(a) 
The provisions of this chapter together with any standards, requirements, and procedures promulgated under authority of this chapter or otherwise made subject to enforcement under this chapter, and all terms and conditions of any permit, control mechanism, directive, or compliance order issued under authority of this chapter, are subject to enforcement pursuant to and under authority of this chapter. The control authority is authorized to exercise all powers and authority granted pursuant to this chapter, including by way of example and not limitation the power to issue compliance orders, corrective action notices, and notices of violation, assess monetary penalties, approve voluntary correction agreements, and develop, promulgate, revise, and implement policies and procedures governing enforcement actions under this chapter. The city manager is further empowered to delegate enforcement authority under this chapter to such persons as may be determined by the city manager. Any such power and authority authorized pursuant to this chapter is in addition to the power and authority granted pursuant to the Fircrest Municipal Code and any other applicable state or federal law or regulation.
(b) 
Except as otherwise provided herein, the maximum monetary penalty that may be assessed for each violation per day or portion thereof, and each continuing day or portion thereof, shall not exceed $10,000. Monetary penalties shall be assessed in accordance with the most recent version of the environmental services enforcement response plan.
(c) 
Compliance with the requirements of this chapter is mandatory except as may be otherwise provided in this chapter. Except as otherwise provided herein, any act or omission by a responsible person in noncompliance with any duty, requirement, or obligation set forth in this chapter, set forth in any standard, requirement, or procedure promulgated under authority of this chapter or otherwise made subject to enforcement under this chapter, or set forth in a term or condition of any permit, authorization, control mechanism, directive, or compliance order issued under authority of this chapter, shall constitute a violation of this chapter and is subject to enforcement by the control authority.
(d) 
Violations of this chapter may include, by way of example, but are not limited to the following acts or omissions:
(1) 
Failure to accurately report the wastewater constituents and characteristics of a discharge;
(2) 
Failure to submit any report or notices required by this chapter;
(3) 
Failure to report known or reasonably anticipated changes in wastewater constituents or characteristics, including increased flows, prior to the changed discharge;
(4) 
Misrepresenting or intentionally failing to disclose all relevant facts in an industrial wastewater discharge permit application, report, or other submittal required under this chapter;
(5) 
Falsifying self-monitoring reports;
(6) 
Tampering with monitoring equipment;
(7) 
Unreasonably withholding consent for access by authorized control authority representatives to conduct a compliance inspection and other activities described in this chapter;
(8) 
Violating any applicable pretreatment standard, pretreatment requirement, or local limit; and
(9) 
Violating any provision of this chapter, including the terms of a permit, order, authorization or other control mechanism issued under the authority of this chapter.
(e) 
Policies and procedures governing enforcement of violations of this chapter and assessment of monetary penalties are set forth in the enforcement response plan, a copy of which shall be on file with the city and made available to the public.
(f) 
Any responsible person who willfully violates any provision of this chapter, or any permit, order, control mechanism, or other written authorization or directive issued by the control authority thereunder shall, upon conviction, be guilty of a gross misdemeanor punishable by a fine of not more than $10,000, or by imprisonment in jail for up to 365 days, or both. Each day upon which a willful violation of this chapter, or any permit, order, control mechanism or other written authorization or directive issued by the city thereunder, occurs may be deemed a separate and additional violation.
(g) 
Any person who knowingly and falsely makes, completes, or alters a written instrument required to be submitted to the control authority pursuant to this chapter, or requirement or procedure promulgated under this chapter, or a term or condition of any permit, control mechanism, directive, or compliance order issued under authority of this chapter, shall be guilty of a gross misdemeanor and subject to a fine of not more than $5,000 or by imprisonment in jail for up to 365 days, or both. Proof of intent to defraud or injure is not required.
(h) 
Persons, whether inside or outside the city, that discharge substances in violation of this chapter to the municipal wastewater system, including but not limited to persons that cause pass through or interference, shall be liable to pay any supplemental fees the control authority incurs to respond to such violation in accordance with the liability for supplemental fees section set forth in subsection (m) of this section and FMC § 20.30.1250.
(i) 
Joint and Several Responsibility and Liability. Responsibility for violations subject to enforcement under this chapter is joint and several, and the city is not prohibited from taking action against a person where other persons may also be potentially responsible persons, nor is the city required to take action against all potentially responsible persons.
(j) 
Presumption. Except as may be otherwise provided by law, proof that a violation exists or existed on privately owned (nongovernmental) property shall constitute prima facie evidence that each owner of the property is a responsible person. However, this presumption shall not relieve or prevent enforcement against any other person who may also be a responsible person.
