12-03 ILLICIT DISCHARGE DETECTION AND ELIMINATION

The City of Flagstaff hereby finds that: stormwater runoff from developed and undeveloped properties carries pollutants into the municipal stormwater system and local waters; property owners and users may or may not be aware of illicit discharges and connections. Illicit connections may be due to the connection of floor drains to the MS4. Additional sources of illicit discharges include but are not necessarily limited to: failing septic systems, illegal dumping/discharge practices, and the improper disposal of sewage from recreational practices. (Ord. 2018-32, Amended, 12/04/2018)

12-03-001-0002 PURPOSE

The purpose of this chapter is to provide for the health, safety, and general welfare of the citizens of the City of Flagstaff ("City") through the regulation of non-stormwater discharges to the MS4 to the Maximum Extent Practicable ("MEP") as required by Federal and State law. This chapter establishes methods for controlling the introduction of pollutants into the MS4 in order to comply with requirements of the Arizona Pollutant Discharge Elimination System ("AZPDES") or National Pollutant Discharge Elimination System ("NPDES") permit process. The objectives of this chapter are:

A. To regulate the contribution of pollutants to the MS4 by non-stormwater discharges;

B. To prohibit illicit connections and discharges to the MS4; and

C. To establish legal authority to carry out all inspection, surveillance, monitoring, and enforcement procedures necessary to ensure compliance with this chapter.

It is the intent of this chapter to comply with the City of Flagstaff Municipal Stormwater Permit and applicable Federal regulations (40 CFR 122.26), Arizona laws and regulations (ARS Title 49, Chap. 2 Article 3.1 and AAC Title 18, Chapter 9, Articles 9 and 10) AZPDES regulations for stormwater discharges, to be consistent with the stormwater quality provisions of the Federal Clean Water Act (33 U.S.C. § 1342), and to enable the City to comply with all applicable stormwater quality provisions of federal, state, and local laws and regulations to ensure the future health, safety, and general welfare of the citizens of Flagstaff, as well as the protection and preservation of the local environment. (Ord. 2018-32, Amended, 12/04/2018)

12-03-001-0003 DEFINITIONS

Unless the context specifically indicates otherwise, the meaning of words and terms used in this chapter shall be as set forth below.

ADEQ: The Arizona Department of Environmental Quality, a State agency delegated and charged with primary enforcement of the Federal Clean Water Act, under 33 U.S.C. § 1342(b).

AZPDES GENERAL PERMIT: An Arizona Pollutant Discharge Elimination System (AZPDES) general permit. A general permit issued by the ADEQ. AZPDES general permits include but are not limited to the following: small MS4 general permit, AZPDES construction activity general permit (CGP) for stormwater, AZPDES industrial stormwater nonmining multi-sector general permit (MSGP), and AZPDES de minimis general permit (into waters of the United States).

AZPDES INDIVIDUAL PERMIT: An AZPDES individual permit issued by the ADEQ. Individual permits are issued for specific industrial activities (sectors) for direct or indirect to discharge to waters of the United States, including but not limited to discharges into the Municipal Separate Stormwater System.

BEST MANAGEMENT PRACTICES (BMPS): Schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the discharge of pollutants to the MS4. BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.

CWA: The Clean Water Act or the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.

DISCHARGE: When used without qualification means the discharge of a pollutant.

ENFORCEMENT RESPONSE PLAN (ERP): The enforcement response plan adopted by the City Council.

EPA: The United States Environmental Protection Agency.

EROSION AND SEDIMENT CONTROL PLAN: A set of plans indicating the specific measures and sequencing to be used to control sediment and erosion on a development site during and after construction, including best management practices.

FACILITY: Any land, building, installation, structure, equipment, device, conveyance, area, source, activity or practice from which there is, or with reasonable probability may be, a discharge.

ILLICIT CONNECTION: Any manmade conveyance connecting an illicit discharge directly to an MS4.

ILLICIT DISCHARGE: Any discharge to the MS4 that is not composed entirely of stormwater, except for discharges allowed under the AZPDES general permit or individual permit.

