HomeMy WebLinkAbout9.a. Illicit Discharge OrdinanceAGENDA ITEM: Illicit Discharge Ordinance
AGENDA SECTION:
New Business
PREPARED BY: Andrew J. Brotzler, PE, City Engineer
AGENDA NO. q.a.
ATTACHMENTS: Draft Ordinance
APPROVED BY:
RECOMMENDED ACTION: First Reading
4 ROSEMOUNT
City Council Meeting: May 5, 2009
CITY COUNCIL
EXECUTIVE SUMMARY
BACKGROUND:
As part of thy: City's Storm Water Pollution Prevention Plan (SWPPP) enforced by the Minnesota
Pollution Control Agency under the National Pollutant Discharge Elimination System (NPDES), the City
of Rosemount is required to establish a program to identify and eliminate illicit and non -storm water
discharges entering the storm sewer system. As part of this program the MPCA requires the City to
implement at i ordinance which will effectively prohibit illicit and non -storm water discharges and illegal
connections ro the storm sewer system.
The attached draft ordinance defines an illicit discharge as "Any direct or indirect non -storm water
discharge to r storm drain system." The ordinance provides exemptions to the prohibition of illicit
discharges which include hydrant flushing, lawn watering, noncommercial washing of vehicles, swimming
pools, etc. It also provides the City with an appropriate amount of leverage to investigate and correct any
potential illicii t discharges.
Enforcement of this ordinance includes a notice of violation process, an appeal process, cost of abatement
provisions, cc >mpensatory action, and criminal prosecution.
The draft ordinance has been reviewed by the City Attorney.
SUMMARY:
Staff recomn ends a first reading of the draft ordinance with a second reading and adoption of the
ordinance at ihe May 19, 2009 Regular City Council Meeting.
G: \NPDES PH II \5- 5- 09CC- Illicit Discharge Ordinance.doc
CITY OF ROSEMOUNT
DAKOTA COUNTY, MINNESOTA
ORDINANCE NO.
SECTION:
AN ORDINANCE RELATING TO
ILLICIT DISCHARGE AND CONNECTION TO THE
CITY'S STORMWATER SYSTEM ORDINANCE
THE CITY COUNCIL OF THE CITY OF ROSEMOUNT, MINNESOTA ORDAINS
that the City Code of Ordinances is amended by adding new Chapter 2 to Title 10:
SECTION 1: Title 10 of the Rosemount City Code is amended by adding Chapter 2 to
read as follows:
10 -2 -1: Purpose /Intent
10 -2 -2: Definitions
10 -2 -3: Applicability
10 -2 -4: Responsibility for Administration
10 -2 -5: Severability
10 -2 -6 Ultimate Responsibility
10 -2 -7: Discharge Prohibitions
10 -2 -8: Suspension of MS4 Access
10 -2 -9: Industrial or Construction Activity Discharges
10 -2 -10: Monitoring of Discharges
10 -2 -11: Requirement to prevent, control and reduce storm water pollutants by the use of best
Management practices
10 -2 -12: Watercourse Protection
10 -2 -13 Notification of Spills
10 -2 -14: Enforcement
10 -2 -15: Enforcement Measures after Appeal
10 -2 -16: Cost of Abatement of the Violation
10 -2 -17: Injunctive Relief
10 -2 -18: Compensatory Action
10 -2 -19: Violations deemed a Public Nuisance
10 -2 -20: Criminal Prosecution
CHAPTER 2
10 -2 -1. Purpose /Intent.
The purpose of this Chapter is to provide for the health, safety, and general welfare
of the citizens of the City of Rosemount through the regulation of non -storm water
discharges to the storm drainage system to the maximum extent practicable as
The objectives of this Chapter are:
10 2 2. Definitions.
For the purposes of this Chapter, the following shall mean:
Authorized Enforcement Agency: the City of Rosemount.
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ORDINANCE NO.
required by federal and state law. This Chapter establishes methods for controlling
the introduction of pollutants into the municipal separate storm sewer system (MS4)
in order to comply with requirements of the National Pollutant Discharge
Elimination System (NPDES) permit process.
(a) To regulate the contribution of pollutants to the municipal separate storm
sewer system (MS4) by stormwater discharges by any user.
(b) To prohibit illicit connections and discharges to the municipal separate storm
sewer system.
(c) To establish legal authority to carry out all inspection, surveillance and
monitoring procedures necessary to ensure compliance with this Chapter.
