City of Lancaster, PA Enforcement; Violations and Penalties; Appeals

The Control Authority may suspend the services of the sewerage system and/or the permit of a person whenever such suspension is necessary, in the opinion of the Control Authority, in order to stop an actual or threatened discharge which presents or causes an imminent or substantial endangerment to the health or welfare of persons or to the environment or which causes interference to the sewerage system or which causes the City to violate any condition of its NPDES permit.

Any person notified of a suspension of the service of the sewerage system and/or its permit shall immediately stop or eliminate its contribution. In the event of a failure to immediately comply voluntarily with the suspension order, the Control Authority shall take such steps as it may deem necessary, which may include immediate severance of the sewer connection, to prevent or minimize damage to the sewerage system, its receiving stream or endangerment to the health and welfare of persons or the environment.

A person which is responsible, in whole or in part, for imminent endangerment shall submit a detailed written statement describing the causes of the harmful contribution and the measures taken to prevent any future occurrence to the Control Authority within such time period as shall be set by the Control Authority.

Revocation of permit.

The Control Authority may revoke an individual wastewater discharge permit for good cause, including, but not limited to, the following reasons:

(a)

Failure to notify Control Authority of significant changes to the wastewater prior to the changed discharge;

(b)

Failure to provide prior notification to Control Authority of changed conditions;

(c)

Misrepresentation or failure to fully disclose all relevant facts in the wastewater discharge permit application;

(d)

Falsifying self-monitoring reports and certification statements;

(e)

Tampering with monitoring equipment;

(f)

Refusing to allow the Director timely access to the facility premises and records;

(g)

Failure to meet effluent limitations;

(h)

Failure to pay fines;

(i)

Failure to pay sewer charges;

(j)

Failure to meet compliance schedules;

(k)

Failure to complete a wastewater survey or the wastewater discharge permit application;

(l)

Failure to provide advance notice of the transfer of business ownership of a permitted facility;

(m)

Violation of any pretreatment standard or requirement, or any terms of the wastewater discharge permit or this chapter; or

(n)

Failure to file reports required by this chapter.

Individual wastewater discharge permits shall be voidable upon cessation of operations or transfer of business ownership. All individual wastewater discharge permits issued to a user are void upon the issuance of a new individual wastewater discharge permit to that user.

The permit holder and the person in violation shall be notified of the proposed revocation of the permit and be offered an opportunity to show cause why the proposed action should not be taken. The opportunity to show cause shall be at a meeting with the Control Authority or designee. The notice of the meeting shall be served personally or by registered or certified mail (return receipt requested) at least five days prior to the meeting. Such notice may be served on any principal executive, general partner or corporate officer of the permit holder or the person. Service of notice to show cause shall not affect the rights and powers to immediately suspend service under Subsection D hereof.

Injunctive relief. The Control Authority, in the name of the City, may, through the City's Attorney, apply to any court of competent jurisdiction for the issuance of temporary or permanent injunctive relief to enforce compliance with or restrain any violations of this part or any pretreatment standard or any pretreatment requirement, as appropriate, which restrains or compels the specific performance of the individual wastewater discharge permit, order, or other requirement imposed by this part on activities of the user. The Control Authority may also seek such other action as is appropriate for legal and/or equitable relief, including a requirement for the user to conduct environmental remediation. A petition for injunctive relief shall not be a bar against, or a prerequisite for, taking any other action against a user. Injunctive relief shall be granted as is provided in the Publicly Owned Treatment Works Penalty Law (Act of March 26, 1992, P.L. 1992, No. 9).[1]

[1]

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

Civil penalties.

Whenever, on the basis of any information available, the Control Authority finds that any user has violated, or continues to violate, any provision of this part or has violated any permit condition or limitation, the Control Authority may assess a civil penalty under this subsection and shall be liable to the City for a maximum civil penalty of not less than $1,000 per violation, per day. In the case of a monthly or other long-term average discharge limit, penalties shall accrue for each day during the period of the violation. This subsection shall constitute the formal, written civil penalty assessment policy of the City.

A civil penalty may be assessed whether or not the violation was willful or negligent. Each violation for each separate day may, at the discretion of the Control Authority, constitute a separate and distinct offense under this subsection.

The amount of a civil penalty under this subsection shall not exceed $25,000 per violation. In addition to the civil penalty, the Control Authority, in the name of the City, may recover its costs for reestablishing the operation of the sewerage system, including reasonable attorneys' fees, court costs, and other expenses associated with enforcement activities, including sampling and monitoring expenses, and the cost of any actual damages incurred by the City.

(4)

Before issuing an order assessing a civil penalty under this subsection, the Control Authority shall give to the person to be assessed such penalty written notice of the Control Authority's proposal to issue such order and the opportunity to request, within 30 days of the date the notice is received by such person, a hearing on the proposed order before the Hearing Board as described in § 249-19.

