HomeMy WebLinkAboutResolution No. 96-C90RESOLUTION NO. 96-C90
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA CONDITIONALLY
SUPPORTING THE CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD ORDER 96 -XXX
(NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM NO. CAS611001), WASTE
DISCHARGE, REQUIREMENTS FOR MUNICIPAL STORM WATER AND URBAN RUNOFF
DISCHARGES WITHIN THE COUNTY OF LOS ANGELES
WHEREAS, the City Council of the City of Azusa (hereinafter "City"),
is committed to implementing programs and practices that shall, to the
maximum extent practicable, reduce pollutants discharged, into the San
Gabriel River and, therefrom, into Long Beach Harbor.
WHEREAS, the City is committed to allocating resources to finance the
cost of implementing reasonable storm water/urban runoff pollution
reduction programs;
WHEREAS, the tentative waste discharge order (hereinafter also
referred to as "tentative order") authorizes the new National Pollutant
Discharge Elimination System (hereinafter "NPDES") municipal permit for Los
Angeles County prepared by the California Regional Water Quality Control
Board, Los Angeles Region (hereinafter "regional board"), and such order
contains conflicting provisions which, if not corrected, could impede or
prevent effective compliance and thereby, expose the City to citizen law
suits;
WHEREAS, finding #4 of the tentative order refers to studies that
purportedly show that (1) organic and inorganic pollutants contained in
storm water runoff are often found in wastewaters and that such pollutants
can have adverse impacts on human health and aquatic ecosystems; and (2)
high volumes of storm water discharged from municipal storm water systems
in "areas of rapid urbanization have bad significant impacts on aquatic
ecosystems due to physical modifications such as bank erosion and widening
of channels;"
WHEREAS, however, finding #4 is too general and should not be used to
justify any requirement contained in the tentative order because: (1) it
does not refer to any specific study pertaining to storm water or urban
runoff from areas within the Los Angeles basin; (2) while heavy volumes of
stormwater may discharge into the MS4 from areas of rapid urbanization,
which may have significant impacts on aquatic ecosystems, to the extent of
causing bank erosion and channel widening. Such impacts have not been
documented in any area within the Los Angeles basin, wherein, in any case,
most of the channels and rivers that are responsible for conveying most of
the storm water are concrete lined (with the small exception of those
portions of channels or rivers that are used for ground water recharge or
detention purposes) and, therefore, are not prone either to bank erosion or
channel widening; and (3) reference to the federal "Guidance Manual for the
Preparation of Part II of the NPDES Applications for Discharges from
Municipal Storm Sewer Systems," is irrelevant because it contains no
mention of storm water or urban runoff problems within the Los Angeles
basin;
WHEREAS, finding #5 of the tentative order, refers to "Periodic Water
Quality Assessments, " on which regional board staff rests its assertion
that beneficial uses of such water bodies in Los Angeles County are
"impaired or threatened to be impaired" because of heavy metals, coliform,
enteric viruses, pesticides, nutrients, and other pollutants;
WHEREAS, however, while the City agrees that pollutants in runoff can
impair the beneficial uses of water bodies, finding #5 is a generalization,
to the extent that (1) it does not identify (a) which water bodies are
impaired (i.e., receiving waters in each of the watersheds subject to the
tentative order, (b) the beneficial uses of each watershed, (c) the extent
of impairment of water bodies within each watershed, and (d) the pollutants
responsible for such impairment; and (2) overlooks the fact that the
monitoring component of the tentative order calls for a "receiving water
study, "the purpose of which is to determine "the impacts, if any, of storm
water/non-storm water discharges on the beneficial uses of Santa Monica
Bay" and the Los Angeles and San Gabriel River and, therefore, the
conclusion that the beneficial uses of the Los Angeles River, San Gabriel
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River, Los Angeles Harbor, Long Beach Harbor, or other water bodies in the
basin, are impaired by storm water and non -storm runoff is premature and
suppositional;
WHEREAS, finding #6 of the tentative order refers to (1) an
epidemiological study commissioned by the Santa Monica Bay Restoration
Project (hereinafter "SMBRP) which confirms that swimming near flowing
storm drains in Santa Monica Bay increases health risks to humans; and (2)
other studies conducted by the SMBRP identified pathogenic contamination in
non -storm water flows during the summer at four storm drain locations in
Santa Monica Bay;
WHEREAS, however, the tentative order's assertion that the results of
the SMBRP studies can be "extrapolated" to other water bodies should be
