[HISTORY: Adopted by the Board of Trustees of the Village of Fayetteville as indicated in article histories. Amendments noted where applicable.]
[Adopted 12-18-2007 by L.L. No. 5-2007]
The purpose of this article is to provide for the health, safety and general welfare of the citizens of the Village of Fayetteville through the regulation of nonstormwater discharges to the storm drainage system to the maximum extent practicable as required by federal and state law. This article establishes methods for controlling the introduction of pollutants into the municipal separate storm sewer system (MS4) in order to comply with requirements of the National Pollutant Discharge Elimination System (NPDES) and the New York State Pollutant Discharge Elimination System (SPDES) permit process. The objectives of this article are:
To regulate the contribution of pollutants to the MS4 by stormwater discharges by any user.
To prohibit illicit connections and discharges to the MS4.
To establish legal authority to carry out all inspection, surveillance, monitoring and enforcement procedures necessary to ensure compliance with this article.
For the purposes of this article, the following shall mean:
- AUTHORIZED ENFORCEMENT AGENCY
- Employees or designees of the director of the municipal agency designated to enforce this article.
- BEST MANAGEMENT PRACTICES (BMPs)
- Schedules of activities, prohibitions of practices, general good-housekeeping practices, pollution prevention and educational practices, maintenance procedures, and other management practices to prevent or reduce the discharge of pollutants directly or indirectly to stormwater, receiving waters, or stormwater conveyance systems. BMPs also include treatment practices, operating procedures, and practices to control site runoff, spillage or leaks, sludge or water disposal, or drainage from raw materials storage.
- CLEAN WATER ACT
- The Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.) and any subsequent amendments thereto.
- CONSTRUCTION ACTIVITY
- Activities subject to NPDES or SPDES construction permits. These include construction projects resulting in land disturbance of one acre or more. Such activities include but are not limited to clearing and grubbing, grading, excavating, and demolition.
- HAZARDOUS MATERIALS
- Any material, including any substance, waste, or combination thereof which, because of its quantity, concentration, or physical, chemical, or infectious characteristics, may cause or significantly contribute to a substantial present or potential hazard to human health, safety, property, or the environment when improperly treated, stored, transported, disposed of, or otherwise managed.
- ILLEGAL DISCHARGE
- Any direct or indirect nonstormwater discharge to the storm drain system, except as exempted in § 147-8A of this article.
- ILLICIT CONNECTIONS
- An illicit connection is defined as either of the following:
- A. Any drain or conveyance, whether on the surface or subsurface, that allows an illegal discharge to enter the storm drain system, including but not limited to any conveyances that allow any nonstormwater discharge, including sewage, process wastewater and wash water, to enter the storm drain system and any connections to the storm drain system front indoor drains and sinks, regardless of whether said drain or connection had been previously allowed, permitted, or approved by an authorized enforcement agency; or
- B. Any drain or conveyance connected from a commercial or industrial land use to the storm drain system that has not been documented in plans, maps, or equivalent records and approved by an authorized enforcement agency.
- INDUSTRIAL ACTIVITY
- Activities subject to NPDES or SPDES industrial stormwater permits, except for construction activities covered under GP-02-01 or GP-0-08-001, as amended or revised.
- MUNICIPAL SEPARATE STORM SEWER SYSTEM (MS4)
- The system of conveyances (including sidewalks, roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains) owned and operated by the Village of Fayetteville and designed or used for collecting or conveying stormwater, and that is not used for collecting or conveying sewage.
- NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) STORMWATER DISCHARGE PERMIT
- A permit issued by the EPA (or by a state under authority delegated pursuant to 33 U.S.C. § 1342(b) [SPDES]) that authorizes the discharge of pollutants to waters of the United States, whether the permit is applicable on an individual, group, or general area-wide basis.
- NONSTORMWATER DISCHARGE
- Any discharge to the storm drain system that is not composed of surface water meeting the water quality standards identified within Part 70, Surface Water and Groundwater Quality Standards and Groundwater Effluent Limitations of the Official Compilation of Codes, Rules and Regulations of the State of New York.