(k) 
Prohibited Acts Include Causing and Permitting. Whenever any act or omission constitutes a violation, such act or omission includes causing, allowing, permitting, aiding, abetting, suffering, or concealing the fact of such act or omission.
(l) 
Separate and Continuing Offense. Every act or omission which constitutes a violation shall constitute a separate violation for each and every day during any portion of which the act or omission constituting the violation is committed, continued, allowed, abetted, suffered, or permitted. A violation continues to exist until abated, corrected, or remedied.
(m) 
Liability for Supplemental Fees. Persons, whether inside or outside the city, that discharge substances in violation of this chapter to the POTW, including but not limited to persons that cause pass through or interference, shall be liable to pay any supplemental fees the control authority incurs to respond to such violation. Liability for supplemental fees under this section shall also apply to any person responsible for discharging a substance in violation of this chapter to the POTW, regardless whether they own the property from which the prohibited discharge originates. Assessment of supplemental fees shall be in addition to:
(1) 
Any enforcement action to address a violation of this chapter;
(2) 
Any cost recovery remedy available to the control authority under state and federal environmental laws and regulations; and
(3) 
Any other remedy available at law or in equity to address a violation of this chapter.
Any supplemental fees assessed shall become due and payable to the control authority within 30 days of receipt of such assessment. If supplemental fees are appealed and affirmed in whole or in part, such fees shall become due and payable within 30 calendar days of receipt of a final decision by the hearing examiner or a court. The control authority may pursue collection of nonpayment of supplemental fees by any lawful means authorized, including referral to a collection agency.
(Ord. 1685 § 3 (Exh. A), 2022)
(a) 
Methods of Service. For purposes of this chapter, the methods of service of any documents related to enforcement, such as notices of civil violation and compliance orders (hereinafter "document"), shall be by mailing, personal service, posting, or publication.
(b) 
When First-Class Mail Deemed Service. Any correction notice, notice of civil violation, notice of hearing, compliance order, or other code enforcement document shall be deemed legally served upon a party by mailing, unless another method of service is expressly required in a particular subsection of this chapter, state law, or court rule.
(Ord. 1685 § 3 (Exh. A), 2022)
(a) 
Civil Violation. The control authority may issue a notice of civil violation when there is reasonable cause to believe that there is or has been a violation.
(b) 
Content of Notice of Civil Violation. The notice of civil violation shall set forth and contain:
(1) 
The name and last known address of the responsible person;
(2) 
The name and business address and telephone number of the control authority issuing the notice of civil violation;
(3) 
The street address or a description sufficient for identification of the building, structure, premises, or land upon or within which the violation has occurred or is occurring;
(4) 
A description of the nature, extent, and time of the violation and a reference to the regulation that has been violated;
(5) 
If a monetary penalty is imposed, a statement setting forth the monetary penalty(ies) imposed and each violation or violations that are subject to such monetary penalty(ies);
(6) 
If the notice of civil violation is issued in conjunction or combined with a compliance order, and the violation is continuing in nature and will accrue daily monetary penalties until the violation is corrected, a statement (A) setting forth the amount of the daily monetary penalty for each such continuing violation, (B) that the violation is continuing in nature, and (C) that daily monetary penalties will accrue until the violation is corrected as set forth in the compliance order;
(7) 
If the notice of civil violation is combined with a compliance order, the notice of violation shall include the content required pursuant to FMC § 20.30.1240(b) for issuance of a compliance order;
(8) 
A statement that the person to whom the notice of civil violation is issued may appeal the notice of civil violation as provided in this chapter;
(9) 
A statement that a notice of civil violation issued pursuant to this section represents a determination that the violation/violations identified in the notice has/have been committed and that this determination is final and conclusive unless appealed as provided in this chapter; and
(10) 
Any additional information that may be required under the regulation that is alleged to have been violated.
(c) 
Service. Except as provided herein, service of a notice of civil violation shall be by mailing or by personal service. If an address for mailed service cannot be ascertained and if personal service is not accomplished after reasonable effort, service shall be accomplished by posting a copy of the order conspicuously on the affected building, structure, premises, or land. If service by posting is ineffective or cannot be lawfully accomplished, service shall be accomplished by publication.
(d) 
Effect of Notice of Civil Violation. A notice of civil violation issued pursuant to this section represents a determination that the violation/violations identified in the notice of civil violation has/have been committed. This determination is final and conclusive as to the violation or violations set forth in the notice of violation, unless a timely appeal is filed as provided in this chapter. Nothing herein is intended to preclude timely appeal of a separate or subsequent compliance order, notice of civil violation, notice of infraction, or imposition of criminal penalties related to the same or continuing violation or violations, to the extent an appeal may be available.
