Town of Newburgh, NY Enforcement and Penalties

Describe how the Superintendent and Town Engineer will investigate instances of noncompliance.

Describe the types of escalated enforcement actions that the Superintendent or Town Engineer will take in response to all anticipated types of user violations and the time periods within which to initiate and follow up these actions adequately reflect the Town Board's responsibility to enforce all applicable standards and requirements.

The enforcement response plan shall contain:

Criteria for scheduling periodic inspection and/or sampling visits to POTW users.

Forms and guidelines for documenting compliance data in a manner which will enable the information to be used as evidence.

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. 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, compliance history of the user and good faith of the user, and shall promote consistent and timely use of enforcement remedies.

The Town Board shall approve the enforcement response plan. The enforcement response plan provides for a consistent and timely approach to enforcement, and the Board's approval is not needed before an enforcement action is undertaken. The enforcement response plan shall be reviewed at least every five years.

§ 148-88 Administrative remedies.

Notification of violation. Whenever the Superintendent finds that any user has violated or is violating this Part 1 or any wastewater discharge permit, order, prohibition, limitation or requirement permitted by this Part 1, he may serve upon such person a written notice stating the nature of the violation. Within 10 calendar days of the date of 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.

Consent orders. The Town Board 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.

Administrative or compliance order.

When the Superintendent finds that a user has violated or continues to violate this Part 1 or a permit or order issued thereunder, he may issue an order to the user responsible for the discharge directing that, following a specified time period, sewer service shall be discontinued unless the violation is corrected and that there is no reoccurrence of the violation. 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.

The user may, within 15 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 may:

Reject any frivolous petitions;

Modify or suspend the order;

Request additional information from the user; or

Order the petitioner to show cause in accordance with Subsection H below.

Administrative fines.

Notwithstanding any other section of this Part 1, any user who is found to have violated any provision of this Part 1 or permits and orders 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.

The user may, within 15 calendar days of notification of such fine, petition the Town Board to modify or suspend the fine. Such petition shall be in written form and shall be transmitted to the Town Board by registered mail. The Town Board may:

Reject any frivolous petitions;

Modify or suspend the fine;

Request additional information from the user; or

Order the petitioner to show cause in accordance with Subsection H below.

Cease and desist orders.

When the Superintendent finds that a user has violated or continues to violate this Part 1 or any permit or order issued hereunder, the Superintendent may issue an order to cease and desist all such violations and direct those persons in noncompliance to:

Comply forthwith.

Take such appropriate remedial or preventive action as may be needed to properly address a continuing or threatened violation, including halting operations or terminating the discharge.

Reject any frivolous petitions;

Modify or suspend the order;

Request additional information from the user; or

Order the petitioner to show cause in accordance with Subsection H below.

Termination of permit.

Any user who violates the following conditions of this Part 1 or a wastewater discharge permit or order or any applicable or state and federal law is subject to permit termination:

Violation of permit conditions.

Failure to accurately report the wastewater constituents and characteristics of its discharge.

Failure to report significant changes in operations or wastewater constituents and characteristics.

Refusal of reasonable access to the user's premises for the purpose of inspection, monitoring or sampling.

Noncompliant industrial users will be notified, by registered mail, of the proposed termination of their wastewater permit.

The user may, within 15 calendar days of receipt of 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 may:

Reject any frivolous petitions;

Request additional information from the user; or

Order the petitioner to show cause in accordance with Subsection H below.

Water supply severance.

Whenever a user has violated or continues to violate the provisions of this Part 1 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.

The user may, within 15 days of severance, petition the Town Board to reconnect water supply service. Such petition shall be in written form and shall be transmitted to the Town Board by registered mail. The Town Board may:

Reject any frivolous petitions;

Reconnect the water supply;

Request additional information from the user; or

Order the petitioner to show cause in accordance with Subsection H below.

Show cause hearing.

The Town Board may order any user appealing administrative remedies for violations of this Part 1 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 and 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 personally or by registered or certified mail (return receipt requested) at least 10 calendar days before the hearing. Service may be made on any principal or executive officer of a user's establishment or to any partner in a user's establishment.

The Town Board may itself conduct the hearing and take evidence or may designate any of its members or any officer or employee of the Town to:

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.

Take the evidence.

Transmit a report of the evidence and hearing, including transcripts and other evidence, together with recommendations to the Town Board for action thereon.

After the Town Board has reviewed the evidence, it may order the user to comply with the order or fine, modify the order or fine or vacate the order or fine.