- Any individual, association, organization, partnership, firm, corporation or other entity recognized by law and acting as either the owner or as the owner's agent.
- Anything which causes or contributes to pollution. Pollutants may include, but are not limited to; paints, varnishes, and solvents; oil and other automotive fluids; nonhazardous liquid and solid wastes and yard wastes; refuse, rubbish, garbage, litter, or other discarded or abandoned objects, ordinance and accumulations, so that same may cause or contribute to pollution; floatables; pesticides, herbicides, and fertilizers; hazardous substances and wastes; sewage, fecal coliform and pathogens; dissolved and particulate metals; animal wastes; wastes and residues that result from constructing a building or structure; and noxious or offensive matter of any kind.
- Any building, lot, parcel of land or portion of land, whether improved or unimproved, including adjacent sidewalks and parking strips.
- STORM DRAINAGE SYSTEM
- Publicly owned facilities by which stormwater is collected and/or conveyed, including but not limited to any roads with drainage systems, municipal streets, gutters, curbs, inlets, piped storm drains, pumping facilities, retention and detention basins, natural and human-made or altered drainage channels, reservoirs, and other drainage structures.
- Rainwater, surface runoff, snowmelt and drainage.
- STORMWATER MANAGEMENT PLAN
- A document which describes the best management practices and activities to be implemented by a person or business to identify sources of pollution or contamination at a site and the actions to eliminate or reduce pollutant discharges to stormwater, stormwater conveyance systems, and/or receiving waters to the maximum extent practicable.
- Water that is not stormwater, is contaminated with pollutants and is or will be discarded.
This article shall apply to all water entering the storm drain system generated on any developed and undeveloped lands unless explicitly exempted.
The Code Enforcement Officer of the Village of Fayetteville shall administer, implement and enforce the provisions of this article. Any powers granted or duties imposed upon the Code Enforcement Officer may be delegated, in writing, by the Mayor of the Village of Fayetteville to persons or entities acting in the beneficial interest of or in the employ of the agency.
This article is not intended to modify or repeal any other law, rule, regulation or other provision of law. The requirements of this article are in addition to the requirements of any other law, rule, regulation or other provision of law. Where any provision of this article imposes restrictions different from those imposed by any other law, rule, regulation or other provision of law, whichever provision is more restrictive or imposes higher protective standards for human health or the environment shall control.
The provisions of this article are hereby declared to be severable. If any provision, clause, sentence or paragraph of this article or the application thereof to any person, establishment or circumstances shall be held invalid, such invalidity shall not affect the other provisions or application of this article.
The standards set forth herein and promulgated pursuant to this article are minimum standards; therefore, this article does not intend or imply that compliance by any person will ensure that there will be no contamination, pollution or unauthorized discharge of pollutants.
Prohibition of illegal discharges. No person shall throw, drain or otherwise discharge, cause or allow others under said person's control to throw, drain or otherwise discharge into the MS4 any pollutants or waters containing any pollutants, other than stormwater. The commencement, conduct or continuance of any illegal discharge to the storm drain system is prohibited except as described as follows:
The following discharges are exempt from discharge prohibitions established by this article: waterline flushing, landscape irrigation, diverted stream flows, rising groundwaters, uncontaminated groundwater infiltration, uncontaminated pumped groundwater, discharges from potable water sources, foundation drains, air-conditioning condensation, irrigation water, springs, water from crawl space pumps, footing drains, lawn watering, individual residential car washing, flows from riparian habitats and wetlands, dechlorinated swimming pool discharges and street wash water.
Discharges or flow from firefighting and other discharges specified, in writing, by the Code Enforcement Officer as being necessary to protect public health and safety.
Discharges associated with dye testing; however, this activity requires a verbal notification to the Code Enforcement Officer prior to the time of the test.
