Chapter 12.80
ENFORCEMENT1
Sections:
12.80.010 Violations.
12.80.015 Enforcement.
12.80.020 Notices deemed received.
12.80.025 Emergency suspension of municipal stormwater system access.
12.80.030 Warning notice.
12.80.031 Notice of violation.
12.80.032 Administrative order.
12.80.034 Permit suspension and revocation.
12.80.035 Stop work order.
12.80.036 Compliance schedule.
12.80.040 Abatement.
12.80.050 Violations deemed a public nuisance.
12.80.060 Penalties.
12.80.070 Appeal.
12.80.080 Remedies not exclusive.
12.80.010 Violations.
(1) It shall be unlawful for any person to violate any provision of, or fail to comply with, any of the requirements of this title. Any person who has violated, or continues to violate, the provisions of this title may be subject to any or all of the enforcement actions outlined in this chapter, or may be restrained by injunction or otherwise abated in a manner provided by law.
(2) Each day a violation occurs or continues shall be considered a separate violation. (Ord. 5727 § 1, 2010).
12.80.015 Enforcement.
(1) The enforcement actions provided in this chapter are not exclusive; may be exercised singly, simultaneously, or cumulatively; may be combined with any other remedies authorized under law; and may be exercised in any order.
(2) To enforce any of the requirements of this title, the Director may gain compliance by:
(a) Instituting any or all actions as set out in this chapter;
(b) Causing appropriate action to be instituted in a court of competent jurisdiction; and/or
(c) Taking other action as the Director, in the exercise of the Director’s discretion, deems appropriate. (Ord. 5727 § 1, 2010).
12.80.020 Notices deemed received.
Written notices required by this title shall be deemed received by an alleged violator under any of the following circumstances, whichever shall first occur:
(1) Upon personal service to the violator, or the violator’s authorized agent, or any person apparently in charge of any office or place of business maintained by the alleged violator; or
(2) Upon execution of any return receipt or other proof of receipt of mail delivery by the alleged violator or any of the persons listed in subsection (1) of this section; or
(3) Three days following mailing by the City, via first-class U.S. Mail, to the alleged violator at the alleged violator’s last known residence or place of business; or
(4) Upon proof of actual notice to the alleged violator of the general substance of the written notice. (Ord. 5727 § 1, 2010).
12.80.025 Emergency suspension of municipal stormwater system access.
When the Director finds that any discharger has violated any provision of this title, or any order issued hereunder, or that the discharger’s past violations are likely to recur, and that said violations have caused or contributed to an actual or threatened discharge to the municipal separate storm sewer system or Waters of the State which reasonably appears to present an imminent or substantial endangerment to the health or welfare of people or the environment, the Director may issue an order to the discharger directing an immediate cease and desist of all such violations.
(1) The order will direct the discharger to:
(a) Immediately comply with all title requirements; and
(b) Take such appropriate preventive action as may be needed to properly address a continuing or threatened violation, including immediately halting operations and/or terminating the discharge.
(2) Any person notified of an emergency order directed to him under this title shall immediately comply and stop or eliminate any endangering discharge. In the event of a discharger’s failure to immediately comply voluntarily with the emergency order, the Director may take such steps as deemed necessary to prevent or minimize harm to the municipal separate storm sewer system or Waters of the State, and/or endangerment to persons or the environment, including immediate termination of the facility’s municipal stormwater connection or other municipal utility services.
(3) The Director may require a person that is responsible, in whole or in part, for any discharge presenting imminent danger to submit a detailed written statement, describing the causes of the harmful discharge and the measures taken to prevent any future occurrence. Such written statement shall be submitted to the Director within 30 days of receipt of the order.
(4) A person commits an offense if the person reinstates municipal separate storm sewer system access to premises terminated pursuant to this chapter without the prior approval of the Director.
