[Adopted 12-28-2007 by L.L. No. 4-2007]
The purpose of this article is to provide for the health, safety,
and general welfare of the citizens of the Town of Elmira, New York
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 SPDES General Permit for Municipal
Separate Storm Sewer Systems. The objectives of this article 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;
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; 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.
In accordance with § 10(1)(ii)(a)(11) of the Municipal
Home Rule Law of the State of New York, the Town of Elmira has the
authority to enact local laws for the protection and enhancement of
its physical and visual environment as well as to promote the health,
safety and general welfare of the Town. The Town of Elmira may include
in such local laws provisions for the appointment of any municipal
officer or employees to effectuate and administer such local laws.
This article shall apply to all water and materials entering
the MS4 generated on any developed and undeveloped lands unless explicitly
exempted herein or by an authorized enforcement agency.
Whenever used in this article, unless a different meaning is
stated in a definition applicable to only a portion of this article,
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.
A 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 § 187-15 of this article.
Activities requiring the SPDES Permit for Discharges from
Industrial Activities Except Construction, GP-98-03, as amended or
revised.
The municipal separate storm sewer system.
The Town of Elmira.
A conveyance or system of conveyances (including roads with
drainage systems, municipal streets, catch basins, curbs, gutters,
ditches, man-made channels, or storm drains):
Any discharge to the MS4 that is not composed entirely of
stormwater.
The New York State Department of Environmental Conservation.
The terminus of a storm drain where the contents are released.
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, rock, sand and industrial, municipal,
agricultural waste and ballast discharged into water; which may cause
or might reasonably be expected to cause pollution of the waters of
the state in contravention of the standards.
Any building, lot, parcel of land, or portion of land, whether
improved or unimproved, including adjacent sidewalks and parking strips.
Refuse liquids or waste matter.
DISCHARGE COMPLIANCE WITH WATER QUALITY STANDARDSThe condition that applies where the Town of Elmira 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 Town of Elmira must take all necessary actions to ensure future discharges do not cause or contribute to a violation of water quality standards.
LISTED WATERSTERS — The condition in the Town of Elmira'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) STRATEGYThe condition in the Town of Elmira's MS4 permit where a TMDL including requirements for control of stormwater discharges has been approved by the EPA for a water body or watershed into which the MS4 discharges.
FUTURE TMDL APPROVALThe condition in the Town of Elmira's MS4 permit that applies if a TMDL is approved in the future by the EPA for any water body or watershed into which an MS4 discharges. Under this condition, the Town of Elmira 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 Elmira 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 NYSDEC that authorizes the discharge
of pollutants to waters of the state.
Rainwater, surface runoff, snowmelt and drainage.
An employee, the municipal engineer or other public official(s)
designated by the Town of Elmira to enforce this article. The SMO
shall be designated by the Town of Elmira to accept and review stormwater
pollution prevention plans, forward the plans to the applicable municipal
board and inspect stormwater management practices. For purposes of
this article, the Stormwater Management Officer shall be the Code
Enforcement Officer for the Town of Elmira.
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.
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.
Any natural or man-made swale, stream, channel, drain, or
culvert in which waters flow continuously or intermittently.
Water that is not stormwater, is contaminated with pollutants
and is or will be discarded.
The Stormwater Management Officer(s) [SMO(s)] shall administer,
implement, and enforce the provisions of this article. For purposes
of this article, the Stormwater Management Officer shall be the Code
Enforcement Officer for the Town of Elmira. Such powers granted or
duties imposed upon the authorized enforcement official may be delegated
in writing by the SMO as may be authorized by the Town of Elmira.
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 Subsection A(1) of this section. The commencement, conduct or continuance of any illicit discharge to the MS4 is prohibited except as described as follows:
(1)
The following discharges are exempt from discharge prohibitions established
by this article, unless the Department or the Town of Elmira 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 footer 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 SMO to protect life or property
from imminent harm or damage are exempt, 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 SMO may deem appropriate to protect such life and property
while reasonably maintaining the purpose and intent of this article.
(3)
Dye testing in compliance with applicable state and local laws is
an allowable discharge, but requires a verbal notification to the
SMO prior to the time of the test, unless the test is related to a
residential real estate transaction.
(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 the Department, provided that
the discharger is in full compliance with all requirements of the
permit, waiver, or order and other applicable laws and regulations,
and provided that written approval has been granted for any discharge
to the MS4.
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 article if the
person connects a line conveying sewage to the Town's MS4, or
allows such a connection to continue.
A.
