Montclair Municipal Code Art. XVI Administrative Enforcement Remedies

A. This chapter provides for administrative remedies in addition to all other legal remedies, criminal or civil, which may be pursued by the City to address any violation of this chapter.

B. The City of Montclair Pretreatment Program Enforcement Response Guide is incorporated in this article as if set out in its entirety.

(Ord. 99-791 Exh. A (part); prior code § 6-6.1701)

The Hearing Board, as used in this chapter, shall consist of three members appointed by the City Manager, one of which shall be from the Public Works Department.

The Hearing Board shall be convened pursuant to Section 9.20.970 of this chapter for the purpose of determining whether a violation has occurred and, if it has, to issue an administrative order to gain correction of violation.

(Ord. 99-791 Exh. A (part); prior code § 6-6.1702)

Should the Director of Public Works determine that any discharge of pollutants to the City sewer system reasonably appears to present an imminent endangerment to the health or welfare of persons or the environment, he/she may immediately and effectively halt or prevent this discharge after informal notice to the user. All costs for severing and/or reinstating sewer service shall be borne by the user.

(Ord. 99-791 Exh. A (part); prior code § 6-6.1703)

A. Whenever the Director of Public Works determines that a violation of any provision of this chapter is occurring or exists, the Director may issue a written Notice of Violation to any person responsible for the violation. The notice of violation may include one or more of the following:

1. Stop Work Order. The City Engineer may serve a written stop work order on any person engaged in doing or causing to be done new construction, tenant improvements, alterations, or additions if:

a. No industrial user discharge permit has been granted by the City,

b. Work has begun without prior written approval by the City Engineer, or

c. Violations of this chapter are found at the site of the new construction, tenant improvements, alterations, or additions;

Any person served a stop work order shall stop such work forthwith until written authorization to continue is received from the City Engineer;

2. Cease and Desist Order. Cease and desist orders shall direct a user to cease and desist all discharge violations, to comply immediately with all discharge requirements, and to take such appropriate remedial or preventive action as may be needed to properly address a continuing or threatened discharge violation, including halting operations and/or terminating the discharge;

3. Compliance Time Schedule. Compliance time schedules direct a user to achieve or restore compliance by a specific date. If the user fails to achieve compliance within the time provided, sewer service may be discontinued; or

4. A requirement that the user shall submit to the City Engineer, within a prescribed period specified in the notice, which period shall not be less than 10 working days unless an emergency situation dictates a shorter period, a plan indicating the cause of the violation, corrective actions that will be taken to prevent recurrence and, if required, a proposed compliance time schedule indicating the dates those corrective actions will be completed.

B. A Notice of Violation issued pursuant to this chapter shall contain the following information:

1. The date and location of the violation;

2. The section of this chapter violated and a description of the violation;

3. The actions required to correct the violation;

4. The time period after which administrative penalties will begin to accrue if compliance with the notice of violation has not been achieved; and

5. Either a copy of this chapter or an explanation of the consequences of noncompliance with this chapter and a description of the hearing procedure.

(Ord. 99-791 Exh. A (part); prior code § 6-6.1704)

A. All notices required by this chapter shall be served as provided in Section 9.20.060 of this chapter.

B. Written notice shall be mailed to the user at the site location or other business address, and to the property owner at the address as shown on the last equalized County assessment roll.

C. When personal service or service by mail upon the property owner is unsuccessful, a copy of the Notice of Violation shall be conspicuously posted at the property which is the subject of the Notice of Violation.

D. The failure of any person to receive any notice required under this chapter shall not affect the validity of any proceedings taken under this chapter.

(Ord. 99-791 Exh. A (part); prior code § 6-6.1705)

A. If the Director of Public Works determines that all violations have been corrected within the time specified in the notice of violation, no further action shall be taken.

B. If full compliance is not achieved within the time specified in the Notice of Violation, the Director of Public Works shall direct that the Hearing Board be convened to consider the matter.

C. If the recipient of the Notice of Violation disputes the allegation(s) set out in the Notice of Violation, such recipient may request in writing to the Director of Public Works that the Hearing Board be convened to consider the matter.

D. The Hearing Board shall cause a written Notice of Hearing to be served on the violator and, when real property is involved, a Notice of Hearing shall be served on the property owner at the address as it appears on the last equalized County assessment roll available on the date the notice of hearing is prepared.