regarded as a speculation; and if were compelling, similar studies
conducted in other parts of the country could be "extrapolated" to Santa
Monica Bay, thereby obviating the need for epidemiological or other studies
of that water body;
WHEREAS, whatever conclusions may be derived from SMBRP studies should
be confined to Santa Monica Bay and should not be extrapolated or applied
to other water bodies because they are different in terms of type and level
of pollution, and beneficial use -- a fact acknowledged in the 1994 "Water
Quality Control Plan, Los Angeles Region, Basin Plan for the Coast
Watersheds of Los Angeles and Ventura Counties;"
WHEREAS, the tentative order contains several provisions, which if
adopted, would do little to improve the quality of storm water and urban
runoff while imposing a substantial cost to City residents and business as
taxpayers;
WHEREAS, the tentative order contains a provision, which if adopted,
would place the City into a state of instant noncompliance, thereby
exposing it to citizen law suits;
WHEREAS, the tentative order, contains provisions, which if adopted,
would impose upon the City requirements that exceed federal storm water
provisions of the Clean Water Act (hereinafter "CWA."), including but not
limited to (1) legal authority requirements, which for example, mandate the
prohibition of hazardous waste, in containers used for, municipal refuse
collection, and a provision in the tentative order that calls for a future
county -wide storm water management plan that is to include a program for
reporting incidents of hazardous substances in "reportable quantities"
entering the MS4 (which is only an NPDES requirement for those industries
that are subject to General Industrial Activity Storm Water NPDES permits
and for facilities that are subject to 40 CFR 110.6:
WHEREAS, however, by imposing upon the City any requirement that
exceeds the federal storm water provisions of the CWA, through the
tentative order, which also functions as an NPDES permit, may be
interpreted by a federal court to be actionable under the Clean Water Act,
which entitles third party citizen law suits, notwithstanding that such
requirement is authorized only by state law;
WHEREAS, the tentative order contains provisions that are written in a
manner that is unclear and confusing which, if not corrected, would lead
the City into partial or noncompliance, thereby causing the City's exposure
to citizen law suits;
WHEREAS, the tentative order calls, under "conditionally exempted
discharges" lists street washing as such discharge, which "need not be
prohibited," but under "designated discharges," street washing is mentioned
again, however there is no mention of what a designated discharge is, nor
is it defined in the glossary of terms section of the order;
WHEREAS, the regional board staff claims to have authority to impose
upon the City and other municipalities subject to the tentative order,
requirements that exceed federal storm water regulation, notwithstanding
that such requirements may not be based on supposition, rather than on
scientific data;
WHEREAS, several City Attorneys have requested regional board staff to
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provide documents containing scientific data that would justify the
imposition of requirements beyond those mandated by federal storm water
regulations, regional board staff has not complied with such requests;
WHEREAS, the tentative order contains provisions that call for the
development and implementation of a county -wide storm water management
plan, or a watershed management plan, which would, unilaterally, impose
upon the City additional requirements to be determined after the waste
discharge order approved, without City review or approval;
WHEREAS, the tentative order is equivocative to the extent that in one
place it states that the City will be subject to a county -wide storm water
management plan or a watershed management plan, yet in another states that
the City will be subject to both plans; and in each case there is no
explanation as to what or who will determine which plan the City will be
subject to; nor does it explain what mechanism will trigger the watershed
management plan after the county -wide storm water management plan is
implemented;
WHEREAS, the tentative order contains a provision which, contrary to
what has been asserted by the regional bard, would require site visits of
industrial activity facilities for the purpose of inspection and
enforcement, in addition to providing public education;
WHEREAS, the tentative order contains a provision that would prohibit
the discharge of potable water applied to sidewalks and streets, even if
such water does not cause the delivery of refuse or other pollutants MS4
(includes streets, alleys, curbs, catch basins, and other conveyances);
WHEREAS, the tentative, order contains legal authority requirements
that are vague and offer no guidance on how to achieve compliance with
them;
WHEREAS, the tentative order is redundant in that it requires the City
