The City of Bartlett has enacted a Storm Water Management and Pollution Control Ordinance in order to protect, maintain and enhance the environment of the City of Bartlett and the public health, safety and general welfare of the citizens of the City by controlling discharges of pollutants to the City’s storm water system and to maintain and improve the quality of the receiving waters into which the storm water outfalls flow, including, without limitation, lakes, rivers, streams, ponds, wetlands and groundwater of the City. The City of Bartlett is the permitting authority for all land disturbing activities and requires the land owner to maintain all on-site stormwater control facilities and all open space areas (e.g. parks or “green” areas) required by the approved stormwater control plan. The City of Bartlett will only provide construction permits to projects that establish a plan to manage stormwater runoff occurring during the construction process. The City of Bartlett, under the NPDES program, also has the authority to inspect properties for noncompliance and can issue a notice of violation (NOV) for any deficiency or infraction onsite.
(1) Scope. This section shall apply to all water generated on developed or undeveloped land entering the MS4.
(2) Prohibition of illicit discharges. No person shall introduce or cause to be introduced into the MS4 any discharge that is not composed entirely of storm water. The commencement, conduct or continuance of any non-storm water discharge to the MS4 is prohibited. Discharge of storm water in any manner in violation of this chapter; or any violation of any condition of a permit issued pursuant to this chapter; or any violation of any condition of a storm water discharge permit issued by TDEC is hereby declared a public nuisance and shall be corrected or abated.
a. It shall be unlawful for any person to improperly dispose any contaminant into the MS4. Penalties for minor discharges that have no significant adverse impact on safety, health, the welfare of the environment, or the functionality of the MS4 may be waived at the discretion of the Manager. Contaminates include, by way of example but are not limited to, the following:
b. Dye testing is permitted but requires verbal notification to the Manager a minimum of twenty-four (24) hours prior to the date of the test. The City of Memphis, Shelby County and City of Bartlett governmental agencies are exempt from this requirement.
c. Junk motor vehicle means any vehicle which shall include by way of example but not be limited to the following vehicle types: automobiles, construction equipment, motorcycles, and trucks, which meet all of the following requirements:
(3) Allowable discharges. The following types of uncontaminated discharges shall not be considered prohibited discharges for the purpose of this chapter unless the Manager determined that the type or quantity of discharge, whether singly or in combination with others, is causing significant contamination of the MS4.
(4) Prohibition of illicit connections. Any connection, existing or future, identified by the Manager as that which could convey anything not composed entirely of storm water, with the exception of connections of allowable discharges in §14-205(3) and connections conveying discharges pursuant to a NPDES permit (other than an NPDES storm water permit), directly to the MS4 is considered an illicit connection of which the construction, use, maintenance or continued existence is prohibited. Existing illicit connections shall be stopped at the owner’s expense.
(5) Reduction of storm water pollutants by use of BMPs. Any person responsible for a property or premises which is or may be the source of an illicit discharge, may be required to implement, at that person’s expense, the BMPs necessary to prevent further discharge of pollutants to the MS4. Compliance with all terms and conditions of a valid NPDES permit authorizing the discharge of storm water from an industrial activity, to the extent practicable, shall be deemed in compliance with the provisions of this section.
(6) Notification of spills. Notwithstanding other requirements of law, as soon as any person responsible for a facility or operation, or responsible for emergency response for a facility or operation, has information of any known or suspected release of materials which are resulting in, or may result in, illicit discharges or pollutants discharging into the MS4, the person shall take all necessary steps to ensure the discovery, containment, and cleanup of such release. In the event of such a release of hazardous materials the person shall immediately notify emergency response agencies of the occurrence via 911. In the event of a release of non-hazardous materials, the person shall notify the Manager in person or by telephone, fax, or email, no later than the next business day. Notifications in person or by telephone shall be confirmed by written notice addressed and mailed to the Manager within three (3) business days of the telephone notice. If the discharge of prohibited materials emanates from a commercial or industrial establishment, the owner or operator of such establishment shall also retain an on-site written record of the discharge and the actions taken to prevent its recurrence. Such records shall be retained for at least three (3) years.
