§ 2297a. Enforcement of solid waste ordinance by town, city, or incorporated village

(a) Solid waste order. A legislative body may issue and enforce a solid waste order in accordance with this section. A solid waste order may include a directive that the respondent take actions necessary to achieve compliance with the ordinance, to abate hazards created as a result of noncompliance, or to restore the environment to the condition existing before the violation and may include a civil penalty of not more than $800.00 for each violation and in the case of a continuing violation, not more than $100.00 for each succeeding day. In determining the amount of civil penalty to be ordered, the legislative body shall consider the following:

(1) the degree of actual or potential impact on public health, safety, welfare, and the environment resulting from the violation;

(2) whether the respondent has cured the violation;

(3) the presence of mitigating circumstances;

(4) whether the respondent knew or had reason to know the violation existed;

(5) the respondent's record of compliance;

(6) the economic benefit gained from the violation;

(7) the deterrent effect of the penalty;

(8) the costs of enforcement;

(9) the length of time the violation has existed.

(b) Notice. When the legislative body has reasonable grounds to believe that a person has violated a solid waste ordinance, the legislative body may issue notice of the alleged violation, which shall be delivered to the respondent in person or mailed to the respondent by first class mail or by certified mail, return receipt requested. If mailed by first class mail, the notice is deemed received three days after the date of mailing. A copy of the notice of violation shall be mailed to the Department of Environmental Conservation for information purposes only. The notice of violation shall include:

(1) a brief description of the alleged violation and identification of the ordinance alleged to have been violated;

(2) a brief description of the potential enforcement actions which may be taken by the legislative body and the legislative body's probable course of action;

(3) a statement that the respondent has a right to a preliminary hearing before the legislative body and a description of the procedures for requesting a preliminary hearing.

(c) Preliminary hearing. A person who receives a notice of violation shall be offered an opportunity for a preliminary hearing before the legislative body for the purpose of determining whether a violation exists and reviewing the legislative body's probable course of action. The request for hearing shall be made in writing to the clerk of the town, city, or incorporated village no later than ten days after the date the notice of violation is received. The legislative body shall hold a hearing within 14 days of receipt of the request for a hearing.

(d) Proposed order. After a preliminary hearing, the legislative body may issue a proposed order. If no hearing is requested within ten days after the date of receipt of the notice of violation, the legislative body may issue a proposed order at once. A proposed order shall be delivered to the respondent in person or mailed to the respondent by first class mail or by certified mail, return receipt requested. If mailed by first class mail, the order is deemed received three days after the date of mailing.

(e) Contents of proposed order. A proposed order shall include:

(1) a statement that the respondent has the right to request a hearing before the legislative body on the proposed order and the procedures for requesting the hearing;

(2) a statement that the respondent has the right to request a hearing before the Environmental Division after the order has become final and a description of the procedures for requesting a hearing before the Environmental Division;

(3) a statement that filing a request for hearing before the Environmental Division will stop penalties from accruing in the case of a continuing violation;

(4) if applicable, a directive that the respondent take actions necessary to achieve compliance with the ordinance, to abate hazards created as a result of noncompliance, or to restore the environment to the condition existing before the violation;

(5) if applicable, a civil penalty of not more than $800.00 for each violation and in the case of a continuing violation, not more than $100.00 for each succeeding day.

(f) Hearing on proposed order. A person who receives a proposed order shall be offered an opportunity for a hearing before the legislative body, provided that the request for hearing is made in writing to the clerk of the town, city, or incorporated village no later than 15 days after the date of receipt of the order. If the respondent does not request a hearing, the order shall be deemed a final order, and shall be effective on the date of receipt or a later date stated in the order. If the respondent does request a hearing subsequent to receipt of the order, the legislative body shall hold a hearing within 14 days of receipt of the request. After the hearing, the legislative body may withdraw or amend the order and may issue a final order, which shall be delivered or mailed to the respondent in the same manner as proposed orders and which shall be effective on the date of receipt or a later date stated in the order.

(g) Continuing violations. Each day that a violation continues from the effective date of a final order shall constitute a separate violation. However, the filing of a request for hearing with the Environmental Division shall stop penalties from accruing in the case of a continuing violation until the Environmental Division has issued its order.

(h) Effect of imposition of penalty. Imposition of a penalty under this subchapter precludes imposition by the town, city, or incorporated village of any other administrative or civil penalty under any other provision of law for the same violation.

(i) Payment to town, city, or incorporated village. All penalties collected under this subchapter shall be paid to the town, city, or incorporated village whose ordinance is the subject of the violation.

(j) Enforcement. The legislative body may seek enforcement of a final order in the Superior Court or before the Environmental Division. If a penalty is imposed and the respondent fails to pay the penalty within the time prescribed, the legislative body may bring a collection action in the Superior Court. (Added 1991, No. 108, § 2; amended 1993, No. 232 (Adj. Sess.), § 38, eff. March 15, 1995; 2009, No. 154 (Adj. Sess.), § 236; 2017, No. 130 (Adj. Sess.), § 16.)