HomeMy WebLinkAbout10 NPDES PERMIT 11-03-03 Agenda Item
Reviewed:
AGENDA REPORT City Manager
Finance Director
MEETING DATE: NOVEMBER 3, 2003
TO: WILLIAM A. HUSTON, CITY MANAGER
FROM: PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION
SUBJECT: APPROVAL OF ORDINANCE NO. 1275 AMENDING CHAPTER 9 OF ARTICLE
4 OF THE TUSTIN CITY CODE TO COMPLY WITH THE SANTA ANA REGION
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES)
MUNICIPAL STORM WATER PERMIT
SUMMARY
Ordinance No. 1275 is an amendment to the existing Water Quality Ordinance, Chapter 9 of Article 4
of the Tustin City Code. Ordinance No. 1275 will provide for compliance with the current requirements
of the Santa Ana Region National Pollutant Discharge Elimination System (NPDES) Municipal Storm
Water Permit as issued by the California Regional Water Quality Control Board, Order No. R8-2002-
0010, NPDES No. CAS618030.
RECOMMENDATION
It is recommended that the City Council introduce and conduct the first reading of Ordinance No. 1275,
to amend Chapter 9 of Article 4 of the Tustin City Code to comply with the Santa Ana Region NPDES
Municipal Storm Water Permit.
FISCAL IMPACT
There are no direct fiscal impacts associated with the proposed code amendment.
BACKGROUND
Chapter 9 of Article 4 of the Tustin City Code contains the City's Water Quality Ordinance. The Water
Quality Ordinance must be revised to conform with current requirements of the Santa Ana Region
NPDES Municipal Storm Water Permit, Order No. R8-2002-0010, NPDES No. CAS618030. The
County of Orange prepared a model ordinance to assist the permittee cities in revising the language
of their ordinances. The City's Public Works Department utilized the County's model ordinance and
coordinated with the City Attorney's Office to develop the proposed changes as provided in
Ordinance No. 1275.
The proposed revision to the City's Water Quality Ordinance expands the authority of the City to issue
criminal citations to violators of the ordinance. Ordinance No. 1275 also eliminates the portion of the
existing ordinance regarding discharge permits since the City cannot permit non-storm water
discharges under the current NPDES Municipal Storm Water Permit. In addition, language regarding
the Domestic Sewage Exception was deleted in accordance with the County's recommendation since
Approval of Ordinance No. 1275 Amending Chapter 9 of Article 4 of the Tustin City Code to Comply
with the Santa Ana Region National Pollutant Discharge Elimination System (NPDES) Municipal
Storm Water Permit
November 3, 2003
Page 2
sewer discharges are now governed by a separate permit issued by the California Regional Water
Quality Control Board (Order No. R8-2002-0014). Lastly, the role of the Authorized Inspector has
been re-assigned to the Director of Community Development or his/her designee. This will eliminate
the complexity that may arise in the event that an administrative appeal is requested since appeals
must be heard by the Director of Public Works.
Tim D. Serlet Dana R K~sdan ~-~
Director of Public Works/City Engineer Engineering Services Manager
Attachment: Water Quality Ordinance No. 1275
S:\City Council Items\2003 Council Items\WQO 1275 Amendment.doc
ORDINANCE NO. 1275
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF TUSTIN, CALIFORNIA, AMENDING CHAPTER 9 OF
ARTICLE 4 OF THE TUSTIN CITY CODE TO COMPLY
WITH THE SANTA ANA REGION NATIONAL
POLLUTANT DISCHARGE ELIMINATION SYSTEM
(NPDES) MUNICIPAL STORM WATER PERMIT FOR
THE CITY OF TUSTIN
The City Council of the City of Tustin does ordain as follows:
SECTION 1. FINDINGS AND PURPOSE
1. The United States Congress passed the Clean Water Act [33
USC §1251 et seq., as amended, including §402(p) therein] as a mandate, in
part, that municipal separate storm sewer systems, such as in Orange
County, obtain permits to "effectively prohibit non-storm water discharges into
the storm sewers" and "require controls to reduce the discharge of pollutants
to the maximum extent practicable...." This permitting authority has been
delegated by the United States Environmental Protection Agency ("EPA") to
the State of California, which has authorized the State Water Resources
Control Board and its local regulatory agencies, the Regional Water Quality
Control Boards, to control non-point source discharges to United States'
waterways.
2. The Santa Ana Regional Water Quality Control Board has
addressed the obligation to implement the Clean Water Act by issuing Waste
Discharge Requirements with a permit governing storm water runoff for the
County of Orange, Orange County Flood Control District, and the
incorporated cities of Orange County, Order No. R8-2002-0010, NPDES No.
CAS 618030. This permit shall be referred to herein as the National Pollution
Discharge Elimination System Permit or "NPDES Permit".
3. The City of Tustin ("City") is participating as a "Co-permittee"
under the NPDES Permit in the development and adoption of an ordinance to
accomplish the requirements of the Clean Water Act.
4. The storm water runoff is one step in the natural cycle of water.
However, human activities, such as agriculture, construction, and the
operation and maintenance of an urban infrastructure may result in
undesirable discharges of pollutants and certain sediments, which may
accumulate in local drainage channels and waterways and eventually may be
deposited in the waters of the United States.
S:\Miscellaneous Engineedng\NPDES\Water Quality Ordinance No. 1275.doc
5. The purpose of this Ordinance is to participate in the
improvement of water quality and comply with federal requirements for the
control of urban pollutants to storm water runoff, which enters the network of
storm drains throughout the City.
6. The City is authorized by Article XI, of the State Constitution to
exercise the police power of the State by adopting regulations promoting the
public health, public safety, and general prosperity.
7. The City has determined that a legitimate local purpose is
present in complying with the provisions of the NPDES Permit.
8. A reduction in storm water borne pollution will promote the public
health and protect the general welfare of the locality by reducing the level of
artificial and naturally occurring constituents, which may improve the quality of
the waters in this region.
