HomeMy WebLinkAbout1996 054 CC RESO1996 054 CC RESO (Ìì ² µ RESOLUTION NO. 96-54
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF BALDWIN PARK CONDITIONALLY SUPPORTING
CALIFORNIA REGIONAL WATER QUALITY CONTROL
BOARD TENTATIVE ORDER NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM NO. CAS611001,
WASTE DISCHARGE REQUIRING FOR MUNICIPAL
STORM WATER AND URBAN RUNOFF DISCHARGES
WITHIN THE COUNTY OF LOS ANGELES
WHEREAS, the City Council of the City of Baldwin Park 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 the
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 a new National Pollutant Discharge Elimination System hereafter
NPDES") municipal permit for Los Angeles County as proposed 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 with its terms;
WHEREAS, fmding #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 discharge from municipal storm water systems
in areas rapid urbanization have had significant impacts on aquatic ecosystems due to physical
modifications such as bank erosion and widening of channels";
WHEREAS, however, fmding #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 storm water may discharge into the M54 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 chants 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 groundwater recharge or detention purposes) and,
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1996 054 CC RESO (Ìì ² µ 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, fmding #5 of the Tentative Order refers to Periodic Water Quality
Assessments," on which Regional Board staff bases its contention 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, fmding #5 is a generalization, since 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, 1,) 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 specifically 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; therefore, the conclusion that the beneficial uses of the Los
Angeles River, San Gabriel 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 hereafter 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; however, the
Tentative Order's assertion that the results of the SMBRP studies can be extrapolated" to other
water bodies should be regarded as unsubstantiated and incorrect; otherwise, 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 any other 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 the type and level of pollution and beneficial use facts
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 businesses as taxpayers;
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1996 054 CC RESO (Ìì ² µ 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 quantifies" 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, the Tentative Order contains many provisions that are written in a manner
that is unclear and confusing, and these ambiguities need correction;
WHEREAS, the Tentative Order lists street washing as a conditionally exempted
discharge"; street washing is also identified as a designated discharge," without any mention
of what a designated discharge is, and without such term being defmed in the Tentative Order's
glossary;
WHEREAS, the Regional Board staff asserts authority to impose upon the City and other
municipalities subject to the Tentative Order, requirements that exceed federal storm water
regulations, notwithstanding that such requirements are not legally or factually based;
WHEREAS, although several City Attorneys have requested that Regional Board staaf
provide documents containing scientific, anecdotal or quantitative data to justify requirements
beyond those mandated by federal storm water regulations, the Regional Board staff has not
complied with these requests;
WHEREAS, the Tentative Order contains numerous provisions added without City
review and/or approval and which call for the development and implementation of a county-wide
storm water management plan and/or a watershed management plan which would, unilaterally,
impose upon the City additional requirements to be determined after the Tentative Order is
approved);
WHEREAS, the Tentative Order is ambiguous in that in one place it states the City will
be subject to a county-wide storm water management plan or a watershed management plan, and
in another states the City will be subject to both plans; in neither case is there an explanation
as to what or who will determine which plan the City is to be subject to;
WHEREAS, the Tentative Order contains a provision that would prohibit the discharge
of potable water onto sidewalks and streets, even if such water does not cause the delivery of
refiZse or other pollutants into the MS4 includes streets, alleys, curbs, catch basins, and other
conveyances);
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1996 054 CC RESO (Ìì ² µ WHEREAS, the Tentative Order contains legal authority requirements that are vague and
likely unenforceable;
WHEREAS, while the Tentative Order calls for the proper disposal of food wastes by
the food service and food distribution industry, it does not defme 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. 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 staaf since it is responsible for enforcing General Industrial Activity Storm
Water Permit requirements on behalf of the State Water Resources Control Board and,
therefrom, possesses more experience and expertise in this area than does the City;
WHEREAS, the Tentative Order requires the City to establish legal authority to control
the pollutants to the M54 1by discharges associated with industrial activity and the quality of
storm water discharged from sites of industrial activity"; however, the Tentative Order's terms
compelling the City to control pollutant discharges from sites of industrial activity are excessive
and probably unenforceable because of the following: sites of industrial activity," which the
Tentative Order defmes, includes 1111 categories of industrial activities required to obtain
National Pollutant Discharge System NPDES) permits for storm water discharges as
requffed 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. CAS000001)
and are to be enforced by the Regional Board; therefore, such requirements cannot be imposed