Best Management Practices (BMPs): schedules of activities, prohibitions of
practices, general good house keeping practices, pollution prevention and
educational practices, maintenance procedures, and other management practices to
prevent or reduce the discharge of pollutants directly or indirectly to stormwater,
receiving waters, or stormwater conveyance systems. BMPs also include treatment
practices, operating procedures, and practices to control site runoff, spillage or leaks,
sludge or water disposal, or drainage from raw materials storage.
Clean Water Act: The federal Water Pollution Control Act (33 U.S.C. 1251 et
seq.), and any subsequent amendments thereto.
Construction Activity: Activities subject to NPDES Construction Permits. These
include construction projects resulting in land disturbance of one acre or more. Such
activities include but are not limited to clearing and grubbing, grading, excavating,
and demolition.
Hazardous Materials: Any material, including any substance, waste, or
combination thereof, that because of its quantity, concentration, or physical,
chemical, or infectious characteristics may cause, or significantly contribute to, a
substantial present or potential hazard to human health, safety, property, or the
environment when improperly treated, stored, transported, disposed of, or otherwise
managed.
Illegal Discharge: Any direct or indirect non -storm water discharge to the storm
drain system, except as exempted in this Chapter.
ORDINANCE NO.
Illicit Connections: An illicit connection is defined as any drain or conveyance,
whether on the surface or subsurface, that allows an illegal discharge to enter the
storm drain system including but not limited to any conveyances that allow any non
storm water discharge including sewage, process wastewater, and wash water to enter
the storm drain system and any connections to the storm drain system from indoor
drains and sinks, regardless of whether said drain or connection had been previously
allowed, permitted, or approved by an authorized enforcement agency or, any drain
or conveyance connected from a commercial or industrial land use to the storm
drain system that has not been documented in plans, maps, or equivalent records and
approved by an authorized enforcement agency.
Industrial Activity: Activities subject to NPDES Industrial Permits as defined in 40
CFR, Section 122.26 (b)(14).
National Pollutant Discharge Elimination System (NPDES) Storm Water
Discharge Permit: means a permit issued by MPCA that authorizes the discharge of
pollutants to waters of the United States, whether the permit is applicable on an
individual, group, or general area -wide basis.
Non -Storm Water Discharge: Any discharge to the storm drain system that is not
composed entirely of storm water.
Person: means any individual, association, organization, partnership, firm,
corporation or other entity recognized by law and action as either the owner or as
the owner's agent.
Pollutant: Anything that causes or contributes to pollution. Pollutants may include,
but are not limited to: paints, varnishes, and solvents; oil and other automotive
fluids; non hazardous liquid and solid wastes and yard wastes; refuse, rubbish,
garbage, litter, or other discarded or abandoned objects, pesticides, herbicides, and
fertilizers; hazardous substances and wastes and residues that result from
constructing a building or structure; and noxious or offensive matter of any kind.
Premises: Any building, lot, parcel of land, or portion of land whether improved or
unimproved including adjacent sidewalks and parking strips.
Storm Drain System: Publicly -owned facilities by which storm water is collected
and /or conveyed, including but not limited to any roads with drainage systems,
municipal streets, gutters, curbs, inlets, piped storm drains, pumping facilities,
retention and detention basins, natural and human -made or altered drainage
channels, reservoirs, and other drainage structures.
Storm Water: Any surface flow, runoff, and drainage consisting entirely of water
from any form of natural precipitation, and resulting from such precipitation.
Stormwater Pollution Prevention Plan: A document that describes the Best
Management Practices and activities to be implemented by a person or business to
10 -2 -5. Severability.
ORDINANCE NO.
identify sources of pollution or contamination at a site and the actions to eliminate
or reduce pollutant discharges to stormwater, stormwater conveyance systems,
and /or receiving waters to the maximum extent practicable.
Wastewater: means any water or other liquid, other than uncontaminated storm
water, discharged from a facility.
10 2 3. Applicability.
This Chapter shall apply to all water entering the storm drain system generated on
any developed or undeveloped lands unless explicitly exempted by an authorized
enforcement agency.
10 2 4. Responsibility for Administration.
The authorized enforcement agency shall administer, implement, and enforce the
provisions of this Chapter. Any powers granted or duties imposed upon the
authorized enforcement agency may be delegated in writing by the City
Administrator to persons or entities acting in the beneficial interest of or in the
employ of the agency.
