The following abbreviations when used in this division shall
have the designated meanings:
|
BMP
|
Best management practices
|
|
BTEX
|
Benzene, toluene, ethylbenzene, and xylene
|
|
CFR
|
Code of Federal Regulations
|
|
EPA
|
U.S. Environmental Protection Agency
|
|
HHW
|
Hazardous household waste
|
|
mg/1
|
Milligrams per liter
|
|
MS4
|
Municipal separate storm sewer system
|
|
NOI
|
Notice of intent
|
|
NOT
|
Notice of termination
|
|
ppb
|
Parts per billion
|
|
PST
|
Petroleum storage tank
|
|
RLA
|
Registered landscape architect
|
|
RPE
|
Registered professional engineer
|
|
RQ
|
Reportable quantity
|
|
SWPPP
|
Stormwater pollution prevention plan
|
|
TPDES
|
Texas Pollutant Discharge of Elimination System
|
|
TPH
|
Total petroleum hydrocarbons
|
|
USC
|
United States Code
|
(Ordinance 2012-1-3B adopted 1/3/12)
Unless a provision explicitly states otherwise, the following
terms and phrases, as used in this division, shall have the meanings
hereinafter designated.
Any stormwater runoff from orchards, cultivated crops, pastures,
range lands, and other nonpoint source agricultural activities, but
not discharges from concentrated animal feeding operations as defined
in 40 CFR, section 122.23 or discharges from concentrated aquatic
animal production facilities as defined in 40 CFR, section 122.24.
Schedules of activities, prohibitions of practices, maintenance
procedures, and other management practices to prevent or reduce the
pollution of waters of the United States. 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.
The rainfall runoff from or through any coal storage pile.
The disturbance of soils associated with clearing, grading,
or excavating activities or other construction activities.
Pertaining to any business, trade, industry, or other activity
engaged in for profit.
Any addition or introduction of any pollutant, stormwater,
or any other substance whatsoever into the municipal separate storm
sewer system (MS4) or into waters of the United States.
Any person who causes, allows, permits, or is otherwise responsible
for, a discharge, including, without limitation, any operator of a
construction site or industrial facility.
Human excrement, gray water (from home clothes washing, bathing,
showers, dishwashing, recreational vehicles and food preparation),
other wastewater from household drains, and waterborne waste normally
discharged from the sanitary conveniences of dwellings (including
apartment houses and hotels), office buildings, factories, and institutions,
that is free from industrial waste.
The United States Environmental Protection Agency, the regional
office thereof, any federal department, agency, or commission that
may succeed to the authority of the EPA, and any duly authorized official
of the EPA or such successor agency.
Any substance listed in the appendices to 40 CFR part 355,
Emergency Planning and Notification.
Any building, structure, installation, process, or activity
from which there is or may be a discharge of a pollutant.
A solid or nonsolid substance or compound that contains an
essential plant nutrient element in a form available to plants and
is used primarily for its essential plant nutrient element content
in promoting or stimulating growth of a plant or improving the quality
of a crop, or a mixture of two or more fertilizers. The term does
not include the excreta of an animal, plant remains, or a mixture
of those substances, for which no claim of essential plant nutrients
is made.
The status when all soil disturbing activities at a site
have been completed, and a uniform perennial vegetative cover with
a density of 70% of the cover for unpaved areas and areas not covered
by permanent structures has been established, or equivalent permanent
stabilization measures (such as the use of riprap, gabions, or geotextiles)
have been employed.
The fire department of the town or any duly authorized representative
thereof.
Any water, and any substances or materials contained therein,
used by any person other than the fire department to control or extinguish
a fire.
Putrescible animal and vegetable waste materials from the
handling, preparation, cooking, or consumption of food, including
waste materials from markets, storage facilities, and the handling
and sale of produce and other food products.
The alteration of the physical, thermal, chemical, or biological
quality of, or the contamination of, any water in the state 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.
Any material generated in a household (including single and
multiple residences, hotels and motels, bunk houses, ranger stations,
crew quarters, campgrounds, picnic grounds, and day use recreational
areas) by a consumer which, except for the exclusion provided in 40
CFR, section 261.4(b)(1), would be classified as a hazardous waste
under 40 CFR part 261.
