City of Geneva, NY Enforcement and Penalties

The general pretreatment regulations require the periodic updating of the industrial users contributing to the Geneva WWTF.

Every five years a complete industrial user survey shall be done. At least annually the industrial user list shall be updated. New industrial users must file an industrial residual waste questionnaire and an industrial chemical survey before commencing discharge to the system.

The WWTF Chief Operator shall oversee the industrial user survey. The survey shall be comprehensive and complete. The telephone book, Chamber of Commerce listing, local business directory and inspection of commercial areas shall be used to update the master list. The master list shall include all businesses in the service area. The master list shall be surveyed to determine what industries are dry processes or wet processes. All industries that discharge to the POTW shall be sent an industrial chemical survey and an industrial residual waste questionnaire to be completed and returned. All completed forms shall be reviewed to determine if they should be classified as a categorical or a significant industrial user.

(d)

Annually the industrial user list shall be reviewed to determine if new industrial users have entered the system. This review will be based on building permits, and records from the Planning Commission and Building and Code Enforcement Department. The Public Works Director will forward to the WWTF Chief Operator a copy of all industrial permits issued for new connection to the sewer system. The Planning and Zoning Commission sends minutes of all meetings to the Public Works Director. The Public Works Director will forward any minutes to the WWTF Chief Operator that involve new industrial activity.

(e)

The Building and Code Enforcement Department forward all cases of Sewer Use Ordinance violations to the Public Works Director, who will forward any pertinent information to the WWTF Chief Operator.

(f)

Before new industrial users can commence discharge, they must have completed an industrial chemical survey and an industrial residual waste questionnaire. The Public Works Director and WWTF Chief Operator will review the forms and determine if the industrial user will be a categorical industry or an SIU. If the user is determined to be either, he or she must have valid discharge permit as required by the Sewer Use Ordinance.

(3)

Compliance monitoring.

Significant industries, as defined in the Sewer Use Ordinance, are required to conduct self-monitoring and submit self-monitoring reports in accordance with their industrial user discharge permit. The frequency of self-monitoring is determined by past history of compliance, discharge volume and the possibility for pass-through, interference or danger to POTW works. The United States EPA Pretreatment Compliance Monitoring and Enforcement (PCME) Guidance (July 1986) document will be used as a guide for self-monitoring frequency. Ultimately the self-monitoring program must meet the requirements and intent of the general pretreatment regulations and be effective and timely in determining compliance with categorical and local discharge limits.

The WWTF Chief Operator must schedule at least one inspection and one sampling of an SIU annually. The sampling must be for both categorical and local limits. The sampling, at a minimum, must develop data that is admissible in a court of law. The sampling and testing procedures must conform to United States EPA standard practices. The PCME guidance document will be used as a reference for the sampling.

(4)

Screening data.

The City will monitor all industrial sampling reports for pretreatment compliance. Any instance of noncompliance, including nondischarge violations, will require an enforcement response as outlined in Subsection C.

Enforcement response.

(1)

Determining enforcement response. The key element of this enforcement response plan is the Enforcement Guide (Table 1.1 - 1.5). This guide is a matrix which describes violations and indicates the range of appropriate enforcement options. These options are: notice of violation, administrative fines, administrative orders, civil litigation, criminal prosecution, termination of sewer service and supplemental enforcement responses. Subsection D will fully describe the options. The response guide offers several levels of enforcement responses for each type of violation. In deciding what level of response is appropriate, the past history of the industrial user, severity of the violation, duration of the violation, the effect of the violation on the POTW and the environment, the intent or negligence of the industrial user and the overall attitude of the industrial user should be considered. Typically for minor violations, notices of violations are issued. If the industrial user does not return to compliance within the specified time frame, the enforcement response escalates until the industrial user is back in compliance. The criteria for determining the appropriate enforcement response are discussed in detail:

Severity of the violation. Notices of violations (NOV) are used for isolated instances of noncompliance, but any violation, no matter how minor, must be addressed. The EPA recommends an industrial user that has a significant noncompliance violation, as that term is defined in § 277-2, be issued an enforceable order, i.e., administrative order, that requires a return to compliance by a specific date.

