[Ord. No. 2009-232, 12/17/2009]
When the general manager finds that a user has violated, or
continues to violate, a provision of this Part, an individual wastewater
discharge permit or general permit or order issued hereunder, or any
other pretreatment standard or requirement, the general manager may
petition the Court of Common Pleas of Westmoreland County through
THTMA's Attorney for the issuance of a temporary or permanent
injunction, as appropriate, which restrains or compels the specific
performance of the individual wastewater discharge permit, the general
permit, order, or other requirement imposed by this Part on activities
of the user. The general manager 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.
[Ord. No. 2009-232, 12/17/2009]
Any user who is found to have violated the provision, requirements,
or pretreatment standards of this Part, the rules and regulations
of the Pennsylvania Department of Environmental Protection or the
Environmental Protection Agency, an order, rule, regulation, or permit
of THTMA or New Stanton, whether or not the violation is willful or
negligent, may be assessed a civil penalty in an amount not to exceed
$25,000 per day nor less than $1,000 per day for each violation. Each
violation for each separate day shall constitute a separate and distinct
offense. The Hempfield Township Municipal Authority or New Stanton
may recover its costs for reestablishing the operation of the POTW,
in addition to any civil penalty imposed hereunder. In addition, THTMA
or New Stanton may recover attorneys' fees, all court costs,
and all other expenses of litigation to the extent permitted by law.
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. Filing
a suit for civil penalties shall not be a bar against, or a prerequisite
for, taking any other action against a user.
[Ord. No. 2009-232, 12/17/2009]
1.
A user who willfully or negligently violates any provision of this
Part, an individual wastewater discharge permit, or a general permit,
or order issued hereunder, or any other pretreatment standard or requirement
shall, upon conviction, be guilty of a summary offense, punishable
by a fine of not less than $100 per day per violation nor more than
$1,000 per violation per day, or imprisonment of not more than 30
days, or both. This section shall not preclude prosecution under the
Pennsylvania Crimes Code.[1]
[1]
Editor's Note: See 18 Pa.C.S.A. § 101 et seq.
2.
A user who willfully or negligently introduces any substance into
the POTW which causes personal injury or property damage shall, upon
conviction, be guilty of a summary offense, punishable by a fine of
not less than $100 per day per violation nor more than $1,000 per
violation per day, or imprisonment for not more than 30 days, or both.
This penalty shall be in addition to any other cause of action for
personal injury or property damage available under state law. This
section shall not preclude prosecution under the Pennsylvania Crimes
Code.
3.
Any person who knowingly makes any false statements, representation
or certification in any application, record, report, plan or other
document filed or required to be maintained pursuant to this Part,
or pretreatment permit, or who falsifies, tampers with, or knowingly
renders inaccurate any monitoring device or method required under
this Part shall, upon conviction, be guilty of a summary offense,
punishable by a fine of not less than $100 per day per violation nor
more than $1,000 per violation per day, or by imprisonment for not
more than 30 days, or by both. Each occurrence shall be a separate
offense. This section shall not preclude prosecution under the Pennsylvania
Crimes Code.
[Ord. No. 2009-232, 12/17/2009]
The remedies provided for in this Part are not exclusive. The
general manager may take any, all, or a combination of these actions
against a noncompliant user. Enforcement of pretreatment violations
will generally be in accordance with THTMA's enforcement response
plan. However, the general manager may take other action against any
user when the circumstances warrant. Further, the general manager
is empowered to take more than one enforcement action against any
noncompliant user.
[Ord. No. 2009-232, 12/17/2009]
1.
This section constitutes the Civil Penalty Assessment Policy required
by the Publicly Owned Treatment Works Penalty Law (herein "Penalty
Law") Act No. 9 of 1992, 35 P.S. § 752.1 et seq. When making
determinations of the level of enforcement, New Stanton, New Stanton
Sewage Authority and/or THTMA shall take into consideration the following:
A.
Damage to air, water, land, or other natural resources and their
uses;
B.
Costs of restoration and abatement;
C.
Savings to the user as a result of the violation;
D.
History of past violations;
E.
Deterrence of future violations; and
F.
Other relevant factors as determined by New Stanton and/or THTMA.
2.