Any substance listed in table 302.4 of 40 CFR part 302.
Any substance identified or listed as a hazardous waste by
the EPA pursuant to 40 CFR part 261.
All contiguous land, and structures, other appurtenances
and improvements on the land, used for the treatment, disposal, or
recovery of hazardous waste.
A substance or mixture of substances used to destroy a plant
or to inhibit plant growth.
Any waterborne liquid or solid substance that results from
any process of industry, manufacturing, mining, production, trade,
or business.
Any vehicle crankcase oil, antifreeze, transmission fluid,
brake fluid, differential lubricant, gasoline, diesel fuel, gasoline/alcohol
blend, and any other fluid used in a motor vehicle.
An area of land or an excavation in which municipal solid
waste is placed for permanent disposal, and which is not a land treatment
facility, a surface impoundment, an injection well, or a pile (as
these terms are defined in regulations promulgated by the Texas Natural
Resource Conservation Commission).
The system of conveyances (including roads with drainage
systems, municipal streets, catchbasins, curbs, gutters, ditches,
manmade channels, or storm drains) owned and operated by the town
and designed or used for collecting or conveying stormwater, and which
is not used for collecting or conveying sewage.
Solid waste resulting from or incidental to municipal, community,
commercial, institutional, or recreational activities, and includes
garbage, rubbish, ashes, street cleanings, dead animals, abandoned
automobiles, and other solid waste other than industrial waste.
Any source of any discharge of a pollutant that is not a
point source.
The notice of intent that is required by either the industrial
general permit or the construction general permit.
The notice of termination that is required by either the
industrial general permit or the construction general permit.
Any kind of oil in any form, including, but not limited to,
petroleum, fuel oil, crude oil or any fraction thereof which is liquid
at standard conditions of temperature and pressure, sludge, oil refuse,
and oil mixed with waste.
The person or persons who, either individually or taken together,
meet the following two criteria:
They have operational control over the facility specifications
(including the ability to make modifications in specifications); and
They have the day-to-day operational control over those activities
at the facility necessary to ensure compliance with pollution prevention
requirements and any permit conditions.
The person who owns a facility or part of a facility.
Any individual, partnership, copartnership, firm, company,
corporation, association, joint-stock company, trust, estate, governmental
entity, or any other legal entity; or their legal representatives,
agents, or assigns. This definition includes all federal, state, and
local governmental entities.
A substance or mixture of substances intended to prevent,
destroy, repel, or mitigate any pest, or any substance or mixture
of substances intended for use as a plant regulator, defoliant, or
desiccant (as these terms are defined in section 76.001 of the Texas
Agriculture Code).
A petroleum product that is obtained from distilling and
processing crude oil and that is capable of being used as a fuel for
the propulsion of a motor vehicle or aircraft, including motor gasoline,
gasohol, other alcohol blended fuels, aviation gasoline, kerosene,
distillate fuel oil, and #1 and #2 diesel. (The term does not include
naphtha-type jet fuel, kerosene-type jet fuel, or a petroleum product
destined for use in chemical manufacturing or feedstock of that manufacturing.)
Any one or combination of aboveground or underground storage
tanks that contain petroleum products and any connecting underground
pipes.
Any discernable, confined, and discrete conveyance, including
but not limited to, any pipe, ditch, channel, tunnel, conduit, well,
discrete fissure, container, rolling stock, concentrated animal feeding
operation, landfill leachate collection system, vessel or other floating
craft from which pollutants are or may be discharged. This term does
not include return flows from irrigated agriculture or agricultural
stormwater runoff.
Dredged spoil, solid waste, incinerator residue, sewage,
garbage, sewage sludge, munitions, chemical waste, radioactive materials,
wrecked or discarded equipment and industrial [wastes] discharged
into water. The term pollutant does not include tail water or runoff
water from irrigation or rainwater runoff from cultivated or uncultivated
range land, pastureland, and farmland.
