A.
Access to property and records.
(1)
The Superintendent and other authorized representatives of the Town,
representatives of USEPA, NYSDEC, NYSDOH, and/or Albany County Department
of Health, bearing proper credentials and identification, shall be
permitted to enter upon all nonresidential properties at all times
for the purpose of inspection, observation, sampling, flow measurement,
and testing to ascertain a user's compliance with applicable
provisions of federal and state law governing use of the Town sewerage
system, and with the provisions of this chapter. Such representative(s)
shall have the right to set up, on the user's property or property
rented/leased by the user, such devices as are necessary to conduct
sampling or flow measurement. Guard dogs shall be under proper control
of the user while the representatives are on the user's property
or property rented/leased by the user. Such representative(s) shall,
additionally, have access to and may copy any records the user is
required to maintain under this chapter. Where a user has security
measures in force which would require proper identification and clearance
before entry into the premises, the user shall make necessary arrangements
so that, upon presentation of suitable identification, inspecting
personnel will be permitted to enter, without delay, for the purpose
of performing their specific responsibilities.
(2)
Notwithstanding a resident's civil rights, the Superintendent
or the Director or other duly authorized employee of the Town and/or
the County, bearing proper credentials and identification, shall be
permitted to enter all properties for the purposes of inspection,
observation, measurements, sampling and testing the quantity and quality
of waste discharges to the sewer or waterways or facilities for waste
treatment in accordance with the provisions of this chapter.
B.
Access to easements. The Superintendent, bearing proper credentials
and identification, shall be permitted to enter all private premises
through which the Town holds an easement for the purpose of inspection,
observation, measurement, sampling, repair, and maintenance of any
portion of the Town sewerage system lying within the easement. All
entry and subsequent work on the easement shall be done in accordance
with the terms of the easement pertaining to the private premises
involved.
C.
Liability of property owner. During the performance, on private premises, of inspections, sampling, or other similar operations referred to in § 155-44C and D, the inspectors shall observe all applicable safety rules established by the owner or occupant of the premises, provided they meet, or exceed, federal, state and local requirements. The owner and/or occupant shall be held harmless for personal injury or death of the inspector and the loss of or damage to the inspector's supplies and/or equipment; and the inspector shall indemnify the owner and/or occupant against loss or damage to property of the owner or occupant by the inspector and against liability claims asserted against the owner or occupant for personal injury or death of the inspector or for loss of or damage to the inspector's supplies or equipment arising from inspection and sampling operations, except as such may be caused by negligence or failure of the owner or occupant to maintain safe conditions.
A.
The Superintendent shall be responsible for developing and implementing
an enforcement response plan that outlines, in a step-by-step fashion,
the procedures to be followed to identify, document, and respond to
violations by users of the Town and County sewerage system. All violations
by users of the Town and County sewerage system shall be met with
some type of enforcement response. The response shall be comprehensive
and effective.
B.
The range of appropriate enforcement actions shall be based on the
nature and severity of the violation and other relevant factors, such
as:
(1)
Magnitude of the violation.
(2)
Duration of the violation.
(3)
Effect of the violation on the receiving water.
(4)
Effect of the violation on the Town or County sewerage system.
(5)
Effect of the violation on the health and safety of the Town or County
employees.
(6)
Compliance history of the user.
(7)
Good faith of the user.
C.
The Town Board shall approve the enforcement response plan. The enforcement
response plan shall be reviewed at least every five years.
A.
Notice of violation. 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 user a written
notice stating the nature of the violation. Within 10 calendar days
of the date that the Superintendent mails the notice, the user shall
submit to the Superintendent an explanation of the violation and a
plan for the satisfactory correction and prevention thereof. 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.
B.
Consent orders. 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.
C.
Administrative or compliance orders.
(1)
When the Superintendent finds that a user has violated or continues
to violate this chapter or a permit or consent order issued thereunder,
the Superintendent 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.
(2)
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:
D.
Revocation or suspension of registration.
(1)
Failure to supply all materials free from defects and to execute
all work in accordance with modern standard practices and applicable
safety standards shall be cause for revocation or suspension of the
registration. More specifically, the following current standards shall
apply.
(a)
Pipe laying and trench backfill:
[1]
ASTM Specifications C-12, C-13 and D2321.
[2]
Gravity Sanitary Sewer Design and Construction, ASCE and WPCF.
[3]
Building Code of New York State.
[4]
Pipe manufacturer's recommendations.
[5]
American Society of Civil Engineers Manual on Engineering Practices
No. 37.
[6]
Standard Specifications for Sanitary Sewer of the Town of Colonie
inclusive of any construction drawings or typical details.
(b)
Trench excavation: safety standards and regulations of the New
York State Department of Labor and Occupational Safety and Health
Administration.
(2)
Excessive or unnecessary impacts to public roadways, sidewalks, rights-of-way,
water, storm or sanitary utilities due to poor workmanship or negligence
of the lateral contractor shall be cause for revocation or suspension
of the registrant.
(3)
Failure to adequately protect the public from hazards associated
with sewer installation or repair shall be cause for revocation or
suspension of the registrant.
(4)
Failure to obtain a permit, maintain insurance, or schedule inspections,
or lateral contractor's backfill of trenches prior to inspection
shall be cause for revocation or suspension of the registrant.
E.
Administrative fines.
