Escalon Municipal Code Art. VI Enforcement

A. The director is authorized to enforce the provisions of this chapter and to exercise any enforcement powers authorized or provided in this chapter, including without limitation the imposition of administrative requirements, orders and penalties pursuant to this chapter, as may be necessary to effectively implement and enforce this chapter.

B. Response Plans. The director may, together with the city attorney, develop and implement an enforcement response plan setting forth enforcement procedures and actions to address repeat and continuing violations of this chapter, a spill response plan setting forth the procedures, roles and responsibilities for investigating, cleaning up and reporting spills, and an illicit discharge response plan setting forth the procedures and responsibilities for investigating and abating illegal discharges.

(Ord. 542, 2014)

Without limitation on the enforcement authority set forth elsewhere in this chapter, the director is authorized to exercise any and all of the following administrative remedies to enforce the provisions of this chapter, in addition to those remedies set forth in Chapter 1.08 EMC:

A. Notice of Violation ("NOV"). Whenever the director finds that a person has violated or otherwise failed to meet a requirement of this chapter, the director may order a person to comply with this chapter by either personally serving that person with a written notice or by sending written notice to that person by certified mail. Such notice may require without limitation:

1. The performance of monitoring, analyses and reporting;

2. The elimination of illicit connections or discharges;

3. That violating discharges, practices or operations shall cease and desist;

4. The abatement or remediation of stormwater pollution or contamination hazards and the restoration of any affected property;

5. Payment of a fine to cover administrative and remediation costs; and/or

6. The implementation of source control or treatment BMPs.

If abatement of a violation and/or restoration of affected property is required, the notice shall set forth a deadline by which such remediation or restoration shall be completed. Within 30 days of the receipt of a NOV, or shorter period as may be prescribed in the NOV, the person to whom the NOV has been issued shall provide the director a written explanation or denial of the violation and, if the person does not deny the violation, a plan for the satisfactory correction and prevention thereof, which shall include without limitation specific actions or mitigations required by the director within the timeframe established in the NOV. Submission of this plan shall in no way relieve the person of liability for any violation before or after receipt of the NOV. Said notice shall further advise that, if the violator fails to complete the remediation or restoration described in the written notice provided for under subsection A of this section within the time provided for therein, the city or a contractor designated by the director shall complete the work specified in the notice, and the city shall charge all expenses related to the city or contractor's performance of said work to the responsible person as provided for under EMC § 13.15.230.

B. Cease and Desist Orders. The director may require any person owning or occupying a premises to cease and desist all activities that cause or contribute or threaten to cause or contribute to discharge in violation of this chapter. This order may also require such person to: (1) comply with the applicable provisions of this chapter within a designated period of time; or (2) take such other appropriate remedial or preventative action the director determines to be necessary to prevent the violation from recurring.

C. Notice to Clean and Abate. The director may require any person owning or occupying a premises to clean up and abate any release of one or more pollutants on those premises, which otherwise would result in a violation of this chapter. The director may also order abatement of activities or practices, which otherwise reasonably would result in such a violation.

D. City's Performance of Work. The director may enter property to perform abatement activities or conduct cleanup work in the event abatement or cleanup activities ordered pursuant to this chapter are not conducted by the established deadline. In the event a violation of this chapter constitutes an imminent danger to public safety or the environment, the director may enter the property from which the violation emanates, conduct abatement activities and restore any property affected by the violation. To the extent reasonably practicable, notice shall be provided to the owner or occupant prior to abatement. If necessary to protect the public safety or the environment, abatement may proceed without prior notice to or consent from the owner or occupant thereof and without judicial warrant.

E. Recovery of Costs. The director may deliver to the owner or occupant of any property, any permittee or any other person who becomes subject to a NOV or other administrative order or to abatement or cleanup activities by the city, an invoice for costs documenting any and all costs incurred by the city in cleaning up a site and issuing the notice of violation or other administrative order and directing payment to the city.

F. Final Order. Unless timely appealed in accordance with EMC § 13.15.180, an administrative order shall be effective and final as of the date it is issued by the director.

(Ord. 542, 2014)

A. Nuisance. Any violation of the prohibitions of this chapter, including, but not limited to, the maintenance or use of any illicit connection or the occurrence of any illegal discharge, shall constitute a threat to the public health, safety and welfare, and is declared and deemed a nuisance pursuant to Government Code Section 38771. Any such nuisance may be abated and/or restored by the director pursuant to Chapter 8.20 EMC.

1. City Abatement. In the event the owner of property, the operator of a facility, a permittee or any other person fails to comply with any provision of an administrative order issued to such owner, operator, permittee or person pursuant to this chapter, the director may request the city attorney to obtain an abatement warrant or other appropriate judicial authorization to enter the property, abate the condition and restore the area. Any costs incurred by the city in obtaining and carrying out an abatement warrant or other judicial authorization may be recovered pursuant to subsection (A)(3) of this section.

a. Court Order to Enjoin or Abate. At the request of the director, the city attorney may seek a court order to enjoin and/or abate the nuisance.

b. Notice to Owner and Occupant. Prior to seeking any court order to enjoin or abate a nuisance or threatened nuisance, the director shall provide notice of the proposed injunction or abatement to the owner and occupant, if any, of the property where the nuisance or threatened nuisance is occurring in accordance with EMC § 8.20.090.

