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Home My WebLink AboutResolutions - No. 2016-149RESOLUTION NO. 2016-149 A RESOLUTION OF THE LODI CITY COUNCIL APPROVING CITY OF LODI STORM WATER ENFORCEMENT RESPONSE PLAN AND ADMINISTRATIVE PENALTY SCHEDULE WHEREAS, on February 5, 2013, the State Water Resources Control Board adopted Order No. 2013-0001-DWQ, which updated the State's General Permit for the National Pollutant Discharge Elimination System (NPDES) Phase II Municipal Separate Storm Sewer System (MS4) Storm Water Permit (Permit); and WHEREAS, City of Lodi is subject to the Permit which requires permittees to develop or update a Storm Water Enforcement Response Plan (ERP) within the third year of Permit update; and WHEREAS, using State guidelines, the ERP describes how the City will address repeat and continuing storm water violations by implementing escalating enforcement responses as necessary to achieve compliance; and WHEREAS, the ERP is required to describe the enforcement responses based on types of violations; how repeat and continuing violations are addressed; and when monetary fines, including civil or administrative penalties, will be assessed; and WHEREAS, as outlined in the ERP, the City will initially use the least stringent enforcement action available with each successive enforcement action based on the violator's responsiveness and the severity of the violation; and WHEREAS, staff recommends that the City Council approve: the City of Lodi Storm Water ERR and the Administrative Penalty Schedule, attached hereto as Exhibit A and made a part of this Resolution. NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby approve the City of Lodi Storm Water Enforcement Response Plan and the Administrative Penalty Schedule, as shown on Exhibit A attached. hereto and made a part of this Resolution. Dated: August 3, 2016 I hereby certify that Resolution No. 2016-149 was passed and adopted by the City Council of the City of Lodi in a regular meeting held August 3, 2016 by the following vote: AYES: NOES: ABSENT: ABSTAIN: COUNCIL MEMBERS — Johnson, Kuehne, Mounce, and Mayor Chandler COUNCIL MEMBERS — None COUNCIL MEMBERS — Nakanishi COUNCIL MEMBERS — None 2016-149 SJNNIFE CFERRAIOLO ity Clerk [1 Aft Storm Water Enforcement Response Plan TABLE OF CONTENTS I. ENFORCEMENT RESPONSE PLAN REVISIONS........,:....................................................... I II. TERMS AND ABBREVIATIONS.................................,.............,.....................,..........,.........I 1. INTRODUCTION....................................................... .. .................. ... .................. I 1.1. PURPOSE AND APPROACH...................................................:...............:.................... 1 2. ENFORCEMENT RESPONSES.......................................................................::......:......:..... 1 2.1. VERBAL / WRITTEN WARNINGS (NOTICE OF CORRECTION) ........................... 1 2.2. WRITTEN NOTICES (NOTICE OF VIOLATION)....................................................... 2 2.3. ESCALATED ENFORCEMENT MEASURES...................::..:...............i.....................: 3 2.4. ENFORCEMENT FLOW CHART.........................,...................................................... 6 3. SERVICE OF NOTICES, AND ENFORCEMENT TRACKING ..................................:....... 6 3.1. METHOD OF SERVICE ..................... ...... .... .,....................... :...............:..... :.......... :......... 6 4. ASSESSMENT OF ADMINISTRATIVE PENALTIES........................................:........:...:.:. 7 4.1. ASSESSMENT METHODOLOGY...::.:........:.::.........................:.:............................. 7 4.2. ADMINISTRATIVE PENALTY SCHEDULE............:........:....................................:..:. 8 Rev. 6/12/14 C:IUserslpfarrisOppDatalLocaAMicrosoftlWindowslTemporary Internet Filesl Content Outlook13013VF3MStorm Water Enforcement Response Plan - FINAL, doc ... Storm Water Enforcement Response Plan i I. ENFORCEMENT RESPONSE PLAN REVISIONS Revision No. Date Revised By Reason for Revision Initial Preparation Sections Revised Construction General Permit CVRWQCB Central Valley Regional Water Quality Control Board CWA Clean Water Act EPA Environmental Protection Agency ERP Enforcement Response Plan ESCP Erosion and Sediment Control Plan HARM Harm indicates potential pollutant reaches the municipal storm drain system and/or surface water body IGP Industrial General Permit MS4 Municipal Separate Storm Sewer System NOC II. TERMS AND ABBREVIATIONS BMPs Best Management Practices C&DO Cease and Desist Orders CGP Construction General Permit CVRWQCB Central Valley Regional Water Quality Control Board CWA Clean Water Act EPA Environmental Protection Agency ERP Enforcement Response Plan ESCP Erosion and