Chapter 4.10
STORMWATER ILLICIT DISCHARGE DETECTION AND ELIMINATION
Sections:
4.10.040 Responsibility for administration.
4.10.050 Discharge prohibitions.
4.10.060 Compliance monitoring.
4.10.090 Violations, enforcement, and penalties.
4.10.100 Cost of abatement of the violation.
4.10.110 Remedies not exclusive.
4.10.120 Compatibility with other regulations.
4.10.130 Ultimate responsibility.
4.10.010 Purpose.
The purpose of this chapter is to provide for the health, safety, and general welfare of the citizens of the city of Wenatchee through the regulation of nonstormwater discharges to the storm drainage system to the maximum extent practicable as required by federal and state law. This chapter establishes methods for controlling the introduction of pollutants into the municipal separate storm sewer system (MS4) in order to comply with requirements of the National Pollutant Discharge Elimination System (NPDES) permit process. The objectives of this chapter are:
(1) To regulate the contribution of pollutants to the MS4.
(2) To prohibit illicit connections and discharges to the MS4.
(3) To establish legal authority to carry out all inspection, surveillance, monitoring, and enforcement procedures necessary to ensure compliance with this chapter. (Ord. 2018-38 § 1; Ord. 2009-12 § 1)
4.10.020 Definitions.
For the purposes of this chapter, the following shall mean:
(1) “Best management practices (BMPs)” shall mean schedules of activities, prohibitions of practices, general good housekeeping practices, maintenance procedures, and structural and/or managerial practices that, when used singly or in combination, prevent or reduce the release of pollutants directly or indirectly to stormwater, receiving waters, or stormwater conveyance systems.
(2) “City” shall mean the city of Wenatchee, Washington, a municipal corporation of the state of Washington, acting by and through its city council, unless such authority shall be delegated to other persons.
(3) “Clean Water Act” shall mean the federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.), and any subsequent amendments thereto.
(4) “Director” shall mean the city of Wenatchee public works director who is charged with certain duties and responsibilities by this chapter, or any other person the director may appoint.
(5) “Hazardous materials” shall mean 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.
(6) “Illicit discharge” shall mean any direct or indirect nonstormwater discharge to the storm drain system, except as exempted in WCC 4.10.050.
(7) “Illicit connection” shall mean either of the following:
(a) Any drain or conveyance, whether on the surface or subsurface, that allows an illegal discharge to enter the storm drain system including but not limited to any conveyances that allow any nonstormwater discharge including sewage, process wastewater, and wash water to enter the storm drain system and any connections to the storm drain system from indoor drains and sinks, regardless of whether said drain or connection had been previously allowed, permitted, or approved by the city; or
(b) Any drain or conveyance connected from a commercial or industrial land use to the storm drain system that has not been documented in plans, maps, or equivalent records and approved by the city.
(8) “Municipal separate storm sewer system (MS4)” shall mean the system of conveyances (including sidewalks, roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, manmade channels, or storm drains) owned and operated by the city of Wenatchee and designed or used for collecting or conveying stormwater, and that is not used for collecting or conveying sewage.
(9) “National Pollutant Discharge Elimination System (NPDES) Permit” shall mean the national permit issued by EPA (or by a state under authority delegated pursuant to 33 U.S.C. Section 1342(b)) that authorizes the discharge of pollutants to waters of the United States, whether the permit is applicable on an individual, group, or general area-wide basis.
(10) “Nonstormwater discharge” shall mean any discharge to the storm drain system that is not composed entirely of stormwater.
(11) “Person” shall mean any individual, association, organization, partnership, firm, corporation or other entity public or private and acting as either the owner or as the owner’s agent.
(12) “Pollutant” shall mean anything which 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, so that same 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.
(13) “Premises” shall mean any building, lot, parcel of land, or portion of land whether improved or unimproved including adjacent sidewalks and parking strips.
