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HomeMy WebLinkAboutRES 04-262 RESOLUTION NO. 04-262 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager is hereby authorized to execute an Interlocal Agreement with the Texas Department of Transportation (Tx DOT) regarding the National Pollutant Discharge Elimination System (NPDES) Permit for Storm Water Discharges. The agreement is substantially in the form attached hereto as Exhibit "A" and made a part hereof for all purposes. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 9th day of November, 2004. �i May Pro Tern Becky Ames - Z' � . Page 1 of 10 Agreement STATE OF TEXAS § POLLUTANT DISSCHARGE ELIMINATION SYSTEM BEAUMONT § PERMIT FOR STORM WATER DISCHARGES This Agreement is entered into the day of ,2004,by and between the CITY OF BEAUMONT, hereinafter referred to as the City, and the STATE OF TEXAS, acting by and through the TEXAS DEPARTMENT OF TRANSPORTATION,hereinafter referred to as the State. WHEREAS the United States Environmental Protection Agency (EPA) has promulgated regulations in 40 CFR §122.26 requiring National Pollutant Discharge Elimination System (NPDES) permit for storm water discharge to waters of the United States to be obtained by categorically defined or designated operators of municipal separate storm water sewer systems(MS4s);and WHEREAS both the City and the State each own and operate an MS4 requiring NPDES permit for discharge of storm waters;and WHEREAS the City and the State have individually been issued NPDES permit for the discharge of storm waters from their respective MS4s;and WHEREAS the MS4 operated by City and the MS4 operated by State are interconnected;and WHEREAS the MS4 operated by the State lies within the corporate boundaries of the City;and WHEREAS it is to the mutual benefit of both the City and the State to facilitate and enable compliance by the City and by the State to their respective NPDES permits by coordinating their activities in the subsequent operation of their respective MS4s and the implementation of their respective storm water management programs;and WHEREAS to facilitate and promote such coordination the City and the State desire to set forth their understandings of their obligations, rights, and responsibilities regarding such coordination of activities as they may affect both or either the City and the State;and WHEREAS both the City and the State desire to make commitment to those understandings and confirm to each other and other interested parties such commitment; NOW, THEREFORE, for and in consideration of the premises and the mutual covenants and agreements hereinafter set forth and in consideration of the mutual benefits to be realized by the City and the State(hereinafter sometimes referred both to as the"parties"or individually as a"party"), the City and the State hereby agree as follows,to wit: 1. Individual Responsibility for Compliance. Except as may be provided herein or in other agreement between the City and the State or except as may be provided in State statute or regulation,each of the parties is each individually responsible for compliance to their respective and individual NPDES permit for discharge of storm water; and that further, each of the parties shall not hold the other party liable for lack of action or activity on their own part which may result in noncompliance to their own NPDES permit, unless such action or activity was required by the other party pursuant to this Agreement. U:\fuzzys\MS4\BMT NPDES Storm water Final 13 Oct 04.doc 10/14/04 EXHIBIT "A" Agreement Page 2 of 10 2. Boundaries of Agreement. The parties agree that this Agreement extends to but not beyond the corporate boundaries of the City as is currently defined or as may be defined in the future. 3. Responsibility for Drainage Facilities Operation. Each party is responsible for the construction, operation,maintenance, and inspection of storm water drainage conveyances and facilities that it owns and operates, subject to regulations in 43 TAC §§ 7.31, 25.8, and other applicable State regulations and statutes. 4. Facilities Within State Right-of-way(ROW).The State is responsible for operation and maintenance of all property and facilities that the State owns within any and all State highway ROW except to the extent otherwise provided in State statute or regulation or in a Municipal Maintenance Agreement between the City and the State.Not withstanding such Municipal Maintenance Agreement,the State is responsible for any consequences of operation or maintenance of any property and facilities that the State owns within any and all State highway ROW that may result in violation of the State's NPDES permit. 