Property owner or agent of a property owner who filed an
application for a stormwater authorization under a TPDES general permit
or an individual TPDES permit.
Employees or designees of the city manager for the City of
Celina has the authority to enforce this article and/or the TPDES
regulations.
Schedule of activities, prohibitions of practices, maintenance
procedures, structural controls, local ordinances, and other management
practices to prevent or reduce the discharge of pollutants. BMPs also
include treatment practices, operating procedures, and practices to
control runoff, spills or leaks, waste disposal, or drainage from
raw materials storage areas.
Any structure, either temporary or permanent, with walls
and a roof, designed to shelter a person, animal, or property, and
occupying more than 100 square feet of area.
The City of Celina, Texas.
Includes soil disturbance, including clearing, grading, excavating,
and other construction related activities (e.g., stockpiling of fill
material and demolition); and does not include routine maintenance
that is performed to maintain the original line and grade, hydraulic
capacity, or original purpose of the site (e.g., the routine grading
of existing dirt roads, asphalt overlays of existing roads, the routine
clearing of existing right-of-ways, and similar maintenance activities).
Regulated construction activity is defined in terms of small and large
construction activity.
Large construction activity.
Construction activity that results in land disturbance of
equal to or greater than five (5) acres of land. Large construction
activity also includes the disturbance of less than five (5) acres
of total land area that is part of a larger common plan of development
or sale if the larger common plan will ultimately disturb equal to
or greater than five acres of land.
Small construction activity.
Construction activity that results in land disturbances equal
to or greater than one (1) acre and less than five (5) acres of land.
Small construction activity also includes the disturbance of less
than one (1) acre of total land area that is part of a larger common
plan of development or sale if the larger common plan will ultimately
disturb equal to or greater than one (1) and less than five (5) acres
of land.
Curbs, gutters, manmade channels and ditches, drains, pipes,
and other constructed features designed or used for flood control
or to otherwise transport stormwater runoff.
The city manager or the city manager’s authorized designee
with authority to enforce this article and/or the TPDES regulations.
A grant of one or more of the property rights by the property
owner to or for the use by the public, a corporation or another person
or entity for the purpose of storm drainage conveyance.
Any item or agent (biological, chemical, physical) that has
the potential to cause harm to humans, animals, or the environment,
either by itself or through interaction with other factors.
Any manmade conveyance connecting an illicit discharge directly
to a municipal separate storm sewer.
Any discharge to a municipal separate storm sewer that is
not entirely composed of stormwater, except discharges pursuant to
a TPDES stormwater general permit or a separate authorization and
discharges resulting from emergency firefighting activities.
Any activity which changes the volume or discharge rate of
stormwater runoff from the land surface. This includes grading, digging,
cutting, scraping, or excavating of soil, placement of fill materials,
paving, construction, substantial removal of vegetation, or any activity
which bares soil or rock or involves the diversion or piping of any
natural or manmade watercourse.
A formal contract between a local government and a property
owner to guarantee long-term maintenance of stormwater management
practices.
Any discharge to the storm drain system that is not composed
entirely of stormwater.
Any individual, association, organization, partnership, firm,
corporation, or other entity recognized by law and acting as either
the owner or as the owner’s agent.
In accordance with the Texas Water Code, §26.001(13)
a pollutant includes the following: dredged spoil, solid waste, incinerator
residue, sewage, garbage, sewage sludge, filter backwash, munitions,
chemical wastes, biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand, cellar dirt, and industrial,
municipal, and agricultural waste discharged into any water in the
state.
Activities and operations performed after the notice of termination
for a development or redevelopment project has been filed and approved.
Any building, lot, parcel of land, or portion of land whether
improved or unimproved including adjacent sidewalks and parking strips.
Rainfall runoff, snow-melt runoff, and surface runoff and
drainage.
Structural or nonstructural measures to minimize stormwater
runoff to surface water in the state.
Any physical facility built to control stormwater runoff
in compliance with the existing design and construction standards
for public improvements as promulgated by the city.
The use of structural or nonstructural control practices/BMPs
designed to reduce stormwater pollutant runoff, discharge volumes,
peak flow discharge rates, and detrimental changes in stream temperature
that affect water quality.
A document that describes the Best Management Practices and
activities to be implemented by the permit holder to identify sources
of pollution or contamination at a site and actions to eliminate or
reduce pollutant discharges.
Lakes, bays, ponds, impounding reservoirs, springs, rivers,
streams, creeks, estuaries, wetlands, marshes, inlets, canals, the
Gulf of Mexico inside the territorial limits of the state (from the
mean high water mark (MHWM) out 10.36 miles into the Gulf), and all
other bodies of surface water, natural or artificial, inland or coastal,
fresh or salt, navigable or nonnavigable, and including the beds and
banks of all water-courses and bodies of surface water, that are wholly
or partially inside or bordering the state or subject to the jurisdiction
of the state; except that waters in treatment systems which are authorized
by state or federal law, regulation, or permit, and which are created
for the purpose of waste treatment are not considered to be water
in the state.
