HomeMy WebLinkAbout97-26 - Adding Chapter 14.36 to Title 14 of the Newport Beach Municipal Code Pertaining to Water QualityORDINANCE NO. 97 -26
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH ADDING CHAPTER 14.36 TO
TITLE 14 OF THE NEWPORT BEACH MUNICIPAL CODE
PERTAINING TO WATER QUALITY
SECTION 1: City Council of the City of Newport Beach finds as follows:
WHEREAS, the City of Newport Beach is authorized by Article XI, Section 5 and
Section 7 of the State Constitution to exercise the police power of the State by adopting
regulations promoting the public health, public safety and general prosperity;
WHEREAS, the City of Newport Beach, has determined that a legitimate local
purpose is present in complying with the provisions of the National Pollution Discharge
Elimination System (NPDES) Permit;
WHEREAS, a reduction in storm water borne pollution will promote the public
health and protect the general welfare of the locality by reducing the level of artificial and
naturally occurring constituents, which may improve the quality of the waters in this region;
WHEREAS, the land use authority exercised by the City of Newport Beach requires
regional planning and the adoption of policies protecting the environment through the
imposition of reasonable conditions on the use of land;
WHEREAS, this Ordinance conforms to the policies and goals of the General Plan
adopted by the City of Newport Beach pursuant to California Planning and Zoning Law, for
the protection of the portions of watersheds located within Orange County by
implementing measures to control erosion and prevent the pollution of streams and other
waters;
WHEREAS, certain provisions of this Ordinance may be coordinated with the Local
Coastal Program for inclusion in Coastal Development Permits, pursuant to California
Public Resources Code Section 30607, as mitigation for the negative effects of grading,
construction, re- construction, and changes to the intensity of use of land or water
resources within the coastal zone;
WHEREAS, the Subdivision Map Act, California Government Code Section 66411,
authorizes the City of Newport Beach to regulate and control the design and improvement
of subdivided lands and mitigate the burdens of proposed development by imposing
• reasonable conditions on map approval;
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Ord 97 -26
WHEREAS, California Constitution Article XI, Section 7 and Government Code
•Section 38660 authorize the City to establish appropriate conditions for the issuance of
building permits, which require the installation of improvements reasonably related to the
proposed use of property;
WHEREAS, Government Code Section 38771 authorizes the City to declare as
public nuisances undesirable acts which may injure health or cause interference with the
comfortable enjoyment of life or property and to provide for the abatement of the same;
WHEREAS, the City of Newport Beach may commence civil actions, pursuant to
Federal Clean Water Act Section 505(a), against any Person or any governmental agency
acting in violation of any condition of the NPDES Permit;
WHEREAS, all industrial dischargers subject to the provisions of the State General
Industrial Storm Water Permit and General Construction Activity Storm Water Permit
(referred to collectively herein as the "State General Permits ") must comply with the lawful
requirements of the City of Newport Beach which regulate discharges of storm water to
the storm drain system within its jurisdiction;
WHEREAS, all industrial dischargers subject to the provisions of the State General
Permits are required to maintain Storm Water Pollution Prevention Plans on -site and make
• them available to the City of Newport Beach for inspection;
WHEREAS, all dischargers subject to the provisions of the State General
Construction Activity Storm Water Permit may be required by the City of Newport Beach
with the concurrence of the Santa Ana or San Diego Regional Water Boards, to amend
any Storm Water Pollution Prevention Plan;
WHEREAS, all industrial dischargers subject to the provisions of the State General
Industrial Storm Water Permit are required to maintain a description of the required
monitoring program on -site and make it available to the City of Newport Beach for
inspection;
WHEREAS, the City of Newport Beach has jurisdiction over certain storm water
facilities and other watercourses within the City of Newport Beach and the water
discharges into these facilities may be subject to the provisions of the State General
Industrial Storm Water Permit; accordingly, the City may certify (but is not required to
certify) in writing that regulated dischargers have developed and implemented effective
Storm Water Pollution Prevention Plans and should not be required to collect and analyze
storm water samples for pollutants;
WHEREAS, the City of Newport Beach has jurisdiction over certain storm water
• facilities and other watercourses within the City of Newport Beach and these facilities may
receive storm water discharges from properties and activities regulated under the
provisions of the State General Permits, and City may request that the regulated
Ord 97 -26
dischargers furnish information and records necessary to determine compliance with the
• State General Permits,
WHEREAS, the City of Newport Beach has jurisdiction over certain storm water
facilities and other watercourses within the City of Newport Beach and these facilities may
receive storm water discharges from properties and activities regulated under the
provisions of the State General Permits, and City may, upon presentation of credentials
and other documents required by law, (i) enter upon the discharger's premises where a
regulated facility is located or where records must be kept under the conditions of the
State General Permits, (ii) access and copy, at reasonable times, any records that must
be kept under the conditions of the State General Permits, (iii) inspect, at reasonable
times, any facility or equipment related to or impacting storm water discharge, and (iv)
sample or monitor for the purpose of ensuring compliance with the State General Permits;
WHEREAS, the enacting of this Ordinance is a condition of the NPDES Permit, the
requirements of which are exempt from the California Environmental Quality Act pursuant
to Public Resources Code Section 21100, et seM c ( "CEQA "); and
WHEREAS, this Ordinance is subject to CEQA categorical exemption classes 1
through 4, 6 through 9, 21 and 22, pursuant to the CEQA Guidelines, respectively, Title
14, California Code of Regulations Sections 15301, 15302, 15303, 15304, 15306, 15307,
• 15308, 15309, 15321 and 15322;
SECTION 2: NOW, THEREFORE, the City Council of the City of Newport Beach
does hereby ordain Chapter 14.36 shall be added to Title 14 of the Newport Beach
Municipal Code to read as follows:
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Ord 97 -26
CHAPTER 14.36
WATER QUALITY
Sections:
14.36.010
Purpose and Intent
14.36.020
Definitions
14.36.030
Illicit Connections and Prohibited Discharges
14.36.040
Control of Urban Runoff
14.36.050
Inspections
14.36.060
Enforcement
14.36.070
Permits
14.36.080
Compliance Disclaimer
14.36.010 Purpose and Intent. The United States Congress passed the Clean
Water Act [33 USC Section 1251 et seMc , as amended, including Section 402(p) therein] as
a mandate, in part, that municipalities separate storm water runoff and sanitary sewer
systems, in areas such as in Orange County, obtain permits to "effectively prohibit non -
storm water discharges into the storm sewers" and "require controls to reduce the
discharge of pollutants to the maximum extent practicable...." This permitting authority
has been delegated by the United States Environmental Protection Agency ( "EPA ") to the
State of California, which has authorized the State Water Resources Control Board and its
local regulatory agencies, the Regional Water Quality Control Boards, to control non -point
source discharges to California's waterways.