(5) The Director may allow the discharger to recommence its discharge when it has demonstrated to the satisfaction of the Director that the period of endangerment has passed, unless further termination proceedings are initiated against the discharger under this chapter.
(6) Issuance of an emergency cease and desist order shall not be a bar against, or a prerequisite for, taking any other action against the violator. (Ord. 5727 § 1, 2010).
12.80.030 Warning notice.
When the Director finds that any person has violated, or continues to violate, any provision of this title, or any order issued hereunder, the Director may serve upon that person a written warning notice, specifying the particular violation believed to have occurred and requesting the discharger to immediately investigate the matter and to seek a resolution whereby any offending discharge will cease. Investigation and/or resolution of the matter in response to the warning notice in no way relieves the alleged violator of liability for any violations occurring before or after the receipt of the warning notice. (Ord. 5727 § 1, 2010).
12.80.031 Notice of violation.
Whenever the Director finds that a person has violated, or continues to violate, any provision of this title, or any order issued hereunder, the Director may order compliance by written notice of violation to the responsible person stating the nature of the violation(s).
(1) Such notice may require without limitation any or all of the following:
(a) The performance of monitoring, analyses, and reporting;
(b) The elimination of illicit connections or illegal discharges;
(c) That violating discharges, practices, or operations cease and desist;
(d) The abatement or remediation of stormwater pollution or contamination hazards and the restoration of any affected property;
(e) The implementation of source controls or best management practices (BMPs); and
(f) The submittal of a compliance schedule.
(2) If abatement of a violation and/or restoration of affected property is required, the notice may set forth a deadline within which a compliance schedule for such remediation or restoration must be completed in accordance with AMC 12.80.036. Said notice may further advise that, should the violator fail to remediate or restore the affected property within the deadlines established by and agreed to in the compliance schedule, the work will be done by the City or a contractor designated by the Director and the expense thereof shall be the responsibility of the violator pursuant to AMC 12.80.040. (Ord. 5727 § 1, 2010).
12.80.032 Administrative order.
Whenever the Director finds that a person has violated, or continues to violate, any provision of this title, or any order issued hereunder, the Director may provide a written administrative order stating the nature of the violation(s) and imposing sanctions.
(1) This order will be served upon the discharger in accordance with AMC 12.80.020.
(2) These sanctions may include:
(a) An order requiring corrective action.
(b) An order setting penalties as described in AMC 12.80.060 in the event corrective action is not undertaken as ordered.
(c) An order imposing penalties as described in AMC 12.80.060 in lieu of, or in addition to, an order of corrective action.
(d) An order requiring payment of City costs incurred as a result of a violation.
(e) An order requiring a compliance schedule as described in AMC 12.80.036.
(f) Disconnection from the municipal stormwater system pursuant to the rights and procedures set forth concerning emergency suspension of service in AMC 12.80.025. (Ord. 5727 § 1, 2010).
12.80.034 Permit suspension and revocation.
By written notification the Director may suspend or revoke a permit issued under the provisions of this title. Such suspension or revocation may be issued whenever the permit is issued on the basis of incorrect information supplied, or if its issuance or activity thereunder is in violation of any term or condition of the permit, this title, or of other pertinent Federal, State, or local statute, code, or regulation implemented through the enforcement of this title. Suspension or revocation of a permit will be subject to the provisions of AMC 12.80.035. (Ord. 5727 § 1, 2010).
12.80.035 Stop work order.
When a person or entity engages in an activity in such a manner as to cause, or creates a condition which causes, a violation of the provisions of this title or of other pertinent Federal, State, or local statute, code, or regulation implemented through the enforcement of this title, the Director may order all related activities stopped. The Director’s order will be served by notice, in writing, to persons engaged in the activity or causing such activity to be undertaken. Such persons shall forthwith stop all related activities until authorized by the Director to proceed with the work. (Ord. 5727 § 1, 2010).