on the City because 1) the City would be preempted by federal and/or state law from enforcing
them; and 2) as asserted under fmding #15 of Order 95-180, NPDES Permit No. CA5029718,
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 pennits";
WHEREAS, however, the Tentative Order's requirements are confusing in that 1) they
prohibit the discharge of untreated wash waters to the M54 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 inferring that discharging
treated wash waters is permissible under the Order), and also prohibit such discharges under the
illicit discharges and non-storm water sections located elsewhere in the Tentative Order; and 2)
they extend to gas stations, auto repair garages, or similar use facilities a term not def*med in
the Tentative Order), even though these commercial facilities are not by the Tentative Order's
own defmition, considered sites of industrial activity;
WHEREAS, the Tentative Order's terms 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
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1996 054 CC RESO (Ìì ² µ an NPDES general industrial activity permit and has certified to the Regional Board that it
cannot eliminate non-storm water discharges;
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 lawsuits because of the
ambiguities and overbreadth of the Tentative Order, but also in defending potential legal
challenges from facilities or individuals against which the City may be compelled to take
enforcement action;
WHEREAS, the Tentative Order references *`standard pollution prevention practices
developed by the American Water Works Association, California-Nevada Section,'9 but does not
describe such practices or append the referenced document to the Order;
WHEREAS, the Regional Board was iZquired 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 staff has been discussing a
draft permit with the Executive Advisory Committee hereinafter EAC), which consists of
individuals representing the County of Los Angeles, the City of Los Angeles, and a number of
other cities from six watersheds in the County. The discussions were intended to address the
scope and purpose of various waste discharge order requirements;
WHEREAS, city representatives of the EAC, excluding the City of Los Angeles, ended
its discussions with the Regional Board staff in October of 1995 because the staff 1) continually
ignored requests from the EAC for a complete draft waste discharge order; 2) failed to
incorporate into its partial working draft waste discharge order a number of recommendations
from the EAC; 3) made revisions to the working draft waste discharge order without
consultation with the EAC as previously agreed to; 4) failed to provide the EAC with a
complete draft waste discharge order until December of 1995, some six months after the June
1995 deadline and some ten months after discussions began; and 5) first agreed and then
reneged on several very important waste discharge issues;
WHEREAS, the EAC members apprised the Regional Board staff of the numerous
problems with the December 18, 1995 draft permit waste discharge orders through extensive
comments, many of which were not addressed, and thus, many of these same problems remain
with the Tentative Order;
WHEREAS, the Regional Board staff did not provide a revised Tentative Order to the
City, after the December draft, until May 23,1996, and thereafter provided the cities a very
limited time, approximately 30 days, to review the draft and to provide comments to the same,
even though the May 23 Tentative Order contained considerable changes and additions from the
December, 1995 draft and is a very lengthy and complex Order;
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1996 054 CC RESO (Ìì ² µ WHEREAS, the EAC developed an alternative storm water management program that
attempts to correct the numerous problems associated with the Tentative Order, and submitted
it to Regional Board staff for their review and consideration;
WHEREAS, although Regional Board staff has claimed that a strong correlation" exists
between the EAC's alternative storm water management program and the Tentative Order, the
Tentative Order is substantially different from the EAC's alternative storm water management
program;
WHEREAS, the Tentative Order prohibits the washing of toxic materials" from paved
or unpaved areas which may result in a discharge to the MS4, without defining the term toxic
materials";
WHEREAS, the Tentative Order prohibits the washing of impervious surfaces in any
industrial or commercial area which may result in a discharge to the MS4; this provision is
overly broad and would prohibit any commercial business from cleaning or washing sidewalks
or walkways at any time;
WHEREAS, the Tentative Order would prohibit the disposal of leaves, dirt or other
landscaping to a storm drain, without distinguishing disposal" through mere gravity i.e., leaves
falling from trees) or wind, or through simple sweeping or cleaning of streets of sidewalks, from
intentional disposal into the storm drain system, i.e., must a resident or business take affirmative
action to prevent leaves and dirt from being disposed of" into a storm drain. Such provisions
within the Tentative Order are overly broad and must be revised;
WHEREAS, the Tentative Order requires that each city demonstrate its legal authority"
to comply with the Tentative Order. The legal authority provided to cities is contained in state
and federal law, and a city does not have the ability to expand its authority in a manner that is
inconsistent with state and federal law;
WHEREAS, the Tentative Order requires each city to obtain a statement by its
representative legal counsel" that the city has obtained all necessary legal authority to comply
with the Order; whether a city has sufficient legal authority to carry out the terms of the Order
are provided pursuant to state and federal law, and the certification of a representative legal
counsel will not change such laws. No legal counsel can guarantee and/or certify that all
necessary legal authority to comply with" the Tentative Order exists.
