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Item 6CM E M O R A N D U M (April 21, 2009) To:Shana Yelverton, City Manager From:Robert H. Price, P.E., Public Works Director nd Subject: Ordinance No. 953, 2 Reading, Adopt Illicit Discharge Ordinance, PUBLIC HEARING Action nd Requested: Ordinance No. 953, 2 Reading, Adopt Illicit Discharge Ordinance Background Information: The Phase II Municipal Separate Storm Sewer System (MS4) regulation requires the City to develop, implement, and enforce a program to detect and eliminate illicit discharges to the MS4. The program must include an ordinance or other regulatory mechanism to eliminate illicit discharges, as well as sanctions to ensure compliance. The ordinance will prohibit the discharge or cause to discharge through specific activities or an illicit connection, any pollutant that may cause harm to the environment, that would degrade water quality, or that would impact the waters of the State. The ordinance provides penalties for illicit discharges to the MS4, however, the City intends to focus on public education when minor or incidental discharges occur. Financial Considerations: None Strategic Link: Theadoption of the Illicit Discharge Plan links to the city’s strategy map relative to the focus area providing safety and security. Effective management of the City’s water resources will insure our ability to comply with state and federal mandates with respect to the protection of the environment. Citizen Input/ Board Review: None Legal Review: The ordinance has been reviewed by the City Attorney’s office. Alternatives: The City Council may approve, deny or modify the ordinance as deemed necessary. Supporting Documents: Ordinance 953, Illicit Discharge Ordinance Staff Recommendation: Adopt Ordinance No. 953, Illicit Discharge Ordinance Staff Contacts: Robert H. Price, P.E., Director of Public Works Christi Upton, Environmental Coordinator Ordinance No. 953 ORDINANCE NO. 953 AN ORDINANCE ADDING ARTICLE IX,“PROHIBITION OF ILLICIT CONNECTIONS AND DISCHARGES INTO THE MUNICIPAL SEPARATE STORM SEWER SYSTEM” TO CHAPTER 9.5 “ENVIRONMENT” OF THE CITY OF SOUTHLAKE CODE OF ORDINANCES TO PROVIDE FOR THE REGULATION OF ILLICIT DISCHARGES TO THE MUNICIPAL SEPARATE STORM SEWER SYSTEM WITHIN THE CITY OF SOUTHLAKE; PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE OF ALL ORDINANCES; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR A PENALTY FOR VIOLATIONS HEREOF; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR PUBLICATION IN PAMPHLET FORM; PROVIDING FOR PUBLICATION IN THE MANNER AUTHORIZED BY LAW; AND PROVIDING AN EFFECTIVE DATE. WHEREAS , the City of Southlake, Texas (“the City”) is a home rule city acting under its power adopted by the electorate pursuant to Article XI, Section 5 of the Texas Constitution and Chapter 9 of the Local Government Code; and WHEREAS , the Texas Commission on Environmental Quality (TCEQ) Rules and Regulations forMunicipal Separate Storm Sewer Systems (MS4) state that a municipality must develop and implement a program to detect and eliminate illicit connections and discharges to the MS4; and WHEREAS , illicit discharges can lead to degradation of the water quality of the waterways; and WHEREAS , the City Council deems that it is necessary to adopt regulations in order to safeguardPersons, protect property, prevent damage to the environment in the City of Southlake and promote public welfare by elimination of illicit connections and discharges to the MS4. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SOUTHLAKE, TEXAS: SECTION 1 That the Code of Ordinances of the City of Southlake is hereby amended by adding Article IX to Chapter 9.5, Environment to read as follows: ARTICLE IX. PROHIBITION OF ILLICIT CONNECTIONS AND DISCHARGES INTO THE MUNICIPAL SEPARATE STORM SEWER SYSTEM. Sec. 9.5-500. Responsibility. It shall be the joint duty and responsibility of the Directors of Public Works and Planning and Development Services or their authorized representatives to administer, implement and enforce the provisions of this ordinance. Sec. 9.5-501. Applicability. This ordinance shall apply to all water entering the storm drain Page 1 Ordinance No. 953 system generated on any developed and undeveloped lands unless explicitly exempted by the Director(s). Sec. 9.5-502. Definitions and Abbreviations. Unless a provision explicitly states otherwise, the following terms and phrases, as used in this Article, shall have the meanings hereinafter designated. Best Management Practice (BMP)or Control Measure means the schedule of activity, prohibition, maintenance procedures, structural controls, and other management practices meant to prevent or reduce the discharge of Pollutants.BMPs or control measures also include treatment requirements, operating procedures, and practices to control Site runoff, spills or leaks, waste disposal, or drainage from raw material storage areas. Construction Site means any clearing, grading, and excavating that result in land disturbance. A Construction Site also includes but is not limited to any stockpiling or other activity that results in exposed soils. This includes the construction of pools and the construction and maintenance of franchise utilities such as telephone, gas, electric, etc. This excludes the disturbance of soils for emergency activities that are immediately necessary for the protection of life, property, or natural resources. Contaminatedmeans containing a harmful quantity of any substance. Contaminationmeans the presence of or entry into the public water supply system, the MS4, waters in the state, or waters of the United States of any substance which may be deleterious to the public health and or the quality of the water. Director means the Director of Public Works and/or the Director of Planning and Development Services or their authorized representatives. Facility means any facility required by the Federal Clean Water Act to have a permit to discharge storm water associated with industrial activity or construction activity. Hazardous Materials means any material, including any substance, waste, or combination thereof, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may cause, or significantly contribute to, a substantial present or potential hazard to human health, safety, property, or the environment when improperly treated, stored, transported, disposed of, or otherwise managed. Household Hazardous Waste means any solid waste generated in a household by a consumer which, except for the exclusion provided in 40 Code of Federal Regulations (CFR) §261.4(b)(1), would be classified as a hazardous waste under 40 CFR Part 261. The term has the same meaning as "hazardous household waste." This includes, but is not limited to, products, such as paints, cleaners, oils, batteries, and pesticides that contain potentially hazardous ingredients that require special care when you dispose of them. Page 2 Ordinance No. 953 Illegal Discharge