CHAPTER 12-03
ILLICIT DISCHARGE DETECTION AND ELIMINATION

12-03-001-0001    FINDING OF FACT

12-03-001-0002    PURPOSE AND INTENT

12-03-001-0003    DEFINITIONS

12-03-001-0004    APPLICABILITY

12-03-001-0005    RESPONSIBILITY FOR ADMINISTRATION

12-03-001-0006    ULTIMATE RESPONSIBILITY

12-03-001-0007    SEVERABILITY

12-03-001-0008    DISCHARGE PROHIBITIONS

12-03-001-0009    PROHIBITION OF ILLICIT CONNECTIONS

12-03-001-0010    SUSPENSION OF MS4 ACCESS

12-03-001-0011    INDUSTRIAL OR CONSTRUCTION ACTIVITY DISCHARGES

12-03-001-0012    SUSPENSION DUE TO THE DETECTION OF ILLICIT DISCHARGE

12-03-001-0013    WATERCOURSE PROTECTION

12-03-001-0014    NOTIFICATION OF SPILLS

12-03-001-0015    ENFORCEMENT

12-03-001-0015.1    NOTICE OF VIOLATION, CORRECTIVE ACTION, AND PENALTIES

12-03-001-0015.2    APPEAL OF VIOLATION

12-03-001-0015.3    ENFORCEMENT MEASURES AFTER APPEAL

12-03-001-0015.4    COST OF ABATEMENT OF THE VIOLATION

12-03-001-0015.5    INJUNCTIVE RELIEF

12-03-001-0015.6    VIOLATIONS DEEMED A PUBLIC NUISANCE

12-03-001-0015.7    REMEDIES NOT EXCLUSIVE

12-03-001-0001 FINDING OF FACT

Illicit discharges occur due to illicit connections to the Municipal Separate Storm Sewer System ("MS4") from residential, business, industrial or commercial establishments. As a result of illicit connections, contaminated stormwater, wastes or wastewater enters into storm drains or directly into local waters without receiving treatment from a wastewater treatment plant. Illicit connections may be intentional or may be unknown to the property or business owner and may be due to the connection of floor drains to the MS4. Additional sources of illicit discharges can be attributed to, but not necessarily limited to: failing septic systems, illegal dumping/discharge practices, and the improper disposal of sewage from recreational practices.

12-03-001-0002 PURPOSE AND INTENT

The purpose of this chapter is to provide for the health, safety, and general welfare of the citizens of the City of Flagstaff ("City") through the regulation of non-stormwater discharges to the MS4 to the Maximum Extent Practicable ("MEP") as required by federal and state law. This chapter establishes methods for controlling the introduction of pollutants into the MS4 in order to comply with requirements of the Arizona Pollutant Discharge Elimination System ("AZPDES") or National Pollutant Discharge Elimination System ("NPDES") permit process. The objectives of this chapter are:

A.    To regulate the contribution of pollutants to the MS4 by non-stormwater discharges;

B.    To prohibit illicit connections and discharges to the MS4; and

C.    To establish legal authority to carry out all inspection, surveillance, monitoring, and enforcement procedures necessary to ensure compliance with this chapter.

It is the intent of this chapter to comply with the City of Flagstaff Municipal Stormwater Permit and applicable federal (40 CFR § 122.26) and State of Arizona (ARS Title 49, Chap. 2 Article 3.1 & Arizona Administrative Code Title 18, Chapter 9, Articles 9 & 10) AZPDES regulations for stormwater discharges, to be consistent with the stormwater quality provisions of the Federal Clean Water Act (33 U.S.C. § 1342), and to enable the City to comply with all applicable stormwater quality provisions of federal, state, and local laws and regulations to ensure the future health, safety, and general welfare of the citizens of Flagstaff, as well as the protection and preservation of the local environment.

12-03-001-0003 DEFINITIONS

Unless the context specifically indicates otherwise, the meaning of words and terms used in this article shall be as set forth below.

AZPDES GENERAL PERMIT: Arizona Pollutant Discharge Elimination System (AZPDES) General Permit. A general permit issued by the Arizona Department of Environmental Quality (ADEQ) under authority delegated pursuant to 33 United States Code & 1342(b).

BEST MANAGEMENT PRACTICES (BMP’S): Schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the discharge of pollutants to the MS4. BMP’s also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.

CITY OF FLAGSTAFF OR CITY: Used interchangeably and means the City of Flagstaff, the Stormwater Management Section of the Community Development Division, or an authorized representative of the City of Flagstaff.

CWA: The Clean Water Act or the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq.

