[HISTORY: Adopted by the Town of Derry 11-18-2008. Amendments
noted where applicable.]
The purpose of this chapter is to:
A.Â
Protect, maintain, and enhance the environment of
the Town of Derry, New Hampshire, and the public health, safety and
the general welfare of the citizens of the Town by:
(1)Â
Controlling discharges of pollutants to the Town's
stormwater system and maintaining and improving the quality of the
receiving waters into which the stormwater outfalls flow, including,
without limitation, lakes, rivers, streams, ponds, wetlands, and groundwater
of the Town; and
(2)Â
Establishing minimum requirements and procedures to
control the adverse effects of increased post-development stormwater
runoff, decreased groundwater recharge, and nonpoint source pollution
associated with new development and redevelopment.
B.Â
Enable the Town of Derry to comply with requirements
of the Town's municipal separate storm sewer system (MS4) general
permit issued by the United States Environmental Protection Agency
under the National Pollution Discharge Elimination System (NPDES)
program and applicable regulations, including 40 CFR 122.26 for stormwater
discharges.
C.Â
Allow the Town of Derry to exercise the powers granted
by the State of New Hampshire through RSA 149-I and other applicable
statutes to:
(1)Â
Exercise general regulation over the planning, location,
construction, and operation and maintenance of stormwater facilities
in the municipality, whether or not owned and operated by the municipality;
(2)Â
Adopt any rules and regulations deemed necessary to
accomplish the purposes of this statute, including the adoption of
a system of fees for services and permits;
(3)Â
Establish standards to regulate the quantity of stormwater
discharged and to regulate stormwater contaminants as may be necessary
to protect water quality;
(4)Â
Review and approve plans for stormwater management
in proposed subdivisions or commercial developments;
(5)Â
Issue permits or approvals for stormwater discharges,
or for the construction, alteration, extension, or repair of stormwater
facilities;
(6)Â
Suspend or revoke permits when it is determined that
the permittee has violated any applicable ordinance or condition of
the permit;
(7)Â
Regulate and prohibit discharges into stormwater facilities
of sanitary, industrial, or commercial sewage or waters that have
otherwise been contaminated; and
(8)Â
Expend funds to remediate or mitigate the detrimental
effects of contaminated land or other sources of stormwater contamination,
whether public or private.
A.Â
For the purpose of this chapter, the following definitions
shall apply unless the context clearly indicates or requires a different
meaning. Words used in the singular shall include the plural, and
the plural shall include the singular; words used in the present tense
shall include the future tense. The word "shall" is mandatory and
not discretionary. The word "may" is permissive. Words not defined
in this section shall be construed to have the meanings given by common
and ordinary use as defined in the latest edition of Webster's Third
New International Dictionary.
B.Â
ACCIDENTAL DISCHARGE
BEST MANAGEMENT PRACTICES or BMPS
CHANNEL
CONSTRUCTION ACTIVITY
CONTAMINANT
DEPARTMENT OF PUBLIC WORKS (DPW)
DIRECTOR OF PUBLIC WORKS
DISCHARGE
ILLICIT DISCHARGE
INDUSTRIAL ACTIVITY
LAND-DISTURBING ACTIVITY
MAINTENANCE
MAINTENANCE AGREEMENT
MUNICIPAL SEPARATE STORM SEWER SYSTEM (MS4)
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM PERMIT (NPDES
PERMIT)
NON-STORMWATER DISCHARGE
NOTICE OF INTENT (NOI)
PERSON
POLLUTANT
POLLUTION
PREMISES
RECHARGE
RUNOFF
SEDIMENT
STABILIZATION/STABILIZED
STORMWATER
STORMWATER MANAGEMENT
STORMWATER MANAGEMENT FACILITIES
STORMWATER MANAGEMENT PLAN
STORMWATER POLLUTION PREVENTION PLAN (SWPPP)
STORMWATER RUNOFF
STREAM
STRUCTURAL BMPS
STRUCTURAL STORMWATER CONTROL
SURFACE WATER
As used in this chapter, the following terms shall
have the meanings indicated:
A discharge prohibited by this chapter, which occurs by chance,
and without planning or thought prior to occurrence.
