A.
The Superintendent shall prepare an enforcement response
plan. The enforcement response plan, in a step-by-step fashion, shall
outline the procedures to be followed to identify, document and respond
to violations by users of the POTW. All violations by users of the
POTW shall be met with some type of enforcement response. The response
shall be comprehensive and effective.
(1)
The enforcement response plan shall:
(a)
Describe how the Superintendent will investigate
instances of noncompliance.
(b)
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.
(c)
Adequately reflect the Village of Brewster Board
of Trustees' responsibility to enforce all applicable standards and
requirements.
(2)
The enforcement response plan shall contain:
(a)
Criteria for scheduling periodic inspection
and/or sampling visits to POTW users.
(b)
Forms and guidelines for documenting compliance
data in a manner which will enable the information to be used as evidence.
(c)
Systems to track due dates, compliance schedule
milestones, and pending enforcement actions.
(d)
Criteria, responsible personnel, and procedures
to select and initiate an enforcement action.
B.
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.
C.
The Village of Brewster Board of Trustees shall approve
the enforcement response plan. The enforcement response plan shall
be reviewed it from time to time.
A.
Notification of violation. Whenever the Superintendent
finds that any user has violated or is violating this Part 2, or any
wastewater discharge permit, order, prohibition, limitation or requirement
permitted by this Part 2, 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.
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 Part 2 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.
(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.
Administrative fines.
(1)
Notwithstanding any other section of this Part 2, any user who is found to have violated any provision of this Part 2, or a wastewater discharge permit or administrative order issued hereunder, shall be fined in an amount not to exceed $1,000 for their first offense; a fine of $1,500 for their second offense, if such second offense occurs within 731 days of the conviction of the first offense; and a fine of $3,000, if such third and additional offense occurs within 731 days of the conviction of the second offense or successive offense, respectively. 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:
E.
Cease-and-desist orders.
(1)
When the Superintendent finds that a user has violated
or continues to violate this Part 2 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:
F.
Termination of permit.
(1)
Any user who violates the following conditions of
this Part 2 or a wastewater discharge permit or administrative order,
or any applicable or state and federal law, is subject to permit termination:
(a)
Violation of permit conditions or conditions
of an administrative order;
(b)
Failure to accurately report the wastewater
constituents and characteristics of its discharge;
(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; or
(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 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:
G.
Water supply severance.
(1)
Whenever a user has violated or continues to violate
the provisions of this Part 2 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.
(2)
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:
H.
Show-cause hearing.
(1)
The Superintendent may order any user appealing administrative remedies for violations of this Part 2 to show cause, before the Village of Brewster Board of Trustees, 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 of Brewster Board of Trustees 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 Village of Brewster Board of Trustees 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 § 193-123J 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 § 193-123J.
(2)
The Village of Brewster Board of Trustees may itself
conduct the hearing, or may designate any of its members or any officer
or employee of the Village to conduct the hearing. The Village of
Brewster Board of Trustees or its designee may:[1]
(a)
Issue, in the name of the Village of Brewster
Board of Trustees, 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 Village of Brewster Board of Trustees for action thereon.
(3)
After the Village of Brewster Board of Trustees 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 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.
Notices. 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 Part 2 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 Part 2 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 Hall of the Village.
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 combining 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 Part 2, or any administrative order or determination of the Superintendent promulgated under this Part 2, 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 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 Part 2, or who fail to perform any duties imposed by this Part 2 or any administrative order or determination of the Superintendent promulgated under this Part 2, 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.
(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 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.
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 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.
(3)
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.
C.
Criminal penalties.
(1)
Any person who willfully violates any provision of this Part 2 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 Part 2, or wastewater permit, or who falsifies, tampers with
or knowingly renders inaccurate any monitoring device or method required
under this Part 2 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 subsection shall be instituted
until after final disposition of a show-cause hearing, if any was
instituted.
D.
Additional injunctive relief. Whenever a user has
violated or continues to violate the provisions of this Part 2 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.
E.
Summary abatement.
(1)
Notwithstanding any inconsistent provisions of this Part 2, whenever the Superintendent finds, after investigation, that any user is causing, engaging in or maintaining a condition or activity which, in the judgement 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.
(2)
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.
(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.
A.
Delinquent payments.
(1)
If there shall be any payments which are due to the Village, or any department thereof, pursuant to any article or section of this Part 2, 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 as established by the Village of Brewster Board of Trustees by resolution.[1]
(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
shall report the names of the defaulting persons to the Village Mayor,
the Village Clerk and the Assessor for the Village on or before December
15 of the same year. The 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 Part 2, to the real property taxes due and owing to Village in
the next succeeding year, and the Assessor is directed to collect
the same in the same manner as real property taxes due and owing to
the Village are collected.
(3)
Where charges are delinquent and the violator is not
a resident 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.
B.
Performance bonds. The Superintendent may decline
to reissue a permit to any user which has failed to comply with the
provisions of this Part 2 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.
C.
Liability insurance. The Superintendent may decline
to reissue a permit to any user which has failed to comply with the
provisions of this Part 2 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.
D.
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 disburse 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.
E.
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.
F.
Contractor listings.
(1)
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.
(2)
Existing contracts for the sale of goods or services
to the Village held by a user found to be in significant violation
with pretreatment standards may be terminated at the discretion of
the Village of Brewster Board of Trustees.