The stormwater management system operator (SMSO) shall administer,
implement, and enforce the provisions of this Part 1. Such powers
granted or duties imposed upon the authorized enforcement official
may be delegated in writing by the SMSO as may be authorized by the
Town.
A.
Enforcement.
(1)
When
the Town's SMSO finds that a person has violated a prohibition
or failed to meet a requirement of this Part 1, the SMSO may order
compliance by written notice of violation to the responsible person(s).
Such notice may require, without limitation:
(a)
The elimination of illicit connections or discharges;
(b)
That violating discharges, practices, or operations shall cease
and desist;
(c)
The abatement or remediation of stormwater pollution or contamination
hazards and the restoration of any affected property;
(d)
The performance of monitoring, analyses, and reporting;
(e)
Payment of a fine; and
(f)
The implementation of source control or treatment BMPs.
(2)
If abatement of a violation and/or restoration of affected property
are required, the notice shall set forth a deadline within which such
remediation or restoration must be completed. Said notice shall further
advise that, should the violator fail to remediate or restore within
the established deadline, the work will be done by a designated governmental
agency or a contractor and the expense thereof shall be charged to
the violator.
B.
Upon notification to a person that said person is engaged in activities
that cause or contribute to violations of the Town's MS4 SPDES
permit authorization, that person shall take all reasonable actions
to properly respond to such notification and to correct such activities
such that said activities no longer cause or contribute to violations
of the Town's MS4 SPDES permit authorization in accordance with
the procedures of this Part 1.
C.
The following notification and response procedures shall be followed
if illicit discharges or connections or activities contaminating stormwater
are identified:
(1)
As soon as the SMSO has information of any known or suspected release
of materials which is resulting or may result in illegal discharges
or pollutants discharging into the MS4, the SMSO shall immediately
contact the owner of the property in person or by telephone or facsimile
no later than the next business day. In the event of such a release
of hazardous materials, the SMSO shall immediately notify emergency
response agencies of the occurrence via emergency dispatch services
(NYSDEC Spill Hotline: 1-800-457-7362). Failure to contact the owner
or NYSDEC shall not in any way defer or cause any liability upon the
SMSO or the Town. The SMSO may indicate to the owner that all illegal
discharges are to stop immediately. The SMSO shall provide to the
property owner written notification by certified or registered mail,
return receipt requested, and shall file a copy of the notice with
the Town Clerk within five days of identification of an illicit discharge,
connection or an activity contaminating stormwater.
(2)
A written response shall be required from the person notified within
five days of receipt of the notice of violation, providing a brief
description of the intended remedy to the violation.
(3)
A detailed response and related plans showing the proposed remedy
to the violation shall be required to be prepared by the violator
or his authorized representative, with the assistance of a competent
professional, and shall be required to be submitted to the SMSO within
21 days of the receipt of the notice along with any required forms
and payment of required fees as follows:
(a)
Additional copies of the response and plans shall be provided
as required by the SMSO.
(b)
The proposed remedy shall address the purposes and intent of
this Part 1, appropriate BMPs, and all pertinent requirements and
standards contained in this Part 1.
(c)
A copy of any other applications for land disturbance or development
activities pertaining to the premises, including stormwater permits,
and any other applicable federal, state or local permits, shall be
provided.
(d)
The proposal shall include a reasonable time line for completion
of the remedial activities.
(4)
A review of the response and plans shall be conducted by the SMSO,
or an authorized representative of the SMSO, and as deemed reasonably
necessary, the response and plans may be referred by the SMSO or its
authorized representative to any engineer, planner, environmental
expert, legal counsel or other professional to assist in the review.
The SMSO may also refer the response and plans to any other officials
or representatives of the Town as deemed reasonably necessary to assist
in its review.
(5)
An on-site evaluation of the proposed remedy shall be conducted by
the SMSO, or an authorized representative of the SMSO, and/or as deemed
necessary the Town's consulting engineer and other reviewers.
(6)
The detailed response and plans shall be revised and resubmitted
for additional review, including any necessary reports or studies.
The submitted materials shall be revised as requested by the SMSO
or his authorized representative, the Town's consulting engineer
and other reviewers until all concerns have been addressed.
(7)
The SMSO shall provide authorization to proceed with the proposed
remedy, including a specific time line for completion of BMPs and
all related improvements.
