§ 56.50 ENFORCEMENT AND PENALTIES.
   (A)   The person responsible for any connection in violation of this subchapter shall immediately cause the illegal connection to be disconnected and redirected, if necessary, to the city's sanitary sewer system upon approval by the City Stormwater Engineer. The person shall provide to the city written confirmation, satisfactory to the City Stormwater Engineer, that the connection has been disconnected, and, if necessary, redirected to the city sanitary sewer.
   (B)   Any person responsible for illicit discharges or noncompliance with BMPs at industrial and/or construction sites, and who fails to correct any prohibited condition or discontinue any prohibited activity at the order of the City Stormwater Engineer shall be liable to the city for expenses incurred in abating pollution. This may include expenses incurred in testing, measuring, sampling, collecting, removing, treating, disposing of the polluting materials, preventing further noncompliance and/or illicit discharges and legal counsel fees of any such proceedings.
   (C)   The city may institute appropriate actions or proceedings by law or equity for the enforcement of this subchapter. Any court of competent jurisdiction shall have the right to issue restraining orders, temporary or permanent injunctions, and other appropriate forms of remedy or relief. Each day of noncompliance is considered a separate offense. Nothing herein contained shall prevent the city from taking such other lawful action as necessary to prevent or remedy any violation, including application for injunctive relief. Any of the following enforcement remedies and penalties, available to be applied independently or in a sequence deemed necessary, shall be to the city in response to violations of this subchapter. If the person, property or facility has or is required to have a stormwater discharge permit from IDEM, the city shall alert the appropriate state authorities of the violation.
      (1)   Notice of violation (NOV). Whenever designated city staff find that any person owning or occupying a premises has violated or is violating this subchapter or order issued hereunder, the enforcement official shall serve, by personal service or by registered or certified mail, upon the person a written NOV. Within 30 calendar days of the receipt of this notice, or shorter period as may be prescribed in the NOV, an explanation of the violation and a plan for the satisfactory correction and prevention thereof, which shall include specific required actions, shall be submitted to the city Stormwater Engineer or his or her designee. Submission of this plan shall, in no way, relieve liabilities for violations occurring before or after receipt of the NOV.
      (2)   Revocation of permit. The city Stormwater Engineer shall revoke and require the return of a permit or certificate by notifying the permit holder in writing, stating the reason for the revocation. Permits or certificates shall be revoked for any substantial departure from the approved application plans or specifications, refusal or failure to comply with the requirements of state or local law or for false statements or misrepresentations made in securing the permit or certificate. Any permit or certificate mistakenly issued in violation of any applicable state or local law may also be revoked.
      (3)   Stop work order. The City Stormwater Engineer may issue a stop work order and require that all construction cease except those actions that are necessary to eliminate the illicit discharge. Unacceptable or untimely actions to eliminate the illicit discharge shall be used as grounds to revoke permits for the construction site as described in division (C)(2) of this section.
      (4)   Compliance order. If any person shall violate the provisions of this subchapter, the city shall give notice to the owner or to any person in possession of the subject property ordering that all unlawful conditions existing thereupon be abated within a schedule defined from the date of the notice.
         (a)   The enforcement official shall have the authority to establish elements of a stormwater pollution prevention plan and to require any business to adopt and implement such a plan as may be reasonably necessary to fulfill the purposes of this chapter. The enforcement official may establish the requirements of BMPs for any premises.
         (b)   The notice and order may be given, provided that if in the opinion of the City Stormwater Engineer, the unlawful condition is such that it is of imminent danger or peril to the public, then the city shall, with or without notice, proceed to abate the same, and the cost thereof shall be charged against the property. The city, as described further in this division, may recover the cost of such actions from the property owner.
      (5)   Penalties. Any person that has been found to have been in violation of any provision of this subchapter, may be assessed a penalty not to exceed the amount presented in this division.
         (a)   The penalty shall increase by 25% of the previous penalty amount for every subsequent, but separate offense made by the same person. The penalty shall be in addition to other enforcement actions of this section.
         (b)   The penalty may be assessed for each day, beyond schedules applied in compliance orders or other schedules issued to the property owner or other person responsible, for unauthorized activity defined in this section.
         (c)   In determining the amount of the penalty the Board shall consider the following:
            1.   The degree and extent of the harm to the natural resources, to the public health or to the public or private property resulting from the violation;
            2.   The duration and gravity of the violation;
            3.   The effect on ground or surface water quality;
            4.   The cost of rectifying the damage;
            5.   The amount of money saved by noncompliance;
            6.   Whether the violation was committed willfully or intentionally;
            7.   The cumulative effect of other enforcement actions applied for the same offense;
            8.   The prior record of the violator in complying or failing to comply with the stormwater quality management program; and
            9.   The costs of enforcement to the city.
         (d)   The maximum penalties will be determined by the type of offense. This indicates the maximum that may be imposed for a first offense and does not reflect the increases described above for repeat offenses.
            1.   Development without permit: $2,500. To engage in any development, use, construction, remodeling or other activity of any nature upon land or improvements thereon, subject to the jurisdiction of this subchapter without all required permits, certificates or other forms of authorization as set forth in this subchapter.
