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HomeMy WebLinkAbout07/07/2009 22 Stormwater Illicit Discharge; YMC New Chapter 7.85 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 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: 4A. Ci Maneier 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: ORDINANCE NO. 2009- 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. 1 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 the MS4 or public UICs in order to comply with requirements of the Eastern Washington Phase 11 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. 2 "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 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, 3 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. "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 at40 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; 4 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. (1) Planned discharges from potable water sources may be discharged to the MS4 or public UIC provided they are dechlorinated to a concentration of 0.1 ppm or less, pH- adjusted if necessary, and volumetrically and velocity controlled to prevent resuspension of sediments in the MS4 or public UIC. b. Swimming pool discharges. (i) Discharges from swimming pools may be discharged to the MS4 or public UIC provided they are dechlorinated to a concentration of 0.1 ppm or less, pH- adjusted and reoxygenated if necessary, and volumetrically and velocity controlled to prevent resuspension of sediments in the MS4 or public UIC. (ii) Swimming pool cleaning wastewater and filter backwash shall not be discharged to the MS4 or public UIC. c. Street and sidewalk wash water containing detergents, water used to control dust containing detergents, and routine extemal building wash down containing detergents (i) Street and sidewalk wash water, water used to control dust and routine extemal 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 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. 5 7.85.065 Suspension Due to the Detection of Illicit Discharge or Illicit Connection. A. Any person discharging or connected to the MS4 or public UIC in violation of this ordinance may have their MS4 or public UIC access terminated if such termination would abate or reduce an illicit discharge or connection. The City will notify a violator of the proposed termination of its MS4 or public UIC access. The person responsible must respond within fifteen (15) days of said notification to propose a voluntary correction in accordance with Section 7.85.090 of this ordinance. B. A person commits a violation of this ordinance if the person reinstates MS4 or public UIC access to premises terminated pursuant to this section, without the prior approval of the City. 7.85.070 Right of Entry. A. General. The Wastewater Manager, designated City employee or authorized representative is hereby authorized and directed to enforce the provisions of this title. The Wastewater Manager may employ, appoint and designate such City employees, representatives or officers to act on his behalf in the enforcement of this title under such control and supervision as he may specify. Any reference herein to the Wastewater Manager shall also refer to designated City employees and the manager's duly authorized representatives. The Wastewater Manager, designated City employee or authorized representative shall, either upon complaint or upon his own initiative, investigate potential violations of this title. It shall be the duty of all the City officers to assist the Wastewater Manager, designated City employee or authorized representative in the performance of this duty. It shall be the duty of all officers charged with the enforcement of the law to assist in the implementation of this title and its provisions. B. Entrance onto Private Property. When necessary to perform any duties under this title or to investigate upon reasonable cause or complaint the existence or occurrence of a violation of this title, the Wastewater Manager, designated City employee or authorized representative may enter onto property to inspect the same or to perform any duty imposed or authorized by this title; provided, that if such property is occupied and not a public place, the Wastewater Manager, designated City employee or authorized representative shall first present proper credentials and request permission to enter; 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 6 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 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 7 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. 7.85120 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 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 8 testing or other damages caused by the violation or discharge. Refusal to pay the assessed costs shall constitute a violation of this chapter enforce able 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 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 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. 9 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 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. 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 - stommwater 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 10 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 attomey's fees and court costs associated with the enforcement activities, including sampling and monitoring expenses. B. The Wastewater Manager may petition the Yakima County Superior Court to impose, assess and recover such civil penalties. In determining the amount of liability, the court will take into account all relevant circumstances, including, but not limited to, the extent of harm caused by the violation, the magnitude and duration of the violation, any economic benefit gained through the violation, corrective actions, the compliance history of the person and any other relevant factors. C. Filing suit for civil liability shall not be a prerequisite for taking any other action against a person. 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. 11 7.85250 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. 