When the general manager finds that a user has violated, or
continues to violate, a provision of this chapter, an individual wastewater
discharge permit or general permit or order issued hereunder, or any
other pretreatment standard or requirement, the general manager may
petition the Westmoreland Court through THTMA's attorney for
the issuance of a temporary or permanent injunction, as appropriate,
which restrains or compels the specific performance of the individual
wastewater discharge permit, the general permit, order, or other requirement
imposed by this chapter on activities of the user. The general manager
may also seek such other action as is appropriate for legal and/or
equitable relief, including a requirement for the user to conduct
environmental remediation. A petition for injunctive relief shall
not be a bar against, or a prerequisite for, taking any other action
against a user.
Any user who is found to have violated the provision, requirements,
or pretreatment standards of this chapter, the rules and regulations
of the Pennsylvania Department of Environmental Protection or the
Environmental Protection Agency, an order, rule, regulation, or permit
of THTMA or Hempfield Township, whether or not the violation is willful
or negligent, may be assessed a civil penalty in an amount not to
exceed $25,000 per day nor less than $1,000 per day for each violation,
regardless of jurisdictional boundaries. Each violation for each separate
day shall constitute a separate and distinct offense. THTMA or Hempfield
Township may recover its costs for reestablishing the operation of
the POTW, in addition to any civil penalty imposed hereunder. In addition,
THTMA or Hempfield Township may recover attorneys' fees, all
court costs, and all other expenses of litigation to the extent permitted
by law. In determining the amount of civil 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 of the violation, 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. Filing
a suit for civil penalties shall not be a bar against, or a prerequisite
for, taking any other action against a user.
A.
A user who willfully or negligently violates any provision of this
chapter, an individual wastewater discharge permit, or a general permit,
or order issued hereunder, or any other pretreatment standard or requirement
shall, upon conviction, be guilty of a misdemeanor, punishable by
a fine of not more than $25,000 per violation per day, or imprisonment
of not more than _____ years,[1] or both.
[1]
Editor's Note: So in original.
B.
A user who willfully or negligently introduces any substance into
the POTW which causes personal injury or property damage shall, upon
conviction, be guilty of a misdemeanor and be subject to a penalty
of at least $1,000, or be subject to imprisonment for not more than
_____ years,[2] or both. This penalty shall be in addition to any other
cause of action for personal injury or property damage available under
state law.
[2]
Editor's Note: So in original.
C.
A user who knowingly makes any false statements, representations,
or certifications in any application, record, report, plan, or other
documentation filed, or required to be maintained, pursuant to this
chapter, individual wastewater discharge permit, general permit, or
order issued hereunder, 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 $25,000 per violation, per day, or imprisonment for not
more than _____ years, or both.
D.
In the event of a second conviction, a user shall be punished by
a fine of not more than $25,000 per violation, per day, or imprisonment
for not more than _____ years or both.
The remedies provided for in this chapter are not exclusive.
The general manager may take, any, all, or a combination of these
actions against a noncompliant user. Enforcement of pretreatment violations
will generally be in accordance with THTMA's enforcement response
plan. However, the general manager may take other action against any
user when the circumstances warrant. Further, the general manager
is empowered to take more than one enforcement action against any
noncompliant user.
A.
This section constitutes the Civil Penalty Assessment Policy required
by the publicly owned treatment works Penalty Law (herein "Penalty
Law") Act No. 9 of 1992, 35 P.S. § 752.1 et seq. When making
determinations of the level of enforcement, Hempfield Township and/or
THTMA shall take into consideration the following:
(1)
Damage to air, water, land, or other natural resources and their
uses;
(2)
Costs of restoration and abatement;
(3)
Savings to the user as a result of the violation;
(4)
History of past violations; and
(5)
Deterrence of future violations; and
(6)
Other relevant factors as determined by Hempfield Township and/or
THTMA.
B.
A user must usually spend money to comply with pretreatment standards
and requirements. The user makes initial capital expenditures for
pretreatment, equipment, or process changes and incurs subsequent
operation, maintenance, and repair costs annually. By delaying or
avoiding these costs, the user realizes an economic advantage or benefit
over a competitor which complied with pretreatment requirements in
a timely manner. Thus the "economic benefit" of noncompliance is defined
as the difference between the cost of on-time compliance and delayed
compliance.