DISCHARGE: When used without qualification means the discharge of a pollutant.

EPA: The United States Environmental Protection Agency.

FACILITY: Any land, building, installation, structure, equipment, device, conveyance, area, source, activity or practice from which there is, or with reasonable probability may be, a discharge.

ILLICIT CONNECTION: Any manmade conveyance connecting an illicit discharge directly to an MS4.

ILLICIT DISCHARGE: Any discharge to the MS4 that is not composed entirely of stormwater, except for discharges allowed under the AZPDES Permit No. AZG2002-002.

MAXIMUM EXTENT PRACTICABLE (MEP): The technology based discharge standard for municipal separate storm sewer systems to reduce pollutants in stormwater discharges. A discussion of MEP as it applies to small MS4’s is found at 40 CFR 122.34. CWA section 402(p)(3)(B)(iii) requires that a municipal permit shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including Best Management Practices, control techniques and system design, and engineering methods, and other provisions that the State of Arizona determines appropriate for the control of such pollutants.

MUNICIPAL SEPARATE STORM SEWER SYSTEM (MS4): A conveyance or system of conveyances, separate from the sanitary sewer system, consisting of all structures, basins, and natural or manmade channels that can collect, detain/retain, receive, or convey stormwater or other liquid that is discharged to a water of the United States from, or through, private property, public property, common areas, easements or rights-of-way, infrastructure, including but not limited to, roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, watercourses, culverts, water conduits, and storm drains.

MS4: The stormwater and regulatory industry standard term for Municipal Separate Storm Sewer System.

MUNICIPAL STORMWATER PERMIT: The AZPDES General Permit Arizona Pollutant Discharge Elimination System (AZPDES) Stormwater Permit for discharge from Small Municipal Separate Storm Sewer Systems (MS4’s) to Waters of the United States. This permit is issued by the Arizona Department of Environmental Quality (ADEQ) under authority delegated pursuant to 33 United States Code & 1342(b).

NON-STORMWATER DISCHARGES: Water line flushing, landscape irrigation, diverted stream flows, rising ground waters, uncontaminated ground water infiltration, uncontaminated pumped ground water, discharges from potable water sources, foundation drains, air conditioning condensation, irrigation water, springs, water from crawl space pumps, footing drains, lawn watering, individual residential car washing, flows from riparian habitats and wetlands, dechlorinated swimming pool discharges, street wash water, discharges or flow from firefighting, and operations determined by the City as being necessary to protect public health and safety.

NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES): A permit issued by EPA (or by a state under authority delegated pursuant to 33 USC § 1342(b)).

PERSON: An individual, employee, officer, managing body, trust, firm, joint stock company, consortium, public or private corporation, including a government corporation, partnership, association or state, a political subdivision of this state, a commission, the United States government or any federal facility, interstate body or other entity.

POLLUTANT: Anything which causes or contributes to pollution. Pollutants may include, but are not limited to: contaminants, toxic wastes, chemicals, petroleum products, biological materials, wrecked or discarded equipment, rocks, sand, paints, varnishes and solvents, oil and other automotive fluids, non-hazardous liquid and solid wastes and yard wastes, refuse, rubbish, garbage, litter, or other discarded or abandoned objects, floatables, pesticides, herbicides, and fertilizers, hazardous substances and wastes, heat, sewage, fecal coliform and pathogens, dissolved and particulate metals, animal wastes, wastes and residues that result from constructing a building or structure, noxious or offensive matter of any kind, or any other liquid, solid, gaseous, or hazardous substance.

POLLUTION: The alteration of the physical, thermal, chemical, or biological quality of, or the contamination of, any water of the State or waters of the United States, that renders the water harmful, detrimental, or injurious to humans, animal life, vegetation, or property, or to the public health, safety, or welfare, or impairs the usefulness or the public enjoyment of the water for any lawful or reasonable purpose.

RECEIVING WATERS: A river, ocean, stream, or other watercourse into which wastewater, stormwater or treated effluent is discharged.

STORMWATER: Any surface flow, runoff, or drainage consisting entirely of water from any form of natural precipitation, and resulting from such precipitation.

STORMWATER MANAGEMENT PLAN: A document which describes the Best Management Practices and activities to be implemented by the City to identify sources of pollution or contamination at a site and the actions to eliminate or reduce pollutant discharges to Stormwater, Stormwater Drainage Systems, and/or Receiving Waters to the Maximum Extent Practicable.

