2006 New York Code - 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.