A user must usually spend money to comply with pretreatment standards
and requirements. The user makes initial capital expenditures for
pretreatment, equipment, or process changes and incurs subsequent
operation, maintenance, and repair costs annually. By delaying or
avoiding these costs, the user realizes an economic advantage or benefit
over a competitor which complied with pretreatment requirements in
a timely manner. Thus the "economic benefit" of noncompliance is defined
as the difference between the cost of on-time compliance and delayed
compliance. Economic benefits realized by the user which fails to
comply by a required deadline can be measured by:
A.
The money that the user would expect to earn by delaying the purchase
of pretreatment equipment or implementation of process changes and
investing the money in more profitable projects.
B.
The annual costs that the user avoids, and the expected return on
avoided costs, during the period of noncompliance.
C.
Any competitive advantage the user may gain, such as increased market
share over competitors already in compliance, because of cost advantages
attributed to delayed compliance.
3.
In this Part, the economic benefit calculation is focused on the
first two benefits. The Guidance Manual for POTWs to Calculate the
Economic Benefit of Noncompliance, U.S. Environmental Protection Agency,
September 5, 1990, may be applied in calculating the penalty.
4.
Consideration of the gravity and length of a violation is important
when determining the penalty amount. Removing the economic benefit
or noncompliance only places the violating user in the position it
would have been had it complied on time. Both deterrence and fundamental
fairness require that the civil penalty include an additional amount
to ensure that noncompliance is more costly than compliance, and Hempfield
Township and/or THTMA's policy will be to include such an amount.
5.
Recovering for Damages to Public Facilities and/or Natural Resources.
A.
Failure to comply with pretreatment standards and requirements may
cause damage to the collection system of New Stanton and/or THTMA.
Damage may also be caused to the natural environment. Therefore, an
additional purpose of penalties in pretreatment enforcement shall
be to recover for such damages. Specifically, New Stanton and/or THTMA
may determine to require that a violating user pay reparations for
any damage caused to the collection system by improper disposal of
pollutants. Such a user may also be required to pay for replacement
of equipment, facilities, and/or other damaged processes at the POTW
caused by pollutant interference.
B.
Pollutants which pass through or interfere with POTW process may
cause damage to natural systems in receiving waters. In addition to
assessing penalties to recover for such damages, New Stanton and/or
THTMA may consider requiring mitigation and remediation programs.
C.
New Stanton and/or THTMA will consider assessing high penalties for
violations resulting in actual or potential harm to the environment.
Such potential environmental harm occurs whenever a user discharges
a pollutant into the sewer system that:
6.
Cost of Restoration and Abatement. Some violations may be negative
impacts on the POTW itself. For example, such violations may result
in significant increases in treatment costs, interference, harm POTW
personnel, equipment, processes, or operations, or cause sludge contamination,
resulting in increased disposal costs. When a user's noncompliance
harms New Stanton or THTMA, will assess a larger penalty.
7.
Savings to the User as a Result of Violation. A user which fails
to comply with pretreatment standards and requirements in a timely
manner may accrue a significant economic benefit. A penalty assessed
against the violator will be fixed at a level to at least negate this
economic benefit and make it unprofitable for the user to ignore or
violate pretreatment requirements. These requirements include installation
of pretreatment equipment, one-time expenditures (e.g., land), and
operation and maintenance (O&M) or other annual costs. The economic
benefit calculation described in this Part will be applied to any
or all types of pollution control costs.
8.
History of Past Violation.
A.
New Stanton or THTMA will consider each violation in assessing the
significance of user noncompliance. Violations of average effluent
limitations will be considered a violation for each day of the averaging
period. Therefore, a monthly average violation will be counted as
30 days of violation, and weekly average violation as seven days of
violation, and a four-day average should be counted as four violations.
Violations of different parameters at the same discharge point or
outfall are counted separately. The amount of the penalty will be
increased as the number of violations increases. However, as provided
in the Penalty Law, a single operational upset shall only be considered
as one violation, even through it may result in simultaneous violations
of more than one pretreatment standard.
B.
New Stanton or THTMA shall consider increasing penalty amounts for
continuing, long-term violations. Generally, a long-term violation
is one that continues for three or more consecutive months. In addition,
penalties will be higher for violations that have continued for three
years than for violations that have only occurred for six months.
C.
