HomeMy WebLinkAbout07/21/2009 14 Stormwater Illicit Discharge; YMC amendiment 7.85.050 and 7.85.1700
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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. �
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 7.85.170
SUBMITTED BY: Dave Zabell, Assistant City Manager
Scott Schafer, Wastewater Manager
Lawrence Watters, 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
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:
COUNCIL ACTION:
OJuly 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 violatiom fThe time
period of EACH WEEK would match the Regional Storm-water Illicit Discharge Model
Ordinance).
Staff 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.
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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
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City Staff recommends revising the current ordinance to incorporate" The Wastewater Manager
is directed to allow a reasonable period 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 - x'7.85.160 B.
The Home Builders recommend amending the ordinance in §7.85.160 B. 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 hearing. This provision, in using the
term "Shall," ensures certainty in the process and ultimately, reduces further risk 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 A
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 (1 S) days following issuance
of the... City manager... decision or action... - §7.85.170 A
The Home Builders submit that the fifteen day time period 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 filing 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.
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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
revisions concerning:
(1)The time allowed for bringing a connection into-- -
compliance (180 days) language added to clarify -
reasonable tirne granted to address illicit
discharge., -- - -- - -- - -- - - --
(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.
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.
Deleted: .
Formatted: Bullets and Numbering
Formatted: Font: 14 pt, Underline,
Font color: Dark Yellow
Formatted: Font: 14 pt, Font color:
Lime
Formatted: Font: 14 pt
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
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® 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 "CWK means the federal Water Pollution
Control Act or Water Pollution Control Act Amendments of 1972, 33
USC 1251 et seq.
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"Construction Activity" means clearing, grading and /or excavation. e
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 O
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 122.26.
"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,
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® 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,
A 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, I 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.
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"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. .
"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 S2.62 NPDES Permit;
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e 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
O 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
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construction sites, street sweeping shall be performed prior to A
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 A
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.
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® 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
O 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;
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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 A
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
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® 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.
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7.85.100 Administrative Penalties and Measures. O
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 O
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,
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® 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
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.
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A. The Wastewater Manager may order the suspension of a 4
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 O
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
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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__.,_.
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
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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
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
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A& 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
e 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 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 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
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occurs or continues shall constitute a
separate violation.
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.
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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.
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
21 sit day of July, 2009.. - - - - -_ ----- _------- - - - - --
ATTEST:
City Clerk
Publication Date:
Effective Date:
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David Edler, Mayor
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Formatted: Font: 14 pt
Formatted: Font: 14 pt
—(-a (foUJ,C%)
2-11 (D
City Council Information
July 21, 2009
Memo
To: Honorable Mayor and Members of City Council
From: Scott Schafer, Wastewater Manager
RE: Council Decision on an alternative amendment to Stormwater Illicit Discharge
Ordinance
City staff is requesting Council decision on an alternative amendment to the Stormwater
Illicit Discharge Ordinance. Further discussions with the Central Home Builders
Association (CWHBA) has lead to three revisions to the July 7'" adopted Stormwater
Illicit Discharge Ordinance. The revisions have been submitted for Council approval.
One issue remains for Council decision and is enclosed below in bold lettering within
both §7.85.160 Administrative Hearing and §7.85.170 A.
§7.85.160 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. Any person
seeking an administrative hearing based on extenuating circumstances that result
in an untimely submission of notice has the burden of proof for establishing the
delay. The City will conduct the hearing within twenty (20) days of the receipt of the
request.
§7.85.170 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. Any person seeking an administrative hearing
based on extenuating circumstances that result in an untimely submission of
notice has the burden of proof for establishing the delay.
If implemented:
• Considered only if an imminent threat to the health and safety of the community
does not exist and only under unusual circumstances
• Should an imminent threat to the health and safety of the community exist, the
City shall forgo an individual's right to seek an administrative hearing past the
allowed fifteen (15) days and proceed to correct the violation.
Legal Analysis
The alternative provision raises concerns that merit additional consideration. The
City's obligation to the entire community and its duty to apply the law uniformly are
basic elements of administrative and municipal law to discuss. The concerns include the
following:
Finality The proposed alternative provision makes it harder to
and bring finality and certainty to the implementation of the
ordinance due to the potential ambiguity of each
Certainty individual circumstance
The alternative provision may increase the City's
liability where it acts to enforce the ordinance after the
Liability existing appeal period but the owner comes forward
with a later appeal, contending the City has caused
damage (ranging from destruction of property to slander
of title)
A key purpose of the existing appeal period in the
ordinance is to impose an objective standard on the
Subjectivity process while the alternative provision places the City in
the difficult position of judging circumstances where
subjectivity is inherent
The City uses fifteen (15) days for an appeal period in
Inconsistency other ordinances and inconsistency between ordinances
is disfavored in administrative and municipal law -
The Regional Stormwater Model Ordinance contains
Conflict two different provisions requiring the violator to
respond in fifteen (15) days and thus the proposed
alternative provision is not consistent
Due Process By creating a new category of appeal periods, the
and alternative provision allows for differences that diminish
the basic standard of uniform treatment in administrative
Equal Protection and municipal law