to prohibit littering (even if the litter does not enter to the MS4), and
the disposal of leaves, dirt, or other landscape debris into a storm drain,
but is mindful of the fact that the order also prohibits illicit
discharges, which broadly includes the discharge of any material other than
storm water to the MS4, unless such discharge is exempted by the order or
an NPDES permit;
WHEREAS, the tentative order calls for the proper disposal of food
wastes by the food service and food distribution industry, it does not
define what "proper disposal" means,; nor does it provide a definition of
food service or food service distribution industry;
WHEREAS, the tentative order requires the City to identify industrial
activity facilities by Standard Industrial Code classification (hereinafter
"SIC") and determine if such facilities are covered by an NPDES permit;
WHEREAS, however, the responsibility for identifying industrial
activity facilities by SIC and determining if such facilities are covered
by an NPDES permit, should rest with regional board staff since it is
responsible for enforcing General Industrial Activity Storm Water Permit
requirements on behalf of the State Water Resources Control Board and,
therefore, possesses more experience and expertise in this area than the
City;
WHEREAS, the tentative order requires the City to establish legal
authority to control the pollutants to the MS4 "by discharges associated
with industrial activity and the quality of storm water discharged from
sites of industrial activity";
WHEREAS, however, the tentative order's legal authority requirements
compelling the City to control pollutant discharges from sites of
industrial activity is excessive and probably impermissible because of the
following argument: "sites of industrial activity which the tentative order
defines, includes "11 categories of industrial activities required to
obtain National Pollutant Discharge System (NPDES) permits for storm water
discharges..as required by 40 CFR 122.26(c)," and as such are regulated by
the State Water Resources Control Board(under Water Quality Order No. 91.-
13-DWQ, NPDES General Permit No. CASOOOOOI) and are enforce by the regional
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board; and therefore, such requirements cannot be imposed on the City
because (1)the City would be preempted by state law from enforcing them;
and (2) as asserted under finding #15 of Order 95-180, NPDES Permit No.
CAS029718, Reissuing Waste Discharge Requirements for municipalities and
districts in Santa Clara County, under the Clean Water Act, the
regional board cannot delegate to the Dischargers its own authority to
enforce these general permits," (made in reference to industrial and
construction activity permits), because such discharges from industrial
activities are already controlled;
WHEREAS, the tentative order contains legal authority requirements
that are not called for in federal storm water regulations per Title 40,
Code of Federal Regulations, §122(d)(2)(i)(A-F), including proscriptions
mentioned in E.l(a)(b) of the tentative order (e.g., prohibiting littering
and discharges to the MS4 from storage areas maintaining hazardous
materials);
WHEREAS, however, the tentative order's legal authority requirements are
contradictory in that (1) on the one hand they prohibit the discharge of
untreated wash waters (inferring that discharging treated wash waters is
permissible under the order) to the MS4 from gas stations. auto repair
garages. or similar use facilities and from mobile auto washing, steam
cleaning, mobile carpet cleaning, and other such mobile commercial and
industrial operations, yet on the other hand they prohibit such discharges
under the, illicit discharges and non -storm water sections of located
elsewhere in the tentative order; and (2) they also extend to gas stations,
auto repair garages, or similar use facilities (a term also not defined in
the tentative order), even though these commercial facilities are not, by the
tentative order's own definition, considered sites of industrial activity;
WHEREAS, the tentative order's legal authority requirements overlook the
fact that the City does not have the authority to prohibit discharges from
sites of industrial activity if the facility is covered under an NPDES
general industrial activity permit and has certified to the regional board
that it cannot eliminate non -storm water discharges -- information that is
out of the City's reach;
WHEREAS, although the City is prepared to allocate a portion of its
resources to fund storm water/urban runoff pollution prevention programs, it
is concerned about (1) the cost-effectiveness of some of the programs
proposed in the tentative order; and (2) potential legal costs associated not
only with defending against frivolous citizen law suits resulting from
unreasonable requirements imposed on the City by tentative order, but also in
defending against legal challenges, from facilities or individuals against
which City has been compelled to take enforcement actions for failing to