Sediment Control Plan HARM Harm indicates potential pollutant reaches the municipal storm drain system and/or surface water body IGP Industrial General Permit MS4 Municipal Separate Storm Sewer System NOC Notice of Correction NOI Notice of Intent NOT Notice of Termination NOV Notice of Violation NPDES National Pollutant Discharge Elimination System PRIORITY AREA Priority areas are those drainage areas whose watershed drains directly or indirectly (via pump station) to a surface water body such as Lodi Lake or the Mokelumne River SWPPP Stormwater Pollution Prevention Plan WDID Waste Discharge Identification Rev. 6/20/16 C:IUserslpfarrislAppDatalLocaAMicrosoftlWindowslTemporary Internet FileslContent.OutlooM3013VF3HIStorm Water Enforcement Response Plan-FINAL,doc Ah Storm Water Enforcement Response Plan 1. INTRODUCTION 1.1. PURPOSE AND APPROACH The City of Lodi (City) is subject to the State Water Resources Control Board's (SWRCB) National Pollution Discharge Elimination System (NPDES) Water Quality Order for Small Municipal Separate Storm Sewer Systems (Phase II MS4 Permit). As a result, in compliance with Section E.6.c, the City is required to develop and implement an Enforcement Response Plan. The City adopted the existing Storm Water Ordinance, Lodi Municipal Code (LMC) Chapter 13.14, on June 3, 2015, which incorporates several enforcement mechanisms that can be employed to escalate the level of enforcement depending on the circumstances, including: notices of violation; cease and desist orders; abatement; administrative citations; civil enforcement; and criminal prosecution. The purpose of this document is to formally establish consistency with the City's enforcement procedures and follow-up actions for non-compliance with the City's Storm Water Ordinance, LMC Chapter 13.14. This plan describes how the City will address repeat and continuing violations by implementing escalating enforcement responses as necessary to achieve compliance. LMC Chapter 13.14 and this Enforcement Response Plan (ERP) may be used for NPDES violations, seasonal, and recurrent nuisances, and emergency orders and abatements. The enforcement actions denoted may be used independently depending on the nature and type of the violation(s). The City's approach to ensuring compliance with the LMC and this ERP is based on progressive enforcement. In general, the City will initially use the least stringent enforcement action available for the subject violation, with each successive enforcement action based on the violator's responsiveness and the type of violation. In some cases the City may need to escalate the enforcement actions noted in the ERP based on the severity of violation, history of violations, and responsiveness of the violator. The enforcement official noted herein means the Public Works Director for the City of Lodi or designee, or any agent of the City authorized to enforce the LMC. 2. ENFORCEMENT RESPONSES 2.1. VERBAL / WRITTEN WARNINGS (NOTICE OF CORRECTION) The City will issue verbal and/or written warnings as an optional first level of enforcement response. City staff has the discretion to issue either a verbal warning or a written notice of correction, depending on the circumstances. Verbal warnings are primarily consultative in nature and specify the nature of the violation and required corrective action. Rev. 6/20/16 C: IUserslpfarrisl4ppDatalLocaAMicrosoftlWindowslTemporary Internet FileslContent.Outlook13013VF3HIStorm Water Enforcement Response Plan-FINAL.doc 2.2. WRITTEN NOTICES (NOTICE OF VIOLATION) The City will issue written notices as a typical first level of enforcement response to minor violations with minimal environmental impact. City staff will have the discretion to determine whether a written notice is appropriate for the scenario and whether escalated enforcement measures should be used. TriggersDescriptionEnforcement Action .•. Storm Water Enforcement Response Plan 2 Triggers. Action - Description • First-time violator (minor Verbal /Written • the nature of the violationsor environmental violations or Warnings potential violation(s), document and threat). (Notice of photograph. • No active or imminent threat of Correction) • Specify required corrective actions. significant contamination to the impact on the storm drain system • Recommend (on the spot) appropriate storm drain system or the and the environment. BMPs to correct or prevent violation(s). environment. • Seasonal and recurrent non -storm 6 Follow up with written inspection • Ability for violator to immediately water nuisance flows onto public summary, and photograph. correct situation. right of way. 8 Violator shall take all reasonable steps • Conditions that may result in a • Violator is cooperative and willing to comply with required corrective violation of LMC Chapter 13.14 to remedy situation. actions and recommendations. due to poor housekeeping or 0 City will conduct a follow-up inspection management practices. within four weeks to verify corrections, • Violator is cooperative and willing document in writing, and photograph. to remedy situation. 