MUNICIPAL SEPARATE STORM SEWER SYSTEM (MS4): A conveyance or system of conveyances, separate from the sanitary sewer system, consisting of all structures, basins, and natural or manmade channels that can collect, detain/retain, receive, or convey stormwater or other liquid that is discharged to a water of the United States from, or through, private property, public property, common areas, easements or rights-of-way, infrastructure, including but not limited to, roads with drainage systems, streets, catch basins, curbs, gutters, ditches, watercourses, culverts, water conduits, and storm drains.

MUNICIPAL STORMWATER PERMIT: The AZPDES small MS4 general permit which applies to certain Arizona cities, including the City of Flagstaff.

NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) PERMIT: A permit issued by EPA or by a state under authority delegated pursuant to 33 U.S.C. § 1342(b). This term includes an AZPDES individual permit.

PERSON: An individual, employee, officer, managing body, trust, firm, joint stock company, consortium, public or private corporation, including a government corporation, limited liability company, partnership, association or state, a political subdivision of this state, a commission, the United States government or any federal facility, interstate body or other entity.

POLLUTANT: Anything which causes or contributes to pollution. Pollutants may include, but are not limited to: contaminants, toxic wastes, chemicals, petroleum products, biological materials, wrecked or discarded equipment, rocks, sand, paints, varnishes and solvents, oil and other automotive fluids, nonhazardous liquid and solid wastes and yard wastes, refuse, rubbish, garbage, litter, or other discarded or abandoned objects, floatables, pesticides, herbicides, and fertilizers, hazardous substances and wastes, heat, sewage, fecal coliform and pathogens, dissolved and particulate metals, animal wastes, wastes and residues that result from constructing a building or structure, noxious or offensive matter of any kind, or any other liquid, solid, gaseous, or hazardous substance.

POLLUTION: The alteration of the physical, thermal, chemical, or biological quality of, or the contamination of, any water of the State or waters of the United States, that renders the water harmful, detrimental, or injurious to humans, animal life, vegetation, or property, or to the public health, safety, or welfare, or impairs the usefulness or the public enjoyment of the water for any lawful or reasonable purpose.

RECEIVING WATERS: A river, ocean, stream, or other watercourse into which wastewater, stormwater or treated effluent is discharged.

STORMWATER: Any surface flow, runoff, or drainage consisting entirely of water from any form of natural precipitation, and resulting from such precipitation.

STORMWATER MANAGEMENT PLAN: A document which describes the best management practices and activities to be implemented by the City to identify sources of pollution or contamination at a site and the actions to eliminate or reduce pollutant discharges to stormwater, stormwater drainage systems, and/or receiving waters to the maximum extent practicable.

STORMWATER POLLUTION PREVENTION PLAN (SWPPP): A document which describes the best management practices and activities to be implemented by a person or business to identify sources of pollution or contamination at a site and the action to eliminate or reduce pollutant discharges to stormwater, MS4, and/or receiving waters to the maximum extent practicable.

WASTEWATER: Any water or other liquid, other than uncontaminated stormwater, discharged from a facility.

WATERCOURSE: Any body of water, including but not limited to, lakes, ponds, rivers, streams, drainage ways and washes whether perennial, intermittent or ephemeral.

WATERS OF THE UNITED STATES (WOTUS):

1. All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

2. All interstate waters, including interstate wetlands;

3. All other waters such as interstate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters:

a) Which are or could be used by interstate or foreign travelers for recreational or other purposes;

b) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

c) Which are used or could be used for industrial purposes by industries in interstate commerce;

4. All impoundments of waters otherwise defined as waters of the Unites States under this definition;

5. Tributaries of waters identified in paragraphs (1) through (4) of this definition;

6. The territorial sea; and

7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs 1 through 6 of this definition.

