Town of Poughkeepsie, NY Penalties and Enforcement

When the Town Engineer finds that a user has violated or continues to violate Article X through XIII 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.

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

Reject any frivolous petitions;

Modify or suspend the order; or

Order the petitioner to show cause in accordance with § 168-97F and may, as part of the show-cause notice, request the user to supply additional information.

Administrative fines.

Notwithstanding any other section of Articles X through XIII, any user who is found to have violated any provision of Articles X through XIII, 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.

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

Reject any frivolous petitions;

Modify or suspend the fine; or

Order the petitioner to show cause in accordance with § 168-97F and may, as part of the show-cause notice, request the user to supply additional information.

Termination of permit.

Any user who violates any of the following conditions of Article X through XIII or a wastewater discharge permit or administrative order, or any applicable or state and federal law, is subject to permit termination:

Violation of permit conditions or conditions of an administrative order.

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

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

(d)

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

(e)

Failure to pay administrative fines, fees or user charges.

Noncompliant industrial users will be notified, by registered mail, of the proposed termination of their wastewater permit. Termination of permit can be carried out by the Town Board based on the judgment of the Board of Appeals.

The user may, within 15 calendar days of the date the Town Engineer mails such notification, petition the Town Engineer to permit continued use of the POTW by the user. Such petition shall be in written form and shall be transmitted to the Town Engineer by registered mail. The Town Engineer shall then:

Reject any frivolous petitions; or

Order the petitioner to show cause in accordance with § 168-97F and may, as part of the show-cause notice, request the user to supply additional information.

Water supply severance.

Whenever a user has violated or continues to violate the provisions of Articles X through XIII 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 calendar days of severance, petition the managing operator to reconnect water supply service. Such petition shall be in written form and shall be transmitted to the managing operator by registered mail. The managing operator shall then:

Reject any frivolous petitions;

Reconnect the water supply; or

Order the petitioner to show cause in accordance with § 168-97F and may, as part of the show-cause notice, request the user to supply additional information.

Show-cause hearing.

The managing operator may order any user appealing administrative remedies for violations of Articles X through XIII to show cause, before the Town Board of Appeals, why an enforcement action, initiated by the Town Engineer, 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 of Appeals 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 Town Board of Appeals 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 § 168-97H 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 Board of Appeals, as designated by the Town Board, shall conduct the hearing and shall:

Issue, in the name of the Town Board of Appeals, 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.

Take sworn testimony.

(d)

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 Board of Appeals has reviewed the evidence and testimony, it may order the user to comply with the Town Engineer's order or fine, modify the Town Engineer's order or fine or vacate the Town Engineer's order or fine.

Failure of user to petition Town Engineer. In the event that the Town Engineer issues any administrative order, terminates the user' 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 Engineer, 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.

Notice. The notices, orders, petitions or other notification which the user or Town Engineer shall desire or be required to give pursuant to any sections of Articles X through XIII 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 Articles X through XIII 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 Town Engineer and/or managing operator shall be addressed and mailed to the Town Hall of the Town of Poughkeepsie.

Right to choose multiple remedies. The Town Engineer shall have the right, within the Town Engineer's sole discretion, to utilize any one or more appropriate administrative remedies set forth in this article. The Town Engineer may utilize more than one administrative remedy established pursuant to this article, and the Board of Appeals may hold one show cause hearing combining more than one enforcement action.

Town Board of Appeals. The Town Board of the Town of Poughkeepsie shall designate a three-member panel to be known as the "Board of Appeals" for the purpose of these rules and regulations. This Board of Appeals shall consist of members of the Town Board in the form of a subcommittee.

§ 168-98 Judicial remedies.

Civil actions for penalties.

Any person who violates any of the provisions of or who fails to perform any duty imposed by Article X through Article XIII, or any administrative order or determination of the managing operator promulgated under Articles X through XIII 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 (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 a continuing violation, each days continuance thereof shall be deemed a separate and distinct violation. Such penalty may be recovered in an action brought by the Town Attorney, or his designated attorney, at the request of the managing operator 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 managing operator may recover all damages incurred by the Town from any persons or users who violate any provisions of Articles X through XIII or who fail to perform any duties imposed by Articles X through XIII or any administrative order or determination of the managing operator promulgated under Articles X through XIII or the terms of any permit issued hereunder. In addition to the above-described damages, the managing operator may recover all reasonable attorney's fees incurred by the Town in enforcing the provisions of this article, including reasonable attorney's fees incurred in any action to recover penalties and damages, and the managing operator, Town Engineer and Superintendent may also recover court costs and other expenses associated with the enforcement activities, including sampling and monitoring expenses.

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.

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, 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, with the consent of the managing operator.

Court orders.

In addition to the power to assess penalties as set forth in this article, the Town Attorney 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; or

Enjoining the violator from continuing the violation.

Any such court order shall be sought in an action brought by the Town Attorney, at the request of the Town Engineer, in the name of the town, in any court of competent jurisdiction giving precedence to courts local to the town.

The Town Attorney, at the request of the Town Engineer, shall petition the Court to impose, assess and recover such sums imposed according to this article. 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.

Criminal penalties.

Any person who willfully violates any provision of Articles X through XIII or any final determination or administrative order of the Town Engineer 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.

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 Articles X through XIII, or wastewater permit, or who falsifies, tampers with or knowingly renders inaccurate any monitoring device or method required under Articles X through XIII 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.

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

Additional injunctive relief. Whenever a user has violated or continues to violate the provisions of Articles X through XIII or permit or order issued hereunder, the Town Engineer, 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 Engineer.

Summary abatement.

Notwithstanding any inconsistent provisions of Articles X through XIII, whenever the Town Engineer finds, after investigation, that any user is causing, engaging in or maintaining a condition or activity which, in the judgment of the Town Engineer, 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 Engineer 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 Engineer may take all appropriate action to abate the violating condition. As promptly as possible thereafter, not to exceed 15 calendar days, the Town Engineer shall provide the user an opportunity to be heard, in accordance with the provisions of this article.

If the user is not within the geographic boundaries of the town, the right of summary abatement to discontinue, abate or alleviate conditions or activities shall be those prescribed in the intermunicipal agreement.