(1)
Economic benefits realized by the user which fails to comply by a
required deadline can be measured by;
(a)
The money that the user would expect to earn by delaying the
purchase of pretreatment equipment or implementation of process changes
and investing the money in more profitable projects.
(b)
The annual costs that the user avoids, and the expected return
on avoided costs, during the period of noncompliance.
(c)
Any competitive advantage the user may gain, such as increased
maker share over competitors already in compliance, because of cost
advantages attributed to delayed compliance.
(2)
In this chapter, the economic benefit calculation is focused on the
first two benefits. The Guidance Manual for POTW's to calculate
the Economic Benefit of Noncompliance, United States Environmental
Protection Agency, September 5, 1990, may be applied in calculating
the penalty.
C.
Consideration of the gravity and length of a violation is important
when determining the penalty amount. Removing the economic benefit
of noncompliance only places the violating user in the position it
would have been had it complied on time. Both deterrence and fundamental
fairness require that the civil penalty include an additional amount
to ensure that noncompliance is more costly than compliance, and Hempfield
Township and/or THTMA's policy will be to include such an amount.
D.
Recovering for damages to public facilities and/or natural resources.
(1)
Failure to comply with pretreatments standards and requirements may
cause damage to the collection system of Hempfield Township or THTMA.
Damage may also be caused to the natural environment. Therefore, an
additional purpose of penalties in pretreatment enforcement shall
be to recover for such damages. Specifically, Hempfield Township or
THTMA may determine to require that a violating user pay reparations
for any damage caused to the collection system by improper disposal
of pollutants. Such a user may also be required to pay for replacement
of equipment, facilities, and/or other damaged processes at the POTW
caused by pollutant interference.
(2)
Pollutants which pass through or interfere with POTW process may
cause damage to natural systems in receiving waters. In addition to
assessing penalties to recover for such damages, Hempfield Township
or THTMA may consider requiring mitigation and remediation programs.
(3)
Hempfield Township and/or THTMA will consider assessing high penalties
for violations resulting in actual or potential harm to the environment.
Such potential environmental harm occurs whenever a user discharges
a pollutant into the Sewer System that:
E.
Cost of restoration and abatement. Some violations may be negative
impacts on the POTW itself. For example, such violations may result
in significant increases in treatment costs, interference, harm POTW
personnel, equipment, processes, or operations, or cause sludge contamination,
resulting in increased disposal costs. When a user's noncompliance
harms the POTW, Hempfield Township or THTMA will assess a larger penalty.
F.
Savings to the user as a result of violation. A user which fails
to comply with pretreatment standards and requirements in a timely
manner may accrue a significant economic benefit. A penalty assessed
against the violator will be fixed at a level to at least negate this
economic benefit and make it unprofitable for the user to ignore or
violate pretreatment requirements. These requirements include installation
of pretreatment equipment, one-time expenditures (e.g., land), and
operation and maintenance (O&M) or other annual costs. The economic
benefit calculation described in this chapter will be applied to any
or all types of pollution control costs.
G.
History of past violation.
(1)
Hempfield Township or THTMA will consider each violation in assessing
the significance of user noncompliance. Violations of average effluent
limitations will be considered a violation for each day of the averaging
period. Therefore, a monthly average violation will be counted as
30 days of violation, and weekly average violation as seven days of
violation, and a four-day average should be counted as four violations.
Violations of different parameters at the same discharge point or
outfall are counted separately. The amount of the penalty will be
increased as the number of violations increases. However, as provided
in the Penalty Law, a single operational upset shall only be considered
as one violation, even though it may result in simultaneous violations
of more than one pretreatment standard.
(2)
Hempfield Township or THTMA shall consider increasing penalty amounts
for continuing, long-term violations. Generally, a long-term violation
is one that continues for three or more consecutive months. In addition,
penalties will be higher for violations that have continued for three
years than for violations that have only occurred for six months.
(3)
Significant non-effluent violations will be considered in assessing
penalties. Violations included in this category include failure to
report, late reporting, schedule violations, failure to implement
an approved pretreatment program, laboratory analysis deficiencies,
unauthorized discharge, operation and maintenance (O & M) deficiencies,
and sludge-handling violations.