(Ord. 99-791 Exh. A (part); prior code § 6-6.1706)

A. Every Notice of Hearing shall contain the date, time and place at which such hearing shall be conducted by the Hearing Board.

B. Each hearing shall be set for a date not less than 10 days nor more than 30 days from the date of the Notice of Hearing unless the Director of Public Works determines that the matter is urgent or that good cause exists for an extension of time.

C. This hearing serves to provide a full opportunity for a person to object to the determination that a violation has occurred and/or that the violation has continued to exist. The failure of any person to appear at such hearing shall constitute that person's failure to exhaust administrative remedies.

(Ord. 99-791 Exh. A (part); prior code § 6-6.1707)

A. At the place and time set forth in the Notice of Hearing, the Hearing Board shall conduct a hearing on the Notice of Violation issued pursuant to Section 9.20.950 of this chapter.

B. The Hearing Board shall consider any written or oral evidence presented regarding the violation and compliance by the user and/or by the real property owner.

C. Within 20 days following the conclusion of the hearing, the Hearing Board shall make findings as supported by evidence received at the hearing and shall issue written findings on each alleged violation as follows:

1. If the Hearing Board finds by a preponderance of the evidence that a violation has occurred and that the violation was not corrected within the time period specified in the Notice of Violation, the Hearing Board shall issue an administrative order pursuant to Section 9.20.1000 of this chapter.

2. If the Hearing Board finds that no violation has occurred or that the violation was corrected within the time period specified in the Notice of Violation, the Hearing Board shall issue a finding of those facts.

(Ord. 99-791 Exh. A (part); prior code § 6-6.1708)

If the Hearing Board determines that a violation occurred which was not corrected within the time period specified in the Notice of Violation, the Hearing Board shall issue an administrative order which imposes any or all of the following:

A. An order to correct, including a compliance time schedule when appropriate;

B. Administrative penalties as provided in Section 9.20.1010 of this chapter;

C. Administrative costs as provided in Section 9.20.1020 of this chapter;

D. Reimbursement of costs incurred by the City for abatement, remediation and restoration pursuant to Section 9.20.1030 of this chapter;

E. Termination of sewer service;

F. Revocation of industrial user discharge permit pursuant to Section 9.20.840 of this chapter.

(Ord. 99-791 Exh. A (part); prior code § 6-6.1709)

A. The Hearing Board may impose administrative penalties for the violation of any provision of this chapter in an amount not to exceed a maximum of One Thousand (1000) Dollars per day for each ongoing violation, except that the total administrative penalty shall not exceed Twenty-Five Thousand (25,000) Dollars for any related series of violations, exclusive of administrative costs, interest and restitution for compliance reinspections, and for reimbursement of costs incurred by the City pursuant to Section 9.20.1030 of this chapter.

B. In determining the amount of the administrative penalty, the Hearing Board may take any or all of the following factors into consideration:

1. The duration of the violation;

2. The frequency, recurrence and number of violations, related or unrelated, by the same violator;

3. The seriousness of the violation;

4. The good faith efforts of the violator to come into compliance;

5. The economic impact of the penalty on the violator;

6. The impact of the violation on the community;

7. Such other factors as justice may require.

C. Administrative penalties imposed by the Hearing Board shall accrue from the date specified in the Notice of Violation and shall cease to accrue on the date established pursuant to subsection H of this section.

D. The Hearing Board, at its discretion, may suspend the imposition of applicable penalties for any period of time during which:

1. The violator has filed for necessary permits; and

2. Such permits are required to achieve compliance; and

3. Such permit applications are actively pending before the City.

E. Administrative penalties assessed by the Hearing Board shall be due by the date specified in the administrative order.

F. Administrative penalties assessed by the Hearing Board are a debt owed to the City and, in addition to all other means of enforcement, if the violation is located on real property, may be enforced by means of a lien against the real property on which the violation occurred.

G. If the violation is not corrected as specified in the Hearing Board's administrative order, administrative penalties shall continue to accrue on a daily basis until the violation is corrected, subject to the maximum amount set forth in subsection A of this section.

H. If the violator gives written notice to the Director of Public Works that the violation has been corrected and if the Director of Public Works finds that compliance has been achieved, the Director of Public Works shall deem the date such written notice was postmarked or personally delivered to the City, or the date of the final inspection, whichever first occurred, to be the date the violation was corrected. If no written notice is provided to the Director of Public Works, the violation will be deemed corrected on the date of the final inspection.

