(a) Definitions.
(1) For the purposes of Chapter 11-4 of this Code, "imminent and substantial risk to the public health or safety or to the environment" shall include a threat to human health or safety or to the environment that is expected to occur within a reasonably short time, or that is present now, although the impact of the threat may not be felt until later.
(2) For the purposes of this section, "cease and desist" or "cessation" shall mean stopping or suspension or bringing an end to a particular course of action or conduct, including but not limited to the closure of any business or part of any business or the closure or dismantling of any equipment.
(3) For the purposes of this section, "abate" or "abatement" shall include the remediation or correction of any activity or condition that amounts to a public nuisance or a violation of any of the provisions of this Code which are under the jurisdiction of the commissioner or the rules and regulations promulgated thereunder or the conditions of any permit or authorization issued thereunder, including but not limited to the controlling, sealing, removing or disposing of any such activity or condition.
(4) For the purposes of subsection (b)(4) of this section, "current threat" shall mean an emergency that (i) poses a direct and serious threat to human health or safety or to the environment, and (ii) which is occurring now.
(b) Emergency cessation and abatement.
(1) Emergency cessation – Authority. The Commissioner is hereby authorized to issue an emergency cessation order to any person who the Commissioner concludes is (i) causing, creating or contributing to any activity or condition that poses an imminent and substantial risk to the public health or safety or to the environment; or (ii) operating a facility or conducting an activity without a required permit or other written authorization issued by the Commissioner.
(2) Emergency abatement – Authority. In the event that the Commissioner concludes that any person is causing, creating or contributing to any activity or condition that has created, or is creating, an imminent and substantial risk to the public health or safety or to the environment, then the Commissioner may order such person to abate the risk within a time frame prescribed by the Commissioner.
(3) Duty to comply. Upon service of an order issued under this subsection (b), the person to whom the order is issued shall immediately comply with the requirements of the order. The duty to comply with such order shall arise at the moment of service of the order and shall continue until the time of cancellation, if any, of such order by the Commissioner, or until the order automatically expires in accordance with subsection (b)(9) of this section. Submittal of a demand for hearing as set out in subsection (b)(6) of this section shall not relieve any person of the duty to comply with the order issued by the Commissioner.
(4) Authority to abate.
(i) If the person to whom an order was issued under this subsection (b) does not comply with the requirements in the order as ordered by the Commissioner, then the Commissioner may undertake any abatement activities reasonably necessary to correct any imminent and substantial risk to the public health or safety or to the environment.
(ii) Nothing in this subsection shall be construed to prevent the Commissioner from acting without issuing an emergency abatement or emergency cessation order, where issuing such order is not practicable and the activity or condition poses a current threat to public health or safety or to the environment, nor shall this section be construed to deny any common law right to anyone to abate a nuisance.
(5) Cancellation of order. The Commissioner shall cancel a cessation or abatement order issued by the Commissioner in accordance with this subsection (b) when the Commissioner determines that the person to whom an order was issued has complied with the requirements in the order as ordered by the Commissioner. Cancellation of the Commissioner's order shall be made in writing and shall be served in the same manner as an order or notice may be served.
(6) Demand for a hearing. The person to whom an order was issued pursuant to this subsection (b) shall have 14 calendar days from the service date of the order to notify the Commissioner, on the appropriate form as provided by the Commissioner, of the person's demand for a hearing. Failure to notify the Commissioner of a demand for a hearing in accordance with this subsection shall constitute a waiver of the opportunity for a hearing.
(7) Initiation of a hearing. Within 7 calendar days of receiving a demand for a hearing on the appropriate form as provided by the Commissioner, the Commissioner shall initiate an administrative hearing in the Department of Administrative Hearings, Environmental Safety and Consumer Affairs Hearings Division, specifying the basis for the order, any related violations alleged in the order, and any allegation of noncompliance with such order. At the time of initiating such hearing, the Commissioner shall serve notice upon the person demanding the hearing of the date, time, the location of the hearing, and the penalties for failure to appear at the hearing.
(8) Hearing. The hearing shall be commenced in the Department of Administrative Hearings, Environmental Safety and Consumer Affairs Hearings Division, no later than 14 calendar days after the date on which the Commissioner received the demand for such hearing, unless a later hearing date is scheduled upon mutual consent of the parties. Upon the conclusion of the hearing, in addition to the finding of liability or no liability and imposing of fines and penalties consistent with this section, the administrative hearings officer shall have the authority to affirm or vacate the Commissioner's order.