Proven or accepted physical, structural, vegetative, and/or
managerial practices that, when used singly or in combination, prevent
or reduce erosion, sediment, peak storm discharge, and pollution of
water, that have been approved by the Town of Derry, and that have
been incorporated by reference into the Stormwater Regulations as
if fully set out therein. (See Section 4 of the Stormwater Regulations[1] for recommended best management practices manuals.)
A natural or artificial watercourse with a definite bed and
banks that conducts flowing water continuously or periodically.
Activities subject to the EPA Phase II Storm Water Program
and the NPDES general construction permits. These include construction
projects resulting in land disturbance. Such activities include but
are not limited to clearing and grubbing, grading, excavating, and
demolition.
Any physical, chemical, biological, or radiological substance
or matter in water.
The Town of Derry Department of Public Works and associated
divisions, including, but not limited to, Code Enforcement.
The chief administrator of the DPW who is authorized to assign
DPW staff to oversee the implementation and enforcement of the Stormwater
Regulations and the Town of Derry's Stormwater Ordinance.
To dispose, deposit, spill, pour, inject, seep, dump, leak
or place by any means, or that which is disposed, deposited, spilled,
poured, injected, seeped, dumped, leaked, or placed by any means,
including any direct or indirect entry of any solid or liquid matter
into the municipal separate storm sewer system.
Any discharge to the municipal storm sewer system (MS4) that
is not composed entirely of stormwater and not specifically permitted
through an existing NPDES discharge permit.
Activities subject to NPDES industrial permits as defined
in 40 CFR, Section 122.26(b)(14).
Any activity on property that results in a change in the
existing soil cover (both vegetative and nonvegetative) and/or the
existing soil topography. Land-disturbing activities include, but
are not limited to, development, redevelopment, demolition, construction,
reconstruction, clearing, grading, filling, and excavation.
Any activity that is necessary to keep a stormwater facility
in good working order so as to function as designed. Maintenance shall
include complete reconstruction of a stormwater facility if reconstruction
is needed in order to restore the facility to its original operational
design parameters. Maintenance shall also include the correction of
any problem on the site property that may directly impair the functions
of the stormwater facility.
A document duly executed and recorded in the Registry of
Deeds that acts as a property deed restriction and that provides for
long-term maintenance of stormwater management practices.
The conveyances owned or operated by the municipality for
the collection and transportation of stormwater, including the roads
and streets and their drainage systems, catch basins, curbs, gutters,
ditches, man-made channels, pump stations, and storm drains.
A permit issued pursuant to 33 U.S.C. § 1342(b)
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.
Any discharge to the storm drain system that is not composed
entirely of stormwater.
Application to apply for coverage under the EPA's general
permit for construction activities.
Any and all persons, natural or artificial, including any
individual, firm or association and any municipal or private corporation
organized or existing under the laws of this or any other state or
country.
Anything which causes or contributes to pollution. Pollutants
may include, but are not limited to, paints, varnishes, and solvents;
petroleum hydrocarbons; automotive fluids; cooking grease; detergents
(biodegradable or otherwise); degreasers; cleaning chemicals; nonhazardous
liquid and solid wastes and yard wastes; refuse, rubbish, garbage,
litter, or other discarded or abandoned objects and accumulations,
so that same may cause or contribute to pollution; sediment; floatables;
pesticides, herbicides, and fertilizers; liquid and solid wastes;
sewage, fecal coliform and pathogens; dissolved and particulate metals;
animal wastes; wastes and residues that result from constructing a
building or structure; concrete and cement; and noxious or offensive
matter of any kind.
The contamination or other alteration of any water's physical,
chemical or biological properties by the addition of any constituent
and includes, but is not limited to, a change in temperature, taste,
color, turbidity, or odor of such waters, or the discharge of any
liquid, gaseous, solid, radioactive, or other substance into any such
waters as will or is likely to create a nuisance or render such waters
harmful, detrimental or injurious to the public health, safety, welfare,
or environment, or to domestic, commercial, industrial, agricultural,
recreational, or other legitimate beneficial uses, or to livestock,
wild animals, birds, fish or other aquatic life.
Any building, lot, parcel of land, or portion of land, whether
improved or unimproved, including sidewalks and parking strips
The amount of water from precipitation that infiltrates into
the ground and is not evaporated or transpired.
That portion of the precipitation on a drainage area that
is discharged from the area into the municipal separate stormwater
system.
Solid material, both mineral and organic, that is in suspension,
is being transported, or has been moved from its site of origin by
air, water, gravity, or ice and has come to rest on the earth's surface
either above or below sea level.
