Fullerton Municipal Code Ch. 12.18 Water Quality Ordinance

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

APPEALS BOARD. The Planning Commission of the City of Fullerton, reconvened as the Appeals Board.

AUTHORIZED INSPECTOR. The City Manager and persons designated by and under his or her instruction and supervision, who are assigned to investigate compliance with, detect violations of and/or take actions pursuant to this chapter.

CITY. The City of Fullerton, Orange County, California.

CO-PERMITTEE. The County of Orange, the County Flood Control District and/or any one of the 31 municipalities, including the city, which are responsible for compliance with the terms of the NPDES permits.

DAMP. The County Drainage Area Management Plan, as the same may be amended from time-to-time.

DISCHARGE. Any release, spill, leak, pump, flow, escape, leaching (including subsurface migration or deposition to groundwater), dumping or disposal of any liquid, semi-solid or solid substance.

DISCHARGE EXCEPTION. The group of activities not restricted or prohibited by this chapter, including only:

(1) Discharges composed entirely of stormwater; discharges subject to regulation under current EPA or Regional Water Quality Control Board issued NPDES permits, state general permits or other waivers, permits or approvals granted by an appropriate government agency; discharges from property for which best management practices set forth in the development project guidance are being implemented and followed;

(2) Discharges to the stormwater drainage system from potable water line flushing, firefighting activities, landscape irrigation systems, diverted stream flows, rising groundwater and de minimis groundwater infiltration to the stormwater drainage system (from leaks in joints or connections or cracks in water drainage pipes or conveyance systems);

(3) Discharges from potable water sources, passive foundation drains, air conditioning condensation and other building roof runoff, agricultural irrigation water runoff, water from crawl space pumps, passive footing drains, lawn watering, non-commercial vehicle washing, flows from riparian habitats and wetlands, dechlorinated swimming pool discharges;

(4) Discharges of reclaimed water generated by a lawfully permitted water treatment facility, street wash waters when related to cleaning and maintenance by, or on behalf of, the city; discharges authorized pursuant to a permit issued under § 12.18.040;

(5) Discharges allowable under domestic sewage exception; discharges for which the discharger has reduced to the extent feasible the amount of pollutants in such discharge; and

(6) Discharges authorized pursuant to federal or state laws or regulations.

DOMESTIC SEWAGE EXCEPTION. Discharges which are exceptions to this chapter and excluded from the definition of prohibited discharge, as defined herein, including only:

(1) Discharges composed entirely of accidental spills of untreated sanitary wastes (commonly called domestic sewage) and other wastes, but limited solely to wastes that are controlled by and are within publicly owned wastewater treatment system collection facilities immediately prior to the accidental spill; and

(2) In any action taken to enforce this chapter, the burden shall be on the person who is the subject of such action to establish that a discharge was within the scope of this discharge exception.

ENFORCING ATTORNEY. The City Attorney or District Attorney acting as counsel to the city, which counsel is authorized to take enforcement action as described herein. For purposes of criminal prosecution, the City Attorney or District Attorney, shall act as the ENFORCING ATTORNEY.

EPA. The Environmental Protection Agency of the United States.

HEARING OFFICER. The City Manager or his or her designee, who shall preside at the administrative hearings authorized by this chapter.

INVOICE FOR COSTS. The actual costs and expenses of the city, including, but not limited to, administrative overhead, salaries and other expenses recoverable under state law, incurred during any inspection conducted pursuant to § 12.18.050 of this chapter or where a notice of noncompliance, or other enforcement option under § 12.18.060 of this chapter is utilized to obtain compliance with this chapter.

ILLICIT CONNECTION. Any human-made conveyance or drainage system, pipeline, conduit, inlet or outlet through which the discharge of any pollutant to the stormwater drainage system occurs or may occur. The term ILLICIT CONNECTION shall not include legal nonconforming connections or connections to the stormwater drainage system that are hereinafter authorized by the agency with jurisdiction over the system at the location at which the connection is made.

LEGAL NONCONFORMING CONNECTION. Connections to the stormwater drainage system existing as of the adoption of this chapter that were in compliance with all federal, state and local rules, regulations, statutes and administrative requirements in effect at the time the connection was established, including, but not limited to, any discharge permitted pursuant to the terms and conditions of an individual discharge permit issued pursuant to the Industrial Waste Ordinance, County Ordinance No. 703.

