[HISTORY: Adopted by the Town Board of the Town of Fishkill 11-10-2007 by L.L. No. 10-2007. Amendments noted where applicable.]
This purpose of this chapter is to provide for the health, safety, and general welfare of the citizens of the Town of Fishkill through the regulation of nonstormwater discharges to the municipal separate stormwater sewer system (MS4) to the maximum extent practicable as required by federal and state law. This chapter establishes methods for controlling the introduction of pollutants into the MS4 in order to comply with the requirements of the SPDES general permit for municipal separate stormwater sewer systems. The intent of this chapter is to meet the following objectives:
To meet the requirements of the SPDES general permit for stormwater discharges from MS4s, Permit No. GP-02-02, as amended or revised;
To regulate the contribution of pollutants to the MS4 since such systems are not designed to accept, process or discharge nonstormwater wastes;
To prohibit illicit connections, activities and discharges to the MS4;
To establish legal authority to carry out all inspection, surveillance and monitoring procedures necessary to ensure compliance with this chapter; and
To promote public awareness of the hazards involved in the improper discharge of trash, yard waste, lawn chemicals, pet waste, wastewater, grease, oil, petroleum products, cleaning products, paint products, hazardous waste, sediment and other pollutants into the MS4.
Whenever used in this chapter, unless a different meaning is stated in a definition applicable only to a portion of this chapter, the following terms will have the meanings set forth below:
- 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 requiring authorization under the SPDES permit for stormwater discharges from construction activity, GP-02-01, as amended or revised. These activities include construction projects resulting in land disturbance of one or more acres. Such activities include but are not limited to clearing and grubbing, grading, excavating, and demolition.
- The New York State Department of Environmental Conservation (NYSDEC or DEC).
- DESIGN PROFESSIONAL
- A New York State licensed professional engineer or licensed architect.
- 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.
- ILLICIT CONNECTIONS
- Any drain or conveyance, whether on the surface or subsurface, which allows an illegal discharge to enter the MS4, including but not limited to:
- A. Any conveyances which allow any nonstormwater discharge, including treated or untreated sewage, process wastewater, and wash water, to enter the MS4 and any connections to the storm drain system from 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 MS4 which has not been documented in plans, maps, or equivalent records and approved by an authorized enforcement agency.
- ILLICIT DISCHARGE
- Any direct or indirect nonstormwater discharge to the MS4, except as exempted in § 94-6 of this chapter.
- INDIVIDUAL SEWAGE TREATMENT SYSTEM
- An on-site facility serving one or more parcels of land or residential households that treats sewage or other liquid wastes, without the admixture of industrial wastes or other wastes, as those terms are defined in New York Environmental Conservation Law § 17-0701, for discharge into the groundwaters of New York State, except where a permit for such a facility is required under the applicable provisions of Article 17 of the Environmental Conservation Law, as hereafter revised or amended.
- INDUSTRIAL ACTIVITY
- Activities requiring the SPDES permit for discharges from industrial activities except construction, GP-98-03, as amended or revised.
- MS4 or MUNICIPAL SEPARATE STORMWATER SEWER SYSTEM
- A conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains):
- MUNICIPALITY or TOWN
- The Town of Fishkill.
- NONSTORMWATER DISCHARGE
- Any discharge to the MS4 that is not composed entirely of stormwater.
- Any individual, association, organization, partnership, firm, corporation or other entity recognized by law and acting as either the owner or the owner's agent.
- Dredged spoil, filter backwash, solid waste, incinerator residue, treated or untreated sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand and industrial, municipal, agricultural waste and ballast discharged into water which may cause or might reasonably be expected to cause pollution of the waters of the state in contravention of the standards.
- Any building, lot, parcel of land, or portion of land, whether improved or unimproved, including adjacent sidewalks and parking strips.
- A. Discharge compliance with water quality standards: the condition that applies where a municipality has been notified that the discharge of stormwater authorized under its MS4 permit may have caused or has the reasonable potential to cause or contribute to the violation of an applicable water quality standard. Under this condition the municipality must take all necessary actions to ensure future discharges do not cause or contribute to a violation of water quality standards.