(5)

In determining the amount of any penalty assessed under this subsection, the Control Authority shall take into account the nature, circumstances, extent and gravity of the violation or violations, the extent of actual or potential damage to air, water, land or other natural resources and their uses; and, with respect to the violator, ability to pay, any prior history of such violations, the degree of culpability, the economic benefit or savings (if any) resulting from the violation, deterrence of future violations, failure of the violator to comply with prior enforcement attempts; and such other matters as justice may require. Furthermore, the Control Authority shall take into account any economic benefit gained through the user's violation, and corrective actions by the user.

(6)

For purposes of this subsection, a single operational upset, as defined herein, which leads to simultaneous violations of more than one pollutant parameter or consecutive violations of one or more pollutant parameters shall be treated as a single violation.

(7)

If the person to be assessed such penalty fails to request a hearing on the proposed order within 30 days of the date the notice is received by such person, the Control Authority may issue an order assessing the civil penalty. Such order shall become final 30 days after its issuance unless the person assessed such penalty seeks judicial review in a court of competent jurisdiction.

(8)

Action taken by the Control Authority under this subsection shall not affect or limit the Control Authority's authority to enforce any provision of this part or affect any person's obligation to comply with any section of this part or with the terms and conditions of any permit issued to such person. Filing a suit for civil penalties shall not be a bar against, or a prerequisite for, taking any other action against a user.

(9)

Any person against whom a civil penalty is assessed under this subsection may obtain review of such assessment in a court of competent jurisdiction by filing a notice of appeal in such court within the thirty-day period beginning on the date the civil penalty order is issued and by simultaneously sending a copy of such notice by certified mail to the Control Authority.

(10)

If any person fails to pay an assessment of a civil penalty after the order making the assessment has become final or after a court has entered a final judgment in favor of the Control Authority, the Control Authority may request the City Solicitor to bring a civil action in a court of competent jurisdiction to recover the amount assessed (plus interest at currently prevailing rates from the date of the final order or the date of the final judgment, as the case may be). In such an action, the validity, amount and appropriateness of such penalty shall not be subject to review. Any person who fails to pay on a timely basis the amount of an assessment of a civil penalty shall be required to pay, in addition to such amount and interest, attorneys' fees and costs for collection proceedings.

Criminal penalty.

Violations: generally. Whoever violates any provision of this regulation or any permit issued hereunder shall, or order issued hereunder, or any other pretreatment standard or requirement shall, upon conviction, be guilty of a misdemeanor, and shall be punished by a fine and pay costs of prosecution to be collected as other fines and costs are by law collectible or be imprisoned. Each day during which a violation exists shall constitute a separate offense.

Falsifying information. Any person 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 regulation or a permit issued hereunder or who falsifies, tampers with, knowingly renders inaccurate any monitoring device or method required under this regulation shall, upon conviction in a summary proceeding, be sentenced to pay a fine or be imprisoned, or both, in accordance with local and state law.

As used in this section, the term "person" includes, as applied to partnerships and associations, the partners, members, officers and managers thereof, and, as applied to corporations, the officers and managers thereof.

Publication of significant violations. The Control Authority shall publish annually, in a newspaper of general circulation that provides meaningful public notice within the jurisdictions served by the POTW, a list of the users which, at any time during the previous 12 months, were in significant noncompliance with applicable pretreatment standards and requirements. The term "significant noncompliance" shall be applicable to all significant industrial users (or any other industrial user that violates any part of this chapter and as defined in § 249-4).

Public nuisances. Any violation of the prohibitions or effluent limitations of this regulation or any permit issued hereunder is hereby declared a public nuisance and may be corrected or abated as directed by the Control Authority. Any person 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.

Report of violation. The Control Authority may report violations of any federal or state standards or requirements which constitute violations of this regulation or any permit issued hereunder to the EPA or the DEP, or to both, and may forgo enforcement actions against the person responsible for such violation in order to allow enforcement action to be undertaken by the EPA or the DEP, or both.

Enforcement response plan. The Control Authority may adopt an enforcement response plan (ERP) containing detailed procedures on investigation and response to instances of industrial user noncompliance.

Application of enforcement actions. The foregoing enforcement actions may be exercised alternatively, concurrently or successively, and the enforcement of this regulation under any of the above enforcement actions shall not preclude enforcement under any other enforcement action. Selection of the enforcement action shall be in the discretion of the City based upon the circumstances and the nature of the violation.

Whenever the Control Authority denies, revokes, amends or suspends a permit required by this part or whenever the Authority makes an order, decision, determination or ruling affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any person, then the person aggrieved by the action of the Control Authority shall have the right to appeal such action to the Hearing Board established by this section.

All appeals to the Hearing Board shall be in writing and shall be filed with the Director of Public Works within 20 days from the date that the Authority took the action which is the subject matter of the appeal.

All appeals shall contain the following information:

The name, address and telephone number of the appellant.

The date on which the approving authority took the action which is the subject matter of the appeal.