5. Operation and Maintenance In ROW In Compliance with Permit. The State is responsible for operation and maintenance of all storm water drainage facilities that the State owns within any and all State highway ROW in a manner which is compliant with the NPDES permit issued to the State, but the State is not responsible for operation or maintenance of storm water drainage facilities not lying within State ROW. The City shall be not be held liable by the State for actions or activities occurring in the State highway ROW which are noncompliant with the NPDES permit issued to the State; nor shall the State be held liable by the City for actions or activities occurring outside of the State highway ROW which are noncompliant with the NPDES permit issued to the City. 6. State to Recognize City Ordinance Controls. The State shall abide by ordinances the City may establish for control of the discharge of pollutants in storm waters as they may apply to discharges from or in State ROW. The City shall provide to the State in timely fashion any copy of ordinance it may have at the time of acceptance of this Agreement that would affect the operation or maintenance of State highway ROW in so far as such operation or maintenance might affect or be effected by storm water discharges or discharge of pollutants to, in,or from State highway ROW. The City shall notify the State of any proposal presented to the City Council for adoption at a time before adoption by the City Council for any ordinance which may affect or be affected by operation and maintenance of State highway ROW or the discharge of storm water or storm water pollutants to, in, or from State highway ROW. U Afuzzys\MS4\BMT NPDES Storrs Water Final l3 Oct 04.doc 10/14/04 Agreement Page 3 of 10 7. Illicit Discharge Identification. The State shall report to the City in a timely fashion, in manner prescribed by the City, occurrences, or evidences of, any and all illicit discharges that the State may find that (1) occur in or enter into the State's MS4 on State highway ROW, (2) discharge from the City's MS4 into or across the boundaries of State highway ROW, or (3) discharge from the State's MS4 into waters of the United States, the City's MS4, or the MS4 of any co-applicant of the City's NPDES permit. Such illicit discharges shall include any discharges that are prohibited by the State's NPDES permit,the City's NPDES permit,and any City ordinance. S. Elimination of Illicit Discharge. The City upon notice by the State,in manner prescribed by the City, of the occurrence or evidence of an illicit discharge in, into, or from State ROW, shall exercise its existent inspection and enforcement powers under law,regulation,or ordinance and in accord with the City's NPDES permit to eliminate such illicit discharge in a timely manner. In exercise of these inspection and enforcement powers by the City to eliminate such illicit discharge, the State shall not impede the City in the timely exercise of those powers. 9. Prevention of Improper Disposal. Both parties shall maintain individual programs to promote prevention of improper disposals, except that activities for the prevention of improper disposals conducted by the State for the purpose of prevention of spills on State ROW shall be adequate and satisfactory for compliance to the NPDES permits of both the State and the City. Other joint programmatic activities by the City and the State may be undertaken from time to time as deemed desirable by both parties. The sharing of costs for such joint activities shall be determined on a case- by-case basis and by separate agreement distinct from this Agreement. 10. Improper Disposal Identification. Identification of improper disposals in, into, or from State highway ROW shall be reported to the City in a manner similar to illicit discharges if such disposal is not a floatable or similar item of trash, debris, or waste normally and regularly removed by roadside cleanup crews of the State, or other parties providing such cleanup crews through agreement with the State, and rapid removal of the floatable or similar item is judged by the State, or other parties providing such cleanup crews through agreement with the State, not necessary for prevention of a significant discharge of pollutants to the City's MS4 or waters of the United States, except in no case shall a report to the City not be provided if the floatable or similar item of trash,debris,or waste is or can be reasonably believed to be hazardous. 11. Improper Disposal Elimination. The City shall take undertake actions to prevent the reoccurrence or continuation of an improper disposal by the City in a manner similar to elimination of an illicit discharge when an improper disposal is reported to the City by the State. Physical removal of the residuals of an improper disposal which exist in State ROW shall be the responsibility of the State U:\fuzzys\MS4\BMT NPDES Storm Water Final 13 Oct 04.doc 10/14/04 Agreement Page 4 of 10 unless such materials are hazardous or their removal, because of their physical or chemical characteristics,require the use of spill response procedures. 