019-09 - Ordinance - New Chapter 15.30 Illicit Discharge Detection and EliminationIntroduced by: Asst City Engineer
Requested by: Asst City Engineer
Drafted by: Asst City Engineer
Reviewed by: City Attorney
First Reading: July 28, 2009
Second Reading: August 11, 2009
Adopted: August 11, 2009
ORDINANCE NO. oig-og
AN ORDINANCE OF THE CITY OF PORT ORCHARD,
WASHINGTON, PROVIDING FOR THE PROTECTION AND
ENHANCEMENT OF THE WATER QUALITY OF
WATERCOURSES AND WATER BODIES THROUGH THE
REGULATION OF NON -STORM WATER DISCHARGES TO THE
STORM DRAIN SYSTEM IN COMPLIANCE WITH THE
REQUIREMENTS OF THE CITY S NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM (NPDES) PERMIT; AND
ADDING A NEW CHAPTER 15.30 "ILLICIT DISCHARGE
DETECTION AND ELIMINATION" TO THE PORT ORCFIARD
MUNICIPAL CODE.
WHEREAS, the City of Port Orchard desires to reduce the public health and economic
impacts of illicit discharges to the City's stormwater system and receiving waters, which includes
creeks, streams, and Sinclair Inlet; and
WHEREAS, the City of Port Orchard desires to reduce the impact of pollutants on the
wildlife and aquatic life associated Mth the receiving waters; and
WHEREAS, the City of Port Orchard is subject to the requirements of the Western
Washington Phase II Municipal Stormwater Permit issued by the Washington State Department
of Ecology which requires the City to adopt regulations to prohibit certain discharges into the
City's stormwater system and encourages additional provisions to protect all surface and
groundwater within the City;
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF PORT
ORCHARD, WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Title 15 of Port Orchard Municipal Code is hereby amended by addition of a
new Chapter 15.30 "ILLICIT DISCHARGE DETECTION AND ELIMINATION" with sections as
follows herein:
15.30 ILLICIT DISCHARGE DETECTION AND ELIMINATION
Section 15.30.010 Purpose
Section 15.30.02o Definitions
Section 15.30.030 Applicability
Section 15.30.04o Administration
Section 15.30.050 Compliance required
Section 15.30.o6o Minimum standards
Section 15.30.07o Discharge prohibitions
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Section 15.30.o8o Suspension of MS4 access
Section 15.30.090 Industrial or construction activity discharges
Section 15.3o.1oo Requirement to prevent, control, and reduce stormwater pollutants by
the use of Best Management Practices (BMPs)
Section 15.30.110 Watercourse protection
Section 15.30.12o Notification of illicit discharges
Section 15.30.130 Inspection and investigation
Section 15.30.14o Enforcement and penalties
Section 15.30.15o Appeals
Section 15.30.16o Records retention
Section 15.30.170 Construction -Intent
SECTION 2. A new section of Chapter 15.30 of the Port Orchard Municipal code is
added, as follows:
15.30.010 Purpose.
The purpose of this Chapter is to provide for the health, safety, and general welfare of the
citizens of Port Orchard and to protect and enhance the water quality of watercourses
and water bodies through the regulation of non -storm water discharges to the storm
drain system to the maximum extent practicable as required by federal and state law.
This Chapter is established in compliance with the Federal Clean Water Act (Title 33
United States Code §1251 et seq.) and the requirements of the City's National Pollutant
Discharge Elimination System (NPDES) permit. The objectives of this Chapter are:
A. To regulate the contribution of pollutants to the municipal separate storm sewer
system (MS4) by stormwater discharges by any user;
B. To prohibit illicit connections and discharges to the municipal separate storm sewer
system;
C. To establish legal authority to carry out all inspection, surveillance and monitoring
procedures necessary to ensure compliance with this Chapter; and
D. To establish enforcement processes and penalties for violations of this Chapter.
SECTION 3. A new section of Chapter 15.30 of the Port Orchard Municipal code is
added, as follows:
15.30.02o Definitions.
The terminology in this Chapter shall have the meanings described as follows:
1. "AKART" means all known available and reasonable methods of prevention,
control, and treatment.
2. "Best Management Practices (BMPs)" means schedules of activities, prohibitions
of practices, general good housekeeping practices, pollution prevention and
educational practices, maintenance procedures, and other management practices
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to prevent or reduce the discharge of pollutants directly or indirectly to
stormwater, receiving waters, or stormwater conveyance systems. BMPs also
include treatment practices, operating procedures, and practices to control site
runoff, spillage or leaks, sludge or water disposal, or drainage from raw materials
storage.
3. "City" means Port Orchard, Washington, or as indicated by the context, the
Public Works Director, or other authorized representative of the governmental
authority of the City of Port Orchard.
4. "Director" means the Public Works Director or designee(s).
5. "Discharge" means to throw, drain, release, dump, spill, empty, emit, or pour
forth any matter or to cause or allow matter to flow, run, or seep from land or to
be thrown, drained, released, dumped, spilled, emptied, emitted, or poured into
water.
6. "Ground water" means water in a saturated zone or stratum beneath the surface
of the land or below a surface water body.
"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.
"Illicit connection" means (1) any drain or conveyance, whether on the surface or
subsurface, which allows an illicit 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 the City; or (2) any drain or
conveyance connected from a residential, commercial or industrial land use to
the storm drain system which has not been documented in plans, maps, or
equivalent records and approved by the City.
q. "Illicit discharge' means any direct or indirect non -storm water discharge to a
municipal separate storm sewer or to surface or ground water that is not
composed entirely of storm water, except discharges pursuant to an NPDES
permit (other than the NPDES permit for discharges from the municipal separate
storm sewer), discharges resulting from fire fighting activities, and those
discharges expressly allowed conditionally by this Chapter.
io. "Industrial waste" means any liquid, gaseous or solid substance or a combination
thereof which is an undesired by-product waste resulting from any process of
industry, manufacturing, trade or business or from the development or recovery
of any natural resources, except garbage.
