A.
The Town shall investigate instances of noncompliance with the industrial
pretreatment standards and requirements.
B.
The Town shall, as necessary, sample and analyze the wastewater discharges
of contributing users and conduct surveillance and inspection activities
to identify, independently of information supplied by such users,
occasional and continuing noncompliance with industrial pretreatment
standards. Each user will be billed directly for costs incurred for
analysis of its wastewater.
C.
(Reserved)
D.
Whenever the Director finds that any person, firm, corporation, municipal
subdivision, institution, or user has violated or is violating this
chapter, or a wastewater permit or order issued hereunder, the Director
or his agent may serve upon said offender written notice of the violation.
Within a time period specified in the violation notice, an explanation
of the violation and a plan for the satisfactory correction and prevention
thereof, to include specific required actions, shall be submitted
to the Director. The offender shall permanently cease all violations
and take such action as is recommended or necessary to insure that
there will be no recurrence of such violation.
E.
All such work in connection therewith shall be performed by the offender
without delay and without expense to the Town. Compliance with this
section in no way relieves the offender of liability for any violations
occurring before or after receipt of the notice of violation.
A.
Any person or user who has violated or continues to violate this chapter or any order or permit issued hereunder shall be liable to the Town, under the authority given at § 212-3, for a civil penalty of not more than $10,000 plus actual damages incurred by the POTW per violation per day for as long as the violation continues. In addition to the above described penalty and damages, the Director may recover reasonable attorney's fees, court costs, and other expenses associated with the enforcement activities, including sampling and monitoring expenses.
B.
The Director shall petition the Court to impose, assess, and recover
such sums. In determining the amount of liability, consideration shall
be given to 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 factors as justice requires.
C.
Any person or user who willfully or negligently violates any provision
of this chapter or any orders or permits issued hereunder shall, upon
conviction, be guilty of a violation, punishable by a fine not to
exceed $1,000 for each violation. Every separate provision violated
shall constitute a separate violation. Every day that a violation
occurs shall be deemed a separate violation.
The Director may require any user that has violated or continues
to violate any provision of this chapter, an industrial discharge
permit, or order issued hereunder, or any other pretreatment standard
or requirement, to develop a compliance schedule. A compliance schedule
pursuant to this section shall comply with the following conditions:
A.
The schedule shall contain progress increments in the form of dates
for the commencement and completion of major events leading to the
construction and operation of additional pretreatment required for
the user to meet the applicable pretreatment standards, including,
but not limited to, retaining an engineer, completing preliminary
and final design plans, executing contracts for major components,
commencing and completing construction, and beginning and conducting
routine operation;
B.
No increment referred to above shall exceed nine months;
C.
The user shall submit a progress report to the Director no later
than 14 days following each date in the schedule and the final date
of compliance which identifies, as a minimum, whether or not it complied
with the increment of progress, the reason for any delay, and, if
appropriate, the action being taken by the user to return to the established
schedule; and
D.
In no event shall more than nine months elapse between such progress
reports to the Director.
E.
In addition, the Town may direct the person, at the person's
cost, to disconnect or otherwise act to prevent the building sewer,
from the premises in which said violation of the requirements of this
chapter shall have occurred, from discharging to the public sewerage
system.
The Director may require any user that has violated or continues
to violate any provision of this chapter, an industrial discharge
permit, or order issued hereunder, or any other pretreatment standard
or requirement, to develop a pollution prevention plan. The pollution
prevention plan must specifically address violation(s) for which this
action was undertaken. The pollution prevention plan shall be developed
using good engineering judgment and shall be submitted to the Director
no later than 60 days after the user was notified of this requirement.
The Director shall publish annually, in the largest daily newspaper
circulated in the Town where the wastewater collection system is located,
a list of the users that, during the previous 12 months, were in significant
noncompliance with applicable pretreatment standards and requirements.
The Director may order any person or user which causes or contributes
to violation of this chapter or wastewater permit or order issued
hereunder, to show cause why a proposed enforcement action should
not be taken. Notice shall be served on the offender specifying the
time and place for the meeting, the proposed enforcement action and
the reasons for such action, and a request that the offender show
cause why this proposed enforcement action should not be taken. The
notice of the meeting shall be served personally or by certified mail
(return receipt requested) at least 10 days prior to the hearing.
Such notice may be served on any person, principle executive, general
partner, or corporate officer. Whether or not a duly notified offender
appears as noticed, immediate enforcement action may be pursued.
A.
When the Director determines that a user has violated, or continues
to violate, any provision of this chapter, an industrial discharge
permit or order issued hereunder, or any other pretreatment standard
or requirement, or that the user's past violations are likely
to recur, the Director may issue an order to the user directing it
to cease and desist all such violations and directing the user to:
B.
Issuance of a cease and desist order shall not be a bar against,
or a prerequisite for, taking any other action against the user.
The Director is hereby empowered to enter into consent orders,
assurances of voluntary compliance, or other similar documents establishing
an agreement with any user responsible for 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. Orders
may also contain such other requirements as might be reasonably necessary
and appropriate to address the noncompliance, including the installation
of pretreatment systems, additional self-monitoring, and management
practices. Such orders shall have the same force and effect as administrative
orders as per this chapter and shall be judicially enforceable.
