[1]
This article is under review by NYSDEC and may be revised
following review. The municipal attorney or officer responsible for
drafting the Village Sewer Use Law should carefully review the provisions
in this article of the model and make any suitable adjustments to
maintain consistency with local and state law.
A.
The Superintendent 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.
B.
The Enforcement Response Plan shall:
(1)
Describe how the Superintendent will investigate instances of
noncompliance.
(2)
Describe the types of escalated enforcement actions that the
Superintendent will take in response to all anticipated types of user
violations and the time periods within which to initiate and follow-up
these actions.
(3)
Adequately reflect the Village Board's responsibility to enforce
all applicable standards and requirements.
C.
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.
D.
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.
E.
The Village Board shall approve the Enforcement Response Plan. The
Enforcement Response Plan shall be reviewed at least every five years.
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,
the Superintendent may serve upon such person a written notice stating
the nature of the violation. Within 10 calendar days of the date the
Superintendent mails 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.
The Superintendent 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 Superintendent finds that a user has violated or continues
to violate this Part 1 or a permit or administrative order issued
thereunder, he 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 Superintendent to modify or suspend the order. Such petition shall
be in written form and shall be transmitted to the Superintendent
by registered mail. The Superintendent shall then:
A.
Notwithstanding any other section of this Part 1, any user who is found to have violated any provision of this Part 1, or a wastewater discharge permit or administrative order 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.
B.
The user may, within 15 calendar days of notification of the Superintendent's
notice of such fine, petition the Superintendent to modify or suspend
the order. Such petition shall be in written form and shall be transmitted
to the Superintendent by registered mail. The Superintendent shall
then:
A.
When the Superintendent finds that a user has violated or continues
to violate this Part 1 or any permit or administrative order issued
hereunder, the Superintendent 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 Superintendent
mails notification of such order, petition the Superintendent to modify
or suspend the order. Such petition shall be in written form and shall
be transmitted to the Superintendent by registered mail. The Superintendent
shall then:
A.
Any user who violates the following conditions of this Part 1 or
a wastewater discharge permit or administrative order, or any applicable
or state and federal law, is subject to permit termination:
(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; or
(5)
Failure to pay administrative fines, fees or user charges.
B.
Noncompliant industrial users will be notified, by registered mail,
of the proposed termination of their wastewater permit.
C.
The user may, within 15 calendar days of the date the Superintendent
mails such notification, petition the Superintendent to permit continued
use of the POTW by the user. Such petition shall be in written form
and shall be transmitted to the Superintendent by registered mail.
The Superintendent shall then:
A.
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.
B.
The user may, within 15 calendar days of severance, petition the
Superintendent to reconnect water supply service. Such petition shall
be in written form and shall be transmitted to the Superintendent
by registered mail. The Superintendent shall then:
A.
The Superintendent may order any user appealing administrative remedies for violations of this Part 1 to show cause, before the Village 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 Village Board regarding the violation, the reasons why the action is to be taken, the proposed enforcement action, and directing the user to show cause before the Village Board 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 § 121-131 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. The notice of the hearing shall be served at least 10 calendar days before the hearing, in accordance with § 121-131.
B.
The Village Board may itself conduct the hearing, or may designate
any of its members or any officer or employee of the Village to conduct
the hearing:
(1)
Issue, in the name of the Village Board, 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;
(4)
Transmit a report of the evidence and hearing, including transcripts
and other evidence, together with recommendations to the Village Board
for action thereon.
C.
After the Village Board has reviewed the evidence and testimony,
it may order the user to comply with the Superintendent's order or
fine, modify the Superintendent's order or fine, or vacate the Superintendent's
order or fine.
In the event that the Superintendent 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 Superintendent, as provided in
appropriate sections of this article, the user shall be deemed in
default and its rights to contest the administrative order or fine
shall be deemed waived.