means any direct or indirect non-storm water discharge to the storm drain system, except as exempted in Section 9.5-503, paragraph 2) of this Article. Illicit Connection means either of the following: 1) Any drain or conveyance, whether on the surface or subsurface, which allows an illegal discharge to enter the storm drain system including but not limited to any conveyances which allow any non-storm water discharge including sewage, process wastewater, and wash water to enter the storm drain system and any connections to the storm drain system from indoor drains and sinks, regardless of whether said drain or connection had been previously allowed, permitted, or approved by an authorized enforcement agency; or, 2) Any drain or conveyance connected from a commercial or industrial land use to the storm drain system which has not been documented in plans, maps, or equivalent records and approved by an authorized enforcement agency. Multi-Sector General Permit (MSGP) means the Texas Multi-Sector General Permit, TXR050000, its successor, or any other state regulation to control runoff from industrial Sites issued by the Texas Commission on Environmental Quality (TCEQ) or the state regulatory authority. Municipal Separate Storm Sewer System (MS4) means the separate storm sewer system owned and operated by the City of Southlake. The MS4 includes all drainage ways, storm water conveyances, bar ditches, swales, and streets owned and operated by the City of Southlake or any private drainage way that drains to or contributes flow to the public drainage system and conveys storm water discharges to the surface water of the state. Non-Storm Water Discharge means any discharge to the storm drain system that is not composed entirely of storm water. Operator means the person or persons who, either individually or taken together, meet either of the following two criteria: (1) has operational control over the facility specifications (including the ability to make or direct modifications in specifications); or (2) has day-to- day operational control over those activities at the facility necessary to ensure compliance with pollution prevention requirements and any permit conditions. Ownermeans the person who owns a facility or part of a facility. Person means any individual, partnership, co-partnership, firm, company, corporation, association, joint-stock company, trust, estate, governmental entity, or any other legal entity; or their legal representatives, agents or assigns. This definition includes all federal, state, and local governmental entities. Pollutant means anything which causes or contributes to pollution. Pollutants may include, but are not limited to: paints, varnishes, and solvents; oil and other automotive fluids; non-hazardous liquid and solid wastes and yard wastes; refuse, rubbish, garbage, litter, or Page 3 Ordinance No. 953 other discarded or abandoned objects, ordinances, and accumulations, so that same may cause or contribute to pollution; floatables; pesticides, herbicides, and fertilizers; hazardous substances and wastes; sewage, fecal coliform and pathogens; dissolved and particulate metals; animal wastes; wastes and residues that result from constructing a building or structure; and noxious or offensive matter of any kind. Premises means any building, lot, parcel of land, or portion of land whether improved or unimproved including adjacent sidewalks and parking strips. Secondary Containment means a structure designed to capture spills or leaks, as from a container or tank, and has the capacity to hold 110% (one hundred ten) percent of the original container. Site means a parcel of land or a contiguous combination thereof, where activitiesare performed as a single unified operation. Storm Water means any surface flow, runoff, and drainage consisting entirely of water from any form of natural precipitation, and resulting from such precipitation. Storm Water Pollution Prevention Plan (SWPPP) means a document which describes the Best Management Practices and activities to be implemented by a person or business to identify sources of pollution or contamination at a site and the actions to eliminate or reduce pollutant discharges to the MS4, and/or receiving waters to the maximum extent practicable. Texas Surface Water Quality Standards means the standards set forth in Title 30, Chapter 307 of the Texas Administrative Code. Texas Pollutant Discharge Elimination System (TPDES), means the permit program that controls water pollution by regulating point sources that discharge pollutants into waters in the State, delegated to the State of Texas by the EPA pursuant to 33 USC § 1342(b). Water in the State means groundwater, percolating or otherwise, lakes, bays, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Gulf of Mexico inside the territorial limits of the state, and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or nonnavigable, and including the beds and banks of all watercourses and bodies of surface water, that are wholly or partially inside or bordering the state or inside the jurisdiction of the state. 9.5-503. Storm water discharges to the Municipal Separate Storm Sewer System (MS4) allowed. 1)A person commits an offense if the person introduces or causes to be introduced into the MS4 any discharge that is not composed entirely of storm water. Page 4 Ordinance No. 953 2)It is an affirmative defense if the person introduces or causes to be introduced into the MS4 any of the following discharges that is not composed entirely of storm water: a. water line flushing (excluding discharges of hyper-chlorinated water, unless the water is first dechlorinated and discharges are not expected to adversely affect aquatic life); b. runoff or return from landscape irrigation, lawn irrigation, and other irrigation utilizing groundwater or surface water resources (not from potable water system); c. discharges from potable water sources; d. diverted stream flows; e. rising ground waters and springs; f. uncontaminated ground water infiltration; g. uncontaminated pumped ground water; h. foundation and footing drains; i. air conditioner condensation; j. water from crawl space pumps; k. individual residential vehicle washing; l. occasional discharges of vehicle wash water from fundraising events, provided best management practices are used, per Section 9.5-507; m. flows from wetlands and riparian habitats; n. dechlorinated swimming pool discharges; o. street wash water; p. discharges or flows from fire fighting activities (fire fighting activities do not include washing of trucks, runoff water from training activities, test water from fire suppression systems containing pollutants, and similar activities); q. storm water discharges authorized by, and in full compliance with, a TPDES permit, r. non-storm water discharges that are specifically listed in the TPDES Multi Sector General Permit (MSGP) and the TPDES Construction General Permit (CGP); and, s. other similar occasional incidental non-storm water discharges unless the TCEQ develops permits or regulations addressing these discharges t. other allowable non-storm water discharges listed in 40 CFR § 122.26(d)(2)(iv)(B)(1); Sec. 9.5-504. Prohibited Discharges Adversely Affecting Water Quality. 