Persons who possess the appropriate competence, skills, and
ability (as demonstrated by sufficient education, training, experience,
and/or, when applicable, any required certification or licensing)
to perform a specific activity in a timely and complete manner consistent
with the applicable regulatory requirements and generally-accepted
industry standards for such activity.
A person who has been duly licensed and registered to practice
landscape architecture by the state board of architectural examiners.
A person who has been duly licensed and registered by the
state board of registration for professional engineers to engage in
the practice of engineering in the state.
Any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing
into the municipal separate storm sewer system (MS4) or the waters
of the United States.
For any “hazardous substance,” the quantity established and listed in table 302.4 of 40 CFR part 302; for any “extremely hazardous substance,” the quantity established in 40 CFR part 355 and listed in appendix A thereto.
Nonputrescible solid waste, excluding ashes, that consist
of:
Combustible waste materials, including paper, rags, cartons,
wood, excelsior, furniture, rubber, plastics, yard trimmings, leaves,
and similar materials; and
Noncombustible waste materials, including glass, crockery, tin
cans, aluminum cans, metal furniture, and similar materials that do
not burn at ordinary incinerator temperatures (1600 to 1800 degrees
Fahrenheit).
The system of pipes, conduits, and other conveyances which
carry industrial waste and domestic sewage from residential dwellings,
commercial buildings, industrial and manufacturing facilities, and
institutions, whether treated or untreated, to the town sewage treatment
plant (and to which stormwater, surface water, and groundwater are
not intentionally admitted).
Any domestic sewage from holding tanks such as vessels, chemical
toilets, campers, trailers, and septic tanks.
Any retail establishment engaged in the business of selling
fuel for motor vehicles that is dispensed from stationary storage
tanks.
The domestic sewage and/or industrial waste that is discharged
into the town sanitary sewer system and passes through the sanitary
sewer system to the town sewage treatment plant for treatment.
The land or water area where any facility or activity is
physically located or conducted, including adjacent land used in connection
with the facility or activity.
Any garbage, rubbish, refuse, sludge from a waste treatment
plant, water supply treatment plant, or air pollution control facility,
and other discarded material, including, solid, liquid, semi-solid,
or contained gaseous material resulting from industrial, municipal,
commercial, mining, and agricultural operations, and from community
and institutional activities.
The State of Texas.
Stormwater runoff, snowmelt runoff, and surface runoff and
drainage.
The discharge from any conveyance which is used for collecting
and conveying stormwater and which is directly related to manufacturing,
processing, or raw materials storage areas at an industrial plant
which is within one of the categories of facilities listed in 40 CFR
122.26(b)(14), and which is not excluded from EPA’s definition
of the same term.
A plan required by either the construction general permit
or the industrial general permit and which describes and ensures the
implementation of practices that are to be used to reduce the pollutants
in stormwater discharges associated with construction or other industrial
activity at the facility.
The Town of Fairview, Texas, or the town council of Fairview.
The person appointed to the position of town engineer by
the town council or his/her duly authorized representative.
The industrial general permit issued by EPA on August 27,
1992, and published in volume 57 of the Federal Register at page 41304
on September 9, 1992, and any subsequent modifications or amendments
thereto.
The construction general permit issued by EPA on August 27,
1992, and published in volume 57 of the Federal Register at page 41217
on September 9, 1992, and any subsequent modifications or amendments
thereto.
A permit issued by EPA (or by the state under authority delegated
pursuant to 33 USC, section 1342(b)) that authorizes the discharge
of pollutants to waters of the United States, whether the permit is
applicable on an individual, group, or general area-wide basis.
Not containing a harmful quantity of any substance.
Any oil that has been refined from crude oil or a synthetic
oil that, as a result of use, storage, or handling, has become unsuitable
for its original purpose because of impurities or the loss of original
properties but that may be suitable for further use and is recyclable
in compliance with state and federal law.
Any groundwater, percolating or otherwise, lakes, bays, ponds,
impounding reservoirs, springs, rivers, streams, creeks, estuaries,
marshes, inlets, canals, the Gulf of Mexico, inside the territorial
limits of the state, 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 watercourses and bodies of
surface water, that are wholly or partially inside or bordering the
state or inside the jurisdiction of the state.
