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HomeMy WebLinkAbout2009-037 Stormwater Illicit Discharge; YMC Amendment 7.85 ORDINANCE NO 2009 -37 AN ORDINANCE related to stormwater regulation; amending Chapter 785 of the Yakima Municipal Code entitled Stormwater Illicit Discharge with revisions concerning (1) The time allowed for bringing a connection into compliance (180 days), (2) Classifying violations and civil penalties by the week (general violations) and by the day (violations with an imminent threat to public health and safety); and, (3) Clarifying the time period for appeals to the City Council, and, (4) Amending section 7 85 050B; section 7 85 100, section 7 85 170A and section 7 85.220A. WHEREAS the City Council adopted a new Stormwater illicit Discharge Ordinance on July 7, 2009 and directed staff to consider possible revisions; and WHEREAS the staff conducted its review to consider possible revisions and determined there were three subjects recommended for revision. BE IT ORDAINED BY THE CITY OF YAKIMA. Section 1 Section 7 85 050B of the City of Yakima Municipal Code is amended to read as follows: 7.85.050 Prohibition of Illicit Connections. A. The construction, use, maintenance or continued existence of an illicit connection to the MS4 or public UIC is prohibited. B. This prohibition expressly includes, without limitation, illicit connections made in the past, regardless of whether the connection was permissible under law or practices applicable or prevailing at the time of connection The Wastewater Manager is directed to allow a reasonable period of time, not to exceed 180 days from the date of notification, to correct connections made in the past that are now illicit. C A person is considered in violation of this ordinance if the person connects a line conveying sewage to the MS4 or public UIC, or allows such a connection to continue Section 2. Section 7 85.100 the City of Yakima Municipal Code is amended to read as follows: 7.85.100 Administrative Penalties and Measures. Notwithstanding any other section of this chapter, any person who is found in violation of any provision of this chapter, or orders issued hereunder, is subject to penalties in an amount up to one thousand dollars ($1,000) per violation. Each week on which noncompliance occurs or continues on a non - emergency basis, without an imminent threat to public health and safety, shall be deemed a separate and distinct violation Each day on which noncompliance occurs or continues, with an imminent threat to public health and safety, shall be deemed a separate and distinct violation. Unpaid charges and penalties shall constitute a lien against the responsible person's property Issuance of an administrative penalty shall not be a prerequisite for taking any other action against the person. 1 i Section 3 Section 7 85 170A of the City of Yakima Municipal Code is amended to read as follows. 7.85.170 Appeal to the City Council. A. Any decision of the City Manager or the City Manager's designee rendered pursuant to YMC 7 85 160 may be reviewed by appeal to the City Council The appellant must file written notice of appeal with the Clerk of the City Council within fifteen (15) days following legally acceptable receipt of the City Manager or the City Manager's designee's decision or action Such notice of appeal shall set forth in detail the action or decision appealed and the person's specific grounds for reversal or modification thereof Failure to submit a timely notice is deemed a failure to exhaust administrative remedies and shall preclude any further review B Following receipt of such notice, the Clerk of the City Council will schedule a date for a public hearing by the City Council at which time the City Council shall consider the appeal. The date of the public hearing shall generally be no later than thirty (30) days following the date the Clerk of the City Council receives notice of the appeal The Clerk of the City Council shall mail written notice to all parties of record to apprise them of the time and date of the City Council's review C The City Council's review of the facts shall be limited to the evidence and record previously presented to the City Manager or the City Manager's designee The City Council may request additional information or memoranda in order to reach a decision, all parties of record shall be given an opportunity to respond to the information provided. D The City Council may adopt, amend or reverse the findings, conclusions and decision of the City Manager or the City Manager's designee, or remand the matter to the City Manager or the City Manager's designee for further action. Section 4 Section 7 85.220A of the City of Yakima Municipal Code is amended to read as follows: 7.85.220 Civil Penalties. A. Any person who has violated or continues to violate an order of the City, or who fails to comply with. (a) any provision of this chapter, or (b) any rule or order of the City, issued pursuant to this chapter, is subject to a civil penalty The amount of such civil penalty shall be up to one thousand dollars ($1,000) per violation, plus actual damages, costs and expenses incurred by the City Each week on which non - compliance occurs or continues on a non - emergency basis, without an imminent threat to public health and safety, shall be deemed a separate and distinct violation. Each day on which non - compliance occurs or continues, with an imminent threat to public health and safety, shall be deemed a separate and distinct violation Civil penalties that are not paid shall constitute a lien against the responsible person's property In addition, the Wastewater Manager may recover reasonable attomey's fees and court costs associated with the enforcement activities, including sampling and monitoring expenses. B The Wastewater Manager may petition the Yakima County Superior Court to impose, assess and recover such civil penalties. In determining the amount of liability, the court will 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, the compliance history of the person and any other relevant factors C Filing suit for civil liability shall not be a prerequisite for taking any other action against a person 2 Section 5. If any section, subsection, paragraph, sentence, clause or phrase of this ordinance is declared invalid or unconstitutional for any reason, such decision shall not affect the validity of the remaining portions of this ordinance Section 6. This ordinance shall be in full force and effect thirty (30) days after its passage, approval and publication as provided by law and by the City Charter PASSED BY THE CITY COUNCIL, signed and approved this 21 day of July, 2009 /' / '"�'iavid Edler, Mayor ATTEST City Clerk Publication