[Ord. 1073, 11/8/2007, § 12.1]
The City may decline to issue or reissue a wastewater discharge
permit to any user who has failed to comply with any provision of
this Part, a previous wastewater discharge permit, or order issued
hereunder, or any other pretreatment standard or requirement, unless
such user first files a satisfactory bond, payable to the City, in
a sum not to exceed a value determined by the City to be necessary
to achieve consistent compliance.
[Ord. 1073, 11/8/2007, § 12.2]
The City may decline to issue or reissue a wastewater discharge
permit to any user who has failed to comply with any provision of
this Part, a previous wastewater discharge permit, or order issued
hereunder, or any other pretreatment standard or requirement, unless
the user first submits proof that it has obtained financial assurances
sufficient to restore or repair damage to the POTW caused by its discharge.
[Ord. 1073, 11/8/2007, § 12.3]
A violation of any provision of this Part, a wastewater discharge
permit, or order issued hereunder, or any other pretreatment standard
or requirement is hereby declared a public nuisance and shall be corrected
or abated as directed by the City. Any person(s) creating a public
nuisance shall be subject to the provisions of the City Code governing
such nuisances, including reimbursing the City for any costs incurred
in removing, abating, or remedying said nuisance.
[Ord. 1073, 11/8/2007, § 12.4]
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 Part,
or wastewater discharge permit, or who falsifies, tampers with, or
knowingly renders inaccurate any monitoring device or method required
under this Part, is subject to prosecution in accordance with the
provisions of the Pennsylvania Crimes Code pertaining to perjury and
falsification in official matters pursuant to 18 Pa.C.S.A. § 4901
et seq.
[Ord. 1073, 11/8/2007, § 12.5]
Users which have not achieved 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. Existing contracts
for the sale of goods or services to the City held by a user found
to be in significant noncompliance with pretreatment standards or
requirements may be terminated at the discretion of the City.
[Ord. 1073, 11/8/2007, § 12.6]
1. Pursuant to provision of the Pennsylvania Penalty Bill, Act 9 of
1992, 35 P.S. § 752.1 et seq., providing for enhanced penalty
authority for publicly owned treatment works which are authorized
to enforce industrial pretreatment standards for industrial waste
discharges, and in addition to proceeding under any other remedy available
at law or equity for violation of pretreatment standards and/or requirements,
the City, as the operator of a publicly owned treatment works, may
assess a civil penalty upon an industrial user for violation of any
of the terms and provisions of this Part. 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, regardless of
jurisdictional boundaries. Each violation for each separate day shall
constitute a separate and distinct offense under this section.
2. As part of any notice of assessment of civil penalties issued by
the City to an industrial user, there shall also be included 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 City.
3. For 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 Federal Water Pollution Control Act. The City may, however, recover
its costs for reestablishing the operation of the treatment works
in addition to any civil penalty imposed under this section.
4. The City shall publicly adopt a formal, written civil penalty assessment
policy (in its enforcement response plan) and make it publicly available.
Each industrial discharger participating in the pretreatment program
shall be given written notice of the policy. The penalty assessment
policy shall consider:
A. Damage to air, water, land or other natural resources of the Commonwealth
of Pennsylvania and their uses.
B. Costs of restoration and abatement.
C. Savings resulting to the person in consequence of the violation.
D. History of past violations.
E. Deterrence of future violations.
5. Uses of Penalties. All civil penalties collected pursuant to this
section shall be placed by the City in a restricted account and shall
only be used by the City and the publicly owned treatment works for
the following uses:
A. The repair of damage and any additional maintenance needed or any
additional costs imposed as a result of the violation for which the
penalty was imposed.
B. Pay any penalties imposed on the City or the publicly owned treatment
works by the federal or state government for violation of pretreatment
standards.
C. For the costs incurred by the City or publicly owned treatment works
to investigate and take the enforcement action that resulted in a
penalty being imposed.
D. For the monitoring of discharges in the pretreatment program and
for capital improvements to the treatment works, including sewage
collection lines, which may be required by the pretreatment program.
E. Any remaining funds may be used for capital improvements to the treatment
works, including collection lines.
6. Injunctive Relief. The City shall have the power to obtain injunctive
relief to enforce compliance with or restrain any violation of any
pretreatment requirement or standard pursuant to and in accordance
with the provisions of Pennsylvania Penalty Bill, Act 9 of 1992, 40
CFR 403.8(f)(1)(vi)(A) and any other applicable statute and/or common
law. Injunctive relief shall be available upon the showing of one
or more of the following:
A. A discharge from an industrial user presents an imminent danger or
substantial harm to the POTW or the public.
B. A discharge from an industrial user presents an imminent or substantial
endangerment to the environment.
C. A discharge from an industrial user causes the POTW to violate any
condition of its discharge permit.