STORMWATER POLLUTION PREVENTION PLAN (SWPPP): A document which describes the Best Management Practices and activities to be implemented by a person or business to identify sources of pollution or contamination at a site and the action to eliminate or reduce pollutant discharges to stormwater, MS4, and/or receiving waters to the Maximum Extent Practicable (MEP).

WASTEWATER: Any water or other liquid, other than uncontaminated stormwater, discharged from a facility.

WATERCOURSE: Any body of water, including but not limited to, lakes, ponds, rivers, streams, and washes whether perennial, intermittent or ephemeral.

WATERS OF THE UNITED STATES:

1.    All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

2.    All interstate waters, including interstate wetlands;

3.    All other waters such as interstate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters:

a)    Which are or could be used by interstate or foreign travelers for recreational or other purposes;

b)    From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

c)    Which are used or could be used for industrial purposes by industries in interstate commerce;

4.    All impoundments of waters otherwise defined as waters of the Unites States under this definition;

5.    Tributaries of waters identified in paragraphs (1) through (4) of this definition;

6.    The territorial sea; and

7.    Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs 1 through 6 of this definition.

Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the CWA (other than cooling ponds for steam electric generation stations per 40 CFR 423, which also meet the criteria of this definition) are not waters of the United States. Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.

12-03-001-0004 APPLICABILITY

This chapter shall apply to all water entering the MS4 or its watercourses and all Waters of the U.S. within the City limits, whether generated on any developed or undeveloped lands, unless explicitly exempted by the AZPDES/NPDES General Permit.

12-03-001-0005 RESPONSIBILITY FOR ADMINISTRATION

The City of Flagstaff Stormwater Management Section Manager or his or her designee shall administer, implement, and enforce the provisions of this chapter. Any powers granted or duties imposed upon the Stormwater Management Section Manager may be delegated to persons or entities acting in the beneficial interest of or in the employ of the City of Flagstaff. Any person who has been delegated any power or duty described under this chapter is an authorized representative.

12-03-001-0006 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.

12-03-001-0007 SEVERABILITY

The provisions of this chapter are hereby declared to be severable. If any provision, clause, sentence, or paragraph of this chapter or the application thereof to any person, establishment, or circumstances shall be held invalid, such invalidity shall not affect the other provisions or application of this chapter.

12-03-001-0008 DISCHARGE PROHIBITIONS

The following are prohibited:

1.    Illicit discharges;

2.    Any discharge that is a source of pollutants;

3.    Allowing or causing any unauthorized discharge that contributes a pollutant to stormwater;

4.    Any discharge that contributes to a violation of the City’s Municipal Stormwater Permit;

5.    Establishing, using, and/or maintaining any connection that allows a discharge that contributes a pollutant to stormwater;

6.    Depositing, dumping or storing any materials in a manner that may contribute a pollutant to, or obstruct the flow of, stormwater;

7.    Discharges from commercial car washing, mobile car washing, or impervious surface pressure washing operations;

8.    Misrepresentation in any document pertaining to an approved plan, permit, or certification relating to a discharge activity.

The following categories of non-stormwater discharges are only prohibited if the discharges are identified as significant contributors of pollutants to or from the MS4: water line flushing, landscape irrigation, diverted stream flows, rising ground waters, uncontaminated ground water infiltration, uncontaminated pumped ground water, discharges from potable water sources, foundation drains, air conditioning condensation, irrigation water, springs, water from crawl space pumps, footing drains, lawn watering, individual residential car washing, flows from riparian habitats and wetlands, dechlorinated swimming pool discharges, street wash water, discharges or flow from firefighting, and operations determined by the City as being necessary to protect public health and safety.

The prohibition shall not apply to any non-stormwater discharge permitted under a NPDES permit, waiver, or waste discharge order issued to the discharger and administered under the authority of the EPA or the ADEQ, provided that the discharger is in full compliance with all requirements of the permit, waiver, or order and other applicable laws and regulations, and provided that written approval has been granted for any discharge to the storm drain system.

12-03-001-0009 PROHIBITION OF ILLICIT CONNECTIONS

The construction, use, maintenance or continued existence of illicit connections to the storm drain system is prohibited.

This prohibition expressly includes, without limitation, illicit connections made in the past, regardless of whether the connection was permissible under law or practices applicable or prevailing at the time of connection.

A person is considered to be in violation of this chapter if the person connects a line conveying a pollutant to the MS4, or allows such a connection to continue.

12-03-001-0010 SUSPENSION OF MS4 ACCESS

The City may, without prior notice, suspend MS4 discharge access 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. 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 to minimize danger to persons.

