A.
The Director of Public Works shall prepare an enforcement response
plan. The enforcement response plan, in a step-by-step fashion, shall
outline the procedures to be followed to identify, document, and respond
to violations by users of the POTW. All violations by users of the
POTW shall be met with some type of enforcement response. The response
shall be comprehensive and effective.
B.
The enforcement response plan shall:
(1)
Describe how the Director of Public Works will investigate instances
of noncompliance;
(2)
Describe the types of escalated enforcement actions that the Director
of Public Works will take in response to all anticipated types of
user violations and the time periods within which to initiate and
followup these actions;
(3)
Identify (by title) the official(s) responsible for each type of
response;
(4)
Adequately reflect the City Council's responsibility to enforce
all applicable standards and requirements.
C.
The enforcement response plan shall contain:
(1)
Criteria for scheduling periodic inspection and/or sampling visits
to POTW users.
(2)
Forms and guidelines for documenting compliance data in a manner
which will enable the information to be used as evidence.
(3)
Systems to track due dates, compliance schedule milestones, and pending
enforcement actions.
(4)
Criteria, responsible personnel, and procedures to select and initiate
an enforcement action.
D.
E.
The City Council shall approve the enforcement response plan by resolution.
Whenever the Director of Public Works finds that any user has
violated or is violating this chapter, or any wastewater discharge
permit, order, prohibition, limitation, or requirement permitted by
this chapter, the Director of Public Works shall serve upon such person
a written notice stating the nature of the violation. Within 10 calendar
days of the date the Director of Public Works mails the notice, an
explanation of the violation and a plan for the satisfactory correction
and prevention thereof shall be submitted to the Director of Public
Works, by the user. The correction and prevention plan shall include
specific actions. Submission of this plan in no way relieves the user
of liability for any violations caused by the user before or after
receipt of the notice of violation.
The Director of Public Works is hereby empowered to enter into
consent orders, assurances of voluntary compliance, or other similar
documents establishing an agreement with the user responsible for
the noncompliance. Such orders shall include specific action to be
taken by the user to correct the noncompliance within a time period
also specified by the order. Consent orders shall have the same force
and effect as an administrative order.
A.
When the Director of Public Works finds that a user has violated
or continues to violate this chapter or a permit or administrative
order issued thereunder, he may issue an administrative order to the
user responsible for the discharge directing that, following a specified
time period, sewer service shall be discontinued, severed and abated
unless the violation is corrected and that there is no recurrence
of the violation. Administrative orders may also contain such other
requirements as might be reasonably necessary and appropriate to address
the noncompliance, including the installation of pretreatment technology,
additional self-monitoring, and management practices.
B.
The user may, within 15 calendar days of receipt of such order, petition
the Director of Public Works to modify or suspend the order. Such
petition shall be in written form and shall be transmitted to the
Director of Public Works by registered mail. The Director of Public
Works shall then:
A.
Notwithstanding any other section of this chapter, any user who is
found to have violated any provision of this chapter, or a wastewater
discharge permit or administrative order issued hereunder, shall be
fined in an amount not to exceed $1,000 per violation. Each day on
which noncompliance shall occur or continue shall be deemed a separate
and distinct violation.
B.
The user may, within 15 calendar days of notification of the Director
of Public Works's notice of such fine, petition the Director
of Public Works to modify or suspend the order. Such petition shall
be in written form and shall be transmitted to the Director of Public
Works by registered mail. The Director of Public Works shall then:
A.
When the Director of Public Works finds that a user has violated
or continues to violate this chapter or any permit or administrative
order issued hereunder, the Director of Public Works may issue an
administrative order to cease and desist all such violations and direct
those persons in noncompliance to:
B.
The user may, within 15 calendar days of the date the Director of
Public Works mails notification of such order, petition the Director
of Public Works to modify or suspend the order. Such petition shall
be in written form and shall be transmitted to the Director of Public
Works by registered mail. The Director of Public Works shall then:
A.