D. The industrial user has shown a lack of ability or intention to comply
with a pretreatment standard.
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Notwithstanding the preceding subsection, an injunction affecting
an industrial operation not directly related to the condition or violation
in question, may be issued if the Court determines that other enforcement
procedures would not be adequate to affect prompt correction of the
condition or violation. In addition to an injunction, the Court in
any such proceedings may levy civil penalties in accordance with Act
9 of 1992, 35 P.S. § 752.1 et seq., and this Part.
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7. Appeal. An industrial user assessed with a civil penalty under the
terms of this section shall have 30 days to pay the proposed penalty
in full, or, if the industrial user wishes to contest either the amount
of the penalty or the fact of the violation, the industrial user must
file an appeal of the action 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 the amount of the penalty.
8. 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 City, Authority, or the Commonwealth of
Pennsylvania.
9. Such penalty assessments may be added to the user's next scheduled
sewer service or sewer surcharge bill.
[Ord. 1073, 11/8/2007, § 12.7]
1. Right to Appeal. Any person or user aggrieved by any order, assessment
of penalty, issuance of permit or denial of permit may appeal said
order, assessment, issuance of permit or denial of permit after service
of the same by the City.
2. Right to Hearing. Any order, assessment of penalty, issuance of permit
or denial of permit shall inform the user that a written request for
an appeal on the alleged violations, order, issuance of permit or
denial of permit, and/or penalty must be filed within 30 days after
service of the notice to preserve the user's right to hearing.
The notice will be deemed properly served upon the user if a copy
is served upon him or her personally, or sent by registered or certified
mail to his or her last known address, or if he or she is served with
notice by an other method of service now or hereafter authorized in
civil actions under the laws of the state. In an emergency situation,
if written request for an appeal/hearing is not made by the user within
30 days of the service of notice, the user will be foreclosed from
hearing regarding any penalty assessed. In a nonemergency situation
if written request for a hearing is not made by the user within 30
days of the service of notice, the user will be foreclosed from hearing
regarding any order, assessment of penalty, issuance of permit or
denial of permit.
3. Appeal Process, Hearing Request and Conference Option.
A. As stated immediately above, written request for appeal/hearing must
be filed with the Director of Public Works within 30 days from the
date that the City took the action which is the subject of the manner
of the appeal to preserve the user's rights.
B. All appeals shall contain the following information:
(1)
The name, address and telephone number of the applicant.
(2)
The date on which the City took the action which is the subject
matter of the appeal.
(3)
The reason(s) for such appeal, and a specification of objections
setting forth the manner in which the appellant is aggrieved and the
relevant issues to be resolved by the Hearing Board.
(4)
A statement detailing the relief demanded by the appellant.
C. A true and correct copy of the written appeal shall be served on
a City Solicitor personally or by registered or certified mail within
48 hours after the appeal is filed.
D. Conference Option. At the time an appeal is requested, the user may
also request a conference with the City prior to the scheduling of
an administrative hearing. Said conference will include appropriate
members of the City staff and its agents. Violations and penalties
will be explained and discussed. Electing this option does not foreclose
and/or affect the user's right to hearing provided that the written
request for hearing was filed within 30 days of service as noted above.
The purpose of this option is to provide the user with an informal
forum within which to discuss the alleged violations and to expedite
conclusion and/or resolution of outstanding enforcement actions. If
resolution is not reached within 90 days from the date of the scheduled
conference the City shall schedule the matter for formal hearing.
In any event either party may request a formal hearing at any point
during the conference proceedings.
E. Hearing Protocol.
(1)
Upon receipt of the appeal the Hearing Board shall schedule
a hearing for the appellant and give the latter written notice of
the time, date and place of such hearing. A hearing will not be held
if waived by the appellant or if the parties stipulate all of the
essential facts or agree to submit direct or rebuttal testimony or
documentary evidence in affidavit form, sworn or affirmed on personal
knowledge, or by deposition.
(2)
Written briefs of the parties or their counsel may be filed
with the Hearing Board and served on the opposing party, within five
days after the hearing and prior to any adjudication.
(3)
At any hearing, parties shall have the right of presentation
of evidence, cross-examination, objection, motion and argument. The
Hearing Board shall not be bound by technical rules of evidence but
all relevant and material evidence of reasonable probative value shall
be admissible. All witnesses shall be sworn or shall affirm.
(4)
The Hearing Board shall not be required to maintain a verbatim
transcript of the hearings.
(5)
At the conclusion of the proceedings, and after consideration
of the evidence and briefs of the parties, if any, the Hearing Board
shall issue an adjudication which shall contain findings of facts
and conclusions of law, and, if appropriate, an order. A written copy
of such adjudication shall be mailed to each party.
(6)
The decision and adjudication of the Hearing Board shall be
final and binding upon the parties subject to any further right of
appeal which may be provided by law.