(Ord. 99-791 Exh. A (part); prior code § 6-6.1710)

A. The Hearing Board shall assess administrative costs against the violator when it finds that a violation has occurred and that compliance has not been achieved within the time specified in the Notice of Violation.

B. The administrative costs may include any and all costs incurred by the City in connection with the matter before the Hearing Board, including, but not limited to, costs of investigation, staffing costs incurred in preparation for the hearing and for the hearing itself, and costs for all reinspections necessary to enforce the Notice of Violation.

(Ord. 99-791 Exh. A (part); prior code § 6-6.1711)

In the event the user fails to take corrective action as called for in an administrative order, the City may make such corrections. The user shall be responsible for all costs and expenses incurred by the City as a result of such action.

(Ord. 99-791 Exh. A (part); prior code § 6-6.1712)

Failure to comply with the term of an administrative order of the Hearing Board may be enforced as:

A. A personal obligation of the violator; and/or

B. If the violation is in connection with real property, a lien upon the real property. The lien shall remain in effect until all of the administrative penalties, interest, administrative costs, and costs incurred by the City pursuant to Section 9.20.1030 of this chapter are paid in full.

(Ord. 99-791 Exh. A (part); prior code § 6-6.1713)

The City may collect the assessed administrative penalties, administrative costs, and costs incurred by the City pursuant to Section 9.20.1030 of this chapter by use of all available legal means, including recordation of a lien pursuant to Section 9.20.1070 of this chapter.

(Ord. 99-791 Exh. A (part); prior code § 6-6.1714)

Any person aggrieved by an administrative order of the Hearing Board may obtain review of the administrative order in the Superior Court by filing with the court a petition for writ of mandate as provided by law.

(Ord. 99-791 Exh. A (part); prior code § 6-6.1715)

A. Whenever the amount of any cost incurred by the City pursuant to Section 9.20.1030 of this chapter, any administrative penalty and/or administrative cost imposed by the Hearing Board pursuant to this chapter in connection with real property, has not been satisfied in full within 90 days of imposition and/or has not been successfully challenged by a timely writ of mandate, this obligation may constitute a lien against the real property on which the violation occurred.

B. Prior to the recording of any such lien, the Public Works Director shall prepare and file with the City Clerk a report stating the amounts due and owing. The City Clerk shall then fix a time, date and place for hearing such report and any protests or objections thereto by the City Council.

C. The Director of Public Works shall cause written notice to be served on the property owner not less than 10 days prior to the time set for the hearing. Such notice shall be served as provided in Section 9.20.060 of this chapter.

D. Any person whose real property is subject to a lien may file a written protest with the City Clerk and/or may protest orally at a City Council meeting.

E. Each written protest or objection must contain a description of the property in which the protesting party is interested and the grounds of such protest or objection.

F. The City Council, after the hearing, shall adopt a resolution confirming, discharging or modifying the amount of the lien.

G. Thirty days following the adoption of a resolution by the City Council imposing a lien, the City Clerk shall file the same as a judgment lien in the Office of the County Recorder of San Bernardino County, California.

H. The lien provided in this section shall have no force and effect until recorded with the County Recorder. Once recorded, the administrative order shall have the force and effect and priority of a judgment lien governed by the provisions of Section 697.340 of the Code of Civil Procedure and may be extended as provided in Sections 683.110 to 683.220, inclusive, of the Code of Civil Procedure.

I. Interest shall accrue on the principal amount of the judgment remaining unsatisfied pursuant to law.

(Ord. 99-791 Exh. A (part); prior code § 6-6.1716)

Once payment in full is received by the City for outstanding penalties and costs, the Director of Public Works shall either record a Notice of Satisfaction or provide the property owner or financial institution with a Notice of Satisfaction so they may record this notice with the Office of the County Recorder. Such Notice of Satisfaction shall cancel the City's lien.

(Ord. 99-791 Exh. A (part); prior code § 6-6.1717)

A. Injunctive Relief. If the City determines that any person has engaged in, is engaged in, or is about to engage in any acts or practices which constitute or will constitute a violation of this chapter or any regulation or order promulgated thereunder, the City Attorney may make application to the Superior Court for an order enjoining the acts or practices or for an order directing compliance. As established in 40 CFR Part 403.8(f)(l)(vi)(A) a permanent or temporary injunction, restraining order, or other appropriate order may be granted upon a showing that the person(s) has (have) engaged in, is (are) engaged in, or is (are) about to engage in the challenged acts or practices.