The designation of a body or segment of surface water in
the state for desirable uses and the narrative and numerical criteria
deemed by the State to be necessary to protect those uses, as specified
in chapter 307 of title 31 of the Texas Administrative Code.
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; all
interstate waters, including interstate wetlands; all other waters
the use, degradation, or destruction of which would affect or could
affect interstate or foreign commerce; all impoundments of waters
otherwise defined as waters of the United States under this definition;
all tributaries of waters identified in this definition; all wetlands
adjacent to waters identified in this definition; and any waters within
the federal definition of “waters of the United States”
at 40 CFR, section 122.2; but not including any waste treatment systems,
treatment ponds, or lagoons designed to meet the requirements of the
federal Clean Water Act.
An area that is inundated or saturated by surface or groundwater
at a frequency and duration sufficient to support, and that under
normal circumstances does support, a prevalence of vegetation typically
adapted for life in saturated soil conditions. Wetlands generally
include swamps, marshes, bogs, and similar areas.
Leaves, grass clippings, yard and garden debris, and brush
that results from landscaping maintenance and land-clearing operations.
(Ordinance 2012-1-3B adopted 1/3/12)
(a)
No
person shall introduce or cause to be introduced into the municipal
separate storm sewer system (MS4) any discharge that is not composed
entirely of stormwater.
(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 state 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 state
surface water quality standards;
(14)
Street wash water excluding street sweeper waste water;
(15)
Discharges or flows from emergency firefighting activities (firefighting
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 sec. 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 town engineer to be a source of a pollutant or pollutants to the waters 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 15 days beyond such notice. The correctness of the town engineer’s determination that a discharge is a source of a pollutant or pollutants may be reviewed in any administrative or judicial enforcement proceeding.
(Ordinance 2012-1-3B adopted 1/3/12; Ordinance 2022-05, sec. 1, adopted 3/1/22)
(a)
The specific prohibitions and requirements in this section are not necessarily inclusive of all the discharges prohibited by the general prohibition in section 3.12.153.
(b)
No
person shall introduce or cause to be introduced into the MS4 any
discharge that causes or contributes to causing the town to violate
a water quality standard, the town’s TPDES 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 used motor oil, antifreeze, or any other motor vehicle fluid;
(2)
Any industrial waste;
(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 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 that
operates more than two such vehicles;
(6)
Any wastewater from the washing, cleaning, de-icing, or other maintenance
of aircraft;
(7)
Any wastewater from commercial floor, rug, or carpet cleaning;
(8)
Any wastewater from the washdown or other cleaning of pavement that
contains any harmful quantity of soap, detergent, solvent, degreaser,
emulsifier, dispersant, or any other harmful cleaning substance; or
any wastewater from the washdown 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;
(9)
Any effluent from a cooling tower, condenser, compressor, emissions
scrubber, emissions filter, or the blowdown from a boiler;
(10)
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, or if the pH of less
than 6 or greater than 9;
(11)
Any fire protection water containing oil or hazardous substances
or materials. (This prohibition does not apply to discharges or flow
from firefighting by the fire department.);
(12)
Any water from a water curtain in a spray room used for painting
vehicles or equipment;
(13)
Any contaminated runoff from a vehicle salvage yard;
(14)
Any substance or material that will damage, block, or clog the MS4;
(15)
Solid or liquid substances which may cause obstruction to the flow
in storm sewers or other interference with the proper operation of
the stormwater system;
(16)
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 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.
In the event an erosion control measure fails two times, the town
shall require an improvement or replacement of the existing erosion
control measure to be installed, and the revised control measure to
be submitted to the town engineer for his or her approval.
(e)
No
person shall connect a line conveying sanitary sewage, domestic or
industrial, to the MS4, or allow such a connection to continue.
(f)
No
person shall cause or allow any pavement washwater from a service
station to be discharged into the MS4 unless such washwater has passed
through a properly functioning and maintained, grease, oil, and sand
interceptor before discharge into the MS4.
(g)
Used oil regulation.