(e) 
Continued Duty to Correct. Payment of a monetary penalty imposed pursuant to this chapter does not relieve a person of the duty to correct the violation as ordered by the control authority.
(f) 
Monetary Penalty. Unless a different monetary penalty is specified in this chapter, the maximum monetary penalty for each violation per day or portion thereof, and each continuing day or portion thereof, shall be an amount up to $10,000 per day.
(g) 
Other Action. In addition to the issuance of the notice of civil violation, the city may take other enforcement action available at law or in equity, including, by way of example and not limitation, issuance of a notice of civil infraction, seeking injunctive or declaratory relief, seeking an order of abatement, taking action to seek imposition of criminal penalties, and, where applicable, rescission as set forth in RCW 90.58.140. The city may also issue a notice of civil violation in conjunction with a compliance order.
(h) 
Collection of Monetary Penalty. The monetary penalty constitutes a personal obligation of the person to whom the notice of civil violation is directed. Any monetary penalty assessed shall be immediately due and payable and must be paid to the city within 10 calendar days from the date the notice of civil violation becomes final and nonappealable. Any monetary penalties that accrue for ongoing violations after the date the notice of civil violation becomes final and nonappealable must be paid within 10 calendar days from the date the penalty(ies) have accrued. The city attorney is authorized to take appropriate action to collect the monetary penalty when past due and owing.
(i) 
Application for Remission or Mitigation. When remission or mitigation of the monetary penalty is authorized under the state or federal law, any person incurring a monetary penalty for a civil violation may, within 10 days of service of the notice of violation, apply in writing to the control authority for remission or mitigation of the monetary penalty. The control authority shall issue a decision on the application within 15 business days following receipt of such application. Upon timely receipt of a complete application for remission or mitigation, the responsible public official, or designee, shall consider the application, together with any information the responsible public official, or designee, determines is relevant, and may remit or mitigate the penalty only upon a finding by a preponderance of the evidence that applicant has demonstrated extraordinary circumstances, such as the presence of information or factors not considered in setting the original monetary penalty. When a monetary penalty is imposed jointly by the Department of Ecology and the city, the penalty may be remitted or mitigated only upon such terms as both the Department of Ecology and the city agree.
(j) 
Appeal. A notice of civil violation may be appealed to the hearing examiner pursuant to the procedures set forth in this chapter for appeal of a notice of civil violation. In the event that a notice of civil violation is combined with a compliance order, the compliance order is subject to appeal pursuant to FMC § 20.30.1230(l) and may be subject to expedited informal review pursuant to FMC § 20.30.1240. Accrual and payment of the monetary penalty imposed shall be stayed during the pendency of any administrative appeal of the violation for which such monetary penalties have been imposed.
(Ord. 1685 § 3 (Exh. A), 2022)
(a) 
General. The control authority may issue a compliance order when there is reasonable cause to believe that there is or has been a violation or that failure to take action or to refrain from taking action will result in a violation. The compliance order is remedial in nature and intended to prevent future violations, protect persons and property from injury or the imminent threat of injury, terminate ongoing violations, and bring the activities, omissions, use, property, and structures that are the subject of the order into compliance, as nearly as practicable, within applicable standards and requirements of the applicable regulation(s).
(b) 
Content of Compliance Order. The order shall set forth and contain:
(1) 
The name and last known address of the responsible person(s);
(2) 
The name and business address and telephone number of the control authority issuing the compliance order;
(3) 
The street address or a description sufficient for identification of the building, structure, premises, or land upon or within which the violation will occur, has occurred, or is occurring;
(4) 
A description of the nature, extent, and time of the violation and a reference to the regulation that has been or may be violated;
(5) 
An order that the act or omission or use causing or leading to a violation or a potential violation shall immediately cease and desist, and/or, in appropriate cases, an order to take specific corrective action in compliance with the FMC immediately or within a specific and reasonable time, which corrective action may include, but is not limited to, abatement, remediation, correction, and/or mitigation of the site and other property damaged;
(6) 
A statement that any act or omission contrary to a provision of the compliance order constitutes a civil violation and is subject to enforcement under this chapter;
(7) 
A statement that the person to whom the compliance order is issued may appeal the compliance order as provided in this chapter;
(8) 
If a stop-work or stop-use order is issued, a statement that the person to whom the compliance order is issued may, in addition to the right to appeal the order, seek expedited informal review as provided in this chapter. The statement shall identify the public official vested with authority to review the stop-work or stop-use order and the phone number, name, and title of the person authorized to initiate the process for informal expedited review;
(9) 
A statement that the compliance order is final and conclusive unless appealed;
(10) 
If the compliance order is combined with a notice of civil violation, the compliance order shall include the content required pursuant to FMC § 20.30.1220(b) for issuance of a notice of violation; and
(11) 
Any additional information that may be required to be included in the compliance order under the regulation that is alleged to have been violated.