(4)
Hempfield Township or THTMA will consider increasing the penalty
amount when the violating user appears to be acting in "bad faith"
(e.g., by not cooperating with Hempfield Township or THTMA in effecting
a timely correction of the violation); when the user experiences unjustified
delays in preventing, correcting, or mitigating violation; when the
user has already violated prior administrative orders, compliance
agreement, or consent decrees; or when the user fails to provide timely
and full information. This recalcitrance factor also may be increased
during negotiation if the user continues to resist efforts to settle.
(5)
When a user demonstrates that it is unable to pay a settlement penalty,
Hempfield Township or THTMA will independently evaluate the user's
ability to pay. When it is determined that the user cannot afford
to pay the penalty or that payment of all or part of the penalty will
preclude the violator from achieving compliance, Hempfield Township
or THTMA may consider other options. For example, Hempfield Township
or THTMA may consider an installment payment plan with the user paying
interest. Only as a last recourse Hempfield Township or THTMA may
consider reducing the penalty amount. If the user's behavior
has been exceptionally culpable, recalcitrant, or threatening to human
health and the environment, inability to pay will be disregarded.
H.
Deterrence of future violations.
(1)
A user shall install the appropriate pollution control equipment
to comply with applicable pretreatment regulations, maintaining compliance
required continuing O & M and other annual expenditures. For users
which fail to comply with pretreatment requirements, Hempfield Township
or THTMA will set its penalties at a level to remove, at a minimum,
the economic benefit from avoided annual costs during its period of
violations. Hempfield Township or THTMA hereby determines that assessing
a penalty which as a minimum eliminates the economic benefit of noncompliance
(or makes noncompliance more expensive than compliance) will encourage
users to remain in compliance.
(2)
The intent of these penalties is to deter noncompliance so that pollutant
discharges by a user do not have significant negative impacts of the
POTW, collection system, or receiving waters. Hempfield Township or
THTMA's policy will be not to assess a penalty that is too small
(e.g., less than the economic benefit of noncomplying), so that the
violating user and other users may determine that noncompliance is
more expensive than compliance.
(3)
The EPA or DEP can take enforcement action against a user violating
the Clean Water Act, including federal pretreatment standards and
regulations. Citizens or citizen groups can also bring civil suits
against a user for violating environmental regulations. If the violating
user has been sued by the EPA, state regulatory agency, or citizens
or citizen groups, and penalties were imposed upon the user from these
actions, Hempfield Township or THTMA may consider reducing the penalty
by an amount equal to that which the user already paid for the same
violation.
I.
Other relevant factors.
(1)
In order to treat all users fairly and equitably, Hempfield Township
or THTMA will use its best efforts to assess penalties using a consistent
methodology. Thus, it will avoid allowing one user to realize an economic
benefit from noncompliance which would potentially enable it to gain
an economic benefit, Hempfield Township or THTMA will strive to eliminate
or remove any financial advantage the violator gains.
(2)
By exercising a consistent penalty methodology, Hempfield Township
or THTMA ensure that all violators are treated equitably. While the
amount of the penalty may vary from case to case, the methods used
to develop the penalty will be consistent.
Any person who knowingly makes any false statements, representation
or certification in any application, record, report, plan or other
document filed or required to be maintained pursuant to this chapter,
or pretreatment 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 or by imprisonment for not more than 30 days, or by both.
Each occurrence shall be a separate offense. This section shall not
preclude prosecution under the Pennsylvania Crimes Code.
The remedies provided for in this chapter are intended to be
concurrent and cumulative, and the provisions of this chapter shall
not abridge or alter any right of action or remedy, now or hereafter
existing in law, or under the common law or statutory law, criminal
or civil, available to Hempfield Township or THTMA.
The industrial user charged with the penalty shall have 30 days
to pay the proposed penalty in full, or if the industrial user wishes
to contest wither the amount of the penalty, or the fact of the violation,
the industrial user must file an appeal of the action pursuant to
the municipal law or home rule character or, in the absence of either
of these, within 30 days, pursuant to 2 Pa. C.S.A. (relating to administrative
law and procedure). Failure to appeal within this period shall result
in a waiver of all legal rights to contest the violation or amount
of the penalty.