NEW DEVELOPMENT. All public and private residential (whether single-family, multi-unit or planned unit development), industrial, commercial, retail and other nonresidential construction projects, or grading for future construction for which either a discretionary land use approval, grading permit, building permit or nonresidential plumbing permit is required.

NONRESIDENTIAL PLUMBING PERMIT. A plumbing permit authorizing the construction and/or installation of facilities for the conveyance of liquids other than stormwater, potable water, reclaimed water or domestic sewage.

NPDES PERMIT. The currently applicable municipal discharge permit issued by the Regional Water Quality Control Board, Santa Ana Region, which permit establishes waste discharge requirements applicable to stormwater runoff in the city.

PERSON. Any natural person as well as any corporation, partnership, government entity or subdivision, trust, estate, cooperative association, joint venture, business entity or other similar entity or the agent, employee or representative of any of the above.

PLANNING AGENCY. The Planning Commission, Minor Site Plan Review Committee, Community and Economic Development Department or Public Works Department.

POLLUTANT. Any liquid, solid or semi-solid substances, or combination thereof, including, but not limited to:

(1) Artificial materials (such as floatable plastics, wood products or metal shavings);

(2) Household waste (such as trash, paper and plastics, cleaning chemicals, yard wastes, animal fecal materials, used oil and fluids from vehicles, lawn mowers and other common household equipment);

(3) Metals and non-metals, including compounds of metals and non-metals (such as cadmium, lead, zinc, copper, silver, nickel, chromium, cyanide, phosphorus and arsenic), with characteristics which cause an adverse effect on living organisms;

(4) Petroleum and related hydrocarbons (such as fuels, lubricants, surfactants, waste oils, solvents, coolants and grease);

(5) Animal wastes (such as discharge from confinement facilities, kennels, pens and recreational facilities, including stables, show facilities or polo fields);

(6) Substances having a pH less than 6.5 or greater than 8.6 or unusual coloration, turbidity or odor;

(7) Waste materials and wastewater generated on construction sites and by construction activities (such as painting and staining, use of sealants and glues, use of lime, use of wood preservatives and solvents, disturbance of asbestos fibers, paint flakes or stucco fragments, application of oils, lubricants, hydraulic, radiator or battery fluids, construction equipment washing, concrete pouring and cleanup, use of concrete detergents, steam cleaning or sand blasting, use of chemical degreasing or diluting agents and use of super chlorinated water for potable water line flushing);

(8) Materials causing an increase in biochemical oxygen demand, chemical oxygen demand or total organic carbon;

(9) Materials which contain base/neutral or acid extractible organic compounds;

(10) The pollutants defined in § 1362(6) of the Federal Clean Water Act, 33 U.S.C. § 1362(6); and

(11) Any other constituent or material, including, but not limited to, pesticides, herbicides, fertilizers, fecal coliform, fecal streptococcus or enterococcus or eroded soils, sediment and particulate materials, in quantities that will interfere with or adversely affect the beneficial uses of the receiving waters, flora or fauna of the state.

PROHIBITED DISCHARGE. Any discharge which contains any pollutant, from public or private property to:

(1) The stormwater drainage system;

(2) Any upstream flow, which is tributary to the stormwater drainage system;

(3) Any groundwater, river, stream, creek, wash or dry weather arroyo, wetlands area, marsh, coastal slough; or

(4) Any coastal harbor, bay or the Pacific Ocean. The term PROHIBITED DISCHARGE shall not include discharges allowable under the discharge exception.

SIGNIFICANT REDEVELOPMENT. The rehabilitation or reconstruction of public or private residential (whether single-family, multi-unit or planned unit development), industrial, commercial, retail or other nonresidential structures, for which either a discretionary land use approval, grading permit, building permit or nonresidential plumbing permit is required.

STATE GENERAL PERMIT. The state general industrial stormwater permit, the state general construction permit or any state general permit that has been or will be adopted and the terms and requirements of any such permit. In the event the EPA revokes the in-lieu permitting authority of the State Water Resources Control Board, then the term STATE GENERAL PERMIT shall also refer to any EPA-administered stormwater control program for industrial and construction activities.