A permit issued by the TCEQ, under the authority of Texas
Water Code sections 26.027 or 26.040 that authorizes the discharge
of pollutants into or adjacent water in the state. The TPDES program
is administered under the authority delegated pursuant to 33 U.S.C.
section 1342(b).
Any direct or indirect nonstormwater discharge to the storm drain system except as exempted in section 13.10.004(b).
(Ordinance 2020-07 adopted 2/11/20)
Unless exempted, this article applies to discharges entering
the storm drain system within the jurisdictional limits of the city.
(Ordinance 2020-07 adopted 2/11/20)
(a)
The city shall administer, implement, and enforce the provisions
of this article. Any powers granted or duties imposed upon the city
manager of the city may be delegated by the city manager to the city
director of engineering or other persons or entities acting in the
beneficial interest of city for the implementation of this article.
(b)
Authorized individual(s) under this section shall have the authority
to enforce this article in its entirety and shall be designated as
a TPDES stormwater manager and/or inspector. Any person subject to
an industrial or construction TPDES stormwater discharge permit or
authorization shall comply with all provisions of the permit and may
be required by the city to have authorization to discharge stormwater
into the MS4.
(Ordinance 2020-07 adopted 2/11/20)
(a)
This article prohibits unauthorized discharges into the storm drain
system in accordance with TPDES phase II MS4 permit TXR040000 part
III section A.3.(a)(2)a. No person shall release discharges into the
municipal storm drain containing any pollutants that cause or contribute
to a violation of water quality standards, other than stormwater or
authorized nonstormwater discharges.
(b)
It is an affirmative defense to any enforcement action for violation of subsection (a) of this section that the discharge was composed entirely of one or more of the following categories of discharges:
(1)
Water line flushing (excluding discharges of hyperchlorinated water,
unless the water is first dechlorinated and discharges are not expected
to adversely affect aquatic life);
(2)
Runoff or return flow from landscape irrigation, lawn irrigation,
and other irrigation utilizing potable water, groundwater, or surface
water sources;
(3)
Discharges from potable water sources that do not violate Texas Surface
Water Quality Standards;
(4)
Diverted stream flows;
(5)
Rising ground waters and springs;
(6)
Uncontaminated ground water infiltration;
(7)
Uncontaminated pumped ground water;
(8)
Foundation and footing drains;
(9)
Air-conditioning condensation;
(10)
Water from crawl space pumps;
(11)
Individual residential vehicle washing;
(12)
Flows from wetlands and riparian habitats;
(13)
Dechlorinated swimming pool discharges that do not violate Texas
Surface Water Quality Standards;
(14)
Street wash water excluding street sweeper waste water;
(15)
Discharges or flows from emergency fire fighting activities (fire
fighting activities do not include washing of trucks, run-off water
from training activities, test water from fire suppression systems,
and similar activities);
(16)
Other allowable nonstormwater discharges listed in 40 CFR §
122.26(d)(2)(iv)(B)(1);
(17)
Nonstormwater discharges that are specifically listed in the TPDES
multi sector general permit (MSGP) TXR050000 or the TPDES construction
general permit (CGP) TXR150000;
(18)
Discharges that are authorized by a TPDES or NPDES permit or that
are not required to be permitted; and
(19)
Other similar occasional incidental nonstormwater discharges such
as spray park water, unless the TCEQ develops permits or regulations
addressing these discharges.
(c)
No affirmative defense shall be available under subsection (b) of this section if the discharge or flow in question has been determined by the director to be a source of pollutant(s) to the water of the United States or to the MS4, written notice of such determination has been provided to the discharger, and the discharge has occurred more than 14 calendar days beyond such notice.
(Ordinance 2020-07 adopted 2/11/20)
(a)
The specific prohibitions and requirements in this section are not necessarily inclusive of all the discharges prohibited by the general prohibition in section 13.10.004.
(b)
No person shall introduce or cause to be introduced into the MS4
any discharge that causes or contributes to causing the city to violate
a water quality standard, the city’s NPDES permit, or any state-issued
discharge permit for discharges from its MS4.
