A.
In addition to proceeding under any other remedy available at law or in equity for violation of pretreatment standards and/or requirements, the Borough, as the operator of a POTW, may assess a civil penalty upon a person by issuance of an administrative order under § 323-44B, regardless of jurisdictional boundaries, for violation of any terms and provisions of this chapter. The penalty may be assessed whether or not the violation was willful or negligent. The civil penalty shall not exceed $25,000 per day for each violation. Each violation for each separate day shall constitute a separate and distinct offense.
B.
As part of any notice of assessment of civil penalties, the Borough
shall include a description of the applicable appeals process to be
followed, including the name, address and telephone number of the
person responsible for accepting such appeal on behalf of the Borough.
C.
For the purposes of this section, a single operational upset which
leads to simultaneous violations of more than one pretreatment standard
or requirement shall be treated as a single violation as required
by the Act.
D.
The POTW may also recover its costs for reestablishing the POTW in
addition to any civil penalty imposed under this section.
E.
The Borough may also recover reasonable attorneys' fees, court costs
and other expenses associated with enforcement activities, including
sampling and monitoring expenses, expert witness fees and the cost
of any actual damages incurred by the Borough.
F.
Civil penalty assessment policy. The Borough shall pass a resolution
setting forth a civil penalty assessment policy. The civil penalty
assessment policy will be made available for inspection at the Borough
offices.
All civil penalties collected pursuant to this section shall
be placed by the Borough in a restricted account and shall only be
used by the Borough and the POTW for the following uses:
A.
To repair damage and any additional maintenance needed or any additional
costs incurred as a result of the violation for which the penalty
was imposed;
B.
To pay any penalties imposed on the POTW by the federal or state
government for violation of its Permit;
C.
For the costs incurred by the POTW to investigate and take the enforcement
action that resulted in a penalty being imposed;
D.
For the monitoring of discharges to the POTW and for capital improvements
to the POTW, including sewage collection lines, which may be required;
and
E.
Any remaining funds may be used for improvements to the POTW, including
collection lines, conveyance facilities and pumping stations.
A.
A person assessed with a civil penalty and/or costs under the terms of this section shall have 30 days to pay the proposed amount in full, unless appealed pursuant to § 323-47 of this chapter. Failure to appeal within this period shall result in a waiver of all legal rights to contest the violation or the amount of the penalty and/or costs. In the absence of a timely appeal, a person failing to pay in full a civil penalty and/or costs within the allotted time may be subject to suspension of its discharge permit.
B.
The penalty authorized in this section is intended to be concurrent
and cumulative, and the provisions of this section shall not abridge
or alter any right of action or remedy, now or hereafter existing
in equity or under the common law or statutory law, criminal or civil,
available to a person, the Borough or the commonwealth. Nothing herein
shall preclude the Borough from seeking civil penalties in any court
proceeding to enforce this chapter.