The Santa Ana and San Diego Regional Water Quality Control Boards have addressed
the obligation to implement the Clean Water Act by issuing Waste Discharge
Requirements governing storm water runoff for the County of Orange. These permits shall
be referred to collectively herein as the National Pollution Discharge Elimination System
Permit or " NPDES Permits ".
The City of Newport Beach is participating as a "Co- permittee" under the NPDES Permits
in the development and adoption of an ordinance to accomplish the requirements of the
Clean Water Act.
Storm water runoff is one step in the natural cycle of water. However, human activities,
such as agriculture, construction and the operation and maintenance of an urban
infrastructure may result in undesirable discharges of pollutants and certain sediments,
which may accumulate in local drainage channels and waterways and eventually may be
deposited in the waters of the United States.
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The purpose of this Ordinance is to participate in the improvement of water quality and
•comply with federal requirements for the control of urban pollutants to storm water runoff,
which enters the network of storm drains throughout Orange County.
14.36.020 Definitions.
A. "Authorized Inspector" shall mean the City Manager and persons designated by
and under his /her instruction and supervision, who are assigned to investigate
compliance with, detect violations of and /or take actions pursuant to this Ordinance.
B. "City' shall mean the City of Newport Beach, Orange County, California.
C. "City Manager" shall mean the City Manager of the City or his /her designee.
D. "Co- Permittee" shall mean the County of Orange, the Orange County Flood Control
District, and /or any one of the thirty -one (31) municipalities, including the City of
Newport Beach which are responsible for compliance with the terms of the NPDES
Permit.
E. "DAMP' shall mean the Orange County Drainage Area Management Plan, as the
same may be amended from time to time.
• F. "Development Project Guidance" shall mean DAMP Chapter VII and the Appendix
thereto, entitled Best Management Practices for New Development Including Non -
Residential Construction Projects, as the same may be amended from time to time.
G. "Discharge" shall mean any release, spill, leak, pump, flow, escape, leaching
(including subsurface migration or deposition to groundwater), dumping or disposal
of any liquid, semi -solid or solid substance.
H. "Discharge Exception" shall mean the group of activities not restricted or prohibited
by this Chapter, including only:
(i) Discharges composed entirely of storm water; (ii) Discharges subject to
regulation under current EPA or Regional Water Quality Control Board
issued NPDES permits, State General Permits, or other waivers, permits or
approvals granted by an appropriate government agency; (iii) Discharges
from property for which best management practices set forth in the
Development Project Guidance are being implemented and followed; (iv)
Discharges to the Storm Water Drainage System from potable water line
flushing, fire fighting activities, landscape irrigation systems, diverted stream
flows, rising groundwater, and de minimis groundwater infiltration to the
• Storm Water Drainage System (from leaks in joints or connections or cracks
in water drainage pipes or conveyance systems); (v) Discharges from
potable water sources, passive foundation drains, air conditioning
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condensation and other building roof runoff; agricultural irrigation water
• runoff; water from crawl space pumps, passive footing drains, lawn watering,
non - commercial vehicle and boat washing; non - commercial animal washing;
flows from riparian habitats and wetlands; dechlorinated swimming pool
discharges; (vi) Discharges of reclaimed water generated by a lawfully
permitted water treatment facility; public street wash waters when related to
cleaning and maintenance by, or on behalf of, the City; (vii) Discharges
authorized pursuant to a permit issued under Section VIII hereof; (viii)
Discharges allowable under the Domestic Sewage Exception; (ix)
Discharges for which the discharger has reduced to the extent feasible the
amount of Pollutants in such Discharge; (x) and Discharges authorized
pursuant to federal or state laws or regulations. In any action taken to
enforce this Chapter, the burden shall be on the Person who is the subject of
such action to establish that a Discharge was within the scope of this
Discharge Exception.
"Domestic Sewage Exception" shall mean discharges which are exceptions to this
Chapter and excluded from the definition of Prohibited Discharge, as defined
herein, including only:
(i) Discharges composed entirely of accidental spills of
• untreated sanitary wastes (commonly called domestic
sewage) and other wastes, but limited solely to wastes that
are controlled by and are within publicly owned wastewater
treatment system collection facilities immediately prior to the
accidental spill.
J. "Enforcing Attomey" shall mean the City Attorney or District Attorney acting as
counsel to the City of Newport Beach and his /her designee, which counsel is
authorized to take enforcement action. For purposes of criminal prosecution, the
District Attorney, or his /her designee, shall act as the Enforcing Attorney.
K. "EPA" shall mean the Environmental Protection Agency of the United States.
L. "Hearing Officer" shall mean the City Manager who shall preside at the
administrative hearings authorized by this Chapter and issue final decisions on the
matters raised therein.
M. "Invoice for Costs" shall mean the actual costs and expenses of the City including
but not limited to administrative overhead, salaries and other expenses recoverable
under State law, incurred during any Inspection conducted pursuant to Section
14.36.050 or where a Notice of Noncompliance, Administrative Compliance Order
. or other enforcement option under Section 14.36.060, or this Code is utilized to
obtain compliance with this Chapter.
