[Adopted 8-8-2007 by L.L. No. 5-2007]
This Chapter
163, Article
I, shall be known as the "Prohibition of Illicit Discharges, Activities and Connections to Separate Storm Sewer Systems of the Village of Phoenix Law."
The purpose of this article is to provide for
the health, safety, and general welfare of the citizens of the Village
of Phoenix 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 article establishes
methods for controlling the introduction of pollutants into the MS4
in order to comply with requirements of the SPEDES General Permit
for Municipal Separate Storm Sewer Systems. The objectives of this
article are as follows:
A. To meet the requirements of the SPDES General Permit
for Stormwater Discharges from MS4s, Permit No. GP-02-02, as amended
or revised;
B. To regulate the contribution of pollutants to the
MS4 since such systems are not designed to accept, process or discharge
nonstormwater wastes;
C. To prohibit illicit connections, activities and discharges
to the MS4;
D. To establish legal authority to carry out all inspection,
surveillance and monitoring procedures necessary to ensure compliance
with this article;
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.
As used in this article, the following terms
shall have the meanings indicated:
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.
CODE ENFORCEMENT OFFICER
The designated Code Enforcement Officer of the Village of
Phoenix or any other officer of the Village of Phoenix duly appointed
for the purpose of enforcement of these provisions.
CONSTRUCTION ACTIVITY
Activities requiring authorization under the SPDES Permit
for Stormwater Discharges from Construction Activity, GP-02-02, 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.
DEPARTMENT
The New York State Department of Environmental Conservation.
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 CONNECTION
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 §
163-9 of this article.
INDIVIDUAL SEWAGE TREATMENT SYSTEM
A facility serving one or more parcels of land or residential
households, or a private, commercial or institutional facility, that
treats sewage or other liquid wastes 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.
INDUSTRIAL ACTIVITY
Activities requiring the SPDES Permit for Discharge from
Industrial Activities Except Construction, GP-98-03, as amended or
revised.
MS4
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):
A.
Owned or operated by the Village of Phoenix;
B.
Designed or used for collecting or conveying
stormwater;
C.
Which is not a combined sewer; and
D.
Which is not part of a publicly owned treatment
works (POTW) as defined at 40 CFR 122.2.
PERSON
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.
POLLUTANT
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,
and 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.
PREMISES
Any building, lot, parcel of land, or portion of land, whether
improved or unimproved, including adjacent sidewalks and parking strips.
SPECIAL CONDITIONS
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.
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 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 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.
STORMWATER
Rainwater, surface runoff, snowmelt and drainage.
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. 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.
TMDL
Total maximum daily load, 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.
WASTEWATER
Water that is not stormwater, is contaminated with pollutants
and is or will be discarded.
This article shall apply to all water entering
the MS4 generated on any developed and undeveloped land unless explicitly
exempted by an authorized enforcement agency.
The Code Enforcement Officer of the Village
of Phoenix shall administer, implement, and enforce the provisions
of this article. Such powers or duties imposed upon the authorized
enforcement official may be delegated in writing by the Code Enforcement
Officer as may be authorized by the municipality.
This article is not intended to modify or repeal
any other ordinance, rule, regulation, or other provision of law.
The requirements of this article are in addition to the requirements
of any other ordinance, rule, regulation, or other provision of law,
and where any provision of this article imposes restrictions different
from those imposed by any other ordinance, 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 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.
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.
No persons shall operate a failing individual
sewage treatment system in areas tributary to the Village of Phoenix's
MS4. A failing individual sewage treatment system is one which has
one or more of the following conditions:
A. The backup of sewage into a structure;
B. Discharges of treated or untreated sewage onto the
ground surface;
C. A connection or connections to a separate stormwater
sewer system;
D. Liquid level in the septic tank above the outlet invert;
E. 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; and
F. Contamination of off-site groundwater.
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.
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 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 of Phoenix 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 Village of Phoenix 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.
Any person receiving a notice of violation may
appeal the determination of the Code Enforcement Officer or his designee
to the Village of Phoenix 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 Village Clerk and mail a copy of its decision by certified
mail to the discharger.
[Added 4-16-2019 by L.L.
No. 1-2019]
A. In the event the Village Board, in its sole discretion, determines to establish and offers to and for the mutual benefit of the Village generally, and to all or certain specified Village residents, property owners, and/or other persons having similar legal rights and responsibilities as property owners under this Chapter
163 (and where not so specified as applicable to all such persons or Village residents), then based only upon common characteristics such as the nature or location of violate conditions or property locations, such class' contributions to and/or effect upon the system or infrastructure of such residents' or customers' use of their private or connecting and transmitting components on the system affected thereby needing to be addressed, a capital repair or replacement public works project addressing in whole or part of its public infrastructure relating to or affecting its stormwater management, and which may include addressing violations due to deficient, illegally connected, operated, inflowing or infiltrating private owner infrastructure, including from public or private sanitary sewer infrastructure under ownership, control or for which the owner is legally or contractually liable or responsible adversely affecting private or public storm sewer infrastructure or systems otherwise, a Village-sponsored finance program, a publicly or agency financed or subsidized scope of work, including, in part, the abatement of private owner violations whereby the work shall be performed as a public works project, paid in full by such financing or subsidy and with the expense of abatement of a private owner violation(s), are to be assessed as annual levies in the same manner as Village taxes to the owner(s), based upon a proportionate share of the total project or subproject cost, interest rate imposed upon financing, and the applicable useful life of the abatement measures performed per the New York State Local Finance Law or agency finance program requirements.
