Village of Newark, NY Enforcement and Penalties

Describe how the Superintendent will investigate instances of noncompliance.

Describe the types of escalated enforcement actions that the Superintendent will take in response to all anticipated types of user violations and the time periods within which to initiate and follow up these actions.

Adequately reflect the Village Board's responsibility to enforce all applicable standards and requirements.

The Enforcement Response Plan shall contain:

Criteria for scheduling periodic inspection and/or sampling visits to POTW users.

Forms and guidelines for documenting compliance data in a manner which will enable the information to be used as evidence.

Systems to track due dates, compliance schedule milestones and pending enforcement actions.

(4)

Criteria, responsible personnel and procedures to select and initiate an enforcement action.

The range of appropriate enforcement actions shall be based on the nature and severity of the violation and other relevant factors, such as magnitude of the violation, duration of the violation, effect of the violation on the receiving water, effect of the violation on the POTW, effect of the violation on the health and safety of the POTW employees, compliance history of the user and good faith of the user and shall promote consistent and timely use of enforcement remedies.

The Village Board shall approve the Enforcement Response Plan. The Enforcement Response Plan shall be reviewed at least every five years.

§ 126-94 Administrative remedies.

Notification 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 person a written notice stating the nature of the violation. Within 10 calendar days of the date the Superintendent mails the notice, an explanation of the violation and a plan for the satisfactory correction and prevention thereof shall be submitted to the Superintendent by the user. 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.

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.

Administrative or compliance orders.

When the Superintendent finds that a user has violated or continues to violate this chapter or a permit or administrative order issued thereunder, he 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.

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:

Reject any frivolous petitions;

Modify or suspend the order; or

Order the petitioner to show cause in accordance with § 126-94H and may as part of the show cause notice request the user to supply additional information.

Administrative fines.

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 not to exceed $1,000 per violation. Each day on which noncompliance shall occur or continue shall be deemed a separate and distinct violation.

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:

Reject any frivolous petitions;

Modify or suspend the fine; or

Order the petitioner to show cause in accordance with § 126-94H and may as part of the show cause notice request the user to supply additional information.

Cease and desist orders.

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:

Comply forthwith.

Take such appropriate remedial or preventive action as may be needed to properly address a continuing or threatened violation, including halting operations or terminating the discharge.

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:

Reject any frivolous petitions;

Modify or suspend the order; or

Order the petitioner to show cause in accordance with § 126-94H and may as part of the show cause notice request the user to supply additional information.

Termination of permit.

Any user who violates the following conditions of this chapter or a wastewater discharge permit or administrative order or any applicable state and federal law is subject to permit termination:

Violation of permit conditions or conditions of an administrative order.

Failure to accurately report the wastewater constituents and characteristics of its discharge.

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.

Noncompliant industrial users will be notified, by registered mail, of the proposed termination of their wastewater permit.

The user may, within 15 calendar days of the date the Superintendent mails such notification, petition the Superintendent to permit continued use of the POTW by the user. Such petition shall be in written form and shall be transmitted to the Superintendent by registered mail. The Superintendent shall then:

Reject any frivolous petitions; or

Order the petitioner to show cause in accordance with § 126-94H and may as part of the show cause notice request the user to supply additional information.

Water supply severance.

Whenever a user has violated or continues to violate the provisions of this chapter or an order or permit issued hereunder, water service to the user may be severed and service will only recommence, at the user's expense, after it has satisfactorily demonstrated its ability to comply.

The user may, within 15 calendar days of severance, petition the Superintendent to reconnect water supply service. Such petition shall be in written form and shall be transmitted to the Superintendent by registered mail. The Superintendent shall then:

Reject any frivolous petitions;

Reconnect the water supply; or

Order the petitioner to show cause in accordance with § 126-94H and may as part of the show cause notice request the user to supply additional information.

Show cause hearing.

The Superintendent may order any user appealing administrative remedies for violations of this chapter to show cause, before the Village 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 Village Board regarding the violation, the reasons why the action is to be taken and the proposed enforcement action, and directing the user to show cause before the Village 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 § 126-94J of this article. 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 § 126-94J.

The Village Board may itself conduct the hearing, or may designate any of its members or any officer or employee of the Village to conduct the hearing and/or:

Issue, in the name of the Village Board, notices of hearings requesting the attendance and testimony of witnesses and the production of evidence relevant to any matter involved in such hearings.

Take the evidence.

Take sworn testimony.

(d)

Transmit a report of the evidence and hearing, including transcripts and other evidence, together with recommendations, to the Village Board for action thereon.

After the Village 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.

Failure of user to petition the Superintendent. In the event that 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.

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 where the user's effluent is discharged into transmission lines to the Village's POTW. Any notice, petition or other communication mailed to the Superintendent shall be addressed and mailed to the Village of Newark Offices.

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 combining more than one enforcement action.

§ 126-95 Judicial remedies.

Civil actions for penalties.

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 Village 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 Village Attorney or his designated attorney, at the request of the Superintendent in the name of the Village, in any court of competent jurisdiction giving preference to courts local to the Village. In addition to the above-described penalty, the Superintendent may recover all damages incurred by the Village 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 attorney's fees incurred by the Village in enforcing the provisions of this article, including reasonable attorney's 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.

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.

Such civil penalty may be released or compromised by the Superintendent before the matter has been referred to the Village Attorney, and where such matter has been referred to the Village Attorney, any such penalty may be released or compromised and any action commenced to recover the same may be settled and discontinued by the Village Attorney, with the consent of the Superintendent.

Court orders.

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:

Suspending, revoking or modifying the violator's wastewater discharge permit; or

Enjoining the violator from continuing the violation.

Any such court order shall be sought in an action brought by the Village Attorney, at the request of the Superintendent, in the name of the Village, in any court of competent jurisdiction giving precedence to courts local to the Village.

The Village 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.

Criminal penalties.

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.

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.

No prosecution, under this subsection, shall be instituted until after final disposition of a show cause hearing, if any, was instituted.

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 Village, 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.

Summary abatement.

Notwithstanding any inconsistent provisions of this chapter, whenever the Superintendent finds, after investigation, 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 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.

If the user is not within the geographic boundaries of the Village the right of summary abatement to discontinue, abate or alleviate conditions or activities shall be those prescribed in the intermunicipal agreement.

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.

Delinquent payments.

If there shall be any payments which are due to the Village 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 30 calendar days from the date of billing by the Village, 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.

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 shall report the names of the defaulting persons to the Village on or before December 15 of the same year. The Village Clerk 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 Village in the next succeeding year, and the Village Clerk is directed to collect the same in the same manner as real property taxes due and owing to the Village are collected.

Where charges are delinquent and the violator is not a resident of the Village or is located outside the geographical boundaries of the Village, then the Village 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 Law, to the real property taxes due to the county in the next ensuing year.

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 POTW, in a sum not to exceed a value determined by the Superintendent to be necessary to achieve consistent compliance.

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 POTW damage caused by its discharge.

Informant rewards. The Superintendent is authorized to pay up to $500 for information leading to the discovery of noncompliance by a user. In the event that the information provided results in an administrative fine or civil penalty levied against the user, the Superintendent is authorized to disperse up to 10% of the collected fine or penalty to the informant. However, a single reward payment may not exceed $10,000, including the discovery reward.

Public notification. The Superintendent shall provide public notification, in the daily newspaper with the largest circulation in the Village, of users which 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.

Contractor listings.

Users which 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 Village.