Chapter 13.40
CONTROL OF NON-STORMWATER DISCHARGE
Sections:
13.40.030 Responsibility for administration.
13.40.040 Discharge prohibitions.
13.40.050 Prohibition of illicit connections.
13.40.060 Suspension of stormwater access.
13.40.070 Industrial or construction activity discharges.
13.40.090 Watercourse protection.
13.40.010 Definitions.
For the purposes of this chapter, the following shall mean:
A. “Best management practices (BMPs)” means schedules of activities, prohibited practices, general good housekeeping 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.
B. “Clean Water Act” means the federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.) and any subsequent amendments thereto.
C. “Construction activity” means activities subject to NPDES construction permits.
D. “Hazardous materials” means any material, including any substance, waste, or combination thereof, which because of its quantity, concentration, or physical, chemical or infectious characteristics may cause, or significantly contribute to, a substantial present or potential hazard to human health safety, property, or the environment when improperly treated stored, transported, disposed of or otherwise managed. Any material defined in the Wellhead Protection Manual, adopted pursuant to FMC 16.10.010(C) and Resolution No. 2-2003.
E. “Illicit discharge” means any discharge to the municipal separate storm sewer that is not composed entirely of stormwater, except discharges pursuant to an NPDES permit, and discharges resulting from precipitation or fire fighting activities.
F. “Illicit connections” means an illicit connection that is:
1. Any drain or conveyance, whether on the surface or subsurface, that allows an illicit discharge to enter the storm drain system including but not limited to any conveyances which allow any non-stormwater 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 the drain or connection had been previously allowed, permitted, or approved by an authorized enforcement agency;
2. Any drain or conveyance connected from a commercial or industrial use to the storm drain system that has not been documented in plans, maps, or similarly descriptive materials and approved by the city.
G. “Industrial activity” means activities subject to NPDES industrial permits as defined in 40 C.F.R. Section 122.26(b)(14) or within the Wellhead Protection Area as defined in FMC 16.10.010.
H. “Municipal separate storm sewer” or “MS4” as used in this chapter means a conveyance or system of conveyances located within the city limits of the city of Fairview; owned by the city of Fairview, city of Gresham, or Multnomah County, or any other public body operating within the city limits; and which is designed or used for collecting or conveying stormwater which is not a combined sewer and which is not part of a publicly owned treatment works as defined in 40 C.F.R. Section 122.2.
I. “National Pollution Discharge Elimination System (NPDES) stormwater discharge permit” means a permit issued by Oregon Department of Environmental Quality under the authority of the U.S. Environmental Protection Agency that authorizes the discharge of pollutants to waters of the United States.
J. “Non-stormwater discharge” means any discharge to the storm drain system that is not composed entirely of stormwater.
K. “Person” means any individual, association, organization, partnership, firm, corporation, or other entity in law and acting as either the owner or owner’s agent.
L. “Pollutant” means anything that causes or contributes to pollution. Pollutants may include but are not limited to 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 and accumulations that may cause or contribute to pollution; floatables; pesticides, herbicides and fertilizers; hazardous substances and wastes; sewage, fecal coliform and pathogens; dissolved and particulate metals; animal wastes; wastes and residues that result from constructing a building or structure; and noxious or offensive matter of any kind.
M. “Stormwater” means stormwater runoff, snowmelt runoff, and surface runoff and drainage.
N. “Wastewater” means any water or other liquid, other than uncontaminated stormwater, discharged from a facility. (Ord. 8-2004 §§ 1, 2)
13.40.020 Application.
This chapter shall apply to all water entering the city of Fairview storm drain system and generated on any developed and undeveloped property unless specifically exempted. (Ord. 8-2004 §§ 1, 2)
13.40.030 Responsibility for administration.
The city of Fairview, through its public works department, shall be responsible for administering, implementing, and directing enforcement of the provisions of this chapter. Any powers granted or duties imposed upon the city may be delegated by the public works director to appropriate personnel. (Ord. 8-2004 §§ 1, 2)