comply with vague or unreasonable legal authority requirement;
WHEREAS, the tentative order is incomplete;
WHEREAS, the tentative orders references "standard pollution prevention
practices developed by the American Water Works Association, California -
Nevada Section," but does not describe such practices or append the
referenced document to the orders;
WHEREAS, the regional board was required by federal regulations to adopt
waste discharge orders authorizing the second five-year NPDES municipal
permit in June of 1995;
WHEREAS, since February of 1995, the regional board has been negotiating
with the Executive Advisory Committee (hereinafter "EAC"), consisting of
individuals representing the County of Los Angeles, the City of Los Angeles,
and other cities from six watersheds for the purpose of negotiating waste
discharge order requirements with regional board staff;
WHEREAS, city representatives of the EAC negotiating team, excluding the
City of Los Angeles, disengaged from negotiations with the regional board
staff in October of 1995 because it (1) continually ignored requests from
negotiating team for a complete draft waste discharge order; (2) failed to
incorporate into its partial working draft waste discharge order
recommendations from city negotiating team members; (3) made revisions to the
working draft waste discharge order without prior consultation with
negotiating team members; (4) failed to provide negotiating team members with
a complete draft waste discharge order until December of 1995, some ten
months after negotiations began; and (5) first agreed then reneged on several
important waste discharge order issues;
WHEREAS, the City has apprised the regional board staff of the several
problems associated with the December 18,- 1995 draft permit waste discharge
orders through extensive, comments, many of which were not addressed, and as
a result, such problems are now present in the tentative order;
WHEREAS, the regional board informed cities that it would complete the
tentative orders by April 30, 1996, but did not send cities the tentative
orders until May 23, 1996.
WHEREAS the regional board staff retained a consultant to develop waste
discharge orders for Ventura County authorizing its municipal storm water
management program, it chose not to retain a consultant to develop a program
for Los Angeles County;
WHEREAS, the EAC developed a alternative storm water management program
that corrects the several problems associated with the tentative order and
submitted it to regional board staff;
WHEREAS, regional board staff claims a "'strong correlation" exists
between the EAC's alternative storm water management program and the
tentative order; however, contrary to what regional board staff has asserted,
the tentative order differs substantially from the EAC's alternative storm
water management program;
WHEREAS, the EAC and other cities subject to the tentative order have
expressed a need for a shorter tentative order, (now over 100 pages),similar
to other storm water management program waste discharge orders adopted in
other regions of the state;
WHEREAS, regional board staff justifies the length of the permit by
acknowledging that other regional waster discharge orders are shorter because
they already developed "voluminous county -wide and/or watershed management
plans in their applications";
WHEREAS, however, regional board staff has overlooked the fact that in
keeping with other regional waste discharge orders, the tentative order also
contains a provision that calls for the future development of county -wide
and/or watershed management plans which, if adopted, would also give rise to
voluminous county -wide and/or watershed management programs the length of
other that are likely accompanying program plans;
NOW, THEREFORE, THE COUNCIL OF THE CITY OF AZUSA DOES HEREBY RESOLVE AS
FOLLOWS:
Section 1. Advise regional board members of the City's conditional
support of the permit and recommend revision of the tentative orders to the
following extent:
A. Re -write receiving water limitations in a manner that does not
cause the cause the City to be in non-compliance with the orders
such as those written for Santa Clara County (Order 95-180), NPDES
Permit No. CAS02918), including the provision of a reopener that
would be triggered in event that adverse impacts to beneficial uses
of receiving waters persist, despite implementation of program/plan
requirements;
B. Re -write provisions to be identified by City staff to eliminate
contradiction and confusion;
C. Re -write provisions regarding the County -wide Storm Water
Management Program and Watershed Management Program in a manner
that
i. will not impose, unilaterally, additional requirements on the
City in the form of tasks or best management practice, without
the opportunity to appeal such requirements to the regional
board's governing body; and
ii. clarifies whether the City shall be subject to requirements of
the County -wide Storm Water Management Program or the
Watershed Management Program.
