N.Y. Comp. Codes R. & Regs. tit. 21 § 10075.10

Current through Register Vol. 46, No. 16, April 17, 2024

Section 10075.10 - Administration and enforcement

(a) Powers of the general manager.

(1) The general manager is authorized to issue permits in accordance with this Part allowing discharge of wastes and stormwater to the B.S.A. POTW or MS4, as the case may be, to validate and issue connection permits, and to prevent illicit connections, activities, and discharges to the MS4.

(2) Notwithstanding any other provisions herein, the general manager or his authorized representative is authorized by this Part to take any of the following actions, through a notice of violation or otherwise, with respect to users whenever, in his sole discretion, any section of this Part is violated:

(i) reject the waste;

(ii) require pretreatment;

(iii) require a control over quantities and rate of discharge;

(iv) require a payment of a surcharge to be determined by the general manager based on reasonable assessment of the degree of violation and/or additional costs of treatment resulting from the violation;

(v) require surveillance and/or monitoring of discharges and attendant reporting;

(vi) require the development of compliance schedules and submission of attendant reports necessary to assure compliance;

(vii) modify or revoke the B.P.D.E.S. or any other permit;

(viii) terminate sewer service;

(ix) require implementation of best management practices to control illicit discharges and activities;

(x) require the elimination of illicit connections or illicit discharges;

(xi) require cessation of violating discharges, practices or operations;

(xii) require abatement or remediation of stormwater pollution or hazardous materials and the restoration of any affected property;

(xiii) require the performance of monitoring, analyses and reporting;

(xiv) require payment of a fine;

(xv) seek injunctive relief.

(3) The owner or operator of a commercial or industrial establishment shall provide, at his own expense, reasonable protection from accidental discharge of prohibited materials or other wastes into the MS4 through the use of structural and non-structural BMPs.

(4) Any person responsible for a property or premise, which is, or may be, the source of an illicit discharge or an activity contaminating stormwater, may be required to implement, at such person's expense, additional structural and non-structural BMPs to reduce or eliminate the source of pollutant(s) to the MS4.

(5) Compliance with all terms and conditions of a valid SPDES permit authorizing the discharge of stormwater associated with industrial activity, to the extent practicable, shall be deemed compliance with the provisions of this section.

(6) If refused access to private property, the general manager, or his or her authorized representative, may seek a warrant in a court of competent jurisdiction to be authorized to enter upon the property to determine whether a violation of B.S.A.'s regulations has occurred. Upon determination that a violation has occurred, the general manager or authorized representative may seek a court order to take any and all measures reasonably necessary to abate the violation and/or restore the property. The cost of implementing and maintaining such measures shall be the sole responsibility of the person responsible for the property or discharge or violation.

(7) Except in the event of an emergency, reasonable advance notice of the action to be taken shall be given by the general manager but, unless negotiated upon initiation by the user, shall in no case exceed 30 calendar days. Once notice of action is given, the user shall have 10 business days to respond to the charges contained therein or submit a response contesting the action.

(8) The general manager reserves the right to terminate or prevent a discharge after informal notice to the discharger to immediately halt a discharge which reasonably appears to present imminent endangerment to the health or welfare of persons, property of the B.S.A. POTW, MS4 or to the environment. Informal notice shall be followed as soon as practicable by action as provided by this section.

(9) Actions to be taken by the general manager shall be documented in the form of a letter, an administrative order, or other document as the general manager may reasonably determine.

(10) The general manager may promulgate administrative procedures, technical specifications or guidances to implement any and all sections of this Part. These procedures, specifications and guidances shall have the same force and effect as if they were fully set forth in this Part.

(b) Illicit discharges in emergency situations.

(1) The general manager may, without prior notice, suspend MS4 discharge access to a person when such suspension is necessary to stop an actual or threatened discharge which presents or may present imminent and substantial danger to the environment, to the health or welfare of persons, or to the MS4. The general manager shall notify the person of such suspension within a reasonable time thereafter in writing of the reasons for the suspension. If the violator fails to comply with a suspension order issued in an emergency, the general manager may take such steps as deemed necessary to prevent or minimize damage to the MS4 or to minimize danger to persons or the environment.

(2) Any person discharging to the MS4 in violation of this regulation may have their MS4 access terminated if such termination would abate or reduce an illicit discharge. The general manager will notify a violator in writing of the proposed termination of its MS4 access and the reasons therefor. The violator may petition the general manager for a reconsideration and hearing. Access may be granted by the general manager if he finds that the illicit discharge has ceased and the discharger has taken steps to prevent its recurrence. Access may be denied if the general manager determines in writing that the illicit discharge has not ceased or is likely to recur. A person commits a violation if the person reinstates MS4 access to premises terminated pursuant to this section, without the prior approval of the general manager.