13.40.040 Discharge prohibitions.
A. Prohibition of Illicit 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 stormwater.
B. Exemptions.
1. Conducting or continuing any illicit discharge to the storm drain system is prohibited unless the discharge meets any of the exemptions described in this section:
a. Water line flushing or other potable water sources;
b. Landscape irrigation or lawn watering;
c. Diverted stream flows;
d. Rising groundwater or groundwater infiltration to storm drains;
e. Uncontaminated pumped groundwater;
f. Foundation or footing drains (not including active groundwater dewatering systems);
g. Crawl space pumps;
h. Air-conditioning condensation;
i. Springs;
j. Noncommercial washing of vehicles;
k. Natural riparian habitat or wetland flows;
l. Swimming pools (if dechlorinated less than one PPM chlorine);
m. Fire fighting activities; and
n. Any other water source not containing pollutants.
2. The public works director may prohibit a specific discharger from engaging in a specific activity listed in subsection (B)(1) of this section if at any time the public works director has reasonable grounds, based on standards in the industry in the Portland metropolitan area, to believe that a specific discharge is, was, or may be a significant source of pollution.
3. A nonexempt discharge may be allowed if it is approved in writing by the public works director on the basis that the discharge is necessary to protect public health and safety.
4. Discharge comprised of dye testing may be allowed; provided, that prior to any dye test, oral or written notification of the discharge, including time and place, is submitted to the public works director. The city will retain a record of such notifications.
C. Limit on Prohibition. The prohibitions of this section shall not apply to any non-stormwater discharge permitted under an NPDES permit, waiver, or waste discharge order issued to the discharger and administered under the authority of the Oregon Department of Environmental Quality or U.S. Environmental Protection Agency. (Ord. 8-2004 §§ 1, 2)
13.40.050 Prohibition of illicit connections.
A. Constructing, using, maintaining, or continuing an illicit connection to the storm drain system is prohibited.
B. This prohibition expressly includes, without limitation, illicit connections existing prior to the date of this regulation, regardless of whether the connection was permissible under any law or practice applicable at the time of connection.
C. Connection of a line conveying sewage to the separate municipal storm sewer, or allowing such a connection to continue, is a violation of this chapter. (Ord. 8-2004 §§ 1, 2)
13.40.060 Suspension of stormwater access.
A. Suspension Due to Illicit Discharge in Emergency. The public works department may, without prior notice, suspend MS4 discharge access to a person when the suspension is necessary to stop or prevent an actual or threatened 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.
B. Emergency Suspension Order. In the event the city issues a suspension order to a person, and such person fails to comply with the order, the public works director or his or her designee may take such steps deemed necessary to prevent or minimize damage or harm to the MS4 or waters of the United States, or to minimize danger to persons.
C. Suspension Due to Detection of Illicit Discharge. The city of Fairview may terminate any person’s access to the municipal separate storm sewer if the person is discharging in violation of this chapter and the public works director determines that termination would abate or reduce an illicit discharge. The city will provide notice of violation and termination as provided in FMC 13.40.110.
D. It shall be a violation of this chapter if a person reinstates access to the municipal separate storm sewer that has been terminated pursuant to this section, without the prior approval of the city. (Ord. 8-2004 §§ 1, 2)
13.40.070 Industrial or construction activity discharges.
A. Compliance Required. Any person subject to an industrial or construction activity NPDES stormwater discharge permit shall comply with all provisions of such permit. Proof of compliance with a permit under this section shall be required in a form acceptable to the public works department prior to the city allowing any discharge to the municipal separate storm sewer. The public works director may allow a person to submit a copy of a new, existing, or renewed NPDES permit to meet the purposes of this subsection.
B. Monitoring of Discharges.
1. Application. This section applies to all facilities that have stormwater discharges associated with industrial activity, including construction activity.
