[Added 12-19-2007 by L.L.
No. 3-2007]
The purpose of this article is to provide for the health, safety,
and general welfare of the citizens of the Town of Elma through the
regulation of nonstormwater discharges to the MS4 to the maximum extent
practicable as required by federal and state law. This article establishes
methods for controlling the introduction of contaminants into the
MS4 in order to comply with the requirements of the SPDES General
Permit for Stormwater Discharges from MS4s, Permit No. GP-02-02. The
objectives of this article are:
A.
To meet the requirements of the SPDES General Permit for Stormwater
Discharges from MS4s, Permit No. GP-02-02;
B.
To regulate the contribution of contaminants to the MS4 since such
systems are not designed to accept, process or discharge nonstormwater
wastes;
C.
To prohibit illicit connections, activities, and discharges to the
MS4;
D.
To establish legal authority to carry out all inspection surveillance,
and monitoring procedures necessary to ensure compliance with this
article; and
E.
To promote public awareness of the hazards involved in the improper
discharge of trash, yard waste, lawn chemicals, pet waste, contaminated
water, grease, oil, petroleum products, cleaning products, paint products,
hazardous waste, sediment and other contaminants into the MS4.
A.
Applicability. This article shall apply to all water entering the
MS4 within the Stormwater Management Overlay District generated on
any developed or undeveloped lands, unless explicitly exempted by
an authorized enforcement agency. This article shall not apply to
any part of the MS4 outside the Stormwater Management Overlay District.
B.
Stormwater Management Overlay District. The Stormwater Management
Overlay District consists of all urbanized areas within the jurisdiction
of the Town of Elma, as identified by the United States Census Bureau
TIGER data, 2000 Census in two maps, attached hereto, entitled the
"Buffalo, NY Urbanized Area Stormwater Entities as Defined by the
2000 Census," dated October 21, 2002, as amended or revised. Such
maps and any amendments or revisions thereto are hereby declared to
be a part of this chapter and shall be filed at the Elma Town Hall.
C.
Responsibility for administration. The CEO shall administer, implement,
and enforce the provisions of this article. Such powers granted or
duties imposed upon the authorized enforcement official may be delegated,
in writing, by the CEO as may be authorized by the Town.
D.
Conflict. Where the conditions imposed by any provisions of this
article are either more restrictive or less restrictive than comparable
conditions imposed by any other applicable law, ordinance, resolution,
rule or regulation of any kind, the regulations which are more restrictive
and impose higher standards or requirements shall govern.
A.
Prohibition of illicit discharges. No person shall discharge or cause
to be discharged into the MS4 any materials other than stormwater
except as provided below. The commencement, conduct or continuance
of any illicit discharge to the MS4 is prohibited except as described
as follows:
(1)
The following discharges are exempt from discharge prohibitions
established by this article, unless NYSDEC or the Town has determined
them to be substantial contributors of contaminants: water line flushing
or other potable water sources, landscape irrigation or lawn watering,
existing diverted stream flows, rising groundwater, uncontaminated
groundwater infiltration to storm sewers, uncontaminated pumped groundwater,
foundation or footing drains, crawl space or basement sump pumps,
air-conditioning condensate, irrigation water, springs, water from
individual residential car washing, natural riparian habitat or wetland
flows, dechlorinated swimming pool discharges residential street wash
water, water from firefighting activities, and any other water source
not containing contaminants. Such exempt discharges shall be made
in accordance with an appropriate plan for reducing contaminants.
(2)
Discharges approved, in writing, by the CEO to protect life
or property from imminent harm or damage, provided that such approval
shall not be construed to constitute compliance with other applicable
laws and requirements, and further provided that such discharges may
be permitted for a specified time period and under such conditions
as the CEO may deem appropriate to protect such life and property
while reasonably maintaining the purpose and intent of this article.
(3)
Dye testing in compliance with applicable state and local laws
is an allowable discharge, but requires a verbal notification to the
CEO prior to the time of the test.
(4)
The prohibition of illicit discharges shall not apply to any
discharge permitted under a SPDES permit, waiver, or waste discharge
order issued to the discharger and administered under the authority
of NYSDEC, provided that the discharger is in full compliance with
all requirements of the permit waiver, or order and other applicable
laws and regulations, and provided that written approval has been
granted for any discharge to the MS4.
B.
Prohibition of illicit connections.
(1)
The construction, use, maintenance or continued existence of
illicit connections to the MS4 is prohibited.
(2)
This prohibition expressly includes, without limitation, illicit
connections made in the past, regardless of whether the connection
was permissible under law or practices applicable or prevailing at
the time of connection.
(3)
A person is considered to be in violation of this article if
the person connects a line conveying sewage to the MS4 or allows such
a connection to continue.
B.
Such activities include improper management of pet waste or any other
activity that causes or contributes to violations of the Town's MS4
SPDES permit authorization.
C.