(c) Suspension of a BPDES permit.

(1) The general manager may suspend a BPDES permit when such suspension is necessary in the opinion of the general manager, in order to stop a discharge which presents a hazard to the public health, safety or welfare, to the environment, or to the authority's sewerage system, or causes the authority to violate any condition of its N.P.D.E.S./S.P.D.E.S. permit.

(2) Any person notified of a suspension of his BPDES permit shall immediately stop the discharge of all industrial wastewater to the B.S.A. system. The general manager shall reinstate the BPDES permit upon written proof of satisfactory compliance with all discharge requirements of these regulations.

(d) Revocation of a BPDES permit.

(1) The general manager may revoke a BPDES permit upon a finding that the user has violated any provision of his permit or of these regulations or applicable Federal or State regulations, including, but not limited to:

(i) failure of the industrial user to report accurately the wastewater constituents and characteristics of his discharge;

(ii) failure of the industrial user to report significant changes in operation, or wastewater constituents and characteristics; and/or

(iii) refusal of reasonable access to the industrial user's premises for the purpose of inspection or monitoring.

(2) Any person whose BPDES permit has been revoked shall immediately stop all discharge of any wastes covered by the permit to any public sewer that is tributary to a sewer or sewer system of the authority. The general manager may disconnect or permanently block from such public sewer the industrial connection of any user whose permit has been revoked, if such action is necessary to insure compliance with the order of revocation.

(3) Before any further discharge of industrial wastewater may be made by the user, he must apply for a new BPDES permit and pay all charges that would be required upon initial application together with all delinquent fees, charges and such other sums as the discharger may owe to the authority. Costs incurred by the authority in revoking the permit and disconnecting the industrial sewer shall be paid for by the discharger before issuance of a new permit.

(e) Violations and civil liability.

(1) When the general manager finds that a person has violated, or continues to violate, any provision of these regulations, a B.P.D.E.S. permit or other discharge permit or order issued hereunder, or any other pretreatment standard or requirement, the general manager may impose upon such person a penalty in an amount not to exceed $10,000, which shall be assessed on a per violation, per day basis. In the case of monthly or other long-term average discharge limits, such penalty shall be assessed for each day during the period of violation. Each violation shall be a separate and distinct violation.

(2) Unpaid charges, fines, and penalties shall, after 30 calendar days, be assessed an additional penalty of 10 percent of the unpaid balance, and interest shall accrue thereafter at a rate of 18 percent per year. A lien against the person's property is hereby imposed for all unpaid charges, fines, and penalties.

(3) Persons desiring to dispute such penalties must file a written request with the general manager for a hearing to present evidence why such penalty should not be imposed. Where a request has merit, the general manager may convene a hearing on the matter. The general manager may add the costs of preparing administrative enforcement actions, such as notices and orders, to the penalty.

(4) Issuance of an administrative penalty shall not be a bar against, or a prerequisite for, taking any other action against the person.

(5) In determining the amount of the above fines, the general manager may consider factors such as, but not limited to, the nature of the violation, the magnitude of impact on human health, the environment, and/or the B.S.A. treatment plant operation caused by the violation, the users past violation record, and other relevant factors.

(6) Each day on which a violation is found to occur or continue shall be deemed a separate and distinct offense. A day shall consist of a 24-hour period beginning at 12:01 a.m. and ending the following 12:01 a.m.

(7) When, in the opinion of the general manager, or the governmental agencies having jurisdiction in the matter, a violation of these regulations is of such a nature as to be likely to cause damage to sewer systems or P.O.T.W. of the Buffalo Sewer Authority, or a threat to the health or safety of the inhabitants of any areas served, the Buffalo Sewer Authority may forthwith discontinue and sever any connections with its sewer system without any liability for prosecution or damages.

(f) Falsification of data. User representatives providing information and data as required for any application, record, report, plan, or other document required by these regulations shall be subject to the provisions of section 309(c)(2) of the Clean Water Act governing false statements, representations, or certifications.

(g) Notifications.

(1) Any person found in violation of these regulations or of any limitation or requirement of a permit issued hereunder, shall be served, by the general manager, with a written notice (except in the case of an emergency situation) stating the nature of the violation and identifying the enforcement actions which will or may be taken. Within 30 days of the date of notice, the person in violation shall submit a plan for corrective actions to be taken to prevent continuance or reoccurrence of the violation.

(2) In the event of an emergency situation (as determined by the general manager), the general manager is required only to give an informal notice in order to immediately and effectively halt a discharge which presents an imminent endangerment to the authority's facilities, the environment, or the health and welfare of persons.