(1)
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 established by the Town Board. Each day on which
noncompliance shall occur or continue shall be deemed a separate and
distinct violation.
(2)
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:
F.
Cease-and-desist orders.
(1)
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:
(2)
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:
G.
Termination of wastewater discharge permit.
(1)
The Town may terminate a wastewater discharge permit issued to any
user for the following reasons:
(a)
Violation of permit conditions or conditions of an administrative
order or special agreement;
(b)
Failure to accurately report the wastewater constituents and
characteristics of its discharge, in the manner required by the conditions
of the wastewater discharge permit;
(c)
Failure to report significant changes in operations or wastewater
constituents and characteristics;
(d)
Refusal of reasonable access to the user's premises for
the purpose of inspection, monitoring, or sampling;
(e)
Failure to pay administrative fines, fees or user charges.
(2)
Noncompliant industrial users will be notified, by registered mail,
of the proposed termination of their wastewater permit.
(3)
The user may, within 15 calendar days of the date the Superintendent
mails such notification, petition the Superintendent to permit continued
use of the Town sewerage system by the user. Such petition shall be
in written form and shall be transmitted to the Superintendent by
registered mail. The Superintendent shall then:
H.
Show-cause hearing.
(1)
The Superintendent may order any user appealing administrative remedies for violations of this chapter to show cause, before the Town 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 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 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 § 155-52J. 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 § 155-52J.
(2)
The Town Board may itself conduct the hearing, or may designate any
of its members or any officer or employee of the Town to conduct the
hearing:
(a)
Issue, in the name of the Town Board, notices of hearings requesting
the attendance and testimony of witnesses, and the production of evidence
relevant to any matter involved in such hearings;
(b)
Take the evidence;
(c)
Take sworn testimony;
(d)
Transmit a report of the evidence and hearing, including transcripts
and other evidence, together with recommendations to the Town Board
for action thereon.
(3)
After the Town 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.
I.
Failure of user to petition the Superintendent. 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 fine shall be deemed waived.
J.
Notice. 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
at the address where the user's effluent is discharged to the
Town sewerage system. Any notice, petition, or other communication
mailed to the Superintendent shall be addressed and mailed to the
Town of Colonie Department of Public Works Division of Pure Waters.
K.
Right to choose multiple remedies. 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 that combines more than one enforcement
action.
A.
Civil actions for penalties.
(1)
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 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 a 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 Attorney, or his
designated attorney, at the request of the Superintendent in the name
of the Town, in any court of competent jurisdiction giving preference
to courts local to the Town. In addition to the above-described penalty,
the Superintendent may recover all damages incurred by the Town 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 attorneys' fees incurred by the Town in enforcing
the provisions of this article, including reasonable attorneys'
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.
(2)
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.
(3)
Such civil penalty may be released or compromised by the Superintendent
before the matter has been referred to the Town Attorney, and where
such matter has been referred to the Town 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 Attorney, with
the consent of the Superintendent.
B.
Court orders.
(1)
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:
(2)
Any such court order shall be sought in an action brought by the
Town Attorney, at the request of the Superintendent, in the name of
the Town, in any court of competent jurisdiction giving precedence
to courts local to the Town.
(3)
The Town 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.
C.
Criminal penalties.
(1)
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.
(2)
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.
(3)
No prosecution, under this section, shall be instituted until after
final disposition of a show-cause hearing, if any, has been instituted.
D.
Additional injunctive relief. 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, 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.
E.
Summary abatement.
(1)
Notwithstanding any inconsistent provisions of this chapter, whenever
the Superintendent finds 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 immediately 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.
(2)
If the user is not within the geographic boundaries of the Town,
the right of summary abatement to discontinue, abate, or alleviate
conditions or activities shall be those prescribed in the intermunicipal
agreement.
(3)
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. The Town is
relieved of all financial liability associated with responding to
an emergency caused by a violation of this chapter and reserves the
right to recoup expenses associated with mitigating the emergency.
A.
Delinquent payments.
(1)
If there shall be any payments which are due to the Town, 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, 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.
(2)
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
and/or the Town Receiver of Taxes shall report the names of the defaulting
persons to the Town Supervisor, the Town Clerk, the Town Sole Assessor,
the Town Receiver of Taxes, and the Town Comptroller on or before
December 15 of the same year. The Town Sole 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 the
Town in the next succeeding year, and the Town Sole Assessor is directed
to collect the same in the same manner as real property taxes due
and owing to the Town are collected.
(3)
Where charges are delinquent and the violator is not a resident of
the Town, or is located outside the geographical boundaries of the
Town, then the Town 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 chapter,
to the real property taxes due to the County in the next ensuing year.
B.
Performance bonds. 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 Town,
in a sum not to exceed a value determined by the Superintendent to
be necessary to achieve consistent compliance.
C.
Liability insurance. 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 damage caused by its discharge.
D.
Informant rewards. The Superintendent is authorized to pay up to
$500 for information leading to the discovery of noncompliance by
a user.
E.
Public notification. The Superintendent shall provide public notification,
in the newspaper with the largest circulation in the Town and/or the
official Town newspaper, of users that 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. The cost of such publications shall be shared equally
amongst the users listed in the public notification.
F.
Contractor listings.
(1)
Users that 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.
(2)
Existing contracts for the sale of goods or services to the Town
held by a user found to be in significant violation with pretreatment
standards may be terminated at the discretion of the Town Board.
