Current through September 18, 2024
1.10.1
Administrative Enforcement
Options
A. The NBC may implement any
combination of the following administrative and/or judicial responses if a user
is in violation of any provision of State or Federal requirements, R.I. Gen.
Laws Chapter 46-25, this Part, a permit, or an order issued by the NBC.
1. Issue a Notice of Violation;
2. Require the user to attend a mandatory
compliance meeting at the NBC Corporate Office during business hours, or at any
other reasonable time, to discuss its violations or alleged violations, the
remedial actions that it might take, and the actions the NBC might take under
the Act and this Part;
3. Issue an
Administrative Order requiring any action that the NBC is authorized to
require;
4. Enter into a Consent
Order or Settlement Agreement with the user;
5. Revoke, modify, deny, suspend, or refuse
to renew a permit issued under the Act;
6. Terminate or suspend sewer services
provided to the user;
7. Assess a
civil administrative penalty;
8.
Institute a court action for civil penalties, criminal fines and/or other
criminal punishment, injunctive relief, reimbursement of costs and/or damages
resulting from a violation or threatened violation; and/or any other relief
authorized by law or Regulation.
1.10.2
Notice of Violations
Whenever the NBC finds that a user has violated or is
violating this Part, the Act, a permit, or order issued by the NBC, the NBC may
serve upon said user written notice of the violation. The Notice of Violation
("NOV") shall identify each requirement the NBC asserts was violated, the
occasion that each requirement was violated, and may require the user to comply
by a date certain with the requirement(s) identified in the NOV and/or submit
to the NBC by a date certain a written report describing the measures the user
will take to achieve compliance with the requirements identified in the NOV and
the date by which such measures will be taken. The issuance of a NOV does not
preclude the NBC from taking any additional enforcement action it deems
necessary and appropriate. The NOV may direct the user to submit written
proposals for achieving compliance, may direct the user to increase the
frequency of self-monitoring, or may require the user to comply with any other
requirements the NBC deems necessary and appropriate to address the
noncompliance. Submission of any plan to achieve compliance shall in no way
relieve the user of liability for any violations occurring before or after
receipt of the NOV. Nothing in this section shall limit the authority of the
NBC to take any action, including emergency actions or any other enforcement
action, without first issuing a Notice of Violation.
1.10.3
Administrative Orders
A. Immediate Compliance Order
When the NBC finds that a user has violated or continues to
violate this Part, the Act, a permit or order issued by the NBC, or any other
pretreatment standard or requirement, the NBC may issue an order to the user
responsible for the discharge, directing that the user come into compliance
within a reasonable time period established by the NBC. Compliance Orders may
also contain such other requirements as may be reasonably necessary and
appropriate to address the noncompliance, including, but not limited to, the
installation of pretreatment technology and/or additional self-monitoring and
management practices designed to minimize the amount of pollutants discharged
to the sewer. A Compliance Order does not relieve the user of liability for any
violation, including any continuing violation. Issuance of a Compliance Order
shall not be a prerequisite to taking any other action against the user,
including, but not limited to, assessment of an Administrative Penalty.
B. Cease and Desist Orders
1. When the NBC finds that a user is
violating this Part, the Act, a permit or any order issued by the NBC, or any
other pretreatment standard or requirement, or that the user's violations are
likely to reoccur and/or continue, the NBC may issue an order to the user
directing the user to halt all illegal or unauthorized discharges to the NBC's
Facilities immediately.
a. If the NBC
determines that an emergency exists, the Cease and Desist Order may be given
verbally and/or telephonically.
b.
Issuance of a Cease and Desist Order shall not be a prerequisite to taking any
other action against the user, including but not limited to, assessment of an
Administrative Penalty.
1.10.4
Consent Orders
When the NBC is able to reach an agreement with the user
responsible for the noncompliance, the NBC and the user may enter into a
Consent Order, Assurance of Voluntary Compliance, or other similar document
establishing the agreement with the user. Such orders typically include:
specific actions to be taken by the user within a particular time frame; a
schedule for payment of the fines and enforcement costs; and stipulated
penalties. Consent Orders shall have the same force and effect as
Administrative Orders and shall be judicially enforceable.