STORMWATER DRAINAGE SYSTEM. Street gutter, channel, storm drain, constructed drain, lined diversion structure, wash area, inlet, outlet or other facility which is a part of or tributary to the county-wide stormwater runoff system and owned, operated, maintained or controlled by the county, the County Flood Control District or any co-permittee city, and used for the purpose of collecting, storing, transporting or disposing of stormwater.

(Ord. 3121, passed - -2008)

(A) No person shall:

(1) Construct, maintain, operate and/or utilize any illicit connection;

(2) Cause, allow or facilitate any prohibited discharge;

(3) Act, cause, permit or suffer any agent, employee or independent contractor to construct, maintain, operate and/or utilize any illicit connection or cause, allow or facilitate any prohibited discharge.

(B) (1) The prohibition against illicit connections shall apply irrespective of whether the illicit connection was established prior to the date of enactment of this chapter; however, legal nonconforming connections shall not become illicit connections until the earlier of one of the following:

(a) For all structural improvements to property installed for the purpose of discharge to the stormwater conveyance system, the expiration of five years from the adoption of this chapter;

(b) For all nonstructural improvements to property existing for the purpose of discharge to the stormwater conveyance system, the expiration of six months following delivery of a notice to the owner or occupant of the property which states a legal nonconforming connection has been identified. The notice of a legal nonconforming connection shall state the date of expiration of use under this chapter.

(2) A reasonable extension of use may be authorized by the City Manager or his or her designee upon consideration of the following factors:

(a) The potential adverse effects of the continued use of the connection upon the beneficial uses of receiving waters;

(b) The economic investment of the discharger in the legal nonconforming connection; and

(c) The financial effect upon the discharger of a termination of the legal nonconforming connection.

(C) A civil or administrative violation of division (A) above shall occur irrespective of the negligence or intent of the violator to construct, maintain, operate or utilize an illicit connection or to cause, allow or facilitate any prohibited discharge.

(D) If an authorized inspector reasonably determines that a discharge, which is otherwise within the discharge exception, may adversely affect the beneficial uses of receiving waters, then the authorized inspector may give written notice to the owner of the property or facility that the discharge exception shall not apply to the subject discharge following expiration of the 30-day period commencing upon delivery of the notice. Upon expiration of the 30-day period any such discharge shall constitute a violation of division (A) above.

(E) The owner or occupant of property on which a legal nonconforming connection exists may request an administrative hearing, pursuant to the procedures set forth in § 12.18.080 for an extension of the period allowed for continued use of the connection.

(Ord. 3121, passed - -2008)

(A) New development and significant re- development.

(1) All new development and significant redevelopment within the city shall be undertaken in accordance with:

(a) The DAMP; and

(b) Any conditions and requirements established by the city which are reasonably related to the reduction or elimination of pollutants in stormwater runoff from the project site.

(2) Prior to the issuance by the city of a grading permit, building permit or nonresidential plumbing permit for any new development or significant redevelopment, the planning agency shall review the project plans and impose terms, conditions and requirements on the project in accordance with division (A)(1) above. If the new development or significant redevelopment will be approved without application for a grading permit, building permit or nonresidential plumbing permit, the planning agency (Planning Department, Public Works Department or Building Department) shall review the project plans and impose terms, conditions and requirements on the project in accordance with this section prior to the issuance of a discretionary land use approval or, at the city’s discretion, prior to recordation of a subdivision map.

(3) Notwithstanding the foregoing divisions (A)(1) and (A)(2) above, compliance with the DAMP shall not be required for construction of, or improvements to, a single-family detached residence unless the City Planning Agency determines that the construction may result in the discharge of significant levels of a pollutant into a tributary to the stormwater drainage system.

(4) Compliance with the conditions and requirements of the DAMP shall not exempt any person from the requirement to independently comply with each provision of this chapter.

(5) If the City Planning Agency determines that the project will have a de minimis impact on the quality of stormwater runoff, then it may issue a written waiver of the requirement for compliance with the provisions of the DAMP.