NOW, THEREFORE, ThE COUNCIL OF THE CITY OF BALDWIN)WIN PARK DOES
HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The City hereby advises the Regional Board members of the City's
conditional support of the Tentative Order, and recommends revisions to the Tentative Orders
as set forth in the recitals to this Resolution and as follows:
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1996 054 CC RESO (Ìì ² µ A. The Tentative Order should he written to eliminate ambiguities and contradictory
terms as identified in the Recitals to this Resolution;
B. Revisions should he made to the receiving water limitation language in the
Tentative Order to incorporate the need for future receiving water studies, and to
delete ambiguities and unsubstantiated findings in the Tentative Order. The
receiving water limitations should he written similar to Santa Clara County, Order
95-180, NPDBS Permit No. CAS02918, including the provision for a reopener
to he triggered in the event adverse impacts to beneficial uses of receiving waters
exist and persist, despite implementation of program/plan requirements;
C. The County-wide Storm Water Management Program and Watershed Management
Program provisions of the Tentative Order should be rewritten in a manner that:
1. will not unilaterally impose additional requirements on the City under the
guise of tasks or best management practices, without an opportunity to
appeal such requirements to the Regional Board's governing body; and
il. clarifies whether the City is to he subject to the requirements of the
County-wide Storm Water Management Program or of the Watershed
Management Program, or both; and
iii. identifies the mechanism for determining which portions of either of the
two plans are to apply to the City.
D. The Tentative Order must he revised to clarify ambiguities in the various legal
requirements under the Order, including but not limited to the following:
i. the provisions requiring each city to have demonstrated legal authority"
to comply with the Tentative Order, must he revised; these provisions
should be modified to allow the City adopt an appropriate ordinance
and/or regulations, in accordance with its existing legal authority under
state and federal law;
ii. the provisions of the Tentative Order that require the City to obtain a
statement by its legal counsel" that the City has obtained all necessary
legal authority to comply with the Tentative Order must he deleted. This
language must he deleted as the City will not he able to obtain a
certification that it has such legal authority; that is, the City only has that
authority as provided to it under state and/or federal law;
iii. the provisions of the Tentative Order prohibiting untreated wash waters
to the M54 are in conflict with the Tentative Order's prohibition on illicit
discharges and must accordingly he revised;
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1996 054 CC RESO (Ìì ² µ iv. the provisions of the Tentative Order requiring proper disposal of food
wastes by the food service and food distribution industries must be revised
to include a definition for proper disposal" and to identify food service
and distribution industries;
V. the provisions of the Tentative Order requiring compliance with
conditions in ordinances, permits, and Contracts," must be revised to
include specific tasks needed to achieve such compliance;
vi. the Tentative Order must be amended to include information and specific
tasks to control, through interagency or inter-jurisdictional agreements
among Permittees or any alternative means, the discharge of one portion
of the MS4 to another"; and
vii. the Tentative Order must be revised to eliminate the prohibition on the
placement of hazardous waste" which is not defmed in the Order), into
refuse containers for municipal trash disposal, since this provision 1) is
likely preempted by existing state and federal law; 1))would do little, if
anything, to improve storm water quality; and c) would require the City
to allocate already scarce resources for its enforcement.
E. The Tentative Order must be revised to clarify the following non-storm water
discharge provisions:
i. the defmition of designated discharge" e.g., a prohibited or conditional
non-storm water discharge) within the context of street and sidewalk
washings must be clarified and an explanation provided, with supporting
information showing why the Regional Board has determined that such
discharges are pollutants of concern;
ii. the placement of street and sidewalk washing under conditionally
exempted discharges" and under designated discharges," rather than
under exempted discharges, must be clarified and explained;
iii. the provisions conditioning the discharge of potable water discharges to
the MS4 including dischargers originating from residential, industrial,
and commercial facilities), by requiring standard pollution prevention
practices developed by the American Water Works Association,
California-Nevada Section," must be clarified and explained;
iv. the terms of the Tentative Order indicting that a non-storm water
discharge may also be a designated discharge, must be clarified.
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1996 054 CC RESO (Ìì ² µ F The following sections of the Tentative Order should be deleted:
i. Findings 4, 5, and 6 in their entirety;
il. all legal authority requirements pertaining to industrial activity facilities;
and
iii. all provisions of the Tentative Order requiring the City to certify it has all
legal authority necessary to comply with the Tentative Order and implying
that the City must demonstrate legal authority" outside of what legal
authority exists under federal and/or state law.
SECTION 2. The City Council of the City of Baldwin Park offers the assistance of
Baldwin Park staaf to assist Regional Board staff in revising the Tentative Order as proposed in
this Resolution.
PASSED, APPROVED AND ADOPTED this 3rd day of July 1996
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES SS
CITY OF BALDWIN PARK
I, LINDA L. GAIR, City Clerk of the City of Baldwin Park, do hereby certify that the
foregoing Resolution No.96-54 was duly adopted by the City Council and signed by the Mayor
of said City at the regular meeting held on the 3rd day of July 1996, and that
the same was passed by the following roll call vote to-wit:
AYES: LOZANO. MARTINEZ. MUSE. LOWES, AND MAYOR VARGAS
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE
LINDA L. GAIR, CITY CLERK
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