Any user who is found to have violated the provision, requirements or pretreatment standards of this Part 3, 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 Unity Township, 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 for each violation, regardless of jurisdictional boundaries. Each violation for each separate day shall constitute a separate and distinct offense. THTMA or Unity Township may recover its costs for reestablishing the operating of the POTW, in addition to any civil penalty imposed hereunder. In addition, THTMA or Unity Township may recover attorneys' fees, all court costs and all other expenses of litigation to the extent permitted by law.
Compliance; economic benefits.
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, Unity Township and/or THTMA shall take into consideration the following:
Damage to air, water, land or other natural resources and their uses.
Costs of restoration and abatement.
Savings to the user as a result of the violation.
History of past violations.
Deterrence of future violations.
Other relevant factors as determined by Unity Township and/or THTMA.
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:
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.
The annual costs that the user avoids and the expected return on avoided costs during the period of noncompliance.
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.
In this Part 3, the economic benefit calculation is focused on the first two benefits. The Guidance Manual for POTW's to Calculate the Economic Benefit of Noncompliance, United States Environmental Protection Agency, September 5, 1990, may be applied in calculating the penalty.
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 violation 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 Unity Township's and/or THTMA's policy will be to include such an amount.
Recovering for damages to public facilities and/or natural resources.
Failure to comply with pretreatment standards and requirements may cause damage to the collection system of Unity Township 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, Unity Township or THTMA may determine to require that a violating user pay reparations for any damages 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.
Pollutants which pass through or interfere with POTW processes may cause damage to natural systems in receiving waters. In addition to assessing penalties to recover for such damages, Unity Township or THTMA may consider requiring mitigation and remediation programs.
Unity Township and/or THTMA will consider assessing higher 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:
Cost of restoration and abatement. Some violations may have negative impacts on the POTW itself. For example, such violations may result in significant increases in treatment costs or interference, harm POTW personnel, equipment, processes or operations or cause sludge contamination, resulting in increased disposal costs. When a user's noncompliance harms the POTW, Unity Township or THTMA will assess a larger penalty.
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 3 will be applied to any or all types of pollution control costs.
History of past violation.
Unity Township 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 a 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, and violations at different discharge points or outfalls or indirect discharges 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 though it may result in simultaneous violations of more than one pretreatment standard.
Editor's Note: See 35 P.S. § 752.1 et seq.
Unity Township 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.
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.
Unity Township 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 Unity Township 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 agreements 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.
When a user demonstrates that it is unable to pay a settlement penalty, Unity Township 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, Unity Township or THTMA may consider other options. For example, Unity Township or THTMA may consider an installment payment plan with the user paying interest. Only as a last recourse, Unity Township 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.
Deterrence of future violations.
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, Unity Township 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. Unity Township or THTMA hereby determines that assessing a penalty which, as a minimum, eliminates the economic benefit of noncompliance (or makes noncompliance more expensive than compliance) will encourage users to remain in compliance.
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. Unity Township 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.
The EPA or DEP can take enforcement action against a user violating the Clean Water Act, 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, Unity Township or THTMA may consider reducing the penalty by an amount equal to that which the user already paid for the same violation.
In order to treat all users fairly and equitably, Unity Township 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 advantage over the complying users. By assessing a penalty based on economic benefit, Unity Township or THTMA will strive to eliminate or remove any financial advantage the violator gains.
By exercising a consistent penalty methodology, Unity Township 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.
Unity Township or THTMA will take into account the policies of the EPA in setting penalties. The EPA defines "significant noncompliance," in its revisions to the general pretreatment regulations [40 CFR 403.8(f)(2)(vii)], as violations which meet one or more of the following criteria:
Chronic violations of wastewater discharge limits, defined here as those in which 66% or more of all the measurements taken during a six-month period exceed (by any magnitude) the daily maximum limit or the average limit for the same pollutant parameter;
Technical review criteria (TRC) violations, defined here as those in which 33% or more of all of the measurements for each pollutant parameter taken during a six-month period exceed the daily maximum limit or the same limit by more than the TRC value in a six-month period (TRC equals 1.4 for BOD, TSS, fats, oil and grease, and 1.2 for all other pollutants except pH);
Any other violation of a pretreatment effluent limit (daily maximum or longer-term average) that Unity Township or THTMA determines has caused, alone or in combination with other dischargers, interferences or pass-through (including endangering the health of POTW personnel or the general public);
Any discharge of a pollutant that has caused imminent endangerment to human health, welfare or to the environment or has resulted in the POTW's exercise of its emergency authority under 40 CFR 403.8(f)(1)(vi)(B) to halt or prevent such a discharge;
Failure to meet, within 90 days after the scheduled date, a compliance schedule milestone contained in a local control mechanism or enforcement order for starting construction, completing construction or attaining final compliance:
Failure to provide, within 30 days after the due date, required reports such as baseline monitoring reports, ninety-day compliance reports, periodic self-monitoring reports and reports on compliance with compliance schedules;
Failure to accurately report noncompliance: or
Any other violation or group of violations which Unity Township or THTMA determines will adversely affect the operation or implementation of the local pretreatment program.
Violation of the pretreatment standards and requirements which constitute significant noncompliance are considered to be the most serious violation and require a strong and immediate response. Assessment of civil penalties may occur for significant noncompliance.
In addition to assessing appropriate penalties commensurate with the factors listed above, Unity Township or THTMA shall consider assessing larger penalties in cases of repeat violations, including all violations of permit effluent limitations, monitoring and reporting requirements and other standard and special discharge conditions. This consideration produces flexibility in assessing penalties for multiple violations.
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 3 or pretreatment permit or who falsifies, tampers with or knowingly renders inaccurate any monitoring device or method required under this Part 3 shall, upon conviction, be punished by a fine of not more than $1,000 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.
The remedies provided for in this Part 3 are intended to be concurrent and cumulative, and the provisions of this Part 3 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 Unity Township or THTMA.
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.