Duration of violation. Violations that extend over long periods of time should subject the industrial user to escalated enforcement actions. If the industrial user fails to comply with the administrative order, then additional fines may be applied. If the violations are causing harm to the POTW or the receiving stream, then civil action or service termination should be considered.

Effect on POTW or receiving stream. If any violation causes upsets, interference or pass-through of the POTW to the receiving stream, it should be dealt with a severe and swift response. At a minimum the industrial user should be issued an administrative order with a fine. If the violation resulted in fines by the EPA or NYSDEC to the City, the industrial user should be responsible for the fines. If the violation resulted in increased treatment costs or harm to process equipment or treatment works, the industrial user should be responsible for the increased costs.

(d)

Past history of the user. The past history of compliance of the industry should be considered when considering what level of enforcement is appropriate. An industrial user with a good compliance history may be given the least severe, and an industrial user with a poor compliance history may be given a more severe enforcement response for the same violation.

(e)

Attitude and good faith of user. The attitude and good faith of the industrial user in correcting its noncompliance should be taken into consideration when determining the enforcement response, but a good attitude cannot eliminate the need for some type of enforcement response.

(2)

Personnel responsibilities for enforcement response. The City Manager, the Public Works Director and the WWTF enforcement guide clearly define what actions are to be taken by the City. The City Manager, Director of Public Works and the Chief Operator are the three City personnel involved in enforcement responses. By having responsibilities explicitly spelled out, responses to noncompliance will be swift and consistent. The general rule is that the Chief Operator will issue notices of violations and administrative orders. The Public Works Director will have the authority to issue administrative orders with fines and show-cause orders. The City Manager will have the authority to issue show-cause orders, initiate civil action, initiate criminal investigation and terminate service.

(3)

Enforcement response guide. The enforcement response guide (Table 1.1 - 1.5) will be used to determine the enforcement options for industrial user noncompliance. The option selected should be based on the criteria set forth in Subsection C(1). The following are abbreviations and terms used in the enforcement response guide:

AO	—	Administrative Order
CM	—	City Manager
CO	—	WWTF Chief Operator
Civil action	—	Civil litigation against the IU seeking equitable relief, monetary penalties and actual damages
Criminal investigation	—	Pursuing punitive measures against an individual and/or organization through a court of law
Fine	—	Monetary penalty assessed by City
IU	—	Industrial user
NOV	—	Notice of violation
PWD	—	Public Works Director
SNC	—	Significant noncompliance
Show cause	—	Formal meeting requiring the IU to appear and demonstrate why the City should not take a proposed enforcement action or continue with an implemented action against it. The meeting may also serve as a forum to discuss corrective actions and compliance schedules.