Significant noneffluent violations will be considered in assessing
penalties. Violations included in this category include failure to
report, late reporting, schedule violations, failure to implement
an approved pretreatment program, laboratory analysis deficiencies,
unauthorized discharge, operation and maintenance (O&M) deficiencies,
and sludge-handling violations.
D.
New Stanton or THTMA will consider increasing the penalty amount
when the violating user appears to be acting in bad faith (e.g., by
not cooperating with New Stanton or THTMA in effecting a timely correction
of the violation); when the user experiences unjustified delays in
preventing, correcting, or mitigating violation; when the user has
already violated prior administrative orders, compliance agreement,
or consent decrees; or when the user fails to provide timely and full
information. This recalcitrance factor also may be increased during
negotiation if the user continues to resist efforts to settle.
E.
When a user demonstrates that it is unable to pay a settlement penalty,
New Stanton or THTMA will independently evaluate the user's ability
to pay. When it is determined that the user cannot afford to pay the
penalty or that payment of all or part of the penalty will preclude
the violator from achieving compliance, New Stanton or THTMA may consider
other options. For example, New Stanton or THTMA may consider an installment
payment plan with the user paying interest. Only as a last recourse
New Stanton or THTMA may consider reducing the penalty amount. If
the user's behavior has been exceptionally culpable, recalcitrant,
or threatening to human health and the environment, inability to pay
will be disregarded.
9.
Deterrence of Future Violations.
A.
A user shall install the appropriate pollution control equipment
to comply with applicable pretreatment regulations, maintaining compliance
required, continuing O&M and other annual expenditures. For users
which fail to comply with pretreatment requirements, New Stanton or
THTMA will set its penalties at a level to remove, at a minimum, the
economic benefit from avoided annual costs during its period of violations.
New Stanton or THTMA hereby determines that assessing a penalty which,
at a minimum, eliminates the economic benefit of noncompliance (or
makes noncompliance more expensive than compliance) will encourage
users to remain in compliance.
B.
The intent of these penalties is to deter noncompliance so that pollutant
discharges by a user do not have significant negative impacts of the
POTW, collection system, or receiving waters. New Stanton or THTMA's
policy will be not to assess a penalty that is too small (e.g., less
than the economic benefit of noncomplying), so that the violating
user and other users may determine that noncompliance is more expensive
than compliance.
C.
The EPA or DEP can take enforcement action against a user violating
the Clean Water Act,[1] including federal pretreatment standards and regulations.
Citizens or citizen groups can also bring civil suits against a user
for violating environmental regulations. If the violating user has
been sued by the EPA, state regulatory agency, or citizens or citizen
groups, and penalties were imposed upon the user from these actions,
New Stanton or THTMA may consider reducing the penalty by an amount
equal to that which the user already paid for the same violation.
[1]
Editor's Note: See 33 U.S.C. § 1251 et seq.
[Ord. No. 2009-232, 12/17/2009]
1.
In order to treat all users fairly and equitably, New Stanton or
THTMA will use its best efforts to assess penalties using a consistent
methodology. Thus, it will avoid allowing one user to realize an economic
benefit from noncompliance which would potentially enable it to gain
an economic benefit; New Stanton or THTMA will strive to eliminate
or remove any financial advantage the violator gains.
2.
By exercising a consistent penalty methodology, New Stanton or THTMA
ensure that all violators are treated equitably. While the amount
of the penalty may vary from case to case, the methods used to develop
the penalty will be consistent.
[Ord. No. 2009-232, 12/17/2009]
The remedies provided for in this Part are intended to be concurrent
and cumulative, and the provisions of this Part shall not abridge
or alter any right of action or remedy now or hereafter existing in
law, or under the common law or statutory law, criminal or civil,
available to New Stanton or THTMA.
[Ord. No. 2009-232, 12/17/2009]
The industrial user charged with the penalty shall have 30 days
to pay the proposed penalty in full or, if the industrial user wishes
to contest either the amount of the penalty or the fact of the violation,
the industrial user must file an appeal of the action pursuant to
the municipal law or home rule charter or, in the absence of either
of these, within 30 days, pursuant to 2 Pa.C.S.A. (relating to administrative
law and procedure). Failure to appeal within this period shall result
in a waiver of all legal rights to contest the violation or amount
of the penalty.