(9) Expiration of order. If a hearing is not initiated or commenced in accordance with the terms set out in subsection (b)(7) or subsection (b)(8) above, then the order that would have been the subject of such hearing shall expire at 11:59 p.m. on the fourteenth calendar day after the date on which the Commissioner received notice of the demand for a hearing or at 11:59 p.m. on the hearing date scheduled upon mutual consent of the parties.
(c) Non-emergency cessation and non-emergency abatement.
(1) Non-emergency cessation – Authority. The Commissioner is hereby authorized to issue a non-emergency cessation order to any person, in the event that the Commissioner determines that any such person is violating any of the provisions of this Code which are under the jurisdiction of the Commissioner or the rules promulgated thereunder or the conditions of any permit or authorization issued thereunder, but such violation does not pose an imminent and substantial risk to the public health or safety or to the environment as defined in subsection (a)(1) above.
(2) Non-emergency abatement – Authority.
(A) If the Commissioner determines that any person is violating any of the provisions of this Code which are under the jurisdiction of the Commissioner or the rules promulgated thereunder or the conditions of any permit or authorization issued thereunder, but such violation has not created, or is not creating, an imminent and substantial risk to the public health or safety or to the environment as defined in subsection (a)(1) above, then the Commissioner may provide the person with a written order to address and correct the violation(s) within a time frame prescribed by the Commissioner.
(B) If the Commissioner determines that a public nuisance exists at a property, but the public nuisance does not create an imminent and substantial risk to the public health or safety or to the environment as defined in subsection (a)(1) above, then the Commissioner may provide the owner or operator of the property with a written order to address and correct the public nuisance within a time frame prescribed by the Commissioner.
(3) Cancellation of order. The Commissioner shall cancel a cessation or abatement order issued by the Commissioner in accordance with this subsection (c) when the Commissioner determines that the person to whom an order was issued has complied with the requirements in the order as ordered by the Commissioner. Cancellation of the Commissioner's order shall be made in writing and shall be served in the same manner as an order or notice may be served.
(4) Duty to comply and demand for a hearing. Any person to whom the Commissioner issues an order under this subsection (c) shall comply with such order as ordered by the Commissioner; provided, however, that if the person contests the order, the person shall notify the Commissioner within 15 calendar days from the service date of the order, on the appropriate form as provided by the Commissioner, of the person's demand for a hearing. If the person notifies the Commissioner of the person's demand for a hearing in accordance with this subsection, the order shall be stayed by the Commissioner until the Department of Administrative Hearings issues a final determination finding the person liable for one or more of the violations, or not liable for any of the violations, specified in the Commissioner's order, or affirming or vacating the Commissioner's order. Failure to notify the Commissioner of a demand for a hearing in accordance with this subsection shall constitute a waiver of the opportunity for a hearing, and the person to whom the Commissioner issued an order shall comply with the order and shall not recommence any operations or activities prohibited by such order unless the order is cancelled by the Commissioner.
(5) Initiation of a hearing. Within 30 calendar days of receiving a demand for a hearing on the appropriate form as provided by the Commissioner, the Commissioner shall initiate an administrative hearing in the Department of Administrative Hearings, Environmental Safety and Consumer Affairs Hearings Division, specifying the basis for the order, and any related violations alleged in the order. At the time of initiating such hearing, the Commissioner shall serve notice upon the person demanding the hearing of the date, time, the location of the hearing, and the penalties for failure to appear at the hearing. Upon the conclusion of the hearing, in addition to the finding of liability or no liability and imposing of fines and penalties consistent with this section, the administrative hearings officer shall have the authority to affirm or vacate the Commissioner's order.
(6) Expiration of order. If a hearing is not initiated in accordance with the terms set out in subsection (c)(5) above, then the order that would have been the subject of such hearing shall expire at 11:59 p.m. on the thirtieth calendar day after the date on which the Commissioner received notice of the demand for a hearing.
(7) Authority to abate.
(A) If (i) the person to whom an order was issued under this subsection (c) does not comply with the requirements in the order as ordered by the Commissioner, and does not notify the Commissioner of the person's demand for a hearing as provided in subsection (c)(4), or (ii) if any person does not comply with the requirements in the order after the Department of Administrative Hearings has affirmed the Commissioner's order, and such order has not been stayed by a court of competent jurisdiction, then the Commissioner may proceed to control, remove, dispose or otherwise abate the nuisance.
(B) In the event that no viable or responsive owner or operator of a property where a public nuisance or any violation of this Code exists, the Commissioner may take appropriate steps in order to control, remove, dispose, or otherwise abate the nuisance or violation.
(d) Order or notice.
(1) Content. The order or notice issued by the Commissioner under this section shall (i) be in writing; (ii) specify the activities to be ceased or the nuisance to be abated or the violation(s) to be corrected; (iii) specify the time frame within which the activities must be ceased or the nuisance must be abated or the violation(s) must be corrected; (iv) specify any related violations, for which the Commissioner seeks any remedy, that the person to whom such order or notice is issued is alleged to have committed; (v) inform such person of the time and manner to request a hearing before the Department of Administrative Hearings, to present evidence as to why the person is not liable for all or any of the violations specified in the Commissioner's order, and/or why the order should be vacated, and to contest any allegations specified in the order; and (vi) inform such person of the consequences of failing to request a hearing, and the consequences of failing to comply with the order or notice.
(2) Manner of service. An order or notice issued by the Commissioner under this section shall be served (i) by first class or priority mail, or express courier service at the person's residence address or, if the person is a business entity, at any mailing address identified for its registered agent or at its principal place of business; or (ii) by facsimile transmission or e-mail at the person's facsimile or e-mail address or, if the person is a business entity, at the facsimile or e-mail address identified for its registered agent; or (iii) by personal service, including personal service upon an employee or agent of the alleged violator at a place of business of the alleged violator or otherwise if such service is reasonably calculated to give the alleged violator actual notice; or (iv) if service cannot be made by either of (i) or (ii) or (iii) above, when the alleged violator is the owner or manager of the property by posting a copy of the order or notice on the front entrance of the building or other structure where the violation is found, or if the property is unimproved or fenced off, by posting a copy of the order or notice in a prominent place upon the property where the violation is found.
(3) Date of service. An order or notice issued by the Commissioner under this section shall be deemed served (i) four days after mailing if issued by first class mail, (ii) upon delivery confirmation or four days after delivery to the United States Postal Service for delivery by priority mail with delivery confirmation if issued by priority mail, whichever occurs sooner, (iii) upon delivery confirmation or four days after delivery to an express courier service if issued by express courier service, whichever occurs sooner, (iv) at 9:00 a.m. on the next business day if issued by facsimile transmission or e-mail, (v) upon delivery if issued by personal service, or (vi) upon posting of the copy of the order or notice if issued as provided in subsection 11-4-025(d)(2)(iv) above.
(e) Penalty, cost recovery and remedies.
(1) Penalty. Failure to comply with an order or notice issued under this section constitutes a violation of this section and is a separate and distinct violation from any related or unrelated violations of any other provision of this Code. Any person who violates subsection (b) of this section shall pay a penalty of $5,000 per day for every day the person is in violation; and any person who violates subsection (c) of this section shall pay a penalty of $500 per day for every day the person is in violation. Such person incurs daily penalties for her or his violations of an order or a notice during the pendency of that order or notice, regardless whether that order or notice is ultimately cancelled or modified by the Commissioner.
(2) Cost recovery. The City shall be authorized to bring a civil action to recover penalties from the person to whom an order or notice was issued under this section, and up to the amount of three times the abatement costs incurred by the department plus its attorney fees may be recovered in an appropriate action instituted by the Corporation Counsel or in a proceeding initiated by the Commissioner at the Department of Administrative Hearings.
(3) Liability. In addition to the penalties set forth herein-above, any person adjudicated liable for any related or unrelated offenses alleged by the Commissioner in an administrative hearing held pursuant to this section shall also be liable for all applicable penalties for those violations.
(4) Injunction. In addition to any other remedies, penalties or means of enforcement, the Commissioner may request the Corporation Counsel to make application on behalf of the City to any court of competent jurisdiction for an injunction requiring compliance with this section or for such other order as the court may deem necessary or appropriate to secure such compliance.
(Added Coun. J. 9-27-07, p. 9208, § 1; Amend Coun. J. 11-16-11, p. 13798, Art. II, § 6; Amend Coun. J. 11-7-22, p. 54948, Art. III, § 3)