SEC. 1133. ENFORCEMENT ACTIONS.
(a) Cease and Desist Orders.
(1) Whenever the Director finds that a person, business or responsible party is handling hazardous materials in violation of any requirement imposed pursuant to this Article, or pursuant to any order, regulation or permit issued by the Director, the Director may:
(A) Issue an order directing the person, business or responsible party to cease and desist such violation and directing the person, business or responsible party to achieve compliance in accordance with a detailed time schedule of specific actions the person, business or responsible party must take in order to correct or prevent violations of this Article;
(B) Issue an order revoking or suspending any permit.
(2) Any order issued by the Director under this Section may require the person, business or responsible party to provide such information as the Director deems necessary to explain the nature of the violation. The Director may require in any cease and desist order that the discharger pay to the City the costs of any extraordinary inspection or monitoring deemed necessary by the Director because of the violation.
(b) Cleanup and Abatement Orders.
(1) Any person, business or responsible party who has caused or permitted an unauthorized release or is causing or permitting an unauthorized release or any other person responsible for the cleanup of an unauthorized release who fails to take cleanup action in violation of this Article or any order, regulation, or prohibition issued by the Director, shall, upon order of the Director and at the expense of the person, business or responsible party, clean up such unauthorized release and abate the effects.
(2) Any responsible party who fails to take action to close a UST or establishment containing hazardous materials, or otherwise violates this Article or any order, regulations, or prohibition issued by the Director related to closure, shall, upon order of the Director and at the expense of the responsible party, close the UST or establishment and abate the effects of any release.
(3) The Director may perform any cleanup, abatement, or remedial work required under Subdivision (b)(1) or (2) when required by the magnitude of the violation or when necessary to prevent pollution, nuisance, or injury to the environment or protect public health and safety. Such action may be taken in default of, or in addition to, remedial work by the person, business or responsible party, regardless of whether injunctive relief is being sought.
(4) Any person, business or responsible party who has violated or is in violation of the requirements of this Article shall be liable to the City for costs incurred in cleaning up and abating the effects of the violation, or taking other remedial action, including but not limited to administrative costs, inspection costs and attorneys fees. All costs for which payment is not received within 30 days of the issuance of a notice to the responsible party of payment due, shall be delinquent and subject to a penalty of 10 percent, not to exceed $2,000, and interest at the rate of one percent per month on the outstanding balance from the date payment is due. In addition, the City may impose a special assessment lien against the property as provided in Section 1136.
(c) Administrative Civil Penalty Orders.
(1) The Director may issue a complaint, approved as to form by the City Attorney, to any person or business on whom an administrative civil penalty may be imposed pursuant to Section 1134. The complaint shall allege the acts or failures to act that constitute a basis for liability and the amount of the proposed administrative civil penalty. The Director shall serve the complaint by personal service or certified mail and shall inform the party so served that a hearing shall be conducted within 60 days after the party has been served, unless the party waives the right to a hearing. If the party waives the right to a hearing, the Director shall issue an order setting liability in the amount proposed in the complaint unless the Director and the party have entered into a settlement agreement, in which case the Director shall issue an order setting liability in the amount specified in the settlement agreement. The settlement agreement shall be approved by the City Attorney as to form. Where the party has waived the right to a hearing or where the Director and the party have entered into a settlement agreement, the order shall not be subject to review by any court or agency.
(2) Any hearing required by Subsection (1) shall be conducted in accordance with the procedures in Section 1137. After conducting any hearing required under this Section, the Department shall, within 30 days after the case is submitted, issue a decision, including an order setting the amount of the administrative civil penalty to be imposed.
(3) Orders setting civil liability issued under this Section shall become effective and final upon issuance, and payment shall be made within 30 days of issuance. Copies of these orders shall be served by personal service or by certified mail upon the party served with the complaint and upon other persons who appeared at the hearing and requested a copy.
(4) Within 30 days after service of a copy of a decision issued by the Director, any person so served may file with the superior court a petition for writ of mandate for review of the decision. Any person who fails to file the petition within this 30-day period may not challenge the reasonableness or validity of a decision or order of the Director in any judicial proceedings brought to enforce the decision or order or for other remedies. Except as otherwise provided in this Section, Section 1094.5 of the California Code of Civil Procedure shall govern any proceedings conducted pursuant to this Section. In all proceedings pursuant to this Section, the court shall uphold the decision of the Department if the decision is based upon substantial evidence in the whole record. The filing of a petition for writ of mandate shall not stay any accrual of any penalties assessed pursuant to this Article. This subdivision does not prohibit the court from granting any appropriate relief within its jurisdiction.