9. The land use authority exercised by the City, pursuant to
California Government Code §65300 et seq., requires regional planning and
the adoption of policies protecting the environment through the imposition of
reasonable conditions on the use of land.
10. This Ordinance conforms to the policies and goals of the General
Plan adopted by the City, pursuant to California Planning and Zoning Law, for
the protection of the portions of watersheds located within Orange County by
implementing measures to control erosion and prevent the pollution of
streams and other waters.
11. The Subdivision Map Act, California Government Code §66410
et seq., authorizes the City to regulate and control the design and
improvement of subdivided lands and mitigate the burdens of proposed
development by imposing reasonable conditions on map approval.
12. California Constitution Article XI, §7 and Government Code
§38660 authorize the City to establish appropriate conditions for the issuance
of building permits, which require the installation of improvements reasonably
related to the proposed use of property.
13. Government Code §38771 authorizes the City to declare as
public nuisances undesirable acts which may injure health or cause
interference with the comfortable enjoyment of life or property and to provide
for the abatement of the same.
14. The City may commence civil actions, pursuant to Federal Clean
Water Act §505(a), against any Person or any governmental agency acting in
violation of any condition of the NPDES Permit.
-2-
S:\Miscellaneous Engineering\NPDES\Water Quality Ordinance No. 1275.doc
15. All industrial discharges subject to the provisions of the State
General Industrial Storm Water Permit and General Construction Activity
Storm Water Permit (referred to collectively herein as the "State General
Permits") must comply with the lawful requirements of the City, which regulate
discharges of storm water to the storm drain system within its jurisdiction.
16. All industrial dischargers subject to the provisions of the State
General Permits are required to maintain Storm Water Pollution Prevention
Plans on-site and make them available to the City for inspection.
17. All dischargers subject to the provisions of the State General
Construction Activity Storm Water Permit may be required by the City, with
the concurrence of the Santa Ana Regional Quality Control Water Board, to
amend any Storm Water Pollution Prevention Plan.
18. All industrial dischargers subject to the provisions of the State
General Industrial Storm Water Permit are required to maintain a description
of the required monitoring program on-site and make it available to the City
for inspection.
19. The City has jurisdiction over certain storm water facilities and
other watercourses within the City, and the water discharges into these
facilities may be subject to the provisions of the State General Industrial
Storm Water Permit; accordingly, the City may certify (but is not required to
certify) in writing that regulated dischargers have developed and implemented
effective Storm Water Pollution Prevention Plans and should not be required
to collect and analyze storm water samples for pollutants.
20. The City has jurisdiction over certain storm water facilities and
other watercourses within the City, and these facilities may receive storm
water discharges from properties and activities regulated under the provisions
of the State General Permits, and City may request that the regulated
dischargers furnish information and records necessary to determine
compliance with the State General Permits.
21. The City has jurisdiction over certain storm water facilities and
other watercourses within the City, and these facilities may receive storm
water discharges from properties and activities regulated under the provisions
of the State General Permits, and City may, upon presentation of credentials
and other documents required by law: (i) enter upon the discharger's
premises where a regulated facility is located or where records must be kept
under the conditions of the State General Permits; (ii) access and copy, at
reasonable times, any records that must be kept under the conditions of the
State General Permits; (iii) inspect, at reasonable times, any facility or
equipment related to or impacting storm water discharge; and (iv) sample or
S:\Miscellaneous Engineering\NPDES\Water Quality Ordinance No. 1275.doc
monitor for the purpose of ensuring compliance with the State General
Permits.
22. This Ordinance is subject to a CEQA categorical exemption,
pursuant to the CEQA Guidelines, respectively, Title 14, California Code of
Regulations Section 15308 (Class 8).
Section 2.
Existing ChaPter 9 of Article 4 (Health and Sanitation) is hereby repealed in
its entirety. Connection to discharge under the terms and conditions of any
individual discharge permit issued prior to the effective date of this Ordinance
shall be allowed as a Legal Non-conforming Connection.
Section 3.
New Chapter 9 hereby replaces in entirety Existing Chapter 9 of Article 4
(Health and Sanitation) of the Tustin City Code to read as follows:
CHAPTER 9
WATER QUALITY CONTROL
CHAPTER INDEX
4900 Definitions
4901 Prohibition on Illicit Connections and Prohibited Discharges
4902 Control of Urban Runoff
4903 Inspections
4904 Enforcement
4905 Interagency Cooperation
4906 Miscellaneous
4900 DEFINITIONS
(a) "Authorized Inspector" shall mean the Director of Community
Development (as used in this Chapter, unless the context
otherwise requires and persons designated by and under his/her
instruction and supervision, who are assigned to investigate
compliance with, detect violations of and/or take actions pursuant
to this Chapter).
(b) "City" shall mean the City of Tustin, Orange County, California.
(c)"Co-Permittee" shall mean the County of Orange, the Orange
County Flood Control District, and/or any one of the twenty five
(25) municipalities, including the City of Tustin, which are
responsible for compliance with the terms of the NPDES Permit.
-4-
S:\Miscellaneous Engineering\NPDES\Water Quality Ordinance No. 1275.doc
(d) "DAMP" shall mean the Orange County Drainage Area
Management Plan, as the same may be amended from time to
time.
(e) "Development Project Guidance" shall mean DAMP Chapter VII
and the Appendix thereto, entitled Best Management Practices for
New Development Including Non-Residential Construction
Projects, as the same may be amended from time to time.
(f) "Discharge" shall mean any release, spill, leak, pump, flow,
escape, leaching (including subsurface migration or deposition to
groundwater), dumping, or disposal of any liquid, semi-solid, or
solid substance.