The prohibition shall not apply to any nonstormwater discharge permitted under an NPDES or SPDES permit, waiver or waste discharge order issued to the discharger and administered under the authority of the United States Environmental Protection Agency (EPA) or the New York State Department of Environmental Conservation, 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 storm drain system.
Prohibition of illicit connections.
The construction, use, maintenance or continued existence of illicit connections to the storm drain system is prohibited.
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.
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.
Improper connections in violation of this article must be connected and redirected, if necessary, to an approved on-site wastewater management system or the sanitary sewer system upon approval of the Code Enforcement Officer of the Village of Fayetteville.
Any drain or conveyance that has not been documented in plans, maps or equivalent and which may be connected to the storm sewer system shall be located by the owner or occupant of that property upon receipt of a written notice of violation from the Code Enforcement Officer of the Village of Fayetteville requiring that such locating be completed. Such notice will specify a reasonable time period within which the location of the drain or conveyance is to be determined, that the drain or conveyance be identified as storm sewer, sanitary sewer or other and that the outfall location or point of connection to the storm sewer system, sanitary sewer system or other discharge point be identified. Results of these investigations are to be documented and provided to the Code Enforcement Officer of the Village of Fayetteville.
Every person owning property through which a watercourse passes, or such person's lessee, shall keep and maintain that part of the watercourse within the property free of trash, debris, excessive vegetation and other obstacles that would pollute, contaminate or significantly retard the flow of water through the watercourse. In addition, the owner or lessee shall maintain existing privately owned structures within or adjacent to a watercourse so that such structures will not become a hazard to the use, function or physical integrity of the watercourse.
Compliance with permit. Any person subject to an industrial or construction activity NPDES or 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 Code Enforcement Officer prior to the allowing of discharges to the MS4.
Submission of notice of intent to Village.
The operator of a facility, including construction sites, required to have an NPDES or SPDES permit to discharge stormwater associated with industrial activity shall submit a copy of the notice of intent (NOI) to the Code Enforcement Officer at the same time the operator submits the original notice of intent to the EPA or state DEC as applicable.
The copy of the notice of intent may be delivered to the Code Enforcement Officer either in person or by mailing it to:
A person commits an offense if the person operates a facility that is discharging stormwater associated with industrial activity without having submitted a copy of the notice of intent to do so to the Code Enforcement Officer.
Right of entry for inspection and sampling. The Village Code Enforcement Officer or his/her designee 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 representatives of the Village Code Enforcement Officer.
Facility operators shall allow the Village Code Enforcement Officer or his/her designee ready access to all parts of the premises for the purposes of inspection, sampling, examination and copying of records that must be kept under the conditions of an NPDES or SPDES permit to discharge stormwater, and the performance of any additional duties as defined by state and federal law. The Village Code Enforcement Officer or his/her designee shall have the right to set up on any permitted facility such devices as are necessary in the opinion of the Village Code Enforcement Officer or his/her designee to conduct monitoring and/or sampling of the facility's stormwater discharge.
The Village Code Enforcement Officer or his/her designee has the right to require the discharger to install monitoring equipment as necessary. 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 said devices' accuracy.
Any temporary or permanent obstruction to safe and easy access to the facility to be inspected and/or sampled shall be promptly removed by the operator at the written or oral request of the Village Code Enforcement Officer or his/her designee and shall not be replaced. The costs of clearing such access shall be borne by the operator.
Unreasonable delays in allowing the Village Code Enforcement Officer or his/her designee access to a permitted facility is a violation of a stormwater discharge permit and of this article. A person who is the operator of a facility with an NPDES or SPDES permit to discharge stormwater associated with industrial activity commits an offense if the person denies the Village Code Enforcement Officer or his/her designee reasonable access to the permitted facility for the purpose of conducting any activity authorized or required by this article.
Search warrants. If the Village Code Enforcement Officer or his/her designee 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 inspection and/or sample as part of a routine inspection and sampling program designed to verify compliance with this article or any order issued hereunder, or to protect the overall public health, safety and welfare of the community, then the Village Code Enforcement Officer may seek issuance of a search warrant from any court of competent jurisdiction.