No person shall:
(1)
Discharge used oil into the MS4 or a sewer, drainage system, septic
tank, surface water, groundwater, or watercourse;
(2)
Knowingly mix or commingle used oil with solid waste that is to be
disposed of in a landfill or knowingly directly dispose of used oil
on land or in a landfill;
(3)
Apply used oil to land for dust suppression, weed abatement, or other
similar use that introduces used oil into the environment.
(h)
In
addition, the following discharges are prohibited:
(1)
Wastewater from washout of concrete and wastewater from water well
drilling operations, unless managed by an appropriate control;
(2)
Wastewater from washout and cleanout of stucco, paint, from release
oils, and other construction materials;
(3)
Fuels, oils, or other pollutants used in vehicle and equipment operation
and maintenance;
(4)
Soaps or solvents used in vehicle and equipment washing; and
(5)
Discharges from dewatering activities, including discharges from
dewatering of trenches and excavations, unless managed by appropriate
BMPs.
(Ordinance 2012-1-3B adopted 1/3/12; Ordinance 2016-33 adopted 12/6/16; Ordinance
2022-05, sec. 2, adopted 3/1/22)
(a)
Right of entry; inspection and sampling.
The town engineer
shall have the right to enter the premises of any person discharging
stormwater to the municipal separate storm sewer system MS4 or to
waters of the United States to determine if the discharger is complying
with all requirements of this division, and with any state or federal
discharge permit, limitation, or requirement. Dischargers shall allow
the town engineer ready access to all parts of the premises for the
purposes of inspection, sampling, records examination and copying,
and for the performance of any additional duties. Dischargers shall
make available to the town engineer, upon request, any SWPPP’s,
modifications thereto, self-inspection reports, monitoring records,
compliance evaluations, notices of intent, and any other records,
reports, and other documents related to compliance with this division
and with any state or federal discharge permit.
(1)
Where a discharger has security measures in force which require proper
identification and clearance before entry into its premises, the discharger
shall make necessary arrangements with its security guards so that,
upon presentation of suitable identification, the town engineer will
be permitted to enter without delay for the purposes of performing
his/her responsibilities.
(2)
The town engineer shall have the right to set up on the discharger’s
property, or require installation of, such devices as are necessary
to conduct sampling and/or metering of the discharger’s operations.
(3)
The town engineer may require any discharger to the MS4 or waters
of the United States to conduct specified sampling, testing, analysis,
and other monitoring of its stormwater discharges, and may specify
the frequency and parameters of any such required monitoring.
(4)
The town engineer may require the discharger to install monitoring
equipment as necessary at the discharger’s expense. The facility’s
sampling and monitoring equipment shall be maintained at all times
in a safe and proper operating condition by the discharger at its
own expense. All devices used to measure stormwater flow and quality
shall be calibrated to ensure their accuracy.
(5)
Any temporary or permanent obstruction to safe and easy access to
the facility to be inspected and/or sampled shall be promptly removed
by the discharger at the written or verbal request of the town engineer
and shall not be replaced. The costs of clearing such access shall
be borne by the discharger.
(6)
Unreasonable delays in allowing the town engineer access to the discharger’s
premises shall be a violation of this division.
(b)
Search warrants.
If the town engineer has been refused
access to any part of the premises from which stormwater is discharged,
and he/she is able to demonstrate probable cause to believe that there
may be a violation of this division, or that there is a need to inspect
and/or sample as part of a routine inspection and sampling program
of the town designed to verify compliance with this division or any
order issued hereunder, or to protect the overall public health, safety,
and welfare of the community, then the town engineer may seek issuance
of a search warrant from any court of competent jurisdiction.
(Ordinance 2012-1-3B adopted 1/3/12)
(a)
Warning notice.
When the town engineer finds that any
person has violated, or continues to violate, any provision of this
division, or any order issued hereunder, the town engineer 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 town engineer to take any action,
including emergency action or any other enforcement action, without
first issuing a warning notice.
(b)
Notification of violation.
When the town engineer finds
that any person has violated, or continues to violate, any provision
of this division, or any order issued hereunder, the town engineer
may serve upon that person a written notice of violation. Within ten
(10) 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 town engineer. 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 town engineer within ten (10)
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 town engineer
to take any action, including emergency action or any other enforcement
action, without first issuing a notice of violation.