(c) 
Service. Except as provided herein, service of a compliance order shall be by mailing or by personal service. If an address for mailed service cannot be ascertained and if personal service is not accomplished after reasonable efforts, service shall be accomplished by posting a copy of the order conspicuously on the affected building, structure, premises, or land. If service by posting is ineffective or cannot be lawfully accomplished, service shall be accomplished by publication.
(d) 
Effective Date. A compliance order issued under this section shall become effective immediately upon service of the order upon the person to whom it is directed.
(e) 
Effect of Compliance Order. A compliance order represents notice to the responsible person of a determination that the violation/violations identified in the compliance order has/have been committed, or that there is reasonable cause to believe that a violation will occur, and represents a determination that corrective action as described in the compliance order, or cessation of certain action identified in the order, is required to abate, correct, mitigate, remedy, or prevent the violation. These determinations are final and conclusive unless appealed as provided in this chapter; provided, that nothing herein is intended to preclude timely appeal of a separate or subsequent order, notice of civil violation, notice of infraction, or imposition of criminal penalties related to the same or continuing violation or violations, to the extent an appeal may be available.
(f) 
Extension. Upon written request received prior to the expiration of the correction date or time, the control authority may extend the date set for correction for good cause or in order to accommodate a voluntary correction agreement. The control authority may consider substantial completion of the necessary correction or unforeseeable circumstances which render completion impossible or impracticable by the completion date established as a good cause.
(g) 
Stop-Work Order – Stop-Use Order. Whenever the control authority finds reasonable cause to believe that a violation would, if the violation continued, (1) result in irreparable harm, (2) exacerbate injury already caused to any person or property, (3) result in damage or injury to wetlands or critical areas, (4) materially impair the code enforcement officer's ability to secure compliance, (5) materially impair the responsible persons' ability to correct the violation, or (6) cause or contribute to an emergency, the control authority may issue a stop-work or stop-use order, or issue a compliance order that includes a stop-work or stop-use order. The stop-work and stop-use order shall be deemed served and effective upon posting of the order; provided, that nothing herein shall preclude service in person, by mail, or by publication.
(h) 
Violation – Unlawful. When a compliance order has been issued, posted, and/or served pursuant to this section, it is unlawful for any person to whom the order is directed or any person with actual or constructive knowledge of the order to conduct any activity or perform any work prohibited by the terms of the order, even if the order has been appealed, until the enforcement officer has removed the copy of the order, if posted, and issued written authorization for the activity or work to be resumed.
(i) 
Removal of Compliance Order – Violation. It shall be unlawful to remove a compliance order posted in conformity with the requirements of this chapter without the prior authorization of a control authority, responsible public official of the city, the city hearing examiner, or an order of a court with jurisdiction. A violation of the provisions of this subsection shall constitute a misdemeanor.
(j) 
Compliance – Violation. It is unlawful to fail to comply with the terms and conditions of the compliance order. Failure to comply with a compliance order can result in enforcement actions, including, but not limited to, the issuance of a notice of civil violation, issuance of a civil infraction, and imposition of criminal penalties.
(k) 
Other Action. In addition to the issuance of the compliance order, the city may take other enforcement action available at law or in equity including, by way of example and not limitation, issuance of a notice of civil violation and penalties, issuance of a civil infraction, seeking injunctive or declaratory relief, imposition of criminal penalties, modification or revocation of the project permit or approval, seeking an order of abatement, and rescission as set forth in RCW 90.58.140. The city may also issue a notice of civil violation concurrent with a compliance order.
(l) 
Appeal – Exhaustion. A compliance order may be appealed to the hearing examiner pursuant to the procedures set forth this chapter for appeal of a compliance order. In the event that the FMC provides that the applicant may request administrative review, remission, or mitigation of the compliance order by a public official, applicant shall exhaust such administrative remedies prior to filing an appeal to the hearing examiner; provided, that expedited informal review pursuant to FMC § 20.30.1240 is not considered an administrative remedy for purposes of this exhaustion requirement. In the event that a notice of civil violation is combined with the compliance order, payment of the monetary penalty imposed shall be stayed during the pendency of any administrative appeal. In the event of a notice of appeal of an order revoking or rescinding a project permit or approval, the order shall be stayed during the pendency of any administrative appeal.
