Modesto Municipal Code Art. 5 Enforcement Authority

(a) With respect to any violation of this chapter, the Director may utilize any enforcement powers authorized or provided in this Code. These include, but are not limited to, administrative remedies as set forth in Chapter 6 of Title 1 of this Code.

(b) The Director may exercise any of the following supplemental enforcement powers deemed necessary or advisable:

(1) Notice to Clean and Abate. Whenever the Director finds any oil, earth dirt, cans, rubbish, refuse, waste or any other material of any kind, in or upon the sidewalk abutting or adjoining any parcel of land, or upon any parcel of land or grounds, which may result in an increase in pollutants entering the City's MS4 or natural water course, he or she may give notice to remove and abate such oil, earth, dirt, cans, rubbish, refuse, waste or other material, in any manner that he or she may reasonably provide to any owner, operator, responsible party, tenant, permittee or other person or entity controlling the property or premises. The recipient of such notice shall undertake the activities as described in the notice.

In the event the owner or operator of a facility fails to conduct the activities as described in the notice, the Director may cause such required activities as described in the notice and the cost thereof shall be treated as costs of abating a nuisance and invoiced to the owner of the property pursuant to either Article 7 of Chapter 6 of Title 1 of this Code or Section 5-10.604. If unpaid, such costs shall constitute a lien against the affected property.

(2) Local Storm Water Pollution Prevention Plan. The Director shall have the authority to establish elements of a local SWPPP, and to require any business to adopt and implement such a plan, as may be reasonably necessary to fulfill the purposes of this chapter.

(3) Best Management Practices. The Director may establish the requirements of Best Management Practices for any premises.

(4) Compliance Schedule. Any activity not complying with the strictest of any applicable Federal or State standards or regulations covering the discharge of storm water or surface water, may require the Director to develop and implement a schedule for compliance for any measure or facilities as may be necessary to meet such standards and regulations. Failure to complete the compliance schedule by any specified date shall constitute a violation of this chapter.

(5) Cease and Desist Orders. When the Director finds that a discharge has taken place or is likely to take place in violation of this chapter, he/she may issue an order to the owner, tenant, occupant, or other persons in charge of day to day operations of any public or private property to cease and desist such discharge, or practice, or operation likely to cause such discharge and direct that those persons not complying shall:

(i) Immediately discontinue any illicit connection or illicit discharge to the MS4;

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

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

(iv) Clean up the area affected by the violation;

(v) Comply with all the provisions of any Storm Water Pollution Prevention Plan, local SWPPP, Storm Water Quality Management Plan, permit, and/or the ordinance codified in this chapter, and/or with a timetable established by the Director for such compliance;

(vi) Take appropriate remedial or preventive action to prevent any violation from recurring.

(6) Abatement. The Director may order the abatement of any discharge from any source to the City's MS4 when, in his/her opinion, the discharge causes or threatens to cause a condition which presents an imminent danger to the public health, safety, or welfare, or the environment, or a violation of a NPDES permit. 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 as specified in either Section 5-10.604, or Article 7 of Chapter 6 of Title 1 of this Code.

(7) Criminal Citation. The Director shall have and is hereby vested with the authority to arrest or cite any person who violates any section of this Code in the manner provided by the California Penal Code for the arrest or release on citation of misdemeanor infractions as prescribed by Chapter 5, 5c, and 5d of Title 3, Part 2 of the Penal Code (or as the same may be hereafter amended).

The Director may issue a citation and notice to appear in the manner prescribed by Chapter 5 of Title 3, Part 2 of the Penal Code, including Section 853.6 (or as the same may hereafter be amended). It is the intent of the City Council that the immunities prescribed in Section 836.5 of the Penal Code be applicable to public officers or employees acting the course and scope of employment pursuant to this chapter.

(c) The Director may also exercise the following supplemental enforcement powers deemed necessary or advisable for illicit discharges and illicit connections in violation of Section 5-10.201.

(1) Verbal Warning. The Director may issue a verbal warning for conditions that result in ordinance violations due to poor housekeeping or management practices.

(2) Notice of Violation. The Director may issue a notice of violation for first-time spills of small quantities (less than one (1) gallon for most products), failure to implement appropriate BMPs after receiving a verbal warning, and other minor infractions with minimal impact on the MS4 and the environment.