Date: July 26, 2009 Effective Date August 25, 2009 3 0 July 16, 2009 City Response to Central Washington Home Builders Association (CWHBA) Comments 1. The Ordinance prescribes EACH DAY of non - compliance a separate violation of the ordinance The Home Builders recommend amending sections 7.85.100 and 7.85.220 of the Ordinance to prescribe EACH WEEK of non- compliance a separate violation. (The time period of EACH WEEK would match the Regional Stormwater Illicit Discharge Model Ordinance). Stair Response The change requested by the Home Builders, treating each week of non - compliance as a separate violation, is included in the revised ordinance. This provision applies to a general violation that does not create a hazardous condition. As an exception to a general violation, when the City is confronted with an imminent threat to public health and safety, the ordinance includes a new provision. In that situation, each day of an imminent threat to public health and safety is deemed a separate and distinct violation. This is consistent with other provisions of the Yakima Municipal Code and long - established state and federal law Thus, depending on the nature of the discharged substance, the City can promptly respond to an emergency created by an imminent threat to public health and safety • By addressing the violations in these two categories, the City is also able to reduce its liability, minimize risks and manage protection of the public's welfare. If the City did not have the ability to respond to an emergency in this regard, the City is exposed to considerably greater risk of harm with real potential for costly, serious litigation. City Staff respectfully requests revising the ordinance to specify "Each Week" for a general violation of the ordinance and "Each Day" for an exception where there is an imminent threat to public health and safety 2. The Home Builders recommend amending the Ordinance to include a provision that clearly states connections made in the past, that are now illicit under this Ordinance, will have a reasonable period of time to correct the connection. Staff Response The Eastern Washington Phase II Municipal Stormwater Permit allows up to 180 days to the City of Yakima to correct the connection. The City will review each illicit connection and determine the amount of time it can reasonably grant to the individual depending on the circumstances of the connection. A reference to 180 days was intentionally omitted from the ordinance since this timeline is placed on the City by the Department of Ecology, it is not the timeline place on the property owner of the illicit connection -1- City Staff recommends revising the current ordinance to incorporate" The Wastewater Manager • is directed to allow a reasonable penod of time to correct connections made in the past that are now illicit." in order to correct an illicit connection. 3. Failure to submit a timely notice Shall be deemed a failure to exhaust administrative remedies and shall preclude further review - §7. 85.160 R The Home Builders recommend amending the ordinance in §7.85.160 R to read "Failure to submit a timely notice may be deemed a failure to exhaust administrative remedies and may preclude further review " Staff Response The ordinance requires filing a timely notice to obtain a heanng. This provision, in using the term "Shall," ensures certainty in the process and ultimately, reduces further nsk to the City Moreover, "Shall" in this context is a basic requirement of municipal law and state law in general The City's other existing ordinances require filing timely notice and it is very important to retain consistency from one ordinance to another This provision also ensures all citizens are treated the same which is a crucial requirement of due process and equal protection in the law The other provisions referred to by the Home Builders using the term "May" all relate to discretionary actions the City could take in enforcement. In contrast, this provision addresses the basic legal requirement for filing a timely notice in order to obtain a hearing. The two subject are apples and oranges as one provides for enforcement and the other for jurisdiction for the City to consider an appeal. Jurisdiction is a fundamental matter that compels the use of the term "Shall" and not "May." City Staff respectfully requests that "Shall" remain in the ordinance in order for filing a timely notice to obtain a hearing. 4. The appellant must file written notice of appeal within fifteen (15) days following issuance of the... City manager... decision or action... - §"7.85.170 A The Home Builders submit that the fifteen day time penod for filing notice of an appeal should begin after receipt of the City's decision instead of its issuance Staff Response. City Staff recommends revising the current ordinance to require filmg notice of an appeal within 15 days after legally acceptable receipt of the City's decision This means that once the City's decision is placed in the mail, it is deemed received after the passage of several days. • -2- • ORDINANCE NO 2009 - ( Formatted: Font: 14 pt AN ORDINANCE related to illicit stormwater regulation, adopting a new chapter in Title 7 of the Yakima Municipal Code entitled Stormwater Illicit Discharge pursuant to authority provided in the state Water Pollution Control Act, Ch 90 48, RCW, and the federal Water Pollution Control Act (the Clean Water Act), 33 USC 1251 et seq , defining the illicit stormwater discharge prohibitions, specifying the procedures and standards for inspections, including right of entry; providing for enforcement, including administrative, civil and criminal penalties, prescribing the procedures and standards for appeals and hearings, and, creating a new Chapter 7 85 of the City of Yakima Municipal Code,, with (Deleted: revisions concerning (1)The time allowed for bringing a connection into - Formatted: Bullets and Numbering compliance (180 days) janguage added to clarify - Formatted: Font: 14 pt, Underline, Font color Dark Yellow reasonable time granted to address illicit 1111 discharge ` Formatted: Font: 14 pt, Font color ( 2)Classifying violations and civil penalties by the Lime Formatted: Font: 14 pt week (general violations) and by the day (violations with an imminent threat to public health and safety), and, (3) Clarifying the time period for appeals to the City Council BE IT ORDAINED BY THE CITY OF YAKIMA. Section 1 Title 7 of the City of Yakima Municipal Code is amended to add YMC Chapter 7 85 to read as follows Chapter 7 85 STORMWATER ILLICIT DISCHARGE Sections 7 85 010 Purpose 1 7 85 020 Applicability and Authority • 7 85 030 Definitions 7 85 040 Discharge Prohibitions 7 85 050 Prohibition of Illicit