(c)
No person shall dump, spill, leak, pump, pour, emit, empty, discharge,
leach, dispose, or otherwise introduce or cause, allow or permit to
be introduced any of the following substances into the MS4:
(1)
Any industrial waste;
(2)
Any used motor oil;
(3)
Any hazardous waste, including hazardous household waste;
(4)
Any domestic sewage or septic tank waste, grease trap waste, or grit
trap waste;
(5)
Any release from a petroleum storage tank (PST), or any leachate
or runoff from soil contaminated by a leaking PST, or any discharge
of pumped, confined, or treated wastewater from the remediation of
any such PST release, unless the discharge satisfies all of the following
criteria:
(d)
No person shall intentionally dump, spill, leak, pump, pour, emit,
empty, discharge, leach, dispose, or otherwise introduce or cause
any of the following substances into the MS4 and all persons shall
to the maximum extent practicable under prevailing circumstances employ
control measures to prevent the following substances from entering
into the MS4:
(1)
Any motor oil, antifreeze, or any other motor vehicle fluids;
(2)
Any garbage, rubbish or yard waste, leaks from dumpsters;
(3)
Any wastewater from a commercial carwash facility, from any vehicle
washing, cleaning, or maintenance at any new or used automobile or
other vehicle dealership, rental agency, body shop, repair shop, or
maintenance facility; or from any washing, cleaning, or maintenance
of any business or commercial or public service vehicle, including
a truck, bus, or heavy equipment, by a business or public entity;
(4)
Any wastewater from the washing, cleaning, de-icing, or other maintenance
of aircraft;
(5)
Any wastewater from a commercial mobile power washer or from the
washing or other cleaning of a building exterior that contains any
soap, detergent, degreaser, solvent, or any other harmful cleaning
substance;
(6)
Any wastewater from floor, rug, or carpet cleaning;
(7)
Any wastewater from the wash-down of other cleaning of pavement that
contains any harmful quantity of soap, detergent, solvent, degreaser,
emulsifier, or any other harmful cleaning substance; or any wastewater
from the wash-down or other cleaning of any pavement where any spill,
leak, or other release of oil, motor fuel, or other petroleum or hazardous
substance has occurred, unless all harmful quantities of such released
material have been previously removed;
(8)
Any effluent from a cooling tower, condenser, compressor, emissions
scrubber, emissions filter, or the blow down from a boiler;
(9)
Any ready-mixed concrete, mortar, ceramic, or asphalt base material,
or hydro mulch material, or from the cleaning of commercial vehicles
or equipment containing, or used in transporting or applying such
material;
(10)
Any runoff or wash-down water from any animal pen, kennel, or foul
or livestock containment area;
(11)
Any filter backwash from a swimming pool, fountain or spa;
(12)
Any swimming pool water containing any harmful quantity of chlorine,
muriatic acid or other chemical used in the treatment or disinfection
of the swimming pool water or in pool cleaning;
(13)
Any discharge from water line disinfection by super chlorination
or other means if it contains any harmful quantity of chlorine or
any other chemical used in line disinfection;
(14)
Any fire protection water containing oil or hazardous substances
or materials that the fire code in this code requires to be contained
and treated prior to discharge, unless treatment adequate to remove
pollutants occurs prior to discharge. (This prohibition does not apply
to discharges or flow from firefighting by the fire department);
(15)
Any water from a water curtain in a spray room used for painting
vehicles or equipment;
(16)
Any contaminated runoff from a vehicle wrecking yard;
(17)
Any substance or material that will damage, block or clog the MS4.
(e)
No person shall introduce or cause to be introduced into the MS4
any harmful quantity of sediment, silt, earth, soil, or other material
associated with clearing, grading, excavation or other construction
activities, or associated with landfilling or other placement or disposal
of soil, rock, or other earth materials, in excess of what could be
retained on-site or captured by employing sediment and erosion control
measures to the maximum extent practicable under prevailing circumstances.
(f)
No person shall connect a line conveying sanitary sewage, domestic
or industrial, to the MS4, or allow such a connection to continue.
(g)
No person shall cause or allow any pavement wash water from a service
station to be discharged into the MS4 unless such wash water has passed
through a properly functioning and maintained, grease, oil, and sand
interceptor before discharge into the MS4;
(h)
Pesticides, herbicides and fertilizers. No person shall dump, spill,
leak, pump, pour, emit, empty, discharge, leach, dispose, or otherwise
introduce or cause. Allow, or permit to be introduced harmful levels
of pesticides, herbicides and fertilizers into the MS4. All persons
shall to the maximum extent practicable under prevailing circumstances
employ control measures to minimize pesticides, herbicides and fertilizers
from entering the MS4. This includes the following:
(Ordinance 2020-07 adopted 2/11/20)
The city has the authority to respond to, contain, and control
the discharge of a spill and prohibit dumping or disposal of material
other than stormwater and authorized nonstormwater discharges into
the small MS4 in accordance with TPDES phase II MS4 permit TXR040000
part III section A.3.(a)(2)b. Any person in violation of this article
may risk having their discharge authorization to the MS4 terminated.
The director will notify the violator of the proposed termination
of its authorization.
(Ordinance 2020-07 adopted 2/11/20)
(a)
Permit application.
The city shall enforce compliance
with the permittee’s ordinances, permits, contracts, or orders
in accordance with TPDES phase II MS4 permit TXR040000 part III section
A.3.(a)(2)c. Unless specifically excluded by this article, the landowner
or operator seeking a permit for land disturbance activity shall submit
to the city a permit application on a form provided for that purpose
and available at https://www.celina-tx.gov/1066/permits. The permit application
must be accompanied by the following:
(b)
Application review fees.
