ORDINANCE NO. 2008-__
AN ORDINANCE OF THE TOWN
OF MELBOURNE BEACH, BREVARD COUNTY, FLORIDA, REALTING TO STORMWATER; MAKING
FINDINGS; AMENDING CHAPTER 27 OF THE TOWN CODE OF ORDINANCES; ADDING ARTICLE II,
SECTIONS 27-20 THROUGH 27-36 RELATING TO ILLEGAL AND ILLICIT DISCHARGES AND
CONNECTIONS; PROVIDING A SHORT TITLE, OBJECTIVES, AND DEFINITIONS; PROVIDING
FOR APPLICABILITY AND COMPATIBILITY WITH OTHER REGULATIONS; PROVIDING FOR
SEVERABILITY AND ULTIMATE RESPONSIBILITY; REQUIRING CONTROL OF POLLUTANT CONTRIBUTIONS
FROM INTERCONNECTED MUNICIPAL SEPARATE STORM SEWER SYSTEMS; SETTING FORTH
PROHIBITIONS; REGULATING STOMRWATER DISCHARGES FROM COMMERCIAL, INDUSTRIAL, OR
CONSTRUCTION ACTIVITIES TO THE MUNICIPAL SEPARATE STORM SEWER SYSTEM OR
REGULATED WATERS; SETTING FORTH AUTHORIZED EXEMPTIONS AND EMERGENCY CONDITIONS;
REQUIRING INSPECTION AND MONITORING FOR COMPLIANCE; PROVIDING REPORTING
REQUIREMENTS; PROVIDING FOR VIOLATION, ENFORCEMENT, AND ASSESSMENT OF A
PENALTY; PROVIDING A SCHEDULE OF PENALTIES AND PROVIDING FOR THE USE OF PENALTY
AWARDS; PROVIDING FOR INTERPRETATION; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS,
the Town Commission has determined that it is in the Town’s best interest
to regulate non-stormwater discharges to
the municipal storm sewer system to the maximum extent practicable as required
by Federal and Florida law; and
WHEREAS,
the Town Commission has determined that it is in the Town’s best interest to
establish methods for controlling the introduction of pollutants into the Town’s
municipal storm sewer system in order to comply with requirements of the
National Pollutant Discharge Elimination System (NPDES) permit; and
WHEREAS,
the Town Commission finds that this Ordinance will promote the public health,
safety, welfare, economic order and public interest.
BE IT ENACTED BY THE TOWN OF
SECTION
1. That the Town Code of Melbourne Beach,
Florida, is hereby amended by adding a section, to be numbered 27-20, which
said section read as follows:
ARTICLE
III. ILLICIT DISCHARGE AND CONNECTION
§ 27-20. Short title.
This article shall be known and
may be cited as “The Town of
SECTION 2. That the Town Code of Melbourne Beach,
Florida, is hereby amended by adding a section, to be numbered 27-21, which
said section read as follows:
(a) The purpose of this article is to
provide for the health, safety, and general welfare of the citizens of the Town
of
(b) The objectives of this article are:
(1) To regulate the contribution of
pollutants to the municipal separate storm sewer system by stormwater
discharges by any user;
(2) To prohibit illicit connections and
discharges to the municipal separate storm sewer system; and
(3) To establish legal authority to carry
out all inspection, surveillance and monitoring procedures necessary to ensure
compliance with this article.
SECTION
3. That the Town Code of Melbourne Beach,
Florida, is hereby amended by adding a section, to be numbered 27-22, which
said section read as follows:
For the purposes of this article,
the following terms, phrases, words, and their derivations shall have the
meaning given herein:
Authorized enforcement agency means the
department within the Town of
Best Management Practices or BMPs
means schedules
of activities, prohibitions of practices, general good housekeeping practices,
pollution prevention and educational practices, maintenance procedures, and
other management practices to prevent or reduce the discharge of pollutants
directly or indirectly to stormwater, receiving waters, or stormwater
conveyance systems. BMPs also include
treatment practices, operating procedures, and practices to control site
runoff, spillage or leaks, sludge or water disposal, or drainage from raw
materials storage.