Connections 7 85 060 Suspension Due to Illicit Discharges in Emergency Situations 7 85 065 Suspension Due to the Detection of Illicit Discharge or Illicit Connection 7 85 070 Right of Entry 7 85 080 Notification of Spills 7 85 090 Notice of Violation 7 85 100 Consent Orders 7 85 110 Compliance Orders 7 85 120 Cease and Desist Orders 7 85 130 Administrative Penalties and Measures 7 85 140 Recovery of Costs Incurred by the City 7 85 150 Emergency Suspension of Connection 7 85 160 Administrative Hearing 7 85 170 Appeal to the City Council 7 85 180 Judicial Review 7 85 190 Publication of Enforcement Actions 7 85 200 Judicial Remedies 7 85 210 Injunctive Relief 7 85 220 Civil Penalties • 7 85 230 Falsifying Information 7 85 240 Criminal Penalties 7 85.250 Remedies Nonexclusive 7 85.260 Compensatory Action 7 85 270 Compatibility with Other Permit and Ordinance Requirements 7 85 280 Liability 7 85 010 Purpose A. The purpose of this ordinance is to provide for the health, safety and general welfare of the citizens of the City of Yakima through the regulation of non - stormwater discharges to the regulated Municipal Separate Storm Sewer System (MS4) and public Underground Injection Control (UIC) wells to the maximum extent practicable as required by federal and state law This ordinance establishes methods for controlling the introduction of pollutants into 2 • the MS4 or public UICs in order to comply with requirements of the Eastern Washington Phase II Municipal Stormwater Permit process and Washington ,Department of Ecology's Guidance for UIC Wells that Manage Stormwater The objectives of this ordinance are 1 To regulate the contribution of pollutants to the MS4 and public UIC wells, 2 To prohibit illicit connections and discharges to the regulated municipal separate storm sewer system and public UIC wells, and 3 To establish legal authority to carry out all inspection, surveillance and monitoring procedures necessary to ensure compliance with this ordinance 7 85 020 Applicability and Authority A. This ordinance shall apply to all water or pollutants entering the MS4 and public UIC wells generated on any developed and undeveloped lands unless explicitly exempted by the City's Wastewater Manager B This ordinance is adopted pursuant to authority conferred by and in accordance with the provisions of the state Water Pollution Control Act Chapter 90 48, RCW, and the federal Water Pollution Control Act (the Clean Water Act), 33 USC 1251 et seq C The Wastewater Manager of the City is hereby authorized and • designated as the official responsible for the enforcement and administration of this chapter The Wastewater Manager may designate employees within the division to act on his /her behalf 7 85 030 Definitions This section provides definitions for the terms and phrases used in this chapter Where any of these definitions conflict with definitions used in other chapters of the Yakima Municipal Code, the definitions in this section shall prevail for the purpose of this chapter "Best Management Practices" or "BMPs" means the schedule of activities, prohibitions of practices, maintenance procedures and structural and /or managerial practices approved by Ecology that, when used singly or in combination, prevent or reduce the release of pollutants and other adverse impacts to receiving waters "Clean Water Act" or "CWA" means the federal Water Pollution Control Act or Water Pollution Control Act Amendments of 1972, 33 USC 1251 et seq 3 • "Construction Activity" means clearing, grading and /or excavation • These activities are required to obtain NPDES permit coverage in accordance with 40 CFR 122 26 "Discharge" means any spilling, leaking, pumping, pouring, emptying, dumping, disposing or other addition of pollutants to the City of Yakima's UIC wells, waters of the State or the MS4 "Hazardous Materials" means those wastes designated by 40 CFR Part 261 and regulated by the Environmental Protection Agency and the Washington State Department of Ecology "Illicit Discharge" means any discharge to a MS4 or public UIC that is not composed entirely of stormwater except discharges pursuant to a NPDES permit (other than the NPDES permit for discharges from the MS4) "Illicit Connection(s)" means a connection defined as either of the following 1 Any drain or conveyance, but not limited to same, whether on the surface or subsurface, which allows an illicit discharge, including non - stormwater discharge, sewage, process wastewater and wash water to enter the MS4 or a public UIC and any connections to the MS4 or public UIC system from indoor drains and sinks, regardless of whether said drain or connection was previously allowed, permitted or approved by the authority with jurisdiction 2 Any drain or conveyance connected from a commercial or industrial land use to the MS4 or a public UIC which has not been 1111 documented in plans, maps and /or equivalent records and approved by the authority with jurisdiction 3 Any drain or conveyance which connects a private storm drain system to a public storm drain system or public UIC "Industrial Activity" means manufacturing, processing or raw materials storage areas at an industrial plant. These activities are required to obtain NPDES permit coverage in accordance with 40 CFR 12226 "Municipal Separate Storm Sewer System" or "MS4" means a conveyance, or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, manmade channels or storm drains) (i) owned or operated by a state, city, town, borough, county, parish, district, association or other public body (created by or pursuant to state law) having jurisdiction over disposal of wastes, stormwater or other wastes, including special districts under state law such as a sewer district, 4 • flood control district or drainage district, or similar entity, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under section 208 of the federal Clean Water Act that discharges to waters of the United States, (ii) designed or used for collecting or conveying stormwater; (iii) which is not a combined sewer; and (iv) which is not part of a Publicly Owned Treatment Works (POTW) as defined at 40 CFR 122.2 "National Pollutant Discharge Elimination System" or "NPDES" means the national program for issuing, modifying, revoking, reissuing, terminating, monitoring, enforcing permits, and imposing and enforcing pretreatment requirements, under sections 307, 402, 318, and 405 of the federal Clean Water Act, for the discharge of pollutants to surface waters of the state from point sources These permits are referred to as NPDES permits, and, in Washington State, are administered by the Department of Ecology as well as the delegated pre- treatment program with the City of Yakima "Non - Stormwater Discharge" means