A.
Violations.
(2)
Any person who violates the provisions of §§ 165-3 through 165-19 of this Part 1, upon conviction thereof in a court of competent jurisdiction, may be punished by a fine of not more than $250, and each day on which there is a failure to comply shall be and is hereby declared to be a distinct and separate offense and punishable as such.
B.
Misdemeanors.
(2)
Any person who violates the provisions of §§ 165-20 through 165-30 of this Part 1, upon conviction thereof in a court of competent jurisdiction, may be punished by a fine of not more than $500, and each day on which there is a failure to comply shall be and is hereby deemed to be a distinct and separate offense and punishable as such.
C.
Criteria for enforcement response. The Town of Tonawanda
will consider the following criteria when determining a proper enforcement
response among the available enforcement options:
D.
Enforcement alternatives. The following enforcement alternatives may be utilized by the Town of Tonawanda in response to violations of this Part 1:
(1)
Notice of violation (NOV). The NOV is a letter
providing the industrial user with notice of the violation(s) and
the opportunity to correct violations prior to the Town's use of other
enforcement remedies.
(2)
Administrative fines.
(a)
An administrative fine is a monetary penalty assessed by the Pretreatment Administrator for violations of pretreatment standards and requirements. Notwithstanding any other section of this Part 1, any industrial user who is found to have violated any provision of this Part 1, permits or orders issued hereunder, shall be fined in an amount not to exceed $5,000 per violation per day for each day on which noncompliance shall occur or continue.
(b)
The industrial user may, within 15 days of notification
of such fine, petition the Pretreatment Administrator to modify or
suspend the fine. Such petition shall be in written form and shall
be transmitted to the Pretreatment Administrator by registered mail.
The Pretreatment Administrator may:
(c)
Administrative fines are punitive in nature
and are not related to a specific cost borne by the Town of Tonawanda.
Instead, fines are designed to recapture the full or partial economic
benefit of noncompliance and to deter future violations.
(3)
Administrative orders. Administrative orders
(AOs) are enforcement documents which direct industrial users to either
undertake or to cease specified activities. AOs are typically utilized
as the first formal response to significant noncompliance (unless
judicial proceedings are more appropriate), and may incorporate compliance
schedules, administrative penalties or termination of service orders.
The four types of AOs which the Town of Tonawanda may employ are:
(a)
Cease and desist orders. A cease and desist
order directs a noncompliant industrial user to cease illegal or unauthorized
discharges immediately or to terminate its discharger(s) altogether.
The Pretreatment Administrator may issue a cease and desist order
in situations where the discharge could cause interference or pass-through
or otherwise create an emergency situation.
(c)
Show cause hearing.
[1]
In addition to the provisions listed above and in no way limiting their application, the Pretreatment Administrator may order any offender of a provision of this Part 1 to appear before him or his designated representative to show cause why such offense should not be discontinued. A written notice shall be served upon the offending party, specifying the time and place of said hearing and directing the offending party to show cause why an order should not be issued directing the discontinuance of the offense. The notice shall be served personally or by certified mail at least five days prior to the date of hearing; service may be made on any agent or officer of a corporation.
[2]
The Pretreatment Administrator
shall request the Town of Tonawanda Town Attorney or his designated
representative to be present at such show cause hearings.
(d)
Compliance orders.
[1]
A compliance order directs the
industrial user to achieve or restore compliance by a date specified
in the order. The compliance order is usually issued when noncompliance
cannot be resolved without construction, repair or process changes,
or to require industrial users to develop management practices, spill
prevention programs and related pretreatment program requirements.
[2]
The compliance order will document
the noncompliance and state-required actions to be accomplished by
specific dates, including interim and final reporting requirements.
(4)
Civil litigation. Civil litigation is the formal
process of filing lawsuits against industrial users to secure court-ordered
action to correct violations and to secure penalties for violations,
including the recovery of costs to the POTW of the noncompliance.
The Town of Tonawanda's Town Attorney is authorized to commence civil
litigation in a court of competent jurisdiction to obtain injunctive
relief, penalties and damages under any applicable rule, regulation,
ordinance or statute. Such civil penalties shall be in the amount
of at least $1,000 per violation per day.
(5)
Consent decree. Consent decrees are agreements
between the Town of Tonawanda and the industrial user reached after
a lawsuit has been filed. To be binding, the decree must also be signed
by the judge assigned to the case.