The provisions of this Chapter are hereby declared to be severable. If any provision,
clause, sentence, or paragraph of this Chapter or the application thereof to any
person, establishment, or circumstances shall be held invalid, such invalidity shall not
affect the other provisions or application of this Chapter.
10 2 6. Ultimate Responsibility.
The standards set forth herein and promulgated pursuant to this Chapter are
minimum standards; therefore this Chapter does not intend or imply that compliance
by any person will ensure that there will be no contamination, pollution, or
unauthorized discharge of pollutants.
10 2 7. Discharge Prohibitions.
(a) Prohibition of Illegal Discharges.
No person shall discharge or cause to be discharged into the municipal storm
drain system or watercourses any materials, including but not limited to
pollutants or waters containing any pollutants that cause or contribute to a
violation of applicable water quality standards, other than storm water.
The commencement, conduct or continuance of any illegal discharge to the
storm drain system is prohibited except as described as follows:
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(b)
(1) The following discharges are exempt from discharge prohibitions
established by this Chapter: water line flushing or other potable water
sources, landscape irrigation or lawn watering, diverted stream flows,
rising ground water, ground water infiltration to storm drains,
uncontaminated pumped ground water, foundation or footing drains
(not including active groundwater dewatering systems), crawl space
pumps, air conditioning condensation, springs, noncommercial
washing of vehicles, natural riparian habitat or wet -land flows,
swimming pools (if dechlorinated typically less than one PPM
chlorine), fire fighting activities, and any other water source not
containing pollutants.
(2) Discharges specified in writing by the authorized enforcement agency
as being necessary to protect public health and safety.
(3) Dye testing is an allowable discharge, but requires a verbal
notification to the authorized enforcement agency prior to the time
of the test.
(4) The prohibition shall not apply to any non -storm water discharge
permitted under an NPDES permit, waiver, or waste discharge order
issued to the discharger and administered under the authority of the
Federal Environmental Protection Agency, provided that the
discharger is in full compliance with all requirements of the permit,
waiver, or order and other applicable laws and regulations, and
provided that written approval has been granted for any discharge to
the storm drain system.
Prohibition of Illicit Connections
ORDINANCE NO.
(1) The construction, use, maintenance or continued existence of illicit
connections to the storm drain system is prohibited.
(2) This prohibition expressly includes, without limitation, illicit
connections made in the past, regardless of whether the connection
was permissible under law or practices applicable or prevailing at the
time of the connection.
(3)
10 2 8. Suspension of MS4 Access.
A person is considered to be in violation of this Chapter if the person
connects a line conveying sewage to the MS4, or allows such a
connection to continue.
(a) Suspension due to illicit discharges in emergency situations.
The City Council may, without prior notice, suspend MS4 discharge access to
a person when such suspension is necessary to stop an actual or threatened
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10 -2 -10.
(b)
ORDINANCE NO.
discharge that presents or may present imminent and substantial danger to
the environment, or to the health or welfare of persons, or to the MS4 or
Waters of the United States. If the violator fails to comply with a suspension
order issued in an emergency, the authorized enforcement agency may take
such steps as it deems necessary to prevent or minimize damage to the MS4
or Waters of the United States, or to minimize danger to persons.
Suspension due to the detection of illicit discharge.
Any person discharging to the MS4 in violation of this Chapter may have
their MS4 access terminated if such termination would abate or reduce an
illicit discharge. The authorized enforcement agency will notify a violator of
the proposed termination of its MS4 access. The violator may petition the
authorized enforcement agency for reconsideration and a hearing. A person
commits an offense if the person reinstates MS4 access to premises
terminated pursuant to this Section, without the prior approval of the
authorized enforcement agency.
10 2 9. Industrial or Construction Activity Discharges.
Any person subject to an industrial or construction activity NPDES storm water
discharge permit shall comply with all provisions of such permit. Proof of
compliance with said permit may be required in a form acceptable to the City
Council prior to the allowing of discharges to the MS4.
Monitoring of Discharges.
(a) Applicability.
This section applies to all facilities that have storm water discharges
associated with industrial activity, including construction activity.
(b)
Access to Facilities.
(1) The authorized enforcement agency shall be permitted to enter and
inspect facilities subject to regulation under this Chapter as often as
may be necessary to determine compliance with this Chapter. If a
discharger has security measures in force that require proper
identification and clearance before entry into its premises, the
discharger shall make the necessary arrangements to allow access to
representatives of the authorized enforcement agency.