Any user who violates the following conditions of this chapter or
a wastewater discharge permit or administrative order, or any applicable
or state and federal law, is subject to permit termination:
(1)
Violation of permit conditions.
(2)
Failure to accurately report the wastewater constituents and characteristics
of its discharge.
(3)
Failure to report significant changes in operations or wastewater
constituents and characteristics.
(4)
Refusal of reasonable access to the user's premises for the
purpose of inspection, monitoring, or sampling.
B.
Noncompliant industrial users will be notified, by registered mail,
of the proposed termination of their wastewater permit.
C.
The user may, within 15 calendar days of the date the Director of
Public Works mails such notification, petition the Director of Public
Works to permit continued use of the POTW by the user. Such petition
shall be in written form and shall be transmitted to the Director
of Public Works by registered mail. The Director of Public Works shall
then:
A.
Whenever a user has violated or continues to violate the provisions
of this chapter or an order or permit issued hereunder, water service
to the user may be severed and service will only recommence, at the
user's expense, after it has satisfactorily demonstrated its
ability to comply.
B.
The user may, within 15 calendar days of severance, petition the
Director of Public Works to reconnect water supply service. Such petition
shall be in written form and shall be transmitted to the Director
of Public Works by registered mail. The Director of Public Works shall
then:
A.
The Director of Public Works may order any user appealing administrative remedies for violations of this chapter to show cause, before the City Manager, why an enforcement action, initiated by the Director of Public Works, should not be taken. A notice shall be served on the user specifying the time and place of a hearing to be held by the City Manager regarding the violation, the reasons why the action is to be taken, the proposed enforcement action, and directing the user to show cause before the City Manager why the proposed enforcement action should not be taken. The notice of the hearing shall be served at least 10 calendar days before the hearing in accordance with § 567-83 of this article. Service shall be made on any principal or executive officer of a user's establishment or to any partner in a user's establishment.
B.
The City Manager may conduct the hearing, or may designate any of
the City's members or any officer or employee of the City to
conduct the hearing with the authority to:
(1)
Issue, in the name of the City, notices of hearings requesting the
attendance and testimony of witnesses, and the production of evidence
relevant to any matter involved in such hearings;
(2)
Take the evidence;
(3)
Take sworn testimony;
(4)
Transmit a report of the evidence and hearing, including transcripts
and other evidence, together with recommendations to the City Manager
for action thereon.
C.
After the City Manager has reviewed the evidence and testimony, it
may order the user to comply with the Director of Public Works'
order or fine, modify the Director of Public Works' order or
fine, or vacate the Director of Public Works' order or fine.
In the event the Director of Public Works issues any administrative
order, terminates the user's permit, or makes any fine as set
forth in this article, and the user fails, within the designated period
of time set forth, to petition the Director of Public Works, as provided
in appropriate sections of this article, the user shall be deemed
in default and its rights to contest the administrative order or fine
shall be deemed waived.
The notices, orders, petitions, or other notification which
the user or Director of Public Works shall desire or be required to
give pursuant to any sections of this chapter shall be in writing
and shall be served personally or sent by certified mail or registered
mail, return receipt requested, postage prepaid, and the notice, order,
petition, or other communication shall be deemed given upon its mailing
as provided herein. Any notice, administrative order, or communication
mailed to the user pursuant to the sections of this chapter shall
be mailed to the user where the user's effluent is discharged
into transmission lines to the City's POTW. Any notice, petition,
or other communication mailed to the Director of Public Works shall
be addressed and mailed to the Hurley Building, 25 Saltonstall Street,
Canandaigua, NY.
The Director of Public Works shall have the right, within the
Director of Public Works' sole discretion, to utilize any one
or more appropriate administrative remedies set forth in this article.
The Director of Public Works may utilize more than one administrative
remedy established pursuant to this article, and may hold one show
cause hearing combining more than one enforcement action.
A.