2.2. WRITTEN NOTICES (NOTICE OF VIOLATION) The City will issue written notices as a typical first level of enforcement response to minor violations with minimal environmental impact. City staff will have the discretion to determine whether a written notice is appropriate for the scenario and whether escalated enforcement measures should be used. TriggersDescriptionEnforcement Action • First-time violators (moderate Written Notices Issue written NOV. Complete NOV threat or isolated incident). (Notice of Violation, specifying code section violations, • Failure to implement appropriate Cease and Desist corrective actions and compliance BMPS after receiving a Order) dates. Include photographs. verbal/written warning. • City will impose deadlines for violator to • Minor infractions with minimal LMC §13.14.420(A) comply with specified corrective impact on the storm drain system actions. and the environment. LMC §1.10.120 a Follow service procedure in LMC • Seasonal and recurrent non -storm §1.10.120. water nuisance flows onto public 0 Conduct follow-up inspection after right of way. compliance deadline; document in • Violator is cooperative and willing writing, and photograph. to remedy situation. • Violator shall submit a written explanation of the violation and a plan for the satisfactory correction and prevention thereof, which shall include specific corrective actions to be taken, to the Enforcement official within the time prescribed in the notice and order per LMC §13.14.420(A)1. • Violator may appeal the notice and order within 10 days per LMC § 13.14.450. Rev. 6/20/16 C:I UserslpfarrislAppDatalLocallMicrosoftlWindowslTemporary Internet FileslContent OutlooM3013VF3HIStorm Water Enforcement Response Plan -FINAL. doc % Storm Water Enforcement Response Plan 3 2.3. ESCALATED ENFORCEMENT MEASURES Escalated enforcement measures may be required in order to achieve compliance and/or adequate mitigation when violations pose a significant impact on the storm drain system and environment, or violators are uncooperative and fail to comply with written notices. The City has established legal authority, pursuant to LMC Chapter 13.14, enacted June 3, 2015, establishing different methods of enforcement actions, which allow the City to escalate enforcement responses when necessary to correct persistent non-compliance, repeat or escalating violations, or incidents of major environmental harm. The City Enforcement official will have the discretion to determine the appropriate level of enforcement based on the nature and type of violation. 1 Triggers. Action - xescription • Failure to comply with Notice and Administrative Civil • Issue administrative civil citation. Order to Abate. Citation LMC ■ Follow service procedure in LMC ■ Failure to submit discharge §13.14.420 (A)12 §1.10.120. abatement plan. ■ Conduct follow-up inspection after ■ Violations with significant impacts deadline to implement corrective on the storm drain system and the actions; document, photograph environment. concerns. • Violator economically benefits from ■ Violator may appeal the notice and the violation. order per LMC §13.14.450. ■ Violator is non-cooperative or minimally cooperative to remedy situation. • Failure to respond appropriately to Stop Work Orders • Notify Violator of unsafe condition, if written notices. LMC possible. • Failure to comply with notice and §13.14.420(D) Immediate cessation of any activities order and/or citations. causing pollutants to enter the storm ■ Violator is not cooperative. water systems that present imminent • Activities when, in the opinion of the danger to the public health, safety, enforcement official, cause an illicit welfare, environment or that could discharge or cause or potentially violate an NPDES permit per LMC cause uncontrolled pollutants to §13.14.420(D). enter the stormwater conveyance Conduct follow-up inspection after system and present an imminent completion date for corrective actions; danger to the public health, safety, document, photograph concerns prior welfare or environment, or a to allowing cessation to be lifted. violation of a NPDES permit. Rev. 6/20/16 C: I UserslpfarrislAppDatalLocallMicrosoftlWindowslTemporary Internet Filesl Content. Outlook13013VF3HI Storm Water Enforcement Response Plan-FINAL.doc • o • Storm Water Enforcement Response Plan 4 TriggersDescription Action Any violation of LMC Chapter 13.14, Criminal + Any violation of LMC Chapter 13.14 is including, but not limited to: Prosecution or Civil a misdemeanor offense