Montclair Municipal Code Art. VIII Administrative Enforcement Remedies

Whenever the City Engineer or his or her designee finds that any discharger has the potential to violate or has already violated any prohibition, limitation, or requirement contained in this chapter, any NPDES stormwater permit, or the Basin Plan, the City may serve upon such person a written Notice of Correction stating the nature of the violation and the necessary actions that must be implemented to correct the situation. The NOC shall stipulate a time period by which the problem must be corrected and the penalties for noncompliance.

(Ord. 04-845 § 1(part))

When the City Engineer or his or her authorized representative finds that any discharger has failed to comply with a Notice of Correction or has violated or continues to violate any prohibition, limitation, or requirement contained in this chapter; any NPDES stormwater permit; or the Basin Plan, the City may serve upon such person a written Notice of Violation stating the nature of the violation and the penalties for noncompliance. At a minimum, the Notice of Violation shall require that the discharger submit to the City Engineer, within a time period specified in the notice, a plan indicating the cause of the violation and corrective actions that will be taken to prevent recurrence. A discharger shall be guilty of a separate offense for every day during any portion of which any violation of any provision of this chapter is committed, continued, or permitted by the discharger.

(Ord. 04-845 § 1(part))

(Ord. No. 10-915, § 1, 8-2-10)

The City Engineer may require compliance with any prohibition, limitation, or requirement contained in this chapter; any NPDES stormwater permit; or the Basin Plan by issuing an Administrative Order enforceable in a court of law or by directly seeking court action. Administrative Orders may include Compliance Orders, Stop Work Orders, Cease and Desist Orders, Termination of Service Orders, and Immediate Termination of Service Orders.

A. Compliance Orders. The City Engineer or his or her designee may issue a Compliance Order to any discharger who fails to correct a violation of this chapter, any NPDES stormwater permit, or the Basin Plan. The order shall be in writing, specify the violation(s), and require appropriate compliance measures within a specified time period. The Compliance Order may include the following terms and requirements.

1. Specific steps and time schedules for compliance as reasonably necessary to eliminate an existing prohibited discharge or illegal connection or to prevent the imminent threat of a prohibited discharge.

2. Specific requirements for containment, cleanup, removal, storage, installation of overhead covering, or proper disposal of any pollutant having the potential to contact stormwater runoff.

3. Installation of stormwater treatment devices, containment structures, wash racks, and addition and removal of stormwater drains.

4. Any other terms or requirements reasonably calculated to prevent 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.

The City Engineer or his or her designee may adopt a proposed compliance schedule submitted by the user or may adopt a revised compliance schedule if, in his or her judgment, the proposed compliance schedule would allow the user to cause harm to the receiving waters and/or the City storm drain system.

B. Stop Work Order. The City Engineer or Building Official 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:

1. No construction permit has been granted by the City.

2. Work has begun prior to the submittal of a written WQMP and subsequent approval by the City Engineer or his or her designee.

3. Violations of this article 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 or Building Official. A Stop Work Order shall require the discharger to pay a One Thousand Dollar ($1,000) penalty fee to the City for the issuance thereof.

C. Cease and Desist Order. When the City Engineer or his or her designee finds that any industrial and/or commercial discharger has violated or threatens to violate any prohibition, limitation, or requirement contained in this chapter; any NPDES stormwater permit or the Basin Plan, or NPDES stormwater permit, the City may issue a Cease and Desist Order directing the discharger to:

1. Immediately discontinue any illicit connection or prohibited discharge to the City's stormwater drainage system.

2. Immediately contain or divert any flow of water off the property where the flow is occurring in violation of any provision of this chapter.

3. Immediately discontinue any other violation of this chapter.

A Cease and Desist Order shall require the discharger to pay a One Thousand Dollar ($1,000) penalty fee to the City for the issuance thereof.

D. Termination of Service. When the City Engineer finds any industrial and/or commercial discharger who has a direct connection into the City's stormwater drainage system or has violated an Administrative Order, the City Engineer may terminate storm drain service to the discharger. The discharger shall be liable for all costs for termination of storm drain service incurred by the City. This provision is in addition to any other statutes, rules, or regulations authorizing termination of service for delinquency payment or for any other reasons. Storm drain service shall be reinstituted by the City Engineer after the discharger has complied with all the provisions of the Administrative Order. The discharger shall also be liable for all costs for reinstituting storm drain service.