(6) The owner of a new development or significant redevelopment project, or upon transfer of the property to its successors and assigns, shall implement and adhere to the terms, conditions and requirements imposed pursuant to division (A)(1) above on a new development or significant redevelopment project.

(7) Each failure by the owner of the property or its successors or assigns, to implement and adhere to the terms, conditions and requirements imposed pursuant to division (A)(1) above on a new development or significant redevelopment project shall constitute a violation of this chapter.

(B) Cost recovery. The city shall be reimbursed by the project applicant for all costs and expenses incurred by the planning agency in the review of new development or significant development projects for compliance with the DAMP. The City Planning Agency may elect to require a deposit of estimated costs and expenses, and the actual costs and expenses shall be deducted from the deposit, and the balance, if any, refunded to the project applicant.

(Ord. 3121, passed - -2008)

(A) Discharge permit procedure.

(1) Permit. The owner of property or the operator of any facility, which property or facility is not otherwise subject to the requirements of a state general permit or a National Pollution Discharge Elimination System permit regulating stormwater discharges, shall submit an application, accompanied by a permit fee established by separate resolution, for a permit issued by the City Manager or his or her designee authorizing the release of non-stormwater discharges to the stormwater drainage system if:

(a) The discharge of material or substance is reasonably necessary for the conduct of otherwise legal activities on the property; and

(b) The discharge will not cause a nuisance, impair the beneficial uses of receiving waters or cause any reduction in established water quality standards.

(2) Application. The applicant shall provide all information requested by the City Manager or his or her designee for review and consideration of the application, including, but not limited to, specific detail as to the activities to be conducted on the property, plans and specifications for facilities located on the property, identification of equipment or processes to be used on-site and other information as may be requested in order to determine the materials and/or substances and quantities thereof, which may be discharged if permission is granted.

(3) Permit issuance. The permit shall be granted or denied by the City Manager or his or her designee no later than 60 business days following the filing and acceptance of the application as determined by the City Manager or his or her designee. The applicant shall be notified in person or by first-class mail, postage prepaid, of the action taken.

(4) Permit conditions. The permit may include terms, conditions and requirements to ensure compliance with the objectives of this chapter and as necessary to protect the receiving waters, including, but not limited to:

(a) Identification of the discharge location on the property and the location at which the discharge will enter the stormwater drainage system;

(b) Identification of the material and/or substance and quantities thereof to be discharged into the stormwater drainage system;

(c) Specification of pollution prevention techniques and structural or nonstructural control requirements as reasonably necessary to prevent the occurrence of potential discharges in violation of this chapter;

(d) Requirements for self-monitoring of any discharge;

(e) Requirements for submission of documents or data, such as technical reports, production data, discharge reports, self-monitoring reports and waste manifests; and

(f) Other terms and conditions appropriate to ensure compliance with the provisions of this chapter and the protection of receiving waters, including requirements for compliance with best management practices guidance documents approved by any federal, state or regional agency.

(5) General permit. In the discretion of the City Manager or his or her designee, the permit may, in accordance with the conditions identified in division (A)(4) above, be prepared as a general permit applicable to a specific category of activities. If a general permit is issued, the applicant shall provide any and all information which may be required by the City Manager or his or her designee for each and every person intended to discharge within the scope of the authorization provided by the general permit.

(B) Permit suspension, revocation or modification.

(1) The City Manager or his or her designee, may suspend or revoke any permit when it is determined that:

(a) The permittee has violated any term, condition or requirement of the permit or any applicable provision of this chapter;

(b) The permittee’s discharge or the circumstances under which the discharge occurs have changed so that it is no longer appropriate to except the discharge from the prohibitions on prohibited discharge contained within this chapter;

(c) The permittee fails to comply with any schedule for compliance issued pursuant to this chapter; or

(d) Any regulatory agency, including, but not limited to, the EPA or a Regional Water Quality Control Board having jurisdiction over the discharge, notifies the city or permittee that the discharge should be terminated.

(2) The City Manager or his or her designee may modify or amend the terms of any permit when it is determined that:

(a) Federal or state law requirements have changed in a manner that necessitates a modification to the permit;

(b) The permittee’s discharge or the circumstances under which the discharge occurs have changed so that it is appropriate to modify the permit’s terms, conditions or requirements; or

(c) A modification of the permit is necessary to ensure compliance with the objectives of this chapter or to protect the quality of receiving waters. The permittee shall be informed of any change in the permit terms and conditions at least 45 business days prior to the effective date of the modified permit.