(7) Illegal dumping. No person shall dump or otherwise deposit outside an authorized landfill, convenience center or other authorized garbage or trash collection point, any trash or garbage of any kind or description on any private or public property, occupied or unoccupied, inside the City.
(1) As-built plans. All operators shall submit as-built plans for all permanent storm water management structures after final construction is completed to the City’s Department of Engineering and Utilities. The plans must show the final flow line elevations, slopes, locations and/or design specifications for all storm water management facilities, as applicable for the facility, and must bear the seal of a registered professional engineer licensed to practice in the State of Tennessee. The registered professional shall certify that the facilities have been constructed in substantial and essential conformance to the design plan. The Director is hereby empowered to retain or cause to be retained bonds, letters of credits, withholding of use and occupancy permits or other sureties as the Director deems appropriate until proper as-built plans have been delivered.
(2) Erosion control phasing plan and stabilization requirements. Any area of land from which the natural vegetative cover has been either partially or wholly cleared by a construction activity shall be stabilized. Stabilization measures shall be initiated as soon as possible in portions of the site where construction activities have temporarily or permanently ceased.
a. Temporary or permanent soil stabilization at the construction site (or a phase of the project) must be completed not later than 15 days after the construction activity in that portion of the site has temporarily or permanently ceased. Natural or created slopes three to one (3 to 1) or steeper shall be temporarily stabilized not later than seven (7) days after construction activity on the slope has temporarily or permanently ceased. In the following situations, temporary stabilization measures are not required:
i. where the initiation of stabilization measures is precluded by snow cover or frozen ground conditions or adverse soggy ground conditions, stabilization measures shall be initiated as soon as practicable; or
ii. where construction activity on a portion of the site is temporarily ceased, and earth disturbing activities will be resumed within 15 days or seven (7) days for slopes three to one (3 to 1) or steeper.
b. Permanent stabilization with perennial vegetation (using native herbaceous and woody plants where practicable) or other permanently stable, non-eroding surface shall replace any temporary measures as soon as practicable. The City’s Standard Specifications contains grass seed mix and planting schedules. Unpacked gravel containing fines (silt and clay sized particles) or crusher runs will not be considered a non-eroding surface. Slopes three to one (3 to1) or steeper shall be solid sodded.
c. The following criteria shall apply to re-vegetation efforts:
i. Reseeding must be done with an annual or perennial cover crop accompanied by placement of straw mulch or its equivalent of sufficient coverage to control erosion until such time as the cover crop is established over ninety percent (90%) of the seeded area.
ii. Replanting with native woody and herbaceous vegetation must be accompanied by placement of straw mulch or its equivalent of sufficient coverage to control erosion until the plantings are established and are capable of controlling erosion.
iii. Any area of re-vegetation must exhibit survival of a minimum of seventy-five percent (75%) of the cover crop throughout the year immediately following re-vegetation. Re-vegetation must be repeated in successive years until the minimum seventy-five percent (75%) survival for one (1) year is achieved.
(3) Right of access. The owner(s) shall maintain a perpetual right of access for inspection and emergency access by the City. The City has the right, but not the duty, to enter premises for inspection and emergency repairs.
(4) Inspection of storm water management facilities. Periodic inspections of facilities shall be performed, documented, and reported in accordance with this chapter, as detailed in §14-208.
(5) Records of installation and maintenance activities. Parties responsible for the operation and maintenance of a storm water management facility shall make records of the installation of the storm water facility and of all maintenance and repairs to the facility, and shall retain the records for at least three (3) years. These records shall be made available to the City during inspection of the facility and at other reasonable times upon request.