(h) Show cause hearing.

(1) In the event of violation of any provision of the regulations by a user, either the authority or the user may request a hearing to show cause why enforcement action should not be taken. A notice shall be served on the user designating the time and place of the hearing to be held regarding the violations, the reasons why the action is to be taken, the proposed enforcement action, and requesting the user to show cause why the proposed enforcement action should not be taken.

(2) The authority may issue notice of such hearings requesting the attendance and testimony of witnesses and the production of evidence relevant to any matter involved in such hearings. Testimony will be taken under oath, recorded, and kept on file for inspection by the public or any interested party.

(3) Enforcement actions, if any, taken by the authority subsequent to the hearing shall be based upon the evidence presented. If the person in violation has failed to show cause why enforcement action should not be taken, the authority shall issue a directive to the user responsible for the violation specifying the remedial action to be taken and a schedule for completion of this action. Further orders and directives relative to the assessment of a fine(s), enforcement actions to be carried out, and/or other corrective actions required may also be issued.

(i) Legal action. If any user discharges into the authority's facilities in a manner which violates any provision of these regulations, Federal or State pretreatment requirements, or any orders of the authority, the B.S.A. may initiate an action to seek injunctive relief.

(j) Violations deemed a public nuisance. In addition to the enforcement processes and penalties provided, any condition caused or permitted to exist in violation of any of the provisions of this regulation is a threat to public health, safety, and welfare, and is declared and deemed a nuisance, and may be summarily abated or restored at the violator's expense, and/or a civil action to abate, enjoin, or otherwise compel the cessation of such nuisance may be taken.

(k) Improper use of sewers.

(1) The Buffalo Sewer Authority hereby reserves the right to inspect any existing building service sewer and drain, lateral or collecting sewers that discharge wastewater directly or indirectly to the authority's facilities. If it is found that such laterals or collecting sewers are used or maintained in such a way as to cause discharge of septic wastewater or groundwater and debris which exceeds the design criteria of said sewer, or any other substance deemed objectionable by the general manager, the general manager will give notice of the unsatisfactory condition to the offending discharger and shall direct that the condition be corrected.

(2) In cases of continued noncompliance with the general manager's directive, the Buffalo Sewer Authority may disconnect the said sewer from the authority' s sewerage system without any liability for prosecution or damages.

(l) Excessive sewer maintenance expense.

(1) Sewer or sewerage maintenance expenses which result from a user violation of any of the prohibited or limited discharge requirements in these regulations will be charged to the user in violation. Such maintenance may include but not be limited to stoppage, plugging, breakage, any reduction in sewer capacity or any other damage to sewers or sewerage facilities of the authority. The costs charged to the user in violation may include the costs and expenses for complete restoration of the impaired facilities to a functional condition.

(2) Refusal of the user in violation to pay the necessary maintenance expenses resulting from such violation shall constitute further violation of these regulations subject to a fine as defined in subdivision (c) in this section.

(m) Damage caused by prohibited waste discharge. Any industrial wastewater discharger who discharges, or causes the discharge, of prohibited wastewaters which cause damage to the authority's facilities, detrimental effects on treatment processes or any other damages resulting in costs to the sewer authority, shall be liable for all damage occasioned thereby.

(n) Discrepancies between actual and reported surchargeable waste quantities.

(1) When inspection or verification monitoring or other investigation by B.S.A. reveals a user's surchargeable waste constituents and/or waste volume to be substantially greater (20 percent greater) than reported in that user's most recent discharge monitoring report submitted and approved by B.S.A. for purpose of surcharge calculation, then the user may be required to resample for purpose of amending the surcharge calculation. At least three, 24-hour composite samples and flow measurements shall be obtained and analyzed in accordance with the B.S.A. Sampling and Analytical Guidelines Sheet (see Appendix 52 of this Title), either by the authority or by another independent laboratory acceptable to both parties, with all costs of sampling and analysis to be paid by the user. This new sample data along with any other relevant information or data obtained by the authority or submitted by the user shall be used to calculate a corrected surcharge according to the formula set forth in the B.S.A. Schedule of Sewer Rents and Other Charges (see Appendix 52 of this Title).

(2) Surcharges corrected on the basis of substantially greater surchargeable waste constituents shall be applicable to the period following the time when inspection, verification or other investigation revealed the discrepancy. Surcharges for periods preceding any surcharge amendment shall be based on the last set of data submitted by the user and approved by the B.S.A. for purpose of surcharge calculation.

(o) Annual publication of violators. At least annually, the Buffalo Sewer Authority shall publish a listing of all significant violators of the pretreatment standards and requirements.

N.Y. Comp. Codes R. & Regs. Tit. 21 § 10075.10