2. Access to Facilities.
a. Inspection. The city of Fairview public works department is permitted to enter and inspect facilities subject to regulation under this chapter as may be necessary to determine compliance with this chapter. If a discharger has security measures in force that require personal identification and clearance before entry onto the premises, the discharger shall make the necessary arrangements to allow access to city personnel.
b. Facility operators shall allow the public works department 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 stormwater, and the performance of any additional duties as defined by state and federal law.
c. On any permitted facility, the public works department shall have the authority to set up devices that in the opinion of the public works department are necessary to conduct monitoring and/or sampling of the facility’s stormwater discharge.
d. The public works department has the authority to require an operator to install monitoring equipment. At all times and at its own expense, the operator shall maintain the facility’s sampling and monitoring in a safe and proper operating condition. All devices used to measure stormwater flow and quality shall be calibrated to ensure accuracy.
e. At the written or oral request of the public works department, the operator shall promptly and permanently remove any temporary or permanent obstruction to safe and easy access to the facility to be inspected and/or sampled. The discharger shall be responsible for the cost of removal of any such obstruction.
f. An unreasonable delay in allowing access to a facility by the public works department for the purpose of inspection or monitoring is a violation of an NPDES stormwater discharge permit and this chapter. The operator of a facility with an NPDES permit to discharge stormwater associated with industrial activity commits a violation if the operator denies reasonable access to the permitted facility for the purpose of conducting any activity authorized or required by this chapter.
g. If the operator of a facility has refused the public works department access to any part of the premises from which stormwater is discharged, and the person acting on behalf of the public works department has a reasonable belief that a violation of the chapter has occurred or may imminently occur, or that there is a need to inspect or sample as part of a routine inspection and sampling program designed to verify compliance with this chapter or any order issued by the city under this chapter, or to protect the public health, safety, and welfare, then the public works department may request the city of Fairview law enforcement agency seek issuance of a search warrant of the premises from any court of competent jurisdiction.
h. The city shall establish a reporting form and schedule of monitoring discharges on property with industrial use or construction less than one acre in size, where a construction permit or NPDES permit is not required. (Ord. 8-2004 §§ 1, 2)
13.40.080 Requirements to prevent, control, and reduce stormwater pollutants through use of best management practices.
A. BMPs Adopted. The city of Fairview has adopted a stormwater management plan that identifies best management practices (BMPs) for activities, operations, or facilities which may cause or contribute to pollution or contamination of stormwater, the storm drain system, or waters of the United States.
B. Protection from Discharge Using BMPs. The owner or operator of a commercial or industrial facility shall provide (and pay for) reasonable protection from accidental discharge of prohibited materials or other wastes into the municipal storm drain system or watercourses through the use of these structural and nonstructural BMPs.
C. Responsibility to Prevent Further Illicit Discharge. Any person responsible for a property or premises that is or may be the source of an illicit discharge may be required to implement and pay for additional structural and nonstructural 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 stormwater associated with industrial activity, to the extent practicable, shall be deemed compliance with the provisions of this section. The city’s adopted BMPs shall be part of a stormwater pollution prevention plan (SWPPP) as necessary for compliance with requirements of the NPDES permit. (Ord. 8-2004 §§ 1, 2)
13.40.090 Watercourse protection.
Every owner or lessee of property through which a watercourse passes 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. (Ord. 8-2004 §§ 1, 2)
13.40.100 Notice of spills.
A. In General. Notwithstanding any other law or regulation, 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 which are resulting or may result in illicit discharges or pollutants discharging into stormwater, the storm drain system, or waters of the United States, such person shall take all necessary steps to ensure the discovery, containment, and cleanup of such release.
B. Hazardous Materials. In the event of a release of hazardous materials as defined (in this chapter or FMC 16.10.010), the responsible person shall immediately notify emergency response agencies including the Gresham fire department and city of Fairview of the occurrence via emergency dispatch services.
C. Nonhazardous Materials. In the event of a release of nonhazardous materials, the person shall notify the Fairview PWD in person, by telephone, or by facsimile no later than the next business day. Notifications in person or by telephone shall be confirmed in writing addressed and mailed to the city of Fairview public works director within three business days of the oral notice.
D. Record Requirement. If the discharge of prohibited materials originates from a commercial or industrial facility, the owner or operator of such facility shall retain a written record of the discharge and the actions taken to prevent its recurrence. Such records shall be retained at the facility for at least three years. (Ord. 8-2004 §§ 1, 2)
13.40.110 Enforcement.
A. Violation. It shall be a violation of this chapter for any person to fail to comply with the provisions of this chapter.