The Village Code Enforcement Officer or his/her designee will adopt requirements identifying best management practices for any activity, operation or facility which may cause or contribute to pollution or contamination of stormwater, the storm drain system or waters of the United States. The owner or operator of such activity, operation or facility shall provide, at said owner's or operator's own expense, reasonable protection from accidental discharge of prohibited materials or other wastes into the municipal storm drain system or watercourses through the use of these structural and nonstructural BMPs. Further, any person responsible for a property or premises that is or may be the source of an illicit discharge may be required to implement, at said person's expense, additional structural and nonstructural BMPs to prevent the further discharge of pollutants to the MS4. Compliance with all terms and conditions of a valid NPDES or 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. These BMPs shall be part of a stormwater management plan (SWMP) as necessary for compliance with requirements of the NPDES permit.
Notwithstanding other requirements of this article, 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 illegal discharges or pollutants discharging into stormwater, the storm drain system or waters of the United States, 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 Village Code Enforcement Officer or his/her designee, in person or by phone or facsimile, no later than the next business day. Notifications in person or by phone shall be confirmed by written notice addressed and mailed to the Village Code Enforcement Officer or his/her designee within three business days of the phone 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 10 years.
Failure to provide notification of a release as provided above is a violation of this article.
It shall be unlawful for any person to violate any provision or fail to comply with any of the requirements of this article. Any person who has violated or continues to violate the provisions of this article may be subject to the enforcement actions outlined in this section or may be restrained by injunction or otherwise abated in a manner provided by law.
In the event the violation constitutes an immediate danger to public health or public safety, the Village Code Enforcement Officer or his/her designee is authorized to enter upon the subject private property, without giving prior notice, to take any and all measures necessary to abate the violation and/or restore the property. The Village Code Enforcement Officer is authorized to seek costs of the abatement as outlined in § 147-18.
Warning notice. When the Village Code Enforcement Officer or his/her designee finds that any person has violated, or continues to violate, any provision of this article or any order issued hereunder, the Village Code Enforcement Officer or his/her designee may serve upon that person a written warning notice, specifying the particular violation believed to have occurred and requesting the discharger to immediately investigate the matter and to seek a resolution whereby any offending discharge will cease. Investigation and/or resolution of the matter in response to the warning notice in no way relieves the alleged violator of liability for any violations occurring before or after receipt of the warning notice. Nothing in this subsection shall limit the authority of the Village Code Enforcement Officer or his/her designee to take any action, including emergency action or any other enforcement action, without first issuing a warning notice.
Notice of violation.
Whenever the Village Code Enforcement Officer or his/her designee finds that a person has violated a prohibition or failed to meet a requirement of this article, the Village Code Enforcement Officer or his/her designee may order compliance by written notice of violation to the responsible person. The notice of violation shall contain:
The name and address of the alleged violator;
The address, when available, or a description of the building, structure or land upon which the violation is occurring or has occurred;
A statement specifying the nature of the violation;
A description of the remedial measures necessary to restore compliance with this article and a time schedule for the completion of such remedial action;
A statement of the penalty or penalties that shall or may be assessed against the person to whom the notice of violation is directed;
A statement specifying that, should the violator fail to restore compliance within the established time schedule, the work will be done by a designated governmental agency or a contractor and the expense thereof shall be charged to the violator.
Such notice may require without limitation:
The performance of monitoring, analyses and reporting;
The elimination of illicit connections or discharges;
That violating discharges, practices or operations shall cease and desist;
The abatement or remediation of stormwater pollution or contamination hazards and the restoration of any affected property;
Payment of a fine to cover administrative and remediation costs; and
The implementation of source control or treatment BMPs.
Compensatory action. In lieu of enforcement proceedings, penalties, and remedies authorized by this article, the Village Code Enforcement Officer or his/her designee may impose upon a violator alternative compensatory actions, such as storm drain stenciling, attendance at compliance workshops, creek cleanup, etc.
Suspension of MS4 access.