(g) "Discharge Exception" shall mean the group of activities not
restricted or prohibited by this Chapter, including only:
Discharges composed entirely of storm water;
Discharges subject to regulation under current EPA
or Regional Water Quality Control Board issued
NPDES permits, State General Permits, or other
waivers, permits, or approvals granted by an
appropriate government agency; Discharges from
property for which best management practices set
forth in the Development Project Guidance are being
implemented and followed; Discharges to the Storm
Water Drainage System from potable water line
flushing, fire fighting activities, landscape irrigation
systems, diverted stream flows, rising groundwater,
and de minimis groundwater infiltration to the Storm
Water Drainage System (from leaks in joints or
connections or cracks in water drainage pipes or
conveyance systems); Discharges from potable
water sources, passive foundation drains, air
conditioning condensation, and other building roof
runoff; agricultural irrigation water runoff; water from
crawl space pumps, passive footing drains, lawn
watering, non-commercial vehicle washing; flows
from riparian habitats and wetlands; dechlorinated
swimming pool discharges; Discharges of reclaimed
water generated by a lawfully permitted water
treatment facility; public street wash waters when
related to cleaning and maintenance by, or on behalf
of, the City; Discharges for which the discharger has
reduced to the extent feasible the amount of
Pollutants in such Discharge; and Discharges
S:\Miscellaneous Engineenng\NPDES\Water Quality Ordinance No. 1275.doc
authorized pursuant to federal or state laws or
regulations.
In any action taken to enforce this Chapter, the burden shall be on the
Person who is the subject of such action to establish that a Discharge
was within the scope of this Discharge Exception.
(h) "Enforcing Attorney'' shall mean the City Attorney or District
Attorney acting as counsel to the City and his/her designee, which
counsel is authorized to take enforcement action as described
herein. For purposes of criminal prosecution, only the District
Attorney and/or City Attorney, or his/her designee, shall act as the
Enforcing Attorney.
(i) "EPA" shall mean the Environmental Protection Agency of the
United States.
(j) "Hearing Office?' shall mean the Director of Public Works or
his/her designee, who shall preside at the administrative hearings
authorized by this Chapter and issue final decisions on the matters
raised therein.
(k) Invoice for Costs" shall mean the actual costs and expenses of
the City, including but not limited to administrative overhead,
salaries, and other expenses recoverable under State law, incurred
during any Inspection conducted pursuant to Section 4903 of this
Chapter or where a Notice of Noncompliance, Administrative
Compliance Order, or other enforcement option under Section
4904 of this Chapter is utilized to obtain compliance with this
Chapter.
(I) "Illicit Connection" shall mean any man-made conveyance or
drainage system, pipeline, conduit, inlet, or outlet through which
the Discharge of any Pollutant to the Storm Water Drainage
System occurs or may occur. The term Illicit Connection shall not
include Legal Nonconforming Connections or connections to the
Storm Water Drainage System that are hereinafter authorized by
the agency with jurisdiction over the system at the location at which
the connection is made.
(m) "Legal Nonconforming Connection" shall mean connections to
the Storm Water Drainage System existing as of the adoption of
this Chapter that were in compliance with all federal, state, and
local rules, regulations, statutes, and administrative requirements
in effect at the time the connection was established, including but
not limited to any discharge permitted pursuant to the terms and
S:\Miscellaneous Engineering~NPDES\Water Quality Ordinance No. 1275.doc
conditions of an individual discharge permit issued pursuant to
existing Chapter 9, Article 4 of the Tustin City Code, that is
repealed as of the effective date of this Chapter.
(n) "New Development" shall mean all public and private residential
(whether single family, multi-unit, or planned unit development),
industrial, commercial, retail, and other non-residential construction
projects, or grading for future construction, for which either a
discretionary land use approval, grading permit, building permit, or
Non-residential Plumbing Permit is required.
(o) "Non-residential Plumbing Permit" shall mean a plumbing permit
authorizing the construction and/or installation of facilities for the
conveyance of liquids other than storm water, potable water,
reclaimed water, or domestic sewage.
(p) "NPDES Permit" shall mean the currently applicable municipal
discharge permit issued by the Regional Water Quality Control
Board, Santa Ana Region.
(q) "Person" shall mean any natural person as well as any
corporation, partnership, government entity, or subdivision, trust,
estate, cooperative association, joint venture, business entity, or
other similar entity, or the agent, employee, or representative of
any of the above.
(r) "Poflutant" shall mean any liquid, solid, or semi-solid substances,
or combination thereof, including and not limited to:
1. Artificial materials (such as floatable plastics, wood
products, or metal shavings).
2. Household waste (such as trash, paper, and
plastics; cleaning chemicals; yard wastes; animal fecal
materials; used oil and fluids from vehicles, lawn mowers,
and other common household equipment).
3. Metals and non-metals, including compounds of
metals and non-metals, (such as cadmium, lead, zinc,
copper, silver, nickel, chromium, cyanide, phosphorus,
and arsenic), with characteristics which cause an
adverse effect on living organisms.
4. Petroleum and related hydrocarbons (such as fuels,
lubricants, surfactants, waste oils, solvents, coolants, and
grease).
S:\Miscellaneous Engineering\NPDES\Water Quality Ordinance No, 1275.doc
5. Animal wastes (such as Discharge from confinement
facilities, kennels, pens, and recreational facilities,
including, stables, show facilities, or polo fields).
6. Substances having a pH less than 6.5 or greater
than 8.6, or unusual coloration, turbidity, or odor.
7. Waste materials and wastewater generated on
construction sites and by construction activities (such as
painting and staining; use of sealants and glues; use of
lime; use of wood preservatives and solvents;
disturbance of asbestos fibers, paint flakes, or stucco
fragments; application of oils, lubricants, hydraulic,
radiator, or battery fluids; construction equipment
washing; concrete pouring and cleanup; use of concrete
detergents; steam cleaning or sand blasting; use of
chemical degreasing or diluting agents; and use of super
chlorinated water for potable water line flushing).
8. Materials causing an increase in biochemical oxygen
demand, chemical oxygen demand, or total organic
carbon.
9. Materials which contain base/neutral or acid
extractable organic compounds.