A.
Any user who violates the following conditions of this chapter or
a wastewater discharge permit or order, or any applicable state or
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; or
(4)
Refusal of reasonable access to the user's premises for the
purpose of inspection, monitoring, or sampling.
B.
Such user will be notified of the proposed termination of its discharge
and be offered an opportunity to show cause why the proposed action
should not be taken. Exercise of this option by the Director shall
not be a bar to, or a prerequisite for, taking any other action against
the user.
A.
In addition to the provisions of this chapter, any user who violates
the following conditions is subject to discharge termination:
(1)
Violation of industrial discharge 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
volume, constituents, and characteristics prior to discharge;
(4)
Refusal of reasonable access to the user's premises for the
purpose of inspection, monitoring, or sampling; or
(5)
Violation of the pretreatment standards.
B.
Such user will be notified of the proposed termination of its discharge
and be offered an opportunity to show cause why the proposed action
should not be taken. Exercise of this option by the Director shall
not be a bar to, or a prerequisite for, taking any other action against
the user.
A.
The Director may immediately suspend a user's discharge, subsequent
to informal notice to the user, whenever such suspension is necessary
to terminate an actual or threatened discharge that reasonably appears
to present or cause an imminent or substantial endangerment to the
health or welfare of wastewater collection system personnel or the
public. The Director may also immediately suspend a user's discharge,
after notice and opportunity to respond, that threatens to interfere
with the operation of the wastewater collection system or that presents,
or may present, an endangerment to the environment.
(1)
Any user notified of a suspension of its discharge shall immediately
terminate or eliminate its wastewater discharge. In the event of a
user's failure to immediately comply with the suspension order,
the Director may implement such steps as deemed necessary, including
immediate severance of the sewer connection, to prevent or minimize
damage to the wastewater collection system, its receiving stream,
or endangerment to any individuals. The Director may allow the user
to recommence its discharge when the user has demonstrated to the
satisfaction of the Director that the period of endangerment has passed,
unless the termination proceedings of this chapter are initiated against
the user.
(2)
A user that is responsible, in whole or in part, for any discharge
presenting imminent endangerment shall submit a detailed written statement,
describing the causes of the harmful contribution and the measures
implemented to prevent any future occurrence, to the Director prior
to the date of any show cause or termination hearing of this chapter.
B.
Nothing in this section shall be interpreted as requiring a hearing
prior to any emergency suspension under this section.
Any person or user violating any of the provisions of this chapter
shall be liable to the Town for any expense, loss, or damage occasioned
the Town by reason of such violation. If the Director shall have caused
the disconnection of a drain from a public sewer, the Town may collect
the expenses associated with completing the disconnection from any
person or user responsible for, or willfully concerned in, or who
profited by such violation. The Town may thereafter refuse to permit
the restoration of the former connection or of any new connection
to the property concerned in the violation until the claim of the
Town for the cost of completing such disconnection shall have been
paid in full plus interest and the reasonable cost of any legal expenses
incurred by the Town in connection therewith.
A.
Nothing herein contained shall be interpreted to prevent any individual
industry or group of industries from erecting, maintaining, and operating
a private sewer treatment facility, such facility to be designed,
constructed, and operated in accordance with the applicable local,
state, and federal statutes, ordinances, and regulations.
B.
All private treatment facilities shall be operated by a person licensed
by the State of New Hampshire for the class of facility to be operated
and shall employ a full-time treatment plant operator.
No person shall maliciously, willfully, or negligently damage,
destroy, uncover, deface or tamper with any structure, appurtenance
or equipment that is part of the public sewerage system. Any person
violating this provision shall be subject to immediate arrest under
charge of disorderly conduct pursuant to the local ordinances, and
shall also be subject to penalties under state and federal statutes.
When the Town determines that a user has violated, or continues
to violate, any provision of this chapter, an industrial discharge
permit, or order issued hereunder, or any other pretreatment standard
or requirement, the Town may petition the Court through the Town's
Attorney for the issuance of an ex parte temporary judicial relief,
as appropriate, that restrains or compels the specific performance
of the industrial discharge permit, order, or other requirement imposed
by this chapter on activities of the user. The Town 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, implementing any other action against a user.
A.
A user who has violated, or continues to violate, any provision of
this chapter, an industrial discharge permit, or order issued hereunder,
or any other pretreatment standard or requirement shall be liable
to the Town for a maximum civil penalty of $10,000 per violation,
per day, plus actual damages incurred by the wastewater collection
system. In the case of a monthly or other long-term average discharge
limit, penalties shall accrue for each day during the period of the
violation.
B.
The Director may recover reasonable attorneys' fees, court costs,
and other expenses associated with enforcement activities, including
sampling and monitoring expenses, and the cost of any actual damages
incurred by the Town. The Director shall petition the Court to impose,
assess, and recover such sums.
C.
In determining the amount of civil liability, the Court shall consider
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.
D.
Filing a suit for civil penalties shall not be a bar against, or
a prerequisite for, implementing any other action against a user.