Any person who violates any of the provisions of or who fails to
perform any duty imposed by this chapter, or any administrative order
or determination of the Director of Public Works promulgated under
this chapter, or the terms of any permit issued hereunder, shall be
liable to the City for a civil penalty not to exceed $1,000 for each
such violation, to be assessed after a hearing (unless the user waives
the right to a hearing) held in conformance with the procedures set
forth in this article. Each violation shall be a separate and distinct
violation, and in the case of continuing violation, each day's
continuance thereof shall be deemed a separate and distinct violation.
Such penalty may be recovered in an action brought by the City Corporation
Counsel, or his designated attorney, at the request of the Director
of Public Works in the name of the City, in any court of competent
jurisdiction giving preference to courts local to the City. In addition
to the above-described penalty, the Director of Public Works may recover
all damages incurred by the City from any persons or users who violate
any provisions of this chapter, or who fail to perform any duties
imposed by this chapter or any administrative order or determination
of the Director of Public Works promulgated under this chapter, or
the terms of any permit issued hereunder. In addition to the above-described
damages, the Director of Public Works may recover all reasonable attorneys'
fees incurred by the City in enforcing the provisions of this article,
including reasonable attorney's fees incurred in any action to
recover penalties and damages, and the Director of Public Works may
also recover court costs, and other expenses associated with the enforcement
activities, including sampling and monitoring expenses.
B.
In determining the amount of civil penalty, the court shall take
into account all relative circumstances, including, but not limited
to, the extent of harm caused by the violation, the magnitude and
duration, any economic benefit gained through the user's violation,
corrective actions by the user, the compliance history of the user,
and any other relative factors as justice may require.
C.
Such civil penalty may be released or compromised by the Director
of Public Works before the matter has been referred to the City Corporation
Counsel, and where such matter has been referred to the City Corporation
Counsel, any such penalty may be released or compromised and any action
commenced to recover the same may be settled and discontinued by the
City Corporation Counsel, with the consent of the Director of Public
Works.
A.
In addition to the power to assess penalties as set forth in this
article, the Director of Public Works shall have the power, following
the hearing held in conformance with the procedures set forth in this
article, to seek an order:
(1)
Suspending, revoking, or modifying the violator's wastewater
discharge permit; or
(2)
Enjoining the violator from continuing the violation. Any such court
order shall be sought in an action brought by the City Corporation
Counsel, at the request of the Director of Public Works, in the name
of the City, in any court of competent jurisdiction giving precedence
to courts local to the City.
B.
The City Corporation Counsel, at the request of the Director of Public
Works, shall petition the court to impose, assess, and recover such
sums imposed according to this article. In determining amount of liability,
the court shall take into account all relevant circumstances, including,
but not limited to, the extent of harm caused by the violation, the
magnitude and duration, any economic benefit gained through the user's
violation, corrective actions by the user, the compliance history
of the user, and any other factor as justice requires.
A.
Any person who willfully violates any provision of this chapter or
any final determination or administrative order of the Director of
Public Works made in accordance with this article shall be guilty
of a Class A misdemeanor, and upon conviction thereof, shall be punished
by a fine of not less than $500 nor more than $1,000, or imprisonment
not to exceed one year, or both. 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.
Any user who knowingly makes any false statements, representations,
or certifications in any application, record, report, plan or other
document filed or required to be maintained pursuant to this chapter,
or wastewater permit, or who falsifies, tampers with, or knowingly
renders inaccurate any monitoring device or method required under
this chapter shall be guilty of a Class A misdemeanor and, upon conviction,
shall be punished by a fine of not more than $1,000 per violation
per day or imprisonment for not more than one year, or both.
C.
No prosecution under this section shall be instituted until after
final disposition of a show cause hearing, if any, was instituted.
Whenever a user has violated or continues to violate the provisions
of this chapter or permit or order issued hereunder, the Director
of Public Works, through counsel, may petition the Court, in the name
of the City, for the issuance of a preliminary or permanent injunction,
or both (as may be appropriate), which restrains the violation of,
or compels the compliance with, any order or determination thereunder
by the Director of Public Works.
A.