Clean Water Act or CWA means the federal Water Pollution Control Act (33
U.S.C. § 1251 et seq.), and any subsequent amendments thereto.
Construction activity means
any on-site activity which will result in the creation of a new stormwater
discharge, including the building, assembling, expansion, modification or
alteration of the existing contours of the site, the erection of buildings or
other structures, or any part thereof, or land clearing.
Hazardous
materials means any material, including any substance,
waste, or combination thereof, which because of its quantity, concentration, or
physical, chemical, or infectious characteristics may cause, or significantly
contribute to, a substantial present or potential hazard to human health,
safety, property, or the environment when improperly treated, stored,
transported, disposed of, or otherwise managed.
Illicit
Discharge or Illegal Discharge means any discharge to the town’s
municipal separate storm sewer system or to waters of the United States which
is not entirely of stormwater, unless exempted pursuant to section 27-28, or
the discharge to the town’s municipal storm separate sewer system or to waters
of the United States which is not in compliance with Federal, Florida, or local
permits.
Illicit
Connection means either of the following: 1) Any
drain or conveyance, whether on the surface or subsurface, which allows an
illegal or illicit discharge to enter the storm drain system including but not
limited to any conveyances that allow any non-storm water discharge including
sewage, process wastewater, and wash water to enter the storm drain system and
any connections to the storm drain system from indoor drains and sinks,
regardless of whether said drain or connection had been previously allowed,
permitted, or approved by an authorized enforcement agency; or 2) Any drain or
conveyance connected from a commercial or industrial land use to the storm
drain system which has not been documented in plans, maps, or equivalent
records and approved by an authorized enforcement agency.
Industrial
Activities means activities at facilities identified by the
United States Environmental Protection Agency as requiring an NPDES stormwater
permit in accordance with 40 CFR 122.26(b)(14) or amendments thereto, or any
unit operation, complex, area or multiple of unit operations that produce,
generate, handle, process or cause to be processed, any materials which may
cause water pollution.
Municipal
Separate Storm Sewer System means a conveyance, storage
area or system of conveyances and storage areas (including, but not limited to,
roads or streets with drainage systems, catch basins, curbs, gutters, ditches,
manmade channels, storm drains, treatment ponds and other structural BMPs)
owned and operated by a local government that discharge to waters of the United
States or to other municipal separate storm sewer systems, that is designed
solely for collecting, treating or conveying stormwater and that is not part of
publicly owned treatment works (POTW) as defined by 40 CFR 122.2 or any
amendments thereto.
National
Pollutant Discharge Elimination System (NPDES) stormwater discharge permit means a
permit issued by the Florida Department of Environmental Protection (FDEP) that
authorizes the discharges of pollutants to waters of the
Non-stormwater
discharge means any discharge to the storm drain system
that is not composed entirely of stormwater.
Person means
an individual, corporation, governmental agency, business trust, estate, trust,
partnership, association, two (2) or more persons having a joint or common
interest, or any other legal entity.
Pollutant
means anything that causes or contributes to pollution. Pollutants may include, but are not limited
to paints, varnishes, and solvents; oil and other automotive fluids;
non-hazardous liquid and solid wastes and yard wastes; refuse, rubbish,
garbage, litter, or other discarded or abandoned objects, ordnances, and
accumulations, so that same may cause or contribute to pollution; floatables;
pesticides, herbicides, and fertilizers; hazardous substances and wastes;
sewage, fecal coliform and pathogens; dissolved and particulate metals; animal
wastes; wastes and residues that result from constructing a building or
structure; and noxious or offensive matter of any kind.
Receiving bodies of water means
any water bodies, watercourses and wetlands into which surface waters flow.
Stormwater management system means
the designed features of the property that collect, convey, channel, hold,
inhibit or divert the movement of stormwater.