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N. 'Illicit Connection" shall mean any man -made conveyance or drainage system,
pipeline, conduit, inlet or outlet through which the Discharge of any Pollutant to the
Storm Water Drainage System occurs or may occur. The term Illicit Connection
shall not include Legal Nonconforming Connections or connections to the Storm
Water Drainage System that are hereinafter authorized by the agency with
jurisdiction over the system at the location at which the connection is made.
O. "Legal Nonconforming Connection" shall mean connections to the Storm Water
Drainage System existing as of the adoption of this Chapter that were in
compliance with all federal, state and local rules, regulations, statutes and
administrative requirements in effect at the time the connection was established,
including but not limited to any discharge permitted pursuant to the terms and
conditions of an individual discharge permit issued pursuant to the Industrial Waste
Ordinance, County Ordinance No. 703.
P. "New Development' shall mean all public and private residential (whether single
family, multi -unit or planned unit development), industrial, commercial, retail, and
other non - residential construction projects, or grading for future construction, for
which either a discretionary land use approval, grading permit, building permit or
Non - residential Plumbing Permit is required.
• Q. "Non- residential Plumbing" Permit shall mean a plumbing permit authorizing the
construction and /or installation of facilities for the conveyance of liquids other than
storm water, potable water, reclaimed water or domestic sewage.
R. "NPDES Permit' shall mean the currently applicable municipal discharge permit[s]
issued by the Regional Water Quality Control Board, Santa Ana Region which
permit[s] establishes waste discharge requirements applicable to storm water runoff
in the City.
S. "Person" shall mean any natural person as well as any corporation, partnership,
government entity or subdivision, trust, estate, cooperative association, joint
venture, business entity, or other similar entity, or the agent, employee or
representative of any of the above.
T. "Pollutant' shall mean any liquid, solid or semi -solid substances, or combination
thereof, including and not limited to:
1. Artificial materials (such as floatable plastics, wood products or metal
shavings);
• 2. Household waste (such as trash, paper, and plastics; cleaning chemicals;
yard wastes; animal fecal materials; used oil and fluids from vehicles, lawn
mowers and other common household equipment);
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• 3. Metals and non - metals, including compounds of metals and non - metals,
(such as cadmium, lead, zinc, copper, silver, nickel, chromium, cyanide,
phosphorus and arsenic), with characteristics which cause an adverse effect
on living organisms;
4. Petroleum and related hydrocarbons (such as fuels, lubricants, surfactants,
waste oils, solvents, coolants and grease);
5. Animal wastes (such as Discharge from confinement facilities, kennels, pens
and recreational facilities, including stables, show facilities, or polo fields);
6. Substances having a pH less than 6.5 or greater than 8.6, or unusual
coloration, turbidity or odor;
7. Waste materials and wastewater generated on construction sites and by
construction activities (such as painting and staining; use of sealants and
glues; use of lime; use of wood preservatives and solvents; disturbance of
asbestos fibers, paint flakes or stucco fragments; application of oils,
lubricants, hydraulic, radiator or battery fluids; construction equipment
washing; concrete pouring and cleanup; use of concrete detergents; steam
• cleaning or sand blasting; use of chemical degreasing or diluting agents; and
use of super chlorinated water for potable water line flushing);
8. Materials causing an increase in biochemical oxygen demand, chemical
oxygen demand or total organic carbon;
9. Materials which contain base /neutral or acid extractable organic compounds;
10. Those Pollutants defined in Section '1362(6) of the Federal Clean Water Act;
and
11. Any other constituent or material, including but not limited to pesticides,
herbicides, fertilizers, fecal coliform, fecal streptococcus or enterococcus, or
eroded soils, sediment and particulate materials, in quantities that will
interfere with or adversely affect the beneficial uses of the receiving waters,
flora or fauna of the State.
U. "Prohibited Discharge" shall mean any Discharge which contains any Pollutant,
from public or private
property to (i) the
Storm Water Drainage System; (ii)
any
upstream flow, which
is tributary to the
Storm Water Drainage System; (iii)
any
groundwater, river, stream, creek, wash
or dry weather arroyo, wetlands
area,
• marsh, coastal slough, or (iv) any coastal harbor, bay, or the Pacific Ocean. The
term Prohibited Discharge shall not include Discharges allowable under the
Discharge Exception.
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• V. "Significant Redevelopment' shall mean the rehabilitation or reconstruction of public
or private residential (whether single family, multi -unit or planned unit development),
industrial, commercial, retail, or other non - residential structures, for which either a
discretionary land use approval, grading permit, building permit or Non-
residential Plumbing Permit is required.
W. "State General Permit' shall mean either the State General Industrial Storm Water
Permit or the State General Construction Permit and the terms and requirements of
either or both. In the event the U.S. Environmental Protection Agency revokes the
in -lieu permitting authority of the State Water Resources Control Board, then the
term State General Permit shall also refer to any EPA administered storm water
control program for industrial and construction activities.
X. "Storm Water Drainage System" shall mean street gutter, channel, storm drain,
constructed drain, lined diversion structure, wash area, inlet, outlet or other facility,
which is a part of or tributary to the County -wide storm water runoff system and
owned, operated, maintained or controlled by County of Orange, the Orange
County Flood Control District or any Co- Permittee City, and used for the purpose of
collecting, storing, transporting, or disposing of storm water.
•14.36.030 Illicit Connections and Prohibited Discharges.
A. No Person shall:
1. Construct, maintain, operate and /or utilize any Illicit Connection.
2. Cause, allow or facilitate any Prohibited Discharge.
3. Act, cause, permit or suffer any agent, employee, or independent contractor,
to construct, maintain, operate or utilize any Illicit Connection, or cause,
allow or facilitate any Prohibited Discharge.