Providing adequate measures, vegetative and/or structural,
that will prevent erosion from occurring or reducing the soil erosion
rate such that it approaches that of undisturbed soils. Soils which
are disturbed will be considered stabilized and protected when covered
with a healthy, mature growth of grass or a good covering of straw
mulch (two tons per acre). Mulch is only a temporary measure; ultimately,
the site needs vegetation.
Stormwater runoff, snowmelt runoff, surface runoff, street
wash waters related to street cleaning or maintenance, infiltration
and drainage.
The programs to maintain quality and quantity of stormwater
runoff to predevelopment levels.
The drainage structures, conduits, ditches, storm sewers,
and all device appurtenances by means of which stormwater is collected,
transported, pumped, treated or disposed.
The set of drawings and other documents that comprise all
the information and specifications for the programs, drainage systems,
structures, BMPs, concepts and techniques intended to maintain or
restore quality and quantity of stormwater runoff to predevelopment
levels.
A plan that clearly describes appropriate control measures
that include a description of all pollution control measures (i.e.,
BMPs) that will be implemented as part of the construction activity
to control pollutants in stormwater discharges and describes the interim
and permanent stabilization practices for the site.
Flow on the surface of the ground, resulting from precipitation
and drainage consisting entirely of water from any form of natural
precipitation that is not absorbed or evaporated, and resulting from
such precipitation.
Areas of flowing water occurring for sufficient time to develop
and maintain defined channels but may not flow during dry portions
of the year; includes, but is not limited to, all perennial and intermittent
streams located on U.S. Geological Survey Maps.
Devices that are constructed to provide control of stormwater
runoff.
A structural stormwater management facility or device that
controls stormwater runoff and changes the characteristics of that
runoff, including, but not limited to, the quantity and quality, the
period of release or the velocity of flow.
Waters upon the surface of the earth in bounds created naturally
or artificially, including, but not limited to, streams, other watercourses,
lakes and reservoirs.
[1]
Editor's Note: The Stormwater Regulations
are on file in the Town offices.
The Director of the Department of Public Works
(or his/her designee) shall administer the provisions of this chapter.
The Town Council may promulgate and amend such regulations as may
be necessary and convenient to effectuate the purposes and enforce
the requirements of this chapter.
A.Â
Violation of water quality standard. No person shall
introduce or cause to be introduced into the MS4 any discharge that
causes or contributes to causing the Town to violate a state surface
water quality standard, the Town's Phase II MS4 NPDES permit, or any
state-issued discharge permit for discharges from its MS4.
B.Â
Introduction of prohibited substances. The following
discharges are specifically prohibited and are not meant to be all
inclusive. No person shall dump, spill, leak, pump, pour, emit, empty,
discharge, leach, dispose, or otherwise introduce or cause, allow,
or permit to be introduced any of the following substances into the
MS4:
(1)Â
Any new or used motor oil, antifreeze, or other motor
vehicle fluid.
(2)Â
Any industrial wastes.
(3)Â
Any hazardous waste, including hazardous household
waste.
(4)Â
Any domestic sewage or septic tank waste, grease trap
waste, or grit trap waste.
(5)Â
Any garbage, rubbish or yard waste.
(6)Â
Any wastewater from:
(a)Â
A commercial car wash facility;
(b)Â
Any vehicle washing, cleaning or maintenance
at any new or used automobile or other vehicle dealership, rental
agency, body shop, repair shop, or maintenance facility; or
(c)Â
Any washing, cleaning or maintenance of any
business or commercial or public service vehicle, including truck,
bus, or heavy equipment, by a business or public entity that operates
more than two such vehicles.
(7)Â
Any wastewater from the washing, cleaning, de-icing,
or other maintenance of aircraft.
(8)Â
Any wastewater from a commercial mobile power washer
or from the washing or other cleaning of a building exterior that
contains any harmful quantities of soap, detergent, degreaser, solvent,
or any other harmful cleaning substance.
(9)Â
Any wastewater from any floor, rug or carpet cleaning.
(10)Â
Any wastewater from the wash down or other cleaning
of pavement that contains any harmful quantity of soap, detergent,
solvent, degreaser, emulsifier, dispersant, or any other harmful cleaning
substance; or any wastewater from the wash down or other cleaning
of any pavement where any spill, leak, or other release of oil, motor
fuel, or other petroleum or hazardous substance has occurred, unless
all harmful quantities of such released material have been previously
removed.