Waters of the United States do not include: waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the CWA (except cooling ponds for steam electric generation stations per 40 CFR 423 are considered waters of the United States). Waters of the United States do not include: prior converted cropland as determined by any Federal agency (however, final authority regarding Clean Water Act jurisdiction remains with EPA). (Ord. 2018-32, Amended, 12/04/2018)

12-03-001-0004 APPLICABILITY

This chapter shall apply to all water entering the MS4 or its watercourses and all waters of the U.S. within the City limits, whether generated on any developed or undeveloped lands, unless explicitly exempted by the AZPDES general permit or an AZPDES individual permit. (Ord. 2018-32, Amended, 12/04/2018)

12-03-001-0005 RESPONSIBILITY FOR ADMINISTRATION

The City of Flagstaff Stormwater Management Section Manager or his or her designee shall administer, implement, and enforce this chapter. Any powers granted or duties imposed upon the Stormwater Management Section Manager may be delegated to persons or entities acting in the beneficial interest of or in the employ of the City of Flagstaff. Any person who has been delegated any power or duty described under this chapter is an authorized representative. (Ord. 2018-32, Amended, 12/04/2018)

12-03-001-0006 ULTIMATE RESPONSIBILITY

A. The standards set forth herein and promulgated pursuant to this chapter are minimum standards; compliance with this chapter does not guarantee that there will be no unauthorized discharge of pollutants and any person causing or allowing illicit discharges into the MS4 or waters of the United States remains responsible for compliance with the Clean Water Act.

B. No person shall cause or allow a misrepresentation in any document pertaining to an approved plan, permit, or certification relating to a discharge activity. (Ord. 2018-32, Amended, 12/04/2018)

12-03-001-0007 DISCHARGE PROHIBITIONS

No person shall cause of allow the following discharges to occur, unless expressly authorized pursuant to AZPDES general permit, NPDES permit, waiver, or waste discharge order issued to the discharger and administered under the authority of the EPA or the ADEQ; and 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:

A. Illicit discharges to the MS4 or waters of the United States;

B. Any discharge that is a source of pollutants to the MS4 or waters of the United States;

C. Any discharge that contributes a pollutant to stormwater within the City;

D. Any discharge that contributes to a violation of the City’s municipal stormwater permit;

E. Establishing, using, and/or maintaining any connection that allows a discharge that contributes a pollutant to stormwater;

F. Depositing, dumping or storing any materials in a manner that may contribute a pollutant to, or obstruct the flow of, stormwater;

G. Discharges from commercial car washing, mobile car washing, or impervious surface pressure washing operations. (Ord. 2018-32, Amended, 12/04/2018. Formerly 12-03-001-0008)

12-03-001-0008 PERMISSIBLE DISCHARGES

The following categories of non-stormwater discharges are permissible, except in the case where the activities are identified by ADEQ or the City of Flagstaff in writing as significant contributors of pollutants to or from the MS4: water line flushing, landscape irrigation, diverted stream flows, rising ground waters, uncontaminated ground water infiltration, uncontaminated pumped ground water, discharges from potable water sources, foundation drains, air conditioning condensation, irrigation water, springs, water from crawl space pumps, footing drains, lawn watering, individual residential car washing, flows from riparian habitats and wetlands, dechlorinated swimming pool discharges, street wash water, discharges or flow from firefighting, and operations determined by the City as being necessary to protect public health and safety. (Ord. 2018-32, Enacted, 12/04/2018)

12-03-001-0009 PROHIBITION OF ILLICIT CONNECTIONS

No person shall cause or allow the construction, use, maintenance or continued existence of illicit connections to the storm drain system.

This prohibition expressly includes, without limitation, illicit connections made in the past, regardless of whether the connection was permissible under law or practices applicable or prevailing at the time of connection.

A person is considered to be in violation of this chapter if the person connects a line conveying a pollutant to the MS4, or allows such a connection to continue. (Ord. 2018-32, Amended, 12/04/2018)

12-03-001-0010 SUSPENSION OF MS4 ACCESS

A. Immediate Suspension. The City may, without prior notice, suspend MS4 discharge access when such suspension is necessary to stop an actual or threatened discharge, which presents or may present imminent and substantial danger to the environment, or to the health or welfare of persons, or to the MS4. If the violator fails to comply with a suspension order issued in an emergency, the City may take such steps as deemed necessary to prevent or minimize damage to the MS4, or to minimize danger to persons.