(14) “Storm drainage system” shall mean publicly owned facilities by which stormwater is collected and/or conveyed, including but not limited to any roads with drainage systems, gutters, curbs, inlets, piped storm drains, pumping facilities, retention and detention basins, natural and human made or altered drainage channels, reservoirs, and other drainage structures.
(15) “Stormwater” shall mean runoff during and following precipitation and snowmelt events, including surface runoff, drainage and interflow. (Ord. 2018-38 § 1; Ord. 2009-29 § 1; Ord. 2009-12 § 1)
4.10.030 Applicability.
This chapter shall apply to all water entering the storm drain system generated on any developed and undeveloped lands unless explicitly exempted by the city of Wenatchee. (Ord. 2018-38 § 1; Ord. 2009-12 § 1)
4.10.040 Responsibility for administration.
The city of Wenatchee shall administer, implement, and enforce the provisions of this chapter. Any powers granted or duties imposed upon the city may be delegated by the public works director to persons or entities acting in the beneficial interest of or in the employ of the agency. (Ord. 2018-38 § 1; Ord. 2009-12 § 1)
4.10.050 Discharge prohibitions.
(1) Prohibition of Illegal Discharges. No person shall throw, drain, or otherwise discharge, cause, or allow others under its control to throw, drain, or otherwise discharge into the MS4 any pollutants or waters containing any pollutants, other than stormwater. The commencement, conduct or continuance of any illegal discharge to the storm drain system is prohibited except as described as follows:
(a) The following discharges are exempt from discharge prohibitions established by this chapter:
(i) Diverted stream flows;
(ii) Rising ground waters;
(iii) Uncontaminated ground water infiltration (as defined at 40 C.F.R. 35.2005(20));
(iv) Uncontaminated pumped ground water;
(v) Foundation drains;
(vi) Air conditioning condensation;
(vii) Irrigation water from agricultural sources that is commingled with urban stormwater;
(viii) Springs;
(ix) Uncontaminated water from crawl space pumps;
(x) Footing drains;
(xi) Flows from riparian habitats and wetlands; and
(xii) Emergency firefighting activities.
(b) The prohibition shall not apply to any nonstormwater discharge permitted under an NPDES permit issued to the discharger and administered under the authority of the Washington State Department of Ecology; provided, that the discharger is in full compliance with all requirements of the permit and other applicable laws and regulations; and provided, that written approval has been granted for any discharge to the storm drain system by the city.
(c) The following nonstormwater discharges are prohibited unless the stated conditions are met:
(i) Discharges from potable water sources, including water line flushing, hyperchlorinated water line flushing, fire hydrant system flushing, and pipeline hydrostatic test water. Planned discharges shall be dechlorinated to a concentration of 0.1 ppm or less, pH-adjusted if necessary, and volumetrically and velocity controlled to prevent resuspension of sediments in the MS4;
(ii) Discharges from lawn watering and other irrigation runoff shall be kept to a minimum and shall not cause damage to public streets or sidewalks;
(iii) Swimming pool, hot tub and spa discharges shall be dechlorinated to a concentration of 0.1 ppm or less, pH-adjusted and reoxygenated if necessary, and volumetrically and velocity controlled to prevent resuspension of sediments in the MS4. Discharges shall also be thermally controlled to prevent an increase in temperature of the receiving water. Swimming pool cleaning wastewater and filter backwash are prohibited from discharge to the MS4;
(iv) Street and sidewalk wash water, water used to control dust, and routine external building wash down shall not contain soaps or detergents and shall be kept to a minimum. Practices shall be implemented prior to washing to reduce pollutants from entering the MS4 including but not limited to sweeping, picking up litter and controlling velocity of discharge;
(v) Other nonstormwater discharges shall be in compliance with the requirements of a stormwater pollution prevention plan reviewed by the city which addresses control of such discharges.
(d) Nonstormwater discharges listed above shall be prohibited if identified as a significant source of pollutants to waters of the state.
(2) 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 chapter if the person connects a line conveying sewage to the MS4, or allows such a connection to continue.