- B. Section 303(d)-listed waters: the condition in the municipality's MS4 permit that applies where the MS4 discharges to a 303(d)-listed water. Under this condition the stormwater management program must ensure no increase of the listed pollutant of concern to the 303(d)-listed water.
- C. Total maximum daily load (TMDL) strategy: the condition in the municipality's MS4 permit where a TMDL including requirements for control of stormwater discharges has been approved by the United States Environmental Protection Agency (EPA) for a water body or watershed into which the MS4 discharges. If the discharge from the MS4 did not meet the TMDL stormwater allocations prior to September 10, 2003, the municipality was required to modify its stormwater management program to ensure that reduction of the pollutant of concern specified in the TMDL is achieved.
- D. The condition in the municipality's MS4 permit that applies if a TMDL is approved in the future by the EPA for any water body or watershed into which an MS4 discharges. Under this condition the municipality must review the applicable TMDL to see if it includes requirements for control of stormwater discharges. If an MS4 is not meeting the TMDL stormwater allocations, the municipality must, within six months of the TMDL's approval, modify its stormwater management program to ensure that reduction of the pollutant of concern specified in the TMDL is achieved.
- STATE POLLUTANT DISCHARGE ELIMINATION SYSTEM (SPDES) STORMWATER DISCHARGE PERMIT
- A permit issued by the Department that authorizes the discharge of pollutants to waters of the state.
- STOP-WORK ORDER
- An order issued which requires that all construction activity on a site be stopped.
- Rainwater, surface runoff, snowmelt and drainage.
- OFFICER (SMO)
- An employee, the Municipal Engineer or other public official(s) designated by the Town of Fishkill to enforce this chapter. The SMO may also be designated by the Town to accept, review and approve stormwater pollution prevention plans, forward the plans to the applicable municipal board and inspect practices. Plan reviews and site inspections may be delegated to a consulting engineer and/or a consultant paid for through the applicant's escrow account; however, a municipal employee or board member must make the final approval (hereinafter referred to as the "authorized representative of the SMO").
- 303(d) LIST
- A list of all surface waters in the state for which beneficial uses of the water (drinking, recreation, aquatic habitat, and industrial use) are impaired by pollutants, prepared periodically by the Department as required by Section 303(d) of the Clean Water Act. Section 303(d)-listed waters are estuaries, lakes and streams that fall short of state surface water quality standards and are not expected to improve within the next two years.
- TOTAL MAXIMUM DAILY LOAD (TMDL)
- The maximum amount of a pollutant to be allowed to be released into a water body so as not to impair uses of the water, allocated among the sources of that pollutant.
- Water that is not stormwater, is contaminated with pollutants and is or will be discarded.
This chapter shall apply to all water entering the MS4 generated on any developed and undeveloped lands unless explicitly exempted by an authorized enforcement agency.
The Stormwater Management Officer(s) [SMO(s)] shall administer, implement, and enforce the provisions of this chapter. Such powers granted or duties imposed upon the authorized enforcement official may be delegated in writing by the SMO as may be authorized by the Town Board.
The provisions of this chapter are hereby declared to be severable. If any provision, clause, sentence, or paragraph of this chapter 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 chapter.
No person shall discharge or cause to be discharged into the MS4 any materials other than stormwater except as provided in Subsection A below. The commencement, conduct or continuance of any illegal discharge to the MS4 is prohibited except as described as follows:
The following discharges are exempt from discharge prohibitions established by this chapter, unless the Department or the Town has determined them to be substantial contributors of pollutants: waterline flushing or other potable water sources, landscape irrigation or lawn watering, existing diverted stream flows, rising groundwater, uncontaminated groundwater infiltration to storm drains, 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 pollutants. Such exempt discharges shall be made in accordance with an appropriate plan for reducing pollutants.
Discharges approved in writing by the SMO to protect life or property from imminent harm or damage (also referred to as an "emergency discharge").