10. Those Pollutants defined in Section 1362(6) of the
Federal Clean Water Act; and
11. Any other constituent or material, including but not
limited to pesticides, herbicides, fertilizers, fecal coliform,
fecal streptococcus or enterococcus, or eroded soils,
sediment and particulate materials, in quantities that will
interfere with or adversely affect the beneficial uses of
the receiving waters, flora, or fauna of the State.
(s) "Prohibited Discharge" shall mean any Discharge which contains
any Pollutant, from public or private property to: (i) the Storm Water
Drainage System; (ii) any upstream flow, which is tributary to the
Storm Water Drainage System; (iii) any groundwater, river, stream,
creek, wash or dry weather arroyo, wetlands area, marsh, or
coastal slough; or (iv) any coastal harbor, bay, or the Pacific
Ocean. The term Prohibited Discharge shall not include
Discharges allowable under the Discharge Exception.
S:\Miscellaneous Engineering\NPDES\Water Quality Ordinance No. 1275.doc
(t) "Significant Redevelopment' shall mean the rehabilitation or
reconstruction of public or private residential (whether single
family, multi-unit, or planned unit development), industrial,
commercial, retail, or other non-residential structures, for which
either a discretionary land use approval, grading permit, building
permit, or Non-residential Plumbing Permit is required.
(u) "State General Permit' shall mean either the State General
Industrial Storm Water Permit or the State General Construction
Permit and the terms and requirements of either or both. In the
event the U.S. Environmental Protection Agency revokes 'the in-
lieu permitting authority of the State Water Resources Control
Board, then the term State General Permit shall also refer to any
EPA administered storm water control program for industrial and
construction activities.
(v) "Storm Water Drainage System" shall mean street gutter,
channel, storm drain, constructed drain, lined diversion structure,
wash area, inlet, outlet, or other facility, which is a part of or
tributary to the County-wide storm water runoff system and owned,
operated, maintained, or controlled by County of Orange, the
Orange County Flood Control District, or any Co-Permittee City,
and used for the purpose of collecting, storing, transporting, or
disposing of storm water.
4901 PROHIBITION ON ILLICIT CONNECTIONS AND PROHIBITED
DISCHARGES
(a) No Person shall:
(1) Construct, maintain, operate, and/or utilize any Illicit
Connection.
(2) Cause, allow, or facilitate any Prohibited Discharge.
(3) Act, cause, permit, or suffer any agent, employee, or
independent contractor, to construct, maintain, operate,
or utilize any Illicit Connection, or cause, allow or
facilitate any Prohibited Discharge.
(b) The prohibition against Illicit Connections shall apply irrespective
of whether the Illicit Connection was established prior to the date of
enactment of this Chapter; however, Legal Nonconforming
Connections shall not become Illicit Connections until the earlier of the
following:
-9-
S:\Miscellaneous Engineering\NPDES\Water Quality Ordinance No. 1275.doc
(1) For all structural improvements to property installed for
the purpose of Discharge to the Storm Water Drainage
System, the expiration of five (5) years from the adoption
of this Chapter.
(2) For all nonstructural improvements to property existing
for the purpose of Discharge to the Storm Water
Drainage System, the expiration of six (6) months
following delivery of a notice to the owner or occupant of
the property, which states a Legal Nonconforming
Connection has been identified. The notice of a Legal
Nonconforming Connection shall state the date of
expiration of use under this Chapter.
(c) A civil or administrative violation of this Section 4901(a) shall
occur irrespective of the negligence or intent of the violator to
construct, maintain, operate, or utilize an Illicit Connection or to cause,
allow, or facilitate any Prohibited Discharge.
(d) If an Authorized Inspector reasonably determines that a
Discharge, which is otherwise within the Discharge Exception, may
adversely affect the beneficial uses of receiving waters, then the
Authorized Inspector may give written notice to the owner of the
property or facility that the Discharge Exception shall not apply to the
subject Discharge following expiration of the thirty (30) day period
commencing upon delivery of the notice. Upon expiration of the thirty
(30) day period any such Discharge shall constitute a violation of this
Chapter.
(e) The owner or occupant of property on which a Legal
Nonconforming Connection exists may request an extension of the
period allowed for continued use of the connection. A reasonable
extension of use may be authorized by the Authorized Inspector upon
consideration of the following factors:
(1) The potential adverse effects of the continued use of
the connection upon the beneficial uses of receiving
waters.
(2) The economic investment of the discharger in the Legal
Nonconforming Connection; and
(3) The financial effect upon the discharger of a
termination of the Legal Nonconforming Connection.
-10-
S:\Miscellaneous Engineering\NPDES\Water Quality Ordinance No. 1275.doc
If a request for an extension of time for the use is denied, the
owner or occupant of property on which a Legal Nonconforming
Connection exists may request an administrative hearing, pursuant to
the procedures set forth in Subsection 4904(a) (6) - (10) for an
extension of the period allowed for continued use of the connection.
4902 CONTROL OF URBAN RUNOFF
(a) New Development and Si,qnificant Redevelopment
(1) All New Development and Significant Redevelopment
within the City shall be undertaken in accordance with:
(A) The DAMP, including but not limited to the
Development Project Guidance; and
(B) Any conditions and requirements established by the
City Community Development Department and Public
Works Department, which are reasonably related to the
reduction or elimination of Pollutants in storm water runoff
from the project site.
(2) Prior to the issuance by the City of a grading permit,
building permit, or Non-residential Plumbing Permit for any New
Development or Significant Redevelopment, the City Community
Development Department shall review the project plans and
impose terms, conditions, and requirements on the project in
accordance with Subsection (a)(1). If the New Development or
Significant Redevelopment will be approved without application
for a grading permit, building permit, or Non-residential Plumbing
Permit, the City Community Development Department shall
review the project plans and impose terms, conditions, and
requirements on the project in accordance with Subsection (a)(1)
prior to the issuance of a discretionary land use approval or, at
the City's discretion, prior to recordation of a subdivision map.