Stormwater means
any surface flow, runoff, and drainage consisting entirely of water from any
form of natural precipitation, and resulting from such precipitation.
Watercourse means
any natural or artificial stream, creek, channel, ditch, canal, waterway,
gully, ravine or wash in which water flows in a definite direction, either
continuously or intermittently, and which has a definite channel, bed or banks.
Water body mean any
natural or artificial pond, lake, reservoir, or other area which ordinarily or
intermittently contains water and which has a discernible shoreline.
This
article shall apply to all water entering the municipal separate storm sewer
system on any developed and undeveloped lands unless explicitly exempted by
this article or an authorized enforcement agency.
SECTION 5. That the Town Code of Melbourne Beach,
Florida, is hereby amended by adding a section, to be numbered 27-24, which
said section read as follows:
§ 27-24.
Compatibility with other regulations.
This
article is not intended to modify or repeal any other ordinance, rule,
regulation, or other provision of law.
The requirements of this ordinance are in addition to the requirements
of any other ordinance, rule, regulation, or other provision of law, and where
any provision of this article imposes restrictions different from those imposed
by any other ordinance, rule, regulation, or other provision of law, whichever
provision is more restrictive or imposes higher protective standards for human
health or the environment shall control.
SECTION 6. That the Town Code of Melbourne Beach,
Florida, is hereby amended by adding a section, to be numbered 27-25, which
said section read as follows:
§ 27-25.
Severability.
The
provisions of this article are hereby declared to be severable. If any word, provision, clause, sentence, or
paragraph of this article or the application thereof to any person,
establishment, or circumstances shall be held invalid, such invalidity shall
not affect the other provisions or application of this ordinance.
SECTION 7. That the Town Code of Melbourne Beach,
Florida, is hereby amended by adding a section, to be numbered 27-26, which
said section read as follows:
§ 27-26.
Ultimate responsibility.
The standards set forth herein
and promulgated pursuant to this article are minimum standards; therefore this
article does not intend nor imply that compliance by any person will ensure
that there will be no contamination, pollution, nor unauthorized discharge of
pollutants.
SECTION
8. That the Town Code of Melbourne Beach,
Florida, is hereby amended by adding a section, to be numbered 27-27, which
said section read as follows:
§ 27-27. Control
of pollutant contributions from interconnected municipal separate storm sewer
systems.
Interconnected
municipal separate storm sewer systems, including municipal separate storm
sewer systems not owned by the town, shall be controlled so that they do not
impair the operation of or contribute to the failure of the receiving municipal
separate storm sewer systems to meet any applicable local, state, or federal
law or regulation. Owners of sections of
an interconnected municipal separate storm sewer systems shall be responsible
for the quality within their portion of the system and shall coordinate with
the owners of the downstream segments.
SECTION
9. That the Town Code of Melbourne Beach,
Florida, is hereby amended by adding a section, to be numbered 27-28, which
said section read as follows:
(a) Illicit/Illegal Discharges. No person shall throw, drain, or
otherwise discharge, cause, or allow others under its control to throw, drain,
or otherwise discharge into the municipal separate storm sewer systems any
pollutants or waters containing any pollutants, other than stormwater, whether
such discharges occur through piping connections, runoff, exfiltration,
infiltration, seepage or leaks.
Polluting matter includes, but is not limited to, the following:
(1) petroleum
products, including, but not limited to oil, gasoline, grease;
(2) solid
waste (as defined in s. 403.702, F.S.);
(3) paints;
(4) steam
cleaning waste;
(5) pesticides,
herbicides or fertilizers;
(6) degreasers,
solvents;
(7) sanitary
sewage;
(8) chemically
treated cooling water;
(9) antifreeze
and other automotive products;
(10) lawn
clippings, leaves, branches, etc.;
(11) animal
carcasses;
(12) recreational
vehicle waters;
(13) dyes;
(14) construction
materials;
(15) any liquids in quantity or quality that
are capable of causing a violation of the town’s NPDES stormwater permit; and
(16) Solids in such quantities or of such size
capable of causing interference or obstruction to the flow of the town’s separate
storm sewer system.