any discharge to the MS4 or public UIC that is not composed entirely of stormwater "Person" means any individual, association, organization, partnership, firm, corporation or other entity recognized by law and acting as either the owner or as the owner's agent. "Pollutant" means dredged spoil, solid waste, incinerator residue, • filter backwash, sewage, garbage, domestic sewage sludge (biosolids), munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal and agricultural waste discharged into water "Pollution" means contamination or other alteration of the physical, chemical or biological properties of waters of the state, including change in temperature, taste, color, turbidity, or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive or other substance into any waters of the state as will or are likely to create a nuisance or render such waters harmful, detrimental or injurious to the public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life "Premise(s)" means any building, lot, parcel of land, or portion of land whether improved or unimproved, including any structures thereon, adjacent sidewalks and parking strips 5 Ill "Process Wastewater" means any water which, during 11111 manufacturing or processing, comes into direct contact or results from the production or use of any raw material, intermediate product, finished product, byproduct or waste product. "Public" means any real property, or interest therein, belonging to the City "Stormwater" means runoff during and following precipitation and snowmelt events, including surface runoff, drainage and interflow "Underground Injection Control" or "UIC" or "UIC well" means a manmade sub - surface fluid distribution system designed to discharge fluids into the ground and consists of an assemblage of perforated pipes, drain tiles or other similar mechanisms, or a dug hole that is deeper than the largest surface dimension A public UIC is one owned, operated and maintained by the City and includes the collection system of catch basins, pipes, ditches or other public infrastructure that collects and conveys stormwater to the UIC "Waters of the State" means those waters as defined as "waters of the United States" in 40 CFR 122.2 within the geographic boundaries of Washington State and "waters of the state" as defined in Chapter 90 48, RCW, which includes lakes, rivers, ponds, streams, inland waters, underground waters, salt waters and all other surface waters and water courses within the jurisdiction of the State of Washington 7 85 040 Discharge Prohibitions A. No person shall discharge or cause to be discharged into the MS4 or a public UIC any materials, including but not limited to pollutants or waters containing any pollutants other than stormwater B The commencement, conduct or continuance of any illicit discharge into the MS4 or a public UIC is prohibited except as described as follows 1 The following discharges are exempt and shall only be illicit discharges if the City has reason to consider that the discharge, whether singly or in combination with others, may cause or contribute to a violation of the City's stormwater permit, may cause the City to violate Ecology's UIC rules, or is causing or contributing to a water quality or flooding problem In such cases, it shall be the responsibility of the discharger to provide evidence that the discharge is not illicit and complies with the following a Discharges resulting from emergency fire fighting activities shall be exempt at all times as noted in S2 B2 NPDES Permit; 6 • b Diverted stream flows, c Rising ground waters, d Uncontaminated ground water infiltration (as defined at 40 CFR 35.2005(20), e Uncontaminated pumped ground water; f Foundation drains, g Air conditioning condensation, h Irrigation water from agricultural sources that is commingled with urban stormwater; i Springs, j Water from crawl space pumps, k. Footing drains, I Flows from riparian habitats and wetlands, m Discharges from lawn watering and other irrigation runoff 2 Dye testing is an allowable discharge but requires a verbal notification to the Wastewater Manager prior to the time of the test. 3 The following discharges are not exempt from discharge prohibitions established by this ordinance a Discharges from potable water sources, including water line flushing, hyperchlorinated water line flushing, fire hydrant system flushing and pipeline hydrostatic test water (i) Planned discharges from potable water sources may be discharged to the MS4 or public UIC provided they are dechlorinated to a concentration of 0 1 ppm or • less, pH- adjusted if necessary, and volumetrically and velocity controlled to prevent resuspension of sediments in the MS4 or public UIC b Swimming pool discharges (i) Discharges from swimming pools may be discharged to the MS4 or public UIC provided they are dechlorinated to a concentration of 0 1 ppm or less, pH- adjusted and reoxygenated if necessary, and volumetrically and velocity controlled to prevent resuspension of sediments in the MS4 or public UIC (ii) Swimming pool cleaning wastewater and filter backwash shall not be discharged to the MS4 or public UIC c. Street and sidewalk wash water containing detergents, water used to control dust containing detergents, and routine external building wash down containing detergents (i) Street and sidewalk wash water, water used to control dust and routine external building wash down water may be discharged to the MS4 or public UIC provided it does not contain detergents, streets and sidewalks are swept and material removed prior to washing, and at active 7 III construction sites, street sweeping shall be performed prior to 11111 washing the street. 4 Discharges specified in writing by the state Department of Ecology, as a significant source of pollutants to waters of the state, are prohibited 5 The prohibition shall not apply to any non - stormwater discharge permitted under an NPDES permit, waiver or waste discharge order issued to the discharger and administered under the authority of the federal Environmental Protection Agency, provided that the discharger is in full compliance with all requirements of the permit, waiver or order and other applicable laws and regulations, and provided that written approval has been granted from the City for any discharge to the MS4 or public UIC 7 85 050 Prohibition of Illicit Connections A. The construction, use, maintenance or continued existence of an illicit connection to the MS4 or public UIC is prohibited B This prohibition expressly includes, without limitation, illicit connections made in the past, regardless of whether the connection was permissible under law or practices applicable or prevailing at the time of connection The Wastewater