(Ord. 1685 § 3 (Exh. A), 2022)
(a) 
Purpose. Expedited informal review is an informal process that is intended to provide an opportunity for the person to whom the stop-work or stop-use order is issued to seek immediate review to address any claimed errors in the determination by the control authority to issue such an order.
(b) 
Who May Seek Review. The person to whom the stop-work or stop-use order is directed, or an authorized representative of that person, may seek expedited informal review of the order by a public official vested with authority to review and uphold or terminate the stop-work or stop-use order.
(c) 
Request for Review. The person seeking expedited informal review may request review within 10 days of service of the order by contacting, during normal city business hours, the person identified in the order as the person authorized to initiate the review, requesting initiation of expedited informal review and providing a phone number at which the requesting person can be reached during business hours.
(d) 
Review. The public official of the control authority designated to conduct the review, or designee, shall provide a reasonable opportunity for the person requesting review to submit in writing or orally, or both, a statement describing the error(s) of law and error(s) of fact, and any other supporting records or documents or information in any form, establishing why the stop-work or stop-use order was issued in error. The public official may consult with any person(s) who the public official determines may have relevant information, and take into consideration any relevant records or documents or information in any form.
(e) 
Decision. The public official shall, within three business days following the date of the request for review, notify the person requesting review of the public official's decision to either terminate or uphold the issuance of the order; provided, that the public official may extend this time period for good cause.
(f) 
Decision Not Subject to Administrative Appeal. The decision of the public official shall not be subject to appeal to the hearing examiner.
(g) 
Effect of Filing an Appeal. Submitting a request for expedited informal review will not impair the right to appeal the stop-work or stop-use order pursuant to this chapter, and will not operate to toll the time period for filing such an appeal. A person appealing a stop-work or stop-use order is not required to request expedited informal review as a condition of filing an appeal. The filing of an appeal shall not operate to deprive the public official of jurisdiction to conduct an expedited informal review that has been timely requested.
(Ord. 1685 § 3 (Exh. A), 2022)
(a) 
Persons, whether inside or outside the city, that discharge substances in violation of this chapter to the municipal wastewater system including, but not limited to, persons that cause pass through or interference, shall be liable to pay any supplemental fees the city or control authority incurs to respond to such violation. Liability for supplemental fees under this section shall also apply to any person responsible for discharging a substance in violation of this chapter to the municipal wastewater system, regardless whether they own the property from which the prohibited discharge originates. Assessment of supplemental fees shall be in addition to:
(1) 
Any enforcement action authorized by this chapter;
(2) 
Any cost recovery remedy available to the control authority under state and federal environmental laws and regulations; and
(3) 
Any other remedy available at law or in equity to address a violation of this chapter.
(b) 
Any supplemental fees assessed shall become due and payable to the city, or the control authority, within 30 days of receipt of such assessment. If supplemental fees are appealed and affirmed in whole or in part, such fees shall become due and payable within 30 calendar days of receipt of a final decision by the hearing examiner or a court. The city or control authority may pursue collection of nonpayment of supplemental fees by any lawful means authorized, including referral to a collection agency.
(Ord. 1685 § 3 (Exh. A), 2022)
(a) 
As used in this section:
"Agent" means any director, officer, or employee of a corporation, or any other person who is authorized to act on behalf of the corporation.
"High managerial agent" means an officer or director of a corporation or any other agent in a position of comparable authority with respect to the formulation of corporate policy or the supervision in a managerial capacity of subordinate employees.
(b) 
A corporation is strictly liable for the acts or omissions of its agents that constitute a civil violation.
(c) 
A corporation is guilty of a criminal offense when:
(1) 
The act or omission constituting the offense consists of an omission to discharge a specific duty of performance imposed on corporations by law; or
(2) 
The act or omission constituting the offense is engaged in, authorized, solicited, requested, commanded, or tolerated by the board of directors or by a high managerial agent acting within the scope of the agent's employment and on behalf of the corporation; or
(3) 
The act or omission constituting the offense is engaged in by an agent of the corporation, other than a high managerial agent, while acting within the scope of the agent's employment and in behalf of the corporation and (A) the offense is a gross misdemeanor or misdemeanor, or (B) the offense is one defined by the this chapter which clearly indicates an intent to impose such criminal liability on a corporation.
(d) 
A person is civilly liable for an act or omission constituting a violation which the person performs or causes to be performed in the name of or on behalf of a corporation to the same extent as if such conduct were performed in the person's own name or behalf.