B. For purposes hereof:
(1)
The selection of a certain class of eligible owners may be set
by the Village Board, provided that the criteria for selection is
made public and articulated in a Village Board resolution duly adopted
in open session not less than 20 days prior to the first date when
actions other than the preliminary acts required for seeking agency
funding or the issuance of a bond resolution and anticipation notes
for payment or reimbursement to the Village for preliminary reports
and studies and concept designs are to commence; and
(2)
The selection of a class of owners that are required or are
eligible for inclusion in the program may be based upon any criteria
or grounds that are not an illegal basis for selection under local,
state or federal law, including those requirements as may be applicable
as a result of the source of any agency funding assistance; accordingly,
selection based upon owners with private infrastructure issues that
significantly or more significantly and adversely affect the Village
storm or sanitary collection systems or stormwater management; same
may also, however, without limitation, include addressing violations
that exist due to deficient, illegally connected, operated, inflowing
or infiltrating private owner infrastructure, or from public or private
sanitary sewer infrastructure under ownership, control or for which
an owner is otherwise legally or contractually liable or responsible
adversely.
C. A material condition precedent to eligibility for any such program shall be that an owner voluntarily allows inspection of the premises by the Village and any retained professional consultants or contractors, such that the Village is not required to expend time and monies to obtain and execute a search warrant or to execute other enforcement measures; likewise, the owner shall disclose in full any violate conditions, patent or latent, which are or should be or have been evident to the owner. Any other dilatory tactics causing undue expense or delay, however expressly not including the appeal an owner may be entitled to under §
163-19 hereof, may, in the Village Board's sole discretion, disqualify an owner from eligibility for the program.
D. Such owner shall, as a condition precedent to eligibility, grant
to the Village such temporary and/or permanent easement(s) as are
determined to be reasonably necessary by the Village, if any, so as
to permit:
(1)
The Village to perform, install and/or construct, or have performed,
installed and/or constructed to completion, the applicable abatement
measures, including to permit access to the owner's property
during any punch list or warranty/guaranty periods; and
(2)
The Village, its contractors and equipment such access and use
as necessary to maintain, repair or replace that portion of the abatement
measures located within the right-of-way, and/or to determine if any
blockage, leak or similar problem is located within, arises from,
or is otherwise related to that portion of the infrastructure located
within the right-of-way, or arises from the owner's premises
or that part of the infrastructure which the owner is responsible
for.
(3)
Any owner seeking to exercise or enforce any rights hereunder
as against the Village or otherwise opposing, objecting to or contesting
the Village's easement rights as required to be granted hereunder
may not sustain such claim if having neglected or refused, after mandatory
Village selection or voluntary election by such owner, acceptance
by the Village into the program and in reliance thereon the Village
having performed, paid for, or authorized any work which the Village
shall be legally responsible for the payment of, or having any other
expense incidental or relating to such owner's violation, including,
without limitation, incurring of expenses and/or performance of work
on a project that, due in significant part to the owner's failure
or refusal to grant such easement, shall suffer significant time delay,
increase in project costs or be no longer an effective project relative
to its projected effect in mitigating violation conditions, and as
a result requiring suspension, cancellation or material modification
of the project and work required; by the acceptance of project benefits,
regardless of whether by selection or Village mandate, any such owner
shall be deemed to have granted the required easement notwithstanding
its failure to execute or deliver the required easement instrument(s)
or to otherwise perform and abide by the provisions hereof or under
the standard easement instrument proposed for execution.
E. Notwithstanding the provisions hereof related to the easement granted
for access onto privately owned premises, the Village's obligation
for repair, replacement and abatement of its public system, including
and in addition, in this case, such portion of the related infrastructure
on private premises or otherwise the responsibility of the private
owner, aside from the performance and construction/installation of
the capital abatement measures, the Village shall otherwise not be
so obligated, and the same shall be and remain the sole obligation
and duty of the owner, for and to the extent any such need or request
for eligibility, abatement or warranty/guarantee work arises, and
has arisen or first been complained of within the period(s) when any
Village property taxes, sewer, water or refuse charges or rents are
outstanding, or interests/penalties and/or assessments for the capital
improvements contemplated herein are delinquent; provided, however,
that the payment of such delinquencies in full, together with all
interest and penalties shall effect a resumption of the Village's
obligations from such date of delivery through expiration of the warranty
period.
F. Each owner/violator subjecting itself to the provisions hereof acknowledges
by its signature on the agreement contemplated hereby that it has
read and fully understands this section and the agreement based hereby.
Further, such person has requested and accordingly has, where felt
necessary, sought assistance of legal counsel for explanation/ interpretation
of any provisions or parts thereof which the owner/violator does not
completely and clearly understand. The owner expressly acknowledges
that, whilel of benefit to the owner this agreement also benefits
the Village of Phoenix and taxpayers generally by imposing a uniformity
in construction materials beautified and quality of construction and
as such he tends to one's undertaking the project to replace
all laterals and related infrastructure regardless of the existing
infrastructure's lack of visible defects, it being deemed more important
to have the work completed using like materials, the same contractors
and having the same or cheaper versions available in the event of
a defective design or construction.
In addition to the enforcement processes and
penalties provided, any condition caused or permitted to exist in
violation of any of the provisions of this article is a threat to
public health, safety, and welfare, and is declared and deemed a nuisance,
and may be summarily abated or restored at the violator's expense,
and/or a civil action to abate, enjoin, or otherwise compel the cessation
of such nuisance may be taken.
The remedies listed in this article are not
exclusive of any other remedies available under any applicable federal,
state or local law, and it is within the discretion of the authorized
enforcement agency to seek cumulative remedies.
This article shall take effect upon its filing
in the office of the Secretary of State.