2. Emergency Abatement. The city or director may order the abatement of any discharge from any source to the MS4 when, in the opinion of the director, the discharge causes or threatens to cause a condition which presents an imminent danger to the public health, safety, or welfare, or the environment. In emergency situations where the property owner or other responsible party is unavailable and time constraints are such that service of a notice and order to abate cannot be effected without presenting an immediate danger to the public health, safety, or welfare, or the environment or a violation of a NPDES permit, the city may perform or cause to be performed such work as shall be necessary to abate said threat or danger. The costs of any such abatement shall be borne by the owner and shall be collectable in accordance with the provisions of this chapter. If necessary to protect the public safety or the environment, abatement may proceed without prior notice to or consent from the owner or occupant thereof and without judicial warrant.

3. Reimbursement of Costs. All costs incurred by the city in responding to any nuisance, all administrative expenses and all other expenses recoverable under state law, shall be recoverable from the person(s) creating, causing, committing, permitting or maintaining the nuisance in accordance with EMC § 13.15.230.

4. Nuisance Lien. All costs owed pursuant to this section may constitute a lien against the property from which the nuisance emanated and a personal obligation against the owner thereof in accordance with Government Code Sections 38773.1 and 38773.5. The owner of record of the property subject to any lien shall be given notice of the lien prior to recording as required by Government Code Section 38773.1. At the direction of the director, the city attorney is authorized to collect nuisance abatement costs or enforce a nuisance lien in an action brought for a money judgment or by delivery to the county assessor of a special assessment against the property in accord with the conditions and requirements of Government Code Section 38773.5.

B. Restraining Order and Injunction. At the request of the director, the city attorney may cause the filing in a court of competent jurisdiction, of a civil action seeking a restraining order or an injunction against any threatened or continuing noncompliance with the provisions of this chapter.

C. Order for Reimbursement. Any temporary, preliminary or permanent injunction issued pursuant hereto may include an order for reimbursement to the city of all costs incurred in enforcing this chapter, including costs of inspection, investigation and monitoring, the costs of abatement undertaken at the expense of the city, costs relating to restoration of the environment and all other expenses as authorized by law.

D. Damages. The director may cause the city attorney to file an action for civil damages in a court of competent jurisdiction seeking recovery of: (1) all costs incurred in enforcement of this chapter, including, but not limited to, costs relating to investigation, sampling, monitoring, inspection, administrative expenses, all other expenses as authorized by law, and consequential damages, (2) all costs incurred in mitigating harm to the environment or reducing the threat to human health, (3) damages for irreparable harm to the environment; (4) the reasonable costs of preparing and bringing legal action under this subsection; and (5) attorneys' fees.

E. Damages from Trespass or Nuisance on Public Land. The city attorney is authorized to file actions for civil damages resulting from any trespass or nuisance occurring on public land or to the MS4 from any violation of this chapter where the same has caused damage, contamination or harm to the environment, public property or the MS4.

(Ord. 542, 2014)

Any person subject to an administrative enforcement action, who is required to perform monitoring, analyses, reporting and/or corrective activities by the director, or who is otherwise aggrieved by any decision of the director, may appeal the decision to the city manager. Such appeal shall be in writing, shall fully state all legal and factual bases for the appeal, and shall be filed with the city manager within 10 days following the receipt of the written enforcement action or decision was served on the person. Hearing on the appeal before the city manager or his or her designee shall take place within 15 days from the date of city's receipt of the notice of appeal. The decision of the city manager or designee shall be in writing, shall set forth the city manager's findings, and shall be final. Any appeal that does not satisfy all of the requirements of this chapter shall be invalid, and shall not be heard or considered by the city manager, in which case the director's decision shall be final.

(Ord. 542, 2014)

A. Any violation of this chapter may be punishable as a misdemeanor.

B. Infractions. Any person who may otherwise be charged with a misdemeanor under this chapter may be charged, at the discretion of the city attorney, with an infraction punishable by a fine of not more than $100.00 for a first violation, $200.00 for a second violation within a 12-month period, and a fine not exceeding $500.00 for each additional violation occurring within a 12-month period.

C. Misdemeanors. Notwithstanding any other provision of this code, any person who negligently or knowingly violates any provision of this chapter, undertakes to conceal any violation of this chapter, continues any violation of this chapter after notice thereof, or violates the terms, conditions and requirements of any permit issued pursuant to this chapter shall be guilty of a misdemeanor punishable by a fine of not more than $1,000 or by imprisonment for a period of not more than six months, or both.

