A.
The Town Board 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. The enforcement response plan
shall:
(1)
Describe how the System Operator will investigate
instances of noncompliance; and
(2)
Describe the types of escalated enforcement
actions that the Town can or will take in response to all anticipated
types of user violations and the time periods within which to initiate
and follow up these actions.
B.
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.
C.
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, and good faith of
the user, and shall promote consistent and timely use of enforcement
remedies.
D.
The Town Board shall approve the enforcement response
plan. The enforcement response plan shall be reviewed at least every
five years.
[Added 12-29-2022 by L.L. No. 1-2023]
A.
The City of Middletown ("Middletown") possesses authority to implement and enforce applicable pretreatment provisions of this Sewer Use Code ("Code") against industrial users located in Sewer District No. 1. With respect to the applicable pretreatment provisions of this Code, Middletown may take any action under this Code that could have been taken by the Town, including all rights of entry as provided in and subject to § 138-100, for purposes of determining compliance and enforcement and including the enforcement of this Code in the courts of law. Middletown shall have primary enforcement authority, and Middletown shall implement and enforce the applicable provisions of this Code in the same manner as Middletown implements and enforces the Middletown Sewer Use Code against industrial users in Middletown.
B.
Middletown possesses authority to perform technical and administrative
duties necessary to implement and enforce the applicable pretreatment
provisions of this Code against industrial users in Sewer District
No. 1. Middletown possesses authority to:
(1)
Update the industrial waste survey on an annual basis;
(2)
Issue permits to all industrial users required to obtain a permit;
(3)
Conduct inspections, sampling and analysis;
(4)
Take all appropriate enforcement action as outlined in Middletown's
enforcement response plan and provided for in this section; and
(5)
Perform any other technical or administrative duties deemed
appropriate by the Town and Middletown.
C.
In addition, Middletown possesses authority to take emergency action
to stop or prevent any discharge which presents or may present an
imminent danger to the health or welfare of humans, which reasonably
appears to threaten the environment, or which threatens to cause interference,
passthrough, or sludge contamination.
D.
If necessary, the Town will assist Middletown in obtaining access
to the facilities of industrial users which pretreat or are required
to pretreat sewage discharges for the purpose of inspection, sampling
and any other duties deemed necessary by Middletown.
Whenever the System Operator 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 System Operator may serve upon such person a
written notice stating the nature of the violation. Within 30 calendar
days of the date the System Operator mails the notice, an explanation
of the violation and a plan for the satisfactory correction and prevention
thereof shall be submitted to the System Operator and the Town Engineer
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.
The Town 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.
A.
When the Town finds that a user has violated or continues
to violate this chapter or a permit or administrative order issued
thereunder, it 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 pretreatment technology, additional
self-monitoring, and management practices.
B.
The user may, within 15 calendar days of receipt of
such order, petition the Town to modify or suspend the order. Such
petition shall be in written form and shall be transmitted to the
Town Court by registered mail. The Town Court shall then:
A.
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.
B.
The user may, within 15 calendar days of notification
of the System Operator's notice of such fine, petition the Town to
modify or suspend the order. Such petition shall be in written form
and shall be transmitted to the Town Court by registered mail. The
Town shall then:
A.
When the Town finds that a user has violated or continues
to violate this chapter or any permit or administrative order issued
hereunder, the Town may issue an administrative order to cease and
desist all such violations and direct those persons in noncompliance
to:
B.
The user may, within 15 calendar days of the date
the System Operator mails notification of such order, petition the
Town to modify or suspend the order. Such petition shall be in written
form and shall be transmitted to the Town Court by registered mail.
The Town Court shall then:
A.
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
or modification:
(1)
Violation of permit conditions or conditions
of an administrative order;
(2)
Failure to accurately report the wastewater
constituents and characteristics of its discharge;
(3)
Failure to report significant changes in operations
or wastewater constituents and characteristics;
(4)
Refusal of reasonable access to the user's premises
for the purpose of inspection, monitoring, or sampling;
(5)
Failure to pay administrative fines, fees or
user charges; or
B.
Noncompliant industrial users will be notified, by
registered mail, of the proposed termination or modification of their
wastewater permit and the reason(s) therefor.
C.
The user may, within 15 calendar days of the date
the System Operator mails such notification, petition the Town to
permit continued use of the POTW by the user. Such petition shall
be in written form and shall be transmitted to the Town by registered
mail. The Town shall then:
A.
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.
B.
The user may, within 15 calendar days of severance,
petition the System Operator to reconnect water supply service. Such
petition shall be in written form and shall be transmitted to the
Town by certified or registered mail. The Town shall then:
A.
The Town Court may order any user appealing administrative remedies for violations of this chapter to show cause, before the Town Court, why an enforcement action, initiated by the Town, 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 Court regarding the proposed permit termination or modification, the reasons why the action is to be taken, and the proposed enforcement action and directing the user to show cause before the Town 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 § 138-112 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.
B.
The Town Court may itself conduct the hearing and
seek the assistance of the Attorney for the Town and the Town Engineer.
The System Operator may designate any officer or employee of the Town
to conduct the hearing and may also:
(1)
Issue, in the name of the Town, notices of hearings
requesting the attendance and testimony of witnesses and the production
of evidence relevant to any matter involved in such hearings;
(2)
Take the evidence;
(3)
Take sworn testimony; and
(4)
Transmit a report of the evidence and hearing,
including transcripts and other evidence, together with recommendations
to the Town for action thereon.