B. The prohibition against Illicit Connections shall apply irrespective of whether the
Illicit Connection was established prior to the date of enactment of this Ordinance;
however, Legal Nonconforming Connections shall not become Illicit Connections
until the earlier of the following:
1. For all structural improvements to property installed for the purpose of
Discharge to the Storm Water Drainage System, the expiration of five (5)
years from the adoption of this Chapter.
• 2. For all nonstructural improvements to property existing for the purpose of
Discharge to the Storm Water Drainage System, the expiration of six (6)
months following delivery of a notice to the owner or occupant of the
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property, which states a Legal Nonconforming Connection has been
• identified. The notice of a Legal Nonconforming Connection shall state the
date of expiration of use under this Chapter.
3. A reasonable extension of use may be authorized by the City Manager upon
consideration of the following factors:
(i) The potential adverse effects of the continued use of the connection
upon the beneficial uses of receiving waters;
(ii) The economic investment of the discharger in the Legal
Nonconforming Connection; and
(iii) The financial effect upon the discharger of a termination of the Legal
Nonconforming Connection.
C. A civil or administrative violation of this Section shall occur irrespective of the
negligence or intent of the violator to construct, maintain, operate or utilize an Illicit
Connection or to cause, allow or facilitate any Prohibited Discharge.
D. If an Authorized Inspector reasonably determines that a Discharge, which is
otherwise within the Discharge Exception, may adversely affect the beneficial uses
• of receiving waters, then the Authorized Inspector may give written notice to the
owner of the property or facility that the Discharge Exception shall not apply to the
subject Discharge following expiration of the thirty (30) day period commencing
upon delivery of the notice. Upon expiration of the thirty (30) day period any such
Discharge shall constitute a violation of this Section.
14.036.040 Control of Urban Runoff.
A. New Development and Significant Redevelopment.
1. All New Development and Significant Redevelopment within the City of
Newport Beach shall be undertaken in accordance with:
(i) The DAMP, including but not limited to the Development Project
Guidance; and
(ii) Any conditions and requirements established by the planning
department, engineering department or building department, which
are reasonably related to the reduction or elimination of Pollutants in
storm water runoff from the project site.
• 2. Prior to the issuance by the City of a grading permit, building permit or Non-
residential Plumbing Permit for any New Development or Significant
Redevelopment, the planning department, engineering department or
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building department shall review the project plans and impose terms,
• conditions and requirements on the project in accordance with this Section.
If the New Development or Significant Redevelopment will be approved
without application for a grading permit, building permit or Non - residential
Plumbing Permit, the planning agency planning department, engineering
department, or building department shall review the project plans and
impose terms, conditions and requirements on the project in accordance with
this Section prior to the issuance of a discretionary land use approval or, at
the City's discretion, prior to recordation of a subdivision map.
3. Notwithstanding the foregoing, this compliance with the Development Project
Guidance shall not be required for construction of a (one) single family
detached residence or duplex unless the City planning department,
engineering department or building department determines that the
construction may result in the Discharge of significant levels of a Pollutant
into a tributary to the Storm Water Drainage System.
4. Compliance with the conditions and requirements of the DAMP shall not
exempt any Person from the requirement to independently comply with each
provision of this Chapter.
• 5. If the City planning department, engineering department or building
department determines that the project will have a de minimis impact on the
quality of storm water runoff, then it may issue a written waiver of the
requirement for compliance with the provisions of the Development Project
Guidance.
6. The owner of a New Development or Significant Redevelopment project, or
upon transfer of the property, its successors and assigns, shall implement
and adhere to the terms, conditions and requirements imposed pursuant to
this Section on a New Development or Significant Redevelopment project.
(i) Each failure by the owner of the property or its successors or assigns,
to implement and adhere to the terms, conditions and requirements
imposed pursuant to this Section on a New Development or
Significant Redevelopment project shall constitute a violation of this
Ordinance.
7. The City planning department, engineering department or building
department may require that the terms, conditions and requirements
imposed pursuant to this Section be recorded with the County Recorder's
office by the property owner. The signature of the owner of the property or
• any successive owner shall be sufficient for the recording of these terms,
conditions and requirements and a signature on behalf of the City shall not
be required for recordation.
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B. Cost Recovery.
• The City shall be reimbursed by the project applicant for all costs and expenses
incurred by the planning agency [planning department, engineering department or
building department] in the review of New Development or Significant Development
projects for compliance with the DAMP. The City planning agency [planning
department, engineering department or building department] may elect to require a
deposit of estimated costs and expenses, and the actual costs and expenses shall
be deducted from the deposit, and the balance, if any, refunded to the project
applicant.
14.36.050 Inspections
A. Scope of Inspections.
1. Right to Inspect. Prior to commencing any inspection as authorized below,
the Authorized Inspector shall obtain either the consent of the owner or
occupant of the property or shall obtain an administrative inspection warrant
or criminal search warrant.
2. Entry to Inspect. The Authorized Inspector may enter property to investigate
• the source of any Discharge to any public street, inlet, gutter, storm drain or
the Storm Water Drainage System located within the jurisdiction of the City
of Newport Beach.
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3. Compliance Assessments. The Authorized Inspector may inspect property
for the purpose of verifying compliance with this Chapter, including but not
limited to (i) identifying products produced, processes. conducted, chemicals
used and materials stored on or contained within the property, (ii) identifying
point(s) of discharge of all wastewater, process water systems and
Pollutants, (iii) investigating the natural slope at the location, including
drainage patterns and man -made conveyance systems, (iv) establishing the
location of all points of discharge from the property, whether by surface
runoff or through a storm drain system, (v) locating any Illicit Connection or
the source of Prohibited Discharge, (vi) evaluating compliance with any
permit issued pursuant to Section 14.36.070, and (vii) investigating the
condition of any Legal Nonconforming Connection.
4. Portable Equipment. For purposes of verifying compliance with this
Ordinance, the Authorized Inspector may inspect any vehicle, truck, trailer,
tank truck or other mobile equipment.