            2.   Development inconsistent with permit: $2,500. To engage in any development, use, construction, remodeling or other activity of any nature in any way inconsistent with any approved plan, permit, certificate or other form of authorization granted for the activity.
            3.   Violation by act or omission: $2,500. To violate, by act or omission, any term, variance, modification, condition or qualification placed by the city or its agent departments upon any required permit, certificate, or other form of authorization of the use, development or other activity upon land or improvements thereon.
            4.   Illicit discharge: $2,500. Any person who is found to have improperly disposed of any substance defined as an illicit discharge, not an allowable discharge or causes the city to be in noncompliance with any applicable environmental permit.
            5.   Household products: $500. Any person who is found to have improperly disposed of any substance not included in Section 3(a) or 3(b) that was purchased over-the-counter for household use, in quantities considered normal for household purposes, which upon discharge to the MS4 or drainage network would have an adverse impact on water quality or cause the city to be in noncompliance with any applicable environmental permit.
         (e)   In the event there are penalties assessed by the state against the city caused by any person, the person shall be assessed the equivalent amount of penalty. This shall include, but is not limited to, penalties for improper disposal or illegal dumping, or illicit connection into the MS4.
      (6)   Administrative fee. Any person who undertakes any development activity requiring a stormwater management plan hereunder without first submitting the plan for review and approval shall pay to the city, in addition to any permit or inspection fee, an administrative fee of up to $2,500.
      (7)   Order to clean and abate/restore. Any violator may be required to clean and/or restore land to its condition prior to the violation.
      (8)   Cost recovery. If corrective action is not taken in the time specified, the city may take the corrective action. The cost of the corrective action, abatement and/or restoration shall be borne by the property owner. If the invoice is not paid within 90 calendar days, the enforcement official shall have the authority to place a lien upon and against the property. If the lien is not satisfied within 90 calendar days, the enforcement official is authorized to take all legal measures available to enforce the lien as a judgment, including, without limitation, enforcing the lien in an action brought for a money judgment, by delivery to the assessor or a special assessment against the property.
      (9)   Injunctions and/or proceedings at law or in equity.
         (a)   Any violation of this subchapter or of any condition, order, requirement or remedy adopted pursuant hereto may be restrained, corrected, abated, mandated or enjoined by other appropriate proceeding pursuant to state law.
         (b)   The Stormwater Board shall pursue, through a court of competent jurisdiction, any penalties that are not paid in full.
      (10)   Fee or utility credit revocation or adjustment. This enforcement tool is intended to be available or used if there are, at any time, provisions for a funding mechanism managed by the city. This enforcement tool permits that credits (reductions), adjustments (increases) or other measures to modify fees or utility charges may be revoked or added, in full or in part, if any provisions of this subchapter are violated.
      (11)   Civil actions. In addition to any other remedies provided in this section, any violation may be enforced by civil action brought by the city's Attorney. Monies recovered under this division shall be paid to the city to be used exclusively for costs associated with implementing or enforcing the provisions of this subchapter. In any such action, the city may seek, as appropriate, any or all of the following remedies:
         (a)   A temporary and/or permanent injunction;
         (b)   Assessment of the violator for the costs of any investigation, inspection or monitoring survey which lead to the establishment of the violation, and for the reasonable costs of preparing and bringing legal action under this division;
         (c)   Costs incurred in removing, correcting or terminating the adverse effects resulting from the violation; and
         (d)   Compensatory damages for loss or destruction to water quality, wildlife, fish and aquatic life.
      (12)   Emergency orders and abatements. The enforcement official may order the abatement of any discharge from any source to the stormwater conveyance system when, in the opinion of the enforcement official, the discharge causes or threatens to cause a condition that presents an imminent danger to the public health, safety or welfare, or the environment or a violation of a NPDES permit. In emergency situations where the property owner or other responsible party is unavailable and time constraints are such that service of a notice and order to abate cannot be effected without presenting an immediate danger to the public health, safety or welfare, or the environment or a violation of a NPDES permit, the city may perform or cause to be performed such work as shall be necessary to abate the threat or danger. The costs of any such abatement shall be borne by the property owner and shall be collectable in accordance with the provisions of this division.
      (13)   Violations deemed a public nuisance. In addition to the enforcement processes and penalties provided, any condition caused or permitted to exist in violation of any of the provisions of this subchapter is a threat to public health, safety, welfare and environment and is declared and deemed a nuisance, and may be abated by injunctive or other equitable relief as provided by state and local law.
      (14)   Remedies not exclusive. The remedies listed in this subchapter are not exclusive of any remedies available under any applicable federal, state or local law and the city may seek cumulative remedies.
      (15)   Citizen actions. Any citizen may commence a civil action, against any person who is alleged to be in violation of this subchapter, to the extent permitted by the Clean Water Act (33 U.S.C. § 1365), including an action against the city for an alleged failure to perform or administer any act or duty under this subchapter that is not discretionary. No action may be taken against the city if it has commenced and is diligently pursuing corrective or administrative actions, or if the city is prosecuting a civil or criminal action against an alleged violator in a court of appropriate authority or jurisdiction within the state.
(Ord. G-06-10, passed 4-3-2006)