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ir. "Municipal separate storm sewer system (MS4)" means a conveyance or system
of conveyances which is intended to convey only storm water (including roads
with drainage systems, municipal streets, catch basins, curbs, gutters, ditches,
man-made channels, or storm drains) and which are: (i) owned or operated by
the City of Port Orchard; (2) designed or used for collecting or conveying
stormwater; (3) are not part of a Publicly Owned Treatment Works (any device or
system used in treatment of municipal sewage or industrial wastes of a liquid
nature which is publicly owned); and (4) are not a combined sewer (a system that
collects sanitary sewage and stormwater in a single sewer system).
12. "National Pollutant Discharge Elimination System (NPDES) Stormwater
Discharge Permit" means a permit issued by the Environmental Protection
Agency (EPA) or by the Washington State Department of Ecology that authorizes
the discharge of pollutants to waters of the United States, whether the permit is
applicable to an individual, group, or general area -wide basis.
13. "Non-stormwater discharge" means any discharge to the storm drain system that
is not composed entirely of storm water.
14. "Owner" or "Person" includes any individual, association, organization,
partnership, firm, corporation, business, leasee, or other entity recognized by
law; acting as either the owner or as the owner's agent, and/or having
responsibility, charge, and/or control over any property that is subject to the
provisions of this Chapter.
15. "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 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.
16. "Pollution" means such contamination, or other alteration of the physical,
chemical, or biological properties, of any waters of the City, State, or United
States, including change in temperature, taste, color, turbidity, or odor of the
waters, or such discharge of any liquid, gaseous, solid, radioactive, or other
substance into any waters as will or is likely to create a nuisance or render such
waters harmful, detrimental, or injurious to the public health, safety, or welfare,
or to domestic, commercial, industrial, agricultural, recreational, or other
legitimate beneficial uses, or to livestock, wild animals, birds, fish, or other
aquatic life.
17. "Premises" means any building, lot, parcel of land, or portion of land whether
improved or unimproved.
18. "Sanitary sewer" means a conveyance system which transports sewage and to
which storm, surface and ground waters are not intentionally admitted.
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i9. "Sewage" means a combination of the water -carried wastes from residences,
business buildings, institutions, and industrial establishments, together with
such ground, surface and storm water as may be inadvertently present. The
admixture of sewage with industrial wastes as defined above or other wastes also
shall be considered "Sewage" within the meaning of this definition.
20. "Stop Work Order" immediate order posed at site halting all operations except
those required to correct improper activities.
21. "Storm drainage system or storm drain system" means any publicly -awned
facility, including the City's municipal separate storm sewer system, by which
storm water is collected and/or conveyed, including but not limited to any roads
with drainage systems, municipal streets, gutters, curbs, inlets, piped storm
drains, pumping facilities, retention and detention basins, natural and human -
made or altered drainage channels, reservoirs, and other drainage structures.
22. "Storm water" or "stormwater" means any surface flow, runoff, and drainage
consisting entirely of uncontaminated water from any form of natural
precipitation, including snowmelt, during and following precipitation, and
resulting from such precipitation that meets the non -pollutant requirements.
23. "Stormwater Pollution Prevention Plan" or "SWPPP" means a document which
describes the Best Management Practices and activities to be implemented by a
person to identify sources of pollution or contamination at a premises and the
actions to eliminate or reduce pollutant discharges to stormwater, stormwater
conveyance systems, and/or receiving waters to the maximum extent practicable.
24. "Wastewater" means any water or other liquid, other than uncontaminated storm
water, discharged from a facility.
25. "Watercourse" means a depression formed by runoff moving over the surface of
the earth; any natural or artificial channel through which water flows; a lake,
river, creek, stream, wash, arroyo, channel or other topographic feature on or
over which waters flow at least periodically.
26. "Waters of the State" means lakes, rivers, ponds, streams, inland waters,
underground waters, salt waters and all other surface waters and watercourses
within the jurisdiction of the State of Washington as defined in RCW 90.48.
SECTION a. A new section of Chapter 15.30 of the Port Orchard Municipal code is
added, as follows:
15.30.03o Applicability.
This Chapter shall apply to all water entering the stormwater drainage system and waters
of the state within the City's jurisdiction.
SECTION 6. A new section of Chapter 15.30 of the Port Orchard Municipal code is
added, as follows:
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15.30.04o Administration.
The Public Works Director or designee shall administer, implement, and enforce the
provisions of this Chapter. The Director shall have the authority to develop and
implement procedures to administer and enforce this Chapter.
SECTION 6. A new section of Chapter 15.30 of the Port Orchard Municipal code is
added, as follows:
15.30.050 Compliance required.
Property owners are responsible for the maintenance, operation and repair of
stormwater systems and BMPs within their property. Property owners shall maintain,
operate and repair these facilities in compliance with the requirements of this Chapter
and the City's adopted codes and manuals.
SECTION 7. A new section of Chapter 15.30 of the Port Orchard Municipal code is
added, as follows:
15.30.o6o Minimum Standards.
The standards set forth herein and promulgated pursuant to this Chapter are minimum
standards; therefore, this Chapter does not intend nor imply that compliance by any
person will ensure that there will be no contamination, pollution, nor unauthorized
discharge of pollutants.