E. Immediate Termination of Service. The City Engineer may immediately suspend storm drain service and any nonstormwater discharge permit when such suspension is necessary, in the opinion of the City Engineer, to stop an actual or threatened discharge that presents or may present an imminent or substantial endangerment to the health or welfare of persons or the environment or which significantly or could significantly cause pollution to the receiving waters, ground, and/or storm drainage system of the City. Any industrial and/or commercial discharger notified that its storm drain service has been suspended shall immediately cease and eliminate the discharge into the City stormwater drainage system.

In the event of failure to comply voluntarily with the Termination of Service Order, the City Engineer shall take appropriate steps including immediate severance of all applicable storm drain connections. All persons responsible for a discharge that may endanger the health or welfare of the community or the environment shall be liable for all costs incurred by the City in terminating storm drain service. Storm drain service shall be reinstituted by the City Engineer after the actual or threatened discharge has been eliminated. A detailed written statement, submitted by the industrial and/or commercial discharger describing the cause of the harmful contribution and the measures to prevent any future occurrence, shall be submitted to the City Engineer within 10 working days of the date of storm drain service termination.

(Ord. 04-845 § 1(part))

(Ord. No. 10-915, § 1, 8-2-10)

A. The City Engineer may suspend or revoke any permit when it is determined that:

1. The permittee has violated any term, condition, or requirement of the permit or any applicable provision of this Article VIII;

2. 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 article;

3. The permittee fails to comply with any schedule for compliance issued pursuant to this article; or

4. Any regulatory agency, including the EPA or a Regional Water Quality Control Board having jurisdiction over the discharge, notifies the City that the discharge should be terminated.

B. The City Engineer may modify any permit when it is determined that:

1. Federal or state law requirements have changed in a manner that necessitates a change in the permit;

2. 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

3. A change to the permit is necessary to ensure compliance with the objectives of this article or to protect the quality of receiving waters.

Except as otherwise provided herein, the permittee, or, in the case of a general permit, each person who has filed an application herein, 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.

C. 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 appeal of an Administrative Compliance Order hereunder. In the absence of a judicial order to the contrary, the permittee may continue to discharge pending issuance of the final administrative decision.

(Ord. 04-845 § 1(part))

A. Any discharger may request, or the City Engineer may order, an administrative hearing, at which time a discharger who causes or allows, or who has caused or allowed, an unauthorized discharge to enter into the City's storm-water drainage system or who continues to allow a violation of this chapter to exist may show cause why a proposed enforcement action should not be taken against him. The City Manager, or the City Manager's designee, an employee not directly involved in the enforcement of this chapter, shall preside over the administrative hearing, at which time each party, including the discharger and the City Engineer or his designee, shall have the right to present evidence.

B. A Notice of Hearing shall be served on the discharger specifying the time and place of the hearing and referencing the specific violation and/or violations of this chapter, the reasons why the action is to be taken, and the proposed enforcement action directing the discharger to show cause before the Hearing Officer why the proposed enforcement action should not be taken. The Notice of Hearing shall be served personally or by registered or certified mail, return receipt requested, at least 10 working days prior to the hearing. Service of the Notice of Hearing may be made on any agent or officer of the discharger.

(Ord. 04-845 § 1(part))

A. Pursuant to California Government Code Sections 54739 and 54740.5, the City Engineer may issue an administrative complaint to any person who violates this chapter, any prohibition or limitation thereof, or any compliance order, cease and desist order, stop work order, or injunction. The administrative complaint shall allege the act or failure to act that constitutes the violation, the proposed civil penalty, and the authority under which it is imposed.

B. The administrative complaint, served on the alleged violator by personal delivery or by certified mail, shall inform the person served that a hearing before the City Engineer shall be conducted within 60 days of the service of the complaint. The right to a hearing may be waived by the person who has been issued the administrative complaint, in which case the City shall not conduct a hearing. A person dissatisfied with the decision of the City Engineer may appeal to the City Council of the City of Montclair within 30 days of notice of the Engineer's decision.