(6) Infrastructure maintenance. It shall be the responsibility of the property owner of record for the maintenance of storm water infrastructure. Maintenance of storm water infrastructure consists of a minimum but is not limited to the following items as they apply to the specific storm water facility: outlet cleaning, mowing, herbicide spraying, litter control, removal of sediment from basin and outlet structures, repair of drainage structures, and other items that may be included in the facilities maintenance and repair plan. All such activities will be conducted in an environmentally sound manner and consistent with applicable codes, rules, and/or standards. No modifications shall be made to open ditches or other wet weather conveyances without coordination with the Director. All storm water management control facilities proposed by the owners and approved by the Director for dedication as a public facility shall be maintained by the owner until such time as the Director accepts the facilities. Upon acceptance, the facilities shall be publicly owned and /or maintained.
(7) Maintenance documents. Maintenance requirements for new privately owned permanent storm water management facilities may also be prescribed by a site-specific document between the owner or operator and the City. This document shall be based on an approved site design, a SWPPP, an inspection program (see §14-208), a long-term maintenance plan to include the requirements listed in §14-207(6), an emergency repair plan, easements, and proof or surety of financial responsibility. Approved maintenance documents shall be recorded in the Shelby County Register’s office and shall act as a property deed restriction to ensure maintenance and repair responsibilities are carried out in perpetuity.
(8) Failure to meet or maintain design or maintenance standards. If a responsible party fails or refuses to meet the design or maintenance standards required for storm water facilities under this chapter, the City, after reasonable notice, may correct a violation of the design standards or maintenance needs by performing all necessary work to place the facility in proper working condition. In the event that the storm water management facility becomes a danger to public safety or public health, the City shall notify in writing the party responsible for maintenance of the storm water management facility. Upon receipt of that notice, the responsible person shall have thirty (30) days to effect maintenance and repair of the facility in an approved manner. In the event that corrective action is not undertaken within that time, the City may take necessary corrective action. The cost of any action by the City under this section shall be charged to the responsible party. Additionally, the Director may assess penalties as detailed in §14-211. Such an assessment will be used for cost recovery, to abate damages, and to restore impacted areas.
(1) Monitoring. The Manager shall periodically monitor compliance of the storm water NPDES permit holder.
(2) Detection of illicit connections and improper disposal. The Manager shall take appropriate steps to detect and eliminate illicit connections to the MS4, including the adoption of programs to identify illicit discharges and their source or sources and provide public education, public information and other appropriate activities to facilitate the proper management and disposal of used oil, toxic materials and household hazardous waste.
(3) Inspections.
a. The Manager or a municipal inspector, bearing proper credentials and identification, may enter properties for inspections, investigations, monitoring, observation, measurement, enforcement, sampling and testing, to effectuate the provisions of this chapter and/or the NPDES storm water permit. The Manager or the municipal inspector shall duly notify the owner of said property or the representative on site and the inspection shall be conducted at reasonable times.
b. Upon refusal by any property owner to permit a municipal inspector to enter or continue an inspection, the inspector shall terminate the inspection or confine the inspection to areas wherein no objection is raised. The inspector shall immediately report the refusal and the circumstances to the Manager.
c. In the event the Manager reasonably believes that discharges into the MS4 may cause an imminent and substantial threat to human health or the environment, an inspection may take place at any time and without notice to the owner of the property or a representative on site. The municipal inspector shall present proper credentials upon request by the owner or representative.
d. At any time during the conduct of an inspection or at such other times as the Manager or municipal inspector may request information from an owner or representative, the owner or representative may identify areas of the facility or establishment, material or processes which contains or may contain a trade secret. If the Manager or the municipal inspector has no clear and convincing reason to question such identification, the inspection report shall note that trade secret information has been omitted. To the extent practicable, the Manager shall protect all information that is designated as a trade secret by the owner or their representative.
Whenever the manger finds any permittee or person discharging storm water, or other pollutants into the MS4 or otherwise has violated or is violating this chapter, conditions of a storm water permit, or order issued hereunder, the Manager may use enforcement response and abatement actions specified herein to achieve compliance. Although enforcement and abatement actions should be progressively applied until compliance is achieved, enforcement actions may be administered in any sequence as the Manager deems appropriate for the violation. If the Manager deems it necessary, a complaint may be filed with the Commissioner of TDEC pursuant to TCA §69-3-118.
