[HISTORY: Adopted by the Town Board of the Town of Somers 2-9-2006
by L.L. No. 2-2006.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Critical environmental areas — See Ch. 84.
Environmental quality review — See Ch. 92.
Scenic resource protection — See Ch. 138.
Steep slopes protection — See Ch. 148.
Wetlands and watercourse protection — See Ch. 167.
[1]
Editor's Note: This chapter was originally adopted as Ch. 168,
but was redesignated to maintain the alphabetical sequence of the Code.
The purpose of this chapter is to provide for the health, safety, and
general welfare of the citizens of the Town of Somers through the regulation
of nonstormwater discharges to the municipal separate storm 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 requirements of the SPDES General Permit
for Municipal Separate Storm Sewer Systems. The objectives of this chapter
are:
A.
To meet the requirements of the SPDES General Permit
for Stormwater Discharges from MS4s, Permit No. GP-02-02 or as amended or
revised; and
B.
To regulate the contribution of pollutants to the MS4
since such systems are not designed to accept, process or discharge nonstormwater
wastes; and
C.
To prohibit illicit connections, activities and discharges
to the MS4; and
D.
To establish legal authority to carry out all inspection,
surveillance and monitoring procedures necessary to ensure compliance with
this chapter; and
E.
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 to only a portion of this chapter, the following
terms will have meanings set forth below:
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.
The Federal Water Pollution Control Act (33 U.S.C. § 1251
et seq.), and any subsequent amendments thereto.
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.
New York State licensed professional engineer or licensed architect.
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.
Any drain or conveyance, whether on the surface or subsurface, which
allows an illegal discharge to enter the MS4, including but not limited to:
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
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.
Any direct or indirect nonstormwater discharge to the MS4, except as exempted in § 117-6 of this chapter.
Activities requiring the SPDES permit for discharges from industrial
activities except construction, GP-98-03, as amended or revised.
Municipal separate storm 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):
The Town of Somers.
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 as 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,
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.
Discharge compliance with water quality standards. The condition that
applies where a municipality has been notified that the discharge of stormwater
authorized under their 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 Town of Somers must take all necessary reasonable
actions to ensure future discharges do not cause or contribute to a violation
of water quality standards.
303(d) listed waters. The condition in the Town of Somers'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.
Total maximum daily load (TMDL) strategy. The condition in the Town
of Somers's MS4 permit where a TMDL including requirements for control
of stormwater discharges has been approved by the EPA for a waterbody 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.
The condition in the Town of Somers's MS4 permit that applies if
a TMDL is approved in the future by the EPA for any waterbody or watershed
into which an MS4 discharges. Under this condition the Town of Somers 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 Town of Somers 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.
A permit issued by the DEC that authorizes the discharge of pollutants
to waters of the state.
Rainwater, surface runoff, snowmelt and drainage.
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 DEC as required by Section
303(d) of the Clean Water Act. 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.
The maximum amount of a pollutant to be allowed to be released into
a waterbody so as not to impair uses of the water, allocated among the sources
of that pollutant.
The Town Engineer designated by the Town of Somers to enforce this
chapter.
The Town Engineer's designated office or field representative
designated to assist in the enforcement of this chapter.
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 Town Engineer 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 Town Engineer as may
be authorized by the Town of Somers.
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.
A.
Prohibition of illegal discharges. No person shall discharge or cause to be discharged into the MS4 any materials other than stormwater except as provided in § 117-6A(1). The commencement, conduct or continuance of any illegal discharge to the MS4 is prohibited except as described as follows:
(1)
The following discharges are exempt from discharge prohibitions
established by this chapter, unless the DEC or the Town of Somers has determined
them to be substantial contributors of pollutants: water line 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 fire-fighting activities, and any other water
source not containing pollutants. Such exempt discharges shall be made in
accordance with an appropriate plan for reducing pollutants.
(2)
Discharges approved in writing by the Town Engineer 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 Town Engineer
may deem appropriate to protect such life and property while reasonably maintaining
the purpose and intent of this chapter.
(3)
Dye testing in compliance with applicable state and local
laws is an allowable discharge, but requires a verbal notification to the
Town Engineer prior to the time of the test.
(4)
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 DEC, 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 chapter
if the person connects a line conveying sewage to the Town of Somers's
MS4, or allows such a connection to continue.
A.
Activities that are subject to the requirements of this
section are those types of activities that:
B.
Upon notification to a person that he or she is engaged
in activities that cause or contribute to violations of the Town of Somers'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 of Somers's MS4 SPDES permit authorization.
Where the Town Engineer has identified illicit discharges as defined in § 117-2 or activities contaminating stormwater as defined in § 117-7 the Town of Somers may require implementation of best management practices (BMPs) to control those illicit discharges and activities.
A.
The owner or operator of a commercial or industrial establishment
shall provide, at his/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 premise, which is, or may be, the source of an illicit discharge as defined in § 117-2 or an activity contaminating stormwater as defined in § 117-7, 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.
D.
Every person owning property through which a watercourse
passes, or such person's lease, 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 property. 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.
A.
The Town Engineer 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 Town Engineer 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 Town Engineer 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
chapter may have his/her MS4 access terminated if such termination would abate
or reduce an illicit discharge. The Town Engineer will notify a violator in
writing of the proposed termination of its MS4 access and the reasons therefor.
The violator may petition the Town Engineer for a reconsideration and hearing.
Access may be granted by the Town Engineer 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 Town Engineer 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 Town Engineer.
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
of Somers prior to the allowing of discharges to the MS4.
A.
Applicability. This section applies to all facilities
that the Town Engineer may 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.
B.
Access to facilities.
(1)
The Town Engineer or his authorized representative 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 Town Engineer.
(2)
Facility operators shall allow the Town Engineer 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 chapter.
(3)
The Town of Somers shall have the right to set up on
any facility subject to this chapter such devices as are necessary in the
opinion of the Town Engineer to conduct monitoring and/or sampling of the
facility's stormwater discharge.
(4)
The Town of Somers 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. Such monitoring reports shall be submitted to the office of the
Town Engineer upon completion.
(5)
Unreasonable delays in allowing the Town of Somers access
to a facility subject to this chapter are 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 of Somers reasonable access to the facility
for the purpose of conducting any activity authorized or required by this
chapter.
(6)
If the Town Engineer or his designated representative
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 any order issued hereunder,
then the Town Engineer 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 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 of
Somers 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 Town of Somers 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 three
years.
A.
Notice of violation. When the Town Engineer 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:
(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)
Payment of a fine; 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 chapter 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 of 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 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.
Any person receiving a notice of violation may appeal the determination
of the Town Engineer to the Zoning Board of Appeals 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 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 Zoning Board of Appeals
upholding the decision of the Town Engineer, then the Town Engineer 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
Town Engineer 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 Town Engineer
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 chapter. If a person has violated
or continues to violate the provisions of this chapter, the Town 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 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 Town Code
Enforcement Officer, 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 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.