The land development application
fee shall be established by the city, following the adoption of this
article and from time to time, established by ordinance a permit fee
schedule for fees which shall be collected at the time of development
applications, and applicable site review processes.
(c)
Application procedure.
(1)
Applications for land disturbance activity permits must be filed
with the director or designee on any regular business day.
(2)
Permit applications shall include an electronic copy of the stormwater
management plan, land development plans (e.g. grading plans) maintenance
agreement, and any required review fees.
(3)
Within ten (10) business days of receipt of a complete permit application,
the director shall inform the applicant whether the application, stormwater
management plan, and maintenance agreement are approved or disapproved.
(4)
If the permit application, final stormwater management plan, and
maintenance agreement are approved by the director, all appropriate
land disturbance activity permits may be issued.
(Ordinance 2020-07 adopted 2/11/20)
(a)
The permittee shall establish plans for installation, implementation,
and maintenance of control measures in accordance with TPDES phase
II MS4 permit TXR040000 part III section A.3.(a)(2)d. In furtherance
of this requirement, the permittee shall provide an operation and
maintenance plan for any permanent stormwater facilities. The operation
and maintenance plan shall provide for the following:
(1)
Drainage easement.
Prior to final acceptance of any
permitted land development project, private or public, that has a
stormwater management facility the applicant of the site must implement
a drainage easement that binds all subsequent owners of land served
by the stormwater management facility. The easement shall allow the
city or their contractor/agent access to the facility to periodically
inspect if the facility is maintained in proper working condition
and meets design standards and other provisions established by this
article. The easement shall be recorded in the land records.
(2)
Maintenance agreement.
The applicant of the site must
develop a maintenance agreement articulating a schedule of maintenance
activities and plans for periodic inspections to assess the proper
functioning of the stormwater management facility. The maintenance
agreement shall be approved by city and recorded into the land record
prior to final plan acceptance. A legally binding covenant will identify
the responsible parties to maintain stormwater control practices.
(3)
Requirements for annual self-inspections.
All stormwater
management facilities must undergo, at minimum, an annual self-inspection
to document maintenance and repair needs and to verify compliance
with the requirements of this article. The inspections must be provided
in writing to the director and maintained in a manner that allows
local inspectors the ability to review the results of inspections
in conjunction with a site compliance review. Maintenance and repair
shall include: removal of silt, litter, and other debris from all
catch basins, inlets and drainage pipes; cutting grass and vegetation
removal; and replacement of landscape vegetation. Maintenance needs
must be addressed in a timely manner as determined by the director
or their designee.
(4)
Failure to maintain practices.
If the stormwater management
facility becomes a danger to public safety or public health, the city
shall notify the party responsible for maintenance of the stormwater
management facility in writing. Upon receipt of that notice, the responsible
person shall have five (5) days to meet maintenance and repair requirements.
If the owner of the facility fails to comply with the requirements
of the maintenance covenant, the city, after reasonable notice, may
perform all necessary work to bring the facility into compliance.
All cost associated with necessary work performed by the city will
be charged to the property owner for reimbursement within thirty (30)
calendar days upon receipt.
(b)
Operations and maintenance plan requirements.
(1)
The operations and maintenance plan must clearly identify the person(s)
responsible for operation and maintenance of temporary and permanent
BMPs to ensure proper and continuous function. The operations and
maintenance plan and records of all maintenance tasks as performed
shall be retained on site. The operations and maintenance plan shall
abide by the city applicable guidelines.
(A)
Identification of person(s) or position title responsible for all
tasks in the plan: Adherence to the operations and maintenance plan
is the responsibility of the individual property owner or of the homeowner’s
association (HOA) if the facility is part of a subdivision.
(B)
Inspection requirements:
(i)
Self-inspection.
The maintenance plan shall require
self-inspection of the stormwater management facilities, according
to the inspection form located in refer to location of inspection
forms on city website. Self-inspection forms must be completed and
submitted to the director or designee on an annual basis.
(ii)
City inspection.
The city reserves the right to
inspect all stormwater facilities for compliance with maintenance
guidelines on an as-needed basis.
(C)
Maintenance requirements, at a minimum:
(iii)
Disposal of sediments; and
(iv)
All specifications and maintenance requirements of proprietary
devices.
(v)
Identification of funding source for maintenance and repairs;
(vi)
Execution of maintenance easements dedicated to the city to
allow for safe access for inspections and maintenance; and
(vii)
Estimated lifespan of permanent BMPs and appropriate replacement
schedule.
(2)
Activities outlined in the operations and maintenance plan shall
adhere to all design criteria and other policies regarding the operation
and maintenance of stormwater facilities for the city.
(c)
Filing of operations and maintenance plan.