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5. Records Review. The Authorized Inspector may inspect all records of the
owner or occupant of property relating to chemicals or processes presently
or previously occurring on -site, including material and /or chemical
inventories, facilities maps or schematics and diagrams, Material Safety Data
Sheets, hazardous waste manifests, business plans, pollution prevention
plans, State General Permits, Storm Water Pollution Prevention Plans,
Monitoring Program Plans and any other record(s) relating to Illicit
Connections, Prohibited Discharges, a Legal Nonconforming Connection or
any other source of contribution or potential contribution of Pollutants to the
Storm Water Drainage System.
6. Sample & Test. The Authorized Inspector may inspect, sample and test any
area runoff, soils area (including groundwater testing), process discharge,
materials within any waste storage area (including any container contents),
and /or treatment system Discharge for the purpose of determining the
potential for contribution of pollutants to the Storm Water Drainage System.
The Authorized Inspector may investigate the 'integrity of all storm drain and
sanitary sewer systems, any Legal Nonconforming Connection or other
pipelines on the property using appropriate tests, including but not limited to
smoke and dye tests or video surveys. The Authorized Inspector may take
photographs or video tape, make measurements or drawings, and create
any other record reasonably necessary to document conditions on the
property.
7. Monitoring. The Authorized Inspector may erect and maintain monitoring
devices for the purpose of measuring any Discharge or potential source of
Discharge to the Storm Water Drainage System.
8. Test Results. The owner or occupant of property subject to inspection shall,
on submission of a written request, receive copies of all monitoring and test
results conducted by the Authorized Inspector.
14.36.060 Enforcement.
A. Administrative Remedies.
1. Notice of Noncompliance. In addition to any other remedy or means of
enforcement authorized by law or this code, the Authorized Inspector may
deliver to the owner or occupant of any property, or to any Person
responsible for an Illicit Connection or Prohibited Discharge a Notice of
Noncompliance. The Notice of Noncompliance shall be delivered in
accordance with this Section.
(i) The Notice of Noncompliance shall identify the provision(s) of this
Chapter or the applicable permit which has been violated. The Notice
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of Noncompliance shall state that continued noncompliance may
• result in additional enforcement actions against the owner, occupant
and /or Person.
(ii) The Notice of Noncompliance shall state a compliance date that must
be met by the owner, occupant and /or Person; provided, however,
that the compliance date may not exceed ninety (90) days unless the
Authorized Inspector extends the compliance deadline an additional
ninety (90) days where good cause exists for the extension.
2. Administrative Compliance Orders.
(i) The Authorized Inspector may issue an Administrative Compliance
Order, which shall be delivered in accordance with this Section of this
Chapter. The Administrative Compliance Order may be issued to:
(a) The owner or occupant of any property requiring abatement of
conditions on the property that cause or may cause a
Prohibited Discharge or an Illicit Connection in violation of this
Chapter;
(b) The owner of property subject to terms, conditions or
requirements imposed on a project in accordance with this
Section to ensure adherence to those terms, conditions and
requirements.
(c) A permittee subject to the requirements of any permit issued
pursuant to Section 14.36.070 to ensure compliance with the
terms, conditions and requirements of the permit.
(d) Any Person responsible for an Illicit Connection or Prohibited
Discharge.
(ii) The Administrative Compliance Order may include the following terms
and requirements:
(a) Specific steps and time schedules for compliance as
reasonably necessary to eliminate an existing prohibited
discharge, or to prevent the imminent threat of a Prohibited
Discharge, including but not limited to a Prohibited Discharge
from any pond, pit, well, surface impoundment, holding or
storage area;
• (b) Specific steps and time schedules for compliance as
reasonably necessary to discontinue any Illicit Connection;
(c) Specific requirements for containment, cleanup, removal,
• storage, installation of overhead covering, or proper disposal of
any Pollutant having the potential to contact storm water runoff;
•
(d) Any other terms or requirements reasonably calculated to
prevent the imminent threat of or continuing violations of this
Chapter, including, but not limited to requirements for
compliance with best management practices guidance
documents promulgated by any federal, State of California or
regional agency;
(e) Any other terms or requirements reasonably calculated to
achieve full compliance with the terms, conditions and
requirements of any permit issued pursuant hereto.
3. Cease and Desist Orders.
(i) The Authorized Inspector may issue a Cease and Desist Order. A
Cease and Desist Order shall be delivered in accordance with this
Section. A Cease and Desist Order may direct the owner or occupant
of any property and /or other Person responsible for a violation of this
Ordinance to:
(a) Immediately discontinue any Illicit Connection or Prohibited
Discharge to the Storm Water Drainage System;
(b) Immediately contain or divert any flow of water off the property,
where the flow is occurring in violation of any provision of this
Ordinance;
(c) Immediately discontinue any other violation of this Ordinance;
(d) Clean up the area affected by the violation.
(ii) The Authorized Inspector may direct by Cease and Desist Order that
the owner of any property or his successor -in- interest, which property
is subject to any conditions or requirements issued pursuant to
Section 14.36.040 of this Chapter or any permittee under any permit
issued pursuant to Section 14.36.070, immediately cease any activity
not in compliance with the conditions or requirements issued pursuant
to Section 14.036.040 of this Chapter, or the terms, conditions and
requirements of the applicable permit.
4. Recovery of Costs. The Authorized Inspector may deliver to the owner or
occupant of any property, any permittee or any other Person who becomes
subject to a notice of noncompliance, administrative or cease and desist
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order, an Invoice for Costs. An Invoice for Costs shall be delivered in
• accordance with this Section. An Invoice for Costs shall be immediately due
and payable to the City in issuing and enforcing any notice or order. If any
owner or occupant, permittee or any other Person subject to an invoice for
costs fails to either pay the Invoice for Costs or appeal successfully the
Invoice for Costs in accordance with this Section then the Enforcing Attorney
may institute collection proceedings.