1) The following list is not considered to be all-inclusive of all prohibited discharges. Final discretion is left to the director and based on potential damage to the MS4. 2) A person commits an offense if the person introduces or causes to be introduced into the Page 5 Ordinance No. 953 MS4 any discharge that causes or contributes to causing the city to violate a water quality standard, the city’s TPDES permit, or any other discharge permit for discharges from its MS4. 3) A person commits an offense if the person dumps, spills, pumps, pours, empties, discharges, disposes of, recklessly leaks, leaches, emits or otherwise introduces or causes, allows, or permits to be introduced any of the following substances to the MS4: a. excessive amounts of sediment that would cause accumulation of sediment in the City of Southlake’sMS4or cause the MS4 to discharge excessive sediments to the Waters in the State; b. any used motor oil, antifreeze, or any other motor vehicle fluid; c. any industrial waste; d. any hazardous material or waste, including Household Hazardous Waste; e. any fire protection water containing oil or hazardous substances or materials that this code requires to be contained and treated prior to discharge, unless treatment adequate to remove pollutants occurs prior to discharge (this prohibition does not apply to discharges or flow from firefighting by the Fire Department); f. any domestic sewage or septic tank waste, grease trap waste, or grit trap waste; g. any commercial runoff or wash-down water from any animal pen, kennel or fowl or livestock containment area; h. wastewater from a commercial carwash facility; from any vehicle washing, cleaning, or maintenance at any automotive-related facility; or from any washing, cleaning or maintenance of any business or commercial or public service vehicle by any business or public entity that operates more than two (2) such vehicles; i. wastewater or wash water from operations that are contaminated with chemicals or waste products from operations; j. any filter backwash from a swimming pool or fountain, without the backwash first being filtered through a vegetated area to remove suspended solids; k. any swimming pool water containing quantities of chlorine greater than 0.1 parts per million (ppm), muriatic acid, or other chemical used in the treatment or disinfection of the swimming pool or in pool cleaning; l. any swimming pool water with a pH greater than 8 or less than 6; m. brush, leaves, grass clippings or other yard waste previously gathered for the purpose of disposal; n. excessive dust or dusty materials; Page 6 Ordinance No. 953 o. garbage, trash, debris, or rubbish; p. any substance or material that will damage, block or clog the MS4; q. any polluted liquids. 9.5-505. Prohibited Activities Adversely Affecting Water Quality. It is unlawful for any person to: 1)operate a facility that is subject to storm water discharge permitting without prior approval from the Texas Commission on Environmental Quality or other approving agency. 2)install or maintain grease or sand traps that discharge to the MS4 without prior approval from the City of Southlake; 3)permit polluted materials, hazardous materials, liquid waste, semi-liquid waste, or chemical waste or like material that would adversely affect water quality to: a. discharge to the ground, or b. discharge to or create a potential to discharge to the MS4 through any of the following activities: i)discharge of wash water containing the material, ii)dump, drain or introduce the material to the MS4, iii)store the material in such a manner that the material is exposed to the elements or runoff, or iv)dispose of the material in any area that may drain to the MS4 or dispose or store the material at any site other than one approved for that purpose; 4)permit cooling tower, compressor, or boiler blow-down that is not clean or uncontaminated to flow to the MS4; 5)permit wash water from any surface containing or having a substance on it that is a pollutant to discharge to the MS4; 6)permit unused materials from ready-mix concrete mortar, and asphalt base delivery trucks to be dumped to any area that may drain to the MS4; 7)purposefully dump, blow into, sweep into or otherwise dispose of excessive grass clippings, leaves, brush, yard waste or any rubbish or debris to the curb, gutter, storm drain, or watercourse; Page 7 Ordinance No. 953 8)permit sewage wastes to flow to any area other than a sanitary sewer or approved septic tank. Sec. 9.5-506. Pesticide and Fertilizer Regulations. 1)Any sale, distribution, application, labeling, manufacture, transportation, storage, or disposal of a pesticide, herbicide, or fertilizer must comply fully with all state and federal statutes and regulations including, without limitation, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and all federal regulations promulgated pursuant to FIFRA; Chapters 63, 75, and 76 of the Texas Agriculture Code and all state regulations promulgated pursuant to it; and any other state or federal requirement. 2)Any license, permit, registration certification, or evidence of financial responsibility required by state or federal law for sale, distribution, application, manufacturer transportation, storage, or disposal of a pesticide herbicide or fertilizer must be presented to the director for examination upon request. 3)No person shall use, or cause to be used, any pesticide or herbicide contrary to any directions for use on any labeling required by state or federal statute or regulation. 4)No person shall use or cause to be used any pesticide, herbicide, or fertilizer in any manner that the person knows or reasonably should know, is likely to cause, or does cause, a harmful quantity of the pesticide, herbicide, or fertilizer to enter the MS4. 5)No person shall dispose of, discard, store, or transport a pesticide, herbicide, or fertilizer or a pesticide, herbicide, or fertilizer container in a manner that the person knows or reasonably should know is likely to cause or does cause a harmful quantity of the pesticide, herbicide or fertilizer to enter the MS4. Sec. 9.5-507. Mobile Cleaning Operations and Occasional Vehicle Wash for Fundraising Activities . 1)Mobile cleaning operations may discharge clean, uncontaminated water to the MS4. 2)Any actual or threatened discharge of contaminated discharge to the MS4 from the operation of a mobile cleaning operation is hereby declared a nuisance. 3)A mobile cleaning operation must collect any unclean or contaminated water produced when engaging in mobile cleaning operations and disposed of said waste water in the sanitary sewer with approval from the owner of the property upon which the sewer inlet is located. 