(d) Improper connections in violation of this chapter must be disconnected and redirected, if necessary, to an approved on-site wastewater management system or the sanitary sewer system upon approval of the city.
(e) Any drain or conveyance that has not been documented in plans, maps or equivalent, and which may be connected to the storm sewer system, shall be located by the owner or occupant of that property upon receipt of written notice of violation from the city requiring that such locating be completed. Such notice will specify a reasonable time period within which the location of the drain or conveyance is to be determined, that the drain or conveyance be identified as storm sewer, sanitary sewer or other, and that the outfall location or point of connection to the storm sewer system, sanitary sewer system or other discharge point be identified. Results of these investigations are to be documented and provided to the city. (Ord. 2018-38 § 1; Ord. 2009-12 § 1)
4.10.060 Compliance monitoring.
(1) Right of Entry – Inspection and Sampling. The director shall be permitted to enter and inspect premises subject to regulation under this chapter as often as may be necessary to determine compliance with this chapter.
(a) The director shall be allowed ready access to all parts of the premises for the purposes of inspection, sampling, examination and copying of records that must be kept under the conditions of an NPDES permit to discharge stormwater, and the performance of any additional duties as defined by state and federal law.
(b) The director shall have the right to set up on any premises such devices as are necessary to conduct monitoring and/or sampling of discharges from the site.
(c) The director has the right to require the owner or operator to install monitoring equipment as necessary. The sampling and monitoring equipment shall be maintained at all times in a safe and proper operating condition by the owner or operator. All devices used to measure flow and quality shall be calibrated to ensure accuracy.
(d) Any temporary or permanent obstruction to safe and easy access to the premises shall be promptly removed by the owner or operator at the written or oral request of the city and shall not be replaced. The costs of clearing such access shall be borne by the owner of the premises.
(2) Search Warrants. If the director has been refused access to any part of the premises from which a discharge has occurred or is likely to occur, and the director is able to demonstrate probable cause to believe that there may be a violation of this chapter, or that there is a need to inspect and/or sample as part of a routine inspection and sampling program designed to verify compliance with this chapter or any order issued hereunder, or to protect the overall public health, safety, and welfare of the community, then the city may seek issuance of a search warrant from any court of competent jurisdiction.
(3) The city may require any person subject to an industrial or construction activity NPDES stormwater discharge permit to report information for the purposes related to this chapter. Required information shall include but is not limited to exceeding discharge benchmarks or violations of the industrial or construction permit if discharges enter the city’s MS4. (Ord. 2018-38 § 1; Ord. 2009-12 § 1)
4.10.070 Requirement to prevent, control, and reduce stormwater pollutants by the use of best management practices.
The owner or operator of such activity, operation, or facility which may cause or contribute to pollution or contamination of stormwater or the storm drainage system shall provide, at his or her 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 structural and nonstructural BMPs. Further, any person responsible for a property or premises that 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 MS4. Compliance with all terms and conditions of a valid NPDES permit authorizing the discharge of stormwater, to the extent practicable, shall be deemed compliance with the provisions of this section. (Ord. 2018-38 § 1; Ord. 2009-12 § 1)
4.10.080 Spills.
Notwithstanding other requirements of law, as soon as any person responsible 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, said person shall take all necessary steps to ensure the discovery, containment, and cleanup of such release. In the event of such a release of hazardous materials, said person shall immediately notify emergency response agencies of the occurrence. In the event of a release of nonhazardous materials, said person shall notify the city in person or by phone, e-mail or facsimile. (Ord. 2018-38 § 1; Ord. 2009-12 § 1)
4.10.090 Violations, enforcement, and penalties.
(1) Violations. It shall be unlawful for any person to violate any provision or fail to comply with any of the requirements of this chapter. Any person who has violated or continues to violate the provisions of this chapter may be subject to the enforcement actions outlined in this section or may be restrained by injunction or otherwise abated in a manner provided by law. In the event the violation constitutes an immediate danger to public health or public safety, the city is authorized to enter upon the subject private property, without giving prior notice, to take any and all measures necessary to abate the violation and/or restore the property. The city is authorized to seek costs of the abatement in accordance with WCC 4.10.100.
