Chapter 15.15 STORMWATER DISCHARGE QUALITY CONTROL

The purpose of this chapter is to reduce pollutants in stormwater discharges and to prohibit non-stormwater discharges to the public stormwater drainage, groundwater and surface water systems, underground injection control or waterways. [Ord. 1311 § 2, 2011.]

15.15.030 Definitions.

For the purposes of this chapter, the following words shall have the following meanings:

“Agricultural activities” means those activities over which the Oregon Department of Agriculture has enforcement authority.

“Bank” means that portion of a waterway that is exposed from the ordinary high water mark (OHWM) and extends upland.

“BMP” means best management practices.

“Construction activity” means activities that require a National Pollution Discharge Elimination System construction permit. These activities include but are not limited to clearing and grubbing, grading, excavating, and demolition.

“Director” means the director of public works or the director’s designee.

“Hazardous materials” mean any material, including any substance, waste, or combination thereof, that because of its quantity, concentration, or physical, chemical, or infectious characteristics may cause, or 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 mismanaged.

“Illicit connection” means either of the following:

1. Any drain or conveyance, whether on the surface or subsurface, that allows an illicit discharge to enter the public storm drainage and surface water system including but not limited to any conveyances that allow any non-stormwater discharge including sewage, process wastewater, and wash water to enter the public storm drainage and surface water system and any connections to the public storm drainage and surface water system from indoor drains and sinks, regardless of whether the drain or connection had been previously allowed, permitted, or approved by a government agency; or

2. Any drain or conveyance connected from a commercial or industrial land use to the public storm drainage and surface water system that has not been documented in plans, maps, or equivalent records and approved by the county.

“Illicit discharge” means any direct or indirect non-stormwater discharge to the public storm drainage and surface water system, except as exempted in MCC 15.15.070. “Illicit discharge” as used in this chapter shall have the same meaning as the term “illegal dumping” as used by the Department of Environmental Quality.

“Industrial activity” means activities which require an NPDES industrial permit.

“National Pollutant Discharge Elimination System (NPDES) stormwater discharge permit” means general, group, and individual stormwater discharge permits that regulate facilities defined in federal NPDES regulations and regulated through the Oregon Department of Environmental Quality.

“Non-stormwater discharge” means any discharge to the public storm drainage, groundwater and surface water systems that is not composed entirely of stormwater.

“Ordinary high water mark” (OHWM) means the line on the bank or shore to which the high water ordinarily rises in the average runoff year. The OHWM excludes exceptionally high water levels caused by large flood events such as the five-year or 100-year events.

“Owner” means a person who is the sole fee simple owner of the real property, all joint owners whose interests add up to a fee simple interest in the property, or the owner of an equitable interest in the property pursuant to a land sales contract.

“Person responsible” or “responsible person” means the equitable or legal owner of the subject property, a lessee, tenant or person in possession of the property, or the person or persons directly or indirectly responsible for an act.

“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, articles, 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 (including but not limited to sediments, slurries, and concrete rinsates); and noxious or offensive matter of any kind.

“Pollution” means contamination or other alteration of the physical, chemical, or biological properties of any waters of the state, including change in temperature, taste, color, turbidity, silt, or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive, or other substance into any water of the state that either by itself or in connection with any other substance present can reasonably be expected to create a public nuisance or render such waters harmful, detrimental, or injurious to public health, safety, or welfare; to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses; or to livestock, wildlife, fish, other aquatic life or the habitat thereof.

“Premises” means any building, lot, parcel of land, or portion of land whether improved or unimproved including adjacent sidewalks and parking strips.

“Public storm drainage and surface water system” means natural or manmade drainage courses for the conveyance of surface water.

“Stormwater” means stormwater runoff, snow melt runoff, and surface runoff and drainage.

“Stormwater management area” means an area designated as a stormwater management area by the Oregon Department of Environmental Quality.

“UIC” means underground injection control. A UIC structure is a subsurface distribution system for stormwater; usually an assemblage of perforated pipes, drain tiles or other mechanisms intended to distribute stormwater below the surface of the ground.

“Waters of the state” means lakes, bays, ponds, impounding reservoirs, springs, wells, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Pacific Ocean within the territorial limits of the state of Oregon, and all other bodies of surface or underground waters, natural or artificial, inland or coastal, fresh or salt, public or private (except those private waters that do not combine or effect a junction with natural surface or underground waters) that are located wholly or partially within or bordering the state or within its jurisdiction.

“Waterway” means a body of water (whether natural or manmade) that periodically or continuously contains waters of the state and has a definite bed and banks that serve to confine the water. [Ord. 1311 § 3, 2011.]

15.15.040 Applicability.

This chapter applies to all water entering the public storm drainage and surface water system generated on any developed and undeveloped lands inside a stormwater management area. [Ord. 1311 § 4, 2011.]