1.10.5
Suspension of Permit or
Service
The NBC may suspend wastewater treatment service and/or a
permit to effectively halt or prevent any actual or threatened illegal or
unauthorized discharge of pollutants into the NBC's Facilities. The NBC shall
notify the user of the suspension, by certified and regular mail, at which time
the user may utilize the hearing procedures included herein.
1.10.6
Emergency Suspensions
A. Whenever the NBC determines that
suspension of wastewater treatment service or of a permit is necessary to stop
an actual or threatened discharge presenting or causing an imminent or
substantial endangerment to the health or welfare of persons, the POTW, or the
environment, the NBC may give the user informal notice of the suspension.
Informal notice shall consist of a telephone call to the discharging facility's
owner or any agent or officer of a corporation. The order to suspend
discharging shall become effective notwithstanding the inability to contact the
user. A registered or certified letter, return receipt requested, that states
the existence of the violation and the action deemed necessary will be sent
within five (5) days to the user. No request for a hearing prior to the
issuance of the Emergency Order to suspend discharging may be made.
B. Any user notified of an emergency
suspension of their wastewater treatment service and/or suspension of their
wastewater discharge permit shall immediately stop or eliminate its
contribution. In the event of a user's failure to immediately comply
voluntarily with the Suspension Order, the NBC shall take such steps as deemed
necessary, including immediate severance from the sewer facilities, to prevent
or minimize damage to the NBC, its receiving stream, or any individuals. The
NBC shall allow the user to recommence its discharge when the endangerment has
passed, unless proceedings are initiated to terminate the user's
permit.
C. A user that is
responsible, in whole or in part, for imminent endangerment to the health and
welfare of persons shall submit a detailed written statement describing the
causes of the harmful contribution and the measures taken to prevent any
further occurrence to the NBC within five (5) days of the occurrence that led
to the emergency suspension.
1.10.7
Termination of Permit and/or
Wastewater Treatment Service
A. Grounds
for termination of a permit and/or wastewater treatment service include, but
are not limited to, the following:
1. Failure
to apply for and/or obtain a required permit from the NBC prior to discharge
into the NBC's Facilities.
2.
Violation of any of the conditions outlined in the user's permit.
3. Violation of any of the provisions of this
Part, the Act, any permit or order issued by the NBC, or any applicable State
or Federal law.
B. Any
user issued an Administrative Order terminating their permit and/or their
wastewater treatment service shall be entitled to utilize the hearing
procedures included herein.
1.10.8
Security Requirements
A. Performance Bonds. The NBC may decline to
reissue a permit to any user that has failed to comply with the provisions of
this Part, the Act, any order or previous permit issued hereunder unless such
user first files with the NBC a satisfactory bond, payable to the NBC, in a sum
not to exceed a value determined by the NBC to be necessary to achieve
consistent compliance.
B. Liability
Insurance. The NBC may decline to reissue a permit to any user that has failed
to comply with the provisions of this Part, the Act, or any previous permit
issued hereunder, unless the user first submits proof that it has obtained
financial assurance sufficient to restore or repair NBC damage caused by its
discharge.
1.10.9
Administrative Penalties
A.
Notwithstanding any other section of this Part, any user who is found to have
violated any provision of this Part, or a permit or order issued hereunder, may
be fined in an amount not to exceed twenty-five thousand dollars ($25,000.00)
per day per violation. Each day during which noncompliance occurs or continues
shall be deemed a separate and distinct violation.
1. Such assessments may be added to the
user's next scheduled sewer service charge.
2. Unpaid charges, fines, and penalties may
constitute a lien against the individual user's property.
3. Interest on the unpaid balance of charges,
fines, and penalties shall accrue at a rate established by the NBC and approved
by the Rhode Island Public Utilities Commission.
4. Users desiring to dispute fines assessed
by the NBC must file a written request for hearing within ten (10) days of
receipt of the order assessing the fine, in accordance with the hearing
procedure outlined herein.
5. The
NBC may impose escalating fines in instances of repeated violations.
6. The NBC shall calculate the fine in
accordance with §1.10.10 of this Part
herein.
7. Nothing in this section
shall limit the authority of the NBC to impose the maximum Administrative
Penalty for violation of any provision of Federal or State laws or Regulations,
this Part, or any permit or order issued pursuant
thereto.
