§ 98-585. Administrative enforcement remedies.

(a)

Warning Notice. When the City Engineer finds that any person has violated, or continues to violate, any provision of this Article, or any order issued hereunder, the City Engineer 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 a warning notice in no way relieves the alleged violator of liability for any violations occurring before or after receipt of a warning notice. Nothing in this subsection shall limit the authority of the City to take any action, including emergency action or any other enforcement action, without first issuing a warning notice.

(b)

Notification of Violation. When the City Engineer finds that any person has violated, or continues to violate, any provision of this Article, or any order issued hereunder, the City Engineer may serve upon that person a written Notice of Violation. Within ten (10) days of the receipt of this notice, an explanation of the violation and a plan for the satisfactory correction and prevention of reoccurrence thereof, to include specific required actions, shall be submitted by the alleged violator to the City Engineer. If the alleged violator denies that any violation occurred and/or contends that no corrective action is necessary, an explanation of the basis of any such denial or contention shall be submitted to the City Engineer within ten (10) days of receipt of the notice. Submission of an explanation and/or plan in no way relieves the alleged violator of liability for any violations occurring before or after receipt of the Notice of Violation. Nothing in this Section shall limit the authority of the City to take any action, including emergency action or any other enforcement action, without first issuing a Notice of Violation.

(c)

Consent Orders. The City may enter into Consent Orders, assurances of voluntary compliance, or other similar documents establishing an agreement with any person responsible for noncompliance with any provision in this Article or any order issued hereunder. Such documents may include specific action to be taken by the person to correct the noncompliance within a time period specified by the document. Such documents shall have the same force and effect as the administrative orders issued pursuant to Subsections (e)—(g) of this Section and shall be judicially enforceable.

(d)

Show Cause Hearing. The City Engineer may order any person who has violated, or continues to violate, any provision of this Article, or any order issued hereunder, to appear before the City Engineer and show cause why a proposed enforcement action should not be taken. Notice shall be served on the alleged violator specifying the time and place for the hearing, the proposed enforcement action, the reasons for such action, and a request that the alleged violator show cause why the proposed enforcement action should not be taken. The notice of the hearing shall be served personally or by registered or certified mail (return receipt requested) at least ten (10) days prior to the hearing. Such notice may be served on any authorized representative of the alleged violator. The hearing shall be conducted pursuant to the rights and procedures specified in Section 98-586(a)(7). Notice of the decision of the City Engineer from the hearing shall be served on the petitioning party personally or by registered or certified mail. A show cause hearing shall not be a bar against or prerequisite for taking any other action against the alleged violator.

(e)

Compliance Orders. When the City Engineer finds that any person has violated, or continues to violate, any provision of this Article, or any order issued hereunder, the City Engineer may issue an order to the violator directing that the violator come into compliance within a specified time limit. Compliance orders also may contain other requirements to address the noncompliance, including additional self-monitoring, and management practices designed to minimize the amount of pollutants discharged to the MS4 and waters of the United States. A compliance order may not extend the deadline for compliance established by a state or federal standard or requirement, nor does a compliance order relieve the person of liability for any violation, including any continuing violation. Issuance of a compliance order shall not be a bar against, or a prerequisite for, taking any other action against the violator.

(f)

Remediation: Abatement, and Restoration Orders. When the City Engineer finds that a person has violated, or continues to violate, any provision of this Article, or any order issued hereunder, and that such violation has adversely affected the MS4 or the waters of the United States, the City Engineer may issue an order to the violator directing him/her to undertake and implement any appropriate action to remediate and/or abate any adverse effects of the violation upon the MS4 or the waters of the United States, and/or to restore any part of the MS4 or the waters of the United States. Such remedial, abatement, and restoration action may include, but not be limited to: monitoring, assessment, evaluation of the adverse effects, determination of the appropriate remedial, abatement, and restoration action; confinement, removal, cleanup, treatment, and disposal of any discharged or released pollution or contamination; prevention, minimization, and/or mitigation of any damage to the public health, welfare, or the environment that may result from the violation; restoration or replacement of City property or natural resources damaged by the violation. The order may direct that the remediation, abatement, and/or restoration be accomplished on a specified compliance schedule and/or be completed within a specified period of time. An order issued under this Subsection does not relieve the violator of liability for any violation, including any continuing violation. Issuance of an order under this Subsection shall not be a bar against, or a prerequisite for, taking any other action against any responsible party.

(g)

Emergency Cease and Desist Orders. When the City Engineer finds that any person has violated, or continues to violate, any provision of this Article, or any order issued hereunder, or that the person's past violations are likely to recur, and that the person's violation(s) have caused or contributed to an actual or threatened discharge to the MS4 or waters of the United States which reasonably appears to present an imminent or substantial endangerment to the health or welfare of persons or to the environment, the City Engineer may issue an order to the violator directing it immediately to cease and desist all such violations and directing the violator to:

(1)

Immediately comply with all requirements of this Article; and

(2)

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.

Any person notified of an emergency order directed to it under this Subsection shall immediately comply and stop or eliminate its endangering discharge.

In the event of a discharger's failure to immediately comply voluntarily with the emergency order, the City Engineer may take such steps as deemed necessary to prevent or minimize harm to the MS4 or waters of the United States, and/or endangerment to persons or to the environment, including immediate termination of a facility's water supply, sewer connection, or other municipal utility services. The City Engineer may allow the person to recommence its discharge when it has demonstrated to the satisfaction of the City Engineer that the period of endangerment has passed, unless further termination proceedings are initiated against the discharger under this Article. A person that is responsible, in whole or in part, for any discharge presenting imminent endangerment shall submit a detailed written statement, describing the causes of the harmful discharge and the measures taken to prevent any future occurrence, to the City Engineer within ten days of receipt of the emergency order. 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.

The city shall not reinstate suspended services, that have been terminated in accordance with this Section, to the violator until:

a.

The violator presents proof, satisfactory to the City Engineer, that the noncompliant discharge has been eliminated and its cause determined and corrected;

b.

The violator pays the City for all costs the City incurred in responding to abating, and remediating the discharge or threatened discharge; and

c.

The violator pays the City for all costs the City will incur in reinstating service or access.

(h)

Red Tags. Whenever the City Engineer finds that any operator of a construction site has violated, or continues to violate, any provision of this Article, or any order issued thereunder, the City Engineer may order that a "Red Tag" be issued to the operator, posted at the construction site, and distributed to all City departments and divisions whose decisions affect any activity at the site. Unless express written exception is made by the City Engineer, the "Red Tag" shall prohibit any further construction activity at the site and shall bar any further inspection or approval by the City associated with a building permit, grading permit, subdivision plat approval, site development plan approval, or any other City approval necessary to commence or continue construction or to assume occupancy at the site. Issuance of a "Red Tag" order shall not be a bar against, or a prerequisite for, taking any other action against the violator.

(Ord. No. O-2009-025-11, § 1, 11-16-09)