B. Civil Penalties. A user who has violated or continues to violate any provision of this chapter, an industrial user discharge permit, or order issued hereunder or any other pretreatment standard or requirement shall be liable to the City for a minimum civil penalty of not less than One Thousand (1000) Dollars and no more than a maximum civil penalty of Twenty-Five Thousand (25,000) Dollars per violation per day. In the case of a monthly or other long-term average discharge limit, penalties shall accrue for each day during the period of violation.

The City may recover reasonable attorneys' fees, court costs, and other expenses associated with enforcement activities, including sampling and monitoring expenses and the cost of any actual damages incurred by the City.

In determining the amount of civil 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 of the violation, any economic benefit gained by the user through the user's violation, corrective actions by the user, the compliance history of the user, and any other factor as justice requires.

Filing a suit for civil penalties shall not be a bar against or a prerequisite for taking any other action against a user.

C. Criminal Penalties. Any person who negligently or knowingly violates any of the provisions of this chapter is guilty of a misdemeanor punishable by a fine of not less than One Thousand (1000) Dollars per day of violation or by imprisonment for not more than one year or by both.

Any person who negligently or knowingly introduces into the City sewer system any pollutant or hazardous substance, which such person knew or reasonably should have known could cause personal injury or property damage or is not in compliance with all applicable federal, State, or local requirements or permits, which causes the POTW to violate any effluent limitation or condition in a permit issued to the City or the Inland Empire Utilities Agency under the Clean Water Act, shall be punishable by a fine of not less than One Thousand (1000) Dollars per day of violation or by imprisonment for not more than one year or by both.

Any person who knowingly makes a false material statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this chapter or who knowingly falsifies, tampers with, or renders inaccurate any monitoring device or method required to be maintained pursuant to this chapter is guilty of a misdemeanor punishable by a fine of not less than One Thousand (1000) Dollars per day of violation or by imprisonment for not more than one year or by both.

D. Remedies Nonexclusive. The remedies provided for in this chapter are not exclusive. The City may take any, all, or any combination of enforcement actions against a noncompliant user. Enforcement of pretreatment violations will generally be in accordance with the City's Pretreatment Program Enforcement Response Guide; however, the City may take other action against any user when the circumstances warrant.

(Ord. 99-791 Exh. A (part); prior code § 6-6.1718)

In the event the City is subject to the payment of fines or penalties pursuant to the legal authority and actions of other regulatory or enforcement agencies based on a violation of law, regulation or agreement and said violation can be established by the City as being caused by the discharge of any user of the City sewer system which is in violation of any provisions of this chapter or the user's industrial user discharge permit, the City shall be entitled to recover from the user all costs and expenses, including, but not limited to, the full amount of said fines or penalties to which the City has been subjected.

(Ord. 99-791 Exh. A (part); prior code § 6-6.1719)

Any obstruction, damage or other impairment to the City sewer system, including, but not limited to, spill containment, recovery and disposal systems, or the Inland Empire Utility Agency's sewer system or facilities, caused by a discharge of waste and/or wastewater may result in the Director of Public Works assessing a charge against the user for the work required to clean or repair the facility or the cost to resume normal operation. An administrative fee shall be added to the charges payable within 30 days of invoicing by the City. These charges and fees shall be in addition to any other fines, penalties, assessments and fees imposed by other regulatory or service agencies.

(Ord. 99-791 Exh. A (part); prior code § 6-6.1720)

It is acknowledged that the City approved that certain agreement known as the Regional Pretreatment Agreement, entered into by and among the Inland Empire Utilities Agency, the Cucamonga County Water District, and the cities of Montclair, Chino, Chino Hills, Fontana, Upland, and Ontario. Pursuant to the conditions of this agreement, the City allows and authorizes the Inland Empire Utilities Agency to regulate industrial users within the corporate limits of the City who are tributary to the regional sewer system and provides the Inland Empire Utilities Agency fully enforceable legal authority as the operator of the regional treatment plant to inspect, permit and control indirect discharges to the regional plants.

(Ord. 99-791 Exh. A (part); prior code § 6-6.1721)

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