(11)Â
Any effluent from a cooling tower, condenser,
compressor, emissions scrubber, emissions filter, or the blowdown
from a boiler.
(12)Â
Any ready-mixed concrete, mortar, ceramic, or
asphalt base material or hydro-mulch material, or from the cleaning
of commercial vehicles or equipment containing or used in transporting
or applying such material.
(13)Â
Any runoff or wash down water from any animal
pen, kennel, or fowl or livestock containment area.
(14)Â
Any water from a swimming pool, fountain or
spa containing any harmful quantity of chlorine, muriatic acid or
other chemical used in the treatment or disinfection of the swimming
pool water or in the pool cleaning.
(15)Â
Any water from a water curtain in a spray room
used for painting vehicles or equipment.
(16)Â
Any contaminated runoff from an auto salvage
yard.
(17)Â
Any substance or material that will damage,
block, or clog the MS4.
(18)Â
Any release from a petroleum storage tank, or
any leachate or runoff from soil contaminated by a leaking petroleum
storage tank, or any discharge of pumped, confined, or treated wastewater
from the remediation of any such petroleum storage tank release, unless
it complies with state and federal standards and does not contain
any harmful quantity of any pollutant.
(19)Â
Any pet waste from a commercial enterprise or
livestock waste.
C.Â
Introduction of earth-type materials. No person shall
introduce or cause to be introduced into the MS4 any harmful quantity
of sediment, silt, earth, soil, or other material associated with
cleaning, grading, excavation or other construction activities, (or
associated with landfilling or other placement or disposal of soil,
rock, or other earth materials) in excess of what could be retained
on site or captured by employing sediment and erosion control measures
to the maximum extent practicable (under the prevailing circumstances).
D.Â
Introduction of sewage and grey water. No person shall
connect a line conveying domestic sanitary or industrial sewage to
the MS4 or allow such a connection to continue. This includes grey
water discharge such as washing machine discharge, sink drains, etc.
E.Â
Service station pavement wash water. No person shall
cause or allow any pavement wash water from a service station to be
discharged into the MS4 unless such wash water has passed through
a properly functioning and maintained grease, oil, and sand interceptor
before discharge into the MS4.
F.Â
Pesticide and herbicide use. No person shall use or
cause to be used any pesticide or herbicide contrary to any directions
for use on any labeling required by state or federal statute or regulation.
Any use of any pesticide, herbicide, or fertilizer in any manner that
the person knows, or reasonably should know, is likely to cause, or
does cause, a harmful quantity of the pesticide, herbicide, or fertilizer
to enter the MS4 or waters of the United States shall be prohibited.
G.Â
Disposal of pesticide and herbicide. No person shall
dispose of, discard, store, or transport a pesticide, herbicide, or
fertilizer, or pesticide, herbicide, or fertilizer container, in a
manner that the person knows, or reasonably should know, is likely
to cause, or does cause, a harmful quantity of the pesticide, herbicide,
or fertilizer to enter the MS4 or waters of the United States.
H.Â
Storage of trash, toxic substances and hazardous wastes.
No person shall allow trash and debris to stand on property or collect
on property or allow the storage of toxic or hazardous substances
on property so as to allow exposure to precipitation and stormwater
runoff, which can affect stormwater discharge to the MS4 or the groundwater.
I.Â
Litter of urban ponds, lakes, streams or river banks.
Any residential, commercial or industrial property boundary, located
within 150 feet of any pond, lake, stream or river bank, shall assure
that trash, debris, materials, containers, grass clippings, leaf and
yard waste, wood chips, material used for cover or any such other
material, does not litter this buffer area by natural means (wind
or storm movement of material), by the careless discard of such material,
or by any other means that displaces these objects from the owner's
property boundary to anywhere within this one-hundred-fifty-foot buffer
zone area.
J.Â
Allowable discharges. Notwithstanding any provisions
to the contrary, the following types of discharges into the storm
drain system are exempt from the prohibitions set herein:
(1)Â
Watering of lawns, landscaping and gardens.
(2)Â
Washing of personal motor vehicles by residents.
(3)Â
Draining of water from swimming pools or spas, after
chlorine content of such water, according to a test kit, shows a zero
reading of chlorine.
