A.
Illicit discharges in 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.
B.
Suspension due to the detection of illicit discharge. Any person discharging to the municipality's MS4 in violation of this Part 3 may have their 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. 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 section without the prior approval of the SMO.
A.
Applicability. This § 165-48 applies to all facilities that the SMO must inspect to enforce any provision of this Part 3, 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 3.
B.
Access to facilities.
(1)
The SMO shall be permitted to enter and inspect facilities
subject to regulation under this Part 3 as often as may be necessary
to determine compliance with this Part 3. 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.
(2)
Facility operators shall allow 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 to implement
this Part 3.
(3)
The municipality shall have the right to set up on
any facility subject to this Part 3 such devices as are necessary
in the opinion of the SMO to conduct monitoring and/or sampling of
the facility's stormwater discharge.
(4)
The municipality has the right to require the facilities
subject to this Part 3 to install monitoring equipment as is reasonably
necessary to determine compliance with this Part 3. 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)
Unreasonable delays in allowing the municipality access
to a facility subject to this Part 3 is a violation of this Part 3.
A person who is the operator of a facility subject to this Part 3
commits an offense if the person denies the municipality reasonable
access to the facility for the purpose of conducting any activity
authorized or required by this Part 3.
(6)
If 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 Part 3, 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 3 or any order issued hereunder, then the
SMO 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 illegal discharges or pollutants discharging into
the MS4, said person shall immediately notify the SMO and/or the Town
of Tonawanda and 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 (the SMO, the Town of Tonawanda, the EPA and the
NYSDEC) of the occurrence via emergency dispatch services. In the
event of a release of nonhazardous materials, said person shall notify
the municipality 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 municipality
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 municipality's SMO finds
that a person has violated a prohibition or failed to meet a requirement
of this Part 3, he/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 § 165-50B of this chapter; 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 Part 3 shall be guilty of a violation punishable
by a fine not exceeding $250 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 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 3 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 SMO 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 mall to the discharger. This section
does not create an automatic stay and the Town can take any emergency
corrective action.
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 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.
B.
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.
It shall be unlawful for any person to violate
any provision or fail to comply with any of the requirements of this
Part 3. If a person has violated or continues to violate the provisions
of this Part 3, the SMO 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 Part
3; the following alternative remedies may be applicable in lieu of
a civil penalty, upon recommendation of the SMO, where:
(1)
The violation was unintentional.
(2)
The violator has no history of violations of Parts 1 or 3 of Chapter 165 of the Code of the Town of Tonawanda.
(3)
Environmental damage was minimal.
(4)
The violator acted quickly to remedy violation.
(5)
The violator cooperated in the investigation and resolution.
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 Part 3 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 3 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.