(1)
All permanent BMPs, including the operations and maintenance plan
and the locations of any required maintenance easements, are to be
submitted with the site plan for approval by city. The operations
and maintenance plan and execution of maintenance easements must be
completed and approved prior to the final acceptance of the project.
(2)
Once approved, the operations and maintenance plan, along with any
maintenance easements, must be filed in the land records of the county
in which the property is located. The operations and maintenance plan
is to be permanently linked to the deed of the land, regardless of
changes in ownership.
(3)
The owner of the property holds the ultimate responsibility for ensuring
that this plan is properly filed and followed throughout the lifespan
of the permanent BMPs.
(d)
Transfer of ownership.
Cleaning and repair of permanent
BMPs must be completed before transfer of ownership.
(e)
Inspection violations.
(1)
If the owner fails to submit completed inspection forms to the director
or designee within the time frame specified for the property, the
city will issue a letter requesting that the inspections be completed
within thirty (30) days from the postmarked date.
(f)
Maintenance violations.
If city inspection personnel
discover malfunctioning or improperly maintained stormwater facilities,
or facilities that have become a danger to public safety, the owner
of the property will receive a notice detailing the violation. The
notice of violation shall contain:
(1)
The name and address of the owner;
(2)
The address (when available) or description of the structure or land
upon which the violation is occurring;
(3)
A statement specifying the nature of the violation;
(4)
A description of the remedial measures necessary to bring the facility
into compliance with the city’s stormwater facility BMPs;
(5)
A statement of the penalties that may be assessed according to this
article; and [sic]
(Ordinance 2020-07 adopted 2/11/20)
The owner or operator of a commercial or industrial establishment
shall submit a copy of the NOI and stormwater pollution prevention
plans for regulated construction sites, new or redeveloped land, and
industrial and commercial facilities in accordance with TPDES phase
II MS4 permit TXR040000 part III section A.3.(a)(2)e to assess compliance
with this permit. The permittee shall include the following information
in the NOI and stormwater pollution prevention plan as specified in
engineering design standards or any applicable city standard.
(Ordinance 2020-07 adopted 2/11/20)
The city has the authority to enter and inspect private property
including facilities, equipment, practices, or operations related
to stormwater discharges to the small MS4 in accordance with TPDES
phase II MS4 permit TXR040000 part III section A.3.(a)(2)f.
(1)
Facility operators shall allow the city access to all parts of the
premises for the purposes of inspection, sampling, examination and
copying of records.
(2)
The city shall have the right to monitor and/or sample the facility’s
stormwater discharge.
(Ordinance 2020-07 adopted 2/11/20)
The city has the authority to respond to noncompliance with
BMPs required by the small MS4 in accordance with TPDES phase II MS4
permit TXR040000 part III section A.3.(a)(2)g. The city has established
engineering design standards for activity, operation, of a facility
which conveys and may facilitate pollution of stormwater, the storm
drain system, or surface water in the state. The owner or operator
of a commercial or industrial establishment shall implement, at their
own expense, appropriate pollution control measures through the use
of structural and non structural BMPs to prevent and reduce discharge
of pollutants into the municipal storm drain system or watercourses.
The BMPs must be identified in the stormwater pollution prevention
plan (SWP3) to satisfy requirements of the TPDES permit.
(Ordinance 2020-07 adopted 2/11/20)
(a)
If the city finds a person in violation with this article, the authorized
enforcement agency may order compliance by written notice of violation
to the responsible person. Such notice may require:
(1)
Monitoring, analysis, and reporting.
(2)
Elimination of illicit connections or discharges.
(3)
Termination of existing discharges or practices and/or operations
in violation of this article.
(4)
Abatement and/or remediation of stormwater pollution or contamination
hazards.
(5)
Payment of fines to cover administrative and remediation costs.
(6)
Implementation of pollution control measures or treatment BMPs.
(b)
If the property must be remediated, the notice must establish a deadline
to restore the site. The notice must further advise that, if the violator
fails to remediate the site by the deadline, a designated governmental
agency or contractor will restore the site at the expense of the violator.
A violation of any provision of this article, or any order issued
hereunder, is hereby declared a public nuisance and shall be corrected
or abated as directed by the director. Any person(s) creating a public
nuisance shall be subject to the provisions of the city governing
such nuisances, including reimbursing the city for any costs incurred
in removing, abating, or remedying said nuisance.
(1)
Administrative enforcement remedies.
(A)
Warning notice.
When the director finds that any
person has violated, or continues to violate, any provision of this
article, or any order issued hereunder, the director may serve upon
that person a written warning notice, specifying the particular violation
believed to have occurred and requesting the discharger to immediately
investigate the matter and to seek a resolution whereby any offending
discharge will cease. Investigation and/or resolution of the matter
in response to the warning notice in no way relieves the alleged violator
of liability for any violations occurring before or after receipt
of the warning notice. Nothing in this subsection shall limit the
authority of the director to take any action, including emergency
action or any other enforcement action, without first issuing a warning
notice.