SECTION 8. A new section of Chapter 15.30 of the Port Orchard Municipal code is
added, as follows:
15.30.07o Discharge prohibitions.
A. Prohibition of Illicit Discharges. It is unlawful for any person to throw, drain, or
otherwise discharge, or cause or allow others under its control to throw, drain or
otherwise discharge any materials other than stormwater into the municipal
storm drain system and/or surface and ground waters of the City. Prohibited
materials include, but are not limited to, pollutants or waters containing any
pollutants, that cause or contribute to a violation of applicable water quality
standards. The commencement, conduct, or continuance of any illicit discharge
to the storm drain system is prohibited.
Examples of pollutants include, but are not limited to, the following: trash or
debris; solid waste; construction materials; petroleum products including, but
not limited to oil, gasoline, grease, fuel oil, heating oil; antifreeze and other
automotive products; fixed and mobile vehicle washes; metals in either
particulate or dissolved form in excess of naturally occurring amounts;
flammable or explosive materials; radioactive materials; batteries; acids, alkalis,
or bases; paints, stains, resins, lacquers, or varnishes; degreasers or solvents;
drain cleaners; commercial and household cleaning materials; carpet cleaning
wastes; pesticides, herbicides, or fertilizers; steam cleaning wastes; laundry
waste; soaps, detergents, or ammonia; swimming pool or spa filter backwash
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(diatomaceous earth); swimming pool cleaning wastewater; chlorine, bromine,
and other disinfectants; heated water; chlorinated swimming pool or hot tub
water; human and animal wastes; domestic or sanitary sewage; recreational
vehicle waste; animal carcasses; food and food wastes; yard waste; bark and other
fibrous materials (does not include large woody debris in approved restoration
projects); collected lawn clippings, leaves, or branches; wastes associated with
building construction; concrete and concrete by-products; silt, sediment,
including dirt, sand, and gravel; dyes and ink (except as stated in Port Orchard
Municipal Code 15.30.070(B)(5)); chemicals not normally found in
uncontaminated water; any other process -associated discharge except as
otherwise allowed in this section; and any hazardous material or waste not listed
above.
B. Conditional Discharges. The following types of discharges shall not be considered
illicit discharges for the purposes of this Chapter if they meet the stated
conditions or unless the Director determines that the type of discharge, whether
singly or in combination with others, is causing or is likely to cause pollution of
surface water or groundwater:
1. Discharges from potable water sources, including water line flushing, hyper -
chlorinated (>romg/liter chlorine) water line flushing, fire hydrant system
flushing, and pipeline hydrostatic test water. Planned discharges shall be de -
chlorinated to a concentration of o.1 ppm or less, pH -adjusted if necessary, and
volumetrically and velocity controlled to prevent re -suspension of sediments in
the stormwater system;
2. Discharges from lawn watering and other irrigation runoff; however, these
shall be minimized through water conservation efforts;
3. De -chlorinated spa or swimming pool discharges. The discharges shall be de -
chlorinated to a concentration of o.1 ppm or less, pH -adjusted and re -oxygenized
if necessary, and volumetrically and velocity controlled to prevent re -suspension
of sediments in the stormwater system. Swimming pool cleaning wastewater and
filter backwash shall not be discharged to the storm drainage system;
4. Street and sidewalk wash water, water used to control dust, and routine
external building wash down that does not use detergents. The amount of street
wash, dust control, and building wash water shall be minimized. At active
construction sites, street sweeping must be performed prior to washing the
street;
5. Dye testing with verbal notification to the City a minimum of 24 hours prior to
the time of the test.
6. Non-stormwater discharges covered by another NPDES permit, waiver, or
waste discharge order issued to the discharger and administered under the
authority of the Environmental Protection Agency or Washington State
Department of Ecology, provided that the discharger is in full compliance with all
requirements of the permit, waiver, or order and other applicable laws and
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regulations; and provided, that written approval has been granted for any
discharge to the storm drain system;
7. Discharges resulting from maintenance, repair, or operation of firefighting
equipment and facilities that are not directly associated with public fire fighting,
including discharges from public fire fighting training exercises, unless City -
approved best management practices are implemented.
8. Other non-stormwater discharges shall be in compliance with the
requirements of a stormwater pollution prevention plan reviewed and approved
by the City, which addresses control of such discharges by applying AKART to
prevent contaminants from entering surface or ground water.
C. Allowable Discharges. The following types of discharges shall not be considered
illicit discharges for the purposes of this Chapter if they do not contain pollutants
or unless the Director determines that the type of discharge, whether singly or in
combination with others, is causing or is likely to cause pollution of surface water
or groundwater.
r. Diverted stream flows, rising ground waters, uncontaminated ground water
infiltration (as defined in Title 40 of the Code of Federal Regulations: 40 CFR
35.2005(20)), uncontaminated pumped ground water, foundation drains, air
conditioning condensation, irrigation water from agricultural sources that is
commingled with urban stormwater, springs, water from crawl space pumps,
footing drains, flows from riparian habitats and wetlands, and discharges from
emergency fire fighting activities in accordance with "S2. Authorized Discharges,"
of the City's NPDES permit.
2. Discharges specified in writing by the City as being necessary to protect public
health and safety.
3. If a person can demonstrate that there are no additional pollutants being
discharged from the premises above the background conditions of the water
entering the site, that person shall not be in violation of subsection A of this
section.
