(A) Notice of violation with compliance order.
(1) Whenever the Department Manager finds that a person has violated a prohibition or failed to meet a requirement of this subchapter, the Department Manager may issue a written notice of violation with compliance order to the responsible person. Such written notice may contain:
(a) A description of the exact nature of the violation;
(b) The order to eliminate the source of illicit connections or discharges;
(c) The order to cease all violating discharges, practices, or operations;
(d) The order to abate or remediate storm water pollution or contamination hazards and restore any affected property;
(e) A deadline within which any abatement, remediation or restoration must be completed;
(f) A statement advising the person that, should the person fail to remediate or restore within the established deadline, the work will be done by a designated governmental agency or a contractor and the expense thereof shall be charged to the person;
(g) The terms of an agreed order; and
(h) The notice of a hearing before the Board if an agreed order is not executed.
(2) Filing a notice of violation is not a prerequisite to filing a complaint alleging a violation before a court of competent jurisdiction within Elkhart County.
(3) Any written notice of violation shall be issued upon the responsible party by regular US mail or hand-delivered to the responsible party unless the applicable ordinance or statute requires different written notice.
(B) Agreed order. With the approval of the Board, the Department Manager may enter into an agreed order for the resolution of all matters relating to a violation of this subchapter. The agreed order shall include all of the following, as applicable:
(1) An admission of the violation;
(2) The order to cease all violating discharges, practices or operations;
(3) The deadline for ceasing all violating discharges, practices or operations;
(4) The order to eliminate the source of illicit connections or discharges;
(5) The deadline for eliminating the source of illicit connections or discharges;
(6) The order to abate or remediate storm water pollution or contamination hazards and restore any affected property;
(7) The deadline for abating or remediating storm water pollution or contamination hazards and restoring any affected property;
(8) The order to perform monitoring, analyses and reporting;
(9) The order for payment of administrative and remediation costs;
(10) The order for payment of fines or penalties; and
(11) A statement advising the person that the Department Manager or the Board may file a complaint with a court of competent jurisdiction to enforce the terms of the agreed order or an order of the Board.
(C) Board hearing.
(1) Before any Board hearing is held, unless an emergency exists, a party alleged to have violated this subchapter shall receive a written notice of violation as referenced in division (A) above. Only in the event of an emergency hearing before the Board, shall this information be orally presented to the affected party and the affected party may then elect to proceed or the affected party may insist on written notice and delay the hearing. The emergency action taken by the Board or the Department Manager shall continue until a hearing can be held.
(2) A party alleged to have violated this subchapter has the right to have an attorney present to cross examine witnesses, and has the right to present evidence and have witnesses testify.
(3) A party found to have violated this subchapter has a right to appeal the determination of the Board to a court of competent jurisdiction within 20 days of the action of the Board by filing a complaint. The court may affirm, modify or reverse the action taken by the Board. Any such appeal shall be heard de novo.
(D) Sanctions, fines and penalties.
(1) Any violation of this subchapter is subject to a fine of up to $2,500.
(2) The Board, or its designated representative, may enter upon private property and take any and all measures necessary to abate a violation, if a court of competent jurisdiction has found a violation of this subchapter has occurred and has approved the action to be taken by the city. The costs of such abatement shall be assessed to the owner of the private property.
(3) The city may suspend MS4 discharge access pursuant to § 50.40.
(4) The Board or any court may order the owner of the real estate or the responsible party for the operations on the real estate to take any and all actions necessary to comply with this subchapter.
(5) The city may recover reasonable attorney fees, court costs and other expenses associated with the enforcement of this subchapter including sampling and monitoring expenses and the cost of actual damages incurred by the city.
(6) Each day a violation continues constitutes a new and separate violation.
(7) If a party has violated this subchapter and continues to do so, the city may petition any court of competent jurisdiction within Elkhart County for the issuance of a temporary restraining order or permanent injunction which restrains or requires specific compliance with this subchapter.
(8) The city may obtain a lien against the real property to recover its response costs.
(E) Appeal of notice of violation. Any person receiving a notice of violation may appeal to the Board any part of its determination. The notice of appeal must be received within 20 days from the date of the notice of violation. Hearing on the appeal before the Board shall take place within 30 days from the date of receipt of the notice of appeal.
(F) Enforcement measures after appeal. If the violation has not been corrected pursuant to the requirements set forth in the notice of violation, or, in the event of an appeal, within 15 days of the decision of the Board after appeal, then representatives of the Board shall enter upon the subject private property and are authorized to take any and all measures necessary to abate the violation and restore the property. It shall be unlawful for any person, to refuse to allow the Board representative or designated contractor to enter upon the premises for the purposes set forth above.
(G) Injunctive relief. It shall be unlawful for any person to violate any provision or fail to comply with any of the requirements of this subchapter. If a person has violated or continues to violate the provisions of this subchapter, the Board may petition for a preliminary or permanent injunction restraining the person from activities which would create further violations or compelling the person to perform abatement or remediation of the violation.
(H) Alternative compensatory action. In lieu of enforcement proceedings, penalties, and remedies authorized by this subchapter, the Board may impose upon a violator alternative compensatory action, such as storm drain stenciling, attendance at compliance workshops, creek cleanup, or other appropriate measures.
(I) Remedies not exclusive. The remedies listed in this subchapter are not exclusive of any other remedies available under any applicable federal, state or local law and it is within the discretion of the Board to seek cumulative remedies.
(Ord. 5283, passed 12-5-2011)