(b) Illicit Connections.
(1) No person may maintain, use or establish
any direct or indirect connection to any storm sewer owned by the town that
results in any discharge in violation of any provision of federal, state, city
of other laws or regulations.
(2) This subsection is retroactive, and
applies to illicit connections made prior to the effective date of the article
from which this subsection is derived; regardless of whether made under a
permit or other authorization, or whether permissible under laws or practices
applicable or prevailing at the time the connection was made.
(3) A person is considered to be in
violation of this article if the person connects a line conveying sewage to the
municipal separate storm sewer system, or allows such a connection to continue.
(c) Violation
of Permits. Any discharge into the
stormwater system of the town in violation of any Federal, state, county, municipal
or other governmental law, rule, regulation or permit is prohibited, except
those discharges set forth in this section or as in accordance with a valid
NPDES permit.
SECTION 10. That the Town Code of Melbourne Beach,
Florida, is hereby amended by adding a section, to be numbered 27-29, which
said section read as follows:
§ 27-29. Stormwater discharges from commercial,
industrial or construction activities to the municipal separate storm sewer
system or regulated waters.
(a) Stormwater from areas of any commercial
activity, industrial activity or construction activities shall be controlled,
treated and managed on-site using best management practices so as not to cause
an illicit or illegal discharge to the town’s municipal separate storm sewer
system or regulated waters.
(b) All erosion, pollutant, and sediment
controls required by the town code, or by any applicable local, state, or Federal
permit, including elements of a stormwater pollution prevention plan required
under a NPDES permit and the town’s land development regulations in appendix A
of the town code, shall be properly implemented, installed, operated, and
maintained.
(c) Authorized discharges to the town’s municipal
separate storm sewer system shall be controlled so that they do not impair the
operation of the town’s municipal separate storm sewer system or contribute to
the failure of the town’s municipal separate storm sewer system to meet any
applicable local, state, or federal law or regulation.
(d) Authorized discharges to regulated
waters shall be controlled so that they do not adversely impact the quality or
beneficial uses of those waters or result in violation of any applicable local,
state, or Federal law or regulation.
(e) Any person who has been issued an NPDES
permit authorizing discharges to the municipal separate storm sewer systems shall
submit a complete copy of the permit to town building official by not later
than June 30, 2008, (thirty (30) days after the effective date of this article),
or within thirty (30) days after the issuance of a permit.
§ 27-30.
Authorized exemptions.
(a) The commencement, conduct or continuance
of any illicit or illegal discharge to the storm drain system is prohibited
except as follows:
(1) water line flushing;
(2) flushing of reclaimed water lines;
(3) street cleaning;
(4) construction dust control;
(5) landscape irrigation;
(6) diverted stream flows;
(7) rising ground waters;
(8) foundation and footing drains;
(9) uncontaminated swimming pool discharges;
(10) uncontaminated ground water infiltration (as defined at 40
C.F.R.35.205(20));
(11) uncontaminated pumped ground water;
(12) discharges from potable water sources;
(13) air conditioning condensate;
(14) irrigation water;
(15) springs;
(16) lawn watering;
(17) individual residential car washing;
(18) flows from riparian habitat and wetlands; and
(19) discharges or flows from emergency fire fighting activities and
emergency response activities done in accordance with an adopted spill
response/action plan.
(b) The prohibitions contained in this article shall not apply to
any non-stormwater discharge permitted under an NPDES permit, waiver, or waste
discharge order issued to the discharger and administered under the authority
of the Florida Department of Environmental Protection, provided that the
discharger is in full compliance with all requirements of the permit, waiver,
or order and other applicable laws and regulations, and provided that written
approval has been granted for any discharge to the storm drain system.
SECTION 12. That the Town Code of Melbourne Beach,
Florida, is hereby amended by adding a section, to be numbered 27-31, which
said section read as follows:
§ 27-31. Emergency conditions.