D. Prohibition of Illicit Connections.
r. The construction, use, maintenance or continued existence of illicit
connections to the storm drain system is prohibited. 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. Any connection identified by the Director that could convey anything not
composed entirely of surface and stormwater directly into municipal drainage
facilities is considered an illicit connection and is prohibited with the following
exceptions: connections conveying allowable discharges or connections
conveying discharges pursuant to an NPDES permit or a State Waste Discharge
Permit.
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3. Illicit connections must be disconnected and redirected, if warranted, to an
approved onsite wastewater management system or the sanitary sewer system
upon approval of the City.
4. Any drain or conveyance that has not been documented in plans, maps or
equivalent, and which is connected to the storm sewer system, shall be located by
the owner or occupant of that property upon receipt of written notice of violation
from the City requiring that such locating be completed. Such notice will specify a
reasonable time period within which the location of the drain or conveyance is to
be determined, that the drain or conveyance be identified as storm sewer,
sanitary sewer, or other, and that the outfall location or point of connection to the
storm sewer system, sanitary sewer system or other discharge point be identified.
Results of these investigations are to be documented and provided to the City.
E. Prohibition of Stormwater Discharge to Sanitary Sewer. Stormwater shall not be
discharged into the sanitary sewer without written permission to do so from the
City of Port Orchard.
F. Prohibition of Waste Disposal. No person shall throw, deposit, leave, maintain, or
keep in or upon any public or private property, the stormwater drainage system,
or waters of the state, any refuse, rubbish, garbage, litter, or other discarded or
abandoned objects, articles, or accumulations that may cause or contribute to
pollution. Wastes deposited in proper non -leaking waste receptacles for the
purposes of collection are exempt from this prohibition.
SECTION 9. A new section of Chapter 15.30 of the Port Orchard Municipal code is
added, as follows:
15.30.080 Suspension of MS4 access.
A. Suspension due to Illicit Discharges in Emergency Situations. The City 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
public health or welfare, or to the MS4, or Waters of the State. If the violator fails
to comply with a suspension order issued in an emergency, the City may take
such steps as deemed necessary to prevent or minimize damage to the MS4 or
Waters of the State, or to minimize danger to persons.
B. Suspension due to the Detection of Illicit Discharge. The City may terminate a
person's MS4 access if such termination would abate or reduce an illicit
discharge. The City will notify a violator of the proposed termination of its MS4
access. The violator may appeal such termination in accordance with Port
Orchard Municipal Code 15.30.150. No person shall reinstate MS4 access to
premises terminated pursuant to this Section, without the prior approval of the
City.
SECTION io. A new section of Chapter 15.30 of the Port Orchard Municipal code is
added, as follows:
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15.30.090 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. The City may require
proof of compliance with said permit in a form acceptable to the City prior to allowing
discharges to the MS4.
SECTION u. A new section of Chapter 15.30 of the Port Orchard Municipal code is
added, as follows:
15.3o. too Requirement to prevent, control, and reduce storm water
pollutants by the use of Best Management Practices (BMPs).
A. General. The owner or operator of a commercial or industrial establishment shall
provide, at its own expense, reasonable protection from accidental discharge of
prohibited materials or other wastes into the municipal storm drain system,
watercourses, surface water, or ground water through the use of structural and
non-structural BMPs which have been approved by the City for any activity,
operation, or facility which may cause or contribute to pollution or contamination
of storm water, the storm drain system, or waters of the State. Further, any
person responsible for a property or premise, which is, or may be, the source of
an illicit discharge, may be required to implement, at said person's expense,
additional structural and non-structural BMPs to prevent the further discharge of
pollutants to the MS4. Compliance with all terms and conditions of a valid
NPDES permit authorizing the discharge of storm water associated with
industrial activity, to the extent practicable, shall be deemed in compliance with
the provisions of this section. These BMPs shall be part of a stormwater pollution
prevention plan as necessary for compliance with requirements of the NPDES
permit.
B. BMP descriptions. Approved BMPs are described in the stormwater management
manual(s) adopted by the City. The manual(s) describes the types of regulated
activities, the types of contaminants generated by each activity, the contaminant's
affect on water quality, the required source control BMPs, and the available
treatment BMPs. The manual(s) includes information on design, maintenance,
and allowable use of additional or alternative BMPs.
C. Priority of BMP implementation. In applying the BMP manual, the Director shall
first require the implementation of source control BMPs unless the BMP manual
specifically requires treatment BMPs. If source control BMPs (or treatment BMPs
if required by the BMP manual) do not prevent contaminants from entering
surface and stormwater or groundwater, the Director may require
implementation of additional source control BMPs and/or treatment BMPs
according to AKART.
D. Prevention of pollution of surface and groundwater. BMPs shall be applied as
required herein, so that when all appropriate combinations of individual BMPs
are utilized, pollution of surface or groundwater is prevented. If all BMPs
required herein, or by the Director are applied, and pollution still occurs, the
discharger shall modify existing practices or apply further water pollution control
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measures, as specified by the Director. In the absence of implementation of
applicable BMPs, the Director shall be authorized to conclude that individual
activities are causing pollution in violation of this article, and shall be authorized
to enforce this Chapter accordingly.
SECTION 12. A new section of Chapter 15.30 of the Port Orchard Municipal code is
added, as follows:
15.30.110 Watercourse protection.
Every 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, excessive vegetation, and other obstacles that would pollute, contaminate,
or significantly 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.
SECTION 13. A new section of Chapter 15.30 of the Port Orchard Municipal code is
added, as follows:
15.30.12o Notification of illicit discharges
A. Notwithstanding other requirements of law, as soon as any person, including any
person responsible for a facility or operation, or responsible for emergency
response for a facility or operation, who has information of arty known or
suspected release of materials which are resulting, or may result in, illicit
discharges or pollutants discharging into storm water, the storm drain system, or
waters of the State, said person shall take all necessary steps to ensure the
discovery, containment, and cleanup of such release.