12.80.036 Compliance schedule.
Following a release to the environment, the Director may require the discharger to submit a compliance schedule. This schedule will be a detailed description of specific actions to be taken to correct, clean, remediate, or restore the environment, structures, or property harmed by the release within a time period acceptable to the Director. The schedule will also address measures to prevent recurrence of the problem. Once approved by the Director, any violation of the compliance schedule is considered a violation of this section. (Ord. 5727 § 1, 2010).
12.80.040 Abatement.
(1) Immediate Abatement. The Director is authorized to require immediate abatement of any violation of this title that constitutes an immediate threat to the environment or the health, safety or well-being of the public. If any such violation is not abated immediately as directed by the Director, the City of Albany is authorized to enter onto private property and to take any and all measures required to remediate the violation. Any expense related to such remediation undertaken by the City of Albany shall be fully reimbursed by the property owner and/or responsible party. Any relief obtained under this section shall not prevent the City from seeking other and further relief authorized under this title.
(2) Abatement by the City. If the violation has not been corrected pursuant to the requirements set forth in any enforcement action issued by the Director under this chapter, or in the event of a decision of an appeal under AMC 12.80.070, within 10 days of the decision of the City Council, Building Board of Appeals, or Appeal Hearings Officer upholding the decision of the Director, the City or a contractor designated by the Director may enter upon the subject private property and is authorized to take any and all measures necessary to abate the violation and/or restore the property. It shall be unlawful for any person, owner, agent, or person in possession of any premises to refuse to allow the City or designated contractor to enter upon the premises for the purposes set forth above.
(3) Recovery of Abatement Costs. Within 30 days after abatement of the nuisance by the City, the Director or his/her designee may prepare a summary of all costs incurred to abate the nuisance, including administrative costs. This summary of costs may be delivered to the same person or persons to whom the enforcement action was sent per AMC 12.80.020, or their successors in title, and shall advise of the City’s intent to assess said costs against the real property and shall further advise the owner/owners of their right to a hearing before the City Council prior to assessment upon receipt by the Director, within 15 days of the date of receipt of notice, of a written request for a hearing.
(a) If the costs of abatement are not paid to the City within 30 days from the date of the receipt of the summary of costs, said summary shall be presented to the City Council and if the Council finds said costs to be reasonable, the Council shall pass an ordinance or resolution directing the amount of said costs be entered in the docket of City liens; and upon such entry being made, said costs shall constitute a lien upon the property in question. Prior to passing said ordinance or resolution, the Council will afford the property owner/owners a right to be heard by the Council if a written request for hearing has been received by the Director within 30 days of the date of mailing of the aforesaid summary of costs.
(b) The lien shall be enforced and shall bear interest at a rate to be determined by the Council at the time of the ordinance or resolution referred to above. The interest shall commence from the date of entry of the lien in the lien docket and shall have priority over all other liens and assessments to the maximum extent permitted by law.
(c) An error in the name of the property owner/owners/agents shall not void the assessment nor will a failure to receive the notice of the proposed assessment render the assessment void, but it shall remain a valid lien against the property. (Ord. 5727 § 1, 2010).
12.80.050 Violations deemed a public nuisance.
In addition to the enforcement processes and penalties herein provided, any condition caused or permitted to exist in violation of any of the provisions of this title is a threat to the environment, public health, safety, and welfare, and is declared and deemed a nuisance, and may be summarily abated or restored by the City at the violator’s expense, and/or a civil action to abate, enjoin, or otherwise compel the cessation of such nuisance may be taken by the City. (Ord. 5727 § 1, 2010).
12.80.060 Penalties.
(1) Administrative Fines. When the Director finds that a discharger has violated, or continues to violate, any provision of this title or any order issued hereunder, and that said violations have caused or contributed to an actual or threatened discharge to the municipal stormwater system or Waters of the State which reasonably appears to present an imminent or substantial endangerment to the health or welfare of people or the environment, the Director may fine such discharger. The amount of such administrative fine shall not be less than $250.00 per violation nor more than $2,500 per violation. Each day upon which a violation occurs or continues shall constitute a separate violation.