Manager is directed to allow a reasonable period of time to correct connections made in the past that are now illicit. C A person is considered in violation of this ordinance if the person connects a line conveying sewage to the MS4 or public UIC, or allows such a connection to continue 7 85 060 Suspension Due to Illicit Discharges in Emergency Situations The City may, without prior notice, suspend MS4 or public UIC discharge access to a person when such suspension is necessary to stop an actual or threatened discharge, either illicit or which presents or may present imminent and substantial danger to the environment, or to the health, safety or welfare of the public, or to the MS4 or public UIC or waters of the United States If the violator fails to comply with a suspension order issued in an emergency, the City may take such steps as deemed necessary to prevent or minimize damage to the MS4, the public UIC or to minimize danger to persons 8 • • 7 85 065 Suspension Due to the Detection of Illicit Discharge or Illicit Connection A. Any person discharging or connected to the MS4 or public UIC in violation of this ordinance may have their MS4 or public UIC access terminated if such termination would abate or reduce an illicit discharge or connection The City will notify a violator of the proposed termination of its MS4 or public UIC access The person responsible must respond within fifteen (15) days of said notification to propose a voluntary correction in accordance with Section 7 85 090 of this ordinance B A person commits a violation of this ordinance if the person reinstates MS4 or public UIC access to premises terminated pursuant to this section, without the prior approval of the City 7 85 070 Right of Entry A. General The Wastewater Manager, designated City employee or authorized representative is hereby authorized and directed to enforce the provisions of this title The Wastewater Manager may employ, appoint and designate such City employees, representatives or officers to act on his behalf in the enforcement of this title under such control and supervision as he may specify Any reference herein to the Wastewater Manager shall also refer to designated City employees and the manager's duly authorized representatives The • Wastewater Manager, designated City employee or authorized representative shall, either upon complaint or upon his own initiative, investigate potential violations of this title It shall be the duty of all the City officers to assist the Wastewater Manager, designated City employee or authorized representative in the performance of this duty It shall be the duty of all officers charged with the enforcement of the law to assist in the implementation of this title and its provisions B Entrance onto Private Property When necessary to perform any duties under this title or to investigate upon reasonable cause or complaint the existence or occurrence of a violation of this title, the Wastewater Manager, designated City employee or authorized representative may enter onto property to inspect the same or to perform any duty imposed or authorized by this title, provided, that if such property is occupied and not a public place, the Wastewater Manager, designated City employee or authorized representative shall first present proper credentials and request permission to enter; 9 III and if such property is not occupied, the Wastewater Manager, designated City employee or authorized representative shall first make a reasonable effort to locate the owners or other persons having charge or control and request entry If such entry is refused, the Wastewater Manager, designated City employee or authorized representative shall have recourse to every remedy provided by law to secure entry The right of entry established under this title extends to any authorized employee, officer or person who accompanies the Wastewater Manager, designated City employee or his authorized representative C Judicial Warrant. If the Wastewater Manager, designated City employee or authorized representative is refused access to the property or any part thereof, and if the Wastewater Manager, designated City employee or authorized representative has demonstrated a reasonable cause to believe that a violation of this title exists, or that there is a need to inspect as part of a routine inspection program of the City designed to verify compliance with this title or any order issued hereunder, then upon application by the City Attorney, a Judge of a competent jurisdiction will issue a search warrant describing the specific location subject to the warrant. The warrant will specify what may be searched and /or seized on the property described The warrant will be served at reasonable hours by the Wastewater Manager, designated City employee or authorized representative in the company of a uniformed police officer of the 111 City In the event of an emergency that presents an imminent threat to public health, safety or welfare as determined by the Wastewater Manager, designated City employee or authorized representative, inspections may take place without the issuance of a warrant D Scope of Entry The right of entry extends to the following matters 1 Entry upon the premises where a facility or activity is located or conducted, or where relevant records are kept; 2 Access to and copying, at reasonable times, relevant records, 3 Inspection at reasonable times of any facilities, equipment (including monitoring and control equipment), practices or operations regulated, 4 Sampling or monitoring for the purposes of assuring compliance, and 5 Inspection of any production, manufacturing, fabricating or storage area where pollutants or non - stormwater discharges may 10 410 originate, are stored or disposed of in the sewer system, the MS4 or public UIC 7.85 080 Notification of Spills Notwithstanding other requirements of law, as soon as any person has information of any release of materials which result in illegal discharges or pollutants discharging into stormwater or the MS4 or public UIC, said person shall take all necessary steps to ensure the discovery, containment and cleanup of such release In the event of a release of these materials, said person shall immediately notify emergency response agencies of the occurrence via emergency dispatch services and shall verbally notify the Wastewater Manager immediately upon the occurrence of a discharge of substances prohibited by this chapter and take immediate action to correct the situation Within five (5) days after the occurrence of the discharge, the discharger shall follow up with a written notification to the Wastewater Division of the City The notification shall include the location of the discharge, date and