5. Delivery of Notice. Any Notice of Noncompliance, Administrative
Compliance Order, Cease and Desist Order or Invoice of Costs to be
delivered pursuant to the requirements of this Chapter shall be subject to the
following:
(i) The notice shall state that the recipient has a right to appeal the
matter as set forth in this Section.
(ii) Delivery shall be deemed complete upon (a) personal service to the
recipient; (b) deposit in the U.S. mail, postage pre -paid for first class
delivery; or (c) facsimile service with confirmation of receipt.
(iii) Where the recipient of notice is the owner of the property, the address
• for notice shall be the address from the most recently issued
equalized assessment roll for the property or as otherwise appears in
the current records of the City.
(iv) Where the owner or occupant of any property cannot be located after
the reasonable efforts of the Authorized Inspector, a Notice of
Noncompliance, Administrative Compliance or Cease and Desist
Order shall be deemed delivered after posting on the property for a
period of ten (10) business days.
6. Administrative Hearina for Notices of Noncompliance. Administrative
Compliance Orders Invoices for Costs and Adverse Determinations. Any
Person receiving a Notice of Noncompliance, Administrative Compliance
Order, a notice of Legal Nonconforming Connection, an Invoice for Costs, or
any Person who is subject to any adverse determination made pursuant to
this Chapter, may appeal the matter by requesting an administrative hearing.
Notwithstanding the foregoing, these administrative appeal procedures shall
not apply to criminal proceedings initiated to enforce this Chapter.
determination shall, within thirty (30) days of receipt thereof, file a written
request for an administrative hearing, accompanied by an administrative
16
7. Request for Administrative Hearing.
Any
person appealing a
Notice of
Noncompliance, an Administrative
Compliance Order, a notice
of Legal
Nonconforming Connection, an
Invoice
for Costs or an
adverse
•
determination shall, within thirty (30) days of receipt thereof, file a written
request for an administrative hearing, accompanied by an administrative
16
hearing fee as established by separate resolution of the City Council, with
• the Office of the City Clerk, with a copy of the request for administrative
hearing mailed on the date of filing to the City Manager, or the Authorized
Inspector and the City Attorney. Thereafter, a hearing on the matter shall be
held before the Hearing Officer within forty -five (45) business days of the
date of filing of the written request unless, in the reasonable discretion of the
Hearing Officer and pursuant to a written request by the appealing party, a
continuance of the hearing is granted'.
8. Administrative Hearing for Cease and Desist Orders and Emergency
Abatement Actions. An administrative hearing on the issuance of a Cease
and Desist Order or following an emergency abatement action shall be held
within five (5) business days following the issuance of the order or the action
of abatement, unless the hearing (or the time requirement for the hearing) is
waived in writing by the party subject to the Cease and Desist Order or the
emergency abatement. A request for an administrative hearing shall not be
required from the Person subject to the Cease and Desist Order or the
emergency abatement action.
9. Hearing Proceedings. The Authorized Inspector shall appear in support of
the notice, order, determination, Invoice for Costs or emergency abatement
• action, and the appealing party shall appear in support of withdrawal of the
notice, order, determination, Invoice for Costs, or in opposition to the
emergency abatement action.
10. Final Decision and Appeal. The final decision of the Hearing Officer shall
issue within ten (10) business days of the conclusion of the hearing and shall
be delivered by first -class mail, postage prepaid, to the appealing party. The
final decision shall include notice that any legal challenge to the final
decision shall be made pursuant to the provisions of Code of Civil Procedure
Sections 1094.5 and 1094.6 and shall be commenced within ninety (90)
days following issuance of the final decision. If the Appellant is the
prevailing party, the administrative hearing fee paid by Appellant shall be
refunded. Notwithstanding the foregoing, the final decision of the Hearing
Officer in any preceding determining the validity of a Cease and Desist Order
or following an emergency abatement action shall be mailed within five (5)
business days following the conclusion of the hearing.
11. City Abatement. In the event the owner of property, the operator of a facility,
a permittee or any other Person fails to comply with any provision of a
compliance schedule issued to such owner, operator, permittee or Person
pursuant to this Chapter, the Authorized Inspector may request the Enforcing
. Attorney to obtain an abatement warrant or other appropriate judicial
authorization to enter the property, abate the condition and restore the area.
Any costs incurred by the City in obtaining and carrying out an abatement
17
warrant or other judicial authorization may be recovered pursuant to this
• Section.
B. Nuisance.
Any condition in violation of the prohibitions of this Chapter, including but not limited
to the maintenance or use of any Illicit Connection or the occurrence of any
Prohibited Discharge, shall constitute a threat to the public health, safety and
welfare, and is declared and deemed a nuisance and may be abated pursuant to
Section 10.50 of this code.
1. Emergency Abatement. In the event the nuisance constitutes an imminent
danger to public safety or the environment, the City Manager may enter the
property from which the nuisance emanates, abate the nuisance and restore
any property affected by the nuisance:. To the extent reasonably practicable,
informal notice shall be provided to the owner or occupant prior to
abatement. If necessary to protect the public safety or the environment,
abatement may proceed without prior notice to or consent from the owner or
occupant thereof and without judicial warrant.
(i) An imminent danger shall include, but is not limited to, exigent
circumstances created by the dispersal of Pollutants, where the same
• presents a significant and immediate threat to the public safety or the
environment.
(ii) Notwithstanding the authority of the City to conduct an emergency
abatement action, an administrative hearing pursuant to this Section
hereinabove shall follow the abatement action.
2. Reimbursement of Costs. All costs incurred by the City in responding to any
nuisance, all administrative expenses and all other expenses recoverable
under State law, shall be recoverable from the Person(s) creating, causing,
committing, permitting or maintaining the nuisance, including costs relating to
restoration of the environment.
3. Nuisance Lien. All costs shall become a lien against the property from which
the nuisance emanated and a personal obligation against the owner thereof
who shall be given notice of the lien as provided in Chapter 10.50 of this
code.