(6)
Injunctive relief. Whenever an industrial user has violated or continues to violate the provisions of this Part 1 or permit or order issued hereunder, the Pretreatment Administrator, through counsel, may petition the court for the issuance of a preliminary or permanent injunction, or both (as may be appropriate), which restrains or compels the activities on the part of the industrial user.
(7)
Civil penalties and cost recovery. Civil litigation
may be necessary to recover costs associated with noncompliance and
to impose civil penalties. A civil suit commenced by the Town of Tonawanda's
Town Attorney in a court of competent jurisdiction will seek to require
the industrial user to pay for all expenses which the Town of Tonawanda
incurred in responding to the noncompliance, including restoration
of the Town's POTW, payment for medical treatment of injured employees
and indemnification of the Town of Tonawanda for all fines assessed
against it for SPDES permit violations.
(8)
Termination of sewer service. Termination of
service is the revocation of an industrial user's privilege to discharge
industrial wastewater into the Town of Tonawanda's sewer system. Termination
may be accomplished by physical severance of the industrial user's
connection to the collection system, plugging or by issuance of an
AO which compels the industrial user to terminate its discharge, or
by a court ruling.
(9)
Suspension and/or revocation of permit.
(a)
Harmful contributions. The Town of Tonawanda
may suspend the wastewater treatment service and/or industrial waste
permit when such suspension is necessary, in the opinion of the Town
of Tonawanda, in order to stop an actual or threatened discharge which
presents or may present an imminent or substantial endangerment to
the health or welfare of persons or to the environment, causes interference
to the POTW or causes the Town of Tonawanda to violate any condition
of its SPDES permit. Any person notified of a suspension of the wastewater
treatment service and/or the industrial waste permit shall immediately
stop or eliminate the contribution. In the event of a failure of the
person to comply voluntarily with the suspension order, the Town of
Tonawanda shall take such steps as deemed necessary, including immediate
severance of the sewer connection, to prevent or minimize damage to
the POTW system or endangerment to any individuals. The Town of Tonawanda
shall reinstate the industrial waste permit and/or the wastewater
treatment services upon proof of the elimination of the noncomplying
discharge. A detailed written statement submitted by the industrial
user describing the causes of the harmful contribution and the measures
taken to prevent any future occurrence shall be submitted to the Town
of Tonawanda within 15 days of the date of occurrence.
(b)
Revocation of permit.
[1]
Any industrial user who violates the following conditions of this Part 1 or applicable state and federal regulations is subject to having his permit revoked in accordance with the procedures of this subsection:
[a]
Failure of a industrial user to
factually report the wastewater constituents and characteristics of
his discharge;
[b]
Failure of the industrial user
to report significant changes in operations of wastewater constituents
and characteristics;
[c]
Refusal of reasonable access to
the industrial user's premises for the purpose of inspection or monitoring;
or
[d]
Violation of conditions of the
permit.
[2]
The Pretreatment Administrator
may revoke a permit upon finding that the industrial user has violated
the conditions of the industrial waste permit, any provisions of the
rules and regulations and applicable state and federal regulations,
or has failed to report significant changes in operations or wastewater
characteristics or has refused authorized personnel reasonable access
to the industrial user's premises for the purposes of inspection and
monitoring.
[3]
Any industrial user whose industrial
waste permit has been revoked shall immediately stop all discharge
of any liquid-carried waste covered by the permit to any Town sewer.
The Pretreatment Administrator may disconnect or permanently block
from such Town sewer the industrial connection of any industrial user
whose permit has been revoked, if such action is necessary to ensure
compliance with the order of revocation, without any liability for
prosecution or damages. Before any further discharge of industrial
wastewater may be made by the industrial user, he must apply for a
new permit and pay all delinquent fees, charges and such other sums
that the industrial user may owe the Pretreatment Administrator. Costs
incurred by the Pretreatment Administrator in revoking the permit
and disconnecting the industrial sewer shall be paid for by the industrial
user before issuance of a new permit.
This section outlines the supplemental enforcement
responses available to the Town of Tonawanda to complement the more
traditional responses described in the preceding sections. Normally,
these responses will be used in conjunction with more traditional
approaches.
A.
Public notices. According to USEPA regulations, the
Town of Tonawanda must comply with the public participation requirements
of 40 CFR 403.8((2)(vii). Among these requirements is annual publication
of a list of industrial users which were in significant noncompliance.
