O431ORDINANCE NO. 43l
:4N ORDINANCE OF THE CITY OF KENNEDALE, TEXAS, ADOPTING
A NEW ARTICLE VII "STORM WATER PROTECTION" IN CHAPTER
23 OF THE KENNEDALE CODE OF ORDINANCES (1991), AS
AMENDED, PROHIBITING THE DISCHARGE Or POLLUTANTS INTO
7'HE CITY'S MUNICIPAL SEPARATE STORM SEWER SYSTEM;
PROVIDING THAT THIS ORDINANCF, SHALL BE CUMULATIVE OF
.ALL ORDINANCES; PROVIDING A SEVERABILITY CLAIJSF,;
PROVIDING FOR A PENALTY FOR VIOLATIONS HEREOF;
PROVIDING A SAVINGS CLAUSE; PROVIDING FOR PUBLICATION
IN THE OFFICIAL NEWSPAPER; AND PROVIDING AN EFFECTIVE
DATE.
WHEREAS, the City of Kennedale is a home rule city acting under its charier adopted
by the electorate pursuant to Article XI, Section 5 of the Texas Constitution and Chapter 9 of the
Local Government Code; and
WHEREAS, the City deems it necessary to adopt an ordinance to maintain and improve
the quality of surface water and groundwater in the City, and to prevent the discharge of
pollutants and other harmful or inappropriate substances into these waters.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF KENNEDALE, TEXAS:
SECTION 1.
Chapter 23. "Water, Sewage and Sewage Disposal" of the Kennedale City Code is hereby
amendc~i by adding a new Article VII "Storm Water Protection" to read as follows:
"ARTICLE VII. STORM WATER PROTECTION
Sec. 23-376. Definitions.
When used in this Article, these terms shall be defined as follows:
Agricultural storm Neuter runotf~ Any storm water runoff from orchards, cultivated crops,
pastures. range lands, and other non-point source agricultural activities, but not discharges from
concentrated animal feeding operations as defined in 40 CFR Section 122.23 or discharges from
conccntratcd aquatic animal production facilities as defined in 40 CFR Section 122.24.
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C'FR. "I he Code of Federal Regulations.
['iry. The City of Kennedale, Texas, or the City Council of Kennedale.
Commencement of construction. "1'hc disturbance of soils associated with clearing, grading, or
excavating activities or other construction activities.
Commercial. Pertaining to any business, trade, industry, or other activity engaged in for profit.
Director. The person appointed to the position of Director of Public Works by the City Council
of the City of Kennedale or his/her duly authorized representative.
Discharge. Any addition or introduction of any pollutant, storm water, or any other substance
whatsoever into the municipal separate storm sewer system (MS4) or into waters of the United
States.
Discharger. 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.
Domesvic sewage. Human excrement, gray water (from home clothes washing, bathing,
showers. dishwashing, and food preparation), other wastewater from household drains, and
waterborne waste normally discharged from the sanitary conveniences of dwellings (including
apartment houses and hotels), off ce buildings, factories, and institutions, that is free from
industrial waste.
Environmental Protection Agency ("EPA "). 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 EPA or such successor
agency.
Extremely hazardous substance. Any substance listed in the Appendices to 40 CFR Part 355,
Emergency Planning and Notification.
Facility. Any building, structure, installation, process, or activity from which there is or may be
a discharge of a pollutant.
Fire Department. The Fire Department of the City of Kennedale or any duly authorized
representative thereof.
Fire protection i~-ater. Any water, and any substances or materials contained therein, used by
any person other than the Fire Department to control or extinguish a fire.
Garbage. Putresciblc 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.
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HarntJiil gteantity. The amount of any substance that will cause pollution of water in the State.
Hazardous household waste. Any material generated in a household (including single and
multiple residences, hotels and motels, bunk houses, ranger stations, crew quarters, camp
grounds. picnic grounds, and day use recreational areas) by a consumer which, except for the
exclusion provided in 40 CFR § 261.4(b)(1), would be classified as a hazardous waste under 40
CFR Part 261.
Hazardous substance. Any substance listed in Table 302.4 of 40 CFR Part 302.
Ilazm•dous waste. Any substance identified or listed as a hazardous waste by the EPA pursuant
to 40 CFR Part 261.
Industr•ictl was7e. Any waterborne liquid or solid substance that results from any process of
industry. manufacturing, mining, production, trade, or business.