B. Cease and Desist Order. Any person discharging to the MS4 in violation of this chapter may be subject to MS4 access termination if such termination would abate or reduce an illicit discharge or prohibited discharge. The City will issue a cease and desist order notifying the violator of the proposed termination date of its MS4 access. The violator may petition the City Water Services Director for a reconsideration and/or hearing on appeal to the Water Commission.

C. It is unlawful for any person to reinstate MS4 access to premises terminated by the City pursuant to this section, without the prior approval of the City of Flagstaff Stormwater Management Section. (Ord. 2018-32, Amended, 12/04/2018)

12-03-001-0011 INDUSTRIAL OR CONSTRUCTION ACTIVITY DISCHARGES

Any person subject to an industrial or construction activity AZPDES general permit shall comply with all provisions of such permit. Proof of compliance with said permit may be required by City. (Ord. 2018-32, Amended, 12/04/2018)

12-03-001-0012 RESERVED

(Ord. 2018-32, Amended, 12/04/2018)

12-03-001-0013 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. All maintenance activities must be in compliance with Federal, State and municipal regulations. (Ord. 2018-32, Amended, 12/04/2018)

12-03-001-0014 NOTIFICATION OF SPILLS

The owner, operator, or the person who has control of the source or location of any potential spill or release, which may result in a discharge that is not in compliance with this chapter, shall:

A. Post notices to employees containing information about whom to contact and what procedures to follow in the event of an accidental discharge or spill.

B. In the event of a spill, promptly take all reasonable safety precautions including, if appropriate, calling 911 and completing the following steps:

1. Proceed with containment and clean up in accordance with:

a. The orders of an involved health and safety agency, or if no such orders have been issued;

b. The orders of an authorized representative, or if no such orders have been issued;

c. The Stormwater Pollution Prevention Plan or approved corrective action plan utilizing best management practices for the involved facility.

2. Report any violations of the Flagstaff Fire Code or other such applicable safety or health codes in the manner required by such code;

3. Notify the City of Flagstaff Stormwater Management Section and the Arizona Department of Environmental Quality of the release by telephone before noon of the next working day;

4. Provide written notification, within five (5) working days, to the City of Flagstaff, Stormwater Management Section of the type, volume, cause of the discharge, corrective actions taken, and measures to be taken to prevent future occurrences. (Ord. 2018-32, Amended, 12/04/2018)

12-03-001-0015 ENFORCEMENT

12-03-001-0015.1 ENFORCEMENT RESPONSE PLAN

The City of Flagstaff has adopted an Enforcement Response Plan for stormwater regulatory compliance. A copy of this plan will be posted on the Division website and is maintained by the City Clerk as a public record. The plan describes: (A) the City investigation process; (B) escalating enforcement process; (C) the City officials, by title, responsible for each response action; (D) administrative fines and/or penalties for specific or recurring violations. (Ord. 2018-32, Enacted, 12/04/2018)

12-03-001-0015.2 INSPECTIONS

A. The ADEQ or its authorized agents, including the City if the City has been delegated inspection authority, shall have the right to enter onto any premises at reasonable times to inspect any facility or equipment, practices or operations regulated or required under an AZPDES general permit or individual permit. The authority for such inspections is found in the small MS4 general permit, ADEQ regulation, and 40 CFR § 122.41.

B. The City shall have the right to enter onto any premises at reasonable times to inspect any facility or equipment, practices or operations for compliance with any permit or approval issued by City for the premises that includes a right of inspection, including but not limited to a permit for grading, building, or discharge of pretreated industrial waste. City will endeavor to provide reasonable notice prior to inspection. The City may be requested to provide credentials for entry and inspection. If a discharger has security measures in effect which require proper identification and clearance before entry into its premises, the discharger shall make the necessary arrangements to allow access to representatives of the City.

C. The City may request written permission from any person who is causing or allowing illicit discharges into the MS4 for a right of entry onto the premises for purposes of inspection for compliance with this chapter. If such person fails to provide City with a right of entry, and the City has probable cause to believe illicit discharges are occurring, the City may apply with the court for an order or warrant allowing inspection. (Ord. 2018-32, Enacted, 12/04/2018)

12-03-001-0015.3 NOTICE OF VIOLATION

A. Whenever the City discovers that any person appears to have caused or allowed a violation of this chapter, the City may issue to any person(s) deemed responsible a written notice of violation ("NOV"). The notice shall be served either by personal service or certified mail, upon the last known address of record for owner, the owner’s agent, the occupant, and/or the lessee.