1.10.10
Calculation of Administrative
Penalty
A. Penalties may be calculated
according to the following penalty matrix for violations of R.I. Gen. Laws
§
46-25-25 and all Rules and Regulations, permits and orders issued pursuant thereto. In
accordance with R.I. Gen. Laws § 46-2525.2, penalties are assessed for
each day of noncompliance.
|
TYPE OF VIOLATION |
|
Deviation from Standard |
I |
II |
III |
|
Major |
$25,000.00 to $10,000.00 |
$10,000.00 to $5,000.00 |
$5,000.00 to $1,000.00 |
|
Moderate |
$10,000.00 to $5,000.00 |
$5,000.00 to $1,000.00 |
$1,000.00 to $500.00 |
|
Minor |
$5,000.00 to
$1,000.00 |
$1,000.00 to $500.00 |
$500.00 to
$100.00 |
1. Type of
Violation. Refers to the nature of the legal requirement allegedly violated.
"Type" includes, but is not limited to, the following examples:
a. Type I
(1) Violations of legal requirements
identified by the NBC as directly related to the protection of the public
health, safety, welfare, or environment
(2) Violation of wastewater discharge
limits
(3) Violations of compliance
schedule milestones
(4) Failure to
provide reports (compliance schedules, selfmonitoring data, BMR &
FCMR)
(5) Failure to accurately
report noncompliance
(6) Failure to
obtain required permit from the NBC
(7) Failure to take remedial action to
mitigate a known harm
(8) Any other
violation or group of violations that the NBC considers to be significant
including a pattern of Type II and Type III violations
b. Type II
(1) Violation of legal requirements
indirectly related to public or environmental protection, e.g., late reports
(but with notification to the NBC that sampling has been performed)
(2) Failure to comply with an equipment or
design specification or any other operational methods or procedure required by
the NBC or specified in this Part, which is indirectly related to protection of
the public health and welfare and/or the environment, e.g. the discharge of
noncontact cooling water without approval
(3) A pattern of Type III
violations
c. Type III
Violation of legal requirements identified by the NBC as
important but incidental to the protection of the plant workers and
environment, e.g. late sampling.
2. Deviation from Standard. Refers to the
degree to which the violation is out of compliance with the requirement
allegedly violated. The NBC will evaluate the circumstances of each case to
assess whether a violation is a minor, moderate, or major deviation from the
standard with reference to the following factors:
a. The extent to which the act or failure to
act was out of compliance;
b.
Environmental conditions;
c. The
amount, toxicity, and/or nature of the pollutant;
d. The duration of the violation;
e. The areal extent of the
violation;
f. Whether the user took
reasonable and appropriate steps to prevent and/or mitigate the
non-compliance;
g. The user's
history of noncompliance;
h. The
degree of willfulness or negligence, including but not limited to, how much
control the violator had over the occurrence of the violation and whether the
violation was foreseeable;
i.
Willingness to participate in supplemental environmental projects that are
directly related to addressing compliance problems of the industry within which
the violation took place. Such projects are subject to the NBC's approval and
control;
j. The economic benefit
achieved by noncompliance;
k. Any
other factor(s) that may be relevant in determining the amount of a penalty,
provided that, said other factor(s) shall be set forth in the Notice of
Violation, Order, or other written notice of the Assessment of
Penalty.
1.10.11
Administrative Hearings
A. Right to Hearing
Any order or assessment of Administrative Penalty shall
inform the user that a written request for a hearing on the alleged violations,
order, and/or penalty must be filed within ten (10) days after service of the
notice to preserve the user's right to hearing. The notice will be deemed
properly served upon the user if a copy is served upon him or her personally,
or sent by registered or certified mail to his or her last known address, or if
he or she is served with notice by any other method of service now or hereafter
authorized in civil actions under the laws of the State. In an emergency
situation, if written request for a hearing is not made by the user within ten
(10) days of the service of notice, the user will be foreclosed from hearing
regarding any penalty assessed. In a non-emergency situation if written request
for a hearing is not made by the user within ten (10) days of the service of
notice, the user will be foreclosed from hearing regarding both the order and
any penalty assessed.
B.
Hearing Request and Conference Option
As stated immediately above, a written request for hearing
must be filed within ten (10) days from service to preserve the user's rights.