~1~lotor vehicle fluids. 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 ~ chicle.
Municipal landfill (or landfill). 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 deilned in regulations promulgated
by the Texas Natural Resource Conservation Commission).
Municipal separate storm sewer system (.~IS4). The system of conveyances (including roads
with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made
channels, or storm drains) owned and operated by the City and designed or used for collecting or
conveying storm water, and which is not used for collecting or conveying sewage.
Municipal solid waste. 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.
Indush•iul General Permit. The NPDES General Permit for Stonnwater Discharges Associated
with Industrial Activity (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.
Construction General Permit. The NPDES General Pern~it for Stormwater Discharges from
Construction Sites (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.
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NPDE.S' permit A permit issued by F,PA (or by the State under authority delegated pursuant to
33 USC ~ 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.
,'i'on-point source. Any source of any discharge of a pollutant that is not a point source.
Notice uJ Intent. The Notice of Intent that is required by either the industrial General Permit or
the Construction General Pernlit.
Oil. My 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.
Operator. The person or persons who, either individually or taken together, meet the following
two criteria: (1) they have operational control over the facility specifications (including the
ability to make modifications in specifcations); and (2) 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.
(h~-ner. The person who owns a facility or part of a facility.
Person. Any individual, partnership, co-partnership, 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, slate, and local
governmental entities.
Petroleum product. 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.
Petroleum storage tank ("PST ). Any one or combination of above-ground or underground
storage tank that contain petroleum products and any connecting underground pipes.
Point source. 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
tloating craft from which pollutants are or may be discharged. This term does not include return
tlows from irrigated agriculture or agricultural storm water runoff.
Pollutunt. Dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge,
munitions, chemical waste, biological materials, radioactive materials, heat, wrecked or
discarded equipment. rock, sand, cellar dirt, and industrial, municipal, and agricultural waste
discharged into water. The term "pollutant" does not include tail water or runoff water from
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irrigation or rainwater runoff from cultivated or uncultivated range land, pasture land, and farm
land.
Polhrtion. 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 wafer for any lawful or reasonable purpose.
Release. Any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, or disposing into the municipal separate storm sewer system (MS4)
or the w aters of the United States.
Rubbish. Nonputrescible solid waste, excluding ashes, that consist of (A) combustible waste
materials, including paper, rags, cartons, wood, excelsior, furniture, rubber. plastics, yard
trimmings. leaves, and similar materials; and/or (B) 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).
,Sanitary sewer (or sewerj. 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 City
sewage treatment plant (and to which storm water, surface water, and groundwater are not
intentionally admitted).
,Septic tank waste. Any domestic sewage from holding tanks such as vessels, chemical toilets,
campers. trailers, and septic tanks.
.Service station. Any retail establishment engaged in the business of selling fuel for motor
vehicles that is dispensed from stationary storage tanks.
.Sewage (or sanitary sewage). The domestic sewage and/or industrial waste that is discharged
into the City sanitary sewer system and passes through the sanitary sewer system to the City
sewage treatment plant for treatment.
.Site. 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.
Solid tyuste. 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.
,State. The State of Texas.
,Storm a crter. Storm water runoff, snow melt runoff, and surface runoff and drainage.
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Storm (rater discharge associated with industrial activity. The discharge from any conveyance
which is used for collecting and conveying storm water 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 EP.A's definition of the same term.
Storm crater polhrtion prevention plan (SWPPP). 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 storm water discharges
associated with construction or other industrial activity at the facility.
Uncontaminated. Not containing a harmful quantity of any substance.
Used oil (or used motor oil). 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.
Water in the State (or water). 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 non-navigable, 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 inside the jurisdiction of the State.
6fater quality standard. 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 30 of the Texas Administrative Code.
Waters of the United States. All waters which are currently used, were used in the past, or may
he 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 § 122.2; but not including any waste treatment systems, treatment
ponds, or lagoons designed to meet the requirements of the federal Clean Water Act.
Wetland. 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.
Yard rt uste means leaves, grass clippings, yard and garden debris, and brush that results from
landscaping maintenance and land-clearing operations.
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Sec. 23-377. General prohibition.
(a) Vo person shall introduce or cause to be introduced into the municipal separate storm
sewer s~ stem ("MS4") any discharge that is not composed entirely of storm water.