(B)
Notification of violation.
When the director finds
that any person has violated, or continues to violate, any provision
of this article, or any order issued hereunder, the director may serve
upon that person a written notice of violation. Within ten days of
the receipt of this notice, an explanation of the violation and a
plan for the satisfactory correction and prevention of reoccurrence
thereof, to include specific required actions, shall be submitted
by the alleged violator to the director. If the alleged violator denies
that any violation occurred and/or contends that no corrective action
is necessary, an explanation of the basis of any such denial or contention
shall be submitted to the director within ten days of receipt of the
notice. Submission of an explanation and/or plan in no way relieves
the alleged violator of liability for any violations occurring before
or after receipt of the notice of violation. Nothing in this section
shall limit the authority of the director to take any action, including
emergency action or any other enforcement action, without first issuing
a notice of violation.
(C)
Consent orders.
The director may enter into consent
orders, assurances of voluntary compliance, or other similar documents
establishing an agreement with any person responsible for noncompliance
with any provision in this article or any order issued hereunder.
Such documents may include specific action to be taken by the person
to correct the noncompliance within a time period specified by the
document.
(D)
Show cause hearing.
The director may order any
person who has violated, or continues to violate, any provision of
this article, or any order issued hereunder, to appear before the
director and show cause why a proposed enforcement action should not
be taken. Notice shall be served on the alleged violator specifying
the time and place for the hearing, the proposed enforcement action,
the reasons for such action, and a request that the alleged violator
show cause why the proposed enforcement action should not be taken.
The notice of the hearing shall be served personally or by registered
or certified mail (return receipt requested) at least ten days prior
to the hearing. Such notice may be served on any authorized representative
of the alleged violator. The hearing shall be conducted pursuant to
the rights and procedures specified in this article. A show cause
hearing shall not be a bar against, or prerequisite for, taking any
other action against the alleged violator.
(E)
Compliance orders.
When the director finds that
any person has violated, or continues to violate, any provision of
this article, or any order issued hereunder, the director may issue
an order to the violator directing that the violator come into compliance
within a specified time limit. Compliance orders also may contain
other requirements to address the noncompliance, including additional
self-monitoring, and management practices designed to minimize the
amount of pollutants discharged to the MS4 and waters of the United
States. A compliance order may not extend the deadline for compliance
established by a state or federal standard or requirement, nor does
a compliance order relieve the person of liability for any violation,
including any continuing violation. Issuance of a compliance order
shall not be a bar against, or a prerequisite for, taking any other
action against the violator.
(F)
Remediation, abatement and restoration orders.
When the director finds that a person has violated, or continues
to violate, any provision of this article, or any order issued hereunder,
and that such violation has adversely affected the MS4, the waters
of the United States or any other aspect of the environment, the director
may issue an order to the violator directing him/her to undertake
and implement any appropriate action to remediate and/or abate any
adverse effects of the violation upon the MS4, the waters of the United
States, or any other aspect of the environment, and/or to restore
any part of the MS4, the waters of the United States, or any other
aspect of the environment that has been harmed. Such remedial, abatement,
and restoration action may include, but not be limited to: Monitoring,
assessment, and evaluation of the adverse effects and determination
of the appropriate remedial, abatement, and/or restoration action;
confinement, removal, cleanup, treatment and disposal of any discharged
or released pollution or contamination; prevention, minimization,
and/or mitigation of any damage to the public health, welfare, or
the environment that may result from the violation; restoration or
replacement of city property or natural resources damaged by the violation.
The order may direct that the remediation, abatement, and/or restoration
be accomplished on a specified compliance schedule and/or be completed
within a specified period of time. An order issued under this subsection
does not relieve the violator of liability for any violation, including
any continuing violation. Issuance of an order under this subsection
shall not be a bar against, or a prerequisite for, taking any other
action against any responsible party.
(G)
Emergency cease and desist orders.
When the director
finds that any person has violated, or continues to violate, any provision
of this article, or any order issued hereunder, or that the person’s
past violations are likely to recur, and that the person’s violation(s)
have caused or contributed to an actual or threatened discharge to
the MS4 or waters of the United States which reasonably appears to
present an imminent or substantial endangerment to the health or welfare
of persons or to the environment, the director may issue an order
to the violator directing it immediately to cease and desist all such
violations and directing the violator to:
(H)
Any person notified of an emergency order directed to it under this
subsection shall immediately comply and stop or eliminate its endangering
discharge. In the event of a discharger’s failure to immediately
comply voluntarily with the emergency order, the director may take
such steps as deemed necessary to prevent or minimize harm to the
MS4 or waters of the United States, and/or endangerment to persons
or to the environment, including immediate termination of a facility’s
water supply, sewer connection, or other municipal utility services.
