Township of Lower Providence, PA Supplemental Enforcement Action

Pursuant to the provisions of Act 9 of 1992,[1] 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 control authority, 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 5. 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.

[1]

Editor's Note: See the Publicly Owned Treatment Works Penalty Law, 35 P.S. § 752.1 et seq.

As part of any notice of assessment of civil penalties issued by the control authority 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 control authority.

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 the Federal Water Pollution Control Act. The control authority may, however, recover its costs for reestablishing the operation of the treatment works in addition to any civil penalty imposed under this section.

The Lower Perkiomen Valley Regional Sewer Authority as control authority shall publicly adopt a formal, written civil penalty assessment policy 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:

(1)

Damage to air, water, land or other natural resources of the Commonwealth of Pennsylvania and their uses;

(2)

Costs of restoration and abatement;

(3)

Savings resulting to the person in consequence of the violation;

(4)

History of past violations;

(5)

Deterrence of future violations; and

(6)

Other relevant factors.

Uses for penalties. All civil penalties collected pursuant to this section shall be placed by the control authority in a restricted account and shall only be used by the control authority and the publicly owned treatment works for the following uses:

(1)

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;

(2)

To pay any penalties imposed on the Lower Perkiomen Valley Regional Sewer Authority as control authority or the publicly owned treatment works by the federal or state government for violation of pretreatment standards;

(3)

For the costs incurred by the Lower Perkiomen Valley Regional Sewer Authority as control authority or publicly owned treatment works to investigate and take the enforcement action that resulted in a penalty being imposed;

(4)

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; and

(5)

Any remaining funds may be used for capital improvements to the treatment works, including collection lines.

Injunctive relief.

(1)

The control authority 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 Act 9 of 1992,[2] and 40 CFR 403.8(f)(l)(vi)(A). 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; or

(d)

The industrial user has shown a lack of ability or intention to comply with a pretreatment standard.

[2]

Editor's Note: See 35 P.S. § 752.1 et seq.

(2)

Notwithstanding the preceding Subsection F(1), 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 effect 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 and this Part 5.

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.

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 Lower Perkiomen Valley Regional Sewer Authority as control authority, or the commonwealth.