12-03-001-0011 INDUSTRIAL OR CONSTRUCTION ACTIVITY DISCHARGES

Any person subject to an industrial or construction activity AZPDES/NPDES stormwater discharge permit shall comply with all provisions of such permit. Proof of compliance with said permit may be required. An authorized representative of the City of Flagstaff shall be permitted to enter and inspect facilities subject to regulation under Industrial or Construction Activity permits at reasonable times and as often as may be necessary to determine compliance with this chapter. If a discharger has security measures in effect 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 City.

12-03-001-0012 SUSPENSION DUE TO THE DETECTION OF ILLICIT DISCHARGE

Any person discharging to the MS4 in violation of this chapter may be subject to MS4 access termination if such termination would abate or reduce an illicit discharge. The City will notify a violator of the proposed termination date of its MS4 access. The violator may petition the City Stormwater Management Section for a reconsideration and hearing. 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 of Flagstaff Stormwater Management Section.

12-03-001-0013 WATERCOURSE PROTECTION

Every person owning property through which a watercourse passes, or such person’s lessee, 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. All maintenance activities must be in compliance with Federal, State and Municipal regulations.

12-03-001-0014 NOTIFICATION OF SPILLS

The owner, operator, or the person who has control of the source or location of any potential spill or release, which may result in a discharge that is not in compliance with this chapter, shall:

A.    Post notices to employees containing information about whom to contact and what procedures to follow in the event of an accidental discharge or spill.

B.    In the event of a spill, promptly take all reasonable safety precautions including, if appropriate, calling 911 and completing the following steps:

1.    Proceed with containment and clean up in accordance with:

a.    the orders of an involved health and safety agency, or if no such orders have been issued;

b.    the orders of an authorized representative, or if no such orders have been issued;

c.    the Stormwater Pollution Prevention Plan or approved corrective action plan utilizing Best Management Practices for the involved facility.

2.    Report any violations of the Flagstaff Fire Code or other such applicable safety or health codes in the manner required by such code;

3.    Notify the City of Flagstaff Stormwater Management Section and the Arizona Department of Environmental Quality of the release by telephone before noon of the next working day;

4.    Provide written notification, within five working days, to the City of Flagstaff, Stormwater Management Section of the type, volume, cause of the discharge, corrective actions taken, and measures to be taken to prevent future occurrences.

12-03-001-0015 ENFORCEMENT

12-03-001-0015.1 NOTICE OF VIOLATION, CORRECTIVE ACTION, AND PENALTIES

Upon discovery of a violation of this chapter, the Stormwater Management Section or authorized representative may issue to the violator a written notice stating the nature of the violation, the corrective action required, the time frame for corrective action, and the penalties for continued non-compliance. The statement shall inform the owner or occupant that failure to pay the penalties will result in a lien against the property. The notice shall be served either by personal service or certified mail, upon the owner, the owner’s agent, the occupant, or the lessee. The notice may also require the violator to:

1.    Submit a corrective action plan to the City of Flagstaff Stormwater Management Section indicating the cause of the violation, corrective actions to prevent recurrence, and a proposed compliance schedule;

2.    Pay all costs of sampling and analysis, as well as costs for laboratory sample analysis;

3.    Clean up any material that has left the property or has the potential to impact stormwater runoff, ensure that the clean up has been completed, and make changes in operations to prevent future releases;

4.    Obtain and pay for the services of a qualified person to oversee and certify that corrective actions needed to resolve the violation have been completed;

5.    Prepare and implement a Best Management Practices Plan to prevent stormwater pollution, regardless of AZPDES/NPDES requirements;

6.    Stop work on clearing, dredging, grading, excavating, storing, transporting, and/or filling of land, new construction, improvements, alterations, or additions;

7.    Stop any activity that is in violation of this chapter;

8.    Abate, within the time specified in the notice, any condition that is in violation of this chapter; and

9.    Abate immediately any condition in violation of this chapter, if the Stormwater Management Section authorized representative determines that such condition presents an immediate threat to public health, safety, or the environment;

10.    If violator refuses or is unable to immediately abate a condition that presents an immediate threat to public health, safety or the environment the City may use all means necessary to abate the incident to protect the public health, safety or the environment and the City may charge all costs of such abatement to the violator.

The City may approve the compliance schedule or corrective action plan utilizing Best Management Practices submitted by the violator, or may require an alternative compliance schedule or corrective action plan utilizing Best Management Practices. This shall be done within the period specified in the notice. If the City discovers a condition that is likely to cause or is causing a discharge that threatens public health, safety or the environment, mitigation may include an immediate cessation of activity and abatement.