(3) Notwithstanding the foregoing Subsections (a)(1) and
(a)(2), compliance with the Development Project Guidance shall
not be required for construction of a one (1) single family
detached residence unless the City Community Development
Department determines that the construction may result in the
Discharge of significant levels of a Pollutant into a tributary to the
Storm Water Drainage System.
S:\Miscellaneous Engineering\NPDES\Water Quality Ordinance No. 1275.doc
(4) Compliance with the conditions and requirements of the
DAMP shall not exempt any Person from the requirement to
independently comply with each provision of this Chapter.
(5) If the City Community Development Department
determines that the project will have a de minimis impact on the
quality of storm water runoff, then it may issue a written waiver of
the requirement for compliance with the provisions of the
Development Project Guidance.
(6) The owner of a New Development or Significant
Redevelopment project, or upon transfer of the property, its
successors and assigns, shall implement and adhere to the
terms, conditions, and requirements imposed pursuant to
Subsection (a)(1) on a New Development or Significant
Redevelopment project.
(i) Each failure by the owner of the property or its
successors or assigns, to implement and adhere to
the terms, conditions, and requirements imposed
pursuant to Subsection 4902(a)(1) on a New
Development or Significant Redevelopment project
shall constitute a violation of this Chapter.
(7) The City Community Development Department may
require that the terms, conditions, and requirements imposed
pursuant to Subsection 4902 (a)(1) be recorded with the County
Recorder's office by the property owner. The signature of the
owner of the property or any successive owner shall be sufficient
for the recording of these terms, conditions, and requirements
and a signature on behalf of the City shall not be required for
recordation.
(b) Cost Recovery
The City shall be reimbursed by the project applicant for all costs and
expenses incurred by the City Community Development Department
in the review of New Development or Significant Redevelopment
projects for compliance with the DAMP. The City Community
Development Department may elect to require a deposit of estimated
costs and expenses, and the actual costs and expenses shall be
deducted from the deposit, and the balance, if any, refunded to the
project applicant.
S:\Miscellaneous Engineering\NPDES\Water Quality Ordinance No. 1275.doc
4903 INSPECTIONS
(a) Scope of Inspections
(1) Right to Inspect. Prior to commencing any inspection as
herein below authorized, the Authorized Inspector shall obtain
either the consent of the owner or occupant of the property or
shall obtain an administrative inspection warrant or criminal
search warrant.
(2) Entry to Inspect. The Authorized Inspector may enter
property to investigate the source of any Discharge to any
public street, inlet, gutter, storm drain, or the Storm Water
Drainage System located within the jurisdiction of the City.
(3) Compliance Assessments. The Authorized Inspector may
inspect property for the purpose of verifying compliance with
this Chapter, including but not limited to: (i) identifying
products produced, processes conducted, chemicals used,
and materials stored on or contained within the property; (ii)
identifying point(s) of discharge of all wastewater, process
water systems, and Pollutants; (iii) investigating the natural
slope at the location, including drainage patterns and man-
made conveyance systems; (iv) establishing the location of all
points of discharge from the property, whether by surface
runoff or through a storm drain system; (v) locating any Illicit
Connection or the source of Prohibited Discharge; and (vi)
investigating the condition of any Legal Nonconforming
Connection.
(4) Portable Equipment. For purposes of verifying compliance
with this Chapter, the Authorized Inspector may inspect any
vehicle, truck, trailer, tank truck, or other mobile equipment.
(5) Records Review. The Authorized Inspector may inspect
all records of the owner or occupant of property relating to
chemicals or processes presently or previously occurring on-
site, including material and/or chemical inventories, facilities
maps or schematics and diagrams, Material Safety Data
Sheets, hazardous waste manifests, business plans, pollution
prevention plans, State General Permits, Storm Water
Pollution Prevention Plans, Monitoring Program Plans and any
other record(s) relating to Illicit Connections, Prohibited
Discharges, a Legal Nonconforming Connection, or any other
S:\Miscellaneous Engineering\NPDES\Water Quality Ordinance No. 1275.doc
source of contribution or potential contribution of Pollutants to
the Storm Water Drainage System.
(6) Sample & Test. The Authorized Inspector may inspect,
sample, and test any area runoff, soils area (including
groundwater testing), process discharge, materials within any
waste storage area (including any container contents), and/or
treatment system Discharge for the purpose of determining the
potential for contribution of pollutants to the Storm Water
Drainage System. The Authorized Inspector may investigate
the integrity of all storm drain and sanitary sewer systems, any
Legal Nonconforming Connection, or other pipelines on the
property using appropriate tests, including but not limited to
smoke and dye tests or video surveys. The Authorized
Inspector may take photographs or video tape, make
measurements or drawings, and create any other record
reasonably necessary to document conditions on the property.
(7) Monitoring. The Authorized Inspector may erect and
maintain monitoring devices for the purpose of measuring any
Discharge or potential source of Discharge to the Storm Water
Drainage System.
(8) Test Results. The owner or occupant of property subject
to inspection shall, on submission of a written request, receive
copies of all monitoring and test results conducted by the
Authorized Inspector.
4904 ENFORCEMENT
(a) Administrative Remedies
(1) Notice of Noncompliance. The Authorized Inspector may
deliver to the owner or occupant of any property, or to any
Person responsible for an Illicit Connection or Prohibited
Discharge a Notice of Noncompliance. The Notice of
Noncompliance shall be delivered in accordance with this
Section 4904.
(A) The Notice of Noncompliance shall identify the
provision(s) of this Chapter or the applicable permit
which has been violated. The Notice of
Noncompliance shall state that continued
noncompliance may result in additional enforcement
actions against the owner, occupant, and/or Person.
-]4-
S:\Miscellaneous Engineering\NPDES\Water Quality Ordinance No. 1275.doc
(B) The Notice of Noncompliance shall state a
compliance date that must be met by the owner,
occupant, and/or Person; provided, however, that the
compliance date may not exceed ninety (90) days
unless the Authorized Inspector extends the
compliance deadline an additional ninety (90) days
where good cause exists for the extension.