The director may allow the person to recommence its discharge when
it has demonstrated to the satisfaction of the director that the period
of endangerment has passed, unless further termination proceedings
are initiated against the discharger under this section. A person
that is responsible, in whole or in part, for any discharge presenting
imminent endangerment shall submit a detailed written statement, describing
the causes of the harmful discharge and the measures taken to prevent
any future occurrence, to the director within two days of receipt
of the emergency order. Issuance of an emergency cease and desist
order shall not be a bar against, or a prerequisite for, taking any
other action against the violator.
(I)
“Red tags”.
Whenever the director
finds that any operator of a construction site has violated, or continues
to violate, any provision of this article, or any order issued thereunder,
the director may order that a “red tag” be issued to the
operator, posted at the construction site, and distributed to all
city departments and divisions whose decisions affect any activity
at the site. Unless express written exception is made by the director,
the “red tag” shall prohibit any further construction
activity at the site and shall bar any further inspection or approval
by the city associated with a building permit, grading permit, subdivision
plat approval, site development plan approval, or any other city approval
necessary to commence or continue construction or to assume occupancy
at the site. Issuance of a “red tag” order shall not be
a bar against, or a prerequisite for, taking any other action against
the violator
(2)
Right to reconsideration, hearing and appeal.
(A)
Reconsideration and hearing.
(i)
Any person subject to a compliance order under, a remediation,
abatement, or restoration order, an emergency cease and desist order,
or a red tag order under this article may petition the director to
reconsider the basis for his/her order within 30 days of the affected
person’s notice of issuance of such an order.
(ii)
Failure to submit a timely written petition for reconsideration
shall be deemed to be a waiver of any further right to administrative
reconsideration or review of the order.
(iii)
In its petition, the petitioning party must indicate the provisions
of the order objected to, the reasons for the objection(s), any facts
that are contested, the evidence that supports the petitioner’s
view of the facts, any alternative terms of an order that the petitioner
would accept, and whether the petitioning party requests a hearing
on its petition.
(iv)
The effect of any compliance order, remediation, abatement,
or restoration order, and any red tag order shall be stayed pending
the director’s reconsideration of the petition, and any hearing
thereon, unless the director expressly makes a written determination
to the contrary. The effectiveness of any emergency cease and desist
order shall not be stayed pending the director’s reconsideration,
or any hearing thereon, unless the director expressly and in writing
stays his/her emergency order.
(v)
Within ten days of the submittal of a petition for reconsideration,
the director shall either: (1) grant the petition and withdraw or
modify the order accordingly; (2) deny the petition, without hearing
if no material issue of fact is raised; or (3) if a hearing has been
requested and a material issue of fact has been raised, set a hearing
on the petition.
(vi)
Written notice of any hearing set by the director shall be served
on the petitioning party personally or by registered or certified
mail (return receipt requested) at least five (5) days prior to the
hearing. Such notice may be served on any authorized representative
of the petitioning party.
(vii)
The director may conduct the hearing and take evidence, or may
designate any employee of the city or any specially-designated attorney
or engineer to:
a.
Issue in the name of the city notices of hearing requesting
the attendance and testimony of witnesses and the production of evidence
relevant to any matter involved in the hearing;
b.
Take evidence;
c.
Transmit a report of the evidence and hearing, including transcripts
and other evidence, together with recommendations to the director
for action thereon.
(viii)
At any hearing held pursuant to this subsection,
testimony taken shall be under oath and recorded. Any party is entitled
to present his/her case or defense by oral or documentary evidence
and to conduct such cross-examination as may be required for a full
and true disclosure of the facts. A transcript will be made available
to any party to the hearing upon payment of the usual charges thereof.
(ix)
After the director has reviewed the evidence, he/she shall either:
(1) grant the petition; (2) deny the petition; or (3) grant the petition
in part and deny it in part. The director may modify his/her order
as is appropriate based upon the evidence and arguments presented
at the hearing and his/her action on the petition. Further orders
and directives as are necessary and appropriate may be issued.
(3)
Appeal.
(A)
Any person whose petition for reconsideration by the director has
not been granted in its entirety and who remains adversely affected
by the director’s order, or who is subject to an order of the
director issued following a show cause hearing, may appeal the action
of the director to the city manager by filing a written appeal with
the city manager within ten days of the person’s notice of the
director’s adverse action on the petition for reconsideration,
or within ten days of the person’s notice of the issuance of
the order following the show cause hearing, as the case may be.
(B)
Failure to submit a timely written appeal to the city manager shall
be deemed to be a waiver of further administrative review.
(C)
In its written appeal to the city manager, the appealing party shall
indicate the particular provisions of the order objected to, the particular
determinations of the director that are contested, the reasons that
the director’s order and/or determinations are contested, and
any alternative order that the appealing party would accept.