In an emergency situation, the SMO shall have the authority to approve a discharge, which otherwise would constitute a violation of this chapter, if such discharge is necessary to protect life or property from imminent harm or damage. A discharge shall be deemed necessary to protect life or property from imminent harm or damage when one or more of the following conditions exist:
The procedure for obtaining permission for an emergency discharge shall be as follows:
The owner of the subject property shall contact the SMO either in person, by telephone or by letter to explain the facts justifying an emergency discharge; and
Before making a decision on whether an emergency discharge is warranted, the SMO may, in his/her sole discretion, require the property owner to complete and execute an application for emergency discharge in which the owner recites the facts justifying an emergency discharge and affirms that such facts are true and accurate. Such application shall be signed by the owner in the presence of a notary public.
The SMO shall issue his/her decision in writing within a reasonable time after the owner has requested permission for an emergency discharge.
The SMO shall file a copy of his/her decision with the Town Clerk.
The property owner shall, within three days of an emergency discharge permitted by the SMO, file with the SMO and the Town Clerk a written statement which shall identify:
The contents of what was discharged to the Town's MS4 (i.e., waste, chemicals, etc.) with as much specificity as is possible; and
Whether the problem that led to the need for an emergency discharge has been rectified; and
Any other information requested by the SMO.
Such approval by the SMO shall not be construed to constitute compliance with other applicable laws and requirements and, therefore, does not relieve the property owner of any other obligations to obtain permits, approvals, waivers, etc.
Such emergency discharges may only be permitted for a specified time period and under such conditions as the SMO may deem appropriate to protect such life and property while reasonably maintaining the purpose and intent of this chapter.
Dye testing in compliance with applicable state and local laws is an allowable discharge but requires a verbal notification to the SMO prior to the time of the test.
The prohibition shall not apply to any discharge permitted under an SPDES permit, waiver, or waste discharge order issued to the discharger and administered under the authority of the Department, 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.
The construction, use, maintenance or continued existence of illicit connections to the MS4 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 chapter if the person connects a line conveying wastewater to the Town's MS4 or allows such a connection to continue.
No person shall operate a failing individual sewage treatment system in areas tributary to the Town's MS4. A failing individual sewage treatment system is one which has one or more of the following conditions:
The backup of sewage into a structure.
Discharges of treated and untreated sewage onto the ground surface.
A connection or connections to a separate stormwater sewer system.
Liquid level in the septic tank above the outlet invert.
Structural failure of any component of the individual sewage treatment system that could lead to any of the other failure conditions as noted in this section.
Contamination of off-site groundwater that has been substantiated by reliable scientific evidence as attributable to the individual sewage treatment system.
Fails to comply with the provisions of the Dutchess County Sanitary Code, as hereafter amended or revised.
Activities that are subject to the requirements of this section are:
Those types of activities that cause or contribute to a violation of the Town's MS4 SPDES permit; and
Those types of activities that cause or contribute to the Town being subject to the special conditions as defined in § 94-2, Definitions, of this chapter; and
The improper management of pet waste as follows:
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 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 permit authorization.
Best management practices. Where the SMO has identified illicit discharges as defined in § 94-2 or activities contaminating stormwater as defined in § 94-9, the Town may require implementation of best management practices (BMPs) to control those illicit discharges and activities.
The owner or operator of a commercial or industrial establishment shall provide, at the aforesaid owner's or operator's expense, reasonable protection from accidental discharge of prohibited materials or other wastes into the MS4 through the use of structural and nonstructural BMPs.
Any person responsible for a property or premise which is, or may be, the source of an illicit discharge as defined in § 94-2 or an activity contaminating stormwater as defined in § 94-9 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 municipal stormwater system (MS4).
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.
Individual sewage treatment systems: response to special conditions requiring no increase of pollutants or requiring a reduction of pollutants. Where individual sewage treatment systems are contributing to the Town's being subject to the special conditions as defined in § 94-2 of this chapter, the owner or operator of such individual sewage treatment systems shall be required to:
Maintain and operate individual sewage treatment systems as follows:
Inspect the septic tank annually to determine scum and sludge accumulation. Septic tanks must be pumped out whenever the bottom of the scum layer is within three inches of the bottom of the outlet baffle or sanitary tee or the top of the sludge is within 10 inches of the bottom of the outlet baffle or sanitary tee; and
Avoid the use of septic tank additives; and
Avoid the disposal of excessive quantities of detergents, kitchen wastes, laundry wastes, and household chemicals; and
Avoid the disposal of cigarette butts, disposable diapers, sanitary napkins, trash and other such items.