15.15.050 Regulation of agricultural activities prohibited.

Marion County shall not enforce the terms of this chapter against agricultural activities regulated by the Oregon Department of Agriculture. [Ord. 1311 § 5, 2011.]

15.15.060 Ultimate responsibility of property owner.

The standards set forth in this chapter are minimum standards. This chapter does not mean or imply that compliance with this chapter by any person will ensure that there will be no contamination, pollution, or unauthorized discharge of pollutants into waters of the state by a responsible person. The property owner is ultimately responsible for all conditions on or created by the owner’s property. This chapter shall not create liability on the part of Marion County, or any agent or employee of Marion County, for any damages that result from a responsible person’s or property owner’s reliance on this chapter or any administrative decision lawfully made under this chapter. [Ord. 1311 § 6, 2011.]

15.15.070 Prohibition of illicit discharges.

A. No person shall discharge or cause to be discharged into the public stormwater drainage, groundwater and surface water system, UICs, or waterways any materials, including but not limited to pollutants or waters containing any pollutants that cause or contribute to a violation of DEQ and/or other applicable water quality standards, other than stormwater. The commencement, conduct or continuance of any illicit discharge to the public storm drainage and surface water system is prohibited except as set forth in this section.

B. Discharges from the following activities will not be considered a source of pollutants to the storm drain system and to waters of the state when properly managed to ensure that no potential pollutants are present, and therefore they shall not be considered illicit discharges under the Clean Water Act, Oregon Revised Statutes, Oregon Administrative Rules or this chapter:

1. Potable water line flushing;

2. Uncontaminated pumped groundwater and other discharges from potable water sources;

3. Landscape irrigation and lawn watering;

4. Diverted stream flows; rising groundwater; groundwater infiltration to the storm drain system;

5. Uncontaminated foundation and footing drains; uncontaminated water from crawl space pumps;

6. Air conditioning condensation; uncontaminated nonindustrial roof drains;

7. Springs;

8. Individual residential car washing and/or occasional noncommercial car washing (e.g., fundraising purposes);

9. Flows from riparian habitats and wetlands;

10. Dechlorinated swimming pool, hot tub, spa or similar discharges;

11. Street wash waters;

12. Flows from fire fighting.

C. The prohibition set forth in subsection (A) 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 by the Oregon Department of Environmental Quality 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 Marion County has granted written approval for any discharge to the public storm drainage and surface water system. [Ord. 1311 § 7, 2011.]

15.15.080 Prohibition of illicit connections.

The construction, use, maintenance or continued existence of illicit connections to the public storm drainage and surface water system is prohibited. 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. [Ord. 1311 § 8, 2011.]

15.15.090 Waste disposal prohibitions.

No person shall throw, deposit, leave, maintain, keep, or permit to be thrown, deposited, left, or maintained, in or upon any public or private property, driveway, parking area, street, alley, sidewalk, component of the storm drainage and surface water system, UICs, or waters of the state, any refuse, rubbish, garbage, litter, or other discarded or abandoned objects, articles, and accumulations, so that the same may cause or contribute to pollution. Wastes deposited in proper waste receptacles for the purposes of collection are exempt from this prohibition. [Ord. 1311 § 9, 2011.]

15.15.100 Discharges in violation of industrial or construction activity NPDES stormwater discharge permit.

Any person subject to an industrial or construction activity NPDES stormwater discharge permit shall comply with all provisions of the permit. Failure to comply with all provisions shall constitute a violation of this chapter. Proof of compliance with the permit may be required in a form acceptable to the director prior to or as a condition of a subdivision map, site plan, building permit, or development or improvement plan; upon inspection of the facility; during any enforcement proceeding or action; or for any other reasonable cause. [Ord. 1311 § 10, 2011.]

15.15.110 Waterway protection.

Every person responsible for property through which a waterway passes shall maintain and stabilize that portion of the waterway that is within the responsible person’s property lines in order to protect against erosion and degradation of the waterway originating from the property. “Maintain” and “stabilize” as used in this section means keeping that portion of the waterway that is within the property lines free of trash, debris, excessive vegetation, and other obstacles that would pollute, contaminate, or retard the flow of water through the waterway. “Maintain” also includes the maintenance of existing privately owned structures within or adjacent to a waterway, so that the structures will not become a hazard to the use, function, or physical integrity of the waterway. “Erosion” as used in this section includes the removal of bank vegetation that will result in bare slopes subject to erosion. This chapter shall not be interpreted to restrict a person responsible for property from enhancing or establishing the planting of riparian buffers or to perform maintenance within those areas. [Ord. 1311 § 11, 2011.]