At that time, the user may also request a conference with the NBC prior to the
scheduling of an administrative hearing. Said conference will include
appropriate members of the NBC from the pretreatment and enforcement staffs.
Violations and penalties will be explained and discussed. Electing this option
does not foreclose and/or affect the user's right to hearing provided that the
written request for hearing was filed within ten (10) days of service as noted
above. The purpose of this option is to provide the user with an informal forum
within which to discuss the alleged violations and to expedite conclusion
and/or resolution of outstanding enforcement actions. If resolution is not
reached within ninety (90) days from the date of the scheduled conference, the
NBC shall schedule the matter for formal hearing. In any event, either party
may request a formal hearing at any point during the conference
proceedings.
C. Scheduling
of Hearing/Appointment of Hearing Officers
If a user wishes to proceed directly to hearing, without
exercising the conference option, the Executive Director shall appoint a
hearing officer within ten (10) days of the receipt of said hearing request. If
the user requests a conference prior to hearing, the appointment of a hearing
officer shall be postponed until further request by NBC staff and/or the user.
The hearing officer shall set the procedures and schedules for the
hearing.
D. Designation of
Hearing Officers
1. Notwithstanding any other
provisions of the NBC bylaws or any other Rule and Regulation of the NBC, and
in accordance with the criteria promulgated by the NBC, the Board of
Commissioners shall designate certain persons to act as hearing officers in
cases arising under this Part.
2.
With the adoption of this Part, the Executive Director is empowered to appoint
persons who are duly designated by the Board of Commissioners and who are not
involved in the enforcement action to act as hearing officers. A person
designated as a hearing officer shall be a person who meets specific
qualifications adopted by the Board of Commissioners.
3. The hearing officer shall:
a. Have the right to issue subpoenas in the
name of the NBC, to compel the appearance of witnesses and the production of
any books, records, or other documentation
b. Take evidence
c. Transmit in a timely manner a report of
the evidence and hearing, including transcripts and other evidence, together
with findings of fact and conclusions of law and recommendations of action to
the Executive Director. The hearing officer may also issue findings as to the
number of days during which the violation occurred and appropriate penalties.
In establishing any penalty, the hearing officer and the Executive Director
shall take into account the factors used to determine the severity of a
violation outlined in §1.10.10 of this
Part.
E. Other
Hearings
All other provisions for public hearings not specifically
described herein shall be in accordance with R.I. Gen. Laws §
42-35-9.
F. Orders by the Executive
Director
After the Executive Director has reviewed the
Administrative Decision of the hearing officer, he or she may issue an order to
the violator to cease and desist committing such violations, assess fines, to
remedy such violations, to revoke the violator's discharge permit, and to
recover statutory enforcement costs. Such enforcement costs include, but are
not limited to, the costs of implementing any action, as well as any
administrative costs incurred therein, such as the reasonable expenses of the
hearing officer, stenographer, staff, expert witnesses and reasonable
attorney's fees. The decision may include a finding as to the number of days
during which the violation occurred. Every day in which the violation occurred
shall be deemed a separate offense. The Superior Court shall have jurisdiction
to enforce such order and the Executive Director may institute civil or
criminal proceedings in the name of the NBC.
1.10.12
Equal Access to Justice
Application
Within thirty (30) days of the conclusion of any
administrative hearing or within thirty (30) days of the informal disposition
or termination of any hearing by the NBC, the prevailing party may apply to the
hearing officer for the award of reasonable litigation expenses incurred by
that party in connection with the proceeding, in accordance with the provisions
of R.I. Gen. Laws §
42-92-1
et seq. The hearing officer shall not award fees or expenses
to the prevailing party if he or she finds that the NBC was substantially
justified in the actions leading to the hearing and in the hearing itself. The
hearing officer may, at his or her discretion, deny fees or expenses if special
circumstances make an award unjust. The decision of the hearing officer shall
be made part of the record and shall include written findings and conclusions.
The Executive Director may not review the award. Any party dissatisfied with
the fee determination by the hearing officer may appeal to the Superior Court.
The terms "substantial justification" and "prevailing party" shall be defined
in R.I. Gen. Laws §
42-92-1
et seq.