(a) Not withstanding any other provisions of this article,
whenever the town or an authorized enforcement agency determines that
conditions or activities requiring immediate action to protect public health,
safety or welfare, or to provide for compliance with these regulations, rules
promulgated hereunder, or town approved construction plans, town forces are
authorized to enter at a reasonable time in or upon any property for the
purpose of testing, inspecting, investigating, measuring, sampling and
correcting such emergency conditions.
Failure to admit personnel responding to emergency conditions, as
determined and authorized by the authorized enforcement agency, shall
constitute a separate violation of this article.
(b) Suspension
due to illicit discharges in
emergency situations. The town or
other authorized enforcement agency may, without prior notice, suspend municipal
separate storm sewer system discharge access to a person when such suspension
is necessary to stop an actual or threatened discharge which presents or may
present imminent and substantial danger to the environment, or to the health or
welfare of persons, or to the municipal separate storm sewer system or waters
of the United States. If the violator
fails to comply with a suspension order issued in an emergency, the town or
other authorized enforcement agency may take such steps as deemed necessary to
prevent or minimize damage to the municipal separate storm sewer systems or
waters of the United States, or to minimize danger to persons.
(c) Suspension
due to the detection of illicit discharge.
Any person discharging to the municipal separate storm sewer system in
violation of this article may have their municipal separate storm sewer system
access terminated if such termination would abate or reduce an illicit
discharge. The town or other authorized
enforcement agency will notify a violator of the proposed termination of its municipal
separate storm sewer system access. The
violator may petition the town or other authorized enforcement agency for a
reconsideration and hearing. It is
considered an offense of this article if the person reinstates municipal
separate storm sewer systems access to premises terminated pursuant to this
section without the prior approval of the authorized enforcement agency.
SECTION 13. That the Town Code of Melbourne Beach,
Florida, is hereby amended by adding a section, to be numbered 27-32, which
said section read as follows:
§ 27-32. Inspection and monitoring for compliance.
Town
personnel and town agents shall be granted access for inspection of facilities
discharging or suspected of discharging to the town’s municipal separate storm sewer system or waters of the United States in order to
effectuate the provisions of this article and to investigate violations or
potential violations of any of the terms herein. All structures and processes which allow
discharges to the town’s municipal
separate storm sewer system, as well as records connecting them, shall
be made accessible to town personnel and town agents for this purpose.
SECTION
14. That the Town Code of Melbourne
Beach, Florida, is hereby amended by adding a section, to be numbered 27-33,
which said section read as follows:
§ 27-33. Reporting requirements.
Illicit
discharges to the municipal separate storm sewer system are prohibited. Any person owning or occupying a property, premise,
or facility who has knowledge of a discharge of pollutants from said property, premise,
or facility or other type of evidence which might result in a violation of the
prohibitions found in section 27-28 of this article shall immediately take
action to abate the discharge of pollutants, and shall notify the authorized
enforcement agency within twenty-four (24) hours of the discharge of
pollutants. The initial notification may
be by telephone, but the person responsible shall submit a written report
within seventy-two (72) hours of discovery.
The written report shall include a description of the discharge volume,
content, frequency, discharge point location to the municipal separate storm
sewer system, measures taken or to be taken to terminate the discharge, and the
name, address and telephone number of the person who may be contacted for
additional information. Hazardous
materials discharges shall be reported to the town, the
SECTION
15. That the Town Code of Melbourne
Beach, Florida, is hereby amended by adding a section, to be numbered 27-34,
which said section read as follows:
§ 27-34.
Violations, enforcement, and penalties.
(a) Notice of violation. Whenever the town or an authorized enforcement
agency finds that a person has violated a prohibited act or failed to meet a
requirement of this article, the town or the authorized enforcement agency may
order compliance by written notice of violation to the responsible person. Such notice may require without limitation:
(1) The elimination of illicit connections
or discharges.
(2) The issuance of cease and desist orders.