(4)Â
Flushing of water lines or other discharges from potable
water sources.
(5)Â
Flows from fire-fighting activities.
(6)Â
Managed minimal amounts of air-conditioning condensation.
(7)Â
Uncontaminated pumped groundwater.
(8)Â
Discharges from rising groundwaters, springs, and
flows from riparian habitats and wetlands.
(9)Â
Noncontact cooling water discharged in accordance
with a valid NPDES permit.
A.Â
Construction general permit.
(1)Â
No landowner or land operator shall begin any site work of any building(s), grading or other land development or any land disturbance activities as outlined in Subsection A(1)(a) through (d) below without first obtaining an EPA construction general permit from the EPA and submitting a notice of intent (NOI) to EPA Region I, receiving acknowledgement, having an approved stormwater pollution prevention plan (SWPPP) and meeting the requirements of this chapter.
(a)Â
Land-disturbing activity disturbing one or more
acres of land.
(b)Â
Land-disturbing activity of less than one acre
of land, if such activity is part of a larger common plan of development
that affects one or more acres of land.
(c)Â
Land-disturbing activity of less than one acre
of land, if, in the discretion of the Town of Derry's Director of
Public Works, such activity poses a unique threat to water, or public
health or safety.
(2)Â
The EPA's general permit contains eligibility restrictions,
as well as permit conditions and requirements. Applicant(s) may have
to take certain actions to be eligible for coverage under this permit.
In such cases, the applicant must continue to satisfy those eligibility
provisions to maintain permit authorization. If the applicant does
not meet the requirements that are a precondition to eligibility,
then the resulting discharges constitute unpermitted discharges. By
contrast, if the applicant does not comply with the requirements of
the general permit, the applicant may be in violation of the general
permit.
B.Â
Industrial general permit. Any facility covered under
the NPDES multi-sector general permit for stormwater discharges associated
with industrial activities at the facility must apply for coverage
with the EPA through submittal of an NOI to EPA Region I, receive
acknowledgement of coverage or continuation of coverage if it is a
renewal of existing coverage, and have an SWPPP for the facility.
(1)Â
All operators of landfills, hazardous waste treatment,
disposal, and recovery facilities and industrial facilities are subject
to Section 313 of Title III of the Superfund Amendments and Reauthorization
Act of 1986 (SARA) 42 U.S.C. § 11023, and industrial facilities
that the Town determines are contributing a pollutant load to the
municipal separate storm sewer system which are sources of stormwater
discharges associated with industrial activity shall comply with best
management practices outlined in the Town's Stormwater Regulations.
A.Â
Any landowner or land operator who intends to obtain coverage for stormwater discharge associated with land-disturbing activities described in § 131-5A above or associated with industrial activity under the NPDES multi-sector general permit or stormwater discharges associated with industrial activity (the industrial general permit) as described in § 131-5B above shall, in addition to the federal permit requirements:
(1)Â
Submit a signed copy of its NOI to the Director of
Public Works for review and approval at least five days prior to the
commencement of the land-disturbing activity on the property and/or
industrial activity at the facility, or if such activity is already
underway upon the effective date of the Stormwater Regulations, the
NOI shall be submitted within 30 days; and
(2)Â
Submit to the Department of Public Works for review
and approval a copy the SWPPP prepared and implemented in accordance
with the requirements of the EPA construction or industrial general
permit or any individual or group NPDES permit issued for stormwater
discharges from the facility. The SWPPP shall be prepared to meet
the requirements of 40 CFR 122.26.
B.Â
Application procedure. The following application procedure will apply for any construction project that meets the criteria of § 131-5A above, whether a new development or redevelopment as outlined within this chapter:
(1)Â
Applications for land disturbance activity permits
must be filed with the Town of Derry's Planning Department and/or
Building Department as required by the Town of Derry Land Development
Control Regulations or Zoning Ordinance,[1] on any regular business day.
(2)Â
A copy of this permit application shall be forwarded
to the Department of Public Works for review.
(3)Â
Permit applications shall include two copies of the
stormwater pollution prevention plan, two copies of the maintenance
agreement, and any required review fees.
(4)Â
Within 30 business days of the receipt of the stormwater
pollution prevention plan and maintenance agreement as required by
this chapter, the Department of Public Works shall inform the applicant
whether the application, plan and maintenance agreement are approved
or disapproved.