1.10.13
Petitions for Declaratory
Rulings
A. Any person affected by any
statutory provision administered by the NBC or affected by any rule or order of
the NBC may, in accordance with R.I. Gen. Laws §
42-35-8 and
this Part, petition the Executive Director for a declaratory ruling as to the
applicability of such statute, Rule, or order. The petition shall clearly and
concisely identify:
1. The precise statute,
rule, or order under which a declaratory ruling is sought;
2. How the petitioner is affected by the
statute, Rule, or order;
3. The
petitioner's position on how the applicable statute, Rule, or order should be
interpreted, including citations to any applicable documents or law that
support the petitioner's position.
1.10.14
Judicial Remedies
A. If any person discharges sewage,
industrial wastes, or other wastes into the wastewater disposal system contrary
to the provisions of this Part, the Act, a permit or order issued by the NBC,
or any other pretreatment requirements, the NBC may commence an action for
appropriate legal and/or equitable relief in the Superior Court.
1. Injunctive Relief
Whenever a user has violated or continues to violate the
provisions of this Part, the Act, a permit or order issued by the NBC, or any
other pretreatment requirements, the NBC may petition the Court for the
issuance of a preliminary injunction, permanent injunction, or both (as may be
appropriate) which restrains or compels the activities on the part of the
user.
2. Civil Penalties
a. Any user who has violated or continues to
violate the Rules and Regulations, the Act, a permit or order issued by the
NBC, or any other pretreatment requirements shall be liable to the NBC for a
civil penalty of not more than twenty-five thousand dollars ($25,000.00) per
violation per day for each day during which the violation occurs plus actual
damages incurred by the NBC for as long as the violation occurs. In addition to
the above described penalty and damages, the NBC may recover reasonable
attorney's fees, court costs, and other expenses associated with the
enforcement activities, including sampling, monitoring and analysis
expenses.
b. The NBC shall petition
the Court to impose, assess, and recover such sums. In determining the amount
of liability, the Court shall take into account all relevant circumstances,
including, but not limited to, the extent of harm caused by the violation, the
magnitude and duration, any economic benefit gained through the user's
violation, corrective actions by the user, the compliance history of the user,
and any other factor as justice requires.
3. Criminal Prosecution
Any user who willfully or negligently violates any
provision of this Part, the Act, a permit or order issued by the NBC, or any
other pretreatment requirements shall upon conviction, be guilty of a
misdemeanor, punishable by a fine not to exceed twenty-five thousand dollars
($25,000.00) per violation per day or imprisonment for not more than one (1)
year.
1.10.15
Costs
A. In addition to such administrative, civil,
or criminal fines as may be imposed, any user who violates any provision of
this Part or any condition of a permit, or plan approval related thereto, shall
be financially responsible and liable to the NBC, in addition to normal service
charges and surcharges for industrial investigation and monitoring of
compliance with this Part, including, but not limited to, the following:
1. Cost of mileage, labor, and materials
incurred in detecting and correcting the violation;
2. Laboratory analysis costs associated with
detecting and correcting the violation;
3. Additional treatment costs caused by the
violation or associated with detecting and correcting the violation;
4. Costs of any additional equipment acquired
or expended by the NBC for detecting or correcting the violation.
5. Repair and/or replacement of any part of
the facility damaged by the violation;
6. Any liability, damages, fines, or
penalties incurred by the NBC as a result of the violation;
7. Costs incurred in enforcing compliance,
including prosecution and/or settlement of outstanding violations;
8. Other costs as are associated with the
prosecution, negotiation and/or settlement of a
violation.
1.10.16
Annual Publication of Users in
Significant Noncompliance
The NBC shall publish annually in the largest daily
newspaper circulated in the service area, a description of those users who are
found to be in significant noncompliance, as defined in §
1.2 of this Part, with any
provisions during the period since the previous publication. Users found to be
in significant noncompliance must reimburse the NBC for their pro
rata share of the cost of the public notice.
1.10.17
Denial of Access
If the NBC or its duly authorized employees and agents,
upon presenting identification and appropriate credentials, are denied access
to carry out inspection, surveillance, and/or monitoring procedures as
described under R.I. Gen. Laws §
46-25-25.1, the
Executive Director may immediately institute civil proceedings, including
proceedings for necessary injunctive relief, or criminal proceedings in
Superior Court.