B. The notice may include but is not limited to:

1. Alleged violation and factual basis for allegation;

2. An order for corrective action, the corrective action required, the time frame for corrective action;

3. Administrative fines and/or penalties for continued noncompliance;

4. A statement that failure to pay the administrative fines and/or penalties or take corrective action may result in a lien against the property;

5. An order to show cause why the City should not bring an action in Superior Court seeking injunctive relief and/or civil penalties, or an action in municipal court seeking criminal penalties, and hearing date, time and location;

6. The time for response to the NOV or appeal.

C. The notice may also require the violator to:

1. Submit a corrective action plan to the City of Flagstaff Stormwater Management Section indicating the cause of the violation, corrective actions to prevent recurrence, and a proposed compliance schedule;

2. Pay all costs of sampling and analysis, as well as costs for laboratory sample analysis;

3. Clean up any material that has left the property or has the potential to impact stormwater runoff, ensure that the clean up has been completed, and make changes in operations to prevent future releases;

4. Obtain and pay for the services of a qualified person to oversee and certify that corrective actions needed to resolve the violation have been completed;

5. Prepare and implement a Best Management Practices Plan to prevent stormwater pollution, regardless of AZPDES/NPDES requirements;

6. Stop work on clearing, dredging, grading, excavating, storing, transporting, and/or filling of land, new construction, improvements, alterations, or additions;

7. Stop any activity, including but not limited to construction pursuant to a City building or grading permit, which such activity is causing a violation of this chapter;

8. Abate, within the time specified in the notice, any condition that is in violation of this chapter; and

9. Abate immediately any condition in violation of this chapter, if the Stormwater Management Section authorized representative determines that such condition presents an immediate threat to public health, safety, or the environment;

10. If violator refuses or is unable to immediately abate a condition that presents an immediate threat to public health, safety or the environment the City may use all means necessary to abate the incident to protect the public health, safety or the environment and the City may charge all costs of such abatement to the violator.

D. Any person who receives an NOV shall respond to the City within ten (10) days from receipt, or other reasonable time specified in the NOV or as approved by the City in writing. The response shall be completed and address the issues raised in the NOV.

E. The City will promptly review the response. If a response is deficient City may require submittal of additional information, suspend a user’s permit, issue a cease and desist order, issue a compliance order, or take further enforcement actions. The City may approve or modify the user’s proposed corrective action plan utilizing best management practices and compliance schedule as part of an order. If the City discovers a condition that is likely to cause or is causing a discharge that threatens public health, safety or the environment, mitigation may include an immediate cessation of activity and abatement. (Ord. 2018-32, Amended, 12/04/2018. Formerly 12-03-001-0015.1)

12-03-001-0015.4 ORDER TO SHOW CAUSE HEARING

The City may conduct an order to show cause hearing prior to bringing an enforcement action in court. At an order to show cause hearing, any person who has violated, or continues to violate, City water, wastewater, or stormwater regulations, or related permit, consent order or similar agreement, shall appear before the City Stormwater Manager and show cause why the City’s proposed enforcement action should not be taken. Notice of the hearing date, time, and location shall be served on the person at least ten (10) days prior to the hearing. (Ord. 2018-32, Enacted, 12/04/2018)

12-03-001-0015.5 CONSENT ORDERS

The City may enter into consent orders, negotiated settlements, or similar agreements with any person responsible for noncompliance with this chapter. Such agreements may include but are not limited to the following: (A) findings of violation; (B) corrective action plan; (C) compliance schedule; (D) best management practices to be implemented; (E) agreement to cease specific operations or discharges until certain measures are taken; (F) times for follow-up inspection or testing; (G) administrative fines established pursuant to the criteria of the Enforcement Response Plan; (H) interest on late payments of administrative fines not to exceed one percent (1%) per month; (I) recovery of damages or costs incurred by City; (J) public notice and publication of violations. Such agreements shall be executed by both parties and are enforceable in a court of law. (Ord. 2018-32, Enacted, 12/04/2018)