(D)
The effect of the director’s order, as issued or modified,
shall not be stayed pending the appeal to the city manager, unless
the city manager expressly so states.
(E)
Within 30 days of the submittal of a written appeal to the city manager,
the city manager shall hear and consider the appeal. The appellant
shall be notified at least three days in advance of the date and time
of the city manager’s consideration of the appeal.
(F)
The appellant shall have the right to appear before the city manager
to present oral and written statements in support of his/her appeal.
The city manager may set time limits and/or other necessary restrictions
to facilitate the hearing of the appeal. If the city manager wishes
to consider testimony of witnesses or other evidence beyond that in
the record of any hearing before the director, the city manager may
remand the matter to the director for the taking of additional testimony
or other evidence.
(G)
Upon consideration of any written and oral statements made to the
city manager, as well as the record made before the director, the
city manager shall act on the appeal by affirming, vacating, or modifying
the order of the director, and/or by remanding the matter to the director
for further action.
(H)
Following final action by the city manager on the appeal, any adversely
affected party may challenge such action by the city manager in an
appropriate court of competent jurisdiction.
(4)
Civil remedies.
(A)
Whenever it appears that a person has violated, or continues to violate,
any provision of this article that relates to:
(i)
The preservation of public safety, relating to the materials
or methods used in construction of any structure or improvement of
real property;
(ii)
The preservation of public health or to the fire safety of a
building or other structure or improvement;
(iii)
The establishment of criteria for land subdivision or construction
of buildings, including street design;
(iv)
Dangerously damaged or deteriorated structures or improvements;
(v)
Conditions caused by accumulations of refuse, vegetation, or
other matter that creates breeding and living places for insects and
rodents; or
(vi)
Point source effluent limitations or the discharge of a pollutant,
other than from a nonpoint source, into the MS4, the city may take
any action as described herein.
(B)
The city may invoke sections 54.011–54.017 of the Texas Local
Government Code, as amended, and petition the State district court
or the county court at law of Collin or Denton County, as applicable,
through the city attorney, for either the injunctive relief specified
within this section or the civil penalties specified in this section
as shown below, or both the specified injunctive relief and civil
penalties.
(i)
Pursuant to section 54.016 of the Texas Local Government Code,
as amended, the city may obtain against the owner or the operator
of a facility a temporary or permanent injunction, as appropriate,
that:
(ii)
Pursuant to section 54.017 of the Texas Local Government Code,
as amended, the city may recover a civil penalty of not more than
one thousand dollars ($1,000.00) per day for each violation of any
provision of this article that relates to any matter specified in
this sections, and a civil penalty of not more than five thousand
($5,000.00) per day for each violation of any provision of this article
that relates to any matter specified in this article above, if the
city proves that:
(5)
Criminal penalties.
(A)
Any person, who has violated any provision of this article, or any
order issued hereunder, shall be strictly liable for such violation
regardless of the presence or absence of a culpable mental state,
except as expressly provided herein, and shall, upon conviction, be
subject to a fine of not more than two thousand dollars ($2,000.00)
per violation, per day, or any greater fine authorized by State statute.
(B)
Any person who has knowingly made any false statement, representation,
or certification in any application, record, report, plan, or other
documentation filed, or required to be maintained, pursuant to this
article, or any order issued hereunder, or who has falsified, tampered
with, or knowingly rendered inaccurate any monitoring device or method
required under this article shall, upon conviction, be subject to
a fine of not more than two thousand dollars ($2,000.00) per violation,
per day, or any greater fine authorized by State statute.
(C)
In determining the amount of any fine imposed hereunder, the court
shall take into account all relevant circumstances, including, but
not limited to, the extent of harm caused by the violation, the magnitude
and duration of the violation, any economic benefit gained through
the violation, corrective actions by the violator, the compliance
history of the violator, the knowledge, intent, negligence, or other
state of mind of the violator, and any other factor as justice requires.
(D)
Civil suit under the Texas Water Code.
Whenever it appears that a violation or threat of violation of any provision of section 26.121 of the Texas Water Code, as amended, or any rule, permit, or order of the Texas Water Commission, has occurred or is occurring within the jurisdiction of the city, the city, in the same manner as the Texas Water Commission, may have a suit instituted in a state district court through its city attorney for the injunctive relief or civil penalties or both authorized in subsection (a) of section 26.123 of the Texas Water Code, as amended, against the person who committed or is committing or threatening to commit the violation. This power is exercised pursuant to section 26.124 of the Texas Water Code, as amended. In any suit brought by the city under this section, the Texas Water Commission is a necessary and indispensable party.
(E)
Remedies nonexclusive.
The remedies provided for
in this article are not exclusive of any other remedies that the city
may have under state or federal law or other city ordinances. The
city may take any, all, or any combination of these actions against
a violator. The city is empowered to take more than one enforcement
action against any violator. These actions may be taken concurrently.
(Ordinance 2020-07 adopted 2/11/20)