1. Penalty. Penalty for conviction of a first violation of this chapter shall be $250.00. A penalty of $1,000 may be imposed for each subsequent failure or continuing failure to comply with any provision of this chapter following written notice pursuant to this section. Each day of a continuing violation shall constitute a separate offense.
2. Notice of Violation. Upon information that a violation of any provision of this chapter has occurred, the city of Fairview may order compliance by written notice of violation to the responsible person. Such notice may require without limitation:
a. The performance of monitoring, analysis, and reporting;
b. The elimination of illicit connections or discharges;
c. That discharges, practices or operations in violation of this chapter shall cease and desist;
d. The abatement or remediation of stormwater pollution or contamination hazards and the restoration of any affected property;
e. Payment of a fine to cover administrative and remediation costs;
f. The implementation of source control or treatment BMPs.
3. Content of Notice.
a. For the first failure to comply with any provision of this chapter, the public works director shall cause to be issued to the affected person a written notice which includes the following information:
i. A statement specifying the violation committed;
ii. A specified time period within which the affected person must correct the failure;
iii. The time period of five calendar days to file a written request disputing the notice of failure to comply;
iv. A statement setting forth the right to request a hearing on appeal; and
v. A statement of the penalty for continued noncompliance.
b. Any statement informing a violator of a citation shall include a notice setting forth the hearing rights provided by Fairview Municipal Code or applicable city ordinance.
c. If abatement, violation, or restoration of affected property is required, the notice shall set forth a deadline within which such action must be completed. The notice shall include the information that should the violator fail to remediate or restore within an 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. The city may place a lien on property for the cost of work performed at the city’s direction, as provided by law.
B. Appeal of Notice of Violation and Penalty.
1. Right to Appeal. Any person receiving a notice of violation may appeal the notice by requesting a hearing on a form provided by the city within the time and manner set forth in this section. No hearing request shall be deemed timely filed and no hearing shall be held unless within the time period to request a hearing, the person deposits with the Fairview municipal court payment for the amount of any unpaid penalty due under this section. If as a result of the hearing it is determined that the penalty was wrongly assessed, the Fairview municipal court shall direct the city to refund to the person any money deposited as payment of a fine or a penalty.
2. Appeal Procedure. The notice of appeal must be received by the city within five days of the notice of violation. Hearing on the appeal shall be conducted in Fairview municipal court within 30 days of the date of receipt of the notice of appeal under hearing procedures provided by city ordinance or code.
C. Abatement. If the violation has not been corrected pursuant to the notice of violation, or, in the event of an appeal, within 14 days of the judgment of the Fairview municipal court upholding the decision of the city’s public works director, then the public works director shall enter upon the premises where the violation occurred and is authorized to take any and all measures necessary to abate the violation and/or restore the property.
D. Injunctive Relief. The city may take any action at law or equity to enforce the provisions of this chapter, including seeking injunctive relief to restrain a person from performing activities that violate this chapter or to compel a person to perform and complete abatement and remediation of a violation.
E. Authority of Public Works Director. The public works director may exercise authority to enforce a construction permit or NPDES permit through a stop work order if necessary to prevent the occurrence or continuing occurrence of illicit discharge or illicit connection.
F. Penalties, Costs, Alternative Penalties. The city may impose all penalties for violations as provided by law, including recovering the costs of enforcement. The public works director may recommend the imposition of penalties as alternatives to the imposition of fines where, in the public works director’s opinion, such penalties are appropriate in the circumstances. Alternative penalties may include compensatory actions such as storm drain stenciling, attendance at compliance workshops, roadway, watercourse, or creek clean up, or similar activities to prevent or remedy illicit discharge of pollutants to the municipal separate storm sewer.
G. Violations Deemed Public Nuisance. In addition to the enforcement process and penalties provided in this section, any condition permitted to exist in violation of any of the provisions of this chapter is deemed a threat to public health, safety, and welfare and is determined to be a nuisance. The city may take any action provided by Fairview Municipal Code, city ordinance, or state law to enforce the provisions of this chapter.
H. Remedies Not Exclusive. The remedies listed in this chapter are not exclusive of any other remedies available at law or equity, and it is within the discretion of the city of Fairview to seek cumulative remedies. (Ord. 8-2004 §§ 1, 2)