time thereof, type of waste, concentration and volume and corrective actions taken or required Any discharger who discharges prohibited materials shall be liable for any expense, loss or damage to the City's stormwater system, in addition to any other liability established by this chapter or other City • ordinance and the amount of any fines, penalties, damages or costs assessed against the City by any state or federal agency, court of law or private individual, as a result of the discharge 7.85 090 Notice of Violation Whenever the Wastewater Manager finds that a person is in violation of this chapter, or an order issued hereunder, the Wastewater Manager may serve upon said individual or entity written notice of the violation Within ten (10) days of the receipt of this notice, an explanation of the violation and a plan for the satisfactory correction and prevention thereof, including specific required actions, shall be submitted to the Wastewater Manager Submission of this plan does not relieve the person of liability for any violations occurring before or after receipt of the notice of violation Nothing in this section shall limit the authority of the City to take any action, including emergency actions or any other enforcement action, without first issuing a notice of violation it III 7.85 100 Administrative Penalties and Measures Notwithstanding any other section of this chapter, any person who is found in violation of any provision of this chapter, or orders issued hereunder, is subject to penalties in an amount up to one thousand dollars ($1,000) per violation Each week on which noncompliance _ { Deleted: day occurs or continues on a non - emergency basis shall be deemed a separate and distinct violation Each day on which noncompliance occurs or continues with an imminent threat to public health and safety shall be deemed a separate and distinct violation Unpaid charges and penalties shall constitute a lien against the responsible person's property Issuance of an administrative penalty shall not be a prerequisite for taking any other action against the person 7 85 110 Consent Orders A. The Wastewater Manager is hereby empowered to enter into consent decrees, agreed orders, officially accepted assurances of voluntary compliance or other similar documents establishing an agreement with the person responsible for the violation of this chapter Such orders shall include specific action required by the person to correct the noncompliance within a time period specified by the consent decree, agreed order or other document of assurance of voluntary compliance Such schedules may not extend the compliance date beyond applicable State or federal deadlines Consent decrees shall have the same force and effect as compliance • orders issued pursuant to YMC 7 85 120 and are enforceable in court. B Failure to comply with any terms or requirements of a consent decree, agreed order or other document of assurance of voluntary compliance, by the person shall be an additional and independent basis for enforcement action authorized under this chapter as determined by the Wastewater Manager 7.85 120 Compliance Orders A. When the Wastewater Manager finds that a person has violated or continues to violate this chapter or any consent decree, agreed order or document of assurance of voluntary compliance issued hereunder, the Wastewater Manager may issue a compliance order to the person responsible for the violation directing compliance within a specified time period Compliance orders may also contain such other requirements as necessary to address the noncompliance, 12 • including the installation of pretreatment technology, additional self - monitoring and management practices designed to minimize the amount of pollutants discharged to the MS4 or public UIC and other measures A compliance order may not extend the deadline for compliance established by a state or federal requirement or standard, nor does a compliance order release the person of liability for any violation, including any continuing violation Issuance of a compliance order shall not constitute a prerequisite for taking any other action against the person B Failure to comply with any terms or requirements of a compliance order by the person shall be an additional and independent basis for enforcement action authorized under this chapter as determined by the Wastewater Manager 7 85 130 Cease and Desist Orders When the Wastewater Manager finds that a person has violated or continues to violate this chapter or any order issued hereunder, the Wastewater Manager may issue an order to cease and desist all such violations and direct the responsible person to (1) comply forthwith, and, (2) take such appropriate remedial or preventive action as necessary to address a continuing or threatened violation, including halting operations and terminating the illicit discharge Issuance of a III cease and desist order shall not constitute a prerequisite to taking any other action against the person as determined by the Wastewater Manager 7 85 140 Recovery of Costs Incurred by the City Any person violating any of the provisions of this chapter who discharges or causes a discharge producing a deposit or obstruction or causes damage to or impairs the City's stormwater system shall be liable to the City for all costs, reasonable expenses, losses, fines or damage caused by such violation or discharge Said person is subject to the costs incurred by the City for any cleaning, repair, replacement work, monitoring and testing or other damages caused by the violation or discharge Refusal to pay the assessed costs shall constitute a violation of this chapter enforceable under the provisions of Sections 7 85.220 to 7 85.240 of this chapter 7 85.150 Emergency Suspension of Connection 13 ill A. The Wastewater Manager may order the suspension of a connection after informal notice to the person if it appears to the City 411 that an actual or potential connection (1) presents or threatens a substantial danger to the health, safety or welfare of the public or to the environment; or, (2) threatens to interfere with the operation of the stormwater system or, (3) violates this chapter B Any person notified of a suspension of the connection shall immediately cease all illicit discharges In the event of a person's failure to promptly comply with the suspension order, the Wastewater Manager may take such measures as deemed necessary, including immediate severance of the stormwater connection, to prevent or minimize damage, including, but not limited to, the stormwater system, public UIC or receiving waters, or endangerment to the health, safety or welfare of the public. The City shall, subject to Section 7 56 070, have the right