(8)
The SMSO may require the violator to post a bond with the Town Board
in an amount sufficient to cover the cost of completion of the authorized
remedy. The bond amount shall be based on a cost estimate provided
by the violator and accepted as adequate by the SMSO and the Town's
consulting engineer. The bond shall specify completion of the remedy
within a period of time fixed by the Town Board and not exceeding
one year. The bond shall be a surety, cash or savings account bond
or letter of credit with security acceptable to and approved by the
Town Board as to form, sufficiency and manner of execution and upon
recommendation of the Town Attorney. The bond may be extended for
one year upon recommendation of the SMSO and the Town's consulting
engineer and approval by the Town Board.
(9)
Inspection of the premises shall be conducted by the SMSO, his authorized
representative, or the Town's consulting engineer or other professional
as deemed reasonably necessary, during and after site remediation.
D.
In addition to or as an alternative to any penalty provided in this
Part 1 or by law, any person who violates the provisions of this Part
1 shall be guilty of a violation punishable by a fine not exceeding
$350 or imprisonment for a period not to exceed six months, or both,
for conviction of a first offense; for conviction of a second offense,
both of which were committed within a period of five years, punishable
by a fine not less than $350 nor more than $700 or imprisonment for
a period not to exceed six months, or both; and upon conviction for
a third or subsequent offense, all of which were committed within
a period of five years, punishable by a fine not less than $700 nor
more than $1,000 or imprisonment for a period not to exceed six months,
or both. However, for the purposes of conferring jurisdiction upon
courts and judicial officers generally, violations of this Part 1
shall be deemed misdemeanors and for such purpose only all provisions
of law relating to misdemeanors shall apply to such violations. Each
day's continued violation as may be cited shall constitute a
separate additional violation.
Where the SMSO has identified illicit discharges or illicit connections or activities contaminating stormwater, as defined in § 188-3 and as set forth in §§ 188-5 and 188-6 above, the SMSO and Town may require implementation of best management practices (BMPs) to control those illicit discharges, connections and activities. Similarly, in response to a notice of violation, BMPs shall be employed, as necessary.
A.
The owner or operator of a commercial or industrial establishment
shall provide, at his or her own expense, reasonable protection from
accidental discharge of prohibited materials or other wastes into
the MS4 through the use of structural and nonstructural BMPs.
B.
Any person responsible for a property or premises which is, or may
be, the source of an illicit discharge or connection, or an activity
contaminating stormwater, may be required to implement, at said person's
expense, additional structural and nonstructural BMPs to reduce or
eliminate the source of pollutant(s) to the MS4.
C.
Compliance with all terms and conditions of a valid SPDES permit
authorizing the discharge of stormwater associated with industrial
activity, to the extent practicable, shall be deemed compliance with
the provisions of this section.
The following provisions apply to illicit discharges resulting
from emergency situations:
A.
The SMSO may, without prior notice, suspend MS4 discharge access
to a person when such suspension is necessary to stop an actual or
threatened discharge which presents or may present imminent and substantial
danger to the environment, to the health or welfare of persons, or
to the MS4. The SMSO shall notify the person of such suspension within
a reasonable time thereafter, in writing, of the reasons for the suspension.
If the violator fails to comply with a suspension order issued in
an emergency, the SMSO may take such steps as deemed necessary to
prevent or minimize damage to the MS4 or to minimize danger to persons.
Any costs related to the emergency actions taken by the SMSO shall
be the responsibility of the violator.
B.
Suspension due to the detection of illicit discharge. Any person discharging to the Town's MS4 in violation of the provisions of this Part 1 may have his or her MS4 access terminated if such termination would abate or reduce an illicit discharge. The SMSO will notify a violator in writing of the proposed termination of its MS4 access and the reasons therefor. The violator may petition the SMSO for a reconsideration and hearing. Access may be granted by the SMSO if the SMSO finds that the illicit discharge has ceased and the discharger has taken steps to prevent its recurrence. Access may be denied if the SMSO determines in writing that the illicit discharge has not ceased or is likely to recur. A person commits an offense if the person reinstates MS4 access to premises terminated pursuant to this section, without the prior approval of the SMSO.
Any person subject to an industrial or construction activity
SPDES stormwater discharge permit shall comply with all provisions
of such permit. Proof of compliance with said permit may be required
in a form acceptable to the SMSO prior to the allowing of discharges
to the MS4.
This section applies to all facilities that the SMSO must inspect to enforce any provision of this Part 1, or whenever the authorized enforcement agency has cause to believe that there exists, or potentially exists, in or upon any premises any condition which constitutes a violation of this Part 1.