iii. identifies the mechanism for determining which of the two
plans will apply to the City;
iv. or, if it is the regional board's intention to require both
plans, identify the mechanism that would trigger the watershed
management plan during the term of the order.
D. Addressing proposed legal authority requirements to facilitate
understanding and compliance, including but not limited to the
following:
i. prohibiting untreated wash waters to the MS4 which is in
conflict with the tentative order's prohibition on illicit
discharges;
ii. requiring proper disposal of food wastes by the food service
and food distribution industries by defining "proper disposal"
and identifying food service and distribution industries;
iii. requiring "compliance with conditions in ordinances, permits,
and contracts", in terms of specific tasks needed to achieve
compliance;
iv. requiring "control through interagency or inter -jurisdictional
agreements among Permittees or any alternative means, the
discharge of one portion of the MS4 to another", in terms of
specific tasks needed to achieve compliance; and
V. prohibiting the placement of hazardous materials (which has
specific legal definition that is not provided anywhere in the
orders), into refuse containers for municipal trash disposal,
which should eliminated because (a) it would do little if
anything, to improve storm water quality; and (b) would
require the City to allocate resources for its enforcement.
E. Clarify the following non -storm water discharge provisions;
i. the definition of "designated discharge" (e.g. a prohibited or
conditional non -storm water discharge) within the context of
street and sidewalk washings and explain why the regional
board has determined that such discharges are pollutants of
concern;
ii. the placement of street washing under "conditionally exempted
discharges" and under "designated discharges",
iii. conditioning the discharge of potable water discharges to the
MS4 (including discharges originating from residential,
industrial, and commercial facilities), by requiring "standard
pollution prevention practices developed by the American Water
Works Association, California -Nevada Section, when such
practices were developed for water producers.
iv. explaining what determines a non -storm water discharge to be
designated discharges.
F. Delete the following:
i. findings 4, 5, and 6; and
ii. those legal authority requirements pertaining to industrial
activity facilities.
G. Resolve the conflict between industrial/commercial public education
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visits and enforcement of legal authority requires. Allow cities
to conduct their own education campaigns and eliminate site -visit
requirements.
Section 2. The City Council of the City of Azusa offers to assist
regional board staff in revising the tentative waste discharge order as
described herein under Section 1, A through E.
Section 3. The City Clerk shall certify the adoption of this
resolution.
PASSED, APPROVED AND ADOPTED this 1st day of July 19 96
MAYOR
I HEREBY CERTIFY that the foregoing Resolution No9L=_�L94aas duly adopted
by the City Council of the City of Azusa at a regular meeting thereof, held
on the 1st day of July, 1996, by the following vote of Council:
AYES:
NOES
CI
COUNCILMEMBERS: HARDISON, MADRID, NARANJO, BEEBE, ALEXANDER
COUNCILMEMBEF
COUNCILMEMBEF
: NONE
: NONE