Chapter 24.10
ILLICIT DISCHARGES AND ENFORCEMENT
Sections:
24.10.020 Applicability and definitions.
24.10.050 Prohibition of illegal or illicit discharges.
24.10.060 Prohibition of illicit connections.
24.10.070 Suspension of MS4 access.
24.10.080 Industrial or construction activity discharges – Monitoring.
24.10.100 Watercourse protection.
24.10.110 Notification of spills.
24.10.120 Enforcement – Notice of violation.
24.10.140 Request for reconsideration.
24.10.010 Purpose and intent.
The purpose of this chapter is to provide for the health, safety and general welfare of the citizens of Pacific through the regulation of nonstormwater discharges to the storm drainage system to the maximum extent practicable as required by federal and state law. Any duties established in this chapter or the codes adopted herein are duties owed to the public as a whole, not to any individual person or class of persons. This code establishes methods for controlling the introduction of pollutants into the municipal separate storm system (MS4) in order to comply with the requirements of the National Pollutant Discharge Elimination System (NPDES) permit process. The objectives of this section are:
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 section. (Ord. 1949 § 17, 2017).
24.10.020 Applicability and definitions.
This chapter shall apply to all water entering the storm drainage system generated on any developed and undeveloped lands unless explicitly exempted by an authorized enforcement agency. The definitions set forth in PMC 24.04.040 shall apply to this chapter. (Ord. 1949 § 17, 2017).
24.10.030 Administration.
The public works director/manager shall have the responsibility for administering, implementing and enforcing the provisions of this chapter. Any powers granted or duties imposed upon the authorized enforcement agency may be delegated in writing by the director of the authorized enforcement agency to persons or entities acting in the beneficial interest of or in the employ of the agency. (Ord. 1949 § 17, 2017).
24.10.040 Minimum standards.
The standards set forth herein and promulgated pursuant to this chapter are minimum standards. This chapter does not intend nor imply that compliance by any person will ensure that there will be no contamination, pollution, nor unauthorized discharge of pollutants. (Ord. 1949 § 17, 2017).
24.10.050 Prohibition of illegal or illicit discharges.
A. 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. The commencement, conduct or continuance of any illegal or illicit discharge to the storm drain system is prohibited, except as described as follows:
1. The following discharges are exempt from discharge prohibitions established by this section: 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 wetland 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 nonstormwater 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 other order and other applicable laws and regulations; and provided, that written approval has been granted for any discharge to the storm drain system.
5. With written concurrency of the Department of Ecology, the city of Pacific may exempt in writing other nonstormwater discharges which are not a source of pollutants to the storm drain system nor waters of the U.S. (Ord. 1949 § 17, 2017).
24.10.060 Prohibition of illicit connections.
A. The construction, use, maintenance or continued existence of illicit connections to the storm drain system is prohibited.
B. 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.
C. A person is considered to be in violation of this section if the person connects a line conveying sewage to the MS4 or allows such a connection to continue. (Ord. 1949 § 17, 2017).
24.10.070 Suspension of MS4 access.
A. Suspension Due to Illicit Discharges in Emergency Situations. The public works director/manager may, without prior notice, suspend MS4 discharge access to a person 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 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 deemed necessary to prevent or minimize damage to the MS4 or waters of the United States, or to minimize danger to persons.
B. Suspension Due to the Detection of Illicit Discharge. Any person discharging to the MS4 in violation of this section 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 a reconsideration and a hearing under the procedures in this chapter.
C. A person violates this section if the person reinstates MS4 access to premises terminated pursuant to this section, without the prior approval of the authorized enforcement agency. (Ord. 1949 § 17, 2017).
24.10.080 Industrial or construction activity discharges – Monitoring.
Any person subject to an industrial or construction activity NPDES discharge permit shall comply with all provisions of such permit. Proof of compliance with such permit may be required in a form acceptable to the public works director/manager prior to the allowing of discharges to the MS4.
A. Applicability. This section applies to all facilities that have stormwater discharges associated with industrial activity, including construction activity.
B. Access to Facilities.
1. The public works director/manager shall be permitted to enter and inspect facilities subject to regulation under this section as often as may be necessary to determine compliance with this section. If a discharger has security measures in force 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 authorized enforcement agency.
2. Facility operators shall allow the public works director/manager 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 a NPDES permit to discharge stormwater, and the performance of any additional duties as defined by state and federal law.