12. Spill Prevention. Both parties shall maintain individual programs for spill prevention in a manner and form satisfactory for compliance to their respective NPDES permits. Other joint programmatic activities by the City and the State may be undertaken from time to time as deemed desirable by both parties. The sharing of costs for such joint activities shall be determined on a case-by-case basis and by separate agreement distinct from this Agreement. 13. Spill Response. For spills that occur on State ROW, the State shall recover costs for spill response and cleanup to the extent feasible and possible from the person or persons responsible for the spill to the extent that such person or persons responsible for such spill can be identified. In the event a spill occurs which requires response by the City and the State is responsible for such spill, the State shall bear the full cost incurred by the City for such response and cleanup of the spill in amount consistent and similar with spill response and cleanup cost recovery from other persons or entities. 14. Flood Control. The State shall in its operation and maintenance of State highway ROW recognize, abide by, and utilize plans,procedures, guidance,and programs the City or a co-applicant to the City's NPDES permit has or may develop for incorporating water quality considerations into flood control planning and projects in so far as such plans,procedures, guidance and programs affect or are affected by the operation and maintenance of State highway ROW or the discharge of pollutants to, in,or from State highway ROW. The City shall notify the State in a timely fashion of such plans, procedures, guidance, and programs it may have or develop to the extent such plans, procedures, guidance, and programs may affect or be affected by operation and maintenance of State highway ROW or the discharge of storm water or storm water pollutants to,in,or from State highway ROW. The City shall take under advisement and consider in a timely fashion any comments that may be received from the State for the purpose of possible modification or revision of plans,procedures, guidance and programs the City has or may develop for incorporating water quality considerations into flood control planning and projects in so far as such plans, procedures, guidance, or programs affect or are affected by the operation or maintenance of State highway ROW. 15. Development and Significant Redevelopment. In City areas where State highway ROW lies in, is adjacent to,or is in close proximity to areas of existent or anticipated new development or significant redevelopment, the State will, in its design, operation, and maintenance of State highway ROW and highways in such State highway ROW, recognize and incorporate to the extent feasible plans, specifications, procedures, guidances, or programs the City has or may develop for prevention, reduction, elimination or control of discharge of pollutants to the extent such plans, specifications, U:\fuzzvs\MS4\BMT NPDES Storm Water Final 13 Oct 04.doc 10/14/04 Agreement Page 5 of 10 procedures, guidances, or programs may affect or be affected by discharges in, to, or from State highway ROW. The State will notify the City and provide to the City of plans to design, operate, or maintain State highways within the corporate boundaries of the City in areas of, adjacent to, or close proximity to new development or significant redevelopment for the purpose of recognizing and incorporating to the extent feasible plans,specifications,procedures,guidances,or programs that could be expected to eliminate or significantly reduce the discharge of pollutants in or from State highway ROW, or could be reasonably expected to reduce the discharge of pollutants in areas not in State highway ROW but significantly affected by the operation or maintenance of State highway ROW. The City will notify the State of City activities in the development, preparation, or adoption of plans, specifications, procedures, guidances, or programs pertaining to development or significant redevelopment for the elimination, reduction, or control of the discharge of pollutants to the extent such plans, specifications, procedures, guidances, or programs could be reasonably expected to affect the operation and maintenance of State highway ROW and the design of highways and facilities therein. Comment on the City's plans,specifications,procedures,guidances,or programs by the State does not transfer liability to the City for compliance by the State to the State's NPDES permit in regard to development and redevelopment. Comment on the State's designs, operation, or maintenance of State highway ROW in areas of development and significant redevelopment does not transfer liability to the State for compliance by the City to the City's NPDES permit in regard to development and redevelopment. 