HomeMy WebLinkAboutORD 1275 (2003)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 sea., 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.
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.
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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.
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
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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 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:
CHAPTERS
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.
(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.
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(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 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 Officer" 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.
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(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 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) "PollutanP' shall mean any liquid, solid, or semi-solid substances, or
combination thereof, including and not limited to:
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).
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
Ordinance No. 1275
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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.
(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 r9"'"
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 PermiP' 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
Ordinance No. 1275
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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:
(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
irrespective of the negligence or intent
operate, or utilize an Illicit Connection
Prohibited Discharge.
of this Section 4901(a) shall occur
of the violator to construct, maintain,
or to cause, allow, or facilitate any
(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.
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 Significant 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
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(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.
(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
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project applicant.
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 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
Ordinance No. 1275
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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.
(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.
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(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.
(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
Ordinance No. 1275
Page 11 of 17
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.
(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 Hearing 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 Hearing. 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 Hearing 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 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
Ordinance No. 1275
Page 12 of 17
to the Cease and Desist Order or the emergency abatement action.
(9) Hearing 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
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
Ordinance No. 1275
Page 13 of 17
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.
(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 fora """
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. ...
(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
Ordinance No. 1275
Page 14 of 17
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 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) Injunctions
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.
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
Ordinance No. 1275
Page 15 of 17
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.
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
§1251 et 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 17th day of November 2003.
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TR Y , ORLEY A EN,
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PA. ELA STO ER
CITY CLERK
Ordinance No. 1275
Page 16 of 17
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
CITY OF TUSTIN )
PAMELA STOKER, City Clerk and ex-officio Clerk of the City Council of the City of
Tustin, California, does hereby certify that the whole number of the members of the City
Council of the City of Tustin is 5; that the above and foregoing Ordinance No. 1275 was
duly and regularly introduced at a regular meeting of the Tustin City Council, held on the
3~d day of November, 2003 and was given its second reading, passed, and adopted at a
regular meeting of the City Council held on the 17~h day of November, 2003 by the
following vote:
COUNCILMEMBER AYES: Hagen, Kawashima, Bone, Davert, Thomas (5)
COUNCILMEMBER NOES: None
COUNCILMEMBER ABSTAINED: None
COUNCILMEMBER ABSENT: None
~t~-
~trPA ELA STOKER
City Clerk
Ordinance No. 1275
Page 17 of 17