(2) Notice of Noncompliance. Whenever the city finds that a person has violated or is continuing to violate a requirement of this chapter, the city may issue a notice of noncompliance. The notice of noncompliance will list the responsible person, the location of the violation, conditions of the violation, and previous violations. Nothing in this section shall limit the authority of the city to action including emergency actions or any other enforcement action, without first a notice of noncompliance.
(3) Notice of Violation. Whenever the city finds that a person has violated or is continuing to violate a requirement of this chapter, the city may issue a notice of violation. Within 10 days of receipt of such notice of violation, the person shall submit to the director an explanation of the violation and a plan to satisfactorily correct and prevent the reoccurrence of such violation(s). The plan shall include specific actions the person will take and the completion dates of each. Submission of this plan in no way relieves the person of liability for any violations occurring before or after the receipt of the notice of violation. Nothing in this section shall limit the authority of the city to take any action, including emergency actions or any other enforcement action without first issuing a notice of violation.
(4) Compliance Order. Whenever the city finds that a person has violated or is continuing to violate a requirement of this chapter, the city may issue a compliance order. The order shall direct what action must be taken to restore compliance with this chapter and the timeline for completing such remedial tasks. Compliance orders may also contain such other requirements as might be reasonably necessary and appropriate to address the violation or noncompliance. A compliance order may not extend the deadline for compliance beyond any applicable state or federal deadlines, nor does a compliance order release the user from liability from any past, present, or continuing violation(s). Issuance of a compliance order shall not be a prerequisite to taking any other action. Failure to comply with any terms or requirements of a compliance order shall be an additional and independent basis for other enforcement action authorized under this chapter and deemed appropriate by the director.
(5) Compensatory Action. In lieu of enforcement proceedings, penalties, and remedies authorized by this chapter, the city may impose alternative compensatory actions, such as storm drain stenciling, attendance at compliance workshops, cleanup, or other alternative actions deemed appropriate by the city.
(6) Suspension of MS4 Access.
(a) Emergency Cease and Desist Orders. When the city finds that any person has violated, or continues to violate, any provision of this chapter, or any order issued hereunder, or that the person’s past violations are likely to recur, and that the person’s violation(s) has (have) caused or contributed to an actual or threatened discharge to the MS4 or waters of the United States which reasonably appears to present an imminent or substantial endangerment to the health or welfare of persons or to the environment, the city may issue an order to the violator directing it immediately to cease and desist all such violations and directing the violator to:
(i) Immediately comply with all chapter requirements; and
(ii) Take such appropriate preventive action as may be needed to properly address a continuing or threatened violation, including immediately halting operations and/or terminating the discharge. Any person notified of an emergency order directed to it under this subsection shall immediately comply and stop or eliminate its endangering discharge. In the event of a discharger’s failure to immediately comply voluntarily with the emergency order, the city may take such steps as deemed necessary to prevent or minimize harm to the MS4 or waters of the United States, and/or endangerment to persons or to the environment, including immediate termination of a facility’s water supply, sewer connection, or other municipal utility services. Issuance of an emergency cease and desist order shall not be a bar against, or a prerequisite for, taking any other action against the violator.
(b) Suspension Due to Illicit Discharges in Emergency Situations. The city 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 city 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.
(7) Suspension Due to the Detection of Illicit Discharge. Any person discharging to the MS4 in violation of this chapter may have their MS4 access terminated if such termination would abate or reduce an illicit discharge. A person commits an offense if the person reinstates MS4 access to premises terminated pursuant to this section, without the prior approval of the city.
(8) Criminal Prosecution. Any person that has violated or continues to violate this chapter two or more times shall be liable to criminal prosecution to the fullest extent of the law, and shall be guilty of a misdemeanor punishable by a fine of not more than $1,000 per violation per day and/or imprisonment for a period of time not to exceed 90 days per violation per day. Each act of violation and each day upon which any violation shall occur shall constitute a separate offense.
