§ 1230-G — Special enforcement powers with respect to wastewater facilities

§ 1230-g. Special enforcement powers with respect to wastewater\nfacilities. 1. In addition to any other enforcement powers provided by\nthis title or any other provision of law, with respect to the\njurisdiction, control, supervision, possession, operation and use of the\nwastewater system and its facilities and for the administration and\nenforcement of this title with respect to such waste water system, the\nwater board shall have the enforcement powers provided in this section.\nThe provisions of this section shall be liberally construed so as to\neffect the purpose of this section to permit the water board to qualify\nas a publicly-owned treatment works (POTW) under applicable federal and\nstate environmental laws.\n 2. As used or referred to in this section, unless a different meaning\nclearly appears from the context:\n (a) "Discharge" means any introduction of waste into the wastewater or\nstorm water facilities from any effluent source.\n (b) "Domestic sewage" means a combination of wastes from the\nnon-commercial preparation, cooking, and handling of food; human bodily\nwastes and similar matter from sanitary conveniences in dwellings,\ncommercial buildings, industrial buildings and institutions; or any\nother wastes from non-commercial, non-industrial or non-institutional\nactivities.\n (c) "Effluent source" means a source of introduction of any waste into\nthe wastewater or storm water facilities.\n (d) "Hazardous substance" means any substance that:\n (i) is identified or listed as a hazardous waste or acute hazardous\nwaste in regulations promulgated pursuant to section 27-0903 of the\nenvironmental conservation law and all amendments thereto, regardless of\nwhether at the time of release the substance was actually a waste; or\n (ii) appears on the list of substances hazardous or acutely hazardous\nto public health, safety or the environment in regulation promulgated\npursuant to paragraphs (a) and (b) of subdivision one of section 37-0103\nof the environmental conservation law and all amendments thereto; and\nany substance on the list established by the United States environmental\nprotection agency for reporting pursuant to 42 U.S.C. § 11023, as\namended.\n (d) "Industrial user" means any person or effluent source that\ndischarges industrial waste.\n (e) "Industrial waste" means any liquid, solid, or gaseous substance,\nor combination thereof, resulting from any process of industrial,\ncommercial, governmental and institutional concerns, manufacturing,\nbusiness, trade, or research, including the development, recovery, or\nprocessing of natural resources, or from sources other than those\ndescribed as domestic sewage. Groundwater and surface runoff may be\nconsidered to be industrial waste if contaminated with industrial\nprocess chemical constituents.\n (f) "Pollutant" means dredged spoil, solid waste, incinerator residue,\nsewage, garbage, sewage sludge, munitions, chemical wastes, biological\nmaterials, radioactive materials, heat, wrecked or discarded equipment,\nrock, sand, cellar dirt and industrial, municipal and agricultural waste\ndischarged into water.\n (g) "Sewage" or "wastewater" means any combination of wastes from\nresidences, business buildings, institutions and industrial\nestablishments, together with such ground, surface and storm waters as\nmay be present.\n 3. (a) The water board shall adopt a schedule of administrative or\ncivil penalties not to exceed ten thousand dollars per violation per day\nto be assessed against any person who has been finally determined to\nviolate any rules, regulations, permits or orders of the water board\nmade pursuant to this title. In determining the amount of an\nadministrative or civil penalty, the water board or the court shall\nconsider the seriousness of the violation or violations, any history of\nsuch violations, any good faith efforts to comply with applicable\nrequirements and such other matters as justice may require. The\npenalties provided for in this subdivision shall be imposed by action of\nthe water board after a hearing meeting the requirements of due process\npursuant to the rules and regulations of the water board.\n (b) The water board may bring suit for collection or recovery of any\nsuch penalty in any court of competent jurisdiction. Any sanction,\npenalty, action or cause of action for the recovery of a penalty, under\nthis title, may be settled or compromised by the water board, before or\nafter proceedings are brought to recover such penalties and prior to the\nentry of judgment thereof. All penalties received by the water board\nshall be deposited with the treasurer and applied by the board to the\nbenefit of the water board users and authority bondholders.\n (c) In addition to the penalties provided in this subdivision, in the\nevent of a violation or threatened violation of any of the water board's\nrules, regulations, permits, or orders, the water board is authorized\nto:\n (i) obtain a warrant upon application to any court of competent\njurisdiction, based upon reasonable cause and reliable information that\nsuch violation is threatened or has occurred, for entry onto a user's\npremises or effluent source where entry has been denied or obstructed;\nor\n (ii) suspend or revoke any user's discharge permit; or\n (iii) discontinue, disconnect or block the person or user's access to\nthe system; or\n (iv) obtain an injunction or other judicial relief upon application to\na court of competent jurisdiction, to enjoin any person or user from\ncontinuing such violation or from carrying out the threat of such\nviolation. In any such suit the court shall have jurisdiction to grant\nthe water board, without bond or undertaking, such prohibitory or\nmandatory injunctions as the facts may warrant, including prevention or\nabatement of pollutant discharges, temporary restraining orders or\npreliminary injunctions; or\n (v) recover costs or expenses incurred by the water board for any\ninvestigation, sampling, monitoring (enhanced or otherwise), removal and\nremediation costs or other actual expenses, fees or costs, including\nattorneys' fees and costs.\n The imposition of any sanction or penalty or application for judicial\nrelief, shall not be a bar against, or prerequisite for taking any other\naction against any person.