C. If after the hearing or appeal, if any, it is found that the person has violated reporting or discharge requirements, the City Engineer or City Council may assess a civil penalty against that person. In determining the amount of the civil penalty, the City Engineer or City Council may take into consideration all relevant circumstances, including, but not limited to, the extent of harm caused by the violation, the economic benefit derived through any noncompliance, the nature and persistence of the violation, the length of time over which the violation occurs, and corrective action, if any, attempted or taken by the discharger.

D. Civil penalties may be assessed as follows:

1. In an amount that shall not exceed Three Thousand (3,000) Dollars for each day for failing or refusing to timely comply with any compliance order established by the City.

2. In an amount that shall not exceed Five Thousand (5,000) Dollars per violation for each day of discharge in violation of any discharge limitation, area wide urban runoff permit condition, or requirement issued, reissued, or adopted by the City.

3. In an amount that shall not exceed Ten (10) Dollars per gallon for discharges in violation of any stop work order, cease and desist order, or other orders or prohibition issued, reissued, or adopted by the City.

4. The amount of any civil penalties imposed under this section that have remained delinquent for a period of 60 days shall constitute a lien against the real property of the discharger from which the discharge originated, resulting in the imposition of the civil penalty. The lien provided herein shall have no force and effect until recorded with the County Recorder and, when recorded, shall have the force and effect and priority of a judgment lien and continue for 10 years from the time of recording unless sooner released and shall be renewable in accordance with the provisions of Sections 683.110 through 683.220, inclusive, of the California Code of Civil Procedure.

E. All money collected under this section shall be deposited in a special account of the City and shall be made available for the monitoring, treatment, and control of discharges into the City Storm Drainage System or for other mitigation measures.

F. Unless appealed, an order imposing administrative civil penalties shall become effective and final upon issuance thereof, and payment shall become due within 30 days of issuance of an invoice by the City of Montclair. Copies of these orders shall be served by personal service or by certified mail upon the party served with the administrative complaint and upon other persons who appeared at the hearing and requested a copy.

G. The City may, at its option, elect to petition the Superior Court to confirm any order establishing civil penalties and enter judgment in conformity therewith in accordance with the provisions of Sections 1285 through 1287.6, inclusive, of the California Code of Civil Procedure.

(Ord. 04-845 § 1(part))

Any person who damages monitoring equipment, has the potential to affect or affects human health or the environment, discharges pollutants into the City's storm drainage system, which causes or has the potential to cause increased maintenance of the system, nonroutine inspection, or sampling of the system, system blockages, or other damage or interference in the City's stormwater drainage system, or causes any other damages, including the imposition of fines or penalties on the City by federal, state, or local regulatory agencies shall be liable to the City for all damages and additional costs, including fines and penalties. An administrative fee, which shall be fixed by the City Manager based on the City's current overhead cost-allocation percentage, shall be added to these charges and shall be payable to the City within 30 calendar days of invoicing.

(Ord. 04-845 § 1(part))

Any decision of the City Engineer may be appealed. An appeal must be initiated within 10 working days after receipt of the notice of any decision or action by filing, with the City Engineer, a letter of appeal briefly stating therein the basis for such appeal. The hearing on appeal shall be held on a date no more than 15 working days after receipt of the letter of appeal. The appellant shall be given at least five working days' notice of the time and place of the hearing. The City Manager, or the City Manager's designee, an employee not directly involved in the enforcement of this chapter, shall provide the appellant and any other interested party the reasonable opportunity to be heard and in order to show cause why the determination of the City Engineer should not be upheld. Within 45 working days of the hearing, the City Manager, or the City Manager's designee, shall make a written decision regarding the appeal. The decision of the City Manager, or the City Manager's designee, shall be final. The imposition of fines or penalties shall be stayed during the appeal period unless the City Engineer determines that such a stay would threaten the public safety, health, or welfare.

(Ord. 04-845 § 1(part))

A. In addition to the penalties established by this chapter, any threat to public health, safety, or welfare shall be declared and deemed a public nuisance. Such public nuisance may be summarily abated and/or remedied by the City Engineer, and/or civil action to abate, enjoin, or otherwise compel the cessation of such nuisance may be taken by the City Attorney.

B. The cost of such abatement, remediation, and/or restoration shall be borne by the owner, lessee, or tenant of the property causing the violation. The cost thereof shall be a lien upon and against the property, and such lien shall continue in existence until the same shall be paid.

(Ord. 04-845 § 1(part))