§ 12.5-120 NUISANCE ABATEMENT.

   (a)   Unless specifically stated otherwise, any nuisance as defined within this chapter is hereby declared a nuisance if it exists within the corporate limits of the city or within 5,000 feet of such limits.

   (b)   A director may give notice to cease, abate, remove or otherwise remedy a nuisance immediately to:

      (1)   The owner of property upon which a nuisance is located or from which a nuisance originated or is emanating. If the person creating, allowing or maintaining the nuisance is not the owner of the property, notice shall also be given to such person; and

      (2)   Any person creating, allowing or maintaining a nuisance.

   (c)   The notice must be given:

      (1)   Personally to the owner/person in writing; or

      (2)   By letter addressed to the owner/person at the owner’s/person’s post office address and sent certified mail, return receipt requested. However, if personal or certified mail service cannot be obtained or the owner’s/person’s post office address is unknown, notice may be given:

         a.   By publication in the official newspaper of the city at least twice within ten consecutive days;

         b.   By posting the notice on or near the front door of each building on the property to which the nuisance relates; or

         c.   By posting the notice on a placard attached to a stake driven into the ground on the property to which the nuisance relates, if the property contains no buildings.

   (d)   The notice may order the owner/person to undertake and implement any appropriate action:

      (1)   To remediate and/or abate any adverse effects of the nuisance upon the MS4, the waters of the state, the waters of the United States or any other aspect of the environment; and/or

      (2)   To restore any part of the MS4, the waters of the state, the waters of the United States, or any other aspect of the environment that has been harmed.

   (e)   Such remedial, abatement and restoration action may include, but not be limited to:

      (1)   Monitoring, assessment and evaluation of the adverse effects and determination of the appropriate remedial, abatement and/or restoration action;

      (2)   Confinement, removal, cleanup, treatment and disposal of any discharged or released pollution or contamination;

      (3)   Prevention, minimization and/or mitigation of any damage to the public health, welfare or the environment that may result from the nuisance; and

      (4)   Restoration or replacement of city property or natural resources damaged by the nuisance.

   (f)   The notice 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 section does not relieve the violator of liability for any violation, including any continuing violation.

   (g)   If the owner/person does not comply with the notice within ten days of service, the director may enter any public or private property containing the nuisance and do any work necessary to abate the nuisance, except the demolition of buildings.

   (h)   If the immediate abatement of the nuisance is deemed necessary by a director to protect the environment or the public health, safety or welfare from an imminent and substantial endangerment, such director may, without complying with the notice provisions of this section or without waiting the ten-day period, enter the subject property and do or cause to be done any work necessary to abate the nuisance and remediate and restore the environment.

   (i)   After abating the nuisance, the director may inform the owner/person in a notice sent certified mail, return receipt requested, that if the owner/person commits another violation of the same kind or nature that poses a danger to the environment or to the public health and safety on or before the first anniversary date of the original notice, the city may without further notice correct the violation at the owner’s expense and assess the expense against the owner’s property.

   (j)   All costs incurred by the city to abate a nuisance and remediate and restore the environment, including the cost of giving notice as required, shall be initially paid by the city and charged to the owner of the property.

   (k)   To obtain a lien against the property, the director causing the abatement shall file a statement of expenses with the county clerk for the county in which the property is located. The lien statement shall state the name of the owner, if known, and the legal description of the property. The lien shall be security for the costs incurred and interest accruing at the rate of 10% on the amount due from the date of payment by the city.

   (l)   The lien is inferior only to:

      (1)   Tax liens; and

      (2)   Liens for street improvements.

   (m)   A lien may not be filed against real estate protected by the homestead provisions of the Texas Constitution.

(Ord. 12274, § 1, passed 11-28-1995)

§ 12.5-121 RIGHT OF ENTRY.

   (a)   A director may enter premises or vehicles regulated by this chapter at all reasonable times, whenever it is necessary to make an inspection to enforce any of the provisions of this chapter, to inspect permits and records required by this chapter, to collect air, water, waste or wastewater samples, or whenever probable cause exists to believe that a violation of this chapter or other environmental laws exists on such premises.

   (b)   A director shall first present his or her credentials and demand entry if the premises are occupied. If the premises are unoccupied, he or she shall first make a reasonable attempt to locate the owner or person in control of the premises and demand entry.

   (c)   Where premises have security measures in force which require proper identification and clearance before entry into its premises, the person in control of the premises shall make necessary arrangements with its security guards so that, upon presentation of suitable identification, the director will be permitted to enter without delay for the purposes of performing specific responsibilities.

   (d)   If entry is denied or if a person in control cannot be located, the director shall have every recourse provided by law to secure entry. Such recourse shall include the right to obtain a search warrant under the guidelines of the Texas Code of Criminal Procedure; and for the purposes of same, any person with enforcement authority under this chapter is hereby declared to be a “health officer.”

   (e)   Facilities regulated under this chapter are subject to the authority of the U.S. Environmental Protection Agency (EPA) under § 308 of the Federal Clean Water Act (33 U.S.C. § 3318), as amended, concerning access to information and right of entry onto property for purposes of implementing and enforcing the federal pretreatment program and other applicable provisions of the Federal Clean Water Act.

   (f)   Facilities regulated under this chapter are subject to the authority of the Texas commission on environmental quality (TCEQ) under the Tex. Water Code §§ 26.014 and 26.015, as amended, and Tex. Health and Safety Code §§ 361.032 and 361.037, as amended, concerning access to information and right of entry onto property for purposes of implementing and enforcing the State of Texas’ pretreatment program and other applicable provisions of the Texas Water Code and Texas Health and Safety Code.