(5)Â
If the stormwater pollution prevention plan or maintenance
agreement are disapproved, the applicant may revise the stormwater
pollution prevention plan or agreement. If additional information
is submitted, the Department of Public Works shall have 30 business
days from the date the additional information is received to inform
the applicant that the plan and maintenance agreement are either approved
or disapproved.
A.Â
Any landowner or land operator subject to the general EPA permitting requirements described in § 131-5A and/or B above or whose land disturbance or industrial activity is otherwise determined by the Director of Public Works to have the potential to degrade the quality of the receiving waters into which the stormwater outfalls flow, including, without limitation, lakes, rivers, streams, ponds, wetlands, and groundwater of the Town; or significantly increase post-development stormwater runoff or decrease groundwater recharge, or result in any nonpoint source pollution; or introduce or cause to be introduced into the MS4 any discharge that causes or contributes to causing the Town to violate a state surface water quality standard, the Town's Phase II MS4 NPDES permit, or any state-issued discharge permit for discharges from its MS4 shall be required to comply with the best management practices of the Derry Stormwater Control Regulations dated October 31, 2008, or latest revision thereto and to submit to the Director of Public Works for review and approval a SWPPP, including any information so required by the Director to determine compliance with such regulations.
B.Â
Chloride usage for winter maintenance. The owners and operators of
private streets and private parking lots with 10 or more parking spaces
that are draining to the MS4 located within any watershed that is
impaired for chlorides shall be required:
[Added 5-20-2021]
(1)Â
That any commercial salt applicators used for applications of salts
or other deicing materials to their parking lots or streets be trained
and certified in accordance with Env-Wq 2203; and
(2)Â
To report annual salt usage within the municipal boundaries using
the UNH Technology Transfer Center online tool (http://roadsalt.unh.edu/Salt/).
A.Â
The representative of the Department of Public Works
shall be permitted to enter and inspect properties and facilities
at reasonable times as often as may be necessary to determine compliance
with this chapter.
B.Â
If a property or facility has security measures in
force which require property identification and clearance before entry
into its premises, the owner or operator shall make the necessary
arrangements to allow access to representatives of the Department
of Public Works.
C.Â
The owner or operator shall allow the representative
of the Department of Public Works ready access to all parts of the
premises for the purposes of inspection, sampling, photography, videotaping,
examination and copying of any records that are required under the
conditions of a National Pollutions Discharge Elimination System permit
to discharge stormwater.
D.Â
The Department of Public Works shall have the right
to set up on any property or facility such devices as are necessary
in the opinion of the Department of Public Works to conduct monitoring
and/or sampling of flow discharges.
E.Â
The Department of Public Works may require the owner
or operator to install monitoring equipment and perform monitoring
as necessary, and make the monitoring data available to the Department
of Public Works. This sampling and monitoring equipment shall be maintained
at all times in a safe and proper operating condition by the owner
or operator at his/her own expense. All devices used to measure flow
and quality shall be calibrated to ensure accuracy.
F.Â
Any temporary or permanent obstruction to safe and
easy access to the property or facility to be inspected and/or sampled
shall be promptly removed by the owner or operator at the written
or oral request of the Department of Public Works and shall not be
replaced. The costs of clearing such access shall be borne by the
owner or operator.
G.Â
Unreasonable delays in allowing the Department of
Public Works access to a facility shall be a violation of this chapter.
A delay shall be considered unreasonable if the delay exceeds one
week (seven days), or any length of time if it is determined that
the delay allowed the continuation of a discharge to the MS4 that
is specifically prohibited by this chapter.
H.Â
If the Department of Public Works has been refused
access to any part of the premises from which stormwater is discharged,
and the Department of Public Works 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 designated to verify compliance with
this chapter or any order issued hereunder, or to protect the overall
public health, safety, environment and welfare of the community, then
the Department of Public Works may seek issuance of a search warrant
from any court of competent jurisdiction.
A.Â
Notwithstanding other requirements of law, as soon
as any person responsible for a facility, activity or operation, or
responsible for emergency response for a facility, activity or operation,
has information of any known or suspected release of pollutants or
non-stormwater discharges from that facility or operation which are
resulting or may result in illicit discharges or pollutants discharging
into stormwater, the Town of Derry's separate storm sewer system,
state waters, or waters of the United States, said person shall take
all necessary steps to ensure the discovery, containment, and cleanup
of such release so as to minimize the effects of the discharge.