Repair or replace individual sewage treatment systems as follows:
In accordance with 10 NYCRR Appendix 75-A and the owner or operator must submit proof to the SMO that a repaired or replaced individual sewage treatment system has been approved by the Dutchess County Department of Health; and
A design professional licensed to practice in New York State shall prepare design plans for any type of absorption that involves:
A written certificate of compliance shall be submitted by the design professional to the Town at the completion of construction of the repair or replacement system.
Emergency situations. The SMO 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 SMO 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 SMO may take such steps as deemed necessary to prevent or minimize damage to the MS4 or to minimize danger to persons.
Suspension due to detection of illicit discharge. Any person discharging to the Town's MS4 in violation of this chapter may have his or her MS4 access terminated if such termination would abate or reduce an illicit discharge. The SMO will notify a violator in writing of the proposed termination of its MS4 access and the reasons therefor. The violator may petition the SMO for a reconsideration and hearing with the SMO. Access may be granted by the SMO 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 SMO 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 chapter without the prior approval of the SMO.
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.
Applicability. This section applies to all facilities that the SMO, or the authorized representative of the SMO, must inspect to enforce any provision of this chapter, 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 chapter.
Access to facilities.
The SMO, or the authorized representative of the SMO, shall be permitted to enter and inspect facilities subject to regulation under this chapter as often as may be necessary to determine compliance with this chapter. 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 SMO or the authorized representative of the SMO.
Facility operators shall allow the SMO, or the authorized representative of the SMO, ready access to all parts of the premises for the purposes of inspection, sampling, examination and copying of records as may be required for compliance of this chapter.
The Town shall have the right to set up on any facility subject to this chapter such devices as are necessary in the opinion of the SMO, or the authorized representative of the SMO, to conduct monitoring and/or sampling of the facility's stormwater discharge.
The Town has the right to require the facilities subject to this chapter to install monitoring equipment as is reasonably necessary to determine compliance with this chapter. 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.
An unreasonable delay in allowing the Town access to a facility subject to this chapter is a violation of this chapter. A person who is the operator of a facility subject to this chapter 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 chapter.
If the SMO, or the authorized representative of the SMO, 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 chapter 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 chapter or an order issued hereunder, then the SMO may seek issuance of a search warrant from any court of competent jurisdiction.
Notwithstanding any 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 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.
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 in-person or 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.
When the Town's SMO finds that a person has violated a prohibition or failed to meet a requirement of this chapter, he/she may order compliance by written notice of violation to the responsible person. Such notice may require, without limitation:
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;
The performance of monitoring, analyses, and reporting;
Payment of a fine; and
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.
Any person receiving a notice of violation may appeal the determination of the SMO to the Town Board within 15 days of its issuance, which 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.
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 SMO, then the SMO 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.
If refused access to the subject private property, the SMO 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 SMO 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.
In addition to or as an alternative to any penalty provided herein or by law, any person who violates the provisions of this chapter shall be guilty of a violation punishable by a fine not exceeding $350 or imprisonment for a period not to exceed 15 days, 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 as a misdemeanor 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 as a misdemeanor 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, repeat violations of this chapter 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.
It shall be unlawful for any person to violate any provision or fail to comply with any of the requirements of this chapter. If a person has violated or continues to violate the provisions of this chapter, the Town may commence a civil action in Supreme Court 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, and may request civil damages in the amounts set forth in § 94-18 in any court of competent jurisdiction.
Where a person has violated a provision of this chapter, he/she may be eligible for alternative remedies in lieu of a civil penalty, upon recommendation of the Town Attorney and concurrence of the SMO. When deciding whether to recommend an alternative remedy, the Town Attorney and the SMO shall consider the following factors:
No one factor is dispositive, and the decision of whether to recommend an alternative remedy shall solely be in the combined discretion of the Town Attorney and the SMO.
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 chapter 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 chapter 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.