4)Contaminated water from mobile cleaning operations includes, but is not limited to: a.water containing soap, detergent, degreaser, solvent or other harmful cleaning substances, including biodegradable products; Page 8 Ordinance No. 953 b.any waste water from the wash down or other cleaning of any pavement where any spill, leak, or other release of oil, motor fuel, or other petroleum or hazardous substance has occurred, unless all harmful quantities of the released material have been previously removed; c.or waste water with excessive amounts of sediments. 5)A mobile cleaning operation must use best management practices to the maximum extent practicable to prevent contaminants from entering the MS4. 6)Occasional discharges of vehicle wash water are allowable when generated strictly for the purpose of fundraising activities. Best management practices are encouraged to minimize pollution, including, but not limited to: a.remove all trash and debris before beginning the activity; b.use soaps that are “non-toxic”, “phosphate-free”, or “biodegradable”; c.refrain from using acid wheel cleaners or other toxic or harmful substances; d.minimize the amount of soapy water entering the MS4 by shutting off water when not in use and washing on a grassy area or an area where the runoff will enter a grassy area; e.emptying buckets of soapy water in sinks or toilets; f.and clean up the site after completing the activity. Sec. 9.5-508. Prohibition of Illicit Connections. The construction, use, maintenance or continued existence of illicit connections to the storm drain system is prohibited. 1)This prohibition expressly includes, without limitation, illicit connections made in the past, regardless of whether the connection was permissible under law or practices applicable or prevailing at the time of connection. 2)A person is considered to be in violation of this Article if the person connects a line conveying sewage to the MS4, or allows such a connection to continue. Sec. 9.5-509. Industrial or Construction Activity Discharges. Any person subject to an industrial or construction activity NPDES storm water discharge permit shall comply with all provisions of such permit. This includes: Page 9 Ordinance No. 953 1)filing the appropriate information with the Texas Commission on Environmental Quality and the City of Southlake, 2)developing a Storm Water Pollution Prevention Plan (SWPPP), 3)and monitoring the Site as necessary to comply with all provisions of the permit and to ensure the prevention of any polluted discharges.. Proof of compliance with said permit may be required in a form acceptable to the Director prior to the allowing of discharges to the MS4. Sec. 9.5-510. Notification of Release and Cleanup. 1) The person in charge of any vehicle, facility, or other source of any spilling, leaking, pumping, pouring, emitting, emptying, discharging, escaping, leaching, dumping, disposing, or any other release of any of the following quantities of any of the following substances that may flow, leach, enter, or otherwise be introduced into the MS4, shall telephone and notify the Director of Public Works through the Department of Public Safety Non-Emergency contact number as soon as practicable concerning the incident: a) An amount equal to or in excess of a reportable quantity of any hazardous substance, as established under 40 CFR Part 302; b) An amount equal to or in excess of a reportable quantity of any extremely hazardous substance, as established under 40 CFR Part 355; c) An amount of oil that either (a) violates applicable water quality standards, or (b) causes a film or discoloration of the surface of the water or an adjoining shoreline or causes a sludge or emulsion to be deposited beneath the surface of the water or upon an adjoining shoreline; or d) Any harmful quantity of any pollutant. 2) The immediate notification shall include the following information: a) The identity or chemical name of the substance released, and whether the substance is an extremely hazardous substance, as established under 40 CFR Part 355; b) The exact location of the release, including any known name of the waters involved or threatened and any other environmental media affected; c) The time and duration (thus far) of the release; d) An estimate of the quantity and concentration (if known) of the substance released; e) The source of the release; Page 10 Ordinance No. 953 f) Any known or anticipated health risks associated with the release and, where appropriate, advice regarding medical attention that may be necessary for exposed individuals; g) Any precautions that should be taken as a result of the release; h) Any steps that have been taken to contain and clean up the released material and minimize its impacts; and i) The names and telephone numbers of the person or persons to be contacted for further information. 3) Within fourteen (14) days following such release, the responsible person in charge of the vehicle, facility, or other source of the release shall, unless waived by the Director of Public Works, submit a written report containing each of the items of information specified above, as well as the following additional information: a) The ultimate duration, concentration, and quantity of the release; b) All actions taken to respond to, contain, and clean up the released substances, and all precautions taken to minimize the impacts; c) Any known or anticipated acute or chronic health risks associated with the release; d) Where appropriate, advice regarding medical attention necessary for exposed individuals; e) The identity of any governmental/private sector representatives responding to the release; and f) The measures taken or to be taken by the responsible person(s) to prevent similar future occurrences. 4) Any release report required by a state or federal authority containing the information described above, shall be adequate to meet the reporting requirements for submittal to the Director of Public Works. 5) The notifications required above shall not relieve the responsible person of any expense, loss, damage, or other liability which may be incurred as a result of the release, including any liability for damage to the City, to natural resources, or to any other person or property; nor shall such notification relieve the responsible person of any fine, penalty, or other liability which may be imposed pursuant to this Article or to state or federal law. 6) Any person responsible for any release as described above shall comply with all state, federal, and any other local law requiring reporting, cleanup, containment, and any other appropriate remedial action in response to the release. Page 11 Ordinance No. 953 7) Any person responsible for a release described above shall reimburse the City for any cost incurred by the City in responding to the release. Sec. 9.5-511. Suspension of MS4 Access. Suspension due to Illicit Discharges in Emergency Situations. 