(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:
I l) A discharge authorized by, and in full compliance with, an NPDES permit (other
than the NPDF,S permit for discharges from the MS4);
(2) A discharge or flow resulting from fire fighting by the Fire Department;
13) A discharge or flow of fire protection water that does not contain oil or hazardous
substances or materials where treatment adequate to remove harmful quantities of
pollutants has occurred prior to discharge;
(4) Agricultural stone water runoff;
(~) A discharge or flow from water line flushing that contains no harmful quantity of
chlorine or any other chemical used in line disinfection;
l6) A discharge or flow from lawn watering, landscape irrigation, or other irrigation
water;
(7) A discharge or flow from a diverted stream flow or natural spring;
(8) A discharge or flow from uncontaminated pumped groundwater or rising
groundwater;
19) Uncontaminated groundwater infiltration (as defined as 40 C.F.R. § 35.2005(20))
to the MS4;
110) Uncontaminated discharge or flow from a foundation drain, crawl space pump,
footing drain, or sump pump;
(l l) A discharge or flow from a potable water source not containing any harmful
substance or material from the cleaning or draining of a storage tank or other
container;
112) A discharge or flow from air conditioning condensation that is unmixed with
water from a cooling tower, emissions scnibber, emissions filter, or any other
source of pollutant;
1 l3) A discharge or flow from individual residential car washing;
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(14) A discharge or flow from a riparian habitat or wetland;
(15) A discharge or flow from water used in street washing that is not contaminated
with any soap, detergent, degreaser, solvent, emulsifier, dispersant, or any other
harmful cleaning substance;
(16) Storm water runoff from a roof that is not contaminated by any runoff or
discharge from an emissions scrubber or filter or any other source of pollutant; or
(17) Swimming pool water that contains no harmful quantity of chlorine, muriatic acid
or other chemical used in the treatment or disinfection of the swimming pool
water or in pool cleaning; however, a discharge of filter backwash from a
swimming pool shall not be an affirmative defense to any enforcement of this
Section.
(c) No affirmative defense shall be available under Subsection (b) of this Section if the
discharge or Clow in question has been determined by the llircctor 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 fifteen (IS) days
beyond the date such notice is received by the discharger. The Director's determination that a
discharge is a source of a pollutant or pollutants may he reviewed in any administrative or
judicial enforcement proceeding.
Sec. 23-378. Specific prohibitions and requirements.
(a) l he specific prohibitions and requirements in this Section are not necessarily inclusive of
all the discharges prohibited by the general prohibition in Section 23-377.
(b) No person shall introduce or cause to be introduced into the MS4 any discharge that
causes ur 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, 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;
O Any garbage, rubbish, or yard waste;.
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(6) 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;
(7) Any wastewater from the washing, cleaning, de-icing, or other maintenance of
aircraft:
18) 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;
(9) Any wastewater from floor, rug, or carpet cleaning;
(10) 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;
111) Any effluent from a cooling tower, condenser, compressor, emissions scrubber,
emissions filter, or the blowdown from a boiler;
112) Any ready-mixed concrete, mortar, ceramic, or asphalt base material or
hydromulch material, or material from the cleaning of vehicles or equipment
containing, or used in transporting or applying, such material;
113) Any runoff or washdown water from any animal pen, kennel, fowl or livestock
contaimnent area;
114) Any filter backwash from a swimming pool, fountain, or spa;
115) Any swimming pool water containing a harmfi~! quantity of chlorine, muriatic
acid or other chemical used in the treatment or disinfection of the swimming pool
water or in pool cleaning;
(l6) Any discharge from water line disinfection by superchlorination or other means if
it contains any hamlful quantity of chlorine or any other chemical used in line
disinfection;
(17) Any fire protection water containing oil or hazardous substances or materials,
unless treatment adequate to remove pollutants occurs prior to discharge;
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(18) Any water from a water curtain in a spray- room used for painting vehicles or
equipment;
( l9) Any contaminated runoff from a vehicle salvage yard;
(?0) Any substance or material that will damage, block, or clog the MS4;
(? 1) 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:
a. Complies with all state and federal standards and requirements;
b. Does not contain a harmful quantity of any pollutant; and
c. Does not contain more than fifty parts per billion (50 ppb) of benzene; five
hundred parts per billion (500 ppb) combined total quantities of benzene,
toluene, ethylbenzene, and xylcnc; or fifteen (15) mg/1 of total petroleum
hydrocarbons.
