HomeMy WebLinkAbout2009-033 Stormwater Illicit Discharge - YMC Chapter 7.85 ORDINANCE NO 2009 -33
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
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.
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
1
t �
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 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.
"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
2
t ,
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 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, 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.
"Process Wastewater" means any water which, during 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
3
,
"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;
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,
1 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 01 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 01 ppm or less,
pH- adjusted and reoxygenated if necessary, and volumetrically and velocity controlled to
4
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
construction sites, street sweeping shall be performed prior to 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
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
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
5
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; 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 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 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
6
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.
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 day on which noncompliance occurs or
continues 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, including the installation of pretreatment technology, additional self- monitoring
7
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 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.
A. The Wastewater Manager may order the suspension of a connection after informal
notice to the person if it appears to the City 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
8
,
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.
7.85160 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 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 85170
7.85170 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 issuance 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
9
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 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 Attomey, 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 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 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 day upon which a violation occurs or continues shall constitute a
separate 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 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
10
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
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 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
7.85.270 Compatibility with Other Permit and Ordinance 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.
11
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
PASSED BY THE CITY COUNCIL, signed and approved this 7th day of July, 2009
A L A _ie ' - - - - ----- - ---- -----
--- iavid Edler t ayor
ATTEST
A o # 01 - 6 - 621.-nOrnsz,
City Clerk
Publication Date. July 10, 2009
Effective Date August 9, 2009
12
• Stormwater Illicit Discharge Ordinance
Staff Report
June 24, 2009
The Federal Water Pollution Control Act and State of Washington Water Pollution Control Law
mandate that the City of Yakima adopt an ordmance to protect waters of the state, both surface
and ground waters through the regulation of non - stormwater discharges to the City's Municipal
Separate Stormwater System (MS4) and public Underground Injection Control (UIC) wells. The
goal of the mandates simply is to protect the quality of surface and ground waters of the state and
in doing so, protect the safety of the public, preserve wildlife, and enjoyment of the state's
waterways. The manner with which we reach this goal is a bit more complicated.
Two documents published by Washington State Department of Ecology provide the mandated
framework for the attached ordinance. The documents are the Eastern Washington Phase II
Municipal Stormwater Permit and the Guidance for UIC Wells that Manage Stormwater
Contained in these documents are lists of non - stormwater discharges that are outright prohibited
or only allowed if specific conditions are met. For example, water resulting from fire fighting
operations is allowed, water from fire hydrant flushing "shall be de- chlorinated 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 " The documents also mandate the regulation of
connections, spills and illegal dumpmg to MS4 and public UIC wells The City of Yakima is
required to develop and implement an on -going program to identity and address connections or
illegal dumping that is degrading the quality of water
• In addition to the ordinance there are several other program requirements under the Elicit
Discharge Detection and Elimination section. They include the following: a map showing all
connections, outfalls, the map shall be updated periodically; develop and implement an ongoing
program to seek out illicit connections, spills or dumping to the city's stormwater system, public
education, evaluation of the program; employee training; providing a hot -line for spills;
maintaining all records; and reporting of activities in an annual report. The Regional Stormwater
Lead (RSL) has provided an Illicit Discharge Detection and Elimination Procedures document to
each agency and will be scheduling employee training in the future. The RSL also has a spill
report hot -line for telephone and computer reports.
To comply with mandates, two crews are cleaning and inventorying the city's storm drain system
and are attentive to illicit spills, dumping or connections. In addition, a program started this
spring to identify all stormwater pipelines within the city and connections from private property
to the city's storm drain lines. A crew using a "smoke machine" to trace pipeline connections and
pipeline locations is also identifying illicit connections. A letter is sent to the property owner
notifying them of the illicit connection and requesting that they take proper actions to address it.
The illicit connections to date have been inadvertent domestic waste or floor drains. The
ordinance provides a mechanism to address illicit connections, through a tiered enforcement
program. A letter is first sent to the property owner notifying them of the connection and
requesting them to properly address it. The current NPDES Permit allows the property owner
180 days to comply If the property owner does not take appropriate action or there are repeat
problems the ordinance allows for the Wastewater Manager to take additional actions. The
ordmance provides for an appeal process to city management, city council and through legal
actions. The NPDES permit requires "escalating enforcement and legal actions if the discharge is
• not elinvnated."
June 26, 2009 — 9 AM
111
Public Meeting on Illicit Discharge Ordinance
Held in Council Chambers
Attendees. Clarence Barnett - CWHBA, Joe Walsh — CWHBA, Terry Wittmeier —
Ecology, Matt Durkee — Yakima County
Staff attending: Scott Schafer, Lawrence Watters, Doug Mayo, and Shelley Willson
Scott Schafer led the meeting and review of the ordinance proceeded through a page by
page format.