per LMC ■ Failure to respond appropriately to Action §13.14.420(A)(7), and violators may written notices. be referred to City Attorney for • Failure to comply with notice and LMC §13.14.420 criminal prosecution per LMC order and/or citations. §13.14.420(C). • Violator is not cooperative. LMC A civil injunction may be sought at any ■ Multiple offenses of similar nature. §13.14.420(B) time, for any violation of LMC Chapter • Minor to moderate infractions with 13.14. minimal to moderate impact on the LMC §1.10.120 storm drain system and the environment. • Third serious violation within a 12 - month period. • Ongoing discharges of pollutants to the storm drain system or to the roadways, including flooding over a city roadway. ■ Discharge causes or threatens to Emergency Orders Notify violator of unsafe condition, if cause a condition that presents an and Abatements possible. imminent danger to the public • Follow service Procedure in LMC health, safety, welfare or LMC §1.10.120. environment. §13.14.420(D) • Abatement may require the cleanup of Discharge causes or threatens to spills, illicit discharges, and dumping cause a violation of a NPDES LMC §1.10.120 to the City's storm drainage system permit. within 72 hours of notification, or • Major violations of LMC sooner, for high risk spills per LMC §13.14.420(D) (e.g. large spills, §13.14.420(D)1. Cost of abatement gross negligence in housekeeping billed to owner and recording of a lien or management practices) possibly on property per LMC §§13.14.420(A)9 requiring emergency spill response. & (D). • Ongoing discharges of pollutants to • Owner may file appeal contesting the storm drain system or to the costs LMC §13.14.450. environment. 0 Immediate cessation of any activities • Significant impact to the causing pollutants to enter the storm environment caused by violation water systems that present imminent requiring immediate abatement to danger to the public health, safety, protect. welfare, environment or that could • Emergency situation where the violate an NPDES permit per LMC property owner or other responsible §13.14.420(D)4. party is unavailable. • Failure to comply with the City Withholding Plans, • Building and Planning Department to building, planning, and/or Approvals & withhold authorization to proceed on construction requirements. Authorizations all projects until all construction and • Failure to comply with abatement post -construction measures have orders to lift a stop work order. LMC §13.14.420 been satisfactorily addressed. • The City will not lift a cessation of activities order until verification of mitigation has occurred. Rev. 6/20/16 C: I UserslpfarrisW ppDatalLocaAMicrosoffl Windowsl Temporary Internet Filesl Content. Outlook13013VF3Hl Storm Water Enforcement Response Plan-FINAL.doc Storm Water Enforcement Response Plan 5 TriggersNaf Rev. 6/20/16 C:IUserslpfarrislAppDatalLocallMicrosoRlWindowslTemporary Internet FileslContent.Outlookl3013VF3HIStorm Water Enforcement Response Plan-FINAL.doc Action . - Description • Relapse into non-compliance after Recidivism Require the implementation and successfully demonstrating Reduction ongoing use of Best Management compliance, abating a violation or Practices as part of each enforcement completing a compliance schedule. LMC §13.14.420 action. + Establish elements of a Stormwater Pollution Prevention Plan (SWPPP) at applicable businesses and require adoption and implementation of the plan as part of each enforcement action. ■ Conduct a minimum of two inspections during the year following the successful abatement or completion of a compliance schedule, to ensure that the use of Best Management Practices and / or adherence to the SWPPP is ongoing. • If a project is issued two Recidivism The City uses water quality threat consecutive Notice of Violations, or Reduction via levels that correspond to the project's a previously issued Notice of Elevated CGP "Risk Level". Violation remains uncorrected, the Inspection The City's initial storm water City will assign the project an Frequency compliance inspection frequency at elevated "Risk Level," thereby (Construction construction sites based on project's increasing inspection frequency as Projects) threat to water quality as set forth in set forth in LMC LMC §13.14.120(B)(3). §13.14.120(B)(3)(c). LMC §13.14.120 Frequency of inspections shall increase from the baseline level for projects which incur two consecutive violation or corrective notices, or a previously issued NOV remains uncorrected after the compliance deadline set by the City. For construction projects or industrial NPDES Permit Sites that are unable to demonstrate facilities subject to the State's Referrals that they have obtained applicable Construction General Permit (CGP) or IGP or CGP coverage will be referred Industrial