(d) No person shall introduce or cause to be introduced into the MS4 any harniful quantity of
sediment, silt, earth, soil, or other material associated with clearing, grading, excavation or other
construction activities, or associated with land filling 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 as required by the City s F,rosion and Sediment Control
Ordinance.
(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-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.
(g) No person shall:
(1) Discharge used oil into the MS4 or a sewer, drainage system, septic tank, surface
water, groundwater, or water course;
(?) Mix or comingle used oil with solid waste that i~ to be disposed of in a landfill or
directly dispose of used oil on land or in a landfill; or
i 3) Apply used oil to a road or land for dust suppression, weed abatement, or other
similar use that introduces used oil into the environment.
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Sec. 23-379. Compliance monitoring.
(a) Right of Entry: Inspection and Sampling. The Director shall have the right to enter the
premises of any person discharging storm water to the MS4 or to waters of the iJnited States to
detern3ine if the discharger is complying with all requirements of this Article. Dischargers shall
allow the Director ready access to all parts of the premises for the purposes of inspection,
sampling, records examination and copying, or for the performance of any additional duties
required to enforce this Article. Dischargers shall make available to the Director, upon request,
any SWPPPs, 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 Article or compliance 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 personnel so that, upon
presentation of suitable identification, the Director will be permitted to enter
without delay for the purposes of performing his responsibilities.
(?) The Director 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 Director may require any discharger to the MS4 or waters of the United
States to conduct specified sampling, testing, analysis, and other monitoring of its
stornl water discharges, and may specify the frequency and parameters of any
such required monitoring.
14) The Director 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
storm water flow and quality shall be calibrated to ensure their accuracy.
(i) Any temporary or permanent obstruction of 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 Director. The costs of clearing such access shall
be borne by the discharger.
(6) Unreasonable delays in allowing the Director access to the discharger's premises
shall be a violation of this Article.
(b) .ti'earch Warrunts. if the Director has been refused access to any part of the premises
from which storm water is discharged, and he is able to demonstrate probable cause to believe
that there may be a violation of this Article, or that there is a need to inspect and/or sample as
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part of a routine inspection and sampling program of the City designed to verify compliance with
this Article or any order issued hereunder, or to protect the overall public health, safety, and
welfare of the community, then the Director may seek issuance of a search warrant from any
court of competent jurisdiction.
Sec. 23-380. Administrative enforcement remedies.
(a) l~Varning 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
whereb} any offending discharge will cease. Investigation and/or resolution of the matter in
response to a warning notice in no way relieves the alleged violator of liability for any violations
occurring before or after receipt of a warning notice. Nothing in this subsection shall limit the
authority of the City to take any action, including emergency action or any other enforcement
action. without first issuing a warning notice.
(b) Votifi.cation 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 (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 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 (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 City to take any action, including emergency action or any
other enforcement action, without first issuing a Notice of Violation.
(c) Consent Orders. The City 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. Such documents shall have the same force and
effect as the administrative orders issued pursuant to subsections (e), (f), and (g) of Section 23-
;80 and shall be judicially enforceable.
(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 sen ed 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
I I:~CITY C~ ~UNCIL`,ORUINANCES12009 OrdinancesVOrdinance No. 431, Stormwater Ordinatice.doc (OR/07/09) Page l~
alleged violator. The hearing shall be conducted pursuant to the rights and procedures specified
in Section 23-381(a)(7). Notice of the decision of the Director from the hearing shall be served
on the petitioning party personally or by registered or certified mail. 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) Kemediation, 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 or the waters of the United States, the
Director may issue an order to the violator directing him/her to undertake and implement any
appropriate action to remediale and/or abate any adverse effects of the violation upon the MS4 or
the waters of the United States, and/or to restore any part of the MS4 or the waters of the United
States. Such remedial, abatement, and restoration action may include, but not be limited to:
monitoring, assessment, evaluation of the adverse effects, determination of the appropriate
remedial. abatement, and 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) limergency Cease cmd 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 arc 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:
11) Immediately comply with all requirements of this Article; and
I I:\CITY l c RINCIL\ORUINANCES\2009 Ordinancesl0rdinance No. 431, S[ormwater Ordinancadoc (U8/U7/U9) Page 1?
(?) Take such appropriate preventive action as may be needed to properly address a
continuing or threatened violation, including immediately halting operations
and/or terminating the discharge.