(i) At the direction of the City Manager or the Authorized Inspector, the
Enforcing Attorney is authorized to collect nuisance abatement costs
or enforce a nuisance lien in an action brought for a money judgment
• or by delivery to the County Assessor of a special assessment against
the property in accord with the conditions and requirements of
Government Code 38773.5.
18
• C. Consecutive Violations.
Each day in which a violation occurs and each separate failure to comply with either
a separate provision of this Chapter, an Administrative Compliance Order, a Cease
and Desist Order or a permit issued pursuant to this Ordinance, shall constitute a
separate violation of this Chapter punishable by fines or sentences issued in
accordance with Chapter 1.04 of this Code.
D. Non - exclusive Remedies.
Each and every remedy available for the enforcement of this Chapter shall be non-
exclusive and it is within the discretion of the Authorized Inspector or Enforcing
Attorney to seek cumulative remedies, except that multiple monetary fines or
penalties shall not be available for any single violation of this Chapter.
E. Citations.
Pursuant to Penal Code Section 836.5, the Authorized Inspector shall have the
authority to cause the arrest of any Person committing a violation of this Ordinance.
The Person shall be released and issued a citation to appear before a magistrate
• in accordance with Penal Code Sections 853.5, 853.6, and 853.9, unless the
Person demands to be taken before a magistrate. Following issuance of any
citation the Authorized Inspector shall refer the matter to the Enforcing Attorney.
•
Each citation to appear shall state the name and address of the violator, the
provisions of this Chapter violated, and the time and place of appearance before
the court, which shall be at least ten (10) business days after the date of violation.
The Person cited shall sign the citation giving his or her written promise to appear
as stated therein. If the Person cited fails to appear, the Enforcing Attorney may
request issuance of a warrant for the arrest of the Person cited.
F. Violations of Other Laws.
Any Person acting in violation of this Ordinance also may be acting in violation of
the Federal Clean Water Act or the State Porter - Cologne Act and other laws and
also may be subject to sanctions including civil liability. Accordingly, the Enforcing
Attorney is authorized to file a citizen suit pursuant to Federal Clean Water Act
Section 505(a), seeking penalties, damages, and orders compelling compliance,
and other appropriate relief. The Enforcing Attorney may notify EPA Region IX, the
Santa Ana or San Diego Regional Water Quality Control Boards, or any other
appropriate state or local agency, of any alleged violation of this Ordinance.
13E
G. Functions.
• At the request of the City Manager the Enforcing Attorney may cause the filing in a
court of competent jurisdiction, of a civil action seeking an injunction against any
threatened or continuing noncompliance with the provisions of this Ordinance. Any
temporary, preliminary or permanent injunclion issued pursuant hereto may include
an order for reimbursement to the City of all costs incurred in enforcing this
Ordinance, including costs of inspection, investigation and monitoring, the costs of
abatement undertaken at the expense of the City, costs relating to restoration of the
environment and all other expenses as authorized by law.
14.036.070 Permits.
A. Discharge Permit Procedure.
1. Permit. On application of the owner of property or the operator of any
facility, which property or facility is not otherwise subject to the requirements
of a State General Permit or a National Pollution Discharge Elimination
System Permit regulating storm water discharges, the City Manager or
designee may issue a permit authorizing the release of non -storm water
Discharges to the Storm Water Drainage System if:
• (i) The Discharge of material or constituents is reasonably necessary for
the conduct of otherwise legal activities on the property; and
•
(ii) The Discharge will not cause a nuisance, impair the beneficial uses of
receiving waters, or cause any reduction in established water quality
standards.
2. Application. The applicant shall provide all information requested by the City
Manager for review and consideration of the application, including but not
limited to specific detail as to the activities to be conducted on the property,
plans and specifications for facilities located on the property, identification of
equipment or processes to be used on -site and other information as may be
requested in order to determine the constituents, and quantities thereof,
which may be discharged if permission is granted.
3. Permit Issuance. The permit shall be granted or denied by the City Manager
or his or her designated representative, no later than sixty (60) business
days following the receipt of a completed application as determined by the
City Manager. The applicant shall be notified in person or by first -class mail,
postage prepaid, of the action taken.
0401
4. Permit Conditions. The permit may include terms, conditions and
• requirements to ensure compliance with the objectives of this Chapter and
as necessary to protect the receiving waters, including but not limited to:
(i) Identification of the Discharge location on the property and the
location at which the Discharge will enter the Storm Water Drainage
System;
(ii) Identification of the constituents and quantities thereof to be
discharged into the Storm Water Drainage System;
(iii) Specification of pollution prevention techniques and structural or non-
structural control requirements as reasonably necessary to prevent
the occurrence of potential Discharges in violation of this Ordinance;
(iv) Requirements for self- monitoring of any Discharge;
(v) Requirements for submission of documents or data, such as technical
reports, production data, Discharge reports, self- monitoring reports
and waste manifests; and
• (vi) Other terms and conditions appropriate to ensure compliance with the
provisions of this Ordinance and the protection of receiving waters,
including requirements for compliance with best management
practices guidance documents approved by any federal, State of
California or regional agency.
5. General Permit. In the discretion of the City Manager the permit may, in
accordance with the conditions identified in this Section be prepared as a
general permit applicable to a specific category of activities. If a general
permit is issued, any person intending to Discharge within the scope of the
authorization provided by the general permit may do so by filing an
application with the City Manager. No discharge within the scope of the
general permit shall occur until such application is so filed, unless, the City
Manager in his discretion, has, as a condition of the general permit
eliminated the requirement that an application for a general permit be filed.
6. Permit Fees. The permission to Discharge shall be conditioned upon the
applicant's payment of the City's costs, in accordance with a fee schedule
adopted by separate resolution of the City Council, as follows:
(i) For individually issued permits, the costs of reviewing the permit
• application, preparing and issuing the permit, and the costs
reasonably related to administrating the permit program.
