Note: This article is under review by NYSDEC and may be revised
following review. The municipal attorney or officer responsible for
drafting the Town of Wilna Sewer Use Law should carefully review the
provisions in this article of the model and make any suitable adjustments
to maintain consistency with local and state law.
A.
The Superintendent 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
shall be met with some type of enforcement response. The response
shall be comprehensive and effective.
B.
The enforcement response plan shall:
(1)
Describe how the Superintendent will investigate instances of noncompliance.
(2)
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)
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.
A.
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.
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.
Administrative or compliance orders.
(1)
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 pre-treatment technology, additional
self-monitoring, and management practices.
(2)
The user may, within 15 calender days of receipt of such order, petition
the Town Board to modify or suspend the order. Such petition shall
be in written form and shall be transmitted to the Town Board by registered
mail. The Town Board shall then:
D.
Administrative fines.
(1)
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 less than $250 and 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)
The user may, within 15 calendar days of notification of the Superintendent's
notice of such fine, petition the Town Board to modify or suspend
the order. Such petition shall be in written form and shall be transmitted
to the Town Board by registered mail. The Town Board shall then:
E.
Cease and desist orders.
(1)
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)
The user may, within 15 calendar days of the date the Superintendent
mails notification of such order, petition the Town Board to modify
or suspend the order. Such petition shall be in written form and shall
be transmitted to the Town Board by registered mail. The Town Board
shall then:
F.
Termination of permit.
(1)
Any user who violates the following conditions of this chapter or
a wastewater discharge permit or administrative order, or any applicable
or state and federal law, is subject to permit termination:
(a)
Violation of permit conditions or conditions of an administrative
order;
(b)
Failure to accurately report the wastewater constituents and
characteristics of its discharge;
(c)
Failure to report significant changes in operations or wastewater
constituents and characteristics;
(d)
Refusal of reasonable access to the user's premises for
the purpose of inspection, monitoring, or sampling; or
(e)
Failure to pay administrative fines, fees or user charges.
(2)
Noncompliant industrial users will be notified, by registered mail,
of the proposed termination of their wastewater permit.
(3)
The user may, within 15 calendar days of the date the Superintendent
mails such notification, petition the Town Board to permit continued
use of the POTW by the user. Such petition shall be in written form
and shall be transmitted to the Town Board by registered mail. The
Town Board shall then:
G.
Water supply severance.
(1)
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)
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.
Show cause hearing.
(1)
The Superintendent may order any user appealing administrative remedies for violations of this chapter to show cause, before the Town Board, 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 Town Board 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 Town Board 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 174-89J 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 § 174-89J.
(2)
The Town Board may itself conduct the hearing, or may designate any
of its members or any officer or employee of the Town of Wilna to
conduct the hearing:
(a)
Issue, in the name of the Town Board, 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)
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 Superintendent's order
or fine, modify the Superintendent's order or fine, or vacate
the Superintendent's order or fine.
I.
Failure of user to petition the Town of Wilna Town Board. 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 Town Board, 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.
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 Town's POTW. Any notice, petition, or other communication
mailed to the Superintendent shall be addressed and mailed to the
Town Office.
K.
Right to choose multiple remedies. The Superintendent shall have
the right, at the Town Board'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.
Civil actions for penalties.
(1)
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
Town of Wilna for a civil penalty not less than $250 and 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 a separate and distinct
violation. Such penalty may be recovered in an action brought by the
Town Attorney, or his designated attorney, at the request of the Superintendent
in the name of the Town of Wilna, in any court of competent jurisdiction
giving preference to courts local to the Town of Wilna. In addition
to the above described penalty, the Superintendent may recover all
damages incurred by the Town of Wilna 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 Wilna in enforcing the provisions of
this article, including reasonable attorney's fees incurred in
any action to recover 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)
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 Superintendent
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 Superintendent.
B.
Court orders.
(1)
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)
Any such court order shall be sought in an action brought by the
Town Attorney, at the request of the Superintendent, in the name of
the Town of Wilna in any court of competent jurisdiction giving precedence
to courts local to the Town of Wilna.
(3)
The Town 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.
Criminal penalties.
(1)
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)
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 after
final disposition of a show cause hearing, if any, was instituted.
D.
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, 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.
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
judgement of the Superintendent or the Town Board, 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.
If the user is not within the geographic boundaries of the Town of
Wilna Sewer District the right of summary abatement to discontinue,
abate, or alleviate conditions or activities shall be those prescribed
in the intermunicipal agreement.
C.
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.
A.
If there shall be any payments which are due to the Town of Wilna,
or any department thereof, pursuant to any article or section of this
chapter, 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
of Wilna, the same shall constitute a default, and there shall be
added to the entire amount of the original bill, a penalty equal to
20% of the original bill, 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 April 1 of any year, the chief fiscal
officer shall report the names of the defaulting persons to the Town
Board, the Assessor, and the Jefferson County Real Property Tax Office
on or before April 1 of the same year. The Town 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 Town of Wilna in the next succeeding year, and the Town's
chief fiscal officer is directed to collect the same in the same manner
as real property taxes due and owing to the Town of Wilna are collected.
C.
Where charges are delinquent and the violator is not a resident of
the Town of Wilna, or is located outside the geographical boundaries
of the Town of Wilna, 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 law, to the real property taxes due to the County in the
next ensuing year.
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 Town Board to be necessary to
achieve consistent compliance.
The Town Board 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 Town Board 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 Clerk-Treasurer, upon approval
of the Town Board, is authorized to disperse 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 chief fiscal officer shall provide public notification,
in the daily newspaper with the largest circulation in the Town of
Wilna, of users which were in significant noncompliance of local or
federal pre-treatment standards or requirements since the last such
notice. The frequency of such notices shall be as occurring.
A.
Users which have not achieved consistent compliance with applicable
pre-treatment standards and requirements are not eligible to receive
a contractual award for the sale of goods or services to the Town
of Wilna.
B.
Existing contracts for the sale of goods or services to the Town
of Wilna held by a user found to be in significant violation with
pre-treatment standards may be terminated at the discretion of the
Town Board.