16. Public Education, Awareness, and Involvement. Both parties shall maintain programs for public education and awareness of storm water impacts and utilize public involvement in implementation of their storm water management programs in manner compliant with and to the extent required by their respective NPDES permits. The State shall maintain and conduct such programs and utilize such public involvement in a manner sufficient at least to meet public education, awareness, and involvement requirements that may be required of the City by the City's NDPES permit to the extent such public education, awareness, and involvement requirements pertain to or affect State highway ROW and discharges in or from State ROW. The City shall maintain and conduct programs of public education, awareness, and involvement in a manner consistent and in accord with State programs of public education, awareness, and involvement in so far as such programs pertain to or affect State ROW and discharges in, into, or from State ROW. Joint programmatic activities by the City and the State may be undertaken from time to time as deemed desirable by both parties. The sharing of costs for such joint activities shall be determined on a case-by-case basis and by separate agreement distinct from this Agreement. 17. Implementation of Construction Best Management Practices (BMPs). The State shall conduct its construction activities and require that the construction activities of its contractors on State highway U:\fuzzysWlS4\l3MT NPDES Storm Water Final 13 Oct 04.doc 10/14/04 Agreement Page 6 of 10 ROW be conducted in a manner so as to prevent to the maximum extent practicable the discharge of pollutants from construction activities. The State shall abide by any ordinance the City may have or adopt which regulates or otherwise seeks to control the discharge of pollutants by storm waters from construction activity to the extent such ordinance may apply to State highway ROW within the corporate boundaries of the City. The City shall in application and enforcement of ordinance pertaining to storm water discharges from construction activities occurring in State ROW recognize and accept, to the maximum extent compliant with City NPDES permit requirements, as equivalent, for purposes of ordinance compliance,BMPs implemented by the State for the control and elimination of storm water discharges from construction activities to BMPs that may be required by City ordinance. 18. Permit of Grading Activities. To the extent that City ordinance may require application for City permit of grading activities, the City shall accept such application by the State for grading in State highway ROW in a form which facilities single application for grading activities which are generally associated with or arise as a consequence of comprehensive or interconnected projects, such application being made in content consistent with City requirements and guidelines. 19. BMP Program for Construction. To the extent that City ordinance may require a storm water pollution prevention plan for construction activities in State highway ROW, the City shall accept the storm water pollution prevention plan the State may have as a consequence of or pursuant to NPDES permit or EPA regulation for discharge of storm water from construction activities. If City ordinance requires a storm water pollution plan or similar pollution control plan for discharge of storm waters from a construction site for which there is no NPDES permit or EPA regulation requirement or for which there are requirements not contained in such NPDES permit or EPA regulation requirements, the City may accept, upon review and approval by the City Engineer, a plan consistent in content with City ordinance and guidelines which may be utilized for more than a construction project in State highway ROW. 20. Construction Inspection. The City will utilize State construction inspection activities for assurance of compliance to City ordinance by the State and any and all of its contractors conducting construction activities in State highway ROW to the extent such ordinance may apply to construction activities conducted in State highway ROW, provided: (1) inspection by the State is documented to the satisfaction of the City and the City is provided in timely fashion copies of such documentation;(2)the character of such inspection is consistent in at least extent, detail, frequency, occurrence, and content with inspection by City inspectors were City inspectors to make such inspection; (3) inspection by the State is made by State inspectors who have received training or instruction in requirements for construction that may exist in City ordinance as it may apply to construction in State highway ROW,to UAfuzzys\MS4\BMT NPDES Storm Water Final 13 Oct 04.doc 10/14/04 Agreement Page 7 of 10 the extent such requirements differ from State requirements; (4) that State inspectors utilize powers of cessation or shutdown of construction activities if compliance to BMP requirements by State construction contractors cannot be achieved with reasonable notice of deficiency or inadequacy of BMP implementation by construction contractors conducting construction on State highway ROW; and (5) that the City reserves the right to enforce provisions of City ordinance as they pertain to construction in State highway ROW, with the recognition that such enforcement shall to the extent feasible be made in consultation with the State for the construction activity for which enforcement activities are being considered. 