Unauthorized Discharges (no permit)
Noncompliance				Nature of the Violation	Enforcement Responses	Personnel
1.	Unpermitted discharge			IU unaware of requirement; no harm to POTW/environment	Phone call; NOV with application form	CO
				IU unaware of requirement; harm to POTW	- AO with fine	PWD
					- Civil action	CM
				Failure to apply continues after notice	- Civil action	CM
					- Criminal investigation	CM
					- Terminate service	CM
2.	Nonpermitted discharge (failure to renew)			IU has not submitted application within 10 days of due date	Phone call; NOV	CO
Discharge Limit Violation
1.	Exceedance of local or national standard (permit limit)			Isolated, not significant	Phone call; NOV	CO
				Isolated, significant (no harm)	AO, to develop action plan	CO
				Isolated, harm to POTW or environment	- Show cause order	CM
					- Civil action	CM
				Recurring, no harm to POTW/environment	AO with fine	PWD
				Recurring, significant	AO with fine	PWD
Monitoring and Reporting Violations
1.	Reporting violation			Report is improperly signed or certified	Phone call or NOV	CO
				Report is improperly signed or certified after notice by POTW	- AO	CO
					- Show cause order	PWD, CM
				Isolated not significant (10 days late)	Phone call; NOV	CO
				Significant (report 30 days late)	AO to submit with fine per additional day	PWD
				Reports are always late or no reports at all	- AO with fine	PWD
					- Show cause order	PWD, CM
					- Civil action	CM
				Failure to report spill or changed discharge (no harm)	NOV	CO
				Failure to report spill or changed discharge (results in harm)	- AO with fine	PWD
					- Civil action	CM
				Repeated failure to report spills	- Show cause order	PWD, CM
					- Terminate service	CM
				Falsification	- Criminal investigation	CM
					- Terminate service	CM
2.	Failure to monitor			Failure to monitor all pollutants as required by permit	NOV or AO	CO
				Recurring failure to monitor	- AO with fine	PWD
					- Civil action	CM
3.	Improper sampling			Evidence of intent	- Criminal investigation	CM
					- Terminate service	CM
4.	Failure to install monitoring equipment			Delay of less than 30 days	NOV	CO
				Delay of more than 30 days	AO to install with fine for each additional day	PWD
				Recurring, violation of AO	- Civil action	CM
					- Criminal investigation	CM
					- Terminate service	CM
5.	Compliance Schedules (in permit)			Missed milestone by less than 30 days or will not affect final milestone	NOV or AO	CO
				Missed milestone by more than 30 days or will not affect final milestone (good cause for delay)	AO with fine	CM
				Missed milestone by more than 30 days or will affect final milestone (no good cause delay)	- Show cause order	PWD, CM
					- Civil action	CM
					- Terminate service	CM
				Recurring violation or violation of Schedule in AO	- Civil action	CM
					- Criminal investigation	CM
					- Terminate service	CM
Other Permit Violations
1.	Wastestreams are diluted in lieu of treatment			Initial violation	AO with fine	PWD
				Recurring	- Show cause order	PWD, CM
					- Terminate service	CM
2.	Failure to mitigate noncompliance or halt production			Does not result in harm	NOV	CO
				Does not result in harm	- AO with fine	PWD
					- Civil action	CM
3.	Failure to properly operate and maintain pretreatment facility			See no. 2 above
Violations Detected During Site Visits
1.	Entry denial			Entry denied or consent withdrawn	Obtain warrant and return to IU	CO
					Copies of records denied
2.	Illegal discharge			No harm to POTW or environment	AO with fine	PWD
				Discharge causes harm or evidence of intent/negligence	- Civil action	CM
					- Criminal investigation	CM
				Recurring, violation of AO	Terminate service	CM
3.	Improper sampling			Unintentional sampling at incorrect location	NOV	CO
				Unintentionally using incorrect sample type	NOV	CO
				Unintentionally using incorrect sample collection techniques	NOV	CO
4.	Inadequate recordkeeping			Inspector finds files incomplete or missing (no evidence of intent)	NOV	CO
				Recurring	AO with fine	PWD
5.	Failure to report additional monitoring			Inspection finds additional files	NOV	CO
				Recurring	AO with fine	PWD
Time Frames for Responses
		A.	All violations will be identified and documented within five days of receiving compliance information.
		B.	Initial enforcement responses [involving contact with the industrial user and requesting information on corrective and preventative action(s)] will occur within 15 days of violation detection.
		C.	Follow-up actions for continuing or reoccurring violations will be taken within 60 days of the initial enforcement response. For all continuing violations, the response will include a compliance schedule.
		D.	Violations which threaten health, property or environmental quality are considered emergencies and will receive immediate responses such as halting the discharge or terminating service.
		E.	All violations meeting the criteria for significant noncompliance will be addressed with an enforceable order within 30 days of the identification of significant noncompliance.