Notwithstanding any inconsistent provisions of this chapter, whenever
the Director of Public Works finds, after investigation, that any
user is causing, engaging in, or maintaining a condition or activity
which, in the judgment of the Director of Public Works, presents an
imminent danger to the public health, safety, or welfare, or to the
environment, or is likely to result in severe damage to the POTW or
the environment, and it therefore appears to be prejudicial to the
public interest to allow the condition or activity to go unabated
until notice and an opportunity for a hearing can be provided, the
Director of Public Works may, without prior hearing, order such user
by notice, in writing wherever practicable or in such other form as
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;
or where the giving of notice is impracticable, or in the event of
a user's failure to comply voluntarily with an emergency order,
the Director of Public Works may take all appropriate action to abate
the violating condition. As promptly as possible thereafter, not to
exceed 15 calendar days, the Director of Public Works shall provide
the user an opportunity to be heard, in accordance with the provisions
of this article.
B.
If the user is not within the geographic boundaries of the City,
the right of summary abatement to discontinue, abate, or alleviate
conditions or activities shall be those prescribed in the intermunicipal
agreement.
C.
The Director of Public Works, acting upon the belief that an emergency
exists, shall be indemnified against any personal liability that may
arise in the performance of his duties to protect the public health,
safety, or welfare, or to preserve the POTW or the environment.
A.
If there shall be any payments which are due to the City, or any
department thereof, pursuant to any article or section of this chapter,
which shall remain due and unpaid, in whole or in part, for a period
of 20 calendar days from the date of billing by the City, the same
shall constitute a default, and there shall be added to the entire
amount of the original bill, a penalty equal to 20% of the original
bill, and interest shall accrue on the unpaid balance, at the rate
of 2% per month, retroactive to the date of the original billing.
B.
In the event that there are any sewer taxes, assessments, or other
service charges which shall have been delinquent for a period of at
least 60 calendar days as of December 15 of any year, the Director
of Public Works shall report the names of the defaulting persons to
the City Manager, the City Clerk, the City Assessor, and the City
Treasurer on or before December 15 of the same year. The City Assessor
is hereby directed to add the entire amount of the sewer tax, assessment,
or other service charge which shall be in default, plus penalty and
interest, as provided for in this chapter, to the real property taxes
due and owing to the City in the next succeeding year, and the City
Clerk/Treasurer is directed to collect the same in the same manner
as real property taxes due and owing to the City are collected.
C.
Where charges are delinquent and the violator is not a resident of
the City, or is located outside the geographical boundaries of the
City, then the City Corporation Counsel is authorized to seek recovery
of charges, including punitive damages, in a court of competent jurisdiction
or make arrangements with the appropriate county where the user is
located to add the amount of the sewer assessment or other charges
which shall be in default, plus penalty and interest, as provided
for in the law, to the real property taxes due to the county in the
next ensuing year.
The Director of Public Works may decline to reissue a permit
to any user which has failed to comply with the provisions of this
chapter or any order or previous permit issued hereunder unless such
user first files with it a satisfactory bond, payable to the POTW,
in a sum not to exceed a value determined by the Director of Public
Works to be necessary to achieve consistent compliance.
The Director of Public Works may decline to reissue a permit
to any user which has failed to comply with the provisions of this
chapter or any order or previous permit issued hereunder, unless the
user first submits proof that it has obtained financial assurances
sufficient to restore or repair POTW damage caused by its discharge.
The Director of Public Works is authorized to pay up to $500
for information leading to the discovery of noncompliance by a user.
In the event that the information provided results in an administrative
fine or civil penalty levied against the user, the City Engineer is
authorized to disperse up to 10% of the collected fine or penalty
to the informant. However, a single reward payment may not exceed
$10,000, including the discovery reward.
The Director of Public Works shall provide public notification,
in the daily newspaper with the largest circulation in the City, of
users which were in significant noncompliance 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.
A.
Users which have not achieved consistent compliance with applicable
pretreatment standards and requirements are not eligible to receive
a contractual award for the sale of goods or services to the City.
B.
Existing contracts for the sale of goods or services to the City
held by a user found to be in significant violation with pretreatment
standards may be terminated at the discretion of the City Board.