General Permit (IGP): LMC §13.14.420 to the CVRWQCB within 30 days of ■ Non -filers (i.e., those facilities that making the non -filer determination. cannot demonstrate that they The City will refer ongoing violators to obtained permit coverage). the CVRWQCB for those still in non- • Ongoing violations, after compliance after the City's attempts to progressive enforcement efforts to achieve compliance through the use achieve compliance have been of progressive enforcement methods unsuccessful. have been unsuccessful. • City will issue at least two warning letters or notices of violation, and make at least two follow-up inspections, prior to referring violators to the CVRWQCB. Rev. 6/20/16 C:IUserslpfarrislAppDatalLocallMicrosoRlWindowslTemporary Internet FileslContent.Outlookl3013VF3HIStorm Water Enforcement Response Plan-FINAL.doc a 04 Storm Water Enforcement Response Plan 6 MV 2.4. ENFORCEMENT FLOW CHART Potential Minor Violation Violation I I Verbal/ Written Noticeof Notice of Violation/ Cease Stop Work Order/ Warnings Correction/ Notice and Desist Order/ NPDES Referrals of Violation Administrative Penalty Ono* Legal Action Re -inspect for compliance within 10 days or prior to forecast rain YES etam to Routin Inspection compliance within 10 days or prior to forecast rain 3. SERVICE OF NOTICES, AND ENFORCEMENT TRACKING 3.1. METHOD OF SERVICE The enforcement official, shall cause the NOV and/or administrative civil citation to be served on the person(s) owning or occupying the premises, or upon the person(s) responsible for or committing the violation. Service of the notice and order to abate may be made in the following manner: 1. By personal service; or 2. By registered or certified mail. 3.2 ENFORCEMENT TRACKING Implementation of the enforcement actions identified in this plan will be tracked electronically in the City's Storm Water Management database. Each enforcement action will be documented with the following information being recorded: 1. Name of owner/operator; Rev. 6/20/16 C: IUserslpfarrisOppDatalLocallMicrosoftlWindowMTemporary Internet FileslContent, Outtook13013VF3HIStorm Water Enforcement Response Plan-FINAL.doc Ak Storm Water Enforcement Response Plan 2. Location of construction project or industrial facility; 3. Property APN number; 4. Description of violation; 5. Required schedule for returning to compliance; 6. Description of enforcement response used, including escalated responses if repeat violations occur or violations are not resolved within the time specified in the enforcement action; 7. Accompanying documentation of enforcement response (e.g., notice of noncompliance, notice of violations, etc.); and 8. Any referral(s) to other city departments or outside agencies. 4. ASSESSMENT OF ADMINISTRATIVE PENALTIES 4.1. ASSESSMENT METHODOLOGY The stormwater management and discharge control ordinance authorizes the assessment of penalties to be derived per this Plan. Pursuant to LMC § 13.14.420(12)(C), the penalty amounts shall be derived as outlined in this Stormwater Enforcement Response Plan and in determining the amount of penalty to be assessed, consideration will be given to the following: i. The extent to which the owner or person responsible for the violation had knowledge or reasonably should have known that the action taken was a violation of this chapter; ii. The magnitude of the violation; iii. The extent to which the owner or person responsible for the violation derived a financial benefit from the violation; iv. Any prior history of related violations by the same person on the subject property or on other parcels within the city; and iv. Any corrective action, or lack thereof, taken by the owner or person responsible to eliminate the violations, and any other mitigating circumstances justifying a reduction of the amount of the penalties. To determine the amount of the penalties, the following formula will be used. Penalties noted below are separate from any applicable cost recovery. Administrative Penalty = V + (N*R) Where: V = First Violation Points N = Number of Prior Violations R = Repeat Violation Points Rev. 6/20/16 C:IUserslpfarrislAppDatalLocallMicrosoRlWindowslTemporary Internet FileslContenf Outlook13013VF3MStorm Water Enforcement Response Plan-FINAL.doc r r r Storm Water Enforcement Response Plan a 4 9 ADMTNTSTRATIVE PENALTY SCHEDULE Total Points Action 1 -2 Verbal/Notice of Correction 3-4 Written Notice of Violation 5 Administrative Penalty $100 g Administrative Penalty $200 7 Administrative Penalty $500 g Administrative Penalty $750 g Administrative Penalty $1,000 10 Administrative Penalty $1,500 11+ Administrative Penalty $2,000 Rev. 6/20/16 C:IUserslpfarrislAppDatalLocallMicrosoftlWindowslTemporary Internet FileslContent. OutlooM3013 VF3M Storm Water Enforcement Response Plan-FINAL.doc