A.
A person shall permit the SMSO to enter and inspect facilities subject
to regulation under this Part 1 as often as may be necessary to determine
compliance with the provisions of this Part 1. If a discharger has
security measures in force which require proper identification and
clearance before entry into its premises, the discharger shall make
the necessary arrangements to allow access to the SMSO.
B.
Facility operators shall allow the SMSO ready access to all parts
of the premises for the purposes of inspection, sampling, examination
and copying of records as may be required to implement the provisions
of this Part 1.
C.
The Town shall have the right to set up on any facility subject to
this Part 1 such devices as are necessary in the opinion of the SMSO
to conduct monitoring and/or sampling of the facility's stormwater
discharge.
D.
The Town has the right to require the facilities subject to this
Part 1 to install monitoring equipment as is reasonably necessary
to determine compliance with the provisions of this Part 1. The facility's
sampling and monitoring equipment shall be maintained at all times
in a safe and proper operating condition by the discharger at its
own expense. All devices used to measure stormwater flow and quality
shall be calibrated to ensure their accuracy.
E.
Any unreasonable delay in allowing the Town access to a facility
subject to this Part 1 is a violation of this Part 1. A person who
is the operator of a facility subject to this Part 1 commits an offense
if the person denies the Town reasonable access to the facility for
the purpose of conducting any activity authorized or required by this
Part 1.
F.
If the SMSO has been refused access to any part of the premises from
which a discharge is occurring, and the SMSO is able to demonstrate
probable cause to believe that there may be a violation of this Part
1, or that there is a need to inspect and/or sample as part of a routine
inspection and sampling program designed to verify compliance with
this Part 1 or any order issued hereunder, then the SMSO may seek
issuance of a search warrant from any court of competent jurisdiction.
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 is resulting or may result
in illegal discharges or pollutants discharging into the MS4, said
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, said person shall immediately notify emergency response
agencies of the occurrence via emergency dispatch services (NYSDEC
Spill Hotline: 1-800-457-7362) and the Town of Lewisboro (914-763-3166).
In the event of a release of nonhazardous materials, said person shall
notify the Town of Lewisboro in person or by telephone (914-763-3166)
or facsimile (914-763-8134) no later than the next business day. Notifications
in person or by telephone shall be confirmed by written notice addressed
and mailed to the Town within three 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 years.
Any person receiving a notice of violation may appeal the determination
of the SMSO to the Town Board within 15 days of its issuance. The
Town Board shall hear the appeal within 30 days after the filing of
the appeal and, within five days of making its decision, file its
decision in the office of the Town Clerk and mail a copy of its decision
by certified mail to the discharger.
A.
If the violation has not been corrected pursuant to the requirements
set forth in the notice of violation, or, in the event of an appeal,
within five business days of the decision of the Town Board upholding
the decision of the SMSO, then the SMSO shall request the owner's
permission for access to the subject premises to take any and all
measures reasonably necessary to abate the violation and/or restore
the property. Any costs incurred by the Town to abate the violation
and/or restore the affected property or properties shall be the sole
responsibility of the discharger.
B.
If refused access to the subject premises, the SMSO may seek a warrant
in a court of competent jurisdiction to be authorized to enter upon
the premises to determine whether a violation has occurred. Upon determination
that a violation has occurred, the SMSO may seek a court order to
take any and all measures reasonably necessary to abate the violation
and/or restore the property. The cost of implementing and maintaining
such measures shall be the sole responsibility of the discharger.
It shall be unlawful for any person to violate any provision
or fail to comply with any of the requirements of this Part 1. If
a person has violated or continues to violate the provisions of this
Part 1, the SMSO may apply to a court of competent jurisdiction for
a preliminary or permanent injunction restraining the person from
activities which would create further violations or compelling the
person to perform abatement or remediation of the violation.
A.
Where a person has violated a provision of this Part 1, said person
may be eligible for alternative remedies in lieu of a civil penalty,
upon recommendation of the Town Attorney and concurrence of the SMSO,
where:
In addition to the enforcement processes and penalties provided
in this Part 1, any condition caused or permitted to exist in violation
of any of the provisions of this Part 1 is a threat to public health,
safety, and welfare, and is declared and deemed a nuisance, and may
be summarily abated or restored at the violator's expense, and/or
a civil action to abate, enjoin, or otherwise compel the cessation
of such nuisance may be taken.
