Ontario Municipal Code Art. 6 Administrative Enforcement Remedies

Whenever the City Engineer or his 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 non-compliance.

(§ 2, Ord. 2755, eff. April 4, 2002)

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 non-compliance. 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 which 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. Pursuant to Cal. Gov't Code § 53069.4 and 36900(b) the following violation assessments will apply to the issuance of a Notice of Violation by the City Engineer or his or her authorized representative:

(a) A first Notice of Violation shall be issued for a first violation of this chapter and shall be punishable by a fine not exceeding One Hundred Dollars ($100.00);

(b) A second Notice of Violation shall be issued for a second violation of this same ordinance within one year and shall be punishable by a fine not exceeding Two Hundred Dollars ($200.00);

(c) A third Notice of Violation shall be issued for a third violation of this same ordinance within one (1) year and shall be punishable by a fine not exceeding Five Hundred Dollars ($500.00). Each additional violation of the same ordinance within one (1) year shall also be punishable by a fine of Five Hundred Dollars ($500.00).

(§ 2, Ord. 2755, eff. April 4, 2002)

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 judgement, the proposed compliance schedule would allow the user to cause harm to the receiving waters and/or the City's storm drainage system.

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

(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 Stormwater Quality Management Plan (SWQMP) and subsequent approval by the City Engineer or his or her designee; or,

(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 statues, rules or regulations authorizing termination of service for delinquency payment or for any other reasons. Storm drain service shall be re-instituted 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 re- instituting storm drain service.

(e) Immediate termination of service. The City Engineer may immediately suspend storm drain service and any non-stormwater discharge permit when such suspension is necessary, in the opinion of the City Engineer, to stop an actual or threatened discharge which 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 their 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 re-instituted 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 ten (10) working days of the date of storm drain service termination.

(§ 2, Ord. 2755, eff. April 4, 2002)

(a) Any discharger may request, or the City Engineer may order, an administrative heating, at which time, a discharger who causes or allows, or who has caused or allowed, an unauthorized discharge to enter into the City's stormwater 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, shall preside over the administrative heating, at which time each party, including the discharger and the City Engineer or his or her 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 ten (10) working days prior to the hearing. Service of the Notice of Hearing may be made on any agent or officer of the discharger.

(§ 2, Ord. 2755, eff. April 4, 2002)

(a) Pursuant to Cal. Gov't Code §§ 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 sixty (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 Ontario within thirty (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 which shall not exceed Three Thousand Dollars ($3,000) for each day for failing or refusing to timely comply with any compliance order established by the City;

(2) In an amount which shall not exceed Five Thousand Dollars ($5,000) 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 which shall not exceed Ten Dollars ($10.00) 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 which have remained delinquent for a period of sixty (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 judgement lien and continue for ten (10) years from the time of recording unless sooner released, and shall be renewable in accordance with the provisions of Cal. Code of Civil Procedure §§ 683.110 to 683.220, inclusive.

(5) All monies 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's storm drainage system or for other mitigation measures.

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

(f) The City may, at its option, elect to petition the Superior Court to confirm any order establishing civil penalties and enter judgement in conformity therewith in accordance with the provisions of Cal. Code of Civil Procedure §§ 1285 to 1287.6, inclusive.

(§ 2, Ord. 2755, eff. April 4, 2002)

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, non-routine 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 thirty (30) calendar days of invoicing.

(§ 2, Ord. 2755, eff. April 4, 2002)

Any decision of the City Engineer may be appealed. An appeal must be initiated within ten (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 heating on appeal shall be held on a date no more than fifteen (15) working days after receipt of the letter of appeal. The appellant shall be given at least five (5) working days notice of the time and place of the hearing. The City Manager, or the City Manager's designee, 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 City Engineer should not be upheld. Within forty-five (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.

(§ 2, Ord. 2755, eff. April 4, 2002)

(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.

(§ 2, Ord. 2755, eff. April 4, 2002)