1) The Director may, without prior notice, suspend MS4 discharge access to a person when such suspension is necessary to stop an actual or threatened discharge which presents or may present imminent and substantial danger to the environment, or to the health or welfare of persons, or to the MS4 or Waters in the State. If the violator fails to comply with a suspension order issued in an emergency, the authorized enforcement agency may take such steps as deemed necessary to prevent or minimize damage to the MS4 or Waters of the United States, or to minimize danger to persons. Suspension due to the Detection of Illicit Discharge. 2) Any person discharging to the MS4 in violation of this Article may have their MS4 access terminated if such termination would abate or reduce an illicit discharge. The authorized enforcement agency will notify a violator of the proposed termination of its MS4 access. The violator may petition the authorized enforcement agency for a reconsideration and hearing. Permanency of Suspension. 3)A person commits an offense if the person reinstates MS4 access to premises terminated pursuant to this Section, without the prior approval of the Director. Sec. 9.5-512. Watercourse Protection. Any person owning property through which a watercourse passes, or such person’s lessee, shall keep and maintain that part of the watercourse within the property free of trash, debris, and other obstacles that would pollute, contaminate, or retard the flow of water through the watercourse. In addition, the owner or lessee shall maintain existing privately owned structures within or adjacent to a watercourse, so that such structures will not become a hazard to the use, function, or physical integrity of the watercourse. The property owner, or such person’s lessee, shall provide protection against stream bank erosion by maintaining existing vegetation or other bank stabilization practices adjacent to watercourses. Sec. 9.5-513. Right of Entry: Inspection and Sampling. ADirector shall have the right to enter any Site discharging storm water to the Municipal Separate Storm Sewer System (MS4) or to waters in the state to determine if the Owner or Operator is complying with all requirements of this Article, and with any state or federal discharge permit, limitation, or requirement. Owners or Operators shall allow a Director ready access to all parts of the Site for the purposes of inspection, sampling, records examination and copying, and for the performance of any additional duties. Owners or Operators shall make available to a Director, upon request, any SWPPP’s, modifications thereto, self-inspection reports, monitoring records, compliance evaluations, Notices of Intent, and any other records, reports, and other documents related to compliance with this Article and with any state or federal discharge permit. Page 12 Ordinance No. 953 1)Where the Owner or Operator has security measures in force which require proper identification and clearance before entry into its premises, the Owner or Operator shall make necessary arrangements with its security guards so that, upon presentation of suitable identification, the Directors or their authorized representative(s) will be permitted to enter without delay for the purposes of performing their responsibilities. 2)ADirector shall have the right to set up on the Site, or require installation of, such devices as are necessary to conduct sampling and/or metering of the Owner or Operator’s operations. 3)ADirector may require any Owner or Operator to conduct specified sampling, testing, analysis, and other monitoring of its storm water discharges, and may specify the frequency and parameters of any such required monitoring. 4)ADirector may require the Owner or Operator to install monitoring equipment as necessary at the discharger’s expense. The Site’s sampling and monitoring equipment shall be maintained at all times in a safe and proper operating condition by the Owner or Operator at its own expense. All devices used to measure storm water flow and quality shall be calibrated to ensure their accuracy. 5)Any temporary or permanent obstruction to safe and easy access to the Site to be inspected and/or sampled shall be promptly removed by the Owner or Operator at the written or verbal request of a Director and shall not be replaced. The costs of clearing such access shall be borne by the Owner or Operator. 6)Unreasonable delays in allowing a Director access to the Site shall be a violation of this Article. Sec. 9.5-514. Search Warrants. If a Director, or his/her authorized representative, has been refused access to any part of a Site from which storm water is discharged, and he/she is able to demonstrate probable cause to believe that there may be a violation of this Article or any state or federal discharge permit, limitation, or requirement, or that there is a need to inspect and/or sample as part of a routine inspection and sampling program of the City designed to verify compliance with this Article or any order issued hereunder, or to protect the overall public health, safety, and welfare of the community, then a Director may seek issuance of a search warrant from any court of competent jurisdiction. For purposes of this Section, the City Manager, Director of Public Works, the Director of Planning and Development, the City Engineer, and the duly authorized representatives of these City departmental Directors are declared to be “health officers,” as that term is used in the Texas Code of Criminal Procedure, Article 18.05. Sec. 9.5-515. Warning Notice. Page 13 Ordinance No. 953 When a Director finds that any Person has violated, or continues to violate, any provision of this Article, or any order issued hereunder, a Director may serve upon that Person a written Warning Notice, specifying the particular violation believed to have occurred and requesting the Owner or Operator to immediately investigate the matter and to seek a resolution whereby any offending discharge will cease. Investigation and/or resolution of the matter in response to the Warning Notice in no way relieves the alleged violator of liability for any violations occurring before or after receipt of the Warning Notice. Nothing in this Section shall limit the authority of a Director to take any action, including emergency action or any other enforcement action, without first issuing a Warning Notice. Sec. 9.5-516. Notification of Violation. When a Director finds that any Person has violated, or continues to violate, any provision of this Article, or any order issued hereunder, a Director may serve upon that Person a written Notice of Violation. Within ten (10) calendar days of the receipt of this notice, an explanation of the violation and a plan for the satisfactory correction and prevention of reoccurrence thereof, to include specific required actions, shall be submitted by the alleged violator to the