§ 148-89 Judicial remedies.

Civil penalties. Any person who violates any of the provisions of or who fails to perform any duty imposed by this Part 1 or any order or determination of the Superintendent promulgated under this Part 1 or the terms of any permit issued hereunder 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 held in conformance with the procedures set forth in this Article. Each violation shall be a 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 other attorney appointed by the Town Board at the request of the Town Board in the name of the Town in any court of competent jurisdiction. In addition to the above-described penalty and damages, the Town Board may recover reasonable attorney's fees, court costs and other expenses associated with the enforcement activities, including sampling and monitoring expenses. Such civil penalty may be released or compromised by the Town Board before the matter has been referred to the Town Attorney, and where such matter has been referred to the Town Attorney or other attorney appointed by the Town Board, 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 or other attorney appointed by the Town Board, with the consent of the Town Board.

Court orders.

In addition to the power to asses penalties as set forth in this section, the Town Board shall have the power, following the hearing held in conformance with the procedures set forth in this Article, to seek an order:

Suspending, revoking or modifying the violator's wastewater discharge permit.

Enjoining the violator from continuing the violation.

Any such order shall be sought in an action brought by the Town Attorney at the request of the Town Board in the name of the Town in any court of competent jurisdiction.

The Town Board shall petition the court to impose, assess and recover such sums imposed according to this section. 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.

Criminal penalties.

Any person who willfully violates any provision of this Part 1 or any final determination or order of the Town Board made in accordance with this Article shall, in addition, be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $500 nor more than $1,000. 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. In the event of a second conviction, the user shall be punishable by a fine not to exceed $3,000 per violation per day or imprisonment for not more than three years, or both.

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 Part 1 or wastewater permit or who falsifies, tampers with or knowingly renders inaccurate any monitoring device or method required under this Part 1 shall, upon conviction, 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. In the event of a second conviction, the user shall be punishable by a fine not to exceed $3,000 per violation per day or imprisonment for not more than three years, or both.

No prosecution under this section shall be instituted until after final disposition of a show cause hearing, if any, was instituted.

Injunctive relief. Whenever a user has violated or continues to violate the provisions of this Part 1 or permit or order issued hereunder, the Town Board 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 Town Board.

Damages. Any person violating any of the provisions of this Part 1 shall, in addition, be civilly liable to the Town for any expense, loss or damage occasioned to the Town by reason of such violation.

Summary abatement.

Notwithstanding any inconsistent provisions of this Part 1, whenever the Superintendent finds, after investigation, that any user is causing, engaging in or maintaining a condition or activity which, in his judgment, presents an imminent danger to the public health, safety or welfare or to the environment or is likely to result in irreparable damage to the POTW or the environment and it therefore appears to be prejudicial to the public interest to delay action 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. The user shall be liable for all costs in abating any such condition.

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.

§ 148-90 Delinquent payments.

If there shall be any payments which are due to the Town or any department thereof pursuant to any Article or section of this Part 1 which shall remain due and unpaid, in whole or in part, for a period of 30 calendar days from the date of billing by the town, 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.

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 December 15 of any year, the Town Receiver of Taxes shall report the names of the defaulting persons to the Town Supervisor, the Town Clerk, Town Assessor and the Town Attorney on or before December 15 of the same year. The Town Receiver of Taxes 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 Part 1, to the real property taxes due and owing to the Town in the next succeeding year, and the Town Receiver of Taxes is directed to collect the same in the same manner as real property taxes due and owing to the Town are collected.

Where charges are delinquent and the violator is not a resident of the town, then the Town Attorney is authorized to seek recovery of charges, including punitive damages, in a court of competent jurisdiction.

§ 148-91 Conditions attached to reissuance of permit.

Performance bonds. The Superintendent may decline to reissue a permit to any user which has failed to comply with the provisions of this Part 1 or any order or previous permit issued hereunder unless such user first files with it a satisfactory bond, payable to the town, in a sum not to exceed a value determined by the Superintendent to be necessary to achieve consistent compliance.

Liability insurance. The Superintendent may decline to reissue a permit to any user which has failed to comply with the provisions of this Part 1 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.

§ 148-92 Rewards for information.

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 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.

§ 148-93 Public notice of violations.

The Superintendent shall provide public notification in the official newspaper of the Town of users which were significantly in violation 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.

For the purposes of this section, a "significant violation" shall be a violation:

Which remains uncorrected 45 calendar days after notification of noncompliance.

Which is a part of a pattern of noncompliance over the past twelve-month period.