A.
In addition to proceeding under any other remedy available at law or in equity, the Authority may assess a civil penalty upon any user for violation of any pretreatment requirements, the Federal Water Pollution Control Act, the Clean Streams Law, or any rule or regulation, including these Regulations, ordinance or term or condition of a permit or order adopted or issued by the commonwealth or the Authority. The civil penalty shall not exceed $25,000 per day for each violation. Each day on which a violation shall occur or continue shall be deemed a separate and distinct violation. In addition to the penalties provided herein, the Authority may recover reasonable attorney's fees, court costs, court reporters' fees and other expenses of litigation by appropriate action at law or suit in equity against the person found to have violated these Regulations or the orders, rules, regulations, and permits issued hereunder. Any user assessed a civil penalty hereunder shall be afforded an opportunity to appeal such determination through the procedure set forth in § 60-22 above.
B.
Any person who knowingly makes any false statements,
representation or certification in any application, record, report,
plan or other document filed or required to be maintained pursuant
to these Rules and Regulations, or wastewater contribution permit,
or who falsifies, tampers with, or knowingly renders inaccurate any
monitoring device or method required under these Rules and Regulations
may be assessed a civil penalty hereunder.
A.
On March 26, 1992, the Publicly Owned Treatment Works
Penalty Act, Act 9 of 1992 ("Act 9") was signed into law, with an
effective date of April 25, 1992. Act 9 provides for enhanced penalty
authority for publicly owned treatment works such as the Lancaster
Area Sewer Authority ("Authority"). Act 9 requires the Board of the
Authority to adopt a written civil penalty assessment policy and to
make this policy publicly available if the Authority wished to assess
the enhanced penalties available under Act 9. The Authority desires
to adopt a formal, written civil penalty assessment policy to more
effectively ensure:
(1)
Proper pretreatment of industrial waste prior to discharge
into the Authority's sewage treatment plant.
(2)
Proper pretreatment of industrial waste prior to discharge
into the Authority's sewage treatment plant.
(3)
The proper functioning of the sewage system and the
prevention of pollution of the waters of the Commonwealth of Pennsylvania.
(4)
Compliance with federal and state law for enforcement
of pretreatment standards against industrial users.
B.
It is the intent of the Authority to publicly notify
all users of the Authority's sewage system to whom an industrial waste
discharge permit has been issued of this assessment policy.
C.
When any individual, partnership, company, association,
society, corporation, industry or other group (hereinafter collectively
"person") which discharges industrial waste either fails to comply
with the pretreatment ordinance of an applicable member municipality
or has violated the terms of its industrial waste discharge permit,
the Authority shall assess a penalty pursuant to Act 9. In calculating
and assessing this penalty, the Authority shall consider each of the
factors outlined below and any other relevant factor as determined
by the Authority; nothing herein contained shall prevent the Authority
from eliminating certain relevant factors when assessing the penalty
where the violator is able to show extreme or unusual hardship resulting
from the penalty. All penalties assessed by the Authority shall be
final unless appealed pursuant to the Local Agency Law.[1]
[1]
Editor's Note: See 2 Pa. C.S.A. §§ 551
et seq. and 751 et seq.
The failure to comply with applicable member
municipality's pretreatment ordinance, or the violation of the person's
industrial waste discharge permit often results in an economic benefit
to the user. A person who fails to comply with the applicable pretreatment
ordinance or has violated the terms of the person's waste discharge
permit, shall hereinafter be declared a "violator." In most cases,
the economic benefit for noncompliance and/or significant noncompliance
would be within the exclusive knowledge and control of the violator.
For that reason, the engineer appointed by the Authority for the year
in which the penalty is calculated shall:
A.
Prepare a design for a pretreatment facility that
would enable the violator to comply with the pretreatment ordinance
or the industrial waste discharge permit;
B.
Obtain cost estimates from contractors familiar with the type of construction required to implement the design set forth in Subsection A above;
C.
Include in the design and cost estimate all factors
related to pretreatment, including monitoring, testing, sampling,
and other related matters; and
D.
Calculate the sum total of these costs that shall
be known as the "economic benefit factor."