(3) The determination that a permit shall be denied, suspended, revoked or modified may be appealed by a permittee pursuant to the same procedures applicable to administrative hearing and appeal of a notice hereunder. In the absence of a judicial order to the contrary, the permittee may continue to discharge pending issuance of the final administrative decision by the Hearing Officer.

(C) Limited permittee rights. Permits issued under this chapter are for the sole use of the person or entity specifically identified therein as the “permittee,” and authorize the specific operation at the specific location identified in the permit. The issuance of a permit does not vest the permittee with a continuing right to discharge.

(D) Transfer of permits. No permit issued pursuant to this chapter shall be transferred or assigned to or used by a person not named on the permit, unless prior written approval is obtained from the City Manager or his or her designee, which approval shall not be unreasonably withheld.

(Ord. 3121, passed - -2008)

The scope of inspections is as follows.

(A) Right to inspect. Prior to commencing any inspection as herein authorized, the authorized inspector shall obtain either the consent of the owner or occupant of the property or shall obtain an administrative inspection warrant or criminal search warrant.

(B) Entry to inspect. The authorized inspector may enter property to investigate the source of any discharge to any public street, inlet, gutter, storm drain or the stormwater drainage system located within the jurisdiction of the city.

(C) Compliance assessments. The authorized inspector may inspect property for the purpose of verifying compliance with this chapter, including, but not limited to:

(1) Identifying products produced, processes conducted, chemicals used and materials stored on or contained within the property;

(2) Identifying point(s) of discharge of all wastewater, process water systems and pollutants;

(3) Investigating the natural slope at the property, including drainage patterns and human-made conveyance systems;

(4) Establishing the location of all points of discharge from the property, whether by surface runoff or through a storm drain system;

(5) Locating any illicit connection or the source of prohibited discharge;

(6) Evaluating compliance with any permit issued pursuant to § 12.18.040 hereof; and

(7) Investigating the condition of any legal nonconforming connection.

(D) Portable equipment. For purposes of verifying compliance with this chapter, the authorized inspector may inspect any vehicle, truck, trailer, tank truck or other mobile equipment.

(E) Records review. The authorized inspector may inspect all records of the owner or occupant of property relating to chemicals or processes presently or previously occurring on-site, including material and/or chemical inventories, facilities maps or schematics and diagrams, material safety data sheets, hazardous waste manifests, business plans, pollution prevention plans, state general permits, stormwater pollution prevention plans, monitoring program plans and any other record(s) relating to illicit connections, prohibited discharges, a legal nonconforming connection or any other source of contribution or potential contribution of pollutants to the stormwater drainage system.

(F) Sampling and testing. The authorized inspector may inspect, sample and test any area runoff, soils area (including groundwater testing), process discharge, materials within any waste storage area (including any container contents), and/or treatment system discharge for the purpose of determining the potential for contribution of pollutants to the stormwater drainage system. The authorized inspector may investigate the integrity of all storm drain and sanitary sewer systems, any legal nonconforming connection or other pipelines on the property using appropriate tests, including, but not limited to, smoke and dye tests or video surveys. The authorized inspector may take photographs or video tape, make measurements or drawings and create any other record reasonably necessary to document conditions on the property.

(G) Monitoring. The authorized inspector may erect and maintain monitoring devices for the purpose of measuring any discharge or potential source of discharge to the stormwater drainage system.

(H) Test results. The owner or occupant of property subject to inspection shall, on submission of a written request, receive copies of all monitoring and test results conducted by the authorized inspector.

(Ord. 3121, passed - -2008)

The authorized inspector may, in his or her discretion, issue either a notice of noncompliance, or a cease and desist order as hereinafter described. In determining which remedy option to pursue, the authorized inspector may consider the severity of the discharge or violation, the potential for irreparable harm which may be caused by the discharge or violation and/or whether the owner, occupant or responsible person is a repeat offender of the same or similar violation.