(3) The abatement or remediation of storm
water pollution or contamination hazards and restoration of any affected
property.
(4) The implementation of source control or
treatment BMPs.
If abatement of a violation and/or restoration of
affected property is required, the notice shall set forth a deadline within
which such remediation or restoration must be completed. Said notice shall further advise that, should
the violator fail to remediate or restore within the established deadline, the
work may be done by a designated governmental agency or a contractor and the
expenses thereof shall be charged to the violator.
(b) Appeal of notice of violation. Any person receiving a notice of
violation may appeal the determination of the authorized enforcement
agency. The notice of appeal must be
received within ten (10) days from the date of the notice of violation. Hearing on the appeal shall be before the town
code enforcement board and shall take place within thirty (30) days from the
date of receipt of the notice of appeal.
The decision of the town shall be final.
(c) In addition to any fines that may be
imposed, any person responsible for illicit or illegal discharges, or
noncompliance with BMPs at industrial and/or construction sites, and who fails
to correct any prohibited condition or discontinue any prohibited activity at
the order of the authorized enforcement agency shall be liable to the town for
the expenses incurred in abating pollution, including expenses incurred in
testing, measuring, sampling, collecting, removing, treating, and disposing of
the polluting materials and preventing further noncompliance and/or illicit
discharges.
(d) Persons
responsible for violation of this article shall be liable for all costs
incurred by the town in sampling, analyzing and/or monitoring the discharge,
together with all state and/or Federal fines imposed as a result of the
discharge and cost of removing, remedying or properly treating the discharge.
(e) Any
person found in violation and/or who fails to comply with the requirements of
any provision of the article shall, without limitation on the town’s legal
recourse, be subject to prosecution before the town’s Code Enforcement
Board. Each day of violation shall
constitute a separate violation.
(f) The town
may elect to take any or all of the above remedies concurrently, and the pursuit
of one shall not preclude the pursuit of another.
SECTION
16. That the Town Code of Melbourne
Beach, Florida, is hereby amended by adding a section, to be numbered 27-35,
which said section read as follows:
§ 27-35. Schedule of penalties. A person who has been convicted of
an offense under this article may be required to pay a fine in addition to any
punishment of incarceration as described in s. 1-99. Fines for designated violations shall not
exceed:
|
Section |
Description |
Penalty |
|
27-28 |
Failure to comply with IDO
prohibitions |
$200 per day/per occurrence |
|
27-29 (a)(c)(d)(e) |
Failure to comply with IDO industrial
activities and construction site requirements. |
$125 per day/per occurrence |
|
27-33 |
Failure to comply with IDO reporting
requirements. |
$125 per occurrence |
|
27-34 |
Failure to comply with IDO site
remediation and monitoring requirements |
$200 per day/per occurrence |
|
27-29(b) |
Failure to comply with IDO erosion and
sedimentation control measures |
$50 per day/per occurrence |
SECTION
17. That the Town Code of Melbourne
Beach, Florida, is hereby amended by adding a section, to be numbered 27-36,
which said section read as follows:
§ 27-36.
Use of penalty awards.
Any money recovered by the town
in an action against any person who has caused pollution in the town in
violation of this article or state law shall be used for water quality
improvement projects in the town.
SECTION 18. Interpretation Clause. In interpreting the provisions of this
Ordinance, the following rules and symbols shall apply:
(1) Words underlined are additions to
existing text.
(2) Words stricken through are deletions
from existing text.
(3) Asterisks (* * *) indicates a deletion from
the Ordinance of text existing in the Code of Ordinances. It is intended that the text in the Code of
Ordinance denoted by the asterisks and not set forth in this Ordinance shall
remain unchanged from the language existing prior to adoption of this
Ordinance.
SECTION 19. Effective Date. That this ordinance shall become effective
This Ordinance was passed on first
reading at a regular meeting of the Town Commission on the 19th day of March,
2008, and adopted on the second and final reading at a regular
meeting of the City
Council on the 16th day of April, 2008.
TOWN OF