C.
After the Town has reviewed the evidence and testimony,
it may order the user to comply with the System Operator's order or
fine, modify the System Operator's order or fine, or vacate the System
Operator's order or fine.
In the event the System Operator 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, as provided in appropriate
sections of this article, the user shall be deemed in default, and
its rights to contest the System Operator's notice, administrative
order or fine shall be deemed waived.
The notices, orders, petitions, or other notification
which the System Operator 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 System Operator shall be addressed and mailed to the Town offices,
Town Hall.
The Town shall have the right, at the Town's
sole discretion, to utilize any one or more appropriate administrative
remedies set forth in this article.
A.
Any violation of any of the provisions of this chapter
shall constitute a violation as that term is defined in the New York
Penal Law. Unless otherwise specifically provided by law, this violation
shall be punishable by a fine of not more than $250 or by imprisonment
not exceeding 15 days, or both. Where a continuing violation exists,
each day that such a violation continues shall be considered a separate
and distinct offense and shall be punishable accordingly.
B.
The Attorney for the Town, at the request of the System
Operator, may maintain an action or proceeding in the name of the
Town in a court of competent jurisdiction to compel compliance with
these rules and regulations, to prosecute any violation of these rules
and regulations, or restrain by injunction any violation of these
rules and regulations, notwithstanding the provisions of the preceding
paragraph for a penalty or other punishment.
C.
Where any violation of these rules and regulations
causes additional costs, damages, or expenses to the Town (including
but not limited to attorney fees), such violation may also be punished
by a civil suit against the violator, brought by the Attorney for
the Town in the name of the Town in a court of competent jurisdiction,
to recover such additional costs, damages, or expenses.
A.
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 System Operator promulgated under this
chapter, or the terms of any permit issued hereunder, shall be liable
to the Town 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 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
Attorney for the Town, or his or her designated attorney, at the request
of the Town in the name of the Town, in any court of competent jurisdiction
giving preference to courts local to the Town. In addition to the
above-described penalty, the Town may recover all damages incurred
by the Town 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 System Operator
promulgated under this chapter or the terms of any permit issued hereunder.
In addition to the above-described damages, the Town may recover all
reasonable attorney fees incurred by the Town in enforcing the provisions
of this chapter, including reasonable attorney fees incurred in any
action to recover penalties and damages, and the Town may also recover
court costs and other expenses associated with the enforcement activities,
including sampling and monitoring expenses.
B.
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.
C.
Such civil penalty may be released or compromised
by the Town before the matter has been referred to the Attorney for
the Town, 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 Attorney
for the Town, with the consent of the Town.
A.
In addition to the power to assess penalties as set
forth in this article, the Town shall have the power, following the
hearing held in conformance with the procedures set forth in this
chapter, to seek an order:
B.
Any such court order shall be sought in an action
brought by the Attorney for the Town, at the request of the Town,
in any court of competent jurisdiction, giving preference to courts
local to the Town.
C.
The Attorney for the Town, at the request of the Town,
shall petition the Court to impose, assess, and recover such sums
imposed according to this chapter. In determining the 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.
A.
Any person who willfully violates any provision of
this chapter or any final determination or administrative order of
the Town made in accordance with this chapter 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.
B.
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.
C.
No prosecution under this section shall be instituted
until after final disposition of a show cause hearing, if any, was
instituted.
Whenever a user has violated or continues to
violate the provisions of this chapter or permit or order issued hereunder,
the Town, through the Attorney for the Town, 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 sewer district.
A.
Notwithstanding any inconsistent provisions of this
chapter, whenever the System Operator finds, after investigation,
that any user is causing, engaging in, or maintaining a condition
or activity which, in the judgment of the System Operator, 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
Town 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 Town may take all
appropriate action to abate the violating condition. As promptly as
possible thereafter, not to exceed 15 calendar days, the System Operator
shall provide the user an opportunity to be heard, in accordance with
the provisions of this article.
B.
The System Operator, 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, 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, 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 October 1 of any year, the Town
Supervisor shall report the names of the defaulting persons to the
Town, the Town Assessor, and the Orange 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 in the next succeeding year, and the Town Supervisor
is directed to collect the same in the same manner as real property
taxes due and owing to the Town are collected.
C.
Where charges are delinquent and the violator is not
a resident of the Town, or is located outside the geographical boundaries
of the Town, then the Attorney for the Town 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 chapter, to the real property taxes due to the county in
the next ensuing year.
The Town Board may decline to reissue or issue
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 to be
necessary to achieve consistent compliance.
The Town may decline to reissue or issue 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 Supervisor shall provide public notification,
in the daily newspaper with the largest circulation in the Town, of
users which were in significant noncompliance of local or federal
pretreatment standards or requirements since the last such notice.
The frequency of such notices shall be determined by the Supervisor.
A.
Users who are not in compliance with applicable pretreatment
standards and requirements may be deemed ineligible to receive a contractual
award for the sale of goods or services to the Town.
B.
Existing contracts for the sale of goods or services
to the Town held by a user found to be in significant violation with
pretreatment standards may be terminated at the discretion of the
Town Board.