issuing Director. If the alleged violator denies that any violation occurred and/or contends that no corrective action is necessary, an explanation of the basis of any such denial or contention shall be submitted to the issuing Director within ten (10) calendar days of receipt of the notice. Submission of an explanation and/or plan in no way relieves the alleged violator of liability for any violations occurring before or after receipt of the Notice of Violation. Nothing in this Section shall limit the authority of a Director to take any action, including emergency action or any other enforcement action, without first issuing a Notice of Violation. A Director may enter into Consent Orders, assurances of voluntary compliance, or other similar documents establishing an agreement with any Person responsible for noncompliance with any provision in this Article or any order issued hereunder. Such documents may include specific action to be taken by the Person to correct the noncompliance within a time period specified by the document. Such documents shall have the same force and effect as the administrative orders issued pursuant to Sections 9.5-517, 9.5-518, 9.5-519, 9.5-520, and 9.5-521 of this Article and shall be judicially enforceable. Sec. 9.5-517. Show Cause Hearing. ADirector may order any Person who has violated, or continues to violate, any provision of this Article, or any order issued hereunder, to appear before the Director and show cause why a proposed enforcement action should not be taken. Notice shall be served on the alleged violator specifying the time and place for the hearing, the proposed enforcement action, the reasons for such action, and a request that the alleged violator show cause why the proposed enforcement action should not be taken. The notice of the hearing shall be served personally or by registered or certified mail (return receipt requested) at least ten (10) calendar days prior to the hearing. Such notice may be served on any authorized representative of the alleged violator. The hearing shall be conducted pursuant to the rights and procedures specified in Section 9.5-522 of this Article. A show cause hearing shall not be a bar against, or prerequisite for, taking any other action against the alleged violator. Page 14 Ordinance No. 953 Sec. 9.5-518. Compliance Orders. When a Director finds that any Person has violated, continues to violate, or threatens to violate, any provision of this Article, or any order issued hereunder, the Director may issue an order to the violator directing that the violator come into compliance within a specified time limit, prior to commencement or continuance of operation, or immediately. Compliance orders also may contain other requirements to address the noncompliance, including additional self-monitoring, and management practices designed to minimize the amount of Pollutants discharged to the MS4 and waters in the state. A compliance order may not extend the deadline for compliance established by a state or federal standard or requirement, nor does a compliance order relieve the Person of liability for any violation, including any continuing violation. Issuance of a compliance order shall not be a bar against, or a prerequisite for, taking any other action against the violator. Sec. 9.5- 519. Remediation, Abatement, and Restoration Orders. When a Director finds that a Person has violated, or continues to violate, any provision of this Article, or any order issued hereunder, and that such violation has adversely affected the MS4, or the waters in the state, the Director may issue an order to the violator directing him/her to undertake and implement any appropriate action to remediate and/or abate any adverse effects of the violation upon the MS4, or the waters in the state, and/or to restore any part of the MS4, or the waters in the state. Such remedial, abatement, and restoration action may include, but not be limited to: monitoring, assessment, and evaluation of the adverse effects and determination of the appropriate remedial, abatement, and/or restoration action; confinement, removal, cleanup, treatment, and disposal of any discharged or released pollution or contamination; prevention, minimization, and/or mitigation of any damage to the public health, welfare, or the environment that may result from the violation; restoration or replacement of City property or natural resources damaged by the violation. The order may direct that the remediation, abatement, and/or restoration be accomplished on a specified compliance schedule and/or be completed within a specified period of time. An order issued under this Section does not relieve the violator of liability for any violation, including any continuing violation. Issuance of an order under this Section shall not be a bar against, or a prerequisite for, taking any other action against any responsible party. Sec. 9.5-520. Emergency Cease and Desist Orders. When a Director finds that any Person has violated, continues to violate, or threatens to violate, any provision of this Article, or any order issued hereunder, or that the Person’s past violations are likely to recur, and that the Person's violation(s), or threatened violation(s), have caused or contributed to an actual or threatened discharge to the MS4 or waters in the state which reasonably appears to present an imminent or substantial endangerment to the health or welfare ofPersons or to the environment, the Director may issue an order to the violator directing it immediately to cease and desist all such violations and directing the violator to: 1)Immediately comply with all requirements of this Article; and Page 15 Ordinance No. 953 2)Take such appropriate preventive action as may be needed to properly address a continuing or threatened violation, including immediately halting operations and/or terminating the discharge. AnyPerson notified of an emergency order directed to it under this Section shall immediately comply and stop or eliminate its endangering discharge. In the event of a Person’s failure to immediately comply voluntarily with the emergency order, a Director may take such steps as deemed necessary to prevent or minimize harm to the MS4 or waters in the state, including immediate termination of a Site's water supply, sewer connection, or other municipal utility services. A Director may allow the Person to commence or recommence its discharge when it has demonstrated to the satisfaction of the Director that the period of endangerment has passed, unless further termination proceedings are initiated against the Person. The cease and desist order shall not be a bar against, or a prerequisite for, taking any other action against the Person under this Article. A Person that is responsible, in whole or in part, for any discharge presenting imminent endangerment shall submit a detailed written statement describing the causes of the harmful discharge and the measures taken