The remedies in this Section are cumulative and the City may seek one or more such remedies.

It is a civil infraction for any person to violate this Section or fail to comply with a notice of violation issued under this Section.

Any person violating this Section shall be liable to the City for all damages, costs, fines and penalties incurred by the City as a result, and shall defend, indemnify, and hold harmless the City against any resulting claims, liabilities or damages.

12-03-001-0015.2 APPEAL OF VIOLATION

Any person receiving a notice of violation may appeal the determination. The notice of appeal must be received by the Stormwater Manager within ten (10) calendar days from the date of the notice:

1.    The request for hearing must be in writing, state the objection to the notice of violation, and be mailed or delivered to the Stormwater Manager;

2.    The Stormwater Manager shall, within five (5) working days of the receipt of an appeal, provide notice of a hearing;

3.    Hearings under Sections 12-03-001-015.02(1) and 12-03-001-015.02(2) of this chapter shall be conducted by the Stormwater Manager, who shall admit all probative and reliable evidence without regard to formal rules of evidence or procedure. The person requesting an appeal may be heard in person and/or by an authorized representative at such hearing. Following the hearing, the Stormwater Manager shall issue a decision as to whether the notice of violation was supported by the evidence;

4.    After the Stormwater Manager has issued a decision, the person requesting an appeal under this chapter shall have the right to appeal the Stormwater Manager’s decision to the City Council, by filing with the Stormwater Manager a written statement setting forth fully the grounds for the appeal, within ten (10) days following the mailing of notice of the action complained of. The Stormwater Manager shall set a time and place for a hearing on such appeal and shall cause a notice of such hearing to be mailed to the appellant no less than five (5) working days prior to the date set for such hearing. The hearing by the City Council shall be conducted in the same manner as set forth in Section 12-03-001-015.02(3) above. The decision of the City Council shall be final.

12-03-001-0015.3 ENFORCEMENT MEASURES AFTER APPEAL

If the violation has not been corrected pursuant to the requirements set forth in the notice of violation, then representatives of the City may enter upon the subject private property and are authorized to take any and all measures necessary to abate the violation. However, should the violator appeal the decision, representatives of the City may enter the property no sooner than three days after the Council decision is rendered to take all steps necessary to abate the violation and the property owner shall be responsible for the cost of abatement. It shall be unlawful for any person, owner, agent or person in possession of any premises to refuse to allow the City and/or its designated contractor to enter upon the premises for the purposes set forth above.

12-03-001-0015.4 COST OF ABATEMENT OF THE VIOLATION

Within thirty (30) calendar days after abatement of the violation, the owner of the property will be notified of the cost of abatement, including administrative costs. The property owner may file a written protest objecting to the amount of the assessment within fifteen (15) calendar days. If the amount due is not paid within fifteen (15) calendar days or by the time in which to file for an appeal is expired, the charges shall become a special assessment against the property and shall constitute a lien on the property for the amount of the assessment. The assessment shall be recorded in the office of the Coconino County Recorder, including the date, amount of the assessment, and the legal description of the property against which the assessment is made. From the date of its recording, the assessment shall be a lien on the property and shall accrue interest at the rate prescribed by Arizona Revised Statutes, Section 44-1201. The City shall have the right to bring an action to enforce the lien in the Superior Court of Coconino County at any time after the recording of the assessment, but failure to enforce the lien by such action shall not affect its validity. The recorded assessment shall be prima facie evidence of the truth of all matters recited therein, and of the regularity of all proceedings prior to the recording of the assessment.

12-03-001-0015.5 INJUNCTIVE RELIEF

It shall be unlawful for any person to violate any provisions or to fail to comply with any of the requirements of this chapter. If a person has violated or continues to violate any provisions of this chapter, the City may petition the Coconino County Superior Court for a preliminary or permanent injunction restraining the person from activities which would create further violations or compelling the person to perform abatement or remediation of the violation.

12-03-001-0015.6 VIOLATIONS DEEMED A PUBLIC NUISANCE

In addition to the enforcement processes and penalties provided herein, if any condition caused or permitted to exist in violation of any of the provisions of this chapter is a threat to public health, safety, and welfare, and is declared and deemed a nuisance by the City, such condition may be immediately abated or restored at the violator’s expense, and/or a civil action to abate, enjoin, or otherwise compel the cessation of such nuisance may be taken.

12-03-001-0015.7 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 of Flagstaff to seek cumulative remedies. The City may recover all attorneys’ fees, court costs, and other expenses associated with enforcement of this chapter, including sampling and monitoring expenses.