(d) Injunctive Relief.
(1) Upon the failure of any person, business or responsible party to comply with any requirement of this Article, a permit, any regulation, a cease and desist order, a cleanup and abatement order, or any other order issued by the Director, the City Attorney, upon request by the Director, may petition the proper court for injunctive relief, payment of civil penalties, and any other appropriate remedy, including restraining such person, business or responsible party from continuing any prohibited activity and compelling compliance with lawful requirements.
(2) In any civil action brought pursuant to this Article in which a temporary restraining order, preliminary injunction, or permanent injunction is sought, it is not necessary to allege or prove at any stage of the proceeding any of the following:
(A) Irreparable damage will occur should the temporary restraining order, preliminary injunction, or permanent injunction not be issued;
(B) The remedy at law is inadequate.
The court shall issue a temporary restraining order, preliminary injunction, or permanent injunction in a civil action brought pursuant to this Article without the allegations and without the proof specified above.
(e) Termination of Establishment Containing Hazardous Materials. In addition to other remedies, when in the judgement of the Director, a person or business operating an establishment containing hazardous materials has not or cannot demonstrate satisfactory progress toward compliance with the requirements of this Article, the Director may remove any hazardous materials handled at the establishment, after providing written notice to the person or business operating the establishment and the owner of the real property upon which the establishment is located, by certified mail 30 days in advance of such action.
(f) Notices of Violation. Whenever the Director determines that a person, business or responsible party is not in compliance with the provisions of this Article, the Director may issue a notice of violation ordering the person, business or responsible party to comply with this Article.
(g) The Director may request that the District Attorney institute criminal proceedings in enforcement of this Article against any violation, the Chief of Department initiate enforcement procedures pursuant to the provisions of the Fire Code, and the Chief of Police and authorized agents assist in the enforcement of this Article.
(h) Except as otherwise provided in this Section for administrative civil penalty orders, an order issued under this Section shall become final five days after mailing if issued by certified mail, or upon receipt if issued by personal service.
(i) Except as otherwise provided in this Section for administrative civil penalty orders, any party who is the subject of an enforcement action under this Section may request a public hearing within 15 days of the final date of an order issued under this Section, but except for orders revoking or suspending a permit, the effective date of an order shall not be postponed solely because of the filing of a request for a hearing. Notice of a public hearing and of the final decision of the Director shall be given as provided in Section 1137.
(Added by Ord. 164-92, App. 6/10/92; amended by Ord. 399-97, App. 10/17/97)
SEC. 1134. PENALTIES.
(a) Criminal Penalties.
(1) Any person or business that wilfully prevents, interferes with, or attempts to impede the enforcement of this Article by any authorized representative of the Director is, upon conviction, guilty of a misdemeanor.
(2) Any person or business which violates Section 1151(a) shall, upon conviction, be punished by a fine of not more than $25,000 for each day of violation, or by imprisonment in the County Jail for not more than one year, or by both fine and imprisonment. If the conviction is for a violation committed after a first conviction under this Section, the person or business shall be punished by a fine of not less than $2,000 or more than $50,000 per day of violation, or by imprisonment in the State Prison for 16, 20, or 24 months or in the County Jail for not more than one year, or by both fine and imprisonment.
(3) Any person subject to the underground storage tank requirements of Chapter 6.7 of California Health and Safety Code (commencing with Section 25280) who falsifies any monitoring records required by that chapter or this Article, or knowingly fails to report an unauthorized release as required by that chapter and Section 1151(b), shall, upon conviction, be punished by a fine of not less than $5,000 or more than $10,000, by imprisonment in the County Jail for not to exceed one year, or by both fine and imprisonment.
(4) Any person or business who violates Section 1150 shall, upon conviction, be guilty of a misdemeanor or an infraction. If charged as an infraction, upon conviction, said person or business shall be punishable by a fine in an amount not to exceed $250. If charged as a misdemeanor, upon conviction, said person or business shall be punished by imprisonment in the County Jail not exceeding six months or a fine not exceeding $500, or both. Each day each violation is committed or permitted to continue shall constitute a separate offense. In addition to any peace officer, the following classes of employees of the City and County of San Francisco shall have the authority to enforce the provisions of this subsection:
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