(c)
Consent orders.
The town engineer 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 division 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. Such documents shall have the same force and effect as the administrative orders issued pursuant to subsections (e), (f) and (g) of this section and shall be judicially enforceable.
(d)
Show cause hearing.
The town engineer may order any person who has violated, or continues to violate, any provision of this division, or any order issued hereunder, to appear before the town engineer 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 (10) 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 section 3.12.157(a)(7) of this division. 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 town engineer finds that
any person has violated, or continues to violate, any provision of
this division, or any order issued hereunder, the town engineer 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 town engineer finds that a person has violated, or continues to
violate, any provision of this division, 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 town
engineer 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 town 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.
(1)
When the town engineer finds that any person has violated, or continues
to violate, any provision of this division, 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 town engineer may issue an order to the violator directing it
immediately to cease and desist all such violations and directing
the violator to:
(2)
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 town engineer 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 town engineer may allow the person to recommence its discharge
when it has demonstrated to the satisfaction of the town engineer
that the period of endangerment has passed, unless further termination
proceedings are initiated against the discharger under this division.
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 town engineer within 10 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.
(h)
Red tags.
Whenever the town engineer finds that any
operator of a construction site has violated, or continues to violate,
any provision of this section of this division, or any order issued
thereunder, the town engineer may order that a “red tag”
be issued to the operator, posted at the construction site, and distributed
to all town departments and divisions whose decisions affect any activity
at the site. Unless express written exception is made by the town
engineer, the “red tag” shall prohibit any further construction
activity at the site and shall bar any further inspection or approval
by the town associated with a building permit, grading permit, site
development plan approval, or any other town 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.
(Ordinance 2012-1-3B adopted 1/3/12)
(a)
Reconsideration and hearing.
(1)
Any person subject to a compliance order under section 3.12.156(e), a remediation, abatement, or restoration order under section 3.12.156(f), an emergency cease and desist order under section 3.12.156(g), or a red tag order under section 3.12.156(h) of this division may petition the town engineer to reconsider the basis for his/her order within ten (10) days of the affected person’s notice of issuance of such an order.
(2)
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.
(3)
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.
(4)
The effect of any compliance order under section 3.12.156(e), remediation, abatement, or restoration order under section 3.12.156(f), and any red tag order under section 3.12.156(h) shall be stayed pending the town engineer’s reconsideration of the petition, and any hearing thereon, unless the town engineer expressly makes a written determination to the contrary. The effectiveness of any emergency cease and desist order under section 3.12.156(g) shall not be stayed pending the town engineer’s reconsideration, or any hearing thereon, unless the town engineer expressly and in writing stays his/her emergency order.
(5)
Within thirty (30) days of the submittal of a petition for reconsideration,
the town engineer shall either:
(6)
Written notice of any hearing set by the town engineer pursuant to subsection (5) above shall be served on the petitioning party personally or by registered or certified mail (return receipt requested) at least ten (10) days prior to the hearing. Such notice may be served on any authorized representative of the petitioning party.
(7)
The town engineer may himself/herself conduct the hearing and take
evidence, or he/she may designate any employee of the town or any
specially-designated attorney or engineer to:
(A)
Issue in the name of the town 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 town engineer
for action thereon.
|
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.
|
(8)
After the town engineer has reviewed the evidence, he/she shall either:
(A)
Grant the petition;
(B)
Deny the petition; or
(C)
Grant the petition in part and deny it in part.
|
The town engineer 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.
|
(b)
Appeal.
(1)
Any person whose petition for reconsideration by the town engineer has not been granted in its entirety and who remains adversely affected by the town engineer’s order, or who is subject to an order of the town engineer issued following a show cause hearing under section 3.12.156(d), may appeal the action of the town engineer to the town council by filing a written appeal with the town council within twenty (20) days of the person’s notice of the town engineer’s adverse action on the petition for reconsideration.
(2)
Failure to submit a timely written appeal to the town council shall
be deemed to be a waiver of further administrative review.