(1) Administrative remedies. The enforcement remedies enumerated herein shall be applicable to all sections of this chapter.
a. Verbal Warnings. Municipal inspectors are hereby empowered to administer verbal warnings, of which shall be considered as being the same as issued by the Manager. A verbal warning may be given at the discretion of the inspector when it appears the condition can be corrected by the violator within a reasonable time, which time shall be approved by the inspector. A verbal warning may be issued upon the first instance of a violation. In most cases, it isn’t the intention of the violator to commit an offense but they are unaware of the ordinance requirements. A verbal warning acts, in this instance, as an educational tool. Violations encountered during routine inspections of construction activities are normally handled verbally. When a verbal warning is utilized, the warning shall specify the nature of the violation and the required corrective action, with deadlines for taking such actions. A verbal warning in no way relieves the discharger of liability for any violations occurring before or after receipt of the warning.
b. Written Notices. Written notices shall stipulate the nature of the violation and the required corrective action, with deadlines for taking such actions. Written notices shall normally be used starting with the least severe and progressively working to the most severe. Written notices shall be in the following forms:
i. Notice of non-compliance (NON). Municipal inspectors are hereby empowered to administer NONs, of which shall be considered as being the same as issued by the Manager. A NON is a written follow-up to a verbal warning and is initiated when corrective actions have not been accomplished by the deadline provided in the verbal warning. A NON is also utilized to report violations encountered during construction activity compliance inspections. A NON in no way relieves the discharger of liability for any violations occurring before or after receipt of the NON.
ii. Notice of violation (NOV). A NOV is a follow-up to a NON and is initiated when corrective actions have not been accomplished by the deadline provided in the NON. This notice shall be by personal service, or registered or certified mail with return receipt. Within ten (10) days of the receipt date of the notice or by the date specified in the NOV, the recipient of this NOV shall provide the Manager with a written explanation for the violation. The response shall also include a plan for satisfactory correction and prevention thereof, to include specified required actions and milestones for completion. Submission of this plan in no way relieves the discharger of liability for any violations occurring before or after receipt of the NOV.
c. Consent agreement. The Manager is hereby empowered to enter into consent agreements, assurances of voluntary compliance, or other similar documents establishing an agreement with the person or persons responsible for non-compliance. Such agreements will include specific action to be taken by the permittee or person discharging storm water to correct the non-compliance within a time period specified by the agreements. Consent agreements shall have the same force and effect as compliance orders issued pursuant to §14-211(1)(d).
d. Compliance order. When the Manager finds that any person has violated or continues to violate this chapter or any other order issued hereunder, he may issue an order to the violator directing that, following a specified time period, adequate structures and/or devices be installed or procedures implemented and properly operated or followed. Orders may also contain such other requirements as might be reasonably, necessary and appropriate to address the non-compliance, including the construction of appropriate structures, installation of devices, self-monitoring and related management practices. Compliance orders are normally a component of the NOV or stop work order.
e. Withholding of approvals or other authorizations. The Director is hereby empowered to withhold or cause to be withheld any permits, plat recordings, bond releases or any other instrument that would normally be issued to the violator until such time as the violations cease. Withholding may be performed in conjunction with other enforcement actions as deemed appropriate by the Manager.
(2) Civil and administrative penalties.
a. Any person who performs any of the following acts or omissions shall be subject to a civil or administrative penalty of not less than fifty dollars ($50.00) or more than five thousand dollars ($5,000.00) per day for each day during which the act or omission continues to occur. Each day a violation is allowed to continue constitutes a separate offence (TCA §68-221-1106).
i. Violates an effluent standard or limitation or water quality standard established under this chapter or established by TCA Title 69, Chapter 3, Part 1 (State of Tennessee Water Quality Control Act).
ii. Fails to obtain any required permit;
iii. Violates the terms and conditions of such required permit in subsection ii above;
iv. Fails to allow or perform an entry, inspection, monitoring or reporting requirement;
v. Violates a final determination or order of the Manager or the Storm Water Board of Appeals; or
vi. Violates any provision of this chapter.
b. Attachment 1 provides initial assessments for violations of this ordinance that may be assessed by the Director. Chronic violators may be assessed up to the maximum amount permitted by TCA §68-221-1106. Additionally, the Director, with consent of the Mayor, may initiate civil proceedings in any court of competent jurisdiction seeking monetary damages for damages caused to the MS4 by any person, and to seek injunctive or other equitable relief to enforce compliance, with any lawful orders of the Manager.