1. In the event of such a release of hazardous materials, said person shall
immediately notify emergency response agencies of the occurrence via emergency
dispatch services (911) and the Public Works Department (360-876-4991)•
2. In the event of a release of non -hazardous materials, said person shall notify
the Public Works Department in person or by phone (36o-876-4991) or facsimile
(360-876-498o) within forty-eight (48) hours after said discharge. Notifications
in person or by phone shall be confirmed by written notice addressed and mailed
to the City within three business days of the phone notice.
B. If the discharge of prohibited materials emanates from a commercial or industrial
establishment, the owner or operator of such establishment shall also retain an
on -site written record of the discharge and the actions taken to prevent its
recurrence. Such records shall be retained in accordance with Port Orchard
Municipal Code 15.3o.16o.
SECTION 14. A new section of Chapter 15.30 of the Port Orchard Municipal code is
added, as follows:
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15.30.130 Inspection and investigation.
A. Authorization.
1. Whenever implementing the provisions of this Chapter or whenever there
is cause to believe that a violation of this Chapter has been or is being
committed, the Director is authorized to inspect during regular working
hours and at other reasonable times all stormwater facilities within the
City of Port Orchard to determine compliance with the provisions of this
Chapter.
2. The Director may observe BMPs or examine and/or sample surface and
stormwater or groundwater as often as maybe necessary to determine
compliance with this Chapter. The Director is further authorized, as set
forth in subsection B and D below, to enter in or upon any public or
private property for the purpose of inspecting and investigating
conditions relating to the pollution of, or the possible pollution of, surface
and/or groundwater. Whenever an on -site inspection of a property is
made, the findings shall be documented. A copy of the inspection findings
shall be furnished to the owner or the person in charge of the property
after the conclusion of the investigation.
B. Right -of -entry. The Director is authorized to enter at all reasonable times in or
upon any property, public or private, for the purpose of inspecting and
investigating any conditions relating to the provisions of this Chapter or any
regulation adopted under this Chapter, provided that the City shall first obtain
from the owner or person responsible for such premises, permission to enter. If
entry is refused, the City shall have recourse to every remedy provided by law to
secure entry. The right -of -entry is subject to the provisions of subsection D
below.
1. If a discharger has security measures in force which require proper
identification and clearance before entry into its premises, the discharger
shall make the necessary arrangements to allow access to the Director.
2. Any temporary or permanent obstruction to safe and easy access to the
facility to be inspected and/or sampled shall be promptly removed by the
operator at the written or oral request of the City and shall not be
replaced. The costs of clearing such access shall be borne by the facility
operator.
3. No person who is the owner or operator of a facility with an NPDES
permit to discharge storm water associated with industrial activity shall
deny the City reasonable access to the permitted facility for the purpose of
conducting any activity authorized or required by this Chapter.
Unreasonable delays in allowing the City access to a permitted facility is a
violation of a stormwater discharge permit and of this Chapter.
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C. Obstructing the Director. No person shall obstruct the Director in the
performance of his or her official duties in the enforcement of this chapter,
including but not limited to:
1. Intentional use of, or threat to use, force to obstruct a person he or she
knows, or should reasonably know, is the Director and is performing his
or her official duties in the enforcement of storm water system
regulations; or
2. Acting in a manner that he or she knows, or should reasonably know, will
interfere with or obstruct a person known to be, or who should reasonably
be known to be, responsible for the enforcement of storm water system
regulations; or
3. Refusing to identify himself or herself and give his or her current address
to the Director for the enforcement of this Chapter pursuant to an
investigation of a violation upon request by the Director.
D. Inspection requirements. The Director is authorized to develop inspection
procedures and requirements for all stormwater facilities in the City of Port
Orchard. In addition to any procedures for inspections developed by the Director,
the following shall apply:
i. Prior to making any inspections on private property, the Director shall
present identification credentials, state the reason for the inspection, and
request entry.
2. If the property, or any building or structure on the property, is
unoccupied, the Director shall first make a reasonable effort to locate the
owner or other person(s) having charge or control of the property or
portions of the property and request entry.
3. Unless entry is consented to by the owner or person(s) in control of the
property, or portion of the property, or unless conditions are reasonably
believed to exist in the opinion of the Director which create immediate
danger to public health or safety, the Director shall obtain a search
warrant or other remedy, prior to entry, as authorized by the laws of the
State of Washington.
4. Nothing in this section prevents the Director from inspecting a
stormwater system without consent of the property owner or a search
warrant, provided the inspection can be conducted while remaining on
public property or other property on which permission to enter is
obtained.
E. Monitoring, sampling, and analysis.
1. Whenever the Director determines that any person has violated or is violating
the provisions of this Chapter, the Director may require the person
responsible for the violation to sample and analyze any discharge, surface
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water, stormwater, groundwater, and/or sediment, in accordance with
sampling and analytical procedures or requirements determined by the
Director. When the Director has reason to believe that a connection is
resulting in an illicit discharge, the Director may sample and analyze the
discharge and recover the costs from a person in an enforcement proceeding.
When the discharge is likely to contain illicit discharges on a recurring basis,
the Director may conduct, or may require the person to conduct, ongoing
monitoring (including sampling and testing) at the person's expense.
2. The City shall have the right to setup on any facility such devices as are
necessary in the opinion of the City to conduct monitoring and/or sampling of
the facility's stormwater discharge.