Activities that are subject to the requirements of this article 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 Elmira's
MS4 SPDES permit authorization, that person shall take all reasonable
actions to correct such activities such that he or she no longer causes
or contributes to violations of the Town's MS4 SPDES permit authorization.
A.
Suspension due to 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 discharges. Any person
discharging to the Town of Elmira's MS4 in violation of this
article may have his or her MS4 access terminated if such termination
would abate or reduce an illicit discharge. The SMO will notify a
violator in writing of the proposed termination of its MS4 access
and the reasons therefor. The violator may petition the SMO for a
reconsideration and hearing. Access to the MS4 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 article, without the prior approval of the SMO.
Any person subject to an industrial or construction activity
SPDES stormwater discharge permit shall comply with all provisions
of such permit. Proof of compliance with said permit may be required
in a form acceptable to the Town of Elmira prior to the allowing of
discharges to the MS4.
A.
Applicability. This section applies to all facilities that the SMO
must inspect to enforce any provision of this article, 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 article.
B.
Access to facilities.
(1)
The SMO shall be permitted to enter and inspect facilities subject
to regulation under this article as often as may be necessary to determine
compliance with this article. 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 article.
(3)
The Town of Elmira shall have the right to set up on any facility
subject to this article 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 Town of Elmira has the right to require the facilities subject
to this article to install monitoring equipment as is reasonably necessary
to determine compliance with this article. 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 Town of Elmira access to a facility
subject to this article is a violation of this article. A person who
is the operator of a facility subject to this article commits an offense
if the person denies the Town reasonable access to the facility for
the purpose of conducting any activity authorized or required by this
article.
(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 article,
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 article or any order issued hereunder, then the SMO may seek
issuance of an administrative or search warrant from any court of
competent jurisdiction.
Where the SMO has identified illicit discharges as defined in § 187-13 or activities contaminating stormwater as defined in § 187-16, the Town of Elmira 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 or 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 premises which is, or may be, the source of an illicit discharge as defined in § 187-13 or an activity contaminating stormwater as defined in § 187-16 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 article.
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 and shall
notify the Town of Elmira of such release of hazardous materials in
person or by telephone or facsimile no later than the next business
day. In the event of a release of nonhazardous materials, said person
shall notify the Town of Elmira of the release in person or by telephone
or facsimile no later than the next business day. Notifications in
person or by telephone shall be confirmed by written notice addressed
and mailed to the Town of Elmira 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.
(1)
When the Town of Elmira's SMO finds that a person has violated
a prohibition or failed to meet a requirement of this article, he/she
may order compliance by written notice of violation to the responsible
person. Such notice may require, without limitation:
(a)
The elimination of illicit connections or discharges;
(b)
That violating discharges, practices, or operations shall cease
and desist;
(c)
The abatement or remediation of stormwater pollution or contamination
hazards and the restoration of any affected property;
(d)
The performance of monitoring, analyses, and reporting;
(e)
Payment of a fine; and
(f)
The implementation of source control or treatment BMPs.
(2)
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 article
shall be guilty of a violation punishable by a fine of not less than
$50 but not exceeding $350 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 of not less than $350
nor more than $700 or imprisonment for a period not to exceed 15 days,
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 15 days, or both. 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. The Town
Board shall hear the appeal within 30 days after the filing of the
appeal, file its written decision in the office of the Town Clerk
within 10 days of hearing the appeal 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 Town Board upholding
the decision of the SMO, then the SMO shall enter 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 court order in a court of competent jurisdiction authorizing the
SMO to enter upon the property. The court order may authorize the
SMO to take any and all measures reasonably necessary to abate the
violation and/or restore the property.
C.
The cost of implementing and maintaining such measures shall be the
sole responsibility of the discharger.
Within 15 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
to the Town Board objecting to the amount of the abatement within
30 days of receiving notification of the cost of the abatement. The
Town Board shall hear the protest within 30 days after the filing
of the protest, file its decision in the office of the Town Clerk
within 10 days of hearing the protest, and mail a copy of its decision
by certified mail to the discharger. If the amount due is not paid
within a timely manner as determined by the decision of the Town Board
or by the expiration of the time in which to file a protest, the charges
shall become a special assessment against the property and shall constitute
a lien on the property for the amount of the abatement. Any unpaid
abatement charges shall be added to the tax bill for the subject property.
It shall be unlawful for any person to violate any provision
or fail to comply with any of the requirements of this article. If
a person has violated or continues to violate the provisions of this
article, 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.
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.
Approvals issued pursuant to this article do not relieve the
applicant of the responsibility to secure required permits or approvals
for activities regulated by any other applicable law, code, rule,
act, or ordinance.