Upon notification to a person that he or she is engaged in activities
that cause or contribute to violations of the Town's MS4 SPDES stormwater
discharge permit authorization, that person shall take all reasonable
actions to correct such activities such that he or she no longer causes
or contributes to violations of the Town's MS4 SPDES stormwater discharge
permit authorization.
Where the CEO has identified an illicit discharge or an activity contaminating stormwater, as defined in § 115-168, the Town may require implementation of BMPs to control those illicit discharges and activities.
A.
The owner or operator of a commercial or industrial establishment
shall provide, at their 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 an activity contaminating stormwater, as defined in § 115-168, may be required to implement, at said person's expense, additional structural and nonstructural BMPs to reduce or eliminate the source of contaminant(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 article.
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 Town prior to the allowing of discharges
to the MS4.
A.
Illicit discharges in emergency situations. The CEO 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 people, or to the MS4. The CEO 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 CEO
may take such steps as deemed necessary to prevent or minimize damage
to the MS4 or to minimize danger to people.
B.
Suspension due to the detection of an illicit discharge. Any person
discharging to the MS4 in violation of this article may have their
MS4 access terminated if such termination would abate or reduce an
illicit discharge. The CEO will notify a violator, in writing, of
the proposed termination of his/her MS4 access and the reasons therefor.
The violator may petition the CEO for a reconsideration and hearing.
Access may be granted by the CEO if he/she finds that the illicit
discharge has ceased and the discharger has taken steps to prevent
its recurrence. Access may be denied if the CEO determines, in writing,
that the illicit discharge has not ceased or is likely to reoccur.
A person commits an offense if the person reinstates MS4 access to
the premises terminated pursuant to this article without the prior
approval of the CEO.
A.
Applicability. This section applies to all facilities that the CEO
must inspect to enforce any provision of this article, 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 article.
B.
Access to facilities.
(1)
The CEO shall be permitted to enter and inspect facilities subject
to regulation under this article as often as may be necessary to determine
compliance with this article. 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 CEO.
(2)
Facility operators shall allow the CEO 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 this article.
(3)
The Town shall have the right to set up on any facility subject
to this article such devices as are necessary in the opinion of the
CEO to conduct monitoring and/or sampling of the facility's stormwater
discharge.
(4)
The Town has the right to require the facilities subject to
this article to install monitoring equipment as is reasonably necessary
to determine compliance with this article. 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.
(5)
An unreasonable delay in allowing the CEO access to a facility
subject to this article is a violation of this article. A person who
is the operator of a facility subject to this article commits an offense
if the person denies the CEO reasonable access to the facility for
the purpose of conducting any activity authorized or required by this
article.
(6)
If the CEO has been refused access to any part of the premises
from which stormwater is discharged and he/she is able to demonstrate
probable cause to believe that there may be a violation of this article
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 article or any order issued hereunder, then the CEO 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 are resulting or may result
in illicit discharges or contaminants 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. In the
event of a release of nonhazardous materials, said person shall notify
the Town in person or by telephone or facsimile 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.
A.
Notice of violation. When the CEO finds that a person has violated
a prohibition or failed to meet a requirement of this article, he
or she may order compliance by written notice of violation to the
responsible person. Such notice may require without limitation:
(1)
The elimination of illicit connections or discharges;
(2)
That violating discharges, practices, or operations shall cease
and desist;
(3)
The abatement or remediation of stormwater pollution or contamination
hazards and the restoration of any affected property;
(4)
The performance of monitoring, analyses, and reporting;
(5)
That the Town will seek civil remedies or criminal penalties, including the imposition of a criminal fine, as provided in § 115-174B; and
(6)
The implementation of source control or treatment BMPs. If abatement
of a violation and/or restoration of affected property is 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.
Penalties. In addition to or as an alternative to any penalty provided
herein or by law, any person who violates the provisions of this article
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 article
shall be deemed misdemeanors and for such purpose only all provisions
of law relating to misdemeanors shall apply to such violations. Each
week's continued violation shall constitute a separate additional
violation.
Any person receiving a notice of violation may appeal the determination
of the CEO to the Town Board within 15 days of its issuance, which
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 municipal 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 municipal authority
upholding the decision of the CEO, then the CEO shall request the
owner's permission for access to the subject private property to take
any and all measures reasonably necessary to abate the violation and/or
restore the property.
B.
If refused access to the subject private property, the CEO may seek
a warrant in a court of competent jurisdiction to be authorized to
enter upon the property to determine whether a violation has occurred.
Upon determination that a violation has occurred, the CEO 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 article. If
a person has violated or continues to violate the provisions of this
article, the CEO may petition 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 article, he/she may
be given alternative remedies in lieu of a civil penalty, upon recommendation
of the Town Attorney and concurrence of the CEO where:
In addition to the enforcement processes and penalties provided,
any condition caused or permitted to exist in violation of any of
the provisions of this article 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 article are not exclusive of any
other remedies available under any applicable federal, state or local
law, and it is within the discretion of the authorized enforcement
agency to seek cumulative remedies.
