Pennsylvania Act 1992-9 — PUBLICLY OWNED TREATMENT WORKS PENALTY LAW

Act text

PUBLICLY OWNED TREATMENT WORKS PENALTY LAW
                   Act of Mar. 26, 1992, P.L. 23, No. 9               Cl. 35
                                  AN ACT

     Providing for enhanced penalty authority for publicly owned
        treatment works which are authorized to enforce industrial
        pretreatment standards for industrial waste discharges.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

     Section 1.  Short title.
        This act shall be known and may be cited as the Publicly
     Owned Treatment Works Penalty Law.
     Section 2.  Legislative findings.
        The General Assembly finds as follows:
            (1)  Proper pretreatment of industrial wastes prior to
        discharge into publicly owned treatment works is essential
        for the proper functioning of the treatment works and the
        prevention of pollution of the waters of this Commonwealth.
            (2)  Publicly owned treatment works with approved
        pretreatment programs have the responsibility under Federal
        and State law for enforcement of pretreatment standards
        against industrial users of the publicly owned treatment
        works.
            (3)  Municipalities with jurisdiction over indirect
        discharges to and discharges from a publicly owned treatment
        works need adequate remedies and penalties for effective
        enforcement of the pretreatment programs.
            (4)  Limitations upon assessment of fines or penalties
        which may exist in certain municipal codes or home rule
        charters may prevent municipalities from pursuing effective
        enforcement and satisfying minimum pretreatment program
        requirements established under the Federal Water Pollution
        Control Act (62 Stat. 1155, 33 U.S.C. § 1251 et seq.).
     Section 3.  Definitions.
        The following words and phrases when used in this act shall
     have the meanings given to them in this section unless the
     context clearly indicates otherwise:
        "Approved pretreatment program."  A program for pretreatment
     of industrial waste approved by the Environmental Protection
     Agency or the Department of Environmental Resources in
     accordance with the Federal Water Pollution Control Act (62
     Stat. 1155, 33 U.S.C. § 1251 et seq.).
        "Board."  The board of directors of a municipal authority,
     the governing body of a political subdivision or the head of a
     State agency which has responsibility for administering a
     pretreatment program for a publicly owned treatment works.
        "Industrial user."  An establishment which discharges or
     introduces industrial wastes into a publicly owned treatment
     works (POTW).
        "Industrial waste."  The term shall have the meaning ascribed
     to it in the act of June 22, 1937 (P.L.1987, No.394), known as
     The Clean Streams Law, and the regulations adopted thereunder.
        "Pretreatment standard or requirement."  Any substantive or
     procedural provision of the Federal Water Pollution Control Act
     (62 Stat. 1155, 33 U.S.C. § 1251 et seq.) or the act of June 22,
     1937 (P.L.1987, No.394), known as The Clean Streams Law, or any
     rule or regulation, ordinance or term or condition of a permit
     or order adopted or issued by the Commonwealth or a POTW for the
     implementation or enforcement of an industrial waste
     pretreatment program established under the Federal Water
     Pollution Control Act or The Clean Streams Law.
        "Publicly owned treatment works (POTW)."  A publicly owned
     treatment works as defined by section 212 of the Federal Water
     Pollution Control Act (62 Stat. 1155, 33 U.S.C. § 1251 et seq.)
     which is owned by a state or municipality, as defined by section
     502(4) of the Federal Water Pollution Control Act. The term
     includes devices and systems used in the storage, treatment,
     recycling and reclamation of municipal sewage or industrial
     wastes of a liquid nature. It also includes sewers, pipes and
     other conveyances only if they convey wastewater to a POTW
     plant. The term also means:
            (1)  A municipality, as defined in section 502(4) of the
        Federal Water Pollution Control Act, which has jurisdiction
        over indirect discharges to and discharges from this type of
        treatment works.
            (2)  An authority created under the act of May 2, 1945
        (P.L.382, No.164), known as the Municipality Authorities Act
        of 1945, which has jurisdiction over indirect discharges to
        and discharges from this type of treatment works.