B.Â
Any person identified above that is required to respond
as described in the previous subsection, or is otherwise required
to provide notification to the state in accordance with RSA 146-A:5
(New Hampshire Oil Discharge or Spillage in Surface Water or Groundwater)
or RSA 147-A:11 (New Hampshire Hazardous Waste Management Act), shall
also provide notification to the Town of Derry Department of Public
Works.
A.Â
It shall be unlawful for any person to violate any provision or fail to comply with any of the requirements of the Town's Stormwater Regulations or this chapter. Any person who has violated or continues to violate these provisions 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 Department of Public Works 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 Department of Public Works is authorized to seek costs of the abatement as outlined in Subsection F.
B.Â
Whenever the Department of Public Works finds that
a violation of this chapter has occurred, the Public Works Director
or his/her designee may order compliance by written notice of violation.
The notice of violation shall contain:
(1)Â
The name and address of the alleged violator;
(2)Â
The address, when available, or a description of the
building, structure or land upon which the violation is occurring
or has occurred;
(3)Â
A statement specifying the nature of the violation;
(4)Â
A description of the remedial measures necessary to
restore compliance with this chapter and a time schedule for the completion
of such remedial action;
(5)Â
A statement of the penalty or penalties that shall
or may be assessed against the person to whom the notice of violation
is directed; and
(6)Â
A statement that the determination of violation may
be appealed to the Administrator by filing a written notice of appeal
within five days of service of notice of violation.
C.Â
Such notice may require, without limitation:
(1)Â
The performance of monitoring, analyses, and reporting;
(2)Â
The elimination of illicit discharges and illegal
connections;
(3)Â
That violating discharges, practices, or operations
shall cease and desist;
(4)Â
The abatement or remediation of stormwater pollution
or contamination hazards and the restoration of any affected property;
(5)Â
Payment of costs to cover administrative and abatement
costs; and
(6)Â
The implementation of pollution prevention practices.
D.Â
Appeal of notice of violation. Any person receiving
a notice of violation may appeal the determination of the Department
of Public Works. The appeal must be received by the end of the business
day at the office of the Administrator within five calendar days from
the date of the notice of violation. Filing an appeal does not relieve
the owner from full compliance with remedial actions outlined in the
notice of violation. Hearing on the appeal from the Department of
Public Works shall take place within 30 days from the date of receipt
of the notice of appeal. The decision of the Administrator shall be
final.
E.Â
Enforcement measures after appeal. If the violation
has not been corrected pursuant to the requirements set forth in the
notice of violation, then representatives of the Department of Public
Works may 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.
F.Â
Costs of abatement of the violation. Within 10 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 assessment
or to the amount of the assessment within 15 days of such notice.
If the amount due is not paid within 30 days after receipt of the
notice, or if an appeal is taken within five days after a decision
on said 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
chapter shall become liable to the Town of Derry by reason of such
violation.
G.Â
Civil penalties. In the event the alleged violator
fails to take the remedial measures set forth in the notice of violation
or otherwise fails to cure the violations described therein within
five days, or such greater period as the Department of Public Works
shall deem appropriate, after the Director of Public Works or his/her
designee has taken one or more of the actions described above, the
Public Works Director may impose a penalty not to exceed $1,000 (depending
on the severity of the violation) for each day the violation remains
unremedied after receipt of the notice of violation.
H.Â
Criminal penalties. For any wanton or malicious violations
of the Stormwater Ordinance or the Rules and Regulations adopted pursuant
to the authority stated in this chapter, the Director of Public Works
may issue a citation to the alleged violator requiring such person
to appear in court to answer charges for such violation. Upon conviction,
such person shall be shall be guilty of a misdemeanor if a natural
person, or guilty of a felony if any other person and may be punished
by a fine not to exceed $1,000 for each day the violation has occurred,
or imprisonment, or both. Each act of violation and each day upon
which any violation shall occur shall constitute a separate offense.
I.Â
Remedies not exclusive. The remedies listed in this
chapter are not exclusive of any other remedies available under any
applicable federal, state or local law and the Town of Derry may seek
cumulative remedies.
J.Â
The Town of Derry may recover attorney's fees, court
costs, and other expenses associated with enforcement of this chapter,
including sampling and monitoring expenses.