(7)
Failure to perfect an appeal in the manner and form required
by this section shall be sufficient for dismissing the appeal.
(8)
The action of the City shall be final as to any person who fails
to file an appeal or to perfect an appeal pursuant to this section.
4. Hearing Board.
A. An Industrial Hearing Board shall be appointed by the Mayor with
the advice and consent of Council for resolution of differences between
the City and any aggrieved party of any improved property on matters
concerning interpretation and execution of the provisions of this
Part by the City and to hear any appeals filed by such aggrieved parties.
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No one appointed to the Industrial Board herein, either as a
representative at large, legal representative, industrial representative,
or registered professional engineer shall have any right or power
to sit, vote, act or in any way participate with regard to any appeal
of any industry with which it is in any way connected. Board Members
shall refrain from taking any such action on any such matter and shall
avoid any conflict of interest or appearance of impropriety.
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B. One member of the Board shall be a member of the Public Works Department;
one member shall be a professional engineer skilled in practice of
sanitary engineering; one member shall be a representative of industry
or manufacturing enterprise; one member shall be a lawyer; and one
member shall be selected at large for his interest in accomplishing
the objectives of this Part.
C. The initial appointments to the Board shall be for the following
terms:
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Public Works Department Representative
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5 years
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Registered Professional Engineer (Sanitary/Environmental/Civil/Chemical
Engineer)
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4 years
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Industrial Representative
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3 years
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Legal Representative
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2 years
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Representative at Large
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1 year
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All succeeding terms shall be for a period of five years. The
Mayor, with the consent of Council, shall appoint representatives
to fill vacancies on the Board to complete unexpired terms. Interim
appointments may be permitted to serve an additional full term on
the Board.
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D. The powers of the Hearing Board shall include, but not be limited
to, the following:
(1)
To hear appeals from any person aggrieved by the application
of this Part including, but not limited to, any order or decision
made or issued by the City.
(2)
To make rules with regard to conducting its hearings, such rules
to be submitted to Council for their advice and consent.
(3)
To make such findings of fact as may be required by the application
this Part L.
(4)
To decide questions presented.
E. Any party aggrieved by any decision of said Hearing Board shall have
the right to file an appeal under the Local Agency Law to the Court
of Common Pleas of the County of Berks within 30 days of said decision;
however, said appeal shall not act as a supersedes of any final order.
[Ord. 1073, 11/8/2007, § 12.8]
1. Any person affected by any statutory provision administered by the
City or affected by any rule or order of the City may, in accordance
with state law and this Part petition the City for a declaratory ruling
as to the applicability of such statute, rule or order. The petition
shall clearly and concisely identify:
A. The precise statute, rule or order under which a declaratory ruling
is sought.
B. How the petitioner is affected by the statute, rule or order.
C. The petitioner's position on how the applicable statue, rule
or order should be interpreted, including citations to any applicable
documents or law that support the petitioner's position.
[Ord. 1073, 11/8/2007, § 1209]
1. In addition to such administrative, civil, or criminal fines as may
be imposed, any user who violates any provisions of this Part or any
condition of a permit, or plan approval related thereof, shall be
financially responsible and liable to the City in addition to normal
service charges and surcharges for industrial investigation and monitoring
of compliance with this Part including, but not limited to, the following:
A. Cost of mileage, labor and materials incurred in detecting and correcting
the violation.
B. Laboratory analysis costs associated with detecting and correcting
the violation.
C. Additional treatment costs caused by the violation or association
with detecting and correcting the violation.
D. Costs of any additional equipment acquired or expended by the City
for detecting or correcting the violation.
E. Repair and/or replacement of any part of the facility damaged by
the violation.
F. Any liability, damages, fines or penalties incurred by the City as
a result of the violation.
G. Costs incurred in enforcing compliance, including prosecution and/or
settlement of outstanding violations.
H. Other costs as are associated with the prosecution, negotiation and/or
settlement of a violation.
[Ord. 1073, 11/8/2007, § 1210]
If the City or its duly authorized employees and agents, upon
presenting identification and appropriate credentials, are denied
access to carry out inspection, surveillance, and monitoring procedures
as described in this Part, the City may immediately institute civil
proceedings, including proceedings for necessary injunctive relief,
or criminal proceedings.
[Ord. 1073, 11/8/2007, § 1211]
If any person shall construct, install, alter or repair any
sewer or connect to any sewer in violation of the requirements of
this Part the City may, in its discretion, order or direct such person
to uncover and fully expose any or all portions of such sewer or connection
and afford the City and its representatives adequate opportunity for
examination and inspection of the work. If the connection and appurtenances
thereto shall be found not to be in full accord with the requirements
of this Part and the standards established and address its provisions,
then the City may serve the offender with a written notice as provided
in Part 1J.