[Ord. 1840, 12/9/1996, § 701]
1.
Civil Penalty Assessment. In addition to proceeding under any other
remedy available at law or equity for violation of pretreatment standards
and/or requirements, the Borough may access a civil penalty upon the
user for the violation pursuant to the Publicly Owned Treatment Works
Penalty Law, Act No. 1992-9. The civil penalty shall not exceed $25,000
per day for each violation, regardless of jurisdictional boundaries.
Each violation for each separate day shall constitute a separate and
distinct offense under this chapter.
A.
The notice of any such civil penalties as described above shall include
a description of the applicable appeals process to be followed which
shall include the name, address and telephone number of the person
responsible for accepting such appeal.
B.
In civil penalty assessment, the Borough will consider all of the
following factors:
(1)
The damage to air, water, land or other natural resources of
the Borough and the surrounding municipalities.
(2)
Cost of restoration and abatement.
(3)
Cost savings, if any, by the industrial user as a result of
the violation.
(4)
Past violations, compliance history.
(5)
Industrial user's willingness to work with the WWTP.
(6)
Harm to the WWTP, POTW and its personnel.
(7)
Whether the violation resulted or could have resulted in an
NPDES Permit PA0025786 violation.
(8)
Whether the violation resulted or could have resulted in a violation
or restriction of the Borough WWTP's sludge disposal practices.
(9)
Magnitude of the violation.
(10)
Good faith effort by the industrial user, did the industrial
user respond to the notice of violation or the violation in a timely
manner; did the industrial user notify the Borough and did the industrial
user take the initiative in a quick and effective corrective action
to eliminate the noncompliance.
C.
The general civil assessment policy of the Borough is given in the
Borough's enforcement response plan that is approved by the United
States Environmental Protection Agency. Each industrial discharger
participating in the pretreatment program should be given a copy of
the policy. The fines assessed shall be maximum penalties, which the
Borough has the right to reduce or waive in certain circumstances.
D.
An industrial user charged with penalties shall have 30 days to pay
the proposed penalty in full or if the industrial user wishes to contest
the amount of the penalty or the fact of the violation, the individual
user must file an appeal pursuant to § 7 of the Publicly
Owned Treatment Works Penalty Law, Act No. 1992-9.
E.
Unpaid charges, fines and penalties shall, after 30 calendar days,
(in the absence of appeal) be assessed an additional penalty of 10%
of the unpaid balance and interest shall accrue thereafter at a rate
of 0.5% per month. A lien against the user's property will be sought
for unpaid charges, fines and penalties.
F.
All civil penalties collected pursuant to the Borough's civil penalty
assessment policy will be placed in a restricted account and shall
only be used by the Borough for the repair of the damage and any additional
maintenance or other costs resulting from the violation(s) on which
the penalty was imposed, to pay an penalties imposed on the Borough
by a State or Federal agency as a result of violating any pretreatment
standards for the costs incurred by the Borough to investigate and
initiate enforcement actions against noncomplying discharge (including
legal and engineering fees), for additional monitoring costs associated
with the noncomplying industrial user and for capital improvements
to the POTW required by the pretreatment program. Any remaining funds
may be used for capital improvements to the POTW not required by the
pretreatment program.
G.
Issuance of an administrative penalty shall not be a bar against
or a prerequisite for taking any other action against the user.
2.
Injunctive Relief.
A.
Where necessary, the Borough shall also have the power to obtain
injunctive relief against any industrial user in violation of a pretreatment
standard. Injunctive relief will be granted pursuant to Pennsylvania
law, if any of the following conditions can be determined to be true:
(1)
A discharge from an industrial user presents an imminent or
substantial danger to the environment.
(2)
A discharge from an industrial user causes the Borough to violate
any condition of its NPDES permit, sludge application standards or
other State or Federal requirement.
(3)
A discharge from an industrial user presents an imminent or
substantial danger to the Borough's POTW, Borough personnel or the
general public.
(4)
The industrial user has shown a lack of ability or intention
to comply with a pretreatment standard.
B.
Injunctive relief may also be issued against a noncomplying industrial
user if the Court determines that other enforcement actions available
to the Borough would not be adequate to affect prompt correction of
the condition of violation. In addition to injunctive relief, the
Borough may also be granted civil penalties as hereinbefore described
above.
C.
The Borough's power to seek injunctive relief against noncomplying
industrial users shall apply to all industrial users regardless of
political boundary. The injunctive relief may be sought in the court
of common pleas where the POTW is located, where the activity took
place, where the condition exists or the public was affected and,
to that end, jurisdiction is hereby conferred in law and equity upon
such courts.
3.
Right to Appeal. The industrial user charged with any penalty previously
described shall have 30 days to pay the proposed penalty, in full,
or, if the industrial user wishes to contest either the amount of
the penalty or the fact of the violation, the industrial user must
file an appeal of the action pursuant to Pa.C.S., Title 2. The industrial
user must formally write to the Borough Manager requesting an appeal
hearing, within Council Chambers. If an appeal has been submitted
to the Borough Manager, the Borough Manager shall initiate an appeal
hearing. The Borough Manager shall be considered the "judge" presiding
over the appeal hearing. The Borough Manager shall provide to the
Borough Council a recommendation on the appeal hearing. Borough Council
shall vote on the recommendation on the appeal hearing. Borough Council
shall vote on the recommendation by the Borough Manager or make their
own recommendation from the corresponding facts that were brought
out during the appeal hearing. Once a decision has been reached by
the Borough Council, the industrial user that appealed the initial
enforcement action must then abide by the decision that Borough Council
has made, unless the industrial user files and appeal as allowed by
law. If the industrial user fails to appeal within 30 days, the industrial
user has waived all rights to contest the violation or the penalty.
[Ord. 1840, 12/9/1996, § 702]
Any person who knowingly makes and false statements, representations
or certification in any application, record, report, plan or other
document filed or required to be maintained pursuant to this chapter
or wastewater contribution permit, or who falsifies, tampers with
or knowingly renders inaccurate any monitoring device or method required
under this chapter shall, upon conviction, be punished by a fine of
not more than $1,000 and, in default of payment of said fine and costs,
to a term of imprisonment for not more than 30 days.
[Ord. 1840, 12/9/1996, § 703]
The calculation of the civil penalty shall conform to this section:
A.
The violations of the pretreatment requirements are contained in
the civil penalty assessment schedule. Once a specific type of violation
has been identified, the Borough shall use the civil penalty assessment
schedule for fines to be issued to the specific industrial user in
violation. If the civil penalty assessment schedule does not contain
a specific violation that may be prudent to a penalty, the Borough
may determine a specific penalty and the Borough may request the United
States Environmental Protection Agency's approval.
B.
Within the civil penalty assessment schedule, the following are definitions
in regards to the headings:
(1)
The Satisfactory Level 1 shall be defined as, the industrial
user properly notified the Borough of the violation, demonstrated
sufficient evidence for the reason of the violation and made a major
effort to eliminate the violation.
(2)
The Satisfactory Level 2 shall be defined as, the industrial
user did not properly notify the Borough of the violation, demonstrated
sufficient evidence for the reason of the violation and made a major
effort to eliminate the violation.
(3)
The Unsatisfactory Level 3 shall be defined as, the industrial
user did not notify the Borough and demonstrated no evidence for the
reason of the violation and the industrial user did not make any efforts
to correct the noncompliance.
(4)
The Unsatisfactory Level 4 shall be defined as, the industrial
user did not notify the Borough, demonstrated no evidence for the
reason of the violation and the industrial user did not make any efforts
to correct the noncompliance.
C.
In any instance, the civil penalty assess shall exceed the economic
benefit of noncompliance gained by the industrial user as a result
of not complying with the pretreatment requirements. The economic
benefit of the noncompliance is that amount of both capital and operating
cost saved by the industrial user.
D.
In any instance, the civil penalty assessed shall, at a minimum,
be set so that it fully compensates the Borough for any harm associated
with the industrial user violation.
E.
Civil penalty assessment schedule. Refer to the table at the end
of this chapter.
[Ord. 1840, 12/9/1996, § 704]
Any nonindustrial user who violates the provisions of this chapter
shall be guilty of a summary offense and, upon conviction thereof,
shall be sentenced to pay a fine of not more than $1,000 and costs
and, in default of payment of said fine and costs, to undergo imprisonment
not to exceed 30 days. Each day during which any violation occurs
or continues to occur shall be a separate offense.