(2) Facility operators shall allow the authorized enforcement agency
ready access to all parts of the premises for the purposes of
inspection, sampling, examination and copying of records that must
be kept under the conditions of an NPDES permit to discharge
storm water, and the performance of any additional duties as defined
by state and federal law.
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(3)
(5)
ORDINANCE NO.
The authorized enforcement agency shall have the right to set up on
any permitted facility such devises as are necessary in the opinion of
the authorized enforcement agency to conduct monitoring and /or
sampling of the facility's storm water discharge.
(4) The authorized enforcement agency has the right to require the
discharger to install monitoring equipment as necessary. The facility's
sampling and monitoring equipment shall be maintained at all times
in a safe and proper operating condition by the discharger at its own
expense. All devises used to measure stormwater flow and quality
shall be calibrated to ensure their accuracy.
Any temporary or permanent obstruction to safe and easy access to
the facility to be inspected and /or sampled shall be promptly
removed by the operator at the written or oral request of the
authorized enforcement agency and shall not be replaced. The costs
of clearing such access shall be borne by the operator.
(6) Unreasonable delays in allowing the authorized enforcement agency
access to a permitted facility is a violation of a storm water discharge
permit and of this Chapter. A person who is the operator of the
facility with a NPDES permit to discharge storm water associated
with industrial activity commits an offense if the person denies the
authorized enforcement agency reasonable access to the permitted
facility for the purpose of conducting any activity authorized or
required by this Chapter.
(7) If the authorized enforcement agency has been refused access to any
part of the premises from which stormwater is discharged, and the
City is able to demonstrate probable cause to believe that there may
be a violation of this Chapter, or that there is a need to inspect
and /or sample as part of a routine inspection and sampling program
designed to verify compliance with this Chapter or any order issued
hereunder, or to protect the overall public health, safety and welfare
of the community, then the authorized enforcement agency may seek
issuance of a search warrant from any court of competent
jurisdiction.
Requirement to prevent, control, and reduce storm water pollutants
by the use of best management practices.
The City will adopt requirements identifying Best Management Practices (BMPs) of
any activity, operation, or facility that may cause or contribute to pollution or
contamination of storm water, the storm drain system, or waters of the U.S. The
owner or operator of a commercial or industrial establishment shall provide, at their
own expense, reasonable protection from accidental discharge of prohibited
7
ORDINANCE NO.
materials or other wastes into the municipal storm drain system or watercourses
through the use of these structural and non structural BMPs. Further, any person
responsible for a property or premise that is, or may be, the source of an illicit
discharge, may be required to implement, at said person's expense, additional
structural and non structural BMPs to prevent the further discharge of pollutants to
the municipal separate storm sewer system. Compliance with all terms and
conditions of a valid NPDES permit authorizing the discharge of storm water
associated with industrial activity, to the extent practicable, shall be deemed
compliant with the provisions of this section. These BMPs shall be part of a storm
water pollution prevention plan (SWPP) as necessary for compliance with
requirements of the NPDES permit.
10 2 12. Watercourse Protection.
Every person owning property through which a watercourse passes, or such person's
lessee, shall keep and maintain that part of the watercourse within the property free
of trash, debris, excessive vegetation, and other obstacles that would pollute,
contaminate, or significantly retard the flow of water through the watercourse. In
addition, the owner or lessee shall maintain existing privately owned structures
within or adjacent to a watercourse, so that such structures will not become a hazard
to the use, function, or physical integrity of the watercourse.
10 2 13. Notification of Spills.
Notwithstanding other requirements of law, as soon as any person responsible for a
facility or operation, or responsible for emergency response for a facility or operation
has information of any known or suspected release of materials that are resulting or
may result in illegal discharges or pollutants discharging into storm water, the storm
drain system, or water of the U.S. said person shall take all necessary steps to ensure
the discovery, containment, and cleanup of such release. In the event of such a
release of hazardous materials said person shall immediately notify emergency
response agencies of the occurrence via emergency dispatch services. In the event of
a release of non hazardous materials, said person shall notify the authorized
enforcement agency in person or by phone or facsimile no later than the next
business day. Notifications in person or by phone shall be confirmed by written
notice addressed and mailed to the City within three business days of the phone
notice. If the discharge of prohibited materials emanates from a commercial or
industrial establishment, the owner or operator of such establishment shall also
retain an on -site written record of the discharge and the actions taken to prevent its
recurrence. Such records shall be retained for at least three years.
