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.
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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.
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"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,
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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;
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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.
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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 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
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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
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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
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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.
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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.
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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."