Enforcement response options. Subsection C and the enforcement response guide (Table 1.1-1.5) will be used to determine the appropriate enforcement response. This section provides in detail the seven enforcement response options outlined in Subsection C and the enforcement response guide. The seven enforcement responses are notice of violation, administrative fines, administrative orders, civil litigation, criminal prosecution, termination of sewer service and supplemental enforcement responses.

(1)

Notice of violation.

A notice of violation (NOV) is a letter to an industrial user informing the industrial user of noncompliance with the Sewer Use Ordinance, industrial discharge permit or pretreatment regulations. It is used for nonsignificant violations. In the case of significant noncompliance, an NOV may be issued as a precursor to more severe enforcement action.

The City will issue an NOV to any industrial user that violates any of its permit limits (categorical or local limits). The NOV will be issued for isolated and insignificant violations, failure to submit monitoring reports, or other minor violations of the Sewer Use Ordinance as stated in the enforcement response guide. The NOV shall be issued within five days of detection of a violation. The NOV will follow the standard form set forth in Subsection E. The NOV will be hand delivered or sent via certified mail to the industrial user. Copies of the NOV shall be sent to the Public Works Director and placed in the industrial user file.

(2)

Administrative orders. Administrative orders (AOs) are enforcement documents which direct industrial users to undertake or to cease specified activities. Administrative orders are recommended as the formal response to significant noncompliance. Administrative orders may incorporate compliance schedules and administrative fines. The four types of administrative orders that are authorized by the Sewer Use Ordinance are: show-cause orders, consent orders, cease-and-desist orders and compliance orders.

Show-cause orders. A show-cause order directs the industrial user to appear before the Chief Operator, Public Works Director or City Manager, explain its noncompliance, and show cause why more severe enforcement actions against the user should not go forward. The hearing can be either formal or informal, but the hearings should be carefully documented. The outcome of most show-cause hearings will be a consent order or compliance order and an administrative fine.

Consent orders.

[1]

A consent order is an agreement between the City and the industrial user that sets forth compliance schedules, remedial actions and any administrative fines. The consent order is negotiated by the industrial user and the City. The industrial user does not need to admit the noncompliance in the text of the order, but the consent order prohibits future violations and provides for corrective action on the part of the industrial user.

[2]

In determining the terms of the consent order, the City may take extenuating circumstances into consideration. The consent order should address every identified deficiency in the user's compliance status at the time of the order.

Cease-and-desist orders. A cease-and-desist order orders an industrial user in noncompliance to cease noncomplying discharges immediately or to terminate its discharge completely. A cease-and-desist order will be used in instances where the industrial user's discharge could cause pass-through or interference, or otherwise create an emergency situation. The order should be delivered in person or by certified mail.

(d)

Compliance orders. A compliance order directs the user to achieve or restore compliance by a date specified in the order. A compliance order does not need to be negotiated with the industry. Compliance orders are typically used when construction, process changes or modification of management practices need to be undertaken. Compliance orders set specific dates by which specified actions are to be completed. If the specific deadlines are not met, then further enforcement responses are initiated or specified series of penalties are automatically set forth. Typically fines are associated with compliance orders.

(3)

Administrative fines.

The Sewer Use Ordinance confers the authority to the City Manager and the Public Works Director to assess administrative fines on industrial users for instances of noncompliance. The ordinance sets the administrative fines not to exceed $20,000 per violation. Administrative fines may be assessed prior to or subsequent to a hearing. The imposition of fines is subject to review as provided in § 277-69 upon petition of a user.

The following schedule should be used as guidance for assessing administrative fines:

Unpermitted discharge	$5,000 for first offense; $10,000 for second offense; $20,000 for third offense
Failure to renew permit	$1,000 for first offense; $5,000 for second offense; $10,000 for third offense
Noncompliance with permit limits	$1,000 for first offense; $5,000 for second offense; $10,000 for third offense
After one year of compliance fine is reset to $1,000.
Significant noncompliance (defined in § 277-2)	Up to $20,000 for each offense
Reporting violation	$1,000 for first offense; $5,000 for second offense; $10,000 for third offense
After one year of compliance fine is reset to $1,000.
Failure to report spills	$5,000 for first offense; $10,000 for second offense; $20,000 for third offense
Failure to monitor	$5,000 for first offense; $10,000 for second offense; $20,000 for third offense

The fines listed are for guidance only and do not list all possible instances of penalties that could be incurred. If a fine is to be assessed it should reflect the magnitude of the violation, the intent of the industrial user and the past history of the industrial user.

