835 R.I. Code R. 835-RICR-20-00-1.10

Current through December 3, 2024

Section 835-RICR-20-00-1.10 - Enforcement

1.10.1Administrative 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.

1.10.2Notice 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.

1.10.3Administrative 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.

1.10.4Consent 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.

1.10.5Suspension 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.

1.10.6Emergency 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.

1.10.7Termination 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.

1.10.8Security 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.

1.10.9Administrative 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.

1.10.10Calculation 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.

1.10.11Administrative 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.

1.10.12Equal 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 § 42-92-1et 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 § 42-92-1et seq.

1.10.13Petitions 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.

1.10.14Judicial 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.

1.10.15Costs

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.

1.10.16Annual 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.

1.10.17Denial 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.

1.10.18Inspection 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.

1.10.19Affirmative 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.

835 R.I. Code R. 835-RICR-20-00-1.10

Amended effective 6/10/2019
Amended effective 6/1/2021