City of Gloversville, NY Article X Enforcement Authority and Penalties

[Amended 2-26-1985 by L.L. No. 1-1985; 1-23-1990 by L.L. No. 1-1990]

§ 236-1001 Authority of City Engineer.

A. Whenever it shall appear to the City Engineer, after investigation, that any person has violated any provision of this chapter (other than § 236-718), the City Engineer shall give written notice to the alleged violator or violators setting forth the nature of the violation and directing that the matters complained of be corrected within such reasonable time limit as may be set by the City Engineer. Any such notice shall be served on the violator by personal service or by registered or certified mail sent to the last address of the violator known to the City Engineer. Where the address is unknown, service may be made upon the owner of the record of the property involved. If satisfactory action is not taken in time allotted by the notice, the violator shall be subject to the penalty provisions of § 236-1003.

B. Any person violating any of the provisions of this chapter shall, in addition, be liable to the City for any expense, loss or damage occasioned to the City by reason of such violations and any expense incurred in correcting the violation.

C. The City Attorney, on his own initiative or at the request of the City Engineer, shall have the right to seek equitable relief in the name of the City to restrain the violation of or to compel compliance with this chapter or any order or determination issued thereunder by the City Engineer.

D. Notwithstanding any inconsistent provisions of this chapter, whenever the City Engineer finds, after investigation, that any user is causing, engaging in or maintaining a condition or activity which, in his 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 for a hearing can be provided, the City Engineer may, without prior hearing, order such user, by notice in writing wherever practicable or in such other form as in his 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. In the event of a user's failure to comply voluntarily with such emergency order or where the giving of notice is impracticable, the City Engineer may take all appropriate action to abate the violating condition, including disconnecting the user's premises from the City's public sewer system. As promptly as possible thereafter, not to exceed 15 days, the City Engineer shall provide the user with the written notice required by Subsection A.

E. The City Engineer, acting upon the belief that an emergency exists, shall be indemnified against any personal liability that may arise in the performance of his duty to protect the public health, safety or welfare or preserve the public sewer system.

§ 236-1002 Enforcement by Joint Sewer Board.

A. Whenever the Joint Sewer Board shall have made a determination that it should prosecute for an alleged violation of this chapter, the Board's attorney shall institute an action in the local criminal court in the jurisdiction in which the alleged violation occurred.

B. The Joint Sewer Board is hereby empowered, after an administrative hearing held in accordance with the provisions of Article VIII, to modify, suspend or revoke a violator's discharge permit.

C. In addition to the powers as set forth in Subsection B above, the Board is further empowered, following a hearing or opportunity to be heard in accordance with the provisions of Article VIII, to issue an order in the name of the Board and of the City enjoining the violator from continuing the violation. Any such order of the Board shall be enforceable in an action brought in the name of the City by the Board's attorney in any court of competent jurisdiction.

D. Any final order issued by the Board pursuant to Subsection B may be reviewed in a proceeding brought pursuant to Article 78 of the New York 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 for the applicant and of each person who has filed a notice of appearance, or upon the applicant in person if not represented by an attorney.

E. Any person violating any provision of this chapter shall, in addition, be liable to the Joint Sewer Board for any expense, loss or damage occasioned to the Board by reason of such violation and any expense incurred in correcting the violation.

F. The Board's attorney, or the City Attorney at the request of the Joint Sewer Board, shall have the right to seek equitable relief in the name of the City to restrain the violation of or to compel compliance with any provision of this chapter.

G. Notwithstanding any inconsistent provision of law, whenever the Board finds, after investigation, that any user within the City 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 otherwise likely to result in irrevocable or irreparable damage to the POTW and it therefore appears to be prejudicial to the public interest to delay action until notice and an opportunity for a hearing can be provided, the Board may, without prior hearing, order such user, by notice in writing or 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. In the event of a user's failure to comply voluntarily with such emergency order, or where the giving of notice is impracticable, the Board may take all appropriate action to abate the violating condition, including disconnecting the user's premises from the City public sewer system. 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 VIII.

H. 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.

§ 236-1003 Penalties for offenses.

A. Jurisdiction. Whenever the Joint Sewer Board shall seek a money fine or imprisonment against a violator of any section of this chapter, then the jurisdiction over said proceeding shall be vested in the local criminal court in the City or town in which the violation occurred.