1.10.18
Inspection of Connections
If any person shall construct, install, alter, or repair
any sewer or connect to any sewer in violation of the requirements of this
Part, the NBC may, in its discretion, order or direct such person to uncover
and fully expose any or all portions of such sewer or connection and allow the
NBC and its representatives adequate opportunity for examination and inspection
of the work. If the connection and appurtenances thereto shall be found not to
be in full accord with the requirements of this Part and the standards
established under its provisions, then the NBC may serve the offender with a
written notice as provided in §
1.10 of this Part.
1.10.19
Affirmative Defenses
to Discharge Violations
A. Upset
Provisions
1. For the purposes of this
section, "Upset" means an exceptional incident in which there is unintentional
and temporary noncompliance with pretreatment standards because of factors
beyond the reasonable control of the user. An Upset does not include
noncompliance to the extent caused by operational error, improperly designed
treatment facilities, inadequate treatment facilities, lack of preventive
maintenance, or careless or improper operation.
2. An Upset shall constitute an affirmative
defense to an action brought for noncompliance with pretreatment standards if
the requirements of §1.10.19(A)(3)
of this Part are met.
3. A user who
wishes to establish the affirmative defense of Upset shall demonstrate, through
properly signed, contemporaneous operating logs, or other relevant evidence
that:
a. An Upset occurred and the user can
identify the cause(s) of the Upset;
b. The facility was at the time being
operated in a prudent and workman-like manner and in compliance with applicable
operation and maintenance procedures;
c. The user has submitted the following
information to the NBC within twenty-four (24) hours of becoming aware of the
Upset (if this information is provided orally, a written submission must be
provided within five (5) days);
(1) A
description of the discharge and cause of noncompliance;
(2) The period of noncompliance, including
exact dates and times or, if not corrected, the anticipated time the
noncompliance is expected to continue;
(3) Steps being taken and/or planned to
reduce, eliminate, and prevent recurrence of the noncompliance.
d. In any enforcement proceeding
the user seeking to establish the occurrence of an Upset shall have the burden
of proof; and
e. The user shall
control production of all discharges to the extent necessary to maintain
compliance with pretreatment standards upon reduction, loss, or failure of its
treatment facility until the facility is restored or an alternative method of
treatment is provided. This requirement applies in the situation where, among
other things, the primary source of power of the treatment facility is reduced,
lost, or fails.
B. Bypass
1. "Bypass" means the intentional diversion
of waste streams from any portion of the user's treatment facility.
2. "Severe property damage" means substantial
physical damage to property, damage to the treatment facilities that causes
them to become inoperable, or substantial and permanent loss of natural
resources that can reasonably be expected to occur in the absence of a Bypass.
Severe property damage does not mean economic loss caused by delays in
production.
3. A user may allow
Bypass to occur where it does not violate pretreatment standards or
requirements, and only if it is necessary to assure efficient maintenance
and/or operation. These bypasses are not subject to §§1.10.19(B)(4), (5) and
(6) of this Part.
4. If a user knows in advance of the need for
a Bypass, it shall submit prior notice to the NBC, if possible, at least ten
(10) days before the date of the Bypass.
5. A user shall orally notify the NBC of an
unanticipated Bypass that exceeds applicable pretreatment standards or
requirements within twenty-four (24) hours of becoming aware of the Bypass. A
written submission shall also be provided within five (5) days of becoming
aware of the Bypass, including exact times and dates, and if the Bypass has not
been corrected, the anticipated time it is expected to continue; and steps
taken or planned to reduce, eliminate, and prevent recurrence of the
Bypass.
6. Bypass is prohibited,
and the NBC may take enforcement action against an individual user for a
Bypass, unless:
a. Bypass was unavoidable to
prevent loss of life, personal injury, or severe property damage;
b. There are no feasible alternatives to
Bypass, such as use of auxiliary treatment facilities, retention of wastes, or
maintenance during normal periods of downtime. This condition is not satisfied
if adequate back-up equipment should have been installed to prevent Bypass,
which occurred during normal periods of equipment downtime or preventative
maintenance; and
c. The user
submitted notices as required by §1.10.19(B)
of this Part.
7. The NBC
may approve an anticipated Bypass, after considering its adverse effects, if
the NBC determines that it will meet the three (3) conditions listed in §1.10.19(B)(6)
of this Part.