\n 4. Notwithstanding any inconsistent provisions of law, whenever the\nexecutive director finds, after investigation, that any person is\ndischarging any pollutant, sewage, industrial waste or other waste\nwhich, in his judgment, presents an imminent danger to the system\nfacilities, the environment or the public health, safety or welfare of\npersons and the executive director determines that it would be harmful\nto delay action until an opportunity for a hearing can be provided, the\nexecutive director may, without prior hearing, order such person by\nnotice, in writing wherever practicable or in such other form as in the\nexecutive director's judgment will reasonably notify such person whose\npractices are intended to be proscribed, to discontinue, abate or\nalleviate such discharge, and thereupon such person shall immediately\ndiscontinue, abate or alleviate such discharge. In the event of\nnon-compliance with such order, the water board is authorized to\ndiscontinue, disconnect or block the user's access to the system. Within\nten days after the issuance of such order, the water board shall give\nwritten notice to any such person which provides for an opportunity for\na hearing.\n 5. (a) Whenever required to carry out the purposes and objectives of\nthis title, including, but not limited to, developing or assisting in\nthe development of any discharge limitation, or other limitation,\nprohibition or discharge standard, pretreatment standard, or standard of\nperformance; or determining whether any industrial user is in violation\nof any such discharge limitation, or other limitation, prohibition,\ndischarge standard, pretreatment standard, or standard of performance or\nthe water board's rules, regulations, permits or orders;\n (i) the water board may require industrial users to:\n (1) establish and maintain such records;\n (2) make such reports;\n (3) install, use and maintain such monitoring equipment or methods\n(including where appropriate, biological monitoring equipment or\nmethods);\n (4) sample such discharges, in accordance with such methods, at such\nintervals, and in such manner as the water board shall prescribe in its\nrules, regulations, permits or orders; and\n (5) provide such other information as the water board may reasonably\nrequire; and\n (ii) except as otherwise provided by a court warrant or order, the\nwater board or its authorized representative, (including an authorized\ncontractor acting as a representative of the water board) upon\npresentation of his credentials:\n (1) shall have a right of entry, at all reasonable times, to, upon, or\nthrough any premises in which any effluent source of an industrial user\nis located or in which any records are required to be maintained\npursuant to this title or any rules, regulations, orders or permits of\nthe water board;\n (2) may, at reasonable times during regular business hours, have\naccess to and copy any records required to be maintained pursuant to\nthis title or any rules, regulations, orders or permits of the water\nboard;\n (3) may, during all times of industrial user discharges, inspect any\nmonitoring or other equipment or method which is required pursuant to\nthis title or any rules, regulations, orders or permits of the water\nboard; and\n (4) may, during all times of industrial user discharges, have access\nto and sample any discharges or pollutants, resulting directly or\nindirectly from activities or operations of the industrial user of the\npremises in which an effluent source is located.\n (b) Any records, reports or information obtained under this section\nshall, in the case of discharge data, be related to any applicable\nlimitation, toxic pretreatment, or performance standards, and shall be\navailable to the public, except that upon a showing satisfactory to the\nwater board by any person that records, reports, or information, or\nparticular portion thereof (other than discharge data), to which the\nwater board has access under this section, if made public would divulge\nmethods or processes entitled to protection as trade secrets of such\nperson, the water board shall consider such record, report, or\ninformation, or particular portion thereof confidential, except that\nsuch record, report, or information may be disclosed to officers,\nemployees, or authorized representatives of the United States or the\nstate concerned with carrying out the Clean Water Act 33 U.S.C. § 1251\net seq., and any applicable state law related thereto or when relevant\nto any proceeding under this title or the Clean Water Act, 33 U.S.C. §\n1251 et seq., and any applicable state law related thereto.\n 6. (a) Whenever the water board determines, after investigation, that\nthere has been a violation of any of the provisions of this title or any\nrules, regulations, orders or permits issued pursuant thereto, the water\nboard shall give notice in writing, in such form as will reasonably\nnotify the alleged violator or violators setting forth any thing or act\ndone or omitted to be done or claimed to be in violation of any such\nprovisions, and requiring that the matters complained of be corrected.\nSuch notice shall inform the violator of an opportunity for a hearing,\nor that the alleged violator appear in person or by attorney before the\nwater board, at a reasonable time and place in said notice specified,\nand show cause why enforcement action should not be taken.\n (b) The water board shall establish in its rules and regulations\nprocedures for the conduct of any hearings.\n (c) The executive director may designate an agent of the water board\nor any other person, independent of the water board, to serve and\npreside as hearing officer.\n (d) In any hearing, a hearing officer may administer oaths, examine\nwitnesses, and issue, in the name of the water board, notices of\nhearings and subpoenas requiring the attendance and testimony of\nwitnesses and the production of evidence relevant to any matter involved\nin any hearing conducted by the water board.\n (e) In any proceeding before the water board, the burden of proof,\nwith respect to violations of or liability imposed by this title or by\nrules, regulations, orders or permits issued pursuant thereto shall be\nupon the user or person cited by notice. In any such proof, the water\nboard or the hearing officer may rely upon the self-monitoring reports\nsubmitted by the person being investigated or any other evidence.\n (f) After due consideration of the written and oral statements, and\ntestimony and arguments, or on default in appearance, the water board\nmay issue and enter such final order to make such final determination as\nit deems appropriate under the circumstances, and shall notify such\nperson or persons thereof in writing.\n (g) In case of contumacy or refusal to obey a notice of hearing or\nsubpoena issued by the water board, the supreme court shall have\njurisdiction, upon application of the water board, to issue an order\nrequiring such person to appear and testify or produce evidence as the\ncase may require.\n