.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 endangern~ent has passed,
unless further termination proceedings are initiated against the discharger under this Article. 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 ten
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.
The city shall not reinstate suspended services, which have been terminated in accordance with
this Section. to the violator until:
a. The violator presents proof, satisfactory to the Director, that the
noncompliant discharge has been eliminated and its cause determined and
corrected;
h. The violator pays the Ciry for all costs the City incurred in responding to
abating, and remediating the discharge or threatened discharge; and
c. The violator pays the City for all costs the City will incur in reinstating
service or access.
(h) Red Tags. Whenever the Director finds that auy 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.
I I~\CITY (~ iUNCILIORDINANCES\2009Ordi~ances\Ordinance No. 431, Stonnwater Ordinance-doe (08!07109) Page 1~
Sec. 23-381. Right to reconsideration, hearing, and appeal.
(a) Review and Hearing.
(1) Any person subject to a Compliance Order, a Remediation, Abatement, or
Restoration Order, an Emergency Cease and Desist Order, or a Red Tag Order
pursuant to Section 23-380, may petition the Director to reconsider the basis for
the order within fifteen (15) days of the affected person's notice of issuance of
such an order.
12) Failure to submit a timely written petition for reconsideration shall be deemed a
waiver of any further right to administrative reconsideration and 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, Remediation, Abatement, or Restoration
Order, and any Red Tag Order issued pursuant to Section 23-380, 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. An
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 the emergency order.
(5) Within twenty-one (21) calendar days of the submittal of a petition for
reconsideration, the Director shall either (i) grant the petition and withdraw or
modify the order accordingly; (ii) deny the petition for reconsideration, without
hearing if no material issue of fact is raised; or (iii) if a hearing has been requested
and a material issue of fact has been raised, set a hearing on the petition for
reconsideration.
(6) Written notice of any hearing set by the Director pursuant to Subsection (5) of this
section shall be served on the petitioning party personally or by registered or
certified mail (return receipt requested) at least ten (] 0) days prior to the hearing.
Such notice may be served on any authorized representative of the petitioning
party.
(7) The Director may conduct the hearing and take evidence, or the Director may
designate any employee of the City or any specially-designated attorney or
engineer to:
I I:\CITY (c ~UNCIL`,ORDINANCES`~?009 Ordinancesl0rdinance No. 431, Stormwater Ordinance.doc (08/07109) Page 1`
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; and
c. transmit a report of the evidence and hearing, including transcripts and
other evidence, together with recommendations to the Director 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.
18) After the Director has reviewed the evidence, he shall either (i) grant the petition;
(ii) deny the petition; or (iii) grant the petition in part and deny it in part. Notice
of the Director's decision from the hearing shall be served on the petitioning party
personally or by registered or certified mail. The Director may modify the order
as is appropriate based upon the evidence and a~gumcnts presented at the hearing
and any action on the petition. Further orders and directives as are necessary and
appropriate may be issued.
(b) lppeal.
(1) 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 under Section 23-380(d), may appeal the Director's action to the City
Manager by filing a written appeal with the City Manager within ten (10) days of
the date the Director's adverse action on the petition for reconsideration is sent by
registered or certified mail, or within ten (] 0) days of the date the notice of the
issuance of the order follow7ng the Show Cause Hearing is sent by registered or
certified mail, as the case may be.
(2) Failure to submit a timely written appeal to the City Manager shall be deemed to
be a waiver of further administrative review.
(3) 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.
H:\CITY f uUNCIL\ORDINANCES120090rdinancesl0rdinance No. 431, StormwaterOrdinance.doc (OS/07/09) Page If
14) 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.
(5) Within thirty (30) days of the submittal of a written appeal to the City Manager,
the City Manager shall hear and consider the appeal in open meeting. The
appellant shall be notified at least seven (7) days in advance of the date and time
of the administrative hearing at which the appeal will be heard and considered.
(6) The appellant shall have the right to a public appearance before the City Manager
to present oral and written statements in support of the appeal.
(7) 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 Director's order and/or by
remanding the matter to the Director for further action.
(8) 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.
Sec. 23-382. Judicial enforcement remedies.
(a) ('ivil Remedies.
(l) The City may invoke Sections 54.012 - 54.017 of the Texas Local Government
Code and petition the State district court or the county court at law of Tarrant
County, through the City Attorney, for either the injunctive relief or the civil
penalties specified in this Article, or both the specified injunctive relief and civil
penalties whenever it appears that a person has violated, or continues to violate,
any provision of this Article.