(e) 
A person is criminally liable for an act or omission constituting a criminal offense which the person performs or causes to be performed in the name of or on behalf of a corporation to the same extent as if such conduct were performed in the person's own name or behalf.
(f) 
Whenever a duty to act is imposed by law upon a corporation, any agent of the corporation who knows the agent has or shares primary responsibility for the discharge of the duty is criminally liable for a reckless or, if a high managerial agent, criminally negligent omission to perform the required act to the same extent as if the duty were by law imposed directly upon such agent.
(Ord. 1685 § 3 (Exh. A), 2022)
(a) 
Suspension of Service – Emergency. In addition to any other authority set forth in this chapter, the control authority may, pursuant to a stop-use order, immediately suspend an industrial user's actual or threatened discharge to the municipal wastewater system whenever the control authority has reasonable cause to believe that an actual or threatened discharge, or other violation of this chapter, either:
(1) 
Presents an imminent threat or substantial danger to the health and welfare of persons or the environment; or
(2) 
Presents an imminent threat to, or does cause, pass through or interference.
Depending on the emergent circumstances, the control authority may provide either verbal or written notice to suspend an industrial user's actual or threatened discharge.
(b) 
Suspension of Service – Other Violations. The control authority may, pursuant to a stop-use order, suspend wastewater services at a premises where a connection to the municipal wastewater system has been made in violation of this chapter, the control authority's NPDES permit, or any authorization, control mechanism, directive or compliance order issued under authority of this chapter.
(c) 
Suspension of Service – Access. Unreasonable refusal to allow control authority representatives to access a premises pursuant to FMC § 20.30.900 (Right of entry – Inspection and sampling) to determine compliance with this chapter may, pursuant to a stop-use order, result in the suspension of discharges to the municipal wastewater system.
(d) 
Any industrial user receiving a notice to suspend its discharge shall suspend discharging to the municipal wastewater system in accordance with the requirements contained in the notice. If an industrial user fails to immediately comply with the terms of a notice to suspend an actual or threatened discharge, the control authority may take steps it deems reasonably necessary to protect the health and welfare of persons, the environment or the POTW, which may include, but is not limited to, severing the industrial user's sanitary sewer connection at any accessible location. As a condition of allowing the industrial user to recommence its discharge, the control authority may require the industrial user to submit a written statement describing the corrective action it has implemented to prevent discharges that presented an imminent danger or threat to the health and welfare of persons, the environment, or threatened to interfere with the operation of the POTW.
(e) 
Nothing in this section prevents the control authority from taking any other enforcement action authorized by this chapter or otherwise available at law.
(Ord. 1685 § 3 (Exh. A), 2022)
(a) 
Appeal – Request for Hearing.
(1) 
Review of Civil Violation. A person to whom a notice of civil violation is issued pursuant to this chapter ("appellant") may appeal such notice to the hearing examiner within 10 calendar days after the date the notice of civil violation is served as determined in accordance with this chapter.
(2) 
Review of Compliance Order. A person to whom a compliance order is issued pursuant to this chapter ("appellant") may appeal such order to the hearing examiner within 10 calendar days after the date the notice of compliance order is served as determined in accordance with this chapter. A request for expedited informal review shall not operate to toll the time period for filing an appeal of a stop-work or stop-use order.
(b) 
Appeal – Filing.
(1) 
Filing – Where. A notice of appeal shall be filed in writing with the hearing examiner during regular business hours by the appellant, or, in the case of a corporation, a duly authorized agent of the appellant. The hearing examiner may adopt rules consistent with this chapter allowing electronic filing of a notice of appeal.
(2) 
Weekends – Holidays. If the final day to file a notice of appeal is on a weekend or holiday, the appeal will be timely if filed before the close of business on the next business day following the holiday or weekend. For purposes of this section, "holiday" shall mean those weekdays during which the city offices are closed for established holidays.
(3) 
Jurisdiction of Hearing Examiner. The hearing examiner shall not have jurisdiction to hear an appeal for which the notice of appeal is not filed within the time periods set forth in this chapter.
(4) 
Remission – Mitigation. A person to whom a notice of civil violation or compliance order has been issued, which civil violation or compliance order is subject to an application for mitigation or remission which application has been timely filed under the applicable provisions of the FMC, may appeal the underlying notice of violation and/or compliance order, and the decision on the application for mitigation or remission, by filing an appeal within 10 calendar days after the date of service of the decision on the application for mitigation or remission.
(c) 
Content of Notice – Filing.