(3) Cease and Desist Order. The Director may issue a cease and desist order for failure to terminate illicit connection or otherwise fail to respond appropriately to an administrative compliance order, major or ongoing violations of the ordinance (e.g. large spills, gross negligence), and a significant impact to the environment caused by the violation.

(4) Referral. The Director may report the violations to the Stanislaus County Department of Environmental Resources, Central Valley Regional Water Quality Control Board, California Department of Fish and Game, and the City Attorney for action as appropriate. Such actions may be taken for failure to respond appropriately to a cease and desist order or if evidence indicates that the violator acted willfully with intent to cause, allow to continue, or conceal discharge in violation of the ordinance.

(d) The Director may also exercise the following supplemental enforcement powers deemed necessary or advisable for industrial and commercial business activities in violation of Section 5-10.203.

(1) Verbal Warning. The Director may issue a verbal warning for conditions that result in ordinance violations due to poor housekeeping or management practices. Verbal warnings are usually issued to facilities that are cooperative and willing to remedy the situation.

(2) Notice of Non-compliance (Notice of Violation and Notice to Clean). The Director may issue a notice of non-compliance for first-time isolated spills of small quantities (e.g. less than one (1) gallon for most products), failure to implement appropriate BMPs after receiving a verbal warning, and other minor infractions with minimal impact on the City's MS4 and the environment. Notices of non-compliance are usually issued to facilities that are cooperative and willing to remedy the situation.

(3) Administrative Compliance Order (Correction Order). The Director may issue an administrative compliance order for violations that are the same or similar to those identified in section (d)(2) of this section except the administrative compliance order is usually issued to facilities that are not cooperative or it is a second offense of a similar nature.

(4) Cease and Desist Order. The Director may issue a cease and desist order for failure to respond appropriately to a notice of non-compliance or administrative compliance order, facility is not cooperative, major or ongoing violations occur (e.g. large spills, gross negligence in housekeeping or management practices), or significant impacts to the environment are caused by the violation.

(5) Referral to Other Enforcement Authorities. The Director may refer or report violations for the failure to respond appropriately to previous warnings or orders or if evidence indicates that the violator acted willfully with intent to cause, allow to continue, or conceal discharge in violation of ordinance to the Stanislaus County Department of Environmental Resources, Central Valley Regional Water Quality Control Board, County Agricultural Commissioners Office, California Department of Fish and Game, County District Attorney and/or City Attorney for action, as appropriate.

(e) The Director may also exercise the following supplemental enforcement powers deemed necessary or advisable for construction activities in violation of Section 5-10.204.

(1) Verbal Warning. The Director may issue a verbal warning for conditions that result in ordinance violations due to poor housekeeping or management practices. Verbal warnings are usually issued to facilities that are cooperative and willing to remedy the situation.

(2) Notice of Violation. The Director may issue a notice of violation for conditions that result in ordinance violations due to a first-time, isolated incident, failure to implement appropriate BMPs after receiving a verbal warning, and minor infractions with minimal impact on the storm drain system and the environment. Notices of violation are usually issued to facilities that are cooperative and willing to remedy the situation.

(3) Administrative Compliance Order. The Director may issue an administrative compliance order for failure to respond appropriately to written notice, second offense of similar nature, minor infractions with minimal impact on the storm drain system and for a facility that is not cooperative.

(4) Stop Work Order. The Director may issue a stop work order for failure to respond appropriately to administrative compliance order, major violations of the ordinance (e.g. large spills, gross negligence in housekeeping or management practices) possibly requiring emergency spill response, third violation in a twelve (12) month period, ongoing discharges of pollutants to the storm drain system or to the environment, significant impact to the environment caused by the violation, or facility is not cooperative.

(5) Permit Revocation and Referral. The Director may revoke local permits if terms are violated due to a failure to respond appropriately to a stop work order or evidence indicates that violator acted willfully with intent to cause, allow to continue, or conceal discharge in violation of ordinance. The Director may report the violations to the Central Valley Regional Water Quality Control Board, California Department of Fish and Game, County District Attorney and the City Attorney for action, as appropriate.

(Ord. 3355 § 1, effective 10-8-04)

Any person served with an administrative citation, administrative notice and order, notice to clean and abate, cease and desist order, compliance schedule or is aggrieved by a decision of the Director may appeal pursuant to the provisions set forth in Article 5 of Chapter 6 of Title 1 of this Code.

(Ord. 3355 § 1, effective 10-8-04)