Public Comment: Should the definition of Hazardous Matenals only reference those
substances regulated by EPA?
Staff Response Reference to the Department of Ecology will be added.
Public Comment: The definition of "Illicit Connection(s)" 2 — should be written to state
"has not been documented in plans, maps and/or equivalent" currently it reads "maps or
equivalent"
Staff Response. "And/or equivalent" will be added.
111
Public Comment: Several sections of the ordinance indicate that a property owner must
remedy the illicit connection or discharge. There is no reference to the maximum 180
days allowed under the permit. This should be specifically called out in those sections.
Staff Response Eastern Washington Phase II Municipal Stormwater Permit allows up to
180 days, discretion to be used by the City depending upon the circumstances but not to
exceed 180 days.
Public Comment: The definition of Pollutant should include the words "discharged into
water" The definition in the Clean Water Act contains those words at the end of the
sentence.
Staff Response "Discharged into water" will be added.
Public Comment: Will the City of Yakima be following the regulations relating to fire
hydrant discharges? Will the streets be swept prior to the flushing program? Who will
be monitoring the city to be sure that they are compliant with regulations?
Mr Wittmeier, DOE, indicated that Ecology will be monitoring the agencies for
compliance with regulations. Yakima County is also preparing operation and
maintenance manuals and will be conducting employee training.
• Public Comment: The Right of Entry Section is very well written and thoroughly
addressed previous concerns. The term "any" person on page 12 should indicate that it is
an "authorized person ", or a person with a "legitimate reason" to enter
Staff Response The word "authorized" will be added.
Public Comment. The ordinance does not specify how "days" are counted. Are
weekends and holidays included in the count, or is it dust working days?
Staff Response Legal indicated that the law operates using "calendar days."
Public Comment. There does not appear to be any discretion available in the ordinance
to address extenuating circumstances. Examples were given such as hospitalization,
death or out -of- country The property owner would be penalized by fines.
Staff Comment: The ordinance addresses City of Yaluma management discretion
through Section 7 85.250 and through word choices such as "may" and "subject to" This
allows the manager to review the circumstances of the illicit discharge and determine
what action is necessary to remedy the problem. The goal is to remove hazards from
water sources and educate the public to address water pollutants.
Public Comment: Section 7 85 100 appears to remove all rights of an individual and
• could result in city employees taking a heavy hammer approach to enforcement. It
appears to eliminate appeal processes.
Staff Comment. No rights are removed. It will be at the discretion of the City based on
circumstances the severity of enforcement taken if any
Public Comment: Section 7 85.200 — Judicial Remedies section should include specifics
as to when this level of action would occur The paragraph negates the other sections.
Staff Comment. As is noted in the section — this remedy may be taken. It is not a
requirement that the manager address every illicit discharge through judicial remedies. It
is a tool available if needed by the City There are checks and balances in the City's
management structure to prevent an employee from using this action unnecessarily
•
BUSINESS OF THE CITY COUNCIL
YAKI A, WASHINGTON
AGENDA STATEMENT
Item No 2_7_
For Meeting Of July 7, 2009
ITEM TITLE. An Ordinance related to Stormwater Illicit Discharge — creating a new
Chapter 7 85
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
Federal and State laws mandate that the City of Yakima adopt an ordinance to regulate non -
stormwater discharges to the City's Municipal Separate Storm Sewer System (MS4) and
public Underground Injection Control (UIC) wells. The mandated Stormwater Illicit Discharge
regulations are contained in the Eastern Washington Phase II Municipal Stormwater Permit
Section 5B.3 and Washington Department of Ecology's Guidance for UIC Wells that Manage
Stormwater The attached staff report briefly outlines requirements set forth in these two
documents.
• The Regional Stormwater Policy Group drafted a model Illicit Discharge Ordinance and held a
public meeting on May 19, 2009 to hear public comments. Each agency was instructed by the
Regional Stormwater Lead (RSL) to modify the model ordinance as needed to address
enforcement protocols and formatting. The RSL has reviewed the City of Yakima's ordinance
for compliancy with federal and state requirements. The City of Yakima held its own public
meeting on June 26, 2009 to hear public comments on the proposed Illicit Discharge
Ordinance. Public comments with staff responses is attached for Council information.
The City of Yakima's NPDES permit requires that this ordinance be effective by August 16,
2009
Resolution Ordinance X Other (Specify) Staff Report and June 26 Public
Meeting Comments
Contract Mail to (name and address).
Phone.
Funding Source
APPROVED FOR SUBMITTAL. Ci Mana•er
STAFF RECOMMENDATION Staff respectfully requests Council's adoption of Chapter
7 85, a new chapter related to the Illicit Discharge to the City's stormwater systems.
• BOARD /COMMISSION RECOMMENDATION
COUNCIL ACTION: