Borough of Hanover, PA Penalty Assessment for Violation of Pretreatment Standards

The purpose of this policy is to establish procedures whereby the Borough of Hanover may directly levy civil penalties in a manner consistent with the Pennsylvania Penalty Law for Publicly Owned Treatment Works.

§ A403-2 Method of determination.

The following is the basis for determining an administrative or civil penalty to be issued by the Borough of Hanover for violation(s) of pretreatment standards and/or requirements. The maximum fine to be assessed is $25,000 per day, per violation. Each day that a violation shall continue will be considered as a separate violation.

The formula for calculation of an assessment is as follows:

Fine = (C_vf + 1,000 E_vf + 1,000 A_vf) (1.0 + B_vf + D_vf) ± F_vf

Where:
	A_vf	=	Value factor assessed for damage to air, water, land or other natural resources and their uses
	B_vf	=	Value factor assessed for the magnitude of the cost of restoration
	C_vf	=	Savings to the violator as a consequence of the violation
	D_vf	=	Value factor assessed for the history of past violations
	E_vf	=	Value factor assessed for the deterrence of future violations
	F_vf	=	Value factor assessed for other relevant factors

(1)

The value factor for A_vf shall be a value between one and a value that results in the statutory maximum penalty. This value may be applied to each month in which one or more violations present actual harm to human health or to the environment. If no actual harm is incurred, this factor is zero. Where evidence of actual harm to human health exists, a factor from 10 to a value which results in the statutory maximum penalty should be assessed. Where the identified impact relates only to the environment, a factor from one to 10 should be used.

(2)

The magnitude of the cost of restoration shall be determined on a case-by-case basis. The value may range from zero to a number high enough to increase the penalty by 150%.

(3)

Savings to the violator shall be based on the benefit gained from delaying expenditures and avoiding costs. This shall be determined on a case-by-case basis. A comparison of costs that should have been incurred, from the start of noncompliance to achieve compliance, versus present value shall be made.

(4)

Based on the history of violations, including the recalcitrance of the defendant, the value for this factor may range from zero (good compliance, active cooperation in remedying the violation), to a factor that will result in a 150% increase in the penalty (bad faith, unjustified delay in preventing, correcting or mitigating violations, violations of prior administrative orders or consent decrees, failure to provide timely and full information, etc.). Significance of the violation will be taken into account. Pollutants classified as conventional shall have a minimum factor of one; pollutants classified as toxic shall have a minimum factor of two. The classification of pollutants shall be consistent with the definitions outlined in the Federal Water Pollution Control Act (the Act).[1] Toxic pollutants shall be those listed and designated pursuant to Section 307(a)(1) of the Act. Conventional pollutants shall be those listed and designated pursuant to Section 304(a)(4) of the Act.

[1]

Editor's Note: See 33 U.S.C. § 1251 et seq.

(5)

Deterrence factor.

(a)

The value factor assessed for the deterrence of future violations shall be calculated for each month in which a violation is present. It shall be based on the value assigned for the percent the pollutant exceeds the permit limitation. A distinction is made between the conventional pollutants [Section 304(a)(4) of the Act], and toxic pollutants [Section 307(a)(1) of the Act].

Percent Exceedance	Toxic	Conventional
0 to 20	0 to 2	0 to 1
21 to 40	1 to 3	1 to 2
41 to 100	2 to 5	2 to 4
101 or more	3 to 7	3 to 5

(b)

The value added shall be the highest value based upon assessment of each of the permit limitations exceeded in each month.

(6)

The value factor for F shall consist of all other factors of the violation which have not been addressed in this policy. This factor may be a basis for increasing or decreasing the amount of the penalty. The duration of noncompliance for violations of the same parameter may be accounted for under this factor, with a value from zero to five.

§ A403-3 Notice of fine.

The penalty assessment determined in accordance with this policy shall be assessed on the user in the form of a notice of fine. The date payable shall be 30 days from the date of receipt by the user. The fine is payable directly to the Borough of Hanover. The user may appeal the fine in accordance with the most recent edition of the Borough of Hanover's Fine Assessment Appeal Policy.

§ A403-4 Consent penalty.

A consent penalty may be negotiated between the defendant and the Borough in lieu of the penalty assessment fine. Negotiated penalties may be less than that of the original assessment as determined on a case-by-case basis. Consent penalties shall be incorporated into binding and enforceable compliance agreements negotiated to achieve timely and effective correction of the violation. All compliance agreements shall stipulate further penalties for breach of any terms of the agreement. As consent penalties are negotiated, all consent penalties agreements shall provide for the user to knowingly and explicitly waive its right pursuant to 35 P.S. § 752.7(b) or other applicable authority, whether in law or equity, to appeal or otherwise contest the violation, the amount of the penalty or any provision of the consent penalty agreement entered into by the user.

§ A403-5 Construal of provisions.

In addition to the penalties and assessments contained herein, nothing in this policy is to be construed as precluding any other action or remedy available, in equity or at law, to any person, legal entity or governmental entity.

§ A403-6 Maximum penalty.

The maximum penalty that may be issued hereunder shall not exceed $25,000 per day. Each day that a violation shall continue shall be deemed a separate violation.