(?) Pursuant to Section 54.016 of the 'Texas Local Government Code, the City may
obtain against the owner or the operator of a facility a temporary or permanent
injunction, as appropriate, that:
a. prohibits any conduct that violates any provision of this Article; or
b. compels the specific performance of any action that is necessary for
compliance with any provision of this Article.
(b) ("riminal Penalties.
I I) 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 and shall, upon conviction, be subject to a fine
H 1CITY C~ ~UNCIL\ORDIN,4NCES~2009 Ordinances\Ordinance No. 431, Stormwater Ordina~cadoc (08/07/09) Page I ;
of not more than $2,000.00 per violation, per day, or any greater fine authorized
by State statute.
1?) 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 $2,000.00 per violation, per day,
or any greater fine authorized by State statute.
13) 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) 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 Cit} 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
he taken concurrently.
SECTION 2.
This Ordinance shall be cumulative of all provisions of all existing ordinances and of the
Kennedale City Code (1991), as amended, including but not limited to all Ordinances of the City
of Kennedale affecting storm water pollution, and shall not repeal any of the provisions of such
ordinances except in those instances where provisions of such ordinances are in direct conflict
with the provisions of this ordinance.
SECTION 3.
It is hereby declared to be the intention of the City Council that the phrases, clauses,
sentences, paragraphs, and sections of this ordinance are severable, and if any phrase, clause,
sentence, paragraph or section of this ordinance shall be declared unconstitutional by the valid
judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not
affect any of the remaining phrases, clauses, sentences.. paragraphs and sections of this
ordinance, since the same would have been enacted by the City Council without the
incorporation in this ordinance of any such unconstitutional phrase, clause, sentence, paragraph
or section.
SECTION 4.
If:ACI"rY(~~UtvCILVORDNAI~CES\20090rdinances\OrdinanceNo.431,StormwaterOrdinance.doc(OS/071D9) Page If
Any person, firm or corporation who violates, disobeys, omits, neglects or refuses to
comply with or who resists the enforcement of any of the provisions of this Ordinance shall be
tined no more than Two Thousand Dollars and no cents ($2.000.00) for each violation, and in
addition shall pay all costs and expenses involved in the case. Each day a violation occurs is a
separate offense. Nothing herein contained shall prevent the City from taking such other lawful
action as is necessary to prevent or remedy any violation.
SECTION 5.
:111 rights and remedies of the City of Kennedale are expressly saved as to any and all
violations of the provisions of the Kennedale City Code (1991), as amended, or any other
ordinances regarding the regulation of discharge into the storm sewer system that have accrued at
the time. of the effective date of this ordinance; and, as to such accrued violations and all pending
litigation.. both civil and criminal, whether pending in court or not, under such ordinances.. same
shall nol be affected by this ordinance but may be prosecuted until final disposition by the courts.
SECTION 6.
I'he City Secretary of the City of Kennedale is hereby directed to publish the caption
penalty clause publication clause and effective date clause of this ordinance in every issue of the
official newspaper of the City of Kennedale for two days or one issue of the newspaper if the
official newspaper is a weekly newspaper as authorized by Section 3.10 ol'the City of Kennedale
Charter.
SECTION 7.
('his ordinance shall be in full force and effect from and after its passage and publication
as required by law, and it is so ordained.
PASSED AND APPROVED ON FIRST RF.ADiNG THIS _ DAY OF August,
2009.
~ ~ ~~~~~
Y
~``""~~~~"""' Bryan Lankhorst, Mayor
` ~y ~~~KE~rj~~j~
•, ~-
.~
~~r~ =
~, s. ' ~ ~ *' ATTEST:
_ -~ ~ ~
•~~',
Kathy Tumer, City Secretary
I I:ACI'I'Y C~ ~UNCIL\ORDINANCES\2009 Ordinancesl0rdina~ice No. 431, Stormwater Ordinance.doc (OR/07/09) Page 15
APPROVED AS TO FORM AND LEGALITY:
U~~ D,~
Wayne K. Olson, City Attorney
I I.`.CITY (~ tUNCIL\ORDINANC'ES~2009 Ordinances\Ordinancc No. 431, Stormwater Ordinance.doc (OA/07!091 Page 2(