(2) Administrative Compliance Orders
(A) The Authorized Inspector may issue an
Administrative Compliance Order. The Administrative
Compliance Order shall be delivered in accordance
with Subsection 4904 (a)(5) of this Chapter. The
Administrative Compliance Order may be issued to:
(1) The owner or occupant of any property
requiring abatement of conditions on the
property that cause or may cause a Prohibited
Discharge or an Illicit Connection in violation
of this Chapter.
(2) The owner of property subject to terms,
conditions, or requirements imposed on a
project in accordance with Subsection
4902(a)(1) to ensure adherence to those
terms, conditions, and requirements.
(3) Any Person responsible for an Illicit
Connection or Prohibited Discharge.
(B) The Administrative Compliance Order may include
the following terms and requirements:
(1) Specific steps and time schedules for
compliance as reasonably necessary to
eliminate an existing Prohibited Discharge or
prevent the imminent threat of a Prohibited
Discharge, including but not limited to a
Prohibited Discharge from any pond, pit, well,
surface impoundment, holding, or storage
area.
(2) Specific steps and time schedules for
compliance as reasonably necessary to
discontinue any Illicit Connection.
S:\Miscellaneous Engineering\NPDES\Water Quality Ordinance No. 'i275.doc
(3) Specific requirements for containment,
cleanup, removal, storage, installation of
overhead covering, or proper disposal of any
Pollutant having the potential to contact storm
water runoff.
(4) Any other terms or requirements
reasonably calculated to prevent the imminent
threat of or continuing violations of this
Chapter, including, but not limited to
requirements for compliance with best
management practices guidance documents
promulgated by any federal, State of
California, or regional agency.
(5) Any other terms or requirements
reasonably calculated to achieve full
compliance with the terms, conditions, and
requirements of any permit issued pursuant
hereto.
(3) Cease and Desist Orders
(A) The Authorized Inspector may issue a Cease
and Desist Order. A Cease and Desist Order shall be
delivered in accordance with Subsection 4904(a)(5) of
this Chapter. A Cease and Desist Order may direct
the owner or occupant of any property and/or other
Person responsible for a violation of this Chapter to:
(1) Immediately discontinue any Illicit
Connection or Prohibited Discharge to the
Storm Water Drainage System.
(2) Immediately contain or divert any flow
of water off the property, where the flow is
occurring in violation of any provision of this
Chapter.
(3) Immediately discontinue any other
violation of this Chapter.
(4) Clean up the area affected by the
violation.
-16-
S:\Miscellaneous Engineering\NPDES\Water Quality Ordinance No. I275.doc
(B) The Authorized Inspector may direct by Cease
and Desist Order: (1) that the owner of any property
or his successor in interest which property is subject
to any conditions or requirement issued pursuant to
Subsection 4902(a)(1):
(1) Immediately cease any activity not in
compliance with the terms, conditions and
requirements issued pursuant to Subsection
4902 (a)(1) of the applicable permit.
(4) Recovery of Costs. The Authorized Inspector may deliver
to the owner or occupant of any property, any permittee, or
any other Person who becomes subject to a notice of
noncompliance or administrative order, an Invoice for Costs.
An Invoice for Costs shall be delivered in accordance with
Subsection 4904(a)(5) of this Chapter. An Invoice for Costs
shall be immediately due and payable to the City for the actual
costs incurred by the City in issuing and enforcing any notice
or order.
(A) If any owner or occupant, permittee, or any
other Person subject to an Invoice for Costs fails to
either pay the Invoice for Costs or appeal successfully
the Invoice for Costs in accordance with Subsection
4904(a)(6), then the Enforcing Attorney may institute
collection proceedings.
(5) Delivery of Notice. Any Notice of Noncompliance,
Administrative Compliance Order, Cease and Desist Order,
or Invoice of Costs to be delivered pursuant to the
requirements of this Chapter shall be subject to the
following:
(A) The notice shall state that the recipient has a
right to appeal the matter as set forth in Subsection
4904(a)(6) through Subsection 4904(a)(10) of this
Chapter.
(B) Delivery shall be deemed complete upon: (a)
personal service to the recipient; (b) deposit in the
U.S. mail, postage pre-paid for first class delivery; or
(c) facsimile service with confirmation of receipt.
-l?-
S:\Miscellaneous Engineering\NPDES\Water Quality Ordinance No. 1275.doc
(C) Where the recipient of notice is the owner of
the property, the address for notice shall be the
address from the most recently issued equalized
assessment roll for the property or as otherwise
appears in the current records of the City.
(D) Where the owner or occupant of any property
cannot be located after the reasonable efforts of the
Authorized Inspector, a Notice of Noncompliance or
Cease and Desist Order shall be deemed delivered
after posting on the property for a period of ten (10)
business days.
(6) Administrative Hearin.q for Notices of Noncompliance,
Administrative Compliance Orders, Invoices for Costs, and
Adverse Determinations. Except as set forth in Subsection
4904(a)(8), any Person receiving a Notice of
Noncompliance, Administrative Compliance Order, a notice
pursuant to Subsection 4901(d), an Invoice for Costs, or a
decision on a request for extension of Legal Nonconforming
Connection, may appeal the matter by requesting an
administrative hearing. Notwithstanding the foregoing,
these administrative appeal procedures shall not apply to
court proceedings initiated to enforce this Chapter, nor to
civil penalties for violations of the Tustin City Code.
(7) Request for Administrative Hearinq. Any person appealing
the Notices, Orders, invoices, or decisions listed in (6)
above shall, within thirty (30) days of receipt thereof, file a
written request for an administrative hearing, accompanied
by an administrative hearing fee as established by separate
resolution, with the Office of the City Clerk, with a copy of
the request for administrative hearing mailed on the date of
filing to the Hearing Officer, the Authorized Inspector, and
the City Attorney. Thereafter, a hearing on the matter shall
be held before the Hearing Officer within forty-five (45)
business days of the date of filing of the written request
unless, in the reasonable discretion of the Hearing Officer
and pursuant to a written request by the appealing party, a
continuance of the hearing is granted.
