A.
The Board may, on its own motion, investigate or make
inquiry, in a manner to be determined by it as to any condition affecting
the public sewer system and as to any alleged act or omission or failure
to comply with any provision of this Part 1 and any permit, order
or determination issued thereunder.
B.
Whenever it shall appear to the Board, after investigation,
that there has been violation of any of the provisions of this Part
1 or any permit issued thereunder, it shall give written notice to
the alleged violators, setting forth any thing or act done or omitted
to be done or claimed to be in violation of any such provisions and
requiring that the matters complained of be corrected or that the
alleged violator appear in person or by an attorney before the Board
or its duly designated representative at the time and place in said
notice specified and answer the charges complained of.
C.
At least 15 days' notice of such hearing shall be
given.
D.
Upon the return day of such notice, the person so
notified shall file with the Board a statement setting forth the position
of the person so notified, the answer, if any, to the charges made
against him, the methods, practices and procedures, if any, which
are being taken to correct each alleged violation and any other defenses
or information pertinent to the case. Pertinent and relevant testimony
of witnesses shall be received in support of or opposition to said
statement.
E.
Following a hearing and after due consideration of the written and oral statements and testimony and arguments filed pursuant to Subsection D above or on default in appearance on said return day, the Board may issue and enter such final order or make such final determination as it deems appropriate under the circumstances and shall notify such person or persons thereof in writing.
A.
The Board or any person designated by it for this
purpose may issue subpoenas and administer oaths in connection with
any hearing or investigation under or pursuant to the provisions of
this article, and it shall be the duty of the Board or any persons
designated by it for such purpose to issue subpoenas at the request
of and upon behalf of the respondent.
B.
The Board and those designated by it shall be bound
by laws of evidence in the conduct of hearing proceedings, but the
determination shall be founded upon sufficient legal evidence to sustain
it.
C.
Notice of hearing shall be served at least 15 days
prior to the date of the hearing, provided that whenever, because
of danger to the public health, safety or welfare, it appears prejudicial
to the public interest to delay action for 15 days, the Board may
serve the respondent with an order requiring certain action or the
cessation of certain activities immediately or within a specified
period of less than 15 days, and the Board shall provide an opportunity
to be heard within 15 days after the date the order is served.
D.
Service of notice of hearing or order shall be made
by personal service or by registered or certified mail. Where service,
whether by personal service or by registered or certified mail, is
made upon an infant, incompetent, partnership, corporation, governmental
subdivision, board or commission, it shall be made upon the person
or persons designated to receive personal service by Article 3 of
the Civil Practice Law and Rules.
E.
The Town Attorney, at the request of the Board, may
prefer charges, attend hearings, present the facts and take any and
all proceedings in connection therewith.
F.
At a hearing, the respondent may appear personally,
shall have the right of counsel and may cross-examine witnesses against
him and produce evidence and witnesses in his behalf.
G.
A record, or summary thereof, of the proceedings of
said hearings shall be made and filed with the Department. If requested
to do so by any party concerned with said hearing, the full stenographic
notes of the testimony presented at said hearing shall be taken and
filed. The stenographer shall, upon the payment of his fees allowed
by law therefor, furnish a certificate transcript of the whole or
any part of his notes to any party to the action requiring the same.
H.
Unless precluded by law, disposition may be made of any hearing by stipulation, agreed settlement, consent order, default or other informal method. Within 10 days of the notice specified in § 116-67B, the user may request a prehearing conference with the Board's representative for an informal disposition of any or all charges.
I.
Upon request made by any party upon the Department
within a reasonable time, but prior to the time for commencement of
judicial review, of its giving notice of its decision, determination,
opinion or order, the agency shall prepare the record, together with
any transcript of proceedings, within a reasonable time and shall
furnish a copy of the record and transcript or any part thereof to
any party as he may request. Except when any law provides otherwise,
the Department is authorized to charge not more than its cost for
the preparation and furnishing of such record or transcript, or any
part thereof, or the rate specified in the contract between the agency
and a contractor if prepared by a private contractor.
J.
Upon application of any affected user, the Board may
modify or amend any determination after a hearing.
A.