(A) Notice of noncompliance. The authorized inspector may deliver to a permittee, the owner or occupant of any property, or to any person responsible for an illicit connection or prohibited discharge, a notice of noncompliance. The notice of noncompliance shall be delivered in accordance with division (D) below.

(1) The notice of noncompliance shall identify the provision(s) of this chapter and/or the applicable permit which has been violated. The notice of noncompliance shall state that continued noncompliance may result in additional enforcement actions against the owner, occupant and/or person.

(2) The notice of noncompliance shall state a compliance date that must be met by the owner, occupant and/or person provided; however, that the compliance date may not exceed 90 days unless the authorized inspector extends the compliance deadline up to an additional 90 days where good cause exists for an extension. When the authorized inspector makes a finding of good cause for an extension, he or she shall articulate the finding and the reasons therefor in the notice of noncompliance.

(3) The notice of noncompliance may include the following terms and requirements:

(a) Specific steps and time schedules for compliance as reasonably necessary to eliminate an existing prohibited discharge and/or to prevent the imminent threat of a prohibited discharge, including, but not limited to, a prohibited discharge from any pond, pit, well, surface impoundment, holding or storage area;

(b) Specific steps and time schedules for compliance as reasonably necessary to discontinue any illicit connection;

(c) Specific requirements for contain- ment, cleanup, removal, storage, installation of over- head covering or proper disposal of any pollutant having the potential to contact stormwater runoff;

(d) Any other terms or requirements reasonably calculated to prevent the imminent threat of or continuing violations of this chapter, including, but not limited to, requirements for compliance with best management practices guidance documents promulgated by any federal, state or regional agency; and

(e) Any other terms or requirements reasonably calculated to achieve full compliance with the terms, conditions and requirements of any permit issued pursuant hereto.

(B) Cease and desist orders.

(1) The authorized inspector may issue a cease and desist order. A cease and desist order shall be delivered in accordance with division (D) below. A cease and desist order may direct a permittee, the owner or occupant of any property and/or other person responsible for a violation of this chapter to:

(a) Immediately discontinue any illicit connection or prohibited discharge to the stormwater drainage system;

(b) Immediately contain or divert any flow of water off the property, where the flow is occurring in violation of any provision of this chapter;

(c) Immediately discontinue any other violation of this chapter;

(d) Clean up or remediate the area affected by the violation; or

(e) Immediately cease any activity not in compliance with the terms, conditions and requirements of the permit issued pursuant to § 12.18.040(A)(4).

(2) A cease and desist order takes effect immediately. An appeal under § 12.18.080 does not stay the order, which shall control until the conclusion of the appeal proceedings.

(C) Recovery of costs.

(1) The authorized inspector may deliver to the owner or occupant of any property, any permittee or any other person who has failed to comply with either a notice of noncompliance or a cease and desist order, an invoice for costs (invoice of cost) for reimbursement of the city’s actual costs incurred in issuing and enforcement of any provision of this chapter. Actual costs shall include, but are not limited to, the cost to the city for the reinspection of the property, preparation, issuance and enforcement of any subsequent notice or order. The invoice of cost shall not apply to the first reinspection after service of the notice or order if the owner or occupant of any property, the permittee or person has corrected all violations as set forth in the notice or order. The costs charged herein are intended to compensate for administration costs and not for enforcement of the law.

(2) The invoice for costs shall be due and payable to the city within 30 days from the date of service. If any owner, occupant, permittee or person fails to pay the invoice for costs or file a timely appeal pursuant to § 12.18.080, then the enforcing attorney may institute collection proceedings.

(D) Delivery of notice. Any notice of noncompliance, cease and desist order, notice of legal nonconforming connection or invoice of costs (collectively, the “notice”) shall be delivered pursuant to the following requirements.

(1) The notice shall state that the recipient has a right to appeal the matter as set forth in § 12.18.080.

(2) Delivery shall be deemed complete upon:

(a) Personal service to the recipient;

(b) Five calendar days following deposit of the notice in the U.S. mail, postage pre-paid for first class delivery; or

(c) Facsimile service with confirmation of receipt.

(3) Where the recipient of notice is the owner of the property, the address for notice shall be the address from the most recently issued equalized assessment roll for the property or as otherwise appears in the current records of the city.