(8) Administrative Hearin.q for Cease and Desist Orders and
Emergency Abatement Actions. An administrative hearing
on the issuance of a Cease and Desist Order or following
an emergency abatement action shall be held by the
Hearing Officer within five (5) business days following the
issuance of the order or the action of abatement, unless the
S:\Miscellaneous Engineering\NPDES\Water Quality Ordinance No. 1275.doc
hearing (or the time requirement for the hearing) is waived
in writing by the party subject to the Cease and Desist
Order or the emergency abatement. A request for an
administrative hearing shall not be required from the
Person subject to the Cease and Desist Order or the
emergency abatement action.
(9) Hearinq Proceedings. The Authorized Inspector shall
appear in support of the notices and actions described in
(6) and (8) above, and the appealing party shall appear in
support of withdrawal of the notice, order, determination,
Invoice for Costs, or in opposition to the emergency
abatement action. Except as set forth in Section 4901(g),
the City shall have the burden of supporting its actions by a
preponderance of the evidence. Each party shall have the
right to present testimony and other documentary evidence
as necessary for explanation of the case.
(6) Final Decision and Appeal. The final decision of the
Hearing Officer shall issue within ten (10) business days of
the conclusion of the hearing and shall be delivered by first-
class mail, postage prepaid, to the appealing party. The
final decision shall include notice that any legal challenge to
the final decision shall be made pursuant to the provisions
of Code of Civil Procedure Subsections 1094.5 and 1094.6
and shall be commenced within ninety (90) days following
issuance of the final decision. The administrative hearing
fee paid by a prevailing party in an appeal shall be
refunded.
Notwithstanding this Subsection 4904(a)(10), the final
decision of the Hearing Officer in any preceding
determining the validity of a Cease and Desist Order or
following an emergency abatement action shall be mailed
within five (5) business days following the conclusion of the
hearing.
(11) City Abatement. In the event the owner of property, the
operator of a facility, a permittee, or any other Person fails
to comply with any provision of a compliance schedule
issued to such owner, operator, permittee, or Person
pursuant to this Chapter, the Authorized Inspector may
request the Enforcing Attorney to obtain an abatement
warrant or other appropriate judicial authorization to enter
the property, abate the condition, and restore the area. Any
costs incurred by the City in obtaining and carrying out an
S:\Mi$cellaneous Engineering\NPDES\Water Quality Ordinance No. '~275.doc
abatement warrant or other judicial authorization may be
recovered pursuant to Subsection 4904(b)(4).
(b) Nuisance
Any condition in violation of the prohibitions of this Chapter, including
but not limited to the maintenance or use of any Illicit Connection or
the occurrence of any Prohibited Discharge, shall constitute a threat to
the public health, safety, and welfare, and is declared and deemed a
nuisance pursuant to Government Code Section 38771.
(1) Court Order to Enjoin or Abatement. At the request of the
Director of Public Works or the Authorized Inspector, the
Enforcing Attorney may seek a court order to enjoin and/or
abate the nuisance.
(2) Notice to Owner and Occupant. Prior to seeking any court
order to enjoin or abate a nuisance or threatened nuisance,
the Director of Public Works or the Authorized Inspector shall
provide notice of the proposed injunction or abatement to the
owner and occupant, if any, of the property where the
nuisance or threatened nuisance is occurring.
(3) Emergency Abatement. In the event the nuisance
constitutes an imminent danger to public safety or the
environment, the Authorized Inspector may enter the property
from which the nuisance emanates, abate the nuisance, and
restore any property affected by the nuisance. To the extent
reasonably practicable, informal notice shall be provided to the
owner or occupant prior to abatement. If necessary to protect
the public safety or the environment, abatement may proceed
without prior notice to or consent from the owner or occupant
thereof and without judicial warrant.
(A) An imminent danger shall include, but is not
limited to, exigent circumstances created by the
dispersal of Pollutants, where the same presents a
significant and immediate threat to the public safety or
the environment.
(B) Notwithstanding the authority of the City to
conduct an emergency abatement action, an
administrative hearing pursuant to Subsection
4904(a)(8) hereinabove shall follow the abatement
action.
-20-
S:\Miscellaneous Engineering\NPDES\Water Quality Ordinance No. 1275,doc
(4) Reimbursement of Costs. All costs incurred by the City in
responding to any nuisance, all administrative expenses, and
all other expenses recoverable under State law, shall be
recoverable from the Person(s) creating, causing, committing,
permitting, or maintaining the nuisance.
(5) Nuisance Lien. All costs shall become a lien against the
property from which the nuisance emanated and a personal
obligation against the owner thereof in accordance with
Government Code Sections 38773.1 and 38773.5. The owner
of record of the property subject to any lien shall be given
notice of the lien prior to recording as required by Government
Code Section 38773.1.
At the direction of the Director of Public Works or the
Authorized Inspector, the Enforcing Attorney is authorized to
collect nuisance abatement costs or enforce a nuisance lien in
an action brought for a money judgment or by delivery to the
County Assessor of a special assessment against the property
in accord with the conditions and requirements of Government
Code Section 38773.5.
(c) Criminal Sanctions
(1) Prosecutor. The Enforcing Attorney may act on the
request of the Director of Public Works or the Authorized
Inspector to pursue enforcement actions in accordance with
the provisions of this Chapter.
(2) Infractions. Pursuant to Tustin City Code Section 1121,
any Person who may otherwise be charged with a
misdemeanor under this Chapter may be charged, at the
discretion of the Enforcing Attorney, with an infraction
punishable by a fine of not more than $100 for a first violation,
$200 for a second violation, and a fine not exceeding $500 for
each additional violation occurring within one year.