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 Board promulgated under this Part 1 or the terms of any permit issued thereunder shall be liable to the Town for a civil penalty not to exceed $1,000 for each violation, to be assessed after a hearing held in conformance with the procedures set forth in Article VII of this Part 1. Each violation shall be a separate and distinct violation, and, in the case of a 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 at the request of the Board in the name of the Town in any court of competent jurisdiction. Such civil penalty may be released or compromised by the Board before the matter has been referred to the Town Attorney; and, where such penalty may be released or compromised, any action commenced to recover the same may be settled and discontinued by the Town Attorney with the consent of the Board.
B.
In addition to the power to assess penalties as set forth in Subsection A above, the Board shall have the power, following a hearing held in conformance with the procedures set forth in Article VII of this Part 1, to issue an order suspending, revoking or modifying the violator's permit or enjoining the violator from continuing the violation. Any such order of the Board shall be enforceable in an action brought by the Town Attorney at the request of the Board in the name of the Department in any court of competent jurisdiction.
C.
Any civil penalty or order issued by the Board pursuant
to this section shall be reviewable in a proceeding pursuant to Article
78 of the Civil Practice Law and Rules. Application for such review
must be made within 60 days after service in person or by mail of
a copy of the determination or order upon the attorney of record of
the applicant and of each person who has filed a notice of appearance
or the applicant in person, if not directly represented by an attorney.
A.
Any person who willfully violates any provision of this Part 1 or any final determination or order of the Board made in accordance with Article VII shall be punished by a fine of not less than $500 nor more than $1,000 or face appropriate civil/criminal prosecution. 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 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.
The Town Attorney, at the request of the Board,
shall have the right to seek equitable relief in the name of the Town
to restrain the violation of or to compel compliance with this Part
1 or any order or determination issued thereunder by the Board.
A.
Notwithstanding any inconsistent provisions of law, whenever the Board finds, after investigation, that any user is causing, engaging in or maintaining a condition or activity which, in its judgment, presents an imminent danger to the public health, safety or welfare or to the environment or is likely to result in irreversible or irreparable damage to the public sewer system, and it therefore appears to be prejudicial to the public interest to delay action until notice and an opportunity of a hearing can be provided, the Board may, without prior hearing, order such user by notice, in writing wherever practicable or in such other form as in the Board's judgment will reasonably notify such person whose 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 impractical or in the event of a user's failure to comply voluntarily with an emergency order, the Board may take all appropriate action to abate the violating condition. As promptly as possible thereafter, not to exceed 15 days, the Board shall provide the user an opportunity to be heard in accordance with the provisions of Article VII.
B.
The Board, acting upon the belief that an emergency
exists, shall be indemnified against any personal liability that may
arise in the performance of its duties to protect the public health,
safety or welfare or preserve the public sewer system.
Significant violators of this Part 1 shall have
their names published periodically, in accordance with the applicable
DEC or EPA regulations, in the local newspaper.
No person shall maliciously, willfully or negligently
break, damage, destroy, uncover, deface or tamper with any structure,
appurtenance or equipment which is a part of the Town's sewerage works.
Any person violating this section shall be subject to immediate arrest
under charge of disorderly conduct.
A contractor must present a certificate of insurance
showing suitable liability insurance of not less than $100,000 per
personal injury, property damage or per occurrence before a permit
will be issued for construction of building sewers, sewer extensions
or private sewage disposal.
The Board and its agents and personnel from
the New York State DEC and United States EPA bearing proper credentials
and identification shall be permitted to enter upon all properties
for the purpose of inspection, measurement, sampling and testing.
The failure of the owner of real property or the person in possession
of real property to admit the Board or its agents or personnel for
the New York DEC and United States EPA at reasonable times and upon
reasonable notice, considering the gravity and immediacy of the circumstances
for which entry is requested, shall constitute presumptive evidence
of a violation of this Part 1.
Any person found to be violating any provision of this Part 1, except § 116-75, shall be served by the Town with written notice stating the nature of the violation and providing a reasonable time limit for the unsatisfactory correction thereof. The offender shall, within the period of time stated in such notice, permanently cease all violations.
The Town Board expressly reserves the right
at any time to alter, end or make such addition to this Part 1 as
may be desirable.