        Compiler's Note:  The Department of Environmental Resources,
            referred to in the def. of "approved pretreatment
            program," was abolished by Act 18 of 1995. Its functions
            were transferred to the Department of Conservation and
            Natural Resources and the Department of Environmental
            Protection.
     Section 4.  Penalty.
        (a)  Assessment.--
            (1)  In addition to proceeding under any other remedy
        available at law or equity for violation of pretreatment
        standards and/or requirements, a publicly owned treatment
        works with an approved pretreatment program may assess a
        civil penalty upon an industrial user for the violation. The
        penalty may be assessed whether or not the violation was
        willful or negligent. The civil penalty shall not exceed
        $25,000 per day for each violation, regardless of
        jurisdictional boundaries. Each violation for each separate
        day shall constitute a separate and distinct offense under
        this section.
            (2)  The publicly owned treatment works shall include as
        part of the notice of an assessment of civil penalties a
        description of the applicable appeals process to be followed,
        including the name, address and telephone number of the
        person responsible for accepting such appeal.
        (b)  Operational upsets.--For purposes of this section, a
     single operational upset which leads to simultaneous violations
     of more than one pretreatment standard or requirement shall be
     treated as a single violation as required by the Federal Water
     Pollution Control Act (62 Stat. 1155, 33 U.S.C. § 1251 et seq.).
     The publicly owned treatment works may, however, recover its
     costs for reestablishing the operation of the POTW, in addition
     to any civil penalty imposed under this section.
        (c)  Policy.--The board of the publicly owned treatment works
     shall publicly adopt a formal, written civil penalty assessment
     policy and make it publicly available. Each industrial
     discharger participating in the pretreatment program shall be
     given written notice of the policy. In developing the penalty
     assessment policy, the publicly owned treatment works shall
     consider damage to air, water, land or other natural resources
     of this Commonwealth and their uses; cost of restoration and
     abatement; savings resulting to the person in consequence of the
     violation; history of past violations; deterrence of future
     violations; and other relevant factors.
        (d)  Uses for penalties.--Civil penalties collected pursuant
     to this act shall be placed in a restricted account and shall
     only be used by the publicly owned treatment works for the
     repair of damage and any additional maintenance needed or any
     additional costs imposed as a result of the violation for which
     the penalty was imposed, to pay any penalties imposed on the
     publicly owned treatment works by the Federal or State
     Government for violation of pretreatment standards, for the
     costs incurred by the publicly owned treatment works to
     investigate and take the enforcement action that resulted in a
     penalty being imposed, for the monitoring of discharges in the
     pretreatment program and for capital improvements to the
     treatment works, including sewage collection lines, which may be
     required by the pretreatment program. Any remaining funds may be
     used for capital improvements to the treatment works, including
     collection lines.
     Section 5.  Injunctive relief.
        (a)  General rule.--
            (1)  The POTW shall have the power to obtain injunctive
        relief to enforce compliance with or restrain any violations
        of any pretreatment standard. Injunctive relief shall be
        granted upon the showing of one or more of the following:
                (i)  a discharge from an industrial user presents an
            imminent danger or substantial harm to the POTW or the
            public;
                (ii)  a discharge from an industrial user presents an
            imminent or substantial endangerment to the environment;
                (iii)  a discharge from an industrial user causes the
            POTW to violate any condition of its discharge permit; or
                (iv)  the industrial user has shown a lack of ability
            or intention to comply with a pretreatment standard.
            (2)  Notwithstanding paragraph (1), an injunction
        affecting an industrial operation not directly related to the
        condition or violation in question may be issued if the court
        determines that other enforcement procedures would not be
        adequate to affect prompt correction of the condition or
        violation. In addition to an injunction, the court and any
        such proceedings may levy civil penalties in accordance with
        section 4.
        (b)  Jurisdiction.--A POTW's power to seek injunctive relief
     shall apply to all industrial users regardless of jurisdictional
     boundaries. Injunctive proceedings may be prosecuted in the
     court of common pleas where the POTW is located, the activity
     has taken place, the condition exists or the public is affected,
     and to that end jurisdiction is hereby conferred in law and
     equity upon such courts.
     Section 6.  Construction with other laws.
        (a)  Other laws superseded.--The authority contained in this
     act shall apply to every publicly owned treatment works
     authorized by law to enforce an approved pretreatment program
     and shall supersede any limitation in a municipal law or a home
     rule charter as to the maximum amount of penalty that would
     otherwise apply under existing law.
        (b)  Uniform penalty.--This act shall not be construed to
     modify jurisdiction or procedures for the assessment or
     collection of fines and penalties by municipalities or publicly
     owned treatment works. It shall have the sole effect of making
     the penalty provided for in this act uniformly available to
     publicly owned treatment works.
     Section 7.  Penalty cumulative and concurrent.
        (a)  Other remedies preserved.--The penalty authorized in
     this act is intended to be concurrent and cumulative, and the
     provisions of this act shall not abridge or alter any right of
     action or remedy, now or hereafter existing in equity, or under
     the common law or statutory law, criminal or civil, available to
     a person, municipality or this Commonwealth.
        (b)  Appeal.--The industrial user charged with the penalty
     shall have 30 days to pay the proposed penalty in full, or, if
     the industrial user wishes to contest either the amount of the
     penalty or the fact of the violation, the industrial user must
     file an appeal of the action pursuant to the municipal law or
     home rule charter or, in the absence of either of these, within
     30 days pursuant to 2 Pa.C.S. (relating to administrative law
     and procedure). Failure to appeal within this period shall
     result in a waiver of all legal rights to contest the violation
     or the amount of the penalty.
     Section 8.  Repeal.
        All acts and parts of acts are repealed insofar as they are
     inconsistent with this act.
     Section 9.  Effective date.
        This act shall take effect in 30 days.