15.15.120 Requirement to monitor and analyze.

The director may require by written notice to the property owner that any person engaged in any activity and/or owning or operating any facility which may cause or contribute to stormwater pollution, illicit discharges, and/or non-stormwater discharges to the public stormwater drainage, groundwater and surface water systems, UICs, or waters of the state, to undertake at the owner’s expense any monitoring and analyses and furnish any reports to the director as deemed necessary to determine compliance with this chapter. [Ord. 1311 § 12, 2011.]

15.15.130 Illicit discharge procedure.

Notwithstanding any 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 which are resulting or may result in illicit discharges or pollutants discharging into the public stormwater drainage, groundwater and surface water systems, or waters of the state from the facility, the person shall take all necessary steps to ensure the discovery, containment, and cleanup of the release. Upon discovery of any illicit discharge, the responsible person shall immediately notify the director. [Ord. 1311 § 13, 2011.]

15.15.140 Authority to inspect.

When the director determines it is necessary to make an inspection to enforce any provision of this chapter, the director may enter those premises to inspect them and to inspect and copy records related to stormwater compliance. The director shall provide a written request to enter and inspect the premises by delivering the request to a responsible person or by posting the request at a conspicuous location on the premises. If a responsible person refuses entry or fails to respond to the request, the director may seek warrant or other assistance from any court of competent jurisdiction in obtaining entry. [Ord. 1311 § 14, 2011.]

15.15.150 Authority to sample, establish sampling devices, and test.

During any inspection pursuant to this chapter, the director may take any samples and perform any testing deemed necessary to aid in the pursuit of the inquiry or to record site activities. [Ord. 1311 § 15, 2011.]

15.15.160 Requirement to eliminate illicit discharges.

Notwithstanding the requirements of MCC 15.15.210, Emergency abatement, the director may require by written notice that a person responsible for an illicit discharge immediately, or by a specified date, discontinue the discharge and, if necessary, take measures to eliminate the source of the discharge to prevent the occurrence of future illicit discharges. Failure to comply with the requirements of the notice within the time stated shall constitute a violation of this chapter. [Ord. 1311 § 16, 2011.]

15.15.170 Requirement to eliminate or secure approval for illicit connections.

A. The director may require by written notice that the property owner with an illicit connection to the public stormwater drainage, groundwater and surface water systems comply with the requirements of this chapter to either eliminate the connection or secure approval for the connection by a specified date, regardless of whether or not the connection or discharges to it had been established or approved prior to the effective date of the ordinance codified in this chapter.

B. If, subsequent to eliminating a connection found to be in violation of this chapter, the property owner can demonstrate that an illicit discharge will no longer occur, the owner may request Marion County’s approval to reconnect. The reconnection or reinstallation of the connection shall be at the property owner’s expense. [Ord. 1311 § 17, 2011.]

15.15.180 Requirement to remediate.

Whenever the director finds that a discharge of pollutants is taking place or has occurred that will result in or has resulted in pollution of stormwater, the stormwater drainage, groundwater and surface water systems, or waters of the state, the director may require by written notice to the property owner that the pollution be remediated and the affected property restored within a specified time. Failure to comply with the requirements of the notice within the time stated shall constitute a violation of this chapter. [Ord. 1311 § 18, 2011.]

15.15.190 Notice of violation.

A. Whenever the director finds that a person has violated a provision of this chapter, the director may order compliance by written notice of violation to the property owner. The notice may require without limitation:

1. The performance of monitoring, analyses, and reporting;

2. The elimination of illicit connections or discharges;

3. The cessation of all violating discharges, practices, or operations;

4. The abatement or remediation of stormwater pollution or contamination hazards and the restoration of any affected property; and

5. The implementation of source control or treatment BMPs supplied by the director.

B. The notice shall:

1. Describe the property by street address or tax lot number;

2. Describe the nature of the violation;

3. State by a date certain when the property owner must correct the violation in a manner acceptable to the director;

4. Inform the owner that if the violation is not corrected the county shall either complete the repairs, pursue abatement or cite the owner, as appropriate;

5. Inform the property owner that if the county performs the necessary abatement or repairs, the county will bill the property owner for the costs;

6. Include an estimate of the costs anticipated for the county to cause abatement or repair for the correction of the violation;

7. Inform the property owner that failure to pay the county for its costs to correct the violation will result in filing of a lien on the property;

8. Inform the property owner of the rights spelled out in MCC 15.15.230 and 15.15.240, including the right to a hearing, and individuals the property owner may contact for additional information.

C. The notice shall be served on the property owner by personal service consistent with ORCP 7D(2)(a). [Ord. 1311 § 19, 2011.]

15.15.200 Abatement and/or repair of violation.

If the property owner has not corrected the violation as directed within the time allowed in the notice given pursuant to MCC 15.15.190, the director may take all measures necessary to abate the violation and/or restore the property. The director or persons authorized by the director may enter upon property to abate and/or restore the property upon obtaining consent of the property owner or through a court issued warrant. [Ord. 1311 § 20, 2011.]