The violator, as a result of failure to comply
with the pretreatment requirements of the pretreatment ordinance or
permit, will have been able to invest the monies otherwise required
for compliance in materials and labor which enhance further production
of the violator's product. It is assumed for purposes of this policy
that a violator would maintain a profit margin of 20% of the total
cost of materials and labor expended for production. For that reason,
there shall be added to the penalty being calculated a figure equal
to 20% per annum of the economic benefit factor beginning with the
date noncompliance and/or significant noncompliance is determined
and ending on the date the violator complies with the provisions of
the pretreatment ordinance and permit. This figure shall be known
as the "interest factor."
As a result of the violator failing to comply
with the provisions of the pretreatment ordinance or permit, the Authority
will incur certain engineering and legal expenses to seek compliance
with the applicable pretreatment ordinance. All engineering expenses
related to the calculations set forth herein as well as any engineering
expenses related to compliance with the pretreatment ordinance and
permit shall be determined. In addition thereto, all legal expenses
actually incurred by the Authority directly or indirectly related
to the violator's failure to comply with the pretreatment ordinance
and permit shall become part of the penalty determined herein. The
total of the engineering and legal expenses shall be known as the
"soft cost factor."
The engineer employed by the Authority in the year in which the penalty is sought shall estimate the annual operating and maintenance costs of a pretreatment program as designed pursuant to § 60-1 herein. The violator shall pay, as a part of the penalty being determined herein, a sum equal to the estimated annual operating and maintenance cost for each year, or portion thereof, beginning with the initial date of noncompliance and/or significant noncompliance up to the time when the violator is expected to be in compliance. This factor shall be known as the "operation and maintenance cost factor."
A violation of the pretreatment ordinance or
permit by a violator may have significant impact upon the quality
of the air and water of the Commonwealth of Pennsylvania. In addition
thereto, the failure to comply can result in permanent damage to the
Authority's treatment plant and other facilities owned by the Authority.
In some cases, the failure to comply may require the upgrading of
the Authority's sewage treatment plant. The Authority will consider
the impact the failure to comply has on the air and water, as well
as its sewage treatment plant. In the event it is determined by the
Authority that an upgrade to its sewage treatment plant is required
as a result of the violator's noncompliance and/or significant noncompliance,
the violator shall pay the entire cost of the upgrade of the Authority's
sewage treatment plant. The cost shall be determined by the engineer
employed by the Authority in the year in which the penalty is sought.
This determination shall be known as the "upgrade factor."
In the event the Authority determines that the
violator has been in noncompliance and/or significant noncompliance
on prior occasions, that fact shall increase the amount of the penalty
by as much as 20% of the total otherwise determined when excluding
this chapter. This figure shall be known as the "recidivist factor."
In the event the Authority determines that the violator has been recalcitrant or reluctant to comply after notification, or in the event that litigation to enforce compliance must be resorted to by the Authority, the violator shall be obligated to pay an additional amount equal to 20% of the total penalty as calculated by excluding this chapter and Article V, § 60-21 et seq.
A.
The possibility that the Authority will penalize a
violator for noncompliance and/or significant noncompliance deters
others from violating applicable pretreatment standards. To provide
for that deterrence, the Authority may assess a violator with a penalty,
which includes a deterrent factor. The deterrent factor shall include
a base penalty of $200 multiplied by any or all of the following factors:
B.
Each of these factors may increase the base penalty
by up to 1.5 times, as determined in the Authority's sole discretion.
The violator shall pay a civil penalty no less
than the amount of any fine and penalty assessed to the Authority
and/or the member municipality by either or both the Environmental
Protection Agency and/or the Pennsylvania Department of Environmental
Protection.
The penalty to be assessed by the Authority
shall be the total sum of the amounts determined for each applicable
factor.
In no event shall the per diem civil penalty
exceed $25,000 per day as determined by dividing the total penalty,
as determined by these Regulations, by the number of days the violator
is in noncompliance and/or significant noncompliance.
When the Authority determines that a civil penalty
shall be assessed, a description of the applicable appeal process,
including the name, address and telephone number of the person responsible
for accepting such appeal, shall be sent to the violator against whom
the civil penalty is being assessed to enable the violator to appeal
from the assessment. In the event the violator wishes to contest either
the amount of the penalty or the fact of the violation, the violator
shall do so within 30 days of having received notification of the
amount of the penalty. Notification shall be given by certified mail,
return receipt requested, in addition to ordinary mail, sent to the
address of the violator to which sewer bills are addressed.
In the event it is determined that any portion
of this policy or Regulation is deemed illegal, then that portion
only shall be deleted and shall not otherwise effect the policy or
Regulation.