(4)

Civil litigation. The Sewer Use Ordinance allows the City to assess civil penalties of up to $20,000 per day for each violation by industrial users of the pretreatment standards, the Sewer Use Ordinance or their industrial user permit conditions. Civil litigation is an appropriate enforcement response when enforcement efforts based on cooperation with the industrial user have not resulted in a return to compliance. Civil litigation might also be pursued in emergency conditions where injunctive relief is necessary or to impose civil penalties and recover losses incurred due to the noncompliance. The different types of civil litigation are detailed below. They include consent decrees, injunctions and civil penalties and cost recovery. Litigation need not be limited to one type; a single case may include all three types.

Consent decrees. Consent decrees are agreements between the City and the industrial user. For a consent decree to be binding it must be signed by the City, the industrial user and the judge. Consent decrees normally include a schedule for return to compliance and a stipulated civil penalty. Consent decrees are similar to consent orders, but the industrial user acknowledges the noncompliance.

Injunctions. Injunctions will be used if an industrial user refuses to comply with a previously issued cease-and-desist order. Injunctive relief should be pursued if delays involved in filing a suit would result in harm to the POTW or the environment.

Civil penalties and cost recovery. Civil litigation may be necessary to recover costs associated with noncompliance and to impose civil penalties. The City should seek to recover all costs associated with an industrial user's noncompliance. The costs include legal fees, increased treatment costs, fines assessed against the City by the EPA or NYSDEC and the cost incurred in enforcement response actions.

(5)

Criminal prosecution. The Sewer Use Ordinance permits the City to pursue criminal prosecution of individuals or organizations for violations of the Sewer Use Ordinance. Criminal offenses are defined as either felonies or misdemeanors. Felonies are the more serious charges and are characterized by the Clean Water Act as knowing violations of the Clean Water Act and knowing endangerment of human health. Knowing violations are punishable by fines up to $50,000 per day of violation, imprisonment of up to 15 years, or both. Fines and prison sentences under the Clean Water Act are doubled for a second offense. Federal law defines misdemeanors as offenses other than felonies. Misdemeanors are punishable by fines of up to $1,000,000 or imprisonment for less than one year. Misdemeanor offenses include tampering with monitoring equipment, falsifying self-monitoring reports and failing to report noncomplying discharges. Criminal prosecution would normally be pursued when there is evidence of criminal intent, willfulness, negligence and/or bad faith shown by the industrial user. Criminal prosecution is the most severe enforcement response at the City's disposal. The City Manager and the City Attorney will decide whether criminal prosecution is pursued. The EPA guidance document, Guidance for Developing Control Authority Enforcement Response Plans, September 1989, should be used as a reference.

(6)

Termination of sewer service.

The Sewer Use Ordinance allows the City to terminate an industrial user's right to discharge when previous enforcement responses have not returned the industrial user to compliance or a discharge is causing interference, pass-through or damage to human health, the environment or the POTW. The enforcement response guide (Table 1.1 - 1.5) details the instances when termination of service shall be used as an enforcement tool.

Termination of service can be accomplished through cease-and-desist orders or injunctions. In the most severe case, the service may have to be physically broken or a plug installed.

(7)

Supplemental enforcement responses.

The City is required by the general pretreatment regulations [40 CFR 403.8(f)(2)(vii)] to annually publish in the designated official newspaper a list of industrial users that have had significant violations during the past 12 months. More frequent publication of violations can be used to deter industrial users from committing pretreatment violations.