(3) Unlawful acts, misdemeanor. It shall be unlawful for any person to knowingly:
a. Violate a provision of this chapter;
b. Violate the provisions of any permit issued pursuant to this chapter;
c. Fail or refuse to comply with lawful notice to abate issued by the Manager, which has not been timely appealed to the Storm Water Appeals Board within the time specified by such notice; or
d. Violate any lawful order of the Manager within the time allowed by such order. Such person shall be guilty of a misdemeanor; and each day of such violation or refusal to comply shall be deemed a separate offense and punishable accordingly. Any person found to be in violation of the provisions of this chapter shall be punished by a fine as set out in Part II, Chapter 1, Section 1-4, Code of Shelby County. Upon learning of such act or omission, the Manager may issue a city ordinance citation charging the person, firm, or entity with violating one (1) or more provisions of this chapter or permit issued there under, criminal violation of this chapter may also be the basis for injunctive relief, with such actions being brought and enforced through the Shelby County General Sessions Environmental Court.
(4) Processing a violation.
a. The Director may issue an assessment against any person or permittee responsible for the violation.
b. The Director may consider the following factors when assessing an administrative or civil penalty (TCA §68-221-1106(b)):
c. The Director may also assess damages proximately caused by the violator to the City which may include any reasonable expenses incurred in investigating and enforcing violations or any other actual damages caused including but not limited to costs involved in rectifying damages, costs of the City’s maintenance of storm water facilities when the user of such facilities fails to maintain them as required by this chapter and costs (direct and indirect) and attorney’s fees incurred as a result of illegal activities.
d. Any person against whom an assessment or order has been issued may secure a review of such assessment or order by filing with the Manager a written appeal setting forth the specific legal and technical grounds and reasons for his objections and asking for a hearing in the matter involved before the Storm Water Board of Appeals. Applications for appeals must meet the requirements specified in §14-212. If an appeal for review of the assessment, penalty and/or order is not filed within thirty (30) days after the date of the assessment, penalty and/or order is served, the violator shall be deemed to have consented to the assessment and it shall become final.
e. Whenever any assessment or penalty has become final because of a person’s failure to appeal, the Director may apply to the appropriate court for judgment and seek execution of such judgment and the court, in such proceedings, shall treat a failure to appeal such assessment as a confession of judgment in the amount of the assessment (TCA §68-221-1106(e)).
f. Any civil penalty assessed to a violator pursuant to this section may be in addition to any civil penalty assessed by the Commissioner of TDEC in accordance with TCA §69-3-115; however, the sum of penalties imposed by this section and by the TCA §69-3-115 shall not exceed ten thousand dollars ($10,000.00) per day for each day during which the act or omission continues or occurs.
(5) Appeal judicial proceedings and relief. The Manager may initiate proceedings in any court of competent jurisdiction against any person who has or is about to:
(6) Damages, disposition of funds. All damages collected under the provisions of this chapter and civil penalties collected under the provisions of §14-211(4) following the adjustment for the expenses incurred in making such collections shall be allocated and appropriated to the Storm Water Management Program of the City of Bartlett.
(7) Records retention. All dischargers subject to this chapter shall maintain and preserve for no fewer than five (5) years, all records, books, documents, memoranda, reports, correspondence and any and all summaries thereof, relating to monitoring, sampling, and chemical analysis made by or in behalf of the discharger in connection with its discharge. All records which pertain to matters which are subject of any enforcement or litigation activities brought by the City pursuant hereto shall be retained and preserved by the discharger until all enforcement activities have concluded and all periods of limitation with respect to any and all appeals have expired.