The City has the right to require the discharger to install monitoring
equipment as necessary. The facility's sampling and monitoring equipment
shall be maintained at all times in a safe and proper operating condition by
the discharger at its own expense. When monitoring is required, the
discharger shall sample and analyze any discharge, surface and stormwater,
groundwater, and/or sediment, in accordance with sampling and analytical
procedures or requirements determined by the Director. A copy of the
analysis shall be provided to the Director.
SECTION is. A new section of Chapter 15.30 of the Port Orchard Municipal code is
added, as follows:
15.30.140 Enforcement and penalties.
A. Authorization. The Director is authorized to enforce this Chapter and any permit,
order or approval issued pursuant to this Chapter, against any violation or
threatened violation thereof.
B. Compliance. The Director shall attain compliance with this Chapter by requiring
the implementation of BMPs. The Director may initially rely on education and
informational assistance to gain compliance with this Chapter, unless the
Director determines a violation poses a hazard to public health, safety, or welfare,
endangers any property, or adversely affects the safety and operation of City
right-of-way, utilities and/or other property owned or maintained by the City,
that should be addressed through immediate penalties. The Director may
demand immediate cessation of discharges and assess penalties for violations
that are an imminent or substantial danger to the health or welfare of persons or
danger to the environment. Enforcement actions shall escalate for non-
compliance. Enforcement shall include one or more of the following actions,
singly or in combination. The Director may apply whatever enforcement action,
or combination of actions, is determined appropriate within the following range
of actions, regardless of the position in the range.
1. Written warning with voluntary compliance. Maybe applied to first time,
minor violations. Educational materials and informational assistance will be
provided to the violator.
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2. Compensatory actions such as community service related to stormwater
education or mitigation in lieu of penalty or enforcement proceedings.
Requires a formal written agreement between the Director and the violator.
3. Written notice of violation ordering compliance.
4. Civil or Criminal penalties. In accordance with subsections D and E below of
this section.
5. Emergency Cease and Desist order. In circumstances where a violation poses
a hazard to public health, safety, or welfare, endangers any property, or
adversely affects the safety and operation of City right-of-way, utilities and/or
other property owned or maintained by the City, the Director is authorized to
issue cease and desist orders. The cease and desist order may require
immediate compliance with this Chapter by halting operations and/or
terminating discharges may be applied by means of the use of a stop work
order.
6. Disconnection from the MS4. Applies to illicit connections to MS4, to illicit
discharges in emergency situations, or continued failure of the property
owner to comply.
Revocation of Permit. Where the violation of this chapter provides a nuisance
or poses a hazard to public health, safety and welfare, and has not previously
been abated, the Director may, upon written notice, revoke any and all
permits associated with the site. Service of a written notice of revocation
shall be in the same manner as service of a Notice and Order. Revocation of a
permit by the Director may be appealed within 10 working days of service of
written notice. The appeal must be in accordance with Section 15.30.150
below.
C. Notice and Order.
r. Contents. The Director shall have authority to issue to an owner or person
responsible for a violation of this chapter an order to maintain or repair a
component of a storrwater facility or BMP to bring it into compliance with
this Chapter or other City regulations, to remove any illicit connection, to
cease any illicit discharge, and to repair or remediate any damages to the
environment caused by any such violation. The order shall include the
following:
a. The order identification number or permit number; and
b. The street address, when available, and the tax parcel number of real
property and/or description of personal property sufficient for
identification of where the violation occurred or is located; and
c. A description of the specific nature, extent and time of the violation and
the damage that has occurred or potential damage that reasonably might
occur; and
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d. A notice that the violation or the potential violation cease and desist; and
e. A statement of the corrective action required to be taken. If the Director
has determined that corrective work is required, the order shall require
that all required permits be secured, that work physically be commenced,
and that the work be completed within such times as the Director
determines are reasonable under the circumstances; and
f. A statement advising that if any required work is not commenced or
completed within the times specified, the Director may proceed to cause
abatement of the violation and cause the work to be done and charge the
costs thereof as a lien against the property and as a joint and separate
personal obligation of any person in violation; and
g. Any requirements for monitoring, analyses and reporting; and
h. A statement specifying the amount of any civil penalty assessed as a result
of the violation and, if applicable, the conditions on which assessment of
such civil penalty is contingent; and
i. An order to the owner to provide the Director a detailed plan showing
drawings and steps that will be taken to achieve compliance within a
specific time. The plan is subject to the approval of the Director; and
j. A statement advising that the order shall become final unless, no later
than io working days after the notice and order are served, any person
aggrieved by the order requests an appeal in accordance with Section
15.30.15o below.
2. Service. Service of the notice and order shall be made upon all persons
identified in the notice and order either personally or by mailing a copy of
such notice and order by certified mail, postage prepaid, return receipt
requested. If the address of any such person cannot reasonably be
ascertained, a copy of the notice and order shall be mailed to such person at
the address of the location of the violation. The failure of any such person to
receive such notice shall not affect the validity of any proceedings taken under
this chapter. Service by certified mail in the manner provided in this section
shall be effective on the date of postmark. The notice and order may be, but is
not required to be, posted on the subject property.
3. Appeal. Persons to whom the notice and order of the Director is issued may
appeal the same within ro working days of service. The appeal must be in
accordance with Section 15.30.15o below.
D. Civil Infraction. Conduct made unlawful by this Chapter shall constitute a Class
One civil infraction and is subject to enforcement and fines as provided in
Chapter 2.64 Port Orchard Municipal Code. Each day of noncompliance with any
of the provisions of this chapter shall constitute a separate offense.
