(A) Administrative enforcement remedies.
(1) Notification of non-compliance. When the City Engineer or Storm Water Manager finds that any person has violated, or continues to violate, any provision of this chapter, or any order issued hereunder, the City Engineer or Storm Water Manager may serve upon that person a written notice of non-compliance. The person shall take corrective action to correct the issue of non-compliance.
(2) Cease and desist orders.
(a) When the City Engineer or Storm Water Manager finds that any person has violated, or continues to violate, any provision of this chapter, or any order issued hereunder, or that the person’s past violations are likely to recur, and that the person’s violation(s) have caused or contributed to an actual or threatened discharge to the MS4 or waters of the United States which reasonably appears to present an imminent or substantial endangerment to the health or welfare of persons or to the environment, the City Engineer or Storm Water Manager may issue an order to the violator directing it immediately to cease and desist all such violations and directing the violator to:
1. Immediately comply with all ordinance requirements; and
2. Take such appropriate preventive action as may be needed to properly address a continuing or threatened violation, including immediately halting operations and/or terminating the discharge.
(b) Any person notified of an emergency order directed to it under this division (A)(2) shall immediately comply and stop or eliminate its endangering discharge. In the event of a discharger’s failure to immediately comply voluntarily with the emergency order, the City Engineer or Storm Water Manager may take such steps as deemed necessary to prevent or minimize harm to the MS4 or waters of the United States, and/or endangerment to persons or to the environment, including immediate termination of a facility’s water supply, sewer connection or other municipal utility services. The City Engineer or Storm Water Manager may allow the person to recommence its discharge when it has demonstrated to the satisfaction of the City Engineer or Storm Water Manager that the period of endangerment has passed, unless further termination proceedings are initiated against the discharger under this chapter. A person that is responsible, in whole or in part, for any discharge presenting imminent endangerment shall submit a detailed written statement, describing the causes of the harmful discharge and the measures taken to prevent any future occurrence, to the City Engineer or Storm Water Manager within five days of receipt of the emergency order. Issuance of an emergency cease and desist order shall not be a bar against, or a prerequisite for, taking any other action against the violator.
(3) Red tags. Whenever the City Engineer or Storm Water Manager finds that any operator of a construction site has violated, or continues to violate, any provision of § 158.22 of this chapter, or any order issued thereunder, the City Engineer or Storm Water Manager may order that a “red tag” be issued to the operator, posted at the construction site and distributed to all city departments and divisions whose decisions affect any activity at the site. Unless express written exception is made by the City Engineer or Storm Water Manager, the “red tag” shall prohibit any further construction activity at the site and shall bar any further inspection or approval by the city associated with a building permit, grading permit, subdivision plat approval, site development plan approval or any other city approval necessary to commence or continue construction or to assume occupancy at the site. Issuance of a “red tag” order shall not be a bar against, or a prerequisite for, taking any other action against the violator.
(1998 Code, § 50-291)
(B) Judicial enforcement remedies.
(1) Civil remedies.
(a) Whenever it appears that a person has violated, or continues to violate, any provision of this chapter that relates to:
1. The preservation of public safety, relating to the materials or methods used in construction of any structure or improvement of real property;
2. The preservation of public health or to the fire safety of a building or other structure or improvement;
3. The establishment of criteria for land subdivision or construction of buildings, including street design;
4. Dangerously damaged or deteriorated structures or improvements;
5. Conditions caused by accumulations of refuse, vegetation or other matter that creates breeding and living places for insects and rodents; or
6. Point source effluent limitations or the discharge of a pollutant, other than from a non-point source, into the MS4.
(b) Pursuant to Tex. Local Gov’t Code § 54.016, the city may obtain against the owner or the operator of a facility a temporary or permanent injunction, as appropriate, that:
1. Prohibits any conduct that violates any provision of this chapter that relates to any matter specified in divisions (B)(1)(a)1. through (B)(1)(a)6. above; or
2. 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 divisions (B)(1)(a)1. through (B)(1)(a)6. above.
(2) Criminal penalties.
(a) Any person who violates any provision of this chapter shall be guilty of a misdemeanor offense and, upon conviction thereof, shall be punished by a fine of not less than $250, nor more than $2,000, for each violation. Each day in which any violation shall occur shall constitute a separate offense. Prosecution or conviction under this section shall not preclude any civil remedy or relief for a violation of this chapter.
(b) Any person who has knowingly made any false statement, representation or certification in any application, record, report, plan or other documentation filed, or required to be maintained, pursuant to this chapter, or any order issued hereunder, or who has falsified, tampered with or knowingly rendered inaccurate any monitoring device or method required under this chapter shall be guilty of a misdemeanor offence and, upon conviction thereof, shall be punished by a fine of not less than $250, nor more than $2,000, for each violation.
(c) In determining the amount of any fine imposed hereunder, the Court shall 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, the knowledge, intent, negligence or other state of mind of the violator, and any other factor as justice requires.
(3) Civil suit under the Texas Water Code. Whenever it appears that a violation or threat of violation of any provision of Tex. Water Code § 26.121, or any rule, permit or order of the State Commission on Environmental Quality, has occurred or is occurring within the jurisdiction of the city exclusive of its extraterritorial jurisdiction, the city, in the same manner as the State Commission on Environmental Quality, may have a suit instituted in a State District Court through its City Attorney for the injunctive relief or civil penalties or both authorized in Tex. Water Code § 26.123(a), against the person who committed or is committing or threatening to commit the violation. This power is exercised pursuant to Tex. Water Code § 26.124. In any suit brought by the city under this division (B), the Texas Commission on Environmental Quality is a necessary and indispensable party.
(4) Remedies non-exclusive. The remedies provided for in this chapter are not exclusive of any other remedies that the city may have under state or federal law or other city ordinances. The city may take any, all or any combination of these actions against a violator. The city is empowered to take more than one enforcement action against any violator. These actions may be taken concurrently.
(1998 Code, § 50-301) (Ord. 10-05, passed 3-17-2010)
(C) Supplemental enforcement action.
(1) Performance bonds. The City Engineer or Storm Water Manager may, by written notice, order any owner or operator of a source of storm water discharge associated with construction or industrial activity to file a satisfactory bond, payable to the city, in a sum not to exceed a value determined by the City Engineer or Storm Water Manager to be necessary to achieve consistent compliance with this chapter, any order issued hereunder, any required best management practice and/or any SWPPP provision, and/or to achieve final stabilization of the site. The city may deny approval of any building permit, grading permit, certificate of occupancy, subdivision plat, site development plan or any other city permit or approval necessary to commence or continue construction or any industrial activity at the site, or to assume occupancy, until such a performance bond has been filed.
(2) Liability insurance. The City Engineer or Storm Water Manager may, by written notice, order any owner or operator of a source of storm water discharge associated with construction or industrial activity to submit proof that it has obtained liability insurance, or other financial assurance, in an amount not to exceed a value determined by the City Engineer or Storm Water Manager, that is sufficient to remediation, restore and abate any damage to the MS4, the waters of the United States, or any other aspect of the environment that is caused by the discharge.
(3) Public nuisances. A violation of any provision of this chapter, or any order issued hereunder, is hereby declared a public nuisance and shall be corrected or abated as directed by the Storm Water Manager. Any person(s) creating a public nuisance shall be subject to the provisions of the city code governing such nuisances, including reimbursing the city for any costs incurred in removing, abating or remedying said nuisance.
(1998 Code, § 50-311) (Ord. 10-05, passed 3-17-2010)