to prevent any future occurrence, to the issuing Director within ten (10) calendar days of receipt of the emergency cease and desist order. Sec. 9.5-521. Stop Work Orders. Whenever a Director finds that any person has violated, threatens to violate, or continues to violate, any provision of this Article, or any order issued hereunder, the Director may issue a Stop Work Order to such person, and require that a copy of the Stop Work Order be posted at the location where the person is engaging in the work or activities which creates or threatens to create such violation, and the Director shall distribute the Stop Work Order to all City departments and divisions whose decisions affect such work or activities. Unless express written exception is made by the issuing Director, the Stop Work Order shall prohibit any such further work or activities at such location and shall bar any further inspection or approval by the City associated with a building permit, grading permit, or any other City approval necessary to commence or continue such work or activities. Issuance of a Stop Work Order shall not be a bar against, or a prerequisite for, taking any other action against the violator. Sec. 9.5-522. Reconsideration and Hearing. 1)AnyPerson subject to a Compliance Order under Section 9.5-518, a Remediation, Abatement, or Restoration Order under Section 9.5-519 an Emergency Cease and Desist Order under Section 9.5-520, or a Stop Work Order under Section 9.5-521of this Article may petition the issuing Director to reconsider the basis for his/her order within fifteen (15) calendar days of the affected Person’s notice of issuance of such an order. 2)Failure to submit a timely written petition for reconsideration shall be deemed to be a waiver of any further right to administrative reconsideration or review of the order. 3)In its petition, the petitioning party must indicate the provisions of the order objected to, the reasons for the objection(s), any facts that are contested, the evidence that supports the Page 16 Ordinance No. 953 petitioner’s view of the facts, any alternative terms of an order that the petitioner would accept, and whether the petitioning party requests a hearing on its petition. 4)The effect of any Compliance Order under Section 9.5-518, a Remediation, abatement, or Restoration Order under Section 9.5-519, and any Stop Work Order under Section 9.5-521 shall be stayed pending the issuing Director's reconsideration of the petition, and any hearing thereon, unless the issuing Director expressly makes a written determination to the contrary. The effectiveness of any Emergency Cease and Desist Order under Section 9.5-520 shall not be stayed pending the issuing Director’s reconsideration, or any hearing thereon, unless the issuingDirector expressly and in writing stays his/her emergency order. 5)Within thirty (30) calendar days of the submittal of a petition for reconsideration, the issuing Director shall either (1) grant the petition and withdraw or modify the order accordingly; (2) deny the petition without a hearing, if no material issue of fact is raised; or (3) if a hearing has been requested and a material issue of fact has been raised, set a hearing on the petition. 6)Written notice of any hearing set by the issuing Director pursuant to Section 9.5-522, paragraph 5) above shall be served on the petitioning party personally or by registered or certified mail (return receipt requested) at least ten (10) calendar days prior to the hearing. Such notice may be served on any authorized representative of the petitioning party. 7)The issuing Director may himself/herself conduct the hearing and take evidence, or he/she may designate any employee of the City or any specially-designated attorney or engineer to: a)issue in the name of the City notices of hearing requesting the attendance and testimony of witnesses and the production of evidence relevant to any matter involved in the hearing; b)take evidence; c)transmit a report of the evidence and hearing, including transcripts and other evidence, together with recommendations to the Director for action thereon. 8)At any hearing held pursuant to this Section, testimony taken shall be under oath and recorded. Any party is entitled to present his/her case or defense by oral or documentary evidence and to conduct such cross-examination as may be required for a full and true disclosure of the facts. A transcript will be made available to any party to the hearing upon payment of the usual charges thereof. 9)After the issuing Director has reviewed the evidence, he/she shall either (1) grant the petition; (2) deny the petition; or (3) grant the petition in part and deny it in part. The issuing Director may modify his/her order as is appropriate based upon the evidence and arguments presented at the hearing and his/her action on the petition. Further orders and directives as are necessary and appropriate may be issued. Sec. 9.5-523. Appeal. Page 17 Ordinance No. 953 AnyPerson who remains adversely affected by a Director’s order after petitioning for reconsideration pursuant to Section 9.5-522, or who is subject to an order of a Director issued following a Show Cause Hearing under Section 9.5-517 may challenge the final action of the Director in an appropriate court of competent jurisdiction. Sec. 9.5-524. Civil Remedies. 1) Whenever it appears that a Person has violated, or continues to violate, any provision of this Article that relates to: a)the preservation of public safety relating to the materials or methods used in construction of any structure or improvement of real property; b)the preservation of public health or to the fire safety of a building or other structure or improvement; c)the establishment of criteria for land subdivision or construction of buildings, including street design; d)dangerously damaged or deteriorated structures or improvements; e)conditions caused by accumulations of refuse, vegetation, or other matter that creates breeding and living places for insects and rodents; or f)point source effluent limitations or the discharge of a Pollutant, other than from a nonpoint source, into the MS4, the City may invoke Sections 54.012 - 54.017 of the Texas Local Government Code and petition the State district court or the county court at law of Tarrant County, through the City Attorney, for either the injunctive relief specified in Section 9.5-524 paragraph 2) or the civil penalties specified in Section 9.5-524 paragraph 3) below, or both the specified injunctive relief and civil penalties. 2) Pursuant to Section 54.016 of the Texas Local Government Code, the City may obtain against theOwner or Operator of a Site a temporary or permanent injunction, as appropriate, that: a) prohibits any conduct that violates any provision of this Article that relates to any matter specified in Section 9.5-524, paragraphs 1) a) through f) above; or b) compels the specific performance of any action that is necessary for compliance with any provision of this Article that relates to any matter specified in Section 9.5-524 paragraphs 1) a) through f) above. 