B. Amount of fine. Any person who violates any provision of this chapter or any order or directive of the City Engineer promulgated thereunder shall be guilty of a violation and, upon conviction thereof, shall be punished by a fine of not less than $300 nor more than $2,500. 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.

C. Disposition of fines. Any fines collected hereunder by the court shall be paid over to the City in which the offense occurred. Thereafter, said City shall be required to remit said fine money to the Joint Sewer Board within 30 days of collection.

D. Restitution. Any person violating any provision of this chapter shall, in addition to any money fines or imprisonment imposed by the foregoing Subsection B, be liable to the Joint Sewer Board for any expense, loss or damage occasioned to the Board by reason of such violation and any expense incurred in correcting the violation.

§ 236-1004 City personnel to cooperate in enforcement.

The City Engineer, the City Attorney and other City officials shall cooperate fully with the Board in its enforcement and administration of applicable provisions of this chapter.

§ 236-1005 Public notification of violations.

A. The Board shall provide notification, in the official daily newspaper with the largest circulation in the City, of industrial users which were significantly in violation 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.

B. For the purposes of this section, a significant violation shall be defined as:

[Amended 8-12-2013 by Res. No. 66-2013]

(1) Chronic violations of wastewater discharge limits, defined here as those in which 66% or more of all of the measurements taken for the same pollutant parameter during a six-month period exceed (by any magnitude) a numeric pretreatment standard of requirement, including instantaneous limits, as defined by 40 CFR 403.3(1);

(2) Technical review criteria (TRC) violations, defined here as those in which 33% or more of all of the measurements taken for the same pollutant parameter during a six-month period equal or exceed the product of the numeric pretreatment standard or requirement, including instantaneous limits, as defined by 40 CFR 403.3(1) multiplied by the applicable TRC (TRC = 1.4 for BOD, TSS, fats, oil, and grease, and 1.2 for all other pollutants except pH);

(3) Any other violation of a pretreatment standard or requirement as defined by 40 CFR 403.3(1) (daily maximum, long-term average, instantaneous limit, or narrative standard) that the POTW determines has caused, alone or in combination with other discharges, interference or pass through (including endangering the health of POTW personnel or the general public);

(4) Any discharge of a pollutant that has caused imminent endangerment to human health, welfare or to the environment or has resulted in the POTW's exercise of its emergency authority under Paragraph (f)(l)(vi)(B) of this section[1] to halt or prevent such a discharge;

[1] Editor's Note: See Paragraph (f)(l)(vi)(B) of 40 CFR 403.8.

(5) Failure to meet, within 90 days after the schedule date, a compliance schedule milestone contained in a local control mechanism or enforcement order for starting construction, completing construction, or attaining final compliance;

(6) Failure to provide, within 30 days after the due date, required reports such as baseline monitoring reports, ninety-day compliance reports, periodic self-monitoring reports, and reports on compliance with compliance schedules;

(7) Failure to accurately report noncompliance;

(8) Any other violation or group of violations, which may include a violation of best management practices, which the Board determines will adversely affect the operation or implementation of the local pretreatment program.

§ 236-1006 Violation of interference or pass through; defense.

A. Any user who introduces into the POTW any pollutant(s) which cause interference or pass through shall, in addition, be guilty of a violation and, upon conviction thereof, shall be punished by a fine of not less than $1,000 nor more than $10,000. 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. A user shall have an affirmative defense in any action brought against it alleging interference or pass through where the user can demonstrate that:

(1) It did not know or have reason to know that its discharge alone or in conjunction with a discharge or discharges from other sources would cause a pass through or interference.

(2) Local limit.

(a) A local limit designed to prevent pass through and/or interference, as the case may be, was developed in accordance with Paragraph (5)(c) of 40 CFR 403 for each pollutant in the user's discharge that caused pass through or interference, and the user was in compliance with each such local limit directly prior to and during the pass through or interference.

(b) If a local limit designed to prevent pass through and/or interference, as the case may be, has not been developed in accordance with Paragraph (5)(c) of 40 CFR 403 for the pollutant(s) that caused the pass through or interference, the user's discharge directly prior to and during the pass through or interference did not change substantially in nature or constituents from the user's prior discharge activity when the POTW was regularly in compliance with the POTW's NPDES permit requirements and in the case of interference applicable requirements for sewage sludge use or disposal.