(A) Introduction. The city hereby adopts and issues this policy for the assessment of civil penalties for violations of the pretreatment and/or other provisions in the city’s sewer ordinance.
(B) Purpose.
(1) Chapter 52, inter alia, establishes a regulatory system by which the city monitors and controls the quantity and quality of discharges to its sewage collection system from industrial and other users. A key to the success of this program is timely and meaningful enforcement of pretreatment regulations governing the discharge of industrial waste into the city’s sewage collection system.
(2) It is the purpose of this policy to establish procedures by which the city may assess administrative civil penalties. Nothing in this policy is to be construed as precluding any other action or remedy available, in equity or at law by any legal entity or governmental entity.
(C) Procedure for assessing civil penalties.
(1) Violations of the pretreatment and other ordinance provisions are discovered through a variety of mechanisms. These may include industrial users’ self-monitoring compliance reports; city sampling; city field inspections; reports from other governmental agencies; and reports from employees or citizens. When the city determines that a civil penalty is warranted, an investigation is initiated to determine the appropriate level of penalty. The purpose of the investigation is to evaluate the factors used to determine the amount of the civil penalty. The factors to be evaluated are the damage to the air, water, land or other natural resources of the commonwealth and their uses; costs of restoration and abatement; savings resulting to the user in consequence of the violation; history of past violations; deterrence of future violations; and other relevant factors, as well as the civil penalties factors as set forth in the Federal Clean Water Act (33 U.S.C. §§ 1251 et seq.) and the state’s Clean Streams Act (35 P.S. §§ 691.1 et seq.) The results of the investigation shall be documented and the appropriate penalty determined in accordance with the foregoing factors.
(2) Once the city has prepared a recommended penalty assessment, a show cause order is prepared by the coordinator. The show cause order shall contain the name and address of the user committing the violation; the specific violation or violations for which the penalty is sought with a brief description of the circumstances surrounding the violation or violations sufficient to provide notice to the user; an explanation of the factors selected to determine the penalty; the penalty proposed; and any other enforcement actions proposed to be taken at that time in addition to the penalty.
(3) The show cause order and attachments shall be submitted to the City Sewer Director. If the show cause order facially states a violation, the Sewer Director shall sign the show cause order and direct the user to appear before him or her for a show cause hearing on a date no sooner than 15 days from the issuance of the show cause order. The Sewer Director shall direct that the show cause order be served upon the user. Upon service of the show cause order, the Sewer Director shall advise the user that; the user has the right to be represented by counsel; a court reporter will be present to record the show cause hearing, the user is entitled to present witnesses and offer evidence on its own behalf; the user will have the right to cross examine any witness of the city; and any testimony presented at the show cause hearing will be under oath or affirmation
(4) The Sewer Director shall preside over the show cause hearing. At the show cause hearing, the coordinator shall present testimony and evidence in support of the proposed order. The user, with the assistance of its own counsel, shall have the opportunity to defend its actions and to challenge the proposed assessment of the penalty or other enforcement action. At the conclusion of the show cause hearing, the Sewer Director shall direct the coordinator and the industrial user, with the assistance of their respective counsels, to prepare proposed findings of fact, conclusions of law and orders. After consideration and review of the proposed findings of fact, conclusions of law and orders submitted, the Sewer Director shall prepare a final order which is supported by findings of fact and conclusions of law. This final order may be appealed to the county’s Common Pleas Court within 30 days of its issuance pursuant to 42 Pa.C.S.A. §§ 933 and 5571(b).
(5) Appealing a penalty or negotiating a compliance agreement shall not relieve a user of a duty to mitigate and/or correct any violation of any federal, state or local law, regulation, ordinance, permit or requirement. Penalties shall continue to accrue for existing or new violations during the negotiation or appeal process until the issues involved with such violations are resolved.
(D) Procedure for obtaining consent penalties.
(1) In addition to the unilateral penalty assessment just described, the coordinator may negotiate consent penalties in lieu of assessments.
(2) The procedures established herein for determining the appropriate penalties shall be used for obtaining consent penalties. In addition to the information required to be included in the show cause order, the coordinator shall also include a brief description of the circumstances which justify a negotiated penalty. Negotiated penalties may be less than unilateral penalties with justification, but the initial penalties sought must take into account the relevant and applicable penalties factors. As with assessed penalties, proposed consent penalties must be reviewed and approved by the Sewer Director.
(3) Factors to be considered in determining whether to seek a consent penalty include without limitation the nature and severity of the violation, compliance history, recalcitrance of the user, undue economic distress caused by assessment of the penalty according to the factors, and the negative impact which the penalty would have upon the users ability to achieve compliance. Consent penalties shall be incorporated into binding and enforceable consent order and agreements or compliance agreements negotiated to achieve timely and effective correction of the violation. All consent orders and agreements or compliance agreements shall stipulate further penalties for breach of any terms of such agreement.
(Ord. 1433, passed 7-1-2002)