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1. In addition to any other available sanction or remedial procedure, any person
engaging in conduct made unlawful by this chapter shall be subject to a civil
penalty no greater than set by Port Orchard Municipal Code 2.64.030 per day
for each violation from the date set for compliance until the date of
compliance.
2. Payment of a monetary penalty pursuant to this Chapter does not relieve the
person of the duty to correct the violation.
3. All civil penalties recovered during the enforcement of this Chapter shall be
deposited into a fund which shall be used by the City for the protection of
surface and storm water or groundwater as set forth in this Chapter, through
education or enhanced implementation.
E. Criminal prosecution. Any person violating or failing to comply with any of the
provisions of this chapter shall be subject to criminal prosecution and upon
conviction of, shall be guilty of a misdemeanor for the first offense and a gross -
misdemeanor for any subsequent offense occurring within a five year period.
Each day of noncompliance with any of the provisions of this chapter shall
constitute a separate offense.
F. Recovery of Costs Incurred by the Citv. In addition to any costs for enforcement
under this Chapter, any person violating any of the provisions of this Chapter
shall be liable to the City for any expense, loss, or damage caused by such
violation or discharge, including but not limited to the costs for bringing the City
back into compliance with its NPDES permit associated with any violation of
these regulations, and any fines levied for violations of the City's NPDES permit.
G. Violations deemed a public nuisance. Any condition caused or permitted to exist
in violation of any of the provisions of this Chapter is a threat to public health,
safety, and welfare, and is declared and deemed a nuisance, and may be
summarily abated or restored at the violator's expense, and/or a civil action to
abate, enjoin, or otherwise compel the cessation of such nuisance maybe taken.
H. Summary abatement.
r. Whenever any violation of this Chapter causes or creates a condition, the
continued existence of which constitutes, in the opinion of the Director, an
immediate threat to the public health, safety or welfare or to the
environment, the Director may summarily and without prior notice, at the
cost of the owner, abate the condition. Notice of such abatement, including
the reason for it, shall be given to the person responsible for the violation as
soon as reasonably possible after the abatement.
2. Within 15 days after abatement of the violation, the owner of the property will
be notified of the cost of abatement, including labor and materials, legal
expenses, administrative costs, and interest to the extent such costs are
known. Persons to whom the assessment of costs of abatement is issued may
appeal the same within io working days of service. The appeal must be in
accordance with Section 15.30.15o below. If the amount due is not paid
Ordinance No.oig-og
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within a timely manner as determined by the decision of the City or by the
expiration of the time in which to file an appeal, the charges shall become a
special assessment against the property and shall constitute a lien on the
property for the amount of the assessment.
I. The owner shall pay the abatement costs in not more than 12 equal payments.
Such costs shall accrue interest at the rate set by the City's Finance Department
per annum or the rate charged to the City for obtaining the funds necessary to
abate, whichever interest is greater.
Injunctive relief. In addition to any other remedy provided by this Chapter or the
Port Orchard Municipal Code, the City may initiate injunction or abatement
proceedings or any other appropriate action in courts against any person who
violates or fails to comply with any provision of this Chapter and/or to restore a
condition which existed prior to the violation. In any such proceeding, the person
violating and/or failing to comply with any provisions of this Chapter shall be
liable for the costs and reasonable attorneys' fees incurred by the City in bringing,
maintaining, and/or prosecuting such action.
K. Remedies not exclusive. The remedies listed in this Chapter are not exclusive of
any other remedies available under any applicable federal, state, or local law and
it is within the discretion of the City to seek cumulative remedies.
SECTION 16. A new section of Chapter 15.30 of the Port Orchard Municipal code is
added, as follows:
15.30.15o Appeals.
A. The Director's notice and order, revocation of a permit, or assessment of costs of
abatement maybe appealed to the City Council by persons to whom the notice
and order, revocation of a permit, or assessment of costs of abatement is issued.
An appeal shall be considered timely if, but only if, it is filed in writing with the
Director within ro working days of service, and the appeal fee adopted by the City
Council is paid in full. In addition to the appeal fee, if the Director determines
that the services of an independent consultant are reasonably necessary in
adjudicating the appeal, the appellant shall make an initial cash deposit to pay for
an independent review as the same may be reasonably required by the Director.
The initial deposit, which is only an estimate of the consultant's costs, shall be
paid in advance of the hearing. If it is determined during any point in the appeal
process that the initial deposit is insufficient to cover all reasonable consultant's
costs, the appellant shall be required to make an additional deposit in an amount
sufficient to cover the same. Any portion of the deposit that is not used to cover
all reasonable consultant's costs shall be refunded to the appellant. The amount
of the deposit shall be at least $5oo but not more than $1500, and it shall be
determined by the Director based upon a good faith estimate of permissible costs.
The appellant shall be given equal access to any report prepared by the
consultant.
B. The Director shall accept appeals that meet the requirements of this section and
shall schedule such appeals for consideration by the City Council. The City
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Page 19 of 21
Council hearing shall be scheduled within 6o days after the appeal is accepted.
The Director shall reject any appeal that fails to meet the filing and submittal
requirements of this section. The appeal fee shall be refunded in the event the
Director rejects the appeal or in the event that the appellant files a statement with
the Director withdrawing the appeal at least 15 calendar days before the
scheduled hearing. In all other cases, the appeal fee shall be nonrefundable.
C. The written appeal shall contain all of the following information and
attachments:
1. A copy of the notice and order, revocation of a permit, or assessment of costs
of abatement being appealed;
2. The name of the property owner and, if applicable, the owner's agent;
3. The name and signature of each appellant and a statement showing that each
is entitled to file the appeal under subsection A of this section; and
4. A statement of appeal identifying each issue in the notice and order or
assessment of costs of abatement that the appellant wishes to appeal, the
reasons why each issue is in error as a matter of fact and/or law, and evidence
relied upon.
