[1]
Editor's Note: This article is under review by NYSDEC and
may be revised following review. The Municipal Attorney or officer
responsible for drafting this chapter should carefully review the
provisions in this article of the model and make any suitable adjustments
to maintain consistency with local and state law.
A.
The Superintendent 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 Superintendent will investigate instances of
noncompliance.
(2)
Describe the types of escalated enforcement actions that the
Superintendent will take in response to all anticipated types of user
violations and the time periods within which to initiate and follow-up
these actions.
(3)
Adequately reflect the Town of Elma Board'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.
The range of appropriate enforcement actions shall be based on the
nature and severity of the violation and other relevant factors, such
as: magnitude of the violation, duration of the violation, effect
of the violation on the receiving water, effect of the violation on
the POTW, effect of the violation on the health and safety of the
POTW employees, compliance history of the user, good faith of the
user, and shall promote consistent and timely use of enforcement remedies.
E.
The Town of Elma Board shall approve the enforcement response plan.
The enforcement response plan shall be reviewed at least every five
years.
[Added 12-19-2007 by L.L.
No. 3-2007]
This article shall not apply to violations of Article XV of this chapter, which shall be enforced as provided for therein.
Whenever the Superintendent 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 Superintendent may serve upon such person a written notice stating
the nature of the violation. Within 10 calendar days of the date the
Superintendent mails the notice, an explanation of the violation and
a plan for the satisfactory correction and prevention thereof shall
be submitted to the Superintendent 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 Superintendent 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 Superintendent 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 reoccurrence 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 Superintendent to modify or suspend the order. Such petition shall
be in written form and shall be transmitted to the Superintendent
by registered mail. The Superintendent 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 Superintendent's
notice of such fine, petition the Superintendent to modify or suspend
the order. Such petition shall be in written form and shall be transmitted
to the Superintendent by registered mail. The Superintendent shall
then:
A.
When the Superintendent finds that a user has violated or continues
to violate this chapter or any permit or administrative order issued
hereunder, the Superintendent 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 Superintendent
mails notification of such order, petition the Superintendent to modify
or suspend the order. Such petition shall be in written form and shall
be transmitted to the Superintendent by registered mail. The Superintendent
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 or conditions of an administrative
order;
(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; or
(5)
Failure to pay administrative fines, fees or user charges. Noncompliant
industrial users will be notified, by registered mail, of the proposed
termination of their wastewater permit.
B.
The user may, within 15 calendar days of the date the Superintendent
mails such notification, petition the Superintendent to permit continued
use of the POTW by the user: Such petition shall be in written form
and shall be transmitted to the Superintendent by registered mail.
The Superintendent 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
Superintendent to reconnect water supply service. Such petition shall
be in written form and shall be transmitted to the Superintendent
by registered mail. The Superintendent shall then:
A.
The Superintendent may order any user appealing administrative remedies for violations of this chapter to show cause, before the Town of Elma Board, why an enforcement action, initiated by the Superintendent, 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 Town of Elma Board 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 Town of Elma Board 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 § 115-131 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. The notice of the hearing shall be served at least 10 calendar days before the hearing, in accordance with § 115-131.
B.
The Town of Elma Board may itself conduct the hearing, or may designate
any of its members or any officer or employee of the Town of Elma
to conduct the hearing:
(1)
Issue, in the name of the Town of Elma Board, 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; and
(4)
Transmit a report of the evidence and hearing, including transcripts
and other evidence, together with recommendations to the Town of Elma
Board for action thereon.
C.
After the Town of Elma Board has reviewed the evidence and testimony,
it may order the user to comply with the Superintendent's order or
fine, modify the Superintendent's order or fine, or vacate the Superintendent's
order or fine.
In the event the Superintendent 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 Superintendent, as provided in appropriate
sections of this article, the user shall be deemed in default and
its rights to contest the administrative order or the fine shall be
deemed waived.
The notices, orders, petitions, or other notification which
the user or Superintendent 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 Town of Elma's POTW. Any notice, petition, or other communication
mailed to the Superintendent shall be addressed and mailed to the
Town of Elma Hall of the Town of Elma.
The Superintendent shall have the right, within the Superintendent's
sole discretion, to utilize any one or more appropriate administrative
remedies set forth in this article. The Superintendent may utilize
more than one administrative remedy established pursuant to this article,
and the Superintendent 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 Superintendent promulgated under this chapter,
or the terms of any permit issued hereunder, shall be liable to the
Town of Elma 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 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 Town of Elma Attorney,
or his designated attorney, at the request of the Superintendent in
the name of the Town of Elma, in any court of competent jurisdiction
giving preference to courts local to the Town of Elma. In addition
to the above described penalty, the Superintendent may recover all
damages incurred by the Town of Elma 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 Superintendent promulgated under this chapter, or the terms
of any permit issued hereunder. In addition to the above-described
damages, the Superintendent may recover all reasonable attorney's
fees incurred by the Town of Elma in enforcing the provisions of this
article, including reasonable attorney's fees incurred in any action
to recover penalties and damages, and the Superintendent 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 Superintendent
before the matter has been referred to the Town of Elma Attorney,
and where such matter has been referred to the Town of Elma Attorney,
any such penalty may be released or compromised and any action commenced
to recover the same may be settled and discontinued by the Town of
Elma Attorney, with the consent of the Superintendent.
A.
In addition to the power to assess penalties as set forth in this
article, the Superintendent shall have the power, following the hearing
held in conformance with the procedures set forth in this article,
to seek an order:
B.
Any such court order shall be sought in an action brought by the
Town of Elma Attorney, at the request of the Superintendent, in the
name of the Town of Elma, in any court of competent jurisdiction giving
precedence to courts local to the Town of Elma.
C.
The Town of Elma Attorney, at the request of the Superintendent,
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 Superintendent
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 Superintendent,
through counsel may petition the court, in the name of the Town of
Elma, 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 Superintendent.
A.
Notwithstanding any inconsistent provisions of this chapter, whenever
the Superintendent finds, after investigation, that any user is causing,
engaging in, or maintaining a condition or activity which, in the
judgment of the Superintendent, 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 Superintendent 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 Superintendent may take all appropriate action
to abate the violating condition. As promptly as possible thereafter,
not to exceed 15 calendar days, the Superintendent 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 Town of
Elma the right of summary abatement to discontinue, abate, or alleviate
conditions or activities shall be those prescribed in the intermunicipal
agreement.
C.
The Superintendent, 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 Town of Elma,
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 Town
of Elma, 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 Superintendent
shall report the names of the defaulting persons to the Town of Elma
Supervisor, the Town of Elma Clerk, the Town of Elma Chief Assessor,
and the Town of Elma Treasurer on or before December 15 of the same
year. The Town of Elma Chief 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 Town
of Elma in the next succeeding year, and the Town of Elma Chief Assessor
is directed to collect the same in the same manner as real property
taxes due and owing to the Town of Elma are collected.
C.
Where charges are delinquent and the violator is not a resident of
the Town of Elma, or is located outside the geographical boundaries
of the Town of Elma, then the Town of Elma attorney 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 Superintendent 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 Superintendent to be necessary
to achieve consistent compliance.
The Superintendent 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 Superintendent 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 Superintendent 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 Superintendent shall provide public notification in the
daily newspaper with the largest circulation in the Town of Elma 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 Town
of Elma.
B.
Existing contracts for the sale of goods or services to the Town
of Elma held by a user found to be in significant violation with pretreatment
standards may be terminated at the discretion of the Town of Elma
Board.