(Ord. 12274, § 1, passed 11-28-1995; Ord. 17074, § 2, passed 7-25-2006)

§ 12.5-122 CONFIDENTIALITY OF RECORDS.

   (a)   Information and data obtained from reports, surveys, permit applications, permits and monitoring programs, and from a director’s inspection and sampling activities, shall be available to the public without restriction, unless the owner, operator or permittee specifically requests, and is able to demonstrate to the satisfaction of the city, that the release of such information would divulge information, processes or methods of production entitled to protection as trade secrets under the Texas Public Information Act.

   (b)   A person making an assertion of confidentiality shall do so at the time the information or data is submitted as follows.

      (1)   A cover sheet, stamped or typed legend, or other form of written notice shall be placed on or attached to the information, denoting it as “trade secret,” “proprietary” or “confidential;”

      (2)   At the time of submission, the document must be stamped the words “confidential business information” on each page containing such information. If no claim is made at the time of submission, director may make the information available to the public without further notice under applicable laws, including but not limited to the Texas Public Information Act. If a claim of confidentiality is asserted, the information will be made publicly available only to the extent authorized, and under the procedures established, by the applicable law;

      (3)   If only portions of a document are alleged to be confidential, such portions shall be clearly identified, and may be submitted separately to facility handling and identification by a director; and

      (4)   If the submitter wants the information to remain confidential only to a certain date or until the occurrence of a certain event, this shall also be clearly provided for in the request.

   (c)   All submitted records will be made available immediately upon request to governmental agencies for uses related to the city’s TPDES programs or pretreatment program, and in enforcement proceedings involving the person furnishing the report.

   (d)   Wastewater constituents and characteristics and other effluent data will not be recognized as confidential information and will be available to the public without restriction.

(Ord. 12274, § 1, passed 11-28-1995; Ord. 17074, § 3, passed 7-25-2006)

§ 12.5-123 JUDICIAL REMEDIES AND PENALTIES.

   (a)   Criminal remedies.

      (1)   An offense as defined under this chapter is a misdemeanor punishable by a fine not to exceed $2,000 in accordance with § 1-6(c). Each separate occurrence of a violation or each day that a violation continues shall constitute a separate offense.

      (2)   If an offense defined under this chapter does not include a culpable mental state, then intent, knowledge, or recklessness suffices to establish criminal responsibility.

      (3)   An offense is so defined in this code by the phrase: "A person commits an offense...."

   (b)   Civil remedies.

      (1)   The city may invoke Tex. Local Government Code §§ 54.012 through 54.017 and petition the state district court or the applicable county court at law, through the city attorney, for either injunctive relief, civil penalties or both injunctive relief and civil penalties, whenever it appears that a person has violated, or continues to violate, any provision of this chapter that relates to:

         a.   The preservation of public safety, relating to the materials or methods used in construction of any structure or improvement of real property;

         b.   The preservation of public health or to the fire safety of a building or other structure or improvement;

         c.   The establishment of criteria for land subdivision or construction of buildings, including street design;

         d.   Dangerously damaged or deteriorated structures or improvements;

         e.   Conditions caused by accumulations of refuse, vegetation or other matter that creates breeding and living places for insects and rodents; or

         f.   Point source effluent limitations or the discharge of a pollutant from a point source into the publicly owned treatment works (POTW) or MS4.

      (2)   Pursuant to Tex. Local Government Code § 54.016, the city may obtain against the owner or the operator of a facility, a temporary or permanent injunction, as appropriate, that:

         a.   Prohibits any conduct that violates any provision of this chapter that relates to any matter specified in subsection (b)(1) above; or

         b.   Compels the specific performance of any action that is necessary for compliance with any provision of this chapter that relates to any matter specified in subsection (b)(1) above.

      (3)   Pursuant to Tex. Local Government Code § 54.017, the city may recover a civil penalty of

not more than $1,000 per day for each violation of any provision of this chapter that relates to any matter specified in subsection (b)(1)a. through (b)(1)e. above, and a civil penalty of not more than $5,000 per day for each violation of any provision of this chapter that relates to any matter specified in subsection (b)(1)f. above, if the city proves that:

         a.   The defendant was actually notified of the provisions of the chapter; and

         b.   After the defendant received notice of the chapter provisions, the defendant committed acts in violation of the chapter or failed to take action necessary for compliance with the chapter.

      (4)   The city may also institute suit to recover the cost of any actual damages incurred by the city, and any costs of response, remediation, abatement and restoration incurred by the city as allowed under state or federal laws, or at common law.

      (5)   In determining the amount of civil liability, the court should take into account all relevant circumstances, including, but not limited to, the extent of harm caused by the violation, the magnitude and duration of the violation, any economic benefit gained through the violation, corrective actions by the violator, the compliance history of the violator and any other factors as justice requires.

      (6)   Whenever it appears that a violation or a threat of violation of any provision of Tex. Water Code § 26.121, or any rule, permit or order of the commission has occurred or is occurring within the jurisdiction of the City of Fort Worth, exclusive of its extraterritorial jurisdiction, the city, in the same manner as the commission, may have a suit instituted in a state district court through its city attorney for the injunctive relief or civil penalties, or both, against the person who committed or is committing or threatening to commit the violation. In any suit brought under this subsection (b), the commission is a necessary and indispensable party.

      (7)   Filing a suit for civil penalties or other remedies shall not be a bar against, or a prerequisite for, taking any other action against a violator.

(Ord. 12274, § 1, passed 11-28-1995; Ord. 14401, § 1, passed 11-7-2000; Ord. 23569-02-2019, § 2, passed 2-12-2019, eff. 2-23-2019)

§§ 12.5-124—12.5-135 RESERVED.