D. The City Council, under its quasi-judicial authority, shall hear the appeal in an
open record hearing. At least ten business days before the hearing, notice of the
same shall be mailed to parties who are entitled to notice of the decision. The
notice of hearing does not need to be posted or published. The appeal shall be
limited to those issues raised in subsection (C)(4), and shall be similar in format
as other quasi-judicial matters that may from time to time come before the City
Council.
E. At least ten business days before the hearing, the Director and appellant shall
each submit, as part of the record, separate reports to the City Council containing
a statement of the issues and applicable laws, discussion and analysis, proposed
findings of fact and conclusions of law, and copies of any pertinent document
referenced therein. The burden shall be on the City to support the order of the
Director by a preponderance of the evidence. Reports, if any, prepared by the
independent consultant referenced above in subsection (A) shall be part of the
record. The City Council shall decide as follows, based upon the record made
during the course of the public hearing:
r. Uphold the order, revocation, or assessment of costs of abatement of the
Director in its entirety; or
2. Uphold the order, revocation, or assessment of costs of abatement of the
Director in part and reverse the order, revocation, or assessment of costs of
abatement in part; or
3. Reverse the order, revocation, or assessment of costs of abatement of the
Director in its entirety.
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Page 20 of 21
F. The City Council shall issue a final decision on the appeal supported by written
findings and conclusions within 10 business days of the hearing. The decision
shall also include venue information and limitations on filing judicial appeal(s) of
the decision. The Director shall serve a copy of the final decision to the appellant
and other parties of record. Service shall be in the same manner as set forth in
Section 15.30.140(C)(2).
SECTION 17. A new section of Chapter 15.30 of the Port Orchard Municipal code is
added, as follows:
15.30.16o Records retention.
If the discharge of prohibited materials emanates from a commercial or industrial
establishment, the owner or operator of such establishment shall retain an on -site
written record of the discharge and the actions taken to prevent its occurrence. Such
records shall be kept and maintained on a permanent basis from the effective date of this
Chapter. The record shall includes books, documents, memoranda, reports, and
correspondence relating to any operation, maintenance, monitoring, sampling, and
chemical analysis associated with the discharge and all records which pertain to matters
which are the subject of any enforcement or litigation activities brought by the Director
pursuant to this Chapter. Copies of any or all records shall be provided to the Director
upon his request.
SECTION 18. A new section of Chapter 15.30 of the Port Orchard Municipal code is
added, as follows:
15.30.170 Construction - Intent.
This Chapter is enacted as an exercise of the City's power to protect and preserve public
health, safety, and welfare. Its provisions shall be liberally construed to give full effect to
the objectives and purposes for which it was enacted. This Chapter is not enacted to
create or otherwise establish or designate any particular class or group of persons who
will, or should be, especially protected or benefited by the terms of this Chapter. The
primary obligation of compliance with this Chapter is placed upon the person holding
title to the property. Nothing contained in this Chapter is intended to be, or shall be,
construed to create or form a basis for liability for the City, its officers, employees or
agents for any injury or damage resulting from the failure of the person holding title to
the property (owner of record) to comply with the provisions of this Chapter, or by
reason or in consequence of any act or omission, to act in connection with the
implementation or enforcement of this Chapter by the City, its officers, employees, or
agents.
Section ig Severability. If any section, sentence, clause or phrase of this ordinance or
any code section adopted or amended hereby should be held to be invalid or unconstitutional by
a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the
validity or constitutionality of any other section, sentence, clause or phrase of this ordinance or
any code section adopted or amended hereby.
Section 2o. Effective Date. This ordinance shall be in full force and effect five (5)
Ordinance No.oig-og
Page 21 of 21
days after posting and publication as required by law. A summary of this Ordinance may be
published in lieu of the entire ordinance, as authorized by State Law.
PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and attested
by the Clerk in authentication of such passage this nth day of August
ATTEST:
Patricia J. atriel, CMC, City Clerk
APPROVED AS TO FORM:
Gregory X J cob Ci Attorney
Lary
Sponsored by:
Councilmember, Rob Putaansuu
NOTICE OF CITY OF PORT ORCHARD
ORDINANCE
The following is a summary of an Ordinance approved by the Port Orchard City Council at their regular
Council meeting held August 11, 2009.
ORDINANCE NO. o tg-o9
AN ORDINANCE OF THE CITY OF PORT ORCHARD,
WASHINGTON, PROVIDING FOR THE PROTECTION AND
ENHANCEMENT OF THE WATER QUALITY OF
WATERCOURSES AND WATER BODIES THROUGH THE
REGULATION OF NON -STORM WATER DISCHARGES TO THE
STORM DRAIN SYSTEM IN COMPLIANCE WITH THE
REQUIREMENTS OF THE CITY'S NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM (NPDES) PERMIT; AND
ADDING A NEW CHAPTER 15.30 "ILLICIT DISCHARGE
DETECTION AND ELIMINATION" TO THE PORT ORCHARD
MUNICIPAL CODE.
Copies of Ordinance No. 019-09 are available for review at the office of the City Clerk of the City of Port
Orchard. Upon written request a statement of the full text of the Ordinance will be mailed to any
interested person without charge. Thirty days after publication, copies of Ordinance No. 019-09 will be
provided at a nominal charge.
City of Port Orchard
Patti Kirkpatrick
City Clerk
Publish: Port Orchard Independent
August 21, 2009