3. The public works director/manager shall have the right to set up on any permitted facility such devices as are necessary in the opinion of the authorized enforcement agency to conduct monitoring and/or sampling of the facility’s stormwater discharge.
4. The public works director 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 devices used to measure stormwater flow and quality shall be calibrated to ensure their accuracy.
5. 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 public works director/manager and shall not be replaced. The costs of clearing such access shall be borne by the operator.
6. Unreasonable delays in allowing the public works director/manager access to a permitted facility is a violation of a stormwater discharge permit and of this chapter. A person who is the operator of a facility with an NPDES permit to discharge stormwater 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 public works director/manager has been refused access to any part of the premises from which stormwater is discharged, and he/she is able to demonstrate probable cause to believe that there may be a violation of this section, 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 section 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. (Ord. 1949 § 17, 2017).
24.10.090 Requirements to prevent, control and reduce stormwater pollutants by the use of best management practices.
The owner or operator of a commercial or industrial establishment shall provide, at their own expense, 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. Further, any person responsible for a property or premises, which is, or may be, the source of an illicit discharge, may be required to implement, at said person’s expense, 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. These BMPs shall be part of a stormwater pollution prevention plan (SWPPP) as necessary for compliance with requirements of the NPDES permit. (Ord. 1949 § 17, 2017).
24.10.100 Watercourse protection.
Every person owning property or such person’s 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. 1949 § 17, 2017).
24.10.110 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 which are resulting or may result in illegal discharges or pollutants discharging into stormwater, the storm drain system, or waters of the U.S., such 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 nonhazardous 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 public works director 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 reoccurrence. Such records shall be retained for at least three years. (Ord. 1949 § 17, 2017).
24.10.120 Enforcement – Notice of violation.
A. Investigation. The public works director/manager is authorized to investigate any situation in which it appears that a person has violated a prohibition or failed to meet a requirement of this chapter or Chapter 24.04 PMC.
B. Notice of Violation. If, after investigation, the director determines that a violation or failure to meet a requirement of this chapter or Chapter 24.04 PMC has occurred, the director may serve a notice of violation upon the owner or other person responsible for the condition. The notice of violation shall contain the following information:
1. The name and address of the person to whom it is directed;
2. The location and specific description of the violation;
3. A statement that the notice is effective immediately upon posting at the site and/or receipt by the person to whom it is directed;
4. The notice of violation may include or reference a stop work order requiring that the violation immediately cease, or that the potential violation be avoided;
5. The notice of violation may include or reference a stop work order requiring that the person cease all work on the premises until correction and/or remediation of the violation as specified in the order;
6. A specific identification of each standard, code provision or requirement violated;
7. A specific description of the actions required to correct, remedy or avoid the violation or to comply with the standards, code provision or requirements, including but not limited to:
a. The performance of monitoring, analyses and reporting;
b. The elimination of illicit connections or discharges;
c. That violating discharges, practices or operations shall cease and desist;
d. The abatement or remediation of stormwater pollution or contamination hazards and the restoration of any affected property;
e. The implementation of source control or treatment BMPs;
8. A reasonable time for compliance. 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 may be done by a designated government agency or a contractor and the expense thereof may be charged to the violator;
9. A statement that the violation may result in criminal prosecution and the imposition of penalties;
10. A statement that failure to comply with the notice of violation may result in further enforcement actions, including issuance of additional notices of violation, fines and criminal penalties; and
11. A statement that the notice of violation represents a determination that a violation has been committed by the person named in the notice of violation, and that the determination shall be final unless a request for reconsideration is filed with the director/manager as provided in PMC 24.10.140.
C. Each Day a Separate Violation. Each day a person or entity fails to comply with the code provision cited in the notice of violation may be considered a separate violation for which a citation may be issued.
D. Service. The notice of violation shall be served on the owner or other person responsible for the condition of the property in the manner set forth in RCW 4.28.080 for service of a summons, or personally, as set forth in RCW 4.28.080(15). In lieu of service under RCW 4.28.080(15), where the person cannot with reasonable diligence be served as described, the notice of violation may be served as provided in RCW 4.28.080(16).
E. Posting. A copy of the notice of violation shall be posted at a conspicuous place on the property, unless posting the notice is not physically possible.
F. Other Actions May Be Taken. Nothing in this chapter shall be deemed to limit or preclude any action or proceeding in law or equity.
