N.Y. Public Authorities Law § 1230-g: Special enforcement powers with respect to wastewater facilities

§ 1230-g. Special enforcement powers with respect to wastewater

facilities. 1. In addition to any other enforcement powers provided by

this title or any other provision of law, with respect to the

jurisdiction, control, supervision, possession, operation and use of the

wastewater system and its facilities and for the administration and

enforcement of this title with respect to such waste water system, the

water board shall have the enforcement powers provided in this section.

The provisions of this section shall be liberally construed so as to

effect the purpose of this section to permit the water board to qualify

as a publicly-owned treatment works (POTW) under applicable federal and

state environmental laws.

2. As used or referred to in this section, unless a different meaning

clearly appears from the context:

(a) "Discharge" means any introduction of waste into the wastewater or

storm water facilities from any effluent source.

(b) "Domestic sewage" means a combination of wastes from the

non-commercial preparation, cooking, and handling of food; human bodily

wastes and similar matter from sanitary conveniences in dwellings,

commercial buildings, industrial buildings and institutions; or any

other wastes from non-commercial, non-industrial or non-institutional

activities.

(c) "Effluent source" means a source of introduction of any waste into

the wastewater or storm water facilities.

(d) "Hazardous substance" means any substance that:

(i) is identified or listed as a hazardous waste or acute hazardous

waste in regulations promulgated pursuant to section 27-0903 of the

environmental conservation law and all amendments thereto, regardless of

whether at the time of release the substance was actually a waste; or

(ii) appears on the list of substances hazardous or acutely hazardous

to public health, safety or the environment in regulation promulgated

pursuant to paragraphs (a) and (b) of subdivision one of section 37-0103

of the environmental conservation law and all amendments thereto; and

any substance on the list established by the United States environmental

protection agency for reporting pursuant to 42 U.S.C. § 11023, as

amended.

(d) "Industrial user" means any person or effluent source that

discharges industrial waste.

(e) "Industrial waste" means any liquid, solid, or gaseous substance,

or combination thereof, resulting from any process of industrial,

commercial, governmental and institutional concerns, manufacturing,

business, trade, or research, including the development, recovery, or

processing of natural resources, or from sources other than those

described as domestic sewage. Groundwater and surface runoff may be

considered to be industrial waste if contaminated with industrial

process chemical constituents.

(f) "Pollutant" means dredged spoil, solid waste, incinerator residue,

sewage, garbage, sewage sludge, munitions, chemical wastes, biological

materials, radioactive materials, heat, wrecked or discarded equipment,

rock, sand, cellar dirt and industrial, municipal and agricultural waste

discharged into water.

(g) "Sewage" or "wastewater" means any combination of wastes from

residences, business buildings, institutions and industrial

establishments, together with such ground, surface and storm waters as

may be present.

3. (a) The water board shall adopt a schedule of administrative or

civil penalties not to exceed ten thousand dollars per violation per day

to be assessed against any person who has been finally determined to

violate any rules, regulations, permits or orders of the water board

made pursuant to this title. In determining the amount of an

administrative or civil penalty, the water board 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. The

penalties provided for in this subdivision shall be imposed by action of

the water board after a hearing meeting the requirements of due process

pursuant to the rules and regulations of the water board.

(b) The water board 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 water board, before or

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

entry of judgment thereof. All penalties received by the water board

shall be deposited with the treasurer and applied by the board to the

benefit of the water board users and authority bondholders.

(c) In addition to the penalties provided in this subdivision, in the

event of a violation or threatened violation of any of the water board's

rules, regulations, permits, or orders, the water board is authorized

to:

(i) obtain a warrant upon application to any 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 person or user's access to

the system; or

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

a court of competent jurisdiction, to enjoin any person or 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 water board, 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; or

(v) recover costs or expenses incurred by the water board for any

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

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

attorneys' fees and costs.

The 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 any person.

4. Notwithstanding any inconsistent provisions of law, whenever the

executive director 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 system

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

persons and the executive director determines that it would be harmful

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

executive director may, without prior hearing, order such person by

notice, in writing wherever practicable or in such other form as in the

executive director'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 water board is authorized to

discontinue, disconnect or block the user's access to the system. Within

ten days after the issuance of such order, the water board shall give

written notice to any such person which provides for an opportunity for

a hearing.

5. (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 water board's rules, regulations, permits or orders;

(i) the water board 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 water board shall prescribe in its

rules, regulations, permits or orders; and

(5) provide such other information as the water board may reasonably

require; and

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

water board or its authorized representative, (including an authorized

contractor acting as a representative of the water board) 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 water board;

(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 water

board;

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

monitoring or other equipment or method which is required pursuant to

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

board; 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

water board by any person that records, reports, or information, or

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

water board has access under this section, if made public would divulge

methods or processes entitled to protection as trade secrets of such

person, the water board 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 the

state concerned with carrying out the Clean Water Act 33 U.S.C. § 1251

et seq., and any applicable state law related thereto or when relevant

to any proceeding under this title or the Clean Water Act, 33 U.S.C. §

1251 et seq., and any applicable state law related thereto.

6. (a) Whenever the water board 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 water

board 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

water board, at a reasonable time and place in said notice specified,

and show cause why enforcement action should not be taken.

(b) The water board shall establish in its rules and regulations

procedures for the conduct of any hearings.

(c) The executive director may designate an agent of the water board

or any other person, independent of the water board, to serve and

preside as hearing officer.

(d) In any hearing, a hearing officer may administer oaths, examine

witnesses, and issue, in the name of the water board, 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 water board.

(e) In any proceeding before the water board, 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 water

board or the hearing officer may rely upon the self-monitoring reports

submitted by the person being investigated or any other evidence.

(f) After due consideration of the written and oral statements, and

testimony and arguments, or on default in appearance, the water board

may issue and enter such final order to make such final determination as

it deems appropriate under the circumstances, and shall notify such

person or persons thereof in writing.

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

subpoena issued by the water board, the supreme court shall have

jurisdiction, upon application of the water board, to issue an order

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

case may require.