12-03-001-0015.6 COMPLIANCE ORDERS

Whenever the City finds that a person has violated, or continues to violate, any water, wastewater, or stormwater regulation, or that violations are likely to recur, the City may issue an order to: (A) come into compliance within a specific time period; (B) take other actions to prevent further violations within a specific time period; and (C) pay administrative fines for violations assessed under the Enforcement Response Plan. A compliance order does not relieve a person of liability for any violation, including a continuing violation. A compliance order shall include a statement explaining appeal rights, and the effect of failure to appeal. (Ord. 2018-32, Enacted, 12/04/2018)

12-03-001-0015.7 CEASE AND DESIST ORDERS

Whenever the City finds that a person has violated, or continues to violate, any water, wastewater, or stormwater regulation, or that violations are likely to recur, the City may issue an order to: (A) immediately cease and desist violations; (B) immediately comply with all requirements; (C) take appropriate corrective or preventive action as needed to address a continuing or threatened violation. A cease and desist order is generally ordered to prevent immediate and unreasonable harm or damages. A cease and desist order does not relieve a person of liability for any violation, including a continuing violation. The cease and desist order shall include a statement explaining appeal rights, and the effect of failure to appeal. (Ord. 2018-32, Enacted, 12/04/2018)

12-03-001-0015.8 APPEALS TO WATER COMMISSION

A. Any person receiving a compliance order or cease and desist order may appeal the determination. The notice of appeal must be received by the Stormwater Manager within ten (10) days from receipt of such order and include the following:

1. The request for hearing must be in writing, state the objection to the notice of violation, and be mailed or delivered to the Stormwater Manager;

2. The Stormwater Manager shall, within ten (10) working days of the receipt of an appeal, provide notice of date and time set for a hearing;

3. The City Water Commission will conduct hearings on appeals under City Code (Chapters 7-01, 7-02, 7-03, and 12-03) according to its usual rules of procedure, and the hearing shall be continuous until the Water Commission closes the record. The user may be heard in person or by its authorized representative at such hearing. Hearings shall be conducted informally as to the order of proceeding and presentation of evidence. The Water Commission shall admit evidence over hearsay objections where the offered evidence has substantial probative value and reliability. Further, copies of records and documents prepared in the ordinary course of business may be admitted, without objection as to foundation, but subject to argument as to weight, admissibility, and authenticity. Summary business records may be admitted subject to satisfactory proof of the reliability of the summaries. In all cases, the decision of the Water Commission shall be made solely upon substantial and reliable evidence presented with the user’s protest or at the hearing. All expenses incurred in the hearing shall be paid by the party incurring the same.

4. The Water Commission shall issue its decision not later than thirty (30) days after the close of the record thereon. Any refund of surcharges or penalties ordered by the Water Commission pursuant to a hearing hereunder shall be made within thirty (30) days of the Water Commission’s order therefor, or at such later date as the Water Commission shall provide in its order. The Water Commission’s decision shall be final.

B. If the time for appeal has expired, or following a final decision, the City Attorney’s Office may take all actions deemed necessary to enforce the City notice of violation, compliance order, cease and desist order, or such final decision. (Ord. 2018-32, Amended, 12/04/2018. Formerly 12-03-001-0015.2)

12-03-001-0015.9 ADMINISTRATIVE FINES

Whenever the City finds that person has violated, or continues to violate, any provision of City Code (Chapters 7-01, 7-02, 7-03, and 12-03), a City order or permit issued thereunder, or consent order, the City may fine such person in an amount determined pursuant to the Enforcement Response Plan and administrative fine policy established therein. For continuing violations, each day may constitute a violation. Such fines shall be assessed on a per violation, per day basis. In the case of monthly or other long-term average discharge limits, fines shall be assessed for each day during the period of violation. The City may add the costs of publication (notice of significant noncompliance of an industrial user) to the fine. (Ord. 2018-32, Enacted, 12/04/2018)

12-03-001-0015.10 CIVIL AND CRIMINAL PENALTIES

A. Civil Penalties – Stormwater Violations. Any person who has violated, or continues to violate, any provision of this chapter is liable to the City for a civil penalty in an amount not to exceed two thousand five hundred dollars ($2,500.00) per violation per day, pursuant to A.R.S. Section 49-371(A) as may be amended.