21. Prevention and Elimination of Sanitary Sewer Inflows to MS4. The City shall have a program to prevent and eliminate unpermitted discharge of dry and wet weather overflows from sanitary sewers owned by the City into the State's MS4, such program to include sanitary sewers entering,terminating, or crossing State highway ROW or discharges from sanitary sewers to, in, or from the State's MS4. The City shall inform the State in a timely fashion of activities the City is undertaking and is planning to undertake to eliminate such overflows and infiltration of seepage from sanitary sewers into the State's MS4. The City shall receive and consider in a timely fashion comments made by the State in a timely fashion on such program and activities as they may affect or be affected by discharges in, to, and from State highway ROW. The State shall inform the City in a timely fashion of construction, operation, and maintenance activities in State highway ROW which have reasonably potential for contributing to or causing the discharge of unpermitted dry or wet weather overflows or infiltration of seepage from sanitary sewers into the State's MS4 or the City's MS4. The State shall inform the City in a timely fashion of construction, operation, or maintenance activities in State highway ROW which offer the potential for facilitating the remedy or elimination of the discharge of unpermitted dry or wet weather overflows or infiltration of seepage from sanitary sewers into the State's MS4 or the City's MS4. 22. Floatables Monitoring. If one or more floatables monitoring sites can be jointly, feasibly, and effectively used to comply to the individual NPDES permit requirements of both parties for floatables monitoring, and should both parties agree separately from this Agreement to make such joint use of such floatables monitoring sites,the results of such floatables monitoring sites shall be shared by both parties and neither party shall be prohibited by the other party from making use of the results of such monitoring. . The costs for maintaining, operating, and monitoring such joint sites shall be borne equally by both parties, unless another agreement separate from this Agreement for sharing costs is made. 23. Storm Water Monitoring. If one or more storm water monitoring sites can be jointly, feasibly, and effectively used to comply to the individual NPDES permit requirements of both parties for storm U:\fuzzys\MS4\BMT NPDES Storm Water Final 13 Oct 04.doc 10/14/04 Agreement Page 8 of 10 water monitoring,and should both parties agree separately from this Agreement to make such joint use of such storm water monitoring sites, the results of such storm monitoring at the site or sites jointly used shall be shared by both parties and neither party shall be prohibited by the other party from making use of the results of such monitoring. The costs for maintaining, operating, monitoring such joint sites and the costs for laboratory evaluation of samples shall be borne equally by both parties, unless other agreement separate from this Agreement for sharing of costs is made. 24. Annual Report. No later than thirty days upon receiving a written request,each party shall provide to the other a copy of the annual report required by their respective NPDES permit to be submitted to the EPA. 25. City to Hold State Harmless. To the extent permitted by law, the City agrees to indemnify and hold harmless the State for any monetary fines or penalties imposed against the State for NPDES permit violations resulting from failure of the City to comply with the terms of this Agreement. 26. State to Hold City Harmless.To the extent permitted by law,the State agrees to indemnify and hold harmless the City for any monetary fines or penalties imposed against the City for NPDES permit violations resulting from failure of the State to comply with the terms of this Agreement. 27. State ROW. All reference to ROW herein shall be deemed to mean State highway right-of-way within the corporate limits of the City, but shall exclude ROW which is not defined, specified, described, or otherwise identified by NPDES permit or EPA regulation as having storm water discharges or an MS4 requiring NPDES permit. 28. Successor Agencies. All references herein to the EPA as the permitting agency issuing and enforcing the NPDES permits of the parties, approving this Agreement, approving the termination of this Agreement, or otherwise affecting this Agreement shall be deemed to mean, as well, any other federal agency or agencies that may succeed to the EPA's authority,any permitting agency or entity issuing an NPDES permit to either or both parties, as well as the Texas Commission on Environmental Quality (TCEQ)or any successor agency to it if the TCEQ or its successor is delegated authority to administer the NPDES program or the NPDES permit or permits of the either or both parties. 