N.Y. Public Authorities Law § 1178-a: Enforcement and special powers of the authority

§ 1178-a. Enforcement and special powers of the authority. 1.

Administrative sanctions and civil liability. a. Any user who has been

finally determined to violate any rules, regulations, permits or orders

of the authority made pursuant to this title, shall be strictly liable,

without regard to fault, to a penalty of not to exceed ten thousand

dollars per violation per day. Each violation shall be a separate and

distinct violation and, in the case of a continuing violation, each

day's continuance thereof shall be deemed a separate and distinct

violation. The penalties provided for herein shall be imposed by the

authority, pursuant to the rules and regulations of the authority.

b. The authority may bring suit for collection or recovery of any such

penalty in any court of competent jurisdiction. Any sanction, penalty,

action or cause of action for the recovery of a penalty, under this

title, may be settled or compromised by the authority, before or after

proceedings are brought to recover such penalties and prior to the entry

of judgment thereof. All penalties received by the authority shall be

deposited with the treasurer and applied by the board to the benefit of

the authority's sewer rent payors and bondholders.

c. In addition to the penalties provided herein, in the event of a

violation or threatened violation of any of the authority's rules,

regulations, permits, or orders, the authority is authorized to:

(i) obtain a warrant upon application to the Erie county court or any

other court of competent jurisdiction, based upon reasonable cause and

reliable information that such violation is threatened or has occurred,

for entry onto a user's premises or effluent source where entry has been

denied or obstructed; or

(ii) suspend or revoke any user's discharge permit; or

(iii) discontinue, disconnect or block the user's access to the sewer

system; or

(iv) obtain an injunction or other judicial relief upon application to

a court of competent jurisdiction, to enjoin any user from continuing

such violation or from carrying out the threat of such violation. In any

such suit the court shall have jurisdiction to grant the authority,

without bond or undertaking, such prohibitory or mandatory injunctions

as the facts may warrant, including prevention or abatement of pollutant

discharges, temporary restraining orders or preliminary injunctions; and

(v) recover the fee, cost or expense incurred by the authority for any

investigation, sampling, monitoring (enhanced or otherwise), removal and

remediation costs or other actual expenses, fees or costs, including

attorneys fees and costs.

d. Imposition of any sanction or penalty or application for judicial

relief, shall not be a bar against, or prerequisite for taking any other

action against a user.

e. In determining the amount of an administrative or civil penalty,

the authority or the court shall consider the seriousness of the

violation or violations, any history of such violations, any good faith

efforts to comply with applicable requirements and such other matters as

justice may require.

2. Summary abatement. Notwithstanding any inconsistent provisions of

law, whenever the general manager finds, after investigation, that any

person is discharging any pollutant, sewage, industrial waste or other

waste which, in his judgment, presents an imminent danger to the

facilities, the environment or the public health, safety or welfare of

persons and the general manager determines that it would be harmful to

delay action until an opportunity for a hearing can be provided, the

general manager may, without prior hearing, order such person by notice,

in writing wherever practicable or in such other form as in the general

manager's judgment will reasonably notify such person whose practices

are intended to be proscribed, to discontinue, abate or alleviate such

discharge, and thereupon such person shall immediately discontinue,

abate or alleviate such discharge. In the event of non-compliance with

such order, the authority is authorized to discontinue, disconnect or

block the user's access to the sewer system. Within thirty days after

the issuance of such order, the authority shall give written notice to

any such person which provides for an opportunity for a hearing.

3. Records, reports, inspections and entry. a. Whenever required to

carry out the purposes and objectives of this title, including but not

limited to, developing or assisting in the development of any discharge

limitation, or other limitation, prohibition or discharge standard,

pretreatment standard, or standard of performance; or determining

whether any industrial user is in violation of any such discharge

limitation, or other limitation, prohibition, discharge standard,

pretreatment standard, or standard of performance or the authority's

rules, regulations, permits or orders;

(i) the authority may require industrial users to:

(1) establish and maintain such records;

(2) make such reports;

(3) install, use and maintain such monitoring equipment or methods

(including where appropriate, biological monitoring equipment or

methods);

(4) sample such discharges, in accordance with such methods, at such

intervals, and in such manner as the authority shall prescribe in its

rules, regulations, permits or orders; and

(5) provide such other information as the authority may reasonably

require; and

(ii) except as otherwise provided by a court warrant or order, the

authority or its authorized representative, (including an authorized

contractor acting as a representative of the authority) upon

presentation of his credentials:

(1) shall have a right of entry, at all reasonable times, to, upon, or

through any premises in which any effluent source of an industrial user

is located or in which any records are required to be maintained

pursuant to this title or any rules, regulations, orders or permits of

the authority;

(2) may, at reasonable times during regular business hours, have

access to and copy any records required to be maintained pursuant to

this title or any rules, regulations, orders or permits of the

authority;

(3) may, during all times of industrial user discharges, inspect any

monitoring equipment or method which is required pursuant to this title

or any rules, regulations, orders or permits of the authority; and

(4) may, during all times of industrial user discharges, have access

to and sample any discharges or pollutants, resulting directly or

indirectly from activities or operations of the industrial user of the

premises in which an effluent source is located.

b. Any records, reports or information obtained under this section

shall, in the case of discharge data, be related to any applicable

limitation, toxic pretreatment, or performance standards, and shall be

available to the public, except that upon a showing satisfactory to the

authority by any person that records, reports, or information, or

particular part thereof (other than discharge data), to which the

authority has access under this section, if made public would divulge

methods or processes entitled to protection as trade secrets of such

person, the authority shall consider such record, report, or

information, or particular portion thereof confidential, except that

such record, report, or information may be disclosed to officers,

employees, or authorized representatives of the United States or New

York state concerned with carrying out the Clean Water Act or when

relevant to any proceeding under this title or the Clean Water Act.

4. Proceedings before the authority. a. Whenever the authority

determines, after investigation, that there has been a violation of any

of the provisions of this title or any rules, regulations, orders or

permits issued pursuant thereto, the authority shall give notice in

writing, in such form as will reasonably notify the alleged violator or

violators setting forth any thing or act done or omitted to be done or

claimed to be in violation of any such provisions, and requiring that

the matters complained of be corrected. Such notice shall inform the

violator of an opportunity for a hearing, or that the alleged violator

appear in person or by attorney before the authority, at a reasonable

time and place in said notice specified, and show cause why enforcement

action should not be taken.

b. The authority shall establish in its rules and regulations

procedures for the conduct of any hearings.

c. In any hearing, a hearing officer may administer oaths, examine

witnesses, and issue, in the name of the authority, notices of hearings

and subpoenas requiring the attendance and testimony of witnesses and

the production of evidence relevant to any matter involved in any

hearing conducted by the authority.

d. In any proceeding before the authority, the burden of proof, with

respect to violations of or liability imposed by this title or by rules,

regulations, orders or permits issued pursuant thereto shall be upon the

user or person cited by notice. In any such proof, the authority or the

hearing officer may rely upon the self-monitoring reports submitted by

the person being investigated or any other evidence.

e. After due consideration of the written and oral statements, and

testimony and arguments, or on default in appearance, the authority may

issue and enter such final order or make such final determination as it

deems appropriate under the circumstances, and shall notify such person

or persons thereof in writing.

f. The general manager may designate an agent of the authority or any

other person, independent of the authority, to serve and preside as

hearing officer.

g. In case of contumacy or refusal to obey a notice of hearing or

subpoena issued by the authority, the supreme court shall have

jurisdiction, upon application of the authority, to issue an order

requiring such person to appear and testify or produce evidence as the

case may require.