10 2 14. Enforcement.
(a) Notice of Violation
Whenever the City finds that a person has violated a prohibition or failed to
meet a requirement of this Chapter, the authorized enforcement agency may
ORDINANCE NO.
order compliance by written notice of violation to the responsible person.
Such notice may require without limitation:
(1) The performance of monitoring, analysis, and reporting;
(2) The elimination of illicit connections or discharges;
(3) That violating discharges, practices, or operations shall cease and
desist;
(4) The abatement or remediation of storm water pollution or
contamination hazards and the restoration of any affected property;
(5)
The implementation of source control or treatment BMPs. If
abatement of a violation and /or restoration of affected property is
required, the notice shall set forth a deadline within which such
remediation or restoration must be completed. Said notice shall
further advise that, should the violator fail to remediate or restore
within the established deadline, the work will be done by a designated
governmental agency or a contractor and the expense thereof shall be
charged to the violator.
(6) The notice shall state that the determination of violation may be
appealed to the City Administrator by filing with the City Clerk a
written notice of appeal within seven calendar days of service of the
notice of violation.
10 2 15. Appeal of Notice of Violation.
Any person receiving a Notice of Violation may appeal the determination of the
authorized enforcement agency. The notice of appeal must be received by the City
Clerk with seven calendar days from the date of the Notice of Violation. Hearing on
the appeal before the City Administrator or the City Administrator's designee shall
take place within seven calendar days from the date of receipt of the notice of
appeal. The decision of the City Administrator or City Administrator's designee shall
be final.
10 2 16. Enforcement Measures after Appeal.
If the violation had not been corrected pursuant to the requirements set forth in the
Notice of Violation, or, in the event of an appeal, within 15 days of the decision of
the municipal authority upholding the decision of the authorized enforcement
agency, then representatives of the authorized enforcement agency shall enter upon
the subject private property and are authorized to take any and all measures
necessary to abate the violation and /or restore the property. It shall be unlawful for
any person, owner, agent or person in possession of any premises to refuse to allow
9
the government agency or designated contractor to enter upon the premises for the
purposes set forth above.
10 2 17. Cost of Abatement of the Violation.
Within 30 days after abatement of the violation, the owner of the property will be
notified of the cost of abatement, including administrative costs. If the amount due
is not paid within a timely manner as determined by the decision of the municipal
authority, the enforcement agency may levy the charges as a special assessment
against the property, which assessments shall constitute a lien on the property for the
amount of the assessment. Any person violating any of the provisions of this
Chapter shall become liable to the City by reason of such violation.
10 2 18. Legal Action.
It shall be unlawful for any person to violate any provision or fail to comply with any
of the requirements of this Chapter. If a person has violated and continues to violate
the provisions of this Chapter, the authorized enforcement agency may petition for a
preliminary or permanent injunction restraining the person from activities which
would create further violations or compelling the person to perform abatement or
remediation of the violation, or seek any other available remedy in law or equity.
10 2 19. Compensatory Action.
In lieu of enforcement proceedings, penalties, and remedies authorized by this
Chapter, the authorized enforcement agency and violator may agree on alternative
compensatory actions, such as storm drain stenciling, attendance at compliance
workshops, creek cleanup, etc.
10 -2 -20. Violations deemed a Public Nuisance.
ORDINANCE NO.
In addition to the enforcement processes and penalties provided, any condition
caused or permitted to exist in violation of any of the provisions of this Chapter is a
threat to public health, safety, and welfare, and is declared and deemed a nuisance,
and may be summarily abated or restored at the violator's expense, and /or a civil
action to abate, enjoin, or otherwise compel the cessation of such nuisance may be
taken.
10 2 21. Criminal Prosecution.
Any person that has violated or continues to violate this Chapter shall be liable to
criminal prosecution to the fullest extent of the law, and shall be subject to a criminal
penalty in accordance with Section 1 -4 -1. The authorized enforcement agency may
recover all attorneys' fees, court costs, and other expenses associated with
enforcement of this Chapter, including sampling and monitoring expenses.
SECTION 2: This Chapter shall be effective the day of 2009.
Adopted by the City Council of the City of Rosemount, Minnesota, the day of
200
ATTEST:
Amy Domeier, City Clerk
11
William H. Droste, Mayor
Published this day of 2009 in the Rosemount Town Pages.
ORDINANCE NO.