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