29. Permit Equivalence. All references herein to the NPDES permit shall deemed to mean a National Pollutant Discharge Elimination System permit for the discharge of storm waters from a municipal separate storm sewer system as defined by EPA regulation and, as well, any permit for discharge of storm water from a municipal separate storm sewer system that may be issued by the TCEQ or successor agencies. U:\fuzzys\.MS4\BMT NPDES Storm Water Final 13 Oct 04.doc 10/14/04 Agreement Page 9 of 10 30. Amendments to Agreement. In the event that a review by both parties determines that amendment to this Agreement or attachments thereto to is desired, such amendment shall made and become part of this Agreement upon written acceptance by the parties, such acceptance being deemed full and adequate notification to both parties as to the nature, conditions, terms,or other information contained in such amendment. Such amendment shall become effective upon final signatures of the City and the State. 31. Procedures for Termination of Agreement. This Agreement may be terminated by any of the following procedures: A. By mutual consent of the signatories,after notice of a minimum of thirty days to the EPA. B. By either party,upon notice of the party seeking termination to the other party and to the EPA of at least ninety days, such notice setting out the reason or cause for the termination. C. By either party,upon notice of the party seeking termination to the other party and to the EPA of at least thirty days if any provision of this Agreement is held to be invalid, illegal, or unenforceable by EPA or any court of competent jurisdiction. 32. Termination and Voidance If No NPDES Permit. This agreement shall terminate and become immediately void if either party has no NPDES permit for discharge of storm waters from its MS4. 33. Change In Permit Status. In the event both parties become co-applicant to the same NPDES permit for discharge of storm waters from their respective MS4, this agreement shall remain in effect unless terminated by both parties or either party in manner as prescribed herein. 34. Severability. In any case one or more provisions contained in this Agreement shall for any reason be held invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal,or unenforceable provision had never been contained herein. 35. Agreement Complete In and Of Itself. This Agreement contains a complete expression of the agreement between the parties, and both parties understand there are no promises, representations, or inducements except provided herein, and that the terms of this Agreement cannot be varied,modified, or amended except by written agreement of the parties thereto. 36. No Waiver of Rights of Enforcement or Action. The failure of either party to exercise any right to enforce or act upon any term or condition of this Agreement in any instance shall not be deemed to UAfuzzvs\MS4\BMT NPDES Storm water Final 13 Oct 04.doc 10/14/04 Agreement Page 10 of 10 constitute a waiver of that party's entitlement to exercise any right or to enforce or act upon any term or condition of this Agreement in any other instance. 37. Subservience and Supersedence. No provision contained herein shall preclude either party from exercising its obligations or powers under statute, law, regulation, or ordinance, and no provision of this Agreement shall supersede any statute,law,applicable regulation,or applicable ordinance. 38. Written Notice. Any written notice that may be required of a party by this Agreement shall be assumed to be accomplished if said party mails or delivers with written documentation of receipt of such mail or delivery of the other party at the business address of the other party. 39. Effective Date and Duration of Agreement. This Agreement becomes effective upon signature of this Agreement by representatives of the City and the State duly authorized to make this Agreement on behalf, respectively, of the City and the State, and shall, unless terminated by one or both parties, remain in effect so long as both parties have NPDES permit for discharge of storm waters from their respective MS4. 40. Successors and Assigns. The City and the State do each hereby bind themselves, their successors, executors, administrators and assigns to each other party of this agreement and to the successors, executors, administrators and assigns of such other party in respect to all covenants of this contract. The City shall not assign, subcontract or transfer its interest in this contract without the prior written consent of the State. SIGNATORIES: Beaumont City Manager Date District Engineer,District Date UAfuzzys\MS4\l3MT NPDES Storm Water Final 13 Oct 04.doc 10/14/04