of access to the person's private property to accomplish severance of the illicit connection line The Wastewater Manager will permit recommencement of the discharge when the state Department of Ecology has addressed the endangerment in accordance with the state's requirements C It is unlawful for any person to prevent or attempt to prevent the City from terminating an illicit stormwater connection in an emergency situation by barring entry, physically interfering with City employees or contractors, or by any other means D Any person whose service has been suspended pursuant to this section shall have the right to a post- suspension hearing conducted in accordance with the procedures set forth in YMC 7 85 160 A person responsible, in whole or in part, for imminent endangerment shall submit a detailed written statement to the Wastewater Manager describing the causes of the harmful contribution and the measures taken to prevent any future occurrence prior to the date of the post- suspension hearing 7 85 160 Administrative Hearing A. A person responsible for a violation of this chapter shall have the right to an administrative hearing to contest the City's determination (1) to suspend the discharger's connection, (2) to terminate the connection, (3) to impose administrative penalties, (4) to bill the person for costs incurred by the City as a result of the violation or discharge, or, (5) that the discharger has violated a 14 • • consent decree, agreed order, compliance order, cease and desist order or other agreement or order of the City imposed by this chapter B Any hearing pursuant to this section must be requested in writing within fifteen (15) days after the receipt of notice of the City's determination and shall be filed with the Wastewater Manager Failure to submit a timely notice shall be deemed a failure to exhaust administrative remedies and shall preclude further review The City will conduct the hearing within twenty (20) days of the receipt of the request. C The administrative hearing authorized by this section will be held before the City Manager or the City Manager's designee Formal rules of evidence will not apply but the person and the City shall have the right to present witnesses and documentary evidence The City Manager or the City Manager's designee will issue a written decision within fifteen (15) days of the conclusion of the hearing D Any person requesting a hearing shall have the right to make an electronic or stenographic record of the proceedings Such record shall be made at the expense of the person requesting it. E Except as otherwise provided, all decisions by the City Manager or City Manager's designee shall be final and conclusive on all parties unless appealed to the City Council under YMC 7 85 170 • 7 85 170 Appeal to the City Council. A. Any decision of the City Manager or the City Manager's designee rendered pursuant to YMC 7 85 160 may be reviewed by appeal to the City Council The appellant must file written notice of appeal with the Clerk of the City Council within fifteen (15) days following Jegally acceptable receipt of the City Manager or the City _ Deleted: issuance ) Manager's designee's decision or action Such notice of appeal shall set forth in detail the action or decision appealed and the person's specific grounds for reversal or modification thereof Failure to submit a timely notice is deemed a failure to exhaust administrative remedies and shall preclude any further review B Following receipt of such notice, the Clerk of the City Council will schedule a date for a public hearing by the City Council at which time the City Council shall consider the appeal The date of the public hearing shall generally be no later than thirty (30) days following the date the Clerk of the City Council receives notice of the appeal The Clerk of the City Council shall mail written notice to all parties of 15 411 record to apprise them of the time and date of the City Council's • review C The City Council's review of the facts shall be limited to the evidence and record previously presented to the City Manager or the City Manager's designee The City Council may request additional information or memoranda in order to reach a decision, all parties of record shall be given an opportunity to respond to the information provided D The City Council may adopt, amend or reverse the findings, conclusions and decision of the City Manager or the City Manager's designee, or remand the matter to the City Manager or the City Manager's designee for further action 7 85 180 Judicial Review The decision of the City Council on an appeal of the decision of the City Manager or the City Manager's designee shall be final and conclusive unless within twenty (20) days from the date of its decision, a petition for review is filed in Yakima County Superior Court in the manner prescribed by law 7 85 190 Publication of Enforcement Actions A list of all persons or entities that experience a significant violation of this ordinance during the previous twelve (12) months may be published, at least annually, by the City in the largest local 411 daily newspaper of general circulation For the purposes of this provision, a violation is a significant violation if it meets one or more of the following criteria 1 Any discharge of a pollutant that has caused imminent endangerment to public health, safety or welfare or to the environment or has resulted in the City's exercise of its emergency authority under YMC 7 85 150 to halt or prevent such a discharge, 2 Any other violation or group of violations that causes the City to expend additional time or expense in tracking down the source of a non - stornmwater discharge in the stormwater system or public UIC 7 85.200 Judicial Remedies The Wastewater Manager, through the City Attorney, may commence an action for appropriate legal and /or equitable relief in Yakima County Superior Court against any person responsible for a non - stormwater discharge, including pollutants, into the City's MS4 or 16 • public UIC in violation of this ordinance or any order issued hereunder Such judicial action may be in lieu of or in addition to any other administrative or legal enforcement proceedings authorized herein 7 85.210 Injunctive Relief Whenever a person has violated or continues to violate the provisions of this chapter or any order issued hereunder, the Wastewater Manager, through the City Attorney, may petition the Yakima County Superior Court for the issuance of a temporary restraining order, preliminary or permanent injunction or all of the above which restrains or compels the activities of the responsible person The Wastewater Manager shall have such remedies to collect fees as associated with legal costs