(1) 
Notice of Appeal of Civil Violation. The written notice of appeal of a civil violation and request for hearing shall identify with specificity (A) the name of the appellant, (B) the mailing address at which the appellant may receive notices related to the hearing, (C) the notice of civil violation sought to be appealed, (D) the violation or violations being appealed, and (E) a statement identifying the relief the appellant is seeking from the hearing examiner. If the notice of civil violation is issued in conjunction with a compliance order and the appellant intends to appeal the compliance order, the notice of appeal and request for hearing must also comply with subsection (c)(2) of this section. The notice of appeal shall be signed by the appellant or a duly authorized representative of the appellant, and, in the case of a corporation, a duly authorized agent of the appellant.
(2) 
Compliance Order. The written notice of appeal of a compliance order and request for hearing shall identify with specificity (A) the name of the appellant, (B) the mailing address at which the appellant may receive notices related to the hearing, (C) the compliance order sought to be appealed, (D) the parts of the order that the appellant alleges are in error, (E) a concise statement of each alleged error(s) of law and/or error(s) of fact that form the basis for the appeal, (F) a concise statement of facts upon which the appellant relies to sustain the statement of error, and (G) a statement identifying the relief the appellant is seeking from the hearing examiner. If the compliance order is issued in conjunction with a notice of civil violation and the appellant intends to appeal the notice of violation, the notice of appeal and request for hearing must also comply with subsection (c)(1) of this section. The notice of appeal shall be signed by the appellant, or a duly authorized representative of the appellant, and, in the case of a corporation, a duly authorized agent of the appellant. The filing of such an appeal shall not alter the time for compliance with the compliance order unless modified by the hearing examiner following a hearing.
(d) 
Hearing to Be Scheduled. The office of the hearing examiner will determine and schedule the time and date for a hearing before the hearing examiner. Extensions may be granted by the hearing examiner for good cause shown or when there is mutual agreement of the parties or to accommodate the schedule of the hearing examiner.
(e) 
Hearing – Procedure. The hearing examiner shall conduct an adjudicative hearing on the appeal pursuant to the rules of procedure of the hearing examiner. The city and the appellant shall be the parties in the hearing and each party may call witnesses and may be represented by legal counsel, may present testimony, confront and cross-examine adverse witnesses, and submit evidence and information in accordance with procedures prescribed by the hearing examiner. The hearing examiner shall give substantial weight to any discretionary decision, or any construction of the FMC or related regulation, rendered by the compliance officer or responsible public official. The written administrative record underlying the contested action or determination may be submitted to the hearing examiner and made a part of the record on appeal.
(f) 
Burden of Proof. The city shall have the burden of proof to demonstrate by a preponderance of the evidence that the violation or violations that are the subject of the appeal was or were committed and that the appellant is the responsible person. In the case of an appeal of a compliance order, the appellant shall have the burden of proof to demonstrate by a preponderance of the evidence that the compliance order was imposed, issued, or determined in error.
(g) 
Proceedings.
(1) 
Prehearing Conference. A prehearing conference may be required by the hearing examiner.
(2) 
Conduct of Proceedings. All hearings shall be conducted in accordance with rules promulgated by the hearing examiner. The hearing examiner shall have the authority to issue subpoenas compelling the appearance of witnesses and the production of documents and shall, further, have full authority to rule on all procedural matters, objections, and motions.
(h) 
Stay of Action Pending Appeal. An appellant may request the hearing examiner to stay or suspend an action by the city to implement the decision under review pending the outcome of the administrative appeal. The request must set forth a statement of grounds for the stay and the factual basis for the request. The hearing examiner may grant a stay only if the hearing examiner finds that:
(1) 
The party requesting the stay is likely to prevail on the merits;
(2) 
Without the stay, the party requesting it will suffer irreparable harm;
(3) 
The grant of a stay will not substantially harm other parties to the proceedings;
(4) 
The grant of a stay will not cause or contribute to an imminent threat of harm to persons or property; and
(5) 
The request for the stay is timely in light of the circumstances of the case.
The hearing examiner may grant the request for a stay upon such terms and conditions, including the filing of security, as are necessary to prevent harm to other parties by the stay.
(i) 
Determination. The hearing examiner shall, as to each violation subject to appeal, determine whether the city has established by a preponderance of the evidence that the violation was committed and that the appellant is the responsible person, and shall affirm or vacate the city's decision regarding such violation or violations.
The hearing examiner shall, as to each compliance order subject to appeal, determine whether the appellant has established by a preponderance of the evidence that the order was imposed, issued, or determined in error based upon one or more of the following:
(1) 
The order was imposed, issued, or determined in excess of the authority or jurisdiction of the city or control authority; or
(2) 
The order was imposed, issued, or determined upon unlawful procedure; or
(3) 
The order was affected by material error of law or fact; or
(4) 
The order was clearly erroneous in view of the entire record as submitted; or
(5) 
The order was arbitrary or capricious.
