Superintendent 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 POTW damage caused by its discharge.
The Superintendent is authorized to pay up to $500 for information
leading to the discovery of noncompliance by a user. In the event
that the information provided results in an administrative fine or
civil penalty levied against the user, the Superintendent is authorized
to disburse up to 10% of the collected fine or penalty to the informant.
However, a single reward payment may not exceed $10,000, including
the discovery reward.
The Superintendent shall provide public notification in the
official newspaper of the Town of Webb of the users which were in
significant noncompliance of local or federal pretreatment standards
or requirements since the last such notice. The frequency of such
notices shall be at least once per year. The Superintendent may provide
public notification also in any other daily newspaper with the largest
circulation within the Town of Webb.
A.Â
Users which have not achieved consistent compliance with applicable
pretreatment standards and requirements are not eligible to receive
a contractual award for the sale of goods or services to the Town
of Webb.
B.Â
Existing contracts for the sale of goods or services to the Town
of Webb held by a user found to be in significant violation with pretreatment
standards may be terminated at the discretion of the Town of Webb
Town Board.