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.
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.
Criteria for enforcement response. The Town of Tonawanda will consider the following criteria when determining a proper enforcement response among the available enforcement options:
Enforcement alternatives. The following enforcement alternatives may be utilized by the Town of Tonawanda in response to violations of this Part 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.
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.
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:
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.
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:
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.
Show cause hearing.
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.
The Pretreatment Administrator shall request the Town of Tonawanda Town Attorney or his designated representative to be present at such show cause hearings.
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.
The compliance order will document the noncompliance and state-required actions to be accomplished by specific dates, including interim and final reporting requirements.
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.
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.
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.
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.
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.
Suspension and/or revocation of permit.
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.
Revocation of permit.
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:
Failure of a industrial user to factually report the wastewater constituents and characteristics of his discharge;
Failure of the industrial user to report significant changes in operations of wastewater constituents and characteristics;
Refusal of reasonable access to the industrial user's premises for the purpose of inspection or monitoring; or
Violation of conditions of the permit.
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.
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.
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:
Chronic violations (exceedances 66% of the time or more during a six-month period) of the same parameter limits;
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);
Causing pass-through or interference;
A discharge of imminent endangerment to human health, welfare or the environment, or which required the POTW to use its emergency authorities;
Violations of a compliance schedule milestone by 90 days or more;
Violations of report submittal deadlines by 30 days;
Failure to report noncompliance; or
Any other violation deemed significant by the Pretreatment Administrator.
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.
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.
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.
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.
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.
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.
This Part 1 shall supersede all prior laws and ordinances in conflict therewith.
Chapter 165, Part 1, Sewer Use, of the Code of the Town of Tonawanda, New York, is hereby repealed. 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.
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.