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 th day of July, 2009. ATTEST: David Edler, Mayor City Clerk Publication Date: Effective Date: 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 ordinance 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 dumping 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 Illicit 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 ordinance 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 eliminated." June 26, 2009 — 9:00 AM 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 Wafters, 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 Materials 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. 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 just 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 Yakima 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. C 1 arm - 2. r, e.- , : 7 / c)y _ _ 2.Z p Central ashl gton / a ' Home � nl •yers .i�.ssociatio CENTRAL WASHINGTON HOME BUILDERS ASSOCIATION Notes of Clarence Barnett for the City Council Meeting July 7, 2009 Stormwater Illicit Discharge Ordinance The Stormwater Illicit Discharge Ordinance is far reaching and there has been no noticeable Public Education or Outreach on illicit discharges. The P'ublic is not aware of what comprises an Illicit Discharge under this Ordinance. In fairness to the Public there should be considerable Public • Education and Outreach on Illicit Discharges before the effective date of the Ordinance. [30 days after passage of Ordinance.] 1. The Ordinance on pages 7 [Section 7.85.100] and 11 [Section 7.85.220 A] prescribes EACH DAY of non - compliance a separate violation. The Regional Stormwater Illicit Discharge Model Ordinance at Section 6.2.1, on page 12, has EACH WEEK after notice of violation a separate offence. The CWHBA recommends these sections in the Ordinance be amended to prescribe EACH WEEK of non - compliance a separate violation. The time period of EACH WEEK would be in keeping with the Regional Stormwater Illicit Discharge Model Ordinance. An amendment to Section 7.85.100 on page 7 would read: "Each week on which non - compliance occurs or continues shall be deemed a separate and distinct violation." An amendment to Section 7.85.220 A on page 11 would read: "Each week upon which a violation occurs or continues shall constitute a separate violation." 2. The Ordinance on page 5 [Section 7.85.050 B] states that the prohibition of connections "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." Some previously allowable connections are now illicit. 3301 W. Nob Hill Blvd. • Yakima, WA 98902 509.454.4006 • 800.492.9422 • Fax 509.454.4008 www.cwhba.org "Building and Supporting Our Communities Since 1955" The CWHBA recommends the Ordinance be amended 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. A suggested amendment to Section 7.85.050 B on page 5 would be an additional sentence that reads: "The Wastewater Manager is directed to allow a reasonable period of time to correct connections made in the past that are now illicit." [The City staff notes for the Public Meeting held on June 26 on this Ordinance, cite the Eastern Washington Phase II Municipal Stormwater Permit that allows 180 days, so hence it is not necessary to put thel 80 days in the Ordinance. The CWHBA believes any person who reads the Ordinance should know there is a reasonable time to correct the now illicit connection without having to refer to another document [the MS4 Permit] of which the average citizen has no knowledge.] 3. The Ordinance on page 9 [Section 7.85.160 B] reads: "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 CWHBA recommends the Ordinance be amended to provide for extenuating circumstances such as Illness, Hospitalization or Out of Town when a person would not be aware of the notice or not able to respond to the City's determination within 15 days. It is suggested by our Legal Counsel that by changing the word "shall" to "may" will allow for staff discretion in considering whether to allow for extenuating circumstances. [It is noted that Judges frequently allow for extenuating circumstances in criminal cases to reduce sentences] An amendment to Section 7.85,160 B on page 9 would read: "Failure to submit a timely notice may be deemed a failure to exhaust administrative remedies and may preclude further review. [ The City Staff notes for the Public Meeting held on June 26 regarding extenuating circumstances state that the Ordinance gives discretion through Section 7.85.250 and through words such as "may" and "subject to." There are no words such as "may" or "subject to" in Section 7.85.160 B. The Ordinance reads "failure to submit a timely notice SHALL be deemed a failure to exhaust administrative remedies and SHALL preclude further review." ] [Section 7.85.250 refers to Sections 7.85.080 to 7.85.240. These sections include actions such as Consent Orders, Compliance Orders, Cease and Desist Orders, Administrative Hearings, Appeals to the Council, Judicial Review, Judicial Remedies and Injunctive Relief. We are seeking to overcome the word "shall" and allow discretion by the Wastewater Manager whether to allow additional time due to extenuating circumstance so there can be an Administrative Hearing.] [Section 7.85,250 states that certain sections of the Ordinance "are not exclusive remedies" and "The City reserves the right to take any, all, or any combination of these actions against a person in violation of this chapter." ] 4. The Ordinance on page 10 [Section 7.85.170 A] reads: "The appellant must file written notice of appeal with the Clerk of the Council within fifteen [15] days following issuance of the City Manager ... decision or action . . .Failure to submit a timely notice is deemed a failure to exhaust administrative' remedies and shall preclude any further review." The CWHBA submit that the 15 days should be after receipt of the City Managers decision or action rather than following issuance of the decision or action. [If the decision is mailed, 2 to 5 days could be lost due to mailing time.] Also, the CWHBA recommends provision should be made for extenuating circumstances such as Illness, Hospitalization or Out of Town [See Notes on Number 3 above.] An amendment to Section 7.85.170 A on page 10 would read: "The appellant must file written notice of appeal with the Clerk of the City Council within fifteen (15] days following receipt of the City Manager .. . decision or action ...Failure to submit a timely notice may be deemed a failure to exhaust administrative remedies and may preclude any further review."