(A) (1) Notice of violation. Whenever the village finds that a user has violated this subchapter, the village shall notify the user, in writing by registered or certified mail, personal service or posting of said notice at the facility where the alleged violation occurred, that the user shall perform any or all of the following:
(a) Install equipment or perform testing necessary to monitor, analyze and report of the condition of the user’s storm drainage system;
(b) Eliminate illicit connections or discharges;
(c) Cease and desist all violating discharges, practices or operations;
(d) Abate or remedy the stormwater pollution or contamination hazards and restore any affected property;
(e) Pay a civil penalty; or
(f) Implement source control or treatment BMP(s).
(2) If abatement of a violation and/or restoration of affected property are required, the notice shall set forth a deadline within which such remediation or restoration must be completed. Said notice shall further advise that, should the user fail to meet the deadline, then representatives of the village shall enter upon the facility and are authorized to take any and all measures necessary to abate the violation and/or restore the facility and the expense thereof shall be charged to the user and collected pursuant to division (C) of this section. Refusal to accept the notice shall not relieve the user of the obligation set forth herein.
(B) Civil penalties.
(1) Illicit discharges. Any user or other person, including but not limited to, a designer, contractor, agent, or engineer, who allows, acts, participates in, assists, or directs an illicit discharge, either directly or indirectly, shall be subject to civil penalties as follows:
(a) Yard waste and household products less than five gallons (volume based on best judgment of the village representative). First time offenders who discharge into the MS4 yard waste of five gallons or less of domestic or household products, where the quantity actually discharged is considered ordinary for household purposes shall be assessed a Category I civil penalty in the amount set forth in the schedule of civil penalties. Each day’s continuing violation shall constitute a separate and distinct offense for the purpose of assessing a civil penalty.
(b) Household products greater than five gallons, non-household products and unknown volume and nature. First time offenders who discharge into the MS4 more than five gallons of domestic or household products, who discharge substances generally not used in a home, including but not limited to process waste water, or who cannot provide clear and convincing evidence of the volume and nature of the substance discharged, shall be assess a Category II civil penalty. Each day’s continuing violation shall constitute a separate and distinct offense for the purpose of assessing a civil penalty.
(c) Waste products and bulk sales. First time offenders who discharge into the MS4 any substance that is a byproduct of a commercial or industrial process or any substance that was purchased at a bulk sales location shall be assess a Category II civil penalty. Each day’s continuing violation shall constitute a separate and distinct offense for the purpose of assessing a civil penalty.
(d) Repeat offenders. A User who discharges into the MS4 in violation of this subchapter more than once within a 12-month period, shall be assessed a civil penalty at one category level higher than the category assessed for a first time offender of the substance discharged. Each day’s continuing violation shall constitute a separate and distinct offense for the purpose of assessing a civil penalty.
(2) Illicit connections. Any user or other person, including but not limited to a designer, contractor, agent, or engineer, who allows, acts, participates in, assists, or directs the establishment of an illicit connection, either directly or indirectly, shall be subject to civil penalties as follows:
(a) First time offenders shall be assessed a Category II civil penalty in an amount set forth in the schedule of civil penalties. Each day’s continuing violation shall constitute a separate and distinct offense for the purpose of assessing a civil penalty.
(b) A user or person who is found to have violated division (B)(2)(a) of this section more than once within a 12-month period shall be assessed a Category III civil penalty in an amount set forth in the schedule of civil penalties. Each day’s continuing violation shall constitute a separate and distinct offense for the purpose of assessing a civil penalty.
(3) In the event the village is fined by the state or federal governments resulting from an illicit discharge or connection made by a user or other person, the user or other person at fault shall reimburse the village for the full amount of the civil penalty assessed by the state and/or federal governments as well as for the abatement costs incurred by the village during the investigation and restoration process pursuant to division (C) below.
(4) Civil penalties collected pursuant to this subchapter shall be credited to the Village of Clemmons Stormwater Fund.
(5) Schedule of penalties. The following civil penalties shall be imposed, up to the amount shown for each category, upon the user or person found to have violated this subchapter.
(a) Category I: civil penalty to not exceed $100 per day per violation.
(b) Category II: civil penalty to not exceed $500 per day per violation.
(c) Category III: civil penalty to not exceed $1,000 per day per violation.
(6) Penalty considerations. In determining the amount of the penalty, the Stormwater Administrator or designee shall consider:
(a) The degree and extent of harm to the environment, public health and public and private property.
(b) The cost of remedying the damage.
(c) The duration of the violation.
(d) Whether or not the violation was willful.
(e) The prior record of the person responsible for the violation in complying with this subchapter.
(f) The village’s enforcement costs and the amount of money saved by the violator through his, her or its noncompliance.
(C) Recovery of costs and fines. As authorized by G.S. § 160A-193, the offender shall be liable to the village for the civil penalty, all costs incurred by the village while enforcing this subchapter, including but not limited to: abatement costs, remedying the damage caused by the illicit discharge, restoring the facility, sampling, clean-up, the village’s administrative costs, costs of court, and costs of litigation, to include reasonable attorney’s fees. Within 30 days after the village has completed its abatement of the violation, restoration of the facility and/or its investigation and inspection, the violating user or person will be notified of the village’s total costs and the civil penalty, if any. The total amount due shall be paid within 30 days of the date of notice. If the amount due is not paid within 30 days, the charges shall constitute a lien on the land or premises where the nuisance occurred. A lien established pursuant to this division shall have the same priority and be collected as unpaid ad valorem taxes. The total amount due is also a lien on any other real property owned by the user within the village limits, except for the person’s primary residence. A lien established pursuant to this division is inferior to all prior liens and shall be collected as a money judgment. The user may avoid the lien on any other real property owned by the user within the village limits only if the user can show that the accrual or threatened discharge was created solely by another person. In the event that the user is able to pass the liability onto another person, the other person shall be liable to the village pursuant to this section.
(Ord. 2009-05, passed 5-26-09)