G. Recording. A copy of the notice of violation may be filed with the county auditor when the responsible party fails to correct the violation and no request for reconsideration is filed, or the director requests that the city attorney take appropriate enforcement action. The director may choose not to file a copy of the notice or order if the notice or order is directed only to a responsible person other than the owner of the property.
H. Amendment. A notice or order may be amended at any time in order to:
1. Correct clerical errors; or
2. Cite additional authority for a stated violation. (Ord. 2058 § 16, 2022; Ord. 1949 § 17, 2017).
24.10.130 Time to comply.
When calculating a reasonable time for compliance in the notice of violation, the director shall consider the following criteria:
A. The type and degree of violation cited in the notice;
B. The stated intent, if any, of a responsible party to take steps to comply;
C. The procedural requirements for obtaining a permit to carry out corrective action;
D. The complexity of the corrective action, including seasonal considerations, construction requirements and the legal prerogatives of landlords and tenants; and
E. Any other circumstances beyond the control of the responsible party. (Ord. 1949 § 17, 2017).
24.10.140 Request for reconsideration.
A. There is no administrative appeal of a notice of violation issued pursuant to this chapter.
B. Only a person or entity receiving a notice of violation has standing to request reconsideration of the notice of violation from the director. Unless a request for reconsideration of a notice of violation is filed with the director in accordance with this section, the notice of violation shall become the final order of the director. The final order, including the collection of penalties, may be enforced by the city attorney.
C. The request for reconsideration must be filed with the director within 15 calendar days of service of the notice of violation. For purposes of computing the time for filing an appeal, the day the decision is issued shall not be counted. If the last day of the deadline for filing the appeal is a Saturday, Sunday or holiday designated by RCW 1.16.050 or city ordinance, then the appeal must be filed on the next business day. Appeals shall be delivered to the director by mail, by personal delivery or by fax before 5:00 p.m. on the last business day of the appeal period. Appeals received by mail after 5:00 p.m. on the last day of the appeal period will not be accepted, no matter when such appeals were mailed or postmarked.
D. Requests for reconsideration shall be in writing, be accompanied by the required reconsideration fee, and contain the following information:
1. Requestor’s name, address and phone number;
2. A statement describing requestor’s standing to request reconsideration;
3. Requestor’s statement of grounds for reconsideration and the facts upon which the request is based with specific references to the facts in the record;
4. The specific relief sought;
5. A statement that the requestor has read the request for reconsideration and believes the contents to be true, followed by the requestor’s signature.
E. The timely filing of a request for reconsideration shall stay any enforcement action based on a notice of violation until the director’s decision issues, unless the director finds that the violation causes an immediate threat to public health or safety.
F. The director shall make a decision on the request for reconsideration without a hearing. In his/her written decision, the director may:
1. Sustain the notice of violation;
2. Withdraw the notice of violation;
3. Continue the review to a date certain for receipt of additional information;
4. Modify the notice of violation, which may include an extension of the compliance date.
The director’s written decision shall issue within 10 calendar days of the date of the receipt of the request for reconsideration. The director shall cause his/her decision to be mailed by regular first class mail to the person(s) named on the notice of violation and/or the requestor. A copy of the final decision may be recorded against the property in the county auditor’s office.
G. The decision of the director on reconsideration shall be final, and no administrative appeal may be filed. The director may call upon the city prosecutor to enforce the notice of violation and decision on reconsideration. (Ord. 1949 § 17, 2017).
24.10.150 Criminal penalties.
Every person who shall violate or fail to comply with any of the provisions of this chapter shall be guilty of a misdemeanor and shall be subject to criminal prosecution and shall be fined in a sum not exceeding $5,000 or be imprisoned for a term not exceeding one year or be both fined and imprisoned. Each day of noncompliance shall constitute a separate offense. (Ord. 1949 § 17, 2017).
24.10.160 Additional relief.
A. The director may seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of this chapter, when criminal penalties are inadequate to effect compliance.
B. In addition to the enforcement process and penalties in this chapter, any condition caused or permitted to exist in violation of any of the provisions of this title is a threat to the public health, safety and welfare, and is declared and deemed to be a nuisance. The city may file an action in superior court under Chapter 9.66 RCW, and in addition to any fine or other punishment that the court may impose for such violation, the court may order such nuisance abated. (Ord. 1949 § 17, 2017).