The remedies listed in this Part 1 are not exclusive of any
other remedies available under any applicable federal, state or local
law, and it is within the discretion of the SMSO and Town to seek
cumulative remedies.
A.
All permit application and review fees shall be in an amount set
forth in the fee schedule established by resolution of the Town Board.
B.
Fees charged by consultant professionals shall be in accordance with fees usually charged for such services in Westchester County and pursuant to a contractual agreement between the Town and such professional. All such charges shall be paid by the Town upon receipt of a Town voucher. The applicant shall reimburse the Town for the cost of such professional review services upon submission of a copy of the voucher or, at the discretion of the Town, in accordance with Subsections C and D of this section. Such professional review fee reimbursement costs shall bear a reasonable relationship to other applications of that type. The payment of such fees by the applicant shall be required in addition to any and all other fees required by this or any other section of this Part 1, or any other chapter of this code.
C.
Permit review escrow account procedures.
(1)
At the time of submission of any application to remedy a violation
as set forth in this Part 1, the applicant may be required to establish
an applicant-funded review escrow account from which withdrawals shall
be made to reimburse the Town for the cost of professional review
services.
(2)
The applicant shall fund the escrow account as follows (The total
amount of funds required shall be based upon the level of expertise
and intensity of evaluation needed due to the nature and complexity
of the application.):
(a)
To cover the costs of the initial review of the application,
an initial escrow deposit in the amount of $1,000 shall be provided.
(b)
After such initial review, the applicant shall provide additional
funds to the Town for deposit into the escrow account in an amount
to be established by the SMSO, as a full escrow amount, based upon
estimates of the anticipated review costs provided by the professional
consultants to the Town. Said estimates are for the convenience of
the applicant and shall not be binding upon the Town. Upon request,
the applicant shall be provided with copies of any voucher for such
services as they are submitted to the Town.
(3)
Should the balance in such escrow account become reduced to 1/2 of
the full escrow deposit amount, the applicant shall deposit additional
funds into such account to bring its balance up to 100% of the amount
of the full escrow deposit, or to some lesser amount as deemed acceptable
by the SMSO to complete the permit review of the application.
(4)
If such escrow account is not replenished within 20 days after the
applicant is notified in writing of the requirement for such additional
deposit, the SMSO may suspend its review of the application until
such time as the escrow account is replenished accordingly.
(5)
A building permit, or certificate of occupancy or use or certificate
of compliance shall not be issued and no approval of plats, subdivisions,
site plans, special permits, variances or other permits or approvals
as issued by the administrative officials and municipal boards of
the Town of Lewisboro shall be granted unless all professional review
fees charged in connection with the application have been reimbursed
to the Town.
(6)
After all pertinent charges have been paid, the Town shall refund
to the applicant any funds remaining on deposit.
D.
SEQRA escrow account procedures.
(1)
In the event that a positive declaration is determined in accordance with the New York State Environmental Quality Review Act (SEQRA) regarding the subject application, reimbursement procedures utilizing the basic permit review escrow account established in accordance with Subsection C may be suspended until after completion of the SEQR process.
(2)
After all pertinent charges have been paid, the Town may refund to
the applicant any funds remaining on deposit in the basic permit review
escrow account minus $100 so as to maintain the base permit review
escrow account with the Town.
(3)
Reimbursements of the costs of professional fees incurred subsequent
to the determination of a positive declaration and necessary for the
preparation or review of an environmental impact statement (EIS) shall
be made in accordance with the procedures established under SEQR and
the Lewisboro Environmental Quality Review Law (LEQR), as may be amended
from time to time.[1]
(4)
Upon completion of the SEQR process or continued review of the application
which is not directly related to the preparation or review of an EIS,
the applicant shall replenish the basic permit review escrow account
with a deposit in an amount deemed necessary by the SMSO, but in no
case in an amount greater than the full escrow deposit amount originally
established by the SMSO.
(5)
All subsequent deposits, reimbursements and refunds relating to the
review of the activity permit application shall be made in accordance
with the standards and procedures above.
E.
Monitoring and inspection fees.
(1)
Required monitoring and inspection fees shall be determined by the
SMSO upon approval of an application to remedy a violation, based
on the complexity and substance of the authorized regulated activity.
(2)
To perform specific monitoring duties as required by this Part 1,
the Town may contract with a professional consultant to provide independent
environmental monitoring and inspection services. To offset the costs
of hiring an independent environmental monitor or inspector for this
purpose, the SMSO may require an applicant to establish a monitoring
escrow account with the Town.