Emergency cease-and-desist orders.
When the Village Code Enforcement Officer or his/her designee finds that any person has violated, or continues to violate, any provision of this article or any order issued hereunder or that the person's past violations are likely to recur and that the person's violation(s) has (have) caused or contributed to an actual or threatened discharge to the MS4 or waters of the United States which reasonably appears to present an imminent or substantial endangerment to the health or welfare of persons or to the environment, the Village Code Enforcement Officer or his/her designee may issue an order to the violator directing said violator to immediately cease and desist all such violations and directing the violator to:
Any person notified of an emergency order directed to said person under this subsection shall immediately comply and stop or eliminate the endangering discharge. In the event of a discharger's failure to immediately comply voluntarily with the emergency order, the Village Code Enforcement Officer or his/her designee may take such steps as deemed necessary to prevent or minimize harm to the MS4 or waters of the United States and/or endangerment to persons or to the environment, including immediate termination of a facility's water supply, sewer connection or other municipal utility services. The Village Code Enforcement Officer or his/her designee may allow the person to recommence discharge when said person has demonstrated to the satisfaction of the Village Code Enforcement Officer that the period of endangerment has passed, unless further termination proceedings are initiated against the discharger under this article. A person that is responsible, in whole or in part, for any discharge presenting imminent endangerment shall submit a detailed written statement, describing the causes of the harmful discharge and the measures taken to prevent any future occurrence, to the Village Code Enforcement Officer or his/her designee within 10 days of receipt of the emergency order. Issuance of an emergency cease-and-desist order shall not be a bar against, or a prerequisite for, taking any other action against the violator.
Suspension due to illicit discharges in emergency situations. The Village Code Enforcement Officer or his/her designee 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 or to the health or welfare of persons or to the MS4 or waters of the United States. If the violator fails to comply with a suspension order issued in an emergency, the Village Code Enforcement Officer or his/her designee may take such steps as deemed necessary to prevent or minimize damage to the MS4 or waters of the United States or to minimize danger to persons.
Suspension due to detection of illicit discharges.
Any person discharging to the MS4 in violation of this article may have its MS4 access terminated if such termination would abate or reduce an illicit discharge. The Village Code Enforcement Officer or his/her designee will notify a violator of the proposed termination of its MS4 access.
A person commits an offense if the person reinstates MS4 access to premises terminated pursuant to this section, without the prior approval of the Village Code Enforcement Officer or his/her designee.
[Amended 1-23-2012 by L.L. No. 4-2012]
See Ch. 113, Penalties for Offenses.
Any person receiving a notice of violation may appeal the determination of the Village Code Enforcement Officer or his/her designee. The notice of appeal must be received within 10 days from the date of the notice of violation. Hearing on the appeal before the appropriate authority or his/her designee shall take place within 60 days from the date of receipt of the notice of appeal. The decision of the municipal authority or his/her designee shall be final.
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 30 days of the decision of the municipal authority upholding the decision of the Village Code Enforcement Officer or his/her designee, then representatives of the Code Enforcement Officer shall enter upon the subject private property and are authorized to take any and all measures necessary to abate the violation and/or restore the property. It shall be unlawful for any person, owner, agent or person in possession of any premises to refuse to allow the government agency or designated contractor to enter upon the premises for the purposes set forth above.
Within 30 days after abatement of the violation, the owner of the property will be notified of the cost of abatement, including administrative costs. The property owner may file a written protest objecting to the amount of the assessment within 10 days. If the amount due is not paid within a timely manner as determined by the decision of the municipal authority or by the expiration of the time in which to file an appeal, the charges shall become a special assessment against the property and shall constitute a lien on the property for the amount of the assessment.
Any person violating any of the provisions of this article shall become liable to the Village of Fayetteville by reason of such violation.
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 Code Enforcement Officer to seek cumulative remedies.
The Village Code Enforcement Officer or his/her designee may recover all attorneys' fees, court costs and other expenses associated with enforcement of this article, including sampling and monitoring expenses.