The hearing examiner may, as to each compliance order subject to appeal, (A) affirm the decision of the city, (B) remand the matter back to the city for further action consistent with the decision of the hearing examiner, (C) reverse the order or determination if the substantial rights of the appellant may have been prejudiced because the order or determination was in violation of one or more factors set forth above, or (D) modify the order or decision to the extent necessary to correct the error.
(j) 
Issue Order. The hearing examiner shall issue an order to the parties, which order shall contain the following information:
(1) 
The decision regarding the matter being appealed, including findings of fact and conclusions based thereon in support of the decision; and/or
(2) 
The required corrective action; and/or
(3) 
The date and time by which the correction must be completed; and/or
(4) 
The monetary penalties assessed; and/or
(5) 
A remand and order for further action.
(k) 
Notice of Decision. The hearing examiner shall give notice of the decision to the appellant and the city within a reasonable period of time following the hearing. This decision shall be considered the final decision in the absence of a motion for reconsideration.
(l) 
Failure to Appear. If the appellant fails to appear at the scheduled hearing, the hearing examiner shall enter an order of dismissal of the appeal, unless good cause is found to extend the hearing date or the city agrees to extend the hearing date, or the hearing examiner finds that notice of the hearing was not provided to the appellant.
(m) 
Failure to Comply. It shall be unlawful to fail to comply with a final nonappealable decision of the hearing examiner. For purposes of this section, "nonappealable" means that all administrative and judicial appeals have been exhausted. Violations of a final nonappealable decision of the hearing examiner are subject to enforcement pursuant to this chapter. Willful noncompliance with a final nonappealable decision of the hearing examiner shall constitute a misdemeanor and shall be punished by a fine of up to $1,000 or 90 days in jail, or by both such fine and imprisonment. Each day that a violation continues shall constitute a separate and continuing offense.
(n) 
Reconsideration. An appellant may seek reconsideration of the decision of the hearing examiner by filing a motion with the office of the hearing examiner requesting reconsideration of a decision entered by the examiner. A motion for reconsideration must be in writing and must set forth the alleged errors of procedure, fact, or law and must be filed in the office of the hearing examiner within 14 calendar days of the issuance of the examiner's decision/recommendation, not counting the day of issuance of the decision/recommendation. If the last day for filing the motion for reconsideration falls on a weekend day or a holiday, the last day for filing shall be the next working day. The requirements set forth herein regarding the time limits for filing of motions for reconsideration and contents of such motions are jurisdictional. Accordingly, motions for reconsideration that are not timely filed with the office of the hearing examiner or do not set forth the alleged errors shall be dismissed by the examiner. It shall be within the sole discretion of the examiner to determine whether an opportunity shall be given to other parties for response to a motion for reconsideration. The examiner, after a review of the matter, shall take such further action as the hearing examiner deems appropriate, which may include the issuance of a revised decision/recommendation. If a timely motion is filed meeting the jurisdictional requirements for reconsideration of the decision of the hearing examiner, the decision of the hearing examiner shall not be final until the decision of the hearing examiner upon the motion for reconsideration is served personally or by mailing.
(o) 
Final Decision. A party aggrieved by a final decision of the hearing examiner may appeal or seek review of the decision in accordance with applicable law. Unless another period of time applies under applicable law or court rule, any appeal of the decision of the hearing examiner must be filed within 21 calendar days from the date the hearing examiner's final decision was served, personally or by mailing.
(p) 
Subsequent Repeat Violation – Failure to Abate – Misdemeanor. The commission of a subsequent violation or the failure or refusal to take corrective action pursuant to a decision of the hearing examiner after receipt of written notice of such decision shall constitute a misdemeanor. The city attorney, or designee, shall have discretionary authority to file a subsequent violation as either a civil violation pursuant to this chapter, or a civil infraction, or a misdemeanor.
(Ord. 1685 § 3 (Exh. A), 2022)
The enforcement provisions in this chapter are not exclusive remedies. The city may take any, all, or any combination of the enforcement actions described in this chapter against an industrial user in violation of this chapter. Furthermore, the city may pursue any other available remedies that exist in law or equity, including but not limited to injunctive relief against an industrial user in violation of this chapter. Enforcement of violations will generally be in accordance with this chapter and the enforcement response plan.
(Ord. 1685 § 3 (Exh. A), 2022)