The notices, orders, petitions, or other notification which the user or Superintendent shall desire or be required to give pursuant to any sections of this Part 1 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 Part 1 shall be mailed to the user where the user's effluent is discharged into transmission lines to the Village's POTW. Any notice, petition, or other communication mailed to the Superintendent shall be addressed and mailed to the Village Hall of the Village.
The Superintendent shall have the right, within the Superintendent's
sole discretion, to utilize any one or more appropriate administrative
remedies set forth in this article. The Superintendent may utilize
more than one administrative remedy established pursuant to this article,
and the Superintendent may hold one show cause hearing combining more
than one enforcement action.
A.
Any person who violates any of the provisions of or who fails to perform any duty imposed by this Part 1, or any administrative order or determination of the Superintendent promulgated under this Part 1, or the terms of any permit issued hereunder, shall be liable to the Village for a civil penalty 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 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 Village Attorney, or his designated attorney, at the request of the Superintendent in the name of the Village, in any court of competent jurisdiction giving preference to courts local to the Village. In addition to the above described penalty, the Superintendent may recover all damages incurred by the Village from any persons or users who violate any provisions of this Part 1, or who fail to perform any duties imposed by this Part 1 or any administrative order or determination of the Superintendent promulgated under this Part 1, or the terms of any permit issued hereunder. In addition to the above described damages, the Superintendent may recover all reasonable attorney's fees incurred by the Village in enforcing the provisions of this article, including reasonable attorney's fees incurred in any action to recover penalties and damages, and the Superintendent 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 Superintendent
before the matter has been referred to the Village Attorney, and where
such matter has been referred to the Village Attorney, any such penalty
may be released or compromised and any action commenced to recover
the same may be settled and discontinued by the Village Attorney,
with the consent of the Superintendent.
A.
In addition to the power to assess penalties as set forth in this
article, the Superintendent shall have the power, following the hearing
held in conformance with the procedures set forth in this article,
to seek an order:
B.
Any such court order shall be sought in an action brought by the
Village Attorney, at the request of the Superintendent, in the name
of the Village, in any court of competent jurisdiction giving precedence
to courts local to the Village.
C.
The Village Attorney, at the request of the Superintendent, shall
petition the court to impose, assess, and recover such sums imposed
according to this article. 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.
A.
Any person who willfully violates any provision of this Part 1 or any final determination or administrative order of the Superintendent made in accordance with this article 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 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 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 Part 1 or permit or order issued hereunder, the Superintendent,
through counsel, may petition the court, in the name of the Village,
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 Superintendent.
A.
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 the judgment of the Superintendent, 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 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.
B.
If the user is not within the geographic boundaries of the Village,
the right of summary abatement to discontinue, abate, or alleviate
conditions or activities shall be those prescribed in the intermunicipal
agreement.
C.
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 or the environment.
A.
If there shall be any payments which are due to the Village, 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 20 calendar days from the date of billing by the Village, 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 December 15 of any year, the Superintendent
shall report the names of the defaulting persons to the Village Supervisor,
the Village Clerk, the Village Chief Assessor, and the Village Treasurer
on or before December 15 of the same year. The Village Chief 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 Part 1, to the real property taxes
due and owing to Village in the next succeeding year, and the Village
Chief Assessor is directed to collect the same in the same manner
as real property taxes due and owing to the Village are collected.
C.
Where charges are delinquent and the violator is not a resident of
the Village, or is located outside the geographical boundaries of
the Village, then the Village Attorney 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 this Part 1, to the real property taxes due to the county in
the next ensuing year.
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 POTW, in a sum not to
exceed a value determined by the Superintendent to be necessary to
achieve consistent compliance.
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.
The Superintendent shall provide public notification, in the
daily newspaper with the largest circulation in the Village, 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 at least once per year.
A.
Users which have not achieved consistent compliance with applicable
pretreatment standards and requirements are not eligible to receive
a contractual award for the sale of goods or services to the Village.
B.
Existing contracts for the sale of goods or services to the Village
held by a user found to be in significant violation with pretreatment
standards may be terminated at the discretion of the Village Board.