(9) Administrative Hearing. A person shall be afforded the opportunity to an administrative hearing to contest the director’s determination to suspend services, impose penalties, recover costs, or establish compliance schedules. Any hearing pursuant to this section must be requested by the person in writing within 15 days after receiving the notices of the city’s determination. The person’s written request for a hearing shall be filed with the director. Failure to submit a timely notice shall be deemed a failure to exhaust administrative remedies and shall preclude any further review. The city will conduct the hearing within 20 days of the receipt of the request. The administrative hearing will be held before the director. Formal rules of evidence will not apply but the user and the city shall have the right to present witnesses and documentary evidence. The city director will issue a written decision within 10 days of the conclusion of the hearing. Except as otherwise provided, all decisions by the director shall be final and conclusive on all parties unless appealed to the hearing examiner under subsection (10) of this section. The director’s decision, action, or determination shall remain in effect during such period of appeal.
(10) Appeal to the Hearing Examiner. Any decision of the director rendered pursuant to subsection (9) of this section may be reviewed by open record appeal to the hearing examiner. The customer must file written notice of appeal with the city clerk within 10 days following notification of such decision or action. Such notice of appeal shall set forth in reasonable detail the action or decision appealed and the customer’s grounds for reversal or modification thereof. Failure to submit a timely notice shall be deemed to be a failure to exhaust administrative remedies and shall preclude any further review. Following receipt of such notice, the city clerk will schedule a date for a public hearing with the hearing examiner at which time the hearing examiner shall consider the appeal. The date of the public hearing should be no later than 20 days following the date the clerk received notice of the appeal. The clerk will mail written notice to all parties of record to apprise them of the hearing date. The hearing shall be an open record hearing at which the customer and the city may present witness testimony and documentary evidence. At the conclusion of the public hearing the hearing examiner may adopt, amend and adopt, reverse, amend and reverse the findings, conclusions, and decision of the director.
(11) Judicial Review. The decision of the hearing examiner on appeal of the decision of the director shall be final and conclusive unless, within 20 days from the date of the final action, the user files a petition for review with the superior court of Chelan County in the manner prescribed by law. Judicial review shall be a closed record appeal based upon the record created before the hearing examiner. (Ord. 2018-38 § 1; Ord. 2014-02 § 2; Ord. 2009-12 § 1)
4.10.100 Cost of abatement of the violation.
The owner of the property or person responsible for the violation will be notified of the cost of abatement, including administrative costs. Payment in full shall be due within 30 days and on the thirty-first day interest may be applied at a rate of eight percent per annum. After 90 days, if payment in full has not been received, a lien may be filed on the property and foreclosed as provided in Chapter 35.67 RCW. The director may approve a payment plan of equal payments evenly spaced over no more than 12 months. (Ord. 2018-38 § 1; Ord. 2009-12 § 1)
4.10.110 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 to seek cumulative remedies. The city may recover all attorneys’ fees, court costs and other expenses associated with enforcement of this chapter, including but not limited to sampling and monitoring expenses. (Ord. 2018-38 § 1; Ord. 2009-12 § 1)
4.10.120 Compatibility with other regulations.
This chapter is not intended to modify or repeal any other ordinance, rule, regulation, or other provision of law. The requirements of this chapter are in addition to the requirements of any other ordinance, rule, regulation, or other provision of law, and where any provision of this chapter imposes restrictions different from those imposed by any other ordinance, rule, regulation, or other provision of law, whichever provision is more restrictive or imposes higher protective standards for human health or the environment shall control. (Ord. 2018-38 § 1; Ord. 2009-12 § 1)
4.10.130 Ultimate responsibility.
The standards set forth herein and promulgated pursuant to this chapter are minimum standards; therefore this chapter does not intend or imply that compliance by any person will ensure that there will be no contamination, pollution, or unauthorized discharge of pollutants. (Ord. 2018-38 § 1; Ord. 2009-12 § 1)