(3) Misdemeanors. Any Person who negligently or knowingly
violates any provision of this Chapter, undertakes to conceal
any violation of this Chapter, continues any violation of this
Chapter after notice thereof, or violates the terms, conditions,
and requirements of any permit issued pursuant to this
Chapter, shall be guilty of a misdemeanor punishable by a fine
of not more than $1000 or by imprisonment for a period of not
more than six months, or both.
-21-
S:\Miscellaneous Engineering\NPDES\Water Quality Ordinance No. 1275.doc
(d) Consecutive Violations
Pursuant to Tustin City Code Section 1121, each day in which a
violation occurs and each separate failure to comply with either a
separate provision of this Chapter, an Administrative Compliance
Order, a Cease and Desist Order, or a permit issued pursuant to this
Chapter, shall constitute a separate violation of this Chapter
punishable by fines or sentences issued in accordance herewith.
(e) Non-exclusive Remedies
Each and every remedy available for the enforcement of this Chapter
shall be non-exclusive and it is within the discretion of the Authorized
Inspector or Enforcing Attorney to seek cumulative remedies, except
that multiple monetary fines or penalties shall not be available for any
single violation of this Chapter.
(f) Citations/Criminal Complaints
Pursuant to Penal Code Section 836.5, the Authorized Inspector shall
have the authority to cause the arrest of any Person committing a
violation of this Chapter. The Person shall be released and issued a
citation to appear before a magistrate in accordance with Penal Code
Sections 853.5, 853.6, and 853.9, unless the Person demands to be
taken before a magistrate. Following issuance of any citation the
Authorized Inspector shall refer the matter to the Enforcing Attorney.
Each citation to appear shall state the name and address of the
violator, the provisions of this Chapter that were violated, and the time
and place of appearance before the court, which shall be at least ten
(10) business days after the date of violation. The Person cited shall
sign the citation giving his or her written promise to appear as stated
therein. If the Person cited fails to appear, the Enforcing Attorney may
request issuance of a warrant for the arrest of the Person cited. Upon
the recommendation of the Director of Public Works or the Authorized
Inspector, the Enforcing Attorney may file a criminal complaint and
seek an arrest warrant for any person violating any provision of this
Chapter.
(g) Violations of Other Laws
Any Person acting in violation of this Chapter also may be acting in
violation of the Federal Clean Water Act or the State Porter-Cologne
Act and other laws and also may be subject to sanctions including civil
liability. Accordingly, the Enforcing Attorney is authorized to file a
-2:2-
S:~Miscellaneous Engineering\NPDES\Water Quality Ordinance No. 1275.doc
citizen suit pursuant to Federal Clean Water Act Section 505(a),
seeking penalties, damages, and orders compelling compliance, and
other appropriate relief. The Enforcing Attorney may notify EPA
Region IX, the Santa Ana Regional Water Quality Control Board, or
any other appropriate state or local agency, of any alleged violation of
this Chapter.
(h) Iniunctions
At the request of the Director of Public Works or the Authorized
Inspector, the Enforcing Attorney may cause the filing in a court of
competent jurisdiction, of a civil action seeking an injunction against
any threatened or continuing noncompliance with the provisions of this
Chapter.
(1) Order for Reimbursement. Any temporary, preliminary, or
permanent injunction issued pursuant hereto may include an
order for reimbursement to the City of all costs incurred in
enforcing this Chapter, including costs of inspection,
investigation, and monitoring, the costs of abatement
undertaken at the expense of the City, costs relating to
restoration of the environment and all other expenses as
authorized by law.
(i) Other Civil Remedies
(1) The Director of Public Works or the Authorized Inspector
may cause the Enforcing Attorney to file an action for civil
damages in a court of competent jurisdiction seeking recovery
of: (i) all costs incurred in enforcement of the Chapter,
including but not limited to costs relating to investigation,
sampling, monitoring, inspection, administrative expenses, all
other expenses as authorized by law, and consequential
damages; (ii) all costs incurred in mitigating harm to the
environment or reducing the threat to human health; and (iii)
damages for irreparable harm to the environment.
(2) The Enforcing Attorney is authorized to file actions for civil
damages resulting from any trespass or nuisance occurring on
public land or to the Storm Water Drainage System from any
violation of this Chapter where the same has caused damage,
contamination, or harm to the environment, public property, or
the Storm Water Drainage System.
(3) The remedies available to the City pursuant to the
provisions of this Chapter shall not limit the right of the City to
seek any other remedy that may be available by law.
S:\Miscellaneous Engineering\NPDES\Water Quality Ordinance No. 1275.doc
4905 INTERAGENCY COOPERATION
(a) The City intends to cooperate with other agencies with jurisdiction
over storm water discharges to ensure that the regulatOry purposes
underlying storm water regulations promulgated pursuant to the Clean
Water Act (33 USC §1251et seq.) are met.
(b) The City may, to the extent authorized by law, elect to contract
for the services of any public agency or private enterprise to carry out
the planning approvals, inspections, permits, and enforcement
authorized by this Chapter.
4906 MISCELLANEOUS
Full compliance by any Person or entity with the provisions of this
Chapter shall not preclude the need to comply with other local, state
or federal statutory or regulatory requirements, which may be required
for the control of the Discharge of Pollutants into storm water and/or
the protection of storm water quality.
SECTION 4 SEVERABILITY
If any section, subsection, sentence, clause, phrase, or portion of this
ordinance is for any reason held out to be invalid or unconstitutional by the
decision of any court of competent jurisdiction, such decision shall not affect
the validity of the remaining portions of this ordinance. The City Council of
the City of Tustin hereby declares that it would have adopted this ordinance
and each section, subsection, sentence, clause, phrase, or portion thereof
irrespective of the fact that any one or more sections, subsections, sentences,
clauses, phrases, or portions be declared invalid or unconstitutional.
PASSED AND ADOPTED by the City Council of the City of Tustin at a regular
meeting held on the 3rd day of November 2003.
Tracy Worley Hagen, Mayor
Pamela Stoker
City Clerk
-24-
S:\Miscellaneous Engineering\NPDES\Water Quality Ordinance No. 1275.doc