(A) Civil penalties.
(1) A user who has violated, or continues to violate, any provision of this chapter, a wastewater discharge permit or order issued hereunder, or any other pretreatment standard or requirement shall be liable to the control authority for a maximum civil penalty of $25,000 per violation, per day. In the case of a weekly, monthly or other long-term average discharge limit, penalties shall accrue for each day during the period of the violation. Such penalty shall be assessed in accordance with this chapter and Chapter 54 of this code of ordinances.
(2) The Industrial Pretreatment Coordinator may recover reasonable attorney 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 control authority.
(3) In determining the amount of civil liability, there shall be taken into account all relevant circumstances, including, but not limited to, the extent of harm caused by the violation, the magnitude and duration of the violation, 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.
(4) Filing a suit for civil penalties shall not be a bar against, or a prerequisite fix, taking any other action against a user.
(5) In the event any user violation(s) results in the imposition of a fine or other penalty on the control authority by EPA, the state or any other agency, such violation(s) shall be punishable by a civil penalty at less equal to the dollar amount imposed upon the control authority plus its administrative, legal, engineering costs and expenses, but not more than $25,000, per day, per violation.
(B) Civil penalties assessment policy.
(1) Pursuant to the provisions of 35 P.S. §§ 752.1 et seq., the publicly owned treatment works penalty law, 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 user for violation of any of the terms an provisions of the chapter. 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 division (B).
(2) As part of any notice of assessment of civil penalties issued by the control authority to an 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.
(3) For purposes of this division (B), 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 Federal Water Pollution Control Act (33 U.S.C. §§ 1251 et seq.). The control authority may, however, recover its cost for reestablishing the operation of the POTW treatment plant in addition to any civil penalty imposed under this division (B).
(4) The civil penalty provided for in this chapter is the formal, written civil penalty assessment policy of the control authority and shall be publicly available. Each user participating in the pretreatment program shall be given written notice of the policy. The penalty assessment policy shall consider:
(a) Damage to air, water, land or other natural resources of the commonwealth and their uses arising from discharge from users to the POTW;
(b) Cost of restoration and abatement;
(c) Savings resulting to the person in consequence of the violation;
(d) History of past violations;
(e) Deterrence of future violations; and
(f) Other relevant factors.
(5) Uses for penalties: all civil penalties collected pursuant to this division (B) shall be placed by the control authority in a restricted amount and shall only be used by the control authority and the POTW for the following uses:
(a) The repair of damage and any additional maintenance needed or any additional cost imposed as a result of the violation for which the penalty was imposed;
(b) Pay any penalties imposed on the control authority or the POTW by the federal or state government for violation of pretreatment standards;
(c) For the cost incurred by the control authority or POTW to investigate and take the enforcement action that resulted in a penalty being imposed;
(d) For the monitoring of discharges in the pretreatment program and for capital improvements to the POTW treatment plant, including sewage system, which may be required by the pretreatment program; and
(e) Any remaining funds may be used for capital improvements to the POTW treatment plant, including sewage system.
(6) Appeal: a user assessed with a civil penalty under the terms of this section shall have the right to appeal such action pursuant to the administrative appeal procedure provisions of § 53.171.
(7) The penalty authorized in this division (B) is intended to be concurrent and cumulative, and the provisions of this division (B) 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 the person, the control authority or the state.
(Res. 1998-10-18-A, passed 10-19-1998; Ord. 180, passed 12-21-1998)