21
(ii) For general permits, the costs of reviewing the permit application, that
• portion of the costs of preparing the general permit which is
reasonably attributable to the permittee's application for the general
permit, and the costs reasonably related to administering the general
permit program, unless the general permit does not require an
application.
B. Permit Suspension Revocation or Modification.
1. The City Manager may suspend or revoke any permit when it is determined
that:
(i) The permittee has violated any term, condition or requirement of the
permit or any applicable provision of this Chapter; or
(ii) The permittee's Discharge or the circumstances under which the
Discharge occurs have changed so that it is no longer appropriate to
except the Discharge from the prohibitions on Prohibited Discharge
contained within this Ordinance; or
(iii) The permittee fails to comply with any schedule for compliance issued
• pursuant to this Ordinance; or
(iv) Any regulatory agency, including EPA or a Regional Water Quality
Control Board having jurisdiction over the Discharge, notifies the City
that the Discharge should be terminated.
•
2. The City Manager may modify any permit when it is determined that:
(i) Federal or state law requirements have changed in a manner that
necessitates a change in the permit; or
(ii) The permittee's Discharge or the circumstances under which the
Discharge occurs have changed so that it is appropriate to modify the
permit's terms, conditions or requirements; or
(iii) A change to the permit is necessary to ensure compliance with the
objectives of this Chapter or to protect the quality of receiving waters.
The Permittee, or in the case of a general permit, each Person who has filed
an application pursuant to this Section, shall be informed of any change in
the permit terms and conditions at least sixty (60) days prior to the effective
date of the modified permit. In the case of a general permit issued pursuant
to Section 14.036.070(A)(1), any change in the permit terms and conditions
shall be published in newspaper of general circulation within the City
22
[County] at least sixty (60) days prior to the effective date of the modified
• permit.
3. The determination that a permit shall be denied, suspended, revoked or
modified may be appealed by a permittee pursuant to the same procedures
applicable to appeal of an Administrative Compliance Order hereunder. In
the absence of a judicial order to the contrary, the permittee may continue to
Discharge pending issuance of the final administrative decision by the
Hearing Officer.
C. Permit Enforcement.
1. Penalties. Any violation of the terms, conditions and requirements of any
permit issued by the City Manager shall constitute a violation of this Chapter
and subject the violator to the administrative, civil and criminal remedies
available under this Chapter.
D. Compliance with the terms, conditions and requirements of a permit issued
pursuant to this Section shall not relieve the permittee from compliance with all
federal, state and local laws, regulations and permit requirements, applicable to the
activity for which the permit is issued.
• 1. Limited Permittee Rights. Permits issued under this Section are for the
Person or entity identified therein as the " Permittee" only, and authorize the
specific operation at the specific location identified in the permit. The
issuance of a Permit does not vest the permittee with a continuing right to
Discharge.
2. Transfer of Permits. No permit issued to any Person may be transferred to
allow:
(i) A Discharge to the Storm Water Drainage System at a location other
than the location stated in the original permit; or
(ii) A Discharge by a Person other than the Person named in the permit,
provided however, that the City may approve a transfer if written
approval is obtained, in advance, from the City Manager.
14.36.080 Compliance Disclaimer
Full compliance by any Person or entity with the provisions of this Chapter shall not
preclude the need to comply with other local, state or federal statutory or regulatory
• requirements, which may be required for the control of the Discharge of Pollutants into
storm water and /or the protection of storm water quality.
23
SECTION 3: INTERAGENCY COOPERATION
• A. The City intends to cooperate with other agencies with jurisdiction over storm water
discharges to ensure that the regulatory purposes underlying storm water
regulations promulgated pursuant to the Clean Water Act (33 USC Section 1251
et seg.) are met.
B. The City may, to the extent authorized by law, elect to contract for the services of
any public agency or private enterprise to carry out the planning approvals,
inspections, permits and enforcement authorized by this Ordinance.
SECTION 4: If any section, subsection, sentence, clause or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this Ordinance. The City
Council hereby declares that it would have passed this Ordinance and each section,
subsection, clause or phrase hereof, irrespective of the fact that any one or more sections,
subsections, sentences, clauses and phrases be declared unconstitutional.
SECTION 5: The Mayor shall sign and the City Clerk shall attest to the passage of
this Ordinance. The City Clerk shall cause the same to be published once in the official
• newspaper within fifteen (15) days after its adoption
•
This Ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 14th day of July 1997, and adopted on
the 28th day of July , 1997, by the following vote, to -wit:
AYES, COUNCILMEMBERS o'Neil, Thanson,
Hedges, Glover, Noyes, Mayor Debay
NOES, COUNCILMEMBERS None
ABSENT, COUNCILMEMBERS Edwards
24
ATTEST:
CITY CLERK
•
MAYOR `
F: \cat \debbie \ord i na n \clean \watqual.d oc
07 -08 -97
•
25
Ord 97 -26
L J
L�
STATE OF CALIFORNIA }
COUNTY OF ORANGE
CITY OF NEWPORT BEACH }
I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do
hereby certify that the whole number of members of the City Council is seven; that the foregoing
ordinance, being Ordinance No. 97 -26 was duly and regularly introduced before and adopted by the
City Council of said City at a regular meeting of said Council, duly and regularly held on the 28th
day of July, 1997, and that the same was so passed and adopted by the following vote, to wit:
Ayes: O'Neil, Thomson, Hedges, Glover, Noyes, and Mayor Debay
Noes: None
Absent: Edwards
Abstain: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
official seal of said City this 29th day of July, 1997.
(Seal.
City Clerk of the City of
Newport Beach, California
CERTIFICATE OF PUBLICATION
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby
certify that Ordinance No. 97 -26 has been duly and regularly published according to law and the
order of the City Council of said City and that same was so published in The Daily Pilot, a daily
newspaper of general circulation on the following date, to wit: August tt, 1997.
In witness whereof, I have hereunto subscribed my name this aL day of
City Clerk of the City of
Newport Beach, California