(2) Recovery of Costs Incurred by the City. Any person violating any of the provisions of this title who discharges or causes a discharge producing an obstruction or causes damage to or impairs the City’s stormwater system shall be liable to the City for any expense, loss, or damage caused by such violation or discharge. The City may require the discharger to pay for the costs incurred by the City for any cleaning, repair, or replacement work caused by the violation or discharge and for costs incurred by the City in investigating the violation and in enforcing this title against the user, including reasonable administrative costs, fees for testing, attorney fees, court costs, and all expenses of litigation. Refusal to pay the ordered costs shall constitute a violation of this title. The user shall also reimburse the City for any and all fines or penalties levied against the City as a result of a discharge by the user.
(3) Criminal Penalties. It shall be a misdemeanor punishable under the general penalty provisions of Chapter 1.04 AMC for any person to violate any provision or fail to comply with any of the requirements of this title. The maximum fine or penalty imposed by the municipal court shall be no less than $250.00 for each violation and no part of the fine shall be suspended. Each day upon which a violation occurs or continues shall constitute a separate violation. The City may commence an action for appropriate legal and/or equitable relief in the appropriate local court to enforce the penalty or remedy imposed by the City hereunder.
(4) Compensatory Action. In lieu of enforcement proceedings, penalties, and remedies authorized by this title, the Director and alleged violator may agree upon alternative compensatory actions, such as storm drain stenciling, attendance at compliance workshops, creek cleanup, etc. (Ord. 5727 § 1, 2010).
12.80.070 Appeal.
(1) Notwithstanding the provisions of AMC 12.80.025 and 12.80.040(1), any person or entity receiving a written notification of an enforcement action under this title may, within 10 days of the receipt of such notice, request in writing that the Director review the enforcement action. The written request (letter of appeal) shall state all points of disagreement and objection to the enforcement action. Upon receipt of the letter of appeal, a meeting shall be scheduled with the Public Works Director of the City of Albany, or authorized representative. The Director or authorized representative shall affirm, modify, or dismiss the enforcement action, and shall give written notice of his or her decision to the alleged violator.
(2) Within 10 days of receipt of the Public Works Director’s written notice of decision outlined above, the alleged violator may appeal the Public Works Director’s decision by serving a written notice of such appeal in the same manner as provided above. Thereafter, a hearing on such appeal shall be scheduled before City Council of the City of Albany, the Building Board of Appeal, or such Appeal Hearings Officer as the City may appoint for such purpose, at the discretion of the City Manager, considering the nature of the issues presented on appeal and the time constraints, resources, and schedule of the public hearing bodies. Thereafter, the City Council, Building Board of Appeal, or the Appeal Hearings Officer may render its decision based upon the record of the hearing on the enforcement action, grant an additional hearing to take additional evidence, or conduct a de novo hearing. The City Council, Building Board of Appeal, or Appeal Hearings Officer, in consultation with the City Attorney, shall establish rules and procedures for the conduct of the appeal in order to accord the discharger lawful due process. The burden of proof, on appeal, shall remain with the City by a preponderance of the evidence. The City Council, Building Board of Appeal, or Appeal Hearings Officer shall affirm, reverse, or modify the findings, conclusions, and requirements of the enforcement action and shall serve its decision, in writing, upon the discharger. The decision of the City Council or Appeal Hearings Officer shall be final. (Ord. 5727 § 1, 2010).
12.80.080 Remedies not exclusive.
The remedies listed in this title are not exclusive of any other remedies available under any applicable Federal, State, or local law and it is within the discretion of the Director to seek cumulative remedies. The Director may recover all attorneys’ fees, court costs, and other expenses associated with enforcement of this title, including sampling and monitoring expenses. (Ord. 5727 § 1, 2010).
Prior legislation: Ord. 5498.