(4) Where the recipient is a permittee, the address for notice shall be the address set forth on the application for a permit.

(5) Where the owner or occupant of any property cannot be located after the reasonable efforts of the authorized inspector, a notice shall be deemed delivered after posting said notice on the property for a period of ten business days.

(E) City abatement. In the event the owner or occupant of property, the operator of a facility, a permittee or any other person fails to comply with any provision of a compliance schedule issued to such owner, occupant, operator, permittee or person pursuant to this chapter, the authorized inspector may request the enforcing attorney to obtain an abatement warrant or other appropriate judicial authorization to enter the property, abate the condition and restore the property. Any costs incurred by the city in obtaining and carrying out an abatement warrant or other judicial authorization may be recovered pursuant to division (C) above.

(Ord. 3121, passed - -2008)

Any condition in violation of this chapter, including, but not limited to, the maintenance or use of any illicit connection or the occurrence of any prohibited discharge, shall constitute a threat to the public health, safety and welfare, and is declared and deemed a nuisance pursuant to Cal. Gov’t Code § 38771.

(A) Court order to enjoin and/or abate. At the request of the City Manager or his or her designee, the enforcing 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 authorized inspector 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.

(C) Emergency abatement. In the event the nuisance constitutes an imminent danger to public health and/or safety or the environment, the City Manager or his or her designee may enter the property from which the nuisance emanates, abate the nuisance and restore any property affected by the nuisance. To the extent reasonably practicable, informal notice shall be provided to the owner or occupant prior to abatement. If necessary to protect the public health and/or safety or the environment, abatement may proceed without prior notice to or consent from the owner or occupant thereof and without judicial warrant.

(1) An imminent danger shall include, but is not limited to, exigent circumstances created by the dispersal of pollutants, where the same presents a significant and immediate threat to the public health and/or safety or the environment.

(2) Notwithstanding the authority of the city to conduct an emergency abatement action, the administrative hearing and appeal procedures pursuant to § 12.18.080(D) shall follow the abatement action.

(D) 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.

(E) (1) All costs shall become a lien against the property from which the nuisance emanated and a personal obligation against the owner thereof in accordance with Cal. Gov’t Code §§ 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 Cal. Gov’t Code § 38773.1.

(2) At the direction of the City Manager or his or her designee, the enforcing attorney may be 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 accordance with the conditions and requirements of Cal. Gov’t Code § 38773.5.

(Ord. 3121, passed - -2008)

(A) Administrative hearing. Except as set forth in divisions (C) and (D) below, any person receiving a notice, or any person who is subject to any adverse determination made pursuant to this chapter, may appeal the matter by requesting an administrative hearing as set forth below. These administrative appeal procedures shall not apply to criminal proceedings initiated to enforce this chapter.

(B) Request for administrative hearing. Any person appealing a notice or an adverse determination shall, within 30 days of receipt thereof, file a written request for an administrative hearing with the office of the City Clerk, accompanied by an administrative hearing fee as established by separate resolution. A copy of the request for administrative hearing shall also be mailed on the date of filing to the Hearing Officer. Thereafter, a hearing on the matter shall be held before the Hearing Officer within 45 business days of the date of filing of the written request unless, in the reasonable discretion of the Hearing Officer and pursuant to a written request by the appealing party, a continuance of the hearing is granted.

(C) Administrative hearing for cease and desist orders. Any person appealing a cease and desist order shall, within ten business days of receipt thereof, file a written request for an administrative hearing with the office of the City Clerk, accompanied by an administrative hearing fee as established by separate resolution. Upon filing of the appeal, the City Clerk shall provide the Hearing Officer forthwith with a copy of the request for administrative hearing. Thereafter, a hearing on the matter shall be held before the Hearing Officer within ten business days of the date of filing of the written request unless, in the reasonable discretion of the Hearing Officer and pursuant to a written request by the appealing party, a continuance of the hearing is granted.

(D) Administrative hearing for emergency abatement actions. An administrative hearing following an emergency abatement action shall be held within five business days following the action of abatement, unless the hearing (or the time required for the hearing) is waived in writing by the party subject to the emergency abatement. A request for an administrative hearing shall not be required for the person subject to the emergency abatement action.