(Ord. 542, 2014)

A. By securing a permit from the city for development, encroachment, or the construction of a work improvement the permittee shall be strictly liable, in any criminal proceeding, for allowing or failing to prevent a violation of this chapter by the permittee, its employees, subcontractors or material men.

B. In any prosecution for a violation of this chapter against a permittee based on the act or omissions of an employee, subcontractor, or material men it shall only be required that it be shown that the permittee was issued a development, encroachment, or construction permit and that a violation of this chapter occurred at the site for which a permit was issued.

(Ord. 542, 2014)

In lieu of enforcement proceedings, penalties and remedies authorized by this chapter, the director may provide a violator with alternative compensatory actions, such as storm drain stenciling, attendance at compliance workshops, creek cleanup, etc.

(Ord. 542, 2014)

Remedies provided under this chapter are in addition to and do not supersede or limit any and all other remedies, civil or criminal. The remedies provided for herein shall be cumulative and not exclusive.

(Ord. 542, 2014)

A. The city shall be entitled to reimbursement from any person violating any requirement or provision of this chapter for all costs and expenses incurred in connection with the enforcement of this chapter. Such reimbursable costs and expenses shall include, but are not limited to, costs of investigation, administrative overhead, out-of-pocket expenses, costs of administrative hearings, costs of suit, salaries, attorney fees, expert fees, testing and monitoring expenses, and other expenses recoverable under state law, incurred during any inspection or investigation conducted pursuant to this chapter.

B. The director shall keep an itemized statement of costs and expenses incurred by the city in enforcing the provisions of this chapter, the costs and expenses incurred by the city in causing the owner or responsible person to abate the violation of any provision of this chapter and the civil penalties imposed pursuant to this section. The costs and expenses, including, but not limited to, the incidental expenses of enforcing this chapter or causing the owner or responsible person to abate the violation of this chapter, and the civil penalties, shall be billed to the owner or responsible person and shall become due and payable 30 days thereafter. The term "incidental expenses" shall include, but not be limited to, personnel costs, both direct and indirect, for administration and enforcement including, but not limited to, attorneys' fees; costs incurred in inspecting the property; costs incurred in documenting the violation; the expenses and costs of the city in preparation of notices, specifications and contracts and in inspecting the subject premises or property; and the cost of preparing, printing and mailing the notices and documents hereunder. The director shall provide a copy of this statement of costs, expenses and civil penalties to the owner of the subject premises or property and to any responsible person(s). The owner of the subject premises or property, as well as any responsible person(s) shall be liable and responsible for, and required to pay, all such costs, expenses and civil penalties.

C. The owner and/or responsible person(s) may request an administrative hearing before the city council to appeal the statement of costs, expenses and civil penalties. The request for a hearing shall be filed with the city clerk in writing within 10 days of receipt of the statement, and shall fully state all factual and legal bases for the appeal. Any appeal that does not fully satisfy all of the requirements of this section shall be invalid and shall not be heard by the city council, in which case the statement of costs, expenses and civil penalties shall be final.

D. For any appeal satisfying the requirements of this section, the city council shall review the statement of costs, expenses and civil penalties and any evidence presented by the owner or responsible person(s), as well as the director, and shall affirm, overrule or modify the decision of the director in imposing the costs, expenses and/or civil penalties. The city council shall consider in making its decision: (1) the nature, circumstances, extent and gravity of the violation; (2) the extent to which the violation was willful and/or intentional; and (3) whether or to what extent the violation has continued or recurred. The city council's decision shall be in writing, shall state the city council's findings, and shall be mailed to the owner and all responsible persons. The decision of the city council shall be final.

E. If the property owner does not pay the costs, expenses and civil penalties in full within 30 days after receipt of the statement of costs pursuant to subsection B of this section or, if requested, after any decision on appeal by the city council pursuant to subsection C of this section which confirms in whole or in part the costs, expenses and civil penalties, the costs, expenses and civil penalties shall become a special assessment against the real property upon which the violation(s) of this chapter occurred. The assessment shall continue until it is paid, together with the maximum allowable interest rate, not exceeding 12 percent a year computed from the date of confirmation of the statement until payment. The assessment shall be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same procedure and sale in case of delinquency as provided for ordinary municipal taxes. All acts applicable to levy, collection and enforcement of municipal taxes apply to this special assessment.

F. The city shall file in the office of the county recorder a certificate substantially in the following form:

G. Any monies recovered under this section shall be used exclusively for costs and programs associated with monitoring and establishing stormwater discharge pollution control systems, implementing or enforcing the provisions of this chapter and/or creating educational and/or remedial programs relating to stormwater discharge pollution.

(Ord. 542, 2014)

Any person who violates any provision of this chapter or any provision of any requirement issued pursuant to this chapter, may also be in violation of the Clean Water Act and/or the Porter-Cologne Act and may be subject to the sanctions of those acts, including civil and criminal penalties. Any enforcement action authorized under this chapter shall also include written notice to the violator of such potential liability.

(Ord. 542, 2014)