The purpose of the civil penalty assessment policy and procedure is to enact a policy pursuant to the Publicly Owned Treatment Works Penalty Law, Act No. 1992-9. In developing this civil penalty assessment policy and procedure, the Valley Forge Sewer Authority (the "Authority") considered the following factors:
A. 
The damage to air, water, land or other natural resources of the commonwealth and their uses.
B. 
Cost of restoration and abatement.
C. 
Savings resulting to the person in consequence of the violation.
D. 
History of past violations.
E. 
Deterrence of future violations.
F. 
Harm and/or potential harm to the publicly owned treatment works (POTW) and/or its employees.
G. 
Whether the violation resulted or had the potential to result in the POTW violating its national pollutant discharge elimination system (NPDES) permit.
H. 
Whether the violation resulted or could have resulted in the POTW violating any law or regulation affecting its biosolids disposal options.
[Amended 7-13-1998 by Res. No. 98-2]
[Amended 7-13-1998 by Res. No. 98-2]
The Publicly Owned Treatment Works Penalty Law (the "POTW Penalty Law") allows the Authority, as the owner and operator of a POTW with an approved pretreatment program, to assess civil penalties of up to $25,000 per day to any person who violates any substantive or procedural provision of §§ 110-9 through 110-14 of the Authority's Rules and Regulations Governing the Acceptance of Industrial Waste, Trucked Industrial Waste, Holding Tank Waste and Septage [1] (Rules and Regulations") or any term or condition of any industrial waste discharge permit, commercial discharge permit or waste permit issued by the Authority. Each violation for each day shall constitute a separate and distinct violation. Notwithstanding the foregoing, a single operational upset which gives rise to simultaneous violations shall be treated as a single violation.
[1]
Editor's Note: See Art. II of this chapter.
The Authority has developed enforcement guidelines (Industrial Waste and Trucked Industrial Waste Control Program, Monitoring Program and Enforcement Response Plan) [1] which are designed to assist in the identification of the steps to be followed by the Authority to address violations as referenced in § 110-41 above. Where the Authority's enforcement guidelines provide for no more than a telephone call or notice of violation, the Authority may, at its discretion, not assess a penalty. Notwithstanding the foregoing, the fact that the Authority's enforcement guidelines provide only that a telephone call or notice of violation be sent to the discharger shall not limit the Authority's right to impose a penalty where the Authority deems a departure from those guidelines appropriate.
[1]
Editor's Note: See Art. III of this chapter.
A. 
Assessing civil penalties for deterrence. In cases of violations of specific effluent limits set forth in an industrial waste discharge permit, commercial discharge permit or waste permit issued by the Authority and where the only consideration is deterrence, those dischargers may be assessed a civil penalty in accordance with the following formula:
[Amended 7-13-1998 by Res. No. 98-2]
Penalty = (Magnitude Factor) X (Duration Factor) X (Base Penalty)
(1) 
Magnitude factor. The magnitude factor shall be calculated by first determining the class of the effluent violation. The Authority has determined minor, significant and major class effluent violation concentrations (See Tables 1 and 2 attached [1]) for each of the regulated pollutants listed in § 110-10E and F of this chapter. Each of these classes of violations have a magnitude factor assigned to them as follows:
(a) 
Minor: 1.0.
(b) 
Significant: 2.5.
(c) 
Major: 10.0.
[1]
Editor's Note: Tables 1 and 2 are included at the end of this chapter.
(2) 
Duration factor. The duration factor is the number of days on which the violation takes place.
(3) 
Base penalty.
(a) 
The product of the civil penalty has been modified so that the product of the magnitude factor and the duration factor are multiplied by the following base penalty amounts:
[Amended 9-9-2002 by Res. No. 2-2002 [2]]
[1] 
Minor: $300.
[2] 
Significant: $400.
[3] 
Major: $500.
[4] 
In addition to any civil penalties that are assessed as a result of violations of the Authority-s rules and regulations, the following fees shall be charged:
[a] 
Accounting and administration fees: $100.
[2]
Editor's Note: This resolution also provided that these fees will take effect on 1-1-2003.
(b) 
The minimum penalty in these cases is $200.
B. 
Assessing other civil penalties. In all other cases civil penalties shall be assessed in accordance with the following formula:
Penalty = (Economic Benefit) + (Gravity Component) +/- (Adjustment)
(1) 
Economic benefit. The Authority shall calculate economic benefit of noncompliance using the Guidance Manual for POTW's to Calculate the Economic Benefit of Noncompliance (the "Guidance Manual"), United States Environmental Protection Agency, September 5, 1990, and any subsequent revisions with the following changes:
(a) 
Municipal tax rates for business corporations shall be as set forth in the Guidance Manual. The marginal tax rate for other entities and business corporations which do not pay federal or state income taxes shall be the sum of the highest rates payable by the persons who pay taxes on the income of those entities and corporations (if proved by the discharger), such sum not to exceed the rate for business corporations set forth in the Guidance Manual. Dischargers shall be permitted to rebut any of the foregoing presumptions.
(b) 
The annual inflation rate will be measured by the plant cost index, published in Chemical Engineering Magazine, unless the discharger demonstrates that another index would be more appropriate.
(2) 
Gravity component. The gravity component shall be calculated by the following formula:
Gravity Component = ($1,000.)(1 + A + B + C) where:
(a) 
A is a number from zero to five based as follows:
[1] 
Noneffluent violations: zero.
[2] 
Minor class effluent violation: one.
[3] 
Significant class effluent violation: 2.5.
[4] 
Major class effluent violation: 5.0.
(b) 
B is a number based as follows: Upon the effect on health/environment/POTW or other natural resources of the commonwealth and the uses of the same, and the costs of restriction and abatement; provided, however, that when the violation results, in significant harm or danger to health/environment/POTW, the number may be as high as necessary to cause the total penalty assessed to be the statutory maximum.
[1] 
No harm to health/environment/POTW: zero.
[2] 
Harm to health/environment/POTW: 5.0.
[3] 
Substantial harm or danger to health/environment/POTW: 10.0 or greater.
(c) 
C is a number from zero to five based as follows on duration of the violation:
[1] 
From one to five days: 1.0.
[2] 
From six to 30 days: 2.5.
[3] 
Greater than 30 days: 5.0.
(3) 
Adjustment factor. The adjustment factor shall be calculated by adding to the sum of the economic benefit and gravity component an amount from zero to 150% of that sum based on the history of prior violations of the discharger, failure to correct the violation and other aggravating factors and by subtracting from that sum an amount based on the discharger's inability to pay, actions to prevent recurrence and other mitigating factors.
A. 
In all cases, the civil penalty shall, at a minimum, be set so that it fully compensates the Authority for any damage or injury to the POTW, its employees, the POTW's biosolids or the environment. Any and all costs incurred by the Authority to correct or compensate for the damage or injury shall also be fully recovered in the civil penalty. Costs shall include but not be limited to attorney's fees, court costs, court reporter fees and other expenses associated with enforcement activities, as well as all sampling and monitoring expenses related to discovering, enforcing and maintaining the industrial user's compliance. Where violation of the pretreatment standards or requirements causes, either alone or in conjunction with a discharge or discharges from other sources, the Authority to violate any local, state or federal law or regulation, and the Authority is fined for this violation, the civil penalty assessed shall fully reimburse the Authority for the fine paid.
B. 
If a situation arises where the amount assessed under § 110-43A or B fails to fully compensate the Authority for all damages, costs and fines, then the Authority shall set the civil penalty by first calculating all damages, costs and fines to the Authority resulting from the violation, then adding the amount calculated by § 110-43A or B.