"Significant noncompliance" is defined as violating applicable pretreatment
standards or requirements. The criteria for determining significant
noncompliance are set forth in 40 CFR 403.8(f)(2)(vii) and include
one of more of the following:
(1)
Chronic violations (exceedances 66% of the time
or more during a six-month period) of the same parameter limits;
(2)
Technical review criteria (TRC) violations,
33% or more of measurements for each pollutant parameter taken during
a six-month period equal or exceed the TRC (1.4 times the limit for
conventionals or 1.2 times the limit for toxics except pH);
(3)
Causing pass-through or interference;
(4)
A discharge of imminent endangerment to human
health, welfare or the environment, or which required the POTW to
use its emergency authorities;
(5)
Violations of a compliance schedule milestone
by 90 days or more;
(6)
Violations of report submittal deadlines by
30 days;
(7)
Failure to report noncompliance; or
(8)
Any other violation deemed significant by the
Pretreatment Administrator.
B.
Performance bonds/liability insurance. The Town of
Tonawanda may require, through an AO or as part of a consent agreement,
that a noncompliant industrial user post a performance bond covering
expenses which the POTW might incur in the event of future violations.
This action may require the industrial user to obtain sufficient liability
insurance to cover the cost of restoring the treatment works in the
event that a second upset occurs.
C.
Increased monitoring and reporting. Industrial users
demonstrating a history of noncompliance will be subject to increased
surveillance (i.e., sampling and inspections) by the Town of Tonawanda.
Since recurring violations indicate that at least one chronic problem
exists at the facility, the Town of Tonawanda will monitor the industrial
user closely and require additional user self-monitoring until the
problem is corrected and consistent compliance is demonstrated. For
example, where a pretreatment system is found to be inadequate to
meet applicable limits, an AO requiring the installation of additional
technology may also include increased self-monitoring frequency.
D.
Short-term permit. The length of a permit's effective
period is a discretionary matter. The Town of Tonawanda can use a
permit's duration to force an early look at a noncompliant industrial
user by issuing it a short-term permit. In addition to scheduling
a comprehensive review of the industrial user's circumstances, a short-term
permit may be used to increase self-monitoring and reporting requirements
as well as to impose a compliance schedule which concludes shortly
before permit expiration.
Any person violating any of the provisions of this Part 1 shall become liable to the Town of Tonawanda for such expense, loss or damage occasioned the Town of Tonawanda by reason of such violation.
No unauthorized person shall enter or maliciously,
willfully or negligently break, damage, destroy, uncover, deface or
tamper with any structure, appurtenance or equipment which is part
of the Town of Tonawanda's sewage facilities, equipment, lines or
systems.
The rate of sewage service in the Town of Tonawanda
will be based on charges as set by Town Board resolution.[1]
The Town of Tonawanda shall have the authority to promulgate such additional rules and regulations as it deems advisable, desirable and necessary to implement the terms and conditions of this Part 1. Such rules and regulations shall be established by Town Board resolution.
The terms, conditions, rules, regulations, definitions, requirements, restrictions, use, charges, rates, permits, power and authority of inspectors and engineers and penalties contained in this Part 1 and any and all rules and regulations promulgated by the Town of Tonawanda are complementary, and what is called for by any one shall be as binding as if called for by both.
A.
The provisions of this Part 1 are severable, and if any of the provisions, words, phrases, clauses or terms, or the application thereof to any person, firm or corporation or to any circumstances, shall be held invalid, illegal or unconstitutional by any court of competent jurisdiction, such decision or findings shall not in any way affect the validity, legality or constitutionality of any other provision, word, phrase, clause or term, and they shall continue in full force and effect.
B.
All laws and parts of laws, codes and regulations which are inconsistent with or in conflict with or repugnant to any provisions of this Part 1 shall be deemed not to apply; provided that nothing herein contained shall be construed to prevent the adoption and enforcement of a law, code, or regulation which is more restrictive or establishes a higher standard than those provided in this Part 1.
Chapter 165, Part 1, Sewer Use, of the Code of the Town of Tonawanda, New York, is hereby repealed.[1] This repeal shall not affect or impair any act done or
offense committed, or liability, penalty, forfeiture or punishment
incurred prior to the time such repeal takes effect, but the same
may be enforced or prosecuted as fully and to the same extent as if
such repeal had not been effected. Furthermore, all actions and proceedings
commenced under or by virtue of the local law repealed hereby and
pending immediately prior to the taking effect of the repeal of said
local law may be prosecuted and defended to final effect in the same
manner as they might if such provisions were not so repealed.
[1]
Editor's Note: Former Ch. 165, Part 1, was
comprised of L.L. No. 3-1984, adopted 2-13-1984, as amended.
This Part 1 shall take effect immediately upon filing with the Secretary of State.