(E) Hearing proceedings. The authorized inspector shall appear in support of the notice, cease and desist order or emergency abatement action, and the appealing party shall appear in opposition of the notice, cease and desist order or emergency abatement action. Each party shall have the right to present testimony and other documentary evidence as necessary for explanation of the case.

(F) Hearing officer’s decision.

(1) The decision of the Hearing Officer shall issue within ten business days of the conclusion of the hearing and shall be delivered by first-class mail, postage prepaid, to the appealing party.

(2) Notwithstanding the above, the decision of the Hearing Officer in any preceding determining the validity of a cease and desist order shall be mailed within five business days following the conclusion of the hearing. However, all other provisions in this chapter regarding appeal procedures shall apply to cease and desist orders.

(G) Appeal to the Appeals Board. An aggrieved party may appeal the decision of the Hearing Officer by filing a written notice of appeal with the Appeals Board. The appeal hearing shall be conducted pursuant to § 6.01.100.

(H) Appeal Board decision final.

(1) The decision of the Appeals Board shall be final. The decision must include notice that any legal challenge to the final decision shall be made pursuant to the provisions of Cal. Code of Civil Procedure §§ 1094.5 and 1094.6 and shall be commenced within 90 days following issuance of the final decision.

(2) The administrative hearing fee paid by a prevailing party in an appeal shall be refunded.

(Ord. 3121, passed - -2008)

Any violation of the provisions of this chapter shall be deemed a misdemeanor and may be punished as such, notwithstanding the fact that at the discretion of the enforcing attorney, the violation of any section of this chapter may be filed as a misdemeanor or an infraction.

(Ord. 3121, passed - -2008)

Each day in which a violation occurs and each separate failure to comply with either a separate provision of this chapter, a notice of noncompliance, a cease and desist order or a permit issued pursuant to this chapter shall constitute a separate violation of this chapter punishable by fines or sentences issued in accordance herewith.

(Ord. 3121, passed - -2008)

Each and every remedy available for the enforcement of this chapter shall be nonexclusive and it is within the discretion of the authorized inspector or enforcing attorney to seek cumulative remedies, except that multiple monetary fines or penalties shall not be available for any single violation of this chapter.

(Ord. 3121, passed - -2008)

Any person acting in violation of this chapter also may be acting in violation of the Federal Clean Water Act or the State Porter-Cologne Act, Cal. Water Code Division 7 (commencing with § 13000), and other laws and also may be subject to sanctions, including civil liability. Accordingly, the enforcing attorney is authorized to file a citizen suit, pursuant to Federal Clean Water Act § 505(a), 33 U.S.C. § 1365(a), seeking penalties, damages and orders compelling compliance, and other appropriate relief. The enforcing attorney may notify EPA Region IX, the Santa Ana Regional Water Quality Control Boards or any other appropriate state or local agency, of any alleged violation of this chapter.

(Ord. 3121, passed - -2008)

At the request of the City Manager or his or her designee, the enforcing attorney may file in a court of competent jurisdiction a civil action seeking an injunction against any threatened or continuing noncompliance with the provisions of this chapter. 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.

(Ord. 3121, passed - -2008)

(A) The City Manager or his or her designee may cause the enforcing attorney to file an action for civil damages in a court of competent jurisdiction seeking recovery of:

(1) All costs incurred in enforcement of the 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; and

(3) Damages for irreparable harm to the environment.

(B) The enforcing attorney is authorized to file actions for civil damages resulting from any trespass or nuisance occurring on public land or to the stormwater drainage system from any violation of this chapter where the same has caused damage, contamination or harm to the environment, public property or the stormwater drainage system.

(Ord. 3121, passed - -2008)

The city may, to the extent authorized by law, elect to contract for the services of any public agency or private enterprise to carry out the planning approvals, inspections, permits and enforcement authorized by this chapter.

(Ord. 3121, passed - -2008)

Full compliance by any person or entity with the provisions of this chapter shall not preclude the need to comply with other local, state or federal statutory or regulatory requirements which may be required for the control of the discharge of pollutants into stormwater and/or the protection of stormwater quality.

(Ord. 3121, passed - -2008)