B. Criminal Penalties. Unless otherwise provided or designated, any person convicted of a willful or negligent violation of any section of this chapter is guilty of a misdemeanor and shall be fined in a sum not to exceed two thousand five hundred dollars ($2,500.00) for any one offense, and a person may be confined in the County jail for a period not exceeding ninety (90) days. Any violation which is continuing in nature shall constitute a separate offense on each successive date the violation continues, unless otherwise provided.

C. State or Federal Enforcement Penalties. The City may refer a violation of the Clean Water Act to the ADEQ or Attorney General’s Office for enforcement pursuant to A.R.S. Section 49-261 et seq. A person who violates the Clean Water Act or any Clean Water Act regulation or permit is liable for a civil penalty not to exceed two thousand five hundred dollars ($25,000.00) per day per violation, pursuant to A.R.S. Section 49-262, or criminal penalties and/or imprisonment as set forth in A.R.S. Section 49-263 et seq., as may be amended, and/or to civil and criminal penalties under Federal law 40 CFR 122.41(a). (Ord. 2018-32, Enacted, 12/04/2018)

12-03-001-0015.11 ABATEMENT OF THE VIOLATION

A. If the violation of the City Code (Chapters 7-01, 7-02, 7-03, 12-03) has not been corrected pursuant to the requirements set forth in the notice of violation, the corrective action plan approved by the City, the consent order, the compliance order, or the cease and desist order, then representatives of the City may seek injunctive relief to proceed with abatement itself and charge the costs back to the responsible persons.

B. Prior to undertaking any nonemergency abatement action, City will present the responsible person with an estimate of costs of abatement. Within thirty (30) days after abatement of the violation, the owner of the property will be notified of the actual cost of abatement, including administrative costs. The property owner may file a written protest objecting to the amount of the assessment within fifteen (15) days. If the amount due is not paid within fifteen (15) days or by the time in which to file for an appeal is expired, the charges shall become a special assessment against the property and shall constitute a lien on the property for the amount of the assessment. The assessment shall be recorded in the office of the Coconino County Recorder, including the date, amount of the assessment, and the legal description of the property against which the assessment is made. From the date of its recording, the assessment shall be a lien on the property and shall accrue interest at the rate prescribed by A.R.S. Section 44-1201. The City shall have the right to bring an action to enforce the lien in the Superior Court of Coconino County at any time after the recording of the assessment, but failure to enforce the lien by such action shall not affect its validity. The recorded assessment shall be prima facie evidence of the truth of all matters recited therein, and of the regularity of all proceedings prior to the recording of the assessment. (Ord. 2018-32, Amended, 12/04/2018. Formerly 12-03-001-0015.4)

12-03-001-0015.12 INJUNCTIVE RELIEF

It shall be unlawful for any person to violate any provisions or to fail to comply with any of the requirements of this chapter. If a person has violated or continues to violate any provisions of this chapter, the City may petition the Coconino County Superior Court 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. (Ord. 2018-32, Amended, 12/04/2018. Formerly 12-03-001-0015.5)

12-03-001-0015.13 VIOLATIONS DEEMED A PUBLIC NUISANCE

In addition to the enforcement processes and penalties provided herein, if 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 by the City, such condition may be immediately 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. (Ord. 2018-32, Amended, 12/04/2018. Formerly 12-03-001-0015.6)

12-03-001-0015.14 REMEDIES NOT EXCLUSIVE

The remedies listed in this chapter are not exclusive of any other remedies available under any applicable Federal, State or local law and it is within the discretion of the City of Flagstaff to seek cumulative remedies. The City may recover all attorneys’ fees, court costs, and other expenses associated with enforcement of this chapter, including sampling and monitoring expenses. (Ord. 2018-32, Amended, 12/04/2018. Formerly 12-03-001-0015.7)

CHAPTER 12-03ILLICIT DISCHARGE DETECTION AND ELIMINATION

12-03-001-0001 FINDING OF FACT