Any person or user who willfully or negligently violates any
provision of this chapter or any orders or permits issued hereunder
shall, upon conviction, be guilty of a violation, punishable by a
fine not to exceed $10,000 for each violation. Every separate provision
violated shall constitute a separate violation. Every day that a violation
occurs shall be deemed a separate violation. (Ref. RSA 47:17, I, RSA
149-I:6, RSA 31:39, III.)
The remedies provided for in this chapter are not exclusive.
The Town may take any, all, or any combination of these actions against
a noncompliant user. However, the Town may pursue other action against
any user without limitation, including ex parte temporary judicial
relief to prevent a violation of this chapter. Further, the Town is
empowered to pursue more than one enforcement action against any noncompliant
user.
A.
For the purposes of this section, "upset" means an exceptional incident
in which there is unintentional and temporary noncompliance with pretreatment
standards due to factors beyond the reasonable control of the user.
An upset does not include noncompliance to the extent caused by operational
error, improperly designed treatment facilities, inadequate treatment
facilities, lack of preventive maintenance, or careless or improper
operation.
B.
An upset shall constitute an affirmative defense to an action brought for noncompliance with pretreatment standards if the requirements of Subsection C, below, are met.
C.
A user who intends to establish the affirmative defense of upset
shall demonstrate, through properly signed, contemporaneous operating
logs, or other relevant evidence, that:
(1)
An upset occurred and the user can identify the cause(s) of the upset;
(2)
At the time being of the upset, the facility was operated in a prudent
and workmanlike manner and in compliance with applicable operation
and maintenance procedures; and
(3)
The user has submitted the following information to the Director
within 24 hours of becoming aware of the upset (If this information
is provided orally, a written submission must be provided within five
days.):
(a)
A description of the discharge and cause of noncompliance;
(b)
The period of noncompliance, including exact dates and times
or, if not corrected, the amount of time the noncompliance is expected
to continue; and
(c)
Action being implemented and/or planned to reduce, eliminate,
and prevent recurrence of the noncompliance.
D.
In any enforcement proceeding, the user seeking to establish the
occurrence of an upset shall have the burden of proof.
E.
Users will have the opportunity for a judicial determination on any
claim of upset only in an enforcement action brought for noncompliance
with pretreatment standards.
F.
Users shall control all discharges to the extent necessary to maintain
compliance with pretreatment standards upon reduction, loss, or failure
of its treatment facility until the facility is restored or an alternative
method of treatment is provided. This requirement applies in the situation
where, among other things, the primary source of power of the treatment
facility is reduced, lost, or fails.
A user shall have an affirmative defense to an enforcement action
brought against it for noncompliance with the general prohibitions
of this chapter or the specific prohibitions of this chapter if it
can prove that it did not know, or have reason to know, that its discharge,
alone or in conjunction with discharges from other sources, would
cause pass-through or interference and that either:
A.
A local limit exists for each pollutant discharged and the user was
in compliance with each limit directly prior to, and during, the pass-through
or interference; or
B.
No local limit exists, but the discharge did not change substantially
in nature or constituents from the user's prior discharge when
the Town was regularly in compliance with its NPDES permit, and in
the case of interference, was in compliance with applicable sludge
use or disposal requirements.
A.
For the purposes of this section:
(1)
"Bypass" means the intentional diversion of wastestreams from
any portion of a user's treatment facility.
(2)
"Severe property damage" means substantial physical damage to
property, damage to the treatment facilities that causes them to become
inoperable, or substantial and permanent loss of natural resources
that can reasonably be expected to occur in the absence of a bypass.
Severe property damage does not mean economic loss caused by delays
in production.
C.
Notice.
(1)
If a user knows in advance of the need for a bypass, it shall
submit prior notice to the Director, at least 10 days before the date
of the bypass, if possible.
(2)
A user shall submit oral notice to the Director of an unanticipated
bypass that exceeds applicable pretreatment standards within 24 hours
from the time it becomes aware of the bypass. A written submission
shall also be provided within five days of the time the user becomes
aware of the bypass. The written submission shall contain a description
of the bypass and its cause; the duration of the bypass, including
exact dates and times, and, if the bypass has not been corrected,
the amount of time it is expected to continue; and steps implemented
or planned to reduce, eliminate, and prevent reoccurrence of the bypass.
The Director may waive the written report on a case-by-case basis
if the oral report has been received within 24 hours.
D.
Enforcement and approval by Director.
(1)
Bypass is prohibited, and the Director may initiate enforcement
action against a user for a bypass, unless:
(a)
Bypass was required to prevent loss of life, personal injury,
or severe property damage;
(b)
There were no feasible alternatives to the bypass, such as the
use of auxiliary treatment facilities, retention of untreated wastes,
or maintenance during normal periods of equipment downtime. This condition
is not satisfied if adequate backup equipment should have been installed
in the exercise of reasonable engineering judgement to prevent a bypass
that occurred during normal periods of equipment downtime or preventive
maintenance; and
(2)
The Director may approve an anticipated bypass, subsequent to
considering its adverse effects, if the Director determines that it
will meet the three conditions listed in Subsection (D)(1) of this
section.