3) Pursuant to Section 54.017 of the Texas Local Government Code, the City may recover a civil penalty of not more than $1,000 per day for each violation of any provision of this Article Page 18 Ordinance No. 953 that relates to any matter specified in Section 9.5-524, paragraphs 1) a) through e) above, and a civil penalty of not more than $5,000 per day for each violation of any provision of this Article that relates to any matter specified in Section 9.5-524 paragraph 1) f) above, if the City proves that: a) the defendant was actually notified of the provisions of this Article; and b) after the defendant received notice of the provisions of this Article, the defendant committed acts in violation of the Article or failed to take action necessary for compliance with the Article. Sec. 9.5-525. Criminal Penalties. 1)AnyPerson who has violated any provision of this Article, or any order issued hereunder, shall be strictly liable for such violation, regardless of the presence or absence of a culpable mental state, and shall, upon conviction, be subject to a fine of not more than $2000 per violation, per day. 2)AnyPerson who has knowingly made any false statement, representation, or certification in any application, record, report, plan, or other documentation filed, or required to be maintained, pursuant to this Article, or any order issued hereunder, or who has falsified, tampered with, or knowingly rendered inaccurate any monitoring device or method required under this Article shall, upon conviction, be subject to a fine of not more than $2000 per violation, per day. 3)In determining the amount of any fine imposed hereunder, the court shall 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 by the violator, the compliance history of the violator, the knowledge, intent, negligence, or other state of mind of the violator, and any other factor as justice requires. Sec. 9.5-526. Civil Suit under the Texas Water Code. Whenever it appears that a violation or threat of violation of any provision of Section 26.121 of the Texas Water Code, or any rule, permit, or order of the Texas Commission on Environmental Quality, has occurred or is occurring within the jurisdiction of the City, exclusive of its extraterritorial jurisdiction, the City, in the same manner as the Texas Commission on Environmental Quality, may have a suit instituted in a state district court through its City Attorney for the injunctive relief or civil penalties or both authorized in Sections 7.031 and 7.032 of the Texas Water Code, against the Person who committed or is committing or threatening to commit the violation. This power is exercised pursuant to Section 7.351 of the Texas Water Code. In any suit brought by the City under this Section, the Texas Commission on Environmental Quality is a necessary and indispensable party. Sec. 9.5-527. Remedies Nonexclusive. Page 19 Ordinance No. 953 The remedies provided for in this Article are not exclusive of any other remedies that the City may have under state or federal law or other City ordinances. The City may take any, all, or any combination of these actions against a violator. The City is empowered to take more than one enforcement action against any violator. These actions may be taken concurrently. Sec. 9.5-528. Performance and Maintenance Bonds. ADirector may, by written notice, order any Owner or Operator of a source of storm water discharge associated with construction or industrial activity to file a satisfactory performance and/or maintenance bond, payable to the City, in a sum not to exceed a value determined by the Director to be necessary to achieve consistent compliance with this Article, any order issued hereunder, any required Best Management Practice, and/or any SWPPP provision. The City may deny approval of any building permit, grading permit, subdivision plat, site development plan, or any other City permit or approval necessary to commence or continue construction or any industrial activity at the Site, or to assume occupancy, until such a performance and/or maintenance bond has been filed. Sec. 9.5-529. Liability Insurance. ADirector may, by written notice, order any Owner or Operator of a source of storm water discharge associated with construction or industrial activity to submit proof that it has obtained liability insurance, or other financial assurance, in an amount greater than or equal to a value determined by the Director, that is sufficient to remediate, restore, and abate any damage to the MS4, the waters in the state, or any other aspect of the environment that is caused by the discharge." SECTION 2. This ordinance shall be cumulative of all provisions of ordinances and of the Code of Ordinances of the City of Southlake, Texas, as amended, except where the provisions of this ordinance are in direct conflict with the provisions of such ordinances and such Code, in which event the conflicting provisions of such ordinances and such Code are hereby repealed. SECTION 3. It is hereby declared to be the intention of the City Council that the phrases, clauses, sentences, paragraphs, and sections of this ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section. Page 20 Ordinance No. 953 SECTION 4. All rights and remedies of the City of Southlake are expressly saved as to any and all violations of the provisions of any ordinances affecting the municipal storm drainage system which have accrued at the time of the effective date of this ordinance; and, as to such accrued violations and all pending litigation, both civil and criminal, whether pending in court or not, under such ordinances, same shall not be affected by this ordinance but may be prosecuted until final disposition by the courts. SECTION 5. The City Secretary of the City of Southlake is hereby authorized to publish this ordinance in book or pamphlet form for general distribution among the public, and the operative provisions of this ordinance as so published shall be admissible in evidence in all courts without further proof than the production thereof. SECTION 6. The City Secretary of the City of Southlake is hereby directed to publish caption, penalty clause, and effective date clause in any manner allowed by law. SECTION 7. This Ordinance shall be in full force and effect form and after its passage and publication as provided by law and it is so ordained. PASSED AND APPROVED on the 1st reading the ____ day of __________________, 2009. _____________________________ MAYOR ATTEST: ______________________________ CITY SECRETARY Page 21 Ordinance No. 953 PASSED AND APPROVED on the 2nd reading the ____ day of _________________, 2009. ______________________________ MAYOR ATTEST: ______________________________ CITY SECRETARY APPROVED AS TO FORM AND LEGALITY: _________________________________ CITY ATTORNEY Page 22