as it has to collect other stormwater service charges The City may also seek such other legal and /or equitable relief as deemed appropriate A petition for injunctive relief need not be filed as a prerequisite to taking any other action against the responsible person 7 85.220 Civil Penalties A. Any person who has violated or continues to violate an order of the City, or who fails to comply with (a) any provision of this III chapter, or (b) any rule or order of the City, issued pursuant to this chapter, is subject to a civil penalty The amount of such civil penalty shall be up to one thousand dollars ($1,000) per violation, plus actual damages, costs and expenses incurred by the City Each week on _ {Deleted: day ) which non - compliance occurs or continues on a non - emergency basis shall be deemed a separate and distinct violation Each day on which non - compliance occurs or continues with an imminent threat to public health and safety shall be deemed a separate and distinct violation ,Civil penalties that are not paid shall constitute a lien Deleted: upon which a violation oc curs or continues shall constitute a against the responsible person's property In addition, the separateviolation Wastewater Manager may recover reasonable attorney's fees and court costs associated with the enforcement activities, including sampling and monitoring expenses B The Wastewater Manager may petition the Yakima County Superior Court to impose, assess and recover such civil penalties In determining the amount of liability, the court will 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 17 • violation, any economic benefit gained through the violation, corrective actions, the compliance history of the person and any other relevant factors C Filing suit for civil liability shall not be a prerequisite for taking any other action against a person 7 85.230 Falsifying Information Any person who knowingly makes any false statements, representations or certifications in any application, record, report, plan or other document filed or required to be maintained pursuant to this chapter, or who falsifies, tampers with or knowingly renders inaccurate any monitoring device or method required under this chapter (in addition to civil and /or criminal penalties otherwise provided by law) shall, upon conviction, be guilty of a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000) per violation per day plus costs of prosecution or imprisonment not to exceed ninety (90) days or both 7 85.240 Criminal Penalties Except as otherwise specifically provided herein, any person who willfully, knowingly, recklessly or negligently violates any provision of this chapter through any act or omission shall, upon conviction, be guilty of a gross misdemeanor, punishable by a fine of not more than five thousand dollars ($5,000) or imprisonment not to exceed one 4111 year, or by both such fine and imprisonment. Each violation and each day of violation shall constitute a separate offense 7 85.250 Remedies Nonexclusive The provisions in Sections 7 85 080 to 7 85 240 of this chapter are not exclusive remedies The City reserves the right to take any, all, or any combination of these actions against a person in violation of this chapter 7 85.260 Compensatory Action In lieu of enforcement proceedings, penalties and remedies authorized by this Ordinance, the City may impose upon a violator alternative compensatory actions, such as storm drain stenciling, attendance at compliance workshops, surface water cleanup and other measures as specifically provided for in Sections 7 85 100 to 7 85 130 18 • • 7 85.270 Compatibility with Other Permit and Ordinance p Y Requirements This ordinance is not intended to modify, abrogate or annul any other ordinance, rule, regulation, statute or other provision of law The requirements of this ordinance should be considered minimum requirements and where any provision of this ordinance imposes restrictions different from those provided in any other ordinance, rule, regulation, statute or other provision of law, the more restrictive, imposing higher protective standards for human health or the environment shall take precedence 7 85.280 Liability The requirements of this ordinance are minimum standards and compliance with the same shall not relieve a person from the duty of implementing all measures necessary to minimize pollution of receiving waters Section 2 If any section, subsection, paragraph, sentence, clause or phrase of this ordinance is declared invalid or unconstitutional for any reason, such decision shall not affect the validity of the remaining portions of this ordinance Section 3 This ordinance shall be in full force and effect thirty (30) days after its passage, approval and publication as provided by law and by the City Charter { Deleted: ¶ PASSED BY THE CITY COUNCIL, signed and approved this 21st day of July, 2009 { Deleted: _th Deleted: • Formatted: Font: 14 pt ATTEST David Edler, Mayor Formatted: Font: 14 pt City Clerk Publication Date Effective Date 19 . .. III BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT �/ Item No 7� For Meeting of July 21, 2009 ITEM TITLE. An ordinance related to Stormwater Illicit Discharge — revising two provisions in Chapter 7 85 and specifically amending Yakima Municipal Code Secs 7 85 050 and 785 170 SUBMITTED BY. Dave Zabel!, Assistant City Manager Scott Schafer, Wastewater Manager Lawrence Wafters, Senior Assistant City Attorney CONTACT PERSON/TELEPHONE. Scott Schafer/ 575 -6077 SUMMARY EXPLANATION The City Council enacted a new ordinance regulating non- stormwater discharges to the City's Municipal Storm Sewer System on July 7, 2009. At the hearing on the ordinance, the CWHBA ( "Home Builders'), through their representative, Clarence • Barnett, requested revisions of the ordinance in accordance with written comments he submitted. The City Council proceeded with adoption of the ordinance but at the same time, directed staff to review the Home Builders comments and respond to them in a report at the next Council meeting on July 21 Staff reviewed the comments and prepared a written report that is attached Staff determined there were three areas where proposed revisions were consistent with existing City ordinances and municipal law Staff also found that one other requested revision was not recommended as discussed further in the report. Resolution Ordinance X Other (Specify) Contract Mail to (name and address) Phone Funding Source APPROVED FOR SUBMITTAL` -- C Mana•er STAFF RECOMMENDATION Staff respectfully requests Council's adoption of the three revisions to the ordinance that are consistent with existing City ordinances and municipal law BOARD /COMMISSION/COMMITTEE RECOMMENDATION 0 COUNCIL ACTION