15.15.210 Emergency abatement.

The director is authorized to require immediate abatement of any violation of this chapter that constitutes an immediate threat to the health, safety or well-being of the public. The director or persons authorized by the director may enter upon property to abate and/or restore the property upon obtaining consent of the property owner or through a court issued warrant. [Ord. 1311 § 21, 2011.]

15.15.220 Collection of costs.

A. The county may collect all costs associated with the repair or abatement of a violation, or both, from the property owner.

B. The county shall keep detailed records of all costs associated with the abatement or repair due to a violation of this chapter.

C. Upon completion of the abatement or repair of the violation by the county, a notice of final costs shall be served on the owner by personal service consistent with ORCP 7D(2)(a). Payment must be made within 30 days from the date of the notice of final costs. The notice must contain the following:

1. The total cost of repair or abatement, or both;

2. A statement that the total cost may be filed as a lien with the county clerk unless paid within 60 days from the date of the hearings officer’s order described in MCC 15.15.250; and

3. A statement that the owner may contest the charges at a hearing that will be scheduled on the matter pursuant to MCC 15.15.240. [Ord. 1311 § 22, 2011.]

15.15.230 Hearing request.

A property owner who is served with a notice of violation as described in MCC 15.15.190 may request a hearing before the Marion County hearings officer. Hearing requests must be filed in writing with the Marion County hearings officer within five business days from the date the notice was served. [Ord. 1311 § 23, 2011.]

15.15.240 Hearing on notice of violation.

A. Upon receiving a written request for a hearing pursuant to MCC 15.15.230, the hearings officer shall set a time and place for a hearing that shall be no more than seven days from the date of filing of the hearing request, or as soon as practicable. The hearings officer shall notify the person requesting a hearing of the time and date of the hearing. The director shall appear and present evidence pertinent to the alleged violation and its abatement or repair. The owner of the property may also present evidence before the hearings officer pertinent to the alleged violation and its abatement or repair. The county shall have the burden of proving by a preponderance of the evidence that a violation exists and must be abated or repaired.

B. Failure of the person requesting hearing to appear shall constitute a waiver of the right to present evidence at the hearing or thereafter.

C. After the hearing, the hearings officer shall issue an order containing findings as to whether the alleged violation does in fact exist, the extent to which the violation exists and (if abatement or repair is required) shall set a date for abatement or repair to be accomplished by the owner. The hearings officer’s order shall be issued within 10 days of the date of the hearing or as soon as practicable.

D. The decision of the hearings officer is final. Appeal shall be only by writ of review under ORS Chapter 34. [Ord. 1311 § 24, 2011.]

15.15.250 Hearing on final costs.

A. At the time the notice of final costs is sent to the property owner as described in MCC 15.15.220, a copy shall also be sent to the hearings officer. The hearings officer shall set a time and place for a hearing that shall be no more than seven days from the date of receipt of the notice of final costs by the hearings officer, or as soon as practicable. The hearings officer shall notify the property owner and the director of the time and date of the hearing. The only issue at the hearing shall be the reasonableness of the cost of abatement or repairs.

B. Failure of the property owner to appear shall constitute a waiver of the right to present evidence at the hearing or thereafter.

C. After the hearing, the hearings officer shall issue an order within 10 days of the date of the hearing, or as soon as practicable, detailing the amount of the final costs that the owner must pay, if any. The hearings officer’s order shall also indicate that the final costs must be paid within 30 days and if they are not paid within 60 days, the county may record a lien in the county clerk lien record.

D. The hearings officer’s order of determination shall be final and binding. Appeal shall be only by writ of review under ORS Chapter 34. [Ord. 1311 § 25, 2011.]

15.15.260 Lien record filing.

If final costs are not paid within 60 days of the hearings officer’s order requiring payment of final costs, the enforcement officer shall record a lien with the Marion County clerk or any other county clerk of this state. The total amount of final costs shall be recorded as a lien in the county clerk lien record. The lien provided for herein shall be foreclosed in the manner prescribed by state law for the enforcement of liens. Nothing in this section precludes the county from taking other action to collect the final costs. [Ord. 1311 § 26, 2011.]

15.15.270 Penalties.

A. Any person who is cited for a violation of this chapter shall be subject to a fine of not more than $500.00 for a noncontinuing violation and a fine of not more than $1,000 for a continuing violation.

B. Each day that this chapter is violated shall constitute a separate violation. [Ord. 1311 § 27, 2011.]

15.15.280 Enforcement.

The provisions of this chapter are enforceable pursuant to Chapter 1.25 MCC. [Ord. 1311 § 28, 2011.]

15.15.290 Other remedies.

The provisions of this chapter are in addition to and not in lieu of any other procedures and remedies provided by law including equitable relief and damages. [Ord. 1311 § 29, 2011.]