A. All users of the City's system and facilities are subject to administrative or judicial enforcement actions brought by the City, the District, U.S. EPA, State of California Regional Water Quality Control Board, the County of Orange or City Attorney. Said actions may be taken pursuant to the authority and provisions of several laws, including but not limited to: (1) Federal Water Pollution Control Act, commonly known as the Clean Water Act (33 U.S.C.A. Section 1251 et seq.); (2) California Porter-Cologne Water Quality Control Act (California Water Code Section 13000 et seq.); (3) California Hazardous Waste Control Law (California Health & Safety Code Sections 25100 to 25250); (4) Resource Conservation and Recovery Act of 1976 (42 U.S.C.A Section 6901 et seq.); (5) California Government Code, Sections 54739-54740 and (6) this Chapter.
B. In the event the City is subject to the payment of fines or penalties pursuant to the legal authority and actions of other regulatory or enforcement agencies based on a violation of law or regulation or its permits, and said violation can be established by the City, as caused by the discharge of any user of the City's system which is in violation of any provision of the City's FOG Ordinance or the user's permit, the City shall be entitled to recover from the user all costs and expenses, including, but not limited to, the full amount of said fines or penalties to which it has been subjected.
C. Pursuant to the authority of California Government Code Sections 54739 - 54740, any person who violates any provision of this Chapter; any permit condition, prohibition or effluent limit; or any suspension or revocation order shall be liable civilly for a sum not to exceed $25,000.00 per violation for each day in which such violation occurs. Pursuant to the authority of the Clean Water Act, 33 U.S.C. Section 1251 et seq., any person who violates any provision of this Chapter, or any permit condition, prohibition, or effluent limit shall be liable civilly for a sum not to exceed $25,000.00 per violation for each day in which such violation occurs. The City Attorney of the City, upon request of the City Manager, shall petition the Superior Court to impose, assess, and recover such penalties, or such other penalties as the City may impose, assess, and recover pursuant to Federal and/or State legislative authorization.
D. Administrative Civil Penalties.
1. Pursuant to the authority of California Government Code Sections 54740.5 and 54740.6, the City may issue an administrative complaint to any person who violates:
a) any provision of this Chapter;
b) any permit condition, prohibition, or effluent limit; or
c) any suspension or revocation order.
2. The administrative complaint shall be served by personal delivery or certified mail on the person and shall inform the person that a hearing will be conducted, and shall specify a hearing date within sixty (60) days following service. The administrative complaint will allege the act or failure to act that constitutes the violation of the City's regulations, the provisions of law authorizing civil liability to be imposed, and the proposed civil penalty. The matter shall be heard by the City Manager or his/her designee. The person to whom an administrative complaint has been issued may waive the right to a hearing, in which case a hearing will not be conducted.
3. At the hearing, the person shall have an opportunity to respond to the allegations set forth in the administrative complaint by presenting written or oral evidence. The hearing shall be conducted in accordance with the procedures established by the City Manager and approved by the City Attorney.
4. If the City Manager designated a hearing officer, after the conclusion of the hearing, the hearing officer shall submit a written report to the City Manager setting forth a brief statement of the facts found to be true, a determination of the issues presented, conclusions, and a recommendation.
5. Upon receipt of the written report by the hearing officer, or conclusion of the hearing if the City Manager conducted the hearing, the City Manager shall make his/her determination and should he/she find that grounds exist for assessment of a civil penalty against the person, he/she shall issue his/her decision and order in writing within thirty (30) calendar days after the conclusion of the hearing.
6. If, after the hearing or appeal, if any, it is found that the person has violated reporting or discharge requirements, the City Manager or City Council may assess a civil penalty against that person. In determining the amount of the civil penalty, the City Manager or City Council may take into consideration all relevant circumstances, including but not limited to the extent of harm caused by the violation, the economic benefit derived through any non-compliance, the nature and persistence of the violation, the length of time over which the violation occurred, and corrective action, if any, attempted or taken by the person involved.
7. Civil penalties may be assessed as follows:
a) In an amount which shall not exceed two thousand dollars ($2,000.00) for each day for failing or refusing to furnish required reports;
b) In an amount which shall not exceed three thousand dollars ($3,000.00) for each day for failing or refusing to timely comply with any compliance schedules established by the City;
c) In an amount which shall not exceed five thousand dollars ($5,000.00) per violation for each day of discharge in violation of any waste discharge limit, permit condition, or requirement issued, reissued, or adopted by the City;
d) In any amount which does not exceed ten dollars ($10.00) per gallon for discharges in violation of any suspension, revocation, cease and desist order or other orders, or prohibition issued, reissued, or adopted by the City;
8. An order assessing administrative civil penalties issued by the City Manager shall be final in all respects on the thirty-first (31st) day after it is served on the person unless an appeal and request for hearing is filed with the City Clerk pursuant to Section 12.20.420 no later than the thirtieth (30th) day following such mailing. An order assessing administrative civil penalties issued by the City Council shall be final upon issuance.
9. Copies of the administrative order shall be served on the party served with the administrative complaint, either by personal service or by registered mail to the person at his/her/its business or residence address, and upon other persons who appeared at the hearing and requested a copy of the order.
10. Any person aggrieved by a final order issued by the City Council, after granting review of the order of the City Manager, may obtain review of the order of the City Council in the superior court, pursuant to Government Code Section 54740.6, by filing in the court a petition for writ of mandate within thirty (30) days following the service of a copy of the decision or order issued by the City Council.
11. Payment of any order setting administrative civil penalties shall be made within thirty (30) days of the date the order becomes final. The amount of any administrative civil penalties imposed shall constitute a debt to the City.
12. No administrative civil penalties shall be recoverable for any violation for which the City has recovered civil penalties through a judicial proceeding filed pursuant to Government Code Section 54740.
(Ord. 3051 § 1 (part), 2004).