(3)
In its written appeal to the town council, the appealing party shall
indicate the particular provisions of the order objected to, the particular
determinations of the town engineer that are contested, the reasons
that the town engineer’s order and/or determinations are contested,
and any alternative order that the appealing party would accept.
(4)
The effect of the town engineer’s order, as issued or modified,
shall not be stayed pending the appeal to the town council, unless
the town council expressly so states.
(5)
Within thirty (30) days of the submittal of a written appeal to the
town council, the town council shall hear and consider the appeal
in open meeting. The appellant shall be notified at least ten (10)
days in advance of the date and time of the town council meeting at
which the appeal will be heard and considered.
(6)
The appellant shall have the right to public appearance before the
town council to present oral and written statements in support of
his/her appeal.
(7)
Upon consideration of any written and oral statements made to the
town council, as well as the record made before the town engineer,
the town council shall act on the appeal by affirming, vacating, or
modifying the order of the town engineer, and/or by remanding the
matter to the town engineer for further action.
(8)
Following final action by the town council on the appeal, any adversely
affected party may challenge such action by the town council in an
appropriate court of competent jurisdiction.
(Ordinance 2012-1-3B adopted 1/3/12)
(a)
Civil remedies.
(1)
Whenever it appears that a person has violated, or continues to violate,
any provision of this division that relates to:
(A)
The preservation of public safety, relating to the materials or methods
used in construction of any structure or improvement of real property;
(B)
The preservation of public health or to the fire safety of a building
or other structure or improvement;
(C)
The establishment of criteria for land subdivision or construction
of buildings, including street design;
(D)
Dangerously damaged or deteriorated structures or improvements;
(E)
Conditions caused by accumulations of refuse, vegetation, or other
matter that creates breeding and living places for insects and rodents;
or
(F)
Point source effluent limitations or the discharge of a pollutant,
other than from a nonpoint source, into the MS4.
|
The town may invoke sections 54.011–54.017 of the Texas Local Government Code and petition the state district court or the county court at law of the county, through the town attorney, for either the injunctive relief specified in subsection (2) or the civil penalties specified in subsection (3) below, or both the specified injunctive relief and civil penalties.
|
(2)
Pursuant to section 54.016 of the Texas Local Government Code, the
town may obtain against the owner or the operator of a facility a
temporary or permanent injunction, as appropriate, that:
(3)
Pursuant to section 54.017 of the Texas Local Government Code, the town may recover a civil penalty of not more than $1,000.00 per day for each violation of any provision of this division that relates to any matter specified in subsection (1)(A)–(E) above, and a civil penalty of not more than $5,000.00 per day for each violation of any provision of this division that relates to any matter specified in subsection (1)(F) above, if the town proves that:
(b)
Criminal penalties.
(1)
Any person who has violated any provision of this division, or any
order issued hereunder, shall be strictly liable for such violation
regardless of the presence or absence of a culpable mental state and
shall, upon conviction, be subject to a fine of not more than $2,000.00
per violation, per day.
(2)
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
division, or any order issued hereunder, or who has falsified, tampered
with, or knowingly rendered inaccurate any monitoring device or method
required under this division shall, upon conviction, be subject to
a fine of not more than $2,000.00 per violation, per day.
(3)
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.
(c)
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, or any rule, permit, or order of the state natural resource conservation commission, has occurred or is occurring within the jurisdiction of the town, exclusive of its extraterritorial jurisdiction, the town, in the same manner as the state natural resource conservation commission, may have a suit instituted in a state district court through its town attorney for the injunctive relief or civil penalties or both authorized in subsection (a) of section 26.123 of the Texas Water Code, 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. In any suit brought by the town under this subsection, the state natural resource conservation commission is a necessary and indispensable party.
(d)
Remedies nonexclusive.
The remedies provided for in
this division are not exclusive of any other remedies that the town
may have under state or federal law or other town ordinances. The
town may take any, all, or any combination of these actions against
a violator. The town is empowered to take more than one enforcement
action against any violator. These actions may be taken concurrently.
(Ordinance 2012-1-3B adopted 1/3/12)
